State of New South Wales v Ouhammi

[2019] NSWCA 225

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Ouhammi [2019] NSWCA 225
Hearing dates:	13 February 2019
Decision date:	11 September 2019
Before:	Basten JA at [1]; Brereton JA at [47]; Simpson AJA at [137]
Decision:	(1)   Leave granted to appeal. (2)   The applicant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days. (3)   Appeal allowed. (4)   Set aside the orders made by the District Court on 6 June 2018 and in their place: (i)   order that the amended statement of claim be dismissed; and (ii)   order the defendant to pay the plaintiff’s costs. (5)   The applicant pay the respondent’s costs in this Court.
Catchwords:	TORTS – negligence – negligent battery – plaintiff’s thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be reduced due to plaintiff’s intoxication – quantum of damages
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3A, 3B, 5, 5A, 5B, 5D, 5E, 11, 11A, 16, 50, 52, 54, Pts 1A, 2, 6 District Court Act 1973 (NSW), s 127 Interpretation Act 1987 (NSW), s 35 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B Road Transport Act 2013 (NSW), s 108 Supreme Court Act 1970 (NSW), s 75A   Explanatory Note, Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW)
Cases Cited:	Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Amanda’s On the Edge Pty Ltd v Dries [2011] NSWCA 358 Ball v Axten (1866) 4 F & F 1019; 176 ER 890 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Blacker v Waters (1928) 28 SR (NSW) 406 Brighten v Traino [2019] NSWCA 168 Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791 Bunyan v Jordan (1937) 57 CLR 1; [1937] HCA 5 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Carter v Walker (2010) 32 VR 1; [2010] VSCA 340 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431 Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111 Dickenson v Watson (1681) T Jo 205, 84 ER 1218 Eisener v Maxwell [1951] 3 DLR 345 Fede v Gray [2018] NSWCA 316 Fletcher v Rylands (1866) LR 1 Exch 265 Fowler v Lanning [1959] 1 QB 426 Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84 Hall v Fearnley (1842) 3 QB 919; 114 ER 761 Holmes v Mather (1875) LR 10 Exch 261 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 Jackson v Lithgow City Council [2008] NSWCA 312 James v Campbell (1832) 5 Car & P 372; 172 ER 1015 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Kruber v Grzesiak [1963] VR 621 Lambert & Olliot v Bessey (1680) T Raym 421; 83 ER 220 Leame v Bray (1803) 3 East 593; 102 ER 724 Leishman v Thomas (1957) 75 WN (NSW) 173 Letang v Cooper [1965] 1 QB 232 McHale v Watson (1964) 111 CLR 384; [1964] HCA 64 McHale v Watson (1966) 115 CLR 199; [1966] HCA 13 National Coal Board v Evans & Co (Cardiff) Ltd [1951] 2 KB 861 Nickells v City of Melbourne (1938) 59 CLR 219; [1938] HCA 14 Platt v Nutt (1989) 12 NSWLR 231 Rylands v Fletcher (1868) LR 3 HL 330 Stanley v Powell [1891] 1 QB 86 Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 The Albano [1892] P 419 Timmins v Oliver (NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported) Venning v Chin (1974) 10 SASR 299 Weaver v Ward (1616) Hob 134; 80 ER 284 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83
Texts Cited:	C H S Fifoot, History and Sources of the Common Law: Tort and Contract (1949, Steven & Sons Ltd) C Sappideen and P Vines (eds) Fleming’s the Law of Torts (10th ed, 2011, Law Book Co) D Ipp et al, Review of the Law of Negligence: Final Report (2002, Commonwealth) J Fleming, The Law of Torts (9th ed, 1988, Law Book Co) R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts (21st ed, 1996, Sweet & Maxwell) W Holdsworth, A History of English Law (2nd ed, 1937, Meuthen & Co Ltd, Sweet & Maxwell)
Category:	Principal judgment
Parties:	State of New South Wales (Applicant) Mohammed Ouhammi (Respondent)
Representation:	Counsel: L Gyles SC/M Gollan (Applicant) R de Meyrick (Respondent)   Solicitors: Makinson & d’Apice (Applicant) Carroll & O’Dea (Respondent)
File Number(s):	2018/193392
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 6 June 2018 Before: Maiden DCJ File Number(s): 2015/318937

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 December 2011 the respondent, Mr Ouhammi, was arrested by police while urinating in a public place in Bondi Junction. He was heavily intoxicated, unsteady and unable to identify himself. He was taken to Waverley Police Station and placed in a holding cell. The door of the cell was made of heavy perspex which opened outwards and was secured by a sliding bolt. There was a small bench attached to the opposite wall which was about one step away from the door.

The respondent lay down on the bench, facing away from the door. A senior constable opened the door slightly and called to the respondent. Within two to three seconds, the respondent rolled over and took a step towards the door. The senior constable quickly closed the door. The respondent’s thumb was caught in the door and was partially severed, resulting in a partial amputation. The incident was captured on CCTV footage.

The respondent brought proceedings claiming damages for personal injury, alleging assault, battery and negligence. The primary judge found in favour of the respondent on the basis of battery by negligence and awarded damages of $82,000. The State sought leave to appeal, raising the following issues:

(1)   whether the primary judge erred in failing to apply the Civil Liability Act 2002 (NSW);

(2)   which party carries the burden of proof where the tort of battery is alleged;

(3)   whether the senior constable’s conduct in closing the door was negligent in the circumstances;

(4)   if liability was found:

(a)   the degree (if any) of contributory negligence;

(b)    the appropriate quantum of damages.

The Court (Basten JA and Simpson AJA, Brereton JA dissenting) granting leave to appeal and allowing the appeal:

In relation to issue 1:

per Basten JA, Brereton JA and Simpson AJA:

(i) Section 3B of the Civil Liability Act only excludes the operation of the Act where the conduct that is the subject of proceedings was intentional, and done with intent to cause injury; the Act is not excluded merely because the proceedings relate to an intentional tort: [8], [51], [169].

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111; Fede v Gray [2018] NSWCA 316; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18, applied.

(ii)    As he accepted that the senior constable did not intend to cause injury to the respondent, the primary judge erred in failing to apply the Civil Liability Act to the proceedings: [9], [51], [170].

In relation to issue 2:

per Brereton JA and Simpson AJA:

(iii) Section 5B of the Civil Liability Act does not alter the longstanding approach to the tort of battery, which places the onus of negativing fault on the defendant: [105]-[109], [189].

Ball v Axten (1866) 4 F & F 1019; 176 ER 890; Bunyan v Jordan (1937) 57 CLR 1; [1937] HCA 5; Carter v Walker (2010) 32 VR 1; [2010] VSCA 340; Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Kruber v Grzesiak [1963] VR 621; Leame v Bray (1803) 3 East 593; 102 ER 724; Letang v Cooper [1965] 1 QB 232; McHale v Watson (1964) 111 CLR 384; [1964] HCA 64; Nickells v City of Melbourne (1938) 59 CLR 219; [1938] HCA 14; Stanley v Powell [1891] 1 QB 86; Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; Timmins v Oliver (NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported); Venning v Chin (1974) 10 SASR 299; Weaver v Ward (1616) Hob 134; 80 ER 284; Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83, considered.

per Basten JA:

(iv) The wording of s 5B of the Civil Liability Act, requirements of other provisions and principles applicable to Pt 1A indicate that the plaintiff has the onus of establishing the defendant’s failure to exercise reasonable care and skill: [25]-[28].

McHale v Watson (1964) 111 CLR 384; [1964] HCA 64; Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; Weaver v Ward (1616) Hob 134; 80 ER 284; Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83, considered.

In relation to issue 3:

per Basten JA and Simpson AJA:

(v) As the senior constable had minimal time to react to the situation, and there was no evidence that he knew the respondent’s hand was in the door, a reasonable person in his position would not have taken the precaution of giving a warning or direction: [36], [195].

Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791; Leishman v Thomas (1957) 75 WN (NSW) 173, considered.

(vi) Accordingly, negligence on the part of the appellant is not proven and the appeal should be allowed: [37], [202].

per Brereton JA:

(vii) The conduct of the senior constable in suddenly and forcefully closing the door was not utterly without fault, as the exercise of ordinary care and skill could have prevented the physical contact. Liability was therefore established: [112]-[113].

Ball v Axten (1866) 4 F & F 1019; 176 ER 890; Weaver v Ward (1616) Hob 134; 80 ER 284, considered.

In relation to issue 4(a):

per Basten JA:

(ix) On the assumption that the finding of no liability was in error, s 50 of the Civil Liability Act called for consideration. The respondent was significantly intoxicated at the time of the incident and it was not probable that the injury would have been likely to have occurred in any event. Accordingly, s 50(2) is engaged to preclude an award of damages. Alternatively, by ss 50(3) and (4), any award of damages would be reduced by at least 25% for contributory negligence: [40]-[41].

per Brereton JA:

(x) Section 50 of the Civil Liability Act is not engaged as it was not demonstrated that the respondent’s intoxication impaired his capacity to exercise reasonable care and skill in the circumstances. If it did apply, the award would be reduced by 25%: [119], [129].

In relation to issue 4(b):

per Basten JA and Brereton JA:

(xi) On the assumption that the defendant was liable, on the scale of the assessment of non-economic loss the injury was likely around 23% of the most extreme case and would result in an award of damages of $30,500: [44], [131].

per Basten JA:

(xii) As damages should be reduced by 25% due to the respondent’s intoxication, the appropriate award would be $23,000: [44].

