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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Slack v Glenie & Ors [2000] EWCA Civ 145 (19 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/145.html
Cite as: [2000] EWCA Civ 145
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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
LORD JUSTICE KENNEDY
LADY JUSTICE HALE
and
MR JUSTICE HARRISON
REGINALD SLACK |
Appellant | |
- and - |
||
ANDREW GUY GLENIE and others |
Respondents |
(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 does not form part of the approved judgment)