Birch v Ministry of Defence [2012] EWHC 2267 (QB)

[2012] EWHC 2267 (QB)

Case No 9MA91625

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY

Date 31/07/2012

Liverpool Crown Court,

Derby Square, Liverpool, L2 1XA

Before

THE HONOURABLE MR JUSTICE BLAIR

Between

THOMAS JOSHUA BIRCHClaimant

MINISTRY OF DEFENCEDefendant

Ms Amanda Yip QC and Mr Christopher Barnes (instructed by Hilary Meredith Solicitors Limited) for Claimant

Mr Louis Browne (instructed by Berrymans Lace Mawer) for Defendant

Hearing Hearing dates: 16, 17, 18, 19, 20 and 24 July 2012

Judgment

[1]This is a claim in respect of injuries suffered by the claimant in an accident that happened on 13 November 2006 when he was driving a Land Rover down a mountain track. He was serving with the Royal Marines in Afghanistan at the time, and the defendant is the Ministry of Defence. The claim is based on what is said to have been the vehicle’s defective steering and its unsuitability for negotiating the track where the accident happened, and an alleged lack of appropriate systems for training drivers and ensuring that only those appropriately trained to drive in off-road conditions did so. The latter point arises in part because the claimant (who was aged 18 at the time) did not have a full UK driving licence. The defendant denies liability, and alternatively relies on contributory negligence.

[2]The claimant suffered serious injuries in the accident. I am told that he has received a lump sum award of £318,000 pursuant to the Armed Forces Compensation Scheme and presently receives annual tax free Guaranteed Income Payments (“GIP’s”) pursuant to the Scheme of £27,239.32, which are index linked.

[3]These proceedings were begun on 2 November 2009, so just within the limitation period. It has been ordered that that liability and causation be tried first. Whatever the outcome of this trial, I should note the steadfast manner in which it has been pursued by the claimant’s mother and father. As I shall explain, though young, he was already showing sufficient promise to have been promoted to Lance Corporal. It is a tragedy that his promising career in the marines was cut short as it was.

[4]The trial took place over six days. On behalf of the claimant, I heard evidence from his mother and father, Mr Steven Birch and Mrs Gail Birch, and from three fellow marines, David White, Daniel Ravenscroft and Mathew Fenton, the latter who was the passenger in the Land Rover and who also suffered severe injuries in the accident. The factual witnesses for the defendant were Captain Gareth Oliver, Force Master Driver, whose responsibilities concerned transport arrangements within Afghanistan, Corporal (now Colour Sergeant) Alan Hewett, also a fellow marine, and Captain (now Major) Luke Kenny, who was the officer in command at the time and the place of the accident. The claimant submits that the evidence of Sergeant Hewett and Major Kenny was “tainted by inconsistency”. As an overall criticism I reject that appraisal, and I found each of the marines (present and former) to have been good witnesses, though there are differences in their evidence, and I shall have to decide whose evidence I prefer on certain issues.

[5]The parties called expert evidence as follows. Mr Paul Beswick, an accident investigator, gave evidence for the claimant. He was assisted by an automotive engineer, Mr David Bellamy. The claimant also relied on the evidence of a metallurgist, Mr Michael Broadhurst. On its part, the defendant called a collision investigator, Mr Daniel Bradshaw, and a metallurgist, Mr Rod Newbery. There has been considerable criticism made by the defendant of Mr Beswick, and I shall state my views as to this and as to the other experts later in this judgment.

[6]It is necessary to mention also that after proceedings were begun at the end of 2009, the claimant appointed as his expert Mr Stephen Henderson, a forensic engineer specialising in the investigation of road traffic accidents. The claimant no longer relies upon Mr Henderson, who has been replaced by Mr Beswick. He was not called at trial, but the defendant relies upon his evidence under CPR r.35.11.

The parties’ contentions

[7]The parties’ contentions have been straightforward. As expressed in the claimant’s submissions, he maintains that the defendant was in breach of its duty of care owed to him in the course of his service in two respects:(1) Failing to provide safe equipment—the claimant’s primary case is that the accident was caused by a mechanical defect which led to a loss of steering control.

(2) Failing to provide safe systems of work—if the court rejects his primary case, and concludes that mechanical failure did not play a part in the accident, the claimant relies upon a lack of appropriate systems for ensuring driving tasks were carried out only by those who were appropriately qualified. The claimant’s case is that there were insufficient available trained drivers and that the system in fact operating allowed and encouraged the claimant to drive without an appropriate licence and while untrained in driving in off-road conditions.

[8]As to (1), the claimant’s case at trial has been that(i) the Land Rover’s steering was defective at the time of the accident;

(ii) there was a loss of pre-load in the front offside swivel assembly;

(iii) the swivel assembly failed while the vehicle was being driven and the lower swivel pin sheared;

(iv) directional control of the front offside wheel was lost;

(v) as a result, the claimant lost control of the vehicle. This is the claimant’s primary case, and has been the focus of most of the attention at trial.

[9]As to (2), if the court rejects this primary case and concludes that mechanical failure did not play a part in the accident then (as it is expressed in the claimant’s opening submissions) we are left with driver error. The claimant then relies on lack of appropriate systems for training drivers and for allocating driving tasks to those who were appropriately qualified. The claimant had not been trained to drive off-road, did not hold a full UK driving licence, and did not hold a military driving permit.

[10]It is also convenient to note that in his opening submissions, the claimant summarised the major issues for determination by the court as follows:(i) What was the cause of the accident?

(ii) Was loss of control of the vehicle caused by mechanical failure?

(iii) If not, was it caused by driver error?

(iv) If caused by driver error, is the defendant liable for failing to ensure there were sufficient trained drivers and that only those trained drivers drove?

(v) If primary liability is established, does contributory negligence arise?

[11]It is the defendant’s case that if the claimant proves that the cause of the Land Rover leaving the track was a loss of control of that vehicle, then such loss of control did not arise because of any defect in/want of maintenance of the Land Rover. The claimant was a Lance Corporal and thus in a highly responsible position. He held no UK full driving licence and did not hold a FMT 600 (military driving permit). He was, therefore, contends the defendant, quite simply not qualified to drive the Land Rover. Nor was he authorised to do so. There was, at the relevant time, a system in place to ensure that soldiers/marines leaving the observation post on tasking would first visit the operations room and register their details with the radio operator who would note their details on a movement board in the ops room. They would then be given the keys to the vehicle. There was thus no failure of systems for which the defendant is liable either.

The facts

[12]The facts as I find them are as follows. The claimant was born on 18 February 1988. When he reached his seventeenth birthday, he fitted in driving lessons as and when he could. His parents say that he had showed that he was a natural driver, but by the time of the accident on 13 November 2006, he had not yet taken his test. He had decided to defer it until after his return from Afghanistan. After the accident, he passed his test first time on 16 December 2009, and is now a regular driver.

[13]On 10 January 2005, the claimant enlisted in the Armed Forces, and passed out in September 2005. He achieved the rank of Lance Corporal in the Royal Marines in September 2005.

[14]In about September 2006, he was sent with 42 Commando Royal Marines to Afghanistan. At the relevant time, the claimant was one of about twenty five marines in 5 Troop. At about the end of September 2006, the troop was deployed in the area of the Kajaki Dam, which is on the Helmand River. The dam itself was guarded by American and Afghan forces, but the terrain included a series of low mountains known to the military as Athens, Normandy and Sparrowhawk, and these fell within the marines’ responsibility. They were deployed in observation posts on the summit of the first two, the third being at that time under Taliban control. Athens was the main one, where the claimant was based, and the one that features in this case.

[15]The commanding officer at Athens was Captain Kenny. The evidence is that he was an informal and popular commander. The post came under frequent attack, and it was clearly a dangerous place, and witnesses testified to the pressure the troops were under.

[16]They had occupied what was an old Soviet post covering an area of about 300 by 100 metres. In Soviet days, this location could not be reached by road. It had been surrounded by a minefield, and troops were airlifted in and out by helicopter. At some point after 2001, a rough track was constructed by military engineers which led from Athens down to a compound of the Operations Mentoring Liaison Team (OMLT) and other facilities at the foot of the mountain. The distance was no more than two miles, but in places (particularly where it left Athens) the track was rough and steep. However, although there was evidence that the vehicle might present a target while stationary at Athens, there is no evidence that it was subject to that risk while driving up and down the track, which was described by one witness as a “secure” track.

The Land Rover

[17]At the time the claimant was there, supplies and personnel were driven up and down the track in a Land Rover (sometimes assisted by a US 4 x 4 pick-up truck when required). The vehicle first came into service on 23 March 1998, and was a short wheel base (SWB) right hand drive Land Rover Defender TUL HS (standing for Truck Utility Light – High Specification) with a canvas roof and roll over bars. It had a 2.5 litre diesel engine and four-wheel drive. It arrived in Afghanistan on 1 June 2006. It had received a full service at Camp Bastion on 16 August 2006, and it is not dispute that it was roadworthy at that point in time. It came into service at Kajaki with 42 Commando RM on 26 September 2006. The vehicle went up and down from Athens two or three times a day, carrying water, supplies, ammunition and personnel.