Judgment

1. BASTEN JA: On 12 December 2011 Mohammed Ouhammi was apprehended by police officers whilst heavily intoxicated and urinating in a public place. He was taken to Waverley Police Station and placed in a holding cell. The cell had a transparent perspex door, set in a metal frame. The door had a bolt and lock on the outside. Mr Ouhammi lay on the bench in the cell and apparently went to sleep. At least, he did not respond to a police officer, Senior Constable Johnson, who was calling out to him in an attempt to ascertain his identity. The officer then approached the cell and pulled back the bolt on the door which opened outwards. As the officer pulled the door open, Mr Ouhammi partly rolled with his feet off the bench onto the floor and lurched towards the door. Within seconds, SC Johnson pushed the door shut. With his right hand, Mr Ouhammi grabbed the doorframe as it was closing. His thumb was caught in the doorframe, causing a serious injury to it, resulting in the later amputation at the distal joint.

2. On 30 October 2015 Mr Ouhammi filed a statement of claim in the District Court claiming damages for the injury to his thumb. The amended statement of claim alleged an assault and battery and negligence. The State was sued as vicariously liable for the conduct of the police officer. [1]

   1. Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B.

3. On 6 June 2018 Maiden SC DCJ (the trial judge) delivered judgment and made orders in favour of Mr Ouhammi. He awarded damages in an amount of $82,000 and (on 27 August 2018) made an order as to costs. The State of New South Wales seeks leave to appeal against the judgment and orders. It requires leave because the amount of the damages awarded was under $100,000. [2]

   2. District Court Act 1973 (NSW), s 127.

4. There is an issue of general importance raised by the case, namely whether, in the absence of proof of an intention to harm the plaintiff, proceedings can be brought for assault and battery which are not governed by the provisions of the Civil Liability Act 2002 (NSW). For the reasons set out below, the trial judge wrongly failed to apply the terms of the Civil Liability Act. In the result, he erred in placing an onus of proof on the defendant and assessed damages on an incorrect basis. He also failed to consider a number of statutory defences relied on by the defendant. In these circumstances, there should be a grant of leave to appeal. The State agreed not to seek an order disturbing the costs order made at trial, and to pay the respondent’s costs in this Court in any event.

Application of Civil Liability Act

5. It is convenient to commence by addressing the question as to the application of the Civil Liability Act as a matter of principle. The trial judge set out to deal with the matter in this way. He commenced with the proposition, said to be common ground between the parties, that “if the Court was to find conduct of an intentional tort, being battery, then the Act does not apply.” [3] Having set out the circumstances in which the injury occurred, the judge returned to that question, answering it as follows: [4]

“The first issue is whether or not there was an assault or battery in respect of the actions by Constable Johnson in closing the door of the dock on the plaintiff. I find that there was a form of trespass to the person [or] battery, and that battery was caused by the negligence of the officer in failing to give direction to the plaintiff to remove his hands or any part of his body away from the door that he was closing.

…

The question then arises of whether or not there was negligence on the part of the officer or officers, in respect of the matter. Having found that there was battery, I have come to the view that to make any finding of negligence is unnecessary.”

3.    Judgment, p 1, par 1. (The parties helpfully numbered the paragraphs in the typescript judgment.)

4.    Judgment, p 7, pars 20 and 22.

6. This finding was reiterated in the conclusion to the judgment, when considering whether exemplary or aggravated damages were warranted. The judge stated: [5]

“In respect of that matter, this was a matter where an officer did not deliberately, as I have found, seek to cause injury to the plaintiff. It was a matter where he simply failed to consider the position of the plaintiff, his condition being affected by alcohol and possibly mental illness at that time, and failed to issue a demand to him. And for that reason I do not think that this is a case that calls for either of those two heads of damage.”

5.    Judgment, p 11, par 34.

7. Unfortunately, the formulation of the issue and, consequently, the answer given failed to reflect the language of the Civil Liability Act. (As no question of costs arises, it is not necessary to identify where responsibility for the error lay.) The operation of the Civil Liability Act turns, relevantly for present purposes, on the language of s 3B(1)(a). That provision reads:

3B   Civil liability excluded from Act

(1)   The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a)   civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except:

(i)   section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)), and

(ii)   Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

(iii) Part 2A (Special provisions for offenders in custody) …

8. As this Court has noted on a number of occasions, [6] s 3B(1)(a) does not refer to an intentional tort, nor indeed to any specific cause of action. Rather it refers to “an intentional act”, which act is done “with intent to cause injury or death”. Thus, both the formulation of the question and the terms in which it was answered wrongly focused on the causes of action, being battery and negligence.

   6. Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111 at [10]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [131], [132] (Leeming JA); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [33] (Leeming JA); Fede v Gray [2018] NSWCA 316 at [191].

9. Had attention been focused on the language of s 3B(1)(a) it would have been apparent that the finding of negligent battery on the part of the officer, being a finding that he did not deliberately seek to cause injury to the plaintiff, meant that the specific intent to cause injury (the second limb of par (a)), was negated; it followed that the exclusion from the operation of the Civil Liability Act contained in s 3B(1)(a) was not engaged. However, it is still necessary to consider whether the relevant parts of the Civil Liability Act applied to the respondent’s claims.

10. The Civil Liability Act contains specific application provisions at the beginning of each Part. Questions of liability are dealt with in Pt 1A and questions of damages in Pt 2. The formulation is not identical in each provision, but, with respect to these Parts, is to the same effect. Thus, s 5A (in Pt 1A) reads as follows:

5A   Application of Part

(1)   This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

Section 11A (in Pt 2) reads as follows:

11A   Application of Part

(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

(2)   This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3)   A court cannot award damages, or interest on damages, contrary to this Part.

(4) In the case of an award of damages to which Part 2A (Special provisions for offenders in custody) applies, this Part applies subject to Part 2A.

11. There are also definitional provisions in each Part. Relevantly for present purposes, Pt 1A commences with the following definitions:

5   Definitions

In this Part:

harm means harm of any kind, including the following:

(a)   personal injury or death,

(b)   damage to property,

(c)   economic loss.

negligence means failure to exercise reasonable care and skill.

12. It therefore follows that Pt 1A applies to any claim for damages for harm resulting from failure to exercise reasonable care and skill, regardless of the cause of action. The conclusion from this language, which will be explained further below by reference to some historical context, is that the Civil Liability Act, Pt 1A, will apply with respect to any cause of action involving negligence, including what may be characterised as negligent trespass to the person.

12. Part 2 applies to an award of “personal injury damages”, a phrase which means damages that “relate to the death of or injury to a person”: s 11. Both Pts 1A and 2 contain exclusions by reference to s 3B, but as that does not apply in the present case, both Pts 1A and 2 governed the determination of the respondent’s claim.

13. These conclusions should be understood in their historical context. As explained by JG Fleming, trespass emerged in the 13th century as a remedy for forcible wrongs where the infliction of harm was direct and immediate. [7] Actions on the case (now referred to as negligence) developed by way of an exception to the requirement for a specific writ which permitted a claim (relevantly in trespass) where the injury was suffered as a result of the defendant’s act, but not directly and immediately. Fleming described this as “a primitive distinction based on the nature of the causal sequence connecting the defendant’s conduct with the plaintiff’s harm.” The distinguishing features of the two causes of action were that trespass did not require proof of loss (negligence did) and, the plaintiff having established the direct and immediate application of force, it was a matter for the defendant to demonstrate justification or excuse sufficient to negate liability.

    7.    C Sappideen and P Vines (eds) Fleming’s the Law of Torts (10th ed, 2011, Law Book Co) at [2.10]; see also J G Fleming, The Law of Torts (9th ed, 1988, Law Book Co) at pp 15-16.

14. A cause of action in trespass to the person (the relevant form being battery) could be established where the act of the defendant was not proved to have been either intentional (including reckless) or negligent. As Fleming explained: [8]

“For injuries to the person or property which were the immediate and direct result of the defendant’s force and for which an action of trespass would lie, the early common law imposed a rather strict responsibility. Though perhaps never absolute, because a few defences like unavoidable necessity and self-defence gained very early recognition, liability was not apparently contingent on wrongful intent or negligence. Even a faultless trespassery contact was actionable unless the defendant could show that the accident was inevitable – ‘judged utterly without his fault; as if a man by force take my hand and strike you’. [9] ”

8.    10th ed at [2.20]; 9th ed at p 24.

9. See Weaver v Ward (1616) Hob 134; 80 ER 284.

16. The distinction between the two causes of action was considered by the High Court in 1957 in the South Australian case, Williams v Milotin. [10] The plaintiff claimed for personal injuries sustained when struck by a truck whilst riding his bicycle. It was alleged that the defendant drove the truck in a negligent manner. [11] At that time, the Limitation of Actions Act 1936 (SA) contained a three year limitation period with respect to trespass, but a six year limitation period with respect to negligence. Although the matter was pleaded in negligence, the defendant alleged that, because it could have been pleaded as a trespass to the person, as a matter of construction of the statute, the shorter period should apply. The proceedings had been commenced within six years, but not three years.

    10. (1957) 97 CLR 465; [1957] HCA 83.

    11.    Williams at 469.

17. The High Court rejected the defendant’s argument, and in doing so referred to the historical development of the separate causes of action. Referring to a time prior to the passing of the Supreme Court Act 1878 (SA), the High Court stated: [12]

“At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff … intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise. But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant’s negligence. Had the damage been caused indirectly or mediately by the defendant or by his servant (a state of things to be distinguished from violence immediately caused by the defendant’s own act) the action must have been brought as an action on the case and not otherwise.”

12.    Williams at 470.

18. After noting the differences between trespass and negligence, the Court proceeded: [13]

“It is true that in the absence of intention some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as a trespass. It is unnecessary to inquire how that comes about. It is perhaps a modification of the general law of trespass to the person. But it does not mean that trespass is the same as actionable negligence occasioning injury. It happens in this case that the actual facts will or may fulfil the requirements of each cause of action.”

