Sandilands Tram Crash - An Accident

[Meerkat]

This does imply that Tramlink are admitting that their procedures and systems were not up to scratch, and therefore they are accepting some liability. If Tramlink were faultless, why introduce such measures as working no more than 5 days in a row, and adding chevrons and an automatic braking system?

Is “we can do more” the same as liability?

 

[AlterEgo]

Is “we can do more” the same as liability?

No, although the key question is whether it was obvious, given the safety profile of that curve, to install warnings beforehand.

 

[bramling]

There are absolutely questions for the tram operating company to answer, but the proximal cause of the crash was the driver falling asleep.

I don't agree that this is the correct diagnosis. It strikes me as more the case that the cause was "the driver *probably* falling asleep, with no engineered safeguards in place to mitigate against that possibility, and a roster pattern which may have contributed to fatigue".

Wouldn't you agree that expressing it this way changes things somewhat?

 

[43066]

This is an argument that a lower standard of driving is permissible for professional driver and that they do not have the same legal or moral responsibility to stop the job than a private driver (who very well may be doing something very important while driving tired, like trying to turn up for work!).

If the driver had consciously known he was too tired to continue I would agree, but I’d suggest he wasn’t aware of that: he probably wasn’t any more tired than he had been in many other occasions. Professional drivers are fatigued a lot of the time and have to just get on with it.

I agree that professional drivers should be held to a higher standard, and are, but again there is no evidence the driver had erred in this case.

Your argument is not a good argument and fails. Professional and individual drivers have the same moral and legal responsibilities.

Generally I’d argue that professional drivers have a greater responsibility. If you drive a car drunk you’ll get a ban and a few penalty points, do the same with a train and you’ll face a prison sentence, and quite rightly.

No it doesn’t follow. If you fall asleep, absent any medical issues, while driving a vehicle and kill seven people, you will be found guilty.

Absent any evidence of other carelessness, I’d suggest driving while inevitably tired as a result of shift patterns and succumbing to an involuntary microsleep is morally equivalent to falling asleep due to medical issues.

Humans are fallible and it’s a societal question as to how we design transport systems around that fallibility, and the level of risk we accept. Trams are a good deal safer than buses or cars, but probably rather less safe than trains.

The argument that tiredness can be so sudden that you lack any competence to arrest it won’t stand up in a court. A professional driver is in fact less able to defend himself against this charge because he, more than the private driver, knows the risks of fatigue and what he can do to arrest or prevent it.

This glosses over the reality that drivers doing the shifts tram drivers do are *inevitably* going to be fatigued. Being able to arrest or prevent this depends on having a culture where individuals being able to claim they are too tired to continue without facing sanctions. It sounds like the culture at tramlink was severely lacking in this respect. It’s exactly the same on the railway and fatigue plays a major part in the operational incidents, although of course TOCs don’t like to acknowledge this. Quite honestly I’m amazed there aren’t more accidents.

Driving in the right hand lane of a motorway and feeling suddenly tired has a much lower chance of exiting safety than a tram on a straight track with no interfering traffic, and a brake which can be applied without the risk of crashing from behind. I would much rather be driving a tram on a segregated right of way and feel suddenly tired than be doing 70 on a motorway, three lanes of interfering traffic from safety and multiple decisions and risk assessments to make.

It’s generally going to be easier for a car driver to make the decision to pull off a motorway and stop when tiredness encroaches (and better yet avoid driving while tired in the first place), than for a tram driver to stop in the middle of nowhere, blocking the line, and having to explain to a tram load of New Addington’s finest that the reason they’re going to late for work is because he’s too tired to continue.

Nobody is forced to do a job or continue with it in an unsafe manner. He was a professional driver being paid money to execute his job You may be able to bring mitigation against a guilty verdict or plea by bringing such an argument up but it does not change the legal and moral responsibility of a tram driver to not drive a tram if he is fatigued enough to risk falling asleep.

What about if that happens every shift? Everyone on an early shift (especially the first one) will be fatigued to some extent, It’s physically impossible not to be. As per @ComUtoR ’s post up thread, the culture of the railway (and evidently Tramlink) is that nobody would dream of booking on for work after a few pints, but operating while fatigued is accepted practice. That is a cultural failing which should worry all of us when studies have shown that fatigue can impede performance just as badly as intoxication. Rushing to judgement of the driver in this case overlooks this.

You think the correct moral result for a man falling asleep driving a tram full of people and wiping out seven of them into a grave is to face no legal consequences? Really?

I’m afraid it is tedious and depressing to find professionals in a safety critical industry thinking this is a proper moral outcome, legal issues aside.

In the (admittedly narrow) circumstances where: the driver had had a reasonable night’s sleep; had perhaps felt tired but not dangerously so; was operating in a system which both caused fatigue, and had fostered a culture where drivers were expected to regularly drive while fatigued; where easily available safety systems had not been fitted, the the moral responsibility for an accident rests with the designers and management of the system rather than individual drivers.

I’ll admit I’m surprised that he wasn’t charged with anything given the high profile nature of the case and the inevitable need to find a scapegoat. It’s refreshing to see the CPS taking a more measured and nuanced approach than some of the dreadful charging decisions taken in the recent past (Martin Zee).

