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Case No: QBENF 1999/0454/1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
H.H. JUDGE GRAHAM JONES
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19th April 2000
B e f o r e :
LORD JUSTICE KENNEDY
LADY JUSTICE HALE
and
MR JUSTICE HARRISON
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REGINALD
SLACK
|
Appellant
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-
and -
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ANDREW
GUY GLENIE and others
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Respondents
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Iain Hughes QC & Julian Picton(instructed by Pinsent Curtis for the
appellant)
Derek Marshall (instructed by Michael Hayes & Co for the Ian
Barclay)
Michael Tillett QC & Neil Block (instructed by Clarkson Wright &
Jakes for Andrew Glenie)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
1. This is an appeal by the first defendant, Reginald Slack, against a
judgment of Judge Graham Jones, sitting as an additional judge of the High
Court. The judge found in favour of the claimant against both the first and
second defendants for damages to be assessed, subject to a deduction of
50% in respect of contributory negligence. He also ordered that as between
the defendants liability for the claimant's damages and costs be apportioned
two thirds to the first defendant and one third to the second defendant. It is
the first defendant's case in this appeal that he should be exonerated,
alternatively that the claimant's contributory negligence be assessed at a
figure far greater than 50%. The claimant by his respondent's notice, seeks to
reduce his share of the responsibility below 50% and the second defendant
merely wishes to ensure that he is not adversely affected by any alteration
made in this court.
2. The Accident
The action arises out of a tragic accident which occurred at about 4.25 pm on
13th March 1993 at Matchams Leisure Park in Hampshire when the claimant was
riding a motor cycle and sidecar combination round a race track with Peter Lain
as his passenger. The motor cycle went out of control and hit the fence on the
inner side of the race track. Lain was killed and the claimant sustained very
severe injuries as a result of which he is a paraplegic.
3. The Track
The first defendant purchased the Leisure Park in 1985 and used it for a
variety of activities - stock car racing, motocross, solo motor cycle racing,
horse trotting and a Sunday market. Initially there was no motor cycle track,
but in 1988 the first defendant built the track round the outside of the
concrete barrier which surrounded the stock car circuit. As can been seen from
the plans the motor cycle track was of a conventional design, with two straight
sides and D ends. It was 500 metres long and was 12 to 15 metres wide, wider
than the three lanes of a motorway. Initially it had a sand base and its inner
fence was made from chestnut palings, but in response to representations from
riders the first defendant replaced the sand base with compacted chalk overlaid
with graded shale, which provided an excellent surface for the sport. He also
replaced the chestnut paling with a chain link fence supported by steel posts
concreted into the ground and covered to 1/3 of its height by wooden boarding.
The inner fence was considered to be necessary to prevent motor cyclists
running off the track into the concrete barrier surrounding the stock car
circuit, and the first defendant believed that the chain link fence was less
likely to endanger motor cyclists than its predecessor. After its installation
competitors did on occasions bounce off it back onto the track.
4. The Sport.
Racing with specially constructed motor cycle and sidecar combinations is a
recognised but inherently very dangerous sport. It takes place on grass
tracks, on speedway circuits smaller than the track at Matchams and on large
1000 metre tracks more commonly found on the European mainland. At
international level the sport is governed by the Federation Internationale
Motocycliste (FIM). In the United Kingdom the body with delegated authority is
the Autocycle Union (ACU), which operates from regional centres, and Matchams
falls within the area covered by ACU's Southern Centre. The centres have
committees specialising in different forms of motor cycle sport and accredited
stewards trained to consider race organisation, including the safety of riders
and spectators. In 1992 because of high insurance costs a group of landowners
and race promoters formed the Off Road Promoters Association (ORPA) aiming to
offer equivalent race regulation to that provided by the ACU but with cheaper
insurance, and in 1993 the first defendant was the ORPA chairman.
