State Rail Authority of New South Wales v Chu

“The causal connexion between a defendant’s negligence and the plaintiff’s damage is negatived by the subsequent conduct of another person only when that conduct is “the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant”.¹

Staircase Slip at Sydenham Station

At approximately 1AM on the morning of 29 December 2002, Ms Yu-Mei Chu was travelling home by train after having spent an evening in Sydney’s city centre. Her journey home would take her to Wiley Park Station in Sydney’s south-west, but first, she needed to change trains at Sydenham Station in the inner west. 

The 31-year-old Taiwanese television reporter was living temporarily in Sydney in order to further her career by improving her English language skills. She had been in Sydney a little over 3-months and was studying English at a private college. On the night in question, Ms Chu took a train from the city centre and alighted at Sydenham Station. Her train to Wiley Park was due to depart from a different platform. To reach that platform, Ms Chu was required to ascend a staircase, walk across a pedestrian bridge, and then descend the stairs on the other side. It was raining that night and the stairs down to the platform were wet and slippery. When Ms Chu was descending the stairs, as she was approximately seven steps from the bottom, her left foot slipped and she fell down the remainder of the staircase. 

Ms Chu sustained a fractured left ankle and an injury to her lower back. Her pain and immobility also caused her to suffer immediate depression. Her hair started to go grey within a matter of days after the accident, and she had difficulty concentrating. She lost all her self-confidence and hope for the future, and she was no longer sociable following the accident.²

The Subsequent Sexual Assault

While in Sydney, Ms Chu was receiving assistance from a man who took her around and spoke English with her. Approximately five weeks after her fall–while her left leg was still in plaster–the man invited her to his home, took her into his bedroom, and prevented her from leaving. Ms Chu was then the victim of a sexual assault. She was also subjected to physical beatings over a period of many hours.³

Ms Chu commenced proceedings in the District Court of New South Wales against the State Rail Authority, seeking damages for the injuries she sustained as a result of her staircase slip, including her sexual assault. It was Ms Chu’s case that her sexual assault was a direct and foreseeable consequence of her fall at Sydenham Station.

Sydenham Station–A Brief Interlude 

Sydney’s Sydenham Station has an unfortunate association with railway-related incidents. On 15 February 1901, a commuter train derailed just south of the station. The train was travelling at full speed and its eight wooden carriages were crowded with passengers. The high speed, combined with a defective engine, caused the train to leave the rails. The engine flipped off the tracks, did a complete somersault, and finished 0n its wheels again, before colliding with a crossing gate and signal post. The first carriage followed the engine off the tracks and was split open. Concerned locals came rushing out of the surrounding houses upon hearing the noise of the disaster. Several passengers had to be pulled out through the roof of the carriage. Fortunately, the driver was able to shut off the steam to prevent an explosion. Unfortunately, heavy rain commenced shortly after the derailment and rescue operations were greatly impeded. In total, seven passengers were killed and 26 others were injured.⁴

Over 50 years later, on 19 December 1953, disaster struck again when two suburban passenger trains collided at Sydenham Station on a busy Saturday afternoon. Both trains were crowded, each with approximately 1,200 passengers, many of whom had been doing their Christmas shopping in the city. Some of the carriages were older wooden carriages, just like in the 1901 disaster, and this likely contributed to the casualties. Passengers were hurled in all directions as the carriages were destroyed in the collision. The accident was caused by a signal electrician who had manipulated a signal but then became distracted by a telephone call. This resulted in one of the trains proceeding through an incorrect green signal. In total, five people were killed and 748 were injured. The signal electrician was charged with manslaughter, as was the driver of one of the trains who was found to have consumed the equivalent of 11 glasses of beer.⁵

Ms Chu’s Negligence Action 

It was almost 50 years after the second Sydenham rail disaster that Ms Chu tumbled down the staircase at the station on a rainy night, not long after Christmas. It was her case that the State Rail Authority’s negligence had caused her to slip. In particular, Ms Chu relied upon the yellow warning paint that had been applied to the edges of the steps. An engineer’s report found that the yellow paint made the steps hazardous in wet weather conditions. The unpainted parts of the steps, by contrast, were not slippery when wet. This situation could easily have been avoided, the report stated, if anti-slip grains had been added to the yellow paint. The evidence indicated that when Ms Chu slipped, her foot was on the painted slippery part of the step, rather than the unpainted non-slippery part. In accordance with the engineer’s report, the trial judge found that Ms Chu’s fall was indeed caused by the Rail Authority’s negligence. 

Consideration was then given to the defence of contributory negligence. According to the Rail Authority, Ms Chu had failed to take sufficient care for her own safety as she was not using the handrail at the time of her fall. The trial judge, however, rejected this defence. His Honour accepted Ms Chu’s evidence that she had been walking down the staircase carefully as she realised the steps might be slippery. There had been no failure on her part to take reasonable care for her own safety.

But what about Ms Chu’s subsequent sexual assault? According to the trial judge, this was a direct and foreseeable result of her fall at Sydenham Station. Her reduced mobility, given that her leg was still in plaster, made her more vulnerable to a sexual predator and hindered her capacity to escape. 

More specifically, the trial judge’s finding that the Rail Authority was responsible for Ms Chu’s sexual assault was based upon the principles set out in the applicable legislation–the Civil Liability Act 2002 (NSW) s 5D: 

(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

In relation to section 5D(1)(a)–the issue of factual causation–his Honour found that Ms Chu would not have suffered the sexual assault had she not been immobilised as a result of her fall. 