There are absolutely questions for the tram operating company to answer, but the proximal cause of the crash was the driver falling asleep.

The case with death by careless driving is that a jury is entitled to infer, unless there are absolutely exceptional circumstances, like a medical issue requiring an expert witness to explain, that a person who falls asleep is aware that they are about to fall asleep.

In my view (and this is perhaps where we will have to agree to disagree) the factors causing this accident equate to just such exceptional circumstances.

Your knowledge is wrong. Many measures have been put into place including chevrons and an automatic braking system which applies the brakes if the tram is travelling too fast towards severe curves. The guardian system also protects against drivers falling asleep. The roster has changed so drivers can only do 5 days in a row.

Thanks, I wasn’t aware of that. From a google search it’s a similar system to TPWS. That is far more positive and useful outcome than imprisoning the driver.

 

[etr221]

Checking the RAIB report, their summary (S23) as to why the driver did not brake correctly is

Although some doubt remains as to the reasons for the driver not applying sufficient braking, the RAIB has concluded that the most likely cause was a temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep. It is also possible that, when regaining awareness, the driver became confused about his location and direction of travel

and in the glossary it gives a definition

Microsleep Unintentional periods of sleep lasting anywhere from a fraction of a second to a few minutes. They are often, but not always, characterised by the closing of eyes or head nodding actions.

which I'm not sure corresponds to what I would understand by "falling asleep".

 

[AlterEgo]

I don't agree that this is the correct diagnosis. It strikes me as more the case that the cause was "the driver *probably* falling asleep, with no engineered safeguards in place to mitigate against that possibility, and a roster pattern which may have contributed to fatigue".

Wouldn't you agree that expressing it this way changes things somewhat?

It doesn't change the driver's moral and legal responsibility to avoid falling asleep, no. It changes nothing.

 

[Meerkat]

which I'm not sure corresponds to what I would understand by "falling asleep".

How is losing awareness, with your eyes closed, and head nodding, not falling asleep?

 

[Nym]

Thanks, I wasn’t aware of that. From a google search it’s a similar system to TPWS. That is far more positive and useful outcome than imprisoning the driver.

Is actually more like ATP than TPWS. It provides continuous supervision in the protection zone to prevent re-accelaration issues.

 

[bramling]

It doesn't change the driver's moral and legal responsibility to avoid falling asleep, no. It changes nothing.

I've always fancied a day-trip to the moon, but I have to be realistic and understand that it's impracticable. I think you need to be equally realistic and accept that people are going to suffer from fatigue at times, no matter what setting they're in.

This is something we all need to accept when we use a piece of machinery operated by a human. Engineered safeguards are the best solution to this reality.

And from a practical point of view, taking the "bang 'em up" line isn't really feasible, as it is likely to have unintended consequences, either no one wanting to do the job, or the only people doing it being those who can't get a job elsewhere.

 

[AlterEgo]

If the driver had consciously known he was too tired to continue I would agree, but I’d suggest he wasn’t aware of that: he probably wasn’t any more tired than he had been in many other occasions. Professional drivers are fatigued a lot of the time and have to just get on with it.

I agree that professional drivers should be held to a higher standard, and are, but again there is no evidence the driver had erred in this case.

I don't know what people fail to understand about the fact that if you fall asleep or "nod off" at the controls of a vehicle which you are being paid to drive, then absent of a medical condition, that is on YOU.

Generally I’d argue that professional drivers have a greater responsibility. If you drive a car drunk you’ll get a ban and a few penalty points, do the same with a train and you’ll face a prison sentence, and quite rightly.

We aren't talking about drunkenness. Drink driving is a wilful, aggravated crime.

Absent any evidence of other carelessness, I’d suggest driving while inevitably tired as a result of shift patterns and succumbing to an involuntary microsleep is morally equivalent to falling asleep due to medical issues.

No it is not. People who are dreadfully tired know they are, and if you fall asleep at the wheel a jury will be entitled to infer this was a voluntary act. The fact the driver in this case is a professional and is supposedly used to these conditions is a seriously aggravating factor. We all know it would have been difficult for drivers to report fatigue to management, but this does not shift his responsibility not to drive a tram in such a condition that he ends up falling asleep.

Humans are fallible and it’s a societal question as to how we design transport systems around that fallibility, and the level of risk we accept. Trams are a good deal safer than buses or cars, but probably rather less safe than trains.

Quite. I was surprised to read how little they were regulated prior to the crash.

It’s generally going to be easier for a car driver to make the decision to pull off a motorway and stop when tiredness encroaches (and better yet avoid driving while tired in the first place), than for a tram driver to stop in the middle of nowhere, blocking the line, and having to explain to a tram load of New Addington’s finest that the reason they’re going to late for work is because he’s too tired to continue.

Couldn't disagree more. If I am doing 70 in traffic in the right hand lane and find myself about to fall asleep, my place of physical safety is the hard shoulder, which is three lanes, at least 20 seconds of wakefulness, and multiple dynamic risk assessments away. This all involves serious risk to me and any passengers I am carrying.

