Gilman v UPS Ltd & Anor [2013] EWHC 2341 (TCC)

Case No 2MA50084[2013] EWHC 2341 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY
TECHONOLOGY AND CONSTRUCTION COURT
Venue Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester M60 9DJDate 30 July 2013
Before
HIS HONOUR JUDGE STEPHEN DAVIESSITTING AS A JUDGE OF THE HIGH COURT
Between
MICHAEL GILMANClaimantUPS LIMITEDDefendantNETWORK RAIL INFRASTRUCTURE LIMITEDDefendant
Andrew Prynne QC & Fiona Canby (instructed by Keoghs LLP Solicitors, Bolton) for ClaimantNigel Wilkinson QC & William Hoskins (instructed by Clyde & Co LLP Solicitors, London) for First DefendantDavid Drake (instructed by Hay & Kilner Solicitors, Newcastle) for Second DefendantHearing Hearing dates: 2 - 4, 9 - 10 July 2013
JUDGMENTHis Honour Judge Stephen DaviesA Introduction¶¶ 1 – 7 B The witnesses¶¶ 8- 43 C The facts¶¶ 44 – 106 D The claimant’s application to re-amend the Particulars of Claim¶¶ 107 – 116 E The claimant’s claim against UPS¶¶ 117 – 135 F The claimant’s claim against Network Rail¶¶ 136 - 158 G The assessment of an appropriate contribution¶ 159 H Network Rail’s claim over against UPS under the Licence¶¶160 - 161 I Network Rail’s counterclaim against the claimant¶ 162 J Quantum issues in relation to the claimant’s claim¶¶ 163 – 176 K Conclusions¶ 177
[1]The claimant, Mr Gilman, brings this claim at the behest of his insurers seeking contribution under the Civil Liability (Contribution) Act 1978 [“the 1978 Act”] against the defendants, UPS Limited [“UPS”] and Network Rail Infrastructure Limited [“Network Rail”]. His insurers are seeking to recover some of the outlay they incurred in settling claims brought against Mr Gilman by various parties as a consequence of collisions occurring at around 6:00pm on 18 December 2008 on the West Coast main railway line in North Rode just north of Congleton in Cheshire involving Mr Gilman’s motor vehicle and two trains. Mr Gilman’s vehicle rolled down from where it had been left parked in the yard of the parcel depot operated by UPS adjacent to the railway line, broke through a post and wire fence on the boundary, and rolled on down the railway cutting onto the railway line itself, where it came into collision with a Northern Rail train travelling southbound on that line. Minutes later what remained of the claimant’s vehicle came into collision with a Cross Country train travelling northbound. Network Rail seeks by way of counterclaim to recover its losses arising out of these collisions against Mr Gilman.[2]The causes of Mr Gilman’s vehicle rolling from its parked position in the depot yard down onto the railway line is the subject matter of this case. In particular, what I have to decide is whether, and if so to what extent, the collisions were caused or contributed to by any negligence on the part of UPS and/or Network Rail. Before I embark on that process I should like to refer to three matters.[3]First, it is a matter of extreme good fortune that the collisions did not have catastrophic consequences. Although both trains were travelling at some speed and, indeed the first train was derailed as a result of the impact with Mr Gilman’s vehicle, no-one suffered more than minor injuries in the two collisions. As has been said if, after derailing, the first train had turned over or swerved in front of the second train, as could quite easily have happened, the consequences could have been horrific. In the event, the total settlement value paid by Mr Gilman’s insurers in respect of all claims amounted to only £1,464,533, inclusive of all costs, but exclusive of interest, and the total Network Rail claim (as agreed subject to liability) amounts to only £545,000 plus interest.[4]Thus this incident was nowhere near as serious as the tragic accident which occurred in 2001 at Great Heck, near Selby, in Yorkshire, in which a vehicle left the M62 motorway and obstructed the East Coast main railway line, causing a serious train accident in which 10 people lost their lives and many others were injured. That accident is particularly relevant to this case because following Great Heck the Health and Safety Commission [“HSC”] was asked to and did set up a working group to look at the circumstances where road vehicles blocked railway lines and whether there were features in common that might have been preventable. Their subsequent report dated February 2002 [“the HSC report”] made a number of recommendations, which led amongst other things to a series of working groups being set up by the Department for Transport [“DfT”], which subsequently produced a report, in February 2003, entitled “Managing the accidental obstruction of the railway by road vehicles” [“the DfT report”]. That report set out the steps which it considered should be taken by rail infrastructure and highways authorities to manage that risk.[5]The question as to the adequacy of Network Rail’s response to the Great Heck incident and those subsequent reports, as regards taking steps to minimise the risk of such incidents from vehicles on private land as opposed to public roads, is an important matter which arises for consideration in this case.[6]Second, I wish to say something about Mr Gilman. He accepted in evidence his responsibility for his vehicle rolling onto the railway line. The evidence also shows that once he realised that his vehicle had rolled away, he acted with some courage and at great personal risk to himself in following the vehicle in the dark down to the railway line and in getting into it in a fruitless attempt to move it off the line before a train could strike it. It is appropriate that I should record therefore that although his negligence was undoubtedly a substantial cause of the incident it was, I am satisfied, an isolated, fleeting error, and that he did his best to make amends for that error in the minutes preceding the trains coming into collision with his vehicle.[7]Third, whilst liability is fully in issue in this case, in relation to quantum the parties have very sensibly agreed most of the issues subject to liability. Those which remain in issue are few in number and do not require any significant factual investigation. For this reason, coupled with the extremely efficient and able conduct of the trial by all parties, the trial took significantly less time than that estimated, which is always a happy state of affairs. On day 1 I had the case opened by Mr Prynne QC and Ms Canby by reference to the most important documents, viewed the record of the CCTV recording of the yard at the time of the incident, and visited the site. On days 2 and 3 I heard all of the oral evidence and received a number of written statements. During a 2 day break I was provided with closing written submissions and on days 4 and 5 I received closing oral submissions from all parties. I then adjourned to produce this judgment in writing. B. THE WITNESSES[8]I refer first to the witnesses who gave live evidence, in the order they were called.

Mr Gilman

[9]Mr Gilman is a self-employed mechanic who was visiting UPS’ depot on business on the day in question, according to him for the first time. He was an honest witness, who did his best to give his genuine recollection of events, which I accept as generally reliable. He clearly has no positive recollection whether or not he left his vehicle properly immobilised. He instinctively believes that he did but, as he frankly accepted under cross-examination, it is clear from the circumstances of the accident that he did not do so. I set out my findings about what he actually did below, when I turn to address the facts.

Dr Walker

[10]Dr Deborah Walker is an Inspector of Health & Safety employed by the Health & Safety Executive [“HSE”]. She gave evidence about her involvement in relation to the implementation of the recommendations in the post-accident Rail Accident Investigation Branch [“RAIB”] rail accident investigation and report [“RAIB report”], insofar as they related to UPS. She was plainly an honest and reliable witness, who was able to produce her contemporaneous notes and photographs to confirm her recollection of events.

Mr Stanway

[11]Mr Simon Stanway worked as a sub-contractor to UPS at the time of the incident, when he was working in the yard at the depot. He made a statement to the British Transport Police and subsequently made a statement to UPS’ solicitor. There were some significant differences between them, most relevantly to this case about whether he was aware of previous instances when vehicles had been left in the yard without brakes being applied and had rolled as a result. In his police statement he had said that he had been a witness to a number of such previous “rolling” incidents, whereas in his statement to UPS’ solicitor he had said that he had no recollection of any such events. In the run-up to trial UPS’ solicitors had notified the claimant’s solicitors that UPS did not intend to call Mr Stanway, which led to the claimant’s solicitors serving a witness summons upon him. Both Mr Prynne QC and Mr Wilkinson QC were agreed that in order to prevent one or the other being constrained in their examination of Mr Stanway he should be called as a witness by the court, a request to which I acceded. When he attended court he explained that due to his suffering from a post-traumatic stress disorder for the last 2 ½ years or so he had no independent recollection of matters in question and, indeed, had no recollection of having given a statement to UPS, although he was able to identify UPS’ solicitor.[12]He was taken by Mr Prynne through the police statement, which contained the usual declaration as to the maker’s knowledge of the consequences of making a false statement. He confirmed that he had made a number of material alterations to it before signing it on each page, showing that he had considered it with some care before signing it. He confirmed in his evidence that he had been telling the truth when he gave that statement.[13]He was then taken by Mr Wilkinson through the statement he had given to UPS, and agreed he had signed it, and that its contents reflected his knowledge when he made the statement.[14]The principal issue I have to resolve so far as his evidence is concerned is whether his evidence in his police statement in relation to the previous rolling incidents is reliable.[15]The claimant submits that I can and should accept his evidence in his police statement as reliable, because:(a) the statement was made only 4 days after the incident;(b) it is a detailed statement, which was clearly read carefully by Mr Stanway before he signed it;(c) it was made before the onset of the condition which, according to him, has so adversely affected his memory generally.[16]UPS submits that I cannot, because:(a) the police statement statement is obviously inconsistent in important respects with his subsequent statement, which he made without suggesting at the time he made it that he had no independent recollection due to his supervening condition;(b) he was unable at trial to confirm the accuracy of the police statement one way or another;(c) there is a wealth of contrary evidence (in the form of witness statements which the claimant did not require the makers to attend for cross-examination) from various UPS’ employees as to the absence of any previous rolling incidents;(d) there is no documentary evidence of any previous rolling incidents;(e) the police statement is inaccurate in a number of respects, thus: (i) it is inconsistent with Mr Gilman’s own evidence, to the effect that this was the first time he had ever visited UPS’ depot to do business with them; (ii) it mis-describes Mr Gilman’s vehicle, describing it as a “newish 4x4 Hi Lux Box Van”, whereas in fact it was a 7 year old Nissan Terrano 4x4 SUV type vehicle; (iii) it suggests that Mr Stanway was only a “couple of feet away” from the vehicle as Mr Gilman parked it and left it, when the CCTV shows no such person present and when it is extremely unlikely that if he was there at the time he would not also have seen the vehicle roll away as well.[17]I prefer UPS’ submissions on this issue. Whilst the points made by the claimant about the apparent reliability of the police statement are powerful, they have to be set against the facts that:(1) the statement can be shown to be inaccurate in certain not trifling respects;(2) not only is there no independent confirmation of his evidence now, but nor was there at the time, thus there is no other police statement or other evidence to supports Mr Stanway’s recollection;(3) his evidence is inconsistent with a cohort of UPS’ witnesses; although Mr Prynne suggested in closing that I should treat that evidence with scepticism given that the form of words is almost identical in every statement, I agree with Mr Wilkinson that if the claimant had wanted me to reject that evidence it would have been necessary, however tedious the process, for the makers to be called so that their evidence could be tested on this point. Further, it is the experience of the courts that for various reasons some people caught up in significant events such as this have an ostensibly clear recollection of certain matters which is shown on examination to be faulty. My impression of Mr Stanway from his statements and his evidence in court was that he might well be such a person.[18]Accordingly, I am unable to place any reliance on what Mr Stanway said in his police statement about previous rolling incidents. I note in any event that in that statement he did not say that these previous rolling incidents had involved vehicles rolling towards the railway boundary (and indeed, as is common ground, there is a steeper slope in the yard down to the loading bay), nor does he say that these incidents either involved UPS’ employees or that UPS’ management had been made aware of them.

Mr Clarke

[19]Mr Clarke is a real estate manager for UPS, and has been employed as such since June 2008. His involvement was really limited to the negotiations he had been involved in with Network Rail in relation to negotiating a revised agreement in relation to UPS’ use of the access road to the depot, and the limited part he had played in dealing with the repair to the fence separating the UPS depot from the Network Rail land to the side of the railway boundary post-accident. Insofar as I need to rely on his evidence on these factual matters, I accept him as an honest and reliable witness.

Mr Bowskill

[20]Mr Paul Bowskill is a health and safety [“H&S”] supervisor for UPS, responsible for the supervision of the safety officers within UPS’ safety department. He had managerial responsibility for the performance of H&S functions at all UK depots including North Rode, and it was in that connection that he was involved in relation to risk assessment at the depot both before and after the incident in question. Although in closing submissions Mr Prynne categorised him as an unimpressive witness, in my assessment he was an obviously honest and reasonably reliable witness of the facts about which he gave evidence. My only reservation was that although I accept that he did, with his line manager, review the pre-accident June 2008 risk assessment, I am satisfied that it was a relatively cursory review, not surprisingly given that it appears he would have needed to review separate risk assessments undertaken in relation to some 75 depots. Insofar as he suggested that he was able to and did conduct a detailed review of each risk assessment, including the relevant June 2008 risk assessment in relation to North Rode, and in fairness to him I do not consider that he really did make that suggestion, I would not accept it.[21]In his statement he gave, as he was entitled to, his personal view in relation to the RAIB recommendations, the Improvement Notices served by Dr Walker on UPS, and the adequacy of the risk assessments undertaken under his control in June 2008, in February 2010 and in April 2010. Those views were challenged by Mr Prynne in cross-examination. In closing Mr Prynne suggested that post-accident he was “in denial” as to UPS’ failure to appreciate the hazard of vehicle incursion onto the railway line from the UPS depot, obdurate in his refusal to accept the RAIB recommendations and Dr Walker’s endorsement of them, and that his evidence as to what was done by UPS demonstrated a casual approach by UPS to risk assessment. I do not consider these criticisms of Mr Bowskill to be justified; it seems to me to be clear that he held and continues to hold a genuine view that the RAIB recommendations and Dr Walker’s approach went beyond what was reasonably required in relation to mitigating measures and, whether right or wrong, I do not consider that these were other than genuinely held views. I will have to consider the criticisms of UPS’ approach at the appropriate time, but I should say at this point that when I come to do so I do not place any particular weight on his evidence in relation to matters of H&S or risk assessment, because he was not called as an expert witness, and nor did he in his written or oral evidence give sufficient details of his qualifications, training or experience in H&S or risk assessment to enable me to form a view that he had sufficient breadth and depth of expertise in such matters to justify me in treating his evidence as equivalent to expert evidence.

Mr Gale

[22]Mr Matthew Gale was from around 2007 until recently employed as a H&S technician with UPS. He remains with UPS, but in a different department. He was in his former capacity responsible for the district in which North Rode is situated, and took on responsibility for risk assessments in around 2009 - 2010. He undertook the risk assessment at North Rode in February 2010. He came across as an honest and reasonably reliable witness in giving factual evidence about his personal involvement in the case.[23]It is apparent however that when he performed the February 2010 risk assessment he had only just begun undertaking that type of task. He had received training for that task principally by way of shadowing other more experienced H&S employees, including Mr Bowskill. He had not undertaken any formal external training or obtained any formal qualifications. Again, therefore, I do not feel that I can place any particular weight on any views he expressed in relation to the adequacy of the risk assessment process he carried out, because I do not consider that he is sufficiently qualified, trained or experienced for me to do so.

Dr Strong

[24]Dr Neil Strong is employed by Network Rail as an arboriculturalist, a position for which he is well qualified having a PhD in Forestry. His role also extends to drafting guidance and standards for Network Rail relating to railway lineside tree management but also, and of more relevance to this case, railway linelineside fencing. He was called as a witness in this case principally, it seems to me, to address the pleaded criticism that the fence actually present at the railway boundary, being a post and wire fence, was unsuitable to prevent vehicular incursion and was also in poor condition. Thus his witness statement contained a very helpful explanation of Network Rail’s statutory obligations in relation to railway lineside fencing and of Network Rail’s internal regulation of such fencing contained in its “fencing standard”, and he had also made some observations in relation to the line inspection carried out by a Network Rail inspector on 6 November 1998.[25]He had also, perhaps unwittingly, allowed his witness statement to contain certain statements of his personal view which could be said to have strayed outside his particular areas of expertise and responsibility; for example ¶15 where he made certain comments about the likelihood of vehicular incursion. When he was asked about these statements by Mr Prynne he readily accepted that he had no qualifications or experience in H&S issues in relation to guarding against vehicular incursions onto the railway, whether from public or private roads or private land which, as he accepted, neither the statutory obligations nor the fencing standard to which he referred were intended to address. He made it clear that he would defer to his civil engineering colleagues in relation to such matters. It followed that there was very little if anything in his evidence which in the event was contentious, or of great relevance to the issues I have to decide.[26]I was nonetheless satisfied that he was an honest, knowledgeable, careful and reliable witness, and I accept his evidence on matters of fact of which he was able to speak.

