England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL (Handed Down)
		23rd July 2002

Mr Justice Morland :

The Factual Background
1. At 8.11 a.m. on the 5th October 1999 a disastrous accident occurred at Ladbroke Grove Junction some two miles outside Paddington Station. A westbound Thames Train passed through signal SN109 at danger and collided virtually head on with a eastbound First Great Western high speed train travelling at high speed. 31 people were killed and 259 were injured, some of them critically.
2. Lord Cullen conducted a public inquiry. I was not informed of the evidence given at the inquiry nor of his conclusions. Furthermore I am not aware of them.
3. However, it seems probable that two materially significant causes contributed to the catastrophic accident. There was a failure of look-out on the part of the driver of the Thames train and there was a failure on the part of Railtrack which controlled the infrastructure and was primarily responsible for the signalling system at the junction which was confusing and in particular SN109 to a degree obscure.
4. In order to reduce the need for litigation by the victims or on their behalf an agreement has been reached that Thames Trains will settle or try to settle the personal injury and fatal claims. I was not given details of this agreement but I assume that Thames Trains and Railtrack, or in reality their insurers, were parties to it.
The Claim.
5. The Amended Particulars of Claim are in Bundle I Tab 4. In essence Thames Trains seek contribution from The Health and Safety Executive in respect of the claims by or on behalf of victims.
6. Thames Trains plead that the Health and Safety Executive has specific responsibility for the railway infrastructure and its safety which is exercised by its specialist Railway Inspectorate.
7. Thames Trains plead that the Health and Safety Executive owed specific statutory duties, a general common law duty of care and in particular that the Executive by its conduct including its close involvement and knowledge of the Ladbroke Grove junction’s infrastructure and signalling system had assumed a duty of care at common law towards railway users, railway workers and passengers.
8. The matters relied upon in support of this alleged assumption of a duty of care are pleaded in Paragraph 4 (iii)(a) to (m).
9. The particulars of the breaches of the alleged statutory duties and common law duties are set out in Paragraph 11(i) to (xvii) and cover some 8 pages.
The Application.
10. The Health and Safety Executive apply for an order striking out the Claim under C.P.R. Rule 3.4(2) on the basis that the Amended Particulars of Claim disclose no reasonable grounds for bringing the Claim.
My Approach to the Applications.
11. Mr Hugh Carlisle Q.C. accepted that I should not accede to the application unless I was satisfied that the claimant had no realistic prospect of establishing that the Health and Safety Executive owed statutory and/or common law duties to railway users railway workers and passengers giving rise to tortious liability for breach.
12. It was also accepted that in considering the application I must assume that the factual matters and allegations pleaded in the Amended Particulars of Claim will be proved or admitted at trial.
13. It is not for me to make any findings of fact or definitive rulings of law but I am bound by and must loyally follow clear statements of law by higher courts.
14. Guidance to the correct approach on an application of this kind is given by the Court of Appeal in Farah .v. British Airways and the Home Office (6th December 1999) although the facts are far removed from the present case.
15. In that case British Airways refused to carry the appellants to the U.K. because of allegedly incorrect advice given by a Home Office Liaison Officer to British Airways as to the validity of the appellants’ entry documents. The question was whether the Home Office owed the appellants a duty of care. The Court of Appeal held that the judge had been wrong to strike out the claim against the Home Office.
16. The distinction between that case and the present case is that if British Airways’s defence of reliance on Home Office advice succeeded the appellants would have no claim unless they could sue the Home Office direct. In the present case the victims of the disaster have unanswerable claims against Thames Trains and/or Railtrack. There is thus not the policy imperative of making the Health and Safety Executive potentially liable for the loss (see also per Lord Goff in White .v. Jones [1995] 2A.C. 207 at page 259 H).
17. Nevertheless some analogy can be drawn between the advice given by the Home Office to British Airways and the knowledge, advice, and involvement of the Railway Inspectorate and Railtrack in the situation at Ladbroke Grove.

Lord Woolf M.R. said at paragraph 35:-

“In my judgment, the fact that there is this interest between the Home Office, the carrier and the would-be immigrant, coupled with the fact that any advice given would obviously have a direct affect upon the immigrants concerned, is part of the reason why the facts in this case should be investigated before a conclusion is reached as to whether a duty of care exists or not. This is an area of developing jurisprudence. Where that is so, the question of whether or not an analogous situation should be recognised as giving rise to a duty of care, should be determined when the facts have been established.”

