England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PRESTON DISTRICT REGISTRY
Royal Courts of Justice

		Strand, London, WC2A 2LL
		22/05/2013

Mr Justice King:

1. This is a claim for damages for personal injuries, and consequential losses suffered by the claimant arising out of an accident on 26^th April 2006. On that day the claimant was riding a motorcycle and sidecar outfit around a racing track circuit known as the Rowrah Stadium in Rowrah, Cumbria, participating in an event known as 'Moped Mayhem'. This was an amateur event for moped enthusiasts. The accident occurred when the outfit came off the track at a relatively shallow left hand bend after a much more pronounced right hand bend known as the 'Stewart Esses' and before another right hand bend known as St Johns. Although there is a debate as to what caused this to happen, it is not in dispute that the outfit thereafter continued straight on across the infield grass, went across a section of tarmac service road, across onto another piece of infield grass before going through a 'v shaped barrier' made up of two lines of tyres, each line made up of single tyres laid in a herringbone fashion, dispersing the tyres as it did so, before finally colliding with an ambulance parked in the service road immediately behind the barriers, a matter of feet away. The claimant was wearing a motorcycling helmet, accepted to be of a good quality with the appropriate kite mark.
2. The outfit was powered by a 100cc Yamaha RXS 2 stroke engine. The claimant and his sidecar passenger, Mr Philip Hales, were experienced riders. The claimant was very competent in relation to mechanical matters. He worked as a mechanic in his day job. The outfit machine was built by him and his partner and was very much a product of his – and Mr Hales' – personal devotion.
3. The first defendant is the leasehold owner, occupier and operator of the circuit. It uses its circuit only for karting events. The second defendant had hired the circuit for the event in which the claimant was participating. The third defendant motor sports association was the governing body for motor sports in the United Kingdom and issued annual track licences to the first defendant in respect of the circuit and would carry out inspections of the circuit. The most recent track inspection prior to the claimant's accident was on 25^th July 2002. The evidence was, however, that the third defendant was not the governing body for sidecar outfits although it would be for karting. In fact the evidence was that there was no regulatory body for such outfits. The only other body mentioned in this case, the ACU (the Auto Cycle Union Ltd) is in respect of motorcycles. They too would issue course/track licences to organisers for solo motorcycle events, as distinct from the first defendant, but the evidence in relation to the ACU in the present trial was very limited.
4. The present trial has been limited to the preliminary issues of causation and liability.
5. The claim against the third defendant has been discontinued.
6. The case against both remaining defendants has been pleaded both in breach of the common law duty of care owed to the claimant and in breach of the occupier's duty of care under the Occupiers Liability Act 1957. It is accepted that the statutory duty includes a duty of care in relation to activities carried on by visitors to the track as well as with regard to the structure and layout of the circuit but as the Act provides no higher or lower standard of care than at common law, the pleading under the 1957 Act adds nothing of consequence.
7. The defendants concede that the duty of care on each, upon the first defendant as owners of the circuit and hirers out of the circuit for track events and upon the second defendant as organisers of the event, was to take reasonable care to ensure that the claimant and other participants were reasonably safe during their participation in the event. It is common ground that as regards standard of care in the context of motor sports the test to be applied is to be found in the well known medical negligence case of Bolam v Frieren Hospital Management [1957] 1 WLR 582; See in particular Wattleworth v Goodwood Racing Ltd [2004] PIQR P 140 and the unreported 1991 first instance decision of Steele J. (upheld in the Court of Appeal) in Stratton v Hughes. Mr Eklund QC, on behalf of the defendants, stresses the incontrovertible points of principle that the test on liability is foresight not hindsight; that, for example, whether the layout or the barriers could have been 'safer' or whether another layout or barrier is 'safer' is not the question but whether the layout, barriers and organisation were unsafe in the sense that they exposed drivers to an unnecessary risk of injury (citing Beldam LJ in Smith v Flintrace, March 1958 transcript at 15D); that in assessing the scope of the duty, the risk of injury must be reasonably foreseeable and in the context of motor sport this must mean that what requires to be reasonably foreseeable is the additional risk of injury above that which is inherent in the sport; that the duty has to be assessed with reference to the standards of reasonably competent organisers of karting and motorcycling, including side car events. Any assessment of risk and what is acceptable or what needs to be done about it requires an assessment of the likelihood of the risk coming to pass and the consequences if it does.
8. See further on this aspect the strictures of Thomas LJ in Stratton v Hughes (Court of Appeal transcript, March 1998 at 5G - B). As will be seen the defendants stress in this case the lack of evidence that anything had happened in the past which should have alerted them to the risk of the accident which did happen in this case in fact happening.
9. Mr Glancy QC, on behalf of the claimant, does not dispute these principles but reminds the court that it is trite law that a defendant does not have to foresee the precise concatenation of events which occurred if it was reasonably foreseeable that something of that kind would occur and it was a risk against which the defendant ought to have taken reasonable precautions. This submission is made in the context of a dispute in this case as to why precisely the claimant's outfit came off the track at the point it did. Was it because the side car passenger was too far over to the right for the bend when to take the bend safely he needed to be bending to the left (as suggested by Kevin Wright)? Was it because the seat had become loose and as a result it had fallen down into the outfit jamming the throttle? Or had the throttle become jammed for some other reason? (As suggested by a combination of the evidence of a marshal, Mr Souness positioned at a post in the vicinity of the bend and the evidence of the transcript of a contemporaneous recording taken by his wife of the words of Mr Hales, the sidecar passenger, not long after the event)
10. The claimant's primary case in this claim is that it was reasonably foreseeable that motor cycles/sidecars would come off at this bend and head towards the tyre barriers and ambulance and that the defendants had failed to take all reasonable care to prevent any such outfit from colliding with the ambulance, which in any event had no business being in the position it was and which in itself in that position represented a foreseeable and unnecessary risk of injury. The particulars of negligence and/or breach of statutory duty pleaded in this context at paragraph 9 are:

'b) they failed to take any or any adequate steps to minimise the risk of injury to drivers/riders from their vehicles colliding with the said tyre barrier. The claimant's case is that it was entirely foreseeable that a vehicle going off the track for whatever reason would probably collide with the said tyre barrier in the way the claimant's vehicle did;…

c) they failed to erect a smooth and continuous barrier at the accident location; …

e) they failed to pay any or any adequate heed to the fact that it was foreseeable that vehicles would lose control and go off the track and come into contact with the tyre barrier at speed;

f) they caused or permitted the ambulance to be parked behind the tyre barrier thus causing an unnecessary and foreseeable risk of injury to drivers/riders using the said circuit particularly in a race;

g) they failed to ensure that the ambulance was parked in a safe or proper condition and/or if it had to be parked within the inside of the circuit, that it was adequately, properly and safely protected by suitable tyre barriers which were adequate to prevent vehicles colliding with it …

j) they failed to ensure that the tyres forming the tyre barrier were suitable or appropriate and/or were properly secured together and/or were filled properly or at all;… .'

11. The claimant prays in aid at this stage the pleaded defence at paragraph 9(b) of the amended defence: (paragraph 9 of the defence responding to the particulars given in the claimant's paragraph 9):

'b) it was indeed foreseeable that a vehicle leaving the track unintentionally and at speed 'would probably collide with the said tyre barrier' which is precisely why it was there'

although I should equally record that the pleaded defence is that '(f) and (g) the location in which the ambulance was positioned was adequately protected by a series of two … tyre walls and that (j) the barrier was adequate and appropriate;'.

12. I should also record one further part of the pleadings which is the Further Information given by the claimant of particular (b) in response to the request:

'of (b) Is it the claimant's case that there should have been no tyre wall here at all or that a different type of wall should have been built?'