Mr Bell

[27]Mr Brian Bell was, until his retirement earlier this year, a long serving employee of Network Rail and its predecessors. From 1998 until his retirement he was a senior technology engineer responsible amongst other things for research and development into civil engineering matters, including safety related matters, and implementing such research. He was a member of the working group on stages 2 and 3 of the DfT report. He seemed to me to be plainly an honest, knowledgeable, careful and reliable witness, whose evidence on matters of fact of which he was able to speak I accept.[28]However, as he readily accepted in cross-examination, his particular area of expertise and responsibility was in the practical implementation of the recommendations in relation to the installation of crash barriers. He was not directly involved in the HSC report (the Railtrack representative in that process being his then principal), nor did he have particular expertise in or responsibility for the risk assessment scoring system as recommended by the DfT report (which was addressed by another Network Rail representative) and as implemented by Network Rail thereafter. His direct involvement appeared to be limited to being involved in the working groups on stages 2 and 3 of the DfT report process, specifically in relation to crash barriers. It is a feature of this case, to which I shall return, that Network Rail called no witness who had been responsible for or was directly knowledgeable about its high level strategic response to the HSC report or the DfT report.[29]In the same way as Dr Strong his statement contained some statements of his personal view which – as he was quite willing to accept under cross-examination – strayed outside his particular areas of expertise and responsibility. It is clear that he had been “put up” by Network Rail as its principal witness to defend the allegations made against it but, in truth, neither his position nor expertise enabled him to provide a fully informed answer to the important questions as to what Network Rail had done post the HSC report in relation to the risk of vehicle incursion from private land (as opposed to public roads) and why it had chosen to do what it did. He was able to provide some answers and some information, but not as much as those – whoever they may be - who had direct involvement in those decisions. Again, therefore, the impact of his evidence, once those points had been put to him and he had fairly accepted them, was less significant than might have appeared from a reading of his statement.[30]Moreover, although Mr Prynne, perfectly understandably given what he said in his witness statement and given that he had been put up by Network Rail as the appropriate witness to in effect defend its stance, put the claimant’s case to him and obtained some favourable answers in response, I do not think for the same reasons that I can necessarily treat those answers – insofar as they related to Mr Bell’s opinion as to what Network Rail could and should have done – as being in any way conclusive against Network Rail. They are undoubtedly pieces of evidence to which I should have regard, but bearing in mind when I do the limitations of Mr Bell’s knowledge, responsibility and expertise.

Mr Hopwood

[31]Mr Michael Hopwood was the claimant’s expert in the field of civil and highway engineering pursuant to the permission given in the order made 7 August 2012. He began his career as a technician on highways projects, before becoming a local authority planning supervisor and H&S liaison officer and subsequently a local authority highways engineer, and then joining a private consultancy investigating and giving expert evidence in relation to claims, principally highways claims, and H&S related matters, in 2007.[32]He had produced a report dated 29 January 2013, following 2 visits to the site. Initially he had been instructed to consider the adequacy of the railway boundary fence and, subsequently, four further issues namely: (2) issues relevant to vehicle parking at the depot, including gradient, surface and warning signs; (3) how the accident occurred; (4) the risk assessments undertaken by UPS; (5) any action UPS could have taken to prevent vehicle incursion onto the railway line. His report duly addressed issues 1 – 3, and no criticism is made of his conclusions in those regards. In addressing issue 4 he began by providing useful detail in relation to the relevant statutory requirements, considered the content of the risk assessments, and then under sect. 7.2 continued as follows:(a) he accepted that the question as to whether the risk assessment was suitable and sufficient was one for the court;(b) he noted that there was no recognised guidance on the risk of vehicle incursion from private land;(c) he identified the DfT report, suggested that there was “no reason” why the risk assessment scoring system identified in that report for public roads could not have been used to score private sites as well, and that the DfT report was known to highways authorities, and then said this: “whilst I would not necessarily expect a company such as UPS to be aware of it I would expect a safety consultant to have been. This will be for the Court to consider”;(d) he expressed his opinion that the hazard of vehicle incursion was reasonably foreseeable pre-accident. Having considered the control measures in place at the time of the accident, in sect. 7.4 addressed the control measures which UPS could have taken, and said that as an alternative to installing an expensive and substantial system for restraining vehicles there were several other “realistic and affordable options” namely installing a line of trees in front of the fence, installing a kerb face around the perimeter, or building the verge up.[33]UPS had also instructed an engineering expert, a Mr Mottram, who had produced a factual report on the slope of the ground at the depot in 2010, and a supplementary report in May 2013 commenting on certain aspects of Mr Hopwood’s report. In short, he said that he was unable to offer any opinion as to foreseeability which was not tainted with hindsight, but did say that in his opinion there was nothing unusual or out of the ordinary in the slope of the ground down towards the railway boundary, which was within the recommended gradient stipulated in the Building Regulations for rainwater drainage of paved areas and small car parks.[34]The experts then met and produced a joint report, in which:(1) they agreed as to the gradient of slope of the ground down towards the railway boundary, and that the gradient was conducive to providing adequate surface water drainage;(2) they disagreed on the immediate cause of the accident, the question of whether there was a foreseeable significant risk of vehicle incursion due to the slope and the fence, and the suitability of the place where Mr Gilman parked in terms of its slope.[35]Under cross-examination Mr Hopwood was asked why he criticised the June 2008 inspection, which prompted him to identify a number of other matters which had not featured in his report. Thus he referred to the potential of uncontrolled vehicle movement following a collision, which he identified as a hazard. He suggested that the risk of a vehicle occupied by a driver, rendered unconscious by a collision or otherwise, travelling down the slope and through the inadequate fence was foreseeable from a visual inspection of the site. He said that he identified a hazard arising from the combination of the slope and the inadequate fence coupled with the risk of any uncontrolled vehicle movement, whether from a stationary or a moving car, and whether due to not properly applying the handbrake, mechanical failure, black ice or otherwise. When he was asked whether he would have foreseen what actually happened in this case, he did not answer specifically, saying that he would be surprised if very specific circumstances such as that would be identified in a risk assessment. He said that the person conducting the risk assessment should have assessed the risk of vehicle incursion for whatever reason, because of the combined risks of the slope and the inadequate fence. Indeed he then added a further observation that the yard surface, made of limestone, was itself notoriously slippery in wet weather.[36]It was suggested to him that his views as expressed in the joint report in relation to matters of disagreement were all matters for the court to decide and not for expert opinion. It could of course be said that as an engineering expert he was not competent to answer that question either, but his answer was that where he was able to assist the court from his own expertise he would do so.[37]In closing submissions Mr Wilkinson mounted a vigorous criticism of Mr Hopwood’s approach and evidence, describing it as unattractive and impressive for a number of reasons, principally that:(1) His opinions amounted to no more than exercises in hindsight. He never made any serious attempt to put himself in the position which a safety consultant conducting a risk assessment prior to, and hence without the hindsight conferred by, the accident would have been in;(2) He had given opinions in oral evidence which went significantly beyond his evidence in his report and in the joint report, thus substantially extending his criticism of the pre-accident June 2008 risk assessment by reference to the potential of unrestrained vehicle movement of all kinds, not just parked cars on the slope without proper immobilisation. In particular his gratuitous reference to the composition of the yard surface showed that he was intent on pursuing any criticism, no matter how far fetched.(3) He had failed to enquire about or to address the accident history at the depot so as to consider, for example, whether any of the risks he identified had in fact ever materialised.(4) In an attempt to seize on any point to criticise UPS he had wrongly concluded in ¶3.2.2 of his report that the palisade fencing erected by Network Rail alongside the access road to the deport was “probably” intended to deter human access and provide a vehicle restraint, whereas there was no basis for that supposition, and in fact it was clear from the Network Rail evidence, particularly that of Dr Strong, that the palisade fencing was never intended to provide vehicle restraint.[38]In considering these criticisms I bear in mind Mr Prynne’s submission that since UPS had decided not to call its own engineering expert, Mr Mottram, to give evidence, Mr Hopwood’s expert evidence was effectively uncontradicted. However in my judgment very little significance is to be attached to this point because it is clear from the joint report that Mr Mottram’s position was that he did not think either he or Mr Hopwood could usefully opine on the matters on which they disagreed, so that there would have been no point in UPS calling Mr Mottram simply to re-state that view. Mr Prynne submitted that Mr Hopwood’s evidence was valuable evidence as to what a competent safety consultant should have identified, although he did acknowledge that ultimately this was a question for the court to decide, and that the court is not bound to accept evidence given by an expert witness, even where, as here, it is uncontradicted by other expert evidence.[39]I must say that I was not overly impressed by Dr Hopwood as a witness, and I consider that there is force in the criticisms made by Mr Wilkinson, although I should also say that I do not consider that his failings were quite so egregious as were suggested by Mr Wilkinson. In particular however:(1) I agree that there was a large measure of hindsight in his evidence. He made no real attempt to look at the position as it would have appeared to someone in June 2008.(2) That explains in my judgment why in his report he looked solely at the risk by reference to the slope and the fence, thus from the perspective of what had actually happened rather than what would have been apparent on an inspection without foreknowledge of the accident. It was only later in his oral evidence that he expanded upon his reasons for identifying the hazard of vehicle incursion.(3) I also agree that there was an element of partisanship in his evidence. In particular the reference to the limestone yard surface did seem to me to be thrown in as an afterthought to buttress the claimant’s case, and the attempt to differentiate between the UPS fence and the Network Rail palisade fence did seem to me to be an attempt to advance the claimant’s case which, as it turned out, was misconceived because Mr Hopwood had misunderstood the purpose of the palisade fencing along the access road and, in particular, the purpose of the angled supports behind some of the posts. That misunderstanding was surprising, given Mr Hopwood’s experience as a highways engineer, but as – if not more – damning was his use of the word “probably” rather than “possibly” when stating his opinion as to the purpose of the palisade fence or indeed simply to state, frankly, that he did not know whether the palisade fence was intended to provide some degree of vehicle protection or not.(4) I also found myself unimpressed with his suggestion in ¶7.2.3 & 4 of his report that a safety consultant such as Sypol could have been expected not only to be aware of the DfT report but also to have considered applying the scoring system in it to risk assess private sites as well. It seems to me to be quite unrealistic to expect a safety consultant undertaking an assessment of the UPS depot in June 2008 to have decided, in the absence of any guidance to this effect, that because it adjoined a railway line it was necessary or even appropriate to use a scoring system in the DfT report to risk assess the risk of vehicle incursion onto the railway line. In my judgment in so stating he was using hindsight and, very likely, transposing his own knowledge and experience as someone who had spent most of his working life in the highway industry to safety consultants generally, without explaining why they should have been aware of this guidance which would have no application to anyone not involved in highway or railway safety. Moreover, if that was his genuine view, it is surprising that he did not consider it appropriate to conduct his own retrospective risk assessment, based on the evidence available to him as to the position in June 2008, so as to be able to explain what it would have revealed. At the very least I would have expected him to comment on the risk assessment attached to the RAIB report, which he had clearly seen. Instead, all that appears in his report at ¶7.2.5 is the – to my mind – unacceptably simplistic view that since the condition of the fence was obvious as was the slope down to the railway boundary “on that basis the hazard of vehicle incursion from the depot was in my view reasonably foreseeable … in June 2008”.(5) I also found myself troubled by his opinion in sect 7.4 of his report, to which I referred in ¶32 above. First, his reference to the “expensive and substantial system” is, I can only assume, a reference to the crash barrier which UPS eventually installed after having been served with Improvement Notices by Dr Walker, which implies that Mr Hopwood had reservations about this as an option, but did not spell them out in his report. Second, he identifies 3 alternative options as “realistic and affordable” but there is no detail provided in his report as to any of them. In particular, in contrast to the detailed analysis in sect 5.2 of his report as to whether the crash barrier as installed would have prevented Mr Gilman’s car breaching the boundary, there is not even the most cursory analysis as to whether any of the 3 suggested alternatives would have done so. So far as the first is concerned, planting a row of trees, it is obvious that if that had been suggested in the June 2008 report any saplings planted would have been most unlikely to have offered any real impediment to Mr Gilman’s vehicle even had they been planted by December 2008. In cross-examination he said that “some form of barrier was needed, not necessarily a metal barrier, something less may have been ok”. Whilst he was not pressed on this, nonetheless it seems to me to be both surprising and unimpressive that he was not able, whether in his report or in his evidence, to identify whether there were any real alternatives to a crash barrier which would have provided, at substantially less cost, sufficient protection to guard against the risk which he identified, and if so whether on the facts as known to him it would have prevented this accident from occurring. These are matters which are directly within his expertise, and should have been addressed in his report and, although as I have said he was not pressed on this in cross-examination, nonetheless the view I take is that these omissions are unimpressive.[40]For all those reasons, I find that I can place little if any weight on the opinion evidence of Mr Hopwood.

The evidence which was read

[41]The claimant introduced without objection a police statement from Mr Paul Atkinson, a tyre fitter working for a separate company who happened to be present at the depot at the time of the incident. The claimant also relied on factual evidence served in relation to quantum, in respect of which the defendants did not require the makers of the witness statements to be cross-examined, and to which I shall refer in due course.[42]As I have said, UPS relied on a large number of statements made by their employees, where the other parties did not require the witnesses to be called to give evidence, and I have had due regard to their content. C. THE FACTS

The UPS depot

[43]The UPS North Rode depot is a light industrial premises, which adjoins the West Coast main railway line, access being obtained via an access road also running along the railway line from the highway. The depot is known as the Tileries, which reflects the fact that it was originally a tile manufacturing factory. At some point that use ceased and it became the base for a road haulage business and then, sometime in around 1969, it was acquired by a company known as Carswells and used as the base for its parcel delivery business. Finally, the depot was acquired by UPS in 1992 from Carryfast, as part of a corporate acquisition by UPS of that business. The North Rode depot is small by UPS’ standards, with some 60 – 70 employees being based there. It appears from the evidence that some 30 – 40 UPS vehicles use the depot as their base. Private cars, both of customers and employees, also drive to and from and park in the yard on a regular basis.[44]The access road is owned by Network Rail. Pursuant to a Licence dated 8 September 2003 Network Rail granted UPS the right to use the access road on terms which are immaterial save for clause 4.2, on which Network Rail relies for an indemnity against UPS if it is held liable to the claimant in this case, and which provides that UPS is:
“to indemnify [Network Rail] from all losses costs and third party claims or other liability (including for death or personal injury) arising in any way from the grant or existence of this Licence and anything done as a result of its grant or existence.”
[45]The depot comprises a series of interconnected buildings set in a roughly rectangular shaped yard. Access is gained from the south west corner via the access road. As one enters the site the building is immediately in front. Alongside the whole length of the buildings, between the east flank of the building and the boundary with the railway to the west, lies a strip of land, wide enough for vehicles to pass. Emerging from that passage there is a small yard to the rear of the buildings, which also has as its west side the railway boundary. Turning east from that small yard on the far side of the buildings there is a larger open yard area, and room for vehicles to complete a circuit by driving along the front of the building and back to the entrance. The length of the site adjoining the railway boundary is some 95m in length, of which the rear yard occupies approximately half.[46]It is this rear yard which is relevant to this case. The rear of the building at this point is used as a loading bay, and the rear yard slopes down towards the loading bay. Along the length of the railway boundary the rear yard slopes down, away from the building and towards the railway boundary, at a slope of about 1 in 40. The slope is approximately 15m from the highest point down to the railway boundary. My own impression from the site visit is that when one is standing in this area the slope is not obvious to someone who is not particularly thinking about the lie of the yard, particularly in comparison with the slope down to the loading bay, which is significantly more pronounced, but if one is particularly looking to assess the lie of the land then the slope is clearly visible.[47]The evidence is tolerably clear that as at 2008 UPS operated a one way system under which vehicles entering the depot were expected to turn right and pass along the front of the building and then around the side and rear of the building to the rear yard and through the passage along the railway boundary to exit where they came in. However, that system was fairly poorly marked with just one or two “no entry” or “one way” signs dotted haphazardly around the depot. Furthermore, although there was, so it appears, a notional 5mph speed limit, there were no speed limit signs to make visitors aware of that limit. Also, although it appears that notionally the system was that visitors with vehicles should park in the open yard area to the east, so that only UPS vehicles would use the small yard, for loading and unloading, and for parking, washing and maintenance, there was no designated parking area for visitors or indeed for UPS vehicles, nor was there any defined vehicle circulation area or defined pedestrian area.[48]There is a concrete post and wire chain link full height fence running all the way around the depot. The evidence of Mr Taylor, one of the witnesses whose statement was put in evidence by UPS without challenge, is that the fence was erected prior to 1988 because it was in place when he started with Carryfast in 1988. It is clear that there has been some issue as between UPS and Network Rail as to whether the fence was erected on the railway or the depot side of the boundary, and thus as to whether UPS or Network Rail is legally responsible for the fence. I have not in this case, thankfully, received evidence or submissions on this point as if I was trying a county court boundary dispute case, rightly so since in my judgment the position is quite clear. The fact that the fence extends around the whole depot boundary shows quite clearly that it was erected by a previous depot owner. It may be presumed therefore in the absence of evidence to the contrary that it was erected on the depot side of the boundary, and thus that it is the depot owner’s responsibility. That presumption is consistent with the fact that Network Rail did not replace the fence with palisade fence beyond the point where the access road meets the depot (see below). As Dr Strong observed in evidence, one can see the remnants of an old post and wire fence on the railway side of the boundary, and the way in which the fence has been constructed is consistent with it being constructed by the depot owner.[49]Along the railway boundary the fence lies right at the top of the railway cutting, which falls down in a steep slope (approx. 1 in 2) some 5m to the railway line below. The railway cutting contains vegetation of various kinds, including some trees. There is no kerb along the railway boundary in the rear yard, although there is what looks like an old, fairly low, kerb along the railway boundary in the passage leading from the rear yard to the entrance.[50]A Network Rail inspection report of November 2008, carried out as part of a regular lineside inspection, classified the condition of the fence along the railway boundary as “good”, even though the evidence post-accident showed that it was not in what one would ordinarily regard as good condition, with posts leaning towards the slope and sections of chain rusting. However, as Dr Strong clarified in cross-examination, the use of the word “good” means only, in the context of the relevant fencing standard, that it is fit for current use, where that is simply to prevent unauthorised access by humans or animals, and not to prevent vehicle incursion. As Dr Strong said, the fact that the fence was inspected by a Network Rail inspector does not indicate that Network Rail assumed responsibility for it; Network Rail’s approach is that if there is a sufficient fence on the adjacent landowner’s side of the boundary that is sufficient to discharge their statutory fencing responsibilities without them needing, therefore, to provide their own fence along the boundary.[51]Since the accident, and in order to comply with the Improvement Notices served on UPS by Dr Walker of the HSE, there is now also a low level vehicle barrier fence extending along the railway boundary, immediately in front of the existing fence, extending over approx. the rear half of the rear yard. The signage has also been improved and, in particular, there is now a much larger sign at the entrance indicating the one way traffic flow and also a revised 10mph speed limit. Further, parking areas for visitors are properly defined, as are vehicle circulation areas and pedestrian routes.[52]However, notwithstanding that previously the system at the depot in terms of minimising the risk of vehicle/vehicle or vehicle/pedestrian accident was clearly not ideal, and there were H&S concerns in those respects expressed both in the June 2008 risk assessment and by the RAIB and the HSE after the accident, there is no evidence of any prior accidents or incidents at the depot, whether collisions or near misses. Further, there is no evidence of there being any prior accidents or incidents involving any vehicles losing control in any way at or near the railway boundary and either striking the fence let alone going through it. There is no evidence – as I have found – of previous rolling incidents involving vehicles inadequately immobilised for one reason or another, or vehicles skidding on black ice or in the wet, or otherwise.[53]I have already referred to the access road. On the railway boundary of the access road is the galvanised metal palisade fence referred to by Mr Hopwood, which is undoubtedly more robust than the post and wire fence along the depot boundary. The evidence indicates that it was probably erected as part of the West Coast railway line improvement works which were undertaken sometime, I think, in the 1990’s. As I have said, I am satisfied from Dr Strong’s evidence that there is no basis for a suggestion that it was erected to provide some protection against vehicle incursion as well as to protect against unauthorised access on to the railway track. Although there are some post supports at certain locations his explanation, which I accept, is that this is simply to provide extra support to those posts due to the falling ground immediately behind the fence, rather than to provide extra resistance to vehicles.[54]Approximately half way along the access road is a side road leading off down to the railway track, the purpose of which is to provide road rail vehicle access to the railway track. This road is barred by a gate, but also to the railway line side of the road, as it falls down diagonally along the line of the slope to reach railway line level, there is a low level vehicle barrier fence which was also, it appears likely, erected during the West Coast line improvement.

