[2025] EWHC 1844 (KB)

Jukka Lainkari was the operations co-ordinator of LA. He had run SM safaris for a long time. He had experience in SM safari safety from his previous job. He oversaw safety training and policies at LA from 2019. He used to share the responsibility with Henry Valle but the latter had been promoted. He was the Snowmobiling Guide Association of Finland (SGAF) rep for LA and was a founding member and that association which is focussed on safety. He is passionate about promoting safety. He wrote the training guide. He did the training. He described the training. SML provided it with him. It was not mandatory in Finland. He set out what he described as the bare minimum for a customer briefing in his witness statement at para. 30. This included the throttle and how to operate it and the brake lever, safe separation distances (15 metres – 30 metres) and other matters. However, he went on to assert in paras. 31-32 that he trained LA guides to go further and provide a full demonstration of function sitting on the SM which is then repeated with the customer sitting on the SM. It includes how to stop by taking the right hand off the throttle and applying the brakes. All LA guides were required to start customers in ECO mode, which limited the top speed to 40 kph and limited acceleration and throttle response. Most customers remained in ECO mode. Standard mode removes the speed limiter and increases the acceleration and throttle response. LA left the decision on mode to the guide in conjunction with the customer. The guide would be best placed to judge the customer’s abilities. He gave his opinion on how the Claimant’s accident occurred which I do not take into account because he was not there and is not an expert in this case. However, he tagged onto that opinion these words:

“13.

… In Finland, snowmobiling accidents have occurred when people are turning left on a trail, they use their right hand to push the handlebar to the left to make the turn and in doing so press the throttle, which accelerates them off the track instead of through the corner.

14.

All customers are informed of this potential driving mistake and they are told how to avoid it. In almost all cases of snowmobiling accidents, it is the driver’s mistake.”

I shall call this the left hand turn risk (LHT risk). He did not state in his witness statement that as part of the bare minimum briefing or as part of the additional briefing requirements for LA guides, the LHT risk had to be communicated. He did explain that an explanation of LHT handlebar and throttle operation was required. However, at that time no allegation had been made in the Particulars of Claim or pre-action protocol letter relating to the accident having been caused by accidental acceleration. I shall return to this when cross examination is summarised below. He went on to summarise the January 2021 accident at which he was present. He stressed that all guides are instructed to advise customers not to touch the throttle when making turns especially left hand turns and asserted that this later accident occurred because the customer ignored that warning, but he could not be certain. Once again it would appear that LA’s post-accident reporting did not involve taking any detailed witness statements. He did not mention the Learning Key of the Xtrim SM in his witness statement.

This witness gave evidence via video link. He stated that he drafted the Powerpoint slides. In cross examination, he accepted he was fluent in English but also required an interpreter. On the LHT operation he stated he would expect guides to brief customers on this. He would expect guides to be visible to a single customer being guided and to comply with their training. If a guide failed to explain the tether cord that would be wrong practice. He admitted that the warning on the LHT risk was not in the LA SSOB. On the Lynx 900 he stated most customers stay in ECO but moving up to Standard mode is not prohibited. For more experienced customers this was an option. He would not advise changing mode after 1 minute of riding. It would not be the time duration of riding which would determine the change of mode but instead how the customer behaves on the SM. When asked about change of mode instructions since the accident he admitted that now the Learning Key is used and the mode cannot be changed from ECO. But experienced customers can be given the advanced key for more power and acceleration. This decision was not as a result of the Claimant’s accident but instead was an industry wide safety change.

I found that Mr Lainkari was a straightforward witness who gave honest and unmanipulated answers to the questions put to him. He admitted matters which factually did not assist LA’s case openly in his evidence. I accept his evidence. However, he did not give witness statement evidence about LA’s policy on the Learning Key and this was never bottomed out in evidence.

