Piper v. Hales

http://www.trackdriv...ales_appeal.php

Does anybody know David Piper's side of the story? Or if it has been published anywhere on the 'net? He must have had very convincing reasons for resorting to the law courts.

I suppose the outcome is better than what could happen in some parts of the world, where a gun is often used to settle even minor disagreements.

In the case of Mann v Brewer it was the CoA that ultimately ruled.

cannot see an appeal in this case however as the insurance statement will always remain pivotal.

The Court of Appeal can only rule on errors of law. They won't look at evidence, unless someone can demonstrate that the judge's assessment of it was perverse - and even in those circumstances they'd normally send it back for re-trial.

The best legal argument I can see Hales could deploy is that the judge did not apply the proper standard of care. I.e. even the best of drivers could have made the same mistake. I am somewhat surprised he did not bring in Octane/the Italian magazine as co-defendants, on the basis that they were vicariously liable for their "agent", or indeed Piper did not sue them all; a claimant normally looks to the deepest pocket.

Why should David Piper bother to tell his side of the tale as he has recovered his money except to satisfy a few nosey people who can continue to drone on about the pros and cons .

I know both parties and take no sides, but I think when you read this clause from the judgement, it is pretty easy to see how the judge decided as he did:

The Defendant himself composed a signed and dated (3 June 2009) detailed note for Octane’s insurers relatively shortly after the incident. This included the frank admission that: "There was no fault apparent with the car before this incident, and I admit the damage to the engine was caused by my failure to select the gear correctly”.

It is a real shame this ended up in court and that common sense wasn't exercised well before it got to that stage. As others have pointed out, the damage bill has been dwarfed by the legal fees.

I know both parties and take no sides, but I think when you read this clause from the judgement, it is pretty easy to see how the judge decided as he did:

The Defendant himself composed a signed and dated (3 June 2009) detailed note for Octane’s insurers relatively shortly after the incident. This included the frank admission that: "There was no fault apparent with the car before this incident, and I admit the damage to the engine was caused by my failure to select the gear correctly”.

It is a real shame this ended up in court and that common sense wasn't exercised well before it got to that stage. As others have pointed out, the damage bill has been dwarfed by the legal fees.

..but then it almost invariably is!

Interesting reply note here from MH's legal team to the judgement:

http://www.trackdriv.....20v Hales.pdf

Edited by rwills, 24 January 2013 - 09:04.

Interesting reply note here from MH's legal team to the judgement:

http://www.trackdriv.....20v Hales.pdf

I note in second bullet point that an invoice is dated 30th February !!

"A Courtroom is an imperfect venue in which to resolve disputes. "

A strange statement for a legal team to make. Perhaps they should have made that point to Mr Hales before the case went to court?

"This is a true and factual account prepared by Mr Hales’ legal team."

Yes, of course it is. Bad loser? Bad lawyer, more like.

"A Courtroom is an imperfect venue in which to resolve disputes. "

A strange statement for a legal team to make. Perhaps they should have made that point to Mr Hales before the case went to court?

It was not Mark's choice to go to court.

Would I be correct in thinking the judgement covers certain points but not necessarily everything discussed in court? As an example the Piper side obviously pushed the historic point about missed changes in period by Siffert et al, inferring that if notable "famous" drivers can make mistakes...& this obviously registered with the judge, otherwise it wouldn't have been mentioned in the judgement. Yet, as pointed out by Artidesco, there's the printed words of the John Wyer in "That Certain Sound" referring to the inherant faults in the 917 gearbox. It makes me think perhaps a defence along those lines, citing historic reference wasn't considered worthy by Hales. However, I wasn't there, so it's only supposition

As a matter of record the 'Artidesco' mentioned above is nothing to do with me as I have only today read this thread for the first time.

Further I do not, regrettably, own a copy of "That Certain Sound" nor have I ever read it.

My only view on this matter is that it is very sad that those concerned could not come to an understanding before it came to lawyers, much less court.

