B3/2001/0547
Neutral Citation Number: [2001] EWCA Civ 835
IN THE SUPREME COURT OF JUDICATURE             
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE HOLLAND)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Monday, 21st May 2001
B e f o r e :

LORD JUSTICE TUCKEY

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JENNIFER MARY DEAN
Claimant/Respondent
v ‑

(1) RAILTRACK PLC

(2) GREAT WESTERN TRAINS LIMITED
Defendants/Applicants
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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MISS L SULLIVAN QC and MR H TRUSTED (instructed by Messrs Kennedys, London EC1Y 4TW) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

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J U D G M E N T
Monday, 21st May 2001
1.	LORD JUSTICE TUCKEY: This is a renewed application by Great Western Trains, the second defendants in this action, for permission to appeal from a judgment of Holland J, who gave judgment against them on the claimant's personal injury claim arising out of an accident at Paddington Station on 15th June 1995. The judge found the applicant one‑third and the claimant two‑thirds to blame for this accident. Railtrack, the first defendant, was found not liable.
2.	The accident happened at about 9.00pm when the claimant was standing on the platform saying goodbye to her boyfriend who was on a departing train. He was standing at a door with the window down and they were, as the judge discreetly put it, “engaged in some last minute final intimacy.”
3.	The platform was curved but an employee of the applicant's, Mr MacLean, was standing on it in a position where he could see the whole length of the train. His job was to ensure its safe departure. He was to blow one blast on his whistle when all the doors were closed and a second blast when the lights on the outside of the doors showed him that they had been locked. After the second blast the conductor on the train was to buzz the driver so that he could start the journey. Two other men, a Mr Woollard and Mr Bell, were standing on the platform near the claimant. The judge accepted their evidence as to how the accident happened. They said that after the first whistle blast Mr Woollard warned the claimant that the train was about to move shortly, but she paid no attention to his warning. After the second blast he repeated the warning but she was still kissing her boyfriend when the train started to move. She walked beside it but because the platform was not straight the gap between it and the train grew larger and she fell into it as a result of which she lost her right leg.
4.	The judge found that Mr MacLean, who did not give evidence at the trial, was negligent. He said:
“It is manifest that neither whistle blast – and particularly not the second ‑ could safely be given if she [that is the claimant] would be in a position of potential danger as and when the train crew responded so as to set the train in motion. It is similarly manifest that she was in such a position as at the emission of both such blasts. The two persons who clearly saw her position at the material time instinctively thought that the imminent movement of the train would endanger her one such, Mr Woollard effectively said as much twice. Had MacLean focused upon the same situation he could not in compliance with his duty of care have blown his whistle (and in particular not for the second time) without ordering her to break off intimacy and move well back from the train.” 
5.	In the skeleton argument submitted in support of this application for permission the applicants challenge this finding because they say that the evidence showed that the claimant was not standing close enough to the train to be in imminent danger at the time that Mr MacLean gave the second blast on his whistle and the train moved off. I agree with the judge's answer to this point where he said: 
“It was faintly argued that providing she stood still when the train started to move then she would have come to no harm. Such nicety of judgment never occurred to Messrs Woollard and Bell, why should it have occurred to Mr MacLean? He could not have been confident for her safety until he saw her move well back.” 
6.	As to causation the judge said:
“Mr Trusted [counsel who appeared for the applicant's at trial] points out that no injury was in fact sustained by reason of the train's motion. The immediate cause was her forward movement alongside the train and into the gap. Accordingly, he submits there was no causal connection between any breach and the accident. I reject this submission, I am satisfied on a balance of probability that had Miss Dean been moved back by Mr MacLean before the final whistle blast then she would not have thereafter dashed forward so as to seek continued contact with the train. The spell would have been broken.
A clear contribution to the accident was made by the fact that the train was allowed to start with intimacy unbroken so that she was in a position to seek to maintain contact with the train.” 
7.	Before me this morning Miss Linda Sullivan QC, for the applicants, has focused her argument upon the judge's finding of causation. She says that the inferences which the judge drew were against the weight of the evidence, a summary of which she has put in. There was, she submits, a logical and legal break in the chain of causation which she analyses as follows. At the time Mr MacLean gave the all‑clear for the train to move it could have moved off without danger to the claimant if she had remained where she was at that time. There was some evidence that she had taken a step back from the train when her boyfriend asked her to do so and so it was safe for Mr MacLean to blow the whistle. What happened after that was entirely on the claimant's initiative. She came back towards the train and then followed it up the platform and walked into the gap in the way I have described. In so doing the chain of causation was broken.
8.	I am afraid I do not accept these submissions. The evidence as to the claimant's precise movements immediately before and after the train started to move off was, it seems to me, not entirely consistent, as Miss Sullivan's summary shows. The judge had to form a view about what was likely to have happened. I think he was right not to attach great significance to precisely how close the claimant was at the time the train started to move off and what she had or had not done just before that time and precisely how she came to fall into the gap. The passage I have cited shows that he considered whether generally the claimant had broken contact with the train so that she had stopped focusing all her attention on her departing boyfriend and had the opportunity to consider her own safety. The judge concluded that had Mr MacLean done anything the spell would have been broken and the accident would have been avoided. As the judge said, unlike Mr Woollard, Mr MacLean had the status and the uniform and, to use the judge's words, “vitally he had the whistle”. He could and should have ensured that she moved back, by which the judge obviously meant not just a short step, but well back from the train, before whistling for the second time. I do not think on that analysis the judge's finding of causation is susceptible to appeal.
9.	As to contributory negligence the judge rejected Mr Trusted's submissions that the claimant was a hundred per cent to blame for the accident. He said:
“That sort of finding is rare and impossible logically to sustain unless, as is sometimes the case when liability is based on breach of statutory duty, the claimant is responsible for the defendant's breach of duty.
I have to make a jury decision.” 
10.	The skeleton argument in support of the application for permission which Miss Sullivan only developed shortly complains that the judge attached too little weight to a number of points: the claimant had ignored the whistle; she had ignored the warnings of Mr Woollard and her boyfriend; she had followed the train after it started to leave and not looked where she was going and that was against the background of the fact that she had drunk alcohol earlier in evening.
11.	I do not accept these submissions. The judge was obviously aware of each of these points. As he said the question of apportionment was a jury question. If he had not found the claimant more to blame than the applicant there might have been scope for an argument that the court should interfere. However, as I said when refusing permission on paper, apportionment is very much a matter for the trial judge with which this court will not usually interfere. The judge did find the claimant more to blame than the applicant. Whilst other judges might have found her more to blame I do not think there is any prospect of this court interfering with the judge's conclusion that she was two‑thirds to blame. Like him, I can see no logical basis for a conclusion that she was a hundred per cent to blame, given his finding that there was a causative breach of duty by an employee of the applicants.
12.	For those reasons I remain of the view, ably though the application has been presented to me this morning, that this is a case in which permission to appeal must be refused.
(Application refused; no order for costs).