To which this further information is given:

'The safest way to slow a vehicle is to provide enough room to decelerate safely. If neither the tyre walls nor the ambulance had been placed on the infield, there would have been enough run-off area for the Claimant either to have stopped or slowed to a speed such that he could have rejoined the track safely. This would have been the safest way of ensuring that no injury occurred to riders such as the Claimant whose vehicles left the track at the point in question. If, for some reason, it was necessary and prudent to place the ambulance where it was, then, given that it was foreseeable that vehicles would leave the track at that point, it was necessary to have a tyre wall to prevent impact between vehicles leaving the track and the ambulance. A deflecting barrier along the edge of the track should have been put in place, and, if it had, then the vehicle and its occupants are likely to have struck the barrier at a shallow angle and been deflected. Alternatively, an appropriate energy absorbing barrier placed before the ambulance should have been put in place in which case the vehicle and the occupants would have been stopped and prevented from striking the ambulance and the potential for injury would have been greatly reduced. The probabilities are that the Claimant would not have suffered any serious or significant injury in that case. As it was, the photographs taken after the incident in question show that the tyres were considerably dispersed and had done little to retard the Claimant's vehicle.'

13. The other pleaded allegations of breach of duty are in these terms:

'd) they failed to heed and act upon the guidance and/or guidelines given by the third defendants/and or the FIA/CIK safety criteria and/or publications coming from the FIA or other available information or guidance. The claimant cannot give further information in relation to this allegation until expert evidence is to hand …

h) they failed to devise, institute and/or enforce a proper system of inspection of the circuit and/or to ensure that the said circuit was inspected by an appropriate expert sufficiently often or at all; …

k) they failed to supervise the said event adequately or at all;

l) they failed to inspect and/or check the claimant's vehicle adequately or at all; …'

The evidence called before the court

14. The court had the benefit of a site visit and viewing a video taken of the material race.
15. Lay evidence was called by the claimant from Mr Hales, his wife Patricia Hales who took a video recording of the race with audio, from Nigel Trickett and Douglas Marton both fellow competitors on the day, and with prior experience of the course. The defendants called the lay evidence of Malcolm Fell the President of the first defendant; Paul Hughes and Simon Clowes, respectively the second defendant's Clerk and Deputy Clerk of the Course on the day; Geoffrey Douglas who had formed the second defendant and his son Robert Douglas who was generally assisting on the day; Kevin Wright a fellow competitor on the day again with past experience of the course; James Souness acting as one of the second defendant's marshals on the day and Andrew Fyffe one of the paramedics with the ambulance.
16. The claimant asked the court to have regard, as he was entitled to under the Rules of Court, also to the witness statements of defence witnesses not called by the defendants, namely those from Mr Greenland the second defendant's scrutineer who had inspected the claimant's outfit before the race and from Indra Mudie a qualified dental nurse who was the other member of the ambulance team on the day.
17. The defendant placed like reliance on a claimant's witness statement of a fellow competitor James Fletcher.
18. As regards expert evidence, the court heard as regards the circuit and circuit safety from Dr Chinn and Professor Troutbeck for the claimant and defendants respectively; and as regards the motorcycle outfit from Dr Happian–Smith and Mr Parrish respectively. The expert medical evidence was from Dr Stoodley (claimant) and Dr Kendall (defendant).

The immediate circumstances of the accident

19. The claimant by reason of his injury was not fit to give evidence. The only witness to the impact with the ambulance itself was the sidecar passenger, Philip Hales. The only other witness able to give evidence of the impact with the barrier was Kevin Wright, called on behalf of the defendants, who was viewing the scene from some distance away.
20. Mr Hales' evidence was that the maximum speed of the outfit was about 50 mph (the expert evidence was that of 55-60 mph); that where the outfit came off was the fastest part of the circuit and they were probably doing about 40-45 mph when they came off the track; in his witness statement and in oral evidence he described how the claimant did apply both brakes, that he pulled the clutch in (that is to say disengaged the clutch), the engine stalled and described both wheels locking, although he conceded that there was no time to slow down to any degree and did not disagree with the description of the defendant's witness Mr Souness positioned at the Marshall post in the vicinity of the material bend that he had got the distinct impression that rather than slowing down the speed increased as the outfit went across the grass. In his recent witness statement Mr Hales describes how 'we left the track and went across the damp grass between the track and the first line of tyres at full speed like a tray on a snow skid'. Mr Hales' final words on this topic in re-examination were that he was never conscious of the speed decreasing – 'on the damp grass we picked up a bit of speed'. He thought that the speed at impact with the ambulance was about 30-40 mph. In the transcript however he is to be heard saying:

'the seat came off and it pulled the throttle wide open we couldn't shut it down I couldn't get to the wotsit the kill switch. Pete got the front end locked solid I mean he must have skidded all the way across here.'

21. Mr Wright's evidence was that the sidecar passenger appeared to be fiddling with something in the engine compartment where the throttle cable entered and continued to be over on the right hand side and was behaving in this way when the outfit travelling at competition speed which he put at 45-50 mph, came out of the Esses Bend and travelled to the material left hand bend where the outfit left the track; in other words that Mr Hales was in the wrong position for the bend in that he had failed to move over to the left with the result that the claimant could not keep to the racing line. Mr Hales denied these suggestions, and made the point he was wearing leather gloves which would have made fine 'fiddling' work impossible, although he conceded that there had been something wrong earlier in the race with the seat but this had been solved long before the accident. He further denied Mr Wright's evidence that on the Friday before the Saturday of the accident he had reported problems with the brakes and the throttle. Mr Hales could not explain why he said what he had on the transcript.
22. Mr Souness's evidence was that from his Marshall post opposite the left bend – or thereabouts – he got the impression that as the claimant came around the top bend and approached his post he thought he saw something fall from by the rider down into the machine, which was something red, which he assumed to be the seat and which explained his later short statement, made later that day, in these terms:

'the vehicle concerned was passing Marshall post 6 – where I was on duty when the seat came off and obstructed part of the vehicle. I looked left and right. I then heard a big bang, the vehicle had crashed into the ambulance; I put out the red flag. The medics took over immediately'

Mr Souness under cross-examination did state further that it was 'only when they were coming off the track, passing me on the grass, that I noticed the seat'.

The claimant's position post collision

23. It is not in dispute that the claimant was found immediately after the collision with the ambulance with his chest slumped over the handlebars, and his head positioned below the skirt of the ambulance. This evidence comes from the medical team in charge of the ambulance. Andrew Fyffe, as I have indicated, was called by the defendants to give evidence. He had been at the rear of the ambulance towards the offside when he heard a noise, though he said not the noise of a collision, which led him to go round to see what had happened. The other member was, as indicated, Indra Mudie who was not called but whose defence witness statement is relied on by the claimant. She was within the ambulance when she felt the ambulance 'rock slightly' – though not enough to spill her coffee. Neither Mr Fyffe nor Miss Mudie could see any damage to the helmet which they both inspected. This is in contrast to Mr Hales who in a very recent statement of March 2012 purported to remember that the inner polythene lining was squashed at the top of the helmet where the claimant's head would have been.
24. The claimant's sidecar passenger was no longer on board. When he came off is a matter of dispute. Mr Hales' own evidence was that he, being on the sidecar to the claimant's left, had himself struck the passenger door area of the ambulance and then bounced backwards away from the ambulance. The evidence of Mr Kevin Wright was that the sidecar passenger departed the outfit 'as he struck the tyres' and then the claimant 'carried on at a slower speed towards the next line of tyres' before going out of his sight. Mr Wright's evidence was that at this stage the claimant was 'still in a competitive driving position on the motorcycle and did not appear to have moved at all'. Mr Robert Douglas' evidence was that when he came upon the aftermath of the accident, the side car passenger was lying on the grass a good distance away, which he put at 15 to 25 yards away. What however is not in dispute is that Mr Hales suffered only some minor bruising. As regards the journey through the tyre barrier Mr Hales' evidence (in his witness statement) was that 'we hit the first part of the tyre which did not slow us down at all and if anything seemed to 'launch us' into the air.' Mr Wright's evidence under cross-examination was to say he thought that the tyres did slow the machine down but he could not say by how much but to the question 'but they did not slow it down dramatically quickly?' he did say 'Not like hitting a brick wall'.

