Brother of crossing death teenager set to sue rail firm

Connor Milloy has won legal aid to fund a civil action against the infrastructure giant after losing his brother Robert, 18, in a horrific accident early this year.

In a highly unusual legal move, the Scottish schoolboy will claim for "loss of society", arguing that the accident has deprived him of the company of his sibling as he grows up.

Robert Milloy, who was usually called Boab and has a half-brother called Bran, was killed as he walked home for lunch in the village of Gatehead, near Kilmarnock, Ayrshire, on 27 January.

The farm worker was hit by a train as he stepped past a partial barrier and onto the rail track, just yards from his house. He died at the scene after being thrown 60ft by the impact.

His family and their lawyers have still to decide exactly how much to seek in damages. But the families of victims of other level-crossing accidents have typically won tens of thousands of pounds in recent years after winning their cases.

His father, also Robert, a 47-year-old animal health inspector, said improving safety measures at level crossings was the central issue.

Milloy said: "If they came to me and said they were sorry, paid the cost of the funeral and put full double barriers on level crossings, then I would be happy.

"We can't bring Boab back. But the next best thing we can do is find ways of making these crossings safer. And the only way we can do that is through the courts."

The family's lawyer, Paul McHolland, from Ross Harper, said: "This was a devastating incident with tragic consequences. We are in the process of advancing a claim via the courts."

Milloy, who is divorced from Boab's mother, argues that his son would not have been able to step on to the tracks if Network Rail had installed double barriers across the whole carriageway and pavement at the Gatehead crossing.

His son died instantly when he was hit by the 11.40am Girvan to Kilmarnock service at the crossing which lies in the centre of the village. Before the arrival of the train, which was travelling at 50mph when it hit him at around 12.35pm, a barrier had come down and closed the left-hand lane to road traffic, leaving the right-hand lane unprotected. There were also flashing warning lights and klaxon sounds. There is no suggestion the safety measures were not working properly.

Milloy yesterday said his son had to take some of the blame for his tragic death. "Boab had been off work with the cold and he was still bunged up," he said. "He had his hood u p against the rain, it was a right smirry day. And he was shuffling music on his mobile. So he just walked along the pavement and past the barrier. He didn't hear the klaxons or see the lights. He had crossed thousands of times. It was too familiar."

Milloy, however, argued that similar familiarity did not stop factories fitting protective barriers to machinery to protect workers from moments of inattentiveness. "Railways are not like roads," he s aid. "It is not as if the train driver, who I feel really sorry for, could have swerved."

Twelve people have died in level-crossing accidents in Britain so far this year, five of them in Scotland and three in a single car accident in Caithness in the summer. A further 14 people died last year.

"The trains sound their horns now at the crossing, which is just a few yards from our house," he said. "Every time I hear them I think of Boab.

"That whole day I thought I was living a story, a play, something off the telly. I was at work when my girlfriend called to say what had happened. I drove home, screaming, shouting and crying all the way.

"I gave him a cuddle in the morgue. His hands were cold but his back was still warm. It isn't easy getting over that."

His son has since been buried in a plot in his father's garden.

Milloy said he had feared he wouldn't be able to take legal action. Employed and a home-owner, he was neither rich enough to afford litigation nor poor enough to automatically be entitled to legal aid. However, as a minor, Connor Milloy had no income and was therefore able to access public funds for the action.

Network Rail, in an out-of-court settlement earlier this autumn, paid 20,000 to another Ross Harper client, the widow of a man killed at a level crossing in Cardross, Dunbartonshire, in 2003. It is also facing an action for 500,000 in damages from a pregnant woman, who spent months in a coma after her car collided with a train at Halkirk in Caithness, in 2002. That was the same crossing where three pensioners died earlier this year.

The company yesterday said its crossings complied with safety standards set by its watchdog, the Office of the Rail Regulator or ORR. A spokesman added: "In the case of Gatehead level crossing, we have a system appropriate for the level of use. It is protected by warning lights, klaxons and a half-barrier system."