Green v Sunset & Vine Productions Ltd & Ors (Rev 1) [2009] EWHC 1610 (QB)

[2009] EWHC 1610 (QB)

Case No TLQ/07/1145

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 13 July 2009

Before

MR JUSTICE OUSELEY

Between

MALCOLM WILLIAM GREENClaimant

(1) SUNSET & VINE PRODUCTIONS LTDDefendants

(2) BRITISH AUTOMOBILE RACING CLUB LTDDefendant

(3) GOODWOOD ROAD RACING COMPANY LTDDefendant

GOODWOOD ROAD RACING COMPANY LTDPart 20 Defendant

Mr O Ticciati (instructed by Wilmot & Co Solicitors) for Claimant

Mr B Gardiner (instructed by Hextalls Solicitors) for Sunset & Vine

Mr A Barker QC and Mr M Duthie (instructed by Paris & Co Solicitors) for Goodwood/BARC

Hearing Hearing dates: 3 rd– 23rd February 2009

JUDGMENT

Introduction

[1]Willie Green is a well known and very experienced driver of historic racing cars. He drove a 1948 Maserati 4 CLT, 1492cc, belonging to Ian Wade, in the Goodwood Trophy race at the Goodwood Revival meeting on 17 September 2005, a Saturday. As he entered Woodcote Corner on probably his third lap, Willie Green chose a line to be in a better position to overtake the car in front as the Corner ended. Woodcote Corner is a double apex right hand bend. At the second apex, he drove the right hand side wheels of the car across the kerb stones on to the grass on the inside of the bend, at about 85 mph. But when the Maserati crossed back on to the track, it did not continue round the bend. Instead, it drove across the track, still pointing in the direction of travel, to the outside of the unfolding bend. It then clipped the gravel trap on the outside of the bend, continued along the grass verge on the left hand side of the short straight, and hit the tyre wall at the back edge of the verge, as the wall curved back towards the track at the entry to the chicane. The car spun around. Willie Green was flung out on to the track, where the car then ran over his legs, just before it came to a stop. He suffered quite severe leg injuries. He has made a remarkable recovery for a man aged 62 at the time, and is driving ordinary and classic cars again. The Maserati was seriously damaged, but has been repaired. What caused the car to cross the track and hit the wall is at the heart of this case.

[2]Goodwood Road Racing Company Ltd, Goodwood for short, is one of the group of companies which undertakes the various activities at the Goodwood Estate near Chichester. It owns and operates the motor racing circuit. The circuit was used from 1948 to 1966, and remains one of the most historic and famous circuits in the world. It was revived in 1998 for use by historic racing vehicles in the three day Goodwood Revival meeting, which recreates the atmosphere and style of Goodwood’s earlier racing days.

[3]Goodwood is the promoter of the Revival meeting, but the races must be organised by an automobile club. It has chosen as its organiser the British Automobile Racing Club, BARC, with which it has had a long-standing relationship. The Earl of March, whose family controls the Goodwood companies and for some generations has had an interest in motor racing, is the President and titular head of BARC. BARC had been running all motor racing at Goodwood since 1948. The Clerk of the Course, Observers and Marshals, come under the aegis of BARC which is responsible for directing the actual racing. Once the Revival meeting begins, broadly speaking, responsibility for the track, its immediate environs and indeed the area within the spectator barrier, passes from Goodwood to BARC.

[4]BARC is affiliated to the Royal Automobile Club Motor Sports Association, MSA. The circuit was licensed by the MSA, as a permanent racing venue; alterations require MSA approval. The Revival meeting also requires an Event Permit issued by the MSA. The MSA is the UK body on to which the Federation Internationale de l’Automobile, FIA, has devolved its various functions. The MSA provides the Steward of the Course for the races, to ensure compliance with the MSA Regulations published in the Competitors’ Yearbook, known as the “Blue Book”. Although Goodwood, BARC have a strong interest in the safety of the events, it is to the MSA that both must ultimately defer on safety issues. The MSA also trains and licenses officials and marshals, and licenses competitors.

[5]Sunset & Vine Productions Ltd had a contract with Goodwood to produce outside broadcasts for the Revival meeting, showing what was happening during racing on the large outdoor screens around the course. It was also to produce a highlights programme to be broadcast on ITV. Among the cameras it used for these purposes was what is variously known as a kerb cam, a road cam, a puddle cam or even a “whoosh” cam. I shall call it a kerb cam. It takes very wide angle but close up road level shots of passing cars and their wheels. One was placed on the grass just on the inside of the second apex of Woodcote Corner.

[6]Mr Green says that the Maserati’s right hand side wheels hit this camera and it was that impact which caused the car to veer off left, after which there was nothing he could do to stop the crash. He had been racing in a perfectly proper manner. Sunset & Vine was negligent in placing it there or placing it there in an insecure manner.

[7]Sunset & Vine contends that such contact as there was between the Maserati and the kerb cam did not cause the accident. It supports the case for Goodwood and BARC that this was caused by Willie Green driving too fast around the corner, losing control as his off or right hand side wheels used the verge and crossed over the kerb, back on to the track. His own negligence, alternatively, contributed to the accident. The camera was approved by type and location by Goodwood, and by BARC or MSA or both; its positioning involved no negligence by it or by others. But, to the extent that it is liable to Mr Green, it seeks a contribution from Goodwood and BARC, because they too were negligent. It also seeks an indemnity from Goodwood under the terms of its contract with Goodwood.

[8]Sunset & Vine joined Goodwood in Part 20 proceedings. This led Mr Green as claimant to join them as defendants on the basis that each defendant knew or ought to have known of the placing of the kerb cam at Woodcote Corner, knew that it was likely to be overrun there and that that was a dangerous position or manner in which to place a kerb cam.

[9]BARC and Goodwood agree with Sunset & Vine that contact between the Maserati and the kerb cam did not cause the accident. That was caused by the way Willie Green was driving, or at least he contributed to the accident by his own negligence. And they agree with Sunset & Vine that the kerb cam was not dangerous there, and created no undue hazard. But if that is wrong, they contend that Sunset & Vine placed the kerb camera where and in the manner it did, without the required approval of Goodwood, BARC and the MSA; and did so negligently causing the accident. Goodwood also seeks an indemnity from Sunset & Vine under the terms of its contract. The terms of the contract are at issue between Sunset & Vine and Goodwood.

[10]I am only concerned with liability.

The Revival meeting

[11]The Earl of March, a motor racing enthusiast from his early days, as was his grandfather the 9th Duke of Richmond, decided in the early 1990s to revive the great days and style of Goodwood’s famous post war racing circuit, by upgrading the circuit to be an event centre for historic cars. The circuit was licensed by the MSA; FIA safety criteria also have to be met for international events. Lord March described the objective of the Revival meeting as being to recreate the bygone days of motor racing, with the appearance and character of motor racing before 1966 when the circuit had closed. The cars and drivers are invited to compete. Drivers and mechanics have to wear period costume; the public are encouraged to do the same, as are the traders, advertisers and officials. The cars all predate 1966. The Goodwood Trophy was for cars built between 1948 and 1954 of Formula 2 GP or Formula Libre standard.

[12]Lord March, as host, briefs all drivers before the meeting, and did so on the Thursday of the 2005 meeting. He reminded them of the history of the Revival meeting, and of what was expected of them as participants. They were there to enjoy the racing and to entertain, to compete but not at all costs. The events were not championship races; there was no prize money. They should not strive to their utmost, or drive at 10 or 11/10ths but rather at no more than 95 percent; they should back off rather than drive at the limit. This was to emphasise and protect the style and nature of the event: the future of the meeting was in their hands. I accept that that is the message that his briefing was intended to and did convey to all the drivers, including Mr Green. One of Lord March’s concerns, I am sure, was that the owners of valuable historic racing cars would not permit their cars to be raced at Goodwood if they were liable to be returned “in a bag of bits”. He was concerned to avoid accidents.

The Circuit and Woodcote Corner

[13]The Goodwood circuit is 2.4 miles long, and is raced clockwise. Woodcote Corner comes at the end of the long fast Lavant straight, on which cars can reach up to 150 mph. The double apex right hand corner takes the cars through 100 plus degrees, and on into the chicane not far away.

[14]The track itself is 11m wide and slightly wider on the actual apices. Cars which are taking Woodcote Corner too fast and are unable to get round tend to head for the outside of the bend, where a gravel trap on the outside of the Corner slows them down. This trap extends for about 40m beyond the end of the second apex, and then a grassed area of the same width continues for about 60m, until the strip narrows shortly before the track enters the chicane. At the back of the gravel trap and grass area is a tyre wall which runs straight along the back of the gravel trap and the grass verge, before curving towards the track again to run parallel to the track as it enters the chicane. The tyres are set behind conveyor belting track side, so as to present a smooth surface. The buildings, stands and spectator areas are set back behind the tyre wall.

[15]There was a Flag Marshals’ post, Post 12 , on the outside of the track just beyond the gentler first apex of Woodcote Corner, and Post 12, without flags, was on the outside of the track at the second apex, just beyond the “Super Shell” building. This was the Marshals’ post closest to where the kerb cam was placed. Flag Post 13 was nearest to where Mr Green came out of the car, just where the tyre wall straightened again after curving towards the track at the entry to the chicane.

[16]The inside of the kerb at the second apex was edged with lowblack and white paving stones sloping gently upward, at about 30 degrees, to the rounded top, about 100mm above track height. The face was straight rather than concave and gave the impression of being a little worn and pitted at the top. The back of the stones was not quite vertical, and was roughened and pitted in places; photographs 3/463-4. No precise measurements are possible as it has all been replaced, but that is the best view I can form.

[17]There was a drop of up to 50mm between the top of the stones and the grass behind them in places around the kerbing, particularly in the centre of this apex. In the vicinity of the start and finish of the kerbing, the two were nearly level; indeed the grass appears to have been a little higher at the start. The grass close to the back of the kerb stones was worn in places and a little lower than the general level of the aerodrome grass enclosed by the circuit. A plastic hexagonal mesh had been placed in the grass in 1997 just behind the kerbing to keep the grass and soil from wearing further; it would prevent rutting and would provide support for overrunning wheels or other vehicles. This mesh came in interlocking panels of about 13 inches, (33cms), square and 1 ½ inches (3.8cms) deep. Each hexagon was about 2¼ inches (5½ cms) across.

[18]Photographs of the mesh and kerbing taken by the claimant’s solicitor in January 2006 show that the mesh was part proud, part level with the surface of the soil and part under it. It was laid very close to the back edge of the kerb, extending back some 2-3 feet. The mesh strip appears from the photographs to have been only one panel wide. The precise relationship between kerb stones, grass level, and mesh varied around the kerb. This can be seen from the photographs taken by Mr Salmon, Goodwood’s Motor Sports Event Manager, two weeks after the accident, and by the claimant’s solicitor in January 2006. Mr Lloyd McNeill, Goodwood’s Motor sport Competition Secretary, said that when the mesh was removed and replaced in 2006, it was removed by a mini-digger; the gardeners could not move it as it was full of soil. There was no specific evidence that the mesh had been staked down, although there was evidence that that was a usual method of installation.

The kerb cam and its positioning

[19]The camera itself is a “lipstick” camera, which adequately describes the shape and size of the camera without the casing. This particular camera was encased in acetal, a dense hard plastic, to protect it; the sides of the casing are chamfered so that cars can ride over it. It is 38mm, about 1 ½ inches, high with a circular base 128mm, or about 5 inches, in diameter. The chamfered sides rise from about ½ inch above the base to the flat top at about 45 degrees, with the lens set back a little from the front of the base. There are holes in the base which can be used to bolt the camera to the ground. The whole resembles a large cat’s eye, but it is rigid and black. It weighs 500g or just over 1 lb. The kerb cam lens remains in one position, and the view it films cannot change unless the position of the kerb cam itself is changed.

[20]The camera cable is clamped into the structure, and is laid from the camera, with connecting cable if necessary, back to a battery point, which here was some metres back from the track. The pictures are transmitted by further cable from the battery point to the outside broadcast producer’s van, which here was about two hundred metres away. The director would decide which pictures to broadcast on to the large outdoor screens from the array of cameras monitored from the van. Those which were not chosen for broadcast would be lost unless the director decided to “grab” them as or shortly after he saw them. This could happen for example were there to be a major incident which could not be immediately broadcast, the footage of which would nonetheless obviously have to be kept for many reasons. The director is thus always, and was here, in a position to see if the kerb cam was transmitting pictures, even though they might be little used and not retained. All this is essentially agreed.

[21]There was some uncertainty as to where the camera was positioned on the grass on the inside of Woodcote Corner, and about how that may have changed over the course of the Revival meeting. No marked plan showed where it was to be sited before the meeting. For differing reasons, neither Sunset & Vine nor Goodwood, nor BARC nor the MSA had one, sought one or produced one, before or after the meeting or even for the trial - until Goodwood/BARC produced one, which was not agreed, in response to a request of mine for confirmation of certain measurements which had nothing to do with the camera location. I have ignored that plan.

[22]Mr Stephen Docherty was the self-employed film director contracted by Sunset & Vine to direct the film coverage of the Revival meeting. He emailed a photograph on 23 August 2005 to Goodwood with the location marked by an arrow, but that was to show that the camera would be right by the back of the kerb stone rather than its precise location on the bend. It would not have taken any useful pictures if it had been several feet back from the track. He said that where precisely against the kerb it would be put was to be decided when he was there at the start of the Revival meeting and able to see the shots which could be obtained.

[23]Mr Docherty first installed the camera in its place on the inside of the second apex on the Thursday evening before the meeting, to ensure that the camera position, subject to marginal changes, was what he wanted for the whole meeting. He was accompanied by Mr Kenyon, Mr Adams, Mr Bonnar and Mr Hanley. David Kenyon was subcontracted by Sunset & Vine as the Floor Manager, effectively the eyes and ears of the director on the ground.Richard Hanley was a camera assistant employed by Arena, a subcontractor to Visions to which Sunset & Vine had subcontracted part of the outside broadcast work. James Bonnar was Richard Hanley’s boss, and Mike Adams was the senior cameraman. Mr Hanley said that he and Mr Bonnar watched while Mr Docherty, Mr Kenyon and Mr Adams put the kerb cam in position about 2 ½ inches away from the back of the kerb on the grass on the inside of the second apex of Woodcote Corner on the Thursday evening, shortly after 6pm, before the meeting began on Friday 16 September 2005. No representative of Goodwood or BARC or the MSA was present at the time. BARC had concluded its track inspection before that. I accept that description. But it does not show how far around the second apex the kerb cam was.

[24]The camera and cable up to the battery connection point were taken away for security reasons that night and each night after racing. Mr Bonnar re-installed it on Friday morning, and Mr Hanley did so on the Saturday morning before racing. He was told to put it back exactly where and how he had seen it put in place on the Thursday. He went back after every race to check for damage or dirt, to check that it was in position and to make minor adjustments to its position as required by Mr Docherty over the radio. Mr Docherty did not know exactly how it had been installed after the Thursday but he could see from the pictures that it was in the position he wanted.

[25]The parties rely for a more precise location upon verbal descriptions and their interpretation of photographs and videos. Video footage shot by a spectator, Mr Sexton, and analysed by Mr Laws, Goodwood/BARC’s photographic imagery expert, shows that during the Goodwood Trophy race the kerb cam was positioned on the verge, very close to the back of the kerb, in the middle of where two tyre marks on the track near the marker post would cross the kerb, a few kerbstones back from the yellow black crossed marker post.

[26]That is where I find that it was at the start of the Goodwood Trophy race. This, apart from immaterial possible variations, is also where I conclude that it was put on the Thursday evening, on the Friday at the start of the day, and where it was repositioned after the accident but before the Goodwood Trophy restart. The fact, as I shall now come to, that on occasion the camera was moved and even torn from its cabling, as it or its cable came into contact with cars, does not alter those particular conclusions.

[27]Mr Allnutt, a BARC Marshall at Post 12, said that, on the Friday before the circuit was closed for practice, he had gone over with Mr Scott, a colleague, to see what the camera technician at Woodcote Corner, who would have been Mr Bonner, was doing and had asked him to move the camera back 8-10 feet from the kerb. He was vaguer in cross-examination than in his Witness Statement about whether he had asked for the camera to be moved back from the kerb and how often, once or twice. This statement had not been made until 11 January 2009 and was the first occasion on which he had been asked to recollect what had happened. The Marshals, he said, had given no instructions that it be installed in a different place. He thought it was once and possibly twice that the technician had come out; he could not see how far back it had been moved, though he put it at 8-10 feet, and was only estimating the distance from some 30-40 yards away, because he had not been over to see.

[28]I do not accept Mr Allnutt’s evidence that he asked the camera technician to move the camera back a few feet. His evidence about those events was too vague when tested, and far from contemporaneous. If he had had such concern, I would have expected him to follow it up at least at some point during the meeting, and to have brought failure to comply with his request to official notice. The failure of the technician to comply with the request at all, even when made, would have been obvious to Mr Allnutt.

[29]If made, the request was not acted on: Mr Docherty would have seen such a change in position from the pictures received in the van, and he saw no such change. Such a change is wholly inconsistent with the fact that the camera was hit on Friday and on Saturday. Mr Allnutt’s evidence of distance was impressionistic. He saw, in my judgment, no more than what someone had done with the camera after it had been hit and before the technician repositioned it. His evidence certainly does not bear upon the position of the camera at the start of the Goodwood Trophy.

[30]The orientation of the camera was debated because of the possible effect of its chamfered sides on a car running over the camera. Mr Docherty said that the kerb cam was angled slightly away from the kerb, at about 30 degrees, so as to pick up shots of the oncoming cars, with the camera’s very wide angle lens. He produced blown up photographs, 3/493G and H, which showed its angle just before the accident. Mr Munro, the claimant’s accident reconstruction expert, suggested that the camera in those photographs was facing towards the right of the picture, but I am satisfied that the glint of light facing the viewer is on the metal barrel holding the lens, which protrudes slightly from the sloping face of the front of the camera, just below the top. The steepness of the chamfer and the shape on the ground fit with the camera being oriented 90 degrees left of what Mr Munro thought. That also fits better with what Mr Docherty described. I accept that he would have kept much the same angle whenever the camera was replaced at the start of racing or after it had been moved by a car, so as to keep what he had found was the best angle for the footage he wanted. I accept Mr Docherty’s evidence on the orientation of the camera.

[31]Mr Docherty said, and I accept, that the wheel of a car cutting the Corner and running over the camera in this position would probably have run partly over the front, which is slightly chamfered, as well as partly over the main chamfered casing, having hit the camera to a degree obliquely.

[32]The camera in photographs 3/493 G and H appeared very close to the back of the kerb, and the lens was pointing obliquely over the kerb, so that it mostly appeared proud of the kerb from a low level angle. Although Mr Docherty described the drop at the back of the kerb of 2 inches, the camera does not appear, from those two photographs, to be within such a drop during the Goodwood Trophy, at least. Mr Kenyon recollected that the top of the camera when he left that Thursday was not above kerb height. However, the camera could not have been tucked into a drop behind the kerb, with its top below kerb height. That is contrary to the photographic evidence, and assumes that the ground away from the kerb was flat which it was not; the drop was just a shallow rut in slightly higher ground, which was itself quite uneven. The lens also had to be able to take pictures unobscured by the back of the kerb, even if it took them obliquely.

The installation of the cable

[33]I turn to how the camera was fixed and the contentious issue of how the cable was laid. The camera itself was simply placed on the ground and was not bolted or staked to it or dug in. There were operational reasons why it could not be dug into the ground there: it would not have taken any useful pictures. There was nothing to bolt it to. There was a risk, said Mr Docherty, that any stakes would fly out and become a hazard if a car ran over the camera. Mr Docherty anticipated that vehicles might run across the camera.

[34]The reason why the way in which the camera cable was laid may matter is not because it was the purpose of the cable to keep the camera fixed rigidly in position and flat on the ground; this it simply could not do. Goodwood/BARC said that the cable should have been secured so as to act as a tether, to limit how far and how high the camera could go if struck by a car. The securing of the cable could also affect whether a car running over it could cause the cable or the camera to move. Goodwood/BARC said that a car running over the cable could explain the undoubted movement of the camera on to the track after Mr Green’s car crossed back over the kerb. The movement of the camera on to the track is much relied on by the claimant as evidence that the Maserati hit the camera, and of negligence in its installation.

[35]Mr Docherty said that Visions/Arena had the task of installing the camera and were experts in installing such cameras themselves. It was not his task to carry out risk assessments for it. He was only there for its first installation on Thursday, not to supervise it, but to make sure that it was installed in the location approved by Goodwood, and in accordance with information he had received from Mr Paul McNeil of the former BBC Company which had hired out the camera for the event. He also wanted to inspect the position so as to make sure that it would give the pictures he wanted, in addition to safety considerations.

[36]He recollected the camera being placed on the grass and mesh surface on the edge of the track. The mesh was not embedded in the ground, though it was secured somehow, and there was a gap between the mesh and the ground, sufficient to allow the cable to be fed underneath from the track towards the battery point, since the cable was attached to the camera which could not go under the mesh. He inaccurately recollected the mesh as square rather than hexagonal. He remembered the cable being buried in a 3 inch trench beyond the mesh for the 15 feet or so up to the battery point. Other witnesses spoke of 15 yards to the battery.

[37]In cross-examination he said that the mesh was not easy to lift, it was an effort and it was only slightly raised rather than lifted out of position. He remembered Mr Kenyon trapping his finger. One of them held the mesh and the other pushed the cable underneath the mesh, piece by piece. Later, he said that one person could have fed the cable under the mesh. The cable was made taut and the excess was buried in the hole made for the battery. Although he had been advised by Mr Paul McNeil that the camera did not have to be secured, and putting the cabling under the mesh was primarily to prevent someone tripping over it which could disturb the camera position, this was an additional securing measure. It would also avoid the pressure of the wheels of passing cars cutting the cable against the top of the mesh, and spare cable going onto the track. He could not say whether the camera was safe if the cable were loose on the mesh.

[38]The cable run from the battery to the truck, about 200m, was what he meant in his camera plan by “the last part” of the cable which was to be dug in. He then said that he meant the part from the battery to the track as well. It was just part of a general requirement to put the cable underground. He told me that “the last part” really meant just the length nearer the camera where the Stewards might walk and not the 200m towards the truck from the battery point.

[39]Although later photographs showed cable above ground, he said that none was above ground at the time of the initial installation on the Thursday and leaving cable above ground was not what he had instructed Visions/Arena to do. The cable should have been fed under the mesh each day and into the trench which had already been dug. He did not actually know how it had been installed after Thursday. It was not his task to tell Visions how to secure the camera beyond what had been done at the first installation; that was for them and they could contact Mr Paul McNeil who knew how that should be done.

[40]Mr Kenyon was only there on the Thursday. That evening, he had dug a hole for the battery and a trench for fifteen feet of cable up to the edge of the mesh. Two to three feet of cable was then secured under the mesh, with none left lying loose on top of the grass or mesh. This left about 6 inches of cable above the mesh leading to the camera, which was next to or a few inches back from the kerb. Mr Kenyon remembered feeding the cable under the mesh, which he remembered as 1 inch square, because he had cut his finger nail trying to make space for it under the mesh. They had lifted the mesh, which was embedded in to the ground. The purpose of the cable trench was to avoid a safety hazard, for example people tripping over the cable. It was Mr Docherty and Mr Adams who decided on the position and fixing of the camera, and his impression was that they thought that it was a suitable and safe position, but he was not in a position to judge whether it was correctly placed or not.

[41]Mr Hanley had no input into where the camera was placed. In his Witness Statement, he had said that he could not remember whether the cable went under the mesh or ran along the top of it. He said orally that on the Thursday evening the battery was dug into the ground with the majority of the cable; and then the cable from the battery to the camera was in a shallow trench or furrow just under the grass. He remembered the mesh as being very small plastic squares, nailed down and not in one continuous sheet. The cable had been put in where two panels met, but what he saw on the photographs of the mesh did not look like what he remembered, nor did the kerb. The mesh was quite broken and jagged, and getting it under the mesh was a question of working it into the broken bits where two panels met.

[42]Mr Allnutt, a BARC Marshal at Post 12, said that, on the Friday when he went over to see what a technician, who would have been Mr Bonnar, was doing he had stood quite close to him and he could see the camera on the grass, just by the edge of the kerb, with a channel dug for the cable hidden by the turf. The cable was under the mesh, and then above ground to the camera. No other witness had any positive recollection of the manner of installation.

[43]Mr Salmon, Goodwood’s Motor Sports Events Manager, took photographs of the cable trenching 2 weeks after the accident. They show the trench dug from the battery point towards the kerb in a straight line; very shortly before it reached the back of the kerb it turned 90 degrees to the right to run parallel to the kerb for a few yards, just along the back edge of the mesh. None of those involved in the installation of the camera on the Thursday or later could remember a dog leg or a parallel trench.

[44]What actually happened to the camera during the course of the meeting is also relevant to the manner of its installation. The kerb cam was driven over on a number of times during the Friday practice session according to Mr Docherty’s Statement, as he could see from the live footage on the screens in the van; it was also damaged that day and replaced with an identical model. At 12.45, Post 12 radioed to race control that the kerbside camera had been torn out during the last practice and handed to the camera man at that location. Mr Allnutt’s evidence suggested that it had been pulled out twice that day, but that is not supported by the radio log.

[45]Mr Docherty said that the kerb cam was reinstalled on the Saturday, and it was unlikely that the camera moved much from its Thursday position. On the Saturday, all agree now that the Maserati hit the camera at least with its front right wheel, as it drove along the verge. Mr Bloxham’s photographs of the Maserati crossing the kerb back on to the track just before the accident show the camera in the air with the cable snaking out behind it. After the accident, when Mr Hanley returned to check the camera, he found that someone had just thrown the camera and cable on to the grass. His Witness Statement, signed on 17 July 2007, said that it was next to the track but an earlier statement of 29 September 2005 put it at about 8 metres from the track, towards the power supply, still attached to the cable. Mr Hanley said he put the camera back in position and put the cable back under the mesh in the same way. Mr Docherty had given instructions that this was what was to happen. The camera had been scuffed but was still working.

[46]Mr Bloxham’s first photographs of the restarted Goodwood Trophy race show the camera close to its original position, but it does not appear proud of the kerb stone; 3/377. His later photographs of this race show it moved back about 2 feet from the original position, further away from the track. This was probably because the camera or cable was hit by a car, in view of the unlikelihood of human intervention that close to the track during racing. No official gave evidence of any. All of these photographs show loose cable on the grass behind the camera.

[47]Mr Bloxham’s photographs show that after the restarted race was over, the camera was then repositioned back pretty much in its original position, but possibly not quite so close to the back of the kerb; 2/396-8 appear to show it on top of the kerb in a slightly different position, whereas 2/400 shows it back off the kerb. It is clear from all of these photographs that the cable is on top of where mesh would be, rather than buried underneath it. Mr Hanley agreed that photograph 2/392 taken during the Chichester Cup, the race after the Goodwood Trophy, appeared to show that the cable was not buried, but the camera was in the position in which he would have put it. The photographs show that the camera was moved during that race, but not by him. This was probably because a car hit it or the cable.

[48]The kerb cam produced footage of the Chichester Cup, in which a Lotus Ford driven by Mr Diffey, drove its right front wheel over the cable and its right rear wheel over the camera, sending it a few feet on to the track. The wheel struck the camera to its right front and side. The passage of the front wheel over the cable did not disturb the camera, according to the photographs from the kerb cam itself. It remained attached to its cable for a while but Mr Bloxham observed that the cable was severed later near the kerb, and the camera ended up on the gravel trap by the end of the race and so it must have been hit again. Mr Docherty’s Witness Statement had said that it was still working as far as he could remember, but in chief he said that it was broken, and removed late morning or early afternoon.

[49]Mr Hanley said he had to reposition the kerb cam three times that day. He only ever put it back where it was, and he thought that he went out after most races that day. He was the only person assigned to replace it between races. He could remember no dealings with the camera on the Sunday, because he thought that he was on camera relief.

[50]My findings on the evidence are as follows. I accept Mr Docherty’s, Mr Kenyon’s and Mr Hanley’s evidence that on the Thursday evening, the cable was not just left loose on top of the mesh. But the mesh was secured and not readily lifted on their evidence, and it was not an easy job to feed cable under it. The photographs of the mesh, the period of time that it had been there, and the manner of its removal all chime. It may have been possible to feed cable under the mesh with one person lifting the mesh and another feeding the cable under piece by piece but it was not a simple task of lifting a panel, feeding cable underneath, and dropping the panel back in place. The way described by Mr Hanley, in greater detail than the others, struck me as more realistic: this involved feeding cable between the panels themselves, and where bits were broken, and jagged. A dog leg was dug in the trench for the cable; the Salmon photographs prove that. I believe that that was dug because the point at which the trench from the battery point initially hit the mesh did not permit the cable to traverse the mesh panels at all, other than just by being placed loose on top, and a location had to be found where there was a gap between panels at least in part. There was no evidence that anyone had given thought to the problem of the mesh before arrival on site on Thursday.

[51]Whatever was done on the Thursday evening was also a time-consuming and difficult task for one man. Mr Docherty said that he thought one man could do it, but he has never seen one man actually do it and precisely how that person was to do it was not his direct concern. There was no evidence from Mr Bonnar, the Friday installer, but he was not helped by Mr Hanley. Mr Hanley thought that Mr Bonnar might have assisted him on the Saturday, but I do not give weight to that possibility. Each had to do it on his own.

[52]Mr Bonnar and Mr Hanley were faced with a more difficult job than the two or three faced on the Thursday. I conclude that what Mr Hanley and Mr Bonnar did or could do was less effective as a tether than had been achieved on the Thursday. That itself was less than Mr Docherty and Mr Kenyon had recollected. I am satisfied that Mr Hanley tried to put it back as he had seen it, and probably thought that he had usually done so, at least so far as mattered. Much of the concern about cable, perfectly understandably for TV crews, is to tidy it away so that people will not trip on it, and in doing so disturb the camera.

[53]Mr Docherty did not attribute any of the problems with the camera on Friday and Saturday to the cable not being put where he thought it ought to have been. As I understood his evidence, what happened on those two days was a pattern of movement which did not surprise him or cause him to wonder about the way in which the camera or cable had been positioned. Mr Docherty did not say that instructions to Mr Bonnar and Mr Hanley had focused on or referred to the purpose of the cable installation as being a create a tether to prevent the kerb cam going on to the track.

[54]The camera and cable could not have been moving just after the Maserati had hit the camera, as is shown in the Bloxham photograph 3/334, if it had been installed as Mr Docherty and Mr Kenyon described it for the Thursday. The mesh, if on top of the cable, with only a very few inches of cable above ground leading to the camera, would have acted as a much more effective tether. I have to give less weight to Mr Hanley’s evidence that he reinstalled the cable first thing on the Saturday just as had been done on the Thursday, because he is so clearly wrong about how the cable was reinstalled for the restart of the Goodwood Trophy and then for the Chichester Cup. It is plain from the photographic evidence of the restarted Goodwood Trophy and of the Chichester Cup that the cable could not have been installed by Mr Hanley in the manner described by Mr Docherty and Mr Kenyon for the Thursday: otherwise the cable would not have been lying loose on the mesh as it was. In each instance, the camera itself was very much in the same location but the cable could not have been under the mesh at all. There is an unavoidable contradiction between what the photographs and events recorded in the radio log show, and his evidence that the cable was fed between panels on the Thursday and always reinstalled the same way. The fact that not all the photographs show visible cable on the mesh may not prove its absence, but the photographs do prove that the evidence, that it was always installed the same way, is plainly wrong.

[55]On the Friday and Saturday morning before practice and racing began, the cable was at best no more than lightly and ineffectively held by the mesh, at most sufficiently held to prevent tripping. As the photographs show, on some occasions between races Mr Hanley may have done still less, perhaps because time was more limited, and cable was left loose on top of the mesh. I am not persuaded as to the accuracy of Mr Allnutt’s recollection; he is giving an impression and not an accurate description. The cable could not be “buried under the mesh”. The accident A. William Green

[56]Although Mr Green is a motor dealer with workshop facilities, who restores and prepares cars for a number of teams and trains racing drivers, he has had an abiding and deep interest in racing cars since the 1960s. He has participated in some 1500 events around the world, has raced at Goodwood at every meeting there since the track re-opened in 1998, and has instructed pupils over hundreds of laps there. He had driven around Woodcote Corner at racing speed about a thousand times. I accept his evidence that he was completely familiar with the circuit and Woodcote Corner.

[57]He is very familiar with driving historic racing cars and with driving Maseratis 4CLTs, including the particular car damaged in this accident. He described it as very stable and an easier car to drive than many other historic cars, which I accept. There are problems with the length of the steering linkage, and other aspects of it which I shall return to, as well as those common to historic racing cars. B. The accident as recounted by Mr Green

[58]The accident happened on what was probably the third lap of the race. The Kieft immediately in front of him was, he said, being driven very erratically as it approached Woodcote Corner, and Mr Green was driving much faster as he entered Woodcote Corner. The Kieft was very fast on the straight, but the driver was less experienced than him. He was thinking of overtaking it between the Corner and the chicane, on the inside going to its right, rather than going wide to overtake it on its left. It would then have to give way to him on the entry to the chicane. He thought that the cars in front had slowed him to between 85 and 90 mph, from his normal 90mph on the entry to the Corner.

[59]He was closing up on the Kieft at 2-3 mph, he thought, as he entered the second apex and was not braking because he was racing. The expert evidence, which I accept instead, was that he was closing at about 7 mph. There was only about a car’s length between them but he had to make up two lengths to pass the Kieft. He decided to take what he thought a slightly unusual line to maintain speed, using whatever was convenient by way of edging strip or grass. I accept that he had no knowledge, nor did any other driver, of a kerb cam on the inside at Woodcote Corner. His line on the grass ran parallel to the kerb. As he started the turn under a controlled drift but with the throttle applied, “clipping the edging strip”, he “felt a massive jolt and without any warning at all the car shot off to the left.” It was a sudden jolt and lasted about 1/10th second, which he thought threw him out of his seat. He could not control the car, crossed the track, slid on the grass and into the tyre barrier where the car spun, threw him out and ran over his legs. He thought that he would have lifted his foot off the throttle but he had had no time to brake.

[60]There was a good deal of cross-examination about what could be seen on the film footage taken by two spectators, Mr Sexton and Mr Briggs. This was useful as an exposition of what the parties thought, but Mr Green’s views of what he could see on the footage are less valuable than what the experts deduced, and no more valuable than what I can see for myself. Nor did he have the better Sexton DVD. So I do not propose to rehearse his answers.

