Every summer the operators of steam locomotives on heritage railways or mainline excursion trains confront the railway sparks problem. Steam locomotives, by their very nature, tend to emit sparks and lighted coals through the funnel or drop them through the grate underneath the firebox. In dry conditions this can set fire to line-side vegetation, crops and other property with the result that the operator may incur significant financial liabilities. In the heatwave of 2018 many steam operated services were cancelled. Diesel locomotives were sometimes used to assist steam locomotives so they would not have to work so hard (which reduces their propensity to emit sparks) or fire-beaters even followed steam locomotives in four by fours so as to be in a position to jump on a line-side fire the moment it erupted. Channel 5 even devoted an entire episode of a documentary series to how the North Yorkshire Moors Railway battled with the problem.
So, imagine how extensive this problem was during the heyday of steam when the national rail network was operated by thousands of locomotives. Clearly, it would have been entirely impractical for them to be followed by fire-beaters and cancelling scheduled services was not an option! In fact, it was a huge problem which was never resolved throughout the entire history of steam traction on the British rail system. Yet it appears to have been largely written out of most historical accounts of the development of the railways.
Nevertheless, the problem attracted the attention of economists and academic lawyers with an interest in the intersection between law and economics. It provided a convenient case study on how, if at all, the law should intervene so as to resolve land use disputes. Ones intuitive view tends to be that the perpetrator of the harm should, of course, be made to pay for it. An economist, on the other hand, may take a wider view and consider what outcome would be best for society as a whole. If strict liability was imposed would it encourage farmers to carry on growing crops near the line-side because they know they will be paid for the corps whether or not they get destroyed by fire – surely this would be wasteful and inefficient? Or would strict liability provide an incentive for rail operators to develop technology capable of reducing sparks?
Much of the debate has lacked an appreciation of how the courts actually tackled these disputes and, in order to put this right, yours truly has just published the most comprehensive and in depth legal historical account of the railway sparks problem: Mark L Wilde, ‘Railway Sparks: Technological Development and the Common Law’ (2019) American Journal of Legal History https://doi.org/10.1093/ajlh/njz024. Published: 31 October 2019 (advance online version).
The main things to emerge from the research are that the railway companies were largely shielded from the full costs of fire damage by statutory authority. The defence was largely shaped by the case of R v Pease (1832) 4 B & Ad 30, 110 ER 366 concerning spooked horses on a turnpike running alongside the newly opened Stockton and Darlington Railway. As noted in an earlier post on these pages (see ‘All the Queen’s Horses: HS2 and Statutory Authority‘) the solicitor advising the company had had the foresight to include a specific provision on the right to use steam locomotion in the private Bill and this was adopted as a standard clause in all such Acts by virtue of section 86 of the Railway Clauses Consolidation Act 1845. This meant that they would not be liable in respect of harms which were the unavoidable consequence of exercising the powers to operate trains, which were bestowed upon them by the private Acts of Parliament under which the lines were built. However, they would still be liable if negligence could be shown in that harm which is caused by a lack of care is a fortiori avoidable. Attention very quickly focused on the necessity of fitting spark arrestors.
These mostly consisted of metal grids or meshes, situated in various locations and various configurations in the smoke-box at the base of the funnel, which simply caught the sparks in the same manner as a fireguard placed in front of a domestic fire. However, the railway companies disliked these devices because they tended to impair the draft of the locomotive thereby impeding its performance and increasing fuel costs. Instead, they advocated the use alternative devices, such as the brick arch and deflector plate and the vortex blast-pipe, as better solutions, despite the fact that these were designed to increase efficiency and reduce fuel costs rather than to reduce sparks. It was indeed the case that more efficient combustion could reduce sparks as a collateral benefit but they failed to reduce fire damage to any great extent. Nevertheless, in Port Glasgow & Newark Sailcloth v Caledonian Rly Co (1892) 29 SLR 577 the House of Lords declared that the vortex blast-pipe was the best practicable means (BPM) of reducing sparks and was thus sufficient to discharge the duty of care.
At the very beginning of the twentieth century Parliament introduced a very limited strict liability regime under the Railway Fires Act 1905 (as amended by the Railway Fires Act 1923) which imposed very limited capped damages for damage to crops and plantations. The research shows that the limited nature of the regime was due in no small measure to a concerted attempt by railway interests in Parliament to resist the imposition of more onerous liabilities. Where damage fell outwith the very narrow scope of the regime it was still necessary to have recourse to the common law and to surmount the evidential difficulties of proving fault on the part of the railway companies. As a result claimants struggled to gain compensation until the demise of steam in the 1960s.
Turning back to the present, it is still the case that the operators of heritage railways and steam locomotives enjoy a degree of statutory protection. In some cases the original Act under which the line was authorised may be still extant or, more usually, the re-opening of the line and the restoration of services may be governed by a ‘light railway order’ (conferred by the Secretary of State under powers first established by the Light Railways Act 1896 (as amended on several occasions). These typically contain a provision expressly authorising the use of steam traction: see, for example, reg 7 of the Swanage Light Railway Order 1987 SI 1987/1443. Thus, such a provision would give rise to a statutory authority defence provided that the harm was deemed to be the unavoidable consequence of exercising the power. However, it is fair to say that, where a comparatively small number of services are operated on a heritage line, where issues of speed etc are unlikely to be a major consideration, it may be more difficult for a modern operator to show that the harm was unavoidable; thus, the duty of care may be a more onerous burden to discharge. Hence the use of fire-beaters and diesel traction in the afore-mentioned examples together with the fitting of spark arrestors.
It is also noteworthy that the Railways Fires Act 1905 (as amended) is still in force and is little changed. The last major modifications were made by the Transport Act 1981 which increased the cap on liability to £3000 and empowered the Secretary of State to raise the cap by way of statutory instrument – although this power has still not been exercised. Thus there may still be many cases in which the costs recoverable under the Act do not reflect the full damage costs.
In short, it may be a largely historical problem but the issue of railway sparks still has contemporary relevance. On a narrow level the use of preserved locomotives means that on occasion there may be live demonstrations of this once commonplace occurrence; thereby necessitating the preservation of legislation and common law principles in alongside the locomotives which create the problem! On a wider level the example is still returned to time and time again by those with an interest in the intersections between tort and economics. Moreover, it tells us something about how the common law reacts to technological change and how industry tends to dictate its own technological standards.