Ken Churchill's conscience won't let him rest, even though he has won a substantial out of court settlement from the Canal & River Trust after his boat sank in Lock 40 of the Leeds and Liverpool Canal's Bank Newton flight in August 2012.
His was the seventh such hang-up at Lock 40 and he's determined that another boater doesn't suffer the same trauma, perhaps even with loss of life, something he says could so easily have happened during his sinking.
However, he is faced by C&RT taking shelter behind a legal fiction. The charity settled out of court at substantial cost, but that meant they did not make a formal declaration of liability or fault. That legal nit-picking has allowed NW Waterways manager Chantelle Seaborne to claim in an email: “The Trust has always taken the view that Lock 40 is not defective”
“Boaters involved in accident number eight might not be so fortunate. They might not even have a side-hatch.”
Ken recalls the case: “A Judge ordered C&RT to provide documents. C&RT failed to do so and solicitor returned to the Judge who ordered C&RT to provide a list of documents within 14 days and imposed a four-figure fine on the Trust.
“C&RT then provided the Leeds & Liverpool canal incident reports which included 24 Chamber wall boat hang-ups; 22 on the Bank Newton Flight and two others.
“There were eight at Lock 37 and seven at lock 40. Having 22 at Bank Newton is a 'trend' and should ring CRT H&S alarm bells. It doesn't and their customers are put at risk.”
Ken discovery of the incident reports from C&RT that show other hang-ups at lock 40 as well as other locks in the Bank Newton flight, combined with a hitherto undisclosed C&RT safety standard that specifies locks should not have protrusions that could snag boats have been put to the HSE's Howard Whittaker but his initial response was a blank refusal to act.
Ken told Mr Whittaker: “My hope is that after consideration of this email, you will issue an Improvement Notice stating that the Trust have failed to take all reasonable practicable measures to ensure the safety of its locks. ..… That C&RT very deliberately set out to mislead HSE (and myself regarding my claim) by not disclosing its published Minimum Safety Standards (MMS)”
After the HSE's initial refusal to budge, Ken would not give up. He emailed Howard Whittaker again: “I request you reconsider your decision for the following reasons:
“You agree that a 'Risk' exists at Lock 40.
“The Trust's cement re-pointing of Lock 40 North Chamber Wall, 2006 and 2009, verifies that the Trust are aware of the Lock 40 'risk'.
“Despite at least seven Lock 40 boat hang-ups the Trust have neither agreed or denied the 'risk' at Lock 40.
“The Trust have nether agreed or denied that a section of Lock 40 North Chamber Wall is Out of Vertical is a risk. Indeed the Trust has evaded all communications on this issue.
“There is no excuse for the Trust not knowing that Lock 40 has a 'protrusion risk' below the 'Out of Vertical Wall ' Indeed the Trust provided you the their drawing of the Out of Vertical Lock 40 North Chamber Wall .
“The probability of another boat hang-up on Lock 40 North Chamber Wall is high due to the Trust failing to carry out any remedial work.”
After HSE's first refusal, the Principal Inspector has now thrown Ken a bone, in a response to his impassioned plea, saying: “Nevertheless, I have pointed out again to the CRT that the history of incidents across the Bank Newton flight demonstrates a risk remains as does the duty on the CRT to assess & control it.
“I have therefore advised that the CRT should closely monitor any incidents or near misses to see whether their judgements about the risk profile need to be reconsidered and whether any more needs to be done to reduce risk.”