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Polish translation

Stanley v Armthorpe Moto Parc

Neutral Citation Number: [2009] EWHC 2849 (QB)   
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
SHEFFIELD DISTRICT REGISTRY
SITTING AT LIVERPOOL CIVIL & FAMILY COURT

35 Vernon Street
Liverpool
Merseyside

Friday, 15th May 2009

Before:

HIS HONOUR JUDGE PLATTS
(sitting as a Judge of the High Court)

Between:

PAUL STANLEY

Claimant

-v-

BRYN CLOSE t/a ARMTHORPE MOTO PARC

___________________

Counsel for the Claimant:     MR. ROWLEY QC
(Instructed by Express Solicitors, Northenden)

Counsel for the Defendant:    MR. BARKER QC & MR. DUTHIE
(Instructed by Paris & Co Solicitors, Warwick)

___________________




JUDGMENT APPROVED BY THE COURT

Transcribed from the Official Tape Recording by
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APPROVED JUDGMENT

1. THE JUDGE: These two claims arise out of a serious accident that took place at the Armthorpe Moto Parc on 25th March 2005, which was a Good Friday. It was at about quarter to 11 in the morning during an adult practice session, when a motor cycle ridden by the second claimant Mr Mason, collided with the first claimant, Mr Stanley, as a result of which he suffered injury. Both claimants allege that the accident was caused by the inadequate marshalling of the practice session, and consequently they bring actions against the defendant who was responsible for the running of the track. The defendant denies that the marshalling was inadequate and alleges that the accident was caused by Mr Mason in riding too quickly and ignoring the warning flags that were being displayed by the relevant marshal at the time.

2. The claims were brought separately, but by order of District Judge O’Driscoll on 30th October 2008, they were consolidated and it was ordered that liability be determined as a preliminary issue. There were no directions as to which was to be the lead action and no order was made for consolidated statements of case. As a result, and understandably, the claimants appeared before me separately represented by different solicitors and counsel.

3. There is no dispute about the law which I have to apply in this case. It is set out in Mr Rowley’s skeleton argument at paragraph 10. There was clearly a duty of care owed by the marshal (the relevant marshal in this case being a Mr Vickers), to both claimants as participants in the practice session, and there is no issue that the defendant, Mr Close, is vicariously liable for any breach of duty by Mr Vickers. There is no dispute about the standard of care to be applied, as is set out in the authorities cited by Mr Rowley, in particular that of Vowles v Evans [2003] EWCA Civ 318 where Lord Phillips MR referred at [22] to the judgment of Lord Bingham CJ in Smolden v Whitworth & Nolan [1997] PIQR P133 at 138-9 as follows:

"The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed.”

Lord Phillips MR continued himself at [26]:

“The standard of care to be expected of a referee must depend upon all the circumstances of the case. One of those circumstances is the nature of the game. As Lord Bingham CJ observed in Smolden, a referee of a fast moving game cannot reasonably be expected to avoid errors of judgment, oversights or lapses. The threshold of liability must properly be a high one.”

The layout of the track

4. Armthorpe Moto Parc is a facility for off road motocross practice and competition. It  was developed by the defendant, Mr Close, in about 1993 and over the years he has developed five tracks at the site: three children’s tracks, an intermediate track, which is intended for experienced riders, but they can be as young as eight years old, and finally a competition track. The accident occurred on the intermediate track which is a mile and a half long and includes a number bends and  jumps. I have seen a promotional video of the relevant track which apparently was not taken or produced by the defendant, and a second reconstruction video which illustrates the particular jumps where this accident happened. I have also been referred to plans of the track and two sets of photographs and heard descriptions of it in oral evidence. I was invited by the defendant to visit the track for a view. I declined that invitation since it seemed to me (and still seems) that given the issues which there are in the case, and the evidence which I have heard, there would be little advantage to the court in attending the site. In considering the evidence, I remind myself that photographs and video recordings can be deceptive and do not necessarily give a full picture. 

5. The accident was at a place called table top 12. A table top is a particular layout of the track which enables riders to leave the ground or jump. It is approached by a relatively steep upward slope, at the top of which there is a flat area which  gives the feature its name, which is then followed by a downward slope at the other end. The general idea is that a rider accelerates up the uphill slope so that when it levels out at the top of the slope, the bike leaves the ground and flies through the air. The rider then lands either on the table top itself or on the downward slope on the other side, depending on his ability. It is clear that this type of jump is an integral part of the thrill of motocross riding.

6. On this track, on the approach to table top 12, is a dip which is known as “the bomb hole”, which starts at the previous jump, table top 11. Table top 11 is similar to table top 12 but apparently has a longer flat top. Before table top 11 on the course there is a smaller jump known as “the ski jump”, jump number 10. I have some measurements of these jumps prepared by Mr Duthie from the reconstruction video. This evidence suggests that the distance from jump 10 to an undefined point on the table top of jump 11 is around 90 metres. The length of table top 11 is about 30 metres. From the far edge of table top 11 to the near edge of table top 12, that is through the bomb hole, I was told is about 60 metres, and the length of table top 12, at its summit, is some 21 metres. It seems to me that these are not precise measurements and I do not treat them as such.

