THE HEALTH & Safety Executive (HSE) said this week it would appeal against a High Court ruling which exposes it to damages claims resulting from the 1999 Ladbroke Grove train crash.
Tuesday's ruling also raised the possibility that the HSE could face claims from the victims of May's Potters Bar crash.
Immediately after Tuesday's ruling, a lawyer for the Potters Bar victims told NCE that they would consider suing the HSE over its role in the events leading up to that disaster.
Thirty-one people died and 259 were injured at Ladbroke Grove in October 1999 when a Thames Trains service crashed into a Great Western Express near Paddington.
Just before the crash the Thames train had passed signal SN109 which was set at red (NCE 14 October 1999).
The accident happened on a stretch of track where Her Majesty's Railway Inspectorate (HMRI) - a branch of the HSE - had voiced concern over signal layouts, including SN109.
But a legal loophole allowed Railtrack to continue operating the signals without HMRI approval.
After Thames Trains' insurers, St Paul's Insurance, sought to jointly sue the HSE in a multi-million pound damages action, the HSE asked the High Court to strike out the action.
It claimed 'blanket immunity' against any personal injury claims brought by victims arising from failures in carrying out its statutory functions, regardless of the circumstances.
At the High Court in London on Tuesday, Justice Morland rejected this view.
He accepted that the HSE had no responsibility for running the railway safely and agreed that this rested with Railtrack and the train operators.
But he said: 'In my judgement, it could reasonably be argued that the Executive should be made liable not for failing to use statutory powers involving expenditure of money but for failing negligently to use, as the public would expect, their statutory powers through the Railway Inspectorate in carrying out routine duties of inspection and supervision.'
The judge also stressed that due to existing case law, he was not indicating that Thames Trains was likely to succeed in its claim.
An HSE spokesman said it intended to lodge an appeal against the ruling. If this fails, liability, if any, will be decided at a hearing expected in Spring 2004.
Civil engineer and barrister Vivian Ramsey QC of Keating Chambers told NCE: 'What this ruling has established could have serious implications for those performing statutory duties in the health and safety area.'
'Traditionally there has been a limit regarding taking an action for negligence against a statutory body like the HSE. This judgment indicates that the judge considered that as a matter of law, there could be an action against the HSE stemming from the Ladbroke Grove rail crash and that there could be some liability.'
Solicitor Louise Christian who is acting for victims of the Ladbroke Grove and Potters Bar crashes said: 'We will now be considering whether the HSE should be sued over the Potters Bar crash, because it did not issue enforcement proceedings over the points beforehand. If there was a design flaw with the points, it should have known about it.'
At Potters Bar seven people died after a commuter train derailed on defective points.
'The HSE should not be both a regulatory and investigatory authority and is not the body which should be investigating Potters Bar. It will be investigating even though it could be sued over the crash' said Christian.
She welcomed the government's recent decision to form a dedicated rail accident investigation body.
Symonds Group head of health and safety Martin Barnard said: 'This will move the HSE more towards becoming an enforcement rather than an advisory body.' He said recent moves in this direction would be accelerated by the judgement.
Transport & General Workers' Union national construction secretary Bob Blackman said he was worried by the ruling, as it could make the HSE's job more difficult.
'Other barriers to the HSE's work due to the risk of being sued are likely to lead to uncertainty in taking action. That's very worrying.'
INFOPLUS www. nceplus.co.uk/magazine/rail