Robinson v Abellio Greater Anglia Ltd (t/a 'abellio Greater Anglia') [2018] EWHC 272 (QB)

Case No HQ16P00067[2018] EWHC 272 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 February 2018
Before
HIS HONOUR JUDGE MCKENNA
Between
Mr Matthew RobinsonClaimantAbellio Greater Anglia LimitedDefendant
Brian Cummins (instructed by Judkins Solicitors) for ClaimantDerek O’Sullivan QC (instructed by DWF LLP) for DefendantHearing Hearing dates: 5, 6, 7, 8 February 2018
JudgmentHHJ McKenna:Introduction
[1]Matthew Robinson, the Claimant, was, and is, a season ticket holder who regularly travelled to and from Bishops Stortford station (“the Station”) to Liverpool Station on his commute to work to London.[2]The Defendant, Abellio Greater Anglia Limited, was the relevant train operating company for the West Anglia line and it provided the service that ran from Liverpool Street to the Station while the Station and its infrastructure were the property of Network Rail.[3]On 13 January 2013 the Claimant travelled from Liverpool Street to the Station on the 18.24 service (“the Train”) which arrived into Platform 1 at the Station at about 19.04. The Train was a Class 379 train made up of 8 carriages, each carriage being some 20m long and was therefore some 160m long in total.[4]After the Train arrived at the Station, the Claimant alighted from the Train and a short time later he fell between the platform edge and the Train as the Train was in the course of departing from the Station.[5]As a result of his fall, the Claimant suffered very severe injuries including traumatic bilateral amputations.[6]This court is concerned with the issues of liability and contributory negligence arising from the accident.

Factual Background

[7]The Station has three platforms. Platform 1 is used for services towards Stanstead and Cambridge, Platform 2 is used for services to London Liverpool Street and Stratford and Platform 3 is used for trains that terminate at the Station. There are two entrances to the Station; one gaining access to Platform 1 and the other to Platforms 2 and 3. There are ticket barriers in place.[8]The track to Platform 1 has a concave curve along its entire length. As a result, it is not compliant with Railway Group Standard GM/RT2149 “Requirements for Defining and Maintaining the Size of Railway Vehicles” on stepping distances. This means that the safety measures in Railway Group Standard G1/RT7016 “Interface between Station Platforms, Track and Trains” are required. The measures to be considered are the provision of warning signs and platform markings, announcements and staff attendance (see paragraph 3.4.4). Both of these documents were published by the Rail Safety and Standards Board (“RSSB.”) The gap between a train and the platform edge is referred to as the Platform Train Interface (or “PTI”).[9]The platform edge is painted along its complete length with white marking with a width of 150mm which indicates the edge of the platform. In addition at a distance of 1.38m from the edge of the platform is a 100mm wide yellow line, the primary purpose of which is mitigation against the aerodynamic effect of trains passing through the Station. It is also used to assist in the management of passenger behaviour during the arrival and dispatch of trains.[10]In addition, the words “mind the gap” are painted in yellow at regular intervals along the platform surface and a member of staff is required to make a public address announcement reminding passengers to “mind the gap” when alighting from and boarding a train.[11]Three classes of train stop at the Station. They are referred to as the 315, the 317 and the 379 train. All three classes of train are driver only operation in the sense that there is no guard on board. The 315 and the 317, both of which are older trains than the 379, are dispatched from the Station with the assistance of a member of platform staff known as the Dispatcher whose role it is to ensure the dispatch of Class 315 and Class 317 trains. The Dispatcher is responsible for looking out for anyone in close proximity to the platform edge or the train and for taking action to prevent injury or interference with the safe dispatch of the train. He or she will, when he/she judges it safe so to do, give the driver of the train the signal to close the train’s doors (using the appropriate dispatch panel located on the platform) and ensure that the doors are closed with no obstructions and then, again when he/she judges it safe so to do, will give the driver the signal to proceed again using the appropriate dispatch panel. This completes the dispatch procedure as is made clear in the Defendant’s Location Specific Dispatch Method Statement dated February 2011 (page 5) (“the Method Statement”) although it goes on to provide that the Dispatcher will observe the train as it departs the station and until clear of the platform and will check that the rear cab lights are displaying red as the train passes and that he must observe the train until it had fully cleared the departing platform.[12]By contrast, the Class 379 train is a more modern train which entered service in 2011 and is referred to as a “Driver Only Operation-Passenger” (DOO-P) train. Like the Class 315 and 317 trains it has no guard but unlike the Class 315 and 317 trains, it is specifically designed to be dispatched from stations by the driver only without any input from station staff. Each carriage of a Class 379 train has external cameras fitted and each camera displays an image on two monitors situated in the driver’s cab. The two monitors for an eight carriage train will each display four images and they are situated on the driver’s right hand side and are used by the driver when dispatching the train.