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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Wheatley
Lord Brodie
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[2007] CSIH NUMBER
87
PD705/04
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
RECLAIMING MOTION
in the cause
(FIRST) JAMES MENZIES
CLEGG and (SECOND) LORNA CLEGG
Pursuers;
against
JANE KATHRYN ROGERSON
First Defender and
Reclaimer;
and
NETWORK RAIL
INFRASTRUCTURE LIMITED
Second Defenders and
Respondents:
_______
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Act:
Maguire, Q.C., Haldane; Digby
Brown, SSC (Pursuers)
Alt:
McEachran, Q.C., Lamont; Lawford
Kidd (First Defender and Reclaimer)
Alt:
Peoples, Q.C., Sanders;
MacRoberts (Second Defenders and Respondents)
4
December 2007
Introduction
[1] On
a sunny evening on 5 May 2001 there was a tragic accident on a
level crossing south of Pitlochry in Perthshire. The A9 trunk road, which on that stretch is a
dual carriageway, runs close to the main railway line from Perth to Inverness.
The railway line lies to the west of the A9. The settlement of Moulinearn lies to the west
of the railway line, between it and the River Tummel. Access to Moulinearn is gained by a private
road which leaves the northbound carriageway of the A9 and then crosses the
level crossing. At that time the railway
was operated by Railtrack plc ("Railtrack"), whose successors, Network Rail
Infrastructure Limited ("Network Rail") are the second defenders in this
action. The car was driven by Jane
Rogerson ("Miss Rogerson"), who is the first defender. Her boyfriend, Bruce Thomson ("Mr Thomson"),
was in the front passenger seat and a three year old girl, Sarah Clegg, was in
the back seat. When the train struck the
car Mr Thomson was killed and Sarah Clegg was seriously injured. Her parents, James Clegg and Lorna Clegg ("Mr
and Mrs Clegg"), who are the pursuers, were following in another car, with
their son Charlie. In this action Mr and
Mrs Clegg have sought 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, Mr and Mrs Clegg are each to receive £20,000 in respect of solatium
with interest from 14 June 2005.
Mrs Clegg is also to receive £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 before the Lord Ordinary was whether and to what
extent either or both of the defenders were in breach of their duties of
reasonable care to Mr and Mrs Clegg 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 Mr and Mrs Clegg in relation to the injury which
they suffered.
[4] The
action was originally brought against Miss Rogerson as the sole defender,
but she brought Network Rail into the process by third party notice. Thereafter, Mr and Mrs Clegg adopted
Miss Rogerson's averments directed against Network Rail, on the hypothesis
of fact upon which they proceeded, and made amendments to their pleadings which
had the effect of seeking damages from both Miss Rogerson and Network
Rail. After hearing proof, the Lord
Ordinary (Lord Hodge) awarded the agreed sums of damages against
Miss Rogerson, but assoilzied Network Rail. In brief, he held that Miss Rogerson
failed to exercise reasonable care in attempting to cross the railway at a time
when a train was approaching, and that this was the sole cause of the
accident. He also held that Railtrack
might be criticised for failing to take one particular precaution, which is
discussed below, and that if they had taken it they would have fulfilled their
duty of reasonable care, but that this failure did not cause the accident.
[5] Miss Rogerson
has now reclaimed against this decision.
She does not seek to displace the Lord Ordinary's finding of liability
against her. She has lodged an
undertaking, which is recorded in the minute of proceedings and was confirmed
before us by her senior counsel, that she will not attack the decision of the
Lord Ordinary so far as it relates to the finding that she was negligent, as
more fully set out in the Lord Ordinary's Opinion dated 19 August
2005. At the start of the hearing before us, when
the undertaking was confirmed, senior and junior counsel for Mr and
Mrs Clegg sought and were granted leave to withdraw. Network Rail have cross-appealed. The grounds of appeal that were argued before
us are set out below.
[6] The issues in
this reclaiming motion are, in outline, whether (1) as contended by
Miss Rogerson, the Lord Ordinary ought to have found that the accident was
caused in part by the fault of Railtrack, and accordingly Network Rail should
be found liable to make a contribution to the damages payable to Mr and
Mrs Clegg and (2) whether, as contended by Network Rail in a cross appeal,
the Lord Ordinary erred in law in holding that Railtrack failed in their duty
to take reasonable care.
The Lord Ordinary's
findings in fact
[7] To a notable
extent, neither party took issue with the Lord Ordinary's primary findings in
fact or the conclusions he drew from them.
Because of this, and because they appear to us to be clearly expressed,
what follows is taken from the Lord Ordinary's Opinion, with minor
alterations. We shall indicate at a
later stage the points at which the parties took issue with his decision.
The locus of the accident
[8] 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.
[9] 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 by no more than 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"). On either side of the red light were the words "Red" and
"STOP" and on either side of the green light were the words "Green" and "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.
[10] 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.
[11] 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. These poles are referred to hereinafter as "the driver's side poles"
and 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.
[12] 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.
[13] 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 three minutes.
This enabled the signalman to warn train drivers to proceed with care.
[14] 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 construction and approval of the
level crossing
[15] 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. The Lord Ordinary said that
those articles however were 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 the Lord Ordinary was 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 Miss Rogerson was not
misled by the layout of the crossing, he was not satisfied that the risks which
local people raised in correspondence and which were reported in the press
contributed to the accident.
[16] The
Lord Ordinary said that of more significance were 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 was necessary to consider these in more detail in order to assess
whether they revealed matters which contributed to the accident.
[17] In
its Railway Safety Principles and Guidance ("RSPG") HM Railway Inspectorate
laid down conditions for the use of UWCs.
Those conditions included the requirement that trains should not exceed
a certain speed and that the crossings should only be used on private
roads. Most UWCs were protected by gates
on both sides of the railway. The amount
of additional protective equipment that might be provided was 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 was more than 50 and less than
100, the RSPG recommended the use of gates or barriers combined with a
telephone to a supervising point. Use of
MSLs was recommended where the minimum warning times of trains could not be obtained
and the daily road vehicle user exceeded one hundred. Thus 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.
[18] 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.
[19] On
6 March 1997 at a meeting attended by representatives of Railtrack, First
Engineering and Signalling Control UK those present 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 the Lord Ordinary was not able to form any view as to
its reliability. The three risk issues relating to visibility of the
instructions and the lights, mentioned above, were assessed as tolerable in the
context of the controls being located in a locked box. Mr Allan McCarthy, an employee of Network
Rail, 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.
