Wattleworth v Goodwood Road Racing Company Ltd & Ors [2004] EWHC 140 (QB)

Case No HQ01X04617

[2004] EWHC 140 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 4 th February 2004

Before

THE HONOURABLE MR JUSTICE DAVIS

Between

Elisabeth Ruth WattleworthClaimant

(1) Goodwood Road Racing Company LimitedDefendants

(2) Royal Automobile Club Motor Sports Association LimitedDefendant

(3) Federation Internationale de l’AutomobileDefendant

Robert Glancy QC and Stephen Killalea (instructed by Hughmans) for Claimant

Anthony Barker QC and Malcolm Duthie (instructed by Paris & Co) for first Defendant.

Graham Eklund QC and Bruce Gardiner (instructed by Edwards Davies) for second Defendant

Justin Fenwick QC and Prashant Popat (instructed by Mayer Brown Rowe & Maw) for 3 rd Defendant

Hearing Hearing dates :Wednesday 3 rd– Friday 19 th December 2003

Judgment

Mr Justice Davis :

Introduction

[1]On the morning of the 5th November 1998 Simon Wattleworth was driving his Austin Healey car on the Goodwood motor racing circuit. As he came out of the second part of a bend known as the Lavant bend he lost control of his car, collided with a tyre-fronted earth bank on the inside of the track and was killed.

[2]These proceedings were commenced on the 2nd November 2001. By them, his widow, Ruth Wattleworth, suing on her own behalf and as administratrix of the estate of Mr Wattleworth, claims damages from one or more of the three Defendants. These are the Goodwood Road Racing Company Limited (“Goodwood”) the owners and operators of the circuit; the Royal Automobile Club Motor Sports Association Limited (“the MSA”); and the Federation Internationale de l’Automobile (“the FIA”). It is alleged that Goodwood was in breach of the common duty of care owed by it to Mr Wattleworth under the Occupiers’ Liability Act 1957. It is alleged that the MSA and/or the FIA owed a duty of care in tort to users of the Goodwood circuit, including Mr Wattleworth. It is alleged that the death of Mr Wattleworth was caused by the breach of the duty of care on the part of one or more of the Defendants. In essence, the allegation is that the death of Mr Wattleworth was caused by allegedly negligent design or selection of the tyre structure fronting the bank at the relevant part of the Lavant bend. The MSA and the FIA deny that they owed any duty of care to Mr Wattleworth. All the Defendants deny that they in any event were in breach of any duty of care. Causation is also denied. In addition, defences of volenti and contributory negligence are raised.

[3]The trial before me, which lasted some two and a half weeks, was confined to the issues of liability and causation. It was agreed that the issue of damages be left to a further hearing, depending on the outcome. A considerable amount of documentary evidence was placed before me. I also received evidence from a number of witnesses, including expert witnesses as to track safety, accident reconstruction and neurosurgery. In addition, I had the benefit of a view of the circuit (and including, in particular, an inspection of the Lavant bend), undertaken at the invitation of all the parties.

[4]The background facts, as I find them to be, are as follows.

The Goodwood Circuit

[5]The Goodwood circuit is a part of the Goodwood estate in Sussex. The estate is very extensive. There is a holding company (Goodwood Estate Company Limited) and various subsidiary companies through which the various operations on the estate are conducted.

[6]The Goodwood motor racing circuit was originally established by the Ninth Duke of Richmond in 1948. It was used for motor racing between 1948 and 1966, when motor races as such were discontinued. The inside of the circuit is in fact laid out as an aerodrome, which remains in use.

[7]From around 1991, the Earl of March (son of the Tenth Duke of Richmond) became actively involved in the various Goodwood companies. He had had a lifelong interest in motor racing (and had become President of the British Automobile Racing Club in 1991) and formed the idea of seeking to reopen the circuit as a motor racing circuit, albeit with its old “feel”. In 1993 he inaugurated at the estate, although not on the circuit itself, what was known as “the Festival of Speed”; and eventually in September 1998 an event, known as the Revival Meeting, which appeared on the International Racing Calendar, brought the circuit back into prominent use as a motor racing circuit: the racing being designed for historic or vintage cars. In addition, the circuit had in the meantime been used for training (with qualified instructors), testing and events known as “sprints” (involving timed laps); and the circuit was also hired out to companies or individuals or groups of individuals for what were known as “track days” – whereby individuals or groups of individuals could collectively drive around the track, albeit not by way of racing. The circuit itself was at the relevant times and is owned and operated by Goodwood, the First Defendant.

[8]As President of the BARC, Lord March became acquainted with Mr Dennis Carter, Chief Executive of the BARC. Mr Carter was and is immensely experienced in motor racing matters. He was, among other things, an international steward of the FIA and an International Clerk of Course; he had become Competition Manager of the BARC at Thruxton Race Circuit and also was a member of the RAC Motor Sports Council. Lord March told Mr Carter of his plans to reintroduce motor racing to the Goodwood circuit.

[9]Mr Carter recommended Lord March to contact the MSA. He put him in touch with Mr Derek Ongaro, the Track Inspector employed for UK events by the MSA at that time. There was an initial assessment meeting in 1993 to consider whether it would be possible to bring the Goodwood circuit up to a standard acceptable to the MSA (which would in due course be requested to issue a track licence for the contemplated events). The initial assessment was broadly encouraging, and thereafter there was a whole series of meetings. Much of the involvement on the part of Goodwood was undertaken by Mr Anthony Houghton, who joined the Goodwood organisation in 1987. Initially Mr Houghton’s involvement was with the aerodrome (his own background being in the RAF) but ultimately he was promoted General Manager; and he had overall day-to-day control of Goodwood Road Racing Company Limited, of which he was a director: albeit he himself had no background expertise in motor racing.

[10]The circuit had the benefit of planning permission for motor racing. However at the time there were in existence noise abatement notices issued by the local authority which effectively prohibited the use of the circuit for motor racing as such; albeit the training and testing days and track days and “sprints” could be accommodated within the notices. Thus one problem that had to be addressed, if the circuit was to be restored to use for motor racing, was the issue of noise abatement.

[11]Throughout this time there were numerous meetings. Lord March himself took a keen interest. A wide range of disciplines (in terms of design, planning, surveying, landscaping and so on) was assembled. There was extensive consultation. Mr Carter was closely involved and a Mr David Nye, a motor racing historian with extensive knowledge of the Goodwood circuit, attended many meetings.

[12]The minutes of the various meetings demonstrate what I was also told in evidence and which I readily accept: that Goodwood regarded safety issues as being of paramount importance. It was for that reason in particular that it liaised closely with the MSA. As Mr Houghton told me, Goodwood was looking for “the best expert advice” in organisation and safety terms and so consulted the MSA: from whom, as it also knew, it would require a licence for the track as well as permits for the events that Goodwood had in mind.

[13]By December 1996 the proposals were becoming well advanced. There was a meeting on the 4th December 1996. Those present included, among others, Lord March, Mr Houghton, Mr Nye and Mr John Symes. Mr Symes was at that time Safety and Environmental Executive (he is now Technical and Risk Control Manager) of the MSA, which he joined in 1992. Mr Symes had and has enormous experience of motor racing, with particular emphasis on safety issues. He holds a degree in mechanical engineering and had for seven years, before he joined the MSA, been operations director of Brands Hatch Leisure plc, responsible for the operation and maintenance of four circuits. He was also a member of the FIA Circuits (formerly Safety) Commission. Mr Symes had taken over from Mr Ongaro at the MSA who had retired through ill-health. This was Mr Symes’ first meeting with Goodwood. He naturally took the opportunity of inspecting the circuit. His approach was that, as with all circuit inspections undertaken by him, he was endeavouring to see that the risks were cut down to a minimum.

[14]The lay out of the Goodwood circuit involves drivers going in a clockwise direction. The course is flat and the circuit is considered to be one of the faster circuits of its type in the UK. From the start the driver proceeds down a straight section to a right bend known as Madgwick. The following section is essentially straight: after a section known as Fordwater there follows a bend known as St Mary’s. This is followed by the Lavant bend at the north-west corner of the circuit. The Lavant bend is what is known as a “double-apex”. The initial part of the bend involves a bend to the right in the order of some 90°; the track then straightens out somewhat for some 40 metres before reaching the second (and less pronounced, with an approximate angle of 55°) part of the bend, also a right bend. There then follows a lengthy section known as the Lavant Straight, followed by another right bend known as Woodcote, which leads to a chicane and the finish.

[15]It had been appreciated from the outset that not only would substantial earth banking, grass covered, be required at many points of the circuit on the outside (the left side) but also, in some places, and particularly at the Lavant bend, on the inside (the right side) – this being essentially for noise abatement reasons. An initial rough plan prepared by Mr Ongaro in June 1993 had proposed a 2 metre “tyre and earth barrier” on the inside (right side) of the Lavant bend, starting close to the first part of the apex. That connoted that the bank itself would be fronted with lorry tyres. It was also appreciated that the bank itself, where it faced the track, must be vertical: this was to prevent any cars coming off the track at such a point on the right side from “spring boarding” up the bank and coming into contact with any spectators standing at the top or behind. Lord March and Mr Houghton, knowing that this was to be the proposed design, had (with an architect) visited two other circuits – Pembrey and Castle Coombe – to examine such structures and to discuss them with the operators of those circuits. I was in fact told, and accept, that lorry tyres fronting earth banks were at the time and still are a common form of construction at many circuits.

[16]At the meeting of the 4th December 1996 the discussion extended to the question of earth banks and tyre walling to the extent that they were proposed for various sections of the circuit. The minutes show that it was agreed that the only practical way to support and joint the earth banking was with “super-single lorry tyres”. Mr Carter stated they should be stacked in “brickwork” style and filled with earth on completion of sections of completed tyre walls. One function of the tyres was, plainly, to prevent erosion of the earth bank and it was also noted that scalpings should be inserted into the base to prevent erosion by rabbits. There was discussion about the front edge of the banking on the inside of the first part of the Lavant corner (which came to be called the “nose”) and the need to minimise the consequences of a head-on impact in the event of a car running off on the inside. Mr Symes wrote to Lord March to confirm this point, among others, on 6th December 1996. He also confirmed that the earth banks would be lined with truck tyres, house brick style, to a height of one metre to ensure a vertical face presented to the track side: “the tyres being earth in filled and the bank constructed behind”.

[17]In due course, costings of the various prospective materials to be used for barriers for the main areas of the circuit were made. Tyres were noted as acceptable to the MSA. The various options had been discussed internally at a meeting by Goodwood on the 22nd January 1997.

[18]A further meeting with regard to the proposed circuit development was held on the 7th February 1997. Mr Symes attended. The minutes record, among other things, the following:

“A discussion then began as to whether what LM intended to achieve at Goodwood (which was a FOS [Festival of Speed] atmosphere with racing incorporated) was compatible with what the FIA may require. DC said that the event would certainly need RAC approval which may well attract an FIA inspection. LM was anxious that if that was going to happen then what he did now should, ultimately, satisfy the FIA. DC suggested that LM invite Max Mosley over for an informal meeting and tell him, in general terms, what he intended to do. DN asked if the FIA criteria were defined anywhere. DC said that they were not. LM said he would like to carry out the circuit works in an “FIA friendly way.”

The minutes also record Mr Symes stating that “the Lavant banks should allow a car with an impact angle of 30° or less to slide along the front”. Mr Symes was there, as I think, speaking of the Lavant banks generally (earth banks being constructed both on the left and right side) and not simply of the bank to be constructed on the right side.

[19]Costings for the various options were made. A further meeting of the development team took place on the 27th March 1997 at Goodwood airfield. Mr Symes was not present. The items discussed included earth banking. It was noted that experiments would be undertaken as to how best to fill the tyres and avoid unnecessary spillage. A sample of filled tyres was duly inspected and approved in May 1997.

[20]During this time contractors were at work on the circuit. Driving (including track days and instructor training) continued at the circuit in the meantime. On the 26th June 1997 Mr Mullen of Mithril Racing Limited (regular users of the circuit) wrote to Mr Houghton to express concerns. He stated that in many places tyres were very close to the circuit; he expressed concerns that a single seater car, if it hit the tyres, could “submarine” under the lowest levels, leaving the top level to hit the driver on the head. He queried the method and placement of the tyres, asking:

“for example, are the RAC content to allow free standing, unbound and unpinned tyres to circumnavigate 2/3 of a motor circuit which carries a RAC licence?”

He went on to state that “truck tyres filled with earth on the straights will form a solid unforgiving barrier which will “hook” cars causing big accidents instead of deflecting them like the old 60’s barrier. And plenty of accidents do occur on the straight. Furthermore these tyres are going to be even closer to the track than the old concrete barrier. From the racing driver’s point of view the notion of totally solid objects anywhere near the trackside is horrifying.....”. On the 29th August 1997 Mr Gethin of Peter Gethin Driving Courses also wrote to express concerns. He referred to the lorry tyre wall on the left side at St Mary’s bend, and among other things said that he felt that “these lorry tyres are too heavy, especially when filled with earth to give or absorb. There are areas where I feel that it would be a good idea to utilise some other absorber, such as car tyres”. These letters (which were, it might be noted, written at a time when the earth bank on the right side of the Lavant bend had not been finalised) were drawn to Mr Symes’ attention by Mr Houghton.

[21]Mr Symes had visited the circuit again in July 1997, to inspect progress. He wrote to Lord March on 25th July 1997, setting out his views on various safety aspects. In the course of his letter he wrote:

“The general principle of truck tyre reinforced earth banks is fine and accepted both by the RACMSA and the FIA. If you want to disguise them with foliage this is fine.....” (This last point is to be explained by Lord March having frequently expressed concern about the appearance of the barriers at the circuit and as to the aesthetic considerations he desired for the circuit). Mr Symes went on in the letter: “The basis of the reopening of Goodwood as a racing circuit is well understood. We see no reason why it should not have the general appearance it had when last in use as a race circuit. Reality will be that safety installations will be such as to satisfy modern day requirements.......”

The letter went on to deal with specific parts of the circuit. Dealing with Lavant, he said:

“Lavant looks ok though how we deal with the head on the inside needs to be carefully thought through. The exit area is not over generous but impact is likely to be at a shallow angle......”

The first sentence is clearly dealing with the “nose” on the inside of the Lavant bend.

[22]On the 7th August 1997, Mr Symes wrote to Cluttons, Goodwood’s agents, saying, among other things that the later stages of the Lavant corner bore discussion – as I see it, Mr Symes was particularly focussing on the outside part of the bend. On the 18th September 1997, he wrote to Lord March raising concerns about the banking on the inside of the first part of the corner (that is, by the “nose”) and further saying “once on the straight its presence is acceptable”. After this, there were various discussions and the lay out of the inside earth bank at Lavant bend was adjusted: it was started further round the bend, and its height was lowered in the initial stages before rising at the straighter part (that is, once through the second part of the bend). The parts of the bank facing the track side were at an initial height of 1 metre, faced with lorry tyres – the bank then rising up behind, to provide a view point for spectators. This solution also proved acceptable in noise abatement terms.

[23]On the 20th November 1997 there was a further inspection. Mr Houghton and Mr Clark were present on behalf of Goodwood, Mr Symes and Mr Todd on behalf of the MSA. Mr Symes prepared a written Venue Inspection Report, based on the notes he made at the time of this inspection. The report referred to the various uses of the circuit and the proposal once more to host car race meetings. It then set out various comments. With regard to bankings, it was noted that a good proportion was on the outside (left side) of the circuit, with “a square facing trackside by using truck tyres”, which appeared to be “nicely consolidated”. A comment on the Lavant bend referred to the proposed removal of the bank at the first part of the bend and also referred to the design of a proposed gravel trap on the outside (left side) of the bend.

[24]At a committee meeting at Goodwood Airfield on the 2nd December 1997, it was reported that concerns had been expressed by a Mr O’Rourke (an amateur driver) that the track was hazardous and that secondary tyre walls should be provided in as many areas as possible. In December 1997 there was further discussion about the inner side of the Lavant bend, in particular relating to the “nose”: concern being expressed at the potential impact for a driver coming off the track on the inside of the first part of the bend. Mr Symes was consulted, and he recommended a form of energy absorption involving (car) tyre barriers at that point. There was also general discussion about conveyor belting to be placed over car tyre barriers. The inside bank was then completed in February 1998. On 4th March 1998 Mr Symes made another visit. He wrote to Mr Houghton with his comments and observations about the circuit the next day. He noted:

“The truck tyre reinforced earth banks seem to be settling in very well. You may find it necessary to top up the tyres as they settle but generally they look quite mature and stable”

. He also referred, separately, to the “impact absorption tyre walls” and reminded Mr Houghton that the MSA had asked for certain areas to be conveyor belt fronted, appending the relevant FIA guidelines. It is plain, reading this letter in context, that Mr Symes was distinguishing the lorry truck tyre faced earth bank from the “impact absorption” car tyre barriers (which he was there calling tyre “walls”).

[25]On the 10th June 1998 Mr Symes wrote a letter to Mr Roger Peart, a member of the FIA Circuits and Safety Commission, one of whose tasks was to carry out inspections of circuits designed to be used for international events. Mr Peart had immense experience of such issues, having raced cars himself and having been involved in all organisational aspects of the sport in Canada since 1966. He had also been involved in the design of circuits. In 1998 he was appointed the President of the FIA Circuits Commission and was a member of the FIA Safety Commission and had carried out inspections all over the world on behalf of the FIA for over 20 years. The reason why Mr Symes wrote to him was because it was known that the motor racing event (the Revival Meeting) which Goodwood was planning for September 1998 had been designed to be placed in the International Racing Calendar: thus it would be an international event, involving the invitation of competitors both from the UK and from outside the UK. An FIA inspection was therefore required.

[26]Mr Symes in his letter described some of the circuit’s characteristics. He set out some of the background and referred to Lord March’s ambitions for the circuit. Mr Symes said that he had been working on the basis of seeking to “incorporate the sort of safety installations we expect in modern times”. He went on to say this:

“The circuit runs pretty close to the property boundary in places which limits the run off area possibilities and I’ve thus placed a fair amount of emphasis on providing suitable barriers. There is hardly any Armco, generally the barrier is a truck tyre reinforced earth bank which gives a vertical face at a normal one metre height. The presence of the tyre reinforcement is disguised by foliage so it looks very much as it always did. Where appropriate I’ve insisted on such as (sic) double tyre barriers and in many areas these are to be conveyor belt fronted. Not only does this help from an impact viewpoint but also means they can disguise them better.”

