Arriva Wales compensation

[LisaH]

I travelled from Manchester to Ferryside on 14th August The 11:15 train was cancelled due to a car hitting a bridge, so we got the 12:15 delaying us by 1 hour and 2 minutes. Arriva have turned down my claim for compensation as due to circumstances beyond their control. Is there anything I can do or is that just the way it is?!

 

[ForTheLoveOf]

I travelled from Manchester to Ferryside on 14th August The 11:15 train was cancelled due to a car hitting a bridge, so we got the 12:15 delaying us by 1 hour and 2 minutes. Arriva have turned down my claim for compensation as due to circumstances beyond their control. Is there anything I can do or is that just the way it is?!

The National Rail Conditions of Travel (NRCoT) set out, under Condition 33, that passengers are entitled to compensation in respect of certain qualifying delays to their journey. The main condition to qualify for compensation is that the delay must be at least 60 minutes - or less, if thus specified in the relevant TOC's Passenger Charter. Condition 33.4 gives the right to the TOCs to refuse to compensate where the cause of the delay was "entirely outside the control of the rail industry"; if TOCs wish to engage this exemption then they must include it in their Passenger Charter.

In this particular case, Arriva Trains Wales (ATW) have indeed included the NRCoT 33.4 exemption in their Passenger Charter. Therefore, where a delay would qualify for compensation - but for the fact that the cause of the delay was "entirely outside the control of the rail industry" - they are entitled to refuse to pay compensation. You have a variety of consumer rights in addition to those set out in the NRCoT's delay compensation scheme; however, I don't think they are engaged here as they refer to the trader (i.e. ATW) performing the service with reasonable care and skill. For a delay cause whose origin is fundamentally not the railway's fault (i.e. a bridge strike) there would have to be a fair level of negligence by ATW for this to apply.

Now, having said all that, whether or not ATW can make use of the NRCoT 33.4 exemption in your case will depend on the exact facts of the matter. There is an important distinction to be made, when determining whether or not ATW can use the exemption, between causes of delay that are "not within the control" of the rail industry - i.e. those not originally caused by the rail industry - and causes that are "entirely outside the control" of the rail industry. The wording of NRCoT 33.4 implies that there is a stringent duty upon the TOCs and the rail industry at large to mitigate delays, and where this duty is breached, the cause of the delay will not be "entirely" outside the rail industry's control. and hence the exemption cannot be used.

All of which is to say - if ATW did everything they could possibly have done to mitigate delays, or for example the bridge strike occured very shortly before your train was due to pass, then I would be inclined to say they are entitled to rely on the NRCoT 33.4 exemption. If, however, (and as a delay of "just" an hour might suggest), they sort of gave up and cancelled many trains even though this may not strictly have been necessary (but was perhaps convenient for operational/staffing reasons), then I would suggest they cannot say the delay was "entirely" outside the rail industry's control - much though its origin may have been - and as such I would reject an attempt to rely on the exemption.

 

[bb21]

You are overthinking this.

Bridge strikes are deemed outside the control of the industry.

There is of course the option of a legal challenge if your really want to, but no one will know which way the decision is going to go. All will depend on how much supposed compensation is worthy of your time in chasing the matter up potentially with no reward at the end.

In that respect, the new Delay Repay system is much easier for everyone.

 

[ForTheLoveOf]

You are overthinking this.

Bridge strikes are deemed outside the control of the industry.

There is of course the option of a legal challenge if your really want to, but no one will know which way the decision is going to go.

Deemed? By whom? The industry? That's awfully convenient, isn't it, that they deem that it is always exempt if they choose it to be so!

If I may refer to a previous post by myself - the railway has to live in the modern era, and "blame" payments are to be expected. People pay a lot of money for a safe and punctual service and they therefore rightly expect to be compensated where this does not happen. If the industry is to be so penny-pinching over what is a comparitively very small amount (delay compensation exempted by NRCoT 33.4, and claims rejected therefore, probably amount to a few hundred thousand pounds a year at most, in a multi-billion industry), then it must fully justify this. It cannot simply have a blanket rule when it is an entirely situation dependent exemption, as per its wording.