Henry Valle was the marketing manager of LA and is now the COO of LA. His degree included risk assessment qualifications. The first part of his witness statement is a glowing summary of LA and the quality of its business operation and awards. Some of the rest is mere hearsay which I place little weight upon. He consolidated the safety documentation aimed at minimising the risks. LA had never had an accident like the Claimant’s accident before. In his experience the most common accident on SM safaris were caused by accidental throttle use when turning left. He asserted that had caused the accident in January 2021. Guides were required to use the SSOB to brief customers. Guides were thoroughly trained at the start of each season, during a two day course. In his opinion a safe separation distance when on safari would be 20-30 metres. He stated that Standard mode and sport modes had higher acceleration (throttle response) and top speed than ECO. Having reviewed matters after the accident he had not suggested any safety changes. It is noteworthy that at no part of the witness statement when describing training did Mr Valle describe the LHT risk, but at that time no allegation had been made in the Particulars of Claim or pre-action protocol letter relating to the accident having been caused by accidental acceleration.

In cross-examination he agreed that if AP had failed to follow the requirements of the SSOB briefing guidance that would be wrong and likewise if AP failed to follow the training guidance in the Powerpoint set out above. He then admitted that no guidance was provided on which mode to choose on the SMs in the written documents and he could not recall if training guidance was provided. He said that was a matter for the guide to decide. When pressed on why the SSOB made no mention of the risk of accidentally hitting the throttle on left hand turns, a matter clearly explained in the training in the Powerpoint slides, he was evasive and then a little arrogant. He did not know why there was nothing in the SSOB but stated that if everything was put in it would be too long. (This part of the slide contained 4 lines of text). It was put to him that this was the number 1 risk and it was not mentioned. He said that he “did not fully agree”. Customers might forget things if the briefing was made too long and in any event guides were trained about this risk. He restated that guides should look back especially “on the corners”. He could not explain, despite the allegations in the claim, whether LA had reviewed their safety documentation and included training and guidance on the choice of SM modes for beginners. He also stated that a post-accident investigation was not required by local law. He said it was a “difficult question” whether it was right to carry out no post-accident investigation involving, for instance, scale plans, mechanical examination of the damaged SM and marking of tracks in the snow.

I found Mr Valle to be a rather self-satisfied witness who did not adequately address the issues in this claim about the causes of the accident with any great enthusiasm. Instead, he was keen to market the excellence of LA and their safety processes. This approach rather undermined the credibility of his evidence when faced with the gaps in his own safety documentation concerning the number 1 risk on SM safaris and choice of SM power mode.

Elliot Weir was the head of brand experience for McLaren. He arranged these events. 95% of guests are customers who had bought cars. The experiences were designed to be exceptional. He praised LA for their quality and knowledge. Initially, they did night safaris to see the Northern Lights but it was too cold. Then he introduced short, guided SM tours, close to the car track. The track was designed and then flattened and maintained. His evidence related to what occurred after the accident. When he got to the car park, the ambulance was there. The Claimant was taken away and KM came to his hut. They spoke. KM told him that the Claimant got into accidents regularly and was an adrenaline junkie. He arranged for KM to be taken to the hospital. He was surprised when the Claimant returned the next day having self-discharged against medical advice. In the Claimant’s texts during his travel home sent to McLaren staff the Claimant accepted full responsibility for the crash. He spoke to Jouni Satta who told him the Claimant had gone too fast and lost control so he wrote that on his incident report.

In cross examination, Mr Weir said the information for his incident report came from AP as well. He submitted his report to his superiors and nothing came back. Covid had intervened and his superior had left the company. He recalled the conversation with KM and was quite clear that she had said the words set out. He said many of his guests were adrenaline junkies. He trusted AP.

Mr Weir was clearly doing his best to assist the Court. I accept his evidence. I prefer his recollection of the conversation with KM to her recollection.

