State Rail Authority of New South Wales v Chu [2008] NSWCA 14 (6 March 2008)

Last Updated: 6 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
State Rail Authority of New South Wales v Chu [2008] NSWCA 14


FILE NUMBER(S):
40235/07

HEARING DATE(S):
4 February 2008

JUDGMENT DATE:
6 March 2008

PARTIES:
State Rail Authority of New South Wales (Appellant)
Yu-Mei Chu (Respondent)

JUDGMENT OF:
Hodgson JA Bell JA Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5753/05

LOWER COURT JUDICIAL OFFICER:
Goldring DCJ

LOWER COURT DATE OF DECISION:
4 April 2007


COUNSEL:
M Williams SC (Appellant)
S Norton SC/M Fraser (Respondent)

SOLICITORS:
Gillis Delaney Lawyers (Appellant)
Accentro Legal (Respondent)

CATCHWORDS:
Appeal
negligence
contributory negligence
damages
whether subsequent sexual assault compensable by defendant
novus actus interveniens
damages recalculated in part

LEGISLATION CITED:
Civil Liability Act 2002
Suitors' Fund Act 1951


CASES CITED:
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Green v Hanson Construction Material Pty Limited [2007] QCA 260
Mahony v J Kruschich (Demolitions) Proprietary Limited and Another [1985] HCA 37; (1985) 156 CLR 522
M'Kew v Holland & Hannen Cubitts [1969] UKHL 12; 1970 SC (HL) 20
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 176 ALR 411

TEXTS CITED:


DECISION:
1. Appeal allowed in part.
2. Cross-appeal allowed in part.
3. Verdict of $217,324.00 substituted for the verdict of $239,405.00, to take effect as at 4 April 2007.
4. Appellant to pay 90% of the costs of the respondent of the appeal and cross-appeal, and the respondent to have a certificate under the Suitors' Fund Act in respect of the balance of her own costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40235/07

DC 5753/05

HODGSON JA

BELL JA

MATHEWS AJA

6 March 2008

STATE RAIL AUTHORITY OF NEW SOUTH WALES v CHU

Judgment

1 HODGSON JA: I agree with Mathews AJA.

2 BELL JA: I agree with Mathews AJA.

3 MATHEWS AJA: On 29 December 2002 the respondent, Ms Chu, fell while walking down stairs at Sydenham Railway Station. She later commenced proceedings in the District Court seeking damages for injuries sustained as a result of this fall. On 4 April 2007 Goldring DCJ entered a verdict for the respondent in the sum of $239,405.00. The appellant, the State Rail Authority of New South Wales, has appealed from this judgment. A cross-appeal has also been lodged on behalf of the respondent.

Circumstances of the accident

4 The respondent was the only person to give oral evidence in the District Court. Accordingly the description of the accident comes entirely from her evidence.

5 The accident happened at about one o’clock on the morning of 29 December 2002. The respondent had spent the evening in the city. At that time she was living at Roselands, and Wiley Park was the closest railway station. There was no direct train to Wiley Park, and she needed to change trains at Sydenham. She took a train from the city and alighted at platform 6 at Sydenham Station. The Wiley Park train left from platform 2. In order to reach that platform she was required to climb the stairs from platform 6, walk across a pedestrian bridge, and then go down further steps to platform 2. It had been raining that night and both the walkway and the stairs down to platform 2 were wet and, in some places, puddled. The respondent started to walk down the stairs. When she reached a point approximately seven steps from the bottom, her left foot slipped on the steps and she fell. She immediately felt pain in her left ankle. She was unable to stand on her left leg, and had to be carried to a taxi which then drove her home. She was later found to have fractured her left ankle.

6 A number of heads of negligence were asserted by the respondent in the District Court. The most significant of these related to the yellow warning paint which had been applied to the edges of the steps, and which became dangerously slippery when wet. The respondent tendered a report from an engineer, Mr Robert Nicholson, which described the painted parts of the stairs (called “the nosings”) as being slippery and dangerous in wet conditions, and being well below the BPN reading (which relates to the coefficient of friction) than the minimum specified in the Australian Standards. Mr Nicholson expressed the opinion that the condition of the stairs was hazardous and that it was this which caused the respondent’s accident.

7 The appellant called no evidence on this issue. Accordingly the trial judge found, in accordance with Mr Nicholson’s opinion, that the accident was caused by the appellant’s negligence.

8 The appellant raised the issue of contributory negligence, relying primarily upon the respondent’s failure to use the hand rail at the time of her fall. The respondent gave evidence that she had been holding onto the rail at various stages during her descent, but had let go of it shortly before she fell. Nevertheless, she said that she had been walking very carefully, as she realised that the steps might be slippery in the wet.

