Case No: B3/2009/2546
IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM QUEEN’S BENCH DIVISION
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE WARD
LORD JUSTICE JACOB
and
LORD JUSTICE ETHERTON
Between :
|
MALCOLM WILLIAM GREEN |
Appellant |
|
- and - |
|
|
(1) SUNSET & VINE PRODUCTIONS LIMITED (2) THE BRITISH AUTOMOBILE RACING CLUB LIMITED |
Respondent |
Mr Jeremy Nicholson Q.C. and Mr Oliver Ticciati (instructed by Wilmot & Co) for the Appellant
Mr Martin Porter Q.C. and Mr Bruce Gardiner (instructed by Kennedys) for the First Respondent
Mr Anthony Barker Q.C. and Mr Malcolm Duthie (instructed by Paris & Co) for the Second Respondent
Hearing dates: 16th and 17th November 2010
Judgment
LORD JUSTICE ETHERTON:
This appeal concerns liability for an accident in which the Appellant, Malcolm William Green (“Mr Green”), while driving a 1948 Maserati at the Goodwood racing circuit in September 2005, suffered serious injuries. The appeal is from the order of Ouseley J on 4 November 2009, by which he dismissed the Appellant’s claim against all three defendants, Sunset & Vine Productions Limited (“Sunset”), the British Automobile Racing Club Limited (“BARC”) and Goodwood Road Racing Company Limited (“Goodwood”). Only Sunset and BARC are respondents to this appeal.
The factual background
The Judge conveniently and helpfully summarised the factual context of the dispute in the Introduction to his 111 page judgment. I gratefully reproduce the following passages from that Introduction:
“1. Willie Green is a well known and very experienced driver of historic racing cars. He drove a 1948 Maserati 4 CLT, 1492cc, belonging to Ian Wade, in the Goodwood Trophy race at the Goodwood Revival meeting on 17 September 2005, a Saturday. As he entered Woodcote Corner on probably his third lap, Willie Green chose a line to be in a better position to overtake the car in front as the Corner ended. Woodcote Corner is a double apex right hand bend. At the second apex, he drove the right hand side wheels of the car across the kerb stones on to the grass on the inside of the bend, at about 85 mph. But when the Maserati crossed back on to the track, it did not continue round the bend. Instead, it drove across the track, still pointing in the direction of travel, to the outside of the unfolding bend. It then clipped the gravel trap on the outside of the bend, continued along the grass verge on the left hand side of the short straight, and hit the tyre wall at the back edge of the verge, as the wall curved back towards the track at the entry to the chicane. The car spun around. Willie Green was flung out on to the track, where the car then ran over his legs, just before it came to a stop. He suffered quite severe leg injuries. He has made a remarkable recovery for a man aged 62 at the time, and is driving ordinary and classic cars again. The Maserati was seriously damaged, but has been repaired. What caused the car to cross the track and hit the wall is at the heart of this case.
2. Goodwood Road Racing Company Ltd, Goodwood for short, is one of the group of companies which undertakes the various activities at the Goodwood Estate near Chichester. It owns and operates the motor racing circuit. The circuit was used from 1948 to 1966, and remains one of the most historic and famous circuits in the world. It was revived in 1998 for use by historic racing vehicles in the three day Goodwood Revival meeting, which recreates the atmosphere and style of Goodwood’s earlier racing days.
3. Goodwood is the promoter of the Revival meeting, but the races must be organised by an automobile club. It has chosen as its organiser the British Automobile Racing Club, BARC, with which it has had a long-standing relationship. The Earl of March, whose family controls the Goodwood companies and for some generations has had an interest in motor racing, is the President and titular head of BARC. BARC had been running all motor racing at Goodwood since 1948. The Clerk of the Course, Observers and Marshals, come under the aegis of BARC which is responsible for directing the actual racing. Once the Revival meeting begins, broadly speaking, responsibility for the track, its immediate environs and indeed the area within the spectator barrier, passes from Goodwood to BARC.
4. BARC is affiliated to the Royal Automobile Club Motor Sports Association, MSA. The circuit was licensed by the MSA, as a permanent racing venue; alterations require MSA approval. The Revival meeting also requires an Event Permit issued by the MSA. The MSA is the UK body on to which the Federation Internationale de l’Automobile, FIA, has devolved its various functions. The MSA provides the Steward of the Course for the races, to ensure compliance with the MSA Regulations published in the Competitors’ Yearbook, known as the “Blue Book”. Although Goodwood, BARC have a strong interest in the safety of the events, it is to the MSA that both must ultimately defer on safety issues. The MSA also trains and licenses officials and marshals, and licenses competitors.
5. Sunset & Vine Productions Ltd had a contract with Goodwood to produce outside broadcasts for the Revival meeting, showing what was happening during racing on the large outdoor screens around the course. It was also to produce a highlights programme to be broadcast on ITV. Among the cameras it used for these purposes was what is variously known as a kerb cam, a road cam, a puddle cam or even a “whoosh” cam. I shall call it a kerb cam. It takes very wide angle but close up road level shots of passing cars and their wheels. One was placed on the grass just on the inside of the second apex of Woodcote Corner.
6. Mr Green says that the Maserati’s right hand side wheels hit this camera and it was that impact which caused the car to veer off left, after which there was nothing he could do to stop the crash. He had been racing in a perfectly proper manner. Sunset & Vine was negligent in placing it there or placing it there in an insecure manner.
7. Sunset & Vine contends that such contact as there was between the Maserati and the kerb cam did not cause the accident. It supports the case for Goodwood and BARC that this was caused by Willie Green driving too fast around the corner, losing control as his off or right hand side wheels used the verge and crossed over the kerb, back on to the track. His own negligence, alternatively, contributed to the accident. The camera was approved by type and location by Goodwood, and by BARC or MSA or both; its positioning involved no negligence by it or by others. But, to the extent that it is liable to Mr Green, it seeks a contribution from Goodwood and BARC, because they too were negligent. It also seeks an indemnity from Goodwood under the terms of its contract with Goodwood.
8. Sunset & Vine joined Goodwood in Part 20 proceedings. This led Mr Green as claimant to join them as defendants on the basis that each defendant knew or ought to have known of the placing of the kerb cam at Woodcote Corner, knew that it was likely to be overrun there and that that was a dangerous position or manner in which to place a kerb cam.
9. BARC and Goodwood agree with Sunset & Vine that contact between the Maserati and the kerb cam did not cause the accident. That was caused by the way Willie Green was driving, or at least he contributed to the accident by his own negligence. And they agree with Sunset & Vine that the kerb cam was not dangerous there, and created no undue hazard. But if that is wrong, they contend that Sunset & Vine placed the kerb camera where and in the manner it did, without the required approval of Goodwood, BARC and the MSA; and did so negligently causing the accident. Goodwood also seeks an indemnity from Sunset & Vine under the terms of its contract. The terms of the contract are at issue between Sunset & Vine and Goodwood.
10. I am only concerned with liability.”
The Trial
The trial lasted some three weeks. There were numerous witnesses of fact and several expert witnesses. The expert witnesses included Mr Hamish Munro, who was Mr Green’s accident reconstruction expert, and Mr Andrew Laws, a photographic imagery expert for Goodwood and BARC.
The Judgment
As I have said the Judge’s judgment was 111 pages, comprising 468 paragraphs. It is a meticulous and consciencious appraisal of the facts and the evidence.
The Judge described the kerb cam as follows:
“19. The camera itself is a “lipstick” camera, which adequately describes the shape and size of the camera without the casing. This particular camera was encased in acetal, a dense hard plastic, to protect it; the sides of the casing are chamfered so that cars can ride over it. It is 38mm, about 1 ½ inches, high with a circular base 128mm, or about 5 inches, in diameter. The chamfered sides rise from about ½ inch above the base to the flat top at about 45 degrees, with the lens set back a little from the front of the base. There are holes in the base which can be used to bolt the camera to the ground. The whole resembles a large cat’s eye, but it is rigid and black. It weighs 500g or just over 1 lb. The kerb cam lens remains in one position, and the view it films cannot change unless the position of the kerb cam itself is changed.
