El Hallak v Sydney Trains - [2020] NSWDC 374 - NSWDC 2020 case summary — Zoe

NSWNSWDC

El Hallak v Sydney Trains

[2020] NSWDC 374

District Court of NSW|2020-07-02

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2020-07-02

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

INTRODUCTION

This case concerns a claim for damages for personal injury against an occupier of property. The plaintiff, Mr El Hallak, who was employed as a cleaner [1] at the time, alleges that on 16 January 2017, he was walking along a platform at the Mortdale Maintenance Centre at Oatley and, that after having stepped on a hole on the edge of a platform, he got his left leg trapped in the space between the platform and a stationary train alongside the platform, with his right leg falling to the ground. His claim is brought against the defendant, Sydney Trains, a statutory corporation. Cleantech was a subcontractor to Sydney Trains, supplying cleaning services.
The plaintiff contends that the defendant was negligent. Essentially, he alleges that the defendant failed to repair a hole or gap on the surface or, more precisely, on the edge of the platform that was used by cleaners (or maintainers) to walk on to access the trains. He says he suffered physical injuries to both of his knees, his back and left elbow, as well as 'shock'. By his Sixth Amended Statement of Particulars, he listed a range of disabilities associated with those injuries and makes claims for past and future medical expenses, past and future care and assistance and past and future loss of earning capacity. At trial, however, he did not pursue the claim for past domestic care and assistance.
The defendant wholly disputes liability. It says that far from walking along and then falling from the platform into the space between the platform and train, the plaintiff had actually stepped back off of the train. It disputes that it owed a duty of care or, if it did, that such duty of care was breached. It denies that he suffered injuries as a result of any negligence on its part.
Further and in addition, it relies upon the defence of obvious risk as contained in s 5F, which, it says, relieved it of any obligation to warn of a risk (noting that there is no particular of negligence positing any duty to warn). Further and/or alternatively, it says that such damages to which the plaintiff may be entitled are liable to be reduced on account of negligence by the plaintiff's employer pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) (the 'WC Act').

[2]

The plaintiff's evidence

The plaintiff said that on the date of the incident, he was working with a group of people, including Mr Kalil Fadda. He had worked with Mr Fadda since May 2016. The plaintiff said that they were only work colleagues - they did not socialise. Until giving evidence in Court, the plaintiff said that he had not seen him since the incident occurred.
The plaintiff started his work shift at 9:00pm which was intended to finish at 5:00am. At about 9:30pm, he was working along the '6 Back' platform. The plaintiff elaborated that alongside each platform, there was a train at the front of that side of platform and one towards the back; which were in for cleaning. It was a narrow platform for workers: they could not walk together side by side. The plaintiff was not carrying anything at the time.
The plaintiff explained that he was there to do what he called 'deep ("D") cleaning'. This was the most extensive form of cleaning of a carriage of the stationary train; in comparison with other types of cleaning: it involved, for example, the application of a range of chemicals. He recalled that Mr Fadda was behind him at the time. He and Mr Fadda were preparing to go into one or more carriages to assess the nature and extent of cleaning to the carriage that they were (respectively) concerned with.
As he was walking along, the plaintiff felt his left foot get caught on a hole on the platform and that the left foot and, thereafter, his left knee, slid in the space between the platform and the train. At about the same time, he felt his right knee hit the platform hard. He recalled being thereafter lifted up by his shoulders by Mr Fadda.
Under cross-examination, the plaintiff accepted that he had walked along the 6 Back platform before on multiple occasions (greater than 10). He also accepted that it was likely that he would have walked past the place where the hole appeared on the edge of the platform prior to the subject incident.
It was suggested to the plaintiff that in order to walk safely along a narrow platform, he had to be aware where the edge of the platform was. This much the plaintiff accepted. It was then suggested that it was an easy thing to avoid stepping on the hole, which was located on a continuous stretch of yellow line, if he had watched where he was going. It was not in his interest to have his foot on the yellow line, if walking in the direction of the platform: to do so would mean that his shoulder would either be touching, or at least very close to, a train itself. Further, if he was facing the platform itself (and not a train), and his foot was touching the hole, then the outer part of his boot would necessarily have to be either within the yellow line or possibly even in the space between the edge of the platform and the train.
To these questions, the plaintiff answered that he could not recall how his foot got to touch the hole on the edge of the platform, on the yellow line, but he disputed that this was a result of his not watching where he was going. He distinguished between putting his foot in this hole on the edge and his foot getting caught up in it.
Upon the plaintiff's recall, it was suggested by the defendant's Counsel that given the size of the plaintiff's boot, for it to be "caught up" in the hole the boot had to fit within the hole. The plaintiff disagreed with this.
The plaintiff took two photographs later in the evening, or early in the morning, when he reported the incident to Ms Renee Baker, the safety manager [2] . In the first of those, there was a conspicuous hole or chunk out of the platform edge and that hole appeared in what was an otherwise faded yellow line. The other photograph was taken from the inside the train. As to the latter photograph, it was put to, but denied by, the plaintiff that the circumstance that he took the photo from inside the train was consistent with the scenario that he slipped onto the hole on the edge having disembarked from the train.
These photos were reproduced by the plaintiff's liability expert, Dr Cooke, a consultant architect. The plaintiff assisted Dr Cooke to compile some additional photographs, two of which indicated that the hole on the edge of the platform where the plaintiff said he placed his foot and slipped had been subsequently covered over and painted.
It was squarely put to the plaintiff, but denied by him, that between the time he gave his initial account of what occurred to Ms Baker, he had changed his version when reporting it to others. He denied this.
The plaintiff said that he felt embarrassed by the fall. Mr Fadda suggested that he report the incident to Ms Baker. But the plaintiff recalled continuing to do his work until about 2:30am when he had finished work on a carriage. At this point, he felt pain with his left knee. He recalled that it was swollen. It was about 2:30am that he reported the incident to Ms Baker. He did this by walking to her office, which was situated about 2 minutes away. He said that he went by himself.
The plaintiff recalled Ms Baker asking him to take her to the point where the fall occurred and to explain how it happened. They walked to the '6 Back' platform and he said that he showed her where and how he fell. He did not however give evidence as to the content of that conversation; other than to say that Mr Fadda had been walking with him at the time. He recalled her taking some photos and he took one himself. After this demonstration had occurred, he rested in the 'lunch' office until 5:00am.
As I have noted, in his evidence in chief, the plaintiff was not asked what he actually said to Ms Baker in his description as to how he fell (T45). By contrast, under cross-examination, Ms Baker's version of what was reported to her by the plaintiff, which I refer to below, was put to the plaintiff (T85-6). He disputed every part of Ms Baker's report. It was put to him that Mr Fadda was present at the time of the demonstration to Ms Baker, but the plaintiff denied this.
Thereafter he went home. He spoke to his wife. At about 1:40pm that day, he visited his general practitioner, Dr Assad Malek.