13.    Williams at 474.

19. It has not been suggested since Williams v Milotin that trespass to the person can be made good with no element of fault, either by way of intention or want of due care, on the part of the defendant. Rather, the distinction between the two causes of action lies in the party upon whom the onus of proof lies; in negligence the onus of proving want of due care lies on the plaintiff, but in trespass it is the defendant who must establish absence of both intent and want of due care.

20. The decision of McHale v Watson, [14] decided at trial by Windeyer J in the High Court (the case being brought in the diversity jurisdiction because the parties lived in different States) had nothing to do with a motor vehicle accident. Rather, a boy threw a piece of sharpened metal, described as a dart, striking the plaintiff in the right eye and causing serious injury. In dealing with the legal principles, Windeyer J stated: [15]

“Negligence would of course be the essence of the action in case. And as I understood the argument it was conceded, and rightly I think, that the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part. … But the question remains, Is it for the plaintiff to establish that the missile with which she was hit was thrown with intent to hit her or so negligently that it did so – or is it for the defendant who threw it to prove an absence of intent and negligence on his part? I think the latter view is correct.”

14. (1964) 111 CLR 384; [1964] HCA 64.

15.    McHale at 387-388.

21. After referring to the language of Weaver v Ward, “utterly without his fault”, Windeyer J stated that the words mean “as the context and later decisions make clear, not an absence of all ground for blame and censure of any kind but an absence of such negligence …”. The principle stated by Windeyer J in McHale relating to the onus of proof with respect to “the absence of intent and negligence on the defendant’s part” was approved by Gummow J in Stingel v Clark. [16]

    16. (2006) 226 CLR 442; [2006] HCA 37 at [47]; see Croucher v Cachia at [25].

22. The forms of action, which had a stultifying effect on the development of the common law of tort, created carefully defined causes of action, albeit with a tendency to overlap in particular circumstances. The forms of action have long passed, but specific causes of action remain. In this particular area, the important reforms introduced by the Civil Liability Act have removed the constraints imposed by the formulation of separate causes of action.

23. This conclusion is apparent from the language of both s 3B(1)(a) and the definition of “negligence” discussed above. While it is true that s 3B(1)(a) commences with an assumption of “civil liability”, not defined by reference to a particular cause of action, but clearly including trespass to the person, the exclusion is framed not by reference to the elements of a cause of action, but by reference to an intentional act done with intent to cause injury. Similarly, the definition of negligence in s 5 is neutral as to the cause of action, so long as an element of the cause of action is a failure to exercise reasonable care and skill. The intention to impose statutory conditions, not constrained by the basis upon which the claim is brought, is expressly identified in s 5A(1).

24. The next question is whether, where the cause of action is for negligent trespass, the effect of Pt 1A of the Civil Liability Act is to vary the burden of proof of want of due care by placing it on the plaintiff. Some provisions in the Civil Liability Act expressly identify where the burden of proof lies, including by reference to presumptions. On one view, s 5B dealing with the elements of negligence says nothing as to the burden of proving the elements. That section could operate consistently with the burden in a case of negligent trespass falling on the defendant to prove there was no failure to exercise reasonable care and skill.

25. There are, however, three reasons for rejecting that conclusion. The first is that s 5B(1) is expressed in the negative, namely the defendant is “not negligent in failing to take precautions … unless”. Similarly, s 5B(2) reflects the assumption in subs (1) that the court must be affirmatively satisfied of the factors going to establish negligence.

26. Secondly, there is an express requirement that “[i]n determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”: s 5E. That encompasses findings as to each element of liability and the link between those elements and the harm suffered, by reference to the matters identified in s 5D.

27. Thirdly, by adopting in Pt 1A principles applicable to any claim based on a failure to exercise reasonable care and skill, regardless of the cause of action, s 5A leaves no room for the disparate operation of the burden of proving such a failure, depending on the cause of action. [17] While s 3A states that “[a] provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law”, that does not preserve the operation of a rule that imposes a burden, rather than conferring a protection, on a defendant.

    17.    D Ipp et al, Review of the Law of Negligence: Final Report (2002, Commonwealth), par 1.28; recommendation 2.

28. It follows that, by abandoning principles specific to particular causes of action, the Civil Liability Act, Pt 1A, has prescribed the approach required with respect to findings of negligence, whatever the cause of action in which the element of negligence arises. The result is to reverse the apparently anomalous position which arose where a cause of action could be formulated as negligent trespass or in negligence.

Existing authority

29. The State submitted that the onus of proving negligence for the purposes of establishing a cause of action in trespass to the person lay on the plaintiff. To that end, it sought to depart from the recent findings of this Court in Croucher v Cachia. However, the reasoning in Croucher, partly repeated above, as to the relevant general law principles was correct and in accordance with authority in the High Court. If the case turned upon the general law, it would be necessary to reject that aspect of the State’s appeal.

30. However, the case does not turn on the general law, but on the application of the Civil Liability Act which, for reasons set out above, has changed this aspect of the law of torts. There is no authority which considers, let alone contradicts this conclusion; it is therefore unnecessary to have further regard to any case law.

Application of principles

31. There was no challenge to the finding of the trial judge that the officer did not intend to injure the respondent. The sole question was whether the respondent, as the plaintiff at trial, established negligence on the part of the officer. The CCTV footage of the incident showed the officer seeking to push the door shut immediately the respondent rose from the bench and lurched towards the door. The respondent’s left hand was in the air as the door was being shut and appears to have been within the visual range of the officer. It is far from clear that the respondent’s right hand, which must have made contact with the door jamb only a second before the door closed, was either visible to the officer or was likely to land on the door jamb, rather than on the perspex of the door or the wall beside the door.

32. It is apparent that the officer’s move to close the door, to stop the respondent holding the door open or even accidentally falling against the door so that it opened further, was instantaneous. The officer gave evidence as to his motive in seeking to close the door, namely that he closed the door “[t]o stop him from escaping the dock, and, secondly, to prevent him from assaulting myself or anybody else in the charge room around me”. [18] The judge described SC Johnson’s evidence as “selective”, but said that it was consistent with what was seen on the CCTV footage which the officer agreed he had viewed. The judge may have intended to find that the officer’s explanation of his motives was a reconstruction based on reviewing the CCTV footage.

    18.    Tcpt, 15/03/17, p 71(25).

33. The judge also stated that, “the footage did not contain any audio sound and thus his evidence regarding what was said or heard is entirely dependent on his memory.” [19] That was a curious finding in that, in the previous paragraph, the judge had noted that the officer “could not remember whether he said anything at all because of the shortness of time”. [20]

    19.    Judgment, p 5, par 16.

    20.    Judgment, par 15.

34. No doubt it was true, as the judge found, that the officer did not advert to the risk of injury to the respondent. However, unless he ought, in the circumstances, to have adverted to such a possibility, there was no failure to exercise reasonable care and skill in the action of pushing the door shut.

35. The trial judge concluded that he should have given the respondent a warning before shutting the door. However, a warning would clearly have been ineffective, given that the respondent appeared to be off balance and lurching towards the door as it was being shut. The only course of action which could have prevented the injury which in fact occurred would have been to stop the motion of shutting the door. Indeed, the particulars of negligence adopted that view. No particular suggested that a warning should have been given.

36. No doubt it was true that there was a foreseeable risk that the respondent’s right hand might be on the door jamb as the door shut, which, although not a substantial risk, could not be dismissed as insignificant. It may also be accepted that if the risk eventuated it might result in serious harm. Nevertheless, in circumstances where the officer could not have known that the respondent’s right hand was on the door jamb as it shut, the precaution of not shutting the door was not a step a reasonable person in the position of the officer would have taken, within the terms of s 5B(1)(c).

37. It was not in doubt that the respondent was heavily inebriated. That was known to the officer, having apprehended him urinating in public, and being unsteady on his feet. He was apprehended at approximately 1.20pm and was in the holding cell at approximately 2pm. At 4pm his blood alcohol concentration was .2257g/100mll, being in the high range of prescribed concentration of alcohol under s 108 of the Road Transport Act 2013 (NSW). It would have been an instinctive reaction of a person in the position of SC Johnson to shut the door when he realised that the heavily inebriated respondent had lurched towards it. There was no time to take precautions against possible injury to the respondent arising from his own conduct. The respondent, who had no memory of the incident, did not establish that the officer failed to take precautions against the risk of the harm suffered. Negligence was not proven.

Contributory negligence

38. On the assumption that the finding of no liability is in error, it is appropriate to deal briefly with contributory negligence. There was no finding of contributory negligence on the part of the respondent. Although relied on by the applicant, the trial judge did not address the issue. The issue properly arose under both the general law and the Civil Liability Act. It is sufficient to deal with the matter under the Civil Liability Act, Pt 6, “Intoxication”. There is no doubt that the respondent was heavily intoxicated at the time the injury occurred. It was necessary therefore to have regard to s 50 of the Civil Liability Act which provides:

50   No recovery where person intoxicated

(1)   This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2)   A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3)   If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4)   When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5)   This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

39. First, given the blood alcohol reading, the Court should be satisfied that the respondent’s capacity to exercise reasonable care for himself was significantly impaired. There was evidence that he was unsteady on his feet when being taken to the police vehicle; further, his lurching towards to the door of the holding cell was consistent with an impaired capacity to exercise reasonable care for himself. The requirement of s 50(1) was satisfied.

40. For the purpose of applying s 50(2), the respondent’s counsel accepted that the test of likelihood invoked the balance of probabilities standard. It is therefore not sufficient for the Court to be satisfied that the injury might have occurred in any event; rather, an award of damages will only be permitted where it is probable that the injury would have occurred in any event. I would not be satisfied that the injury was likely to have occurred if the respondent had not been intoxicated. It was not the act of a person exercising control and care for himself to place his hand on the metal jamb of the door at a time when it was being closed. That is not to imply that he did so deliberately, but rather that his lack of physical control resulted in him placing his hand in a dangerous position. In my view no award of damages could be made in these circumstances.

