The Fatal Incident
On the morning of 3 July 2019, railway track workers Gareth Delbridge and Michael Lewis were struck and fatally injured by a passenger train at Margam East Junction on the South Wales main line. A third track worker came very close to being struck. The workers were part of a group of six staff undertaking a maintenance task on a set of points on the line. The train driver applied the emergency break nine seconds before the collision and continued to sound the train’s horn as it approached the three track workers. It was travelling at approximately 50mph when it struck Mr Delbridge and Mr Lewis, causing them fatal injuries.
The RAIB Investigation and Report
The fatal incident was investigated by the Rail Accident Investigation Branch[1] (RAIB), an independent body responsible for the investigation of railway accidents and improving safety. On 12 November 2020, the RAIB published a detailed report which considered the events preceding the collision and identified the immediate cause and other factors relevant to why the collision occurred.
The report identified the following key causal factors:
- The track workers were on a line that was open to traffic while carrying out a maintenance activity which they did not appreciate was unnecessary.
- They were working without the presence of formally appointed touch and distant lookouts to warn them of approaching trains.
- The three track workers did not see or hear any warning of the train’s approach. They were using a noisy machine and almost certainly wearing ear defenders.
- There was no challenge to the way the work was being done, likely due to the dynamics within the group. The group acted in a way that was not compliant with the rules which went unchallenged within the team.
The report went on to identify a number of other underlying factors relevant to Network Rail, including:
- Over a period of many years, Network Rail had not adequately addressed the protection of track workers from moving trains.
- Although Network Rail had focused on technological solutions and new planning processes, it had not adequately taken account of the variety of human and organisational factors that can affect working practices on site.
- Network Rail’s safety management assurance system was not effective in identifying the full extent of procedural non-compliance and unsafe working practices and did not trigger the management actions needed to address them.
- Although Network Rail had identified the need to take further actions to address track worker safety, these had not led to substantive change prior to the collision at Margam.
- The work attending to the insulated rail joints (as was being undertaken at Margam) should have been done with the lines closed to traffic. However, on many busy railway lines there are limited opportunities for maintenance staff to access the track when the line is closed.
The RAIB report confirmed that between October 2005 and July 2019, there have been 31 investigation reports, 2 class investigation reports and 14 safety bulletins/digests relating to track worker safety. The RAIB have also investigated 21 incidents involving fatalities and near misses involving track workers operating under the lookout warning safe system of work.
From page 89 onwards, the report made a number of recommendations, principally addressed to Network Rail, but also to the regulator (the Office of Rail and Road) to enable it to carry out its obligations of ensuring the recommendations are acted upon and of reporting back to the RAIB.
The significance of the RAIB investigation and its relationship with ORR and BTP
The distinguishing feature of the RAIB investigation and report is that its purpose is not to establish blame, fault, or liability. In the same way that a coroner’s inquest seeks only to establish who the deceased was and where, when, and how they came to their death, the RAIB investigation is simply to determine “what happened and why, in a fair and unbiased manner”[2].
In addition to the RAIB, railway incidents may also be investigated by the Office of Rail and Road (ORR) and British Transport Police (BTP). A Memorandum of Understanding (MoU)[3], published on 1 January 2020, exists between the RAIB, ORR and BTP, stating that its fundamental purpose is to ensure “effective investigation of railway accidents and incidents, while allowing each party to pursue the separate aim of its investigation.” It is not a legally binding document and must not impinge on any party’s ability to fulfil its own legal requirements, including the RAIB’s requirement of independence.
The MoU acknowledges that parallel investigations may be necessary until the likely cause of the incident is known and future involvement can be more clearly determined, but in doing so, the MoU highlights areas of mutual interest which require liaison and cooperation and establishes principles to ensure these areas of mutual interest are managed effectively.[4] Importantly, in respect of health and safety law, the MoU recognises that the ORR is the relevant enforcing authority who will conduct its own investigation into any potential breaches.
Enforcement – ORR and BTP
In respect of the powers of the ORR, it has available to it several enforcement options, including issuing information and advices, improvement notices, prohibition notices and cautions. It also has available to it the option of pursing a prosecution through the courts, in the same way as BTP (through the Crown Prosecution Service). The MoU states that it is BTP’s responsibility to, amongst other things, “prevent and investigate criminal offences, and prosecute offenders”[5], and that it is a statutory function of the ORR “to investigate potential breaches of health and safety legislation related to railway operations, including those arising from railway accidents and incidents. Where appropriate this can result in enforcement action ranging from advice up to prosecution”.[6]
It is noteworthy that both bodies’ decision of whether to pursue a prosecution is governed by the Code for Crown Prosecutors. This is confirmed in the ORR’s Health and Safety Compliance and Enforcement Policy Statement 2016[7], at paragraph 30. In respect of the public interest test, the ORR policy statement goes further than the Code for Crown Prosecutors and offers a more tailored approach to railways and roads, by providing a list of factors which, if applicable, will make it more likely that they will pursue a prosecution.[8] The ORR also takes into account how an individual or company has responded to a breach in the law when making their decision on how to proceed[9].