[20] 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").
[21] 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.
[22] 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 appeared that at this meeting
Railtrack and HM Railway Inspectorate agreed to alter the driver's side
controls by removing the locked boxes.
At the same meeting PC 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.
[23] 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.
[24] 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. The Lord Ordinary held
that 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.
The circumstances of the accident
[25] On 5 May 2001 Mr and Mrs Clegg and their children
spent the day in the company of Miss Rogerson and her boyfriend, Mr
Thomson. After visiting Huntly, they
were travelling in two cars to stay with friends, Branislav Sudjic and Eleanor
Howie, at Moulinearn. In one 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 Thomson was the driver, but at some stage in the
journey from Huntly Miss Rogerson took over the driving and Mr Thomson sat in
the front passenger seat. Mr and Mrs
Clegg's three year old daughter, Sarah, was seated in the back seat. Mr and Mrs Clegg, who were following
Miss Rogerson'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 Mr and Mrs Clegg's car following Miss Rogerson's car.
[26] Miss
Rogerson 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 Cleggs
to cross the northbound carriageway into the private road to Moulinearn. Miss Rogerson, on Mr Thomson's suggestion,
drew into the right hand side of the private road beside the driver's side
pole. Mr Clegg drove their car to the
left hand side of the private road and stopped beside and slightly behind Miss
Rogerson's car. When the cars were
stationary on the private road in front of the barrier and when Miss Rogerson
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.
[27] Miss
Rogerson, 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 button, the barrier was raised. She then drove over the crossing, looking to
see if a train was coming.
[28] When
Miss Rogerson'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 Sarah Clegg suffered brain damage.
Events after the accident
[29] 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.
[30] Mr
Michael Gray, who in 2001 was head of the Ergonomics Section of the Health and
Safety Laboratory in Sheffield and who at the time of the proof worked 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 worked 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.
[31] 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.
[32] 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 barrier.
[33] Railtrack
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. The
Lord Ordinary said that the risk assessment 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 might not observe the MSLs and the instructions. Among its recommendations, the 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.
[34] Sheriff
Principal Dunlop held a fatal accident inquiry in November 2001, but section
6(3) of the Fatal Accident Inquiries Act 1976 precluded the Lord Ordinary from
having regard to his determination.
[35] 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
[9] 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.
The Lord Ordinary's findings of fault
[36] Before
the Lord Ordinary, Mr and Mrs Clegg pleaded a case of fault against Miss
Rogerson 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. Miss Rogerson pleaded a case of sole fault or in any event
contributory negligence against Network Rail as successors to Railtrack arising
out of what was averred to be an inherently dangerous design of the crossing.
After proof senior counsel for Mr and Mrs Clegg submitted that the accident was
caused solely by the fault of Miss Rogerson. She adopted Miss Rogerson's case
against Network Rail only on the contingency that the Lord Ordinary were to
hold that Miss Rogerson was not at fault to any degree.
(a) Miss
Rogerson
[37] The Lord Ordinary said that Miss
Rogerson as the 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. Her 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. The Lord Ordinary did 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 Miss Rogerson did not see the MSL was 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 Thomson should have heard it when his window was lowered if he
had been paying attention. The Lord
Ordinary did not accept the assertion that Mr Thomson did not hear the klaxon;
at best for Miss Rogerson it appeared that he did not communicate to her that
it was sounding. It is surprising, he
said, that Miss Rogerson did not hear the klaxon when the passenger window was
lowered. She should have heard it if she
were paying attention. Nevertheless, he accepted Miss Rogerson's evidence that
she did not hear the klaxon when she raised the barrier and crossed the
crossing. He did so for two reasons.
[38] First,
Mr and Mrs Clegg in their evidence had no recollection of seeing the red light
or hearing the klaxon. This might
support the suggestion that the klaxon was competing with traffic noise from
the A9. But this was far from
conclusive. It appeared 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
Miss Rogerson's car but was unable to see her because their car was parked
slightly behind her car. They saw Miss
Rogerson 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 her 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 might have caused Mr and
Mrs Clegg not to hear the klaxon which was clearly audible in the garden of Mr Michie, a local resident, about 60 metres
from the crossing on the Moulinearn side.
[39] The
Lord Ordinary said that secondly, and more significantly, he did not think that
it was likely that Miss Rogerson 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. He accepted her evidence that she was not aware of the klaxon sounding or
the red MSL being on when she crossed the railway.
[40] Nonetheless,
the Lord Ordinary considered that the accident was caused by Miss Rogerson's
failure to exercise reasonable care. It
appeared that she 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 was clear from the evidence of Mr Calum McLean, a catering officer
with Scotrail, who got off the train and spoke to Miss Rogerson 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. Miss Rogerson in her evidence accepted that
she had followed Mr Thomson's instructions but asserted that she had not done
so slavishly. The Lord Ordinary held that it was 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 was not clear why he advised Miss
Rogerson to lift the barrier. Miss
Rogerson gave evidence that Eleanor Howie had told her and Mr Thomson that the
crossing had been broken on three or four occasions. The Lord Ordinary said
that this might have influenced Mr Thomson but he do not consider that there
was sufficient evidence to reach a view on why he advised Miss Rogerson to
raise the barrier.
[41] Mr
Thomson was familiar with the crossing as he had visited his friends at
Moulinearn on many occasions. Miss Rogerson 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.
[42] The
Lord Ordinary said that, significantly, Miss Rogerson 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
them 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.
Miss Rogerson 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. The Lord Ordinary was unable to
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, he considered that it was 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 PC Gilroy that
the MSLs at this UWC were prominent at night.
He also gave evidence, which the Lord Ordinary accepted, 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 Miss Rogerson 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. Senior counsel for Miss Rogerson submitted
that all she 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. The Lord Ordinary was not
persuaded that that was 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.
[43] The
Lord Ordinary went on to say that it was clear from the evidence that Miss
Rogerson 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,
she certainly acted quickly. Mr Clegg
suggested that the cars were stationary at the barrier for about 30 seconds
before the barrier lifted. Of that time,
some time would have passed when Miss Rogerson 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. Miss
Rogerson 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 the Lord Ordinary was satisfied that Miss
Rogerson 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.
