Chol v Sydney Trains

Supreme Court of NSW|2022-06-30|Before: Cavanagh J

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.

The plaintiff's case

Prior to the commencement of the hearing the plaintiff pursued causes of action in negligence, contract and under the Australian Consumer Law (ACL). On the second day of the hearing the plaintiff withdrew her claims in contract and under the ACL. I granted leave to file an amended statement of claim which was filed in Court on 29 June 2022.
The plaintiff thus pursues the defendant only in negligence.
As set out in the amended statement of claim, the plaintiff alleges that the defendant as the operator of the train was negligent in a number of respects, including inadequacies in the system in place at the station at the time of the accident and failures on the part of the defendant's staff, in particular, the guard on the train, to take the necessary steps to ensure that the train did not move whilst the plaintiff was in a position of danger.
Having said that, by the end of the evidence, the plaintiff's case was limited more to allegations of casual acts of negligence on the part of the employees of the defendant rather than any deficiencies in the system which the defendant had in place.
It is the plaintiff's case that employees of the defendant saw the plaintiff coming towards the doors and saw her standing directly adjacent to the edge of the platform, perhaps in contact with the train in some way.
Despite this, they allowed the train to commence to move instead of taking steps to ensure that it did not move or ensure that she was away from the train before it commenced to move. Whilst the plaintiff accepts that there must be some reduction on account of contributory negligence, the plaintiff submits that there was ample time for the defendant's employees to observe the plaintiff in her precarious position and that they failed to take reasonable steps to ensure that she was not injured, that is, they allowed the train to commence to move despite her position.
The plaintiff says that she sustained injuries which must be described as catastrophic. She says that, at the age of 46, she was rendered so disabled that she needs extensive treatment and care for the rest of her life.
The plaintiff makes no claim for economic loss as, I assume, although she was only middle-aged, the plaintiff had not worked since coming to Australia from South Sudan, had some other health problems, very little ability to speak or read English and a pre-existing fragile psychological state.
The major components of the plaintiff's claim are thus non-economic loss and care.

The defendant's case

The defendant says that the plaintiff was the author of her own misfortune. The defendant asserts that the plaintiff was intoxicated at the time and that she fell between the platform and the train because she was unable to properly balance. The defendant asserts that the plaintiff placed herself in a position of danger by attempting to stop the doors from closing.
Whilst the defendant does not dispute what is shown on the CCTV footage, the defendant submits that the plaintiff would not have fallen if she had not been intoxicated.
The defendant submits that it was not negligent. It says that its employees acted in accordance with the accepted system and that they did not fail to take care in allowing the train to move after the plaintiff's handbag had become caught in the train.
Further, the defendant submits that, even if it failed to take care, damages should be reduced substantially, or even totally, on account of her contributory negligence.
Although the defendant does not really dispute the nature and extent of the injuries sustained in the accident, it says that the plaintiff suffered from a number of pre-existing health problems for which she would have needed extensive care in any event. Further, the defendant submits that it was likely that the plaintiff would have continued to live with her children and/or brother irrespective of the accident and that they would have all been sharing the household duties, such that any claim for care should be heavily discounted.

Statutory framework

The relevant statutory framework is: 1. The plaintiff's accident was a public transport accident within the meaning of s 121(3) Transport Administration Act 1988 (NSW) (TAA). 2. Pursuant to s 121(1) TAA, Chapter 5 (ss 122-146) of the Motor Accidents Compensation Act 1999 (NSW) (MACA) applies to the award of damages. 3. Having regard to s 3B(2) of the Civil Liability Act 2002 (NSW) (CLA), only certain provisions of the CLA apply. That is, the CLA does not apply except for the provisions set out in s 3B(2). As set out in s 3B(2), those provisions include: (a) Divisions 1-4 and 8 of Part 1A (Negligence) (thus including s 5B and related sections); and (f) Section 49 (Effect of intoxication on duty and standard of care).
It is not necessary that I say more about the inter-relationship between the legislation and a claim such as this. It was explained and reviewed in Boral Bricks Pty Ltd v Cosmidis (No 2) ("Boral Bricks"). [1]
The defendant accepts that s 50 of the CLA (No recovery where person intoxicated) does not apply.
All that needs to be said for the purposes of this judgment is that this is a negligence action which is governed by Part 1A of the CLA. In other words, the questions of primary negligence and contributory negligence must be assessed in accordance with the provisions of the CLA, although, s 138 of the MACA and s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) also apply, should there be a finding of both negligence and contributory negligence.

The Plaintiff

The plaintiff relies on two evidentiary statements, although it is clear from cross-examination that she relied on her lawyers to obtain her instructions to confirm the content of the statements. Her native language is Dinka, being the language of the Dinka people in South Sudan. As far as I can determine, she speaks very little English and does not read English. I do not know whether she is literate in her own language.
Her life has been one of significant trauma.
The plaintiff was born in South Sudan and moved to Kenya in 1992. She married in South Sudan at the age of 14. She has had three children. She moved from South Sudan to Kenya in order to avoid the civil war. Her husband died at a young age while fighting in the civil war in South Sudan. She obtained some work in Kenya in a brewing business.
During the period 2002 to 2006, she undertook the process of obtaining refugee status in Australia. She arrived in Australia in 2006 with her three young children. She entered on a refugee visa. She has not worked since coming to Australia. She initially received the Newstart Allowance. She says that as she has not worked in Australia she has not been able to learn the English language. She thus does not speak or read any English and believes that this was a barrier to her obtaining work.
In her statement, she says that prior to the accident she had been in good physical and mental health, albeit she had suffered from long-term diabetes and blood pressure issues. It is clear that she also suffered from a significant knee problem and some psychological issues.
She admits that she did drink alcohol from time to time, although there is a significant dispute as to the extent of her alcohol consumption prior to her accident. It may be that in her statement she minimised the extent of her issues with alcohol, particularly as they were exacerbated following the suicide of her 23-year-old daughter in 2013. I will come to this issue later in this judgment.
Prior to her accident, she had thus been living in Australia for a period of 10 years. Various relatives seem to have lived with her at different stages in the years prior to the accident. Her two daughters alternated using a mattress and a couch for beds whilst they were at school.
As is evident from both the evidence of the plaintiff and her daughter, Amou Deng Yel, the death of the plaintiff's oldest child in 2013 was a very traumatic event and affected the plaintiff significantly, particularly in terms of her mental health and consumption of alcohol.
The plaintiff admits that she did turn to alcohol on occasion as some form of solace. However, she says that, subsequent to the accident, she has not continued that habit, saying she has not drunk at all.
It is clear from the evidence of the plaintiff and her daughter that the plaintiff's primary role was to look after the family and any other persons who were living at the premises. She undertook all the domestic duties and cared for herself. No doubt her diabetes and knee problems and related health issues impacted upon her daily life but, there is no evidence that they prevented her from caring for herself, her family or her home.
Prior to the accident, she lived with her daughter, son and brother in a three-bedroom (two-storey) townhouse at Guildford. Some time after the accident, they moved to a ground-floor townhouse at Pendle Hill, followed by a four-bedroom house in Guildford. The plaintiff currently resides in a one-storey, four-bedroom house in Winston Hills, again sharing with the same people. She says that the current accommodation is more suitable for her. She says that she does not intend to continue to live with her daughter and son, although she accepted in cross-examination that she may live with her son at some point in the future. She wants them to return to their education and obtain employment and become independent. She says she would like to find a way to care for herself which would involve paying for carers. She says that she would need assistance with accommodation.
Some of the treatment she was having after the accident was curtailed due to Covid-19. She said she would like to return to that form of treatment, including physiotherapy.
In cross-examination, she acknowledged that she relied on her children and brother and that culturally (as put to her), it may be that that type of family unit would remain living together on a long-term basis. However, as I have said, it was also her evidence that she would like her children to become independent and lead their own lives.
She presented as a quiet, softly spoken and reserved person. She was in obvious pain. Indeed, she used a walking frame to enter and leave the Courtroom. It took her some time to move around the Courtroom. She moved very slowly when moving from the frame to the seat in the witness box. She needed assistance from other people to do so. Whilst she was giving evidence, she stood up for a period, although standing up involved leaning forward and placing weight on her hands on the desk.
She readily admitted that prior to the accident she suffered from diabetes and had problems with her right knee. She also suffered from psychological issues. Of course, knee problems can generally be operatively cured and diabetes may be well-managed. Having said that, she has been forced to postpone knee surgery because of her other health problems.
She was cross-examined on the different versions she has provided as to the circumstances of the accident. She said in her statement that her body had been caught in the train doors. It had not been. It is unsurprising that, after suffering from such a traumatic accident, she may have been uncertain as to the precise mechanics of what happened. The defendant says that her mistaken views were a reflection of her intoxicated state.
It is only necessary to say that the plaintiff presented as a decent and genuine person. As I have said, the challenges to her credibility were limited. I accept that she was doing her best to give evidence in a truthful way, of course, having regard to the difficult issues she faced, including just staying in the witness box for a lengthy period and the unfamiliarity of her surroundings and language.
In the end, it does not seem to me that this is a case which depends upon nuances in the plaintiff's evidence. The accident was caught on CCTV footage and the nature and extent of her injuries are hardly in dispute.
The defendant cross-examined the plaintiff on inconsistencies in her version of events, having regard to the CCTV footage. There is no doubt from the CCTV footage that no part of the plaintiff's body became caught in the doors, despite her statement to that effect.
Her recollection of events and her statement as to the precise circumstances of the accident must be viewed in the context that she was asked to provide her recollection subsequent to such a traumatic event. She did so without viewing the footage.
It was not put to the plaintiff that she was simply making up a story or deliberately providing false evidence. It was put to the plaintiff that this was another consequence of her intoxication.
The CCTV footage speaks for itself. I do not accept that the inaccuracies in the plaintiff's statement as to precisely what occurred are likely to be a reflection of her intoxication. It is hardly the only or even compelling inference.

