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[2026] NSWCA 206
mixed. Appeal allowed in part. Cross-appeal dismissed on the basis of the appellant’s notice of contention. The District Court judgment of $24,000 was set aside and judgment for $27,000 entered. The...
The Court of Appeal held that the Civil Liability Act’s intentional-act exception applied because the police officer deliberately sprayed Music and intended to cause physical harm, even though the harm for which she claimed damages included an aggravation of PTSD that he had not specifically intended. It also held that the psychiatric aggravation was the natural and probable consequence of the spray in the circumstances, so the State’s causation cross-appeal failed. The statutory damages award was replaced with the higher common-law assessment, making the judgment $27,000. The majority did not award exemplary damages; Adamson JA would have done so.
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Linda Music brought a claim against the State of New South Wales after Leading Senior Constable Cashmere sprayed her twice with capsicum spray during a welfare check on 30 September 2021. The State was liable for the officer’s conduct on the basis of vicarious liability. The District Court found that the spraying was a battery and that it aggravated Music’s pre-existing post-traumatic stress disorder (PTSD). It awarded $24,000 under the Civil Liability Act 2002 (NSW), comprising $12,000 for non-economic loss, $10,000 for economic loss and $2,000 for medical expenses. The primary judge also assessed common-law general damages contingently at $15,000, which would have produced total damages of $27,000 when combined with the other heads of loss ([85], [91]-[92], [221]).
The circumstances mattered to both causation and exemplary damages. Police attended after an insurance company reported that Music had said she might kill herself. Officers had access to information about prior interactions involving mental-health concerns and suicidal statements. The police considered that she might need to be apprehended under s 22 of the Mental Health Act 2007 (NSW) and taken to a mental-health facility ([72]-[74], [142], [150], [153]-[162]).
After police entered her home, Music fled to a neighbour’s property and hid in a shed. When she emerged, she held her hands up and asked what she had done. Within about three seconds of entering the backyard, Cashmere sprayed her twice. The primary judge found that the use of force was premature and confrontational, and that the officer had not warned Music that he would use the spray ([89], [168]-[170], [205]).
On appeal, Music challenged the construction of s 3B(1)(a), aspects of the damages assessment and the refusal of exemplary damages. The State cross-appealed on causation. The Court allowed the appeal in part, dismissed the cross-appeal on the basis of Music’s notice of contention, substituted a $27,000 judgment and ordered the State to pay the costs of both proceedings ([84]).
The central statutory question was whether s 3B(1)(a) requires an intention to cause the particular injury for which damages are claimed. It provides that the Act does not apply to civil liability “in respect of an intentional act that is done by the person with intent to cause injury or death” ([4], [96]). The majority treated this as requiring two elements: an intentional act and an actual, subjective intention to cause injury. The statute does not say that the actor must intend a particular injury or the precise injury eventually claimed ([6], [8]-[13], [109]).
The distinction between an intentional act and an intention to cause injury was important. Battery may involve an intentional act without an intention to injure. As the reasons explain, the fact that conduct is an intentional tort does not by itself establish that s 3B(1)(a) applies ([8]-[10]). Here, however, it was common ground that Cashmere deliberately deployed the spray and intended to cause physical harm or pain. The question was whether that intention brought the whole claim within the exception, even though the claim included psychiatric harm that was not shown to have been specifically intended ([129]).
The majority rejected an interpretation that would split injuries caused by one intentional act into separate statutory and common-law categories. Adamson JA considered that such an approach could make damages assessment “unwieldy if not unworkable”, including where statutory thresholds might apply to only part of the injury ([130]). Mitchelmore JA likewise relied on the text’s focus on an intentional act and the damages “in those proceedings”, and concluded that the Act did not apply to the award for liability in respect of that act ([27], [50]-[52]). McHugh JA emphasised that the percentage-based statutory assessment of non-economic loss assumes an overall assessment of injury, which sits uneasily with dividing one liability into intended and unintended components ([268]).
The State’s causation cross-appeal raised a different question. In an intentional tort claim, it is not enough simply to establish factual causation. The plaintiff must also establish actual or presumed intention to cause the harm; intention is presumed if the harm is the natural and probable consequence of the tort ([55], [224]). The State argued that the primary judge had found material contribution but had not made the necessary finding about intention or natural and probable consequence ([53]-[57]).
The judges agreed that the relevant test required attention, but reasoned differently about the primary judgment. Adamson JA read the primary judge’s finding at [434], that the events were inherently the kind of thing that would cause a mentally troubled person nightmares or flashbacks, as the ultimate causation assessment and as equivalent to a finding that aggravation was the natural and probable consequence ([233]-[235]). Mitchelmore JA considered the passage at [343] in context. She concluded it was an observation made while dealing with s 3B, not a definitive causation finding, and then held on the known circumstances that the aggravation was the natural and probable consequence of deploying the spray ([61]-[75]). Both approaches led to dismissal of the cross-appeal.
The damages grounds did not alter the result. The Court declined to entertain Music’s new argument that common-law general damages and statutory non-economic loss should be assessed through a consistent “exchange rate”. That argument had not been advanced to the primary judge and was inconsistent with the figures sought at trial ([237]-[242]). The contingent common-law award was also not manifestly inadequate, given the primary judge’s opportunity to assess Music and the evidence about the extent and duration of the aggravation ([243]-[245]). The $10,000 economic-loss buffer was not shown to involve error ([261]-[263]).
The judgment addressed an issue that it described as not having been settled by the existing authorities: whether an intention to cause some injury is sufficient for s 3B(1)(a), or whether the intended injury must correspond to the injury claimed. The earlier Court of Appeal decision in State of New South Wales v Ibbett involved an intended injury in the form of apprehension of physical violence. It therefore did not answer whether a different, unintended injury from the same act also falls within the exclusion ([115]-[117]).
Dickson considered the nature of intention under s 3B(1)(a), holding that actual, subjective intention is required and that recklessness or foresight of an inevitable consequence is insufficient. But the Court in Music concluded that the precise issue now raised had not been necessary to decide in Dickson. The factual finding there was that the tackler did not intend injury, and the other members of the Court had not endorsed Basten JA’s comments as resolving the present question ([121]-[127], [131]).
Music therefore clarifies the relationship between the two requirements. The actor must intentionally do the act and must actually intend to cause injury; an intentional tort alone does not suffice. But the injury intended need not be the exact injury that ultimately grounds the damages claim. Where a single intentional act causes multiple injuries, the Court rejected separating the damages regime according to whether each injury was specifically intended ([50]-[52], [129]-[133]).
The judgment also restates a causation principle applicable to intentional torts. A plaintiff must prove that the act caused the harm and that the tortfeasor had actual or presumed intention to cause it. The natural and probable consequence test supplies the basis for presumed intention, not mere foreseeability ([55], [224]). In this case, the police’s knowledge of Music’s mental-health history and the circumstances in which the spray was used informed the conclusion on that test ([72]-[75]).
At [109], Adamson JA says s 3B(1)(a) “does not, in terms, require that the actor intend to cause a specific injury or the actual injury for which a plaintiff brings proceedings.” In plain English, the section asks whether the person deliberately acted and intended to cause injury, not whether they intended the precise medical condition or degree of harm later claimed.
At [51], Mitchelmore JA explains that when the intentional act was done with an actual subjective intent to cause injury, s 3B(1)(a) applies “in accordance with its terms”. In this case, the officer intended the spray to cause physical pain. The Act’s limitations therefore did not govern the damages award, even though the claimed psychiatric aggravation was not itself specifically intended.
At [55], the judgment states that the tortfeasor’s intention to cause harm “will be presumed if the harm is the natural and probable consequence of the tort”. In plain English, a court may infer the necessary intention from the character and circumstances of the act and its likely consequences. This is a distinct question from whether the harm was merely foreseeable.
At [74], Mitchelmore JA applies that principle to the facts, finding that given what Cashmere knew about Music, aggravation of her mental disorder was the natural and probable consequence of spraying her in the face. The focus was not on a general proposition that spray always causes psychiatric harm. It was an assessment of this person, this known history and this particular use of force.
At [83], Mitchelmore JA says that disapproval of conduct is not, by itself, enough to justify exemplary damages. The passage separates criticism of the officer’s actions from the further evaluative question whether punishment through exemplary damages was warranted.
The s 3B(1)(a) reasoning is most directly relevant where a defendant deliberately performs an act and intends to cause some injury, but the plaintiff claims damages for a different or more extensive injury caused by the same act. Music indicates that the precise injury need not have been intended. The decision does not dispense with the requirement for actual, subjective intention to cause injury; a deliberate act, negligence, recklessness or the foreseeability of harm alone does not necessarily satisfy it ([9]-[13], [109]-[113]).
The judgment is also relevant where one act produces physical and psychological consequences and the parties dispute whether those consequences should be treated separately for the damages regime. The Court rejected dividing the same act’s consequences into distinct statutory and common-law components simply because only some injuries were specifically intended ([130]-[133], [268]).
For causation, the decision is relevant where an intentional tort is alleged to have aggravated a pre-existing condition. The tort need not be the sole or principal cause, and the wrongdoer takes the injured person as found; however, the intentional-tort requirement of actual or presumed intention to cause the harm must also be addressed ([55], [59]-[60]). The particular knowledge of the defendant may be important when deciding whether the harm was a natural and probable consequence.
The exemplary-damages discussion should be read with care because the Court divided on its application. The majority dismissed the ground on the findings made below. Adamson JA would have awarded exemplary damages, relying on the officer’s conduct, the use of force without warning and the circumstances of the appellant’s vulnerability ([82], [247]-[260]). The decision therefore does not establish that every unreasonable use of police force warrants exemplary damages.
The judgment itself does not provide any post-decision treatment by later courts. Its decision date is 2 October 2026, and the supplied text contains no subsequent judgments discussing Music. It would therefore be unsupported to say how later courts have applied, followed or distinguished it.
The judgment does discuss earlier authorities and explains their relationship to the issue. It treats Ibbett as supporting a broad ordinary meaning of “injury”, but notes that Ibbett involved an injury that corresponded with the officer’s intention ([111], [115]-[117]). It treats Dickson as establishing the need for actual, subjective intention, while concluding that the precise scope question in Music remained open ([121]-[131]). It also applies Spedding’s statement of causation principles for intentional torts ([55], [224]-[235]).
For exemplary damages, the judgment considers the High Court’s reasoning in Austral and Ibbett. Mitchelmore and McHugh JJA applied those principles to uphold the primary judge’s refusal. Adamson JA read them as requiring a different evaluation of the officer’s conduct and would have allowed the ground ([76], [82], [247]-[260], [281]-[288]). The divided reasoning is important when identifying what the Court decided as opposed to what one judge would have decided.
The decision settles the specific construction question before it, but its application will still depend on proving the elements of s 3B(1)(a) in each case. Whether an act was intentional and whether the actor actually intended to cause injury remain factual questions. Music does not make every intentional tort exempt from the Act, because the further intention-to-injure requirement remains ([8]-[13], [109]-[112]).
