Case Comment : Hall v. Brooklands Auto Racing Club (1933) 1 KB 205

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Introduction

If a person consents to harm committed on him, that person cannot be permitted to sue the other for the tort. Consent to such harm can be either implied or expressed. In the case of express consent, the consent is open and either verbal or contractual. In the case of Volenti Non-Fit Injuria, the plaintiff’s consent serves as a defense against him. This was the case of the Volenti Non-Fit Injuria.

Facts 

Certain persons were the owners of a racing track for motor cars. The track was oval in shape and measured two miles or more in circumference. It contained a long straight stretch known as the finishing straight, which was over 100 feet wide and was bounded on its outer side by a cement kerb(A stone edging to pavement or raised path) 6 inches in height, beyond which was a strip of grass 4 feet 5 inches in width enclosed within an iron railing 4 feet 6 inches high. Spectators were admitted on payment to view the races, and stands were provided in which they could do this in safety, but many persons preferred to stand alone and outside the railing. Among the competing cars in a long distance race on this track two cars were running along the finishing straight at a pace of over 100 miles an hour and were approaching a sharp bend to the left; the car in front and more to the left turned to the right; the other car did the same, but in so doing touched the off side of the first mentioned car, with the strange result that the first mentioned car shot into the air over the kerb and the grass margin and into the railing, killing two spectators and injuring others. The course was opened in 1907. No accident like this had ever happened before. 

In an action by one of the injured spectators against the owners of the racing track the jury found that the defendants were negligent in that having invited the public to witness a highly dangerous sport they had failed by notices or otherwise to give warning of or protection from, the dangers incident thereto, and to keep spectators at a safe distance from the track. Judgment having been given for the plaintiff on these findings:— 

Held, that it was the duty of the appellants to see that the course was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee or against dangers inherent in a sport which any reasonable spectator can foresee and of which he takes the risk, and consequently that there was no evidence to support the verdict of the jury. 

Solicitor for Appellants: Wm. Chas. Crocker. 

Solicitors for Respondent: Bryan O’Connor & Co. 

Solicitors for the Third party: Ernest Bevir & Son. 

Issue 

The facts, of which a short summary appears in the headnote, are stated in detail in the written judgments of Scrutton and Greer L.JJ. 

The questions put to the jury and their answers thereto were as follows:— 

  1. Did the defendant Company omit any and what reasonable precaution for the safety of the spectators? Answer—Yes. Failure to exhibit warning notices generally. Failure to increase the height of barrier or number of barriers in view of the increased speed of cars. Failure to keep spectators at a safe distance from the track. Failure to realize that the position of the accident was the fastest part of the course and that special precaution was necessary.
  2. Was the defendant Company guilty of any and what negligence whereby injury was caused to the plaintiff? Answer—Yes. The defendant Company being owners of premises used for the carrying on of a highly dangerous sport at which accidents had happened and were likely to happen, by advertisement or otherwise invited the public to collect to witness a highly dangerous sport, and failed by notices or otherwise to give warning of or protection from the dangers arising from the sport, and as in answer to question No.1. 

They further found that the drivers of the two cars which collided were not guilty of negligence and that the damages were not allowed. Upon these findings, judgment was entered for the plaintiff. The defendants appealed.

There was no evidence to support the verdict of the jury. Their answers disclose a confusion in their minds between danger inherent in the appellants’ premises and danger from the performance which was being witnessed.
Persons who erect structures and invite others, upon payment, to enter upon them for one purpose or another, have an obligation imposed upon them by law. The obligation is to have the structure reasonably fit for the purpose so far as reasonable care and skill can make it. The same would apply if the purpose was to witness a cricket match, an athletic contest or a cinematograph show. If the performance happens to be a dangerous one, that imposes no higher duty on the owner of the structure; he owes no duty to rid the performance of danger. If spectators come to witness a dangerous performance, they take the risk of the danger. A spectator at a cricket ground cannot complain if he is hurt by a cricket ball which is hit out of the ground into the pavilion. When the danger is not within the structure itself but comes from outside, the risk is the spectator’s concern. 

Even if the appellants were bound to take steps to mitigate extraneous dangers, they were not bound to guard against events which no reasonable prudence could have foreseen. They are not insurers, against perils; they are only bound to take reasonable care, and cannot be charged with negligence in not effectually guarding against an accident which had never been known to happen before.

Judgment

Scrutton L.J.  A spectator at a motor race meeting at Brooklands was injured by a car which came through the railing dividing the track from the space appropriated to spectators. 

He sued : 

  1. the Company owning the track, and 
  2. the drivers and owners of the two cars that by colliding caused the car that did the injury to deviate.

The jury found that the second defendants were not negligent, and the plaintiff does not appeal from the judgment in their favor. As to the first defendants, the race meeting was being held by another body, to whom the first defendants had in effect let the track. But counsel for the first defendants accepted liability, if any, for this other body. I only mention this, because it must not be taken that when a landlord lets his premises to a tenant, who produces therein an entertainment, the landlord is necessarily liable for damage caused by the tenant’s entertainment.