9 The trial judge accepted the respondent’s evidence that she had been walking carefully. He found that there had been no failure on her part to take reasonable care for her own safety, and he therefore found against the appellant on this issue.

The Respondent’s Claim for Damages

10 Before describing the injuries the respondent was said to have suffered as a result of this fall, it is relevant to say something about her background.

11 The respondent was born in Taiwan on 16 January 1971. She is highly educated, having obtained a bachelors degree in education and a masters degree in adult education. In 1999 she commenced working as a television news reporter in Taipei. In 2002 she decided to further her career by improving her English language skills. It was for this reason that she obtained a visa to come to Australia.

12 The respondent arrived in Australia from Taiwan on 23 September 2002. She was studying English at a private college in Sydney. As indicated, she was living at Roselands, where she obtained board and lodging in exchange for child minding. Her plan was to stay in Australia for another six months or so and then return to Taiwan and resume working as a television journalist.

13 The respondent claimed that, as a result of the fall, she sustained the following injuries:

Fractured left ankle;

Injury to lower back;

Psychological disorder of a depressive kind.

The ankle injury

14 The morning after her fall, the respondent went to Canterbury Hospital where an x-ray of her left ankle showed a fracture of the lateral malleolus without displacement. The ankle, which was extremely swollen and discoloured, was placed into a wooden splint. Some days later, when the swelling had subsided, a plaster cast was applied which remained in place for about six weeks. The respondent needed the assistance of crutches for approximately three months after the accident.

15 The respondent said in her evidence that so long as she remained stationary the ankle caused her few problems. But she said that if she walked for any length of time, it would swell and become painful. She described herself as walking very slowly, like an old woman, and needing frequent rests.

16 The respondent consulted an orthopaedic specialist, Dr Guirgis for medico-legal purposes, on 6 August 2005. Dr Guirgis’s report, which was before the trial judge, referred to complaints of pain, stiffness and weakness caused by prolonged standing. The respondent also described difficulty with going up and down steps. She expressed frustration about her lack of agility. Dr Guirgis considered that the respondent was unfit for activities that would apply stresses to her left ankle. He recommended conservative treatment such as acupuncture and/or physiotherapy.

17 The trial judge dealt with the ankle injury briefly. He accepted that a restriction of mobility, consequent upon the fracture of the ankle, was “clearly demonstrated.” Moreover he found that this injury would probably prevent the respondent, indefinitely, from doing the same work as she had done before she came to Australia.

Injury to lower back

18 The respondent claimed that she had injured her lower back in the fall, and that she had suffered intermittent back pain ever since. She received no treatment for this condition. Indeed she apparently made no complaint of back pain to any of the practitioners who treated her in relation to her ankle. The first complaint appears to have been made to Dr Giurgis, whom she saw for medico-legal purposes in August 2005.

19 Given this background, the trial judge was not satisfied that any back injury sustained by the respondent resulted from the fall on 29 December 2002. He therefore declined to award any damages under this head. His finding in this regard is challenged in the respondent’s cross-appeal.

Psychological Injury

20 The respondent described herself, before the accident, as believing that she was “a very lucky girl” because she had received a good education, she had a very good job and highly supportive friends. She had every confidence in the future. All this changed, she said, after the fall. The pain and immobility in her ankle caused her to suffer immediate depression. She described it in evidence as a “very terrible time” and said that she could only express about one-tenth of the hardship she had been through. Within a matter of days after the accident, she said, her hair started to go grey. She tendered “before” and “after” photographs in support of this assertion.

21 The respondent said in evidence that she had great difficulty in concentrating. She found herself upset and frustrated. She had lost her self confidence and had no hope for the future. Whereas she had previously been outgoing and sociable she had become withdrawn and she shunned social occasions.

22 The situation relating to the respondent’s claim for psychological injury is complicated by an event which occurred about five or six weeks after the accident, when the respondent’s leg was still in plaster. A man who had been assisting the respondent, taking her around and speaking English with her, invited her to his home. He took her into his bedroom and would not let her leave. He took her mobile phone and purse and put them on a high shelf, out of her reach. He forced her to have oral and vaginal intercourse and subjected her to physical beatings. It was many hours before she was able to leave.

23 Not surprisingly, this traumatic incident had a significant impact upon the respondent’s already damaged psychological state. The respondent conceded as much during the course of her cross-examination. However, she did not mention the assault to Dr Law, a consultant psychiatrist, whom she first saw for medico-legal purposes in January 2005. When she next saw Dr Law, in May 2006, she told him about this incident. She said that she had suffered from broken sleep and bad dreams for some months afterwards, but believed she had by then (May 2006) recovered from her emotional turmoil.

