James Pretsell successfully defends claim brought by sleepwalker seriously injured by moving train.

James Pretsell successfully defends a claim brought by a claimant who sleepwalked from her home, entered a railway station and accessed the railway lines, before being hit by a train sustaining serious orthopaedic and head injuries.

Following a two day multi track trial on liability only, the claim was dismissed in its entirety. The case raised interesting and novel issues concerning the construction and application of the 1957 and 1984 Occupiers’ Liability Acts, the reasoning in Spearman v Royal United Bath Hospitals NHS Trust [2017] EWHC 3027 (QB) and the safety measures that are and/or ought to be in place at stations and platform ends.

The case arose out of an extraordinary accident at Hackney Wick Overground Station, in which the Claimant was struck by a train whilst sleepwalking. The Claimant left her flat in a somnambulant state, opened the lock on her front door, navigated her way to the nearby railway station and to the end of the platform, where she ignored warning signs and accessed the railway tracks. The Claimant was struck by a train further down the tracks and survived with serious injuries which may well have been far more significant if not fatal.

The Claimant alleged that Network Rail, as the occupier of the station and railway infrastructure, had failed to discharge its duties under the Occupiers Liability Act 1957 or the Occupiers Liability Act 1984.  The legally interesting argument arose out of the fact that the Claimant sleepwalked past warning signs that she accepted in cross examination were clear, comprehensible and would have prevented her from passing them had she not been sleepwalking. In those circumstances could the Claimant claim the benefit from the greater protection afforded to the lawful visitor by the 1957 Act or was she a person ‘other than a visitor’ to borrow the language of the 1984 Act and owed a different and more restricted duty?

The judge with some reluctance and expression of doubt considered herself to be bound by the reasoning in the case of Spearman v Royal United Bath Hospitals NHS Trust [2017] EWHC 3027 (QB) which holds that, in some circumstances, claimants are to be treated as visitors under the 1957 Act, even when they stray into areas in which they are not authorised to be. In the instant case, the claimant’s inability to comprehend a warning sign rendered her a visitor under the 1957 Act rather than the 1984 Act even when she had descended from the ramp at the platform end and gained access to the tracks.  It is fair to say that this seems to be the consequence of the reasoning in Spearman as applied to the facts of this highly unusual case. It is however a rather unsatisfactory position. In this case the Defendant had set out clear signs warning visitors not to pass the point at the platform end and highlighted the various dangers and risk of injury. It seems a peculiar result that someone in a highly unusual and altered state of mind in a public place such as a railway station should benefit from the protection of the more extensive duties imposed by the 1957 Act than the 1984 Act. The decision in Spearman may perhaps be one that could usefully be reconsidered by a higher court.

This finding meant that Network Rail had a duty to ensure that the Claimant, a visitor, was reasonably safe when using the premises. The case ultimately failed on issues of breach and causation. It was not reasonably foreseeable that a person would have entered the platform in a sleepwalking state. The warning signs and monitoring in place at the station were found to be reasonable measures in the circumstances. Although no gates prevented access to the railway tracks, the Court heard that open access was important to provide an evacuation route from the station and/or the tracks in case of emergencies and to allow access for maintenance staff. The Defendant’s submission that the Claimant had been able to open the door to her flat whilst sleepwalking and is likely to have been able to open a gate was accepted by the judge. The only other measure considered was the implementation of ‘witches’ hats’, rubber cones installed at ground level which discourage walking over an area. The lack of witches’ hats in this case was not found to be a failure. The Claimant had been able to walk over the uneven surface along the railway tracks without being woken and so the witches’ hats were unlikely to have made any difference.

It was alleged that station staff had been negligent in failing to identify that the Claimant was sleepwalking. Had they done so, it was alleged, they could have intervened and ensured that the Claimant came to no harm. This claim was also dismissed. The Claimant was caught on CCTV navigating through the station easily and at good pace. Despite the Claimant’s highly unusual state, it was found that there was nothing untoward about the Claimant’s appearance which may have required the Defendant to take steps having noticed an obvious risk. The station had one member of staff working at the time, which was found to be appropriate and it would have been unreasonable to suggest that Network Rail should have monitored CCTV at all times. A member of the public used the information point to alert Network Rail staff to someone walking on the tracks and this reliance on the public was found to be reasonable in the circumstances.

This case provides some very useful insight into what measures at platform ends are considered sufficient to discharge Network Rail’s duty as an occupier in the all too frequent instances of trespass onto the rails.

 

James acted on behalf of Network Rail and was instructed by Stephen Johnson, Partner, of DAC Beachcroft.

 

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