As a matter of record the 'Artidesco' mentioned above is nothing to do with me as I have only today read this thread for the first time.
Further I do not, regrettably, own a copy of "That Certain Sound" nor have I ever read it

Sorry my error - it was someone else.

As a matter of record the 'Artidesco' mentioned above is nothing to do with me as I have only today read this thread for the first time.

Further I do not, regrettably, own a copy of "That Certain Sound" nor have I ever read it.

My only view on this matter is that it is very sad that those concerned could not come to an understanding before it came to lawyers, much less court.

I must 'sound' like you, old friend... I'll lend you my copy if I ever see you. And my view (and that of most on this forum, I'm sure) is the same as yours.

Don't think anyone has mentioned this, and you can fight amongst yourselves as to whether it's relevant, but in 'Lunch With...' Keith Greene and Chris Craft in May 2012 Motor Sport, Chris Craft told how, when he was driving one of David Piper's other 917 chassis* at Norisring, he locked up after selecting first for the hairpin and stuffed it in the armco. He goes on to say that it was his fault, so he paid Pipes for the damage. When I read that at the time, I got the impression that he did it because he felt honour bound to do the decent thing, and I hope that was the case, but this business with Mark Hales makes you wonder if Craft had a similar 'you bend it, you mend it' arrangement with Piper back then (1972). He also had a suspension failure going down through the Foxhole at Nurburgring in the same 917 but apparently didn't pay for that, or wasn't held liable (not his fault, of course). I think there are folk on here who know Chris Craft, and it would be interesting to hear his take on the Piper/Hales case, and whether or not he actually did have a similar arrangement with Piper.

(*another 'bitza', built up around a wrecked or scrapped 917 spaceframe salvaged from the yard at Zuffenhausen - arttidesco has photos of that chassis in the Silverstone paddock after Piper had sold it to Peter Norman; it was restored in 2009 by Gunnar Racing and is referred to by Kevin Jeannette as '0-twenny-one' but probably isn't really - at least, not much.)

Edited by markpde, 25 January 2013 - 14:56.

I am somewhat surprised he did not bring in Octane/the Italian magazine as co-defendants, on the basis that they were vicariously liable for their "agent", or indeed Piper did not sue them all; a claimant normally looks to the deepest pocket.

I´m sorry, but why would it have been possible. They were only organizations, that Hales was planning to sell his article. Hales set up the test, and owned the rights to the article. He sold the right to print his article, amongst others to Octane. They agreed that the price for the article would be that Octane would pay for the insurance for the test. This insurance was for a driver error. Octane doesn´t own the article, Hales retains the rights in order to sell it to other organizations.

Now why on earth Octane would be responsible, when things went haywire, when they weren´t the organizer of the article, nor did not own the result. Hales set up the test in a manner that he alone would own the rights to the article, so that he could sell it to multiple organizations, in order to maximize his profits. There is absolutely nothing wrong with trying to maximize your profits, but since the commercial exploitation rights were fully his, so were the liabilities.

Why should one of Hales´s customers be liable in any way for what happened during the test?

-J

Edited by J, 24 January 2013 - 16:51.

I´m sorry, but why would it have been possible. They were only organizations, that Hales was planning to sell his article. Hales set up the test, and owned the rights to the article. He sold the right to print his article, amongst others to Octane. They agreed that the price for the article would be that Octane would pay for the insurance for the test. This insurance was for a driver error. Octane doesn´t own the article, Hales retains the rights in order to sell it to other organizations.

Now why on earth Octane would be responsible, when things went haywire, when they weren´t the organizer of the article, nor did not own the result. Hales set up the test in a manner that he alone would own the rights to the article, so that he could sell it to multiple organizations, in order to maximize his profits. There is absolutely nothing wrong with trying to maximize your profits, but since the commercial exploitation rights were fully his, so were the liabilities.

Why should one of Hales´s customers be liable in any way for what happened during the test?

-J

Quite right, but just to add Mark could only afford to do it this way. These days no one magazine would stump up the costs of doing that feature.

