Parents fight for answers from Tranz Rail

The family of Katie Connolly, killed crossing a railway, fear a coroner's warning about pedestrian safety has fallen on deaf ears. CARROLL DU CHATEAU tracks their battle to make Tranz Rail accountable.

Sue Connolly stands on the bare asphalt of Glen Innes railway station, clenches her fists and toughs it out. This is the first time in almost three years she has been back to this barren, uncared-for place where the wind whistles down the platform and the pedestrian subway is so shadowy and threatening it is considered dangerous, even by locals.

Back then, Sue's life was different. She had two talented, high-achieving children, a successful barrister husband, a job as secretary of day surgery at the Adventist Hospital in St Heliers and a comfortable home only a kilometre from the beach.

Katie, her 16-year-old, clever and loving would-be actor daughter was a special delight. Mother and daughter were close. That morning Katie had left school early for a doctor's appointment to check a suspected virus before the pair were to head into the city to collect her new Liz Mitchell dress for the King's College ball.

Sue will never know exactly what Katie was thinking about as she hopped off the suburban DMU train at Glen Innes and headed across the track that runs down the other side of the station. As Clarice Pye, the woman who walked behind her, and Silver Fern driver Norman Burnand would testify, Katie's head was down, as if deep in thought, as she headed towards the crossing that led over the east-bound tracks that she used every day.

It was 11.50 am on June 18, 1997, nearly the shortest day of the year. The light was flat and Katie did not see the steely Silver Fern railcar merged against the overcast sky like a shark in a shadowy sea, as it rounded the bend 300 metres away on her left on its trip to the Westfield Train Depot in Otahuhu.

Nor, above the noise of the suburban train as it roared and tooted out of the station and the nearby timberyard, did she hear the almost silent railcar as it slid down the tracks at 80-odd km/h. Although Burnand tooted his whistle too, she kept on walking. And the train did not slow.

Only at 15 metres - that is half a second before impact with the slight figure in her grey and maroon school uniform - did Burnand squeeze on the Silver Fern's brakes, causing the empty railcar to stop 218 metres down the track..

But by then Katie was dead. As her mother says now, "Why weren't there bells and flashing lights to warn Katie a train was coming? Why didn't he brake earlier - just to slow down in case Katie hadn't heard him? The railcar didn't have passengers on board, it wasn't running to a timetable. Why didn't the lady walking behind her call out?"

Last week, almost three years later, Auckland coroner Mate Frankovich released his report into Katie's death that echoed the Connollys' frustration and anger. His findings, especially around Tranz Rail's attitude to passenger safety, were damning.

"While it is enshrined in the legislation that a train track is the exclusive corridor of rail traffic, nevertheless I consider that there should be a duty ... towards pedestrians using pedestrian crossings."

Meanwhile the toll on Katie's family has been harsh. Almost three years after they laid their beautiful daughter to rest at the Purewa Cemetery in Meadowbank, Sue and Stuart Connolly's happy marriage is under pressure as they grapple with the pain and despair that comes from losing a child on the edge of her prime.

As Sue explains, when you've lost your daughter the emotional, giving side of a mother is empty. "It changes and alters you forever."

And so Sue and Stuart, with help from Katie's brother Simon, only 16 months older and extremely close to his sister, began the fight that heartbroken families sometimes take up in cases of great injustice - they poured their energy, grief and resources into making certain that what happened to Katie never happens to anyone else's child.

Says Sue through the tears that sit behind her eyes and tremulous smile most of the time, "I'm still angry. There's been no justice for Katie."

While Sue Connolly, with help from Simon, wrote to local MP Clem Simich, Max Bradford, then-Transport Minister Maurice Williamson and Minister of Justice Sir Douglas Graham, Stuart Connolly worked on the safety and risk aspects of Tranz Rail's performance.

Sue also put together two meetings - one at home with the Land Transport Safety Authority (LTSA), the second in the Bledisloe Building with the Auckland City Council, the LTSA, Tranz Rail, Occupational Safety and Health. And as she says now, except for being stunned by the attitude of a Tranz Rail safety analyst who, when asked why the driver didn't brake, replied, "No evasive action was required," nothing happened.

"I organised all those meetings, wrote all those letters and we came away with nothing."

By the time the inquest into Katie's death came before the Coroner's Court on September 21 last year, the Connollys' evidence was substantial, rigorous and had cost them thousands of dollars - most of it in time and sweat.

Their argument was clear. Since Wisconsin-based Tranz Rail - wheeled on with great fanfare by brokers Fay, Richwhite as the cutting edge of our privatisation reforms - took over our rail service seven years ago, safety had slipped.

Certainly, in seven years there have been 65 level-crossing deaths, 291 car crashes on railway crossings, and 16 rail workers have lost their lives while working for the company - five of them in the past seven months.

Tranz Rail, which has had plenty of practice in inquests like this over the past seven years, was also well prepared. Ten exhibits were produced and 11 statements read to coroner Frankovich. Then, for three harrowing days, both parties slugged it out. John Bergseng, assisted by Connolly, who has a background in risk management himself, acted for the family. Wellington-based Russell McVeagh lawyer Justin Smith, who acted for Tranz Rail over the case of 6-year-old Morgan Jones, who was blinded and lost a leg when a Tranz Rail handrail gave way, acted for Tranz Rail.

All five witnesses were cross-examined. The evidence of forensic neuropathologist Dr Beth Synek, who had noted occipital nerve damage to around 5 per cent of the region involving sight in Katie's brain, was strenuously cross-examined and contested by neurologist Dr Lindsay Haas, also flown in from Wellington by Tranz Rail for the occasion. The argument: that Katie's brain had been impaired to a point where she couldn't hear or see well enough to see the train coming.