The judgment does not provide a complete boundary for what counts as “injury” in every setting. It adopts the ordinary meaning and explains that injury is not limited to physical harm, referring to apprehension of physical violence as an example ([7], [111]). Future cases may still need to determine how that broad meaning applies to different kinds of loss and to particular statutory contexts.
Causation may also remain contested where the alleged psychiatric consequence is less clearly connected to the act or where the defendant lacked the knowledge present here. The judgment requires actual or presumed intention and applies the natural-and-probable-consequence test; it does not hold that psychiatric aggravation is a natural and probable consequence of every use of force ([55], [72]-[75]).
Finally, exemplary damages remain fact-sensitive. The majority agreed that conduct can be contumelious even without subjective advertence to wrongdoing, but concluded that the unchallenged findings did not warrant punishment in this case. Adamson JA considered the objective circumstances sufficient to justify an award. McHugh JA also explained that a claim framed to include State conduct or omissions, such as training, could raise different considerations, but that was not the claim advanced at trial ([82], [278]-[288]). The split shows that the outcome on exemplary damages should not be reduced to a single rule based only on good faith or only on objective misconduct.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Music v State of New South Wales; State of New South Wales v Music [2026] NSWCA 206
Hearing dates: 3 August 2026
Decision date: 02 October 2026
Before: Mitchelmore JA at [1]
Adamson JA at [85]
McHugh JA at [267]
Decision: (1) Allow the appeal in part.
(2) Dismiss the cross-appeal on the basis of the appellant’s notice of contention.
(3) Set aside the judgment of the District Court in the sum of $24,000 and, in lieu thereof, enter judgment in favour of the appellant in the sum of $27,000.
(4) Order the respondent/cross-appellant to pay the appellant’s costs of the appeal and cross-appeal.
Catchwords: TORT — intentional tort — battery — where respondent found vicariously liable for the battery by a police officer who sprayed the appellant with capsicum spray during a welfare check — where primary judge found battery exacerbated the appellant’s pre-existing post-traumatic stress disorder — where primary judge assessed damages on basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) did not apply — whether scope of exemption in s 3B(1)(a) extends to all injuries or is confined to the specific injury intended by the tortfeasor
TORT — assessment of damages — quantum — where primary judge assessed general damages on a contingent basis — whether primary judge failed to apply proportionality consistency in assessment — whether assessment of contingent damages manifestly inadequate
TORT — exemplary damages — whether primary judge erred in declining to award exemplary damages
TORT — causation — principles of causation — whether psychiatric harm natural and probable consequence of tortious act
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5, 5A, 5D, 5L, 11, 16, Pt 1A, Pt 2
Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW)
Civil Liability Bill 2002 (NSW)
Crimes Act 1900 (NSW), s 547B
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 9, 230
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B
Mental Health Act 2007 (NSW), ss 22, 81
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 36.16
Cases Cited: Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152
Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53
Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912
Bird v DP (2024) 283 CLR 45; [2024] HCA 41
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132
Cullen v New South Wales [2026] HCA 19; (2026) 100 ALJR 886
DC v State of New South Wales [2016] NSWCA 198
Dean v Phung [2012] NSWCA 223
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294
El Assaad v AI Haje [2024] NSWCA 306
Fuz v Carter [2006] NSWSC 771
Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311
Hannam v State of New South Wales (No 9) [2022] NSWSC 648
House v The King (1936) 55 CLR 499; [1936] HCA 40
Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107
Miller v Jennings (1954) 92 CLR 190 at 195; [1954] HCA 6
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
Owlstara v State of New South Wales [2020] NSWCA 217; (2020) 285 A Crim R 53
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362
Peeters v Canada (1993) 108 DLR (4th) 471
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62
R v Willmot [No 2] [1985] QdR 413
Ray v Southon [2022] NSWCA 267
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
State of New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40
State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223
Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160
Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12
Texts Cited: Balkin and Davis, Law of Torts (4th ed, 2009, LexisNexis Butterworths)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 May 2002
Category: Principal judgment
Parties: Linda Music (Appellant / Cross-Respondent)
State of New South Wales (Respondent / Cross-Appellant)
Representation: Counsel:
H Chiu SC / S Grey (Appellant / Cross-Respondent)
J Sexton SC / J Jaffray (Respondent / Cross- Appellant)
Solicitors:
Hugo Law Group (Appellant / Cross-Respondent)
Wotton Kearney (Respondent / Cross- Appellant)
File Number(s): 2025/500403
[This headnote is not to be read as part of the judgment]
The appellant, Linda Music, was awarded damages for her claim in the District Court against the State of New South Wales which was vicariously liable for the tort of battery committed by Leading Senior Constable (LSC) Cashmere who twice sprayed the appellant with capsicum spray during a welfare check on her. The primary judge found that the battery exacerbated the appellant’s pre-existing post-traumatic stress disorder (PTSD). His Honour assessed damages on the basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (the Act) did not apply (with the result that damages were assessed pursuant to Part 2 of the Act rather than under the common law). The primary judge awarded damages of $24,000 (comprising non-economic loss of $12,000; economic loss of $10,000; and medical expenses of $2,000). On a contingent basis, the primary judge assessed common law general damages in the sum of $15,000.
On appeal, the appellant challenged the primary judge’s finding that s 3B(1)(a) of the Act did not apply (ground 1). The appellant alleged that the primary judge erred in: his assessment of damages by failing to address the need for consistency between common law general damages and non-economic loss under the Act (ground 2); awarding general damages which were manifestly inadequate (ground 4); declining to award exemplary damages (ground 5); and awarding manifestly inadequate damages for economic loss (ground 6).
Ground 1 turns on the construction of s 3B(1)(a) of the Act. The principal question raised was whether, where a tortfeasor intends to cause an injury (in this case, pain inflicted by the use of capsicum spray) by doing an act, the exemption in s 3B(1)(a) extends to the defendant’s liability for all injuries, including those which were not specifically intended (such as aggravation of pre-existing PTSD) caused by the doing of the act. It was common ground that, subject to the cross-appeal, if ground 1 was made out the appellant’s damages ought be assessed under the common law.
The State filed a cross-appeal alleging that the primary judge erred in finding causation in circumstances where LSC Cashmere did not intend the harm to the appellant and the primary judge had not found that the harm was the natural and probable consequence of the tortious conduct. The appellant relied on a notice of contention in response to the cross-appeal.
The Court (Adamson JA, Mitchelmore and McHugh JJA) held allowing the appeal in part and dismissing the cross-appeal:
The appeal
Per Adamson JA, Mitchelmore and McHugh JJA agreeing with separate reasons
(1) The evident purpose of s 3B(1)(a) is to exempt tortious conduct which is intentional or deliberate from the limitations on damages in the Act. Section 3B(1)(a) requires the tortfeasor to have an “intent to cause injury” but does not, in terms, require that the actor intend to cause a specific injury or the actual injury for which a plaintiff claims damages: [49]-[50] (Mitchelmore JA); [108]-[113] (Adamson JA); [268] (McHugh JA).
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 applied.
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362; Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Dean v Phung [2012] NSWCA 223 cited.
(2) It was common ground that LSC Cashmere’s actual and subjective intention was to cause physical harm to the appellant when he sprayed her with capsicum spray. The law of damages would become unwieldy if not unworkable, if the injuries which were sustained by a plaintiff as the result of an intentional act done with an intention to cause the injury sustained were required to be dealt with differently from those which resulted from the same intentional act but which were not intended. Having regard to the statutory text and context as well as the adverse consequences for the assessment of damages of a different construction, the exemption in s 3B(1)(a) applies if the claimant proves that the tortfeasor intended to cause injury: [51] (Mitchelmore JA); [129]-[133] (Adamson JA); [268] (McHugh JA).
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445; Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294; Hannam v State of New South Wales (No 9) [2022] NSWSC 648 considered.
Per Adamson JA, Mitchelmore and McHugh JJA agreeing
(3) The propositions put in this Court were at odds with the submissions put to the primary judge. Accordingly, Ground 2 ought not be entertained: [237]-[242] (Adamson JA); [267] (McHugh JA).
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62; Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223; Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, applied in El Assaad v AI Haje [2024] NSWCA 306 cited.
(4) The primary judge was in the pre-eminent position to assess general damages based on his Honour’s assessment of the appellant. The primary judge’s contingent award of damages at common law was not manifestly inadequate: [243]-[245] (Adamson JA).
Per Mitchelmore JA
(5) The appeal from the primary judge’s declining to award exemplary damages did not challenge the primary judge’s findings on the issue, but submitted that his Honour did not bring to account earlier findings about the circumstances in which LSC Cashmere used the capsicum spray that were relevant to how his conduct should be characterised: [81].
(6) The appellant’s claim for exemplary damages was directed at the conduct of the police officer for which the State was vicariously liable, and was put on the basis that his conduct, in an admittedly difficult situation, was at its core motivated by expediency and convenience and without seriously entertaining other options: [77]-[79].
(7) In the context of exemplary damages, heavy-handed, over-reaching conduct can be relevantly contumelious even when there is no subjective advertence to wrongdoing, and even when the disregard of the plaintiff’s rights is unintentional or occurs by conduct believed to be lawful: [76], [82].
Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, considered.
(8) The primary judge found there was a paucity of other options, none of which were compelling given the separate risks that they entailed; and in taking the steps he did, LSC Cashmere did not act expediently. Accepting that he made an error about the force he was permitted to exercise, his Honour made no finding that the steps that he took involved a failure on LSC Cashmere’s part to comply with applicable guidelines, noting that their application was highly contentious. In light of those findings, which were not challenged, the decision not to award exemplary damages was correct: [82].
Per McHugh JA agreeing
(9) Depending on the case that a plaintiff advances, when applying the principles governing the award of exemplary damages to police tort claims, it may be proper to take into account not only the conduct of the particular officer which founds the claim, but also any relevant conduct or omission of the State. Similarly, an award may be for any recognised purpose of exemplary damages (such as denunciation) applicable to the State, again depending on the case advanced: [270]-[278].
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 5; Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912; Bird v DP (2024) 283 CLR 45; [2024] HCA 41; Cullen v New South Wales [2026] HCA 19; (2026) 100 ALJR 886, considered.
(10) In principle, a claim for exemplary damages could have been advanced against the State which included an allegation that, for example, it had failed properly to train LSC Cashmere in the appropriate use of capsicum spray. However, the claim for exemplary damages was advanced on the basis that LSC Cashmere had failed to follow proper procedure, in which circumstances his conduct and state of mind when exercising or purporting to exercise state power as a police officer must be central to the question whether an award of exemplary damages was warranted: [279]-[280].