Observations

The question of the liability of the Brooklands Company raises questions which are of general application to any cases where landowners admit for payment to their land persons who desire to witness sports or competitions carried on thereon, if those sports may involve risk of danger to persons witnessing them. A spectator at Lord’s or the Oval runs the risk of being hit by a cricket ball or coming into collision with a fielder running hard to stop a ball from going over the boundary, and himself tumbling over the boundary in doing so. Spectators at football or hockey or polo matches run similar risks both from the ball and from collisions with players or polo ponies. Spectators who pay for admission to golf courses to witness important matches, though they keep beyond the boundaries required by the stewards, run the risk of the players slicing or pulling balls which may hit them with considerable velocity and damage. Those who pay for admission or seats in stands at a flying meeting run a risk of the performing aeroplanes falling on their heads. What is the liability of the person taking payment for permission to view these various sports?

The facts relevant to this particular case are hardly in dispute. The racing course at Brooklands is a kind of oval over two miles round, including at one part a long straight stretch over 100 feet wide. On the right-hand side, where many spectators stand, the course was in 1930 bounded by a concrete kerb 6 inches high; on the far side of the kerb was 4 feet 5 inches of grass, and then an iron railing 4 feet 6 inches high, the nature of which can be seen from a photograph showing the fence where it was not injured, and two more showing the damage at the scene of the accident. The photographs also show the ground where spectators can watch the races, rising uphill to various stands in which, if they wish, they can sit. They are absolutely safe in the greater part of this ground, but naturally, they like to get as near the racing as they can, and they place themselves along the railing.

Conclusion

As the accident happened in May 1930; the Brooklands track had been in use for races since 1907, and it is not disputed that this was the first time any spectator had been injured by a car leaving the track. Further, the evidence is undisputed that no car in the straight had ever gone through the railings. One car (Mr. Cook’s) had hit them and bulged them, but not gone through them; another car (Mr. Harvey’s) had apparently in a skid hit them but hot damaged them. Both these cars were at the time engaged in a race for fancy driving, in which the cars came down the straight and turned at an angle of 180 degrees round a tub in the center of the straight, a manoeuvre which would involve running near the railings before you reached the tub. A third car, an Austin, in practice struck the kerb and turned over, but did not apparently hit the railings. Cars had gone through the railings on the sloping and curved banking, and on bends, but none on the straight, and there was uncontradicted evidence that no collision between cars had ever caused damage in the twenty-three years’ history of the track.

On this state of facts, practically undisputed, two questions arose : 

  1. What is the duty of the defendant Company, who take money from the spectator for their permission to him to view the racing on their premises?
  2. This duty being ascertained, was there evidence on which a jury could reasonably find that the defendants had not complied with it? 

The authorities were not clear on the answer to be given to the first question. There are doubts whether an invitee on payment is only entitled to what degree of care. There is a further doubt whether on payment the defendant is entitled to have reasonable safety as an absolute promise or reasonable care to guard against dangers which the landowner or owner of a chattel may know or with reasonable care should foresee. There is further the question whether, when there is nothing but payment, the implied term in the contract must take account of the knowledge of the person paying, or of a reasonable spectator, of the risks which are involved in watching the particular spectacle, such as the risks of being hit by a cricket ball at Lord’s, or the risks in a flying exhibition at Hendon of an aeroplane falling on one’s head. There must be an implied term in the contract where you simply pay your money and pass through a turnstile. 

The difference between dangers of the place and dangers of the entertainment is shown by the two cases of Francis v. Cockrell and Cox v. Coulson.  In Francis v. Cockrell the person taking payment for admission to a stand was held liable for the negligent and improper construction of the stand (though he did not know of it) whereby it fell. It would have been different if the stand was an uncovered stand and the person paying caught a bad cold by sitting in winter in such a stand. The stand would afford no protection against weather, but the spectator would have accepted the obvious risk arising from such lack of protection. In Cox v. Coulson the defendant took money for admission to a theatre, where a traveling company were performing. A spectator was injured by a cartridge fired from a pistol. The county court judge laid down a principle on the lines of Parnaby’s case, which the Court of Appeal held to be too wide. Swinfen Eady L.J. said: “The defendant must also be taken to have contracted to take due care that the premises should be reasonably safe for persons using them in a customary manner and with reasonable care.”

Analysis

The learned judge, of whose summing-up no complaint is made, as it is obviously a summing-up in favor of the defendant Company, put two questions to the jury as against the Company. With due respect to him, I do not understand why two questions were put, as they appear to me to be substantially the same question. They were :

  1. Did the defendant Company omit any and what reasonable precaution for the safety of the spectators ? to which the jury answered  “Yes”. Failure to exhibit warning notices generally. Failure to increase the height of barrier or number of barriers in view of the increased speed of cars. Failure to keep spectators at a safe distance from the track. Failure to realize that the position of the accident was the fastest part of the course and that special precaution was necessary.
  2. Was the defendant Company guilty of any and what negligence whereby injury was caused to the plaintiff ? ” to which the jury answered: “Yes”. The defendant Company being owners of premises used for the carrying on of a highly dangerous sport at which accidents had happened and were likely to happen by advertisement and otherwise invited the public to collect to witness a highly dangerous sport, and failed by notices or otherwise to give warning of or protection from the dangers arising from the sport, and as in answer to question No.(1.). They further found the drivers of the two cars which collided were not guilty of negligence. 

As the case which we are considering is one in which there was a contractual relationship between the plaintiff and the defendants, the first thing to be determined is what was the implied contract between the parties? There can be no doubt that this is a question of law for the Court and not a question for the jury, there being no relevant facts in dispute.

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