Cassidy v Metro Trains Melbourne Pty Ltd
[2023] VCC 1866
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-02799
| JULIE ANN CASSIDY | Plaintiff |
| v | |
| METRO TRAINS MELBOURNE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11 and 12 August 2022 and 17, 18 and 19 April 2023 | |
DATE OF JUDGMENT: | 18 October 2023 | |
CASE MAY BE CITED AS: | Cassidy v Metro Trains Melbourne Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1866 | |
REASONS FOR JUDGMENT
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Subject:TORT – NEGLIGENCE – DUTY OF CARE – BREACH OF DUTY
Catchwords: Transport accident – injured train passenger – hip, shoulder and psychological injury – causation – expert evidence – contributory negligence
Legislation Cited: Wrongs Act 1958; Transport Accident Act1986
Cases Cited:Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Wyong Shire Council v Shirt (1980) 146 CLR 40; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279; Swain v Waverley Municipal Council (2005) 220 CLR 517; Dahl v Grice [1981] VR 513; EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Hooper v Workforce Recruitment and Labour Services Pty Ltd [2022] VSC 239; Caterson v Commissioner for Railways (NSW) [1973] 128 CLR 99; Czatyrko v Edith Cowan University (2005) 214 ALR 349
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Madder with Mr M Seelig (10, 11 and 12 August 2022) Mr J Brett KC with Mr C Madder (17, 18 and 19 April 2023) | Arnold, Thomas & Becker |
| For the Defendant | Mr C Harrison KC with Mr S Pinkstone | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1The plaintiff, Julie Ann Cassidy, is a 69-year-old woman residing in Altona. She does not drive, and described herself as an ordinary everyday old lady who used the train as her principal mode of transport.
2The defendant, Metro Trains Melbourne Pty Ltd (“Metro Trains”), is the franchise operator of the electrified train service in metropolitan Melbourne. Metro Trains provides services to sixteen train lines throughout Melbourne, including the line which services Mrs Cassidy’s neighbourhood of Altona. As part of its current fleet operation, Metro Trains operates 226 six-carriage trains consisting of Comeng, Siemens Nexa, X’trapolis and High-Capacity trains.
3On 26 June 2014, Mrs Cassidy was travelling on a Comeng train (“the train”) on the Seaholme to Westona Line (Werribee bound). Upon arriving at Altona Station, she was unable to open the doors to exit the train without the assistance of another passenger. CCTV footage captured from within the train depicts Mrs Cassidy and her attempts to disembark; and footage from Altona Station depicts her exiting the train momentarily after it departed and falling heavily onto the platform (“incident”).
4Mrs Cassidy suffered a fracture of the neck of her right femur, scarring, injury to her right shoulder, traumatic arthritis, a staphylococcus aureus infection post “IM” nail insertion, vulnerability to further infection, psychiatric injury, and pain.
5Mrs Cassidy alleges that her injuries were caused by the negligence[1] of Metro Trains. A disability pensioner, she claims general damages only.
[1] Claims pleaded in the alternative under s14A(b) of the Wrongs Act 1958 for breach of duty as the occupier of the train; and for breach of the statutory guarantee in s60 of the Australian Consumer Law that services provided by Metro Trains would be rendered with due care and skill (a common law negligence standard) were not pressed at trial
The issues
6In this proceeding, the relevant legal principles are not in dispute.
7Metro Trains admit that Mrs Cassidy’s injury was foreseeable, in the context of several occurrences of injury and one death as a result of passengers opening carriage doors whilst a train was in motion before the incident in June 2014.
8In order to establish that negligence by Metro Trains caused her harm, Mrs Cassidy must establish that the negligence was a necessary condition of the occurrence of the harm.
9The starting point is for Mrs Cassidy to establish why she was initially unable to open the train doors in her carriage upon arriving at Altona Station.
10The evidence extended to the following three possible alternatives:
(a) firstly, that Mrs Cassidy did not exert enough pressure on the train door in order to overcome the static (minimal) pneumatic pressure holding it closed once the train driver had depressed the door ‘release’ button on the driver console;
(b) secondly, despite the train driver having released the doors in Mrs Cassidy’s carriage from pneumatic pressure, debris had lodged in the lower running track of the door which prevented it from opening;
(c) finally, that the door remained under 20 to 30 kg of pneumatic pressure at Altona Station on the night in question because the train driver failed to depress the door ‘release’ button for a sufficient period of time in order for the doors in Mrs Cassidy’s carriage to open.
11Next, I must determine whether Metro Trains is liable for Mrs Cassidy’s loss and damage in negligence.
12The liability of Metro Trains for breach of the duty of care it owed to Mrs Cassidy involved determination of whether:
(a) the train driver failed to press the door ‘release’ button for a sufficient period of time in order for the doors to open?
(b) the dwell time[2] at Altona Station should have been at least 20 seconds?
(c) Metro Trains should have retrofitted slim line handles to Comeng trains by June 2014?
[2] being the period of time a train remains at a station
13Finally, if any of those precautions ought to have been taken, whether such failure was a cause of the harm suffered by Mrs Cassidy.
14Metro Trains says that Mrs Cassidy forced the door open in order to disembark from a moving train, and so her injury was not caused by any negligence on its part; and alleges contributary negligence on the part of Mrs Cassidy which was a cause of her injury, loss and damage.
Relevant principles
15The circumstances in which Mrs Cassidy suffered injury occurred as a result of a transport accident as defined in section 3(1) of the Transport Accident Act 1986.[3]
[3] Amended Defence, paragraph [21]
16In determining a claim in negligence, it is necessary to identify, with some precision, the risk which ought to have been foreseen.[4]
[4]Vairy v Wyong Shire Council (2005) 223 CLR 422 at paragraphs [26] and [60]-[61], New South Wales v Fahy (2007) 232 CLR 486 at paragraphs [78], [116] and [220]
17The approach was succinctly stated by J Forrest J in Hardy v Mikropul Australia Pty Ltd as follows:
“It is necessary to identify with some specificity the nature of the risk which must be foreseen. It is not sufficient to address the issue generally, although it is unnecessary for the defendant to foresee the precise risk of injury or damage or how it may occur. ... .”[5]
[5] [2010] VSC 42 at paragraph [227]
18If the risk of injury as identified is foreseeable, the task is then to determine what steps, if any, should have been taken to alleviate or ameliorate the risk.[6]
[6] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, per Mason J
19It is well established that the task must not be informed by hindsight.[7]
[7]Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, [65], [135]; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454
20I will return to the relevant principles in relation to contributory negligence.
The incident
21On the night of the incident, Mrs Cassidy was travelling alone on a Comeng train to her home in Altona. She moved to the train door as the train was pulling up at Altona Station. When the train stopped, she was unable to open the carriage doors. A fellow passenger noticed Mrs Cassidy struggling and tried to help her to exit the train by forcing the train doors open. With the doors held open for her, Mrs Cassidy stepped out onto the platform. Unfortunately for Mrs Cassidy, at or about the time she was exiting the carriage, the train commenced its departure from the station. As Mrs Cassidy stepped out of the slow-moving train, she fell onto the platform.
