Arriva Wales compensation

Discussion in 'Disputes & Prosecutions' started by LisaH, 7 Sep 2018.

  1. JN114

    JN114 Established Member

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    Yes, very eloquent; but I note you dodged the question I actually asked.

    How do you define the first step of your 2-stage process? What actually constitutes “reasonable efforts” - if the burden of proof is to be on the train operator; then what would you accept as a reasonable effort? What tests are you intending on applying to the actions of those who are tasked in their very job description to mitigate and proactively prevent delay; that they are, in the eyes of your new hypothetical legislation, making reasonable effort?
     
  2. ForTheLoveOf

    ForTheLoveOf Established Member

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    Apologies, I changed what I said after I started writing it. In my view, both legs of the test have to be fulfilled in order for a TOC's claim of NRCoT 33.4 exemption from having to pay compensation to be valid. Even if one is fulfilled I don't see that's enough, as it is a question of whether the matter is entirely outside the control of the rail industry - that implies that if it is something within their normal operation (e.g. staffing, having enough working trains) then nothing in relation to this can be an exceptional circumstance. In relation to issues they don't normally deal with, they must make every (reasonable?) effort to prevent and/or mitigate the delay.

    This is not new legislation by any means - this is just my interpretation of NRCoT 33.4 and its meaning as it already exists (taking into account Courts' views on similar clauses/laws for other public transport like flights).

    In terms of "reasonable efforts" - you cannot have a general standard and this is something that will always be situation dependent. However, the TOC has to do everything that they have the power to do - and I don't think that cost or inconvenience can be said to rule out an option, unless it is excessive. In the case of a bridge strike for example, offering to reroute passengers as soon as the length of the delay is apparent - and arranging ticket acceptance straight away with local buses or other operators (even if this costs money) would be the minimum in my view. If there is a lengthy delay and there are no alternative public transport options, they should arrange taxis/minibuses in my view.

    I don't propose that TOCs are actually forced to do all this - however they cannot claim a delay is "entirely outside the control of the rail industry" if, for cost saving reasons, they opt to just wait out the issue and then resume a service when it's operationally convenient. That's a delay that may have been precipitated by an event outside the rail industry's control, but the resultant delay is then amplified (or rather, not mitigated) for a variety of reasons within the railway's control and choice.
     
  3. Llanigraham

    Llanigraham On Moderation

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    You seem to forget that the Train Operator can do nothing until Network Rail have decided what THEY are going to do about the bridge.
     
  4. sheff1

    sheff1 Established Member

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    I expect that is one of the reasons why all new franchises are obliged to offer Delay Repay under which it is 100% clear that compensation is payable for all delays over the threshold, regardless of either the initial cause or the reasonableness, or otherwise, of subsequent recovery actions.

    Unfortunately for the OP, ATW are still operating under the earlier ambiguous regime.
     
  5. LisaH

    LisaH Member

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    An update - I let Arrive know I was less than impressed and they sent me a £10 voucher. I had expected over £50 but as my son said 'at least it paid for the coffees we bought while we waited'
     
  6. Gareth Marston

    Gareth Marston Established Member

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    gesture of goodwill in the circumstances not bad.
     
  7. LisaH

    LisaH Member

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    Googled https://www.walesonline.co.uk/news/wales-news/long-delays-major-road-after-15027616
    The train wasn't cancelled but started 3 stops late (missing out Manchester Piccadilly to Wilmslow but running through Abergavenny) - devil's advocate here thinks that since the bridge was open at that point the fact that the train started late was only indirectly due to the car hitting the bridge and actually the reason was either "no rolling stock available" or "no driver available"!) Probably not pursuing further though!!!
     
  8. Haywain

    Haywain Established Member

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    All new franchises that aren't Great Western, anyway.
     
  9. 6Gman

    6Gman Established Member

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    They turned the train early (at Crewe if I'm reading this correctly). This happens from time to time. They do it not because it's impossible to run to Manchester, but to minimise the knock-on effect on later services.

    As such it is, I would suggest, entirely within the control of the TOC. Full delay repay should therefore apply. (IMO)
     
  10. Redonian

    Redonian Member

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    I was on the northbound train which was indeed terminated at Crewe. It was getting on for 50 minutes late at Leominster, where I got on, due to a bridge strike which was, I think, somewhere north of Cwmbran. Interestingly the guard made multiple announcements that everyone delayed should make applications for Delay Repay compensation.
     
  11. Haywain

    Haywain Established Member

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    If it was going to put a driver or guard out of time then they had no choice. And if it had run through and been an hour late on the return working as a result, then the delay would still have been caused by the bridge strike. Which is out of the control of the rail industry.
     
