![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Silverlink Trains Ltd v Collins-Williamson [2009] EWCA Civ 850 (31 July 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/850.html Cite as: [2009] EWCA Civ 850 |
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN' S BENCH DIVISION
HIS HONOUR JUDGE REDDIHOUGH
(Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE HOOPER
and
LORD JUSTICE WILSON
____________________
Silverlink Trains Limited |
Appellants |
|
- and - |
||
Mr Paul Phillip Collins-Williamson |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Melville QC (instructed by Messrs Kester Cunningham John) for the Respondent
Hearing dates : 21 and 22nd July 2009
____________________
Crown Copyright ©
Lord Justice Pill :
"There are various relevant facts which, I believe, are not in dispute. At the time of the accident, Gunnersbury Station was used, as it still is today, by trains on the North London Line and by London Underground District Line trains. The type of train operated by the defendant on the North London Line was a class 313 electric multiple unit consisting of three carriages. Each carriage has two passenger entry doors located roughly one third and two thirds of the length along each carriage. These doors are power operated sliding doors. At each end of the train is a driver's cab with a guard's vestibule adjacent to it. The door to that vestibule is a single leaf sliding door, also power operated. That door is referred to as the guard's local door. The window in that door is not capable of being opened so that the guard can look out. These trains were operated by the defendant with a driver and a guard. The driver would be in a cab at the front of the train and, for a train travelling in the direction of Richmond, the driver's position would be to the left, facing forwards and, therefore, on the side away from the platform at Gunnersbury. The guard would be at the rear of the train in the vestibule where, adjacent to the local door, were controls for the operation of the passenger doors and local door and for communicating to the driver via a bell system."
Class 313 units are, we were told, in general use on the railway network. The appellants operated a substantial network, mainly in and around London but including services to Birmingham and Bedford.
"As can be seen from the photographs of it, Gunnersbury Station is constructed on a curve in the railway track. There are two platforms immediately adjacent to each other and centrally located between the railway lines to and from Richmond. By reason of the curve at the station, [to the left in the Richmond direction] when one of the defendant's class 313 trains is stationary there, there are significant gaps between the platform edge and the side of the train. At the mid point of the carriage, the gap is some 430 mm and, at the point where the carriages are coupled, it is in excess of 1m. These gaps are typical of stations with a curved platform and are within railway industry standards. The gap at the point of the passenger entry doors is 269.5 mm, which is within the allowable maximum of 275 mm. It is agreed that the gaps between the train and the platform at Gunnersbury are sufficiently wide for a person to fall down to track level. Painted along the edge of the platforms are "Mind the Gap" notices. A train guard on these trains is also required to make an announcement to passengers on approaching Gunnersbury Station to warn them of these gaps."
There are no staff on the platforms to assist with train despatch and that is the responsibility of the guard on the train. On over three quarters of the stations on the railway network, there are no station staff to carry out train despatch duties.
The first issue
Conduct of the Guard
"I find that the claimant was shouting, doing what is described as Ali G impressions and banging or tapping on the side of the train. By reason of the manner in which he was doing that, and because as I accept he was unsteady on his feet and stumbling, it would have been apparent to anyone who saw him that he was intoxicated or drunk. Indeed that was the view formed by those three witnesses who saw him."
"I find that there was a relatively short period during which, as Mr Gregory stated, the claimant walked away from the train before returning to it and commencing his drunken and obvious behaviour. Thus I find that he commenced that behaviour along the side of the train, over the distance I have mentioned, at the latest at 23.42.49. It may be that Mrs Wileman and Ms Steenkamp did not see the commencement of the drunken behaviour, but clearly as it progressed their attention was attracted to it."
"On the balance of probabilities the claimant was behaving in this way over a distance nearing 14 metres, that being the distance between the door from which he alighted up to the rear end of the middle carriage, which I find was the point near to which he fell. In relation to this there was evidence contained in Mr Peterson's report that blood stains were found on the front of the rear carriage."
Mr Norris submitted that the judge has wrongly assumed that the respondent fell from the platform at or near the point where the blood was found on the shoe beam on the rear carriage. It was from that finding that the judge concluded that the respondent had walked 14 metres from where he alighted from the train.
"I reached down to help him and at this point the train started to move."
"The male walked approximately 1 metre along the platform. He then walked back towards the train that he had just got off."
"I find that either for some reason the claimant's presence and behaviour just did not register with him, or it did and he chose to ignore it and assume that the claimant would be safe."
Conclusion on first issue
The second issue
System of operation
"The claimant asserts that a safe system for the dispatch of trains at Gunnersbury would have involved staff on the platform, or the use of CCTV monitors and/or mirrors for the guard or driver, similar to those provided for the drivers of the London Underground trains, or a local door which would remain open until the train starts moving, or a window in the local door which opens and through which the guard can look until the train starts moving."
The "window" is the time between the guard re-entering the train and the train starting. In the present case it was 14 seconds.
"I therefore find that it is established that to deal with the clear risk of such an accident occurring in the 10 to 20 seconds window of time in question, the defendant should have had a system whereby the guard looked out of an open window in the local door up to and just beyond when the train commenced its departure from the station. It must follow that I find that in that regard the defendant failed to measure up to the appropriate standard of care and was negligent."
"However, it does seem to me, and I so find, that to deal with the risk of a person falling between a train and platform in the relevant window of time, it would have been very straightforward to have a system whereby the guard looks out of an open window in his local door up until or beyond the time when the train moves. In my judgment, this would require a relatively modest modification to the local door and I am unpersuaded by Mr Metcalfe's view that the Railway Inspectorate would not approve it. It is of significance that other trains such as the class 321 do have such an opening window which the guard does look out of prior to and at the time of the train's departure. Indeed, the Master Rule Book requires that to be done where such a window is available.
