Refusal of compensation

[ChrisMull]

On 1st Nov 2018 the 15.26 service from cardiff central got stuck outside of swindon for over 1 hour. The train conductor stated that the train had lost air pressure and we had to wait for an engineer from swindon to come out. He confirmed the engineer fixed the train and mentioned compensation for delays over 1hr. I got in contact with customer service for the 50% refund as it was a return ticket delayed less than 2hours. They have told me that they cannot provide compensation because the incident was recorded as pheasants on the track. This just appears to be a blatant lie as we were updated the entire time on the train faults and engineers arrival. I have messages to my sister during this which states what the announcements had informed. How can I proceed?

 

[najaB]

They have told me that they cannot provide compensation because the incident was recorded as pheasants on the track. This just appears to be a blatant lie as we were updated the entire time on the train faults and engineers arrival.

The two aren't necessarily mutually exclusive -
the train may have lost pressure after hitting pheasants.

 

[ChrisMull]

The announcement even mentioned applying for compensation as it had been over an hour? I'm wondering whether this has affected anyone else on the same service as most people seemed sure they were going to claim. On the train they also stated it was a fault with the train hence why this seems suspicious.

 

[najaB]

On the train they also stated it was a fault with the train hence why this seems suspicious

Again, it's not necessarily a conspiracy. At the time all the driver would know is that the train's lost pressure. It might not be apparent until it gets back to the depot what the actual cause was.

 

[Starmill]

GWR havw tried to do this to other forum members, and they are usually wrong in those cases.

The NRCoT permits them an exception only if the cause of the delay was "entirely outside of the Railway Industry's control". The conductor's announcements make it clear that this exception cannot apply.

I would write back to them stating that they aren't able to use that exception and requesting your compensation payment.

 

[najaB]

The NRCoT permits them an exception only if the cause of the delay was "entirely outside of the Railway Industry's control". The conductor's announcements make it clear that this exception cannot apply.

I believe, but am happy to be corrected, that large animals getting onto the track (e.g. sheep, cows with pantographs, etc.) is classed as being within the railway's control, but small animals and birds are not. So if the brake damage was caused by pheasant then it would be excluded.

 

[Mag_seven]

GWR seem to have form in trying to wriggle out of paying compensation on "technicalities" e.g.

https://www.railforums.co.uk/threads/gwr-delay-compensation-dispute.174692/#post-3782998

GWR originally agreed to pay the full £21.45 back (travelling on advance 1st singles)
They've now incorrectly cancelled the compensation, saying that it was a LTV service and only 50% is due, paying out £10.73

https://www.railforums.co.uk/thread...n-poor-adhesion-not-a-valid-criterion.174020/

I recently had a delay repay claim to GWR rejected. The cause of the delay was extremely poor adhesion from my starting point of Newbury, causing me to miss a connecting train at Reading.

GWR have rejected my claim because:


However, according to the GWR Compensation for Delays form, this is not the case:


I would argue that poor adhesion due to leaves is inside the industry's control, given the use of MPV water cannon trains to clear the leaf mulch off the railheads. This of course is not Network Rail's responsibility and not GWR's, however the wording is "industry control", so arguing about TOC vs NR isn't relevant for the purposes of delay repay. I can't see any other information about this on the GWR site. Can anyone here clarify if my claim is in fact valid or not?

The sooner they are on delay/repay like almost everyone else the better.

 

[tiptoptaff]

Bird strikes are deemed outside the control of the railway, so under the Passenger Charter, they do not have to compensate. All the TM would have known at the time is that they had lost air, not why. So I totally diagree with Starmill that the TM's announcements don't make it outside the control of the railway. If it had been a train fault, then it would be in the control of GWR. But, as it was caused by a bird strike, it is not.

The logic being that large animals can be kept off the railway by adequate fences - small animals can simply burrow under, birds can fly over. Which, surprisingly for the railway, seems eminently sensible.

It's not a conspiracy, the TM was providing the best information they had available at the time. Perhaps you would rather they have not made any announcement about something you may have been entitled to?

I also tried to look up the train in question for actual delay, but TRUST doesn't seem to store the train running data that far back.

As an employee, I agree that delay repay cannot be introduced a moment too soon. But for now, this is what we're stuck with.

