Carfra Lawton LLP | Victoria BC

Relaxed and Carefree Vacationers to be Reminded of the Risks of Everyday Life

A passenger enjoying a two-day luxury train tour from Vancouver, BC to Jasper, Alberta fell and broke her kneecap while walking from a crowded open-air vestibule to her “Gold Leaf” first class car: Varma v. Rocky Mountaineer Vacations Ltd. 2015 BCSC 1533. The court found that the train operator failed to protect the plaintiff from the objectively unreasonable risk created by walking through a crowded area on a moving train, and found it 65% liable for the plaintiff’s injuries. The train operator had drawn its passengers’ attention to the opportunity to take photographs of an upcoming scenic area from the open-air vestibule, which caused the vestibule to become particularly crowded.

In finding the train operator liable, the court affirmed that there is no duty to warn of ordinary risks and that passengers aboard a train are expected to be aware of the normal swaying, bumping and jarring that occurs during train travel. The court noted that this particular passenger had experience on trains and was familiar with both normal train movements and occasional sudden and dramatic deceleration and lunge stops. However, the court also noted that passengers on vacation aboard a luxury train, where they are being encouraged to be aware of and enjoy the scenery, should be expected to be “particularly relaxed and perhaps less careful than normal.” The operator was negligent for failing to provide a reasonable warning not to enter the vestibule when it was too crowded, or a reminder that it would not always be possible to reach a handrail. The operator was also negligent for failing to provide a handrail in the area where the plaintiff fell.

Case law summary by: Trevor Morley