A SCOT who lost his legs at an off-road motoring event is pursuing a £1m damages claim against the governing body for four-wheel racing in the UK which will have “far reaching implications” for sport.
Gerry McPeake was 32 when he was competing in the Scotia Winch 4×4 Challenge at Griffin Forest, near Aberfeldy, Perthshire, in June 2015 when his legs were destroyed when a boulder used as an anchor to winch a car uphill came loose and hurtled down, crushing him between two vehicles.
Lawyers for Mr McPeake from Alloa, Clackmannanshire are arguing that The Motor Sports Association (MSA), the body that organises and licences the annual event, had “a duty of care” to the participants in the competition organised by them.
They allege that had a competent marshall in attendance would have been obliged to intervene to prevent “the unsafe action” taking place and the accident would have been avoided.
Amber Galbraith for the MSA, now known as Motorsport UK, the national membership organisation and governing body for four-wheel motorsport in the United Kingdom, in a recent hearing has warned that the principal at stake would have “far-reaching implications for motor sport and perhaps further”.
Jim Clark Rally ‘in jeopardy’ as 2017 event scrapped in wake of death crash
The accident happened eight months after an expert group gave its first guidance to improve safety at motor sport events in the wake of the 2014 Jim Clark Rally crash (below) in the Borders in which three spectators were killed.
Lord Brailsford has agreed that a two day hearing over the “breach of duty” claim will now be held.
The orienteering event had involved 4x4s tackling tough terrain, navigating boulders, tree stumps and steep slopes using winches and straps.
Each vehicle involved has a two-person team of a driver and a winchman who stands outside the vehicle on tricky manoeuvres to help give direction.
Mr McPeake, now 37, was helping another team up the hill when a boulder came loose and pinned him against another rock, crushing his legs and hand.
He was trapped for nearly five hours because the site was too inaccessible for the emergency services.
Mr McPeake’s father, also Gerry said those who had removed the boulder from his son had saved his life.
“He was badly trapped under the boulder for nearly five hours. How he managed to stay alive is a miracle. The helicopter got to him and he is alive but tragically he lost his legs. Thank god he is still with us.”
Eventually an RAF helicopter took Mr McPeake to Dundee’s Ninewells Hospital, where both his legs had to be amputated.
Mr McPeake, a car mechanic for 17 years, was fitted with new prosthetic legs and was supported for walking through regular physiotherapy sessions.
At a preliminary hearing, Amber Galbraith QC for the MSA indicated that if the marshalling had been different it would not have prevented the accident.
“It is a complex action taken as a whole and is one that would have significant repercussions,” she said.
“The allegation is that the [MSA] the body responsible for motor sport in the UK have failed in a duty of care to the pursuer.”
She said the MSA were an “internationally recognised body” that did not just oversee the “rather novel” event, but motor sport in general.
“The pursuers say there is a breach of duty. In my submission it is not only a novel assertion but one which would have far-reaching implications for motor sport and perhaps further.
“The pursuer would have to contend what should have happened which would have altered the outcome.”
She said Mr McPeake’s lawyers allege the attempt by another competitor’s car to pull another car was an action a “competent marshall would have recognised as obviously unsafe”.
She said: “There would have to be proof as to what in the context of an event like this would be an unsafe practice. It would have to be proved there was insufficient marshalls.
“The pursuer avers that had their been a competent marshall in attendance, he would have been obliged to intervene to prevent the unsafe action taking place and the action would have been avoided.
That is the crux, but in my submission, that would require a significant amount of evidence to prove what a competent marshall would have done, whether there would have been an obligation to intervene and whether this was unsafe in the context. And if the marshall had intervened would it have actually changed the outcome?
“There would be quite a significant amount that [Mr McPeake] would require to prove, which would cover the organisation of the event, how the boulder came to be dislodged, but in addition to that the court would need to hear evidence about what normal practice was in such events.
“Being an event that very few people are familiar with, there would have to be evidence on what is considered normal, given what is obviously an intrinsically hazardous pastime.
She said there is “no doubt Mr McPeake suffers a devastating injury” but there would need to be expert evidence in this case.
The first recommendations published by the expert group set up to improve safety after the Jim Clark Rally crash included an independent safety delegate for each rally.
Better training for marshals and improved safety messages for spectators were also advised.
The review followed the death of spectators Iain Provan, 64; Elizabeth Allan, 63; and Len Stern, 71, at the Jim Clark Rally in 2014.
Elizabeth Allan, Iain Provan and Len Stern died at the Jim Clark Rally in 2014
Earlier at the same event but in a separate incident spectators had been injured – and in February, 2013, Joy Robson, 50, was killed watching the Snowman Rally in the Highlands.
And in January, 2015, six months before the Scotia Winch 4×4 Challenge a safety review suggested marshals should undergo mandatory training before working at motor-sport rallies.
The safety review group was set up by the Scottish government and it included motor sports representatives, Police Scotland, the Health and Safety Executive, and former world rally champion Robert Reid.
Sir Jackie Stewart, who won the Formula One world drivers championship three times during his career, was an advisor to the group.
Their key recommendations included tighter control over volunteer marshals including the introduction of a mandatory marshal licensing scheme, requiring marshals to obtain a licence following mandatory training and experience.
It suggested ground rules were drawn up for spectators, marshals and competitors on assisting cars back onto the road – a common practice at rallies.
It suggested improved communication with spectators and the recommended adoption of international standards for identifying low, medium and high risk spectator areas.
And it called for stricter control of marshalling numbers. That included a requirement for marshal numbers to be published in the safety plan and adhered to for each rally stage.
Sir Jackie Stewart said after the review was published: “I am very proud to have been part of an excellent process that was driven by the Scottish government.
“I believe that what has been achieved in Scotland will be an example that will be taken up on a global basis by the sport of rallying including the world governing body the FIA and UK governing body MSA.”
He has had to took his request for a copy of the MSA’s accident report to the Information Commissioner after it was refused on several occasions Five years on, he still has not received it.
The MSA refused to let him see the full report despite a ruling from the Information Commissioner’s Office (ICO) that the decision is “likely” in breach of data protection laws.
In an email sent to the McPeake family, the MSA states the report has not been released because it contains “little information” about Mr McPeake.
The ICO cannot compel the MSA to release the report but Mr McPeake’s lawyers had planned a court action to obtain a copy.
Mr McPeake Snr said: “Even now we are not sure even who came to my son’s aid.
“We have never had an official report, and Gerard was in and out of consciousness so we are very hazy as to what he can recall himself. And that’s why we wanted the report from the MSA.”
The MSA were approached for comment.