22CCTV footage[8] of the incident taken from inside the train carriage depicted Mrs Cassidy struggling with the doors for a few seconds before a woman helped her to open the doors. Footage taken from Altona Station records Mrs Cassidy falling heavily onto the platform as she exited the train.
[8] Exhibits 1 (footage from inside the train) and 2 (from the platform)
23It is not in dispute that the train had been moving for about 2.5 seconds by the time Mrs Cassidy ultimately stepped out of the carriage and fell onto the platform;[9] or that the driver is solely responsible for operating passenger doors and checking passenger boarding and detraining before departing.
[9] Plaintiff’s submissions at T 352
The train driver’s evidence
24The driver of the train on the night in question, Cyril Jeremy Peiris, is very experienced, having driven trains since 1976. He drove Comeng trains up until 2016, and is familiar with their operation.
25Mr Peiris did not recall the night in question, as he was not aware that Mrs Cassidy had difficulty opening the doors, or that she fell onto the platform at Altona Station and injured herself. Mr Peiris explained that there was no way that he would know that a carriage door had not opened, unless a passenger pressed the emergency duress button. He only became aware of the incident in the course of this litigation.
Train door procedures
26
Mr Peiris explained the procedure he adopted, in part by reference to the driver’s compartment control desk, depicted below:[10]
(Driver’s compartment on Comeng train)
(Centre console panel on Comeng train)
[10]Extracted from Exhibit 23 – training module 83, “Cab Equipment Comeng”, PSCB 438 and 442
27After pulling into the station, when the whole train is ‘in clear’ on the platform, the driver brings the train to a stop. Brake pressure is checked before pressing the appropriate door ‘release’ button for the left or right side of the train depending upon the location of the platform. This should release the pneumatic pressure holding the doors closed whilst the train is in motion. It was Mr Peiris’ practice to depress the door ‘open’ button only momentarily.
28Once pressed, the ‘close’ button on a Comeng train flashes until all the doors are closed. It is only when the ‘close’ button changes from a flashing lamp to a steady blue light that the traction interlock releases, and the train is able to move.
29Although CCTV is available to the driver in the cabin, the screen only shows one camera at a time. There are four cameras in each carriage, and so a six carriage train has 24 cameras in total. In the absence of a distress call from a particular carriage, the driver must manually scroll through each camera view one at a time to access footage from a particular carriage at any given time.
FDCL light
30Mr Peiris explained that if a person forces a door open, the Faulty Door Close Light (“FDCL”) in the ‘door control’ section of the centre console panel (and being the middle blue door ‘close’ button pictured above) flashes after a 2.7 second delay.[11]
[11] The door needs to be held open for at least 2.7 seconds for the FDCL lamp to illuminate
31If the FDCL started flashing when Mrs Cassidy forced open the doors at Altona Station, Mr Peiris said he was unlikely to have noticed, as he would have been focussing straight ahead on the signals and track.[12]
[12] T 248 L 1-3; 242
32The traction interlock does not operate if someone forces a door open while the train is moving, or after the door close sequence is complete.
Dwell time
33In his experience, depending upon passenger loading and the time of day, the dwell time at any station is a minimum of 12 to 15 seconds, but it can be as little as 11 seconds if there are no passengers getting on or off the train. Dwell time may be more than 20 seconds.
34He was aware that 20 seconds was the amount of time trains were timetabled to stop, but considered it to be a guide for drivers rather than a safety requirement. He does not recall ever receiving an instruction to stay a minimum of 20 seconds at every station; his evidence was that dwell time is at the train driver’s discretion.
35Michael Wyatt, General Manager of Timetabling and Planning, Operations and Passenger Delivery at Metro Trains also gave evidence to the effect that there are no minimum dwell times; and that train drivers have discretion depending on the number of passengers embarking and disembarking.
36The dwell and run time for the train on the night of the incident is recorded.[13] Mrs Cassidy’s train arrived at Altona Station at 21:51:08 and departed 17 seconds later at 21:15:25.
[13]Exhibit 16
The expert evidence
Mr Phillip Barker
37Phillip Barker is a Railway Safety Consultant with 40 years of experience in rail safety regulation and accident investigation.
38In substance, his opinions relevant to the principal facts in issue were as follows:[14]
(a) a nominal 20 kg of force is applied by pneumatic pressure to a door that has not been released, whether the train is stationary or in motion;
(b) a slim line door handle to mitigate the risk of doors being opened by passengers when in the closed position is one feasible engineering control, suitable to manage the risk;
(c) fitting a flat handle to the passenger doors would have reduced or eliminated risk of injury to Mrs Cassidy if applied prior to the incident;
(d) had the train remained stationary at Altona station for 20 seconds, it is highly likely that Mrs Cassidy’s exit would have been completed safely before the train started to move away;
(e) if there was debris affecting the door tracks, the doors would be expected to open to the point where the debris took effect;
(f) the presence of debris is more likely to affect doors closing rather than doors opening, as while the doors are open the track is exposed to the accumulation of debris;
(g) the symptoms indicated by the door which Mrs Cassidy had been attempting to open with the other passenger were not consistent with jamming; rather, it appeared that it had not “de-aired” sufficiently or at all when released, maintaining the doors in the closed position under a nominal 20 kg of air pressure;
(h) when Mrs Cassidy was attempting to open the doors unaided, she was able to open them a short distance but they then re-closed. This would not occur if they were jammed by debris - they would stop at the point of jamming but would not re-close; and
(i) it is likely that the train driver did not press the door ‘release’ button for the required two continuous seconds, which resulted in the doors in Mrs Cassidy’s carriage not opening on the train at Altona railway station on 26 June 2014.
[14] Exhibits 17, 18, 19 and 20
39Mr Barker’s oral evidence included that:
(a) the doors reclosing after Mrs Cassidy had forced them open was not consistent with the debris hypothesis. He explained that if debris was jamming the doors shut, you would not expect that Mrs Cassidy would have been able to open the doors and the doors then return to the closed position. On this basis, Mr Barker concluded that whilst the debris hypothesis cannot be ruled out, it is unlikely;[15] and
(b) the most likely reason that the doors failed to open was that they failed to de-air because the driver did not press the door ‘release’ button for the requisite time.[16]
[15] See T207 L26-28
[16] See T226 L1-3
Mr Michael Potts
40Michael Potts is the head of Fleet Maintenance at Metro Trains and holds certificate qualifications in Engineering, a Masters in Business Administration, and is an electrician and instrument fitter. He commenced working at Metro Trains in 2012.
41Mr Potts explained the operation of Comeng train doors as follows:
14. When a driver arrives at a station he/she would typically press the doors open button on the side of the train adjacent to the platform.
15. Once the doors open button was pressed, the doors of the train on the side adjacent to the platform would be ‘unlocked’ in that air pressure holding them ‘locked’ would be released. Passengers could then apply lateral force to the door leaves to open the doors. The force typically required to open the doors when ‘unlocked’ was around 3kg of lateral force.