There is no reason to shy away from legal disputes - it is inexpensive and easy to file a County Court claim for money nowadays. It can be done online in a few minutes.

 

[bb21]

It is a long held position since the beginning of privatisation. If there were plenty of holes in it, do you not think the industry would have been taken to tasks for it? Solicitors/barristers are no pushovers and they would have spotted the opportunities long ago. It would not be the first issue the industry would have had to back down on if it were incompatible with consumer legislation.

The trouble is that we will need test cases to show anything to the contrary, and so far no one has put the money where their mouth is, especially from the many on this forum who argue the opposite case.

I quite agree that some of the rulings may well be out of date, but there is nothing to point to any official ruling to the contrary.

There is a lot of talk on this forum, which is what really frustrates me. A clear ruling will do both sides a lot of good in many respects but so far all talk is about what possible actions can be taken but not actually what has actually taken place.

Until then, my position is that the customer will have to weigh up the value of the compensation against the cost (in all respects) of bringing the case to a court of law. The cost is not restricted to financial output, but the time and effort into preparing the case and the psychological impact on the distraction of a court case. Like with many other things, it is far from black and white.

 

[bb21]

Not meaning to have a go, in answer to your question as to "deemed by whom?", the answer is "deemed by the solicitors who worked on the relevant terms at privatisation", who are not just going to be any average Tom, Dick and Harry off the street, and I think I rightly should have more faith in qualified solicitors to have got them more or less right than opinions on the forum.

It is entirely possible that some of the terms may have fallen foul of more recent legislation, and that there may even have been mistakes not noticed at that time, but again without any legal examples to say so, why should anyone believe anything to the contrary?

I have no issue with people launching a legal challenge on that basis, and am very much behind such moves myself, if done sensibly, which is why I have made the option very clear in my posts.

 

[sheff1]

There is a lot of talk on this forum, which is what really frustrates me. A clear ruling will do both sides a lot of good in many respects but so far all talk is about what possible actions can be taken but not actually what has actually taken place.

On the specific point about legal challenge, surely this would have be instigated by someone who considered themselves to have been wronged. I hope that the posters who frustrate you with their talk about possible actions would instigate such action were they personally wronged but, until that situation arises (and in all likelihood it probably never will), all they can do is put their opinion forward for persons who have been potentially wronged to act on, or ignore, as they see fit.

 

[bb21]

On the specific point about legal challenge, surely this would have be instigated by someone who considered themselves to have been wronged. I hope that the posters who frustrate you with their talk about possible actions would instigate such action were they personally wronged but, until that situation arises (and in all likelihood it probably never will), all they can do is put their opinion forward for persons who have been potentially wronged to act on, or ignore, as they see fit.

They have, AFAIK, at least some of them, but I would rather not say too much.

 

[ForTheLoveOf]

Not meaning to have a go, in answer to your question as to "deemed by whom?", the answer is "deemed by the solicitors who worked on the relevant terms at privatisation", who are not just going to be any average Tom, Dick and Harry off the street, and I think I rightly should have more faith in qualified solicitors to have got them more or less right than opinions on the forum.

It is entirely possible that some of the terms may have fallen foul of more recent legislation, and that there may even have been mistakes not noticed at that time, but again without any legal examples to say so, why should anyone believe anything to the contrary?

I have no issue with people launching a legal challenge on that basis, and am very much behind such moves myself, if done sensibly, which is why I have made the option very clear in my posts.

It is certainly refreshing to have a good conversation about this kind of thing. Ultimately my question would be - has the NRCoT always included the phrase "entirely outside the control of the rail industry"? I suspect the word "entirely" in that phrase is one whose implications haven't fully been thought about yet.