[61]He denied that he was under power on the grass on the outside of the track. He agreed that if he had been under power, the rear would have slid towards the barrier and he thought wrongly that that is not what happened. But in fact the rear left did slide into the barrier with a glancing blow, which is what brought the front left round to slam into the barrier, causing the spin which flung him out. This, he said, was because he was trying to steer away from the barrier curving in so that he had to steer to the right and could not continue in a straight line. The predominant engine sound at the end of the Briggs video was of the V8 Kieft. It is clear to me that he is right about that. It is not the sound of the Maserati as it approaches the camera but the microphone picking up the other car which has just gone out of shot. It is impossible to tell from this, in view of the other engine noise, whether the Maserati was under power, half power, or on idle. C. Other eye witness evidence about

The accident

[62]Mr Allnutt, BARC Marshall at Post 12, some 30-40 yards away, described seeing the car “suddenly kick to the left”, and head towards the tyre wall. From where he was, looking towards the approaching traffic, a sixth sense had made him turn and he saw that the Maserati had two wheels on the grass, and the kick came once it was back on the circuit. There had been nothing odd about the two cars in front; he just turned his head to see if something might happen. To him, it looked like a mechanical failure. Although that was not the cause, the comment has some value in describing the sharpness of the event.

[63]Mr Gallagher, a doctor with a great deal of trackside experience of motor races, sometimes as the honorary medical officer, was at Woodcote Corner on the Saturday, with an unobstructed view. He was standing by the fence roughly midway between where Mr Green hit the gravel trap and where he hit the tyre wall. He had got in touch with Mr Green in response to an appeal for witnesses in Classic Car Magazine, 18 months after the event. He noticed that all three cars in the group of which Mr Green was last, approached the Corner in what he called a controlled power slide, in which the car drifts under control and with power on around the corner. He could see the Maserati on the inside, its left side was obscured by the two cars in front. There was nothing abnormal about its line; with three cars in line, he was not expecting anything to happen. The Maserati entered the corner under control, about 60-70 yards away. Its right hand wheels had crossed the kerb, when it jumped once and seemed to move a foot to its left, in a very sudden and noticeable change of direction, which he could see head on. Its line was suddenly disrupted. He could not tell how far the car had jumped sideways, but it was more than a few inches and not two yards. He had seen the Briggs video which was taken from a place similar to where he was; the jump on it was not as pronounced as he had seen, but the quality of the video was not as good as the naked eye. Before that he had no particular interest in the car or driver.

[64]For what it is worth, but I accept that he has some experience, he was sure in his statement that the jump was not caused by the car riding up the kerb; it was quite different from that and he saw a number of cars cut the Corner there with no ill effect. It looked as though the car had been nudged by something. In cross-examination, he accepted that what he saw could have been caused by the wheels overrunning the kerb, but it was unusual and he thought that there must have been something about the kerb, or something on the kerb to cause the kick.

[65]Mr Bloxham has been a professional motor racing photographer for 35 years, working freelance in 2005. At the Revival meeting, he was working for both LAT Photographic and for Goodwood who shared the rights to his photographs. He had known of Mr Green for 25 years, though they had never had more than a few brief conversations. He was positioned on the outside of Woodcote Corner just before the first apex, with his camera pointing towards the front of the cars as they approached the Corner and their rear as they went round it. He thought that he was about 40 yards away from the kerb cam. The photographs foreshorten distance and sharpen the angle of the Corner. He moved to a different position for the next race, beyond the second apex.

[66]With one eye closed he was looking through the viewfinder of his camera, with a 300mm 2.8 telephoto lens attached. I think that this would have some similarity to looking through a telescope, but vision through the viewfinder is obscured when the shutter is fired to take the picture. The camera was pointing into the sun. Through the viewfinder, he thought he saw the Maserati do a sort of double bounce just before he took 3/334. He saw the right hand side wheels elevated slightly off the ground on two occasions. He was sure of that, and thought to himself that that was unusual. He agreed that his increasing conviction might have come from hearing others say that they saw the same thing. He had not noticed the kerb cam until he saw it on the track after the accident. He thought Mr Green a very competitive driver, with a determination to win, who was trying to overtake on the inside.

[67]He produced statements for everyone on 15 October 2005, describing what he thought his photographs showed. Initially he wrote that the camera was between the front and rear right wheels but corrected that in handwriting. He thought that the first bounce was the front wheel crossing the kerb, and the second was the rear going over the camera. His later witness statement said that he thought one or both of the wheels could have hit the camera. Mr Green would have been sent the photographs possibly on the Monday after the accident, but they were not sent to Goodwood and the MSA until 15 October 2005.

[68]Mr Redhouse, Flag Marshall at Flag Post 12, described the accident. He had the yellow flag and was watching cars through the Corner. He saw the right hand side wheels of the Maserati cross the kerb on to the grass as it entered the second apex on the inside. He was alerted to a possible situation developing because of the line which Mr Green had taken as he ran the kerb, straddling it. He saw the car bounce, and as it crossed back he moved so that, as Flag Marshal, he could be seen by drivers. He started to wave the flag as it crossed the track, heading for the grass.

[69]Mr Sexton gave evidence by video link. He was a motor sports enthusiast, and drove mostly saloon cars in races. He was a spectator in the stands by the second apex of Woodcote Corner. He thought that he had been about 30-40 feet away, and rejected the suggestion that it was nearer 70 yards. In my view he was about 35-40 yards away.His view was oblique along the straight as it approached the first apex, and as the car rounded the curve into the second apex, he became more broadside to it. At the point at which the kerb cam was situated, he was broadside to the car. Mr Sexton had a new DVD recorder in 2005 with a fold out viewing screen so that he could check what he was filming and watch the race at the same time. This was not difficult to do, he said, but his main eye was on the race and not on the filming. The image on the film was a lot smaller than the reality appeared to him as he watched it. On a larger 65 inch screen, it appeared more as it had done at the time. His recollection was pretty clear, he thought.

[70]The change between the line on which the Maserati entered the apex and the one on which it left was very abnormal. He thought that both, and at least one, of the right hand side wheels were on the verge. He spoke of a quite violent bang, and then a split second later, the car headed left, when previously it had been headed right. The car was thrown about, violently shaken, “literally shaken on every axis”; it was not just the ripple of a car going over the kerb. The rear reacted quite abnormally. He could not remember any drop behind the kerb stones nor the roughness of their edges. He did not see the camera; that would have been difficult to see from where he was, in my view. He could not say if he saw the car hit something, but that is what he thought at the time.

[71]The cross-examination about what the footage showed was of limited value. What he described was best seen, he thought, when viewing the footage at normal speed, not on freeze frame. The first up and down movement of the front right wheel was not abnormal and was not what he was referring to. The event he described was the second time the wheels went up and down. The cross-examination about his interpretation of how the car was driven as it crossed the track is now irrelevant, not least because it is not now said that Mr Green was negligent in what he then did. But Mr Sexton observed, in my view correctly, that Mr Green maintained his arms in the position necessary to steer to the right and continued to lean into the curve.

[72]Mr Greenslade was an observer at post 13 appointed by BARC for the 2005 Revival meeting. He is a trained and very experienced observer and flag marshal. This was the third time he had marshalled at this post for the Revival meeting. He was appointed as the observer, in position on the inside of the circuit just before the chicane. He said he had an excellent view of the accident. All three cars appeared to be following a normal racing line. The car ran wide at unabated speed as it exited Woodcote Corner and hit the barrier. He did not see it run over the kerbing. D. Experts

[73]Mr Sexton’s video footage was greatly relied on by both sides. But as the trial was under way, a significantly improved DVD version of it became available. The version previously sent by email rather compressed the images horizontally, which would have exaggerated them vertically. This led to the experts re-appraising their evidence about where the car had crossed on to the verge, where the camera was in relation to the bounce or jolt, what might have caused it, and what effect that had had on the way in which the car then behaved.

[74]The accident reconstruction experts agreed on Day 3 of the trial that the front right wheel came into contact with the camera, dislodging it, but not damaging the car. The line taken by the Maserati on the verge took it over the area where the kerb cam and cable were. A significant area of disagreement was whether the rear right wheel of the camera passed over the camera itself or just the cable and what the consequences of the front and rear wheels passing over the camera would have been.

[75]The two parts of this issue are interlinked: what happened to the car after it might have hit the camera, could be evidence that it did. Indeed, although I consider it separately, I have not ignored for these purposes the evidence about whether it was negligent to place the kerb cam how and where it was placed.

(i) Photographic

[76]I take the photographic analyses first because they should be the most objective, measurable source of evidence. The eye witnesses provide no direct evidence of contact either way, although they are relevant to the inferences to be drawn from the totality of the evidence. The photographic evidence also provides no direct evidence but the analysis of the precise extent of the wheel movements in the vicinity of the kerb cam is very relevant to whether both right hand side wheels hit it, and if so with what effect. Mr Green’s accident reconstruction expert, Mr Munro, put great weight on the wheel movements he described, which were much greater than the Goodwood/BARC experts discerned. (ii). Mr Laws for Goodwood/BARC

[77]The most valuable analysis of the DVD images was by Mr Laws, for Goodwood/BARC. He is a forensic imagery interpreter, and managing director of Kalagate Imagery Bureau. He has practised as an expert witness in the interpretation of many different types of images since 2001 in criminal and civil cases. His evidence is supported usually by specialist techniques such as photogrammetry. Before that, he served in the RAF as a specialist imagery interpretation officer, a task which involved a senior role in target selection. He is appropriately registered with expert witness bodies.

[78]He had concluded at an earlier stage that the Bloxham photograph 334 showed that the front right wheel of the Maserati had not come into contact with the camera: the front right wheel might be just in the air but the rear right wheel was in touch with the kerb, having run over the cable. He thought that the right hand side wheels had not touched the grass at all. These conclusions were expressed with some caution. Mr Ticciati overstates his criticisms of this part of Mr Law’s evidence.

[79]This conclusion was significantly affected by the DVD of the Sexton video. He had been able to analyse this closely only in his report of 19 February 2009. He presented stills taken from the frames created unusually at intervals of 1/50th of a second. He had digitized the pictures on to his computer screen and had analysed what he saw on the screen which was of a higher quality and more flexible than the printed images he could provide.

[80]He interpreted image 6 as showing that the Maserati did not cross on to the grass before the kerbing: the bottom of the tyre of the front right wheel was silhouetted against the kerbing, and the bottom of the wheel could be seen on the tarmac as well as the shadow which it cast on the tarmac through being there. I can see no way in which the shadow could exist in that place unless the front right wheel was still on the tarmac, despite what other stills appear to show. These are the best stills, and he is the best interpreter of them. I prefer his evidence on this to that of Mr Sexton and Mr Bloxham.

[81]I then accept what he says image 10 shows, 4/50th of a second later. The front right wheel is first clearly elevated, he calculates by 1 ½ inches, as it tops the kerb on to the grass. I accept the measurements he gives. The rear wheel is not yet on the grass, but is probably going up the kerb. He could not see on the better images on his screen where the rear right wheel crossed the kerb. By image 15, both right hand wheels are on the grass as the car nears the camera. Image 17 shows the wheels flat on the grass. Image 18, which was not produced, but which Mr Laws viewed on screen, would be where the front right wheel was just about over the camera. By image 18, that wheel was rising and by 19, it has been raised by 2 inches relative to the body of the car; it is just past the camera. The 2 inches was a minimum because he had not taken account of changing perspectives; the maximum would be 2½ inches. There was no visible alteration in the height of the bodywork, which would become noticeable at ½ inch and certainly an elevation of 1 inch would be measurable. I accept that.

[82]In image 22, and 775X, the rear right wheel is by the camera’s initial position; the camera may have been moved by the front wheel. At this point, 775Y, comparing image 6 with image 22 enlarged, showed the same notched shadow under the left rear wheel and Mr Laws concluded that the left rear wheel was still in contact with the track. Image 22 was probably just before the right rear wheel made contact with the camera, if it did. This comes between Mr Munro’s 523/4; the white car number “22” becomes more visible in Mr Munro’s images because the bodywork rises but the left wheel stays on the ground, exposing more of the number, and then levels out again; 526/7.

[83]The next image 23, 1/50th second later, shows the body of the car elevated by 2 inches compared to image 22. This is the only time the body rises. This could be caused either by the rear right wheel crossing over the top of the kerb stone or by contact with the camera, or both. I saw no reason to suppose that the wheel and body rise could only have been caused by the kerb cam. The front wheel is now only slightly elevated, compared to image 19, 4/50th second earlier. Image 24, very close to but just before Bloxham 334, shows the camera behind the car. From that he deduced that part of the elevation seen in image 23 was caused by the car crossing back over the top of the kerb. The front right wheel might be off the ground in that photograph; the rear right wheel was in contact but it could be slight. By image 25, the amount of kerb visible under the car, the same as can be seen when the car mounted the kerb, shows that the car is settling back from the kerb on to the track, just as its nose passes the marker post. The rear is still slightly elevated. There was very little displacement of the kerb cam parallel to the track from these events, 775 X and W. I accept what he says about all that.

[84]Mr Laws concluded that there was no imagery evidence to show that the rear left wheel left contact with the track surface, or of significant movement by the driver, laterally or vertically. He thought that it would be obvious and measurable if the rear left wheel had left the track by 2 inches; ½ inch would be detectable but not measurable. I accept that.

[85]His changed view about whether the kerb cam was likely to have been hit by the car did not show, he said, that the science was uncertain, merely that a subjective opinion outside the science could be. It was most likely that the front right wheel hit the camera, and it was possible that the rear right wheel also hit it. If so, it was at the point at which the rear wheel crossed over the kerb. The rise of the body at the same moment is equivalent to the body passing over the kerb.

[86]Mr Laws did not pay attention to what eye witnesses said but went by what he saw in the imagery to see if it provided support for what eye witnesses said. I asked about the variety of eye witnesses who had described something more severe than seen on the video and about Mr Sexton’s own evidence that the degree of jolting which he saw had not come across on the footage which he had taken and which Mr Laws was analysing. He explained that there were details which the eye could pick out which the camera might fail to do, and it could pick up things which happened very quickly. It would be possible for someone in the right position to describe something which could not be picked up from the video. However imagery was invariably more accurate for measurable displacement. (iii) Mr Munro for the claimant

[87]He is a very experienced mechanical engineer, who has worked on both aviation and motor racing engines, from Formula 1 to historic racing cars. He has had particular experience in the design of engines and parts, including the design and engineering of parts. He was nowhere near as experienced or expert as Mr Laws in the interpretation of photographs.

[88]Mr Munro accepted what he had been told by Mr Green as to the line he was driving, and what he experienced during the kerb crossing. As I shall come to, Mr Green’s evidence about his line was inaccurate. Mr Munro thought, in my view wrongly, that the Maserati front wheels had crossed on to the grass before the kerb stones began. The passage of the right hand side wheels on to the grass after a long shallow rise over the kerbing would not have caused, he thought, any more than a slight rise of the tyres, not taking the wheel off the ground, although Mr Diffey’s front right wheel did rise off the ground crossing the kerb on to the verge. The Maserati then appeared to jump twicewhich was extremely likely to be the wheels going over the kerb cam, as the only other obstruction in the vicinity of the kerb. The return of the vehicle over the kerbstones towards the track would not by itself have had any effect other perhaps than to encourage the car to hold the corner.

[89]This, he thought, was supported by the DVD of the footage filmed by Mr Sexton. Before the front wheels reached the kerb cam position, but after the right hand side was on the verge, the right front wheel appeared to rise about 3 inches and relatively slowly, unlike going over the camera; 4/519. This was before the Maserati hit the camera. It must have been a fairly significant bump in the grass. Although the mesh could be described as a fairly smooth surface, the verge could be seen as a bumpy surface. The right front wheel could have been in the air at that first bump; the weight of the car was on the left side wheels, with the right side carrying a third less than an even distribution. The centrifugal force of cornering contributed to this.

[90]By photograph 4/519, the Maserati had both right hand side wheels on the grass, a short distance before it reached the camera. The front wheel was just about to make contact with the camera in 4/522 and had done so by 4/523, which caused the front right wheel to rise. I accept that this can clearly be seen on the photograph. It had started to descend by 4/523.

[91]Mr Munro said that the driver would resist the impact on the front wheel by turning the wheel left, but this would only cause the front left wheel to react, since the front right was not in contact with the ground. This would start to turn the car left. I could see no change however in the attitude or steering movements of the driver in any photograph. It seemed to me that he always kept the right hand down a bit, keeping the back out from the kerb but pointing the front in as it went round to the right, and always leaning into the curve. I accept that, even in normal circumstances, he would have been “sawing” on the wheel to a degree.

[92]By photograph 4/524, the rear right wheel has gone past the camera which can be seen in the shadow behind it, just before the nose passes the marker post. The bottom of the car number “22” on its rear side just behind the driver’s cockpit is more visible as the body of the car rises. This was caused by the car steering less to the right, as a consequence of going over the camera with the right rear wheel. This has shot the rear right wheel into the air by at least 6 inches and the rear left wheel into the air by at least 2 inches and the body by between 3-4 inches. Photograph 4/524 shows the position just before the Bloxham photograph 2/334, as the camera is all in the shade. This is where Mr Gallagher described the leap sideways. The car itself is in the air pivoting on the left front wheel, with the right hand side still over the grass but probably not touching it. In photograph 2/334, there is no shadow under the right front wheel, and there was no sign of tyre deformation in the right rear wheel as there would be were it touching the kerbstone. This rise was not caused by crossing the kerb stone, which would create only a small bump. The leftward movement of the car has caused the right side tyres to lose adhesion. There is a visible loss of adhesion by the left rear tyre as well.

[93]The driver counteracts this with an inward lean, opined Mr Munro. I follow that in principle, but in fact I see no extra inward lean at any stage. I felt that Mr Munro was defensive and vague in his evidence at this point. Mr Munro accepted that that his view that the rear left wheel was off the ground and that the rear right wheel had risen as much as it did was new as a result of seeing the Sexton DVD rather than stills from the poor quality emailed tape.

[94]In photograph 4/525-6, the kerb cam is moving behind the car as the car passes the marker post. Mr Munro said that it was inevitable that the car would have been launched off the top of the camera although he agreed that there was not a lot to be seen of the sharper second bump which he said had occurred. By photograph 4/525 no part of the car is over the grass; the right wheels have crossed over the kerb edge, and are nowhere near touching it. The left rear wheel is still in the air. The white of the kerbstones is visible under the car because the car has been raised up by the impact with the kerbstones, and is continuing to rise. The car has moved laterally enabling the sun to reach kerbstones which it had not previously reached. (iv). Conclusions on photographic analysis

[95]I do not accept Mr Munro’s analysis of the extent of the elevation of the wheels, because I reject his interpretation of the photographs. I prefer the contrary evidence of Mr Laws on the measurements: he is much the more expert photographic measurer. He alone had the expertise to measure the rise and fall of the wheels from the better quality DVD stills. So I accept that the car crossed the kerb on to the grass as he says, that as the front right wheel passed where the camera was, it was raised by about 2 inches relative to the car’s body, that the car body only rose in the vicinity of the camera’s original position and did so by no more than about 2 inches, that the rear right wheel was in no more than slight contact with the ground just as it crossed back over the kerb, but the whole car had settled back on to the ground with only residual rear elevation as the nose passed the marker post. I also accept that there is no imagery evidence that the rear left wheel ever left significant contact with the surface. Mr Munro’s interpretations differed more in the degree of movement he ascribed to the rear wheels, and to the right rear in particular and to the movement of the body, than they did in the fact or sequence of movements. However, it is the detail and degree which matter. There is no photogrammetric support for Mr Munro’s view that the rear right wheel rose 6 inches or that the rear of the body was elevated by 3 to 4 inches.

[96]This does not mean that the rear right wheel did not hit the camera. Both are interpreting measurements from the photographs to reach their conclusions. But there is nothing in the measurements which I accept, to support Mr Munro’s view that vertical movement of the wheels shows that it did, or did with the effect he ascribed to it. Mr Ticciati suggested that the degree of rise in the body was disguised by the jump sideways described by Mr Gallagher. I do not think he was describing a lateral movement in the way necessary for broadside angles to be affected, and it would be marginal at best to these issues. (v).

(a) Mr Munro for Mr Green

[97]Mr Munro is not a member of any association of accident reconstruction experts and had not done a similar case in the last 3 years, nor did he claim to practise in the area of accident reconstruction. But his Formula 1 experience had included working out what had gone wrong on the tracks. He would also be looking at tracks to see why parts failure had occurred. His theory was this. Both right hand side wheels went over the kerb cam in quick succession. The rear wheel hit the kerb cam at 85 mph, just 0.066 seconds after the front wheel hit it, raising the rear wheel 5-6 inches off the ground. The stiffness of the suspension would have raised the left wheel 2-3 inches off the ground. The vertical speed would have been 20-27 mph. With the front wheel also off the ground, the car’s weight would have pivoted on the left front wheel, turning the car sharply to the left uncontrollably. The outward drift of the rear of the car induced by use of the throttle to take the front of the car around the corner would have been wholly eliminated. His theory did not depend on whether the cable was fixed or not.

[98]On Mr Munro’s analysis, for the effects he observed to occur, the kerb cam must have become fixed so as to act as a lever just before or through the effect of the rear wheel making contact with it. When the front wheel hit the kerb cam, it would have pushed it forward but not by much and then would have thrown it back as it rolled over it, probably moving it parallel to the kerb or slightly infield, rather than significantly sideways, as Mr Symes for Goodwood and BARC was to contend. As the kerb cam was tumbling through the air or along the ground after the front wheel hit it, it would have got caught in one of the larger cracks or notches in the rear of the kerb stones, where bits had been eroded or crumbled away, or it could have caught in the plastic mesh. The kerb cam had then been gripped between the rear right tyre, which had sufficient tread, and the kerb stone or mesh, turning the kerb cam into a lever. The mesh, even though relatively springy, would be sufficiently firm to act as the base for the lever; the kerb stone even more so. (The rough edges of the back or top of the kerb stones can be seen in photographs 2/340A and 2/387A.) If hit on the infield side the kerb cam would have been spat out on the track side.

[99]If the rear wheel had hit it when it was upright or nearly upright, at more than about 60 degrees to the ground in such a spot, and had caused the kerb cam to become fixed or wedged in that position even for a fraction of a second, the kerb cam would then have created a straight load path between the tyre and the ground, levering the car into the air. The load path from tyre through kerb cam to the ground would cause the wheel to climb up unless the kerb cam, or another part of the load path, had slipped away. This straight load path might only last a fraction of a second but that would be long enough to launch the car into the air at a vertical speed of 20-27 mph. This would then cause the kerb cam to be fired out behind the car, and on to the track. The rear wheels were under power unlike the front wheels. The kerb cam could not have been on grass without mesh for this to happen; and it did not happen on the track or sloping face of the kerb stones.

[100]It did not matter whether the rear wheel had hit the kerb cam on its base, top, chamfered sides or on its rounded edge. The part hit had to be upright or nearly so, at 60 degrees or more, or else the wheel would have flattened it back to the ground. Nor could it have been at 60 or more degrees to the ground but tilting away from the oncoming wheel, since it would simply have been knocked to the ground forwards. The wheel running over it when flat on the ground would not have caused the uncontrollable leftward movement. The kerb cam would have had to become fixed nearly upright when hit or else it would not have acted as a lever, raising the wheels off the ground. It would instead have simply been knocked back and run over flat.

[101]In cross-examination by Mr Barker QC for Goodwood and BARC, Mr Munro said that it was fairly unfortunate for this to happen, because the car had to hit the kerb cam at just the wrong angle. He had conducted no tests to try to replicate what he said had happened; he could try for 50 years and not manage to get all of the parameters right, and he could also create a worse accident. He would have to throw the kerb cam at the wheel at just the right angle in just the right place, to reproduce the effect of the front right wheel hitting the camera and sending it tumbling backwards. It then had to become fixed for a fraction of a second so as to present a straight load path from tyre through kerb cam to ground. But although he could not replicate what had happened, and there was a degree of speculation in what he said, something of the sort which he had described must have happened in order for the car to have been affected in the way it was.

[102]The parameters were precise camera location at Woodcote Corner, tyres and pressure, speed, angle of impact, kerb of sufficient unevenness, ground resistance and so on; there were too many variables which would have to be correct for the accident to be replicated. It was not possible to calculate the parameters either. The parameters were dynamic and not static which made it even more difficult to reproduce the ones which had combined to cause the accident. Mr Munro did agree however that it would have been possible to test whether the passage of the front wheel would have caused the kerb cam to rise in the air.

[103]Mr Munro said that it did not matter whereabouts the kerb cam had been hit. If even one variable were changed, the accident would not have happened in that location. Although the precise combination of variables would change with each precise location or angle of strike, and each combination would therefore be unique, there were several unique combinations which would produce the same effect on the car. It would be possible to drive around the circuit using the verge many times without anything going wrong. The right chain of events would be necessary but Mr Munro was of the view that an accident was readily foreseeable, although the camera would have been crossed many times without an accident, and wheels would usually have met it flat and just pushed it down.

[104]Although quite a significant blow, it would not necessarily have been enough to damage the tyre. It would not have mattered whether the edge or broad face/base of the camera had been hit. Either could have produced the effect which he saw. It was extremely unlikely that the second jump lasted too long to have been produced by a small camera. He was very certain that it had been caused by the right rear wheel passing over the camera which had been set in motion by the right front wheel.

[105]Mr Munro said that Mr Bloxham’s photograph 2/334 showed the rear right wheels in the air above the kerb stones, that the rear left wheel was not fully gripping the ground, and so all the weight of the car was borne by the left side, and the greater part of that was borne by the left front wheel. The kerb cam is in the air a few inches above the track, behind the rear wheels of the car towards its right hand side. The sun on the face of the kerb cam shows that it is not under the car and the absence of a separate shadow shows that it was about but no more than 5 feet back from the rear axle. The cable is still attached, snaking back over the verge, partly in the air as well. The dust cloud in photograph 2/334 marks the place where the rear wheel hit the kerb cam and not the cable being pulled by that impact. The force required to propel the kerb cam into the air would have been ample to propel the light and loose cable into the air. Mr Munro thought it unlikely that the cable would still be moving if the rear wheel had just run over it.

[106]Since that levering effect was what could be seen on the Sexton film and Bloxham photographs, and was what had been described by Mr Green and other witnesses, an explanation for it had to be found. This was the only explanation. This, I note, is an important input into is analysis. It is his starting point.

[107]The camera was probably presenting its lens face or edge to the wheel, as in the footage of Mr Diffey’s Lotus hitting it, according to Mr Munro. To my mind, photographs 3/493 G and H show that the camera was more oblique to the track, and the wheel would have passed more over the face and chamfered sides.

[108]Mr Munro did not think that the effect of the right hand front wheel hitting the kerb cam would have been of any great significance although it would have raised the wheel off the ground and caused the car to head left, but not into the barrier. That by itself would therefore have been readily controllable. The effect of the right rear wheel alone hitting the kerb cam would have been much more significant. It would have caused the rear wheel to rise off the ground, and would have raised the rear axle so that the left rear and front right wheels carried less weight. The front left wheel would have borne the majority of the weight of the car turning it sharply left. That by itself would therefore have been controllable before the car got on to the grass. Neither contact alone could have caused the accident.

[109]Mr Munro concluded that the only probable explanation for the accident at the tyre barrier was that the car had hit the kerb cam with both right side wheels in the sequence of events he described. It would not have been caused by an excessive entry speed into the corner because the car could not have got round the first apex without going to the gravel trap. The kerb itself could not have caused the accident, or more than a little bump.

[110]He had no experience of the safe positioning of cameras for motor racing, and his comments on that were based on the effect which any object weighing ½ kg could have flying around loose on or near the track. However, he did not agree that it was safer to leave the kerb cam unbolted; the danger from a bolt coming loose and flying on to the track depended entirely on the length of the bolt. It would also be but a tiny fraction of the weight of the kerb cam and although that would make it more airborne, it would not make it go further or faster.

[111]For what it is worth, Mr Green’s view was close to Mr Munro’s.The front right wheel running over the camera flat on the ground would have created very little problem for the front wheel. Even with the stiff rear suspension, the rear wheel could have passed manageably over the kerb cam if it had been bolted down or flat. He offered the view that the accident was caused by the front right wheel running over the camera, throwing it into the air where it then collided with the rear right wheel which threw the rear wheel into the air, making the car uncontrollable. He thought that he might have compressed two jolts in to one. His view was based on part of the photographic material before the court and two witness statements. I do not regard Mr Green’s view on this particular mechanism as of any consequence; he lacks the expertise and material to make that judgment.

[112]Mr Marriott, an experienced producer of motor racing TV programmes thought the car would be unnerved by going over the kerb, and could buck or bounce on return if it hit the lip of the kerb or a depression behind it. This was not his area of expertise particularly but he has relevant experience which I do not discount.

The accident reconstruction experts: (b) Mr Symes for Goodwood/BARC

(b) Mr Symes for Goodwood/BARC

[113]Mr Symes is the MSA Technical Director. As the MSA’s Technical Director, he oversees the issue of licences for venues, risk management, technical regulations, and a host of other technical responsibilities. In 2005 he was its Technical and Risk Control Manager. Before that he had been its Environmental and Safety Executive. He is a Chartered Mechanical Engineer, with earlier experience of operating four motor sports circuits, and in more general engineering. He is a long standing motor sports enthusiast and has acted as a race Marshal and as Clerk of Course on many occasions at all levels of competition, here and abroad. He has had a long standing involvement in motor racing safety both before and after he became an MSA employee.

[114]Mr Symes rejected Mr Munro’s views. In chief, he commented on the way in which the front wheel would have affected the camera, which on Mr Munro’s theory had caused the camera to rise in the air so that it became trapped by the rear wheel. If the front wheel had hit the lens face, it would then have run on to the cable which would become trapped, restraining movement by the camera. If it ran over the chamfered sides of the camera, it would merely disturb the camera. If it ran along a chamfer, it would displace the camera sideways. This is what he thought accounted for the position of the camera in the Bloxham photograph, 334. It could not have got there if it had been hit by the rear wheel; the camera was still within the shadow of the car and within 5 feet of the rear axle and could not travel that distance in the time. Something had to cause the camera to be spat out sideways, and he could not see on the Munro theory how that could have happened. If the wheel had hit something equivalent to a 5 inch kerb, Mr Munro’s assumed position of the kerb cam, he would have expected to see both a major disturbance on the video and damage to the tyre and wheel but there was none.

[115]Mr Symes thought Mr Munro’s view of how the rear right wheel had then hit the camera, raising the car into the air, was highly theoretical and depended on many narrow parameters all being met. It was most unlikely: the camera could not stand on any end or edge except perhaps the lens face. If broadside on to the approaching rear wheel, its top edge leaning towards it at more than 60 degrees, the tyre edge would strike the camera, push it forward on to its base or face and the wheel, with the benefit of tyre and suspension, would just roll over an obstruction no more than 38mm high, with minimal vertical rise. If it struck the camera edgeways, the camera would topple over with so slight a contact on the ground. Once the camera had reached 90 degrees, it would be pushed over and the “strut” effect would cease, having lasted for a fraction of a second. Mr Munro’s theory was not even a possibility. The wheel would be going forward, and then its speed over the object would be nil, fractionally before the part of the tyre in contact with the object continued anti-clockwise backwards in its revolution.

[116]He was acerbic in his report about the calculations of vertical acceleration done by Mr Munro. The calculations were done, he said, without reference to the effect of pneumatic tyres and sprung suspension, which would affect significantly the reaction of the car to being driven over the kerb cam. Mr Munro had in effect assumed a completely rigid system. He agreed in cross-examination however that the inputs were correct for the calculation on the basis of a rigid system, and that the answer arrived at was correct on that basis. He was taken by Mr Ticciati to the text under Mr Munro’s calculation, which acknowledged that allowance had to be made for the effect of tyres and suspension. Here, Mr Munro’s calculation was qualified by words which described the effect which the tyre would have, which would reduce speed to 20 -27 mph vertically. The angle of rise would give a backward blow to the wheel, partly absorbed by the tyre but the load would have to be absorbed by steering gear, suspension and then the car mass itself. Mr Symes had not attempted to calculate the effect of the tyre or suspension on the rigid system calculation. Mr Symes also agreed the calculations of overturning moments, to which suspension and tyres were irrelevant.

[117]It took 0.066 second for the rear wheel axle to pass the spot where the front wheel axle had been; that was enough time for the camera to be spat out between the right hand side wheels, and bounce around under the car. It was only 200mm inside of the inside of the tyre. He agreed that if it could avoid the rear wheel in that way, it could also be in a position in which the rear wheel could hit it, but the kerb cam had much less time to reach the position shown in 334 if it was only hit by the rear wheel.

[118]The claimant’s team provided me, in response to my general request, with a calculation of the speed at which the camera would have had to be travelling to reach that position if it had been hit on the kerb/verge edge by the rear wheel. This was 9mph.I confess to some doubt as to what distance for the lateral movement of the camera from the kerb/verge edge to being 200mm “inside” the inside of the rear tyre must have been input in order to reach that result, which I found surprisingly slow. But no one challenged it or put forward an alternative, or suggested that at that speed or even double, which is nearer what I would have expected, the camera could not have reached that position after being hit by the rear wheel on the edge of the verge. Nor did Mr Symes do any calculations of the speed at which the camera must have been travelling to get between the right wheels and on to the track in order to avoid hitting the rear wheel.

[119]Mr Symes had taken the view in the Questions and Answers of December 2008, that the camera had been moved by one of the cars in front, and that the Maserati right hand side wheels had both passed over the cable. He now thought, because the Sexton video showed that the Maserati had been on the grass, that the camera had been hit by the front right wheel in a sideways impact, spitting the camera out sideways on to the track. He remained of the view that the rear right wheel had run over the cable, but had not made it taut so as to arrest the movement of the camera. The dust in the Bloxham photograph 334 was raised by the cable moving on the earth or by the vehicle tyre on the grass.

[120]The right hand wheels would have been less heavily loaded as the car went round the right hand bend, and with the tyre and suspension that would have meant that contact with the camera would not have resulted in any loss of control. He could detect no significant jump of the car in the video when on the verge or kerb in the vicinity of the camera; the slight vertical movement detectable was the car clipping the kerb edge as it crossed back over from the verge. The better quality version of the Sexton video did not alter his views. He only saw the Maserati gaining on the cars in front, at about 7 mph or 8 percent faster, clattering over the kerb and being unnerved as the smoothness of its passage was taken away.

[121]The car was in a generally unsettled state, typical of corner cutting, as would be found crossing the kerb or the camera. This was a fairly typical kerb and not as sharp as some other types. Corner cutting was a calculated risk but it caused the car to behave to a degree unpredictably. Crossing on to the grass is less significant because the wheels rise along the upward slope of the kerb. Mr Symes illustrated that by a calculation. It showed how quickly an increase in the distance over which the car travelled in making the crossing would reduce both the angle at which it went up the back slope and the angle which it bore to the ground. The converse applied to crossing the lip of the back of the kerb stone, which was not quite vertical.