[18]An email from Captain Oliver of 1 November 2006 (so about two weeks before the accident) makes it clear that the Land Rover was not regarded as suitable for this task indefinitely. He recommended bringing in a Pinzgauer, which is a larger vehicle. I reject a suggestion made at one point on behalf of the claimant that Captain Oliver was predicting the imminent failure of the Land Rover. I am satisfied from the totality of the evidence that at the time of the accident such a vehicle was (and was regarded as) suitable to drive up and down the track, albeit not in the long term if carrying heavy loads. This track, though rough and in parts hazardous, was well within the capabilities of such a Land Rover.

[19]Of course, that does not mean that this particular vehicle was mechanically sound. The claimant’s case is that there was a lack of proper inspection, maintenance and servicing of this vehicle. Apart from the service on 16 August 2006, there were weekly inspections of the vehicle, most recently 8 November 2006. The claimant points to the fact that these did not record that the passenger seatbelt appears to have been inoperable, the front offside tyre was worn, and that complaints had been made about the steering. In their joint statement, Mr Bradshaw and Mr Beswick agreed there was a lack of proper inspection, maintenance and servicing, but in his oral evidence Mr Bradshaw said that this followed so far as he was concerned only because of the seatbelt. There is no consensus on this point therefore. Whatever their shortcomings, these weekly inspections might be expected to pick up major faults in the vehicle.

[20]The witness evidence as to the state of the vehicle also varies. The claimant relies on the statement to the Military Police dated 30 November 2006 in which Corporal Hewett said that “the vehicle appeared to be in a bad state. It seemed to have deteriorated through considerable cross-country use, in particular the steering”. In cross-examination, he said that he had reported this problem; it was “fairly common knowledge”. This was supported by Marine White, particularly as regards the steering.

[21]However, Corporal Hewett also said in cross examination that though slightly old, the vehicle worked and served its purpose. This reflects his witness statement in these proceedings, in which he says that although it was battered looking, it was ideal for the tasks it undertook, and could cope with the conditions of the mountain road with ease. I accept that assessment, but do not consider that much turns on the general condition of the vehicle, as opposed to particular faults that can be shown to exist.

[22]In that regard, in reliance on the evidence of Marines Hewett and White in particular, the claimant submits that there is clear evidence of a pre-existing problem with the steering at the time of the accident. The defendant on the other hand relies on the findings of Mr Henderson and Mr Bellamy, both of whom inspected the wreckage of the vehicle on behalf of the claimant in the course of this litigation. I set out their findings below, but in summary, examination of the steering mechanism so far as possible given the state of the vehicle after the accident revealed no evidence of excessive wear or play.

[23]In the absence of a working engine, the power assisted steering was inoperable. The steering wheel itself was missing, though a replacement was obtained for testing purposes. Mr Bradshaw’s evidence was to the effect that the presence of “light” steering reported by witnesses who drove the Land Rover is explicable by the difference between the feel of the steering in a Land Rover of this type, and steering in vehicles not designed for off road use. (As I say below, I have generally preferred the evidence of Mr Bradshaw to that of Mr Beswick.)

The offside front hub and swivel housing

[24]Particular attention at trial has centred on the Land Rover’s offside front hub and swivel housing. A failure in this respect could cause a loss of steering control of the vehicle. On inspection during the litigation, the expert witnesses noted that although the base of the offside lower swivel pin was in place, the pin itself had sheared off. A lot of the analysis at trial has centred on how this came about. As I shall explain when I review their evidence, Mr Beswick and Mr Bellamy initially considered that it was a fatigue fracture, caused over time. After the metallurgical examination showed that this was not the case, they formed the opinion that the swivel bearing preload was seriously degraded or totally absent prior to the accident.

[25]When he examined the vehicle, Mr Bellamy found that the offside swivel pin fixing bolts were missing. Mr Beswick’s opinion was that these bolts must have been removed a short period of time before the accident. The fact that they were missing, he thinks, may have been a contributory factor in the loss of bearing pre-load or may have been the originating cause. It is not disputed that the bolts could not have been removed after the fixing plate was bent (which was one of the things they found).

[26]It is convenient to set out my factual findings at this point in the chronological account. In his report of 17 May 2011, Mr Beswick expressed the view that the Land Rover had been worked on in a workshop, which he thought was at a forward base at the bottom of the mountain. He formed the view that the bolts were not put back into position when the swivel assembly was re-assembled. This ensured, he said, that the vehicle would fail when it was returned to use. He could not “imagine what would cause a skilled and competent mechanic to be so grossly negligent except and unless he was under extreme pressure to return the vehicle to use”.

[27]However, even on Mr Beswick’s evidence, the vehicle would not have been drivable for very long without the bolts fixing the lower swivel pin in place. He seemed to envisage the vehicle remaining drivable for a number of days. Mr Bradshaw, on the other hand, thought that the assembly would fail soon after the vehicle started to be driven.

[28]I prefer Mr Bradshaw’s evidence on this point. There is no evidence to support Mr Beswick’s view that in the period immediately preceding the accident the mechanical work that he indicates was done on the vehicle, or indeed any such work, was done. There are entries in the worksheet which show the vehicle in use on 9, 10, 11 and 12 November. It also made two journeys on 13 November. I regard the evidence of dirt clogging the bolt holes as neutral since it was observed so long after the accident. The evidence supports the alternative view, espoused by Mr Bradshaw, that the bolts went missing at some unknown time after the accident, perhaps having been cannibalised for spare parts.

The system as regards driving the Land Rover

[29]As I have explained, the claimant relies upon what is said to be a lack of appropriate systems for ensuring driving tasks were carried out only by those who were appropriately qualified. He himself was not qualified to drive.

[30]Before deploying, he (in common with other personnel) received OPTAG (Operational Training and Advisory Group) training, and the RSOI (Reception, Staging and Onward Integration) briefing in Afghanistan. Captain Oliver’s evidence is that it was made clear to troops that a full UK licence and a military driving permit called an FMT 600 licence is required to drive a military vehicle (including a Land Rover).

[31]The claimant relies on the evidence of Marines White, Ravenscroft and Fenton as suggesting that the OPTAG and RSOI briefings did not adequately convey this to the claimant and other marines. However, this evidence was not one-way. According to Marine Fenton, he was “aware you needed a FMT ticket and that this would identify what vehicles you could drive”. Whatever they may have understood, I accept the evidence of Captain Oliver as to the adequacy of the briefings in this regard.

[32]There is however also a dispute on the evidence as to whether any system which ought to have been operating to ensure that only trained and licensed drivers drove was in fact operating at the time of the accident, and this is also relevant as regards the claimant’s alternative case.

[33]The defendant’s case on the facts is as follows. The OPTAG briefing made clear that only those persons with a full UK driving licence and FMT 600 were authorised to drive. This was repeatedly reinforced by oral instructions on deployment. At Athens, predominately, the keys to the vehicle were kept in the Ops Room. Persons who required the keys would register their “zap numbers” with the radio operator who would then note the details of their task on a whiteboard known as the movement board. The radio operator would then give them the keys to the vehicle. Captain Kenny and Sergeant Owen (second in command) continuously emphasised that this procedure was critical to safety so that they knew where people were. While, on occasion, the keys would remain in the vehicle, in those circumstances safety was reasonably assured by the detailed briefings given on authorisation to drive pre-deployment reinforced after arrival in Afghanistan.

[34]So far as factual, this account is largely based on the evidence of Captain Kenny, and I accept it in broad terms. Although Corporal Hewett was the only authorised driver within the claimant’s section of eight men, the unit was an infantry type unit of foot soldiers with no specific need for a vehicle themselves. In all, there were about thirty men at Athens, and I accept Captain Kenny’s evidence that three or four of them held the FMT 600. On balance, I accept his evidence and that of Corporal Hewett that this was adequate for requirements. That said, there cannot have been much of a margin. As Marine Ravenscroft put it, “We were very restricted on manpower and resources. When jobs needed doing they got done.”

[35]However, as the claimant says, it is clear that Marine White drove the vehicle. He was older than the other Marines who gave evidence. But though he had a driving licence, he did not have an FMT 600. He said that he drove at least three times a week. Captain Kenny said that he was unaware of this, and Corporal Hewett said that he was not regularly driving. On the other hand, there is contemporary evidence that White drove on 10 November 2006, because he signed the worksheet. I accept that this was not the only occasion on which White drove the vehicle in the six weeks or so that 42 Commando had been at Kajaki, though this may not have been as often as two or three times a week. Generally speaking, I note that the worksheet does not appear to have been filled in for all the journeys that the vehicle undertook.

[36]As regards the enforcement of the system, in cross-examination Corporal Hewett said that he had previously told the claimant that he shouldn’t be in the driver’s seat of the Land Rover. I note however that this went further than his witness statement, which says that he was aware that the claimant did not have an FMT 600, and he never tasked him to drive. He says that he once saw him in the driver’s seat, though it was stationary with the engine off so he didn’t think anymore of it at the time.

[37]Finally, the claimant relies on a recommendation made in the LAIT (Land Accident Investigation Team) report of 22 December 2006 following the accident to “issue a directive to all units reminding them that only qualified drivers … holding an appropriately annotated FMT 600 are permitted to drive unless there is an operational imperative which requires the immediate movement of the vehicle”. (It is common ground that there was not an operational imperative for the claimant to drive the Land Rover on 13 November 2006.) The report goes on to recommend that a campaign be pursued “to ensure that units are aware of the requirements for all green fleet drivers to hold an appropriately annotated FMT 600 for each type of vehicle”.