24 It was the respondent’s case before the District Court that the sexual assault was a direct and foreseeable result of her fall at Sydenham Station. The trial judge accepted this proposition. He found that the respondent’s reduced mobility made her more vulnerable to a sexual predator and hindered her capacity to escape. The trial judge found that this was a foreseeable consequence of the appellant’s breach of duty. Accordingly, the damages awarded to the respondent for psychological injury included compensation for the sexual assault and its aftermath.

25 The trial judge’s findings in respect of this matter have been challenged on appeal and I shall be returning to discuss it later. In the meantime I turn to the trial judge’s findings in relation to the various heads of damages claimed by the respondent.

26 First, in relation to non-economic loss: the trial judge, having regard to the evidence relating to the respondent’s physical injury and psychological disorder, assessed her non-economic loss at 30% of a most extreme case. This produced an award of damages under this head of $98,000.00.

27 The respondent had sought damages for domestic assistance, both past and future. The trial judge was unable to conclude that any assistance required by the respondent crossed the threshold provided in Section 15(3) of the Civil Liability Act 2002. Accordingly, he declined to make any award under this head. This finding has not been challenged on appeal.

28 In addition to allowing past and future out of pocket expenses, which have not been challenged, the trial judge awarded $75,000.00 for past economic loss and $54,060.00 for future loss of earning capacity.

29 The award of $75,000.00 for past economic loss was calculated as follows. The respondent gave evidence that she had received A$500.00 from her job as a television reporter in Taiwan. The trial judge found that, by virtue of the accident, the respondent had been fully incapacitated from work for a period of three years which, according to his calculations, amounted to $75,000.00. The appellant has challenged the trial judge’s findings on this matter.

30 In relation to future economic loss, the trial judge found that, by reason of the respondent’s physical injuries, she would probably be prevented indefinitely from working as a television reporter as she had done before she came to Australia. On this basis he assessed a loss of earnings of $150.00 per week “for the remainder of her life.” His Honour used this figure as the basis for a calculation which resulted in an award of $54,060.00. His findings in this respect have been challenged by both the appellant and the respondent. The respondent urged that the trial judge erred in finding that the respondent suffered any future economic loss at all. The respondent pointed out that there was a serious miscalculation in reaching the figure of $54,060.00 and that the amount which should have been awarded under this head was significantly greater.

Grounds of Appeal

31 Before dealing with the specific grounds of appeal, it is appropriate to say something more about the trial judge’s findings that the respondent’s fall was caused by the negligence of the appellant.

32 The trial judge dealt with the issue of negligence relatively briefly. He referred to the plaintiff’s evidence that she had returned to the scene of the accident in October 2004, where she took a number of photographs. She said that the condition of the stairs had not changed significantly since the accident, a matter which the trial judge accepted.

33 The trial judge then went on to discuss the expert report of Mr Nicholson. That report showed that the unpainted parts of the steps had a high BPN reading and were not slippery when wet, whereas the yellow nosings had a low BPN reading, and were slippery and hazardous in wet conditions. This could readily have been avoided, Mr Nicholson’s report said, by the simple process of adding carborundum or similar anti-slip grains to the yellow paint.

34 The trial judge referred to the appellant’s failure to call any evidence as to the circumstances of the accident or as to the state of the stairs at the time. He said that he inferred from this that any evidence available to the appellant would not assist its case. He accordingly found negligence established

Grounds 1 to 3: negligence

35 The first three grounds of appeal relate to the trial judge’s findings on negligence. They are in the following terms:

1. The trial judge erred in finding that the respondent was not challenged on the evidence that she did not notice any significant difference in the condition of the stairs between October 2004 and the date of the accident.

2. The trial judge erred in failing to have regard to the condition of the stairs and the lack of evidence of such a condition as at the time of the accident as opposed to considering the condition of the stairs as at October 2004.

3. The trial judge erred in accepting the evidence of Mr Nicholson whose evidence was based on the condition of the stairs as at October 2004 and thereafter, and not on the condition of the stairs as at the date of the accident.

36 All these grounds relate, in one way or another, to the condition of the stairs on 29 December 2002, and particularly whether they had materially changed by October 2004 when the respondent returned and photographed the stairs in the area where she fell. One of these photographs, identified as photograph number 6, showed that there were significant areas where the yellow nosings had worn away, in some places almost completely. The respondent in her evidence described the condition of the yellow paint on the night of her accident as “similar” to that depicted in photograph number 6. The only challenge to the respondent on this issue was when she was asked in cross-examination: “when you were asked yesterday if the yellow strips were the same as what they were 18 months later, you don’t really know, do you?” to which she answered, “I think very similar”. It was this “challenge” which gave rise to the first ground of appeal. Given that the respondent’s evidence on this issue was never contradicted, I can find no substance in this ground.

