Duty of care owed to intoxicated passenger: leg amputation

At about 11.40pm, Mr D was travelling on an over-ground Silver Link train en route towards Richmond. He alighted the train at Gunnersbury Station, West London, where witnesses observed him appearing to be intoxicated and making noises in a jovial manner.

Gunnersbury station has a curved platform, which creates a gap of between 17” and a metre between the train and the platform when the train is in the station. The Claimant lost his footing and fell into the gap and onto the tracks. Two witnesses, who were waiting for another train, attempted to rescue the Claimant and banged on the side of the train in an attempt to alert the guard and prevent its departure. However, a few seconds later the train departed, traumatically amputating his left leg and two fingers.

It was submitted by the Claimant that (1) the guard on duty that night, operating from a rear carriage of the train, was negligent in performing his duty of dispatching the train safely; and/or (2) the train dispatch procedure was fundamentally flawed in it’s failure to take account of a period of up to 20 seconds prior to the train departing during which the platform was completely unobserved, allowing the Claimant to fall unnoticed by the guard.

The judge in The High Court concluded that the facts supported a finding of negligence on the part of the guard. Even if the Claimant fell after the guard carried out his final checks, the Claimant was “there to be seen” and indeed had been seen by other witnesses.

As regards (2), the judge concluded that the guard should have been provided with an openable window out of which he would have been able to observe the platform up until the moment of dispatch. This was a reasonably practical step the Defendant could have undertaken, and indeed is already in operation on some of their other train services.

The Judge also found that the Claimant had consumed alcohol and acted foolhardily in walking too close to the train when he would have been aware of its imminent departure, and reduced his claim by 50% for his contributory negligence.

The Defendants appealed to The Court of Appeal which upheld the appeal as to (2) but agreed with the judge’s decision that the train guard was negligent.


Boy electrocuted to death by live wires in railway yard

Master Y was playing with his brother in the Yard. In the course the brother came into contact with an unprotected high voltage cable which caused his death by electrocution.

Y found his brother’s body on fire. As a consequence of seeing this he sustained severe shock and trauma. The railway sidings were used for football and generally for walking about and as a short cut.

Children frequently played on the tracks in the railway sidings. The sidings yard was an allurement to children and the yard contained concealed traps and dangers for children including the high voltage cables.

The railway operator had failed to pay any adequate regard to the warnings given from members of the public that children played in the Yard. Master Y sustained a severe post traumatic stress disorder.

The claim was first settled for £32,000 by way of interim payment and then much later when he had matured a further sum of £36,500. The legal costs were paid by the defendant.