How resolute the resolve to prevent disaster?
Risk, predictability and contrition considered
Image: rescue workers at Trafo, Zwevegem, Belgium, on 26 April 2023 (VRT NWS).
“You can assume that everything is safe, but you can never rule out all the risks, not even on the ground.”
The law of negligence is a shape-shifting creature. It has to be: it constantly has to marry established principles of liability with the particular facts of a case. Negligent is he who failed, in breach of a duty of care that was incumbent upon him, to take into due consideration the fact that the victim was within contemplation as a potential victim of his negligence, where the victim did in fact fall victim to his negligence and thereby suffered loss. And the liability is the measure of the loss, where other factors do not obtain that would invite a punitive award against the culprit.
The first hurdle, therefore, is proving that the victim is within the class of persons to whom the culprit owes a duty of care, a duty not to be negligent. This may seem straightforward and will be in many cases: a bus company owes a duty of care to its paying passengers, a school owes a duty of care to its pupils, and a lawyer owes a duty of care to their clients. But the grey area is extensive, and can arise when the party claiming the protection of a duty of care takes less care of themselves than they expect to be forthcoming from the party on whom a duty of care is incumbent. And a dividing line is drawn between the boisterousness that can be contemplated of a bus passenger, of a school pupil and of a lawyer’s client in determining what precautions are expected in order to fulfil the duty of care in question. A bus moves, and so a bus must provide suitable places to hold on whilst the vehicle is moving; a school does not move but children can tend to be more unpredictable than adults, and take fewer precautions themselves for their own safety. Lawyers’ clients are grown adults, and so safety precautions such as might be found in a school are not imposed as a reasonable measure in fulfilment of their duty of care.
The citation at the start of this article is of words spoken, in Dutch, by Hendrik Vandermarliere, who is employed by The Outsider, which is a Belgian operator of adventure parks. He continues: “While playing football you can also run into someone else or sprain your foot.”
I have to say I find the analogy unhelpful. While it is no doubt true that football poses its own risks of injury, some similar to and some different from those posed by abseiling down a line from a high tower, it is less the risk that defines the attention needed in contemplating it that matters, and more the severity of the consequences arising from its realisation. One man’s risk may be another man’s daily work, but the realisation of the risk common to both will often be the same: a sprained ankle, or death. It is rarely the latter that is contemplated in the case of playing football. In the case of abseiling down a line, it’s commoner. And it has happened, yesterday, in Zwevegem.
Our contemplation of risk is notoriously erroneous. The classic assertion that flying is safer than crossing the road may be true, and being struck crossing the road is no guarantee of merely light injuries, but the conception, and hence the contemplation of injury from being hit by a car, is generally less serious than being the occupant of a crashing airliner.
In India, the roads pose their own dangers, especially those that dramatically form the country’s land links to its northern neighbours; but so do the railways. In 2021, over the year as a whole, fatalities on the railways in India (aside from injuries) totalled just short of 12,000, of which 67.2% (around 8,000) were of persons near railway tracks or crossing them or falling from trains. The Indians have a reputation for taking their railway operations seriously. Just how these 8,000 persons died isn’t clear: whether due to their own fault or as a result of negligence by the railways. No matter how dutifully one operates a railway, however, there’s more scope for accidents from infrastructure failure in India than in, say, Switzerland, quite aside from considering the duty that lies on a railway operator to foresee and actively thwart acts of stupidity that can be expected from passengers and other persons generally (e.g. by the UK’s law that all railways must be fenced).
Wagon wheels used to be tapped by a specialist wheeltapper before trains departed. A dull ring would indicate a broken wheel, and that could have catastrophic consequences if the tyre unravelled and the wheel disintegrated, causing a derailment. Wheeltappers are relatively rare nowadays, having been superseded by detectors and maintenance programmes. However, the 1998 Eschede railway disaster in Germany took the lives of 101 persons, and was directly caused by a cracked wheel. The question for Deutsche Bahn in its aftermath was: what price absolute safety?
A year before the Eschede disaster, Hanover’s tram corporation, Üstra, had noticed cracks developing in a similar type of wheel as used by Deutsche Bahn, mounted on its tramcars, which ran at a speed of 15 m.p.h., and started an extraordinary replacement programme, not required by law. They told other wheel users of their action and, they say, were told by Deutsche Bahn “that they had not noticed problems in their trains.” Whilst Deutsche Bahn had received reports of vibrations in some ICE trainsets, they resolved this using a new design of wheel that inserted a rubber tyre between the wheel and its outer, metal tyre. It was such a wheel that disintegrated at Eschede, not at 15 m.p.h., but at 120 m.p.h. Deutsche Bahn had conducted tests of the bogie with the fault on three occasions — albeit not at speed — but did not replace it, saying afterwards that “its inspections were proper at the time and that the engineers could not have predicted the wheel fracture.”
Negligence is failure to contemplate the danger posed to a victim to whom a duty of care is owed. But whether it is constituted by the ability to predict the realisation of the risk is a moot point. Deutsche Bahn has many trainsets similar to the one that crashed in Eschede. It had done much work on refitting wheels and continued to do so after the disaster. It’s true: nobody expected them to be able to predict when a wheel would disintegrate. But Üstra, for their part, hadn’t wanted to wait until they needed to predict a wheel’s disintegration: they’d changed them anyway. Prediction is a different challenge to preventing something’s occurrence.
Those who survived Eschede and the relatives of those who died received compensation from the railway company. Those who died are remembered in a memorial. Memorials are a means for those affected by a tragic event to think on those who suffered. Some of them are an outpouring of public grief. The German word for a memorial is a Denkmal: it means ‘pause for thought’. There is another word, which is used in relation to its former concentration camps: Mahnmal. That means ‘pause and be admonished’.