16. To close the doors, the driver would press the doors close button on the driver console. This would send an electrical signal through a Programable Logic Control, electric relays and electro / pneumatic valves activating the pistons in each door which would force the door leaves closed under air pressure. Once closed, the doors closed button / light on the driver’s desk would illuminate and the doors would be considered proven closed.
17. Once proven closed, a lateral force in excess of 20kg – and usually closer to 30kg – would need to be applied in order to ‘force’ open the doors leaves. The actual force required on each set of doors might have varied depending on the individual set up of the system and pistons holding the doors closed.
42Based on his rejection of the door ‘release’ button hypothesis, it was Mr Potts’ opinion that the more likely explanation for the doors failing to open was that there was debris stuck in the door. In his experience, items like AAA batteries, bottle tops, lolly sticks, coins, or ear buds are all capable of making doors jam.
43Mr Potts accepted that it was more likely that the debris would have prevented the door from closing than from opening,[17] but still considered that the debris hypothesis was more probable.[18]
[17] T 287 L 9-10
[18] T 287-288
Why was the plaintiff unable to open the train door at Altona Station?
44The theory that Mrs Cassidy was unable exert enough pressure on the train door may be disposed of shortly.
45It is not in dispute that Mrs Cassidy and the other passenger had to force the train doors open. Mr Barker and Mr Potts agree, and the CCTV footage discloses, that Mrs Cassidy was capable of applying appropriate force to the door in order to open it if not under pneumatic pressure. Any slight variance in static air pressure does not explain the difficulties experienced by Mrs Cassidy and the other passenger.
46Mrs Cassidy did not cavil with the submission from Metro Trains that if debris in the train door track was the cause of the doors failing to open, then Metro Trains was not negligent. The transient nature of items of rubbish which might jam a door, and Metro Trains’ usual practice of cleaning the train door seals at the conclusion of service for the day, resolved into the position that Metro Trains was not in breach of its duty to Mrs Cassidy if this is what occurred.
47This issue turned on the evidence as to the “Debris hypothesis” as opposed to the “Door ‘release’ button hypothesis”.
Was debris lodged in the lower running track of the door which prevented it from opening?
48Metro Trains urged upon me to make a finding that debris lodged in the door seal was the likely cause of the door failing to open. I reject that submission for the following reasons:
(a) no debris was located in the door at the end of the day during the cleaning process;[19]
(b) debris, if present and subsequently dislodged, is more likely to be located at the centre of the doors, thereby preventing the door from closing rather than opening;[20]
(c) the predominance of incidents recorded by Metro Trains of debris causing door failure involve doors failing to close;[21]
(d) Mr Barker’s evidence that doors are more likely to jam open, not shut.[22] On the basis of the records of train defects he had inspected, Mr Potts agreed with Mr Barker on this issue;[23]
(e) Mr Potts’ evidence that if debris was the culprit, the door must have been jammed shut in the fully or nearly fully closed position.[24] He also said that the location of any such debris would determine if the door could “come back at you”.[25] I reject his evidence to the extent that he was asserting that debris could result in the behaviour of the door recorded by the CCTV footage from within the train;
(f) debris jamming the door would likely result in the door becoming fixed in a jammed position;[26]
(g) finally, and most importantly, the CCTV footage[27] depicts the door returning to its closed position after being forced open to a distance of approximately 50 millimetres on numerous occasions during the time in which the evidence indicated that the train doors should have been open/released during the dwell time at Altona Station.[28] There was no evidence that any item of debris was ever present or could, if present, have resulted in the door behaving in this manner.[29]
[19] Exhibit 20 - Statement of Mr Michael Potts, dated 23 March 2023, page 2
[20] T 283, L 1-6; T 287
[21] Exhibit 19, PSCB 656
[22] Exhibit 19, PSCB 656; T 191, L 4-6; T 207, L 11-14
[23] T 269, L 16-19
[24] T 268 L 12
[25] T 268 L 28
[26] Exhibit 17, PSCB 550-551; T 190-191; T 268, L17
[27] Exhibit 1
[28] See cross-examination of Potts, T 280-283, 287
[29] Exhibit 20, pages 1-2; T 287, L 21
49On the evidence before me, the debris theory is only a very remote possibility, and I reject it.
Did the door remain under pneumatic pressure because the train driver failed to depress the door ‘release’ button for a sufficient period of time?
50The remaining theory is that the failure by the train driver to depress the door ‘release’ button for at least one second resulted in the train doors in Mrs Cassidy’s carriage remaining closed under 20 to 30kg of pneumatic pressure during the dwell time at Altona Station.
51The starting point is the relevant ‘Metro Trains driver training module 13’[30] for Comeng trains in use in June 2014. Under the heading, ‘Stopping at Platforms’, the module states that:
When a train stops at a platform to pick up or set down passengers, the Driver, after ensuring that the whole train is on the platform, must press the ‘DOORS RELEASE’ button on the platform side of the train …
To ensure the doors are released, the ‘DOORS RELEASE’ button must be firmly pressed home for two continuous seconds.
Failure to press the button for two continuous seconds could cause the blue indicator lights to dull, with some saloon doors being released and others remaining locked.[31]
[30] Exhibit 23
[31] Ibid, at PCB 397
52Data recorder files from the time of the incident which would have established the time the train driver depressed the door ‘release’ button were not retained by Metro Trains.
53A number of witnesses gave evidence relevant to this issue.
Mr Barker
54In Mr Barker’s opinion, the most likely reason that the doors failed to open was that they failed to de-air because the driver did not press the door ‘release’ button for the requisite time.[32]
Mr Peiris
[32] See T226 L1-3
55Mr Peiris was not aware that the doors of Mrs Cassidy’s carriage had failed to open, and had no recollection of the night Mrs Cassidy was injured.
56When it was suggested to him by Mr Harrison KC that one explanation for Mrs Cassidy having trouble opening the doors was that he did not press the door ‘release’ button for long enough, Mr Peiris responded that, “No…they're instant, instant press. Instant touch…they're instantaneous, just like your lift buttons”. [33]
[33] T 245
57Mr Peiris conceded in cross-examination that:
(a) there was a requirement to press the door ‘release’ button firmly for two continuous seconds to ensure doors are released;[34]
(b) he does not follow the instruction;[35]
(c) in his career, nine times out of ten “you just touch the buttons and [the doors] will release”;[36]
(d) he has seen passengers struggling to open doors from the platform;[37]
(e) he cannot tell if somebody is having difficulty opening a door to exit the train because he cannot see inside the carriage; and
(f) if Comeng train doors failed to open, he would not know.[38]
[34] T 252
[35] T 253 L6
[36] T 252
[37] T 246
[38] T 254 L 1-7
58Mr Peiris’ evidence was that he had received no training whatsoever since 1981.[39]
[39] T 249
59On the basis of his evidence as set out above, I find that Mr Peiris:
(a) knew about the requirement to press the door ‘release’ button firmly for two continuous seconds to ensure all doors are released;
(b) did not press the door ‘release’ button firmly for two continuous seconds at Altona Station on 26 June 2014, instead followed his usual practice of pressing it “instantaneously”.
