The End of Trackdays?

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The rider turned up with eight mates, all experienced riders known to the trackday organisers. He was advised by staff to start off in a slower group because he’d never been there before, but he cajoled and pleaded and badgered them to let him go with his friends. The staff agreed. It was their mistake. And then, when he fell off, 15 laps later, he threatened to sue the organisers for £250,000.

The rider’s bluff was called and he backed down immediately. He was just talking tough. But it is a sad fact that right now trackday organisers are spending tens of thousands of pounds a year trying to keep themselves out of court. The company that owns the larger proportion of Britain’s racetracks reckons they spend “over £700,000 every year keeping ourselves out of jail” because of trackday claims. And it’s not because they’ve been reckless or that safety standards have suddenly slipped: it is because they have been targeted by riders who came off their bikes and thought that they’d try their luck. Trackdays are the latest target in the cynical world of “no win, no fee” lawsuits.

They’re also big business in the UK and abroad, with four major operators and dozens of smaller ones annually turning over in excess of £30m between them. In a typical year, riders have more than 450 events to choose from at tracks all over the country. But as everyone knows, some of those riders are going to fall off. “If you want to come into this environment and then blame someone if you have an accident, then stay on the road,” says Kevin Healy of Focused Events, one of the biggest trackday organisers and now in its 10th year of operation. “It can be a dangerous activity and riders choose to put themselves there. You simply can’t have your cake and eat it.”

Kevin admits that two riders have tried – unsuccessfully – to sue him to date, explaining that he managed to fight off both claims thanks to some “great witnesses” who were able to put serious question marks over the claimant’s versions of events. “It cost me several thousand in legal fees, but the most annoying thing is that it eats up your time,” he says. “You’re trying to keep your eye on the ball and it’s a real distraction, getting out the paperwork, making video from the day (all of Focused Events’ rider briefs are taped in case they’re needed later in court) and tracking down witnesses. It’s a pain in the arse.”

It’s not limited to trackdays, either. In October 2003, Alex Young* loaned his Aprilia RSV-R racebike to an established club racer for a race at Brands Hatch. There was “a racing incident” at the entrance to Paddock Hill bend during a practice session, another rider crashed, and Alex is being sued for negligence for “failing to tell the rider of my bike how to behave during a practice session.” Five years later the case is on-going and Alex is looking down the barrel of a £100,000 court case, still unsettled today.

Mention the words ‘trackdays’ and ‘suing’ to TWO’s James Whitham and the air will turn blue. James used to run a trackday company called Speed Freaks and cites legal action from a rider who fell off as one of the reasons he finally wound up the company in 2005. “He was just a wanker, basically,” says James, understated as always. “He slid off at a left-hander at Cadwell, a real nothing of a crash at about 20mph. He got back on and rode back to the paddock, a bit shaken up, but there was nothing wrong with him. I saw him and he said, ‘I can’t believe I’ve been so daft’.” A week later, Speed Freaks received a letter from the rider’s solicitor claiming that he was so badly injured he could no longer leave the house. “They said he couldn’t even have sex with his wife,” James laughs today. “My solicitor said we should settle out of court but I said no way, because it really grated with me. But in the end, that’s what we did, and it cost me four grand, plus legal fees.”

The encounter left a bitter taste in James’ mouth, but as one of the smaller operators he was already finding it increasingly difficult to squeeze a good profit out of trackdays. “It had gone from £8,000 to hire Donington for the day in the mid-90s to about £17,000,” he says. “You had to be full to make a profit: there were days when we lost ten grand – although we had good days, too – and it all just started to seem too risky. Health and safety legislation was getting ridiculous as well: it was all about risk assessment and procedural analysis, but it wasn’t about making the day safer – it was about being seen to make the day safer so you had a load of paperwork to hold up in court in case anything went wrong.”

Simon Bradley is the author of Motorcycle Trackdays For Virgins and a long-standing trackday rider: he says that another big threat has recently surfaced in the form of “Draconian” noise restrictions. “People move into an area – and they must know it’s next to a race track – and then complain about the noise,” he says. “Worse, the councils listen to them. It’s happened at Castle Combe and also at Donington – which is on the approach to East Midlands airport – where you’ll get black-flagged if you’re 0.1 decibel over the noise limit.”

Ironically, the “American-style” suing culture which is starting to sweep across Britain isn’t so much of a problem across the Atlantic. Says US bike solicitor Bill Weiss (www.wildbill-law.com), a veteran lawyer who has dealt with hundreds of motorcycle cases, “The courts here have defined a doctrine called ‘assumption of the risk’, which insulates track owners and organisers of track events to a great degree. It states that you cannot complain about injuries sustained while participating in the activity.” But it’s different in the UK. “Liability for personal injury and death cannot be contracted out of,” says British solicitor Phil Shuker, legal director at www.bikersadvice.com, which offers online independent advice and resources for bikers. “The best thing that organisers can do here is take out a rattling good insurance policy because waivers will not normally absolve them from personal injury claims.”

