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Article in Rail Professional about Merseyrail Fatality

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HH

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Rail Professional, Feb 2013, written by Daniel McShee and Kamal Chauhan (Kennedys LLP)

The prosecution of former Merseyrail guard, Christopher McGee, has significance for all railway employees who are trained to show a duty of care to others, as well as rail employers. Kennedy’s lawyers Daniel McShee and Kamal Chauhan consider the facts

On 14 November 2012, Christopher McGee, a train guard who was at the time employed by Merseyrail, was found guilty of manslaughter by gross negligence following a two week trial at Liverpool Crown Court.

McGee was sentenced to five years’ imprisonment for the part that he played in the tragic death of Miss Georgia Varley, who was 16 at time of the incident.
Whilst each case turns on its own facts, the prosecution has some significance for railway employees in similar positions with duties of care to others, where an error lasting only a few seconds can nonetheless be characterised as grossly negligent.

The facts as reported

Miss Varley was on a night out with friends in Liverpool on 22 October 2011. She was intoxicated through drink and drugs. She had mistakenly left the train at James Street station and leaned against the carriage as she realised her friends were still on board. As she did so Mr McGee signalled to the driver by means of the train’s internal bell system that the train could move away from the platform. Miss Varley was tragically killed as she fell beneath the moving train.

The law

To find a defendant guilty of gross negligence manslaughter the jury must be satisfied that:
• A duty of care existed between the defendant and the victim;
• The duty has been breached;
• The breach caused the death of the victim;
• The breach should be characterised as gross negligence and therefore as a crime.

Whether negligence is gross depends on the seriousness of the breach in all the circumstances in which the defendant was placed when it occurred. The jury has to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the victim, was such that it should be judged criminal.

While this involves an element of circularity the jury is effectively left to decide how far conduct must depart from accepted standards to be characterised as criminal.
Gross negligence manslaughter is judged against the criminal standard of proof which requires the jury to be sure and convinced ‘beyond reasonable doubt’ that the offence has been committed.

Aggravating and mitigating factors

Mr Justice Holroyde in his sentencing comments accepted that:
• Mr McGee’s gross negligence occurred over a few seconds and was not a prolonged course of risk taking;
• He had no relevant convictions;
• He had served the railways conscientiously for 20 years;
• In consequence of what happened he was suffering from post traumatic stress disorder; and
• A sentence of imprisonment would be difficult for him to bear.

However, he went on to state that:

• Mr McGee had been repeatedly trained and instructed in matters of safety including the risk of accidents at the platform/train interface and knew that anyone falling between a moving train and the platform edge was likely to be killed;
• He had sole control of the train’s movement and his actions determined whether Miss Varley was safe from risk;
• He knew that Miss Varley was intoxicated by her behaviour at a previous station, and seeing her unsteady on her feet before leaning on the train;
• He had a clear view of Miss Varley and was not distracted. She was not moving away from the train and was leaning on it when he pressed the bell signal to depart;
• He took a terrible risk in assuming that Miss Varley would move away when the train began to move and he ignored his repeated training and instruction to ensure it was safe to start the train before he gave the signal;
• After giving the signal he could have countermanded it before the train had really begun to move and have warned Miss Varley to stand away from the train but he did not do so.

The judge sentenced McGee to five years’ imprisonment. McGee has been given leave to appeal to the Court of Appeal.

Implications

Train guards work in what are sometimes extremely challenging circumstances. The constant emphasis on safety within the railway industry means that like many other categories of railway employees they are well trained and aware of their responsibilities for the safety of their colleagues and passengers. The consequence of this is that it is difficult for such an employee who makes a deliberate decision to act in a way which unintentionally results in the death of a passenger to excuse himself from the legal consequences. At the same time, and conversely, the better the training the less likely it is that the employer will be criminally responsible for the gross negligence of an employee.
 
