Schoolboys left injured after playing near rail line to sue over 'psychological trauma'

[CeeJ]

Can't see how they can cite lack of evidence in this case.

There's evidence, but it would likely fail the public interest test (Code for Crown Prosecutors, p. 7)

4.7 In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

4.8 It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of- court disposal rather than bringing a prosecution.

Pages 8-10 outline the questions that are asked, and the answer to most of them in this case would not result in prosecution.

 

[AlterEgo]

I've never heard a family whose relative has passed away due to stepping out in front of a train, sueing the railway on the grounds they have liability as it's a dangerous place for example? Has this ever happened?

Happens quite a lot. Google Olivia Bazlinton.

 

[OuterDistant]

People sueing McDonalds for the coffee being too hot?

Assuming you're referring to Liebeck v McDonald's Restaurants, i.e. they were serving coffee hot enough to cause third degree burns, then yes.

 

[eastdyke]

A view from the ORR (Annual H&S Report 2017-18 - published 17th July 2018)
http://orr.gov.uk/__data/assets/pdf_file/0007/28348/annual-health-and-safety-report-2017-18.pdf
Extract:

Unauthorised access to freight sites
114. In June 2017 there were two incidents where
young people gained access to freight sites
and received electric shocks after coming into
contact with live overhead line equipment.
The incident on 1 June 2017 at Bescot Yard,
West Midlands resulted in a 13 year old youth
sustaining serious electrical burns. On 27 June
2017, an 11-year-old boy was fatally injured at a
rail freight terminal in Daventry.

115. Activities: Immediately following each of the
incidents, ORR launched investigations. These
investigations are still ongoing. Inspectors also
took action to address immediate risks at the
time of the incident, issuing improvement notices
to require railway dutyholders to take steps
to prevent, so far as is reasonably practicable,
unauthorised access to railway infrastructure.
We wrote to railway infrastructure managers
and dutyholders to remind them of their legal
duties to prevent unauthorised access and have
engaged with a number of freight customers
on these issues. ORR inspectors have checked
arrangements to prevent unauthorised
access at freight sites during announced and
unannounced inspection visits.

116. Conclusions: The challenge of reducing
unauthorised access to Britain’s railways
is one that requires input from all railway
stakeholders. However, the law imposes
very clear duties in relation to prevention of
unauthorised access on those organisations in
control of railway infrastructure.

117. The incidents at Bescot and Daventry highlight
the importance of dutyholders carrying out
suitable and sufficient risk assessments
and putting in place appropriate control
measures to prevent unauthorised access.
Furthermore the incidents demonstrate the
tragic consequences that can result from people
gaining access to railway sites

Seems to me to be quite clear where they (ORR) stand on the issue of unauthorised access.

 

[neilmc]

I sometimes think I now live in a nation of lunatics. A railway is merely a means of transport involving vehicles running on rails rather than on the road. There should be no need to fence in the entirety of the UK railway, other nations don't and I don't see massive numbers of people killed by accidentally straying on to the tracks. Neither should there be any specific trespass laws which don't apply to private property elsewhere. If I get drunk in Blackpool and walk under a tram on the promenade it's my own silly fault. If I'm a Wythenshawe scally who sniffs some glue (is this still fashionable?) and gets run over by a Metrolink tram on the street section it's my own silly fault. Ditto if I climb on top of a tram and get electrocuted. Rails shouldn't mean anything other than something at some time is likely to come along those rails so you stay clear.

In the 1960s the railway was "fenced" largely by a couple of wooden bars over which kids leant and waved to engine drivers. Loco sheds had virtually open access, especially towards the end of steam. If you went round a shed, fell in a pit, got run over or electrocuted it was your own silly fault, end of story (though I never heard of this happening!). We even did a legal shed visit to Selhurst with permit and all stepped over the electrified third rail. "Trauma" was what you suffered when you failed to see a good engine, or had gone trainspotting instead of doing your homework.

I was relaying this story to my wife today and she correctly predicted the outcomes even though she knows next to nothing about the rail industry. Teenage kids shouldn't be treated like babies, they knew they weren't supposed to be there and were being criminally stupid to boot. Should be end of story, but it won't be.

 

[cjmillsnun]

Had they been the age they are now, and therefore 'young persons' rather than children, I suspect the lawyers wouldn't be bothering to bring the case.

I guess it'll hinge on how much the judge thinks a 13yr old child can be expected to know about the danger of 25Kv OLE (assuming the absence of clear warning signs all over the place). I'd expect the railyard will be found against.

