Recently, the media has picked up on litigation involving the use of heritage rolling stock, without centrally lockable doors, on steam operated specials which venture onto the mainline, such as charter trains, rail-tours and even some scheduled services on iconic tourist routes. It is the latter which has drawn the media’s notice to an issue, to which it would not normally pay much attention, thanks to the ability to make a Harry Potter connection. The heritage rail-tour operator West Coast Railways (WCR) runs the famed steam-hauled ‘Jacobite’ service on the spectacular Fort William to Mallaig line through stunning Highland scenery. Apart from the scenery, another major tourist draw on the line is that it crosses the famed Glenfinnan Viaduct. So far as gricers (rail enthusiasts) are concerned, the viaduct is iconic because it was the first viaduct in the country to be built entirely from concrete. But to fans of the Harry Potter movies it has an altogether different significance as the location where the Hogwart’s Express is strafed by Ron and Harry’s flying Ford Anglia. Indeed, WCR provided Warner Brothers with the locomotive and rolling stock when filming the scenes.
In common with many operators of heritage services, WCR mainly uses older Mark 1 carriage stock dating from the days of British Railways. The old coaches are frequently referred to as ‘slam-door’ in that passengers can open and close the heavy doors which shut with a loud slam. The distinctive sound of doors slamming up and down the platform as a train prepares to depart is now largely a thing of the past and has been replaced by the faint hiss and bleeping of centrally operated electric doors. The move to automatic doors was prompted by safety concerns as to the ‘crashworthiness’ of older rolling stock and the risk of passengers falling out of doors, sticking their heads out of the window, or hitting people on the platform by prematurely opening the doors as the train came to a stop in a bid to beat other commuters to the ticket barriers. The Clapham rail disaster of 1987 proved to be a pivotal moment in securing a consensus on the need to entirely get rid of all old slam-door rolling stock on network services. However, it took many years to secure this objective as the money was simply not there to make it happen overnight.
Heritage railway operators, which by definition still have many older carriages in their fleets, were granted exemptions from the requirement to retrofit carriages with central locking systems. Those operating steam specials services on the mainline, such as WCR, were allowed to fit more basic ‘secondary locking systems’ the nature of which are outlined below. In any event, because of safety concerns expressed by the Office of Rail and Road Regulation (ORR), WCR was faced with having its exemption revoked and incurring the considerable costs associated with retrofitting central locking systems; costs which the company regards as unsustainable. This has resulted in judicial review proceedings which are likely to reach fruition in the New Year.
Background: safety issues associated with older rolling stock
Crashworthiness
The propensity of the older types of railway carriage, which were typically made of wood or a combination of wood and sheet metal, to disintegrate in major collisions thereby dramatically increasing the number of casualties, has been a key factor throughout the grim history of the railway disaster. The Mark 1 was introduced in 1951 and was the first carriage to be designed and built by the newly nationalised industry. Being of an all steel construction it was certainly much more robust and crashworthy than its pre-war predecessors and it was noted that they faired somewhat better than older carriages in the Harrow and Wealdstone disaster of 1952. However, the state of the art is constantly changing and by the time of the Clapham junction disaster, some 35 years later, they seemed very dated. The full colour media coverage of the destroyed and mangled carriages were deeply shocking and perhaps more immediate than the black and white Pathe and Movietone footage of earlier major accidents. Moreover, by this time they shared the network with far more modern urban commuter trains, such as the Class 313 and 455 EMUs (Electric Multiple Units), which threw their datedness into sharp relief.
Still more pertinent is the fact that one of the trains involved in the collision was on a Bournemouth to Waterloo service. Just a week after the accident the newly created Network Southeast (one of the sectorised entities created as a stepping stone to privatisation) took delivery of its first Class 442 Wessex Electric (known unofficially by gricers as ‘plastic pigs’) to operate on the route. These were based on the Mark 3 body shell and included centrally operated electric doors.
