Case No: B3/2009/1168

Neutral Citation Number: [2009] EWCA Civ 1204
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD DISTRICT REGISTRY
(HIS HONOUR JUDGE PLATTS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 28th October 2009

Before:

LORD JUSTICE SEDLEY
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Between:

	Stanley & anr	Respondents/Claimants	
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Close T/A Armthorpe Moto Parc	
Appellant/
Defendant	

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Mr A Barker QC (instructed by Paris & Co Solicitors) appeared on behalf of the Appellant.
Mr M Duthie (instructed by Express Solicitors, Wake Smith & Tofields) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sedley:

1.	Mr Anthony Barker QC renews the defendant’s application for permission to appeal against a finding of liability made by HHJ Platts in the Sheffield District Registry in May 2009, in favour of two motor cyclists, Paul Stanley and Ryan Mason, who were visitors at, and users of, a landscaped dirt track run by the defendant.  The track is there to enable enthusiasts to do what many of us wish we had done in our youth, to run over undulating terrain and take off and land in relative safety on a motorcycle.  This is done by having what are called “table tops”: that is, raised platforms on the track with, between them, steep dips known as “bomb holes”.  The system has to be very carefully marshalled, for obvious reasons, to prevent one rider hitting another, particularly because vision from one point to the point ahead is not constant and not dependable.  There is therefore a marshal at each point.  

2.	The marshal at the point with which this case is concerned was a lad called Vickers, only fourteen years old, with limited experience.  Mr Stanley was at table top 12 and was setting off when Mr Mason and another rider, Mr Crowther, set off from table top 11.  By reason of events which it was the judge’s task to ascertain there was a collision in which both Mr Mason and Mr Stanley were quite badly injured.  What had happened was that Mr Stanley had apparently set off but had stopped again within a very short distance, out of Mr Mason’s sight until it was too late.  Mason had not been flagged down by Mr Vickers in time to avoid the accident.  

3.	The flagging system is described in the rules, as far as material, as follows:

“Static yellow flag is to warn riders of a stalled or fallen bike not in any immediate danger between marshal points, this is generally used during the week.  

Waving yellow flag in a figure of eight motion is to warn oncoming riders to show caution and to slow down, i.e. stalled/stationary bike or fallen rider not in immediate danger.  

Waving red flag in figure of eight motion is to stop all riders immediately.”

4.	Permission to appeal was refused on sight of the papers by Waller LJ for two very short reasons: “1) The case turned on findings of fact by the judge; 2) There is no reasonable prospect of reversing those findings in the Court of Appeal”.  I am bound to say that the grounds of appeal which were before Waller LJ make that conclusion unsurprising, but the renewal statement, which Mr Barker and his junior Mr Duffy have put before me today, makes the case for an appeal somewhat clearer.  The difficulty that they face is that the findings of fact of the judge are all necessarily accepted because they were all evidence-based, and it is what the judge made of those findings that has to be attacked.  The critical findings are set out -- I will not read them out -- at paragraphs 43 and 44 of the judgment.  What they amount to is that that Mr Stanley had set off from table top 12 but had stopped again within a relatively short distance out of Mr Mason’s sight, and that Mr Mason had not received the warning which he should have had from Mr Vickers by the use of the yellow flag that there was danger in going on.  Indeed, the judge went on to say that if Mr Vickers had seen that Mr Stanley had stalled (although stalled may not be quite the right word) he should have shown not a yellow but a red flag.  But that would have made no difference because, by then, Mr Mason would have been too close to avoid an accident.

5.	In paragraph 52 the judge says this:

“The only other evidence then is that of timings speed and distances which has the problems of which I have addressed earlier.  The best evidence that I have is that it would be about four seconds from the very edge of table top 11 to the front of table top 12, riding at the speed of 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, my impression of Mr Mason was that such was his experience that 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.”

6.	The way Mr Barker puts it to me today -- and I hope I do his argument justice -- is that there can have been no impropriety in Vickers’ withdrawing the yellow flag, if this is what happened, while Mason was still on table top 11 and Stanley still moving on table top 12.  If that happened, says Mr Barker, it was entirely within the rules, which are themselves not criticised.  But, he goes on to argue, once the judge has found, as he did, that the agreed figure of four seconds was the best that could be arrived at, he will have had no factual basis for finding that Mr Stanley had stopped in sufficient time for Vickers to react and to prevent the accident.  It would follow that there was no need for the yellow flag.  Putting it another way, and I hope again I understand this rightly, if Mr Stanley had stalled more than four seconds before the collision there was time for Mason to see him and avoid the accident.  If that were the case then the fault would be Mason’s and not the defendant’s.  If, however, Stanley had stalled less than four seconds before the collision, nothing that Vickers could have done would have prevented the occurrence of the accident.  

7.	The difficulty which, it seems to me, this argument, cogent though it is, encounters is that it does not have sufficient regard to the findings of the judge who was not deciding this case on the four-second calculation either way.  He was looking, as paragraphs 43 and 44 make clear, at the probabilities of what happened.  He found that it was almost immediately after the accident that the red flag was shown, but that Mr Vickers had probably shown a yellow flag for a short time after the restart as he had been trained to do.  However, says the judge:

“[…] on the balance of probabilities, I find that when he saw Mr Stanley move off from his stationery position immediately in front of him, and any others who might have been there, I find that 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 at that stage he was 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 the 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.”

8.	That seems to me to be a narrative finding which is based on an appraisal not only of the arithmetical facts but on the judge’s assessment of the witnesses and the totality of the evidence.  It is a finding of inattention -- understandable inattention because the boy was looking to see where the other bikes might be coming from and not keeping his eye, as he should have been, on where the bike already on table top 12 had got to.  By the time he realised that (and one is well within a four-second frame) it was too late.  Mason had set off and was riding towards table top 12 and taking off at the near crest with the result that he could do nothing to avoid colliding with Mr Stanley.  

9.	While I understand, I hope, the nature of Mr Barker’s argument, it seems to me not to engage sufficiently with the judge’s reasons to undermine them.  The two are parallel but do not meet.  I have to ask myself, therefore, where there is any real prospect that an appeal would succeed on the basis that Mr Barker has advanced in upsetting those findings of the judge about Vickers’ momentary inattention, which was sufficiently critical to have made the difference between an accident and no accident.  I have to say that I do not think there is.  This was fact-finding which was detailed and careful. Undoubtedly it does not correspond with the way the defendant sees the issues or in which Mr Barker presents them, though I do not think that is a fatal failing.  I think that the judge’s findings were findings that he was entitled to arrive at (indeed, Mr Barker does not dispute that in relation to the primary findings of fact) and his conclusions were conclusions of fact which again seem to me to have been within the proper range of what was open to him.  I realise that this has serious implications for the defendant in terms of the possible quantum of damages, but what this court is concerned with is the prospects of upsetting the foundational findings of fact.  I am afraid I do not consider those to be sufficient to warrant permission to appeal.

Order:  Application refused