I think perhaps they should start showing Robbie at schools again.

 

[Basher]

I thought it was widely known that trespass isn't a crime, but I guess I was wrong!

Trespass is not a crime except on crown property ie railways.

 

[mmh]

In that case, is Network Rail as a landowner supposed to put signs along the whole of the line saying 'Danger, trains run at high speed, danger of death' every 200 yds as a duty of care to trespassers?

'Know that a trespasser is in danger or come into the vicinity of danger'? Yeah 25000v of danger if you choose to trespass, and 125mph trains may appear around bends suddenly without warning of approach

Trains which travel (or could) under overhead lines have the orange cantrail stripe and the "Danger Overhead Live Wires" warning signs

There's no win no fee ads all over the TV on the digital channels.

Yes the ambulance chasing culture is real. Whose fault is it though?

And yet at the same time there are other civilised countries where passengers can ride on top of trains, fall off, and then the next day it still happens all over again with no legal action.

Presumably you mean India or elsewhere where that's the stereotype image of their railways? I'll stick my neck out here and say India is not a "civilised country" by many measures we'd use to judge that in the west.

Mostly we hear about individuals sueing companies or businesses for compensation for not taking due care and yet at the moment the individuals themselves don't always have to take responsibility for their part of the blame.

That, ambulance chasers admitted, is what courts are for.

How long until you can't have your front gardens a certain way for fear of trespassers coming onto your property, or being 'lurred' in by something attractive and then hurting themselves?

Already. If a bit your house falls down and hits your postman, expect some questioning. Put some electrified rail or OHLE in your front garden, expect to go to prison if it kills someone.

 

[AlterEgo]

Trespass is not a crime except on crown property ie railways.

Railways aren’t the property of the Crown.

Trespass is also a crime at a multitude of other places, like airports. It’s also a crime if it’s aggravated, such as being there for the purposes of committing another crime.

 

[DarloRich]

I sometimes think I now live in a nation of lunatics. A railway is merely a means of transport involving vehicles running on rails rather than on the road. There should be no need to fence in the entirety of the UK railway, other nations don't and I don't see massive numbers of people killed by accidentally straying on to the tracks. Neither should there be any specific trespass laws which don't apply to private property elsewhere. If I get drunk in Blackpool and walk under a tram on the promenade it's my own silly fault. If I'm a Wythenshawe scally who sniffs some glue (is this still fashionable?) and gets run over by a Metrolink tram on the street section it's my own silly fault. Ditto if I climb on top of a tram and get electrocuted. Rails shouldn't mean anything other than something at some time is likely to come along those rails so you stay clear.

In the 1960s the railway was "fenced" largely by a couple of wooden bars over which kids leant and waved to engine drivers. Loco sheds had virtually open access, especially towards the end of steam. If you went round a shed, fell in a pit, got run over or electrocuted it was your own silly fault, end of story (though I never heard of this happening!). We even did a legal shed visit to Selhurst with permit and all stepped over the electrified third rail. "Trauma" was what you suffered when you failed to see a good engine, or had gone trainspotting instead of doing your homework.

I was relaying this story to my wife today and she correctly predicted the outcomes even though she knows next to nothing about the rail industry. Teenage kids shouldn't be treated like babies, they knew they weren't supposed to be there and were being criminally stupid to boot. Should be end of story, but it won't be.

Yet again: The key case in this area dates from 1972...............................

Trespass is not a crime except on crown property ie railways.

Well said. Agree with you on all counts

These statements are incorrect.

 

[Gostav]

I cannot imagine what happen if those children with their parents living in the East like this goods yard just nearly street.
When l was child l always visited engine shed and goods yard in my country but l never did some danger thing. During l was very young my father taught me third rail (only in subway) and catenary can kill me and trains are not toy, crossing track must be carefully. Also l never thought about climbing the roof under catenary.

 

[farleigh]

I cannot imagine what happen if those children with their parents living in the East like this goods yard just nearly street.
When l was child l always visited engine shed and goods yard in my country but l never did some danger thing. During l was very young my father taught me third rail (only in subway) and catenary can kill me and trains are not toy, crossing track must be carefully. Also l never thought about climbing the roof under catenary.

Good post

 

[mmh]

A country having lower standards is no reason for another country to lower theirs.

 

[LOL The Irony]

Mr Hannington said he was taking legal action against the rail company which operated the yard because they failed to take adequate measures to stop people trespassing.

