Network Rail Infrastructure Ltd v Conarken Group Ltd and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] EWHC 1852 (TCC) |
| Docket Number | Case Nos: HT-09195 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 21 July 2010 |
[2010] EWHC 1852 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION TECHNOLOGY AND CONSTRUCTION COURT
Before: Mr Justice Akenhead
Case Nos: HT-09195
HT-09395
Alain Choo-Choy QC, David Drake and Alexander Polley (instructed by Hay & Kilner) for the Claimant
Andrew Prynne QC and James Purnell (instructed by Greenwoods) for both Defendants
Hearing dates: 28–30 June and 6 July 2010
Mr Justice Akenhead:
Every year, there are in Great Britain a significant number of road accidents on bridges over and under railways and on railway crossings. In 2008–9, the Court was told that there were 1365 such incidents on bridges affecting railway services and a significant number of other incidents on level crossings. A number of these accidents will involve negligence by one or more drivers involved. Typically, as in the current cases, the accidents will involve physical damage to the bridges, damage to the railway lines, physical remedial work and greater or less disruption to the rail services.
In 1996, the railways and the rail track system were privatised, coming out of nationalised public ownership. The privatisation involved the setting up of Railtrack as the body responsible for the rail track system and the introduction of companies who would operate the trains on that system. The system was effectively divided up into different areas or lines such as the East Coast Main Line and the West Coast Main Line, with GNER and Virgin being the companies which respectively secured the franchises; these companies were known as the Train Operating Companies (“TOCs”). There were various checks and balances whereby the interests of the public and the government were sought to be protected. Thus there was the Office of the Rail Regulator (“ORR”) which, amongst other things, tried to ensure that Railtrack and the TOCs were encouraged or “incentivised” to do their respective jobs properly. There came a time when Railtrack went back into effective government ownership in 2002 and it is now known as Network Rail.
In broad terms, the agreements between Network Rail and the TOCs, which are known as Track Access Agreements (“TAAs”), operate as a form of licence by Network Rail to the TOCs to use the track in return for what are annually often very substantial nine figure sums. However, there is in place in practice pursuant to the TAAs an accounting system whereby, when the track is not available through no fault of a particular TOC, it is compensated by Network Rail through what are called Schedule 8 payments or allowances. Because some parts of the rail track system are used by more than one TOC or some TOCs are affected by the activities of other TOCs on other parts of the system, Network Rail can recover some of the Schedule 8 payments from any TOC which has caused the track in question to be unavailable. There are however some incidents for which other TOCs are not to blame. For instance, the non-availability of the track may be the responsibility of Network Rail. Furthermore, as in the current cases, there may be incidents for which Network Rail can not be said to be at fault, such as damage caused by negligent road users, but for which it assumes responsibility as between it and the TOCs.
There are two claims which are being heard together, both brought by Network Rail against the employers of negligent heavy goods vehicle drivers who caused physical damage to a bridge over a railway line and to electrical equipment at a level crossing. Liability is admitted in general and it is agreed that the respective Defendants are liable to pay damages for the costs of and occasioned by the requisite repairs. What is not agreed is whether in principle Network Rail is entitled to recover damages in relation to the sums which it has paid or allowed to various TOCs in relation to the periods for which the tracks upon which they were operating were unavailable by reason of the physical damage and the subsequent remedial works. Quantum in relation to these sums is agreed.
The case raises extremely interesting issues relating to the scope of the duty of care owed by the negligent drivers, foreseeability, remoteness and policy. This is very much a test case which is of importance not only to Network Rail but also to motor vehicle insurers who will in most cases ultimately have to bear the costs and losses of and occasioned by these types of accident.