[38]My factual findings on this issue are as follows. I do not accept the claimant’s case that the system encouraged people to drive without a FMT 600. Captain Kenny said that he enforced the requirement as much as he could. This was supported by Corporal Hewett’s evidence, and I accept it. However, it is clear from the work sheet that on one day at least Marine White drove it without an FMT 600 (he said he did at least three times a week). The fact that he entered the task on the work sheet leads me conclude, on the balance of probabilities, that the requirement that drivers needed to have an FMT 600 was not fully enforced. Captain Kenny clearly had many priorities, and in the context of the hostilities in which the troops were engaged, the drive up and down the secure track cannot have seemed especially notable. Also, as Ravenscroft put it, the Land Rover was a conventional vehicle, unlike (for example) a tank, and despite the obvious challenges of the track even for a skilled driver, driving the Land Rover probably did not appear too daunting. There is however no evidence of the vehicle being driven by someone who had neither an FMT 600 nor a driving licence, except the evidence (which I am coming to shortly) of the claimant driving it on 13 November 2006.

How the claimant came to drive the Land Rover

[39]Because of the effect of his injuries, the claimant himself has no recollection of any of these matters. He cannot even remember going out to Afghanistan. His case is that Captain Kenny knew that he volunteered to drive the Land Rover down the mountain on the evening of 13 November 2006, and was happy for him to do so. The evidence is as follows.

[40]On the afternoon of 13 November 2006, Marine White says that he and the claimant had taken the Land Rover to the compound at the bottom of the mountain to take water back up to the Athens observation post. As they loaded the vehicle, White says that the claimant (who as Lance Corporal was a more senior rank to White) asked him if he could drive back up. At that time, White says that he knew that the claimant did not possess a UK driving licence, but from previous experience of his driving in the UK felt that he was competent, and gave him the keys. He accepted that he was wrong to do this, and I am satisfied that both he and the claimant knew that the claimant should not have been driving the vehicle.

[41]Marine White says that on the way up, the claimant drove at a speed which was excessive, so he asked him to keep the speed down, and for the rest of the journey, he says that the claimant drove reasonably satisfactorily.

[42]Later that afternoon, Captain Kenny needed someone to go down to the base to bring up three people. By then, it was about dusk, a time when the post was particularly vulnerable to insurgent attacks. Kenny said that he shouted out for a driver, by which he meant a qualified driver, to take the vehicle down. There would have been about thirty people at the post, at that time, and there were about three marines with a military driving permit. He said he would not have expected the claimant to volunteer for the task, because he was not a qualified driver.

[43]Corporal Hewett said that he heard Captain Kenny asking for volunteers and heard the claimant respond to that request, knew the claimant could not drive and “initially waited to see if he would attempt to drive down there but then I heard another voice saying they would also go. Upon hearing the second voice I assumed the claimant would not attempt to drive and the other person would”. He maintained this account in cross-examination, saying that he expected the claimant to go on the task, not to drive. On the other hand, as the claimant points out, if the second voice was that of Fenton, he too did not have an FMT 600.

[44]Captain Kenny’s evidence is contradicted by Marine Ravenscroft. He said that he, the claimant and Marine Fenton were having some downtime, when Captain Kenny approached the group and asked if there were any volunteers to drive to the bottom of the hill. None of them had military permits. However, they all volunteered, and Captain Kenny said they would have to “spoof” for it by way “rock, paper, scissors”. (The evidence was that a drive down the mountain was generally welcome, since it got people to base where there were proper facilities, not least showers.) Marine Ravenscroft said that he lost, and he went back to his sentry duties.

[45]Mathew Fenton gives a somewhat different account. He says that he had been checking his emails during downtime, and when he finished he found the claimant standing by the Land Rover. The claimant said that he needed a volunteer to go shotgun with him to the base of the hill, because he had been asked to go and collect two men. I do not accept the claimant’s submission that Fenton was getting confused with the journey earlier in the day, and this evidence has to be weighed with the other evidence.

[46]In his statement to the Royal Military Police on 15 November 2006 and so just two days after the accident, Captain Kenny said that he requested a driver to carry out the task, and the claimant “volunteered himself to drive and Marine Fenton volunteered to go as support”. He adds that he believes they were wearing their Osprey body armour, but not their helmets. In his oral evidence at trial, he said that this was what he had learned afterwards. He says the same thing at the end of the statement (the sentence refers to the armour, but can be fairly read as covering the “volunteer” passage as well.)

[47]However, Captain Kenny also said in his RMP statement that had he known at the time that the claimant may not have been licensed to drive a Land Rover (in other words in possession of an FMT 600) and may not even have had a UK driving licence, he “would not have permitted him to drive the vehicle”. The implication is that, contrary to his evidence at trial, Captain Kenny did permit the claimant to drive the Land Rover down that evening. He accepted that this was confusing, but maintained that he did not know that the claimant had carried out the task until later on.

[48]This is a difficult factual conflict to resolve, because as I have already indicated, I regard Major Kenny, Corporal Hewett, and Marines Fenton and Ravenscroft as honest and careful witnesses, albeit they were trying to recall events nearly six years earlier. As noted already, I am satisfied that driving the Land Rover up and down was not regarded as a particularly difficult or unusual task, and Captain Kenny had more pressing concerns in the light of expected attacks. The evidence suggests that the claimant himself would have wanted to drive.

[49]On balance, since it is not supported by Mathew Fenton’s account, I do not accept that Captain Kenny asked the three of them to “spoof” for it. I find that he simply shouted out for a driver. There is no suggestion that he ordered the claimant to drive the Land Rover down to base, which he plainly did not. But on balance, I find that Captain Kenny permitted him to do so, because this is what he told the Military Police shortly after the event when his recollection would have been much fresher. The whole thing was probably over quickly.

The accident

[50]The Land Rover set off down the track with the claimant driving, and Marine Fenton in the passenger seat. They were wearing body armour, and neither had their seat belts fastened. There was evidence to the effect that the body armour made the wearing of seatbelts uncomfortable, and it appears that the passenger seatbelt was not operational. (However, it is common ground that the wearing of seatbelts would not have made any difference in this case because of the nature of the impact in which the vehicle landed on its rear.)

[51]There is varying evidence as to whether it had recently rained. If it had, this does not appear to have a major effect on the surface of the track. The Land Rover negotiated the first and most difficult part successfully. It reached a point at which (as the photos show) the track is on a gentler gradient, and is approximately the width of two vehicles. To the left, going down, is the mountain, and what appears from the photos in parts to be a very rough, low wall made of stones. To the right, there is again in parts what may be a rough, low wall of stones, though it is hard to tell from the photos whether it is a wall or just rocks at the edge of the track. Then the land drops away to a lower track which runs along the Helmand River.

[52]It is not in dispute that as he drove down this stretch of track, the claimant lost control of the Land Rover. The principal dispute in this case is whether the cause was mechanical failure or driver error, and I will have to come to a conclusion in this respect. Unlike the claimant, Marine Fenton can remember the accident, and his evidence is important as that of the only other person directly involved.

[53]In his statement to the Royal Military Police of 5 December 2006 he said that it was the first time he had been driven by the claimant, and seemed to be driving fine: then “… the vehicle had a bit of a slide to the right and then caught something, whether we hit something in the middle of the road or at the side, this caused the vehicle to turn about 90 degrees to the right and because the vehicle was still in a forward motion, this propelled us towards the edge of the mountain range and all I can remember is the vehicle tipping forward and all I could see was the bottom of the mountain. I do not remember anything after this moment.”

[54]In his witness statement in this action he gives a largely consistent account, saying that the claimant “seemed to be driving fine and had no reason to cause me any concern”. He did not know that the claimant did not have a driving licence, and says that everybody should have an FMT 600 to drive a military vehicle.

[55]He says that:

“Suddenly and without warning, I heard a loud noise, a ‘bang’ on the right hand, driver’s side which sounded like an impact noise to the rear of the vehicle. I do not believe it was caused by a burst tyre. The vehicle then started to slide to the right and Tom lost control. I suspect Tom may have tried to over compensate the steering, however the Land Rover then caught something, whether we hit something in the middle of the road or at the side, this caused the vehicle to spin clockwise about 90o to the right. As the vehicle was still in forward motion, this propelled us towards the edge of the mountain range. I then recall a second massive ‘bang’ which was probably the engine block going over the edge of the mountain, and all I can recall is the vehicle tipping forward and all I could see was the bottom of the mountain. We then went over the track and down the steep incline and I do not remember anything after that until 1 week or so later.”

[56]He said in cross examination that he had been a passenger in the Land Rover several times, but was not driven by the claimant until the accident. He didn’t know that the claimant had no licence. He said that they had been driving for 5-10 minutes, and had finished the particularly difficult rocky section of the track. He said that everything happened quickly. He heard a loud noise, a bang on the right hand, driver’s side, which sounded like an impact noise to the rear of the vehicle. Then he could see the claimant battling with the steering, trying to compensate for the error that had occurred. (I accept however the claimant’s submission that that he was using the word “error” in a neutral way.) There was no conversation between them. It felt, as he put it, like the back of the Land Rover “went out”.