37 In support of the second ground, Mr Williams SC, for the appellant, submitted that the yellow nosings on the stairs depicted in photograph number 6 were so worn that the trial judge should not have concluded that the respondent slipped on the yellow nosing as opposed to the untreated concrete. He further submitted that the trial judge erred in using the appellant’s failure to call evidence as strengthening any inference of negligence. In this regard Mr Williams pointed out that the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 can only avail a party who has already adduced sufficient evidence to give rise to an inference in his or her favour. The respondent in this case had failed to do so, according to this submission.

38 However there was, in my view, ample evidence from which an inference of negligence could be drawn. The respondent said, in her evidence in chief, that her foot slipped on the yellow line as opposed to the unpainted concrete. She was not cross-examined about this. Moreover photograph number 6 does not purport to show the precise area where the respondent had her fall. Other photographs taken by the respondent in October 2004, which include the area of the fall, apparently show relatively unworn areas of yellow paint in that area. The respondent was wearing joggers at the time of the accident. The mere fact that her foot slipped on the step would tend to support the proposition that she was on the painted slippery portion at the time, rather than the unpainted non-slippery part.

39 This would be sufficient to dispose of grounds 1 to 3 insofar as those grounds related to matters raised before the trial judge. However the appellant raised a further matter which was not argued before his Honour, nor directly raised in the grounds of appeal, although ground 3 might be interpreted so as to cover this issue. Put simply, it is this. By the time Mr Nicholson conducted his tests on the surface of the steps, in 2005, the yellow nosings on the steps had been repainted. His report therefore related to the state of the newly painted surface, rather than the surface as it existed in December 2002 and October 2004. The appellant submitted that there was nothing to connect the surface upon which the respondent slipped, even if it was the painted portion, with the newly painted slippery surface described by Mr Nicholson.

40 As already indicated, this matter does not appear to have been raised before the trial judge. As Ms Norton SC, for the respondent, pointed out, the appropriate occasion to do so was when Mr Nicholson’s report was first tendered into evidence. It would have been open to the appellant’s representatives to object to the admissibility of the report on the basis that it was irrelevant to the respondent’s case, in that the stairs had been repainted since the respondent’s accident. No such objection was taken. Once the report was admitted into evidence, the trial judge was entitled to use it as showing that the yellow paint used by the appellant on the nosings of its steps became dangerously slippery when wet. In the absence of evidence from the appellant that, after the respondent’s accident, it had replaced previous non-slippery paint with the slippery paint found by Mr Nicholson, the trial judge was entitled to assume that the previous paint bore the same qualities as the newly applied paint.

41 These grounds have not in my view been made out.

Grounds 4 and 5; Contributory Negligence

42 These grounds of appeal go to the issue of contributory negligence. They are in the following terms:

4. The trial judge erred in finding that the respondent did not contribute to the negligence by failing to keep herself steadied on stairs that she knew were potentially slippery by failing to maintain a position on the stairs whereby she could prevent herself from falling by gripping onto the handrail.

5. The trial judge erred in finding that the respondent was taking care as she negotiated the said stairs.

43 The appellant urged, in support of these grounds, that the trial judge erred in finding that there was no contributory negligence notwithstanding the respondent’s failure to hold onto the handrail at the time of her fall. This was a situation, the appellant submitted, where the respondent knew or should have known that the stairs were slippery when wet. In support of this submission, Mr Williams referred us to Green v Hanson Construction Materials Pty Limited [2007] QCA 260, where the Queensland Court of Appeal found that a plaintiff who fell while walking down stairs was guilty of contributory negligence in that she did not avail herself of the handrail provided. The court assessed her contributory negligence at 30%.

44 Before discussing this submission I should refer to the evidence as to the respondent’s knowledge of the state of the steps at the time of the accident. The photographs taken in 2004 showed that there were prominent painted signs at the top of each flight of steps saying “mind your step.” More pertinent to this issue, there was a white sign attached to the handrails at the top and the bottom of each set of stairs, warning that the steps might be slippery when wet. The respondent said that she did not see these signs before her accident. These signs were by no means prominent, and in my view there was no basis for fixing the respondent with constructive knowledge of the fact that there was any particular problem with these steps when they were wet.

45 Ms Norton submitted that the respondent’s situation was different from that of the plaintiff in Green. In that case, the plaintiff did not use the handrail at any time before her fall. In the present case the respondent was using the handrail in the earlier parts of her descent. Her fall occurred immediately after she took her hand off the railing. She was not asked why she let go of the railing. It is possible that she had a reason for doing so: the matter was never explored. Nor was there evidence as to whether it was to be a momentary release or a longer one. The respondent insisted that she was being “very careful”. She was not to know of the particular hazard presented by the highly slippery painted nosings on the steps.

