Great Western Coffee Shop

All across the Great Western territory => Your rights and redress => Topic started by: martyjon on March 08, 2018, 06:16:50



Title: Consequential Losses
Post by: martyjon on March 08, 2018, 06:16:50
BBC Radio 4 news summary at 06:00 reports that T & C's are to be revised to give travelers the right to claim for consequential losses.


Title: Re: Consequential Losses
Post by: broadgage on March 08, 2018, 06:28:25
Within reason this sounds a good idea.
There would presumably be a limit on the degree of loss covered.

If due to a failing of the railway, someone misses an airline flight (despite having allowed a reasonable margin) then compensation for the cost of rebooking might be reasonable.

If however a meeting is missed and it is alleged that many £millions have been lost due to a missed business opportunity, then giving the passenger a few million is unrealistic.


Title: Re: Consequential Losses
Post by: NickB on March 08, 2018, 07:11:43
I’d be happy if they just paid for my sodding cab fare to destination after I’ve gotten myself to the nearest working station following an exploding pigeon/derailed train/fire in the basement.


Title: Re: Consequential Losses
Post by: TaplowGreen on March 08, 2018, 08:29:10
Here it is....

https://www.which.co.uk/news/2018/03/train-companies-misleading-claims-to-hit-the-buffers/?amp_markup=1&__twitter_impression=true

......one less hiding place for GWR et al.


Title: Re: Consequential Losses
Post by: grahame on March 08, 2018, 08:34:59
Quote
The Consumer Rights Act (CRA) came into effect for the rail industry on 1 October 2016, however it has taken over a year for the NRCoT to better reflect consumers’ rights.

As well as consequential loss, the CRA means passengers may also be able to claim for poor service.

We found train companies have been giving blanket advice wrongly telling passengers they can’t make a claim, leaving people out of pocket when they could have claimed compensation.

The new conditions of travel should end this misinformation.

Are there any other changes being made in the Conditions of Travel at this time?


Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 09:46:51
Change being made this Sunday. Presumably claims can still only be made where delays etc are under the control of the railway?


Title: Re: Consequential Losses
Post by: Fourbee on March 08, 2018, 11:50:56
So GWR would potentially be on the hook to pay for my £10,000 all-inclusive 1-month stay in Barbados, if I miss my flight from Gatwick?

Good job I didn't book it to start on Monday this week with the cracked points at Wokingham. No spare available, that sounds like without reasonable skill or care...  :D

...then I woke up  ;D



Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 11:57:14
Only if you follow their advice by booking to arrive at the airport at least 4 hours ahead of your flight....

Beware, stuff like this will be forthcoming, simply to alleviate the claims.
Reasonable, in this case - airline advice is for 3 hours ahead of flight to check-in (intercontinental), plus an added hour from the TOC in anticipation of any delay.


Title: Re: Consequential Losses
Post by: grahame on March 08, 2018, 12:11:08
It will be interesting to see the consequences - intended and unintended - of consequential loss coverage  ;D

For example, it might now be in the interest of Train Operating Companies to streamline their systems for backup road transport provision when connections fail leaving people stranded (or for those rare  ;) occasions trains are cancelled).     At present, a s-l-o-w system is in the TOC's financial interest as it means that all but the most hardy (or least well off) find / pay for their own alternatives.   If the taxi fare is reclaimable, though, the pendulum could swing the other way, meaning that in the future, it'll be in the TOC's interest to efficiency fill taxis and get people quickly on there way, rather than having a free-for-all where each passenger or passenger group gets their own taxis and class back ... which would add up to a lot more taxis!


Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 12:59:18
I can't see them entertaining a claim for replacement taxis without a wait of at least an hour frankly. If the next train is due within the hour (some say 90mins) they won't pay - I can't see that changing without an (expensive, relatively) court case.


Title: Re: Consequential Losses
Post by: Fourbee on March 08, 2018, 13:17:04
Only if you follow their advice by booking to arrive at the airport at least 4 hours ahead of your flight....

Beware, stuff like this will be forthcoming, simply to alleviate the claims.
Reasonable, in this case - airline advice is for 3 hours ahead of flight to check-in (intercontinental), plus an added hour from the TOC in anticipation of any delay.

