England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		15th July 2011

JUDGE OLIVER-JONES QC:

1. On 19^th June 2008 the claimant sustained a very severe head injury when he fell from a bicycle whilst competing in a race between four cyclists on a track at Fowlmead Country Park in Betteshanger, near Deal in Kent. The fall was precipitated by a collision between the bicycle being ridden by the claimant and another being ridden by one of his work colleagues, Alistair Cracknell. The race was one of three activities in which the defendant's Canterbury office staff (of whom the claimant was one) were participating at the end of an afternoon, which had begun with what has been described as "A journey of discovery around East Kent". The whole afternoon had been variously described as "A team bonding event", "A team building day", "A thank you to the staff", "An office outing", "An event for our staff", "A staff day out", and "A staff event". The event (as I will refer to it) was organised by two of the Canterbury office partners, Simon Backhouse and Edward Church. One of the issues in the case is whether staff and, in particular, of course, the claimant were at work during the event, particularly, but not necessarily exclusively, for the purposes of health and safety regulations. Section 52 of the Health and Safety at Work Act 1974, which governs the application of various regulations made thereunder, provides that an employee is at work throughout the time when he is in the course of his employment, but not otherwise. Apart from this discrete issue and another related to how a particular regulation, namely regulation 3(2)(e) of the Personal Protective Equipment at Work Regulations 1992, is to be construed, there are wider issues as to the duty and standard of care, if any, owed by an employer to employees in the context of events organised by the employer for employees outside the context of normal, daily work, extending to events where an employee's attendance and participation in activities may even be unarguably not in the course of their employment.
2. By a claim form issued on 14^th May 2010, the claimant alleged that his injuries and consequential losses were caused by the negligence and/or breach of statutory duty of the defendant, its servants or agents. In respect of each breach of statutory duty alleged, there is an alleged concurrent breach of duty at common law, founded upon the duty of care owed by an employer to his employee. In addition, it was pleaded that the collision was caused by the negligence of Alastair Cracknell in his management of the bicycle upon which he was riding. Notwithstanding that it was not admitted, if not expressly denied, that the defendant was vicariously liable for any negligence I were to find on the part of Mr Cracknell, he was not joined as a defendant to the claim and, in the event, nor has he given oral evidence. I have ignored the witness statements made by Mr Cracknell which are in the trial bundle served on behalf of the claimant and the defendant respectively. During closing submissions, Mr Ford QC made it clear that he no longer pursued the allegations of negligence against Mr Cracknell.
3. By its Defence, the defendant avers:

"That the afternoon was intended to afford entertainment and enjoyment to staff in a social atmosphere, and for no part of their work."

Consequently, and because of the terms of section 52 of the Health and Safety at Work Act (to which I have already referred), it is denied that the various health and safety regulations relied upon by the claimant had any application. Paragraph 14 of the defence also puts causation in issue, although, without any specific averment as to the basis therefore. Finally, it is alleged that the claimant was himself negligent in failing to wear an available bicycle safety helmet and in his management of his bicycle, and that his injuries were caused thereby. On 18^th November 2010 Master Kay QC ordered a split trial. He ordered the trial of the issues of "liability and causation" (sic) first. This judgment is solely concerned with those issues.

Background

4. The defendant is a well-known national property consultancy and estate agency. It has some 47 offices in the UK and employees about 750 people. At the time of the accident, before the current national economic difficulties affected the residential, development and housing markets and the demand for land management, there were about 1,000 employees. Mr Ralph Craythorne, one of the defendant's equity partners, leads 8 of the defendant's offices in Kent, Surrey and Sussex. One of those offices is at Canterbury, and the event with which this claim is concerned involved only employees at that office.
5. The claimant was first employed by the defendant in May 2003 in planning and development. He was promoted to an associate a month before the accident. He is now aged 49 years. I have already referred to the fact that Mr Backhouse and Mr Church, the organisers of the event, were partners in the defendant's limited liability partnership. They, and other witnesses who gave oral evidence, namely Mr James Briggs and Mr Nigel Porter, as well as Mr Ralph Craythorne, were all based at the Canterbury office. Mr Briggs is a surveyor, Mr Porter is a partner and a chartered surveyor, and Mr Craythorne the most senior of a total of five partners and in charge of the land management team. Mr Briggs and Mr Porter competed in the same bicycle race as the claimant and Mr Cracknell.
6. It appears there were a total of 35 staff, or thereabouts, at the Canterbury office, including the five partners, of whom 30 participated in the event. The remaining five members of staff included Mr Craythorne, Mr Backhouse and Mr Church. Mr Craythorne did not attend the event because he was preparing a barbeque at his home, which was to be the final part of the event. He told me that two members of staff did not attend the event, as did Mr Backhouse. They were identified as Emma, the claimant's secretary, and another lady called Michelle. It is unclear why they did not participate in the event or what they did instead. Mr Craythorne told me that Michelle worked and that Emma took the day off, even though the event only occupied half a working day, starting at 1 p.m. in the afternoon. Mr Backhouse's evidence was that "They both remained in the office to cover the phone lines." The office was otherwise manned, Mr Craythorne thought, by what are called "viewing staff", being people who accompany potential customers on viewing of properties, and not, as I understand it, full-time employees.
7. The event was not the first of its kind, although, because of the troubled economy, it was modest compared to those which had been staged the year before in Cork in Ireland and, for graduate entry staff only, in Lanzarote. In earlier years there had been trips to Rome, Venice and the Eden Project in Devon. Mr Craythorne emphasised that the purpose of such events was "in recognition for the commitment and hard work of our staff throughout the year and to show our appreciation", the emphasis being on providing, as he put it, "fun and enjoyment". He expressly distinguished this type of event from those "Orientated around a team building/motivation exercise where the respective working teams are grouped together for an event undertaking a competitive and regimented exercise". Even here, however, Mr Craythorne told me that individual competitive activities with winners and losers are avoided in favour of promoting team achievement. Previous events had included physical activities such as horse riding and kite-surfing, for those who were interested and physically capable. Safety equipment was specifically provided and notified to employees for the horse riding (trekking) in the trip to Ireland, and two qualified kite-surfing instructors were specially retained and flown to Lanzarote, each of whom were licensed to teach four people at a time and gave "a full safety briefing" before employees engaged in the activity.