[27]Mr Peart made his inspection on the 2nd July 1998. An FIA questionnaire had previously been submitted – perhaps via Mr Symes – to Goodwood and completed by Mr Houghton. Mr Peart was accompanied by Mr Symes. Also present at various stages of the inspection were Lord March, Mr Houghton, Mr Carter and Mr Nye. Mr Peart prepared his report shortly thereafter. He made a number of comments and recommendations. One passage read as follows:

“One of the conditions imposed by the local authorities was a requirement to erect earth banks all around the circuit to reduce the noise level. Thus, the outer limit of the circuit (driver’s left, this being a clockwise circuit) is defined in most areas by an earth bank, the track side of which is stabilised by truck tyres embedded in the earth, forming a vertical face approximately one metre high. In areas where the risk of impact is high, the bank is faced with at least one row of car tyres, bolted together to form vertical stacks. NOTE: the method used for bolting tyres does not comply with our current standards. The bolts used are of the self-tapping type and the washers are far too small (less than 20mm diameter). It should be ensured that the owners are provided with our latest standard on this topic. It is understood that conveyor belting will be added to many of these tyre walls, to improve their integrity, prior to the September event. On the “infield” side (driver’s right) the track is bounded in most sectors by a flat cornfield. The crop was quite tall during my visit, tending to obscure the view, but I understand that this will be harvested prior to the event.”

In a list of specific recommendations at the end of his report, he said, with regard to the Lavant bend, that the beginning of the earth bank on the driver’s right could present a hazard. He recommended extending the existing tyre wall to cover completely the end of the bend and faced with two rows of car tyres securely bolted together in stacks. He thus was dealing with the “nose”. He recommended, with regard to Woodcote, the addition of conveyor belting to the car tyre barrier in that area, “to facilitate sliding contact and improve the integrity of the barrier”. After various other recommendations, he concluded by saying that he would attend the Revival Meeting in September and might thereafter propose further safety improvements. He commented that the circuit “presents quite a challenge to the inspector” given its high speed potential and minimal run-off area:

“However, I have taken into account the nature of the planned activity, which is not intended to be championship type racing but more of a show”

. Mr Peart in this report was, I accept, himself focusing on the forthcoming Revival Meeting which, to him, was of a kind to be regarded as a Restricted Event, in FIA terminology. He made no recommendations in his report for any adjustment to the lorry tyre faced earth bank on the inside (right side) of the second part of the Lavant bend.

[28]On the 25th August 1998 Mr Symes inspected the circuit again. He made a number of points, confirmed in a letter to Goodwood of 1st September 1998. No recommendations with regard to the Lavant bend were made. In the course of the letter Mr Symes wrote:

“In general I have to suggest that it is in everybody’s interest to simply complete work as has been agreed with the FIA, the RACMSA and the ACU [the association for motor cycling]. Doing this ensures compliance with the Track Licence conditions and should ensure that “if it all goes wrong” and we end up in litigation no Goodwood personnel or other individual is going to have to justify why alterations to the specification set down by the FIA were made”

. Mr Symes went on to refer to his own approach when he worked for Brands Hatch.

[29]On the 14th September 1998 Mr Symes inspected the circuit once more. He did so primarily to make sure that all recommendations of the FIA, by Mr Peart, had been implemented. He prepared a report. No adverse comment about the Lavant bend was made. Various points were noted. It was observed that an arrestor bed on the outside of the Madgwick bend was now suitably grated and “tyre wall in head on and exit zone now satisfactorily conveyor belt fronted”. It concluded:

“Subject to completion of the minor points noted above the circuit is approved for the hosting of car events as authorised by the FIA and RACMSA.”

[30]On the 17th September 1998 the MSA issued a licence, signed by Mr Symes, for car-racing at the circuit for cars manufactured prior to 1972, valid for “Car Racing” and “Sprints” (the terms of which licence I mention in more detail hereafter); and on the 18th-20th September 1998 the Revival Meeting took place. Mr Peart and Mr Symes attended the meeting, and inspected the racing closely. Mr Symes wrote a detailed letter on 7th October 1998 to Lord March (copied to Mr Peart), reporting his and Mr Peart’s views. In the course of his letter he wrote this:

“I stood on the outside of Lavant for a couple of races and found the approach speed was possibly a little less than I originally envisaged. Any car suffering total brake failure is likely to be collected up by the gravel trap and if the car just goes off I’m reasonably confident that it will not reach the barrier, but if it does any impact is likely to be relatively small. I know Roger [Peart] was mainly thinking of debris but the risk of debris with the sort of cars you run is, in many ways, more controlled in that many components are grossly over engineered and tend to bend rather than break Woodcote continues to exercise my mind a little for it is undeniable that the entry speed is significant. That said the layout of the bend is such that cars are braking earlier than you first think they will. As long as the gravel trap is turned over, dressed frequently and the barriers maintained I’m reasonably comfortable. Any car going off in the later stages of the bend is likely to make a sliding impact with the barrier which is accommodated by the conveyor belt fronting.”

He also referred to an incident involving a Mrs Mason, who had been injured driving her Maserati coming out of the Lavant bend, in what he called a “tank-slapper” (that is, the car veering from side to side), describing it is a “classic driver error incident”. No recommendation for any change at Lavant was made, although Mr Symes did say, speaking generally, “looking to the future circuit wise, I suspect we will be looking at barrier construction, such things as inserts in tyre walls and the like but do not anticipate anything too serious. As always our endeavour will be to ensure we minimise the consequences of any incident........”

[31]By the time of the Revival Meeting, the design of the protection at the Lavant bend, following extensive discussions and meetings as set out above, was, in summary, as follows. On the left side (outside) of the first part of the bend was a deep grass verge, backed by a grass bank (serving an acoustic, as well as a landscape, purpose). On the extreme left of the bank, it was lined with lorry tyres, laid “house brick” fashion and filled with earth. The tyres had been filled by contractors, with a view to ensuring that they were as full of earth as was practicable (some spillage, given the shape of tyres, being inevitable), but the earth not being compacted. The lorry tyres were 5 in number in terms of height. The average diameter of each tyre was 1.05 metres. A geotextile membrane was inserted between each layer of tyres to prevent seepage of earth. Grass had started to grow in at the top level of the lorry tyres, assisting further in binding them together. Further round the first part of the bend, on the left side, was a strip of grass verge and then a gravel trap (designed to bring about deceleration for cars running off). Beyond the gravel trap was a car tyre barrier fronting lorry tyres, filled with earth, set into the bank. Yet further along, after the second part of the bend on the left side, the bank again was faced with lorry tyres, filled with earth, there being a deep grass verge some 17 metres deep separating it from the track.

[32]On the right side (inside) of the first part of the Lavant bend was a deep grass verge and then, further on and more or less facing the track, the “nose” of the earth bank protected by a layer of car tyres, stacked vertically and bolted together and fixed to lorry tyres filled with earth fronting the bank. Further along, coming through the second part of the bend into the straight, the earth bank on the inside facing the track was at the height of one metre, fronted by lorry tyres, again laid house brick fashion and filled with earth, with a geotextile membrane between each layer, and grass growing in at the top layer. The grass bank there rose up higher behind the one metre vertical side away from the track to provide a spectator point: there being a spectator fence at the edge of the bank at the very top. The depth of the grass verge on the right side between the lorry-tyre fronted bank and the edge of the track at this stage, although not as deep as that on the left side, nevertheless was some 6 metres (double the recommended minimum). The lorry tyres were not faced with conveyor belting and were not at this section fronted by car tyres.

[33]That was the state of the Lavant bend both at the Revival Meeting and when Mr Wattleworth drove at the circuit on the 5th November 1998, when the development of the circuit had been in substance completed. I was, in fact, told that the total cost of development of the circuit (and ancillary developments) has been in the region of £3.5 million.

[34]Before turning to the events of that day, and subsequent events, it is convenient to say something at this stage of the MSA and the FIA and of their licensing functions.

The MSA and the FIA

[35]The Claimant’s pleaded case is that the MSA was and is the governing body for motor sports in the United Kingdom. I suspect that is the belief of many connected with motor racing in the United Kingdom: certainly it was, as I find, the belief of Goodwood (through Lord March and Mr Houghton). But matters are not quite so straightforward.

[36]The Memorandum and Articles of Association of the MSA were not put before me. What were before me, and were emphasised in argument, were the regulations promulgated each year by the MSA, which are divided into two separate and substantial books: the Competitors’ Year Book (the Blue Book) and the Officials’ Year Book (the Red Book). The Blue Book contains all the basic regulations for competitors and race organisers requisite for participating in four wheeled motor sport within the UK.

[37]Thus Clause 1 of the Common Regulations for race organisers contained in the Blue Book stipulates that competitions may only be organised in the territory of the MSA by the MSA itself or a club (or clubs) duly registered with MSA. Clause 2 provides, among other things, that no event (as defined) should be held unless the MSA had granted an organising permit, unless the event was of a kind for which exemption was granted. Clause 4 provided, among other things, that specified events must be run in accordance with the regulations and Clause 5 set out provisions relating to exemption. Clause 8 stipulated that all events were governed by the regulations (and published supplementary regulations). Clause 9 contained detailed provisions relating to indemnities, declarations and undertakings by entrants, drivers and passengers. Clause 12 dealt with the rights of organisers. Clause 19 contained detailed provisions for “scrutineering” at events – those involving the examination of a vehicle to check that it was of a model and type appropriate, as a matter of eligibility, for an event in question and also to check that it was sufficiently road worthy and safe for the event in question.

[38]In the section headed “Track Licences” it is provided that application must be made through the MSA to the FIA for an International Track licence. So far as National Track licences were concerned, it was provided that the MSA may provide a National A or B Track licence to a race circuit or speed event venue for a meeting or a series of meetings or (if the track were a permanent one) until the next 31st December. Information to be provided for obtaining such a licence included “outline plans and RACMSA inspectors’ approval”. The information required was extensive, including type and siting of protective barriers, siting of marshals, ambulances and fire equipment and so on A fee calculated by reference to a scale was payable to the MSA. Detailed safety requirements were specified.

[39]It is plain that the MSA is capable of being (as it is) involved in all levels of motor racing, ranging from Formula 1 to club events such as sprints, kart racing and the like. Its responsibilities include central administration, training of MSA licensed officials and promotion. It also has a licensing function in relation to venues where races or various other events are to be held. Such events at such venues require not only an MSA track licence: they also require an Organizing (or Event) permit from the MSA. The Track licence itself will not be issued without the appropriate report from the MSA approved inspector. It follows that, as was the case at Goodwood, the operator had to comply with the MSA’s requirements if it was to get the licence. As to the organising permit for a particular event, it will only be issued if the circuit is thought to be fit to stage the race; and the permit will specify safety conditions for the event, including provision of marshals, ambulances and safety equipment. A steward is there on the day to ensure compliance with the requirements. The Track licence itself, it might be added, is not necessarily of general application: it is restricted to the type (or types) of event specified to be run at the particular circuit and there are boxes on the standard form of licence which are completed to designate them. As the evidence made clear, each circuit on inspection is looked at individually and having regard to the racing or driving discipline (or disciplines) which are to be undertaken at the circuit.

[40]It thus is the position of the MSA that it is indeed to be regarded as the national governing body for motor sports in the UK: but only, it says, for those motor sports events in the UK which have been authorised by the MSA. There is, it seems, no stipulation that circuit owners or event organisers have to be registered with the MSA: in practice, however, as I understand, most, if not all, obtain the requisite event permit and Track licence from the MSA, so that they can run competitive events.

[41]Turning to the FIA, that was constituted as a non-profit making organisation, based in Paris, in 1904. It was formed by the agreement of 13 national automobile clubs and was designed to be a forum in which the national motor sports authorities from countries all over the world could agree on rules to be applied in relation to international racing events – so that, as Mr Pierre de Coninck, its general secretary, told me in evidence, individual racing drivers from different countries could compete with one another on a “level playing field”. The FIA, although a legal entity in its own right, is thus in effect an association of national automobile clubs or national sporting authorities (or associations). The MSA is one such national sporting authority. I was told that there are currently some 118 other such national sporting authorities for other countries, with roles broadly corresponding at national level to that of the MSA.

[42]The structure of the FIA is set out in its governing statutes. Many of its functions are delegated to commissions, including a safety commission and a circuits commission. It is funded by subscriptions from the member clubs and authorities, from which the FIA derives its authority.

[43]In each year the FIA publishes a year book (after approval by its members), containing international regulations applicable to international motor sport as represented by the International Sporting Code with appendices. Article 1 of the Code, as set out in the 1998 year book, provides, among other things, that the FIA is to be the sole international sporting authority entitled to make and enforce regulations for the encouragement and control of automobile competitions and records. Article 3 of the Code provides that each national sporting authority belonging to the FIA is recognised by the FIA as sole international sporting power for the enforcement of the Code and control of motor sport in its own country. This reflects, I was told, what is also set out in the Governing Statutes of the FIA.

[44]The overall effect of the various regulations is that the FIA itself undertakes no responsibility with regard to track safety for national events. That is left to the national sporting authority in question – in the case of the UK, that being the MSA. The FIA itself is concerned only with competitive international motor sports events – that is to say, events listed in the International Racing Calendar. If an event is listed in the International Racing Calendar, it is to be taken as authorised by the FIA.

[45]The Safety Commission of the FIA will maintain a dossier for each circuit which has applied to host an event to be entered on the International Racing Calendar. In the case of Goodwood that application was first made in 1998, with a view to the holding of the Revival Meeting in September 1998. Under the regulations in place, because Goodwood was a circuit which had been extensively improved and was new to international events, it was a requirement that the FIA itself inspect the circuit. The FIA had a team of some 12 inspectors available for the purpose of circuit inspection. Each such inspection (as Mr Brown, the head of Health and Safety at the FIA, told me and I accept) necessarily required the inspector to exercise his judgment by reference to the features and characteristics of the particular circuit. The inspection may be either with a view to granting authorisation for a particular event, as in the case of the Revival Meeting, or with a view to the granting of a FIA Circuit Licence (which typically is granted for a 3 year period and, if granted, permits further International Racing Calendar events to be held in that period without further inspections of the circuit). In practical terms, the FIA inspector will usually inspect along with an inspector from the national sporting authority, who often will already have been involved with the circuit in connection at least with national events. The FIA, after its inspection, usually requires the national sporting authority to check that any recommendation made by the FIA has been carried out. This, as Mr Brown, told me, reflected the reality that a circuit’s “everyday regulatory relationship” is with the national sporting authority. That, it may be noted, is what happened at the Goodwood circuit.

[46]Although not produced in evidence, Lord March told me that Goodwood had obtained since 1993 the appropriate Track licences and permits from the MSA for events (sprints) organised at Goodwood.

[47]For 1998 a Track licence was again going to be needed, along with the relevant event permits, from the MSA. In addition, however, authorisation (although not an FIA circuit licence) was to be sought from the FIA with a view to the Revival Meeting planned for September 1998 and proposed to be entered on the International Racing Calendar.

[48]A Track licence for national events issued by the MSA had been issued on the 9th December 1997, following the inspection by Mr Symes and Mr Todd on the 20th November 1997. The licence was signed by Mr Symes. It expressed itself, by reference to completed and uncompleted boxes, as valid only for sprints, with an expiry date of 31st December 1998. A further Track licence, signed by Mr Symes on behalf of the MSA, was issued on 17th September 1998 following the inspection of 14th September 1998. That was designated as an “International” licence. This was valid until 31st December 1998 and applied to car racing and sprints. The classes for racing were specified as cars manufactured prior to 1st January 1972; for sprints, all classes were sanctioned. Each of the Track licences, in printed type on what was clearly a standard form, stated that the MSA would base its requirements on FIA/CIK safety criteria and the MSA’s own information and studies. It is also stated:

“However the issue of this Track Venue Licence does not constitute any form of WARRANTY, either expressed (sic) or implied, in relation to the standards of safety at this track/venue”

. There were also set out standard conditions of issue. These included a condition (Condition 1) that all competitors and competitions were bound by the MSA Regulations; and a condition (Condition 2) that the requirements of the MSA in respect of the organisation of meetings were complied with and that unauthorised meetings would cause the licence to be revoked. Condition 5 prohibited alterations to the circuit without the approval of the MSA. Condition 9 provided: “Failure to maintain the track/venue to the required standard of safety at all times will cause the licence to be revoked”. (At no stage, I might add, were Goodwood’s Track licences revoked). As it happens, the standard terms and conditions printed on the form of licence changed somewhat in the year 1999: although not, I should record, in case it be thought relevant, by reason of the incident involving Mr Wattleworth. A scale fee, in a four figure sum, was charged by the MSA to Goodwood for these Track licences, as provided in the Regulations.

[49]No form of event permit applicable for any event held in 1998 was placed before me. However Mr Eklund QC (appearing, with Mr Gardiner, for the MSA) did during his closing submissions produce copies of such permits as issued by the MSA for the Revival Meeting held in 2003, the permits covering international events and national events held during that meeting. Those forms of permit granted authorisation subject to compliance with the General Regulations and other relevant requirements of the MSA. A permit fee of £27.55 for each competitor, a sum of £25.30 by way of insurance premium in respect of each competitor (I was told this may represent 3rd party liability insurance) and a steward’s fee of £423 was charged.

[50]As mentioned, the Track licence indicates that the MSA would base its safety requirements on, among other things, the FIA safety criteria: as well as the MSA’s own information and studies. So far as the FIA is concerned, these criteria are principally contained in Appendix O of the Code. They are subject to revision and updating from time to time and are kept under review by the FIA Circuits and Safety Commission. Their stated object, by Article 1, is that the criteria contained therein should be referred to by the FIA motor racing course inspectors when deciding whether events held on the courses concerned may be entered on the FIA International Calendar: and to that end may be used for initial guidance by course designers and operators.

[51]Article 4 of Appendix O requires inspection by national sporting associations for events to be entered on the International Calendar and also stipulates the circumstances when inspection by the FIA itself is also required: with detailed provisions as to the procedures for the consequences of an FIA inspection. Article 7 (headed “Circuit Conception”) indicates that circuit construction should conform to any safety requirements specified by the FIA. Article 8 (headed “Circuit Safety Measures”) in the relevant respects provides as follows:

“The safety measures on the course are intended for the protection of spectators, drivers, race officials and service personnel, during competitions. When determining the safety measures, the characteristics of the course must be taken into consideration (layout, adjacent areas, buildings and constructions) as well as the speed attained at any point of the track. The type of track protection recommended is dependent on the available space and the likely impact angle. As a general principle, where the probable impact angle is high a system of deceleration (e.g. gravel bed) and stopping (e.g. tyre barrier) devices should be used, it being indispensable to provide for sufficient space at such points in the planning stage. The FIA can provide advice on the above, after examination of the proposed layout in each case.”

