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JAMES MENZIES CLEGG+LORNA CLEGG v. JANE KATHRYN ROGERSON+NETWORK RAIL INFRASTRUCTURE LIMITED (formerly RAILTRACK PLC)


Submitted: 19 August 2005

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 113

PD705/04

OPINION OF LORD HODGE

in the cause

JAMES MENZIES CLEGG AND LORNA CLEGG

Pursuers;

against

JANE KATHRYN ROGERSON & NETWORK RAIL INFRASTRUCTURE LIMITED (formerly RAILTRACK PLC)

Defenders:

________________

Pursuers: Maguire, Q.C., Haldane; Digby Brown, SSC

Defenders: McEachran, QC., Lamont; Lawford Kidd

Peoples, Q.C., Sanders; Macroberts

19 August 2005

Background

[1]This case concerns a tragic accident on a level crossing which resulted in the death of a man, Mr Bruce Thomson, and the serious injury of a three year old girl, Sarah Clegg. The pursuers are the parents of the injured girl and are seeking damages for the depression and other mental disorders which they suffered in consequence of the accident.

[2]Damages have been agreed between the parties. In the event of either or both of the defenders being found liable to the pursuers, the first pursuer is to receive £20,000 in respect of solatium with interest from 14 June 2005. The second pursuer also is to receive £20,000 as solatium with interest from 14 June 2005 and also £1,800 in respect of loss of earnings, again with interest from 14 June 2005 and in addition interest on the loss of earnings of £486.

[3]The issue between the parties is whether and to what extent either or both of the defenders were in breach of their duties of reasonable care to the pursuers as parents of the injured girl in having caused or materially contributed to the accident. No issue is raised of the scope of the defenders' duty of care to the pursuers in relation to the injury which they suffered.

The locus of the accident

[4]The accident occurred at the level crossing at Moulinearn, Perthshire which is situated on the Western side of the A9 trunk road between Ballinluig and Pitlochry. The railway runs parallel to the A9 and the crossing is located within about 15 metres of the northbound carriageway of the A9. The road on which the crossing is situated is a private road leading to the hamlet of Moulinearn which comprises about seven houses and two holiday properties. The road also gives access to agricultural land and to the river Tummel which people can fish on obtaining permits from Atholl Estates.

[5]Until 1997 the crossing was operated by a crossing attendant, Mrs Herbertson, who lived at Moulinearn. The crossing appears to have been operated safely but on occasion a person wishing to cross the railway could be delayed for up to 20 minutes as the signalman would not authorise Mrs Herbertson to open the gates once a train had reached certain points on the railway which were several miles from the crossing. In about 1996 Railtrack decided to dispense with Mrs Herbertson's services and introduce a user worked crossing ("UWC") in place of the gates which she opened and shut. The crossing as constructed in 1997 comprised a barrier which extended across the width of the road. Drivers operated the crossing electronically, pressing a button to raise or lower the barrier. As initially designed in 1996 the proposed UWC would have been operated from either side of the railway only by two buttons to raise and lower the barrier which were situated on a pole on the left hand side of the barrier. On the pole there was a klaxon or yodalarm, which was intended to alert pedestrians to the approach of a train. In addition, in very close proximity to the pole with the buttons and klaxon there was a pole with a sign with a red light and a green light containing short instructions. These lights were smaller than traffic lights on public roads and were known as "Miniature Stop Lights" ("MSLs"). Beside the red light were the words "Red STOP" and beside the green light were the words "Green Clear". Immediately beneath the lights were the words "If no light - phone signalman". Immediately beneath the sign containing the lights there was a further sign containing further instructions. The instructions were as follows:

"INSTRUCTIONS

1.Check that green light shows

2.Fully raise both barriers

3.Check that green light still shows

4.Cross quickly

5.Lower barriers"

The green light would change to red and the klaxon would sound when an approaching train triggered a treadle on the track not less than 40 seconds before the train reached the crossing.

[6]It was intended that a vehicle driver on either side of the crossing would approach the crossing and observe the MSLs and instructions. The driver would stop and would have to get out of his car to operate the buttons. After crossing the railway the driver would again have to get out of the car to close the barriers.

[7]As a result of local representations from, among others, Councillor Eleanor Howie, concerning the problems which disabled and elderly people would face if they had to get out of their cars to operate the barrier controls, Railtrack agreed to install on the right hand side of the road on each side of the crossing a pole with controls which could be operated by a driver from the driver's seat in the car. I refer to these poles hereinafter as "the driver's side poles" and to the controls on them as "the driver's side controls". Initially Railtrack proposed that the controls would be operated by a key which would be issued to a few known elderly drivers who used the crossing. But, as a result of further local representations which asserted that that would be discriminatory against disabled drivers, Railtrack installed buttons on the driver's side poles which a driver could operate without having a key. The driver's side poles were located about one car's length from the right hand side of the barriers. The instructions on each of the poles stated:

"Barrier Controls

Ensure Crossing Clear

Before Lowering Barriers

PUSH AND HOLD"

In addition the word "Raise" was located above the green button and the word "Lower" below the red button.

[8]The effect of the introduction of the driver's side controls was that many users of the crossing who were familiar with it did not get out of their cars to operate the controls beside the barrier but stopped their cars on the right hand side of the private road and operated the driver's side controls from within their cars.

[9]There was also on the left hand side of the road as one approached the crossing another pole with control buttons which a passenger could operate to raise the barrier before crossing or which a driver could use from within his car to close the barriers once he had crossed the railway. Those controls had no bearing on the accident. On each side of the crossing there was a telephone linked to the Pitlochry signal box which users could operate if they needed advice in relation to the crossing. There was also an electronic alarm in the Pitlochry signal box which was activated if the barriers remained in a raised position for more than 3 minutes. This enabled the signalman to warn train drivers to proceed with care.