The Tramlink driver merely had to apply the brakes on a segregated right of way with no traffic, no pedestrians, and no risk of being shunted from behind, to avoid the accident from happening. He then has a tram full of people who are disgruntled. How do you expect a court would view that as an excuse not to stop?

What about if that happens every shift? Everyone on an early shift (especially the first one) will be fatigued to some extent, It’s physically impossible not to be. As per @ComUtoR ’s post up thread, the culture of the railway (and evidently Tramlink) is that nobody would dream of booking on for work after a few pints, but operating while fatigued is accepted practice. That is a cultural failing which should worry all of us when studies have shown that fatigue can impede performance just as badly as intoxication. Rushing to judgement of the driver in this case overlooks this.

It is a cultural failing which should be robustly challenged but at best presents only mitigation and not a defence for the driver.

In the (admittedly narrow) circumstances where: the driver had had a reasonable night’s sleep; had perhaps felt tired but not dangerously so; was operating in a system which both caused fatigue, and had fostered a culture where drivers were expected to regularly drive while fatigued; where easily available safety systems had not been fitted, the the moral responsibility for an accident rests with the designers and management of the system rather than individual drivers.

Nope, the moral responsibility rests on the driver who fell asleep at the controls and killed seven people. There may certainly be a joint a several moral responsibility with the tram operator, which I know precious little about to opine about.

I’ll admit I’m surprised that he wasn’t charged with anything given the high profile nature of the case and the inevitable need to find a scapegoat. It’s refreshing to see the CPS taking a more measured and nuanced approach than some of the dreadful charging decisions taken in the recent past (Martin Zee).

The CPS did not take a measured approach as you seem to think. They simply found that there was no evidence to support manslaughter (quite rightly too, nobody here is suspecting that), but actually their explanation is merely that the law did not allow them to charge him with either the offences you might expect. He was neither on a railway nor on a road or in a public place, hence there was a lacuna in the law which this incident fell through.

That's really it - they would have charged him with death by careless driving as a minimum if it happens 200 yards up the road in the street.

Martin Zee case's was terrible. We can agree on this, and I have some sympathy with people who feel the CPS wanted blood in that case. I've posted about that incident before, and my feeling can be summed up thus:

If anyone ever doubted the value of union membership, have a look at the Martin Zee case. The RMT sourced a first class expert witness and provided a good lawyer, in contrast to the rubbish the CPS turned up with. Zee was (rightly) found not guilty, an outcome which was far from guaranteed. They literally saved him from prison.

In my view (and this is perhaps where we will have to agree to disagree) the factors causing this accident equate to just such exceptional circumstances.

We will have to agree to disagree. If you fall asleep, whatever the reason - unless a sudden and unexpected medical one - that is absolutely your own responsibility as a driver, whether you are hauling 20 ton lorries, controlling a tram, or driving a Micra.

If I crash my car on the motorway and say "well look, I really had to get there and I'd have lost my job if I'd pulled over and I'm so sorry I killed seven people, and the curve on the road is nasty and there weren't any rumble strips or a chevron to warn me"... eh...I go on trial, still...sorry, but that's criminal justice for you. Only difference here is the driver wasn't doing it on a road or a railway. Either of those and he goes on trial and likely to prison.

I don't work in the industry but I do understand how drivers might be very antsy at making sure Tramlink learn some damn lessons from this. I have heard ALL the stories about railway fatigue - and I am surprised too that there aren't more accidents. I have said I am surprised they are not feeling the force of the criminal law too. But it is possible to hold their feet to the flame without trying to exonerate a man who, quite simply, fell asleep at work and killed people.

I've always fancied a day-trip to the moon, but I have to be realistic and understand that it's impracticable. I think you need to be equally realistic and accept that people are going to suffer from fatigue at times, no matter what setting they're in.

This is something we all need to accept when we use a piece of machinery operated by a human. Engineered safeguards are the best solution to this reality.

And from a practical point of view, taking the "bang 'em up" line isn't really feasible, as it is likely to have unintended consequences, either no one wanting to do the job, or the only people doing it being those who can't get a job elsewhere.

Balderdash. You are asking me to accept, simultaneously:

- that people fall asleep at the wheel and kill people (well...yeah...people are human, that does happen occasionally)
- AND that there should be no legal consequences if they do.

Not at all, never in a proper society can this be okay. Worst take on the thread by a distance. Try that sort of reasoning with other crimes and see how far that gets you.

 

[bramling]

I don't know what people fail to understand about the fact that if you fall asleep or "nod off" at the controls of a vehicle which you are being paid to drive, then absent of a medical condition, that is on YOU.

I really don't get why you're so hung-up on the notion that just because it's a vehicle that someone happens to be being *paid* to drive, that this makes such a difference. More people were killed at Great Heck, and the motorist at the centre of that wasn't being paid to drive. Why such a difference in your eyes?

If you want to construct an argument to say that falling asleep should automatically lead to severe consequences, then how about applying it across the board, given there's just as much potential for harm to occur as exemplified above.

Incidentally, Hart went to prison not for falling asleep, but for being negligent in his actions which were regarded as having been a contributory factor in him falling asleep.