Article 19 sets out special provisions for Restricted Events.

[52]The FIA also had developed detailed internal guidelines for motor racing, course construction and safety, derived from a study by its Circuits and Safety commission and updated from time to time. All aspects of installation and protection are covered. The relevant issue of the internal guidelines for present purposes is Issue 4.2 (issued in July 1998). Article 1 provided as follows:

“These guidelines are intended to provide a reference for the assessment of a circuit by the FIA Circuits and Safety Commission and its inspectors, for inclusion on the FIA calendar of international events. This document may also be made available, at the FIA’s discretion, to ASNs. Although constructors of new circuits are advised to respect the recommendations herein, all FIA circuit guidelines are subject to interpretation according to each individual case and to local conditions, laws and inspections. The operators of a circuit are responsible for the safety conditions prevailing within its precincts.”

Article 3.1 provided as follows: 53. 3.1/OBJECT 54. “The safety measures on a course are intended for the protection of spectators, drivers, race officials and service personnel, during competitions. When determining the safety measures, the characteristics of the course must be taken into consideration (layout, adjacent areas, buildings and constructions) as well as the speed attained at any point of the track. The type of track protection recommended is dependent on the available space and the likely impact angle. As a general principle, where the impact angle is low a continuous, smooth, vertical barrier is preferable, and where the impact angle is high and there is sufficient ground available, a system of deceleration and stopping devices should be used. 55. 3.1.1/Deceleration devices include -. Gravel beds (or beds of equivalent material), to slow a car efficiently with minimal damage (see art. 3.2.3). -. Open space in which a car may lose speed; 58. 3.1.2/Stopping devices include -. Guardrails (see Appendix 1 and figure 2); concrete walls (Appendix 2); all of the above may be used in conjunction with barriers or tyres or other FIA approved energy absorbing devices (see Appendix 5 and figure 3). Each installation is subject to individual approval by FIA inspectors. Other deceleration or stopping devices may be approved by the FIA.” 60. Article 3.2.2 (relating to first line of protection: interior of curves) provided:

“The barrier should be parallel to the trajectory and as far from the edge as the nature of the ground and the needs of the emergency services permit, in order to provide maximum vision along the track. There should be a correctly overlapped access point. After the exit of the corner it may be necessary to provide a deceleration device in front of the barrier.”

Article 4.8 recommended regular inspection by the relevant national sporting association during the period of a licence. Article 5 provided recommendations for temporary circuits (including, in Article 5.2, detailed provision for circuit protection, including as to tyre barriers). Appendix 5 (as incorporated by Article 3.1.2) provided, in the relevant respects as follows:

“Car tyres of uniform diameter will be stacked to form a homogenous barrier, placed in front of and normally fixed to a permanent barrier. The tyre barrier should be at least as high as the permanent barrier (minimum 1m). Severely worn tyres, which provide reduced impact resistance, should not be used. New “reject” tyres are ideal, and can often be obtained from local tyre manufacturers. Two types of tyre barriers are recommended by the FIA, although other types may be approved, individually, by the Circuits and Safety Commission for particular applications. The types recommended are illustrated in figure 3 and are subject to the following general considerations: - Individual tyres should be secured to each other, horizontally and vertically, bolting being the preferred method (adequate bolts, min. 8mm, and hexagonal nuts with large steel washers or plates, min. diameter 40mm, min. thickness 2mm, on both sides). Other methods of attachment may be authorised by the Circuits and Safety Commission. Tyres should not be baled or shrink-wrapped in plastic. A tyre barrier in contact with a first line of protection should be securely attached to it. - There should be a firm smooth surface under the tyres. - Pre-fabricated piles of tyres should be held in stock for quick repairs between races (at least 50 piles). A preferred method of repair during an event is with pre-assembled packs of 6 piles of tyres such as illustrated in figure 3b. It is strongly recommended that the outer vertical face of the completed tyre barrier be covered by a continuous, reinforced flexible sheet or belt. This has been shown to substantially improve the integrity and effectiveness of the tyre barrier system. The lower edge of the belt should be in contact with the ground and the upper edge should be at least the same height as the top of the tyre barrier. Reinforced rubber industrial conveyor belting (either new or used), which will normally have a minimum thickness of 12mm, is ideal for this purpose.”

[53]In 1986 the MSA had published its own Track Safety Criteria. These were updated from time to time: but were withdrawn in February 1995 and not replaced, the intention being to participate with the Health and Safety Executive (HSE) in producing, in due course, safety guidelines for motor sports venues. Those criteria were based on studies carried out by the FIA Safety Commission and the MSA. They defined the conditions which needed to be satisfied by a motor racing circuit before it could be accepted by the MSA. The criteria are detailed. Clause 3, headed “Circuit Protection”, corresponds closely to Article 8 of Appendix O of the International Code. Clause 3 also acknowledges that steep earth banks may be counted as a stopping device, used in conjunction with tyre barriers. It was provided that such earth banks must be substantial, at least 75 cms above the ground and with a stable perpendicular face to the track. Appendix 3 gave further detailed provisions relating to tyre barriers.

[54]To complete this wealth of documentation on circuit protection measures there was in due course published by the HSE a guide to health and safety at motor sports events. This was first published in 1999 and after consultation with the MSA. Paragraph 19 set out a list of matters requiring consideration for the lay-out and design of a track. Paragraphs 21 to 25 gave guidance with regard to barriers. Paragraph 22 included this statement:

“Types of barriers and other safety arrangements are often specified by motor sports’ controlling bodies, who make judgments based on experience or calculations.....”

Paragraphs 24 and 25 provided as follows:

“Barriers of different types, e.g. motorway-type crash barriers, tyre walls and straw bales. 24 The construction of the barriers will depend on a number of factors including the type and speed of the vehicles, the level of protection the vehicle gives to the competitor and the likely angle of impact. For example, if a vehicle is likely to collide with a barrier at a ‘glancing’ angle, the barrier should be of a type which allows the vehicle to slide along it, so that the risk of injury to the competitor is reduced. 25 If a collision is likely to occur ‘head on’, barriers such as tyre walls or straw bales can be used to absorb the impact. Different arrangements may be needed for different types of event. Sports’ governing bodies may be able to recommend which ones are the most suitable for individual circumstances.”

Mr Wattleworth and the events of 5th November 1998

[55]Simon Wattleworth was born on the 16th July 1952. He married his wife, Ruth, in 1988 and there was one child, a son, of that marriage. Mr Wattleworth was a successful property developer. The evidence of his wife indicates a dynamic, intelligent, outward-going and energetic man. Aside from his business and family interests, he had numerous other social and sporting interests. One such interest was motor cars and he at various times owned a number of cars. He and his wife took part in motor rallying and frequently attended racing and rallying events, both in the United Kingdom and abroad.

[56]One of the cars which Mr Wattleworth owned in 1998 (acquired in October 1997) was a red 100-6 Austin-Healey sports car, model 3000 Mark 2, with a 3 litre engine and with rear wheel drive. The car was manufactured in 1956. Mr Wattleworth, at the time he acquired the car, had it fully checked to ensure that it was safe for racing. One feature of the car (added since manufacture) was the incorporation of a roll-bar. The roll-bar was sited close behind the driver’s head and had a flimsy foam wrapping round it. In September 1998 Mr Wattleworth in fact participated in a motor racing event on the Isle of Man called the Manx Classic, driving the Austin Healey car. For that purpose, he had on the 9th September 1998 obtained an MSA Race National B licence. That connoted that he had passed a medical, had demonstrated appropriate knowledge of the Blue Book and had undertaken a form of driving test, on a circuit, under inspection. The car itself would have been scrutineered, and would have satisfied the person undertaking the scrutiny, before Mr Wattleworth would have been permitted to participate in the Manx Classic. The evidence also showed that Mr Wattleworth generally was very alive to safety matters with regard to motor racing. Further, by reason of his regular reading of motor racing magazines and his knowledge of the Blue Book he would certainly have had some appreciation of the role and functions of the MSA and the FIA.

[57]Mr Wattleworth was in the habit, from time to time, of participating at track days at various circuits in the UK, including Goodwood. He started to organise charity track days, principally to raise money for the charity known as the Chemical Dependency Centre, often in conjunction with a colleague, Mr Greg Bayliss Hollamby. He hired the Goodwood circuit on two occasions in 1997 for that purpose.

[58]On the 5th February 1998 Mr Wattleworth and Mr Bayliss Hollamby again hired the Goodwood Circuit, for what was styled a “Goodwood day”. The fee for the circuit hire was £1000 with a further £250 for the provision of marshals. He and Mr Bayliss Hollamby also signed a form of indemnity in favour of Goodwood in wide terms (although no reliance is placed on that by Goodwood as part of its defence to this claim). No element of competition is involved in a track day (or Goodwood day, which really is a kind of track day). Conditions of hire required the hirers to abide by certain standard conditions. These, among other things, limited the number of vehicles on the circuit at any one time, on a Goodwood day, to 5; insisted on the provision of at least 5 marshals; and required the wearing of seat belts and helmets.

[59]Mr Wattleworth, in the company of Mrs Wattleworth, set out in the Austin-Healey for Goodwood from London early on the morning of 5th November 1998. They were delayed, owing to heavy traffic, and arrived later than planned: which was an inconvenience as Mr Wattleworth was one of the organisers. There was some evidence of there being a bit of a rush when they arrived and Mrs Wattleworth helped in getting the other participants to sign the relevant indemnity forms.

[60]The day in question was what one witness described as a “typical November day”. It was cold. There was no rain and visibility was excellent, but there was quite heavy dew on the track and surrounding grass. Mr Brian, a medical technician on duty at Goodwood that day and who had great experience of the Goodwood circuit himself, had already inspected the circuit. He warned Mr Wattleworth of the damp conditions, suggesting that participants take matters easy until a dry line had been established. Mr Wattleworth himself drove out in another driver’s car to inspect the circuit and came back in.

[61]Mr Wattleworth started driving round the track in his Austin-Healey at some time after 9.30am approximately. He was wearing a blue helmet and his safety harness (with shoulder straps, and horizontal strap with buckle fastening) was fixed. One driver already on the track, Mr Humphrey, was, while on his third lap, overtaken by Mr Wattleworth on the inside in between the sections of the circuit known as Fordwater and St Mary’s. Mr Humphrey (whose evidence I accept on this) formed the view that Mr Wattleworth was going very fast at this stage – his initial thought was, as he said, “Christ, he’s going”. He also observed Mr Wattleworth not taking the correct racing line approaching St Mary’s. Thereafter Mr Wattleworth successfully negotiated that bend and the Lavant bend and continued round the track. Mr Humphrey then came in, while Mr Wattleworth continued. The accident occurring thereafter at Lavant took place when, it seems, Mr Wattleworth was on his fourth lap.

[62]Mr Penfold was the marshal posted at the Lavant bend. He was on the raised grass bank on the left side (outside) of the bend and had an excellent view of cars approaching. He had previously been told on the radio that Mr Wattleworth had been observed trying to close the passenger door while driving – when he saw him he had succeeded in doing that. At no stage had Mr Penfold thought that the Austin Healey had been driven too fast through the Lavant bend – it had been handled in a perfectly normal way, although he thought that its speed had increased slightly after the first lap.

[63]On this occasion, Mr Penfold saw the red Austin Healey again approaching the Lavant bend. Mr Penfold, an immensely experienced racing driver himself and also having a great knowledge of the Goodwood circuit, did not think it was being driven too fast. It went through the first apex and then accelerated, as the experts considered and I accept, to around 70mph as it approached the second part of the bend: again not too fast, in Mr Penfold’s perception. The car had successfully negotiated the first part of the bend. However as the vehicle started to come out of the second part of the bend its two nearside wheels went on to the grass verge on the left side. Mr Penfold had been watching the car and he observed that, by a few feet, the car had not taken the correct racing line.

[64]Mr Penfold then observed the car to take a position sideways to the circuit. His perception was that the driver had not taken his foot off the throttle and was not braking – and so presumably was trying to steer his way out of the position. In the event, the car continued across the track, adopting a “yawing” motion. It continued across the track and towards the grass verge on the right side – being the interior of the second part of the Lavant bend as it straightens out. Tyre-marks appearing on the track, near to the right verge, indicate, as the experts agreed, a speed of 60-70mph at that stage. The car then went over the grass verge at the right side. As the experts agreed, it approached the lorry-tyre faced earth bank at an angle of 25°-27°, the car rotating anti clock-wise, and struck the lorry-tyre faced earth bank with its rear off-side. This was about 23 metres from the start of the tyre marks on the track. The speed of the car at initial impact (which the experts called “the first impact”) was, I find, in the region of 60mph, perhaps a very little less. The car then in consequence of the initial impact started to rotate clockwise. It slid along the lorry tyre faced earth bank for a total length, including car length, of some 12 tyres, being just over 6.5 metres (these being the measurements and calculations of Dr Ashton, which I accept). This the experts called “the second impact”. The front offside of the car then engaged (“pocketed” or “burrowed” were words also used in evidence) with the lorry tyres as the car continued rotating clock-wise (this being called “the third impact” by the experts): and the offside rear and side of the car thus at that stage disengaged with the tyre wall. All this, as the experts agreed, would have taken around 1/10 of a second. The car rebounded slightly in the air and landed on the grass verge, causing a deep gouge. Mr Penfold was not able to see the actual collision, since the tyre wall was not within his vision. All he could see was a cloud of mud and spray arising from the impact. There was some dispute as to which part of the car struck the verge so as to cause the gouge: on the whole, considering the evidence, I think it probable that it was the rear part of the car. The car then continued to rotate out (Mr Penfold seeing it come out rear end first) onto the track itself and ended up in a position where its front approximately faced the tyre wall on the right side of the track.

[65]The experts measured the distance between the area estimated to be where the rear wheels first went off on to the grass on the left side to the point of impact at the tyre wall on the right side as some 111 metres. They also calculated that at the time the car parted company with the tyre wall its speed was in the region of 36-37 mph.

[66]Mr Penfold immediately radioed for medical assistance and also put out a warning flag for other cars. The ambulance arrived very swiftly, in about two minutes. Mr Brian was one of those attending. He found Mr Wattleworth in the car with his head on his chest and his hands by his side. He noted a small black mark on the top of Mr Wattleworth’s helmet. His safety harness was in position, restraining him in his seat: the evidence of Mr Brian indicated to me that the harness had been appropriately and firmly fastened. Mr Wattleworth was plainly cyanosed. No pulse could be located, his pupils were fixed and dilated and all attempts at resuscitation failed. The evidence suggests that the collision had occurred at around 10am. Mr Wattleworth was removed immediately to hospital; he was pronounced dead at 10.55. In truth, the evidence indicates that in lay terms he had been killed instantaneously.

[67]A number of photographs were taken by the police of the site of the accident. The police also prepared a reconstruction plan: although I heard no evidence from the police officer concerned and there is reason to think, as Dr Ashton explained, that the plan is not altogether accurate in all respects. The photographs indicate clearly the condition of the lorry tyre wall at that spot. The initial point of impact was marked by the police with white paint on the tyre in question. Traces of red paint can be seen on some of the tyres, though not at the top level: this reflecting the section where the car had slid along the tyres. The photograph of the site of the third impact (as the experts style it) shows a pronounced displacement of the lorry tyres. One was displaced almost, although not altogether, so as to be entirely separated from the other tyres so to be lying horizontally on the grass verge in front of the tyre wall. At least four others were also significantly displaced; although none was entirely displaced from the wall so as not to be touching any other tyre. Photographs of the car were also taken. That shows extensive body work damage to the entire offside of the car. The front, on the offside, had crumpled in and the front offside tyre of the car driven straight back to some extent. The near side was virtually undamaged. The photographs also show that the driver’s seat – which would appear to be of relatively flimsy construction by modern standards – had been forced back, so that it (and the head-rest) were displaced behind the roll-bar.

[68]The photographs also reveal that the displacement of the tyres occurred at a location very near to a place in the tyre wall where work had very recently been undertaken. This is explained by the fact that only the previous day another driver, a Mr Begg, driving with an instructor, had also collided with the tyre wall on the right side of the second part of the Lavant bend. As it happens, photographs exist of the damage done to the tyre wall and to Mr Begg’s car (a fibre-glass Lotus). The photograph of the tyre wall was taken after some “tidying-up” of the tyres by somebody. Nevertheless it shows a significant displacement of the lorry tyres – possibly more extensive, indeed, than occurred in the case of Mr Wattleworth. The evidence indicated that Mr Begg’s impact with the wall (his car, after spinning off the track, striking the tyre wall with the rear nearside of the car) was at a very different angle – a high angle – compared to that of Mr Wattleworth, and after Mr Begg had spun in a clockwise direction in the region of some 270°. In the event, Mr Begg walked away from that crash unscathed: and the tyre wall had been thoroughly repaired that evening in time for the Goodwood day the next day.

[69]I should add here that the fact that Mr Begg had on the previous day an accident in the same place as Mr Wattleworth seems entire coincidence. The evidence of Mr Houghton, which I accept, was that of the scores of thousands of laps run at Goodwood the incidents involving Mr Begg and Mr Wattleworth are the only ones identified to have occurred at this particular spot of sufficient seriousness to merit report (the evidence showed that the incident involving Mrs Mason at the Revival Meeting was of an entirely special and different kind and not to be linked to this particular location; and evidence of another incident involving a Cobra car was altogether inconclusive). Goodwood did not, however, keep an incident book as such, and thus only serious accidents would be recorded. It is clear that other incidents at this spot have from time to time occurred: indeed when I viewed the site on the 4th December 2003 one could see tyre marks on the verge at that section, scoring marks on the belting covering the car tyres now in place there and some debris from broken lights on the verge. But overall I find that such incidents have been very few in number – probably in the region of a dozen or so, as Mr Houghton thought – and none, save for those involving Mr Begg and Mr Wattleworth, can be described as serious, whether in terms of damage to car or driver. In fact, as I was told, since Lord March took over at Goodwood the only fatal accident occurring at the entire circuit has been that of Mr Wattleworth.

Events after 5th November 1998

[70]In due course, an inquest was held. A number of the witnesses who gave evidence before me gave evidence at the inquest. The Inquisition, dated 13th January 1999, recorded a verdict of accidental death.

