Rail staff duty of care - implications

[deltic]

I searched the forum but couldnt see a reference to this letter dating back to March from a train driver setting out implications on drivers and guards of increasing standards expected of staff in relation to duty of care. Dont know whether any response was received. Interested in peoples' views.

Copy of letter from a concerned driver sent to ORR, RMT and Sentencing Council ...
11 MARCH · PUBLIC
Duty of Care and the role of public facing railway staff.

I am prompted to write having been handed a document at my start of duty yesterday entitled “Health and Safety Offences by Organisations and Responsible Individuals. Effective from February 1st 2016. Taken from the Sentencing Council’s Definitive Guide”.

This document follows various other information impressed upon railway staff by way of official Notices, and Safety Briefs, all on the theme of “Duty of Care” and how various incidents on the UK railway network have resulted in front line staff being prosecuted under Health & Safety offences.

I am a train driver, and whilst I am confident in my ability to satisfy the technical requirements of my role (Attitude to work, route knowledge, traction knowledge, correct application of Rules) this latest document has left me in grave doubt over whether I am performing other aspects of my job correctly in the eyes of the law. I have a clean safety record and a good relationship with my superiors. What I doubt is the way I, and most of my colleagues, deal with the human element on our trains and stations. Specifically, turning a blind eye to serious overcrowding, drunkenness and dangerous behaviour, this might well keep the wheels turning, but what happens when something goes wrong?

I would therefore like clear and unambiguous answers to my following points.

Part of my role as a driver requires me to carry out Emergency Protection should the need arise. If I see a fallen tree across another line or similar hazard, the Rule Book (published by Rail Safety Standards Board - RSSB) requires me to take a number of actions including applying red flags and detonators ahead of the hazard, in order to stop oncoming trains. However, in common with many services operating right across the UK, the train is often so overcrowded that it is not possible for the driver to exit his cab in a safe and timely manner, sometimes not possible at all. If I knowingly allow my train to proceed in a state so overcrowded that it prevents me from carrying out my duties, will I be deemed as negligent in the event of an incident where the need to carry out the above was a factor? It should be noted that Guards also have the same responsibilities.

Part of my role as a driver requires me to manage incidents on board trains including emergency evacuation. In the industry this is called a “Controlled Evacuation”. Emergency equipment cabinets are located on board every train (but not in every carriage) and this equipment includes a ladder to allow escape from the train when not in a platform.. (a ladder which if deployed incorrectly becomes useless) and other rescue equipment. Again, it is often the case that trains are so overcrowded that it is impossible for train crew to reach these cabinets. If I knowingly allow my train to proceed in a state so overcrowded that it prevents me from carrying out these duties, will I be deemed as negligent in the event of an incident where the need to carry out the above was a factor? It should be noted that Guards also have the same responsibilities.

By way of safety briefs and training days, front line railway staff are regularly told that as an industry, we should aspire to the airline industry. Unlike the rail industry, the airline industry does not allow intoxicated passengers to travel. The Railway Bylaws in para 4.1 states “No person shall enter or remain on the railway where such person is unfit to enter or remain on the railway as a result of being in a state of intoxication.” but this Byelaw is regularly disregarded. The Byelaws exist, as is stated in their Introduction, “To ensure ease of travel and safety on the railway system...... the Byelaws need to be observed by everyone”. One of the reasons that intoxicated passengers are banned from air travel is to ensure the safety of other passengers. I wonder how I am to manage an onboard emergency on a train containing what might amount to hundreds of drunk people. If I knowingly allow my train to proceed with sufficient numbers of intoxicated people on board which might hamper or prevent me carrying out my duties in respect of on-board emergencies, will I be deemed as negligent in the event of an incident where the need to carry out the above was a factor? It should be noted that Guards also have simiilar responsibilities.

The Railway Byelaws also cover activity on platforms, including intoxication, also riding bicycles and similar conveyances - it is forbidden to ride such conveyances since they present a hazard to other passengers as well as the person using them. Every day of my shift, I, along with hundreds of other drivers will turn a blind eye and hope for the best when we approach a platform and see children performing stunts on skateboards, riding bikes & scooters, as well as fooling around..... People breaking Byelaws that are there to protect their own safety. Usually we may just sound the horn or possibly reduce our speed, but the present prosecution of a Merseyrail guard over an accident which happened involving a stationary train changes all this. I’ve heard sufficient in my Safety Briefs to know what I will be asked during the Inquiry: “Driver, we have correlated the CCTV footage with evidence from your onboard Data Recorder, and it has been established that you would have been able to see little Johnny performing stunts on the platform with his skateboard for a full 30 seconds before he fell onto the track. But it was only then that you braked. Why did you not act earlier to save his life?” This may sound far-fetched, but the legal precedents have already been set: When a member of the public is failing to take care of their own safety, Duty of Care then falls to the nearest member of railway staff. How far must I go as regards Duty of Care in situations such as this?