 

[talltim]

It isn't "entirely outside of the Railway Industry's control" For example if linesides were kept clear then cover-loving birds like pheasants would be far less likely to be be close to the line. They could also design the brake equipment to be bird-strike proof.
I'm not saying that these things are possible with the resources the railway has, but they can't claim that such events are "entirely outside of the Railway Industry's control"

 

[tiptoptaff]

It isn't "entirely outside of the Railway Industry's control" For example if linesides were kept clear then cover-loving birds like pheasants would be far less likely to be be close to the line. They could also design the brake equipment to be bird-strike proof.
I'm not saying that these things are possible with the resources the railway has, but they can't claim that such events are "entirely outside of the Railway Industry's control"

Are you seriously suggesting that the railway can control where birds fly?

 

[furlong]

So did the company (i.e. the conductor) originally tell you the incident was one for which you were actually entitled to compensation or merely that it might be and he didn't know? There is now a Rail Ombudsman, and if you can frame the argument in terms of whether or not it is acceptable for a company to change retrospectively a communicated decision that it would pay compensation for a specific incident (rather than the original incident itself which would be before the scheme began) you might be able to pursue this through that route.

 

[Mojo]

It isn't "entirely outside of the Railway Industry's control" For example if linesides were kept clear then cover-loving birds like pheasants would be far less likely to be be close to the line. They could also design the brake equipment to be bird-strike proof.

They could also speed up their response to incidents, meaning that delays aren't so lengthy. To try and write this off as outside the control of the industry is disingenuous. Bad things happen, but there are plenty of things the railway industry as a whole could do in order to reduce the likelihood, and when things do happen, to mitigate against and reduce the impact of.

 

[ForTheLoveOf]

They could also speed up their response to incidents, meaning that delays aren't so lengthy. To try and write this off as outside the control of the industry is disingenuous. Bad things happen, but there are plenty of things the railway industry as a whole could do in order to reduce the likelihood, and when things do happen, to mitigate against and reduce the impact of.

Indeed - there's an argument to say that pretty much the only kinds of delays that truly are outside the rail industry's control is freak weather, landslides, flooding etc.

 

[tiptoptaff]

Indeed - there's an argument to say that pretty much the only kinds of delays that truly are outside the rail industry's control is freak weather, landslides, flooding etc.

Again, how are the railway supposed to control the flight of birds?

 

[najaB]

They could also speed up their response to incidents, meaning that delays aren't so lengthy. To try and write this off as outside the control of the industry is disingenuous.

We've had this argument before (in respect of bridge strikes last time). Yes, you can make *anything* within the control of the railway (duplicates of all signalling, hot spare stock standing by at every station, two staff members for every job to cover sickness, etc.) But at the end of the day, birds fly where birds fly and, short of culling every pheasant in the UK, at some point a train and bird are going to try and occupy the same point in spacetime.

And there's nothing the railway can do to prevent it.

Unless the incident happened fairly close to where the fitters come from, over an hour seems quite reasonable for a fix. Let's assume that 'outside Swindon' means a 20 minute drive for the fitter, the timeline likely goes something like this:

T+0m: The train loses air. Driver tries to get air back again.
T+15m: Having tried several things, including walking the length of the train to see if there's a loose hose, driver calls for a fitter
T+20m: Control gets hold of the fitter, (s)he gets the necessary bits and bobs and hits the road.
T+45m: Fitter is on site, gets to work.
T+60m: Work finished
T+65m: Train has air, is capable of movement, signaller advised
T+70: Route set, train away

So that's over an hour in best-case scenario. Throw in rush-hour traffic, a stubborn hose connector or an inaccessible location and it could be double that easily.

 

[najaB]

Indeed - there's an argument to say that pretty much the only kinds of delays that truly are outside the rail industry's control is freak weather, landslides, flooding etc.

Then they built the line in the wrong place.

 

[Bletchleyite]

Again, how are the railway supposed to control the flight of birds?

They can control habitats on their land, and design trains to be more resistant to hitting them.

Almost everything is within their control in some way. For instance, even suicides can be reduced by way of fast-line fencing and additional staffing and CCTV.

Hence Delay Repay - it's easier just to cough up and stop arguing about it.

FWIW I do wonder if Delay Repay 15 is too generous, but it does at least pay out where there are cases of sloppy timetabling and do motivate the railway to fix those.

 

[najaB]

Almost everything is within their control in some way.

If you want to make it so, yes.

Hence Delay Repay - it's easier just to cough up and stop arguing about it.

Agreed. Anything that stops arguments about fairies dancing on pinheads.

 

[6Gman]

If you want to make it so, yes.
Agreed. Anything that stops arguments about pheasants dancing on pinheads.