The Great Heck accident

[55]I have already referred to this serious and tragic event, which occurred in 2001. For present purposes it suffices to note that it involved a vehicle leaving the M62 motorway, due to the driver falling asleep, and then travelling down the motorway embankment and down the railway cutting onto the East Coast main railway line, where it collided with and derailed a train, causing 10 fatalities and many other injuries.

The HSC report

[56]As I have also already mentioned, the HSC was asked to and did set up a working group to examine the circumstances in which road vehicles had blocked railway lines, and whether there were features in common which might have been preventable. I have been referred to the resultant report in some depth. The following points are material:(1) The report was not limited to vehicle incursions from public roads onto railway lines. The remit was to consider all incidents in which road vehicles blocked railway lines and, thus, included vehicle incursions from private roads or land as well: see ¶8.(2) The group considered the extent of the risk. In short the report concluded [¶16] that there were 20-30 vehicle incursions onto railway lines each year, of which 4-5 were hit by a train. From 1976 – 2001 there were 11 recorded fatal collisions between trains and vehicles (other than at level crossings): ¶17. It identified the risk in context as being “small in comparison with other railway risks and tiny in comparison with the other more everyday risks of people driving off the roads”: ¶23. Nonetheless, it considered that the risk was not insignificant, and merited serious efforts to explore effective means of risk reduction, but that these should not “leapfrog” over the other railway and road safety issues vying for attention: ¶29.(3) It considered that the main causes of vehicles getting onto railway property were road accidents and vandalism, with unintentional manoeuvres / loss of control being less than 10% of occurrences: ¶38. The two most common types of place for vehicle incursion were roads and land with road access, but the highest number of fatal accidents involved vehicles leaving bridges: ¶40, with causative factors of poor driving, including speed, being common in such cases: ¶47. It also noted the particular hazards identified in relation to particular locations, including driver loss of control in adjacent car parks and land with road access, and collisions or shunts in the former: ¶50.(4) The group noted certain difficulties arising from the legal context in relation to public roads, railways and private land, including the fact that the Health and Safety at Work Act 1974 and regulations made thereunder do not apply to highways authorities, whereas they do to railway companies, and the fact that railway companies may identify a hazard outside its land where it has no authority to take action: ¶58-63.(5) The report concluded that a blanket application of measures at all locations would be ineffective and inappropriate [¶89], and that what was needed was a process of risk assessment to identify high risk locations [¶95-96] and a process of prioritisation of high risk locations and of identification of appropriate engineering measures to prevent vehicles getting onto the railway line at such locations [¶103]D.(6) Specifically, the report recommended (recommendation 1) that the DTLR (the predecessor of the Department for Transport – “DfT”) should lead the development of risk assessment tools for use by highways and railway professionals to separate out low and high risk sites, which tools should be useable for all locations, including “locations where road vehicles can gain access to the railway via adjoining land”, i.e. private sites: ¶107. It further recommended (recommendation 4) that those bodies which it identified as responsible for particular locations should lead programmes of risk assessment work to identify low and high risk locations, to identify reasonably practicable measures for high risk sites, and to implement them – normally within 2 years of identification: ¶111. In relation to public roads, the lead party was identified as being the relevant highways authority for the road in question, and in relation to private sites, the lead party was identified as the “relevant railway infrastructure controller or premises controller”. More generally, DTLR was to maintain general oversight of this programme. The report went on to make further detailed recommendations in relation to public road / railway interfaces as to: (1) the development of good practice guidance on the proportionate application of available measures (i.e. what if any works should be done at particular types of site) (recommendation 5 at ¶113); and (2) the development of a protocol for apportioning responsibility and costs for such improvements (recommendation 6 at ¶114); (3) DTLR reviewing progress in relation to those two developments (recommendation 7 at ¶115).[57]What, however, the HSC report did not make any detailed recommendations about was how the process would be taken forwards in relation to private sites. It clearly envisaged that the risk assessment tools should be capable of use at private as well as at public road sites. It did not, however, recommend any proposals for establishing whether the subsequent programme of risk assessment of private sites using those tools should be led by the railway controller or by the premises controller, nor whether the identification and undertaking of improvement works should be led by, undertaken by, or funded by, the railway controller or premises controller, or both of them in some agreed manner.[58]In short, it seems clear to me that the HSC effectively put the difficult question of what to do about private sites to one side. It was a difficult question for the reasons identified in the report, namely that unlike public road sites, where only a relatively small number of state funded bodies with much common interest were involved, dealing with private sites would involve the railway controller and a large number of landowners of many different kinds, whose interest in issues of railway safety would vary hugely, as would their willingness or ability to fund any works, in circumstances where the railway company had no authority to take action itself on their land. Given the evidence in relation to the relative risk from vehicle incursion from public as opposed to private locations, and in particular the evidence that the majority of really serious incidents involved vehicles leaving public roads, particularly road bridges, and in circumstances where speed and driver error were obviously significant causative factors, it is perhaps not surprising that the HSC concentrated its recommendations on that category of site. The problem however is that the report did not provide any clear recommendation one way or another to the railway authorities as to what, if anything, they actually should do in relation to private sites.

The DfT report

[59]The DfT set up a working party to produce a report to respond to the recommendations contained in the HSC report, setting out the steps which it considered should be taken jointly by the railway controller and the highway authorities to manage the risk of vehicle incursion. The report was produced in February 2003. For present purposes the following points are material.(1) The members of the working groups included, as would be expected, representatives from highways and rail bodies, but no representatives of private landowners, although there were representatives from the HSE which of course has statutory responsibilities in relation to H&S issues involving private sites.(2) Chapter 3 contained the risk assessment tools recommended to be developed by recommendation 1 of the HSC report. There were 3 risk ranking tools, the first applying to single carriageway bridges, the second applying to motorway and dual carriageway bridges, and the third applying to what are referred to as neighbouring or parallel road sites. (2) It is important to note that the third risk assessment tool [“the neighbouring site risk assessment tool”] was not in terms limited to roads maintainable at public expense. It applied to any road which runs either parallel to or adjacent to a railway line. It identified specific risk factors to be individually scored, including the relative level of road and rail, the nature and extent of the separation between the two, and the adequacy of any existing containment between the two such as barriers or kerbs, the speed and volume of road traffic, site specific hazards, road traffic accident history, and factors relating to the railway such as line speed and type and volume of rail traffic. All were scored and the total was then calculated to give a figure, with the possible range being from 13 to 159, according to the subsequent RAIB report at ¶38.(3) Chapter 4 gave guidance in assessing the scope for treatment. It estimated that 95% of the risk would occur at sites scoring 100 or more, where average expenditure of £45,000 might be justified. At the next level, between 90 and 100, it recommended that such sites should be investigated further, although only relatively low cost improvements were likely to be justified. Further guidance in deciding how much to spend was given in section 1.4. In short, it stated that sites where containment was clearly inadequate and the probability of injury to train occupants was high were likely to score over 100, so that serious consideration should be given to building an appropriate safety fence there. Other sites scoring less than 100 might also warrant some treatment. In order to assess the appropriate level of spend by reference to the estimated maximum funds available for “all road / rail sites” – estimated to number some 8,500 nationally, it produced a table setting out the indicative spend per site according to the risk scoring bracket it fell into. It also provided a mitigation spreadsheet giving approximate costs for various improvement works, including the provision of a “low level safety barrier” at an approximate cost of £100+ per linear metre.(4) Chapter 2 sets out a protocol for apportioning responsibility and the cost of improvements as between railway controllers and highways authorities. In short, it was for the highways authority to risk assess, and for works to be undertaken by the railway controller where rail improvement measures were required and by the highways authority where road improvement measures were required, and for the cost of the works to be shared equally. There is a note at the end of this chapter making it clear that it applies only to roads maintainable at public expense. The note continues as follows:
“Railway infrastructure providers may wish to use it as the basis for negotiations with those responsible for roads and bridges that are not maintainable at public expense …”
. This note is consistent with the introduction, where the protocol is “commend[ed] to other authorities as a model when considering what might be required on the infrastructure for which they are responsible”.[60]In his witness statement Mr Bell said in clear terms that it was his belief that the DfT report had no application to anything other than public highway sites. That view was accepted by the claimant, because Mr Prynne adopted that analysis in his opening, and in cross-examination contented himself with asking Mr Bell why it was limited to public roads in comparison with the HSC report, which was not, receiving the answer that his understanding was that it was because the DfT was really only interested in the risk from public roads, given its direct responsibility for funding the Highways Agency and its indirect financial responsibility through direct grant funding for local highways authorities, whereas in contrast it had no financial interest in expenditure on private roads or private land.[61]However, as will be seen from the analysis which I have undertaken, in fact on a proper reading of the DfT report it is only chapter 2, the protocol, which is in terms expressed to be only applicable to public road sites. The introduction does not state that it is intended to apply only to public road sites. Importantly, chapter 3 is not expressly limited in its application to public roads. True it is that one finds references in chapter 3 to the involvement of the highways authorities in the process, which would of course not be the case in relation to private roads, but there is nothing in my judgment in that chapter and, importantly, in the risk assessment tools themselves, which renders them inapplicable to private roads. I agree that the tools are not intended in their express terms to be applied to private land where there are no roads as such, but equally there is nothing in them which in my judgment would prevent them from being applied so as to risk assess private land used by road vehicles, for example a car park.

Steps taken by Network Rail in relation to the HSC report and the DfT report

[62]In June 2003 Network Rail produced a guidance note entitled “road vehicle incursions: risk assessment of bridge and neighbouring sites” [“the Network Rail risk assessment standard”]. This is one of a number of formal standards promulgated by Network Rail, pursuant to a process explained by Mr Bell in his evidence.[63]It is, in short, Network Rail’s own guidance in relation to conducting the risk assessment scoring exercise and in assessing the scope for treatment of higher risk sites, in accordance with the DfT report. In the same way as the DfT report there are separate risk assessment tools for single carriageway bridges, dual carriageway /motorway bridges and neighbouring roads, which are in substantially the same if not identical terms as those in the DfT report. It is however made clear in ¶3 that this only applies to “public road overbridges and neighbouring sites”. Although a lawyer might argue whether “public road” qualifies both overbridges and neighbouring sites, it is clear from section 5 which deals with neighbouring sites that it is envisaged that the process will involve Network Rail and the applicable highways authority, and it is clear that the process is not intended to apply either to private roads or land or to involve private landowners.[64]It defines “higher risk sites” as those scoring 90 points or more where, pursuant to ¶6.3, the approach would be to re-assess those sites to determine what if any steps should be taken to mitigate the risk, starting with the highest scoring site, substantially in accordance with the guidance given in the DfT report.[65]In his witness statement Mr Bell had explained (at ¶36-37) that whilst the original plan had been to complete the process (in relation to public road sites) by 2007, in fact there had been some delay in implementing the programme of scoring and mitigating sites, but that as at December 2012 the position was that over 10,000 sites had been risk assessed, 1,200 identified as requiring remedial measures, of which 450 were still outstanding. In cross-examination he was asked why the job was so well behind target. He explained that it was due primarily to funding difficulties being experienced by the local highways authorities, and that the delay was primarily affecting not those sites scored at 100 or over but those scored at between 90 and 99, which were assessed as medium risk.[66]What however Mr Bell was unable to explain, because it was outside his area of responsibility or knowledge, was what if any decision making process had been undertaken by Network Rail in relation to private sites prior to December 2008. Network Rail has produced no documents evidencing any such process and, in particular, what if any consideration had been given, or decisions made, as to whether, and if so how, to implement any of the HSC recommendations in relation to private sites. Network Rail has not called any witness who could shed any light on that issue. When I drew this to Mr Drake’s attention in closing submissions, he frankly acknowledged the point, and was unable to explain why not. He suggested that I could properly infer from the evidence as a whole that a conscious decision had been taken to prioritise public road sites, for the reasons to which I have already referred and that, as stated by Mr Bell, the point had still not been reached where the process in relation to public roads was complete. I do not however consider that I am able to make a positive finding to that effect from the evidence before me. If anything the more likely conclusion from Mr Bell’s evidence is that Network Rail assumed that all it needed to do to comply with the HSC report and the DfT report was to undertake risk assessment and mitigating measures in conjunction with highways authorities in relation to public road sites alone. However I am not prepared to make a positive finding to that effect either given that Mr Bell is not, as I have said, someone who is able to speak to this point by reference to his responsibility and knowledge.