Nevertheless, the Hidden Report into the Clapham accident was rather sanguine about the continued use of Mark 1 coaching stock and seemed to regard them as a fact of life on a cash strapped nationalised system. The report concluded that they ‘are not intrinsically lacking in collision resistance’ and, given the rarity of collisions between 12 coach trains:
…it could be forcibly argued that there are more rewarding candidates for large capital investment in the railway than would be incurred by early replacement of these vehicles. (at para [35]).
In any event, the Clapham disaster and the political aftermath arguably played some part in shifting the dial on the issue of comprehensive fleet renewal.
GaryReggae via Wikimedia Commons.
Dangerous doors
As regards the specific dangers associated with passenger operated slam-doors, it is important to note that the issue was not confined to Mark 1 carriages and earlier pre-war rolling stock. In 1969 British Rail (which manufactured its own trains through the subsidiary British Rail Engineering Ltd) introduced the Mark 2 which was much stronger but still retained the slam-doors (many of which are now used by the heritage rail sector in addition to the Mark 1). There was no change with the slightly revised Mark 2B which, for the first time, used single pane windows with no portion which could be opened. Slam-doors even remained a feature on the ultra strong Mark 3 carriages designed for use on Intercity 125 High Speed Trains (HSTs) which first came into service in 1976 (as noted above, a decade later the Mark III provided the basis for the Wessex Electrics which were in fact fitted with automatic doors).
The dangers associated with doors that the passenger can open while the train is out on live tracks are obvious and have already been briefly outlined in the introduction. Added to which is the problem that many could only be opened by lowering the window all the way and opening the handle from the outside. The ability to lower the window so far enabled people to lean out and risk being struck by lineside objects or even other trains, in addition to simply falling out if the door was not properly secured. Although there does not appear to be any precise data on how many people may have actually fallen out of railway carriages in the history of the industry, a cursory examination of the newspaper archives is sufficient to establish that it was a disturbingly frequent occurrence. In fact, such an event gave rise to a standard textbook authority in the law of tort.
In Easson v London and North Eastern Rly Co [1944] KB 421 the claimant, a boy of 4, had been travelling with his mother on an express train from Newcastle to London. South of Grantham he was allowed to go to the toilet on his own and he fell through a door some seven miles from Grantham. The case report describes him as being injured although it gives no indication of the severity of the injuries. After the event, a passenger found a door to be open on the offside of the train, but there was no indication as to who had opened it and when. The claimant argued that, as the railway company was entirely responsible for ensuring that the doors were closed upon leaving a station, the fact that a door was not secured could lead to an inference of negligence under the principle of res ipsa loquitur (the facts speak for themselves). He sought to rely upon the earlier case of Gee v Metropolitan Rly Co (1873) L. R. 8 Q. B. 161 in which the claimant had got up from his seat ‘to see how the signals worked’ and leaned slightly on a door which flew open and deposited him on the ground. The Court of Appeal distinguished Gee on the basis that it was an urban commuter line with a short distance between stations. There would have been little opportunity for a third party to interfere with the door since the last stop and from this the jury was entitled to infer that the company had failed in its duty to fasten the doors when the train left Westminster. In the case at hand the train was an express travelling large distances between stops and it was not realistic to assert that the company was in full control of the doors at all times Goddard LJ held:
In the present case it seems to me it is impossible to say that the doors of an express corridor train travelling from Edinburgh to London are continuously under the sole control of the railway company in the sense in which it is necessary that they should be for the doctrine of res ipsa loquitur, or a doctrine analogous to it, to apply. Passengers are walking up and down the corridors during the journey and get in and out at stopping places. I do not want it to be thought that I am minimizing the duty of the company. Before a train leaves a station the company must see that the carriage doors are closed. They are not under an obligation to inspect the off-side doors of the carriages at every stop. There must be reasonable inspection, and they must do the best they can. (Goddard LJ at 424)
Thus, there could be no inference that the door must have been unsecured due to a breach of duty and it would be for the claimant to provide evidence. The Court did not find such evidence forthcoming, the locking mechanism on the door was of ‘the most modern and approved type which was in perfect working order’ and, as the above passage from the judgment of Goddard LJ makes clear, the duty was to take reasonable steps to ensure that the doors were secured at stations and opportunities to check the ‘offside doors,’ meaning those on the opposite side to the platform, would be limited.