41. In case the respondent was wrong as to the meaning of “likely” and a lower standard should be applied, permitting a greater level of speculation, it is possible that s 50(2) was not engaged. However, it would not be open on the limited evidence to be affirmatively satisfied that intoxication “did not contribute in any way” to the cause of the injury, so as to dislodge the presumption contained in subs (3). That being so, at best for the respondent, any damages would need to be reduced by 25%.

Quantum of damages

42. Again on the assumption that the finding with respect to liability is erroneous, it is desirable to deal with the question of damages.

43. Although the judge did not purport to assess damages according to s 16 of the Civil Liability Act, he was addressed as to the appropriate range as a proportion of a most extreme case, for the purposes of that provision. The State submitted that the appropriate range was between 15% and 20%. [21] Counsel for the respondent suggested that an appropriate percentage would be in the “high 20s”. [22]

    21.    CA Tcpt, p 44(42).

    22.    Tcpt, p 204(48); CA Tcpt, p 67(43).

44. On 6 June 2018 (the date of judgment) the maximum amount for non-economic loss in a most extreme case was $612,500. Accordingly, the amount awarded by the trial judge, if assessed according to that scale, would equate to a level of severity of 28% of a most extreme case. Whilst it is true that the injury must have been excruciatingly painful at the time and that there is a long-term disfigurement and disability resulting from the loss of the distal joint of his thumb, such an assessment would appear to be manifestly disproportionate to the seriousness of the injury. At the lower end of a reasonable assessment, the injury might not have reached the threshold of 15%; it would not exceed 23%. Accepting 23% as the appropriate figure for this hypothetical exercise, the resultant award would be 5% of the maximum permissible amount, or $30,625. If it were not appropriate to refuse an award on account of his state of inebriation, pursuant to s 50(2) of the Civil Liability Act, it is inevitable that the amount be reduced by 25%, pursuant to the presumption in s 50(3). That would have allowed a payment which might be in round figures $23,000.

Conclusion

45. In accordance with the condition on the grant of leave, the State should pay the reasonable costs of the respondent in this Court.

46. I agree with the orders proposed by Simpson AJA.

47. BRERETON JA: On the afternoon of 12 December 2011, the respondent Mr Ouhammi, who had been observed to be urinating in a public place, was arrested by New South Wales Police and conveyed to Waverley police station, where he was placed in a dock by about 14:00. The dock in which he was placed had a bench seat – not sufficiently long for him to lie on it fully outstretched – and a transparent perspex door in a metal frame, with an external bolt and lock. He was inebriated, to the point that two hours later, at 16:00, he had a blood alcohol concentration of .2257. Mr Ouhammi lay on the bench, on his left side, facing the rear wall of the dock, with his back towards the door, and fell asleep. Senior Constable Johnson, who was seeking to ascertain his identity, called out to him, but he did not respond.

48. What then ensued was captured on CCTV. At 14:11:46, SC Johnson knocked on the door of the dock with his right hand. After about three seconds, at 14:11:49, SC Johnson commenced to open the door with his right hand; within a further second, at 14:11:50, he had opened the door about 30 centimetres, and Mr Ouhammi was beginning to roll and rise from his position lying on the bench, with his left hand outstretched upwards. By 14:11:51 he was seated, on the edge of the bench, leaning forward, with his left hand touching the inside of the door. At 14:11:52 he was standing, though not yet fully erect, with his left hand still against the door and his right hand in the vicinity of the door jamb, when SC Johnson straightened and extended his right arm, closing the door and placing his right foot against it to hold it closed; Mr Ouhammi withdrew his right hand, while his left hand remained against the door. By 14:11:53, Mr Ouhammi was again seated on the bench, apparently inspecting his right hand, the thumb of which had been caught in the door as it was closed and seriously injured, leading to a later amputation at the distal joint.

49. The trial judge was not persuaded that in rising and approaching the door of the dock Mr Ouhammi intended to offer violence to any person, nor that he was attempting to escape; [23] and while it is fair to say that Mr Ouhammi’s movement following the knock on the door was sudden, in the context of someone aroused from sleep by a knock and faced with an opening door, I too would not conclude from his actions, as they appear on the CCTV footage, that he had any such intention.

    23. Judgment at [18].

50. In the District Court, the trial judge held the applicant State of New South Wales vicariously liable on the basis that the closing of the door on Mr Ouhammi’s thumb was a battery, and (implicitly though not expressly) that the defendant had failed to negative fault, [24] and awarded damages, assessed at common law, in the amount of $82,000. The applicant seeks leave to appeal to this Court.

    24. Judgment at [17]–[20].

51. I have had the benefit of reading in draft the judgments to be delivered by Basten JA and Simpson AJA. I agree with their Honours that the trial judge, having explicitly found that the defendant did not intend to cause injury to the plaintiff, erred in failing to consider the defences under Civil Liability Act2002 (NSW) (“CLA”) that were pleaded (relevantly, and in particular, contributory negligence by intoxication), and in assessing damages at common law, rather than under the CLA. CLA s 3B(1)(a) relevantly excludes the applicability of “the whole Act” in respect of the civil liability of a person (and awards of damages) for an intentional act that is done by the person with intent to cause injury or death. The distinction drawn by s 3B(1) is not between liability for the so-called intentional torts and liability for negligence, but between intentional acts done with intent to injure on the one hand, and unintentional acts and intentional acts not intended to injure on the other. It is concerned not with the way in which the relevant cause of action is framed, but with the intent that accompanies the relevant act. [25] The inevitable consequence of the trial judge’s finding that the defendant did not intend to cause injury to the plaintiff is that s 3B(1)(a) was not engaged, and the Act applies.

    25. White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132] (Leeming JA); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [33] (Leeming JA); Dean v Phung [2012] NSWCA 223 at [10] (Basten JA).

52. I also agree, with Basten JA, that if liability be established, the plaintiff’s injuries would not exceed 23% of a most extreme case, so that (before any deduction for contributory negligence) the resultant award would be 5% of the maximum permissible amount, [26] which is to say $30,625, rounded to $30,500. [27]

    26. See CLA s 16(3).

    27. CLA s 16(4).

53. The issues which I have found more troubling are:

1. whether, in the context of non-intentional battery, the plaintiff bears the onus of proving, or the defendant of negativing, fault – on which question the other members of the bench differ – and what amounts to fault for that purpose;

2. whether that onus has been discharged; and

3. whether, and if so to what extent, the defence of contributory negligence by intoxication is engaged. [28]

   28. Other pleaded defences, under CLA s 52 (self-defence) and s 54 (illegality), and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) ss 230 and 231 (lawful justification), were not developed before this Court. It suffices to observe that CLA s 52 was not engaged because the relevant conduct of the respondent was not unlawful; s 54 was not engaged because no criminal conduct of the respondent materially contributed to his injury; and LEPRA ss 230 and 231 were not engaged, because objectively judged, the force used by SC Johnson was not reasonably necessary.

The fault element in non-intentional battery

54. Given that their Honours differ, though not as to the ultimate outcome, in respect of whether the plaintiff bore the onus of proving negligence, or whether the defendant bore the onus of negativing fault, it is desirable that I explain why I agree with Simpson AJA that the onus is borne by the defendant.

The position at common law

55. A battery is constituted by the direct application of force to the person of another, without lawful justification or excuse. [29] Like other forms of trespass to the person, a battery may be justified (for example, on grounds of self‑defence, exclusion or ejectment of a trespasser, acting in support of the criminal law to secure the peace, statutory authority, and – at least in some circumstances – consent); [30] and it may be excused in the case of inevitable accident. [31]

    29. That definition is based on R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts, 21st ed (“Salmond”), p 120; see also Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21] (Leeming JA, with whom Beazley P and Ward JA agreed), and Eisener v Maxwell [1951] 1 DLR 816 at 823 (which was reversed [Eisener v Maxwell [1951] 3 DLR 345], but without affecting the definition of “battery”). Other definitions, which include in the definition fault elements of intention or negligence, fail to reflect the position that, as explained below, neither is an element of a plaintiff’s cause of action. For reasons which will appear, it is helpful to recognise that the defences may be subdivided into those of “justification” and that of “excuse”.

    30. See Salmond, p 127; Salmond also includes reasonable chastisement pursuant to parental or other authority, which would no longer be applicable due to statutory measures.

    31. See Salmond, pp 127, 135–7.

56. In the passage which has been cited by Basten JA, [32] Fleming explained that historically, neither intention nor negligence was required to found liability for battery, and that even a faultless battery was actionable unless the defendant could establish that it was an inevitable accident (footnotes omitted): [33]

For injuries to the person or property which were the immediate and direct result of the defendant’s force and for which an action of trespass would lie, the early common law imposed a rather strict responsibility. Though perhaps never absolute because a few defences like unavoidable necessity and self-defence gained very early recognition, liability was not apparently contingent on wrongful intent or negligence. Even a faultless trespassery contact was actionable unless the defendant could show that the accident was inevitable – ‘judged utterly without his fault; as if a man by force take my hand and strike you’.

32. See [15] above.

33. J Fleming, The Law of Torts, 10th ed at [2.20]; 9th ed at p 24.

57. The quote at the end of that passage is from Weaver v Ward,[34] which has been consistently referred to ever since, and remains authoritative. [35] It establishes the dual propositions (1) that it is for the defendant to negative fault, and (2) that (apart from lawful justification) the defendant could do so only by showing that the act was involuntary or that the ensuing physical contact was the result of an inevitable accident: [36]

Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded, that he was amongst others by the commandment of the Lords of the Council a trained soldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they were skirmishing with their musquets charged with powder for their exercise in re militari, against another captain and his band; and as they were so skirmishing, the defendant casualiter et per infortunium et contra voluntatem suam, in discharging of his piece did hurt and wound the plaintiff, which is the same, etc absque hoc, that he was guilty aliter sive alio modo. And upon demurrer by the plaintiff, judgment was given for him; for though it were agreed, that if men tilt or turney in the presence of the King, or if two masters of defence playing their prizes kill one another, that this shall be no felony; or if a lunatick kill a man, or the like, because felony must be done animo felonico: yet in trespass, which tends only to give damages according to hurt or loss, it is not so; and therefore if a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass (for this is the nature of an excuse, and not of a justification, prout ei bene licuit) except it may be judged utterly without his fault.