[3]

Credit

I acknowledge that at least in a couple of instances, the plaintiff disclosed things which might not have been apparent to the defendant; or at least obviously so. For example, in respect to his very recent employment with Avanquish, there was no indication that the defendant would have been able to have established this. His Counsel disclosed that he had a fall in 2019 affecting his knee for the purpose of clarifying that this was not attributed to the subject incident. That was perhaps more apparent. Nevertheless, these disclosures augment his credit.
Nevertheless, I am cautious in accepting his evidence as I felt that at certain times, he was stone-walling in the face of questions which did not sit easily with his account. Thus, for example, he denied that, at a point when his foot had been placed on the hole on the edge of the platform (or what the defendant's Counsel referred to as the 'notch') that his shoulder (if pointed in the direction of the platform) must necessarily have been very close to, if not touching, the train. I regarded that evidence as implausible but the plaintiff adhered to it more than once. I found elusive, or at least implausible, the distinction he drew between placing his foot on the hole on the edge of the platform and getting caught up in it. I also accept the defendant's submission that there was a material inconsistency between the plaintiff's initial evidence that he and Ms Baker had dialogue on the platform after the incident (T45) (albeit without disclosing what he actually said to her) with his later evidence denying that they had (T85.20 - 86.14).
The plaintiff evinced an inherently surprising lack of recollection of advice and information he had received from third parties concerning his capacity to return to the workforce; which led me to doubt the extent of his general recollection of material events. Indeed, I later find that the plaintiff was capable of returning to the workforce earlier than he did. Further, for reasons to be elaborated later, I accept that it appears that there was over-servicing in connection with the treatment of his left knee. Those matters cast doubt upon the general veracity about his complaints concerning that injury and feed the Court's concern that the plaintiff's claim on quantum has been inflated beyond a reasonable range of outcome.
I treat his evidence with caution.

[5]

Mr Fadda's evidence

Mr Fadda was a work colleague of the plaintiff's at the time. Mr Fadda gave evidence that the incident occurred during an evening shift, which might have occurred in the time period between 9:00pm and 5:00am.
He said that he was located 2m to 3m behind the plaintiff when they were both walking along a narrow platform, which he thought to be 1.4m wide in the direction of the depot. This space was not wide enough to allow for two people to walk side by side. He recalled that he was carrying a bucket at the time. He saw the plaintiff fall and he saw part of the plaintiff's body fall in the space between the platform and a stationary train. He rushed to help him and recalled hauling the plaintiff up to the ground by his back.
Mr Fadda also gave evidence, and in the process was referred to some photographs, which showed that the edge of the platform was typically illuminated by a bright yellow line. However, at or about the point where the fall occurred, this yellow line was somewhat faded. Mr Fadda also recalled that there was a hole, or "chunk" out of the edge of platform. This was depicted in the photograph which appeared in the plaintiff's tender bundle (Exhibit A, p 415).
Mr Fadda told the plaintiff that he should report the incident to the depot's safety manager, Ms Renee Baker.
Mr Fadda gave evidence that the relevant section of the yellow line was subsequently repainted, a day or two later.
Mr Fadda left his employment a few months after the incident. He had another job and had university studies.
Mr Fadda was generally challenged as being biased or partial to the plaintiff. He was referred, under cross-examination, to an undated typed statement (Exhibit A, p 131) he had prepared. The witness accepted that he had spoken with the plaintiff and had discussed the incident with him. He also accepted that he had shown concern about the plaintiff's welfare; although he added that in providing assistance, he wanted to make sure that what occurred did not happen to anyone else.
It was suggested to him that there were inconsistencies in his account, such as when he said in the typed statement that there was no visible (yellow) line, in contrast to his evidence in Court that it was only partly visible and his specific, or perhaps more emphatic, evidence in the statement that he had seen the right knee hit the platform hard; compared to the more generic evidence he gave in Court.
It was suggested to Mr Fadda that he was privy to the plaintiff providing Ms Baker an account which Mr Fadda knew was contrary to Mr Fadda's recollection of what had occurred: namely, that the fall arose whilst the plaintiff had stepped back off from the train onto the platform. Mr Fadda said that he did not recall this. In re-examination, Mr Fadda was referred to a short and signed version of a statement he had prepared in February 2017, which was consistent with his evidence in Court that the incident occurred whilst the plaintiff was walking along the platform.

[7]

Ms Renee Baker

Ms Baker commenced her employment with the defendant in October 2007. She was a carriage cleaner, although, from 2008 she was also part of the work safety and health committee; as well as being a first aid officer. It was in her capacity as work safety and health committee member that the plaintiff reported to her after his fall. It was in that capacity that she conducted an investigation after receiving report from the plaintiff.
A curiosity concerning Ms Baker's evidence was her lack of ready retention of various documents. She indicated, for example, preparing a single page note of her observations and of what the plaintiff had told her on the early morning of 17 January 2017. But this document, along with hard copies of other emails and other documents, had been retained at her home. She had moved home last August and many hard copy documents relating to this incident, and a range of other work incidents, had been kept in shopping bags or boxes at her home. She had not looked for them prior to giving evidence. This was so notwithstanding that she was to give evidence in late 2019 and had two video conferences with lawyers for the defendant in the week before she gave evidence. She also said that prior to giving her evidence she had looked at her computer to check for such things as photos which may appear, but she could not gain access because of IT issues.
Certain calls were made on the plaintiff's behalf for documents identified during the course of her cross-examination, but those calls substantially received no response, until the hearing was adjourned, prematurely, on day 2 to enable Ms Baker (with the assistance of the defendant's lawyers) to retrieve certain documents and have them informally produced.
Ms Baker said that she first saw the plaintiff very early in the morning on 17 January 2017 whilst she was at a crossing. That was where she received her first verbal report from him about his having a fall and suffering an injury. She had no further detailed recollection of what was said at this time.
They went back to the CIC office. This was where the first aid section was and Ms Baker said that she wanted to look at his knee. There, the plaintiff repeated that he had had an accident. Ms Baker asked him to pull up his trousers and noticed that he had a red spot. They had a conversation about his calling the injury hotline.
Asked why she repeated her question as to how the injury occurred both at the crossing and in the CIC office (the first time), Ms Baker said she did not fully understand how the accident occurred, and in particular, whether it occurred whilst he was in a train or not. She asked the plaintiff to demonstrate where and how he fell. They arrived at '6 Back' platform where a hole was located on the platform's edge. She recognised the hole and the faded yellow line. She did not consider that the lighting affected her visibility of the hole.
She recalled the plaintiff informing her that he was coming out of the train, stepping backwards, and the toes in his boot fell into the hole. This caused his left knee to buckle, bending in a forward direction and he fell forward (emphasis supplied). She recalled him telling her that he had been mopping in the carriage.
Not quite grasping what he had told her, Ms Baker then undertook a demonstration to the Court, which confirmed what I have noted above. She did this with the plaintiff a short distance, probably half a metre away. Ms Baker recalled that Mr Kalil Fadda was also in the vicinity; though inside the carriage in the vestibule. Mr Fadda was silent throughout.
After the demonstration, they returned to the CIC office. Ms Baker encouraged the plaintiff to call the injury hotline. This is what the plaintiff did. In evidence (Exhibit A, pp 131A - 132), there was a safety incident & injury hotline report, circulated amongst various personnel within the defendant at 2:02am on 17 January 2017. It was the plaintiff who recorded the description of the incident, which was in the following terms: "Ayman was walking on the platform, tripped on an uneven surface - left foot became jammed between train and platform, now has redness to left foot and left knee pain".
Ms Baker's name was listed as the supervisor and it was indicated that she had been contacted.
Ms Baker was in and out of the CIC office when the plaintiff placed her call. She did not think it was important for her to pay attention to what he was saying. She did not notice how long the phone call took. She said that she did not recall seeing the safety incident and injury hotline report that I have referred to. She had not seen the Cleantech report that the plaintiff had completed, but said she believed that he might make that report.
Separate to this report, however, and without the plaintiff being present, she said she prepared a note on a spare piece of paper to record her own observations; as well as her record of what the plaintiff told her as to how the accident occurred. That note was the subject of a call during cross-examination and, after Ms Baker had made inquiry, she could not retrieve it and produce it to the Court. It was suggested that she did not make such a note. Ms Baker maintained that she had.
Asked in cross-examination when was the first time she had reported her observations, Ms Baker said that it was when she told either Abdul Khodr, her supervisor, or Ahmad Addouj (a cleaner in charge). She could have reported to Mr Khodr, either verbally or in writing.
At 2:33am on 17 January 2017, she sent an email to Nohad Kanawati, who was the Maintenance Manager. She adverted to the plaintiff's 'slip, trip and fall' incident in '6 Back'. She informed him that there was a gap in the platform; that the yellow marking had worn away and needed to be re-done. At 6:21am, Mr Kanawati responded, and effectively authorised the application of yellow paint.
Ms Baker accepted that she had not provided an account of how the plaintiff fell, based upon what the plaintiff had told her. She said she did not do so since she did not think that he needed to know. Having regard to the document (Exhibit 2) which was tendered during re-examination, it appears she was mistaken when she accepted that she had not given a written account of what the plaintiff had told her.
Ms Baker had requested that the yellow paint be reapplied to the line by sending an email to the maintenance manager, Nohad Kanawati. This has since occurred. She also requested that the hole be rectified. In answer to my question as to why she did so, Ms Baker said that it was because of the accident. She thereafter accepted the proposition put to her by the plaintiff's counsel that it was also because the situation of the gap being on the platform was 'dangerous'.
But Ms Baker said that the hole had still not been rectified. She could not recall any other incidents of like kind to this one.

