Benjamin Hetherington (by his father and litigation friend Gary Hetherington) v Raymond Fell & Anor [2025] EWHC 1487 (KB)

[2025] EWHC 1487 (KB)Claim number: KB-2022-003159
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue THE ROYAL COURTS OF JUSTICEDate 16 June 2025
Before
MR JUSTICE RITCHIE
Between
BENJAMIN HETHERINGTONClaimant(by his father and litigation friend GARY HETHERINGTON)ClaimantRAYMOND FELLDefendantFERRYHILL WHEELERS CYCLING CLUBDefendantBENJAMIN HETHERINGTON(by his father and litigation friend GARY HETHERINGTON)Claimant- and –RAYMOND FELL1st Defendant and Part 20 Claimantand –FERRYHILL WHEELERS CYCLING CLUB2 nd Defendant and Part 20 DefendantChristopher Kennedy KC (instructed by DAC Beachcroft) for Part 20 Claimant.Martin Porter KC (instructed by DWF) for Part 20 Defendant.Hearing Hearing dates: 3, 4, 5, 6 June 2025.
APPROVED JUDGMENTThis judgment was handed down remotely at 14.00pm on Monday 16 th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

The Parties

[1]The Claimant was a young man who, on the 23rd of May 2019, was riding a bicycle in a time trial on a dual carriage way. The 1st Defendant was the driver of a Mercedes on the same dual carriage way at the time. The 2nd Defendant is a cycling club run by amateurs and volunteers who had arranged the time trial.

Bundles

[2]For the hearing I was provided with 3 lever arch files of documents, two skeleton arguments, an authorities bundle and, during the trial, copies of the Highway Code and some Statutes.[3]The Claimant was a member of the second Defendant’s cycling club. The time trial was arranged over a 10 mile course, most of which consisted of a dual carriageway called the A689, Hartlepool Road. As the Claimant was cycling eastwards along the dual carriageway approaching a side road called Butterwick Road to his left, the First Defendant was driving westwards along the dual carriageway intending to turn to his right, into Butterwick Road. The First Defendant turned into the slip lane off the fast lane which curved through a grassy central reservation. He did not stop at the white painted “give way” lines at the end of the slip lane but instead drove at about 20 mph across the two eastbound lanes and an impact occurred during which the Claimant cycled into the rear passenger side of the Mercedes just in front of the wheel arch. The Claimant flew over the boot and ended up in the eastbound fast lane, very severely injured.[4]The Claimant sued the First Defendant, Mr Fell, alleging negligence. In response, Mr Fell denied negligence and brought Part 20 proceedings against the Ferryhill Wheelers Cycling Club (the Club) alleging negligent risk assessment and failure to put out adequate signs and a sufficient number of marshals. The Club denied liability for the accident. In due course, before the trial of the claim between the Claimant and Mr Fell, the car driver’s insurer admitted liability in full for the accident. Therefore, all that remained was to resolve the claim for contribution and/or indemnity by the 1st Defendant car driver’s insurer against the Club’s insurer. The Claimant was not financially interested in the result of that issue and so did not appear.

The Issues

[5]I consider that the issues between the Part 20 parties were as follows.5.1 Did the Club owe a duty of care to the Claimant to risk assess the time trial course (the Course)?5.2 If the Club owed a duty of care, what was the scope of the duty and the standard of care required by law?5.3 Did the Club breach the requisite standard of care?5.4 Did any breach/es cause the accident in whole or in part?5.5 If so, how should liability be apportioned between the two Defendants?

Pleadings and chronology of the action

[6]The claim form was issued on the 22nd of September 2022. In the particulars of claim the Claimant asserted Mr Fell was driving home from work and passed two Highway Authority signs on the westbound dual carriageway before the Butterwick junction which warned him of cyclists, pedestrians and horses as the hazards ahead. The Club’s time trials had been run weekly for 10 years between May and August and the Club took precautions by putting out signs near two roundabouts near Wynyard Business Park and Wynyard village and also by positioning marshals at the roundabouts. Furthermore, by putting a further sign on the central reservation adjacent to the turn into Butterwick Road. The First Defendant drove past all the signs and admitted, at police interview, that he did not see (or register) any of them or the marshals and he did not see the Claimant. He also admitted to the police that he did not believe that the sun affected his vision. The Claimant asserted that Mr Fell was negligent by failing to keep a proper lookout, failing to see the signs, failing to give way and failing to stop. The Claimant’s injuries included traumatic brain injuries, bilateral pneumothoraces, fractures to his left shoulder and 6th thoracic vertebrae, his left wrist and left metacarpal. The Claimant was airlifted to the James Cook hospital and his Glasgow coma score was 3 out of 15. He was treated in A and E and soon had a craniotomy and decompression. Thereafter, in ITU, he was PEG fed and suffered left hemiparesis. He was in hospital for three months. He underwent cranioplasty during that time. He was then discharged to rehabilitation for 4.5 months. In very broad summary, the effects on the Claimant included lack of capacity, personality change and he faced a 6% risk of epilepsy.[7]Mr Fell defended through his insurers, denying liability and asserting the sun was low from the West and that trees to the Claimant’s left-hand side had produced shade over him and his lane and he wore dark clothing. Furthermore, Mr Fell asserted that the fixed signs did not inform him that there was a time trial going on. He asserted that the Claimant contributed by his own negligence because he could have avoided the crash. Mr Fell asserted the Claimant was going too fast and failed to brake or swerve. In addition, Mr Fell asserted that the Club were negligent and hence liable for the accident. He put the Claimant to proof of the presence of signs at the roundabouts and the presence of marshals, because he had not seen them. He admitted there was a temporary sign at the junction with Butterwick Road. He asserted it was partially concealed by grass and was inadequate. He criticised the Club’s risk assessments, particularly the one in 2018. He criticised the categorisation of the risk at Butterwick junction as “low” and asserted that the 2018 risk assessment breached the Road Cycling Time Trials Council’s (CTT) Guidance to the Club and in particular relied on the definition of “low risk”. Mr Fell asserted that the sign should have been placed 100 metres earlier, at the start of the slip lane, to give him proper notice. Mr Fell asserted the categorisation of the risk to cyclists at that junction as “low” was negligent, inter alia because there had been a previous accident less than 2 years earlier at the same junction and he pleaded that no actual risk assessment had been carried out after that. In the light of the speed of the Claimant’s bicycle and his reduced conspicuity, due to the sun and the shadowing of the trees, a proper assessment would have required clearer signs which would have alerted Mr Fell and made the Claimant more conspicuous and so impact would have been avoided.[8]The Club defended the Part 20 claim asserting that it consisted of volunteers carrying out desirable activities and that imposing a duty of care would discourage the organisers and those who took part. The Club pleaded that the course was 10 miles long and ran along the A689 in both directions, at a quiet time, when traffic was modest. The Club asserted that Mr Fell caused the crash and denied negligence and causation. The Club asserted that it is an unincorporated members association with no legal personality. In relation to the risk assessment, CTT had identified the risk at the Butterwick junction as “low”. The Club asserted the event complied with the Cycle Racing on Highways Regulations 1960. There was a low volume of traffic at that time on that dual carriageway. The Club asserted that Mr Fell owed the Claimant a duty of care because cyclists are vulnerable and pointed out the signs installed by the Highways Authority which had warned Mr Fell about cyclists. The Club relied on the many previous cycling time trials carried out on that very highway. In addition, the Club pleaded that they did take steps to mitigate the risk at the junction after the previous accident in 2017 there, by putting a large sign at the junction, near the give way lines and by putting up temporary signs warning of the cycling time trials at the two roundabouts in or around Wynyard Business Park and village and by placing marshals there. The Club denied that their risk assessment was inadequate and asserted Mr Fell caused the crash. The Club relied on the Highway Code, in particular rules 170, 172 and 237, which required Mr Fell to give way at the give way lines and to take extra care at road junctions and, if the sun dazzled him, to slow down or stop.[9]On the 20th of February 2024 deputy Master Yoxall identified liability as the preliminary issue, ordered it to be tried in relation to the claim and the part 20 claim, budgeted the costs, ordered disclosure in March 2024, service of witness statements in May 2024, service of experts report in July 2024, with joint statements in September 2024 and a four day trial in 2025.

The lay witness evidence

[10]I heard evidence from the following witnesses:10.1 Mr Fell (D1).10.2 Mr Simpson (for the Club).10.3 Mr Russell (for the Club).10.4 David Barry (for the Club).10.5 Mr Mark Hill (RTA accident reconstruction expert) for Mr Fell.10.6 Mr Stuart Blackwell, (RTA accident reconstruction expert) for the Club.10.7 Doctor Brown, (Risk Assessment expert) for Mr Fell.10.8 Professor Ball, (Risk Assessment expert) for the Club.[11]I was invited by the parties to read the rest of the evidence in the trial bundles and I did so. I shall summarise some of it below.