As Mr Iain Hughes QC, for the first defendant, explained the motor cycle and
sidecar combinations which are used to race are very powerful - about 1000cc -
their fuel is methanol and when competing on shale surfaces, as opposed to
grass, they have no brakes and no rear suspension. They are deliberately set
up to pull to the right and, at least for a large part of the time, they
progress by means of a controlled powered skid. The way in which the passenger
shifts his position is crucial to the stability and control of the vehicle, so
riders and passengers train and race together as a team.
5. Previous events at Matchams
Nineteen race meetings were held on the motor cycle race track at Matchams
prior to 13th March 1993 and there were practice sessions and training schools
so, as the judge accepted and as Mr Hughes emphasised to us, thousands of race
laps, perhaps 80,000, had been completed without serious injury. The first
defendant did not organise meetings himself. That was undertaken, at least on
many occasions, by the second defendant, who as chairman of Motor Sports
Promotions was the promoter and organiser of the events which took place on
13th March 1993.
6. The Claimant's Involvement
The claimant was born on 5th February 1969, so in March 1993 he was just 24
years of age, and he was working as a van salesman. He was a keen motorcyclist
who had ridden at Matchams once in 1992, and who hoped to be selected for a Rye
House team place in the competition which was to take place on the evening of
13th March 1993 because those who did well in that competition had a chance of
a place in a team which was to visit Australia. Unfortunately the claimant had
an argument with his regular passenger Lee Barwick on Thursday 11th march 1993,
and on the following day he invited Peter Lain to take Barwick's place. Lain
was an experienced sidecar passenger, but his experience was on grass, and the
claimant and he had never ridden together.
When the claimant and his team arrived at Matchams on Saturday 13th March 1993
in the afternoon he was directed to the pits. Normally he expected to have to
sign an entry form, sign on for insurance purposes, have his machine
scrutineered, and then carry out some practice laps before being allowed to
take part in a competition, but on this occasion it seems clear that, without
signing anything or having his machine scrutineered, the claimant was
encouraged onto the track to complete his practice laps - the entry to the race
track being under personal control of the second defendant. The claimant then
completed two laps and was beginning his third lap when his machine touched or
went very close to the outside fence. His turned round to look at his
passenger who was, perhaps belatedly, changing his position. The machine then
travelled diagonally across the track to strike the inner fence about 95 metres
away from the point at which it touched or shaved the outside fence.
7. Issues on Appeal
There are four main issues in this appeal, namely :
(1) whether the first defendant owed any duty of care to the claimant or
whether, as far as the first defendant was concerned, the claimant was a
trespasser on the track when the accident occurred.
(2) If the first defendant owed a duty of care, whether he was in breach of
that duty.
(3) Whether the claimant's voluntary acceptance of the risk of injury was such
as to extinguish the first defendant's liability.
(4) Contributory negligence.
I will deal with each of those issues separately.
8. Any Duty of Care?
It was and is the first defendant's case that the claimant was only entitled
to use the track if he first signed an entry form, signed on for insurance, and
had his machine scrutineered. There was a notice to the pit area which read
-
"All drivers mechanics must sign on and have their cars(sic) scrutineered
before entering raceway".
Quite apart from the notice the second defendant, as an experienced promoter,
knew what ORPA required, and this event was under the auspices of ORPA. It
was, the first defendant said, the responsibility of the promoter to see that
the formal requirements were met, and so far as he was aware that
responsibility was being discharged. So, Mr Hughes submits, the first
defendant authorised the second defendant to admit to the track only a rider
who had first completed and signed an entry form and signed on for insurance
purposes. Arguably the rules permitted scrutineering at a later stage but
prior to the actual race.
When he came to deal with this aspect of the case the judge considered
carefully what ORPA and others required, and in particular whether the
requirements relating to "competitors" embraced the claimant, who had yet to
earn his place in a team. He noted that on 13th March 1993, to the knowledge
of the first defendant, riders were being admitted by the second defendant free
of charge to the Training School. The judge took the view that on the basis of
that evidence alone any riders attending Matchams for the evening event and
authorised by the second defendant to ride on the track during the hours of the
Training School were lawful visitors vis-a-vis the first defendant. I see the
force of that argument, and of the judge's approach to questions of
construction, but to my mind it is the judge's alternative formulation which is
decisive. As he said the second defendant had ostensible authority from the
first defendant. On behalf of the first defendant it was argued before the
judge that the notice to the entrance to the pits was sufficient to limit the
second defendant's apparent authority. Like the judge I reject that argument.