The Facts
Network Rail's claim against Farrell Transport Ltd relates to an accident at Bathley Lane, Newark, which took place at about 10:30 am on Saturday 10 May 2003. Mr Farrell was driving a tractor unit across the level crossing carrying Bathley Lane, just off the A1 road across some railway tracks forming part of the East Coast Main Line, route between Doncaster and London Kings Cross; this line comprised two tracks of rail, one carrying traffic north and one south and carried significant levels of passenger and freight traffic. The cab of Mr Farrell's lorry was fitted with a radio aerial and, in going across the level crossing, that aerial made contact with the overhead electrical cables, causing an explosion which led to the detachment of the power cables from the catenary wires on to the railway line. Train services were necessarily suspended whilst remedial work was done; this involved the splicing of a new length of catenary wire, the replacement of “dropper” cables attaching the power cables to the catenary wire and the re-hoisting and height re-setting of the power cables. The whole line was shut for some 4 to 5 hours but work continued on or above one of the tracks, allowing single line working, until 17.20 when the whole line was re-opened. The total admitted cost of the repairs was £4811.27 (which was recently paid to Network Rail by Farrell Transport). There is no suggestion that these works were unreasonable or were carried out too slowly.
The other incident took place at Howden in Yorkshire early in the morning on 29 July 2002 on the Howden Bridge which carries, in a south westerly direction, the A614 main road over rail tracks which are part of the Trans-Pennine, Hull and East Coast lines. A lorry with a refrigerated trailer (“the Fridge Unit”) made its way towards this bridge approaching from the North East. At the same time a low loader (“the Low Loader”), driven by an employee of Conarken Group Ltd (“Conarken”), which carried a tracked piling rig, was approaching from the other direction. The Low Loader mounted the pavement on the bridge, the piling rig's tracks hit the parapet wall which caused it to pivot on the back of the Low Loader anti-clockwise around its centre of gravity and the far side of the piling rig collided with the front of the tractor parts of the Fridge Unit which then jack-knifed and collided with the other parapet wall. Unsurprisingly the vehicles came to a halt, locked together and blocking the bridge completely. The parapet walls were substantially demolished and large quantities of rubble strewn on the railway track below. The Fridge Unit was partly overhanging the edge of the bridge, as was the piling rig on the other side of the bridge. The emergency services were called as were the local Network Rail representatives. After the injured driver of the Fridge Unit was attended to, the emergency services at least in consultation with Network Rail decided that the vehicles could not simply be winched apart at road level; it was resolved that the appropriate solution, not now challenged as unreasonable, was for a substantial crane to be manoeuvred down onto the track to remove what was considered to be the most precarious part of the melange on the bridge, namely the overhanging piling rig. The track remained closed whilst these not insignificant works were carried out over a period of some five days during which the line was closed to rail traffic. The cost of the remedial works to Network Rail was £166,661.70, which is accepted as being reasonable and due to Network Rail from Conarken.
It is also accepted that Network Rail has paid or allowed to the various TOCs affected by these two incidents the sums of £1,017,144.66 and £127,070.62 for the adverse financial impact in relation to the Bathley Lane and Howden Bridge incidents. These sums were calculated by reference to the delays to the various railway services caused by each incident. I saw and read what was in effect unchallenged evidence as to how the delay attributed to the two incidents was assessed and there was no issue with regard to Network Rail's evidence as to how much delay was caused by the incidents themselves and the need to repair the cable and extricate the vehicles and repair the bridge respectively.
The Issues
Although there was until the third day of the trial a mitigation issue relating to the reasonableness of the remedial works done at Howden Bridge, the only outstanding, but by far the most important, issue relates to the recoverability as damages of the adverse financial impact payments made or allowed to the TOCs following the two incidents. This involves a detailed consideration of the scope of the duty of care in tort owed by drivers of vehicles in the circumstances of these two cases, causation, foreseeability and remoteness. Network Rail also in the alternative put their claims against the two Defendants in nuisance and trespass. The outstanding issues have been agreed by the parties as follows:
“6. Are the Claimant's Schedule 8 losses recoverable, as being directly consequent on physical damage or do they represent pure economic loss?
7. Are the Claimant's Schedule 8 losses not reasonably foreseeable, or alternatively too...
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