Balderdash. You are asking me to accept, simultaneously:

- that people fall asleep at the wheel and kill people (well...yeah...people are human, that does happen occasionally)
- AND that there should be no legal consequences if they do.

Not at all, never in a proper society can this be okay. Worst take on the thread by a distance. Try that sort of reasoning with other crimes and see how far that gets you.

I'm afraid your vision of a proper society is unrealistic. You haven't specified what other crimes you have in mind, but I'd bet that these won't involve an involuntarily act which happens as a result of a natural biological process.

I don't like it, I'm just being realistic.

 

[AlterEgo]

I really don't get why you're so hung-up on the notion that just because it's a vehicle that someone happens to be being *paid* to drive, that this makes such a difference. More people were killed at Great Heck, and the motorist at the centre of that wasn't being paid to drive. Why such a difference in your eyes?

Because the fact that a motorist was a professional driver, with additional qualifications and training, with paying passengers, is an aggravating factor in any vehicular crime. it is as simple as that and I am surprised you seem startled that this might be the case.

If you want to construct an argument to say that falling asleep should automatically lead to severe consequences, then how about applying it across the board, given there's just as much potential for harm to occur as exemplified above.

The criminal justice system rightly considers harm caused in most crimes. Hence, if I use my mobile phone at the wheel, and kill someone because I whack into them at 70mph while being inattentive, I probably get done for death by dangerous driving with all the attendant risk of a long prison sentence. No reasonable person would suggest that every single person caught on their mobile, without causing an accident, should go to prison for four years, because harm caused is a key factor, no?

Incidentally, Hart went to prison not for falling asleep, but for being negligent in his actions which were regarded as having been a contributory factor in him falling asleep.

Hart's sentence was longer because of the aggravating factor that he was negligent in driving when obviously very tired, having lied to the police who found out he had been awake until the wee hours talking to a woman he'd met online. He was found guilty of the same offence, but the sentence given depends on both aggravation and mitigation, and the harm caused.

The aggravating factors in the Sandilands crash are:
- the ease of extricating the vehicle from an increasingly unsafe driving situation (as he was nodding off) by simply applying the brake on an open stretch of track with no pedestrians,
- More than one person killed
- A large number of significant injuries
- And that the driver was a seasoned professional used to the style and pattern of work who should have been more able than Average Joe to spot an increasing level of risk with his tiredness.

These are very severe aggravating circumstances.

The mitigating factors are:
- firstly, his obvious remorse at what had happened
- the personal effects the crash had on him and his health
- a previous clean record
- cultural issues around hesitancy to report tiredness of shift
- and a lack of intent or wilful endangerment.

But when you kill seven people by falling asleep, I am sorry to say that you will end up in prison if you do that on a road and it is by sheer chance - and you know it too - that this was on neither a railway nor a road and he escaped legal punishment. The accident was proximally the driver's fault.

I'm afraid your vision of a proper society is unrealistic. You haven't specified what other crimes you have in mind, but I'd bet that these won't involve an involuntarily act which happens as a result of a natural biological process.

It is not an involuntary act. Falling asleep in these circumstances is a voluntary one under the law. A fairy didn't come in and blow sleep dust in his face, knocking him out - he became so tired he fell asleep! When this happens to you it is scary, but you do notice it happening and the courts consider falling asleep a voluntary act whether you or I like it or not.

I don't like it, I'm just being realistic.

Your concept of what is and isn't realistic will be shattered if you ever find yourself unfortunate enough to be being briefed by your solicitor prior to your appearance in court for causing death by careless or dangerous driving because you fell asleep even though you didn't mean it.

God hope that never happens to either of us or anyone we care about.

 

[Domh245]

he became so tired he fell asleep! When this happens to you it is scary, but you do notice it happening and the courts consider falling asleep a voluntary act whether you or I like it or not.

Maybe it's just the way I'm reading it, but you seem to keep trying to present it as if the driver was settling down for the night in the way that most people conventionally recognise falling. That's potentially rather misleading

From the RAIB report:

the RAIB has concluded that the most likely cause was a temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep. It is also possible that, when regaining awareness, the driver became confused about his location and direction of travel (report paragraphs 119 to 179).
S24 The investigation considered whether the driver may have been fatigued. It concluded that the shift pattern followed by the driver should not have caused an increased risk of fatigue on the morning of the accident, above the general fatigue risk factor of very early starts, but that it is possible his sleep pattern could have led to a sleep debt, a situation which can result in microsleeps (report paragraphs 143 to 152).

and quoting one particularly paragraph particularly relevant to the "you notice it happening" line:

151 When people have a sleep debt they can experience deteriorations in performance and alertness. One manifestation of this is a propensity to fall asleep briefly during waking hours, even when driving. These are known as microsleeps and are unintentional periods of sleep lasting anywhere from a fraction of a second to a few minutes. They are often, but not always, characterised by closing of eyes or head nodding actions. People often do not remember having a microsleep

 

[AlterEgo]

Maybe it's just the way I'm reading it, but you seem to keep trying to present it as if the driver was settling down for the night in the way that most people conventionally recognise falling. That's potentially rather misleading

Not in the least misleading. Falling asleep at the controls is a voluntary act in the eyes of the law. Check that out.