Jouni Satta was co-guiding with AP during the incident. He wrote no witness statement at the time. His was dated 3.7.2023. He had worked for LA for a year and had worked for other SM safari providers before that. He had ridden SMs since the age of 15. He regarded the LA training and standards as higher than other suppliers. Jukka Lainkari had set up the Snowmobile Guide Association in 2019 to focus on safety. LA had a licence from the association. Mr Satta described the training provided by LA and how he was trained to provide a full briefing to customers covering, inter alia, the emergency stop button, tether cord, positioning on the SM, leaning in, the brake on the left, the throttle on the right, how to turn, driving on the right, hand signals and safe separation distances. Such distances are to be shorter in woods and longer on straights and vary between 5 and 20 metres. The training included pupil guides rehearsing the briefings. The training recommended a stop after 1 km to check customers’ progress. It is noteworthy that at no part of the witness statement when describing training did Mr Satta describe the LHT risk, but no allegation had been made in the Particulars of Claim or the Claimant’s pre-action protocol letter relating to the accident having been caused by accidental acceleration. Mr Satta went on to state that if a customer on a safari wants to go faster they can so long as they are driving safely and following instructions. The capabilities of riders are assessed after 0.5 to 1 km of riding and the first stop then occurs. They are asked how they feel at that time. There was no official safe distance guidance but in a wooded area 6-10 metres and on more open straights, 15-20 metres. He described how all guides provided briefings. As to the accident, Mr Satta stated that he recalled going to the hut and giving the Claimant and KM their clothing and gloves and getting the Claimant to sign the forms, then going over to the SMs outside. AP was lead guide that day and gave the briefing. Mr Satta would cover anything left out. They covered the same matters each time. They did 1-3 safaris per day. He set out the absolute bare minimum at para. 39. This included the throttle and how to operate it, driving position, the brake and how and when to use it, safe separation distances, the tether cord, the course and route and driving on the right of tracks if they were public tracks. They also covered the additional information (including para. 48), which LA required and explained best practices when driving, leaning in, how to drive safely. The briefing is never rushed. The briefing is repeated but concise. They cut out irrelevant briefing matters like crossing roads or complex hand signals. AP showed the Claimant how to sit on the SM and the handlebar use, how to accelerate and proper throttle hand positioning. AP informed the Claimant that coming off the throttle was the way to slow down and the throttle should never be used at the same time as the brake. The brake is rarely needed. AP also described how to slow down at corners and to take corners and about steering correctly and leaning in. He stated that all SMs had a tendency to understeer. He described the Lynx Xtrim as very good for beginners. He had done hundreds of safaris with them. He warned that all users could become overconfident and had to follow instructions. The Claimant was eager to get going and rode confidently in ride 1 and close to the rear of AP. KM was not confident and was slower. They stopped after 600-700 m and KM was 30 m behind the Claimant. He described the track as delineated by the etching out, with several corners and straights, some in forest and some in the open. He does not recall the weather snowing and he considers the conditions were good. He said guides would always ensure to maintain visual contact with customers which meant not going too far ahead, thereby allowing customers to gauge where corners are. AP’s job was to lead and keep an eye on the Claimant by “looking back … every few seconds and during corners”. Mr Satta did not hear the conversation between AP and the Claimant at the stop. He did discuss the Claimant’s capabilities with AP and they decided he could go faster but KM could not. They would split into two groups. After 10-15 minutes he received AP’s radio call about the crash. To save KM from a potentially nasty sight he told her to stay put and went forwards to the incident scene. He arrived and saw AP’s SM 15-25 m in front. The Claimant was conscious but not completely aware. Soon the medic arrived and took over. They drove the Claimant back on a SM sat between them. Mr Satta gives no evidence about the state of the SM or the tether cord or the track made by the Claimant and made no effort to examine or preserve those tracks. He added at the end that the most common SM accident cause was turning left and accidentally accelerating.