It is only fair to say that Mr Hughes did not really develop it in this court.
The reality of the matter is that so far as the claimant was concerned the
second defendant was in charge, and he invited the claimant onto the track.
The first defendant had put the second defendant in that position without
effectively advising the claimant of any limitation on the second defendant's
authority. In those circumstances it seems to me to be quite impossible for
the first defendant to maintain the position that so far as he was concerned
the claimant was a trespasser.
9. Breach of Duty?
A.General
By the end of the case before the trial judge, it was accepted by counsel for
the claimant that in order to succeed against the first defendant he had to
show that the first defendant, as occupier of the racetrack, was in breach of
the common duty of care which he owed to visitors, that is to say a duty to
take "such care as in all the circumstances of the case is reasonable to see
that the visitor will be reasonably safe in using the premises for the purposes
for which he is invited or permitted by the occupier to be there" (Occupiers
Liability Act 1957, Section 2(2). The allegation of breach of duty was and is
a simple one, namely that having regard to the purposes for which this track
was to be used, it was inherently dangerous by reason of the absence of an
unobstructed central run-off area. That was something which, it was contended,
a prudent developer and operator would have discovered and reacted to long
before 13th March 1993.
B. Was the track unsafe?
The first question, therefore, is whether or not the track was in that respect
unsafe. As to that the judge heard a considerable body of evidence, and
concluded that at the material time, the track was inherently unsafe. As a
starting point I accept that, as Mr Hughes pointed out, the sport under
consideration is dangerous. Those who participate in it recognise that they
are taking risks - no doubt that is part of its appeal - risks which arise from
travelling at high speed on powerful machines with relatively little
protection, when even to stay on course requires a synchronisation of skills by
driver and passenger, and when there is always the possibility that some
misjudgement or the actions of another competitor will result in a collision,
or at least, loss of control. If that happens and the machine goes to the
outside of the track, it is likely that on any type of track it will encounter
a perimeter fence, so why should a fence on the inside of the track be regarded
as unacceptable? The answer to that question, as it seems to me, begins with
the recognition that a solid fence on the in-field close to the track is a
significant extra hazard, especially if it is accepted, as most of those who
gave evidence seemed to accept, that motor cycles and side cars are set up to
pull to the right. The question then arises as to whether, within the confines
of this dangerous sport, that extra hazard is properly to be regarded as
acceptable. To answer that question, Mr Michael Tillett Q.C. invited attention
to paragraph 074.6 of the FIM "Track Standards for Track Racing Courses", which
came into force on 1st January 1984. It reads -
"The in-field must be on the same plane as the track and approximately level
so that a driver may safely ride on it should be he forced off the track.
Obstacles, except portable advertising boards and structures which serve the
organisation of the meetings, are not permitted on the in-field. Portable
advertising boards must be either inflatable or constructed of light materials
such as plywood, polystyrene, thin metal or plastic sheets mounted on
lightweight frames, so that they collapse easily if struck, and shall not
exceed one metre in height. They shall be placed not less than 4 metres from
the inside edge of the track and be inclined towards the direction of
racing.
In exceptional circumstances, obstacles which cannot be removed may be
permitted provided they are not closer than 4 metres to the edge of the track
and are amply encased with straw bales, polystyrene, phenol formaldehyde or
similar crushable material to a minimum height of 2 metres from ground level" .