[10]Most UWCs with barriers in Britain are operated hydraulically by the user who has to get out of his car to do so. Almost all UWCs with electronically operated barriers have the controls beside the MSLs at the barrier, again requiring the user to leave his car. There is in Britain one other UWC with electronically operated barriers which can be controlled by a driver from within his car. That UWC is situated in Sussex and significantly is operated by key and not by push button. Thus the Moulinearn UWC was a unique crossing.

The circumstances of the accident

[11]On 5 May 2001 the pursuers and their children spent the day in the company of the first defender and her boyfriend, Mr Bruce Thomson. After visiting Huntly, they were travelling in two cars to stay with friends, Branislav Sudjic and Eleanor Howie, at Moulinearn. In the pursuers' car, Mr Clegg was driving and Mrs Clegg was in the back seat. Their son, Charlie, was in the front passenger seat. In the other car, initially Mr Bruce Thomson was the driver, but at some stage in the journey from Huntly the first defender took over the driving and Mr Thomson sat in the front passenger seat. The pursuers' three year old daughter, Sarah, was seated in the back seat. The pursuers, who were following the first defender's car at a distance, made contact with her or Bruce Thomson by mobile phone when travelling on the A9. As a result shortly after 7.30 pm they arrived at the junction to Moulinearn together, with the pursuers' car following the first defender's car.

[12]The first defender waited some time in the right hand lane of the southbound carriageway of the A9 for a gap in the northbound traffic to allow both her and the pursuers to cross the northbound carriageway into the private road to Moulinearn. The first defender, on Mr Thomson's suggestion, drew into the right hand side of the private road beside the driver's side pole. The first pursuer drove the pursuers' car to the left hand side of the private road and stopped beside and slightly behind the first defender's car. When the cars were stationary on the private road in front of the barrier and when the first defender drove across the level crossing the red MSL was on and the klaxon was sounding. Investigations after the accident showed that the warning equipment and the barriers were in working order at the time of the accident.

[13]The first defender, whom Mr Thomson was instructing on the use of the controls, initially opened the passenger window by mistake before closing it and opening her window. She had some difficulty operating the driver's side controls as she did not keep her hand pressed on the raise button with the result that the barrier started to open then stopped. However when Mr Thomson asked her to keep her hand on the control button, the barrier was raised. She then drove over the crossing, looking to see if a train was coming.

[14]When the first defender's car was almost across the crossing it was struck on the rear nearside by a train travelling in a northerly direction at almost 80 mph. There was nothing that the train driver, who was driving within the speed limit for the track, could have done to prevent the accident. The impact of the train catapulted the rear of the car into the barrier mechanism on the Moulinearn side of the crossing and its front spun into contact with the train. As a result of the accident Mr Thomson died of his injuries in Perth Royal Infirmary and the pursuers' daughter suffered brain damage.

Allegations of fault

[15]The pursuers pleaded a case of fault against the first defender and submitted that she had failed to exercise reasonable care by crossing the level crossing when the red MSL was on and the klaxon was sounding. The first defender pleaded a case of sole fault or in any event contribution against the second defenders arising out of what was averred to be an inherently dangerous design of the crossing. After proof senior counsel for the pursuers submitted that the accident was caused solely by the fault of the first defender. She adopted the first defender's case against the second defenders only on the contingency that I held that the first defender was not at fault to any degree. I consider each case in turn.

(a) The first defender

[16]The first defender as driver of a car was under a duty to take reasonable care for the safety of, among others, the persons travelling in her car. She was under a duty to keep a proper lookout when driving and she owed her passengers this duty at the UWC as much as she did on the public roads.

[17]The first defender's evidence was that she did not see the red MSL nor did she hear the klaxon sounding. From where she was parked the red MSL was located at about 40 degrees to the left in her field of vision and was visible to those who looked for instructions. It was suggested that evening sunlight might have obscured the MSL or the instructions. I do not accept that evidence. Railtrack officials tested the visibility of the MSL shortly after the accident in the face of evening sunlight in similar weather conditions. Evening sunlight would not have obscured the MSL. The reason the first defender did not see the MSL is that she did not look for instructions. The klaxon would probably have been audible to a person in a car with the passenger window down, notwithstanding traffic noise from the A9. Thus Mr Bruce Thomson should have heard it when his window was lowered if he had been paying attention. I do not accept the assertion that Mr Thomson did not hear the klaxon; at best for the first defender it appears that he did not communicate to the first defender that it was sounding. It is surprising that the first defender did not hear the klaxon when the passenger window was lowered. She should have heard it if she were paying attention. Nevertheless, I accept that the first defender's evidence that she did not hear the klaxon when she raised the barrier and crossed the crossing. I do so for two reasons.

[18]First, the pursuers in their evidence had no recollection of seeing the red light or hearing the klaxon. This may support the suggestion that the klaxon was competing with traffic noise from the A9. But this is far from conclusive. It appears that they were concentrating on their children and did not have their car windows open. Mr Clegg told his son that a train was coming and Mrs Clegg was attempting to catch sight of her daughter in the back seat of the first defender's car but was unable to see her because their car was parked slightly behind the first defender's car. They saw the first defender put her hand out of the driver's window and saw the barrier rise. They did not appreciate that there was danger but they were looking to the first defender to take the lead. As a result Mr Clegg had not applied his mind to the safe operation of the crossing. Concentration on other things combined with the noise of traffic on the A9 may have caused the pursuers not to hear the klaxon which was clearly audible in Mr Michie's garden, about 60 metres from the crossing on the Moulinearn side.

[19] Secondly, and more significantly, I do not think that it is likely that the first defender would have crossed the level crossing if aware of the klaxon warning without taking further precautions. She had her boyfriend and her friends' toddler in the car and would not knowingly have put them at risk. I accept the first defender's evidence that she was not aware of the klaxon sounding or the red MSL being on when she crossed the railway.