As to the question of why no-one has notably done anything about this, I think it is simply a question of probability. How many people are delayed by at least an hour on their journey (such that they unquestionably qualify for compensation under the NRCoT limit, and that there can be no suggestion payment is voluntary)? Probably a few percent of passengers at most. What percentage of those might make a claim for compensation? Perhaps half. What percentage of those claims might actually go to TOCs who have a policy of rejecting claims under NRCoT 33.4? Perhaps 10 or 20%. What percentage of those passengers who then have their claim denied then actually contest the matter further and read the actual Passenger's Charter and NRCoT? Perhaps 2 or 3%. And after all that, who then has the "audacity" to think the exact meaning may entitle them to compensation?

In all, I think it answers itself when you look that way.

 

[Gareth Marston]

It is certainly refreshing to have a good conversation about this kind of thing. Ultimately my question would be - has the NRCoT always included the phrase "entirely outside the control of the rail industry"? I suspect the word "entirely" in that phrase is one whose implications haven't fully been thought about yet.

As to the question of why no-one has notably done anything about this, I think it is simply a question of probability. How many people are delayed by at least an hour on their journey (such that they unquestionably qualify for compensation under the NRCoT limit, and that there can be no suggestion payment is voluntary)? Probably a few percent of passengers at most. What percentage of those might make a claim for compensation? Perhaps half. What percentage of those claims might actually go to TOCs who have a policy of rejecting claims under NRCoT 33.4? Perhaps 10 or 20%. What percentage of those passengers who then have their claim denied then actually contest the matter further and read the actual Passenger's Charter and NRCoT? Perhaps 2 or 3%. And after all that, who then has the "audacity" to think the exact meaning may entitle them to compensation?

In all, I think it answers itself when you look that way.

Remember BR's investment budget for the baulk of the early 90's was diverted mainly into the pockets of the legal profession to set up the system we have now. Sounds like your asking for the legal gravy train to challenge the previous generation of the legal gravy train.....perpetuating the gravy train.


Let's face it the bloody haulage industry should be hauled over the coals about bridge strikes and made to pay. Pouncing about the terms of NRCoT misses the point entirely.

 

[sheff1]

Ultimately my question would be - has the NRCoT always included the phrase "entirely outside the control of the rail industry"? I suspect the word "entirely" in that phrase is one whose implications haven't fully been thought about yet.

That phrase has always been in the NRCoT. It was not in the NRCoC.

 

[sheff1]

Let's face it the bloody haulage industry should be hauled over the coals about bridge strikes and made to pay. Pouncing about the terms of NRCoT misses the point entirely.

Pouncing (sic) about the haulage industry misses the point entirely. All the most recent franchises have been required to adopt Delay Repay, so clearly the franchise awarding bodies present view is that compensation should be paid regardless of the reason for the disruption.

 

[ForTheLoveOf]

That phrase has always been in the NRCoT. It was not in the NRCoC.

Well precisely. It has then only been around for a (comparatively) very short time.

 

[Gareth Marston]

Pouncing (sic) about the haulage industry misses the point entirely. All the most recent franchises have been required to adopt Delay Repay, so clearly the franchise awarding bodies present view is that compensation should be paid regardless of the reason for the disruption.

So we should let poorly trained and inattentive road haulage industry drivers and their bosses get away with causing significant disruption to the railway and its customers? Get them where it hurts - in their pockets you'll be surprised how the incidences will reduce in frequency.

 

[Gareth Marston]

There is a lot of talk on this forum, which is what really frustrates me.

Ive yet to see any of the Forums "legal experts" actually produce the goods in a real life situation - of course spending 10 minutes anonymously bashing the keyboard about "legal challenges to the rail industry" is a lot easier than actually doing it in the real world. They might have to get out from behind the keyboards and deal with the real world....

 

[ForTheLoveOf]

Ive yet to see any of the Forums "legal experts" actually produce the goods in a real life situation - of course spending 10 minutes anonymously bashing the keyboard about "legal challenges to the rail industry" is a lot easier than actually doing it in the real world. They might have to get out from behind the keyboards and deal with the real world....

Ah, the old "the railway is always right because it always has been" attitude...

 

[najaB]

Ah, the old "the railway is always right because it always has been" attitude...