The organisation of the event prior to 19^th June 2008

8. It was Mr Craythorne's evidence that when it came to organising the event the degree of planning was commensurate with the type of event and location, overseas events requiring a greater degree of planning and organisation than a local event. To this observation he added the following comment: "In particular, the risk assessments were also commensurate with the physical requirements and challenges that the activities were likely to pose." It appears that at the first stage of organisation was a discussion between the partners in general terms. Mr Craythorne stated that, in deciding what type of outing and destination would be arranged, issues of costs, inclusiveness, benefit, religious beliefs and disabilities of members of staff were at the forefront of their minds, together with "the likelihood of injury and associated risks". Implementation was delegated to the two partners whom I have already identified. Apart from identifying on the internet the Fowlmead Country Park as a possible venue for part of the event, and attending with Mr Church a meeting with Mark Kilmurry, Fowlmead's manager, to discuss the possibility of hiring bikes for the office outing, Mr Backhouse's witness statement is curiously silent as to how the event was organised prior to the day of the event itself. It appears that Mr Church had more direct involvement, as it was he who personally communicated with Mr Kilmurry by telephone and emails. However, there was also a meeting within the defendant's offices (as Mr Church put it, "within our own offices"), at which he suggested that he and Simon Backhouse had discussions about "risks and our assessment of them on the day in question. We also discussed other issues, and safety on bikes was considered." In a substantial and detailed note made by Mr Church shortly after the claimant's accident, he also identified someone called Debbie, who had been involved in these discussions. This was Debbie Gaysford, who was described as "Mr Craythorne's PA" in Mr Church's witness statement. In fact, as was only made clear during oral evidence, Mrs Gaysford was also office manager and in charge of health and safety, for which post she had specific training. She was not a witness in the case. Mr Backhouse's post-accident note was as uninformative as to the organisation of the event as was his witness statement.
9. Before dealing with Mr Church's involvement in the organisation of the event, in respect of which he made contemporaneous notes as well as writing emails, I need to briefly explain what Fowlmead Country Park was (and, I assume, still is). A park brochure, including a site plan and photographs, including aerial photographs, produced inter alia by the witness Damien Much, together with his report describing the park, reveal it to be a 200-acre park regenerated from the shale spoil of the former Betteshanger Colliery. In the year 2000 the colliery site had been redeveloped by the South East England Development Agency into a country park, including a nature reserve and off-road centre for leisure pursuits such as cycling (leisure, road and mountain biking), running, orienteering, geocaching, archery, walking, bush craft and fossil collecting. The park includes a 2-mile long tar macadam-surface road and cycling track, upon part of which, namely a circuit of about one mile around the perimeter of Liddon Wood, the race in which the claimant sustained injury took place. The park appears to be owned or managed by a company called Intercrop Limited, although the only information about it or its activities is that contained in a staff handbook 2007, a document which is far from complete in the trial bundle, even though it appears the defendant obtained a bound copy of it shortly after the accident, in circumstances to which I will return. Intercrop Limited is in the business of farming niche crops. It is a relatively small enterprise, employing only 30 full time staff in the UK and 20 staff in a Spanish operation. Although both the section and appendix of the handbook dealing with health and safety have not been copied into the trial bundle, Intercrop employees are, unsurprisingly, expressly required to observe all company health and safety notices as a term of their employment.
10. It had been decided that the event would consist of three elements. Firstly, staff, having been divided, apparently randomly, into six teams of five people, each team was to engage in what might be described as a mystery treasure trail without treasure, involving clues to move from one interesting place to another by car in East Kent, and, on the way, accumulating photographs of designated beaches. At page 438 of the trial bundle is an example of the written instructions given to each team. The prizes therein referred to are all chocolate bars of one type or another. The trial for each team was, of course, different. However, all teams were expected to arrive at a final destination (in the event this was Fowlmead) by 4 p.m. It was decided that when the event began (as it ultimately did in the office boardroom, as I say, at 1 p.m, after a normal morning's work), none of the staff would have any idea where they would be going or what they were going to do. As part of the fun, the nature and content of the event was to be kept secret. The agreed evidence of Mrs Shah was:

"I do recall that we were told that the team bonding day [as she described it] in 2008 would not involve an overnight stay. But, other than that, no specifics of the day were given beforehand, apart from being told to wear casual clothes and comfy shoes".

11. Having identified Fowlmead Country Park as a potentially suitable rendezvous for staff at the end of the mystery treasure trail, Mr Church first contacted its operator, Mark Kilmurry, by telephone on or about 29^th May 2008, some three weeks before the event was scheduled to take place. Mr Church's note (page 418 of the trial bundle) lists the facilities that were discussed, including:

"Road race – 2 miles. Path, leisure cycling – 2 miles. Perimeter 2¾ miles. Mountain bikes – three trails and geocaching."

On 3^rd June, Mr Church and Mr Backhouse met Mr Kilmurry at the visitors centre at the park, where the idea of bike racing was raised by Mr Kilmurry, and they were driven round the bike track to look at it. This was followed up on 7^th June with an emailed proposal mailed to Mr Kilmurry by Mr Church for the arrangement of bike races, mountain bikes and foot exploring over a 2-hour period between 4 p.m. and 6 p.m on 19^th June. Cost and availability of facilities was requested and confirmed in an email dated 10^th June 2008. The cost was only £100 for exclusive use of the facilities that were being offered for two hours.