20. The camera cable is clamped into the structure, and is laid from the camera, with connecting cable if necessary, back to a battery point, which here was some metres back from the track. The pictures are transmitted by further cable from the battery point to the outside broadcast producer’s van, which here was about two hundred metres away. The director would decide which pictures to broadcast on to the large outdoor screens from the array of cameras monitored from the van. ….
The Judge found ([25]) that the kerb cam was positioned on the verge, very close to the back of the kerb. He described the installation of the kerb cam as follows:
“33. … The camera itself was simply placed on the ground and was not bolted or staked to it or dug in. There were operational reasons why it could not be dug into the ground there: it would not have taken any useful pictures. There was nothing to bolt it to. There was a risk … that any stakes would fly out and become a hazard if a car ran over the camera. …vehicles might run across the camera.”
The ground on which the camera was placed was grass covered by pastic mesh. The Judge found ([55)]) that on the Saturday morning, before the racing began, the kerb cam was, at best, no more than lightly and ineffectually held by the mesh; at most, it was sufficiently held to prevent tripping.
The Judge accepted ([56] and [57]) that Mr Green was a highly experienced racing driver, who was very familiar with driving historic racing cars and with driving Maseratis 4CLTs, including the particular car damaged in this accident; he was completely familiar with the Goodwood racing circuit and Woodcote Corner; he had participated in some 1500 events around the world, had raced at Goodwood at every meeting there since the track re-opened in 1998 and had instructed pupils over hundreds of laps there, and had driven around Woodcote corner at racing speed about a thousand times.
The Judge undertook a lengthy and very detailed examination of the evidence relating to the occurrence of the accidence. In addition to the evidence of Mr Green, he summarised the evidence of several witnesses of fact and photographic evidence. Photographic evidence of particular significance was video footage taken by two spectators, Mr Bloxham and Mr Sexton.
The Judge described Mr Laws as follows:
“77. The most valuable analysis of the DVD images was by Mr Laws, for Goodwood/BARC. He is a forensic imagery interpreter, and managing director of Kalagate Imagery Bureau. He has practised as an expert witness in the interpretation of many different types of images since 2001 in criminal and civil cases. His evidence is supported usually by specialist techniques such as photogrammetry. Before that, he served in the RAF as a specialist imagery interpretation officer, a task which involved a senior role in target selection. He is appropriately registered with expert witness bodies.”
The Judge described Mr Munro as follows:
“87. He is a very experienced mechanical engineer, who has worked on both aviation and motor racing engines, from Formula 1 to historic racing cars. He has had particular experience in the design of engines and parts, including the design and engineering of parts. He was nowhere near as experienced or expert as Mr Laws in the interpretation of photographs.”
The critical part of Mr Munro’s evidence, as summarised by the Judge, was as follows:
“92. By photograph 4/524, the rear right wheel has gone past the camera which can be seen in the shadow behind it, just before the nose passes the marker post. The bottom of the car number “22” on its rear side just behind the driver’s cockpit is more visible as the body of the car rises. This was caused by the car steering less to the right, as a consequence of going over the camera with the right rear wheel. This has shot the rear right wheel into the air by at least 6 inches and the rear left wheel into the air by at least 2 inches and the body by between 3-4 inches. Photograph 4/524 shows the position just before the Bloxham photograph 2/334, as the camera is all in the shade. This is where Mr Gallagher described the leap sideways. The car itself is in the air pivoting on the left front wheel, with the right hand side still over the grass but probably not touching it. In photograph 2/334, there is no shadow under the right front wheel, and there was no sign of tyre deformation in the right rear wheel as there would be were it touching the kerbstone. This rise was not caused by crossing the kerb stone, which would create only a small bump. The leftward movement of the car has caused the right side tyres to lose adhesion. There is a visible loss of adhesion by the left rear tyre as well.”
The Judge rejected Mr Munro’s evidence. The Judge said:
“95. I do not accept Mr Munro’s analysis of the extent of the elevation of the wheels, because I reject his interpretation of the photographs. I prefer the contrary evidence of Mr Laws on the measurements: he is much the more expert photographic measurer. He alone had the expertise to measure the rise and fall of the wheels from the better quality DVD stills. So I accept that the car crossed the kerb on to the grass as he says, that as the front right wheel passed where the camera was, it was raised by about 2 inches relative to the car’s body, that the car body only rose in the vicinity of the camera’s original position and did so by no more than about 2 inches, that the rear right wheel was in no more than slight contact with the ground just as it crossed back over the kerb, but the whole car had settled back on to the ground with only residual rear elevation as the nose passed the marker post. I also accept that there is no imagery evidence that the rear left wheel ever left significant contact with the surface. Mr Munro’s interpretations differed more in the degree of movement he ascribed to the rear wheels, and to the right rear in particular and to the movement of the body, than they did in the fact or sequence of movements. However, it is the detail and degree which matter. There is no photogrammetric support for Mr Munro’s view that the rear right wheel rose 6 inches or that the rear of the body was elevated by 3 to 4 inches.”
96. This does not mean that the rear right wheel did not hit the camera. Both are interpreting measurements from the photographs to reach their conclusions. But there is nothing in the measurements which I accept, to support Mr Munro’s view that vertical movement of the wheels shows that it did, or did with the effect he ascribed to it. Mr Ticciati suggested that the degree of rise in the body was disguised by the jump sideways described by Mr Gallagher. I do not think he was describing a lateral movement in the way necessary for broadside angles to be affected, and it would be marginal at best to these issues.
The Judge summarised as follows Mr Munro’s analysis as to the cause of the accident, so far as relevant to this appeal:
“97. Mr Munro is not a member of any association of accident reconstruction experts and had not done a similar case in the last 3 years, nor did he claim to practise in the area of accident reconstruction. But his Formula 1 experience had included working out what had gone wrong on the tracks. He would also be looking at tracks to see why parts failure had occurred. His theory was this. Both right hand side wheels went over the kerb cam in quick succession. The rear wheel hit the kerb cam at 85 mph, just 0.066 seconds after the front wheel hit it, raising the rear wheel 5-6 inches off the ground. The stiffness of the suspension would have raised the left wheel 2-3 inches off the ground. The vertical speed would have been 20-27 mph. With the front wheel also off the ground, the car’s weight would have pivoted on the left front wheel, turning the car sharply to the left uncontrollably. The outward drift of the rear of the car induced by use of the throttle to take the front of the car around the corner would have been wholly eliminated. His theory did not depend on whether the cable was fixed or not.
98. On Mr Munro’s analysis, for the effects he observed to occur, the kerb cam must have become fixed so as to act as a lever just before or through the effect of the rear wheel making contact with it. When the front wheel hit the kerb cam, it would have pushed it forward but not by much and then would have thrown it back as it rolled over it, probably moving it parallel to the kerb or slightly infield, rather than significantly sideways, as Mr Symes for Goodwood and BARC was to contend. As the kerb cam was tumbling through the air or along the ground after the front wheel hit it, it would have got caught in one of the larger cracks or notches in the rear of the kerb stones, where bits had been eroded or crumbled away, or it could have caught in the plastic mesh. The kerb cam had then been gripped between the rear right tyre, which had sufficient tread, and the kerb stone or mesh, turning the kerb cam into a lever. The mesh, even though relatively springy, would be sufficiently firm to act as the base for the lever; the kerb stone even more so. (The rough edges of the back or top of the kerb stones can be seen in photographs 2/340A and 2/387A.) If hit on the infield side the kerb cam would have been spat out on the track side.
