Explained: damage from an accident involving a train

Train accidents can happen for all kinds of reasons. A train passenger who trips over luggage, a train that hits a person walking on the track, or two trains that collide, to name but a few. These are often cases of damage in which someone is at fault, and in which the question of liability is therefore raised. For the train passenger and for third parties, it is not always clear who bears liability. This page describes the situation in the Netherlands.

Train passengers with personal injury

First of all, train passengers can suffer personal injury. Here, the Dutch Railways (NS) bears an important responsibility. NS has entered into a contractual relationship with the passenger and is obliged to transport the train traveller from one location to another. It goes without saying that this must also happen without damage.

To protect the train passenger, article 8:105 of the Dutch Civil Code (Burgerlijk Wetboek, BW) was introduced. This statutory provision sets out the following:

• The rail carrier is liable for the death or injury of passengers resulting from an accident that happened in connection with and during the transport.
• The rail carrier is not liable if the accident was caused by a circumstance that a careful carrier could not have avoided and whose consequences a careful carrier could not have prevented.
• The rule is that a careful carrier could have avoided physical or mental shortcomings of the driver, the train functioning poorly or the equipment functioning poorly. Equipment also includes the railway infrastructure.
• A mistake by a third party is only taken into account when no mistake at all can be attributed to the rail carrier.

In practice, the liability of NS goes a long way. NS can try to invoke force majeure, but as indicated above, that has little chance of success.

Providing proof as a passenger

NS does not keep passenger lists. A dispute therefore often concerns the question of whether a passenger was on the train at all. It is up to the train passenger to provide proof of this. That proof can be provided with an overview of the travel history of the OV-chipkaart (public transport smart card), or of the bank card used to check in and out (OVpay).

Own fault possible

In addition, it is of course always possible that a passenger is at fault themselves. Think, for example, of a drunk passenger who falls flat on their face when the train brakes abruptly. Perhaps the driver did make a mistake and their employer, NS, is liable after all. But there may well also be contributory fault. That presumption certainly exists when the passenger is the only passenger who suffered damage.

Compensation after a train accident

The liability of the rail carrier is limited by law. As a result, in the event of death or injury NS is only liable up to 175,000 units of account per passenger (article 8:110 BW and article 1 of the Decree under article 110 of Book 8 BW). A unit of account is a Special Drawing Right (SDR) of the International Monetary Fund, which means that the exact maximum limit in euros can differ from day to day.

However, the maximum limit no longer applies when there has been recklessness on the part of NS. Victims are then entitled to full compensation after all. This compensation must cover all actual costs. These include, for example:

• Material damage (e.g. damage to luggage or glasses)
• Medical costs that are not covered by the health insurance (excess, eigen risico)
• Loss of income
• Compensation for pain and suffering (smartengeld)
• Costs of domestic help
• A gym membership that can no longer be used
• A trip that can no longer go ahead
• Loss of a year of study
• And so on

In any case, personal injury in a train accident can run high. Passengers do not wear seat belts, the high speed can leave a train completely mangled, and in a collision the consequences are even such that death may well follow. The maximum amount mentioned above can therefore be called rather limited.

Train accidents with other causes

Other train accidents are of course less common. These include, for example, an accident in which a car is hit by a train.

In that case, the classic rules on causation play a role. If the car driver made a mistake, the third-party liability insurance (WA) will cover the damage. You do have to be careful with other insurance policies, such as casco insurance. These sometimes contain exclusions for collisions with a train. The Motor Insurers' Guarantee Fund (Waarborgfonds Motorverkeer) does not offer a way out either, by the way, because it only pays compensation in the case of unknown or uninsured motor vehicles. Here, the train is not unknown, not uninsured and, moreover, is not even regarded as a motor vehicle. This happened in 2017, for example, to a student whose car broke down right on a level crossing.

In some cases, it is possible that neither the keeper of the vehicle nor NS is liable, but the municipality is. That is, for example, one of the issues raised in an accident between a lorry and a train. Lorries there are said to get into trouble more often because of the uneven road surface and the difficult bend. In the end, it came to a collision. The municipality had already received complaints about this before and never intervened. So here the liability of the road authority comes into play. In this case, it is not clear whether the train driver made a mistake. According to some bystanders, he should have been able to stop much earlier. If that is the case, NS will also have to pay for the damage of the two occupants who were injured.

Finally, we can also refer to the train accident in Dalfsen (ECLI:NL:RBOVE:2017:3622). There, an employee drove a telescopic aerial work platform over a level crossing. Such a telescopic aerial work platform reaches a top speed of around 1 km per hour. As a result, the telescopic aerial work platform needs 76 seconds to cross the level crossing, while the cycle of the automatic half-barrier crossing (AHOB) only lasts 32 seconds (a cycle with an initial warning, the barriers lowering and the wait until the train has passed, until the barriers open again). In other words, the employee should have checked the train timetable, but had not done so. In the end, it came to a fatal collision.

The train derailed, the driver died and a passenger and the conductor were injured. The employee himself survived the accident by jumping out of the aerial work platform in time. The liability of the employee is established here. The employer also made a mistake by simply letting an employee start such a dangerous crossing. Finally, it can be pointed out that ProRail, the manager of the Dutch railway network, did not provide any instructions, procedures or information for such slow-crossing transport.