[44] Senior
counsel for Miss Rogerson submitted that
she 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 the
Lord Ordinary recognised that there might be people who could be misled by the
fact that the barrier rose, he did 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 were operated without
any action by a driver while the barriers in the latter were normally in a
closed position and open only if the driver took steps to open them. The fact that the driver had to take the
initiative ought to cause the careful driver to instruct himself or herself on
the operation of the crossing. He did
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.
[45] The
Lord Ordinary 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. Miss Rogerson 's failure to
observe the Highway Code confirms the Lord Ordinary's opinion, derived from the
evidence of the locus and the circumstances of the accident, that the accident
was caused by her fault.
[46] The
Lord Ordinary said that it was appropriate that he comment on the credibility
and reliability of Miss Rogerson as counsel for the other parties both made
submissions on that issue. He did not
accept that she was incredible in the sense that she was knowingly telling
untruths when giving evidence.
Nonetheless, he found her evidence to be unreliable in several
respects. He did not accept that she did
not see the red MSL and the instructions during her prolonged wait at the
crossing in December 2000. He was 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 the Lord Ordinary was not persuaded that she made such
an assumption. He did not accept Miss
Rogerson '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 was possible that she would
have observed them and obeyed them, but he did not think that it was 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 was contradicted by others who were present. The Lord Ordinary did not accept that account
but he did not attach any weight to the answers which she then gave in response
to questions from the police as it appeared that she may have been sedated at
the time. In general he 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 was understandable.
(b) Network
Rail
[47] Miss Rogerson pleaded that the accident was caused
by Railtrack's fault in having designed and constructed an inherently dangerous
crossing. Network Rail denied any such
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.
[48] The
Lord Ordinary said that in his opinion the duty of care owed by Railtrack was
as stated in Smith v LMS Railway Co 1948 SC 125, per Lord President Cooper at page136:
they were under a duty at every level crossing where there was 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 they went through the statutory procedure to obtain the approval of
HM Railway Inspectorate and obtained that approval for the level crossing did
not exclude liability for negligence but was nevertheless relevant in
considering whether or not Railtrack were negligent: Voli v Inglewood
Shire Council [1962-1963] 110 CLR 74, 88 per Windeyer J. Railtrack
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 the Lord Ordinary did
not have any significant information on that assessment or the cost/benefit
balance which resulted. He therefore
discounted 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 was not of itself an answer to the claim. This was a unique crossing. The uniqueness of the crossing required
Railtrack to consider its layout carefully.
[49] In
the Lord Ordinary's 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. 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. When
concentrating on pressing those controls a driver was likely to look at the
controls and, when he did 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 or her. Thus the risk of the unfamiliar driver
failing to notice the MSLs and instructions was likely to be low.
[50] It
also appeared that people were capable of being misled by their ability to
raise the barrier on operating the control button into the belief that it was
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 was surprising that a
person of his professional background would make such an assumption and would
repeatedly fail to observe the instructions and the MSLs, the Lord Ordinary
accepted that there were members of the public who would not take sufficient
care and who would make that assumption.
[51] Railtrack
were 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 were 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 was 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 might be easy after the event to think of
things that could have been done to prevent a particular accident. But that did not mean that a failure to do one
or more of those things amounted to a failure to exercise reasonable care in
the circumstances as they existed before the accident. Similarly, the fact that Railtrack introduced
additional safety measures after the accident was not of itself evidence that
they were negligent in constructing the UWC without those measures. It was easy to be wise after the event: Philpott
v British Railways Board [1968] 2 LLR 495, per Thesiger J at page 502.
[52] In
the Lord Ordinary's opinion, Railtrack might be criticised for introducing the
driver's side controls which were available to all drivers without repeating
the instructions on the second sign mentioned 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. He was not persuaded that without the benefit
of hindsight Railtrack could 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. 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, it was
not likely that it would have introduced other measures desiderated by senior
counsel for Miss Rogerson.
[53] Network
Rail founded on the fact that the UWC was approved by HM Railway
Inspectorate. The Lord Ordinary said
that it was clear from the legislation that the Inspectorate could withhold
approval of the crossing if not satisfied that it was safe and it was 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 was relevant in two respects. First, while Railtrack remained responsible
for the safety of the crossing, the approval tends to show that, without the
benefit of hindsight, they 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, the Lord Ordinary could not conclude that Railtrack were negligent
in failing to introduce those precautions.
[54] In
relation to the first of these, the Lord Ordinary considered 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.
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. There was a need therefore
for the instructions to be repeated beside the driver's side pole.
[55] It
was 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, the Lord Ordinary did 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.
[56] The
second respect in which the attitude of the Inspectorate was relevant to this
action was in relation to senior counsel's suggestion that there should have
been a partial interlock and also wig-wags. In the Lord Ordinary's opinion Railtrack were
not careless in failing to introduce these protective measures, which existed
in no other UWC in Britain. In any event he was satisfied, for the
detailed reasons discussed by him, that the Inspectorate would not have
sanctioned their introduction.
[57] In
the Lord Ordinary's opinion the critical question in this case was whether any
failure by Railtrack caused or materially contributed to the accident. While he had criticised Railtrack for not
introducing instructions at the driver's side controls, he was not persuaded
that the absence of those instructions caused the accident. Having regard to the speed with which and
manner in which Miss Rogerson raised the barriers and the fact that she was
carrying out Mr Thomson's instructions, he did 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. He was also not persuaded that if there had
been MSLs and instructions on the right hand side of the barrier it was more
likely than not that the accident would have been avoided. Miss Rogerson 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 been slightly easier to see from a position close to the
driver's side controls than those on the left hand side of the barrier, the
Lord Ordinary was not able to conclude on balance of probability that Miss
Rogerson would have observed them or acted on their warning. What would have prevented the accident was a
partial interlock. For the detailed
reasons given by him, Railtrack were not negligent in not introducing such an
interlock.
The grounds of appeal
Grounds of appeal for Miss Rogerson
[58] The
grounds of appeal for Miss Rogerson which were argued before us (omitting
ground 1.2, which was not argued) were, so far as material, as follows:
"1 The Lord
Ordinary erred in law in his assessment of the evidence in concluding ... that
the failure of [Railtrack] did not materially contribute to the accident. In particular:
1.1 The Lord
Ordinary was wrong to conclude that Mr Thomson heard the klaxon before the
accident ...
1.1.1 Mr Thomson is
dead and there is no direct evidence of knowledge prior to the accident.
1.1.2 The klaxon was
intended to warn pedestrians and not motorists or people in cars.
