[2025] EWHC 1844 (KB)

Bernhard Klammer advised the Court instructed by the Claimant. In his report dated December 2024 he concluded that:

In the joint report with Mr Gale, Mr Klammer asserted that when AP looked back, the Claimant was 180 metres behind him (C982), on the Claimant’s case. He had visited the track with Craig Arnold in December 2022 but he had not taken a photograph of the view looking back down straight 1 from turn 1. Mr Wright had taken one and that is referenced above in my definitions section. I find that it was not possible to see 180 metres back along straight 1.

In his live evidence in chief Mr Klammer disclosed that he had asked which trees had been removed and the UTAC staff member told him those on the left of straight 1 before turn 1 (this was not in his report). He abandoned his criticism of the failure to advise the Claimant to ride on the right-hand side of the track. He should not have made that allegation at all in my judgment. This was a one way private track. He asserted that in his time as an expert he had done 3 left turn accidental throttle grip cases (but the Claimant’s pleaded case did not rest on that factual matrix). In cross examination, it was put to him that all his conclusions were based on the Claimant’s version of events. He stated that he had to make some assumptions, he was trying to figure out what had happened. He was asked if, in his opinion, it was likely that the Claimant accidentally gripped the throttle and agreed. He stated that this was due to lack of guiding and hence the Claimant was going too fast. He stated that he understood that the guide was out of sight, the Claimant could not really see the track and realised it was a left turn and pushed the right handlebar operating the throttle. It was put to him that he was reconstructing the accident and he replied he was trying to figure out what happened. He denied being in business competition with LA. He accepted that at para. 4.6 of his report he made an error stating that the guides did not state in their witness statements how long the briefing was. He criticised the written SSOB for failing to include a requirement, as set out in the Powerpoint slide, about the LHT risk. However, if the guides did advise on correct operation of the handlebars for LHTs then he did not maintain his criticism. He withdrew his criticism of the length of the briefing, having been shown Mr Satta’s witness statement, if the Court accepted that. He was not aware that UTAC were asked to make a track suitable for beginners. He accepted that he had not seen the whole track. He maintained his opinion that the double left was a “dangerous part” of the track. He stated that a beginner could go on the track in ECO and probably nothing would happen. He admitted that a description of the track would not need a description of every turn but he considered that it should have included information about a double left and that it was potentially dangerous, so the guide should have said “go at my speed”. He accepted that he was incorrect to criticise AP for failing to advise driving on the right-hand side and indeed accepted that such advice would make the ride more dangerous on the narrow one-way track. He would not use a double left hand turn on a beginners’ track. He criticised LA for failing to provide a practice area for braking and turning on flat ground before setting off. He asserted that there being 12 turns in the first 600-700m would make it a slalom and it was put to him that he was being silly. The report from Mr Leinonen was put to him (it was an agreed report) and he rejected the contents on separation distances. He asserted that he had never done a safety briefing in 5 minutes. His company had only been audited by TUKES once. They had suffered no accidents. He was shown Finnish accident figures but his evidence on those became confusing and slightly frivolous. He was asked about the Xtrim and stated that he saw a black key on a photo after the accident. He described, having read the manual, how the Learning Key worked. He was shown his joint report with Mr Leinonen. He accepted that using the Xtrim 900 in ECO mode was satisfactory for Finnish standards. When pressed on whether changing to Standard mode with a customer’s consent and a warning to be careful due to increased acceleration and some slower practice on the track soon thereafter, would be sufficient, he answered that it would probably be sufficient. On leaning in, he was shown what the other experts said and then descended into an accident reconstruction of the crash from the post event photos involving his expert opinion on whether the right ski was digging in more or less than the left ski. He conceded that his accusation that the group were yo-yoing in ride 1 was wrong and withdrew it. He maintained his criticism of AP for failing to look back after turn 1. He clarified that the reference to 180m in the joint report was the distance travelled by the guide between looking back and stopping. When it was put to Mr Klammer that the Claimant’s case was that he thought it was all one long left turn and it would not make sense for him to accelerate on a turn, he admitted that it was unknown whether the Claimant intentionally pushed the accelerator or did so accidentally. It was put to him an accidental error was consistent with the hospital records. He agreed. He also agreed that it was consistent with his own opinion at C613 in which he wrote:

“In my opinion, when trying to steer the snowmobile to the left, he likely pushed with his right arm, instead of pulling with his left arm and slowing down, and so involuntarily pushed the throttle harder. This resulted in very hard acceleration of the snowmobile (as it was in Sport Mode or Standard Mode) and the impact with the tree.”

Despite this being in the Claimant’s own expert report it was never pleaded. In re-examination he stated that if the throttle was pushed accidentally when the Claimant was going at a safe speed then what the guide was doing was causally irrelevant. However, if he was already going fast he said one has to look at the relevant factors. He noticed that the tracks of the SM were on the right hand side (I do not understand how he could conclude that after all the other SMs which attended after the crash had caused tracks: Mr Satta, the Medic, then AP and others who arrived to take the SM away). He returned to his theory about the right ski being in deep snow at the outside of turn 2 and that sinking into snow could have caused the accidental acceleration. Alternatively, he postulated that the Claimant panicked or tried to turn left and pushed with his right hand. He did not know which. He pointed to the arrow on the agreed plan on turn 2, at the start of the straight line to the tree and suggested that the acceleration occurred there. He came up with new evidence at the end of cross examination stating that he had tested the Xtrim 600 and 900 and that latter was very strong and he had needed to sit down. I do not understand why he did not put that in his report if he actually did do so.