[13]It is common ground that all train companies operating over Network Rail infrastructure work to a common set of rules which are mandatory. These rules are contained in the “Rule Book” which provided as follows at paragraph 8.5 “Starting a DO train. When the train is ready to start, you must check the whole length of the train to make sure that it is safe to close the doors by using the close circuit television (CCTV) or mirror, if there is one. After you have closed the doors you must check that the door interlock light is lit. You must then carry out the train safety check. You must check the whole length of the train by using CCTV or mirror, if there is one.”[14]The Rule Book therefore stipulates that the driver, when he is ready to start the Train, should carry out three checks i) a check to make sure it is safe to close the door ii) a check that the door interlock light is lit and iii) a train safety check before he applies power and after the interlock light is lit.[15]In June 2011 the RSSB published Rail Industry Standard 3703-TOM Issue 1 which provided a rail industry standard in relation to the train safety check. Section 2.2 introduced the concept of a “Dispatch Corridor” which encompassed the length of the train, the gap between the train and the platform and at least 1500mm of the platform measured from the platform edge and extending to at least the height of the doors. The primary purpose was expressed to be to check that nothing or nobody was potentially trapped on the outside of the train that might be dragged along the platform when the train departs. The ROS states that there should be no blind spots so that during the train safety check the person responsible for dispatch would have a clear view.[16]GN37 of RIS3703 - TOM that:
“Train Dispatch procedures should include the management of the dispatch corridor especially in those circumstances where there is not a clear gap between passengers and the train.”
[17]On the evening of 13 January 2013, Mr Wilson was the driver of the Train and Mr Perkins, a relief platform supervisor, was on duty and acting as Dispatcher in the case of Class 315 and 317 trains but not 379 trains. He was, however, located on Platform 1 when the Train arrived and was dispatched, but not for train dispatch duties. He was positioned on the Cambridge side of the exit gates some 60m or so from the point at which the Claimant fell through the gap between the Train and the platform.[18]The Claimant travelled to and from the Station on his commute to work in London on a daily basis, holidays, sickness and the like excepted, for some 9 years. As such he was familiar with the platform and, as he accepted in his evidence, he was aware that the gap between the platform edge and the Train, that is to say the Platform Train Interface generally was substantial and that the Train had a hustle alarm to signal the imminent closing of the doors and therefore that the Train would be leaving the Station shortly after the shutting of its doors.[19]On the evening of 13 January 2013 it was the Claimant’s evidence, the substance of which I accept, that when passing Harlow Town station he phoned his mother to make arrangements for her to meet him at the Station and to drive him home. Before that, he had been listening to music but had taken his earphones off when he made the telephone call and put them in his jacket pocket and he hadn’t put them back on again.[20]On arrival at the Station the Claimant disembarked from carriage 7 and walked towards the ticket barriers and the exit but on reaching the ticket barriers he could not find his wallet containing his season ticket. He was, he said, very concerned because if lost, he ran the risk of incurring a fine for travelling without a valid ticket and the much larger cost of replacing his season ticket (which cost in excess of £3,000). This concern was heightened by the fact that he had previously had to replace a lost season ticket. He readily admitted that as a result he was stressed and agitated. He jogged back to the Train and mistakenly entered carriage 6 rather than carriage 7 to look for his wallet. On hearing the Train’s hustle alarm, he realised that the doors were about to close and so left the carriage and walked again towards the ticket barriers. Before reaching the ticket barriers he turned around and jogged back down the platform towards carriage 7. After the train had started to move off the Claimant moved towards the train and began moving along side the moving train looking through the windows of the carriage to see if he could spot his wallet. As he did this he was aware of the Train starting to move off. His right foot then slipped on the edge of the platform and he fell through the gap between the moving Train and the platform edge suffering significant injury.[21]It was the Claimant’s evidence that he did not recall there being any distinctive yellow markings on the platform and was unaware of any “mind the gap” announcements that day although he did accept that he had heard such announcements on what he described as an infrequent basis in the past.[22]The driver of the Train was at all material times unaware of the accident and the Train continued to pull away from the Station.