In live evidence in chief Mr Satta stated that AP had told the Claimant to pull with his left arm when turning left and not to push with his right hand. (So this was instruction on the mechanics or operation of a safe LHT. But this does not inform the customer about LHT risks). In cross examination, about the tether cord, he stated that the jackets had a loop to which the tether should be attached although it could also be attached to the Claimant’s wrist. He accepted that guides were not trained to change the mode at the first stop but it is not prohibited. He would not just ride off after a corner he would wait for customers with a separation distance of 6-10 metres in wooded areas at corners. On the briefing he accepted that the SSOB did not mention the LHT risk and his witness statement did not mention any briefing on the LHT risk in the two relevant paragraphs (I take into account that this was not a pleaded allegation in the Particulars of Claim). Mr Satta stated that it was “always explained” and AP did explain how to turn left hand corners and what to do operationally. He asserted that he did recall the briefing because of the accident, despite writing no note soon afterwards. He restated that separation awareness was important and looking back was important to ensure the customer was managing safely. At the first stop the Claimant wanted to go faster. If he had been guiding he would have looked back in straight 1 and on straight 2. If the Claimant had been 30-50 metres behind he would have slowed down at turn 1 and watched the Claimant slow down. As he came out of turn 1 he was asked: would he look again? and he said that was hypothetical. He was unclear in his evidence about what he said to Elliot Weir after the accident. In re-examination he stated that he had guided safaris on plenty of other tracks in Standard mode. In final questioning he stated that half the Lynxs used by Lapland Safaris were 900s, they had more customers in their safaris so there was less chance to use Standard mode. On those, some were beginners using Standard mode and others were more experienced.

I found Mr Satta’s evidence to have been delivered openly, truthfully, honestly and with no guile or side to it. That does not mean that his opinions on the standard of care on the main issues are determinative, but I generally accept his evidence.

Arto Pitkanen (AP) was the guide who led the Claimant round the track. His first account of the event it set out above in his Whatsapp message. His second was in his accident report form also set out above. His third will have formed the foundation of the factual assertion in the PAP letter of response set out above. His fourth was laid out (at least in part) in the defence. His fifth was in his witness statement (23.7.2023) provided long before the expert reports were exchanged. So, when he provided it the allegations he faced were those in the Particulars of Claim (inadequate briefing and inadequate guiding, but no allegation had been made that the accident was caused by accidental throttle use and no allegation was made that AP had failed to instruct on the LHT risks). In the witness statement AP stated he was 37 and lived locally. He had worked for LA since 2018 and he also had a full time job. He was a member of the SGAF. He set out what his briefings always contained: driving position, throttle use; brake use; safe distance of separation, tether cord use etc. He stated the law required a top speed of no more than 60kph. For straights separation of 20-30 m would be usual. He had been trained and he took pride in his job. He had been guiding for 17 years. No customer had had any accidents. He stated if customers wanted to go faster than ECO mode then Standard mode would be used if they were safe drivers. He would always tell the customer when changing mode. The change could occur after ride 1 during the first stop. At the end of the track he offered some customers sports mode because it is flat and open. Very few are changed to Standard mode. Only 3 had done so with him and they had to be sufficiently experienced. As to the debate on understeer his simple view was that the turning of a SM was different to that of a car. As to the briefing he always sat on the SM when giving it. He turns it on attaches the tether and gives the briefing then the customer sits on the SM and he explains again. For the Claimant they met in the hut and the Claimant explained he was a novice but had ridden jet-skis. On rider 1 the Claimant was confident and ready for Standard mode in AP’s opinion. AP suggested the group split before KM and Mr Satta arrived at the stop. He said he would change the mode to Standard and did so. He accepted that mode was more powerful and had greater acceleration and the Claimant said he wanted that. AP informed the Claimant to be more careful and the Claimant said that he understood. They set off and went faster on the straights reaching 60 kph on longer ones and dropping to 10-20 kph on corners. After 10-20 corners and 2.4 km of riding including about 20 corners on ride 2, the crash happened. AP had looked back 10-20 seconds earlier (the pleaded case was 20-30 seconds) and seen the Claimant driving well. When he stopped the Claimant was 20-25 m behind him at the tree (AP had put 20m on his accident report). He ran back. The Claimant was face down in the snow the engine was not running so AP considered that the tether had done its job. He dug the Claimant’s head out of the snow and turned him over. He made a radio call. The Claimant awoke before Mr Satta arrived. He was confused and disorientated. He asked what he was doing and where he was. AP explained the crash. Soon the Claimant asked that his helmet come off. AP refused but the Claimant did so anyway. AP checked him over and the Claimant sat up. He complained of RIGHT leg pain (an error in the witness statement). There was no complaint of loss of feeling. The medic arrived and checked the Claimant over. By then the Claimant was speaking normally. He was transported back on a SM and in the car park at the ambulance AP asked the Claimant what had happened. The Claimant said his glove became stuck in the throttle midway through the turn and he accidentally accelerated. AP stated that gloves becoming stuck was not a common problem. Accidentally pushing the throttle on a left turn was a common problem. He restated that he had instructed the Claimant during the briefing to take his hand off the throttle when braking and cornering. He returned to the scene to retrieve the SM some hours later and they took some photos. He set out his Whatsapp message describing the accident sent the next day (it is set out above). He asserted that he had done nothing wrong.