I assume most travel insurance policies broadly operate along those lines for that reason.


Title: Re: Consequential Losses
Post by: grahame on March 08, 2018, 13:40:50
I can't see them entertaining a claim for replacement taxis without a wait of at least an hour frankly. If the next train is due within the hour (some say 90mins) they won't pay - I can't see that changing without an (expensive, relatively) court case.

Oh indeed ... the case I was thinking of was 20 passengers for the 18:38 (Saturday) Trowbridge to Melksham, connecting off the train from Bristol and Bath due in at 18:29 but got there at 18:39.   Kept waiting for onward transport until 19:55, by which time all but 6 passengers had made alternative arrangements, such as taking taxis that were there on the rank.  Next train was due at 08:34 - that's 836 minutes later (well over your 90).

Amount paid out by GWR without consequential damages - around £30
Amount potentially paid out if everyone could have claimed - around £240 (say 8 taxis)
Amount paid out if taxis had been promptly provided and passengers marshalled - £120 (4 taxis)

And if the taxis had been provided with good grace and quickly, it would have been seen far more positively by the 20 people involved, and it would have saved those people their own money and a lot of time and heartache!

I agree that if there's another train due within the hour, little point in providing road replacement. That does not mean that the train operator should make customers wait over an hour for a taxi!!


Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 13:48:08
Unfortunately, yes it can. And the TOCs are likely to agree - as I said, a number of expensive court cases will be needed to get to your position.

#Lewisham on the other hand....four hours in.....SETrains would have been liable for a lot of money....

Bear in mind that NR pay the TOCs compensation for their caused delays, we'll all pay the increased costs, ome way or another, through the increase in National Debt. Paid for by your offspring.


Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 14:16:19
Transport Focus offers their view - which is a tad different to what you are expecting

Quote
The new right could be applied to areas which are currently not covered by the industry’s compensation arrangements. For example, a failure to provide advertised catering arrangements, or reserved seating intended to enable a family or group of friends to sit together, or a failure to warn an intending passenger of longer journeys because of planned engineering works or comfort issues. Claims for consequential losses such as missing a flight would still need to pursued through the courts unless agreement can be reached.
Passengers making a claim of this kind can refer to the Act. However, if they are making a complaint and seeking redress that goes beyond that set out in a Delay Repay scheme or beyond what a train company may have offered in an individual case passengers are going to have to take the train company to court to obtain compensation, as opposed to the relatively simple current arrangements which are dealt with by train companies on a ‘no fault’ basis.


Passengers will generally need to show one of two things. Did the train company (or, for example, Network Rail) provide the service with reasonable care and skill? Did the train company mislead them in some way - was information that they relied on incorrect? In many cases this might be very difficult or impossible to prove.
There are also practicalities that apply to all legal claims. The passenger will have to draft a claim which is legally sound and pay fees to get it issued, and further fees if there is to be a court hearing. Even though virtually all such cases would be dealt with by the less formal Small Claims Procedure we do not think that this will be an easy or user-friendly system, and the fees involved will be beyond the price of many tickets. The passenger will also have to persuade the court that the loss suffered can be quantified (and the fees charged by the court will vary according to the amount claimed).
Part of the package of wider consumer rights includes a cheaper form of legal redress, known as Alternative Dispute Resolution (ADR). This is designed to avoid the need to go to court. Currently ADR is not in use on the railway, but we continue to press for the introduction of a binding dispute resolution system.
Claims that involve novel or substantive legal issues might also be deemed unfit for the relatively fast track Small Claims procedure. They might then be referred to the main County Court system with its attendant fees and the risk that costs might be awarded against an unsuccessful party. Quite a deterrent.
The train companies could also seek to show that their Delay Repay schemes are an adequate compensation method in a mass transport, heavily Government funded and regulated environment. The rail industry Delay Repay schemes go well beyond anything seen in other transport sectors such as aviation. They also go beyond the Act in one important aspect – they offer compensation irrespective of the cause of the delay, you do not have to prove that there was fault (that is, a lack of care and skill).
So, a claim may have to be relatively large or a claimant very determined to mount a successful claim.