Quite right, but just to add Mark could only afford to do it this way. These days no one magazine would stump up the costs of doing that feature.

I understand that, and there is absolutely nothing wrong with it. I just don´t understand the desire to blame Octane for this.

-J

Sorry my error - it was someone else.

Accepted

I must 'sound' like you, old friend... I'll lend you my copy if I ever see you. And my view (and that of most on this forum, I'm sure) is the same as yours.

Thanks I'll pop bye on my next visit to Bonnie Scotland

(*another 'bitza', built up around a wrecked or scrapped 917 spaceframe salvaged from the yard at Zuffenhausen - arttidesco has photos of that chassis in the Silverstone paddock after Piper had sold it to Peter Norman; it was restored in 2009 by Gunnar Racing and is referred to by Kevin Jeanette as '0-twenny-one' but probably isn't really - at least, most of it isn't.)

You mean this one :-



[url="http://img684.images...76291703.jpg/"][/url

?

If Mark admitted to missing a gearchange (for whatever reason) and overrevving the engine, he had no chance in court.
A rev-limiter always reacts too late if you buzz the engine, it would not have made a difference.
It just shows that MH as a a free-lance journalist, arranging a test on his own, selling an article to various magazines, has never had proper legal advice on the risks he takes.

All journalists doing these types of tests should have the owner sign an agreement with all the responsibilities in case of any incident.
You can insure for a crash in most cases but for mechanical damage it's almost impossible.
An insurer, apart from asking a huge amount, would need to know exactely the condition of the mechanicals before the test in order to judge the chances of a failure.

It has happened before that an owner rented out a car for racing with an engine that is about to go........

I can only speak from my own experience of driving a number of other people's extremely exotic, and potent, competition cars over the years for no better reason than a) the opportunity was offered, so I was daft enough to accept it: b) a number of magazine publishers lined up to buy some text based upon that experience: and c) as a lifelong enthusiast the chance to drive such things for a few laps was simply, utterly, irresistible...

There is NO WAY I could ever have covered the cost of repair had I bent or broken any one of those cars - short of taking out another mortgage.

I guess most of the owners fully appreciated that, but the subject never arose. I never recall any discussion over who should pay if a crash or failure occurred. I never actively ducked the issue, but nor did I raise it, in case they might cancel the offer...

The gut feeling - even if any thought about self-protection had occurred to me, which it never did - was that it was a topic and an issue better left alone. This of course is anathema to a lawyer - but I guess I was lucky in my choice of cooperative owners, and lucky that my own mindset recognises that I am no Fangio nor Senna and I have always tried to explore a car's
behaviour within sensible limits. One time I was amazed to learn I'd just lapped quicker than the owner's best at that particular venue, but it just made me sure of what I'd always suspected ... if I was no Fangio, he was no Ottorino Volonterio.

I suspect most of my scribbler colleagues are racing drivers manque - some more than others. A talented few are drivers first and scribblers second. But I am pretty sure the inherent mindset - in ignoring potential downsides which might mean it's wiser not to drive at all - is common across the board.

In this case - although the unfortunate Mark Hales plainly addressed the risk by getting insured - the owner plainly wasn't as
kindly, well-disposed, generous and perhaps as straightforward in his dealings as 'mine' have always been. And perhaps Mark pressed rather harder, for rather more laps, than was really necessary, or indeed prudent, for a few lines of print on mashed-up tree. What happened subsequently cannot, it appears, now be undone - and from my viewpoint (like everybody else here from the touchlines) two chaps I have long regarded with some respect (and one as something of a hero) have let themselves down and - in my view - have both emerged diminished.

There but for the grace of God - a split second error is easily made - and for some purposes what could feel like an embarrassingly wide margin is always best left.

With regret - DCN

PS - By the way, I find John Ruston's offering (post 105) both hilarious and so true...

Edited by Doug Nye, 24 January 2013 - 19:31.