The Issues

[23]The Particulars of Claim make numerous and wide ranging allegations of breach of duty against the Defendant but, by the time of the trial, the claim had become much more narrowly focused. Thus it was no longer sought to be argued, for example, that: i) running a train service at the Station was negligent in itself by virtue of the size of the Platform Train Interface and/or the stepping distance; ii) platform edge gap fillers or other screens or physical barriers, advocated by Mr. Danks, should have been deployed and iii) that driver only operated trains should never be used.[24]The thrust of the Claimant’s case was the allegation that the Defendant failed in its duty to devise suitable and sufficient control measures to reduce the risk of an accident or injury to the lowest level reasonably practicable in order to protect members of the public when the Train was being dispatched. Specifically it was said on the Claimant’s behalf that the Method Statement and the Train Dispatch Risk Assessment processes undertaken by the Defendant were wholly inadequate resulting in the Defendant’s failure to implement one of the control measures, namely staff attendance, recommended by Railway Group Standard G/RT/7016. Moreover the Defendant’s blanket policy, in respect of Class 379 trains, of excluding platform staff from any role in the dispatch process which led to there being a period of up to 34 seconds from release of the brake until a Class 379 train had fully departed the Station in which the driver was unable to undertake any observation was defective. Had the control measure been in place the Claimant’s behaviour could have been observed, some sort of warning given and acted upon and the accident could thereby, on the balance of probabilities, have been avoided.[25]There are also specific allegations made as to what the driver and/or Mr Perkins ought to have observed and as to the Defendant’s system for observation of the dispatch corridor for Class 379 trains and in particular the positioning of Mr Perkins.[26]Finally, should the Claimant succeed in establishing breach of duty and causation then the Defendant pursues a claim for contributory negligence.

The Law

[27]There is no dispute between the parties as to the relevant law and indeed both parties referred me to a very useful recent survey of the relevant law in the rail industry context in the judgment of Hickinbottom LJinWhiting v First/Keolis Transpennine Ltd [2018]EWCA Civ 4 and in particular to paragraph 64 which is in these terms:
“…I accept – as did Mr Rawlinson – that train staff owe a duty of care to customers and others who may be on a station platform in close proximity to a train. A moving train is an inevitable hazard, particularly when in a station where there may be people on the platform without any barrier between them and the train as it moves away. There is an inherent risk involved a risk which is increased when those on the platform include children, people who are or may be drunk, and /or others who are more likely to put themselves in danger. The guard (or any other person who is responsible for the train moving away safely) is not required to guarantee the safety of those who are on the platform: he must take a reasonable view of the risk posed to those to whom he owes a duty of care, in all the circumstances. It is important that the courts do not impose too high a duty of care upon those involved in services, such that their jobs become unreasonably difficult and it becomes unreasonably difficult for the provider to maintain an efficient service.”

The Evidence

[28]So far as oral evidence is concerned, the court has had the benefit of hearing from the Claimant and on behalf of the Defendant from a number of witnesses including John Wilson, the driver, Mr Perkins, Kevin Walton, the Defendant’s area customer service manager, Mr Belcher, the Defendant’s risk and safety adviser, Mr Thompson, the Defendant’s Head of Safety and Environment, Mr Alderman, a driver manager employed by the Defendant, who was qualified to carry out risk assessments and who, together with Mr Walton (who was responsible for the drafting of the Method Statement,) prepared the Train Dispatch Risk Assessment .[29]In terms of expert evidence the court has read a great deal of material in the form of reports, joint statements and replies to part 35 questions from Mr Danks instructed on the Claimant’s behalf and Mr Metcalfe instructed on the Defendant’s behalf.[30]It is fair to say that, given the narrowing of the issues between the parties, there has been a substantial reduction in the assistance which the expert can give to the court. However, both parties continue to rely on their respective experts’ contrasting views and whilst I have no doubt that both experts have been doing their best to assist the court I have no hesitation in preferring the opinions of Mr Metcalfe to those of Mr Danks where they disagree. Mr Metcalfe has a wealth of relevant experience in the rail safety field not least as a result of his having been head of safety in British Rail’s Safety Directorate whereas Mr Danks has no relevant expertise to support his somewhat trenchant and extreme views that the rail industry’s approach is inherently flawed. His championing of physical barriers or alternatively the deployment of significant numbers of platform staff to provide manual supervision to eliminate risk, rather than to reduce this risk to the lowest reasonably practicable level, without any consideration of cost or proportionality to risk undermined confidence in his opinions more generally.[31]I remind myself that the standard of care is to be set by the court on the evidence before it and that the court is not bound by expert opinion or indeed by practice in the industry. Nevertheless, in my judgment Mr Metcalfe accurately stated practice within the rail industry and provided a very careful analysis and I have no hesitation in accepting the substance of his opinions.