18. Chadwick L.J. said at paragraph 43:-

“In my view it is plain that the legal issue in this case can fairly be regarded as within an area of the law which is developing and as its boundaries become drawn through experience in the cases which come before the court.”

19. Chadwick L.J. referred to the observations of Lord Browne-Wilkinson in Barrett .v. Enfield London Borough Council [1999] 3 WLR 79 who said at page 83 D :-

“In my speech in the Bedfordshire case [1995] 2.A.C. 633, 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff’s claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out”

(See also per Lord Woolf M.R. in Kent .v. Griffiths [2000] QB 36 at paragraph 37 and 38).

20. Put shortly my task is to decide whether it is reasonably arguable that the Health and Safety Executive owed to the victims of the rail disaster a direct duty either statutory or at common law or both for whose breach they might have been liable in damages if they had been sued by the victims.
The Statutory Framework.
21. To answer that question the statutory framework has to be considered.
22. The general purpose of Part I of the Health and Safety at Work Act 1974 is set out in Section (1):-

“The provisions of this Part shall have effect with a view to-

(a) securing the health, safety and welfare of persons at work;

(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work”

23. Section 10 of the Act created the Health and Safety Commission and its subordinate the Health and Safety Executive. Section 10(1) reads:-

“There shall be two bodies corporate to be called the Health and Safety Commission and the Health and Safety Executive ”

24. Section 10(7) reads:-

“The functions of the Commission and of the Executive, and of their officers and servants, shall be performed on behalf of the Crown”

25. It follows that any liability on the part of the Executive to pay damages for breach of duty would become a charge on the general taxpayer which may be an indication that Parliament never intended that breach of statutory duty by the Executive could give rise to a claim in damages and that “public policy considerations” may be balanced against the superimposition of a common law duty of care by the Executive towards the class of persons represented by the victims of the rail crash.
26. Sections 2 to 9 of the Act impose duties upon employers and others with regard to safety etc. not only for the benefit of employees but other people who may be affected.
27. For example Section 3(1) reads:-

“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”

28. The Act clearly envisages that the primary obligation to comply with duties statutorily imposed by the Act or Regulations thereunder rests upon employers etc.
29. Section 33 of the Act creates criminal offences for failure to discharge duties under Sections 2 to 7 and for contravention of Sections 8 and 9 and of Regulations. Such offences are triable summarily or on indictment.
30. Section 38 reads:-

“Proceedings for an offence under any of the relevant statutory provisions shall not, in England and Wales, be instituted except by an inspector or [the Environment Agency or] by or with the consent of the Director of Public Prosecutions.”

31. It is almost impossible to conceive that Parliament could have intended that the prosecuting authority, in this instance in reality the Railway Inspectorate or one of its Inspectors, could be civilly liable for breach of a statutory duty which was the primary obligation of another person, liable to prosecution, to comply with.
32. Section 47 reads:-

“(1) Nothing in this Part shall be construed-

(a) as conferring right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or

(b) as affecting the extent (if any) to which breach of a duty imposed by any of the existing statutory provisions is actionable

(2) Breach of a duty imposed by health and safety regulations...shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”

33. If Parliament had intended the Executive (a government agency) to be civilly liable for the non-exercise of its statutory duties and powers, I would have expected Parliament to have expressly said so.
34. The sub-section (below) emphasises the distinction between claims for personal injuries and under the Fatal Acidents Act and claims for economic loss

“(6) In this section “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).”

35. Sections 18-26 of the Act provide an enforcement regime. Section 18(1) reads:-

“It shall be the duty of the Executive to make adequate arrangements for the enforcement of the relevant statutory provisions”

36. This is essentially a public law duty. The wording is contra-indicative of the Executive being civilly liable in damages for non-performance of a statutory duty or at common law in failing to take reasonable care for the safety of the victims of the rail crash by not exercising its statutory duties and powers. This is reinforced by the wording of Section 20 Powers of Inspectors, Section 21 Improvement notices, and Section 22 Prohibition Notices.
37. Section 22 reads:-

“If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or [likely] to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as ”a prohibition notice”)”