[20] Nonetheless, I consider that the accident was caused by the first defender's failure to exercise reasonable care. It appears that the first defender did not apply her mind to ascertain the safe way to cross the railway and did not read the visible instructions but rather followed the guidance of her boyfriend, Mr Thomson. This is clear from the evidence of Mr Calum McLean, a catering officer with Scotrail, who got off the train and spoke to the first defender immediately after the accident. He gave evidence that she explained to him that Mr Thomson had told her to raise the barrier and that she had done as he had told her. The first defender in her evidence accepted that she had followed Mr Thomson's instructions but asserted that she had not done so slavishly. It is likely that Mr Thomson heard the klaxon when the passenger window of the car was opened and was in a good position to observe the red MSL but it is not clear why he advised the first defender to lift the barrier. The first defender gave evidence that Eleanor Howie had told her and Mr Thomson that the crossing had been broken on three or four occasions. This may have influenced Mr Thomson but I do not consider that there is sufficient evidence to reach a view on why he advised the first defender to raise the barrier.

[21]Mr Thomson was familiar with the crossing as he had visited his friends at Moulinearn on many occasions. The first defender was less familiar with the crossing but she had been across it (in one or other direction) on between four and six occasions as a passenger. She accepted that she was aware of the klaxon and also that she was aware of lights, at least on the Moulinearn side of the crossing, but she explained that she thought that the red and green lights were to warn drivers of oncoming traffic as the road rose sharply from Moulinearn to the crossing and had a blind spot on the brow at the crossing.

[22]Significantly, the first defender accepted that she and Mr Thomson had waited at the A9 side of the crossing in the dark for over half an hour in December 2000 because the klaxon was sounding. Eventually a driver from the Moulinearn side of the crossing opened the barrier and crossed the railway. He explained to Mr Thomson and the first defender that the safety mechanism was broken and that the red MSL and klaxon remained on even when no train was approaching. He also explained that the system had broken down before and that one had just to keep a good lookout when crossing. The first defender claimed that on that occasion she did not see the red MSL but only the small red lights on the barrier. She also claimed that she did not see the instruction sign beneath the red MSL. I cannot accept that evidence. While she may have forgotten that she had seen the MSL, and while she, as a passenger in the car, may not have paid much attention at the time, I consider that it is highly unlikely that she did not see it when she spent between 30 and 40 minutes in a car in front of the barrier. There was persuasive evidence from Police Constable Gilroy that the MSLs at this UWC were prominent at night. He also gave evidence which I accept that the sign containing the instructions which was located beneath the MSLs would have been visible in the headlights of a parked car. In addition if the first defender had applied her mind to the working of the crossing she would have realised from her experience in December 2000 that the barrier might be raised when the warning system was on. Mr McEachran submitted that all the first defender could reasonably have taken from observing the other driver open the barrier was that the barrier could be raised when the warning system was broken. I am not persuaded that that is the case. At the very least her experience ought to have alerted her to the presence of the warning system and to the possibility that barriers could be raised when the warning system was in operation.

[23]It is clear from the evidence that the first defender acted promptly in drawing up at the driver's side pole and opening the barriers. Her estimate was that the manoeuvre to cross the northbound carriageway of the A9, open the barrier and cross the railway took between 20 and 30 seconds. While this might have been an underestimate, the first defender certainly acted quickly. The first pursuer suggested that the cars were stationary at the barrier for about 30 seconds before the barrier lifted. Of that time, some time will have passed when the first defender obtained Mr Thomson's advice, opened the passenger window of her car in error and then opened the driver's window. Thereafter, over ten seconds were spent in pressing the control button to raise the barrier. The collision occurred about seven seconds after the barrier was raised. The first defender did not read the instructions beside the driver's side controls but relied on Mr Thomson to explain that she required to keep her hand on the raise button for the barrier to continue to rise. In these circumstances I am satisfied that the first defender did not look around for instructions on whether to cross the railway or to operate the controls or for any red or green light. She was content to act on Mr Thomson's prompting to raise the barrier and attempt to cross the railway. In so acting she failed to keep a proper lookout and to have regard to the red MSL and instructions and thus failed in her duty of care.

[24]Mr McEachran submitted that the first defender was misled by the layout of the crossing and was entitled to conclude from her experience of automatic crossings on public roads that when the barrier rose it was safe to cross. While I recognise that there may be people who could be misled by the fact that the barrier rose, I do not accept that a reasonably careful driver would ignore the important difference between an automatic crossing on a public road and a UWC, namely that the barriers in the former are operated without any action by a driver while the barriers in the latter are normally in a closed position and open only if the driver takes steps to open them. The fact that the driver has to take the initiative ought to cause the careful driver to instruct himself or herself on the operation of the crossing. I do not accept that a reasonably careful driver who had some familiarity with the crossing would have been exercising reasonable care if he or she failed to observe the red MSL and instructions, raised the barrier and assumed that it was safe to cross. If a driver exercised such care, he or she would have looked for instructions on a safe means of crossing the railway. A careful driver looking for instructions at Moulinearn would not have had difficulty in finding them.

[25]I was also referred to the Highway Code which in the section on railway level crossings at paragraph 269 discusses user operated gates and barriers. It states:

"Some crossings have 'Stop' signs and small red and green lights. You MUST NOT cross when the red light is showing, only cross if the green light is on. If crossing with a vehicle, you should

    • Open the gate or barriers on both sides of the crossing
    • Check that the green light is still on and cross quickly
    • Close the gates or barriers when you are clear of the crossing."

Section 38(7) of the Road Traffic Act 1988 provides that a failure of a person to observe a provision of the Highway Code may be relied on in civil proceedings as tending to establish liability. The first defender's failure to observe the Highway Code confirms my opinion, derived from the evidence of the locus and the circumstances of the accident, that the accident was caused by the first defender's fault.