[57]He was asked about the results of the military investigation to the effect that the vehicle struck the stone wall on the left hand side of the road. He said he didn’t know whether that had happened, but there was certainly an impact. It was put to him that the claimant was trying to control the vehicle, but over steered, which caused him to lose control. That, Fenton said, was a reasonable assumption. Having over compensated, there was another impact, and the vehicle went over the edge. He said that he thought that was also a reasonable assumption.

[58]From whichever cause, mechanical defect, or driver error, the vehicle turned to the right and went over the edge. At that point, the drop is 100 feet or more down a steep rocky slope, which becomes vertical towards the bottom. Near the bottom, the vehicle is reported to have clipped some power lines, which may or may not have affected its descent. It landed rear first, upright, positioned across the lower track, and facing the mountain.

[59]According to Captain Kenny’s statement to the Royal Military Police, at about 17:17 hours a radio message was received from American security personnel working at the dam that an accident had occurred. I infer that the accident occurred shortly before that time. Help soon arrived, and the claimant and Marine Fenton were got out of the vehicle unconscious, or semi-conscious. The claimant had to be cut out. They were taken away by helicopter at about 18:30 hours.

[60]The following morning Captain Kenny closely inspected the part of the track where the Land Rover had gone over the side. In his diary, he recorded (probably some days afterwards) that, “It can only be thought that the LR was driving just too fast on the straight but treacherous track leading down to the OMLT compound. The site was barely visible but the impact site left of the track was visible (a broken wall) and you could see where the LR left the track having over steered to avoid that first contact of the wall on the left. The LR bounced down the cliff some 50-60m and was somehow caught in the power cables to the base of the cliff which reduced the fall of the LR and flipped it upright onto its back wheels!??!”. In his oral evidence, he repeated that he had seen signs of a collision between the Land Rover and the wall on the nearside as it was driven down the track.

[61]Late on the afternoon of that day (14 November 2006), Sergeant Turnbull who was serving with the RMP as a Crime Scene Investigator attended the scene. He appears to have been less definite than Captain Kenny had been. In his notes he wrote:

“16:55 Arrived at the area above vehicle and established the point at which it left the track. Photographs recorded. There is no clear path that the vehicle has taken to leave the road and no apparent reason ie ruts/rocks on road etc.”

[62]Subsequently, the LAIT report into the accident said that, “It can only be concluded that this accident occurred because an unqualified driver was driving too fast for the prevailing conditions on a route that was, at best, described as marginal.”

[63]In contrast with these contemporary conclusions, the accident reconstruction experts in this litigation are in agreement that there is no evidence to support the conclusion that the accident occurred because the claimant drove at excessive speed. As I shall explain, at least in their oral evidence, they took a different view however as to the possibility of a collision with the wall on the nearside.

[64]The claimant was the more seriously injured, and his parents describe in their statements being notified of the accident, and in circumstances that were traumatic, flew out to Oman were he was briefly hospitalised on his way back to England. I have not heard evidence at this liability-only trial as to his subsequent progress, but note that he appears to have shown real courage in seeking a recovery.

[65]Shortly after the accident, the wreckage of the Land Rover was moved to Camp Bastion where further photos were taken. The evidence is that it was then taken by civilian contractors through Pakistan and shipped out of Karachi. It was eventually brought back to England, though it is not clear when it arrived. In view of certain allegations that have been made in this case, I will have to say more about this later. These proceedings were not begun until 2 November 2009. The vehicle was inspected in 2010 and then (after a change of expert on behalf of the claimant) again in 2011.

The expert evidence

[66]Since the central issue in the case has been whether the loss of control of the vehicle was (as the claimant submits) caused by mechanical failure, or (as the defendant submits) caused by driver error, the expert evidence has been crucial in this case, and it is necessary to say something about the experts, and how their evidence developed, as well as their opinions. The evidence became complicated by the volume of reports, and I am grateful to counsel for the parties for having prepared an agreed summary. I intend to deal with them chronologically.

[67]The metallurgical examination was relatively straightforward. So far as accident reconstruction was concerned however, it was clearly not an ideal situation, because the experts were expressing their opinions long after the accident, and the vehicle was in a wrecked state with parts missing. They did not see the site themselves, and although there are many photographs, Captain Kenny said that they do not always convey an accurate impression, and there has been disagreement in certain significant respects as to what they do show.

[68]After proceedings were begun at the end of 2009, the claimant appointed as his expert Mr Stephen Henderson, a forensic engineer specialising in the investigation of road traffic accidents. He examined the wreckage of the Land Rover on 18 August 2010. His report is dated 10 January 2011, and it seems to have gone through a number of drafts. In summary, within the constraints of the damage, he found no defects with the parts of the vehicle that were available that may have caused or contributed to the causes of the incident. His conclusions were however limited by the absence of both front wheels and other missing parts.

[69]He did not understand how the author of the LAIT report was able to determine that excessive speed played a part. He had seen no evidence from which the speed could be determined. He concluded that the damaged nearside front corner of the vehicle was consistent with it striking a wall or rocks. Equally, it could have been caused by contact with the ground. He noted Fenton’s account of hearing a bang to the driver’s side at the rear and the vehicle spinning 90 degrees clockwise. He thought the bang could have been the vehicle striking an object on the track or a wall on the nearside.

[70]He found the lower swivel pin on the offside was broken. If this failed while the vehicle was being driven, steering control on the offside front wheel would be severely compromised. Such an event would be likely to cause a driver to lose control and the wheel could separate from the vehicle especially in off- road conditions. His opinion was that the damage to the swivel pin was more likely to be the result of excessive loading to the wheel rather than a cause of the initial loss of control. (At trial, I note that this has been a point of contention between the parties.)

[71]He had not examined the front wheels and tyres. If the tread condition of the front offside tyre was very poor, grip between it and the surface of the track might have been compromised and this could have had a causative or contributory effect. He found no other mechanical defects that might have contributed to the accident. He did not find evidence of excessive play in the steering. He noted the witness evidence of slack steering, and could not account for the discrepancy other than to suggest it was possible that such reports resulted from unfamiliarity with off-road vehicles.

[72]He thought the vehicle was capable of negotiating the track. Drivers should have off-road training. In the absence of evidence of mechanical defects and if the condition of the track was not a factor, driver inexperience and/or error seems a likely factor. Off-road training would have reduced the risk had the driver driven in accordance with the training. Mr Henderson concluded that there was insufficient physical evidence to reconstruct the incident.

[73]Overall, this report was adverse to the claimant’s case, and he no longer relies upon it. Mr Henderson has been replaced as expert by Mr Beswick. Mr Henderson was not called at trial, but the defendant relies upon his evidence under CPR r.35.11. Mr Louis Browne, counsel for the defendant, accepts that only a limited amount of weight should be given to it, but it is relevant, he submits, particularly because Mr Henderson found no mechanical defect causative of the accident. It is also relevant in explaining how the expert evidence developed, which is an issue in this case.

[74]On its part, the defendant instructed Mr Daniel Bradshaw, who is an engineer, a collision investigator and a vehicle examiner. He examined the vehicle on 7 August 2010. He found a small amount of free play in the draglink ball joint but thought this would have little or no effect on the steering. Based on the coefficient of friction for a crushed rock road the difference between a dry or damp track would have made little or no difference. Mr Bradshaw thought that the lack of contributory defects points towards the cause of the collision being due to driver error and that from the limited information available, his opinion was that excessive speed may have played a part. Mr Bradshaw re-examined the vehicle on 13 January 2011 with an ignition key available. Full lock to lock rotation was possible and no steering faults were found. The recorded free play figures were well within tolerance. He concluded there was no evidence that any mechanical component had been defective before the accident and no mechanical defect or failure contributed to the accident.

[75]The claimant’s present expert, Mr Paul Beswick, is a retired Road Traffic Officer, having served in the Derbyshire Constabulary. He specialises in the investigation and reconstruction of road traffic accidents and incidents. On 21 February 2011, he produced for the claimant an initial accident investigation report, which at that stage did not include an examination of the vehicle.

[76]In it, he concluded that there was no evidence to support the conclusions in the military reports that the claimant was driving too fast and that the vehicle hit a wall on the left. He considered that the account given in the statement of Mathew Fenton was highly significant and indicative of mechanical failure on the offside causing a sudden and catastrophic change in direction. He also noted the accounts of Marines White and Ravenscroft, who described a poorly maintained and overused vehicle with a steering fault.

[77]Reviewing the photographs, Mr Beswick noted increased wear on the front offside tyre and that markings on the surface of the track might indicate that the front offside wheel was not facing the direction of travel. He thought it significant that a number of drivers who had been driving the vehicle had not received 4x4 training as this increased the risk of excessive wear to the tyres, steering, transmission and suspension.