12. At some unspecified point in the arrangements, there was the meeting in the Canterbury office between Mr Church, Mr Backhouse and Mrs Gaysford to which I have already referred, and which was specifically concerned, it is said, with risks to staff. In his contemporaneous note, i.e. contemporaneous to the accident, a note to which I will be referring throughout this judgment (it is to be found at page 425 of the trial bundle) Mr Church puts this meeting on or after 10^th June, if this written account was intended to be chronological. Specific issues were discussed, including risk to a member of staff who was pregnant, safety on bikes, and the need to incorporate a safe behaviour requirement in the briefings and the written instructions to each participant. As a result of the discussions, mountain biking was dismissed for safety reasons, as were some of the items staff were being invited to photograph during the treasure hunt. The defendant relies upon this meeting as being a significant part of what was advanced as its risk assessment as a responsible and reasonable employer/organiser. I will deal with this contention in a discrete review of the evidence relating to risk assessment and management at the conclusion of this factual summary.
13. Apparently, after this meeting, there was further telephonic discussion between Mr Church and Mr Kilmurry, the main points of which were noted by Mr Church in his day book, including (significantly) that he had been told that cycle helmets were available and that "the Health and Safety Executive recommended their use". It is noted that in his witness statement Mr Church presented a significantly different version or interpretation of this conversation with Mr Kilmurry:

"My handwritten note confirms I had discussed helmets and I was told by Mark (he mentioned they were not compulsory) that there were health and safety recommendations about wearing a helmet".

There is nothing in the contemporaneous note, nor in his note made immediately after the accident, to suggest that Mr Church was told that helmets were not compulsory, and the inclusion of the suggestion that he was is inappropriately placed in parenthesis as if it were at some stage added as an afterthought. Equally, the contemporaneous note did not suggest that there were some unspecified recommendations (plural) by the HSE, but rather that the use of helmets was actually recommended. When giving oral evidence to the effect that he had been told that the wearing of helmets was not compulsory so far as Fowlmead was concerned, Mr Church was unable to explain why there was no note made of this at the time, particularly given that his very full note, made immediately after the accident and when he was aware of the consequences of it, i.e. the accident, formed the substance of his later witness statement and was clearly, in my judgment, intended to be relied upon in any later enquiry.

The day of the event

14. Staff worked normally at the office during the morning of 19^th June. They then assembled in the board room at 1 p.m. for a briefing. This was given by Simon Backhouse. In his witness statement he said:

"I recall briefing them, stating that we would be undertaking some physical exercise and that all precautions should be taken in these tasks."

In his oral evidence, he modified "all precautions" to "all reasonable precautions". If this is truly what he said, it was clearly of very little value, given that neither the nature of the physical exercise nor the precautions were identified. Mr Porter recalled the briefing in terms that "We were told to stay safe and not to break the law!" (I add an exclamation mark to that quotation.) Mr Briggs recalls being "told not to do anything silly". It was at this point that staff were split into six teams, designated teams A to F, given their respective team instruction sheets, and sent on their way to begin the treasure hunt. The instruction sheet contained the comment, clearly related to the treasure hunt: "The judges urge you to be imaginative, yet remind you to behave in a safe and sensible manner and not to take risks." Again, risks were not specifically identified.

15. The day was a hot one, and during the afternoon Mr Church arrived at various destinations to meet teams, give further clues, and provide refreshment. The refreshments included small bottles of Peroni beer, supplemented, it appears, by some public houses, and which, from photographic evidence, appears to have been consumed by a driver or drivers as well as passengers during the treasure hunt. (There are many photographs in bundle 2 of the trial bundle that demonstrated what I have just said, in particular, at pages 572, 573, 619, 661, 662, 647, 652, 680 and 700.) Altogether there are 332 photographs in the trial bundle volume 2, recording the required notable features of the treasure hunt according to the written briefing. Having completed the treasure hunt, teams arrived at Fowlmead, presumably in response to the final clues with which they had been provided on route. The written instructions, which had been handed out at the initial briefing, including a requirement for the nomination of three sub-teams of no more than two persons. Given that there were only five people in each team, this meant, in practice, two sub teams of two and a third sub team of the remaining person. The instructions informed staff that they would be "Undertaking an exercise at the end of the afternoon within one of three broad categories, namely active and energetic, harmonious and steady (requiring two people), and thoughtful and considered." When everyone had arrived there was a further briefing, on this occasion by Mr Church, as to the nature and content of which there is conflicting evidence. The claimant's evidence was that everyone went into one of the portacabin buildings, "where the atmosphere was rather boisterous and jovial, as a number of employees had consumed a fair bit of alcohol". He added that people were talking loudly and talking over each over during the briefing. It was only at this point that the claimant, who had chosen to be in the "active and energetic" sub team said that he learned that he would be cycling. He said in his witness statement:

"I cannot remember whether we were advised to wear a helmet, or even if helmets were mentioned. The partners then told us to go outside, where the park staff would give us a bike."

16. Mr Briggs (from whom both parties had taken witness statements but who was called in fact by the claimant) had made a reasonably contemporaneous note of events just four days after the accident, in which he made no specific reference to any formal briefing at all, simply stating:

"When we got to the Fowlmead Centre we found out it would be a team cycle race. Ed [Mr Church] then asked us if we were happy with our activities, and we were."

In his oral evidence-in-chief, he said that there had been no mention of helmets. In cross-examination, he said that he did not recall any advice about wearing helmets, even though he had listened to the briefing. He conceded that it was possible that the availability of helmets had been mentioned. Mr Porter recalled the briefing and said:

"Ed told us that helmets were available if we wanted to use them."

However, he added that, when he collected his bicycle "I did not see or was not offered a helmet." The claimant gave evidence to the same effect. Mr Backhouse stated that:

"Edward pointed out to the riders that there were helmets for use with the bikes. I recall him saying that participants should please wear a helmet."

The second of these two sentences does not appear in his contemporaneous note, and begs the question: why, if it was said, and intended, the instruction was not subsequently followed up or enforced, particularly given that only one, namely Mr Cracknell, out of the 12 riders in the bicycle racing was wearing a helmet? Mr Backhouse contradicted himself on this issue when giving oral evidence. He said:

"Mr Church gave the briefing at Fowlmead. He said that helmets were there and available. We left them with the choice. We were not responsible for handing them out."

When Mr Church made his detailed contemporaneous note, he did not suggest that he had required or even recommended the use of helmets. All he said at that time in this note was that helmets were available. In his witness statement for the first time he suggested that he had encouraged participants twice to use them. It was only when he gave oral evidence that he went as far as stating that he had actually recommended staff to use them, and that he had expressed that recommendation twice.

