Thames Trains Ltd v Health & Safety Executive

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Morland
Judgment Date23 July 2002
Neutral Citation[2002] EWHC 1415 (QB)
Docket NumberCase No: HQ01X04197
Date23 July 2002

[2002] EWHC 1415 (QB)




The Honourable Mr Justice Morland

Case No: HQ01X04197

Thames Trains Ltd
The Health and Safety Executive

Lord Brennan Q.C. Leading Mr Keith Morton (instructed by Fisher Scoggins, Solicitors) for the Claimant

Mr Hugh Carlisle Q.C. Leading Mr David Barr (instructed by The Treasury Solicitor) for the Defendant.

Hearing dates: 25/26th June 2002.


Mr Justice Morland

Mr Justice Morland

The Factual Background


At 8.11 a.m. on the 5th October 1999 a disastrous accident occurred at Ladbroke Grove Junction some two miles outside Paddington Station. A westbound Thames Train passed through signal SN109 at danger and collided virtually head on with a eastbound First Great Western high speed train travelling at high speed. 31 people were killed and 259 were injured, some of them critically.


Lord Cullen conducted a public inquiry. I was not informed of the evidence given at the inquiry nor of his conclusions. Furthermore I am not aware of them.


However, it seems probable that two materially significant causes contributed to the catastrophic accident. There was a failure of look-out on the part of the driver of the Thames train and there was a failure on the part of Railtrack which controlled the infrastructure and was primarily responsible for the signalling system at the junction which was confusing and in particular SN109 to a degree obscure.


In order to reduce the need for litigation by the victims or on their behalf an agreement has been reached that Thames Trains will settle or try to settle the personal injury and fatal claims. I was not given details of this agreement but I assume that Thames Trains and Railtrack, or in reality their insurers, were parties to it.

The Claim.


The Amended Particulars of Claim are in Bundle I Tab 4. In essence Thames Trains seek contribution from The Health and Safety Executive in respect of the claims by or on behalf of victims.


Thames Trains plead that the Health and Safety Executive has specific responsibility for the railway infrastructure and its safety which is exercised by its specialist Railway Inspectorate.


Thames Trains plead that the Health and Safety Executive owed specific statutory duties, a general common law duty of care and in particular that the Executive by its conduct including its close involvement and knowledge of the Ladbroke Grove junction's infrastructure and signalling system had assumed a duty of care at common law towards railway users, railway workers and passengers.


The matters relied upon in support of this alleged assumption of a duty of care are pleaded in Paragraph 4 (iii)(a) to (m).


The particulars of the breaches of the alleged statutory duties and common law duties are set out in Paragraph 11(i) to (xvii) and cover some 8 pages.

The Application.


The Health and Safety Executive apply for an order striking out the Claim under C.P.R. Rule 3.4(2) on the basis that the Amended Particulars of Claim disclose no reasonable grounds for bringing the Claim.

My Approach to the Applications.


Mr Hugh Carlisle Q.C. accepted that I should not accede to the application unless I was satisfied that the claimant had no realistic prospect of establishing that the Health and Safety Executive owed statutory and/or common law duties to railway users railway workers and passengers giving rise to tortious liability for breach.


It was also accepted that in considering the application I must assume that the factual matters and allegations pleaded in the Amended Particulars of Claim will be proved or admitted at trial.


It is not for me to make any findings of fact or definitive rulings of law but I am bound by and must loyally follow clear statements of law by higher courts.


Guidance to the correct approach on an application of this kind is given by the Court of Appeal in Farah.v. British Airways and the Home Office (6th December 1999) although the facts are far removed from the present case.


In that case British Airways refused to carry the appellants to the U.K. because of allegedly incorrect advice given by a Home Office Liaison Officer to British Airways as to the validity of the appellants' entry documents. The question was whether the Home Office owed the appellants a duty of care. The Court of Appeal held that the judge had been wrong to strike out the claim against the Home Office.


The distinction between that case and the present case is that if British Airways's defence of reliance on Home Office advice succeeded the appellants would have no claim unless they could sue the Home Office direct. In the present case the victims of the disaster have unanswerable claims against Thames Trains and/or Railtrack. There is thus not the policy imperative of making the Health and Safety Executive potentially liable for the loss (see also per Lord Goff in White.v. Jones [1995] 2A.C. 207 at page 259 H).


Nevertheless some analogy can be drawn between the advice given by the Home Office to British Airways and the knowledge, advice, and involvement of the Railway Inspectorate and Railtrack in the situation at Ladbroke Grove.

Lord Woolf M.R. said at paragraph 35:—

"In my judgment, the fact that there is this interest between the Home Office, the carrier and the would-be immigrant, coupled with the fact that any advice given would obviously have a direct affect upon the immigrants concerned, is part of the reason why the facts in this case should be investigated before a conclusion is reached as to whether a duty of care exists or not. This is an area of developing jurisprudence. Where that is so, the question of whether or not an analogous situation should be recognised as giving rise to a duty of care, should be determined when the facts have been established."


Chadwick L.J. said at paragraph 43:—

"In my view it is plain that the legal issue in this case can fairly be regarded as within an area of the law which is developing and as its boundaries become drawn through experience in the cases which come before the court."


Chadwick L.J. referred to the observations of Lord Browne-Wilkinson in Barrett.v. Enfield London Borough Council [1999] 3 W.L.R. 79 who said at page 83 D:—

"In my speech in the Bedfordshire case [1995] 2.A.C. 633, 740–741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out"

(See also per Lord Woolf M.R. in Kent.v. Griffiths [2000] QB 36 at paragraph 37 and 38).


Put shortly my task is to decide whether it is reasonably arguable that the Health and Safety Executive owed to the victims of the rail disaster a direct duty either statutory or at common law or both for whose breach they might have been liable in damages if they had been sued by the victims.

The Statutory Framework.


To answer that question the statutory framework has to be considered.


The general purpose of Part I of the Health and Safety at Work Act 1974 is set out in Section (1):—

"The provisions of this Part shall have effect with a view to—

(a) securing the health, safety and welfare of persons at work;

(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work"


Section 10 of the Act created the Health and Safety Commission and its subordinate the Health and Safety Executive. Section 10(1) reads:—

"There shall be two bodies corporate to be called the Health and Safety Commission and the Health and Safety Executive"


Section 10(7) reads:—

"The functions of the Commission and of the Executive, and of their officers and servants, shall be performed on behalf of the Crown"


It follows that any liability on the part of the Executive to pay damages for breach of duty would become a charge on the general taxpayer which may be an indication that Parliament never intended that breach of statutory duty by the Executive could give rise to a claim in damages and that "public policy considerations" may be balanced against the superimposition of a common law duty of care by the Executive towards the class of persons represented by the victims of the rail crash.


Sections 2 to 9 of the Act impose duties upon employers and others with regard to safety etc. not only for the benefit of employees but other people who may be affected.


For example Section 3(1) reads:—

"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."


The Act clearly envisages that the primary obligation to comply with duties statutorily imposed by the Act or Regulations thereunder rests upon employers etc.


Section 33 of the Act creates criminal offences for failure to discharge duties under Sections 2 to 7 and for contravention of Sections 8 and 9 and of Regulations. Such offences are triable summarily or on indictment.


Section 38 reads:—


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