[10]

Consideration

As a preliminary observation, the two versions of how the incident occurred were starkly different and, unsurprisingly, the plaintiff did not seek to plead a case in negligence on the basis of both scenarios as true alternatives. I say it is unsurprising since in my view it is inevitable that different considerations would apply to the questions of breach of duty (including, but not limited to identifying the 'risk of harm'), causation and contributory negligence in each scenario.
I prefer the defendant's account of how the fall occurred to the plaintiff's account.
I prefer the evidence of Ms Baker of the content of the report to her, approximately 5 hours after the incident, to the accounts of the plaintiff and Mr Fadda. I have already indicated my general favourable view of her credibility and reliability when set against these two witnesses. On this point, the circumstance that the plaintiff may have stated an account to the safety incident hotline and repeated it to medical practitioners that was contrary to what he told Ms Baker does not, in my view, render it more or less likely that the account was true. It is notable that Counsel for the plaintiff did not identify a single instance where the plaintiff rendered an account to persons other than Ms Baker in Ms Baker's presence or within her hearing. If that had occurred, I consider that it would have caused Ms Baker to reflect upon her recollection of what the plaintiff had told her in the early hours of 17 January 2017. As it was, she did not have the need to do so.
Although Ms Baker accepted that, generally, memories fade, and that for that reason it is helpful to have notes recording important events, she maintained that her recollection of what she was told by the plaintiff was clear. It is unsurprising that the account of what she was told left a distinctive impression on her mind, given that, to her knowledge, there were no other injuries caused by someone falling on a gap on the platform's edge. Indeed, it was this incident which prompted her to address a hazard she had long been aware of. Her evidence at trial, both in her verbatim account of what the plaintiff told her and in the demonstration, was clear. In contrast, the plaintiff gave no verbatim evidence of the account he supplied to Ms Baker as to how the incident occurred and no explanation was supplied why he could not do so. In my view, it is appropriate to draw a Ferrcom inference [3] against the plaintiff that such evidence as he might have given in that regard would not have assisted him.
Further, although the evidence of the Ms Baker suggests that Mr Fadda was present during the demonstration on the platform, after the incident, no evidence was led from Mr Fadda as to what he heard the plaintiff say to Ms Baker. Despite the evidence of the plaintiff and Mr Fadda, I consider that it is more likely than not that Mr Fadda was in attendance at the demonstration. He was working on the same platform as the plaintiff at the time of the latter's fall (and hence was in position to rescue him); the plaintiff had informed Ms Baker, in effect, that he was a witness and the purpose of the demonstration was to aid Ms Baker in her investigation as to how the incident occurred. It made sense for all concerned for Mr Fadda to be there.
I am not, however, inclined to draw a Ferrcom inference in relation to the absence of an account given by Mr Fadda as to what he told Ms Baker as the omission to give evidence may be explicable to his not hearing such account. To recall, Ms Baker said he was in a carriage during the demonstration. In other words, I do not infer that Mr Fadda could necessarily shed light on what the plaintiff reported to Ms Baker.
Further, in relation to Mr Fadda's evidence, I do not place much weight on his undated typed statement (Exhibit A, p 131). It bears the hallmarks of being compiled with a consciousness of litigation, rather than the account of a disinterested observer. Because it is undated, it cannot be said to be contemporaneous. Further, his brief handwritten statement (Exhibit A, p 425) was also prepared with the consciousness that it would be used to advance the plaintiff's cause.
There is no reason or motive ascribed to Ms Baker for giving a false account of what the plaintiff reported to her. She was his supervisor (at least in the sense that the plaintiff described it for the purpose of the safety incident report form). She evidently showed concern for his welfare. At the time that he reported the incident to her, in the early hours of the morning, he was in pain, but he still had a significant part of his work shift to perform. The circumstances were such that he would likely have wanted to give her a truthful account of how the incident occurred in such circumstances.
It is self-evident from what I have said, and contrary to the plaintiff's submission, that I do not ascribe much weight to the circumstance that Ms Baker was unable to retrieve and produce the single page note in which she said she recorded her observations and recollections of what the plaintiff told her. It was not suggested, and I do not infer, that her inability to retrieve the note was explicable for any sinister reason to do with advancing the defendant's position. It is also implicit in what I have just said that I reject the submission that Ms Baker did not in fact make the note (even though she could not find it) at all. I accept her evidence that the contents of that note informed the content of the email that she sent to Mr Mahamed Ali on 19 January 2017.
It is also self-evident from what I have said that I reject the suggestion that a Jones v Dunkel inference might be drawn from the defendant's decision not to call other persons, such as Josh Cawston or Nohad Kanawati, to corroborate Ms Baker's evidence that she reported the report that she received from the plaintiff. I do not regard that as being necessary at all. Ms Baker plainly did not see the incident herself. She acted on the basis of what she recalled she was told. She went further and sent an email to Mahamed Ali on 19 January 2017 which substantially recorded what she had been told two days before. Further, a condition for a Jones v Dunkel inference to be drawn is that there are facts that 'require' an answer [4] . Here, as I have said, the plaintiff did not give evidence giving a verbatim description of how he fell to Ms Baker. There was, in other words, no alternative version to the conversation as recounted by Ms Baker.
Secondly, I consider that the physical evidence supported the defendant's version. The size of the plaintiff's left boot was large enough to almost surpass the length and width of the gap in the edge of the platform if, as the plaintiff said, he was walking on the platform alongside or parallel to the train (Exhibit 4). Put another way, even if he had inadvertently stepped on the precise place where there was a gap, in the course of walking along the platform, it was unlikely that this would have meant that his boot would get 'caught' in the gap and thereby caused him to lose his balance and fall. In my view, if he was walking along the platform, the most likely reason for him to stumble from contacting the hole was if only the front part of the boot (i.e. the toe of the boot) was inserted into the hole. But the plaintiff did not, for example say that, at the point he was walking alongside the train on the platform, on the yellow line, he 'stubbed' the toe of the boot in a way that meant that only the front part of his boot fell into the gap on the edge of the platform.
Conversely, if, as Ms Baker's report of what she was told was correct, it seems to me quite plausible that in the process of moving backwards out of the train, the toe of the plaintiff's left boot - not the whole of the boot - might be inserted into the gap on the edge of the platform. If that occurred, then unless the plaintiff was holding on to something affixed to the train carriage - such as a pole - conceivably he might lose his balance, and move forward (facing the train) and thereafter some part of his body might fall in between the train and the platform.
I also consider that if the toe end of his left boot went into the gap, as he was walking alongside the train, it is more likely that the his body would propel in a predominantly forward direction, further along the platform, rather than in the direction of his left side, towards the train. This is not to suggest some rigid dichotomy. To the extent that he was propelled in a predominantly forward direction, but also partly to his left side, I would be surprised if he did not fall into the door and into the carriage or, if the door was closed, would have expected that he would be able to lean against the train to recover his balance. Notwithstanding that it was possible for part of his body to fall in the space between the train and the platform, I consider that this was unlikely to have happened if, as the plaintiff said, he stepped on the hole in the course of walking forward along the platform.
Thirdly, and related to the first and second points, it is very unlikely that the plaintiff would have walked in a way that, save for his action in stepping into, or out of, the train itself, would have involved his placing his left foot on the (faded) yellow line. He knew the yellow line was there; even if it was relatively faded compared to other parts of the line. Without any training at all (which he apparently had), I infer that he would have intuited or appreciated that users of the platform, when walking along the platform, were not to place their feet on the yellow lines that appeared on both sides of the platform. One reason for that would be that, at least at a certain point, trains would be moving in and out of the track. Of course, at the time of the incident, the train was stationary, but I cannot conceive that it would be good practice in the cleaners to traverse the yellow lines for any reason other than to move in and out of the train carriages. Common sense would suggest as much. At any rate, I seriously doubt that the plaintiff would knowingly have chosen to walk on or about the line. I agree with the defendant's submission that to do so would quite likely have seen the left side of the body touch, or close to touching the carriage of the train. That is not, as Mr Strautins, the defendant's expert, indicated, a very normal pattern of walking.
The plaintiff gave no explanation as to how he came to place his left foot on the line. Although it was suggested to Ms Baker under cross-examination that cleaners who used the platform might be distracted (perhaps in thinking of the work to be done) or were in a hurry, the plaintiff at no stage sought to avail himself of such explanation for putting his left foot on the yellow line.
Fourthly, following on from the third point, although the plaintiff was employed by a contractor, the evidence of Ms Baker was to the effect that cleaners were informed about the presence of gaps (T158). If that was so, a cleaner walking along the platform would likely have exercised greater vigilance in where they stepped and would likely have tried to steer clear of putting a foot or feet on the yellow line. This is not to say that a cleaner would, at all times, have looked down, but in my view, it would have meant greater consciousness of where the user's feet were at any one time.
For these reasons, the plaintiff's account of how the incident occurred is rejected. The plaintiff's Counsel accepted that his client's success hinged upon the Court's acceptance of his version of how the fall occurred. His claim therefore fails.
However, in case I am wrong on this issue, I will address the balance of the myriad other issues raised by the parties on the premise that the incident occurred as the plaintiff said it did.