(11) Having regard to the purpose for which exemplary damages are awarded, it is necessary to form an evaluative judgment as to whether LSC Cashmere’s conduct as a police officer warranted punishment by an award of exemplary damages, notwithstanding the absence of any finding of conscious wrongdoing. Although there were considerations tending in favour of an award of exemplary damages, and LSC Cashmere’s conduct fell short of the standards to be expected of a police officer, on the primary judge’s findings as to why LSC Cashmere used the capsicum spray the conduct did not fall so far short as to warrant punishment by an award of exemplary damages: [281]-[288].
Per Adamson JA contra
(12) The primary judge was in error in regarding LSC Cashmere’s subjective intention as, if not the sole, then a significant, factor in determining whether exemplary damages ought be awarded. LSC Cashmere’s conduct (in twice spraying capsicum spray on an older woman who posed no threat and was suffering from mental illness) was precipitate, high-handed, in disregard of police protocols and at the expense of the appellant’s mental state. Exemplary damages ought be awarded to emphasise to police officers and the public generally the importance of compliance with police protocols which are designed to minimise the use of force: [247]-[260] (Adamson JA).
State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 applied.
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 cited.
Per Adamson JA, Mitchelmore and McHugh JJA agreeing
(13) It was common ground in the Court below that a buffer in the award of damages and a discount to reflect suffering from “non-tortious” events not subject to the appellant’s claim, were appropriate. No error was shown in the primary judge’s award of a buffer in the sum of $10,000: [261]-[263] (Adamson JA).
DC v State of New South Wales [2016] NSWCA 198 applied.
Per Adamson JA
(14) The primary judge’s ultimate determination of the question of causation for the intentional tort of battery was that the psychiatric injury was the natural and probable consequence of the use of capsicum spray. Further, the finding in [434] complies with the applicable legal principles of causation for intentional torts. The notice of contention ought be upheld and the cross-appeal dismissed: [223]-[235].
State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519; Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.
Per Mitchelmore JA (McHugh JA agreeing)
(15) In the court below, in relation to causation, neither party raised as an issue whether LSC Cashmere had an actual or presumed intention to aggravate the appellant’s pre-existing mental disorder. The appellant did not ultimately seek to rely on [434] of the judgment as dealing squarely with that issue, and it fell short of such a finding: [56]-[62] (Mitchelmore JA); [267] (McHugh JA).
State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 considered.
(16) In so far as the State sought to rely on an earlier passage in the judgment, at [343], as constituting a finding that was responsive to the question of presumed intention, it was not properly so characterised, having regard to the context in which the issue of natural and probable consequence was raised in passing in the context of s 3B of the Civil Liability Act and was not otherwise the subject of argument. Ground 1 of the appellant’s notice of contention should be upheld: [63]-[69] (Mitchelmore JA); [267] (McHugh JA).
(17) In circumstances where prior to deploying capsicum spray, LSC Cashmere was aware of the appellant’s history of suicidal ideation, prior interactions with police for reasons of mental health, and her interactions with other police officers on the day in question, the aggravation of the appellant’s mental disorder was the natural and probable consequence of the use of capsicum spray upon her. Ground 3 of the notice of contention should be upheld: [72], [74]-[75] (Mitchelmore JA); [267] (McHugh JA).
MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Adamson JA.
I agree with Adamson JA on ground 1 for additional reasons, and I agree with her Honour on grounds 2, 4 and 6, for the reasons her Honour has given. I also agree with her Honour that the notice of contention on the cross-appeal should be upheld and the cross-appeal dismissed, although for different reasons. I disagree with her Honour on ground 5, which relates to exemplary damages.
In what follows, I express my own reasons for upholding ground 1 and for upholding the notice of contention on the cross-appeal, as well as addressing ground 5.
(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 —
(ia) Part 1B (Child abuse—liability of organisations), and
(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), …
Leeming JA observed in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 (“Croucher”) that there is “some subtlety” in the application of s 3B(1)(a) of the Civil Liability Act: at [33]. In Dean v Phung [2012] NSWCA 223 at [26], Basten JA described the language of the paragraph as “curiously imprecise”, having earlier described it in State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“Ibbett CA”) as “somewhat awkward”: at [197].
The present appeal is concerned with the first of the intentional acts to which s 3B(1)(a) refers, namely, “an intentional act that is done by the person with intent to cause injury or death”. In Croucher, Leeming JA stated that this part of s 3B(1)(a) does not operate “upon the particular cause of action, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act”: at [33] (emphasis in original), see also [117]. In Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 (“Dickson”), Simpson AJA stated at [46]:
“There are, relevantly, two limbs to s 3B(1)(a), proof of each of which is essential if s 3B(1)(a) is to operate to exclude the application of the provisions of the CLA to a claim. The two limbs are:
(i) that the ‘person’ (the putative defendant) does an intentional act; and
(ii) that that act is done with intent to cause injury or death.
In my opinion, the onus of proof of the application of s 3B(1) lies on the plaintiff: see Fede v Gray bht New South Wales Trustee and Guardian (2018) 98 NSWLR 1149; [2018] NSWCA 316 at [119]. …”
The word “injury” in s 3B(1)(a) bears its ordinary and natural meaning and would encompass the harm occasioned by an apprehension of physical violence: Ibbett CA at [11] (Spigelman CJ). Basten JA observed in Ibbett CA that “the concept of injury in s 3B(1)(a) is not restricted to, although it would include, personal injury”: at [218].
It is apparent from Simpson AJA’s statement of the two limbs of s 3B(1)(a) that the concept of intention appears in both: “first with respect to the act (which must be ‘intentional’), and then with respect to the consequence (‘with intent to cause injury’)”: Dickson at [7] (Basten JA). Basten JA described the two uses of intention as reflecting “what are sometimes described as general intent and specific intent”, citing the following passage from Balkin and Davis, Law of Torts (4th ed, 2009, LexisNexis Butterworths) at [3.2] about the state of mind of the defendant in a claim for battery:
“An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant ‘meant to do it’. It is not a requirement of the tort of battery that the defendant’s intention extended to injuring or harming the plaintiff; it is enough that the defendant intended to perform the act which caused the offensive conduct with the plaintiff.”
It follows that the language of “intentional tort” is “an unsafe guide to whether s 3B(1)(a) is engaged”: Croucher at [34] (Leeming JA). In relation to the tort of battery, the additional requirement, that the act be done “with intent to cause injury”, means that many forms of battery will not fall within s 3B(1)(a): Dickson at [7].
The intention that is required by “with intent to cause injury” is an actual, subjective, intention: Dickson at [8] (Basten JA), [19] (White JA), [181] (Simpson AJA). Ibbett CA is an example of a case in which such intent was established on the part of the police constable who pointed his gun at Mrs Ibbett and said, “Open the bloody door and let my mate in”. The trial judge found that the “combination of that action and the accompanying words were more than sufficient to satisfy the requirements of immediate apprehension of harm on the part of the plaintiff intentionally caused by [Constable] Pickavance and therefore amounted to an assault”: at [14]. Spigelman CJ stated at [16]:
“These findings of fact that Constable Pickavance acted with an intention to cause the relevant injury, i.e. an apprehension of physical violence*,* were open to his Honour, indeed, in my opinion, they were correct. Constable Pickavance did not merely point the gun at Mrs Ibbett in some kind of reflex action. He pointed the gun at her and demanded she do something whilst under the threat. The conclusion which his Honour drew that he intended to cause injury in the form of an apprehension of physical violence was justified.”
“The ordinary and natural meaning of the word ‘intends’ is to mean, to have in mind. … [W]hat is involved is the directing of the mind, having a purpose or design.”
“…[A] person is ordinarily understood to intend a result by his or her action if the person means to produce that result. What is involved is the directing of the mind, having a purpose or design. So understood, intention refers to a person’s actual, subjective, intention...”
Simpson AJA concluded in Dickson that the phrase “intent to cause injury” in s 3B(1)(a) should be treated in the same way as the equivalent words considered in SZTAL and means “at least, ‘actual subjective, [I would add, formulated] intention’, to which the defendant has turned his or her mind”: at [186]. Her Honour considered that taking a strict view of the meaning of “intent to cause injury” was supported by the approach in s 33 of the Interpretation Act 1987 (NSW) and the expressed purpose of the enactment of the Civil Liability Act “to modify or reduce, to a significant extent, the availability of damages for negligently inflicted personal injury”: at [187]-[188]. Noting, specifically, Div 5 of Pt 1A, which deals with the award of damages for injury suffered during engagement in recreational activity, her Honour considered that “[i]f ‘intent to cause injury’ is taken to include something less than actual, subjective, intention such as recklessness, or ‘imputed’ or presumed intention, many sports or other recreational activities to which the CLA is clearly designed to apply would fall outside its ambit”: at [189].
Returning to the circumstances of Dickson, Simpson AJA concluded at [191]:
“For the purposes of the present case, it is sufficient to say that to prove ‘intent to cause injury’ Mr Dickson needed to prove more than that injury was inevitable or that, in tackling Mr Dickson as he did, Mr Fletcher foresaw (or ought to have foreseen) or anticipated injury, or that Mr Fletcher was reckless in the manner in which he performed the tackle, and more than that, as a generality, tackling in rugby league is likely and is intended to result in some injury, even minor. His proof did not go so far.”
(Emphasis added.)
“The word appears in s 3B(1)(a) as an abstract concept, but it is clearly intended to refer, if not to the injury (or death) which is the subject matter of the claim, at least to an injury of that character. (It might not matter that the defendant intended to strike or shoot A and cause injury to A, but hit and injured B: such a case would likely engage s 3B(1)(a) although there was no intent to injure B.) The section refers to the injury which has resulted in compensable loss.”
One thing that is clear from this passage is that his Honour was not intending to confine the concept of “injury” in s 3B(1)(a) to the particular injury suffered. It is apparent from the first sentence that “injury” would extend at least to an injury that is “of that character”. Consistently with this reading, the example that his Honour provided in the bracketed sentence, by way of explanation of the first sentence, referred to an intention to strike or shoot “and cause injury to” a particular person, without identifying any precise injury (emphasis added). That being shot might result in multiple and varied injuries, and may extend to psychological harm, could suggest that his Honour was not intending to be as prescriptive about the meaning of “injury” as the paragraph might otherwise suggest. Nonetheless, it is difficult to reconcile the generality of the terms in which the example is expressed with the first and final sentences in the paragraph, which appear to stipulate that in order to engage the exclusion in s 3B(1)(a) it is necessary to establish an intention to cause the injury that is the subject of the claim, or an injury of that character, and which “has resulted in compensable loss”.
The scope of Basten JA’s intended meaning can be gleaned from the following paragraphs of his Honour’s reasons in Dickson. In [11]-[13], his Honour described the evidence before the trial judge as supporting several gradations of injury:
Tackling is generally intended to be sufficiently vigorous to bring the player to the ground with force; in such cases it is foreseeable that on occasion a twisted knee or ankle may occur, but there is no specific intent to cause injury, rather to gain an advantage in a competitive game.
There are injuries which may result from acts which contravene the rules of the game, such as a dangerous throw in rugby. Such conduct will not usually be intentional, in the sense of a subjective intention to act outside the rules so as to injure the other player, inter alia because such conduct may result in the player being sent off or otherwise penalised.
