Mullins, Gerard; Griffiths, Susan --- "Intentional Torts and the Civil Liability Legislation" [2015] PrecedentAULA 58; (2015) 130 Precedent 15

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INTENTIONAL TORTS AND THE CIVIL LIABILITY LEGISLATION

By Gerard Mullins and Susan Griffiths^[1]

The legislation passed by the states and Commonwealth to reform the common law following the publication of the Ipp Report^[2] was largely designed to limit awards of damages for personal injury or death resulting from negligent conduct, whether the claim was brought in tort, contract, under statute or any other cause of action. The new state and Commonwealth legislative regimes were similar in some respects but substantially different in others. This article addresses the respective statutory regimes, summarises their operative reach insofar as they relate to intentional torts, and briefly analyses the authorities that have sought to interpret the legislation.

Generally speaking, intentional torts to the person are those which involve direct, intentional or wilful invasions of the physical and mental integrity of the person.^[3] The three major intentional torts include assault, battery and false imprisonment. The morality of imposing liability on a wrongdoer to compensate the victim of an intentional tort is readily apparent: the intentional infliction of harm is ordinarily unacceptable conduct and the wrongdoer compensating the injured person for loss suffered is both just and appropriate.

LEGISLATION

Each state legislature approached the implementation of the Ipp Report recommendations in a different way. The majority excluded intentional acts to cause injury or death and acts involving sexual misconduct from the operation of the legislation and therefore from the limitations of awards of damages.

Careful consideration should be given to the specific applicable law when considering whether to plead an intentional tort or to include the claim in the broader concept of negligence. Set out below is a brief summary of each state’s position in respect of the application of the legislation to intentional torts.

The operation of the Civil Liability Act 2002 (NSW) (NSW Act) is largely governed by the application of s3B. Section 3B(1) details matters excluded from the application of the NSW Act while s3B(2) details the provisions of the NSW Act which apply to motor vehicle accidents. Section 3B(3) provides further types of incident that may be excluded from the application of the Act by way of regulation. Significantly, s3B(1)(a) excludes application of the provisions of the NSW Act from civil liability in respect of ‘an intentional act that is done with intent to cause injury or death’. (However, s3B(1) was amended on 20 June 2006 to provide that in relation to claims based on incidents that consisted of ‘an intentional act done with the intent to cause injury or death’, the various sections limiting damages for gratuitous attendant care or domestic services would apply.)

Section 44 in Part X (Negligence) of the Wrongs Act 1958 (Vic) provides that the Part applies to any claim for damages resulting from negligence. ‘Negligence’ is defined exclusively as the failure to exercise reasonable care, whether the claim is brought in tort, contract, under statute or otherwise. Section 28C(2)(a) in Part VB (Personal Injury Damages) provides that awards for damages are excluded where the acts causing the injury are intended to cause death or injury, or involve sexual assault or sexual misconduct.

Section 4 of the Civil Liability Act 2003 (Qld) provides, subject to s5, that the provisions of the Qld Act will apply to any claim for injury or damage. Irrespective of the cause of action sued upon, the damages provisions (that is, limits on compensation) will apply to ‘personal injury damages’ although exemplary, punitive or aggravated damages (otherwise abolished) can be awarded for intentional acts done with intent to cause personal injury and unlawful sexual assault. As to the liability provisions, any cause of action involving the discharge of a duty to exercise reasonable care will be caught by the legislation but causes of action that do not contain such an obligation are exempt.

The liability provisions of the Civil Liability Act 2002 (WA) generally only apply to causes of action involving a duty to exercise reasonable care. However, s3A excludes damages for personal injury suffered as a result of acts intended to cause personal injury, or intentional acts which are either sexual offences under the Evidence Act 1936 (WA) or unlawful sexual conduct.

Section 4 of the Civil Liability Act 1936 (SA) provides that the Act applies to the determination of liability in the assessment of damages for harm. The concepts of ‘harm’ and ‘damages’ are generally defined broadly, resulting in a relatively wide application of the Act. However, the liability provisions generally only apply where there is alleged a duty to exercise reasonable care.

Similarly, the Civil Liability Act 2002 (Tas) provides that the liability provisions only apply where the alleged cause of action involves a duty to exercise reasonable care. Section 3B, however, provides that the Act in its entirety does not apply to civil liability based upon acts intended to cause death or injury, actions that are sexual assault or sexual misconduct.

Section 41 of the Civil Law (Wrongs) Act 2002 (ACT) applies the provisions of the Act to any claim for damages for ‘harm’ resulting from ‘negligence’. Again, generally, the liability provisions only apply to causes of action where a duty to exercise reasonable care is alleged.

Section 4 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT) provides that the Act applies to all ‘civil claims for damages for personal injuries’ whether those claims arise under common law or statute.

JUDICIAL CONSIDERATION

The plaintiff in McCracken v Melbourne Storm Rugby League Football Club^[4] was a rugby league footballer injured as a result of a ‘spear’ tackle. Hulme J observed that the plaintiff asserted that the actions of the second and third defendants were ‘intentional and done with the intent to cause injury’ with an eye to the provisions of s3B of the NSW Act. The defendants argued, relying on the second reading speech of the Premier when introducing the Bill, that the exception was designed to apply only to criminal conduct or perhaps criminal conduct and sexual misconduct. His Honour, however, concluded that no reasonable interpretation of those words could limit them to conduct which was criminal. His Honour considered that the words should be given their ordinary English meaning.^[5]

On appeal to the NSW Court of Appeal, the point became moot because the parties agreed that the relevant applicable law was Victorian law. Hulme J ultimately found for the plaintiff in McCracken on the grounds of negligence. The Court of Appeal observed that High Court authority^[6] supported the proposition that negligently inflicted injury to the person can, at least in some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence. Ipp JA observed that it was ‘not without significance’ that in McNamara v Duncan,^[7] a case involving an injury to a player during a game of Australian Rules football, the player based his cause of action on trespass to the person and not negligence.