[13]

Mr Strautins' report

Mr Strautins is an occupational hygienist & materials scientist. He is the Managing Director of Safe Environments Pty Ltd and oversees testing and provides specialist advice in occupational hygiene and building compliance, including slip resistance.
He is currently the Chair of Standards Australia Committee BD-094 and led the drafting for AS 4586-2013.
Mr Strautins prepared a report dated 30 April 2020 in response to Dr Cooke's report. This followed an inspection of the site on 27 April 2020.
Mr Strautins agreed with Dr Cooke's measurements of distances which I have referred to.
Mr Strautins considered that it was more probable than not that if the plaintiff walked alongside the train, he lost balance and fell by inadvertently stepping on to the edge of the platform nosing. He reasoned that given the size of the plaintiff's boot, for the hazard (i.e. the hole on the edge) to present a significant risk, a person's foot would need to interact with it and that would require the person to walk perilously close to the platform edge, with little margin for error. From his own experience in walking along the platform, Mr Strautins felt that when walking close to a train and platform edge, there was significant discomfort for fear of misplacing this foot and his gait reduced significantly in order to prevent this.
Aside from the (admittedly) faded yellow line, the train itself would have served to provide spatial awareness for someone walking down the platform. Mr Strautins appeared to accept that it would not be expected that a person walking down the platform would not constantly be looking down at the nosing, being the platform edge, although it would be expected that there would be some intermittent focus.
Mr Strautins did not opine upon the adequacy of the yellow paint save to reiterate that there were sufficient visual cues for the plaintiff to be spatially aware of how close he was to the edge.
Mr Strautins considered that Dr Cooke had not considered the interaction between the plaintiff's footwear and the gap and how it would have caused the slip. He considered that the gap between a train and the platform edge was always present and a fall may occur from the improper placement of a foot on the placement edge. That being so, the hole on the edge had no meaningful influence on the likely fall.