7. At the left hand side of both table top 11 and 12 there are marshalling posts which can be clearly seen on the photographs and the DVDs that I have seen. These each have a single upturned pallet which is positioned to the side of the marshal from which the riders approach. During the practice session the marshal would stand beside this pallet. There is no dispute that a marshal at table top 11 can be seen from, and therefore can see, jump 10. There is no dispute that he can also see into the bomb hole and up to the top of the table top 12. Equally, there is no dispute that the marshal on table top 12 can see into the bomb hole and back to table top 11, but not beyond table top 11 to jump 10. Looking the other way or downstream, the marshal at table top 12 can see well into the next left hand bend. It does appear from the photographs, and indeed was agreed in evidence, certainly by Mr Crowther (and I so find) that a rider on the top of table top 12 would be visible to a rider on the top of table top 11. However, when a rider is in the bomb hole, he cannot see a rider on the top of table top 12 because of the slope.

Marshalling

8. There is no dispute that motocross is a dangerous sport. On the intermediate track bikes travel at speed. It has many blind bends and jumps, and the presence of marshals is necessary to warn riders of any obstructions ahead on the track. They do this by using two flags which they are supposed to carry in their hands at all times that the session is in progress. The flags are a yellow flag which is to indicate to riders that they should slow down and ride with caution, as there may be an obstruction or incident ahead. The red flag is waved as an indication to riders to stop their bikes immediately. The evidence suggests that after a red flag, riders sometimes, perhaps commonly, switch off their engines in order to avoid overheating; but this is not a requirement, it is in the discretion of the rider.

9. The way in which the flags should be used on this track by a marshal is reproduced in a number of the defendant’s documents which have been placed before me. They include the main practice track rules which are given to the riders; and the job descriptions and safety guidelines both for track marshals and running marshals, which are available to marshals. It is appropriate for me to read the flag rules instructions that have been reproduced identically in each of those three documents. In relation to the flags, it is set out as follows:

“Waving yellow flag in a figure of eight motion to warn oncoming riders to show caution and to slow down, i.e. stalled/stationary bikes or a fallen rider not in immediate danger. Waving red flag in a figure of eight motion to stop all riders immediately. If at any time the red flag is put up or shown by another marshal, all other marshals should follow suit and stop all riders immediately. If any rider stalls his or her bike or falls in a vulnerable/dangerous position, a red flag must be shown to stop the practice session. The marshal who first puts out the red flag must indicate to the running marshal that his or her attention is required at their marshal station by holding red flags upright in the air and the yellow flag stretched out at arms’ length.”

10. There is no dispute that that system describes generally the way in which flags should be used by the marshals. The documents however go on to deal with the position on the restart of the session after a red flag incident has occurred, and it is that restart which is of central importance to this case. The document reads as follows:

“After a red flag situation only the AMP running marshal can restart the practice session. All marshals should observe the running marshal who will place himself in a position so he or she will be seen by all other track marshals. Once the running marshal is in position all track marshals shall place their red and yellow flags in a pointing upwards position. This indicates to all riders to restart their engines. Whilst red and yellow flags are in this position, the AMP running marshal will raise one of his or her arms into the air whilst stood upright. He or she will take a few moments to check around the track to make sure that he or she cannot see any rider trying to start their bike. Once the marshal is satisfied all bikes are started, he or she will drop their arm to indicate to all marshals to drop the red flag and immediately start waving yellow flag in a figure of eight motion. This indicates to all riders to proceed with the practice session under caution. The practice session may now continue. If at any time a bike stalls after a restart, continue waving yellow flag if the rider is not in danger, or if needs be, stop the session with another red flag if the rider is in any immediate danger.”

11. In evidence it became apparent that there were different ways at this track in which the travelling or running marshal could give the signal to the static marshals to restart the session. Sometimes he will raise two flags, the yellow and red flag, sometimes he will signal using a circular motion with his hand in the air, or sometimes merely by standing on a quad bike in a raised position so that he can be seen by all marshals. However, whatever the method used by the travelling marshal, on his signal the static marshals should all raise both their red and yellow flags and the riders should start their engines if necessary and get ready to proceed.

12. Mr Rowley criticised the system where there is no uniform method of the travelling marshal indicating to static marshals when the session should be restarted after a red flag. That is a valid criticism but in my judgment has no bearing on this accident. There is no suggestion here that the static marshals were unaware of the meaning of the travelling marshal’s instruction or did not follow it. It may be evidence of a somewhat lax system of training and marshalling, but I return to that later on.

13. Once the travelling marshal is satisfied from his vantage point that all riders are started and ready to proceed, then he signals that the riders may start, either by dropping his hand, lowering his red flag, or waving a yellow flag. The static marshals should then all lower their red flags but keep their yellow flags raised or waved, to indicate to the riders they should start riding, but cautiously. It is quite apparent that the use of both red and yellow flags on the restart in this situation is a recognition of the risk that riders can and do stall when restarting, and therefore might present an obstruction for other riders who have started. This risk is in fact acknowledged as foreseeable in paragraph 4 of the defence.

