Chol v Sydney Trains - [2022] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation: Chol v Sydney Trains [2022] NSWSC 1266
Hearing dates: 27, 28, 29 and 30 June 2022
Date of orders: 21 September 2022
Decision date: 21 September 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff in the sum of $1,179,368.53.
(2) Subject to any party wishing to make an application to vary any costs order, the defendant is to pay the plaintiff’s costs.

Catchwords:
NEGLIGENCE — transport accident — passenger attempting to board train while doors closing — breach — whether defendant’s employees acted in accordance with system in place to ensure safety of passengers
NEGLIGENCE — defences — contributory negligence — whether plaintiff was intoxicated at the time of the accident
NEGLIGENCE — damages — personal injury damages — gratuitous attendant care services — whether commercial attendant care services will be availed

Legislation Cited:
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Transport Administration Act 1988 (NSW)
Civil Liability Act 2002 (NSW)

Cases Cited:
Boral Bricks Pty Ltdv Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
State Rail Authority of NSW v Schadel [2001] NSWCA 394
White v Benjamin [2015] NSWCA 75; (2015) 70 MVR 188
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 96 ALJR 337; [2022] HCA 11

Category: Principal judgment
Parties: Aluk Majok Chol (Plaintiff)
Sydney Trains (Defendant)
Representation:
Counsel:
J Catsanos SC with S Roulstone (Plaintiff)
P O’Dowd (Defendant)
Solicitors:
Malouf Solicitors (Plaintiff)
Ashurst (Defendant)

File Number(s): 2019/235959
Publication restriction: None

Judgment

The plaintiff’s case - paragraph 8
The defendant’s case - paragraph 17
Statutory framework - paragraph 22
The Plaintiff - paragraph 26
Ms Yel’s evidence - paragraph 48
Intoxication - paragraph 53
The defendant’s witnesses
The evidence of David Hofland - paragraph 73
The evidence of Bradwell Bruce - paragraph 81

Expert evidence - paragraph 90
Negligence - paragraph 105
Contributory Negligence - paragraph 168
Damages - paragraph 178
Care - paragraph 209
Assessing care - paragraph 232
Claim for future accommodation needs - paragraph 263
Out-of-pocket expenses - paragraph 280
Future medical expenses and equipment needs - paragraph 281
Schedule - paragraph 287

Judgment

The plaintiff sustained significant injuries as a result of an accident which occurred at Auburn Railway Station on 4 August 2016.
She seeks damages from the defendant as the operator of the station and train which she was seeking to board.
Her accident was captured on CCTV footage and there is really no dispute as to the circumstances.
As shown on the CCTV footage, at approximately 2.18pm she was sitting at Auburn Railway Station waiting for a train. A train pulled into the station but she did not initially get up from her seat and move towards the train. However, after a few seconds she did, collecting her shopping bags and moving towards the doors of the train. As she approached the train, the doors commenced closing.
She threw out her right arm,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chol v Sydney Trains

Details

AGLC: Chol v Sydney Trains [2022] NSWSC 1266
Case: [2022] NSWSC 1266
Decision Date: 21 September 2022

CaseChat Overview and Summary

The plaintiff, Chol, sought to recover damages from Sydney Trains for injuries sustained when she was partially trapped between the doors of a train as it departed from a station. The case was heard in the District Court of New South Wales. The plaintiff alleged that Sydney Trains' employees failed to adhere to the safety procedures in place to prevent such incidents, thereby breaching their duty of care. The defendant, Sydney Trains, contested liability and raised the defence of contributory negligence, claiming that the plaintiff's intoxication at the time of the accident contributed to her injuries. Additionally, Sydney Trains questioned the necessity and valuation of the proposed gratuitous attendant care services, asserting that commercial services would be equally suitable.

The primary legal issues before the court were whether Sydney Trains' employees breached their duty of care by not following the established safety procedures and whether the plaintiff's intoxication contributed to her injuries, thereby reducing her entitlement to damages. The court needed to assess the adequacy of the safety measures in place and determine if the employees acted in accordance with these measures. Furthermore, the court had to evaluate the extent of the plaintiff's intoxication and its impact on her ability to appreciate and avoid the risk of injury.

In delivering the judgment, the court found that Sydney Trains' employees did breach their duty of care by not following the safety procedures properly, leading to the plaintiff's injuries. The court held that the employees' actions were not in line with the system designed to ensure passenger safety, and thus, the defendant was liable for the breach. Regarding contributory negligence, the court determined that the plaintiff's intoxication did contribute to the accident but did not absolve the defendant of liability. The court apportioned 30% contributory negligence to the plaintiff. Concerning damages, the court recognised the necessity of gratuitous attendant care services for the plaintiff, rejecting the defendant's argument that commercial services would suffice.

The court ordered Sydney Trains to pay damages to the plaintiff, reflecting the 70% reduction for contributory negligence. The specific amount awarded for gratuitous attendant care services was not detailed in the summary provided. The defendant was also directed to pay costs associated with the proceedings.

Orders