Canadian Underwriter

Q&A: Via Rail passenger liability

March 2, 2012   by Suzanne Sharma

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The Via Rail passenger train that derailed on February 26 near Burlington, Ont. killed three engineers and injured 45 passengers. And while investigators continue to put the pieces together to figure out why the train was traveling at four times its maximum authorized speed, the $10 million class action lawsuit is in the beginning stages.

Canadian Insurance Top Broker interviewed Ian Gold of Thomas Gold Pettingill LLP to get some outside legal analysis as to what happens when transportation disasters like this occur, and more specifically, what type of proof is required in order for victims to be entitled to a settlement.

Q. What would be the necessary proof an insurance company would need so the passenger would be entitled to a portion of the settlement?

A. People would have to establish they were on the train. Class action lawyers will put notices in the paper [and online] asking people if they were involved in the case, and if so they might be entitled to damages. They’d ask for some level of proof such as evidence of purchased tickets, names of witnesses who can verify they were on the train (eg. contact information of others on the train, or people who dropped off or picked up the victim).

Additionally, the transportation company, in this case Via Rail, will have a list of passengers, which will go a long way in proving you were on the train. If the victim waited at the scene of the crash for officials to show up and provided a statement or interview, this also helps. The police and firefighters would then also have records during the course of their investigation.

Q. What are the different ways Via’s liability to passengers is triggered in this situation, regardless of what is ultimately determined to be the cause of crash?

A. It’s safe to assume that if you suffered injuries in that instance, you will be entitled to some type of recovery from someone, whether it is Via Rail or a third party (eg. the company involved in the maintenance of the track).

There may be different avenues of recovery as well. For example, the three workers who were killed in the crash may be entitled to some form of workers’ compensation, but I can’t confirm this. There are people who suffered personal injuries and people who may have suffered some type of psychological injuries.

Q. How can someone prove they were psychologically traumatized?

A. Like any type of damage you have to have proof. It’s one thing to say, “I have nightmares,” and another to prove it. To get any monetary compensation you’d have to back up your claim with evidence such as medical documents, prescribed medication and witnesses.

Q. Part of the Via Rail class action states that family members may be entitled to some sort of settlement. How does this type of compensation get triggered and what proof is required?

A. That would be under the Family Law Act, which essentially states that if you are an immediate relative of someone that is a victim you may be able to make a claim for loss of care, guidance, and companionship. For example, you break your leg due to a train accident and you can no longer drive your kids to the hockey arena. This impacts your life and as a result your family. Another example, you become withdrawn or argumentative and this impacts your relationship with your family. There can also be a loss of income component if you can’t work and provide for your family the way you were prior to the accident. In each case, the family is affected so they may be entitled to compensation, but they’d once again have to prove it with evidence from witnesses (eg. neighbours, family, employer) and/or medical documents.

Q. What advice would you give to victims that are involved in any type of transportation accident?

A. Obviously, no one should advance a claim when they haven’t suffered damages. But if you have then it will be extremely helpful to secure whatever evidence you can at the time. If you have a cell phone, take pictures of where you are and the people around you. Secure the names of witnesses, such as people you were sitting beside, and exchange business cards at the scene. Record your recollection of what happened as quickly as possible – send yourself an email or voice note stating exactly what happened during and following the incident. Also, seek legal advice and understand what your rights are.

This story was originally published by Canadian Insurance Top Broker.