Catherine Peck of 12KBW appeared on behalf of the Third Party, AR Richards Limited and was instructed by Rebecca Woods of Kennedys Law LLP and Gerard King of Davies in a claim arising out of a fatal accident at the Birmingham Wheels racetrack.
The event organiser settled the Claimant’s Fatal Accidents Act claim and brought a claim against the employer of the recovery vehicle. After a 3-day liability trial, HHJ Truman, sitting in the County Court at Birmingham found the Defendant had not established negligence on the part of AR Richards and dismissed the claim against the Third Party.
The proceedings arose out of the tragic death of Mr Colin North at a stock car Gala Night on 16 November 2019. Mr North, a sponsor at an event being run / operated by Incarace Limited, sustained fatal injuries when he was struck by a tractor being driven by an employee of AR Richards Limited. The accident took place between races, when both the tractor and Mr North were on the racetrack during the recovery of stricken vehicles.
Incarace had previously pleaded guilty to offences relating to their failure to ensure persons not employed by them were not exposed to risks to their health and safety, and for failing to make a suitable and sufficient assessment of the risks arising out of the movement of the persons onto and around the racetrack / the movement of vehicles including recovery vehicles. Whilst Incarace admitted primary liability and settled a claim made by Mr North’s widow/on behalf of his estate, they brought proceedings for a contribution against AR Richards, alleging breach of duty on their part/the part of their driver in particular for failing to observe Mr North prior to the collision.
The Defendant and Third Party obtained expert evidence in accident reconstruction and a joint statement was prepared. Shortly before trial, Incarace communicated their intention to not seek to rely upon their own expert’s evidence and were successful in their application for permission to cross-examine the Third Party’s expert, Mr Mottram. Witnesses were called on behalf of Incarace and AR Richards.
Issues included theoretical lines of sight (which were impacted by hydraulic arms on the front of the tractor) and the concept of synchronised obscuration – namely the phenomenon by which a pedestrian moving in the same direction as a moving vehicle, remains obscured within a blind spot over an extended period of time.
The judge found that Incarace’s risk assessment failed to deal with the recovery process / sponsors on the track and that no instructions had been given to AR Richards drivers to travel at no more than 5mph. Incarace’s witness agreed in cross-examination, that AR Richards had no say in how the race was organised or when to start the recovery process, they had no say in access to the track or who was on the track, that Incarace did not provide AR Richards staff with a safety briefing, that AR Richards staff were acting under the instruction of Incarace and were entitled to assume that Incarace would use reasonable care and skill and have appropriate risk assessments and reasonable control measures regarding pedestrians on the track.
The judge accepted that the driver of the tractor had a duty to take reasonable care to avoid coming into contact with others given the lethal capability of the vehicle, however it was not an absolute duty, the duty did not require a counsel of perfection or the benefit of hindsight, and what was reasonable depended on the surrounding facts.
Having heard the evidence, the judge found that Incarace had failed to prove their case that in any window of opportunity in which the tractor driver could theoretically have observed Mr North, that he was in breach of duty for not having done so. Events leading to the incident were captured on CCTV footage taken from two cameras. During cross-examination and closing Catherine carefully addressed each point in the footage. Whilst it had been contended on behalf of Incarace that the tractor driver had been distracted, the judge accepted submissions made by Catherine that the driver could not be criticised in the time available for not observing Mr North prior to impact and that the situation could be more properly characterised as there being other potential hazards to which the tractor driver would need to have regard, particular when under a tight timescale and having received instructions to clear the track quickly.
The Court accepted Catherine’s submission that the tractor driver should not be cross-examined with reference to the CCTV footage itself but rather on the basis of screenshots from that footage. Despite the driver’s statement not setting out in detail where he was looking prior to the impact (and the judge finding that the tractor driver plainly did not want to think about the events leading to the accident in any detail), the judge found that she was able to consider the CCTV evidence when determining what the driver could or should have seen. She found that until the marshall on the gate had signalled to the tractor driver, he did not know which way he was required to go; his attention would have been on the tractor in front reversing, as a matter of logic he may have needed to consider the tractor behind him and that he was required to watch a car which on an intersecting path (in case it did not stop) and then allow sufficient clearance when moving into the track.
Had the tractor driver looked to his right whilst Mr North was stationary next to someone wearing a Hi-Vis jacket, Mr North may not have been perceived as a hazard but rather been perceived to be someone who was being escorted. Mr Mottram, expert called on behalf of the Third Party confirmed that in a subsequent period had the tractor driver glanced right, Mr North would not have been moving laterally but away, and would have been less noticeable and a further period he would have been in a blind spot. The next stage of the manoeuvre would have required the tractor driver to negotiate a stationary stock car on the track which still contained a driver. The final period on the approach to the accident, by reason of lines of sight and blind spots Mr North would have been out of view.
The police officer investigating the accident felt that lighting might have impacted on conspicuity and the judge was of the view it was not possible on the evidence available to find what would have been visible. The judge rejected Incarace’s submission that this was akin to a roadway, but rather this was meant to be a highly controlled workplace environment where tractors were clearing the track and in which pedestrians should have been wearing appropriate clothing and should not have been unaccompanied.
Incarace had not proven that the tractor driver or AR Richards were negligent. Had the judge found liability proven, liability would have been assessed at 80/20 in the Third Party’s favour. New measures which had been introduced by Incarace following the accident had not required the benefit of hindsight. Both Mr North and the tractor driver had been placed in a dangerous situation, with Incarace having much greater opportunity to avoid.
Whilst the case was determined on the facts, it is a useful reminder that even in cases in which a vehicle collides with a pedestrian, the burden is on the party alleging negligence to establish both breach of duty and causation. Having carefully addressed the Court as to the various allegations and phases leading to the accident, Catherine was able to establish that the burden of proof had not been discharged.