Just fixed that for you.

 

[Mag_seven]

It's a bit worrying that a pheasant (or pheasants) can disable a train.

 

[tiptoptaff]

It's a bit worrying that a pheasant (or pheasants) can disable a train.

The approach to Swindon is 85mph on the Up. Pheasants weigh over a kilo. That's a lot of force at that impact speed (assuming pheasant isn't moving directly towards the train at any speed)

 

[33017]

Interestingly, from a TDA point of view a train delayed striking a pheasant or larger bird is the responsibility of Network Rail but smaller birds are the responsibility of the TOC. Presumably, the expectation is trains should be able to withstand striking pigeons, crows, etc. but not, for example, geese.

 

[JN114]

Interestingly, from a TDA point of view a train delayed striking a pheasant or larger bird is the responsibility of Network Rail but smaller birds are the responsibility of the TOC. Presumably, the expectation is trains should be able to withstand striking pigeons, crows, etc. but not, for example, geese.

From a TDA standpoint you’re correct - but that principally boils down to someone having to be responsible for each and every delay. Whether NR or TOC is responsible for the delay from a TDA perspective has no bearing as to whether - in the eyes of passenger charter compensation - the delay is within the control of the railway.

Fatalities can be attributed to NR or TOC/NR split depending on location, but they’re always outwith the control of the railway.

 

[Starmill]

So I totally diagree with Starmill that the TM's announcements don't make it outside the control of the railway. If it had been a train fault, then it would be in the control of GWR. But, as it was caused by a bird strike, it is not.

The original poster tells us that the Train Manager specifically said that as the delay was over an hour they'd be entitled to claim compensation for the delay. In my view this makes it plain that GWR must pay the compensation.

You can disagree all you like, but it wouldn't change what was said.

 

[tiptoptaff]

The original poster tells us that the Train Manager specifically said that as the delay was over an hour they'd be entitled to claim compensation for the delay. In my view this makes it plain that GWR must pay the compensation.

You can disagree all you like, but it wouldn't change what was said.

The poster said the TM mentioned claiming for the delay, not that they were definitively entitled to it.

The OP does not say at any point the TM said that anyone was entitled to anything, only that they mentioned passengers could apply as the delay had met the 1hour threshold for eligibility to be considered.

 

[najaB]

The original poster tells us that the Train Manager specifically said that as the delay was over an hour they'd be entitled to claim compensation for the delay.

And they were entitled to make a claim since the delay exceeded the threshold.

In my view this makes it plain that GWR must pay the compensation.

Being eligible to make a claim doesn't mean that the claim will automatically be successful.

 

[Mag_seven]

Indeed - there's an argument to say that pretty much the only kinds of delays that truly are outside the rail industry's control is freak weather, landslides, flooding etc.

Even then the rail industry can still mitigate against some of those - e.g. adequate drainage, enhanced embankment stabilisation etc. Question is how much can be done and at what point does it not become economic to do anything further because the risk is so small.

 

[ForTheLoveOf]

Even then the rail industry can still mitigate against some of those - e.g. adequate drainage, enhanced embankment stabilisation etc. Question is how much can be done and at what point does it not become economic to do anything further because the risk is so small.

This is true: I think it is fair to put the limit at what an insurer might term an 'act of God'.

 

[Starmill]

@ChrisMull in my view, the evidence as presented is overwhelming:

The train conductor stated that the train had lost air pressure

On the train they also stated it was a fault with the train

In addition to this, there was a mention on the train of compensation availability to delayed passengers on that train specifically.

People can do all of the fussing they like about the nature or size of birds, but the OP suggests that this information wasn't even given at the time, while the information that there was a train fault, and the suggestion of compensation was.

If I were the OP I would take this forward on the basis that the delay has been announced as being due to a train fault, and that this suggests strongly that the exception does not apply - what is more it had even been suggested that the should apply for compensation, not led on a wild goose chase with claims where an exceptional clause might apply.

If GWR have decided to amend their story retrospectively, giving a different reason for the delay at customer services to that given on the day, then they may insist on this if you contact them again. You then have the choice to open a case at the Rail Ombudsman, or not.

To try and write [a delay of over 60 minutes] off as outside the control of the industry is disingenuous.

This is absolutely spot on.

 

[najaB]

In addition to this, there was a mention on the train of compensation availability to delayed passengers on that train specifically.

You can read whatever you want into what's been posted, but unless the TM guaranteed that compensation would be paid then any claim will be subject to the T&C's.