1.1.3 None of the
other occupants of the two cars heard the klaxon, viz. ... Jane Rogerson and Mr and Mrs Clegg.
1.1.4 The surrounding
circumstances make it most unlikely and improbable that he heard the
klaxon. If he had heard the klaxon he
surely would have warned [Miss Rogerson] to protect her, himself and the child
in the back of the car. ...
1.3 In assessing
the probabilities of [Miss Rogerson] reacting to warning instructions on the
pole beside the driver's side controls, the Lord Ordinary has overlooked the
evidence that between 1997 (when the warning sign should have been put up) and
the accident, [Miss Rogerson] would have passed over the crossing 4-6 times and
Mr Thomson on many occasions ... As the purpose of such a warning sign would have
been to warn occasional visitors in cars such as [Miss Rogerson] and Mr
Thomson, it is likely that they would have seen and taken note of the
instructions and in particular the need to check that the warning light was not
at red. They are likely to have acquired
knowledge of the proper and safe method of crossing in 1997 and in any event
well before the date of the accident.
Accordingly it is likely that on the day of the accident they would have
approached the level crossing, having checked to see if the warning light was
at red or green; and only proceeded if the light was at green. This is particularly so when they had a child
in the back seat."
Ground of appeal for Network Rail
[59] The
sole ground of the cross-appeal for Network Rail is in the following terms:
"The Lord Ordinary erred in law in holding that [Railtrack]
failed in their duty to take reasonable care having regard, in particular, to
the following considerations: (firstly)
that [Railtrack] designed and constructed the crossing in accordance with a
statutory procedure under which the layout was independently assessed by HM
Railway Inspectorate acting on behalf of the Secretary of State and authorised
by an Order made under the Level Crossings Act 1983; (secondly) the crossing, as at the date of the
accident, complied in all material respects with the terms of the Order; and
(thirdly) if [Railtrack] had not complied with the requirements of the Order,
they were liable to face prosecution."
The scope for review of
the Lord Ordinary's decision
[60] It was agreed between the parties that the
leading authority which provides guidance to this court is Thomas v Thomas 1947 S.C.
(H.L.) 45, in which observations were made about the duty of an appellate court
when reviewing a decision on fact of the judge who heard the evidence, where
the credibility of witnesses is involved, and upon the circumstances in which
the court is justified in disregarding his conclusions. In a well-known passage at p.54, Lord
Thankerton said:
"I do not find it necessary to review
the many decisions of this House, for it seems to me that the principle
employed therein is a simple one, and may be stated thus:-
(1) Where
a question of fact has been tried by a Judge without a jury, and there is no
question of misdirection of himself by the Judge, an appellate Court which is
disposed to come to a different conclusion on the printed evidence should not
do so unless it is satisfied that any advantage enjoyed by the trial Judge by
reason of having seen and heard the witnesses could not be sufficient to
explain or justify the trial Judge's conclusion.
(2) The
appellate Court may take the view that, without having seen or heard the
witnesses, it is not in a position to come to any satisfactory conclusion on
the printed evidence.
(3) The
appellate Court, either because the reasons given by the trial Judge are not
satisfactory, or because it unmistakably so appears from the evidence, may be
satisfied that he has not taken proper advantage of his having seen and heard
the witnesses, and the matter will then become at large for the appellate
Court."
Counsel for Miss Rogerson also relied on a passage in
the Opinion of Lord Hamilton in Hamilton v Allied Domecq plc
2006 SC 221, at paragraphs [84] to [85].
In paragraph [84] Lord Hamilton referred to the constraints to which an
appellate court was subject on matters of fact.
This did not, however, absolve the Inner House of the Court of Session
from its obligation as a Court of Appeal on matters of fact to reconsider the
evidence led before the Lord Ordinary and determine upon such reconsideration
whether critical findings of fact, both primary and secondary, made by the Lord
Ordinary were justified. The appellate
court had to bear in mind the advantages which a judge of first instance
enjoyed and which an appellate court did not, including the opportunity to form
an impression, from the manner in which a witness gave evidence, as to the
reliability or otherwise of that witness's evidence. The way in which the case was conducted by
legal representatives in the court of first instance might also legitimately
affect the approach adopted by the court to the assessment of evidence. The paragraph concluded:
"Moreover, in so far as concerns the
evaluative exercise of drawing, or declining to draw, factual inferences from
primary facts, an appellate Court should exercise due caution before reversing
such an evaluation."
In paragraph [85] his Lordship said:
"On the other hand, when, on
examination by the appellate Court of the printed evidence, it is plain that it
could not constitute a proper basis for some primary finding of fact made by
the Judge of first instance, the appellate Court has a power and a duty to
reverse that finding. If findings of
fact are unsupported by the evidence and are critical to the decision of the
case, it may be incumbent on the appellate Court to reverse the decision made
at first instance."
Counsel for Miss Rogerson also referred to a unreported
decision of the Court of Appeal in England, Heffer
and Another v Tiffin Green, UBENF
97/1050/1, 17 December 1998, particularly in the judgment of Lord Justice
Henry, who said at para.6.4:
"The appellants here ask us to allow
the appeal, and give judgment for the defendant, effectively reversing the
judge's finding on credibility. I am not
prepared to go that far. But I am persuaded
that the decision appealed is shown by the judgment delivered to have been
arrived at without sufficient regard being paid to the building blocks of the
reasoned judicial process, where the evidence on each issue is marshalled, the
weight of the evidence analysed, all tested against the probabilities based on
the evidence as a whole, with clear findings of fact and all reasons given."
The cross-appeal
[61] We propose to
consider this first, since, if it is well-founded, and Railtrack were not at
fault, the question whether any failure on their part caused or materially
contributed to the accident does not arise.
Before us it was common ground that the Lord Ordinary correctly
proceeded on the basis that the duty of care owed by Railtrack was as stated in
the passage referred to in Smith v LMS Railway Co: they were
under a duty at every level crossing where there was 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 nature of the precautions which were required and
the question whether the duty was fulfilled depending upon the circumstances of
each case.
[62] In considering
whether the Lord Ordinary correctly held that Railtrack were in breach of this
duty, we bear in mind a number of important points. Prior to the proof, the parties lodged a
Joint Minute, in which various matters of fact were agreed. The manner of construction and operation of
the level crossing were agreed in paragraphs 8 to 19, the terms of which are
reflected in the Lord Ordinary's findings in fact. Paragraphs 18 and 19 were in the following
terms:
"18. That
provided the instructions for operating the crossing were seen, understood and
obeyed by users, the level crossing could be used with safety.