As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt.

34. (1616) Hob 134; 80 ER 284.

35. See Blacker v Waters (1928) 28 SR (NSW) 406 at 410 (Street CJ, with whom Ferguson and James JJ agreed); McHale v Watson (1964) 111 CLR 384 at 388; [1964] HCA 64 (Windeyer J); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [24]–[25] (Leeming JA); Brighten v Traino [2019] NSWCA 168 at [143].

36. (1616) Hob 134; 80 ER 284.

58. It is noteworthy that it was thus held that a pleading that the defendant’s act was done casualiter and per infortunium and contra voluntatem suam (which is to say accidentally, by misadventure and involuntarily) was insufficient to raise a defence, in the absence of pleaded facts to show that it was inevitable and that the defendant had committed no negligence. The concluding paragraph of the report illustrates that the content of the excuse “utterly without fault” involves either involuntariness (“as if a man by force take my hand and strike you”), or circumstances so beyond the defendant’s control that it could be said that the defendant’s act was not the cause of the ensuing physical contact (“or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging”).

59. In Lambert & Olliot v Bessey, [37] it was said that “in all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering”; and that “if a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies by that person, and yet I did a lawful thing”.

    37. (1680) T Raym 421; 83 ER 220.

60. In Dickenson v Watson, [38] the plaintiff sued the defendant for wounding him with his pistol; the defendant’s plea that he discharged his pistol in a vacant place, and that the plaintiff had crossed the line of fire unknown to him, was held bad on the basis that in trespass the defendant shall not be excused except in a case of unavoidable necessity, which was not established.

    38. (1681) T Jo 205, 84 ER 1218.

61. In Leame v Bray, [39] the defendant drove his carriage against the plaintiff’s chaise, causing the plaintiff’s horses to bolt; the plaintiff’s servant was ejected and the plaintiff, to save his life, jumped out and fractured his collarbone. The defendant was not “otherwise blameable than driving on the wrong side of the road in a dark night”. It was held that the remedy was trespass, not case, the injury being immediate from the act done. In observations which suggest that it is direct application of force which constitutes the tort regardless of the defendant’s state of mind or any question of fault, Lord Ellenborough CJ said: [40]

If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern. It is immaterial whether the injury be wilful or not.

39. (1803) 3 East 593; 102 ER 724.

40. (1803) 3 East 593 at 599; 102 ER 724.

62. To like effect, Grose J said: [41]

Looking into all the cases from the Year Book in the 21 H. 7, down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass.

41. (1803) 3 East 593 at 599; 102 ER 724.

63. Those cases, and some others, were considered by Sir William Holdsworth to illustrate a rule that a direct act of violence to another rendered the actor liable for trespass, even though the act itself not be unlawful and the impact purely accidental, except in cases of unavoidable necessity or inevitable accident. [42]

    42. W Holdsworth, A History of English Law, vol 8, pp 453–456. The text continues to explain that this position was modified by Holmes v Mather (1875) LR 10 Exch 261 and then Stanley v Powell [1891] 1 QB 86, which are discussed below.

64. In James v Campbell, [43] where the defendant, who was brawling with another man, unintentionally and accidentally struck the plaintiff, Bosanquet J directed the jury that the defendant’s intention was irrelevant:

If you think, as I apprehend there can be no doubt, that the defendant struck the plaintiff, the plaintiff is entitled to your verdict, whether it was done intentionally or not. But the intention is material in considering the amount of the damages.

43. (1832) 5 Car & P 372; 172 ER 1015.

65. In Hall v Fearnley, [44] it was held that it was not open to a defendant on a mere plea of “not guilty” to show that there was no negligence on his part and that the plaintiff had accidentally slipped from the pavement and the defendant unintentionally drove over him – so that that a blow, even if accidental, unless entirely involuntary, could be justified or excused only on a specially pleaded defence, on which the defendant bore the onus. [45] A distinction was recognised between a contention that the act was involuntary, resulting from some superior agency, that might be raised under the general issue; but if it were admitted that it were the act of the defendant, then it had to be justified or excused under a special plea. Lord Denman CJ observed, arguendo:

If the plaintiff has suffered damage by a trespass not justified, the defendant should pay the whole amount without inquiry into the question of animus. The case would be different, if the defendant was not a voluntary agent. So it may be different where an action on the case for negligence is brought, and the negligence is denied; there negligence is the fact in issue.

44. (1842) 3 QB 919; 114 ER 761.

45. See also note (a) to Ball v Axten (1866) 4 F & F 1019; 176 ER 890 at 891.

66. In Ball v Axten, [46] the defendant struck with the handle of his riding whip at a dog which was barking at him, and accidentally hit the plaintiff, who had approached to shield her dog. Cockburn CJ directed the jury that “even though the defendant had not aimed the blow at the woman, there was no doubt an assault”; further, there being no evidence in support of a justification, no defence was set up, and all the jury had to do was to assess damages.

    46. (1866) 4 F & F 1019; 176 ER 890.

67. Confusion came with the march of the tort of negligence, and the advent of the motor vehicle, as courts endeavoured to avoid imposing strict liability for accidents on the highway, and limitation statues often provided different periods for bringing actions in trespass and actions in negligence. It was in this context that the unfortunate and in my view inapt notion of “battery by negligence” emerged – inapt because it suggests that negligence is part of the cause of action.

68. By 1875, it had become established that on public thoroughfares, such physical interaction as reasonable care could not avoid was no longer actionable. In Holmes v Mather,[47] the defendant's horses ran away on the highway and injured the plaintiff. Bramwell B said: [48]

For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid. I think the present action not to be maintainable.

…

As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful.

47. (1875) LR 10 Exch 261.

48. (1875) LR 10 Exch 261 at 267–269.

69. However, Cleasby B added an observation to the effect that a basis for exculpating the defendant was that his act was involuntary: [49]

This is not a case where … a man does a particular thing to avoid something else, but it is a case where it must be shewn that it was the act of the defendant himself. I sum up all in these words: in my opinion, the horses were not driven there by the defendant’s servant, but they went there in spite of him, so far as he directed them at all.

49. (1875) LR 10 Exch 261 at 269.

70. The “public thoroughfare” cases came to be rationalised on the basis that a person who entered on a public thoroughfare voluntarily assumed the risk of non-negligent physical contact by others, as Diplock J observed in Fowler v Lanning. [50]

    50. [1959] 1 QB 426 at 436, 439. This analysis had its origin in observations of Blackburn CJ in Fletcher v Rylands (1866) LR 1 Exch 265 at 286–287 (affirmed by the House of Lords in Rylands v Fletcher (1868) LR 3 HL 330). See also Venning v Chin (1974) 10 SASR 299 at 312–315.

71. However, in Stanley v Powell, [51] Denman J held that trespass to the person was not an absolute wrong (in the sense that a defendant was liable for a direct unjustified voluntary act of force against the plaintiff's person, regardless of whether the act was intentional, negligent or neither), and that without intention or negligence the defendant was not liable. [52] The defendant, who was a member of a shooting party, shot at a pheasant, and a pellet from his gun glanced off the bough of a tree and accidentally wounded the plaintiff, who was engaged as a carrier of game for the party. The jury found that the defendant was not guilty of any negligence, and Denman J held that in those circumstances he was not liable, on the ground that a trespass to the person was not actionable if neither intentional nor negligent. Proceeding on the basis that the defendant had (as required by Weaver v Ward) affirmatively denied evidence and pleaded facts negativing negligence, that amounted to an excuse in law. [53] His Lordship said that Leame v Bray did not show that in the absence of any negligence the defendant would have been liable, as some negligence was established. [54] His Lordship said that there was a distinction between an inevitable act (which afforded a defence under the general issue), and an excusable act, which had to be pleaded, and of which no-one might be excused except it be judged utterly without fault: [55]

On referring back to Weaver v Ward, I can find nothing in the report to shew that the Court held, that in order to constitute a defence in the case of a trespass it is necessary to shew that the act was inevitable. If inevitable, it would seem that there was a defence under the general issue; but a distinction is drawn between an act which is inevitable and an act which is excusable, and what Weaver v Ward really lays down is that “no man shall be excused of a trespass except it may be judged utterly without his fault”.

51. [1891] 1 QB 86.

52. Cited as authority for this proposition by Bray CJ in Venning v Chin (1974) 10 SASR 299 at 310.

53. [1891] 1 QB 86 at 89.

54. [1891] 1 QB 86 at 92.

55. [1891] 1 QB 86 at 91.

72. However, the last sentence in the report of Weaver v Ward, set out above, does appear to require that the defence plead facts showing that the accident was inevitable. His Lordship also referred to Bacon’s Abridgment: [56]

In Bacon the word “inevitable” does not find a place. “If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful” (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury, as for instance, in a case of self-defence) “and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to shew not only that the act complained of was accidental” (by which I understand, ‘that the injury was unintentional,’) “but likewise that it was not owing to neglect or want of due caution”.

56. [1891] 1 QB 86 at 93.

73. It is not without significance that the passage cited from Bacon – which recurs in later Australian cases, mentioned below – refers not merely to “neglect” but also to “want of due caution”; it is not equivalent to a breach of a duty of care. In any event, it is clear that Denman J considered that in such a case, the defendant bore the onus of pleading excuse and negativing any fault.