[71]A post-mortem had been carried out by a consultant histopathologist on 12th November 1998. A large basal skull fracture was noted, transversing both middle fossae, measuring 17cm long and associated with some displacement and comminution. In addition there was an external fracture of the left temporo-parietal area of the skull measuring 15 cm long. The right third rib was fractured but no fractures were detected in the vertebral column, pelvis or limbs. The cause of death was recorded as “Closed head injury”. The provisional comment was made that death had resulted from the effect of a severe closed head injury predominantly in the form of a partly comminuted and displaced basal fracture of the skull.

[72]As one might anticipate, Goodwood promptly (that day) informed the MSA, by Mr Symes, of this fatal accident. (Lord March also informed Mr Peart of the FIA by fax dated 17th November 1998 although this was by way of side-comment, in the context of Lord March dealing with Mr Peart’s comments on the Revival Meeting). Mr Symes reinspected the track, and specifically the site of the accident, in consequence, during November 1998, in the company of Mr Houghton. Mr Houghton had explained to Mr Symes his understanding of what had happened. Mr Symes advised Mr Houghton that he did not consider that any alteration or revision was needed to that part of the circuit or the tyre wall. In due course, Mr Symes also wrote to the relevant officer of the Chichester District Council on the 15th January and 9th March 1999, explaining among other things, the construction of the tyre wall facing the earth bank at that part of the Lavant corner and stating that it was acceptable to the MSA and FIA. He stated, among other things, that its construction was “in accord with recognised custom and practice”; and that no change was needed to that section of the circuit.

[73]On the 1st March 1999 Mr Peart wrote to Mr Symes recommending certain improvements to the circuit, following his observations at the Revival Meeting held in September 1998. The letter included the following comment. “1. Firstly, I feel that safety could be improved by some work on the tyre barriers around the circuit. From the copy of our current guidelines on this subject (attached to my original report), it will be clear that many of the existing tyre barriers would benefit from upgrading. Additional rows of tyres would be helpful at certain points where there is a high risk of impact at significant angles, and the tyres should be reinforced with plastic tube inserts as are now used at several International circuits. In all such locations, the tyre walls should be faced with conveyor belting, again all as detailed in our guidelines. It would really take another visit to establish the exact locations where this work would be most beneficial, but the following areas come to mind:-• Madgwick, in the “head-on” position and at the exit, drivers left.

• The approach to St. Mary’s, driver left.

• Lavant, in the “head-on” position, behind the gravel bed and at the exit of the corner, driver’s left.

• Woodcote, again on the driver’s left. Also, the tyre barrier protecting the end of the pit wall needs upgrading, with plastic tube inserts conforming to our standards (as yet unpublished, admittedly). 2. Consideration should be given to extending the gravel beds in certain areas. Particularly at Madgwick (at both entry and exit) and Lavant, at the exit of the corner.” As is reasonably clear from its wording, and as was confirmed by Mr Peart in evidence which I accept, he was there dealing with sections of the circuit other than that part of the tyre wall at the Lavant bend where Mr Wattleworth had his accident. Mr Peart was not making any recommendation for change there. On the 10th March 1999 Mr Houghton wrote to Mr Symes confirming that he had effected certain required changes to tyre barriers at certain points of the circuit (not Lavant) as had been requested. On the 21st June 1999, Mr Symes and Mr Peart together inspected the circuit. Mr Symes had, as it happened, himself made another inspection on the 20th May 1999 and had issued on the 26th May 1999 a further Track licence, for car racing and sprints, expiring on 31st December 1999. Mr Symes wrote a letter on 21st June 1999 to Mr Houghton (copied to Mr Peart) in consequence. The various recommendations there made did not extend to alteration of the lorry tyre faced earth bank on the right side of the second part of the Lavant bend. Various other changes elsewhere were made during the year, at the request of Mr Houghton.

• Madgwick, in the “head-on” position and at the exit, drivers left.

• The approach to St. Mary’s, driver left.

• Lavant, in the “head-on” position, behind the gravel bed and at the exit of the corner, driver’s left.

• Woodcote, again on the driver’s left.

[74]On the 8th December 1999 there was an inspection of the circuit by Mr Symes and Mr Peart in the company of Mr Houghton. The summary of the agreed recommendations was set out in a letter from Mr Symes to Mr Houghton dated 24th December 1999, based on his notes of the inspection. The letter in part says this:

“5. Lavant: in the area to the rear of the gravel trap and thereafter to where the barrier on the left terminates either a conveyor belt fronted double tyre wall or a conveyor belt fronted single tyre wall with “Recticel” inserts. On the left from the overlap to just short of the kink a conveyor belt fronted single tyre wall to be provided. On the right the nose of the bank to be fronted with a conveyor belt fronted double tyre wall and from this point until approximately 50 metres past where the barrier has been rebuilt a conveyor belt fronted single tyre wall to be provided. 6. Lavant Straight: On both sides from where the tyre walls terminate the existing barrier to be conveyor belt fronted. On the right the observers box to be protected by a truck tyre reinforced earth bank which can either be an extension of the existing barrier or built as a short stand alone section with the access gap overlapped.”

[75]This is the first indication of a change to the protection at the site of Mr Wattleworth’s (and Mr Begg’s) accident. What was now proposed was that the lorry tyres themselves be faced with a single row of (car) tyres, fronted by a conveyor belt. This was done by the spring of 2000. The stretch of the interior of the second part of the Lavant bend was, as recommended, supplemented by car tyres, stacked vertically (and in due course the vertical voids in the car tyres being filled with plastic bags containing Recticel, a soft impact absorbing material), bolted together and to the lorry tyres behind and being fronted by a conveyor belt. The cost of doing so at this section was about £1,500.

[76]There was much debate before me as to who and what prompted this change. Lord March understood that it was at the request of Mr Symes or Mr Peart – but Lord March had no involvement in the relevant discussions. Mr Houghton in his evidence was rather more hesitant about who first made the suggestion, but he inclined to the belief that it was at the request of Mr Symes. He was “not sure” if the change was due to Mr Wattleworth’s accident, but his own perception was that it would have “looked odd” if something was not put there after such an accident: it was something of which an owner would wish to take “cognisance”, as he put it. For their part, Mr Symes and Mr Peart were adamant that, to their recollection, the proposal emanated from Mr Houghton.

[77]On one view, the point is not very important: because it is clear that, whoever first raised the proposal, all agreed to it. But Mr Glancy attached weight to the proposal coming from Mr Symes and/or Mr Peart, as indicating, he would suggest, their doubts as to the wisdom of their initial choice or approval of the protection at that part of the interior of the Lavant bend. (I should add, however, that none of Mr Houghton, Mr Symes or Mr Peart had, as I find, any thought at this time that legal proceedings might thereafter be started in respect of Mr Wattleworth’s death). I find, considering the evidence, that the suggestion first came from Mr Houghton. The papers show that Mr Houghton had, on other occasions, initiated proposed changes at the circuit, including changes to barriers; see, for example, a letter from him to Mr Symes dated 1st September 1999. It is clear, too, that he retained some residual concerns about public perception about the accident. Neither Mr Symes (in the aftermath of Mr Wattleworth’s accident) nor Mr Peart, in their subsequent inspection, had themselves requested such a change. The letter of 24th December 1999 is consistent with such proposal being agreed; the correspondence does not demonstrate that the proposal had first been made by Mr Symes or Mr Peart. On the whole, therefore, I accept the evidence of Mr Symes and Mr Peart on this point. I further reject the suggestion, if it be made, that Mr Symes and Mr Peart had by this time become dissatisfied with the previous arrangement in place: rather, their view was that it had been acceptable but that the proposed alteration was, in itself, also acceptable.

[78]I also add that the evidence shows that throughout this time Lord March was very anxious to have conveyor belting around the various tyre sections at the circuit. A significant quantity of such belting was purchased by Goodwood during 1999. The reason for this, as I find, was simply one of aesthetics (about which Lord March had always been concerned). In particular, the hoped for covering of tyre walls at the track through the growth of vegetation had not come about – mainly owing to the depredations of rabbits. Conveyor belting, of course, was, for car tyre barriers within the ambit of Appendix 5 of the FIA Internal Guidelines, in any event recommended; to improve the integrity and effectiveness of the barrier. That had from the outset been appreciated and catered for in respect of such barriers. But aside from that, I am quite sure that the addition of belting at tyre wall sections at Goodwood was for aesthetic reasons (indeed, my view of the circuit revealed that almost all sections of tyres at the Goodwood circuit – including lorry tyre walls – are covered with conveyor belting). I do not think alleged “sliding” facilitation propensities for such conveyor belting were in the mind of Goodwood at the time. I further find that neither Mr Symes nor Mr Peart nor Mr Houghton were influenced by any possible advantage of the facilitation of sliding, in agreeing in December 1999 to the construction of the new car tyre barrier at the interior of the Lavant bend being fronted with conveyor belting. The conveyor belting was added because it was recommended in the guidelines for car tyre barriers of this kind, to promote integrity and effectiveness.

[79]After the various modifications set out in Mr Symes’ letter of 24th December 1999 had been executed there was a further inspection by Mr Peart on the 14th September 2000. He also attended the Revival meeting held over 15th, 16th and 17th September 2000 at the Goodwood circuit. He was very complimentary about the event. His subsequent Event Report recorded that he was pleased to find that all the work requested during previous visits in concert with the MSA has been carried out to a very high standard. He made a number of further recommendations. He also noted that the entire circuit was now lined with conveyor belting, attached to tyre barriers by screws. His observations included the following comment:

“In addition to the basic truck tyre wall (which is backed up in all locations by earth banking) a single row barrier of car tyres has been added in appropriate areas. These are all bolted together in vertical stacks as per FIA guidelines and faced with conveyor belting. In areas where large-angle impacts are likely double-row tyre barriers have been installed. ”

The inside of the second part of the Lavant bend (on the right side of the track) was, of course, one such area where a single row barrier of car tyres had now been installed.

[80]Revival Meetings have continued to be held at Goodwood in each year, each being entered on the International Racing Calendar. In fact, following a further inspection by Mr Peart on 15th February 2001, a circuit licence (Grade 4) was issued by the FIA itself, valid for a period of 3 years from 15th February 2001, in respect of the Goodwood circuit, upon the proposal of the MSA. I infer that the MSA had itself issued to Goodwood in the intervening years the relevant Track licences (and organising permits) for MSA events.

The proceedings

[81]These proceedings were commenced by Claim Form issued on the 2nd November 2001. The claim itself has been substantially amended and has also on occasion been the subject of the provision of further information. The pleaded case makes numerous detailed criticisms of the Defendants with regard to the lorry tyre faced earth bank sited at the interior (right side) of the second part of the Lavant bend in the area of Mr Wattleworth’s collision with that tyre wall. This has enabled Mr Glancy QC (appearing, with Mr Killalea, for the Claimant) to advance his case on a wide front. All the same, the wide-ranging, and in some respects alternative, nature of the Claimant’s case operates as a salutary reminder of the burden of proof.

[82]It is pleaded that each of the Defendants owed a duty of care to the users of the circuit. It is pleaded, among other things, that the tyre-fronted earth bank was unsafe; it is pleaded that it was foreseeable that vehicles could lose control at that part of the track and that a vehicle losing control would probably collide with the bank at an angle of less than 30°. It is pleaded that a smooth and continuous barrier should have been installed in front of the earth bank but this had not been done. By amendment, it is said that the tyres should have been physically attached to each other and should have been filled with compacted earth or other material so that each tyre became a rigid non-compressible body. It is said that the tyre wall should have a non-energy absorbing structure having a smooth continuous face (or there should have been 3 rows of guard rail or a rigid support structure or a concrete wall). It is said that the wall should have been a smooth continuous face so as to prevent a vehicle striking at a shallow angle from “engaging” with the structure, the intention being that vehicles striking at a shallow angle would slide away along the structure. It is said that, to avoid the risk of a vehicle engaging or pocketing with the tyre wall, the provision of a conveyor belt facing the tyre wall would probably have prevented tyres from being dislodged and probably would have prevented a vehicle impacting the wall at a shallow angle from engaging with or pocketing in the tyre wall. Had such a smooth, continuous barrier been in place, it is said, Mr Wattleworth’s car would not have pocketed into the wall as it did and he would not have sustained the fatal injuries as he did. It is further said that the Defendants failed to act upon the guidance in the various promulgated criteria and guidelines. Various other failings are asserted. So far as Goodwood is concerned, it is alleged that it failed to discharge the common duty of care owed to Mr Wattleworth under the Occupiers’ Liability Act 1957 (as amended) or at common law. It is further alleged against the MSA and the FIA that they failed to exercise proper skill and care in and about their inspections; failed to exercise proper skill and care in the advice or recommendations given to Goodwood in respect of circuit safety; and failed to exercise proper skill and care in issuing the Track licences.

[83]All these allegations of breach of duty, as well as causation, are denied by the Defendants. The MSA and the FIA also deny that they owed any duty of care to Mr Wattleworth.

[84]A number of witnesses were called. Mrs Wattleworth (a reliable witness) and Dr Ashton, as expert on circuit safety and accident reconstruction matters, gave evidence for the Claimant. For Goodwood, a number of witnesses gave evidence, including Mr Carter, Mr Goble, Mr Penfold, Mr Caffyn, Mr Humphrey and Mr Brian, all of them open and fair witnesses. The principal witnesses for Goodwood were Lord March (an excellent witness) and Mr Houghton (also an excellent witness, although not claiming total reliability of recollection in all respects). For the MSA, evidence was given by Mr Symes and also Mr Lankshear. Mr Symes was essentially an authoritative and reliable witness but in some important respects, as I shall come on to mention, I was not able to accept his evidence. For the FIA evidence (which was not really much challenged) was given by Mr de Coninck and Mr Brown; and also by Mr Peart, a conspicuously fair and reliable witness.

[85]As to the experts, Dr Ashton, who gave evidence both on circuit safety and on accident reconstruction aspects, came into the case late, a previous expert instructed by the Claimant having unfortunately been taken ill. He first inspected the circuit on 3rd September 2003 and his first report was produced on the 11th September 1993 (when he had not seen any other expert reports). Dr Ashton has enormous experience of highway safety and accident reconstruction matters. He does not however, have expertise as such in motor racing circuit safety matters. He has not himself raced cars nor had he visited other racing circuits to make comparisons or assessments. That lack of specific expertise put him, I think, at some disadvantage. Nevertheless his reports are outstandingly well presented, supported by numerous plans and photographs, and were clearly the product of a careful and considered approach. For the Defendants, Professor Troutbeck was called as expert on circuit safety. Professor Troutbeck has immense experience, both in academic and practical terms, in this field with numerous published studies: and also has personal experience in advice as to circuit design. His reports too are most detailed and thorough. I was impressed by him as a witness and attached very considerable weight to his views. The Defendants adduced the evidence of Dr Searle as expert on accident reconstruction matters. He is greatly experienced in such matters with regard to motor racing. I was assisted by his evidence, although I should record that his evidence was in some respects, in my view, somewhat marred by trenchant dismissal of some of Dr Ashton’s opinions when cross examination showed that Dr Ashton’s views could not be brushed aside quite so readily as Dr Searle would have it. The experts were, I might add, able to come to some measure of agreement as recorded in joint statements submitted to the court before, or at the outset of, the trial.

Medical Issues

[86]The final body of evidence I received was from two consultant neurosurgeons: Mr Gleave for the Claimant and Mr Maurice-Williams for the Defendants.

[87]The reason for this evidence being adduced was that there had been some dispute as to which injury or injuries suffered by Mr Wattleworth actually caused his death; and it was thought that this might have a bearing as to whether the fatal injuries occurred at the first point of impact (as was the Defendants’ case) or the third point of impact (as was the Claimant’s case at trial): and so might be relevant on causation.

[88]Both Mr Gleave and Mr Maurice-Williams are of enormous experience. Mr Gleave was (among other posts and appointments) a consultant neuro-surgeon at Addenbrooke’s Hospital in Cambridge for nearly 30 years until he retired from that post in 1990. Mr Maurice-Williams has been a consultant neuro-surgeon at the Royal Free Hospital since 1980. Mr Gleave considered that the cause of death was a blow to the chest wall associated with the rib injury referred to in the Post-Mortem report. For his part, Mr Maurice-Williams considered that the cause of death was the effect of very severe primary brain injury, giving rise to a massive vagal discharge and arrest of the heart.

[89]On any view, as the post-mortem shows, there had been a massive impact to the skull. As Mr Maurice-Williams put it in evidence the head must have been hit with “tremendous force”. That does not, perhaps, necessarily connote that there had been a massive injury to the brain (as Mr Gleave cautioned) but it is at least a starting-point for such a conclusion. As for Mr Gleave’s theory that a blow to the chest caused the death, the post mortem Report did not even identify the precise location of the rib fracture, as Mr Gleave himself stressed (indeed he on several occasions said that “it is all guesswork” – hardly a good starting point for proof on the balance of probabilities).

[90]In any event in a joint report dated 7th August 2003 Mr Gleave and Mr Maurice-Williams agreed that they would have expected a skull fracture of this severity to be associated with a severe brain injury. They agreed that could lead to a sudden autonomic discharge including a vagal discharge which could affect the heart. Mr Gleave, however, thought that uncommon and stressed that the post-mortem report had not identified brain injury as the cause of death. Mr Maurice-Williams, although expressing himself very tactfully, indicated his surprise at Mr Gleave’s view on this. He himself had experienced many such occurrences (including following car accidents involving significant acceleration and deceleration): albeit in this case there was lacking, in the way of things, pathological evidence as such. He thought, especially given the absence of any other evidence as to damage to the heart or pericardium and the absence of any evidence as to chest injury, that this was the likely cause of death here. Moreover he thought it unsurprising that brain injury was not specifically spelled out by the pathologist in the post-mortem report: for a report of that kind, that would not need saying given the massive nature of the skull injury and might well be taken by a pathologist as a “given”.

[91]I found Mr Maurice-Williams’ evidence on this very cogent. It also essentially accords with the pathologist’s report at the post-mortem. I accept it. I find on the balance of probabilities that, in medical terms, the causal mechanism of death was brain injury leading to a sudden autonomic discharge, including a vagal discharge, causing the resultant asystole.

