Written evidence from Tina Hughes (SLC 020)

Summary

• I became involved in safety at level crossings following the death of my daughter Olivia and her friend Charlie Thompson at Elsenham in December 2005.
• This tragedy revealed incompetence’s and lack of processes around level crossing management, which were hidden by Network Rail through withholding and suppression of information.
• This was a reflection of a closed culture which lacked integrity, described in the judgement following their criminal conviction as “a narrative of culpable corporate blindness and complacency going beyond the merely inefficient, sub optimal or even occasionally incompetent but entering the realm of criminal failure’
• As a result of the re-investigation into Olivia and Charlie’s death, Network Rail established and funded a team to deliver changes to the management of level crossings.
• The National Level Crossing Team has made significant advances in safety at level crossings since being established in 2011, but there is still much to do with almost 7,000 crossings on the network.
• The continuing cultural issues played out at senior management level are posing a serious threat to this on-going work.

1.                    Why and how I am involved

1.1              I am Tina Hughes, mother of Olivia Bazlinton who was killed at Elsenham Station level crossing in December 2005 with her friend Charlie Thomson.

1.2              I have been working with Network Rail since September 2006 to raise awareness of level crossing risk and in March 2011 Sir David Higgins, then newly appointed Chief Executive, asked me to become Level Crossing User Champion which gave me access to the newly formed National Level Crossing Team and through them to a wide audience within Network Rail to help that team embed the changes being introduced. I do this by giving a personal account of the failures that led to Olivia's death, and the impact this has had; and therefore, why Network Rail must change.

2.        A brief background of what was exposed through the Elsenham case

2.1              The girls were coming back across the level crossing having bought their tickets.

2.2              They misunderstood the lights and audible warnings, believing they were for the train they had waited at the gate for - the train they intended to catch.

2.3              They stepped onto the crossing the very second that their train would have cleared the warnings but were hit by a Stansted Express train on the other track.

2.4              Network Rail’s immediate public response was that the crossing was safe if used correctly.

2.5              On the accident form completed a few days after the accident Network Rail described the girls as “trespassers” despite knowing that they had purchased tickets and hence were passengers. This illustrates a culture where blame is directed to users with little consideration of facts.

2.6              A previous fatal accident in 1989, in almost identical circumstances at Elsenham, had resulted in HMRI instructions for a second train coming warning - this had never been installed.

2.7              Risk assessments at the crossing had wrongly revealed very low scores but these had not been properly completed. Immediately after the accident a careful retrospective risk assessment showed a much higher score, but one that still enabled Network Rail to continue to say that the crossing did not need to have been changed.

2.8              Even that score was disputed as too low by HSE, who prepared a report prepared for the Inquest into the girls’ deaths. They suggested that the risk was much higher than even the second assessment and that risk management at level crossings in general in Network Rail was very poor. This report was supressed by Network Rail's legal team following a pre-Inquest meeting and subsequently the Coroner would not allow any evidence that expressed concern about risk assessments to be raised at the girls' Inquest.

2.9              Following the Inquest, Her Majesty’s Railway Inspectorate advised that they were too busy with other cases (mainly derailments) to prosecute Network Rail. The opportunity to use evidence of poor risk management to facilitate change was missed.

2.10              During the 18 months following the Inquest, I heard Network Rail repeat the phrase "it's a perfectly safe crossing if used correctly" many times when responding to questions about deaths on crossings.

2.11              I knew that Elsenham had been far from a safe crossing when this phrase had been used (indeed Network Rail had installed a footbridge and magnetic signal-based locks on the gates within two years) so I decided I could not leave things unchallenged and determined to take a civil case against Network Rail to prove them negligent and try to raise awareness with someone (their regulator or perhaps Network Rail itself) that something needed to change.

2.12              A risk expert reviewed our case and Counsel agreed to take the case to Court. 

2.13              Frustratingly, after almost two years and within a few months of my planned public exposure of their negligence on the Court steps, Network Rail decided to settle out of Court and therefore avoid any damaging publicity.

2.14              A few weeks later, upon return of my papers from the solicitors, I discovered a risk assessment that has been disclosed to my solicitor by Network Rail during our case, but this had not been seen previously during the accident investigations or Inquest. This risk assessment from 2003 advised that the gates at Elsenham should be locked when trains were approaching.

2.15              In February 2011, The Times published an article about the failure of Network Rail to disclose this important document to the rail accident investigators and to the Coroner. Network Rail publicly stated that this document had been disclosed and disingenuously suggested the families were mistaken. However, the Office of Rail Regulation (ORR) and Transport Select Committee had picked up this information and started asking questions of Sir David Higgins, the newly appointed Chief Executive.

2.16              Sir David Higgins advised the Transport Select Committee, in February 2011, that he would make full disclosure to the families. However, when we met him a few weeks later, the ‘full disclosure’ file he handed over, prepared by Network Rail's legal team did not even include the recently discovered risk assessment!

2.17              Much to the dismay of Network Rail's Chairman, the ORR re-opened the investigation into Elsenham and when forensic examination was proposed several other damning documents came to light.