14. Precisely when the yellow flag is then lowered after the restart is an important issue in this case. In the defendant’s skeleton argument it is put in this way:

“When instructed to proceed, the marshal withdraws the red flag and leaves up the yellow flag. This enables the riders to start their engines and to proceed with caution. The yellow flag is signalled for the best part of a lap to ensure that all competitors have successfully started their engines and are moving normally. This convention is well known to all participants.” This description was not, in my judgment, supported by the evidence which I have heard. Mr Close says in his witness statement at paragraph 7:

“The yellow flags remain out until all the participants are safely under way.”

In evidence he put it slightly differently. He told me that each marshal is primarily responsible for the area between his post and the next downstream, and that the marshal should only drop his yellow flag “once he is satisfied that his section of the track is clear”.

15. Tom Vickers gave evidence similarly. In his witness statement at paragraph 38, he says that:

“Yellow flags should be waved ‘until we are sure that everyone has restarted properly and is under way without problem.’ ”

Again in evidence, he put it rather differently saying:

“You keep your yellow flag up ‘until your section is clear.’ ”

It is clear that that could be for the best part of a lap as described in the skeleton argument, but certainly is not every time, and certainly the experience of Mr Mason and his witness Mr Crowther, was that the yellow flags are usually lowered quite quickly after a restart.

16. Mr Close, the defendant, accepted that once a rider sees a yellow flag has been lowered after a restart, then that rider is entitled to assume that the track ahead of him is clear and he can ride normally. At one point he seemed to suggest that if it is soon after a red flag incident and a restart, the rider should still proceed with caution even though the yellow flag has been lowered. However, on closer examination of his evidence I find that what he was in reality saying, was that he would expect that the yellow flag should remain, after a red start, until the marshal was satisfied that the track was safe. I am satisfied that the system as understood by all was that if there was no yellow flag the rider was entitled to assume that the track ahead was clear after a restart.

Training

17. The defendant employs marshals on a part time basis. He says that most of the marshals on his track are over 16 but one or two are younger. There is a marshal stationed at the entrance to each track and in respect of the intermediate track, a marshal at every jump. He says that generally the younger and less experienced marshals are put on what he calls ‘the least contentious parts of the circuit’, where there are rarely any incidents. He described table top 12 as a fast but pretty easy jump, whereas table top 11 he described as one of the most dangerous jumps on the track. In addition, there is a travelling marshal (as revealed in the flag rules instructions that I have read) who is mobile and who attends incidents on the track as necessary, and who acts as a leader for the static marshals.

18. Mr Close acknowledged the need for training of marshals. He said (and I agree) that the main thing for them to learn is the flag rules. He commented that it is not ‘rocket science’ and later he said:

“You don’t need a university degree to wave a flag.”

Consequently, training, he said, “Really only takes a day.” He told me a novice marshal would spend at least one day with an experienced marshal and be shown what to do. After that the new marshals will be allocated to what he called ‘soft jumps’ for a while, until they were ready to go on to the more difficult jumps. Mr Close told me that a new marshal would be told of the contents of the document at page 106 of the bundle (that is the terms and conditions of employment and safety guidelines as marshal), and he said that a similar laminated document, but with more bullet points in it, (a document that was undisclosed by the defendant), is affixed to each marshal post. He said that he constantly reminds marshals as to their responsibilities emphasising that the need for speed and accuracy with their reactions, and that that could be the difference between life and death. The way he put it was:

“It could be the difference between going home in a van or in a coffin.”

Mr Close said that after initial training, every marshal’s performance was constantly monitored throughout their employment by the relevant travelling marshal at the time.

19. At the time of this accident the marshal at table top 12 was Tom Vickers. He was then 14 years old, a school boy at Don Valley High School. His witness statement suggests that he had only been involved with motor sports since August 2004, although in supplemental evidence in chief he said he had been interested in riding since the age of 9 or 10. On any view he was young and in my judgment only had limited experience. He confirmed that he had had training from an experienced marshal called Colin for at least one day, but then had spent about three months thereafter working with Colin on the “double table top” before being allocated to other jumps on his own. Mr Close, the defendant, told me that he had assessed Mr Vickers when he had been acting as travelling marshal and said he was good at the job. It was the actions of Mr Vickers that are really brought into question by this particular accident.

The accident

20. Turning now to the accident itself, it took place during an adult practice session on the intermediate track. There is no dispute that the weather was good, ground conditions were dry, and the track was not very busy. There is no issue that immediately before the accident there had been a red flag incident, as a result of which riders had to stop their machines. At that point Mr Stanley was on table top 12. There is an issue as to where Mr Mason was to which I will return. There is no dispute that once the problem leading to the red flag had been resolved, the travelling marshal gave the indication to other marshals to restart their bikes and get ready to move off, and that in response Mr Vickers, at table top 12, and the marshal at table top 11, who has been identified only as Dean, raised both red and yellow flags. There is also no dispute that at some point thereafter the running marshal indicated that the riders could commence moving around the track. At this point the static marshal should, in accordance with the system, lower the red flag but keep the yellow flag raised as an indication to the riders to proceed with caution. There is an important and central issue in this case as to what Tom Vickers did with his flags at this point. Tom Vickers says that he continued to wave his yellow flag at all times up to the collision. Mr Mason and Mr Crowther say that he was not waving any flag.