The claimant's head injury

25. The claimant suffered a serious brain injury in the accident. The expert consultant neuroradiologists, Dr Stoodley for the claimant and Dr Kendall for the defendants, are agreed that the CT scans performed on the claimant's head on 29^th April 2006 (an initial one performed at 15.00 at West Cumberland Hospital and a later one at 23 40 at Newcastle General Hospital), show multiple areas of haemorrhagic diffuse axonal injury (DAI) likely to have occurred as a result of a rapid deceleration event. Both experts agreed that there was here evidence of a severe rotational injury, that is to say injury resulting from severe rotational forces causing tearing injuries, the brain not being fixed in the skull. There was however no evidence of any fracture to the skull itself or contusions to the scalp or skull, in particular no evidence of any contusions to the cortex of the brain, or any focal injury. There were equally no fractures to the upper cervical spine. There was however evidence of thoracic and rib injures, that is to say multiple rib fractures at the junction of the ribs with the thoracic vertebrae from T1 to T9 which were themselves in the nature of tearing or shearing injuries. Dr Stoodley also saw evidence of generalised and irregular scalp swelling (not however relied upon as evidence of impact injury) although Dr Kendall believed the scalp appearances to be normal.

The causation issue

26. Whether the claimant suffered his DAI head injury through impact with the ambulance, as distinct from his suffering the causative deceleration forces when going through the tyre barrier, has been in dispute throughout the trial. Dr Stoodley's evidence was that the severity of the brain injury was such that the mechanism of injury was likely to have been an impact upon a hard unyielding surface and this was so, notwithstanding the absence of any skull injury with the lack of focal bruising being explained by the use of the helmet. He said it was very rare to see this extent of DAI and thought it unlikely for a mere 'jolting' mechanism to have been responsible given the absence of cervical injuries. He did however concede that the thoracic and rib injuries would have had to have been caused by a separate mechanism from that which caused the head injury. The claimant would say that these are explained by the impact of the claimant's chest with the handlebars, after he had been thrown forwards and pitched downwards following the immediate impact of the front wheel of the outfit hitting the ambulance, as evidenced by the evidence of the damage to the tachometer/instrumental dial on the bars which was rotated forward. This mechanism of the accident is supported by the claimant's respective safety and motorcycling experts, Dr Chinn and Dr Happian-Smith.
27. Dr Kendall however was of the view that a direct impact was not required to cause DAI or this severity of DAI and prayed in aid the absence of any fracture to the skull and what he said were usual direct impact features namely a fracture of the skull and cortex injury. He did however concede that he could not exclude the possibility of a direct head impact. The defendants pray in aid moreover the limited and minor damage to the ambulance as discovered after the event which as far as visible damage is concerned was restricted to a dent to the filler cap cover (itself just behind the ambulance front passenger door) and, just beyond that cover, going rearwards, some external minor damage low down to the fibreglass side body adjacent to the B pillar itself. Dr Happian–Smith did however on a recent examination find the existence internally of stiff structures at the level of that damage - in particular a steel beam running longitudinally as well as the floor coming into that area, and the vertical outrigger. The defendants also pray in aid the lack of any reliable evidence that the helmet was showing signs of damage, such reliable evidence as there was (they would say that of Mr Fyffe) being positive evidence to the contrary.
28. This dispute on the causation of the head injury spawned in the course of the trial a complex dispute between Dr Chinn on the one hand and Professor Troutbeck on the other as to the likely deceleration forces impacting upon the 1) the outfit, 2) the claimant as the outfit went through the tyre barriers and whether 3) such forces were capable, as a matter of principle, of causing the severe brain injury found in this case. This issue arose because the only realistic candidate as the likely source of the required deceleration forces other than the impact of the moving outfit with the stationary ambulance was the tyre barrier. No expert suggested that the cause might have been the claimant's head hitting some part of the motorcycle.
29. In the event Professor Troutbeck ultimately had to concede that he was no expert on the causation of injury, and in particular on brain injury at a specific rate of deceleration.
30. However I should record the nature of the dispute. The starting point is the reliance by Dr Chinn on information contained with a paper known as the CEN paper utilised by the European Union for the testing of the efficacy of helmets which at table 4 gives the differing levels of 'g' force required to be applied to the brain to produce head injuries of differing severity. For a head injury whose severity would appear to correlate most closely to that sustained by the claimant (given under the heading 'severe' and including the numerical value (AIS 5)), the required 'peak acceleration' (or deceleration) is at least '250 g'; a peak force of less than 50 g produced a zero injury. This information is itself said to be based on research by Newman in a paper of 1990. The experts then sought to give their rival opinions of the likely level of 'g' force generated when the outfit went through the tyre barrier given what is known of the make up of the barriers, the sort of tyres used, and how they were simply placed side up upon each other without any sort of binding. Reliance is then placed upon the research of Wright and Mellor into barrier testing. This was research commissioned by the FIA for the carrying out of a series of barrier impact tests using a F3000 car. This concluded that a barrier comprising of columns of 6 tyres high, 5 columns wide and 3 columns deep – on any view considerably bigger and stronger than the present - decelerated the test vehicle at an average of 1.8 'g' at 60 kilometres an hour and recommended tyres bolted together with tube inserts and with belting fitted to the face of the barrier. Professor Troutbeck sought to dispute the validity of this test given the 'needle like shape', of the F3000 nose, and the difference in weight of the respective vehicle/outfit, but I find nothing turns on this given that when one looks at the photographs produced, the F3000 test car is similar in width to the outfit, and even if one makes allowance for differences in weight (remembering however the outfit included the weight of its passengers) this is offset by the fact the accident barrier in the experiment was of significantly greater proportion than that with which this case is concerned.
31. Dr Chinn's evidence was then that with an average of 1.8 'g' it is not possible to reach a peak of 250g. His evidence was also that one would expect a similar level of 'g' to be applied to the claimant's brain as was applied to the outfit given on the evidence the claimant was in contact with the vehicle as it passed through the tyres ( see again the evidence of Kevin Wright).
32. Of course everything depends upon the speed at which the vehicle in question meets the barrier, the reduction in speed as a result of the 'momentum exchange' between the vehicle and the tyres (and here there was a dispute as to how many tyres would have been involved for this purpose, given the width of this particular outfit - . Dr Chin said no more than 4, Professor Troutbeck suggested five) and just as critically the time over which the deceleration forces to take place. To this end Professor Troutbeck in the course of his evidence produced overnight a table (known as T2) in which he sought to calculate the maximum deceleration 'g' force which was involved at the first row of tyres according to a number of variables, that is to say the initial speed at which the outfit left the track, whether there was any braking, whether there was any passenger. Even on the 'worst case scenario' (from the claimant's standpoint), that is an initial speed of 50mph, with no braking and no passenger, these calculations shows a maximum 'g' of 5.6, well below that capable of demonstrating anything like the force required to produce the sort of head injury with which this case is concerned. At the lowest set of variables – an initial speed of 45 mph with a passenger and braking, the result is 2.0 'g' in line with Dr Chinn's own evidence on the issue. That table also shows a likely speed after going through the second row of tyres and just before the impact with the ambulance of anything between 11–25 mph. This I might say is itself a marked increase of Professor Troutbeck's initial opinion of a speed at the ambulance of some 5mph.
33. Mr Eklund has nonetheless sought to extrapolate from these Troutbeck calculations, evidence to support the proposition that the 'g' was in fact considerably more in reality. This is based on the evidence of Professor Troutbeck that he used a time period – that is to say the period over which the forces took place – of 0.1 seconds in comparison to what it is suggested was the evidence of Dr Chin that the appropriate time period was a much shorter one of 0.003 (3 milliseconds) and hence the Troutbeck figures have to be increased by a multiple of 33.
34. I agree however with Mr Glancy that there is a fallacy in this reasoning. Dr Chinn's evidence was that one cannot work forwards and calculate the appropriate level of 'g's by knowing only the reduction in speed, because one cannot know the relevant time period. I accept that all Dr Chinn was saying was that for a peak of 250g to be achieved it is necessary to exceed 80 'g' for a period of 0.003 seconds this being the accepted industry standard for the purposes of assessing vehicle safety (see Euro ENCAP paper) but that he had never suggested that this was the period over which the decelerative event in this particular case occurred. In effect both experts were in agreement that this relevant period for this particular event was 0.1 seconds on the basis of which even Professor Troutbeck's calculations cannot support a conclusion that it was the tyre barriers which were the likely cause of the necessary decelerative forces in this case.

