Delay repay rejected - train hit a deer

firsttraveller · 13 Feb 2020

Had a nightmare of a journey the other week which was well over an hour delayed - the first train was cancelled and the next severely delayed (knock on effect). We were told nothing more than the first train had a fault on it so couldn’t run.

Submitted delay repay for it, and it’s been rejected. They said the train hit a deer causing the fault so it was out of their control. There are a few references online mentioning that hitting birds etc would be outside of the TOCs control, but for large animals, this is within their control as there should be sufficient fencing to keep them off the line, but nothing official I could quote.

I’ve replied stating this reason but I have been rejected again saying because it is a “wild animal” and this was a root cause of all the issues that day, it’s not their fault.

Am I correct or are they? If so, is there any guidance anywhere for what TOCs can use as “out of their control” that I can quote if I escalate?

The TOC is Chiltern if that makes a difference.

I would normally be willing to let it go, but it completely ruined my Friday night plans.

RailUK Forums

Hadders · 13 Feb 2020

The railway is responsible for maintaining the boundary fencing protecting the tracks, not the adjacent landowner. If a deer got onto the tracks one can assume that this is because the railway's fence was inadequate and therefore their responsibility.

Bletchleyite · 13 Feb 2020

It does make a difference that it's Chiltern. Being one of the original franchises, Chiltern doesn't operate Delay Repay, instead it does the old Charter compensation where incidents out of their control (animals, weather, whatever) are not included. So they are correct to reject unless the deer got there because they hadn't maintained their fence properly. Sorry!

robbeech · 13 Feb 2020

Bletchleyite said:
It does make a difference that it's Chiltern. Being one of the original franchises, Chiltern doesn't operate Delay Repay, instead it does the old Charter compensation where incidents out of their control (animals, weather, whatever) are not included. So they are correct to reject unless the deer got there because they hadn't maintained their fence properly. Sorry!

I suppose they could suggest that it got there via a level crossing or other foot crossing where there is no gate/fence but would this not be for them to prove?

HSP 2 · 13 Feb 2020

Bletchleyite said:
It does make a difference that it's Chiltern. Being one of the original franchises, Chiltern doesn't operate Delay Repay, instead it does the old Charter compensation where incidents out of their control (animals, weather, whatever) are not included. So they are correct to reject unless the deer got there because they hadn't maintained their fence properly. Sorry!

How many other ToCs have the same policy?

Hadders · 13 Feb 2020

Level crossings usually have protection (cattle grid style barriers) to prevent intrusion onto the tracks.

PeterC · 13 Feb 2020

Hadders said:
The railway is responsible for maintaining the boundary fencing protecting the tracks, not the adjacent landowner. If a deer got onto the tracks one can assume that this is because the railway's fence was inadequate and therefore their responsibility.

Is the legal requirement to fence against wild animals or only against livestock? A falllow or roe deer will easily clear a fence that will keep in cattle, sheep or horses.

alxndr · 13 Feb 2020

NR seem to accept that deer will get trackside. Somewhere up in the depths of Scotland (I forget where now) they’ve recently slightly lowered the fencing to allow young deer to jump off the railway easier and were quite pleased about the fact. Unless they’ve built a huge ditch on the public side it’ll also make it easier for them to jump onto the railway.

t_star2001uk · 13 Feb 2020

PeterC said:
Is the legal requirement to fence against wild animals or only against livestock? A falllow or roe deer will easily clear a fence that will keep in cattle, sheep or horses.

The most common species of deer to be involved in animal vs train incidents are Muntjac deer. Although they are around the size of a medium dog, they can cause damage to couplings and air pipes under the train.

yorkie · 13 Feb 2020

firsttraveller said:
Had a nightmare of a journey the other week which was well over an hour delayed - the first train was cancelled and the next severely delayed (knock on effect). We were told nothing more than the first train had a fault on it so couldn’t run.

Submitted delay repay for it, and it’s been rejected. They said the train hit a deer causing the fault so it was out of their control. There are a few references online mentioning that hitting birds etc would be outside of the TOCs control, but for large animals, this is within their control as there should be sufficient fencing to keep them off the line, but nothing official I could quote.

I’ve replied stating this reason but I have been rejected again saying because it is a “wild animal” and this was a root cause of all the issues that day, it’s not their fault.

Am I correct or are they? If so, is there any guidance anywhere for what TOCs can use as “out of their control” that I can quote if I escalate?

The TOC is Chiltern if that makes a difference.

I would normally be willing to let it go, but it completely ruined my Friday night plans.

I don't think the title is correct as Chiltern do not operate a Delay Repay scheme; if they did then your compensation request would have been approved.

