No: B3/2001/9012

Neutral Citation Number: [2002] EWCA Civ 302

IN THE SUPREME COURT OF JUDICATURE                        

IN THE COURT OF APPEAL (CIVIL DIVISION)   

ON APPEAL FROM CARDIFF COUNTY COURT

(His Honour Judge Graham Jones)

                                                                                    Royal Courts of Justice

                                                                                    Strand

                                                                                    London WC2A 2LL

             

                                                                                    Friday, 22nd February 2002

B e f o r e:

 

LORD JUSTICE BROOKE

LORD JUSTICE ROBERT WALKER

LORD JUSTICE SEDLEY

 

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SUSAN DUNNETT

 

Claimant/Appellant

‑v‑

 

 

RAILTRACK PLC

Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0170 421 4040

Official Shorthand Writers to the Court)

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MR LEVENE (Instructed by the Bar Pro Bono Unit) appeared on behalf of the Appellant.

MR T LORD (Instructed by Beachcroft Wansborough) appeared on behalf of the Respondent.

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J U D G M E N T


 

Friday, 22nd February 2002

1.         LORD JUSTICE BROOKE: This is an appeal by the claimant, Susan Jane Dunnett, from the judgment of His Honour Judge Graham Jones in the Cardiff County Court on 1st December 1999, whereby he dismissed her claim against the defendant, Railtrack Plc, for damages arising out of the death of three of her horses on 17th June 1996 on the Swansea to London Railway Line near Bridgend.

2.         The claimant lives at a farm, Penyfai, which she and her partner rent along with a field adjoining the railway line. They keep horses for livery. There is an accommodation crossing across the railway line, although the land on the other side of the line is in separate occupation, and a gate from the field leads to the crossing. There used to be a wooden five‑bar gate there which fell into disrepair. This gate was replaced by Railtrack contractors, who installed a new iron gate shortly before the accident. The old gate was sprung in a way that it would close without the need for it to be properly shut. However, it was so stiff that it would barely open, and this caused a lot of problems. The new iron gate swung open much more easily, but it would not shut unless it was specifically closed.

3.         Railtrack workmen used to have access to the line along a track through the claimant's field. The claimant was keen that arrangements might be made whereby she was given a key to the gate, which would be available to Railtrack's men who passed her cottage on the way to the line. She thought that they would not have to suffer significant delay while calling for the key and that, if the gate was kept locked, children would desist from using the crossing, as had been their practice.

4.         The judge found that the only time when she or anyone acting on her behalf made a request of this kind to any representative of Railtrack was when the new gate was being installed. Two contractors' men brought the new gate to the site in a yellow van with drop‑down sides, which they parked by the gate to the claimant's yard. When they got out of the van they chatted to the claimant about her horses, and one of the men told her they were working on the gate. She commented that it was often left open, and she inquired if there was any chance of it being padlocked. The man replied that there was a legal requirement for them to have access to the line, and it would therefore be illegal to padlock the gate. It would not be feasible for there to be a key kept available for railway workers as well as for the claimant, because it might happen that the claimant would be out and the men could not gain access to the line. This would be illegal. After saying what an improvement the new gate would represent, he went off to do his work.

5.         On 17th June 1996, soon after the new gate was installed, the claimant put four horses out to graze in the field before 9.30 a.m.. Before she left she checked that the new gate was properly shut. When she returned at about 11.15 a.m. she found the gate wide open and three of the horses no longer in the field. They had strayed on to the railway line, where they had been struck and killed by an express train some way down the line. The claimant claimed not only £9,000, being the agreed value of the horses, but also damages for post‑traumatic stress disorder (PTSD). The Judge found that she had seen the mangled remains of at least two of her horses on the railway line in the immediate aftermath of the accident. After this incident the iron gate was replaced by a fence.

6.         It is necessary at this stage to say something about the way the claimant's case was developed. In the original particulars of claim dated 12th December 1997 seven allegations of negligence were made. The first two asserted that the defendants' servants or agents were negligent in that they had failed to take adequate steps to ensure that the new gate would shut automatically, and that they replaced the old gate, which had an automatic shutting device, with a new gate without such a device.

