Safety at level crossings - Transport Committee Contents


5  The aftermath of accidents

Network Rail's treatment of families
Box 5: Bayles and Wylies crossing, 2008

Bayles and Wylies crossing near Hucknall, Nottinghamshire, November 2008: This crossing, which had no warning systems, was unusual because it was over three lines: a disused colliery line, the Robin Hood railway line and the Nottingham Express Transit tram line. Both a tram and a train were travelling towards the crossing in the same direction. The tram had much brighter lights and an illuminated saloon. However the train was travelling at a much higher speed and had caught up with the tram. Mrs Hoggart and her grandson were struck by the train. The RAIB investigation found that the difference in illumination may have contributed to the accident.[116] They also found a number of failings attributable to Network Rail, including a lack of crossing illumination; signalling equipment that reduced visibility; and not appreciating that the crossing in darkness presents different risk to users, since all inspections had been in daytime. The investigation also found significant differences in sighting distances in Network Rail inspections, ranging from 350 to 600 metres, with no process for resolving these differences. The crossing had seen an increase in usage following the construction of an adjacent housing estate. There was another fatality at the crossing in November 2012.[117] The crossing was closed in February 2013 and replaced with a footbridge in October 2013.

57. On 21 October 2013 we heard harrowing evidence from family members of those tragically killed or seriously injured on level crossings. After the meeting a number of other families contacted us to raise their concerns. Many relatives told us similar stories, of poor treatment by Network Rail and of discovering risk assessments showing that action was needed to improve crossing safety that had not been acted upon. For example, Laurence Hoggart, whose wife and young grandson were killed in November 2008 at Bayles and Wylies crossing, near Hucknall, Nottinghamshire,said:

    I think that Network Rail have treated me badly. They wrote just one letter of apology. My solicitors discovered that the crossing was seen to be unsafe by Railtrack in 2000 and their advisers said that a bridge should be built. That was eight years before they died. [...] After Jean and Mikey died, Network Rail straightened the dog leg and put lighting there, but this was not enough. I said when they died that a bridge needed to be put there. Further deaths were unnecessary. The work should have been done after one death, not after five. Network Rail did not even write or ring to tell me that a bridge was being built. They did not tell me when the new bridge opening ceremony was. I was not invited to the opening ceremony."[118]

58. Robin Gisby, Network Rail's Managing Director of Network Operations, admitted that management was negligent at the time of the Elsenham accident, which he went on to describe as "a watershed".[119] We challenged Mr Gisby to explain why Network Rail had treated bereaved families so badly:

    The state our company was in over the risk assessment, and, to be honest, the subsequent behaviour of the company towards the families involved, were quite appalling. I think we have changed from that. I pay tribute to Tina Hughes and others who have helped get us there. She has been magnificent in helping us in the last two or three years. I believe that the company is in a much better place, but there is still a long way to go. Crossing the railway is dangerous, whether it is on foot or by vehicle. We are doing all we can to minimise those risks and make it as safe as possible. [...] How organisations such as ours would respond depends on the circumstance of the incident in which, tragically, somebody was killed and on the personal wishes of the bereaved themselves, but I would like to think that in such very difficult circumstances we would not behave as we clearly did after the Elsenham incident and others that are covered in other witnesses' evidence.[120]

Network Rail has admitted that its management of level crossings has previously been negligent and that its behaviour towards bereaved families has been appalling. In 2012 Sir David Higgins, then Chief Executive of Network Rail, rightly apologised for the mistakes which contributed to the deaths of Olivia Bazlinton and Charlotte Thompson at Elsenham. Network Rail now owes each of the families it has let down a full, public apology, both for the mistakes which contributed to accidental deaths at level crossings and the subsequent treatment of bereaved families. We call on its chief executive to provide this.

59. Chris Bazlinton described Network Rail's failure to produce key documents during the inquest into his daughter's death as a "conspiracy of silence".[121] Not only were Part B of the level crossing risk assessment and the "Hudd memo", written in 2001 by an inspector concerned about the Elsenham crossing, withheld from the inquest but Network Rail's lawyers successfully persuaded the coroner to exclude from the evidence a report by the Health and Safety Executive that identified deficiencies in Network Rail's risk assessment methodology.[122] Robin Gisby said "I do not know why those things were not produced. They certainly should have been; they were somewhere within our organisation, and we have investigated why they did not come out until much later in the day, as have other organisations".However, he did not disclose the findings of those investigations.[123] Mr Bazlinton subsequently wrote to us to say that this was the first time anyone has admitted that such an investigation had been held.[124]

60. In relation to the Elsenham tragedy, Network Rail should disclose to the bereaved families the findings of all investigations into why 'Part B' of the risk assessment, the 'Hudd Memo' and the Health and Safety Executive report on Network Rail's risk assessment methodology were not initially disclosed.

Whistleblowing

61. The existence of both Part B of the Elsenham risk assessment and the 'Hudd memo' only came to light when disclosed in 2010 by a Network Rail employee. The whistleblower initially raised concerns internally, in accordance with Acas guidance.[125]It is unlikely that Network Rail would have been prosecuted in relation to the Elsenham tragedy were it not for the actions of a whistleblower. The knock-on effects of the successful prosecution encouraged Network Rail to take level crossing safety much more seriously.

