“6. Are the Claimant’s Schedule 8 losses recoverable, as being directly consequent on physical damage or do they represent pure economic loss? 7. Are the Claimant’s Schedule 8 losses not reasonably foreseeable, or alternatively too remote as falling outside the scope of any duty owed by the Defendants’ drivers to the Claimant in tort? 8. Do the incidents sound not only in negligence but also in trespass and/or nuisance and, if so, is the measure of damages recoverable by the Claimant any different from the negligence measure?”
“(1) The Secretary of State and the Regulator shall each have a duty to exercise the functions assigned or transferred to him under or by virtue of this Part in the manner which he considers best calculated— (a) to protect the interests of users of railway services; (b) to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that he considers economically practicable; (c) to promote efficiency and economy on the part of persons providing railway services; (d) to promote competition in the provision of railway services; (e) to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator; (f) to impose on the operators of railway services the minimum restrictions which are consistent with the performance of his functions under this Part; (g) to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance.”
“1.2.1 to use the track comprised in the Routes…for the provision of the Services using the Specified Equipment; 1.2.2 to make Ancillary Movements… and to the extent reasonably necessary to give a full effect to the permissions in Clauses 1.2.1, 1.2.2 and 1.2.3 subject to Clause 1.3: 1.2.4 for the Train Operator and its Associates to enter on that part of the Network comprising the Routes, with or without vehicles; and 1.2.5 for the Train Operator and its Associates to bring things onto that part of the Network comprising the Routes and keep them there…”
“6.1 Operation and Maintenance of Trains 6.1.1 The Train Operator shall ensure that the Specified Equipment is maintained and operated to a standard which will permit provision of the Services in accordance with the Working Timetable… 6.2 Track Charges Each of the parties shall perform its obligations set out in Schedule 7. 6.3 Operation and Maintenance of the Network 6.3.1 Railtrack shall ensure that adequate and suitably qualified personnel are engaged in the operation and maintenance of that part of the Network comprising the Routes. 6.3.2 Railtrack shall ensure that the Network is maintained and operated to a standard which shall permit the provision of the Services using the Specified Equipment in accordance with the Working Timetable and the making of Ancillary Movements… 6.6 Possessions Each of the parties shall perform its obligations set out in Schedule 4” 6.1.1 The Train Operator shall ensure that the Specified Equipment is maintained and operated to a standard which will permit provision of the Services in accordance with the Working Timetable… Each of the parties shall perform its obligations set out in Schedule 7. 6.3.1 Railtrack shall ensure that adequate and suitably qualified personnel are engaged in the operation and maintenance of that part of the Network comprising the Routes. 6.3.2 Railtrack shall ensure that the Network is maintained and operated to a standard which shall permit the provision of the Services using the Specified Equipment in accordance with the Working Timetable and the making of Ancillary Movements… Each of the parties shall perform its obligations set out in Schedule 4”
“8.3 Liability for Late Trains Save as provided in Schedule 4 and Schedule 8, the parties shall not be entitled as between themselves to any compensation in respect of any damage, losses, claims, proceedings, demands, liabilities, costs, damages, orders and out of pocket expenses arising from cancellations, interruptions or delays to trains. 8.5 Exclusion of Claims for Consequential Loss Neither party to this Agreement may recover from the other party any loss of revenue (including fare revenue, subsidy, access charges, Track Charges and incentive payments) or other consequential loss in connection with the subject matter of this Agreement caused to it by the other party, save to the extent otherwise provided in this Agreement or any other agreement between them.”
“(a) Subject to paragraph 6.3 and 12.2, in respect of any and all Performance Sums for which Network Rail and the Train Operator are liable in any period, the aggregate liabilities of Network Rail and the Train Operator shall be set off against each other. The balance shall be payable by Network Rail or the Train Operator, as the case may be, within 35 days after the end of the Period to which the payment relates. (b) Subject to paragraph 6.3 and 12.2, and save as otherwise provided, all other sums payable under this Schedule 8 shall be paid within 35 days after the end of the Period in which such payment relates.”
“What kind of "harm" must be contemplated, or properly be assumed to have been contemplated, before a duty to take reasonable care to avoid it can be said, as a matter of law, to have arisen?" He talked at Page 346H of the economic loss being recoverable in the context of it being "purely monetary detriment, to any such loss as was truly consequential upon the material damage to machinery and other articles of property…”
“I therefore conclude that the appellants should be held liable to the respondent, not in respect of the whole economic loss suffered by him, but only in respect of the physical damage caused to his stock of lobsters, and of course any financial loss suffered by the respondent in consequence of that physical damage.”