2.18              It became clear that some people in Network Rail were aware of the very real risks at Elsenham - one of these documents, a memo written in 2001 described exactly how the accident at Elsenham would happen. It was heart breaking to read.

2.19              We have proof that one very damning memo was in the hands of Network Rail’s legal department even before the ‘full disclose’ file was created and long before it was handed over to Sir David Higgins.  They are withheld information from their Chief Executive. The non-disclosure of these documents to us in our civil case was contempt of Court.

2.20              The ORR investigation identified:

•     Risk assessments had been done to meet targets, which had then been               filed in a room and not acted upon.
•     The quality of data was poor and data that was available was not collated.
•     There were no processes in place to follow through and reduce risk.
• That there was evidence that important documents were found in the immediate aftermath of the incident by the team collating evidence for the investigators that was not forwarded to them.
•     That some risk assessments had been done without even visiting the site.

2.21              ORR eventually prosecuted Network Rail in March 2012 and they pleaded guilty.

2.22              I feel it is worth quoting a short paragraph from Justice Turner’s summing up of the case:

“I have concluded here that there was a clear history of inadequate risk assessment and a failure to heed and act upon available information and earlier specific warnings.  That prevailed over a worrying number of years.  There was a consistent underplaying of the significance that this crossing was being regularly misused.  There was a consequent failure to take timely remedial action.  What emerges from a consideration of the totality of the material available to me is a narrative of culpable corporate blindness and complacency going beyond the merely inefficient, sub optimal or even occasionally incompetent but entering the realm of criminal failure as the guilty pleas concede.  In short, warnings went unheeded.  Data was insufficiently appraised.  Critical questions went unasked and unanswered.  Remedial action was unsatisfactorily delayed.  Narrow thinking and a culpable failure to appreciate the actual high levels of abuse at Elsenham meant that a key indicator there was missed, overlooked and that serious failure was sustained.”

2.23              But Network Rail seems to think it is above the law and paying fines for deaths caused by their negligence is a painless penalty – it is after all the return of funds back to the Treasury.

2.24              It was quite a relief to finally hear these words spoken in Court and to know that Network Rail had a criminal conviction and a Regulator who had already started to ensure that changes would happen.

3.              What has changed?

3.1              Sir David Higgins arrived at Network Rail just as the media exposed the withheld documents in February 2011. A few weeks later he met with us, to hand over all the documents relevant to Elsenham (as promised to this Committee).

3.2              In the following weeks he realised the significant risk that level crossings posed corporately and the improvements in safety that could be made.

3.3              I expressed my desire to help and he asked me to become 'user champion' - a role that would demonstrate a change in attitude by Network Rail.

3.4              He facilitated a budget of £130m and gave the job of setting up the team to deliver changes to level crossing risk management, safety enhancements and process improvements to Martin Gallagher, who had already been working on improvements in this field but with little support corporately.

3.5              Despite pressure from the Chief Executive, there has been considerable resistance within some areas at high-level management, particularly within Operations, to this work; but the team eventually settled into achieving significant progress.

3.6              In the two and a half years since they started work, I have been very impressed by the progress made by the National Level Crossing Team and the changes that they have been able to make in this previously neglected area. I will not go into what has been delivered to date, as I am sure that this will be detailed in Network Rail's own submission.

3.7              One of the major changes that I believe is and will continue to make the most significant difference is the introduction of Level Crossing Managers. These people have a remit to become familiar with the level crossings assigned to them - they each have around 70 - and will be proactive in reducing the risks and following through actions so that issues will be dealt with.

3.8              Level crossings are inherently dangerous and the interface between the railway and road or footpath users will inevitably lead to accidents as humans do make errors of judgement - sometimes deliberately but often while distracted - but at least when they do so, Network Rail can be open and honest about what they have done to reduce the risk or be able to defend why the crossing remains open.

4.              But there is much to do...

Route level deviations

4.1              Despite the National Level Crossing Team’s effort to analyse the requirements for Level Crossing Managers, the devolution of responsibility to the routes and the emphasis on cost cutting, has resulted in not all of the recommendations being implemented across the board.

4.2              One route, LNE, with little evidence of why, decided to under resource the number of Level Crossing Managers by 25%. This significant under resourcing leaves that particular team stretched – some with almost double the average number of crossings to manage - and feeling that they cannot provide the level of care and attention this important work deserves. I am due to challenge this decision with the LNE route managing director in October.

Still reactive to accidents and not pro-active

4.3              Network Rail, and its predecessors, have always been good at reacting to accidents - putting right something that is found to be a significant factor after the event. For example, the subsequent replacing of the type of crossing that allowed a signaller to raise the barriers at Moreton-on-Lugg when a train that had not yet been through the crossing when the barrier was raised and a car passenger was killed.