Forgive the ad hominem, but you have a history of recommending members to test/challenge/take on the TOCs in court - what is your personal history of doing so? Why should I give your pronouncements any more weight than any other random guy on the Internet?

Full disclosure: I am a random guy on the Internet, hence why generally stay silent on matters that aren't clear and would never suggest taking a TOC on unless there is a near-certain chance of being successful.

 

[ForTheLoveOf]

Forgive the ad hominem, but you have a history of recommending members to test/challenge/take on the TOCs in court - what is your personal history of doing so? Why should I give your pronouncements any more weight than any other random guy on the Internet?

Full disclosure: I am a random guy on the Internet, hence why generally stay silent on matters that aren't clear and would never suggest taking a TOC on unless there is a near-certain chance of being successful.

I have taken many TOCs to task. Letters Before Action have proven particularly effective at extracting payment from unwilling debtors, and in some cases the need has arisen to issue a County Court claim. If nothing else has, this so far always has elicited payment. I have had no cases with TOCs which remain outstanding as far as I'm aware.

Of course that's all anecdote, but my view is that the attitude that TOCs are always right - as sadly seems to be the case with some people - needs to be challenged and it absolutely cannot always just be accepted.

You can take my advice or not - at the end of the day I'm not going to be benefitting if you get more compensation. I'll give you my take on the situation and back it up with references/sources where available. If you don't want to believe me, that's your issue. But I don't see why I shouldn't comment with my views, if some may be interested/benefit from it.

 

[najaB]

I have taken many TOCs to task. Letters Before Action have proven particularly effective at extracting payment from unwilling debtors, and in some cases the need has arisen to issue a County Court claim. If nothing else has, this so far always has elicited payment.

So civil matters only, very few of which actually even actually involved the Court. Thanks.

 

[Gareth Marston]

Ah, the old "the railway is always right because it always has been" attitude...

Not at all but I recognise what is "off" with your postings about legal challenges and as you explain yourself #19 the taking the TOC's to court and establishing precedent/ test cases you so often espouse you have not actually done.

 

[Darandio]

Many on here over the years have invited people to test/challenge TOC's in court. The same people have often also gave out advice not to pay monies due even when it could land them in serious trouble.

It's very easy to offer this advice when you aren't doing it yourself.

 

[ForTheLoveOf]

So civil matters only, very few of which actually even actually involved the Court. Thanks.

Not at all but I recognise what is "off" with your postings about legal challenges and as you explain yourself #19 the taking the TOC's to court and establishing precedent/ test cases you so often espouse you have not actually done.

Many on here over the years have invited people to test/challenge TOC's in court. The same people have often also gave out advice not to pay monies due even when it could land them in serious trouble.

It's very easy to offer this advice when you aren't doing it yourself.

Ah, so the suggestion shouldn't be made in that case. No, sorry, that's ridiculous. Have any of you actually got something constructive to add to rebut what I've said (e.g. a counter-argument based on portions of the NRCoT etc.) or are you just supporting censorship/not speaking out? If you have something further to constructively add other than "you haven't done it yourself therefore you can't give advice to that effect", please go ahead. I'm not holding my breath.

 

[najaB]

Ah, so the suggestion shouldn't be made in that case.

This is a discussion forum so all opinions/suggestions are welcome. I now know what weight I should give to yours.

 

[Gareth Marston]

Rest assured ForTheLoveof will not be starting legal preceding so to get Bridge Strikes deemed as being in the control of the rail industry on Monday morning or any other time.

If the OP is still reading this thread whether you agree with it or not delays caused by problems in other industries do not currently entitle passengers to compensation.

 

[185]

You are overthinking this.
Bridge strikes are deemed outside the control of the industry.

Hmmm. A scenario.

Train company X suffers a fatality on a line - obviously not their fault. Perhaps the definition of reasonably reforming the service with replacement traincrew should occur in say three to four hours - ie within a sensible time of BTP handing the line back to them. Lets say company X has cut back on spares, running a depot reliant on overtime to cover shifts and is quite short. At what point, five hours after the original incident can that train company still blame a fatality or incident?

