Gilman v UPS Ltd & Anor

An occupier may owe a duty to protect users of adjoining land from dangers arising from visitors’ activities, including driving or parking vehicles. The duty arises only where the occupier knew or ought reasonably to have known of a reasonably foreseeable risk of danger. The occupier must then consider the magnitude of the risk, the practicability and cost of precautions, and other relevant circumstances. A railway infrastructure operator may likewise owe a duty to consider and investigate risks from adjoining private land, even where it lacks control over that land. But liability requires proof that reasonable steps would probably have prevented the loss. A post-accident report or recommendation does not, without more, establish the pre-accident scope of a duty or overcome hindsight.

The claimant sought contribution from UPS Limited and Network Rail Infrastructure Limited under the Civil Liability (Contribution) Act 1978 after his insurers settled claims arising from his vehicle rolling from UPS’s depot onto the West Coast main railway line and colliding with two trains. Network Rail counterclaimed for its losses.

The central issues were whether UPS should have foreseen and guarded against vehicle incursion from its depot, whether Network Rail should have assessed and mitigated risks from adjoining private sites, and whether any breach caused the collisions. The claimant also sought permission to amend his pleading and raised issues concerning contribution, indemnities and quantum.

1. Amendment. Permission was granted to clarify that the alleged risk extended beyond inadequately immobilised vehicles rolling down the slope to other reasonably foreseeable means of vehicle incursion. The amendment did not materially alter the existing case and caused no compensable prejudice.
2. UPS. As occupier, UPS could in principle owe a duty to adjoining railway users in respect of dangers arising from visitors’ activities. The duty was not automatic. UPS was liable only if it knew or ought reasonably to have known of a reasonably foreseeable risk of danger and reasonable precautions were required after considering the risk’s magnitude, the seriousness of possible harm, practicability, cost and other circumstances.
3. The gentle and relatively unobvious slope, the absence of prior incidents, the existing fence and vegetation, and the limited likelihood of collision or loss of control meant that significant vehicle incursion was not reasonably foreseeable before the accident. The post-accident RAIB and HSE views were materially affected by hindsight. The claimant had not shown that a risk assessment would probably have led to a precaution which would have prevented the accident. The claim against UPS therefore failed.
4. Network Rail. Network Rail owed a duty at least to consider and investigate what practicable steps could be taken concerning private sites adjoining the railway. Its position, unique knowledge of railway risks and the HSC and DfT recommendations made it insufficient to do nothing. However, the UPS site would probably have scored below the high-risk threshold, and the claimant failed to prove that any assessment, communication, HSE involvement or other process would probably have resulted in a barrier being installed before the accident. The claim against Network Rail therefore failed.
5. The court would, if necessary, have assessed responsibility at 60 per cent for the claimant and 20 per cent each for UPS and Network Rail. Network Rail’s indemnity claim against UPS under the access-road licence failed because there was insufficient nexus with the licence and the clause did not clearly cover Network Rail’s own negligence. Network Rail succeeded on its counterclaim against the claimant for £545,000 plus interest. The court also stated that, had quantum arisen, reasonable overall settlements could support contribution under the 1978 Act; the claimant’s own defence costs were not recoverable under section 51 of the Senior Courts Act 1981, and interest above the conventional commercial rate required evidence of actual loss.