I have had problems with overcrowding on my train journey. I normally travel in a bit later than the regular commuter and am therefore able to buy a cheap day return. However, some months ago the train operating company restricted all reduced tickets to trains after 7pm in order to "prevent overcrowding". As a result, large numbers of passengers concentrate on the 7.07 train, which never has more than four carriages but is now exceptionally overcrowded with usually at least 10 passengers standing per carriage on a journey which is over 30 minutes before the first stop. Nevertheless, despite numerous complaints, the train operator has stubbornly refused to lay on extra carriages and I find myself now compelled to wait till the next train if I want a seat. This train arrives at my destination some 35 minutes after the first one. Do I have any remedy?

1. Negligent provision of services. When you buy a ticket you are purchasing services from the train-operating companies, which have to be provided with reasonably care and skill. This includes taking reasonable care to prevent overcrowding. The definition of “overcrowding" given by the Strategic Rail Authority, was that in relation to journeys of over 20 minutes’ duration a train is overcrowded if any passenger is forced to stand. Although the SRA has now been replaced by the this definition must still hold good. It is clearly foreseeable to any reasonable train operator in these circumstances that commuters will concentrate on this one train. Thus not to lay on at least one additional carriage would seem the sort of decision that no reasonable train operator would make. This is particularly the case as the situation has been caused by the train operator’s own measures designed to combat overcrowding. The train operator should thus be liable for breach of contract damages but this then raises the question of what is the measure of loss should be.

2. Compensation. It is not easy to determine the appropriate compensation in these cases. Case law does allow general damages for discomfort to be determined by the judge in cases where the contract provides for comfort and enjoyment but most cases involve ruined holidays not ruined commuter journeys. The company's passenger charter may indicate compensation but this is usually for delayed journeys not overcrowding. For delays the train operator usually provides for compensation of half the cost of a ticket if the “journey” is delayed by over 30 minutes. So in cases where you are forced to take the next train because of overcrowding on the 7.07 (and are thus “delayed in your journey” by 35 minutes) you should seek compensation under this provision by filling in the appropriate form.

3. Health and safety. It is often argued by the passenger users associations that overcrowding is a health and safety issue. It is undoubtedly the case that the Health and Safety at Work Act 1974 applies to the safety of rail passengers and indeed the rail companies involved in the Potters Bar disaster and others were fined heavily by the Health and Safety Executive. However, the HSE has made it clear that subject to certain exception, overcrowding in itself does not create health risks and is a matter of comfort rather than safety.

4. The Regulator. Passenger train companies operate under franchise agreements, which impose requirements as to the level of service. The train operator has to use all reasonable endeavours to prevent overcrowding (including ensuring that passengers have a seat for all journeys over 20 minutes). So this issue can lead to the imposition of penalties by the regulator and ultimately the loss of the licence. The current regulator is the Office of Rail Regulation (www.rail-reg.gov.uk) although ORR encourages passengers to complain first to the train company and then to a government watchdog, which is London Travelwatch (www.londontravelwatch.org.uk) or Passenger Focus for outside London (www.passengerfocus.org.uk).

We regret that we cannot reply to individual queries. The above must not be taken as legal advice; readers should consult a solicitor. Readers can e-mail queries to law@timesonline.co.uk

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