21. There is no dispute that Mr Stanley, having started his bike, rode off, but then stalled when at a position at the far end of table top 12, his approximate position then being illustrated in photographs in the bundle by a police marker 1. There is also no dispute that whilst he was stationary, Mr Mason, who was attempting a jump over table top 12, came over the lip at sufficient speed to leave the ground for a distance of more than 21 metres, and to strike the first claimant, Mr Stanley, on the head at a height of about five feet, even then, above the ground.

22. That in a nutshell is the incident. What of the conflicting cases? Mr Mason was born on 23rd March 1986 and was aged 19 at the time of the accident. He is now 23. At the time he was a professional motocross rider. He had been riding since the age of 6, he had entered competitions both nationally and internationally. He had coached motocross riding for ten months. He had been to Armthorpe, this track, about 20 times before the incident. Mr Mason was a very experienced rider. His case is that he was stationary with Mr Crowther, his friend, with whom he had visited the track, a short way beyond jump 10 during the red flag incident. There were other riders there, between four and eight of them, he could not remember how many. He could not remember if he had switched his engine off. However, he did say that he saw the marshal at table top 11 lowering the red flag but still showing his yellow flag. He therefore proceeded towards and on to table top 11 with caution, riding over table top 11 rather than jumping it. As he entered the bomb hole from table top 11 he saw the marshal at table top 12, that is Mr Vickers, and saw that Mr Vickers was not displaying any flags.

23. Consequently he assumed that the track on and beyond table top 12 was clear. He thought it was safe to jump table top 12. He said that if a yellow or red flag had been shown by Mr Vickers then he would not have attempted to jump and the accident would not have occurred. Mr Mason does not remember seeing any riders on table top 12 when he was on table top 11. As a result he accelerated into the bomb hole and up the other side. When taking off he did a technique known as ‘the seat bounce’ in order to increase the time that he was in the air and the distance of his jump. He accepts that he struck Mr Stanley at the far end of table top 12 when he was still about five feet in the air.

24. Mr Mason is supported in his evidence by his witness, Mr Crowther. Mr Crowther agreed that the two had stopped just beyond jump 10. His evidence was that he saw the travelling marshal give the signal to the other marshals to withdraw the red flag. They therefore started off. Mr Mason went slightly ahead, and Mr Crowther slightly behind. He remembers other riders being stationary at jump 10 too, but again was not sure how many. He remembers another rider setting off on his side, but does not know what happened to the remainder. He said that he rode on to table top 11, and while he was on table top 11, he saw the marshal there, that is Dean, lower the yellow flag. He too did not see any riders on table top 12. However, his evidence was that he did see the marshal on table top 12, that is Mr Vickers, holding his flags and they were both in the down position. As a result, he too assumed it was safe to proceed and he too jumped table top 12 slightly behind and to the left of Mr Mason. Both Mr Mason and Mr Crowther are adamant that (a) they first of all came from jump 10 and (b) Mr Vickers was not waving a yellow flag.

25. The defendant’s case as to the happening of the accident relies principally on the evidence of Mr Vickers himself. I have already dealt with his experience, or inexperience. He was the marshal on table top 12 and he has told me that during the red flag incident Mr Stanley was stationary effectively in front of him at the top of table top 12. He said that Mr Mason, he remembers, was on table top 11 during the red flag incident, on his own. He remembers two bikes being stationary in the bomb hole. He says that he saw the travelling marshal give the signal to restart. He therefore held up both red and yellow flags, and Mr Stanley apparently started his bike successfully. On the signal from the travelling marshal, he lowered the red flag but continued to show the yellow flag. He told me, as a supplement to his witness statement and in evidence in chief, that he then saw Mr Stanley set off and ride to the far edge of table top 12 where he stalled. He says that he saw Mr Stanley there trying to kick start the bike. He carried on waving his yellow flag. He then became aware of a loud noise of a revving engine coming through the bomb hole. He looked into the bomb hole and saw Mr Mason approaching at speed. He says that he went to put out his red flag but he could not do it before Mr Mason was airborne. By then it was too late to avoid a collision. In the circumstances the defendant’s case quite simply is that Mr Mason either failed to see or ignored the yellow flag which was being waved by Mr Vickers.

26. It is clear that there are two central issues of fact concerning this accident. Firstly, where did Mr Mason stop when the red flag incident occurred? Secondly, and more importantly, what flag, if any, was Mr Vickers showing when Mr Mason left the top of table top 11 to begin his approach to the jump at table top 12?

27. Before I resolve those two issues I just deal with other evidence which has been given, and which may touch on those issues of liability. Mr Stanley’s evidence is before me. Unfortunately he has no recollection of this accident because of the injuries that he sustained, and his evidence was read and unchallenged.