074.6.1 states how the inside edge of the track is to be marked. As the judge
pointed out, these provisions are obviously concerned with safety. They are
not said to be applicable only to particular events, and the introductory
section to the Track Standards states that they "must be met by motorcycle
tracks in order to obtain the approval of FIM", and that they "apply to all
newly constructed tracks and to any modifications that may be made to existing
tracks". They applied to speedway, long and grass tracks. As already
explained, Matchams was not a speedway or a grass track. It was a hybrid, a
mini-long track, but there was nothing about Matchams which could be said to
render the FIM requirements unnecessary in its case. Of course, as Mr Hughes
points out, FIM had no direct jurisdiction in the U.K. It was simply the
international governing body for the sport, but its express view that the risk
of an in-field collision should be minimised was, on the evidence, widely
accepted. As the Judge said, the ACU "Safety Precautions" have no provisions
corresponding expressly to the FIM provisions in relation to the in-field, but
on the evidence there was no speedway or grass track in the U.K. or in
Australia (where the sport was popular) which did not have a clear in-field
onto which machines which went out of control could run. Indeed there were
only two tracks anywhere in the world which were said to have inside fences
and, as the judge put it, the evidence in relation to those two tracks was
somewhat conflicting and certainly not clear. His impression was that racing
with 1000cc motor cycles and side cars did not take place at either track, and
in this appeal, no one sought to persuade us that the judge was wrong about
that. Brian Coombes, a defence witness who had been an ACU steward for 28
years, Secretary of the ACU Grass Track and Speedway Committee for seven years
and Chairman of the ACU Southern Committee for three years, was asked by Mr
Tillett if he understood that the ACU Regulations for grass-track "effectively
made it obligatory to have a clear in-field, or a virtually clear in-field
apart from ambulances". He replied "Yes, if it is a grass track. If it is a
mini long track, No." He agreed that for a speedway again a clear in-field
would be required, but a mini long track "is an in between area". He offered
no explanation as to why a hazard should be accepted on a mini long track which
would not be acceptable on a grass track or speedway.
So in seeking to prove that the obstruction to the in-field was an
unacceptable hazard, the claimant was able to point to what came from the FIM,
to the attitude of the ACU, and to what was done elsewhere. In addition he was
able to rely on the evidence of two experts, Mr Pinfold and Mr Woodrow. In
1990 Mr Pinfold, who was a very experienced and successful rider, tried out the
track at Matchams with a view to bringing over a sidecar team from Australia to
race on the track. He decided that the track was "too dangerous as it had an
inner fence". The judge recognised that Mr Pinfold could be said to have an
interest in the proceedings. He was a friend of the claimant's family and the
claimant's sidecar was using one of his jigs, but nevertheless the judge, as he
was entitled to, found Mr Pinfold an impressive witness and accepted his
evidence. Mr Woodrow was less impressive. He failed to make proper enquiries
before rendering his report, and was effectively cross examined about the TT
races in the Isle of Man, and about his own club's "Bonfire Burn Up", but by
reference to the FIM and ACU he was able to support his own conclusion as to
the lack of safety at Matchams in a way that the Judge found to be acceptable.
There was, therefore, in my judgment, a powerful body of evidence to support
the judge's conclusion that the obstruction to the in-field at Matchams was not
to be regarded as an acceptable hazard, even in this dangerous sport. There
was, of course, evidence to the opposite effect. The first defendant and the
second defendant both said that they considered the track to be safe, but, as
the judge pointed out, that is really an over-simplification because they both
knew, if they thought about it for a moment, that the inner fence was a
potential hazard. It was less of a hazard than the concrete which lay beyond
it, but it was a hazard none the less, and all that I believe the first
defendant to have been saying was that he believed it to be an acceptable
hazard. At all times, his experience of the sport was limited, so his view as
to the acceptability of the hazard could hardly carry much weight. The same
could not, however, be said of the second defendant, who had an extensive
experience of the sport as a participant and promoter, or of three other
witnesses, Measor, Maidment and Coffin, all of whom were experienced in grass
track racing or, in the case of Measor, in speedway racing, and all of whom
were satisfied that Matchams, with its inner fence, was acceptable. As Mr
Hughes points out, the second defendant, Measor and Maidment were not only
experienced, they also held office in the ACU, so their qualifications bear
favourable comparison with those of the claimant's experts, Pinfold and
Woodrow. But, as the judge pointed out, the bulk of Coffin's racing was on
solo motor cycles and he never raced at Matchams. He also accepted that
motorcycles and sidecars are set up with a bias to the right, and that in
practice there has to be a run-off area. Maidment too accepted that at all
other grass and speedway tracks there was and had to be a clear in-field.