46 In these circumstances I consider that the judge’s findings on contributory negligence were well open to him on the evidence. I would dismiss these grounds of appeal.

Grounds 6 and 7: the sexual assaults

47 These grounds relate to the trial judge’s findings in relation to the sexual assault committed on the respondent some weeks after the accident. They are in the following form:

6. The trial judge erred in finding the respondent would not have suffered a sexual assault if she had not been injured on the day of the alleged accident.

7. The trial judge erred in finding that the sexual assault would be a foreseeable consequence of the appellant’s breach of duty.

48 The trial judge’s finding that the appellant was responsible for the sexual assault and its aftermath was based upon the principles set out in s 5D of the Civil Liability Act 2002. Subsection (1) provides as follows:

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).

49 The trial judge quoted this section in his judgment. He then went on to consider the matters referred to in (a) and (b) and to resolve them in favour of the respondent. In relation to “factual causation”, his Honour found that the respondent would not have suffered the sexual assault had she not been injured and immobilised as a result of her fall. He then went on to consider the “scope of liability” issue. In finding this matter in favour of the respondent, the trial judge used the analogy of a person whose mobility has been impaired in an accident and who is subsequently struck by a car whilst attempting to cross the road. In that situation, his Honour found, the negligence of the person who caused the initial injury will also have caused the subsequent injury, and that person should be liable for it. In common law terms, his Honour said, the sexual assault was a foreseeable consequence of the appellant’s breach of duty.

50 The appellant submitted that his Honour did not address the correct questions when he dealt with this issue. The principles should more correctly have been expressed in terms of causation and foreseeability. We were referred to Mahony v J Kruschich (Demolitions) Proprietary Limited and Another [1985] HCA 37; (1985) 156 CLR 522 where the court said, at page 528:

“A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor’s negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens”: M’Kew v Holland & Hannen & Cubitts [1969] UKHL 12; 1970 SC (HL) 20 at p 25.

51 In fact the trial judge did address the issues of causation and foreseeability, although he might not always have referred to them in those terms. The real question is whether he erred in finding those matters in favour of the respondent.

52 Dealing first with the issue of causation: the appellant submitted that the trial judge overstated the evidence linking the respondent’s injury with the subsequent sexual assault. It was not her lack of mobility which principally constrained her from leaving the assailant’s room, according to the evidence. Other factors were much more significant, particularly the presence downstairs of the assailant’s parents, and the fact that the assailant had taken her wallet and telephone and she did not want to leave without them.

53 There is considerable strength in this submission. From a factual point of view there was little evidence to support his Honour’s finding on the causation issue. It was a matter which the respondent was required to prove, and in my view the preponderance of evidence was that the assault would probably have occurred whether or not she had been injured in the fall.

54 There were, in any event, other reasons for finding against the respondent on this issue, even if the evidence had favoured the respondent’s submissions. For the sexual assault was plainly, in my view, a novus actus interveniens which broke the chain of causation. As McHugh J said in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 429-430:

“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”.

55 The conduct of the respondent’s assailant was clearly a “free, deliberate and informed act.” It is questionable whether it was intended to exploit the respondent’s immobility. But it was certainly the type of conduct which would have broken the chain of causation.

56 This issue was apparently not raised before the trial judge. Nor was the fact that the sexual assault upon the respondent was a criminal offence. In this regard Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 176 ALR 411 is 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 is no suggestion of a special relationship between the appellant and the respondent which would negative this general proposition.

57 For all these reasons there was, in my view, a clear break in the causal link between the injury suffered by the respondent as a result of her fall at the appellant’s station, and the injury she suffered as a result of the sexual assault some weeks later. I would find ground 6 made out.

58 It is strictly unnecessary in these circumstances to deal with the issue of foreseeability raised by ground 7. However I would similarly have found against the respondent on this issue. In my view 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. Accordingly, both these grounds of appeal have been made out.

59 The next question is what flows from this. There was no serious attempt before the trial judge to differentiate the psychological injury caused by the respondent’s initial fall from the injury occasioned by the subsequent sexual assault. On one view of the matter this might provide good reason for sending the matter back to the District Court for further evidence to be taken and a reassessment of damages to be made. However we were told that the respondent has returned to Taiwan and is currently unable to obtain a visa to enter Australia. It was therefore suggested that, if we were to find for the appellant on this issue, we should ourselves reassess the respondent’s damages. Mr Williams did not cavil with this approach. Accordingly I think it is appropriate that we should do so. I shall return to discuss the damages issue shortly. In the meantime I turn to the remaining grounds of appeal.

