Re: Track Access charges & legal liability

["Graham Watkins" <gwatkins@globec.com.au>]

Maurie Daly <mauried@commslab.gov.au> wrote in article
<mauried.439.34BFF830@commslab.gov.au>...
> 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.
> 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.

A Railway Operator and a Railway Manager (or Owner) must have an access
agreement which allows the Operator to run trains on the Manager's track.
This agreement will detail the split up of risk between the Operator and
the Manager in the event of incidents. It would probably also include
commercial factors such as penalties for delays etc.

In general, I would expect that if a train derails, the costs would be
against the outfit responsible - ie if the track caused the problem, the
Manager would pay and if the train caused the problem the Operator would
pay but it would depend on the individual agreement.

Apart from commercial considerations regarding the level of service to be
guaranteed, the manager would only have to ensure that the track was safe.
That is, if there was a problem, a speed restriction could be applied.
There may be no obligation on the Manager to "fix" the track back to the
previous standard as long as it is safe to operate under what ever
conditions it imposes.

It all comes back to the individual agreements and whatever risks (both
safety and commercial) are accepted by those involved.