Insurers of the motorist who caused the Selby rail crash lost a High Court action today against the Secretary of State for Transport for a contribution towards the millions they have paid out.

Gary Hart's insurers, Fortis, had asked Mr Justice Morland to find that a motorway design defect was partly to blame for the accident.

They had brought a civil action in a bid to recover a contribution towards the £22.3 million-plus they have already paid out in the aftermath of the crash - a sum which could rise by another £10 million.

The insurers claimed that the Secretary of State was negligent in constructing and retaining a safety fence that was too short to prevent the disaster on February 28, 2001.

But the judge 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.''

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 10 counts of causing death by dangerous driving and was jailed for five years. An inquest jury returned unlawful killing verdicts.

The Secretary of State contested the contribution proceedings, submitting that the claim by Hart's insurers was ''misconceived and unarguable in law''.