The real effect?
Perhaps the most likely effect is a far more subtle one. Strengthening and broadening rail passengers’ rights is welcome. This will focus more attention on the consistent delivery of the basics of train services such as length of trains and information.
Train companies and others are likely to pay far more attention to their written material to make sure what they are promising is clear and deliverable. We will probably see statements on timetables and in other places about the endeavours that will be made to provide the service, but that any disclaimers do not affect passengers’ statutory rights.
Train companies will probably issue stricter guidance to staff about what information to give passengers. It will be even more important, for example, to tell passengers that a bus replacement service is in operation, catering or Wi-Fi is not available or a connecting journey only has First Class for part of the way. If you can argue that you would not have bought the ticket if you had known that in advance then you may have a case. Similarly, if a cheaper ticket was not available on a ticket vending machine or if booked assistance does not materialise could this constitute lack of care and skill?
Complaints procedures might well be given more attention to make sure they provide better explanations to passengers as to why things went wrong. We are already looking at the advice we give passengers (and publish) to see if there is anything we need to tighten up in the light of the new Act. We will start to build up a bank of good practice and procedure. There will probably be more focus on complying with regulatory codes of practice.
Transport Focus, through its complaint handling work, will monitor and report on how the new Act works in practice. Joint working with the Office of Rail and Road will help ensure that existing complaints handling procedures are adhered to and improved.
Once the promised 15 minute Delay Repay trigger is in place we will closely watch its effect. Above all we will continue to press train companies to advertise the fact passengers can claim compensation and monitor and report on take up.
Conclusion
So, does the Act bring about a revolution in rail passenger rights? No, it perhaps modernises them and brings them into line with other consumer sectors. However, it does shine a welcome light on compensation schemes and complaints and helps to remove any temptation to hide behind the ‘small print’. In addition, and perhaps most importantly, it adds more incentive to provide what has been promised to passengers.

My emphasis


Title: Re: Consequential Losses
Post by: grahame on March 08, 2018, 15:30:03
Transport Focus offers their view - which is a tad different to what you are expecting

Quote
Claims for consequential losses such as missing a flight would still need to pursued through the courts unless agreement can be reached.
Passengers making a claim of this kind can refer to the Act. However, if they are making a complaint and seeking redress that goes beyond that set out in a Delay Repay scheme or beyond what a train company may have offered in an individual case passengers are going to have to take the train company to court to obtain compensation, as opposed to the relatively simple current arrangements which are dealt with by train companies on a ‘no fault’ basis.

I suspect that's "much as at present" ... if you can't reach amicable agreement over a claim, you can take it to court.  Perhaps the difference is that the balance has now tipped a bit more in favour of the passenger who's had a lot of extra expenses ... and perhaps to the extent that the rail company could in some circumstances be minded to settle up prior to court.

How does the new rail Ombudsman come into this, if at all?

Edit to correct quoting


Title: Re: Consequential Losses
Post by: TaplowGreen on March 08, 2018, 15:37:24
Transport Focus offers their view - which is a tad different to what you are expecting

Quote
The new right could be applied to areas which are currently not covered by the industry’s compensation arrangements. For example, a failure to provide advertised catering arrangements, or reserved seating intended to enable a family or group of friends to sit together, or a failure to warn an intending passenger of longer journeys because of planned engineering works or comfort issues. Claims for consequential losses such as missing a flight would still need to pursued through the courts unless agreement can be reached.
Passengers making a claim of this kind can refer to the Act. However, if they are making a complaint and seeking redress that goes beyond that set out in a Delay Repay scheme or beyond what a train company may have offered in an individual case passengers are going to have to take the train company to court to obtain compensation, as opposed to the relatively simple current arrangements which are dealt with by train companies on a ‘no fault’ basis.