Ms Yel's evidence

The plaintiff's daughter, Ms Amou Deng Yel, gave evidence. Her evidence was directed to the before and after picture. She was cross-examined on the plaintiff's alleged alcohol issues. She said that, prior to the accident, the plaintiff did have some problems with alcohol but she only used to drink approximately twice a week. She was taken to the incidents referred to in a tendency notice but she suggested that incidents like that did not happen often. The effect of her evidence on the plaintiff's prior alcohol problems was to acknowledge that the plaintiff had a problem but reject as overstatements the propositions put by the defendant.
Ms Yel provided two evidentiary statements in which she set out the care that she and others have provided to the plaintiff subsequent to the accident. In oral evidence, she estimated that she provided care of four to five hours per day. She was taken through this estimate in cross-examination to the effect that her estimate might have been excessive or more reflective of the combined needs of the family.
For example, it was suggested to her that it would only take a matter of seconds or minutes to assist with dressing or showering. She readily agreed with those suggestions but this does not present the whole picture. For example, anyone experienced in dressing a disabled person would know that it takes more than a minute or two to assist that person in dressing. There is a process that a disabled person must undertake to get ready to dress or undress and, in view of the pain from which the person is suffering, the precise tasks involved cannot be equated with a person without a disability dressing or undressing.
Ms Yel has been providing assistance to her mother almost on a full-time basis since the plaintiff came home from hospital. Whilst there is merit in the defendant's suggestions that some of the tasks she has performed, such as washing and cooking, might be shared responsibilities and tasks she might perform for the benefit of the whole household including herself, I do not consider that Ms Yel's estimate of the time she spends on a daily basis helping her mother is excessive, although I accept that some of that time would be undertaking tasks that she might be performing in any event.
I accept Ms Yel's evidence. To the extent that it was subject to challenge, it was only on the time taken to perform the tasks rather than whether she was performing the tasks.

Intoxication

The defendant asserts that the plaintiff was intoxicated at the time of the accident. By this, the defendant means that she had consumed such a significant quantity of alcohol that her balance was disturbed, which caused her to both do what she did in terms of reaching out whilst the doors were closing and lose her balance whilst she was trying to pull her handbag from the closed doors.
Despite the severity of the plaintiff's injuries and the extensive hospital treatment she received thereafter, there is no support in any hospital notes for the plaintiff being intoxicated.
However, the defendant points to a combination of circumstances which it submits should lead to a finding that she was intoxicated. The defendant relied on both tendency evidence and other factors as supporting that inference.
I permitted the defendant to rely on tendency evidence in accordance with a tendency notice served by the defendant. The tendency evidence related to the question of whether the plaintiff was intoxicated at the relevant time. [2]
I allowed the tendency evidence on the basis that the defendant would be adducing other evidence of the plaintiff's intoxication at the time, such that when coupled with that other evidence, the evidence of the defendant's tendency to become intoxicated at railway stations was of significant prohibitive value.
As it turns out, the other evidence on which the defendant sought to rely either did not materialise or was rejected by the plaintiff.
For example, as part of the factual matrix leading to the conclusion that she was intoxicated, the defendant suggested that she had been sitting at the station for 40 minutes consuming alcohol whilst another train going to her destination (Guildford) went by.
However, the plaintiff said that she thought that that train went to Penrith and she was waiting for the Liverpool train. Further, the defendant's suggestions that the public announcements would have informed her otherwise could hardly assist the defendant in circumstances where the plaintiff had a very limited understanding of English and would have been unlikely to understand announcements.
I do not accept that the fact that she had remained on the station for a significant period tends to suggest that she was intoxicated.
Next, it was suggested to the plaintiff that she was attempting to conceal the amount of bourbon she had consumed by mixing it with Coke. However, the plaintiff disagreed. She specifically said she had a sip at the taxi rank and another sip at the station. Generally, persons do not mix bourbon with Coke so as to disguise the bourbon. The more compelling inference might be that the person wanted to have a bourbon and Coke.
Viewed in isolation, the proposition put by the defendant was speculation. It was rejected by the plaintiff and there is no evidence to the contrary.
The next piece of evidence the defendant relied upon was that, as a matter of ergonomic science, the manner in which the plaintiff fell leads to the conclusion that she must have been intoxicated. The defendant did not adduce expert evidence to support this proposition but relied on cross-examination of the plaintiff's expert, Glen Smith. However, nothing said by Mr Smith tended to support the proposition advanced by the defendant.
It was put to the plaintiff that she fell between the platform and the train after pulling on her handbag because she was intoxicated, and was thus incapable of balancing herself. The plaintiff disagreed, saying that the handbag was heavy, meaning that it was difficult to pull the handbag from the door and this caused her to overbalance.
Again, the plaintiff rejected the proposition put by the defendant and absent contrary evidence (there is none), I accept the plaintiff's evidence.
The plaintiff admitted that she had consumed alcohol before the accident but maintained that she was not intoxicated. In particular, she stated that if she had been intoxicated, she would not have been able to bend down and pick up her bags before hurrying towards the train. The defendant challenged this as lacking credibility but I took the plaintiff's answer to indicate that she had a fair idea herself as to whether she might have been intoxicated.
The defendant also relied on tendency evidence, being evidence of five earlier occasions on which the plaintiff had either been taken to hospital then found by the Police or been found to be intoxicated at a railway station. These events occurred on the following dates: 1. 15 July 2011; 2. 11 November 2012; 3. 22 July 2014; 4. 14 October 2014; and 5. 21 October 2015.
The fact that the plaintiff may have been known to misuse alcohol and the fact that she had been found to have been intoxicated in a public place on earlier occasions does not, of itself, establish that the plaintiff was intoxicated on this occasion.
Except for the proposition that the asserted tendency should be considered in conjunction with other evidence of events on the day, the evidence of being intoxicated in public on earlier occasions could hardly be relied upon to establish intoxication at the time of the accident.
On my assessment of the evidence as a whole, including all of those other factors relied upon by the defendant, the defendant has failed to establish that the plaintiff was intoxicated. She says that she was not and I accept her evidence. The other factors relied upon by the defendant tended to fall away on closer examination and the tendency evidence did not, of itself, establish the asserted fact.
In any event, if the plaintiff was intoxicated, it merely provided an explanation for what occurred. The plaintiff accepts that she failed to take care for her own safety and, if the defendant is liable, the real issue is assessing relative culpability.

The evidence of David Hofland

Mr Hofland has been the customer service attendant (the CSA), at Auburn Railway Station for 36 years. He said that he only saw the plaintiff after the train had commenced moving.
He explained the white flag and red flag process. He said that when he believed that it was time to close the doors, he would raise the white flag and keep the flag up. He also held a red flag. He would immediately raise the red flag in circumstances in which he perceived that it was necessary for the train to stop or not to move.
Although he was shown the CCTV footage (which he had not seen previously), the defendant objected to him being asked any opinion about what was shown on the footage. He was thus asked to assume that which the plaintiff asserts occurred and asked questions about whether he would have raised the red flag.
He agreed that as the plaintiff was standing on the white line on the edge of the platform, she was in a position of extreme danger. A person who stands between the yellow line and the edge of the platform is in a position of danger, but he agreed that standing on the white line would be a position of extreme danger. He further agreed that he would have raised the flag if he had seen the plaintiff standing there and then raising her arm (in the way that the plaintiff contends she did).
He said: Q. The doors weren't completely closed, and you had a good view of it? A. Yes. Q. "I did not observe the female passenger until I saw her suddenly appear close to the door as the train was starting to move". A. That's correct. That's when I noticed. Yeah. Q. The first time you saw her was when the train started to move? A. That's right. Yes. Q. And she was in the danger zone? A. Yes. Q. If you'd seen her before the train started to move, you would have raised that red flag? A. I would have, but I didn't see her. Q. No, no. Are you saying you didn't see her? A. That's correct. Q. The first time you saw her was when the train started to move? A. That's right. Yeah.
Of course, in his evidentiary statement, he said that he did not raise the red flag until after the train was moving because he did not see the plaintiff until then.
The effect of cross-examination was to establish that, on the plaintiff's version of events and in accordance with the defendant's procedures manual, the plaintiff was in a position of extreme danger and, if Mr Hofland had seen her there, he would have immediately raised the red flag to either stop the train or prevent it from moving. He would not have given the signal for the train to move if he had seen her in that position.
It was not put to Mr Hofland that he should have seen the plaintiff before he did or that had he been paying proper attention, he would have seen the plaintiff. This was no doubt a reflection of the defendant's objections to a number of the plaintiff's questions which tended to call for a comment on the part of Mr Hofland as to what he could see in the CCTV footage.

