Battery, intention and personal injury – Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316

On 8 September 2014, the applicant police officer Sergeant Fede, came across the respondent acting strangely.  The appellant decided to apprehend the respondent under s. 22 of the Mental Health Act 2007 (NSW), on the grounds that he appeared to be mentally ill or mentally disturbed. At hospital, the respondent refused to take medication, and while in a drug induced psychosis, tried to escape and bit the appellant’s thigh, causing a substantial injury.

 

District court proceedings

The applicant commenced proceedings in the District Court seeking damages for battery. The trial judge (Judge Sorby ADCJ) dismissed the claim on the basis that at the time of the injury, the respondent was in a delusional and paranoid state. It was held that the respondent “was not acting either intentionally or negligently”, because he was suffering from mental illness at the relevant time.

The appellant sought leave to appeal to the court of appeal.  The issues for the court to decide were

  1. Whether the respondent’s mental condition was such that he could not be held liable for battery;
  2. Whether the effect of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) was to exclude the proceedings from the operation of the CLA; and
  3. Whether exemplary damages should have been awarded.
On 14 December 2018 the Court of Appeal delivered judgment. There were two judgments. Basten JA wrote the primary judgment, Meagher JA agreeing.  McColl JA wrote a separate judgment dissenting except for on the question of exemplary damages.

Basten JA and Meagher JA (majority judgment)

Basten JA commenced by noting that although battery is described as an “intentional tort”, this description can be misleading as fault can lie if the contact is either intended or merely negligent (Croucher v Cachia).

Basten JA reviewed the authorities with respect to the element of intent in relation to the tort of battery. He concluded that:

“Although the issue has been considered in only a handful of cases, and not always coherently reasoned, authority supports the view that the common law does not award damages by reference to moral culpability, but on the basis of causation of harm.”

He based that conclusion on the following authorities:
  1. In a very old authority, Weaver v Ward (1616) Hobart 134, a soldier in a training exercise accidentally discharged his firearm injuring the plaintiff.  The court held: “if a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass … except it may be judged utterly without his fault.”
  2. In Carrier v Bonham [2001] QCA 234, the Queensland Court of Appeal confirmed that the defendant, a schizophrenic who stepped in front of a bus, was liable for the tort of intentional infliction of psychiatric harm to the bus driver.
  3. In McHale v Watson (1966) CLR 199, the High Court held that the duty of care owed by a child is to be assessed not with reference to any characteristic of the individual child, but with reference to the capacity and foresight of a normal child of that age.
  4. In Carter v Walker [2012] VSCA 340, the Victorian Court of Appeal held that battery involves a voluntary act, voluntary in the sense of “meant to do it”, or “directed by the defendant’s conscious mind”.  It followed that a person did not commit battery if physical contact was made while sleepwalking or in the course of an epileptic fit.
Because the respondent’s conduct was intentional in the sense that it was voluntary, a product of his conscious mind and that he “meant to do it”, even if mentally ill at the time, he was liable in damages for battery.

In relation to s. 3B(1)(a) of the CLA, Basten JA found that although the respondent’s conduct was intentional in the sense that he “meant to do it”, there was no evidence that he intended to cause injury the applicant. There was evidence from the psychiatrist that he did not have the capacity to form that intention. The respondent intended to bite, but did not have the capacity to intend any injurious consequence. It followed that damages should be assessed under the CLA. Because the appellant’s injury was less than 15% of a most extreme case, there was no basis for an award of damages for non-economic loss.

The appellant was awarded $5,000 in respect of out of pocket expenses only.

McColl JA

McColl JA wrote a separate judgment in which she agreed with Basten JA that the respondent was liable for damages in battery because his conduct was intentional. She held that, despite his psychotic symptoms, he was capable of “goal directed intentional behaviour”.

McColl JA dissented from the majority on the question of whether s. 3B(1)(a) applied to the assessment of damages. She held that: “there could be no question, in my view, that in opening his mouth and clearly closing it over a substantial portion of her thigh, he intended to injure her.” She would have assessed damages at common law, and not pursuant to the CLA.

McColl held that no exemplary damages should be awarded, on the basis that the respondent was not acting in contumelious disregard of the appellant’s rights. He was in a drug induced psychosis. Further, he may be dealt with by way of a criminal law for his actions that night. Basten JA and Meagher agreed with MCColl’s judgment in this regard.

In a passing comment of note, McColl JA notes that the authorities do not indicate who bears the onus of establishing whether the defendant did, or did not, intend to cause injury. She proceeded on the basis that the applicant / plaintiff bore the onus.

Implications

The appellant’s award of damages totalling $5,000 must be a hollow victory. It is yet another example of the court awarding limited damages, resulting in both the costs and the emotional toll of litigation being disproportionate to the damages award.

Contributors

Patrick Thompson Senior Associate