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Dieseldriver

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It's a pity that instead of a sensible look into educating people on the dangers of railways and research into incidents such as these, the industry quite clearly took the easy option of finding their scapegoat...
 

DarloRich

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It's a pity that instead of a sensible look into educating people on the dangers of railways and research into incidents such as these, the industry quite clearly took the easy option of finding their scapegoat...

and here we go again! My views on this are quite clear and do not need rehashing, suffice to say this kind of response drives me round the bend.
 

ANorthernGuard

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It's a pity that instead of a sensible look into educating people on the dangers of railways and research into incidents such as these, the industry quite clearly took the easy option of finding their scapegoat...

His negligence caused the death of a girl. He was found guilty in a court of law. If the girl had died while he was doing his job correctly he would not have faced any charges. We as rail professionals have a legal duty of care If some people can't accept this then maybe they are in the wrong industry!

 

bb21

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McGee is guilty as charged. I don't think this can be disputed.

We debated at length previously how much responsibility the girl should take for her own safety however whatever conclusion we drew from that debate does not discharge McGee of his responsibilities.

Let's not reopen the debate.
 

NI 271

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It's a pity that instead of a sensible look into educating people on the dangers of railways and research into incidents such as these, the industry quite clearly took the easy option of finding their scapegoat...

What format should this 'education' take, out of interest? Who should pay for it?

The general public are, by and large, cretins. Do you think the public would pay more heed to any campaign foisted on them (almost certainly as adverts in papers or in between unpopular tv shows when most people nowadays are flicking through channels or making a brew) than they have in the past? I've seen loads over the years, but could tell you the content of very few - and I have an interest. Those who don't? Pffft.

Compound this with inebriation, as you'd find almost everywhere on a Saturday night - I know when I was driving buses for a living I expected drunken passengers at weekends, why would the railways be any different? - and if you paid for such a campaign you'd be doing little more to your money than those inebriated people I've just mentioned did with theirs.

I'd say that if anyone could do with 'educating', it's someone who assumes the general public should undergo training so that he can ignore his with impunity.
 

GodAtum

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I think TOCs should do what airplane companies do and ban people people who are too drunk to fly.
 

barrykas

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I think TOCs should do what airplane companies do and ban people people who are too drunk to fly.

It's already an offence under Railway Byelaw 4(1):
Railway Byelaws said:
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.

Rarely enforced, however...
 

FGW_DID

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I think that last episode of "The Railway" with Leeds Station and the idiots on the 'Ale Trail' just proves that last statement by Barrykas!
 

HH

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They've started doing it in Scotland I hear...
 

swj99

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It's already an offence under Railway Byelaw 4(1):

Rarely enforced, however...
I watched an episode of The Railway where lots of drunk people / ale trail / brew crew etc were actively encouraged to travel, accompanied by BTP.
Makes a mockery of the rules really, and is an example of how they are selectively applied.
 

BestWestern

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I watched an episode of The Railway where lots of drunk people / ale trail / brew crew etc were actively encouraged to travel, accompanied by BTP.
Makes a mockery of the rules really, and is an example of how they are selectively applied.

Sadly the reality is that it's simply far easier to load them onto the next available train and get rid of them, regardless of whether or not they are fit to travel.
 