Back to the matter of overcrowding, this also happens on platforms as well as trains. Sometimes platforms can be packed to the edges... there is of course the risk that someone may fall, possibly through fainting in a crowded environment. In cases like this, there is NO such low speed that could prevent fatality. Therefore, If I knowingly allow my train to proceed into a platform so overcrowded that there is a reasonable chance of someone falling onto the track, will I be deemed as negligent in the event of an incident? Factor in drunken passengers to this situation and you will see that the risk is very real.

I realise that it may take some time for these questions to be answered, especially as legal insight is likely to be required. In the meantime I am happy to continue my duties as a Driver, however I am conscious of the need to be able to do this with confidence, and without distraction or worry.... After all, a significant number of incidents such as Signals Passed at Danger have distraction as their cause. Therefore I will assume the safest default position on each occasion that I encounter such risk, that is to say,

Not moving any train so crowded that it may impair my ability to carry out my duties in respect of Emergency Protection or other incident requiring access to Emergency Equipment.
Not moving any train which is carrying sufficient number of intoxicated passengers likely to impair my ability to manage an emergency situation.
Not allowing any train to move whilst there is any activity on platforms which may give risk to public safety, this includes overcrowding, use of wheeled conveyances and intoxicated passengers.
Not allowing my train to enter any platform where it can be seen that any of the risks mentioned above are present.
I hope that you will understand my position and I look forward to receiving clarification on the above points so that we can all work towards a safer, more efficient and happier railway.

Regards

Office of Rail Regulator
Sentencing Council
National Union of Rail, Maritime & Transport Workers

 

[GB]

Don't know what it's like on a pc but that's impossible to read on my iPad. Got to scroll way to far to the right.

 

[najaB]

Don't know what it's like on a pc but that's impossible to read on my iPad. Got to scroll way to far to the right.

Renders fine on my PC - and they're good questions.

 

[GB]

I'm back on my PC and yes is fine.

 

[philthetube]

I don't think these questions will be answered.

 

[PeterC]

Simple answer, the driver will be damned if he does and damned if he doesn't.

 

[neilb62]

I've copied this onto the ASLEF facebook page, will be interesting there for sure...

 

[deltic]

Taking this to a logical conclusion if there are further prosecutions where it is claimed staff are not fulfilling their duty of care I can see a rapid change in the rail network. This would consist of all stations having to be staffed and gated with staff turning away any passengers who are intoxicated or under the influence of any substance. Passengers allocated places on a train and not being allowed on to platforms without showing this reservation (doesnt require everyone to be seated but would limit number of passengers per train). Platform doors as per the London Underground Jubilee Line extension.

The implication would be that this would only be cost effective to apply at a limited number of stations and most of the network would have to be closed down.

 

[neilb62]

If the bylaws had been correctly adhered to then the incident at Liverpool James St wouldn't have happened and a Guard wouldn't be in prison. That is of course without parents sending their under-aged daughter out already drunk and drugged!

 

[Stigy]

It doesn't help when certain staff put clearly vulnerable people on to trains, be it that said persons pose a risk as they're intoxicated to the extent they can't walk or similar. I know it's nye on impossible on a Friday and Saturday night at some locations, to prevent intoxicated persons to travel, but staff need to be able to prevent those who are clearly vulnerable because of this travelling.

Unfortunately the Police don't help matters either, and I see all too regularly both local Police and BTP putting people on trains purely to "get them out of our hair".

 

[neilb62]

It doesn't help when certain staff put clearly vulnerable people on to trains, be it that said persons pose a risk as they're intoxicated to the extent they can't walk or similar. I know it's nye on impossible on a Friday and Saturday night at some locations, to prevent intoxicated persons to travel, but staff need to be able to prevent those who are clearly vulnerable because of this travelling.

Unfortunately the Police don't help matters either, and I see all too regularly both local Police and BTP putting people on trains purely to "get them out of our hair".