[16]

Breach of duty

Consideration of the Breach Issue proceeds in accordance with the principles laid out in ss 5B and 5C of the Civil Liability Act 2002 (NSW). Cardinal to the application of those principles is the identification of the relevant 'risk of harm'.
The plaintiff identified the risk of harm as simply the risk that the plaintiff might fall. The defendant made no submission about identifying the risk.
In my view, the risk of harm, on the stated premise (i.e. the incident occurring as the plaintiff said it did) is that of a platform user (such as a cleaner) suffering a physical injury after stumbling upon the gap on the platform edge. A more specific way of describing the risk is that a platform user might, after contact with the hole, fall on the ground and possibly fall within the space between the train and the platform.
I also find that the risk of a platform user stepping on the hole was foreseeable. That is, of course, a relatively undemanding test. The more difficult question is whether such risk was not insignificant. Whilst I accept Mr Strautins' evidence that platform users would have to get very close to the train to be in a position to have stepped on the hole, and that the position of the train, in situ, might ordinarily deter a platform user from getting close to the train, nevertheless, there may have been a variety of reasons why the platform user might have inadvertently placed his or her foot in the gap. Among them is the reason which Mr Strautins himself provided - that the platform user lost his or her balance. I accept the plaintiff's submission that the defendant was obliged to factor in, in its risk assessment, the possibility that a platform user might, through inattention or inadvertence, step onto the yellow line and put himself or herself in the position to step on to the gap. Further, in my view, the presence of the yellow line itself suggests that the occupier is aware of the risk that platform users might, along what was a fairly narrow platform, place a foot on the platform's edge: that is why the line was painted in luminescent yellow. I also consider that the hazard was less apparent than would ordinarily have been the case if the yellow painted line was more illuminated than it was. This possibility was in my view, exacerbated during the evening. One of the photographs (Exhibit A, p 423; cf p 415) showed that the hole was quite distinct when viewed in the context of a bright line. Moreover, the circumstance that the yellow line was repainted shortly after the incident is an admission that the more that the line was illuminated the more likely that the hole would have been evident to a platform user. Accordingly, I find that the risk was not insignificant.
Having considered both expert reports, I generally prefer the view of Mr Strautins on the basis of his considering the interaction between foot movement and the gap on the edge of the platform. However, I accept Dr Cooke's evidence that the gap at the edge represented a hazard of which the defendant was aware, based upon what Ms Baker said. Further, I accept Dr Cooke's evidence, which was not contradicted by Mr Strautins on this point, that the cost of rectifying the problem was insignificant.
There was no evidence from the defendant, which was peculiarly placed to give relevant evidence, as to why it was necessary for there to be multiple gaps such as the one that the plaintiff fell on; such as there needing to be a space to assist with the cleaning. This evidentiary vacuum does not assist the defendant.
In my opinion, a reasonable person in the defendant's position would have taken precautions to have filled the hole. As I have noted, Ms Baker had reported the existence of the hole and asked that it be rectified. She did so because of her apprehension that a platform user might step on it. She recognised that it was "dangerous". To that extent, if it was not filled, the defendant might be taken to have known for itself that harm might be caused to a platform user if the hole was not filled. Given the proximity of the hole on the edge to the gap between the train and the platform edge, a person would likely suffer substantial injury if, as a result of placing a foot in the hole on the platform edge, he or she lost balance such that part of the person's body slid through the gap between train and platform. It was not suggested that the burden or cost of filling the gap was onerous to the defendant; or that it was impractical to the cleaning operations for the gap to be filled.
Had I accepted the plaintiff's version of how the incident occurred, I would have found that the defendant was negligent.

[17]

Plaintiff's evidence

At least by 2:30am in the morning after the incident the night before at 9:30pm, the plaintiff was feeling pain in his left knee. He gave evidence that a few days after, he began to feel pain in his right knee; although he said that at the time of the incident, his right knee did not twist. It was suggested that, inconsistently, he had later told Dr Rahme (a knee specialist) that both knees had twisted during the course of the incident. The plaintiff disputed this.
He said that about a month later, he noticed pain in his left elbow. A few months later, he experienced back pain.
He said he had not experienced difficulties with either of his knees before the date of the incident. Under cross-examination, it was suggested that he had previously told Dr Malek, in early 2015, that he had problems with both knees, with it feeling worse on his right side. The plaintiff disputed this.
He has since seen his family general practitioner, Dr Malek on numerous occasions and he has tried to implement his recommendations. He also has received physiotherapy from Su Min Oh, on numerous occasions.
Dr Malek referred the plaintiff to see Dr Rahme, a knee specialist. Dr Rahme in turn referred the plaintiff to Dr Bassam Moses to receive multiple injections to his left knee. Those injections were not enduringly successful. He has had two arthroscopies to his left knee, in May 2017 and December 2018.
In terms of his current symptoms, it was the plaintiff's knees that are causing on-going problems. He feels clicking and locking of both his knees. The frequency is much greater in the left knee than the right knee. Sometimes, he said, his left knee simply gives way. The problem with the left elbow had gone away, but the problem associated with his back had not.
The plaintiff also referred to his back as periodically causing issues. He said that he gradually noticed problems with his back a few months after the injury. However, in cross-examination, it was suggested that he had only told Dr Malek about it in December 2017 and that this had occurred in a context where he felt pain in the back after leaving the bathroom. It was also suggested that he had told Justyn Andrew, a rehabilitation consultant, in 2018 that his back complaint arose from his getting out of bed. The plaintiff rejected these propositions. He maintained that his back problems 'progressed' slowly throughout 2018. However, when he visited Bankstown Hospital complaining of chest pain in May 2019, he was asked whether he experienced back pain and he indicated that he had not.
It was put to the plaintiff that when he saw Dr Chartwell (the plaintiff's orthopaedic surgeon) and Mr Andrew in 2018, he was not trying as hard as he possibly could when undergoing the exercises. It was suggested that it was unnecessary for the plaintiff to see Dr Malek on the many (up to 50) times that he had seen him. His level of restriction was not as great as he had made out. The plaintiff rejected these propositions.

[20]

Radiological investigations

Since the date of the accident, the plaintiff has undergone significant radiological investigations. On 19 January 2017, an ultrasound of the left knee revealed fluid extending from the medial joint deep to the left tibial end of the left medial ligament. It was thought that this showed a meniscal injury. The next day, an MRI demonstrated a complex tear of the posterior horn of the medial meniscus extending into the inferior surface. There was also a trace of joint effusion. However, the cruciate and collateral ligaments were intact.
On 24 January 2017, an ultrasound was taken of the plaintiff's right knee. It showed no significant effusion. The medial and lateral components were normal. On 30 January 2017, an MRI was taken of the plaintiff's right knee. There was linear intrinsic horizontal high signal within the anterior and posterior horns of the medial meniscus. Dr Mbakada considered that this was likely to represent mucoid degenerative change, rather than tears. The lateral meniscus was intact. Within the patellofemoral joint, the patellar and trochlear cartilage was preserved. Otherwise, the results were unremarkable.
By 8 March 2018, a further MRI of the left knee revealed an undisplaced oblique tear of the posterior horn of medial meniscus extending into inferior surface, mild joint effusion and possible soft tissue contusion. The same conclusions were reached after further MRIs of the left knee were performed on 3 and 30 August 2018. On 17 December 2018 Dr Rahme performed a second arthroscopy and found degenerative change in the medial femoral condyle with loose chondral flaps which were debrided. There were no abnormalities other than synovitis.
An ultrasound of the left knee carried out on 23 November 2019 indicated minimal knee joint effusion at the pre-patellar recess, with minimal 5ml of joint fluid.
The most recent MRI of the left knee performed on 14 February 2020 demonstrated oblique peripheral meniscal tear posterior junction body and posterior horn of medial meniscus; with a tear to contact the inferior articular surface. There was full thickness chondral loss in the mid third of the medial femoral condyle 5mm.
A CT of the plaintiff's lumbar spine undertaken on 7 December 2017 demonstrated minimal disc bulge at the L4/5, which was not associated with any nerve root impingement. Some mild facet joint degenerative change was located at L3/4, L4/5 and L5/S1.
A whole body scan of 16 March 2018 indicated mild inflammation of lumbar facet joints at T12/L1 and L1/L2.
An MRI of the plaintiff's back indicated that by 6 September 2019, there was minimal bulging of the disc at L5/S1. But the balance of the investigation was unremarkable. There was no discogenic abnormality or evidence of nerve root encroachment. Nor was there any morphological abnormality found to explain the plaintiff's described symptoms of sharp pain shooting down his right leg.
An MRI of the plaintiff's left knee carried out on 27 November 2019 was noted by Dr Hazan to have been carried out in the context of his having had a recent injury to exacerbate pain, instability and swelling of the knee joint. There was no significant cortical fracture. There was trabecular fracture posterior subchondral tibia about the proximal tibiofibular joint.
The radiological investigations were interpreted by the defendant's firm, 'Earning Capacity Assessments' as revealing a tear of the posterior horn of the meniscal cartilage affecting the left knee joint; and degenerative changes in the right knee joint; but no evidence of any other significant injury.

