Sports car racing driver David Piper (a former F1 driver who lost a leg below the knee in an accident driving a Porsche 917 during the filming of Steve McQueen’s 1971 film “Le Mans”) recently won an important case in The Royal Courts of Justice in London. The high court awarded damages and legal costs likely to be around $175,000 against automotive journalist and racer Mark Hales, who was stunned and angered with the judgment. In his written response posted on the Internet, Hales was quite vocal in his criticisms of the judge. Hales wrote that he will lose his house […]
Sports car racing driver David Piper (a former F1 driver who lost a leg below the knee in an accident driving a Porsche 917 during the filming of Steve McQueen’s 1971 film “Le Mans”) recently won an important case in The Royal Courts of Justice in London.
The high court awarded damages and legal costs likely to be around $175,000 against automotive journalist and racer Mark Hales, who was stunned and angered with the judgment.
In his written response posted on the Internet, Hales was quite vocal in his criticisms of the judge. Hales wrote that he will lose his house and be forced into bankruptcy. An outpouring of support — most of it critical of Piper’s action in bringing this case — appeared on a number of Internet blogs and chat boards.
The judgment stems from a 2009 incident in which Hales was driving Piper’s Porsche 917, valued at $2 million (this car is a replica built from Porsche parts; Piper also owns an original 917), at Britain’s Cadwell Park circuit. The drive was part of a comparison test between the 917 and a Ferrari 512S owned by former Pink Floyd drummer Nick Mason, for an article to be written by Hales and published in Octane and Auto Italia magazines. After several laps around the track, the 917’s engine blew. Piper blamed it on a missed shift. Hales insisted it was caused by a mechanical problem with the 917. The judgment included some $75,000 for the cost of repairing the engine and Piper’s loss of use of the car, and, when Piper’s legal fees are added in, will likely total about $175,000.
Some facts track
The parties agreed that Hales came up with the story idea and approached Piper to loan him the 917. Piper agreed to loan him the 917 and his mechanic for the sum of £2,000 (about $3,280 in 2009), which Hales paid. Before Hales set out on the track, Piper instructed him to keep the engine revs below 7,000 rpm. Hales agreed, stating that he was “not competing and was not under pressure to deliver a fast lap.” The engine blew when it revved to 8,200 rpm.
Most facts diverge
Hales asserted, Piper denied, and the judge did not accept, the following as facts:
• He and Piper had a deal that while Hales would provide insurance for crash damage (which Octane provided), Piper would assume all responsibility for mechanical damages.
After a few laps, Hales came in to the pits and explained to Piper’s mechanic that he was having trouble with the gearbox, and that it was popping out of third gear. The mechanic said it was a problem with the shifter, refused to adjust it, and instructed Hales to “just be careful.”
He did all he could to “be careful,” but the transmission popped out of third gear as he was accelerating, causing the excessive revs.
Piper’s case was pretty simple:
There was “no way” he would have accepted responsibility for driver error, especially for the measly £2,000 charged.
Richard Attwood testified that he drove the 917 at Goodwood a month before and experienced no gearbox issues. He also testified that 917s are difficult to drive with a long throw to third gear — one has to be careful — and Hales was advised about that.
Piper’s mechanic testified that there had not previously been any such problems with the car, and he did not know of any general “popping out of gear” issues with 917s.
Shortly after the engine repair, but without any gearbox repairs, the 917 was raced without incident.
Hales simply missed a shift, causing the damage.
The legal standard
Piper’s legal claim was that Hales was negligent in his driving, which caused the damage. Since Hales had rented the 917 at his own request (a “bailment” under British law), he owed a duty of care to Piper to use reasonable skill in his use and driving of the 917 — and the burden lay with Hales to prove that he had met that duty of care. His missing third gear and flooring the throttle constituted Hales’ negligence. The court agreed with the legal standard. The question at trial was, “What happened?”
My word against yours
This was the proverbial “my word against yours” situation. Piper and Hales told very different stories, and they could not both be accurate. Most readers would assume that this would end up in a tie (which would mean that Hales would lose because he had the burden of proof), but that isn’t what resulted.
