The Level Crossing Hazard - Part 3

In Newsletter 49 I wrote that a third part of this series ought to wait until the Rail Accident Investigation Branch (RAIB) published its Report into the fatal accident at Halkirk. This is still awaited, but in the meantime an important development in the area of LX regulation has taken place. As a result of a great deal of behind-the- scenes lobbying by many of the key safety players within the rail industry The Law Commission and The Scottish Law Commission have published a Joint Consultation Document examining the whole legal framework of LXs. The Consultation is open until 30 November.

The problem arises principally because of the very large numbers of Acts of Parliament governing LX use. The majority are Special and Local Acts authorizing construction, mostly dating from early in Queen Victoria's reign, and thought to number around 7000. As the number of new railways increased Acts were passed in 1845 and 1863 seeking to bring uniformity of wording, but with only partial success. The ultimate modern Act would seem to be the Health and Safety at Work Act 1974, but the lack of clarity is the heart of the problem. It is further complicated by the fact that both access and property rights play a big part, and these are of course widely different north and south of the Border. When a collision occurs the railway immediately encounters reputational risk - Network Rail or the Train Operator (or the heritage railway operator) are named in the press and suggestions that one or other (or their equipment) may have failed to act properly. The lights weren't working, or the Sun was dazzling (in other words the lights weren't bright enough); the train was going too fast or didn't sound its horn. The vehicle owner faces no such reputational risk - who, apart from locals, knows the identity of the employer of the slurry lorry which collided with a DMU in Suffolk today? This drip-drip of non-level-playing-field reporting (so much easier than actually discovering facts, especially with a deadline looming) has a disproportionately damaging effect on the railway.

When deaths occur they form a much larger proportion of the deaths for that mode in a full year if they are "rail" rather than "road" deaths. The rail industry sees some 300 deaths a year, of which probably 70% or more are suicides (or suspected suicides). The number of accidental deaths - passengers, workforce, trespassers and the public - is usually around 70. While this figure represents 70 tragedies it pales into insignificance beside the 3000 or so deaths annually on the roads. It is little wonder that Local Authority Roads and Highways Agency managers aren't impressed by costly plans to spend precious resources on saving a couple of lives when their assets kill so many more users. Here the reputational risk is non- existent. Who castigates the County Roads Department's named officers, or Elected Members, when a notorious sharp bend claims another life? Is it unrealistic to expect professional safety people in the Road and Rail industries to accept such widely different amounts it's appropriate to spend to save a life? Is my life in a train really worth 100 times as much as it is on the roads?

Another preliminary thought arises from reading the substantial part of the Consultation setting out How We Got Here. It's true that highways, bridleways and paths existed before the railway was built, and the building of the railway necessitated highway crossings being built, paid for by the railway. No-one would argue with that. But fast and heavy lumps of metal sped along railways long before anything heavier that a bullock cart, or faster than a horse, passed along a highway. Surely the invention of the motor car - in equity if not in law - obliged the Road industry to contribute much more towards managing the greater risk brought about by the subsequent increase in the speed and volume of road traffic. This rather obvious observation seems not to have been made before. It would be interesting to hear the views of others on this point.

There is a view going about that this Consultation will be an opportunity to improve LX safety at a stroke. It won't. What it will do is provide a clear framework for regulation, leading to better policing and, where needed, prosecution of offenders. That might improve safety by example, but any improvement is unlikely to be very great. The big change will come from proposals to make it easier, cheaper, and less cumbersome to close LXs. That is where real safety improvement will be found. We must hope that the Coalition Government and the Scottish Government find Parliamentary time to enact the various recommendations which will require primary legislation.