In his evidence in chief, given live he reiterated that he had told the Claimant that when turning left to pull the left hand bar but not to push the right hand bar. He admitted that he did not see the Claimant between making turn 1 and the crash. He last saw the Claimant on straight 1 some 20-30 metres behind. He was driving confidently. He explained the Claimant’s position after the crash was lying in front of the SM, which had crashed into the tree, to the right of the tree where the marks in the snow are shown on photos. In cross-examination, he accepted that inexperienced customers posed the highest safety risk which was only ameliorated by thorough briefing and practice. He maintained that he explained the risks of left hand turns to the Claimant. As to not saying how long the ride would take he explained it was only 15-30 minutes for 1 lap with stops. He accepted that explaining the emergency stop is essential but was not listed in his witness statement as para. 22. He accepted that his essentials list did not state describing the track but that the track was simple. He accepted the joint Finnish experts’ statement that looking back was required to check and the group should never be out of sight. He accepted that it was essential to cover the tether cord in the briefing and to fix it on. He could not say to where it was attached, the jacket or the wrist. He could not recall if he had taken it off the Claimant’s jacket after the crash. He stated that he did both. As to separation he stated that on faster straights it was 20-30 m and 10-20 m on corners. On the change of mode he accepted that most customers stayed in ECO mode but the Claimant wanted more speed and said yes to AP’s suggestion. He explained this because the Claimant had experience with motor vehicles and jet skis and those had the same basic principles. Some jet skis have the same throttles. He stated that he did not say “lets have some fun”. He asked if the Claimant wanted to go faster and he did. Under pressured cross examination he stuck to his evidence about the briefing, the first stop and what he told the Claimant and that he checked the Claimant’s tether. He did accept that he had changed his evidence about the time between looking back and the crash from 20-30 seconds (in the Defence) to 10-20 seconds (in his witness statement). He repeated that the Claimant was 20-30 m behind him before turn 1 and the Claimant knew to slow down for the turn. The Claimant was not that far away, the forest was not thick, and so AP asserted that he did not need to look back again until after the two left turns. He showed the Claimant turn 1. Counsel returned to the same ground several times but AP did not change his answers. In relation to his Whatsapp record the day after he accepted that he had overestimated the length of ride 1 by a factor of 3. He accepted that he may have said “sporty mode” at stop 1. He stated that after Mr Wright’s report he had learned that the difference between ECO and Standard modes was perhaps not as much as he thought it would have been. He stated that he looked back before he braked at turn 1. He then travelled 100-150 metres until the crash or maybe 200 metres. He did not accept that he had altered his estimate of the post accident position of his SM for any sinister reason. Counsel then put a case to AP based on the assertion that the Claimant panicked as he went round turn 2 and he was going too fast at that time. AP did not accept that he ever suggested that the Claimant was going too fast. He did not accept that he was so far ahead that the Claimant could not see him as the Claimant rode out of turn 1. In re-examination AP explained that he did not look back on straight 2 because he had to navigate the turn and the Claimant was driving really well and confidently.

I am going to resolve the factual evidence issues once I have taken into account the expert evidence.