[26]Before turning to the case against the second defenders it is appropriate that I comment on the credibility and reliability of the first defender as counsel for the pursuers and counsel for the second defenders both made submissions on that issue. I do not accept that the first defender was incredible in the sense that she was knowingly telling untruths when giving evidence. Nonetheless, I found her evidence to be unreliable in several respects. I do not accept that she did not see the red MSL and the instructions during her prolonged wait at the crossing in December 2000. I am not prepared to accept that she relied on the fact that the barrier rose to conclude that it was safe to cross on the evening of the accident. In December 2000 she had seen a driver raise the barriers when the red MSL was on and the klaxon was sounding. She was aware from discussions with Eleanor Howie of the importance of closing the barrier after crossing and thus that the barriers did not close on the approach of a train. There was no reason therefore for her to assume that the approach of a train would prevent the barrier being raised and I am not persuaded that she made such an assumption. I do not accept the first defender's evidence that, if there had been MSLs and a sign with instructions on the right hand side of the barrier and instructions at the driver's side pole, she would probably have taken heed of them and desisted from crossing. It is possible that she would have observed them and obeyed them, but I do not think that it is more likely than not that she would have done so. Rather her acts, of which she and others spoke, were consistent with a failure to apply her mind to the issue of safety and an undue reliance on Mr Thomson's instruction to raise the barrier and cross the railway. Her account of slipping in and out of consciousness and of screaming at Perth Royal Infirmary when she gave a statement to the police is contradicted by others who were present. I do not accept that account but I do not attach any weight to the answers which she then gave in response to questions from the police as it appears that she may have been sedated at the time. In general I formed the view that in her evidence of how the accident had occurred she had persuaded herself that she must have done or thought certain things which in fact she had not done or thought. In the light of the tragedy this is understandable.

(b) The second defenders

[27]As I have said, the first defender pleaded that the accident was caused by the second defenders' fault in having designed and constructed an inherently dangerous crossing. The second defenders denied any liability and pleaded that the layout of the crossing and its construction had been authorised in compliance with an order made by the Secretary of State for Transport under section 1 of the Level Crossings Act 1983 and had been approved by HM Railway Inspectorate.

The construction and approval of the level crossing

[28]The replacement of the manned crossing by a UWC caused controversy locally and there were articles in the Perthshire Advertiser inspired by Councillor Howie among others which were critical of the proposed crossing. Those articles however are of little relevance to the issues in this case as the safety issues which they raised did not give rise to this accident. For example, one of the primary concerns of local residents was that careless users would leave the gates open after crossing the railway. However, Mrs Simpson of the Mid Atholl Strathtay & Grandtully Community Council in a letter dated 4 February 1997 also addressed concerns about the visibility of the warning lights and the audibility of the klaxon in competition with, among other things, heavy traffic on the A9. She suggested that there were too many possibilities of human error, carelessness, forgetfulness and deliberate evasion of the system for the proposed crossing to be safe. Councillor Howie in correspondence also pointed out that the MSLs might be difficult to see in bright sunshine. As I am satisfied that the MSLs were visible to a careful driver, the klaxon would have been audible in most circumstances if a driver had listened for it and that the first defender was not misled by the layout of the crossing, I am not satisfied that the risks which local people raised in correspondence and which were reported in the press contributed to the accident.

[29]Of more significance are Railtrack's knowledge from the safety assessments which led to the construction of the crossing and Railtrack's failure to follow up reports of three "near misses" between 1997 and 1999. It is necessary to consider these in more detail in order to assess whether they revealed matters which contributed to the accident.

[30]In its Railway Safety Principles and Guidance ("RSPG") HM Railway Inspectorate has laid down conditions for the use of UWCs. Those conditions include the requirement that trains should not exceed a certain speed and that the crossings should only be used on private roads. Most UWCs are protected by gates on both sides of the railway. The amount of additional protective equipment that may be provided is related to, among other things, train speeds and daily vehicle usage of the crossing. Thus where, as at Moulinearn (on the higher estimate of user), the daily road vehicle user is more than fifty and less than one hundred, the RSPG recommends the use of gates or barriers combined with a telephone to a supervising point. Use of MSLs is recommended where the minimum warning times of trains cannot be obtained and the daily road vehicle user exceeds one hundred. Thus, as the second defenders pointed out, the Moulinearn UWC, through the incorporation of MSLs, included protective equipment beyond that suggested in the RSPG. The instruction signs at Moulinearn complied so far as material with the recommendations of the RSPG.

[31]Railtrack initially designed a UWC for Moulinearn which would have required all drivers to get out of their cars to operate the control buttons beside the barriers. They carried out safety assessments on that design in about September 1996. Thereafter in the autumn and winter of 1996 Railtrack corresponded with HM Railway Inspectorate on their risk assessment and the design of the crossing. In accordance with the Level Crossings Act 1983 Railtrack produced a draft order and consulted Perth and Kinross Council which in turn advertised the application and obtained comments from the public. As a result of public representations and in correspondence with HM Railway Inspectorate on these representations, Railtrack agreed to vary the proposed layout to provide for elderly and disabled access by providing the driver's side controls. The proposal initially was to have control buttons which anyone could operate.

