Who would be liable if thieves are injured or killed when stealing from railway premises?

[Western 52]

Who would be liable if thieves are injured or killed when stealing from railway premises? Especially if they have broken fencing to deliberately gain access.

 

[Krokodil]

Who would be liable if thieves are injured or killed when stealing from railway premises? Especially if they have broken fencing to deliberately gain access.

If the railway failed to keep fences in good repair then it could find itself liable.

 

[Tom125]

If the railway failed to keep fences in good repair then it could find itself liable.

Exactly! What a nonsense our society has become

 

[Northerngirl]

 

[Dai Corner]

Exactly! What a nonsense our society has become

For example

£135,000 fine for Network Rail following ORR investigation into electrocution | Office of Rail and Road

Following an Office of Rail and Road (ORR) investigation, Scotland’s Crown Office and Procurator Fiscal Service (COPFS) has prosecuted Network Rail, who were fined £135,000 by Edinburgh Sheriff Court, for failing to maintain and improve the railway fencing near Musselburgh, East Lothian which...

www.orr.gov.uk

Network Rail were fined for the safety breach on 15 December 2020, after pleading guilty to an offence under health and safety law.

The incident happened on Friday 19 August 2016 on the railway track near Queen Margaret University, Musselburgh. A group of teenagers entered the gap in the railway fence before the 13-year-old climbed onto the roof of a tank wagon on a freight train that was stopped at a set of signals.

He came close to the 25,000-volt overhead cable and received an electric shock that caused serious burns.

ORR’s resulting investigation revealed that although there was clear evidence of trespass and graffiti in the area, the fence provided by Network Rail was substandard and poorly maintained, such that unauthorised access to the railway was straightforward.

Access is straightforward via station platforms regardless of the state of the lineside fencing, of course, and thieves will take suitable tools to cut through any fence anyway.

 

[Topological]

Worth saying that a thief cutting the fence with tools would leave a different gap in the fence compared to the results of poor maintenance. I am sure Network Rail could prove good maintenance in the case that the gap was created by individuals seeking access to the railway.

There is a muddying of the waters by the fact that previously human created gaps need filling, but here again it should be possible to prove a sensible maintenance routine to inspect and repair such gaps.

It worries me somewhat that we seem to have decided that organisations like Network Rail are being unfairly penalised. Yes, it would be better if the means of access was not brought into the crime of theft / vandalism of property within the boundary. But, that is a wider societal question on what can be considered mitigation for the intention to commit the crime (criminal law requires intention for action and action, mens rea and actus reus).

 

[WesternBiker]

Worth saying that a thief cutting the fence with tools would leave a different gap in the fence compared to the results of poor maintenance. I am sure Network Rail could prove good maintenance in the case that the gap was created by individuals seeking access to the railway.

There is a muddying of the waters by the fact that previously human created gaps need filling, but here again it should be possible to prove a sensible maintenance routine to inspect and repair such gaps.

It worries me somewhat that we seem to have decided that organisations like Network Rail are being unfairly penalised. Yes, it would be better if the means of access was not brought into the crime of theft / vandalism of property within the boundary. But, that is a wider societal question on what can be considered mitigation for the intention to commit the crime (criminal law requires intention for action and action, mens rea and actus reus).

Indeed, and it seems inconsistent with railway practice in Europe where many railway lines are not fenced at all, so the offence of not having a well maintained fence simply doesn't come into it.

 

[stuu]

Indeed, and it seems inconsistent with railway practice in Europe where many railway lines are not fenced at all, so the offence of not having a well maintained fence simply doesn't come into it.

It's down to differences in the legal system. In the UK it is the responsibility of the landowner to keep people out. In many other countries it is the responsibility of people not to go where they shouldn't. Probably dates back to the enclosure acts or something even more archaic

 

[tspaul26]

Probably dates back to the enclosure acts or something even more archaic

1972

 

[furnessvale]

There is a muddying of the waters by the fact that previously human created gaps need filling, but here again it should be possible to prove a sensible maintenance routine to inspect and repair such gaps.

I once had a case where a child was killed on the railway. The fence at that location was a known hot spot for being cut. Of course the fence was quickly repaired, but on this occasion observations were maintained on the fence.

Within two days, the parents of the dead child were caught cutting the fence to gain access to the social club across the line.

When faced with that gene pool, what can the railways or anyone else do?

 

[matacaster]

An up to date risk assessment might assist railway in defending against intruder claims. However, trespassers who cut hole in fence etc present a big problem. I guess it's down to how often things like fences are checked (reasonable interval) and whether there have been recent reports from third parties of dangerous hole in fence etc.
I do agree it's all bonkers if someone is intending to commit a crime ... Really should be their own fault.