Enforcement – ORR and the Health and Safety Executive (HSE)
The relationship between the ORR and HSE in respect of enforcement is governed by the Health and Safety (Enforcing Authority for Railways and Other Guided Transport systems) Regulations 2006 and their Memorandum of Understanding[10] signed in January 2017. Although the HSE retains enforcement responsibility in certain circumstances, it appears that the ORR is the primary enforcement authority for incidents arising in the context of the operation of the railways and roads. At paragraph 45 of their MoU, it states that the “ORR retains the responsibility for investigating accidents with a view to establishing any legal breaches of health and safety and railway specific law and taking appropriate enforcement action against railway employers”. In order to assist the ORR in their decision making when carrying out enforcement responsibilities in an effort to maintain a level of consistency with the HSE, it adopts the HSE’s enforcement management model.[11]
The adequacy of the response from the ORR to the Margam incident
HM Chief Inspector of Railways (Ian Prosser CBE) issued a response to the RAIB report, confirming that in the 18 months prior to the incident at Margam, the ORR had undertaken additional inspections following their growing concerns that Network Rail were not doing enough to control risks to track workers. These inspections had resulted in “formal enforcement action being taken” and Network Rail had responded by forming a significant task force to bring about the “much needed improvements”.
However, the above information was qualified on the ORR website[12] by a statement confirming that the ORR “had already decided to take enforcement action prior to the incident at Margam. Network Rail must comply with the Notices by July 2022”. The distinction of “deciding” to take enforcement action and the actual step of taking action is significant, because according to the enforcement notices published on the ORR website[13], action was not taken until 8 July 2019 (some 5 days after the tragic incident at Margam). The enforcement action took the form of two “notices of improvement” which related to the failure of Network Rail to ensure, so far as is reasonably practicable, the safety of their employees and contractors working on or near the line. The date for compliance is 31 July 2022. The delay between the ORR’s decision to take enforcement action to protect the health and safety of track workers and the actual issuing of such notices (being after the death of two track workers) raises questions regarding whether or not the ORR has itself properly discharged its responsibilities as the regulator.
Conclusion
Although the relationship between the RAIB, ORR, BTP and HSE is far from straightforward, the conclusions of the RAIB report with regards to the failures of Network Rail could not be clearer. Nevertheless, the use which can be made of the RAIB report remains severely limited because the scope of the RAIB’s investigation prohibits them from apportioning blame and/or liability, and as such, their report must not be used for that purpose either. The restrictive nature of the RAIB’s work is highlighted in the Memorandum of Understanding between the CPS and the Air, Marine and Rail Accident Investigation Branches (AIB) which states that the AIB’s “do not normally appear in criminal court proceedings because the court’s fundamental purpose is to apportion blame and/or liability, which the AIB’s are explicitly prevented from doing by law. Therefore, the AIBs must not be put in a position where it could appear that they are supporting the apportionment of blame or liability. It must be made clear in court that any Inspector who appears is not appearing for either defence or prosecution, but to assist the court with the presentation of fact-based evidence.”[14] This means that the role of the ORR and BTP becomes even more important in investigating, and if necessary, prosecuting failures of Network Rail because the RAIB investigation and report, appears to have all the bark, but lacking in bite.
David Whittaker QC and Sophia Dower
[1] Established by the Railways and Transport Safety Act 2003. The duties of the RAIB are set out in the Railways (Accident Investigation and Reporting) Regulations 2005.
[2] RAIB report, preface
[3] Hyperlink – MoU between RAIB, BTP, and ORR – GOV.UK (www.gov.uk)
[4] Paragraph 3 and 4.3 of Memorandum of Understanding
[5] Paragraph 2.2 of Memorandum of Understanding
[6] Paragraph 2.3 of Memorandum of Understanding
[7] Hyperlink- Office of Rail and Road’s (ORR) health and safety compliance and enforcement policy statement 2016
[8] Paragraph 32 of ORR Health and Safety Compliance and Enforcement Policy Statement 2016
[9] Paragraph 33 of ORR Health and Safety Compliance and Enforcement Policy Statement 2016
[10] Hyperlink- Memorandum of understanding between the Health and Safety Executive (HSE) and the Office of Rail and Road (ORR)
[11] Hyperlink – supplementary-guidance-to-hse.pdf
[12] Hyperlink – ORR response to Rail Accident Investigation Branch report | Office of Rail and Road
[13] Hyperlink – Improvement notices 2019 | Office of Rail and Road (orr.gov.uk)
[14] Memorandum of Understanding between The Crown Prosecution Service and the Air, Marine and Rail Accident Investigation Branches – GOV.UK (www.gov.uk), paragraph [25]
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