[92]I further find, on the evidence, that the brain injury leading to the fatal discharge resulted from the basal skull fracture: which fracture (as Mr Gleave indicated in his first report and agreed in cross examination) itself resulted from the impact evidenced by the damage to the lower left side of the helmet. (The accident reconstruction experts, I note, were on occasion a little confused on this). As to the fracture to the left temporo-parietal region, Mr Gleave’s original view was that that was in fact one continuous fracture with the basal fracture: which was also Mr Maurice-Williams’ view. However, after attending a consultation in around early November 2003 with Dr Ashton present Mr Gleave reconsidered the matter and in oral evidence at trial for the first time suggested (as Dr Ashton now had) that there were two separate blows causing two separate fractures. On the whole, I find, on the balance of probabilities, that the fractures were continuous. I also add that Mr Gleave, in his first report, was categoric that a fracture of this type was an impact injury and was “certainly not” a crush injury. At the very end of his oral evidence, however, he faintly suggested that there was a crush injury. I reject that. The relevant injury was, I find, an impact injury.

[93]Both the accident reconstruction experts were agreed that the impact to the lower left of the helmet (clearly a very major impact, accompanied – as evidenced by a notated plan made of the helmet by Mrs Wattleworth’s brother – by denting or distortion to the helmet of a maximum of some 10 millimetres) was occasioned by impact with the diagonal strut of the roll-bar. It thus was that impact which gave rise to the basal skull fracture, which itself gave rise to the brain injury causing death. As to precisely at what stage of the collision that fatal impact to the head occurred I will come on to express my views in due course.

Duty of care

[94]I turn then to the principal issues in this case. The first is the issue as to whether the Defendants owed a duty of care to Mr Wattleworth. The position here is that Goodwood’s primary defence (as advanced by Mr Anthony Barker QC appearing, with Mr Duthie, for Goodwood) is that, while it accepts that it owed such a duty,it discharged such duty as it owed by following scrupulously the advice and recommendations of the MSA and/or the FIA with regard to track safety matters. The position of the MSA and the FIA is that they did not, in the circumstances, owe any duty of care to Mr Wattleworth. If all these defences are right, then – even if there were negligence in the choice of this particular lorry tyre wall facing the earth bank at the Lavant corner – no one would have any liability for it. Not an appealing result.

[95]In my view, however, that is not a conclusion which I am compelled to reach or should reach, on the evidence which I have received.

(i) Goodwood

[96]There can be no doubt that Goodwood itself owed a common duty of care to Mr Wattleworth, under the provisions of the Occupiers’ Liability Act 1957 (as amended). Section 2 of that Act provides as follows:

“2 Extent of occupier’s ordinary duty (1) An occupier of premises owes the same duty to take such care , to all his visitors, expect in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise visitors by agreement or otherwise (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases – (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it so far as the occupier leaves him free to do so. (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)- (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). (6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.”

Mr Glancy and Mr Barker concentrated on that section. It may be that section 5 of that Act is also in point, given that Mr Wattleworth was visiting the circuit pursuant to the contract of hire which he had signed. But it is not suggested anything turns on that, given that the like common duty of care would arise. I should add that, although Goodwood pleaded reliance on section 2(4) (b) of the 1957 Act in its Amended Defence as a defence, Mr Barker did not in his closing submissions place reliance on that subsection as a defence in itself. (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it so far as the occupier leaves him free to do so.

[97]Mr Barker submitted that Goodwood discharged the common duty of care which it owed to Mr Wattleworth. The totality of the evidence demonstrates, he submits, that Goodwood regarded all aspects of safety at the circuit as paramount. I accept that it did indeed do so. He goes on to submit that Goodwood devoted much time and attention to safety issues and set up an appropriate committee, including very experienced persons such as Mr Carter and Mr Nye, among others, to consider all aspects of safety and to ensure that all recommendations were implemented (as they were). I accept that also. Finally – and this is at the heart of his submissions – Goodwood, he said, knew that it was not itself expert in such safety matters. Accordingly it consulted and reasonably and foreseeably relied on the MSA (through Mr Symes) and to some extent the FIA also (through Mr Peart), those bodies both being the acknowledged experts in this field. Mr Symes attended the circuit on a number of occasions. Mr Peart also attended on occasion. Their inspections were thorough. Their subsequent reports and recommendations were also thorough. Certainly Goodwood itself had no reason to think otherwise or to think that what was being recommended was anything other than appropriate – and these were, in the eyes of Goodwood, the acknowledged safety experts. With these submissions I also agree. It follows from all this, he says, that Goodwood discharged its common duty of care.

[98]I agree with that conclusion.

[99]Mr Glancy submitted that there was no evidence to show that Goodwood discussed with the MSA (let alone the FIA) issues or needs arising from amateur track days or Goodwood days, as opposed to specified national events or international events which were licensed by the MSA and authorised by the FIA as the case may be; that it therefore failed properly to instruct the MSA (or the FIA) as to the full intended use of the circuit; and, further, that it failed to give careful consideration to the alterations proposed.

[100]I reject these submissions, having regard to the evidence. The evidence showed plainly that Mr Symes, at least, was fully instructed. He knew precisely what the uses of the circuit at Goodwood were and what they were intended to be (including, among other things, driving of cars by amateur or inexperienced drivers being trained by instructors; testing; track days and corporate days; sprints, and so on; as well as national and international racing events). That, indeed, accorded with his own experience when at Brands Hatch. He liaised fully with Mr Houghton and sat in on some of the committee meetings. The perception of Lord March and Mr Houghton on behalf of Goodwood was that the circuit (including barriers) was safe for all such uses: just because they had been approved by the MSA (and the FIA also). It never occurred to them, nor were they told by the MSA or the FIA, that different precautions with regard to circuit or barriers might be needed for (say) track days, as opposed to (say) an international event such as the Revival Meeting. Besides, the practical reality is that in races such as those there may be many cars on the track at any one time and many will be straining for the very maximum speed. As Mr Houghton put it, he took it that the safety precautions for the Revival Meeting were the “highest common denominator”: and therefore were appropriate for all car racing and driving uses undertaken or allowed by Goodwood at the circuit. Lord March gave evidence to similar effect. As Mr Carter put it, if the circuit was safe for racing then provided it was not altered it was safe for other four wheeled activities, provided also drivers did not go out of the norm. He also added that he did not know to whom else one would turn other than the MSA for advice on circuit safety matters.

[101]I accept that evidence. It is to be noted that it essentially accords with the evidence of Mr Symes and Mr Peart themselves. Thus Mr Symes, who knew of the wide spectrum of uses involved at Goodwood, in terms said that he did not expect the tyre barriers or protective features to be altered during the year. He expected that what had been approved in that regard for the purposes of the Revival Meeting would stay in place thereafter. He accepted that he would expect any precautions that he recommended with regard to barriers would also be adequate for the reasonable safety of inexperienced drivers and for a wide range of cars and would be appropriate for uses such as track days. He agreed that, if he had been specifically asked on the morning of 5th November 1998, had he been present, whether he recommended any alteration to the tyre barriers or tyre walls (or other barriers) at the circuit, he would have said no. He accepted that he expected the lorry tyre wall fronting the earth bank at the Lavant corner on the right side to be, in effect, a permanent feature. Mr Peart likewise expected that these features would remain the same, and that the circuit and barriers were to be regarded as appropriate both for inexperienced and experienced drivers. Mr Peart frankly accepted that he thought Goodwood would rely on his and Mr Symes’ expertise. Mr Peart - who knew, for example, of the driving school at Goodwood – gave evidence corresponding to that of Mr Symes, that he would anticipate that barriers (or other “fixed” facilities) would remain the same for days other than for events specifically licensed by the MSA or approved for the Revival Meeting. Mr Carter, Mr Lankshear, Dr Ashton and Professor Troutbeck gave evidence to like effect. No one knew of any instance of a circuit operator altering barriers, approved by the MSA for licensed events, for the purposes of track days or other such days or uses for which a licence or permit as such was not needed.

[102]In my judgment the evidence demonstrates that, with regard to the circuit (and specifically barriers) Goodwood reasonably relied on the advice of the MSA which had been given fully and proper instructions and which knew of all the proposed uses of Goodwood: and in doing so Goodwood reasonably acted in the belief, shared by Mr Symes and being a belief which Mr Symes appreciated that Goodwood would form, that such barriers, as approved by the MSA, were appropriate also for use on days which were not MSA licensed events. Further, such advice, as Goodwood understood, had in effect been endorsed by the FIA also.

[103]I also unhesitatingly reject the submission that Goodwood failed to give careful consideration to the proposals or to make any sufficient risk assessment. On the contrary Goodwood, which throughout had been scrupulous in its attention to safety, had fully apprised itself as to the alterations and in the relevant respects discussed them, and agreed them, with Mr Symes.

[104]Mr Glancy then submitted that in any event Goodwood was liable just because (as was the Claimant’s case ) the barrier at this section of the Lavant bend was unsafe and negligently designed. He further submitted that Goodwood’s remedy, if it had relied on the MSA and the FIA, lay in contribution proceedings against the MSA or the FIA. But in my view that is not right. The 1957 Act does not impose strict liability: on the contrary section 2(2) stipulates that the requisite care is to be such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe. Mr Glancy sought to say that the Act distinguishes between liability for acts and liability for omissions. With regard to the latter, he submits, the position remains governed by the statements of principle made with regard to an occupier of a motor racing circuit by Scrutton LJ in Hall v Brooklands Auto Racing Club

[1933] 1KB 205

at p215, where he said this:

“He does, however, warrant, not only that there shall be due care on the part of himself and his servants, but also that there shall be due care on the part of any independent contractor who may have been employed by him in the construction or repair of the premises. The principle is that where a legal duty is incumbent on a person, that duty is not discharged by employing a contractor who imperfectly performs it.”

But that was said in the context of a case occurring before the passing of the 1957 Act. In my view, that common law proposition has been overtaken by that Act, which substantially altered the pre-existing law. It is true that section 2(4) (b) provides specifically that an occupier is not (“without more”) liable for the faulty execution of work of an independent contractor reasonably employed. But it does not follow that the occupier is necessarily liable for the faulty omissions of such an independent contractor. Indeed sub-section (4) (b) is in terms stated to be by way of example: and I can see no reason to gloss or delimit section 2(2) in the way Mr Glancy’s argument would suggest.

[105]One can see policy arguments (reflected in some of the pre-1957 Act cases) as to why liability should in such cases be fixed on the occupier, leaving him to recover contribution from the independent contractor if he can. But those policy arguments can be taken to have been addressed by the 1957 Act.

[106]In my judgment therefore, Goodwood did discharge the common duty of care owed by it to Mr Wattleworth. It did so by properly instructing the MSA, the acknowledged experts in this field, and liaising closely with the MSA and FIA; it followed the detailed recommendations of the MSA and the FIA to the letter; and it had no reason to think that the barriers recommended as appropriate in 1998 by the MSA for the purposes of the licences were anything other than appropriate for the other motor racing and driving activities at the circuit, and every reason to think that they were. (ii). The MSA

[107]The evidence which leads me to that conclusion with regard to Goodwood also leads me to the conclusion that, in the circumstances of this particular case, the MSA did owe Mr Wattleworth a duty of care with regard to its recommendations as to the lorry tyre faced earth bank at the Lavant bend.

[108]Mr Eklund for the MSA and Mr Fenwick QC (who, with Mr Popat, appeared for the FIA) referred me to a number of authorities in this context, including, among others, the all too familiar Donoghue v Stevenson

[1932] AC 562

and Hedley Byrne & Co Ltd v Heller

[1964] AC 465

. Mr Fenwick, in particular, stressed the well known statement of Lord Bridge of Harwich in Caparo Industries plc v Dickman

[1990] 2 AC 605

at p617:

“What emerges is that, in addition to 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 is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the law 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”

. That case, of course, was one involving economic loss, not personal injury.

[109]Rather closer to the present case (albeit with differences on the facts) are the cases of Perrett v Collins [1998] 2 LL. Rep 255 and Watson v British Boxing Board of Control

[2001] QB 1134

, both being decisions of the Court of Appeal.

[110]In Perrett, Mr Collins was a member of the Popular Flying Association. Under the regulatory scheme contained in the Civil Aviation Act 1982 the Association’s inspector was required to inspect and approve an aircraft, constructed by Mr Collins from a kit, before a certificate of airworthiness could be obtained. The owner (Mr Collins) had, as the inspector appreciated, installed a gearbox different to that supplied by the manufacturer. In due course, the inspector certified the aircraft as fit to fly. Shortly thereafter the aircraft crashed and the claimant (Mr Collin’s passenger) was injured. It was alleged, among other things, that the inspector and the Popular Flying Association were negligent in that the aircraft did not have a propeller matching the gearbox fitted to the engine (of which gearbox the inspector was aware). They denied that they owed a duty of care to the claimant, and that matter was dealt with as a preliminary issue. It was held, upholding the decision at first instance, that a duty of care was owed. It was held that it was foreseeable that if the inspector and the Association granted a certificate of fitness to fly in respect of this aircraft with an inappropriate gearbox there was likely to be an accident and they ought reasonably to have had in contemplation a person travelling as a passenger as being so affected when they were directing their minds to the relevant acts or omissions.

[111]A feature of that case is that Hobhouse LJ deprecated the over-ready deployment of the tripartite “test” enunciated by Lord Bridge in Caparo (an economic loss case) to cases of personal injuries. The Court of Appeal also made clear that the decision of the House of Lords in Rich (Marc) & Co. A.G v Bishop’s Rock Marine Co. Ltd

[1994] 1 WLR 1071

– itself an economic loss case and which had special features relating to cargo claims – did not warrant such an approach in personal injury cases. At p261 Hobhouse LJ said this:

“In cases of personal injury, it suffices that the activity of the defendant has given rise to the situation which has caused the injury to the plaintiff. Where the defendant is involved in an activity which, if he is not careful, will create a foreseeable risk of personal injury to others, the defendant owes a duty of care to those others to act reasonably having regard to the existence of that risk. The limiting factors are the concepts of foreseeability and reasonableness. (e.g. Woods v. Duncan [1946] A.C 401).”

And at p262 he said this:

“Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury. Once this proximity exists, it ceases to be material what form the unreasonable conduct takes. The distinction between negligent misstatement and other forms of conduct ceases to be legally relevant, although it may have a factual relevance to foresight or causation. Thus a person may be liable for directing someone into a dangerous location (e.g. the Hillsborough cases; e.g. Sharpe v. Avery,[1938] 4 All E.R. 85) or a producer may be liable for the absence of an adequate warning on the labelling of his product (e.g Heaven v. Pender, (1883) 11 Q.B.D 503 at p.517, per Lord Justice Cotton). Once the defendant has become involved in the activity which gives rise to the risk, he comes under the duty to act reasonably in all respects reLavant to that risk. Similarly none of the particular difficulties which arise in relation to economic loss arise in relation to the causing of personal injury. Once proximity is established by reference to the test which I have identified, none of the more sophisticated criteria which have to be used in relation to allegations of liability for mere economic loss need to be applied in relation to personal injury, nor have they been in the decided cases.”

[112]In the course of his judgment, Swinton Thomas LJ considered whether or not “lesser injustice” would be caused depending on whether or not a duty of care was owed. He concluded that a greater injustice would be caused if it was held that those responsible for issuing the certificate did not owe a duty of care. He also said that the inspector approved the gearbox, certified the aircraft as safe to fly, and voluntarily assumed the responsibility of issuing the certificate and, in effect, of certifying that the aircraft was safe.

[113]Buxton LJ likewise considered that the close involvement of the inspector and Association (whose role was intended to facilitate the construction and flying by Mr Collins of the aircraft) brought the case “well within” the category of direct physical injury as recognised by the authorities. Buxton LJ also agreed that the fact that the claimant’s claim was for foreseeable physical injury was “a potent factor pointing to the existence of a duty”.

[114]Watson is further removed from the present case. Mr Watson sustained head injuries in a boxing match, the fight being regulated by the defendant board, the sole body controlling professional boxing in the UK. He alleged negligence on the part of the board on the basis that it owed him a duty to see that all reasonable steps were taken to ensure that he received immediate and effective medical treatment should he sustain injury at the fight; and alleged that the board was in breach of such duty. The claim succeeded, and an appeal by the board was dismissed. After summarising the facts and reviewing the authorities Lord Phillips of Worth Matravers MR said this at paragraph 49 of his judgment (with which May LJ and Laws LJ agreed). “49. It seems to me that the authorities support a principle that, where A places himself in a relationship to B in which B’s physical safety becomes dependent upon the acts or omissions of A, A’s conduct can suffice to impose on A a duty to exercise reasonable care for B’s safety. In such circumstances A’s conduct can accurately be described as the assumption of responsibility for B, whether “responsibility” is given its lay or legal meaning.” And at paragraph 72, after reviewing further authorities (including Perrett), he said this:

“These cases establish that, where A advises B as to action to be taken which will directly and forseeably affect the safety or well-being of C, a situation of sufficient proximity exists to found a duty of care on the part of A towards C. Whether in fact such a duty arises will depend upon the facts of the individual case and, in particular upon whether such a duty of care would cut across any statutory scheme pursuant to which the advice was given.”

Lord Phillips went on to consider whether it was fair just and reasonable to impose a duty of care. He said this at paragraph 87:

“87. While I do not agree with Mr Mackay’s submission that Perrett v Collins [1998] 2 Lloyd’s Rep 255 provides a close analogy to the present case, I do find helpful the formulation of legal principle by Hobhouse LJ, at p262, which I have set out above. Mr Watson belonged to a class which was within the contemplation of the board. The board was involved in an activity which gave it, not merely a measure of control, but complete control over and a responsibility for a situation which would be liable to result in injury to Mr Watson if reasonable care was not exercised by the board. Thus the criteria identified by Hobhouse LJ for the existence of a duty of care were present. In this case the following matters are particularly material. (1) Mr Watson was one of a defined number of boxing members of the board. (2) A primary stated object of the board was to look after its boxing member’s physical safety. (3) The board encouraged and supported its boxing members in the pursuit of an activity which involved inevitable physical injury and the need for medical precautions against the consequences of such injury. (4) The board controlled every aspect of that activity. (5) In particular, the board controlled the medical assistance that would be provided. (6) The board had, or had access to, specialist expertise in relation to appropriate standards of medical care. (7) The board’s assumption of responsibility in relation to medical care probably relieved the promoter of such responsibility. If Mr Watson has no remedy against the board, he has no remedy at all. (8) Boxing members of the board, including Mr Watson, could reasonably rely upon the board to look after their safety. 88. All these matters lead me to conclude that the judge was right to find that the board was under a duty of care to Mr Watson.”

It is to be noted that the fact of the board’s complete control of the match and of Mr Watson’s actual reliance on the Board in looking after his safety were important features in that case. An appeal to the House of Lords was not, as I was told, pursued.

