Chol v Sydney Trains

In August 2016, Aluk Majok Chol, aged 46, sustained significant injuries in an accident at Auburn Railway Station, located on Sydney’s Main Suburban railway line. On a Thursday afternoon at approximately 2PM, Ms Chol was sitting at the station, waiting for her train. As the train pulled into the station, she made no immediate move. However, she eventually gathered her shopping bags and moved towards the doors of the train. Having not seen Ms Chol’s last minute approach, the customer service attendant at Auburn Railway Station signalled with a white flag, instructing the train guard that it was safe to close the doors. As Ms Chol drew near, the train’s heavy doors began to close.

Ms Chol thrust her right arm forward, her hand clutching the strap of her handbag. However, it was too late—the doors snapped shut, catching the strap of her bag as the train started to move. Ms Chol was thrown off balance and fell between the edge of the platform and the moving train. As a result of the accident, she sustained devastating injuries, including a ruptured bladder, pelvic and spinal fractures, and significant nerve damage. These injuries left her permanently disabled and in need of ongoing, extensive treatment and care for the remainder of her life. In particular, she experiences significant difficulty walking and standing without assistance. The accident was captured on CCTV at Auburn Railway Station and the nature and severity of Ms Chol’s injuries was not contested.

Ms Chol argued that employees of Sydney Trains observed her approaching the train doors and standing directly adjacent to the edge of the platform, immediately prior to the train starting to move. She submitted that there was ample time for the defendant’s employees to observe her in this precarious position and that they failed to take reasonable steps to ensure that she was not injured.

Sydney Trains argued that Ms Chol was the author of her own misfortune. Its employees had acted in accordance with an accepted safety system and Ms Chol had placed herself in a position of danger by attempting to stop the doors from closing. The defendant further claimed that Ms Chol was intoxicated at the time of the accident and fell between the platform and the train because she was unable to properly balance. Finally, the defendant submitted that even if it had failed to take reasonable care, Ms Chol’s damages should be substantially or completely reduced, on account of her contributory negligence.

The Supreme Court Decides

Cavanagh J in the Supreme Court of New South Wales was tasked with determining whether Sydney Trains had been negligent. Under s 5B(1) of the Civil Liability Act 2002 (NSW), a person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Cavanagh J emphasised that Sydney Trains was not required to guarantee Ms Chol’s safety:

‘…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. … [t]he 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.’¹

Consideration was also given to the decision in State Rail Authority of NSW v Schadel,²where the New South Wales Court of Appeal considered an accident which occurred in circumstances somewhat comparable to those in Ms Chol’s case. In the Schadel case, the plaintiff, a highly intoxicated passenger, disembarked from a train at Sydney’s Central Railway Station. The train guard signalled to the driver and the train began to depart. However, under circumstances that remained unclear, the plaintiff was somehow struck by the rear carriage as the train was pulling away. He was knocked onto the tracks, suffering serious injury in the process. Giles JA (Sheller and Beazley JJA agreeing) observed that a railway authority does not possess an ‘unbridled licence to send its trains on their way’.³ His Honour continued:

‘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.’⁴

The Tendency Evidence

An added difficulty in Ms Chol’s case was the question of whether she was intoxicated at the time of the accident. Ms Chol admitted to taking a sip of bourbon mixed with Coke while waiting at Auburn Railway Station but denied being intoxicated. Further, none of the hospital records indicated any signs of intoxication. Despite this, counsel for Sydney Trains attempted to question Ms Chol during cross-examination about past instances where she was found to be intoxicated, particularly at railway stations. Senior counsel for Ms Chol objected to the admission of this ‘tendency evidence’. Tendency evidence is used to support an inference that a person, due to a propensity to act in a certain way, has acted in accordance with that propensity at the time of the incident.

There was no dispute that Ms Chol had endured a difficult life. Born in South Sudan, she fled to Kenya to escape the civil war. Her husband died at a young age while fighting in the conflict. In 2006, Ms Chol arrived in Australia with her three young children on a refugee visa. Since then, she has not been employed and has struggled to learn English. Her struggles were heightened after the traumatic suicide of her 23-year-old daughter in 2013. This tragic loss had a profound impact on Ms Chol and significantly affected her emotional well-being.

While Ms Chol acknowledged drinking alcohol occasionally, there was considerable disagreement about the extent of her alcohol consumption immediately prior to the accident. The defendant alleged that she had had become intoxicated after consuming a significant amount of Jim Beam Bourbon Whisky mixed with Coke whilst seated at Auburn Railway Station for approximately 40 minutes. This behaviour was, according to Sydney Trains, consistent with her tendency to consume excessive quantities of alcohol when outside her home, particularly at train stations. To support this, the defendant presented five specific incidents in which Ms Chol was allegedly found intoxicated at railway stations in Sydney, as well as on buses and trains, between 2011 and 2015. The defendant sought to introduce evidence of these incidents to establish, along with other evidence, that Ms Chol was intoxicated at the time of the accident.

