National Rail Conditions of Travel 'unlawful'

Starmill · 25 Feb 2017

The consumer group Which? says it is taking action against what it calls a smokescreen set up by train companies to prevent passengers from claiming compensation from them under the Consumer Rights Act.

Passenger rights and the Consumer Rights Act

Under the Consumer Rights Act, which came into force for the rail industry on 1 October 2016, passengers are entitled to claim for a wide range of problems when a service hasnt been delivered with reasonable care and skill.

Passengers also have the right to claim for consequential losses that result from a delayed or cancelled train, such as reasonable costs for missed flights, taxi fares or child-minding fees.

The current terms of the industry-wide National Rail Conditions of Travel undermine passenger rights by attempting to limit train companies liability, and they exploit this to ensure that consumers dont claim for consequential losses.

This attempt to limit liability is not in line with consumer law. Passengers have the right to claim for consequential losses, and train companies are required to make that clear and not suggest otherwise.

http://www.which.co.uk/news/2017/02/train-company-smokescreen-prevents-passenger-compensation-claims

Clearly Which? will have their own agenda with this, and I have not looked closely at the provisions of the legislation (although more accessible summaries are available). In truth it's not liklely I'd be able to tell for myself from reading it if a claim I might wish to make against a train operator for a consequential loss was covered by its provisions or not. And I think that applies to a vast majority of rail users.

If it holds water - and it looks like it does - the allegation that the industry has deliberately written conditions such that they are in breach of the law, at a time when they were well aware of the changes to the law being made, is a serious one. One must ask the question if this kind of alleged systematic abuse would be allowed elsewhere?

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Bletchleyite · 25 Feb 2017

Passengers also have the right to claim for consequential losses that result from a delayed or cancelled train, such as reasonable costs for missed flights, taxi fares or child-minding fees.

Do they really? I would suggest that much of that is a matter for travel insurance. The railway is liable for getting you to your ticketed destination, that's all, and that's all it should be. I don't want my ticket prices to be paying for a businessman who lost a million pound deal because the train was late.

miami · 25 Feb 2017

Neil Williams said:
Do they really? I would suggest that much of that is a matter for travel insurance. The railway is liable for getting you to your ticketed destination, that's all, and that's all it should be. I don't want my ticket prices to be paying for a businessman who lost a million pound deal because the train was late.

If the railway doesn't deliver with 'reasonable care and skill' (for instance preventing you from boarding when you have a valid ticket), the law appears to say that it is.

Perhaps this simply means TOCs need to deliver with reasonable care and skill?

There is also the question about whether these conditions were deliberately created to flout the law, or if that was an accidental byproduct.

yorkie · 25 Feb 2017

Neil Williams said:
Do they really? I would suggest that much of that is a matter for travel insurance. The railway is liable for getting you to your ticketed destination, that's all, and that's all it should be. I don't want my ticket prices to be paying for a businessman who lost a million pound deal because the train was late.

A failure to strike a £1m deal would probably not be a 'reasonable cost'.

paulweaver said:
There is also the question about whether these conditions were deliberately created to flout the law, or if that was an accidental byproduct.

Indeed. I strongly suspect some of the information boxes, while not actually forming part of the conditions, were deliberately created to flout the law.

If anyone from Which? is reading this, I urge them to get in touch with us, so we can work together with them to bring those responsible to account.

richw · 25 Feb 2017

Neil Williams said:
Do they really? I would suggest that much of that is a matter for travel insurance. The railway is liable for getting you to your ticketed destination, that's all, and that's all it should be. I don't want my ticket prices to be paying for a businessman who lost a million pound deal because the train was late.

The updated consumer rights act does indeed have provision for consequential losses where the supplier was the direct cause of that loss, therefore if a flight was missed due to a very late train the TOC would be liable.

The consumer has to take reasonable care to allow time of something importance in my eye. If the consumer books a train to arrive 5 minutes before sighting a multi million pound deal that's their fault for poor planning.
Booking to arrive at Gatwick 4 hours before a flight on the other hand and train causing a missed flight would be covered,

Starmill · 25 Feb 2017

paulweaver said:
There is also the question about whether these conditions were deliberately created to flout the law, or if that was an accidental byproduct.