28. I have heard evidence from a number of witnesses as to the relative speeds of Mr Mason’s bike compared with those shown on the reconstruction DVD, and also evidence about distances and about how long it might take for any rider to travel over a particular part of the track. Each side at some point has sought to suggest that the timings and distances tend to sit more easily with his case than the other’s.

29. I must say that I find this evidence and analysis to be of little assistance. The distances are measured (as I have set out) but they are, it seems to me, approximate. However, the speeds have not been measured at all. Mr Mason estimated his speed at take off at about 30 or 35 miles per hour, but slower than that shown on the DVD. There is no direct evidence of the speeds of the riders on the DVD but again, there are estimates that they were going about 30 or 35 miles per hour. These are at best, estimates and more accurately, just impressions. I accept broadly that Mr Mason was probably going slower than the bike in the DVD, and that is mainly because he used the technique of ‘seat bouncing’ in order to gain a similar trajectory to that illustrated as the rider in the demonstrations. I also accept broadly that he was going something around 30 miles per hour. However, that finding in my judgment is not sufficiently precise to assist in any meaningful or accurate reconstruction or comparison. I also accept that on a yellow flag the driver’s speed should probably be between 10 and 15 miles per hour, but again, this is more a matter of impression and not an accurate finding.

30. Equally when comparing how far one rider might have moved relative to the other, there is, in my judgment, insufficient information for me to reach any meaningful conclusions. There is no evidence that the respective riders who are being compared started at the same time: they may well have done, they may not have done. It depends upon whether riders reacted to the travelling marshal, as Mr Crowther said at one point he did, or a static marshal. It depends on how long it took for the static marshal to react to the travelling marshal, and thereafter for the rider to react to the static marshal. There are so many imponderables I do not find it useful to make any findings about these, and it would be dangerous for me to reach any conclusions based only on an analysis of times and distances.

31. Equally, I have been referred to a promotional video. This was disclosed apparently by the defendant shortly before trial. There is no evidence as to how, when, who by, or in what circumstances it was taken. The claimant seeks to draw some support from the video since the conduct of the marshals appears to be in contradiction to the defendant’s own flag rules, which I have mentioned. The defendant says in answer, well I do not know its provenance, it may not be the defendant’s marshal, it may be that the track was hired out to independent marshals at the time. I have to say I do not think that it lies well in a defendant’s mouth to make these arguments without having adduced evidence as to the true position, they themselves having disclosed the video shortly before trial.
Therefore, I think I am entitled to conclude, and on the balance of probabilities do, that it probably showed the defendant’s operation with the defendant’s marshals at some time, whether before or after the accident, I do not know. However, its relevance for my findings of fact as to how the accident happened is rather limited.

32. There was also evidence in cross-examination of Mr Close about the information that was given to participants in the session. He was cross-examined about the information that the participants were given before a session starts. Again, I find this not to be particularly helpful. Firstly, there was no suggestion in this case that the participants were unaware of the rules: they clearly were aware of the rules. Secondly, not being a central part of the claimant’s case, I must say that I got the impression that Mr Close was not particularly prepared to deal with these matters in cross-examination in any detail, and whilst this is no criticism of the cross-examination itself, to an extent I got the impression that he was taken a little by surprise by being asked questions about this issue. On the face of it there was a distinction between what was signed and acknowledged by the riders when applying to enter the track and what the full rules were. However, I am satisfied that despite those differences the participants were fully aware of the rules for the purposes of their session. As I said, I do not consider the evidence assists me one way or the other about how the accident happened, or indeed, about the wider issue of the defendant’s operation generally.

Findings

33. Having dealt with those peripheral issues I go now to my findings on the evidence and the reasons. I have carefully assessed the witnesses who gave evidence about the accident. They are all motocross enthusiasts and, as has been emphasised, all ordinary people. I am quite satisfied that all were truthful in the sense that none of the witnesses were deliberately trying to mislead me or put forward evidence which they knew to be untrue. I reject the allegation made against Mr Vickers that his evidence was tainted in a sinister way by assistance from an outside source. Clearly, of course, he must have had help taking the measurements which he gave evidence of, but I am satisfied that there is no more sinister external influence on this evidence than that.

34. Equally, I am satisfied that the defendant has not deliberately withheld information or evidence in order to seek either a tactical or evidential advantage. Although he was the owner and proprietor of the site at the time, he was, and is first and foremost, a motocross enthusiast who was providing a service for other  enthusiasts. He is not an administrator, or indeed did not come across as a business man. Any deficiencies in paperwork, and indeed in disclosure, in my judgment, are probably more as a result of that than anything more sinister.