Ground 8: non-economic loss

8. The trial judge erred in finding that the respondent’s non-economic loss was 30% of a most extreme case.

60 The whole issue of the respondent’s non-economic loss will require reassessment as a result of my findings under grounds 6 and 7. Accordingly this will be discussed later.

Grounds 9 and 10: past economic loss

9. The trial judge erred in finding that the Respondent suffered a past economic loss.

10. The trial judge erred in assessing past economic loss and failing to have regard to the fact that the respondent had returned to Taiwan and chose to return to Australia where she was not permitted to work after the said accident.

61 The trial judge, as already mentioned, awarded the respondent $75,000.00 for past loss of earnings on the basis of a wage loss of $500.00 per week for three years. This award was based on his Honour’s finding that the respondent “would not have been able to earn anything in either Australia or Taiwan for a significant period after the accident.” Unfortunately, in the transcript of his Honour’s judgment contained in our appeal books, there is an unexplained gap in the paragraph dealing with this issue. His Honour did however refer to the fact that the respondent chose to remain in Australia until the outcome of the proceedings, rather than return to Taiwan where she might well have obtained employment.

62 The respondent’s evidence was that her employment as a television journalist before she came to Australia yielded her the equivalent of A$500.00 per week. If the accident had not occurred she would have returned to Taiwan in early or mid 2003, and would have resumed her previous employment. The trial judge allowed the respondent a past wage loss of $500.00 over a three year period. Given that, by the time of judgment, over four years and three months had elapsed since the accident, this left a period of 15 months during which the respondent received no compensation at all under his Honour’s ruling. No reason was given for leaving this gap. I can only assume that it was done because the trial judge was not satisfied that the respondent had established an earning loss for the whole period.

63 The trial judge’s award for past wage loss was based upon the proposition that, by reason of her injuries, the respondent was incapacitated from any form of employment, either in Australia or Taiwan, for “a significant period” after the accident. There was ample evidence to support this finding. In the circumstances I can find no error in his Honour’s award under this head. In my view these grounds are not made out.

Ground 11: Future economic loss

11. The trial judge erred in finding that the respondent suffered a future economic loss.

64 As already indicated, the trial judge found that the respondent’s physical injuries would probably prevent her indefinitely from doing the same work as a television journalist which she had done before coming to Australia. He therefore allowed her damages on the basis of an earning loss of $150.00 per week “for the remainder of her life”. He then did the following calculation: 150 x 0.424 x 85%. This produced an amount of $54,060.00, which he included in the respondent’s damages.

65 Both parties have appealed from the trial judge’s finding on this issue. The appellant submits that there was no basis for his Honour’s finding that the respondent suffered a permanent impairment as a result of her fall which would sound in any future loss of earning capacity. The respondent submitted that there was an error in his Honour’s calculations. A correct calculation should have yielded a much higher figure.

66 I shall deal first with the appellant’s submissions on this issue. These relied on the medical reports which were in evidence, and suggested that they disclosed, at most, that the respondent suffered disabilities for a closed period after the accident. It was submitted that there was no basis on the medical evidence to find that the respondent would be incapacitated from her pre-injury employment for the rest of her working life.

67 The respondent said in evidence that it would be “impossible” for her to return to her position as a news presenter in Taiwan. As a television journalist she was required to work under great pressure and make herself available 24 hours a day. A self-confident personality was essential. She said that she would be unable to perform the job both for physical and emotional reasons. She walked slowly, tired easily, and was likely to break down under pressure.

68 It was put to the respondent in cross-examination that it was only her emotional problems which prevented her from returning to this employment, and that they arose from the sexual assault in 2003 rather than from the fall in December 2002. The respondent disputed both these propositions, saying that it was her physical condition which primarily prevented her from returning to her previous employment.

69 The trial judge clearly accepted the respondent’s evidence on this matter. It was on the basis of the respondent’s continuing physical disabilities that he found that she was entitled to compensation for future economic loss.

70 The trial judge did not directly refer to the medical evidence. However he had before him reports from Dr Guirgis tendered by the respondent, and Dr Millons tendered by the appellant. Dr Guirgis’s principal report, dated 6 August 2005, referred to the respondent’s continuing complaints arising from the injury to her ankle. These included increased pain on prolonged standing, difficulty going up and down steps and on uneven ground, and nervousness about the stability of her left ankle. Dr Guirgis noted that there was scarring within the anterolateral collateral ligament complex in the respondent’s left ankle. He considered that she remained unfit to be involved in activities which would apply stresses to the ankle. In a further report dated the same date, also sent to the respondent’s lawyer but presumably for a different purpose, Dr Guirgis expressed the opinion that the respondent’s injury resulted in a 25% permanent loss of the efficient use of her left leg below the knee level as compared to a most extreme case of a leg injury. In a third report of the same date he expressed the view that the respondent had obtained maximum medical improvement and that her condition would be unlikely to change substantially in the future.