Mr Potts
60Mr Potts did not agree with Metro Trains’ driver training module for Comeng trains which referred to the need to press the door ‘release’ button for two continuous seconds.[40] He understood that drivers need to press the door ‘release’ button for one second in order for doors to open.[41]
[40] Exhibit 23; T 283 L 18
[41] T 283-284
61I accept his opinion that:
(a) the failure to depress the door ‘release’ button for a sufficient time is a plausible explanation for the door failing to open on 26 June 2014;[42] and
(b) driver miscalculation of time spent pressing the door ‘release’ button – categorised as “driver error” – was a consequence of “the system design … requiring a duration of button press which allows the electrical pneumatic system time to fully act.”[43]
[42] Exhibit B
[43] Exhibit B - emails between TAC and Mr Potts dated 13 April 2023
62In an email to the defendant’s solicitors, Mr Potts stated that his team only investigates door system defects if drivers have pressed the door ‘release’ button for at least one second,[44] which “is sufficient to energise or release all of the doors.”[45]
[44] Exhibit B
[45] T 267
63Mr Potts’ understanding of the impact of failing to press the door ‘release’ button for two continuous seconds appeared to conflict with the training module. On his understanding:
“I think that the door – the driver must've pressed the door open button for sufficient time to open the doors. The way that the circuit is set up, um, it's difficult to imagine how one set of doors can be de-aired, and not another set of doors.” [46]
[46] T 269 L 7-11
64I prefer the evidence in the Metro Trains training module: the door closing system on a Comeng train included that doors in one carriage might not open if a driver does not press the door ‘release’ button for a sufficient time. As Mr Potts conceded, the module would have been written by someone who had studied the correct operation of the doors and who was familiar with their operation.[47] In answer to a specific question from the Court, Mr Potts agreed that the doors may operate differently on a carriage-by-carriage basis.[48]
[47] T 285
[48]T 284-286
65Notwithstanding his evidence to the contrary during his cross-examination, I find that Mr Potts, and Metro Trains, was aware that if a driver did not depress the door ‘release’ button for >1 second, not all train carriage doors may open.
66On the whole, Mr Potts’ evidence is consistent with the driver pressing the door ‘release’ button for less than a second, causing the doors in Mrs Cassidy’s carriage to fail to open.
67I also rely upon his concessions under cross-examination that:
(a) the doors would not likely spring back unless they were under pneumatic pressure;
(b) it is likely the train driver pressed the door ‘close’ button eight seconds before the train departed; and
(c) the train door should not have been under pneumatic pressure during the remaining dwell time when it was observed in the CCTV footage to be springing back against the force being applied by Mrs Cassidy and her fellow passenger.[49]
CCTV footage
[49] see T 279-282
68The most powerful evidence in this respect is the recording of the CCTV footage taken from within the carriage of the attempts by Mrs Cassidy and the Good Samaritan to open the door on no less than five occasions during the period when the doors should have been ‘open’, and on each occasion the door springing shut. The only credible explanation for the door behaving in this fashion is that the door remained closed under full design pneumatic pressure.
69The CCTV footage from the station also clearly shows other carriage doors on the train opening.
70Where expert evidence, properly adduced, leaves open two possibilities to explain a particular occurrence, and the objective evidence otherwise establishes that one of those possibilities is more probable than the other, a court is entitled to make a finding by way of inference that the most probable cause is the likely cause.[50]
[50] Dahl v Grice[1981] VR 513 at 515; and EMI (Australia) Ltd v Bes[1972] 2 NSWLR 238
71I am satisfied that the evidence is sufficient for me to draw the inference that the reason the door remained under pneumatic pressure was because the train driver failed to depress the door ‘release’ button for a sufficient period of time. That evidence includes:
(a) the CCTV footage referred to above;
(b) the evidence of Mr Potts and Mr McDonald of the function of the door which involves pneumatic pressure of between 20 and 30 kilograms force being required to open the door if not released by the train driver;
(c) Mr Peiris’ insistence that the door ‘release’ button functioned instantaneously upon depressing the button. He failed to depress the button for one second in order to ensure all of the carriage door circuits operated to release the doors, let alone the two seconds stipulated in Metro Trains’ training module;
(d) historical train log data analysed by Metro Trains in relation to door defects resolved in a finding by Metro Trains that a period of one second duration of depressing the door ‘release’ button is required to de-air doors;[51]
(e) there is no evidence that other doors opened in this particular carriage at Altona Station that night; and
(f) doors in other carriages on the train appeared to have functioned correctly.
[51] Exhibit B
72Accordingly, I find that the reason Mrs Cassidy was unable to open the train door and safely disembark from the train was the failure by the train driver to depress the door ‘release’ button for a sufficient period of time to allow the electrical-pneumatic system to act fully and release the door on the carriage in question.
Is Metro Trains liable for Mrs Cassidy’s loss and damage?
Foreseeability
73It is well-known to suburban train operators, including Metro Trains, that passengers will attempt to force open train doors, particularly when trying to disembark at a station.[52]
[52] Cross-examination of Potts, T 278 L 26-30
74Not only was the risk of a passenger being injured when attempting to force open closed doors to exit a train in motion or about to depart foreseeable, that risk had eventuated prior to Mrs Cassidy’s injury. Table 5 of a Metro Trains’ Comeng Powered Saloon Passenger Doors SFAIRP[53] Assessment Report dated 19 August 2015 records[54] twelve serious incidents, and one fatal incident, over the previous five year period in the scenario of a door being forced open and a person exiting the train.[55]
[53] So far as is reasonably practicable
[54] As at April 2014
[55]Exhibit C - Table 5, Summary of Categorisation of Incident Data Reviewed by Metro Trains, PCB210
75Metro Trains did not suggest that Mrs Cassidy’s injury was not foreseeable. The case was defended on its part by conceding the existence of a duty, but submitting it was not breached; and, if breached, it nevertheless did not cause Mrs Cassidy’s injury.
Negligence
76The risk that passengers could force open doors of a moving train, or one that is about to depart from a station, and could be seriously injured as a result is not farfetched or remote.
77Metro Trains had a system where the train doors closed under pneumatic pressure were able to be opened when the train was starting to move or was moving.
78Assessed prospectively, there was a clear risk of injury which should have been anticipated by Metro Trains. The risk of injury was high with the possibility of the production of a serious or fatal injury.
79In order to succeed, Mrs Cassidy must establish reasonable steps that should have been taken by Metro Trains to alleviate or reduce that risk, which it failed to take; and that negligence was a cause of her injury.
Should the train driver have pressed the door ‘release’ button for two seconds?
80The risk eventuated on 26 June 2014 when the doors on Mrs Cassidy’s carriage did not open at Altona Station at all due to driver error.