There is the possibility of an intentional act of a kind likely to cause minor injury, which is intended, but which also causes serious injury which is not intended.
Basten JA described the appellant’s case in Dickson as involving the proposition “that a more serious, but unintended, injury would nevertheless fall outside the scope of the Civil Liability Act, because liability for the act (namely the tackle) involved an intention to cause some injury”: at [14] (emphasis in original). His Honour drew that inference from the pleading, in which the appellant alleged that:
“… although he did not intend to cause the serious injury which in fact occurred, he did intend to cause the plaintiff some minor and temporary injury from contact with the ground, this being an inherent and inevitable feature of vigorous rugby league tackles.”
“It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant’s head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act.”
(Emphasis added.)
Basten JA’s focus in [15] was the intention in doing the “act” giving rise to the injury that was the subject of the appellant’s claim. In Dickson, the injury for which the appellant was claiming damages resulted — on Basten JA’s analysis — from Mr Fletcher falling on the appellant’s head. His Honour concluded that Mr Fletcher did not do that act intentionally, let alone with an intention to cause the appellant injury.
What Basten JA said at [15] was an answer to the appellant’s reliance on s 3B(1)(a). However, it did not answer precisely the way the appellant had pleaded it, which was that there was a single, intentional act — the tackle — done with intent to cause some injury but not injury of the severity that eventuated. The answer to that pleading in Dickson was the primary judge’s finding of fact that Mr Fletcher did not subjectively intend, by the tackle, to cause the appellant injury, a finding that all members of the Court accepted. Basten JA’s analysis, which involved splitting up the act of tackling into different components, was unnecessary in light of the primary judge’s finding.
The third member of the Court in Dickson, White JA, considered it “unnecessary to express any view as to any possible implied limitations on the scope of the words ‘an intentional act that is done by the person with intent to cause injury or death’ in s 3B(1)(a)”. Nonetheless, his Honour recognised that the doubt that arose in a case such as Dickson was (at [33]):
“…how the literal meaning of those words can be accommodated with the evident legislative intention expressed in Pt 1A Div 5 to limit a defendant’s liability in negligence for harm to a plaintiff resulting from a recreational activity engaged in by the plaintiff where an intention to cause some degree of injury might be an inherent part of the sport (such as boxing), or is likely or common (in various degrees) in sports such as in rugby league, rugby, Australian football and football.”
“It is arguable that the words ‘with intent to cause injury’ should not be read as meaning ‘with intent to cause the injury’. That is, it is arguable that the operation of s 3B(1)(a) is not excluded because the injury suffered is more severe than that that the tortfeasor intended to inflict.”
“As Simpson AJA observes, the primary judge’s reservations as to the correctness of the view of Hulme J in McCracken that s 3B(1)(a) is not limited to criminal conduct did not affect his Honour’s factual finding that Mr Fletcher did not intend to inflict an injury on the appellant. In the light of that finding, the question whether s 3B(1)(a) is confined only to criminal conduct as the primary judge suggested it might be, or applies only if the defendant intends to cause the particular injury suffered by the plaintiff (as Basten JA suggests), does not arise for decision.”
(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.
(2) The following awards of damages are excluded from the operation of this Part:
(a) an award where the fault concerned is an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct,
“Under clause 9 the bill will apply to awards of personal injury damages. This includes personal injury damages awards made in public liability claims and health care claims. Clause 9(2) sets out the awards that are excluded from the operation of the bill. Importantly, intentional acts done with intent to cause injury or death or acts involving sexual assault are excluded. This exclusion ensures that the compensation for injuries arising from serious criminal acts is not limited by the bill. …”
(Emphasis added.)
The emphasised passage confirms the correctness of what Leeming JA said in Croucher, namely, that the focus of the exclusion is on an act that is done with intent to cause injury or death and what injuries arise from that act. Consistently with that focus, s 9(2) operated to exclude “awards of damages” from the operation of Part 2. The Explanatory Note to the Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW) similarly described s 3B as designed to deal “with how the [Act] is to apply to intentional criminal acts” (emphasis added). Section 3B(1) continues to use the language of “award of damages” but as part of the broader phrase, “to or in respect of civil liability (and awards of damages in those proceedings)” (emphasis added). The delineation of awards of damages by reference to the “proceedings” supports Adamson JA’s observations (at [130]) that the legislature did not intend the operation of the Civil Liability Act to be excluded as to part of an award of damages in proceedings for civil liability arising from a single act.
The State sought to make two points from the second reading speech to the original Act. First, the object of the exclusion was to preserve unrestricted compensation for injuries “arising from serious criminal acts”, going on to submit “that is, the injuries the deliberate infliction of which gives the act its serious criminal character: the injuries intended”. Secondly, the mischief to which the exclusion was directed, that the deliberate wrongdoer should not have the benefit of statutory restrictions designed for insurable, risk-based liability, is not engaged by an award of damages for an unintended injury of a different character.
The conclusion of the first point does not follow as a matter of logic from the identified object of the exclusion. A criminal act may be done with intent to cause injury and result in injury that was either not intended or was of a different character to the injury that was intended. For example, an intentional act done with intent to cause grievous bodily harm might also result in psychological harm. Alternatively, as in Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81 (“Irlam”), a wrongdoer might not have an intention to cause a specific injury. The mischief that the State identified in its second point, that the deliberate wrongdoer not have the benefit of statutory restrictions, would also be engaged in those circumstances, subject to establishing that the wrongdoer had an actual, subjective intention to cause injury.
The primary judge in the present case described the reasons for judgment of Harrison J in Ray v Southon [2022] NSWCA 267 (Ward P and Griffiths AJA agreeing) as having approved Basten JA’s approach in Dickson, relying on what his Honour said at [41]. It is not clear to me that Harrison J did so, at least not in terms. The respondent in was injured when the appellant assaulted her by grabbing, shaking and pushing her, causing the appellant to fall back and strike her head on a coffee table: at [3]. In contending that s 3B(1)(a) applied, the respondent had submitted to the primary judge that the appellant intended to cause some injury to her, and it did not matter that on his account he may have only intended to push her out of the way. The findings of the primary judge in that case (who was also the primary judge in the present case) included the following:
“[110] … The push was preceded by an aggressive grab of both her shoulders and a point in time when he gritted his teeth and was foaming at the mouth. In my judgment, in that moment of rage, no matter how fleeting it was, he completely lost his self-control. He intended to injure her or, what amounts to the same thing, cause harm to her. It did not matter how that harm was likely to be occasioned: it did not matter that he did not appreciate that he was pushing her back in the direction of the coffee table or was not conscious of its location nearby. It did not matter that he did not foresee the extent of the injury his conduct so caused, such as the plaintiff falling back and her head impacting on the coffee table. Further, in answer to the defendant’s argument, it did not need to be ‘planned’ for injury to be intended.”
(Emphasis added.)
The appellant contended in Ray v Southon that the trial judge erred in concluding that he intended to injure the respondent at the time he pushed her. He accepted that he intentionally did an act which had a consequence of causing her injury, but submitted that he did not have a formulated, specific intention to cause her injury. In rejecting that ground of appeal, Harrison J considered that framed in that way, “the appellant appears to be submitting that while injury may have been the result of his act in pushing the respondent, he did not have the intention to cause that injury or indeed any injury at all”. Harrison J considered that submission to be a direct challenge to the finding of the primary judge that I have extracted above, without the appellant offering a basis for why that finding should be set aside: at [42].
It is the case that before reaching this conclusion, Harrison J stated, at [41], that it was “timely to note” what Basten JA said in Dickson at [10] and [15]. However, that was in response to the appellant’s reliance on those paragraphs to support the proposition that in order for the respondent to engage s 3B(1)(a), the appellant had to be found to have had an actual, formulated, specific intent to cause the respondent the injuries she sustained, or injuries of a similar character: at [40]. The manner in which Harrison J referred to what Basten JA said in Dickson at [10] and [15] does not suggest that his Honour understood those paragraphs to be authority for the narrow proposition for which the appellant in Ray v Southon invoked them.
The primary judge in the present case also referred to Adamson J’s decision in Hannam v State of New South Wales (No 9) [2022] NSWSC 648 as having applied Basten JA’s dicta in Dickson. In concluding that s 3B(1)(a) did not apply, Adamson J relied on Basten JA’s reasoning in Dickson. However, as in Dickson, the difficulty facing the plaintiff in Hannam was that the relevant act of the police officer on which the plaintiff relied — tasering the plaintiff (in fact the taser misfired) — was not done with intent to cause the plaintiff injury, with her Honour accepting the police officer’s evidence in that regard: at [69].
By contrast, in Irlam, Cavanagh J expressed doubts about what Basten JA said in Dickson at [15]. The appellant in Irlam was injured following a motor vehicle accident. On the day in question, the appellant was standing adjacent to the open driver door of the respondent’s vehicle when the respondent put the vehicle in reverse and accelerated. The appellant took hold of the frame of the door and the roof, and was able to step on to the door sill and cling to the roof. As summarised by Cavanagh J at [68], after about 10 metres the appellant yelled to the respondent to stop the car, to which the respondent laughed and told him to jump. The respondent then turned the steering wheel sharply to the right, with the result that the appellant was thrown from the vehicle and landed down on the bank of an adjacent creek and suffered injury.
“There is no issue that the driving of the vehicle was intentional. The issue is whether the respondent drove the vehicle in such a manner that was intended to cause injury. Whilst it has been suggested that injury means the injury the subject of the claim (see Basten JA in Dickson at [15]), I do not consider that it is necessary for a plaintiff to establish that a defendant intended to cause the precise injuries sustained.”
In finding that the primary judge erred in not accepting that the respondent drove with the intention of causing injury to the appellant, Cavanagh J referred to a number of facts, including: his reversing the car meant that the appellant needed to avoid being hit by the car door; the appellant ultimately clung onto the vehicle whilst the respondent continued to reverse; the appellant asked the respondent to stop, and the respondent replied telling him to jump, seemingly laughing at the same time; and then, when the appellant did not jump, the respondent executed a sharp turn: at [168]. His Honour concluded that the compelling inference was that the respondent drove the vehicle in such a manner as to cause injury to the complainant: at [173]-[174]. Simpson AJA and N Adams J agreed with his Honour’s reasons on this ground: at [15], [21].
The circumstances in Irlam explain the doubt that Cavanagh J expressed about [15] of Basten JA’s reasons in Dickson, and why it is problematic. There was no direct evidence in Irlam of the respondent’s intention to cause the precise injuries that were the subject of the appellant’s civil liability claim. Nonetheless, the respondent’s intentional acts could not have been done with anything other than a subjective intention to injure the appellant. In Dickson, Simpson AJA recognised that such inferences could be drawn, provided the inference was as to an actual, subjective intention. Returning to Simpson AJA’s identification of the elements of s 3B(1)(a) in Dickson, the appellant in Irlam did an intentional act; and did that act with an actual, formulated intent to cause injury to the respondent, from which it followed that by reason of s 3B(1)(a), the provisions of the Civil Liability Act did not apply to civil liability in respect of the appellant’s intentional act and the award of damages in those proceedings.
