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By David Chant

Jan 27th, 2015

Liability for Drunken Rail Passengers

Intoxicated passengers are a high risk to rail operators and stations, particularly in large city stations and at weekends. Many incidents occur after bouts of evening drinking and NR have actioned a campaign urging travellers to take extra care.  Scot Rail has prohibited the carrying and consumption of alcohol on its services in the evenings.   East Coast trialled a ban on alcohol on some services and York station carries warnings about alcohol on Saturday evenings, identified as a high risk period. 

Following a review of accident statistics in 2014, the Office of Rail Regulation Health and Safety reported around 8% of the fatalities to passengers occurred at stations mostly involving slips, trips and falls on stairs, escalators and platform edges including passengers struck by passing trains.

With this in mind, to what extent is the TOC or station managing company liable to intoxicated passengers sustaining personal injuries?

The Law 

The railway station or managing company as the occupier has a duty of care to those on the premises under the Occupiers Liability Act 1957 (permitted visitors) and the Occupiers Liability Act 1984 (trespassers). The extent of the duty owed differs as to whether a person is classed as a visitor or a trespasser. In respect of visitors, the occupier has a duty to take such care as in all the circumstances is reasonable to see that the visitor would be reasonably safe using the premises for the purposes for which he is invited or permitted.  In respect of trespassers the occupier owes a duty if he is aware of the danger or has reasonable grounds to believe it exists and the risk is one against to which he may reasonably be expected to guard against and offer protection. Whether a visitor or a trespasser, there is no liability on the part of an occupier for risks that are willingly accepted.

However, the law does recognise that there may be circumstances such as drunkenness which can be foreseeably likely to affect an adult’s appreciation of danger which may cause him to act in a reckless fashion. In appropriate circumstances there may exist a duty on such occupiers to make allowance for those actions and take precautions. 

This was the issue in the case of Jebson v Ministry of Defence (2000) where the MOD were acting as the carrier of off-duty soldiers on an organised evening out.  There was no active supervision in the back of a lorry when one of the soldiers was injured trying to climb from the towergate onto the roof.  In these circumstances there was a particular duty on the MOD to ensure that the transport package they provided was reasonably safe to avoid the possibility of injury from rowdy behaviour.  There was a large gap about the towergate which raised the possibility of someone falling from the lorry and the driver had no facility to monitor what was going on behind.  The “package” was deficient if someone was not appointed in a supervisory role and there was therefore a foreseeable risk of injury.  The court reduced the claimant’s damages by 75% on the basis that he was contributory negligent but he was able to recover 25% of the full value of the claim. 

The liability for intoxicated passengers was also considered in the decision of Collins-Williamson v Silverlink Train Services Limited (2008).  The defendant operated class 313 electric multiple units on the north London line which had power operated sliding doors. The claimant alighted from one such train at the Gunnersbury station.  Due to the track curvature the gap at point of passenger entry with the platform edge was 269.5mm which was still within the allowable maximum of 275mm. Painted along the edge of the platform were “mind the gap” notices. The train guard made a similar announcement to passengers on approaching the station to warn them of the gap.  The claimant had alighted from the train and was seen by witnesses stumbling along the side of a train in an intoxicated state and fell into the gap between the edge of the platform and the train. The claimant alleged that the defendant was vicariously liable for the negligent act/omissions of the guard who should have been able to see that the claimant had fallen and ensured that the train did not move off.  Alternatively if the accident occurred after the guard had re-boarded the train but before the train had left then he should have noted the claimant’s behaviour and ensured that he was safe and well away from the train before continuing with the departure procedure.

The defendant’s safety assessment revealed a relatively high risk of passengers falling off platforms, inebriation being one of the relevant factors.  It was foreseeable that such an accident might occur in the short period of time during which the platform was unobserved.  The Court found that there was a period of 10 to 20 seconds between the guard boarding the train and the train starting where there was no observation at all of the outside of the train or the platform edge. 

To deal with the clear risk of an accident occurring it was held that the defendant should have had a system whereby the guard could look out on an open window in the guard’s cabin up to and just beyond the time when the train commenced its departure from the station.  The failure to provide such a window meant that the defendant had failed to satisfy the appropriate standard of care and was negligent.  This was requiring a modest modification to the local door similar to other trains such as the class 321 and the master rulebook required that to be used. On the issue of contributory negligence the court found that the claimant had been participating in a foolhardy behaviour close to the edge of the platform where there were gaps and when he must have heard the hustle alarm indicating departure before the passing doors closed. His damages were reduce by 50%

Advice/Recommendations 

  • In most situations an adult is not entitled to claim that his own drunkenness gives rise to a duty or responsibility in occupiers to exercise special care. However, the courts will recognise that this is not an invariable rule and circumstances can arise where there is an obligation of care which is assumed or implied in respect of a person who it is appreciated is likely to be drunk. 
  • Service providers deal with intoxicated passengers and this is a factor that should be covered in a proper risk assessment.
  • It is foreseeable that service providers will encounter intoxicated passengers and this should be covered in a proper risk assessment. In “Collins-Williamson” it was noted that a train operator has to produce a Safety Case pursuant to the Railways Safety Case Regulations 2000. The risk assessment section reviewed falls from platforms and causal factors considered included intoxicated passengers.
  • The “drunken passenger” should not be overlooked in training which should focus upon awareness of risks and vigilance. 
  • The increasing practice of excluding/prohibiting drunken behaviour/consumption of alcohol should be well advertised. It will assist an occupier’s defence and may further assist arguments upon contributory negligence. A passenger who ignores the warning may render themselves a trespasser thus reducing the duty of care to that owed under the Occupiers Liability Act 1984.
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