COVID-19 and passenger transport

04 Jun 2020

The Government guidelines for a return to normality published week commencing 11 May 2020 included very little for the passenger transport industry, despite passenger transport slowly increasing with usage of the underground up 20% last week on the week before. The lack of in depth guidelines for the industry is probably because the public are being advised not to travel on public transport at the current time unless absolutely necessary.  The guidance published by the Government for people who work in or from vehicles does not mention passenger transport and the guidance issued for working safely during the Coronavirus pandemic does not include passenger transport.

As at 18 May 2020 Transport for London were operating 75% of their tubes, 80% of the London Underground and Docklands Light Railway, 100% of their rail services and 95% of their London trams and they were reopening more stations.

The Government has announced multi billion investment in rail operations and Transport for London to assist with making passenger transport operations safe for drivers, other staff and the public.

The transport secretary, Grant Shapps has said in reality at the moment there will only be effective capacity for 1 in 10 passengers on public transport.

Across the industry operators are installing more hand sanitiser points at stations and interchanges. One way systems are being laid down for passengers and reminders are everywhere for passengers to stay two feet apart. 

The DFT advise you to think, “is your journey necessary?” They advise the public to travel less on public transport and to consider all other forms of transport to include cycling and walking and if they have to travel, to travel off peak. They suggest employers should try and agree flexible working arrangements so that their employees can travel off peak.

Protecting passengers and key personnel

If it is not possible to keep two metres apart on public transport then passengers should keep the time they spend near others as short as possible and avoid physical contact.

Wearing face coverings will be compulsory on public transport in England from 15 June, although young children, those with a disability or those with breathing difficulties are currently exempt. According to Mr Shapps, "every precaution" must be taken as passenger numbers were expected to increase when lockdown measures were eased further. From 15 June, operators will be able to refuse travel or issue penalty fines for failure to wear a mask. NB:  In Paris they are introducing facial recognition software for the next three months to identify passengers not wearing masks on the Paris subway. 

Passengers are being advised to minimise any luggage they carry.  They should also observe the many notices that are being displayed indicating which seats may be used whilst on buses, coaches or trains to keep passengers apart and information on how to queue safely.  Additional screens, barriers and floor markings are being utilised and passengers may be requested to board through other doors or move to less busy areas.

Some key measures for passengers and those working in the industry to consider are:

  • Escalators will have signs indicating that users should stand six steps apart and only a certain number of passengers will be allowed in lifts at any one time.

  • TFL are publishing their 20 busiest stations so that they may be avoided by passengers.

  • Operators would be advised to increase the numbers of buses, coaches, trains and trams in operation to allow more passengers to travel safely.

  • Passengers are advised to take their most direct route and avoid busy interchanges.

  • There is a suggestion the elderly may be allowed to travel free on all forms of transport  in the near future.

  • Passengers may have to queue to enter a station.

  • Passengers are being advised to avoid consuming food and drink on public transport.

  • Passengers are being asked to wait for the next service if they cannot travel safely.

"There is a dual theme in public transport because it is necessary to keep passengers safe but also staff.  Too many bus and coach drivers have already died as a result of the virus.  Our Casualty, Injury and Disease teams believe that claims will be brought as a result of deaths in employment in non-health or social care occupations to include passenger transport."  

Also they advise there will be claims for employees developing the infection possibly even those without symptoms if there is a positive test this could be an actionable injury.  They advised there is a strong argument that Coronavirus is a “biological agent” pursuant to the COSHH Regulations 2002. This will inevitably encourage employee claimants.  In addition given the multiple potential possibilities of contracting Coronavirus there must be the potential for the relaxing of the “but for” test, and proof of “material increase in risk” being sufficient to establish causation.

Safety precautions for drivers

  • Drivers must be protected by screens and nobody should be allowed to sit in the seats immediately behind the driver. 
  • No cash should be used, all fares should be paid for in advance.  Contactless payments at all times.  Drivers should wear face coverings.
  • If possible passengers should board and alight through different doors and passengers who are boarding must wait for passengers to get off.
  • There will be a need for additional driver training and risk assessments to be undertaken.    Training on safe emerging evacuation procedures in the event of a road traffic accident or a similar incident.
  • Cleaning of buses, coaches, trams and trains must be optimum and cleaning of bus and coach depots and toilets on coaches and trains. 
  • Garages must be made safe and risk assessments undertaken. Employers and operators must undertake an appropriate COVID-19 risk assessment in consultation with Unions and employees.  If there are less than five employees in the business there is no need to record in writing the risk assessment but it must be shared with employees.  The HSE can advise in relation to these issues.
  • Passengers and employees are advised to wash their hands as soon as possible after a journey.
  • All drivers should be allowed to have a test if they report symptoms and if positive they must be quarantined.  Operators will employ decontamination services and anti-viral film applications will be applied to the interiors and touch screens. 
  • Employers and operators are also advised to ensure there is adequate support for their workers in relation to mental health and well-being and all reasonable adjustments should be made.
  • COVID-19 needs to be managed through social distancing and hygiene and not through use of PPE.

Developing a claims strategy is key

"Given the possibility of a very large number of claims for death and infection as well as the significant opportunity it represents for fraudulent claims, operators and their insurers must develop a carefully considered general claims strategy before making decisions on any individual cases."

In fact given the constantly developing scientific knowledge in respect of COVID-19 there may actually be some justification in arguing for a stop being placed upon any litigation pending any second or subsequent waves, or resolution of the epidemic. 

The issue of breach of duty is also highly dependent upon the process of balance of risk against the measures necessary to eliminate that risk and therefore there are arguments that the extent of the employers’ duty of care should be modified to reflect relevant issues relating to the pandemic including Government guidance and the global shortage of PPE.

NB:  If travelling abroad please check the latest Foreign and Commonwealth Office FCO advice and Coronavirus essential international travel guidance before travelling.  Check your specific plans with your airline, ferry, train operator and accommodation provider and inform your insurance provider.  The Coronavirus Covid-19 Safer Transport Guidance for Operators published by the CPT is also useful.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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