THE insurers of Selby rail crash driver Gary Hart today lost their High Court claim for a contribution towards the costs of the disaster.

Fortis, Hart's insurers, had made a claim against the Secretary of State for Transport.

The company claimed that the Secretary of State, and the Highways Agency, were negligent in constructing and retaining a safety fence that was too short to prevent the disaster.

But Mr Justice Morland ruled today that negligence had not been established.

He said Hart was "the precipitating cause of the incursion on to the railway line".

Mr Justice Morland added: "He was grossly negligent in driving when he had had no, or almost no, sleep in the previous 36 hours."

Janine Edwards, a crash survivor from York, said she was glad the case had been brought to a close.

She said: "Maybe there should have been more barriers. But he (Hart) fell asleep at the wheel, he was in the wrong."

Fortis now look set to have to meet the entire costs of the tragedy. They have already paid out £22.3m and the bill could rise by £10m.

A Fortis spokeswoman said the company was "disappointed" with the decision and would consider an appeal.

It would not affect Fortis's solvency or its ability to meet future claims, she said.

The spokeswoman claimed Mr Justice Morland had found the Highways Agency did have a duty to consider the length of the safety fencing, to protect against the hazard presented by the railway line at the Great Heck site.

A Highways Agency spokeswoman said: "We welcome this decision. The Highways Agency is committed to achieving high standards of safety on motorways and trunk roads.

"We continue to keep the standards for safety barriers under review together with other safety measures on high speed roads where they cross railway lines."

Ten people died when Hart's Land Rover came off the M62, plunged down a grass verge and landed on the east coast line, causing a GNER train to derail.

The Newcastle-to-London Kings Cross express train then collided with a fully-laden northbound coal train.

Hart, who denied falling asleep at the wheel, was found guilty in December, 2001, of ten counts of causing death by dangerous driving and was jailed for five years. An inquest jury returned unlawful killing verdicts.

Updated: 13:59 Thursday, October 30, 2003