Tasevska v Metro Trains Melbourne Pty Ltd

1. If yes to question 1, in what amount do you assess the plaintiff's damages for pain and suffering, loss of enjoyment of life?

1. If yes to question 1, was there negligence on the part of the plaintiff which was a cause of her injury, loss and damage?

1. Following the jury's verdict, Metro Trains moved for judgment notwithstanding the jury's verdict on Question 1.
2. Mrs Tasevska opposed the motion.

1. Relevant to liability, Mrs Tasevska gave evidence and was cross-examined. Metro Trains did not call any witnesses to give oral evidence.
2. Mrs Tasevska worked at the station from 2004. Her shifts were either 4.30am to 12.30pm, or 4.50pm to 12.55am. Mrs Tasevska said she did not have breaks. Generally, only one station officer was rostered for a shift at the station.
3. Protective Services Officers were present at the station from about 6.00pm. Authorised Officers attended when replacement buses were in operation, and to check Myki cards in the mornings and afternoons.
4. The station has three platforms. Mrs Tasevska said it was a very busy station. There were frequently issues with the lifts breaking down; passengers "under the influence";[1] ill passengers on the platform or on a train; a need to deliver "CAN" (Condition Affecting the Network) notices to drivers; dealing with lost property; making announcements; abusive and aggressive customers, and terminating trains.
5. On 23 July 2015, Mrs Tasevska sent an email to her supervisor, Gary Duddridge, Station Master at Werribee Station, with the subject matter "More staff and issues". Mrs Tasevska relevantly said:[2]

"In regards to our conversation earlier I would like to raise the issue of more staff needed at [L]averton station at l[e]ast two people due to disruptions it[']s too much stress for one person to deal with plus the A.O.S not being helpful sometimes ...

We need another staff member to help out because there is (sic) more issues at [L]averton terminating ... the trains, deal with replacement buses, lifts out of order, giving written instructions to drivers, making announcements, deal with unpleasant abusive rude customers.

1. Mrs Tasevska tendered an email from Mr Duddridge to Rohan Allan, a representative of Metro Trains, dated 24 July 2015, forwarding her email of the previous day. Mr Allan relevantly responded as follows:[3]

Please move the afternoon shift by one hour to assist."

1. Mrs Tasevska said that she did not receive an email response to her 23 July 2025 email. She did not recall anyone from Metro Trains discussing her email with her.
2. Mrs Tasevska said that she raised the issue of the need for extra staff with Mr Duddridge on multiple occasions in the years after 2015. She could not recall his responses, but nothing changed with the staffing levels.
3. Mrs Tasevska said that for a period of two or three years between about 2013 and 2016, Metro Trains employed additional station officers at the station for four hours during the morning shift. She believed those staff members were there to assist her; however, she also agreed that those staff were present to monitor trains through the Altona Loop. Mrs Tasevska said that when those staff were present, she would perform duties in the office and the other staff would assist customers outside.
4. There was no real controversy between the parties as to the essential circumstances of the incident. It was captured on CCTV footage.
5. Mrs Tasevska said she was required to deliver more than one CAN notice that day. This was an important notice and it was necessary that it be hand delivered to the driver. They were delivered on platform 1 and platform 2. That is, to the drivers of trains heading towards Werribee and drivers of trains heading to the City.
6. At about 6.20pm on 30 January 2020, Mrs Tasevska was required to deliver a CAN notice to a driver who was due to arrive on platform 2 at the station. The temperature was about 40 degrees. Mrs Tasevska waited at the far end of platform 2, adjacent to where the driver's carriage would stop. Whilst waiting for the train to arrive, Mrs Tasevska was approached by a male passenger. She walked a few steps towards that male passenger, and tried to assist with his enquiries. The male passenger then moved away and Mrs Tasevska was approached by a female passenger. Again, Mrs Tasevska tried to assist the female passenger with her enquiries. The male passenger approached Mrs Tasevska again, and was aggressive. At that point, Mrs Tasevska was standing near the entrance to platform 2. The train pulled into the station. Noting the arriving train, Mrs Tasevska took slow steps backwards. She said:[4]

"Well, I couldn't turn my back on the customer so I was - I took two steps back because the train was getting too close and I didn't realise the pillar behind me because I was concentrating on the CAN notice."

1. Mrs Tasevska was asked whether there was any reason why she did not turn her back on the male passenger and walk away when she saw the train approaching. She said:[5]

"I was trying to make him happy, answer his question. I was trying to do two things at the same time."

1. During cross-examination, Mrs Tasevska said:[6]

"At that time it was too quick. I didn't realise I am walking backwards."

