Introduction
Back in September Network Rail was heavily fined by the High Court in Aberdeen in respect of the Carmont derailment of 12 August 2020 in which soil, stones and debris washed onto the line by a landslip following heavy rain, caused the derailment of the 06:38 Aberdeen to Glasgow Service. The consequences were exacerbated by the derailed train striking a bridge parapet which scattered the rolling stock and resulted in part of the train, including the lead power car, tumbling down an embankment. Tragically, the accident resulted in three fatalities and a number of injuries.
The service was operated by one of the refurbished short formation HST trains supplied to Scotrail following electrification of routes (such as the GWR London to Bristol and South Wales line) which rendered the diesel powered trains surplus to requirements south of the border.
An investigation and report prepared by the Rail Accident Investigation Branch (RAIB) concluded that there had been serious failings on the part of Network Rail in terms of how they had addressed a history of land drainage issues at the site of the accident.
The initial accident received widespread media coverage as did the subsequent sentencing. However, as ever, media reports are somewhat vague as to the precise nature of the failings on the part of Network Rail and the exact offences of which they were convicted. In this post I seek to clarify the issues (using the sentencing remarks of Lord Matthews and the RAIB report) and link the case in with the wider problems faced by the network in terms of dealing with climate instability.
Background to the incident
The origins of the accident can be traced to October 2002 when, following storms and torrential rain, soil and rocks washed onto the track at the site of the future derailment. However, it was not until 2007/8 that a plan was formulated to put in new drainage infrastructure to prevent the slope from becoming waterlogged and collapsing. The need to put the plan into effect was given new impetus by a landslide in August 2008. The drainage system was designed by Ove Arup & Partners and Carillion were engaged to carry out the works. The works took some time to complete and further landslides occurred actually during the construction in 2010/11. In the light of these events a general consensus emerged amongst the concerned parties that certain modifications should be made. However, due to a change in the engineer overseeing the project and what the judge described as a ‘breakdown in communication’, these modifications were not implemented by the time the works were deemed to be completed in January 2013. As a result of these deficiencies, and other ‘defects in construction’, the new drainage system was not equal to the task of preventing the land from becoming waterlogged. Thus, as Lord Matthews put it in his sentencing remarks:
Had the drain been built according to the specifications as modified the excess water caused by the extreme conditions could have been accommodated and the accident would not have happened.
Following completion of the works in January 2013 there continued to be other failings in terms of the management of the site which can be summarized thus:-
- Failure to check the quality of the work once completed;
- Failure to maintain a health and safety file on the site and ensure that it was available for inspection;
- Failure to add details of the work undertaken and the surroundings to the appropriate register so that the site could be regularly monitored and inspected;
- As a result of the above, a failure to inspect the site until May 2020 despite being made aware of problems on several occasions in the intervening seven years. The inspection which eventually was carried out in May 2020 was described as ‘cursory.’
- A failure to implement adequate training and systems to prepare for extreme weather such as Extreme Weather Action Teleconferences (EWATs).
The applicable law
Despite the specialists nature of the subject matter, such issues are still dealt with according to basic principles of health and safety law. The failure to properly manage the risk created by the landslip problem at the site constituted a breach of section 3(1) of the Health and Safety at Work Act 1974 (H&SAWA 74) which provides as follows:
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
Thus, the duty under this section is owed to persons other than the defendant’s employees. It is worth pausing for a moment, to reflect on the structure of the industry post-privatization. Two of the victims were railway employees, namely, the driver and the conductor. However, the effect of the Railways Act 1993 was to separate the track from the trains with the result that, although the victims were railway employees, they worked for a different company (Scotrail operated by Abellio) to the infrastructure provider (Network Rail); as such the section 3(1) H&SAWA duty was engaged. In the old British Rail days they would have been employees of the same entity which would have engaged the employers’ duty under section section 2. Of course, section 3 would still have been engaged in relation to the death of the passenger and the other casualites.
A breach of section 3(1) is rendered a criminal offence by virtue of section 33(1)(a) which provides that it is an offence for a person to , ‘to fail to discharge a duty to which he is subject by virtue of sections 2 to 7.’
