DB Cargo guilty of safety breach at Tyne Yard leading to life changing injuries for 13 year old

[whhistle]

What we seem to be saying here is that unless there's a fence, I am allowed to go anywhere and it won't be my fault?
I can think of 20 stations where I could wander off the end of the platform... but then I guess most will have a sign.
I wonder what the judge would say if I said I couldn't read though.

 

[Surreytraveller]

What we seem to be saying here is that unless there's a fence, I am allowed to go anywhere and it won't be my fault?

Basically, yes.

I can think of 20 stations where I could wander off the end of the platform... but then I guess most will have a sign.
I wonder what the judge would say if I said I couldn't read though.

Don't be silly

 

[krus_aragon]

What we seem to be saying here is that unless there's a fence, I am allowed to go anywhere and it won't be my fault?
I can think of 20 stations where I could wander off the end of the platform... but then I guess most will have a sign.
I wonder what the judge would say if I said I couldn't read though.

If there's a fence or sign, then the landowner has made an effort to warn you off (and also denote where you should stop and turn back).

The law as it stands expects a reasonable effort from landowners to warn people off. The judge decided that DB's efforts weren't reasonable.

 

[furnessvale]

And don't forget the law requires railway companies to fence the railway off from the public.
The fine is not unfair at all

I stand to be corrected but I believe the law requires the railway to fence off for animals, not humans who, I presume, are not expected to carry out Darwins Law.

 

[furnessvale]

If there's a fence or sign, then the landowner has made an effort to warn you off (and also denote where you should stop and turn back).

The law as it stands expects a reasonable effort from landowners to warn people off. The judge decided that DB's efforts weren't reasonable.

The law as applied to railways requires a trespass warning notice to be displayed at the nearest passenger station. It would be impractical to display notices which could be read from every inch of lineside fencing.

 

[Arriva 175]

I've read on Railway Herald this morning about Transport for Greater Manchester saying that there have been 68 incidents of tram surfing on Metrolink including children as young as 11. When will we stop putting fences around everything before we realise that if we touch an overhead wire or third rail that has 25,000 volts AC or 750v DC going through it that we will die! Isn't it time people actually took responsibility for their own actions for once? And maybe rather than a Judge fining a railway company maybe that company or the railway as a whole should be focusing on educating people in the local area about the dangers of our railway network?
My other half works in a school for 4-11 year olds and at no point does anything in the kids education include a visit to the local mainline City centre railway station or a visit from anyone from the railway industry. Most of the adult population has no idea about anything to do with trains, nor do they realise how big trains are until they see them at track level. I'm talking about well educated people as well. Some actually think its still British Rail for goodness sake. How are 11 year olds supposed to be taught?

 

[jdxn]

The Health and Safety at Work Act 1974, is clear that, employers must “so far as is reasonably practicable” protect the health and safety of employees by removing or reducing workplace risks. This also covers visitors, contractors - ie anyone on site.

If there are gates left open or not working, security working days and not nights, no signage etc you are going to run into problems demonstrating that you have take ‘all reasonably practicable steps’

I find references to natural selection offensive, and there is no excuse for companies not to follow the law.

The other thing to remember is that the burden of proof is different for health and safety. The company must prove that they have taken all reasonable steps, not for the enforcing agency to prove that they haven’t.

It’s quite hard to hide under the HSAW act and that’s quite right too.

If a company fails to do that they can expect a large (can be unlimited) fine and it is entirely deserved. People here should not make excuses for them because we all like railways!

 

[DelW]

The law goes a little further than the coverage described by jdxn - premises owners or occupiers are required to extend a duty of care even to anyone who is on their premises illegally. There have been cases where intruders have fallen through roofs during attempted burglaries, and the owners were considered at least partially at fault for not having prevented such access. You may or may not agree with such a law, but that is what it states.

The judge will take into account what efforts the owners or occupiers have made to prevent illegal access when assessing if or how much they are at fault. In this case, the fact that DB had left the site unfenced, and that DB's employees knew that the site was being intruded into and apparently did nothing to deal with it, will have told against them. As for the size of the fine, I suspect it was pitched at a level that would make it more economic for DB or others in a similar position, to spend the money securing their sites, rather than to pay a similar fine in future.

 

[Tetchytyke]

A jury convicted them on the evidence, so all the wibble about mean judges is irrelevant.

If you have a dangerous site and leave the gate wide open you're asking for trouble. You have a duty to protect the dangerous bits of land. A wide open gate on a farm track isn't taking reasonable steps.

