Great North Eastern Railway Ltd v Gary Neil Hart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lord Justice Latham,LORD JUSTICE LATHAM |
| Judgment Date | 25 February 2004 |
| Neutral Citation | [2004] EWCA Civ 302 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2004 |
| Docket Number | A2/2003/2519 |
[2004] EWCA Civ 302
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE MORELAND)
Royal Courts of Justice
The Strand
London, WC2A 2LL
Lord Justice Pill
Lord Justice Latham
A2/2003/2519
MR GREG TREVERTON-JONES QC (instructed by Herbert Smith, London EC2A 2HS) appeared on behalf of the Appellant
The Respondent did not attend and was not represented
(Approved by the Court)
Wednesday, 25 February 2004
Lord Justice Latham will give the first judgment.
This is a renewed application for permission to appeal a decision of Morland J whereby he dismissed the claim by the defendant/Part 20 claimant against the Secretary of State for Transport Local Government and the Regions and the Network Rail Infrastructure Limited in proceedings which arose out of the Selby rail disaster on 28 February 2001. It will be remembered that on that day the Part 20 claimant, Mr Hart, was driving a Land Rover towing a trailer along the M62. He fell asleep. His speed was said to be about 50–55 miles an hour. The Land Rover and trailer drifted to its nearside and left the motorway, unhappily in circumstances which resulted in it ending up on the railway line itself. It was because of the presence of the Land Rover on the track that a passenger train approaching at about 125 miles per hour became derailed where, as misfortune would have it, it was hit by a north-bound freight train. Ten people were killed and over 70 people were injured. The insurance claim, we are told, may well ultimately exceed £30 million.
Mr Hart's insurers have accepted and accepted promptly, responsibility for the accident; and these proceedings were brought by them in order to obtain a contribution essentially from the Highway Authority on the basis that there should have been a crash barrier which ran for a significantly longer length prior to the bridge over the railway which would have, or could have, prevented the Land Rover, having left the motorway, from running down the embankment and on to the railway line.
The essential basis of the claim was that the barrier was in fact only 33 metres or so in length—but that was at or about the minimum length provided for in the relevant regulations—and that the design was such that it did not meet the appropriate common law standard of care given that, as the judge accepted, there was a common law duty of care on the Highway Authority to design a crash barrier of appropriate length.
The argument on behalf of Mr Hart was that the accident itself called for an explanation as to why it was that the barrier had not been of sufficient length to avoid the awful consequences that in fact occurred. That was supported by evidence from a Mr Hodgson, as the expert, who said that in his opinion the length of the barrier at the site was significantly less than was appropriate. He ultimately gave evidence to the effect that he would have considered it appropriate for the crash barrier provision to be in the order of at least 100 metres in length.
The Highway Authority called no evidence as to the events surrounding the design of the bridge and the decisions relating to the length of the cash barrier in 1974, which was when the motorway was constructed. It did, however, call evidence as to proper practice, evidence in particular given by a Mr Barton. It also called expert evidence from a Mr Runacres and a Mr Macdonald. The evidence of Mr Runacres was not challenged; and in the report which was relied upon by the Highway Authority, the following passage appears:
"In my opinion and experience there is nothing at all unusual in the design and layout of the pertinent section of the M62 Motorway and there is nothing to distinguish it from many other lengths of motorway and/or many other motorway bridges over railways elsewhere in the UK."
The evidence of Mr Macdonald was to similar effect. Although his evidence was subject to cross-examination, the essential opinion expressed by him was that the fence fully complied with the requirements of the relevant standards and followed good engineering practice given the prevailing site circumstances.
The judge, on the basis of the evidence that he had heard, including the evidence of Mr Barton, concluded that, although he had heard no evidence as to the circumstances in which the crash barrier was designed, he could properly infer that there was an exercise of judgment as to the length of the approach safety fence in 1974. The evidence which he preferred (of Mr Runacres and Mr Macdonald) was to the effect that there was nothing in the nature of the site which should have resulted in a competent engineer at that time considering that a length in excess of that which was in fact provided should have been provided. Accordingly, there was no breach of the Highway Authority's duty of care.
Mr Hart relied...
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