The claimant's accident

17. It was necessary for those involved in the cycle racing to make their way from the visitors centre via a concrete slope to the road circuit and thence to the nominal start line, the location of which is shown in photograph 9 at page 170 and on an aerial photograph (figure 3) at page 177 as being about 50 metres before what is described as "level" or the datum point for Mr Mutche's measurements. In making this journey, when the photographs were taken in February 2010, there was a sign – see photographs 3 and 5 on page 82 – upon which, in small capital letters, is the statement: "Cyclists – we strongly advise that you wear a cycle helmet." There is no evidence of the presence of such a notice in June 2008, and given that Fowlmead (as I will turn to in a moment) had not even formulated a final health and safety policy themselves at that time, I think it is highly unlikely that there was.
18. The race in which the claimant competed with Mr Cracknell, Mr Briggs and Mr Porter was the last of three preliminary heats, the winning teams from which would meet in a second round to produce a champion team. The objective of each of the first heat races was to produce the best team of two, not the best individual; thus, there being two teams of two in each heat. In practice, this meant that the losing team would be that in which one of its members came fourth. A winning team would be the one in which both of its members came either first, second or third. The claimant said: "At the start of the race we were tightly packed along the start line." Given that the track was typically 8 metres wide (that comes from Mr Mutche's measurements) and there were only four riders in each heat, such tight packing appears unnecessary. However, it was the evidence of Mr Porter that, as everyone arrived at the start line, the claimant had "Forced himself into a small gap between James [Cracknell] and myself." This had been preceded by an incident in which the claimant had ridden at right angles immediately in front of Cracknell, causing the latter to make an emergency stop and had, according to Mr Porter, caused him to remark to the claimant, "Hang on, don't take him out before the race." Mr Porter added: "It was clear to me that the race was going to have something of a competitive edge." Mr Backhouse too had observed that the claimant, having been reluctant to get into line, "could have lined up at the end, but chose to push his way into a position between Alistair and James Briggs to try and get a more advantageous position." "The four participants were clearly very competitive", added Mr Backhouse. When cross-examined about his alleged behaviour, although the claimant did recall the need for Cracknell to brake as he rode in front of him, he explained that this was because, at the time, he was adjusting the gears on his bike and consequent lack of attention. He disputed having squeezed into a gap between riders at the start line and did not recall the comment which Mr Porter had said he had made.
19. The race began with the claimant taking the lead. In his witness statement, the claimant said that he had "been doing a lot of cycling, and I thought I stood a good chance to win the race." It appears that over the mile-long course the claimant maintained his lead throughout and was still in the lead when the collision with Cracknell's bicycle occurred. The circumstances and location of the accident are both very important, the former, in particular, being the subject of dispute, it being the defendant's case that the collision was caused by the claimant deliberately attempting to block Cracknell's path at a time when Cracknell was actually passing him, and thereby secure victory for himself. The location of the collision has been variously described as having been "on the home straight within a matter of yards of the final line" (Mr Backhouse's note); "In the home straight some 20 to 25 metres from the finish line" (Mr Briggs); "As we approached the finishing line" (Mr Porter). The claimant had no recall of precisely where the collision occurred, and that is not entirely surprising, given the injury he sustained.
20. The finish line is identified in photograph 9 at page 85 of the first trial bundle, uncontroversially as being at the datum point. That is, at the point where, in figure 3 (page 92) there is a junction between the straight section of road immediately after the start line and the end of the circular circuit around the edge of Liddon Wood. That point can best be seen in photograph 17, where a car is seen to be parked. That photograph is taken about 50 metres from the finish line. On the right-hand edge of the metalled surface track can be seen the gravel-filled French drain to which witnesses have universally referred. The circumstances of the collision were described by Mr Backhouse, who was standing at or near the finishing line in his contemporaneous written note as follows:

"On the home straight, when the cyclists came into view, the claimant was leading and was relatively tight into the side of the track. Alistair came out on the inside right within a matter of yards of the final line. Simon saw this and bumped Alistair, who then lost control of his bike and went into the shingle edging. As a result, Alistair fell off his bike and knocked into Simon's bike, who then came off the bike over his front handlebars."

In his witness statement Mr Backhouse amplified this description by stating:

"There was enough room for another bicycle to get through on the claimant's right, that Cracknell caught up on the inside right and came alongside Simon, and that Simon looked over his shoulder and saw Alistair there, and then deliberately leant his body and bike into Alistair's path, this immediately resulting in the collision."

[Emphasis added]

When cross-examined, Mr Backhouse was adamant that: "In my view, the claimant made a deliberate attempt to cut in on Cracknell." In his witness statement Mr Porter, who was 5 to 10 metres behind the claimant and Cracknell in the race stated this:

"I believe that Simon moved across deliberately to block Alistair as he was passing. The gap had been big enough for Alistair to have passed before Simon moved across. In my view, Alistair had the momentum and was performing a legitimate manoeuvre in passing Simon on the inside."

In his oral evidence Mr Porter was adamant that Cracknell was alongside the claimant when the claimant moved to his right, thereby causing the collision. He twice disagreed with the suggestion that the claimant would have been unaware of the position of Cracknell when he (the claimant) moved to his right. Mr Briggs, just behind and to the left of the claimant when the collision occurred, in his contemporaneous note said as follows:

"Cracknell then had a turn of pace and came up alongside Briggs, and then went to overtake Simon on his right-hand close to the edge of the track. The claimant peddled hard and increased his speed and drifted slightly to the right, closing down some of the space between him and the inside line. Unfortunately, Cracknell's front tyre slid into the gravel beside the track, which sent him flying headfirst into the gravel, and his bike then knocked into the claimant's bike, making it go over."

In his witness statement made to the defendant's solicitor he said that at the time of the collision

"Alistair Cracknell was in the process of overtaking on the inside." [Emphasis added]

He maintained this evidence when in the witness box.

21. It is obvious from the above summaries of the evidence as to both location and circumstances of collision that the evidence is significantly different in many material respects with the claimant's pleaded case at paragraphs 25 to 34 of the particulars of claim. The claimant's evidence is set out, first, in paragraph 214 of his witness statement. He said this:

"Some way into the race"

Because he was not sure where he was or when it was.