81Mr Pieris was quite adamant that the procedure he adopted in order to release pneumatic pressure to the doors, thereby allowing passengers to disembark, involved pressing the relevant door ‘release’ button momentarily. He did not depress the door ‘release’ button for one, or two, seconds because he believed the electronic function of the door ‘release’ circuit meant that the doors opened instantaneously upon pressing the release button. It is not a case of inadvertence.
82In the circumstances I find Metro Trains was negligent. It ought to have implemented and enforced its requirement to depress the door ‘release’ button for two seconds. There is no burden placed upon Metro Trains if it complies with its existing system for opening carriage doors safely at stations.
83The driver was also negligent. Despite following a different procedure for many years, in the light of Mr Peiris’ evidence referred to at paragraph [55] above, the reasonable train driver ought to have followed the requirement to depress the door ‘release’ button for two seconds, and not merely pressed the button “instantaneously”.
84I find it unlikely that Mr Peiris was given no training at all by Metro Trains since 1984, as he was apparently aware of the requirement to depress the door ‘release’ button for two seconds. If that evidence is correct, however, then Metro Trains breached its duty of care to Mrs Cassidy by failing to train Mr Peiris appropriately in the safe operation of Comeng trains in accordance with training module 13.[56]
[56] Exhibit 23
Was a minimum dwell time of 20 seconds a reasonable precaution?
85I accept the evidence of Messrs Peiris, Potts and Wyatt that the guideline of 20 seconds for dwell time was not mandatory, and dwell time at a given station was subject to driver discretion. This was a reasonable system, having regard to the wide variance in passenger loading and unloading at different times of the day and locations. Taking into account that a reasonable system must accommodate passengers of different capacities, there is no evidence that Metro trains had ever experienced any issues in the past with insufficient dwell time at stations. Further, absent driver error in opening the doors, the dwell time of 17 seconds at Altona Station on the night in question was reasonable. The plaintiff’s claim on this basis fails.
Should Metro Trains have retrofitted slim line handles to Comeng trains by June 2014?
86The plaintiff also alleges that Metro Trains failed to respond to a known hazard, being that Comeng train doors could be forced open, and passengers could be injured as a result.
87It is not in dispute that responsibility for the safe operation of the train lay with Metro Trains.[57]
[57] T 271-273
88Metro Trains submit that the evidence does not establish any reasonable precaution which should have been taken which would have reduced or avoided the risk of injury.[58] A reasonable response to the risk was to investigate, design and test the slimline door handles which were installed in 2015 and 2016.
[58]Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279, paragraphs [68]-[70]; see also McHugh J in Swain v Waverley Municipal Council (2005) 220 CLR 517, [40]
89In my view, Metro Trains was negligent in maintaining a system as at June 2014 where Comeng train doors under pneumatic pressure were able to be opened while a train is in motion, or about to depart from a station.[59] Mrs Cassidy was able to disembark from the train when it was unsafe and hazardous for her to do so, exposing her to a risk of injury.
[59] Particulars of negligence (d), (k) and (l)
90On 22 September 2011, Transport Safety Victoria (“TSV”) issued a media release in relation to its concerns about the safety of passenger doors on Comeng Trains, which are able to be forced open.[60]
[60] Exhibit 4, PCB 44
91Despite TSV issuing a safety notice requiring the Department of Transport to address the safety issues associated with the Comeng doors, and extensive consultation with Metro Trains about the issue, at the time of the media release there were still no “committed plans to address the safety risks”.
92On 18 July 2012, TSV wrote a letter to Bruce Kemp, general manager for Health, Safety, Environment and Quality for Metro Trains.[61] The letter set out the view of TSV’s safety director that, “passenger doors on Comeng trains do not meet contemporary design standards, noting that a number of incidents associated with the configuration and operation of the passenger doors on Comeng trains have occurred”. One of the main categories of incidents highlighted was “passengers forcing train doors (which may subsequently lead to passengers being caught in train doors)”.[62]
[61] Exhibit 5, PCB 45-47
[62] PCB 45
93TSV warned that if the safety measures do not meet the requirements of the Rail Safety Act 2006 (Vic), the safety director would impose a new condition on Metro Trains’ rail operator accreditation under s55(1)(b) of that Act, to the effect that Comeng trains were not to operate beyond their design life unless modifications were made to reduce the risk of incidents of passengers being caught in train doors, passengers forcing train doors and trains departing stations with passenger doors open.[63]
[63] PCB 46-47
94Metro Trains responded by letter dated 12 September 2012, stating that it had proceeded to a proof of concept and a static trial of a modified door design to mitigate the risk, with the project to commence later in September 2012.[64]
[64] Exhibit 8 - Correspondence from Metro Trains to TSV dated 12 September 2012
95In cross-examination, Mr Potts agreed that by November 2012, despite extensive refurbishment work being done on passenger doors for Comeng trains, this work did not include any enhancements to the safety of the doors in response to issues that had been raised by TSV in 2011.
96In September 2013, R2A Due Diligence Engineers reported to Metro Trains its findings of the ‘Comeng 40-Year Service Life Due Diligence Review’.[65] The review “used a combination of project due diligence and safety due diligence techniques and was completed over three workshop sessions” in August and September 2013,[66] a commendably brief period.
[65] Exhibit 11, PCB 77-106
[66] PCB 83
97It identified that the installation of slim line door handles to replace external and internal door handles would reduce the risk of passengers forcing doors open by 95 per cent It was “simple & relatively inexpensive”;[67] and slim line door handles “[c]an be installed during routine maintenance activities” with no impact on operations;[68] and “should be implemented as soon as possible.”[69]
[67] R2A estimated the cost at $2 million: PCB 95
[68] PCB 95
[69] PCB 96
98The old and new handles are depicted below:[70]
[70] Exhibit 10
99In Mr Barker’s opinion, the lead time from proof of concept and static trial in September 2012 to installation might have been 12 months to 2 years.[71] I accept that general time frame as likely to be accurate.
[71] Exhibit 17, SPCB 574
100On the evidence before me, the process of design, trialling and testing the slim line door handles on the Comeng fleet did not commence until 2014[72] – two to three years after the September 2011 press release.
[72] Exhibit A, statement of Potts, [24]; T 264, L 16
101The evidence explains the total retrofit process occurred over a likely time frame of up to two years, including design, trialling, testing and due diligence (two months in 2013, and an unknown period in 2014), and installation over 2015/2016,[73] funded by the Department of Transport.[74]
[73] T 264, L 27
[74] T 262
102The evidence of Mr Potts does not explain the delay between identification of the safety risk at the latest in September 2011, and the due diligence report to Metro Trains in September 2013;[75] nor why the subsequent process of retrofitting slim line door handles to the Comeng fleet did not commence until 2014, and was not completed until 2016.
[75] Exhibit 11
103I find that the reasonable train service operator ought to have addressed without delay the known safety risk of unsafe doors at the latest by the time of the request by TSV to do so made in September 2011, with the result that slim line handles would likely have been installed to the fleet by June 2014.