The June 2008 risk assessment of the UPS depot car park

[67]I turn now from general matters to the particular circumstances relating to the UPS depot and the accident. I refer first to the June 2008 risk assessment. I should say that there is no documentary or other evidence of any earlier risk assessments, although it would appear unlikely that there was no previous risk assessment, particularly given Mr Bowskill’s evidence that it was UPS policy to risk assess every 3 years or so.[68]This assessment was produced on 19 June 2008 by an assessor identified as John Pickles of Sypol Limited. Sypol is a specialist H&S consultancy, with whom UPS had an established relationship. Mr Bowskill explained that the reason Sypol was engaged to undertake this risk assessment was that at that time he did not have sufficient in-house staff to inspect and risk-assess all of UPS’ UK depots, so that this task was contracted to Sypol who, he said, risk assessed all of UPS’ UK depots in the course of 2008.[69]The assessment is produced in a standard UPS format, and identifies separately a number of activities relating to car parking and the hazards associated with each activity, gives a risk rating for each activity by reference to the likelihood (of occurrence), the severity (of harm) and the level of risk, and then identifies the controls required to address such identified risks. It identifies 4 activities as posing hazards, of which two relate to the risk of collisions as between vehicle and pedestrian and as between vehicle and vehicle respectively. The controls include specific provisions for reducing pedestrian / vehicle collisions, in particular “enforced speed limit of 5mph in place” and “directions and road traffic warnings signs provided”. It is not immediately obvious at least to me whether or not this is recording controls which are already in place, or advising further controls which need to be implemented; it would appear to be the former but it is not clear. What is however relevant for present purposes is that the risk of vehicle incursion onto the railway line for whatever cause was not identified as a hazard of vehicle related activities on site and nor therefore were any controls identified as being present or required in relation to any such hazard relating to such activities.[70]UPS did not call Mr Pickles as a witness. No explanation was provided as to why not. Although the independent contractor defence was not pleaded or raised in terms either in the defence or in opening or closing submissions, Mr Wilkinson did cross-examine Mr Hopwood on the basis that UPS had instructed Sypol, as an apparently reputable company, to undertake this assessment. At trial I enquired whether or not the claimant would in due course seek to contend that Mr Pickles was a witness who UPS could and should have called, and invite me to draw adverse inferences against UPS because of the failure to call him, in accordance with the principle summarised by Brooke LJ in the Court of Appeal in Wisniewski v Central Manchester HA [1998] 1 PIQR 324 at p340, in order to give UPS the opportunity to explain his non-attendance if so advised. Mr Prynne confirmed that the claimant did not intend to invite the court to draw any such inference. I would not in any event have been prepared to draw any such inference. Mr Pickles is not, and never has been, a UPS employee and this is not as case, unlike Wisniewski, where it must have been obvious to UPS that they would need to call Mr Pickles to deal with the allegations made in relation to this particular assessment. The claimant’s case is that the risk should have been identified and addressed by all those involved on UPS’ side with knowledge of the depot and expertise in risk assessment. It would therefore include not only Mr Pickles but also Mr Bowskill, who admitted he had previously visited the depot from 1995 onwards, and who also said that he would have been responsible, in conjunction with his line manager, for deciding whether or not the risk assessment was suitable and sufficient.[71]Whether I should conclude that the risk assessment was not suitable and sufficient is something which I shall have to consider later in this judgment.

What happened on 18 December 2008

[72]It is not in dispute that when Mr Gilman entered the depot he did not follow such one way signs as may have been visible at that time, and instead drove in along the vehicular passageway alongside the railway boundary, and then entered the rear yard. I am satisfied that he did so because this was, as he says, his first visit to the depot, and also because it was dark and wet so that he did not see such signs as there may have been. There were it appears from the CCTV record two UPS vehicles already parked alongside each other facing the railway boundary, and he obviously decided to park in line with them. His arrival and parking can be seen reasonably clearly from the CCTV, although not everything can be seen in complete detail. What the CCTV shows is that within seconds Mr Gilman can be seen exiting the vehicle and within a very short time thereafter, possibly within a second, the vehicle started to move from its parked position towards the railway boundary. It appears to take around 6 seconds to cover the distance to the railway boundary, where it can be seen to disappear through the fence and away from view. Within 20 seconds Mr Gilman can be seen to re-appear and follow the vehicle through the fence. The first collision appears to occur within 4 minutes of his disappearing from view.[73]Mr Gilman accepted in cross-examination that, although he “always” applied the handbrake when parking the vehicle, he must have forgotten to do so on this occasion. He also accepted that he did not leave the vehicle, which was an automatic, in park mode, and that he left the keys in the ignition.[74]He was asked in cross-examination whether he might have left the engine running and the vehicle in drive, as opposed to neutral, mode (for those unfamiliar with automatic vehicles they tend to have a drive, neutral, park and reverse mode). He believed that he did not do either of those two things, but again he fairly accepted that he could not positively recall either way. He did however have a recollection of having to start the engine when after he had followed it down to the railway line he attempted to move it from the line. In re-examination he confirmed that if the vehicle was left in drive it would move forward almost immediately, and that this would be noticeable.[75]In closing submissions Mr Wilkinson invited me to find that Mr Gilman had left the car with the engine running and the vehicle in drive mode. In support for that submission he relied on a number of matters, including:(1) His submission that the CCTV showed the vehicle moving almost as soon as Mr Gilman left the vehicle.(2) His submission that the CCTV, consistent with an analysis of Mr Atkinson’s statement, showed the progress of the vehicle to be relatively rapid – if one assumes 20m covered in 6 seconds that would indicate an average speed of 6mph.(3) His submission that Mr Gilman could not positively recall not having done so.(4) His submission that even if Mr Gilman did have to start the vehicle when he got down to the railway line, and he may well have been mistaken about that, it could have stalled at any point previously.[76]The relevance of these submissions was two-fold: first that if so then it made Mr Gilman’s admitted negligence worse than if he had merely left the car in neutral and with the handbrake off; second that it provided a plank for an argument that if Mr Gilman had in fact parked not on the slope but on level ground behind, then the rolling forward occurred not because of the slope but simply through the vehicle being left in gear, so that any danger due to the presence of the slope would not have been causatively relevant.[77]Mr Prynne submitted that these were findings I should not make. He submitted that the evidence is equally consistent with Mr Gilman leaving the car in neutral and with the handbrake off since – as he submitted – the evidence from the CCTV is not really sufficiently clear to make a precise finding about just how soon after Mr Gilman exited the car it started to move, nor to enable a clear assessment to be made as to the distance from the vehicle to the fence and thus as to where the vehicle was parked, nor as to undertake anything like a precise assessment of vehicle speed. He submitted that what one could see was just as consistent with the vehicle being left on the slope, and moving off through force of gravity. He also submitted that it was unlikely that the vehicle being an automatic would stall if left in drive mode.[78]He also submitted that the latter finding urged on me by Mr Wilkinson was not consistent with the pleaded case, which does not in terms positively assert this as a case, but I do not regard this as a good point and, in fairness to Mr Prynne, it was raised more as a riposte to Mr Wilkinson’s own pleading point, to which I shall refer, than as a substantive point in its own right.[79]On the balance of probabilities I am satisfied that Mr Gilman did not leave his vehicle with the engine running or in drive mode. I regard the following points as substantial and determinative points in his favour on this issue.(1) It is in my judgment inherently unlikely that someone like Mr Gilman who, I accept, was not a habitually reckless driver or in any real urgency, would leave his vehicle not only without applying the handbrake, selecting park, or removing the keys from the ignition, but also leaving the engine running and – more significantly - leaving the vehicle in drive.(2) It is also in my judgment extremely unlikely that Mr Gilman, had he left his vehicle with the engine running and the gear in drive, would not – during the time it would take to open the driver’s door, exit the vehicle, close the door and walk down along the side of the vehicle – have observed that the vehicle was moving forwards, as it would I am satisfied do relatively quickly had it been left with the engine running in drive, even if on a level part of the yard.(3) The evidence relied upon by Mr Wilkinson, primarily from an analysis of an admittedly not very clear CCTV recording and Mr Atkinson’s statement, which I cannot read as being intended to be precise, is not sufficiently clear for me to make the clear findings that he urged upon me.(4) Mr Gilman’s case is supported to some extent by his recollection of having to start the vehicle again on the railway line and Mr Prynne’s point about an automatic being less likely to stall, although I do not place very much weight on this point in itself.(5) Neither the subsequent Network Rail internal report nor the RAIB report, to which I refer next, suggested that this is what happened. Also, so far as I have been made aware there was no prosecution of Mr Gilman for any vehicle driving offence, which there might well have been had it been thought there was evidence to indicate that he had left the vehicle in drive mode.[80]Accordingly, I am satisfied that Mr Gilman’s negligence was limited to his leaving the vehicle in neutral, with the handbrake not applied. It follows, I find, that he did leave the car on the slope down to the railway boundary. It is possible that the fact that he parked up and exited so quickly, perhaps also because he slammed the door shut, perhaps also because the ground was wet, led the vehicle to begin to move forwards relatively quickly and, of course, momentum would then carry it forwards with increasing speed down the slope.

The Network Rail formal investigation report

[81]For present purposes I need not dwell on the details of the collisions and losses sustained. Insofar as relevant, I can refer to them when dealing with the outstanding quantum issues. I can move on directly to the reports which followed the incident being, in chronological order, the Network Rail formal investigation report dated 3 March 2009 and the RAIB report dated December 2009. The claimant invites me to place reliance on them as identifying risks which should have been foreseen before the incident and steps which should also have been taken before the incident. The defendants argue that these are reports which, self-evidently, consider the position with the benefit of hindsight and not with the purpose of seeking to identify legal fault for acts or omissions pre-dating the incident.[82]The first in time was the Network Rail formal investigation report dated 3 March 2009. It is, as I understand it, an internal report. It traverses much of the same ground as later covered by the RAIB report. Points relevant to this case are as follows:(1) It identified the immediate cause of the accident as being Mr Gilman’s failure to secure his vehicle, and an underlying cause as being UPS’ failure adequately to control or mitigate the risk from its access and parking arrangements to the railway.(2) It recommended that Network Rail consider using part of the neighbouring site risk assessment scoring tool as found in the Network Rail risk assessment standard, and elements incorporated into the Network Rail fencing standard (which was a formal standard entitled:
“Management of fencing and other boundary measures” produced in August 2008, with Dr Strong being the chair of the working group which produced it) as part of a programme to risk assess and score the vehicle incursion risk from private sites, with a view to “reminding” the landowner in appropriate cases of their duty to use the land safely and correctly and without interfering with the railway. It is clear from the consultation response from Network Rail at p40 that they were unimpressed by this suggestion, commenting that there could be a “very large volume of work for little benefit”
. The response said that this was matter for review by the National Recommendations Review Panel.[83]It also provided details at ¶G4 of the only 2 reported incidents of unattended vehicles rolling onto railway lines in (it appears) the most recent 2 year period, where on closer examination it found that only one (being a car owned by an office cleaner at a rail depot who had left the handbrake off so that it had rolled onto a low speed goods line) had actually ended up on a railway line, and in neither case was there any vehicle / train collision or injury.

The RAIB report

[84]This investigation was carried out by the RAIB for the DfT, in accordance with statutory requirements. It is, as I understand it, a public document.[85]It identified the 4 causal factors as including:(a) the vehicle being left inadequately braked;(b) the gradient in the slope causing it to roll away;(c) the boundary fence being unable to prevent its incursion onto the railway. It also recorded the gist of what Mr Stanway had said in his police statement, although the report inaccurately identified him as a UPS employee, and there is no indication that RAIB had checked the accuracy of his statement with UPS. As I have already found, in fact there was no history of previous rolling incidents at the deport.[86]In ¶56 it stated, in a passage upon which the claimant relies, that neither the DfT risk scoring tool for neighbouring sites nor the subsequent Network Rail version “considers the requirement to assess the risk of vehicle incursion from adjoining private land, so the foreseeable risk of incursion from the UPS depot was neither identified or assessed”. In ¶57 it suggested that they could be applied for use for that purpose and that, the RAIB having done so, they assessed the UPS depot as having a score of 105, details of which were given in the completed assessment at Appendix A.[87]In his witness statement Mr Bell had stated that, had he been undertaking a risk assessment in relation to the UPS depot on that basis, he would only have scored it as 99. The two reasons given for the difference were:(1) unlike RAIB he does not allow anything under traffic incident history, because he discounted the history of previous rolling incidents accepted by RAIB based on Mr Stanway’s police statement;(2) the length of the railway boundary for the depot only (and excluding the access road) is less than 100m, whereas RAIB scored it as if it exceeded 100m. In my judgment both those amendments are justified on the evidence before me. More importantly perhaps, they would also in my judgment have been justified had anyone attempted to undertake this exercise prior to the incident in question, given that I am satisfied that no-one conducting the exercise would have even come into contact with Mr Stanway or otherwise have been referred to any history of previous rolling incidents.[88]Mr Bell did however also accept that the risk scoring exercise is to some extent a subjective exercise. Thus he acknowledged that his other scorings were not all the same as those given by RAIB. For example he had scored item f6 lower than had RAIB, because he did not believe that being a car park was in itself a site specific hazard. He was also prepared to accept however that the 90 degrees left turn from the north boundary to the railway boundary – which he considered was the riskiest part of the site, and where the traffic barrier has now been located – could have resulted in a higher score on item f4.[89]In such circumstances my own view is that the most likely result, had the Network Rail neighbouring site risk assessment scoring process been undertaken prior to the incident, is that it would have been scored 99, i.e. the score given by RAIB but deducting what I consider to be the 2 clear errors identified by Mr Bell. I cannot exclude the possibility that it might have been scored at 100, or even at 98, or even another point or perhaps two either side, but the most likely score, I am satisfied, would have been 99.[90]The claimant also relies on a passage at ¶59 where, considering the June 2008 risk assessment, they say that because the risks arising from vehicle incursion were not identified “this foreseeable risk was not assessed”. In the conclusions, the failure by UPS to identify the risk of vehicle incursion and the failure by Network Rail to consider the risk of vehicle incursion from this adjoining private land are identified as “underlying factors”.[91]RAIB made a number of safety recommendations, including that:(1) UPS should assess the risk of vehicle incursion and make arrangements to eliminate or reduce the risk by placing a barrier at the railway boundary sufficient to prevent vehicle incursion (¶74.2); and(2) Network Rail should: (a) establish a method of identifying private sites with a high risk of vehicle incursion; (b) liaise with private landowners, the HSE and local authorities to secure the improvement of those sites by those responsible for them (¶73.3). These are in short the things which the claimant says UPS and Network Rail should, respectively, have done before the incident.

