Martin Cullen (Waterford, Fianna Fail)

I move amendment No. 107:

In page 57, between lines 7 and 8, to insert the following:

"(5) In considering an appeal against an improvement notice, the Court shall take into account the general duties of railway undertakings and others under sections 36 and 37.".

On Committee Stage there was considerable discussion of Deputy Naughten's amendments Nos. 63 and 65, which proposed that commercial considerations would not be grounds for an appeal against an improvement or prohibition notice. Deputy Olivia Mitchell raised a related amendment today. While I have much sympathy with Deputy Naughten's proposal on Committee Stage, it would be inappropriate to impose restrictions on what a person could plead before the courts. However, I have examined the Bill to see if there is some workable and practical means of giving the appropriate weighting to commercial and safety considerations in the Bill, given the imperative requirements attaching to safety. I propose to address Deputy Naughten's concerns through my amendments Nos. 107 and 109. These amendments will require a judge or jury, in considering an appeal against an improvement or prohibition notice, to take into account the safety imperative implied in the duties imposed in sections 36 and 37 of the Bill, as passed in committee. Section 36 places a duty on a railway undertaking to ensure the safety of persons in the operation of its railway in so far as is reasonably practicable. Section 37 places a duty on others to ensure that a person is not exposed to danger on a railway by their actions or omissions, again in so far as is reasonably practicable.

Deputy Olivia Mitchell's amendment No. 118 proposes that a railway undertaking may not consider cost when complying with its duty under section 36. Ultimately, under the provisions of this section it will be a matter for a judge or jury to decide what it is reasonable for a railway undertaking to do in a particular circumstance to ensure safety. Nobody can give an absolute guarantee of safety in anything we do. As a society we decide that there is a reasonable risk on a daily basis.

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