Supreme Court New South Wales Medium Neutral Citation: Chol v Sydney Trains (No 2) [2022] NSWSC 1267 Hearing dates: 27 June 2022 Date of orders: 27 June 2022 Decision date: 27 June 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: The specified evidence set out in the notice to adduce tendency evidence dated 27 May 2022 is admissible. Catchwords: EVIDENCE — Tendency evidence — Intoxication — Significant probative value Legislation Cited: Australian Consumer Law Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Cases Cited: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Category: Procedural rulings Parties: Aluk Majok Chol (Plaintiff) Sydney Trains (Defendant) Representation: Counsel: J Catsanos SC with S Roulstone (Plaintiff) P O'Dowd (Defendant) Solicitors: Malouf Solicitors (Plaintiff) Ashurst (Defendant) File Number(s): 2019/235959 Publication restriction: None REVISED EX TEMPORE Judgment 1. The plaintiff sues the defendant for damages in respect of injuries she sustained as the result of an accident, which happened at Auburn Railway Station on 4 August 2016. 2. On that day, the plaintiff sought to enter a train as the doors were closing. Her handbag became caught in the doors of the train and she subsequently fell between the train and the platform. During cross‑examination of the plaintiff, counsel for the defendant, Mr O'Dowd, sought to ask questions of the plaintiff concerning earlier events in which she was found to be intoxicated, particularly on railway stations. Mr Catsanos of senior counsel, who appears with Mr Roulstone for the plaintiff, objected. 3. The defendant accepts that the evidence would ordinarily be inadmissible, having regard to s 97 of the Evidence Act 1995 (NSW), but seeks to rely on s 97(1)(a) and (b) on the basis that the defendant gave reasonable notice to the plaintiff in writing of the defendant's intention to adduce the evidence; and that the evidence will, either by itself or having regard to other evidence which the defendant seeks to adduce, have significant probative value. The plaintiff opposes the admission of such evidence. 4. On 27 May 2022, the defendant served a tendency notice. The conduct or tendency specified in the notice was as follows: "(i) As at the date of her accident, the Plaintiff had an alcohol abuse disorder; or in the alternative was prone to ingesting excessive amounts of alcohol such that she became heavily intoxicated. (ii) That the plaintiff's ingestion of excessive amounts of alcohol (which included a mixture of bourbon with coke) occurred when the Plaintiff was outside her home and in public places, including whilst using public transport including buses and on train stations. (iii) That her level of intoxication during and after ingesting excessive amounts of alcohol was high, on one occasion at a level of EtoH 63.0mmol/L, 29%, and included her demonstrating behaviours such as refusal to cooperate with paramedics called to assist her, yelling out and crying, aggressive behaviour, lack of co-ordination causing her to fall off bus seats, slurred speech, inability to get up after falling to the ground, unsteadiness on her feet. (iv) That on the day and just prior to the Plaintiff's accident she had become intoxicated as a consequence of consuming a significant quantity of Jim Beam Bourbon Whisky mixed with coke whilst seated on the ground at Auburn station for a period of approximately 40 minutes. (v) The evidence in the schedule below proves that the Plaintiff had a tendency to consume excessive quantities of alcohol when outside her home and in particular at train stations such as Auburn Railway Station. Her high level of intoxication resulted in her becoming heavily intoxicated to the point where she was significantly impaired in her decision-making abilities and had become unsteady on her feet and lacking in co-ordination such as render her liable to poor judgement and the making of poor decisions such as attempting to board a train after the doors had closed and becoming unsteady on her feet causing her to fall." 1. Accompanying the tendency notice was a schedule of the evidence, which the defendant sought to adduce, which primarily consists of five incidents in which it is said that the plaintiff was found to be intoxicated, as follows: 1. On 15 July 2011, the plaintiff was found to be intoxicated at Mount Druitt Railway Station, with a bottle of bourbon. 2. On 11 November 2012, the plaintiff was found to be intoxicated, having collapsed on a bus. 3. On 22 July 2014, the plaintiff was found lying on the ground at platform 2 of Cabramatta Railway Station and was found to be affected by alcohol. A water bottle that she had filled with whiskey was located beside her. 4. On 14 October 2014, the plaintiff was removed from a train at Wagga Wagga Railway Station due to her level of intoxication. 5. On 21 October 2015, the plaintiff was found lying on a bench at Granville Railway Station and was found to be intoxicated. 1. The defendant seeks to adduce evidence of these incidents for the purposes of establishing, along with other evidence, that the plaintiff was intoxicated at the time of the accident. The relevant fact in issue is thus whether the plaintiff was intoxicated at the time of the accident. 2. Ordinarily, evidence of prior incidences of a person being intoxicated would hardly have any relevance in terms of determining whether someone was intoxicated at a later date. A party could hardly establish that a person was driving a vehicle whilst intoxicated by pointing to other examples of the person driving a vehicle whilst intoxicated. 3. However, in this case, Mr O'Dowd says that tendency evidence is to be relied upon by him in conjunction with other evidence which he describes as significant, including that: 1. Following the accident, the plaintiff has admitted that she consumed alcohol prior to the accident. 2. The plaintiff has admitted that she had two bottles of Jim Beam and attempted to fill a water bottle (or something like that) with a bottle of Jim Beam and Coke. The other bottle of Jim Beam seems to have disappeared. 3. The defendant will be putting to other witnesses, presumably subject to objection, that the video of the plaintiff demonstrates her, in some way, being unable to control her balance, or suggesting that she may have been affected by alcohol, and that she had been sitting on the station for a significant period, indeed, whilst an earlier train had gone by, and made no attempt to get on it, and that all of the circumstances point to the plaintiff being intoxicated at the time. 1. In other words, the defendant is not simply relying on the tendency evidence alone to establish the fact of intoxication. The defendant points to a number of other pieces of evidence which would, the defendant submits, support that proposition. Of course, whether those other pieces of evidence support the proposition is a question to be later determined. 