[32]There is a substantial volume of CCTV material showing the events leading up to the Claimant’s unfortunate accident and the court has had the great benefit of viewing that material as well as considering a CCTV/images bundle containing stills of the captured images.[33]The CCTV material includes images captured from various cameras mounted on the exterior of the Train to which I have already referred and in particular the cameras mounted on carriages 6 and 7, CCTV images from cameras located within the Train and from cameras located on the platform.[34]The most relevant footage is footage from the external camera mounted on carriage 6 of the Train and which runs from the time that the Train arrived at the Station all the way through to the time that the Train departed and depicts most of the relevant events. It can be viewed frame by frame, in normal time or speeded up. The timings on the Train CCTV are broken down into hours, minutes, seconds and hundreds of seconds.[35]The internal footage from carriage 7 shows passengers getting off the Train when it arrives at the Station and the Claimant can clearly be seen as one of the first passengers to leave the carriage.[36]CCTV recovered from the cameras located on the platform are time delayed images with four images being displayed on a split screen. They are not synchronised with the Train’s CCTV footage, there being about a two second difference. Nevertheless they do show various relevant images of the Claimant and, for example, the location on the platform and direction of view of Mr Perkins. The images from the platform located cameras were not, of course, available to the driver of the Train, nor were they monitored. It is also to be noted that cameras are located about 10ft or so off the ground and therefore do not show Mr Perkins’ line of sight and it has to be born in mind that he would have had a more restricted view at platform level.[37]In addition, the Train also had an On Train Data Recorder which recorded the actions of the driver when he engaged the brakes, opened and closed the doors and applied power.[38]It is common ground that the CCTV images displayed on the two monitors in the driver’s cab would, by design, have ceased displaying when the Train reached 3mph/5kph that is at about 19:05:32 (the train having begun to move at about 19.05.29. The reason for this is said to be that once the Train starts to move the driver’s attention must be focussed on the signals and track ahead.[39]The CCTV evidence plainly provides the best evidence, given the passage of time since the events with which the witnesses’ evidence is concerned. Moreover, as the case has developed and the issues narrowed, the role of the expert evidence has diminished.[40]As a result of consideration of the CCTV evidence it is clear that the sequence of events leading to the Claimant’s accident is as follows, adopting the timings on the external carriage CCTV footage [which as stated above is not synchronised with the station CCTV]:• 19:04:08 or thereabouts - The Train stops at the Station.• 19:04:10 - The passenger doors are released.• 19:04:13- The Claimant alights from the leading door of carriage 7 and walks towards the exit and ticket barriers along with a considerable number of other passengers.• 19:04:45 - The Claimant reached the ticket barriers and appears to be looking for something, (namely his wallet containing his season ticket.)• 19:05:01 onwards – The Claimant can be seen walking and then jogging back down the platform. He returns to the Train and enters carriage 6. There are a number of passengers on the platform between the Claimant and Mr Perkins.• 19:05:05 to 19:05:09 - The Claimant can clearly be seen going back and forth within carriage 6 looking for something (his wallet and season ticket.)• 19:05:16 - The Claimant steps off the Train onto the platform for a second time and starts to walk towards the ticket barriers. He is on the platform side of the yellow line and also on the train side and then back on to the platform side. At this time there are still a significant number of passengers on the platform and the dispatch process has yet to begin.• 19:05:16 - The driver operates the door close push button to close the passenger doors. This initiated the hustle alarm for approximately 2 to 3 seconds before the doors closed. The external carriage “doors open” lights were extinguished. At this point the Claimant can be seen walking away from the Train.• 19:05:19 - A passenger carrying an umbrella (“Umbrella Man”) can be seen walking purposefully down the platform towards the rear of the Train. He is between the yellow line and the platform edge. The Claimant can be seen walking along the platform towards the exit crossing the yellow line.• 19:05:23 or thereabouts - The Claimant turns round. Thereafter at 19:05:24 a man can be seen with a rucksack together with the Claimant to the right of the yellow line and a number of other passengers are also visible.• 19:05:23 - Door interlock is engaged, that is to say all the passenger doors were closed and locked. At this point the Claimant was on the platform side of the yellow line.• 19:05:25 – The driver applies power to start the Train. At about this time Umbrella Man can be seen walking along the platform with his umbrella in his right hand and the tip of his umbrella striking the yellow line. He is clearly walking purposefully without deviating in the direction of the London end of the platform. His appearance in my judgment is utterly commonplace at a railway station in rush hour and therefore unremarkable.• 19.05.29 - The Claimant is on or about the yellow line. He can be seen jogging in front of Umbrella Man and stepping inside the yellow line, that is to say towards the moving Train. He can be seen hunched or crouching and his attention is clearly directed into the carriage as he continues to walk parallel to the Train which is plainly moving at this time.• 19.05.29 – The Train starts to move.• 19.05.30 – The Claimant turns and moves towards the train crossing the yellow line.• 19:05:33 - The Claimant can be seen placing his right foot on the platform edge and thereafter he falls by which time the evidence is, which I accept, that the monitors in the driver’s cab would already have switched off (approximately 3 seconds after the Train started to move when it reached 3mph/5kph)