[32]On 6 March 1997 at a meeting attended by representatives of Railtrack, First Engineering and Signalling Control UK the attendees carried out a Hazard Operability Study ("HAZOP"). First Engineering were Railtrack's main contractors in the construction of the crossing and Signalling Control UK were their sub-contractors. Signalling Control had expressed concerns about the safety of the crossing where drivers could operate the control buttons from the driver's seat without having to leave their vehicles. Among the concerns it raised were whether the signs and MSLs would be visible from the driver's operating point at the control buttons. They also raised the question whether the operating instructions would be visible from a vehicle during darkness. The risks were noted and arrangements were made to check the visibility of the signs and lights at the locus after the equipment was installed. In the initial assessment on the morning of 6 March, in which the parties had examined the proposed layout with the control buttons available to all drivers, the risk of an accident was considered to be remote. Traffic using the crossing was assessed at about 20 vehicles per day. After another meeting in the afternoon Railtrack, acknowledging the continuing concerns of Signalling Control UK that the layout introduced additional risks, revised the layout to enclose the driver's side controls in locked boxes and proposed to issue keys to two known elderly users, thus greatly reducing the usage of those controls. This had the effect of reducing the risk of an accident on the risk assessment methodology which Railtrack adopted from remote to improbable. However no evidence was led as to the detail of the methodology and I was not able to form any view as to its reliability. The three risk issues relating to visibility of the instructions and the lights which I mentioned above were assessed as tolerable in the context of the controls being located in a locked box. Mr Allan McCarthy, an employee of the second defenders, gave evidence that from his examination of Railtrack's records he was satisfied that Railtrack officials had carried out a site visit to test the visibility of the signs and MSLs from the operating points at the driver's side poles. Thus Railtrack's assessment of risk was that an accident was a remote risk if the operating controls were open to general use and was improbable if the controls were enclosed in a locked box.

[33]Railtrack brought the new crossing into operation on 23 March 1997, before the draft Order had been finalised and approved. By letter dated 19 March 1997 HM Railway Inspectorate confirmed that Railtrack had power to do so under regulation 4(4)(a) of the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994 ("the 1994 Regulations").

[34]At this stage in order to confine the use of the driver's side controls to elderly or disabled drivers who had been briefed on the operation of the crossing, Railtrack enclosed the control buttons within locked boxes and issued keys to the boxes to the relevant drivers. But, as a result of further representations from Councillor Howie concerning discrimination against the disabled, Railtrack agreed to remove the boxes to give all disabled and elderly persons (and in practice all other drivers) access to the control buttons while sitting in their cars. On 22 April 1997 a site meeting was held at Moulinearn at which representatives of Railtrack, HM Railway Inspectorate, the Roads Department of Perth and Kinross Council, and the police and also Councillor Howie, who represented the Moulinearn residents, were present. Councillor Howie raised certain concerns including the visibility of the warning lights from the Moulinearn side in direct sunlight and the risk of a driver failing to shut the barrier after crossing the railway. Another concern which was raised was that foreign drivers might not understand the instructions. Councillor Howie also raised the question of disabled access and it appears that at this meeting Railtrack and HM Railway Inspectorate agreed to alter the driver's side controls by removing the locked boxes.

[35]At that meeting Police Constable Gilroy expressed concern that the barrier could be raised when the red MSL was lit on the approach of a train and suggested that there should be an electronic lock which would prevent the barrier being raised when a train was approaching. Both Railtrack and HM Railway Inspectorate rejected that suggestion, taking the position that it was for the users of the crossing to comply with the instructions for its use. In his written report of the meeting and in his evidence PC Gilroy expressed the view that the crossing was safe if drivers operated it in accordance with the instructions displayed on the site but, drawing on his experience as a traffic policeman, that the design had not fully taken account of the human elements of ignorance, stupidity and laziness.

[36]On 6 June 1997 Mr P H Bridge, a Principal Inspector of Railways in HM Railway Inspectorate, wrote to Railtrack referring to the site visit on 22 April which he had attended and expressing general satisfaction with the installed arrangements (including the driver's side controls for operation by drivers from within their cars) and the revisions being proposed. He recommended certain changes to the draft Order to reflect what was being installed on the ground. In a letter to Councillor Howie dated 14 July 1997, Mr Cooksey, a Deputy Chief Inspector of Railways, responded to criticisms of the crossing which Councillor Howie had raised in letters in February and March 1997. He pointed out among other things that the interests of the disabled had been addressed by unlocking the driver-operated control buttons and that the audible warning device was designed to alert pedestrians rather than the drivers of motor vehicles. Finally, by letter dated 19 May 1998, Mr Cooksey referred to Mr Bridge's inspection of the crossing on 6 November 1997 and the subsequent completion of the works on the crossing and granted approval of the crossing on behalf of HM Railway Inspectorate in terms of the 1994 Regulations.

[37]There was evidence of three "near misses" at the Moulinearn UWC in which drivers had crossed the crossing in front of an approaching train on 11 April 1998, 4 October 1999 and 25 November 1999 respectively. After the occurrence of the third reported safety incident Railtrack should have carried out a risk assessment of the UWC if they had complied with their own safety standards. They did not do so before the accident with which this action is concerned.

Events after the fatal accident

[38]Following the accident Railtrack and other interested parties obtained reports assessing what might have been done to prevent it. The authors of the reports made various suggestions.

[39]Mr Michael Gray, who in 2001 was head of the Ergonomics Section of the Health and Safety Laboratory in Sheffield and who now works for the Factory Inspectorate, prepared a report in June 2001 at the request of HM Railway Inspectorate and also gave evidence. He suggested, among other things, that an inexperienced user of the UWC would concentrate on operating the buttons at the driver's side pole rather than on the MSLs and that the raising of the electronically controlled barrier could mislead a user into thinking that it was safe to cross. He concluded that the arrangements at Moulinearn were less than ideal and that they could be improved to reduce the likelihood of people making errors. He suggested that habitual users of the UWC would understand how it works but that people who were unfamiliar or who had a little familiarity were most at risk. His recommendations included improving the visibility of the MSLs, a sounder beside the control buttons and a warning that an open barrier did not mean that it was safe to proceed.

[40]Professor Davies of the Centre of Applied Social Psychology, University of Strathclyde, prepared a report with Dr Alastair Ross in April 2005 and gave evidence. He noted the changes which had been made to the Moulinearn UWC since the accident and identified four "error-promoting conditions" in the UWC at the time of the accident. First, he considered that the location of the controls at the driver's side pole would distract a driver from the MSLs. Secondly, he suggested that the need to press and hold the control buttons would cause a driver to concentrate on operating them rather than directing his or her attention elsewhere. Thirdly, he suggested that the colour coding of the control buttons (green to raise and red to lower) would give the driver a message that the operation of the green button meant that it was safe to proceed. Fourthly, he argued that a driver could be misled by the fact that the barrier rose on pressing the green button, citing the analogy of barriers in car parks, airports and other locations where the correct action on the raising of the barrier is to proceed.

