Neutral Citation no. [1999] 1932

Ref:

SHEC2859

 

 

 

Judgment: approved by the Court for handing down

Delivered:

21/05/99

(subject to editorial corrections)

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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BETWEEN:

GARY NUGENT

Plaintiff;

and

GODFREY IRWIN SUED ON HIS OWN BEHALF AND ON BEHALF

OF ALL THE MEMBERS OF THE EAST TYRONE CYCLING CLUB

AND THE FEDERATION OF IRISH CYCLISTS

 

Defendants.

 

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SHEIL J

The plaintiff in this action is now aged 24, having been born on 15 October 1974. On Sunday 7 August 1994 he was taking part as a cyclist in an event organised by the first and second-named defendants and known as "the Sperrin Challenge" which took place over a route in the Sperrin Mountains. This was a leisure touring event, as distinct from a race. Cyclists could choose to cycle a 50 or 100 km distance. There were no prizes or points to be gained for completing the course; all one received at the end of the event was a certificate that one had done so. There was a maximum time of 6 hours allowed to complete the 100 km route and a minimum time of 4 hours which clearly indicated, inter alia, that the event was not a race.

The event took place on a fine sunny day. The plaintiff, who was a keen and accomplished cyclist and who was a member of the Irish Cycling Federation, but not a member of the East Tyrone Cycling Club, entered for the event with his brother, each paying a 3 entrance fee for the 100 km route. The "signing-on" sheet, which was signed by the plaintiff on behalf of himself and his brother, and which was the standard sheet used by the Federation of Irish Cyclists stated at the head thereof the following:

 

"I understand and agree that I participate in this race entirely at my own risk, and that I must rely on my own ability in dealing with all hazards, and that I must ride in a manner which is safe for myself and all others. I am aware that when riding on a public highway the function of the marshals is only to indicate direction and that I must decide whether the movement is safe. I agree that no liability whatever shall attach to the promoter, promoting club, race sponsor, the Federation of Irish Cyclists or any of its regional committees or any race official or member of the FIC or any of its regional committees or member of the promoting club in respect of any injury, loss or damage suffered by me in or by reason of the race, however caused."

The plaintiff alleges that when he was about 15 miles along the route and descending a steep hill while negotiating an "S" bend in the road, the wheels of his bicycle came in contact with some loose stones on his nearside of the bend causing him to lose control of his bicycle and to be thrown therefrom, eventually ending up in a ditch on the opposite side of the road, thereby sustaining severe personal injury, loss and damage. The plaintiff, who knows the Sperrin Mountains well as he lives only 8-10 miles from the scene of this accident, stated that he had never ridden this "S" bend on a bicycle before the day of the accident. It is accepted by the defendants that this bend had not been part of the course in the earlier years, since 1991, when "the Sperrin Challenge" had taken place.

The plaintiff alleges that the defendants, as organisers of the event, were guilty of negligence in a number of respects which I summarise as follows:

1. Failing to check the route for hazards, such as loose stones, before the start of the event. It is not disputed that Mr Davison, the Chairman of the East Tyrone Cycling Club, had checked the route by car on the previous Friday, 5 August 1994, having reconnoitred it earlier over a period of time with regard to its suitability for the event. The plaintiff alleges that the route should have been checked closer to the event which started on Sunday, 7 August 1994;

2. Failing to warn participants in the event that this was a dangerous "S" bend, which had to be negotiated with care;

3. Failing to warn participants in the event of the presence of loose stones on the road prior to the commencement of the event;

4. Failing to have marshals at or near the "S" bend to warn participants in the event that they were approaching a dangerous "S" bend and that there were stones on the road;

5. Failing to sweep up, or otherwise remove, the loose stones on the road.

Having seen and heard the witnesses who gave evidence to the court, I am satisfied that the stones at the side of the road were no more than were normally to be expected on any such road in the mountains, anywhere in the country, and that they were relatively small in number and distribution. I do not consider that the defendants were guilty of any negligence in failing to remove those stones from the road prior to the event which, it must be remembered, was a leisure event over a distance of 100 km. Likewise I do not consider that the defendants were guilty of any negligence in failing to warn the plaintiff and other participants in the event of the presence of those stones at the side of the road. Further I am not satisfied that the plaintiff has discharged the burden of proof resting on him to show that those stones were a cause of the plaintiff losing control of his bicycle and ending up in a grass ditch on his offside of the road.

A number of photographs of the "S" bend were produced to the court together with a drawing of the "S" bend prepared by Mr McGlinchey, consulting engineer retained on behalf of the plaintiff. As photographs can be somewhat misleading and I was concerned that they might not perhaps give a true indication to the court of the severity of this "S" bend and the gradient in the road at that point, I considered it advisable, with the consent of counsel for all parties, that I should inspect the locus of the accident for myself, which I did at the conclusion of this trial on 14 May 1999.

Mr Davison, the Chairman of the East Tyrone Cycling Club and who was responsible for the running of "the Sperrin Challenge", conceded in cross-examination by Mr McSparran QC, who appeared with Mr Boyle on behalf of the plaintiff, that there should have been a warning given to participants in the event of the presence of this "S" bend and that they should also look out for the presence of loose stones thereat, which evidence differed from the evidence of other witnesses called on behalf of the defendants in dealing with this point. I nevertheless consider that the bend, having seen it for myself, was no more than was to be expected by anybody on such a mountain road. The contour of the land, which was open moorland, indicated its presence ahead. It was not difficult to negotiate as long as one took care not to take it at too fast a speed. I hold that the defendants were not guilty of any negligence in failing to warn participants in the event of its approach, either before the event commenced or by having marshals posted at or near it; this is particularly so in the case of the plaintiff who, as already mentioned, was an experienced cyclist who knew the Sperrin Mountains well having often cycled in them. I am satisfied that the plaintiff with his experience would have had a good idea of his actual speed at the material time. Initially when asked about his speed in the course of his evidence, he declined to specify a speed but, when pressed by me for an estimate, he stated approximately 50 mph although he did subsequently reduce that estimate of his speed. I accept the evidence of Mr Darren Irwin that he (Darren Irwin) was travelling at approximately 30 mph and that just prior to the accident the plaintiff sprinted past him, standing up out of the saddle and making a big effort to overtake him. I am satisfied that this accident was caused solely by the plaintiff's excessive speed as he negotiated this "S" bend.

I do not consider that the defendants were guilty of any negligence in any respect causing or contributing to this accident.

Even if the defendants, their servants or agents, were guilty of any negligence - and I have held that they were not, I am entirely satisfied that the plaintiff, despite his denials, was fully aware of the waiver at the head of the "signing-on" sheet and that he agreed to the terms thereof. I hold that the plaintiff cannot avoid the terms of that waiver by relying upon the provisions of The Unfair Contract Terms Act 1977 as I hold that the defendants' activities did not constitute a "business" within the meaning of the Act.

The plaintiff's claim is dismissed.


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

------------

BETWEEN:

GARY NUGENT

Plaintiff;

and

GODFREY IRWIN SUED ON HIS OWN BEHALF AND ON BEHALF

OF ALL THE MEMBERS OF THE EAST TYRONE CYCLING CLUB

AND THE FEDERATION OF IRISH CYCLISTS

 

Defendant.

 

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JUDGMENT

 

OF

 

SHEIL J

 

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