[2025] EWHC 1844 (KB)

In the pre-action protocol (PAP) letter the Claimant asserted that he was given a briefing for less than 5 minutes covering: starting the SM; the brake; the throttle and leaning into turns. It did not cover: the emergency stop button or the engine cut out tether. They set off and, after 10-15 minutes they stopped, having ridden at speeds up to 30 mph (48 kph) through trees. The guide told the Claimant he was doing well and suggested splitting off from his partner to “have some fun”. The guide changed the mode of the SM to “Sport” and gave no explanation. They set off on ride 2, leaving the Claimant’s partner behind. The guide went at a higher speed (40 mph which equates to 64 kph) having told the Claimant to follow him. Within a couple, of minutes “when approaching a turn, Mr Cannestra lost control of the snowmobile, and ended up driving off the path, striking a tree”. Fault was alleged through the Defendant failing: to provide adequate instructions; to explain the emergency stop button or how to perform an emergency stop; to allow the Claimant to practise adequately on open terrain including emergency stops; to advise on or attach the tether cord; to assess the Claimant’s ability before increasing the power mode; to give additional instructions on cornering at high power or speed; to provide an opportunity to practise such turns in open terrain; by increasing the speed beyond the Claimant’s ability and experience so that it was dangerous near trees; by exposing the Claimant to a foreseeable risk of harm. This letter did not allege that the guide went so fast that he was out of sight when the Claimant exited turn 1. This is relevant because by the time the claim was pleaded, that new allegation became central.

In its PAP response, the Defendant asserted on 15.2.2021 that: the briefing lasted 5 minutes or more; the two guides provided an appropriate briefing; the Claimant was briefed whilst the guide sat on a SM and demonstrated: how to position; how to lean into turns; the throttle and the brake; the emergency stop button and the tether cord. Then the Claimant and his partner were sat on SMs and shown again, so that both demonstrated that they understood. Then hand signals were covered and they were advised on safe separation between SMs. The Claimant commented that although he was a novice he had operated jet-skis which he said had similar controls. They set off. The Claimant operated the SM confidently. KM, his partner, was more timid and slower. 1/5^th of the way round the track they stopped and the Claimant hit the emergency stop button to turn his engine off. The guide complimented the Claimant on his competence. They agreed to split off and go faster. They told the other guide and KM. The guide put the Claimant’s SM into Standard power mode and warned him that it was “more sporty” and would enable faster driving and to be more careful and follow the guide’s lead. They set off for ride 2 and the speed was increased to 60 kph on longer straights and 30-40 kph on other straights but reduced to 10-20 kph at corners. The Claimant continued to drive competently and maintained an appropriate separation. 3/5ths of the way round the track, the accident occurred. The Claimant had successfully negotiated 20-30 corners by then. The guide did not see the crash. From the tracks in the snow the Defendant asserted that the Claimant lost control in the middle of the turn, not when approaching the turn. After the crash, near the ambulance, the Claimant told the guide that his glove had become stuck, he had accidentally accelerated and gone off the track. A few days later the Claimant wrote to the Defendant stating that the accident was his “error and” his “responsibility”. Liability was denied and the allegations of negligence were denied.

In the Particulars of Claim, dated May 2023, the Claimant asserted that the briefing took approximately 5 minutes, was partly on and partly off a Lynx Xtrim 900cc SM (this was a change from his PAP letter). It covered: starting the SM, how the throttle and brake were to be operated and the need to lean into turns. It did not cover: the emergency stop button or the tether cords and these were never attached. It did not cover the details of the track or the possible risks. There were no signs or flags marking the track. On ride 1, they rode for 10-15 minutes (this was later changed to 1-2 minutes) at speeds up to 30 mph (see the speed conversion above) then stopped and the mode was changed on the Claimant’s SM from ECO mode to “another mode” (this was a change from the PAP letter) with greater power and throttle response and the risk of understeer. No further briefing was provided. The visibility was limited by snow and sunset and they rode at approximately 40 mph (conversion above), the guide was pulling away and the Claimant was “unable to keep up”. Within a few minutes:

“27.

… the two snowmobiles approached a series of two left hand bends, separated by a straight of approximately 32 metres. The Claimant had lost sight of Mr Pitkanen due to the increasing gap between them and consequently was unaware of the second of the series of left-hand bends on the short straight section of track on the approach to it. As he entered the second bend he lost control of his snowmobile and veered off the track into deep snow then into collision with a tree. …”

This “disappeared guide” assertion had not been in the PAP letter. A plan was inserted into the pleading then the Claimant pleaded that:

“28.