Got-it-in-one.....

 

[Shaw S Hunter]

If the bylaws had been correctly adhered to then the incident at Liverpool James St wouldn't have happened and a Guard wouldn't be in prison. That is of course without parents sending their under-aged daughter out already drunk and drugged!

For the sake of accuracy I would point out the minimal amount of drugs found in Georgia Varley during her post-mortem were so small that they would not have had any effect on her behaviour on that fateful night. I understand, to some extent, the irritation that some have with parents seeming to turn a blind eye to the use of recreational drugs, which includes alcohol, by their offspring but describing Georgia Varley as "drugged" on the night she died is somewhat wide of the mark.

 

[neilb62]

For the sake of accuracy I would point out the minimal amount of drugs found in Georgia Varley during her post-mortem were so small that they would not have had any effect on her behaviour on that fateful night. I understand, to some extent, the irritation that some have with parents seeming to turn a blind eye to the use of recreational drugs, which includes alcohol, by their offspring but describing Georgia Varley as "drugged" on the night she died is somewhat wide of the mark.

Oh I am sorry, we'll stick with drunk then shall we?

 

[Shaw S Hunter]

Oh I am sorry, we'll stick with drunk then shall we?

Blind drunk would actually be fair. Given the serious nature of the issues raised by this thread, some of which were relevant to James Street, I think sticking to facts is more helpful to the discussion.

 

[driver_m]

Blind drunk would actually be fair. Given the serious nature of the issues raised by this thread, some of which were relevant to James Street, I think sticking to facts is more helpful to the discussion.

Says the one who has decided for us that the drugs effect was minimal. What do you know about the effects of drugs on kids? Are you some kind of expert in the field?

 

[grumblingalong]

Is this a discussion about the document or about the incident at James St. About which I am sure there is an extensive thread somewhere.

 

[Domh245]

Says the one who has decided for us that the drugs effect was minimal. What do you know about the effects of drugs on kids? Are you some kind of expert in the field?

The RAIB reported that the toxicology report couldn't say for certain:

The toxicology report also recorded evidence of mephedrone in the young person’s blood. However, the report concluded that the drug’s influence on her behaviour was not known as there is little published information on expected blood concentrations following use or how quickly it is eliminated from the body.

But certainly saying that it had minimal/no affect on her at all would be rather presumptuous.

 

[BestWestern]

James St was, regretfully, down to staff negligence. Ideally the casualty wouldn't have been out drunk in the first place, but her death would have been prevented had the Guard acted differently. It's a tough one to swallow, but it also acts a firm reminder of exactly why salaries are what they are, and what is required in return.

We cannot campaign for Guards and point out the safety benefits of having them, but then turn a blind eye and blame somebody else when there is a failure to correctly carry out duties and serious consequences result.

There are many situations every day which raise serious concerns about inadequate measures making it impossible for staff guarantee public safety; James St however was not one of them.

 

[Richard_B]

An excellent letter raising a number of very difficult to answer questions. I suspect the time honoured tradition of the powers-at-be doing all they can to not deal with the difficult problems, and then if something goes wrong it gets stuck on the lower level.

Platform safety could be dealt with by picking a speed limit for the platforms when the train is stopping at the station, and saying if the train is below that there is nothing the driver could reasonably have done differently. This speed limit would have to not be in force for through trains, but their should be much fewer overcrowded platforms and little johnnys when the train isn't stopping.

 

[Shaw S Hunter]

Says the one who has decided for us that the drugs effect was minimal. What do you know about the effects of drugs on kids? Are you some kind of expert in the field?

Taken from the first paragraph of the RAIB report summary:

Her post-mortem toxicology report recorded a blood alcohol concentration nearly three times the UK legal drink drive limit and she was wearing high heeled shoes at the time of the accident.

Her drug use was only mentioned in the detail of the report suggesting that it was unlikely to have been of anything like the same significance in the outcome compared to the points above.

My objection to the description of her being "drugged", quite apart from the apparent attempt to demonise someone who is unable to respond, is that it deflects from the very much wider societal problem of alcohol abuse. Such abuse has been mentioned in the OP and is something that I have had to deal with myself while working trains on countless occasions. There are no simple answers of course but I think that there are too many people generally who refuse to accept just how much harm can come from the uneducated approach to alcohol demonstrated by so many on a daily basis.