The evidence of Bradwell Bruce

Mr Bruce was the train guard on the train at Auburn Railway Station when the plaintiff fell. He prepared a witness statement dated 28 July 2021. Prior to the making of his statement he had not viewed the CCTV footage. He expressed a wish not to view the CCTV of the plaintiff falling between the platform and the train.
In his statement, he identified the steps required before the train leaves: "The procedure for guards when trains are entering the stations includes: (a) If a train overshoots (or undershoots) its mark by enough to warrant intervention, the guard contacts the driver by intercom. First and second carriage doors can be locked off in the event that the train overshoots a platform so that passengers can alight using other carriages (with appropriate announcements). This function is only available for A and B sets of trains. (b) Once the train arrives, the guard will stand at his station leaning out (or may step onto the platform if the platform is sufficiently curved to warrant that step so that he can see up the side of the train. From his position in the carriage, he can see along the side of the train in a forward direction plus monitor the display screen for the camera which has 8 images; 1 for each carriage). When the train stops normally, there is no need to contact the driver over the intercom. (c) The guard watches the passengers get on and off the train. He looks towards the CSA (flagperson) who stands towards the middle of the length of the train. The train guard checks the guard indicator on the platform to see if the signals are clear before commencing the door closing procedure. The guard indicator is a blue light which tells him that the traffic signal is signifying that it is safe to depart. The driver obviously can see the signal directly. (d) The guard waits for a white flag from the CSA before he hits the button to issue the recorded "stand clear doors closing" warning announcement. (e) If the doors haven't closed within about 7 seconds of the first announcement, he needs to recycle the announcement before he can close the doors. (f) The guard will blow the whistle. (g) Then the guard will press the door close button. (h) The Right of Way is given by the CSA by raising the white flag. The CSA also has a Red flag which signifies STOP, or to open the doors. (i) The CSA is usually present at busy stations like Auburn and was present on this day. (j) Standing at his station, the guard can see down the entire length of the train. (k) Passengers regularly encroach into the area inside the yellow line. (l) Guards will wait for passengers to clear that yellow line area before signalling the train driver to depart. (m) Virtually, every day, passengers make a dash for the closing doors and step back once they realise that they are too late. Some hit the doors in apparent anger or frustration. (n) The train has a sensor that tells the guard (with a light being extinguished) that the doors are closed and locked plus there is an audible sound to indicate the closure of the doors. If something large enough to obstruct the doors is caught, the light will not go off. They are not like elevator doors, although people seem to think that they are when they try to jam them open when dashing for the train. (o) In order for the train to leave (by progressive steps): (I) The guard checks the platform and the screen. (II) The guard checks the blue guard indicator light. (III) The guard checks for the ROW flag if the CSA is present on the platform. (IV) The guard presses the doors closing warning button. (V) The guard blows the warning whistle. (VI) The guard presses the doors close button. (VII) The guard checks that the doors are closed and locked via the audio and visual indicators. (VIII) The guard checks that the platform is clear. (IX) The guard signals the driver to move by giving the driver the all clear bell signal."
At the time of preparing his statement, he provided a detailed description of what happened: "7. I recall that I was going through my normal procedures, as explained above, and had issued the door closing warning, I had then pressed the door close button. 8. When the doors were virtually closed, I saw from my position on the rear carriage, that a person suddenly appeared and appeared to bang on the train door with her hands. 9. This was not a particularly unusual occurrence. 10. By this time I had not yet permitted the train to move. 11. I was observing her directly and through my CCTV screen. I did not see that anything was caught between the doors. The doors open indicator light became extinguished and I had heard the audible sound which indicated that the doors were closed and locked. 12. I still didn't signal for the train to move until I saw her move backwards away from the train. At this point, the train started to move. 13. Then, all of a sudden, she disappeared. One second she was there, the next she was gone. 14. I immediately signalled for the train driver to emergency stop by giving him the emergency stop bell signal. I gave my driver this bell signal twice just to be sure and immediately opened the emergency brake pipe tap. 15. The train stopped very quickly. 16. I immediately contacted the driver by intercom to inform him, about what had happened. 17. I then left my compartment to see to the welfare of the passenger. 18. Emergency procedures were activated and the platform was isolated and train movements stopped. Emergency personnel attended and the passenger was taken to hospital."
Mr Bruce was cross-examined extensively. He was clearly concerned about any suggestion that he might have been at fault. He expressed his belief that the cross-examiner was twisting his words and being pedantic. He was quite openly of the view that there was really nothing that he or anyone on behalf of the defendant could have done about this accident. It was the sort of thing that happened on a regular basis, particularly at busy stations.
He expressed incredulity about some of the propositions, became argumentative and wished to debate the points rather than simply answering the questions. Mr Bruce presented as a person who entered the witness box with a particular attitude to the proceedings and his own attendance at Court.
I mention these matters not to inform any finding that he was giving false evidence or not telling the truth. It was just that his answers were approached from the perspective of someone who perceived that he was under attack.
Mr Bruce identified that the train had a fail-safe mechanism, such that it would not commence to move prior to the doors being closed. As such, he believed that if something was caught in the doors, the doors open light would not turn off. As, on this occasion, the doors open light did turn off, he was satisfied that the doors had been properly closed.
On the version of events presented in his statement, he did everything that was required of him in accordance with the defendant's policies and procedures, to which he was taken in cross-examination. He undertook all the necessary checks to ensure that the train was safe to move. He relied on his own observations; the fact that the doors open light had gone off; his contemporaneous viewing of the CCTV footage in the guard's compartment; his direct observations of the plaintiff; and the raising of the white flag by the CSA.
Having said that, as emerged during cross-examination, there are aspects of his evidence which the plaintiff says lead to liability on the part of the defendant: 1. Firstly, Mr Bruce was adamant that once the doors open light went off, it was not possible for anything to be caught in the door. He ultimately accepted that this could not be correct according to his version of events. That is, on his version, he checked the light to ensure that it was no longer on, meaning that there was nothing caught in the door. However, he also accepted that the train commenced moving (after he had pushed the button, which operated as a signal to the driver) whilst the strap of the plaintiff's handbag was caught in the door. Perhaps the mechanics of the electronic system are such that when only something thin is caught in the door, it would not be recognised. That may be the obvious explanation for the difference between Mr Bruce's belief and the fact that something was caught in the door when the train commenced moving. 2. The other aspect of concern is that Mr Bruce said in his written statement that he observed the plaintiff move away from the train before the train commenced to move. He was shown the CCTV footage, presumably by the defendant's legal representatives, before giving evidence. He accepted in evidence that the plaintiff had not moved away from the train before the train commenced to move. 3. I repeat para 12 of his statement as follows: "I still didn't signal for the train to move until I saw her move backwards away from the train. At this point, the train started to move." 1. What he said in his evidentiary statement thus could not be correct.

Expert evidence

Both the plaintiff and defendant relied on expert evidence.
The plaintiff relied on reports of Glen Smith, an ergonomist and occupational therapist, dated 23 June 2020, 8 June 2021 and 29 April 2022.
The defendant relied on reports of Barry Hedley, a civil engineer who has extensive experience in railway engineering safety management and railway operations. Mr Hedley prepared reports dated 29 November 2020, 13 August 2021 and 15 March 2022.
The experts met in a conclave and prepared a joint report dated 18 February 2022. The experts gave evidence concurrently.
In the end, despite the narrowing of the issues, I did not find their evidence of great assistance. As I will detail in this judgment, the outcome of this case depends upon a consideration of the facts and whether those facts demonstrate a failure on the part of the defendant to take care. That is a matter for me, not the experts. That might be trite to say but the circumstances of this accident hardly need explaining through expert evidence over and above evidence which was adduced from the defendant's witnesses, who, in any event, are clearly experts in the operation of the trains and the system in place.
It is also unclear what particular qualifications Mr Smith had which would bear upon the matters on which an expert could comment in a matter such as this. Plainly, he is an expert ergonomist but, in circumstances in which there is CCTV footage of that which occurred, I am not sure that the Court required any assistance in explaining what occurred.
Mr Hedley and Mr Smith were asked to offer their opinion on whether the guard and station attendant acted reasonably. It is again necessary to say that is surely a question for the Court. The opinion of an engineer or ergonomist that he or she believes or does not believe that the defendant acted reasonably in all the circumstances is inadmissible or, at least, should be given little weight.
Unsurprisingly, both experts tended to agree that there was a procedure in place and that the defendant's employees were required to comply with it.
However, it is still notable that both experts agreed on the following answer: "The experts agree that in the circumstances that the train guard was in line of sight with Ms Chol and could see that Ms Chol was in contact with the train. The train guard could have either delayed the departure of the train until Ms Chol moved further clear, or reopened the doors and reinitiated the alarm and door close signals."
In the end, Mr Hedley was more qualified than Mr Smith to comment on matters relating to the procedures and systems put in place by the defendant. Having said that, there was essential agreement between the experts in the joint report, subject to one or two matters.
Again, leaving aside the comments I have made about the need for expert evidence in a matter such as this and the appropriateness of the experts' comments on some of the topics, it is notable that the experts did agree that: 1. The guard and station staff were trained to conform with the procedures of Transport for NSW for door operation and safe alighting for passengers; and 2. In circumstances in which the train guard was in line of sight with the plaintiff and could see that the plaintiff was in contact with the train, the guard could have either delayed the departure of the train until the plaintiff moved further clear or reopened the doors and reinitiated the doors closed signals. Further, if the guard had taken the steps to reopen the doors or wait until the plaintiff moved clear, it would have likely prevented the accident.
However, the experts could not agree on whether the station staff had acted reasonably in the performance of their duties. Mr Hedley opined that the station staff had acted reasonably in accordance with their defined duties. Mr Smith thought that the CSA had done his job reasonably but that the guard signalled for the train to leave the platform when it was unsafe to do so.
It might be obvious from my summary of the joint report as to why I do not consider that the expert evidence was of great assistance. It is not for the experts (of either discipline) in a case such as this to offer an opinion on whether, for example: 1. The guard could have seen something; 2. The guard acted reasonably; or 3. The plaintiff's accident was reasonably foreseeable.
Expert opinion in a case such as this should be limited to the operation of the system which the defendant had put in place, any deficiencies in the system and any processes and procedures that the defendant might have put in place (assuming they have the relevant experience and expertise to comment on such matters).
It is up to the Court to determine whether the system put in place was reasonable in all the circumstances and whether there has been non-compliance with the system. After all, the central issue in this case is whether someone on behalf of the defendant should have recognised that the plaintiff was in a position of danger in sufficient time to do something about it, i.e. not cause the train to move or stop the train or open the doors.