[78]He thought the lower track where the accident occurred was not at all challenging. Any rocks which may fall onto the track would be clearly visible and avoidable. He concluded that the damage to the vehicle and the absence of a distinct landing point indicated that excessive speed was not present and so was not a contributory factor in the accident. He suggested that the photographic evidence of significant rapid and abnormal tyre wear suggested a pre-existing defect affecting the front offside of the vehicle, possibly a steering defect but probably multiple defects. He advised that the vehicle should be inspected again, and that he would expect to find a steering fault, defective suspension, defective drive components or any of these in combination. He expected an examining engineer or metallurgist to be able to establish which components failed prior to the crash. He said that Captain Oliver had predicted that the vehicle would fail, and it had failed and would have failed whoever was driving it. However, he highlighted the importance of proper training to drive safely in off road conditions.

[79]By a further report dated 23 February 2011, Mr Beswick wrote a highly critical assessment of Mr Henderson’s report. Mr Beswick was subject to cross-examination going to his own credibility as an independent expert, and I shall return to this.

[80]The further examination recommended by Mr Beswick took place on 7 April 2011. Mr Beswick is disabled, and was accompanied by Mr David Bellamy, who is an automotive engineer, and his associate. Mr Bellamy himself produced a report dated 17 May 2011, and though parts of his report have been deleted by way of striking through in red, he has in effect been a further expert giving evidence on behalf of the claimant.

[81]Having examined the steering mechanism from steering wheel, steering column, steering box, drop arm, drag link, nearside swivel hub and track rod ends, Mr Bellamy could find no evidence of any excessive wear or play in those components. Examining the nearside front swivel hub, he did not detect any excessive play in the spherical housing containing the upper or lower swivel pin bearing and he could feel that they had adequate preload.

[82]He carried out an examination of the offside front hub and swivel housing, which has subsequently played such an important part in the analysis in this case. The retaining plate was bent over towards the top swivel pin. The top brake calliper securing bolt was missing. The brake disc cover was bent over the bottom swivel pin securing bolts position. When this was removed, the bottom swivel pin securing bolts were found to be missing. This fact had not been recorded by any previous vehicle examiner. He also noted that the circlip and shim were absent from the end of the constant velocity joint.

[83]The broken bottom swivel pin was cleaned with a wire brush and removed from the assembly. It was noted that a burr had formed when the pin fractured which faced towards the offside of the vehicle. The broken bottom swivel pin, the oval shape in the lower bearing cup aperture, and the absence of the bearing cup indicated to him that the top and bottom swivel pin taper bearings were worn to such an extent that the preload had been diminishing over a period of time before the accident. Mr Bellamy concluded that the swivel pin had suffered a fatigue fracture due to multiple impacts.

[84]Mr Bellamy opined that a vehicle which suffers from a lack of preload in the swivel pin bearings due to wear will exhibit and give the driver the sensation of excessive steering wheel free play and there will be accelerated front tyre wear and accelerated loss of lubricant.

[85]Mr Beswick himself produced a further report also dated 17 May 2011 following the examination. He analysed marks on the road surface as seen in photographs taken by the military police which appeared to show the path of a wheel leaving the track with absence of directional control. Considering a close up photograph of the front offside tyre, he noted it was almost devoid of tread. He also noted that grease had been deposited onto the outer wall edge and across the tyre, showing the wheel was rotating when the grease was deposited and had remained in the arch until after vehicle came to rest.

[86]From photographs taken at the scene, Mr Beswick concluded that the vehicle damage showed lateral nose roll; that there was no evidence of contact with the cliff face on the nearside and no substantial force from the front.

[87]Upon inspection of the vehicle, Mr Beswick noted significant post accident damage which he concluded had been done deliberately and that significant evidence had been altered or destroyed as a result. The damage now evident on the vehicle would appear to indicate a substantial frontal impact on the offside wing into a vertical object and a full or partial roll-over. As a result of the additional damage, accurate deformation measurements could not be obtained from the vehicle body. He was cross-examined as to credibility on this part of his report, and I will deal with it below.

[88]Mr Beswick noted that the offside swivel pin fixing bolts were missing and that dirt in the holes suggested they were missing when the vehicle was last driven. He concluded that these bolts must have been removed a short period of time before the accident. (I have dealt with and rejected above this conclusion, and need not repeat the points already made in that respect.)

[89]He noted that a burr on the broken pin indicated the direction of final failure was towards the offside of vehicle. The bottom of the pin had collapsed outwards. He thought that the damage to the broken pin appeared to show numerous impacts but that it should be examined by a metallurgist to confirm his observations. He concluded that failure of the swivel pin and bearings was guaranteed when the fixing bolts and seal were omitted and that failure of these components made it inevitable that the wheel would detach from the drive shaft and would result in loss of control of the vehicle.

[90]He thought that the lower swivel pin displayed multiple impact marks which could not have been caused in a collision but were caused by pounding when the pin was free to move, within the bearing and housing causing a fatigue fracture. He felt there was no doubt that the vehicle veered off the track because of a mechanical failure to the offside lower swivel pin and bearings which caused the swivel housing and wheel to detach. He advised that the passenger’s description of a bang represented the wheel detaching and that he gave a good description of the offside wheel turning from one direction to another.

[91]Mr Beswick concluded that the Land Rover was unsuited to the task because the conditions and frequency of use would inevitably lead to failure and that the vehicle was in a dangerous condition at the time of the accident.

[92]By a report of 16 September 2011, Mr Bradshaw reviewed the evidence of Mr Henderson and Mr Beswick. He agreed with Mr Henderson that damage to the steering and suspension components was likely to be a result of collision forces rather than the cause of the driver’s loss of control. He agreed with Mr Henderson that the force applied to the swivel pin was predominantly rearward but noted some outward movement also. He agreed that this could not have occurred while the vehicle was moving in a forward direction since whilst the vehicle is moving forward the forces applied to wheel and swivel hub are from front to rear. He reiterated that no contributory mechanical defect had been found by Mr Henderson or by him. He said that he was of the same opinion that the lower swivel pin had sheared as a result of excessive force. The sheared surface of the pin was indicative of a rapid failure, and was not a fatigue fracture. There was no evidence to suggest wheel bearing or swivel bearing failure. The physical evidence suggested that the swivel housing did not become detached while the vehicle was moving along the track. It was more likely to have become detached slightly before or when the vehicle came to rest. The road marks were not consistent with a serious mechanical defect. The bolts could not have been missing when the vehicle was driven as the pin would simply have fallen out due to gravity (he qualified this in cross examination to the effect that it would have fallen out very soon after the vehicle started to move). There was no reason why the bolts could not have been removed afterwards to be recycled.

[93]Following these reports, the parties instructed metallurgists to analyse the broken swivel pin. Mr Broadhurst (for the claimant) and Mr Newbury (for the defendant) did so in reports produced at the end of January 2012. They were good witnesses, who approached their task independently. By the end of the trial, they were in agreement as to most matters. The swivel pin failed as a result of an instantaneous, single event overload in shear. There was no evidence of a progressive failure mechanism such as fatigue. There was nothing to suggest that the pin contained any pre-existing cracks or was significantly worn at the time of the accident. The load to cause failure was predominantly left to right (relative to sitting in the driving seat facing forwards). The direction of loading is consistent with the bottom of the offside wheel being forced over to the right. How the wheel came to load the pin in this way is difficult to establish given the uncertain way the wheels may have been loaded in the accident. Deformation of the lower bearing seat occurred in the same loading event that caused the lower offside pin to fail. There was no evidence of wear.

[94]As their oral evidence made clear, the metallurgists differed as follows. Mr Newbery was of the view that it was more likely that the pin failed when the Land Rover was falling down the cliff than when it was on the track, though he did not exclude the latter possibility. Mr Broadhurst thought that both were possibilities, but deferred to the accident reconstruction experts.

[95]Mr Newbery abandoned in his oral evidence a supplementary written opinion he had given to the effect that it could be demonstrated mathematically that it was impossible for the fracture to have occurred on the track. He accepted that there were too many invariables to support his calculations, though his opinion remained the same.

[96]In the light of the metallurgists’ conclusion that the fracture was not a fatigue fracture as he and Mr Bellamy had thought, Mr Beswick produced a further report dated 10 February 2012. He noted that wire brushing by Mr Bellamy had destroyed microscopic primary evidence and was critical of Mr Bellamy for doing this but accepted responsibility for failing to supervise him (he was cross-examined as to credibility in this regard, which again I shall deal with below).

[97]Mr Beswick noted that metallurgical examination showed the fracture was caused by a single event ductile overload under shear. Such examination confirmed that the bottom of the wheel came outwards and that the direction of damage appeared to show that at the moment of collapse the offside wheel not facing forward but was deflected to the right.

[98]He explained the impact of loss of preload. He noted that the witnesses described a worsening steering fault; the tyre was abnormally worn and other possible causes had been eliminated, leaving loss of preload as the only possible cause.

[99]Mr Beswick concluded that the swivel bearing preload was seriously degraded or totally absent prior to the accident. The missing swivel pin bolts may have been a contributory factor in the loss of bearing preload, or may have been the originating cause. (He also thought the missing wheel circlip and spacer may have been the cause of the accident or a contributing factor in the loss of the bearing pre-load and that the missing locking nut and cotter pin on the vehicle A frame may have been a contributing factor in loss of vehicle control or may have caused loss of stability. These latter points were not pressed in submissions.)

