Know Your Rights: Personal Injury Victims of a Railway Accident

Updated: Aug 18

Authored by Nicholas Teh, Loh Yi Qing, Tiffany Ding & Aaron Thye



Introduction:

On 24th May 2021, a collision involving two (2) Malaysian Light Rail Transit (LRT) on the Kelana Jaya LRT line between Kampung Baru and KLCC station resulted in 47 passengers being seriously injured while another 166 being left with minor injuries.[1]


In such a situation, the victims of the accident would want to obtain damages for the injuries and trauma they went through. However, to obtain the said damages, the victims would need to have a cause of action to institute a legal claim. A cause of action simply means facts that would enable a person to file a lawsuit against another. The likely cause of action for a victim of a train accident would be a negligence claim against the train operator and/or the command centre as well as the rail company by virtue of vicarious liability.


Negligence

To institute a claim for negligence against the train operator and/or the command centre, the victim must prove that:

(i) The train operator and/or the command centre owes him a duty of care;

(ii) There was a breach of that duty of care; and

(iii) In consequence thereof, he suffered damages


In Malaysia, the preferred test to determine whether there is a duty of care owed to the victim is the three-fold test of foreseeability, proximity and policy considerations.[2]


It is foreseeable that if the train operator and/or command centre does not exercise proper care, the passengers' safety will be directly affected by their negligence.


The standard of care and skill expected of the train operator is extremely high. The train operator must keep a proper lookout while driving, anticipate the presence of others and be able to stop within the range of permitted vision.[3]

The victims can only claim against the defendant for damage that was caused by the defendant’s breach of duty of care and can only claim for damage that is reasonably foreseeable.[4]


Vicarious Liability

Vicarious liability means that one person takes the place of another so far as liability is concerned.[5]


To institute a claim against the employer for vicarious liability, the victim must show:[6]

(i) There exists an employer-employee relationship (the rail company being the employer while the train operator and/or the person in charge of the command centre being the employees);

(ii) The employee (train operator and/or person in charge of the command centre) was negligent; and

(iii) The accident occurred in the course of employment. Here, the accident occurred when the train operator and/or the person in charge of the command centre was/were on duty.


The Rationale for Imposing Liability on Employers

At first blush, this would appear to be unfair to the employer but the rationale for imposing such liability is because if the employer is not made vicariously liable, then the injured person would get no redress. After all, more often than not, the employee has no means to pay whereas the employer would have the means, or in any event, the employer ought to insure against the liability to get the means to pay. In this way, the innocent victim is not left to bear the whole loss himself.[7]


Damages for Victims

For personal injury claims, the victims could claim damages for monetary losses and non-monetary losses.


They could be seeking special damages (i.e. damages that can be quantified). Examples of such expenses would be their medical expenses,[8] transportation expenses incurred by the family members to visit the victim,[9]costs of artificial limbs[10] and any costs incurred arising from the injuries suffered from the railway accident. In this respect, proper documentation is required to prove that these expenses were indeed incurred. Besides that, they could also claim for general damages (damages which cannot be quantified), for example, pain and suffering and loss of amenities.


The quantum of damages that the victim would receive for the injuries that he suffered would depend on the locality of the injury. The Revised Compendium of Personal Injury Awards (Circular No 255/2018)[11] would serve as a useful guide that provides a range of quantum of damages that a court would award for a particular injury on the body.


Conclusion

Following the launch of Malaysia’s new National Transport Policy (NTP) 2019-2030 which primary focus is to increase public transport usage by the end of 2030,[12] railway companies are obliged to perform everything they can to ensure the safety of the passengers. Whilst train accidents aren’t as common as other transportation accidents, any railway mishaps which happen would still result in serious injuries and fatalities. In such cases, it is imperative that victims seek legal advice or assistance to guide them through the legal process of obtaining compensation from the company or individual responsible.


[1] https://www.theedgemarkets.com/article/first-time-lrt-accident-results-serious-injuries-passengers accessed on 27/5/2021 [2] Pushpaleela a/p R Selvarajah & Anor v Rajamani d/o Meyappa Chettiar and other appeals [2019] 2 MLJ 553 [3] Chai Phin Chong & Anor v Zainal Abidin Mohd Salleh & Anor [1998] 4 CLJ 833 [4] The Wagon Mound [1961] AC 388 [5] Launchbury & Ors v Morgans & Ors [1971] 2 QB 245 at 253 [6] Ibid [7] Ibid [8] Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321 [9] Chan Kim Hee v Karam Singh [1981] 2 MLJ 273 [10] Appalasamy a/l Bodoyah v Lee Mon Seng [1996] MLJU 30 [11] https://www.malaysianbar.org.my/document/com_docman/gid/itemid&rid=27104 accessed on 31/5/2021 [12] https://www.intelligenttransport.com/transport-news/90793/new-policy-looks-to-double-public-transport-usage-in-malaysia-by-2030/ accessed on 1/6/2021



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