Lay witness evidence

[12]The police report recorded that on the 23rd of May 2019 Mr Fell turned right across the Claimant's path and they collided. The factors relevant were listed as: Mr Fell’s failure to look and the dazzling sun. The Claimant cannot recall the accident and so his evidence does not assist. There was a police bodycam video taken on the day, as the police officers drove towards the scene of the accident, not long afterwards, which shows quite bright sunshine above the tree line to the Claimant’s left. I have carefully viewed the videos.[13]The First Defendant spoke to PC Bulmer at the scene soon after the crash. He admitted that he did not stop at the give way lines, saw nothing oncoming, and went across. He was interviewed by the police on the 10th of June 2019, 18 days after the accident. He stated he was going home on the westbound dual carriage way in the slow lane at between 50 and 60 miles an hour, then moved into the fast lane and then into the slip lane, slowing down as he did so. A car passed in the opposite direction. He was driving at about 20 mph and didn't see anything when he looked along the dual carriageway, oncoming, so he preceded into Butterwick Road. As as he did so he heard a bang and he stopped. He informed the police that he worked in Billingham at KP Foods and he had just completed a 7:00 am to 7:00 pm day shift. As he drove home he did not see any cycling time trial signs on the roundabouts at Wynyard. He had travelled that route for four years. He was not aware that any cycling time trials were ever carried out on the dual carriageway. He said that he had suffered no issue with the weather, although he was driving into the sun, because he was wearing sunglasses. He did not believe the sun affected his vision at all. He got to the slip road at 7:15 pm. He looked along the dual carriageway, then looked into Butterwick Road, then looked along the dual carriageway again and then, because it was completely clear, he drove into Butterwick Road. He did not see the sign that had been placed in the central reservation gap. He was not travelling “much above 20 mph”. He informed the police of his various past crashes and speeding offences. He said that he had Classic FM on the radio as he drove.[14]In his witness statement, sworn on 2.5.2024, he asserted that he had got up at 6:00 in the morning to do his 12 hour shift that day. After work, he had taken his usual route home, which he had been driving for four years and with which he was very familiar. He planned to see his uncle on the way home. It was bright and sunny. He had music playing. He had seen cyclists riding normally on the A689 from time to time but had never seen time trials. He asserted that:
“if I had seen the sign on the floor I do not believe I would have been able to notice that it said a cycling event was going on.”
He suggested it was too low down and below his eye level. As far as he was concerned he did nothing wrong and he slowed down to a suitable speed before he crossed the junction. At paragraph 48 he wrote “the cyclist simply wasn't there to be seen,”. He also asserted that he was surprised that cycling time trials were allowed because it was a public road and it was clearly a dangerous place to allow a time trial to take place.[15]In cross examination Mr Fell accepted that he never saw the signs for cycling time trials. He asserted he left work at 7:00 pm and accepted that the distance to the junction was 7.3 miles. He went around the 2 large roundabouts near Wynyard but he didn't see any cycle event signs or marshals. He was familiar with the permanent highway authority signs on the dual carriageway warning him of cyclists, pedestrians and horses. It was put to him that, because the readout the police had obtained from the Garmin device worn by the Claimant showed that the Claimant set off at 7:05 pm for the start of the time trial and the accident occurred 3 minutes and 38 seconds after he set off, the accident actually occurred at 07:08:38 pm. Mr Fell accepted that time as a more accurate timing than his 7.15 estimate. Counsel then put to Mr Fell that he could not have got from his place of work to the junction within 8 minutes without breaking the national speed limits on the way. Mr Fell denied this. He denied that he lied to the police about his speed. Mr Fell accepted that he didn't brake when he slowed down approaching the junction on the slip lane, he just took his foot off the accelerator. He accepted that he did not see the yellow warning triangle, which would have been in his field of vision as he approached the stop lines at the junction and he complained it was not prominent, was set at an angle and was not clearly visible. He accepted he knew he was obliged to look out for cyclists, as with all road users and he stated that he had been a cyclist from time to time himself. When pressed with the assertion that he had not looked properly down the oncoming lane, he again said “there was nothing there to be seen”. On the 3rd occasion when he made this assertion I sought to understand what he was saying and he explained that although the cyclist was clearly there on the road he had not seen him. Mr Fell sought to explain that the reason why he had not seen the cyclist was due to the shade of the trees, and he was then looking into Butterwick Road as he crossed. When questioned on the 40 to 60 metres of oncoming road which the Claimant cycled along out of the shadow (as agreed by the reconstruction experts) and the Claimant’s bare legs when cycling in the shadows, Mr Fell again stated that “he wasn't there to be seen”. Mr Fell accepted that rule 170 of the Highway Code required drivers to take extra care at road junctions and to give way where signs so indicated. He denied being dazzled by the sun because he was wearing sunglasses and he asserted he could see clearly.[16]Assessment of Mr Fell’s evidence. I did not find Mr Fell to be a witness upon whose evidence I could rely. Central to his case was that the Claimant “was not there to be seen”. This assertion is neither logical nor likely to be correct. Firstly, the Claimant clearly was there on the road because he cycled into the side of Mr Fell's car. Secondly, the Claimant was clearly visible in the last 40 to 60 metres before impact, because all of the accident reconstruction experts agreed that the shadows stopped 40 to 60 metres before the point of impact. As various of the plans have shown, and as the experts agreed in their joint report, by the time that Mr Fell was approaching the give way lines in the slip lane and from quite a few metres back, the Claimant was out of the shadows and cycling in full daylight towards the junction. Mr Fell simply ignored the joint experts’ report in his live evidence and clung to the assertion that the Claimant was not visible. Thirdly, Mr Fell’s failure to see three warning signs and marshals in high visibility jackets at the two roundabouts on his route near Wynyard was indicative, in my judgment, that he was not taking note of hazard warnings about a cyclist event. Fourthly, Mr Fell did not see the hazard warning triangle, which is plainly shown in the post event police photographs taken less than an hour after the accident. For a driver approaching down the slip lane this triangle would have come more and more into view. For a driver turning to his right near the end of the slip lane the triangle would have been obvious and clearly visible in my judgment. On the triangle was a bicycle set against a yellow background with a red triangle around it. To look up the A689 to see oncoming traffic Mr Fell would have had to look through, around and past the warning sign. The fact that he can not remember seeing it indicates to me that he did not look that way, or, if he did look, he was not paying proper attention. Fifthly, Mr Fell did not stop at the give way lines. When crossing this dual carriageway, with a maximum speed limit limit of 70 mph, it was incumbent upon him to follow the Highway Code. The code required him to give way and take special care at junctions. There could have been a motorcycle going a lot faster than the Claimant down the slow lane, through the shaded area caused by the sun and the trees, and Mr Fell was not entitled to assume that, because it was a bit darker there, he could ignore any road user going through the shade. Sixthly, I have carefully looked at the photographs taken after the accident and the professional photographs taken by Mr. Moore, and consider that even after the accident, with the sun lower in the sky, there was sufficient visibility to see a bicyclist with bare legs and bright red shoes, cycling past those trees before it exited the shadows into the sunlight. In my judgment, had Mr Fell stopped at the give way lines, or slowed down a lot more, he would have seen the Claimant as he cycled along in the shadow and moreover should have seen him in the unshaded 40-60 metres. I shall come to the expert evidence below, which I take into account alongside all the other evidence, but I make it clear here that I consider that Mr Fell’s insurers made a wise decision to admit 100% liability for the collision which was undoubtedly caused by Mr Fell’s negligence.[17]Barry Watson provided a witness statement, on 25.5.2019, for the police. He was a welder and a cyclist. He was aware that the time trials took place every Thursday evening. He stopped 50 to 70 metres down Butterwick Road before the junction and watched the riders pass eastbound at the junction. As he stood there the crash took place. A little before the crash, as he watched two bikes go past, he heard the crash, looked and saw the Claimant flying through the air. Other cyclists had stopped by the time he had walked to where the Claimant was on the road. This evidence is relevant because it shows that there were bikes riding in front of and behind the Claimant. Indeed 4 riders had set off between 7:00 and 7:05pm, at one minute intervals, on the evidence that I heard. This is another pointer to the inattentiveness of Mr Fell, who had no recollection of the four bicycles on the oncoming dual carriageway at approximately one minute intervals in front of the Claimant.[18]Written witness statements were provided by various police officers: PCs Blaney, Bulmer, Tranmere and Horner. These officers gathered information at the scene, took photographs and gave written evidence that the road surface was dry and clear and the sun was low in the sky. One also interviewed Mr Fell. PC Hardwick is a police accident investigator who provided a report dated the 12th of November 2019. He extracted information from the Claimant’s Garmin having attended the scene one and a half hours after the crash. He photographed the Club’s temporary warning sign in situ and I have looked carefully at that photograph. The bottom was partly obscured by grass, but not in such a way that made the sign inappropriate or insufficient, in my judgement. PC Hardwick did various calculations about speeds and distances and about the size of the shaded area on the dual carriageway. Not all of these calculations turned out, on later analysis, to be accurate. PC Hardwick concluded that the sun and shade reduced the Claimant’s visibility to Mr Fell, but Mr Fell was still responsible to ensure that he crossed safely.[19]Gary Hetherington is the Claimant's father and provided a witness statement dated 4.5.2024. It must have been the most horrific day for him and his wife. He explained that the time trials run by the Club were not for prize money. They had been running over the same course for 10 years. He and his wife had been members of the Club for years and had competed in the time trials on the same course 8 to 10 years ago. Other Clubs ran time trials on the same course including Hartlepool. The Claimant was a semi-professional cyclist and had competed in time trials over that course many times and also over other courses around the UK and internationally. Gary Hetherington and his wife regularly volunteered as timekeepers and marshals on the course. From past experience he wrote that the signs were put out in the same place for every race by Fred Simpson, the treasurer of the Club, who was described as “extremely organised”. He put the signs out half an hour before the races and Mr Hetherington had collected the signs up after the races previously. They were always in the same place. For the Defendant’s attention, the signs were on both roundabouts on the A689 around the Wynyards area with the words “caution - cycling event” or similar. Also, a total of two to three marshals, wearing high visibility vests, were positioned to raise awareness of the event at the roundabouts. In addition, a warning sign was placed at the Butterwick Road junction. He informed the court that it was not always easy to find enough marshals for the event and if insufficient were raised it was cancelled.[20]Darren Moore provided a witness statement, dated August 2021, setting out how he is a professional photographer and took photographs of the junction, which were in my bundle, showing Gary Hetherington, in Club clothing (the same as the Claimant’s), cycling along the slow lane on the 20th of July 2021. It was a fine, clear day with full sun. I found the photographs useful but understand that they could not have been a perfect reproduction of what was visible on the day.[21]Fred Simpson signed his witness statement on 3.6.2024. He is the treasurer of the Club. The Club is affiliated to the CTT. The CTT is the national governing body for cycling time trials in England, Scotland and Wales. Club members run events organised under the guidance of CTT. The governing body provides rules, regulations and guidance for time trialling. The CTT is split up into districts and the relevant district is Teesside, which has its own committee. Mr Simpson is a member of it. The relevant course was opened 10 years before the accident and was approved by CTT’s district committee on a proposal from the Club. The district committee carried out due diligence before providing approval, including a risk assessment. Mr Simpson attached, as an exhibit, the updated risk assessment from 2018, completed by Gavin Russell, a CTT board member. Mr Simpson accepted that the Club needed to ensure the appropriate risk assessment was complied with and that no changes were needed due to temporary conditions. He liaised with the police and followed the Cycle Racing on Highways Regulations 1960 and section 31 of the Road Traffic Act 1988. He placed the hazard warning signs on the course in accordance with the risk assessment, including a sign 100 metres from the start and signs at the two roundabouts near Wynyard Business Park and Wynyard Village. Three signs were placed at Wynyard Business Park roundabout even though the risk assessment only required 2. Although the risk assessment did not require a sign at the Butterwick junction, a sign was placed there, for reasons other than the risk assessment, because of a previous accident there in August 2017 involving Robert Spink, caused by a vehicle carrying out the same turning manoeuvre that Mr Fell performed. The driver was prosecuted. An accident report form was completed for that accident but, following consideration by CTT, no changes were made to the course risk assessment. However, the Club took the decision to put an additional sign at the junction. He described the sign and attached a photograph of it, taken in August 2017, 1 week after the first accident, with the sun just above the trees. It is interesting to see the shadow caused by the sun. Not only is the sign clearly visible to any driver coming up to the give way lines along the slip lane, but also that there is visibility for the car which is parked in the shade under the trees (on that photo) and for substantial parts of the road both in shadow and out of shadow. I take into account that this was taken on a different day and no conditions will be precisely the same. Mr Simpson explained that, although he was familiar with the CTT guidance on signage which stated signage should be placed 100 to 200 metres before any junction on a dual carriageway with this speed limit, the Club decided to place the sign at the junction where a driver would be slowing down to cross the opposing carriageway. This was because the driver should not be travelling at speed when he passed the sign and so the sign would be directly in his/her line of sight. Mr Simpson considered that this position produced more safety.