In the early 1990s the Health and Safety Executive (HSE) carried out an urgent safety review following a spate of fatal falls from railway carriages. In fact this led to a scandal about the number of fatal incidents involving carriage doors which was the focus of much media coverage. The Independent reported that there had been 324 fatal accidents involving falls from moving trains between 1972 and 1990: see David Black, ‘Safety team to report on train door accidents’ The Independent (London, 4 May 1991) 2. Following the outcome of the investigation the decision was taken to fit Mark 2 and 3 carriages with central door locking mechanisms operated by the guard. Once the doors had been released, they could be opened in the normal way by leaning out of the window and turning the handle. Before long, the need to make such changes was put on a statutory footing.
The legal requirement for central locking
By the end of the 1990s the need to invest in the fleet was becoming far more pressing as as the older carriages reached the end of their intended service lives. Moreover, there was added pressure from the post-privatization train operating companies (TOCs) to invest in new rolling stock. The time had come to sound time on the continued use of Mark 1 coaches as standard vehicles on scheduled network services. To this end the Railway Safety Regulations 1999 SI 2244 prohibited the continued use of Mark 1 coaching stock (save for those which had undergone certain safety modifications which were granted a stay of execution until 2005). The regs also prohibited the continued use of passenger operated ‘hinged doors’ unless a central locking mechanism was installed. As we have seen, many of the more recent BR standard coaches also used slam-doors which necessitated the reference to ‘hinged doors’ in the regs. Thus, the safety guidance which brought about the installation of central locking on Mark 2 and 3 carriages six years earlier became a legal requirement.
However, the regs also afforded the regulator a wide discretion to grant exemptions, with appropriate conditions attached, upon receiving a written application. This facilitated the continued use of older coaching stock by heritage rail operators and it is these exemptions which are at the heart of the dispute between the ORR and WCR.
The Jacobite dispute
As noted at the outset, the dispute which which has brought the safety of slam-door coaching stock to the fore again concerns the Jacobite steam specials operated all summer by WCR on the Fort William to Mallaig line. WCR was granted an exemption under the regs by the ORR on condition that it fitted secondary locking to its carriages. This is a much more basic and cheaper alternative to central locking; however, it relies upon a large amount of human input. In short additional manual locks are fitted to doors which cannot, at least in theory, be operated by passengers. The idea is that stewards activate the secondary locks when the train is ready to depart and release them when the train has come to a stand in the station. On 14 June 2023 the ORR served a prohibition notice on WCR stating that stewards had not followed these procedures with the result that there was a risk:
That persons may fall from the doors of a train or that any person leaning out of an open window of a moving train may be struck as the train passes infrastructure (including vegetation, rock cuttings and earthworks) close to the train.
It should also be noted that on 30 July 2021 the ORR issued new guidance on Mark 1 carriage exemptions and declared that the secondary locking systems would no longer suffice on heritage rolling stock used on the mainline at speeds in excess of 40kph: see ORR, ‘Railway Safety Regulations 1999 Guide to Operation of Mark 1 type and hinged door rolling stock’ (30 July, 2021). The regulator asserted that the retrofitting of central locking systems to heritage carriages was now more technically feasible and less costly and should be adopted as standard; the guidance states at para [3.5]:
In relation to design and availability of centralised door locking systems, technology has advanced since the regulations were originally written in the late 1990’s. The retrofitting of central door locking (CDL) equipment in a sympathetic manner to older vehicles is now considered to have become achievable in a way that was not achievable in the late 1990s.
