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James McKenzie Clegg and Another v. Jane Rogerson & Network Rail Infrastructure Limited [2007] CSIH NUMBER 87


Reclaiming Motion:- On 5 May 2001 a car driven by Miss Rogerson, the first defender, with her boyfriend Mr Thomson as the front seat passenger, and a three year old girl, Sarah Clegg, in the back seat, attempted to cross a level crossing. The crossing was operated by Network Rail, the second defenders. A train struck the car and Mr Thomson was killed and Sarah Clegg was seriously injured. Her parents, Mr and Mrs Clegg, the pursuers, were following in another car and in this action they sought damages for the depression and other mental disorders which they suffered as a consequence of the accident. The action was originally brought against Miss Rogerson as the sole defender, but she brought Network Rail into the process by third party procedure. The issue between the parties, before the Lord Ordinary, was whether 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. After proof, the Lord Ordinary awarded an agreed sums of damages against Miss Rogerson, but assoilzied Network Rail holding 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 a particular precaution, namely the provision of instructions at the driver's side controls, 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. Miss Rogerson reclaimed against this decision and Network Rail cross-appealed. Here the court considered whether (1) 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 submitted by Network Rail, the Lord Ordinary erred in law in holding that Railtrack failed in their duty to take reasonable care. Here the court considered the Lord Ordinary's assessment of Miss Rogerson's reliability, and his specific findings of fault on her part, and whether the absence of instructions at the driver's side controls had any part to play in the causation of the accident.