Negligence

Liability must be determined in accordance with the CLA. As set out in s 5B(1), a person is not negligent in failing to take precautions against a risk of harm unless: 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and 2. the risk was not insignificant, and 3. in the circumstances, a reasonable person in the person's position would have taken those precautions.
Further, as set out in s 5B(2), in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider (amongst other things): 1. the probability that the harm would occur if care were not taken, 2. the likely seriousness of the harm, 3. the burden of taking precautions to avoid the risk of harm, and 4. the social utility of the activity that creates the risk of harm.
As recently observed in Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited ("Tapp"), [3] the proper assessment of the alleged breach of duty depends on the correct identification of the relevant risk of injury, because it is only then that an assessment can take place of what a reasonable response to that risk would be.
The focus is on the circumstances which establish the necessity for a reasonable person in the position of the defendant to take reasonable precautions in performance of the duty of care. The characterisation of the risk must include the general causal mechanism of the injury sustained which gave rise to the potential for the harm for which the plaintiff seeks damages. [4]
The plaintiff pleads the risk of harm in the amended statement of claim as being the risk of a passenger such as the plaintiff, who was taking reasonable care for her own safety, becoming trapped between the train doors while the train was moving and then falling into the void between the platform and the train and suffering injuries as a result.
The plaintiff identified the risk of harm more generally in her submissions as being the risk that a passenger may be caught in the closing doors of the train and could be injured if the train commences to move before that person is clear of the train.
I accept that that is an appropriate characterisation of the risk of harm. It is consistent with the approach in Tapp and identifies the true causal mechanism without necessarily being so specific as to identify the precise act which gave rise to the risk.
I am satisfied that such a risk of harm was reasonably foreseeable and not insignificant. Further, the factors identified in s 5B(2) all point towards the need to take care in ensuring the safety of the plaintiff.
All duties of care may be discharged through the exercise of reasonable care. The law of negligence is concerned with a failure to take care rather than the imposition of strict liability on a defendant. The defendant was not required to guarantee the plaintiff's safety.
This principle may be particularly apposite in a case like this. As emerged through the evidence and must be of common knowledge, persons using the Sydney Trains network will, from time to time, seek to rush towards trains as the doors are closing and squeeze between the closing doors.
I had the impression from the defendant's witnesses that that which the plaintiff was observed to do, that is, seemingly decide to catch the train at the last moment and move towards the doors as they were closing, is a rather regular occurrence. Indeed, it was suggested that the defendant could hardly delay or wait every time that occurred or stop the train every time someone is seen to be moving towards it in the hope of getting on.
That may be so but it is still necessary to assess each case on its own facts, particularly when it comes to assessing what each person responsible for ensuring the safety of passengers did or should have done at any particular point in the sequence of events.
As might be expected, the defendant had a system in place to ensure the safety of users of its train lines, albeit that system cannot guarantee the safety of all users.
The system the defendant had in place to ensure the safety of its passengers at the relevant time is explained in the statements of the defendant's witnesses. An Operator's Specific Procedures (OSP) manual sets out the procedures which must be followed.
There is nothing in Mr Hofland's evidence which tends to suggest that he was not complying with the system or failing to do that which he was required to do to ensure the safety of the passengers. Unfortunately the plaintiff was not in his vision at the time of the accident.
I have already referred to Mr Bruce's evidence as to the system and his asserted compliance with it.
Mr Bruce says that he was going through the standard procedures as he explained them in his statement. He issued the doors closing warning and pressed the doors close button. He saw from his position on the rear carriage that a person had suddenly appeared and was banging on the train door with her hands. Again, this was not a particularly unusual occurrence as far as he was concerned. He had not yet permitted the train to move. He says he was observing it directly and through the CCTV. That means he must have been both keeping an eye on the CCTV screens in his compartment and looking out through the doors down the train towards her. He says he could see the plaintiff.
After the doors open indicator light was extinguished, he heard the sound which indicated the doors were closed and locked. As I have already commented, he says he still did not signal for the train to move and did not do so until he saw the plaintiff move away from the train. He says that at this point, the train started to move.
Mr Bruce was surprised that the doors open light would have been extinguished if there was something caught in the doors, as the strap of the plaintiff's handbag plainly was. He seemed surprised that this could occur. It may be that the doors are not so finely tuned so as to detect the presence of a bag strap caught between them.
The defendant had in place a system which required both the CSA and the guard taking steps to ensure that the train is safe to move before making it move. This involves a system of flags and whistles and also automatic systems. The door closes automatically when the guard pushes the appropriate button. The train will not start or move until such time as the doors are closed and the doors open light is extinguished.
It follows that, in this case, the train could not have started to move until the doors had closed or at least closed with the strap stuck in the doors (which is what the CCTV shows happened).
The plaintiff (having moved towards the doors as they were closing and having thrown her arm out with her handbag) must not have let go of her handbag instantaneously. By that, I mean, the train started to move when the strap was caught in the doors and she still had a hold of her handbag. This all happened in a matter of seconds.
I am not suggesting that the plaintiff was running along the side of the track, holding onto her handbag. It appears that as soon as the train started to move, the plaintiff was in some way pulled over, leading to her falling between the train and the platform.
It is the defendant's case that the plaintiff fell because she was intoxicated and simply lost her balance. Plainly, she did lose her balance. I have already commented on the defendant's proposition that she was intoxicated. She may have been drinking but I am not satisfied that she was intoxicated as that term would be commonly understood.
I do not accept that she somehow just fell between the platform and the train, without that fall being in some way caused by the movement of the train. She fell because the train started to move whilst her handbag was caught in it, and whilst she was standing on the white line adjacent to the edge of the platform. She still had a hold of the handbag.
The defendant submits that both the CSA and the guard did everything required of them. They followed the system and took steps to ensure that the plaintiff was in a safe position prior to the train moving to the extent that they could.
The CSA's view of the plaintiff was obscured. Indeed, the plaintiff did not submit in the end that there was any negligence on the part of the CSA.
Whilst the plaintiff attempted to make something of the fact that the train could start while something was caught in the doors (such as a handbag strap) and that the guard should have been properly trained and instructed on this, there is no merit in that aspect of the plaintiff's case.
I am satisfied that the persons in charge of the train's movement were properly trained and instructed. I am further satisfied that there was a system in place intended to ensure the safety of rail customers within the confines of that which the defendant needed to do, being, getting the passengers on and off the trains and moving the trains in accordance with the timetable.
I agree that the defendant could hardly operate a system which required it to stop the train every time anyone was seen running across the platform towards the train. The defendant could not be required to stop its trains on request such as by a person trying to bang on the side of the train as it is taking off from the platform. It seems that this is a regular occurrence.
Compliance with the defendant's appropriate systems and procedures by those two employees responsible for causing the train to move on the day would be a compelling indicator that the defendant did not fail to take care, particularly in circumstances in which I am satisfied that the system and procedures in place were appropriate, having regard to the overall obligation of the defendant to ensure the safety of its passengers.
Section 5B(2) of the CLA requires an evaluative assessment of a number of matters. It is important not to impose a standard of care on the defendant that is impossible to achieve.
Having said that, there is no doubt the potential for injury is high, and that the potential for catastrophic injury and even death is also high. Further, having regard to the mechanised nature of the train and the adequacy of the system, the burden of taking precautions to prevent harm is not high. What is required in the circumstances of the operation of the train when leaving a platform is the taking of all reasonable steps necessary to ensure the safety of the passengers by those charged with the responsibility for doing so.
In a case such as this involving a transport accident, it may be difficult to determine where any fault lies. That is, was the plaintiff the author of her own misfortune or was there some aspect of the defendant's conduct that demonstrated a failure to take care?
In State Rail Authority of NSW v Schadel ("Schadel"), [5] the Court was required to consider an accident which occurred in somewhat similar circumstances. The plaintiff was a passenger on the train. He was extremely intoxicated (I have not made that finding in this matter). He and his companion got off the train and started to leave the platform. The station assistant gave the guard the signal for the train to depart, the guard signalled the driver and the train departed. However, in circumstances that were found to be unclear, the plaintiff came in contact with the last carriage of the train and fell onto the tracks and sustained injury.
All cases are different and the Court's finding in Schadel was made on different facts and circumstances to this case.
As the Court said, the decision was based on a conclusion on the particular facts. However, Giles JA observed (at [57]): "It does not mean that a railway authority has unbridled licence to send its trains on their way. A passenger still getting off or getting on the train, a child skylarking near the edge of the platform apparently heedless of the danger of a moving train, or an intoxicated person on the platform obviously unable to control himself and so in a position of danger, all these can be expected to preclude immediately sending the train on its way. There is a line between when a railway authority so conducts itself in sending a train on its way that the platform is as safe for the use of its passengers as reasonable skill and care can make it, and when it does not. The line can not be drawn in the abstract. It must be decided on the facts of each case whether the conduct falls on one side of the line or the other."
Those words are particularly apposite in this matter. The question is which side of the line the defendant's conduct falls in the circumstances of this matter.
The defendant's ultimate submission is as follows: "It is accepted by the Defendant that with the benefit of hindsight, that had the guard been able to see and in fact observed that the Plaintiff's bag strap was caught in the doors, rather than, as his evidence will demonstrate, that he signalled the driver after he perceived that the Plaintiff was moving away from the train, the accident might have been avoided. However, one cannot approach such question using hindsight. One must consider the question prospectively. In everyday train operations, especially during periods of high traffic and customer demand, the experience of passengers who rush to board trains and are thwarted by closed doors, even banging on doors in anger, is not a rare occurrence. It is a matter of common experience that people moving along platforms regularly invade the 'yellow space' beyond the yellow line, but trains are not signalled to urgently stop when such incidents occur, as there must be a level of confidence that passengers will act reasonably and not recklessly, and trains must be permitted to move. Naturally, this involves a question of degree, but it cannot be a case of waiting for everyone to be clear if the platform before a train is allowed to leave. In a perfect world, there would be no risks involved in riding trains, however, the obligations sought to be imposed by the Plaintiff amount to an impermissible counsel of perfection, and accordingly do not constitute reasonable steps to avoid a foreseeable risk of injury."