 

[greyman42]

For example

Was there not a similar incident at Tyne Yard?

 

[EZJ]

There was a case in 2009 I believe where a young boy was killed at the then mainly disused Allerton depot by climbing on a freight wagon and the overheads arced and killed him. I'm fairly sure his family claimed and received some sort of compensation.

 

[work-traveller]

It's down to differences in the legal system. In the UK it is the responsibility of the landowner to keep people out. In many other countries it is the responsibility of people not to go where they shouldn't. Probably dates back to the enclosure acts or something even more archaic

Indeed. The effect is that the UK legal system starts off by assuming that every intruder is a helpless innocent and shouldn't have to take responsibility for their own actions, whilst the continental legal system starts off by assuming that every intruder is responsible for their actions from the moment they enter a place that they self evidently shouldnt be in. People of average intelligence don't eed any fence to know that they shouldn't be on a railway line, factory roof etc.

 

[DarloRich]

Posters ought to look up occupiers liability and contributory negligence in English law before commenting. The supporting case law goes back many years.

 

[furnessvale]

Posters ought to look up occupiers liability and contributory negligence in English law before commenting. The supporting case law goes back many years.

I think many, if not most on this furum broadly know about English law in this area.

I also think that many, including myself, believe the law is an ass and needs changing.

 

[Parham Wood]

There was a case in 2009 I believe where a young boy was killed at the then mainly disused Allerton depot by climbing on a freight wagon and the overheads arced and killed him. I'm fairly sure his family claimed and received some sort of compensation.

I understand the fence was repeatedly cut after repair. Network Rail either did not check frequently enough or delayed the repair. They were found guilty of failing to maintain the fence promptly as the court ruled they were aware of the frequent attacks on the fence and should have adjusted their inspection/repair process accordingly if I recall correctly. They were heavily fined.

 

[domcoop7]

I think many, if not most on this furum broadly know about English law in this area.

I also think that many, including myself, believe the law is an ass and needs changing.

Given that one of the posts above happened in Scotland, and given the reference to "UK" law, I'd venture that knowledge of English law isn't perhaps as high as you believe.

Anyway, to cut a long story short, if a thief was injured or killed when stealing from railway premises, the railway would not be liable if the injury was in the course of the stealing. Two Latin expressions are relevant here volenti non fit injuria (a volunteer is not injured) and ex turpi causa non oritur actio (from a dishonourable cause there is no action).

A grey area may be if the injury was not connected with the stealing. E.g. someone shoplifts from one of the wonderful Select Service Partnership establishments, and runs out of the station, trips on a pothole in the station carpark and impales themselves on a dangerous pole left exposed on the pathway. I suspect the insurer involved would defend it, but the shoplifter would argue the injury had nothing to do with their crime, and could have happened to anyone. Whether the claimant would win or not would pretty much depend on the judge hearing it - there's arguments both ways. To use a more mundane, and non-railway example, I've argued claims for compensation when there's been a road accident, but the driver didn't have a valid MOT test. The insurers' argument goes "it's illegal to drive without an MOT" / "therefore the journey the driver was taking was an illegal act and shouldn't have happened in the first place because you shouldn't have driven" / "therefore the ex turpi causa rule applies and you can't claim for someone slamming into you". There are cases where different judges have found different ways when that argument has been run, particularly with claims for hire cars whilst yours gets repaired - on the basis that you didn't have a car you could legally drive anyway so you won't lose out if you don't get a hire car.

For ex turpi causa it has to be a serious criminal act, though. If you put your feet on a bench on the platform (a breach of Railway Byelaws), and the bench has a defect so a nail goes through your foot, the railway are not going to be able to argue their way out of that one.

So what of teenagers trespassing? Again, that is not going to be serious enough criminality in most cases to invoke the ex turpi causa rule. Even though it may be a criminal act due to the Railway Byelaws, in most cases in England and Wales trespass is not a criminal offence at all.

So that leads to the Occupiers Liability Acts. Every occupier of land has a Common Duty of Care to keep visitors safe. The extent of that duty depends on what is reasonable. In a 1922 case (from Scotland, ironically given that it has a different legal system) an occupier of land (the council) was held liable when children ate poisonous berries (in the park) because they should have realised that children are children and do silly things and the berries may be appealing to children.

The Occupiers Liability Act 1984 applies to trespassers and to succeed in a claim the person claiming needs to show that the defendant (i.e. the railway) knew of the risk and that whatever it was that caused injury was inherently dangerous due to its state or condition. So kids who broke into a school grounds and jumped on the roof and one fell through a skylight succeeded in showing the school knew of the risk, but failed to show the skylight was dangerous due to its condition - it was inspected and maintained and was fine, it just wasn't designed to hold the weight of a teenager jumping on it.

