Dear Colin;
Thanks for alerting us to this interesting decision. I was pleased to see that the court considered in some detail the 2009 decision of the Victorian Court of Appeal in Metrolink, which involved effectively the same situation (private company operating what used to be "public" transport, operations disrupted by damage caused by a motor vehicle, private company has to pay damages for disruption to a third party, can the driver of the vehicle be held liable for the damages which had to be paid?) and came to the same conclusion- damage not too remote and hence recoverable.
I can see the formal logic of holding that the damage is foreseeable (in the general sense) and hence not too "remote". But I must confess to thinking that the dissent of Neave JA in the Victorian decision was fairly persuasive. The result of this sort of litigation is, in effect, to relieve from liability for some of the risks of running a transport system the private company which is doing it, and to place that liability onto motorists through increased insurance premiums. In other words, "privatisation" of the transport system imposes yet again more costs on the general public. The result seems so wrong as a policy outcome I think there must be a reason why it is wrong as a legal analysis! But I blush to confess I can't think of a persuasive one at the moment. Perhaps it is one of those cases for Parliament to act and shift the true costs back to the private companies claiming they can offer the services.
Regards
Neil


Neil Foster
Deputy Head of School & LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/
>>> Colin Liew <colinliew@gmail.com> 28/05/11 1:12 PM >>>
Dear all,

Members might be interested in *Conarken Group Limited and anor v Network
Rail Infrastructure Limited* [2011] EWCA Civ
644<http://www.bailii.org/ew/cases/EWCA/Civ/2011/644.html>,
where the English Court of Appeal has considered, in a long and detailed
judgment, the question of the effect of a contract between D and a 3P on the
recoverability of losses caused to D as a result of P's negligence.

Briefly, the facts were these. As a result of the privatisation of the
railway network in the UK, the respondent, Network Rail, is responsible for
owning and maintaining the railway track, while train services are provided
by companies known as Train Operating Companies (TOCs). The contracts
between Network Rail and the TOCs (known as Track Access Agreements)
provided that Network Rail would be liable to the TOCs for the continuing
availability of the track, and would have to pay them sums calculated
according to an agreed formula in respect of periods during which the track
is unavailable (what were known as "Schedule 8 payments"). The negligence of
the appellants resulted in part of the rail network becoming unavailable due
to physical damage to the track or surrounding infrastructure. As a result,
Network Rail became liable to make Schedule 8 payments to various TOCs under
the Track Access Agreements, and it sought to recover these losses from the
appellants. The question for the Court of Appeal was whether these payments
were too remote to be recovered in the tort of negligence.

The Court of Appeal (Pill, Moore-Bick and Jackson LJJ) unanimously decided
that the Schedule 8 payments were not too remote, though the emphasis of the
three judgments differs.

Kind regards,
Colin