I am highlighting these paragraphs as, whilst there is merit in some of the defendant's observations, the defendant's case seems to have changed between when the evidence was presented and the closing submissions. It is submitted that the guard acted appropriately because he signalled the driver after he "perceived that the plaintiff was moving away from the train".
Mr Bruce said in his witness statement that he was observing the plaintiff directly and through the CCTV, that is, he could see her directly and on the monitors. He says he did not signal for the train to move until he saw her move backwards away from the train and only at this point did the train start to move. That would be consistent with the requirement in the OSP manual that he make sure that the doors are closed and that passengers are clear of the doors and not in danger of being struck.
Mr Bruce prepared his witness statement prior to seeing the CCTV footage of the accident. He viewed it just before giving evidence. He was asked in examination-in-chief: Q. Assuming that footage shows that the train started to move before she actually moved backwards, assuming that's what the footage shows-- A. Yeah. Q. --can you tell his Honour what if anything motivated you to regard it was appropriate to allow the train to proceed having regard to the plaintiff's presence on the platform. A. Well, there are many things we look at when - before we move the train and there's four of them basically that - you've got the indicator. If there is a person there to give you the flag, the flag's raised.
He was then asked about his observations of the plaintiff: Q. Now, in respect of your observations of the plaintiff when she was standing there, she was standing close to the train. Wasn't she? A. Yes. She was. Q. Was there anything about how she was standing, and where she was standing, other than inside the yellow area, that caused you any concern about her being in a position of danger? Focusing on what she was doing at the time, and what you saw, how she was standing. A. No. Because it happens every day that people stand across the yellow line. But this lady, when she came up, she banged, that's what I saw, her banging on the doors. And then when she realised the doors are not going to reopen, you cannot - start moving backwards because that - that's what people normally do. Q. Did she make any sort of signal to you, or any gesticulation that-- A. No, no, no, no. Q. --alerted you to anything being caught-- A. No. Q. --in the train? Had you been aware that any part of the plaintiff's, for example, handbag, or any part of the plaintiff's clothing, or any part of plaintiff's body, had been trapped by the door, what would you have done? A. I would reopen the doors. Q. Would you have let the train go? A. No. I'd be stupid to move a train if somebody's caught. Q. Yes. All right. And at any time, did you have any suspicion that the plaintiff had anything caught in the door? A. No. Definitely not. I - I didn't for a second think she had got something caught in those doors for the very factors that my door indicator light went off, and the beep sounded--
He was then asked about the yellow line: Q. Can we just talk about the yellow line. A. Yeah. Q. The yellow line, you can assume we've all seen it. We're about to see it again. A. I've seen the footage. I know now what that shows, but that is not what my perception was what happened on that day. Q. I understand what you say, but can we just - I'm not being rude to you, Mr Bruce, but we need to deal with my questions. A. I'm not - I'm not saying that you're being rude to me. It's just that you're - you're saying stuff that - ask me what happened. Q. No, no-- A. Yeah. She comes, her bag-- HIS HONOUR: Mr Bruce, it's counsel's job to ask questions of you the way he wants. Unfortunately, it's your task to just answer the questions. We all understand what you're thinking and feeling, but-- WITNESS: You don't, actually, sir. You don't understand watching that footage. You don't understand what I'm feeling for right now.
He was then asked about the yellow and white line: Q. It's an area of even more acute danger. If somebody's standing on that white strip, it's even more dangerous. A. There's no such thing as "more dangerous." It's dangerous when you're across that yellow line. Q. Beyond the yellow line is dangerous. A. Yes. That's the reason it's there. Q. You'd agree with me the train should not move if someone is standing beyond the yellow line if possible? A. Not necessarily. You've forgotten the fact that we also have our own risk assessment. We have it all the time, every station and peak, people standing on the other side of that line, but if all your indicators to go are met, you - you'll go, because otherwise the trains will not just move. You - you'll just be having a situation where you're just stuck there waiting for every single person to move across that yellow line, and that's not going to happen in the real world. Maybe in an idealistic world, it might happen, but it doesn't happen in the real world. Q. Do you not agree with the proposition that if possible the situation should be avoided whereby the train moves if somebody is inside the yellow line? A. I can't lie to you and say that that doesn't happen. It happens every day. Q. No, no, but can you just answer my question. Do you agree with me that if possible the train should not move if somebody is standing inside the yellow line? A. This is a really hard question to answer because it - it's - you're not being realistic.
Mr Bruce then said that, if the plaintiff was not clear of the train, he would not have moved the train: Q. She was in the danger zone. A. Yeah, but she was still clear of the train. If she wasn't clear of the train, I would have re-opened those doors, sir. I would not have moved that train. Trust me on that. Q. But you don't know whether she was clear of the train. When you looked at it today, you know she wasn't. A. When I looked it at today, yes, she had stuck something in - in those doors, but at that time, no, I had to go on what the white flag was telling me and what the train safeties were tell me. The toll, the beeps went, the flag was up, she was not in any kind of distress. The initial banging, which I thought she had banged because that happens every day - the doors close, people are frustrated, they want to get on the train, they bang thinking that the doors will re-open, but it doesn't work that way. Q. Do you say, then, that-- A. If I had known that she was caught-- Q. No, no. You need to-- A. --or something was caught, I would have re-opened the doors. It's as simple as that.
And finally, he was further pressed on what he saw and what he did: Q. You've got her standing in the danger zone - in fact, on the white line, inside the white line, that's right up to the edge of the platform - you've got her arm extended and in contact with the train. And in that position-- A. From the footage, yes. Not from what I remember seeing. Q. Well, we'll come to that in a moment. A. Yeah. Q. You know that her arm is extended and in contact with the train. You know that now. A. Bang - but now I know, yes. Q. Then, you assume that she was banging on the train doors. A. Prior to the - being shown the footage, yes. Q. And you took the attitude that if she was banging on the train doors, it was in frustration and so it was safe to move the train because she'd move away. A. It's not an attitude, it's just what happens. Q. You took the view that it was safe to move the train because she had missed her train and it was safe for you to pull the train out. A. Once she started to move away from the train, yes. Q. So it was very important that you be satisfied that she was moving away from the train? A. That's what I remember on the day. The lady bangs, and then she starts to move away, and the - I didn't say she had moved completely across the line, I just said she started to move away from the train. Q. But it was very important, from your perspective - before you did anything-- A. That she's moving away. Q. Yes. If she didn't move away - if she had stayed with her feet in the same position-- A. I can't tell you if I'm watching the feet - I'm up at back of the train, sir. Come on. Q. Just deal with this question. If she had not moved away and her feet had remained in the same position, I take it you wouldn't have moved the train. A. If she was not touching the train, I would have moved the train, because that happens every day. People are standing on - in the white - white zone. Q. So you would have moved the train while she was standing in the white zone as long as her hands weren't touching the train? A. It happens all the time, sir. Q. No, but your answer to my question, I take it, is yes. A. Yes. Q. So if she had been standing right on the edge of the platform, but with her hands beside her, you would have moved the train? A. Yes, because she is not causing a threat or a danger to herself or anyone, because she's there - I - and you're not - you're not - you're not remembering that I'm also following that white flag. That white flag is up, that bloke is much closer to her than I am. I'm at the end. Q. She is millimetres away from the train, at the edge of the platform, but you still think it's safe to move it, provided-- A. Yes, she's an adult. She's not going to - she's - she should move back.
The effect of Mr Bruce's evidence was that he believed it was safe for him to signal the train driver to move the train because the plaintiff had started to move away from the train. He said he agreed that she had not moved completely across the line (he was referring to the yellow line) but had just started to move away from the train.
In fact, the plaintiff had not moved away from the train at all. She was standing right on the edge of the platform on the white line. This is not a case in which a passenger had deliberately or accidentally moved just across the yellow line.
The plaintiff had moved to the edge of the platform and she remained there when the guard signalled to start the train. Yet at least having regard to his witness statement (prepared before he saw the CCTV footage), he did and would only cause the train to move after the plaintiff had moved away from the edge of the platform.
There may be merit in some of Mr Bruce's comments as to what a train guard can do and cannot do and how the system should operate albeit, as I have said, he was plainly approaching his evidence from the perspective that he was being attacked and that the suggestion was that he had done something wrong.
Having said that, it was clear from his witness statement that he gave the signal to start the train only after he "saw" the plaintiff moving away from the train. He was quite clear about that in his witness statement. It was apparent from his evidence that it had come as a surprise to him when he looked at the CCTV footage that that had not occurred. He may have been doing his best to recall what he saw in his witness statement but it is clear from the CCTV footage (and he agreed) that in fact she had not moved away.
The defendant says that "he perceived" that she was moving away from the train. I am not sure what that means in circumstances in which the guard said that he could see and was watching the plaintiff both directly and on the monitors.
I am uncertain of the basis on which the defendant could suggest that Mr Bruce perceived something which did not occur. That is not the language Mr Bruce used. He said he saw her doing something (which he accepted was critical to his decision to signal for the train to move). He then acknowledged that this did not occur (having regard to the CCTV footage).
I have said that the defendant had a proper system in place to ensure the safety of its passengers. Integral to that system was ensuring that passengers were not in positions of danger when the train started to move. Indeed, the defendant's system as documented in the OSP manual requires the guard to ensure that the passengers are safe when leaving and boarding the train.
On Mr Bruce's own evidence, this was something that he would always do before allowing the train to move. Yet he must not have done so on this occasion, that is, he must not have ensured that the plaintiff was not in a position of danger by checking that she was moving away from the train He might have assumed that she was but, having regard to the CCTV footage, he could not have seen her do so.
It must be that the defendant did not comply with its own system. That is, it did not, through its guard, do what was necessary to ensure that it was safe for the train to move. It did not ensure that a passenger, being the plaintiff, had moved away from the train. By move away, I do not intend to suggest that the defendant must ensure all passengers are behind the yellow line. However, being right on the edge of the platform is plainly a precarious and very dangerous position.
The plaintiff did not place herself in that position after the train had commenced moving. She was in that position before the train had begun to move.
In the circumstances, I am satisfied that the plaintiff's accident was caused by a casual act of negligence on the part of an employee of the defendant. The guard failed to ensure that the plaintiff had moved away from the dangerous position that she was in before he allowed the train to move.
What may be a position of danger is a relative term. How a person may come to be in a position of danger might vary but, in this case, the plaintiff had not commenced to move away from that position of danger, contrary to that which Mr Bruce asserted he had seen before moving the train.
In all the circumstances, I am satisfied that the defendant was negligent.
The failure to ensure that the plaintiff had moved away from the very edge of the platform caused the plaintiff to fall.
I do not accept that the plaintiff simply overbalanced as she was intoxicated. The train started to move immediately after the doors closed whilst she was hanging onto the strap of her handbag. This resulted in her being pulled or jolted and losing her balance. Of course, the fact that she had a hold of her handbag itself demonstrates how close she was to the edge of the train.