38. The underlining is mine and emphasises the discretionary nature of the exercise of this power.
39. Failure to exercise this power of prohibition is pleaded in Paragraph 11(xv) (c) and (d) of the Amended particulars of Claim.
40. The Railway Inspectorate used to be part of the Department of Transport but its functions derived from the Secretary of State were transferred to the Health and Safety Executive by Regulation 10 of the Railway Safety (Miscellaneous Provisions) Regulation 1997. Mr Carlisle submitted that the use of the word “functions” rather than “duties” was significant.
41. A breach of statutory duty or a negligent failure to comply with that duty is pleaded in Paragraph 11(i) of the Amended Particular of Claim. The alleged statutory duty arises from SI 1994/157 (known as ROTS).
42. Regulation 4(1) reads:-

“the approval of the Health and Safety shall be obtained before-

(a) any new works, plant or equipment; or

(b) any altered works, plant or equipment, which is capable of materially affecting the safe operation of a relevant transport system, are first brought into use for the purposes of that system”

43. Regulation 4(4) reads:-

“In ascertaining the time when any new works, plant or equipment or altered works, plant or equipment are first brought into use, subject to any requirement of the [Health and safety Executive] under regulation 11)1), no regard shall be had to any period during which such new works, plant or equipment or such altered works, plant or equipment are-

(a) necessarily used in order to avoid interruption to the operation of existing transport services before sufficient information is available for a decision to be made on an application for approval; or

(b) with the prior written consent of the [Health and Safety Executive] used for the purposes of

(i) any testing or trials, provided that the testing or trials are conducted in accordance with the terms of such consent; or

(ii) obtaining information to prove their satisfactory performance in connection with an application for approval.”

44. Regulation 5(1) reads:-

“application for approval shall be made in writing to the [Health and Safety Executive] by the operator and shall be accompanied by such of the documents listed in Schedule 2 as are appropriate to the new works, plant or equipment or altered works, plant or equipment which are the subject of the application”

45. Regulation 13(2) reads:-

“An operator who without reasonable cause-

(a) brings into use any new works, plant or equipment or any altered works, plant or equipment without approval; or......

...shall be guilty of an offence”

46. In Paragraphs 11 (ix) to (xii) of the Amended Particulars of Claim the claimants allege that the Executive accepted a Safety Case submitted to them by Railtrack pursuant to Regulation 3 of the Railway (Safety Case) Regulations 1994 which was inadequate and not particularised in accordance with Schedule 1 Paragraph 6 and its validity was not sufficiently tested by inspection and assessment.
47. Regulation 3(1) reads :-

“A person in control of any railway infrastructure shall not use or permit it to be used or the operation of trains or stations unless-

(a) he has prepared a safety case containing the particulars specified in Schedules 1 and 2;

(b) the Executive has accepted that safety case;”

48. Paragraph 6 reads:-

“A statement of the significant findings of the risk assessment the duty holder has made pursuant to regulation 3 of the Management of Health and Safety at Work Regulation 1992 and particulars of the arrangements he has made pursuant to regulation 4(1) thereof.”

49. Regulations 3 and 4 of the Management of Health and Safety at Work Regulation 1992 read:-

“3.- (1) Every employer shall make a suitable and sufficient assessment of-

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.

(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it if-

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates; and when as a result of any such review changes to an assessment are required the employer or self-employed person concerned shall make them.

(4) Where the employer employs five or more employees, he shall record-

(a) the significant findings of the assessment and

(b) any group of his employees identified by it as being especially at risk.

Health and Safety arrangements.

4.-(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of this activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventative and protective measures

(2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1)”

50. A Safety Case is a huge, massively detailed technical document. There must be a very large number relating to various parts of the Railway Network nation-wide. It cannot be emphasised too strongly that the obligation to prepare a thorough and valid safety case rested on Railtrack whose statutory duty it was. Moreover Railtrack had the obligations to review the safety case every three years, to follow it and to audit it (See Regulation 6(3), Regulation 7(1), Regulation 9(4)(c) and Schedule 1 Paragraphs 7, 16 and 18(a)).
51. The Executive, but in reality the Railway Inspectorate, had in my judgment impliedly the duty to judge and assess professionally a safety case before accepting it but that duty would not involve checking and testing the validity of each item in every safety case. Essentially it would be a matter for the Inspectorate to decide the degree of assessment required. In my judgment Parliament would never have intended that an error of judgment or inadequacy of assessment of a safety case before acceptance by themselves would make the Executive liable in a personal injury action.
The Factual Allegations.
52. For the purposes of this application I must accept the factual allegations pleaded by Thames Rail and rule on the Executive’s application on the basis that they will be proved or admitted.
53. I shall summarise the most significant.