[41]Railtrack commissioned a risk assessment of the Moulinearn UWC from Environmental Resources Management Limited ("ERM") and their report dated October 2001 was discussed in the oral evidence. The purpose of the report was to demonstrate, with particular emphasis on human factors, that the level of risk was as low as reasonably practicable or to identify additional controls that were reasonably practicable. Residents and selected users were interviewed, an ergonomics assessment was made and a HAZOP was carried out to develop a quantified fault tree model of the UWC. The report concluded that the risk to the public merited the introduction of additional controls. It recommended that there should be a partial interlock to prevent the barriers from being raised once a train had struck in, an additional MSL at the driver's side controls and an increased size of lights in the MSLs. Repetition of the instructions at the controls on the driver's side pole was also seen as helpful but it was noted that HM Railway Inspectorate preferred the location of MSLs and instruction signs at both ends of the barriers.

[42]The second defenders carried out a risk assessment shortly after the accident in the context of a formal investigation into the accident. The investigation, led by Mr Allan McCarthy of Railtrack, included representatives of Railtrack, Scotrail and First Engineering. The investigating panel unanimously concluded that the UWC at Moulinearn was appropriate at the time of the accident and met the requirements of the RSPG on level crossings. It acknowledged that there had been a failure to carry out a risk assessment after the three safety incidents and the team commissioned a full risk assessment. I do not need to dwell on that risk assessment beyond saying that it was patently flawed in its calculation of risk, in that it materially overstated the likelihood of accidents at the UWC. Mr McCarthy admitted as much in evidence. Nevertheless the panel made certain recommendations to improve the safety of the UWC, recognising that some drivers might be distracted by the positioning of the driver's side controls and not observe the MSLs and the instructions. Among its recommendations, the investigating panel recommended that the crossing should not be brought back into normal operation until additional signs with instructions had been installed at the driver's side controls, safety instruction sheets had been issued to fishermen when they obtained permits to fish, and residents at Moulinearn had been reminded to inform their guests about the crossing.

[43]Sheriff Principal Dunlop held a fatal accident inquiry in November 2001, but section 6(3) of the Fatal Accident Inquiries Act 1976 precludes me from having regard to his determination.

[44]In the event, Railtrack installed a second set of MSLs on the right hand side of the barrier and placed signs containing instructions on the use of the controls (in the same terms as those set out on the second sign referred to in paragraph 5 above) both below those MSLs and at the driver's side controls. The open control buttons on the driver's side poles were replaced with key-operated controls to raise the barriers, in an attempt to confine use of those controls to people who hade been briefed on the UWC when they were issued with keys. Red buttons to lower the barriers were installed and were available to all. The MSLs were replaced with marginally larger lights which were surrounded with square hoods. In addition signs were introduced on the A9 indicating that the road to Moulinearn was a private road.

Submissions

[45]In seeking to show that Railtrack were negligent in the design and construction of the level crossing and that they alone were liable in negligence, Mr McEachran submitted that Railtrack had failed to carry out a risk assessment in accordance with the guidance in the RSPG before commissioning the UWC. He also submitted that the UWC did not comply with paragraph 247 of the RSPG which required that the MSL should be clearly visible to the crossing users when operating the gates or barriers.

[46]He criticised both Railtrack and HM Railway Inspectorate for adopting a blinkered and unrealistic approach to the effect that an installation which was safe for a user who took care and followed instructions was therefore fit for its purpose. This, he submitted, failed to take account of human error. He was particularly critical of the attitude of HM Railway Inspectorate which sought standardisation amongst UWCs rather than between all forms of level crossing, particularly when the public was more likely to be familiar with crossings on public roads. Many drivers would have no experience of a UWC. In his submission Railtrack and HM Railway Inspectorate had failed to provide adequate safety features in a unique crossing.

[47]He submitted that there should have been a partial interlock system as advocated by PC Gilroy. This would prevent the barrier from rising but would not lower the barrier once it was raised and thereby avoid the danger of a complete interlock system which might trap a car within the crossing. He pointed out that there was evidence that several motorists had been misled by the rising of the barrier into the belief that it was safe to cross the railway. In addition, Railtrack had failed to comply with their own standards which required them to have a further risk assessment of the level crossing if there had been three near misses. As there were three recorded near misses at Moulinearn between 1997 and 1999, Railtrack should have carried out a further assessment which would probably have revealed the dangerous nature of the crossing.

[48]He focused on the unique feature of the UWC at Moulinearn, namely the open control buttons on the driver's side of the road. This, he submitted, caused the driver to look away from the MSLs and the instructions and to concentrate on the process of pressing the button on the driver's right to raise the barrier. In support of his view he founded on the report and oral evidence of Professor Davies. He pointed out that all of the reports since the accident had agreed on the inadequacy of the layout of the crossing but had proposed different solutions. He also founded strongly on the changes which Railtrack made at the crossing in the light of those critical reports and the Fatal Accident Inquiry and which I have mentioned in paragraph 44 above. Finally he submitted that Railtrack should have introduced the flashing lights which operate on automatic crossings and warn of the approach of a train and the lowering of the barrier.

[49]In support of his submission that the second defenders were responsible for the safety of the crossing and that they could not pass that responsibility on to HM Railway Inspectorate, Mr McEachran referred me to Powell & Jackson "Professional Negligence" (5th Ed.) at para 8-202 and the Australian case of Voli v Inglewood Shire Council and Another [1962-1963] 100 CLR 74. As to the nature of the duty of a railway company for the safety of a level crossing he referred me to Smith v LMS Railway Co 1948 SC 125.