[23]

Defendant's evidence

The defendant relied upon a report from Associate Professor Shatwell, an orthopaedic surgeon. Professor Shatwell examined the plaintiff on 13 December 2019. Amongst other things, Professor Shatwell noted that the plaintiff had only recently fallen on and re-injured his left knee.
Professor Shatwell observed inconsistencies in the range of movement of the knees during the examination and no clear evidence of restricted motion in either knee. He doubted whether a fall of the kind that was reported would have caused a meniscal tear to the left knee. He regarded the plaintiff as being an unreliable witness noting that the limitations on formal examination were inconsistent with signs observed during the informal parts of the examination. He considered that the fall caused a minor contusion to the left knee which should have settled within 3 months at most. The plaintiff's ongoing symptoms could not be explained on an organic basis.
By contrast, the firm that prepared the defendant's Earning Capacity Assessments had found, during an assessment of the plaintiff on 10 December 2019, that the plaintiff presented his history in a straightforward fashion and that his responses during physical examination were consistent and reasonable. The report noted testing and measurements which indicated a normal extension of the right knee, albeit with a 25 degree loss of normal flexion; and normal extension of the left knee, but reduced flexion by 30 degrees at 110 degrees, together with crepitus during movement; indicating underlying degenerative change. The report concluded that he continued to have pain and reduced movement in his left knee and that following the two arthroscopic procedures he had significant degenerative changes in his knee joint and a meniscal cartilage tear. It was found that the pain he had in his right knee was associated with underlying degenerative change. The lower back pain developed after he stopped working and the radiological evidence suggested long-standing mild degenerative change in the lower back.
Professor Shatwell considered that his limited lumbar spinal movements were unreliable.
Generally, Professor Shatwell concluded that he had suffered a minor injury to the plaintiff's left knee which had not been of such severity as to preclude the plaintiff from continuing on with his working shift for a further 5 hours. He noted that the plaintiff had reported knee pain back in February 2015 for no particular reason.

[25]

Consideration

The plaintiff bears the onus of proving that his injuries are attributable to the fall occasioned by the defendant's negligence: s 5E of the Civil Liability Act. The issue is primarily one of proof of factual causation.
I confess to finding it difficult to understand the defendant's submission, on the stated premise (acceptance of the plaintiff's account of how he fell), that the presence of the hole, or notch, on the platform cannot be treated as a necessary condition of the subsequent harm that befell the plaintiff. Contrary to what the defendant submitted, the plaintiff's case was not that he slipped on the platform, without the hole/notch, but that the contact of the plaintiff's left foot on that hole/notch, which had been left there because of the defendant's negligence, played a role in causing him to lose his balance and fall. That, in my view, suffices to establish the 'but for' test required to make out factual causation [7] . I note that no submission was made by the defendant that the 'scope of liability' requirement (s 5D(1)(b) of the Civil Liability Act) was not made out.
In my opinion, the real issue is the extent to which the plaintiff's fall, caused by the defendant's negligence, resulted in the injuries and disabilities of which the plaintiff complains.
I find that the plaintiff suffered an injury to his left knee as a result of his fall.
I also find that the plaintiff's degenerative issues in his right knee were rendered symptomatic as a result of the fall and, to that extent, caused by it. I am mindful of Dr Conrad's WPI assessment of the right knee in this regard, the proximity in which the concern about the plaintiff's knee became apparent to the date of the incident and the absence of other explanation for the plaintiff's issues with his right knee.
I also consider that it is more probable than not that he sustained a minor injury to his left elbow as a result of the incident. An ultrasound scan was performed on 22 February 2017, about a month after the fall, showed tendonophony of the biceps tendon. There was no suggestion that the pain derived from any other source. However, that injury resolved itself over the next 4 months.
I am not persuaded that the plaintiff has suffered any back injury as a result of the accident. His back complaint emerged many months, in December 2017, after the fall and was attributable to matters arising domestically, whilst he was at home. The evidence from the plaintiff ascribing his back pain to his gait or posture is subjective and not supported by medicine. I find that the plaintiff's back complaint is attributable to degenerative change aggravated by other causes and am not persuaded that it was caused by the subject incident.

[29]

Past OPs

The plaintiff's estimate represented the sum paid by the workers' compensation insurer. With some exceptions, these all concerned the treatment of the plaintiff's left knee. I was informed that the workers' compensation insurer had not accepted any liability for expenses in relation to the plaintiff's right knee.
The plaintiff submitted that the defendant's Counsel did not put that the past medical, hospital and rehabilitation expenses were inappropriately incurred. His Counsel did, however, accept that it was "puzzling" that the plaintiff had attended on Dr Malek on so many occasions; particularly where Dr Malek did not prepare any general report that explained the necessity for him to do so.
The plaintiff submitted that the defendant's Counsel did not challenge the plaintiff's evidence that he acted in accordance with the medical advice he received. The plaintiff said that the vast preponderance of the costs claimed (and paid for by the workers' compensation insurer) concerned his left knee; and that there was no serious dispute that the plaintiff had sustained an injury to his left knee (including a meniscal tear) as a result of his fall.
The defendant submitted that no recognition should be given at all to the circumstance that the workers compensation insurer had paid for the plaintiff's expenses associated with the plaintiff's left knee. Further, it submitted, the plaintiff has been over-serviced by his practitioners. It concedes an entitlement to no more than $15,000.
The Court's obligation in the assessment of damage is to do its best in the light of the evidence presented to the Court. That is not to say that it will make an arbitrary award, but where there is evidence that the workers' compensation insurer has paid out expenses for a certain kind of injury, that provides a rational basis, or perhaps starting point, for the Court to proceed.
In my opinion, the plaintiff should recover an allowance in respect to investigations and treatment (including physiotherapy) concerning his left knee up to the date when he had his second arthroscopy, which was in December 2018, and a reasonable period of time thereafter. The medical evidence suggests, however, that the left knee was not an ongoing concern until the plaintiff took a tumble in November 2019, for reasons not related to the subject accident.
I agree with the defendant's submission that, in the absence of well-founded medical , to accede to the plaintiff's estimate of expenses being in the order of $85,000 in relation only to his left knee is prima facie extravagant, or exorbitant; even allowing for the two arthroscopies; and that more would be required to justify an award of that magnitude.
However, the plaintiff did not indicate what, if any, expenses were incurred in relation to investigations and treatment of the right knee which, as I have found, was injured as a result of the accident. Some allowance should be made for that.
I would allow an allowance of $40,000 for this head of damage.