74. The defence of “inevitable accident” was discussed in The Albano, [57] in which Lord Esher MR said:

Now, these words were deliberately used with reference to what is taken to be a well-known phrase, “inevitable accident”, and which is a head of law well known, and distinguished from the case of mere negligence. The ship in motion is not allowed in such a case to say merely, “I was not guilty of an ordinary want of care and skill”. It must be shewn that it was an inevitable accident.

There is the law laid down by the Court, and that only leaves open this – What is the proper definition of inevitable accident? To my mind these cases shew clearly what is the proper definition of inevitable accident as distinguished from mere negligence – that is a mere want of reasonable care and skill. In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill”.

57. [1892] P 419 at 428–429.

75. Fry and Lopes LJJ took a less strict view, but nonetheless were of the view that inevitable accident is one which the party charged with the damage “could not possibly prevent by the exercise of ordinary care, caution and maritime skill”. [58] Lopes LJ said that in this respect there was no distinction as regards inevitable accidents between cases which occur on land and those which occur at sea. [59] Thus there is a class of conduct which, without crossing the threshold of a failure to exercise reasonable care and skill, is nonetheless not “utterly without fault” – because (to adapt the words of Lord Esher MR) it does not appear that something happened over which the defendant had no control, the effect of which could not have been avoided by the greatest care and skill; or (using the language of Fry and Lopes LJJ), it does not appear that the exercise of ordinary care and skill could possibly have prevented the event.

    58. [1892] P 419 at 432 (Fry LJ), 434 (Lopes LJ).

    59. [1892] P 419 at 434.

76. In England, Stanley v Powell was approved by the Court of Appeal in National Coal Board v Evans & Co (Cardiff) Ltd [60] – a case of trespass to property – in which it was doubted, though not finally determined, that the dicta of Bramwell B in Holmes v Mather were confined to an accident on the highway, as it could hardly be said that the arguments based on the convenience of mankind, which Bramwell B put in the forefront of his judgment, were relevant in the case of an accident on private property. The case was decided on the basis that the defendant was “utterly without fault”.

    60. [1951] 2 KB 861.

77. Then, in Fowler v Lanning, [61] Diplock J held that:

    61. [1959] 1 QB 426 at 439.

1. trespass to the person did not lie if the injury, though the direct consequence of the defendant’s act, was caused unintentionally and without negligence;

2. in this respect, trespass on the highway did not differ from trespass elsewhere;

3. plaintiffs must now be taken to have voluntary assumed the risk of inevitable injury by any lawful non-negligent act; and

4. the onus of proving negligence, in the case of a non-intentional trespass, fell upon the plaintiff, and this was not confined to highway cases.

78. Subsequently, in Letang v Cooper, [62] the Court of Appeal (Lord Denning MR, Danckwerts and Diplock LJJ), endorsing Fowler v Lanning and Kruber v Grzesiak [63] (discussed below), held that trespass was not available for an unintentional act, the only available cause of action being in negligence.

    62. [1965] 1 QB 232.

    63. [1963] VR 621.

79. However, the status of Stanley v Powell, Fowler v Lanning and Letang v Cooper in this State is dubious. In Blacker v Waters, [64] the plaintiff had been struck in the eye by the fragment of a bullet fired by the defendant at a shooting gallery. The defendant pleaded that the damage done was not caused intentionally, and could not have been avoided by reasonable care on his part, and that therefore the case was one of an inevitable accident. Street CJ (with whom Ferguson and James JJ agreed) said (emphasis added):

In my opinion the appeal fails. No contention was raised that the principles enunciated by Blackburn, J, in delivering the judgment of the Court of Exchequer Chamber in Fletcher v Rylands (LR 1 Ex 265) applied. If they did, the defence of inevitable accident would not have been open to the defendant. I say nothing about that, however, as the case was conducted on the assumption that in the absence of negligence the defendant was not liable. The trespass to the plaintiff's person was complete, on proof that the lead which entered his eye came from the bullet fired by the defendant at the target, and the defence was that it was not actionable as it was neither intentional nor the result of negligence. See Stanley v Powell ([1891] 1 QB 86.) The burden of establishing that it was neither intentional nor the result of negligence lay, in my opinion, upon the defendant. From my reading of the reasons given by Denman, J, in his judgment in Stanley v Powell I gather that that was his view, and it is supported by some of the authorities which he discussed and considered. In Weaver v Ward (Hob 134) the plaintiff and the defendant were engaged in skirmishing exercises as train band soldiers, and the defendant hurt the plaintiff by mischance. In an action of trespass he pleaded that what he did he did casualiter et per infortunium et contra voluntatem suam, but it was held that no man should be excused of a trespass except it might be judged utterly without his fault; and the plea was held bad, because it did not set out the circumstances so that it might appear whether the defendant had been negligent or not. That case is referred to in Bacon's Abridgement, in dealing with the pleadings in an action of trespass, as an authority for the following proposition (7th Ed. Vol. 7, p. 707): –

"If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful, and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental, but likewise that it was not owing to neglect, or want of due caution."

64. (1928) 28 SR (NSW) 406 at 409–410.

80. It will be observed that the court put to one side – and did not decide – the question of strict liability, “as the case was conducted on the assumption that in the absence of negligence the defendant was not liable”. While Stanley v Powell was referred to, it was at least chiefly on the question of onus. Nonetheless, the passage cited recognised that the defence in question was one of inevitable accident, and confirmed that the onus of making it good fell upon the defendant. The continued authority of Weaver v Ward was endorsed.

81. In Bunyan v Jordan,[65] Latham CJ observed that “[i]f A, intending to hit B unlawfully, in fact hits C, there is no doubt as to A’s liability to C”. That observation is redolent of the decisions in James v Campbell and Ball v Axten, and does not suggest that any fault element is required vis-à-vis the actual victim.

    65. (1937) 57 CLR 1 at 12; [1937] HCA 5.

82. In Nickells v City of Melbourne,[66] Dixon J (as he then was) observed that in a highway case, an unintentional trespass was not actionable in the absence of negligence – the implication being that in other cases, it was actionable without negligence (emphasis added):

But involuntary trespass to land is not always an actionable wrong. Just as in trespass to the person and in trespass to goods it has come to be the law that an unintentional injury to or interference with another’s person or property on the part of the user of a highway is not actionable in the absence of negligence, so if, in the course of any reasonable use of a public way, a man unintentionally damages neighbouring premises, the law does not hold him liable as a trespasser unless he has been guilty of negligence.

66. (1938) 59 CLR 219 at 225; [1938] HCA 14.

83. These observations of Sir Owen presaged the judgment of the High Court, presided over by him as Dixon CJ, in Williams v Milotin,[67] in which the issue was whether an action for damages for personal injuries occasioned by negligent driving of a motor vehicle could have been brought in negligence (for which the limitation period was six years) or in trespass (for which the three-year limitation period had expired). In a joint judgment, Dixon CJ, McTiernan, Williams, Webb and Kitto JJ held that it could have been brought in either, and said: [68]

At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff, by his next friend, intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise. But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence. Had the damage been caused indirectly or mediately by the defendant or by his servant (a state of things to be distinguished from violence immediately caused by the defendant's own act) the action must have been brought as an action on the case and not otherwise. See Leame v Bray (1803) 3 East 593 (102 ER 724); Williams v Holland (1833) 10 Bing 112 (131 ER 848); Sharrod v London and NW Railway Co (1849) 4 Ex 580 (154 ER 1345); and Holmes v Mather (1875) LR 10 Ex 261; cf Stanley v Powell [1891] 1 QB 86 and the comment thereon in Fifoot: History and Sources of the Common Law (Tort and Contract) (1949), pp 188, 189. See too the note in Smith's Leading Cases in the sixth (1867) and previous editions under Scott v Shepherd.

67. (1957) 97 CLR 465; [1957] HCA 83.

68. (1957) 97 CLR 465 at 470.

84. That passage appears to treat Leame v Bray as still authoritative, while being decidedly more ambivalent in respect of Stanley v Powell; the comment in Fifoot to which it refers is as follows:

The conclusion here reached [in Stanley v Powell], that a defendant was liable neither in Trespass nor in Case unless he had been in some degree at fault, has been variously received. Sir William Holdsworth and Professor Winfield agree that the evidence is to be sought rather in dicta than in decisions and that it is negative rather than positive; but while the former detected, the latter denies, a mediaeval tendency to strict liability. Dr Stallybrass accepted Stanley v Powell as good modern authority, but thought it represented ‘a departure from the earlier precedents’. Pollock, in the eleventh edition of his Law of Torts, opposed a number of conflicting dicta, but, after inclining against the view of strict liability, declared that ‘the decisive change of opinion took place within our own time’. Mr Landon, in the fourteenth edition, denounces both Holmes v Mather and Stanley v Powell as wrong in law, in morals and in history.

85. Subsequently, of the causes of action in trespass and negligence, their Honours said (emphasis added): [69]

The two causes of action are not the same now and they never were. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage – it is the gist of the action – and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person. It is true that in the absence of intention of some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as a trespass. It is unnecessary to inquire how that comes about. It is perhaps a modification of the general law of trespass to the person. But it does not mean that trespass is the same as actionable negligence occasioning injury. It happens in this case that the actual facts will or may fulfil the requirements of each cause of action.

69. (1957) 97 CLR 465 at 474.

86. That passage is to the effect that intention or negligence is not a requisite element of a cause of action in trespass, except in respect of “a violation occurring in the course of traffic in a thoroughfare”, and that that exception was an apparently anomalous modification of the general law of trespass to the person, in the special context of traffic in a thoroughfare. While the High Court considered it unnecessary to inquire as to how that modification came about, it is reflective of Bramwell B’s observation that for the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid, and is explicable on the basis, referred to above, of the presumed voluntary assumption of the risk of non-negligent physical contact upon a public thoroughfare. Accordingly, Williams v Milotin provides no support for the view that intention or negligence is a necessary element of battery, other than on a thoroughfare; to the contrary, it treats the thoroughfare cases as an anomalous exception. While it may be that in McHale v Watson [70] (discussed below) Windeyer J later took a different approach, those remarks of a full High Court have, so far as I can ascertain, never been overruled.

