Sean Drummond v Keolis Amey Docklands Ltd

Where the causal relevance of proposed amendments depends on an uncertain factual mechanism, that mechanism may be determined as a preliminary issue. The claimant bears the burden of establishing the relevant fact on the balance of probabilities. Evidence from limited CCTV footage and reconstructions must be assessed in context, including the claimant’s conduct and reasonable inferences from it. An amendment which goes to the root of the claim should be resolved or case-managed before trial. If the necessary factual foundation is not established, consequential amendments become unnecessary. A claim may then be discontinued with the court’s approval.

The claimant suffered catastrophic injuries after entering the Docklands Light Railway track at Canary Wharf and being struck by a train. He brought claims against the operator under the Occupiers Liability Act 1984 and in negligence, alleging inadequate prevention of access to the track and inadequate barriers. He also initially advanced claims under the Human Rights Act 1998, relying on Articles 2 and 8, but those claims were deleted.

At trial, the claimant sought permission to amend the claim to allege that the platform-end gate should have been locked and alarmed. Those amendments were causally relevant only if he had opened and passed through the gate, rather than sidestepping it. The court therefore determined that factual issue as a preliminary issue.

1. Preliminary issue. The court was not satisfied, on the balance of probabilities, that the claimant had opened the platform-end gate and passed through it. The available CCTV footage was incomplete and showed the claimant only partially and briefly. The filmed reconstructions were of limited assistance because they could not sensibly be compared with the original footage.
2. The claimant’s conduct before reaching the gate supported the inference that he knew he was being filmed and believed that the gate was alarmed. It was therefore more likely that he sidestepped around the gate to avoid detection than that he opened it. His physical fitness and agility made that manoeuvre readily achievable. The finding remained marginal, but the court was entitled to draw sensible inferences from the evidence as a whole.
3. The proposed allegations that the gate should have been locked and alarmed were causally relevant only if the claimant had passed through it. Once that factual foundation was not established, further consideration of the amendments was unnecessary.
4. The remaining allegations were not viable. In particular, even if there had been a breach by the Passenger Support Agent on the train, stopping the train in time to avoid the collision would have been practically impossible.
5. The claimant sought to discontinue the claim. The court approved the discontinuance with no order for costs.
6. The court expressed dismay that an amendment going to the root of the claim was addressed only during the fourth day of a trial listed for several months. A pre-trial review or earlier case management could have resolved the issue and reduced costs and stress.