Criminal conduct of a third party constitutes a "novus
Sexual assault breaks the causal link from slip and fall at
This is another slip and fall case, this time involving stairs
which we will again choose to categorise as a defective product.
The real reason, however, why we are including it is because of the
criminal content that is not usually evident in a product liability
A person cannot be liable for damages for failure to take care
to prevent personal injury unless negligence on its part caused the
harm. The current law in Australia (as laid down by the High Court)
as to whether negligence caused an injury is to be answered by the
application of 'commonsense'.
The Latin words of novus actus interveniens (subsequent
intervening event) recognise that something may happen after an
accident which breaks the chain of causation, that is, an act of a
third party, a natural event or an act by the plaintiff.
In this case, what was at issue was a criminal act by a third
Ms Chu fell after slipping on steps at a train station. About
five weeks after the accident, she was the victim of a sexual
assault. The trial judge found that the respondent's reduced
mobility made her more vulnerable to a sexual predator and hindered
her capacity to escape. She later commenced proceedings in the
District Court seeking damages for injuries sustained as a result
of the fall. On 4 April 2007 a verdict was entered for Ms Chu in
the sum of $239,405.00.
The State Rail Authority appealed the decision on a number of
grounds saying that it was not liable for the subsequent sexual
assault and challenging the findings that Ms Chu would not have
suffered a sexual assault if she had not been injured on the day of
the alleged accident and the sexual assault was a foreseeable
consequence of the appellant's breach of duty.
The Court of Appeal allowed the appeal in part. The sexual
assault was plainly a novus actus interveniens which broke the
chain of causation. The conduct of Ms Chu's assailant was
clearly a "free, deliberate and informed act". The sexual
assault upon her was a criminal offence. The Court of Appeal
referred to Modbury Triangle Shopping Centre Pty Ltd v
Anzil (2000) 176 ALR 411 as authority for the proposition
that, in the absence of a special relationship, one person has no
duty to prevent harm to another from the criminal conduct of a
third party even if the risk of such harm is foreseeable. (See
Gleeson CJ at ). There was no suggestion of a special
relationship between the appellant and the respondent which would
negative this general proposition.
For these reason, the Court of Appeal considered that there was
a clear break in the causal link between the injury suffered by Ms
Chu, and the injury she suffered as a result of the sexual assault
some weeks later.
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