[Discussion] The railway's fault

[Fawkes Cat]

On another thread (https://www.railforums.co.uk/threads/rail-companys-liability-for-stolen-luggage.181815/page-2) someone asked about compensation from the TOC for having their luggage pinched. I responded

The Conditions of Travel seem to cover this, but I don't think will help the OP:

26. A Train Company’s liabilities with regard to luggage, other accompanied articles and
animals
A Train Company or Rail Service Provider will only be liable for any loss or damage
to luggage, articles, animals or cycles in its trains or on its premises if the loss or
damage was caused by the fault of a Train Company’s or Rail Service Provider’s staff.
The maximum liability of a Train Company or Rail Service Provider with regard to such
matters is £1,500 per passenger.

In the absence of any other reference to it in NRCoT (and I haven't found any other reference on a quick look through), I think that theft is implicitly included in 'any loss or damage' (my emphasis) so since no one has suggested that the railway was at fault, the OP doesn't have a claim against them. And this ties up with

(a) my understanding of the situation in non-railway places: for example, car parks tend to have disclaimers against liability for loss or damage
(b) common sense: it's a bit hard to see what a railway could do to prevent theft from an unsupervised open shelf, so surely it's the responsibility of anyone who leaves luggage in such a place to keep an eye on their luggage?

While I am not certain that everyone went along with my reasoning, I think we all agree with the conclusion. But are we right? The phrase that now exercises me a bit is

if the loss or
damage was caused by the fault of a Train Company’s or Rail Service Provider’s staff

And even more specifically, the word 'fault'.

I think it's obvious that 'fault' includes sins of commission (the guard stopped the train, opened a door, and threw your luggage into a river). But does it also include sins of omission? So in this case, did the traveller have a reasonable expectation* that the TOC would look after their luggage? And if the traveller did have that reasonable expectation, did the TOC's failure to meet it constitute a fault in that the TOC didn't do anything wrong, but they didn't do anything at all?

If I am now right, this still doesn't mean that the traveller has a claim - they would need to show that they had a reasonable expectation AND that the TOC's (lack of) action was sufficient to allow the theft to take place. So broadly I think the advice we have given was good. But if 'fault' includes leaving undone those things that we ought to have done as well as doing those things that we ought not to have done, then there may be grounds for seeking compensation in other cases.

*Yes, I do know that this has a specific legal meaning. And I think I am using it in that specific legal way.

 

[najaB]

So in this case, did the traveller have a reasonable expectation* that the TOC would look after their luggage?

Only if the TOC said or implied (e.g. the guard took the case from the passenger) that they were taking responsibility. Otherwise I bear responsibility for my stuff.

It's no different to any other non-railway scenario, e.g. a cloakroom. If there's a staff member there taking coats then it's implied that they'll look after them, even if they don't actually say as much. If there's just an publicly accessible cloakroom then any loss is on me.