RAIB investigation - Hayes and Harlington, 25th July 2015

[whole diary]

[ChrisB]

Reviewing that, this would seem to explain why thy have prosecuted

The second [learning point] concerns the potential for drivers to be distracted by the use of mobile communication devices while driving. The third emphasises the importance of train operators having the necessary processes in place to identify drivers who are showing signs of sub- standard performance or not engaging positively with measures agreed as part of a Competence Development Plan. It also highlights the need to provide briefing and guidance material for driver managers to enable them to identify behaviours and attitudes which are inconsistent with those expected of train drivers.

no doubt the details behind these will come out at the trial.

[TonyK]

One thing is for sure: that particular passenger will never try to get on a train when the doors are closing again.

We will see what happens. Having read the RAIB^▸ (Rail Accident Investigation Branch) report, I can see reasons for a verdict going either way - but that will not be part of the evidence. It does say that the driver had sent or received text messages while driving - not sensible and forbidden by FGW^▸ (First Great Western) - it doesn't say he was using it at the time of the accident. In fact, the RAIB investigation shows he wasn't, which is what the court will hear.

Guilty or not guilty, the driver will presumably be subject to a FGW disciplinary process after the case is over. He probably won't be alone given the initial inaction after the incident.

[John R]

Guilty or not guilty, the driver will presumably be subject to a FGW^▸ (First Great Western) disciplinary process after the case is over. He probably won't be alone given the initial inaction after the incident.

The report notes that he no longer works for GWR^▸ (Great Western Railway).

[ellendune]

I think it is important to understand that this case does

and the Merseyside case http://www.bbc.co.uk/news/uk-england-merseyside-20339630

Does influence how rail workers feel about DOO^▸ (Driver-Only Operation (that is, trains which operate without carrying a guard)) and therefore affects the ongoing Southern Dispute

The technical background is in the RAIB^▸ (Rail Accident Investigation Branch) report.

The list of related incidents on p32-33 is quite long. 

[TaplowGreen]

Guilty or not guilty, the driver will presumably be subject to a FGW^▸ (First Great Western) disciplinary process after the case is over. He probably won't be alone given the initial inaction after the incident.

The report notes that he no longer works for GWR^▸ (Great Western Railway).

Having read paras 85-89, I'm sure that is a relief to all concerned.

[TonyK]

The report notes that he no longer works for GWR^▸ (Great Western Railway).

Having read paras 85-89, I'm sure that is a relief to all concerned.

The unasked question will be how widespread the practice is. However, unless he has hired rookie lawyers to represent him, the court will be told, if the phone is mentioned at all, that his phone was switched on in contravention of company rules, but forensic examination has shown that he did not use it to make or receive a call or send or receive a text at any time that he was at the station where the accident occurred. What he was doing before the incident is not relevant unless you are trying to show him to be a habitual rule breaker, in which case he still wasn't using his phone when it happened.

imagine a different scenario: "The defendant was often seen making cutting actions with a sword in the street, contrary to the law on sharp instruments in public places, but evidence shows he wasn't doing it when the unfortunate victim became detached from his head." What he did wrong before didn't have a bearing on the incident.

[ChrisB]

But that doesn't absolve him from the suggestion that he may have been reading the final text received at the station, as it had recently been received & it has been shown that he has been attending to texts while on this journey.

Does influence how rail workers feel about DOO^▸ (Driver-Only Operation (that is, trains which operate without carrying a guard)) and therefore affects the ongoing Southern Dispute

Which is exactly why Southern has offered their drivers indemnity against them falling foul of this problem except where they are criminally at fault

[ellendune]

Which is exactly why Southern has offered their drivers indemnity against them falling foul of this problem except where they are criminally at fault

I think the Merseyside case is one which some might see less justification for criminal action and therefore this indemnity was less reassuring.

[Tim]

Which is exactly why Southern has offered their drivers indemnity against them falling foul of this problem except where they are criminally at fault

I don't understand how that would work.  Say a staff member breaks a regulation and something (potentially) dangerous happens.  What punishment can they get?

Either it is criminal in which case there is no indemnity (nor can their be) or it is an internal disciplinary matter.  If it is the latter are Southern really saying that they will ignore disciplinary procedures after a dangerous occurrence?   Have they waived the right to retrain, redeploy  or sack a seriously dangerous member of staff?  If they have then how is Southern meeting their duty under the H&S^▸ (Health and Safety) Act to ensure a safe workplace? 

 

[ChrisB]

I'm assuming that (re-) training is still enforceable, but no further disciplinary action to redeploy/sack or otherwise (financially) discipline is what is covered by the indemnity

[TonyK]

But that doesn't absolve him from the suggestion that he may have been reading the final text received at the station, as it had recently been received & it has been shown that he has been attending to texts while on this journey.

"Your Honour, I object to my learned friend's clumsy attempt to suggest that the driver was doing something for which there is absolutely no evidence - indeed, there is evidence to the contrary."

Which is exactly why Southern has offered their drivers indemnity against them falling foul of this problem except where they are criminally at fault

If push ever comes to shove, Southern will sit n their hands until the driver has been put through the mill. Then their insurers will try to blame everybody but Southern before settling. True, the driver will not be held liable to pay damages himself in a civil case because of the indemnity, but he wouldn't be even if he acted criminally. Few drivers have the resources to compensate injury victims, so Southern's insurers would still pony up. If the driver was found not to be responsible because of something relating to DOO^▸ (Driver-Only Operation (that is, trains which operate without carrying a guard)), then Southern would be liable in all likelihood anyway. So the indemnity changes little.

[Tim]

I'm assuming that (re-) training is still enforceable, but no further disciplinary action to redeploy/sack or otherwise (financially) discipline is what is covered by the indemnity

Still sounds dodgy.  What if the training and assessment shows that, perhaps though no fault of the individual involved, they simply are not cut out to be a driver.  Would they really be a bar on redeploying them?  And if they were redeployed (say to the ticket office or barrier line) would they really be able to keep on drawing a driver's pay?  I'm sceptical that the indemnity can mean anything more than "we promise to be sympathetic and try and support staff who make mistakes" which is perhaps what they ought to be doing anyway.

[JayMac]

If some one is not cut out to be a driver then that should have been picked up in the application, assessment or training phases. To be passed competent and then discovered to be lacking in ability would be extremely unlikely.

Train driving is probably second only to commercial airline piloting in terms of the rigourousness of the application and training process.