1. As she stepped backwards, Mrs Tasevska fell over a large raised concrete plinth, injuring her left shoulder and neck.
2. Mrs Tasevska claimed that the incident was caused by the negligence of Metro Trains. Her case at trial was that Metro Trains ought to have had two station officers working at the station at all times. She said that having two staff members would enable one staff member to attend to duties in the station office/counter, and one staff member to undertake duties on the platform. Mrs Tasevska's contention was that if there had been two staff members on duty, she would more likely than not have avoided her injury. She said that in that scenario, she would have been in the office. If she had been delivering the CAN notice, she could have sent the passenger to the booking office to get information.[7]
3. Metro Trains denied any negligence, and, in the alternative, alleged that Mrs Tasevska was guilty of contributory negligence. It submitted to the jury that Mrs Tasevska had not satisfied her onus to establish that there was a reasonably practicable alternative system of work that Metro Trains ought to have employed. Further, that even if two staff members had been rostered, that Mrs Tasevska had not satisfied her onus to establish that such a system would have avoided her injury.

1. The legal principles are well known and were not in issue.
2. In Naxakis v Western General Hospital,[8] Gaudron J stated:

"It is well settled that, where there is a jury, the case must be left to them '[i]f there is evidence upon which [they] could reasonably find for the plaintiff', or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if 'there was no evidence on which the jury could properly conclude that the plaintiff had made out his case'. That does not mean that the case must be left to the jury if the evidence is 'so negligible in character as to amount only to a scintilla'. However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, 'that the overwhelming body of evidence points to the [contrary]'.

Moreover, when considering whether there is some evidence upon which a jury could find for a plaintiff, it is important to bear in mind that the jury may properly accept parts of a witness's evidence and reject others. Thus, for example, a jury may believe what is said by a witness in examination in chief and reject apparent modifications or qualifications elicited in cross-examination."

"When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.

In determining whether there is evidence upon which the jury could properly find for the plaintiff, the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence - whether directly or inferentially."

1. In King v Amaca Pty Ltd,[10] Kyrou J summarised the principles as follows:

"In order for a defendant's application for judgment notwithstanding the jury's verdict to succeed, the defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.

Where there is evidence to support the jury's verdict, the verdict cannot be disregarded even if the trial judge were strongly against the jury's conclusion.

A trial judge hearing an application for judgment notwithstanding the jury's verdict should determine the application on the evidence most favourable to the party that carries the onus of proof.

A trial judge should proceed with great caution and only exercise the power to give judgment in disregard of the jury's verdict in the clearest of cases."

1. Metro Trains submitted that the proper characterisation of the reasonably foreseeable risk was:[11]

" ... any particular interaction between ... [Mrs Tasevska] (or indeed any other worker) and members of the public at Laverton train station causing a distraction leading to a fall, or a strain injury, or some other distraction-relating event leading to injury. ... ."

1. Metro Trains submitted that the jury was required to objectively assess Metro Trains' response to that risk, having regard to, amongst other things, Metro Trains' responsibilities to all its employees.
2. Metro Trains submitted that Mrs Tasevska bore the onus of establishing a counterfactual hypothesis which identified what Metro Trains would have done if reasonable care had been exercised, and how the taking of that action would have averted her injury. This included establishing the appropriate response, having regard to the magnitude of the risk, given the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities Metro Trains may have.
3. It was submitted that there was no "objective" evidence of the appropriate staffing levels for the station, the need for additional security personnel, or the cost, inconvenience or reasonable practicability of providing a second staff member at the station. Consequently, it was submitted, the only evidence before the jury was:[12]

"... [Mrs Tasevska's] evidence that she believed a second worker would have prevented her fall on that particular occasion."

1. In conclusion, Metro Trains submitted:[13]

"... [Mrs Tasevska's] case could not have been regarded by the jury as anything other than that this particular interaction would not have occurred to her had a co-worker been present. There was no evidence upon which the jury could have concluded that the provision of a second full-time co-worker would have obviated the risk associated with any one particular interaction with the second employee.

Speaking objectively, the second employee would be placed in an identical position of risk due to public interactions.

... by answering Question 1 'yes', the jury must have disregarded:

(a) ... [Metro Trains'] duties and responsibilities to all its employees;

(b) the equal risk to the second employee from the same public interactions.

This was necessary evidence to enable the jury to find that [Metro Trains] had breached its duty of care.

If the jury propounded some other counterfactual scenario on which it based its finding of negligence against ... [Metro Trains], it must have done so in the absence of any evidence."

1. Leading Counsel for Mrs Tasevska did not cavil with Metro Trains' identification of the risk.[14]
2. Leading Counsel submitted that there was "much" evidence as to the magnitude of the risk:

(a) Mrs Tasevska had been in her role for many years and was very experienced;

(b) Mrs Tasevska described how she felt overloaded by her duties, issues with equipment and abusive passengers;

(c) Mrs Tasevska had told Metro Trains that more staff were needed at the station in her email of 23 July 2015. She said that following her email, she had made the same complaints orally to her supervisor, Gary Duddridge, "many times";[15]

(d) The jury had the photographs of the station which showed its large size, with three operating platforms;

(e) The jury had the CCTV footage of the incident;

(f) The incident report completed on the day suggested the staff member was quite occupied moving between platforms. Mrs Tasevska said that she had delivered a CAN notice to a driver on platform 1 that day;

(g) Mrs Tasevska said that at the time of her fall, she was trying to do two things at once.