It's not about turning your site into Fort Knox, but about doing the basics.

 

[Senex]

The law goes a little further than the coverage described by jdxn - premises owners or occupiers are required to extend a duty of care even to anyone who is on their premises illegally. There have been cases where intruders have fallen through roofs during attempted burglaries, and the owners were considered at least partially at fault for not having prevented such access. You may or may not agree with such a law, but that is what it states.

The judge will take into account what efforts the owners or occupiers have made to prevent illegal access when assessing if or how much they are at fault. In this case, the fact that DB had left the site unfenced, and that DB's employees knew that the site was being intruded into and apparently did nothing to deal with it, will have told against them. As for the size of the fine, I suspect it was pitched at a level that would make it more economic for DB or others in a similar position, to spend the money securing their sites, rather than to pay a similar fine in future.

And that's where many of us who very strongly support H&S legislation in so far as it looks after the interests of employees and others legally entitled to be present disagree very strongly indeed with any protection for criminals. If they have no right to be there, they should have no protection.

 

[Tetchytyke]

Isn't it time people actually took responsibility for their own actions for once?

That works both ways, though. DB's staff had a duty to take basic steps to secure their site, and they couldn't/wouldn't/didn't do that.

There does need to be more education in schools, I agree. But that ended with BR and now none of the many railway companies want to take responsibility (pay) for delivering it.

 

[Mathew S]

And that's where many of us who very strongly support H&S legislation in so far as it looks after the interests of employees and others legally entitled to be present disagree very strongly indeed with any protection for criminals. If they have no right to be there, they should have no protection.

It's not that simple, though. DB staff knew that trespassers were entering the site, they knew that those trespassers included children, and they failed to take reasonable steps to do anything about that. If it was a simple case of someone trespassing and getting hurt, I'd be more sympathetic. In this case, though, the company (or its employees) knowingly failed to act to protect people who they knew to be at risk of death or very serious injury. In my book, that's pretty indefensible; especially when all they needed to do was lock (or install and then lock) the gates.

 

[furnessvale]

It's not that simple, though. DB staff knew that trespassers were entering the site, they knew that those trespassers included children, and they failed to take reasonable steps to do anything about that. If it was a simple case of someone trespassing and getting hurt, I'd be more sympathetic. In this case, though, the company (or its employees) knowingly failed to act to protect people who they knew to be at risk of death or very serious injury. In my book, that's pretty indefensible; especially when all they needed to do was lock (or install and then lock) the gates.

Fine words. I know of one case where a child died on the WCML. The local neighbours kicked up a stink that the fencing was inadequate. A new fence was installed but crucially, observations were set up. That evening the parents of the dead child were seen cutting open the fence so they could continue to cross the line to the boozer on the other side!

 

[deltic08]

It's not that simple, though. DB staff knew that trespassers were entering the site, they knew that those trespassers included children, and they failed to take reasonable steps to do anything about that. If it was a simple case of someone trespassing and getting hurt, I'd be more sympathetic. In this case, though, the company (or its employees) knowingly failed to act to protect people who they knew to be at risk of death or very serious injury. In my book, that's pretty indefensible; especially when all they needed to do was lock (or install and then lock) the gates.

But the trespasser ignored signs on the vehicle he climbed onto to warn him of danger.

 

[Mathew S]

Fine words. I know of one case where a child died on the WCML. The local neighbours kicked up a stink that the fencing was inadequate. A new fence was installed but crucially, observations were set up. That evening the parents of the dead child were seen cutting open the fence so they could continue to cross the line to the boozer on the other side!

Sounds like the company (or Network Rail, I assume) did exactly the right thing there. One hopes the parents were prosecuted.

 

[Mathew S]

But the trespasser ignored signs on the vehicle he climbed onto to warn him of danger.

Signs which were, in the view of a jury, insufficient by themselves to satisfy the company's duty of care.

It's important to remember that this is a case which was decided on by a jury. 12 random people off the street (yes, I do know it's more involved than that) considered all the facts of the case and decided that the company had not acted reasonably. This isn't a case of the law being unfair, nor is it about some evil nasty judge (or 'the establishment') being out to get anyone, nor is it a 'nanny state'. It is twelve ordinary people who decided that the company were in the wrong.

 

[Aictos]

I'm sorry but the fine is unfair as 1. Those trespassers had no right to be there and 2. The trespassers should have taken responsibility for their own actions.

