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Duty of care

Trespassers owed a duty of care

Two boys were electrocuted when they illegally entered a rail freight yard. What responsibility did the yard’s operator have towards them as trespassers?

In June 2014, four children aged between eleven and 13 trespassed on a rail freight yard in Gateshead. After visiting a disused signal box, they explored other parts of the site. Two 13-year-old boys climbed onto a stationary wagon, which was due to leave the depot as part of a 22-wagon train later that evening. While they were on its roof, they came into contact with a live 25,000-volt overhead power line. One boy suffered life-changing injuries that resulted in him losing part of both legs and seven fingers; the other escaped with minor burns. 

The Office of Rail and Road (ORR) has responsibility for investigating and enforcing health and safety incidents in this sector. It found that the site operator, DB Cargo (UK) Ltd (DBC) knew that trespassers frequented the yard. There was graffiti on the buildings, evidence of fly-tipping and vandalism, and reports of drinking and drug-taking occurring on the site. One of the girls present at the incident told the ORR that she used to go there daily. 

Despite being aware of trespassers accessing the site, the yard was not fully fenced off. There was no security patrol or warning signs to deter trespassers at the children’s point of entry. The disused signal box had been identified as high-risk and earmarked for demolition for over a year before the incident. However, it was not demolished until four months afterwards. 

DBC pleaded not guilty but was convicted after a trial of breaching its duty under s.3(1) Health and Safety etc. Act 1974 to ensure that non-employees were not exposed to risks because of its activities. 

 

The yard operator had a duty towards the children because they were non-employees who could be put at risk by its activities, even though they were on site illegally. The operator knew that the yard attracted trespassers and should have taken steps to prevent access and warn of the dangers.

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