It is unfortunate that Railway Byelaws on the subject are so routinely ignored by the very people who should be enforcing them, often on the grounds of pragmatism (or should that be lack of resources).

 

[bramling]

An excellent letter raising a number of very difficult to answer questions. I suspect the time honoured tradition of the powers-at-be doing all they can to not deal with the difficult problems, and then if something goes wrong it gets stuck on the lower level.

Platform safety could be dealt with by picking a speed limit for the platforms when the train is stopping at the station, and saying if the train is below that there is nothing the driver could reasonably have done differently. This speed limit would have to not be in force for through trains, but their should be much fewer overcrowded platforms and little johnnys when the train isn't stopping.

This crops up on London Underground from time to time. There is what I would describe as a school of thought which says train should not be exceeding 25 mph when entering a platform. Meanwhile, another vague school of thought says a train must be "under control" when entering a platform. How do you define under control? For a platform length of approx. 100m then in my view 25 mph is way too slow - it's quite possible in dry rail conditions to hit the platform at 35 mph and stop smoothly on the mark, which is what I'd define as "under control" - but it leaves zero margin if someone falls/jumps off the platform, in the same way that someone falling directly in front of the same train doing 25 mph would have no chance.

Meanwhile, if a train is doing 25 mph and something is happening on the platform, at what point is it reasonable to expect the driver to intervene and stop the train? How much focus is the driver supposed to give to monitoring the platform compared to observing the road ahead? These are all myths/interpretations which someone sometime thought was a good idea and have passed through certain trainers/trainees.

Personally I don't buy any of the above. The railway spends a lot of money on having signalling systems which communicate a limit-of-movement authority in one form or another, and providing the train is running under clear signals then personally I expect a train to be driven to the highest possible safe speed. When driving a train, what happens on the platform isn't my problem as far as I'm concerned. That's not to say I wouldn't take action if I see something unsafe, but it's simply not my primary concern. The only exception is if specifically requested by a signaller to enter a particular location at caution speed - in which case I'd drive at a speed where I can stop short of any obstruction/hazard, whatever that may be.

I agree that all the questions will be fudged, in time-honoured tradition. Unfortunately for all the recent focus on safety, there are still lots of "grey areas".
--- old post above --- --- new post below ---

James St was, regretfully, down to staff negligence. Ideally the casualty wouldn't have been out drunk in the first place, but her death would have been prevented had the Guard acted differently. It's a tough one to swallow, but it also acts a firm reminder of exactly why salaries are what they are, and what is required in return.

We cannot campaign for Guards and point out the safety benefits of having them, but then turn a blind eye and blame somebody else when there is a failure to correctly carry out duties and serious consequences result.

There are many situations every day which raise serious concerns about inadequate measures making it impossible for staff guarantee public safety; James St however was not one of them.

The trouble is that there will always be occasions when staff dispatch a train having had to make a judgement call on a particular set of circumstances. In the case of James Street my interpretation is the guard judged that the passenger was in a safe position and would move away. To me I see the whole thing as more of an error of judgement than negligent, which is why I remain of the opinion that the prison sentence was way too harsh.

 

[Shaw S Hunter]

The trouble is that there will always be occasions when staff dispatch a train having had to make a judgement call on a particular set of circumstances. In the case of James Street my interpretation is the guard judged that the passenger was in a safe position and would move away. To me I see the whole thing as more of an error of judgement than negligent, which is why I remain of the opinion that the prison sentence was way too harsh.

If, like me, you had seen the actual video footage rather than the stills in the RAIB report I very much doubt you would retain that opinion. Though I sympathise with your general point about making judgement calls. The risk to staff is complacency and James Street was a wake up call in that regard.

 

[bramling]

If, like me, you had seen the actual video footage rather than the stills in the RAIB report I very much doubt you would retain that opinion. Though I sympathise with your general point about making judgement calls. The risk to staff is complacency and James Street was a wake up call in that regard.

It's all very well forming conclusions based on CCTV, but it's no substitute for actually being there at the time, in the shoes of the person performing the task.

It's a pretty common occurrence for people to alight from a train, and then go to a window to gesture, wave to, communicate with (etc) persons still inside the train. When it happens you have to make a judgement. Personally I probably wouldn't have dispatched the train, but without being there it's impossible to say for sure what I may or may not have done.

 

[Shaw S Hunter]

It's all very well forming conclusions based on CCTV, but it's no substitute for actually being there at the time, in the shoes of the person performing the task.