[122]In cross-examination by Mr Ticciati, Mr Symes said that the camera would probably not be dislodged if a car ran over the top of the camera, although it would be dislodged if the car brushed its side or dragged the cable; this view agreed with Dr Searle but qualified somewhat or clarified precisely what Mr Symes in the joint report had meant by “top”. The Bloxham photographs showed the camera dislodged on a number of occasions by the action of a wheel. It had been properly installed in his view and yet was still struck by the side of a wheel, dislodging it on to the track or infield.

[123]The historic cars at the Revival meeting, such as the Maserati, are generally heavier and less sophisticated in design and construction than modern cars, and were expected to race on circuits which were well below the modern standards of smoothness, absence of voids, and maintenance of verges and run-off areas. They race at other venues in the UK as well, which are similar to Goodwood in track, kerb and verge.

Accident reconstruction experts (c) Dr Searle for Goodwood/BARC

(c) Dr Searle for Goodwood/BARC

[124]Dr Searle is a very experienced Chartered Engineer, who worked for 25 years at the Motor Industry Research Association, looking at human factors in driving and then heading the separate Crash Research Group, and the accident investigation team, eventually becoming Scientific Director. His experience included kerb strike tests, and going over “knobbles” on a test track. He had seen vehicles drive over objects similar to the kerb cam, but he had no experience as a racing or historic car driver and most of the accidents which he investigated were on ordinary roads. He now runs his own accident reconstruction consultancy. He had given evidence before for Goodwood in the Wattleworth litigation and he knew Mr Symes, but only in a professional capacity.

[125]Dr Searle was of the like mind to Mr Symes. Dr Searle thought Mr Munro’s calculation of vertical acceleration surprising because 40mph was a lot for running over something not much bigger than a cat’s eye. He also thought it meaningless because it did not allow for the effect of the air in the tyre or the spring in the suspension. The Maserati tyre had an air channel some 8-10cm diameter, which would take up the impact of the camera and the car would roll on. This effect as with the effect of suspension could be measured but not calculated, but it would be orders of magnitude less than Mr Munro had allowed for.

[126]Dr Searle commented further on Mr Munro’s theory: the front right wheel would have struck the kerb cam when it was flat on the ground. If it had run over the chamfered sides, the passage of the wheel would have held it down and it could move a few inches but would be essentially undisturbed. This is what happened with the Fiat Uno test. If it had run over the ends or had hit the end and sides at an angle, the front wheel would have ended up on the cable; that would have restricted the movement of the camera. So the kerb cam could not be upended so as to wedge in a notch.

[127]He regarded Mr Munro’s theory as requiring fantastic coincidences given the parameters which all had to combine: the camera at the correct upward angle in relation to the oncoming rear tyre, at the correct angle in plan so as not to be pushed out of the way, the camera had to be at the right height above ground, it had to be in the right place on the ground to find the notch which would hold it, and the top edge of the camera had to be in the groove of the tread. Even if it did hit it perfectly, the strut would be pushed away by the wheel and the perfect scenario would cease to exist. The 5 ½ cm hexagons of the mesh were not large enough to provide a wedge for the camera, and if the bottom of the camera were in a place with any give it would just fall over. The mesh could not do that. If the forces of several tonnes which Mr Munro envisaged were created to eject the car into the air, that same force would simply cause the walls of the mesh to collapse.

[128]Dr Searle had tried to test Mr Munro’s theory by running an elderly Fiat Uno over a replica camera mounted on a tarmac test track; it only made a toc toc sound with no more disturbance than running over a cat’s eye. It was not tested however at a speed greater than 50 mph. The jolting going over the Woodcote kerb in each direction would be greater than going over a kerb cam. The vertical acceleration Mr Munro spoke of would not occur. An impact of the sort necessary for the car to do what Mr Munro thought, would damage the tyre and wheel, because the force would be too large in theory to be absorbed by the tyre and wheel. The Fiat would have accelerated vertically at 25 mph if the Maserati did so at 40 mph. Kerb strike leads to damage at below 25 mph. (This misunderstands what Mr Munro actually said.) In reality the car would cause the camera in the assumed near vertical position to collapse as it went over it. He was not aware that the profile of the kerb, seen in March 2006 and which he had described in his report, was not the same as had existed at the time of the accident. The details he said were of no importance; the generality was the same.

[129]In Dr Searle’s report and by reference to photograph 334, he had concluded that both wheels had run over the cable, but that the rear right wheel had yet to go past the camera. I do not understand how he could have interpreted the photograph in that way, seeing the cable behind the rear wheel and the direction the car was going in. He thought that Mr Symes might be right that the light on the camera could be ambient light not sunlight because there was no separate shadow as there would have been, given the angle of the sun. I disagree. It is clearly direct sunlight. No separate shadow is visible because the camera “shadow” is within the shadow cast by the body of the car. The left front wheel pointed slightly out to the left, toeing out, and the kerb was redirecting the car to the left. The camera had come free from its fixing, whatever he meant by that. He said in chief that, after the better quality Sexton DVD and Mr Laws’ analysis, he now accepted that the right front wheel had hit the camera, and that both right hand wheels were on the verge.

[130]Dr Searle in oral evidence was of the view however that the front wheel may have clipped the camera which could have caused the sideways movement of the camera on to the track, but that could also have been caused by the rear wheel clipping the camera after the passage of the right wheel had left it undisturbed, perhaps by running over it flat. The dust in 3/334 was caused by wheel, cable drag, camera or all three and he could not apportion it. He agreed that it was a new suggestion of his that the rear wheel could have hit the camera, but he said that it followed logically from the front wheel hitting it. But if the front wheel clipped it sideways on to the track, the rear wheel went over the cable. A glancing blow to the edge of the camera could still leave sufficient slack in the cable as the car rolled forward for the camera to end up on the track, but not if it went squarely over the camera. But it was more likely that the camera movement was caused by the edge of the tyre nipping it than it being caused by the wheel dragging the cable. If the front wheel hit the camera, propelling it with some force, it could also hit the lip of the kerb which would send it backwards in any direction.

[131]He told me that hitting the kerb with the rear right wheel could elevate the wheel by no more than 4 inches but would not elevate the body to the rear. 4 inches was the limit of the travel of the suspension. The rise in the body would be less until its rise caught up with the wheel but here time was too short for that to happen. The elevation of the wheels in 3/340A, an enlargement of 334, was typical of a car coming back across the kerb. The car would be slightly airborne at the start of the incline. This produces no dramatic effect by itself, but if the car is cornering too fast and too tight, there will be a total loss of control. The kerb cam would not have an equal effect to the kerb, even if the car went over the top, and it would have still less if it went over the side in such a way as to squeeze it out. Only one wheel at most went over the top of the kerb cam, rather than nipping its side. If there were any loss of contact between the left rear wheel and the ground, it would have been for so brief a time that the car could not move one foot sideways, or suffer a catastrophic loss of control. Nor did the car actually move one foot sideways. The eye witnesses described something different from what happened.

[132]Mr Docherty thought that Mr Sexton’s video together with the Bloxham photograph, showed that the rear right wheel was moving to the edge of the kerb, forcing the camera and cable out on to the track and that that could account for the dust, which the wheel simply passing over the camera could not have raised. The wheel of the car was then presented to the side of the kerb. He may be right, but as evidence about this it is of limited value. E. Conclusions : did the Maserati hit the kerb cam and if so with what effect?

[133]I have already set out my conclusions on the photographic measurements, though I reached them having considered all the accident related evidence. Mr Munro’s analysis of how the accident happened is wholly improbable and I am wholly unpersuaded that what he said happened to the right side wheels of the Maserati and kerb cam was more probably than not what happened.

[134]It required an unlikely combination of circumstances to have occurred, even on his evidence: the moving kerb cam had to be hit at just the right angle with part of it becoming wedged within a tiny fraction of a second. Even though a number of combinations could each have produced the straight path required to create the lever he postulated, it remained a very unlikely event. The precise combination of parameters could not be replicated or calculated. No drawing was produced to illustrate the size of notch or gap into which some part of the kerb cam would have had to be wedged to produce the effect he referred to. Such photographs as there were of the back of the kerbstones and mesh did not show in my view any into which any part of the kerb cam could have become wedged even for a fraction of a second. I do not see how the mesh would have provided such a hold.

[135]It is far more probable that, if the right rear wheel hit the kerb cam, it did so when it was flat on the ground. If it did so when the kerb cam base or top was at some angle to the ground, the wheel simply flattened it on to its base or top as it hit it, or knocked it sideways and flat if it had been on edge to any degree. I accept what Mr Symes and Dr Searle said about this.

[136]Mr Munro’s calculations, in addition, while perfectly correct in themselves and unfairly scoffed at by Mr Symes and Dr Searle, who had failed to read or understood the textual qualifications he had properly set out, nonetheless cannot support his theory. Assuming the ground to be firm, which may be largely true of the mesh but not of any parts of the grass verge behind the curving kerb which the straight edged mesh could not reach, the calculations admittedly could not take account of the effect of the Maserati’s suspension, stiff though it may have been, nor of the tyre pressure. Textual acknowledgment of this deficiency and a rough estimate of a reduction in vertical acceleration to allow for it, is an unsatisfactory basis for allowing for two such important factors. Again some tests with similar cars might have helped. Only Dr Searle gave evidence of any test, and though I accept that a Fiat Uno and a Maserati differ in certain respects, there were enough parallels on tyre pressures and suspensions for his test to cast real doubts over Mr Munro’s rough allowance.

[137]Mr Munro sought to refute opposition to his theory by contending that some explanation had to be found for the behaviour of the Maserati, and this was the only one which could do that. He supported that with calculations of how it could have happened. If the evidence of Mr Green and the eye witnesses, together with his interpretations of the Sexton DVD, represented an accurate account of what happened at the kerb, there may be more to what he says. He is in my judgment however seeking an explanation for something which did not happen in the way he thought it did.

[138]His interpretation of the rising and falling of the right hand side wheels as seen on the Sexton DVD is unsound and for the reasons I have given I prefer that of Mr Laws. There is therefore no objectively measurable support for the degree of elevation of the car which his calculations sought to explain. I do not accept that the 2 inch rise in the body at Mr Laws’ image 23 when the rear wheel is in the close vicinity of the kerb cam and kerb crossing means that the whole travel of the suspension of the rear right wheel has been absorbed and that the rear wheel has gone 6 inches into the air.

[139]The Sexton DVD, as analysed by Mr Laws whose evidence in this respect I accept entirely, shows that there was no sudden leap sideways, nor did the car do any sudden jump as dramatic as that described by Mr Sexton. Mr Laws fairly accepted that eye witnesses have advantages in certain respects over a film, as do I, but the degree of vertical movement is measurable and has to be given weight over the dramatic jolt they described.

[140]Nonetheless, in my judgment, it is more probable than not that the rear wheel did hit the kerb cam, though with much less dramatic effect than Mr Munro assumed and sought to explain.

[141]The effect of the Sexton DVD on the evidence of Dr Searle and Mr Symes means that much of what they say in the Questions and Answers and in the Joint Report is superseded, and cannot now usefully be referred to as their evidence. Their oral evidence is more accurate as a reflection of their views, and as a source for comparing their past erroneous certainty and their current confidence.

[142]The photographic interpretations proffered by Mr Symes and Dr Searle were of no more value than lay opinions, and I felt that their earlier confident but erroneous assessments were partly the product of minds unwilling to contemplate that the wheels of the Maserati had hit the camera at all.

[143]All experts agreed, eventually, that the right front wheel hit the kerb cam. It was a necessary part of Mr Munro’s theory that it had done so, in order to set the camera in motion so that the rear wheel could hit it at just the right angle and in just the right place along the kerbing. It became evident that the denial long maintained by Goodwood/BARC’s experts before trial that the camera had been hit at all by the Maserati was unsustainable; I was surprised that they had been so confident that the car had only hit the cable. Their theory then became that the impact of the right front wheel alone on the kerb cam had caused it to move sideways, as shown in the Bloxham photograph, and the rear wheel had then run over the cable, raising the dust seen on the photograph. But this theory owed everything in my judgment to convenience and not to evidence; it explained the movement of the camera but without attributing responsibility for the subsequent line taken by the Maserati to any impact from the rear wheel, which was alleged to be the real cause of the accident. As the evidence of Goodwood/BARC’s experts developed, both Mr Laws and Dr Searle, but not Mr Symes,accepted that the rear wheel could have hit the camera as well as the kerb.

[144]For my part, I could see no evidence which showed that the rear right wheel had not hit the camera, though I accept that it may not have done. The balance of the evidence rather persuades me that it probably had. First, it is agreed that on the line taken by the Maserati, its front right wheel plainly passed over where the camera was positioned, as it is agreed that it hit it. There was no evidence that the set up of the rear wheel meant that its track would not follow the track of the front wheel closely enough to hit the same object if that object remained in the same place.

[145]Second, although the front wheel could have caused the camera to move sufficiently out of its position for the rear wheel to miss it altogether, the impact of one wheel had to cause the camera to be thrown out in the air across the track as shown in the Bloxham photograph. If that had been the front wheel, the camera would have to have been thrown in the air between the right hand side wheels and under the vehicle without being knocked down by any part of it; and the rear wheel would then have run over the cable. But if that is what had happened, I would not expect to see the camera in the air behind the rear wheel sufficiently far out on the track for it to appear on a line between the rear wheels. I would have expected the rear wheel passing over the cable to have arrested the camera’s lateral and aerial movement quite sharply, which is not what is shown. The dust, although relied on by Mr Symes, is entirely neutral; it cannot be ascribed to the movement of the wheel over the cable any more than to the movement of the wheel over the camera. Mr Munro calculated the speed at which the camera would have had to be travelling to reach the position shown in the Bloxham photograph if it had been hit by the rear wheel on the verge. Although I found his calculated speed of 9 mph surprisingly low, the calculation was not challenged, and no evidence was put forward to support Mr Symes’ hypothesis that for the camera to have travelled that distance, it was more probably hit by the front wheel.

[146]Third, Mr Laws’ photogrammetric evidence, which I have accepted, did not show a difference between the elevation of the right side wheels as they passed over where the camera would have been, which suggests that, if the front wheel hit the camera as agreed, so too did the rear. This evidence did show that the body was more elevated as the rear wheel crossed the kerb (and on Mr Law’s evidence may have passed over the camera) than when the front wheel had crossed over the kerb. But as the experts were agreed that the front wheel had hit the camera this difference could not be explained by the rear wheel not hitting the camera as well. Quite the contrary.

[147]Fourth, the general description of an unusual jolt given by eye witnesses did not suggest either that the real jolt was experienced only at the front nor does it distinguish between front and rear. The car is seen as a whole from front to back in their descriptions. I have also viewed the Sexton DVD at all speeds; I found half speed the best at which to see very short incidents to a moving vehicle. A ripple appears to go through the car. Some could say it “bucked” as it crossed back over the kerb, first with the front right and then with the rear right wheels. The rear right wheel and body movement is certainly not less marked than the front right which shows that no obstruction hit by the front had been missed by the rear. I saw no photographic evidence to support any sideways jump, the precise location of which was unclear. It is also relevant to this appraisal that Mr Munro thought that contact between the camera and the front right or rear right wheel alone would not have been the cause of the accident. Nor was his evidence that contact with both wheels flat on the ground would have caused it.

[148]Accordingly, I conclude that it is more probable than not that both right hand side wheels hit the camera. As I conclude that it was impact with the rear wheel and not with the front which caused the camera to be spat out across the track, and I have no specific evidence that the rear wheel followed a different track, the front wheel must have moved the camera to a limited extent and the rear wheel must have hit it on the side, with what Mr Ticciati described as the “tiddly wink effect”, rather than running over the whole camera. If the rear wheel did follow even a marginally different alignment, the camera could have been hit in its side and spat out, after the front wheel had run over it without disturbing it at all. This reduced the impact on the car which hitting the kerb cam could have had.

[149]Although the Maserati hit the kerb cam with both right hand side wheels, the effect was not of itself significant. I have rejected the evidence of a dramatic jolt and Mr Munro’s theory of how the dramatic jolt must have occurred. No other mechanism for attributing a dramatic effect to the passage of the car wheels over the camera was identified. If the wheels hit the camera when it was flat on the ground, whether over the top and side or just the side, or even on the edge, the effect would not have been dramatic. Even on Mr Munro’s and Mr Green’s evidence, any effect would have been controllable by itself. The jolt, however described, was predominantly caused by the passage of the car coming back over the kerb stones.

[150]Mr Munro contended, quite rightly, that something must have caused the Maserati to cross the track in the way it did. I do not think that it is legally necessary for an alternative to be found more probable in order for the conclusion to be reached that it was probably not caused in the way put forward by Mr Munro for the claimant.

[151]Goodwood/BARC hinted in their closing submissions, and confirmed in response to a written question from me, that if I were to find as I have about how the kerb cam was hit, their submission was that that was the end of the claimant’s case. There was no scope, on the way in which the case had been put, for the claimant to argue that placing the camera where it could be hit with that sort of impact was negligent. His case had always been that it was negligent for the defendants to install the camera only if the accident had occurred in the way in which Mr Munro had said. It was not open to the claimant now to allege negligence allied to different causation. Mr Ticciati submitted that it was open to me to find on the evidence and on the pleadings that the defendants had still been negligent in placing the camera on the inside of the Corner, and that that negligence had caused or contributed to the accident.

[152]Mr Ticciati is right. Paragraph 27(a) of the Consolidated Particulars of Claim is deliberately general. Subparagraph (b), which contains Mr Munro’s theory is expressly without prejudice to that generality. If I find that the defendants’ negligence caused or contributed to the accident in a way other than that contended for by Mr Munro, Mr Green is still entitled to a degree of success. There was nothing in the way Mr Ticciati conducted the case to alter that position or to prejudice the defendants in what he now contends.

[153]In any event, in reaching my conclusion that Mr Munro’s theory is wrong, I have had to consider the alternative theory put forward by Mr Symes, Dr Searle and others which is that the accident was caused by Mr Green driving too fast for the line he took, crossing the kerb and unsettling the car in the process. In essence, for the reasons which I now come to I have accepted that alternative theory. F.

(i) Mr Green’s evidence as to line and speed

[154]The manoeuvre which Mr Green was trying to execute involved overtaking a powerful car but one which he thought was being driven rather poorly. He was catching up, and doing so faster than he thought, by 7-8 mph rather than 2-3 mph, as they entered Woodcote Corner. He was about a length or so behind at the start of the second apex, and was going to overtake on the inside of the bend rather than swinging wide, so as to force the Kieft to give way before they entered the chicane which is not long after the end of the Corner. He needed to be two lengths ahead by the chicane. Mr Green was focusing on this manoeuvre, in my view, and drove at the speed which would enable him to achieve it, entering the second apex at 85 mph.

[155]Although he was in a race, it was a race which he knew he could not win. His experience at Goodwood helped him to corner faster using the best lines in and out, and accelerating earlier on the exits, which was his aim in order to overtake. He was not frustrated at being in 7th place. What he then did in crossing on to the verge was a specific racing tactic; he had never seen anyone disciplined or penalised for having two wheels over the kerb or on the verge. He did not distinguish between the two anyway.

[156]Mr Green said that the conventional line around the corner was the dashed line on 3/490A, which approaches the first apex on the outside of the bend, takes a gentle turn to stay close to the outside of the short straight passing the “Super Shell” building, and then crosses the track to the inside of the bend, on the second apex, exiting wide to continue the turn once more on the outside of the track. This line is very much the darkened line of tyre marks. Mr Green preferred a faster line, which he drew in yellow, crossing to the inside of the first apex, taking a sharper turn on the outside of the short straight and then crossing to the inside of the second apex before exiting wide as with the conventional line. Both these lines could involve “clipping” the kerb stones on the inside of the second apex; this meant touching the edging strip or driving along it. In fact he took neither of those lines.

[157]In oral evidence, he drew a blue line to show what he had done and intended. This was the first time in the race he cut Woodcote Corner. He decided, at about the “E” in “SHELL”, as he made the sharp turn on the outside of the short straight, to drive over the verge on the inside of Woodcote Corner, and to exit tight to the inside rather than wide to the outside of the bend, as on the conventional or his yellow preferred line. This blue line makes the turn sharper on the outside of the bend but straighter at the second apex, depending on the exit line. He then drew another line which he thought more accurate and which showed him tighter to the outside of the bend on the short straight, but exiting on a wider curve than on the blue line, but not as wide as the conventional/preferred line. The sharper the bend, the slower the speed was a basic principle he agreed, and if the line was sharper than intended, the car needed to slow down.

[158]He said that “crossing the edging strip” was a reasonable and entirely routine manoeuvre. It was not a problem for historic cars driven by those with experience of how they react. He told Mr Gardiner that he was aware of the heavy dew and that the grass would be wet that morning; it had not been his intention to use the grass. His yellow preferred line did not involve using the mesh or grass, but the blue line did involve going on the grass, or rather the mesh. He did not normally use it because of the risk of puncture on the sharper back edge of the kerb stones. The grass also gave marginally less grip; centrifugal force shifted weight to the outside wheels. However, this blue line maintained entry speed and gave greater exit speed from the corner for overtaking. He thought that he had more or less turned as he crossed the kerb on to the grass. The blue line was an accepted line and, he claimed quite wrongly, the Goodwood driving standards engineer advocated it. The reduction in grip and the bump crossing the kerb were easily controllable changes which he had experienced over a hundred times. The Maserati wheels were set up for a marginal “toe in” but in the Bloxham photograph 3/334 the front wheels were toeing out, with the left front pointing left and the right front pointing right. This was caused by the flexibility in the steering responding to the kerb crossing or possibly an impact with the camera, he suggested. But with the front left wheel on the ground and the front right in the air, and the left rear bearing the weight at the rear, the direction of travel would be left.

[159]In fact, none of the lines which Mr Green drew are correct representations of what he did before the accident. I am surprised that no reasonably accurate drawing of the line that he actually took was ever produced in view of the controversy over how the accident was caused, and the availability of video footage from which it could have been plotted quite accurately using track surface colour changes.

[160]Mr Green agreed in evidence that his line at the approach to the first apex and in the short straight was closer to the centre line than he had originally said and was not on the outside of the bend at that point. The video footage shows quite clearly that he was close to the inside of the first apex, but not as close as on his preferred line, taking it more tightly than the two cars in front. He agreed that he was inside their lines. He told me that he “could” have been in the middle of the road. He described Mr Wigley’s different line in the Alta as perfect but the car between them, the Kieft, took an erratic line. Their two lines do not appear very different to me. The video, aligned with the colourations on the aerial photograph, shows that he was no closer to the outside of the short straight than the centre line, before turning to the inside of the second apex. Again he was inside the line of the car in front. This is because he was trying to overtake it on the inside before the chicane. He told me that that the closer he was to the middle on the short straight, the sharper the turn for him at the second apex. The point at which he showed his car cutting the corner is also wrong. He cut it as the kerbing began and left it before it ran out; his diagrams show him either crossing the kerb half way along or near the end and leaving the verge either after the kerb ran out, or only just touching the stones.

[161]These points matter because together they mean that he did, and in fact had to, make a sharper turn at the second apex, than the conventional/preferred lines or any he drew as being what he did and intended to do, even were he to run wide on the exit. His turn had to be yet sharper still if he wished to remain on the inside for overtaking, which is what he said was his aim. Either Mr Green did not know where he was at the time, which I doubt, or his recollection of his driving is rather faulty. I do not doubt that it is.

[162]Mr Green said that the consequence of taking Woodcote Corner too fast at the entry to the first apex was a “visit” to the gravel trap, and speed itself cannot have been a factor because he had only clipped its edge, after having reached the second apex. The right turn was assisted by sliding the rear out to the left under power so as to point the front in to the right enabling a tighter faster turn. The outward slide of the rear was controlled by steering slightly to the left in to the slide, before returning to the right steer on a number of occasions during the turn, “killing the oversteer by the application of opposite lock”. Too much power would lead to too much slide for the inexperienced to correct and as with excessive speed, the car would go to the gravel trap on the outside of the bend. This is essentially Mr Munro’s response to what the defendant’s experts said about an alternative cause.

[163]Mr Green thought that he was accelerating in photograph 334, and that there was no sign of him using opposite lock or steering into the left as his rear slid out. And if he had not done so to correct any oversteer, the car rear would have swung the car away from the way it actually went. If he had been going too fast or too tight into the corner he would have steered left to lose speed. But he could not have got in to the position he did by going too fast. (ii). Mr Diffey’s evidence

[164]Mr Diffey gave evidence for Goodwood/BARC. He had written to Lord March after seeing a magazine report which suggested that the kerb cam had had some part to play in the accident. He thought that that was unjustified, and put it down to mechanical failure in the steering. I disregard what he said was being commonly said at the time about how the accident was caused.

[165]He was driving a Lotus Ford in the Chichester Trophy, and the kerb cam took footage of his front wheel approaching it and of the rear wheel running over it, as he too crossed on to the verge at Woodcote Corner. But he did so without mishap. His was a more modern and much lighter car with more sensitive suspension than the Maserati, though he had experience of racing such heavier cars. He noticed nothing out of the ordinary; it was a bumpy track, and he was looking for surface changes from the kerbing. Still photographs taken by Mr Bloxham show the kerb cam, after being hit by the Lotus, lying on the track some feet from the kerb with the cable stretched out behind it, and more cable loose on the grass as well.

[166]Just like Mr Green, he had never had a problem when crossing the kerb. The lighter Lotus was more sensitive than the Maserati to the effects of driving over kerbs. It was quicker around corners, lower and lighter, and he would expect the Lotus to corner at about 10-15 mph faster, if it and the Maserati were on the same line and manoeuvre. He would be at about 85 mph at the second apex, having accelerated from the first apex.

[167]Mr Green denied that the passage of Mr Diffey’s car over the camera could be compared because its tyre pressure was 2/3 rds or less that of the Maserati. The Lotus was a newer car and weighed half to two thirds the Maserati and other Grand Prix cars of that vintage. The Maserati also had a stiff suspension because it was designed to support a tank full of petrol weighing 205 lbs, which was less than half full for the race.

[168]When Mr Diffey went over the kerb, he had overtaken a car on the inside on the approach to Woodcote Corner, which had put him off line and he was going faster than he wished. To shorten the corner, he cut it deliberately to try to overtake another car and win. The way in which the first apex was taken would dictate where the car ended up at the second apex, but it was difficult to know exactly where the car would go; sometimes it was a matter of intuition.

[169]Using the kerb was part of his technique of driving that corner, to gain the greatest exit speed, and sometimes that also meant using the grass just on the inside of the kerb. Drivers, he said, could use kerbs, which varied in severity around the circuits, in order to take the shortest line around the corner, unsettling the car slightly to assist the car to drift around the corner.

[170]Cornering puts the grip on to the outside tyres; crossing the kerb would put the entire grip on to the outside tyres, and the inside tyres’ grip would be lessened further. The outside rear tyre grip moves out and the front points in more. If the driver does not point the front of the car round far enough in the kerb crossing, the car will understeer and end up in the gravel trap. But this destabilising of the car is a calculated risk, misjudging which can lead to a loss of control.

[171]He thought, rather shamefacedly, that driving over the kerb on to the verge was not consistent with the way in which Lord March had briefed drivers they should drive. This was seeking an unfair advantage. The racing line was always on the track. He was exceeding 9/10ths but not 10/10ths, since he had had no accident. But he was not driving in the accepted way.

[172]Mr Diffey thought that Mr Green had entered the kerb at a point a little before he had, was on a different line which ran the danger of running out of road, because the angle of approach would be too acute. He regarded Mr Green highly as a driver of historic racing cars, who had won more races than he had. (iii). Other eye witness evidence

[173]There were written statements from a number of Observers at Post 13 which commented on the speed at which they thought the Maserati was going into the bend and whether it was excessive; these were taken as read but I derived no extra assistance from them than I had from the live witnesses.

[174]Mr Greenslade, an observer at post 13, regarded himself as an expert on speed. He attributed the accident to excessive speed. It is almost always excessive speed he thought when a car leaves the circuit on the outside of a bend. 80% of the accidents he has seen at 800-900 race meetings are excessive speed. Mr Green had not lost much speed as he entered Woodcote Corner and it did not abate as he left it. He could not tell if Mr Green had got past the sharpest part of the turn, as he was 200 yards down the track. A speed into the Corner of 80-90mph was not unusual if the vehicle was on the right line and in the right place, not dicing and the driver was paying attention.

[175]Mr Nuthall, driving the next car 150 yards behind, did not think Mr Green had taken an abnormal line, nor did Mr Gallagher from his viewpoint. Mr Allnutt said he would not query Mr Green’s speed; but going over the kerb would unsettle the car, though he did not think that a kerb cam would. (iv). The accident reconstruction experts: the Defendants’ alternative

[176]As a motor sports enthusiast Mr Symes had been actively involved in the organisation of many meetings, and had come to know Mr Green quite well, as a successful and competent driver who was not prone to damaging cars. He had known of Mr Green since his schooldays. From conversations with him over the years, Mr Symes knew that Mr Green was well aware of the risks inherent in motor racing, and that racing in historic cars left the driver without some of the protection which would be available now to reduce the consequences of the accidents to which they were all prey.

[177]The alternative, however, offered by Dr Symes and Dr Searle was simply that Mr Green had been cornering too fast for the line he had taken. Mr Symes said that Mr Green was driving a little too fast as he entered Woodcote Corner and on the approach to the second apex. He was catching up the two cars in front at about 7 mph; and Mr Wigley, in the Alta (32) at the front of this group of three, was a fast driver. Mr Green tried to straighten the turn by cutting the corner, but was too fast to complete the turn successfully and came across the track, without throttling back, continuing to try to regain the track so as to continue racing, when he hit the barrier. Mr Green had thought that he could maintain control. Mr Symes deduced this from the attitude of the driver in the car, leaning to his right, and from the grass thrown up by the rear wheels near the barrier which showed that the car was still under power. He was cross-examined about this by Mr Ticciati: half way between the apices, the car was already through about 40 degrees of the 100 degree plus turn. The corner is taken as one bend. The greater radius is ahead, and as the radius tightened, Mr Green was still carrying too much speed, going faster than on the initial entry. Running wide can come from going too fast. Mr Symes rejected the notion that, if that were so, a car would go to the gravel trap earlier than Mr Green who only just clipped it, because he had seen drivers come off at the trap and at the grass. Mr Green had a small margin for error at this point and he was a little too fast to get round safely. As he was too fast on the first apex, he was compromised on the second. The Maserati was nearer to the centre line between the apices than Mr Green had shown in his drawing of his intended or actual line; 3/490A. This would tighten the radius of the second apex so that he could not go so fast and would roll off to the left. He cut the kerb to try to stay on the track at the exit from the corner.

[178]The Maserati was looking to overtake, and to do so would look to get on the inside of the car ahead so as to overtake it to its right and to the Maserati’s left, so the other car would have to yield the line through the chicane. Mr Symes had no doubts about it. This is what Mr Green and Mr Munro had said as well. He thought that this may have been because a tighter line, so as to overtake on the inside, had become more difficult. In re-examination, he thought that Mr Green’s intentions had changed once the car left the kerb. But it was not what Dr Searle had thought in the Questions and Answers and Joint Report; he had thought that the overtaking was to be on the other side, with the Maserati using the full width of the track to swing wide. Mr Symes had not said what side he thought the overtaking was to be in the Questions and Answers and Joint Report, but was then of the view that the driver was trying to use the full width of the track - whatever that might signify. He did not think that what he was saying now was the opposite of what he had said because drivers would aim to use the full width of the track, but might not do so in all the circumstances. It was in my view a very considerable change in the substance of what he said, unless those answers were to be read as not answering the questions.

[179]Mr Symes, who knew Goodwood “pretty intimately” after 40 years interest in motor sport, 25 years as a professional and 15-16 years inspecting tracks, said that cars only crossed on to the grass with two wheels “infrequently”. Although he had driven around Goodwood, he had not done so particularly quickly, but had a great deal of experience organising and observing races as well as from talking to drivers. On a race of about the length of the Goodwood Trophy, he would expect Woodcote Corner to be cut with two wheels on the grass less than 10 times in the course of 300 car laps, less than one car per lap approximately. But he had done no statistical analysis, and relied instead on his observations of driver behaviour. Dr Searle’s evidence, first in his report that crossing kerbing was commonplace and later that it was not, demonstrated that his evidence on this is secondhand and not reliable. But Mr Symes does know and did quantify it approximately. There could be an advantage to cutting slow corners but he suspected that it would not be an advantage to cut Woodcote Corner: it was a fast corner, the driver would want a smooth line, and cutting it on to the uneven grass would unnerve the car, losing time. The driver would be out of control in taking that line or deliberately seeking to gain an advantage, implicitly an unfair one. He noted the mesh and wear but there was nothing to him to indicate that the corner was cut more often than he said. Grass becomes damaged very quickly if overrun. There are also other reasons for putting mesh down than to reduce the abrasion of overrunning.

[180]Mr Symes said that when a driver corners, the centrifugal force created takes the car outwards but is restrained by the friction which keeps the outer tyres on the ground. The inside wheels on the turn carry less weight than the outside ones, they can even be in the air while the vehicle successfully completes the turn. But the reduced weight on the inside tyres, and it may be reduced to nothing, means that it is the outside wheels which are more influential in or may determine the car’s direction or behaviour. This all makes the outside wheels act as a pivot, which can cause the vehicle to overturn depending on speed and the tightness of the turn.

[181]He agreed with Mr Munro’s description of the steering system of the Maserati. The tortuous steering linkages created a considerable degree of play and flexibility, causing the front wheels to point in slightly different directions. The rear suspension was stiff, and very resistant to roll. He added that this was a very unusual layout, the flexing of the long links in which deprived the steering of the precision of more conventional systems.

[182]Dr Searle said the accident was caused by Mr Green trying too hard, pushing it to the limit, he said, under what became a friendly cross-examination from Mr Gardiner. 7 mph was a lot faster than the cars ahead. He told Mr Gardiner that Mr Green had been intending to take a tight line to overtake on the right, rather than running wide to overtake on the left. This was impossible so he had taken to the verge because he was carrying too much speed. He had been going too fast, or cornering on too tight a radius or both. Drivers follow the racing line, as shown by the darker tarmac on the aerial photograph; Mr Green was hoping to turn more abruptly at the point where control was lost. He was aiming to exit on the right hand side; he had not substantially straightened up, and coming out of a right hand bend on the right hand side was tighter than coming out on the left.