[30]

Future OPs

Associate Professor Shatwell did not consider that there was any indication for any further surgical treatment of the plaintiff's knees. Such symptoms as he had could be managed with physiotherapy and intermittent anti-inflammatories. The report prepared by Earning Capacity Assessments supported this.
Doctor Conrad agreed with Dr Rahme that due to ongoing pain and disability in his right knee, the plaintiff required an arthroscopy. Dr Porteous also considered that the cause of the plaintiff's on-going right knee pain was unclear and indicated the need for a diagnostic arthroscopy to clarify treatment.
Doctors Conrad and Porteous agreed that the costs of an arthroscopy on his right knee might extend up to $10,000, following which he would need physiotherapy. Dr Porteous thought that the cost of the physio rehabilitation would be $1,200.
Dr Conrad's report assessed that the costs of the plaintiff's ongoing conservative treatment was about $2,500 per year.
The plaintiff submitted that Doctors Rahme, Conrad and Porteous all support a requirement for the plaintiff to undergo an arthroscopy to his right knee. Nevertheless, during oral address, the plaintiff's Counsel acknowledged, properly in my opinion, that the Court might find that the plaintiff could cope with his new job, and may doubt whether the plaintiff might seek to disrupt his fledgling employment with undertaking a procedure which may put him out of action for a significant period of time. In this regard, I note the evidence that the plaintiff had not yet disclosed to his new employer the subject accident or its effects upon him.
It was submitted that following an arthroscopy, he requires physiotherapy and intermittent pain relief and on-going functional assessment by vocationally trained occupational therapists.
The defendant submitted the Court could not accept the plaintiff's reports of pain and restrictions in his right knee, so the claimed cost of a further arthroscopy was insupportable. In its schedule of damages, its position is that only a small buffer award should be made for this head of damage.
Whether or not the plaintiff actually requires an arthroscopy on his right knee, which is highly contentious, in my view, it is not demonstrated that the plaintiff would wish to undertake it. He has just commenced recent employment, which is not impeded by restriction in his right knee, and has not disclosed to his new employer the incident he was previously involved in. I consider it unlikely that the plaintiff would want to jeopardise his new found employment on account of having to take time off work to recuperate. Accordingly, I make no allowance for the cost of an arthroscopy on his right knee.
Having regard to the findings I have made on the cause of the injuries, I accept that it is more likely than not that the plaintiff may require conservative treatment, including physiotherapy. Having regard to the plaintiff's relatively young age, however, I would allow a larger buffer than suggested by the defendant.
I would have allowed the plaintiff the sum of $15,000.

[31]

Past loss of earning capacity

Prior to the subject incident, the plaintiff had worked in the field of security, with the police credit union and later the Rosehill racecourse. He had also worked in a charcoal chicken store. Between 2011 and 2015, the plaintiff was unemployed.
At the time of the accident, the plaintiff was working for Cleantech earning approximately $850 per week (net). No tax returns were in evidence. He was intending to continue with that job. In his statement of particulars, the plaintiff said that he has been unable to work. He has difficulty remaining on his feet whilst lifting and bending. He says that he would have worked up until the age of 70.
A bundle of WorkCover NSW certificates of capacity covering the period 17 January 2017 to 17 June 2020 was in evidence (Exhibit B). The defendant's Counsel referred me to three of them, being certificates of 25 January 2018, 21 February 2018 and a date in March 2018 (Exhibit 5, pp 13-15, 49-51 and 52-53). The former indicated a capacity in the plaintiff to work for some type of employment from 29 January 2018 for 8 hours a day 5 days a week. The latter showed a capacity to work for some type of employment of the same magnitude from 29 February 2018.
The defendant also relied upon a functional capacity assessment report prepared by Ms Wendy Kurta, on behalf of the workers' compensation insurer. The content of that report was explained to the plaintiff. The report canvassed alternative forms of employment, being either a security officer, pathology courier or product assembler.
At trial, the plaintiff said that he obtained work only a week before the trial commenced as a courier for a firm, 'Avanquish', which provided a driving courier service to the pharmaceutical company, Cigma Australia. After a 2-day trial from the previous week, last week he commenced driving a van to Kemps Creek to collect boxes (of relatively light weight) of pharmaceuticals and driving them to chemists in the region of Parramatta and Carlingford. If, as he intends, he continues in that role, he expects to be paid $800 (net) each fortnight. The plaintiff said that Avanquish had not been made aware of the injuries to his knees.
The plaintiff contrasted his capacity to do this work with what he described was his incapacity to do the sort of work he was doing at Sydney Trains. He was unable to continue in his former workplace role because of the bending and squatting and occasional climbing (upon steps) that he required.
Dr Conrad considers that the plaintiff is unable to do heavy work as a cleaner. He is, Dr Conrad thought, able to work for between 12 to 15 hours a week, engaging in light cleaning work where he does not have to do a lot of standing, lifting, walking up and down stairs (or ladders), squatting, kneeling or working at heights. He is restricted in his lifting limit to 5kg of weight.
Dr Porteous' views are relevantly similar as to his physical restrictions but his prognosis is more pessimistic: the nature of the work of a cleaner involves significant crouching and kneeling. The plaintiff's knee and back pain restricts him in this regard. This impaired the plaintiff's capacity to compete on the open market in comparison with more 'able bodied' persons for jobs. He anticipated that he might have periods without work in the medium term.
By contrast, Associate Professor Shatwell considered that the plaintiff could continue with his pre-injury work if he wished to do so. There was no present incapacity. The changes in his back were common for a man of his age and build.
A functional capacity assessment report prepared by Justyn Andrew dated 16 February 2018 alluded to 'self-limiting behaviour'.
The plaintiff did not consider that role in security, or something like charcoal chickens, was possible. He said he has trouble standing for long periods in the case of the former and was concerned about his lifting capacity for the latter.
The plaintiff's estimate as to the quantum for this head of damage was based upon the past workers compensation payments had been received.

[39]

Consideration

Section 13 of the Civil Liability Act applies to damages for future economic loss. Section 13(2) requires an approach that is consistent with the approach of the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. That approach ordinarily involves: (a) calculating the percentage possibility of a future event occurring, but for the negligently inflicted injury, and then (b) adjusting the award of damages according to that calculation: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[137].
The plaintiff left school at year 11. His employment history up to the time of the accident was labouring in nature and involved physical exertion. Although he has indicated aspirations to get into real estate, his past employment history provides no guide for confidence or assurance that he may succeed in that endeavour.
In my view, the accident involving his left knee has impaired his capacity to engage in labouring in the future. Whether or not there are other forms of employment, which do not involve prolonged standing or squatting, are available, I would have found that the negligence in causing the injury to the left knee has reduced the plaintiff's capacity to compete and therefore earn in the market for labour in which his work history to date predominantly lies.
It is difficult to say for how long the plaintiff would have continued to act as a cleaner, but for the accident. That is influenced by the evidence of degenerative issues in the plaintiff's back and right knee, which, I find, would have eventually impinged upon or impeded the plaintiff's capacity to continue to work as a cleaner. It is probable that by middle-age, his continued capacity to engage in that strenuous physical work would be removed; thereby forcing him to engage in the sort of sedentary occupations recently suggested by Earning Capacity Assessment. Current indications are that he will earn less through these occupations that he would if he was capable of continuing as a cleaner.
Instead of comparing the earnings that he may earn if he adopts the more sedentary work alternatives identified by Earning Capacity Assessment with the types of labour the plaintiff had hitherto engaged in, I consider it most expedient to allow a buffer: Penrith City Council v Parks [2004] NSWCA 201 at [5], [58].
In awarding a buffer sum, the percentage adjustment for the purposes of s 13(2) of the Civil Liability Act is nil.
I would have allowed a buffer sum of $40,000.