Under s 97 of the Evidence Act 1995 (NSW), any such evidence (‘tendency evidence’) is ordinarily inadmissible. The legislation provides:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless–
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.’ [emphasis added].

Cavanagh J found that evidence of Ms Chol’s tendency to be intoxicated, particularly at railway stations, could have ‘significant probative value’ when combined with other evidence adduced by Sydney Trains.⁵

In the end, however, the other evidence upon which the defendant sought to rely either failed to materialise or was rejected by the court. For instance, Sydney Trains suggested that as Ms Chol was sitting at the train station, preoccupied and drinking a significant quantity of alcohol, another train bound for her destination of Guildford passed by. However, Ms Chol countered that she had mistaken the train for one bound for the city of Penrith. The defendant’s argument that public announcements would have informed Ms Chol of the train’s destination was of little relevance, given her very limited proficiency in English. Overall, Cavanagh J did not accept that Ms Chol’s prolonged stay at the station was indicative of intoxication.

The defendant’s argument that, from an ergonomic perspective, the manner in which Ms Chol fell suggested that she must have been intoxicated, was also rejected. It was put to Ms Chol that she fell between the platform and the train because she was intoxicated and incapable of balancing herself. Ms Chol disagreed, explaining that her handbag, which was trapped in the door, was heavy and difficult to pull free, causing her to lose her balance. In the absence of contrary evidence, Cavanagh J accepted Ms Chol’s version of events.

In the end, while the tendency evidence was admitted, Cavanagh J concluded that the mere fact Ms Chol had a history of alcohol misuse and had been found intoxicated at railway stations on previous occasions did not, by itself, establish that she was intoxicated at the time of the accident.⁶

The Court’s Conclusion

Ultimately, Cavanagh J found that the risk of a passenger being caught in the closing doors of the train and injured if the train started moving was ‘reasonably foreseeable’ and ‘not insignificant’, leading to a conclusion of negligence on the part of the defendant. His Honour determined that Ms Chol did not place herself in danger after the train had commenced moving; she was already standing in a precarious position before its departure. Although the defendant was not required to ensure all passengers were behind the yellow line, Ms Chol was clearly in a very vulnerable position, standing on the white line, adjacent to the edge of the platform.

While Cavanagh J acknowledged that Sydney Trains had a proper system in place to ensure the safety of its passengers—including the use of flags and whistles—on this occasion, there had been a failure to comply with that system. Expert evidence indicated that the train guard had a clear line of sight to Ms Chol. After the doors of the train had closed, the guard observed Ms Chol suddenly appear and begin to bang on the doors with her hands. He claimed that he waited until she had stepped back from the train, before signalling to the driver to proceed. Moments later, just as the train began to move, Ms Chol vanished from view, prompting the guard to immediately signal for an emergency stop. Unfortunately, it was too late. Having seen Ms Chol standing on the white line, the guard should have delayed the train’s departure or re-opened the doors to allow Ms Chol to move to safety.

Contributory Negligence Defence

Contributory negligence focuses on the plaintiff’s actions and whether they took reasonable care for their own safety. We have explored this defence in several previous posts. For instance, in State Rail Authority of NSW v Chu,⁷ a woman who fell down a staircase at Sydney’s Sydenham Railway Station was found not to have been contributorily negligent, despite not using the handrail on a rainy night. Signs warning commuters that the steps might be slippery when wet had not been placed in a prominent position. Readers will also recall that in Caterson v Commissioner for Railways,⁸ a father who leapt from a moving train in a desperate attempt to be reunited with his 14-year-old son who was left behind on the platform was also found not to have been contributorily negligent in the circumstances.

In contrast to these cases, Ms Chol accepted that she was contributorily negligent. She had placed herself in a position of danger by throwing her arm out as the doors of the train were closing. The defendant argued that her contributory negligence should be assessed at 100%.

Cavanagh J, however, determined that Ms Chol’s level of contributory negligence was significantly lower. While his Honour noted that Ms Chol had been drinking alcohol at the relevant time—though she was not intoxicated—he concluded that consuming alcohol prior to catching public transport does not, in itself, suggest a failure to exercise reasonable care for one’s own safety. Indeed, in our society, individuals who drink alcohol are encouraged to use public transport. His Honour further noted that it was the defendant who bore the greatest responsibility in the circumstances:

‘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.’

On this basis, Cavanagh J found that relative culpability should be assessed more against Sydney Trains than Ms Chol, assessing her contributory negligence at 33%.

Conclusion

As a result of falling between the platform and a moving train, Ms Aluk Chol suffered life-altering injuries that left her permanently disabled, requiring extensive care and treatment for the rest of her life. She was awarded damages amounting to over $1.76 million, which was subsequently reduced to approximately $1.18 million following the 33% reduction for her contributory negligence.

The decision of the Supreme Court of NSW serves as a crucial reminder that while a defendant may have established a safety system, it is equally important to ensure this system is enforced. As observed by Cavanagh J:

‘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.’⁹