“From about 1995 Railtrack began to undertake a major remodelling of the railway infrastructure in the vicinity of Ladbroke Grove and Paddington Station. The new or altered infrastructure was particularly complex:

(i) Between Paddington station and Ladbroke Grove junction there were 6 bi-directional lines with various crossovers enabling a train to be routed from one line to another. To the west of Ladbroke Grove junction the number of running lines reduced to 4 each of which was uni-directional.

(ii) The movement of trains was controlled by means of a signalling system. Between Paddington and Ladbroke Grove the signals were positioned on or in the vicinity of a series of 8 gantries which were constructed above the lines.

(iii) Signal SN109 protected a junction at which there was convergence with the Up Main Line (a uni-directional line for trains travelling east into Paddington station).

(iv) Gantry 8 was positioned immediately to the west of the Golborne Road bridge.

(v) Signal SN109 was not of the usual uniform design.

(vi) The route taken by a train across and between these lines was controlled by means of a computerised Automatic Route Setting system (ARS). A train driver had no control over the route taken.

(vii) Above the lines from Paddington station and beyond Ladbroke Grove there was overhead line equipment (OHLE).

(viii) The signalling system between Paddington and the junction at Ladbroke Grove was introduced by Railtrack in 2 phases: the first was completed in or about January 1995 and the second in or about October 1996. The new or altered infrastructure materially affected the safe operation of the railway. Each Phase required approval by the Defendants pursuant to Regulation 4 of ROTS before the new infrastructure could be brought into use.”

54. Although approval was sought by Railtrack, no approval was given by the Executive. Yet trains ran in and out of Paddington for three years through the altered signalling system without approval.

It is alleged that the Executive:

“Permitted the infrastructure to be used when as they knew full well it was unsafe in that:

(a) It created a foreseeable risk of collision in that signals, and in particular SN109, was obscured and could not safely be seen or interpreted.

(b) Its design did not incorporate measures to prevent or reduce the risk of signals passed at danger (SPADS) at signals including SN109. The need for such measures was well known to the defendants and could easily have been provided.

(c) Its design did not incorporate measures to prevent or reduce the risk of collision in the event of a SPAD at SN109. Such measures were required by Railtrack’s Signal Sighting Standards and Railway Group Standards.

(ii) They accepted at face value and without inquiry or challenge an assertion by Railtrack that the installation of electrical equipment had resulted in a negligible effect on signalling when they knew or ought to have known that this was not so in circumstances where there had been no Signal Sighting Committee in respect of SN109. The failure to convene a signal sighting committee was contrary to Railway Group Standards.

(iii) They failed to ensure that any adequate risk assessment or analysis was carried out in relation to the infrastructure between Paddington Station and the Ladbroke Grove junction. In particular they failed to pursue their inquiry in November 1996 by which they invited Railtrack to confirm that the whole of the Paddington to West Drayton re-signalling work had been subject to a layout risk assessment and failed to take any steps to ensure that recommendation 5 of the Formal Inquiry into the SPAD at SN109 on 4 February 1998 (that there should be a risk assessment of the bi-directional signalling between Paddington and Ladbroke Grove) was implemented.

(iv) They failed to assess the risks created the railway infrastructure properly or at all and in particular failed to do so against objective criteria.

(v) They accepted a Railway Safety Case submitted to them by Railtrack pursuant to Regulation 3 of the Railway (Safety Case) Regulations 1994 which was inadequate in that it did not contain the particulars required by Schedule 1, paragraph 6. Further they failed to test the validity of the safety case submitted to them by means of inspection or otherwise.

(vi) They failed properly to inspect or assess the infrastructure between Paddington and Ladbroke Grove and in particular SN109. In respect of signals including SN109 they failed to have regard to whether or not the signals protected against the risk of collision and of human error.