[183]Dr Searle also said in chief that he stood by what he had said in his Questions and Answers and in the Joint report; in cross-examination he had to withdraw some of his Answers as he should have done in chief. He had said, for example, in his report that it was commonplace for cars to ride up the kerb; but he illustrated this by the Bloxham photograph of Mr Diffey driving over the verge. The Answer he gave to the frequency with which verge at Woodcote Corner might be driven over was “Infrequently. Any location near the track will get occasionally overrun.” He accepted that he was not an expert on racing. In my view this is true but not good enough: that is not an adequate explanation for so casual a self-contradiction.

(v) Other views

[184]Mr Lloyd McNeill was the Goodwood Motor Sport Competitions Secretary. He had been a specialist motoring journalist before that and is now the Goodwood Motor Sport Competitions General Manager. He has had a lifelong interest in motor sport, has watched thousands of motor races and has driven in races in historic saloon cars since 2000. He also holds a Racing Instructor’s Licence. His job involves selecting the cars and motorcycles to be invited to take part in the Revival and overseeing the administration of all elements of the Event, involving the competitors. So he worked closely with the organising club, BARC. Mr McNeill regarded himself as one of the most experienced drivers on the Goodwood circuit having done perhaps thousands of laps and seen others drive many laps on it.

[185]Mr McNeill said that if a car crossed the white line with all four wheels he would be required to go to the Clerk of the Course, but if he cut it with just two wheels, he might be required to go the Clerk of the Course if he was doing it repeatedly. Such a manoeuvre could drag debris onto the circuit. Usually cutting the corner with two wheels was the result of a mistake. Some cut it deliberately, but he did not. He had done it 20-30 times, all when he was driving, because he had misjudged the approach speed, leaving himself a choice of staying in line and running wide to the outside of the bend or straightening out the curve by using the kerb. This is not something one would want to do; it is a calculated risk following a mistake. The kerb itself could be sufficient to destabilise the car. He had only been on the grass 4-5 times. Pupils cannot judge the width of the track and so he instructed them to drive to the kerb and just brush it so that they were aware of it. He did not instruct inexperienced drivers. Cutting the kerb is not something he would expect experienced drivers to do consistently, although some he agreed did cut it.

[186]Mr McNeill noticed that a car is not destabilised sideways very much when driven up the sloping edge of the kerb on to the flat grass behind it. The shallower the angle of approach to the kerbing across its face the more of a lateral push there was to the left. But when the car’s tyres ran to the top of the edge of the kerb but not over it, then the tyres tended to run round the top of the kerb pushing the car to the left, destabilising it more noticeably. This could lead to a sudden loss of control. Going up the back face of the verge was not a particularly noticeable feeling. Coming back on to the kerb from the verge created a “tripping down” sensation. The whole crossing of the kerb and back created a sense of rattles and shakes. He instructed inexperienced drivers not to touch the apex kerb because of unforeseen destabilising.

[187]Mr Felix thought the accident was all down to driver error. Mr Trouton, the MSA steward for the meeting, did not think many people cut the kerb because they were likely to lose control on the kerb if they ran over it on to the grass. The kerb had a vertical edge, unlike the kerb camera, so it was a very dangerous decision to go on to the verge by a driver; some did it deliberately, some did it because they were out of control. But if they did it deliberately they put themselves at risk because the return involves going over the vertical edge of the kerb. The grass unbalanced them and they could lose out going round the bend. Mr Trouton said that on crossing the kerb the wheels leave the ground; this is much riskier if it is done accidentally. Driving over the kerb cam could not have put the car more at risk than driving over the kerb. (vi). Knowledge of the camera

[188]I accept that none of the drivers knew of the kerb cam. Mr Green said that he did not know the camera was there, which I accept. He did not see it on his practice on the Friday nor on the warm up laps. He did not walk the track: he relied on official track inspections. Only about 30 percent of entrants walked the course. Mr Diffey was wholly unaware of the presence of the kerb cam until the Sunday when Mr Bloxham showed him his photographs. He had walked the track on Thursday, when it would not have been in place anyway, and did not see it during his practice laps on the Friday. Mr Green attended the compulsory briefings for drivers given by BARC officials on Friday and Saturday, when warnings of hazards would be given; no mention was made of cameras. Camera locations had never been mentioned at any of the hundreds of briefings he had attended, nor would he have expected them to be, nor would he have expected Sunset & Vine to brief drivers about them. I do not think that it can reasonably be said that he should have spotted the camera in view of the officials who did not notice it; it was difficult to see on the grass, whatever may be shown by high quality photographs.

[189]Mr Green accepted the hazards inherent in motor racing but he said that did not include the deliberate placing of a dangerous obstacle on the circuit where it was liable to cause his car to lose control. As Stewards inspected the track for defects, they would pick up anything loose adjacent to the Circuit. If they had seen it, they should not have passed it said Mr Green. He would have taken a marginally different line at the Corner so as to avoid it, he said, if he had first seen it during the race. He told Mr Gardiner that if he had seen the camera, he would have assumed that the officials knew about it, that it had been put there correctly and was safe and secure. He might expect a small lipstick camera but not a 1lb lump on a long flex. If he had been told of it he would have looked out for it during practice and if it had not been secured, he would have pulled out of the race. He also said that had he known of it beforehand, he would have refused to take part in the race unless it was removed.

[190]Mr Nuthall was a driver in the Goodwood Trophy, in the car behind Mr Green about 150 yards back at the time of the accident. He confirmed that no one had told any driver about the kerb cam, and he was not aware that it was there, until he saw it on the track 1m from the kerb. He thought that they should all have been told of it, but had he been told of it, it would not have prevented his participation.

[191]He had never known a camera in the ground at Goodwood. He would not have expected it to be the TV company which briefed drivers about the camera; it should have been done at the drivers’ briefing. But he would not have expected to be told of this camera if it had been correctly installed - on the ground up to 1 ½ inches proud, and secure. The difference he thought important between the camera and the kerb was that the kerb was fixed, everyone knew where it was, and knew how the car would react. Drivers did not need to be told about the presence of kerb cameras if they were properly installed as to which he would defer to Mr Symes.

[192]Mr Symes did not know of any instance in which drivers had been told of the position of a kerb cam, and did not think that it would affect the way they drove if they had done. The kerb cam could be compared to a “cowpat” or even “sleeping policeman” type of kerb, which he had not known to cause an accident ever. There would just be a ripple as the car crossed over a kerb each way. (Mr Green said “cowpat” kerbs were known to the drivers and did not move if driven over). Mr Trouton said that the driver knew the kerb was there; so if he knew that the kerb cam was there he might take a different decision. He did not think that there was an increase in the risk to drivers because they did not know of the kerb cam. The racers should be alerted to the presence of a kerb cam even if the line where it was might be disapproved. But it was not the custom at all to draw drivers’ attention to kerb cameras.

[193]Mr McNeill agreed that if a driver knew the kerb cam was there it might affect the driver’s calculations, but a driver cutting the kerb had already decided to risk bumps. Objects can be dropped from a car, i.e a tool or an exhaust silencer, and if they fell onto the track the marshal would just pick it up and put them on the side of the track. Objects of that sort were occasionally left lying around and were a risk. He would expect somebody to be alert to something deliberately put there with approval. Kerbs are always bigger than a kerb cam. Mr Trouton gave rather uncertain evidence about the impact which knowledge of the presence of the kerb cam might have on the line a driver might choose. G. Conclusions

[194]I have concluded that what probably caused the car to do what it did was a combination of its speed and the line it took through the second apex in order to overtake the car in front, and the unsettling effect of crossing back over the reverse of the kerb and down the slope. This unsettling effect was aggravated to a modest extent by the effect of the right hand side wheels hitting the kerb cam just before or at the same time as each crossed back over the kerb. The weight of the car would have been more on the left hand side wheels as it went round the right hand bend, and the unsettling effect of the car passing back over the kerb would have decreased the extent to which the right hand side wheels were still bearing the weight of the car, and maintaining its line through friction between tyre and track. The front left wheel was also toeing out which would have helped direct the car to the left. The long rods and linkages between wheels and steering wheel would have made it more difficult to control the car in the very short space of time once something had started to go seriously wrong with its direction.

[195]I have already expressed my conclusion on the line which Mr Green took into the second apex, his speed and the manoeuvre he was intending to execute. The line which the Maserati followed as it crossed the track is consistent with the Maserati being too tight at the start of the apex for the speed it was going; it pursued the line across the track to be expected from a vehicle going too fast for the line it was intending to take. It was as Mr Felix, the BARC appointed Operations Clerk or Deputy Clerk of the Course, put it a “classic under steer”. It follows, albeit running wider than it intended, the line which would have kept it in the race. The line he chose just before entering the second apex did not have the sharper turn on the outside of the bend as he preferred. He still had the sharper part to do as he entered the second apex. At that speed, the car could not stay on the right line and had to go wide. Mr Green said that were this so he would have “visited” the gravel trap earlier in the turn. But what causes a car to “visit” the trap is the speed and line around the corner. The line chosen, at the speed he was going, is entirely consistent with what he said would happen at the first apex on the normal line if a car was going too fast. He turned less at the first apex than the preferred line and left more to do at the second apex, which the car could not manage, “visiting” the edge of the gravel trap. The unsettling of the car as it crossed back over the kerb, so that its weight was on the left side wheel, sent it left rather than causing the rear to hang out and point the front in and round the corner to the right. The line may not be abnormal, viewed from a distance. But at that speed, it was too tight for the intended manoeuvre.

[196]The line was not caused by Mr Green correcting any over steer by steering to the left; there is no sign of such a movement on the steering wheel or of his shoulders and arms making such a move. The car does not react in a markedly peculiar way: it did not skid sideways, or spin with the rear going further left pointing the front further in, as might have happened if the car had over steered without correction. There is no photographic evidence of the driver being thrown about at that stage. Although the car after crossing back on to the track may not have responded to steering, this is the consequence of its speed and being unsettled. As it drove along the grass parallel to the track, as Mr Green said, it would have been able to rejoin the race and track and, but for the tyre wall curving in, control would have been regained.

[197]All drivers and experts agreed that the passage of the car up on to the kerbstones unsettles the car, even though the face rises smoothly. I give some weight to what experienced drivers say on this. That is part of the purpose of driving on the kerb, because that unsettling helps the car’s drift around the bend. The right hand side wheels are bound to be more unsettled as they first drive along an area which contains bumps anyway, as shown by the first rising and falling of the front right wheel before the camera position is reached. They then have to rise up and over the near vertical back edge of the kerbstone, which may involve a bump of up to 2 inches, or very little at all, before descending, perhaps partly in the air, over the kerb stone which is intended by itself to cause a degree of unsettling. This would have exaggerated the effect of the action of centrifugal force on the outside wheels, and the effect of the toeing out of the front left wheel. I reject Mr Ticciati’s submission that the type of kerbstone used at this corner was not intended to have a deterrent effect on drivers, unlike a “cowpat” or “sleeping policeman” kerb. There may be differences in degree of bump and hence in deterrence. But this was intended to warn drivers of their position, to deter them from continuing their line and to return to the track, and to deter them from taking a line even further over on to the grass. Mr McNeill and Mr Symes, and the racing rules make that clear. Those factors together are very much the primary causative factors.

[198]However, if the kerbstones unsettle the car, it would be illogical not to attribute some disruption to the effect of the right hand side wheels passing over the kerb cam, as I have found they did. The kerb cam is a hard object one and a half inches high. It may have been proud of the rear of the kerb with a gap between the two. The front wheel hit the camera partly to its front and side when it was flat pointing obliquely up the track. The rear wheel hit more of the side to cause the camera to be spat out over the track. If, as I accept, the vertical face of the kerb stone would have had an unsettling effect, the impact with the kerb cam would also have had some effect. But it has chamfered sides and even the front is not vertical; it is designed to be driven over, unlike the rear of the kerb. Nonetheless, none of the experts nor race organisers would have expected to see it on the track, not only because it might fly about when hit but also because it could disrupt the cars. It must have had some effect when driven over on the meshed verge, although all or part of it may have been on grass as opposed to mesh into which some of the force of the impacts of the wheels passing over it would have been absorbed.

[199]Mr Green said that he had driven over this kerb many times without accident and had not experienced the jolt which he did on this occasion, and therefore it could not have been coincidence that the one time he had an accident there was the one time there was a camera there. For that reason he regarded the camera as the sole or chief cause of the Maserati crossing the track. He pointed also to the way in which the eye witnesses had described the jolt as something different from what would be associated with crossing back over the kerb.

[200]I do not think that it was entirely coincidence that the car did what it did on this first occasion when the camera was there, but I think that it played quite a modest contributory part. I am not in a position to judge the way in which Mr Green drove on all those other occasions at Woodcote Corner or what overtaking manoeuvres if any he had been attempting there. I also note from the evidence about what happened to the camera on Friday and Saturday that other drivers crossed the verge where the camera was and hit it without mishap. They were in a variety of different cars. I would find it surprising if the only cars which ran over the verge which then hit the camera were those which caused it to be displaced on to the track. I accept Dr Searle’s evidence that its contribution would have been less than that of the kerb. This is not a case in which causation can be found on the basis that “but for” one or other factor, the car would not have crossed the track as it did. A number of factors came together. I have also considered the evidence of Mr Munro, and Mr Marriott, a camera expert for the claimant, which offers a strong opinion as to the negligence of Sunset & Vine in putting the kerb cam where it did because of the risks it created of a serious accident. But this is considerably overstated and does not alter my conclusion about which factors were important for this accident. The kerb cam was not an important factor.

[201]I find nothing surprising in the fact that an experienced, skilled, determined and highly competitive racing driver, undertaking a more risky manoeuvre to gain a competitive advantage at a particular point over someone whom he regarded as less able and who was holding him up with his perceived erratic driving, should make an error of judgement. The coincidence of the presence of the camera is no more than a minor factor in the accident. Commonsense, upon which Mr Ticciati relies, does not assist him here.

[202]Mr Ticciati submitted that, as the car would be “driven at the highest possible speed round any corner, it follows that very little will be needed to cause a loss of control”. The premise is interesting for it reflects Mr Green’s attitude and the risks run by the limits at which he chose to drive, kerb cam or not. The conclusion reflects the role of his speed, line kerb and verge. Without those, the kerb cam is no problem. With them, as Mr Munro said, the kerb cam would still create no problem which could not be coped with. But he took too uncritical a view of how Mr Green was driving.

[203]Mr Ticciati accepted that he had not pleaded that it was negligent not to bury the cable: that was because it was causally irrelevant. The camera, if there, should have been fixed through its bolt holes. However, I can see no evidence that the way in which the camera was or was not fixed, installed or tethered to the ground played any part in the line which the Maserati took or in the accident at all. The events which occurred would have occurred in precisely the same way had it been on a short tether or fixed, subject to two points. The camera might have been hit by the rear wheel in exactly the same position as it was hit by the front wheel, but any difference compared to what happened would not cause the Maserati to take the line it did across the track at all. The camera might not have been spat out on to the track depending on how immovably it had been fixed, but that movement had no causative effect on this accident.

[204]This does involve the conclusion that Mr Green’s driving was the principal cause of the accident. It was his error of judgment which led to him taking the line he did, crossing on to the verge and back again unsettling the car at the speed he did, in pursuit of his chosen manoeuvre at that very spot. He is largely to blame for his own misfortune.

[205]Although no driver knew of or had any reason to suspect the presence of he kerb cam on the inside of Woodcote Corner, I do not accept that Mr Green would have refused to race if he had known of it and if it had not been removed. I accept that he has on one occasion refused to race elsewhere when he thought weather conditions too dangerous, but the presence of a kerb cam off the track or kerbing at one point simply would not have affected his decision at all whether to race or not. Like Mr Nuthall he would still have raced. Even if the kerb cam was not secured in whatever way Mr Green thought appropriate, I am satisfied that he would still have raced. I thought his evidence on this very considerably overstated. No other driver expressed that view. None of the drivers who must have seen the kerb cam on the track when it was moved from its position on the Friday or Saturday reported it or declined to race. I shall come later to the significance or otherwise of what the Marshals saw and did, but the kerb cam was simply not seen as an impediment to racing.

[206]It is more plausible that Mr Green would have taken a marginally different line on Woodcote Corner, but I do not think in reality that it would have entered his calculations or affected the line he took. He was a very competitive racing driver, and was engaged in a deliberate overtaking manoeuvre which involved an acceptance of the risks of cutting the kerb and going on to the verge. I simply do not accept that he would have decided not to cross on to the verge. The kerb cam would not have been seen as adding significantly to risks he was otherwise prepared to run. Nor in fact did it do so. Nor do I believe that he would have so refined his line, given his speed and his objective, that the precise location of the kerb cam would have been avoided. The overtaking manoeuvre was the priority, not a small object 1½ inches high, designed to be driven over. He would have been of Mr Munro’s view that the flat kerb cam would not have added significantly to the risks; he could not have imagined the sequence of events Mr Munro hypothesised. He would also have been appraising it in the light of his view of his own abilities.

[207]I also think that part of Mr Green’s attitude to it as now expressed in court comes from the view, which he has now come to hold, that the kerb cam is solely to blame for causing the accident, and he is not to blame at all. That is not the view I hold. Mr Green’s concern was also about the possibility of a hard object weighing 1lb getting on to the track as a result of vehicle movement over it. That concern would not, in my view, have affected either his willingness to race or his willingness to drive over it.

[208]In my judgment, Mr Green also in reality recognised that his driving had played a large part in his accident, although he said he had never thought that it was his fault. He could remember saying to Mr Felix, the joint Clerk of the Course, when he was lying conscious on the tarmac that he supposed that he had come to “give him a bollocking”. He was just coming to and wanted people to know that he was not dead. I do not think any weight can be given to that reaction.

[209]There was however evidence that Mr Green had in essence made admissions through apologies that recognised that it was his fault. Lord March had visited Mr Green in hospital. Mr Green had been very apologetic for wrecking the race and damaging the reputation of the Meeting. Lord March had not seen much of Mr Green on his first visit to hospital, the day or day after the accident, and had visited him once after that. Lord March described himself as pretty upset with Mr Green because this was the third or fourth disruption which had been caused by Mr Green’s driving. He would have gone to the hospital more otherwise, but he felt the relationship was somewhat tense. Mr Green agreed he had been apologetic to Lord March, but only because he had delayed the race and had had an accident. Mr Green knew of the camera from the Bloxham photographs, on the Sunday, and had been irritated to discover that it could have caused the accident, but said nothing about it to Lord March; he just wanted to get better. I found that a surprising attitude to adopt, though what he says, if true, suggests that he was latching quickly on to an explanation to show he was not at fault.

[210]Mr Green agreed that he did not mention the camera when Lord March invited him to Goodwood House in early 2006 for lunch, although he gave advice to Lord March about how to make the Circuit safer. He assumed that Lord March did not know of the camera, so he did not tell him. Later he said that he assumed that Lord March did know. There had been no mention of fault on his part or on Goodwood’s part, or of the camera or of the Bloxham photograph 2/334, even though he had thought that he had been invited there to discuss a settlement of the claim which, in November 2005, his solicitors and the car owner’s insurers had indicated could be coming. I find it odd that he should have kept the camera up his sleeve, so to speak, if he thought it caused the accident and that a settlement was forthcoming.

[211]Lord March said that on two occasions Mr Green assured him after he left hospital, that he did not blame Goodwood in any way for what had occurred and “seemed to accept that it was his own fault for driving too aggressively and making a mistake”. Mr Green, according to Lord March, had a history of driving too aggressively at Goodwood. He had been trying an aggressive overtaking manoeuvre. This is all consistent with Mr Green’s driving history, which was why he was apologetic about his driving style. He was surprised that Mr Green had brought these proceedings because he had never received the impression from Mr Green that he thought the kerb camera had any effect on the accident at all. The lunch at Goodwood was not an effort to settle the case. He had heard that Mr Green was keen to present his views about the circuit and he thought it entirely appropriate to hear them as he often talked to drivers and officials. At the lunch they went through a lot of his points but there was nothing about cameras or his injuries.

[212]I accept Lord March’s account of what actually happened, and of the impression Mr Green gave. If Mr Green had in reality latched on to the camera as the cause only a day or so after the accident, I am very surprised he had not mentioned it at all. I cannot help but feel that, whatever role he thought the camera played, he knew his driving was at least a major cause of the accident.

[213]I have also been influenced in that conclusion by my own appraisal of Mr Green’s evidence. He was supremely confident in his own driving abilities, did not appear to tolerate in his way those he saw as less able and was a highly competitive, even ruthless driver - others spoke of his exceptional abilities, which I do not doubt, and his determination and very real competitiveness which I do not doubt either. He just went too far in this race, beyond what he could manage in his confident determination.

[214]There is other evidence which supports my appraisal of his racing outlook, which contributed to this error of driving judgment. The legitimacy of the race tactics employed by Mr Green has some relevance to how his driving judgement should be assessed. Mr Symes recognised that a driver could gain a competitive but unfair advantage by cutting corners: swinging wide on entry, sharpening the turn towards the apex, cutting the apex to straighten the turn or to allow the car to run wide on exit or both. Information which Mr Felix, BARC officials and competitors had before the competition included the final instructions and other regulations produced by Goodwood, which included the standard Circuit Regulations and prohibition on crossing the kerb. The Driving Code says that safety is of paramount importance “if your driving is deemed at any time to be of an anti social or dangerous nature, you may be black flagged by the Clerk of the Course, and may not be permitted to participate further. A dim view is taken of any collision between competitors. If you are involved in an accident that is considered to be largely your fault, you may not be invited back to compete in future at the discretion of the Clerk of the Course and, as host, the Earl of March”. Drivers’ Briefings were compulsory.

[215]The written “Final Instructions” for the Revival meeting were issued by Goodwood to all competitors. The Goodwood Standing Circuit Regulations incorporate BARC Regulations and Goodwood’s own terms and conditions. Under the heading “Black and White Diagonal Flag and Black Flag” it provides:

“Cars crossing the kerbs, crossing the delineation of the edge of the track or otherwise driving in a manner that may be considered to be not compatible with general safety, will be shown the black and white diagonal flag to advise them that their driving is being observed. Persistent offenders will be black-flagged. Such action does not preclude further penalties being applied.”

[216]Mr Symes gave his view of the racing line: the recognised line for the fastest time around the track. This was the darker line made by the tyres as seen on the aerial photograph 3/439B. MSA Rules, 15.4, as set out in the Blue Book, permitted the use of the full width of the track as bounded by white lines or a change in surface; curves could be negotiated by the drivers in any way they wished “within the limits of the track”. The kerbs stones are outside those limits. Kerbs, which only existed on corners, and marked the edge of the track, were intended to set up a vibration to warn the driver that he had marked the edge of the track, was straying from the competition course and to discourage him from doing so. Kerbs stones could be made of a variety of shapes to achieve the intended purpose: castellated in some way, at random or uniform intervals, “sleeping policemen”, “cowpat”, or just with a simple chamfer. That was what there was at Woodcote Corner. The driver would feel the kerb pushing against the car, but “tickling” the kerb was not a problem. Beyond the kerb, the driver risked a penalty, not on the first occasion because it would simply be assumed that he had made a mistake, but more than once would show that he was seeking an unfair advantage, leading to a warning black and white flag, or the black flag and an “invitation to discuss it with the Clerk of the Course”.

[217]Mr Marriott, Mr Green’s camera expert, agreed with Mr Barker that the racing line was the darker line shown on the tarmac on the aerial photograph, 3/493B. In re-examination he said that the racing line was the fastest line, but added that some drivers “take liberties” and cut the corners, and agreed that the racing line could not be the fastest way round the circuit going off the track. It was not to him a term with any precise meaning in racing parlance. His evidence on this is of no real value.

[218]In my judgment, Mr Green was not simply deliberately driving over the kerb on to the verge in order to overtake knowing the risk of destabilising the car as it crossed over and back and through the unevenness on the ground; he was also doing so to gain what the Rules make clear was an unfair advantage. He was pushing the car to the limits in order to overtake. I accept Mr Ticciati’s point that it is not of itself negligent or reckless to breach the spirit of the occasion. It is however relevant to my appraisal of how Mr Green was driving that he did so, and the manner of his driving is directly relevant to how the accident was caused. Mr Green made an error of judgment, and for a short while drove below the standards to be expected of the reasonably careful driver in the context of motor racing in historic cars on this circuit.

[219]There is one further matter I need to comment on. There was strong criticism of Mr Green’s general driving style from Mr McNeill of Goodwood and Lord March.

[220]Invitations for the meeting, said Mr McNeill, were extended to car owners who raced their own car and to high profile guest professionals, who were usually then paired off with the owner of a car. Aggressive driving after the 2002 Meeting led to formalising of the “quiet word” in a letter referred to internally as a “yellow card”. Mr Green was sent one of two yellow cards after a collision in 2004 at the Goodwood Revival. Another driver was sent the only red card ever sent. Mr Green claimed to be exonerated by in-car footage, but Mr McNeill said that the Goodwood Review Panel came to a different view, and put Mr Green “on probation”. Mr Green was not invited to drive by Goodwood but by a number of car owners. Goodwood’s concern about his previous record was assuaged by the hope that the disciplinary procedure was sufficient and would be followed, and he was not vetoed. There have been a total of six yellow cards since 2002. Mr McNeill said that a red card was proposed for Mr Green after the 2005 accident because he, Lord March and Mr Sutton felt that the accident was caused by Mr Green driving “too fast in an aggressive, monomaniacal attempt to catch and pass the cars in front”. A red card was not sent because his injuries would preclude him racing in 2006 and his injuries had made him suffer enough already.

[221]Mr Symes had also expressed the view to Lord March that a small number of drivers at Revival meetings had become over aggressive, and were driving in a manner which was not in keeping with the overall ambience of the meeting. The Revival meeting was getting the reputation of creating risks for the owners of valuable cars, and that might inhibit owners from permitting them to be raced. He thought that the “yellow and red card” system that Lord March then instituted was the result of this conversation.

[222]Mr Green agreed he had received a letter from Lord March, but so had a number of other drivers, because it was thought that he had not reacted quickly enough to a situation. The letter irritated him, but he thought that he would get a further warning letter as the “yellow card”. I accept the evidence of Lord March that this was indeed the “yellow card”. As it was an invitation race, the real sanction, Mr Green said, was not to be invited, and he had been invited to the 2005 meeting. In fact, he was nominated by the car owner rather than being the recipient of a direct invitation. Lord March could have vetoed him, and had refused to invite drivers on occasion. Mr Green accepted that there was “a little question mark” over him, but knew that these were valuable cars and he had no intention of damaging them.

[223]Although Mr Green said that he accepted Lord March’s emphasis on spectacle, entertainment, safety and keeping within limits, he said “racing drivers are racing drivers and drive as fast as they safely can.” Mr Green said that he drove within his own personal limits, and was at his own 95 per cent at Woodcote Corner. He did not regard overtaking as a 95 percent point. The limit was what kept the driver in control; over 100 per cent was an accident. But he had never lost control of his car on his own.

[224]Mr Green had been involved in 4 accidents at Goodwood in the previous 3 years, 2 involving minor damage and 2 involving major damage. None were his fault, he said, the other drivers were to blame; he was exonerated after the major accident in 2004. He had not been driving aggressively: he was overtaking on the inside but the driver in front could not have been aware of him.The Clerk of the Course had spoken to him later and said that he regarded it as a racing incident and no action was taken.

[225]It is not for me to resolve whether Mr Green or Goodwood is right about the 2004 accident. Master Rose wisely ordered that it was not to be investigated at these proceedings; one accident was quite enough. Mr Green may be right about where blame lies, but if so he has been quite unlucky in his fellow competitors or made insufficient allowance for their lesser abilities. H. Contributory negligence after the jolt

[226]One issue on which I heard a good deal of evidence and which can now be concluded is whether, in addition to the way in which Mr Green was driving before the car crossed on to the kerb, he drove negligently thereafter until the car hit the tyre wall.

[227]Mr Green was accused of driving negligently after the car had been jolted at the kerb because he had tried to continue the race which involved the use of power, rather than braking. He said that his aim was to prevent the crash in the very short space of time, just over a second, which he had. It would have taken him ½ second just to get his foot off the throttle. He said that braking and the application of power would have made steering on wet grass more difficult. I do not think that he has much of a recollection of what he actually did. It is perfectly obvious that his primary aim would have been to avoid crashing, as he said it was. Whether or not he did precisely what, if anything, could have been done to avoid the accident after that point, it was absurd of Goodwood and BARC to suggest that he contributed to the accident by his own negligence after crossing the kerb back on to the track. He was reacting to a difficult and then desperate situation in a very short space of time. In reality what he had to do to regain the track and to avoid crashing was the same in terms of steering. And how to steer on wet grass at some speed to avoid a crash less than a second away is not an issue on which others are better placed to judge. A seat belt would have broken his neck.

[228]I did not gain any assistance either from the evidence of how Mr Green may have driven after the kerb crossing as to how he may have been driving beforehand.

[229]There was a good deal of evidence about the way in which the accident was investigated. This does not bear directly on any of the issues in the case. Mr Ticciati suggested that it affected the credibility of some witnesses. To me the investigation showed a prime concern with a description of what actually happened rather than with finding the cause or apportioning blame.

[230]Each advocate’s closing submissions contained criticism of the reliability and credibility of witnesses for the opposing sides. Mr Ticciati was strong in his comments on Mr Symes and Dr Searle in particular both as to independence and balance or partiality. I do not think it necessary to set out all these various criticisms. I have considered them all in reaching my various conclusions. Some of each party’s criticisms at least are justified, and some are overstated. On the whole, but with exceptions, I have not found them of great value or significance in any conclusions. The most important aspect was excluding inexpert comments or recognising the value of experience for someone not formally an expert in a particular area. Most witnesses’ factual recollections were inaccurate and unreliable in places; I did not find that surprising. For the very large part, I did not believe I was being told deliberate untruths. Some witnesses’ evidence varied considerably from what was in their statements; some errors were readily admitted in chief, others were admitted more or less willingly in cross-examination. This affected all parties. This was more extensive than I expected. I have generally given much greater weight to the oral evidence, noting the contradictions. But the fact of those contradictions has not played a large part in my judgments. This is also applicable to the conclusions I have yet to set out.

[231]The conclusions which I have come to on the minor contributory role which the presence of the kerb cam played in destabilising the Maserati and leading to the accident, and the major role played by Mr Green’s driving, do not preclude negligence by any of the defendants also contributing causally to the accident. I turn to consider those parts of the case.

Negligence by Sunset & Vine

[232]Although Mr Docherty was employed by Sunset & Vine as a self-employed sub-contractor, and Visions was engaged by Sunset & Vine as a sub-contractor to supply outside broadcast facilities, and it in turn sub-contracted that task to Arena, no issue arises in this case about liability for the acts of self-employed or other sub-contractors. Sunset & Vine accepts liability for all their acts. In reality, all liability trails end up with a large parent company, Television Corporation plc.

[233]The claimant alleges that Sunset & Vine was negligent in installing the kerb cam where it knew or ought to have realised a racing car would run over it, in failing to install it where it did so that it was secured and could not move, and in failing to warn drivers of its presence. Sunset & Vine contended that whether the positioning of the kerb cam where and how it was installed was reasonably foreseeably a risk to drivers was a matter beyond its expertise, and it relied on Goodwood/BARC’s approval. It was up to Goodwood/BARC to brief drivers about it if they thought that necessary. Sunset & Vine followed the advice it was given.

[234]The major factual issue to be resolved first between Sunset & Vine and Goodwood/BARC and is whether the installation of the kerb cam at that location on the inside of Woodcote Corner was approved by Goodwood/BARC. If the installation was approved by Goodwood representatives, Sunset & Vine was entitled to assume that that approval had been given with the authorisation of the MSA if that were necessary, or of BARC if that were necessary as well or instead of the MSA, or given following a judgment by Goodwood that no official approvals were necessary. The MSA is the relevant licensing authority and, notwithstanding the claimant’s arguments to which I come, it would be impossible to contend that Sunset & Vine had acted negligently at all if it had obtained and complied with the terms of an MSA approval conveyed by Goodwood. The same applies to any approval given by BARC. If Goodwood alone had approved the location and installation method and the more so if it had so informed Sunset & Vine, there would be greater scope for liability to rest on Sunset & Vine in whole or part. If its installation was not approved by Goodwood/BARC, on or before the Saturday morning, Sunset & Vine may have been negligent in placing it there even if it was done in the physical manner advised by Mr Paul McNeil since his advice also was that the approval of the relevant authorities be obtained. And that is what Sunset & Vine thought it had achieved anyway. A. Approvals for cameras

[235]It was clear that neither the use, location or manner of installation of the kerb cam were ever approved by the MSA; that is because its approval was not sought by Goodwood or BARC or Sunset & Vine. This was in part because Mr Salmon of Goodwood did not open the email from Sunset & Vine in which the camera location was shown, and it was his responsibility in the Goodwood team to submit such matters to the MSA for approval where that was necessary, and he did not submit it.

[236]It was also clear that Goodwood, BARC and the MSA did not expect or require the TV companies themselves to make the requests to the MSA/BARC for approvals of camera positions. Indeed, Sunset & Vine went so far as to say that it was required not to do so by Goodwood; Goodwood does not go that far. It is not necessary to resolve that because Goodwood’s evidence was clear that it intended to deal with those matters, made that clear to Sunset & Vine, and that it did not expect Sunset & Vine to get involved, creating two different lines of communication. All agreed that the intended line of communication was from TV company to Goodwood to BARC/MSA and back down the same line. Mr Symes of the MSA said that he would not have objected to a TV company seeking advice but it would be rare.

[237]There was no negligence in my judgment on the part of Sunset & Vine in not seeking the approvals directly from BARC or MSA. It was not to know whether such approvals were required either; that was a matter for Goodwood, BARC and MSA. Some degree of judgment by Goodwood was called for as to whether an approval was necessary from BARC/MSA.

[238]It was Sunset & Vine’s primary case that Goodwood had in fact approved the kerb cam position at a meeting on 23 August 2005. It is clear that BARC did not approve the camera position before the Friday. No one asked its views, and no one told it of the camera position. The camera was not put in place by Sunset & Vine until after the BARC course inspection on Thursday afternoon. The timing of the Thursday course inspection was not notified to Sunset & Vine directly or through the programme. And the camera was then taken up for security reasons, to be put back on Friday morning. There was a secondary issue however as to whether what BARC officials saw and did or did not do on the Friday morning before practice, and again after the camera had been hit off the verge, and on the Saturday, amounted to an approval or agreement to its location before the Goodwood trophy, once it had or ought to have become aware of it. B. The meeting on 23 August 2005

[239]Sunset & Vine’s initial site visit to Goodwood in connection with the Revival meeting took place on 2 August 2005. Goodwood had already expressed interest in using a mini camera at this event somewhere. Mr Docherty discussed the kerb cam and marked “RC” on Ms Keen’s plan. Mr Spong of Visions, Ms Keen, the Production Manager, of Sunset & Vine and Ms Tinworth, the Event Planner at Goodwood, had also been there. After this initial site visit, Mr Docherty emailed to Ms Tinworth 2 camera plans which she emailed on to Mr Salmon the next day. On 3 August 2005 Mr Docherty emailed her photographs to go with the camera plans. The camera plans are not maps but descriptions of the locations where certain cameras would be placed. 12 camera locations were listed including one at Woodcote Corner, but this was not a kerb cam. Kerb cams were dealt with under the heading “additional cameras” where it said “2 x BBC “Road cameras” subject to Goodwood approval and finance”. The photographs to go with the camera plans did not show the kerb cam’s eventual position. In his email Mr Docherty asked whether Sunset & Vine needed approval to use the kerb cams. Ms Tinworth emailed back on 9 August 2005 having discussed the camera positions with Mr Salmon, asking Mr Docherty to clarify the locations of the kerb cams “in case we do need permission” – “we” clearly includes or is Goodwood for Sunset & Vine’s purposes.