Nowhere have I said the driver intentionally went to sleep and I have been very careful about that.

and quoting one particularly paragraph particularly relevant to the "you notice it happening" line:

Failing to remember something is not the same as being unaware of it at the time.

Do you remember the act of falling asleep the night before, when you get up the next morning?

 

[the sniper]

The aggravating factors in the Sandilands crash are:
- the ease of extricating the vehicle from an increasingly unsafe driving situation (as he was nodding off) by simply applying the brake on an open stretch of track with no pedestrians,

There doesn't seem to be any discernible evidence of 'an increasingly unsafe driving situation' or 'nodding off' prior to the straight leading to the crash though, on the download at least. They had controlled the tram entirely normally. To me there is a difference in the language the report uses and only referencing a possible microsleep rather than talking about them simply drifting off to sleep. They weren't asleep leading up to the crash, because they were still making small alterations on the traction/brake controller.

 

[Dai Corner]

Falling asleep at the controls is a voluntary act in the eyes of the law.

What about a "temporary loss of awareness of the driving task during a period of low workload"?

 

[AlterEgo]

What about a "temporary loss of awareness of the driving task during a period of low workload"?

Ask a jury what they think that's shorthand for.

There doesn't seem to be any discernible evidence of 'an increasingly unsafe driving situation' or 'nodding off' prior to the straight leading to the crash though, on the download at least. They had controlled the tram entirely normally. To me there is a difference in the language the report uses and only referencing a possible microsleep rather than talking about them simply drifting off to sleep. They weren't asleep leading up to the crash, because they were still making small alterations on the traction/brake controller.

I'm referring to the driver's own sense of tiredness. People who fall asleep driving cars (microsleep or not) control the car until the point they become unfit. The onset of microsleep is alarming - it has happened to me - but the point is that it doesn't happen out of the blue. It's a combination of circumstances and increasing tiredness which I would describe as an exponential curve of "tiredness".

When you start going over the rumble strips on the motorway and get a huge fright the first thought is "Gosh I am tired, that was awful, how the hell do I stop that from happening again?" not "well I was fine before it happened, totally not tired, it was like a fairy blew sleep dust on me, not my fault at all".

Absent of a medical condition, if you microsleep, it is morally your fault and if you do it on a road or in control of a train you are legally at fault too.

If your job involves driving heavy vehicles full of passengers for which you have been specially trained it is even more incumbent on you not to fall asleep. I accept this is not a popular viewpoint on a part of the forum populated by professional drivers who understandably have justifiable axes to grind with industry management of tiredness, but you could show this thread to the man in the street and 9 out of 10 people would think a man who falls asleep driving a tram and kills people should face legal repercussions.

I am not for one moment suggesting the driver is a bad person, nor did he deliberately or even negligently cause the accident. But, it's a hard old world out there and if you let yourself fall asleep at work and your work happens to be the safe carriage of passengers whom you then kill I, then I'm sorry to say the criminal justice system should deal with you.

 

[Dai Corner]

A jury was asked recently. Their decision led to this thread.

When did a court determine that falling asleep is a voluntary act?

 

[the sniper]

When you start going over the rumble strips on the motorway and get a huge fright the first thought is "Gosh I am tired, that was awful, how the hell do I stop that from happening again?" not "well I was fine before it happened, totally not tired, it was like a fairy blew sleep dust on me, not my fault at all".

But this is the key point, something has happened to prompt the "Gosh I am tired, that was awful" realisation. Here, that realisation hasn't happened. The OTDR will have been studied and seemingly hasn't identified anything out of the ordinary in the way the tram was driven until the breaking point for Sandilands curve, a small (0.3 second) unlit gap between two tunnels*, wasn't correctly responded to.

*Details regarding the tunnel from the report:

Cues to normal braking points in the tunnel

157 The tunnels did not contain distinctive features which would alert drivers during darkness to normal braking points (such as the second gap used by the driver of tram 2551). In the accident context, and depending on the exact nature of the driver’s disorientation, it is possible that had such feature(s) been present, they could have increased the driver’s awareness at an earlier time and/or helped him reconstruct an appropriate mental model including the correct direction of travel.

158 Both the first and second tunnel gaps are around six metres long. A tram travelling at 80 km/h (covering 22 metres each second), the maximum permitted speed through the tunnels and the approximate speed of tram 2551 on the day of the accident, will pass through each gap in about 0.3 seconds. The gaps are not clearly distinguishable at night because they are not clearly illuminated by the tunnel lighting and the light spacing does not change significantly in the vicinity of them. During the hours of darkness the three parts of Sandilands tunnels appear to a tram driver as a continuous tunnel, except for an increase in illumination at each end. The only visual indication of the gaps in the dark are short lengths of white fencing on the left-hand side of the tracks at each gap. The gaps are clearly apparent during daytime due to daylight filtering through them.

159 Some tram drivers said they used a noise as the tram passed over a rail joint near the second gap as a prompt to start braking. The driver of tram 2551 stated he was not aware of such a noise from the track at that location and so was not listening out for it as a cue to start braking.

