Published: 11:22, 13 December 2018
| Updated: 19:59, 13 December 2018
Network Rail was today fined £200,000 over safety failures which led to an employee suffering serious injuries at a manual level crossing.
The public organisation, which will also have to pay costs of £86,389, could have been hit by a maximum financial penalty of £750,000.
But a judge said it had been pointed out that Network Rail was "an arms-length central government body" and the majority of its income was from public funds.
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“Any financial penalty I impose today, it is submitted, will reduce Network Rail’s ability to generate profits or reinvestment,” said Judge Philip Statman. “Furthermore, it will be paid substantially from public funds.”
But the judge added: “Nevertheless, it is right to say uppermost in the public’s minds must be to send a clear signal to Network Rail that safeguarding workers and the public as a whole is a fundamental duty, and there must be an element in the fine for large companies to understand the grave concern the court has when breaches of this kind occur.”
Maidstone Crown Court heard signaller Doug Caddell had warned about the dangers of cars using the crossing at East Farleigh, near Maidstone, only hours before he was knocked unconscious and suffered a broken neck.
Network Rail was found guilty in May of contravening the Management of Health and Safety at Work Regulations 1999 between February 23, 2014 and April 25, 2015 by failing to make a suitable and sufficient assessment of the health and safety risks to employees.
The jury could not reach a verdict on a second charge of failing to discharge the duty imposed by the Health and Safety at Work Act of 1974 by not ensuring the health, safety and welfare at work of its employees, and a retrial on that charge was not sought.
Mr Caddell had emailed his boss on April 24, 2015, to report that a car drove through the crossing as he was closing the gates.
He made some suggestions to line manager Geoffrey Orman as to how the crossing could be made safer.
But then at about 1.25pm that day a car struck the gates as 65-year-old Mr Caddell was closing them.
He was knocked to the ground and suffered two broken vertebrae in his neck. He was treated in a London hospital until May 9.
“He made good progress but continued to suffer with a number of health problems,” said prosecutor William Davis.
Judge Statman said when passing sentence the breach was continuous and there were clearly insufficient measures in force.
It was clear that such level crossings, which were a legacy of the Victorian age of railway development, would not now be countenanced.
“Anyone visiting East Farleigh would appreciate that the location of the crossing causes traffic difficulties,” said the judge.
“It is on the route of what has been described as a rat run during rush hour. Traffic on either side of the historic bridge can back up.
“Motorists become frustrated and seek to ‘beat’ the barriers. Gates can be closed for eight to 10 minutes.
“It is clear to me a number of risk controls were in place. They have now put in place further measures of risk control.”
There is now a specialist team in operation nationally dealing with level crossing management and training is provided.
Signalmen had considered cars jumping crossing gates as part and parcel of doing their job. They “just got on with their job”.
A census in February 2014 wrongly recorded the amount of traffic at the crossing over a 30-minute period as though it was 24 hours.
“Thus, the traffic at East Farleigh was substantially underestimated in that regard,” said Judge Statman.
“That, it is submitted, is right at the heart of that which I have to deal with in the breach.”
The prosecution submitted there was a high factor of culpability, but the judge assessed it as medium culpability.
“Systems were in place, but they were not sufficiently adhered to or implemented, in my judgement,” he continued.
“We will never know what the jury concluded as to how it came to be Mr Caddell fell to the ground and sustained the injuries.”
The car driver was prosecuted but he died shortly before his court hearing.
Network Rail had previous convictions for health and safety matters and did not appear before the court with an impeccable and unblemished record.
But said the judge: “As railway systems go, our system is second only to Norway in the whole of Europe when it comes to ensuring the safety of the public.”
Several measures had been put in place at the crossing since the incident, including signalmen being able to record drivers who break the law when crossing the barriers.
Network Rail was given 28 days to pay the fine and costs.
Judge Statman said he regarded motorists jumping the barrier at railway crossings “as a very serious matter indeed”.
“Just as we now have an understanding of just how serious it is to drive using a mobile phone, we should be aware, and indeed have an increasing awareness, of the gravity of jumping railway crossing gates in the manner in which I have had to deal with in this case,” he said.
“It is right, it seems to me, that with the additional provision of video equipment, one very much hopes others who are seen to commit this are subject to being immediately reported to the police and, in appropriate cases, prosecuted.”
Ian Prosser, HM Chief Inspector of Railways, said: "Mr Caddell suffered life-changing injuries in this incident and the sentence indicates just how seriously the offence is quite rightly viewed.
"Mr Caddell suffered life-changing injuries in this incident and the sentence indicates just how seriously the offence is quite rightly viewed" - Ian Prosser
“We are absolutely committed to protecting the health and safety of passengers and railway staff and will not hesitate to take enforcement action or to prosecute when necessary.
“Network Rail has introduced safety measures at East Farleigh and we would expect to see proper risk assessments made at similar level crossings up and down the country and necessary safety measures taken.”
Speaking after the ruling, Mr Caddell said: "This has been a very difficult time for me – the accident has left me unable to do everyday tasks like forward planning and I have had to leave my job as a signalman.
"I received help from Headway, the brain injury association – the staff at my local branch were really helpful and I’m grateful for their support so far alongside the RMT and my solicitor at Thompsons."
Nicola Saunders, serious injury Lawyer at Thompsons Solicitors, said: “Network Rail had been warned about near misses at the crossing but failed to appropriately assess and appreciate the risk to staff, exposing Mr Caddell to a serious risk of injury.
"Mr Caddell suffered significant life changing injuries, which he continues to suffer from while he tries to rebuild his life.
"The criminal charges and the heavy financial penalty should serve as a stark warning to all rail employers that health and safety regulations for their workers are not optional, they are life-saving.
"Drivers should also be aware that the court was critical of those drivers who attempt to jump the crossing, exposing staff to serious injuries.”
A spokesman for Network Rail said: "We recognise that the incident which led to this investigation had a serious effect on the health and wellbeing of our signaller, who continues to be a valued member of our team.
“We accept this verdict and have taken action to update our risk assessments and put in place other appropriate risk mitigation measures.
“On top of this, we installed traffic lights after the accident, provided signallers with body cameras and personal protective equipment and improved road markings to regulate traffic more effectively.
“We’re also working closely with the British Transport Police to prosecute drivers who ignore traffic lights at crossings and try to weave through the gates as they’re closing.
“We’re also replacing the manually operated gates with barriers, which signallers can raise and lower at the push of a button, rather than having to walk into the road to operate the gate manually.”