Contributory Negligence

Section 5R of the CLA is in the following terms: Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose- (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
As McColl JA identified in JA in Boral Bricks (at [47]): "The correct legal question in determining the issue of contributory negligence in accordance with s 5R is "whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had or ought to have had, was negligent": Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 (at [217]) per Hoeben JA (Macfarlan and Ward JJA agreeing) applying Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 (at [107] - [108]) per Basten JA"."
If the plaintiff is guilty of contributory negligence, then relative culpability must be assessed in accordance with the principles set out in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, which require: "... a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
The plaintiff accepts that she is guilty of contributory negligence. The defendant says that contributory negligence should be assessed at 100%.
The plaintiff placed herself in a position of danger by throwing her arm out as the doors were closing.
On the other hand, it is apparent that this is the sort of thing (that is, passengers attempting to board a train when it is too late to do so) of which the defendant was well aware and seemingly occurs on a regular basis. It is why it emphasises in its OPS manual the importance of ensuring the safety of passengers before allowing the train to move.
I am satisfied that the plaintiff was not intoxicated but had been consuming alcohol at the relevant time. Consuming alcohol before catching public transport is not of itself indicative of a failure to take care. Indeed, in our society, persons who drink alcohol are encouraged to use public transport.
Indeed, it must be that any system put in place by the defendant should recognise the likelihood of that occurring. Operating a train is an onerous and responsible position because trains have the potential to cause either catastrophic injury or death in the event of an accident. It is why it is necessary to comply strictly with the system and ensure that the passenger has moved away from a position of danger (in this case, the very edge of the platform) before moving the train.
The defendant was in charge of the dangerous moving vehicle. It was aware that passengers may sometimes act carelessly or foolishly. It was required to have regard to that prospect. Checking that a passenger has moved away from a precarious position before moving the train seems integral to that responsibility.
In all the circumstances, I consider that relative culpability should be assessed more against the operator of the train than the passenger. I assess contributory negligence at 33%.

Damages

As a result of the accident the plaintiff, who is currently 52, sustained a number of severe injuries, including: 1. intra-abdominal injuries, including the rupture of her bladder; 2. substantial pelvic fractures, which required skeletal traction and both external and internal fixation; 3. fractures in the lower lumbar spine; 4. lumbosacral plexopathy with a residual right footdrop; and 5. a laceration in the region of the right hip which became infected.
Following the accident, she was admitted to the emergency department of Westmead Hospital. She had a Glasgow Coma Scale ranging from 3-14 out of 15 with agitated behaviour. Her upper limb movements were normal to stimulation but there was no movement in the lower limbs. She had an acute trauma laparotomy which was repeated when she underwent a repair of her bladder. She initially reported no sensation of motor function in the right leg but that improved to a certain extent subsequently.
Her recovery was complicated by a deep venous thrombosis in her left leg, a wound infection in the area of the right hip requiring antibiotics and multiple surgical procedures, and septicaemia.
She was also diagnosed with a fracture of the fifth metatarsal of the left foot, multiple rib fractures with bilateral pneumothoraces requiring chest drains, diffuse bowel oedema and acute bilateral L1, L2, right L3, bilateral lower and left L5 transverse process fractures, as well as severe injury to the right lumbosacral plexus.
She remained intubated at Westmead Hospital for some time. She underwent further surgery involving the removal of the external fixation device on 2 October 2016. She was discharged from Westmead Hospital on 24 November 2016 and was transferred to St Joseph's Hospital in Auburn for rehabilitation.
She remained there until she returned home on 25 January 2017, although she still required outpatient care.
She moved from the place where she was residing prior to the accident to a ground floor unit in Pendle Hill in August 2017.
She then underwent further hospitalisation as a result of high blood sugar levels on 1 March 2018 and then underwent an operation to remove gallstones on 20 July 2019. It is not suggested that these problems are related to the accident.
The cross-examination of the plaintiff on her injuries and disabilities was limited. The focus of cross-examination was on her pre-existing health problems and the extent to which she had needed and will need care.
There is no doubt that the plaintiff sustained very extensive injuries from which she has not recovered, albeit her condition appears to have stabilised.
She continues to have pain in the lower limbs which is now worse on the right than the left. She has weakness in both legs, with the weakness in the right being greater than the left. She suffers from chronic pelvic pain referred into the groins bilaterally and up to the right thoracic spine which she sometimes rates as 10 out of 10 on a pain scale. She reports numbness in the right leg to the foot. She gets occasional bladder pain but has no incontinence. She has suffered from disturbed sleep due to her pain. She takes medication, mainly Panadox or Panadol once or twice a day.
She suffers from severe restrictions in walking and standing without assistance. Further, if she sits for long periods, her lumbar pain increases.
Dr Paul Darveniza diagnosed a 50% whole person impairment of the right lower extremity.
The plaintiff was examined on behalf of her solicitors by Dr Andrew Porteous, an occupational physician, and on behalf of the defendant by Dr Peter Slezak, a consultant physician. Again, they prepared a joint report. They were not required for cross-examination. The effect of their joint report is that she suffered from the injuries which she maintains; that her treatment has been reasonable and related to the accident; that her condition is stable; that she has an ongoing disability; and that her prognosis is guarded and that she will need analgesics on a long term basis.
Dr Slezak raised two issues of significance, being that: 1. He considered that there was a degree of embellishment with respect to her injuries; and 2. Her background of significant mental health issues impacted on her present condition.
He said that, having regard to his view as to her earlier alcohol intake, he would suspect that she would be predisposed to falls and her general medical condition would be influenced by alcohol and depression. This makes the assessment of the degree of underlying pain difficult to assess.
On the other hand, Dr Porteous had regard to the pre-existing conditions but maintains that there was no indication of limitations or reduction in capacity prior to the accident. He did not find any evidence of inconsistency in her presentation. He considers that she presented genuinely.
Dr James Bodel, an orthopaedic surgeon, considers that she has a severe disability with pain and stiffness, weakness and an inability to walk without assistance. Her prognosis is very guarded. She has no prospects of returning to work and needs extensive care. He felt that her future treatment remained conservative at this stage, although she may require a total hip replacement in the future because of the pelvic fractures. He felt she needed extensive domestic assistance.
Dr Michael McGlynn, a plastic and reconstructive surgeon, examined the plaintiff on behalf of her solicitors for the purposes of assessing the scarring. He noted that she has permanent bodily disfigurement due to scarring and loss of sensation to her right lateral thigh. The scarring will not be improved.
Only Dr Slezak suggested that there was any evidence of embellishment. He also raised concern that the plaintiff had not made mention of her background history of diabetes, hypertension and depression, despite having been questioned in that regard.
Dr Leonard Lee, a consultant forensic psychiatrist, who examined the plaintiff on behalf of the defendant on 17 February 2021, also cast doubt on her psychiatric condition. He did not consider that she satisfies a definable psychiatric diagnosis secondary to the physical injuries. He did not think she suffered from any psychiatric injuries. He felt her presentation was inconsistent with anxiety, depression or post-traumatic stress disorder. He noted Dr Slezak's opinion of embellishment.
Despite being a psychiatrist, Dr Lee undertook an analysis of the evidence of the orthopaedic and rehabilitation specialists, pointing out any inconsistencies on presentation.
Somewhat curiously, Dr Lee opined that whilst she is dependent on her children, this slightly predates the accident and is probably related to her difficulties in adjusting to life in Australia and excessive use of alcohol since her daughter's death. He said he cannot be sure that she no longer abuses alcohol.
The basis of Dr Lee's opinion is unclear. There is no evidence that she was dependent on her children for care prior to the accident. There is no evidence or even suggestion that she now abuses alcohol. I am not sure why any expert would feel it necessary to comment on something of which he could not be sure for the purposes of raising something adverse about the injured person. It rather taints the whole report.
Having regard to the extensive injuries sustained and the consequences which are generally agreed by the orthopaedic and rehabilitation experts, it is a little surprising that Dr Lee was so dismissive of her complaints. Further, of course, Dr Lee "cannot be sure that she no longer abuses alcohol" but the point of such comment in an independent expert's report escapes me. On one view, the focus of Dr Lee's answers in the joint report relate more to her alcohol abuse disorder than her complaint of depression.
I agree with the submission of Mr Catsanos SC that Dr Lee's report is of no assistance. In any event, the defendant did not put to the plaintiff that she was not suffering from the psychological symptoms which she maintains. The only question addressed to the plaintiff on her psychological condition was to the effect that she had been having treatment for depression and anxiety for some years before the accident occurred. It was not suggested to her that she no longer suffered from any psychological symptoms.
Whilst I note Dr Slezak's opinion as to some degree of embellishment and his contrary view as to the need for care (which would be consistent with the view of Dr Lee), it is again notable that it was not put to the plaintiff that she was embellishing her physical symptoms. I am not suggesting it should have been as the thrust of cross-examination related more to what she could and couldn't do.
Leaving aside Dr Slezak's view on possible embellishment, there is a consensus of medical opinion that she sustained severe injuries. If it was going to be suggested (which it was not) that the plaintiff did not need a walker or that she could move more freely than she suggested in her evidence and as she presented in Court, or that she could perform many more activities than she was currently performing, it would have been necessary to raise those matters with the plaintiff.
The defendant did not run its case on the basis of Dr Lee's opinion. Rather, it pursued it on the basis that much of the care she now requires was probably required before the accident and will continue to be provided by family members in any event (rather than commercial care).
I accept that the plaintiff suffers from the level of disability and pain she maintains which restricts her in the way that she maintains. She is able to move around very slowly with the aid of a walker. She is able to walk on flat surfaces and even able to get on a bus, which she says she does to visit her doctors. She is unable to drive. She would be able to undertake some items of personal care and do some domestic duties such as limited cooking but she remains a severely disabled person and will remain so for the rest of her life.
I assess non-economic loss in the sum of $400,000.