2. There is no dispute that the defendant has provided reasonable notice in accordance with s 97(1)(e) of the Evidence Act. There is also no dispute that the defendant will be seeking to rely on other evidence, in addition to the evidence set out in the schedule to the tendency notice, which the defendant says will establish the fact of intoxication. 3. There is, however, dispute as to whether the evidence sought to be relied upon, that is, evidence of the plaintiff's tendency to be intoxicated, particularly on railway stations, and to do things such as fill up bottles with whiskey, has a significant probative value. The defendant is seeking to establish that the plaintiff tended to sit on railway stations and consume alcohol to such a level that she would become intoxicated. 4. Of course, there is no direct evidence that the plaintiff was intoxicated at the time, because although she sustained serious injuries and was taken to hospital, the hospital records do not reveal any note or examination for her state of intoxication. Thus, unlike in many other cases, there is no record on which the defendant could rely for the purposes of establishing the state of intoxication. 5. The defendant must be seeking to ask me to infer, having regard to the combination of factors, that the plaintiff was intoxicated. 6. Probative value is defined in the dictionary to the Evidence Act (s 3). It means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The fact in issue is whether the plaintiff was intoxicated at the time. As set out in IMM v The Queen, [1] I must proceed on the basis that the evidence the defendant seeks to adduce will be accepted, although I am not determining that at this time. 7. Significant probative value is not defined in the Evidence Act; however, in IMM v The Queen, the Court (per French CJ, Kiefel, Bell and Keane JJ) observed at [46]: "The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding." 1. In Hughes v The Queen, [2] the Court (per Kiefel CJ, Bell, Keane and Edelman JJ) said at [16]: "Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent." 1. In my view, there is certainly an issue as to the extent that I could draw any inference from the fact, if established, that the plaintiff had a tendency to consume excessive amounts of alcohol, become intoxicated, behave in an aggressive manner, and do so outside her home, and in particular, at train stations such as Auburn Railway Station. 2. It could not be that merely adducing evidence of a tendency of someone to be intoxicated could have any significant probative value in a case such as this. However, the strength of the defendant's argument is that the defendant seeks to adduce evidence, not just of the fact, if it be proved, that the plaintiff had a tendency to consume excess quantities of alcohol but, that she had a tendency to do so at railway stations. Further, the evidence must not be viewed in isolation. Mr O'Dowd submits that he will be adducing further evidence, perhaps on one view more compelling evidence, of the fact which he seeks to establish, both through cross‑examination of experts and other evidence to establish the fact of intoxication. 3. I should say, at this stage, that it is not entirely clear what the relevance of the plaintiff's alleged intoxication might be. She accepts that there would need to be a reduction on account of contributory negligence should the defendant be found liable, presumably because she placed her handbag or hand between the doors as they were closing. Intoxication may provide an explanation for that conduct but, at least on one view, the fact that she was intoxicated does not in some way result in an increase of any assessment of culpability against her in accordance with the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). 4. However, the defendant says that this evidence has particular relevance in this case because the defendant will be submitting at the end of the case that, having regard to the relationship between the Australian Consumer Law and the Civil Liability Act 2002 (NSW), the defendant will be able to rely on the defence set out in s 50 of the Civil Liability Act. As is well known, s 50 provides for a mandatory reduction on account of contributory negligence in some circumstances and a total defence in other circumstances. It is not necessary that I say more about s 50 the argument which the defendant intends to pursue but, Mr O'Dowd puts that he will be pursuing that argument in the circumstances. I accept at this point that the state of the plaintiff's intoxication may have some relevance and, at least, on the defendant's argument, may be significant. 5. As I have said, it may be that in most cases of this type, it would be drawing a long bow for a defendant to come to Court and seek to establish that the fact that a person tended to drink a lot and become intoxicated at some earlier stage could possibly be relevant to whether the person was actually intoxicated at the time. The state of intoxication of a person is normally proved through other means. 6. However, I have regard to all of the matters to which Mr O'Dowd has referred and consider that in the circumstances of all of those matters, the evidence could have significant probative value. By this, I mean that the evidence will, having regard to the other evidence adduced, have significant probative value. I hasten to add that, as I have already observed, I am not in any way suggesting that I would accept the ultimate argument put by the defendant or that it has any particular strength. Still, I must proceed on the basis that the evidence which the defendant says it will be adducing will be adduced and will be accepted. 7. In those circumstances, the evidence of a tendency of the plaintiff to consume quantities of alcohol on railway stations particularly and doing things such as emptying alcohol into another bottle and then becoming intoxicated is, in my view, of significant probative value, and I propose to admit the evidence. ********** Endnotes 1. (2016) 257 CLR 300; [2016] HCA 14. 2. (2017) 263 CLR 338; [2017] HCA 20. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2022