Track Day Accident - Court awards costs

[M444TTB]

I haven't been on a track day since I saw a stunning Lotus 11 smashed into segments by a complete pillock in a Z4 at Castle Combe several years ago. 11 had a problem and was parked on the grass well off the circuit just over the rise at the end of the start/finish straight. Z4 driver took the rise way too fast, completely lost it and took the 11 out on the grass. Fortunately the 11 driver was out of his car otherwise he would probably have been killed. The state of the 11 almost made me weep. I couldn't see how on earth the Z4 driver wasn't completely responsible for that. I'd also spent a fair bit of time that day being tailgated by an old M5 and didn't really enjoy a couple of tonnes of metal being 10ft from my head at 100mph. Those two together along with the increasing lairiness of the max power brigade made me give up on track days. They even allow drifting at Combe now goodness me.

I was watching from Quarry on that action day. The Lotus was properly flattened. Was it a Z4 or a Z3 MCoupe? I know the video is on YouTube. Unfortunately he wasn't parked in a safe place but right in the firing line for the start of Quarry accidents. I'm sure they were waving yellow flags though so no excuse.

[M444TTB]

I was talking about all this to my wife last night. The worst case of writing off a fully insured 911 GT2 or so sort of super car makes me shudder. Perhaps sprinting just became relatively cheaper!

Edited to add: I'm taking my number plates off for the next track day, never taking my helmet off and signing up under a false name!

[Wile E. Coyote]

coyote, My text wasnt clear... You cant insure anything that is known, or reasonably foreseeable, insurance can only be for fortuitous events.... If the likely premium approaches the probable maximum loss then you looking at risk funding rather than risk transfer (insurance)

 

You were perfectly clear, but I still don't agree. 

 

The reason for this is that:

1) The probability of a driver experiencing a multi-vehicle incident occurring on a given track day is not 1 (I'd say it's vastly lower).  Indeed, it is lower than the probability of a single-vehicle incident that current track day insurers are comfortable with.

2) The scale of any payout would undoubtedly be higher than a single vehicle track day policy, but arguably lower than the "driver mows down bus queue" scenario that road insurers are comfortable with.

3) The probable maximum loss is highly variable (especially if you were insured on a third party only basis): it is unlikely that you'd be looking at a risk funding scenario.

4) There is a lot of risk mitigation already in place on track days.

 

However, it is not beyond the realms of possibility that, to make the risk profile more palatable (and policies affordable), insurers would require things such as enhanced safety ("track day license"?  HANS? Full cages?) and wish to see TDs operated on a session basis (e.g. by skill / vehicle performance / value?).  Might also result in competition cars being excluded?

[Hellski]

Wouldn't this issue be addressed if TDO's were to place a clause within their T&C's stating, that the individual participating on a TD is responsible for any damages to his vehicle or the vehicle they are in control of, regardless of whether they or another were to blame and themselves nor others would not seek to recover losses from either the TDO or participants of the day?

 

I know I would be happy to sign the above statement and confirms the risk that an individual is entering into participating within a TD or any other form of motor sport; at least if a claim was bought against you, you could submit this in your defence?

 

I'm booked in to do my first TD next Friday and find this case quite worrying and no doubt I'm not the only one! Think I'll draw up my own contract and get everyone to sign it

[Wile E. Coyote]

No it wouldn't.  Those attending almost certainly wouldn't have authority to make such a statement on behalf of a third party (e.g. the insurer, owner of a borrowed vehicle, etc).

[Hellski]

I'm certainly no expert and my comments are only in layman terms but even an insurer on a track day policy states it will only cover damage to the insured vehicle and no third party.

 

This could well be the death of TD's as we know them, Insurers will be very aware of this case and will now use it in attempt to recover their losses; typical of the culture we live in today, nothing is simple and heaven forbid if we start do to something we get enjoyment & fun from

[Wile E. Coyote]

I'm certainly no expert and my comments are only in layman terms but even an insurer on a track day policy states it will only cover damage to the insured vehicle and no third party.

 

That's just detailing the extent to which you are insured under the policy.  

 

It doesn't necessarily prevent claims being made against you beyond the limits of cover, but clarifies that you're personally "on the hook" for these.

[Norman Verona]

It's possible that had the Caterham driver not been insured he would not have brought the claim.

