Few people worry about personal risk when using public transport. But the fact is that whenever you use buses, trains or taxis, you are in effect putting your physical safety on the line. At the very least you could be in an accident that is not your fault and which may leave you with injuries and medical bills to pay. And often owners of these transport services may not own the responsibility that they should.
Train accidents in particular – while the least common – can be the most serious in effect. You are 17 more times likely to be involved in a car accident than a train accident. Nevertheless train accidents tend to get far more publicity than road accidents simply because of the size of the vehicle and the greater number of people who can be injured. Most rail accidents involve a car and a crossing – unless the train derails – which is rare.
A typical train weighs more than 200 tons. Considering the sheer size of freight and passenger trains and the speeds at which they travel, a train travelling at 55 kilometres an hour can take nearly half a mile to come to a stop – which means a train cannot stop quickly if either a person or car appears on the tracks.
Trains and passengers
Injuries can be sustained by the train jolting suddenly or doors not being properly closed or passengers riding illegally on the train, either on the roof or hanging on the side of the train. If people are themselves not to blame, then factors such as track, signal and equipment defects would have to be investigated. When only one or two passengers are involved in an incident on board a train, witnesses may be difficult to find. Within a crowded coach, visibility is restricted and the exact sequence of events may be obscured.
Responsibilities of train operators
Passenger trains are common carriers, which means they accept money in exchange for transporting passengers. As such, trains have a duty to ensure that passengers travel in safety while using their services. This includes platforms where passenger wait to board a train as well as passenger compartments on the train.
If a passenger is hurt while traveling on the train and injury is caused through the negligence of the train engineer, conductor or other employee – or a defective condition on the train itself – the passenger may have a right to claim compensation for injuries sustained.
Train operators must therefore take cognizance of the following:
Speed: In any area deemed dangerous, the train must restrict its speed depending on known circumstances. Failure to do this which results in injury to any person means the operators are to blame.
Warnings: Even though trains have the right-of-way at intersections, they must signal their approach within a reasonable amount of time. These warnings may include whistles, bells, flashing lights or a combination of all three.
Lights: If the train is traveling at night, it must use proper lights to make it visible to people who may be trying to use railway crossings.
Maintenance: Ensuring trains and their equipment in safe working order, specifically the doors.
Qualified people: Ensuring only qualified engineers operate trains.
Obstructions: Ensuring train tracks are free from obstructions, including weeds and other overgrowth that may make travel dangerous or obstruct view.
Simpsons – a case study
In 2012 our client fell out of a moving train through an open door and onto the tracks. In the early morning, he had entered a carriage with a number of other people. The crowd pushed and shoved their way on board. Our client said he felt someone grab at him from behind, and he fell backwards out of the still open door of the train which was now pulling out of the station. He fell onto the platform and was dragged by the train until he fell between the carriages and onto the tracks. In his shocked state when he recovered consciousness, he had no recollection of being dragged but thought he had fallen between the platform and the train.
The defendant claimed that our client had attempted to board the moving train after the whistle had blown and the doors were closed. Witness for the defendant said our client had leapt between the coaches, trying to gain a handhold on the moving train, and had therefore fallen between the coaches to the track. The defendant stated that it was not possibly for the injured party to have fallen between the platform and the train because the space was no more than ten centimetres, and that he had fallen between the carriages when he had tried to jump onto the train. Therefore the accident was his own fault.
However, it was established through testimony and on-site examination that a witness’s version of our client being dragged along the platform, was correct. It was also established that the witness for the defendant could not have seen whether the doors were open or closed, and that the man he claimed to have seen jumping on the moving train was in fact, the person who may have caused our client to fall out of the carriage.
It was found that the train driver/conductor was negligent in the following:
- not ensuring that all passengers were safely on board
- failing to ensure that the doors were properly closed before the train departed
- neglect of maintenance of the carriage ensuring the doors could close, and remain closed when the train was moving out of the station.
Summary
A fundamental requirement for the safe operation of a passenger train is that it should not depart and travel with a door open. An open door while travelling creates high risk of serious harm to passengers. Liability Culpa arises if the defendant: a) could have foreseen reasonable possibility of his conduct injuring another person or property b) could have taken reasonable steps to guard against such an occurrence c) did not take those steps.
Considerations influencing action: a) the extent of the risk created by defendant’s conduct b) gravity of the possible consequences c) the effectiveness of the defendant’s conduct d) the burden of eliminating risk of harm.
It was therefore found that the accident was a result of the operator’s negligence in assuring that the train door was closed before departure. It would have involved no extra burden or costs to check that the door was properly and safely closed before signaling to the driver that he could proceed – and therefore the plaintiff’s injuries were solely caused by the defendant’s negligence.
Simpsons was pleased to have been granted the opportunity to win this case. Our modus operandi is to ensure that every South African is able to receive the advice and support they need. Personal injury claims are our specialty – whether resulting from transport accidents, medical negligence and product and public liability. We offer each client a personalised service, ensuring we focus on every aspect of your case, whether physical, emotional or financial.
Find out more about us at: www.simpsons.co.za