In relation to s 5D(1)(b)–scope of liability–his Honour also found in favour of Ms Chu. His Honour used the analogy of a person whose mobility is impaired in an accident and who is subsequently struck by a car whilst attempting to cross the road. In such a situation, according to his Honour, the negligence of the person who caused the initial accident will also have caused the subsequent injury. 

Ms Chu was awarded damages in the sum of almost $240,000, which included compensation for her sexual assault and its aftermath. Her damages included an award of $75,000 for past economic loss given that, by the time the case came before the Court, Ms Chu had been fully incapacitated from her work as a television reporter in Taiwan for a period of three years. Her damages also included over $54,000 for her future loss of earning capacity, on the basis that by reason of her injuries, she would likely be prevented indefinitely from working as a television reporter. The trial judge accepted the evidence given by Ms Chu that it would be “impossible” for her to return to her previous occupation, which required a self-confident personality and the ability to cope under pressure. 

The State Rail Authority appealed against the trial judge’s decision. Ms Chu lodged a cross-appeal in relation to the calculation of her damages, arguing that the figure for her future loss of earning capacity should have been significantly higher. 

Sexual Assault Severs the Causal Chain

In the NSW Court of Appeal, Matthews AJA (Hodgson and Bell JJA agreeing) upheld the trial judge’s findings that the Rail Authority had been negligent in relation to the use of the hazardous yellow paint on the staircase.⁶ The Court also agreed with the trial judge that Ms Chu had not been contributorily negligent. Although there was a sign at the top and bottom of each staircase which warned commuters that the steps might be slippery when wet, these signs were not prominent and Ms Chu did not see the signs before her accident. Further, she could not have known of the particular hazard presented by the highly slippery yellow paint.⁷

In relation to Ms Chu’s subsequent sexual assault, however, the Court allowed the Rail Authority’s appeal. The trial judge had erred in relation to the issue of causation. According to the Court of Appeal, there was little evidence to support the trial judge’s finding on the causal connection between Ms Chu’s fall and her subsequent sexual assault. Rather, ‘the preponderance of evidence was that the assault would probably have occurred whether or not she had been injured in the fall’.⁸

It was further held that Ms Chu’s sexual assault was a novus actus interveniens–a subsequent intervening event–which broke the chain of causation.⁹ This was the criminal act of a third party and, applying the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil (‘Modbury’),¹⁰ the rule is that one person has no duty to prevent another person from being harmed by the criminal conduct of a third party. The exception is cases involving a special relationship–such as an employment relationship or the relationship between school and pupil–but these exceptions were clearly not applicable in Ms Chu’s case.¹¹ While Modbury was a case dealing with the duty of care owed by an occupier of land to entrants, the Court of Appeal was able to apply it to Ms Chu’s case to find that there was ‘a clear break in the causal link’ between her fall at the station and her subsequent sexual assault.¹²

The Court of Appeal further held that it would have found against Ms Chu on the scope of liability issue, as ‘it was not reasonably foreseeable that a young woman who was immobilised to the extent of having to use crutches would thereby be exposed to a criminal sexual assault’.¹³

As a result of the Court’s decision, Ms Chu’s damages needed to be re-calculated. This was somewhat of a difficult task because the trial judge had not differentiated between her psychological injury caused by her initial fall, and her psychological injury caused by her subsequent sexual assault. In the end, the Court of Appeal decided to reduce Ms Chu’s damages by just over $22,000. While her damages for future loss of earning capacity were increased by nearly $50,000, her non-economic loss damages were reduced by just over $71,000 on the basis that her sexual assault and its aftermath were not compensable. The Court of Appeal observed that it was her physical disabilities and the restrictions on her mobility which were primarily responsible for her psychological problems, rather than her sexual assault.¹⁴

Conclusion: Causation in Rail Cases

Ms Chu’s case was not the first to consider causation on the railways or at the railway station. In Caterson v Commissioner for Railways,¹⁵ the High Court of Australia had to consider whether a father’s act of leaping from a moving train in a desperate attempt to be reunited with his son constituted a novus actus interveniens which severed the chain of causation between the railway company’s negligence and the father’s injuries. You can read our post on Caterson here. In contrast to Ms Chu’s case, Caterson considered whether the plaintiff’s own conduct, as opposed to the conduct of a third party, was capable of severing the causal chain. 

A railway case involving the impact of criminal conduct on the chain of causation was Gray v Thames Trains Ltd,¹⁶ although once again, the conduct in question was that of the plaintiff themselves, rather than a third party like in Ms Chu’s case. Our post on Gray provides an overview of the case which involved a man who stabbed another man to death after sustaining serious psychological injuries in a train collision. 

For Ms Chu, the broken ankle she suffered due to the Rail Authority’s negligence may have hindered her capacity to escape from a sexual predator. However, the Court of Appeal was clear that factual causation simply could not be established given the difficulty associated with controlling the criminal conduct of third parties. In Modbury, which the Court of Appeal relied upon in reaching its decision in Ms Chu’s case, Hayne J in the High Court of Australia observed that the coherence of tort law depends upon ‘notions of deterrence and individual responsibility’. However, if one person must prevent the criminal conduct of another, these values would be diminished, with financial responsibility for the consequences of crime shifted from the wrongdoer to a defendant with little or no capacity to influence the criminal behaviour.¹⁷