35. That having been said, I have to choose between the two competing accounts of the accident. When I look at the two competing accounts I have really no hesitation in accepting, on balance, the evidence of Mr Mason and Mr Crowther in preference to that of Mr Vickers. This is for a number of reasons. First, I found both Mr Mason and Mr Crowther to be credible and reliable witnesses of fact. My impression of Mr Mason was that he was a quiet and straightforward witness. He was entirely appropriate in demeanour and in the way he answered questions. He did not attempt to embellish his evidence. As an example he agreed that, when the red flag incident occurred, his reason for stopping was not because he saw the red flag, but because he saw other drivers stop. He was open to some criticism in cross-examination because of that, but he was quite happy to put forward that as his reason. If he could not remember a detail of the incident he said so. For example, did he switch off his engine? He just could not remember. He was not a witness who tried to reconstruct the incident in his mind or tell me what he thought would have happened in the circumstances. He was not trying to mislead me; in my judgment he certainly was not trying to give an untruthful account. I was, on the whole, impressed with his evidence.

36. Similarly with Mr Crowther. He again appeared to me to be honest, appropriate, and attempting to do his best to assist the court. Significantly, I do not think that there is any reason for either Mr Mason or Mr Crowther to be mistaken as to where they stopped, that is at jump 10. I do not think that they were at all mistaken about that.

37. There were really only two features of their evidence which caused me some concern. The first was what happened to the other riders who were stationary with them at jump 10? There is no evidence that anyone other than Mr Mason and Mr Crowther, and perhaps one other rider, made the jump at jump 12. What happened to the others? On balance, I find that they were probably sufficiently behind the others (that is Mr Mason, Mr Crowther, and maybe one other), to react to the red flag which Mr Vickers says he raised immediately after the incident, so that they were able to stop before jump 12.
Second, I was concerned that neither Mr Mason nor Mr Crowther saw Mr Stanley on table top 12 when they were on table top 11. Mr Stanley was clearly there to be seen, and this is a matter to which I will have to return in due course. It seems to me that the probability is that their failure to see him, or to recollect seeing him, is explained because either they were relying heavily on the flag (or absence of it) from Mr Vickers or, alternatively, Mr Stanley’s presence did not register with them (or did not seem to pose any particular problem for them now to remember having seen him in that position.) Therefore, despite those two concerns I have about the evidence, they do not, in my judgment, lead me to conclude that the evidence is unreliable.

38. Unfortunately, I am afraid that I do not have the same conclusions about Mr Vickers’ evidence. I find that although it was truthful, in my judgment I cannot rely upon it as being wholly accurate. Mr Vickers came across as a pleasant young man. He was understandably very nervous, trying to do his best; and I have to take into account that he is an 18 year old now, trying to remember back to events that happened when he was only 14 years old. However, when analysing his evidence there are a number of features which lead me to conclude that I cannot rely upon his current recollection of the detailed events of that day, or of the accident itself. A number of matters have been raised which have validity:

(a) His evidence as to who the travelling marshal was has changed. Some weeks after the accident on 3rd May 2005 he made a statement to the local authority about how it had happened, and in that statement he said repeatedly that the defendant, Mr Close, was the travelling marshal. His recollection about that was wrong: he has corrected it since and I am quite satisfied that Mr Bailey was the travelling marshal on this occasion. However, the fact that he repeatedly referred to Mr Close indicates that even at that stage his recollection was probably unreliable.

(b) Where was the travelling marshal at the time of the restart? In his witness statement to the local authority and to this court he said that the travelling marshal was at the double table top. However, in evidence at trial, he said he thought that the travelling marshal was on the raised area in the centre of the track, as illustrated on the plan. In fact, I find that the travelling marshal, who was Ron Bailey, was, as Mr Bailey has told me, at table top 11. Therefore, in those circumstances it seems that Mr Vickers’ recollection on both occasions is wrong.

(c) What was the method used for this restart? In his witness statement to the local authority Mr Vickers said that the travelling marshal raised his hand and a red flag. In his evidence to me, in his witness statement, he said that the restart was signalled by a circular motion with the hand in the air.

(d) How many riders were stationary at the top of table top 12 before the restart? In his witness statement he said that it was Mr Stanley and two other riders. In evidence yesterday to me, he said Mr Stanley was the only one on table top 12.

(e) What other riders successfully rode past Mr Stanley? Mr Vickers thought in his statement to the local authority, there was one. In his evidence to me, through his witness statement, he said two. In his oral evidence when describing the incident to me from the witness box, he did not mention any other riders going through.

39. Therefore, those are a number of illustrations of inconsistencies which of themselves lead me to question whether or not his recollection can be reliable. It was also of some importance that only for the first time yesterday he gave a detailed account of hearing the approach of the Mr Mason’s motor bike, of the noise drawing his attention to it, looking around, and then deciding to show a red flag because of the approach of the defendant. Previously, the impression of his evidence had been that he gave the red flag only after the collision had occurred. That fact, only coming out late in the day in that detail, does suggest to me that his evidence is tinged with an element of reconstruction rather than a recollection of precisely what happened.

40. There were also inaccuracies in his evidence at paragraph 31 of his witness statement. He said that red flags through the incident were shown throughout the break of the incident (ten minutes.) That was not true: he did not seek to say it was true in his oral evidence, but it was either a mistake or an exaggeration. At paragraph 25, he suggested that the red flag meant that engines be turned off. That is not the case, and was not consistent with any other evidence in the case.