Matchams, as he said, was unique and that may well provide part of the
explanation. The track there could only be provided around the existing stock
car track. It could not, therefore, have a clear in-field, so the question for
those involved in the governance of the sport was, or ought to have been,
whether or not to authorise and accept this excellent track with its
potentially dangerous inside fence. There was evidence from the second
defendant that the inside fence at Matchams was considered by the ACU's
Southern Centre Board, but there was no written authorisation of any kind, and
if it was formally approved, the second defendant could not remember being at
that meeting. Perhaps the truth of the matter was that the ACU was not
prepared to look a gift horse in the mouth. I have already referred to the
evidence of Coombes who was the first defendant's advisor when the track was
constructed, and his attitude to the obvious in-field hazard was to pass on
the responsibility to the riders. "They have got a choice, they either ride it
or they go home".
Having apparently decided to live with Matchams the ACU's Southern Centre
Board did issue permits for meetings that took place there, but, as the
evidence showed, the permit system was operated largely, if not entirely, to
avoid clashes between meetings and there was no further consideration of safety
before a permit was issued. When a meeting was held, the stewards had to
complete a pro-forma report, a section of which was concerned with safety. For
the meetings at Matchams, most of the stewards answered the question "Was the
fencing and the run-off adequate?" with a simple "Yes". One steward, Mr
Lessey, sensibly on a couple of occasions pointed out that there was no
run-off, but even he was prepared to indicate that no further precautions were
necessary. It is unnecessary for the purposes of this judgment to investigate
further the apparent inertia of the Southern Centre of the ACU in relation to
the situation which it knew to exist at Matchams. Suffice to say that the
inertia was rightly regarded by the judge as of no real weight when deciding
whether, with its obstructed in-field, that the track was acceptably safe.
But the first defendant also relied on the evidence of Mr Fairhurst, a
principal Environmental Health Officer employed by East Dorset District Council
who, at the invitation of the first defendant, visited Matchams on two
occasions in 1992 to discuss safety, and formed the view that there was nothing
wrong with the mini long tack. He was a member of a national group looking
into the safety of stock-car racing and that was the principle reason for his
visit. He had no particular experience of the sport with which this action is
concerned, and his contact with the ACU was after the relevant accident. In
those circumstances, the opinion of Mr Fairhirst was of no real weight when
considering whether or not the mini long track at Matchams was acceptably
safe.
Some weight could, however, be attached to the fact that despite the extensive
user prior to 13th March 1993, there had been no serious accident.
As Mr Hughes put it, on a couple of occasions the fence had worked as intended
in that riders had bounced off it back onto the track, but, viewed from another
angle, that was clear evidence, if any were needed, that riders did on
occasions go out of control in the direction of the in-field. As the judge
said, the riders who struck the fence prior to 13th March 1993 were
fortunate in the nature of their contact, and I would add in not being involved
in a further collision when they bounced back onto the track, but, as the judge
pointed out, it must have been obvious that if any rider hit the fence at speed
at anything other than a shallow angle, there was likely to be serious
injury.
I therefore conclude, as did the judge, that the inner fence at Matchams was a
hazard which was not properly to be regarded as acceptable for those
participating in motor cycle and side-car combination racing. The weight of
evidence was in favour of that conclusion. In the language of the statute it
was foreseeable that the visitor would not be reasonably safe in using the
premises for the purposes for which he was invited or permitted to be there.