In White v Johnston,^[8] the NSWCA considered circumstances where a patient alleged that treatments provided by a dentist were unnecessary and ineffective and thereby constituted assault. The primary judge found that the dentist had no therapeutic purpose in performing the treatment and had failed to prove that the patient’s consent was valid. Damages were assessed on the basis that the Civil Liability Act 2002 (NSW) did not apply. Leeming JA observed that the question posed by s3B(1)(a) has two limbs: the action involved must be an intentional act with intent to cause injury or death. His Honour observed that it does not follow that because an intentional tort is alleged and made out that there was also an ‘intent to cause injury’. It was not a necessary element of assault that the defendant intended to injure the plaintiff.^[9]

On a slightly different point, in Houda v New South Wales,^[10] a plaintiff claimed damages for false imprisonment, wrongful arrest, malicious prosecution and assault. The trial judge^[11] considered that the actions were intended to cause injury in the sense of depriving the plaintiff of his freedom, restraining with force his mobility, causing him humiliation and damaging his reputation, thereby causing him emotional upset and trauma. His Honour considered that ‘injury’ in s3B was not limited to bodily injury, but extended to all forms of injury. As a consequence, s3B applied and the claim was excluded from the restrictions imposed by the Act. Similarly, by reason of operation of s11A and the definition of ‘injury’, wherein it expressly refers to personal injury, the limitations imposed by those provisions would not apply.

In Bujdoso v New South Wales,^[12] a prisoner was assaulted by a number of unknown assailants while incarcerated in NSW. The claim against the state was based on its failure to take care to ensure that the plaintiff was not injured by the violent acts of another. The trial judge found the reference to ‘civil liability in respect of an intentional act’ in s3B(1)(a) was applicable to the plaintiff’s claim and the state was thereby obliged to pay damages assessed outside the boundaries of the NSW Act.

On appeal to the NSW Court of Appeal, the Court unanimously overturned the trial judge’s decision and concluded that the words ‘civil liability in respect of an intentional act...’ within s3B(1)(a) required that the liability be in respect of such an act, not merely that the liability be for an injury caused by such an act; so that the words did not apply where the liability is for negligence in failing to prevent injury being caused by an intentional act of some other person or persons.^[13]

Between the time of the first instance decision and the appeal decision in Bujdoso, s3B(1)(a) was amended to clarify the position so as to confirm that the section did not apply where the liability was for negligence in failing to prevent injury being caused by an intentional act of some other person and only applied in respect of the intentional act of the person.

In Zorum Enterprises Pty Ltd v Zabow,^[14] the NSW Court of Appeal concluded that nothing in the language of s3B(1)(a) suggested that a different approach should be taken to the civil liability of an employee in the context of vicarious liability when the conduct of the employee was an intentional tort. The employer had argued that the effect of s3B(1) was to exclude the employee from the application of the Act, but did not affect the employer’s legal position. The Court concluded that as the tortious liability between employer and employee was the same, s3B(1) operated in the same way for both.

CONCLUSION

Beyond the decisions in NSW, there is little authority dealing with the legislation and its application to intentional torts. But the use of intentional torts in Australian jurisdictions is a useful mechanism to avoid the restrictions imposed by the civil liability legislation.

As Tina Cockburn and Bill Madden observe:

‘In intentional tort cases, there is little policy justification for not requiring a wrongdoer to accept responsibility for his or her actions.

Although Professor Cane has recently commented that “Mental states are often difficult to prove; and the legal advantages gained by establishing tortious intention may not be sufficient to justify the attempt”, given the recent legislative changes to the law of negligence introduced subsequent to the Ipp Report recommendations, intention is destined to become a more important ground of liability in tort law in the future. As noted by Fleming, “Morality will, of course, continue to dominate intentional injuries in tort law (whatever its prospects of survival elsewhere) [and] appears to have an assured future in this regard.” Certainly the recent decisions concerning intentional torts committed by police and security guards, and the findings in those cases in relation to vicarious liability and exemplary damages, would seem to support this proposition.’^[15]

Gerard Mullins is a barrister at Darrow Chambers in Brisbane.

Susan Griffiths is a lawyer at Maurice Blackburn Lawyers in Brisbane.

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^[1] The authors acknowledge the extensive use of Civil Liability Australia, LexisNexis, loose-leaf.

^[2] DA Ipp (Chairman), Review of the Law of Negligence (Final Report), Commonwealth of Australia, 2 October 2002.

^[3] F Trindade and P Cane, The Law of Torts in Australia, 3^rd Edition, Oxford University Press, 1999, p20, citing T Weir, A Casebook on Torts, 4^th Edition, 1979, p257; T Cockburn and B Madden, ‘Intentional Torts to the Person, Compensation for Injury and the Civil Liability Acts – Recent Cases and Contemporary Issues’ (2007) 18 Insurance Law Journal 1.

^[4] [2005] NSWSC 107.

^[5] Ibid, at paragraph [41].

^[6] State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465.

^[7] (1971) 26 ALR 584.

^[8] [2015] NSWCA 18.

^[9] Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.

^[10] [2005] NSWSC 1053.

^[11] Cooper AJ.

^[12] [2006] NSWSC 896.

^[13] (2007) NSWLR 302 at 304, 309 and 314.

^[14] [2007] NSWCA 106.

^[15] T Cockburn and B Madden, see n3 above.