"As James was on my left side and Alistair on my right, I instinctively moved across slightly to defend my line to maintain a lead into the next emerging right-hand bend. I thought Alistair was going fast, because he had been at least two bike lengths behind me for most of the route, and now he was perhaps one to one and a half lengths behind me and consequently more in view. Alistair moved to the right, and I did the same, to take the racing line. Alistair was going very fast, faster that I appreciated. I felt our bikes touched and was surprised that he was so close. I could not see Alistair in my peripheral vision. I believe it was the rear wheel of my bicycle and the front wheel of Alistair's bicycle that touched. We were both then locked close together, and we were now virtually locked side by side. I could not steer properly and both Alistair and I lost control."

In his oral evidence he stated that when he had moved to his right "to take the inside curve, I thought he [Cracknell] was two bike lengths behind me." He denied any deliberate decision to block Cracknell in circumstances where a collision was bound to occur. It was put to him in cross-examination that he had "closed Cracknell down". He responded: "I shut down the gap by taking the racing line."

Post accident

22. In the days following this accident several things occurred, which, in my judgment, have relevance. Firstly, and most importantly, as has already been made clear, Mr Church, Mr Backhouse and Mr Briggs all made detailed, signed typewritten notes whilst matters should have been fresh in their memories. Secondly, on the day of the accident itself, "After the ambulance had departed", Mr Church and Mr Porter met Mark Kilmurry in his office. Mr Church's contemporaneous note reveals that they had asked for a copy at this stage of Fowlmead's health and safety policy, which was provided but which has not been disclosed. It then became clear that there had been no final risk assessment undertaken by Fowlmead for cycling activities. There was a draft which showed "the list of potential hazards, including collision as the first on the list". There was also a form on the office wall which described "Their requirement for handing over helmets and completing forms." The note concludes with what, in my judgment, is the telling comment:

"We had not been told that helmets were compulsory. There had been no mention of risks associated with racing or of risks associated with general cycling activities."

23. This brings me conveniently to a summary review of the evidence as to what risk assessments (if any) were taken by those responsible for organising the event. I should preface this by making it clear that it was no part of the defendant's case that risk assessment was unnecessary.

A review of the evidence relating to risk assessment and risk management

24. I begin this section of my judgment by observing that within the trial bundle (although never specifically referred to) is what is described as the defendant's "Employee and Office Health Safety Policy". It is dated 2005, but I have assumed it was current at the time of the accident. Unsurprisingly, it includes, as part of the general statement of policy, recognition of those obligations imposed by the common law in respect of safe places of work, training, instruction and supervision and systems of work. It includes a section on personal protective equipment (page 476), setting out, in summary form, what is required by the regulations (to which I will be coming in due course). It also appears that all of the witnesses who have given evidence in this case, including the claimant, attended a health and safety training session in January 2007 (page 512) at which risk assessment formed a part. An undated document entitled "Risk Assessments" (page 522) appears on the defendant's website, directed specifically to "Risk to employees and to others who may be affected by their undertaking" – their undertaking being, of course, the defendant's business. Mr Church made it clear that, because the defendant did accept responsibility for its staff during the event, a risk assessment was in fact carried out and was an ongoing consideration, he said. As I have already observed, Mr Church noted in his contemporaneous notes that he, Debbie Gaysford and Simon Backhouse had had "discussions about risks and our assessment of them on the day in question", and that those discussions had included "safety on bikes". Because it was considered that mountain biking might not be safe, as I have said, that activity had been discounted. There was no written risk assessment, and it is unclear what risks, if any, were identified in the context of bicycle use. It certainly appears that, notwithstanding that Mr Church, in particular, was aware of not only the availability of cycle helmets but also the HSE recommendation for their use, he did not consider the risk of collision during bicycle racing. He admitted as much in his witness statement, where he says:

"In considering with Mark Kilmurry the option of cycle racing, he did not mention at any time that we should consider the risk of collision. Neither I nor Simon discussed collision, and I certainly didn't consider collision was a risk in this event."

In his oral evidence he clarified this latter phrase to make it clear that neither he, nor Mr Backhouse, or Mrs Gaysford, had considered collisions at all, not that it had been considered and discounted as a significant risk. Despite this, he was unwilling to accept that the risk of collisions and the risk of falling off bicycles were, as was put to him by Mr Ford, obvious risks. Mr Backhouse, whilst not having dealt with his role in risk assessment at all in his witness statement, stated during this cross-examination that: "We took the view that the falling off a bicycle was not a risk."

Findings of fact and resolution of facts to the extent that there is dispute

25. Having reviewed what I consider to have been the relevant evidence, I now identify those facts which, in my judgment, are relevant to the conclusions I need to reach. Some of those facts are not disputed. Where they are, my findings of fact will be supported by my reasons for reaching them. Leaving aside factual causation (with which I will deal separately), findings of fact are required under two particular heads, with which I will deal in turn: (1) the circumstances of the accident. (2) The assessment of safety, including risks of injury in the organisation of the event and its management on the day.