Discussion of the Issues

[1]The Driver[41]What is said in respect of the driver is that he failed to observe and/or notice and/or act upon the Claimant’s conduct in walking backwards and forwards across the platform, getting back onto the Train and then off again. Equally he did not notice or react to anyone else such as Umbrella Man walking in the dispatch corridor.[42]To my mind there is no justification for this criticism.[43]Mr Wilson in his evidence explained that the Train was on time and the journey to date had been uneventful. The Train was busy which was unsurprising given that it was travelling at a peak time. Having released the doors he watched passengers getting on and off and, once everyone had got off, he pressed the door close button which caused the hustle alarm to sound a warning that the doors were about to close. At that stage there was no one near the side of the Train or the doors whom he considered was in a position of danger. He explained that he did not notice the Claimant in particular at any time whilst at the Station. He accepted that it would be unusual for someone to get off and then on and then off a train but did not see the Claimant undertake those manoeuvres. Nor was he concerned simply with passengers being in the dispatch corridor. As he commented it happened all the time and his concern was with their behaviour rather than their mere presence.[44]As the doors closed he was able to view, on another small monitor, progress as each door closed. A light turned from red to blue and once all were blue a door interlock light was illuminated to indicate that all the doors were closed.[45]In his witness statement and in his oral evidence Mr Wilson explained that after the interlock light was lit he carried out his train safety check. He looked within the dispatch corridor and there was nothing and no one obstructing the doors and no one acting in what he considered to be a potentially unsafe manner. Had he, for example, seen someone making a last minute dash to the side of the Train to get on or someone who was obviously inebriated then that would have been the sort of activity that would have resulted in him halting the dispatch process. It is plain from the CCTV footage that the Claimant was not in fact in the dispatch corridor when Mr. Wilson carried out the train safety check. After that, he checked the signal for which purpose he had to look ahead and he then released the brake. From the evidence it is clear that power was taken up at about 19:05:25, some 2 seconds or so after the interlock light was lit at 19:05:23 or so. Mr Wilson also explained that as he released the brake he glanced back at the two monitors, although such action is not mandatory, and saw nothing which caused any concern.[46]Mr Wilson has reviewed the CCTV footage and commented specifically about Umbrella Man. In summary he said that his position and conduct was not out of the ordinary and did not cause him to halt the dispatch process since that sort of conduct could be seen on a daily basis and was a long way short of dangerous behaviour close to the side of the Train.[47]For my part I have no hesitation in accepting the substance of Mr Wilson’s evidence and am satisfied, on the balance of probabilities, that Mr Wilson complied with the train dispatch procedures required by the Rule Book and the Defendant’s train dispatch instructions (and carried out the train safety check between 19.05.23 and 19.05.25). Whilst not in any way determinative, the issue being one for the court, it is to be noted that both Mr. Danks and Mr. Metcalfe agreed that Mr. Wilson did so comply.[48]Nor do I consider that there can properly be any criticism of Mr Wilson for not in fact having noticed the Claimant in particular at any time prior to the cutting out of his monitors. Even if Mr. Wilson had seen the Claimant when he was jogging, such behaviour, when not viewed through the prism of hindsight, would have been considered to be unremarkable. Equally I do not accept that the presence of Umbrella Man should have led Mr Wilson to abort the dispatch process. The relevant rail industry standards did not provide that a train could not be dispatched if the train safety check revealed that there was a passenger within the dispatch corridor nor was it ever intended by the Defendant that their standards would be any different in this regard notwithstanding the confusion amongst certain drivers, but not Mr. Wilson, on this point as a result of the wording of its September 2012 Train Dispatch Instructions and I accept the evidence of Mr. Belcher and Mr. Thompson on this issue.[49]For the sake of completeness, I now turn to the issue of whether the driver should have been required to continue to check his monitors after the completion of the train safety check and until the monitors cut out. The industry standards take into account proportionality and the magnitude of the risk and the creation of other risks and in that context in my judgment, it cannot properly be said that the Defendant was negligent in failing to depart from the industry standards by mandating its drivers to monitor CCTV images until they cut out since, once the driver had taken up power, his priority had to be a continuous view of the signal and the line ahead. It would be distracting to the driver to have to continue to monitor the eight images on two screens with the risk that that distraction could lead to a far more significant risk than that sought to be guarded against.