In the earlier decision of Fuz v Carter [2006] NSWSC 771, Studdert J had reached a similar conclusion, in response to an argument put by the defendant that “injury” in s 3B(1)(a) meant the injury actually suffered, whereas the plaintiff submitted that s 3B(1)(a) excludes the operation of the Act where an intentional act is done with intent to cause some injury, albeit non-specific. His Honour stated:
“[57] … If the exclusion provided for by s 3B(1)(a) is only to have effect in cases where the person who committed the assault intended to cause the precise injury inflicted, this would markedly restrict the circumstances in which the provisions of the Act are not to apply. This is simply because of the difficulties which would generally arise in determining that the tort feasor acted with intent to cause the precise injury suffered. For example, absent some admission by the tort feasor who punched his victim in the face, it would be difficult for a court to conclude that the tort feasor intended to cause blindness, where blindness was caused, as a consequence of a blow striking the victim in the eye.
[58] Section 3B(1)(a) does not expressly provide: ‘with intent to cause the injury or injuries suffered’, nor does it contain words to that effect. Absent such precise restrictive language, I conclude that the application of the Act is excluded provided the conduct to be considered is done ‘with intent to cause’ some injury.
[59] In the present case the assault could not be regarded as a trivial one. In addition to the impact of the blows, the plaintiff was pushed down the stairs, and I am satisfied on the balance of probabilities that in doing what he did the first defendant acted with intent to cause injury. Hence, s 3B(1)(a) applies and damages in this case are to be assessed in accordance with common law principles.”
(Emphasis in original.)
The circumstances of the present case are closer to those in Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311, in which the plaintiff sued the State for damages for a number of torts committed by a serving police officer who arrested him: at [1]. In the course of effecting the arrest of the plaintiff, the relevant officer and another officer forced the plaintiff into a concrete wall, and later down onto the pavement. Both officers exerted force against him, so as to lawfully restrain him: at [2]. The plaintiff suffered physical injuries to his face and head, and fractured ribs. He also alleged that he suffered a consequential post-traumatic stress disorder: at [2].
Campbell J found that the acts of the police officer and his colleague were intentional acts. His Honour accepted that neither officer in their deliberate actions intended to injure the plaintiff’s face, fracture a rib, or inflict psychological harm in the form of a post-traumatic stress disorder. On the other hand, their intention in exerting force on the plaintiff in the various ways “was to inflict pain of such a degree and for such duration as would bring him down to a position of submission on the floor where he could be restrained by handcuffs”: at [190]. His Honour could see “no reason why the deliberate infliction of physical violence intended to cause pain and submission to the will of the police officer is not an intent to cause injury within the meaning of the Act”: at [193]. In so concluding, his Honour stated at [186]:
“The requisite intent is an actual specific intent to do some injury. It is not necessary that the defendant or here, [the police officers], actually intended to inflict the specific injuries that ensued as a natural and probable consequence of their acts.”
It is the case, as the primary judge observed, that Campbell J’s decision pre-dated Dickson. However, Campbell J’s requirement for an actual specific intention was consistent with the Court of Appeal’s holding in that case. The only difference between Campbell J’s approach and Dickson was in terms of what Basten JA said, which, as I have explained above, may not have been intended as narrowly as first appears and, if it was so intended, results in too narrow a construction of the provision.
Turning, then, to the present appeal, the point of construction arose in the following way. In the Statement of Claim, the appellant pleaded that by reason of, relevantly, the battery committed by LSC Cashmere, she “suffered injury, loss, and damage including by way of pain, embarrassment, humiliation, mental anguish, injury to her feelings, anxiety, distress and/or inconvenience”. The Statement of Particulars identified the “particulars of injuries received” as “chronic post-traumatic stress disorder with associated depressive and anxiety symptoms”. In closing submissions, when questioned about the application of s 3B(1)(a), the appellant’s counsel submitted that LSC Cashmere held the subjective intention to cause some pain to the appellant in terms of the pain and burning sensation in her eyes. The following exchange occurred a little later in the argument:
“HIS HONOUR: Are you saying that insofar as the battery is concerned, that it is mental illness consequent to physical injury? I mean she [sic] a temporary burning sensation. That could be used as a physical injury.
GREY: It’s in--
HIS HONOUR: But your claim, at least so far as the battery is concerned or perhaps also I suppose in the terms of deprivation of liberty comes into it, that your client’s claim is really one of mental illness or an aggravation of a mental illness.
GREY: That’s right. That’s a consequence of both the initial injuries, that is, the battery and the physical response to it, and the circumstances of the battery.”
“Ms Music contends that the injury giving rise to her claim was the exacerbation or aggravation of PTSD consequentially upon the infliction of physical injury. The physical injury was constituted by the infliction of pain, albeit of relatively [short] duration. Further, the mental illness of which she complained was a natural consequence of the pain that was inflicted by the spray. … The effect of this approach was that so long as LSC Cashmere intended to inflict some, or any injury (the pain in the eyes) it did not matter that he did not intend to cause psychological harm.”
(Emphasis in original.)
The appellant submitted that the primary judge erred in characterising the injury giving rise to her claim as only the PTSD aggravation, rather than the physical injury. It is apparent from the above extract, however, that his Honour did not make that error. The primary judge well understood that the issue was whether the physical injury that the appellant sustained, and which LSC Cashmere intended, operated to take the injury that gave rise to her claim for damages – being the exacerbation of PTSD – outside the scope of the Civil Liability Act.
Counsel for the State at trial accepted that the burning pain caused by the capsicum spray, even if temporary, could amount to an injury for the purposes of s 3B for the battery and did not seek to be heard against the contention that in administering the spray, LSC Cashmere sought to control the appellant’s behaviour by means which he knew would cause her pain. Instead, the State submitted that the primary judge should deal separately with the physical and psychological injuries. LSC Cashmere may have intended to cause a slight, transient physical injury, but it was another thing to say that he subjectively intended psychological damage as a consequence of a physical injury of that nature and duration.
The primary judge did not accept that the exacerbation of PTSD “was consequential from physical injury” (emphasis in original), contrasting it with “a case, say, where depression arose from suffering of pain”: at [338]. His Honour sought to highlight the distinction by adopting terminology in Part 3 of the Act, describing the appellant’s case as one of “pure mental harm” rather than “consequential mental harm”. The appellant was critical of his Honour’s use of this terminology. However, there was no ground of appeal expressly challenging the finding, perhaps implicitly acknowledging that the terminology was not as important as the underlying point, which his Honour made by reference to the following passage from the reasons of Campbell J in Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160, at [83]:
“Those blows and his injuries are part and parcel of the incident. But I find it difficult to accept that the PTSD is merely consequential upon those physical injuries. Rather, in my judgment, that psychiatric condition is a case of pure mental harm being an independent injury arising out of the fear for his life suffered by Mr Wright as a result of George assaulting him and attempting to throw him off the balcony.”
(Emphasis added.)
The primary judge accepted that the asserted psychological harm constituted a form of “injury” that was capable of falling within the notion of “injury” for the purposes of s 3B(1)(a) of the Act: at [339]. However, applying what Basten JA said in Dickson at [15], his Honour considered that the appellant also needed to establish that “the tortfeasor (actually and subjectively) intends ‘the injury which has resulted in compensable loss’”: at [340]. His Honour considered that the injury in the present case fell into the third of the three potential gradations of injury that Basten JA identified in Dickson, and referred to by Simpson AJA at [191], and that for the reasons his Honour explained in [15] of Dickson that was insufficient: at [341].
The circumstances of the present case did not fall within the third gradation of injury to which Basten JA referred in Dickson, nor within what Simpson AJA said in [191]. Their Honours were referring not to an act done with an actual and subjective intention to cause injury, but to an act which, to use the language of Simpson AJA at [191], “as a generality” “is likely and is intended to result in some injury, even minor”. As her Honour stated, Mr Dickson needed to prove more than that: he needed to prove that Mr Fletcher had an actual and subjective intention to injure him by the tackle.
The primary judge considered that the textual and contextual considerations tended “to support a narrow interpretation of the carve out in s 3B(1)(a) generally and the expression ‘intent to cause injury’ in particular where intentional acts are carried out negligently”, referring by way of example to s 5A of the Civil Liability Act: at [341]. His Honour stated (footnotes omitted):
“Parliament was undoubtedly aware that there are multifarious activities in life that are, to some extent socially beneficial (or at least tolerable), but which notoriously and inherently involve the intentional infliction of physical contact upon persons and an associated risk of injury. Some of these intentional activities are seen in the jurisprudence that has built up about s 3B(1)(a): from surgery, to recreational body contact sports and, as in this case, the use of state-sanctioned force. When Parliament generally intended to reduce the incidence of awards of damages for personal injuries, it is not readily to be supposed that where state-sanctioned force was honestly, albeit negligently, inflicted for a legitimate or lawful end, the availability of restrictions on liability [and] regulation of damages should be taken out of the realm of Parts 1A and 2 (respectively) of the CL Act.”
What Parliament may or may not have been aware of at the time of enacting s 3B(1)(a) is secondary to the text of the provision. Contrary to the State’s submissions, the textual link which Parliament posited was not between the award of damages and “the injury the actor intended”. As White JA in Dickson and Cavanagh J in Irlam both observed, the text of the provision does not suggest that the intentional act in question must be done with intent to cause the precise injury.
The respondent submitted that on any other construction of s 3B(1)(a), the whole of the Civil Liability Act would be “disapplied to an award of damages for an injury which was never intended, merely because some other and different injury was”. However, it remains the case that the intent to cause injury must accompany a particular intentional act. If the intentional act was done with an actual subjective intent to cause injury, the provision operates in accordance with its terms. Thus, in the present case, the State conceded that in administering the spray on the appellant, being an intentional act, LSC Cashmere intended to cause injury. Section 3B(1)(a) was engaged and it operated to exclude the application of the Act in respect of civil liability “in respect of” that act, and the Civil Liability Act did not apply to the award of damages in those proceedings.
I agree with Adamson JA that ground 1 of the appeal should be upheld.
(a) LSC Cashmere did not intend the harm; and (b) the harm was not the natural and probable consequence of the tortious conduct.
By ground 2, the State contended that the primary judge erred, at [435], in finding that LSC Cashmere’s conduct in deploying the capsicum spray materially contributed to her injury.
As Adamson JA observes in her Honour’s reasons below (at [224]), the Court of Appeal in State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 (“Spedding”) summarised what is required to prove that the harm from an intentional tort should sound in damages at [291]:
“In order to prove that the harm from an intentional tort ought sound in damages, the injured party is required to prove, first, causation, namely, that the tortious act caused the harm and, second, that the tortfeasor had an actual or presumed intention to cause the harm. The tortfeasor’s intention to cause the harm will be presumed if the harm is the natural and probable consequence of the tort. Thus foreseeability of harm has no role to play in limiting the injured party’s damages. These propositions were confirmed with respect to the tort of injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [13]-[14] (Gleeson CJ), [73]-[79] (Gummow J), [114] (Kirby J). This Court has treated these principles as being of general application for the recovery of loss for intentional torts: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing).”