(vii) They failed properly to communicate with their field inspectors so as to ensure that, for example, they assessed the validity of Railtrack’s Safety Case and were adequately informed about the incidence of SPADs.

(viii) They failed to ensure that Railtrack implemented recommendations of Formal Inquiries and in particular the recommendations the Inquiries in the accident at Royal Oak on 10 November 1995 and the SPAD at SN109 on 4 February 1998.

(ix) The defendants failed in these respects notwithstanding that they knew full well that the sighting of signals including SN109 was inadequate and created a risk of collision. The defendants were aware of this by reason of their site inspections from January 1995, their intimate involvement in investigations into SPADs in the vicinity of Paddington and with proposals to reduce the incidence of SPADs the history of SPADs in the Paddington area (there had been an exceptionally high number), the fact that SN109 was a multi-SPADed signal (it had been passed at danger on 8 occasions prior to 5 October 1999) and was according to the defendants’ own study one of the 22 most frequently SPADed signals on the entire railway network, the fact that the introduction of OHLE in 1995 restricted yet further the visibility and readability of signals. This was especially so on lines 3 and 4, the fact that the defendants had expressed their concern to Railtrack about sighting of signals in the Paddington area from at least February 1995, the collision that occurred on 10 November 1995 at Royal Oak in consequence of SPAD at SN74, the circumstances of the SPAD at SN109 which occurred on 4 February 1998 and recommendation 12 of the Royal Oak Formal Inquiry (that a review of minimum signal sighting times in respect of signals including SN109 be undertaken).”

55. To me the most cogent fact alleged is the Executive’s detailed knowledge of the dangerous state of the signalling system at Ladbroke Grove which was allowed to continue for 3 years, a period which Lord Brennan Q.C., for Thames Trains characterised as inertia but which might more pejoratively be stigmatised as condonation.
Mr Carlisle’s Submission.
56. Mr Carlisle submitted that the Executive owed no statutory duty nor any common law duty to the victim’s of the Ladbroke Grove disaster even if they had special knowledge and involvement in the dangerous signalling system, over a period of three years.
57. As I understood his argument he was urging me to hold as a matter of clear law that the Executive was immune from suit in respect of any claim for personal injuries caused in a rail accident arising from any failure by the Executive in carrying-out its statutory functions whatever the factual context. In effect he was seeking a blanket immunity without regard to the actual factual context.
58. Mr Carlisle stressed that the case against the Executive was one of sins of omission. But in my judgment it is not a case of sins of omission simpliciter but of omissions despite detailed special knowledge, input and involvement in relation to the dangerous signalling system over a period of three years and it is on that bases that I should rule on the application.
59. While I accept that the Executive owes no general duties, either statutorily or at common law, arising out of the 1974 Act or by reason of the fact that the Executive is the Safety regulatory body for Railways, towards passengers and railway workers at large throughout the network, it does not follow that on the particular facts resulting from the Ladbroke Grove disaster the Court could not properly find that a duty did arise at common law towards its victims.
60. I accept Mr Carlisle’s submission that under the framework of the 1974 Act and the Regulations the Executive is a regulatory, supervisory, licensing body. Its task is to monitor the safety standards and performance of others, in this case the infrastructure of Railtrack.
61. I accept Mr Carlisle’s submission that the Executive is at one remove from the passenger and the railway worker. In between are Railtrack and the train operators both of whom have direct statutory obligations in relation to safety and have at common law the duty to take reasonable care for the safety of passengers and railway workers.
62. I accept Mr Carlisle’s submission that the Executive, in reality the Railway Inspectorate, cannot and should not carry out or duplicate the primary statutory obligations and common law duty of Railtrack and train operators. It is their duty to run the railways safely. The Executive’s role is not to run the railways nor to manage the railways from the standpoint of safety. It has neither the staff, nor the resources nor the funding. The Railway Inspectorate is an organisation monitoring the safety standards and performance of others as its name implies. It is not its task to prepare safety cases or to submit for approval alterations to the rail infrastructure.
63. However, in my judgment the Executive has a specific purpose, albeit long-arm or perhaps more appropriately as longstop, safety from personal injury, where the loss may be of life or limb. It thus differs from a Regulatory Body designed to protect against economic loss such as the Commissioner of Deposit - taking Companies as in Yuen Ku Yeu .v. A-G of Hong Kong [1988] 1A.C. 175.
64. The position in this case is different from that of the non-statutory Classification Society in Marc Rich & Co .v. Bishop Rock Ltd [1996] 1 A.C.211 where the House of Lords held that the Classification Society owed no duty of care to cargo owners who had suffered loss through the negligence of its surveyor Mr Ducat although it is arguable that the decision might have been different if claims had been brought in respect of the lives of seaman lost when the vessel sank because it would have been “fair, responsible and just” to impose a duty of care.
65. Lord Lloyd in his dissenting speech said at p.225F:-