Causation
104If the driver had depressed the door open/release button for at least one second, Mrs Cassidy would not have been injured, as the pneumatic pressure would have been released and she would have been able to open the train doors in her carriage at Altona Station.
105I infer as a matter of common sense that a reasonable train driver would have followed training and instruction, if it was provided in accordance with Metro Trains training module 13,[76] to press the door ‘release’ button for two seconds to open all carriage doors at a station. If I am wrong about that, then any such failure to follow procedures at a station in accordance with training module 13 in order to open all carriage doors constitutes negligence in any event.
[76] Exhibit 23
106If slim line handles were fitted to the doors, Mrs Cassidy and the other passenger would not have been able to open the doors under pneumatic pressure, with the result that Mrs Cassidy would not have been injured either.
Findings
107For the reasons set out above, I find that:
(a) in order for the doors in each carriage of the train to “open”, the train driver must depress the door ‘release’ button on the driver console for at least one second;
(b) the train driver failed to depress the door ‘release’ button for a sufficient period of time in order for the doors in Mrs Cassidy’s carriage to open at Altona Station;
(c) as a result, the train door remained under pneumatic pressure at all relevant times;
(d) this is the reason Mrs Cassidy was unable to open the train door in her carriage safely upon arriving at Altona Station.
108I find Metro Trains negligent in failing to take reasonable steps to have train doors that enabled members of the public including Mrs Cassidy to disembark safely.
109I find the train driver negligent in failing to depress the door ‘release’ button for a sufficient period of time in order for the doors in Mrs Cassidy’s carriage to open. Metro Trains is vicariously liable for the negligence of the driver.
110In the alternative, I find Metro Trains negligent in its training of drivers. A reasonable train operator should have provided clear training to its drivers that the door ‘release’ button on a Comeng train must be depressed for two seconds in order to release doors from pneumatic pressure. Its failure to do so was a cause of the harm suffered by the plaintiff. On the evidence available to me, I infer that had Metro Trains provided appropriate training to the train driver, it is likely that he would have done so. If such training had been provided and he did not follow it, then that would constitute negligence in and of itself.
111Further, Metro Trains failed to respond to a known hazard of passengers forcing doors open. Retrofitting of slim line handles would have prevented Mrs Cassidy from opening the doors of the train whilst under pneumatic pressure.
112I find that a reasonable train operator upon notice of this risk since at least 2011, particularly in light of the gravity of the consequences should the risk eventuate, would have addressed the risk of doors being opened on moving Comeng trains in this manner prior to June 2014.
113If any of these precautions had been taken, then either:
(a) the doors would have been released from pneumatic pressure, and Mrs Cassidy would have been able to open them and disembark safely from the train; or
(b) Mrs Cassidy would not have been able to open doors under pneumatic pressure fitted with slim line handles, and she would not have suffered injury.
Contributory negligence
114Metro Trains contended that Mrs Cassidy’s contributory negligence should be assessed at 70 to 80 per cent. Mrs Cassidy submitted that there was no contributory negligence, and that her actions were a classic case of mere inadvertence, which the authorities distinguish from negligence;[77] and that, if the Court was to find against her, contributory negligence should be assessed at between 10 to 20 per cent.
[77] See Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202, [29]
115The key factual dispute relevant to Metro Trains’ allegation of contributory negligence is whether Mrs Cassidy knew the train was moving when she disembarked. Metro Trains submitted that she was aware the train was moving, and made a deliberate and risky decision to step out of a moving carriage,[78] which could not be considered inadvertence in the way that the case law contemplates inadvertence as a means of resisting a claim of contributory negligence.
[78] T348, L9-13
116Mr Brett submitted that Mrs Cassidy had no knowledge of the train being in motion at the time the doors were forced open.
Did Mrs Cassidy know the train was moving when she disembarked?
117Mrs Cassidy gave consistent evidence that she had no knowledge that the train was moving:
Q: “So, having seen [the CCTV footage] one last time, do you agree with me that as [the other passenger] starts to pull the door open the train is starting to move?---
A: It's a very close shave. Like I said to you, it's very close. I told you in the split-second going from train to platform. A very close shave.”[79]
[79] T115, 14-19
And:
Q: “Do you agree with me, the tape shows that it's moving, the train is moving when you get off?---
A: If it was, I wasn't aware of it … .”[80]
And:
Q: “… I'm suggesting to you that when you stepped off the train while it was moving, you knew that was a risky thing to do?---
[80] T123, L6-8; see also T96, L18-20 (“because to my knowledge the train was stationed all that time”); T96 L13-14 (“that train was stationed until I stepped from the train to the platform”); T100, L12-13 (“As far as I know it was stopped”).
A: I have - wasn't - to my brain, it was not moving at all to me.”[81]
[81] T122, L24-28
118She denied that, when the other passenger was able to force the door open the train was already starting to move off, instead, insisting that the train was stationary.[82] Playing CCTV footage taken from the station, Mr Harrison took Mrs Cassidy through the sequence:
Q: “It’s stationary. It’s moving, then out you come?---
A: Well, it was in those split-seconds is when he’s taken off to Werribee, so he’s not - he’s not - he’s not a safe train driver.”[83]
[82] T94 ꟷ T95
[83] T95, L21-24
Mrs Cassidy maintained her answer that “to [her] knowledge the train was stationed all that time”.[84]
[84] T96, L18-20
119Mrs Cassidy also gave evidence that she was in a state of distress due to the possibility of missing her stop late at night.
120Asked why she did not get off at the next stop and take the next train back to Altona Station instead of forcing the doors open, Mrs Cassidy responded that since her home was in the vicinity of Altona Station, waiting at the next station and taking the train back to Altona “[w]ouldn’t have been in my mindset”.[85] The next station was Westona, and she did not like Westona at that time of night.[86] She “just assumed that the train doors was (sic) still going to open”.[87]
[85] T120, L5-12
[86] T117, L17-28
[87] T118, L4-5
121The circumstances of the urgency of the attempts to open the doors over a period of only about fifteen seconds or so is depicted in the CCTV footage taken from inside the train. This footage appears to show that the train was not in motion when the doors were forced open initially; and the very short period of time the train had been moving when she disembarked.
122Mrs Cassidy, then aged sixty-two years, presented in the footage as an elderly lady who was quite flustered in her attempts to disembark from a train late at night. I have no doubt that she was focused on disembarking in somewhat of an emergency situation, at the very least occasioning her inconvenience if she was unable to disembark at her station.
123I accept, on the balance of probabilities, that she was not aware the train was moving at the time she commenced to disembark. I also accept that a reasonable person placed in these circumstances may not have realised that the train was moving at the time she stepped off the train.
Principles
124Mrs Cassidy is guilty of contributory negligence if Metro Trains can show that she failed to take reasonable care for her own safety, and this failure to take reasonable care results, in part, to her injury.[88] Like negligence, the test is an objective one,[89] disregarding any idiosyncrasies of Mrs Cassidy in question. The surrounding factual context must be considered in determining what is reasonable in the circumstances.
