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January 2010
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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1.
General point: “Force majeure |
AD11 |
January 1997 |
The
Committee reminded the Industry that it is not appropriate to attribute fault
to an external “force majeure” because the Passenger Track Access Agreement
is framed in a way which does not admit, for the purposes of monitoring of
train performance, any concept of “force majeure”. All forms of train delay must, by definition, be attributed
either to the Train Operator named in the individual Track Access Agreement,
or to Railtrack. This does not
however, prevent specified delays from being attributed on an allocation of
shared responsibility. {AD11} |
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AD11 |
January 1997 |
There is an obligation on
the parties to a Passenger Track Access Agreement "to take reasonable
steps to avoid and/or mitigate the effects of incidents" (including loss
of adhesion). {Schedule 8 Clause
5.3a} {AD11} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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Differential Timings in the Working Timetable |
AD15 |
March 1998 |
The
Committee considered a reference in which specific matters of interpretation
of Schedule 8 were raised, and there was potential linkage with proposed
amendments to the Rules of the Plan.
The Committee decided that any decision as to whether, in future, a
Passenger Timetable should show different times for arrival at final
destination from those in the Working Timetable, was a matter for the
commercial judgement of the Train Operator alone, where it related to matters
of passenger perception and not to achieving any real difference in
operational reliability. The
Committee also concluded that achieving alignment of the Passenger Timetable
and Working Timetable, where these had not previously been aligned, would
potentially affect the calculation of sums payable under the Performance
Regime. It noted that there was
nothing in the Track Access Agreement that placed any explicit restraint on
achieving such an alignment, or required that such a re-alignment should
precipitate any consequential re-adjustment to Schedule 8. The Committee concluded that any such
re-alignment, like any change to the Rules of the Plan, must meet tests of
reasonableness. {AD15} |
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Disruption |
AD16 |
May 1998 |
The Committee reminded the industry about inbuilt
tests provided for in the contracts, for example whether or not, during the
time that services were disrupted, any passengers who wished to commence or
finish journeys at an affected station were prevented from so doing. In
a case relating to train delays resulting from a fatality on tracks within
station platforms, the Committee decided that a Train Operator’s duties as an
operator of stations are entirely discrete from its role as “an operator of trains”, and that
paragraph 5.5(b) of Schedule 8 was not therefore applicable in the particular
circumstances. {AD16} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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Passengers’ Charter |
AD23 |
March 2001 |
Although
the provisions of paragraph 20 of Schedule 8 are common to all Franchise
Passenger Track Access Agreements, the application in respect of liabilities
that can be recovered from Railtrack have to pass specific tests. Of these the most difficult about which
to be precise is that paragraph (20.9) which lays down that “…in determining whether the Train Operator
is required to offer an extension or discount under a Passenger's Charter due
regard shall be had to the custom and practice of the Train Operator in
connection with its Passenger's Charter as at [the date this schedule came into force]…”. This test requires there to be a benchmark
period, for which there need to be available full records of
performance. Even then the matter may
be susceptible to divergent interpretations.
In its Determination AD23 the Committee were faced with the
circumstances where the period for which compensation was being sought, the
immediate aftermath of Hatfield, was one of a level of performance for which
there was no obvious comparator in the benchmark period. The Committee chose to interpret such
pointers as were in the benchmark period, and therefore sought to provide the
parties with a framework for negotiating a reasonable settlement of
differences consistent with both the terms of the agreement, and the
circumstances of the case. |
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Paragraph |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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5: Allocation of responsibility for Minutes Delay
and Cancelled Stops |
ADP39 |
July2009 |
23.3.
the duty that is imposed upon the driver by the Rule
Book in the event of fog is not to reduce speed; it is rather a duty to make a judgement in the circumstance “if
you cannot see the signals at the normal distance during…-fog” and then to make the consequential
judgement as to whether, or by how much, to reduce the speed of the train (“You
must reduce the speed of your train as you consider necessary
[emphasis added] if you cannot see the signals at the normal distance
during-fog”); 23.4.
the First Scotrail Professional Driving Policy
expresses the same idea in a similar way (“When the sighting of signals or
speed restriction indicators is being impeded by fog or falling snow, you
should reduce the speed of your train as necessary.[emphasis
added]): the driver is accountable for assessing the situation, and
making the appropriate “necessary” response, on the basis of his or
her professional competence. 23.5.
in one instance the Rule Book does prescribe a
specific response that does not require the driver to exercise his judgement
(“You must not exceed 40 mph during fog or falling snow on a line where
AWS is not provided on the line of route, or is not in use on the train”):
this is not applicable to the circumstances of this case; 23.6.
the responsibility for ensuring that all Train
Operators work to a common set of Rules, aimed at achieving consistent safe
outcomes, lies with Network Rail.
However 23.7.
the responsibility for translating the achievement
of those outcomes, insofar as they impact upon the ways in which trains are
driven, is a matter for the Train Operator, which bears the responsibility
for assuring that its employees (in this case its drivers) are trained,
supervised, and maintained to the necessary level of professional competence
to meet its obligations to Network Rail; 23.8.
if that larger responsibility for the professional
competence of its drivers lies with the Train Operator, it must follow that,
if the proper discharge of that professional competence results in a train
delay, then that delay is inevitably within “the control of the Train
Operator in its capacity as an operator of trains”, and therefore the
attribution of the delay has to be to the Train Operator, in accordance with
Passenger Schedule 8 paragraph 5.3. 23.9. by
contrast, Network Rail has no control over the nature or quality of the
judgements to be made by the driver, either on the day or in the formation of
the relevant professional competence.
Furthermore, in this instance, Network Rail has not failed in any
respect in the normal operation of the Network, that would justify these
delays being attributed to “circumstances within the
control of Network Rail in its capacity as operator of the Network”. It would therefore be quite wrong to
designate these delays “Network Rail responsibility
incidents”. |