That is exactly how a lot of "Track Tests" happen - just as DN describes. When Willie Green used to do tests for Classic & Sportscar, he would be approached in the pit lane (most of the tests were on general test days) with offers to "drive my car" - half an hour later, another feature in the bag and no legal liability discussion, pure trust. The reputation of the driver/journalist was the only consideration (incidentally Green's were ghost written by Mike McCarthy). Mark Hales has earned that trust - this time it wasn't enough.

I´m sorry, but why would it have been possible. They were only organizations, that Hales was planning to sell his article. Hales set up the test, and owned the rights to the article. He sold the right to print his article, amongst others to Octane. They agreed that the price for the article would be that Octane would pay for the insurance for the test. This insurance was for a driver error. Octane doesn´t own the article, Hales retains the rights in order to sell it to other organizations.

Now why on earth Octane would be responsible, when things went haywire, when they weren´t the organizer of the article, nor did not own the result.

If that's the was it was done then it would indeed be next to impossible. I was under the impression that Octane had (co-)commissioned the article.

One other quick thought - in a way it's good the issue came out in a case that, although with devastating effects for Hales, is not something that is totally irremediable; imagine it had been a 250GTO written off...that would certainly have been disastrous financially for someone.

It's a poor article, I'm afraid. It's an opinion piece pure. Andrew Frankel is surely in the position to be able to do some journalistic investigation and get Piper's side of the story - indeed maybe he or someone else could have popped along to the trial to listen in, they are all public after all. Then maybe he could have come to an informed conclusion.

Except that Frankel represents it as an opinion piece right off the bat -- "I am clearly in no position to view this objectively and you will have no trouble seeing where my sympathies lie." If it's represented as strictly "opinion," nothing wrong with expressing it.

That said, would be good for someone to get Mr. Piper's thoughts.

One other quick thought - in a way it's good the issue came out in a case that, although with devastating effects for Hales, is not something that is totally irremediable; imagine it had been a 250GTO written off...that would certainly have been disastrous financially for someone.

Which of course Hales races regularly & competitively!

Except that Frankel represents it as an opinion piece right off the bat -- "I am clearly in no position to view this objectively and you will have no trouble seeing where my sympathies lie." If it's represented as strictly "opinion," nothing wrong with expressing it.

I know and it seemed out of place because Frankel is in a position to get Piper's comments. Plus it comes the same week as Motor Sport regales us with a Frankel tale of stuffing a Land Rover on a test...

If that's the was it was done then it would indeed be next to impossible. I was under the impression that Octane had (co-)commissioned the article.

A honest enquiry: What if Octane, Auto Italia and Porsche World had co-comissioned the article from Heles´limited company (with Hales´company owing the rights to the article). Why would that create a liability for them to a transaction that was between Hales and Piper?

-J

If that were the case Hales' company ought to have contracted with Piper, so he would personally be immune (many racing drivers have ltd cos that "actually" do the driving for that reason).

If they had co-commissioned though that would lead to a possible argument that Hales was an employee (the definition for vicarious liability is taken quite widely in English law), or an agent for the magazines; the latter argument would be that the magazines effectively told Hales to get Piper's car for an article, so should be responsible for his errors. On the basis that had they never asked, Hales would never have driven the 917.

If that were the case Hales' company ought to have contracted with Piper, so he would personally be immune (many racing drivers have ltd cos that "actually" do the driving for that reason).

If they had co-commissioned though that would lead to a possible argument that Hales was an employee (the definition for vicarious liability is taken quite widely in English law), or an agent for the magazines; the latter argument would be that the magazines effectively told Hales to get Piper's car for an article, so should be responsible for his errors. On the basis that had they never asked, Hales would never have driven the 917.

Thank you for reply. The judgement states that the contract between Piper (or his company) was directly with Hales (not with his limited company), so there went the protection provided by the limited company... I see no reason why the publishing companies would have a contract directly with a writer, who has a limited company precicely for that purpose. This is of course speculation in my part. I would think that if there were a possibility to go after a pubishing house, the claimant would have named them in the suit..