    70. (1964) 111 CLR 384; [1964] HCA 64.

87. In Kruber v Grzesiak [71] (to which reference was made in Letang v Cooper), Adam J said:

The real contest before me was whether the action, if framed as one of trespass to the person, would be an action for damages for negligence, nuisance or breach of duty within the meaning of any of those expressions in subs(6). I agree with the submission of Mr. Merralls, who appeared for the second-named defendant and supported the proposed amendment, made in the course of his interesting and careful argument, that despite changes introduced by the Judicature Act, the cause of action for trespass to the person – though founded on negligence and not on intentional infliction of injury – remains distinct from an action on the case founded on the same negligence, in the one case the tort is actionable without proof of damage; in the other, proof of damage is the gist of the action. In the one case the injury to the person of the plaintiff must be the direct and immediate result of the defendant's conduct; in the other it may be consequential only: see Williams v Milotin (1957) 97 CLR 465; [1957] ALR 1145; 49 Law Quarterly Review 359. But despite these differences, the two causes for action possess this feature in common where the act causing the injury is unintentional, that in each case it is essential that the injuries complained of should have been caused by the negligent conduct of the defendant. I refer to Nickells v Corporation of Melbourne (1938) 59 CLR 219; [1938] ALR 154; also see Williams v Milotin, supra, and Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290. The question which arises is whether, for the purposes of s 5(6), an action for damages for trespass to the person in which proof of negligence is an essential ingredient is an action for damages for negligence and if not, whether it is an action for breach of duty. The conclusion I have reached is that s 5(6) should be given a liberal rather than a narrow or technical construction and that the expression "actions for damages for negligence" –should be construed to include not only actions on the case for negligence, but also actions of trespass to the person in which, because the trespass is not intentional, proof of negligence is an essential ingredient.

Consideration

A preliminary matter

168. It appears that the primary judge took the view that, because he found that there had been “a form of trespass to the person of battery”, there had been an “intentional tort”, and, therefore, the CLA did not apply. It may be assumed that that view derives from s 3B of the CLA, set out above.

169. This was an incorrect approach. The question for determination with respect to s 3B is not whether there is an “intentional tort”; it is a two limbed question, focused, first, on whether the act or conduct the subject of the proceedings (as distinct from any tort said to be constituted by the act or conduct) was intentional, and, second (and importantly) was done with intent to cause injury or death: see White v Johntson (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132].

170. In the light of the primary judge’s explicit finding, in the context of rejecting the respondent’s claim for exemplary or aggravated damages, that Senior Constable Johnson did not “deliberately … seek to cause injury to the [respondent]”, s 3B could not and did not operate to exclude the CLA. That means that the respondent’s claim (and the statutory defences pleaded by the applicant) were governed by the provisions of the CLA, and ought to have been determined accordingly.

171. Curiously enough, no ground of appeal asserts error in this respect. Nor is s 3B mentioned in the written submissions of the applicant. Yet the issue was raised and discussed at trial. It was also the subject of debate in the hearing before this Court. The inevitable result of the finding that Senior Constable Johnson did not intend to cause injury to the respondent is that it was an error for the primary judge to conclude (as he apparently did) that, once he had found the tort of battery, s 3B(1)(a) of the CLA operated to exclude the application of its other provisions (or some of them). He therefore failed to consider no fewer than four of the statutory defences pleaded by the applicant (that is the defences provided for by ss 50, 52, 53 and 54). Further, even if s 3B(1)(a) had, as he appears to have thought, the effect of excluding the application of some of the CLA provisions, that exclusion did not extend to the defences raised under Pt 7 – that is, ss 52, 53 and 54 defences. He also failed to consider the partial defence of contributory negligence, and the issues that arise under ss 230 and 231 of the LEPRA. Perhaps the most fundamental error was the failure to consider the question of negligence in accordance with s 5B of the CLA. Given that the primary judge found that the battery was “caused by negligence”, the question of negligence under the CLA could not be avoided. Section 5A of the CLA provides:

“5A Application of Part

(1)   This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

“Negligence” is defined in s 5 as “failure to exercise reasonable care and skill”.

172. Section 5B provides as follows:

“5B General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.”

173. Error in the primary judgment is thus established. Because of the amount in issue, it remains necessary that the applicant establish a basis on which it ought to be granted leave to appeal. The applicant contended that a “fundamental injustice” had occurred, that a critical matter in issue (the reasonableness of Senior Constable Johnson’s conduct in closing the cell door) had been dealt with in “an unsatisfactory and impractical way” and in “a manner not properly open”, and that an issue of principle (concerning the onus of proof in a claim for the tort of battery) in respect of which conflicting views had been expressed by a former President of this Court and a former Chief Justice of the High Court, and that there is a public interest in claims involving NSW Police Force officers.

174. The respondent opposed the grant of leave, relying on well-known and frequently stated principles to the effect that, before leave will be granted, an applicant must demonstrate more than merely arguable error, and show that some issue of principle is involved: see, for example, Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.

175. This is a case in which, in my opinion, leave to appeal ought to be granted. The erroneous approach taken by the primary judge infected the procedure from beginning to end. The applicant was deprived of a trial according to law of the issues identified in the pleadings.

176. It is also apparent that the primary judge did not appreciate the issue concerning the onus of proof, although, as that was an error that favoured the applicant it is not one that calls for further consideration in these reasons. The onus of proof is discussed below. Nor did the primary judge address the defences under ss 230 and 231 of the LEPRA.

177. For the same reasons, the judgment, having resulted from an erroneous approach to the application of the CLA, cannot stand.

178. Section 75A of the Supreme Court Act provides that, where the decision under appeal has been given after a hearing, the appeal is by way of re-hearing. This Court is given the powers and duties of (in this case) the District Court, including, relevantly, the power of drawing inferences and making findings of fact and the assessment of damages. By sub-s (10) this Court has the power to make any finding or assessment, to give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.

179. Given that there is little dispute concerning the basic facts, it is appropriate that this Court proceed to determine the issues that ought to have been determined at first instance. In undertaking that task, it is appropriate to maintain, so far as possible, the assessments made by the primary judge, bearing in mind “the subtle influence of demeanour” and the advantage enjoyed by the primary judge in seeing and hearing the witnesses as they gave their evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47. It is also appropriate to bear in mind any challenges to those assessments made by the applicant.

Battery

180. Because the argument touched on the legal principles relevant to the tort of battery, it is necessary to say something about those principles, although this can be done briefly. The physical element of the tort is constituted by direct physical contact with the plaintiff by the defendant. The contact may be effected by the body of the defendant or an instrument or object: Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431 at [71]. The act is tortious if the defendant fails to prove that he or she was “utterly without fault”. These concepts derive from Weaver v Ward (1616) Hob 134; 80 ER 284; Blacker v Waters (1928) 28 SR (NSW) 406 at 410. They have been repeatedly adopted: McHale v Watson (1964) 111 CLR 384 at 388; [1964] HCA 64 (affirmed on appeal at McHale v Watson (1966) 115 CLR 199; [1966] HCA 13); Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 at [47] and, perhaps most recently, Croucher; see also the judgment of Brereton JA in Brighten v Traino [2019] NSWCA 168 at [143].

181. Accordingly, once it was established, as it indisputably was, that Senior Constable Johnson had caused the cell door to come into contact with the respondent’s hand or thumb, the onus lay on the applicant to establish that it was caused “utterly without fault” on the part of Senior Constable Johnson.

182. In Croucher, Leeming JA (with whom Beazley P and Ward JA agreed) reviewed the principles relevant to the tort of battery. He said:

“22   Although battery is an intentional tort, a battery may occur when the defendant is merely negligent.”

He cited Williams v Milotin (1957) 97 CLR 465 at 474; [1957] HCA 83, where it was held that the facts of the case were capable of fulfilling the requirements of a cause of action in either battery or negligence.

183. There was no ground of appeal that directly challenged the proposition that, where direct physical contact is proved, the onus lies on the defendant to establish that it was committed without fault. It appears that the applicant’s legal representatives had communicated with the Registrar of this Court, advising “that there may be a challenge” to the decisions in Blacker and Croucher, presumably with the intention of suggesting that an enlarged Bench be constituted to reconsider that question. There being no ground of appeal that made such a challenge, the Court declined to order an enlarged Bench.

184. There were, however, hints (without any clear contention) in the applicant’s written submissions to the effect that Blacker and Croucher ought not to be followed. After referring to Croucher, the submissions described the proposition for which Blacker and Croucher stand as “a matter of debate”. The submissions then referred to Fowler v Lenning [1959] 1 QB 426 (in which Diplock J discussed at length a number of issues, including onus of proof); to the judgment of Gibbs CJ in Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84, expressing a preference for the approach taken in Fowler ; and to a judgment of Kirby P in Platt v Nutt (1989) 12 NSWLR 231. It may be noted that no other Justice in Hackshaw adopted the tentative views expressed by Gibbs CJ, and the judgment of Kirby P in Platt was a dissenting one. The position in NSW is, therefore, that the test stated in Blacker and subsequently affirmed (inter alia, in Croucher) remains operative. Once it was established that Senior Constable Johnson had caused the cell door to close on the respondent’s thumb, the onus shifted to the applicant to disprove fault.

185. The applicant’s submissions then moved to the finding of “battery by negligence”; it will be remembered that the primary judge had found that the negligence consisted in Senior Constable Johnson’s failure to warn the respondent or to direct him to remove his hand from the vicinity of the door. The first attack may be disposed of quickly. It was that “failure to warn could only be relevant to a claim made in negligence”. That may be correct, but, as was held in Croucher, battery may be committed negligently, and that was what the primary judge found. Failure to warn, if established, was a relevant consideration.

