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.