99. If the rear wheel had hit it when it was upright or nearly upright, at more than about 60 degrees to the ground in such a spot, and had caused the kerb cam to become fixed or wedged in that position even for a fraction of a second, the kerb cam would then have created a straight load path between the tyre and the ground, levering the car into the air. The load path from tyre through kerb cam to the ground would cause the wheel to climb up unless the kerb cam, or another part of the load path, had slipped away. This straight load path might only last a fraction of a second but that would be long enough to launch the car into the air at a vertical speed of 20-27 mph. This would then cause the kerb cam to be fired out behind the car, and on to the track. The rear wheels were under power unlike the front wheels. The kerb cam could not have been on grass without mesh for this to happen; and it did not happen on the track or sloping face of the kerb stones.
100. It did not matter whether the rear wheel had hit the kerb cam on its base, top, chamfered sides or on its rounded edge. The part hit had to be upright or nearly so, at 60 degrees or more, or else the wheel would have flattened it back to the ground. Nor could it have been at 60 or more degrees to the ground but tilting away from the oncoming wheel, since it would simply have been knocked to the ground forwards. The wheel running over it when flat on the ground would not have caused the uncontrollable leftward movement. The kerb cam would have had to become fixed nearly upright when hit or else it would not have acted as a lever, raising the wheels off the ground. It would instead have simply been knocked back and run over flat.
101. In cross-examination by Mr Barker QC for Goodwood and BARC, Mr Munro said that it was fairly unfortunate for this to happen, because the car had to hit the kerb cam at just the wrong angle. He had conducted no tests to try to replicate what he said had happened; he could try for 50 years and not manage to get all of the parameters right, and he could also create a worse accident. He would have to throw the kerb cam at the wheel at just the right angle in just the right place, to reproduce the effect of the front right wheel hitting the camera and sending it tumbling backwards. It then had to become fixed for a fraction of a second so as to present a straight load path from tyre through kerb cam to ground. But although he could not replicate what had happened, and there was a degree of speculation in what he said, something of the sort which he had described must have happened in order for the car to have been affected in the way it was.
102. The parameters were precise camera location at Woodcote Corner, tyres and pressure, speed, angle of impact, kerb of sufficient unevenness, ground resistance and so on; there were too many variables which would have to be correct for the accident to be replicated. It was not possible to calculate the parameters either. The parameters were dynamic and not static which made it even more difficult to reproduce the ones which had combined to cause the accident. Mr Munro did agree however that it would have been possible to test whether the passage of the front wheel would have caused the kerb cam to rise in the air.
103. Mr Munro said that it did not matter whereabouts the kerb cam had been hit. If even one variable were changed, the accident would not have happened in that location. Although the precise combination of variables would change with each precise location or angle of strike, and each combination would therefore be unique, there were several unique combinations which would produce the same effect on the car. It would be possible to drive around the circuit using the verge many times without anything going wrong. The right chain of events would be necessary but Mr Munro was of the view that an accident was readily foreseeable, although the camera would have been crossed many times without an accident, and wheels would usually have met it flat and just pushed it down.”
“109. Mr Munro concluded that the only probable explanation for the accident at the tyre barrier was that the car had hit the kerb cam with both right side wheels in the sequence of events he described. It would not have been caused by an excessive entry speed into the corner because the car could not have got round the first apex without going to the gravel trap. The kerb itself could not have caused the accident, or more than a little bump.”
The reconstruction experts for Goodwood and BARC were Mr Symes, the MSA Technical Director, and Dr Searle, an experienced chartered engineer who had worked for 25 years at the Motor Industry Research Association and who, at the date of the trial, was running his own accident reconstruction consultancy.
Mr Symes and Dr Searle rejected Mr Munro’s views. The Judge summarised Dr Searle’s view of Mr Munro’s theory as follows:
“127. He regarded Mr Munro’s theory as requiring fantastic coincidences given the parameters which all had to combine: the camera at the correct upward angle in relation to the oncoming rear tyre, at the correct angle in plan so as not to be pushed out of the way, the camera had to be at the right height above ground, it had to be in the right place on the ground to find the notch which would hold it, and the top edge of the camera had to be in the groove of the tread. Even if it did hit it perfectly, the strut would be pushed away by the wheel and the perfect scenario would cease to exist. The 5 ½ cm hexagons of the mesh were not large enough to provide a wedge for the camera, and if the bottom of the camera were in a place with any give it would just fall over. The mesh could not do that. If the forces of several tonnes which Mr Munro envisaged were created to eject the car into the air, that same force would simply cause the walls of the mesh to collapse.”
The Judge’s analysis, in the light of all the evidence, was as follows, so far as relevant to this appeal:
“133. I have already set out my conclusions on the photographic measurements, though I reached them having considered all the accident related evidence. Mr Munro’s analysis of how the accident happened is wholly improbable and I am wholly unpersuaded that what he said happened to the right side wheels of the Maserati and kerb cam was more probably than not what happened.
134. It required an unlikely combination of circumstances to have occurred, even on his evidence: the moving kerb cam had to be hit at just the right angle with part of it becoming wedged within a tiny fraction of a second. Even though a number of combinations could each have produced the straight path required to create the lever he postulated, it remained a very unlikely event. The precise combination of parameters could not be replicated or calculated. No drawing was produced to illustrate the size of notch or gap into which some part of the kerb cam would have had to be wedged to produce the effect he referred to. Such photographs as there were of the back of the kerbstones and mesh did not show in my view any into which any part of the kerb cam could have become wedged even for a fraction of a second. I do not see how the mesh would have provided such a hold.
135. It is far more probable that, if the right rear wheel hit the kerb cam, it did so when it was flat on the ground. If it did so when the kerb cam base or top was at some angle to the ground, the wheel simply flattened it on to its base or top as it hit it, or knocked it sideways and flat if it had been on edge to any degree. I accept what Mr Symes and Dr Searle said about this.
136. Mr Munro’s calculations, in addition, while perfectly correct in themselves and unfairly scoffed at by Mr Symes and Dr Searle, who had failed to read or understood the textual qualifications he had properly set out, nonetheless cannot support his theory. Assuming the ground to be firm, which may be largely true of the mesh but not of any parts of the grass verge behind the curving kerb which the straight edged mesh could not reach, the calculations admittedly could not take account of the effect of the Maserati’s suspension, stiff though it may have been, nor of the tyre pressure. Textual acknowledgment of this deficiency and a rough estimate of a reduction in vertical acceleration to allow for it, is an unsatisfactory basis for allowing for two such important factors. Again some tests with similar cars might have helped. Only Dr Searle gave evidence of any test, and though I accept that a Fiat Uno and a Maserati differ in certain respects, there were enough parallels on tyre pressures and suspensions for his test to cast real doubts over Mr Munro’s rough allowance.
137. Mr Munro sought to refute opposition to his theory by contending that some explanation had to be found for the behaviour of the Maserati, and this was the only one which could do that. He supported that with calculations of how it could have happened. If the evidence of Mr Green and the eye witnesses, together with his interpretations of the Sexton DVD, represented an accurate account of what happened at the kerb, there may be more to what he says. He is in my judgment however seeking an explanation for something which did not happen in the way he thought it did.
138. His interpretation of the rising and falling of the right hand side wheels as seen on the Sexton DVD is unsound and for the reasons I have given I prefer that of Mr Laws. There is therefore no objectively measurable support for the degree of elevation of the car which his calculations sought to explain. I do not accept that the 2 inch rise in the body at Mr Laws’ image 23 when the rear wheel is in the close vicinity of the kerb cam and kerb crossing means that the whole travel of the suspension of the rear right wheel has been absorbed and that the rear wheel has gone 6 inches into the air.
