Chief Inspector of Railways Vic Coleman was delighted by last November's Court of Appeal ruling that health and safety fines were too low. The landmark decision, in the case of the Health & Safety Commission prosecution against Howe & Son (Engineers), offered the first legal guidance on how penalties should be assessed, and since then record fines have been doled out for rail-sector incidents.
'People say there were companies out there who would trade occasional bad news in the courts with what is needed in day to day control, and accept the occasional fine,' says Coleman. 'This culture is going to be further undermined. There's now no doubt at all that where significant failures occur, courts are going to back the Inspectorate when it brings cases to them.'
He adds: 'Courts have found it difficult to benchmark penalties appropriate to the level of the offence.' The Howe case set a precedent. 'It ruled that if there was potential of great harm being caused, a meaningful fine should be levied.
'Fines are also beginning to reflect the size of the company. Some fines in the past may have seemed big but to a big organisation it's tea money.'
Coleman claims that had Balfour Beatty's recent £500,000 fine for a derailment at Rivenhall in Essex been decided before the ruling, months of painstaking work could have ended in frustration.
'We have had a view for a long time that the kind of fines levied did not reflect the severity of cases bought before the court,' he says. 'There's no point in bringing cases if our enormous effort to get evidence beyond reasonable doubt doesn't end in the levy of a reasonable fine. In severe cases, low fines have undermined the validity and strength of the law. Incidents in the past just as bad as Rivenhall have gone relatively unpunished. 'The Rivenhall derailment was a very serious offence. Any accident involving bridges can have horrific effects. At Rivenhall we felt a seven figure fine was justified, but a £500,000 fine after mitigation was fair to all.'
Coleman has not been discouraged by a recent Rail Inspectorate prosecution against Jarvis which resulted in a 'disappointing' £10,000 fine. A set of points incorrectly wired on track between Coventry and Leamington 'had potential consequences as serious as Rivenhall', but the fine was a 'matter for the courts'. Despite the blip, Coleman says rail maintenance contractors have stopped to reassess their positions and he hopes this will lead to better management of risk and higher competence of workers on the line.
He says: 'Management will need clearer objectives about what they are trying to achieve on the line and what the systems are to deliver it in practice. They will need more contact with the core people on the ground to understand their problems. Contractors won't get away with doing anything else.'
Human competence was an area where Coleman admitted he would probably never be wholly satisfied. He says: 'We have seen increased casualisation since the demise of BR, especially people drafted in for short duration at short notice. Railtrack is putting a great effort into competencies on the network. Contractors have got to grasp this nettle.'
Murmurings of higher insurance premiums and supervision costs among contractors (NCE 25 March) does not impress Coleman. He insists: 'If contractors approach things in the right way they should not feel concerned about higher fines. But if they are worried about investing more money in supervision, what does that say about their approach to safety?'
Coleman concedes that years of flux in the rail industry have not helped foster higher safety standards, but adds: 'The culture of safety has been picking up since the early 1990s.'
'The Clapham disaster provided a massive kick to the system and marked the beginning of formal safety management systems. But it puts an even greater responsibility on management to think through the consequences of change.'
Coleman says a tighter regime is required in which 'contractors need to understand they are not just providing a finished product but a product requiring continuing safety in use. Until we get to the stage where we are happy, we have to keep up the pressure.'