[100]His opinion was that on the balance of probability, the claimant drove onto an area of bedrock; the already weakened swivel assembly was caused to fail; the pin sheared, causing the sound heard by Fenton and the wheel was forced to collapse and deflect to the right. This caused the nearside wheel into a right deflection which would place both front wheels into a full right turn. This would the cause the rear to slew immediately and violently clockwise. This was exacerbated by the reduced stability caused by the unfixed A frame and the naturally slippery bedrock surface. The road marks showed that the offside wheel was uncontrolled and that the vehicle rode over the small retaining wall at the side of the track.

[101]In his supplementary report of 18 June 2012, Mr Bradshaw agreed that a loss of preload would place more loading on the swivel pin but said that it would still take a significant impact or load to the offside front wheel to shear the swivel pin and damage the swivel pin bearing housing. He reviewed the photographs, concluding that an object identified by Mr Beswick within the offside front hub was simply a reflection and that he could locate the swivel bearing a short distance from the vehicle. He suggested this provided evidence that the hub had not separated from the front axle on the upper track. He concluded that the missing pin bolts or lack of lubrication would not have been contributory factors. He suggested there was no evidence of loss of pre-load. The missing locking nut on the axle A frame could not have been a contributory factor. Had the wheel detached as described by Mr Beswick, there would have been clear gouge and skids marks on the track. Had the front offside wheel driven over the bedrock there would have been evidence of the rocks and shrubbery being disturbed on the nearside. Mr Bradshaw did not believe that loss of preload would result in failure of the pin whilst the vehicle was driving along the track. He concludes that the swivel pin is likely to have sheared during the lateral nose roll. It could not have sheared when the vehicle came to rest as there would not have been enough force transfer on to the pin at this point as a result of a cushioning effect due to landing on its rear. He maintained his opinion that there was no evidence to indicate that there was a mechanical defect that would have contributed to this collision.

[102]In a further supplementary report of 19 June 2012, Mr Beswick took issue with Mr Newbery’s calculations which he said could be applied in the way that Mr Newbery had done. Considering the calculations, he advised that 13 to 14 tonnes would be an unremarkable force on vehicle steering or suspension parts. Using Mr Newbery’s theoretical model, he calculated that centripetal force could account for forces exceeding those required to shear the pin in normal driving conditions. Alteration in acceleration, braking, steering and suspension will increase the forces. The additional metallurgical evidence did not cause him to change his opinion. Mr Beswick accepted in cross examination that his centripetal force calculations were wrong. In fact, this subject area fell outside his expertise, and he should not have been expressing an opinion on this part of the case at all. In fairness to him, however, it should be noted that he correctly surmised that Mr Newbury’s calculations could not be validated.

[103]As regards the metallurgical evidence, by June 2012, hardness testing had confirmed that the pin met Land Rover specifications. The force required to cause a shear failure of the pin was equivalent to the force applied by gravity of a mass of 9960kg (which is about ten tons). It is common ground that this is a strong component.

[104]It is clear that Mr Beswick and Mr Bradshaw found it difficult to agree a joint statement, but eventually did so on 26 June 2012. The claimant in particular places reliance on its contents. At trial however, Mr Bradshaw in effect withdrew or qualified his agreement to certain parts in the light of the evidence (he was the final witness). I should note that although it is stated in a passage attributed to Mr Beswick alone that “we have agreed that … the two lower swivel pin fixing bolts were not fitted when the vehicle was last driven” (something repeated in the summary of the expert evidence prepared by counsel), I am satisfied that no such agreement existed, and that Mr Bradshaw had insisted that this passage come out of the agreed part (which it had).

[105]Just before trial, Mr Beswick produced a further undated report to the effect that he had looked again at the photographs taken after the accident, and was of the view that marks in the track indicate that the wheel was not subject to steering control, which would indicate that the swivel assembly had already separated whilst the Land Rover was on the track. I note that this report was not seen by the defendant’s solicitors until the morning of the trial (16 July 2012). He himself said in cross-examination that the road markings were only a “small part” of his evidence. Mr Bradshaw said that he was unable to see the marks that Mr Beswick said he discerned in the photos, and I have to say that I do not think that this late evidence was very cogent.

[106]The only expert whose credibility was seriously attacked at trial was Mr Beswick, and I must deal with my conclusions in this respect. First, on a positive note, he produced reports of exceptional thoroughness, and clearly went to great pains to analyse the points that he felt were important. His work was well presented, and he produced a video demonstration of the swivel housing on the vehicle that has been helpful in understanding how the components fitted together.

[107]However, it is necessary to consider the points upon which the defendant relies in submitting that his objectivity is very seriously called into question in this case, and that his evidence must be treated with caution.

[108]At the time of his assessment dated 23 February 2011 of Mr Henderson’s report, Mr Beswick had not inspected the vehicle. Nevertheless, he felt able to describe Mr Henderson’s report variously as spurious, ridiculous, and misleading “the client” (despite the fact that both he and Mr Henderson had a duty as independent experts to the court). He speaks of a “lack of diligence and observation”, “negligence or incompetence”, and “substantial or significant failures”. In his conclusion, Mr Beswick expresses the opinion that Mr Henderson’s “investigation and report is of such poor quality and so lacking in relevant and available facts, it goes well beyond a ‘lack of ability’ and falls far short of due diligence. It is much more difficult and time consuming to lose, ignore or hide evidence, and I am at a loss to understand how this was achieved by Mr Henderson”.

[109]In cross examination, Mr Beswick did not attempt to justify his allegations that Mr Henderson had “hidden” evidence, saying that the criticism was “too sharp”. In fact, it was a baseless allegation that should never have been made, and I accept the defendant’s submission that it reflects badly on Mr Beswick’s credibility as an independent expert witness. Generally, it is to be noted that he criticised Mr Henderson’s conclusion that the lower swivel pin failed due to an impact, saying was that it was clearly a fatigue fracture. In due course, the metallurgical evidence showed that Mr Henderson was correct.

[110]The next matter relied upon by the defendant concerns Mr Beswick’s view that the evidence has been tampered with. In their joint statement, Mr Beswick and Mr Bradshaw agreed that the vehicle had sustained additional non-accidental damage after the accident. Some of the additional damage would serve no useful purpose (for example for spares), though an inexperienced investigator might consider that it indicated that the vehicle rolled during the accident which would indicate a higher speed accident. In his oral evidence however, Mr Bradshaw pointed to the fact that the wreck of the vehicle had been transported from Afghanistan, through Pakistan, and back to England, and there were all kinds of innocent explanations for the additional non-accidental damage.

[111]In his oral evidence, Mr Beswick stood by the following passage in his report of 17 May 2011:

“In my opinion, there has been a concerted effort to hide the facts of this accident from independent examination. In 35 years of investigating accidents in criminal and civil cases, I have never experienced such tampering and misdirection as I have found in this case”

. In his oral evidence, he made it clear that he was alleging perversion of the course of justice. However, he said he couldn’t say whether there had been a conspiracy, and was not accusing the Ministry of Defence as such, or those at Kajaki, but rather individuals who he could not identify. As he put it, the “tampering” was not sophisticated and he had seen much better efforts. He described it as “amateur, but thought through”.

[112]The allegation depends upon the fact that the photos of the vehicle supplied by the defendant show differences in the state of the vehicle as it was in Camp Bastion where it was moved shortly after the accident, and its state some years later when it was inspected in England. In his evidence on this issue, Mr Bradshaw pointed out that in those circumstances it was difficult to see what any “tampering” could be thought to achieve. Further, it did not add support to the defendant’s conclusion that the vehicle had struck the wall on the nearside, since the additional damage was to the offside wing. I should state the claimant does not invite the court to find that there was tampering, since it is not necessary to decide the case. In fact, there was, in my view, no evidence to support Mr Beswick’s allegation. Again, I accept the defendant’s submission that this affects his credibility.

[113]Finally, when the metallurgists inspected the broken swivel pin to assess the nature of the fracture, it was apparent that it had been cleaned. This, to quote Mr Broadhurst, removed any fine detail that may have permitted a positive identification of the fracture mechanism. The cleaning had been done by Mr Bellamy in the course of his examination with Mr Bradshaw in April 2011. Mr Bellamy describes the process in his report of 17 April 2011, which is annexed by Mr Beswick to his report of the same date.

[114]However, in his report of 10 February 2012, Mr Beswick says that:

“This wire brushing is reprehensible and was not expected of such a skilled and experienced engineer. It is not unheard of for one small component to contain the microscopic evidence needed to indicate the cause of an accident and the loss of this evidence would be incalculable! I have reminded Mr Bellamy, as did Mr Broadhurst, of the need to preserve evidence in its original form.”

He goes on to say that, “For my part, I must accept that this was a ‘failure to supervise Mr Bellamy’ and offer my apology to the court and the MOD”.

[115]This criticism of Mr Bellamy is not readily comprehensible. Mr Beswick was present at the time, and according to Mr Bellamy must have seen him do the cleaning, which is in any case described in the annex to Mr Beswick’s report. In fact, it may be that not much was lost by way of evidence. Again however, I accept the defendant’s submission that this reflects adversely on Mr Beswick’s credibility.

