Civil Liability Act 2002 (NSW), Jay And Leno Prove or Defences Negligence & Thomas Train Rides Pty Ltd Case Study - Law Assignment Help

Assignment Task -                 
 

 
Background Information on the Company: 
 
Thomas Train Rides Pty Ltd (hereafter ‘the Company’) is a rail company that has been providing a 3-hour twilight dinner rail ride experience from Willoughby to Somerset on its luxury steam trains. It is manned by 2 Jerry and Larry, both of whom are in their seventies. There is one crew member, Sarah, onboard at all times to assist passengers. 
 
Facts and Events relevant to the Accident: 
 
It was the evening of 24 December and the rail had been an hour into its journey. Larry was doing his commentary of the attractions the train passed by when he felt a tug at his shoulders by Jerry who briefly stated he was feeling giddy and collapsed. The train had started veering off the tracks when Jerry had tugged at Larry as Jerry had taken his hands off the steering wheel at that time, as he was not in control of his mental faculties. As soon as Jerry witnessed Larry collapsing, Jerry attempted to break the train but unfortunately had not been trained on emergency procedures such as this one in many years and had unknowingly stepped on the accelerator instead of the brakes which caused the train to go off track and crash into a station wall. A fire broke out. 
 
Larry and Jerry had been undergoing regular medical check-ups on their own and in the most recent check-up, Jerry was informed that he suffered from diabetes and had highly elevated sugar levels which could cause him to feel giddy anytime. He was given medication that he was meant to take every four hours but had forgotten to take it that morning as he was running late for work. Jerry had informed Steven, the owner of the Company of his medical condition but Steven had informed him that they were short of drivers, and hence until they found a replacement driver, he had to continue his rail driver duties. Steven assured Jerry that everything would be fine since Larry would be there to support him.  
 
The Company used to organized training for its staff four times a year (covering emergency procedures) but in recent times had cut this back to once a year due to the costs involved in arranging the training.The Company further did not make it mandatory for staff who had been with the organization for more than five years to undergo this training. Staff such as Larry and Jerry had been trained on the emergency procedures applicable to other types of trains but not steam engine trains as they were told by Steven that he was confident they would be able to 
‘figure it out’.  
 
Further investigations of the rail accident have since uncovered new evidence pointing towards the poorly maintained rail track in that particular leg of the journey where the accident occurred, as possibly being a cause in the train accident. The rail track maintenance had been conducted by Real Maintenance Pty Ltd who had sourced poorly trained labor and had done the maintenance job in a rush as they had a shortage of labor and were experiencing a high demand on rail maintenance jobs state-wide. 
 
It was subsequently discovered that prior to the accident, Jerry had been going above the speed limit as the train was behind schedule.  
 
A report commissioned from Servicing Whiz Pty Ltd, the servicing company the steam trains were sent every six months, showed strong recommendations made by Servicing Whiz to Steven to replace the brakes as they were wearing out and would not be as effective particularly in wet weather or oily conditions on the track. Steven had replaced the brakes but had installed brakes he had sourced from overseas which were cheaper although not as effective for the weather conditions in Australia. Jerry, Larry and other rail drivers had highlighted to Steven how the trains did not brake in time in bad weather conditions but he had been dismissive of their concerns stating that they were exaggerating. 

Persons injured in the accident: 
 
Carl and Peter 
 
The train ride was known to be a bumpy one in that particular section of the route (where the accident occurred) due to the uneven terrain. Jerry had informed all passengers to be seated prior to entering this section of the route. However, two of the passengers, Carl and Peter, who had been intoxicated as a result of drinking alcohol served on board, had decided to stand in the section between the carriages to take photos. When the accident happened, they were strewn out of the train and subsequently had suffered upper arm and leg injuries. 
 
Jay and Leno 
  
In addition, as part of the railroad experience, passengers were allowed to ride with the drivers in the engine room. This required passengers to be able to climb steps into and down from the locomotive at ground level unassisted.  
 
The following terms were found on the waiver form that passengers were required to sign prior to attempting this additional activity. 
 
“To take part in the Ride with the Driver you must be relatively fit and agile with full use of arms and legs. There is no age limit as long as you are over 16. You must be physically able to climb steps into and down from the locomotive at ground level totally unassisted in case we do not have platform access. 
 
The driver can and will use his discretion as to your ability to do this and under our Health and Safety requirements is obliged to refuse to take anyone who he feels is not sufficiently agile and mobile to manage in this environment. We cannot guarantee a seat for you on the locomotive so you must be prepared to and be able to stand for the duration of the trip. 
So please make sure you are fit and agile before booking this activity for yourself or someone else. We would rather save the embarrassment of refusal on the day. 
It's a wonderful experience but you must be aware it's a working industrial environment. 
 
The passenger releases Thomas Train Rides Pty Ltd for any claim incurred including but not limited to a claim for death bodily injury damage or loss of property caused by any circumstances.”  
 
Jay and Leno, who were two retirees aged 75 who had lost their wives recently, decided to challenge themselves by doing this. They had no alcohol in their system and had signed a waiver form given by the crew prior to attempting the climb.  
 
When the train accident transpired, Jay and Leo had been climbing the steps leading to riding with the driver, and were not steady when doing this due to their age. The accident coupled with their unsteadiness had caused them to suffer head injuries. However, they both managed to help each other out of the train into safer surroundings. Jay had a pre-existing medical issue involving clogged arteries which due to the stress of the event caused him to have a heart-attack on the way to the nearest hospital (Douglas Hospital), resulting in his death
 

Advise the following parties of their respective legal position, using the law of negligence. In particular, please analyze the elements to prove negligence and defenses to negligence, with reference to sections of the Civil Liability Act 2002 (NSW) as well as relevant case-law. 

DEFENDANTS: 
Thomas Train Rides Pty Ltd (in regards to its liability for its employees’ actions: namely Jerry and Larry). 
Real Maintenance Pty Ltd 
Servicing Whiz Pty Ltd 
Oil Expertz Pty Ltd 
Douglas Hospital PLAINTIFFS: 
Carl and Peter 
Jay and Leno 
Sheela and Mark 
Leslie and Ginger 
 


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