For employees or sub-contractors, working trackside on the railway can be a very dangerous environment. The most obvious risk is being struck or involved in a near miss with a train. Employers will also use heavy machinery on a regular basis which can result in a significant injury or prove fatal if used incorrectly.
BLM has dealt with personal injury claims within the rail sector ranging from spinal injuries caused by lifting heavy equipment to limbs being trapped when using a D75 track loader, which is similar to a JCB digger. To avoid or reduce the risk of such accidents occurring it is imperative the task is planned correctly and part of that planning should involve assessing the risk of injury.
What should your risk assessment include?
An employer is required by law to protect employees from harm. The key document when defending an employer’s liability claim is the risk assessment. The assessment should;
- Identify what could cause the injury – are all moving parts fenced off / do guards need to be fitted?
- Decide how likely it is the employee could be harmed and how seriously – if the risk of a serious injury is high the court will expect additional control measures to be put in place.
- Take action to eliminate the hazard or control the risk e.g. additional training, issue of personal protective equipment, install ‘dead man’ switches.
A review of previous accidents and ill health records will assist in identifying hazards. The workplace needs to be considered carefully so for example:
- Night time working – any assessment will need to consider adequate lighting. Consideration also needs to be given to working in cold conditions, does any extra personal protective equipment need to be supplied, such as gloves?
- Machinery – what specific risks are posed by the machinery being used? Are adequate guards / protection in place? Do employees have the relevant competencies to use the machinery? Do ‘lookouts’ or banksman need to be appointed?
- If sub-contractors are being used how will the main contractor ensure the labour being supplied is competent? How will communications between the sub-contractor and main contractor employees be managed and what risks will be posed if those communications break down?
It is important to remember that extra measures may need to be introduced for ‘vulnerable workers’ such as young or inexperienced members of the team. Can they be paired with a more experienced member of the team?
- What safe or unsafe work practices exist?
- Can work can be undertaken on closed railway lines? If not the employer should identify the early warning systems available and confirm which one should be used. This could involve a system of lookouts, fixed or portable automatic systems.
Assess the risks
It is important to identify who could be harmed and how serious it could be. In assessing the level of risk the employer should decide:
- who might be harmed and how;
- what control risks exist already;
- what further action is needed to control the risks;
- who needs to carry out the action; and
- when the action is needed.
Control the risks
The court will expect the employer to have considered if the hazard could be removed altogether e.g. installing a guard so moving parts are not exposed. If the risk cannot be removed the employer will need to consider how to control the risks so the harm is unlikely to occur.
Issues the employer will need to consider are:
- redesigning the job;
- organising the work to reduce the exposure e.g. can track work be undertaken at night to reduce the risk of near misses with trains?;
- identify and implement the measures needed to work safely; and
- provide personal protective equipment and ensure employees wear it.
An employer will not be able to eliminate all risks but the assessment must prove the employer has done everything ‘reasonably practicable’ to protect employees from harm.
Review the assessment
We would recommend you review the assessment annually and confirm any findings, even if to record no changes have been made. The employer should speak to its workforce to see if they have spotted any problems or if there have been any near misses which may not have been recorded.
The person undertaking the risk assessment ought to have a health and safety background because if it’s found, at trial, the person undertaking the risk assessment is inexperienced there is a risk the assessment will be deemed unsuitable. If the risk of suffering a severe injury is high, the individual performing the risk assessment should be experienced.
Failure to carry out a risk assessment will make it very difficult for the defence to succeed. The employer will need to persuade the court that the absence of any risk assessment has not caused or contributed to the accident. Although not impossible, this can be a very difficult hurdle to overcome.
In Boyd v Farrens Construction Ltd  the claimant was injured whilst reversing a dumper truck which was fitted with one pedal which acted as an accelerator when depressed and stopped when the pedal was not depressed. A generic risk assessment had been carried out but no assessment of the particular operation. The claimant was an experienced employee and was trained on how to use the truck. The defendant argued the accident was a simple case of driver error. The Judge agreed stating “I do not consider that there was any breach by the defendant of its statutory duties save in respect of its failure to provide a sufficient and suitable risk assessment ….. I do not find that this failure was causative” of the accident.
The Boyd case should not be taken as authority that risk assessments do not matter. In Allison v London Underground Ltd  the Court of Appeal stressed the importance of carrying out a suitable and sufficient risk assessment stating:
“Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.”
If a detailed, suitable risk assessment has been undertaken, the court is more likely to accept that the employer takes the health and safety of its employees seriously.
In Prior v Forth Boat Tours (2021) Sheriff Personal Injury Court, a pleasure cruise business was not liable for personal injury suffered by an employee who was injured when he tried to manoeuvre a trolley down a steep ramp. The defendant had carried out a suitable risk assessment identifying the relevant risk and introduced appropriate control measures. The claimant had received adequate training and the trolley was suitable for the task. This Scottish case highlights the importance of having a risk assessment in place.
It is important the risk assessment is adhered to. In Walsh v CP hart & Sons Ltd  the claimant fell off the back of a box van whilst making deliveries. The tail lift on the vehicle had been lowered by the claimant and when he stepped backwards he fell suffering a serious head injury. A risk assessment had identified the risk of working at height and operation of the tail lift. The defence succeeded at first instance. On appeal it was found the risk assessment failed to identify the risk of leaving the tail gate in a raised position and this should have been addressed by the employer pre-accident and the failure to do so mean it was liable to the claimant. The claim succeeded but contributory negligence was assessed at 50%.
If a defendant has in place a suitable risk assessment that identifies the risk, puts in place appropriate controls which are then followed, they will significantly increase their chances of successfully defending a claim for damages.