Contribution Claim against the Health & Safety Executive (HSE)

Thames Trains Limited Health & Safety Executive: [2002] EWHC 1415 (QB) – Queens Bench Division – Morland J 23.07.02

The High Court refused to strike out a claim made by Thames Trains Limited over the HSE’s alleged responsibility for the 1999 Ladbroke Grove train disaster, in which 31 people were killed and 400 were injured after a Thames Train went through a signal and collided with an on coming First Great Western high speed train.

Thames Trains are seeking to try and settle personal injury and fatal claims brought by the accidents victims, and are seeking a contribution from the HSE on the grounds that they had specific responsibility for the railway infrastructure and its safety, which was exercised by its specialist railway inspector. Thames Trains pleaded that the HSE 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 junctions infrastructure and signalling systems had assumed a duty of care at common law towards railway users, railway workers and passengers.

The HSE applied for an order striking out this claim under the civil procedure rules that there was no reasonable prospect of success for the claim made against them. (CPR Rule 3.4 (2)).

The question which concerned the court was therefore whether it could be reasonably argued that the HSE owed either a direct duty in either statutory or common law to the victims of the rail disaster or both, for whose breach they might have been liable in damages if they were sued by the victims. It was noted that this was a developing area of jurisdiction and that “ the law is on the move and much remains uncertain (Welton v. North Cornwall DC [1997] referring to Phelps v Hillingdon London Borough Council [2001]).

The facts in this case were that a complex re modelling of the railway infrastructure in the vicinity of Ladbroke Grove and Paddington Station began from about 1995. Railtrack introduced the new signalling systems between Paddington and the Ladbroke Grove junction in 2 phases: the first was completed in or about January 1995 and the second in or about October 1996. Although approval was sought by Railtrack, no approval was given by the HSE. Yet trains ran in and out of Paddington for 3 years through the altered signalling systems.

Mr Justice Morland assessed the duties of the HSE as a statutory body in relation to whether or not it would be possible for a claim in negligence to succeed against them. Mr Justice Morland rejected the argument that the HSE 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. i.e. there could be no blanket immunity without regard to the actual factual context.

Whilst Mr Justice Morland accepted that the HSE owed no general duties, either statutory or at common law, arising out of the Health & Safety at Work etc Act 1974 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 did not follow that on the particular facts resulting from the Ladbroke Grove disaster the court could not properly find that a duty did not arise at common law towards its victims.

In Mr Justice Morland’s judgment he found the most cogent fact alleged was that the Executive’s detailed knowledge of the dangerous state of the signalling systems at Ladbroke Grove was allowed to continue for a period of 3 years.

Mr Justice Morland concluded that; 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. In this respect the HSE is differentiated from other regulatory bodies designed to protect against economic loss.

This is an important judgement in that the possibility that a regulatory body, the HSE, may be liable in negligence or victims of personal injury in circumstances where they had a responsibility over a particular safe system and had expert knowledge of a hazard over which they did nothing, is addressed.

However, it should be noted that this decision is limited to the judge’s refusal to strike out the claim against the HSE before trial. Whether or not the HSE will be held to have owed a duty of care or be ordered to contribute to the damages of the victims remains to be seen.

For further information, please contact Mark Tyler at [email protected] or on +44(0)20 7367 2568 or contact Jessica Burt at [email protected] or on +44(0)20 7367 3589.