“So far as safeguarding life is concerned, it would seem almost self evident that Mr Ducat owed a duty of care towards the members of the crew”

66. In Swanson .v. The Queen in right of Canada [1991] 80 D.L.R.741 The Federal Court of Appeal held, in an action by family members of two of the passengers killed in an air crash, upholding the trial judge, that the safety regulatory body, Transport Canada, as well as the pilot and the airline were equally liable. The judgment of the Court was delivered by Linden.J.A., a master of the Canadian law of tort. He said at page 750E:-

“These people were essentially inspectors of airlines and pilots, who did not make policy, but rather implemented it, although they certainly had to exercise some discretion and judgment during the course of their work, much like other professional people. I agree with Mr Justice Walsh when he stated [at p.149]:

“The Aeronautics Act and Regulations made thereunder if not explicitly imposing a duty of care of the general public, at least do so by implication in that this is the very reason for their existence. The flying public has no protection against avaricious airlines, irresponsible or inadequately trained pilots, and defective aircraft if not the Department of Transport and must rely on it for enforcement of the law and regulations in the interest of public safety. Its expressed policy is, as it must be, to enforce these Regulations, but when the extent and manner of the enforcement is insufficient and inadequate policy but one of operation and must not be carried out negligently or inadequately. While there may be no contractual duty of care owed to the public, as plaintiff suggests, this does not of itself protect defendant from liability in tort”.

“These officials were not involved in any decision involving “social, political or economic factors”.”

67. He said at page 751B:-

“Their task was to enforce the regulations and the ANOs as far as safety was concerned to the best of their ability with the resources at their disposal. This function was clearly operational. Hence a civil duty of care was owed to the plaintiffs to exercise reasonable care in the circumstances”.

68. In my judgment it can be strongly argued that the Railway Inspectorate’s task can be equated to that of the Canadian officials. Railway Inspectors are professional or quasi-professional men and it can be argued the test formulated by McNair J. in Bolam .v. Friern Hospital [1957] 2 All E.R. 118 would be applicable appropriately adapted.
69. However, Mr Carlisle rightly submitted that Swanson’s case was decided against the framework of the Canadian legislation and was considered and not followed by the House of Lords in Stovin .v. Wise and Norfolk County Council (Third Party) [1996] AC 923, (See per Lord Nicholls in his dissenting speech at page 938E.) which, Mr Carlisle submitted, rendered Thames Trains’s claim for contribution hopeless.
70. In Stovin’s case the trial judge had found the Council, the Highway Authority, not in breach of its statutory duty but in breach of its common law duty of care towards Stovin, the motor cyclist, whose visibility was obscured by a dangerous bank and held the Council 30% to blame for the plaintiff Stovin’s injuries. The Council’s appeal was dismissed by the Court of Appeal but allowed by the House of Lords by a majority of three to two.
71. Lord Brennan Q.C. and Mr Morton, for Thames Rail, have boldly pleaded in Paragraph 12 of the Amended Particulars of Claim that:-

“The claimants will contend that following X v Bedfordshire County Council [1995] 2 AC 633 and Z v. Bedfordshire County Council [2002] 34 EHRR 3 the speeches of he majority in Stovin v. Wise should not be followed. However, in so far as my be necessary the claimants will contend that the failure of the defendant to comply with its statutory duty and/or its failure properly to exercise its statutory powers were, in all the circumstances of the case, irrational and that by reason of the intimate and inextricable involvement of the defendant in design use, operation and safety of railway infrastructure and the matters set out at paragraph 5 above it should be liable in damages for its breach of duty.”