  12. ForTheLoveOf

    ForTheLoveOf Established Member

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    But that's not entirely outside the control of the rail industry - it is merely an indirect cause of an event outside the control of the rail industry. They could still run the service as planned if they had enough staff.

    The fact that certain cost-saving decisions have been made around staffing levels and turnaround times means that, when the direct cause of the delay is something like "driver out of hours" or "delay on inbound working", that's within the control of the rail industry and so it cannot be exempt.

    I would personally be inclined to pursue this legally - having heard more about the details of the matter it seems ATW are on very shaky ground rejecting the claim.
     
  13. JN114

    JN114 Established Member

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    Excellent. Off you go then. And don’t settle either; let’s see if we can actually have a judgement on what constitutes “within industry control” and “reasonable efforts”.
     
  14. Haywain

    Haywain Established Member

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    You do spout some rubbish.
     
  15. najaB

    najaB Veteran Member

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    They had enough staff to run the service they intended to run.
    You'll be hard pressed to make the argument that not having people sitting around idle demonstrates a lack of care in providing the service.
     
  16. ForTheLoveOf

    ForTheLoveOf Established Member

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    Delay compensation is only non-payable if the cause of the delay was entirely within the control of the rail industry. If there are some factors that are within the rail industry's control, and some which are not, that is not entirely. And so compensation must be paid.

    ATW are playing silly buggers, there's no excuse and there's no reason to hold off going full whack on them. You know perfectly well they would not be being this lenient if it were a passenger who hadn't paid their fare during one of their regular "crackdowns".
     
  17. Gareth Marston

    Gareth Marston Established Member

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    Is "Pursue this legally" out on PlayStation yet?
     
  18. Haywain

    Haywain Established Member

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    Taking that argument to its logical conclusion you could argue that a delay caused by a bridge strike is the railway's fault because they chose to run the train over a particular route with a low bridge on it. The railway does not and can not have infinite resources and therefore knock on delays will result from the original incident that the railway cannot avoid.
     
  19. ForTheLoveOf

    ForTheLoveOf Established Member

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    No, that is clearly not something that is reasonably within the rail industry's control (unlike other track/route related issues such as vegetation). But a driver running out of hours is - that is at the heart of running a railway and contingency measures should be in place to accommodate for delays (e.g. by having drivers on-call at key stations, like Shrewsbury, Crewe or Manchester for ATW).

    I am not proposing some new system - this is simply how the existing system works. If you don't like it, petition for it to be changed!
     
  20. Haywain

    Haywain Established Member

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    I am perfectly happy with the existing system and existing definitions. It seems to be you arguing that something is wrong.
     
  21. WelshBluebird

    WelshBluebird Established Member

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    It is the wording "entirely" that causes the issue. If the wording was "reasonably" then fair enough, but as it is "entirely" I am on ForTheLoveOf's side here. How is a driver running out of hours and thus there not being a driver available "entirely" outside the ToC's control? If they put a second driver on the train as a spare then that would solve the issue. Now I know that is ludicrous and I am not for one moment suggesting that should happen, but it is obviously something the ToC can control.

    In reality what I think should happen is that all ToC's should just move to the Delay Repay terms where even outside events are payable. That makes it a lot simpler!
     
  22. Haywain

    Haywain Established Member

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    It isn't simply the driver running out of hours, but the reason for that happening. It wouldn't happen if the bridge strike didn't happen and therefore cannot reasonably be considered to be something that the railway can control.
     
  23. najaB

    najaB Veteran Member

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    Because the root cause - the bridge strike - was outside the railway's control. If you want to play 'consequential factors' then everything is within the railway industry's control - track blocked due to six feet of snow? That's the railway's fault because they didn't think to install a continuous roof over the entire route. Electric trains can't run because of a nationwide blackout? The railway's fault for not building their own power station and grid. And so on...
     
  24. JN114

    JN114 Established Member

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    Surely that driver would be on the train for the same number of hours and thus also out of hours?
     
  25. Llanigraham

    Llanigraham On Moderation

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    Quite!!
    But it appears that some people on here cannot and do not want to understand the rules that the railway has to work to.
     
  26. WelshBluebird

    WelshBluebird Established Member

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    The railway decided on the wording, not me.
    The word "entirely" has a very specific meaning.
    As I said, I don't actually think any of this should be part of the discussion anyway - just pay out regardless of cause as is the case with Delay Repay.

    I would have assumed a driver riding as "rest" wouldn't count to their hours (which is how it works for coach drivers).
     
  27. najaB

    najaB Veteran Member

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    As does 'cause'.
     
  28. JN114

    JN114 Established Member

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    They’re booked on, the clock is counting.
     
  29. 6Gman

    6Gman Established Member

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    But staffing is within the control of the railway and so they should be paying delay repay.
     
  30. 221129

    221129 Established Member

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    Which isn't a new franchise?
     

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