[50]In any event, in my judgment before the Train started to move, the driver would not have seen anything untoward given that the Claimant only moved towards the Train after the Train began to move. If the driver had been looking at the monitors in the period up until they cut out the time needed to react and apply the brakes would, on the balance of probabilities, in my judgment, have been such as to have precluded their application before the Claimant fell and was injured. The suggestion put forward by Mr Danks, that the mere application of the brakes might have shocked the Claimant into realising the danger in which he was placing himself and averting the accident is frankly fanciful. 2. The Use of Platform Dispatch Staff to continue monitoring of the Platform Train Interface[51]What is said on behalf of the Claimant is that the Defendant should have mandated a member of platform staff to be positioned close to the platform for optimal observation of the Train, as he or she would have been when dispatching a Class 315 or 317 train so that he or she could continue to monitor closely the dispatch corridor until the Train had completely departed from the Station. Criticism is also made of the Defendant’s Method Statement and its risk assessment process which it is said in part was incomplete and where the severity of any injury including fatal injury was insufficiently recognised, such that the two documents were not fit for purpose. Moreover there was a member of platform staff present whose role was to dispatch the 315 and 317 trains and, it is said, he (Mr Perkins) could have undertaken the role at no additional cost to the Defendant by virtue of the fact that he was present on the platform in any event.[52]Although perhaps superficially attractive, on close analysis, in my judgment, those criticisms of the Defendant’s procedures are misplaced for a number of reasons.[53]There was no history of poor platform safety at the Station nor did it suffer from particularly high passenger numbers nor from any previous Platform Train Interface incident. It was to all intents and purposes unexceptional.[54]It is to be remembered that platforms at stations are part of the rail infrastructure which is controlled by Network Rail and not by the train operating companies. The evidence of |Mr. Metcalfe which I accept suggests that there are some 2,472 passenger stations in the rail network in the United Kingdom and 5,578 platforms. The five year average for passenger journeys is 1.512 billion passenger journeys per year with some 3 billion Passenger Train Interface interactions every year. The vast majority of stations in the rail network do not have Platform Train Interfaces where the gap between the train and the platform would comply with the relevant standard and so it cannot be said that the Station was, by its very nature, one which particularly required to be singled out for implementation of some sort of auxiliary dispatch system. Indeed, the evidence is that significant gaps between trains and platform edges are common place on the rail network as are curved platforms. The RSSB publication “Platform Train Interface Strategy July 2015” states that only about 30% of existing platforms conform to the current height standards and only 20% conform to lateral offset with only 7% conforming to both. The reasons for such gaps are varied and include historical platform design as well as the different widths of different types of train including freight trains and are not limited to platforms with curves. The evidence also suggests that there are some 1,850 stations on the network where there are no station staff present to carry out any such auxiliary dispatch function.[55]Both Mr Danks and Mr Metcalfe have made reference to the statistics for fatalities at Platform Train Interface. There are an average of three a year but with less than one per year involving train dispatch. ( see paragraph 4.9 of the RSSB’s 3013 publication “Risk at the Platform Train Interface”) Moreover the risks posed by the Platform Train Interface are many and varied: 1. Persons falling through the gap between a platform edge and a train when alighting or boarding. 2. Persons falling through the gap between a platform edge and a train when not alighting or boarding (the Claimant’s case.) 3. Persons being in a position too close to the platform edge and being struck by a moving train. 4. Persons falling off the edge of the platform onto the track in the absence of a train and either being killed or injured as a result of the fall or being struck by a train whilst on the track. Again the evidence suggests that the risk from 3 and 4 account for a greater proportion of the fatalities than 1 and 2.[56]Whilst there have been occasions where a passenger has fallen between a train and the platform edge after a train safety check the number of such incidents is, as was submitted on the Defendant’s behalf, a vanishingly small number when set in the context of the number of passenger journeys per annum and the number of Platform Train Interface interactions referred to above. The evidence suggests that a fatality at the Platform Train Interface during dispatch is of about 0.8 cases per annum. It is the balancing of these factors that has to be considered when assessing a proportionate and reasonable response to risk. Plainly the rail industry has limited resources and must allocate its resources on a rational and reasonable basis. This involves a costs benefit analysis and I see the force in the point made by Mr Metcalfe that allocating the resources to deal with issues such as level crossing accidents and signals passed at danger, which are far more prevalent, is a much more realistic use of such resources.