19. That
in respect of the crossing at Moulinearn the position of the low level buttons
resulted in car drivers if using said buttons requiring to position their
vehicles in a position remote from the signs containing the instructions for
use and the miniature stop lights."
As has been seen, at paragraph [52] above, the Lord Ordinary
held that Railtrack might be criticised for introducing the driver's side
controls which were available to all drivers without repeating the instructions
on the second sign on a pole beside the controls. This, he held, 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. If they had repeated the instructions beside
the driver's side controls, they would have fulfilled their duty of reasonable
care. As can be seen from the terms of
the ground of appeal for Network Rail, it is not argued that the Lord Ordinary
erred in holding the failure to repeat the instructions to be a ground of
criticism. The argument is that the Lord
Ordinary erred in holding that it was a ground of criticism of Railtrack, having regard to the
statutory procedure under which the level crossing was designed and
constructed. It is therefore necessary
to start with an examination of the statutory context.
[63] Section 1 of
the Level Crossings Act 1983, as amended by the Level Crossings Regulations
1997 (SI 1997/487), Regulation 4, provides, so far as material for present
purposes:
"(1) Subject
to the following provisions of this section, the Secretary of State may, in
relation to any place where a railway crosses a road on a level (in this
section referred to as a 'level crossing'), by order provide for the protection
of those using the level crossing.
(1A) Subsection
(1) above applies whether or not the crossing is in use when the order is
made; and if it is not in use when the
order is made the order shall be made so as to come into force when it is in
use.
(2) An
order under this section may make such provision as the Secretary of State
considers necessary or expedient for the safety or convenience of those using
the crossing; and, in particular -
(a) may
require any such barriers or other protective equipment as may be
specified in the order to be provided
at or near the crossing, and to be maintained and operated, in accordance with
the order; and
(b) may
impose requirements as to the operation of the railway at or near
that
crossing.
...
(6) The
Secretary of State may make an order under this section in respect of a level
crossing on being requested to do so by the operator of the crossing or without
any such request, but he shall not make such an order without any such request
unless he has sent to the operator and to each local authority in whose area
the level crossing is situated a copy of a draft of the order he proposes to
make and a notice specifying the period (not being less than two months) within
which the operator or local authority may make representations to him in
respect of his proposal to make the order.
(6A) Where
the Health and Safety Executive gives written notice to an operator of a
crossing that in its opinion a request should be made to the Secretary of State
to make an order under this section in respect of that crossing and the notice
states the reasons for that opinion, the operator shall be under a duty to make
such a request."
In subsection (11), the expression "operator", in relation to
a crossing, is defined as meaning the person for the time being operating the
railway at the crossing. This of course
was Railtrack at the material time. The
expression "road" is defined as meaning any highway or other road to which the
public has access. It was not in dispute
that, although the road leading to Moulinearn was a private road, it was a "road"
within the definition, as it was a road to which the public had access.
[64] The original
section 1(3)(a) of the 1983 Act was repealed by Regulation 3 of the 1997
Regulations, which provided instead:
"(1) While
an order is in force under section 1 of the Level Crossings Act 1983 in
relation to a level crossing, whether or not that order was made before the
coming into force of this Regulation, the operator of the crossing shall ensure
that the order is complied with."
Contravention of paragraph (1) by the operator of the
crossing constitutes an offence, subject to the defence provided by paragraph
(2), which is not relevant for present purposes. By Regulation 1, the 1997 Regulations (with
the exception of Regulation 2(3)) came into force on 1 April
1997.
[65] The Railtrack
Moulinearn Level Crossing Order 1997 ("the 1997 Order") was made by the
Secretary of State for Transport at the request of Railtrack and in exercise of
his powers under section 1 of the 1983 Act.
It was dated 21 July 1997 and came into force on 31
July 1997. The procedure which preceded the making of
the order was as summarised by the Lord Ordinary (see paragraphs [15] to [23]
above). Paragraph 3 of the Order
provided that certain provisions, being provisions which in the opinion of the
Secretary of State were necessary or expedient for the safety or convenience of
those using the crossing, should apply in respect of the crossing. These included:
"(a) the
operator shall provide, operate and maintain so long as this Order
continues in force the barriers and
other protective equipment which are specified in Part I of Schedule 2 to this
Order ... ".
Part I of Schedule 2 contained detailed provisions, of which
the following paragraphs are of particular relevance:
"10.
The barriers shall be raised or lowered simultaneously by the operation
of push-button control switches situated on each side of each road approach and
adjacent to the traffic sign mentioned in Paragraph 12 below. The control switches, labelled 'raise' and 'lower'
together with instruction label 'push and hold' shall be located so that
barriers can be raised or lowered from each side of the crossing. The push switch shall require to be held
until either raising or lowering is complete. ... "
Paragraph 12 provided that a traffic sign of the size, colour
and type shown in a specified diagram should be provided on each side of the
crossing between the carriageway and wicket gates and should face outwards from
the crossing. Paragraph 14 provided
that immediately below this traffic sign there should be a traffic sign of the
size, colour and type shown in another specified diagram. The crossing was constructed in accordance
with this specification, the push-button control switches and traffic signs
being as described above at paragraph [38].
The 1997 Order was varied by the Railtrack Moulinearn Level Crossing
(Variation) Order 1998, made on 23 February 1998 and coming into force on 1
March 1998. This provided for the substitution of
paragraphs 16 and 18 of the 1997 Order with fresh provisions relating to signs
to be provided on the nearside of the road at each exit from the crossing, and
a sign to be provided on the A9 northbound carriageway approach to the
crossing. These paragraphs, as so
varied, are not relevant for present purposes.
Although an alternative interpretation of the 1997 Order was (somewhat
faintly) suggested to us by counsel for Miss Rogerson, it is clear that only
one set of the two signs specified in paragraphs 12 and 14 of the 1997 Order
was authorised to be provided on each side of the crossing, and accordingly
that the crossing as constructed was in conformity with the Order.
[66] Counsel for
Network Rail submitted that it would be contrary to the Order for Railtrack to
erect any other sign. Their discretion
was fettered, because they had as a matter of law no choice but to comply with
the Order. While the statutory scheme
did not relieve Railtrack of their duty at common law, on a legal analysis,
whatever options they had before the making of the Order, they ended with the
Order. Once the Order was made, one
should look to the party who made it, i.e. the Secretary of State, whose
responsibility it ultimately was.