The circumstances of the accident

26. The principal finding which, I regret, I have concluded I must make, having regard to the overwhelming body of evidence supporting it, is that the collision occurred as the result of a deliberate and tragically successful attempt by the claimant to force Cracknell out of the race altogether, or, at the very least, as a result of a reckless disregard for his own safety and that of Cracknell. This is not a case where I am able to find that the claimant made a mere error of judgment, oversight or lapse in the context of a fast-moving contest, or was otherwise guilty of momentary carelessness in the flurry and excitement of the sport. I must therefore reject that part of the claimant's evidence which asserts that he was unaware of the proximity of Cracknell and was merely taking a racing line. In truth, however, the claimant s own evidence, to the extent that it is reliable at all, which I find it is not given the consequences of the collision, contains considerable inconsistency and much that might (if it was reliable) support the conclusion I have reached. So, for example, he spoke of defending his line to maintain a lead, a necessarily deliberate tactical decision, and of being "virtually locked side by side" before there was loss of control, which is quite inconsistent with his thinking that Cracknell was two bike lengths behind him. All of the eye witnesses placed Mr Cracknell alongside the claimant before the claimant made a move to the right. In this position, which I find Mr Cracknell was, there can, in my judgment, be no doubt that the claimant was aware of his position and proximity and that he made a deliberate decision to prevent Mr Cracknell passing him, in the expectation, as I find, that Mr Cracknell would brake, avoid a collision and thereby allow the claimant to win the race. In doing all of that, with that state of mind, as I find he had, he was making a deliberate decision to behave in an aggressive manner, reckless as to the consequences. I accept the evidence of Mr Backhouse, Mr Porter, and Mr Briggs as to the position of Mr Cracknell before the claimant made any move, including the opinion expressed by Mr Porter during his oral evidence (being one which, in the circumstances, he was entitled to express and which is admissible under section 3 of the Civil Evidence Act 1972) that the claimant was aware of the presence of Cracknell adjacent to him and that he forced Cracknell off the track. I find that the claimant's explanation for what he accepted was an intentional movement towards the inside verge of the track is wholly implausible. I find as a fact that the accident occurred close to the finish line, certainly no more than 25 metres from it, and probably much closer. In those circumstances, there was no racing line for him to take which would require him to move to the right. As is clear, in my judgment, from Mr Mutche's aerial photographs and photograph 17 (page 174), where the photographer is twice as far from the finish line as I find the point of collision was, the claimant was around any bend that might have justified the taking of a racing line to his right. He was, as witnesses stated, on the home straight.
27. If further support for my conclusion was needed, then I find that, prior to the race, recognising that Mr Cracknell was his main rival, by virtue of their experience as cyclists and their competitive spirits, the claimant had attempted to unsettle Mr Cracknell in the ways described, in particular, by Mr Porter. I accept the evidence of those who spoke of the claimant pushing or forcing his way into a narrow space adjacent to Mr Cracknell rather than taking up a comfortable position on the available free area of the track. It is not disputed that, at the time of the collision, the claimant was not wearing a cycle helmet and that helmets were available, had he wished or been required to wear one

The assessment of safety

28. I find, as a matter of fact, that neither Mr Church nor Mr Backhouse, who had been given the responsibility of organising the event, had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors. That it was the most obvious of risks is confirmed not only as a mater of common sense (which both Mr Church and Mr Backhouse have but which they failed to apply) but by the document seen by Mr Church after the event in Mr Kilmurry's office. To the extent either of them suggested that they had considered the risk of collision or falling from bicycles, then, in my judgment, this was a suggestion born of hindsight.
29. I also find as a fact that neither Mr Church nor Mr Backhouse properly assessed the need to recommend, let alone require, the wearing of cycle helmets for those engaged in either of the cycling events. Again, in my judgment, neither of them were properly trained to make such an assessment, and the overwhelming impression I gained from listening to them give their evidence was that they were simply trying to apply their own uninformed view of the matter. There is no doubt that Mr Church became aware of the health and safety recommendation as to the wearing of helmets at Fowlmead, because he made a note of it in his day book. I find as a fact that this knowledge post-dated the meeting with Mrs Gaysford and Mr Backhouse in the office, as his contemporaneous note, in my judgment, confirms, and that, as a consequence, it was not discussed at all. In fairness, it was not the evidence of either Mr Church or Mr Backhouse that they had discussed whether or not safety helmets should be recommended or required at this meeting. All that had been discussed was bicycle safety as a vague concept, and the only conclusion that had been drawn was that mountain biking should not be offered.
30. As to the briefing at Fowlmead, I am not satisfied that any more was ever said than that helmets were available. I do not accept that members of staff were either encouraged to wear them, as suggested by Mr Church, or told that they should wear helmets, as suggested by Mr Backhouse, because, if that had been the case, then there is no sensible explanation as to why 11 out of 12 of the racing cyclists were allowed to race without one. For the same reason, and still less, do I accept Mr Church's oral evidence that "We decided we should recommend use of helmets, because that is what the Health and Safety Executive recommends". In his contemporaneous note, and in full knowledge of what had happened to the claimant, he went no further than recording that he had "mentioned the availability of helmets" at both the start and end of the briefing.
31. In my judgment, after the accident, both Mr Church and Mr Backhouse concluded that they ought to have required helmets to be worn. This occurred to them, in my judgment, when they visited Mr Kilmurry's office and made the discovery, too late, of the content of draft risk assessments and instructions of which they had been previously unaware because they had not asked for them. In my judgment, in the light of what they discovered after the event, they have each, but inconsistently, convinced themselves that more was said in the briefing than it was, because, as I find, they are now satisfied, not as a matter of mere hindsight but on proper reflection, that it ought to have been said and that they ought to have recommended the use of helmets and referred to the Health and Safety Executive's requirement. I find as a fact that, whatever was said about the availability of helmets during the briefing session at Fowlmead, it was not properly communicated. I accept the evidence, including that of Mr Briggs, who referred to there being "a bit of an atmosphere", that everyone was boisterous, noisy and talking over one another, possibly fuelled by some drink. It is not the case that only the claimant disputes hearing reference to helmets. Mr Briggs' evidence was that he had no recall of receiving any advice about helmets, even though he had listened to the briefing. Also, although Mr Porter did recall hearing that "helmets were available if we wanted to use them", it was his evidence that, when he was given his bicycle, he did not see nor was he offered any helmet.

Factual causation, including expert evidence

32. Although the defendant had no expert evidence of its own, Dr Chinn, the claimant's expert in vehicle safety, including, in particular, the use of protective helmets, was required to attend to give oral evidence. Mr Pooles QC's cross-examination of him was limited to dealing with the speed at which it is likely the claimant was riding and the speed at which his head struck the ground. That speed was, Dr Chinn opined, within the range where the use of cycle safety helmets is effective. Hence his conclusion that, if the claimant had been wearing a cycle helmet, it would have been very unlikely that he would have sustained the serious and permanently disabling brain injury that he did sustain. Mr Pooles QC conceded in closing submissions (if it had ever truly been in contention) that, so far as the use of a safety helmet is concerned, the claimant had established that the absence of a helmet was causative of some injury and that, consequently, causation was not an issue that I needed to expand upon. Dr Chinn was able to confirm that there is no legal requirement to wear a cycle helmet whilst riding a bicycle on a road, although the Highway Code does provide (at paragraph 59 of the 2007 edition) that cyclists "should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened". However, as Griffith Williams J observed in the case of Smith v Finch [2009] EWHC 53 QB (a case in which Mr Chinn also appeared as an expert witness):

"As it is accepted that the wearing of helmets may afford protection in some circumstances [and these are such circumstances in this case, in my judgment] it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road."