7.         Shortly before the trial, Judge Graham Jones conducted a pre‑trial review at which he directed the parties to file skeleton arguments. As a result, the claimant's former solicitors served on the court and on the defendants' solicitors a six‑page formal statement of the claimant's case. Under the heading “LIABILITY” appear two paragraphs:

“(a)The Claimant alleges that the Defendants, their Servants or Agents were negligent. The Claimant now relies upon paragraph 10(c) of the Particulars of Claim, supplemented by paragraphs 10(f) and (g) insofar as those paragraphs supplement 10(c). It is the Claimant's case that by indicating to the Claimant that it was illegal to allow gates to be kept locked, and/or failing to action the request that those gates be kept locked, the Defendant's Servants or Agents failed to comply with their duty of care to ensure the safety of the occupiers of the land adjoining the railway. Given the knowledge that the Claimant kept horses in the field adjoining the railway, and that the crossing was used illegally by inter‑alia, children, the failure to heed the Claimant's request was made worse. If the Servants or Agents of the Defendants' required the gate to remain available for use, a system should have been devised which would have enabled it to be used safely, such system allowing the gate to be kept locked except when in lawful use.

(b)Given the factors mentioned above, it was reasonably foreseeable that if the gate was not kept locked, it would be left open by those using it, and horses would then stray onto the railway line putting them at great risk. It is the Claimant's contention that the failure to lock the gate was the primary cause of the horses being killed, thereby giving rise to a claim in damages against the Defendant Company.”

8.         It follows that the defendant had notice before the trial started that the claimant no longer relied on the first two of her particulars of negligence in the particulars of claim to which I have already referred. Instead, her case was founded only on particular 10(c) of the particulars of negligence, supported to a certain extent in an ancillary way by particulars (f) and (g). Particular 10(c) reads:

“(c)Failed to heed the Plaintiff's request that the said gate be kept locked to prevent it inadvertently being left open.

(f) and (g) read:

“(f)Failed to pay any or any adequate heed to the presence of the Plaintiff's horses in the said field;

(g)Failed to devise a system of fencing and/or gates which would have enabled the path to be used without placing at risk the horses in the field.”

9.         One other feature of the claimant's claim should be mentioned at this stage. In paragraph 5 of her original particulars of claim it was said that on occasions which she cannot now particularise she had asked the defendants, their servants or agents to lock the said gate, leaving a key at the farmhouse, in order to limit the use by trespassers on the path and to ensure that the gate was properly secured at all times. The defendant had refused to allow the said gate to be so locked. When she was asked formally to provide particulars of this allegation, the answer came back:

“There was only one occasion on which the request was made.”

10.       Then follows a reference to the occasion on which the new gate was replaced.

11.       Mr Levene, who has appeared for the claimant on this appeal, drew our attention to an internal Railtrack letter to the Railtrack solicitor from an Infrastructure Liability Manager at Swindon, dated December 1994, which related to an agreement being made with the owner of the land on each side of the railway line. In that letter appears the statement that the owner, who is described as “the user”, had requested that the private footpath crossing at this point was closed. He was having serious problems with people trespassing on his property and then crossing the line at this point. But no point was made in the claimant's pleaded case of complaints which she had made, or complaints which anybody had made, about trespass over her land or the occasions when the gate was being left unlocked except for the single occasion when she had the conversation with the workmen.

12.       At the trial the claimant and her partner gave both written evidence, through their witness statements, and oral evidence. The defendants, who now knew that the claimant's claim had been limited in the way that I have described, called no evidence. At the end of the trial, after hearing the arguments put forward by her counsel (who had not had the carriage of the case throughout the time when the particulars of claim were first issued), the judge noted in his judgment that counsel had departed some way from his client's pleaded case; and at the end the judge said that her case was now formulated to the effect that when the defendants' servant or agent indicated to her that it would be illegal to allow the gate to be kept locked, the defendants were thereby vicariously liable for a breach of their duty of care to take reasonable steps to ensure the safety of the chattels or other goods of those who occupied the land adjoining the railway. In essence the judge said that it was being asserted that the defendants were liable because the workmen who attended to instal the new gate wrongly told her that the gate could not be kept locked.