Judge Simon Brown gave a very lengthy explanation as to how judges go about deciding which to believe of two witnesses who tell opposing stories. He stressed as key factors: (1) memories change with time, so early statements are the most reliable; (2) written confirmations or lack thereof; (3) consistency in actions, statements and evidence; and (4) demeanor.
Credibility matters
Applying those factors to the evidence presented to him, Judge Brown determined that Piper was pressed hard on cross examination and got a little confused and vague at times, but that was understandable for a man in his 80s. However, he was sharp and consistent on every material point to his case.
In contrast, Judge Brown found a number of reasons to question Hales’ credibility:
Hales gave varying explanations as to the mechanical cause of the gearbox problem — wrong gearbox turret, defective spider and slider, and defective shifter adjustment (which Hales insists upon, but the judge did not actually mention) — but never offered any independent evidence. Hales also failed to have the gearbox inspected after the event to support his assertions.
Shortly after the incident, Hales signed a statement stating, “I admit the damage to the engine was caused by my failure to select the gear correctly.” In court, he tried to sidestep that apparent admission by claiming that he wrote that only to assist Octane in its unsuccessful insurance claim, which the judge took unfavorably as an unsupported suggestion of insurance fraud.
His claim that Piper’s mechanic was told about the gear problem and nonetheless told Hales to keep driving was too improbable to be believed. The judge thought any mechanic in such a situation would direct him to stop driving the car.
In the end, the judge simply believed Piper and disbelieved Hales. And to add insult to injury, which may make the judgment harder to appeal, the judge stated that even if he had accepted Hales’ version of the facts, he would still have found him liable — once he discovered the gearbox problems, it was reckless of him to continue driving.
Takeaways for readers
There are several observations that may be relevant in other situations:
Hales has vociferously criticized the judge for not fully recognizing the merits of his case. But trial of a legal case is a presentation of two competing stories. You tell yours in the manner you believe will be the most convincing. In the end, you learn what the judge or jury did not understand or believe, but you don’t get another chance to explain. In the end, it isn’t so much a question about what really happened, but what you were able to get across successfully. If you missed the mark, well, that’s the risk of litigation.
Readers will remember Emmison’s “You Bend It — You Mend It” article (December 2011, p. 28) and think there may be established rules of custom to cover these things. Hales argued that angle — it was an implied term of their contract that Piper would bear the risk of mechanical failure because of time-honored custom in the motor-racing field. The judge was not impressed by that argument and found that no such custom or practice existed, certainly where the context was not racing and the car was being used commercially for a non-competitive test.
The owner and his guest driver should determine in advance where the risks of an uninsured accident or mechanical blow-up will lie, and should record that agreement in writing. There is no need for a complicated document, and these days you can do it by an email exchange on your cell phone. This applies both on the race track and when testing a car on the public highway. Hales could perhaps have avoided this liability if, in his email contract to rent the 917, he had required Piper to bear all mechanical damage repair costs, ensuring clarity and protection for both parties involved. Piper might well have refused that term, but at least the issue would have been out in the open, and they would have resolved it beforehand.
Under the British legal system, the losing party in a civil litigation generally bears the winning party’s legal fees — in addition to his own legal costs. With barristers on both sides, the total legal bill here was always going to be more than twice the money in issue. So this case should not have been litigated — it should have been settled at an early stage — arguably with Hales and his magazines paying or contributing to Piper’s engine rebuild costs. There is no sense in betting your house on why a gear was missed and a Porsche engine scrambled its valves.
There is also a strong lobby — at least in European circles — that this old-car hobby that we love could do without the scourge of litigation, and that Piper should not have sued Hales. But he did, and we can’t know if he was unreasonable or the settlement offers were unreasonably low. But either way, the uncertainties of these situations are now out in the open. As famed motor historian Doug Nye was quoted in the Daily Telegraph: “We all knew there was a plate-glass window out there, we just didn’t expect someone to throw a brick through it.” ?
Martin Emmison is a partner specializing in collector-car matters at Goodman Derrick LLP, solicitors. His email address is memmison@gdlaw.co.uk
John Draneas is an attorney in Oregon. His comments are general in nature and are not intended to substitute for consultation with an attorney.