The rights of passengers will be bolstered from 3 December 2009
when a new EU Regulation comes into force. Regulation 1371/2007
on rail passengers' rights and obligations will have direct force
in the UK without the need for national legislation.
This Regulation will firm up and add to existing compensation,
information and assistance obligations. It will directly affect
the provision of services to the public.
New liabilities for carriers
The Regulation adds certain absolute liabilities on
industry parties to compensate passengers for personal
injury, death and loss as well as damage to luggage to the
existing regime. In addition there are specific
compensation provisions for delays and cancellations.
The majority of the obligations already exist for
international transport and the Regulation effectively
copies these existing provisions into contracts (tickets) for
domestic services. The obligations are not, however,
always clearly expressed and there remains some doubt
about their exact meaning.
Among other provisions, the following are likely to be
important to carriers and others:
- The carrier will be primarily liable (subject to later
adjustment of responsibility under CAHA or
otherwise) where death or personal injury occurs for
whatever reason;
- Carriers will be obliged to make interim payments to
passengers who are injured pending the final
outcome of any claim;
- In addition to replacement services and refunding
tickets, carriers will be liable to refund part of the
ticket price whenever delays exceed one hour;
- Carriers will also be liable for damage to registered
luggage and, when linked to personal injury, hand
luggage.
Carriers cannot contract out of these obligations and
consequently will have to implement them in addition to
existing passenger compensation arrangements.
There are also provisions making a carrier vicariously
liable for the faults of their contractors (including for this
purpose, Network Rail) which are likely to extend the
scope of liability.
Personal security in stations and on trains
In addition to existing obligations under safety law and the
other responsibilities industry parties have as occupiers and
managers, the Regulation adds a requirement for railway
undertakings (TOCs), infrastructure managers and station
managers to take adequate measures to ensure passengers'
personal security in stations and on trains and to "manage
risks."
The full scope of this obligation is not certain, however, it
arguably places a degree of responsibility on industry parties
in respect of criminal activity in or near stations. The
Regulation may add to the arguments available to members of
the public that the industry is liable to them when security
incidents occur. It may consequently add to the security
measures which the industry must take on its own property.
The Regulation obliges carriers to be adequately insured for
the liabilities under it. Although, in principle, this is unlikely
to be an issue for most TOCs, the nature of some of the
liabilities in the Regulation may give rise to a need to review
current insurance practices.
Under the Regulation, carriers are likely to have an increased
front-line exposure to small claims for personal injury and
delay, each of comparatively small sums.
Nonetheless, the Regulation will make it necessary in some
cases to make payments up front which are not subsequently
returnable and/or strict liability payments which can not be
recovered from other parties.
Overall exposure to low level claims may therefore increase
and insurers and carriers may need to consider the impact this
may have upon their current policies.
Insurance obligations
The Regulation is fairly prescriptive on information which
must be provided to all passengers and how tickets must be
sold and explained. In addition there are particular
obligations for assistance to be provided to Persons of
Reduced Mobility ("PRM") and disabled people. This is in
addition to the TSI on PRM. Industry members will need to
check their existing procedures and information to ensure
that they are complying with these prescribed obligations.
Information to passengers including Persons of Reduced Mobility
The Regulation contains a number of provisions which will
not exceed current good practice. However, it does
apparently rely upon a fairly inflexible mechanism for
passenger compensation and assistance which may result in
carriers and others becoming responsible for matters which
go beyond their current obligations. This in turn may have
an impact upon the insurance coverage required by industry
members.
The direct effect of the Regulation and the fact that it is
expressed in a more generic style than most English
legislation may also result in industry parties being unclear in
certain circumstances where their actual responsibilities lie.