Passengers will generally need to show one of two things. Did the train company (or, for example, Network Rail) provide the service with reasonable care and skill? Did the train company mislead them in some way - was information that they relied on incorrect? In many cases this might be very difficult or impossible to prove.
There are also practicalities that apply to all legal claims. The passenger will have to draft a claim which is legally sound and pay fees to get it issued, and further fees if there is to be a court hearing. Even though virtually all such cases would be dealt with by the less formal Small Claims Procedure we do not think that this will be an easy or user-friendly system, and the fees involved will be beyond the price of many tickets. The passenger will also have to persuade the court that the loss suffered can be quantified (and the fees charged by the court will vary according to the amount claimed).
Part of the package of wider consumer rights includes a cheaper form of legal redress, known as Alternative Dispute Resolution (ADR). This is designed to avoid the need to go to court. Currently ADR is not in use on the railway, but we continue to press for the introduction of a binding dispute resolution system.
Claims that involve novel or substantive legal issues might also be deemed unfit for the relatively fast track Small Claims procedure. They might then be referred to the main County Court system with its attendant fees and the risk that costs might be awarded against an unsuccessful party. Quite a deterrent.
The train companies could also seek to show that their Delay Repay schemes are an adequate compensation method in a mass transport, heavily Government funded and regulated environment. The rail industry Delay Repay schemes go well beyond anything seen in other transport sectors such as aviation. They also go beyond the Act in one important aspect – they offer compensation irrespective of the cause of the delay, you do not have to prove that there was fault (that is, a lack of care and skill).
So, a claim may have to be relatively large or a claimant very determined to mount a successful claim.

The real effect?
Perhaps the most likely effect is a far more subtle one. Strengthening and broadening rail passengers’ rights is welcome. This will focus more attention on the consistent delivery of the basics of train services such as length of trains and information.
Train companies and others are likely to pay far more attention to their written material to make sure what they are promising is clear and deliverable. We will probably see statements on timetables and in other places about the endeavours that will be made to provide the service, but that any disclaimers do not affect passengers’ statutory rights.
Train companies will probably issue stricter guidance to staff about what information to give passengers. It will be even more important, for example, to tell passengers that a bus replacement service is in operation, catering or Wi-Fi is not available or a connecting journey only has First Class for part of the way. If you can argue that you would not have bought the ticket if you had known that in advance then you may have a case. Similarly, if a cheaper ticket was not available on a ticket vending machine or if booked assistance does not materialise could this constitute lack of care and skill?
Complaints procedures might well be given more attention to make sure they provide better explanations to passengers as to why things went wrong. We are already looking at the advice we give passengers (and publish) to see if there is anything we need to tighten up in the light of the new Act. We will start to build up a bank of good practice and procedure. There will probably be more focus on complying with regulatory codes of practice.
Transport Focus, through its complaint handling work, will monitor and report on how the new Act works in practice. Joint working with the Office of Rail and Road will help ensure that existing complaints handling procedures are adhered to and improved.
Once the promised 15 minute Delay Repay trigger is in place we will closely watch its effect. Above all we will continue to press train companies to advertise the fact passengers can claim compensation and monitor and report on take up.
Conclusion
So, does the Act bring about a revolution in rail passenger rights? No, it perhaps modernises them and brings them into line with other consumer sectors. However, it does shine a welcome light on compensation schemes and complaints and helps to remove any temptation to hide behind the ‘small print’. In addition, and perhaps most importantly, it adds more incentive to provide what has been promised to passengers.

My emphasis

To be clear, and as Which have pointed out, this is not a "new" right, it is one that has existed since 1st October 2016, however the TOCs have chosen to mislead their customers since then - now the NRCoT will better reflect the law of the land.


Title: Re: Consequential Losses
Post by: Fourbee on March 08, 2018, 16:13:14
To be clear, and as Which have pointed out, this is not a "new" right, it is one that has existed since 1st October 2016, however the TOCs have chosen to mislead their customers since then - now the NRCoT will better reflect the law of the land.

I'd like to see the NRCoT rewritten starting from a blank piece of paper, removing all the superfluous waffle and adding a dose of clarity to half the bilge it touts.


Title: Re: Consequential Losses
Post by: ChrisB on March 08, 2018, 16:38:26
Still being recruited by Transport Focus.....