71 Dr Millons’s report, dated 14 March 2006, was based on an examination of the respondent the previous day. He expressed the opinion that the respondent had made a reasonably good recovery from her accident and that there was not “too much untoward going on.” He said that there might be some minor loss of mobility and agility through the ankle but this would not preclude her from returning to the workforce. In the long term he said he could see no reason why the respondent could not go back to teaching or working as a journalist should she wish to do so.

72 His Honour clearly accepted the evidence of the respondent as to her continuing disabilities, and the opinion of Dr Guirgis that her condition had stabilised. Insofar as that resulted in findings which were contrary to Dr Millons’ opinions, the trial judge did not give reasons for preferring one over the other. Indeed he referred to none of the medical reports when discussing the respondent’s ankle injury. It would have been preferable for him to have given his reasons on this matter. However, given that there was ample evidence to support his ultimate finding, I would not use this as a basis for overturning his ruling on this matter.

73 Accordingly I would find the appellant’s ground of appeal not made out.

74 I turn now to the cross-appeal on this issue. The cross appellant seeks to have the trial judge’s award of future economic loss recalculated. Both parties agree that his Honour used an incorrect multiplier which produced an inappropriate result. The cross appellant concedes that she is entitled only to a loss of earnings for the remainder of her working life, namely to the age of 65. That would allow $150.00 per week for 29 years. On that basis the correct multiplier should be 809.6, rather than the 424 used by the trial judge. Applying the correct multiplier, and allowing for vicissitudes of 15%, the total future economic loss should have been $103,224.00 rather than the $54,060.00 calculated by his Honour.

75 The cross respondent has not argued against this reassessment. Accordingly I would allow the first ground of the cross-appeal and increase the award for future economic loss to $103,224.00.

Ground 12:

12. The trial judge erred in failing to give adequate reasons for rejecting the appellant’s submissions in relation to the respondent’s credit.

76 The appellant submitted that the trial judge made no specific findings in relation to the respondent’s credit notwithstanding that it had been addressed upon in relation to several aspects of her evidence. However as Ms Norton pointed out, the trial judge did not accept all of the respondent’s evidence. Certainly he did not advert explicitly to some of the respects in which the respondent’s credit was sought to be impugned. However the respondent had adequate explanations in respect of many of these matters. The appellant called no evidence to refute the respondent on any matter of relevance. Finally, this ground of appeal does not seek to address the basis upon which the trial judge reached any of his specific findings or rulings. It raises a matter which is so general that, even if it were made out, it could have no effect upon any significant finding made at trial.

77 In the circumstances I consider that there is no substance in this ground.

78 I turn now briefly to the respondent’s cross-appeal.

The Cross-Appeal

79 Two grounds were raised in the respondent’s notice of cross-appeal. The first, relating to his Honour’s method of calculating the respondent’s future economic loss, has already been dealt with. The second ground was in the following terms:

2. The trial judge erred in failing to find that the back injury suffered by the respondent was caused by the accident.

80 The trial judge accepted that the respondent suffered a degree of back pain, although he noted that this had been of less concern to her than the problems with her ankle. The real question was whether it was the fall at the appellant’s station which resulted in the respondent’s back injury. In this regard the trial judge placed considerable emphasis upon the fact that the respondent’s first known complaint of back pain was made when she saw Dr Guirgis, well over two years after her fall. The appellant had submitted that the respondent’s back injuries might have resulted from some other cause, such as the beating she received following the sexual assault. On the whole of the evidence his Honour concluded that he could not be satisfied on the balance of probabilities that the respondent’s back injury arose from her fall in December 2002.

81 In my view his Honour’s finding on this matter was well open to him on the evidence. I would find that this ground has not been made out.

Summary of Findings on Appeal and Cross-Appeal

82 It follows from the above that I would allow grounds 6 and 7 of the appeal, relating to the sexual assault on the respondent. I would also allow the first ground of cross-appeal, relating to the calculation of the respondent’s future economic loss. In all other respects I would dismiss both the appeal and the cross-appeal.

Reassessment of Damages

83 The respondent’s claim for damages therefore requires to be reassessed in these two respects. The claim for future economic loss is a simple re-calculation, as discussed in para [72] above.

84 The sole remaining matter relates to the respondent’s claim for non-economic loss. This requires a reassessment upon the basis that the sexual assault and its aftermath are not compensable at the hands of the appellant.