[240]The exchange of emails in early August within Goodwood shows that the suggested hoist camera was approved by Lord March and Mr Widdows, Goodwood’s Marketing Director, and the email of 10 August 2005 approved the camera plan which had then been supplied, and required further precise detail about where the hoist camera would be. On 2 September 2005 Mr Salmon sent details of the request for a grid walker and a hoist to Mr Symes, together with a copy to Mr Felix, the Deputy Clerk of the Course for BARC. Mr Docherty could not remember if he heard further, but the grid walker and hoist were deployed at the Revival meeting. Mr Salmon said that Mr Symes had rung him and they talked through the issues it raised. Mr Salmon agreed that he must have spoken to Ms Tinworth and that someone must have communicated the outcome of his discussions with Mr Symes about the grid walker, the sterile areas and the hoist to Sunset & Vine. Ms Tinworth could not recollect that.

[241]Although there were intervening discussions about permission for a camera on a hoist, it was not until 18 August 2005 that Mr Docherty emailed Ms Tinworth with the proposed positions for 2 kerb cams, in case permission was required. One proposed position was eventually dropped for technical reasons, the other one was proposed at Woodcote Corner. Mr Docherty said that Mr Widdows had encouraged him to place a camera on the inside of Woodcote Corner to capture the speed of the vehicles and the atmosphere of the crown. Mr Widdows said that he had in mind something other than a kerb cam, in order to obtain this wider view of the racing and the crowds. However, Mr Docherty looked at the possibility of a kerb cam at this location and after discussions with Mr McNeil of the BBC, included a kerb cam within the final camera plan. It is not suggested that the kerb cam had been approved before the meeting of 23 August 2005. What happened there is crucial.

[242]Mr Docherty and Ms Keen were adamant that Mr Docherty had been at the meeting on 23 August 2005 at Goodwood Aerodrome. It is not disputed but that he was intended to be there. The Goodwood witnesses, who had been at the meeting said that he was not there at all, and that Ms Keen apologised for his absence, saying that he had been held up by traffic en route to the meeting. The Minutes of the meeting kept by Ms Bradley of Goodwood, such as they are, record him as apologising for absence, but also record as present someone from ITV who was certainly not there. Mr Docherty wrongly remembered someone else being there, Mr Spong, to whom the Minutes make no reference. In her witness statement, Ms Keen said that Mr Docherty and Mr Spong had attended the meeting on 23 August 2005, which was a technical meeting, one of the matters to be resolved at which was the position of the camera at Woodcote Corner. In her oral evidence she agreed that Mr Spong had not been there.

[243]An agenda was produced for the meeting of which item 2 included camera positions. It was quite a long agenda. At the bottom it noted that all those involved with TV coverage could visit the circuit to finalise details of camera positions. Ms Keen’s notes, made on her copy of the agenda, make no reference to kerb cams or to camera positions. Ms Keen said that she had a plan on which camera positions were marked which showed road cams, one of which was on the inside of Woodcote Corner. The word “Road cams” was marked in the corner of that plan. She had this on 2 August 2005.

[244]Mr Docherty produced his notes of the meeting. He had made notes in advance and marked in red what he says happened at the meeting. Against the word “Road cams” in blue, he had marked in red in figures and words “1”. There were many other technical items which were marked in blue and a few references to cameras in other respects including the “grid walker” in both blue and red. Mr Docherty also produced his diary for 23 August 2005 with the entry for this meeting marked at 11.00am as well as his mileage from London there and back. He produced the invoice for his travel expenses to that meeting, together with other expenses which Sunset & Vine had paid on 21 September 2005. The Minutes, which are clearly incomplete, but cover more than just the one marked item of integrated broadcasting do not refer to camera positions, although there is an incomplete reference to the grid walker.

[245]Mr Docherty altered a number of his statements when giving evidence in chief. He said that Ms Keen’s plan, on which camera positions had been marked and “R/C” had been put on by her including one at Woodcote Corner, had been used during the initial site visit. He added that some of the blue text on his notes of the meeting of 23 August had been made during the meeting and what he had noted in red were notes from the meeting. He said he remembered that the meeting took place on a warm day at the Goodwood Aerodrome, and there were a lot of people there. He hoped he had arrived on time. He could not recall the name of the room nor could he describe it. It was in the Aerodrome building but he had no recollection of its size or the furniture or whether it was held at a table. It began with everybody introducing themselves and their role. He could not remember if the meeting stuck to the agenda, but he asked if the camera plan was approved. Ms Tinworth had said yes; he had then asked whether that covered the hoist, the grid walker and the road camera at Woodcote Corner and she had said yes. It was not a particularly big issue because such a camera had been in use at the Festival of Speed. He felt that he did not need after that to wait for any further approval from anyone. Ms Tinworth had communicated the approval in the same way as had happened for the Festival of Speed. He had no reason to doubt her authority to do so. He was unaware from the Goodwood programme that Ms Tinworth had no position in relation to approvals; she was not a mere conduit and had given him her views on camera positions. He had no reason to suppose that Ms Tinworth, Mr Widdows and/or Ms Bradley had no expertise in the safety of road cams.

[246]He could remember some of the people there and had a recollection of Ms Bradley coming and going. He had never said that Mr Salmon was there, and he had not believed that Mr Salmon was at the 23 August 2005 meeting, although that is what the November 2007 additional claim by the First Defendant asserts. He had at one time thought that Mr Spong was there but he now was not sure. He had a vague recollection of the people but a clear recollection of the message. He had no recollection of the Duke of Richmond coming in and wanting the room after the meeting had been underway for less than an hour. He left the meeting after less than an hour when it broke up at 12.30; he had no lunch and then left. The agenda was completed but is not shown on the Minutes. Afterwards he went with two men, whose names he could not remember, to look at various cabling positions outside for the PA system and feeds for the CCTV.

[247]Ms Keen knew there had to be an approval for the kerb cam and that Goodwood would let Sunset & Vine know. Goodwood would take advice from specialists but she did not know who they would be. She was aware that Mr Symes was the arbiter of their safety at the Festival of Speed, and she assumed much the same process was taking place for the Revival meeting. She knew that the camera had not been approved initially because in the first camera plan it was not numbered. Ms Keen said the meeting was held in the Flying Club next to the cafeteria. She could not remember how it was set out and thought that all had been sitting around a table, but she could not recall. She thought Mr Widdows chaired the meeting and she was aware that he had been unwell. She could not remember apologies being given but Mr Docherty was definitely there. She thought the whole agenda had been completed. She was not aware of anyone taking Minutes, instead she was making her own notes on the agenda which she produced. Her notes made no reference to approvals for or discussion about a road cam, but were only of those things which she had to follow up. She thought that the word “road cam” at the side of her plan was put on at that meeting after the final approval was given. She was not sure how many cameras had been approved and made a note to double check. Sunset & Vine wanted only the one road cam, whereas before two had been discussed. She had already written the word down as a note to herself just to make sure that all the positions were approved. The approval had been discussed with Mr Widdows during the meeting and to the best of her knowledge Mr Widdows had given approval, although she could not remember exactly what was said. But she came away thinking that the final position was approved. Although it could have been Ms Tinworth who gave the approval, she had had most of her dealings with Mr Widdows. She did not receive a copy of any minutes.

[248]She was unable to explain how in the First Defendant’s additional claim against Goodwood, verified as true in November 2007, Sunset & Vine said that the meeting on 23 August 2005 had been attended by Mr Salmon. Her recollection was that it was more Ms Tinworth and Mr Widdows. She agreed that she was the senior official of Sunset & Vine and would have given the information, but she could not recollect talking to Mr Salmon at that meeting and had no dealings with him. She then said that he may have been there. She could not remember saying that he was not there and had no recollection of whether he was there or not. She could not explain why it was that she was now saying it was Mr Widdows who was there. She had supplied the further information, verified by a statement of truth, in January 2008 to the effect that it was Ms Tinworth who told her and Mr Docherty that the proposed position of the kerb cam at Woodcote Corner had been approved, and that it was Ms Tinworth and Mr Widdows who were primarily concerned at the meeting with camera positions. But she could no longer be sure who had approved it. She agreed that she was not suggesting that Ms Tinworth could give approval to the camera position off her own bat. She knew however that Mr Widdows was involved with this and assumed that he had taken advice. She thought that the purpose of this meeting was to finalise all sorts of matters and that they had passed on the information at that meeting that all camera positions could go ahead. She did not think she was mistaken; all of them had been approved and everyone knew where they were to be.

[249]On 23 August 2005, Mr Docherty sent an email to one of the managers at Visions saying “following meeting attached is what I hope will be the final camera plan” and that is what he emailed to Ms Tinworth an hour and a half later. He made no reference to the meeting in his email to her. He also deleted the reference to 2 cameras “subject to Goodwood approval” which had been part of the previous plan. After the meeting he had to amend the camera plan to reflect what had been said, to remove the requirement for approval which had been obtained and to be more precise about where it would be at Woodcote Corner. There had been no discussion about precisely where it would be on the inside of Woodcote Corner or how it was to be fitted and that is why he sent the photograph. They had not been very accurate about precisely where the camera would be at Woodcote Corner, and he wanted to avoid misunderstandings with the officials. Its real purpose was to show the proposed proximity of the camera to the kerb.

[250]His camera plan did not deal with how the camera was going to be fixed and there was no consultation between him and Goodwood about how that was to be done. He requested permission for one on the inside at Woodcote Corner, that had been approved, and it was installed by Visions he said in good time for inspection by the Clerk of the Course and it could have been removed if he had disapproved.

[251]Ms Keen had prepared a budget for the Revival meeting broadcast on 10 August 2005 and submitted it to Mr Widdows of Goodwood for his approval. This budget included a reference to a road cam for 2 days at £500, which Mr Widdows said he had crossed out. The revised budget was produced on 16 August 2005 because Mr Widdows had said that the first was too expensive. The final budget was produced on 1 September 2005 for a slightly greater total of £104,345.70. This showed against the word “road cams” £250, which was the cost of 1 road cam. Mr Widdows agreed in evidence that this budget was agreed and that included the road cam. The notes to this budget referred to various costs which Goodwood had agreed to pay but none directly relate to the road cam. The reference to Mr Widdows agreeing these matters was a reference to what was agreed by email or telephone according to Ms Keen. It reflected a split that had been agreed at the Festival of Speed. Mr Widdows said in evidence he was not agreeing to or approving its installation, although Goodwood agreed to pay for it.

[252]Goodwood’s evidence was rather different. Mr Salmon described the approval process. There was no documented approval procedure for camera locations, merely an historic process of liaison with the MSA. Everyone at Goodwood was very clear on the process without it being documented. He would receive requests from Mr Widdows or Ms Tinworth for items to be put in place and would then liaise with Mr Symes for guidance and approval. Goodwood was not always under an obligation to talk to the MSA but the MSA are experts and so Goodwood did in fact speak to them. He was explicit with Mr Docherty that he, Mr Salmon, would need to speak to Mr Symes about any furniture within the racing venue. Road cams would not require any Goodwood aesthetic approval, but would require Mr Symes’ approval. Mr Salmon was not under the impression that Sunset & Vine were dealing with safety, and unlike Lord March, was not confused as to the intended process. For MSA approval, Goodwood would not need to convey the detail of how the camera would be fitted, only the principle of where it would be. Sunset & Vine were then the experts on fitting and placement although it could be a safety issue, but Goodwood were not experts on that. If safety of fitting became an MSA matter, Sunset & Vine would come back to Mr Salmon for approval from the MSA.

[253]Mr Salmon said that the risk assessment by BARC is covered by the MSA Blue Book. There never had been a trackside risk assessment outside the scope of the Blue Book. He had never been asked to produce the Goodwood Risk Assessment. There was one, but he did not know if it had been submitted to Sunset & Vine.

[254]Mr Salmon had not been present at any meeting where a kerb cam had been discussed for the Revival meeting. Mr Salmon was not present at the reconnaissance at the track undertaken by Sunset & Vine on 2 August 2005, and Ms Tinworth represented him. He could not recollect any feedback to him from Ms Tinworth after it. She had the camera plans for the recce and although they crossed his desk, Mr Salmon did not read them because he was very busy. He agreed that Ms Tinworth might have discussed the content of the camera plan with him because of the content of her email to Mr Docherty of 9 August 2005 in which she said she had had the chance to discuss camera positions with Mr Salmon. This email referred to a number of changes as well and referred to a request by Goodwood to clarify the locations of road cameras “in case we need permission”. There were some minor changes involved in camera positions or types in the camera plan which were approved in the 9 August 2005 email, but Mr Salmon saw no change requiring any fresh approval from the MSA. Where there was no change in their position, Mr Salmon could speak confidently to the consent of Mr Symes. Further information on camera positions was provided on 18 August 2005 by Mr Docherty to Ms Tinworth in response to her request of 9 August 2005 for clarification as to their position, but he was unaware that more information was in fact required. She would not necessarily pass this on. Mr Salmon agreed that Mr Docherty’s camera plans were sufficiently accurate for Goodwood and there was nothing which said formally what level of detail was required.

[255]Mr Salmon accepted that it was a reasonable assumption to make that camera positions would be discussed on 23 August 2005. It was an agenda item, and always was, for the meeting at that time in relation to any televised event. Ms Tinworth attended as his representative. It would not be typical for him to brief her before this meeting and he could not remember what he would have said. He did not think he saw the Minutes until 2008 and they were not in the typical format for final Minutes of a meeting. Mr Salmon said he did not attend the meeting; his presence was not shown in the Minutes and the Event Office diary entry showed he was at another meeting. Ms Tinworth would not have approved the use of the road cam in his absence and was well aware of the boundaries to her authority and the need for MSA approval. Goodwood would not verbally approve any installation of a kerb cam without the explicit consent of the MSA and no consent had been given by the MSA because it had not been asked for or requested.

[256]After the revised camera plan was sent to Ms Tinworth on 23 August 2005 making reference to the kerb cam, she emailed it to him requesting consent. However, he did not open that email until after the Goodwood Revival and did not forward it to Mr Symes as he otherwise would have done. He did not request a consent for the kerb cam from the MSA. This was an oversight and error on his part under work pressure. He expected Mr Widdows to be aware of the request from Sunset & Vine and to “act accordingly”. He did not see the photograph of the location emailed by Mr Docherty.

[257]Sunset & Vine were given no consent from his department to install the camera and they did so regardless of his consent. During the Revival meeting he was in the joint event control room with representatives from bodies including BARC. He only became aware of its installation after the accident. At no time did Sunset & Vine indicate what type of camera would be used in these “sensitive locations”, “sensitive” because of its proximity to the track, where he thought that a camera could cause danger. The reference to installing the camera “in accordance with the recommendation set out by the MSA”, in paragraph 36 of his second witness statement, referred to a preference they had expressed orally for cable to be buried, but that had not been the subject of discussion by that stage.

[258]Mr Salmon said that if the road cam had been left undecided and had been important he would have expected a series of phone calls in order to get the MSA approval. He would not criticise Sunset & Vine for turning up with the cameras. But it was not reasonable for it to assume that approval had been given in the absence of explicit approval. He was not aware that the cameras were in the budget which had been contracted for. Mr Salmon agreed that the other cameras did not have fixing details and that Lord March was wrong about fixing details being of interest, except if the camera had been on a concrete plinth.

[259]Everything should be in place before the final stewards’ track inspection on the Friday morning. He did not know what system was in place to ensure that everything was where it should be. The installer was leaving it very late, “going to the wire”, and had left the installation very late in the morning before the course went live, but no instructions had been given by Goodwood in relation to the timing of installations which needed inspection. Goodwood were not aware that it had been installed. It should have been installed before the stewards arrived and it was reasonable to assume that as Sunset & Vine had the timetable they knew the installation should be complete before the inspection.

[260]But the Thursday timetable contained no reference to the inspection by BARC. He could not recollect those who were bringing such items of equipment on to the site within the spectator fences being told that they were to be in place for a BARC inspection at around 4.00-4.30pm. On the Thursday Venue inspection Mr Salmon would identify to BARC the MSA approved variations. No BARC trackside risk assessment could take camera locations into account if made 14 days before the cameras were installed. He agreed it would be reasonable for BARC to be told 14 days before an event if some new item could be dangerous.

[261]Ms Tinworth worked at Goodwood under Mr Salmon’s direction and had worked there for one and a half years at the time of the 2005 Revival meeting. One of her tasks was to oversee contract procurement and liaison with contractors but that did not include the TV production company. She was first asked to be involved with Sunset & Vine for the purposes of accompanying them on their track reconnaissance on 2 August 2005. They did not discuss any kerb camera position on that occasion. She said that after that meeting on 2 August 2005, she received a camera schedule which she said in her 28 November 2005 witness statement did not include a kerb camera. In fact, it did. It referred to two such cameras, subject to Goodwood approval and finance. She corrected herself in chief. Before she met the Sunset & Vine team for the reconnaissance of the track for the Revival meeting on 2 August 2005, she told Mr Salmon that she was meeting them and he spoke to her about a road camera at Lavant Corner and near the Chicane. A number of people were present for the recce to point out where the sponsorship banners might be because of their role in TV shots. Mr Ryan of Sunset & Vine took photographs of past camera locations. She was there to show them round and Mr Docherty was looking at camera angles. Mr Docherty, she thought, had said that he would consider using minicams in response to Mr Salmon’s expressed interest in an email to her. She thought she would have said permission was necessary for a road cam and expected that Mr Symes would give approval as he had done at the Festival of Speed, but she could not remember anything being said about him.

[262]She described her role as Event Planner. It was to put the Event together: the grandstands, the marquees, reporting to Mr Salmon. She had nothing to do with the motor racing side and in her early dealings with Mr Docherty over the Festival of Speed had said nothing to lead him to believe that she did have. She forwarded emails sent to her by Mr Docherty to Mr Salmon. (It is quite noticeable though that Mr Docherty used her in part as his point of contact or copied her in and she replied to him in relation to camera positions, both for the Festival of Speed and for the Revival meeting without ever saying that this was an area in which she had no dealings. She also attended the Festival of Speed TV production meeting on 2 June 2005 and the TV production meeting on 23 August 2005 for the Revival meeting. She said the system for the Festival of Speed was that she forwarded details of the road cam to Mr Salmon who liaised with MSA directly.)

[263]Ms Tinworth agreed that both Mr Docherty and Ms Keen were anxious for Goodwood’s approval for a road cam before they proceeded further. She said they knew approval would come from Mr Symes to Mr Salmon and then to her, as had happened for the Festival of Speed when she conveyed Mr Symes’ views about the road cam in her email of 16 June 2005. The communication chain for approval would be Sunset & Vine to her, to Mr Salmon, to Mr Symes, back to Mr Salmon who would, either directly or via her or possibly Mr Widdows, inform Sunset & Vine. Mr Salmon would always know if the MSA had approved a camera position. She agreed that what she had said in paragraph 25 of her second statement was wrong in suggesting that Goodwood would not need to know whether MSA had granted permission, for that would be between BARC and the MSA. Goodwood was more than a mere channel of communication.

[264]She remembered the meeting in the Flying Club members’ room on 23 August 2005. Originally it was due to be held in the Café. The room had dark leather sofas, a desk and a coffee machine. There was no table and everybody sat around in a circle on the right hand side of the room. The agendas were given out at the meeting. There was no discussion about road cams and Mr Docherty was not there. Ms Tinworth could vaguely remember asking Ms Keen where he was and thought that she had said he was stuck in traffic. He had been expected. The meeting ended abruptly after between 45 minutes and an hour, when the Duke of Richmond came in. Neither she nor Mr Widdows had given permission at the meeting for the use of a mini cam. She knew she could approve no camera positions. She remembered the meeting of 23 August as a very quick meeting. The agenda was a standard technical/production meeting agenda and she would not remember all the technical discussion. Although she was vague about what had been said by Ms Keen about Mr Docherty not being there, she was definite he was not there. Nothing was discussed at all about camera positions. The fact that camera positions were on the agenda meant nothing, as they always were on a standard agenda. She could not remember a grid walker or a hoist being discussed.

[265]She explained the email of 23 August 2005 from Mr Docherty to her attaching the updated camera plans and the photograph of its location because she thought that she had asked Mr Docherty after the 2 August 2005 meeting to clarify the position of the road cam and this was that clarification. This request was made in the email from her of 9 August 2005. However, I note the email to her dated 18 August 2005 from Mr Docherty had already said that the positions for the road cameras were at Madgwick Corner and inside the track at Woodcote Corner. She forwarded the 23 August 2005 email to Mr Salmon and Mr Sutton; to Mr Salmon, she requested his thoughts; to Mr Salmon, she said that it was for his information so that he knew where Sunset & Vine “are putting the cameras”

[266]After she received the camera plan emailed on 23 August 2005 after the meeting, which she emailed to Mr Salmon, she thought that Mr Salmon had dealt with matters directly. She said that she had not gone back to Sunset & Vine and had never consented to the installation of the kerb cam. She denied knowing that a kerb cam was to be or had been installed at the Revival meeting at Woodcote Corner.

[267]Mr Widdows was the Marketing Director for Goodwood until he became a self employed Media Consultant in June 2005. He has been involved with media activities and motor sport since 1974. His work included producing TV programmes on motor sport and he was very experienced in determining the position of cameras and was familiar with the developments in camera technology. He knew that several types of kerb cam were available but relied on a film production company to decide precisely what it needed for the purposes of carrying through its production obligations. He was responsible for the appointment of Sunset & Vine, together with Mr Sutton and Lord March. He thought that it was not until the third revision of the camera positions that Sunset & Vine quoted for the use of kerb camera at the Revival meeting. The schedule was sent to Mr Widdows, Ms Tinworth and Mr Salmon, and it was left to Mr Salmon to liaise with whoever could give approval to the schedule and to confirm it to the production company. Mr Widdows also produced a statement in which he said that he made clear to Mr Docherty, who asked for a kerb camera at Woodcote Corner to give him a different angle for filming there, that such a camera had to have the MSA approval, to be given by Mr Symes before the Event. Mr Widdows said that Mr Docherty had assured him that he would seek approval from the MSA in the usual way. For those reasons Mr Widdows had no objections to the kerb camera provided Mr Symes approved it and “all parties were informed of its location and its satisfactory installation”. He then said that Mr Docherty had not told Goodwood that he had gained approval for the camera, despite being asked to do so on several occasions, both by Mr Widdows and also by Ms Tinworth.

[268]When Mr Widdows gave oral evidence in chief, however, he said that the procedure for obtaining approval was very clear: he would talk to the Television company about how best to cover the event, the Television company would say what it proposed to do and Mr Widdows would refer the matter to the Events Manager, Mr Salmon, who would refer it on to the MSA for approval. The procedure was made clear to Sunset & Vine at the Festival of Speed and Mr Widdows believed that that procedure had been repeated to Sunset & Vine before the Revival meeting. He could not remember when or why he had prepared this second statement, in which he agreed he had been wrong to say that Sunset & Vine were to get approval.

[269]He agreed that he had been keen for a kerb cam to be considered by Sunset & Vine at the Revival meeting, to obtain new and more exciting pictures, but he had not specified the use of a kerb cam at Woodcote Corner. He had wanted a camera on the inside on the infield, which was nothing to do with a kerb cam.

[270]His task was to get a list of what Sunset & Vine wanted for Mr Salmon to place before the MSA. The major point of the pre-production meeting on 23 August 2005 was for Sunset & Vine to know exactly what was going on, on and off the track, to get the best footage out of it. They did talk about cameras but there was no approval given, because that was an MSA task. He could not remember if Mr Docherty was there. It was about planning not approvals. He was not in the approval process.

[271]He could remember the points discussed. It would have been wholly remarkable if Ms Tinworth had said that a kerb cam at Woodcote Corner was alright. He would have said she had no authority to say so. The MSA had to authorise it and Mr Salmon was not at the meeting. It would not have occurred to him to think that there had been contact with the MSA, because it was for Sunset & Vine to explain at the meeting what its intentions were. It was not a meeting at the end of which Goodwood expected to issue authorisations. The meeting was for Mr Widdows to convey to Sunset & Vine as much as possible about the Event, the flying, the drivers, the sideshows and the commentators and to receive their ideas for camera locations. He hoped that Sunset & Vine would come back with a camera plan, after digesting what had been said and considering the best way to cover the meeting. A note at the bottom of the agenda referred to camera positions to be finalised immediately after the meeting. He said there had been a lot of discussion about where they would be put. He had chaired the meeting but had not taken notes because Ms Bradley was taking the Minutes. He was interested in the whole meeting. He could not remember the hoist being discussed, but it was discussed on some occasion. He had not given approval for it. There may also have been discussion of the grid walker, but again it was not his remit to give approval. He got the camera plan by email and, he thought, the photograph with the arrow showing its location.

[272]He knew that Sunset & Vine had no experience at Goodwood when they were appointed but they would have been expected to do some research into how Goodwood Events had been covered. Goodwood would know more of the circuit but would not expect to tell them if a camera position was safe, nor vice versa, because that was for the MSA. He would not have expected Sunset & Vine to know what the racing line was at Woodcote Corner, but he would expect them to research race practice. Mr Docherty had impressed him at the Festival of Speed with the quality of his work and the way he attended to detail. After the Revival meeting had concluded Mr Widdows had emailed Mr Docherty, knowing of the incident involving Mr Green, saying that the Television programme was very good and he was very happy with the production. This was in the context of Mr Widdows asking Mr Docherty about the footage from the kerb cam and who had installed it. But his emails he agreed contained no suggestion that the road cam had not been authorised. They were not discussing who had permission to put it there; he was asking the questions he had been asked to ask. He thought Sunset & Vine had approval. It was not its task to liaise with the MSA and either Mr Widdows or Ms Tinworth could pass requests for approval on to the MSA. C. Conclusions about the meeting of 23 August 2005

[273]I accept that Mr Docherty was at the meeting on 23 August, even if he may have arrived late. Mr Docherty was an honest witness, as indeed were those who said he was not there. But I give greater weight to his positive recollection that he himself was present at a meeting than to those who have less reason to be positive about the absence of someone else. I think it more likely to be reliable. There was no other meeting at around that time with which he could have confused it. His subsequent email to Visions supports his presence. I am not surprised that some of the detail which Ms Tinworth recalled, which was probably accurate, was not remembered by him or by Ms Keen who indubitably was there. Ms Tinworth would be more familiar with the surroundings and some of the Goodwood personalities such as the Duke of Richmond. Ms Keen would have known whether Mr Docherty was there because she needed his presence for the purposes of the TV production, and, if she had known that he had not been there, she would not have approved his expenses for what is clearly attending that meeting, expenses claimed shortly afterwards. It was a meeting he was expected by both sides to attend. Both provided notes of the meeting. The draft Minutes are wholly unreliable, incomplete as they are and inaccurate as to who was present, and who apologised for absence, quite apart from the position over Mr Docherty.

[274]No approval for the kerb cam was given at that meeting, however. Ms Keen’s or Mr Docherty’s notes do not record it as such. The other approvals for grid walker and hoist were not given at that meeting, since Mr Symes’ evidence, which I accept, was that they were given by him later and that fits with Mr Salmon’s evidence. The fact that there is no record of those other approvals being given cannot by itself show that none was given for the kerb cam. However, the Goodwood representatives could not have thought that there had been an MSA approval, since Mr Salmon had not passed the request on to Mr Symes. Mr Salmon would not have told Ms Tinworth that she could pass on the fact of approval when none had been given to him in any form for the kerb cam, and the same would apply to Mr Widdows, who was not really involved in the approval process. Ms Tinworth, in my judgment, would have kept to the limits of her authority and would not have purported to grant approval for what she could not authorise, or convey what she had not been authorised to convey. I accept that Mr Widdows would have ensured that. I also found his recollection and description of the substance of the meeting more persuasive than the vague and contradictory evidence of Ms Keen and Mr Docherty – who could not agree who had actually given approval.

[275]I reject the possibility that Goodwood might have thought no MSA approval was necessary and so gave the only approval required: that is inconsistent with the parties’ experience at the Festival of Speed and with Mr Symes’ evidence that Goodwood asked for approval even when it was not really necessary. I am quite satisfied Mr Salmon intended to ask, and was honest in his embarrassed oversight. The meeting seems to have been quite informal, with no organised follow up notes; it was a friendly and co-operative meeting, looking forward to everyone’s expectations being met. I conclude that the language of the discussion was not as focussed and clear as Mr Docherty and Ms Keentook it to be. I accept that the question of a kerb cam was discussed, but I think that the discussion was rather less conclusive than Mr Docherty believes.

[276]Goodwood probably expressed its own contentment with a kerb cam at Woodcote Corner, but I am sure that it would not have conveyed, at least with the clarity which Sunset & Vine should have required as the basis for installing the kerb cam at Woodcote Corner, that no further approvals were necessary. Whatever happened at that meeting, there is no suggestion that the manner of installation was discussed let alone approved by anyone. I do not put the weight which Mr Gardiner does on Ms Tinworth’s email to Mr Sutton of 23 August 2005: it is consistent with Sunset & Vine and Goodwood sharing an aim; the language of the email to Mr Salmon asks for his thoughts, which is not consistent with approval already given, and is only 20 minutes earlier. Nothing happened between times. This reflects the difference between an update (to Mr Sutton) and a request for an answer (to Mr Salmon). I also found it strange that if the process of approval had been concluded at that meeting, that was not so said in any of the emails which he sent shortly afterwards to Ms Tinworth providing further details of the positioning of the kerb cam. Indeed, the purpose of those emails is hard to see if the location had already been approved. The email to Visions refers to what is hoped will be the final camera plan.

[277]Mr Widdows had praised Mr Docherty’s attention to detail for the Festival of Speed. Mr Gardiner submitted that would it be out of character for Mr Docherty to act without approval in relation to the kerb cam. But he acted without any confirmatory follow up paper trail or specific confirmation that the MSA had approved it. He did not find out the official inspection time, and left to chance whether it would be seen. The scope or basis for Mr Widdows’ praise was uncertain. I give it no weight.

[278]The draft contract and budget included the price for a kerb cam. It is quite an attractive point for Sunset & Vine to make that Goodwood would not have agreed to pay for something that they had not approved, and did not know would be used. Before the start of the Revival meeting, Goodwood/BARC were not opposed to the use of the kerb cam, and I believe the absence of MSA approval for it had fallen out of Goodwood’s sight, or at least was thought by some to be coming shortly. It was not seen as a source of probable controversy, and approval was intended to be sought because Goodwood tended to ask for approvals out of caution. The budget however cannot be the same as the Goodwood/BARC or MSA approval which Sunset & Vine knew was required. It was prepared before the 23 August meeting at which approval was supposedly given. It was essentially an agreement to pay for it were it used, which it would be only if it had the relevant approvals, which were expected. It cannot be evidence those approvals. After the Revival meeting, when the contract was signed, Goodwood knew that a kerb cam had been used. It did not object to its use in the absence of MSA approval, even with the benefit of hindsight after the accident. But that cannot furnish the missing approval for its installation and use.

[279]Sunset & Vine owed Mr Green the duty to act in accordance with the standard of care reasonably to be expected from a TV production company putting a camera in a location not previously approved where it was reasonably foreseeable that racing cars would overrun it. I accept that Sunset & Vine genuinely thought that Goodwood had given approval, and set about installing, using and replacing the camera in a wholly open manner. But it had received no approval at the 23 August meeting, the only occasion for an approval which it put forward. If Sunset & Vine was wrong but reasonable in its belief as to the grant of approval, Goodwood’s contrary belief was at least as reasonable, and had the additional advantage of being correct. The duty of care on Sunset & Vine to Mr Green requires the approval to exist, not to be thought reasonably to exist. I reject that contention of Mr Gardiner.

[280]The only other basis upon which it can be said that the use of the kerb cam in that location was approved by Goodwood /BARC arises from the inspections on Friday and Saturday mornings, in circumstances in which the BARC officials saw the kerb cam, and knew from the radio logs that a kerb cam was there. D.

(i) The distribution of functions up to and including Thursday

[281]The MSA, on behalf of the FIA issued a track or circuit licence to Goodwood for 3 years expiring in 2007, limited to historic cars. The necessary inspection was carried out in July 2004. Article 7 of the Licence obliged Goodwood to submit a detailed report on the accident to the MSA. Goodwood also had an international licence issued by the MSA expiring in December 2005. Both required changes to circuit features to be approved by the MSA. If the MSA standards of safety were not maintained, it had power to withdraw the licence. The event would no longer be insured and would have to close.

[282]There were two Event Permits issued on 12 September 2005 by the MSA to BARC authorising it to organise the Revival meeting, subject to conditions, one of which was similar in effect to Article 7 of the Licence. BARC was required to hold the event in accordance with the requirements of the MSA, and Mr Symes put the responsibility on BARC to ensure that the circuit was maintained in a suitable condition during the Revival meeting.

[283]At each MSA authorised meeting, the MSA appointed Steward, with two club stewards, view the venue before the start of the competition to satisfy themselves that the track is in an acceptable condition and complies with the track licence. This inspection involves driving two or three laps slowly and then walking the circuit. The Stewards inspection includes the track, kerbings, verges and all track related installations. Consideration may have to be given to making changes, and information may be sought from the venue operator about any problems. It is impossible to prevent incidents occurring. Mr Symes said that the philosophy was to minimise their consequences, and so they try to anticipate the type of incident which may occur and see if the track layout and installations are appropriate for managing that risk.

[284]Mr Symes affirmed that the location of kerb cams was not a track licensing issue but one for local resolution by liaison between TV crew and the organising officials at the time. BARC would have been familiar with this type of camera. If a marshal was unhappy with its position, he should raise it with race control.