[67] Counsel sought
to derive support for this approach from a number of authorities. In Phelps
v Hillingdon London Borough Council
[2001] 2 AC 619, Lord Clyde said at page 673, under reference to the position
of education authorities under the Education Acts:
"The question arises whether the
common law duty can or cannot stand in the face of the statutory context. But while no common law can stand in
contradiction of some statutory provision, and it may be hard to impose a duty
of care in the exercise of a statutory power ..., the existence of a statutory
background against which the professionals are exercising their particular
skills should not inhibit the existence of a common law duty of care."
In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson said at page 739:
"[I]n my judgment a common law duty
of care cannot be imposed on a statutory duty if the observance of such common
law duty of care would be inconsistent with, or have a tendency to discourage,
the due performance by the local authority of its statutory duties."
At page 765 he also said:
"Although, as I have said, it is
impossible to impose a common law duty of care which is inconsistent with, or
fetters, a statutory duty, I can see no legal or common sense principle which
requires one to deny a common law duty of care which would otherwise exist just
because there is a statutory scheme which addresses the same problem."
The case of Great
Central Railway Company v Hewlett[1916]
2 AC 511 related to a structure erected by the railway company in the public
highway, in exercise of powers conferred by a special Act. The action was brought by the driver of a
vehicle which was damaged in a collision with the structure at night. Lord Parker of Waddington said, at page 519:
"My Lords, it is undoubtedly a
well-settled principle of law that when statutory powers are conferred they
must be exercised with reasonable care, so that if those who exercise them
could by reasonable precaution have prevented an injury which has been
occasioned, and was likely to be occasioned, by their exercise, damage for
negligence may be recovered. To bring
this principle into play in the present case the company must be shown to have
been exercising a statutory power the exercise of which was likely to occasion
and did occasion the collision. ... Is the principle relied on really applicable
under these circumstances? In my opinion
it is not. It seems to me that for its
application the company must be doing something involving risk to others
without taking reasonable precautions to obviate such risk. Here the risk arises, not from what the
company is doing, but from the existence of the gateposts legalized by the Act
coupled with the diminution of light necessitated by the exigencies of the war."
Lord Sumner said at page 524:
"Here the authority is specific and
precise: the thing authorized is not an
activity at all; the section [of the special Act] leaves the railway company no
selection or choice."
[68] Counsel for
Miss Rogerson founded in particular on the Australian case of Voli v Inglewood Shire Council [1963] ALR 657 (summarised in Jackson and Powell on Professional Liability,
6th edition (2007), para. 9-201).
Architects designed a stage which collapsed because the joists
supporting it were insufficiently strong.
The High Court of Australia held that it was no defence for the architects
to point to the fact that their design had been passed by the Public Works
Department. Windeyer J. said, at
paragraph 16:
"The facts of the present case really
do not admit of the conclusion that the architect was freed of liability to
persons in the position of the appellant when his plans were approved by the
Public Works Department. No doubt the
fact that his plans were approved by a public authority may, in some cases, be
relevant in considering whether or not an architect was in fact negligent; but
that is a very different thing from saying that by obtaining approval in this
case the architect shed all liability for negligence. The approval of the Public Works Department
was required ... But that does not mean that the officers who examined the plans
undertook to correct the architect's errors."
[69] In considering
these submissions, we take as our starting point that there was no dispute
between the parties that the test was as stated in Smith v LMS Railway Co.,
that is to say that Railtrack had a duty to take all reasonable precautions to
reduce the danger to members of the public who might have occasion to use the
level crossing. The approach in Voli v Inglewood Shire Council appears to us to be of assistance, and to
be consistent with the authorities relied upon by counsel for Network
Rail. No doubt the court cannot impose a
duty that flies in the face of a statutory requirement, but among the
particular circumstances to which regard requires to be had is the question how
the statutory requirement came into existence.
Railtrack were no doubt under a statutory duty to comply with the 1997 Order,
but that is to put the matter too simply.
The Order was made at the request of Railtrack, in accordance with the
statutory procedure, as operators of the crossing, and they were closely
involved at every stage prior to its making.
It cannot be suggested that at these stages they were not subject to the
above duty of care. Others were of
course involved also, and their involvement, in particular their assessment of
the safety aspects of the layout of the crossing, is of relevance to the
question whether Railtrack were in breach of this duty. But if, as the Lord Ordinary held, the
failure to repeat the instructions beside the driver's side controls constituted
a ground of criticism, it is a ground of criticism for which Railtrack must at
least share responsibility. They cannot
be heard to say that the making of the Order relieved them of all liability for
negligence in the devising of the layout.
Moreover, although what we have said so far is enough to justify the
Lord Ordinary's view of this matter, Railtrack's responsibility did not cease
with the making of the Order. Their duty
of care was continuous, and if in the light of experience of its operation any
change in the layout of the crossing seemed appropriate, it was Railtrack's
resposibility, in discharge of that duty, to request a variation of the 1997
Order. This was indeed done in 1998,
albeit in respects not otherwise relevant for present purposes. The Lord
Ordinary's findings about the three "near misses" between 1997 and 1999,
referred to in particular at paragraph [23] above, are of particular relevance
in this context, although in the absence of more detailed findings it is not
possible to reach a conclusion as to what steps might have been taken had
Railtrack complied with their own safety standards.
[70] There was thus
scope for Railtrack, in discharge of their duty of reasonable care, to request,
at all material times, a requirement that the instructions be repeated beside
the driver's side controls. This is the
main respect in which the present case falls to be distinguished from that of Great Central Railway Company v Hewlett (see paragraph [67] above). The principle to be derived from that case is
that when statutory powers are conferred they must be exercised with reasonable
care, so that if those who exercise them could by reasonable precaution have
prevented an injury which has been occasioned, and was likely to be occasioned,
by their exercise, this constitutes negligence, and the person thus injured
will be entitled to reparation therefor.
This principle is applicable in the present case. It was also held in Great Central Railway Company v Hewlett that for the application of this
principle the company must have been doing something involving risk to others
without taking reasonable precautions to obviate such risk. In that case, the risk did not arise from
what the company was doing, so that there was no failure to exercise reasonable
care and hence no negligence on its part.
In the present case, by contrast, the risk arose from Railtrack's
operation of a level crossing, that is to say from what Railtrack were doing,
an operation which gave rise to inherent risks.
