Health and Safety Executive v Thames Trains Ltd.

A regulatory statutory scheme does not ordinarily create a private damages action against the regulator without clear statutory words. That does not automatically bar a parallel negligence claim. The existence of a common-law duty depends on the statutory context, the authority’s conduct and involvement, and the facts. Where allegations involve participation in, permitting of, or responsibility for an unsafe condition, the claim should not be treated prematurely as a mere omission case. At strike-out stage, dismissal is appropriate only where the claim must fail whatever facts are established.

Thames Trains sought a contribution or indemnity from the Health and Safety Executive following the Ladbroke Grove rail collision. The HSE applied under CPR rule 3.4(2) to strike out the amended claim.

Morland J held that there was no arguable private action for breach of statutory duty, but that a common-law duty of care might arise on the pleaded facts. He refused to strike out the claim. The HSE appealed, arguing that neither statutory liability nor common-law negligence could arise, whatever the facts. The central issue was whether the negligence claim was legally incapable of succeeding without a full factual inquiry.

Waller LJ gave the leading judgment. Mantell LJ agreed, and May LJ agreed with Waller LJ while adding further reasons. The appeal was dismissed.

1. Strike-out threshold. The HSE had to show that each cause of action was incapable of succeeding on any factual version. The pleadings left substantial uncertainty about the Railway Inspectorate’s conduct, knowledge, decisions and involvement. Those matters required disclosure, evidence and trial. The court applied the approach in Barrett v Enfield London Borough Council [1999] 3 WLR 79.
2. Statutory duty. Regulation 4 of the Railway and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994 required approval before qualifying new or altered works, plant or equipment were brought into use. It did not expressly impose a duty owed to individuals or create a private remedy. The scheme protected the public generally, and clear words were required before a regulator could be liable in damages for breach of statutory duty. This part of the claim was therefore not arguable.
3. Common-law negligence. The statutory regulatory framework did not establish blanket immunity. The allegations were not confined to inaction: they included alleged involvement in the design and safety of the system, permitting unsafe infrastructure to be used, and assumption of responsibility. The restrictive approach in Stovin v Wise [1996] AC 923 might not apply outside a bare failure to exercise a discretionary power. Kane v New Forest District Council [2002] 1 WLR 312 and Perrett v Collins [1998] 2 Lloyd’s Law Reports 255 supported leaving the issue open.
4. Discretionary powers and reliance. Even if the case ultimately concerned non-exercise of a statutory power, it was not clear that the alleged conduct was irrational, or that the statutory policy could not require compensation. Public reliance on an independent railway safety regulator was arguable. The court also considered the analogy with air safety in Swanson Estate v Canada (1991) 80 DLR (4th) 741 and the approach in Larner v Solihull Metropolitan Borough Council [2001] RTR 469.
5. Assumption of responsibility. May LJ treated Hedley Byrne v Heller & Partners [1964] AC 465, Henderson v Merrett Syndicates Limited [1995] 2 AC 145 and Merrett v Babb [2001] QB 1174 as relevant guides. The pleaded facts supporting assumption of responsibility could not be dismissed as incapable of sustaining a duty, although the ultimate existence and breach of any duty were left for trial.

The appeal was dismissed with costs. Permission to appeal against the costs order below and permission to appeal to the House of Lords were refused.

• Court of Appeal (Civil Division): On 22 May 2003, dismissed the HSE’s appeal, awarded costs, and refused permission to appeal against the costs order below and to the House of Lords.
• High Court of Justice, Queen’s Bench Division: Morland J, judgment handed down on 23 April 2002, held that the statutory-duty claim was not arguable but that a common-law duty of care might arise, and refused the HSE’s strike-out application.