[2025] EWHC 1844 (KB)

On my findings of fact, the pleaded claim was not made out on the mechanism of the accident. It was not caused by “out of sight” guiding. It was not caused by the Claimant going too fast because he was trying to keep up with a disappeared guide. It was caused by accidental throttle use by the Claimant due to failing to follow the instructions which he had been given about safe operation during a left turn, with the guide well in sight before both turns 1 and 2.

I do not consider that supplying the Lynx Xtrim 900 in ECO mode to the Claimant breached the local standard. I consider that about 5 minutes was an appropriate length for a briefing for just 2 customers. I find that the briefing complied with local Finnish standards. All of the allegations of negligence in the Particulars of Claim were not made out save for one, which I shall now consider. AP did not look back on straight 2. I find that he should have looked back and this was a breach of duty. I accept Mr Satta’s and Mr Klammer’s evidence on this. However, this failure had no causative effect. I find that the Claimant would have been 20 or so metres behind AP on straight 2, going at AP’s pace and driving confidently.

As for the decision to change the mode of the Xtrim 900 at the stop, the joint Finnish Law experts agreed that, after a reasonable time of riding, such a decision can be made by the guide for a beginner. Despite my express request for them to be asked what they meant, neither party led evidence from them jointly in response. Mr Klammer advised that 600 -700 m was too short to decide. Mr Wright, who was not called as the SM expert for the Defendant, said that there was not much difference in acceleration but there was a more sluggish acceleration in ECO. I have rejected most of Mr Gales’s evidence as lacking impartiality. The joint experts in Finnish Law agreed that changing the mode was commonly done. The mode decision was a matter of judgment in the particular circumstances. AP was not guiding a 17 year old, new car driver. He was guiding a mature, supercar and jet-ski aficionado, who had ridden confidently and wanted more speed. The Claimant was prepared to leave his partner behind to increase his own enjoyment. He had managed 10-12 turns before the stop. AP was going to guide him around the rest of the track. On balance, I do not consider that the Claimant has discharged the burden of proof just by Mr Klammer’s opinion. I consider that, on this issue, Mr Klammer was applying his own best standard instead of the local industry standard. LA use Xtrim 900s for beginners. Some, but not many, want more speed and acceleration. Some are given just that after a safety briefing and practice. Whilst this is a managed freedom of choice point, on balance I consider that AP was within the local standard to allow the change to Standard mode, so long as: (1) he gave the two part warning: there will be more power so take more care, and (2) he combined that with a slow speed build up on ride 2, and (3) he used in-sight guiding on straights and corners, all of which I find that he did. In any event, I do not consider that the change of mode had any proven causative effect on the accident. Once the Claimant had made the error of pressing the throttle at the apex of turn 2, the “die was cast”.