160 Sound level testing commissioned by the RAIB and undertaken by TRL included an assessment of sound levels recorded in the driving cab of a tram as it transited the tunnel. There were no discernible changes in sound levels measured as the tram passed the tunnel gaps. Therefore, the sound levels do not provide a reliable cue that the tram is passing a gap in the tunnels.

161 Recognition of the tunnel gaps would only be a reliable cue to the need for a brake application for Sandilands south curve if the two gaps could be distinguished. There are no distinct visual features to differentiate between the first and second gaps in daytime or in darkness, although in daylight with clear weather conditions, the tram line from Addiscombe can be seen more clearly from the second tunnel gap, providing a cue as to which direction the tram is travelling. It is possible that a distinctive feature at, or near, the second tunnel gap would have alerted the driver of tram 2551 to his position and thus the need to apply the tram brakes.

162 The difficulty in differentiating between the two gaps has resulted in at least one other driver becoming confused and believing that they were passing the first gap when they were actually at the second gap. This led to a serious overspeed incident on 31 October 2016 (paragraph 180).

 

[AlterEgo]

A jury was asked recently. Their decision led to this thread.

When did a court determine that falling asleep is a voluntary act?

No, they were not asked about criminal charges. The jury was asked to decide the outcome of an inquest. That is very different.

Kay v Butterworth is case law in England:

Held: He should have been convicted of both offences and a direction for remission was made. A man who became unconscious whilst driving due to the onset of a sudden illness should not be made liable at criminal law, however in this case: ‘it was his business to keep awake. If drowsiness overtook him while driving, he should stop and wait until he recovered himself and became fully awake the driver must have known that drowsiness was overtaking him. The case was too clear for argument.’

and a more recent case in Scotland literally held that the act was voluntary:

Judges in the Criminal Appeal Court ruled that in the absence of special circumstances the act of falling asleep is a “voluntary act” and that a jury is entitled to infer that a driver is aware that that they are about to fall asleep and “ignored the obvious dangers” of doing so.

Special circumstances there would be something like insane automatism or a sudden onset medical condition, not "there wasn't a chevron or a special machine to rattle my seat to keep me awake".

You will not find a case of a driver who purely and simply fell asleep, or was otherwise proven to be inattentive, being found innocent of a charge of death by careless driving. if you do find one, I should be glad to see it.

It is, purely and simply, your responsibility as a vehicle driver to stay awake.

But this is the key point, something has happened to prompt the "Gosh I am tired, that was awful" realisation. Here, that realisation hasn't happened.

We know! That's why I am saying the company ought to be held liable too!

This does not exonerate the driver however. It is possible for both to be liable. The driver fell asleep at the controls, the company failed to minimise the consequences of that happening. I don't see why that is hard to process?

 

[Dai Corner]

No, they were not asked about criminal charges. The jury was asked to decide the outcome of an inquest. That is very different.

Shouldn't the inquest have returned a verdict of unlawful killing if it was thought a criminal act was involved?

 

[AlterEgo]

Shouldn't the inquest have returned a verdict of unlawful killing if it was thought a criminal act was involved?

Have you not been following this thread?

 

[the sniper]

We know! That's why I am saying the company ought to be held liable too!

This does not exonerate the driver however. It is possible for both to be liable. The driver fell asleep at the controls, the company failed to minimise the consequences of that happening. I don't see why that is hard to process?

Maybe I've completely misunderstood the wording of the report, but you seem to be rather more committed to the idea that they fell asleep and that was that, than the report's "the most likely cause was a
temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

"Temporary loss of awareness", "possibly" and "microsleep" seems to have become 'beyond all reasonable doubt, they were asleep'.

 

[Dai Corner]

Maybe I've completely misunderstood the wording of the report, but you seem to be rather more committed to the idea that they fell asleep and that was that, than the report's "the most likely cause was a
temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

"Temporary loss of awareness", "possibly" and "microsleep" seems to have become 'beyond all reasonable doubt, they were asleep'.

Indeed.

When I asked @AlterEgo for a citation about temporary loss of awareness he gave one about falling asleep.

 

[AlterEgo]

Maybe I've completely misunderstood the wording of the report, but you seem to be rather more committed to the idea that they fell asleep and that was that, than the report's "the most likely cause was a
temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

"Temporary loss of awareness", "possibly" and "microsleep" seems to have become 'beyond all reasonable doubt, they were asleep'.

A microsleep is "asleep".

Either way, none of the driver's actions or inactions would stand up in court if they were on a charge of death by careless or dangerous driving, which is where we'd be. If he's not asleep, and not paying attention otherwise, and doesn't have a medical condition which he has had six years to bring to light, then what is he? Being asleep is the least cynical of all explanations. He doesn't have a defence.

As per CPS, who have had to chance not only to look at the RAIB report but had two more years to collect further evidence probably including interviews under caution with the driver:

By far the most likely explanation of what happened in this case is that the driver fell asleep, or into a microsleep (a period of unintended, light sleep usually lasting for a few seconds) shortly before derailment.

