Mega Trucking Company Ltd v Highways England Company Ltd
| Jurisdiction | England & Wales |
| Judge | Graham Wood |
| Judgment Date | 08 August 2022 |
| Neutral Citation | [2022] EWHC 2099 (QB) |
| Docket Number | Case No: QB-2020-001319 |
| Court | Queen's Bench Division |
| Year | 2022 |
[2022] EWHC 2099 (QB)
HIS HONOUR JUDGE Graham Wood QC
Sitting as a Judge of the High Court
Case No: QB-2020-001319
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Prynne QC and Emma Jane Hobbs (instructed by DWF solicitors) for the Claimant
Adam Weitzman QC (instructed by DAC Beachcroft solicitors) for the Defendants
Hearing dates: 12 th–18 th July
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Graham Wood QC
Introduction
On 1 st November 2013, a Scania articulated tractor and unit driven by Jan Mirek, a Polish national, was travelling on the M25 motorway in a westerly direction in the left hand lane between junctions 24 and 25, using the hard shoulder whilst roadworks were being carried out to create a smart motorway, when the nearside wheels strayed from the carriageway (known as the “pavement”) onto the verge area and over a filter drain. In an attempt to return to the carriageway by steering and braking, Mr Mirek lost control of the vehicle which tipped onto its nearside and slewed across all three lanes crashing into the central barrier. The central barrier gave way and as it became detached three motorway construction workers were trapped, including Mr. Mihai Maier, who sustained very serious crush injuries to his lower legs. He was airlifted to hospital, but subsequently required the amputation of both legs, sustaining life changing injuries. His claim against the driver's employers, who were vicariously responsible for the driving of Mr Mirek, was settled in the sum of approximately £8 million at trial in 2018. No other party had been sued by the injured workman.
However, that was not the end of litigation relating to this tragic accident. Mr Mirek's employers, Mega Trucking Ltd, who were the Defendants in that claim, subsequently sought a contribution from the Highways Agency (later Highways England Company Ltd and now National Highways 1) on the basis that the state of the highway verge and the layout of the motorway during the temporary traffic management of the construction works had been in disrepair and not properly maintained in breach of section 41 of the Highways Act 1980. This claim had not been intimated during the course of the earlier litigation.
In the proceedings which were commenced (the present claim), the Highways Agency sought to join Connect Plus (M25), a consortium of companies contractually responsible for the roadworks and the conversion to a smart motorway pursuant to an indemnity. The principal contractor within that consortium was Balfour Beatty Skansa (BBS) and for reasons which do not require elaboration within this judgment, the defence to the contribution claim has been handled by BBS and its insurers. Accordingly reference is made to the Defendant and BBS interchangeably. 2
The trial was heard over five days in July, and I reserved judgment to enable a detailed consideration of the evidence and the substantial documentation which had been referred to.
Outline of the evidence and issues in this trial
The Claimant did not rely on any oral evidence. Sadly the driver of the truck, Mr Mirek, recently passed away, and his hearsay evidence was adduced in statement form. Reference was also made to the contemporaneous police interview following the collision. The Defendant called several witnesses who were involved in the motorway works at the relevant time, the project director, project manager, the traffic management manager and the traffic safety officer.
There was also reliance by both parties upon expert evidence from highways consultants with experience in traffic management and highways construction compliance, and the Defendant called an expert physicist in accident reconstruction and tachograph analysis.
It was agreed that the issues related to the condition of the filter drain running alongside the hard shoulder, also known as the French drain, in the context of the single pleaded cause of action, namely a breach of section 41. Although there is an absence of complete agreement as to how the issues should be approached, for the most part the evidence and the submissions of counsel have addressed the following discrete issues namely: (a) what was the cause of this accident, and the loss of control of the articulated vehicle; (b) insofar as the filter drain or the verge was implicated causally, what was the state of the filter drain at the time of loss of control; (c) did that condition amount to a want of repair, danger or trap so as to give rise to a potential breach of duty under section 41; (d) if so is there a defence available to the highway authority (or here the party standing in the shoes of the highway authority, BBS) under section 58; (e) if not in what proportion should blame be attributed between the Claimant and the Defendant for the accident which befell Mr Maier, having regard to respective culpability and causation?