Implementation by UPS of the RAIB recommendations

[92]The question of UPS’ compliance with the RAIB recommendations was the subject of some investigation at trial. This was not surprising from a forensic viewpoint, because the claimant did have some fertile ground for submitting that the way in which UPS responded post-accident indicated that they were unlikely to have responded any better had they been asked to consider the same or similar recommendations if made before the incident. I am far from convinced that this is really a relevant question, because I am not concerned with assessing what UPS (or Network Rail for that matter) would actually have done had they identified the need to assess the risk of vehicle incursion respectively from and onto their land at this location, but what a reasonable body in the position of UPS or Network Rail would have done in such circumstances. Nonetheless, because the events were explored in evidence, I shall refer to them in I hope enough detail to enable my findings to be clear should they be necessary findings to make.[93]It is common ground that UPS was provided with a copy of the RAIB report. It is also common ground that Mr Gale conducted a further risk assessment at the North Rode depot, which was the subject of a written risk assessment dated 1 February 2010. This was the subject of some exploration in evidence, understandably from the claimant’s perspective since:(1) it also contained no identification of vehicle incursion onto the railway line as a hazard, notwithstanding what had happened in December 2008;(2) subsequently, as a result of pressure from Dr Walker, a further risk assessment was conducted in April 2010 which, according to the face of the document was undertaken by Mr Gale but not, according to his evidence, actually by him, where that risk was identified as a hazard, and controls to address it were set out as including the “provision of barrier at high risk point along railway boundary”.[94]In short, the chronology is that Dr Walker visited the depot on 4 February 2010 and met with Mr Bowskill and Mr Gale as well as with Mr Hodge the site manager and another UPS employee. It is clear that she was told that UPS did not have any plans to provide a vehicle barrier along the railway side, and that the explanation she was given is that there was a dispute between UPS and Network Rail as to who was responsible for that being done. She was not prepared to accept that and, therefore, prepared and served Improvement Notices dated 17 February 2010 which required amongst other things a suitable barrier to be provided by 16 April 2010. She visited site again on 7 April 2010 and was told that matters were in hand, and again on 15 April 2010 when the company asked for an extension of time for compliance. She agreed, and by the time of her final visit on 3 August 2010 she was satisfied that UPS had complied with all of the RAIB recommendations, including the installation of a low level vehicle barrier along the north end of the railway boundary and, thus, had complied with the Improvement Notices.[95]In short, the position as it emerges from the evidence in my judgment is as follows:(1) Mr Bowskill saw the RAIB report and discussed the recommendations with his manager, a Mr Ruane. They both disagreed with the RAIB recommendation insofar as it clearly mandated a predetermined outcome to the risk assessment, namely placing a barrier at the railway boundary sufficient to prevent vehicle incursion onto the track. Nonetheless it was necessary to undertake the further risk assessment, and he instructed Mr Gale to do so because by that time Mr Gale was the safety specialist for that area.(2) Mr Bowskill did not provide Mr Gale with the RAIB report, nor did he specifically instruct Mr Gale to consider or address the RAIB recommendations in his risk assessment. Indeed although Mr Gale was aware of the incident he was not aware of the RAIB recommendations, other than perhaps at a very general level. Mr Gale said that he was asked to inspect the site and form his own opinions when producing the risk assessment, although he knew that it would be considered by others. I am satisfied by comparing the June 2008 and the February 2010 risk assessments that he did exercise a fresh judgment, although I am also reasonably satisfied that he would have known what Mr Bowskill’s opinion was in relation to the risk of a further occurrence of vehicle incursion onto the railway line and that this would, at least to some extent in circumstances where he had little direct experience at the time and been trained by Mr Bowskill as his immediate superior, have influenced his own views.(3) Mr Gale produced the risk assessment report. It was approved by Mr Bowskill. His evidence was that their view was that the risk of further vehicle incursion onto the railway through the fence was “totally unlikely”, and not sufficiently significant to need to be covered in the risk assessment report.(4) Following however the service of the Improvement Notices the legal department became involved and a decision was taken by UPS, at a higher level than Mr Bowskill, to accept Dr Walker’s view and, therefore, to implement the measures identified in the Improvement Notices rather that appealing them, as UPS would have been entitled to do.(5) A new risk assessment was therefore required to complete the relevant documentation. Mr Bowskill said in his statement that it was made “purely as a result of the request [as he accepted in cross-examination, this should really read Improvement Notice] from the HSE, as it was not considered to be a risk prior to the incident in December 2008 or thereafter”. I am quite satisfied that it was not Mr Gale who undertook it. It may have been Mr Bowskill or, possibly, his manager. In any event, I am satisfied that it did not represent a change of view by Mr Bowskill, but merely a grudging acceptance of the position as forced upon him by the HSE and UPS at a higher level.(6) It is clear from Dr Walker’s evidence, and I accept, that there was some foot dragging by UPS in implementing the recommendations. However having also heard the UPS witnesses I am satisfied that this was not due to some general culture of indifference, but because initially Mr Bowskill, Mr Gale and Mr Ruane believed it was not necessary, or at least that it was not necessary for UPS to undertake the work (which is what I think explains the references to there being an issue as to whether UPS or Network Rail were liable to undertake this work), whereas subsequently but after some delay they were overruled and the Improvement Notices were complied with. Implementation by Network Rail of the recommendations in its internal report and in the RAIB report[96]This was also the subject of considerable exploration in evidence, but again and for the same reasons I deal with it relatively briefly. It is relevant in my judgment only insofar as it reflects the practicability of undertaking the measures which the claimant contends Network Rail should have taken pre-accident.[97]Network Rail, as it was required to, produced a written response to the RAIB recommendations. The version I have is dated 12 October 2010. It is clearly an updated version, and the alterations can be seen from the document itself. It was produced by Mr Tim Kersey who, according to Mr Bell, was at the relevant time in effect the head of civil engineering at Network Rail. So far as I am aware he is still in that position, but he was not called as a witness by Network Rail on the basis, according to Mr Drake, that evidence as to implementation of the post–incident recommendations was not relevant to the issues in this case.[98]In short, Network Rail accepted the recommendation that it should establish a method of identifying private sites with a high risk of vehicle incursion. It rejected the recommendation that it should liaise with private landowners, the HSE and local authorities to secure the improvement of those sites by those responsible for them, on the basis that it could not enforce compliance by the relevant landowner, but it did agree to “develop guidance and revise existing standards to describe appropriate liaison with private land controllers, the HSE and local authorities to highlight the need for work to those responsible for the identified sites”.[99]In relation to the approach which Network Rail said it would undertake, the position as relevant is as follows:[100]Response (a). This was to adopt the Network Rail neighbouring site standard to assess vehicle incursions from private land. Mr Bell accepted in cross-examination that this had been undertaken in relation to those private sites which have thus far been scored. Mr Bell explained that the scoring tool had been used without amendment on the basis that it enabled Network Rail to compare public roads and private sites on an equivalent risk assessment basis and, thus, to enable spending to be properly prioritised as between the two categories of site. It follows, in my judgment, that Network Rail cannot say, had it wished to, that it was impracticable to apply this method which, it will be recalled, was promulgated internally in June 2003, to private land.[101]Response (b). This was to amend the June 2003 standard to include vehicle incursions from private land. Although not irrelevant for present purposes, all that this would do would be to formalise the process already adopted under recommendation (a). As it transpires, Mr Bell explained that he had made a start on this but, in the absence of progress on amending the fencing standard at the same time (see response (i) below), was unable to make progress because both sets of amendments needed to be undertaken in parallel with each other so that they meshed together. He said that after some delay he had been told by Mr Kersey that those responsible for implementing Network Rail’s response to the RAIB recommendations had decided not to continue with the revisions to the fencing standard, so that he was effectively instructed to stop on work on this.[102]Response (c). This was to undertake a “coarse filter / first stage risk assessment by national review of GIS Global information systems and mapping tools in order to identify vulnerable sites for vehicle incursion between Jan – March 2011”. This may therefore be referred to as an initial “desktop” risk assessment. So far as this is concerned, Mr Bell’s evidence was that so far as he was aware there had been no attempt to implement this recommendation. His understanding, which he made plain was no more than that, was that Mr Kelsey had been looking to recruit a graduate as an employee to undertake this specific task, but that this had not happened. He had no knowledge as to why it had not happened, or what if anything was proposed to take this matter forward.[103]In fairness to Network Rail I do not ignore the sheer scale of the task. As Dr Strong confirmed in evidence, the position is – as stated in the HSC report - there are some 20,000 miles of operational railway lineside It appeared from Dr Strong’s evidence that this may mean 10,000 miles of operational railway line, with equivalent length lineside boundaries on either site, but the difference does not matter for present purposes. . On any view of the matter, conducting a risk assessment of such a length of railway boundary, even undertaking a desktop exercise using GIS / mapping data, is a formidable task. However, on the evidence before me it appears that no progress at all has been made on this front. Since from Mr Bell’s evidence the scoring process has been undertaken on some sites, I can only assume that some other method has been adopted. I would venture to suggest that one obvious way to start a desktop study basis would be to identify as potential high risk sites, using GIS / mapping data, the points at which main railway lines run through cuttings adjacent either to private roads or car parks or other areas of hardstanding to which vehicles have access, although I am all too conscious of my own lack of expertise in this area. Regardless of the result of this case, I would urge Network Rail to revisit its response to the RAIB recommendation.[104]It is clear from the evidence in relation to recommendation (c) that recommendation (e), to apply a detailed risk assessment using the parallel tool to the vulnerable sites identified by the desktop study, has not been carried through in the form envisaged nor, so far as I am aware from the evidence, has recommendation (f) (to complete the risk ranking of sites by mid 2012) or recommendation (g) (to flag scores above 90 as sufficient risk to seek mitigation, and scores over 100 as high risk). Recommendation (h) I can pass over.[105]Recommendation (i) is for the fencing standard to be amended to provide for the regular lineside inspections, provided for by the standard to check the condition of railway boundary fencing, to be extended to include an additional check for high risk locations. Dr Strong’s evidence was that no progress had been made in relation to amending the fencing standard. According to Dr Strong the recommendation had been considered by the relevant Network Rail review panel but a decision had been taken not to carry it forward, but he was unable to explain why. It appears from a comparison between the original and the updated version of this document that the original intention was to use the lineside inspections as the first coarse filter, but that this was dropped in favour of the GIS / mapping data option which of course, as I have said, now seems to have stalled. I should however record that Mr Bell accepted in cross-examination that extending lineside inspections, to identify high risk vehicle incursion private sites, was at least in his view a practicable step to take. The recommendation to use negotiations about the grant of further land rights as a lever to mitigate the risk of future vehicle incursion[106]I have not thus far identified one further recommendation in the internal Network Rail report, to the effect that one way private landowners could be persuaded to undertake improvements would be to exert pressure when negotiating new or renewed land rights, such as the licence over the access road in this case. Mr Clarke’s evidence was that Network Rail made no attempt to use the negotiations with UPS in relation to the grant of an easement over the access road as a lever to persuade UPS to install a vehicle barrier along the railway boundary. However this recommendation and the negotiations to which he refers appear largely to postdate the accident, and there is no evidence of any negotiations pre-dating the accident. D. THE CLAIMANT’S APPLICATION TO RE-AMEND THE PARTICULARS OF CLAIM[107]In closing submissions Mr Wilkinson argued that the way in which the claimant was now seeking to put its case as against UPS was materially different from its pleaded case, and it should not be permitted to deviate. In response Mr Prynne disputed that the claimant was advancing a case which was not pleaded but, if he was, he should be given permission to amend, and he produced a draft re-amended Particulars of Claim [“RAPC”] to that end. Mr Wilkinson opposed the application to amend, so that it is necessary for me to rule on these issues.[108]The existing allegations of breach as against UPS are to be found in paragraph 11. It is the first pleaded allegation which is at the heart of this case and which raises the issue which divides the parties. It pleads that UPS:
“(a) failed to identify or assess, adequately or at all, the risk of road vehicle incursion from the car park onto the railway. The claimant avers that the risk of a vehicle which was inadequately immobilised when parked on the relevant part of the car park that sloped towards the perimeter fence and railway line, rolling towards and through the chain link fence and down the adjacent railway embankment onto the busy main line was and should have been clear and obvious to persons charged with the responsibility on behalf of UPS of carrying out a proper risk assessment of UPS’ premises, as required by the Management of Health and Safety at Work Regulations 1999 (“1999 Regulations”), and to pay heed to the [DfT report] following the train and vehicle collission and consequent derailment at Great Heck of which as a transport undertaking UPS either was or should have been aware.”
[109]Mr Wilkinson submits that this allegation, consistently with the other parts of the existing pleading, is directed solely at the risk of the kind which actually happened in this case [“the rolling risk”], and does not refer to or rely upon an allegation that UPS ought also to have been aware of other reasonably foreseeable circumstances which might lead to vehicle incursion through the perimeter fence and down onto the railway line. He also submits that the evidence served by the claimant, including the expert report of Mr Hopwood, all related solely to this rolling risk, until shortly before trial, when the claimant served an additional witness statement, that of Dr Walker, which was only made on 23 June 2013. That was relevant only in that in ¶¶15 - 16 she said that when she visited site she gave consideration not only to the content of the RAIB report but also the shape of the site and:
“16. Vehicle movements along the northern boundary around to the western boundary were more likely to be sharper and I considered that this change of directions may have increased the risk of a vehicle breaching the boundary.”
[110]However, submitted Mr Wilkinson, this reference to an additional source of risk of vehicle incursion was not taken up either in the draft list of issues submitted by the claimant or in its written opening submissions, which still referred only to the rolling risk. He also submitted that no reference to other risks of vehicle incursion were made in Mr Prynne’s oral opening submissions, but in his reply Mr Prynne contested that, and it is true that in his oral opening Mr Prynne, when referring to the hazards identified in the HSC report (see ¶56(3) above), submitted that UPS should have foreseen any risk of a vehicle travelling through the fence, which could arise in many different ways as identified in the report, such as:(1) losing control whilst turning the bend to the railway boundary;(2) an unintended loss of control;(3) swerving to avoid a pedestrian;(4) a collision with another vehicle. He referred to the well known case of Hughes v Lord Advocate [1963] AC 873 – as he had done in his written opening – in support of his argument that it was not necessary for UPS to foresee the precise mechanism or concatenation of events to be liable.[111]In cross-examination Dr Walker confirmed what she had said in ¶16 of her witness statement. Mr Prynne cross-examined Mr Bowskill and Mr Bell in relation to the risk of vehicle incursion associated with losing control whilst turning the bend, and whilst Mr Bell agreed Mr Bowskill did not, but it was not until Mr Hopwood’s cross-examination that he gave his view as to the wide range of possible causes of vehicle incursion consistent with the oral opening.[112]The draft RAPC seeks to add the following as an additional sub-paragraph 11:
“(i) For the avoidance of doubt, the claimant avers that reasonable foresight on the part of UPS did not require UPS to foresee the precise concatenation of events that led to this accident. Reasonable foresight, in the circumstances of this case, in law, require no more than that UPS should have reasonably foreseen the risk of vehicle incursion, by whatever means, from the western part of the depot onto the railway.”