Care

The major area of dispute between the parties relates to the plaintiff's claim for care. The plaintiff claims gratuitous care for the past and commercial care in the future on the basis of 3 hours per day. Of course, the rates for gratuitous care are less than for commercial care. There are also thresholds which must be overcome.
The plaintiff gave evidence to the effect that, if she could afford it, she would utilise paid care. She also said that she hoped her children would become independent. Her daughter may move to Melbourne to reside with her partner.
The defendant's position on care is that: 1. She needs less care than 3 hours per day; 2. The care is unlikely to be provided commercially. It is likely that she will always remain with family members and that they will provide the care gratuitously.
I have already detailed the extensive nature of the plaintiff's injuries and disabilities. I accept that she has had significant knee problems and diabetes unrelated to the accident. She has also suffered from gout. She has suffered from psychological symptoms for a long period and more specifically since the death of her daughter.
However, I also accept that, despite those conditions, she cared for herself and her children prior to the accident. She undertook the domestic duties. There is no evidence that her children needed to dress her or tend to her personal care. There is no evidence that the children did the cooking and cleaning. Certainly, like many family situations, it may be that others living in the house assisted with the domestic duties but that fact does not defeat or detract from the plaintiff's claim in this case.
The plaintiff says that she receives particular assistance from her daughter, Ms Yel (now 22 years old), and son, Manut (now 26 years old). She says that she has to utilise the walking frame at all times. She is unable to walk up and down stairs and is in constant pain. She is unable to attend to domestic duties within the household. All household activities are now undertaken by Ms Yel and, at times, Manut, when he is not working.
She describes Ms Yel as her full-time carer. She says the only domestic duties she undertakes is that on occasion she does her own small shopping at Guildford. She is able to get on the bus with the assistance of the platform which raises and lowers. She generally stays at home watching television.
She says that although her daughter works as her carer, she wants her daughter to have a future for herself where she can undertake further study and obtain gainful employment.
When Ms Yel finished school in 2015, she commenced a course in psychology in 2016. However, after her mother's accident, she stopped that course. She then completed a Certificate III Course in Aged Care and Disability Nursing at Australian Employment and Training Services. She worked in that area for a couple of months before her mother came home from hospital and she became her full-time carer.
In her first evidentiary statement, Ms Yel provided an estimate of the minutes per day that she spends undertaking domestic duties and assisting her mother in personal care.
In her second evidentiary statement, Ms Yel says that she now does slightly less by way of personal care than previously. She again says that she wants to pursue her own career and studies but is not able to do so while she remains her mother's carer.
During her oral evidence, Ms Yel estimated that she would spend 4 to 5 hours per day every day of the week providing personal care and doing domestic tasks on behalf of the plaintiff. She does not go out very often and she has little time for herself.
Ms Yel was cross-examined on her estimate, including the length of time that she might take to do certain tasks. In particular, it was suggested that she did things for the benefit of her whole family, including her uncle and brother. She agreed that even if her mother had not had the accident, she would be doing a fair share of the housework. However, she maintained that it would not have been as much as she is doing now. She would have expected her brother to be able to wash his own clothes and look after himself.
Again, the point of the cross-examination was to establish that now that Ms Yel is an adult, she would have been undertaking her fair share of activities and doing some of the tasks which she now does, irrespective of the accident. That must be so, although as a matter of law that does not result in a reduction in the assessment of the value of the services gratuitously provided.
It was put to her that in the foreseeable future she would remain living with her mother and caring for her brother and Uncle. She did not agree with that proposition. She said she wanted to move away from Sydney. She was unable to comment on what her brother might do.
The plaintiff obtained an expert report from Erika Skibby, an occupational therapist. The defendant did not tender any report from an occupational therapist. Ms Skibby prepared a schedule setting out her opinion as to the level of care that the plaintiff has required in the past and will require in the future.
She was cross-examined on a number of items in her schedule, including items relating to the cost of replacement equipment. It was suggested to her that the assumptions she made as to the care that the plaintiff would need were inaccurate.
Examples such as the plaintiff's trips to the local shopping centre on the bus were raised. As Ms Skibby said, she takes a practical approach. She acknowledged that the plaintiff may be able to go somewhere accessing public transport but her mobility was still limited. She could only walk so far from the train station or bus station.
It was put to her that her estimate of the plaintiff's needs was excessive. She disagreed. She explained how she came up with her estimate of 8.75 hours per week for personal care and 10.5 hours per week for domestic assistance.
She was challenged on whether she had considered matters such as the fact that the plaintiff's daughter might be doing some of the tasks not only for her mother but for herself and her brother. She said she had taken account of those matters.
She disagreed that her estimates were overly generous, pointing out that, in her view, the plaintiff had been receiving incidental care as a result of her living arrangements, and this had been taken into account. She said that if the plaintiff had been living alone, her care needs would have been much higher.
She also disagreed that the estimate of 10.5 hours per week was excessive.
During submissions, the defendant suggested between 2 and 3 hours per day would be reasonable but that any claim for commercial care should be rejected as the plaintiff would be living with her daughter. He urged a greater allowance on account of contingencies.

Assessing care

Claims for domestic and personal assistance are regularly pursued in this Court. Such claims are sometimes supported by estimates from occupational therapists and include sometimes excessive estimates from family members. It is surprising how often in one week people scrub bathroom floors, mop the kitchen and dust and vacuum.
In some cases, these claims for care might be viewed as ambit claims without much of an evidentiary basis. This is not such a case. This plaintiff sustained very severe injuries. As a middle-aged woman, she is unable to walk without assistance, unable to stand for long periods and appears to be in constant pain.
Since coming home from hospital she has been cared for by members of her family. Her daughter has forsaken all employment opportunities whilst she has cared for her mother. Her daughter wishes to move to Melbourne to be with her partner and her mother wishes for her daughter to be independent. The plaintiff's son works full-time as a plumber.
Yet it is the defendant's case that because of their Sudanese background, they will stay together as a family, thereby making the children always available to care for their mother. I am uncertain as to why I would accept such a suggestion in circumstances in which both the plaintiff and her daughter gave evidence to the effect that they both wish the daughter to be independent and pursue her own interests.
It is also important to observe that the basis on which care is assessed is different, depending on whether it is gratuitous or commercial care. The entitlement to damages for gratuitous care is governed by s 141B of the MACA. It is relevantly in the following terms: 141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA) (1) Compensation, included in an award of damages, for the value of attendant care services - (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided) - (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months.
No compensation is to be awarded if the services for which damages are claimed would have been provided to the plaintiff even if the plaintiff had not been injured.
Further, no compensation is to be awarded unless the services are provided or are to be provided: 1. For at least 6 hours per week, and 2. For at least 6 consecutive months.
In this case, there is no dispute that the care provided in the past was provided gratuitously and that it was provided for at least 6 hours per week and for a period of 6 consecutive months. However, the defendant says that at least some of the care that has been provided by the plaintiff's family would have been provided even if the plaintiff had not been injured.
Further, the defendant says that some of the services which were provided benefitted not only the plaintiff but also other family members. These contentions give rise to two different principles.
To the extent that it is possible to separate time spent on services for the benefit of other family members and time spent on services for the benefit of the injured plaintiff, then no damages should be awarded for gratuitous care provided for other family members. [6] That is, because the time that is severable was not spent for the benefit of the claimant but for other persons.
On the other hand, where the time spent on services is not severable, then the plaintiff is entitled to the value of the services provided to her, even though some of those services might also benefit other family members.
Assessment of damages for care provided on a commercial basis is not restricted by the requirements of s 141B of the MACA. Having said that, prior to awarding damages for commercial care, it is necessary to be satisfied that the plaintiff will engage commercial carers rather than continue to receive gratuitous care from her family members.
In assessing whether gratuitous or commercial care might be provided in the future and at what point such care might change, it is necessary to have regard to the injured person's family circumstances. It is true, as the defendant points out, that the plaintiff's son and daughter continue to live with her and that they have been living with her throughout their lives. It may be that there is a typical family situation with those of similar backgrounds to the plaintiff but I would not prefer what might be said to be typical by the defendant over direct and specific evidence given by the plaintiff and her daughter.
The plaintiff's accident has had a catastrophic effect on the plaintiff and no doubt impacted significantly on her daughter and her son. However, it is hardly surprising that her daughter does not wish to be her mother's full-time carer into the future and hopes to join her partner in Melbourne where she can pursue career opportunities. There is no evidence from the plaintiff's son that he will in some way reduce his employment to care for his mother and take up any role that his sister might be performing.
Damages for care are compensatory. Whether under the CLA or the MACA, the value of gratuitous care is subject to thresholds and the hourly rate is determined by the statute. For commercial care, there are no thresholds and the hourly rate is determined by the market cost of such care.
Claims for care are often accompanied by a minute-by-minute analysis prepared by expert occupational therapists. No doubt those occupational therapists devote considerable time to preparing their reports and use their considerable expertise to provide estimates. However, the estimates sometimes prove unreliable because the minute-by-minute analysis can often be dismantled.
Yet in this matter, Ms Skibby's assessment must be viewed as quite reasonable. As is apparent from Ms Skibby's schedule, she has not included in her assessment the whole amount of time that the plaintiff herself might have spent performing certain tasks. Her estimates have been reduced to reflect the time that would be necessary to care only for the plaintiff. The type of severing of services to which the defendant refers has been accounted for in Ms Skibby's estimate.
In the end, the plaintiff's claim is based on Ms Skibby's estimate of approximately 3 hours per day or 21 hours per week. This is hardly excessive. It is much less than the amount of time that Ms Yel estimates she actually takes to provide both personal and domestic care for her mother. It is much less time than would have been taken by the plaintiff (not that that is the test).
The defendant did have some success in cross-examining Ms Yel in terms of her estimate but the fact remains that since 25 March 2017, the plaintiff is only claiming 3 hours per day, not 5 hours per day as estimated by Ms Yel.
Ms Skibby divides the claim for past care into 7 phases. For the first period in which she was in hospital, no claim is made. The second period is only for a period of 8 weeks and it is made for 26.75 hours per week. This was the period after the plaintiff returned from hospital and when she needed the most amount of care. From then on, Ms Skibby estimates a figure of 21.25 hours per week up to the present time and into the future.
Further, her allowance for transport attendant care reduces from 2 hours to 1 hour going forward. It is difficult to understand how it could be suggested that such person with the plaintiff's disabilities would not need transport assistance (that is, taken places she needs to go) for at least 1 hour per week.
I consider the claim for 3 hours per day to be reasonable as: 1. Whilst the plaintiff may be able to in part dress herself, she cannot completely dress herself. She needs help undertaking personal tasks. 2. As she cannot stand for long periods, she cannot do things such as cooking. She may be able to make some simple meals such as sandwiches but she cannot make a full cooked meal. 3. She is unable to do tasks such as cleaning the bathroom and the kitchen, vacuuming, hanging the clothes on the line, scrubbing the bathroom floor, mopping the kitchen floor, sweeping the outside, mowing the lawn and doing the gardening. 4. She cannot drive a car and can only use public transport on a limited basis. She can only walk on flat surfaces. She is unable to walk up hills.
Reflecting on ordinary human experience, the evidence of the plaintiff, her daughter, and the expert opinion of Ms Skibby, leads to the conclusion that 3 hours per day is not excessive.
No contrary opinion was put forward by the defendant. As I have said, the approach of the defendant was to cross-examine the plaintiff, her daughter and Ms Skibby so as to demonstrate the estimates were in some way excessive, or that in some way they should be reduced to take account of family circumstances. For the reasons set out, I have rejected the defendant's approach.
For the purposes of assessing care, I make the following findings: 1. Prior to the accident the plaintiff undertook all of the domestic tasks around the house and she was completely independent in her personal care. 2. It may be that as her children grew older they would have assisted more with domestic tasks (irrespective of the accident) such that the load on the plaintiff might have been reduced. 3. Having said that, Ms Skibby has attempted to separate the time spent on looking after the plaintiff and performing other domestic tasks. 4. The claim at 3 hours per day is significantly less than the estimate of care provided by the plaintiff's daughter. 5. For the reasons I have given, I am satisfied that care will be provided on a commercial basis in the future. 6. The rates for care must be assessed in accordance with the MACA for the past and in accordance with the market cost of such services for the future. 7. The plaintiff satisfies all of the thresholds set out in s 141B of the MACA for the past. 8. The plaintiff's condition appears to be stable and her need for care going forward is equivalent to her current need. That is, approximately 3 hours per week.
The remaining matter is the question of contingencies. Both parties submitted that it may be appropriate to allow for some reduction on account of contingencies. It is not necessary for me to consider whether that would always be so but, in this case, as I understand the plaintiff's position, it is accepted that there might be some allowance for contingencies.
The plaintiff did have pre-existing knee problems. She has not yet undergone operative treatment. She also suffers from diabetes. She suffers from a pre-existing psychiatric condition, being depression, no doubt exacerbated by the death of her daughter.
Further, the defendant submitted that the plaintiff might have continued to consume alcohol in excessive quantities which might have impacted upon her ability to care for herself. Whether that be so, the plaintiff has not consumed alcohol since the accident. I am uncertain of the relevance of a proposition that she might have continued to consume alcohol if not for the accident, particularly in circumstances in which both the claim for past and future care is based on her reasonable needs consequent upon the injuries sustained in the accident.
Yet there are many things that might have happened to the plaintiff irrespective of the accident. Further, it may be that there will be periods when she receives care from her family members rather than commercial care. It may be that because of her knee problems, she might have needed assistance as she got older. Allowing for these contingencies, I would reduce her claim for future care by 20%.
There being no dispute as to the rates, and as I have accepted the plaintiff's claim (it is notable there is no evidence to the contrary), then the damages I would award are consistent with the plaintiff's claim.
I allow the sum of $187,488.33 for the past. I allow the sum of $802,581.60 (taking into account the 20% discount) for the future.

