Injured person “pleaded” with ORR not to prosecute train operator
A heritage railway operator has admitted safety failings after its chairman suffered serious leg injuries during the extension of a railway line.
On 2 July last year, staff and volunteers of the Telford Steam Railway were building an extension to a line near Lawley Common in Shropshire. A length of rail weighing 450kg was being lifted from a wagon to the trackside by a crane, when it struck the company’s chairman Paul Hughes, who suffered serious injuries to both legs.
An investigation by the Office of Rail Regulation (ORR) found that the work had not been planned and the railway crane was unstable, defective, and had no safety certificate. Inspectors also discovered that none of the company’s staff or volunteers had been issued with any PPE, or received any training before starting work.
ORR head of inspection, railway operators David Keay said: “Those working on the Telford Steam Railway put their lives at risk, attempting to move the length of rail with an unstable and defective crane, without training, or planning. We will not allow such an inexcusable and casual approach to the safety of those working on Britain’s railways.
“Safety is the rail regulator‘s priority, and this year we will be inspecting heritage railways across Britain to ensure they are being operated safely.”
Telford Steam Railway appeared at Telford Magistrates’ Court on 10 July and pleaded guilty to breaching s33(1)(c) of the HSWA 1974. It was fined £5000 and ordered to pay £3000 in costs.
Speaking after the hearing, Mr Hughes told the Shropshire Star that he was disappointed that the company had been prosecuted. He said: “We have never hidden from the fact we have got it wrong, but for a voluntary-run charity that is hard to take.
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Injured person “pleaded” with ORR not to prosecute train operator
A heritage railway operator has admitted safety failings after its chairman suffered serious leg injuries during the extension of a railway line.
Safety & Health Practitioner
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Heritage Railways have a safety record that is second to none. The pressure on such volunteer led organisation is immense. I get the feeling that the ORR wanted to give the organisation a ‘serious kicking’ to highlight to other bodies that they can’t cut corners.
However as stated below simple plan, do check, act would have stopped this incident.
I am a Railway Enthusiast as well as a Health and Safety Manager.
The railways is a mile long and should not be confused with national rail system
I think that non of you do voluntary work or understand the mindset of the volunteer. I used to clean the locomotives on a heritage railway. This would often involve working at height, on a slippery platform with no fall prevention/arrest equipment, outside and in the dark and in all weathers. The volunteers take risks that would not be acceptable to a worker or member of the public; we do it because we want to. We don’t endanger others and there is a heightened degree of chioce and awarenes
It will become a business when it trades for hire or reward, and/or if the cars it fixes/restores belong to non-club members. It does not have to be profitable to be a business, indeed most Premiership football clubs are trading at a loss and are technically insolvent.
HSAW has been spread out of factories, shops and railway premises, by Common Law, to cover just about everywhere where a duty of care can be demonstrated to exist to someone.
A very interesting grey area legally. And it’ll only get greyer. As more activities/services previously provided by the state are done by volunteers of ‘the big society’, then the harm will transfer to the voluntery sector.
A zealous approach will only serve to stiffle activity and so in many instances it just won’t happen at all. Perhaps that’s the real intent?
The HSE Mythbuster Challenge panel view on volunteer activity….
http://www.hse.gov.uk/myth/myth-busting/2012/case006-reenactment.htm
Nick, to answer your final question; no.
The original case, which appears to have got lost in the legislation that is being thrown around by all here, is that a lift occured, it was badly planned, went wrong and someone was injured. Karma saw to it the the person responsible for the failings had their legs broken. Given the rants about low fines on other parts of this forum, I’d have though that broken legs was punishment enough. Had it been someone else, I’d be happy with the ORRs response.
“We don’t endanger others” – Hmmm…
I’ve followed this with interest before it made an appearance here and from looking at the served notice (available to view on the ORR website) it appears that the accident was only part of the story. What happened here was a failure to plan, assess and implment a safe system of work and the injured party was lucky to not sustain more serious injuries. Even more lucky was the fact that no-one else was injured as a result. An expensive lesson, easily avoided.
The problem with not prosecuting is the potential to set a precendent that could be used as a defence in future cases. As it was in this instance it was clearly proven that the work had been undertaken without adequate planning or assessment and as a result an accident occured that seriously injured one of the volunteers. If anything they’re very lucky that this happened to someone at the top as if this had been anyone else it would have been a prime case for a ‘no win, no fee’ compo claim.