So since that lawyer is an ambulance chaser type, I assume he means watchtowers every 5 meters, manned by SAS snipers. So he can then sue for the kids being shot instead of electrocuted. And if the kids climbed over the fence instead and one slipped and broke their neck, would he sue saying the fence should be lower? This could have been solved by I don't know, not playing on the railway?

 

[pt_mad]

Already. If a bit your house falls down and hits your postman, expect some questioning. Put some electrified rail or OHLE in your front garden, expect to go to prison if it kills someone.

What about if someone left a petrol lawnmower on the front garden propped against the house, 100yds in from the pavement while they nipped in to go the toilet. And some clever-dic started it up and ran over their shoe? Would the homeowner be in trouble for not having a sign up warning of danger or for not having a fence up to prevent them from trespassing?

What about these houses that have an old banger car outside with a wheel off or something that they are planning to do up? If someone came and started messing about with it and got their foot caught is it again the homeowner's fault?

Those kids that used to ride around on old bikes with no brake pads on, if they leave it on their front drive and some kid trespasses and steals it and crashes due to no brakes, is it the owner of the push bike's fault?

It seems to be all the same sort of thing, except it is private citizens in these examples that could be sued and not companies, businesses, agencies, authorities or bodys.

 

[Bromley boy]

What about if someone left a petrol lawnmower on the front garden propped against the house, 100yds in from the pavement while they nipped in to go the toilet. And some clever-dic started it up and ran over their shoe? Would the homeowner be in trouble for not having a sign up warning of danger or for not having a fence up to prevent them from trespassing?

Why don’t you read the relevant legislation and case law as referenced and linked-to many times above?!

Then you can tell us the answer.

 

[pt_mad]

Why don’t you read the relevant legislation and case law as referenced and linked-to many times above?!

Then you can tell us the answer.

I don't think I could interpret it with regards to these cases thats why I asked? To be fair I suppose thats why they have judges, as we are not qualified to answer.

 

[Bromley boy]

I don't think I could interpret it with regards to these cases thats why I asked? To be fair I suppose thats why they have judges, as we are not qualified to answer.

Give it a go.

Apply the available statute and case law to to the facts you have presented and come to a view!

It’s an interesting intellectual exercise (and judges get this stuff wrong all the time).

 

[SussexMan]

The cost of bringing a case like this will be significant. I assume there are three possible options.

• The families have successfully applied for Legal Aid. Legal Aid for personal injury is not automatic and is only available in exceptional cases. There would have to be a "merits" discussion.
• A law firm has agreed to take the case on under a conditional fee arrangement (no win, no fee). They must have assessed the case as worthwhile as the upfront costs will be high.
• The family have personal resources and a law firm has advised them that there is a reasonable chance of success.

Therefore I assume that the solicitors are confident there is a case to answer.

 

[Steamysandy]

Im reminded of a story about a similar incident in Glasgow many years ago
The parents reaction was - They knew the kids were going to be on holiday,they should have SHUT the power OFF!

 

[DarloRich]

Why don’t you read the relevant legislation and case law as referenced and linked-to many times above?!

Then you can tell us the answer.

thank you - read the available information and learn about the subject.

The cost of bringing a case like this will be significant. I assume there are three possible options.

• The families have successfully applied for Legal Aid. Legal Aid for personal injury is not automatic and is only available in exceptional cases. There would have to be a "merits" discussion.
• A law firm has agreed to take the case on under a conditional fee arrangement (no win, no fee). They must have assessed the case as worthwhile as the upfront costs will be high.
• The family have personal resources and a law firm has advised them that there is a reasonable chance of success.

Therefore I assume that the solicitors are confident there is a case to answer.

there is very clearly a case to answer.

 

[Bletchleyite]

On the subject of trespass discouragement, this:

http://www.youvstrain.co.uk/film

is quite a good modern day film, but doesn't seem *quite* as hard hitting as the 1980s ones. Possibly because the kids that feature are more like young adults than the very young kids in the 1980s versions? And possibly because while he received life changing injuries he did survive a belt from the 25kV, which is a minor miracle in itself?

Edit: the subject is 16. Still tragic, and highlighting how older teens have a lot more freedom yet still very poor risk assessment capability, but somehow not as hard hitting as the 10-12 year old that featured back then.

 

[700007]

There was an incident at Goodmayes this morning on the GEML. A person tried to take a shortcut accross the running lines and was hit by a train. Understand the individual lost both legs but has survived.