Although in that case the learned judge was not persuaded that the claimant's injuries would have been reduced or prevented by the wearing of a helmet, had he concluded otherwise he would have made a finding of contributory negligence against the claimant on the basis of the principles decided in the well-known case of Froom and Others v Butcher [1976] 1 QB 286.

The Law

33. I now turn to legal argument. It is pleaded on behalf of the claimant that not only was the defendant, by its servants or agents, negligent in failing to make any, or any suitable or sufficient assessment of risks posed by the cycle racing, and in failing to provide relevant information to the claimant as to those risks, and preventive or protective measures, and in failing to provide protective equipment and ensure it was worn, but also that those failings involved breaches of regulations 3(1) and 10 of The Management of Health and Safety at Work Regulations 1999 (risk assessment and provision of information), regulations 8 and 9 of the Provision and Use of Work Equipment Regulations 1998, regulations 4, 9 and 10 of the Personal Protective Equipment at Work Regulations 1992, and regulation 12 of the Workplace Health and Safety Welfare Regulations 1992.
34. It is common ground that none of the regulations to which I have referred have any application unless the claimant was at work. So, for example, regulation 3 of The Management of Health and Safety at Work Regulations provides:

"(1) Every employer shall make a suitable and sufficient assessment of—

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work…"

for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed on him by or under the relevant statutory provisions, which include the other regulations upon which the claimant relies in this case. As indicated at the beginning of this judgment, by virtue of section 52(1)(b) of the Health and Safety at Work Act 1974: "An employee is at work throughout the time when he is in the course of his employment, but not otherwise." Thus, the question is: was the claimant in the course of his employment whilst attending and participating in the event?

35. It has not been argued that it is unnecessary for me to deal with this issue, because the duty of care at common law, whether on an employer or an organiser of events such as this, is coextensive and coterminous with the statutory duties. Indeed, in respect of the provision of protective equipment, where an employee may be exposed to a risk safety, if not in respect of ensuring its use, the statutory duty is arguably stricter than the common law.
36. Mr Pooles QC submitted that attendance at this event was clearly not in the course of the employment of any of those who did attend, not least because it was not compulsory to attend at all and engagement in no part of the event was compulsory. He argued that employees are not employed to go on fun days, and that the event was a simple 'thank you' for the efforts of staff whilst they had been at work. Mr Ford QC argued that, notwithstanding that two members of staff did not attend but, rather, were probably, as I find, working, employees were expected to attend, particularly given that it was a Thursday afternoon when they would otherwise have been at work, that they were being paid their salaries, that the event was managed and organised by the employer, and that there was an element of team bonding which would be expected to foster an esprit de corps to the employer's benefit. Indeed, as I indicated in the opening paragraph of the judgment, the event was actually described in terms of being "team building" or "team bonding" by some of the witnesses.
37. The many cases which deal with the concept of "course of employment" are almost invariably dealing with whether a wrongful act is within the course of employment so as to attract vicarious liability, rather than the pure concept itself. Even in the usual context, it is said that "The question whether a wrongful act is within the course of employment is a mixed question of fact and law, and no simple test is appropriate to cover all cases" – Clerk & Lindsell, paragraph 629 20^th Ed. In HSBC Bank plc v 5^th Avenue Partners [2009] EWCA Civ 296 (a case to which I was not specifically referred) Etherton LJ held that ultimately the decision as to whether there is vicarious liability "is a conclusion of law based on primary facts rather than a simple question of fact". The so-called "Salmond test" is not particularly helpful to me. That test identifies when a wrongful act is deemed to be done in the course of employment, rather than defining what the course of employment is. The best one gets from this test is the requirement that it had to be closely connected with the employee's duties. If that test is applied, it can hardly be said that having a fun day out is closely connected to the work of a surveyor or planning consultant. As Lord Nicholls said in the case of Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, the "close connection" test tells us nothing about what type or degree of connection is necessary:

"This lack of precision is inevitable, given the infinite range of circumstances where the issue arises… Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions."

Unfortunately, I have no such assistance in this case. However, I am able to make an evaluative judgment. In the well-known case of Lister v Hesley Hall Limited [2002] 1AC 215, which considered issues of vicarious liability for the sexually abusive behaviour of a warden employee towards boys in a school boarding house, Lord Steyn deprecated conceptualistic reasoning (as he put it) and observed:

"Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice."

He went on to refer to what Diplock LJ had said in Ilkiw v Samuels [1983] 1 WLR 991:

"…the proper approach to the nature of the servant's employment is a broad one…'As each of these nouns implies' - he is referring to the nouns used to describe course of employment, sphere, scope and so forth - 'the matter must be looked at broadly, not dissecting the servant's task into its component activities - such as driving, loading, sheeting and the like - by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would.'" [Emphasis added]

Applying this approach, it is clear that in this case a jury would simply say that the defendant's staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.