The approach to the point on the track where the Claimant lost control of the snowmobile was relatively straight for about 80 metres. There was a slight downhill gradient. There were trees on both sides of the track. There was no visual indication of the presence or nature of the bend.”

The words in para. 28 mix up the approach to turn 1 with the approach to turn 2. The 80 metre approach was straight 1 and that approached turn 1. The approach to turn 2 was shorter (18-32 metres - straight 2). In his witness statement provided later he admitted that he was aware of turn 1 because he saw the guide make that turn.

The particulars of negligence, in para. 29 were: (a) inadequate briefing, in particular failing to inform of: the emergency stop button and its use (non-causative); not attaching the tether cord (non-causative); the layout of the track and the potentially hazardous bends and corners; the more severe bends; the powerful nature of the SM and the tendency to understeer. (b) No flags or signs or warnings (abandoned later). (c) Changing the mode to Standard or Sport, neither being suitable for a novice. (d) Failing to give a further briefing on the increased power and throttle response and the tendency to understeer and how to cope. (e) Failing to arrange practice in a safe location. (f) The guide riding too fast. (g) The guide failing to stay in sight and keep a safe separation distance. (h) The guide failing to stay in sight of the Claimant with reduced visibility due to snow, sunset and failing to realise that the Claimant would attempt to “keep up”. (i) The guide failing to warn the Claimant to slow down before two left turns. (j) Leaving the Claimant to fend for himself. It was asserted that it was reasonably foreseeable that the Claimant would try to catch up.

In the Defence the Defendant denied liability and pleaded that the Claimant had signed various forms before the ride and had failed to disclose his medical condition which involved a hand tremor. The Claimant had agreed that riding SMs was demanding and he would follow the guide’s instructions and would pay the first 1,000 euros of any crash damage. It was denied that the SM understeered or was unsuitable for novices save in ECO mode. The briefing lasted 5 minutes. The guide provided it in two parts, partly on a SM and then with the Claimant and KM on SMs. The Claimant was taught how to position and lean into turns; how to operate the brake and throttle; how to turn the handlebars; how to switch on and off; how to avoid using the throttle when braking. The guide demonstrated the emergency stop and the tether cord. The briefing was done again with the Claimant on a SM. Then hand signals were demonstrated and they were asked if they had any questions, they had none. As to ride 1, the Defendant asserted that the group went no more than 20 kph at first, then increased to 40 kph on straights and 15 kph on corners. They stopped after 1-2 km. They decided to split the group, KM was going slower. The guide put the Claimant’s SM into Standard power mode and he told the Claimant that it was more powerful, would increase acceleration, throttle response and top speed and he needed to be more careful. The Claimant agreed. They set off on ride 2. Visibility was not limited. The track was visible. Gradually they built up speed to 60 kph on “straight sections of the trail” and 10-20 kph on corners, with a reasonable distance between them. It was denied that the guide went out of sight. The last time the guide looked back was 20-30 seconds before the accident. They had taken 20-30 gentle corners and travelled 4 km, then the crash occurred. The guide stopped 20-25 metres away. The Claimant had gone off the track at a “slight left hand gentle downhill curve”. After the accident the Claimant told the guide his glove had become stuck to the throttle. The Claimant had sent a message offering to pay for the SM because it was, using his words: “my error and my responsibility” and caused by “my little self destructive snowmobile behavior.”. Negligence was denied. The cause of the crash was pleaded as the Claimant accidentally accelerating whilst negotiating turn 2 instead of braking. No flags or signs were needed. The Claimant had driven in standard mode for longer than ECO mode and that had been his “practice”. The guide was a reasonable distance in front, driving at a safe speed and the Claimant knew he had to slow down for corners. The Defendant pointed out that the “out of sight” guide allegation was not made in the PAP letter. Contributory negligence was asserted against the Claimant including: failing to follow instructions, driving too fast and accelerating accidentally on a corner and failing to declare his health condition. Volenti non fit injuria was asserted as was the Compensation Act 2006 and Reg 16(4) of the Regulations. Neither volenti nor the 2006 Act were pursued at trial.