Believe they only lost their right leg but indeed they are in a critical state in hospital.

 

[cuccir]

On the matter of knowledge and risk taking that has been discussed - DarloRich is spot on in saying that there's plenty of evidence that adolsecents are more motivated to take risk, and poorer at assessing risk, than adults.

This is a nice, open access summary article from 2010. A short extract is indicative, describing the 'dual systems' model of adolescent cognitive development

According to this dual systems model, adolescent risk-taking is hypothesized to be stimulated by a rapid and dramatic increase in dopaminergic activity within the socioemotional system around the time of puberty, which is presumed to lead to increases in reward-seeking. However, this increase in reward-seeking precedes the structural maturation of the cognitive control system and its connections to areas of the socioemotional system, a maturational process that is gradual, unfolds over the course of adolescence, and permits more advanced self regulation and impulse control.

The temporal gap between the arousal of the socioemotional system, which is an early adolescent development, and the full maturation of the cognitive control system, which occurs later, creates a period of heightened vulnerability to risk-taking during middle adolescence.

In other words, adolescents develop the mechanisms for reward-seeking and risky behaviour before they develop the cognitive control systems that facilitate self-regulation and control.

I should point out that this is a conceptual model, although it is supported by significant amounts of evidence (eg see a 2016 review). The authors of both articles note too that risk-seeking behaviour and brain development are not the same in everyone. In other words, individual brain development happens at different speeds and risk-taking will depend on social effects too. But this model holds for the majority of adolescents. So the evidence is pretty strong that simply telling teenagers that a particular activity is dangerous is not as effective as it is in adults.

I don't know the extent to which this changes the legal case, but it does at least I think add some weight to the notion that the average 13 year old who sees a hole in a fence may reasonably be expected to be more likely to go through it than both younger children who have not yet developed the same reward-seeking behaviour, and people over 20 who should have developed self-control.

 

[zaax]

There is an article in one of the newpapers this morning were the driver of a speeding car killed an 8 year old boy, and Eagle Star insurance are suing the mother saying he should have been kept indoors. The judge cucked it out, but Eagle Star are appealing.

 

[Bantamzen]

I sometimes think I now live in a nation of lunatics.

Its far worse than that, we live in a nation of lawyers (and middle managers). If you are familiar with Douglas Adams' 'Hitchhiker's Guide to the Galaxy', think Ark 'B'

(If you are not then apologies, but this link gives the basic background:

http://hitchhikers.wikia.com/wiki/Golgafrinchan_Ark_Fleet_Ship_B )

 

[Geezertronic]

Seems to be a US thing, do something you're not supposed to do then sue if you get injured as a result. Rewards for the stupid, crime does pay - I'll have to try it myself because it must be me who is stupid for not trying it

 

[al78]

Seems to be a US thing, do something you're not supposed to do then sue if you get injured as a result. Rewards for the stupid, crime does pay - I'll have to try it myself because it must be me who is stupid for not trying it

I get the impression there is a lot of over-exaggeration on here.

Of all the seemingly ridiculous court cases, what percentage actually succeeded for the idiot who was careless/breaking the law? Pulling out a few high profile cases and projecting those onto every similar case that has ever come up in court is fallacious reasoning. Use logic and evidence to deduce, not feeling and emotion.

 

[185]

Tis an interesting one, and whilst I am inclined to air on the side of slating the kids for doing the stupidest thing - if there have been holes in the fence then to some degree I can blame the sloppy landowner too.

My employer uses OHL, and in fairness does try hard to monitor the boundary fences surrounding the depots for gaps/damage - usually potential metal thieves but also to prevent little explorers from wandering in.

Locally the schools have been getting visits from some updated & more politically correct version of what we had age 11 - which back then resembled a slide show of big old locos, severed limbs and kentucky fried children - most of us didn't sleep for months after.

 

[Geezertronic]

I get the impression there is a lot of over-exaggeration on here.

Of all the seemingly ridiculous court cases, what percentage actually succeeded for the idiot who was careless/breaking the law? Pulling out a few high profile cases and projecting those onto every similar case that has ever come up in court is fallacious reasoning. Use logic and evidence to deduce, not feeling and emotion.

Of course you are correct, just seems there are more and more cases like this where idiotic people think they have a right to sue because of some "Ambulance chasing lawyer" says they have a case, forgetting that they wouldn't be injured but for the fact that they put themselves in that position. Prisoner payouts are another bugbear but that is for another thread