By Alan Richardson

A WOMAN who caused a fatal train crash at a Highland Perthshire level crossing has lost her appeal to have the rail company made partially responsible for the accident.

Television producer Jane Rogerson, whose partner was killed when the car in which she was driving collided with a train at Moulinearn in 2001, maintained Network Rail should pay part of the £42,000 damages because of the design of its crossing.

But appeal judges have disagreed, maintaining the accident was her fault because she had not been paying proper attention when she lifted the barrier and drove onto the train track.

In a 2005 Court of Session judgment, then-operators Railtrack were criticised for the signage at the crossing but Miss Rogerson’s inattention was cited as the reason for the crash.

On May 5, 2001, Miss Rogerson (40) and Bruce Thomson were crossing the Perth to Inverness track south of Pitlochry.

She was carrying the daughter of her friends, James and Lorna Clegg, in the back of the car with the couple in another car.

The court heard how Miss Rogerson failed to observe safety procedures at the crossing and raised the barrier using a button within reach from the car.

She was almost across when an 80mph Inverness-bound train struck the rearside of the car, killing Mr Thomson and leaving three-year-old Sara Clegg with a horrific head injury which left her brain damaged.

Following the 2005 court case the Cleggs were awarded £42,000 for depression and other mental disorders they suffered as a result of seeing the accident.

Lord Hodge, who heard the case, said Miss Rogerson had not read the instructions on the barrier, relying instead on promptings from her boyfriend to raise the barrier and cross, despite red lights showing and a klaxon sounding.

However, it was argued the level crossing—the only one of its kind in Britain—was of an “inherently dangerous design,” not least because the barrier could be raised even when there was a train approaching.

It had previously been a manned crossing and, following the decision to make it mechanical, had been modified several times. The court had heard how there had been three near misses.

In the latest action, Miss Rogerson did not seek to reverse the decision or escape blame but argued Railtrack, now Network Rail, itself was party to blame.

Lord Nimmo Smith said, “We have reached the conclusion that there are insuperable obstacles to Miss Rogerson’s attempt to secure a contribution from Network Rail.”

He said she had not sought out the instructions but relied upon guidance from her partner and probably would have ignored them if she had read them.

While dismissing any notion it was to blame for the accident, the judges did not absolve Railtrack completely for its failure to post adequate instructions.

They stated, “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.”