Paul, no gloating intended whatsoever. On terms of know all? Yeah, I know my fair share when it comes to this specific area of expertise. Needless to say if this had been on either the national network or a tram system then the action would have been no different. Like I say, check the notice yourself and you’ll see that there appears to have been a litany of issues and they were VERY lucky to have not caused more serious injury to a volunteer on site.
Andrew, I suggest that you do some more reading before cementing your conclusion here. I’d reccomend that you pay some attention to ‘The Railways and Other Guided Transport Systems (Safety) Regulations 2006’ (available on the ORR website), specifically the requirements as mandated in section 4 that relates to safety critical work. This may clarify why this action was deemed necessary by the ORR in this instance.
…but volunteers who work on heritage railways are covered by ROGS. Railway undertakings fall into a slightly different set of regulations when it comes to whats required, but ultimately when accidents occur in a railway environment it will still be the HASAWA that is used for prosecution.
So, where if you want clarification in respect to this case look at ROGS first and then the HASAWA.
Andrew, regardless of how badly you want to prove otherwise Ian has it spot on. Let me point you in the right direction, again… R.O.G.S (read it carefully, you may be enlightened)…. The link you’ve provided bears no relevance whatsoever, absolutely none. Apart from anything else the HSE have no jurisdiction in relation to this type of accident, it’s the ORR.
Put a little more simply, do you think that it is ok for someone to sustain an injury whilst volunteering for an indutrial acitivty?
Karma’s got nothing to do with it. If the list was badly planned (on the face of it I’d question whether it was planned at all) then who was responsible? If someone else had been injured other than the society chair then fair game? Sorry, thats just way too late. The job wasn’t suitably planned and the risk wasn’t managed as required when undertaking safety critical work. Everything else is academic.
The Railways (Interoperability) Regulations 2011 (refer to F1 – S.I.2011/3066)
“owner”, in relation to a structural subsystem, means any person who has an estate or interest in, or right over that subsystem, and whose agreement is needed before another may use it;
hence section 33 1 (c) it is an an offence for a person – not an employer or the self employed.
They are fortuante that no one was killed.
High risk activity with low risk control = disaster waiting to happen.
HSWA Sec 4 (4) refer`s to: A person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).
Therefore Sec 4 applies via Sec 33(1)c which refers to Sec`s 2-7 of HSWA
The interpretation of “owner” stands under the The Railways (Interoperability) Regulations 2011 as referenced in the F1 link.
– Duty of Care established?
Doddle (if only)
Just don’t get it do they?
Whilst not condoning this, as this is definately a business but it raises a question:
… but exactly what is a business (work)?
Three mates getting together to restore a car -no.
5 mates restoring 5 cars..no?
Calling themselves the Vintage Car Club?
having a constitution?
When does pleaure become work or business? (especially for upaid volunteers)
Any thoughts folks?
At the end of the day where people are volunteering their services to an organisation which is incorporated the law applies to them as ’employees’ and the organisation as ’employer’. The railway had a legal duty to assess the risks, implement suitable controls ensuring that people are trained, equipment is fit for purpose, and a safe system of work applied.
As a railway volunteer as well as a safety professional I can see both sides, the challenge is to understand volunteer = employee. Simple
I have read the comments below with interest up to ray R on the 27th. I think that this prosecution was unlawful as the railway is not an employer and therefore does not owe anyone a duty under the HASAW 1974. Three of the charges were dropped pre trial as ORR guessed they would not stand up in court. Reg 19 of ROGS does not apply in a possession. As the railway could not afford to defend itself it had to plead guilty. No precident set as it was held in a magestrates court.
Have a read of the responses, most are ‘should have done’ or ‘told you so’. There are always knowalls like Nick who follows the errors of someone ‘with great interest’ & gloat about how wrong that people like Mr Keay got it. There are very few people that actually put themselves out to assist & help – perhaps Rod could offers his services to Mr Keay to help plan & prepare.
Motto. Those that can – do, those that can’t – become H&S advisors. Then tell the rest of us where we went wrong.
Would Mr Keay have been saying that if he was not the Director? Would another enthusiast have accepted being injured as part of their pastime or hobby?
Maybe the proper equipment and testing of the lifting gear, plus a little training for a couple of key staff, would have cost less than the fines incurred?