[116]Nevertheless, in her impressive submissions on the claimant’s behalf, Ms Amanda Yip QC submits that ultimately resolution of the issues must depend upon whether or not the evidence supports the expert’s conclusions, and this I accept. Further, I accept that valid criticism can also be made of Mr Bradshaw in that his initial report only dealt with the mechanical state of the vehicle, though he appears to have thought that that was all he had been asked to consider. Generally, however I consider that the evidence of Mr Bradshaw was more cogent than that of Mr Beswick. Although he does not have Mr Beswick’s experience as an accident investigator, his evidence appeared to me to be more soundly based on the facts.

Discussion and conclusions as to the mechanical defect issue

[117]In summary, Mr Beswick’s conclusion is that the steering on the vehicle was defective at the time of the accident. There was a loss of swivel bearing preload on the front offside wheel. As the vehicle was driven along the track, the offside swivel assembly failed, shearing the lower swivel pin. As a result, directional control of the wheel was lost causing the claimant to lose control of the Land Rover and leave the track.

[118]Mr Bradshaw concludes that there is no evidence to indicate that a mechanical defect contributed to the accident. There is no evidence that the swivel pin failed on the track and it is more likely that the swivel pin sheared as a result of excessive force being applied to it as the Land Rover struck an object while falling down the cliff.

[119]It can be seen from this summary that the point at which the fracture occurred is of great importance. The defendant says that if it did not happen while the vehicle was being driven, it is fatal to the claim.

[120]There are many points raised in the expert evidence, but these were narrowed to the relatively few points identified by the parties in their written and oral closing submissions. I set these out below. The burden of proof lies on the claimant to establish his case on the balance of probabilities.

[121]The claimant asserts that there is clear evidence of a pre-existing problem with the steering at the time of the accident. I have dealt with the facts in this respect above. I agree that there is such evidence, and it tends to support the claimant’s case. But it is balanced to some extent by the evidence that it is explicable by the difference between the feel of the steering in the Land Rover and steering in other vehicles. Further, the vehicle was subject to weekly checks which would have been expected to pick up such a potentially important defect had it been significant. Finally, upon examination, no mechanical defects were found that would account for lightness of the steering. A complete loss or significant diminution of preload would (as Mr Bellamy said) give the driver the sensation of excessive steering wheel free play, but on the evidence, I do not consider that a significant pre-existing problem with the steering has been established whether for this or some other reason.

[122]It is agreed that there was significantly more wear on the front offside tyre than on any other tyre. Sergeant Turnbull noted during his vehicle examination that the driver’s side front tyre appeared to be very low on tread. If the condition was sufficiently poor, this could have been a contributory factor to the accident. However, on balance I accept Mr Bradshaw’s evidence that the condition of the tyre was not poor to that extent, and further, that the worn tread was unlikely to be worn because of any mechanical defect since it was worn uniformly across its width and not on just one side as would be expected if a mechanical defect was present. This was, he thought, just an older tyre.

[123]I do not accept (for reasons already explained) that the lower swivel pin fixing bolts were missing at the time of the accident. In any case, the claimant accepts that the absence of the fixing bolts is indicative of a lack of proper maintenance of the swivel assembly but did not directly lead to the failure.

[124]There are other matters that the claimant relies upon to prove his case on this point. The first is the evidence of Mathew Fenton, which I have set out in some detail above. In particular, it is suggested that the bang he heard was the swivel pin fracturing. I consider that to be largely speculative, and note that he himself was prepared to accept the possibility of the vehicle having impacted the near side wall. He said he didn’t know whether that had happened, but there was certainly an impact. It was put to him that the claimant was trying to control the vehicle, but over steered, which caused him to lose control. That, Fenton said, was a reasonable assumption.

[125]As regards road markings, I have stated above that I did not find Mr Beswick’s late report convincing. Captain Kenny who inspected the scene the morning afterwards said that the impact site (a broken wall) on left of the track was visible. It was certainly not easy to see evidence of such an impact in the photos. Furthermore, Sergeant Turnbull found no clear path that the vehicle had taken to leave the road.

[126]It is not however in dispute that there were two tyre marks at about the point where the vehicle left the track. Mr Beswick says that, “this trail appears to indicate that there is an absence of directional control to the wheel causing the marks”. Mr Bradshaw on the other hand, says that had the pin sheered on the track and the assembly disassembled as Mr Beswick suggests, there would be clear marks as the offside front wheel was dragged along. There were no such marks. He says that there would be one tyre mark only from the nearside front tyre, as the offside wheel would be out of alignment. In fact, it would be uncontrollable, and dragged or jammed under the vehicle. I consider that he has given a more convincing account of the marks at the cliff edge than Mr Beswick, and I prefer his evidence on the point.

[127]It is accepted that if the swivel pin fractured on the track that would result in a probably catastrophic loss of directional control. The view of Mr Beswick and Mr Bellamy initially was that there had been a fatigue fracture caused by multiple impacts over time. That fitted their overall view that the vehicle was in a poor condition, and that in the course of driving normally down the track, the hub assembly finally failed and the swivel pin sheared.

[128]However, as has been established, there was no fatigue fracture. The fracture was caused by an impact. Mr Bellamy supports Mr Beswick’s view that preload had gone by then. He said that the broken bottom swivel pin, the oval shape in the lower bearing cup aperture, and the absence of the bearing cup indicated to him that the top and bottom swivel pin taper bearings were worn to such an extent that the pre-load had been diminishing over a period of time before the accident. However, in cross examination, he accepted that no significance could be properly placed on the absence of the bearing cup as he had not examined it. As the defendant says, this was an obvious point, but it should also have been an obvious point to Mr Bellamy. He also accepted that the oval shape in the lower bearing cup aperture was, as opined by the metallurgists, caused by impact damage. Of his reasons therefore, he could only point to the broken bottom swivel pin.

[129]Despite the fact that he was not able to demonstrate mathematically that the fracture could not have occurred on the track, I found convincing Mr Newbury's evidence to the effect that is more likely to have occurred while the vehicle was falling down the cliff. He explained how in his opinion the offside front wheel might have experienced heavy loading when catching on the steep terrain on the way down. It is clear that heavy loading would have been required to cause the fracture.

[130]As already stated, in his later report Mr Beswick said that the cause of the accident was loss, or severe diminution of, the preload in the front offside hub assembly. I accept that some diminution of the preload was not in any way unlikely in a well used off road vehicle such as the Land Rover. However, on balance I find that there is no clear evidence of a severe diminution in this case. The claimant accepts that substantial force was required to cause the fracture, but does not advance a positive case as to how that can have happened when the vehicle was driving along the track. (It was suggested in oral closing that the vehicle might have hit a rut or a rock. But Sergeant Turnbull noted “no apparent reason ie ruts/rocks on road etc”.)

[131]As the claimant points out, the only expert evidence supporting the possibility of an impact to the nearside wall causing the claimant to oversteer comes from Mr Bradshaw’s oral evidence. This was to the effect that, though the body of the vehicle does not show corresponding impact damage, that does not rule out the possibility of the nearside wheel having struck the wall. Some such incident has the support of Captain Kenny’s observations, but though he had the advantage of actually seeing the scene, as opposed to having to rely on secondary evidence such as photographs, he does not have the expertise of a specialist in accident reconstruction. I do not think it can be ruled out, but on balance, I have not found the possibility that the vehicle struck the nearside wall to be established.

[132]At the time, the investigation into the accident concluded that the claimant had been driving too fast. On the evidence, I am satisfied that this track had to be negotiated slowly and in low gear, even the less demanding part where the Land Rover left the track. However the experts in this litigation have ruled out excessive speed as a cause.

[133]I come back therefore to the evidence as to the fracture of the offside lower swivel pin. Despite the criticisms made by Mr Beswick as to the feasibility of such an occurrence, I prefer the evidence of Mr Newbery and Mr Bradshaw that the most likely explanation is that the fracture occurred when the vehicle was falling down the cliff. On the evidence as a whole, I am satisfied on the balance of probabilities that it did not happen when the vehicle was driving along the track. On the balance of probabilities, I find that the cause of the accident was not mechanical defect.

[134]On the balance of probabilities, I am satisfied that the cause of the accident was driver error. It is impossible to provide a precise explanation of what happened but, despite his aptitude, the claimant was an inexperienced driver, had no off-road training, and was driving a Land Rover down a difficult mountain track at dusk. In those circumstances, he lost control of the vehicle, which went over the edge.

Failing to provide a safe system of work

[135]The claimant’s alternative case is that the defendant failed to provide a safe system of work. In that regard, I note that the content of a safe system of work has to be viewed in context. In the present case, the claimant was serving in a Marine commando unit in an isolated observation post which was subject to enemy attack. They were all engaged in a military operation. The defendant submits that in this context the claimant must take responsibility for his own decision to drive. On the other hand, Ms Amanda Yip QC points to lessons learned from road accidents in Iraq which could have been avoided with better training and awareness. The claimant’s contentions in support of his alternative case are as follows.

[136]It is convenient to begin with the statement Captain Oliver gave to the Royal Military Police on 5 February 2007. He referred to the Defence Road Transport Regulations, a lengthy document known as JSP 341, and said that the MOD had a duty of care for its employees and other road users, and must meet that duty and ensure that drivers are legally qualified to drive service vehicles. By the “Head of Department” (by which he meant the Commanding Officer, in this case Captain Kenny) not checking that the individual possessed the correct driving licence, there was a failing in the MOD duty of care. He made it clear in his oral evidence that he was referring in this regard to JSP 341 at 1.044, which states that to meet the duty of care, it is mandatory that anybody who is authorised to drive a vehicle has the appropriate competencies (which are stated to include the FMT 600). The claimant places reliance on this, whilst the defendant says that it is no more than Captain Oliver’s interpretation of JSP 341. I do not think that it is dispute that the question must be answered according to the particular breaches of duty alleged by the claimant, and my conclusions in respect of them.