The 101 cherry trees at Eschede are a Denkmal. But, whilst the culpability of Deutsche Bahn for the loss of 101 lives among its passengers and staff was less than it might have been found to be (based partly on the ‘predictability’ argument – there was a court case but it settled with a plea bargain), the Eschede memorial is not regarded as a Mahnmal, owing to the lower threshold of culpability in causing the accident.
Every November, or on some other designated day, many countries turn their minds to the victims among their populations of warfare. At the going down of the sun and in the morning, we will remember them: thus goes Laurence Binyon’s poem For the Fallen. If the Eschede memorial, which was erected by Deutsche Bahn, serves a purpose, what is that purpose?
It acts a marker: anyone who happens to pass there can see that the trees mark a place where a railway accident occurred.
It is to that place that friends and relatives of those affected can come and contemplate their loss; the loss to Germany of these people; the loss to the world.
Whether it constitutes an act of contrition is less obvious. Deutsche Bahn repelled any accusation that it had been negligent. Therefore, it had nothing about which it needed to be contrite, did it?
Still less is it an apology. If contrition is absent, then an apology is unwarranted. Apologies are often regarded as “wiping the slate clean”, but they’re not. They are an admission of guilt, in the first place; but they are not God’s absolution. Their construction is nestled somewhere between those two extremes. An apology that is demanded may appease, but extracted apologies are not given voluntarily, by definition, and so their value is open to question.
What the memorial itself decidedly isn’t is a promise to do better. The railway company is not blithe to the fact that it was its wheel that caused the crash. And it has since taken the lessons from Eschede on board in designing its trainsets. But the memorial isn’t an undertaking by it to do so. That is a question more allied to matters of business policy and reducing the loss sustained from ripping up its tracks, destroying its bridges, reducing eight carriages to the length of one, and killing 101 people. That is why they wanted to improve their bogie design: to prevent all that destruction. So, a conundrum: if they redesigned their trains because of the predictability of a crash, why wasn’t the crash predictable before it happened? Simply: because it hadn’t yet happened. The wheels had not been tested at speed until one broke. That was the test. You might think that it is all the more predictable that something that has not been tested may fail. But, because predictability is a function of empirical experience, the lack of the one, leads automatically to the lack of the other. What Deutsche Bahn did to deny its culpability was engage in sophistry. And it worked.
So, what of the war memorials that people attend in November each year? If future note were to be taken of such things, who would be taking it? And to what end?
In large part, Remembrance Day is a ritual, not unlike going to church, which is attended by those whose attendance is expected, as well as by those who feel a purpose in being there. Many who attend, however, walk past the memorial on the other 364 days of the year and give it not a thought. The Congress Column, where the Eternal Flame burns in Brussels, bears an inscription exhorting passers-by to remove their headgear. I’ve done so, out of respect for the tradition; and doing so removes the passer-by from the workaday routine that passing the column can form. It is in fact much closer to the notion expressed by Binyon, to remember the fallen at the going down of the sun and in the morning and not simply once every 11 November.
Do those who attend Remembrance Day ceremonies then resolve, as they head homeward, that there shall be no more war, and to fight not in war but in the prevention of war? Let us suppose that, after the disaster in Eschede, Deutsche Bahn had made no moves whatsoever to upgrade its trainsets, and had not even contributed to laying out the memorial site: would people have railed against them, accusing them of nonchalance and insisting on their negligence, a lack of foresight, a denial of predictability, for not fulfilling their duty of care to passengers and permanent way workers alike? Would they say that the accident proved that the occurrence of the risk is all too predictable, now one train had crashed so disastrously?
What, then, if Deutsche Bahn had simply said that the risk is known and could occur again? And that people needed to accept that, if they travel by rail, trains will occasionally have accidents? And perhaps adding that, even playing football, “you can run into someone else or sprain your foot.”
Just how the man who fell from the adventure park attraction in Belgium yesterday came to fall from it, is yet to be ascertained. That the attraction was dangerous is confirmed by the safety procedures that the operator had put in place. Mr Vandermarliere is correct: football is a game that can end in injury; however, he seems to say that The Outsider is under no duty of care to rule injury or death out completely. It is a similar stance to politicians whose countries go to war, and our acts of remembrance may give us great solace, but they do little to prevent future wars. Isn’t an act of remembrance tied up with the notion of apology? We’re sorry you had to die. And isn’t that then tied up with resolve for the future? We’ll make sure it doesn’t happen again.
Deutsche Bahn’s stance was different, and can be summed up as being that they didn’t know whether or not their train design would cause an accident: they would wait and see. Well, they saw, as 101 people perished in their train. And The Outsider has seen, as did many of the youths in the man’s care, who watched him plummet to the ground and need counselling as a result, how he fell to his death; from their unfortunately named Deathride.
The issue with The Outsider is not that it caused the man’s death. That is not, as yet, established. The issue is the vehemence with which The Outsider, rail companies, tram companies, political representatives will in future strive to rule risk out, once predictability has been concretised. Deutsche Bahn strove to do so, but denied culpability; Üstra strove to do so without so much as entertaining the possibility of culpability; warmongering politicians bow solemn heads in remembrance; and fail to prevent wars.
What price a train crash?
What price tramcar safety?
What price a youth monitor’s life?
What price a war?
And, whatever the price is, how quickly do we forget paying it?
Belittling the risk does not deny predictability (in a way, for The Outsider, adventure actually means risk). And belittling it is certainly no contribution to any form of memorial. I wonder if The Outsider will erect one:
“Here, on 26 April 2023, a 24-year-old man fulfilling his duties as a youth monitor did fall to his death from this Deathride attraction. At the going down of the sun and in the morning, we will remember him.”