(Emphasis added.)
Referring to this passage, the State’s central contention on ground 1 of the cross-appeal was that the primary judge had addressed the first question but not the second. That his Honour did not consider the issue was unsurprising in circumstances where neither party raised it. As his Honour observed in the opening paragraph of his consideration of causation, it was common ground that the appellant suffered from a pre-existing illness. What was in dispute “was whether any tort by the police officers exacerbated her PTSD in a material way”: at [347]. When his Honour turned to resolving the issue, his Honour again noted that the debate between the parties on the issue of causation “was conducted upon what appeared to be an accepted premise that it was for Ms Music to prove that LSC Cashmere’s conduct in deploying the capsicum spray against her materially contributed to her injury”: at [421].
As the State submitted, the focus of the analysis that followed was the first question in Spedding, with his Honour ultimately concluding at [435]:
“Factual causation is therefore made out, for the purposes of s 5D(1)(a) of the CL Act (on the premise, as I have found, that the provisions in Part 1A apply) and, at any rate, causation would have been found under general law principles. I did not understand the State to argue that normative considerations would preclude acceptance that the ‘scope of liability’ requirement in s 5D(1)(b) was also established. I find that LSC Cashmere’s deployment of the capsicum spray caused an exacerbation of Ms Music’s preexisting PTSD.”
In so concluding, the primary judge made the following findings:
On the balance of probabilities, LSC Cashmere’s conduct produced a detrimental difference in the appellant, and her pre-existing PTSD was further disturbed or made more “chronic” as a result of the spray being deployed: at [427].
The expert evidence was consistent with that finding: at [433].
Although the events of 30 September 2021 may not have been the first time the appellant had a clear conflict with police, “what police officers did that day, including primarily the use of the spray, was inherently the type of thing that would cause a mentally troubled person nightmares or flashbacks since there was the direct infliction of force upon her body”: at [434].
This was the first occasion that police officers inflicted force on the appellant, and the shock that she expressed, in close proximity to the hearing, that she would be mistreated by the police, struck his Honour as authentic: at [434].
Further, in the lead up to being sprayed, the appellant was “already, as it were, ‘on the run’ from police, or evading them”. That conduct was itself “an apparent manifestation of mental disturbance” and was taken to a new level when the appellant was the object of a police officer’s capsicum spray: at [434].
In her written submissions on the appeal, the appellant emphasised [292] of Spedding, which provides:
“Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts:
(1) a tortious act need not be the sole or principal cause of harm to be compensable; it is sufficient if it is a material or contributing cause of harm;
(2) the wrongdoer must take the injured party as he or she finds him or her. Thus a wrongdoer who causes a pre-existing medical condition in the injured party to become symptomatic is liable for such harm as the wrongdoer (who bears the onus) cannot establish would have eventuated but for the tortious harm: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; and
(3) a wrongdoer is not relieved of the consequences of the wrongdoing because the injured party would not have suffered as he or she did unless other contributing factors had existed: Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ) and 170-171 (Windeyer J); [1965] HCA 34.”
The appellant submitted that although his Honour referred to s 5D of the Civil Liability Act, the causation analysis was consistent with the principles identified in [292] of Spedding. So much may be accepted, but it does not answer the State’s complaint that his Honour’s causation analysis did not address the issue of actual or presumed intent. Contrary to the appellant’s written submissions, his Honour’s conclusion at [435] could not reasonably be construed as embracing a finding of presumed or imputed intent in circumstances where that issue did not otherwise form part of his Honour’s causation analysis.
The closest his Honour came in the causation analysis to addressing presumed intent was his Honour’s finding, in [434], that “what police officers did that day, including primarily the use of the spray, was inherently the type of thing that would cause a mentally troubled person nightmares or flashbacks since there was the direct infliction of force upon her body”. The appellant in writing relied on this passage as supporting that his Honour had had regard to the common law principle that intent for a consequence of a tort will be imputed or presumed if the consequence was a “natural and probable consequence”.
At the hearing, however, senior counsel for the appellant did not seek to characterise this finding as one that dealt squarely with the issue of whether the exacerbation of the appellant’s PTSD was the natural and probable consequence of LSC Cashmere deploying the capsicum spray, in circumstances where the issue had not been raised below. What his Honour there said about the event being inherently likely to cause nightmares and flashbacks fell short of a finding that deploying the spray was inherently likely to exacerbate PTSD; and senior counsel for the appellant did not seek to contend otherwise.
The next step in the State’s argument was to seize upon what his Honour said when addressing the operation of s 3B(1)(a), in support of its submission that the second requirement in Spedding could not be satisfied. The State placed particular reliance on the following passage:
“[343] I am not persuaded that this is so [ie, that LSC Cashmere actually and subjectively intended to cause the exacerbation of PTSD]. I would not have been convinced under any less demanding legal requirement that exacerbation of a pre-existing mental illness was either inevitable, or the natural or probable, consequence as a result of the infliction of the spray or that LSC Cashmere was reckless to that possibility; even if it might arguably have been foreseeable. In any event, under the prevailing interpretation of the second limb of s 3B(1)(a), LSC Cashmere did not actually and subjectively intend that by spraying Ms Music, the result would be the exacerbation (or even institution or creation) of psychological harm.
[344] He intended to safeguard her interests, in having her mentally assessed and treated by means of using a spray which he knew would occasion a temporary burning sensation in her eyes whose effects could soon be relieved against.
[345] This conclusion as to LSC Cashmere’s state of mind is buttressed by at least a number of considerations. First, he was acting in circumstances of what he perceived (rightly or wrongly) as one of urgency and which involved no pre-meditation. Generally, as I have found, far from wanting to cause injury to Ms Music, LSC Cashmere’s motive was to detain her and get her to a mental health facility as soon as possible so as to reduce the risk that she might harm herself. That is to say, by getting her to the hospital as quickly as possible, she could be assessed by qualified professionals and, naturally, receive such treatment as they might be appropriate for her to receive to help her deal with her mental health issues. (In the events that occurred, although she was discharged from Blacktown Hospital, a clinical note recorded that Ms Music was expected to receive ‘Acute Care Follow Up’.) This was the antithesis of his intending to cause psychological damage. Secondly, although he knew that the spray might cause a burning sensation, his belief would likely have been that would be only temporary, transient or fleeting. If he did not arrange for it to be on hand himself, he knew that an ambulance was on hand to ‘de-contaminate’ and eliminate the burning sensation as soon as practicable; and how practicably that could occur was affected by how quickly police could restrain and get Ms Music to the paramedics.”
(Emphasis added.)
The State submitted that it was apparent from this extract that the primary judge had made findings dealing with both actual and presumed intention. As to presumed intention, the State relied on the passage in [343] that I have emphasised, submitting that it constituted a finding that was responsive to presumed intention as discussed in Spedding at [291]. The State further submitted that this finding was consistent with other findings that his Honour made, namely: (i) the exacerbation of PTSD was not consequential upon the intended physical injury, and was one of “pure mental harm” rather than “consequential mental harm” (at [338]); (ii) the vast preponderance of the appellant’s PTSD, anxiety and depression was properly attributable to her former partner’s enduring influence, such that the extent of the aggravation of her PTSD due to the conduct of police was comparatively small (at [444]); and (iii) her susceptibility to police-related triggers was “solidly ingrained well before” the incident (at [443]).
On the one hand, the primary judge at [343]-[345] was considering whether LSC Cashmere had an actual and subjective intention to cause the mental harm for which the appellant claimed, having found, at [338], that the mental harm was not consequential upon the spraying of the capsicum spray. His Honour found that LSC Cashmere did not have an actual intention that by spraying the appellant the result would be “the exacerbation (or even institution or creation) of psychological harm”. His Honour’s moving from that finding to a discussion of natural and probable consequence, being the relevant question for presumed intention, was consistent with the two inquiries required in [291] of Spedding.
However, there was force in the appellant’s submission at the hearing that it was necessary to approach this part of the judgment — and in particular the emphasised passage in [343] — with caution, in circumstances where his Honour was addressing a different point. In a notice of contention on the cross-appeal that the appellant filed following the hearing of the appeal, the appellant’s primary contention was that the part of [343] on which the State relied was not a finding for the purposes of common law causation for psychiatric injury suffered from battery, or causation as it is described in [291] of Spedding (ground 1).
On my review of the transcript, the State raised the issue of natural and probable consequence but briefly, in closing submissions on s 3B(1)(a) of the Civil Liability Act. The State’s then counsel postulated that if one were looking at the common law test of natural and probable consequence, he was not sure that it would even meet that test. He also submitted that it was not a reasonable and probable “expectation” that someone who was subdued was going to present subsequently in the way that the appellant did, which spoke “loudly” to the conclusion that the police could not have intended such an injury.
“[238] All of the officers accessed her history of callout; the CAD message indicated the informant’s message of the threat to kill [herself]; on arrival, Constables Alo and Casey (and later Cashmere) saw her behaving in a way irrationally. They all heard her language, rambling. In the case of Constables Alo and Casey (at least), Ms Music indicated that she was cognisant of why the police were there and she took wild steps to evade police, including her instruction to Mr Settineri [to] barricade the door (a matter she told police and about which Casey gave evidence of hearing the thud of the barricading); she had rejected of [sic] methods of oral engagement (being the ‘nice’ entreaties by Constable Casey and the more authoritarian approach of LSC Cashmere); they all heard Ms Music telling Mr Settineri not to open the door. This is more than might be expected.
…
[247] In addition to her verbal threat to kill herself, Ms Music in short presented to LSC Cashmere as someone with a known mental health history, and who had appeared to behave erratically or irrationally to police officers whom he held confidence in.”
“[110] The focus of compensatory damages, in rectifying wrongful acts and repairing their consequences (so far as money can do) is upon ‘restoration’ of the plaintiff. By contrast, exemplary damages, in punishing a defendant, ‘have to be looked at from the side of the defendant’. In that respect, exemplary damages are an example of the point made by Windeyer J that the roots of crime and tort in English law are ‘greatly intermingled’ with, at common law, the criminal law and the law of torts often being ‘different ways for a victim to pursue justice for the same wrongful act’. Today, the purposes of the criminal law and the law of torts remain closely associated, as seen in statutory provisions for civil penalties and for criminal injuries compensation. There remains no ‘sharp cleavage’ between the criminal law and civil law. Consistently with this interaction, an award of exemplary damages shares the central purposes of punishment, including moral retribution (just desert), deterrence, denunciation and ‘assuag[ing] any urge for revenge’.