I don't understand the willingness to dance on the head of a pin here. We know the reason the driver isn't in court is because of pure technicality; the CPS basically said so. Yet here we are, with safety critical staff trying to effectively exonerate the driver. Yes, it is important to fully understand what happened so lessons can be learned but several posters here seem quite content with the defeating of justice because of a hole in the law about what is and isn't a railway, a road or a public place and that we don't have tram-specific offences here.

 

[seagull]

Perhaps you don't understand as you have not worked in an industry in a role in which fatigue is unfortunately part of life. Every professional driver I've ever spoken to about the subject of micro sleeps has admitted it has happened, to some more than others.
In some cases it indeed is possible to declare oneself unfit for duty and get relieved, in other cases it's so sudden in onset that it's impossible, but can often cause enough of a jolt, mentally speaking, that full wakefulness is attained thereafter.

 

[AlterEgo]

Indeed.

When I asked @AlterEgo for a citation about temporary loss of awareness he gave one about falling asleep.

No I did not, I asked you what you think a jury would understand by that statement. How do you think a jury would interpret the driver's excuse of "I was temporarily unaware of my surroundings" (having booked on before 5am and driven through a dark suburb and a dark tunnel).

What you are missing is that the RAIB deals strictly with causes and recommendations and cannot assign blame. It cannot call things to be utterly certain in a report where criminal proceedings were live (as they were, until 2019). There is no 100% certainly he was asleep as far as the RAIB report goes. But a jury is going to be asked whether the driver caused the accident because he was asleep or otherwise inattentive "beyond reasonable doubt", and there is nothing whatsoever that has come to light that would defend the driver from the criminal liability he has in that respect. The only defence against it is essentially insanity or an unknown and sudden medical episode which the RAIB said there was absolutely no evidence for.

I'm not bothered much about dancing on the head of a pin - this whole discussion is because it's foul that the driver escaped prosecution. It is foul; it stinks.

Perhaps you don't understand as you have not worked in an industry in a role in which fatigue is unfortunately part of life. Every professional driver I've ever spoken to about the subject of micro sleeps has admitted it has happened, to some more than others.
In some cases it indeed is possible to declare oneself unfit for duty and get relieved, in other cases it's so sudden in onset that it's impossible, but can often cause enough of a jolt, mentally speaking, that full wakefulness is attained thereafter.

I have, thank you. I've worked nightshifts in warehouses, and in care homes lifting and moving vulnerable people; the latter is a place you can quite easily kill someone if you're tired too.

I very much understand the need to be personally responsible about your own fatigue and I totally get that stopping the job isn't always easy (and believe me, as a minimum wage care assistant in the past, I know all about that), but that is a non-sequitur when talking about what some posters think is the evasion of criminal liability for mistakes you make when you are tired.

You are responsible for mistakes you make when you are tired. That is all there is to it from the criminal side.

 

[the sniper]

No I did not, I asked you what you think a jury would understand by that statement. How do you think a jury would interpret the driver's excuse of "I was temporarily unaware of my surroundings" (having booked on before 5am and driven through a dark suburb and a dark tunnel).

I don't really understand how people can be so naive about how this works. I'm not bothered much about dancing on the head of a pin - this whole discussion is because it's foul that the driver escaped prosecution. It is foul; it stinks.

So if a jury were to be told: "the most likely cause was a temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

You're saying that'd mean, "the most likely cause was temporarily falling asleep during a period of low workload, which possibly caused him to microsleep." How do the two statements/interpretations work together?

The report would seem to differentiate the two. The first part can't mean they were asleep and possibly cause him to microsleep, which you're saying is just asleep. And there's no "possibly" about it.

The only defence against it is essentially insanity or an unknown and sudden medical episode which the RAIB said there was absolutely no evidence for.

To be accurate.

177 Although highly unlikely, an undetected medical reason for the driver’s loss of
awareness, and disorientation, cannot be discounted. Four passengers on the
tram told police officers that the driver had indicated that he had ‘blacked out’ but
there is evidence that this was caused by the accident.

A microsleep is "asleep".

Either way, none of the driver's actions or inactions would stand up in court if they were on a charge of death by careless or dangerous driving, which is where we'd be. If he's not asleep, and not paying attention otherwise, and doesn't have a medical conditon which he has had six years to bring to light, then what is he? Being asleep is the least cynical of all explanations. He doesn't have a defence.

I don't understand the willingness to dance on the head of a pin here. We know the reason the driver isn't in court is because of pure technicality; the CPS basically said so. Yet here we are, with safety critical staff trying to effectively exonerate the driver.

They should have just said asleep really then if it's all the same, even if a microsleep can be triggered in the absence of fatigue, it's just random tough luck, straight to jail... Though seemingly he was awake at least 8 seconds prior to the crash, given that he made a number of alterations on the throttle/brake control between that point and the crash, but the situational awareness and circumstances leading to that are also irrelevant apparently, straight to jail...

I've only gone by the findings of the report. I haven't appreciated that the details are just irrelevant fluff when dishing out jail sentences.

 

[Wolfie]

Isn't the issue less that the driver isn't in prison (I would tend to agree that I'm not entirely sure it would achieve much but then it does rather seem like a slippery slope to advance the arguments given above) but more that he hasn't been put in trial for the results of his actions?