C. Did the First Defendant act reasonably?
That conclusion as to the safety of the track is not decisive of liability so
far as the first defendant is concerned. His duty was only to take such care
as was reasonable to safeguard his visitors. In order to decide whether the
first defendant discharged that duty, it is necessary to go back to 1988 when
he decided to develop the track. Aware of his own lack of expertise he turned
for advice to Mr Coombes, a freelance journalist and an ACU official who worked
for the first defendant for a number of years prior to 1991. Coombes
particular experience lay in the field of Moto-Cross but, as I have already
noted, he knew that for grass-track or speedway tracks a clear in-field with a
level run-off was required. In cross-examination, he claimed to be familiar
with the FIM rules and regulations, but failed totally to explain why he did
not regard those regulations and his own experience of layouts elsewhere as
persuasive when deciding whether or not if a mini long track were to be
constructed at Matchams, where there was no possibility of a clear and level
in-field, it would reach acceptable standards of safety. As the judge found,
Coombes was plainly at fault in the advice which he gave to the first
defendant. He ought to have advised that the location was wholly unsuitable
for the construction of a motor cycle and side-car combination racetrack. The
judge found that when giving that advice, Coombes was in the employment of the
first defendant, and was acting in the course of that employment, so that the
first defendant was vicariously responsible for the breach of duty by an
employee to whom he had looked to assist him to discharge his obligations
under the Occupiers Liability Act. Belatedly, in his reply, Mr Hughes
submitted that Coombes was an independent contractor upon whose advice it was
reasonable for the first defendant to rely. I accept that, according to the
first defendant, he did look to Coombes for expert advice, but that is
irrelevant. It is common for a master to employ a servant who has more
experience than the master in a particular field, and to rely on advice from
that servant in relation to that field, but that does not relieve the master of
vicarious liability if he owes a duty to a third party to take reasonable steps
to obtain and act upon appropriate advice. If the servant is negligent the
master must take the blame, and at the relevant time Coombes was the first
defendant's servant. He was not, it seems, employed full time, but that he was
employed was, at it seems to me, clear beyond argument. In cross examination
Coombes was asked by Mr Tillett when he worked for the first defendant, from
when to when, and replied -
"Mr Slack agreed to start full-time racing at Matchams. I was asked if I
would come there and take charge of it for him as he had no experience of
racing. He consulted various people and they all reckoned I was the best man
to do the job, but I cannot remember exactly what year that was."
Coombes agreed that he began that work in the 1980's and when asked for how
long he continued, he said "seven years".
It seems that after the track had been constructed, Coombes decided to consult
someone whom he regarded as having greater knowledge of grass tracks, namely Mr
Rendall, an inspector for the ACU who had years ago been a member of its Grass
Track National Committee. Mr Rendall was not called as a witness. We were
told that was because of his advanced age, but in the court below no
explanation was given. Rendall involved a surveyor named Chris Woods, who took
some measurements and prepared a sketch plan, a copy of which was sent to the
ACU. The copy which we have seen shows various measurements, but it does not
indicate any obstruction of the in-field. Rendall did, it seems, recommend an
inner run-off area marked by small flags, and that was tried, but because of
the fencing, the run-off area was only two feet wide and the flags were knocked
out as soon as practice began, so the idea was abandoned. In
cross-examination, the first defendant said that when the track was designed
and built, he thought that someone from an organisation would come to look at
it and say whether or not it was safe to race on it. That, he said, did
happen. Rendall was the person who said that it was safe and, said the first
defendant, "I had a copy of his report". He thought he had passed the report
to his solicitors, but at the trial no report was ever produced. Indeed the
only document which could be said to be in any way connected with initial
approval was Mr Woods' sketch plan. As the judge said, both Coombes and
Rendall knew or ought to have known that -
a) all grass and speedway tracks had clear or largely unobstructed
in-fields;
b) the (proposed) track at Matchams was a hybrid grass track/speedway track
intended for use by motor cycle and side-car combinations set up with a bias to
the right,travelling at high speeds on a shale surface, as well as for other
purposes;
c) the FIM track standards for grass tracks and speedway tracks were clear,
and there was no logical reason why those standards, which seemed to be
accepted by the ACU, should not be applied at Matchams.
The first defendant knew that Coombes consulted Rendall, who in turn involved
Woods. On behalf of the first defendant, it can be said that he was not
vicariously responsible for either Rendall or Woods, but, as I have said, he
was responsible for Coombes and thus, as against the first defendant, the
claimant was able to establish a breach of the common duty of care.