[22]At trial the Part 20 Claimant criticised Mr Simpson in cross examination and in submissions. Mr Simpson rejected the criticisms and defended himself stoutly and frankly. He stated that after the August 2017 accident members of the Club discussed it and he made a decision, but there was no official meeting. The motorist had admitted liability and pleaded guilty. He disclosed that, after the Claimant's accident, the Club decided to stop using the course altogether because they had “had enough”. He did not accept that that was because it was too risky to continue or that it was too dangerous. He still rode his bike on that road regularly. He accepted that in a time trial the contestants are pushing themselves and concentrating on their cycling and the road. But he did not accept there was a difference in risk between a time trial and normal fast cycling. Basically, he did not accept that cyclists needed risk assessments to cycle on highways. However, he followed the risk assessments provided by CTT and on the day he implemented the mitigation measures required in the CTT risk assessment. He was shown a form for “on the day” risk assessments and he accepted he would fill it in if there were any change in circumstances on the course that required a different risk assessment. He would drive the course before the time trial and he would put out the signs. Most weeks there were no changes, no new road works and no other matters. However, he did not fill in the form if there had been no change, he did not see the point. Strictly, he accepted the “on the day” risk assessment form should have had the box ticked which showed there were no changes, but to him that was just unnecessary paperwork. He did not accept that the risk assessment by CTT was inadequate. He stated that the “on the day” assessment he did was to look for changes and see whether the general risk assessment needed changes. He accepted the Club had a duty to implement the CTT risk assessment recommendations. He did not accept that he should have done more than he had done, which was to put an additional warning sign at the junction. He agreed that signs should be visible to motorists and not obscured. He agreed that his sign was not high on a post. He could not raise the sign high up because it would have obscured the carriage way view of the driver. He did not accept that where he put it was inadequate. He was involved in the decision to put the additional sign at Butterwick Road junction, despite the CTT risk assessment not being changed. He informed the Court that, after Mr Spink’s accident, Mr Spink himself arranged a time trial on the very same course to raise money for the air ambulance service. When it was put to him that the sun was a potential problem at the junction he responded that the sun was a potential problem on any road in the United Kingdom. When it was put to Mr Simpson that when he was carrying out an “on the day” risk assessment, if the sun was low in the sky, he should put additional control measures in place. He replied that he could not tell what the weather would do, where the sun would be, whether there would be cloud and asked whether counsel was suggesting “the race should be cancelled because the sun was shining?” He did not accept that putting a marshal at that junction would increase safety, motorists would simply see a guy in a high vis jacket wandering along the central reservation. When marshalling, in the past, he had been asked by a car driver, who had stopped, to get out of the way because he was distracting motorists. He was not aware of any formal Club meetings discussing the 2017 road traffic accident or any minutes thereof. He did not know whether the Club had considered the recommendations by Mr Russell, after the 2017 accident. However, he stated that he took the decision approximately the week after the Spink accident, to put the additional sign at the Butterwick Road junction. He stood in the central reservation and the photograph of the new sign was taken. He did not know if he had told CTT or Mr Russell of this decision. In re examination Mr Simpson stated it was illegal for marshals to direct traffic.[23]Gavin Russell provided a witness statement dated 4.6.2024. He joined the CTT board in 2011 and left in 2022. He was interim chair for the last six months. He is not a member of the Club. He is the district secretary for the Teesside District. He is a member of another cycling Club. He gave a similar summary of the history of the course. As for the risk assessment, he and David Barry did it and drafted the guidance and provided the blank forms. They defined the risk levels as: low, medium and high. He works for an international multidisciplinary consultancy as a planning supervisor and an auditor for clients, including the MOD and DEFRA. He develops and reviews risk assessments at work and was a national manager for health and safety, including highways, in one of his previous roles. He had experience and expertise in risk assessment. In 2007 he carried out the risk assessment for the course. He did so in a car. He stopped at each junction and measured the frequency of traffic, including at the roundabouts around Wynyard. He identified three places for signs, the start & finish line and the two roundabouts. He assessed the volume of traffic at the Butterwick Road turn off. It was low at the relevant time of year and the relevant time of day when the events were held. The risk assessment was approved and agreed with the Club. It was reviewed every year for traffic and accidents. After August 2017, when the accident occurred involving Mr Spink, he carried out an Accident Investigation and came to the conclusion that the Club should consider an additional marshal or a sign at the Butterwick Road junction. He stated that the CTT risk assessment was reviewed, he having attended the location and measured a low volume of traffic flow. He discussed the matter with Fred Simpson, a member of the district council and of the Club. Mr Russell came to the conclusion that no additional signage was required, partly because of the double give way lines in the road clearly requiring that drivers had to give way to oncoming traffic. The Defendant had admitted careless driving and was prosecuted. He stated that the main risk assessment was the minimum and clubs could do more if they wished. He advised that the booklet on risk assessment gave guidance that signs should be placed approximately 100 metres before a junction on a dual carriageway with a 70 mile per hour speed limit, but that was not a regulation or a requirement. He set out the guidelines on traffic count and stated that the flow at the Butterwick junction was well within the CTT guidelines. The traffic count as late as April 2024 showed numbers were still well within the parameters set down by the CTT.[24]In cross examination Mr Russell stated that the district council of CTT was not a big business. He could not recall whether the council had met to consider the August 2017 accident, but they did meet about the Claimant’s accident. They decided to cease using the course altogether. He could not explain why this was not mentioned in his witness statement but stated there was no reason why he did not mention this. It was closed because the Claimant had suffered such serious injuries that nearly took his life. Before the Claimant’s accident there had only been one accident at the junction in 10 years of using the course. He stated they could not cancel all time trials just because of an accident. In relation to the original 2007 risk assessment for the course he explained that it was important to keep it short so people would actually read it and understand it. He checked the course and he required signs and marshals to be placed at hazard points. He accepted that the risk documents needed to be reviewed and changed if necessary. He stated there was no need for clubs to come back to him if there was nothing to report. He did not want to receive reports stating that there was “no problem”. It was not a tick box exercise. In relation to the sun, he did not accept that anyone did risk assessments on the sun being in different places. He pointed out that there was plenty of cloud in the relevant area in the North East of England. CTT did not go on about weather forecasts all the time. He accepted it was CTT’s job to try to address the risks of accidents. He stated he had worked for ICI and for the military and understood risk assessments at work and concerning sports. He accepted a duty of care existed to demonstrate reasonable precautions had been taken by the Club and CTT. They had to look at the proposed course, the risks to the public, cycle riders and officials. He looked mainly at turns and junctions but also at farm tracks and crossings in central reservations. He issued a booklet to inform people about risk assessments. He himself used a road bike and understood that time trials involved risks. He had no opinion on whether time trials were more risky than normal cycling. He accepted that there was a risk for cyclists going past all junctions and that motorists might not appreciate the speed of time trial bikes. He considered that riding in a time trial was equally as safe as riding during the week. He accepted risk assessment should be done properly and implemented and reviewed. He considered the risk assessments for courses, including the relevant course, involved covering obstructions, forward vision, curves in roads and a multitude of sins. He did not accept that the sun was a seasonal hazard. He did not accept that the 2017 accident to Mr Spink was anything more than a tractor driver failing to comply with the law who subsequently admitted careless driving. He disclosed that the CTT had been threatened that they could be prosecuted if their marshals interfered with traffic. British Cycling, a different organisation, had the power to shut roads and run road races but CTT did not. He explained the difference in usage of the words “traffic island” in his risk assessments, which covered small and large roundabouts and that his assessment of the risk categorisation of cyclists being “impeded” depended on whether other traffic had the right of way on the course such that the cyclist would have to give way. He set out three sizes of sign: small medium and large. He did not think a large sign should have been put at the Butterwick Road junction. There were anchorage problems for signs that were not on lamp posts or Highway Authority poles. He considered that the sign at the junction was appropriate. Also, when trucks go by large signs on small wooden stakes flap about and cause a risk. Mr Russell was cross examined on the 2007 and 2018 risk assessments, neither of which identified as a hazard: cars turning through the gap into Butterwick Road, but only recorded considering cars turning out of Butterick Road. Mr Russell stated he considered cars crossing the A689 specifically and referred to column five in which “crossing from the 689” is written. He did not accept that the effects of the sun raised the risk level. In relation to the August 2017 accident he had read the injured cyclist’s report during his investigation. He did not consider that the sun being low in the sky was an excuse for the Defendant tractor driver, but he raised the issue in his investigation report as one which gave rise to a risk and he identified three measures to be considered by the district committee and the Club. The Club decided to implement a sign, but he could not recall the discussion. He stated that unless he trawled through his computer he could not confirm whether he had any record of the district council having a discussion. On the second day of cross-examination he accepted there were no changes to the course risk assessment after the 2017 accident because CTT considered it to have been caused by the driver’s error. He put forward a couple of control measures which were discussed with the Club chairman and the CTT district council and the CTT board, because the legal advisor to the board listed the accidents each month. The result was that the Club decided to put a sign at the junction. He did not accept that the fact that he did not mention any other discussions in his witness statement was in any way sinister. This was an innocent omission. He talked to the Club and the Club decided to put a sign there. Counsel cross-examined firmly on this point suggesting that Mr Russell was not correct in his evidence and that he did not have discussions and that he was hiding things, because he knew he should have had discussions. Mr Russell's response was that this assertion was unfair. He accepted that the positioning of a new sign at the junction had not been reduced into the revised risk assessment. He asserted again that there was a district committee discussion but accepted there was no written evidence produced of that. He explained this was because the driver was prosecuted and found guilty. The records had probably been destroyed because they only kept the records for four years. He had searched overnight but had been unable to find any minutes. He considered that the Accident Investigation report he produced was sufficient. Both the Club and the district council decided to cancel the use of the course after the Claimant’s accident because of the seriousness of the injury to Ben Hetherington. He explained that the reason why the additional sign was not put in the risk assessment was because the risk assessment was the minimum the Club was required to do. They could choose to do more. He did not accept that the sign did not accord with guidance. He considered it was in an appropriate place and he considered putting the sign 100 metres further back in the slip lane might put the official at risk when walking down the central reservation. When challenged on the categorization of the risk at the junction as “low”, he pointed out that any cyclist doing a time trial faced the risk of being run down from behind on dual carriageways with good visibility. Signs and marshals could not abolish that risk nor could the whole course be categorised as “high” due to that risk. He could not categorise dual carriageways as “high risk” so long as the number of vehicles passing per hour had been assessed within the prescribed levels. There were only 12 vehicles per hour turning into Butterwick Road when it was assessed. CTT could not put signs at every spot where every driver might break the law. He still considered the junction to be low risk. Counsel put to Mr Russell that it was part of his function to reduce the risk to riders caused by the errors of drivers and he refuted this. He accepted that risk assessment generally was aimed at reducing the risk created by human errors but stated that CTT could not govern motorists’ behaviours and errors. Mr Russell stated that if he put as “high” every potential motorist’s errors the risk assessment would be three inches thick and nobody would read it. He had to look for high risk situations. He accepted that marshals, when present, could raise awareness of motorists about the time trials. In summary, Mr Russell considered the risk assessment to be appropriate and that the driver should have taken note of the warning sign at the junction and the previous warning signs and marshals. This was not a high risk junction. In re-examination Mr Russell restressed that the CTT district council consisted of volunteers, none were paid. He was the secretary and after he investigated the 2017 event he took that information back to the committee to discuss it, but he did not make the decision. He said that he was “the tool in the box” not the decider.[25]David Barry gave evidence. His witness statement was dated 4.6.2024. He was elected to the national CTT board. He did not assess the course. All accidents would be brought before the board on a spreadsheet by the board’s lawyers. The insurers were the arbiters of the forward decision making after accidents. The district councils run the sport at their level. In cross examination he admitted that he did not know that the course had been closed by the district council and Club. He accepted that time trials involved cycling at a generally higher speed than normal cyclists. That was one of the reasons why risk assessment was needed. The guidance booklet had been issued alongside awareness courses and conferences. Risk assessment was part of the training provided. Volunteers were given weekend presentations and lectures. He praised the diligence and the dedication of the volunteers. He accepted that risk assessment on the day was a key element of safety. He considered it important for assessors to fill in forms but stressed that time trial organisers generally did it for many years and were dedicated and experienced. He had reviewed the risk assessment dated 2018 and he was confident in Mr Russell. He googled the area and was satisfied that it was appropriate. He did not ask for it to be changed after the 2017 accident. He considered that “low risk” was appropriate for the junction. He stated that the Claimant’s accident had been raised in a CTT board meeting but because it was subject to litigation it was not further discussed.

