Go-karting a risky activity: absence of risk assessment is equally hazardous

At a Church conference in 2012, Ellen crashed a go-kart into a tree at high speed and sustained severe and gruesome injuries to her right leg. Her injuries were so severe that, two years later, her leg had to be amputated below the knee. Her story, and the court proceedings that followed, are a reminder to all schools about the importance of conducting risk assessments before organising events or activities. 

Ellen volunteered to take photographs and videos at a conference organised by the Church. Another Church volunteer, Graeme, organised two go-karts and prepared a race track for conference attendees to use during the lunch break. The conference organiser, who was an associate pastor and full-time employee of the Church, asked Graeme to conduct a risk assessment of the go-karting prior to the conference, which he did not do.

Ellen had never driven a go-kart before. When it was her turn, Graeme showed her the brake pedal which was operated by the left foot, and the accelerator which was operated by the right foot. She drove a few laps around the track and felt comfortable. On her second turn, her go-kart lost traction and began to slide. Ellen slammed her right foot down on what she thought was the brake, as many car drivers would. Instead she accelerated into a nearby tree and suffered the serious injury to her leg.

Was the Church liable for Ellen’s injuries?

At trial, the judge ruled that the Church owed a duty of care to Ellen and to all participants to take all reasonable steps to ensure the go-karting activity was safe. The Church breached that duty by:

• failing to carry out an adequate risk assessment prior to the event;
• not installing any barriers  around trees or bollards;
• failing to give female participants adequate instructions; and
• allowing participants to use the go-karts, which did not have safety features such as safety belts and roll-over protection.

The Church argued that it was not liable for a number of reasons. It argued that the go-karting was a dangerous recreational activity and that there was an obvious risk of injury to Ellen and other participants. It also argued that it had provided a sufficient risk warning to all the go-kart riders. The court disagreed with the Church. Further, no contributory negligence on behalf of Ellen was proven and the court ruled in her favour.

The appeal

The Church appealed the decision on the grounds that the trial judge erred by:

1. finding that the Church did not take all the precautions that a reasonable person in its position would have taken in the circumstances;
2.  finding that Ellen’s injuries would have been less serious had the Church conducted a risk assessment; and
3.  not finding any contributory negligence.

The court dismissed the Church’s appeal, although it allowed grounds 1 and 2 in part.
It all came down to the absence of a reasonable risk assessment. The Church failed to “sit down, discuss the potential risks in detail, preferably with reference to guidelines such as the Australian Standards or kart manuals, and to have documented the risks and suggested precautions to be taken”. In fact, it was only after the conference that Graeme put together a ‘Risk Hazard Assessment Checklist’. Had a reasonable risk assessment been done, the court determined that it was unlikely that the Church would have proceeded with the go-karting. Therefore, the Church’s negligence and its failure to conduct the risk assessment was a necessary condition of the harm suffered by Ellen.

The court dismissed ground 3. Ellen was not contributorily negligent even though she pushed the wrong pedal on the go-kart. A finding of contributory negligence on the part of Ellen would have resulted in the court reducing the damages payable by the Church. However, the Court ruled:
“In assessing whether Ms Dixon was contributorily negligent in her manner of driving, it must be borne in mind that the circumstances called for split second decision-making in circumstances of stress.  Bearing that in mind, and in light of the recognised tendency for people to apply their right foot when intending to brake in an emergency and then, under stress, to apply it harder or not reverse it, we are not persuaded that Ms Dixon was contributorily negligent.”

The lesson

Schools should undertake risk assessments before they run any activity where the risk of injury to the participant is more than insignificant. Schools should also take reasonable steps to address any risks that the risk assessment reveals. Please get in touch with C%9E%A3%E0%B0%AAa%AA%B2%D5%A5T if you need advice about conducting a risk assessment for your event or activity.