Chol v Sydney Trains (No 2)

Supreme Court

New South Wales

Medium Neutral Citation:

Chol v Sydney Trains (No 2) [2022] NSWSC 1267

Hearing dates:

27 June 2022

Date of orders:

27 June 2022

Decision date:

27 June 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The specified evidence set out in the notice to adduce tendency evidence dated 27 May 2022 is admissible.

Catchwords:

EVIDENCE — Tendency evidence — Intoxication — Significant probative value

Legislation Cited:

Australian Consumer Law

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Cases Cited:

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Category:

Procedural rulings

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

REVISED EX TEMPORE Judgment

1. The plaintiff sues the defendant for damages in respect of injuries she sustained as the result of an accident, which happened at Auburn Railway Station on 4 August 2016.

2. On that day, the plaintiff sought to enter a train as the doors were closing. Her handbag became caught in the doors of the train and she subsequently fell between the train and the platform. During cross‑examination of the plaintiff, counsel for the defendant, Mr O’Dowd, sought to ask questions of the plaintiff concerning earlier events in which she was found to be intoxicated, particularly on railway stations. Mr Catsanos of senior counsel, who appears with Mr Roulstone for the plaintiff, objected.

3. The defendant accepts that the evidence would ordinarily be inadmissible, having regard to s 97 of the Evidence Act 1995 (NSW), but seeks to rely on s 97(1)(a) and (b) on the basis that the defendant gave reasonable notice to the plaintiff in writing of the defendant’s intention to adduce the evidence; and that the evidence will, either by itself or having regard to other evidence which the defendant seeks to adduce, have significant probative value. The plaintiff opposes the admission of such evidence.

4. On 27 May 2022, the defendant served a tendency notice. The conduct or tendency specified in the notice was as follows:

“(i) As at the date of her accident, the Plaintiff had an alcohol abuse disorder; or in the alternative was prone to ingesting excessive amounts of alcohol such that she became heavily intoxicated.

(ii) That the plaintiff’s ingestion of excessive amounts of alcohol (which included a mixture of bourbon with coke) occurred when the Plaintiff was outside her home and in public places, including whilst using public transport including buses and on train stations.

(iii) That her level of intoxication during and after ingesting excessive amounts of alcohol was high, on one occasion at a level of EtoH 63.0mmol/L, 29%, and included her demonstrating behaviours such as refusal to cooperate with paramedics called to assist her, yelling out and crying, aggressive behaviour, lack of co-ordination causing her to fall…