[57]In my judgment the Defendant’s method Statement and its Train Dispatch Risk Assessment were appropriate. It is to be noted that the evidence of both experts was that the process complied with rail industry standards. To the extent that it is sought to be argued that the risk assessment process should have arrived at the conclusion that a member of platform staff should have been involved in the dispatch process, such criticism is in my judgment unwarranted. The risk assessment dealt appropriately with the risks that might happen and, in the experience of those who undertook them, had happened (minor risks as cuts and grazes) albeit that the likelihood was small. In any event, any failure in the risk assessment exercise was not, in my judgment, causatively relevant on the facts of this case.[58]The relevant rail industry standards do not require Class 379 trains to be dispatched by a driver and a platform Dispatcher and the Defendant complied with those standards. The rail industry is a highly complex industry with clear, well described and detailed standards which are the product of the collective knowledge and experience of those involved in the industry. As was submitted on behalf of the Defendant, in such highly regulated an industry as the rail industry the relevant standards must be given full and proper weight when considering any breach of duty issues.[59]Although the Defendant did happen to have present at the Station platform dispatch staff for Class 315 and 317 trains, this was not because of any historical safety concerns or exceptional risks arising from the layout of the Station and in no way signifies that the movement of 315, 317 or indeed 379 trains after completion of the dispatch process required a continual train safety check until departure from the platform had been completed. I accept the submission made on the Defendant’s behalf that the requirement in the Defendant’s Method Statement to have a person who was present as a Dispatcher to observe the Train as it departed the Station and until clear of the platform (paragraph 10.8) was no more than a statement of industry practice which was complied with in this case.[60]As it seems to me for the Claimant to succeed against the Defendant in this aspect of the claim he would have to show that the Method Statement was insufficient as the Dispatcher ought to have been required to place himself in a position to carry out a continual train safety check after the Train had powered up and as it was leaving the Station. In other words what would be required would not simply be an observation of the train but a continuous train safety check of the dispatch corridor. To my mind that is to go too far having regard to issues of cost and proportionality.[61]Moreover, it is not just Class 379 trains where there is a period of time after the train safety check when the Platform Train Interface is not being closely monitored by the person responsible for dispatch. In trains with a guard (who is responsible for dispatch) it is also the case that once the guard re-boards the train having carried out his safety check and given the signal to the driver to proceed there is no further monitoring or policing of the Platform Train Interface by the guard.[62]Such a system has been considered by the Court of Appeal in the case of Silverlink Trains Ltd v Paul Collins-Williamson[2009] EWCA Civ 850. In that case the Claimant fell between the platform edge and a train at Gunnersbury Station and suffered an amputation. His claim succeeded on the facts (subject to 50% contributory negligence) since the trial judge found as a fact that the Claimant was adjacent to the train engaging in drunken behaviour during the time that the guard was on the platform carrying out his safety check and therefore that the guard was negligent in dispatching the train. Significantly however it was also argued that as there was a window of time of some 10 to 15 seconds between the completion of the train safety check and the train moving off, the Defendant company was negligent in not providing a system to monitor the Platform Train Interface in that window. It was said that platform staff or CCTV monitors should have been used for this purpose or that the guard should have been required to look out of the train’s window after he had carried out his safety check. The trial judge rejected those allegations save for that relating to the guard but, on appeal, the Court of Appeal overturned the finding in relation to the system of dispatch on the basis that the risk of injury during the relevant period was extremely small, as it was in this case, I conclude.[63]In Whiting v First/Keolis Transpennine Limited [2018] EWCA Civ 4 there was also a systemic challenge in that it was said that the guard should have been looking out of his window after the train safety check, a challenge rejected by the trial judge, who was upheld by the Court of Appeal.[64]Whilst each case is of course fact sensitive and previous decisions are therefore of limited assistance the fact that in both these cases the systemic challenges namely that the system of train dispatch was inherently unsafe by reason of the existence of a period of time after the safety check when the Platform Train Interface was not being monitored was rejected is persuasive.[65]Furthermore, there is no means in the UK network for platform staff being able to communicate with the driver of a train and there is no means for platform staff to be able to send an emergency stop command to train control or the signaller. In those circumstances it seems to me that platform staff could not in fact have halted the leaving of the Train in any event.