In the case of a bridge bash, yes it is unavoidable - but what if the traincrew only sign one single route due to training shortfalls with no diversions, or lets say it's three hours after the incident and a train company are using the bridge bash hours after it happened to cancel services, surely that isn't right? I only mention this, as not so long ago, I witnessed a similar cessation of service some five hours after a major incident, three and a half hours after BTP gave the line back. In that case, train company X did pay to a customer.

 

[najaB]

...but what if the traincrew only sign one single route due to training shortfalls with no diversions...

You could make the argument that all crews should sign all possible routes, but there has to be a limit as to what is considered reasonable.

 

[ForTheLoveOf]

Hmmm. A scenario.

Train company X suffers a fatality on a line - obviously not their fault. Perhaps the definition of reasonably reforming the service with replacement traincrew should occur in say three to four hours - ie within a sensible time of BTP handing the line back to them. Lets say company X has cut back on spares, running a depot reliant on overtime to cover shifts and is quite short. At what point, five hours after the original incident can that train company still blame a fatality or incident?

In the case of a bridge bash, yes it is unavoidable - but what if the traincrew only sign one single route due to training shortfalls with no diversions, or lets say it's three hours after the incident and a train company are using the bridge bash hours after it happened to cancel services, surely that isn't right? I only mention this, as not so long ago, I witnessed a similar cessation of service some five hours after a major incident, three and a half hours after BTP gave the line back. In that case, train company X did pay to a customer.

You've said exactly what I meant all along - I was never arguing that bridge strikes are themselves non-exempt. But the way that such issues are dealt with may mean the difference between exempt and non-exempt from compensation.

 

[JN114]

You've said exactly what I meant all along - I was never arguing that bridge strikes are themselves non-exempt. But the way that such issues are dealt with may mean the difference between exempt and non-exempt from compensation.

But how do you propose to police TOCs actions in the wake of disruption? Railway Controllers are highly trained; but they are making snap decisions under enormous pressure. It is very easy to apply hindsight to service recovery and say “you should have done X, Y and Z” - but a very, very different job to actually be the person making that snap decision there and then.

 

[Haywain]

Hmmm. A scenario.

You talk about the availability and whereabouts of staff, but what's also needed to run a train service is trains and it can take several hours to get everything back in the right place at the right time, even with cancellations being made. The result is that one incident can have a knock on effect right through the day, and sometimes even in to the following day's service.

 

[ForTheLoveOf]

But how do you propose to police TOCs actions in the wake of disruption? Railway Controllers are highly trained; but they are making snap decisions under enormous pressure. It is very easy to apply hindsight to service recovery and say “you should have done X, Y and Z” - but a very, very different job to actually be the person making that snap decision there and then.

If the TOC wishes to invoke the exemption then the burden of proof is, in my eyes, upon them, to prove that the cause of the delay was "entirely outside the control of the rail industry". Similarly to the EU261 flight compensation exemption of "exceptional circumstances", I think adopting at least the first of that two-stage test would be appropriate -

1) Did the rail industry make all reasonable efforts (or, arguably, because of the presence of "entirely", every effort) to prevent and/or mitigate the delay?, and
2) Was the delay outside the usual course of the rail industry's business, i.e. something they cannot be expected to deal with normally?

In my view it is clear that NRCoT 33.4 can only be invoked where the answer to both questions is yes. However a mere assertion that the root cause of a delay was unusual, or fulfilled the second of the above questions, is not sufficient - much in the same way that airlines cannot simply assert that the cause of an otherwise qualifying EU261 delay was "exceptional", but must evidence that the two-stage test is fulfilled in the circumstances.

It is for the reasons as explained above that I believe the railway cannot simply lump all bridge-strike related claims into the category of being exempt under NRCoT 33.4 - it is an entirely situation-dependent exemption. It may be fulfilled for some bridge strikes but not others, and @185 clearly illustrated how sometimes such an occurrence might be exempt, but not in other times - just depending on the rail industry's handling of the matter.