Court's conclusion on causation

35. The upshot of my consideration of all the evidence material to the question of causation is that I cannot accept that the claimant going through the tyre barrier had anything to do with his head injury whatever might have been the speed he was doing at the time and I consider that the only likely explanation for the claimant's head injury was the collision with the ambulance, which I so find to be the case on the balance of probabilities. There is no other sensible explanation in the circumstances of this case.
36. That it cannot have been anything to do with the tyre barriers is based not only upon my preference for Dr Chinn's evidence over that of Professor Troutbeck, as Dr Chinn's evidence appeared to me to be well reasoned and supported by the available research, but by the circumstantial evidence which I have already rehearsed of the very modest effect the barriers had on decreasing the claimant's speed – see again not only the evidence of Mr Hales but also that of Mr Wright. I am quite satisfied moreover – again based on Mr Wright's evidence – that whether Mr Hales departed the outfit before or not before it hit the ambulance he was certainly still on it when it hit the first row of tyres when the rate of deceleration would have been at its maximum and it is not without significance that Mr Hales himself suffered no kind of brain injury. I am satisfied that as a matter of probability the decelerative forces when going through the tyre barriers were very modest and certainly insufficient to cause a head injury of anything like the current severity.
37. That the claimant hitting the ambulance is the likely source of his head injury is further supported by my consideration of the totality of the factual evidence relating to the damage to the outfit, the damage to the ambulance, the presence of hard structures within the ambulance against which the claimant's head could have had contact and the expert evidence on the likely way in which the claimant's head could have come in contact with such structures, as well of course the rival medical evidence on the likely mechanism of the head injury which I have already rehearsed. I reach this conclusion without having to place decisive reliance upon the evidence of Mr Hales that the claimant's head hit the ambulance and specifically at the 'B' pillar of the ambulance, albeit I observe that he was not challenged on the assertion in cross examination. There are aspects of Mr Hales' evidence – particularly in relation to the inspection of the helmet and his explanation – or rather lack of explanation for his contemporaneously recorded words – which mean he cannot be regarded as reliable in every respect. And I accept there is doubt as to whether the width of the helmet meant that the 'B' pillar can have been the source of any direct impact.
38. As to the damage of the outfit, apart from the subsequent examinations of the parties' experts, there was in this context the significant evidence of Mr Greenland, the Scrutineer, who examined the outfit immediately after the accident. Although he was not called before me, his witness statement was lodged by the defendants and the claimant is entitled to invite the court to have regard to it as evidence in the trial. Mr Greenland wrote a short contemporaneous report in which he described the damage in these terms:

'Right fork leg (bent to right and rear);

Top yoke (bent right hand side)

Bottom yoke (broken to right) 1 Bent on left)

Left fork leg (bent to right and rear)

Front wheel and spindle (pushed to right and rear)

Left wheel bearing (displaced 2).'

In his witness statement Mr Greenland gave his opinion that the damage he saw was 'caused by a very heavy impact with something but I do not know what'.

39. As to Dr Chinn and Dr Happian–Smith the two key pieces of evidence on this issue are as follows. Dr Chinn's evidence was that the chest injury was likely to have been caused by the claimant coming down on the handlebars. He explained the mechanism in this way: when the outfit hit the ambulance and the moment the forks began to bend, the claimant would have started to move forward and the position of his legs would have meant that he would have moved downwards so he would move forwards and downwards. His head would have struck the ambulance and in the same motion the upper body would have rotated downwards over the handlebars and would have caused his chest injuries. His head would be flexible on his neck and would strike the ambulance and would not have prevented the chest from continuing downwards. Again I found this evidence cogent and well reasoned and there was no counter expert evidence in my judgment sufficient to contradict it. Dr Happian-Smith agreed with this suggested movement of the claimant and that his chest would have come into contact with the tachometer which was not robustly attached. Dr Happian-Smith told me that the claimant's head could have hit the ambulance where the outrigger was behind the fibreglass of the ambulance on a downward trajectory; the front wheel would hit, the rider would begin his trajectory, the outfit would rebound and the rider would then hit the ambulance about 600 millimetres above the ground. He then identified the damage to the fibre glass exterior of the ambulance shown on the material photograph as being higher than the wheel at 11 inches and at a point where behind the fibre glass exterior were stiff structures, namely the steel beam running longitudinally, the outrigger and the floor. The floor was at the same height as the top of the outrigger namely about one foot. His evidence was that the rider would be thrown forwards and he then would impact with the stiff structures of the ambulance. This in turn would provide the hard unyielding surface the impact with which, on Dr Stoodley's evidence, would be the required mechanism for the severity of the head injury found. And as explained, Dr Kendall did not exclude the possibility of a hard impact in this case.
40. Taken in the round, I am satisfied all this evidence leads to the conclusion that it is likely that the head injury was the result of the impact with one or other of the hard structures of the ambulance in the way postulated by Dr Happian-Smith whose evidence I accept. There is in my judgment no other likely explanation. The absence of focal injury to the head is to be explained, as Dr Stoodley suggested, by the wearing of the helmet. The modest damage to the fibreglass is to be explained by the fact that, although as Professor Troutbeck was keen to stress, fibreglass is not robust material when taken on its own, this was not the case here, being at the material point supported by the stiff structure behind it. The fact the ambulance, according to Ms Mudie, only rocked lightly is to be explained by the difference in weight between the outfit and the ambulance striking it and the strength of the ambulance. The lack of damage to the helmet according to the defendant's witnesses ultimately is not on its own a sufficient factor in my judgment to lead me to reject the likely scenario of direct impact which the other evidence so strongly suggests.

Other findings on the likely circumstances of the accident

41. There is, as already indicated, a conflict in the evidence as to what caused the claimant to come off the track. Issues are further raised as to whether the claimant - once he had come off - did brake both wheels and pull in the clutch thus in itself disengaging the engine - all of which in turn would affect the speed at which the claimant would be travelling as the outfit approached the first row of the tyre barrier.
42. I have already rehearsed what is said by those witnesses who actually had some sight of the outfit leaving the track and approaching the barrier. I should record that Mr Greenland, in his scrutineer's report, did record that:

'when the outfit was scrutineered by myself on the morning of Saturday 29^th April 2006 both brakes operated properly and all other controls felt at hand or foot and appeared to operate properly.

