The House of Commons Transport Committee published its wide-ranging report on safety at level crossings in March this year. Today, the committee published a response from Network Rail. MPs had levelled heavy criticism at the rail infrastructure operator for the “callous disregard” they had shown bereaved relatives. Today Network Rail proved that they still don’t get it. The company still tries to push blame onto level crossing users. NR also claims to have previously disclosed vital information and has still not ruled out bonuses.
Chris Bazlinton’s teenage daughter Olivia was killed at a level crossing which divides Elsenham station in Essex into two. He justifiably described Network Rail’s response as “mealy-mouthed”. At the public hearing last November NR’s managing director of network operations, Robin Gisby, told MPs:
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.
Today’s statement takes several steps back:
We are of course reliant on the public using level crossings correctly and adhering to signage, guidance and instructions when doing so. Rather tragically we know this is not always the case.
If NR had done everything they should have done, in terms of risk assessments, keeping level crossings in good repair, and upgrading them, they may have been able to make this statement.
Three quarters of level crossings, accounting for around an eighth of walking trips across all level crossings, have no automatic barriers, flashing lights or audible warnings. Many of those crossings are rarely used, so it would be grossly disproportionate to install expensive safety measures. But in some cases NR could and should do more. Without a doubt NR’s assertion will be hurtful to the bereaved families.
For the first time the families of Olivia Bazlinton and Charlie Thompson now know what the lawyers looked at as part of an investigation into the non-disclosure of the “Hudd memo”, which was written by an inspector to convey his concerns about the Elsenham level crossing. However the note from NR does not explain why the memo was not disclosed. It also comes to a bafflingly contradictory conclusion:
The failure to disclose this document did not arise because of any failure to have in place a proper system for disclosure.
If an employee had stolen money, could NR have made a claim that it wasn’t because NR didn’t have a proper system in place to stop fraud or theft? It seems unlikely. What this sorry situation does prove is that the families would not have been able to bring a civil prosecution without the actions of a whistleblower or the diligence and persistence of the bereaved families in carrying out their own investigations and keeping up public pressure. [Italicised words changed16 April 2014, in response to a comments.]
Health and safety law states that risks must be reduced so far as is reasonably practicable. In its guidance the Health & Safety Executive (HSE) provides tolerable limits for the probability of a fatality per year (for workers and members of the public). The committee’s investigations showed that hundreds of level crossings may exceed this guideline level. This is what NR had to say in response:
The 1 in 10,000 risk, or tolerable limit, defines the risk of death to an individual member of the public where the risk is imposed on them. The guidance was aimed at limiting the risk to an individual from, for example, a petrochemical plant being constructed near houses. In such an example, the risk is clearly imposed on the individual. The risk at level crossings, however, is not imposed on an individual as the user can decide whether to cross or to use other routes such as bridges or tunnels to cross the railway. In this regard, we do not believe the 1 in 10,000 risk limit applies to level crossings.
Try telling that to someone who has moved into a housing development near a level crossing, with no realistic alternative for crossing the railway. The interesting word in their response is “believe”. If they knew this as a point of fact, they wouldn’t have used it. Most of the things we do are entirely without force. We get on buses, planes, boats, even trains, entirely voluntarily. But we expect them to be safe.
Crossing a railway line is inherently more hazardous than crossing a local road, because of the speed and mass of vehicles and the inability of drivers to swerve, so it is arguable that the 1:10,000 level does apply to level crossing users. At the very least shouldn’t they have checked with the HSE?
Do bonuses really reward good performance or do they just encourage bad performance? In 2012-13 NR’s top management received bonuses that mostly exceeded £200,000. The MPs on the committee took the view that no bonuses should be awarded this year. What did NR say?
We note the Committee’s observation regarding the award of bonuses to Executive Directors. Any bonus awards to Executive Directors are subject to considerable discretion from the Remuneration Committee of the Board. The Committee consider, in full, the business performance for the period in question taking input from the Safety, Health and Environment (SHE) Committee of the Board regarding public, passenger and workforce injuries. This advice would include a review of fatalities and life changing injuries. It should be noted that Executive Directors are not members of either the Remuneration or SHE Committees.
What they didn’t respond to was criticism from the Lord Chief Justice of England & Wales, in a judgement earlier this year in the Court of Appeal. NR had been appealing against a heavy fine after being found guilty in a lower court of breaching health and safety legislation. Their poor risk assessment and lack of risk reduction measures resulted in a collision at a level crossing, causing life-changing injuries to a child. Lord Thomas said:
If, as is accepted by the board of Network Rail, 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.
The judge could have gone a step further. Network Rail’s own management incentive plan statement is clear:
Recognising that safety is Network Rail’s number one priority, in the event of a catastrophic accident for which Network Rail was culpable no annual bonus would
be payable to any Network Rail Executive Director.
Similar provisions apply to the long term incentive plan. Although the document itself doesn’t define “catastrophic”, life changing injuries are most certainly catastrophic for the child and his family. And, given the various failings identified by the courts, regulators and the Transport Committee’s inquiry, any bonus would be wholly unjustified.