72. It would be wrong for me to pass any comment other than it is a developing area of the law where opinions differ at the highest level and if the House of Lords were to wish to consider the present case I anticipate that they would prefer to do it on facts found by the trial judge and not on incomplete factual assertions in the pleadings.
73. Mr Carlisle submitted that in Stovin’s case the position of the Council was weaker than the Executive in the present case. There was a greater proximity between the Council and Stovin than between the Executive and the victims of the crash. There was no intervening Railtrack. As Highway Authority the Council would be liable for personal injuries caused by breach of duty in the maintenance of the Highway itself whether misfeasance or non-feasance.
74. However, in my judgment it may be possible after the facts have been found at trial to argue reasonably that Stovin’s case is distinguishable.
75. Mr Carlisle highlighted passages in the leading speech of Lord Hoffmann where he said, at page 943E:

“The judge made no express mention of the fact that the complaint against the council was not about anything which it had done to make the highway dangerous but about its omission to make it safer. Omissions, like economic loss, are notoriously a category of conduct in which Lord Atkin’s generalisation in Donoghue v. Stevenson [1932] AC 562 offers limited help”.

76. Mr Carlisle stressed that it was not alleged that the Executive did anything positive which caused injury to the victims of the crash.
77. Lord Hoffmann said at page 944B:-

“In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call “externalities,”) the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the costs of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else.”

78. Mr Carlisle submitted that Railtrack and the Train operators were carrying out the activities and they were primarily liable for taking care the rail travel was safe. They should bear the cost of claims if it was not safe and not the Executive the regulatory body, and in the end the public purse and consideration of “policy, fairness and justice” do not warrant an extension of a duty of care in this case.
79. However, in my judgment it could be reasonably argued that the Executive should be made liable not for failing to use statutory powers involving expenditure of money but for failing negligently to use, as the public would expect, their statutory powers through the Railway Inspectorate in carrying out routine duties of inspection and supervision.
80. But Lord Hoffman said at page 954E:-

“It appears to be essential to the doctrine of general reliance that the benefit or service provided under statutory powers should be of a uniform and routine nature, so that one can describe exactly what the public authority was supposed to do. Powers of inspection for defects clearly fall into this category. Another way of looking at the matter is to say that if a particular service is provided as a matter of routine, it would be irrational for a public authority to provide it in one case and arbitrarily withhold it in another.”

81. Mr Carlisle also placed much reliance on Harris v. Evans [1998] 1 W.L.R.1285. Mr Evans was an inspector of the Health and Safety Executive who gave advice to the local authority which as a result eventually served a prohibition notice on Mr Harris preventing him from using a mobile crane for bungee jumping whereby Mr Harris suffered economic loss.
82. The facts of that case are far removed from the present. Harris’s case does not determine whether or not the Railway Inspectorate owes a duty to use reasonable care in the discharge of its statutory duties and powers so as to ensure the safety of passengers and railway workers.
83. Sir Richard Scott V.-C. ended his judgment with these words at page 1303F:-

“I would allow the appeal on the single ground that an inspector under the Act of 1974 cannot be made liable in an action in negligence for economic damage caused to a business by notices under the Act of 1974, whether the notices have been issued by the inspector himself or by some enforcing authority acting on advice given by the inspector.”

84. It should be noted that there was a different result in Welton v. North Cornwall D.C. [1997] 1.W.L.R.570 with which Sir Richard Scott V.-C found some difficulty (see Harris’s case p.1301D). Probably the two Court of Appeal decisions can be reconciled because of their different facts.
85. Lord Brennan in his submission placed much reliance on dicta in Phelps v. Hillingdon London Borough Council [2001] 2A.C.619 where Lord Slynn said at page 644 letter B.

“In this area of the law, as Auld L.J. said in his valuable analysis in the Court of Appeal in G’s case, “The law is on the move and much remains uncertain””

At page 644 Letter D.

“In recent cases before the House concerning applications to strike out statements of claim, the importance of considering actual rather than assumed facts, where there may be scope for argument as to liability, has been stressed”

At page 652 Letter H

“It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v. Enfield London Borough Council [2001] 2 A.C.550 that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of Ministers or officials that the court will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.”

And where Lord Clyde said at page 673 letter D

“But, while no common law can stand in contradiction of some statutory provision, and it may be hard to impose a duty of care in the exercise of a statutory power (Stovin v Wise [1996 AC 923, 954), the existence of a statutory background against which the professionals are exercising their particular skills should not inhibit the existence of a common law duty of care.”