[50]Mr Peoples for the second defenders invited me to hold that the first defender had seen the red MSL and heard the klaxon but had decided to cross the railway, as Mr Thomson had done in December. If that were so, Railtrack did not cause the accident. However as I have already held that on balance of probability the first defender was not aware of the red light or the klaxon, that submission falls to be rejected.

[51]Mr Peoples also submitted that even if the first defender was not aware of the red MSL and the klaxon, she did not bother to look and carried out Mr Thomson's instructions. In those circumstances Railtrack did not cause or contribute to the accident. Railtrack had designed and constructed the crossing in accordance with a statutory procedure which involved consultation with HM Railway Inspectorate who had been made aware of and had approved the layout including the unlocked control buttons on the driver's side pole. The layout was authorised by an order under the Level Crossings Act 1983 and complied with that order in all material respects. If the Inspectorate had not been satisfied that the crossing was safe they would not have granted the order.

[52]He pointed out that in accordance with RSPG (para 133) it would have been sufficient simply to install the barriers and a telephone. The introduction of the MSLs and the instructions were additional safety features which the level of usage did not require. The crossing as originally designed complied with RSPG.

[53]He submitted that it was not reasonably foreseeable that a driver would not bother to look for any instructions when operating the controls and referred to Maloco v Littlewoods 1987 SC (HL) 37, 66-68 per Lord Mackay. Thus there had been no failure in the duty of care. He invited me to look at the first defender's actings in the round and not to focus only on what she did when she was pressing the button. It was important to keep in mind that the crossing was a UWC and that the law places the primary duty to take care to drive safely on road users. He referred to Gorringe v Calderdale MBC [2004] 1 WLR 1057. He accepted that the second defenders were under the duty of care set out in Smith v LMS Railway Co but submitted that the exercise of that care had to be assessed in the context of the statutory regime which required the approval of the Secretary of State through the medium of HM Railway Inspectorate for a level crossing. He referred me to the Stair Memorial Encyclopaedia Volume 13 at paras 1031-1035. In conclusion he invited me to hold that the second defenders were not liable in negligence or that if there were any question of contribution, they were not liable to make a substantial contribution.

Discussion

The law

[54]In my opinion the duty of care owed by second defenders is as stated in Smith v LMS Railway Co 1948 SC 125, Lord President Cooper at p.136: the second defenders were under a duty at every level crossing where there is reason to expect members of the public to be to take all reasonable precautions to reduce the danger to the public to a minimum. The fact that the second defenders went through the statutory procedure to obtain the approval of HM Railway Inspectorate and obtained that approval for the level crossing does not exclude liability for negligence but is nevertheless relevant in considering whether or not Railtrack were negligent: Voli v Inglewood Shire Council [1962-1963] 110 CLR 74, 88 per Windeyer J.

Discussion of liability

[55]The second defenders carried out a risk assessment of the proposed layout, including the layout with the unlocked control buttons on the driver's side pole before the UWC was constructed. But I do not have any significant information on that assessment or the cost/benefit balance which resulted. I therefore discount any argument that the low level of usage would necessarily have justified less protection of users than would otherwise be the case. The fact that Railtrack's pre-installation HAZOP indicated a tolerable risk is not of itself an answer to the claim. As I have said, this was a unique crossing. The uniqueness of the crossing required Railtrack to consider its layout carefully. In my opinion, in weighing up the probability and seriousness of a risk, Railtrack (and HM Inspectorate) should have been able to foresee the careless driver as well as the careful driver.

[56]I consider that the location of the driver's side control buttons on the right hand side of the road might distract an uninformed and inattentive driver from looking at the MSLs and the instructions on the left hand side of the barrier. It is also the case that when concentrating on pressing those controls a driver is likely to look at the controls and, when he does so, the MSLs would not be clearly visible. In that limited respect Moulinearn UWC did not meet the guidance of the RSPG during the time when a driver was operating the driver's side controls. But the MSLs would be clearly visible as the driver approached the crossing and before he or she turned to look at the driver's side controls. Further, a driver who was wholly unfamiliar with the crossing would be unlikely to draw up at the right hand side of the road but would be more likely to stop on the left hand side with the MSLs and instructions immediately in front of him. Thus the risk of the unfamiliar driver failing to notice the MSLs and instructions was likely to be low.

[57]It also appears that people are capable of being misled by their ability to raise the barrier on operating the control button into the belief that it is safe to cross. Mr Hammond, a consulting engineer and a friend of Eleanor Howie and Mr Sudjic, gave evidence that he had crossed the Moulinearn UWC between three and four times per year and that until the accident he had assumed that it was safe to cross when the barrier rose. While it is surprising that a person of his professional background would make such an assumption and would repeatedly fail to observe the instructions and the MSLs, I accept that there are members of the public who will not take sufficient care and who will make that assumption.

[58]Railtrack was aware of the concerns of the safety of the layout when the crossing was being constructed, including those which Signalling Control UK and PC Gilroy articulated. The former was specifically concerned about the unlocked driver's side controls. The latter was concerned that the barrier should have an interlock to prevent it opening when a train approached. Railtrack required to address those concerns. However it is not legitimate to use hindsight to impose on a defender obligations which would not arise in the exercise of reasonable care without the benefit of that hindsight. It may be easy after the event to think of things that could have been done to prevent a particular accident. But that does not mean that a failure to do one or more of those things amounts to a failure to exercise reasonable care in the circumstances as they existed before the accident. Similarly, the fact that the first defenders have introduced additional safety measures after the accident is not of itself evidence that they were negligent in constructing the UWC without those measures. It is easy to be wise after the event: Philpott v British Railways Board [1968] 2 LLR 495, Thesiger J at p.502.