[113]Mr Wilkinson’s complaint was that it would be unfair to allow this new case to be advanced at trial without there having been proper warning or application to amend at the outset, and in circumstances where none of the evidence which UPS had adduced was intended to do other than address the alleged rolling risk. He accepted that he had not objected to Mr Prynne cross-examining as he did, but submitted that there should be no criticism of him in not intervening at that point, when it was not clear at that point that the claimant intended to develop this as a new case. He submitted that the existing paragraph 11(a) did not advance a case other than by reference to the rolling risk, and that even the proposed amendment did not really express the proposed new case clearly because it, like the Hughes v Lord Advocate case itself, is directed to reasonable foreseeability of damage in the context of causation of damage, rather than as an allegation that what UPS should reasonably have foreseen was a wider range of circumstances which might lead to vehicle incursion and which, thus, was directed to the magnitude of the foreseeable risk and hence to liability rather than to causation. He submitted that had UPS been aware that this point was going to be taken it would have considered adducing evidence in relation to these further alleged risks, from Mr Bowskill and all of the other witnesses whose evidence was read who dealt only with the absence of any previous history of rolling incidents, from Mr Mottram its expert, and from the transport manager.[114]Mr Prynne responded that on a proper analysis there was no real evidence of prejudice. He accepted in terms that I would have to decide the case on the basis that there was no positive evidence that there had ever been any previous history at the depot of events such as might have led to vehicle incursion in the alternative ways which he now propounded. He submitted that in those circumstances it was really a matter of submission and decision by the court as to whether or not these other risks were real risks which ought to have been reasonably foreseen, and that Mr Wilkinson could scarcely suggest that UPS might have instructed Mr Mottram to address the point when it was clear from Mr Mottram’s sole report and his contribution to the joint report that he was unwilling to offer any retrospective opinion on the correctness of the June 2008 risk assessment, and in circumstances where Mr Wilkinson had decided not to call him as a witness, taking his stand on his submission that this was a matter for the court not for expert evidence.[115]I have also been referred to, and I bear in mind, the principles referred to in the cases cited in the current edition of the Supreme Court Practice in relation to amendments. In particular I bear in mind the decision of the Court of Appeal in Swain Mason v Mills & Reeve [2011] EWCA Civ 14, where it was emphasised that late applications to amend require extremely close scrutiny and strong justification, for there are wider considerations in play than mere presence or absence of prejudice, particularly where there is any risk of an adjournment of a trial, and also that in order for permission to be granted the proposed amendment must be clearly and properly formulated.[116]There are clearly powerful arguments both ways here. My conclusion is that I should permit the amendment, for the following reasons:(1) First, whilst I accept that the existing paragraph 11(a) does not on a proper analysis plead the risk specifically other than by reference to the rolling risk, nonetheless it does plead in general terms the risk of vehicle incursion from the car park onto the railway.(2) Second, therefore, this is not a new case which is very significantly different in nature and extent from that already pleaded, unlike (for example) the new case which was sought to be advanced in the Swain case itself. It is really doing no more than clarifying the breadth of the existing allegation of breach.(3) Third, although I do consider that the proposed amendment in paragraph 11(i) is perhaps not as clear in identifying the further point which the claimant wishes to argue as it might be, being more obviously directed to the Hughes v Lord Advocate causation point than the anterior breach point, I consider that read with paragraph 11(a) it is sufficient to make clear that the claimant is contending that the risk of vehicle incursion from other means and not just rolling is also being contended for as risks which UPS ought to have been aware of and taken into account. This was made absolutely clear by Mr Prynne in his submissions on the point, so that there is no question of UPS or its advisers being in any way unclear as to what is now sought to be argued by the claimant.(4) Fourth, it is clear that by the time the case was opened orally UPS would have known that the claimant was seeking to rely on the other risks, including that identified by Dr Walker and those referred to in the HSC report. Mr Bowskill and Mr Bell were cross-examined without objection on this point and, whilst I do not criticise Mr Wilkinson for not objecting at the time, the position is that the evidence was adduced, whatever its relevance (see (7) below).(5) Fifth, in the circumstances of this case I make it clear that I place no reliance on Mr Hopwood’s views, and I am also satisfied that UPS would not have sought to adduce contrary evidence from Mr Mottram on the point, so I am satisfied that there is no prejudice to UPS there.(6) Sixth, UPS is not prejudiced by the loss of any opportunity to adduce factual evidence in relation to these other risks, because I make it clear that I proceed on the basis that the claimant has not established that there is any previous history at the UPS depot of circumstances in which any of those other risks actually materialised.(7) Seventh, and perhaps most importantly, the ultimate question in this case in relation to what risks were reasonably foreseeable pre-accident and thus what was the magnitude of the risk against which any reasonable precautions should have been considered is ultimately one of inference from primary facts which are not seriously in dispute and which in any event, insofar as relevant, I have determined in UPS’ favour. It follows that I do not consider that UPS is prejudiced in its ability to deal with the point so far as evidence or submission is concerned. There is clearly no question of an adjournment at this stage. If there is any prejudice it can only arise if I find against UPS on this new pleaded point, which can be compensated for in costs. Whilst I accept that absence of prejudice is not decisive, in the circumstances of this case I consider that the overriding objective supports allowing the claimant to take the point, rather than shutting it out. E. THE CLAIMANT’S CLAIM AGAINST UPS[117]I have already referred to paragraph 11(a), which should now of course be read with the new paragraph 11(i). I should also say that the claimant acknowledges in paragraph 11(g) that breach of the 1999 Regulations does not give rise to a civil cause of action in relation to loss or damage not suffered by employees of UPS (see regulation 22), but contends that it is entitled to rely on UPS’ alleged failure properly to perform its risk assessment obligations under the 1999 Regulations in support of its case in negligence.[118]Paragraphs 11(b) – (d) inclusive plead that UPS failed to risk assess the suitability of the chain link fence to restrain vehicle incursion, and failed to erect either a suitable crash barrier such as that now present or some other suitable barrier such as a kerb, a bund or a sufficiently robust fence.[119]Paragraph 11(e) pleads a failure to heed previous rolling incidents, relying on the police statement of Mr Stanway, which allegation now falls away given the findings I have made.[120]Paragraph 11(f) pleads a failure to sign and mark out the rear yard so as to prevent vehicles from parking in the area which sloped down to the railway boundary. This allegation has not featured in the case as it has been advanced at trial, but it has not been formally abandoned and thus is still a live allegation on the pleadings.[121]Finally, paragraph 11(h) is a general “catch all” allegation of failing to take reasonable care.[122]As presented at trial, the case against UPS may be summarised as follows:(1) As occupier of the depot UPS owed a common law duty of care to those operating the railway line adjacent to the depot, to those operating trains on that line, and to those travelling in trains on that line, to take reasonable care to consider and assess the nature and extent of any foreseeable risk of loss and damage arising from hazards relating to the nature of and user of the depot, including hazards relating to the presence of vehicles on its premises, and where appropriate to remove such risks or to minimise them to acceptable limits.(2) UPS ought as a reasonably careful occupier to have foreseen that there was a real risk of vehicle incursion from its depot through the fence on the railway boundary and onto the railway line, with the consequential risk of collision with a train using the railway line and thus very serious consequences, given the number of trains using the line and the speed at which they travelled. Even if UPS as an organisation could not necessarily have been expected to know of the post Great Heck reports and recommendations, Sypol as a safety consultancy should have been.(3) Those risks would have been reasonably foreseeable to UPS by reference to the nature of its site and, in particular, the interface between the depot and the railway line, the slope in the yard down to the railway boundary, the lack of a substantial barrier to vehicle incursion, and the steep drop on the other side of the railway boundary down to the railway line. Further, by reference to the user of the site, the risk was not just a risk of parked vehicles being left on the slope without proper immobilisation, but also loss of control of vehicles generally, in particular at the point where vehicles leaving the depot would need to make a left turn from the north boundary to the railway boundary, for any number of reasons such as careless driving, swerving to avoid another vehicle or pedestrian, or black ice.(4) In relation to the risk assessment process, although the claimant accepts that the duty imposed by the 1999 Regulations does not impose a statutory obligation on UPS enforceable by those using the railway, it contends that if UPS had performed that duty it would have foreseen the risk and appreciated the need to take reasonable steps. In that regard the claimant also refers to the HSE publication “Workplace transport safety: an employer’s guide”, published in 2005, which provides guidance over 143 pages in relation to the risks from vehicles in the workplace. The claimant relies in particular on the fact that it makes specific mention of the need to foresee and guard against the risk of vehicle driver error, and also the risk of parked vehicles rolling on even quite gentle slopes if not properly immobilised, suggesting that vehicles “should be parked on firm and level ground”.(5) In deciding what if any measures to take to mitigate these reasonably foreseeable risks, UPS had to consider factors such as the magnitude of the risk, the seriousness of any harm should the risk materialise, the practicability and cost of remedial measures, and any disadvantages of undertaking those measures.(6) Here, says the claimant, the installation of a low level vehicle barrier would have been an obvious precaution to take which was both practicable and not unduly costly by reference to the figures given in the DfT report (the claimant notes that UPS has failed to provide any evidence as to the actual cost of installing the barrier which it installed in 2010). Although the claimant accepts by reference to Mr Hopwood’s evidence that UPS could not reasonably have been expected to be aware of the HSC report or the DfT report, it does rely on his evidence to submit that Sypol should have been. Furthermore, although the claimant accepts the dangers of applying hindsight, it relies on the fact that the RAIB report regarded the risk as foreseeable, and recommended that UPS should install a crash barrier along the railway boundary, and the fact that its view was shared by Dr Walker and ultimately accepted – however reluctantly – by UPS.(7) In relation to causation, the claimant relies on the calculations in Mr Hopwood’s report to show that had the crash barrier been installed before the accident, it would have contained the vehicle and thus prevented the vehicle getting onto the railway line. The claimant also submits, relying on the decision in Hughes v Lord Advocate, that even if the court concluded that the risk which should have been foreseen and guarded against by the installation of a crash barrier was the risk of vehicle incursion generally, rather than the risk of vehicle incursion through inadequately immobilised vehicles rolling down the slope in particular, that is sufficient to ground recovery.[123]UPS’ defence may be summarised as follows:(1) It does not challenge the proposition that as occupier of the depot it owed a duty at common law to those operating and using the adjacent railway to take reasonable care to prevent the state of its premises becoming a source of danger of them. It does however contend that the duty of care does not extend to the circumstances of this case where, on its case, the incident occurred because of the negligence of a visitor carrying out an innocuous activity, where the prospect of that negligence occurring was no more than a possibility, as opposed to a reasonable probability. It relies on two decisions of the House of Lords: (a) Muir v Glasgow Corporation 1943 SC (HL) 3, where the defendant was held not liable to children visiting its premises, burned by tea spilt from a tea urn being carried by visitors to those premises, for failing to ensure that the children were kept out of the way. It was held that there was no element of danger reasonably to be anticipated from the activity of carrying the tea urn, that negligence on their part in carrying the tea urn was a mere possibility not a reasonable probability, and that the defendant was not effectively an insurer from any risk of danger. (b) Smith v Littlewoods Organisation [1987] 1 AC 241, where the defendant was held not liable to adjoining occupiers for a fire started by vandals in its disused premises. It was held that the question was whether or not the occurrence of such behaviour was reasonably foreseeable, and that on the facts of that case it was not. Lord Mackay of Clashfern said that the more unpredictable the behaviour in question, the higher the degree of probability of such behaviour occurring would be necessary to find that such loss was reasonably foreseeable.(2) It contends that the risk of vehicle incursion was neither clear nor obvious, given: (a) the absence of any previous incidence of vehicles rolling down to the slope to the railway boundary or of losing control for any reason and colliding with the fence or worse; (b) the gentle gradient of the slope, and the absence of any reason to assess the risk of drivers leaving their vehicle without the handbrake as being anything other than minimal; (c) the fact that vehicles were not driving at speed in close proximity to the railway boundary, so as make the risk of loss of control and consequential vehicle incursion anything more than theoretical.(3) There is no reason to criticise the conduct of the risk assessment undertaken by Sypol as a reputable and competent safety consultancy in June 2008, nor its approval by Mr Bowskill. It identified the foreseeable risks from vehicle use at the depot, and indicated sensible control measures. In contrast, the view taken by RAIB after the incident was coloured with hindsight and a perfectly understandable desire to improve rail safety, regardless of whether there was necessarily any legal obligation on UPS to do so, as was the view taken by the HSE in the person of Dr Walker. The opinion of Mr Hopwood, insofar as reliable, suffers from the same vice. Whatever Sypol may have known about the post Great Heck reports, they had nothing to do with the risks from this site as a private depot and in any event Sypol’s knowledge cannot be imputed to UPS.(4) By reference to the case as advanced against Network Rail, if it was necessary to risk assess the site by reference to the criteria set out in the DfT report, it appears from the evidence of Mr Bell that this site would not have been assessed as a high risk site and, thus, there would have been no warrant for requiring UPS as its owner to undertake the costly activity of installing a crash barrier, whether along the whole length of the railway boundary or only along the north end of it as is now the position. UPS relies on Mr Bell’s evidence in cross-examination to the effect that if one was risk assessing, as on the claimant’s case one would have to, the risk of vehicles up to and including the size of a large HGV travelling at some speed directly at the railway boundary, one would have to design the crash barrier to be able to withstand that impact, and that this would require a very substantial barrier, not just the low level barrier identified in the DfT report and as actually installed.[124]Mr Wilkinson also submitted that to hold UPS liable in this case would establish a very wide-ranging potential liability on every private landowner of land. Thus, he submitted, if the risk in this case was the risk of uncontrolled vehicle movement down a modest slope to a railway line, why should not the same risk apply just as much to any private site where uncontrolled vehicle movement down a modest slope would result in a vehicle entering onto, for example, a public road, or indeed any place where person or property would be liable to damage if struck by that vehicle? He submitted that the answer was that the level of risk in such cases was not of sufficient magnitude to require mitigating measures to be undertaken, and that if such an incident did happen, not only would it be rare but the person whose person or property was injured would – as in this case – be able to obtain financial redress from the vehicle insurers of the vehicle driver whose negligence had caused the accident.[125]In response to UPS’ reliance on Muir and Smith, the claimant contends that neither lay down any principle of law in any way determinative of this case. In both cases the question was simply whether or not the prospect of the visitors in question to the premises acting in such a way as to create a danger to others was reasonably foreseeable, and in both cases the answer on the facts of those cases was that it was not, because it was only a mere possibility. In this case, in contrast, submits the claimant, the prospect was more than a mere possibility, because of the particular features of the site (particularly the slope and/or the sharp turn to the railway boundary), and because the risk of negligent behaviour by vehicle drivers (both invitees and employees) was reasonably foreseeable, as indicated by the HSE guidance.