That might sound harsh but the railway isn't there to babysit people who shouldn't be there in the first place so tough, it's a simple but sad reflection of the Darwin society we live in.

 

[DelW]

I don't think that signage on its own has ever been regarded by the HSE as adequate for protection from hazards, there are too many people who may be too young to understand it, be unable to read and/or comprehend it, may be unable to speak English, etc.
Following a recent (re)training course, I have on my desk a construction industry guide on site supervision and safety. It is quite clear on responsibility to keep the site secure with hoardings and lockable gates. If the entire site cannot reasonably be secured, then any hazardous areas must be. It specifically mentions that evidence of children trespassing must be reported to site management immediately and appropriate action taken, including vigilance against future instances of trespass.

 

[Senex]

But the trespasser ignored signs on the vehicle he climbed onto to warn him of danger.

And these were teenagers who should have been very well aware of the dangers of high-voltage electricity — aren't most of us still taught at a very early age that electricity is dangerous stuff even at 240 volts, and that things like railway OLE and the stuff on pylons are especially dangerous?

 

[The_Train]

And these were teenagers who should have been very well aware of the dangers of high-voltage electricity — aren't most of us still taught at a very early age that electricity is dangerous stuff even at 240 volts, and that things like railway OLE and the stuff on pylons are especially dangerous?

On top of that, teenagers should be able to understand that just because an entrance is left open it doesn't mean it's fair game to enter. I mean, if a supermarket closed for the evening but left their doors open would it mean that it's fair game to enter?

At the end of the day, if the lad had gone to an area where it is permissive to enter and had a game of football with his mates instead of climbing onto trains, we wouldn't be having this discussion now. It's a sad story that someone so young has had to suffer so much but he made a choice that day to do what he did

 

[DarloRich]

On top of that, teenagers should be able to understand that just because an entrance is left open it doesn't mean it's fair game to enter. I mean, if a supermarket closed for the evening but left their doors open would it mean that it's fair game to enter?

At the end of the day, if the lad had gone to an area where it is permissive to enter and had a game of football with his mates instead of climbing onto trains, we wouldn't be having this discussion now. It's a sad story that someone so young has had to suffer so much but he made a choice that day to do what he did

This is a preposterous, poorly educated and callous post.

 

[The_Train]

This is a preposterous, poorly educated and callous post.

I don't think that there is anything preposterous and callous about it. It's a case of the harsh reality of the situation and the harsh reality of the decisions we, as humans, make and the consequences that are then faced from the outcomes of these decisions.

Yes DB played their part and yes for this, maybe they deserved to be fined. But to just look at this from that perspective is a little bit short sighted if you ask me

 

[tbtc]

People here should not make excuses for them because we all like railways!

This bears repeating - I think that some enthusiasts think that "the railway" should function in a bubble away from the inconveniences of the modern world - maybe we could put land mines under the trackside to deter blokes with massive cameras from getting too close next time Flying Scotsman passes by - heritage lines should be able to operate without worrying about any Health&Safety - we shouldn't have to scrap people's favourite old trains just because people expect awkward things like "level access" or "disabled toilets" in the 2020s

Or, more reasonably, landowners have certain legal responsibilities - DB are a massive organisation - they will know the requirements for the land that they own - this isn't a fine against a bunch of well meaning volunteers at a preserved railway - this is a big site that needs some protection/enforcement.

They don't have to put a million signs around it, they don't need a thousand fences, but they do need to take reasonable steps to deter people from accessing the dangerous site that they run - that's the law - DB knew the law - it looks like they've been slack in how they deal with that law.

It doesn't matter whether the people concerned were taught about railways at school or not - all dangerous sites require some protection - and the railway should and must comply with the same laws that the rest of the country comply with.

Nobody is saying that the kids were innocent, I don't think that anyone is defending them, but that still doesn't absolve DB of the responsibility to take action - and you can argue that by waging a big fine, that makes it much more cost effective for other companies to properly protect their sites (considering the "stick" if they don't comply).

Also, as an aside, and not a dig at the OP (since I've seen this on a few threads recently), but there seems to be an increase in the number of pejoratively titled threads on the Forum... I'm not a fan!

 

[krus_aragon]

maybe we could put land mines under the trackside to deter blokes with massive cameras from getting too close next time Flying Scotsman passes by

Does anyone have a stash of detonators?

 

[kristiang85]

Out of interest, where does the £3m go? Does it get added to the railway budget? (minus all the legal fees of course)

 

[DarloRich]

Yes DB played their part and yes for this, maybe they deserved to be fined. But to just look at this from that perspective is a little bit short sighted if you ask me

Isn't it time people actually took responsibility for their own actions for once?