Dieseldriver

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OK then, how far do you go with this?
I come into a station, lets say I'm doing 20mph as I hit the platform with the brake in, still decelerating. There's a guy stood quite far over the yellow line. I sound my horn as a warning but he still stands there, I ponder for a few seconds on what the next course of action is I should take and then he flops off the platform onto the track. As I run over him my speed is fairly slow but he is killed. Later, it transpires he has copious amounts of alcohol in his system and it is then calculated that if I had put the brake handle into emergency at the same time as blowing the horn, I would have stopped before running him over. Is it my fault that person died? I am not drawing a parallel between my hypothetical situation and the incident in Liverpool before anyone tries to point out the 'differences'. I am demonstrating the safety critical and responsible decisions railstaff can be faced with.
In my hypothetical scenario what would you have done differently? Would you cosh the brake every time you see someone over the yellow line? Would you have even blown the horn, after all that could have been the 3rd time you'd come across that situation on that one trip, you may also be used to seeing people 'pretend' to jump in front of your train on a semi regular basis. Hindsight is an absolutely fantastic thing which would undoubtedly save many lives and heartache but as mere mortals we are not privy to that.
With due respect, there are a lot of members on here who have not got experience as traincrew who will not know the 'real' pressures of the job and situations we are faced with everyday. As I said, my intention is not to offend, merely stating facts.
As to my opinions towards what happened in Liverpool, I read the RAIB report into the incidents, I made note of the various forms of evidence with a completely open mind. Just because it involved a 'fellow' railwayman, it did not alter my view. However, I genuinely struggled to see how he deserves to be prosecuted and imprisoned for that event. I believe that it is unfair and unjust that he has been treated in this way, not just for him as an individual but also to all railway staff and the travelling public as an important safety issue has effectively been brushed under the carpet. The message this sends out to people is that railway staff are solely to blame if anything happens to them, after all, it is our duty to ensure the safe running of the railway. This is effectively passing the buck to make it 'someone else's fault' which is indicative of this modern society we live in where no-one is prepared to take responsibility for their own actions.
And again, before anyone goes off on one at me, my personal feelings towards the girl who was killed and her family and friends are of deep sorrow and sympathy. I did ill thought out things at her age and can empathise with what happened, however, and I really don't want to say this, I believe her actions were a primary factor in the incident.
If I believed Mr McGee was responsible for the incident, my opinions and feelings on the matter would be entirely different as I am capable of making my own mind up on these things without emotional and opinionated influences but in my view, this is not the case. Anyone who genuinely cares about the safety of our railways will agree, picking out a scapegoat and brushing things under the carpet does not make our railways safer, it just adds fuel to the fire of blame culture.


There but for the grace of God go I.
 

ukrob

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OK then, how far do you go with this?
I come into a station, lets say I'm doing 20mph as I hit the platform with the brake in, still decelerating. There's a guy stood quite far over the yellow line. I sound my horn as a warning but he still stands there, I ponder for a few seconds on what the next course of action is I should take and then he flops off the platform onto the

Quite simply, if your defence is that you pondered for a few seconds whilst travelling at 20mph then you should not be in the job. That is what a jury would think and not necessarily my opinion of course. Therefore it is not a very good example.
 

Dieseldriver

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Exactly, what a jury would think. And their experience of coming up against that situation countless times as a train driver is?...
 

DarloRich

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Exactly, what a jury would think. And their experience of coming up against that situation countless times as a train driver is?...

not important at all.

The duty of the jury is to asses and consider the evidence presented to them in a fair, impartial and honest fashion and return their verdict t the court for sentencing. Their profession and life experiences are immaterial. Although it is referred to as a jury of your peers that simply means 12 other decent members of society, not 12 dust men/surgeons/train drivers/ astronauts etc.

In the case you presented your defense team would call an expert witness to explain your actions to the jury.

Taking your position you could say what point is there in a jury trial at all as none of the members have ever burgled a house or stolen a car. Or perhaps we should have no judges because they wont know anything about the criminals way of life either.

( i think some research in to the nature, cause and effect of the jury system would help!)
 

Dieseldriver

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As a matter of interest, If I put the brake into emergency everytime I came across someone standing between the yellow line and the platform edge, I would literally stop short at every station and would grind to a halt every time I passed through non stop. Because that is impractical, this means dozens of times a day I could potentially be in the dock explaining my actions. Would people consider it fair if a train driver was imprisoned for bowling someone over in those circumstances?
 

DarloRich

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As a matter of interest, If I put the brake into emergency everytime I came across someone standing between the yellow line and the platform edge, I would literally stop short at every station and would grind to a halt every time I passed through non stop. Because that is impractical, this means dozens of times a day I could potentially be in the dock explaining my actions. Would people consider it fair if a train driver was imprisoned for bowling someone over in those circumstances?

but so could i every time i get behind the wheel of a car.