186. The second attack was that, although the Amended Statement of Claim pleaded both battery and negligence (in the alternative), the particulars upon which the respondent relied did not include a failure to warn. In my opinion, the particular numbered [12]:

“… without having any proper regard for the safety of the Plaintiff”

is sufficient to encompass failure to warn the plaintiff to get out of the way of the closing door.

187. I would therefore reject these somewhat technical arguments. What is necessary to consider is whether the primary judge was in error in finding that Senior Constable Johnson acted negligently; more accurately, whether, applying the provisions of the CLA, the injury to the respondent was shown by the applicant to have been caused “utterly without fault” on the part of Senior Constable Johnson.

Negligence

188. As set out above, it was (and in this Court, in the exercise of the powers conferred by s 75A, is), for the applicant to prove that Senior Constable Johnson was not negligent, that is, that he did not fail to exercise reasonable care and skill. The respondent’s case was that the applicant failed to discharge that onus. On the findings of the primary judge (which the respondent sought to support), the negligence of Senior Constable Johnson arose out of his failure to take reasonable precautions against a risk of harm that was both foreseeable and not insignificant. Negligence in that sense is to be determined by reference to s 5B of the CLA. Section 5B does not create rights or impose liabilities; it does no more than cast light on one particular means by which negligence is commonly sought to be established.

189. The difficulty with the application of s 5B in this case is that its structure (framed as it is in the negative) reflects the most common position that the onus of proving negligence lies on the plaintiff. Applying its provisions where the onus lies on the defendant to prove the absence of negligence requires some linguistic gymnastics. But there is nothing in the language of the section that suggests that it was intended to change the longstanding approach to the tort of battery, including where the onus of negativing fault lies, nor that such a change was in any way contemplated.

190. The risk of harm, in this case, was the risk that the respondent might suffer personal injury by Senior Constable Johnson closing the cell door. The applicant could have proved the absence of negligence on the part of Senior Constable Johnson by proving that the risk was not foreseeable, or (ignoring the double negatives) that any risk that existed was not significant; or that, in the circumstances (and having regard to the further elucidation in sub-s (2) of s 5B) a reasonable person in the position of Senior Constable Johnson would not have taken the precautions proposed. It could hardly be said (and was not argued) that the risk of injury to the respondent was not foreseeable; nor could it be said (and was not argued) that the risk was insignificant. The pertinent question is whether a reasonable person in Senior Constable Johnson’s position would have taken precautions against the risk.

191. The obvious starting point is to ask “what precautions”? The primary judge’s answer was – give the respondent a warning or direction to remove his hand from the vicinity of the door.

192. The argument advanced on behalf of the applicant was, essentially, that it was impractical for Senior Constable Johnson to have given any warning to the respondent in the very short time frame in which the relevant events occurred. That is most clearly illustrated by the CCTV recording of what took place, which I have watched a number of times.

193. The applicant argued:

“3.16   

…

(c)   No more than about 5 seconds passed between SC Johnson opening and closing the door … in finding that a warning should have been given, his Honour failed to have regard to the limited window of opportunity available to SC Johnson to give such a warning. His Honour also failed to have regard to SC Johnson’s evidence that at the time he closed the door, he did not have time to think about other options that may have been available …

(d)   SC Johnson had attempted to speak to the Respondent and had knocked on the cell door before opening it but the Respondent had not reacted or responded. There was no utility in giving any direction before the door was opened. If the direction was given after opening the door it would have been impossible for the door to have been closed before the Respondent had the opportunity to push it open. That is, the warning would inevitably have meant that the Respondent would have had the opportunity to escape.”

194. On behalf of the respondent it was submitted:

“There was at the very least a casual act of negligence by Officer Johnson in slamming the door upon the Respondent’s hand with such force as to effectively sever [sic] part of his thumb.

There was an obvious foreseeable risk of injury that was a matter of common human experience. Given that Officer Johnson perceived the Respondent to be commencing a movement to exit through the ajar door of the dock area, a reasonable person in his position would have apprehended the risk that some part of the Respondent’s body could have been injured in a rapid closing of that door. That risk of harm could easily have been avoided with due care. There was no imperative to force the door back upon the Respondent, and even if that proposition is in doubt there was no need to use the level of force that clearly was used.”

Just what steps could have been taken to have avoided the risk of harm was not spelled out in the submissions.

195. Not without hesitation, I have come to the view that the applicant has disproved negligence; it has proved that, in the circumstances that applied, a reasonable person in the position of Senior Constable Johnson would not have taken the only precaution it is proposed that he could and should have taken, that is, giving a warning or direction to the respondent before closing the door (which he did with some force). Senior Constable Johnson had minimal time in which to make the assessment of the risk of injury to the respondent and to consider any means of avoiding that risk eventuating. It is not clear (and there was no finding) that Senior Constable Johnson knew, when he reacted to the respondent’s sudden movement, that the respondent’s hand was in or near the door jamb. Senior Constable Johnson had no time to reflect on what he could do to prevent the apprehended exit of the respondent from the cell, other than closing the door, which he did with some force and speed. Indeed, given the speed with which events occurred, it is entirely possible that, at the moment Senior Constable Johnson began the movement of closing the door, the respondent’s hand was not in the dangerous position in which it was caught.

196. In considering this question, I have derived some guidance from the judgment of this Court in Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791. In that case, a group of (presumably young) men, of whom Mr Broughton was one, sought refuge in a fast food outlet in the city, fearing serious attack with knives by another, larger, group of men. The assistance they sought was refused by a security guard who physically ejected them from the premises. Their fears of attack were realised and Mr Broughton was injured. He sued the occupiers of the premises and the security guard, alleging negligence. The trial judge found against him on the basis that the defendants owed no duty of care to him. His finding was upheld on appeal. There are passages in the reasoning of both Brownie AJA (who delivered the principal judgment) and Hodgson JA that are here pertinent.

197. Brownie AJA said:

“29   Assuming that the respondents owed [Mr Broughton] a duty to take reasonable care for his safety, and not to eject him there and then, I do not accept that they breached that duty. The duty was to act reasonably, and a reasonable consideration of the position required the respondents to weigh up not only the duty they owed to the appellant, but also the duties that they owed to their employees working in the premises, and to the patrons who were then present, or coming into or out of the premises; and these duties might have suggested competing answers, for example if the larger group had sought to follow the smaller group inside.

30   [The security guard] acted spontaneously, in difficult circumstances. He had no opportunity to consider the position carefully, or take instructions or advice from his superior, or from the respondents, or from some lawyer, as to how these different duties might be reconciled, and, indeed, many if not most lawyers, asked to give advice on the question, would feel a need to give careful consideration to the problem. If he had considered how he should weigh up the various competing duties, a decision to give priority to the duties owed to the respondents’ employees, or their patrons, is not one that could immediately be labelled as negligent.”

198. Hodgson JA said:

“13   In my opinion, such a person [as the security guard] would have appreciated that there was a group outside with knives threatening the plaintiff and his friends, and that there was a substantial probability of severe harm to [Mr Broughton] and/or his friends if they were ejected. However, in my opinion such a person would properly have regarded his or her primary responsibility as being owed to staff and customers. In the heat of the moment, it would have been difficult for such a person to make an accurate assessment of the probability of the group outside attempting to enter the premises, of whether and/or how this could be prevented, of what might happen in that event, and of how all the opposing considerations properly balanced out. On calm reflection and with the wisdom of hindsight, I am inclined to think the right response would have been not to eject [Mr Broughton] and his friends; but I am not satisfied that the ordinary reasonable person would have appreciated this in the heat of the moment. Accordingly, subject to one further question, [Mr Broughton] has not established a breach of any duty of care by reason of his being ejected from the respondent’s premises.”

199. That reasoning is an echo of the reasoning of Street CJ in Leishman v Thomas (1957) 75 WN (NSW) 173, quoted in the applicant’s submissions in reply. His Honour said:

“It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called ‘agony of the moment’, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.” (at 175)

200. Senior Constable Johnson’s evidence, which was not expressly rejected, was to the effect that, on his perception, the respondent posed some risk either to himself or to others in the police station, as well as a risk of escape. He had minimal time in which to weigh up the severity of that risk, and the likelihood of the respondent acting in a violent or aggressive manner. In perceiving the risk, he acted virtually instinctively. I am not persuaded that a reasonable person in his position would have acted otherwise, and, specifically, I am not satisfied that such a person would have taken time to issue a caution or direction to the respondent before closing the door.

201. In coming to this view I have had regard to what can be perceived on the CCTV footage. Although I would not conclude, from that observation, that the respondent intended to attempt to escape, and certainly would not conclude that he intended any violence or assault, his movement was sudden and his intention unpredictable. In “the heat of the moment”, to adopt the words of Hodgson JA in Broughton, Senior Constable Johnson’s response was unsurprising and explicable.

202. In my opinion the applicant has discharged the onus of proving that the injury to the respondent was without negligence on the part of Senior Constable Johnson. The primary judge was, therefore, in error in finding that his act in closing the door on the respondent’s thumb was a (tortious) battery. On this basis, leave to appeal should be granted, the appeal should be allowed and the orders of the primary judge set aside. The applicant having agreed to pay the costs in any event, no question of costs arises.

203. The orders I propose are:

1. Leave granted to appeal.

2. The applicant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.

3. Appeal allowed.

4. Set aside the orders made by the District Court on 6 June 2018 and in their place:

(i)   order that the amended statement of claim be dismissed; and

(ii)   order the defendant to pay the plaintiff’s costs.

5. The applicant pay the respondent’s costs in this Court.

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Endnotes

Decision last updated: 11 September 2019