4.4              I was appalled that the Level Crossing Keeper was also prosecuted in this case. He had been dealing with someone on the phone who wanted to move a herd of sheep over another crossing and the Crossing Keeper thought he had left the barriers down after the train had passed while he was making arrangements with this farmer. The system operated by Network Rail at Moreton-on-Lugg should never have allowed him to raise the barriers when the train was already within the crossing zone - there was no 'are you sure?' or failsafe system to protect crossing users, or the Crossing Keeper, from making this fatal error. There is now and all crossings of this type are now being upgraded.

4.5              I believe that as the Level Crossing Managers do their job through the full risk assessment cycle, these risks will be identified and methods devised to remove or reduce the risk in a proactive way. At the moment they are still in their first year of operation and playing catch up.

5.              And going forward...

5.1              Perhaps my biggest concern is recent changes that are being undertaken; even before Sir David Higgins leaves the company.

5.2              Although it not the Committee, nor my business to intervene in the working of Network Rail and how it manages it’s human resources functions, I feel I must advise of the risk posed by what seems to me some rather unwise decisions.

5.3              Having established a highly successful team to deliver the significant changes that have been seen in the last two and a half years, the National Level Crossing Team have been subjected to some partially implemented and then apparently withdrawn changes. It was announced recently that this team would be split between Safety and Programmes within Operations but then seems to have been reversed following ORR intervention, however the team have been unnecessarily demoralised and the Head of that team, Martin Gallagher, (whose qualities ORR described in a recent review as "needing to be bottled") seems to me to be being pushed out of the organisation. Does professional jealousy win the day? Sadly, I believe that to be the case. But what a loss of home-grown talent!

5.4              As one might expect following such a shambolic re-organisation, where the team, nor the Head of the team, was consulted, there is now a significant risk of the skilled and experienced resource leaving the company. This is very short-sighted.

5.5              Without the collaborative working established by this team to improving processes, innovation in technology to move away from signal-based (expensive and time consuming) methods, and culture changing - leading by example that has been established and proven by this team, the changes made are in danger of slipping back and level crossings will once again be neglected. I believe that the continuing cultural issues played out at senior management level are posing a serious threat to this on-going work.

5.6              I believe there is a 'we only kill about 10 a year which is better than most other networks' attitude in some areas of Network Rail.

5.7              I have heard rumours that a new professional role might be established in Asset Management. But Asset Management professional roles are historically, obviously, engineering-based and my fear is that a Head of Level Crossings in this area will have an emphasis on signalling which will therefore focus on the proportionately small number of signal-based crossings. These crossings are inevitably better protected and therefore lower risk than the majority of crossings that will in all likelihood be neglected, as signal-based solutions are disproportionately expensive for the calculated risk levels at these crossings. And cost benefit analysis is essential to assist prioritisation of scarce resource. 

5.8              But all level crossings pose a risk - even a footpath crossing that is only occasionally used is a very high risk if the user happens to be there at the same time as a train. You may recall the four girls in the northeast last year who ran across a "perfectly safe crossing" and one was hit and fortunately only lost her arm - not her life? The crossing had a sign that says 'You must call the signaller before crossing' but was otherwise unprotected on the East Coast mainline where the train was travelling at 125mph. What 12 year old is going to call a signaller? As I suspect most of us would, the girls looked, thought it was safe and crossed - but they, and along with most of us, would not have the ability to judge just how quickly a train travelling at 125mph would be upon them.

5.9              Network Rail have £67m budget allocated for CP5, the next five year period, to continue to develop innovative means to protect crossings and these remote crossings might be easily and relatively inexpensively protected, for example, by vibration-linked signals. Network Rail needs more funding for this work - they had £130m for only the last two years of CP4. But even if they get additional funding, which they are asking for, without dedicated resource to deliver the work they will not succeed.

5.10              My concern about the user-blaming and back-side covering culture in Network Rail that I was exposed to during my fight for the truth and to get changes made, is one I believe results from a legacy of lack of accountability. When ORR discovered evidence of withholding of evidence from the accident investigators (including the Department for Transport’s Rail Accident Investigation Branch) and the Coroner, they decided that rather than expose those individuals that the company might then use as a scapegoat, they would prosecute for the systemic failings. I believe that was the right decision.

5.11              However, even Sir David Higgins did not have the appetite to deal with the withholding of documents from him, when the 'full disclosure' file he had promised this Committee he would deliver to us, the families. We have proof that Network Rail’s legal department withheld information from their own Chief Executive.

5.12              The non-disclosure of these documents to us in our civil case was a contempt of Court. Despite this now being exposed I am not confident that the culture has changed within the company.

5.13              I believe the way that Network Rail treats people internally - compromise agreements that gag it's outgoing staff, lack of information, for example, about why they pleaded guilty in the Elsenham case until a groundswell of protest from within required an explanation, as well as externally by withholding information and, basically, lying is an on-going problem.

5.14              I hope to continue to work with Network Rail to support the changes they are introducing in level crossings safety and risk management and in a small way help to influence the change in culture that I believe is essential, but as I also am free to challenge them, I suspect the opportunities to do so will cease without the support I have enjoyed from Sir David Higgins.

September 2013