Russell-Cooke has been representing the family of Milena Gagic following her death in 2014. In their case against Network Rail at the Central London County Court HHJ Baucher handed down Judgment on 23 April.

In the early hours of 13 December 2014, 16 year old Milena Gagic was fatally hit by a train on the Hipperholme level crossing in Halifax. Milena had grown up hearing hundreds of trains a day sound their horn and had no knowledge that a Night Time Quiet Period (NTQP) covering 2300hrs to 0700hrs had been introduced in 2007, or that trains ran 24 hours a day.

The railway industry’s own research showed that the introduction of the NTQP would be responsible for an increase in risk and fatalities. Despite this, unless a level crossing fell within narrow criteria, the railway industry illogically assumed that it would rarely or never be used during the NTQP hours, and therefore took no action to mitigate the increase in risk caused by the NTQP.

During the trial earlier this month, evidence was heard from an industrial and public safety expert who attended the Hipperholme level crossing after Milena’s accident. This expert observed that there can be insufficient visual or auditory warning of a train approaching due to various factors including track curvature, line speed, a nearby main road, a lack of track vibration, and the phenomenon that trains can sometimes only be heard after they have passed by. Also, this expert explained that there is a common public misconception that trains stop running overnight. The driver of the train which hit Milena did not see her, and it is clear that Milena was unaware of the approaching train. The toxicology report confirmed that there were no drugs or alcohol in Milena's system.

At trial, Network Rail agreed that it would have been possible and relatively inexpensive to introduce signage at level crossings warning of the NTQP and that trains run 24 hours a day – something that it had previously failed to consider. However, HHJ Baucher found that Network Rail did not breach its duty of care towards Milena by not introducing such signage.

Partner Janice Gardner says: “Today’s decision sets a dangerous and disappointing precedent. The railway industry took active steps to remove a longstanding safety procedure, in full knowledge that doing so would increase risk and, in turn, fatalities to level crossing users. The removal of this safety procedure took place without the public being properly informed and educated, and without alternative safety measures being introduced. I feel that in today’s decision the potential to force the railway industry to revaluate the dangers of the NTQP for level crossing users and to introduce vital safety measures to prevent future deaths has been missed.

Despite their devastating loss and personal turmoil, Milena’s family have worked tirelessly and admirably since Milena’s death to raise awareness of the safety issues surrounding level crossings and the NTQP. As a result of their campaigning, the NTQP hours were reduced in 2016 and Hipperholme level crossing has been temporarily closed. However, these changes do not go far enough; there are level crossings across the country where the increase in risk brought about by the introduction of the NTQP remains unmitigated. This is of huge concern and must be addressed by the railway industry without further delay.”

A spokesperson for the Gagic family says: “Milena was a very private person and would be mortified that her name and photograph has been the subject of media coverage. We are a very private, normal family, but were prepared to bring this case with the aim of raising attention to the dangers of level crossings affected by the NTQP and bringing about improvements in safety.

Milena was an animal lover and hugely passionate about the environment; she wanted very much to go to University and to become a Zoologist. It has always been our intention that any damages received from this case would be donated to Milena’s favourite charities.

We are very disappointed by the Judgment as we feel the opportunity has been lost to compel the railway industry into taking much needed action to improve the safety of level crossing users. We are concerned that Network Rail appears to have no appetite for safety improvement and will continue to fail to take the problems created by the NTQP seriously until it is faced with yet more tragedies.”