[66]Even if I were to be wrong about the issue of platform staff continuing to monitor closely the train as it left the Station, as it seems to me the CCTV evidence and the timeline thereby established demonstrate that it is inherently unlikely that someone on the platform in the dispatch position or even a few paces forward would have had any realistic prospect of seeing any of the events that unfolded after the Train had arrived in the Station. It would have been a matter of chance for the Claimant to have been spotted whilst jogging along the platform and in any event in my judgment even if the Claimant had been seen it would have been absolutely no cause for concern. Equally as I have already indicated in my judgment it cannot reasonably be said that Umbrella Man or indeed anyone else on the platform was placing himself at risk such that action should have been taken. It would also have been a matter of pure chance for the Claimant to have been seen crossing from the point where he was effectively obscured by Umbrella Man to the train side of the yellow line by which point the Train was already leaving the station, and again the platform staff would have had both to perceive and respond to the unfolding events and then have taken steps to shout or rather (to have any chance of being heard) broadcast a warning. Again in my judgment there would have been insufficient time for any such action to have been taken nor is there any evidential basis to suggest that the Claimant would have responded in time to the warning even if he had heard it. 3. Mr Perkins[67]I now turn to deal with the allegation made that Mr Perkins should in any event have noted and reacted to the Claimant’s behaviour in the vicinity of the Train. Again I can do so shortly.[68]Mr Perkins’ evidence, the substance of which I accept, was that after the Train had come to a complete stop and just before the doors were opening he made the first of two “please mind the gap” announcements with the second one being made a few seconds later whilst the doors were open and the majority of passengers were stepping off the Train. He continued to observe the behaviour of passengers to make sure no one got too close to the edge of the platform. His focus was towards the rear of the Train. He did not recall seeing the Claimant specifically nor indeed did he see anything untoward. That is not in my judgment surprising given that Mr. Perkins was some 60 metres away from the Claimant and there were a lot of passengers to Mr Perkins’ right in the vicinity of the ticket barriers in the period leading up until the Train started to move and, of course, at one point as can be seen on the CCTV footage, his attention was drawn by a passenger who was seeking his assistance. In addition, Mr. Perkins’ view would not have been the view from the platform mounted cameras.[69]Mr. Perkins’ role was not to monitor or police the dispatch corridor, it was to observe the Train. In my judgment, this is exactly what he can be seen doing on the CCTV footage, even when being engaged in by a passenger.[70]To my mind, having viewed and reviewed the CCTV images there is nothing in the behaviour of any of the passengers on the platform which should have caused Mr Perkins any concern.[71]Finally, so far as causation is concerned, even if Mr. Perkins had seen anything he judged to be untoward in the Claimant’s behaviour, he could not stop the Train’s dispatch. Nor would there have been sufficient time for him to have reacted so as to draw the Claimant’s attention to the danger into which he was putting himself. Once the Claimant had placed himself close to the platform edge and the already moving Train it was too late to stop the Train or to communicate a warning and for the Claimant to have been able to act on it (even if he had heard it and it had caused him to realise the danger).

Disposal

[72]For all these reasons, I conclude that:(a) the Claimant has failed to establish any breach of duty on the facts of this case and(b) the Claimant has also failed to establish causation (in relation to the breaches of duty alleged by him). Whilst there is no doubt that as a result of the accident, the Claimant sustained very severe and life changing injuries, the fact is that he is an adult who used the Station on a daily basis. He would have heard the “mind the gap” announcements on numerous occasions and was well aware that there was a significant gap between the Train and the platform edge. Despite that fact, no doubt because as he himself admitted, he was stressed and agitated and anxious to recover his season ticket, he chose to place himself in a position of very real danger as the Train was leaving the Station.[73]In the circumstances therefore I would dismiss this claim. There is no need for me to go on and consider the issue of contributory negligence. Had it been necessary, I would have concluded that the Claimant should bear the major responsibility for his injuries which I would have assessed at 70 per cent having regard to all the circumstances of the case and to the various factual findings I have made including that the Defendant had complied with all relevant Rail industry standards, that the driver that carried out the train safety check appropriately and competently and that it was the Claimant, who, by his conduct, placed himself in a position of real danger in circumstances where he was well aware of the existence of the gap, that the Train’s doors had closed and that it was therefore about to depart the Station. Indeed, the Train was already moving at the point that he moved towards the Train. The fact that he was distracted by the loss of his wallet and the implications of that loss does not excuse or diminish his responsibility for the tragic consequences.[74]I trust that the parties will be able to agree the terms of an order which reflects the substance of this judgment in which case there will be no need for either party to attend when the judgment is formally handed down.[75]If there are any outstanding matters then the parties are each asked to file not less than 48 hours prior to the date fixed for the handing down of the judgement short skeleton arguments identifying the issue or issues and setting out their submissions thereon.[76]Finally, I would like to take this opportunity to thank both counsel for their considerable assistance in this case.