139. The Sexton DVD, as analysed by Mr Laws whose evidence in this respect I accept entirely, shows that there was no sudden leap sideways, nor did the car do any sudden jump as dramatic as that described by Mr Sexton. Mr Laws fairly accepted that eye witnesses have advantages in certain respects over a film, as do I, but the degree of vertical movement is measurable and has to be given weight over the dramatic jolt they described.
140. Nonetheless, in my judgment, it is more probable than not that the rear wheel did hit the kerb cam, though with much less dramatic effect than Mr Munro assumed and sought to explain.”
“148. Accordingly, I conclude that it is more probable than not that both right hand side wheels hit the camera. As I conclude that it was impact with the rear wheel and not with the front which caused the camera to be spat out across the track, and I have no specific evidence that the rear wheel followed a different track, the front wheel must have moved the camera to a limited extent and the rear wheel must have hit it on the side, with what Mr Ticciati described as the “tiddly wink effect”, rather than running over the whole camera. If the rear wheel did follow even a marginally different alignment, the camera could have been hit in its side and spat out, after the front wheel had run over it without disturbing it at all. This reduced the impact on the car which hitting the kerb cam could have had.
149. Although the Maserati hit the kerb cam with both right hand side wheels, the effect was not of itself significant. I have rejected the evidence of a dramatic jolt and Mr Munro’s theory of how the dramatic jolt must have occurred. No other mechanism for attributing a dramatic effect to the passage of the car wheels over the camera was identified. If the wheels hit the camera when it was flat on the ground, whether over the top and side or just the side, or even on the edge, the effect would not have been dramatic. Even on Mr Munro’s and Mr Green’s evidence, any effect would have been controllable by itself. The jolt, however described, was predominantly caused by the passage of the car coming back over the kerb stones.”
The Judge accepted the alternative theory of Mr Symes, Dr Searle and others that the accident was caused by Mr Green driving too fast for the line he took, crossing the kerb and unsettling the car in the process. The Judge described as follows the manoeuvre which Mr Green was trying to execute:
“154. The manoeuvre which Mr Green was trying to execute involved overtaking a powerful car but one which he thought was being driven rather poorly. He was catching up, and doing so faster than he thought, by 7-8 mph rather than 2-3 mph, as they entered Woodcote Corner. He was about a length or so behind at the start of the second apex, and was going to overtake on the inside of the bend rather than swinging wide, so as to force the Kieft to give way before they entered the chicane which is not long after the end of the Corner. He needed to be two lengths ahead by the chicane. Mr Green was focusing on this manoeuvre, in my view, and drove at the speed which would enable him to achieve it, entering the second apex at 85 mph. ”
The Judge’s conclusion on the evidence ([161]) was that Mr Green did, and in fact had to, make a sharper turn at the second apex than the conventional line or the preferred line or the line which Mr Green said he did and intended to take. The Judge concluded that Mr Green’s recollection of his driving was faulty. In the light of all the evidence, both factual and expert, the Judge accepted the explanation of Mr Symes and Dr Searle that Mr Green had simply been cornering too fast for the line he had taken. He said:
“194. I have concluded that what probably caused the car to do what it did was a combination of its speed and the line it took through the second apex in order to overtake the car in front, and the unsettling effect of crossing back over the reverse of the kerb and down the slope. This unsettling effect was aggravated to a modest extent by the effect of the right hand side wheels hitting the kerb cam just before or at the same time as each crossed back over the kerb. The weight of the car would have been more on the left hand side wheels as it went round the right hand bend, and the unsettling effect of the car passing back over the kerb would have decreased the extent to which the right hand side wheels were still bearing the weight of the car, and maintaining its line through friction between tyre and track. The front left wheel was also toeing out which would have helped direct the car to the left. The long rods and linkages between wheels and steering wheel would have made it more difficult to control the car in the very short space of time once something had started to go seriously wrong with its direction. ”
“199. Mr Green said that he had driven over this kerb many times without accident and had not experienced the jolt which he did on this occasion, and therefore it could not have been coincidence that the one time he had an accident there was the one time there was a camera there. For that reason he regarded the camera as the sole or chief cause of the Maserati crossing the track. He pointed also to the way in which the eye witnesses had described the jolt as something different from what would be associated with crossing back over the kerb.
200. I do not think that it was entirely coincidence that the car did what it did on this first occasion when the camera was there, but I think that it played quite a modest contributory part. I am not in a position to judge the way in which Mr Green drove on all those other occasions at Woodcote Corner or what overtaking manoeuvres if any he had been attempting there. I also note from the evidence about what happened to the camera on Friday and Saturday that other drivers crossed the verge where the camera was and hit it without mishap. They were in a variety of different cars. I would find it surprising if the only cars which ran over the verge which then hit the camera were those which caused it to be displaced on to the track. I accept Dr Searle’s evidence that its contribution would have been less than that of the kerb. This is not a case in which causation can be found on the basis that “but for” one or other factor, the car would not have crossed the track as it did. A number of factors came together. I have also considered the evidence of Mr Munro, and Mr Marriott, a camera expert for the claimant, which offers a strong opinion as to the negligence of Sunset & Vine in putting the kerb cam where it did because of the risks it created of a serious accident. But this is considerably overstated and does not alter my conclusion about which factors were important for this accident. The kerb cam was not an important factor.
201. I find nothing surprising in the fact that an experienced, skilled, determined and highly competitive racing driver, undertaking a more risky manoeuvre to gain a competitive advantage at a particular point over someone whom he regarded as less able and who was holding him up with his perceived erratic driving, should make an error of judgement. The coincidence of the presence of the camera is no more than a minor factor in the accident. Commonsense, upon which Mr Ticciati relies, does not assist him here.”
“204. This does involve the conclusion that Mr Green’s driving was the principal cause of the accident. It was his error of judgment which led to him taking the line he did, crossing on to the verge and back again unsettling the car at the speed he did, in pursuit of his chosen manoeuvre at that very spot. He is largely to blame for his own misfortune.”
“207. I also think that part of Mr Green’s attitude to it as now expressed in court comes from the view, which he has now come to hold, that the kerb cam is solely to blame for causing the accident, and he is not to blame at all. That is not the view I hold. Mr Green’s concern was also about the possibility of a hard object weighing 1lb getting on to the track as a result of vehicle movement over it. That concern would not, in my view, have affected either his willingness to race or his willingness to drive over it.”
The Judge said ([231]) that the conclusions to which he had come “on the minor contributory role which the presence of the kerb cam played in destabilising the Maserati and leading to the accident”, and the major role played by Mr Green’s driving, did not preclude negligence by any of the Defendants also contributing causally to the accident.
As regards Sunset, Mr Green’s case was that Sunset was negligent in installing the kerb cam where it knew or ought to have realised a racing car would run over it, in failing to install it so that it was secured and could not move, and in failing to warn drivers of its presence. The Judge found ([235]) that neither the use, location nor manner of installation of the kerb cam was ever approved by the MSA: its approval was not sought by Goodwood or BARC or Sunset.
The Judge held [237] that there was no negligence on the part of Sunset in not seeking the approvals directly from BARC or MSA. Goodwood, BARC and the MSA did not expect or require the TV companies themselves to make the requests to the MSA or BARC for approvals of camera positions: [236]. The Judge concluded that Sunset did not in fact have any official approval as to the placing of the kerb cam and, for that reason, it was negligent. He said:
“335. As in fact Sunset & Vine did not have the approval of the MSA or BARC, had it been appropriate, it was negligent to place the kerb cam where and how it did, even if approval would have been granted to what it did. It is plain that, however experienced Sunset & Vine, or Visions/Arena, may be in the use or installation of cameras at race tracks, the particular way in which the circuit is raced, the responses of cars to contact with cameras, and driver expectation, meant that it was negligent to install what should have been, and was seen, as a potential hazard where it might be run over, without official approval. The fact, as I accept, that Sunset & Vine genuinely thought that it had that approval cannot affect that outcome. It should have been clear and correct as to the approval.”
