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Great North Eastern Railway Limited v Gary Neil Hart and Secretary of State for Transport and Another, High Court, 30 October 2003

4 November 2003
The issues

Highway Design – Stovin -v- Wise – motorway design – Civil Liability (Contribution) Act 1978 – ex turpi causa – contributory negligence – Highways Act 1959 Section 67.

The facts

Mr Hart had been driving a Landrover towing a trailer, Westbound on the M62, when he had fallen asleep. He had been driving at between 50 and 55 mph in the nearside lane. The Landrover and trailer drifted over to the nearside as it would naturally because of the road’s camber. It left the nearside lane at an angle of 5 to 6 degrees and crossed the rumble strip, the hard shoulder and went along and down an embankment. At the bottom the Landrover and trailer demolished a stretch of wooden fencing marking the boundary of a field, went through a railway fence, down a cutting and came to rest partly on the North South railway line at Littleheck Bridge which takes the M62 over the line. Seconds after and when the Defendant had managed to get out of his vehicle, a GNER passenger train from Newcastle bound for London struck the Landrover at about 125 mph becoming de-railed. It was subsequently hit by a North bound freight train. Insurers for Mr Hart sought contribution from the Secretary of State for Transport Local Government and the Regions and Network Rail Infrastructure Limited. The Defendant argued that the safety fence alongside the motorway was insufficient.

The decision

1. It was submitted for the Department that no duty of care to prevent the escape of a vehicle from the carriageway, to avoid either physical injury or property damage to those off the highway, existed. However, the Judge could see no reason why in an appropriate factual situation, a highway authority should not owe a duty of care and be liable in damages to those neighbouring the highway if the effective cause of the vehicle leaving the highway and causing the damage was a danger on or adjacent to the highway created by the Highway Authority.

2. This might apply, even in a situation where the vehicle left the highway partly due to the negligent driving of the driver and partly due to a danger negligently created by the highway authority. In such a situation, the Judge could not see why a person suffering damage as a result of vehicles leaving the highway should not recover.

3. The Department in building Littleheck Bridge to carry the M62 over the railway, was under a duty to take reasonable care that not only the users of the motorway but also people and property who could foreseeably be on the railway track would not be exposed to an unreasonable risk of injury. Clearly, leaving a bridge parapet unprotected by any length of approaching safety fencing or barrier, would be a breach of that duty. On the facts in this case however, the Department was not negligent in failing to have a longer approach safety fence to Littleheck on the construction of the bridge in 1974.

4. The Department had submitted that a duty of care in respect of a failure to exercise a statutory power under Section 67 of the Highways Act 1959 could arise only if the Part 20 Claimant/Defendant could show that the failure was irrational and that the policy of the Act called for the payment of damages. See Stovin -v- Wise and Larner -v- Solihull Metropolitan Council. In the Judge’s view however, this case was in principle capable of being distinguished. Stovin -v Wise in the Judge’s view had no application to a situation where the public authority had created a danger. This approach had been followed by the Court of Appeal in Kane -v- New Forrest District Council.

5. It had also been submitted on behalf of the Department that the Defendant/Part 20 Claimant could not succeed because of the principle of ex turpi causa. This could not be right. If ex turpi causa were to defeat a claim for contribution, it would seriously affect the whole basis of motor insurance, since almost all road traffic accidents involve the commission of a criminal offence of one sort or another. The ex turpi causa principle has no application to a claim for contribution in that it is not available as an answer to a claim for contribution under the 1978 Act. If this were otherwise it would make a claim for contribution subject to a condition precedent, which is not found in the Act.

6. Had the Department been negligent, the Judge would have apportioned damages 50/50, taking into account both causation and blameworthiness and the gross negligence of the driver.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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