This should´ve never gone to trial. Not with that insurance statement.

-J

Edited by J, 24 January 2013 - 21:09.

Things may be different today, but I was warned that the rev limiter fitted to my March 782-BMW only worked when the engine was under load.
Chris

Miss a shift and you can buzz any engine, limiter or not. Maybe not quite as hard. Though if the car had a 7 grand limit a 7 grand limiter would have helped. Some are better than others though, some cut hard itself doing damage where others are a lot softer,, though easier to over rev.
A simple shift light will help the driver not over rev when driving, but again not when missing a shift.
The fact that the box has subsequently been used without problems means damn all, it seems a simple adjustment on the shift mechanism was all that was required. Just common preperation and maintenance. Something I suspect on a car like that however is hard work, hence Hales getting stuck with a dodgey shift. In hindsight he should have just handed the car back without going further.

Further comment....
http://www.telegraph...ng-survive.html
Roger Lund

Further comment....
http://www.telegraph...ng-survive.html
Roger Lund

In hindsight he should have just handed the car back without going further.

All neatly explained in paragraph five.

The article touches on another point. How often is a car track tested or the subject of anin-depth feature when it is advertised for sale in the same edition of the magazine, or sold shortly afterwards? For example the current Motor Sport includes an advert for one of the Gulf-liveried cars featured in the cover story.

For example the current Motor Sport includes an advert for one of the Gulf-liveried cars featured in the cover story.

No it doesn't - GR8, yes but the article isn't promoting the one for sale

No it doesn't - GR8, yes but the article isn't promoting the one for sale

And even if it was an article on the one for sale would that be problem ?

IMHO most articles in many motoring and other magazines are promoting something or other either directly or indirectly.

Further comment....
http://www.telegraph...ng-survive.html
Roger Lund

The photo is of 917 010, Piper's original 917, not the one concerned in the article - 010 has a removable nosecone, fitted after it was crashed at Fassberg in '70, and no nose panel, and is worth an awful lot more that the other one. (got there before you, mfd! )

Concerning Chris Craft's crash at Norisring in '72, some photos of the wreck, half way down this page (click on 'Fotos')...

http://www.norisring...orframe4_72.htm

Like I said in post #114, Craft (managed to mix him up with Mike Wilds - edited since) said in May 2012 Motor Sport that the crash was his fault so he paid Pipes for the damage. It wouldn't have been cheap - whole new front end. Still wondering if the offer was voluntary or a result of an arrangement or understanding between the two. Chris Craft is a decent bloke, I think, and he might be too discreet to discuss it, but he must have his own perspective on the Piper/Hales case...

(Incidentally, totally off-topic - mfd - in the Lauda/Hunt movie thread, I couldn't remember the name of the Kangol helmet I used to wear, you said it was a Speedmaster and I said I didn't think so... I'd forgotten what you did for a living! So if that's what you say it was, that's what it was! Been meaning to apologize ever since. )

Edited by markpde, 25 January 2013 - 16:01.

(Incidentally, totally off-topic - mfd - in the Lauda/Hunt movie thread, I couldn't remember the name of the Kangol helmet I used to wear, you said it was a Speedmaster and I said I didn't think so... I'd forgotten what you did for a living! So if that's what you say it was, that's what it was! Been meaning to apologize ever since. )

Don't worry, I can be wrong, even on my specialised subject! It could have been a Kangol Falcon...look for a PM

Concerning Chris Craft's crash at Norisring in '72, some photos of the wreck, half way down this page (click on 'Fotos')...

http://www.norisring...orframe4_72.htm

Like I said in post #114, Craft (managed to mix him up with Mike Wilds - edited since) said in May 2012 Motor Sport that the crash was his fault so he paid Pipes for the damage. It wouldn't have been cheap - whole new front end. Still wondering if the offer was voluntary or a result of an arrangement or understanding between the two. Chris Craft is a decent bloke, I think, and he might be too discreet to discuss it, but he must have his own perspective on the Piper/Hales case...