The guidance set a deadline of 31 March 2023 for the changes to be implemented although this does not appear to have been an especially hard deadline. Thus, the ORR afforded itself a wide discretion to extend the compliance period under para [4.5] in circumstances where, for example, the 31 March deadline was not ‘achievable’ provided that ‘a time bound programme of work is in hand for such fitment [of central locking equipment].’ Indeed, WCR’s exemption certificate authorising the use of secondary locking was still displayed on the ORR’s website at the time of preparing this blog. However, the controversy in the summer and the issue of a prohibition notice may have prompted the ORR to adopt a more hard-line approach and the litigation currently in progress focuses on a decision to revoke the exemption and enforce the central locking requirement.
The judicial review hearing took place in the High Court towards the end of November and we await the outcome which is likely to be in the New Year. At present, one has to rely on patchy media reports of the proceedings in order to gain a sense of the arguments. However, as might be expected, WCR strongly contested the ORR’s assertion that retrofitting was now feasible and affordable. The company is reported as having asserted that the system would cost £7m to install; it should be noted that WCR is by far and away the largest heritage rail operator in the country and owns 63% of the heritage coaching stock. Thus, in terms of the legal issues, the case looks set to boil down to one of proportionality and a class cost/benefit analysis.
Comment
The issue of door safety reached a peak in the early 1990s and the failure of British Rail to deal with the issue is a scandal which already seems to have faded into history. Since then fully automated doors which cannot be opened between stations have become the norm and passengers will now only encounter slam doors on heritage trains. It should also be pointed out that safety issues are not solely confined to mainline excursion trains operating at relatively high speeds. Preserved heritage railways, which do not form part of the national network, can only operate at low speeds and have hitherto been exempted from the additional safety requirements. However, the dangers of falling from a stationary carriage were demonstrated by an incident at Loughborough Central on the Grand Central Railway in January 2023. The train had come to rest with the passenger door closest to the locomotive over the platform ramp. A passenger alighting through the door was faced with a greater drop than they anticipated, lost their footing and fell. The Rail Accident Investigation Board (RAIB) investigated the incident and published a number of safety recommendations: Report 13/2023: Serious injury to a passenger alighting from a train at Loughborough Central station
As slam-doors fade into history many passengers are now simply unaware of the dangers that may have seemed obvious to previous generations. Indeed, even when slam-doors were the norm accidents were surprisingly frequent! It might not occur to a passenger that a door can be opened when the train is moving and they may place their weight on it. Similarly, a passenger may not realise that a door can be opened when the carriage is not aligned with the platform because the train is longer than the platform. On modern trains the doors simply remain locked in the parts of the train which overhang the platform. Whereas, in days of old, one would have had to rely on signs outside saying ‘Do Not Alight Here!’ As might be expected, this generational divide afforded some elements of the press with the opportunity to adopt somewhat disparaging articles bemoaning ‘the youth of today’ when the Severn Valley Railway felt compelled to withdraw certain carriages following a number of incidents: The Daily Mail’s take on the issue was: Historic train carriages are taken out of service… because Gen Z passengers can’t work out how to open the doors (Daily Mail online, 14 April 2023). Given the number of incidents that occurred when slam-doors were a standard feature of the rail system, such criticisms are somewhat unfair.
Such considerations will doubtless feed into the court’s determination of whether the insistence on central door locking is disproportionate. Although, one should bear in mind that, for the purposes of judicial review, it would be necessary to show that the decision to revoke the exemption was ‘irrational’, which sets the bar very high. For its part, WCR will have doubtless pointed to the fact that no one has yet fallen from one of its carriages and that the shortcomings associated with the secondary locking system that led to the prohibition notice can be rectified with better training and supervision of staff.
The heritage rail sector suffered huge losses in the pandemic in common with many industries in the tourist sector and it will be anxiously following the proceedings as it struggles to get back on its feet. WCR is reported as saying that the imposition of such costs would render its business ‘unviable’ and other operators may be in a similar position. We shall have to await the outcome of the proceedings in the New Year to find out whether the Hogwart’s Express may have pulled out of Platform 9 and 3/4 for the last time!