Having spoken to one of the riders of the outfit it would appear a fault had developed in the throttle or carburettor to stick open. The carburettor is of the Tilitson butterfly type usually found on chainsaws and large strimmers, it is possible that either cable became jammed or the return spring broke, another possible insight is the location of the engine kill switch which the driver may not have been able to activate whilst still keeping both hands on the bars'

43. The reference to the position of the kill switch on this particular outfit is to the fact it was not on the handlebars but positioned on top of the chassis under the rider's chest in front of the rider. The defendants through their motorcycling expert, Mr Parrish, have contended that it should have been on the handlebars but the evidence of Mr Hales, which I accept, was that he and the claimant took the that view that it was better positioned where it was so that both of them could operate the switch if necessary and Mr Greenland in his witness statement accepts that not everyone fitted a kill switch on the handlebars and such technical regulations as there were did not specify where it should be. Simon Clowes said that it was acceptable to leave the decision on the kill switch position to the competitors. On any view it was not operated on this particular occasion but again the expert evidence is that if the clutch were pulled in, the engine would have been disengaged in any event and would have likely stalled as Mr Hales suggested, and hence if this occurred the absence of the kill switch being operated would have made no difference to the momentum of the outfit.
44. I am quite satisfied that the immediate cause of the outfit leaving the track is that the sidecar passenger, Mr Hales, was for what ever reason not in the correct position for the left bend which meant that at the speed the outfit was travelling, and whatever the precise speed was it is common ground that this left bend was one for the use of full throttle with speeds of up to 50-55mph being feasible, the claimant would have been compelled to leave the track if the outfit were not to overturn. That Mr Hales was not in the correct position is supported not only by the evidence of Mr Wright and Mr Souness but also by that of Mr Simon Clowes, the deputy clerk, albeit again watching from some distance. He spoke of observing the passenger leaning over the motorcycle on the right hand side when he should have been on the left.
45. It is likely in my judgment that the seat of the outfit had become loose and had fallen down causing the passenger to attempt to do something about it but it is likely that this only occurred when the outfit was passing Mr Souness at his Marshall post just before the outfit left the track. In this context it is noteworthy that it is the agreed evidence of the motorcycle experts in their joint report at para 6.4 that the rider would have been aware of the passenger being in the 'wrong' position only 'by the sidecar wheel beginning to lift from the track surface once he (the rider) was on the corner negotiating it'. This evidence I would accept. The evidence of Dr Chinn was that the distance from the likely point where the outfit started to leave the track (the point of departure being marked on one of the photographs by Dr Chinn's cone placed at a site visit and by reference to Mr Hales' estimate of the point of departure) to the first line of tyre was some 25 metres. This again I would accept. Professor Troutbeck's estimate using a different vehicle racing line and using criteria from the FIA based on motor cars (as distinct from motorcycles) was some 43 metres. However this was an estimate of distance, not from the point which I have found is the likely point where the claimant in this case is likely to have realised he could not control the vehicle unless he went straight on, but an estimate for the purposes of objectively assessing the adequacy of the 'run-off area' to the tyre barriers based on the indicated criteria, which is a different issue.

Did the throttle jam?

46. The expert evidence of Dr Happian-Smith was that if the seat did come loose and fall down into the outfit, it was unlikely, absent any sign of any damage to the inner part of the throttle cable, that any pressure was applied to it by the falling seat. However I cannot hide from my mind that the contemporaneous statement made by Mr Hales both as recorded in the transcript and in what was said to the scrutineer was that the throttle was jammed in some way and was stuck 'wide open'. The likelihood is in my judgment that the throttle did become jammed and this may well be because of the falling seat, but this in itself cannot have affected the claimant's initial handling of the outfit as it approached the fateful corner, since it is, as I have said, common ground that it was a full throttle bend. What the effect of it was on the subsequent journey of the outfit to the tyre barriers is a matter to which I must next come.

Did the outfit slow down once it left the track and before the outfit met the tyre barrier?

47. The precise speed at which the outfit left the track must be a matter of conjecture but having regard to the evidence of Messers Hales, Wright and Clowes as to the possible speeds going round the material bend, the likelihood is that it was between 45-50 mph. The defendants invite me to find that based on the perception evidence of both Mr Hales and Mr Souness that the outfit did not slow down, that it cannot have been braked, and that it simply went forward full throttle to the tyre barrier. There is however the oral evidence of Mr Hales that the claimant did apply both brakes, that the wheels locked, and that he pulled in the clutch which the experts all agree would have caused the engine to be disengaged and to stall, and which would have rendered any jamming of the throttle to become irrelevant and would have had no effect upon the speed of the outfit across the grass.
48. There is moreover some objective evidence used by some of the expert witnesses to support the proposition that the outfit was being braked as it went across the grass. There is a single skid mark going across the grass shown in a contemporaneous photograph E35. This Dr Happian–Smith used to reinforce what was expressed in the joint report of himself and Mr Parrish as an agreed opinion, albeit based on the inspection of the vehicle some years after the event:

'7.3 Both the front and rear tyres showed signs of having skidded on a muddy surface, this most probably occurred when the motorcycle was being driven off the track and demonstrated that both brakes were being applied. However it is impossible to say definitely that the condition of the tyres was not affected by the period of time since the incident'

I should record that in oral evidence Mr Parrish said there was no evidence of braking on the grass although he could not explain the material photograph which he said 'mystified' him, save that the claimant may have been doing something else 'I don't know'. Moreover, the joint statement of Dr Chinn and Professor Troutbeck has at paragraph 6.2 the agreed opinion that (the emphasis is the emphasis of the court):

'We agree that Mr Corbett was unable to traverse corner 9 and was forced to depart the track to avoid capsizing the outfit to the right. We agree that when he departed the track the brakes had been applied and both wheels of the motorcycle were locked. … We agree that the vehicle skidded across the grass infield including one tarmac strip and collided in turn with both tyre barriers.'

49. It was also the common view of the experts that one would have expected that any reasonably competent rider would apply the front and rear brakes; the joint statement of Dr Chinn and Professor Troutbeck agreed (para 6.11) that the claimant had time to apply the brakes and disengage the clutch just before the outfit departed the track and Professor Troutbeck agreed that braking the motorcycle would have stalled the engine and no power would be supplied to the rear wheels in that event.
50. Taking all this evidence together I find on the balance of probabilities that although initially the throttle did jam and this will have contributed to an initial maintenance of speed as the outfit left the track, the vehicle did skid across the grass under braking, that both wheels of the motorcycle were locked, the clutch was pulled in, – as Mr Hales said in oral evidence – that the engine must have stalled rendering any jammed throttle as of then of no effect but that, for whatever reason, although the vehicle must have slowed down to some extent as it skidded across the grass – (Professor Troutbeck agreed it must have slowed down as it crossed the grass and any suggestion of it speeding up would have had to have been a matter of perception), it did not slow down sufficiently or in time to enable the claimant to stop on reaching the barriers and hence it went through and collided with the ambulance. I do accept that Mr Hales was on board when the outfit hit the first set of tyres. I just do not know whether he was still on board when the claimant collided with the ambulance but that this does not affect my conclusion that the likelihood is that the impact with the ambulance was at around 15 to 20 mph (within the limits of Professor Troutbeck's T2 figures). It may well be that part of the problem here as regards the maintenance of speed that – apart from the initial effect of the jammed throttle – there was the dampness of the grass spoken of by both Mr Hales and Mr Greenland.