13.       The judge referred to section 68 of the Railway Clauses Consolidation Act 1845, which imposes statutory duties on railway companies to maintain gates used for accommodation crossings over their lines. He then said that the company's duty of care in performing that statutory duty was met by providing a gate which was not defective; in other words, an efficient gate to prevent stock moving onto the line. He said that there was no suggestion that this gate or its closing mechanism were defective. The judge said that any extra duty of care would only arise if the circumstances were of a special kind, such as to impose some special or additional duty. Such a duty usually arose, he said, when persons, or possibly animals, were actually in the course of crossing the line. He knew of no case where it was held that the duty of the defence of animals on the line went further than the provision of a gate of the type for which this Act provided.

14.       He refused to find that in the circumstances of the present case the defendants owed the claimant a duty to take reasonable steps to make sure that the advice given to her by one of Railtrack's employees on the question whether it was illegal for this gate to be padlocked was correct. He added that even if, contrary to his view, such a duty existed, it was not reasonable in the circumstances for the claimant to rely on the advice she received from a workman who arrived at her premises to repair a gate. He was not a man in any particular position of authority. The claimant had raised the matter with him, and had simply accepted what he said. If she had any real concern on the subject she could have gone to Bridgend Station or contacted the defendants' local office to speak to someone with a degree of authority.

15.       For these reasons, the judge rejected her claim on liability. He said that if he had held in her favour, he believed that he would have been constrained by the decision of this court in Attia v British Gas Plc [1988] 1 QB 304 to hold that she was entitled in principle to recover damages for PTSD. That case has never been expressly overruled, although more recently the House of Lords have been restricting recoverability of damages in this kind of case. But until Attia was expressly overruled, the judge considered he was bound by it.

16.       The appellant now appeals by permission of Schiemann LJ on the liability issues in the case, and the respondent cross appeals on the judge's comments in relation to the recoverability of damages for PTSD.

17.       In advancing his client's case in this court, Mr Levene frankly admitted that he could not challenge the judge's finding that the legal advice given by one of the defendants' workmen was such as to enable the claimant to bring an action against the defendants following her reliance on this incorrect advice, although he submitted that he did wish to rely on the fact that this incident had effectively prevented her from doing something about the gate. His quarrel was with the gate itself. He submitted that in the circumstances of this case it was transparently obvious that a gate which had to be shut in the way that the new iron gate had to be shut, and which was not self‑closing, was not an appropriate fulfilment of the defendants' duty to use reasonable care in the performance of their statutory duty imposed by section 68 of the 1845 Act. Mr Levene appreciated that he faced the formidable obstacle that his client's former solicitors and counsel had, without formally abandoning it, made it clear that they did not rely against the defendant on the case set out at the beginning of their particulars of negligence, in which it was said that they had failed to take adequate steps to ensure that the gate would firmly shut automatically, and that they replaced the old gate that did have an automatic shutting device with a new gate which did not have such a device.

18.       We did not call on Mr Lord to respond to this appeal or to indicate to us the basis of his client's legal defence to a case that against a background of constant trespassing and the gate permanently being left open, his clients were at risk in installing a gate with the feature to which I have referred.

19.       The court does not know, and Mr Levene does not know, why his predecessors decided not to pursue this case. It may be that there was a sound legal defence based on the case law which is of some antiquity. I do not know. But once the claimant's former advisers had decided no longer to pursue their case, it appears to me that there was not very much left which could be properly sustained in relation to the claimant's case at trial. This appears to have been the claimant's view on the matter, because the original notice of appeal, which did not raise any issue which was sustainable against the other side, was that she felt badly let down by her former legal advisers.

