Fede v Gray by his tutor New South Wales Trustee and Guardian

In *Fede v Gray by his tutor New South Wales Trustee and Guardian*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning damages awarded to a police officer, Ms Fede, who was bitten by the defendant, Mr Gray, while he was being restrained. The primary dispute revolved around the assessment of damages, including whether the *Civil Liability Act 2002* (NSW) applied to the intentional act of biting, and whether exemplary damages were warranted.

The Court was required to determine several key legal issues. Firstly, it had to decide whether Mr Gray's act of biting Ms Fede was an "intentional act done with intent to cause injury" for the purposes of section 3B(1)(a) of the *Civil Liability Act 2002* (NSW), notwithstanding his severe drug-induced psychosis at the time. Secondly, the Court considered whether exemplary damages should have been awarded, assessing whether Mr Gray's conduct demonstrated a conscious wrongdoing in contumelious disregard of Ms Fede's rights, and the relevance of his mental state to this assessment. Finally, the Court addressed the application of the principle in *Jones v Dunkel* where the defendant did not give evidence, and the appropriateness of a buffer for future economic loss.

The Court reasoned that for an act to be considered "intentional" under section 3B(1)(a) of the *Civil Liability Act 2002* (NSW), it must be directed by the defendant's conscious mind, even if the defendant does not understand the nature or quality of their action. The Court applied the principles from *Carrier v Bonham* regarding mental illness as a defence to trespass to the person, holding that a defendant's mental state does not negate the voluntariness or intentionality of an act if it is directed by their conscious mind. Regarding exemplary damages, the Court applied the principles from *Gray v Motor Accident Commission*, finding that Mr Gray's drug use and psychosis did not preclude a finding of conscious wrongdoing, particularly as his psychosis was self-induced. The Court also considered the inference that could be drawn from Mr Gray's failure to give evidence about the incident, given his claim that his memory was obliterated by sedatives and psychosis.

The Court allowed both the appeal and the cross-appeal, setting aside the orders made in the District Court. It entered judgment for the plaintiff, Ms Fede, in the amount of $5,000 and made no order as to costs in either the District Court or the Court of Appeal.