You are welcome to express your view. It is not based on law. The law is clear and has not changed for a considerable number of years.

It doesn't matter whether the people concerned were taught about railways at school or not - all dangerous sites require some protection - and the railway should and must comply with the same laws that the rest of the country comply with.

Nobody is saying that the kids were innocent, I don't think that anyone is defending them, but that still doesn't absolve DB of the responsibility to take action - and you can argue that by waging a big fine, that makes it much more cost effective for other companies to properly protect their sites (considering the "stick" if they don't comply).

Also, as an aside, and not a dig at the OP (since I've seen this on a few threads recently), but there seems to be an increase in the number of pejoratively titled threads on the Forum... I'm not a fan!

well said.

It appears that no-one mentioned in Court that every wagon in the yard displayed a warning of electric wires overhead especially where the ladders are.

That is of very little consequence.

BTW DB were NOT fined £3m unfairly.

 

[Tetchytyke]

That evening the parents of the dead child were seen cutting open the fence so they could continue to cross the line to the boozer on the other side!

Source or it didn't happen.

Yes DB played their part and yes for this, maybe they deserved to be fined. But to just look at this from that perspective is a little bit short sighted if you ask me

Oh to live in your world where nobody ever makes mistake. The kid was 11 FFS!

just because an entrance is left open it doesn't mean it's fair game to enter.

If I got burgled after leaving my door wide open, my insurer wouldn't pay out.

What was your point again?

 

[Tetchytyke]

However, where I disagree with the current position of the law is that I do not think the estates or families of trespassers, or the trespassers themselves, should be entitled to damages if they cause a self-inflicted injury

There is nothing on this thread about compensation. Personal injury law DOES pay regard to culpability, and awards can be reduced to zero if the injured party is 100% culpable.

In this case it's a child, so culpability isn't assessed in an adult way. Children are attracted to places without a real understanding of risk. That is why owners of dangerous sites- railway yards, quarries, building sites- are expected to take reasonable steps to keep their sites secure.

The law is largely the way it is to make landowners look after their things. There's also an element of preventing booby-trapping.

 

[Tetchytyke]

Not necessarily true, it is entirely possible that these boys would still have found their way in. And herein is the point.

It isn't the point. It's whataboutery of the highest order.

They walked in with nothing to stop them. No gate, no fence, no sign. They might have scaled a fence to get in, they might have tried and failed, they might have flown over the fence in rocket powered underpants or they might have gone home. We'll never know BECAUSE THERE WASN'T A GATE OR A FENCE.

I've genuinely no idea why this is so difficult to understand.

 

[ForTheLoveOf]

There is nothing on this thread about compensation. Personal injury law DOES pay regard to culpability, and awards can be reduced to zero if the injured party is 100% culpable.

In this case it's a child, so culpability isn't assessed in an adult way. Children are attracted to places without a real understanding of risk. That is why owners of dangerous sites- railway yards, quarries, building sites- are expected to take reasonable steps to keep their sites secure.

The law is largely the way it is to make landowners look after their things. There's also an element of preventing booby-trapping.

I remember when I was 9 or 10, we were taken to a local secondary school to see what electricity did when it jumped an air gap. I think it was pretty obvious to me from that age onwards, and possibly even earlier due to what we were taught about plug sockets, that electricity was extremely dangerous if used incorrectly. I really can't imagine that children that were 11 to 13 years old didn't know the dangers of electricity, I certainly did when I was that age. Perhaps that's because I grew up around an (almost) entirely AC OHLE railway though...

What I can see as much more likely is that the children didn't realise the 'wires' were electric lines with 25kV. I would like to hope they would have been much more careful if they had known that, even if they would still have entered the yard.

Ultimately, in an incident such as this no-one comes away from it with clean hands. DB were severely negligent in leaving a public way in to the yard open without any signage, and certainly for failing to do anything about it despite knowing about it due to the reports they had received. But the children were very stupid to have gone into a rail yard in the first place. I don't think they can entirely be blamed for not knowing what the OHLE was.

It might be worthwhile ensuring that, quite apart from the obvious "no trespassing" signage being in place at all places of access to the railway, that clearly visible, and if necessary graphic, signs warning of OHLE or third rail and the potential life-changing implications thereof are present. Then no-one who can read can say they didn't know of, or realise, the danger that existed.