Claim for future accommodation needs

The plaintiff claims the sum of $823,064.00 based on an assessment made by Ms Skibby of her future additional accommodation needs. That sum is calculated on the basis of $940 per week for the rest of the plaintiff's life. In the plaintiff's final schedule of damages, that figure is discounted by 50% so that the actual amount claimed is $411,532.
In her report, Ms Skibby suggests that the plaintiff's current home is not suitable or safe in terms of access or bathroom facilities. She suggests that the plaintiff will only be able to manage her current living situation if she has the benefit of assistance from her children as and when needed.
Assuming she will not have that as-needs assistance going forward because she will be utilising commercial care, then the plaintiff would not be able to continue living in her existing accommodation. She requires accommodation with a concierge or similar services available 24 hours a day, providing assistance on an as-needs basis between visits from carers. The plaintiff did say in oral evidence that if her children moved away she would take up the arrangements in respect of alternative accommodation if she could afford it.
On her research of appropriate facilities, the cost would be $1,120 per week. At the moment, the plaintiff's share of the current rent is only $180 per week. Ms Skibby then adopts the difference, being $940 per week.
The defendant did not respond to this opinion with any alternative costing or opinion as to how such additional needs might be catered for on an ongoing basis. Instead, the defendant relied on cross-examination of the plaintiff and Ms Skibby, suggesting that the scenario put forward by Ms Skibby would never arise because the plaintiff will always be living with family members.
In terms of the defendant's position on this claim, I raised this issue during oral submissions as follows: "HIS HONOUR: Just to be clear on your submission again, Mr O'Dowd, you're not saying she doesn't have a reasonable need for that, but you're saying that on the evidence, I would accept that she's likely to be living with her daughter and son for the rest of her life rather than taking up that option. Is that what you're saying? O'DOWD: Correct. Yes, your Honour. HIS HONOUR: Thanks."
The defendant's position is thus that there may be a reasonable need for such services but the plaintiff would never be utilising them. Whilst the onus remains on the plaintiff to establish her loss, the proposition that she would never utilise such services (for which the defendant accepts she has a reasonable need) seems somewhat optimistic.
As a matter of principle, such a loss is recoverable. In catastrophic injury claims, plaintiffs are often required to expend additional sums on accommodation as a result of the injuries they have sustained. There is a direct connection between the need for more suitable accommodation and the claimant's long-term disabilities.
In this matter, the plaintiff's claim for future care is limited to 3 hours per day. It follows that there will be long periods when the plaintiff is at home and might need some incidental assistance. As the plaintiff's claim for the future is based on commercial care, then it must follow that there will only be a limited number of hours per day when such commercial assistance will be present in the home.
However, it is one thing to suggest (as the defendant did) that the plaintiff's ordinary care needs will be provided by members of the family for the rest of her life and another to claim (as the plaintiff does) that she will, in effect, be living alone, such that she will have a need for concierge services.
I have accepted that the plaintiff's daughter will not be the primary caregiver going forward. However, the plaintiff accepted that on a longer term basis, she might move in with her son and his wife (should her son get married).
Of course, whether that actually occurs may be somewhat speculative at this point but I am satisfied, having regard to the cross-examination of the plaintiff, that the plaintiff would hope to live either with or close to a family member in the future. That does not detract from the need for external assistance but detracts from the likelihood that she might need to move somewhere which has such concierge services on a 24-hour basis.
Further, the estimate of weekly costs is based on the plaintiff only having to pay $180 per week rent going forward. That could not be so on any realistic assessment and again ignores the likelihood that the plaintiff's daughter will be living an independent life.
I am satisfied that the plaintiff will not be requiring her family members to care for her on an ongoing basis, albeit that she hopes to be living with or close to one or other members of her family. Having regard to the needs of the plaintiff, she will be requiring this type of incidental care over and above the 3 hours' commercial care but when and how often and how it might be provided is uncertain.
In these circumstances, the plaintiff should be entitled to some allowance on account of the need to move to other accommodation where such incidental services might be available, but such a claim should be discounted significantly.
I would discount the claim by 65%, having regard to the fact that the weekly amount claimed is excessive as the base rent paid by the plaintiff is too low for the future. Further, there may be periods and indeed extensive periods when she obtains such a benefit from living with some family member.
Discounting the plaintiff's claim by 65% results in an allowance of $288,072.40.

Out-of-pocket expenses

The plaintiff's past out-of-pocket expenses are agreed in the sum of $7,410. The plaintiff has had extensive treatment through the public system.

Future medical expenses and equipment needs

There was some limited cross-examination on the plaintiff's future equipment and medical needs. The defendant focused on Ms Skibby's estimate of replacement periods and costs and the need for some of the services. Some of the amounts claimed such as the installation of handrails and bathroom modifications could not be in dispute. There was no challenge to the evidence that the plaintiff will require a total right hip replacement.
I doubt that the plaintiff will be having an occupational therapy assessment as Ms Skibby has already provided a report.
I allow the sum of $30,440 for future out-of-pocket expenses.
In terms of continuing expenses, I doubt that the plaintiff will be undertaking rehabilitation specialist reviews, having regard to her lack of such reviews in the past. I accept that she will recommence physiotherapy and take pain medication. I am not satisfied that she will undertake the adjustment to injury counselling. She needs podiatry care and there was really no challenge to the types of rehabilitation, equipment and services she needs in the future, other than a challenge to the replacement periods. Ms Skibby explained her assessment of the replacement periods.
I thus allow the claim for equipment in the sum of $13,593.69.
I allow the total sum of $44,259.21 on account of the continuing expenses (including the claim for equipment) claimed in the plaintiff's schedule. Again, it does not seem to me that the claim is overstated for a middle-aged woman who is now so restricted in mobility that she can only move around with the aid of a walking frame.

Schedule

In the circumstances, my assessment is as follows: General damages $400,000.00 Past care $187,488.33 Future care $802,581.60 Additional accommodation costs $288,072.40 Past out-of-pocket expenses $7,410.00 Future medical treatment $30,440.00 Continuing equipment and treatment needs $44,259.21 TOTAL $1,760,251.54

Damages are assessed in the sum of $1,760,251.54. I apply a 33% reduction on contributory negligence.
In the circumstances, there will be a judgment for the plaintiff in the sum of $1,179,368.53.
Subject to any party wishing to make an application to vary any costs order, I order the defendant to pay the plaintiff's costs.

Endnotes

(2014) 86 NSWLR 393; [2014] NSWCA 139 at [38]-[59] (McColl JA); [79]-[100] (Basten JA).
Chol v Sydney Trains (No 2) [2022] NSWSC 1267.
(2022) 96 ALJR 337; [2022] HCA 11 at [106] (Gordon, Edelman & Gleeson JJ).
Ibid at [114] (Gordon, Edelman & Gleeson JJ).
[2001] NSWCA 394.
White v Benjamin [2015] NSWCA 75; (2015) 70 MVR 188 at [15] per (Beazley ACJ) (as his Honour then was). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2022

(2010) 174 LGERA 208

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