Great North Eastern Railway Ltd v Gary Neil Hart
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morland |
| Judgment Date | 30 October 2003 |
| Neutral Citation | [2003] EWHC 2450 (QB) |
| Court | Queen's Bench Division |
| Date | 30 October 2003 |
| Docket Number | Case No: HQ02X00987 |
[2003] EWHC 2450 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE MORLAND
Case No: HQ02X00987
Lord Grabiner QC and Mr G. Treverton-Jones Q.C. (instructed by Herbert Smith) for the Part 20 Claimant
Mr I. Burnett QC and Mr W. Hoskins and Mr A. Edwards (instructed by The Treasury Solicitor) for the First Part 20 Defendant
Hearing dates: 6 th– 15 th October 2003.
(and Consolidated Proceedings Commenced By Network Rail Infrastructure Limited Action Hq02x00890)
This litigation arises out of the rail disaster which occurred near Selby on the 28 th February 2001 and in which ten people were killed and over seventy people injured.
Proceedings were brought by Great North Eastern Railway Ltd and by what was then Railtrack Plc against Hart, the driver of the vehicle which precipitated the disaster. The claims were for damage to rolling stock and the rail infrastructure respectively and for consequential losses. Claims against Hart have also been made in respect of the fatalities and the personal injuries and by a commercial loser, Freightliner Ltd.
Hart's insurers immediately admitted liability and have so far paid out upwards of £22 million to the various claimants.
I have to determine a claim for contribution brought under Section 1(1) of the Civil Liability (Contribution) Act 1978 by the insurers by way of subrogation in Hart's name against the Secretary of State (now entitled) for Transport. In this judgment I shall call the Part 20 Claimant "Hart" and the Part 20 Defendant "the department".
The Rail Disaster
In the early hours of the 28 th February 2001 Hart was driving a Land Rover towing a trailer carrying a Renault Savannah westbound along the M62 between junctions 35 and 34. He fell asleep. His speed was about 50 to 55 miles an hour. He was travelling in the nearside lane. The Land Rover and trailer drifted over to its nearside as it naturally would because of the road's camber. Ahead was Little Heck Bridge which takes the M62 over the main North – South railway line which was perpendicular to the M62. The time was about 6.10. a.m.
The Land Rover and trailer left the nearside lane at an angle of about 5 to 6 degrees and at that angle crossed the rumble strip, the hard shoulder and went along and down an embankment. At the bottom the Land Rover and trailer demolished a stretch of wooden fencing marking the boundary of a field, went through the railway fence, down the cutting and came to rest partly on the North-South track
Hart was not seriously injured; he alighted from the Land Rover and telephoned on his mobile phone to the emergency services. Within seconds the GNER passenger train from Newcastle bound for London travelling at a speed approaching 125 mph collided with the Land Rover. It became derailed and was hit by a northbound freight train.
Nature of the Evidence.
The way in which the evidence was produced in this case was unusual. Over 45 ring binders containing witness statements, expert reports, voluminous documents, and authorities were presented to me. I am grateful to Lord Grabiner and Mr Burnett for directing me towards essentials.
Only six witnesses gave evidence orally. Cross-examination was limited with the result that only less than three days was spent hearing oral evidence. Final submissions were completed in one day but I was left with the task of weighing up the documentary material and the written statements of witnesses relied upon by the Department. These witnesses were not called because Lord Grabiner had informed Mr Burnett that he did not propose to cross-examine them. Thus their statements remained unchallenged. It therefore remains to me to give such weight to them as I consider proper.
I also saw some video footage and of particular value some police photographs (exhibit 53 in Hart's trial) which shew clearly the track marks of the Land Rover and trailer from the point where the front nearside wheel of the Land Rover begins to cross the grass embankment (photo 7), where the wheels on the offside of the Land Rover and trailer miss the end of the safety fence (photo 8), along the side of and down the slope (photo 9) and the demolition of the wooden fence and place of entry into the railway cutting (photo 10 and 1).
I also had a view of the disaster scene. Next day in court I said:—"The slope of the embankment was very much steeper than I had imagined and I was extremely surprised, almost could not believe, that the vehicles had not toppled over".