[111] The kinds of case in which exemplary damages might be awarded are so varied that it has been doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. The phrase adopted to describe ‘at least the greater part of the relevant field’ is ‘conscious wrongdoing in contumelious disregard of another’s rights’. The necessary conduct has been described as disclosing ‘fraud, malice, violence, cruelty, insolence or the like’. In the context of an award of exemplary damages, the concept of ‘malice’ may mean no more than proof of a state of mind involving some personal animus against the plaintiff. A ‘contumelious disregard’ of a plaintiff’s rights may arise even if the disregard of the plaintiff’s rights is unintentional or occurs by conduct believed to be lawful, the meaning of contumelious conduct being conduct that is apt to humiliate and insult the plaintiff. While a finding of ‘conscious wrongdoing in contumelious disregard of another’s rights’ may be sufficient it is not necessary for an award of exemplary damages.
[112] The core, or ‘strict’ purpose of punishment, moral retribution or just desert, feature most prominently in instances where ‘the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government’. In that calling to account, exemplary damages serve ‘a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law’. This reflects the fact that ‘the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service’.”
(Footnotes omitted.)
“… What I’m submitting is that his conduct on this day, as a whole, can be taken into account in explaining the way he dealt with this situation as he did. He’s a human doing a very difficult job that had a lapse of judgment. That’s what I’m submitting, your Honour. I’m not intending to submit anything more critical than that. And expediency means that when they finally located her, he thought to himself, ‘This is ending now’, and took the most convenient step to bring it to an end immediately.”
“HIS HONOUR: That seems to be an elevation of something. I think you accepted earlier that so far as the capsicum thing, that was a guidance manual. Now you seem to be elevating it to some sort of supervisory – I forget the expression that you used a moment ago – operating procedures.
GREY: Perhaps I should put it this way, your Honour. If your Honour finds that there was an excessive use of force, then those powers that the police were imbued with have, in effect, been abused.
HIS HONOUR: Right, but it would be relevant, wouldn’t it, that it might depend upon whether I find that the s 22 threshold was met? There’s quite a significant difference if it wasn’t, because, at least in the case of, for example, the trespass to land and perhaps the other torts, if there was a basis under s 22, then, effectively, the finding, wouldn’t the finding be that what police were trying to do were well intentioned; the problem arose in the manner in which they sought to execute a legal purpose?
GREY: I accept that. And it’s also of relevance in exemplary damages that Senior Constable Cashmere was a supervisor and part of his role involved supervising and providing guidance to and effectively setting an example for other officers. …”
Consistently with these submissions, at the hearing of the appeal junior counsel for the appellant agreed that the claim for exemplary damages at first instance was not put on the basis that the State was liable for an absence of police training or guidelines. Rather, the case was put on the basis of LSC Cashmere’s conduct in deviating, counsel submitted, from the guidelines. In this respect the claim for exemplary damages was one for which the State was vicariously liable in the sense explained in Austral at [131], as opposed to the appellant making a claim of direct liability on the part of the State as was made in Austral and was the subject of ground 3 of the appeal in the High Court (see eg Austral at [116] and ground 3 at [134]-[136]).
In declining to award exemplary damages in the present case, the primary judge noted that it was not put to LSC Cashmere that he did not honestly believe it was necessary for him to deploy the spray: at [463]. His Honour considered that the fact that this was not put to LSC Cashmere was appropriate, “particularly having regard to the paucity of other options he confronted; none of which were compelling given the separate risks that they entailed”. His Honour described the applicable guidelines as “just that: guidelines”, finding that they were not rules and “unsurprisingly, the proper application of them was highly contentious”: at [463]. His Honour had “no doubt LSC Cashmere was trying to exercise his powers conscientiously”, found no pre-meditation on his part, and expressly rejected the appellant’s submission that he acted out of expediency: at [463]-[464]. His Honour concluded at [465]:
“In the counterfactual that I am dealing with, which is predicated on a finding that it was unreasonable for him to think in this way, what follows is that he [scil. what] was left was, at most, an error in professional judgement about the force he was permitted to exercise pursuant to a lawful function. I would not have made any allowance for exemplary damages.”
The appellant did not challenge the above findings. However, she submitted that in dismissing the claim for exemplary damages the primary judge did not bring to account the earlier findings made about the circumstances in which LSC Cashmere deployed the capsicum spray. The particular findings on which the appellant relied in this context were:
When deciding what force to deploy, LSC Cashmere did not take any steps to “de-escalate” the situation and made no attempt to communicate with the appellant, when the notionally reasonable police officer would have considered that she required patient and sensitive handling: at [302].
Once he had decided on his course of action, LSC Cashmere issued no warning to the appellant that unless she complied with his directions he was prepared to administer the capsicum spray against her. Again, a reasonable arresting officer in his position, in his Honour’s opinion, would or should have appreciated that to administer the spray without warning to an apparently mentally disturbed person might be the sort of thing that would set off the sense of affront and indignation that has fuelled the appellant since: at [303].
Evaluated against the approach earmarked for mentally disturbed persons, LSC Cashmere resorted to force prematurely and his approach was confrontational, using the spray as a first resort, not a last resort: at [305].
It is the case, as the appellant submitted, that in the context of exemplary damages heavy-handed, over-reaching conduct can be relevantly contumelious even when there is no subjective advertence to wrongdoing, and even when the disregard of the plaintiff’s rights is unintentional or occurs by conduct believed to be lawful: Austral at [111]-[112]; see also New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [38]-[40]. However, the appellant also acknowledged that it was necessary to weigh the objective matters on which she relied against the subjective factors that his Honour took into account. The difficulty with the submission was that the matters that the appellant sought to characterise as “subjective” were not all properly so described. As I have summarised above, the primary judge found there were a paucity of other options, none of which were compelling given the separate risks that they entailed; and in taking the steps he did, LSC Cashmere did not act expediently. Accepting that he made an error about the force he was permitted to exercise, his Honour did not find that the steps that he took involved a failure on LSC Cashmere’s part to comply with applicable guidelines, noting that their application was highly contentious. In light of those and other findings that his Honour made, to which I have referred above and to which there was no challenge, the primary judge’s decision not to award exemplary damages was correct.
The actions of LSC Cashmere are deserving of disapproval. However, “[t]he fact that an award of exemplary damages constitutes an expression of the Court’s disapproval of the conduct does not mean that the Court’s disapproval is a sufficient reason to make an award”: (2007) 70 NSWLR 125; [2007] NSWCA 303 at [117] (Basten JA, Ipp JA agreeing at [25]). I would dismiss ground 5.
The primary judge assessed damages on the contingent basis that s 3B(1)(a) of the Civil Liability Act applied. In light of my conclusion on ground 1 of the appeal, and my agreement with Adamson JA on grounds 2 and 4 and 6, the amount that his Honour would have awarded on that basis, being $27,000, should be substituted for the damages that the primary judge awarded. I agree with Adamson JA’s observations as to costs at [265]. Accordingly, I propose the following orders:
Allow the appeal in part.
Dismiss the cross-appeal on the basis of the appellant’s notice of contention.
Set aside the judgment of the District Court in the sum of $24,000 and, in lieu thereof, enter judgment in favour of the appellant in the sum of $27,000.
Order the respondent/cross-appellant to pay the appellant’s costs of the appeal and cross-appeal.
ADAMSON JA: On 30 September 2021, Leading Senior Constable (LSC) Cashmere sprayed Linda Music (the appellant) with capsicum spray (the subject incident). She sued the State of New South Wales (the State), which is vicariously liable for the acts of LSC Cashmere, in the District Court (the Court below). Abadee DCJ (the primary judge) found that the tort of battery had been made out for which the State was liable. His Honour assessed damages in the sum of $24,000 on the basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (the Act), which excludes intentional torts from the damages provisions of the Act, did not apply. However, his Honour also assessed damages on a contingent basis (that s 3B(1)(a) did apply) at $27,000.
All references to legislation in these reasons are, unless otherwise stated, references to the Act. References to paragraphs are, unless otherwise stated, references to paragraphs in the primary judge’s reasons: Music v State of New South Wales [2025] NSWDC 487.
The subject incident occurred in the following circumstances, further detail of which will be given later in these reasons. On 30 September 2021, members of the NSW Police Force conducted a welfare check on the appellant, who was then aged 48. They did not, at that time, or at any other relevant time, suspect her of having committed any criminal offence ([14]). The appellant had no criminal record and engaged neither in any act of violence nor aggression on 30 September 2021 ([255]). It was, however, common ground, that at that time the appellant had pre-existing Post-Traumatic Stress Disorder (PTSD) ([410]).
The use of force by police to enter the appellant’s home (referred to in more detail below) caused the appellant to go into a “flight” response and jump over her back fence and hide ([21]). After searching for the appellant for about 40 minutes, the police found her in a neighbour’s shed ([30]). When she came out of the shed into the backyard, she held her hands out in a neutral stance. She neither approached, spat on, punched, nor verbally threatened any officer ([255]). The appellant’s conduct throughout was consistent with someone who was fearful and not threatening ([255]).
Within about three seconds of LSC Cashmere coming into the backyard and before he had interacted with the appellant, he sprayed her face twice with oleoresin capsicum spray (also referred to as OC spray) ([137]). The primary judge found that, in doing so, LSC Cashmere resorted to force prematurely and adopted a confrontational approach ([305]).
The appellant’s pre-existing PTSD principally arose from long-term domestic violence inflicted by Mr Dominic Settineri, her former partner ([393]-[394]). The appellant’s evidence was that prior to 30 September 2021, she had not experienced any mental health episode since 2018 ([351]). The primary judge considered that this evidence was supported by the circumstance that the appellant had not seen Ms Brown, her counsellor, for two and a half years prior to 30 September 2021 ([432]). Following the subject incident, which the appellant described as the worst event of her life, the appellant suffered nightmares, flashbacks and ongoing trauma responses particularly in connection with interactions with the police ([365]-[366] and [385]). The primary judge accepted the opinion of Dr Allnutt, a Senior Consultant Forensic Psychiatrist, that the force which LSC Cashmere applied to the appellant on 30 September 2021 made a substantial and material contribution to aggravating her pre-existing trauma and stressor-related disorder and that the incident made her PTSD chronic ([394] and [435]).
As referred to above, the primary judge held that the appellant needed to establish, in order to obtain the benefit of the exemption in s 3B(1)(a) of the Act, that LSC Cashmere actually and subjectively intended the exacerbation of her PTSD and that it was not sufficient to establish that he intended injury ([342]). Because the primary judge found that LSC Cashmere did not hold such a specific intention ([343]-[345]), his Honour found that s 3B(1)(a) was not engaged ([346]) and that damages for the battery ought be assessed under Part 2 of the Act.
On appeal, the appellant challenged the finding that s 3B(1)(a) did not apply (ground 1) and also the primary judge’s assessment of damages (grounds 2, 4, 5 and 6).
