Reader: For want of a nail, the shoe was lost;
For want of a shoe, the horse was lost;
For want of a horse, the rider was lost;
For want of a rider, the battle was lost.
For want of a battle, the kingdom was lost;
And all for want of a nail.
Anita Barraud: The nursery rhyme sometimes attributed to Benjamin Franklin has been used to describe a 'But for' case, recently heard in a Sydney county court.
A young Taiwanese journalist visiting Australia fractured her ankle. The question for the judge was, would she have been sexually assaulted and beaten if she wasn't in plaster? He said yes, and the woman was awarded almost $250,000 in a civil compensation suit against the New South Wales Rail Authority.
Harold Luntz, Professorial Fellow at the University of Melbourne Law School is a world-renowned specialist on compensation cases.
Harold Luntz: She slipped on wet steps at the railway station, and some weeks later, while her leg was still in plaster, she was raped. She claimed that she would have been able to avoid the rape if she had not had her leg in plaster. And the judge found that the consequences of the rape, which were psychiatric, were attributable to the slip on the railway premises, and that the railways were liable for those consequences.
Anita Barraud: Her claim was that the accident was due to a breach of the Rail Authority providing safe access to the railway platform. That was uncontested in the judgment.
Harold Luntz: That's right.
Anita Barraud: Although the defendant, the State Rail Authority in this case, did say that she'd failed to take care of her own safety, and the judge disagreed.
Harold Luntz: Yes. The dispute seemed essentially to be on contributory negligence on her part, where she contributed to her injury by failing to take care, because there were warning signs up that the steps were slippery.
Anita Barraud: Although, as it's pointed out, she was a visitor to Australia; she was from Taiwan and her English wasn't particularly proficient.
Harold Luntz: Well those issues were, as you said, not really heavily contested and the judge dealt very briefly with the failure on her part to take care for her own safety. The controversial issue was the subsequence consequences of that slip and her broken leg.
Anita Barraud: In a sense, the State Rail Authority is being made responsible for the consequences of an accident.
Harold Luntz: That's right. The consequences that one would not ordinarily expect to occur after an accident of that nature. The law has always had difficulty as to where to draw the line. It realises that you can't hold people responsible for ever and ever, for what happens as the result of their negligent or other conduct. Events that would not have happened 'but for' that conduct. At the beginning of the 20th century, there was a case in England, which held that defendants were liable for all the direct consequences of the act. What happened in that situation was a stevedore, a wharfie, accidentally dislodged a plank while unloading a ship. The plank fell into the hold of the ship, there was petrol vapour in the hold of the ship, the plank struck a spark, the petrol vapour ignited, the ship was destroyed. And the court in England held that those who were responsible for the acts of the wharfie were responsible for the destruction of the whole ship.
Years later, in New South Wales, in Sydney Harbour, there was a spill of oil as the result of negligence through the engineer on the ship allowing in effect the petrol tank to overflow. The oil floated on the surface, and some time later was set alight by some welding that was going on in a dry dock. And the dry dock and ships were destroyed in a fire. That case went all the way to the Privy Council, and the Privy Council held that liability was determined by the foreseeability of the harm; that if the harm was an unforeseeable consequence, then the defendant was not responsible for that consequence.
Anita Barraud: So in this case, with this young woman, this was a very unforeseeable consequence, and that sexual assault...
Harold Luntz: Well the judge held to the contrary. The judge said in fact that it was foreseeable, although those common law tests were supposedly superseded by the legislation, the Civil Liability Act.
Anita Barraud: This was in 2002.
Harold Luntz: In 2002. That legislation followed a report to the committee called the IP Committee. The IP Committee said that because of the difficulty judges were having in where to draw the line in these cases, they needed some guidance, and they proposed the guidance that was subsequently enacted in the legislation.
Anita Barraud: That Civil Liability Act concentrated in this particular judgment anyway, on the scope for liability, and also the causation.
Harold Luntz: Well the legislation says that causation needs to be determined in two parts. The first part is the ordinary 'But for' test: would it have happened but for the negligence? And in this case the judge had no difficulty saying it would not have happened, she would not have been raped but for the negligence of the railway authority, because she was handicapped in escaping from the rapist by her fractured leg. He then had to go on to consider the scope of the liability, and the Ipp Report recommended that that be a normative test, what should be done rather than any other sort of mechanical test that one could apply. And the legislation recommends that the judge give reasons why the defendant should be held liable for those consequences, rather than the loss really being left to lie where it falls, as happens in other instances.
But the judge's reasons in this case, were very perfunctory. He simply said, 'Well it was analogous to a case where you're crossing the road with your broken leg, a car comes towards you, and you can't get out of the way of the car because of your broken leg, and you suffer a further injury. And then part of the responsibility for that further injury would be attributed to the original injury that you sustained when you fell down the steps.'
But the law generally has not treated cases of deliberate wrongdoing like a rape in the same way as negligent or purely accidental events that subsequently occur.
Anita Barraud: Although I understand there was a case that bears a slight resemblance to this causation effect.
Harold Luntz: Yes, another interesting one which previously had been thought to go about as far as one could, involved a woman who was shopping in a supermarket when somebody stacking the shelves dropped a heavy parcel on her shoulder. She suffered from a painful shoulder which made it difficult for her to brush her hair. She had very long hair and in order to keep it clean and tidy, she cut her hair. This displeased her husband, they were religious, the husband said that before she cut her hair, she required his permission, and she didn't obtain that permission. The local clergyman was called in to mediate, but the marriage broke up, and in consequence of the breakup of the marriage, she developed psychiatric consequences, and the New South Wales Court of Appeal upheld liability; the supermarket was held liable for the psychiatric consequences following from the breakup of the marriage.
Anita Barraud: So that trip to the supermarket led to the breakup of her marriage, and she sued the supermarket?
Harold Luntz: That's right. Now that was before the legislation, that was at common law.
Anita Barraud: Well this recent case [of the young woman who suffered rape] there was a psychiatric element to the case as well. The young woman suffered, and is suffering, a depressive illness, according to the judge.
Harold Luntz: That's what she was truly compensated for.
Anita Barraud: And two psychiatrists on both sides, the defence and the plaintiff, agreed that there was illness as a result.
Harold Luntz: Well I'm not sure about the details because the judge mentions that the rape was not revealed to one of the psychiatrists I think, but that she was suffering from a depressive illness I think was agreed. But what was the cause of that? Whether one could attribute it back to the slip on the stairs, or whether that was due to a rape for which the railway authority should not be held responsible, was really at issue.
Anita Barraud: I understand that you call this an Adam/Eve causation. If this didn't happen, then this wouldn't have happened.
Harold Luntz: Well yes. All the troubles of the world could, if we like, be attributed to Adam and Eve: if they hadn't misbehaved in the Garden of Eden, we'd all be living peaceful, joyous lives there. So causation can be traced backwards if you simply go on a 'But for' basis to very, very early events, and similarly, any wrongful act these days has consequences that stretch into the future, like ripples in a pond: you throw a pebble into the pond, the ripples continue and continue for a long time. And the law has always had difficulty in where to draw the line: How much to hold a particular person responsible for when that person has committed a wrong of some sort.
Anita Barraud: Professor Harold Luntz. And the case may be appealed.