Assessment of lay witnesses

[26]I was favourably impressed by both Mr Simpson and Mr Russell and I accept their evidence. Both men were clearly dedicated to the sport and were serious and trying their best to perform the responsibilities for which they volunteered to assist members of the public who wished to do cycle time trials in pursuing their passion. In particular, I consider that Mr Simpson was frank and honest in his evidence. He has no great enthusiasm for unnecessary paperwork and included voluminous risk assessment in that category but was, in my estimation, an organised and dedicated time trial organiser who risk assessed the course during the hour before the time trial started in May 2019 and who put out the signs and allocated the marshals. I consider that the decision he and the Club took to place an additional sign at the Butterwick Road junction evidenced the care with which he carried out his volunteering responsibilities on behalf of riders and the Club. I consider that Mr Russell was a man experienced in the production of risk assessment guidance and in carrying out risk assessments, including on highways. He was educated and organised and serious about his voluntary work. I accept his evidence in its entirety. I also consider that Mr Barry was a witness doing his best to assist the court but his involvement was at a higher level in CTT.

The expert evidence

[27]Mark Hill provided an expert accident reconstruction report in March 2020 and a joint report in April 2020 alongside PC Sarah Tribick for Mr Fell’s criminal case. They agreed that the sun and the trees to the left hand side of the Claimant’s route of travel would have made it more difficult for Mr Fell to see the Claimant together with the Claimant’s black cycling clothing and black bicycle. Mr. Hill advised that the shaded area projected over the slow lane eastbound ending about 40 metres before the point of impact. Mr. Hill provided a further expert report for the civil proceedings dated August 2024. In that he concluded that the Claimant would have been cycling on a black bike in the shadow of the trees until “shortly before impact”. He advised that although Mr Fell did not report being dazzled he asserted that the eastbound lane was clear as he crossed and therefore the Highway Code advice on the sun dazzling drivers was not relevant.[28]Stuart Blackwood was instructed by the Club and reported in July 2024. In his opinion the Mercedes driven by Mr Fell travelled 13 metres from the give way line to the point of impact, which would have taken 1.45 seconds at 20 mph. He advised that the Claimant would have been nearly 24 metres away when the first Defendant crossed the give way lines. He advised that Mr Fell had an unimpeded line of sight for 250 metres down the eastbound lane as he turned at the end of the slip road. He advised that the human eye reacts to sunlight and glare but the sunglasses that Mr Fell wore would have mitigated the reaction of the eye. Despite the sunglasses Mr Fell's eyes and vision would be affected by the position of the sun directly overhead of the Claimant over the line of trees. He advised that the trees cast a shadow onto the road and the Claimant would have been in the shadow when Mr Fell entered the slip road, which was 250 metres long, however the Claimant would have been out of the shadow when Mr Fell reached the give way lines.[29]In their joint report Mr. Hill and Mr Blackwood, together with Mr Lemanski, who was the Claimant's accident reconstruction expert, wrote in September 2024 that they agreed that the shadow cast by the trees ended between 60 and 45 metres before the point of impact. Therefore, the Claimant was fully visible to Mr Fell then. They agreed he would have been less conspicuous whilst riding through the shadow. They agreed the police video was not representative of the effects of the low sun because of lens flare and they considered that Darren Moore's photographs, whilst useful, could not fully capture conspicuity. There were other matters of agreement and disagreement but the most important matter of agreement was that the Claimant would have been conspicuous exiting the shade for between 2.7 and 3.6 seconds before impact, at which time the Defendant would have been between 24 and 32 metres away from the point of impact and between 11 and 19 metres before crossing the give way lines. Had he seen the Claimant, Mr Fell would have had sufficient time to brake and slow down to avoid hitting the Claimant.[30]In cross examination Mr. Hill stated he had competed in bicycling time trials himself. He accepted that on the day the riders were started at one minute intervals. He accepted that the Claimant started in position 5 and accepted the data from the Claimant’s Garmin showed that the accident occurred 3 minutes and 39 seconds after he started the race. So, if he started at 7:05 PM the accident occurred at 07:08:39 PM. It was put to him that for Mr Fell to travel the distance between his place of work, having left at the end of his shift at 7:00 PM, to reach the point of impact, he would have had to travel 7.3 miles at much faster than the maximum speed limit. Mr Hill agreed the calculation. He accepted that PC Hardwick's calculation of the length of the shadows was incorrect and that in his reports for the criminal proceedings and for the civil proceedings he had carried over that error and failed to spot it. He only changed his view when he got to the joint expert meetings in the civil proceedings. He accepted that drivers do not need a warning sign for the risks posed by the sun. He accepted that the Claimant would have been more conspicuous once he was out of the shadowed area in the slow lane. He accepted that the photographs provided by Mr. Moore were as good as the Court could get and he accepted that the movement of the Claimant’s legs and his pink flesh, which was unclothed, would have a greater visual attraction to drivers whilst the Claimant was bicycling through the shade. He also accepted in cross examination that there was no excuse for Mr Fell failing to see the Claimant in the last 40 to 60 metres of the Claimant’s approach. In re-examination he said the precise time of the impact depended on the time when the Claimant started the race and if the first racer was not released at 7:00 PM then the time would be later.[31]In cross examination Mr Blackwood stated that his opinion on the time of the accident had changed from 7.18 pm to earlier, as a result of the data from the Claimant’s Garmin. Otherwise, his evidence remained as set out in the joint statement and his report.