It’s no surprise, then, that Whitham cites escalating insurance costs as another reason for his departure from the trackday industry. He claims that policy fees rose disproportionately over a 10 year period. Kevin Healy believes it is his job – and that of the other trackday organisers – to work together to ensure that safety standards, waivers, and insurance policies become ever more water-tight to keep “the greedy few” at bay. “It’s not just the organisers they go after,” he warns. “There are people who try to sue other riders when things go wrong, too. But if your mate’s telling you that he’s thinking of suing some bloke he claims knocked him off at Donington or wherever, make sure you ask him if he really wants to be known as the bloke who screwed up trackdays forever.”

The nightmare scenario is one in which a couple of successful prosecutions bring about sweeping changes within the industry – and British trackdays start to mirror those in America. “You can’t just turn up and say, ‘I want to go with the advanced group’,” says Kevin. “In America, you have to prove you’re up for it. It’s like being signed off for a licence. Then there are really strict overtaking rules, and we’re going to go that way if we’re not careful and it will kill it.”

To British trackday organisers this is anathema – because many of them are as passionate about bikes and the freedom that trackdays bring as their customers are. “15 years ago, most circuits had tumbleweed rolling down them Monday to Friday; now they’re booked out,” finishes Kevin. “Trackdays offer a great way for people who like bikes to test themselves and enjoy their bikes safely, and we’re doing all we can to make sure that a small-minded minority don’t get their horrible way.”

LEGAL CASE STUDY

“I’m being sued because my rider apparently caused another to crash on a racetrack!”

In October 2003, Alex Young* was managing a small club racing team when his rider allegedly caused another to crash. He heard nothing at the time, but four years later, the writ arrived on his doorstep. This is his story.

“In 2003 a young racer rode our bike, an RSV-R, for the last race of the season. He won one race and was second in the other, and everyone was happy. End of story. Or so I thought. Because four years later, I got a writ saying that I was being sued for an accident that had happened on the Friday practice. If a rider causes a accident the race director will usually come down from the tower and tell you off. He would then say it was a racing accident, or something more serious, but nothing like this happened. I’d heard nothing from the rider, nothing from anyone else, then suddenly this. Four years later!

What is alleged to have happened is this. The claimant says that going into Paddock Hill bend at 120mph the rider on my RSV collided with him, hit his brake lever which broke off, therefore making the claimant crash. He went to hospital, and is now suing me for negligence with a big BUPA medical bill behind him. He claims that I am negligent because I should have told my rider how to behave and be careful in practice. Because he was riding our bike, the claimant says this was my responsibility.

The version of events from my rider was that he was trying to get past the guy, who kept closing the gap between them, so he decided to wait for the straight. He overtook him, then remembers getting hit from the back, but he carried on and didn’t fall off. So I am now being sued for over £100,000 in fees and medical bills, and it just keeps going up. Initially the claimant was suing my racing company, but when he learned that no longer exists, he’s coming after me personally. It’s a nightmare.

The only money I have is the equity on our home, and we could lose it all because of this. I have a house which is worth maybe £300,000, I have a £200,000 mortgage, so if I sell the house maybe I will have the money to pay. The thought of having my daughter and wife living on the street is horrendous for me. Club racing is not professional racing. You work hard all bloody week just to pay for the tyres, then something like this happens? It’s insane.

The claimant’s solicitor keeps asking for mediation so we can come to an agreement. My position is: what agreement? We have nothing to agree on. I keep asking what their evidence is, where is the proof that this incident actually happened. I have a letter from the clerk of the course that it was a racing incident, nothing else. I ran the team, so apparently I was responsible for the rider’s actions? It’s not even about the alleged incident anymore, it’s more about me being the boss with a house who can therefore be sued.

The effect on my family has been devastating. I don’t know whether to laugh or cry sometimes, this whole thing is so crazy. I barely sleep some nights worrying about this situation. I’ve moved to Portugal for now, and forget about racing, forget about helping anybody because maybe if I touch a spanner, I might be responsible for something. My wife is constantly worried whenever a letter arrives.

Five years after the alleged incident happened, the case is still on-going and awaiting an agreement. I owe £8,000 in legal fees, which my lawyer keeps asking for, but I can’t afford to pay him. I have transferred my house into my wife’s name to safeguard it, but my solicitor has told me that they can still come after her for the value of the property. So now I have to consider divorcing my wife to protect the house and my children. I’m genuinely scared, because if this guy wins this case then anybody who rides a bike on a circuit in the UK is at risk.”

*For legal reasons, Alex Young is a pseudonym