It lay in their power, in the exercise of reasonable care, to do more to
minimise these risks than they in fact did.
In our judgment, therefore, for these reasons, the cross-appeal for
Network Rail is not made out. In
reaching this decision, however, we recognise also the specific reason why the
Lord Ordinary held that Railtrack might be criticised for not repeating the
instructions beside the driver's side poles.
This was because they 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. This is of major significance in our
consideration of issues of causation.
The reclaiming motion
[71] We turn now to
the reclaiming motion for Miss Rogerson.
In so doing, we bear in mind three important considerations. In the first place, as noted at
paragraph [5] above, Miss Rogerson has lodged an undertaking that she will
not attack the decision of the Lord Ordinary so far as it relates to the
finding that she was negligent, as more fully set out in the Lord Ordinary's
Opinion. It follows from this that Miss
Rogerson does not seek to displace the Lord Ordinary's findings, set out at
paragraph [40] above, that she 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 Mr Thomson. She
also does not seek to displace the finding, set forth at paragraph [42] above,
that at the very least her experience of waiting with Mr Thomson at the A9 side
of the crossing in the dark for over half an hour in December 2000 because the
klaxon was sounding ought to have alerted her to the presence of the warning
system and the possibility that barriers could be raised when the warning
system was in operation. Moreover, she
does not seek to displace the finding, set forth at paragraph [43] above, that
on the day of the accident she did not look around for instructions on whether
to cross the railway or to operate the controls or for any red or green light,
but was content to act on Mr Thomson's prompting to raise the barrier and
attempt to cross the railway; and that in so acting she failed to keep a proper
look out and to have regard to the red MSL and instructions and thus failed in
her duty of care. Secondly, she does not
invite us to reverse the Lord Ordinary's adverse findings about her
reliability, set forth at paragraph [46] above.
Thirdly, it is apparent from the grounds of appeal for Miss Rogerson,
quoted at paragraph [58] above, and as was also clear from her counsel's
submissions to us, that she does not seek to bring under the review of this
court the Lord Ordinary's primary findings in fact, or his assessment of the
evidence upon which he based those findings.
Rather, the challenge is to the inferences which the Lord Ordinary drew
from those findings in fact.
[72] It is with
these considerations in mind that we now turn to consider the grounds of appeal
for Miss Rogerson. In doing so we record
that during the hearing before us extensive reference was made to the Notes of
Evidence. We have of course carefully
considered the passages referred to, but we see no need to repeat them
here. We are satisfied that the Lord Ordinary
has given a full and accurate account of the evidence which appeared to him,
and appears to us, to be relevant to his decision. We therefore propose to concentrate for the
most part on his process of reasoning.
The Lord Ordinary's finding that Mr Thomson heard the klaxon
[73] As is obvious,
and is recognised in paragraph 1.1.1 of the grounds of appeal, Mr Thomson is
dead and there is no direct evidence that he heard the klaxon sounding prior to
the accident. It is therefore
necessarily a matter of inference whether he did hear it. It is not in dispute that, as stated in paragraph
1.1.2, the klaxon was intended (at least primarily) to warn pedestrians and not
motorists or people in cars. Equally,
however, if a person in a car, whether driver or passenger, did in fact hear
the klaxon, it would serve as a warning of the approach of a train. It is not in dispute that, as the Lord
Ordinary held, Miss Rogerson and Mr and Mrs Clegg did not hear the klaxon. But, as was accepted at the hearing before
us, of the four adults in the two cars, Mr Thomson was the best placed to hear
the klaxon. He was in the front
passenger seat of the foremost of the two cars and was thus nearest the
klaxon. His window was opened and then
closed by Miss Rogerson. It was
suggested to us that traffic noise on the adjacent A9 might have affected the
audibility of the klaxon to someone in Mr Thomson's position. But this possibility, speculative as it is,
needs to be weighed against the fact that the klaxon was heard by Mr Michie in
his garden, about 60 metres from the crossing on the Moulinearn side (see
paragraph [38] above). Mr Michie also
gave evidence that when he used the crossing he could hear the klaxon from
inside his car, especially if the window was open. Another witness, Mr Herbertson, husband of
the Mrs Herbertson referred to at paragraph [9] above, a retired railway
signalman who lived with his wife in a house near the crossing, gave evidence
to a similar effect. One approach to
testing the matter would be by reference to the conclusions that might be drawn
by an independent bystander at the scene of the accident. On the basis of the primary evidence before
the Lord Ordinary, and accepted by him, we see no reason why such an
independent bystander should not have concluded, before the car moved off, that
Mr Thomson had heard the klaxon. In our
opinion, there was ample evidence, only some of which is referred to above, to
justify the Lord Ordinary's conclusion that he did.
[74] Of course, the
most eloquent fact which might serve to militate against such a conclusion is,
as is reflected in ground of appeal 1.1.4, that Miss Rogerson did start to
drive the car across the crossing. The
argument on her behalf is that if Mr Thomson had heard the klaxon he would have
warned her, for the protection of all three occupants of the car. There are, however, as it appears to us,
insuperable difficulties in concluding what did and what did not pass between
Mr Thomson and Miss Rogerson in the moments before the accident, and the Lord
Ordinary did not attempt to do so, beyond his findings summarised above. Given that Mr Thomson is dead, and given the
Lord Ordinary's finding, which she did not seek to challenge before us, that
Miss Rogerson's evidence was unreliable in several respects (see paragraph [46]
above), there is no evidential basis upon which it would be open to us to reach
a view contrary to that of the Lord Ordinary, that is to conclude that Mr
Thomson did not hear the klaxon, even if we were persuaded, as we are not, that
there is scope for interference with the Lord Ordinary's conclusion that Mr Thomson
did hear it. In the passage in his
Opinion, reflected at paragraph [46] above, in which he assessed Miss Rogerson's
reliability, the Lord Ordinary said that
"her acts ... 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."
Given these findings, it is a matter of speculation, and no
more than that, why, if he heard the klaxon, Mr Thomson did not impart that
information to Miss Rogerson. The Lord
Ordinary did not engage in such speculation, and it would be entirely
inappropriate for us to do so. Rather,
we are satisfied, on the basis of the evidence as a whole, that the Lord
Ordinary's reasoning which led him to the conclusion that Mr Thomson did hear
the klaxon cannot be faulted. Counsel
for Miss Rogerson submitted that the Lord Ordinary had not looked at the
totality of the evidence. If he had
properly weighed up the evidence and had looked at the probabilities he would
inevitably have come to a different view.