Foreseeability of an outfit coming off the bend and reaching the tyre barrier at speed

51. The defendants have urged upon the court the finding that what happened on this occasion was an unforeseeable event and that the history of the track was such that it just could not have been foreseen that any outfit would have come off the track at the point it did or that if it did would reach the tyre barrier at a speed at which it was unable to stop.
52. I am unable to accept this submission.
53. Certainly there was ample evidence that vehicles might in the course of competition leave the track at any of the fast bends of the track, which included the present. The evidence of Nigel Trickett, a competitor who had been at Rowrah on previous occasions, was that he had seen vehicles come off at all corners of the circuit, there were always incidents though more so with solo cycles and not so much with sidecar outfits. However sidecar outfits would come off. The particular bend was a fast part of the circuit where sidecar outfits as well as solos would slide off and where one ended up depended upon the grip one got when one slid off. He conceded however that although he had seen people go off more than once at this particular bend, more than twice would be guessing. He remembered a few incidents where motorcycles had hit tyres generally although he could not remember any collision with the particular set with which the claimant collided. He said at most meetings there would be an incident of some sort. Douglas Marton, another competitor, spoke of his own experience on one occasion of coming off the circuit on this left hand bend approaching the St Johns Bend at a time when there was protection from a tyre wall though he himself had been able to safely rejoin the circuit after the bend and his outfit had not run into any tyre barrier. He spoke also of an incident, he thought in 2005, when an outfit had penetrated a tyre wall by going under it. Paul Hughes, the Clerk to the Course, conceded that contrary to that which he had originally said, motorcycles had come off at this point (although insisting that there was less risk here than at any other part). Simon Clowes, the Deputy Clerk, agreed that vehicles had left at this bend although he too insisted that he had never known of them ever to hit the tyre walls. Then, by coincidence, on the occasion of the track inspection by Dr Chinn and Mr Happian-Smith, there was in the tyre markings to be seen on the ground evidence of someone having come off, probably a motor cycle, at the very point where (as marked by the cone in the material photograph) the claimant is likely to have departed the track.
54. Equally I cannot accept that it was unforeseeable that an outfit may have left the track at this point because of the passenger getting himself in the wrong position. This must be the very sort of thing which can happen in a race and no one suggested otherwise. It was in my judgment a matter which any reasonably prudent occupier of a circuit or organiser of a race meeting would have to have in mind when considering the safety of the track and that of the competitors, and in so doing it would not be necessary to foresee the precise reason why the passenger had got himself in the wrong position.
55. The argument for the defendants appears to be however that either it was entirely unforeseeable that an outfit coming off the track at this point would head in the direction of the tyre barrier positioned where it was in this case or that if it did it would reach the barrier at speed such that it could not safely halt at the barrier.
56. Again I have found this submission untenable on the evidence before me, and I say this notwithstanding the absence of any evidence of a similar accident, for the following reasons.
57. First the defendants own pleaded defence at paragraph 9(b) is (to repeat what is already set out above) that 'it was indeed foreseeable that a vehicle leaving the track unintentionally at speed "would probably collide with the said barrier" – which is precisely why it was there'.
58. Further, on this issue of whether the outfit would head in the direction of the tyre barrier, I accept the significance of the evidence of Malcolm Fell, the first defendants' Director and President, placed upon it by Mr Glancy. Mr Fell [in support of his somewhat surprising view of the purpose of the tyre wall barrier in the position it was, namely not as a safety measure in order to stop vehicles who had come off the track at speed unintentionally (but see again defence para 9(b)) - or to provide a barrier to protect the ambulance (but see again the pleaded defence in relation to (f), (g) and (j)) - but in order to prevent riders from cheating and crossing over and to this extent to avoid collisions with vehicles further down the track at St Johns], drew lines on a photograph of the likely trajectory of a vehicle on such a manoeuvre, which clearly contemplate that a vehicle would come off the track at the particular point likely in this case and then head for and indeed reach these barriers. In any event that this would be the likely trajectory was clear from the photographs taken in this case and coincides with the impression given by the site visit undertaken by this court at the invitation of the parties. I found the evidence of Professor Troutbeck which was in effect that it would be extremely rare for a vehicle to leave on the necessary trajectory unless the vehicle experienced a complete loss of steering control unconvincing in the light of the overall evidence of the layout of the track.
59. On the issue that it was not foreseeable that an outfit unintentionally leaving the track at speed would be reaching the tyre barrier at any significant speed, the defendants' argument is again in my judgment contrary to the evidence in this case. Paul Hughes, the Course Clerk, sought to persuade the court that it was legitimate to assume that because vehicles in the past had been able to regain the track without hitting the barriers, that it was legitimate to assume that it would always be the case that any vehicle which did reach the barrier would have been able to slow down to such a degree that it would be able to come to a halt without going through them. He was driven to take this stance because of the fact in this case of the presence of the ambulance immediately behind the barrier and to support the defendant's pleaded case that the ambulance was adequately protected. However his evidence that this set up was 'safe' in this way was based only upon a 'visual' assessment of risk and without any measurements or calculations. But we know from even Professor Troutbeck's own calculations that even with full braking and declutching, based on his T2 calculations, any outfit leaving at the point the claimant did, would still be reaching the barrier at a significant speed and certainly not at one which would prevent it from dispersing the tyres and continuing through the barrier to the ambulance on the other side. Moreover Paul Hughes conceded that 'throttles' could and did stick on occasion which in so far as this contributed to the speed in this case, could not render it unforeseeable. That such jamming was a foreseeable event was agreed by the defendant's own expert witness Mr Parrish.

The presence of the ambulance: the adequacy of the barrier

60. None of this would however have mattered in this case if the ambulance had not been where it was. Both Dr Chinn and Professor Troutbeck agreed (joint report at 5.13):

'we agree that the runoff area on the outside of turn 9 would have been found to be acceptable if the circuit was inspected before Mr Corbett's incident and it was believed that the ambulance would be placed away from the circuit as it was at the beginning of the event'

61. On any view, in my judgment, the tyre barrier if it was designed to prevent outfit riders from continuing through and hitting the ambulance at any kind of speed was inadequate for its job as a matter of fact. It is known from the facts that all that happened here was that the outfit dispersed the tyres in all directions and carried on. I have accepted Dr Chinn's evidence based on the Wright and Mellor research that the retardation in speed brought about by the barriers would have been very modest. Indeed it is not without significance that Professor Troutbeck's opinion was that the tyre barrier was not there as a safety precaution at all to protect the ambulance but again – in line with Mr Fell's suggestion – as a deterrent measure to prevent crossovers.
62. In other words if the ambulance were not behind them the barriers could not be said to be unsafe despite the fact they were not bound together, but the fact is the ambulance was behind them.
63. How the ambulance came to be there on the day and whether it had ever been in that position on previous moped motorcycling occasions was a matter of some confusion in the evidence. Mr Fell's evidence was that the ambulance had been in the position it was for many years and no risk had been perceived. Ms Mudie, the ambulance witness who was not called by the defendants, in her statement drew a distinction between karting and motorcycle competitions. She said that for karting events the ambulance would normally be placed on one of the infield roads but that for motor cycle meetings the usual position would have been away from the track up by the holding area; on the day of the claimant's accident her recollection was that the ambulance was originally positioned at the top of the holding area but that she and Mr Fyffe had been asked by Mr Hughes to move it infield as for karting, and; that she had expressed concern about 'moving it to this position for bike events which are a little different from karting events and I felt it was not the safest position for the ambulance for a motor cycle competition', but that Mr Hughes as Clerk to the Course had been keen to have the ambulance moved from the holding bay as bikers were complaining it was taking up too much room in the holding area. Mr Hughes in his evidence agreed that the ambulance would normally be infield for karting events but not for motorcycling events, when pressed he could not remember who initiated the conversation about moving the ambulance but conceded he probably did so but did not think that Ms Mudie had expressed any concern and that his reason for the move was that the ambulance was being blocked by bikers in the holding area. When asked if the ambulance had previously been parked on the service road, he said it had not been in the same place as on the day of the accident and when asked if he had ever seen it so parked previously, he said 'No'. For motorcycling events, he said, the ambulance would normally be parked on the chicane – an area not in competitive use - which he marked on a photograph. Mr Clowes, Deputy Clerk, although claiming to recollect the ambulance being where it was on the day of the accident at an event back in 2003/4 did not remember any discussions about the ambulance or why it had been moved on the day itself and agreed with Mr Hughes that it had been parked in the past on the chicane. Mr Fyffe could remember nothing about any such discussions, nor could he assist on the means of access from the chicane. Mr Trickett said that when the ambulance was parked on the infield this had been the subject of comment to both Mr Hughes and Mr Clowes. The next day after the accident the ambulance was again parked in the same position with the result it was moved to the gateway at the side of the race control building. Since the accident a new ambulance bay has been built up near the holding area.
64. I should add that the witness statement of a Mr Fletcher, another competitor not called by the claimants, was that it was not unusual for the ambulance to be parked where it was on the day and the defendants pray in aid that neither the claimant nor Mr Hales made any protest about the position of the ambulance and signed a competitor signing on sheet saying that they would satisfy themselves before taking part that the venue and track was acceptable to them with regard to its features and physical layout and were satisfied with it.

