1. Major Rail Occurrence Forum Derailments Legal Ramifications Multi-party Occurrences Michael Tooma Partner Head of Occupational Health, Safety and Security (Asia Pacific) 30 April 2014

2. DR Congo Derailment 22 April 2014 74 people killed and 163 injured Freight train Speeding Derailment occurred as train navigated a bend in the track Train carrying passengers (illegally) 2 3. Lac-Megantic derailment, Canada 6 July 2013, a freight train operated by Montreal Maine & Atlantic Shortline Railway (MMA) containing 72 tank cars of crude oil ran away while unattended and derailed in Lac-Megantic, Quebec, Canada. The train was parked uphill in the nearby town of Nantes. Several cars explode, resulting in 47 dead and approximately half of the downtown was destroyed. Not enough brakes were applied to the train. The quality of the brakes applied may also have been factor. Furthermore, there was only one engineer operating the train at the time, despite the large amount of crude oil the train was carrying. 3 4. Paris derailment 12 July 2013, a train derailment south of Paris resulted in the deaths of six people. The cause of the accident appears to be a faulty rail switch. Frances national rail company, SNCF, had checked the switch on 4 July 2013, a week before the accident. The defective part of the switch was due to be replaced 4 years ago, amidst acknowledgements by SNCF in recent years that it had neglected secondary rail lines in favour of the more prestigious TGV network. The French Transport Minister, Frederic Cuvillier, admitted to a lack of resources being put into the network, while SCNF has been accused of running a sick network. 4 5. 5 Rail operator(s) workers compensation claim by injured workers - damages claim by injured members of the public and passengers - Damages claim by customers for breach of contract - damages claim by other rail operators, infrastructure managers regarding damage to rolling stock, rail infrastructure or commercial loss - damages claim by affected businesses for loss or damage to property or commercial losses Claim by rolling stock owner regarding damage to rolling stock Rolling stock manager - claim by rail operator and/or rail infrastructure manager - claim by injured workers, passengers or members of the public Civil Rail Infrastructure Manager - claim by rail operators - claim by injured persons - claim by rolling stock owner 6. 6 Criminal and Regulatory Coronial inquiry (if derailment causes a death) ATSB investigation (non-regulatory) National Rail Regulator investigation prosecution fro breach of the duty of care Accreditation may be affected Other regulators may be involved such as WHS Regulators (WorkCover NSW, Comcare etc) or EPA Risk Prosecution for breach of the rail safety duty of care Prosecution of officers Prosecution of workers Adverse findings and recommendations reputational damage 7. Tips for managing the legal risks Informationand DocumentManagement Legal Professional Privilege Privilege against self-incrimination Training in investigation management Contractual Rights Investigation Root cause investigation Comprehensive Reliable Independent Timely Digestible Forward looking PublicEngagement Media management Stakeholder management Internal communication Public report DealingwithRegulators Proactive engagement Exercise your rights Careful review of notices Plan for Court Insurance Ensure you have adequate cover for civil claims Ensure you have freedom to manage regulatory aspects Ensure you have D&O cover for legal costs Do not take out statutory liability insurance 7 8. Questions and Discussion 8 9. 9 International 10. Appendix 10 11. Interaction between WHS and rail safety laws - The Rail Safety National Law and the National Rail Safety Regulator commenced on 20 January 2013 in NSW, SA, Tasmania and the NT. - The ACT, VIC, QLD, WA are expected to come under the Rail Safety National Law at a later date but are currently administered under existing rail safety laws. - Harmonised Work Health and Safety (WHS) Laws have been implemented in the majority of jurisdictions in Australia (with the exception of Victoria and WA). - Both the Rail Safety Laws and the WHS Laws will apply to rail operations. 12. Rail Safety National Law contd Jurisdiction Act Regulations South Australia Rail Safety National Law (South Australia) Act 2012 Rail safety National Law National Regulations 2012 Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012 Rail Safety National Law (South Australia) (Transitional Arrangements) Regulations 2012 New South Wales Rail Safety (Adoption of National Law) Act 2012 No 82 Rail Safety National Law National Regulations 2012 Rail Safety (Adoption Of National Law) Regulation 2012 No 662 Northern Territory Rail Safety (National Uniform Legislation) Act 2012 No 27 Rail Safety National Law National Regulations 2012 Tasmania Rail Safety National Law (Tasmania) Act 2012 No 38 Rail Safety National Law National Regulations 2012 Australia Capital Territory* No current rail safety legislation No current rail safety legislation Victoria* Rail Safety Act 2006 Rail Safety Regulations 2006 Queensland* Transport (Rail Safety) Act 2010 Transport (Rail Safety) Regulations 2010 Western Australia* Rail safety Act 2010 Rail Safety Regulations 2011 * Until the Rail Safety National Law is passed in a particular jurisdiction, existing rail safety laws apply 13. Overview of Duties of Care under the WHS Laws Operation of the business or undertaking Organisation decision making and governance Work activities (including supervision) Circumstantial attendance at the workplace (i.e. visitors) Activity Person conducting a business or undertaking (PCBU) Officers Duty of Care Workers Duty of Care Others Duty of care (i.e. at a workplace) Reasonably practicable Due diligence Reasonable care Reasonable care Duty Holder Standard 13 14. Rail safety duties Designers, commissioners, manufacturers, suppliers and installers Rail Transport Operator Rail safety worker Ensure SFAIRP that the thing is safe if it is used for the purpose it was designed Must ensure SFAIRP the safety of the railway operations Take reasonable care with respect to their health and safety and the health and safety of others Cooperate with rail transport operator 14 Rail infrastructure manager and/or Rolling stock operator 15. Railway operations The construction of a railway, railway tracks, associated track structures and rolling stock Management, commissioning, maintenance, repair, modification, installation, operation, or decommissioning of railway infrastructure Commissioning, maintenance, repair, modification, or decommissioning of rolling stock The operation or movement or causing the operation or movement by any means of rolling stock or a railway service The movement or causing of movement of any rolling stock for the purpose of operating a railway 15 16. What is an officers duty of care? Rail Transport Operator Duty or obligation Officer must exercise Due Diligence to ensure the RTO complies with that duty or obligation 16 17. Definition of an officer 17 Officer Director Company Secretary Makes, or participates in decisions that affect a substantial part of the business Affects financial standing of the business Shadow directors Administrator, Liquidator, Receiver or receiver manager Trustee of a compromise or other arrangement 18. Due Diligence Due Diligence Acquire and keep up-to-date knowledge of WHS matters Gain an understanding of the nature, hazards and risks associated with the operations Provide and use appropriate resources & processes to minimise WHS risks Monitor information on incidents, hazards and risks and respond in a timely way to that information Ensure work health and safety and legal compliance Verify the use of these resources and processes 18 19. 19 Disclaimer Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski L.L.P., each of which is a separate legal entity, are members (the Norton Rose Fulbright members) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. 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