5 The aftermath of accidents |
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. 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. 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."
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".
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.
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".
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.
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.
Mr Bazlinton subsequently wrote to us to say that this was the
first time anyone has admitted that such an investigation had
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.
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.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.
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.
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.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.
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:
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.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,
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.
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.
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.
68. Families were generally positive about the support
provided by British Transport Police family liaison officers.
Their role is vital in providing a single and consistent point
of contact with the investigation, inquest and bereavement counselling
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.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
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.
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
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
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.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
Media, communications and use
74. We are concerned that the word "misuse"
is used indiscriminately when referring to level crossing incidents.
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"
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.
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
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
Fatal accident at Bayles & Wylies footpath crossing, Bestwood, Nottingham, 28 November 2012,
Rail Accident Investigation Branch, Report 19/2013, September
Q5 [Peter Rayner, reading Laurence Hoggart's statement] Back
Qq163-164 [Chair and Robin Gisby] Back
Qq164-165 [Robin Gisby] Back
Q2 [Chris Bazlinton] Back
Chris Bazlinton (SLC 012) Back
Qq158-162 [Robin Gisby] Back
Chris Bazlinton (SLC 044) Back
Whistleblowing - Public interest disclosure, Acas Back
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
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
R and Sellafield Ltd & R and Network Rail Infrastructure Ltd,
 EWCA Crim 49 (para 70-73) Back
Management Incentive Plan statement - effective 1 April 2012,
Network Rail Back
Q60 [Richard Percival] Back
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
For example, Q12 [Tina Hughes, Chris Bazlinton]; Deborah Scanlon
(SLC 035) Back
Family Liaison Officers, British Transport Police Back
Rail Accident Investigation Branch (SLC017) para 2 Back
Q115 [Carolyn Griffiths] Back
Q12 [Chris Bazlinton] Back
Q199 [Stephen Hammond MP] Back
Lord Chancellor's Exceptional Funding Guidance (Inquests), Ministry
of Justice, February 2013 Back
For a recent example see Level crossing safety in the spotlight,
TRL, 12 February 2014 Back
Q167 [Robin Gisby] Back
Qq182-183 [Stephen Hammond MP] Back