I completely agree. If there were any evidence of deliberate flouting I would hope this would be met with serious consequences - although who there is to best enforce these I'm not sure. Any accidental byproduct that was found to be in contravention of the law, once identified, would surely be rectified within a matter of days?

09065 · 25 Feb 2017

It would certainly throw a cat among the pigeons, but the only loses will be the customers.

Train Operators would need to increase their 'compensation investigation' teams to prove liability.

Network Rail would have to increase their 'compensation investigation' teams to prove liability against the TOC and the customer.

Network Rail would pass the cost to the TOC, the TOC would add that cost to their increased cost, and pass it onto the customer.

Lawyers on CLAIM NOW companies win, passengers lose.

robbeech · 25 Feb 2017

If i cannot get to a gig on time due to a train that runs 180L for example, and the gig cannot go ahead then as far as the client is concerned I am responsible for the gig not going ahead and I am responsible for refunding tickets for maybe 100, maybe 1000 maybe 10,000 people at maybe £10 maybe £20 or maybe £100 per ticket out of my own pocket. It matters not whether i was late because i overslept, late because my car broke down, late because the train was late or broke down, late because my flight was cancelled or late because i was rushed to hospital, it is 100% my responsibility and if that costs £150,000 then that is how it is.
Of course, if i then tried to pass that cost onto the railway it would be outright refused.

LAX54 · 25 Feb 2017

robbeech said:
If i cannot get to a gig on time due to a train that runs 180L for example, and the gig cannot go ahead then as far as the client is concerned I am responsible for the gig not going ahead and I am responsible for refunding tickets for maybe 100, maybe 1000 maybe 10,000 people at maybe £10 maybe £20 or maybe £100 per ticket out of my own pocket. It matters not whether i was late because i overslept, late because my car broke down, late because the train was late or broke down, late because my flight was cancelled or late because i was rushed to hospital, it is 100% my responsibility and if that costs £150,000 then that is how it is.
Of course, if i then tried to pass that cost onto the railway it would be outright refused.

Or the Airline Company, the Highways Agency, The Bus Company........

but one would have though event insurance would be involved ?

robbeech · 25 Feb 2017

oldsiggie said:
Or the Airline Company, the Highways Agency, The Bus Company........

but one would have though event insurance would be involved ?

Any of the above, yes. And yes, event insurance is absolutely involved but as with all types of insurance, it can be a long process and they'll inevitably do what they can to avoid paying out, and unlike with a road traffic collision the money may well have to be paid upfront and reclaimed perhaps only partially afterwards.

Cherry_Picker · 25 Feb 2017

Where could this logically end? Google Maps told me it would take me 17 minutes to drive to work, it took 29 minutes and I got sacked for being late. A year's salary please

Starmill · 25 Feb 2017

Is there a reasonableness test for the costs that companies might compensate based on And we do know that the Consumer Rights Act covers rail travel, I think? Presumably it also has implications for travel by bus or tram? Driving your own car is not purchasing a service, so it doesn't apply.

Mag_seven · 25 Feb 2017

Cherry_Picker said:
Where could this logically end? Google Maps told me it would take me 17 minutes to drive to work, it took 29 minutes and I got sacked for being late. A year's salary please

But there's no charge for using Google Maps is there?

TheEdge · 25 Feb 2017

Which? said:
‘reasonable care and skill’

What on earth does that mean legally? To me reasonable care and skill is you get to your destination alive. That seems so vague any claim brought under this could be fought indefinitely.

Where does the line sit? Is a TOC cancelling a train to avoid running a crush loaded short form more or less "care and skill" than running a 153 in place of a 3 car 170? Does it change the "care and skill" if that 170 is sat in the depot awaiting the late delivery of a bit of pipe or because it's being cleaned after a fatality?