It's a pretty common occurrence for people to alight from a train, and then go to a window to gesture, wave to, communicate with (etc) persons still inside the train. When it happens you have to make a judgement. Personally I probably wouldn't have dispatched the train, but without being there it's impossible to say for sure what I may or may not have done.

Hence my comment about complacency. My patch of railway included Liverpool so the James Street incident hit hard on all my colleagues when we realised just what sort of risks we had been habitually taking and the possible legal consequences arising from them. Once the trial was over and the appropriate learning points were briefed out it became very much the norm to refuse to dispatch late night trains with anyone "acting up" in the vicinity. This could even mean waiting until all alighting passengers had vacated the platform even though it guaranteed us not finishing on time. Interestingly during my initial training my trainer regularly made the point about getting dispatch right every time and not ending up in front of "the man or woman with the white wig".

 

[bramling]

Hence my comment about complacency. My patch of railway included Liverpool so the James Street incident hit hard on all my colleagues when we realised just what sort of risks we had been habitually taking and the possible legal consequences arising from them. Once the trial was over and the appropriate learning points were briefed out it became very much the norm to refuse to dispatch late night trains with anyone "acting up" in the vicinity. This could even mean waiting until all alighting passengers had vacated the platform even though it guaranteed us not finishing on time. Interestingly during my initial training my trainer regularly made the point about getting dispatch right every time and not ending up in front of "the man or woman with the white wig".

I agree with much of this.

The massive increase in CCTV over the last couple of decades, and in particular the fact that the quality of CCTV has generally improved, means any incident is likely to be subject to much greater scrutiny than in the past. Perhaps this is the bigger change, rather than "duty of care" expectation. I've no doubt that, where I am, had a similar incident occurred 25 years ago there would have been minimal if any CCTV, and any investigation would have been pretty short and sweet. Preferable days if it means you don't end up spending five years inside after making an innocent error of judgement.

 

[AlterEgo]

James St was, regretfully, down to staff negligence. Ideally the casualty wouldn't have been out drunk in the first place, but her death would have been prevented had the Guard acted differently. It's a tough one to swallow, but it also acts a firm reminder of exactly why salaries are what they are, and what is required in return.

We cannot campaign for Guards and point out the safety benefits of having them, but then turn a blind eye and blame somebody else when there is a failure to correctly carry out duties and serious consequences result.

There are many situations every day which raise serious concerns about inadequate measures making it impossible for staff guarantee public safety; James St however was not one of them.

Excellent post.

 

[eMeS]

Taking this to a logical conclusion if there are further prosecutions where it is claimed staff are not fulfilling their duty of care I can see a rapid change in the rail network. ...

Does ALARP apply to the UK Rail Network? And with non-UK owned TOCs?
(ALARP - As low as reasonably practicable.
see http://www.hse.gov.uk/risk/theory/alarpglance.htm)

 

[Antman]

It doesn't help when certain staff put clearly vulnerable people on to trains, be it that said persons pose a risk as they're intoxicated to the extent they can't walk or similar. I know it's nye on impossible on a Friday and Saturday night at some locations, to prevent intoxicated persons to travel, but staff need to be able to prevent those who are clearly vulnerable because of this travelling.

Unfortunately the Police don't help matters either, and I see all too regularly both local Police and BTP putting people on trains purely to "get them out of our hair".

But what else are the police supposed to do? The sooner they're on their train the sooner they'll be at home sleeping off their alcohol consumption.

 

[LowLevel]

But what else are the police supposed to do? The sooner they're on their train the sooner they'll be at home sleeping off their alcohol consumption.

On my trains they get stuffed. I've never agreed to a 'take these home for us mate' from the BTP since they put a group of drunks on that had been thrown off another train who as soon as we were clear of the station started urinating and puking in a doorway. They then verbally abused another passenger and had a go at breaking a window.

Their resourcing problem is not theirs to make mine. They travel with them or they stay.

If they're that bad then keep them off the station and if they refuse lock them up. Let them pay for a black cab or walk.

Why should this social issue be something that we just have to deal with because they've chosen to drag their sorry behinds on to our property?

 

[Tim R-T-C]

To add to the driver's list - crossing over from another thread, there was mention of a driver on a DOO service having to attend to a passenger who had fallen on an unmanned station and wait with them for 50 minutes until an ambulance arrived.

At what point does a driver's legal responsibility for someone end. When they are on the platform, when they have left the station but still visible?