[137]As stated in his closing submissions, the claimant’s case is as follows. He relies upon a lack of appropriate systems for ensuring driving tasks were carried out only by those who were appropriately qualified. His case is that there were insufficient available trained drivers and that the system in fact operating allowed and encouraged the claimant to drive without an appropriate licence and while untrained in driving in off-road conditions. I shall take these points in the order of the claimant’s closing.

[138]As to training, claimant submits that the common law duty of care to provide a safe system of work included a duty to ensure that only properly licensed and trained drivers drove military vehicles. The defendant accepted that proposition, saying that the duty is acknowledged in JSP 341 at 1.044, and the duty encompasses providing training. The claimant submitted that in this case, that would include basic training and cross-country driving instruction.

[139]So far as training is concerned however, the defendant contended that the duty only extended to those who were allowed to drive. There was no duty of care to provide the claimant with training as to how to drive the Land Rover, because he was not allowed to drive it. Training is specialised because the task is a specialist task.

[140]In my view, the defendant’s contention is correct. There could be no question of training the claimant, who had not yet taken the UK driving test. It was not in dispute that the claimant was not eligible for an FMT 600, because he did not hold a full driving licence. In fact, the claimant made it clear in oral closings that it was not being suggested that everyone should have been trained to drive the Land Rover, or that the claimant should have been trained. The duty could be discharged if others were trained. Put this way, the point is encompassed within the submission as to the insufficiency of available trained drivers. In that regard, I refer to my findings above in this respect. Three or four of the thirty men at Athens held the FMT 600, and although there cannot have been much of a margin, on balance, I accept Captain Kenny’s evidence and that of Corporal Hewett that this was adequate for requirements.

[141]Under JSP 341 at 9.231, Commanding Officers (in this case Captain Kenny) have “a duty to ensure that clear procedures and effective training for road safety and accident prevention are put into effect at their units”. They are also responsible for ensuring that all personnel permitted to use Service vehicles are properly qualified and licensed in accordance with the Regulations (see at 15.031).

[142]The claimant submits that the duty of care includes a duty make individuals aware of their responsibilities. That is particularly important for those serving in theatre. There had been problems in Iraq with a large number of road traffic accidents because people thought different rules applied in theatre. The context is important, it is submitted. Those serving in Kajaki were under huge pressures and responsibilities. Part of being a Marine was to “always volunteer and be enthusiastic about everything”. In that context, it was submitted, training and supervision is particularly important. The claimant’s case is that he was not sufficiently made aware of his responsibilities in this regard.

[143]The defendant submits that put this way, the duty is much too widely drawn. The duty is to ensure that those who were to deploy were informed of matters relevant to deployment—on the facts of this case, it is accepted that there was a duty to inform (for example) the claimant as to who would be authorised to drive and who would not. There, submits the defendant, the duty ended so far as driving was concerned. That duty was discharged by the briefings prior to deployment, and its importance was reinforced in theatre. The claimant knew that he was not authorised to drive the Land Rover, and should not have been doing so.

[144]So far as the scope of the duty is concerned, to the extent to which the claimant puts it more widely I accept the way the case is put by the defendant. This part of the case turns on the extent to which individuals were made aware that a military permit was required to drive the Land Rover, and the extent to which that rule was enforced. On that basis, I agree with the claimant’s submission that so far as this case is concerned, individuals could be made aware of their responsibilities through formal courses of instruction, or through direct orders.

[145]As to formal courses of instruction, a factual issue arises as to the adequacy of briefings prior to arrival at Kajaki. I have dealt with this in my findings of fact above. The defendant’s evidence on this issue primarily came from Captain Oliver, although he did not himself provide the briefings which the claimant would have had along with other military personnel. The claimant relies on the evidence of Marines White, Ravenscroft and Fenton to the effect that they could not recall being given briefings about authorisation requirements, and that the package has since been increased, the claimant suggested as a result of the accident.

[146]This was within Captain Oliver’s sphere of responsibility, and I accept his evidence that the OPTAG briefing did make it clear that only those persons with a full UK driving licence and FMT 600 were authorised to drive, a point reiterated during the RSOI theatre familiarisation. The latter evidence was supported by Captain Kenny. I reject the claimant’s case that the briefings did not adequately convey to the claimant and other Marines that nobody should drive a military Land Rover without an FMT 600.

[147]The next question is as to the system in place at the Athens observation post. As already stated, I find that the system was as follows. The keys to the vehicle were to be kept in the Ops room. Persons who required the keys would register their “zap numbers” with the radio operator who would then note the details of their task on a white board known as the movement board. The radio operator would then give them the keys to the vehicle. The evidence of Captain Kenny was that it was critical that the system was followed, so that everyone could be accounted for effectively in that they knew where everyone was.

[148]On the other hand, I am satisfied that this did not always happen. I accept Marine White’s evidence to the extent that there were occasions when the keys were left in the vehicle—but there is no evidence that this was to the extent that the system was flouted.

[149]Apart from the formal briefings, the effect of the evidence of Captain Kenny and Corporal Hewett is that the requirement for a military permit was reinforced by oral instructions on deployment. I accept this, and despite the evidence of Marines White and Ravenscroft to the contrary, I reject any assertion that this requirement was not known by Marines at the time. It is of some significance that Marine Fenton, who was called as a witness by the claimant, said that he was “aware you needed a FMT ticket and that this would identify what vehicles you could drive”.

[150]Further, as stated, I reject on the facts the claimant’s assertion that the system in fact operating, or that the prevailing culture in the Marines, allowed and encouraged the claimant to drive, albeit he was not authorised to do so. There is no doubt that the culture in the Marines was a highly positive and proactive one. But as Mr Browne put it, this did not extend to volunteering when not qualified to do the job in question.

[151]Nevertheless I do accept, largely on the evidence of the work sheet showing that Marine White drove the vehicle on 10 November 2006, which was not the only occasion on which White drove the vehicle in the six weeks or so that 42 Commando had been at Kajaki, that the prohibition was not fully enforced.

[152]In that regard, the claimant submits that proper systems were generally not operating, because had they been, the claimant simply would not have been driving on 13 November 2006. It cannot be suggested, in my view, that the defendant is responsible for the fact that the claimant asked to drive the Land Rover up the mountain on the afternoon of that day. He was senior to Marine White in rank. As regards the drive that ended in the accident, as I have said in my findings of fact set out above, though there is no suggestion that Captain Kenny ordered the claimant to drive the Land Rover, which he plainly did not, on balance I find that Captain Kenny permitted him to do so, because this is what he told the Royal Military Police shortly after the event when his recollection would have been much fresher.

[153]The defendant submits that nevertheless that finding does not attract liability to the defendant. There was still a suitable system in place, both as to pre-theatre briefings, and getting the keys from the Ops room as already described. Therefore, it is submitted, the claimant himself would have known that he was not authorised to drive, but nevertheless did so.

[154]In response, it was suggested on his behalf that there is no evidence that the claimant did in fact know this. It was said that it was not unreasonable for him to think that there was a distinction between the roads in the UK, and the mountain track in Afghanistan. Corporal Hewett’s response when seeing him in the driver’s seat described above, was not, it was submitted, the kind of strong response one would have expected had there really been a ban which was enforced.

[155]For reasons already set out however, I have found that the marines knew about the requirement for an FMT 600. Although there is no direct evidence, on the balance of probabilities I accept the defendant’s submission that the claimant also must have known this. Furthermore, in his case, there is the additional fact that he did not have a full UK driving licence, since he had not yet taken the driving test. Albeit very young at the time, as a Lance Corporal, he was in a position of some responsibility. On the balance of probabilities, I accept the defendant’s submission that he must have known that he was not allowed to drive the Land Rover.

[156]This is not an easy issue to resolve, and there are arguments both ways. However, on balance I accept the defendant’s submission that the claimant must take responsibility for his own decision to drive, even though Captain Kenny permitted him to do so. My conclusion on the claimant’s alternative case is as follows. Captain Kenny said that he enforced the FMT 600 requirement as much as he could, and Corporal Hewett said that as section commander he enforced it. I have accepted their evidence in this regard. As I have found, there was a degree of non-enforcement, which I consider reflected the difficult conditions that existed for those serving in the observation post. But in my view, it fell well short of establishing a failure to provide a safe system of work, or otherwise establishing breach of a duty of care on the part of the defendant.

Conclusion

[157]It follows from the above that neither ground of his claim has been made out by the claimant. In those circumstances, I need make no findings as to contributory negligence. The claimant suggested that no more than 25% would be justified. The defendant submitted that his contributory negligence is very high—in the region of 70% - 80%. Had the issue arisen, I would have assessed contributory negligence at 50%.

[158]I am grateful to the parties for their assistance in what has been a particularly difficult case, and will hear them as to any directions that are consequential on this judgment.