It seems to me that this stepped approach is the sensible way in which to consider the evidence and the arguments in a case which at times has had a tendency to descend into a technical and overly complex analysis, and to examine the duties of highway authorities and those responsible for motorway construction beyond the somewhat narrow statutory responsibility under the Highways Act.
In an attempt to simplify the technical detail, which has abounded with acronyms and abbreviations, and to make this judgment more understandable in the context of the witness evidence and documentation, I set out below a brief glossary.
Glossary of abbreviations used
Background and undisputed evidence
| TM | Traffic management |
| TTM | Temporary Traffic management |
| TMP | Traffic Management Plan |
| ALR | All Lane Running |
| DBFO | Design Build Finance & Operate (Contract) |
| DMRB | Design Manual for Roads and Bridges |
| CSI | Casualty Severity Indicator |
| SBBJV | Skanska Balfour Beatty Joint Venture |
| HCD | Highway Construction Detail |
| TSCO | Traffic Safety Control Officer |
| LUS | Later Upgrade Section |
| DSR | Design Strategy record |
| IAN | Interim advice note |
| TSRGD | Traffic Signs Regulations and General Directions |
| TSM | Traffic Signs manual (short form of above) |
| AI | Aggregate Industries |
| CBR | California (Load) Bearing Ratio |
Between 2009 and 2015 BBS became involved in the main construction and design contract at the invitation of the Defendant for the widening of the M25 motorway between junctions 16 and 27, and its conversion into a smart motorway with ALR, that is four lanes in each direction without a hard shoulder, but with variable speed control. It was a substantial project for what is agreed to be the busiest motorway in the United Kingdom, and possibly in Europe, taking up to 60,000 vehicles per day, one third of which were heavy goods vehicles. This meant that the work had to be done in phases, with the use extensively of TTM before the permanent works were completed. The TMP was developed in conjunction with a subcontractor, AI, who provided design, installation and maintenance input to many aspects of the TTM. The design schemes which were drawn up were the subject of certification and eventual approval at a number of layers, including the primary employer, the Highways Agency.
Invariably the operatives of BBS would undertake the preparation of construction work to the nearside of the motorway which included converting the hard shoulder into an operating lane and creating verges with proper drainage systems, as well as the roadside furniture, barriers, gantries and so on, before moving to the works to the central reservation including construction of barriers. 3
Protection of the workforce was a priority, and it was undertaken with the imposition of a mandatory 50 mile an hour speed limit, and Varioguard barriers for those working on the central reservation. It is common ground that in order to keep the motorway traffic flowing with three lanes in either direction, space was tight, in the sense of that each lane was narrower in the TTM than it would be with the permanent works completed. This required the nearside lane, occupied mainly by HGVs, to be 3.25m 4, the middle lane 3m, and the outside overtaking lane 2.75m.
In relation to the conversion of the hard shoulder into a temporary running lane, work was undertaken to the verges at the side of the existing hard shoulder which was substantially concrete. This included some replacing but largely upgrading the existing filter drains which were designed to allow water to drain from the motorway surface and to avoid pooling which itself could create a hazard. Many of these drains were formally topped with stones, which whilst acceptable for a hard shoulder where vehicles were simply stopping or slowing down for emergency purposes, created a further potential hazard with what is known as stone scatter, if vehicles were passing by at speed or overrunning, that is straying from the carriageway into the verge area.
Accordingly the filter drains which were constructed to a specific design were upgraded with the overlay of asphalt planings intended to provide a firmer surface with a degree of hardening and at the same time avoiding stone scatter. This design was not just for the temporary scheme, but to be permanently in place when the motorway was completed, by which the hard shoulder would continue to be used, and potentially at the national speed limit of 70 mph, as a running lane.
There was a specification which was followed for the construction of the...
To continue reading
Request your trial