[115]I was also referred to the House of Lords decision in Tomlinson v Congleton BC

[2003] 2 WLR 1120

;

[2003] UKHL 47

. That was a case very different to the present case on the facts. But it is a salutary reminder (at a time when, in the perception of some, a “compensation culture” prevails) of the proposition that an occupier of land will ordinarily not be under a duty to prevent people from taking risks inherent in activities freely undertaken: and that accidents may happen without liability accruing to an occupier.

[116]Mr Eklund submited that, in the circumstances of the present case, no duty of care was owed by the MSA to Mr Wattleworth. He made the following submissions in particular:116.1 The licensing of circuits by the MSA is simply part of the management of risk in motor racing.

116.2 In respect of MSA events, the MSA seeks to put in place a system of controls, in accordance with its regulations, and to authorise the actual track so as to minimise accidents as well as by ensuring that the track has protective devices where necessary.

116.3 A Track licence and the exercise of other controls are inter-dependent.

116.4 It is not open to the Claimant to fasten onto one part of the MSA’s control which it exercises for the management of risk without regard to the other controls and checks in place.

116.5 There was no evidence of Mr Wattleworth placing any reliance on any MSA licence or approval when hiring the circuit for the track day to be held on 5th November 1998.

116.6 To impose a duty of care on the MSA would give rise to a liability to an indeterminate class.

116.7 The only classes of persons whom the MSA had in contemplation when licensing the track were those who would accept the regulations and controls of the MSA, as is required by the Track licence and event permit: thus the duty extended only to those participating in MSA events (Mr Eklund stressing that the MSA Track licence, and event permit, were only required for such events: they were not required for track days as such at all).

116.8 In contrast to both Perrett and Watson, the MSA here, if it is to be styled as a regulatory authority, did not exercise control over track days (or any other non-MSA event). In Perrett, on the other hand, the inspector had, in effect, certified the aircraft as fit for use. In Watson the Board exercised entire control over the match in question. 116.9. It would not be fair, just or reasonable to impose a duty of care on the MSA in all the circumstances.

[117]On the facts of this case, I reject the submission that the MSA did not owe a duty of care to Mr Wattleworth.

[118]It is quite right, I accept, that Goodwood did not require an MSA Track licence or event permit for the track day. Indeed in some previous years Goodwood may (perfectly lawfully) have operated at the track without a Track licence; and at the time Mr Wattleworth contracted to hire the circuit on this occasion the only MSA licence then extant related to sprints. I also accept that there is nothing to show that Mr Wattleworth, in hiring the circuit, specifically relied on the existence of any MSA licence (even though, as I find, he must have thought that the MSA would have had some involvement in regulatory terms with regard to the circuit). However while reliance was important in the Watson case, I do not think the lack of specific reliance here is of itself dispositive of the question of whether a duty of care was owed. After all the claimant in Perrett – Mr Collins’ passenger – presumably did not know of or rely on the inspection before agreeing to fly in the plane. In the present case I consider that in using the circuit Mr Wattleworth, in common with other lawful users, was entitled to assume and would have assumed that all due care had been exercised by the persons – whoever they be – who had undertaken responsibility for safety matters.

[119]Mr Eklund, by reference to the MSA Regulations incorporated by the standard terms of the Track licence, took me through a whole raft of measures and provisions relating to the use of the circuit at the Revival Meeting: for example, those contained in the Regulations relating to control and testing of drivers, scrutineering of cars, fire precautions, medical matters and so on. He stressed that these related to the event in question – over which, he accepts, the MSA can be said to be in control – but not to any other, non-MSA, events.

[120]If one focuses simply on the terms of the licence, and incorporated regulations, Mr Eklund’s submissions might well be right. But in my judgment, on the facts here, the MSA assumed a responsibility going well beyond the mere authorisation of events for which an MSA Track licence and event permit was required. In my view, the MSA, through Mr Symes was plainly giving advice to Goodwood both as to the circuit and as to the protective devices to be deployed around the track, when it contemplated and expected that such advice would be acted upon by Goodwood not only with regard to the MSA events but also with regard to other motor car uses of the circuit. It is plain to me, accepting, as I do, the evidence of Lord March and Mr Houghton in this regard, that Goodwood itself did so rely on the MSA. Had Mr Symes made different recommendations with regard to the circuit or protective barriers then Goodwood would have followed such recommendations for all motor racing and other motor car purposes at Goodwood. Mr Symes knew of such other uses. He knew, for example, that they included track days, testing days and driving instruction. He fully expected that his recommendations with regard to the circuit and barriers would be effected by Goodwood across the board and would be in place for non-MSA events throughout the year. He had a measure of control in this context – for in practical terms what he said went. As I find, his perception was the same as that of Lord March and Mr Houghton (and, indeed, Mr Peart): that such recommendations, albeit ultimately made in the context of the forthcoming Revival Meeting to be held in September 1998, were to be taken as “the highest common denominator” suitable for all foreseeable motor car uses at Goodwood and were applicable to a wide range of cars and as much to young or inexperienced drivers (who may not even hold an MSA licence) as to experienced drivers. As I have already indicated, Mr Symes confirmed in evidence that he expected the protective barriers in place at occasions such as track days to be in the form which he had approved on his inspections. He thought they were safe for that purpose and for all other foreseeable motor car uses at the circuit.

[121]The extent of Mr Symes’ involvement with the safety procedures adapted with regard to the track and protective barriers is amply borne out by the contemporaneous documents. He was involved at all relevant times. He inspected the track frequently. He occasionally attended Goodwood committee meetings discussing safety issues. He liaised closely with Mr Houghton in particular on such issues. It is, I think, also of note that, when the fatal accident to Mr Wattleworth occurred on 5th November 1998, it was Mr Symes whom Mr Houghton immediately contacted; and Mr Symes promptly re-inspected the lorry tyre faced earth bank at the Lavant bend. Mr Symes did not adopt the attitude that it was nothing to do with him since the accident had occurred at a non-MSA event. That simply confirms what I, in any event, find to be the case – that the MSA had, with regard to the circuit and safety barriers at Goodwood, voluntarily adopted an advisory role going well beyond the limited role of licensing or authorising MSA events. Indeed given the acknowledged expertise of the MSA and the universal desire to achieve high safety standards for a circuit that is an entirely understandable and responsible position for the MSA to have taken.

[122]Mr Eklund complained that, if a duty were owed, the MSA might find itself having a potential liability to, say, a driver who had not been permitted (under MSA regulations) to participate at, say, the Revival Meeting and/or whose car would not have passed scrutineering at the Revival Meeting but who nevertheless thereafter drove on, say, the circuit on a track day. I am unmoved by that. I see no reason why a duty of care should not, in principle, be owed in such circumstances where such driver with such car was foreseeably (and as foreseen by Mr Symes) of a kind who might use the track. Nor am I moved by the assertion that the MSA would find itself having a liability to an indeterminate class. The liability is simply to those using the circuit of Goodwood within the contemplation of the MSA, in circumstances where the MSA had in practice a degree of control over the circuit and the safety barriers and when it had taken responsibility, with regard to the circuit and safety barriers, for a situation which if dangerous would be liable to cause injury to a driver who crashed. There are many contexts where a liability may exist in tort even where the class is, in a sense, indeterminate: consumers of a food product, users of a supermarket, visitors at a football stadium. The position here is quite different from, for example, the Australian case of Agar v Hyde

[2001] CLR 552

[2000] HCA 41, which was cited to me.

[123]I also do not accept Mr Eklund’s submission that the Claimant is here illegitimately “cherry-picking” with regard to one aspect of the MSA’s involvement. His submission was that one cannot separate out the MSA’s risk management functions with regard to the track and safety barriers from all the other MSA checks and controls applicable (with regard to drivers and so on). But, really for the reasons I have already given, I do not see why not. I see no reason, pace Mr Eklund, to think in terms of a duty of care as being owed by the MSA either without qualification or not at all. In all such cases enquiry has to be made as to the scope of the duty of care, just as inquiry has to be made as the kind of damage accruing to a claimant which it is said a defendant is under a duty of care to avoid causing. The circuit and safety barriers as to which Mr Symes (and Mr Peart) gave advice were in a sense “immoveables” (even if perhaps, in the case of tyre barriers, not in a land law sense), which Mr Symes (and Mr Peart) understood would be in place for all motor car purposes, subject to any alteration first approved by the MSA, throughout the year. It is plain, on the other hand, that the MSA did not assume a responsibility for the provision of driver testing, marshalling, ambulances and so on for non-MSA events. It is also plain that Goodwood itself did not proceed on the footing that the MSA had assumed any responsibility in such respects. It thus is to be noted that, for example, Goodwood had its own requirements for marshals on track days. If injury was occasioned to a driver on a track day (or any other non-MSA event) by, say, a failure to provide proper marshalling or medical services then, in my view, no liability would have attached to the MSA – whether for want of a duty of care or on causation grounds or both.

[124]I also find, given the evidence, that the MSA did not disclaim the assumption of responsibility with regard to its advice as to circuit and safety barriers for all foreseeable motor car use purposes at the circuit throughout the year. Clearly the MSA gave no guarantee as such (a point worth emphasising, perhaps, since on occasion at trial the Claimant’s case came close to saying that there must have been negligence on the part of someone just because Mr Wattleworth was killed). That would be so quite apart from the statement to that effect in the Track licence. In my view, however, the printed terms and conditions on the form of Track licence extant in 1998 did not displace the general assumption of responsibility with regard to track and safety barriers communicated, by his acts and recommendations, by Mr Symes on behalf of the MSA to Goodwood. Indeed conditions 2, 5 and 9 of the Track licence are themselves at least consistent with a duty going beyond the MSA events in question. In my view, given the wide advisory role adopted by the MSA with regard to the Goodwood circuit, far clearer and more explicit wording was needed to bring home that no responsibility was to be taken as accepted by the MSA save for the MSA event in question.

[125]Mr Symes himself gave no qualification, either orally or in writing, to his advice to Goodwood on the circuit and safety barriers. He did not say that his advice was confined to the MSA events – in fact, as I have found, his own mindset was that his recommendations would apply (and would be applied by Goodwood) to non-MSA events. It was put by Mr Glancy to Mr Symes that, if he really wished to restrict his advice to the Revival Meeting or MSA events, he should have said so. His reply was “I don’t think so”; and he went on to maintain that his advice was specific to MSA events. I reject that: that seems to me to be quite contrary to the whole course of conduct. Indeed it is just because Mr Symes did not so qualify or disclaim his advice that Goodwood predictably relied up on it as applicable to non-MSA events. Had the MSA given such a disclaimer I think it probable that Goodwood would have sought further advice from some other source with regard to track and barriers for non-MSA events. (Had Goodwood failed to do so in the light of any such disclaimer by the MSA - had there been one - my conclusion as to whether Goodwood discharged the common duty of care by seeking and following the advice of the MSA doubtless would have been different).

[126]I therefore conclude that the MSA in these respects owed a duty of care both to Goodwood with regard to non-MSA events and to Mr Wattleworth.

[127]It is appropriate to test this conclusion against a schematic application of Lord Bridge’s so-called “tri-partite test”. I bear in mind Hobhouse LJ’s warning: particularly relevant, I would think, where there has, as here, been an assumption of responsibility. But it is, I think, also of note that the judgment of Swinton Thomas LJ in Perrett followed Lord Bridge’s approach; and that approach also featured in Watson. Doing that, I see no reason to depart from this conclusion. Rather it, to my mind, confirms it. The test of foreseeability is plainly satisfied; indeed the fact that the Claimant’s claim here is for foreseeable physical injury in my view is (as it was in Perrett) of itself a “potent factor” pointing to the existence of a duty. The test of proximity is in the circumstances also, I consider, satisfied. Nor, given the circumstances and notwithstanding all the points advanced by Mr Eklund, do I see anything unfair, unjust or unreasonable in imposing a duty of care on the MSA. In this context considerations of safety are of paramount importance (and were rightly so regarded by Goodwood, the MSA and the FIA). A conclusion which encourages the acceptance of responsibility and liability by those choosing to involve themselves in safety considerations is surely, all other things being equal, desirable. As Swinton Thomas LJ said in Stratton v Hughes (CA, unrep: 17th March 1998):

“Those who organise and control sports such as these must take reasonable care in relation to the layout and the organisation.......”

That was said in the context of a case where the Defendant included not only the owner and occupier of a race circuit but also the MSA (the event in question being, it should be added, an MSA event).

[128]Mr Eklund referred, in somewhat doom-laden tones, to the implications for insurance (if available at all, he and Mr Fenwick pessimistically mused) if liability were held to attach in such circumstances. But, just as in Perrett, neither that nor speculation as to the possible opening of floodgates displace, in my view, the desirability or reasonableness of a duty of care being imposed. As it happens, as Mr Lankshear told me, the MSA currently does have insurance against contingencies such as the present claim. But even if insurance costs rise in consequence of a duty of care being held to exist in circumstances such as the present that seems to me to be more than counterbalanced by the prospective enhancement of consideration being given to safety matters and by the enhanced protection of drivers. No doubt the MSA could seek to pass on the extra cost of insurance to circuit owners - to the extent that is in due course recovered by circuit owners from the drivers, I suspect most would readily accept such extra cost, given the purpose. Besides the MSA could – if it sees fit to do so – seek to minimise its exposure by appropriate explicit disclaimers: although it is to be hoped that the MSA will continue to acknowledge its role as acknowledged expert in continuing generally to advise circuits, when asked to do so, on circuit safety matters.

[129]Mr Lankshear, echoing something Mr Symes had said, said that Mr Symes had no “remit” to go beyond recommendations for licensing MSA events only. If that is intended to convey some kind of defence of want of authority (although none such in any case seems to be pleaded) I reject it. It may well be, given the long history of Mr Symes’ advice and letters to Goodwood from him on MSA notepaper, that it can be inferred that he had actual authority to tender advice designed to be applied to events and uses at Goodwood over and above MSA events. In any event, on the evidence, I conclude that Mr Symes was held out by the MSA as being authorised to do so and thus had apparent authority.

[130]In a carefully crafted paragraph of his witness statement Mr Symes said this:

“18. In licensing a venue for MSA events I would not have taken into account the wide range of drivers who may take part in non MSA events – I am not authorising the venue for every potential use of it. I have to anticipate that those taking part have knowledge and experience of racing (i.e. they will have a MSA competition licence). They may drive a circuit in a wholly different way from someone who has no previous racing experience. For example licensed racing drivers will take predictable racing lines as a result of which you can better anticipate angles and areas of impact on the track and plan safety features accordingly. A driver with no race training or experience may drive in a less predictable way and could come off the track at different points or at different angles. If a circuit was being designed to cater for such drivers it would have to be designed differently, for example to limit speed and provide greater run off areas in parts of the track where you might not reasonably anticipate a racing driver to come off, but where a non racing driver might. A number of circuit operators have mentioned to me that they often find participants in track day activities incur accidents of a different nature and at different locations to those experienced in MSA authorised competition. For a venue such as Goodwood this would probably involve considering moving the track, making it smaller to create bigger run off areas, and moving the spectators further from the track.”

Although Mr Symes in some respects sought to maintain this in his oral evidence and continued to assert that he did not consider that he had accepted responsibility for non-MSA events, Mr Symes in substance significantly departed from this in his cross-examination, taking it as a whole: for example, by his acceptance that his recommendations with regard to circuits and barriers would be appropriate for drivers, even if inexperienced foreseeably using the circuit at Goodwood; his acceptance that he knew of the other uses (eg track and training days) at Goodwood and that he did not expect the circuit or barriers to be any different for those days; his acceptance that, if specifically asked, on the 5th November 1998, whether he would have made any different recommendation with regard to the circuit and barriers, he would not. I reject Mr Symes’ evidence as set out in this paragraph of his witness statement (and I also record that Mr Peart – a conspicuously even-handed witness – had difficulty in associating himself with it). To the extent that Mr Lankshear adopted the same party line I reject that too.

[131]Finally in this context if I further test the conclusion by asking (as did Swinton Thomas LJ and Buxton LJ in Perrett) whether greater injustice would be caused by imposing a duty of care or not imposing a duty of care, my view is that greater injustice would be caused if no duty of care was found to be owed by the MSA to Mr Wattleworth. (iii). The FIA

[132]I turn then to the question whether the FIA owed a duty of care to Mr Wattleworth.

[133]It is very tempting to say that just because (as I have found) the MSA owed a duty of care to Mr Wattleworth then so also must the FIA. After all Mr Peart inspected the circuit himself; he approved Mr Symes’ proposals; and he also made certain proposals himself on behalf of the FIA. He, too, like Mr Symes, contemplated that his proposals with regard to circuit and barriers would be applied and maintained by Goodwood throughout the year with regard to other motor car uses of the circuit: and had he made recommendations specifically with regard to the lorry-tyre faced earth bank at the second part of the Lavant bend these would have prevailed.

[134]However, matters are not, I think on reflection, quite so simple.

[135]Mr Fenwick at one stage suggested that the FIA could not owe a duty of care since the FIA never advised on the installation of the earth bank (which gave rise to the potential danger) in the first place – rather it was installed by Goodwood to meet Local Authority noise requirements even before Mr Peart inspected the track. That particular point does not greatly impress me. Mr Peart was inspecting, and making recommendations on, all parts of the circuit as he found it (including the earth bank at Lavant) in the expectation that where he made specific recommendations further to those of Mr Symes those would be carried out and where he did not that would be taken as approval on his part. That certainly cannot be taken as a “pure omission” in the sense connoted in Smith v Littlewoods Organisation Ltd 1987 2AC 241.

[136]Mr Fenwick (who in fact made his closing submissions before Mr Eklund) made, mutatis mutandis, with regard to the FIA many of the points to which I have referred already with regard to the MSA. Nevertheless there are other features which distinguish the position of the FIA from the MSA. The principal ones, in my view, are these:136.1 The involvement of the FIA (and Mr Peart in particular) at Goodwood was far less than that of Mr Symes. His inspections and attendances were much less frequent and he had much less contact with Mr Houghton or Lord March. It is to be noted that it was also left to Mr Symes of the MSA to check that Mr Peart’s recommendations in 1998 had been carried out.

136.2 Mr Peart, unlike Mr Symes, had a far hazier idea of what other uses of the circuit at Goodwood might be undertaken. He did, I find, know that there would most probably be uses other than for FIA or MSA authorised events and he knew, for example, that a driving school operated there: but he had a much less clear picture than Mr Symes of what the various uses might be. Mr Peart was also, in his inspections and reports, focusing on the Revival Meeting, as he told me, and was equating it with a Restricted Event (see Article 19 of the Code).