41. Perhaps of significance, and most important however, was his understanding and the way he described his understanding of the flag rules. He was asked about this again when giving his witness statement to the local authority, and he described it in this way:

“I have three flags. The yellow flag means caution and slow down. I would use this if anyone stalled anywhere between my jump and the next. Red means stop. I would use the red if someone falls off injuring themselves or if a bike is stranded on the track.”

That description is in contrast to the rules: the decision as to whether to use a red or yellow flag depends upon the immediacy of danger, rather than whether somebody has stalled or has fallen off. That is significant, even taking into account that this statement was given for different purposes (and I have no evidence as to by whom it was taken and in what circumstances.) It is, in my judgment, an indication of his understanding of the use of the flag system at the time of this particular accident as a 14 year old boy.

42. Finally, I look at the inherent probabilities. Mr Mason was a very experienced rider. He came across as such, as a competent and careful rider. I am satisfied that he was fully aware of the dangers of motocross and of the rules to be obeyed. Having seen and assessed him I just do not accept that he is the type of rider who would have ignored or even failed to look for, or see, a yellow flag. Weighed against that is this marshal, Mr Vickers. It is not his fault he is only 14 years old; it is not his fault he has much less experience of cycling and only limited experience of marshalling; it is not his fault that he was put in that position by Mr Close, the defendant. However, it is certainly more likely in my judgment, on the evidence, that there was a failure by him in dealing with the flags appropriately than by Mr Mason.

43. Therefore, my findings are that Mr Mason and Mr Crowther started from just beyond jump 10. The marshal at jump 11 showed the yellow flag which caused them to ride over table top 11at a cautious and appropriate speed. I find that Mr Mason was slightly in front of Mr Crowther. As they crossed table top 11, Mr Crowther saw the marshal at table top 11 lower the yellow flag. That was an indication to him that the track to table top 12 was clear. Mr Mason did not see that, but as he approached the bomb hole, (and before entering it) I find that he saw that there was no yellow flag being shown by Mr Vickers at table top 12. Similarly, Mr Crowther saw no yellow flag there. In their experience it was not unusual that yellow flags would go down so soon after the restart. Consequently both accelerated or opened their throttles into the bomb hole. Neither saw Mr Stanley on the top of table top 12, and both went to make the jump at table top 12. I find that Mr Mason, as he made the jump, did a ‘seat bounce’ in order to increase the distance on his jump. Mr Crowther did not. Both jumped on to table top 12 and the accident occurred as has been described. I find that it was then, and only then, that Mr Vickers showed the red flag. However, I accept it was almost immediately after the accident that the red flag was shown; and I accept that, on the balance of probabilities, this was sufficient to stop the following riders; and that is why they did not come over jump 12 as well, as had Mr Mason and Mr Crowther.

44. As far as Mr Vickers is concerned, I find that he probably did show the yellow flag for a short time after the restart as he was trained to do. However, on the balance of probabilities, I find that when he saw Mr Stanley move off from his stationary position immediately in front of him, and any others who might have been there, he thought that they were clear. I find that it was as a result of that moving off that he then lowered his yellow flag. I find that probably he was then looking towards table top 11. That is certainly where the travelling marshal had been and where he would have had to have been looking in order to see the signal from the travelling marshal. It is also where other bikes were coming from and approaching him. I find that on this occasion he did not look, as he ought to have done, to see whether Mr Stanley had cleared table top 12. Had he looked, he would have seen that Mr Stanley had not cleared table top 12 and that he had stalled on the edge. By the time he was aware that Mr Stanley had stalled in that position I find that it was really too late for him to do anything.

45. There is a subsidiary issue as to whether or not Mr Vickers should in any event have shown a red flag rather than a yellow one even his own evidence. If he had seen Mr Stanley, certainly in my judgment, he should have flown a red flag. That is my finding on the basis not only of the instructions he was given (see page 106) but also on the basis of the concession given by Mr Close in evidence. If he had seen Mr Stanley had stalled, in my judgment he should have shown a red flag, but by then, in my judgment, Mr Mason may have been so close to the jump that it would probably have made no difference. Therefore, although if a flag was to be shown as a result of Mr Stanley stalling it should have been a red flag because of his vulnerable situation, in the circumstances I do not think that it makes any different to the outcome, and it is certainly not the central issue in the case.

46. I address the question of why Mr Vickers acted as he did, because there has been criticism of the defendant’s system of training marshals. In my judgment there was a failure on the part of the defendant to ensure that the marshalling was adequate. Mr Close, as I said, came across as an enthusiast. I am quite sure that he was aware of the need for safety and he did what he thought was appropriate, and for the majority of the time what he did, in my judgment, was appropriate. However, there is always a risk in employing young boys in such a responsible position. I am sure Mr Vickers was enthusiastic and in the main capable, but because of his youth there is a greater burden on Mr Close, in my judgment, to ensure that he was fully and properly trained to deal not only with the expected, but also with the unexpected. The training, in my judgment, as described by Mr Close was good, but it was not good enough given the obvious risks in the sport and the risks of serious injury should there be any sort of collision.

