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Jason Zsoldos lost both arms and a leg when he collided with a train in 1994. He was struck at a railway crossing where the railway tracks intersect a roadway at the same grade: a level crossing. He was 22 years old.

In the trial that followed, the operators of the crossing acknowledged that they owed a duty to the public to keep the crossings safe. They argued that although they owed that duty, they did what was reasonably required to satisfy their obligations. They argued that they were not at fault for what happened. The Court disagreed.

In finding the operators of the crossing responsible for Mr. Zsoldos’s injuries, the Court heard evidence about the safety measures in place, and whether those measures qualified as reasonable in the circumstance. To determine what was reasonable, the Court considered whether there was a likely and known foreseeable risk of harm, whether the gravity of that potential harm was significant, what costs would need to be incurred for additional safety measures, and what was standard in the industry and mandated by regulation.

The Court held there was no question that level crossings present a safety risk which can be moderated by warnings put in place by the railway and road authority. After reviewing statistics on fatalities and injuries, and indicating that they risked stating the obvious, the Court noted the significant risk of injury or death in any collision between a train and a vehicle. It was also clear to the Court that technology existed to provide warning that a train was occupying the intersection, and the technology could have been adopted by a reasonable and prudent operator in the circumstances. The Court found that the cost of those additional safety measures would not be an impediment to implementation. In considering industry standards and the regulations governing level crossings, the Court held that compliance with industry standards, or with the minimum statutory or regulatory framework, did not insulate the operator of the crossing from responsibility.

Ultimately what was found was that a foreseeable risk of harm existed, the gravity of the potential harm was significant, the cost of additional safety measures was not an impediment to implementation, and compliance with regulation and industry practice was insufficient in the circumstances.

The crash of January 9, 2018, at the York and Colborne railway tracks in London, Onario, and the tragedy of Malcolm Trudell’s death is a stark reminder of the dangers posed by level rail crossings. It raises the same issues argued in Mr. Zsoldos’s case, about operators owing a duty to those crossing their railway tracks. It ought to raise questions about the safety mechanisms in place, about the known or foreseeable harm, the potential gravity of that harm, and the cost which would be incurred to prevent the injury. It ought to raise questions about whether this tragedy was preventable.

Level rail crossings pose a risk generally. More specifically, the York and Colborne railway crossing presents its own foreseeable risk of significant harm. It is a high traffic crossing, with multiple rail lines. Safety expert Richard Plokhaar analyzed all of London’s 65 level rail crossings and identified the York and Colborne crossing as a high-risk area. In 2013, William Seely, a 24 year old cyclist, was killed after being struck by a train at that crossing. The fact is, the York and Colborne crossing is a known danger, and additional safety measures are available, the cost of which should not be a bar to their implementation.

Level rail crossings are a fact of life in London. They are a known risk. The operators of these crossings owe it to the public to do what is reasonable to keep those crossings safe. If the situation warrants it, reasonable safety measures should go beyond compliance with applicable regulation or industry standard. The York and Colborne rail crossing has a history of injuries and fatalities. The injuries and fatalities at this crossing point to systemic safety deficiencies that must be addressed by the crossing’s operators. Implementing common sense solutions, better signage, sidewalk gates, more flashing lights, new and inexpensive safety technology, could be critical in preventing further tragedy. Failing to do so would be indefensible.

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