State Rail Authority (NSW) v Chu [2008] NSWCA 14
- Criminal conduct of a third party constitutes a "novus actus interveniens".
- Sexual assault breaks the causal link from slip and fall at train station.
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 case.
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 party.
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 [29]). 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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