My layman's conclusion was confirmed in the report of the road accident reconstruction expert, Mr Sorton, dated the 11 th April 2001 who said:—
"The path of the Land Rover on leaving the motorway can be very accurately determined from a series of tyre marks which ran from a shallow angle along the embankment backing the southern side of the road.
The first point at which the vehicle struck the kerb at the edge of the hard shoulder was around 50 metres east of the beginning of the safety barrier. Logically, the first tyre to strike the kerb would have been the front nearside tyre of the land Rover.
The angle at which the Land Rover/trailer combination moved along the embankment did not vary to a great extent. This is surprising given the steepness of the slope. What is even more remarkable is the fact that the Land Rover did not roll over. This vehicle has a very high centre of gravity and is far less stable than a conventional motorcar. It may well be that the presence of the trailer played some part in preventing roll over taking place, particularly if the trailer swung round and was literally crabbing along the embankment.
At the outset the tyre marks were fairly closely grouped together consistent with the vehicle/trailer running parallel to each other and without any significant rotation. As the combination moved down the embankment the distance separating the marks increased. It is probable that the combination began to jack-knife at that point.
The position of the Land Rover at the point of impact with the GNER train can be precisely determined.
The evidence indicates that the tailgate of the Savannah estate opened as the combination came to rest. That tailgate was struck a glancing blow by the passenger train and the whole assembly was then distorted and displaced in a southerly direction.
A large proportion of the Land Rover came to rest clear of the actual railway line. The front of the Land Rover overhung the eastern rail line."
Lord Grabiner in the course of his submissions seemed to suggest that there were a number of witnesses whom the department should have called, people involved in the design and building of the bridge in 1974, in the reconstruction of the approach safety fence in 1993 and the repair to it in 1995. These included a Mr Wilson and Mr Hawes who were in some way involved in 1974 and a Mr Moulds, an engineer employed by Humberside County Council, who were agents for the Department in 1993. However it is for Hart to establish his entitlement to contribution. I must decide whether it is established on the evidence that is before me together with the documentary material drawing such inferences as are proper.
The Safety Fence.
At the time of the crash and still today the total length of "safety barrier" in advance of the railway line "proper" is 62.7 metres (i.e. 9.2 metres of ramped down safety fence plus 33.5 metres of full height safety fence plus 20 metres of bridge parapet). 53.5 metres of this length of barrier is of full height and exhibits "normal containment characteristics". (See the letter dated 1 st October 2003 from Mr Runacres, Head of Advisory Services at the Transport Research Laboratory).
Mr Runacres's written evidence is unchallenged. He with colleagues including Mr Macdonald who gave oral evidence before me visited the scene of the crash on the 28 th February 2001.
Mr Runacres in a report dated the 5 th June 2003 said:—
"The Land Rover's nearside front wheel appears to have struck the kerb on the nearside edge of the westbound carriageway at a point approximately 50 metres in advance of the terminal end of a safety fence that is connected to the parapet of Little Heck Bridge.
The vehicle then appears to have proceeded at a shallow angle to the kerb before the offside wheels struck the kerb approximately 24 metres in advance of the safety fence terminal.
From each point of contact, rolling wheel tracks through the grass on the verge identify the subsequent course of travel. These marks were very clear at the time of my site inspection and are readily observable in the data obtained by the three dimensional scanning laser system, as well as in photographs taken of the scene around that time.
The wheel tracks were remarkably straight as they crossed the verge at a shallow angle (measured as being between 5 and 6 degrees to the normal direction of travel along the motorway).
Due to its shallow angle of travel, the vehicle combination passed by the terminal end of the safety fence relatively close to it. Had the safety fence been approximately 7 metres longer or more, then the vehicle combination would have struck it.
After passing by the end of the safety fence and travelling behind it, the vehicle combination descended the highway embankment, which is approximately 3.5 metres high at this point.
The vehicle combination broke through the wooden post and rail boundary fence between the highway and adjacent private land at the foot of the motorway embankment approximately 17 metres...
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