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Network Rail fined £1 million for double fatality

Network Rail recently submitted a guilty plea to threecharges brought by the Office of Rail Regulation (ORR). The charges related tobreaches of health and safety laws that led to the death of two teenage girlsat Elsenham station footpath crossing in Essex, in December 2005.

Network Rail admitted failing to carry out a sufficient riskassessment, failing to properly control protective measures at the levelcrossing and failing to prevent the girls from being exposed to risks to theirhealth and safety – contrary to the Management of Health and Safety at WorkRegulations 1999 and the Health and Safety at Work etc Act 1974.

The charges were brought despite a January 2007 Coroner’sverdict of ‘Accidental Death’ and the closure of the ORR’s investigation thefollowing May. The ORR re-opened its investigation when further Network Raildocuments were brought to its attention in 2011, which included riskassessments carried out in the years prior to the incident. It was heard thatone risk assessment conducted in 2001 described the wicket-gate pedestriancrossing as "undesirably risky".

Judge David Turner QC sentenced Network Rail to a £1m fineand ordered it to pay costs of £60,000. At sentencing, he remarked that NetworkRail had demonstrated "narrow thinking, culpable corporate blindness and acomplacency going beyond merely inefficient incompetency to entering the realmof criminal failure".

The ORR has shown a willingness to review past incidents andpursue prosecutions many years after the event. It successfully prosecutedNetwork Rail in 2011 in respect of the 2002 Potter’s Bar crash, leading to afine of £3m fine. The case also highlights the duty on all employers – not justrail operators – to take into account risks to the general public arising fromtheir undertakings and to address any risks that are identified in a timelyfashion, relative to the seriousness of the risk. That Network Rail was awareof safety concerns years prior to the incident, but had failed to properly act,was likely an aggravating factor on sentencing.

This article first appeared in Law-Now, CMS CameronMcKenna's free online information service, and has been reproduced with theirpermission. For more information about Law-Now, click here.

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