Re: Track Access charges & legal liability

[nldoncas@cobweb.com.au (Nic Doncaster)]

mauried@commslab.gov.au (Maurie Daly) writes:
> I was wondering what the legal situation is , if a privately run train falls 
> off the track ,due to the poor condition of the track in a situation where the 
> poor condition of the track has been known to the Railway Body that is 
> charging a track access fee for a long time , and the Railway body has failed 
> to fix the track.
> ie what happens if the Overland derails between Geelong & Ararat.
> It would seem to me , that as the railway is charging a track access fee for 
> the right to run a train over there track , that there is a duty of care to 
> ensure that the track is in a condition suitable for the purpose for which the 
> fee is charged.
> 
> Does anyone know what rights or conditions are provided by the payment of 
> track access fees.
> 
> MD
> Maurie,

Sounds like you've answered your own question.

There is a duty of care by the service provider to the service user in any 
situation.

In SA the implied law for OHS and other safety type issues is "due care" and 
what is "reasonable and practicable".

As an example, if an infrastructure owner allowed access to a service provider, 
the owner has the responsibility to ensure that the track is "reasonably safe", 
and thus advise the operator of any lilely problems.

The old "we cannot be held responsible" statement is invalid, as by providing 
the service, the oporator/service provider has accepted liability for reasonable 
risk.

The rule of thumb is "the consumer is an idiot". (reminds me of a case in the US 
where a whitegoods manufacturer was successfully sued for back injury; despite 
the fridge being used for strap-on-your-bAck- racing, not keeping food cool)


(not a legal opinion, just based on my understanding of SA legislation and court 
procedings)> --------------------------------------------------