It may be a charity but they still have a responsibility to protect their volunteers and their controllers.
Dear Mr Taxpayer,
I sincerely hope you are not employed in an H&S capacity of any kind, be it in a workplace or an organisation where volunteers perform duties on behalf on an organisation.
Yours,
Someone who has read his IOSH code of practice.
I’ve done plenty of work as a volunteer and am well used to hearing the sort of self-serving guff to “justify” volunteers taking unnecessary risks.
“We don’t endanger others” – oh yes you do. You endanger the emergency responders who are called out to deal with any incident. You endanger your own family who may have to survive without you. Just because someone may not be immediately hurt by your actions doesn’t mean that you are not endangering anyone.
At a recent IOSH meeting I asked expert lawyer if she knew any case concerning accidents to /caused by volunteers. This was one only two known. Does anyone know of any more? If so, please e-mail me. Like many conservation organisations Wildlife Trusts use many volunteers some work parties are volunteer-led. We’re discussing this at annual conference in September- we always say standards of equipment and training for volunteers must be as high as employees and this case shows regulators agree
Heritage railways just like any other railway should ensure they have safe systems of work in place – no excuses, railways can be a dangerous place. Nor should Heritage railways be immune to prosecution for their safety failings.
That said, I do question the decison to prosecute. Is it really in the ‘public interest’ to prosecute a charitable organisation? The fines and costs would have been much better spent ensuring a SSOW, PPE, etc.
Not sure about a ‘precedent’, all prosecutions are based on their own individual facts. Indeed, each case is also penalised on the individual circumstances of the organisation.
There are many organisations which do not have adequate SSoW in place – they do not always get prosecuted. The only reason this particular organisation was prosecuted is because there was an accident with an injury, otherise it would have been an EN at most.
Andrew, a duty of care is a civil law doctrine and has nothing to do with criminal law, save for the rare statute exception, and has also been around a lot longer than HSWA ie Wilsons and Clyde Coal Co Ltd v English (1938).
Health and safety criminal liability is not determined by the financial arrangements of the organisation. It makes no difference whether the organisation is a profit making business or charity, whether those who work are paid, part-time or voluntary staff.
Interesting observations Usey, however Telford S R was prosecuted under s33(1)(c) which states: ‘ It is an offence for a person…’ No mention of ’employer’ as per s2(1) or 3(1) of HSWA.
With respect safety lady, I cannot agree with your assertions. HSWA does not discriminate between voluntary or commerical sectors, paid employees or those who are volunteers. Indeed, s3(1) applies regardless of the commercial status of the organisation.
I think these heritage railway operators have lost sight of the fact that they were putting themselves in a position to seriously injure or kill people with such antics and they have no right to do so, even for charity!
Proper precautions are cheaper than lives, and we all know that just hiring some expensive “experts” will just disallow the use of “reasonably practical” & “proportionate” safety measures.
Next time – Plan, Prepare, Proceed!
Hi Paul;
I quote from the report “the railway crane was unstable, defective, and had no safety certificate” and “none of the company’s staff or volunteers had been issued with any PPE, or received any training before starting work”.
Do you really have to be any kind of a jobsworth to see the flaw in this process?
If Mr Hughes and co had spent a few hundred pounds in the first place getting things in order then they wouldn’t be several thousands of pounds out of pocket now, lesson learned dont cut corners
There is a difference between being an employer (eg. Wildlife Trusts) who uses volunteers as well, and being an entirely voluntary organisation – a private club in effect. The HSWA is n/a in this area. For the first, broadly same standards expected for volunteers as staff, although still only s3 (HSWA). The railway sounds like it was not an employer at all – hence the change to the charges. I agree about the societal changes transferring risk to entirely voluntary sector – raises a challenge!
HASAWA applies only to employers, not to private organisations who do not employ anyone.
From HSE enforcement guidance. “Volunteers are not employees, so if consideration is being given to proceeding against a dutyholder under section 3 HSWA in respect of risks to volunteers, you need to prove that the duty holder is “an employer”, i.e. that in addition to the volunteers, there is at least one employee within the business/company.”
Volunteers for an employer covered by s3, no argument there.
The ORR should be fined for failing in its duty by not doing checks on all these heritage railways before the accident. did they not have a plan to inspect these site?
The ORR should have made sure these railways were operating correctly,