It would seem to me that a prosecution for involuntary manslaughter on the basis of either recklessness or more likely negligence would at least be a sustainable charge with prosecution and defence then able to put to a jury the various arguments which are being made here and then leaving them to determine whether they are sure of the defendants guilt (which is a high bar to pass). That would seem to me to allow for justice to both be done and to be seen to be done even if the outcome is that the driver is found not guilty. Rather than the simple platitude that the driver must (and I'm certain he must) feel horrible and no doubt spends much of his life wishing he had been able to do things just ever so slightly differently that morning meaning that there's no point even considering whether a prosecution is warranted.

Seven people are still dead. I don't necessarily advocate that seven people are dead and therefore someone should be in jail as a result but I do feel that when seven people are killed it would be a remarkable outcome if no-one is even prosecuted.

The CPS have a standard test that they apply to all prosecutions. Why exactly should this test not have been applied in the case of this driver? Had such an attitude been taken an application for a judicial review of the decision to prosecute would have been highly likely.

 

[AlterEgo]

So if a jury were to be told: "the most likely cause was a temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

You're saying that'd mean, "the most likely cause was temporarily being asleep during a period of low workload, which possibly caused him to microsleep." How do the two statement/interpretations work together?

The jury, if presented with the excuse of "the most likely cause was a temporary loss of awareness of the driving task during a period of low workload, which possibly caused him to microsleep."

...would find him guilty if this happened on a road or in a public place. Nailed on careless or dangerous driving. Why dance on the head of a pin about it? You think a microsleep is better than "asleep?"

the juror's logic, when presented with that statement, which is NOT a defence against a charge of death by careless or dangerous driving (!), against what they must consider, is as follows:

The offence is complete if:

Your standard of driving has fallen far below the standard that would be expected of a careful and competent driver AND that driving was the cause of the death of another person.

Yes - the tram was going abundantly too fast into the sharpest bend on the route, indisputable (it does NOT have to be intentional!)
Yes - the driving of the tram caused at least one person to die

Valid defences:

Mechanical failure - that the tram did not operate as expected (for example a brake fault or a stuck throttle) - conclusively NOT applicable here
Insanity which can include medical episodes like heart attacks - no evidence for it and has not been advances as a cause in six years
The driving was simply not careless or dangerous - definitely not arguable in this case, the tram was way over the speed limit and was obviously going to cause a severe accident.

This is not a crime of intent or wilful damage. You do not have to set out, or intend to drive in that manner. The offence is complete if merely two conditions are met. But...you have to do it on a road or a public place. Luckily for the driver, it happened on a segregated right of way and he fell between all the laws we have which would normally punish this standard of driving.

The report would seem to differentiate the two. The first part can't mean they were asleep and possibly cause him to microsleep, which you're saying is just asleep. And there's no "possibly" about it.

There is no real difference between being "asleep" and "microsleep", which is pure semantics, because in this case we must look at how the driver drove the tram, which, in the point after he allowed himself to become unaware, was at the very least careless and probably dangerous under the law, and then resulted in multiple deaths. The driver allowed his driving to deteriorate to the point where be became unaware of the hazard ahead - a hazard he had approached hundreds of times before. I am sure you are not so naive to think that if you do that in a car, you...don't go to court?

If you allow yourself to doze off, microsleep, daydream, get dazzled by the white lines on the road, turn around to sort out crying kids, bend down to pick up a coffee you spilled...and crash your car as a result...you go to court, and will be convicted. This is not hard to understand. The driver in our case of the tram would have absolutely no defence if he was up on a charge.

Call it what you like, it doesn't change the premise of the argument, which is that the driver has no defence if this happens somewhere a careless or dangerous driving charge would apply.

They should have just said asleep really then if it's all the same, even if a microsleep can be triggered in the absence of fatigue, it's just random tough luck, straight to jail... Though seemingly he was awake at least 8 seconds prior to the crash, given that he made a number of alterations on the throttle/brake control between that point and the crash, but the situational awareness and circumstances leading to that also irrelevant apparently, straight to jail...

This is blissfully naive to think you can microsleep and not be criminally liable. You are inviting people to believe that the driver was the victim of something so sudden and severe he was unable to do anything about it; a hapless victim of consequence whom the justice system should just shrug at. Effectively, this is the insanity defence, which holds no water whatsoever as we have already seen.

I've only gone by the findings of the report. I haven't appreciated that the details are just irrelevant fluff when dishing out jail sentences.

If you "temporarily lose awareness" and crash your car you are....still liable for prosecution under careless or dangerous driving. This is obvious, no?

Try looking up some death by dangerous driving cases where people fell asleep, or were even distracted. What you're arguing is not a defence!

The CPS have a standard test that they apply to all prosecutions. Why exactly should this test not have been applied in the case of this driver? Had such an attitude been taken an application for a judicial review of the decision to prosecute would have been highly likely.

I don't think there is any reasonable prospect for a manslaughter conviction. As the CPS explain in their press release, the test for this is pretty high.

Much as I have been banging on in this thread about the driver and his responsibility for the accident, I don't think this is a manslaughter case and that would be a very unsatisfactory outcome.