The Judge rejected Mr Green’s case that, with or without official approval, the installation of the kerb cam was negligent by Sunset in location and manner. He reviewed extensively the expert and factual evidence on the issues, describing it (at [391]) as being “on all sides ... unsatisfactory”. He said that the camera was placed on the racing line where it was reasonably foreseeable that it would be run over by both wheels on one side of a car on the verge ([393]); that the kerb crossing each way, and the bumpy surface behind the verge, would destabilise the car, either already out of control to a degree or racing in a deliberately more risky manner ([395]); but it was not reasonably foreseeable that the passage of the car over the kerb could significantly destabilise the car or add significantly to the destabilising effect of the kerb crossing ([395]). The Judge said, on the latter point:
“395….. The camera was designed to be run over, even if its 1½ inches were proud of the ground; the grass would have some give, mesh less so. I accept the evidence that these cameras, even when not seated flush within kerbing or on the ground or when unsecured had not been known to cause any actual problems when run over; nor had the cable.
396. In general, witnesses accepted that a kerb cam would have been removed from the track or kerbing itself. This suggests that it had a foreseeable destabilising capability there, and if there, then anywhere. There is force in that point. The significance of a minor degree of destabilising movement however on the track itself in close proximity to other cars, where no destabilising at all would be expected, is obviously greater there. The frequency of the passage of vehicles is greater there. There would also be a greater risk that a vehicle hitting such an object unsecured on the track would cause it to hit other vehicles in closer proximity. In the end I do not think that the generally precautionary approach which would be taken to track and kerbstones themselves can be used, in the face of the other evidence, to show that it was negligent to put the kerb cam where it was or that significantly destabilising a car on the verge was a reasonably foreseeable risk.
397. I have also taken into account the evidence of the accident experts. Mr Munro’s own theory as to destabilising required such an unpredictable and rare, indeed scarcely conceivable, combination of events, that if it demonstrates a possible cause, it demonstrates more forcefully how unforeseeable the risk of significantly destabilising the car actually was.”
398. There is no evidence that on any previous occasions in races at different venues of a variety of types the presence of this camera had created any stability problem for a car running over it when it was proud of the track or kerb or verge surface. There is no evidence that any other car had been affected in any way by overrunning it at Goodwood, even though the car would already have been either to a degree out of control already or deliberately taking a calculated chance on being destabilised doing something which it should not do. There is actually no evidence of any car being affected by or drivers even being aware of the camera and cable on the track when it was hit on to the track, and on occasion hit while actually on the track.”
The Judge said ([399]) that he accepted that Sunset approached its task reasonably. He also concluded ([400]) that it was “consistent with a reasonably body of competent and informed opinion” to put the kerb cam where it was. None of the BARC officials would have or did require the removal of the camera. The Judge further concluded ([402] and [403]) that, had Mr Symes’ approval been sought before the meeting to the location of the camera, it would in fact have been granted; and had Mr Symes known of its location during the meeting together with what had happened on Friday (when the camera had been struck by cars on a number of occasions causing it to be broken), he would still have been content with the location of the kerb cam in the knowledge that cars would run over it. He continued:
“405. Either it was not or it could not be said that it would have been negligent of Sunset & Vine or Goodwood/BARC to rely on Mr Symes’ approval. He was not merely a man of great experience and expertise; he was the man who made the decisions to which others deferred. Criticisms may be made of his independence from BARC and Goodwood, of the reliability of his memory and the clarity and quality of some of his views as an expert, and in the clarity with which he would have expressed his approval in relation to the manner of fixing. But there can be no question but that he represented a, if not the, responsible body of opinion in accordance with whose view Sunset & Vine, and Goodwood/BARC, were entitled to act even if others disagreed with his views, and had sound reasons for doing so. It cannot be said that his views were negligently held, let alone so obviously negligently held that the defendants could not act on them without themselves being negligent.”
The Judge concluded ([406]), accordingly, that, to the extent that there was any negligence by Sunset in placing the kerb cam where it did without the approval of Goodwood or BARC or MSA, that negligence had no causal effect on the accident at all: the camera location was as it would have been if approval had been sought and obtained by Goodwood, as envisaged.
Turning to the issue of the manner of installation of the kerb cam, the Judge said ([407]) that the manner of installation was irrelevant to the accident, “which would have occurred in exactly the same way whether the camera had been fixed immoveably or the cable made taut and buried under the mesh”; but he had to address it in view of the issues of causation and remoteness. The Judge said that it was reasonably foreseeable that the camera would cause harm unless it was secured and the cable was restricted. He said:
“409. It was reasonably foreseeable at least to anyone with any experience of kerb cams and racing that if a kerb cam or cable were run over by a car, the kerb cam could move save to the extent that it was secured in some way. The camera reasonably foreseeably, if wholly unsecured and with sufficient loose cable, if hit on the verge, could go on to the track at an unpredictable height, where it might hit or be hit by a vehicle, or even possibly hit the driver in the open cockpit. The cable, depending on how much was loose, could wrap itself around the axle of a vehicle. This was reasonably foreseeable to a reasonably competent camera company such as Sunset & Vine, to the MSA and BARC officials, and also to Goodwood.”
The Judge considered ([410] and [411]) that it was negligent of Sunset to have secured the approval of neither Goodwood nor BARC nor the MSA to the manner of installation; but ([413]) had it done so:
“413…. Mr Symes would have entered a vague caveat, to his approval of the location, to the effect that the kerb cam should be properly secured. He would have accepted a degree of movement in the camera because he would have accepted the cable passing unfixed over the mesh to the camera from where it was placed in a shallow trench behind it. Although Mr Trouton had some misgivings about the camera location after the event, neither he, Mr Felix and Mr Symes thought that there was anything about that lack of securing which was really untoward.”
414. BARC officials would all have required the cable to be laid and fixed in such a way that it could act as a tether for the camera significantly reducing the prospects of it being hit on to the track, or of flying in the air. There is no evidence that the camera became detached from the cable at the point where it was clamped to the camera on the occasions when camera or cable was hit on the verge.
415. The system which would have been approved would have included a more time consuming and labour intensive process of feeding the cable between panel edges as they met at the angle where their straight edges accommodated the track curve, and between broken and dented bits or making it more taut in the ground on the battery side of the mesh. This would have been rather closer to what Mr Docherty’s team did on the Thursday and rather more than was done on the Friday and Saturday. What was done on Thursday was not negligent. ...”
The Judge concluded ([415]) that it had not been shown that the installation first thing on Saturday was done in a negligent manner, although an improvement would have been required.
The Judge said ([416]) that the important point, however, was that the installation of the camera, with the appropriate degree of fixing by the camera, would have made no difference to how the accident occurred:
“416…. The result of the Maserati overrunning it would have been exactly the same even if the camera had been rigidly fixed – which no system of fixing the cable could have or would have been intended to achieve. The mode of installation, even as on the Saturday and even if negligent, made no difference to whether the accident occurred or occurred in exactly the way as it did.
417. I am satisfied that any difference, and it is no more than a modest one between the fixing of the cable on the Saturday morning before racing, and what Mr Symes or others would have required had no causative effect on the behaviour of the car. The manner of fixing the cable is irrelevant to what happened to the car.”