And where does consequential losses stop? A taxi? Fair enough. A hotel? Again, reasonable. Extra hours of childcare? Yea. Lost earnings? Dodgy. Missed an interview/meeting, maybe you lost a big contact? Dubious at best, waste of time at worst.

Which? Clickbaiters said:
Unavailability of a particular seat, where you’ve paid for a specified seat or a seat in a certain coach or carriage (such as first class)

Well there is thousands of hours of wasted time right there. What percentage of reserved seats or accommodation is paid for? Is it only the sleeper supplements?

Which? Poopstirrers said:
Failure to provide food on a train journey if it was part of the described service

Wave goodbye to catering services then.

No one will benefit from this. Just TOCs and NR will spend more money trying to fight each other for delay attribution and that cost will filter down to the passengers.

Much like simplified rail fares, careful what you wish for.

LAX54 · 25 Feb 2017

sadly we are now a nation of compensation seekers, even when its out of the hands of the Railway Co, The Airline, whoever, many now expect as a right to have compensation paid, but at the same time create a stink when fares go up to cover for the payments !

yorkie · 26 Feb 2017

Cherry_Picker said:
Where could this logically end? Google Maps told me it would take me 17 minutes to drive to work, it took 29 minutes and I got sacked for being late. A year's salary please

Again, that is not an appropriate analogy, for so many reasons (which I won't go into, as it'll rapidly get off-topic).

TheEdge · 26 Feb 2017

yorkie said:
Again, that is not an appropriate analogy, for so many reasons (which I won't go into, as it'll rapidly get off-topic).

So what is a reasonable analogy? This seems to leave open the opportunity for pretty much anything to be charged against the railway.

Do bus companies now need to pay out if buses are delayed due to a crash? Basically the same analogy but with a bus rather than a car.

AlterEgo · 26 Feb 2017

09065 said:
It would certainly throw a cat among the pigeons, but the only loses will be the customers.

Train Operators would need to increase their 'compensation investigation' teams to prove liability.

Network Rail would have to increase their 'compensation investigation' teams to prove liability against the TOC and the customer.

Network Rail would pass the cost to the TOC, the TOC would add that cost to their increased cost, and pass it onto the customer.

Lawyers on CLAIM NOW companies win, passengers lose.

If the law was relaxed customers would certainly lose out.

If the law was interpreted more strictly, you assert customers would also lose out.

The current situation can't be perfect!

AlterEgo · 26 Feb 2017

TheEdge said:
So what is a reasonable analogy? This seems to leave open the opportunity for pretty much anything to be charged against the railway.

Do bus companies now need to pay out if buses are delayed due to a crash? Basically the same analogy but with a bus rather than a car.

Nobody is suggesting that. Which are a pressure group and are attempting to change or clarify the law by subjecting it to a stress test of sorts.

RDG/DfT have been aware of this for some time. That's how Which work; they're an organisation I know very well.

My employer has also been subject to intense Which scrutiny, but the reality is the relationships are generally cordial. Pragmatic organisations would welcome clarity being brought.

Posters suggesting this means the end of, for example, catering or that it's some sort of attack on the railway are completely misinformed.

lejog · 26 Feb 2017

AlterEgo said:
Nobody is suggesting that. Which are a pressure group and are attempting to change or clarify the law by subjecting it to a stress test of sorts.

RDG/DfT have been aware of this for some time. That's how Which work; they're an organisation I know very well.

I agree that clarification by the courts of what constitutes reasonable consequential loss is badly needed. The NRCOT currently says this.

34. Limitation of a Train Company’s liability
Except as shown above, Train Companies will not accept liability for any loss (including consequential loss), caused by the delay and/or cancellation of a train service. However, they will consider additional claims in exceptional circumstances.

This section and section 32 do not affect rights and remedies you would otherwise have under the Consumer Rights Act 2015, unless the law allows this.

The first paragraph tries to limit consequential loss to zero (which is a clear breach of the new law).

The second effectively says yes we know the first paragraph isn't enforcable, but invites people to take legal action to claim consequential losses, so a court may decide what is reasonable.