In my judgment, the risk of the guard's head being caught as the door was operated or of a passenger assaulting him or trying to jump in the window are low and of far less gravity than the possible consequences of someone falling in the gap between the platform and the train in the way the claimant did."
"The principle is that trains should not be moved until it is established it is safe for the train to do so."
"Passengers falling off platforms (including struck by train) (TE 12A) – 56.2EF/100yrs
The figure has been derived in part from Silverlink's own statistics. In assigning such a high risk, three other issues were taken into consideration:
- the problems of overcrowding experienced on many of Silverlink's stations, and;
- the unpredictable and uncontrollable behaviour of a minority of passengers late at night, particularly those under the influence of alcohol and drugs;
- a significant potential for fatalities arising from such an incident."
"Q. Most people on a platform, by the time of this window, will have either boarded or alighted from the train, will they not? Most people anywhere near the train will have boarded it or alighted from it.
A. I wouldn't agree with that. I think there are always people, latecomers, who are trying to get onto a train when the doors are closed, that kind of thing."
"Here the likelihood of an accident may have been small, but at least it was sufficient to prevent the respondents from maintaining that the accident could not have happened without the appellant being negligent. And the consequences of any accident were almost certain to be serious. On the other hand, there was very little difficulty, no expenses and no other disadvantage in taking an effective precaution. Once it is established that danger was foreseeable and, therefore, that the matter should have been considered before the accident, it appears to me that a reasonable man weighing these matters would have said that the precaution clearly ought to be taken. I am therefore of opinion that the appeal should be allowed."
"In all of my experience as a local manager it never happened to any of my staff. When I was Traction Train Crew Manager of the British Railways Board I had access to the daily incident logs and I never came across it then. When I was Head of Safety in the British Railways Board I never came across it then; never discussed it in any of the meetings that I attended where we were talking about the adequacy of the rules and procedures and the safety measures that the industry needs to adopt.
I have to say that since I have been a consultant I do not have access to those daily incident logs. I am not saying it does not exist, but to the best of my knowledge it is not on the industry radar, if you could call it that, as a risk that needs to be addressed."
"It has a window in it to enable the guard to look out. The window has benefits, there is no question about that, the guard can look out, but it has disadvantages. It is an opportunity for people to try and dive in through the window.
I know it sounds ridiculous, but I remember when I was at British Rail in about 1994 (or it might have been 1995) there was a very sad case of somebody going for a job interview. He was late arriving at Oxford Station and he tried to get in through the window. He fell under the train as the train was moving and he died. You could argue the guard can see out and stop the train, but that takes time."
In answer to another question, he added:
"There is always this residual risk, and there are various options open to the industry, but you have to balance the pros and cons of all the different methods of course. Yes, there is a benefit in the guard being able to look out, but there are many cons associated with that.
If we think about the physical abuse that guards have in certain types of area. I have to say it is not widespread across the whole of the country, but on this type of operation at Gunnersbury it is a common occurrence I am sad to report; the kind of areas that Silverlink cover. That is with a window."
"That is a very good point. I would say the likelihood of it happening is quite low with a guard, with that kind of arrangement, but if somebody was outside, a passenger for example, and the guard is looking out of that window and a passenger attempted to join the train after the final safety check had been carried out and all the passengers doors are secured, if they knew they could go to the external device that opens that door and power it open, the risk is from somebody external to the train coming along at the last minute and attempting to open that door using an external device."
"But what you would do is you would do a risk assessment to assess the level of risk; the residual risk of the train being unsupervised for that period of time, albeit 15 second, and in assessing that risk you would use data that exists of Silverlink services to establish the likelihood that somebody falling between the train and the platform during that short period of time, for all conditions; I'm not just saying for somebody who is in a drunken state, but for all passengers.
And so you would assess the likelihood of that event and you would assess the consequence of that event. And I would put it to you that if you were to do that it is likely, given that at the lower frequency of these events, albeit the significant consequences, that you would still fall into the tolerable area which would mean you would have to do a risk assessment to determine whether any additional controls were reasonably practicable. If you were then to do a cost benefit analysis for this additional equipment that you are limited to, you would find that it would not be reasonably practicable because the cost of that additional equipment to manage that small, very small, residual risk just will not add up.
Now if that was the case, you would find that across the railway network here in the UK, train operators would be providing that kind of equipment for services operated by a guard which plainly they had not done and the rail industry has not required them to do it, either be it through Railway Group Standards or through the Railway Safety Principles and guidance which the Railway Inspectorate require."
Later, he added:
"Because they made their position quite clear when we were improving the design of trains through the 1980s that they wanted a train to be secure with power-operated doors, with no hazards. The objective is to try and eliminate hazards in design rather than introduce risk for the staff who work those trains. Of course, if you have a window then there is that residual risk of the guard being attacked whilst they are looking out of the window at certain stations."
". . . it definitely would not be cheap"
He referred to the risk as a "very, very small level of risk".
"It is not an event that I personally have ever come across in all my railway career. And it is not one that I have ever heard discussed with the people who I deal with. It is definitely not on the radar for the industry. I am not saying that there has never been an incident of this nature before but the kind of incidents that you get are not of this type."
Conclusion on second issue
Contributory negligence
Result
Lord Justice Hooper :
Lord Justice Wilson :