86. Mr Carlisle rightly pointed out the wholly different factual scenario in Phelps from the present case, the close proximate face to face relationship between Pamela and the educational psychologist and the absence of another tortfeasor.
87. Nevertheless despite Mr Carlisle’s powerful arguments and because of the Railway Inspectorate’s alleged close involvement in and knowledge of the dangerous situation at Ladbroke Grove junction with inaction over a period of three years I am not satisfied that the victims of the disaster would not have had a realistic prospect of success if they had sued the Health and Safety Executive.
88. I therefore dismiss the application but it should be understood that I am not in any way indicating that Thames Rail are likely to succeed in their claim for contribution. Stovin’s case will be a formidable obstacle to circumvent.
89. After I had completed in draft this judgment I received a note from Counsel for the claimants which referred me to Professor R.A. Buckley’s article in the Northern Ireland Legal Quarterly (vol 51, No 1) entitled “Negligence in the Public Sphere: Is Clarity possible?”, the decision of the High Court of Australia in the Pyrenees Shire Council case (1997-8 A.L.R. 147), and the decision of the Court of Appeal in Perrett v. Collins [1998] 2 LL.L.R. 255.
90. Reading this material has fortified my view that I would be wrong to allow the application. Although in Perrett’s case the regulatory framework is very different from the present case, Perrett, the plaintiff, was very much in a relationship to the second defendant, Usherwood, the aircraft inspector, similar to that of the victims of the Ladbroke Grove crash to the Railway Inspectorate.
91. I found the following passages in the judgments in Perrett’s case particularly pertinent.
92. Per Hobhouse L.J. at p.261

“A maximum requirement of particularity and contemplation is required. But it has never been a requirement of the law of the tort of negligence that there be a particular antecedent relationship between the defendant and the plaintiff other than one that the plaintiff belongs to a class which the defendant contemplates or should contemplate would be affected by his conduct. Nor has it been a requirement that the defendant should inflict the injury upon the plaintiff. Such a concept belongs to the law of trespass not to the law of negligence.

“In cases of personal injury, it suffices that the activity of the defendant has given rise to the situation which has caused the injury to the plaintiff. Where the defendant is involved in an activity which, if he is not careful, will create a foreseeable risk of personal injury to others, the defendant owes a duty of care to those others to act reasonably having regard to existence of that risk. The limiting factors are the concepts of foreseeability and reasonableness. (e.g. Woods v. Duncan, [1946] A.C. 401).

and at p.262.

“Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury.”

93. Per Swinton Thomas L.J. at page 270

“I would conclude, without difficulty, that a greater injustice would be done to a person injured in circumstances such as those that arise in this case by not imposing a duty upon those responsible for issuing a fitness to fly certificate than would result to the defendants in imposing such a duty. The first and second defendants have undertaken to discharge the statutory duty for the protection of the public and in my judgment no injustice is done by imposing such a duty on them in respect of a negligent act.”

94. Per Buxton L.J. referring to Philcox v. Civil Aviation Authority [The Times June 8 1995] at p.275:

“The ratio of that case was as stated by Lord Justice Millett, that the relationship of proximity alleged to exist between the plaintiff and the Civil Aviation Authority was based on the legislative scheme for inspection, Lord Justice Millett continued:

“It is clear, to my mind, that the risk which the scheme of the legislation is designed to prevent is the risk that the owner or operator of an aircraft will fly the aircraft even when it is unfit to fly; and that the persons for whose protection the scheme has been established are the passengers, cargo-owners, and other members of he public likely to be harmed if an unfit aircraft is allowed to fly. The owners and operators of the aircraft are not within the class of persons for whose protection the scheme has been established; they are the persons against whose imprudent activities the scheme is designed to protect the public. They are not entitled to rely on the issue of the certificate to exonerate them from their own responsibility to ensure that their aircraft are fit to fly.”

By emphasising that that scheme is intended for the protection of persons in the position of the present plaintiff Philcox, as both Lords Justices Hobhouse and Swinton Thomas have pointed out, is strongly supportive of liability in our case.”

95. Subject to any further submissions I consider that the costs of the application should be the claimants cost in the case.