Turning to the issue of contributory negligence, the Judge said ([440]) that it was not necessary to reach a view of the extent to which, if at all, Mr Green’s driving amounted to contributory negligence; but having been asked to reach a view, he decided to do so. He would have regarded Mr Green as 80 per cent contributorily negligent. He said:
“441. Had I been of the view that any or all of the defendants had been negligent in placing the kerb cam where it was, or in allowing it to remain there, and had that negligence caused or contributed to the accident, I would nonetheless have regarded Mr Green as 80 per cent to blame, because of the modest causal contribution which their negligence made compared to what I regard as the far more potent causal contribution made by the way in which Mr Green drove, and the blameworthiness of how he drove. Essentially, but not exclusively, the accident was his fault.”
The Judge then addressed an argument based on the principle in Hughes v Lord Advocate [1963] AC 837 and Jolley v Sutton LBC [2000] 1 WLR 1082. He described it as follows:
“442. This issue concerns whether any defendant can be liable to Mr Green if, as I have found, the manner of installation did not cause or contribute to the accident in any way, but the manner of installation was negligent and could reasonably foreseeably lead to an accident on either of the two “lethal missile” scenarios (i.e. a car striking the camera on the track once dislodged there or a dislodged flying kerb cam striking another car or driver) or by cable entanglement with the wheels.”
443. Mr Ticciati submitted that if I were to conclude that (a) it was reasonably foreseeable that a car might be destabilised because it passed over the kerb cam in the location where it was placed in a way which could lead to personal injury or (b) it was reasonably foreseeable that a car might hit the camera and cause it to become a danger to other cars by knocking it into the track where running over it could destabilise them leading to personal injury, or by knocking it flying into the air over the track where it could cause harm to other drivers, those at fault for placing the kerb cam there or for installing it insecurely would be liable for Mr Green’s accident, even if the chain of events leading to his accident was not a reasonably foreseeable chain of events. A personal injury accident to a driver and damage to his car was a reasonably foreseeable consequence of the negligence in placing a camera where it was placed, or placing it there in the manner chosen. The accident would have been caused by a known source of danger, and any unforeseeability in the way in which the known source of danger caused the accident was irrelevant to liability; Hughes v Lord Advocate [1963] AC 837, Jolley v Sutton LBC [2000] IWLR 1082.
The Judge summarised ([446]) the relevant principle of law as being “that an accident by a known source of danger but caused in an unforeseeable way still leads to liability”. He rejected ([448]) its application in the present case because, for the reasons he had given earlier in his judgment, it was not negligent to place the kerb cam where it was placed, which “would have been approved and conformed to prevailing television industry and motor racing standards”; and, if the lack of fixing of the kerb cam or tethering by cable, with cable lying loose on the surface, was negligent, because of the foreseeability of the “lethal missile” scenarios or cable entanglement, “that negligence simply played no causal part at all in the accident which did happen.” The Judge elaborated:
“448…… The kerb cam itself was not a known source of danger placed where it was. If the lack of fixing was a known source of danger, the removal of the danger was by fixing the camera, not its removal. It was the presence alone of the kerb cam which made a minor contribution to the causing of the accident, not the lack of fixing. Jolley is not authority at all for a proposition that a causal link between the negligent act and the injury is unnecessary.”
The appeal
Although the trial lasted some three weeks, the Judge’s judgment was long and detailed, the skeleton argument in support of the application for permission to appeal ran to 23 pages, the skeleton argument of Mr Jeremy Nicholson QC and Mr Oliver Ticciati, for Mr Green, on the appeal itself ran to some 29 pages, and the appeal itself lasted two days, it became apparent by the end of the oral hearing of the appeal that the grounds of appeal were in reality very limited. The Grounds of Appeal attached to the Appellant’s Notice suggested a wholesale attack on the Judge’s evaluation of the evidence as to the cause of the accident, and on his findings that Sunset was not negligent in placing the camera where and as it did and that BARC was not negligent in failing to have it removed, and on his reliance on his finding that Mr Symes would have approved the placing of the camera where it was placed if he had been asked (which he was not). The Grounds of Appeal also challenged the Judge’s finding of fact that, if Sunset or BARC had been liable to him, Mr Green would have been 80% contributorily negligent. Those Grounds of Appeal suggested an invitation to this Court to undertake a complete re-examination of all the factual and expert evidence at the trial. Following a very helpful one page distillation by Mr Nicholson and Mr Ticciati of their lengthy skeleton argument (“Mr Green’s Distilled Skeleton”), at the request of Ward LJ, and the inevitable clarification of Mr Green’s appeal in the course of exchanges between the Bench and counsel during the oral hearing of the appeal, the grounds of appeal which fall for decision have been reduced to the following relatively narrow issues:
(1)Was the Judge bound to conclude that there had been negligence on the part of Sunset and BARC in view of the obvious dangers for the camera to be placed where and as it was?
(2)Did the Judge wrongly reject Mr Munro’s theory of the cause of the accident because of the Judge’s failure to appreciate that Mr Laws’ analysis of the photographic evidence, which the Judge accepted, supported Mr Munro’s theory?
(3)In view of the Judge’s conclusion that the camera played a contributory part in the accident, even if “a modest contributory part” ([200]) and “a minor factor” ([201]), was the Judge wrong to fail to conclude that the negligence of Sunset and BARC was legally causative of the resulting damage?
Sunset’s Respondent’s Notice
Sunset issued a Respondent’s Notice in which Sunset relied on several further grounds for upholding the Judge’s analysis and conclusions. The only one that is material, for the purpose of this judgment, is that the Judge ought not to have found that there was any breach of duty on Sunset’s part.
Negligence
Mr Green’s appeal on the issue of negligence was summarised as follows in Mr Green’s Distilled Skeleton:
“1. It was obviously dangerous for the camera to be placed where and as it was: in a location where it was likely to be hit by racing cars travelling at 80-90mph, and without being secured in any way; since it involved real risks of (1) destabilisation of cars cornering at such speeds, by either running over the camera or any of the following; (2) the camera being thrown up into the air and hitting a driver; (3) the cable getting wrapped round a wheel/drive shaft; (4) the camera & cable being thrown onto the track, where they were even more likely to be run over.
2. These dangers should have been obvious to anyone who looked at the location and thought about the question of risk; but were even more obvious to both Sunset & Vine and BARC by the end of Friday 16 September 2005, when, as they both knew, the camera had been hit by cars a number of times, and broken.
3. In those circumstances, on Saturday 17 September 2005, Sunset & Vine were negligent in replacing the camera in the same location and unsecured; and BARC were negligent in allowing it to remain in that location and unsecured.”
It is quite impossible, in my judgment, successfully to challenge the Judge’s finding in relation to issue 1(1) of Mr Green’s Distilled Skeleton, that is to say the Judge’s conclusion that the risk of destabilisation of cars running over the camera while cornering at speeds of 80 to 90 mph was not such as to make it dangerous for the kerb cam to be placed where and as it was. He was fully entitled to come to that conclusion on the evidence.
Mr Nicholson attacked as unprincipled and without proper evidential support the Judge’s finding in [395] that “it was not reasonably foreseeable that the passage of the car over the kerb cam could significantly destabilise the car or add significantly to the destabilising effect of the kerb crossing”, and his finding in [400] that “[p]utting the kerb cam where it was, was consistent with a reasonable body of competent and informed opinion …”. Mr Nicholson submitted that those conclusions reflected an improper application by the Judge of the principle expounded by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (at 587) that a doctor was not guilty of negligence “if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. Mr Nicholson submitted that there was no proper evidential basis for the Judge’s conclusion, and that the Judge overlooked that, for a practice to be held to satisfy the Bolam test, it must be reasonable and logical and requires an assessment of the foreseeability of the risk and the means by which it might be avoided. This criticism of the Judge’s conclusions cannot possibly succeed. In reaching them the Judge relied upon the evidence of a large number of witnesses. Their evidence was that the kerb cam was designed to be run over, even if it stood proud of the ground; such cameras, even when not seated flush within kerbing or on the ground or when unsecured, had not been known to cause any actual problems when run over, and nor had the cable; there had been no previous occasion at Goodwood or elsewhere when the presence of the camera had created any stability problem for a car running over it when it was proud of the track or kerb or verge surface. The Judge also took into account ([397)], as he was entitled to do, that Mr Munro’s own theory as to destabilising required “an unpredictable and rare, indeed scarcely conceivable” combination of events. Mr Green’s skeleton argument contains detailed criticism of the various witnesses, on whose evidence the Judge relied, but it is simply impossible to say that the Judge acted outside the bounds of a proper fact finding function in relying on their evidence or to expect this Court to conduct a minute examination and evaluation of the content and weight of their evidence and compare it with the evidence of the various witnesses for Mr Green.