His approach, it was submitted, led to an absurdity. For the reasons we have given, we are unable
to accept these submissions. In any
event, even if we were to decide that it was open to us to interfere with this
conclusion, there is no evidential basis upon which we would feel able to reach
a contrary conclusion, and at best for Miss Rogerson the matter would have to
be left undecided. In our judgment, the
finding that Mr Thomson heard the klaxon should stand.
The Lord Ordinary's finding that, if Railtrack had repeated
the instructions beside the driver's side controls, Miss Rogerson would
probably not have taken heed of them
[75] So far, we
have discussed the Lord Ordinary's finding that Mr Thomson heard the klaxon
without reference to the relevance of this finding to the question whether a
causal connection was established between Railtrack's failure to repeat the
instructions beside the driver's side controls and the circumstances of the
accident which was, at least partly, caused by the fault of Miss Rogerson. In considering this question, it is necessary
to repeat the respects in which the Lord Ordinary found Miss Rogerson to have
been at fault, which she does not seek to challenge in this reclaiming
motion. He found that she 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 Mr Thomson. He did not accept her evidence that, if there
had been instructions at the driver's side controls, she would probably have
taken heed of them and desisted from crossing.
On the contrary, she failed to apply her mind to the issue of safety and
relied unduly on Mr Thomson's instruction to raise the barrier and cross the
railway. In their submissions to us,
counsel for Miss Rogerson accepted that she was acting under the guidance and
on the instructions of Mr Thomson, at the point that the decision was taken to
cross the railway; and in any event to argue the contrary would have been
inconsistent with her undertaking not to attack the decision of the Lord
Ordinary so far as it relates to the finding that she was negligent.
[76] It is no doubt
because of this that counsel sought to develop a submission that had the
warning sign been repeated at the driver's side, Mr Thomson would have known to
look for the red light on the MSL. This
is a submission which, in our opinion, it is not open to Miss Rogerson to
advance in this reclaiming motion and, in any event, it appears to us to be
unsound. Miss Rogerson's case of fault
against Railtrack on record is directed to the risk that a driver might operate
the controls, raise the barriers and proceed onto the crossing, in
circumstances where a train was approaching, without noticing the MSLs. Her pleadings include the sentence: "There was a risk that such drivers would
drive into the path of an oncoming train, as did in fact occur." This was the case which the Lord Ordinary had
to consider, and this is the context in which he made the finding that if the
instructions had been repeated beside the driver's side controls, this would
have served to direct the attention of the driver, who was concentrating on
these controls, to the MSLs as the principal safety device. There was no basis in Miss Rogerson's pleadings
for the Lord Ordinary to make a finding as to whether a causal connection was
established between Railtrack's fault and Mr Thomson's state of knowledge, and
indeed the Lord Ordinary was not asked by counsel to make any finding in this
respect.
[77] In any event,
in the circumstances of this case, the state of Mr Thomson's knowledge about
the safe operation of the level crossing does not appear to us to be of
relevance to the question whether there was a causal connection between
Railtrack's fault, to the limited extent that the Lord Ordinary held that they
were at fault, and the circumstances of the accident. Railtrack were at fault because, but only
because, they failed to repeat the instructions beside the driver's side
controls and thus failed to exercise reasonable care to direct the attention of
the driver, who was concentrating on these controls, to the MSLs as the
principal safety device. There is no
case directed against them that in addition they failed to exercise reasonable
care to direct the attention of a passenger in a car to the MSLs as the
principal safety device. Such a case
would have involved enquiry into the question whether it was reasonably
foreseeable that a driver, instead of applying his or her mind to the available
information about the safe use of the crossing, would instead rely upon
guidance by and instructions from a passenger.
This of course is the very respect in which the Lord Ordinary found Miss
Rogerson to be at fault: instead of
looking around for instructions, she was content to act on Mr Thomson's
prompting, and in so acting she failed to keep a proper look out and have
regard to the red MSL and instructions and thus failed in her duty of
care. It is because of this finding,
above all, which Miss Rogerson does not seek to displace, that we do not
consider that the state of Mr Thomson's knowledge has any relevance to the
question whether the failure of Railtrack materially contributed to the
accident.
[78] We have
reached the conclusion that there are insuperable obstacles to Miss Rogerson's
attempt to secure a contribution from Network Rail. The Lord Ordinary has held that she 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 Mr Thomson, and
she does not seek to displace this finding.
Likewise she does not seek to displace the finding that she was content
to act on Mr Thomson's prompting to raise the barrier and attempt to cross the
railway, and in so acting failed to keep a proper look out and to have regard
to the red MSL and instructions and thus failed in her duty of care. The Lord Ordinary found her evidence to be
unreliable in several respects, and did not accept her evidence that, if there
had been MSLs and a sign with the instructions of 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.
He found that her acts 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.
Moreover, the Lord Ordinary attached significance to the incident in
December 2000 when Miss Rogerson and Mr Thomson waited at the A9 side of the
crossing in the dark for over half an hour in December 2000 because the klaxon
was sounding. He held that it was highly
unlikely that she did not see the red MSL when she spent between 30 and 40
minutes in a car in front of the barrier.
In addition he held that she would have realised from her experience of
this incident that the barrier might be raised when the warning system was
on. Given the state of the evidence, the
Lord Ordinary's assessment of Miss Rogerson's reliability, and above all his specific
findings of fault on her part, there appears to us to be no room for displacing
the Lord Ordinary's decision on what he rightly characterised as "the critical
question in this case", in deciding that he was not persuaded that the absence
of instructions at the driver's side controls had any part to play in the
causation of the accident.
[79] For these
reasons it is clear to us that Miss Rogerson has not satisfied the tests
provided by Thomas v Thomas, Hamilton v Allied Domecq plc
and Heffer and Another v Tiffin Green, quotations from which are
set out at paragraph [60] above. Both
his primary findings in fact and the inferences which he derived from them, so
far as under attack in this reclaiming motion, appear to us to be supported by
the evidence which he was entitled to accept, and his decision appears to us to
have been arrived at with sufficient regard to "the building blocks of the
reasoned judicial process".
Decision
[80] For these
reasons we have decided to refuse the reclaiming motion and the cross-appeal
and to adhere to the Lord Ordinary's interlocutor of 19 August
2005.