You haven't really set out a circumstance clearly. Do you mean if you see someone over the yellow line, dont stop and they fall under the train?

I would expect the person to be tried if there was evidence they had failed in their duty of care or were negligent in some way. The railways and railway staff do not opperate in isolation from the laws of the land
 

Dieseldriver

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When you drive your car, as long as you don't break the law you will not be prosecuted, it is that black and white. As for your comment stating that railstaff do not operate out side of the law, did you read my long post? I have never suggested that we do and never would. If I felt Chris McGee was to blame for the incident in Liverpool, I would say so, as it stands, I do not feel that is the case.
As for the yellow line scenario, it's as I explained a few posts back. You can read that passage with hindsight and then think to how it would have been perceived by the unfortunate train driver at the time.
 

DarloRich

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When you drive your car, as long as you don't break the law you will not be prosecuted, it is that black and white.

Is it the same not for driving trains?

As for your comment stating that railstaff do not operate out side of the law, did you read my long post? I have never suggested that we do and never would. If I felt Chris McGee was to blame for the incident in Liverpool, I would say so, as it stands, I do not feel that is the case.

Who is to blame and why?

As for the yellow line scenario, it's as I explained a few posts back. You can read that passage with hindsight and then think to how it would have been perceived by the unfortunate train driver at the time.

I am a little bit confused. If you did everything right you would not be prosecuted. If you were negligent in some way, and by negligent i mean as per the legal definition, you should be prosecuted.

This case should stand as a salutatory reminder of the duty of care owed by railway employees to members of the public whilst they are about their business
 

Clip

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When you drive your car, as long as you don't break the law you will not be prosecuted, it is that black and white. As for your comment stating that railstaff do not operate out side of the law, did you read my long post? I have never suggested that we do and never would. If I felt Chris McGee was to blame for the incident in Liverpool, I would say so, as it stands, I do not feel that is the case.
As for the yellow line scenario, it's as I explained a few posts back. You can read that passage with hindsight and then think to how it would have been perceived by the unfortunate train driver at the time.

In your situation should that happen then you would not be charged with the same charges as this guard was so its not a balanced comparison.

And that's the point you are missing by a country mile. The charges and the law.
 

swj99

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I agree with everything you've said in this post.

OK then, how far do you go with this?
I come into a station, lets say I'm doing 20mph as I hit the platform.........................
...........Anyone who genuinely cares about the safety of our railways will agree, picking out a scapegoat and brushing things under the carpet does not make our railways safer, it just adds fuel to the fire of blame culture.
There but for the grace of God go I.

I think you're right about the blame culture. I can't help thinking that one message which should have been made much louder and much clearer than it has been, is the one about cause and effect, and personal responsibility. Now I know it's easy to be wise after the event, and hindsight is an exact science, but in this case, the message, harsh though it may sound, would be if you go onto a railway platform when you're drunk, you might fall under a train and die. It should be obvious, well it is, to a lot of people, but now there's another option, called BSE, or blame someone else. And to some, there is even an expectation that others will save them from themselves. As some people said quite rightly just after the court case, the girl who died at least partly contributed to her own death by her actions. But so much blame has been heaped onto the guard, which adds to the blame culture, and it makes it too easy for people to think it doesn't matter what they do, the safety systems and rules will save them, and it's someone elses responsibility.
As another young life is needlessly wasted, we see the harsh reality that it doesn't always work out like that, as Georgia Varley tragically found out. As has become apparent from the thread about the signalman who was found guilty over the level crossing death, some people, myself included, had believed that a safety system was in place which should have prevented that accident from happening. It was an assumption which may have led to a false sense of security.

When you drive your car, as long as you don't break the law you will not be prosecuted, it is that black and white.

But the law and its interpretation is subjective.