47. First, it is quite apparent from the evidence which has been given (which I have already described) that it was not absolutely clear when a static marshal should lower the yellow flag after a restart. Both Mr Close and Mr Vickers, in my judgment, gave differing accounts in the witness box from what they had said in their statements. Secondly, my finding is that Mr Vickers was left with the understanding that he set out in his statement to the local authority (which I have read.) In my judgment that understanding was significantly and materially different from the rules, and it does indicate that Mr Vickers, at that stage only weeks after the accident, was not sufficiently aware of the potential or dangers of stalling on a jump after a restart, as Mr Stanley did. There is no evidence that that particular situation was adequately covered in training and in my judgment it ought to have been. Generally the evidence about training was not strong. There were no documents produced; the trainer of Mr Vickers was not called; it all, in my judgment, appears to have been rather informal and, as a result, probably not as detailed and as disciplined as was required for this type of position, dealing with this type of risk.

Liability of the Defendant.

48. Therefore, I do have criticism of Mr Vickers. In my judgment, even on what he knew, he probably looked the wrong way and was not concentrating on his section, that is the section between 12 and 13, and as a result did not see Mr Stanley stall. However, he was a young boy put in a difficult position by Mr Close without being, in my judgment, sufficiently prepared or trained for it. There is therefore liability on the defendant, both vicariously for the negligence of Mr Vickers, and in my judgment directly, for failing to employ adequately experienced or trained marshals.

Liability of Mr Mason.

49. I now turn to the issue of the fault of Mr Mason which is only relevant to his own claim. As a result of my findings, Mr Stanley, the claimant in the first action, will succeed in full. The only issue in relation to Mr Mason’s potential liability, as I see it on my findings of fact, is whether he should have seen Mr Stanley, on table top 12 and whether, had he done so, he would or should have adjusted his riding so as to avoid the accident, or at least minimise its effect. There is no doubt, in my judgment, that Mr Stanley was visible to Mr Mason when Mr Mason was at table top 11 riding cautiously and Mr Stanley was on table top 12. There is, in my judgment, no reason why he could not see him and did not see him. I accept that Mr Mason was concentrating on the marshals, both at table top 11 and then 12, and on the flags that were being or not being shown. However, the presence of marshals does not remove the obvious duty on any rider to look ahead where he is going in order to satisfy himself that the track ahead is, or will be, clear by the time he gets there.

50. The critical issue I think is whether Mr Stanley was stalled at the time he could or should have been seen by Mr Mason, or whether he was still in the process of travelling towards the far edge. In my judgment this is crucial on the issue of contributory negligence. If Mr Mason should have seen that Mr Stanley had stalled, then even in the absence of a marshal’s flag, be it yellow or red, he should not have proceeded to attempt jump 12 at all. However, if Mr Stanley was moving apparently properly away from a stationary position, and had given no indication that there was going to be a difficulty, then I think that Mr Mason was entitled to ride into the bomb hole as he did and thereafter rely upon the marshal to indicate if anything subsequently happened which might require him to stop.

51. Unfortunately, on the issue of whether Mr Stanley was stationary or moving at the time that he should have been seen by Mr Mason, I find myself unable to make a finding. There is, in reality, no evidence as to this particular issue. The only evidence as to how long he was stationary for came from Mr Vickers. However, I have already found that Mr Vickers’ evidence on this and other issues is unreliable. On my finding, Mr Vickers was probably looking the other way at the point that Mr Stanley stopped, and so cannot give any direct evidence as to when Mr Stanley stopped or certainly where Mr Mason was at the time Mr Stanley stopped. Therefore, there is no direct evidence before me at all as to how long Mr Stanley had been stationary.

52. The only other evidence then is that of timings, speed and distances which have the problems which I have addressed earlier. The best evidence I have is that it would take about four seconds to travel from the very edge of table top 11 to the front of table top 12, riding at about the speed Mr Mason was riding. I cannot conclude, on the balance of probabilities, that Mr Stanley had been stationary for longer than that period. He may well have been, he may well not have been, I just do not know. As Mr Vickers impressed on me (and I am sure he is quite right), in reality it all happened very quickly. Importantly in my judgment, it was my impression of Mr Mason that, such was his experience, if Mr Stanley had been stationary and stalled, obviously trying to restart his bike at the top of table top 12, then Mr Mason would probably have seen it and not jumped. In my judgment the fact that he does not remember seeing anyone there does not mean necessarily that there was no one there; merely that there was nothing subjectively for him to register. In my judgment, anything that was seen (or ought to have been seen) by Mr Mason, was probably something that did not register with him as a potential hazard - probably Mr Stanley moving away (and therefore not yet creating the obstruction which ultimately he became.)

53. I bear in mind that it is for the defendant to make out the allegation of contributory negligence against Mr Mason, and on the evidence I have heard and for the reasons I have given, although I found this a difficult issue, I find the allegation is not made out. In those circumstances, there will be judgment on both claims for the claimants against the defendant.

(End of Judgment)

(Discussions on request for Interlocutory Judgment and damages to be assessed on behalf of
the claimant)

(The Defendant’s application for permission to appeal was refused by the Trial Judge and the
Court of Appeal)

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