A court case that has been rumbling on for many months finally reached its conclusion last week. It held that motoring journalist and racing driver Mark Hales was liable for the damage that occurred to the engine of a Porsche 917 that blew up while he was driving it for a track test feature for another title.
I don’t feel I can talk publically about many details of the case: I wasn’t there at the time and Mark’s been a friend for 25 years, someone I’ve always liked as a person and admired massively for his depressingly enormous talent behind the wheel of old racing cars. I have spoken at length to him about the case but not at all to David Piper, the former racing driver who owned the 917 at the time and brought the action. I am clearly in no position to view this objectively and you will have no trouble seeing where my sympathies lie.
I will say however that not a single person I’ve spoken to, which includes not just other motoring journalists but also racing drivers, car dealers and others in and on the periphery of this industry thinks that Hales, who now faces a six figure bill for costs and damages, has been anything other than very harshly treated.
You may wonder why this is. According to a story in the Daily Telegraph, Piper’s case was that Hales was in the car on a ‘bend it, mend it’ basis so as I understand it, it boiled down to deciding whether the engine blew while Hales was in the car, or whether it blew because Hales was in the car – i.e. he missed a gear that shouldn’t have been missed and buzzed the motor. The court took the latter view.
Unsurprisingly, the case has set the remote enclave of the Twittersphere in which motoring writers reside ablaze. And amid the outpourings of support for Hales and some perhaps less generous observations about Piper, talk has turned to the future of car testing in magazines.
Those of you who are regular readers of the print version of Motor Sport will know I have a vested interest here. Over the last 16 years I’ve been working for the title it has been my very great fortune to have driven many dozens of racing cars for track tests of the kind in which Hales was involved. And now many are suggesting these days are over; that no journalist will climb aboard these cars knowing the liability they might face, and that no owner will indemnify a journalist against all and any damage caused while they are at the wheel. One, perhaps a little hysterically, has suggested that even the Goodwood Revival might be threatened, I guess because an owner could in theory at least send the bill for a blown engine to the professional racing driver who was on board when it went bang. Whether a court would then cite this new precedent and insist he pays it is another matter.
My experience as perhaps the third most experienced British motoring journalist currently regularly testing old racing cars for car titles (after, of course, the inestimable Tony Dron) is that this is all a bit over the top. But however hard I look at it, I can only conclude that Hales has simply been appallingly unlucky and that what happened to him will remain the exception rather than the rule in future.
Wishful thinking? Perhaps, but my experience of owners who have let me drive their cars is that they are generous, trusting enthusiasts who understand the risks entirely and are perfectly happy to shoulder them themselves, partly because they can afford to, but more importantly, they want to see their cars in the magazine for all sorts of obvious reasons. Had Mark been some inexperienced idiot with no mechanical sympathy then Piper’s position would be easier to understand. But Mark is not an idiot; he is a professional racing driver and tutor of many decades standing. Had that not been the case I doubt Piper would have let him near the car.
Where does this leave track testing in car magazines? For some time now I have explained to owners that if I am to drive their car they must remain liable for anything that happens while I’m on board. I simply couldn’t afford to do it any other way. You can see this as me covering my own backside – and you’d not be wrong – but it is chiefly a courtesy because if I’m going to hurl someone else’s rare and precious racer around a track, I feel the least I can do is be transparent about the basis on which I do so. And to date not one has thought better of it and walked away from the arrangement. To me, it goes to show how unfortunate Hales was to have encountered an owner unprepared to accept that sometimes things go wrong when even the best old cars are driven by the best track testers and instead elects to hound him through the courts for damages that I for one could not remotely afford.
I hope Mark continues to test and race competition cars – our little world would be poorer without his input. There are plans afoot among our community to try to do something to help so if you use Twitter follow the tag #markhalesinvitationaltrophy or I’ll keep you updated at @Andrew_Frankel.