Certain things about the law are unfortunately not black and white. I wish they were. In an ideal world everything would be either right or wrong, legal or illegal, in simple black and white, with no grey areas or other colours to confuse issues. But the whole point of having magistrates and juries is to decide on these other colours and grey areas, and to make some sort of sense of them, even when sometimes there is very little, if any sense to be made.

Sometimes despite their best efforts, magistrates and juries sometimes get it wrong. If they didn't, there would be no need for the court of appeal, or the criminal cases review commission. I think one of the difficulties is that as people, we are often taught by those who at the time appear to be the source of undisputed authority, the idealistic notion that things are black and white. As life goes on, it can be difficult on occasions to reconcile that with the reality that this is not always the case.
 

RJ

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It's a pity that instead of a sensible look into educating people on the dangers of railways and research into incidents such as these, the industry quite clearly took the easy option of finding their scapegoat...

If you're in a safety critical position, you have a duty to be mature enough and alert enough to compensate for the negligent actions of others, if it's within your control to do so. Part of life working on the railways is dealing with passengers who may be negligent through intoxication, distraction or not possessing the cognitive skills required for an adequate sense of self awareness.

The industry should indeed continue to educate people of the dangers on and around the railways, but I don't agree that the industry chose to make the guard a scapegoat for expedient reasons.
 
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DarloRich

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I think you're right about the blame culture. I can't help thinking that one message which should have been made much louder and much clearer than it has been, is the one about cause and effect, and personal responsibility. Now I know it's easy to be wise after the event, and hindsight is an exact science, but in this case, the message, harsh though it may sound, would be if you go onto a railway platform when you're drunk, you might fall under a train and die. It should be obvious, well it is, to a lot of people, but now there's another option, called BSE, or blame someone else. And to some, there is even an expectation that others will save them from themselves. As some people said quite rightly just after the court case, the girl who died at least partly contributed to her own death by her actions. But so much blame has been heaped onto the guard, which adds to the blame culture, and it makes it too easy for people to think it doesn't matter what they do, the safety systems and rules will save them, and it's someone elses responsibility.
As another young life is needlessly wasted, we see the harsh reality that it doesn't always work out like that, as Georgia Varley tragically found out. As has become apparent from the thread about the signalman who was found guilty over the level crossing death, some people, myself included, had believed that a safety system was in place which should have prevented that accident from happening. It was an assumption which may have led to a false sense of security.

I am sorry but that is just noise. It may be what you think should happen but it isn’t what the law says. I am sorry but it isn’t. The duty of care owed by the railway to the public is quite clear and has been for almost as long as the railways have existed.

Clearly there is contributory negligence by the deceased, but that contributory negligence is not of an order to absolve the poor guard of blame. The overriding duty of care rests with and is the responsibility of the railway and of railway staff. You may not like that, you may wish it was slanted differently, it may not seem fair but the law is quite clear.

I think what may come out of the recent cases is a broader understanding and reinforcement of that duty in the minds of railway staff. I think the duty of care was not widely appreciated by us all. If anyone is in any doubt as to their responsibilities or the implications of this judgement I would suggest speaking with your union contacts as they should be able to provide some sensible guidance and advice.
 

swj99

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I am sorry but that is just noise. It may be what you think should happen but it isn’t what the law says. I am sorry but it isn’t. The duty of care owed by the railway to the public is quite clear and has been for almost as long as the railways have existed.

Clearly there is contributory negligence by the deceased, but that contributory negligence is not of an order to absolve the poor guard of blame.........................
No, it isn't 'just noise, it's an opinion which I believe to be valid. You don't have to keep apologising for your opinions. And I make no apologies for mine.
The point I am making is that notwithstanding any rules and safety systems which quite rightly exist, a person is also responsible to some extent, for their own safety, and simply relying on safety rules and systems is not always enough. I'm sure there are plenty of people who would still be alive today if they had realized this and acted accordingly.
 
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