Assessment of expert’s evidence

[32]I found the evidence of the accident reconstruction experts to be helpful but it has to be said that Mr Hill made a mistake accepting PC Hardwick’s opinion on the length of the shadows and this rather undermined his approach to the case. I prefer the evidence of Mr Blackwood where they disagreed. I found his approach to have been more carefully measured.[33]As set out above I consider, based on all the evidence, including a careful examination of the photographs of the Claimant’s clothing: which included bright red shoes and a red flash down his cycling shorts, and of course the fact that he has pink skin which was visible on his legs, that Mr Fell was clearly to blame for the impact because he failed to look properly or failed to look at all. He failed to heed the hazard warning signs set out by the Club at the two roundabouts near Wynyard Business Park and village, failed to see the marshals, failed to take into account the Highways Authority signs on the dual carriage way and in particular failed to notice or take into account the Club’s hazard warning triangle near the give way lines at the Butterwick Road junction. I consider that the Claimant was there to be seen and should have been seen and Mr Fell should have stopped at the give way lines at the end of the slip road.

Risk Assessment documents

[34]Two risk assessments were put in evidence in relation to course T105, which was the relevant course on which the Claimant was riding. They were part of a useful pack provided by CTT, gathered together and produced by Mr Russell. It had sections A to I in it. This covered the course details for the start; the police notification; the course map; guidance notes; the course generic risk assessment; the district guidelines on use of courses; the road traffic counts; the accident information; additional supporting information and an amendment record. The guidelines set out that there was a generic risk assessment for the course and that it was provided in a shortened version for ease of reference and understanding. It determined sign placement and where marshals would be placed. It should be used in conjunction with the event “on the day” risk assessment which was to be completed and returned to the district secretary. The risk assessment which was carried out in February 2007 stated that the course started on a lane closed to public vehicles and proceeded onto the road exiting Sedgefield village, then after 245 yards went onto a slip road onto the A689. Then it stayed on the A689 eastwards to the Wynyard village roundabout and then about a mile further on to the Wynyard Business Park roundabout. Here the riders turned around the roundabout and came back down the A689, finishing at the start area. The risk assessment noted that the traffic flows for the course had been measured and were within the CTT guideline of 1000 vehicle movements per hour for a dual carriage way. Identified risks were set out in a table with 5 columns. There were eleven such risks identified and ignoring the start and finish there were 8 such risks. Most were at locations where the riders would be dealing with junctions. The rest was just riding on the dual carriageway which was assessed as “low”. The first junction was the slip road onto the A689. The second junction was the Butterwick side road. The third was a slip road from a farm. The fourth was the Wynyard village roundabout. The 5th was the Wynyard Business Park roundabout. The same risks were identified on the way back in relation to Wynyard village roundabout and the Butterwick Road turn off. In relation to the Butterwick Road junction, on the first half of the course, the location was identified and the hazard was identified as traffic entering from the left. No mention was made of traffic crossing from the westbound lane through the gap in the central reservation. The risk was assessed as “low” but in the column for control measures, traffic crossing the eastbound carriageway from the westbound was specifically mentioned. Mr Russell, who carried out the risk assessment, stated that traffic flow at this junction “is very low”. On the way back for riders travelling westbound the same junction is mentioned but no specific measures were deployed because traffic at the junction was very low.[35]That risk assessment was reconsidered after an accident to Mr Spink in August 2017. The relevant new risk assessment was dated 16th April 2018. Mr Spink’s accident was set out in the course history. The mitigation measures at the same identified hazard spots were those described above including marshals and signs at the start-finish line and a marshal and signs at the Wynyard Business Park and Wynyard village roundabouts. No sign or marshal was required at the Butterwick Road junction.[36]Mr Russell and Mr Barry also provided a risk assessment booklet which described the process. In particular, this described the four steps involved in risk assessment which were: identify the hazards, identify who might be affected by the hazards, identify or assess the level of risk in the hazards and eliminate or reduce the risk by control measures. The guide summarised that accidents that do not occur during the time of year and time of day when the time trials take place should be noted but may have less relevance to the time trials. The guidance advised that accidents during an event must be included in the risk assessment together with the outcome of the enquiry led by the local district committee. This is because new restrictions or mitigation measures might be imposed. As for the relevant mitigation measures the guidance set them out and they were: signage and marshals wearing high viz jackets. These were noted as potentially dramatically changing drivers’ habits and causing them to slow down. As for the assessment of the level of risk there were three categories:
“Low risk: is where other road users would not be reasonably anticipated to impede the normal progress of competitors. Medium risk: where other road users may impede progress, but where the consequences of such interference might be overcome by rider action alone. High risk: where rider action alone is not likely to reduce the risk to low.”
Then, examples were given of risk scenarios. Those in the “low” risk category included where a minor road that carries only light traffic joins a more major road on which the riders are travelling and where a course crosses a small traffic island using the predominant route. Examples of medium risk included where a minor road enters a major road, on which the cyclists are, which carries frequent traffic and where the riders enter a small traffic island using the recessive route. Examples of high risk included where two or more major roads meet at a busy traffic island. There was also guidance on marshals and checkers which included information that it was illegal for marshals to direct or attempt to control traffic or interfere with traffic movement on highways. The guidance on signs in guidance note 17 stated that signage should be placed appropriately and safely with minimum risk to those placing it, with the objective of informing the general public and competitors and other road users that an event is taking place on the highway ahead. It should be clearly visible to approaching vehicles and other road users from appropriate directions and should not be obscured by long grass bushes and trees. In relation to junctions and round-abouts signage should be 100 to 200 metres in advance where the speed limit is between 40 and 70. High risk: where rider action alone is not likely to reduce the risk to low.”