But in relation to this aspect of the case the claimant did not rely only on
vicarious liability. He was also able to rely on the warnings which Pinfold
said he gave to the first defendant in 1990 and 1991. According to Pinfold he
told the first defendant -
"It was too dangerous to have sidecars there. Sidecars need a run off area.
They are always going into the in-field at just about most meetings. Somebody
during the day or the evening meeting always goes in-field."
In 1991 Pinfold said that he had another conversation with the first defendant
and said "you've still got the fence up". The first defendant explained that
because of what lay beyond the fence he could not take it down, and Pinfold did
not pursue the matter further. The conversations were brief, but they were
meaningful. Pinfold himself never raced at Matchams, and warned Australians
not to do so, but he did not warn the claimant or his brother. The first
defendant claimed that he had no recollection of meeting Pinfold, and that no
one had ever suggested to him that the track was dangerous, but the judge, as
he was entitled to, accepted the evidence of Pinfold. The judge thought it
possible that the first defendant, who we are told is deaf in one ear, thought
that Pinfold's comments related to the nature of the original fence. I find it
difficult to accept that charitable interpretation. If Pinfold on two
occasions said what he claims to have said, and the first defendant heard him,
the first defendant cannot have failed to recognise the true nature of
Pinfold's message.
Quite apart from the warnings he received from Pinfold the first defendant had
another means of knowing that the obstructed in-field at Matchams presented an
unacceptable hazard, namely the FIM Track Standards. It seems that initially
he was not aware of them, but in 1991 when he decided to replace the original
inner fence he was provided with an extract from those Track Standards relating
to the construction of an outer fence, and constructed his new inner fence to
those standards. In relation to this aspect of the matter the judge said -
"A track owner exercising reasonable care would have looked at those standards
generally when provided with an extract from them. In the light of the obvious
danger from the in-field structures and the perceived risks from the chestnut
paling fence, at least he would have been put upon enquiry whether the Track
Standards of the International body provided some guidance and, had he looked,
he would have found that guidance clearly set out."
I agree, and in my judgment that constitutes a clear example of the first
defendant personally failing to discharge the common duty of care.
The first defendant claims to have been reassured by what he understood to be
ACU approval as evidenced not only by what he was told, but also by the issue
of permits and the stewards' reports. But for the reasons I have already
explained that approval was insubstantial, and the same can be said of the
approval expressed by Mr Fairhurst when he visited in 1992. He did not have
the necessary expertise to express an opinion which would sever the link
between the earlier and continuing breaches of duty and the claimant's tragic
accident.
It was part of Mr Hughes' submission to us that at the hearing no one
identified any person whom the first defendant should have consulted. No doubt
that is right, but the claimant did not have to identify any such person. He
merely had to show that the first defendant himself and/or those in his
employment whom he did consult failed to exercise such care as was in all the
circumstances of the case reasonable to see that he, the claimant, would be
reasonably safe in using the mini-long track for the purposes for which he was
permitted to be there. In that the judge found that the claimant was
successful, and in my judgment, for the reasons which I have given, which are
substantially although not exactly the same as those given by the judge, I am
satisfied that the judge was right to come to that conclusion.
10. Voluntary Assumption of Risk
Section 2(5) of the 1957 Act expressly provides that -
"The common duty of care does not impose on an occupier any obligation to a
visitor in respect of risks willingly accepted as his by the visitor (the
question whether a risk was so accepted to be decided on the same principles as
in other cases in which one person owes a duty of care to another)."
Clearly, as the judge said, the claimant freely and voluntarily rode on the
track, and did so knowing that the inner fence was there, but what he did not
know, and could not reasonably be expected to know, was that the lack of a
clear in-field run off constituted a hazard which would normally be regarded as
unacceptable. It would not be acceptable on a grass track, or a speedway
circuit, or on any long track where FIM Track Standards applied. As the judge
put it -
"The evidence does not establish that Mr Glenie actually had a full
appreciation of the nature and extent of the risk presented by this particular
fence ...... No one had pointed out the danger to Mr Glenie. To him, the race
track was well-known within the sport, a facility provided commercially. It
was in regular use by recognised and apparently reputable organisations. Mr
Barclay was a well-known and very experienced promoter. All the circumstances
were such as to encourage a person like Mr Glenie to use the track and to
diminish critical appraisal on his part of its safety."