“The loss of rent arising out of the damage to the building was consequential upon the damage: it was not pure economic loss." He went on to deal with another argument: “Finally, [Counsel] suggested that, although the defendant could reasonably be expected to foresee that the showroom was being put to commercial use and that accordingly he might have to compensate the tenant for loss of profits whose computation would include any rent which the tenant might have to pay during the period of repair, the defendant could not have been expected to foresee the effects of clause 6(3), this being an unusual clause in a lease. Therefore, he said, the loss to the plaintiffs lay beyond the limits of reasonable foreseeability and was too remote to be recovered. In my judgement however, this suggestion falls foul of the principal stated by Lord Reid in Hughes v Lord Advocate[1963] AC 837 , at p845, that a negligent defendant “can only escape liability if the damage can be regarded as differing in kind from what was foreseeable”
“…the damage to the train and SRA passengers, the resulting claim by SRA on RailCorp and payment in respect of the claim by RailCorp to SRA, were consequent on damage to the track caused by the faulty work of Alpcross. Prior to that work being done, the relevant part of the track was in a state such that trains could safely pass over it. The work was not done because the track was defective but because it was desired that the GIJs be replaced. After the work was done however the track was unsafe for trains to travel over it. In physical terms, the track was…buckled and displaced laterally. These physical defects in the track were negligently caused by Alpcross which became, prior to the derailment, liable in tort for the cost of repair of the track. Before the damage was repaired (or indeed detected) that damage to the rail caused the train to derail, with consequent economic loss being suffered by RailCorp. RailCorp’s loss constituted by its payment to SRA was not, therefore, “pure” economic loss, but was loss consequent upon negligent damage to RailCorp’s own property. As a result, ordinary principles of remoteness of damage are applicable to determine its recoverability from Alpcross and the principles as to recovery of “pure” economic loss (see [126] above) are inapplicable. It has not been contended that in these circumstances the loss is not recoverable.”
“137. These authorities [Obestain Inc v National Mineral Development Corporation (The Sanix Ace)[1987] 1 Lloyds Rep 465 and HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd[2006] 1 WLR 643 ] do indeed show that a legal owner can usually recover the value of damaged or lost goods, but they do not assist on the question whether a beneficial owner of personal or real property can sue for damages for loss of use. It is clear that the legal owner can do so provided the loss of use is reasonably foreseeable; it is clear that the beneficial owner can sue if he joins the legal owner. The fact that the loss of use has accrued to the beneficial owner should make no difference to recoverability once the legal owner has been made a party to the suit. We…would be prepared to hold that a duty of care is owed to a beneficial owner of property (just as much as to a legal owner of property) by a defendant, such as Total, who can reasonably foresee that his negligent actions will damage that property. If, therefore, such property is, in breach of duty, damaged by the defendant, that defendant will be liable not merely for the physical loss of that property but also for the foreseeable consequences of that loss, such as the extra expenditure to which the beneficial owner is put or the loss of profit which he incurs.”
“(i) The collision caused the plaintiff’s train services to be significantly delayed. (ii) Pursuant to its Franchise Agreement with the Director of Public Transport, the plaintiff is required to pay Operational Performance Penalties when its services are delayed. A copy of the Franchise Agreement can be inspected at the office of the plaintiff’s solicitors by appointment. (iii) As a result of the collision the plaintiff paid the Director of Public Transport$7,000.77 in Operational Performance Penalties….”