The MSA licence

65. The defendants also pray in aid that the MSA (the Motor Sports Association) would inspect the circuit and would issue licences. On the plan attached to the licences issued in the years preceding this accident there is marked an ambulance on an infield road with markings indicating some sort of tyre barriers on either side and yet it is said that the MSA issued the licence without comment.

The MSA Inspection of 2002

66. What there is however is evidence that following the inspection in 2002 the MSA wrote through their Mr Symes, Safety and Environmental Executive, to the first defendant, enclosing the inspection report and saying in terms:

'Following Mike Harris's visit a copy of his resultant report is enclosed.

I doubt if there are any surprises and mainly it is a case of paying attention to the tyre barriers. Previous reports following my own visits have highlighted the need to put in a programme of improvement and virtually every meeting Stewards reports note that the tyres need attention.

A high proportion of venues now use a bolted construction technique and many also face tyres with lighter weight conveyor belting. It is a bit of a pain to do this but the dramatic reduction in future maintenance makes it well worth while, plus it improves the presentation of the venue and improves the effectiveness of the barrier in absorbing energy. We clearly do not expect the whole circuit to be instantly rebuilt and favour a phased programme of work.'

Within the enclosed report there is an extract which reads in terms:

'Tyre walls are presently banded and in some areas require attention and have been subject to adverse comments in recent stewards reports. It is suggested that bolted tyre walls are adopted, preferably faced with conveyer belting. This would improve the appearance of the tyre walls, perhaps this could be achieved in a phased rolling update program.'

67. It is of course right to say that this was at best only a recommendation for moving from banded tyre walls to bolted ones, and in terms made no criticism of any tyre barrier in front of any ambulance (if in fact such a layout was indeed before the inspector back in 2002). Mr Fell's evidence was that a phased programme was undertaken by the first defendant to replace track side tyre walls with water filled plastic barriers, but nothing had been done as regards the particular barriers before the date of the accident. Mr Hughes' evidence was that he had been unaware of these recommendations.

Court's conclusions on the positioning of the ambulance and what was to be expected of the defendants; the question of breach of duty

68. My considered conclusion on the evidence is that there was in fact no sensible reason which made it necessary for the ambulance to be moved to where it was, that if access to the track were a problem there were other solutions available which did not involve the obvious risks to the safety of competitors which this position did pose for the reasons I set out below.
69. Whatever be the true reason for the positioning of the ambulance in the infield on the day of the accident, I am satisfied that there was a duty upon any reasonably competent and prudent occupier of the circuit or organiser of the race meeting to assess the risk which that ambulance in that position posed to the competitors. Once it was reasonably foreseeable, as I have found it was, that an outfit might come off the track at the point it did in this case at speed (which is in effect admitted by the pleaded defence) and that it could reach the position of the ambulance still at a significant speed (and this again appears to be the premise of the pleaded defence as to the reason for the presence of the tyre wall immediately in front of the ambulance), then I would agree with the claimant that the defendants' duty of care had to involve either not putting the ambulance there at all or taking all reasonable care to ensure that the tyre barrier or barriers placed in front of the ambulance were sufficient and adequate to prevent the outfit going through the barriers and someone on board coming into collision with the ambulance with the obvious and unacceptable risk of personal injury if that is not prevented. I say obvious because it is difficult to see how in these circumstances it could be otherwise.
70. I am equally satisfied that to discharge that duty that each defendant would have to carry out a proper risk assessment of what was required. As a matter of fact it is known that the barrier was inadequate for the stated purpose and it seems to me that it was not sufficient for either set of defendants to rely simply upon the 'governing bodies'' issuing of licences, in particular that of the MSA, not least because in my judgment the probabilities here are that the positioning of the ambulance on the day of the accident was an unusual feature where motorcycles were involved. The failure by the defendants to call Ms Mudie was significant in my judgment. I agree with Mr Glancy when he says that whatever the true reason for moving the ambulance on the day behind these particular barriers, the defendants' assessment of the foreseeable risks to riders by doing so was 'casual, haphazard, disorganised and uncertain'.
71. The fact is no proper assessment of risk was made in this case.
72. Mr Fell said no independent assessment had been carried out by the first defendant. He relied principally on the licences issued by the MSA, previous site inspections by the MSA and the fact that in his experience there had been no ingress of the particular barriers.
73. I agree with the claimant that Mr Hughes' purported assessment was not one which he was entitled to consider was a sufficient one. It was based on a mere 'visual' assessment. He had no formal or official training in the matter. Late on in the day Mr Geoffrey Douglas of the second defendant produced a risk assessment document said to have been produced by Simon Clowes. There was however no evidence that the document related to the occasion of this accident, but even if it did it could not, from what is on its face, amount to any considered assessment of the risk material to positioning this ambulance in the position it was on the day. Professor Troutbeck himself conceded that any 'risk assessment' would have to involve some kind of calculation and that it would have to be carried out with a view to assessing the likelihood and severity of outcome which would best come from a motoring group.
74. It is true that the HSE Guidance on Health and Safety at motor sports speaks of advices and assistance which governing bodies can be expected to provide but not only do the licences issued expressly state they do not amount to any form of warranty, but there is no reliable evidence that any governing body was asked to consider the safety to competitors riding motor cycle outfits of having the ambulance positioned in the very position in which it was placed on this day. The MSA governed karting not motorcycles.
75. I accept the evidence of Dr Chinn both as to the inadequacy of this particular tyre barrier for preventing the foreseeable risk of competitors leaving the track at speed at the point which the claimant did and colliding with the ambulance, and as to the outcome of any proper risk assessment had it been carried out, namely the inevitable conclusion that this set of tyre barriers were wholly inadequate to prevent an outfit foreseeably reaching it still at speed, from continuing through into the ambulance and exposing anyone on board to an unacceptable risk of serious personal injury. The tyre barrier at the very least needed to be bolted and banded, again for the reasons explained by Dr Chinn. Professor Troutbeck himself accepted that the barrier could not meet the MSA's requirement as regards bolting and banding and it certainly could not meet the more recently published criteria of the CIK circuit regulations involving the need for elements of slowing and stopping – given the foreseeability of a high angle impact as happened in this case.
76. But I accept of course in this context the need to avoid the benefit of hindsight and in so far as any of these regulations were not in place back in 2006 (as in the case of the CIK regs) it would be wrong to criticise the defendants for not following these in particular. However the key to my findings in this case is not a finding of a breach of any particular regulation but rather the failure of the defendants in fact to take on board that that which they concede in para 9(b) of their defence was probable. Once they appreciated that an outfit might foreseeably leave the track unintentionally and at speed and that in these circumstances the outfit would probably collide with the barrier behind which they knew was the ambulance only a matter of feet away, then they became duty bound to take all reasonable care to ensure that the barrier was adequate to prevent any onward collision with the ambulance. As a matter of fact the barrier was inadequate for this purpose and neither set of defendants in my judgment properly applied their minds to whether it was adequate in the light of the conceded probabilities. Had they done so I consider it inevitable for the reasons given by Dr Chinn that it would have become clear that this particular barrier could not be expected to do the required job.
77. A great deal of the way the defence has been conducted in this case has been to try to persuade the court that that which their own defence says was probable was in fact not probable because of the lack of any previous like incident of the tyre barrier being hit. Hence emphasis has been placed on the number of competitive laps which were undertaken in this particular race before the accident occurred, and upon the calculated number of laps on previous occasions over the material previous 7 years, Moped Mayhem having on the evidence been using the circuit for some 6-7 years prior to 2006. In the light of the pleaded case I regard this as an illegitimate exercise.
78. This case has not in fact been about the adequacy of run off areas if a vehicle were to leave the track at speed. It may well be that based on the Bolam test no case can be made out on that particular ground simpliciter. Nor has it turned on whether the defendants had adequate track side tyre walls or their equivalent. Rather it has been about whether the defendants have discharged their admitted duty of care for the safety of competitors when allowing the ambulance to be positioned where it was on the day of the accident. In my judgement for the reasons I have given I am satisfied that the claimants have established that the defendants failed to do so and that their respective breaches of duty have been causative of his injury.