Experts on Risk Assessment

[37]Two experts gave evidence on risk assessment. Doctor Brown gave evidence instructed by the Mr Fell’s lawyers. His conclusions were firstly, that the Club’s risk assessment did not meet the legal requirement of being suitable and sufficient and secondly, that it did not follow the CTT rules. Thirdly, he advised that the signage was not appropriately used and fourthly, that the CTT risk assessment did not identify the junction as posing a specific risk caused by traffic which turned through the gap in the central reservation into Butterwick road. Finally, he criticised the Club for failing to do a risk assessment on the day. Mr. Brown mentioned the Factories Act and the Health and Safety at Work Act and the Management of Health and Safety at Work Regulations in his report. He went through the CTT guidance and summarised the CTT annual report from 2019. He noted the total number of accidents in time trials in 2019 was 86 and in 2018 it had been 103. Only 14 were on dual carriageways and only 20 involved a motor vehicle. Therefore, assuming 150,000 rides per annum, this percentage was very small. He relied on the Health and Safety Executive guidance: INDG163 which set out the five steps to risk assessment. This included the steps I have set out above in the CTT guidance and in addition required recording and reviewing risk assessments. He advised that rider action should not be relied upon as a mitigating factor and raised concerns about riders using “Aero bars” which put their hands further away from the brakes. He advised that for the Butterwick Road junction the risk assessment was wrong to categorise the risk as “low” and he based that opinion on a combination of the previous accident, the riders’ speed and position and the reduced visibility of riders when the sun is low in the sky due to the presence of trees casting shadow. He advised that a marshal was required to raise awareness for motorists and that a better choice of coloured clothing would be safer.[38]Professor Ball was instructed by the Club and he reported in June 2024. He concluded that the risk assessment done by CTT was suitable and sufficient and followed established procedure. He opined that whether or not a sign was put at the Butterwick Road junction was a matter for the Club. He relied on ISO 31010 (2019) which set out that there were many methods of carrying out risk assessments. He noted that the Management of Health and Safety at Work Regulations 1999 did not provide a fixed method. Those Regulations permitted a level of detail proportionate to the risk and complexity of the relevant activity. He advised that the bigger organisations carried out quantitative analysis for risk assessments but smaller organisations carried out qualitative assessments, using words like:
“low”, “medium” and “high”
. He praised the CTT risk assessment booklet and noticed that the main control measures were at the bottom of the hierarchy of control measures in industry involving only signs and marshals. As for the specific risk assessment for the course, carried out by Gavin Russell, Professor Ball noted this was a normal dual carriageway and he considered that the risk was “low”. As for the Butterwick side road, physically the risk was the same as any access point from the left hand side. He noted that marshals were put on the two roundabouts and signs were put out on the approaches to those as well. He noted that it was essential to check the course before each race and that this should be done. He considered the 2018 risk assessment to be clear and well laid out with the sequence of hazards identified and the controls in the final column. He noted that there was no definition in law of “suitable and sufficient” for risk assessments. He considered that the qualitative assessment of risk at low, medium and high was suitable and sufficient and noted that it depended on anticipated points where normal progress of riders would be impeded by other vehicles. He stated that the risk assessment was based on years of experience, maybe decades, and that CTT’s guidance constituted good practise in the field. He noted the Club identified the junction. He rejected each of Mr Fell's criticisms. He did not accept the risk assessment of the road junction was inadequate. The volume of traffic was important and this was well within the CTT guidelines for movements per hour. Taking into account the other relevant factors at the site, namely the length of the field of vision, the lack of dips or hills in the road, the lack of obstacles or bends, the speed and the road surface, for this junction he agreed with “low”. As for the previous accident, there had only been one in the 10 years before the 2018 risk assessment and one accident does not automatically change the risk. He advised there was nothing special about this junction to increase the risk and nothing special about the accident involving Mr Spink and a tractor either. He did not accept Mr Fell's criticism that there was no consideration of traffic turning right off the dual carriageway. He pointed out that this had been assessed but the decision had been taken by CTT not to use signage or marshals there. He considered that CTT had considered the speed of riders. They had suggested fluorescent numbers on the backs of riders because the main risk to riders on dual carriageways came from behind. As for the allegation that CTT had failed to consider the sun, Professor Ball advised that the sun is always a hazard for drivers and was not specific to time trials. Drivers had to adapt their driving according to the weather and circumstances. As to the lack of a reason for placing a sign at the Butterwick Road junction, Professor Ball accepted that it was a fact there was no note in the generic risk assessment of the Club's decision to put a sign out. He noted that this was a precaution carried out by the Club due to the prior road traffic accident and it did no harm, but he did not consider that it was a requirement to satisfy adequacy or sufficiency of the risk assessment. As for the placement of the sign, he raised the risk to organisers of walking along the central reservation unprotected to place and collect the sign. He noted that the risk assessment considered traffic turning off the westbound carriageway into Butterwick Road in the 5th column of the risk assessment.[39]In September 2024, in the joint report, Doctor Brown and Professor Ball agreed that it was neither necessary nor desirable to produce large amounts of paperwork for risk assessments. They agreed that only risks which were reasonably foreseeable needed to be assessed. Professor Ball pointed out that Gavin Russell was a member of the CTT board and properly prepared the risk assessments but Doctor Brown had not seen “compelling” evidence on the point. They agreed that CTT guidance note 22 identified a duty of care owed to members and others who might be harmed by an event. That duty recognised that reasonable precautions were to be taken to ensure safety. They agreed risk assessments should be reconsidered when there had been a significant event. But that such events might not necessarily lead to a change in the risk assessment. They agreed that traffic count was an important consideration. They agreed that on the day risk assessment was required but disagreed on whether a record of that was needed if no change was required. They disagreed on whether the risk assessment identified the relevant junction. Doctor Brown asserted the risk assessment did not recognise the Butterwick road junction. He did so because the distance of it from the start line was 1.8 miles and yet it was stated as 2.5 miles on the risk assessment. Professor Ball pointed out that column five clearly indicated the junction and traffic turning off the dual carriageway into Butterwick road. Doctor Brown advised that the risk assessment had a serious oversight in failing to assess the risk of traffic turning right off the dual carriageway into Butterwick road. Professor Ball disagreed advising that CTT clearly had identified the junction and the right turn and had assessed it as low risk. This being a reasonable assessment. As for the 2017 accident, Professor Ball's opinion was that previous incidents could lead to a change in risk assessment but that there was little to suggest the Butterwick road turn was a hotspot. The experts agreed that the only control measures were marshals with high viz clothing and signage. Doctor Brown advised that the sign at the junction should have been placed in the slip lane and that it was ineffective at the give way lines. Professor Ball considered no sign was required but as a precautionary measure the Club were reasonable in placing it and that flexibility of position was permitted. The experts agreed that the bottom of the sign was obscured by grass. Doctor Brown criticised the location and the height of the sign. Professor Ball considered the sign was attention grabbing and that, at the give way lines, when the first Defendant would have been driving at his slowest and looking down the eastbound carriageway, that would have afforded a longer view of the sign in his field of vision. The experts disagreed on the categorisation of the level of risk. Doctor Brown considered the risk should be “high” and Professor Ball advised that the junction could not intrinsically be considered a “high” risk junction because it was well engineered with a slowing down lane, advanced highways authority signage, clear road markings including give way lines, unimpeded views to the West and North and on relatively level ground. Professor Ball did not find that the CTT sub-definition of risk based on whether a cyclist could by his own actions reduce risk was the correct point. Doctor Brown agreed. However, Professor Ball considered that the definition of “low” risk was sensible and reasonable. The experts agreed that vehicle drivers had to adapt their driving to the varying conditions, including low sun. Doctor Brown advised that that “on the day” risk assessment should consider the effects of low sun, Professor Ball wrote that every day the sun is close to the horizon and affects road users. Consequently, it is such a common occurrence that road users do not need to be reminded by signage or marshals. Doctor Brown advised that a marshal in high viz clothing was appropriate to compliment a sign at the junction. Professor Ball did not consider a marshal was necessary and advised that the CTT risk assessment was sufficient. The experts agreed that risk assessment had to be suitable and sufficient. In paragraph 9 the experts came to their overall conclusion about whether the CTT risk assessment process was suitable and sufficient. Doctor Brown advised that the risk assessment did not meet CTT’s own guidance and hence was not sufficient or suitable. Professor Ball advised and that the risk assessment did not deviate from CTT’s guidance in any way which had any bearing on the accident. He advised that CTT's approach to risk assessment was suitable and sufficient for time trialling.

Assessment of the expert witnesses

[40]I consider that Doctor Brown was relying too heavily upon and probably imposing the standards he considered were required of a large employer in his approach. He mentioned the Factories Act 1961, the Health and Safety at Work Act 1974 and the Management of Health and Safety At work Regulations 1999 in his report. He took an overly strict and slightly unrealistic approach to failures by the Club and CTT to follow the guidance issued by CTT, as if that guidance were equivalent to a Regulation issued by Parliament. One example of that approach related to the positioning of the sign at the Butterwick Road junction. His advice to this Court was that unless the sign was placed 100-200 metres upstream from the give way lines it was inadequate and hence a breach of the duty to protect riders by suitable and sufficient mitigation measures. This approach lacked insight into the reality of the situation. A driver going 50-60 mph and turning into the slip lane should have seen a sign at the start of the lane on the central reservation, but not for long at that speed. Compare that with the driver who had slowed down along the 250 metres of the slip lane and turned the corner towards the give way lines. That driver should, whilst turning at the end of the slip lane, be looking to his left up the two lanes of the oncoming eastbound carriageway for other road users. That driver would have a view of a long stretch of the carriageway, over the grass central reservation. With the sign placed where Mr Simpson had put it, the yellow triangle was right in the driver’s field of vision at that time. The actual sign is shown below. Please bear in mind that this photo was taken on the evening of the accident, at the scene, after the sun had gone down, so it was darker, but still clearly visible.[41]The second defect in Doctor Brown’s approach was his unjustified criticism of the locations identified by Gavin Russell on the risk assessment. He sought to say that Mr Russell had in some way ignored Butterwick Road altogether, only because Mr Russell had mis-recorded the distance from the start line. This approach ignored the words on the risk assessment and the geography of the course. There was only one side road on the course. Mr Russell, Mr Simpson and the Club would have had to have been hugely sloppy to have overlooked the only side road in their risk assessment and I find that they did not and were not.[42]The third defect in Doctor Brown’s approach was in relation to his opinion that all “on the day” risk assessments should include assessment of the need for control measures to counteract the movement of the sun in the sky. Whilst I accept that on certain roads, with certain geographic layouts and shapes, there may be a need for such a factor to be assessed, on this sweeping, curved and pretty flat country road, there is nothing exceptional which, in my judgment, could trigger the requirement for that assessment of the angle of the sun and the effect that it might have on drivers. It seems to me that this would be taking risk assessment by CTT and the Club beyond the boundaries of reasonableness.[43]Interestingly, having used terms such as “it would have been better if the Club had ...” in his evidence, he was asked if his criticisms amounted to him saying that the Club or Mr Russell had been “negligent” and he disavowed that word. He also accepted that his suggested steps were not mandatory.[44]I preferred the evidence of Professor Ball. His approach was more grounded in reality and I was impressed by the way he gave his evidence. He was careful, calm, thoughtful, experienced, authoritative and he conceded points reasonably in cross examination. Where the experts’ evidence clashes, I accept the evidence of Professor Ball.