None of which convinced Frankovich. As he found on May 10, eight months later and after three trips to the scene of the accident site, "after questioning [Dr Haas] myself I was satisfied that apart from her minor respiratory problems young Katie was a perfectly healthy, normal young girl. No evidence was adduced as to Katie's hearing. That being the case I have assumed that her hearing was perfectly normal. So much for the facts."

The evidence and information, teased and squeezed out of witnesses, paints a disturbing picture. Donald Davis, safety manager for Tranz Rail and the company's liaison point for the Transport Accident Investigation Commission (TAIC) and the LTSA, informed the court that Glen Innes station (although used by dozens of Kings College and other students plus workers every day) is not considered busy enough to meet the company's formula for "active" pedestrian warnings such as bells and flashing lights, let alone an overhead bridge.

Tranz Rail installed its Glen Innes pedestrian crossing because pedestrians tended to avoid the tunnel and had routinely broken through the fence to cross the tracks. Davis, who could not produce a safety budget, either for New Zealand or Glen Innes station, did not have accurate knowledge of pedestrian numbers at the Glen Innes crossing and, under cross-examination, revealed that the decision to build it was taken without "undertaking any sort of investigation in terms of safety issues."

While Tranz Rail argued that local pedestrian level-crossing collision rates are very low, international comparisons revealed an appalling death rate.

Figures showed 65 fatalities at level crossings in New Zealand (population 3.8 million) since 1993, which is an average of almost 10 per year, compared with three fatalities in Britain (population around 65 million) during 1996/97 (UK Railways Safety report). United States data showed similar anomalies: the US has only half the number of fatalities that we have in New Zealand on a per capita basis.

Part of the problem is that Tranz Rail has no designated safety manual and is protected by the Railway Safety and Corridor Management Act - an act drafted for a safety-conscious government department rather than a profit-driven private company which, in the year of Katie's death, won the Roger Award for "the worst transnational corporation in Aotearoa New Zealand."

The act enshrines in law that "rail service vehicles have the right of way" and is backed by the company's operating rules which state: a locomotive engineer who believes the line may be obstructed must only sound the whistle at a sufficient distance to give ample warning of the approach of a train. Trains are authorised, indeed encouraged, to pass through Glen Innes station - or any busy commuter station - at 100 km/h to meet their operating schedules.

Nor is Tranz Rail under any legal obligation to provide warning systems at public level crossings. When it does so, it shares costs with local authorities and Transit New Zealand on a 50/50 basis.

The costs of safety measures, when compared to the estimated cost of loss of a human life - which was put at $2.3 million - seems trivial. The price of an overbridge over one track at Glen Innes was estimated at $85,000 to $135,000. To span both tracks the cost rose to $100,000 to $140,000. Warning bells and lights are estimated to be worth from $15,000 upwards.

Most chilling is the evidence of train driver Norman Burnand who, confident that he had "the right of way," did not brake until half a second before impact. When the Connollys' lawyer, John Bergseng, questioned him about his attitude to a perceived problem, when he had been able to see Katie approaching the rails 200 metres away, he was upfront.

Asked Bergseng: "Because you've got the right of way, is it your assumption people will simply keep clear of the track?"

Burnand: "Yeah ... There would be no difference to being in a car and expecting people to keep off the road ... I can't drive predetermining what members of the public are going to do or not going to do, but just assess a situation. In this case it wasn't until the last minute I realised that something was going to happen - by then it was too late ... If you slowed down for everybody you saw on the track, we'd never go anywhere."

When asked if he would have braked had he personally recognised the child, he was staunch. "No - a pedestrian's a pedestrian."

Eight months later, when Frankovich released his findings, the Connollys are still concerned. Frankovich's report is damning. It reads in part, "The law has made it mandatory for a motorist to stop should there be a pedestrian on the crossing. Tranz Rail has ... created pedestrian crossings but, unlike in the former situation, a pedestrian is bound to give way to an oncoming train.

"While it is enshrined in the legislation that a train track is the exclusive corridor of rail traffic, nevertheless I consider that there should be a duty on the operators of rail traffic towards pedestrians using pedestrian crossings ... I am satisfied that had there been some form of alarm on the platform Katie would have reacted and not ventured across the railway tracks.

"For this reason it is imperative that Tranz Rail install alarm bells at the north end of the platform with a red flashing neon sign with the words 'Warning Train Approaching.'"

Frankovich, who had been personally shocked by the silence of the Silver Fern approaching Glen Innes station during his three fact-finding missions, made his second recommendation to the point: When trains round the bend down the 380m straight that they reduce speed from 80 km/h to 25 km/h. "By so doing the train would be losing eight seconds in its schedule instead of a possible life."

Tranz Rail's answer to the coroner's recommendations was dismissive. Four days later spokeswoman Nicola McFaul said that the company might scrap the crossing and force people to use the underpass or install lights and whistles. Slowing trains to 25 km/h through the station, however, was anaethma: "That would actually build a delay into the New Zealand transport network."

The Connollys' last remaining hope is that Labour Minister Margaret Wilson will take notice of their letters and include passenger and public safety issues in her upcoming ministerial inquiry into safety at Tranz Rail.

Meanwhile, Glen Innes station remains resolutely unsafe. Over 30 minutes one afternoon this week, 18 school children and workers used Tranz Rail's pedestrian crossing and only one stopped, looked or listened. The underpass is still long, gloomy and threatening. There are no security cameras and the larger warning signs, erected after Katie's death, are beginning to fade.

Says Sue Connolly wearily, "Tranz Rail are not obliged to be responsible for their own passengers. I hope this serves as a wake-up call for New Zealand and Auckland in particular ... There is no doubt about it, nobody was held accountable for Katie's death."