The sentence
As the defendant was a corporate body a fine was the only penalty available to the court. In determining the level of fine Lord Matthews alluded to the Sentencing Council Guidelines for health and safety prosecutions. Although, strictly speaking, these pertain to England and Wales, the judge asserted that, as the H&SAWA is a UK statute, ‘it is helpful to take account of the approach south of the border.’ His Lordship was in no doubt that the seriousness of the offence was at the top end of the scale given the number of fatalities and the lengthy period of time over which there was a failure to properly address the issues and act upon concerns raised. In terms of the sentencing guidelines the seriousness of the harm risked by the failures and the likelihood of the harm occurring have to be categorised. Both elements were afforded the highest categories; thus, the seriousness of the harm was classified ‘A’; and the likelihood of harm was classified ‘1’. In addition, His Lordship took on board the fact that Network Rail had been guilty of previous offences, although, he acknowledged that they were not of the same magnitude. Moreover, despite the fact that it was a large publicly funded organization, a substantial fine would not undermine its ability to perform its operations. Having made a reduction for the fact that the defendant had pleaded guilty at an early stage and not allowed the matter to proceed to trial, the court settled on a figure of £6.7m. This is a substantial sum given that in 1991 British Rail was fined £250 thousand (equivalent to roughly £590 thousand today) in respect of the Clapham Junction rail disaster of 1988 which claimed 35 lives. Although, even at the time the fine was heavily criticized for being too lenient; see, for example, Michael Dynes, ‘BR fined £250,000 for failure at top in BR crash’ The Times (London, 15 June 1991) 3. During the course of the subsequent 30 years or so there have been various policy initiatives to drive up the level of penalties for health and safety offences in all industrial sectors; see, for example, the Health and Safety (Offences) Act 2008 which amended the HASAWA 74 in this respect.
Wider issues: the pressures of climate instability on rail infrastructure
Climate change has brought with it changes in weather patterns which are placing ever greater demands on national infrastructure. An extreme weather event, such as the storms of February 2014, can bring about a sudden and catastrophic failure – who can forget the rails hanging helplessly in mid air following the collapse of the sea wall at Dawlish? Following initial repairs the sea wall along the entire section of track has now been renewed and significantly upgraded in order to future proof it against the challenges posed by ever more unpredictable and extreme weather; see BBC news.
Network Rail
However, equally severe failures can be brought about simply due to a wetter climate and increased spells of prolonged heavy rain. The events of February 2014 prompted one of my early blog posts on climate instability and the emerging Network Rail strategy for dealing with the issue. This outlined the climate change adaptation requirements under Part IV of the Climate Change Act 2008 which includes a requirement for infrastructure providers to increase the resilience of their land, structures, equipment and systems. Since 2014 Network Rail has adopted a series of ‘route weather resilience plans‘ which set out priorities for increasing the resilience of particular routes over 5 year cycles. We are currently approaching the end of the second cycle running from 2019 to 24. Needless to say much of this work focuses on flooding and landslips and the need to improve drainage and strengthen embankments and so forth. The scale of the task, however, is vast and it can be difficult to predict when and where the next major failure is likely to occur. Although not quite on the same scale as Dawlish the landslip at Hook in January 2023 occurred without warning and also left rails dangling uselessly in mid-air severing a main artery on the national rail network i.e. the mainline from London to Southampton and the South West.
Network Rail
Of course, the landslip which brought about the Carmont derailment was in fact highly predictable and stemmed from failures in the management of an existing situation.
On the wider issue of climate change adaptation, it is worth noting that Network Rail is a public body; indeed, following a review conducted by the Office for National Statistics (ONS), it was formally classified as an arm of central government in 2014. As such it faces the same difficulties as any other public body in terms of budgetary constraints and prioritising spending. However, the Office of Road and Rail (ORR) stipulated that more resources must be devoted to climate change adaption before signing off on the Control Period 7 (CP7) spending plan running from 2024-29: see ORR ‘Periodic review 2023 of Network Rail : final determination.’ The Carmont derailment shows that lives depend on getting these decisions right and the prioritisation of climate change adaptation is to be welcomed.