 

So one way around the problem (if there is one) is to not accept anyone on a TD who is insured. Problem is how do they tell. I'm not sure if there was a clause in the T&Cs that said "I do not have any insurance whilst on the track" it would stand up in court.

 

We are assuming that this is the first time anyone has been sued for damages due to a track day incident. Does anyone know if this is the case.

[alexander72]

coyote - you are quite correct but my post I wrote about known conditions wasnt clear as i was A) tired and B) rushing    What i was trying to explain is how, in commercial brownfield land insurance, we used to distinguish between "known conditions" and fortuitous events... as an underwriter I used to hedge my bets on whether a claim would come in, how much it might cost.... Probable Maximum Loss divided by probability of a claim multiplied by policy period and cost of capacity (£'s) would give me a Pure Risk Premium of x.

 

Commercial risk premium is then X + brokerage to broker + profit for insurer IF the policy runs clean for the period.

 

As an example - old coal gas works full on Toluene and Benzene in ground water - poluution already in the ground.  Developer wants to build a B&Q shed on it.  Any clean up of the known pollution is uninsurable as it is a predictable expense.  Any regulatory or third party losses arising in the past or future would be down to me as insurer as regulatory action is "by chance"....

 

Phew.....now we know that TrackDay usage is excluded from general motor polices so we now have specialist insurers to fill that gap for 1st Party Losses only (ie the insured and his car/Personal Injury)

 

I dont know how general insurance law has been apportioned in the case the OP refers to but it would seem that the insurer, as Norm suggested have merely tried to recover what they paid out to the Caterham Driver.  If I was car B driver I would be suing the PI insurance of the instructor who was the tutor when the caterham span - it would be worth a shot compared to bankruptcy.....#

 

 

And back to tree surgery / environmental management :-)

[Mark (smokey mow)]

So one way around the problem (if there is one) is to not accept anyone on a TD who is insured. Problem is how do they tell. I'm not sure if there was a clause in the T&Cs that said "I do not have any insurance whilst on the track" it would stand up in court.

Speaking personally I don't take my car on track (either for TD's or sprinting) without insurance. My car cost a lot to put together and i wouldn't particually want to be left financially out of pocket if through no fault of my own i get driven in to. I'm sure there are many others with much more expensive cars that likewise do similar.

From what I've read of this case so far I don't personally see that any fault lies with either of the drivers, but instead the insurer found reason (of which we don't yet know what) to be able to revcover their costs from the civic driver.

[jeff oakley]

If I was a track day operater I would just refuse anyone who has trackday insurance then everyone would be equal in liability terms. It would be sad if this changes the hobby significantly.

[alexander72]

Smokey, nail and head mate - in ALL insurance policies the insurer has the right to "step into the shoes" of the insured and use legal process to recover monies....

[alexander72]

I have a solution, just put one car out on track at a time and time them to see who is quickest......... just sign up all the TD crowd into the Speed Series forthwith!!!

[Wile E. Coyote]

Interesting post over on PH from one of their resident barristers:

 

"Some points to bear in mind:-

(1) There is a contract between each driver and the track operator, but no contract between drivers.

(2) Therefore, liability as between drivers is governed by ordinary common law principles as to duty of care and negligence. Negligence is falling below the standard of a reasonable driver in the circumstances.

(3) It is never possible to disclaim liability for personal injury or death.

(4) Liability for damage to property can be limited and excluded in some circumstances by contract, but there is here no relevant contract. The agreement with the track operator is about the liability of the operator.

(5) We don't have the full facts of the accident. The Court did.

(6) As agtlaw says, this case does not set a precedent."

 

(1) had occurred to me when signing disclaimers in the past, but (2) and (3) give food for thought - it'll be interesting to see if details of how negligence was established come out.

 

Jeff, based on the above quote, I'm not sure that the presence of an insurer in the mix changes things.  There doesn't seem to be anything stopping a driver attempting to establish negligence directly.

[Mark (smokey mow)]

If I was a track day operater I would just refuse anyone who has trackday insurance then everyone would be equal in liability terms. It would be sad if this changes the hobby significantly.

i would fear that this would create a shift in not only the type of cars we see on tack but also driving standards. Without insurance how many would still be prepared to take their exotica on track? Or would they instead spend £1000 on a "shed" they wouldn't get upset about if it were to end the day upside down in the kitty litter.