A Step Too Far: Widening The Scope Of Liability?

In a recent district court decision¹, it was held that the rape of a woman was causally connected to the fact that she had broken her ankle weeks earlier at a CityRail station. As a result the defendant, the State Rail Authority of New South Wales (SRA), was held liable and damages awarded to the plaintiff.

The damages awarded were, in part, for the physical injuries and economic loss sustained as a result of the fall itself. There is of course nothing unusual in that. However, what makes the case exceptional is that an amount was awarded for the psychological harm caused to the plaintiff as a result of the rape (which was perpetrated by a private individual in no way connected to SRA and occurred weeks after the fall at a location not under the control of SRA).

In the early hours of 29 December 2002, the plaintiff caught a train from the city. Alighting at Sydenham for her connecting train to Wiley Park, the plaintiff slipped whilst descending a set of stairs on the platform. Ultimately it was discovered that the plaintiff had sustained a fractured ankle in the fall. Relevantly, it had been raining that night and the stairs on which the fall occurred were wet at the time.

Subsequently the plaintiff attended hospital and had her ankle fitted with a plaster cast.

A few weeks later (with her ankle still in plaster) the plaintiff was in the house of a man she had recently met. Somewhat unexpectedly, the man explained that his intention was to have sex with her. The plaintiff resisted but ultimately she was overpowered by the man and was sexually assaulted.

At trial the plaintiff contended that the sexual assault would not have occurred but for the injury to her ankle; that is, had she not been so injured, she would have been able to successfully repel the man and escape from his room, thereby avoiding the sexual assault. The judgment of Goldring DCJ provides as follows.

The plaintiff says that the sexual assault occurred, in large part, because she was partially immobilised by the injury to her ankle. Because her ankle was in plaster and she required crutches to move, she was not able to escape from her assailant.

Significantly, the judgment makes it clear that it was not the injury alone which prevented the plaintiff from fleeing the man. Rather, it was but one of the factors which prevented her escape.

At trial, liability for the plaintiff's fall at the station was attributed to SRA's breach of its duty of care. The reasoning concerned the inadequate slip resistance provided by the steps at the station. SRA did not seriously contest this aspect of the case.

However, SRA did contest the allegation that the plaintiff's psychological injury (i.e. depression) was caused by the fall. The defendant contended that the plaintiff's depression stemmed from the (later) sexual assault which, so the defendant argued, was in no way connected to the fall at the station or the injuries sustained thereby.

After considering the provisions of section 5D of the Civil Liability Act 2002 (NSW), Goldring DCJ held that …but for the injury to her ankle, [the plaintiff] would not have suffered the sexual assault and its consequences.

In the judgment, Goldring DCJ states.

In this respect, the Court widened the scope of responsibility. This was a way for the Court to dispense with SRA's contention that the plaintiff's depression was a result, not of the fall but of the (later) sexual assault. The sexual assault was the more likely cause for the plaintiff's depression. Given that fact, unless a casual connection could be established between the initial injury (to the plaintiff's ankle) and the sexual assault, then no damages could flow from SRA in respect of the psychological injury.

At first blush, this decision, understandably, is a cause for some alarm. However, upon further consideration, this case represents more an aberration rather than any shift in the law. As noted above, the casual connection as established by the Court could be viewed as a convenient method of circumventing an obstacle in the plaintiff's claim, rather than any widening of liability. It is unlikely this decision broadens the scope of duty of care at common law. Not surprisingly, Railcorp has indicated that it will appeal the decision.

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