In Simms v Leigh Rugby Football Club Ltd [1969] 2 All E R 923 the
plaintiff claimed that his leg was broken when it came into contact with a
concrete wall which was 7 feet 3 inches from the touch line, three inches more
than the minimum permitted by the by-laws of the Rugby Football League.
Wrangham J was not satisfied that the injury was caused by contact with the
wall, but he went on to say at 927 I -
"It seems to me a footballer does not merely accept the risks imposed by
contact with the footballers on the other side. He willingly accepts all the
risks of playing a game on such a playing field as complies with the by-laws
laid down by the governing body of the game. I am sure footballers who go to
the Leigh ground, go to that ground willingly accepting the risks that arise
from playing the game under the rules of the League, on a ground approved by
the League."
The mischief in the present case was that unlike the Leigh ground the track at
Matchams did not comply with the safety standards laid down by the governing
body of the sport, and the claimant did not know that. The present case is
therefore in some respects more like White v Blackmore [1972] 2 QB 651,
which Mr Tillett invited us to consider. There the deceased was watching
jalopy car racing when, as a result of a car becoming entangled in a safety
rope, he was catapulted into the air. At 663 D Lord Denning MR said -
"Mr White was quite unaware that the organisers had been negligent. He never
willingly accepted the risk of injury due to this default. They cannot rely on
volenti non fit injuria."
The judge in the present case went on to say that even if the claimant had
knowledge of the risk that would not have been sufficient to establish the
defence. Consent to bear the consequences of the risk must also be
established. In principle I agree, but I do not see how on the facts of this
case the two can be separated. However, as I agree with the judge that the
claimant did not have the knowledge which he needed to have before he could be
said to have assumed the risk my reservations in relation to the issue of his
consent are not material.
11. Contributory Negligence.
I turn finally to contributory negligence. As the judge said, the claimant's
decision to ride with a passenger with whom he had never ridden before was
"culpable to a high degree and plainly causative". It may also serve to
explain the severity of the impact with the inner fence as compared with the
previous incidents when no one was injured. The claimant knew that he would be
riding on a fast track with no brakes in circumstances where the stability and
control of his machine depended to a substantial extent on the skill of a
passenger with whom he had never ridden before, whose experience related to a
different type of track, and with whom he had no established means of
communication.
In addition the judge accepted, as he was entitled to, that when the troubles
began the claimant could, if exercising reasonable skill and care, have done
more than he did to avoid a collision or lessen its impact, by pulling on the
lanyard and thus disconnecting the power. Mr Tillet submits that, as the
claimant pointed out, pulling on the lanyard might have reduced whatever chance
he had of recovering control, but there must have come a point when he would
have been wise to abandon all thoughts of recovering control, and even though
the time scale was short it seems to me that the judge was entitled to find the
claimant to have been at fault in both of the ways which he identified.
On the other hand there was the absence of the clear in-field, which was a
major cause of this disaster, and certainly of the claimant's serious injuries.
The judge concluded that there should be an equal apportionment of liability as
between the claimant and the defendants. Despite the submissions made by Mr
Hughes and Mr Tillett I see no reason to interfere with apportionment.
12. Conclusion.
I would therefore dismiss this appeal and dismiss also the cross-appeal set
out in the respondent's notice.
LADY JUSTICE HALE: I agree.
MR JUSTICE HARRISON: I also agree.
Order: Appeal dismissed; Cross appeal set out in respondent's notice
dismissed; costs of the first Respondent to be paid by the Appellant; the
matter to go for detailed assessment; costs of the second Respondent to be paid
by the Appellant; Legal Aid taxation; application for permission to appeal to
House of Lords refused.
(Order does not form part of the approved judgment)
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