Findings of fact

[45]I make the following findings of fact on the balance of probability from the evidence before me.[46]CTT gave guidance to the Club on risk assessment and authorised the use of the course. CTT advised on the measures to put in place to mitigate the risk to riders from the movements of other road users. The 2007 risk assessment was based on many factors which included the premise that other road users were expected to comply with the law and the Highway Code governing driving. Mr Russell considered the risks he was guarding against could effectively be split into two parts:(1) vehicles with the “right of way” impeding riders; and(2) vehicles without the right of way negligently failing to follow the Highway Code and so impeding riders. All junctions on the course were listed and assessed. Geography, traffic flow, layout, right of way and major and minor road status was considered. If the rider had right of way on the major road this was taken into account as lessening the risk. The risks of just riding along the dual carriageway (of being hit from behind) were also assessed. Whilst recognising that there was a risk of drivers breaking the law or being careless, if a rider had right of way, the risk was generally assessed as “low” on the A689 at the side road and each farm track junction. For roundabouts it was also “low” because CTT required marshals and signs to be placed on the approaches to them so that drivers were aware of the time trials. For the start and finish, CTT required marshals and signs, too. But for riding along the dual carriageway and passing the farm tracks and Butterwick Road, due to the low volume of traffic and the layout of the road, the risk was categorised as “low”.[47]CTT reviewed the risk assessment after an accident at the Butterwick Road junction involving a tractor and Mr Spink, a time trial rider, in August 2017. Having re-assessed the junction, the traffic volumes and the factual matrix of the accident, Gavin Russell made a report which was sent to the district council and the Club. The tractor driver had admitted careless driving – he should have given way. Mr Russell discussed it with Mr Simpson. No note was made of the discussions. Mr Russell himself did not consider that the categorisation of the junction should be changed so he left it as it was, but he reported to the Club pointing out the low sun had been an adverse factor in the accident and he offered three options for consideration: stop using the course; add a sign or add a marshal at the junction. Mr Simpson chose to add a sign.[48]In the event, on 23.5.2019, Mr Fell failed to see the hazard warning signs informing him of the cycling event at Wynyard Business Park and at Wynyard Village. He failed to see the marshals with high viz jackets at both roundabouts too. He did not adjust his driving for the Highways Authority signs 500 m before the slip lane warning of cycling, horses and pedestrians. Finally, as he drove down the slip lane at 50 mph, slowing to around 20 mph, Mr Fell failed to see or register the yellow warning triangle with a bike on it and then he drove across the eastbound lanes at around 20 mph and never saw the Claimant on his bicycle, despite the latter being in the sunshine for 40-60 metres before impact.[49]I find that the sign at the junction was clearly visible to drivers turning right and that it showed a bicycle, but the wording at the bottom was partly obscured by grass. However, I find that any reasonable driver would have realised that such a sign did not relate merely to random cyclists riding alone on the dual carriageway and so related to some sort of cycling event being held at that time.[50]If a sign had been placed at the entrance to the slip lane, I find that Mr Fell would not have noticed it. If a marshal had been positioned on one of the central reservations in a high viz jacket, it would not have made any difference to Mr Fell’s driving. On balance I do not find that Mr Fell would have registered the presence or significance of the marshal. The Law

Duty of care

[51]The Club and CTT denied that there was any duty of care owed in law in relation to the risk assessment process. In evidence the witnesses called by the Club accepted that the Club and CTT (who have the same insurers, so were not sued), owed a duty of care to its riders taking part in time trials held on public roads, when carrying out risk assessments.[52]In tort law a duty of care arises in many situations. Where established case law has identified the duty, there is generally no need for further discussion, for instance road users owe a duty to each other and employers owe a duty to employees. Where there is no such duty established by case law, a three-stage test:(1) reasonable foreseeability,(2) proximity and(3) fair, just and reasonable, has been expounded and later criticised and modified: see Clerk and Lindsell on Torts, 24th Ed. at para 7-15 to 7-28. The starting point for determining whether there is such a duty is usually the judgment of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at page 580:
“In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. … At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of are, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour.The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
[53]Lord Bridge in Caparo v Dickman [1990] 2 AC 605, at page 617 ruled that:
“But since the Anns case a series of decisions of the Privy Council and of your Lordships' House, notably in judgments and speeches delivered by Lord Keith of Kinkel, have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope: see …. What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it A is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give "them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”
[54]I take into account how powerless the Club was to affect drivers’ conduct on the highway. The Club had no power and no control over the public highway itself. It had no power to erect permanent signs, put out cones or direct traffic. Despite this lack of power, if this case had concerned acts or omissions by the Club which had directly injured the Claimant, for instance by failing during the “on the day” risk assessment, to see and note a huge pot hole in the slow lane of the A689, or a large patch of black ice, the analysis would be simpler. In my judgment, in relation to risk assessment of those direct hazards, the Club had a duty to take reasonable care, through risk assessment and implementation of reasonable warning measures to the riders, to avoid acts and omissions which would foreseeably injure the riders. For instance, by telling the riders not to ride on that part of the lane and putting out signs for the riders before the pot holes/black ice. The duty would arise because the Club and the riders are in close proximity, damage would be reasonably foreseeable and it would be reasonable, fair and just to impose the duty.[55]However, in this case I am concerned with a risk assessment, the relevant part of which was aimed at potential risks caused to riders by third party negligence on public roads, not directly by the Club’s acts or omissions. The potential control measures are all simple visual warnings to drivers of other vehicles about the existence of the time trial on the road. This provides some protection for the riders against the third party drivers’ potential negligence, which could foreseeably injure the riders if they were unaware of the time trial. This context is important and feeds into both existence of the duty of care and the scope thereof.[56]I take into account that the riders entrust the choice of course, the time of the trial, the risk assessments and the warning measures to CTT and their Club. In my judgment, that trust and the circumstances create a relationship of close proximity. In addition, there is a foreseeable risk of harm to riders on public roads from the drivers of third party vehicles who may be careless or thoughtless and are unaware of the time trial. The only issue I really need to decide is whether it is just, reasonable and fair to rule that the Club (and CTT) owed the riders a duty of care when carrying out the relevant parts of the risk assessments, relating to the behaviour of third party drivers. On balance, I do consider that it is just, reasonable and fair to recognise the existence of a duty of care on the Club when carrying out the risk assessments in relation to the possibility of coming into contact with negligent third party drivers and I so rule.

The scope of the duty of care and the standard of care

[57]When considering the scope of the duty of care and the standard of care, I take into account all of the circumstances and in particular the lack of control which the Club could exert over the highway and traffic passing thereon. I take into account that the risk assessment responsibilities of the Club and CTT relevant to the issue in this claim related to informing third party drivers of the existence of a cycling event and thereby was focussed on making them aware of the presence of bicycles riding fast on the A689.[58]The following matters are also particularly relevant to scope and standard of care when carrying out the risk assessments of the course. The Club is not a business and is not an employer. It does not have a profit making element from which it could deduct the cost of or fund extensive surveys or experts to carry out risk assessments. All those involved gave their time for free, for the love of the sport and to help each other enjoy the sport.[59]I also take into account the degree of risk in the activity and the level of risk when assessing the scope of the duty of care and the standard of care. Bicycle riding on public roads is inherently dangerous but people love it. Riding bicycles is encouraged in cities and in the country. Sport is good for health. Accidents happen because of many factors: road conditions, other drivers’ errors, rider errors, the geography of the roads and junctions, the weather and more remote matters, for instance escaped or wild animals and drivers’ epilepsy. Accidents also happen at speed. I have been provided with no information about the incidence of accidents nationally between bikes and vehicles. Time trials may be the same in terms of the incidence of accidents, or less or more risky than normal bike riding, depending on the epidemiological evidence and facts. Looking at the figures for accidents with motor vehicles from the 2019 CTT annual report, the number was very low, but no comparison was made by any of the experts with the incidence nationally for bicycle accidents with motor vehicles, so I do not know if bicycle riders are statistically safer in time trials or less safe.[60]If a standard of care in relation to risk assessments which is too high is imposed on time trial clubs, people may be put off contributing for free or at all. Insurance premiums will rise. Volunteers are not looking to be sued, they are looking to help others. I find that this Club and CTT itself, was carrying out an activity for the benefit of the cycling members of society. The people involved, Mr Russell and Mr Simpson, were giving their time for free as volunteers. It is relevant when considering the standard of care to take into account the Social Action, Responsibility and Heroism Act 2015. This provides as follows:
“1. When this Act applies This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care. 2. Social action The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. 3. Responsibility The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others.”
[61]No previous authority interpreting this Act was put before me. It seems to me that this Act requires me to consider:(1) whether the Club and CTT were acting for the benefit of members of society, and(2) whether the Club and CTT evidenced a predominantly responsible approach towards protecting the interests of the Club’s members. If those factors are proven, then I postulate the question: what effect does that have on the Court’s determination of the scope of the standard of care? The answer to which is, I must take this into account when setting the standard of care when determining breach. It may also be relevant to the scope of the duty of care. I can say, without any reservation, that I find as a fact that Mr Simpson, Mr Russell, Mr Barry and the Club satisfied both factors from the Act, on the evidence before me.[62]I must also take into account the Compensation Act 2006, which provided as follows:
“1 Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the Defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might– (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.”
[63]The editors of Clerk and Lindsell 24th Ed. at paras 7-193 are a little scathing about the substance of the 2006 Act and whether it added anything to the law, in the light of the decision in Tomlinson v Congleton [2003] UKHL 47. Lord Hoffman gave guidance on the test relating to the duty of care imposed under the Occupiers Liability Act 1984 on occupiers towards trespassers who take a risk or carry out a dangerous sporting activity on the land. At para. 41 he pointed out that when assessing the standard of care, the Court must take into account in the balance:(1) the social value of the activity (using a beach and a lake) and(2) the importance of allowing adults with capacity to decide for themselves whether to take risks. At paras. 45-47 he ruled thus:
“45. I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. 46. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ, ante, p 62b-c, para 45, that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877 ) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 . 47. It is of course understandable that organisations like the Royal Society for the Prevention of Accidents should favour policies which require people to be prevented from taking risks. Their function is to prevent accidents and that is one way of doing so. But they do not have to consider the cost, not only in money but also in deprivation of liberty, which such restrictions entail. The courts will naturally respect the technical expertise of such organisations in drawing attention to what can be done to prevent accidents. But the balance between risk on the one hand and individual autonomy on the other is not a matter of expert opinion. It is a judgment which the courts must make and which in England reflects the individualist values of the common law.”
[64]It is clear to me that the scope of the duty of care is to be determined whilst taking all matters, including these factors, into account and the standard of care set by the Courts, when considering breach of duty, is also affected and informed in part by these factors.[65]I rule that the scope of the duty of care imposed on the Club (and CTT) in relation to their risk assessment to protect riders and organisers, both generically and on the day, was a duty to take reasonable care:(1) to identify the relevant, material hazards, and(2) to assess the level of risk posed by those, and(3) to identify the reasonable mitigation measures within their power to reduce the risk, and(4) to inform members of the Club of the assessment in a simple and clear manner so that the members would implement the control measures. In addition, the Club and CTT had a duty to review the risk assessments after significant events/changes in the course and at reasonable periods.[66]Furthermore, I rule that the standard of care to be applied when exercising the duty of care during the risk assessments by CTT and the Club was that of a reasonably competent and reasonably informed volunteer.

