Dunnett v Railtrack Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE ROBERT WALKER,LORD JUSTICE SEDLEY |
| Judgment Date | 22 February 2002 |
| Neutral Citation | [2002] EWCA Civ 303,[2002] EWCA Civ 302 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. B3/2001/9012 |
| Date | 22 February 2002 |
[2002] EWCA Civ 302
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(His Honour Judge Graham Jones)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Brooke
Lord Justice Robert Walker
Lord Justice Sedley
No. B3/2001/9012
MR LEVENE (Instructed by the Bar Pro Bono Unit) appeared on behalf of the Appellant.
MR T LORD (Instructed by Beachcroft Wansborough) appeared on behalf of the Respondent.
Friday, 22nd February 2002
This is an appeal by the claimant, Susan Jane Dunnett, from the judgment of His Honour Judge Graham Jones in the Cardiff County Court on 1st December 1999, whereby he dismissed her claim against the defendant, Railtrack Plc, for damages arising out of the death of three of her horses on 17th June 1996 on the Swansea to London Railway Line near Bridgend.
The claimant lives at a farm, Penyfai, which she and her partner rent along with a field adjoining the railway line. They keep horses for livery. There is an accommodation crossing across the railway line, although the land on the other side of the line is in separate occupation, and a gate from the field leads to the crossing. There used to be a wooden five-bar gate there which fell into disrepair. This gate was replaced by Railtrack contractors, who installed a new iron gate shortly before the accident. The old gate was sprung in a way that it would close without the need for it to be properly shut. However, it was so stiff that it would barely open, and this caused a lot of problems. The new iron gate swung open much more easily, but it would not shut unless it was specifically closed.
Railtrack workmen used to have access to the line along a track through the claimant's field. The claimant was keen that arrangements might be made whereby she was given a key to the gate, which would be available to Railtrack's men who passed her cottage on the way to the line. She thought that they would not have to suffer significant delay while calling for the key and that, if the gate was kept locked, children would desist from using the crossing, as had been their practice.
The judge found that the only time when she or anyone acting on her behalf made a request of this kind to any representative of Railtrack was when the new gate was being installed. Two contractors' men brought the new gate to the site in a yellow van with drop-down sides, which they parked by the gate to the claimant's yard. When they got out of the van they chatted to the claimant about her horses, and one of the men told her they were working on the gate. She commented that it was often left open, and she inquired if there was any chance of it being padlocked. The man replied that there was a legal requirement for them to have access to the line, and it would therefore be illegal to padlock the gate. It would not be feasible for there to be a key kept available for railway workers as well as for the claimant, because it might happen that the claimant would be out and the men could not gain access to the line. This would be illegal. After saying what an improvement the new gate would represent, he went off to do his work.
On 17th June 1996, soon after the new gate was installed, the claimant put four horses out to graze in the field before 9.30 a.m.. Before she left she checked that the new gate was properly shut. When she returned at about 11.15 a.m. she found the gate wide open and three of the horses no longer in the field. They had strayed on to the railway line, where they had been struck and killed by an express train some way down the line. The claimant claimed not only £9,000, being the agreed value of the horses, but also damages for post-traumatic stress disorder (PTSD). The Judge found that she had seen the mangled remains of at least two of her horses on the railway line in the immediate aftermath of the accident. After this incident the iron gate was replaced by a fence.
It is necessary at this stage to say something about the way the claimant's case was developed. In the original particulars of claim dated 12th December 1997 seven allegations of negligence were made. The first two asserted that the defendants' servants or agents were negligent in that they had failed to take adequate steps to ensure that the new gate would shut automatically, and that they replaced the old gate, which had an automatic shutting device, with a new gate without such a device.
Shortly before the trial, Judge Graham Jones conducted a pre-trial review at which he directed the parties to file skeleton arguments. As a result, the claimant's former solicitors served on the court and on the defendants' solicitors a six-page formal statement of the claimant's case. Under the heading "LIABILITY" appear two paragraphs:
"(a)The Claimant alleges that the Defendants, their Servants or Agents were negligent. The Claimant now relies upon paragraph 10(c) of the Particulars of Claim, supplemented by paragraphs 10(f) and (g) insofar as those paragraphs supplement 10(c). It is the Claimant's case that by indicating to the Claimant that it was illegal to allow gates to be kept locked, and/or failing to action the request that those gates be kept locked, the Defendant's Servants or Agents failed to comply with their duty of care to ensure the safety of the occupiers of the land adjoining the railway. Given the knowledge that the Claimant kept horses in the field adjoining the railway, and that the crossing was used illegally by inter-alia, children, the failure to heed the Claimant's request was made worse. If the Servants or Agents of the Defendants' required the gate to remain available for use, a system should have been devised which would have enabled it to be used safely, such system allowing the gate to be kept locked except when in lawful use.
(b)Given the factors mentioned above, it was reasonably foreseeable that if the gate was not kept locked, it would be left open by those using it, and horses would then stray onto the railway line putting them at great risk. It is the Claimant's contention that the failure to lock the gate was the primary cause of the horses being killed, thereby giving rise to a claim in damages against the Defendant Company."
It follows that the defendant had notice before the trial started that the claimant no longer relied on the first two of her particulars of negligence in the particulars of claim to which I have already referred. Instead, her case was founded only on particular 10(c) of the particulars of negligence, supported to a certain extent in an ancillary way by particulars (f) and (g). Particular 10(c) reads:
"(c)Failed to heed the Plaintiff's request that the said gate be kept locked to prevent it inadvertently being left open.
(f) and (g) read:
"(f)Failed to pay any or any adequate heed to the presence of the Plaintiff's horses in the said field;
(g)Failed to devise a system of fencing and/or gates which would have enabled the path to be used without placing at risk the horses in the field."
One other feature of the claimant's claim should be mentioned at this stage. In paragraph 5 of her original particulars of claim it was said that on occasions which she cannot now particularise she had asked the defendants, their servants or agents to lock the said gate, leaving a key at the farmhouse, in order to limit the use by trespassers on the path and to ensure that the gate was properly secured at all times. The defendant had refused to allow the said gate to be so locked. When she was asked formally to provide particulars of this allegation, the answer came back:
"There was only one occasion on which the request was made."
Then follows a reference to the occasion on which the new gate was replaced.
Mr Levene, who has appeared for the claimant on this appeal, drew our attention to an internal Railtrack letter to the Railtrack solicitor from an Infrastructure Liability Manager at Swindon, dated December 1994, which related to an agreement being made with the owner of the land on each side of the railway line. In that letter appears the statement that the owner, who is described as "the user", had requested that the private footpath crossing at this point was closed. He was having serious problems with people trespassing on his property and then crossing the line at this point. But no point was made in the claimant's pleaded case of complaints which she had made, or complaints which anybody had made, about trespass over her land or the occasions when the gate was being left unlocked except for the single occasion when she had the conversation with the workmen.
At the trial the claimant and her partner gave both written evidence, through their witness statements, and oral evidence. The defendants, who now knew that the claimant's claim had been limited in the way that I have described, called no evidence. At the end of the trial, after hearing the arguments put forward by her counsel (who had not had the carriage of the case throughout the time when the particulars of claim were first issued), the judge noted in his judgment that counsel had departed some way from his client's pleaded case; and at the end the judge said that her case was now formulated to the effect that when the defendants' servant or agent indicated to her that it would be illegal to allow the gate to be kept locked, the defendants were thereby vicariously liable for a breach of their duty of care to take reasonable steps to ensure the safety of the chattels or other goods of those who occupied the land adjoining the railway. In essence...
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