[42]

THE CONTRIBUTORY NEGLIGENCE ISSUE

The question here is whether the plaintiff showed that degree of care for his own safety that a reasonable person would have shown (Joslyn v Berryman (2013) 214 CLR 552). Sections 5R and 5S of the Civil Liability Act provide for limited modification of the common law principles.
The defendant submitted that there was ample room for the plaintiff to walk along the platform safely. He had been along this platform previously. A reasonable person would have seen the gap. For the plaintiff to have trodden on it must have meant that he failed to keep a proper lookout. The plaintiff's responsibility for the injuries caused by his neglect was at least 50%.
In my view, a reasonable person in the plaintiff's position and circumstances would not have ventured so close to the (faded) yellow line as this plaintiff did so as to put himself or herself in the position to have his or her left foot come into contact with the hole in the edge of the platform. In this regard, I do not accept that the reasonable person would have been on the lookout for a hole on the edge of the platform. It was not suggested to the plaintiff, for example, that he was aware of other holes along this platform's edge, or, indeed, holes on the edge of other platforms within the premises.
But the closer that a user of the platform came to the edge of the platform, the greater the risk that, for reasons which were foreseeable or even unforeseeable, the user's foot or feet might fall between the gap of the platform and the train. One obvious illustration, removed from the facts of this case, might have been if one of the cleaners had, as a result of his or her works, allowed a greasy substance to appear close to or on the edge of the yellow line. The yellow line itself acts as what Dr Cooke called a 'visual cue'; effectively warning platform users to position their bodies outside of the line. I agree, also, with Mr Strautins, that the stationary train would be expected to have been a cue to assist a platform user's spatial awareness.
As I noted earlier in the section dealing with how the accident occurred, the plaintiff could not offer any explanation for how, in the course of walking along an admittedly narrow platform, his left foot came into contact with the hole on the yellow line. He did not, for example, say that he overbalanced because of carrying equipment on his person, or that he brushed another person causing him to stumble nearer the yellow line. There was nothing to suggest his left foot was placed there because of reasons beyond his control.
I find that his left foot touched the hole on the platform edge as a result of the plaintiff walking too closely on the platform alongside the stationary train. Although the width of the platform was not wide - it was less than a metre - the reasonable person in this plaintiff's position - who was not carrying anything at the time - had sufficient space to walk comfortably enough on the platform without having his or her left foot touching the (faded) yellow line and therefore the gap on the platform edge.
As I also intimated previously, the plaintiff was no stranger to these premises. He not only knew of the yellow line, but also knew that because of the hosing of (at least) the external parts of trains, there were taps around. That said, it was not put to him and it would not be fair to find that he knew of the gap at this or other locations on the platform edge.
In my view, the defence is made out. Taking into account considerations of culpability and causal contribution to the incident, on the stated premise, I would have assessed the plaintiff's contributory negligence at the level of 40%.
Had the plaintiff succeeded in his case on liability, this would have meant that the quantum on his judgment, after the reduction for contributory negligence, would have been $112,662.

[47]

Consideration

I do not ascribe significant weight to the content of the contract between the defendant and Cleantech. The defendant could not divest itself of its direct responsibility to users of the platform to take reasonable care to remove hazards on its premises by outsourcing occupational health and safety obligations to contractors. I do not understand the defendant's position that it did seek to divest itself of responsibility. To adopt such position would be inconsistent with Ms Baker's evidence, for example, that cleaners received explanations and were shown around by persons acting on behalf of the defendant (T158). The defendant was effectively a "quasi-employer" [10] .
Relevant also in this context, in my view, is the disparity in resources between the defendant, a statutory corporation, and the employer and the former's greater responsibility for the removal of hazards on its property. Also relevant, in my view, was the defendant's actual awareness of the gaps on the platform edge prior to the accident and its refusal to even rectify the hazard, by closing the gap, since the accident occurred in the face of a request by (at least) Ms Baker. It seems to me that even if the gap upon which the plaintiff fell had been brought to the defendant's attention through the putative risk assessment that the defendant says that Cleantech should have undertaken, it is not possible to say that rectification would have been taken in any event. It was the defendant, not Cleantech, who had the exclusive power and capacity to rectify and remove such hazards.
Nevertheless, on the evidence before the Court, I accept that it would reasonably have been expected that the presence of a gap or gaps on the edge of a platform constituted a hazard which was likely to have been apparent to Cleantech had it engaged in a thorough risk assessment of the work premises including, relevantly, the platforms upon which its workers would work. The employer's responsibility was non-delegable. The defendant has done what it reasonably could by issuing court process in order to establish what documented assessments were made. A prima facie inference arose through the failure to produce any such assessments that none were performed. In my view, an evidentiary onus fell upon the plaintiff, who has the relevant interest (in resisting any s 151Z reduction) to show that a risk assessment was performed, even informally, and no explanation was given why it could not call evidence to suggest that it was. As previously indicated, the risk of a platform user's foot coming into contact with that gap arose not simply from a platform user walking along the platform (the plaintiff's version) but also in stepping off a carriage of the train (the defendant's version). I accept, also, on the basis of Ms Baker's evidence, that the hazard was not fleeting, but of a long-standing duration which would be expected to be identified. Accepting that this is so, however, it remains the case that any failure by the employer to identify the hazard is only proven to be constructive. In view of the evidence of Ms Baker, which, having regard to her position as a supervisor, may be imputed to the defendant, so that the defendant's actually was aware of the hazard. At any rate, the level of culpability in relation to the defendant was substantially greater than the employer.
To reiterate, subject to any reduction because of s 151Z, and after factored in a reduction for contributory negligence, the plaintiff would have been entitled to receive $112,662.
In accordance with the method of calculation set out in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd & Anor; Brimac Pty Ltd v Johnston & Anor (2005) 4 DDCR 179 at [74], I assess the proportion of the contribution that the defendant would be entitled to recover from Cleantech being 15%. The amount of that contribution is $16,899.30.
The amount that the plaintiff would have recovered from the defendant, after the reduction under s 151Z(2), is $95,762.70.
Because of the reasons I have given there is no occasion for any repayment of the kind envisaged by s 151Z(1)(b) of the WC Act.

El Hallak v Sydney Trains

At a glance

Court

Decision date

Source

Judgment (49 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)