136.3 No licence at the relevant times was issued by the FIA (contrary to the pleaded case of the Claimant). The national and international licences were issued by the MSA. (Indeed, even when the FIA eventually did issue a circuit licence, on the 5th June 2001, for the Goodwood circuit that in terms was issued to the MSA and on terms that it did not relieve the MSA of its own obligations as to safety).

136.4 The terms of the Code, the structure of the FIA and the way in which its dealings with the relevant national sports association are conducted show that primary responsibility with regard to safety at circuits for licensing purposes is left to the national sports association in question.

136.5 Article 4.5 of Appendix O to the International Code provides that a standard fee for the FIA inspection is to be paid by the national sporting association- not the circuit owner. I did not understand Goodwood to have paid any fee direct to the FIA: on the contrary, the evidence of Mr de Coninck was that the FIA charged the MSA (emphasis added) 4,000 Euros for the FIA inspection in 1998. It is also, I note, provided that only inspection reports sent from the FIA offices to the national sporting association concerned should be valid. It is further to be noted that most (if not all) of Mr Peart’s written communications about the Goodwood circuit were directed to the MSA.

136.6 The licences, although said to be in part based on FIA safety criteria, made clear that the MSA also based its requirements “on its own information and studies”. The licence conditions incorporated the MSA Regulations – not any of the FIA.

136.7 The role of the FIA was (and was perceived to be, both by Goodwood and also, if it be relevant, I have no doubt, by Mr Wattleworth) with regard to international events – that is, those entered on the International Racing Calendar. It had no function at all with regard to national events, let alone uses such as track days.

136.8 Perhaps reflecting the foregoing, it was clear to me from the evidence of Mr Houghton and Lord March that it was primarily the MSA (and, specifically, Mr Symes) to whom Goodwood was looking for guidance on circuit safety and on whom it was relying. I think Goodwood did place some reliance on the FIA – indeed the minutes of the meeting of 7th February 1997 show that Lord March was anxious that what was done would ultimately satisfy the FIA. Nevertheless it was Mr Symes to whom Goodwood principally looked in these respects and when it wanted advice or wished to make its own proposals it was him, on behalf of the MSA, it approached.

136.9 The role of the FIA was, in effect, at one remove from that of the MSA. Mr Peart was minded to agree that he was, in effect, “auditing” the judgment of the MSA (Mr Symes).

136.10 The FIA in general terms had to concern itself with all the scores of countries from which its members were drawn. It did not have specialist country knowledge.

[137]Overall what it really comes to, as Mr Fenwick observed, is that Mr Peart knew that the circuit would be used for events not being international events; and that it was both foreseeable and likely that any recommendations as to tyre faced earth banks made by Mr Peart would be implemented and be in place for “non-international” events. On balance, and bearing in mind the factors set out above distinguishing the position of the FIA from the MSA, I conclude that those two points are not sufficient to show that the FIA itself owed a duty of care to users of the circuit such as Mr Wattleworth. In my view, the relatively limited nature of what Mr Peart undertook (designed to ensure that the FIA would authorise the Revival Meeting to appear in the International Racing Calendar) did not amount to an assumption of responsibility with regard to the track and barriers towards users of the circuit such as Mr Wattleworth at non-international events. After all it was only because of the Revival Meeting in September 1998 that the FIA had any involvement at all: whereas in practical terms it was always going to be the case that a circuit such as Goodwood would be likely to require a MSA inspection, which also explains why it was to the MSA that Goodwood really looked for advice.

[138]I think I am also entitled to have at least some regard in this context to the fact that I have found that the MSA itself did owe a duty of care in the relevant respects. That, I accept, cannot be determinative (I add that no issue as to solvency, as it happens, arises in this case but that cannot really be a relevant consideration). Nevertheless, the fact remains that the relationship of the MSA to Goodwood was far closer than that of the FIA: and I am, I think, entitled to bear in mind the (relative) lack of proximity on the part of the FIA, as compared to the MSA, with regard to Goodwood in deciding whether or not the FIA owed a duty of care to users of the circuit such as Mr Wattleworth. It is also not unreasonable, I think, to indicate that a line should be drawn somewhere, in terms of liability: the more so when, by reason of its involvement in international events, the FIA has to concern itself with many scores of countries other than the UK and essentially primarily entrusts circuit safety matters to national sporting authorities. I was impressed by the evidence of Mr de Coninck and Mr Brown in this respect.

[139]I therefore hold that no duty of care was owed by the FIA to Mr Wattleworth.

Standard of care

[140]It was not disputed that the test to be applied here was that to be found set out in the well known medical negligence case of Bolam v Friern Hospital Management Committee

[1957] 1 WLR 582

. The application of that principle to cases of motor racing safety was considered by Steel J appropriate in Stratton v Hughes at first instance (whose judgment was upheld in the Court of Appeal).

Breach of duty of care

[141]There was a very great conflict between the experts as to the appropriateness of the lorry tyre faced earth bank at the interior of the second part of the Lavant bend in place on 5th November 1998. Dr Ashton was critical of it. Professor Troutbeck, on the other hand, stated that it was acceptable – stating indeed that by that he meant that he did not think that a better structure could have been installed. Mr Symes and Mr Peart also defended their approval of the lorry tyre faced earth bank as appropriate.

[142]A distinction is drawn in much of the relevant literature between a tyre barrier and a tyre wall: although that distinction was not always observed in the contemporaneous correspondence. A tyre barrier (sometimes also known as a tyre buffer) is a structure made of tyres whose primary function is to absorb energy. A tyre wall is a structure made of tyres whose primary function is to provide a vertical face to an earth bank and thus prevent vehicles from travelling up onto, and over, the earth bank (and so from striking any spectators at the top of or behind the bank). The distinction is clearly marked in the FIA internal guidelines. It is also clear that the recommendations for tyre barriers contained in Article 5.2.4 and Appendix 5 relate to tyre barriers as such, and contemplate that such barriers may be in front of a “permanent barrier”; and must be to a minimum height of 1 metre. That Appendix does not relate to lorry tyre walls facing an earth bank. The recommendation for such tyre barriers involve bolted car (not lorry) tyres, laid vertically. The “strong recommendation” is for that barrier to be covered by a continuous flexible belt as improving “the integrity and effectiveness” of the tyre barrier system. The evidence before me established that that related to the fact that such a conveyor belt (a very flexible membrane) on high angle impacts would assist in spreading the impact forces onto adjoining tyres. The recommendation for belting such a tyre barrier was not, I find, related to any propensities for facilitating sliding in the event of low angle impacts. Article 8 of Appendix O of the Code designates an angle as “low” if less than 30°. Article 3 and Appendix 3 of the RAC Safety Criteria (withdrawn in 1995) are to similar effect – although without the specific recommendation of flexible belting – as are paragraphs 21 to 25 of the Health and Safety Guide. Thus tyre barriers are principally recommended in circumstances where there is a probability of a high angle impact.

[143]Thus as at 5th November 1998 what was in place at the relevant part of the Lavant bend was a first line of protection properly designated as a “tyre wall”: that is, lorry tyres, filled with earth, laid horizontally in house brick fashion and directly fronting the earth bank. But since the spring of 2000 (and still in place) there has been added a “tyre barrier”, comprising car tyres stacked vertically and bolted to each other and to the lorry tyres, with plastic bags filled with Recticel inserts, and fronted by a conveyor belt bolted to the car tyres.

[144]As I have said, the pleaded criticisms of the structure in place at the 5th November 1998 are wide ranging. Some quickly fell away – for example, Dr Ashton readily accepted that a concrete barrier could not be recommended; nor did he say that an Armco barrier was requisite. Ultimately his criticism of the neglect which he identified crystallised, as he told me in the course of re-examination, as a criticism of the failure to provide conveyor belting; either bolted directly on to the lorry tyre wall or (his preferred option) bolted on to a car tyre barrier itself bolted on to the lorry tyre wall. In effect what he said was that what was eventually installed at this part of the Lavant bend in spring 2000 should have been installed by November 1998; and, had it been, Mr Wattleworth would not, he said, have suffered his fatal injuries.

[145]In this context an appreciation of the likely impact of collision at this spot is most important. As stated in Appendix O to the Code and as further reflected in the FIA Internal Guidelines, RAC Safety Criteria and Health and Safety Guide, where the “probable” or “likely” impact is low (less than 30°) a continuous, smooth and vertical barrier is preferable; where the probable impact angle is high, arrestor devices should be used (a car tyre barrier being one such device). The reason, as explained by the literature and the experts before me, is this. Where the impact angle is shallow, a continuous, smooth and vertical barrier will assist the vehicle to “slide” or “glance” along the barrier: thereby minimising, hopefully, the consequences. Professor Troutbeck accepted that if a vehicle slid along a barrier then the consequences ordinarily would be likely to be minor. However, where the impact angle is high - for example, at the extreme, a head on collision - the arrestor device is designed to absorb energy and to cause the vehicle to decelerate.

[146]It was common ground that a track inspector would concentrate first on high risk areas at a circuit. He would then concentrate on low risk areas. In concentrating on low risk areas (in the sense of there being only a small possibility of collision or accident at that part) the inspector would also need to concentrate on the likely consequences if such low risk eventuated: some low risk areas might, if the low risk of an accident eventuated, be high risk in terms of consequence. A good example of that, much discussed in the contemporaneous minutes and reports, was the “nose” on the inside of the Lavant bend. Another example at the Goodwood circuit, given by Mr Symes, was a particular metal aerial to one side of a section of the track. The risk of a car striking that aerial was assessed as extremely small; but if it happened the consequences could be horrific: hence he recommended car tyre buffer surrounds for that aerial.

[147]The evidence before me established, as I find, that the portion of the circuit as one comes out of the second part of the Lavant bend was properly assessed as a very low risk. The Lavant bend was a bend to be treated “with respect”, as one witness told me. But the principal area of difficulty was the first part of the bend, approaching it from St Mary’s, where it bends to the right at an angle of almost 90°. The second part of the apex is less tricky, and cars can be expected to accelerate into it at speeds up to or in excess of 70mph. A more likely consequence would be that a car in difficulty would run off the left (outside) of the track there –hence the provision of a gravel trap on the left side by the first apex and car tyre barriers in appropriate places there. The prospect of cars coming off the track on the inside, coming through the second apex, and striking the tyre wall in the region of the place where Mr Wattleworth did was, I am satisfied, reasonably assessed as very low risk. This is also borne out by the relatively few incidents – let alone serious incidents – that have occurred there over the years. Nevertheless there was, as I find, a foreseeable – and foreseen- risk at that part (borne out by the serious incident involving Mr Begg, as well as Mr Wattleworth); and reasonable and appropriate steps had to be taken to meet that risk. Both Mr Symes and Mr Peart appreciated that at the time.

[148]Although some criticism was made of Mr Symes and Mr Peart that they gave insufficient consideration as to the risk at this particular section of the circuit and as to the protective barriers to be installed there I am entirely satisfied, accepting their evidence, that they both gave thorough consideration to the matter. The question therefore is whether what Mr Symes approved (and Mr Peart endorsed) was appropriate, given the range of prospective drivers, cars and uses, and whether Mr Symes (and Mr Peart) acted reasonably and with due care in approving the structure in fact installed. Putting it another way, and adopting the words of Beldam LJ in another case (Smith v Flintrace Ltd (CA unrep: 27th March 1998) where, at a stock car race, the issue was whether a barrier had been negligently designed and installed: was the barrier unsafe in that it exposed a driver to an unnecessary risk of injury?

[149]Both Dr Ashton and Professor Troutbeck agreed that if the risk of colliding with a barrier at this part occurred it would be likely to be at a low angle (ie less than 30°). They also agreed that the higher the impact angle the more severe the impact will probably be for any type of barrier for the same impact speed; and that impacts with energy absorbing barriers are generally less severe than impacts with very rigid barriers at all but the smallest impact angles.

[150]That being the assessment (and it was also the assessment of Mr Symes and Mr Peart in 1998) the various guidelines would indicate for this section a smooth, continuous and vertical surface. It was the view of Mr Symes and Mr Peart at the time that that was appropriately provided by the earth filled lorry tyres, laid house brick fashion, facing the vertical earth bank. (It was common ground, I add, that lorry tyres, laid house brick fashion, had the advantage of presenting significantly less irregularity than car tyres stacked vertically. In the course of his evidence Dr Ashton himself accepted that they presented in plane a smooth surface). Professor Troutbeck stated that such a lorry tyre wall would be so regarded as a smooth, continuous and vertical surface (which was also Mr Symes’ and Mr Peart’s view). I accept that evidence; which also accords with the fact that, as a number of witnesses told me, earth filled lorry tyre faced banks of the kind constructed at Goodwood were, both in 1998 and now, very commonly found as first lines of protection at many other circuits, in comparable situations, both in the UK and elsewhere (although I appreciate that the fact that something may be a common practice does not of itself necessarily rebut negligence).

[151]Criticism was made of the fact that the lorry tyres were not more firmly secured by bolts and that they were not so filled with compacted earth as to make them non-compressible and to reduce the energy absorbing properties and so to maintain a smooth and continuous surface on impact. But the answer to that was, to my mind, given convincingly by each of Mr Symes, Mr Peart and Professor Troutbeck. The evidence overall indicated, I find, that various velocities, whether at high angle or low angle of impact, had to be catered for. The evidence also showed that the lorry tyres were properly filled by contractors, using appropriate equipment, with earth. It was not readily possible, on practical grounds, to fill them completely (although I reject, on the evidence, any complaint that they were inadequately filled) and it was not sought to have the earth compacted. The reason was to avoid the lorry tyres presenting too rigid a structure. This was because Mr Symes and Mr Peart assessed that, although the probable angle of impact at this section (if a collision with the tyre wall occurred at all) would be a low angle, nevertheless they had to take account of the possibility that the impact (as, as it happened, occurred in the case of Mr Begg) might be at a high angle, and even head-on. If that happened, a rigid structure would be “disastrous”, as Professor Troutbeck put it. Dr Ashton agreed that that possibility had to be taken into account – indeed, that was precisely why he agreed that a concrete structure (which might have been the most effective option if the only consideration was to achieve sliding or glancing) would not have been appropriate. That explains why Mr Peart and Mr Symes approved an earth filled lorry tyre wall facing the bank, appropriately bonded together and with grass further helping the bonding, and with a geotextile membrane helping prevent earth seepage. It presented a sufficiently smooth, continuous and vertical surface designed to cater for a low angle impact; but at the same time it had some properties of energy absorption, appropriate in the case of the, unlikely but foreseeable, event of a high-angle impact. It was, as Mr Peart put it, a “good compromise”. In my view, the evidence establishes that Mr Symes (and Mr Peart) acted reasonably in this regard.

[152]Dr Ashton nevertheless criticised the structure selected as one which would, for vehicles colliding at a low angle impact, increase the risk of a vehicle “pocketing” by reason of the possibility of the tyres compressing on impact. I accept that that risk was increased as compared to the use of Armco (itself not entirely a rigid structure). However I also accept Professor Troutbeck’s evidence to the effect that it was not very significantly increased – after all, the lorry tyres were each large and weighty, filled with earth and laid house brick fashion in rows of five in height set into the earth bank. I further accept his evidence that there is some risk of pocketing with all non-rigid barriers, including Armco, under certain conditions. But it seems to me that that possible disadvantage for vehicles striking at a low angle (the more probable angle of impact) was more than counterbalanced (and at least could reasonably be so assessed) by the perceived advantages for vehicles striking at a higher angle of impact (the less probable angle of impact, but one which had to be taken into account and which, if it happened, could potentially lead to a greater risk of injury and so called for energy absorption). In my view, given the circumstances as presented to Mr Symes, and Mr Peart, there was no unwarranted departure from the FIA or other guidelines (and after all they in any event are only guidelines). I accept Professor Troutbeck’s evidence that a first line of protection may properly have energy absorbing properties. I attach great weight to Professor Troutbeck’s view, which accorded with that of Mr Symes and Mr Peart at the time, that any more rigid a structure than was installed here might unacceptably have had severe consequences for drivers striking at a higher angle, and possibly even for those striking at an angle approaching 30°. That was a reasonable and proper view for Mr Symes and Mr Peart to hold.

[153]It is a curious feature of Dr Ashton’s evidence that his ultimate preferred option (the car tyre barrier fronting the lorry tyre faced earth bank) – which does not seem obviously to feature in the amended Particulars of Claim - is not a conventional first line of protection and cannot of itself, even with conveyor belting, be counted as a “smooth and continuous barrier” for the purposes of the guidelines. The evidence further showed that car tyres are relatively readily compressible compared to earth filled lorry tyres: indeed, intended to be. They are designed to be energy absorbing barriers of the kind recommended for probable high angle impacts. Dr Ashton himself agreed that by reason of the vertical stacking such car tyres are not, on his own terms, readily to be designated as a smooth and continuous barrier: and moreover there is further distortion when, predictably, they compress on impact. Certainly a car tyre barrier is not a rigid or non-compressible barrier, which on the pleaded case (and in some aspects of Dr Ashton’s evidence: in, for example, recommending compacted earth filled lorry tyres) was advanced as appropriate.

[154]I did not, with respect to Dr Ashton, find his explanation for all this at all convincing. Ultimately what it really came to was this. A (car) tyre barrier would provide the compressible energy absorbing properties desirable for a high angle impact. Dr Ashton conceded that the greater energy absorption characteristics of car tyres would not here have helped Mr Wattleworth with regard to pocketing. But – and this was crucial to his view - the provision of a conveyor belt, bolted to the tyres, would, he said, provide the necessary “sliding” or “glancing” properties appropriate for a low angle impact. Thus Dr Ashton by these means was seeking to do what Mr Symes and Mr Peart had themselves been seeking to do: viz, provide for both contingencies. But his preferred solution was different to the one they preferred in 1998 (albeit the same as the one they subsequently approved at the end of 1999).

[155]I was left wholly unpersuaded by these asserted benefits of the provision of conveyor belting. No experiments, tests or academic literature were drawn to my attention to support the proposition that conveyor belting fixed to tyres in this way would assist in this way. (Dr Ashton was, in fact, vague as to what thickness of conveyor belting was required). It was also common ground that such conveyor belting inherently has flexibility and in addition there was inevitably some “slackness” occasioned in fitting conveyor belting to tyres. Photographs (and as my own view of the circuit confirmed) show a decidedly “wavy” or kinked appearance of the conveyor belting where attached to car tyres, in areas where the belt follows the voids between the vertical stacks of the tyres: indeed there is a degree of “waviness” evident in those sections of the circuit where conveyor belting is affixed directly to lorry tyres.