“94 Seeking to draw support from this decision, counsel for the appellant suggested that the category of ‘loss of business income’, is analogous to the kind of loss in this case, namely ‘loss of revenue’ relating to the Franchise Agreement. 95 It is not always easy to discern the basis upon which the breadth of the relevant category is determined in the individual case. It does appear, however, that in the ordinary case a broad categorisation of the kind or genus of the loss will be appropriate…The adoption of a broad categorisation is consistent with the principle that it should not be necessary that the exact course of events which produced the injury was predictable or likely so long as the injury was foreseeable… 96 It is important to bear in mind that the appropriate categorisation of the loss in a given case will be, in essence, a question of policy. In a case which involves an uncommon kind of damage, it may be useful to narrow the category of damage beyond simply ‘economic loss’ or ‘physical injury’, so as to require that the tribunal of fact be given the opportunity to consider its reasonable foreseeability. 97 In the present case, the narrow category chosen by the learned Magistrate is not appropriate as the loss alleged to have been suffered by Metrolink is not that which is of an unusual kind. I observe that much has been made by the respondent before this Court, and before the judge below, of the complexity of the Franchise Agreement. In the modern world, however, complexity of contracts, and the provision of items such as key performance indicators and other performance targets, could hardly be said to be unusual. 98 There is nothing unusual about the expectation that Metrolink would receive remuneration for the operation of its part of the tram network or that it would lose revenue in the event that it could not operate a part of its service. There is no reason of policy that compels a different approach to the recovery of losses calculated by reference to targeted performance obligations which have not been met because of the inability to conduct the service, and losses arising from the same cause which are to be calculated under a different remuneration structure. That this remuneration might be reduced or increased depending upon the operator’s ability to provide the service is unremarkable. That the mechanism by which remuneration for this service is determined might be complex, and be calculated according to a number of key performance indicators, is similarly neither unusual, nor is its complexity a reason to treat it differently from a more simple form of remuneration. For this very reason, the respondent was compelled to concede that it was reasonably foreseeable that fares would be lost as a consequence of interruption to the operation. For liability to be dependent upon foreseeability of ‘a reduction in benefit’ or the ‘imposition of a penalty’, is to lose sight of the fact that these are contractual mechanisms which are part of the manner in which the overall remuneration for the provision of the service is calculated. To require foresight of this is to require what was described in Hughes as foresight of ‘the concatenation of the circumstances which caused the loss’ or as in Cambridge Credits, as ‘the precise manner of its occurrence’. 99 For these reasons I conclude that the learned Magistrate erred in defining too narrowly the kind or genus of the loss suffered by Metrolink. The appropriate categorisation was simply one which required foreseeability of ‘revenue lost as a result of the inability to operate the tram service’… 103 I consider in the present case, that it is in no way ‘far-fetched’ that the collision of a car with a tram, causing an inability to operate trams on the network, might result in a loss of revenue. It is in fact highly likely, or at least a real risk, that the disruption of the provision of any service might result in a loss of revenue to the person who is responsible for the provision of that service.”
“He thus confirms an over-arching formula within which can, and he would say must, be found all cases of recognised duties of care. However he appears to recognise that for some categories of conduct, as for example where it creates a risk of harm (by which I take him to be referring to personal injury), "it is obvious that as a matter of common sense and justice a duty should be imposed". Furthermore, he (like Balcombe LJ in the Court of Appeal, [1994] 1 WLR at 1088-9) appears to be prepared to treat the three factors as interlinked. If this understanding is correct, and it ties in with what Lord Bridge said about attaching greater importance to the more traditional categorisation of established situations of liability (see above), no problem arises. The over-arching formula does not affect the outcome. Established categories, with or without the assistance of 'common sense and justice', provide the answer. The certainty provided by the previous authorities is not undermined. Indeed it would be surprising if Lord Steyn had, by his decision of what he described as a novel question relating to property or economic interests, intended to depart from or call into question established decisions and principles relating to personal injury. It is a truism to say that any case must be decided taking into account the circumstances of the case, but where those circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness; the law cannot be re-made for every case. Indeed, the previous authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff should recover in the situations falling within the principles they have applied. Accordingly, if the present case is covered by the decisions in or the principles recognised by previous authorities - and it is - Marc Rich does not require us to depart from them; indeed, we remain bound to follow them.”
“19.06. Intention or negligence in the defendant It is no defence that a trespass was due to a mistake of law or fact, provided the physical act of entry was voluntary…Similarly, in League against Cruel Sports Ltd v Scott[1986] QB 240 , it was held that a master of hounds was liable for the entry of his pack onto prohibited ground since, knowing of the risk of entry, he negligently failed to prevent an entry. 19.07 Entry without intention or negligence If the entry is involuntary-that is, if it is committed unintentionally and without negligence-no liability is incurred, the High Court of Australia has held that falling onto railway tracks in an epileptic fit is no trespass.”
“Even so, the submissions of learned Counsel…appears to me to be unrealistic when it is thought to be applied to the facts of this case, namely, that (a) the plaintiff was a licensee in the walkway, and (b) his encroachment of a few inches over or upon the sleepers of the commission’s line was only inadvertent and involuntary and the result of his startled turnabout as a result of the warning shout…”
“20-01 Nuisance defined The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land…An actionable nuisance is incapable of exact definition and it may overlap with some other heading of liability in tort such as negligence...Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of (a)…or (b) his ownership or occupation of land… or other rights used or enjoyed in connection with land, when it is a private nuisance, 20-02 Nuisance and trespass The distinction between trespass and nuisance is the old distinction between trespass and case. Trespass is a direct entry on the land of another, and is actionable per se, without proof of special damage, but nuisance is the infringement of the claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage…”