20.       However that may be, Mr Levene gallantly sought to put on its feet, for the purposes of this appeal, a case which still fell within the four corners of what was left of his client's case at the trial. He submitted that the appropriateness of the gate remained in issue given that the claimant had been complaining about it in the context which is set out in particular (c) of the particulars of negligence. It was in those circumstances that he should be entitled to succeed on the appeal because the gate, in the circumstances, was not adequate and, as the judge said (and as was recognised by Holmes LJ in M'Elhinney v Londonderry & Lough Swilly Railway Company (unreported) 20th December 1909, noted in 1916 50 ILTR 37 at 39), although a good and sufficient gate, as mentioned in section 61 of the Act (which is in many ways comparable to section 68), is not necessarily a gate kept closed by a person employed by the railway, there might be other circumstances from which negligence could be inferred.

21.       But in my judgment, on the facts of this case, as limited by the claimant's former legal advisers by their pleadings at the trial, there was no material on which the judge could have made a finding in favour of the claimant on liability. In those circumstances it is not necessary for this court to turn to the very interesting issues which would arise for argument on the cross‑appeal.

22.       For these reasons I would dismiss this appeal.

23.       LORD JUSTICE ROBERT WALKER: I agree, although I do so with considerable reluctance. It appears that what was potentially - although I stress that I say no more than “potentially” - the best point in the claimant's case was not relied on at trial. This may have been because counsel who was instructed on behalf of the claimant at a late stage may have been inhibited by the terms of the statement of case (in fact a skeleton argument) already prepared and put in by his instructing solicitors.

24.       I feel great sympathy for the claimant, but it would not be fair to the defendant to allow the claimant to start again and deploy grounds which were abandoned, or virtually abandoned, either at trial or at the earlier pre‑trial review.

25.       Mr Levene has skilfully said all that could possibly be said in favour of the appeal, but I agree that it must be dismissed.

26.       LORD JUSTICE SEDLEY: While I agree that the appeal has to fail, I too find this a troubling case. Brooke LJ has described what happened both to the claimant's horses and in the litigation which followed. The claimant's original pleading, which had support in the evidence, set out a case of elementary simplicity. It was that the defendants had installed on an accommodation crossing a gate which neither closed itself nor latched itself when shut. If she was right, the risk, not only to livestock in the adjacent field but, for example, to trespassing children, and to staff and to passengers if a train were derailed by colliding with livestock, was apparent. This case, which is the one that Mr Levene would now like to be in a position to run, was indeed pleaded under the first head of negligence in the particulars of claim. It did not depend on any question about the permissibility of padlocking. That only arose, if at all, in rebuttal of the paragraph of the defence which blamed the claimant - if blame there was - for not locking the gate herself. If her simple primary allegation were right, none of that would arise. But it was an allegation that was never tried.

27.       Why the claimant's case at trial took the form it did is still a mystery to me, at least in the absence of any explanation - which, for all I know, there may be - from the author of the statement of case and, if it was a different person, counsel who appeared at trial.

28.       Brooke LJ has described the events in detail. The defendants, unable - it may be - to believe their luck, responded with a statement of case which, again unaided by argument, appears to me at first blush to take a somewhat laid‑back view of the limit of Railtrack's statutory duty in relation to gates giving directly onto railway lines under section 68 of the Railway Clauses Consolidation Act 1845. But none of this, in the event, mattered. The case presented against them fell without their needing to call any evidence.

29.       I stress that these are no more than first impressions. We have not found it necessary to call on the respondents, and we have not heard from those who had conduct of the case below on behalf of the claimant. On the case presented to him, the judge, I agree, was plainly right to find for the defendants. In spite of Mr Levene's commendable endeavours, there is no way in which he can now run a case on liability which was explicitly dropped before the trial.

30.       In the circumstances I reluctantly agree that this appeal has to fail.

Order: Appeal dismissed.

Crown copyright acknowledged