Dunnett v Railtrack Plc

This Court confirmed that a party is bound by the case made in its pleadings and cannot succeed on grounds which were abandoned at trial.

The Court held that the statutory duty under the Railway Clauses Consolidation Act 1845 is generally satisfied by providing a non-defective gate at an accommodation crossing.

Extra or special duties arise only in special circumstances and cannot be inferred where the pleaded case was limited and those matters were not tried.

The claimant appealed a county court judgment dismissing her claim for the death of three horses that escaped onto a railway. The incident followed installation of a new iron gate at an accommodation crossing. The original particulars pleaded a case that the replacement gate lacked an automatic closing device. Prior to trial the claimant's pleaded case was narrowed to reliance on an occasion when a contractor said the gate could not legally be padlocked. The county court rejected liability and made observations about recoverability of PTSD damages citing [1988] 1 QB 304. The claimant appealed on liability. The defendant cross-appealed on the PTSD remarks. The Court of Appeal heard argument and dismissed the appeal.

1. Disposition. Appeal dismissed. The Court (Brooke LJ, Robert Walker LJ and Sedley LJ) unanimously upheld the county court decision and refused to allow the claimant to succeed on grounds abandoned at trial.
2. Pleadings and scope of trial. A party is ordinarily bound by the case it puts forward in its statements of case and by what is actually tried. Where primary allegations were abandoned before trial, the appellate court will not permit a re-run of the abandoned case unless the pleaded case or evidence reasonably permitted it. (See Brooke LJ; Robert Walker LJ; Sedley LJ.)
3. Statutory duty under the 1845 Act. Section 68 of the Railway Clauses Consolidation Act 1845 imposes duties to maintain accommodation-crossing gates. In the circumstances of this case the duty was met by provision of a gate which was not defective. Extra measures (for example, a self-closing device) may be required only where special circumstances make them necessary to avoid foreseeable harm. The pleaded and tried case did not establish such special circumstances.
4. Reliance on informal advice. The county court was entitled to find that the claimant could not reasonably rely upon, and found no actionable reliance upon, the casual statement of a workman about the legality of padlocking the gate.
5. PTSD and cross-appeal. The county court noted the earlier authority of [1988] 1 QB 304 (Attia) on recoverability of psychiatric injury. The Court of Appeal found it unnecessary to decide the cross-appeal comment on PTSD because liability failed on pleaded grounds.
6. Practical guidance. Appellate courts will not permit litigants to advance at appeal an effectively abandoned factual or legal case. Pleadings and the case actually run at trial define the scope of liability to be decided on appeal.

• England and Wales Court of Appeal (Civil Division): Appeal dismissed. [2002] EWCA Civ 302.
• Cardiff County Court: His Honour Judge Graham Jones dismissed the claimant's claim (judgment 1 December 1999).