Conclusion: liability

79. For all these reasons I consider that liability has been established in this case against both defendants.

Contributory Negligence

80. The defendants have submitted that in the event of liability being established there should be a substantial discount for contributory negligence 'for reasons relating to the concatenation of events required to bring the accident about'.
81. The pleaded case on contributory negligence is in these terms:

'(i) Failing to ensure that his seat was securely fixed to the machine before the race;

(ii) Causing or permitting the throttle to jam;

(iii) Further or alternatively failing to steer a safe course and maintain control of the machine with the result that it left the track.

(iv) Failed to operate the "kill switch" (fitted to the handle bars) in order to disengage power from the engine.

(v) Failing to fit the kill switch at a point where either the rider or passenger could reach it during a race and in an emergency.

(vi) Failing to secure the seat adequately or at all.

(vii) Failing to ensure that the throttle did not stick despite problems of the throttle sticking over the previous week.

(viii) Failing to ensure that the braking efficiency of the machine was adequate.

(ix) Riding so as to lock the brakes and lose adhesion.

(x) In the premises failing to prepare the machine adequately and to ensure its safety in a race.

(xi)(v) Elected to race notwithstanding the features of the circuit of which he now complains. In the Competitors' Signing on Sheet signed by him earlier on the day of the accident he confirmed that he had satisfied himself that the track was acceptable to him having regard to its features and physical layout.'

82. I consider there is an element of contributory negligence but not to the degree suggested. The claimant cannot be held responsible for the immediate cause of the outfit leaving the track namely, as I have found, his passenger being in the wrong position. He is not vicariously liable for Mr Hales' conduct. I have already accepted on the evidence that the claimant would not have been aware of his passenger being in the wrong position until the sidecar wheel began to lift from the track surface as he was negotiating the corner and at that point in order to prevent the machine overturning he, the claimant, would have had to have straightened the steering to regain control of the sidecar but by the time that happened, that is the sidecar regaining contact with the ground, the outfit would inevitably have already left the track. This sequence of events was supported by the joint expert evidence of the motorcycling experts. I do not in these circumstances consider that the claimant can be criticised for the way he steered the outfit albeit it meant that he left the track.
83. Nor do I consider there can be any substance in the allegation that there was a failure to ensure braking efficiency. Notwithstanding Mr Wright's allegation that Mr Hales had been reporting a problem with the brakes there was in fact no evidence that there was anything wrong with either of the outfit's brakes. The scrutineer, Mr Greenland, reports that he had found both brakes were operating properly when scrutinised by him on the morning before the race began albeit he did not actually ride the bike. Mr Greenland in his witness statement agreed with by Mr Clowes in his evidence, painted a picture of the claimant being a careful responsible person who prepared his machine in a proper and careful manner and the outfit which had been scrutineered for some years had always been found to be well prepared and one of the better prepared machines. None of the experts who examined the outfit's brakes, albeit some time after the accident, found any evidence of inefficiency. I do not in these circumstances consider that Mr Wright's evidence on the reporting of brake problems to be credible not least because of the lateness of his making the allegation in a witness statement made long after the event.
84. Nor is there anything in my judgment in the allegation about allowing the brakes to lock. I have accepted the evidence that the claimant did apply his brakes at least when he left the track but no one suggested that this was other than what one would expect and that the locking effect was a natural consequence of the braking and the engine stalling. There is no evidence of any lack of adhesion on the track.
85. I have accepted the throttle is likely to have become jammed for some reason or another but the failure to operate the kill switch can have had little or no causative effect on the forward momentum of the outfit given, I have accepted, that it is likely the brakes were applied, the clutch pulled in and that the engine stalled. I accept that I have found that the throttle jamming may have had an initial effect on the maintenance of the outfit's speed which may be said to have a bearing on the failure to apply the kill switch and the fact that the switch was in a position on the chassis (as opposed to the handlebars) which meant it was difficult to get to in the circumstances of the emergency which confronted the claimant and Mr Hales. There is the evidence of Mr Greenland that he had asked for the position of the kill switch to be changed. On the other hand the evidence is that the regulations were silent on the matter and Mr Clowes accepted that it was left to those who built the machines to determine where best to place the switch. Mr Hales explained that in their case it was in a position where both could get to it if necessary and it must be remembered that Mr Greenland passed the machine as fit to race. In all these circumstances if there is to be any contributory negligence in relation to the kill switch it must be marginal.
86. I take a similar view on the jamming of the throttle. I have found it occurred but for the reasons already given in relation to the kill switch it can have had little causative effect on the happening of the accident. In any event the reason for it jamming is not clear. It may or may not have been to do with the falling seat but there is no real evidence that the claimant himself caused or permitted the throttle to jam. The expert evidence was that this was something which could happen without anyone being at fault. The overall evidence that the claimant was a careful preparer of his machine must be relevant here as is Mr Greenland's finding that all the controls operated properly. My observation on the lack of credibility of Mr Wright's evidence applies equally here.
87. My only real concern has been as to the insecurity of the seat. I have found it is likely the seat did fall causing Mr Hales to be out of position, albeit all this happened only on the corner itself, in attempting to do something about it and of course it was this change of position which caused the claimant to leave the track. Mr Hales' evidence was that the claimant had been dealing with the seat earlier on in the race. All this suggests it was loose to a degree before the race began albeit it may well be it was made worse by the vibration during the race. I accept Mr Hales' evidence that the seat was bolted on and not tied. Nonetheless I consider there is a basis for a small degree of contributory negligence in not tightening the seat sufficiently before the race began but that degree must be a small one since the falling seat, on my findings, was not itself the reason why the outfit left the track or continued on to the ambulance. At most it goes to explain why Mr Hales, for whose conduct the claimant cannot be held liable, got himself out of position.
88. In the round I assess contributory negligence at 10%.
89. I should make clear I can find no such contribution in the allegation in (ix). Although the claimant did sign the competitors signing on sheet in the terms set out this could be neither volenti (not pleaded) nor contributory negligence. Even if the claimant had noticed the position of the ambulance at the time of the practice session – contrary to Mr Hales' position – I do not consider it was for him to assess the adequacy of the tyre barrier. He was entitled to assume that steps would have been taken by those in charge of safety at the circuit to see that the circuit was reasonably safe and in particular would have taken reasonable care to provide appropriate barriers. The positioning of the ambulance in the way it was on this occasion and the inadequacy of the barriers giving rise to what in my judgment was an unnecessary and unacceptable risk of personal injury cannot be characterised as one of those risks inherently involved in motor racing.

Final conclusion

90. Accordingly my conclusion is that the claimant is entitled to judgment against both defendants for 90% of damages to be assessed but I will invite submissions from the parties on the handing down of this judgment of the terms of order to be made.