62. The rail industry has a confidential reporting scheme known as CIRAS, Confidential Incident Reporting and Analysis System, which is operated by the RSSB.[126] CIRAS is not a "prescribed person" under the Public Interest Disclosure Act 1998 and therefore the full protections of employment law may not apply to whistleblowers who report their concerns to CIRAS.[127] The Department for Business, Innovation and Skills is currently analysing responses to a consultation on this matter and the charity Public Concern at Work has suggested that "prescribed functions" could be specified under an amended Act.[128]The Government should consider adding confidential reporting schemes such as CIRAS to the list of prescribed persons and bodies under the Public Interest Disclosure Act 1998.

Senior accountability

Box 6: Beccles, 2010

Beccles, Suffolk, July 2010: As Richard Wright drove his vehicle across a user-worked crossing on his farm, it was struck by a train. Mr Wright was injured and his 10-year-old grandson was thrown from the vehicle, sustaining life-changing injuries. For many years prior to the accident, Mr Wright had been asking Network Rail and its predecessor, Railtrack, to fit a crossing telephone because there were no warning systems. This was finally done in 2011, after the accident. ORR established that the crash was caused by poor visibility when people were crossing from the south side and successfully prosecuted Network Rail, which was fined £500,000 in June 2013. Network Rail appealed against the decision but in January 2014 the fine was upheld.

63. Handing down judgement in Network Rail's unsuccessful appeal against the fine in the Beccles case in January 2014, the Court of Appeal said:[129]

    If ... a bonus incentivises an executive director to perform better, the prospect of a significant reduction of a bonus will incentivise the executive directors on the board of companies such as Network Rail to pay the highest attention to protecting the lives of those who are at real risk from its activities. In short, it will demonstrate to the court the company's efforts, at the level of those ultimately responsible, to address its offending behaviour, to reform and rehabilitate itself and to protect the public.

64. Network Rail's Management Incentive Plan states that no annual or long-term bonus would be payable to an executive director if there was a catastrophic accident for which Network Rail was culpable.[130]Given that Network Rail has recently been held responsible for the serious accident at Beccles in July 2010 we would be very concerned if the Remuneration Committee awarded bonuses to executive directors this year.We recommend that Network Rail clarify the definition of "catastrophic" in its Management Incentive Plan so that it includes life-changing injuries. We call on Ministers to address this issue in discussions about Network Rail's status.

Duty of candour

65. We asked the Law Commission whether railway operators have a general duty of candour in relation to coroners' inquests and, in particular, whether they are required to produce all relevant documentation. Richard Percival, Team Manager for Public Law, said:

    There are some existing reporting obligations. There are general reporting obligations under health and safety law that apply to everybody. There are also some railway-specific ones; you mentioned the CIRAS reporting system, for instance. There is also a duty on railway bodies to report to RAIB any accidents or incidents, but those are the bodies themselves. There are duties on employees to report issues to employers, but I do not think anyone would say those added up to what most people mean by a duty of candour.[131]

66. The Network Rail Code of Business Ethics currently encourages cooperation with regulators but does not go as far as the wide-ranging culture of openness, transparency and candour proposed, in a different context, by the Francis Inquiry into Mid Staffordshire NHS Foundation Trust.[132]

67. We recommend that the Government consider whether Network Rail should be subject to a statutory duty of openness, transparency and candour, analogous to the recommendations of the Francis Inquiry into Mid Staffordshire NHS Foundation Trust. The Office of Rail Regulation should consider whether such a duty can be imposed as a licence condition. Network Rail should amend its internal code of conduct to reflect an expectation that the railway workforce should act with openness, transparency and candour.

Family liaison

68. Families were generally positive about the support provided by British Transport Police family liaison officers.[133] Their role is vital in providing a single and consistent point of contact with the investigation, inquest and bereavement counselling services.[134] These officers perform a difficult role, having to maintain the neutrality of the investigation whilst providing support to the family at a very traumatic time and through a legal process that may last for a year or more.

69. Network Rail must do more to improve its communications with the families of people killed or injured at level crossings. We recommend that Network Rail appoint single points of contact to communicate with affected families via the BTP until all legal proceedings have concluded. If the family so wishes, the Network Rail should then keep the family directly informed of safety upgrades or other positive measures as they are being implemented.

Investigations and inquests

Rail Accident Investigation Branch

70. As at October 2013, the RAIB had started 43 level crossing investigations and published 35 reports, containing 130 recommendations for improving level crossing safety.[135]Carolyn Griffiths, Chief Inspector of Rail Accidents, told us what circumstances would result in an RAIB investigation:

    The criteria are based on a simple decision, which is whether we believe there could be significant safety learning from our investigation. There are some "mandates" from the European directive, but we are still not required to make those mandated investigations if we believe that, at the end of the day, there will not be much to learn in terms of safety. For instance, if somebody has been deliberately putting themselves at risk by playing chicken at a crossing or whatever, it is unlikely we would investigate if we had absolute certainty that that was the case.[136]

In the interests of transparent decision-making, the Rail Accident Investigation Branch should publish its rationale when it decides not to conduct an accident investigation.