Ouch!
http://www.norisring...orframe4_72.htm

Further comment....
http://www.telegraph...ng-survive.html
Roger Lund

Piper is quoted as saying 'I wouldn't have let him sit in it without accident damage and driver - error insurance'. But surely he did let him sit in it without driver - error insurance - which we are told does not exist...

Piper is quoted as saying 'I wouldn't have let him sit in it without accident damage and driver - error insurance'. But surely he did let him sit in it without driver - error insurance - which we are told does not exist...

That's explained in the judgement:

"There is no dispute that (1) the Claimant checked with the Defendant that his car had
been insured, albeit the policy was not available to be produced, and the Defendant
understood this to cover damage caused by driver error but not mechanical defect;"

One other quick thought - in a way it's good the issue came out in a case that, although with devastating effects for Hales, is not something that is totally irremediable; imagine it had been a 250GTO written off...that would certainly have been disastrous financially for someone.

To be fair and this is something I've spoken to a lot of people about but you pretty much couldn't write off a 250 GTO and the same with other cars of that ilk.
If your car is worth £25 million and you crash it head on into a barrier, well, how much does it cost to rebuild? Certainly not £25m.
Look at the lightweight E-type that appeared 18 months ago, it cost a fortune to pain stakingly restore but is worth a fortune now.
Before anyone asks about originallitly, well, that's another question/arguement entirely...
On the subject of 250 GTOs, anyone remember Damon's missed gear, blow up at the revival 10ish years ago and trying to cover the camera??

True enough, but were it shunted by, say, Nelson Piquet, even he'd have difficulty paying for a £10m repair...

True enough, but were it shunted by, say, Nelson Piquet, even he'd have difficulty paying for a £10m repair...

As a leading restorer once told me, allowing for inflation over the years, anything that man has once made man can make again, and for half-a-million quid we can reproduce any motor car ever made...

DCN

Might be a bit more for a Silver Arrow replica ?

Ralf

Might be a bit more for a Silver Arrow replica ?

Ralf

Not much. Certainly cost of replacement never approaches the notional £20-million-plus value of a GTO, the subject of this thread. GTOs are not complicated, unlike - granted - a pre-war Mercedes-Benz or Auto Union. Like a three-star Michelin dish the ingredients need not be expensive. The value of a GTO is not within its fabric - much more within the human esteem the model has generated. Celebrity culture on four wheels, and in some ways every bit as shallow. The same applies to the D-Type Jaguar...but probably not to the Mercedes-Benz 300SLR.

DCN

Might be a bit more for a Silver Arrow replica ?

Ralf

The Auto-Unions were apparently slightly less than half a million.
Mercedes are more.
Which probably reflects their levels of sophistication, but also that it is some time since the Auto-Unions were made.

As a leading restorer once told me, allowing for inflation over the years, anything that man has once made man can make again, and for half-a-million quid we can reproduce any motor car ever made...

DCN

I take it he didn't work for Ferrari Classiche!

I take it he didn't work for Ferrari Classiche!

The half-a-million quid was cited as COST-price Peter... The Classiche malarkey continues...while I understand that amongst the numerous legal actions which seem in recent years to have proliferated between the factory, its clients, dealers and distributors, the Chinetti v. Ferrari law suit is now scheduled to be heard this coming mid-summer.

DCN

The Auto-Unions were apparently slightly less than half a million.
Mercedes are more.
Which probably reflects their levels of sophistication, but also that it is some time since the Auto-Unions were made.

Very interesting - I have seen DCN´s quote before, but would not have thought that it would be possible for this type of complicated machinery, even if the price would go in the direction of seven figures.


Ralf

Makes perfect sense to me; whatever you do to a GTO will not make it uneconomic to restore. Whilst a cracked wing mirror will probably be the end for an HA Viva. When did you last see one eh ? Or a Maxi ?