Title: Re: Consequential Losses
Post by: grahame on March 08, 2018, 20:27:59
I'd like to see the NRCoT rewritten starting from a blank piece of paper, removing all the superfluous waffle and adding a dose of clarity to half the bilge it touts.

I thought that was the idea when the NRCoC turned into the NRCoT ...


Title: Re: Consequential Losses
Post by: JayMac on March 08, 2018, 22:38:22
Still being recruited by Transport Focus.....

Who is?


Title: Re: Consequential Losses
Post by: ChrisB on March 09, 2018, 10:12:51
How does the new rail Ombudsman come into this, if at all?


Title: Re: Consequential Losses
Post by: martyjon on March 09, 2018, 10:43:51
How does the new rail Ombudsman come into this, if at all?


With all bark and no bite, probably


Title: Re: Consequential Losses
Post by: didcotdean on March 09, 2018, 16:49:49
Things haven't really moved on from the situation within the discussion in this thread (http://www.firstgreatwestern.info/coffeeshop/index.php?topic=17435.0).

References to the phrase consequential loss should have already been removed because they have the potential to deter a consumer from seeking redress when it should be available. However, this is because the term 'consequential loss' is not clearly understood by the general public, not that it may be unreasonable in principle to exclude loss that is too remote from the contract.

The CMA considers it reasonable to explicitly exclude 'losses that were not foreseeable to both parties when the contract was formed', so I would be somewhat surprised if terms of this kind are not introduced in replacement for blanket 'consequential loss'.

As Transport Focus indicated, some test cases will undoubtedly occur to try to define the boundaries.



Title: Re: Consequential Losses
Post by: TaplowGreen on March 13, 2018, 06:45:40
Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true


Title: Re: Consequential Losses
Post by: grahame on March 13, 2018, 07:11:05
Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true

From that article

Quote
A commuter fed up with "continually" delayed trains has won a legal bid for compensation against the rail company.

Seph Pochin, of Halesworth, Suffolk, had described the service between his home and Ipswich as "woeful", with one train delayed by 100 minutes.

A warrant has now been issued for bailiffs to seize Greater Anglia (GA) property after it failed to pay him £350 compensation.

No doubt customers and customer groups are getting more likely to go to law and challenge the train operators.


Title: Re: Consequential Losses
Post by: TaplowGreen on March 13, 2018, 07:26:57
Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true

From that article

Quote
A commuter fed up with "continually" delayed trains has won a legal bid for compensation against the rail company.

Seph Pochin, of Halesworth, Suffolk, had described the service between his home and Ipswich as "woeful", with one train delayed by 100 minutes.

A warrant has now been issued for bailiffs to seize Greater Anglia (GA) property after it failed to pay him £350 compensation.

No doubt customers and customer groups are getting more likely to go to law and challenge the train operators.


I suspect Customers on the Cotswold Line will find it particularly interesting.


Title: Re: Consequential Losses
Post by: IndustryInsider on March 13, 2018, 09:43:16
Might be a bit counterproductive if the bailiffs seize certain items.  Station benches, customer information screens, trains, etc...  :D


Title: Re: Consequential Losses
Post by: JayMac on March 13, 2018, 10:54:10
They can only seize assets that belong to the operator. That rules out all station fittings and, in FirstGroup's case, nearly all the trains it operates.


Title: Re: Consequential Losses
Post by: ray951 on March 13, 2018, 10:58:36
Might be a bit counterproductive if the bailiffs seize certain items.  Station benches, customer information screens, trains, etc...  :D
Won't most of those items be leased and not owned by the TOC? Trains are generally leased, NR own the stations, vehicles are probably leased.
A TOC may pay for benches, CIS, fare machines but when the franchise ends these generally pass to the next franchisee so not clear who 'owns' them.
If you want to sieze items for non-payment then probably best go to the TOC's head office and take a few chairs, computers, coffee machines, etc.


Title: Re: Consequential Losses
Post by: IndustryInsider on March 13, 2018, 12:17:46
They can only seize assets that belong to the operator. That rules out all station fittings and, in FirstGroup's case, nearly all the trains it operates.

