Asif Ahmed, a 47 year old lawyer in the UK, had owned a mountain bike for 12 years. He had regularly ridden his bike on the road but had only ridden off road on a few occasions. He had never ridden his mountain bike in rough terrain. He decided to pursue his passion for mountain biking by undertaking a course in off road mountain biking. He found and paid for a course online. The mountain biking course was designed for beginners.
On 25 March 2012 Asif attended the course. As part of the course the instructor, Leon McLean, took him to a section of the bike trail known as BKB or “Barry Knows Best” which consists of a single track that descends through wooded terrain. The group commenced riding on BKB with Leon until they arrived at a steep gully. The instructor provided a bit of training at the top of the descent before asking each of them to ride down the steep gully.
Asif’s first attempt was successful however he was a little shaky and had to steady himself from falling from his bike. He was advised by the instructor to have a second attempt. On this attempt the instructor told Asif to start riding his bike some way back from the edge of the gully so he could gain some extra speed prior to his descent down the gully.
Asif made a second attempt. He aimed to do what the instructor had told him and increased his speed. As he rode over the top of the slope he mistakenly took a different path down the track because he was unable to see over the top of the gully as he approached it. As he descended down the slope his bike slammed into a grassy mound causing him to be catapulted through the air, over the handlebars. He landed heavily on his neck and lay still. As a result of the accident, Asif became a paraplegic.
Asif sued the riding instructor for negligence and/or breach of contract.
What the Courts in the UK found
This case was heard before Mr Justice Jeremy Baker in the England and Wales High Court. On 10 November 2016 Justice Baker handed down his decision in relation to the issue of who was at fault for the accident.
Asif’s lawyers provided evidence at the trial from William MacKay who had been involved in mountain bike training for over 30 years. Mr MacKay gave evidence to the court that…
Asif did not receive appropriate instruction and training before attempting to ride down the steep gully.
The lawyers for Leon McLean provided evidence at the trial from Richard Martin, who was a technical leader in the field of mountain bike coaching. Mr Martin gave evidence to the court that Asif had received adequate instruction to enable him to ride down the gully safely.
Justice Baker noted that the reason for Asif booking into the course was not to have a thrilling day out but rather to ensure he could pursue his passion for mountain biking in a safe and effective manner. He accepted that Asif was not an experienced mountain bike rider and that prior to this course he would not have known how to safely ride a mountain bike on this type of steep terrain.
The trial judge accepted the evidence of Mr MacKay over Mr Martin and formed the view it was essential for the instructor to make sure he tailored the course to ensure the safety of the most inexperienced riders. He found that the instruction given to Asif by Mr McLean was inadequate.
The trial judge held that…
Asif was not the ‘author of his own misfortune, and therefore liable for the accident’.
He held that Mr McLean was also responsible for Asif’s accident because he did not carry out his instruction with ‘reasonable skill and care’.
The trial judge did find that Asif was partly responsible for his injuries because he did not inform the instructor that he felt the ride down the slope was beyond his capacity. He therefore found that Asif had contributed to his accident. He found that Asif was 20% responsible for his accident and Mr MacLean, the instructor, was 80% responsible for Asif’s accident.
Who else knows...
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Statistics for spinal cord injuries sustained in Australia
Spinal injuries from cycling accidents in Australia are not uncommon.
According to the national statistics for spinal cord injuries from case registrations to the Australian Spinal Cord Injury Registry approximately 80% of all spinal cord injuries sustained in Australia were caused by traumatic injury such as accidents.
The graph below represents the different causes of spinal injuries recorded in Australia:
Leisure activities which includes cycle related injuries has been documented under other causes and represents 8% of all spinal cord injuries sustained in Australia.
What would happen in Queensland?
If this situation arose in Queensland it is possible that a claim could be made for negligence against the instructor. However, the injured person would have to overcome the Civil Liability Act 2003 (Qld). This Act contains a specific section that allows a person to escape responsibility for the injuries of another if it can be shown that the injuries were sustained due to an obvious risk resulting from a ‘dangerous recreational activity’. A dangerous recreational activity in Queensland means ‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.
It would most certainly be argued that mountain biking would fall into this category and therefore this section would be difficult to overcome. However, in the situation of Asif, he had paid for and was participating in a course under the guidance of an instructor. In those circumstances, a person in Queensland may be able to successfully bring a claim against the instructor for breach of contract. A claim made for breach of contract means that the Civil Liability Act 2003 would not apply.
What that means for Queensland mountain bike riders
In Queensland, if someone pays for and undertakes a particular type of instruction course and suffers injuries during that course, they may be able to successfully sue the instructor for a breach of negligence and/or breach of contract.
However, it will really depend on the circumstances surrounding the accident.
Written by Sharee Yauga | Paralegal
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