Great North Eastern Railway Ltd v Hart & Ors

A highway authority may owe a duty of care to persons and property beyond the highway where it creates a danger capable of causing vehicles to leave the carriageway and cause harm. At a bridge over a railway, the authority must take reasonable care to provide an approach barrier of reasonable length, assessed by professional judgment, applicable standards, site inspection, topography and the foreseeable risk. The Bolam approach applies to the assessment of professional judgment. Compliance with a minimum technical standard is relevant but does not conclude the question. On the evidence, the barrier was not dangerously short and negligence was not established. The ex turpi causa principle did not bar a contribution claim arising from dangerous driving.

The proceedings arose from the Selby rail disaster of 28 February 2001. Gary Neil Hart’s insurers, acting by subrogation, sought contribution under section 1(1) of the Civil Liability (Contribution) Act 1978 from the Secretary of State for Transport, alleging that the approach safety fencing at Little Heck Bridge was negligently short. Hart had fallen asleep while driving on the M62, left the carriageway and came to rest on the railway line, where his vehicle was struck by trains. The central issues were whether the Department owed a duty to protect railway users and property, whether the barrier was negligently designed or maintained, and whether Hart’s criminal convictions barred contribution.

1. Duty of care. The Department owed a common-law duty, when constructing the motorway bridge, to take reasonable care not only for motorway users but also for persons and property foreseeably present on the railway below. A highway authority which creates the relevant danger may be liable even where negligent driving partly contributes to the vehicle’s departure from the highway.
2. Assessment of the barrier. The required length was site-specific. It had to be assessed by professional highway and bridge designers, taking account of the minimum standards, the protection of the bridge parapet, the risk of vehicular egress, the site topography and the consequences of a vehicle reaching the railway. Applying the Bolam criteria, the professional judgment made in 1974 was not shown to be negligent merely because another expert would have provided a longer fence. The prescribed minimum had been met, and the prevailing expert evidence supported the adequacy of the installation.
3. The evidence of later accidents and the 1993–1995 renewal works did not establish that the barrier was dangerously short. Risk assessment evidence showed that the site presented a low relative risk and did not justify additional protection.
4. Statutory powers and omissions. Stovin v Wise did not govern a danger created by the authority. It would have been relevant to a claim based solely on failure to exercise statutory powers under the highways legislation, but that issue did not alter the result.
5. Contribution and illegality. Hart’s convictions for causing death by dangerous driving did not bar his claim for contribution. The ex turpi causa principle did not apply to the contribution claim, and the contribution legislation gave the court sufficient power to reflect relevant blameworthiness and causation.
6. Negligence against the Department was not established. The claim for contribution was dismissed.