Court of Appeal supports decision that train operator was not liable after accident

A train operator was held not to be liable for the injuries sustained by a passenger who fell between carriages as it departed from the station.

Whiting v First / Keolis Transpennine Ltd [2018] EWCA Civ 4

Executive summary

A train operator was held not to be liable for the injuries sustained by a passenger who fell between carriages as it departed from the station.

Facts

Mr. Whiting had alighted from the train operated by First Transpennine on to the station platform. The train guard had noted that the claimant was staggering and appeared to be drunk. The Station Rule Book provided that the train guard should stand on the platform with a clear view of it as passengers board the train. The train guard should then re-enter his cab, close the doors by way of a key and signal to the driver for the train to depart.

Mr. Whiting sustained severe injuries resulting in a below knee amputation and loss of several toes when he fell from the platform between two carriages of the train as it departed. It was Mr Whiting’s case that the train guard, for whom the train operator was vicariously liable, had breached his duty of care towards him by failing to adequately observe his movements before signalling for the train to depart. He also alleged that the train guard had failed to take up an observation point at the middle rather than end of the train and/or had taken too long between checking the platform and signalling for the train to depart.

First Transpennine’s defence was that the train guard had followed the Station Rule Book (the process between checking the platform and the train departing was said to have taken well less than 23 seconds). When the train guard had checked, Mr Whiting had been some way from the edge of the platform and that the guard had dispatched the train promptly. Had he seen him approaching the train then he would not have given the signal to the train driver to depart.

At first instance the judge accepted the train guard’s evidence and found, as a matter of fact, that Mr Whiting must have moved from his stationary position on the platform after the train guard’s checks were carried out. Mr Whiting had failed to prove any breach of duty against First Transpennine. The judge also held that had First Transpennine been liable, he would have held Mr Whiting 33% contributorily negligent. Mr Whiting appealed.

The decision

The Court of Appeal dismissed Mr Whiting’s appeal. Whilst accepting that the train staff owed a duty of care to customers and others in close proximity to the train, Lord Justice Hickinbottom held that the duty did not include those in charge of a train being required to guarantee the safety of such customers and others in close proximity to the transport. The duty on the train staff was to take a reasonable view of the risks posed to their customers. It was important that the duty of care imposed was not too onerous on those operating such services for fear of rendering the service inefficient.

Appellate courts would not interfere with findings of fact made by trial judges unless “…compelled to do so…” Whilst agreed expert evidence on technical issues should be departed from with caution, a judge had to consider the entirety of the evidence and in particular determine any factual assumptions on which expert evidence was based. In this case, far from ignoring expert evidence, the Court of Appeal determined that the first instance judge had taken such evidence in to account.

Much of the trial was occupied with the consideration of the expert engineering and medical evidence, in an attempt to determine precisely where Mr. Whiting fell. Whilst the experts had considered the probable accident location to have been between a particular set of carriages (which if correct would have taken the claimant approximately 23 seconds to get there from the point where the guard alleged to have seen him and therefore put in to question the guard’s evidence regarding the timing of the checks and train departure), the experts had not determined a fall between the nearer carriages to be impossible and, as such, the judge was therefore entitled to accept the train guard’s evidence regarding his checks, where the train guard had been positioned when undertaking his checks and how long it had taken between doing that and the train departing. In Lord Justice Hickinbottom’s opinion, Mr. Whiting’s case had fallen some way short of compelling the court to interfere with the trial judge’s conclusions.

Comment

This is a very measured and welcome judgment from the Court of Appeal which strikes a sensible balance between the rights of injured parties and the need to avoid the imposition of draconian liabilities on the providers of services operated for the benefit of the public. Whilst accepted that there was more that the guard could have done as part of his checks (for example continuing to observe the platform from his cab whilst the train departed) this was not required by the Station Rule Book or necessary.

The decision should not of course be seen as encouraging a cavalier approach to safety by public transport companies or their staff overseeing such services. The decision re-emphasises the existence of a duty and the need for appropriate checks to be carried out. By way of example, had Mr. Whiting been positioned precariously close to the platform edge at the time the train guard’s checks were carried out; had the train guard not checked the platform at all/in accordance with the Rule Book before signalling for the train to depart; or had the train guard unnecessarily delayed between checking the platform and signalling for the train to depart, it is possible that the train guard’s actions would have rendered First Transpennine vicariously liable for the ensuing accident. As train operators increasingly move towards a reliance on technology and automation, away from traditional on-board staff, the scope of the duty of care owed is likely to be considered further.  

This decision does however act as a timely reminder that each of us has a personal responsibility in respect of our own safety too and we ignore that at our own risk.

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