[285]Camera locations were generally located behind the permanent spectator barriers and were of no concern to the MSA so long as they did not interfere with the view of marshals or competitors or access to the track. The use of kerb cams was long established. These cameras had become smaller and were not now so common as they were in 2005. Even if static, they were not a track licence matter but one to be dealt with by the organising club at the time. After Mr Symes had concluded his evidence, my attention was drawn by Mr Gardiner via Mr Ticciati to a further passage from the Blue Book, in the section on safety requirements at race meetings:

“2.4 The siting of all television/video cameras …shall be subject to the approval of the MSA”

. This contradicted Mr Symes.

[286]He had not been aware, and this I accept, that there was to be a kerb cam on the inside of Woodcote Corner, or indeed anywhere at the Revival meeting. No one asked his approval or told him about it. He would only expect the operator or club to consult him if it was an unusual camera or position, as was the case with the kerb cam proposed for the centre of the track at the Festival of Speed. He added in chief that he would not normally expect the TV production company to contact the MSA directly about cameras; they might do so occasionally if there were something different but contact was normally through the club or venue operator. Here, he would anticipate that it would be Goodwood, not the TV company, which would discuss such a matter with him, as it had done over the proposed new kerb cam position for the Festival of Speed in 2005. Goodwood had a habit of asking about that sort of thing more than some other venue owners, and he thought that it would have asked him about the kerb cam for the Revival meeting.

[287]Mr Symes described how approvals for camera positions had been given at the Festival of Speed held in June 2005, on the Goodwood hill climb track, not the Revival meeting circuit. His practice was to inspect the venue on the day before the competition, and to consider the location of all the TV cameras, which would all be in position in time for that inspection. In 2005 he had refused permission for a kerb cam in the centre of the course because the cars had too low a clearance, but had permitted a kerb cam to be installed at the side of the track, at the bottom of a straw bale. A car which hit the camera would have been very likely to be in contact with the barrier anyway.

[288]MSA approvals could be given in writing by email, or orally, perhaps over the telephone. A record was not necessarily kept. Both the two other camera positions which were referred to in Mr Salmon’s email of 2 September 2005 did not really require approval but were approved orally shortly afterwards. No record was kept. BARC would not necessarily be told of the camera positions before the event, but he would expect it to know by the time of the inspection on the Thursday before the meeting began. It was Mr Symes’ habit also to go down to the track on the Thursday before the event, and he would usually see the camera positions, and had occasionally asked for changes. BARC would view the circuit to satisfy itself that it was in an appropriate condition, and he would expect it to see the camera positions, having driven slowly around the circuit or walking it, taking reasonable steps to ensure that the track and surrounds were fit for racing. Its duty was to take reasonable care during the inspection to make sure that there was no hazard in the competition course area, but he would not expect a specific risk assessment for camera positions. Although they were not experts in camera positions, BARC had experience of kerb cams and could make a judgment. If the stewards were uncertain about whether something was right, he would expect them to satisfy themselves about it. He occasionally received requests for help at that stage. The kerb cam however was quite small and he could quite understand how they might miss it. He denied that BARC should have asked Goodwood for the locations of all cameras; it only had to be satisfied that everything between the barriers was satisfactory. The camera location was within the BARC area of control and responsibility. TV cameras were not specifically covered, and even at the highest levels of the sport, an organising club might not know where all the cameras were on the track side of the barriers, because they were now so small.

[289]BARC was responsible for day to day safety and the MSA steward in addition to the judicial function was there to make sure that the track licence and permit conditions were met throughout the Event. Apart from the MSA steward, the Race Director, Clerks of the Course, marshals and other officials were under the BARC umbrella. Its officials had to be qualified. Goodwood could not intervene directly but could speak to the Race Director, who was Dale Wells, the Senior Clerk of the Course.

[290]Mr Felix was the deputy Clerk of the Course for the Revival meeting and the Operations Clerk for the Goodwood Trophy. He is a very experienced motor sport official with well over 40 year’s experience. He holds licences as an International A Clerk of the Course from the MSA, he is an MSA International Steward and an FIA Steward, as well as holding many other qualifications. He is the FIA Race and Safety Director for the FIA Historic Formula 1 Championship for Historic Grand Prix Cars. He is a Director of BARC.

[291]Mr Felix attended planning meetings for the 2005 Revival meeting from January 2005. Their purpose is to examine the types of races, the number, the timetabling, the logistics of competitors and so on. The last meeting on the Monday before the event began is to set the final timetable and to ensure that logistics were in place. Filming was not discussed at these three or four planning meetings. He was not told about the filming, nor about any camera plan. He did not know which TV company would be responsible for the TV production in 2005. No kerb camera had been used before 2005, but because the event had been filmed in previous years with cameras in position approved by him and the MSA, he did not anticipate much change from year to year. He received information by copy email on 2 September 2005 about camera positions but the email made no reference to any kerb camera. No kerb cameras were in place when he made his inspection on Thursday before the event in the car with Mr Symes and Mr Salmon between 4pm and 5pm, as was not disputed.

[292]Mr Felix described the way in which BARC operated at the Revival meeting. He had been the Operations Clerk of Course at every Revival meeting and an Operations Clerk for over 30 years. There were three Clerks of the Course usually, appointed by BARC. The Senior Clerk for this Meeting was Mr Wells in race control where the radio came in, he was in charge, and his task was to receive the observers’ messages, to action anything, to deal with drivers’ discipline and to pass messages to Mr Felix or the Operations Clerk e.g. requiring them to go out and take charge of an incident. The Operations Clerk would formulate the timetable and ensure adherence to it. He was also in charge of the location where serious incidents happened, and starting races. But it would be the Senior Clerk who controlled races while they were underway. The observers would report to Mr Wells. The Administration Clerk looks after the paperwork and documentation for the other two clerks. On the Friday as Echo 2, he was only interested in radio traffic if he heard his call sign. All the radio traffic went to the race control radio operator. The Senior Clerk would hear the incoming messages over the loud speaker and if he felt action was required he could call upon the person appropriate to deal with it and then put a note of what he had done in the race log. If the Senior Clerk thought that a track safety issue arose he would ask an observer if he could solve it and if the observer needed a clerk or steward, the Senior Clerk would tell him to go out there. Stewards were not involved initially because Mr Felix himself would look but if he could not solve a point, he would then consult the stewards. There was an MSA steward and 2 BARC stewards. If there were a problem with a camera he would speak to the producer to see if it could be moved and if not, the camera would be taken away. It is the MSA steward who has the veto. This is because ultimately he has the power to remove a permit if he does not achieve what he requires. Mr Docherty never asked him for permission to put a kerb camera at Woodcote Corner.

[293]Mr Felix agreed that he had seen the email from Mr Salmon to Mr Symes which was copied to him of 2 September 2005, dealing with 2 sterile areas and 2 camera positions, the grid walker and the hoist. He would not deal with the issues in the email as it was only sent to him out of courtesy, or on the inspection before the Event and would not take it with him to the inspection either.

[294]When he arrived on the Thursday, he did not know if Mr Symes had agreed the grid walker or hoist. He agreed that an obvious question to consider during his Thursday inspection with Mr Symes and Mr Salmon was where the new camera positions would be. He said that with those other two they went and looked at all the camera positions, to see that there were no dangers. He said that no one had made him aware of the kerb cam at Woodcote Corner. He was not very concerned about a kerb cam, although he ought to have been aware of it. Goodwood should have told Mr Wells as the Senior Clerk. His greater worry was the large cameras on stilts or scaffolding behind bales or on a hoist.

[295]He agreed that it was not for Sunset & Vine to tell BARC or Mr Wells of the camera positions and he did not criticise Sunset & Vine for not telling him. The prime responsibility for telling Mr Wells started with Goodwood. Goodwood would tell the MSA, and Mr Symes would do the inspection. After the Event started, the officials from MSA and BARC are involved, but not to the exclusion of Goodwood. Once the stewards were happy with what they had seen and told him as Operations Clerk, he was happy to commence the racing.

[296]Mr Trouton has been an MSA steward since 1965 and acted as a steward for the MSA at the Revival meetings of 2002 and 2005. He has acted as a steward for the MSA at hundreds of events of all types. He was thoroughly familiar with the Goodwood circuit and the type of events. The first function of a steward was to ensure that the track and organisation complied with the MSA Licence and Event Permit and any particular regulations applicable to the event. The second obligation was to act as the judicial body in respect of driver discipline or complaints. The steward had the power to cancel a race or a race meeting, or to require changes to the circuit if necessary. He was first appointed in 2005 about three months before the Event, when BARC applied for the Event Permit. The Event Permit would usually go to the club from the MSA about 8 weeks in advance. The information he was sent by BARC was that which the competitors received and did not contain and would not contain TV camera information, but he was made aware and knew that the Event was to be televised. It was the televising of the Event which meant that an MSA and not just a club steward was necessary. He agreed the track licence would have to show everything to do with safety. Mr Trouton arrived at Goodwood on the Thursday before the Meeting and reported immediately to the Secretary and then sought out all the senior officials and introduced himself to them. He signed the track licence and permit and asked the Senior Clerk of the Course and his deputies to tell him of anything they considered to be a problem, but there were no issues raised. He was told nothing about a kerb camera being sited on the circuit.

[297]He had not seen the email from Mr Salmon to Mr Symes, copied to Mr Felix of 2 September 2005, nor did he have any discussions with Mr Symes before he arrived at the track. The camera locations were not on the track licence nor sent to him in advance. He did not think it important to know them when he was there, because most of them could be seen. He only needed to know the position of the cameras he thought would cause a problem. A kerb camera very close to the kerb would not necessarily matter because it was not on the track licence. These were very commonly used on circuits. He supposed that, in the light of experience, it was important to know the kerb camera location, but if they were not on the Track Licence, kerb cameras were not his responsibility. He had never seen cameras marked on the Track Licence and he would not look to it to find out where they were, nor were they on the Event Permit and nor would he expect to see it on that documentation. Although he checked on the Sunday to see if there were such a mention, he was only checking to see if he had missed something. He saw no safety issues arising from the kerb camera because none had arisen before. With hindsight he would now ask about kerb cameras and go to inspect. It would be very wrong to ignore the possibility that the kerb camera had been involved in the accident. (ii). Friday

[298]Keith Reddington was the Deputy Chief Observer for the Revival meeting, appointed by BARC. He is very familiar with the Goodwood circuit. He has been involved in motor sport since 1972, and has been a trained marshal for much of that time, being accredited when the scheme was introduced in the mid 1980s. The Post Observer is in charge of the Marshals at any particular Post. His task was to assist the Chief Observer.

[299]One of the tasks of the trained BARC Observers would be to check for objects, oil or debris on the track surface within their section. Their concern was with the track itself. He was not in ultimate overall charge. A kerb cam on the verge close to the kerb would not have been of particular interest. But he told me that the circuit would include the grass verge right adjacent to the track. Simply because something was on grass did not mean that it was someone else’s job to deal with it. One of the post chiefs would report that a car had gone out of control within their section; and the Observer would report that something had been hit. The radio controller would pass the message on to the Clerk of the Course, Mr Wells.

[300]He arrived very early on the Friday morning for the Observers’ briefing; this concerns safety among other matters, and any concerns which the Clerk of the Course may have. The Chief Observer, Mr Chubb, was not there on the Friday and so it was his job as the Deputy to brief the Observers. There was no mention of any kerb cam at the briefing, nor would he expect to be told of any, nor had he been told of any at any of the events where they have been in use. The Clerk of the Course said nothing about one to be mentioned at the briefing. Mr Reddington was not even aware that one had been in use at the Festival of Speed earlier that year although he was the Deputy Chief Observer there also. If he saw a kerb cam there, he would assume that it had been sanctioned. On the Friday he also had to carry out the circuit inspection on his own in the Course Car, just before the Stewards’ Inspection due at 8.30 am. The Goodwood internal timetable showed the BARC Stewards’ inspection at 8.20 am on each day. It made no reference to the two inspections. The Thursday timetable made no reference to the MSA inspection or its time.

[301]He noticed nothing unusual except that on Friday, at Woodcote Corner, someone was working on a piece of equipment on the inside of the apex. He stopped the car about 6 feet away from the man, and spoke to him without getting out of the car. He asked how long the job would take and waited until they had finished and then proceeded. There was nothing there which gave him any cause for concern. There was nothing on the track or the racing line or the kerb or which interfered with the circuit itself. He did not take particular notice of what this man was doing, although he could probably see it, because he was more concerned about how long the job would take. There might have been a conversation about a camera. He was trying to chivvy the technician. He could not remember what it was now, nor any cable above ground. He had radioed to Control to say how long the technician would be, and to say that the technician had finished. This call at 8.34 referred to the laying of TV equipment. He could not recall Mr Allnutt raising a safety query.

[302]He thought that the Steward’s car had passed him while he was waiting at Woodcote Corner, and he then left a few seconds later. There were normally two Stewards, one from the MSA, Mr Trouton, and one from BARC, whose name he could not remember. He could only presume that the Stewards could see the camera.

[303]Mr Reddington had made the call logged at 10.47 on the Friday to Control saying that someone had come out to Woodcote Corner to make adjustments to the camera, and was just getting into Mr Reddington’s car. He agreed that by this time, he must have known that there was a kerb cam on the inside of Woodcote Corner. He did not know what the adjustment was, and it could have been caused by dirt rather than contact with a car. He assumed that the Operations Clerk or Clerk of Course knew about it. As the log showed, he had gone out again at about 12.45, when a technician was reported at Woodcote Corner, intending to take him back to the paddock and, although he could not remember what the man was doing, it was nothing which caused him concern. The log referred to the kerb cam being torn out in the last practice, and given to the cameraman. Post 12 would have been passing this on to one of the Clerks, a BARC official in the Race Control room, Mr Felix, who was the Operations Clerk.

[304]He saw nothing about the camera to cause him concern the whole weekend. If he had seen a stone in the position in which the kerb cam was, he would not have moved it. Stones were often kicked up on to the track surface. He would not have allowed it to lie loose on the track, although he did know that the camera had been moved on to the track on the Friday. That did not trouble him because it would be put back to where it had been sanctioned. Marker boards got broken. Although cars cannot be restrained within the white lines, no one can tell how far off them a car will go. He tried to eliminate things which were likely to be hit. The camera was part of the race infrastructure and was not in a place where a car would normally be, and that affects the officials’ attitude towards it being there.

[305]Mr Greenslade, at post 13, noticed nothing unusual on Friday, but Woodcote Corner was not in the part of the track he had inspected.

[306]Mr Docherty said in his Witness Statement that, through the monitor screens in the production van, he had seen two Marshals, in white officials’ overalls, examining the kerb cam on the Friday morning. Mr Docherty said that he wanted the camera in position before the Marshals’ inspection and when he saw them over there, he thought that he would find out soon whether there was any problem with the cameras being there. At no stage had any official complained about it.

[307]Mr Felix also carried out an inspection in a car with the MSA Steward, Mr Trouton, and two BARC stewards. They drove around the course very slowly in a Ford Galaxy observing the circuit furniture and the condition of the track to ensure that it complied with MSA requirements and was fit for racing. In his witness statement he said that one matter addressed as they drove round, was the position of cameras and the way in which they were protected. The all appeared to be in their usual position on the outside of the track. They looked for obstructions, such as large stones on the track and kerbs, and oil and other things which would create a hazard to competition. He said that practice took place on the Friday without incident. None of them saw a kerb cam they were not looking for one and, said Mr Trouton, it was not obvious.

[308]Mr Reddington’s job in inspecting the circuit was to facilitate the Stewards’ Inspection. Mr Felix drove the car with 3 stewards in it for the safety inspection. He agreed that the road camera would have been at Woodcote Corner, there to be seen by the Stewards. The stewards were looking at the fabric of the track, kerb and run off areas adjacent to the kerb and so their areas of interest included the area where the camera in fact was. But no one saw it or mentioned it to Mr Felix. Had they done so, they would have stopped the car. The car was proceeding at between 15-20 mph. It was an open car with the hood down. He tried to take a wide angle view from the centre of the track.

[309]Mr Trouton said that the main function of the inspection was to ensure that the track itself and the kerb were properly prepared for practising and racing and that the marshals and observers were in place. On the Friday he went around the course two or three times with Mr Reddington in the Daimler Dart and on the Saturday he went round with Mr Reddington in the Galaxy he thought. He did not go with Mr Reddington to Woodcote Corner or stop there. Nor was he with Mr Reddington when on the Friday at 10.47am Mr Reddington reported in on the radio that there was a man adjusting the camera at Woodcote Corner.

[310]I have already referred to Mr Allnutt’s evidence about seeing the camera, and cable and its being moved. Mr Allnutt, had not seen the camera with the naked eye on the Friday but at about 7.30 – 8 am, and before the inspection by the Clerk of Course, their attention had been drawn to a man in a white coat at the apex doing something with a camera, and so they had walked across to see what he was doing. He thought that one of them had radioed for someone to come and have a look to see if it was alright. That does not actually appear in the radio log. But he thought Mr Reddington came out, and that is consistent with the log. The technician had gone by then. They asked Mr Reddington, or whoever came out, whether he was happy and he went back to Race Control, and they heard no more about it. If there had been another incident, they would have radioed to Race Control, so he thought that there was no further contact with the camera after 12.45.

[311]Mr Redhouse was the Flag Marshal at Post 12, remote from where Mr Allnutt was the Observer Marshal. He was just to the left hand side of the Shell building as one looks towards the track. He had not been asked by BARC to give an account of events at the time, and no one had asked for his account until the end of 2008.

[312]He said that on the Friday, he was in position as a Course Inspection car, the Daimler Dart, came round before the circuit was closed for race practice to begin. Although he had got the time wrong by about an hour as it transpired, as he accepted could be the case, there is no doubt that what he described tied in with what was recorded on the radio log at 08.34, as he agreed. He saw the car stop by the second apex of Woodcote Corner, and someone got out. It is likely because of the car and the radio log that that was Mr Reddington. This person spoke to technicians on the infield by the second apex, and did not move on until what they were doing had been completed, and they had moved to the protective barriers. He was concerned that the start of practice at 09.20 should not be delayed. He could not remember seeing any technicians there again as both they and officials wore white coats.

[313]Mr Redhouse did not see a kerb cam there at the time; he could not see what was on the infield and would only have seen it if it had been on the track itself. He did not know whether it was moved or what its position at any time had been. He only knew about the kerb cam because of what he heard Mr Allnutt shouting about it. He could not now be that sure that it was “well back”, as he had said in his Witness Statement. Camera positions were not his concern as a Flag Marshal anyway. He thought that it had all been approved, and was not aware of any activity with it on the Saturday, and never looked for it.

[314]Between races Mr Trouton was usually on the roof of a building by the Clerk of the Course’s office. Mr Trouton could remember no loudspeaker message from race control; anything which required his action would be person to person. He would not have expected to be told about the camera being torn out by a car and that would be reported to the Clerk of the Course Mr Wells or to Mr Felix. He would have gone to Woodcote Corner to look if he had been told, but it was satisfactory to him if the Clerk of the Course was dealing with it. He agreed that with hindsight either he or the Clerk of the Course ought to have gone out to look at it and in hindsight he ought to have been told about it. If the Clerk of the Course had delegated the question to a properly certified official that would be satisfactory to Mr Trouton. Mr Felix said that the message to race control at 12.45 on the Friday from post 12 about the kerb cam being torn out would have been heard over the loudspeakers in the van and Mr Wells would have heard it. He had no conversation with Mr Wells about any safety consequences. It was for the Senior Clerk, Mr Wells, to raise it if he thought there was an issue, but if Mr Wells did not raise it, then he Mr Felix would not raise it either. Mr Allnut thought there was no further contact with the camera as there were no further radio messages. (iii). Saturday

[315]On the Saturday, a Marshal came over but Mr Hanley did not know where from. He just came over to have a chat about the camera. He recalled no pressure to get the camera installed, the whole weekend was busy for him, but when he had done it, he just cycled back to the truck. He could not remember exactly what was said but it was a conversation like hundreds of others he had had about the camera. It was not an official sort of conversation about whether the camera should or should not be there. It lasted 5-10 minutes, as he was waiting for someone to get back to him on the radio. The camera was right at his feet and the Marshal was no more than 2m away.

[316]Mr Reddington carried out a circuit inspection in the Course Car before racing began just as he had on the Friday. Again he noticed nothing untoward. There was nothing obvious or remarkable to be seen. He heard over the radio in race control what is recorded in the handwritten radio log after the accident: a TV crew went on to the track without authorisation to replace the kerb cam. There was a reference to Mr Felix speaking to the TV producer, and to Post 12 looking at the camera, with an obscure reference to TV “will wish (?misspelt) to bring back.”

[317]Mr Felix with the stewards again drove around the track first thing in the morning on Saturday to ensure that there had been no change in the circuit condition. On the Saturday he did not look for anything on the inside of the track at Woodcote Corner, for there was nothing usually put there. He was not aware of the position of the kerb camera, nor had he been aware of it on the Friday. But such cameras are not unusual at race meetings. In his witness statement he said “Provided they are properly secured and not on the circuit and the cable is properly buried they do not cause me any concern. Their size is such that unless one knows of their position they are not easy to spot”. He and the stewards approved the condition of the circuit so that racing could begin on Saturday. He started the first race as Operations Clerk, together with Mr Wells, the Senior Clerk of the Course.

[318]Mr Trouton did the same on Saturday morning. He did not see the accident, but before the Goodwood Trophy was restarted he inspected the track with Mr Felix, the Clerk of the Course and in particular to see that the area in which the accident had occurred was in a satisfactory state. Of course to him, this area was the area near the tyre barrier rather than the inside of Woodcote Corner. Mr Trouton said he was not aware of the presence of the kerb camera and nobody had indicated to him that there was one, or later that day that it had had anything to do with the accident.

[319]Mr Allnutt said that the camera was back in its original position that morning. Despite what had happened to the camera on the Friday, they did not check the position of the camera; it was no longer an issue for them as they had asked on Friday whether it was acceptable. One Observer at Post 13 near the chicane saw the technician adjusting what, with hindsight was the kerb cam, close to the kerb on the inside of Woodcote Corner; he put this at about 9.30 am. He was picked up by one of the course cars. None of the observers at Post 13 were aware of the kerb cam at any stage.

[320]The radio log for Channel 6 on Saturday, after the accident and the restarted race, refers to a road camera but at Post 13 where there was in fact no such camera. At 11.23, there are clear references to the road camera at Post 12 being examined by TV crew who seemingly wished to bring it back. The fuller typed transcript stops short of that point.

[321]Mr McNeill of Goodwood was also aware of the kerb cam on the inside of Woodcote Corner because he saw footage of it broadcast on the outdoor screens. When he saw that is unknown. It was not his task to be involved in the approval process and no significance can be attached to what he realised the position to be.

[322]Mr Widdows’ role at the Revival meeting was to ensure that Sunset & Vine delivered what it had promised in terms of pictures and coverage of all the events and liaison between Sunset & Vine and Goodwood. He had a Portakabin in the TV compound and would visit the outside broadcast truck, keeping in touch with Sunset & Vine. He could not remember seeing any kerb cam footage; although he did see the outside broadcast pictures on the screens. He had assumed that Sunset & Vine had decided not to use such a camera, because neither before nor during the Event had there been any further discussion of it. (iv). Sunday

[323]Mr Bloxham said that it was when he was reviewing his photographs on Saturday evening, that he saw on 2/334 the kerb cam, visible between the rear wheels of the car. On the Sunday, at about 8.30 am, he took them to Mr Felix, the Clerk of Course. They both then showed them to Lord March. Mr Bloxham suggested to them that the camera should be moved, or removed altogether because he thought that it was dangerous. He remembered both of them responding “responsibly”, and that Mr Felix “indicated” that it would be moved which is what he thought then happened.

[324]Mr Felix said he did not learn of the presence of a kerb camera until Mr Bloxham showed him a photograph on the Sunday of Mr Green’s car and the camera. The Senior Clerk had not mentioned a problem. He asked Mr Trouton to come to race control to look at these photographs. This was just before the first race. They then inspected the kerb cam “and had no reason to object to it and do not consider that it played any part in the incident”. He did not see the mesh. The cable was dug into the ground to his approval and the camera appeared to be properly seated on the grass 12-18 inches behind the rumble strip, i.e. the kerbstones.

[325]From the safety point of view, Mr Trouton, and the two club stewards thought that there was no problem. What he saw there was no different from kerb cams he had seen worldwide. He said they had been used regularly in the A1 Grand Prix and that, if fixed, pegs would become a hazard. This kerb cam was laid exactly in the same way as the A1 GP 8ins-12ins from the kerb and off the racing line. This was the same he had seen in Adelaide and he had seen ones in Europe in historic races laid on the grass.

[326]The cable was buried underground within half a metre back from the kerb. The camera was just flat on the ground, or buried in a shallow dip. He was quite happy, though it was not secured. The decision that it was acceptable was made by the body of Stewards. He did not indicate that the camera would be moved to Mr Bloxham, nor did he recollect Lord March discussing it with him. He said the Clerks would not have reacted to what was being shown to them without looking at the camera. Mr Bloxham had showed him just the one photograph – and so they went over to look at it once the race then underway was over. He asked the Stewards to consider the camera and they decided to leave it. It would only get thrown into the air if a car went offline. He had seen this sort of camera off the racing line but in places where drivers were known to go. It would not get head height because it was on the end of its umbilical cord. This was a system he had seen used worldwide.

[327]If he had seen the cabling snaking out he would have asked for the cable to be moved back because of worry about it wrapping around the wheels or the camera being moved. He thought the camera was not proud of the track or above the edge of the kerbstones. On the Sunday when he saw it, it was about 6ins back and its height in relation to the kerb caused no anxiety because of the chamfer on the camera. The photographs were the first time he had seen the camera over the track. One possibility was excess cable though he saw no sign of that.

[328]Mr Trouton was absolutely certain that the camera was still there on the Sunday with the cable attached even though it may not have been giving pictures. It was close to but not touching the kerb; 2-3m of cable were visible leading to an uncovered trench. He had not known of the mesh till then. He did not think that the kerb camera should have been removed because it did not cause the accident even though there had not been a detailed investigation, nor would there be one during the race meeting. In checking the track for debris they did not see the kerb camera, and he would not have moved it unless he thought that it might have been involved, which he did not think until the Sunday. He had been unaware of it, though he had driven the circuit in a course car 3 or 4 times each day.

[329]Mr Docherty was firm that the camera was broken when removed on the Saturday and no kerb cam had been installed and used on the Sunday. For what it is worth, I accept the evidence of Mr Trouton and Mr Felix that they did go and see the camera on the Sunday after Mr Bloxham showed them the photographs he had taken on the Saturday. They were not available till the Sunday. I accept they saw the camera in position. Although Mr Docherty denies it was there, I think that his memory on that is fallible or he is drawing a false inference as to its physical removal from an absence of film from it. I am very sceptical about the value of the evidence of what Sunset &Vine’s footage does not contain as evidence that an event did not occur. There is no footage showing the camera being moved on Friday but it was. The absence of Sunday footage is no basis for an inference that the camera was not there. Mr Felix and Mr Trouton’s memory was sufficiently clear that this event had happened that I prefer their direct and positive evidence that it did. I do not think they were making it up, and it could not have happened on another day.

[330]Mr Trouton’s evidence showed fallibilities in recollection but he was an honest witness. I reject that he was lying. I do not find it surprising that his response to Mr Symes’ request shortly after the accident was silent about how it was installed. The focus was on the effect of the presence of the camera. I find the inconsistencies of detail with Mr Felix’s evidence inconsequential on this issue, for what that is worth. Mr Bloxham expected them to go and see the camera. They say they did.

[331]Mr Ticciati submits that their evidence that they left the camera there shows a negligent attitude towards safety in the light of what Mr Bloxham’s photographs could be interpreted as revealing about the possible contribution of the camera to the accident, or being a risk to drivers as it was hit on to the track. The former point is only relevant to showing prior negligence and to devaluing their evidence about what happened earlier. I deal with that separately, but this evidence adds nothing to the issues. The risk of it being hit on to the track, and the action taken or organised in consequence, was already in play by Saturday morning, and this evidence adds nothing to that issue either – so far as that is material to this particular case. E. Conclusions about knowledge and approval by inspection

[332]There is no evidence that Mr Symes knew of the kerb cam or that he approved it during the Revival meeting. The evidence shows that BARC, whether through Mr Wells who did not give evidence, or Mr Felix would not have had power under the Licence and Permit to approve the positioning of the kerb cam where it was. If a consent was required it was because it was a track licensing issue. The Blue Book underlines that and rather contradicts Mr Symes’ apportionment of responsibility. Mr Trouton’s evidence gave the impression that Mr Wells or Mr Felix, but not any Marshall or Observer, could approve a kerb cam in this location. If it was not a track licensing issue because no safety issue arose, BARC officials might have been able to approve it. BARC officials were in my view there to check compliance with licensing matters, and to be the first line of authority as a situation developed during a meeting.

[333]BARC, at the last, conceded knowledge of the kerb cam’s presence but more precision is required as to who knew what and may have approved it. Mr Wells, I infer from the radio log, did know of its presence on the Friday and Saturday, and did not object to it. Mr Felix did not know but said that he would not have required its removal. Mr Trouton, for the MSA, was of the same mind as Mr Felix. I do not think this can amount to an approval by BARC, or indeed the MSA. Essentially, of the senior officials only Mr Wells knew of it from the reports he received. I think it probable that he thought that the appropriate persons had already approved it and did nothing.

[334]As to the more junior BARC officials, Sunset & Vine was quite open about what it was doing. Marshals could see the camera, and asked the camera operator about it, whether just out of interest or out of concern about the delay in closing the track or because they thought it might be a risk. Others knew from the radio logs about the movement of the camera onto the track and from what the marshals had reported on. This does not amount to a belated and adventitious approval by BARC of the location of the kerb cam. Rather there was an assumption that for it to be there, it must have had approval already. To the extent that some had misgivings, they were stifled because of that not unreasonable assumption. It was never thought by Sunset & Vine or Goodwood that this was how approvals to its presence would be given.

[335]As in fact Sunset & Vine did not have the approval of the MSA or BARC, had it been appropriate, it was negligent to place the kerb cam where and how it did, even if approval would have been granted to what it did. It is plain that, however experienced Sunset & Vine, or Visions/Arena, may be in the use or installation of cameras at race tracks, the particular way in which the circuit is raced, the responses of cars to contact with cameras, and driver expectation, meant that it was negligent to install what should have been, and was seen, as a potential hazard where it might be run over, without official approval. The fact, as I accept, that Sunset & Vine genuinely thought that it had that approval cannot affect that outcome. It should have been clear and correct as to the approval.

[336]However, it does not follow that that negligence caused the accident. If it had been installed in the place and manner in which good industry practice advised, albeit unbeknownst to BARC or the MSA, and which BARC or the MSA would have approved had it known, that negligence could only cause or contribute to the accident if the authorities, accepting the place and manner of installation, would have briefed the competitors that it was there, leaving them to decide what effect that would have if any on the line they would have chosen. In dealing with good industry practice, I accept that the industry practice itself, as Mr McNeil advised Mr Docherty, is to seek the approval of the racing authorities.

[337]The claimant’s experts went further, however, suggesting that with or without official approval, the installation of the kerb cam was negligent by Sunset & Vine in location and manner. To that I now turn. F. Negligence in installation

[338]Mr Munro and Mr Marriott for the claimant expressed themselves in strong terms about the placing of this camera anywhere where it could be run over unless it was fixed into the ground and in such a way that was part of a smooth surface, embedded in kerbing or track. Mr Marriott provided examples. Mr Munro said:

“Anyone with the slightest knowledge of racing should have realised that, in its unsecured state and standing proud of the surface, it was likely to be run over with possibly catastrophic results which might include not only the results of the accident (eminently foreseeable in my opinion) but other types of damage such as the camera being flung at high speed into the face or body of a driver. Whoever put it there was negligent: it was proud of the surface, only held down by its own weight.”

[339]The significant points of difference between the camera experts were:(i) whether such a camera in close proximity to the track should be fixed: Mr Marriott thought the absence of fixing highly dangerous, and if placed that close should have been embedded into a concrete kerb, in a manner his photographs exemplified. If unfixed it should have been further back or for example at the base of a barrier. Mr Symes and Mr Livingstone thought that it was only preferable that the camera should be fixed in the sort of location in which this one was placed, so as to maintain consistency of picture, and minimising the possibility of it becoming debris on the track. Mr Livingstone would not expect it to be fixed to a soft ground surface;

(ii) whether, even if fixed in such a location as this one was, it would have been a danger: Mr Marriott thought that it would, but Mr Symes thought not, because there was no foreseeable risk of a loss of control to a car which ran over the camera. This was beyond Mr Livingstone’s expertise.

(i) Mr Marriott for the claimant

[340]Mr Marriott is an experienced TV producer with particular knowledge of motor sports programmes in which he has specialised since 1980. He has also commentated on motor races. He had a contract with Sky Television and filmed at Goodwood for 10 years. His expertise on other aspects of racing came from watching thousands of races, and from discussions over the years on techniques and skills with many drivers. He now runs a small production company which would not now be a competitor to Sunset & Vine, although he would have been a competitor up to about 5 years ago. He had known of Mr Green as one of the best drivers of historic racing cars in the world for 40 years, but he had not known him personally. He had come to the notice of the claimant’s solicitors as a possible expert witness quite by chance. He was at the 2005 Goodwood Revival meeting but did not see the accident. He had seen many accidents but never one like this.

[341]Mr Marriott regarded this camera as a general purpose camera rather than a specific kerb cam. I shall however continue to refer to it as that. He was quite dismissive of its usefulness, and would have used a different type on this sort of corner, the crucial feature of which is that he would have set it into the concrete of the kerb, and it could be fitted into the castellations of Vallalunga kerbing. (No explanation was given as how it could be fitted to the kerb at Woodcote Corner and Vallalunga kerbing did not exist at Woodcote Corner). It was pointless to place a camera in a position in which it would routinely be moved by the passage of a car. (That is not the point in the case however). He had not seen it in use before although he was aware of it, and agreed with Mr Barker in cross-examination that it was designed to be driven over, but by a road car.

[342]He expressed himself in strong language about this in his report and gave his oral evidence in the same trenchant and at times argumentative manner. He wrote that simply placing the kerb cam on the surface without any fixing was “highly dangerous since it was almost certain to be struck by a car in that position. Anyone who knows anything about motor racing would know that corners are habitually cut.” He made further comments about how obvious it was that the kerb cam could cause damage to cars and as a matter of commonsense that it could unsettle them on corners. He could envisage no “circumstances in which a television director who knew anything about motor racing would put a camera of this type in that position.” Even if fixed, it would still be a danger as it was an obstruction protruding above the surface. If he had seen it where it was before the race started, he would immediately have told the authorities; he pointed to Mr Docherty’s lack of experience in filming motor sport. He also found it impossible to understand why the kerb cam had not been spotted and removed by the marshals or during a circuit inspection and even more so after it had been hit and dislodged by the Maserati.