[59]In my opinion, the second defenders may be criticised for introducing the driver's side controls which were available to all drivers without repeating the instructions on the second sign mentioned in paragraph 5 above on a pole beside the controls. This would have served to direct the attention of the driver, who was concentrating on the driver's side controls, to the MSLs as the principal safety device. I am not persuaded that without the benefit of hindsight the second defenders can be criticised for a failure to introduce the other measures which were introduced after the accident. Their duty was to take reasonable care. As in Titchener v British Railways Board 1984 SC (HL) 34, people approaching the railway would be aware of the potential danger when they crossed it. In my opinion if Railtrack had repeated the instructions beside the driver's side controls, they would have fulfilled their duty of reasonable care. Even if Railtrack had carried out a risk assessment in response to the three safety incidents between 1997 and 1999, I do not consider it likely that it would have introduced the other measures which Mr McEachran desiderated.

[60]The second defenders found on the fact that the UWC was approved by HM Railway Inspectorate. It is clear from the legislation that the Inspectorate could withhold approval of the crossing if not satisfied that it was safe and it is clear from correspondence passing between Railtrack and the Inspectorate that the latter required the former to prepare a draft order under the 1983 Act. From the evidence of Mr Tilly it appeared that the Inspectorate supported standardisation, taking the view that consistency as between crossings of a certain type was more important to a user's safety than additional measures at a particular crossing. The Inspectorate's approval of the UWC is relevant in two respects. First, while the second defenders remained responsible for the safety of the crossing, the approval tends to show that Railtrack, who did not have the benefit of hindsight, did not overlook an obvious danger. Secondly, insofar as there were precautions which might have been taken, such steps would need the Inspectorate's approval. If that approval was not likely to be forthcoming, I cannot conclude that the second defenders were negligent in failing to introduce those precautions.

[61]In relation to the first of these, I consider that insufficient attention was given by both Railtrack and the Inspectorate to the possibility that an unfamiliar driver might see the driver's side control buttons and fail to notice the MSLs and the instructions. I consider that there was a real possibility that the driver's side controls could mislead a person who was not familiar with the crossing and distract them from the MSLs and the instructions located at the left hand side of the barrier. While the risk of this occurring might be small, the potential for a fatal accident if the risk eventuated was considerable. As I have said in paragraph 59 above, there was a need therefore for the instructions to be repeated beside the driver's side pole.

[62]It is also apparent that had the driver's side controls been enclosed in a locked box or had they been only key operated, steps could have been taken to brief those who were given keys on the safe operation of the crossing. This would have minimised the risk that uninformed persons would use the driver's side controls. However, I do not consider that Railtrack, without the benefit of hindsight and in particular the research which followed the fatal accident, would have been open to criticism for installing open driver's side controls if they had also repeated the instructions near the driver's side pole.

[63]The second respect in which the attitude of the Inspectorate is relevant to this action is in relation to Mr McEachran's suggestion that there should have been a partial interlock and also wig-wags. In my opinion Railtrack were not careless in failing to introduce these protective measures which exist in no other UWC in Britain. In any event I am satisfied that the Inspectorate would not have sanctioned their introduction. I consider each in turn.

[64]A partial interlock would have avoided this accident but it was not acceptable to HM Railway Inspectorate. Mr Tilly expressed concern that there should be standardisation of UWCs. In a file note dated 16 June 1997 concerning the Moulinearn UWC, Mr Bridge of HM Railway Inspectorate considered the possibility of interlocking the barriers with the MSLs and rejected the idea on the ground that it would "dilute" users' continuous attention to the MSLs and would be detrimental to safe user behaviour. In his evidence Mr Tilly suggested that if Railtrack had implemented the recommendations of ERM, the Moulinearn UWC would depart further from the standard UWC and would be more confusing. Professor Davies also did not favour complete or partial interlock as it might trap a vehicle, person or animal between the barriers. Even with a partial interlock a vehicle could be trapped between the barriers if a driver who had preceded that vehicle carelessly closed the barriers while the vehicle was on the crossing and then the partial interlock operated on the approach of a train.

[65]While Mr Tilly mentioned the possibility of flashing lights (or wig-wags) in his letter dated 30 May 2001, he also stated that he was not convinced that they (or other changes) would lead to better user discipline. The second defenders' experience of drivers ignoring wig-wags at an automated crossing in Stirling supported this view. I consider that wig-wags also would in all probability have been unacceptable to HM Railway Inspectorate again for the reason of standardisation. I note that Mr Gray, whom the Inspectorate commissioned to advise them after the accident, did not support the introduction of wig-wags, arguing that it was important to distinguish UWCs from automatic level crossings on public roads.

[66]In my opinion the critical question in this case is whether any failure by Railtrack caused or materially contributed to this accident. While I have criticised Railtrack for not introducing instructions at the driver's side controls, I am not persuaded that the absence of those instructions caused this accident. Having regard to the speed with which and manner in which the first defender raised the barriers and the fact that she was carrying out Mr Thomson's instructions, I do not accept that she would have read the instructions any more than she did the instructions on the driver's side pole to push and hold the control button to raise the barrier. I am also not persuaded that if there had been MSLs and instructions on the right hand side of the barrier it is more likely than not that this accident would have been avoided. The first defender was not looking for external guidance but was carrying out Mr Thomson's instructions. While MSLs on the right hand side of the barrier would have slightly easier to see from a position close to the driver's side controls than those on the left hand side of the barrier, I am not able to conclude on balance of probability that the first defender would have observed them or acted on their warning. What would have prevented this accident was a partial interlock. For the reasons stated in paragraphs 60 and 64 above, Railtrack were not negligent in not introducing such an interlock.

Conclusions

[67]The pursuers succeed in their case against the first defender and the first defender fails in her case against the second defenders. I therefore grant decree against the first defender in favour of the first pursuer for £20,000 with interest at the judicial rate on that sum from 14 June 2005. I grant decree against the first defender in favour of the second pursuer (1) for £20,000 with interest at the judicial rate from 14 June 2005, (2) for £1,800 with interest at the judicial rate from 14 June 2005 and (3) for £486 in respect of interest accrued on the principal sum in (2). I sustain the second defenders' third plea-in-law and grant them decree of absolvitor.