85 It is, as already indicated, very difficult to separate the psychological injury suffered by the respondent as a result of her fall and her resultant immobility, from that which attended and followed the sexual assault. The respondent was referred by her lawyers to a consultant psychiatrist, Dr Law. She saw him first in January 2005 at which time she made no mention of the sexual assault. Dr Law noted that the respondent was very much pre-occupied with her plight. She suffered from a pervasive sense of low mood and had a feeling of foreshortened future. The doctor considered that the respondent was suffering from a low grade and chronic depression following her fall and injury at the appellant’s railway station. He said that she was suffering low mood, loss of self-esteem and self-confidence, and that she was likely to continue to suffer psychologically in the future. In a letter to the respondent’s solicitors of 20 January 2005 Dr Law assessed the respondent’s permanent psychiatric impairment at 7% of the most serious case.

86 The respondent again saw Dr Law on 16 May 2006. He reported to her solicitors on 19 May. On this occasion she told him about the sexual assault in February 2003. She told him that for some months following the incident she had suffered from broken sleep and bad dreams but she believed that by that stage she had recovered.

87 Dr Law had been asked to assess the respondent’s permanent psychiatric impairment having regard to the American Medical Association’s Guides. He expressed the view that the respondent suffered an overall impairment percentage of 25% of the most extreme case.

88 The appellant tendered a report dated 9 March 2006 of Dr Revail, consultant psychiatrist. The respondent had told him that she thought her fall had changed her life. She said that she was anxious and very fearful about her future. She told Dr Revail about the sexual assault, at which point she became visibly distressed. Dr Revail gave the following diagnosis: “It is possible Ms Chu suffers from a mild adjustment disorder with anxious mood, but I think that there is more to her history.” He doubted whether she was depressed and expressed the view that when the case was finalised and the respondent returned to Taiwan she would return to the workforce.

89 In the light of the evidence relating to the respondent’s physical and psychological injuries, the trial judge assessed her non-economic loss at 30% of a most extreme case. This was challenged by the appellant who suggested that 22% or 23% would be more appropriate in the circumstances. However on the basis that the 30% included compensation for the sexual assault and its aftermath I consider that this was a reasonable assessment. The exercise that we are now required to perform is to notionally remove the sexual assault and its aftermath from the compensable sequelae of the respondent’s fall, ensuring at the same time that the percentage thus reached is appropriate to her overall circumstances.

90 The sexual assault was an extremely traumatic event. It would without doubt have exacerbated the respondent’s already vulnerable psychological condition. However I think that, in the overall scheme, it is the respondent’s physical disabilities and the restrictions on her mobility and agility which have been primarily responsible for her psychological problems. It is the respondent’s physical disabilities which are likely to prevent her from ever again engaging in her chosen career as a television journalist. This not only sounds in future economic loss, but it is also a serious impediment to her general and permanent enjoyment of life. Accordingly, I would ascribe a relatively low proportion of her psychological injury to the sexual assault.

91 It is to be remembered also that his Honour’s assessment of 30% was based both on the respondent’s physical and psychological injuries. The sexual assault was relevant only to her psychological injury.

92 In all the circumstances I consider that an overall downward adjustment of 5% would be appropriate to take account of the removal of the sexual assault from the respondent’s compensable damages. This produces a finding that the respondent’s non-economic loss is 25% of a most extreme case.

93 The next step is to make the appropriate adjustment according to s 16 of the Civil Liability Act. The sliding scale set out in s 16(3) means that a 5% reduction in the overall proportion leads to a much greater reduction in the amount allowable under this head: at 30%, the respondent was entitled to 23% of the maximum amount awardable. At 25%, she is entitled to only 6.5% of the maximum amount. As at April 2007 the maximum amount under s 16 was $427,000.00. 6.5% of this figure is $27,755.00. This is the amount which, in my view, should be substituted for the $98,000.00 awarded by his Honour under this head.

94 All that remains is to adjust the figures according to these findings. The re-calculation of the respondent’s future economic loss results in an increase of $49,164.00. The reassessment of her non-economic loss requires a reduction of $71,245.00. The overall reduction will therefore be $22,081.00.

Conclusion

95 I would therefore allow both the appeal and the cross-appeal in part, and substitute for the trial judge’s verdict a finding that there be a verdict for the respondent in the sum of $217,324.00.

Costs

96 The overall result is that there has been a slight reduction, in the order of 10%, in the amount awarded to the respondent. Most of the matters raised by the appellant were dismissed. In all the circumstances I would order that the appellant pay 90% of the respondent’s costs.

Orders

97 I propose the following orders:
1. Appeal allowed in part.
2. Cross-appeal allowed in part.

3. Verdict of $217,324.00 substituted for the verdict of $239,405.00, to take effect as at 4 April 2007.

4. Appellant to pay 90% of the costs of the respondent of the appeal and cross-appeal, and the respondent to have a certificate under the Suitors’ Fund Act in respect of the balance of her own costs.

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LAST UPDATED:
6 March 2008