Applying the law to the facts

[67]I shall take the main allegations against the Club in turn.[68]Failure to risk assess the Butterwick Road junction at all. I dismiss this pleaded assertion because I find that Mr Russell did risk assess the junction and took into account the risks involved in cars driving down the slip lane and turning into the side road as well as the risk of those turning out onto the A689.[69]Breach of duty by incorrect categorisation of the risk level. I consider that the assessment method used by Mr Russell and hence CTT and the Club was reasonable and logical. As explained above, he inspected the whole course. He stopped at each junction and roundabout. He considered a wide range of factors, including volume of traffic. He took into account the road layout, traffic flow, time of day, geography, visual sight lines, visibility, road surfaces and rights of way. He considered that the risks he was guarding against could be split into two types:(1) vehicles with the “right of way” impeding riders; and(2) vehicles without right of way negligently failing to follow the Highway Code and hence impeding riders. For the former, for instance on roundabouts, the cyclist should mitigate the risk by following the Highway Code and giving way to traffic with right of way. For the latter, in which the rider has right of way, the mitigation is provided by the law and the Highway Code and so the risk should be lower and is not dependent on rider compliance. He advised that the use of signs and marshals was required at the start and finish and at both roundabouts due to right of way issues and the road layout and in particular the need to inform third party drivers of the existence of the event.[70]Mr Russell noted that neither the farm track running into the A689 just further on from Butterwick Road, nor Butterwick Road itself, carried a high volume of traffic at that time of day. The latter had good visibility at the junction for a long way down the A689 for traffic turning out of the side road and for traffic turning into the side road. I accept the evidence of Professor Ball that there was nothing exceptional or hazardous about this simple junction, particularly in the light of the clear “give way” lines painted on the slip road surface. I reject Mr Fell’s submission that the Club had to assess the risk as “high” on the basis that drivers could possibly be negligent and could break the law and cross when it was not safe. It is the social and legal responsibility of each driver to follow the Highway Code. It is not the responsibility of the Club to force or persuade third party drivers to fulfil their responsibilities. Drunk drivers, drugged drivers, stressed drivers, distracted drivers, all drive on our roads. In my judgment, it is not reasonable to expect the Club to mark every side road or junction as “high” and assign a marshal to each just because of such errant behaviour or to do so only when the sun is shining from the West.[71]Nor do I accept that the occurrence of a previous accident at the junction should have changed the risk assessment. The mere occurrence of one piece of admittedly negligent driving by one tractor driver is not a predictor of negligence by another driver at the same spot later. For 10 years before then no driver had been negligent there in relation to the time trials. With trials being held weekly from May to August each year that would total 160 time trials with say 30 riders in each trial, which would be 4,800 riders passing Butterwick Road eastbound. Some, at least, of those riders would have been passing vehicles turning right into Butterwick Road and the sun always goes down in the West. More would be required to justify a change in the assessment of the hazard at that spot. The fact that bright sunlight and shade on the slow lane from trees that August was also a factor in the 2017 accident, was not sufficient in Mr Russell’s opinion to override the tractor driver’s duty to give way. He pleaded guilty. Nor did the sun and shade amount to a sufficiently significant additional risk at the junction, over and above the normal risks on every public road in Teesside which had trees or houses or any tall structure alongside the road. Those figures did not add up to a significant hazard at that junction for the risk assessment purposes. Nor did the fact that the Club shut the race down after the Claimant’s accident evidence any change in that assessment, in my judgment. I accept as a fact that this decision was taken in deference to the seriousness of the injuries to Ben Hetherington, not because of the perception that this junction had been proven dangerous. I accept Professor Ball’s expert evidence on this issue.[72]The weather, the sun, the rain, the clouds and darkness affect every driver. Driving can be challenging and can be less safe in challenging weather. That applies to every road in the country. Any East – West road in the Teesside area will have had similar conditions on that day or any sunny day, at 7 pm in the evening, when cars are turning into or out of side roads and looking to the West and there are trees beside the road. The sun sets in the West every day. I reject the submission that, on the facts of this case, Mr Russell or Mr Simpson, either in the generic or in the “on the day” risk assessments, had to write that the sun was a risk which had to be controlled by the meagre measures available to the Club: a sign or a marshal.[73]The limit of the scope of the Club’s duty of care on risk assessment for this junction, in my judgment, was to use reasonable efforts to bring the existence of the time trial to the notice of drivers on that road in so far as that was reasonably possible and so, to seek to reduce the risk that drivers would “ignore” or fail to look for cyclists when driving and turning on the course. That was most effectively carried out by putting signs at each end of the course and on the roundabouts. I consider that the categorisation of the hazard for the Butterwick Road junction as “low” was a suitable and sufficient assessment without the need for any additional sign there.[74]Failure to implement reasonable control measures. It follows that I do not consider that the measures put in place by the generic risk assessment were insufficient or inadequate reasonably to bring the time trial to the attention of drivers on the day. In any event the Club added a non-essential additional sign at the junction.[75]Failure to carry out an on the day risk assessment. I have found as a fact that Mr Simpson did the on the day risk assessment. He did not fill in the form because nothing untoward was found. I do not consider that it was a breach of his duty of care to fail to fill in a blank form to say nothing. Mr Russell gave evidence that he did not want to receive forms with no worthwhile information on them from this Club or other clubs in the district.[76]Typing and word placement errors on the generic risk assessment. I do not consider that the CTT’s failure to write the hazard which they clearly did identify, from traffic turning right off the A689 into Butterwick Road, in the second column of the risk assessment form constituted a breach of duty. We are not talking about the Shell Corporation here. This work was done, after work, in Mr Russell’s spare time. The words in the 5th column and the entry for the return journey evidenced what Mr Russell said in his evidence. The hazard was considered. The error in recording the distance from the start line to the junction was minor and irrelevant. I find, by inference, that all riders knew perfectly well what the entry referred to. On the evidence, I find that Mr Simpson and the organisers fully understood it too.[77]Grass and height of sign. I have found that the grass did obscure the lower part of the lettering on the sign at the Butterwick Road junction. I have also found that drivers would reasonably know very well that the sign meant that a cycling event was being held. Therefore, I do not consider that placing the sign on the grass was a breach of the standard of care required by Mr Simpson when putting out the sign to warn third party motorists. The sign could have been placed a little higher and could have been bigger, but I accept Mr Simpson’s evidence that it would have restricted a drivers’ view a bit more if it was higher or bigger. I consider that it was big enough to serve its purpose.[78]Causation. If I am wrong and the Club were in breach of their duty of care because they fell below the requisite standard of care in failing to put a bigger sign up or a sign at the start of the slip lane or failing to site a marshal at the junction, taking into account my finding that Mr Fell would not have taken notice of or seen a marshal or a sign placed at the start of the slip lane, I do not consider that any such breach would have made any difference on the day. Mr Fell did not see the marshals when he drove round the two roundabouts near Wynyard. He also failed to see the signs placed on the approaches to those. He failed to take into account the Highway Authority’s signs 500 metres before the junction and he failed to see or take into account the sign at the give way lines at the junction. I do not consider that any of the pleaded breaches would have been causative.

Conclusions

[79]I dismiss the Part 20 claim against the Club for the reasons given above. In summary, whilst I consider that the Club and CTT did carry a duty of care when performing the generic risk assessment to ensure, so far as they reasonable could, that the time trial was brought to the attention of road users by signs and marshals, I also consider that they discharged that duty by carrying out the 2007 and 2018 risk assessments properly and sufficiently. I consider that Mr Simpson’s “on the day” risk assessment was done and was adequate and sufficient.[80]The Club’s decision, made in 2017, to place a sign at the Butterwick Road junction, was an additional notice to other road users and was evidence of how carefully they considered their duty of care, but it was neither necessary nor required to satisfy the simple standard of care within the scope of the Club’s duty of care. This was a voluntary organisation carrying out tasks for free for the benefit of members of society and the standard of care placed upon them in law is not so high that it would discourage such beneficial voluntary activities. END