[88] Hooper v Workforce Recruitment and Labour Services Pty Ltd [2022] VSC 239, [147]
[89]Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) 214 CLR 552, [32] (per McHugh J)
125Metro Trains bears the burden of proving that Mrs Cassidy has been guilty of contributory negligence.[90]
[90] Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
126Courts have long considered cases where plaintiffs, placed in situations of emergency, take risks to preserve themselves. In Caterson v Commissioner for Railways (NSW),[91] in finding that a man jumping off a train was not negligent, Gibbs J, explained:
“cases where a plaintiff, placed in a situation of danger or inconvenience, takes a risk to escape this danger or inconvenience, the question is whether the danger or inconvenience in taking the action outweighs the danger or inconvenience she will be subjected to by the defendant.”[92]
[91] [1973] 128 CLR 99
[92] [Ibid] at 103
127The distinction between contributory negligence and mere inadvertence, inattention or misjudgement has been repeatedly emphasised by the courts, particularly in the context of employment injuries.[93]
[93]See Czatyrko v Edith Cowan University (2005) 214 ALR 349; and see Mayhew v Lewington’s Transport Pty Ltd (supra), [29]
Findings
128In determining the question of whether Mrs Cassidy, in forcing open the doors of the train and disembarking, failed to take reasonable care for her own safety, the following factors are relevant:
(a) it was late at night;
(b) she did not know that the train was moving, but ought to have known that it would start moving shortly;
(c) if she remained on the train, the next station was Westona;
(d) Westona Station was still walking distance from Mrs Cassidy’s house;
(e) Mrs Cassidy considered the walk home from Westona Station more dangerous than the shorter walk from Altona Station;[94]
(f) she wanted to buy groceries from the Coles near Altona Station, and would not have been able to if she disembarked at Westona;[95] and
(g) another passenger assisted her to open the doors just prior to the train departing;
(h) as she disembarked, her evidence was, “I just wanted to get off the train and go home; I wasn't really concentrating 100 per cent on the platform”.[96]
[94] T117, L20-28
[95] T117, L25-27
[96] T117, L5-7
129Due to the time of night, Mrs Cassidy was anxious to get home. Her desire to walk home from Altona Station, which was a safer, more familiar and convenient route when compared to the walk from Westona, is understandable. In the circumstances, I find that Mrs Cassidy did what any reasonable person would instinctively have done to avoid the inconvenience of being carried to a train station that was, in their mind, less safe, less convenient, and less familiar.
130Metro Trains alleged that Mrs Cassidy ought to have pressed the emergency button on the train, or otherwise advised the train driver of her difficulty in opening the door. In support of this submission, Metro Trains led evidence that, if the emergency button is pressed, the driver is alerted by the CCTV screen in the driver’s cabin, which displays the relevant carriage from which the duress button was pressed.[97] There was no further evidence as to the procedure that occurs once the duress button is pressed.
[97] T243, L16-21
131On the state of the evidence, I cannot conclude that the risk to Mrs Cassidy would have been ameliorated if she had pressed the duress button instead of attempting to force the doors open. In any event, I find her conduct was reasonable in the circumstances in which Metro Trains had placed her.
132In my view, however, Mrs Cassidy should have foreseen that opening the door and disembarking as the train was about to leave or leaving the station, was exposing herself to a risk of injury. Objectively, she acted in a manner which contributed to her own injuries; but her action in disembarking did not show a considerable disregard for her own safety, because she was unaware the train was in motion.
133In the balancing exercise which I must undertake, it is relevant to consider that, by September 2011, Metro Trains knew it had a safety problem with its doors, failed to address it for the best part of three years, and the driver did not press the door “release” button for an adequate time, thereby creating an “emergency” situation. On any account, Metro Trains’ negligence far outweighs hers.
134In all of the circumstances, when the actions of Mrs Cassidy are balanced against the negligence of Metro Trains, I find that an appropriate figure for contributory negligence is 10 per cent.
Damages
135Mrs Cassidy fell heavily onto the platform on Altona Station, and lay on the ground for quite some time before an ambulance arrived. It is not in dispute that she suffered a right comminuted intertrochanteric fractured neck of her femur.[98]
[98] Exhibit 14 ꟷ Report of Professor Ian Brand, dated 28 March 2015, PCB 418
136She was taken to Footscray Hospital where she was admitted for inpatient care, and underwent an operation on her right hip by surgeon Mr Ishfaq Hussaini to insert an intramedullary nail on 28 June 2014.[99] At the time of her discharge on 2 July 2014, Western Health recorded that Mrs Cassidy’s mobility had significantly decreased compared to her premorbid level of function, and that she will require inpatient rehabilitation.[100]
[99] T83, L7-22
[100] Exhibit 21 ꟷ Discharge Summary, PCB 406
137Mrs Cassidy was transferred to Williamstown Hospital for rehabilitation and physiotherapy, before undergoing further surgery on 25 July 2014 at Footscray Hospital, involving a right hip novel excision and debridement and washout, conducted by Mr Sasha Roshan-Zamir, to treat a post-operative staphylococcus aureus infection in her wound from the previous surgery.
138On or about 31 July 2014, Mrs Cassidy was admitted a second time to Williamstown Hospital for further rehabilitation. Overall, she was in hospital from 26 June 2014 until 22 August 2014.[101] She was on antibiotics for her entire hospital stay, including to treat her staphylococcus aureus infection through a hand drip “every couple of hours”,[102] and for a period of six months after her discharge from Hospital.[103]
[101] Exhibit 21 – Western Health discharge summaries.
[102] T85, L24
[103] Exhibit 21 ꟷ Report of Dr Adrian Tramontana, dated 16 February 2015, PCB 423
139After hospital, Mrs Cassidy stayed with her daughter, Ms Coral Gavrilidis, for six months. During this time, Coral assisted her by taking her to her doctor and physiotherapy appointments, and shopping. [104] Mrs Cassidy then returned to living by herself in her home in Altona.
[104] T86, L17-27
140Mrs Cassidy, now living alone at home, has ongoing pain in her right hip, particularly in the cold, which sometimes wakes her at night. She has difficulty with her hip going to the toilet,[105] bending and walking. Her legs swell, and her right hip is weaker than it used to be. It is difficult for her to use a vacuum cleaner and mop. She requires the aid of grabbers to pick up things from the floor.[106] When walking, she particularly has trouble taking wide steps.[107]
[105] T87, L3-9
[106] T87-88
[107] T87, L14-15
141As a consequence of her injury, she requires use of a shower stool and handheld shower head to decrease her risk of falling; an over-toilet frame to assist with toilet transfers; modified home seating; a bed stick to assist her to get into and out of bed; a two-wheel kitchen trolley to allow her to prepare meals and carry them from the kitchen to the dining table[108] and a bath-transfer grab rail.