1. Leading Counsel submitted that Mrs Tasevska identified the alternative system of work. The burden that would impose upon Metro Trains could be "easily understood by a jury with common experience of life".[16] Evidence of Metro Trains' financial resources was not relevant or admissible.[17] The jury were entitled to reason that the failure to roster another worker was negligent. In particular, the jury were entitled to find such a system was reasonably practicable given that Metro Trains had previously rostered additional station officers at the station for several hours during morning shifts for two or three years. There was also evidence by way of email from Rohan Allan, a representative of Metro Trains, who authorised moving the afternoon shift by an hour to assist with the issues raised by Mrs Tasevska in her email.[18]
2. Leading Counsel submitted that the jury was entitled to accept Mrs Tasevska's belief that if a second worker were present, she would have been in the office and the other worker would have been outside delivering the CAN notice. Mrs Tasevska said this was the pattern when other workers had previously been rostered onto the morning shift. Leading Counsel submitted:[19]

"The jury were entitled to accept this evidence. If they accepted the evidence, then ... [Mrs Tasevska's] case on causation was met."

1. The thrust of many of the submissions put on behalf of Mrs Tasevska was that if there had been a second worker, that worker, and not Mrs Tasevska, would have been on the platform delivering the CAN notice, and Mrs Tasevska would thereby have avoided injury. Those submissions misapprehend the appropriate formulation of the risk and the response required of a reasonable employer in the position of Metro Trains considered prospectively.
2. Metro Trains raised the absence of "objective evidence" as to the reasonable practicability of Mrs Tasevska's counterfactual hypothesis.
3. The jury was required to consider what the reasonable employer in the position of Metro Trains should have done to ameliorate a foreseeable risk of harm. That objective standard of conduct did not necessarily require objective evidence.
4. The jury were directed, without exception, as to the requirement for Mrs Tasevska to prove the reasonably practicable alternative system and to apply their common sense to the issue of causation.
5. The jury were entitled to act on Mrs Tasevska's evidence.
6. There was an unexplained absence of evidence from Gary Duddridge, Mrs Tasevska's supervisor. The jury were entitled to find that he was a witness whom Metro Trains would have been expected to call. The jury could choose to more readily accept evidence on a matter about which Mr Duddridge could have spoken or more readily draw an inference founded upon evidence which was given about that particular matter.
7. The question I must determine is not whether the verdict on Question 1 was unreasonable or perverse, but whether there was evidence which could justify or sustain a verdict in Mrs Tasevska's favour. My role is more circumscribed than that of an appellate Court.
8. The jury were entitled to accept Mrs Tasevska's evidence that the duties required of a station officer at the station were of sufficient scope that a reasonable employer in the position of Metro Trains would have employed two station officers at all times. They were entitled to find that having only one station officer on duty exposed that person to the reasonably foreseeable risk of suffering a distraction related fall or strain injury when interacting with the public at the same time as performing other duties.
9. There was evidence from which the jury could determine that having two staff members was reasonably practicable. Metro Trains had rostered additional staff during morning shifts for two or three years previously. Mr Allan had authorised an extension of the afternoon shift, presumably to provide some overlap of staff.
10. I find that it was open to the jury to infer that if there had been two workers rostered, it was more likely than not that the presence of the second worker would have avoided a distraction-related injury event due to interaction between a member of the public and the station officer. In other words, it was open to the jury to infer that whichever worker was on the platform performing duties (such as delivering a CAN notice), there was a second worker to whom passengers could be directed for assistance.
11. I find that there was evidence, albeit very limited, from which it was open to the jury to find that Metro Trains breached the duty of care it owed to Mrs Tasevska, and that such breach was a cause of her injury, loss and damage.
12. The Court should only disregard the jury's verdict in the clearest of cases. I am not persuaded that this is such a case.

1. Metro Trains' application for judgment notwithstanding the jury's verdict on Question 1 is dismissed.

[8] (1999) 197 CLR 269 at paragraphs [16] and [17] (footnotes omitted)

[10] [2011] VSC 422 at paragraphs [7]-[10]

[11] Metro Trains' Outline of Submissions dated 10 July 2025, at paragraph [5]

[12] Metro Trains' Outline of Submissions dated 10 July 2025, at paragraph [10]

[13] Metro Trains' Outline of Submissions dated 10 July 2025, at paragraph [11] and T375-376

[16] Mrs Tasevska's Outline of Submissions, undated

[17] PQ v Australian Red Cross Society and Others [1992] VicRp 2; [1992] 1 VR 19, at 32-34 per McGarvie J

[19] Mrs Tasevska's Outline of Submissions, undated