With stuff like OLE equipment, warning signs would usually be enough to stop the railway being liable, and these signs are usually attached to the OLE supports. Third rail is a tricky one, I'm not sure what the court would make of that.

Empty or semi-derelict buildings on the other hand usually are dangerous due to their condition, and kids have always been tempted to go into such areas. If you have such a building, it is your obligation to fence it off and put warning signs around it. Ultimately you have to either repair the building or demolish it.

Oddly enough, I imagine this is less of a problem today than it was in the past. When I was a child in the 1980s, we were let out by our parents and did what we wanted. As young boys we did on occasion go into abandoned warehouses and building sites, etc., which were usually left unprotected. Nowadays, most such sites are heavily fenced off and guarded and kids are sat at home 24/7 on Snapchat and TikTok, so I expect incidents are less common.

 

[furnessvale]

Given that one of the posts above happened in Scotland, and given the reference to "UK" law, I'd venture that knowledge of English law isn't perhaps as high as you believe.

Anyway, to cut a long story short, if a thief was injured or killed when stealing from railway premises, the railway would not be liable if the injury was in the course of the stealing. Two Latin expressions are relevant here volenti non fit injuria (a volunteer is not injured) and ex turpi causa non oritur actio (from a dishonourable cause there is no action).

A grey area may be if the injury was not connected with the stealing. E.g. someone shoplifts from one of the wonderful Select Service Partnership establishments, and runs out of the station, trips on a pothole in the station carpark and impales themselves on a dangerous pole left exposed on the pathway. I suspect the insurer involved would defend it, but the shoplifter would argue the injury had nothing to do with their crime, and could have happened to anyone. Whether the claimant would win or not would pretty much depend on the judge hearing it - there's arguments both ways. To use a more mundane, and non-railway example, I've argued claims for compensation when there's been a road accident, but the driver didn't have a valid MOT test. The insurers' argument goes "it's illegal to drive without an MOT" / "therefore the journey the driver was taking was an illegal act and shouldn't have happened in the first place because you shouldn't have driven" / "therefore the ex turpi causa rule applies and you can't claim for someone slamming into you". There are cases where different judges have found different ways when that argument has been run, particularly with claims for hire cars whilst yours gets repaired - on the basis that you didn't have a car you could legally drive anyway so you won't lose out if you don't get a hire car.

For ex turpi causa it has to be a serious criminal act, though. If you put your feet on a bench on the platform (a breach of Railway Byelaws), and the bench has a defect so a nail goes through your foot, the railway are not going to be able to argue their way out of that one.

So what of teenagers trespassing? Again, that is not going to be serious enough criminality in most cases to invoke the ex turpi causa rule. Even though it may be a criminal act due to the Railway Byelaws, in most cases in England and Wales trespass is not a criminal offence at all.

So that leads to the Occupiers Liability Acts. Every occupier of land has a Common Duty of Care to keep visitors safe. The extent of that duty depends on what is reasonable. In a 1922 case (from Scotland, ironically given that it has a different legal system) an occupier of land (the council) was held liable when children ate poisonous berries (in the park) because they should have realised that children are children and do silly things and the berries may be appealing to children.

The Occupiers Liability Act 1984 applies to trespassers and to succeed in a claim the person claiming needs to show that the defendant (i.e. the railway) knew of the risk and that whatever it was that caused injury was inherently dangerous due to its state or condition. So kids who broke into a school grounds and jumped on the roof and one fell through a skylight succeeded in showing the school knew of the risk, but failed to show the skylight was dangerous due to its condition - it was inspected and maintained and was fine, it just wasn't designed to hold the weight of a teenager jumping on it.

With stuff like OLE equipment, warning signs would usually be enough to stop the railway being liable, and these signs are usually attached to the OLE supports. Third rail is a tricky one, I'm not sure what the court would make of that.

Empty or semi-derelict buildings on the other hand usually are dangerous due to their condition, and kids have always been tempted to go into such areas. If you have such a building, it is your obligation to fence it off and put warning signs around it. Ultimately you have to either repair the building or demolish it.

Oddly enough, I imagine this is less of a problem today than it was in the past. When I was a child in the 1980s, we were let out by our parents and did what we wanted. As young boys we did on occasion go into abandoned warehouses and building sites, etc., which were usually left unprotected. Nowadays, most such sites are heavily fenced off and guarded and kids are sat at home 24/7 on Snapchat and TikTok, so I expect incidents are less common.

Thanks for confirming that the second sentence of my post is true.