After Mr Klammer’s evidence Mr Chapman for the Defendant highlighted the unpleaded case being advanced by Mr Klammer about accidental acceleration being caused by bad guiding. He submitted that no such case had been pleaded and no amendment application had been made. This warning to the Claimant was left over for legal submissions.

Mr Stanley Gale gave evidence to the Court instructed by the Defendant to advise on breach of duty as an expert on SM operation. He lives in Colorada and runs the Rocky Mountain Ski and Snowsports Consultancy. Under the heading “Background” on page two of his report he wrote this:

“The Claimant was individually operating his snowmobile and following the guide in front of him, who was in full view. The Claimant admittedly lost control, and he drove his snowmobile off the prepared track and into a tree, suffering injury as a result.” (I have added the italics).

That was not the background. One of the key issues in the case was whether the guide was in full view. Apparently, Mr Gale had not quite grasped that was in issue. Under the heading “Qualification and Experience” he wrote:

“It is my opinion that Dr Cannestra was provided with appropriate training and an equally appropriate safety briefing prior to the snowmobile safari. Moreover, the manner in which the tour was conducted by trained guides was also wholly appropriate. The defendant, McLaren Automotive Events Limited, and its subcontractors, employees and staff members met, indeed, exceeded their responsibilities to conduct the tour in a reasonably safe manner before, during, and after the incident in which Dr Cannestra sustained injury.”

These conclusions were not qualifications. Thereafter in the whole report he assumed the version of the disputed facts provided by the guides was the only version which the Court should accept and ignored the version given by the Claimant. Mr Gale visited the site and stated that he had read all of the documents provided to him. He drove a Lynx Xtrim 900 on the “same course” which was reopened and reconstructed for him. AP led him around it. Correctly, he stated at para. 4.1 that findings of fact were for the Court and not for him. He stated that he would summarise the factual common ground. He then provided a summary including the following statements:

Mr Gale summarised the pleaded allegations in para. 5 and carried out his expert analysis of the briefing in para. 7.

Mr Gale advised on the adequacy of the guiding at para. 8.

In cross examination the gross fault-lines in Mr Gale’s approach in his report were highlighted by Mr Block KC. He was taken through the main opinions in Mr Leinonen’s report and agreed with them. When asked why, at the start of his report, he had stated that AP was within sight of the Claimant throughout, he explained that when he followed AP round the track he had been in full view all of the time. He then said he had “tested the evidence” of the Claimant. However, he agreed that he had not generally recited the Claimant’s version of the facts in his report – that the guide went so far ahead that he was out of sight – and he had not recorded that this was a key issue in dispute. He accepted that in his reconstruction he had ridden the track in daylight not at sundown and that it was not snowing. He could not explain why he had put his conclusion on the quality of guiding under the heading “qualifications”. He was asked what his advice would be to the Court if the tether was not attached to the Claimant and he refused to accept that it was not attached. When pressed, he stated that if the Court so found he would not change his opinion. He explained this by asserting that, in his opinion, tether cord use is not always explained by guides. He also stated that he would not change his opinion even if AP was driving so far ahead that the Claimant could not see him. Mr Gale asserted that the Claimant should have stopped and put his hand up. He refused to accept Mr Satta’s evidence that the Lynx Xtrim 900 suffered from understeer. He explained that his extensive internet research into which mode riders use only produced the Chat Forum he recited in his report. He accepted that in his report he had assumed that the facts asserted by the guides were true. He stated that in North America that is what he did when giving expert evidence. He did not see it as a failing to ignore the Claimant’s version of the facts. It was put to him that he was acting as an advocate for the Defendant in seeking to persuade the Court to accept the guides’ version of events. He denied that. He asserted that his review of the evidence led him to advise the court on which version of events was more likely. For instance, when challenged on the tether cord evidence he asserted that, because the Claimant did not raise it straight after the accident, his evidence was unlikely to be correct. He asserted that, if no tether had been worn that would have been the Claimant’s fault not the guides’ fault. When questioned on visibility during sunset when the accident happened, he asserted that the Claimant could see the guide and also the tracks in the snow, because these were “the first tracks of the afternoon”. Counsel put to him that a group had driven the track right before the Claimant and KM went out, so he was wrong. He then retreated into asserting that it had been groomed during the day. At this stage I gained the impression that Mr Gale was making his evidence up as he went along. He asserted that Mr Arnold’s reconstruction was unreliable, but ignored the fact that Mr Arnold and Mr Wright had agreed a plan during the trial which was based on Mr Arnold’s plan. When questioned on his assertions that the briefing was within a reasonable degree of expert certainty likely to have been adequate, he explained that he had considered all of the evidence and tested it and weighed it. When counsel asserted that it was the Judge’s job to weigh the evidence he agreed and then denied weighing the evidence himself. Eventually when faced, fact by fact, by Claimant’s counsel, with the pleaded and asserted breaches he accepted that, if proven, the guide would have fallen below a reasonable standard of guiding. On the accident itself, he asserted that there was no need for AP to look back on straight 2 because he had looked back before turn 1. Mr Gale could not explain why he written that there was “no evidence” to support understeer for the Lynx Xtrim 900, in the light of Mr Satta’s witness statement asserting just that it understeered. He could not explain why he had put the circle showing where he “estimated” AP’s SM had stopped after the accident, on a photo which actually showed the very snowmobile in position after the accident.

There was a joint expert report from Mr Klammer and Mr Gale but very little was agreed. They did not even talk to each other before producing it.