It is unclear whether the Judge found that there was a foreseeable risk in relation to 1(2),(3) and (4) of Mr Green’s Distilled Skeleton, that is to say that there was a foreseeable risk and danger that, if the camera was placed where and as it was, the camera would be thrown into the air and hit a driver, or the cable would become wrapped around a wheel shaft or drive shaft, or the camera and cable would be thrown onto the track. These specific factual scenarios had not been alleged in the Consolidated Particulars of Claim, and were not apparently mentioned in the opening submissions on behalf of Mr Green at the trial. There was, however, a brief mention of them in the evidence of Mr Green’s experts, and Sunset’s expert, Mr Simon Livingstone, was cross-examined about them. The Judge addressed them in [409] of his judgment (quoted above).
In that paragraph the Judge endorses the foreseeable risks mentioned in 1(2),(3) and (4) of Mr Green’s Distilled Skeleton, but in a situation in which the kerb cam is “wholly unsecured and with sufficient loose cable”. Although the evidence was that the camera had been propelled on to the track on the Friday and that the camera and its cable moved some distance onto the track in the course of Mr Green’s accident, there is no specific finding by the Judge that the camera was wholly unsecured and with sufficient loose cable to give rise to the foreseeable risks mentioned in Mr Green’s Distilled Skeleton. Furthermore, there is a specific finding in [415] of the judgment that Mr Green had not established that the camera and cable had been installed in a negligent manner first thing on Saturday. That would suggest that the installation of the camera was not in so defective a manner as to give risk to the foreseeable risks to which the Judge had referred in [409] of the judgment. If that was the Judge’s conclusion, it was a conclusion he was entitled to reach on the evidence for the reasons I have already mentioned and is the end of that aspect of the appeal.
If, on the other hand, [409] of the judgment was not, as I think it was, merely a general statement rather than a statement of conclusions on the facts of the case, it is necessary to consider Mr Green’s argument based on Hughes and Jolley. Mr Nicholson conceded that the Judge was entitled to find that the precise chain of events leading to Mr Green’s accident was not foreseeable; but he submitted that, the Judge having found that there was a foreseeable risk in relation to 1(2) (3) and (4) of Mr Green’s Distilled Skeleton, Sunset and BARC are, by virtue of the principles in Hughes and Jolley, liable in negligence despite the lack of foreseeability of the precise sequence of events which caused the accident.
Hughes concerned the liability of the postmaster-general, represented by the Lord Advocate, for injury sustained by an 8 year-old boy who had entered into a tent, which covered an open man-hole left unguarded by workmen in the evening when maintaining underground telephone equipment. The man-hole was surrounded by warning paraffin lamps placed around the tent, one of which was knocked or lowered into the hole by the boy resulting in an explosion causing the boy to fall into the hole and be severely burned. It was contended, on behalf of the postmaster-general, that there was no liability because the damage suffered by the appellant was of a kind which was not foreseeable. The first division of the Court of Session held there was no liability because the accident was of an unforeseeable type. The House of Lords allowed the appeal and held that there was liability. Lord Reid encapsulated his approach in the following paragraph at page 845:
“So we have (first) a duty owed by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender’s fault caused the accident, and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.”
Lord Morris said at pages 852 and 853 as follows:
“…. The circumstances that an explosion as such would not have been contemplated does not alter the fact that it could reasonably have been foreseen that a boy who played in and about the canvas shelter and played with the things that were thereabouts might get hurt and might in some way burn himself. That is just what happened. The pursuer did burn himself, though his burns were more grave than would have been expected. The fact that the features or developments or an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable.” The pursuer was, in my view, injured as a result of the type or kind of accident of occurrence that could reasonably have been foreseen. In agreement with Lord Carmont, I consider that the defenders do not avoid liability because they could not have foretold the exact way in which the pursuer would play with the alluring objects that had been left to attract him or the exact way in which in so doing he might get hurt.”
“…. My Lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage “the precise concatenation of circumstances which led up to the accident.””
That approach was applied in Jolley, which concerned injury suffered to a boy when a boat, left abandoned for at least two years beside a block of flats on land owned by the defendant council and which was rotten, fell off its prop. The House of Lords held that the council was liable. Lord Hoffmann said at page 1091 D-G:
“It is also agreed that what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk which ought to have been foreseen. So, in Hughes v Lord Advocate [1963] AC 837 the foreseeable risk was that a child would be injured by falling in the hole or being burned by a lamp or by a combination of both. The House of Lords decided that the injury which actually materialised fell within this description, notwithstanding that it involved an unanticipated explosion of the lamp and consequent injuries of unexpected severity. Like my noble and learned friend, Lord Steyn, I can see no inconsistency between anything said in The Wagon Mound No.1 and the speech of Lord Reid in Hughes v Lord Advocate. The two cases were dealing with altogether different questions. In the former, it was agreed that damage by burning was not damage of a description which could reasonably be said to have been foreseeable. The plaintiffs argued that they were nevertheless entitled to recover by the two-stage process I have described. It was this argument which was rejected. Hughes v Lord Advocate starts from the principle accepted in The Wagon Mound No.1 and is concerned with whether the injury which happened was of a description which was reasonably foreseeable.”
Mr Green’s submission, based on Hughes and Jolley, was summarised by the Judge in [443] of his judgment which I have quoted earlier in this judgment. In short, the argument is that, since it was reasonably foreseeable that a car passing over the kerb cam, where it was installed, might lead to injury or damage by being knocked onto the track where it could harm drivers or hit a vehicle, Sunset and BARC are liable, even if the precise chain of events leading to Mr Green’s accident is not a reasonably foreseeable chain of events. On the findings of the Judge, that line of argument cannot possibly succeed because, as the Judge said in [448] of his judgment, “negligence simply played no causal part at all in the accident which did happen”. Hughes and Jolley concerned liability for negligence where the negligent act has caused loss and damage, but in a manner which was not foreseeable. They have no relevance at all to a case in which a negligent act has not in fact played any causative role in the loss and damage suffered by the claimant.
In the present case, the Judge found and emphasised ([395], [406], [407], [416] and [417]) that the presence of the kerb cam and the manner in which the cable was installed made no difference whatsoever to the occurrence of the accident. I shall now turn, therefore, to Mr Green’s challenge to the Judge’s findings on causation.
Causation
Mr Green’s case is that Judge misunderstood the consequences of a basic but crucial facet of Mr Laws’ evidence, namely his evidence that the body of the car was elevated by 2 inches when it crossed the kerb. Mr Green says that that evidence was consistent with Mr Munro’s theory. Assuming, which the Judge was prepared to do, that the rise was caused by the rear right wheel coming into contact with the camera, at the same time as crossing over the top of the kerb, Mr Nicholson submitted that the rear right wheel must have risen substantially more than 2 inches. In fact, he submitted, “as a matter of simple geometry” (para 22 of his skeleton argument), the rear right wheel must have risen off the ground by about 4”. That was illustrated by a diagram, which Mr Nicholson had personally drawn for the purpose of this appeal, attached to his skeleton argument. Furthermore, Mr Nicholson pointed out that Mr Laws said in his oral evidence that the rise in the body of the car was a minimum of 2 inches and a maximum of 2 and half inches. That would, Mr Nicholson said, produce a rise of the rear right wheel off the ground of 4 to 5 inches because the rear suspension was very firm. If that was correct, that strongly supported Mr Munro’s theory that, at the critical moment of contact with the camera, the weight of the car was thrown on the front left wheel. That was because the evidence was also that the rear left hand tyre was not fully in contact with the ground at that point, and that the Maserati had an unusual steering arrangement. The consequence was that the car veered uncontrollably to the left.