[343]He took strong issue with what Mr Felix of BARC had said about the routine use of a kerb cam such as this: it was not used in Formula 1 GP, GP2, A1 GP, Euro F3, the German Touring Car Championship, the Indy car races, or NASCAR’s 3 divisions, at Le Mans 24 hour and American Le Mans, Renault World Series or the Super League. Those races use a “whoosh” camera, which aptly describes the sort of picture it takes, which are specifically designed for that purpose and bolted down or cemented into kerbs. Kerb cams, or “puddlecams” as he described this type of camera, are used in the World Rally Championships, but the vehicles participating in the WRC are dissimilar to historic racing cars. They could be dislodged by a vehicle running over them or clipping them or the cable. It would be expected and was customary for the cable to be buried below ground.WRC cars were designed to run over bumps. He would not dispute the evidence about cameras at the WRC as given by Mr Livingstone who had greater experience of WRC races than he did. But rallying was not relevant. There were significant differences between WRC cars and historic racing cars: the suspension of WRC cars was altered according to the type of surface; they would be less than half as stiff as the suspension of the Maserati on asphalt because of the rough surfaces and rocks which rally cars had to cope with.

[344]He knew the camera as a piece of BBC kit, but he did not have experience of using this exact model of camera. There were however other types of camera which were safe to drive over when placed on the ground. He had never come across this type of camera being used when it was not fixed to some surface, and he doubted the evidence of Mr Felix if he meant that he had seen it unfixed in a similar location. It could be fitted in to the tarmac, although such a fitting had been refused at the Festival of Speed because of the lower ground clearance of the cars participating in that event. It had bolt holes so it was intended to be fixed. I would say that only shows that it was designed to be capable of being fixed.

[345]He agreed adamantly with Mr McNeil of the BBC that the camera should be made properly secure if it was on the racing line, but did not need to be if it was off the line, and on the grass verge. It was clear that Mr Marriott’s views were affected by what he saw as the “racing line”. This rather begged the question of where the racing line was or indeed what it was. Mr Marriott thought that the verge here was on the racing line. (He is wrong). Mr Marriott agreed that he was as not as well placed to judge the racing line as Goodwood or BARC but a view could be formed by looking at past footage. He meant by “racing line” in my view a line which cars might foreseeably and deliberately take.

[346]He agreed with Mr Gardiner that to put it 15 feet back from the track would be safe but pointless for photography. It would be dangerous near the racing line unless placed for example on the wall by the chicane. He assumed that Goodwood would decide the best way to emplace a kerb cam, and that the TV company’s safety knowledge would be the basis of its recommendation to Goodwood.

[347]Mr Marriott agreed with Mr Barker that it was sensible for Sunset & Vine to discuss the use of the camera with the BBC from which it had been hired, and asserted that TV companies should have a very good knowledge of how the cameras they used should be fixed, and if not should find out. But most cameras were not placed close to the track. He agreed with what Mr McNeil of the BBC was recorded as telling Mr Sutton, as noted in 6/1117, that the approval of the Clerk of the Course was necessary. He told me that he would have expected Sunset & Vine to show the camera to Mr Salmon, and to deal with approvals through him. He would have expected John Symes to have been consulted because of his huge experience; it would have been perfectly sensible to get his approval.

[348]A TV company should know that stewards would inspect the track but would not know when unless it asked. The stewards would usually sign the track off before the meeting started, and the camera would have to be in position before hand, because it was right on what he thought was the racing line. Cameras behind the spectator barrier would be of no concern.

[349]Mr Nuttall thought that the kerb cam had not been placed safely near the track where cars not well suited to cope with it could drive over it. His 1951 car had rubber blocks but no springs, and could easily be sent off line. The wheels were often larger, the tyres were narrow, harder, cross ply not radial and they absorbed bumps less well, so more was transmitted to the suspension. He always drove with something in reserve, but would drive over a kerb and straddle it. (ii). Mr Paul McNeil

[350]Mr McNeil, Manager of Special Cameras in the Outside Broadcasting Unit of the BBC,and doing the same job after it became part of SIS Live, had 34 years experience of working with television cameras. He had hired out the camera to Sunset & Vine. He said that kerb cams as a piece of technology were first in use in some form about 12 -15 years ago, and had become widely used following the BBC’s coverage of the World Rally Championships in 2003. He said that they were used for the twelve 3 day events of the WRC, for the A1 Grand Prix series of races, which involved single seat open cars, 10 events each over 3 days, and for about 10-15 days filming of other events each year. He was not aware of any incident where a kerb cam had caused harm, and he would have expected to be told of problems. There were not many who had as much experience as he had of their use.

[351]This particular camera was a development of the puddle cam, and could be placed on the racing line if it were put in a built up serrated or castellated kerbing surface, so that the wheel of the racing car could go over it without causing damage. But they could also be placed off the racing line immediately behind the tops of kerbs. If they were on the racing line they should be secured, and if they were on grass, they would not be on the racing line. He told me that his main reason for placing the camera off the racing line was to avoid it being moved and losing the shot. It was designed to be run over without creating problems for the car, and they were run over on the grass at the World Rally Championships without problems.

[352]He remembered speaking to Mr Docherty when the camera was hired out to him, but could not now recall all the details. The sort of essential advice which he would have passed on included that the camera, if it were on grass, should be placed off the racing line, and that safety questions should be signed off by the course authorities. The camera should be installed so that it could be approved by the Clerk of Course. Inside the safety barriers was the area in which safety was for the Clerk of Course, who would advise on what was the racing line. He would have advised that the cable be buried because it could also act as a tether for the camera and for track safety purposes.

[353]Mr Docherty asked for specific advice about placing it on the inside of Woodcote Corner, because he knew that Mr McNeil knew the track. Mr McNeil did not know the precise location proposed within Woodcote Corner, but was certain that he would have advised him to place it on the grass behind the kerb; he could not remember the details. He did not appear to be distinguishing between grass and mesh. If it had been 8-10 feet back from the kerb, it would probably not have received any worthwhile pictures. He would have strongly recommended that the camera be not attached or secured to the surface in any way, because the only realistic way of securing it on grass would have been by some kind of peg or stake which he thought, in motion, would have produced a more dangerous potential target for any car to hit. He would not secure any kerb cam which he placed there, and it was not his practice to do so in similar situations. But he agreed that, if hit, a kerb cam could go anywhere, unless secured or tethered. Cable should be laid in a shallow trench, created with the spade used as a lever, which when removed would cause the soil by itself to cover the cable, so as not to be a hazard to any car which ran off line. The cable was designed to break.

[354]Mr McNeil could not recall the conversation noted by Mr Sutton in April 2006. Most of it reflected what he would have said, but not the note that he had told Mr Sutton that he had told Mr Docherty that such cameras were always secured somehow. That was not his advice or practice. I believe Mr McNeil the more likely to know his practice and to have conveyed it both to Mr Docherty, as Mr Docherty remembered it, and to Mr Sutton. Mr McNeil was clear and fair. I am not persuaded that Mr Sutton’s training as a journalist, fair though he was, means that the note is more accurate than Mr McNeil’s knowledge and expression of his practice. (iii). Mr Docherty for Sunset & Vine

[355]Mr Docherty has had nearly 25 years experience in televising sport for all major UK television channels. He has covered many different forms of motor racing but not historic car racing. In the last decade he has directed 1500 outside broadcasts which have included entertainment events. His work has included pre-production, preparation, research, expertise and planning in multi camera outside broadcasts. Lipstick cameras have been used in various situations in these events and he knew it was necessary to secure the approval of the event organiser or venue owner and where appropriate the relevant governing body or competitor association to ensure that the cameras did not create a hazard. In this respect he would be drawing on their knowledge and expertise in relation to the venue and event. In nearly 25 years he had never been involved in a safety incident.

[356]He said that his brief was to set up the outside broadcast coverage of the racing at the two Goodwood events and to provide new ideas for camera angles and technical innovations to achieve first class coverage.

[357]He used the kerb cam for the first time at the Festival of Speed and for the second time at the Goodwood Revival. This camera, specifically designed by the BBC outdoor specialist cameras team for use in motor sport, had been used by the BBC for over 5 years, and had a 100% safety record. Goodwood insisted that they deal with all approvals and clearances with the MSA and BARC with whom they appeared to have a longstanding relationship and constant contact. He received an email from Ms Tinworth, saying that a kerb cam had been approved by Mr Symes of the MSA for the Festival of Speed, to be positioned at the side of the road only. His experience at the Festival of Speed was that the camera was placed on the grass but not bolted down, because bolts in grass could shake loose and fly out. The camera was run over occasionally without incident and was repositioned by a camera operator each time that happened. The range of cars at the Festival of Speed included but was not limited to cars of the vintage seen at the Revival meeting. Goodwood was appreciative of the work done by Mr Docherty at the Festival of Speed; Mr Widdows of Goodwood emailed him to say how they had enjoyed working with him because he appreciated the importance of detail and good planning. Indeed, after the Revival meeting Mr Widdows sent a further email on 27 September 2005 saying that the television programme made by Mr Docherty looked very good and was the best ever.

[358]Mr Docherty said that he had discussed the proposed location of the kerb cam, close to the edge of the kerb on the inside of Woodcote Corner, with Mr McNeil of the BBC, who was well placed to advise on the suitability of the camera and that location because of his own familiarity with the circuit and the event. Mr McNeil told him how to connect and install the kerb cam: to dig the cable into the ground where possible but that was not necessary; the camera should be placed “off the racing line at the edge of the track” and that it could be placed on grass but if so, bolts should not be used because vibration could cause them to fly out and create a danger on the track or damage to the cars. Mr McNeil was of the view that the camera did not need to be secured at all.

[359]Visions/Arena were responsible, he said, for all cameras and cabling in accordance with the camera plan and he had expected the camera to be installed on Thursday but that had not happened and so Mr Docherty had asked for it to be installed on the Thursday evening. Visions were familiar with the particular sort of camera and knew to contact Mr McNeil if they had any queries about it.

[360]Mr Docherty said that in preparation for the Revival meeting he had watched numerous recordings of previous Revival meetings to consider how to improve the production. He also analysed the racing lines at Woodcote Corner, to ensure that the camera was not placed on the racing line. He took the view that because the inside of the kerb at the corner was a vertical drop, it was not used by drivers as their chosen racing line. It would be similar to driving off a pavement on to a road. He knew that on occasion cars would go over the kerb and drive in the vicinity of where the road cam was placed but he took the view that the kerb cam was designed to be driven over and was therefore suitable for use in this particular location. He regarded Mr McNeil as the kerb cam expert and took and acted upon his advice as to its location and installation. Mr Docherty remembered the lip of the kerb crumbling at the rear as shown in one of Mr Bloxham’s photographs, 2/387, creating a little trench by the kerb, beyond which the grass rose up where there was less wear. He agreed that he had not used a lipstick camera as a kerb camera before in motor sport, and that although the kerb cam used at the Festival of Speed was unlikely to be run over by the cars, in fact that had happened.

[361]He did not know whether approval was a matter for BARC or MSA or for inspection on the day. Mr Docherty agreed that a mere examination of the camera plan picture would give little idea as to how the camera was to be fixed and enquiries would need to have been made by Goodwood or anyone giving approval to that.

[362]Sunset & Vine produced a risk assessment for the Revival meeting dated 22 August 2005, but there was no reference to a road cam. Sunset & Vine were experts in broadcasting sport, said Ms Keen, though she was not sure of their expertise in broadcasting motor sport, but Visions did have experience in that. She was aware that safety was important and would expect Goodwood to want a very high quality product in every sense. She did not know to whom Goodwood would refer safety issues but was waiting for Mr Widdows to tell her whether Sunset & Vine had approval for any cameras. There was no discussion with her about the person or body to whom Goodwood would refer the matter.

[363]Mr Docherty was asked about the note of a telephone conversation between Mr McNeil of the BBC and Mr Sutton of Goodwood on 3 April 2006. One of the purposes of that conversation was for Goodwood to find out what Mr McNeil had told Mr Docherty about the installation of this camera. The note said that he had briefed Mr Docherty as to how the camera was to be mounted and approved, i.e. by the clerk of the course. Mr McNeil was adamant in this note that he was always specific about the clerk of the course needing to approve the position. Mr McNeil said that the camera was often used for road racing events and was designed to fit between the castellations of kerbing and not to be proud of it. These cameras were often mounted as well immediately behind the tops of kerbs on the flat area but sitting up proud to obtain a view. According to Mr Sutton’s note they were usually bolted in position but always secured somehow. They were usually positioned off the racing line but that was not essential.

[364]Mr Docherty said that Mr McNeil had told him that the approval of the authorities was necessary although he could not remember any specific mention of the clerk of the course. Mr McNeil had not said that such cameras were usually bolted and always secured. His advice was that it was not necessary to secure them on grass and that bolts would be ill advised because they could spring out. Mr Docherty’s aim was to have the camera in position for inspection on the Friday before practice. It was installed on the Thursday in the evening in the way Mr Docherty wanted it to be and in accordance with Mr McNeil’s advice and at that time it was therefore perfectly safe. He had no reason to believe the accident had anything to do with the camera. The first camera was broken on the Friday and the second was broken on the Saturday but he did not know the cause.

[365]Mr Docherty agreed he had no expertise in car tyres, suspension or indeed in the type of cars at the Goodwood Revival meeting. He was unable to say why, if bolts might fly around, that would not apply to the camera itself. He agreed that he was not totally qualified to deal with what the racing line was, though he had looked at racing footage and had noted that cars very rarely left the tarmac to go on to the grass at Woodcote Corner, but that when they did they jumped. That led him to conclude that the verge there was off the racing line and a suitable place for a kerb cam. He agreed that in a note he sent to Ms Keen on 29 September 2005, in which he referred to the approval for the camera being obtained in August and making sure the camera was positioned safely, he had said he was surprised at how often cars left the track. He was confident enough however in the position to ask Goodwood for approval knowing that the authorities would know more than he did. No one would put it there if it would cause a risk. He was aware that the camera was being run over on the Friday not only because it was broken but because he could see that it happened on the monitors in the truck. He saw it 2-3 times on the monitor but the camera had stayed in position. The angles of approach to it on Friday that he had seen on the monitor were like the angle of Mr Diffey’s approach where the camera had initially stayed in position. He said that Mr McNeil had told him that only a kerb camera could be used on grass but it would not be buried otherwise nothing would be seen. It could not have been drilled into the kerbstone of a chamfered kerb and cemented in as Mr Marriott had suggested because of the shape of the kerbstones. He had not come across Vallalunga kerbing. (iv). Mr Livingstone for Sunset & Vine

[366]Mr Livingstone was a television cameraman, who now ran his own small business supplying camera equipment and crews to television companies. He had extensive experience in televising a variety of motor sports and other events, and in the use of the type of camera used here, supplied by the BBC. He had gained experience in the positioning of these small unmanned cameras during his years with the BBC as a camera crew supervisor. His motor sport experience included Formula 1, touring car championships and motor bike championships.

[367]He knew Stephen Docherty and had come to give evidence through him. He has also supplied cameras for the Festival of Speed and was part of the production as a cameraman at the Revival. He thought that he was independent and somewhat regretted that those facts had not been put in his report once they had been raised by Mr Ticciati in cross-examination. The problem in my view is that placing this sort of camera requires an expertise and experience in motor sport which makes it quite likely that the expert will have participated in the Revival; and if not will face the comment that he knows nothing of historic motor car racing, or not at Goodwood. Nonetheless, however independently he gave his evidence and I thought that on the whole he did, he should have mentioned those matters in his report.

[368]He offered confused evidence about the facts as to who had approved the camera, whether Goodwood or someone else as “officials”, upon which he should have offered no evidence at all. He had the weight of the camera wrong by 500 percent in his report, because he had not handled this camera type for 2 years when he wrote the report and had been supplied with inaccurate details, subsequently corrected in the Joint Report. His oral evidence showed much greater awareness of the limitations of his role and expertise. The temptation to stray into what an informed observer thought of matters beyond their true expertise, was no different from that to which many, including experts, succumbed.

[369]He used this type of camera about 6 times a year and, when hiring it from SIS Live, he would seek advice from them about its operation, how to install it, and on safety precautions, when he went to collect it. The BBC Unit had a strong emphasis on safety. It had been first used about 10 years ago. Unlike Mr Marriott, he thought that it was a very desirable camera to use for the dramatic close-ups and for the impression of speed which it gave. It was normally simply placed on the ground, and not fixed; he had not seen it emplaced in the concrete of a kerb stone, or in Vallalunga kerbing, nor at the A1GP. All of his experience of it had been in rallying.

[370]The camera could only be placed on the track where the wheels would drive over or straddle it if the ground were soft enough for the cable to be buried to the track edge. If the surface were tarmac, the camera could not be placed there, as there was nowhere to dig in the cable.

[371]If the BBC had given him explicit advice about how to mount the camera, he would have taken it very seriously, and depending on how forceful the advice had been he would have taken it further. The reason it would not be fixed, when placed on soft ground, was not that the ground would give under the weight of the passing wheel but that there was a danger of the fixing stake coming out under the impact of the wheel and movement of the camera. On concrete or hard ground it would be fixed so that the camera could be closer to the wheels, and also so that it would not cause a danger. Greater caution was required about how close it was put on soft ground, unfixed, because the danger of it moving about was the same whether the ground was hard or soft. For these purposes the mesh counted as soft ground because of the difficulty in fixing the camera on to it, and so there had to be a greater margin from the passage of the cars. He would still be comfortable placing the camera there on the advice of those who knew the circuit best, and would expect the position to be adjusted to reflect safety and the production needs. He had estimated that it was only infrequently that cars cut the corner here on to the verge itself.

[372]Mr Livingstone explained his experience with the camera on the WRC, during which cars had run over them on a number of occasions without harmful incident, even when the camera had been spun in the air. Mr Livingstone pointed out that in the WRC there were gaps of 2-3 minutes between the passage of the cars which would allow for what had been flung out by one to return to ground, and to be repositioned before the next car passed by, something which was not possible in a race with cars close to each other or in groups followed by only small gaps. He also agreed that the WRC cars in fact all followed very much the same line so that it was easy to predict whether a camera would be hit since the line taken by one car would be almost exactly the same as taken by another. If the camera were positioned at the apex of a bend in a WRC race, it would be much closer to the racing line than on the verge at Woodcote Corner. Vehicles would generally drive over the camera about 10 times in the course of a three day WRC event, without incident. He had used the camera for 60 WRC events without any competitor complaint.

[373]The cable was designed to be a weak point which would break with minimum force applied on impact, to prevent a lot of cable going loose, wrapping itself around an axle; the breaking of the cable would require force which would decelerate the movement of the camera. However, he had seen the camera flying through the air. Very infrequently it reached the height of a car roof but if the camera broke from the cable because a vehicle passed over it, the camera could reach head height. However, although he had seen damage to the camera, he had seen no damage to people or cars. It was foreseeable that even if the camera were tethered it could end up on the track. Normally it would move a couple of feet. But drivers of WRC cars were enclosed, not in open cockpits, and had solid wheels, not spokes. It was obviously preferable were it fixed, and not by the cable, and if it could not be placed safely, it should not be emplaced at all. But it had a 100 percent safety record and it had never been the hazard in fact which it could be. He could not say how proximate the camera had always been to the wheels but there were similarities. It was not ideal were the camera dislodged to the wrong position but it was not a danger.

[374]In my view, the cable did not part easily from the camera itself; a clamp held it in place in addition to the wire terminals inside the camera. None of the photographs showed the cable broken away from the camera at that point and it remains unclear whether when the camera came apart from the cable it did so there or further back with the cable itself being severed.

[375]Mr Marriott did not doubt that Mr Livingstone had the greater experience of WRC events but thought it irrelevant to the Revival meeting. Mr Livingstone agreed that Mr Marriott knew more of the type of car being driven by Mr Green, and more of television production at the Goodwood track. Mr Marriott pointed to the differences in the car tyres and suspension, and in particular the expectation that they could drive over bumps and debris unexpectedly, unlike the tarmac of the Goodwood course from which it was expected that debris and stones would be cleared. Mr Livingstone however said that WRC cars varied from hard to softer suspensions depending on the surface for the event; the suspension ranged from the exotic to the near standard road car. Although historic racing cars were different from rally cars, as the joint experts’ statement said there were general dynamic similarities. He was not an expert on suspension, but regarded himself as an expert observer, from watching the way in which cars reacted going over or near to the camera, and watching how historic cars react.

[376]Mr Livingstone was firmly of the view that it was for the officials to approve the use or position of the camera from the safety point of view, and he expected them to look at it from that point of view. The TV company had to submit the position to the “organising officials” for their approval. He would still be comfortable placing the camera there on the advice of those who knew the circuit best, and would expect the position to be adjusted to reflect safety and the production needs. However, he added that it would have been incorrect to stake or fix the camera to the grass, that placing it on the grass was correct, that it was not in a place where cars would normally run over it and that were they to do so it would not affect them “in any meaningful way”. This was because of the suspension and the flexibility in the tyres. The WRC car suspensions were a little stiffer. He agreed that in the Joint Report, he had said that he could express no opinion on whether overrunning the camera could cause a loss of vehicle control, despite what he had said in his report, but when giving his oral evidence he had in reality expressed such a view. He said that he felt more confident now in offering an opinion. He had “no problem endorsing the proposed position of the camera for approval by the relevant authorities”.

[377]If the camera had been struck on the Friday, as it was, his reaction would have been to seek advice using the previously established chain of command; he would expect BARC to seek the views of those marshals who were nearest to the spot. As it was being clipped, he would have talked to the marshals about the line which cars followed and put it about 3-4 feet from there so that it was not hit. When filming the WRC, he would tend to put the camera close to the line which drivers followed, but not where the camera would be hit by drivers following the normal line. His approach would be to choose the best and safest spot as he saw it, but defer to the local experts. It was counter-productive for the TV producer to have the camera where it would be hit because it would require repositioning; the competitor had a parallel interest.

(v) Mr Felix & BARC

[378]Mr Felix said that, off the track and in the run off areas, stones of the size of the road cam could be found and he would do nothing about them, except if they were on the tarmac or kerbstones. He would not expect vehicles on the grass because it was off the driver’s line. He would not bother with anything on the grass side of the kerbs, although people drove on to the grass and did not expect stones to be there. He had never had a stone problem with a driver. If the wheel went over a stone on the grass it would compress it into the grass and not throw it out. The mesh would not cause it to spit the camera out because it was attached by what he called its umbilical cord.

[379]He agreed that for the camera to be in the road as was shown to have happened in some of the photographs, was unacceptable, and there would be an instant flag signal, although that would not warn those who were immediately behind the vehicle whose action caused the stone or camera to be thrown out. Although he had said that such cameras were not of any concern provided they were “properly secured”, subsequently he had learned that they did not have to be secured. The camera here was secured by its cable. He had never seen the cable severed. All he meant by “properly secured” anyway was that it be put in a shallow scrape but he agreed that that did not guarantee that it would not move, but then nor did bolting it down. He had seen them exactly like this on the grass. He agreed that the corner was cut sufficiently frequently for kerb cutting to be part of the safety considerations. He said wrongly that the camera was a further 6-8ins back from the kerb; on some photographs he agreed the camera appeared to be hard up against the kerb and in its intended position. (vi). Mr Trouton, MSA Steward

[380]Mr Trouton said if he had been told there was a kerb camera he would have gone out of his way to look at it, but it was not his task to try to find out why the accident happened. He would fulfil his part of the safety requirement by ensuring that the marshals were in place and debris was off the track. He did not know who had removed it from the track after the accident. The first responsibility was medical care after an accident and the preparation of the circuit for races. If he had been told that the kerb cam had been on the track he would have checked that it had been put back where it had been and the race would have continued. If it had got on to the track it would have been yellow-flagged because it would be potentially dangerous. He agreed that it would be very difficult to say where a kerb cam would end up if hit. It would be liable to be moved on to the track if the driver decided to use the verge or if he were already in difficulties. He would not wish to disagree with Mr Felix, a very experienced Clerk of the Course.

[381]They both felt on the Sunday that it was satisfactory, although it was not secured. They had gone to see if it might be relevant to the accident. Many drivers had driven on the grass without problem and the kerb camera had been driven over a lot. Driving over the kerb cam was just as safe as driving over the kerb and back. The exit from the kerb can unbalance a car leading to a loss of control quite often. Mr Trouton then said driving accidentally over the kerb is much riskier than if deliberate, because the driver knew the kerb was there; so if he knew that the kerb cam was there, he might take a different decision. He also said that he did not think that there was an increase in the risk to drivers because they did not know of the kerb cam. The racers should be alerted to the presence of a kerb cam, even though the line required to drive over it was disapproved of. But it was not the custom at all to draw drivers’ attention to kerb cameras. They paid no attention to the cable over the ground. They did not see the cable as a hazard or potential hazard then. Looking back it was not satisfactory, but at the time it was because both he and Mr Felix thought it was not a large camera and would be no more dangerous to hit with two wheels than the back of the kerb. (vii). Mr Symes

[382]Mr Symes not merely disagreed with the evidence of Mr Munro and Mr Marriott about how safe it would have been to install the kerb cam where it was installed, he was positive that, had he been asked for his approval to the installation of this kerb cam on the inside of Woodcote Corner, were it was in fact placed, he would have approved it.

[383]He agreed that his declaration as an independent expert witness without an interest in the case could only apply only so far as he personally was concerned: the MSA had an interest because it arranged the insurance, granted the track licence and event permit, had BARC as an affiliated club, he had many but not all of the dealings with Goodwood on behalf of the MSA, and he and the MSA had an ongoing professional relationship with BARC and Goodwood. Mr Symes anticipated in his report that “any fixed camera ... [including a kerb cam] …will be appropriately secured” to ensure that the camera delivered the required picture and to minimise the chances of equipment damage and flying debris, which he said included the camera itself. This appeared to assume that a kerb cam would be fixed somehow, and secured in its fixed location, partly so as to minimise the chances of it flying about. These cameras were of robust construction precisely because they might be run over. This sort of camera was an accepted part of filming at motor races.

[384]Mr Symes said in his Witness Statement that had he known that such a camera was to be placed where it was at Woodcote Corner, he would not have been concerned since such cameras at such locations “are commonplace and history has demonstrated the presence of such equipment does not create a hazard.” He added in chief that, in that position, cars would not run over it as a matter of course, it was designed to be run over, and he would not anticipate a problem even for historic cars. This sort of camera would not be fixed where the surface did not permit a satisfactory fixing, and would be laid loose; he had seen them loose on snow. But with a reasonably firm surface, fixing was “a good idea”, and that would preserve the shot. It was normally fixed on concrete. Goodwood would not have had to ask him about how it should be installed.

[385]It was not a hazard if not fixed, because the cabling would limit the extent of movement. Hitting the camera would not always break the cable, but if it did, that would take some of the energy out of the camera and restrict it, although it could get on to the track as debris, as he had seen happen. He would be very surprised if it could get head height, and would expect it to rise no more than 30-50 cm above track surface, and he had never seen an object like it higher than that over the track itself. He was not aware either of that ever having happened, although on a loose surface, a high degree of wheel spin might eject it with more force. He had never seen any sign of injury or danger from such a camera.

[386]Cable was normally buried in a slit trench; if there were mesh, cable was sufficiently buried if it came up at the back of the mesh away from the kerb, about 30 cm or a foot from the camera’s position so that the camera could be moved a little. (The mesh panels here were about 30 cm wide.) In re-examination, Mr Symes spoke of 60 cm as being towards the limit of acceptability. He preferred 15 cm, and would expect a maximum radius of movement of 20cm. He might have discussed fixing it in view of the compacted aggregate under the mesh; a “U” shaped stake could have fixed it without problem. The longer the loose cable the greater the chance of the camera flying about, especially after it became detached, but he thought that there was no appreciable risk to anyone from an unfixed camera, even on the track and even if struck a number of times. Such a camera could not cause an appreciable loss of vehicle control and if it became track debris it would not gain an appreciable height. Marshals would remove it under cover of a yellow flag.

[387]I asked him why he would therefore not allow a kerb cam to be placed loose on the track: he said that it would unnerve but not significantly destabilise the car but could be a disadvantage to those who hit it. It would not be a direct hazard, but it was a potential hazard to cars” because it could give an input to them”. It would not cause an incident but it would be undesirable. The likelihood of it being hit was relevant, and minimising cable minimised the hazard. Digging in the cable with soil on top added to the tethering effect; he did not know the effect of loose soil however. If a BARC official saw that it became dislodged, the official would see if that was acceptable and if it went on to the track, he should consider moving it. The camera would not be properly installed if it was likely to be dislodged on to the track. He would not have regarded what happened on the Friday as likely to happen. It would be reasonable for BARC officials to draw on that experience.

[388]Mr Symes agreed with Mr Marriott that it was surprising that the kerb cam was not fixed if only because that would have been in the TV producer’s interest, as well as minimising the risk of flying debris: the camera should have been adequately secured. But he was surprised that Mr Marriott thought it such a strange place to put the camera, as he had seen cameras at or in the general area of an apex. He knew more about safety than Mr Marriott but less about how to film a race; he did not know who knew more about the nuts and bolts of fixing a camera in position. Mr Symes told Mr Ticciati that” Appropriately secured” in his report included not being fixed permanently but tethered by the buried cable to limit its movement. It would not go far. His surprise, shared with Mr Marriott, that it had not been fixed related to the TV production needs. This was a “puddlecam” rather than a “kerb cam” and was not in or on the kerb but behind it. He preferred the camera fixed, but tethering by the cable was the bare minimum and was acceptable in those circumstances. If he had seen it, he would have asked the camera crew about securing it or moving. If it could not be fixed or moved, there was the option of not using it at all. He would not have been concerned about a kerb cam there if properly secured, and not just tethered; he would anticipate the use of long stakes into the ground.

[389]In his report Mr Symes said that the workmanship of installing the camera was defective because it was not anchored sufficiently well to prevent it being dislodged when overrun during racing. But it did not cause any loss of control. In cross-examination by Mr Gardiner, he agreed that he was unaware of installation practice, as the Joint Report had said, and withdrew “to a degree” that conclusion, which he only expressed now with diffidence, deferring to others. He may not know how best to fix them, but I think that he is well placed to say whether the camera installation, whatever may have been good workmanship, was safe or not for the passage of fast cars.

[390]He agreed with Mr Gardiner that he would not expect the TV Company necessarily to know the lines which drivers took at corners nor the handling characteristics of the cars. But he would have expected it to have viewed some footage in preparing for the best camera locations. This was the first time that a kerb cam had been used at the Revival meeting, it was new technology for Goodwood, there was no previous MSA approval for it to draw on, and the Goodwood philosophy was to ask. However, there was no need for it to do so, because the camera was a standard piece of equipment and the location was comparable with locations in which this type of camera had been used at other circuits. There had been no discussion between the MSA and Goodwood about a kerb cam at the Revival meeting: Goodwood knew that it was prudent to ask if there was something different, but he would not criticise it if it did not, as an experienced circuit owner which knew the parameters. (viii). Conclusions on negligent installation

[391]The evidence on this issue on all sides was unsatisfactory. Mr Marriott was wont to stray well beyond his expertise, and expressed his views on this issue with a trenchant certainty which was quite unjustified. Mr Munro’s views were too extreme, and in large part were a consequence of his view of the role he thought the kerb cam had played in the accident, as indeed were Mr Marriott’s. It was not really his area of expertise, he added little to the short extract which I have quoted at the outset of this section and I found some difficulty reconciling all of them with his view that a car running over the kerb cam would not have become uncontrollable. There was a general lack of clarity over what each meant by “racing line” or what each was trying to convey as its significance. There was a lack of clarity on Goodwood/BARC’s part as to who was responsible for approving kerb cams, whether the MSA or BARC. I was particularly struck by the vagueness of what was meant in the evidence of a number of witnesses, notably Mr Symes and Mr Felix, by “properly securing” a kerb cam, and what seemed a fairly casual, even last minute, view about what should be done in relation to a kerb cam on grass or mesh. The question of whether or how the camera was to be secured from the point of view of competitor safety was not cleared before the meeting, nor the question of who if anybody had the decision-making responsibility.

[392]I accept Mr Gardiner’s submission that it owed Mr Green a duty to take the reasonable care to be expected from a reasonably competent television production company organising and installing equipment for an outside broadcast and TV programme at the Revival meeting. Whilst in principle budget is not irrelevant, it would play no part in my judgment here because I do not accept that it is only the very much more expensive form of kerb cam preferred by Mr Marriott that a reasonably competent television production company would use.

[393]I approach my conclusions in stages, starting with location and then turning to the manner of installation. First, this camera was not placed on the racing line as recognised in the Blue Book, but it was placed where it was reasonably foreseeable by Sunset & Vine, BARC, Goodwood and the MSA that cars would pass as on occasion, albeit not frequently, they crossed the kerb on to the verge. This was a known occurrence, even if undesired, undesirable and less common than driving on to the kerb stones. It was reasonably foreseeable that the kerb cam or cable would be run over by both wheels on one side of a car on the verge. It was reasonably foreseeable to Mr Docherty because he knew approval was required, and he discussed fixing the kerb cam with Mr McNeil which, whether for safety or footage continuity, would only be really significant if a car could run over cable or camera. In that location, pedestrian safety and the cable would be a very limited concern. He had carried out some research on the way Goodwood had been raced in the past for the purposes of filming it in 2005, and that informed him or should have done that corners were cut on occasion by cars going on to the verge. If in doubt, he ought to have enquired of Goodwood whether vehicles would run over it. He would have been told that they did, even if it was only infrequently either when they were driving out of control or in a manner which was against the rules and was discouraged. He had the location checked after each race, and by Saturday knew or ought to have realised, if he did not appreciate it before, that the potential for cable or camera being over run had actually been realised. His attention to the cabling on the Thursday evening supports that.

[394]Goodwood/BARC and MSA officials would certainly have made any decision about approving the location or manner of installation of the kerb cam on the basis that each would have known that it would at least occasionally be overrun there. Mr Symes put it at less than 10 times per 300 car laps, less than one car per lap.

[395]Second, if, as is the case, it is reasonably foreseeable that the kerb crossing each way, and the bumpy surface anyway behind the verge, could destabilise the car, it is equally reasonably foreseeable that another item there would add to the destabilising features, whether in an unsettling sequence or in an unsettling combination. It would be reasonably foreseeable that these destabilising factors during racing would be operating in combination with a car that was either already out of control to a degree or racing in a deliberately more risky manner, possibly both. Those are the circumstances in which a racing car would be on the verge in the first place. However, it was not reasonably foreseeable that that passage of the car over the kerb cam could significantly destabilise the car or add significantly to the destabilising effect of the kerb crossing. The camera was designed to be run over, even if its 1½ inches were proud of the ground; the grass would have some give, mesh less so. I accept the evidence that these cameras, even when not seated flush within kerbing or on the ground or when unsecured had not been known to cause any actual problems when run over; nor had the cable.