Won't most of those items be leased and not owned by the TOC? Trains are generally leased, NR own the stations, vehicles are probably leased.
A TOC may pay for benches, CIS, fare machines but when the franchise ends these generally pass to the next franchisee so not clear who 'owns' them.
If you want to sieze items for non-payment then probably best go to the TOC's head office and take a few chairs, computers, coffee machines, etc.

I wasn't being particularly serious.  It would have to be a pretty sizeable warrant that a train might be considered for seizure :P


Title: Re: Consequential Losses
Post by: TaplowGreen on March 13, 2018, 13:24:02
How about the "Rail Business of the year" trophy? Might get 50p for that? 😉


Title: Re: Consequential Losses
Post by: JayMac on March 13, 2018, 14:06:38
Seize Mark Hopwood's office chair. He might just get off his butt then.  :P


Title: Re: Consequential Losses
Post by: broadgage on May 06, 2018, 18:42:54
Bailiffs sent to large firms don't often take actual physical goods, the threat of so doing almost always produces payment by card or electronic transfer.
Companies that resisted paying up by offering all the usual excuses, tend to discover that they CAN pay the money instantly once bailiffs threaten to take away office furniture or IT equipment.

Although in theory a train could be taken, I doubt that it would ever happen. I cant imagine bailiffs being permitted to drive it on network rail tracks, and arranging a crane and road transport is far too complex, costly and time consuming.

Road vehicles are an easier target and are sometimes taken, if no money is forthcoming.


Title: Re: Consequential Losses
Post by: rogerw on May 06, 2018, 19:35:51
TOCs rarely own the trains so that bailiffs could not take them.  In fact if you look at it TOCs have very few major assets


Title: Re: Consequential Losses
Post by: ellendune on May 06, 2018, 21:11:05
The fact that TOCs don't own trains was an essential feature of the privatisation. IIRC First Group may own some HSTs but not the GWR subsidiary. I understood that this was a condition of the franchise contract.   


Title: Re: Consequential Losses
Post by: TaplowGreen on June 11, 2018, 06:42:56
Customers still being misled;

https://www.bbc.co.uk/news/business-44430134


Title: Re: Consequential Losses
Post by: didcotdean on June 11, 2018, 08:55:52
The circumstances in the above report though seem not to be consequential losses, but direct. If the cancellation of the last train meant someone missed clinching a business deal rather than paying for a taxi to complete a journey for example that would be consequential.


Title: Re: Consequential Losses
Post by: IndustryInsider on June 11, 2018, 09:29:48
Good to see all three of the major First franchises, GWR, SWR and TPE, appeared to have all been giving out the correct advice.


Title: Re: Consequential Losses
Post by: old original on June 11, 2018, 17:25:50
Good to see all three of the major First franchises, GWR, SWR and TPE, appeared to have all been giving out the correct advice.

Yay, well done Capita !!!  ;D ;D


Title: Re: Consequential Losses
Post by: TaplowGreen on June 11, 2018, 19:25:33
For  anyone who needs it;

https://www.which.co.uk/consumer-rights/regulation/consumer-rights-act-travel-amendments#claiming-for-consequential-loss?utm_campaign=whichukt&utm_medium=social&utm_source=twitter&utm_content=traincomp&utm_term=twnews


Title: Re: Consequential Losses
Post by: ellendune on June 11, 2018, 22:33:55
Good to see all three of the major First franchises, GWR, SWR and TPE, appeared to have all been giving out the correct advice.

Well they were not mentioned as having given misleading or inconsistent advice... ...but the article didn't actually say they gave the right advice.. ..did they answer the phone?


Title: Re: Consequential Losses
Post by: IndustryInsider on June 12, 2018, 09:26:09
I assume Which? would have pointed it out if they had not answered.



This page is printed from the "Coffee Shop" forum at http://gwr.passenger.chat which is provided by a customer of Great Western Railway. Views expressed are those of the individual posters concerned. Visit www.gwr.com for the official Great Western Railway website. Please contact the administrators of this site if you feel that content provided contravenes our posting rules ( see http://railcustomer.info/1761 ). The forum is hosted by Well House Consultants - http://www.wellho.net