This argument took up much of Mr Nicholson’s oral submissions, and he advanced it with sustained resolve. I cannot accept it. A rise of 4 to 5 inches of the rear right wheel, as a result of Mr Laws’ evidence as to the rise in the body of the car by 2 inches, was never put to Mr Laws or indeed any of the Defendants’ witnesses in cross-examination. It was not even clearly put to the Judge in the closing submissions for Mr Green: it is said to have been made in the single sentence in paragraph 11.3 of his closing written submissions –“If the body rises about 2” the rear right wheel must have risen more.”
More important, however, there was no oral evidence that the rear right wheel actually rose off the ground at all at any point. Mr Laws never said so. Furthermore, Mr Nicholson’s “simple geometry” assumes rigidity in the rear of the car. It does not take account, for example of any travel in the suspension or of any effect of the uneven ground where the Maserati left the track or of any lean in the car while cornering. Mr Nicholson said that the evidence was that the rear suspension was very firm and that any unevenness in the terrain was irrelevant to Mr Munro’s analysis of the photographic evidence. Those points, however, were matters for expert evidence and had to be put to the Defendants’ expert witnesses. Mr Nicholson said that there was no other plausible explanation of what happened. The Judge, however, was entitled to find ([194]) that the plausible explanation was that the accident was caused because Mr Green was driving too fast for the line he took crossing the kerb and unsettling the car in the process. Mr Nicholson said that those reasons do not stand up to scrutiny; but such a general sweeping statement, based on a particular view of all the evidence, is no basis for an appeal to this Court. Mr Nicholson also sought to reinforce his argument by saying that it and Mr Munro’s theory were supported by the evidence of the witnesses who saw the accident, and who gave evidence of a violent movement or jolt of the car. The Judge explained, however, why he concluded that the “jolt, however described” was predominantly caused by the passage of the car coming back over the kerb, and why he preferred the expert photographic evidence of Mr Laws to that of the eye witnesses: [149] and, for example, [22] of his second Judgment of 7 October 2009 (“the second judgment”). He was entitled to take that approach.
Mr Nicholson criticised the experts for the Defendants, including their independence, when compared to Mr Munro. In Mr Nicholson’s skeleton argument, reference was made to various judgments in other cases in which adverse comments were made about Dr Searle. Quite apart from the serious question whether such judgments are legally relevant or admissible on the point, the criticisms of the Defendants’ experts were expressed to the Judge at the trial, and he took them into account in forming a view as to the integrity and reliability of those witnesses: see, for example, the Judge’s comments about Dr Searle in [183] and also in [12] of his second judgment, and his comments about Mr Symes in [405]. It is quite impossible, in the circumstances, to contend that the Judge took a view about the reliability of the witnesses which no judge properly exercising his function could have done.
Mr Nicholson’s next argument on causation was that the Judge, having said at various points in his judgment that the impact of the car hitting the camera was a cause of the accident, albeit not the sole cause or even the principal cause, was bound in law to hold that the placing and installation of the camera were legally causative of the loss and damage resulting from the accident. In that connection, Mr Nicholson referred to the following passage in the judgment of Devlin J in Heskell v Continental Express Ltd [1950] 1 All ER 1033, at 1047C/D:
“Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant: see Minister of Pensions v Chennell [1946] 2 All ER 721) per Denning J.”
Mr Nicholson rightly pointed out that the Judge said that the camera was a cause of the accident. The Judge said (at [194]) that the car hitting the kerb cam “aggravated to a modest extent” the unsettling effect of the Maserati crossing back over the reverse of the kerb and down the slope; (at [200]) that the camera “played … a modest contributory part” and ([201]) was a “minor factor in the accident”; and ([231]) that the camera played a “minor contributory role… in destabilising the Maserati and leading to the accident”. The potential destabilising effect of the camera on the car was also mentioned in [395] and [396] of the Judgment. Those observations of the Judge must, however, be read in the context of the judgment as a whole. What is perfectly clear, from the judgment as a whole, is that the Judge did not consider the presence and installation of the camera to have been materially causative of the accident, in the sense that the accident would not have happened but for them. He said expressly (at [407]) that “(t)he manner of installation was irrelevant to the accident: it would have occurred in exactly the same way whether the camera had been fixed immoveably or the cable made taut and buried under the mesh”; and (at [416]) that “the installation of the camera, with that degree of fixing by the cable [viz. which would have been approved, if approval had been sought and given] would have made no difference to how the accident occurred”; and (at 417]) that “(t)he manner of fixing the cable is irrelevant to what happened to the car”. Accordingly, there is nothing in this line of attack on the Judge’s conclusions.
In Mr Green’s Grounds of Appeal attached to his Notice of Appeal complaint is made that the Judge, in [208] to [212] of the judgment, wrongly took account of Mr Green’s conduct after the accident. In those paragraphs the Judge referred to what Mr Green said to Mr Felix, the Clerk of the Course, after the accident, and to various meetings and conversations between Mr Green and Lord March. Mr Nicholson did not elaborate on those matters in his oral submissions, but he referred to those paragraphs in his skeleton argument in which they were addressed. In my judgment, there is nothing in the point. So far as concerns what Mr Green said to Mr Felix, the Judge said that “no weight can be given to [Mr Green’s reaction]”, which was when he was just coming to after the accident and wanted people to know he was not dead. So far as concerns the conversations with Lord March, the Judge said ([212]) that, if Mr Green had really thought that the camera was the only cause, he was surprised that he had not mentioned it to Lord March in those conversations; and that those conversations indicated that “whatever role he thought the camera played, he knew his driving was at least a major cause of the accident.” It is perfectly clear, however, from reading the judgment as a whole that the Judge’s conclusion about the cause of the accident was based entirely on his interpretation of the expert evidence and the evidence of the factual witnesses who saw what happened or were involved in the arrangements on the day. The Judge’s comments about the conversations and meetings of Mr Green after the accident were no more than brief observations and not an essential part of the Judge’s analysis.
Essentially the same answers apply to the complaint in the Grounds of Appeal and in Mr Nicholson’s skeleton argument (again, not elaborated upon by Mr Nicholson in his oral submissions) that the Judge was wrong to place reliance on Mr Green’s previous accidents: see, for example, the Judge’s comments in [225] and in [23] of his second judgment.
In the circumstances, Mr Green’s challenge (in paragraph 6 of his Grounds of Appeal) to the Judge’s finding of 80% contributory negligence on the part of Mr Green does not arise.
Sunset’s Respondent’s Notice
It is not necessary, in the circumstances, to address the additional matters on which Sunset relies to uphold the Judge’s order. For the sake of completeness, however, it is common ground that it was never part of Mr Green’s case against either Sunset or BARC that their negligence consisted of a failure to seek approval from MSA as to the position of the kerb cam and its manner of installation. For that reason alone, the Judge was wrong, in my judgment, to conclude ([279] and [335]) that Sunset was negligent merely by virtue of the fact that Sunset did not have the approval of the MSA or BARC.
Conclusion
For those reasons I would dismiss this appeal.
LORD JUSTICE JACOB:
I agree.
LORD JUSTICE WARD:
I also agree.