38. Trying a third approach, which is sometimes referred to as "being engaged in something which is an ordinary incident of the work upon which someone is engaged", it is, in my judgment, impossible to say that having a fun day out is an ordinary incident of normal employment. On the contrary, by its very nature it is an extraordinary incident.
39. In my judgment, it is clear, having reached an evaluative judgment by seeking to apply the various approaches indicated by the authorities to which I have been referred, that neither the claimant nor anyone else was in the course of their employment when taking advantage of the defendant's hospitality. It offends a sense of justness and reasonableness – "Can it be fair and just to hold the employer vicariously liable"(per Lord Steyn in Lister). It offends, in my judgment, a sense of justness and reasonableness to conclude that the Health and Safety at Work Act and associated regulations were ever intended to be of application in the circumstances of this case. That is yet another reason why "at work" and "in the course of employment" in the context of those regulations should be construed as I have done.
40. It is consequently strictly unnecessary for me to reach any conclusions on whether the provision of regulation 3(2)(e) of The Personal Protective Equipment Regulations inure for the defendant's benefit. However, if I were wrong about the application of the regulations at all, then I would have concluded that the playing of competitive sports (which is the exception within the regulation) does not include the kind of recreational activity upon which the claimant and others were engaged; rather, as the guidance note to those regulations suggests, it is intended to apply to employed professional sports people.
41. My consideration of the law must, however, conclude with a consideration of what duty of care was owed by the defendant to the claimant. It is not argued that there was no duty owed by those who organised the event, namely Church and Backhouse. Nor is it argued that the defendant is not vicariously liable for any breach of duty of care they owe, because they, Messrs Church and Backhouse, were not acting in the course of employment when arranging and organising the event. They clearly were. Although the event was not in the course of employment, one cannot, in my judgment, simply ignore the relationship of employer and employee – see Ministry of Defence v Radcliffe [2009] EWCA Civ 635 at paras 21 and 22. It is, in my judgment, from that relationship, as well as the relationship of organiser and attendee, that the duty of care arise. In my judgment, the duty on the defendant in this case was about to take such reasonable care as any reasonable employer would take (a) to ensure that employees were reasonably safe in engaging in the activities which the employer had arranged and (b) in the making and management of the arrangements that were being organised.
42. In my judgment, that duty of care includes the making of adequate and suitable risk assessments, which, in my judgment, as was conceded in the case of Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66, are the same as those owed under the regulations to which I have referred. In that case, in passages to which I have referred, Smith LJ stated:

"It is obvious that the failure to carry out a proper risk assessment can never be the direct cause of an injury. There will, however, be some cases

And this is one, in my judgment.

"in which it can be shown that, on the facts, the failure to carry out a proper risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. A decision of that kind will necessitate hypothetical consideration of what would have happened if there had been a proper assessment."

Conclusions

43. In my judgment, on the facts I have found and applying the law as I have found it to be, the defendant, by Mr Church and Mr Backhouse, were in breach of the duty of care as I have just defined and delimited it. There was a clear failure to carry out a sufficient and suitable risk assessment. In fact, in my judgment, there was no real risk assessment at all beyond excluding mountain biking. I accept Mr Ford's submission that the risk of collision in a competitive bicycle race between amateur riders was a very obvious risk, as was the potential consequence which, unfortunately, materialised in this case. The most important failure in the risk assessment process was the engaging of the management of Fowlmead in the assessment process. Had this been done, as in my judgment it ought to have been, then it would have become clear that there was not only the recommended use of helmets by the HSE, which itself was, in my judgment, ignored, but the compulsion upon which Fowlmead would have insisted for ordinary members of the public visiting the facility. This only became clear immediately after the event when, belatedly, Mr Church sought information about Fowlmead's health and safety policy. The final paragraph of Mr Church's contemporaneous note contains the kernel of that which can fairly and legitimately be said to be the foundation of their failures. This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use. That is all part of the assessment process.
44. I find, further, as facts that (a) had Mr Church and Mr Backhouse and, in particular, Mrs Gaysford, been aware of Fowlmead's policy, they would have required their employees to wear helmets in cycle racing, and (b) the claimant would have done that which he was required to do. That was his evidence, and on this I have no reason to doubt it. It was argued that, because the claimant was an experienced cyclist, he could, had he wished, have chosen to use a helmet, and the fact that he did not supports a conclusion that he would not have complied with any requirement. I do not accept that argument. If the defendant had required the wearing of helmets and some of the staff refused to wear them, then they would, quite simply, and in accordance with the assessment they should have made, have excluded them from the bicycle racing activity.
45. If it is necessary to do so, I further conclude that there was negligence in communicating information about the wearing of helmets. Given what Mr Church had been told by Mr Kilmurry, even though it was actually incomplete, then, at the very least, Mr Church should have discussed with his organising colleagues what was said to be an HSE recommendation for the use of helmets, and passed that on in the written instructions to staff at the briefings. To avoid spoiling the surprise, a simple instruction that safety equipment would be provided to those who chose the activity and should be used would have sufficed.
46. It follows from my findings of fact in respect of the claimant's riding that he was contributorily negligent. He was also aware that cycle helmets were available, if only by virtue of having seen his main rival wearing one and, in this respect, he was also contributorily negligent in his failure to protect himself from harm. I am not satisfied that either the claimant or Mr Porter are correct in asserting that they did not see helmets when, from the photographs (particularly that in trial bundle 506), they were clearly there to be seen. In my judgment, the failure of clear communication by Mr Church as to the availability of helmets means that they have now both forgotten what they actually saw, but, as I find, decided not to use. Clearly, if those who fail to use helmets on quiet country roads are contributorily negligent, those who engage in competitive racing, even for fun, or perhaps because it is fun, should be held partly to blame for the failure to protect themselves.
47. I have been referred to and considered the terms of section 1 of the Compensation Act 2006. Whilst the reward of employees by employers in ways such as that chosen in this case is a desirable activity, I am quite satisfied that requiring employers to take reasonable precautions for their employees' safety will not discourage employers from doing it, or discourage employees from taking part. On the contrary, fun activities are likely to be more attractive if employees are assured that their safety has been properly considered.
48. Therefore, the final matter I need to determine is how liability is to be apportioned. In making this assessment, it is not simply a matter of assessing the comparative blameworthiness of the parties, but of their respective responsibility for the damage, particularly bearing in mind the defendant's duty of care involved, on my findings, taking precautions against the claimant's own negligence. That needs to be weighed against the fact that the claimant's fault was causative of the injury he suffered. In the final analysis, I need to assess both relative blameworthiness and causative potency of the parties' respective faults. In my judgment, given my findings as to the claimant's responsibility for the collision, he must accept the greater proportion of blame. In these circumstances, in my judgment, a fair apportionment of liability is two thirds/one third in favour of the defendant. The claimant will thus recover one third of the damages to which he would otherwise have been entitled on a full liability basis.
49. I think that the appropriate form of judgment is that there should be judgment for the claimant on the issue of liability, subject to the finding that he was contributorily negligent to the extent of two thirds.
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