Legal support for families

71. Chris Bazlinton told us that the families were not able to afford legal representation during the inquest into the death of his daughter and her friend:

    We faced a bank of lawyers. There were three barristers and two solicitors paid for by the train companies and Network Rail. If we had been able to afford £15,000 or £20,000 to be represented by a barrister, they would probably have had another one, and of course that would have been paid for out of the public purse.[137]

It is deeply regrettable that inquests into deaths at level crossings should be perceived by the bereaved families to be adversarial hearings at which they are disadvantaged because they cannot compete with Network Rail's level of legal representation. Network Rail should consider what is an appropriate level of legal representation taking into account the impact on bereaved families.

72. The Parliamentary Under-Secretary of State for Transport, Stephen Hammond MP, told us that help was available to families from the legal aid budget, depending on individual circumstances.[138] Ministry of Justice guidance states that Legal Help, the advice and assistance level of legal aid, is available for inquests into the death of a member of the individual's family. However, Legal Help covers preparatory work associated with the inquest, not legal representation at the inquest. This is only provided in exceptional circumstances.

73. In some cases Legal Help can fund someone to attend the inquest as a "McKenzie Friend", to offer informal support in Court, provided that the coroner gives permission.[139]We invite the Chief Coroner to consider issuing guidance on whether a 'McKenzie Friend' is generally allowable in the coroner's court to offer support to bereaved relatives. The Government should extend Legal Help to cover representation of bereaved families at inquests.

Media, communications and use of language

74. We are concerned that the word "misuse" is used indiscriminately when referring to level crossing incidents.[140] That word does not differentiate between wilful negligence, such as jumping barriers, and situations that impair human decision-making, such as being unable to see clearly the railway boundary. Network Rail has admitted that level crossings are not always as safe as they can be and most crossings do not provide a warning system or automatic protection.

75. Network Rail accepted that "some of the language used-'misjudgement', 'errors of judgement', 'misuse' and 'abuse'[...] needs tidying up"[141] However, the Minister considered that the term "misuse" remained relevant and covered the majority of accidents:

    Of course, any death is deeply tragic, but all of these deaths happened as a direct result of misuse, either accidental or wilful, by the crossing users themselves; indeed, the latest figures indicate that 90% of the risk factors at level crossings arise from public behaviour.[142]

This takes no account of the fact that the underlying cause of accidents is often attributable to errors in the design or construction of the level crossing, or to the absence of warnings or protection.

76. We recommend that the rail industry, government and Office of Rail Regulation stop using the term "misuse" in relation to accidents at level crossings and instead adopt "deliberate misuse" where the evidence supports this and "accident" where it does not.


116   Double fatality at Bayles & Wylies footpath crossing, Bestwood, Nottingham, 22 November 2008, Rail Accident Investigation Branch, Report 32/2009, November 2009 Back

117   Fatal accident at Bayles & Wylies footpath crossing, Bestwood, Nottingham, 28 November 2012, Rail Accident Investigation Branch, Report 19/2013, September 2013 Back

118   Q5 [Peter Rayner, reading Laurence Hoggart's statement] Back

119   Qq163-164 [Chair and Robin Gisby] Back

120   Qq164-165 [Robin Gisby] Back

121   Q2 [Chris Bazlinton] Back

122   Chris Bazlinton (SLC 012) Back

123   Qq158-162 [Robin Gisby] Back

124   Chris Bazlinton (SLC 044) Back

125   Whistleblowing - Public interest disclosure, Acas Back

126   CIRAS Back

127   Blowing the whistle to a prescribed person: list of prescribed people and bodies, Department for Business, Innovation & Skills, 20 February 2013. Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2013 Back

128   Whistleblowing framework: call for evidence, Department for Business, Innovation and Skills; Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK, Whistleblowing Commission, Public Concern at Work, November 2013 (Paras 97-99 and Recommendation 13) Back

129   R and Sellafield Ltd & R and Network Rail Infrastructure Ltd, [2014] EWCA Crim 49 (para 70-73) Back

130   Management Incentive Plan statement - effective 1 April 2012, Network Rail Back

131   Q60 [Richard Percival] Back

132   Business Ethics - Everyday matters - Code of business ethics, Network Rail (Page 22 - Government and Regulatory Relationships); Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry - Executive summary, HC (2012-13) 947 Back

133   For example, Q12 [Tina Hughes, Chris Bazlinton]; Deborah Scanlon (SLC 035)  Back

134   Family Liaison Officers, British Transport Police Back

135   Rail Accident Investigation Branch (SLC017) para 2 Back

136   Q115 [Carolyn Griffiths] Back

137   Q12 [Chris Bazlinton] Back

138   Q199 [Stephen Hammond MP] Back

139   Lord Chancellor's Exceptional Funding Guidance (Inquests), Ministry of Justice, February 2013 Back

140   For a recent example see Level crossing safety in the spotlight, TRL, 12 February 2014  Back

141   Q167 [Robin Gisby] Back

142   Qq182-183 [Stephen Hammond MP] Back


 
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