The English Court of Appeal has handed down a judgment in the case Whiting v First/Keolis Transpennine Limited 2018 EWCA Civ 4. Keolis was an appeal against a judge’s finding of fact in a personal injury claim and his subsequent dismissal of the case. The decision will be of interest to those operating in the transport sector as it provides useful clarification of the duty of care owed by train guards to members of the public.

Background

In February 2010, the appellant, Ian Whiting, was returning by train from a football match. Mr Whiting claimed that he was so inebriated that he could not recall any of the incident. Whiting left the train at the station when the train door opened and he leant on a wall of the station building resting his head there. Mr Stitt, the train guard on duty performed the necessary checks before getting back on to the train and signalling to the driver it was safe to depart. It later transpired that Whiting had fallen between two of the carriages of the six carriage train. When the train moved off Whiting suffered severe injuries resulting a below the knee amputation on one leg and amputation of the toes on the other.

In February 2013 Whiting raised an action for damages in Manchester High Court on the basis that First/Keolis TransPennine had been negligent. In particular it was alleged that there had been a negligent failure by the train guard to observe Whiting’s movements before giving the signal to the train driver to move off.

Liability was tried as a preliminary issue with the High Court Judge dismissing the claim in December 2014. Whiting lodged an appeal on the basis that the findings of the judge at first instance had been “legally perverse, because, in making it, the judge improperly rejected the agreed expert evidence as to the probable mechanism and venue of the accident between carriages”.

Negligence

The respondent, Keolis, had the operating franchise for the TransPennine Express and was responsible for all aspects of the safe running of its trains. It was agreed that this included vicarious liability for the actions of TransPennine staff and responsibility for the proper training, supervision and monitoring of its employees. The entire focus of the claim was therefore the train guard's alleged failure to observe Mr Whiting’s movements. There was no allegation of systemic failure by the respondent.

The train guard stated that Mr Whiting was still propped against the wall when he signalled to depart and that there was no indication that Whiting would move towards the train in a way that posed a risk.

Establishing precisely which of the carriages Whiting had fallen between was fundamental in determining negligence. According to the timings proposed by the experts, the location of the fall would have determined whether the train guard would have seen Whiting moving towards the train before giving the signal to move off and whether or not the guard would have been able to observe Whiting from his cab.

The agreed expert evidence stated that the appellant had fallen between the carriages at a point where the guard would have been able to observe Whiting. The judge at first instance rejected this preferring the evidence of the train guard that Whiting had still been leaning against the wall when the guard signalled; with the result that Whiting must have fallen between carriages further up the train. The guard would not have been able to observe this. The relevant rules did not require the train guard to have his head out of the window in order to check whether platform users were at risk as the train departed and in fact, a subsequent direction had been issued to guards expressly prohibiting this.

Legally perverse?

The crux of the appeal was that the judge’s findings of fact were such that he had substituted his own personal opinion in relation to those expert matters, without providing any good reason for doing so. It was also argued that the agreed expert evidence was overwhelmingly corroborated by lay evidence. Despite this the Court of Appeal disagreed and rejected the appeal.

It was held that the judge's findings of fact were not perverse simply because they were contrary to the agreed expert evidence. The judge had expressly taken into account the expert opinion and in the circumstances he was required to consider a wider range of factors than the experts had in their reports. The judge had been entitled to prefer the evidence of the train guard. Importantly, it was highlighted that the experts had not ruled out as an impossibility the mechanism and location of the incident which the judge favoured.

The Duty of Care

The judgment also provided a useful discussion on the duty of care a train guard owes to passengers on the station platform. The court noted that train staff owe a duty of care to customers and others who may be on a station platform in close proximity to a train. They also accepted that a moving train is an inevitable hazard. This risk is necessarily increased when those on the platform include children and people who are drunk or are otherwise more likely to put themselves in danger. However, the guard is not required to guarantee the safety of everyone on the platform. They must take a reasonable view of the risk posed to platform users and act accordingly.

In the circumstances of this case, the court considered that the guard had exercised all due care in signalling the driver to move off having observed that Mr Whiting remained against the wall; appearing drunk and showing no indication that he would move towards the train. The court emphasised that it was important to avoid placing too high a duty of care upon those involved in services to the extent that their jobs become unreasonably difficult and impossible for the provider to maintain an efficient service.

Although it is based on some unusual considerations, this decision should prove useful; it confirms that while there is a duty to assess risk to those on trains and in stations, thereafter, the duty is simply to do what is reasonable in the circumstances.