Edit: While I can see that the people drafting the NRCOT might find it difficult to get all the members of ATOC to agree as to what is a reasonable level of consequential loss to include and so end up with this mess, all a clear breach of the law will do is p*** off the court when a case is brought.

meridian2 · 26 Feb 2017

My wife is a daily rail user, and drives for 13 minutes to catch a train which is always 10 to 12 minutes late, something that's been the case for 5 years. The TOC must have had a purge, because it has recently begun to arrive on time, causing her to miss her train and having to wait for the next one.

Does she have a claim?

Timrud · 26 Feb 2017

Your wife wants to claim because the train was on time?

This post captures exactly what is wrong with modern claims culture

miami · 26 Feb 2017

There is nothing modern about "compensation culture", the tabloids were going on about it in the 90s. Nor does such a culture exist outside the minds of tabloid readers.

meridian2 · 26 Feb 2017

The situation is absolutely true. I used to nag her about filing for lateness compensation, but as she pointed out she'd have to spend every morning break filling in forms instead of enjoying a coffee. She sees any lateness as an Act of God, but I don't think all employers would support her magnanimity.

deltic · 26 Feb 2017

As someone who works for a company that will never sign a contract that includes a liability for consequential losses I can see fewer companies wishing to bid for contracts in the rail sector unless there is an agreed limit to such losses. Otherwise companies will end up suing all the way down the supply chain.

HH · 26 Feb 2017

AFAIK if a loss is seen as "too remote" from the cause it will not be allowed in English Law. I feel 100% certain that lost deals would fall into this category. With regard to missed flights, I rather suspect the courts would view it on the base of reasonableness, e.g. if your train was 10 minutes late then it would be thrown out, but two hours late then the damage would foreseeably arise and the train company be held responsible. Where the dividing line might sit would depend on the circumstances.

No company in its right mind is going to encourage its customers to make consequential loss claims, because in general the main winners will be the lawyers. The industry already pays out a fortune each year to passengers who slip, trip and fall, often at least partly through their own actions, and the legal costs of dealing with these claims often outweigh the claims themselves.

HH · 26 Feb 2017

deltic said:
As someone who works for a company that will never sign a contract that includes a liability for consequential losses I can see fewer companies wishing to bid for contracts in the rail sector unless there is an agreed limit to such losses. Otherwise companies will end up suing all the way down the supply chain.

There's an agreement that prevents this unless the loss reaches a big figure (can't recall the amount off the top of my head or what the agreement is called, but it was put in place at the start of privatisation).

CyrusWuff · 26 Feb 2017

Convenient that Which published this on a Saturday, when TOC "Head Office" staff are generally off work, thus not in a position to provide a prompt reply...Not that I'm at all cynical, you understand.

Hopefully staff briefings will appear early this week in an attempt to clarify/defend matters.

lejog · 26 Feb 2017

deltic said:
As someone who works for a company that will never sign a contract that includes a liability for consequential losses I can see fewer companies wishing to bid for contracts in the rail sector unless there is an agreed limit to such losses. Otherwise companies will end up suing all the way down the supply chain.

I wouldn't compare consequential losses in business contracts with consumer contracts. Yes, I've sat in contract negotiations where clients have sat there asking for levels of consequential damages that would bankrupt our company several times over.

Any reasonable agreement has to balance the commercial interests of the client and the commercial wellbeing of the supplier.

However in this case the pockets of the TOCs are deep compared with the consumer.

AlterEgo · 26 Feb 2017

CyrusWuff said:
Convenient that Which published this on a Saturday, when TOC "Head Office" staff are generally off work, thus not in a position to provide a prompt reply...Not that I'm at all cynical, you understand.

Hopefully staff briefings will appear early this week in an attempt to clarify/defend matters.

As previously stated, RDG/DfT have known about this for a very long time. That's how Which work; they engage with the "adversary" from the outset. Which are not a combative organisation and they'll have been meeting with key stakeholders on the railway side for some time prior to the press release going out. Which typically share their press releases with stakeholders under a day or two's embargo.

National Rail Conditions of Travel 'unlawful'

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