[396]In general, witnesses accepted that a kerb cam would have been removed from the track or kerbing itself. This suggests that it had a foreseeable destabilising capability there, and if there, then anywhere. There is force in that point. The significance of a minor degree of destabilising movement however on the track itself in close proximity to other cars, where no destabilising at all would be expected, is obviously greater there. The frequency of the passage of vehicles is greater there. There would also be a greater risk that a vehicle hitting such an object unsecured on the track would cause it to hit other vehicles in closer proximity. In the end I do not think that the generally precautionary approach which would be taken to track and kerbstones themselves can be used, in the face of the other evidence, to show that it was negligent to put the kerb cam where it was or that significantly destabilising a car on the verge was a reasonably foreseeable risk.

[397]I have also taken into account the evidence of the accident experts. Mr Munro’s own theory as to destabilising required such an unpredictable and rare, indeed scarcely conceivable, combination of events, that if it demonstrates a possible cause, it demonstrates more forcefully how unforeseeable the risk of significantly destabilising the car actually was.

[398]There is no evidence that on any previous occasions in races at different venues of a variety of types the presence of this camera had created any stability problem for a car running over it when it was proud of the track or kerb or verge surface. There is no evidence that any other car had been affected in any way by overrunning it at Goodwood, even though the car would already have been either to a degree out of control already or deliberately taking a calculated chance on being destabilised doing something which it should not do. There is actually no evidence of any car being affected by or drivers even being aware of the camera and cable on the track when it was hit on to the track, and on occasion hit while actually on the track.

[399]Third, I accept that Sunset & Vine approached its task reasonably in watching film of previous races, and in obtaining the camera and advice about its positioning and installation from Mr McNeil.

[400]Putting the kerb cam where it was, was consistent with a reasonable body of competent and informed opinion as evidence from Mr McNeil and Mr Livingstone, as well as Mr Symes, demonstrated. Mr Munro lacked the necessary expertise. Although Mr Marriott was unduly trenchant in his opinions, he did say that on safety issues he would defer to Mr Symes, who in substance disagreed with those trenchant opinions on location and accepted that the kerb cam’s location would have been approved. Mr Trouton’s fair but variable evidence showed that on this his reservations would have yielded to Mr Symes’ view. None of the BARC officials, notably including Mr Felix, would have or did require its removal. There are some unsatisfactory features to Mr Felix’s evidence but Sunset & Vine, and indeed Goodwood, would have been entitled to act on his advice and would not have been negligent in doing so.

[401]The evidence of Mr Livingstone and Mr McNeil is particularly relevant: they are reasonably competent professionals with relevant expertise. Mr Marriott’s disagreement, forcefully expressed, does not persuade me of more than that two views exist. It does not persuade me that he is right and that Mr Livingstone and Mr McNeil were expressing views outside the range which reasonably competent cameramen and producers hold and act on.

[402]Fourth, crucially, had Mr Symes’ approval been sought before the meeting to the locational details supplied by Mr Docherty to Mr Salmon in his email of 23 August 2005, it would in fact have been granted. Had Mr Symes known of its location during the meeting together with what had happened on Friday, he would still have been content with the location of the kerb cam. Mr Ticciati suggested that Mr Symes’ absence of concern over the camera called for scepticism, especially in the light of his concern about the kerb cam in the centre of the track for the Festival of Speed. I disagree. Mr Symes’ lack of concern may be surprising but more probably reflects the insignificance of the actual presence of the camera. No one suggested that he was lying about his views on this; Mr Ticciati is willing to wound but afraid to strike as he must.

[403]In any event, whether Mr Symes is right or wrong about the safety of placing a camera there in the way in which it was placed I find as a matter of fact, that he would have given his approval in the terms he described, if he had been asked. He would not have required it to be removed altogether, nor to be removed to a spot further infield from which it could not take the sort of footage Goodwood wanted. It would have been left where it was in the knowledge that cars would run over it.

[404]I have some reservations about the quite informal way in which approvals were given and recorded. I also have some concerns about the variability in or lack of thought given to Mr Symes’ answers on the securing of the kerb cam. However I do not doubt that if Mr Salmon had asked Mr Symes for his approval, he would have granted it. There is no dispute but that Mr Salmon had sufficient information from Mr Docherty on which to seek and obtain approval by the time he received the email of 23 August 2005.

[405]Either it was not or it could not be said that it would have been negligent of Sunset & Vine or Goodwood/BARC to rely on Mr Symes’ approval. He was not merely a man of great experience and expertise; he was the man who made the decisions to which others deferred. Criticisms may be made of his independence from BARC and Goodwood, of the reliability of his memory and the clarity and quality of some of his views as an expert, and in the clarity with which he would have expressed his approval in relation to the manner of fixing. But there can be no question but that he represented a, if not the, responsible body of opinion in accordance with whose view Sunset & Vine, and Goodwood/BARC, were entitled to act even if others disagreed with his views, and had sound reasons for doing so. It cannot be said that his views were negligently held, let alone so obviously negligently held that the defendants could not act on them without themselves being negligent.

[406]Fifth, it follows that to the extent that there was any negligence by Sunset & Vine in placing the kerb cam where it did without Goodwood/BARC or MSA approval, that negligence had no causal effect on the accident at all. The camera location was as it would have been if approval had been sought and obtained by Goodwood, as envisaged.

[407]I turn to the manner of installation. The manner of installation was irrelevant to the accident: it would have occurred in exactly the same way whether the camera had been fixed immoveably or the cable made taut and buried under the mesh. Nonetheless, because of the issue over causation and remoteness to which I come, I have to deal with it. First, essentially however Sunset & Vine relies on the limited knowledge to be expected of a television company of where cars raced and the effect of a kerb cam or its mode of installation upon them. But if so, it ought to have been alert to its own sources of information as to what was happening during the meeting, or to have been clear that the mode of installation was a distinct, albeit related, issue from the location of installation, and ensured that Goodwood/BARC knew what was proposed and approved it. I was surprised that Sunset & Vine in submissions rather than evidence should seek to put so much responsibility for the manner of fixing on to Goodwood, whose views it did not seek, or on BARC to whom it left the unheralded opportunity of a view from a distance.

[408]The manner of installation was not, and in my view was obviously not, a matter for a single area of expertise. It required the production team’s knowledge of available techniques and experience of using them, but it also required the specialist expertise, which it lacked but which Goodwood/BARC or the MSA had, in the ways in which an historic car could foreseeably react to various means of camera installation or could foreseeably cause the camera to react, if it hit a camera or cable, and with what reasonably foreseeable risks to other cars or competitors.

[409]It was reasonably foreseeable at least to anyone with any experience of kerb cams and racing that if a kerb cam or cable were run over by a car, the kerb cam could move save to the extent that it was secured in some way. The camera reasonably foreseeably, if wholly unsecured and with sufficient loose cable, if hit on the verge, could go on to the track at an unpredictable height, where it might hit or be hit by a vehicle, or even possibly hit the driver in the open cockpit. The cable, depending on how much was loose, could wrap itself around the axle of a vehicle. This was reasonably foreseeable to a reasonably competent camera company such as Sunset & Vine, to the MSA and BARC officials, and also to Goodwood.

[410]I accept that in so far as it bore responsibility for the manner of installation, it acted reasonably in taking Mr McNeil’s advice and acting on it. It also in fact acted on the Thursday in line with what Mr Symes would have approved and with what Mr Felix regarded as acceptable. But it was negligent of Sunset & Vine, if it did so, to regard the manner of installation as a matter upon which its understanding, based on what Mr McNeil said, was a sufficient basis upon which to act as opposed to a starting point for discussion with and approval through Goodwood or directly from BARC or the MSA. Alternatively, if it did not regard the manner of installation in that way, and if Mr Gardiner’s submissions are correct on these facts, it was negligent in not taking reasonable steps to inform Goodwood of the manner of installation so that Goodwood could obtain approval, or in not enquiring as to when BARC or the MSA could inspect how it had actually been installed so as to approve or disapprove it. The manner of installation was simply not placed before Goodwood for it to seek approval or approve. It was not even discussed. Goodwood did not raise the issue either.

[411]It was also negligent of Sunset & Vine not to check approval to the manner of installation in the light of what to it were the unforeseen events on the Friday, and to make sure that the cable was secured as it had been on the Thursday. Mr Gardiner suggested that Sunset & Vine did not know what its technicians, who repositioned it, knew about its movements. If Mr Docherty did not know, that to my mind emphasises that it ought to have asked the technicians to tell it what they saw happening to a camera so close to the track, and especially so if Sunset & Vine regarded itself as able to decide on the mode of installation without the approval of others, which in reality is what happened.

[412]Second, this negligence, in not seeking BARC/MSA approval for the mode of installation if remedied, would not have affected the mode of installation on Thursday. The reaction of officials including Mr Symes would not have been that the kerb cam itself needed to be fixed to grass, or even to the mesh, with some form of bolt or “V” shaped stake because of the risk that the passage of cars moving the kerb cam would dislodge the bolt or stake and send it flying. He would not have required the camera to have been moved back behind the mesh let alone to a distance some feet away. He would have disapproved of the extent of loose cable shown in the photographs of the restarted Goodwood Trophy but he would only have required the cable to be pulled back into the trench. Mr Symes would have taken note of what Mr Docherty advised, based on what Mr McNeil of the BBC had said. This, as Mr Livingstone’s evidence showed, was consistent with the advice which a body of competent, experienced camera installers would have given even if others might have disagreed.

[413]The reaction instead would have been that Mr Symes would have entered a vague caveat, to his approval of the location, to the effect that the kerb cam should be properly secured. He would have accepted a degree of movement in the camera because he would have accepted the cable passing unfixed over the mesh to the camera from where it was placed in a shallow trench behind it. Although Mr Trouton had some misgivings about the camera location after the event, neither he, Mr Felix and Mr Symes thought that there was anything about that lack of securing which was really untoward.

[414]BARC officials would all have required the cable to be laid and fixed in such a way that it could act as a tether for the camera significantly reducing the prospects of it being hit on to the track, or of flying in the air. There is no evidence that the camera became detached from the cable at the point where it was clamped to the camera on the occasions when camera or cable was hit on the verge.

[415]The system which would have been approved would have included a more time consuming and labour intensive process of feeding the cable between panel edges as they met at the angle where their straight edges accommodated the track curve, and between broken and dented bits or making it more taut in the ground on the battery side of the mesh. This would have been rather closer to what Mr Docherty’s team did on the Thursday and rather more than was done on the Friday and Saturday. What was done on Thursday was not negligent. And in the light of Mr Symes, Mr Felix and Mr Trouton’s evidence I do not conclude that it has been shown that the installation first thing on Saturday was done in a negligent manner either, although an improvement would have been required.

[416]But as I have said the important point however, is that the installation of the camera, with that degree of fixing by the cable, would have made no difference to how the accident occurred. The result of the Maserati overrunning it would have been exactly the same even if the camera had been rigidly fixed – which no system of fixing the cable could have or would have been intended to achieve. The mode of installation, even as on the Saturday and even if negligent, made no difference to whether the accident occurred or occurred in exactly the way as it did.

[417]I am satisfied that any difference, and it is no more than a modest one between the fixing of the cable on the Saturday morning before racing, and what Mr Symes or others would have required had no causative effect on the behaviour of the car. The manner of fixing the cable is irrelevant to what happened to the car.

[418]Mr Symes’ approval would not have contained any requirement that the competitors be briefed about the presence of the kerb cam there. I have already stated my conclusion on the absence of impact which knowledge of the presence of the kerb cam would have had on the way Mr Green drove that race.

[419]The evidence is quite clear that there was no separate or independent negligence on the part of Sunset & Vine in failing to brief drivers about the presence of the kerb cam. That all stems from its emplacing the kerb cam without approval. Had it had approval, the question of whether or not drivers should have been told would have been for Goodwood/BARC. If approval had been granted, it is Goodwood/BARC which would have had to make that judgment. They would not have told drivers about it because, positioned on the verge and off the racing line, they would have regarded it as safe, and therefore inconsequential for drivers. Mr Symes’ advice would have reinforced their view. The absence of briefing and the view that it is safe go together. A briefing would have been evidence that it was unsafe.

[420]Sunset & Vine is not liable to the claimant.

Negligence by Goodwood/BARC

[421]Goodwood/BARC, or one of them, were occupiers under the Occupiers Liability Act 1957 and owed Mr Green the s2(2) duty to take such care as was reasonable in all the circumstances to see that Mr Green was reasonably safe in racing at Goodwood. Goodwood’s negligence, as pleaded, consisted of permitting Sunset &Vine to place the camera at all at Woodcote Corner. BARC, it is said, was negligent in not requiring its removal. Goodwood was negligent in failing to instruct Sunset & Vine that any cameras it installed, including the kerb cam, should be in position in time so that BARC officials or the MSA could see them all when inspecting the course on the Thursday. Both negligently failed to warn Mr Green of its presence. Goodwood was also negligent in failing to forward for approval to BARC or the MSA the Sunset & Vine email of 23 August 2005 which contained the details of the proposed location of the kerb cam, or to take steps to alert BARC that the camera positions had changed from previous years by the inclusion of the kerb cam. BARC negligently failed to enquire of Goodwood whether any change was proposed, or of Sunset & Vine as to where the cameras were to be placed.

[422]I have already rehearsed the relevant evidence, and I now come to my conclusions.

[423]Whatever may be the position as between Goodwood and Sunset & Vine over Mr Salmon’s oversight in failing to forward to Mr Symes the email from Mr Docherty containing the details of the proposed kerb cam location, there was no duty of care owed by Goodwood to Mr Green in that respect. If the relevant approval had not been obtained, then the consequences as between Goodwood and Mr Green should be those which follow from the fact that Sunset & Vine installed the camera without MSA approval.

[424]Goodwood knew or ought to have realised from the photographs supplied by Mr Docherty in his email of 23 August 2005 that, if the kerb cam which it and Sunset & Vine wanted to use was placed where Sunset & Vine intended, it would be close to the back of the kerb. It knew or ought to have known that vehicles would overrun it if it were placed there. It did not forbid its emplacement nor seek approval for it either.

[425]But Goodwood did not permit Sunset & Vine to place the kerb cam at Woodcote Corner, or to place it in the manner it did either. I have accepted Goodwood’s evidence about what happened before, during and after the meeting of 23 August 2005. Goodwood, through discussions before and at that meeting, was well aware that Sunset & Vine wished to use a kerb cam there, and did not itself oppose it or have any objections to it. The budget negotiations and indeed their outcome and payment show that Goodwood itself wanted it, and was willing to pay for it before and after the accident. Ratification has not been raised.

[426]I believe that, at the 23 August meeting, Ms Tinworth conveyed the support of Goodwood for a kerb cam, but not that it had MSA/BARC approval, and she would certainly not have conveyed expressly what she did not know and had no authority to convey. Mr Docherty and Ms Keen may have taken the words as meaning more than they did. A certain informality, casualness and want of clarity, precision, paper trail and follow up was evident among all the defendants. There was a casualness and carelessness in the way in which Goodwood dealt with obtaining the approvals which both it and Sunset & Vine wanted for the Revival meeting. Mr Salmon overlooked an important email. But that did not breach any duty of care owed to Mr Green. And it did not amount to a permission to Sunset & Vine to place the kerb cam where and how it did.

[427]The evidence of Goodwood witnesses was that Goodwood would not have a separate aesthetic interest in the location of a kerb cam on the ground, unlike its interest in larger mounted cameras which were high up and conspicuous and had a possible impact on the character or atmosphere of the event. The kerb cam would be of no interest in that respect unless it were fixed on, say, a large concrete base. So there was no scope for a separate approval from Goodwood just dealing with aesthetics.

[428]Nothing that happened at Goodwood before the accident shows a tacit let alone explicit permission by Goodwood to the placing of the kerb cam where and how it was placed. Only Mr McNeill recollected, at some uncertain point, seeing footage which he realised came from a kerb cam on the inside of the second apex at Woodcote Corner; and he was not involved in the approvals process.

[429]Mr Symes gave the strong impression that he did not regard the kerb cam as a matter for MSA approval and that any details of installation could be dealt with adequately by BARC officials at the meeting. BARC formally permitted nothing, nor is it contended that it did, and I have expressed my conclusions already on whether its actions or omissions at the Revival meeting conveyed any approval. They did not. BARC was copied in on the email but could not see the kerb cam, even if it had been looking out for it on the Thursday, because it was not there. No one had told Sunset & Vine of the time of that inspection, nor had it enquired. The daily BARC inspections from the car would not have told it that it was there. But the evidence is clear that, on Friday and certainly before racing began on Saturday, BARC officials, at all levels including senior levels, knew that it was there and was being overrun, even if it was only overrun on those occasions when it was knocked on to the track. For these purposes, it is irrelevant whose duty it may have been to inform BARC about the kerb cam; at the relevant time, it knew. Its acts or omissions are to be judged on that basis.

[430]I do not think that there was any negligence on the part of BARC in failing to enquire of Goodwood as to whether there were any changes to the camera positions. It would have expected to be told of any or to see them. Goodwood would in any event not have told them of the kerb cam. Nor was it negligent of BARC to enquire of Sunset & Vine about camera positions before Friday. These were track licencing issues or to be dealt with by track inspections.

[431]It would not have been negligent of BARC officials, notably Mr Felix, to conclude that the placing of the kerb cam there was not a significant risk by itself or in the circumstances in which drivers would be overrunning the kerb, essentially for the reasons which I have given in relation to the placing of the camera and its installation when considering the liability of Sunset & Vine.

[432]But were BARC officials negligent in failing to require the removal of the camera in the light of experience here on the Friday? Mr Felix, to whom others might have referred the issue, was not aware of its presence till Sunday. There has been no suggestion that he, or Mr Trouton for the MSA or other officials, conducted the course inspections negligently. The kerb cam was inconspicuous because it was a small object off the track and behind the kerb. Those competitors who walked the course did not see it.

[433]The radio traffic on Friday told Mr Wells about the presence of an object which cars were hitting, and hitting on to the track. Mr Wells did not give evidence. I infer that he must have known on the Friday that this was happening. He did not discuss it with any other BARC officials or with any MSA official. I infer that this is because he did not think that this was a problem or because he thought that the kerb cam had been approved by the MSA, rather than because he thought it was a safety problem which no one had cleared but to which he was simply indifferent. His absence caused comment; no one asked for a Witness Summons. There is a lurking suggestion of illness.

[434]I do consider that it was negligent of Mr Wells not to enquire either of Goodwood or BARC or MSA officialdom if there had been an approval for the installation of the kerb cam, where and how it had been installed, simply because there was an object getting on to the track unexpectedly. No one suggested that the kerb cam would simply have been left loose on the track.

[435]However, had Mr Wells made enquiries and been told that no approval existed, he would have asked BARC officials whether it should be moved or fixed. If they had asked Mr Symes, his response would at most have led to less cable being loose and the Thursday position restored. If they had decided it themselves they would have reached the same decision. Neither decision in turn would have been negligent. It would not have been removed. It was not negligent not to require its removal. Even if left as on Saturday, it would not have been negligent on the part of BARC in the light of the evidence of Mr Symes and Mr Trouton of the MSA upon which BARC would have been entitled to act.

[436]Should BARC have alerted drivers to the presence of the kerb cam? Neither Goodwood nor BARC was in a position to brief drivers on the Friday morning about the presence of the kerb cam because they did not know of it. Had Sunset & Vine put it in position on the Thursday in time for it to be seen on the Thursday inspection at 4pm in the way it was put in position later that evening, I conclude that drivers would not have been briefed about it anyway. This was not a topic drivers were briefed about because it was not something which they might need to know.

[437]It would not have been the practice to before the Friday because such cameras were not seen as creating any hazard for drivers to be aware of. Mr Symes’ approvals would not have required competitors to be briefed. The events on Friday would not have changed that. The response to those events at most would have been to require Sunset & Vine to install the kerb cam as it had been installed on the Thursday evening. That would reasonably have been seen as safe. On that view, which I accept, it would not have been negligent for BARC to have omitted reference to it from the drivers’ briefing on the Saturday, on the basis that Sunset & Vine complied and that was checked. But its position would not have altered. And that knowledge of its presence could not have affected how Mr Green drove. If to the drivers’ knowledge it had been left installed with the cable as it was on the Saturday not Thursday, that would not in my judgment have affected Mr Green’s driving.

[438]Although I conclude that BARC was negligent in certain respects, that negligence did not cause or contribute to the accident for the reasons I have already given.

[439]The claims against Goodwood and against BARC are dismissed.

Contributory negligence

[440]It is not necessary to reach a view or the extent to which if at all Mr Green’s driving amounts to contributory negligence. Nor is it necessary for him to have been contributorily negligent for the defendants not to be liable at all. However, having reached a view, I have decided to express it lest the question should arise hereafter.

[441]Had I been of the view that any or all of the defendants had been negligent in placing the kerb cam where it was, or in allowing it to remain there, and had that negligence caused or contributed to the accident, I would nonetheless have regarded Mr Green as 80 per cent to blame, because of the modest causal contribution which their negligence made compared to what I regard as the far more potent causal contribution made by the way in which Mr Green drove, and the blameworthiness of how he drove. Essentially, but not exclusively, the accident was his fault.

Causation and remoteness

[442]This issue concerns whether any defendant can be liable to Mr Green if, as I have found, the manner of installation did not cause or contribute to the accident in any way, but the manner of installation was negligent and could reasonably foreseeably lead to an accident on either of the two “lethal missile” scenarios (i.e. a car striking the camera on the track once dislodged there or a dislodged flying kerb cam striking another car or driver) or by cable entanglement with the wheels.

[443]Mr Ticciati submitted that if I were to conclude that(a) it was reasonably foreseeable that a car might be destabilised because it passed over the kerb cam in the location where it was placed in a way which could lead to personal injury or

(b) it was reasonably foreseeable that a car might hit the camera and cause it to become a danger to other cars by knocking it into the track where running over it could destabilise them leading to personal injury, or by knocking it flying into the air over the track where it could cause harm to other drivers, those at fault for placing the kerb cam there or for installing it insecurely would be liable for Mr Green’s accident, even if the chain of events leading to his accident was not a reasonably foreseeable chain of events. A personal injury accident to a driver and damage to his car was a reasonably foreseeable consequence of the negligence in placing a camera where it was placed, or placing it there in the manner chosen. The accident would have been caused by a known source of danger, and any unforeseeability in the way in which the known source of danger caused the accident was irrelevant to liability; Hughes v Lord Advocate

[1963] AC 837

, Jolley v Sutton LBC [2000] IWLR 1082.

[444]Mr Gardiner for Sunset & Vine contended that the claimant had to show(a) that it was reasonably foreseeable that a car might be destabilised by passing over the camera in such a way as to cause the personal injury accident, or

(b) that it was reasonably foreseeable that a car might hit the camera and cause it to become, in some way, a “lethal missile”, and that the injury which in fact occurred was of the same “description” as the “lethal missile” scenario.

[445]Mr Barker for Goodwood/BARC submitted that the accident was not caused by a known source of danger – the camera itself on the evidence was not a known source of danger. He expounded the same analysis as did Mr Gardiner. It was not reasonably foreseeable that contact between the car and camera would destabilise the car so as to cause personal injury, as happened. The two “lethal missile” scenarios or loose cable entanglement around the axle of a car were “injuries” of a different description and too remote.

[446]Jolley v Sutton LBC illustrates that an accident caused by a known source of danger but caused in an unforeseeable way still leads to liability. The unforeseeability of the mode of causation of the scale of injury does not make it too remote. Thus the Council was negligent in leaving the boat in a location where it was reasonably foreseeable that children would meddle with it and that would cause some minor injury. It was liable for major injury even though it could not reasonably foresee that children would try to prop and repair the boat and suffer major injuries from its collapse, which is what happened.

[447]Mr Barker is right in his starting point. This decision does not create liability for an injury which the negligence did not cause. In Jolley, the negligence did cause the injury, even though how it did and the consequential extent were not reasonably foreseeable (on this part of their Lordships’ decision). Negligence arose because, leaving the boat where it was, reasonably foreseeably would cause and in fact did cause injury, to children who were attracted to play on it. The series of events whereby a child would prop it to repair it and suffer catastrophic injuries, if not itself reasonably foreseeable, was one for which it was liable.

[448]Here, on the basis, as I have found, that the presence of the kerb cam made a minor contribution to the accident, and on the assumption that that was reasonably foreseeable and was negligent, liability would arise. For the reasons which I have given, however, it was not negligent to place the kerb cam where it was placed. That location would have been approved and conformed to prevailing television production industry and motor racing standards. If the lack of fixing of the kerb cam or tethering by cable, with cable lying loose on the surface, was negligent because it was reasonably foreseeable that an accident could arise from the “lethal missile” scenarios or cable entanglement, that negligence simply played no causal part at all in the accident which did happen. The lack of fixing did not play the part in this accident which abandoning the boat, or abandoning the rotten boat, on which it was reasonably foreseeable that children would play, had in Jolley’s accident. The kerb cam itself was not a known source of danger placed where it was. If the lack of fixing was a known source of danger, the removal of the danger was by fixing the camera, not its removal. It was the presence alone of the kerb cam which made a minor contribution to the causing of the accident, not the lack of fixing. Jolley is not authority at all for a proposition that a causal link between the negligent act and the injury is unnecessary.

Indemnity claims between Sunset & Vine and Goodwood

[449]I now turn to the indemnity claims between Sunset & Vine and Goodwood. This depends on the terms of the contract between them. The written contract was not signed until after the Revival meeting was finished and indeed not until 23 September 2005.

(i) The evidence of Sunset & Vine

[450]Ms Keen organised the people and equipment necessary to produce the outside broadcast and television programme. She also monitored the budget, and handled the contractual negotiations between Sunset & Vine and Goodwood. In early 2005 Goodwood invited tenders from television production companies to produce a television programme based on both the Festival of Speed and the Revival meeting. The tender document asked for “a fresh creative approach to the coverage of the Festival”, demanding “new camera positions, new angles, new ideas for content and new technology”.

[451]In order to get on to the approved list of contractors established by Goodwood for all independent contractors carrying out work on the estate, Ms Keen said she had had to complete the “potential contractors’ pre-qualification questionnaire on health and safety”. There was a further document that she was sent for her attention at the same time as the questionnaire. This was a document called “Duties of Contractors” containing health and safety rules. The letter enclosing it from Ms Tinworth said that it had to be retained and read by Sunset & Vine and all on-site personnel for compliance whilst working on the Goodwood estate. Ms Keen returned the questionnaire on 1 June 2005. The questionnaire covered the safety practices and track record of the company. Proof of public liability assurance had to be provided. A risk assessment dated 1 June 2005 for the Festival of Speed was also produced. It is in the same format and covers essentially the same risks in the same way as was to be done on 22 August 2005 for the Revival meeting. There was no reference to a road cam. There was a risk assessment by Visions as well for the Revival meeting which covered cables and the risk to camera crew and public from uncovered and untidy cable runs. The racing cars constituted a hazard but kerb cameras did not.

[452]The 1 July Goodwood Duties of Contractors documents contained in the introduction the following:

“It is a condition of contract that any contractor or subcontractor of theirs working for Goodwood is required to comply with the rules outlined in this document and with all relevant statutory provisions and Codes of Practice. Any instance of non-compliance shall constitute a breach of contract and Goodwood shall not be liable for any claims where work is stopped and/or remedial action has to be taken as a result of such a breach.”

At Clause (e) was the “Contractors’ indemnity” which reads:

“The contractor shall be liable for and shall indemnify Goodwood against any expense, liability, loss, claim, cost of proceedings which may arise in respect of any personal injury or damage to any property arising out of, or in connection with the work of the contractor unless due to the neglect of another party.”

At Clause (e) was the “Contractors’ indemnity” which reads:

[453]There was no written contract by the time of the Revival meeting however. She said that the terms of the contract were agreed verbally and recorded in a written agreement dated 23 September 2005. She understood that Goodwood would retain overall responsibility for organising the Revival meeting, including health and safety and in particular responsibility for the safe positioning of cameras.

[454]The television production and distribution agreement between Goodwood and Sunset & Vine was prepared on 15 September 2005 just before the Revival meeting and was signed by both parties on 23 September 2005 after it had concluded. The agreed contract sum was as set out in the 1 September 2005 budget and reflected the agreed split between production costs and production fees. Her aim had been to get the agreement signed before the meeting, but that had not happened. This draft was prepared by the Sunset & Vine company solicitor who faxed it to Goodwood around 14 or 15 September 2005.

[455]Sunset & Vine drew attention to the following clauses from its draft and which were in the agreement as signed:

“3.4 Goodwood shall be responsible for carrying out a health and safety risk assessment and for managing the health and safety of its employees and agents and any third parties in relation to the staging of the Event. “3.4 Goodwood shall be responsible for obtaining all necessary insurance cover in relation to the staging of the Event, including without limitation, public liability and employer’s liability insurance and shall be liable for any loss or damage suffered by its employees and agents and any third party in relation to the staging of the Event 4.1 [Sunset & Vine] shall (a) create the Programme using the reasonable skill and care of a television production company experienced in the production of first class television programmes and… 4.5 S+V shall be responsible for carrying out a health and safety risk assessment and for managing the health and safety of its employees and agents and any third parties in relation to the production of the Programme”

The warranties and indemnities so far as material were as follows:

“7.1 Goodwood warrants, represents and undertakes to S+V that: (e) it has complied with all applicable laws in relation to the organisation and staging of the Event, including without limitation, all health and safety legislation; and (f) it shall indemnify S+V against any claims, proceedings, losses, expenses and liability (including reasonable legal fees) arising out of or in connection with any breach of the terms of this clause 7.”

Clause 14 (b) and (c) provide as follows:

“(b) This Agreement together with any documents referred to in it, contains the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, undertakings, representations or warranties whether written or oral relating to the subject matter of this Agreement. (c) No variation of this Agreement is effective unless made in writing and signed by the parties hereto.”

The warranties and indemnities so far as material were as follows: Clause 14 (b) and (c) provide as follows:

[456]The Festival of Speed Agreement between Goodwood and Sunset & Vine had followed the same format as that which was signed for the Revival meeting on 23 September 2005. (ii). The evidence of Goodwood

[457]Mr Sutton was the Motor Sport Director at Goodwood at the time of the 2005 Revival meeting. He had previously been a professional journalist in motor sport as well as a competitor in historic racing cars. He had been employed by Goodwood since 1996. It was Mr Widdows’ task to commission and coordinate television and DVD production of major events at Goodwood as the Motor Sport Marketing Director. This included negotiating the financial deal and assessing creative requirements and discussing infrastructure and operational requirements, including cameras and camera positions. A new company was selected for the 2005 Events and Mr Widdows recommended Sunset & Vine. Mr Sutton was copied in on the financial side of the Sunset & Vine budget but the negotiation and decisions about cameras and positions were left to Mr Widdows.

[458]The purpose of the Duties of Contractor document was to ensure that Group Health & Safety Terms were adhered to according to Mr Sutton. Any contract would be made against this background. He accepted Goodwood’s responsibilities set out in the Sunset & Vine contract as being Goodwood’s. The budget and content of the budget, what would be supplied and when, and the Sunset & Vine obligations as the production company were matters for Mr Widdows. The rest of the contract was for him. None of the obligations on Goodwood apart from supplying an event with the infrastructure and ability to carry it out covered the area of Goodwood when the circuit went live. (iii). Conclusions

[459]It is plain that at the time of the Revival meeting, no contract had been reached on the basis of the Sunset & Vine draft. It had merely been sent. It was intended to be binding when signed. That had not yet happened. The mere passive receipt of the draft by Goodwood followed by the employment of Sunset & Vine at the meeting does not create an implied acceptance of those terms. At that time, the Goodwood “Duties of Contractor” document was the basis upon which Sunset & Vine was carrying out its work. It was an actual term of the implied contract.

[460]However that changed when the Sunset & Vine draft was signed. It was the clear expectation of both parties that their contractual relations for the Goodwood Revival meeting would eventually be governed by a written signed contract, whenever it was signed, whether before, during or after the meeting. The contract as signed was intended to be the contract governing contractual relations for the event, even though it had passed. It did not purport to cover any future engagements. But it did cover how liabilities or obligations in relation to past events were to be arranged between the parties. It is expressed in clause 14(b) to be the whole agreement.

[461]The mutual consideration from each party was the exchange of one set of contractual promises for another. The indemnity and any other obligations, for whatever importance they may have, are governed by the terms of the contract as signed which in fact is based on the Sunset & Vine draft. It alters the position from that shown in the Duties of Contractors document. It supersedes it contractually. The two do not and cannot sit side by side or be made to do so. If Goodwood meant to contract on some other basis, it should not have signed up to Sunset & Vine’s terms.

[462]The provision of clause 14(b) of the Sunset & Vine terms, the terms of the contract, exclude the Duties of Contractor document from contractual effect.

[463]This may only be relevant to any costs liability between themselves because I have concluded that neither is liable to Mr Green.

[464]If Goodwood had been negligent, and liable to Mr Green, Sunset & Vine contends that it would also be liable to indemnify Sunset & Vine in respect of that negligence, even if Sunset & Vine had also been negligent. I would not have extended the indemnity’s scope to make Goodwood liable to Sunset & Vine.

[465]Mr Gardiner also submitted that on the terms of its contract with Goodwood, the safety of methods of installation fell within the scope of Goodwood’s obligations in relation to the safety of the “staging of the event” rather than within the scope of the health and safety of producing a television programme.

[466]I take the view that this depends on what aspect of safety is being considered. The safety of the installation from the point of view of competitors, spectators and the others who attend the meeting such as tradesmen, falls within Goodwood/BARC’s remit. It relates to the safety of the staging i.e. holding and running the race meeting. The safety of the installation from the point of view of the film crew and others working on the production of the TV and outside screen broadcast is for Sunset & Vine. Such a division of responsibility accords with their respective areas of expertise and conforms to the contract. (iv). Civil Liability (Contribution) Act 1978

[467]No issues arise as between Sunset & Vine and Goodwood or between Sunset & Vine and BARC. There is nothing in the contract to supersede or affect this statutory position because none of the defendants are liable to Mr Green. Had I found that any had been liable to Mr Green for any part of the accident, apportionment would have depended on the basis upon which I reached that conclusion. But in broad terms had there been negligence in relation to the placing of the camera where it was and keeping it there, I would have thought BARC were the more to blame, of the order of 75 percent because it should have required its removal. If negligence related to the manner of installation, I would have regarded them as equally to blame. Sunset & Vine because of its, or Visions’, installation experience, BARC because it could see the effect of what had happened in consequence, and had knowledge of the reaction of cameras or cable to cars, and vice versa.

Overall Conclusions

[468]This claim is dismissed.