[108] Exhibit 21 ꟷ Report of Western Health occupational therapist, Louise Tuteru, undated, PCB 409
142Prior to the incident, Mrs Cassidy did a lot of walking, regularly walking from her home along the beach, and to her local grocery and other places. After the incident, she is no longer able to do this as often. She sometimes needs assistance with shopping, but Mrs Cassidy was at pains to point out that this is not often, since she tries “to stay independent as much as [she] can”.[109]
[109] T89, L26
143Mrs Cassidy does not use the train anymore and is “very confined”.[110] She has only taken the train three times since the incident. During the times that she has taken the train, she was accompanied; and she is fearful of trains crossing the pedestrian path at a level crossing.[111]
[110] T89 ꟷ T90
[111] T90, L24-29
144When asked whether she thought of the incident at all, she responded:
“Yes, every day; I don’t forget it. That’s a - I wouldn’t want it to happen to anybody else, it’s very - it’s horrific, I wouldn’t want it to happen to anybody else ‘cos, um, if you realise you’re falling and you think you’re gonna die because I thought I was gonna bash me head in, and then I broke me hip instead, but it’s a very terrifying moment, it’s very horrific, it’s horrible. It’s something I never want to experience again, it’s horrible.”[112]
[112] T90, L30 – T91, L8
145In the context of a history of treatment for postnatal depression many years ago after she had her daughter, Shenae,[113] Mrs Cassidy has developed a phobic anxiety with avoidance behaviour in relation to trains following the incident.[114]
[113] T125, L18-23
[114] Exhibit 13 ꟷ Report of Dr Lester Walton, dated 24 March 2022, PCB 387
146Mrs Cassidy also temporarily aggravated a pre-existing right shoulder rotator cuff condition in the incident, which has now returned to its pre-incident baseline function.[115]
[115] Exhibit 12 ꟷ Report of Dr David Slattery, dated 19 March 2022, PCB 379
147Ms Gavrilidis is one of Mrs Cassidy’s four daughters. Prior to the incident, Ms Gavrilidis would take her mother to church lunches weekly, and then to the op shop afterwards. They would also go out for walks on the beach; and Mrs Cassidy would also take her grandchildren to the park and on other outings, such as on the train, going to Luna Park or the city.
148Ms Gavrilidis said her mother was a “normal mum, normal grandma”,[116] a “very involved mum”,[117] able to attend family events; and an active grandmother who played and walked with her grandchildren.
[116] T133, L4
[117] T133, L9
149The family would always use public transport, mainly the train. She has never seen her mother drive a car. She confirmed that she and her siblings are spread out across different parts of Melbourne and that, prior to the accident, her mother would take public transport to visit them. Ms Gavrilidis, herself, would spend time with her mother at least once a week.
150In the year leading up to the accident, Ms Gavrilidis did not observe her mother struggling with walking. She says that Mrs Cassidy kept a normal home and she would always be cooking when Ms Gavrilidis visited. Mrs Cassidy would share recipes with her and they had “normal mum and daughter conversations”.[118]
[118] T135, L22-23
151After the incident, her mother was in hospital for about three months and then stayed with her for six months. She described Mrs Cassidy as being “very quiet, very withdrawn ... very scared”[119] after the incident.
[119] T136, L6-8
152During Mrs Cassidy’s six-month stay with her post-accident, Ms Gavrilidis arranged for equipment to be set up in her home to assist Mrs Cassidy: a commode was put over the toilet, there was a special chair for Mrs Cassidy in the kitchen, and Mrs Cassidy needed a walking frame. Ms Gavrilidis had to help her mother get out of bed and help her into the shower. She stated that Mrs Cassidy would mainly sit in her chair in the kitchen, and she would take her mother to her appointments.
153She observed that it took Mrs Cassidy a while to gain confidence to walk again. She described Mrs Cassidy’s staphylococcus auereus infection including “yellow stuff, like, yellow liquid” weeping from the wound site.[120] A skin specialist had to change the dressing. From time to time, if it started weeping and leaking, they would have to change the covering themselves. She also observed that, after a few years, Mrs Cassidy developed ulcers on her legs which leaked the same sort of yellow liquid. This made Mrs Cassidy very paranoid that other people would catch the infection, which led her to take measures, such as not letting anybody walk in her house without shoes on.
[120] T137, L12-16
154Although Mrs Cassidy is still able to walk, she struggles, is short of breath and cannot move her right leg properly.
155She confirmed that Mrs Cassidy no longer goes on outings, or attends family occasions, and has become very secluded.[121] She stated:
“... There’s no point in bringing her there because, when she gets there, she’s just complaining and wants to go back home again and doesn’t wanna be there, um, and all she does is talk about the accident. It’s on her mind all the time.”[122]
[121] T139, L5-6
[122] T138, L18-22
156She also confirmed that Mrs Cassidy no longer visits her siblings, since she is now unable to take the train to visit them.[123]
[123] T139 ꟷ T140
157Prior to the incident, Ms Gavrilidis did not have to care for her mother, and described her as being “very independent. very confident lady”.[124] She gave the following account as to the effect of her injury:
“Well, what I've seen is, she's a completely different person; completely, um, different person. She's very, um, snappy now, very, um, not being - wanting to be bothered with people. And I said 'very secluse' (sic), she doesn't want to associate with anybody. She's very embarrassed, like, she's - even when we go shopping she sort of - she doesn't wanna make eye contact, she keeps to herself. Um, we're nearly always tripping over things, like, when she's walking around we're nearly always tripping over things. … .”[125]
[124] T138, L7-8
[125] T141, L10-20
158From her perspective, the incident has “ruined her life, it really has”.[126]
[126] T140, L22-23
159Ms Gavrilidis was cross-examined briefly. In terms of her mother’s history of hypertension and anxiety, Ms Gavrilidis explained that her father was abusive towards Mrs Cassidy when she was growing up. She was aware that, during that period, Mrs Cassidy dealt with hypertension and anxiety but she “got over it”.[127]
[127] T142, L14-15
160Mr Harrison made only very brief submissions as to general damages, to the effect that Mrs Cassidy is not having any ongoing treatment, but conceded that it was a nasty fall, and a nasty injury with some residual consequences. In his submission, an appropriate figure for damages for non-economic loss is $120,000.
161In turn, Mr Brett submitted that an amount of $250,000 fairly reflects Mrs Cassidy’s past and future pain and suffering and loss of enjoyment of life.
162Nine years ago, Mrs Cassidy suffered a serious fracture to her femur requiring internal fixation and two months in hospital. Her wound became infected, requiring further surgery, and she suffers ongoing swelling of her legs. She has been left with a very significant ongoing impairment, in the context of previously being an active and engaged grandparent, with a full life.
163I assess Mrs Cassidy’s general damages in the sum of $250,000.
Conclusion
164Mrs Cassidy has succeeded in her claim, and accordingly judgment should be entered for Mrs Cassidy against Metro Trains in the sum of $225,000 being general damages in the sum of $250,000 reduced by 10 per cent for contributory negligence under s26 of the Wrongs Act.
165I will hear the parties as to the form of final orders, including costs.
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