[156]Professor Troutbeck was dismissive of Dr Ashton’s views as to the conveyor belting, which he stressed had no experimental or scientific support. He said that conveyor belting, whether fixed direct to a lorry tyre wall or to a car tyre barrier fronting lorry tyres, would not assist in helping cars to slide. On the contrary, his view was that in either case the belting would on impact follow the shape of the tyres – a proposition with which I did not understand Dr Ashton really to disagree - to the extent that they compressed and so, he said, would neither facilitate sliding nor reduce the risk of pocketing. I accept that. He also observed that it has not, to his knowledge, been regarded in this field that conveyor belting would assist in the way suggested by Dr Ashton. None of the witnesses, including Dr Ashton himself, moreover, could point to any case of any other circuit affixing conveyor belting direct to a lorry tyre wall as a first line of protection to assist sliding properties. Neither Mr Symes nor Mr Peart could recall any instance where the MSA or the FIA had required it. That Goodwood (exceptionally for a motor racing circuit) now does have conveyor belting affixed to the various lorry tyre faced earth banks at sections round the track is entirely due, as I find, to compliance with Lord March’s subsequent requests based on aesthetic considerations.

[157]That is not to say that conveyor belting does not, in appropriate situations, have valuable properties. It is clear, and as the recommendations in the FIA guidelines show, that it does. But those benefits, in preserving the “integrity and effectiveness” of a tyre barrier, are, as the evidence showed, the identified benefits conferred in the case of high angle collision, in spreading, via the flexible belting, the impact to adjoining car tyres and so facilitating energy absorption, in what is designed to be a compressible structure.

[158]I have not overlooked the fact that in some of their letters and reports at the time Mr Symes and Mr Peart did, on occasion, allude to the provision of conveyor belting (in relation to barriers at other parts of the circuit) as potentially assisting in facilitating sliding: see for example, Mr Peart’s inspection report made after his inspection of 2nd July 1998 and Mr Symes’ letter of 7th October 1998. Mr Glancy also drew attention to Mr Symes’ oral evidence to the effect that, although he could not really say, possibly it might so assist. Given, said Mr Glancy, that there were no cost or other considerations militating against the provision of conveyor belting and given that it had no disadvantages and potentially some advantages it would, he submitted, have been reasonable to instruct that conveyor belting be provided at this spot. (It might however be noted that, as Mr Carter pointed out, one disadvantage of the installation of a conveyor belt fronted car tyre barrier was the reduction of verge space – space itself being a valuable safety commodity). But the possible asserted sliding benefits of conveyor belting have not been proved: and as Mr Peart told me, and I accept, the possible advantage of conveyor belting in reducing sliding as suggested in 1998 (when conveyor belting had in motor racing circles not long been in use, generally) has never since been established and is no longer a view even tentatively held by the FIA. Mr Symes likewise, taking his evidence overall, was of the view, and remains of the view, that the provision of conveyor belting would not confer any “sliding” benefits of any significance. I accept this evidence, and conclude that this was a reasonable view to hold.

[159]For similar reasons, I do not accept Dr Ashton’s view that had conveyor belting been provided, whether bolted direct to the lorry tyres or (his preferred option) bolted direct to a car tyre barrier, the pocketing would not have occurred in the case of Mr Wattleworth. Indeed I find that evidence somewhat puzzling, given that it was agreed that the car tyres would compress more than the earth filled lorry tyres: and, as I have found, accepting Professor Troutbeck’s evidence, the belting would, on impact, have followed the shape of the tyres. What, fundamentally, gave rise to the pocketing in the case of Mr Wattleworth was the fact that the yawing approach of his car and angle of his impact caused the car to rotate clockwise and so engage with the tyre wall. I prefer Professor Troutbeck’s view (shared also by Mr Symes and Mr Peart) that in such a situation the provision of conveyor belting would not have prevented snagging and would have made no difference to the outcome.

[160]Professor Troutbeck’s view, in fact, as I have said, was that the structure in place in 1998 was preferable to that installed in the spring of 2000 (and as remains currently in place) at this spot. This, to my mind, really confirms that it is a question of judgment as to how best to deal with a situation where both low angle and high angle impacts have to be addressed. As I have said, Professor Troutbeck has massive experience in this field and his evidence, overall, impressed me. I consider that his views were cogent, reasonable and rational. The solution preferred in 1998, while providing some energy absorbing properties designed to help accommodate high angle impacts, put more emphasis on providing a continuous, smooth and vertical first line of protection to help accommodate low angle impacts (as well, of course – and importantly – as providing protection to spectators). The present solution puts greater emphasis on providing energy absorbing properties to accommodate a high angle impact. These are matters of judgment; and in my view it is not proved that the structure selected in 1998 involved an unreasonable judgment or that the structure was selected or approved without the exercise of proper skill or care. In my view, on the evidence, the choice was a reasonable one, made for good cause, and was one which an inspector skilled in motor racing circuit safety matters could reasonably and properly make and approve.

[161]Mr Glancy drew attention to the degree of dislocation of the tyres occasioned by Mr Wattleworth’s collision (and, indeed, Mr Begg’s collision). But that does not prove that the tyre wall was inappropriate. It certainly did its job in the case of Mr Begg. Professor Troutbeck did not attach significance to the dislocation, nor did Mr Peart or Mr Symes. It is true that Mr Carter (who had frequently seen such lorry tyre faced earth banks at many circuits) expressed surprise at the degree of dislocation to the tyre wall resulting from Mr Wattleworth’s accident. But, as Mr Eklund noted, the very fact of his surprise tends to confirm Mr Carter’s belief (borne of experience) that lorry tyre faced earth banks should be an appropriate structure. That was indeed Mr Carter’s own view for this section of the circuit here. Other witnesses, such as Mr Caffyn, Mr Goble and Mr Brian, had on occasion, as it happened, witnessed comparable disruption to lorry tyre faced earth banks at other circuits. Mr Glancy further submitted that it must be the case that conveyor belting would have prevented a dislocation of tyres occuring. That was not the view of Mr Symes and Professor Troutbeck and I am by no means satisfied that is necessarily so; although it may be that the dislocation may have taken a somewhat different form. In any event, I accept Professor Troutbecks’s evidence to the effect that the dislocation is more probably to be seen in terms of being the consequence of the impact, not the cause of any damage or injury to Mr Wattleworth or his car.

[162]As to the letters of Mr Gethin and Mr Mullen, in my judgment they do not really advance matters. They were written at an early stage of the reconstruction of the circuit, in a different context, and before the final installations at the Lavant bend; they were not directed at this section of the barriers at the Lavant bend; and in any event there is nothing to show that Mr Gethin and Mr Mullen, who did not give evidence before me, retained concerns when the works were finished. In fact, Mr Gethin’s driving school continued to use the circuit on countless occasions and Mr Caffyn, one of Mr Gethin’s own instructors, told me that he (Mr Caffyn) had no concerns about the tyre wall at this spot, which corresponded to what he had seen on many other circuits.

[163]I conclude, on the evidence, that the MSA, through Mr Symes, discharged the duty of care which it owed. In my view, and whether or not one puts it in precise Bolam terms, reasonable skill and care was exercised by Mr Symes (as it was by Mr Peart also). The choice and approval of the tyre wall installed as part of the Lavant bend was reasonably made and after proper consideration. The barrier approved – earth filled lorry tyres laid house brick fashion, fronting the earth bank – did not inappropriately depart from the relevant guidelines; and the tyre wall so approved was not unsafe in that it did not expose drivers to unnecessary or unjustifiable risk. On the contrary it was a reasonable choice, designed to meet the various foreseeable types of collision that might occur at that section and appropriate for the foreseen wide range of cars, drivers and uses.

[164]It further follows that I would in any event also find, on the evidence, that Goodwood thus took such care as in the circumstances of the case was reasonable to see that Mr Wattleworth would be reasonably safe in using the circuit on the track day on 5th November 1998; and further, that if (contrary to my view) the FIA did owe a duty of care to Mr Wattleworth the FIA discharged such duty of care.

Causation

[165]In the light of those conclusions, the other issues fall away. However, in view of the detailed evidence adduced before me and in deference to the full submissions made by all counsel to me, I propose to express my findings as to those issues also: albeit in the circumstances I will do so relatively shortly.

[166]Since it was a fundamental part of the Claimant’s case at trial that the provision of conveyor belting would have promoted sliding and so prevented the pocketing that occurred in the case of Mr Wattleworth (which I have in the event rejected), it was also necessarily a part of her case that the fatal injuries occurred not at the first or second impact stage but at or after the third impact stage. It was the view of Dr Ashton presented in his second report, although not his first report, and in his oral evidence that the fatal injuries probably occurred at the third impact. It was not a view shared by Dr Searle.

[167]In his first report Dr Ashton suggested that the fatal injury may have been caused after the car had rebounded from the tyre wall (at the time the gouge on the verge was caused). Subsequently, and after seeing Dr Searle’s report, he reconsidered this. In his second report, he proposed that a tyre from the tyre wall had at the third impact struck Mr Wattleworth’s helmet on the front at the right side (where the photograph shows marks present): The head then in consequence rebounded, striking the roll-bar (as evidenced by the marks to the helmet to the lower left side). Some of Dr Ashton’s propositions, in medical causation terms, did not altogether accord with the written reports of Mr Gleave or Mr Maurice-Williams and do not accord with the findings which I have expressed: in that the basal skull fracture (the primary injury leading to the fatal brain injury) was caused by the impact evidenced by the blow to the left lower side of the helmet. The issue nevertheless remains as to precisely when that impact, occurring when the helmet struck the diagonal strut of the roll-bar, occurred. Dr Ashton’s evidence was, taken overall, that it was at the third impact.

[168]For his part, Dr Searle was, in his reports and oral evidence, of the view that the skull injury was caused at the first impact, when Mr Wattleworth’s head and upper body was moved back and to the right and then across, first striking the roll-bar as the seat was forced back behind the line of the roll-bar and then striking the diagonal strut of the roll-bar.

[169]From a lay point of view it seems rather difficult to understand how firm opinions can be expressed where the relevant events lasted about one tenth of a second. However, I appreciate that the laws of physics do not necessarily yield to purely temporal considerations. Nevertheless there are, as both Dr Ashton and Dr Searle acknowledged, a number of variables here and the precise situation can not be reconstructed with certainty. Moreover each was hampered by not having had sight of the helmet (instructions having been given for it to be destroyed shortly after the crash, when its possible importance was not appreciated). Although the competing opinions of Dr Ashton and Dr Searle were each criticised as “not possible”, I am quite satisfied that each is possible. The question is: is it proved that Dr Ashton’s explanation is the probable one?

[170]Dr Ashton’s view has considerable prima facie force if only because of the degree of dislocation of the tyres at the third impact. Further, as the photographs show, the damage to the front offside of the car was significantly more extensive than to the rear offside of the car, connoting a more violent impact and more significant deceleration: which indeed would be entirely consistent with the pocketing of the front of the car into the tyre wall. It is also noteworthy that Mr Maurice-Williams, who agreed with Mr Gleave that there was here a “massive” skull injury, thought that there had been a “tremendous” impact; and his view, albeit expressed from a medical, not expert accident reconstruction, viewpoint, was that the severe head injury identified was “possible” from a collision at a 27° angle but “unlikely”; it would have been another matter for a near head-on collision.

[171]There are however, certain difficulties in the way of Dr Ashton’s final opinion. These include the following:171.1 His explanation called for an impact by a lorry tyre with the helmet towards the vertex on the right side of the helmet in the site of marks shown on the photograph of the helmet. But his calculations as to the height of the tyre wall necessarily had to be approximate (see in particular Figure 12.2 in this first report); in addition his measurement of the car was by a scaling off process and he had also had to make suppositions, albeit informed ones, as to Mr Wattleworth’s posture and movements.

171.2 His theory involved Mr Wattleworth’s helmeted head moving at least some 8 inches and, more probably, perhaps some 12 inches forward to the right (with some dipping) and beyond the line of the A frame of the car. (Dr Ashton did not suggest that a lorry tyre had somehow inserted itself within the line of the A-frame). As Dr Searle pointed out, that was not something to be expected in the case of a driver firmly strapped, as I find Mr Wattleworth was, by a harness type seat belt of this type: the shorter (and therefore less flexible) of the straps, moreover, being on the left shoulder.

171.3 The pocketing occurred as the offside front of the car was rotating clockwise into the tyre wall. The corollary of this was that the rest of the offside of the car was at the point of the third impact rotating clockwise away from the tyre wall.

171.4 The actual dislocation of the tyre wall is probably to be seen (as Professor Troutbeck had observed) in terms of consequence of the third impact rather than in terms of cause of injury.

171.5 No damage to the chrome strip on the driver’s door or to the steering wheel, or other such damage, was noted which might support the theory that Mr Wattleworth’s head and torso had moved in this way.

171.6 The marks on the right side of the helmet (so far as revealed on the photograph of the helmet and the notated drawing of the helmet which had been made by Mrs Wattleworth’s brother) were inconclusive as to whether they were caused by the impact of a lorry tyre.

171.7 A deceleration table prepared by Dr Ashton (Table 12.10 in his first report) does not show any very pronounced deceleration between point of first impact and point of third impact.

171.8 There was no clear evidence of tyre impact on the offside door or frame.

[172]That is not to say that Dr Searle’s views were not also without certain difficulties. I do not think the existence of the black scuff mark on the top of the helmet, observed by Mr Brian, tells in any real way against his view (contrary to the suggestion of Mr Glancy). But, given that Mr Wattleworth was a man six foot three inches tall, Mr Searle’s view involves (as I think he accepted) an amount of slumping in the seat on the part of Mr Wattleworth at the time of the first impact. Moreover no damage on the right inside of the car was noted. Dr Searle’s theory also itself involved some lateral movement of the head if not upper body also when Mr Wattleworth was wearing a seat belt – albeit Dr Searle did observe that a seat-belt would not restrict purely lateral movement of the head. As against that, the driver’s seat was undoubtedly pushed back beyond the line of the roll-bar, and the evidence overall did indicate to me that there were rearward and rightward forces operating at that stage of the first impact; and Mr Wattleworth may well, as Dr Searle proposed, have been pushed back and under the roll bar at the time of the first impact, striking the top of the helmet on the roll bar as he did so; and then in consequence may have rebounded from the interior of the car so as then to strike the diagonal strut of the roll bar, giving rise to the fatal impact evidenced by the dent on the lower left side of the helmet.

[173]I have not found this issue easy but on the whole I think that Doctor Searle’s view is slightly the more probable one. At all events, I am not satisfied that it is proved, on the balance of probabilities, that the fatal injury occurred at or after the third impact. Thus this claim would in any event fail on causation on that ground also.

Other matters

[174]A defence of volenti was raised. I would have rejected it. Of course Mr Wattleworth must be taken to have consented to the risks inherently involved in motor car racing, and I am sure that he did so. But that would have been on the basis that due steps would have been taken to see that the circuit (including the crash barriers) was reasonably safe and that those responsible for circuit safety – whoever they may be – would have taken reasonable care to provide appropriate barriers.

[175]As to the plea of contributory negligence, various pleaded points are made. The two real points ultimately pursued were:175.1 that Mr Wattleworth approached the second apex of the Lavant bend at excessive speed and without due care; and

175.2 that Mr Wattleworth unreasonably failed to attempt to brake once his nearside wheels had gone into the grass and he started to go across the circuit.

[176]I conclude on the evidence that Mr Wattleworth did not drive with excessive speed when approaching this part of the Lavant bend. I bear in mind Mr Humphrey’s evidence relating to the previous lap: but Mr Penfold had actually observed Mr Wattleworth’s car approaching the Lavant bend on this occasion (as on previous laps) and had not thought that he was approaching either the first part or the second part of the bend at an inappropriate speed. This is borne out by the experts’ view that he was at the relevant time driving at around 70mph (less than full racing speed and not considered excessive for this section); and, further, that had he been driving at an excessive speed he would more likely have gone out on the left side of the track.

[177]What went wrong here was that, unfortunately, Mr Wattleworth took the wrong line. Mr Penfold speculated that this was due to a lack of concentration. But, as Mr Penfold accepted, the margin of error was very small and the mistake was a matter of a few feet. In my view, considering the evidence, the mistake here, in taking the wrong line, was a mistake of judgment. It is not to be categorised as negligent.

[178]The position is rather different thereafter. Mr Penfold (as I have said, a most experienced driver) was surprised to observe that Mr Wattleworth seemed to maintain his foot on the throttle and did not seem to attempt to brake. Dr Searle also expressed surprise at this: as he observed, the distance travelled by the car, estimated at as much as some 111 metres before impact, gave ample time for braking with a view to avoiding, or at least minimising, any collision. It is true that braking increased the prospect of a spin and may thus also have caused the lap to be aborted; and Mr Wattleworth may perhaps have thought that he could steer his way out of the problem. But, as against that, Mr Wattleworth was engaged in a track day (of which he had had quite considerable previous experience) when competitive racing or timed laps were not involved; and he does not seem to have applied his brakes, at all events in any significant way, before the collision: the impact speed being around 60mph. On the whole in this respect I think some degree of contributory negligence is shown. I have to bear in mind considerations of blameworthiness and causation. Overall, had I concluded that there had been negligence on the part of one or more of the Defendants with regard to the design of the tyre wall, I would have assessed contributory negligence on the part of Mr Wattleworth at 20%.

Conclusion

[179]My principal conclusions, having regard to all the evidence, are therefore as follows:179.1 Goodwood was not in breach of the duty of care which it owed Mr Wattleworth.

179.2 The MSA owed a duty of care to Mr Wattleworth but was not in breach of that duty of care.

179.3 The FIA did not owe a duty of care to Mr Wattleworth; but, even if it did, it was not in breach of that duty of care.

179.4 Causation in any event was not proved by the Claimant.

[180]I am aware that, in what is already, I am afraid, an over long judgment, I have not specifically dealt with every nuance of the pleadings, every argument raised or legal authority cited, or every evidential issue. But I have sought to bear them all in mind and I have given expression to the reasoning and conclusions which I consider necessary to dispose of this case.

[181]I was greatly assisted by the helpful and detailed submissions of all counsel. I would wish to pay particular tribute to Mr Glancy and Mr Killalea (and those instructing them) for their careful, thorough and tenacious presentation of the Claimant’s case against the combined opposition of three well resourced Defendants. In the result, however, this claim is dismissed as against all three Defendants.