Is it correct? It depends; the rule for Chiltern is that if the "rail industry" (including Network Rail) is considered to be liable then you have a valid claim. So it depends on how the deer came onto the line, for example if the deer was able to get through a fence then clearly Network Rail would be at fault, but if a third party left a gate to a manual crossing open then the rail industry may not be deemed liable.

You could send an FOI request to Network Rail asking for more information regarding this incident, stating the reason why you are asking. You could also inform Chiltern that you would like more information regarding the incident and state you have requested information from Network Rail and would like the case to be re-examined depending on how the deer came to be on the line.

You can also refer the matter to the Rail Ombudsman: https://www.railombudsman.org/making-a-complaint/start-a-complaint/

some bloke · 13 Feb 2020

firsttraveller said:
well over an hour delayed

Isn't @firsttraveller covered anyway because of the length of delay?

National Rail Conditions of Travel said:
33.4. A Train Company may not be obliged to pay compensation under this
Condition if the cause of the delay was entirely outside the rail industry’s control.
Each Train Company’s Passenger’s Charter will set out any exclusions that
applies to such claims in respect of their services. However, you are entitled to
compensation if the delay was 60 minutes or longer, regardless of fault.

https://www.nationalrail.co.uk/times_fares/46427.aspx

Also according to the Conditions of Travel, the cause has to be *entirely* outside the rail industry's control; and the Passengers' Charter refers back to the Conditions rather than specifying that it covers this type of cause.

https://www.chilternrailways.co.uk/customer-service/passengers-charter

yorkie · 13 Feb 2020

some bloke said:
Isn't @firsttraveller covered anyway because of the length of delay?

https://www.nationalrail.co.uk/times_fares/46427.aspx

Also according to the Conditions of Travel, the cause has to be *entirely* outside the rail industry's control; and the Passengers' Charter refers back to the Conditions rather than specifying that it covers this type of cause.

https://www.chilternrailways.co.uk/customer-service/passengers-charter

Sorry yes you are absolutely right. Chiltern have to at least pay the minimum amount stipulated in the NRCoT.

sheff1 · 13 Feb 2020

Yes, NRCoT 33.4 changed in December 2019.

It does not surprise me that Chiltern are apparently in denial about the change. Some TOCs are still in denial about the split ticketing conditions in the NRCoT which were changed in October 2016 !

firsttraveller · 13 Feb 2020

This forum is always a fountain of knowledge. Thank you so much everyone who has replied. I will let you know how I get on.

Incidentally, with the changes to that clause, would this now mean compensation could be claimed for any delays caused by fallen trees/floods etc which have previously been excluded or does this fall under a separate “act of god” type clause?

firsttraveller · 13 Feb 2020

And my apologies for the confusion about the difference between delay repay and the compensation offered by Chiltern...

island · 13 Feb 2020

HSP 2 said:
How many other ToCs have the same policy?

None. The last few to change were, in no particular order, GWR, TfW, and South Western.

Essan · 13 Feb 2020

I am surprised that a train hitting a deer caused any delay - if that were the norm, then trains on the West Highland line would be seriously delayed, as a result, almost every day. Especially in winter.

Kite159 · 13 Feb 2020

island said:
None. The last few to change were, in no particular order, GWR, TfW, and South Western.

Merseyrail are also on the older scheme which doesn't pay out if it wasn't in control of the rail industry.

yorkie · 13 Feb 2020

Add Grand Central to that list! They once argued with me, which I made them regret.

I won't bore you with the details in this thread.

firsttraveller said:
...would this now mean compensation could be claimed for any delays caused by fallen trees/floods etc which have previously been excluded ..

Yes, delay providing the delay is 60 minutes or longer.

Delay Repay schemes pay out regardless.

najaB · 14 Feb 2020

Essan said:
I am surprised that a train hitting a deer caused any delay - if that were the norm, then trains on the West Highland line would be seriously delayed, as a result, almost every day. Especially in winter.

It depends entirely on the type of deer and what parts of the train met what part of the deer. As noted above:

t_star2001uk said:
The most common species of deer to be involved in animal vs train incidents are Muntjac deer. Although they are around the size of a medium dog, they can cause damage to couplings and air pipes under the train.

philthetube · 15 Feb 2020

It is not uncommon to see deer on the metropolitan line and that is very well fenced

fireftrm · 19 Feb 2020

They'll always just claim it was too expensive...... :lol:

Howardh · 19 Feb 2020

philthetube said:
It is not uncommon to see deer on the metropolitan line and that is very well fenced

I've no idea, are foxes an issue for suburban underground lines?

Delay repay rejected - train hit a deer

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