My decision in relation to the claim against UPS

[126]There is no dispute as to the existence in principle of a duty of care, only whether it extends or applies to the circumstances of the present case. In my judgment the duty of care owed by an occupier such as UPS is in principle capable of extending to dangers arising out of the acts or defaults of third parties visiting the depot, whether as employees, sub-contractors, licensees or even trespassers, and even when such dangers arise from normally innocuous activities, such as driving or parking vehicles. However whether or not such a duty arises on the facts of a particular case will depend on the particular facts as found. In a case such as the present the court should proceed on the basis that an occupier is not without more liable for the negligence of an invitee which causes damage to persons or property on adjacent land, particularly where that licensee is engaged in an activity not dangerous in itself such as driving or parking a vehicle, which he might be expected to do carefully. If however the occupier is or should reasonably be aware of a reasonably foreseeable of risk of danger to persons or property on adjacent land due to the activities of that licensee, even if engaged in a normally innocuous activity, then the occupier will be under a duty to consider the magnitude of the risk, the practicability and cost of mitigating measures, and any other relevant circumstances, and to undertake such mitigating measures as are in all the circumstances reasonably required of the occupier.[127]The first question therefore is what ought UPS as a reasonably careful occupier to have foreseen as to the dangers of the use of the depot, specifically in this case the rear yard. In this respect I accept that regardless of its duties under the 1999 Regulations UPS ought, as a reasonably careful occupier, to have applied its mind to the question as to whether and if so what dangers might be present.[128]The obvious risks of the use of the rear yard would be the risks of collision between vehicles, and between vehicles and pedestrians, of the type identified in the June 2008 risk assessment. That was obviously a risk, and it can be said with some justification that the absence of a clearly signed one way system and speed limit, and the absence of clearly defined visitor, staff and work vehicle parking areas, vehicle circulation areas and pedestrian areas would have increased that risk. However, as against that, the open areas surrounding the buildings were reasonably spacious and reasonably open with good views, and the depot was not a particularly busy depot, so that UPS would have been entitled to assume that the risks, though present, were not particularly high, as evidenced by the lack of any history of such collisions.[129]What about the presence of the slopes in the back yard? My view, as I have said, is that the slope down to the loading bay is obvious, whereas the slope down to the railway boundary is not unless one is looking for it. In my judgment a reasonably careful occupier might consider that the slope down to the loading bay might increase to some modest extent the risk of collision in that area between loading vehicles reversing down to the loading bay and any vehicle or pedestrian in its way, because it might increase the risk of unintended reversing. I do not however believe that the reasonably careful occupier would have considered the presence of the slope down to the railway line as presenting any such significant danger, whether of an increased risk of collision or otherwise. I accept that such a person would be aware that there is always a risk of parked vehicles being inadequately immobilised, whether through inadvertence or perhaps vehicle error, and rolling away as a result. I also accept that such a person would be aware of the presence of the slope behind the fence down to the busy main railway line below and also, had he applied his mind to it, the fact that the fence was not particularly sturdy. However, I consider that the reasonably careful owner would also have in mind:(1) the fact that such rolling incidents are not common occurrences either in themselves or as causes of collisions, notwithstanding that vehicles are obviously parked on slopes the length and breadth of the country day in day out;(2) the fact that the slope in this location is relatively gentle and localised;(3) the absence of any reported rolling incident;(4) the presence of the fence, particularly with its concrete posts, which forms some barrier to onward movement down the slope, as does the vegetation, particularly the trees, behind it. In my judgment the combination of those circumstances is such that the reasonably careful occupier would not have considered the presence of that slope to constitute a significant danger either to those using the rear yard or to those using the railway line below.[130]I bear in mind that although UPS cannot of course disclaim any knowledge at all of matters relevant to the user of the railway line, it cannot be treated as having the same knowledge as Network Rail in that regard. In particular, although UPS as a reasonable occupier of the depot ought in my judgment to have been aware (as I am sure it was) that the depot was adjacent to the busy West Coast main line, used regularly by high speed trains, where the railway line ran in a cutting with a sharp drop down to the railway line from the railway boundary, I do not think that it ought also to have been aware of the contents of the HSC report or the DfT report. Mr Hopwood accepted as much, and I do not think that UPS can be judged by the standard of a specialist safety consultancy even if, which I do not accept, all such consultancies ought to have been aware of those reports. Even more fundamentally, the Great Heck incident and thus the HSC report and DfT report were not primarily directed to the risk of accidental rolling incidents from unoccupied vehicles; they were primarily directed to the risk of vehicle incursion by vehicles, being driven at speed and/or with insufficient care, from the road and onto a railway line.[131]That brings me onto the wider risk of vehicle incursion from the rear yard onto the railway line from other reasons. As I have already said, I accept that the risk of collision would have been foreseeable, although relatively modest for the reasons I have stated. Ought a reasonably careful occupier to have foreseen a significant risk that a collision at or near the railway boundary could lead to a vehicle breaching the boundary fence and plunging down the slope? Such a risk was, I accept, theoretically possible. However, again, I do not think that it was reasonably foreseeable as a significant risk. There are four principal reasons for that conclusion:(1) There was no particular reason to expect collisions at that location, being some way distant from the buildings and the loading area.(2) The only particular reason to expect a loss of control was the turn left from the northern boundary to the railway boundary. However that would not have been expected to be a very sharp turn executed immediately adjacent to the railway boundary. The natural tendency would be to take a more gentle turn, further away from the corner, and there was no impediment to so doing.(3) Even if there was a collision or a temporary loss of control at this location, there was no particular reason to believe that this would lead vehicles to travel on through the fence and down the slope to the railway line. Thus: (a) there was no reason to expect that they would be travelling at such speed, or so close to the railway boundary, as to be unable to stop before, or at least slow down or steer away from, the boundary; (b) even had they breached the railway fence, it was by no means obvious that they would not have been able to stop before or steer away from the railway line; (c) the risk of such a vehicle being in the control of a driver who had lost consciousness, as suggested by Mr Hopwood, was obviously theoretically possible but no more than that, in my view.(4) The absence of previous occurrences of a similar nature over an extended period of use of the depot by vehicles of all types, with (for example) no reports that there was a tendency for black ice to form in that location in severe weather conditions tends to show that these risks were all more theoretical than real.[132]When considering the above matters I do not ignore the fact that the authors of the RAIB report and indeed Dr Walker considered that these were risks of such magnitude as to require remedial action, or indeed the fact that UPS ultimately decided to install the crash barrier rather than to appeal the Improvement Notice. However, I consider that the authors of the RAIB report and Dr Walker were obviously affected by hindsight and, also, by their long involvement in and experience of H&S issues particularly, in the former case, on the railways. Once something has been shown to have occurred, it is obvious that the risk will present as more significant than before, when there was no history of it having occurred. There is a natural disinclination to recommend that nothing need be done, particularly where if lightning was to strike twice with more devastating results there would be a huge outcry. If all that was required to guard against that risk was to require UPS, as a substantial organisation, to spend a relatively modest amount on a crash barrier at a small corner of its site, then it is easy to see why both the RAIB and the HSE should have proceeded down that path. It is also obvious to see why in the end UPS should have decided for any number of reasons, financial and PR included, not to seek to contest the Improvement Notice and to comply. None of this however, in my judgment, shows that before the accident the risk was reasonably foreseeable as a substantial risk against which substantial precautions need be taken.[133]This brings me onto a further question which is, assuming I am wrong and a reasonably careful occupier would have foreseen that the risk was sufficiently significant to consider taking some mitigating measures, whether that occupier would have concluded that the proportionate response was to install a crash barrier along the railway boundary with the rear yard? I do not think that without the benefit of hindsight the answer is an obvious “yes”. Thus although it would have seemingly prevented this particular accident and also, it would appear, a collision at an angle by a vehicle losing control when making the sharp left hand turn posited by Dr Walker, it may well not have contained a large HGV striking it head on at speed. Thus even taking that step would not necessarily have reduced the risk to zero. More significantly perhaps, it will be remembered that Mr Hopwood in his report clearly had some reservations about the cost justification for the crash barrier measure, suggesting alternatives such as a tree line, kerb or earth mound. I can well see that if a reasonably careful occupier had considered for example the sharp turn risk to be sufficiently significant to require some attention, he might well have decided that simply marking out a more gentle turn away from the corner, coupled perhaps with a kerb, perhaps of reclaimed railway sleepers, would have sufficed. However clearly the former by itself would not have prevented this accident from occurring, and there is no hard evidence that the latter would have done so either. I appreciate that this is to some extent speculation, in particular in circumstances where neither the claimant nor UPS has adduced any satisfactory evidence as to the actual cost of the crash barrier or as to the cost or efficacy of potential alternatives (I do not regard Mr Hopwood’s report as meeting that standard in relation to his discussion of the alternative measures). However taken overall the evidence does not demonstrate in my judgment that the claimant has made out the case pleaded at ¶11(c) or (d), namely that any risk assessment must on the balance of probabilities have led to UPS as a reasonably careful occupier taking one or more steps which would on the balance of probabilities have led to this accident being avoided. Thus this is not, in my judgment, a case where it can be said that there was a very obvious risk, which required a very obvious step to be taken, which would very obviously have avoided any accident, including this one.[134]Finally I should mention the case pleaded at ¶11(f), that the depot should have been better signed and marked. In my judgment this case cannot assist the claimant, because the need for such measures relates to the need to minimise the risk of collision in the depot involving vehicles and/or pedestrians, not the need to minimise the risk of vehicle incursion. Thus even though it could have been argued that maybe Mr Gilman would not have ended up parked where he was had adequate signing and marking been in place, that would not have been because UPS owed a duty to rail users not to allow him to park there because of the risk of vehicle incursion and damage to them. Thus, in legal terms, there would not have been any breach by UPS of any duty owed to rail users and in any event there would not have been a sufficiently clear causal connection between the breach and the incident to enable the claimant to recover, even applying the Hughes v Lord Advocate principle.[135]For all of those reasons, in my judgment the claim against UPS fails. F. THE CLAIM AGAINST NETWORK RAIL[136]The claim against Network Rail is pleaded as follows.(1) In ¶12(a) the claimant pleads that it failed to identify or to assess the risk of vehicle incursion from the car park down to the railway line, whether in accordance with the 1999 Regulations or the DfT report recommendations. In ¶12(c) it identifies the risk factors which should have been taken into account, and in ¶12(d) it contends that the risk assessment if carried out would have shown the site to be high risk.(2) In ¶12(b) the claimant pleads that thus a risk assessment would have indicated the need for Network Rail to take measures to prevent vehicle incursion, such as a suitable barrier on its side of the railway boundary (¶12(e)), or other suitable measures such as a ditch, bund or kerb face (¶12(f)).(3) In ¶12(g) the claimant pleads that Network Rail failed to liaise or consult with UPS to facilitate the performance of a risk assessment and mitigating measures, and in ¶12(h) it is pleaded that NRL failed to enforce compliance as a condition of any lease or licence with UPS through which UPS occupied the depot.(4) Finally, in ¶12(i) the claimant pleads that Network Rail failed to put in place a system for UPS to give rapid warning of any vehicle incursion.[137]I can deal with some of these allegations relatively shortly. Thus:(1) The allegation in ¶12(i) is not pursued, for the obvious reason that less than 5 minutes elapsed between the vehicle incursion and the collision, and when there is no evidence that any time saved by this measure being implemented would have made any difference.(2) The allegation in ¶12(h) cannot succeed, because on the evidence Network Rail does not have and never has held any interest in the UPS depot under which it has granted a lease or licence to UPS. Although it could have been argued that Network Rail could have used the licence in relation to the access road as a lever: (a) that is not the pleaded case; (b) there is no basis for contending that either in 2003 when the licence was granted or at any time thereafter up to the date of the incident it was or should have been reasonably apparent to Network Rail that this was necessary or indeed appropriate; (c) in my judgment this is a pure hindsight argument, borrowed from the recommendation in the post accident Network Rail formal report.(3) The allegation in ¶12(e) cannot succeed because, as Dr Strong said in evidence, there was simply no suitable place where Network Rail could have installed a crash barrier on its side of the railway boundary behind the existing fence, since the ground sloped steeply down to the railway line from immediately behind the existing fence. No-one, Mr Hopwood or otherwise, has suggested in evidence that there were reasonably practicable measures that Network Rail could and should have taken on its side of the railway boundary which would have prevented this accident from occurring.[138]In closing submissions the claimant put his case against Network Rail as follows:(1) It owed a duty of care to those using the rail network in relation to the condition of that rail network and to the undertaking of its activities.(2) The risk of vehicle incursion onto railway lines from private sites was reasonably foreseeable, as apparent from the HSC report, as was the need for a programme of risk assessment, followed by an assessment of and undertaking of suitable mitigating measures, in relation to private sites as well as public roads. However Network Rail failed to take any action in this regard, notwithstanding that after the accident RAIB had recommended and Network Rail had accepted that it could and should be done. It would have been practicable to identify high risk sites from GIS and mapping information and/or from extending the ambit of the regular lineside inspections as already undertaken to assess the condition of boundary fences.(3) Had that process been undertaken, the UPS depot would have been identified as a high risk site in accordance with the RAIB scoring, so that the need for a crash barrier could and would have been identified, and could either have been installed on the Network Rail side of the boundary or by Network Rail requiring UPS to undertake mitigating measures, if necessary by contacting the HSE to request them to exercise their statutory powers as they subsequently did.[139]In its closing submissions Network Rail argued the following points:(1) It was not fair, just or reasonable to impose on Network Rail a positive duty to take action to mitigate dangers to those using its railway network, not from hazards arising out of the condition or use of its own premises, but from hazards arising out of the condition and use of adjoining premises, over which it had no control. Mr Drake submitted that it would be wrong to treat the recommendations made by the HSC and/or DfT before the accident, or the recommendations made by Network Rail itself or the RAIB after the accident, as justifying the imposition of a common law duty to act in accordance with those recommendations, when these recommendations were made by bodies with statutory responsibility for railway safety developing good practice guidance so as to enhance railway safety, as well as the safety of road users (being, as Mr Drake emphasised, the primary casualties of vehicle incursions onto railway lines).(2) In any event, the claimant has failed to establish that the risk of injury to the person or property of those using the railway network from vehicle incursion from private land such as the UPS depot was so significant as to justify Network Rail taking the steps which it contends for, or that the steps which the claimant contends for were either sufficiently practicable or effective to address that risk. Mr Drake submitted that the information contained in the various reports showed that the risk from vehicle incursions from private sites was extremely low, and far less significant that the risk from vehicle incursions from public roads. He also submitted that for Network Rail to establish a time consuming and expensive process of risk assessment of private sites as a class could not sensibly be justified where even if it identified a number of high risk sites Network Rail had no authority to undertake any remedial works on those sites, so that the best it could do would be to seek to identify the appropriate private landowner, persuade them to undertake the work, and report them to the HSE if they failed to do so. He submitted that this would be, in effect, a pointless duplication of the private landowner’s duties as occupier and (where appropriate) as employer, and of the statutory functions undertaken by the HSE.(3) Even if Network Rail was under an obligation to risk assess private sites, the claimant has failed to establish that a risk assessment undertaken at the UPS depot would have shown it to be high risk such as to justify immediate attention, or that any pressure which Network Rail could have exerted as a result of such an assessment would have resulted in UPS taking suitable measures which would have avoided the accident.[140]In my judgment points(1) and(2) should sensibly be considered together. This is because, as Mr Drake submitted, the question as to whether it is fair, just and reasonable to impose a duty of care on a defendant is not limited to the question as to whether or not there is a duty of care at all, but also to the question whether the situation gives rise to a duty of care of a given scope: Lord Bridge in Caparo Industries v Dickman [1990] 2 AC 605, cited by Lord Hope in Mitchell v Glasgow City Council [2009] 1 AC 874, at ¶26.[141]I agree with Mr Drake that the starting point is that it would be a strong thing to hold Network Rail liable in tort to users of its railway network for dangers created by (on the claimant’s case) a combination of the unsafe state of adjacent premises (the slope and the lack of a crash barrier) and the negligent activities of vehicle drivers on those adjacent premises (whether by carelessly leaving their vehicle inadequately immobilised, or driving carelessly), in circumstances where Network Rail had no direct responsibility for or control over either the premises, UPS as the occupier, or the drivers or their vehicles.[142]I also agree with Mr Drake that one cannot equate the recommendations of the HSC report, the DfT report, the Network Rail formal report or the RAIB report as in themselves justifying the existence of an equivalent duty of care, and that in relation to the latter two I should be wary about the risks of hindsight.[143]However I also agree with Mr Prynne that it is difficult in this case to assess what Network Rail actually decided to do, if anything, in relation to the risk of vehicle incursion from private sites prior to this accident, given the absence of any relevant documentary evidence and the absence of any witness evidence from anyone with direct knowledge of or responsibility for such matters.[144]In my judgment the starting point is to assess what Network Rail ought reasonably to have had in mind over the period from 2003 to 2008. I consider the following factors are relevant:(1) Network Rail was aware that the risk from vehicle incursion overall was small but not insignificant, and that the most substantial risk both to vehicle occupants and rail users was from vehicles leaving public roads, especially bridges over railway lines, where high speed or other driver carelessness was often the or a cause. Thus the risk from vehicle incursion from private land was in statistical terms really extremely small.(2) Network Rail was also aware that although both the HSC and the DfT were not positively advocating doing nothing in relation to private sites, the focus of their attention was very much pushing forwards a programme of risk assessment, ascertaining appropriate mitigating measures, and undertaking and funding them in relation to public road sites through an agreed process as between the railway authorities and the highways authorities. Network Rail was aware that the HSC had effectively provided no recommendations as to how and by whom the equivalent process in relation to private land should be taken forwards, and was fully aware of the difficulties involved in taking that process forwards. Network Rail was also aware that no-one else was demonstrating any particular interest in the process in relation to private land, whether the DfT in their overall responsibility for monitoring progress or anyone else such as the HSE or the relevant rail regulator.(3) Over the period from 2003 – 2008 Network Rail was engaged in the process in relation to public roads. Progress in relation to the high risk sites (scoring 100+) appears from Mr Bell’s evidence to have been reasonable, but progress in relation to the medium risk sites (90-100) much slower, primarily due to funding problems being experienced by the relevant highways authorities. Over this period there is no evidence of any reported vehicle incursions from private sites, other than the two identified in the post-accident report, and none leading to any collisions.(4) As against all this, Network Rail ought to have been aware that it was likely that there were at least some high risk private sites adjoining its rail network, and that no progress at all was being made in seeking to identify them. It knew that if the extremely small risk of a collision materialised the consequences could be horrific. It knew that if it did not do anything, the likelihood was that no-one else would, unless possibly some particular event occurred at a particular site which brought home the risk of vehicle incursion at that site to the private landowner and/or to Network Rail.(5) Furthermore, whilst Network Rail knew that even if it identified high risk sites it would have no authority to undertake works on adjoining land without the agreement of the landowner, nonetheless: (a) there might be sites where it would be possible to undertake appropriate safety measures on its own side of the boundary; (b) even if that was not reasonably practicable it could at least raise its concerns with the adjoining landowners, with some prospect at least that responsible landowners would be prepared to take some measures, either on the basis of applying the protocol agreed with the highways authorities or on some specific agreed basis. It must I think also be taken to know that if the landowner proved recalcitrant there was the option of involving the HSE who might in appropriate circumstances serve an Improvement Notice under s.21 of the Health and Safety Act 1974. Further, although since the point has not been argued I do not, nor need I, express a firm view on the matter, it might in extreme cases have been possible for Network Rail to bring proceedings seeking a quia timet injunction against the landowner requiring them either to take reasonable steps themselves to abate an apprehended nuisance or to allow Network Rail to enter onto their land to do so.[145]As I have said, I have received no evidence from Network Rail as to what it actually did over this period. I have heard evidence from Mr Bell that subsequently it:(a) at least considered appointing someone to conduct a preliminary desktop risk assessment process, but decided for unknown reasons – possibly funding – not to take that further;(b) initially accepted but then dropped – for unexplained reasons – amending the fencing standard to enlarge the role of lineside fence inspections to identity and report potentially high risk sites;(c) has conducted, on a basis which has not been explained in evidence, some risk assessments of private sites using the neighbouring site scoring tool. There is no explanation from Network Rail as to why none of these options were, seemingly, not at least considered or investigated from 2003 – 2008.