In a claim for contribution arising from the Selby rail crash, the Department of Transport were not negligent in failing to have a longer approach safety fence on construction of the road bridge over the railway line in 1974.Claim for contribution under s.1(1) Civil Liability (Contribution) Act 1978 by the insurers of the defendant ('H') who was the driver of the vehicle that caused the Selby rail crash in February 2001. H fell asleep at the wheel of his Land Rover which veered off the motorway and landed on railway tracks in the path of an oncoming train. Proceedings were brought by the claimant against H for damage to rolling stock, rail infrastructure and consequential losses. H's insurers had paid out ?22 million to various claimants and sought a contribution from the secretary of state for negligence in failing to erect sufficient crash barriers along the motorway, such as would have prevented H's car leaving the motorway verge. The total length of safety barrier in advance of the railway line was 62.7 metres long. H's expert contended that the barrier should have been up to 100 metres long. The minimum length of safety fence prescribed by the Department of Transport standards was 30 metres. The bridge which carried the motorway over the railway line had been constructed in 1974. The department submitted that they owed no duty of care to prevent the egress of a vehicle from the carriageway to avoid either physical injury or property damage to those off the highway.HELD: (1) Negligence was only established if the length of the safety fence provided was dangerously short, that by the shortness of the safety fencing the department did not exercise reasonable care not to unreasonably expose those on, or whose property was on, the railway line ahead. (2) If, as H's expert contended, 100 metres was the correct length, the minimum standard of 30 metres which had stood for over 40 years was wildly wrong and several hundreds of bridges should have increased length in approach safety fences. That was not accepted. (3) The reasonably safe length for the approach safety fence was site specific, a matter of professional judgment having regard to both the minimum standard and assessment on site inspection. H's expert's submission did not establish that the professional judgment made in 1974 as to the length of the barrier was negligent. (4) In an appropriate factual situation, there was no reason why a highway authority should not owe a duty of care and be liable to those neighbouring the highway if the effective cause of the egress of the vehicle inflicting the damage was a danger on, or adjacent to, the highway created by the highway authority. Furthermore, even if the vehicle left the highway partly through negligent driving and partly from a danger negligently created by the highway authority and caused damage to someone off and beyond the highway, that person could recover from the highway authority. (5) At common law, in building the bridge on which the motorway was to be carried and under which there was a main line railway track, the department was under a duty to take reasonable care that not only users of the motorway, but also people and property who could foreseeably be on the railway track, would not be exposed to an unreasonable risk of injury. (6) The department was not negligent in failing to have a longer approach safety fence on construction of the bridge in 1974. (7) (Obiter) Although H had been convicted of causing death by dangerous driving, the ex turpi causa principle had no application in relation to H's claim for contribution.Claim dismissed.

[2003] EWHC 2450 (QB)