[146]As I have also already said, I am unable to conclude given the absence of positive evidence from Network Rail about this that it took a conscious decision to defer taking any steps in relation to private land until the public road process was complete, or that it took a conscious decision not to take any steps in relation to private land because it concluded that there was nothing it could realistically or practicably do even if it identified high risk sites. There is no evidence that, for example, it simply did not have the budget to do any more or, that if it did, the budget would have to be diverted from other equally if not more important railway safety programmes.[147]I am satisfied that Network Rail did owe a duty of care to at least consider and investigate what steps it could practicably take in relation to private sites, and that at the very least this would have involved undertaking an initial feasibility study as to that point. In my judgment it would not be a sufficient answer for Network Rail to say, in effect, “it is not our problem or responsibility, it is solely the problem and responsibility of the private landowners, and anyway even if we were to undertake a risk assessment programme and identify certain high risk sites we could not realistically or practicably expect to achieve anything anyway, so there is no point in doing anything”. In my judgment, given Network Rail’s position as operator of the rail network, and its unique knowledge of the nature and extent of the risks to rail users from vehicle incursion from private land, and having regard to the HSC and DfT recommendations, there was sufficient prospect that it would be feasible to devise and implement some steps to identify very high risk private sites and then for some steps to be taken to mitigate the risks to rail users arising from those sites, that it would be fair, just and reasonable to require Network Rail to do something more than nothing.[148]Further, in the rather unsatisfactory circumstances as to the evidence adduced by Network Rail as to whether it actually did anything at all in that respect pre-accident, and bearing in mind that there is nothing in the Network Rail formal report or RAIB report which indicates that it did, I am unable to infer that it actually did do anything, and thus I conclude on the balance of probabilities that it did not.[149]That conclusion gets the claimant part of the way along the road it needs to travel. However, in order to succeed in establishing its pleaded case he needs to go considerably further. I am prepared to accept in the claimant’s favour, in the absence of evidence to the contrary from Network Rail, and given the way that it subsequently responded by accepting the RAIB recommendations, that if any such feasibility study had been undertaken it would have led to some programme being devised. I am confident that given the circumstances it would on a balance of probabilities have been limited, at least at first, to some form of desktop assessment, followed perhaps by some initial lineside inspection process to confirm sites which would justify a full neighbouring site risk assessment. I do not consider it probable that Network Rail would or could reasonably have been expected to proceed directly to risk assessing all private sites. Knowing that there are some 20,000 lineside miles to inspect, and knowing that there were estimated to be some 8,500 separate public road sites to assess, I can safely conclude that it would reasonably have been considered completely impracticable and inefficient to proceed direct to a programme of risk assessing every lineside private site without some provisional screening process.[150]I am also prepared to accept in the claimant’s favour on the balance of probabilities, again in the absence of evidence to the contrary from Network Rail, and knowing how the neighbouring site risk assessment process works, that the UPS depot would have been identified as one meriting a full assessment. That is because on any view it would have been identified as a non-agricultural site adjacent to a busy fast main railway line, with a steep slope from the railway boundary down to the railway line, with a hardstanding area used by vehicles adjacent to the boundary, and with no existing crash barrier or other equivalent barrier to vehicle incursion.[151]However, in my judgment the claimant’s case falls down at this point on three grounds. The first, which is derived from the findings I have made about the neighbouring site risk assessment process as applied to this site, concerns whether it would in fact have been assessed as high risk. The second, which is derived from my assessment of what actually happened after the accident and to what extent it was governed by hindsight, is whether even it had been assessed as high risk any steps would have been undertaken which would have resulted in a crash barrier being erected before the accident. The third, which I accept is inevitably a matter of speculation, concerns the timetable for such action.[152]So far as the first point is concerned, I need not repeat my findings as to the likely risk assessment score had Network Rail undertaken the exercise before the incident. I accept that it is hypothetical, and that the result is very close to 100. Nonetheless I am satisfied on the balance of probabilities on the evidence before me that it would not have fallen within the high risk category. Therefore, there would have been no basis for Network Rail to consider that it did require assessment for mitigating measures such as a crash barrier. I do accept that sites scoring over 90 should still in due course have been considered for mitigating measures. However, I consider it unlikely that given other demands on Network Rail’s time and finances that would have been seen as a priority in comparison to other rail safety issues, and I also consider that Network Rail could not have been found to be negligent had they taken a decision that addressing all 100+ private sites was sufficient in the circumstances to discharge its duty of care. In any event, even if I was wrong on that, the timescale for any such action must be considered in the context of the second and third points, to which I now turn.[153]These raise connected issues. I must proceed on the basis that what Network Rail should have done was to act with reasonable diligence in all the circumstances pertaining post the HSC and DfT reports. In that respect I consider that it would have been reasonably entitled to see how the public road process progressed, and to ensure that the high risk public road sites were attended to, before devoting significant time and resource to work on private sites. Once Network Rail had conducted an initial feasibility study, which I accept could have been undertaken concurrently with the public road programme, it would then have needed to devise and implement an initial desktop assessment, and then to devise and implement a process for risk assessment of the sites identified as being potentially high risk.[154]At that point it is quite clear in my judgment that Network Rail’s first step, and reasonably so in the circumstances, would have been to attempt to identify the landowners of the sites concerned with a view to writing an initial letter to them, advising that the site had been assessed as potential high risk, and asking the landowner to undertake a risk assessment and any necessary works at its own expense. It might also, for example, have attempted to prioritise sites by reference to landowners of a significant number of sites, such as local authorities, where some agreement along the lines of the protocol might have proved possible, and certainly worth exploring. Assuming that it would have written to UPS as part of this exercise, it is clear from UPS’ approach in 2010, and from Mr Bowskill’s evidence at trial, that UPS would not have considered that there was a risk which it was obliged to remedy, so that this would not have produced a positive result. Thus in relation to this site Network Rail would have had to include it in a programme of site specific risk assessment in relation to all sites identified as being potentially high risk where no satisfactory resolution had resulted from the initial communication.[155]Assuming at this point in the claimant’s favour that, contrary to my above finding, such a risk assessment would have showed the site to be high risk, Network Rail would then have needed to communicate that to UPS and requested it again to act. Again I am satisfied on the evidence that UPS would have declined to do so. Network Rail would then have had to consider whether it could or should act itself. I am satisfied that it could not have installed a crash barrier on its own steeply sloping land. It would thus have needed either to seek to persuade or if necessary compel UPS to install one on its land, either completely at its own cost or perhaps on a cost sharing basis, and if necessary either by involving the HSE or possibly through court proceedings. However I am reasonably sure that Network Rail would, when seeking to resolve these problem sites, have adopted the sensible policy of seeking to deal with the very high risk first, and then working downwards. Thus on any view this would have been one of the last to be reached, as being marginal on or around the 100 mark. Further, I very much doubt whether Network Rail would have been prepared to fund work on UPS’ land on a marginal site. Finally, I very much doubt that even if Network Rail had involved the HSE it would have been prepared to serve an Improvement Notice positively requiring UPS to install a crash barrier. There would have been no accident. There was no history of serious accidents from private land. There is no evidence of the HSE having served any equivalent Improvement Notices in comparable sites. This would have been viewed by the HSE as a marginal site. It is likely that if anything HSE would have been content with other less costly measures as part of a process for improving the layout (one way signs, speed limit signs, demarcated vehicle through areas etc). Even if it had served an Improvement Notice in such terms, it is quite likely that it would have been appealed by UPS, with an uncertain result.[156]Thirdly, it is I think clear that all this would have taken a considerable amount of time from start to finish. I appreciate that the accident occurred almost 6 years after the DfT report. Nonetheless, approaching this case without the benefit of hindsight, knowing that this accident did occur when it did, I find it impossible to be satisfied that the whole process could have been concluded by December 2008.[157]In reaching these conclusions I am aware that it involves a very significant degree of speculation as to what different persons and organisations would have done, and when, in necessarily hypothetical circumstances. However, the reason why this is necessary is because, as the case has proceeded, it has become obvious that the claimant cannot succeed against Network Rail on the basis that it could or should have erected a crash barrier on its land on what, even on RAIB’s flawed post accident risk assessment, was not the highest of high risk sites. Thus to succeed as against Network Rail the claimant has to persuade me to find that it should have taken steps at a “macro” level which would have been translated to this “micro” level in it successfully either persuading or forcing UPS, with or without involving the HSE, to install a crash barrier on its land. That inevitably requires the court to speculate as what would have happened and when, in hypothetical circumstances, and that is what I have had to do on the material before me.[158]In conclusion, however, and for those reasons, I am satisfied that the individual allegations made against Network Rail are either not made out or, insofar as they are made out, are not proved to have had any causative effect and, therefore, the claim against Network Rail must fail. G. THE ASSESSMENT OF AN APPROPRIATE CONTRIBUTION[159]This point does not of course arise for decision, given the decisions I have reached in relation to the claims against UPS and Network Rail. If however I had found against UPS and Network Rail on broadly the case advanced by the claimant, and if I was required to assess contribution under s.2 of the 1978 Act, by reference both to the degree of culpability of all parties and the extent of their responsibility for the damage in question, I would have assessed the claimant’s liability as being 60% and UPS’ and Network Rail’s respective responsibility as being 20% each. I do not consider that the claimant is right to contend that his share should be less because Mr Gilman’s fleeting negligence is to be contrasted with what he contends was UPS’ and Network Rail’s protracted systemic failings. On any view his conduct in leaving his vehicle without applying the handbrake or engaging park in an area with which he was unfamiliar and in the dark and wet was careless to a relatively high degree, and was by far the most substantial cause of the accident. H. NETWORK RAIL’S CLAIM OVER AGAINST UPS UNDER THE LICENCE[160]This issue also does not arise on my findings, so that again I can deal with it briefly. UPS raises two arguments:(a) it cannot on its proper construction apply to the claim in this case, because it does not arise in any way from the licence or anything done as a result of it;(b) it does not on its proper construction apply to claims where Network Rail is seeking an indemnity against its own negligence.[161]All that I need to say is that I agree with UPS on both of its arguments. Network Rail contends that the claim does fall within clause 4.2, because but for the licence Mr Gilman would not have been able to access the UPS depot and thus could not have left his vehicle where he did with the consequences which transpired. UPS argues that there is no sufficient nexus between Mr Gilman’s use of the access road to gain entry to the depot and what happened when he got there. I agree. In fact it goes further than that, because on this hypothesis Network Rail is seeking an indemnity against loss it is liable for because it failed to take reasonable steps to protect those operating and travelling in trains on its network by reference to the risk at the UPS depot, and it is plain and obvious that these failings cannot in any way arise from the licence or anything done as a result of it. As to the second point, whether or not the clause extends to cover Network Rail’s own negligence, I have been referred to the well known authorities and principles. It is a matter of construction of the individual clause in the context of the agreement in which it is set; one should not adopt an over formalistic approach requiring the word “negligence” to be used. Even on that basis however it seems to me that the references to “death or injury” and “in any way” are wide, but not wide enough, to make it plain that Network Rail is entitled to be indemnified for such losses when caused by its own negligence. I. NETWORK RAIL’S CLAIM AGAINST THE CLAIMANT[162]In the light of my findings it is clear that Mr Gilman is liable to Network Rail for their loss, agreed at £545,000 plus interest at 4% over the relevant period – according to Mr Drake’s opening note from 18 December 2008. J. QUANTUM ISSUES IN RELATION TO THE CLAIMANT’S CLAIM[163]None of the remaining quantum issues arises on my findings, and again therefore I deal with them briefly. The arguments were advanced by Mr Drake for Network Rail, but relied upon by UPS as well. The claimant’s submissions on these points were presented by Ms Canby. The four remaining issues are as follows:(1) Whether or not Mr Gilman can recover contribution for amounts paid to Northern Rail which have not been substantiated by evidence. He says that he can, because they are part of a settlement which overall is a reasonable one. The defendants do not dispute that overall the settlement was a reasonable one, but say that this is irrelevant; in order to recover contribution in relation to a particular head of loss it is necessary for the claimant to adduce evidence that the defendant would have been liable to the injured party for that head of loss, and if he fails to do so he cannot obtain contribution in respect of it. There are two heads of loss in issue here; the first is a claim for contract variations in relation to the repair costs to the damaged train, where it is accepted that Northern Rail was unable to provide any documents to evidence these contract variations, and the second is a claim for the cost of hiring a replacement train and fuelling it, where it is said that Northern Rail did not provide any evidence to support its case that the need for the hire flowed from the collision.(2) Whether or not Mr Gilman can recover contribution for legal costs paid to the individual claimants. Again there is no dispute as to their reasonableness, but the defendants contend that in a case such as the present, where Network Rail was never a party to any proceedings brought by the individual claimants, the court has no jurisdiction to order contribution in relation to those costs.(3) Whether or not Mr Gilman can recover contribution for legal costs paid to his own solicitors in defending and settling the claims made by the individual claimants. Again there is no dispute as to their reasonableness, but the defendants again contend that in a case such as the present, where Network Rail was never a party to any proceedings brought by the individual claimants, the court has no jurisdiction to order contribution in relation to those costs.(4) The rate of interest which the claimant is entitled to on the principal sum it claims contribution in respect of. It is agreed that the claimant is entitled to interest from the date(s) of payment, but the defendants submit that there is no basis for recovering more than the default commercial rate of 3% pa, whereas the claimant submits that it should recover the same 4% pa it has allowed Network Rail. The defendants however say that Network Rail was entitled to that rate because it had adduced evidence as to its actual financing costs, whereas the claimant has not done so.[164]I will deal with these points in turn. (1). The need for substantiation by evidence[165]Point (1) has led to a substantial argument between the parties as to what is required of the claimant in terms of proof of individual heads of claim where the claimant has made what is acknowledged to be overall a reasonable settlement with the party or parties to whom he is liable, on which issue I have received submissions and supplemental submissions.[166]The claimant relied on the decision of the Court of Appeal in Biggin v Permanite [1951] 2 KB 314, where as is well known the court held that in a contract chain case the claimant could recover as damages the amount of the settlement upon proof that the settlement was a reasonable one, and without the need to “examine every item” of the claim so settled. The claimant submitted that the same principle could and should be applied contribution claims, and referred me to Oxford University Press v John Stedman Design Group (1990) 34 Con LR 1, where HHJ Esyr Lewis QC, sitting as an Official Referee, applied the principle in Biggin to a claim for contribution under the 1978 Act.[167]In a detailed and thought provoking supplemental submission Mr Drake contended that this represented a wrong turn in the law, albeit that as he acknowledged the judge had in that case gone on to conduct a detailed examination of the quantum of the claim, which had led him to reach a decision which was clearly correct on the facts.[168]Nonetheless it appears to me that since OUP the judges of the TCC have followed the approach exemplified in that case in a good number of cases, without it seemingly being contended that it was wrong to do so. In those circumstances I do not think that it would be appropriate for me to undertake a detailed review of that point of law in the present hypothetical circumstances. I content myself with saying that in my judgment the approach in OUP and following cases appears to me to be both consistent with the wording of and intention behind s1(4) of the 1978 Act, and obviously sensible. I am prepared to accept, consistent with the requirement that the settlement be bona fide (s1(4)) and reasonable (Biggin), and in accordance with the necessity to award contribution only to the extent just and equitable (s2), that if the contribution defendant puts the contribution claimant to proof of the bona fides and reasonableness of the settlement, including discrete substantial heads of claim, then it will be necessary for the claimant to adduce evidence to show that the settlement overall, including where necessary that part relating to the individual heads of claim, was bona fide and reasonable so as to justify his entitlement to just and equitable contribution.[169]In this case, the position is that the overall settlement is not challenged as unreasonable, therefore and adopting that analysis I would have allowed the sums in full.[170]If however it had been necessary for me to consider the reasonableness of the individual items of claim, or the extent to which they were substantiated by evidence, then in my view the position is as follows:(1) In relation to the additional contract variations claim, I do consider by reference to the evidence of Mr Fillingham the loss adjuster involved that it was unreasonable to accept such a substantial sum without any documentary or other proof being provided. In effect, on the evidence, there was simply an assertion by Northern Rail’s loss adjuster without any evidence being provided or explanation as to why it could not be provided. In the context of substantial variations claims, where other variations claims had been documented, as one would expect, I do not consider that it was reasonable to accept those claims without more. Whilst I do not consider that it would have been necessary to obtain a witness statement (see(2) below), I do think that some explanation with some substantiation was required. That is particularly so when they were not even the subject of an expert quantum report or even a schedule attached to a Particulars of Claim verified by statement of truth. (2) In relation to the diesel train hire costs and extra fuel costs, these were identified and quantified and explained in the signed report from the forensic accountants instructed by Northern Rail’s solicitors. Whilst I accept that the report is not a formal CPR compliant expert report, and that there is no identification of the source of the instructions given, nonetheless I consider that in the context of this case that is sufficient substantiation, particularly since it could have been admitted as civil hearsay had the claim by Northern Rail been issued and proceeded to a hearing. (2). Whether or not the claimant could recover the costs which it has paid to the individual claimants[171]Mr Drake acknowledges that the decision of the Court of Appeal in Parkman Consulting Engineers v Cumbrian Industrials Ltd [2001] EWCA Civ 1621 is clear authority (albeit obiter on this point, and qualified by saying that it was the “present view of the court”: see ¶123) for the proposition that a claimant in contribution proceedings can recover such costs against the defendant. This and other decisions were considered by Ramsey J in Mouchel v Van Oord (UK) Ltd (No 2) [2011] EWHC 1516 (TCC), where he evidently reached the same conclusion: see ¶9-25.[172]Mr Drake contended that both could be distinguished on the basis that they were proceedings where the original claimant, the claimant seeking contribution (the claimant in the part 20 proceedings) and the defendant to the part 20 contribution claim were all parties to the same action, so that they could all be liable for the same “damage”, i.e. the liability to pay costs under s51 Senior Courts Act 1981.[173]Ingenious though this argument is, it suffices for me to say that it does not provide any sufficient basis in my judgment for distinguishing either Parkman or Mouchel, particularly when the latter decision is, if I may say so, so obviously clearly and carefully reasoned and does not suggest that this played any part in the process of reasoning, so that on that basis I follow both decisions and hold that the claimant would have been entitled to recover such sums in the contribution proceedings. (3). Whether or not the claimant could recover the costs which it incurred in dealing with the claims made by the individual claimants[174]This point was also considered by Ramsey J in Mouchel. On this point he held [¶53] that there was no basis for a contribution claimant to recover contribution in respect of his own costs of defending the main claim as against the contribution defendant. Ms Canby did not contest this, but she sought to rely in this case upon the court’s discretion under s.51 of the 1981 Act to obtain contribution, as was common ground before Ramsey J in Mouchel could be done in that case.[175]However, as Mr Drake submitted, that was because in that case the parties had all been parties to the same proceedings, so that it was common ground that the court had jurisdiction to allow those costs. That is not the position in this case. In short, I agree with Mr Drake, and hold that these costs cannot be recovered under s.51 in a case such as the present. I accept as Ms Canby submitted that this has the potential to generate unnecessary litigation and costs, since in a case such as this it would require the party in the position of Mr Gilman here to allow the individual claimants to bring proceedings so as to enable him to join the defendants as third parties to each such claim to establish the jurisdiction to recover his costs incurred in defending and settling the individual claims. However that difficulty cannot in my judgment justify an extension of s.51, so as to permit a contribution claimant to recover against a contribution defendant costs which had not been incurred in those proceedings, and to which the original claimant had never been a party. In any event, if the parties are sensible and sensibly represented, they can always agree either that such costs may be recovered as if a claim had been issued by the original claimant but without the need to do so, or if not and there are main and part 20 contribution proceedings underway in a number of cases, that the contribution proceedings in all cases should be tried together, so as to avoid unnecessary duplication of costs, which of course the court could always order even if the contribution defendant unreasonably declined to agree. (4). To what rate of interest would the claimant have been entitled?[176]I can deal with point (4) shortly. In short, I agree with Mr Drake’s submission. In order to recover more than the conventional commercial rate a claimant has to adduce evidence of his true loss by reference to the actual interest he either could have earned or has had to pay. The claimant has not done so and, hence, would have been limited to the commercial rate.

(K) CONCLUSIONS

[177]Given the conclusions which I have reached the claim against each defendant must fail. It remains only for me to thank all solicitors and counsel for their preparation and presentation of their respective cases.