The grounds of appeal are:
1 The Primary Judge erred in finding that, in order to engage s3B(1)(a) of [the Act], the plaintiff must establish that the person committing the intentional act in question did so with intent to cause her an aggravation of PTSD. In doing so the Primary Judge misconstrued the words “intent to cause injury” in the legislation: J[341]-[342].
2 In assessing general damages, on a contingent basis, the Primary Judge erred by failing to consider the need for, or to apply, proportionality consistency between that finding and the Primary Judge’s own assessment of the severity of the noneconomic loss under s 16 of [the Act]: J[446]-[447].
3 [Not pressed.]
4 In assessing general damages, on a contingent basis, the Primary Judge erred by awarding damages which were manifestly inadequate: J[447].
5 In assessing damages, on a contingent basis, the Primary Judge erred by declining to award exemplary damages: J[462]-[469].
6 In assessing economic loss damages, the Primary Judge erred in awarding damages which were manifestly inadequate: J[480].
Ground 1 turns on the construction of s 3B(1)(a) which provides that “[t]he provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) … of a person in respect of an intentional act that is done by the person with intent to cause injury …”.
The question raised by ground 1 is whether the intentional act done by the person must be done with intent to cause the particular injury actually sustained by the claimant, as found by the primary judge, or whether it is sufficient that the intent was to cause injury, whether it corresponds with the actual injury sustained, as contended on behalf of the appellant.
It was common ground that, subject to the cross-appeal, if the appellant’s construction is correct, her damages ought be assessed by reference to the common law and are not constrained by the statutory limitations in Part 2 of the Act, which would apply if the primary judge’s construction were correct.
The remaining grounds of appeal, 2, 4, 5 and 6, concern whether the primary judge’s contingent assessment of damages was inadequate having regard to his Honour’s findings of fact as to the effect of the battery on the appellant.
1 The Primary Judge erred in finding that, as a matter of causation, the Appellant/Cross-Respondent was only required to demonstrate that LSC Cashmere’s conduct in deploying the capsicum spray against her materially contributed to her injury (J[421]). In doing so, the Primary Judge failed to address whether LSC Cashmere had an actual or presumed intention to cause the harm suffered by the Appellant/Cross-Respondent. The Primary Judge ought to have found that LSC Cashmere:
a. Did not intend the harm; and
b. The harm was not the natural and probable consequence of the tortious conduct.
2 The Primary Judge erred in finding that LSC Cashmere’s conduct in deploying the capsicum spray against the Appellant/Cross-Respondent materially contributed to her injury (J[435]).
The Cross-Respondent contends that the decision of the Judge below as to causation should be affirmed on grounds other than those relied on by the Judge.
Grounds
1 The Cross-Respondent says that PJ [343] - the words “I would not have been convinced under any less demanding legal requirement that exacerbation of a preexisting mental illness was either inevitable, or the natural or probable, consequence as a result of the infliction of the spray or that LSC Cashmere was reckless to that possibility; even if it might arguably have been foreseeable” – was not a finding by the primary judge for the purposes of common law causation for psychiatric injury suffered from battery, or causation as it is described at [291] of State of New South Wales v Spedding [2023] NSWCA 180.
2 If (contrary to the above) those words in PJ [343] are held by this Court to be a finding by the primary judge for the purposes of common law causation for psychiatric injury suffered from battery, then the finding was made in error.
3 The Cross-Respondent contends that, on the basis of the primary judge’s other factual findings including those contained in PJ [56], [84], [90], [100], [104], [106], [112], [168], [238], [245] and [421]-[435], the primary judge should have found that psychiatric injury was a natural and probable consequence of the deployment of pepper spray on the plaintiff in the circumstances of this case.
(Emphasis in original.)
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—
(ia) Part 1B (Child abuse—liability of organisations), and
(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),
(b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989—the whole Act except sections 15A and 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),
(c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products—the whole Act except section 15B and section 18(1) (in its application to damages for any loss of the kind referred to in section 18(1)(c)),
(d) civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents,
(e) civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988)—the whole Act except the provisions that subsection (2) provides apply to motor accidents,
(e1) civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents,
(f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies—the whole Act (other than Part 1B),
(g) civil liability for compensation under the Workers Compensation Act 1987, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, the Workers’ Compensation (Dust Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978—the whole Act,
(h) civil liability for financial assistance for economic loss under the Victims Support Act 2013—the whole Act.
9 Power to enter in emergencies
(1) A police officer may enter premises if the police officer believes on reasonable grounds that—
(a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or
(b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person, or
…
(2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.
Section 230 of LEPRA provides that it is lawful for a police officer when exercising a function under LEPRA or any other Act or law “to use such force as is reasonably necessary to exercise the function”. Section 231 is in similar terms and applies to arrest. A lawful use of force under s 230 of LEPRA is a complete defence to an action for battery ([216]).
Section 22 of the Mental Health Act 2007 (NSW) provides:
22 Detention after apprehension by police
(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that—
(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.
Transport of persons to and from mental health facilities and other health facilities
…
(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may—
(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the circumstances.
…
The task of construing s 3B(1)(a) requires a consideration of text, context and purpose: Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362 at [4]-[6]. Authoritative decisions must also be considered.
Section 3B(1)(a) requires that the relevant actor have an “intent to cause injury”. It does not, in terms, require that the actor intend to cause a specific injury or the actual injury for which a plaintiff brings proceedings.
The context of the provision is also significant. Section 3B exempts certain torts from the operation of other provisions of the Act. There are textual differences between the subparagraphs in s 3B(1), including that several subparagraphs used the words “civil liability relating to …”, whereas s 3B(1)(a) is confined to “civil liability of a person in respect of an intentional act …”. Section 3B(1)(a) does not operate on the particular cause of action but on the particular act and the intent of the person doing the act: Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [33] (Leeming JA, referring to Basten JA in Dean v Phung [2012] NSWCA 223 at [10]).
The focus of the exemption in s 3B(1)(a) is on the mind of the tortfeasor rather than the nature of the specific harm actually suffered by the injured party. Thus, in State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (Ibbett CA), this Court held that the definition of “injury” in s 11 of the Act did not apply to s 3B(1)(a). The Court considered that there was no reason to confine the word “injury” in s 3B(1)(a) to actual physical harm (as encompassed by s 11), which would have the effect of excluding apprehension of physical violence as amounting to “injury” within s 3B(1)(a). This Court found that the word “injury” ought be given its natural and ordinary meaning, which would encompass harm occasioned by the apprehension of physical violence.
The purpose of the section also bears on its interpretation. Its evident purpose is to exclude from the limitations elsewhere in the Act, tortious conduct which is intentional or deliberate. Thus, an “instinctive reaction” which results in injury (instanced in Ibbett CA at [31], [32], [129] and [137]) is insufficient to amount to the requisite intention under s 3B(1)(a) because the actual intention is necessarily lacking when a reaction is “instinctive” rather than deliberate. So too is negligent infliction of injury because actual subjective intention is required: Ibbett CA (see below).
However, the principal question of liability raised by ground 1 of this appeal cannot readily be answered by reference to the words of the statute or to its purpose. The principal question is: where the tortfeasor intends to cause an injury (the infliction of physical pain) by doing an act (in this case, the use of capsicum spray), does the exemption in s 3B(1)(a) extend to the defendant’s liability for injuries caused by the doing of the act. In particular does the exemption apply only to the physical pain sustained by the capsicum spray, which was actually intended, or does it also apply to the psychiatric injury - aggravation of a pre-existing PTSD, which was not shown to have been actually intended.
In Ibbett CA, the son of the plaintiff (Mrs Ibbett) was being pursued by police officers at 2am as they suspected him of having committed a traffic offence. Mrs Ibbett’s son drove into her garage and began to close the door. One of the officers dived under the closing door and pointed his firearm in the direction of the son and sought to arrest him. Mrs Ibbett entered the garage by a side door and told the police officer to leave. The officer pointed the firearm at her and demanded that the garage door be opened for a fellow officer before again pointing it at Mrs Ibbett’s son. The police officers arrested the son and conducted a strip search on him in her vicinity. The judge at first instance found that the “injury” was the pain and distress caused to Mrs Ibbett as a result of apprehension of physical violence and it was accepted that the officer who pointed the firearm at her intended to cause her such an injury.
Mrs Ibbett succeeded on liability at trial and was awarded damages, including exemplary damages, for unlawful trespass and assault constituted by the officer pointing his firearm at her. The State’s appeal was dismissed. This Court relevantly held that exemplary damages were available as s 3B(1)(a) applied since the proceedings were in respect of an intentional act done with intent to cause injury (Spigelman CJ, Ipp JA agreeing) as the word “injury” was wide enough to encompass anxiety and distress occasioned as a result of apprehension of physical violence.
For present purposes it is significant that in Ibbett CA, there was relevantly one injury (the pain and distress caused by the apprehension of physical violence), which corresponded with the injury which was found to have been intended by the tortfeasor for whose conduct the State was vicariously liable.
In Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294 (Dickson), a rugby league player (Mr Dickson) suffered personal injury in a match where another player (the second defendant) lifted him off the ground before driving him forcefully into the ground. Mr Dickson claimed damages. He argued that because s 3B(1)(a) applied, the defence under s 5L of the Act (the defence of materialisation of an obvious risk of a dangerous recreational activity) was not available to the defendant. It was common ground if the claim did not fall within s 3B(1)(a), it would fail by reason of s 5L.
The judge at first instance held that s 3B(1)(a) was not engaged because the tackle was not effected with an intention to cause the injury which ensued. The first instance judge’s finding was based on the acceptance of evidence of the second defendant, which was extracted in Dickson at [20]:
… the Second Defendant consistently denied an intention to injure the plaintiff. He described his tackling style as designed to disturb the balance of the ball carrier. He said that in the incident in question, he did not intend to lift both legs; that he lost control at the point where the plaintiff had both feet off the ground, but was perturbed that the plaintiff was still moving towards his team’s in- goal area; and that it was ordinarily part of his objective to bring the ball carrier to the ground, and placed in a certain position for the re-start. None of this evidence was inherently implausible. I accept the second defendant’s evidence about his intention in these respects.
Accordingly, the appeal was dismissed and the claim failed.
This Court (Basten JA, White JA and Simpson AJA) found that the words “intent to cause injury” in s 3B(1)(a) of the Act require an actual, subjective intention and neither recklessness nor foresight of an inevitable consequence of conduct is sufficient: [4] and [8] (Basten JA); [19] (White JA agreeing); and [186] (Simpson AJA agreeing).
Basten JA addressed the identification of the injury which must be subjectively intended and said at [10]:
The second element of the statutory phrase concerns the meaning of “injury”. The word appears in s 3B(1)(a) as an abstract concept, but it is clearly intended to refer, if not to the injury (or death) which is the subject matter of the claim, at least to an injury of that character. (It might not matter that the defendant intended to strike or shoot A and cause injury to A, but hit and injured B: such a case would likely engage s 3B(1)(a) although there was no intent to injure B.) The section refers to the injury which has resulted in compensable loss.
It is not possible to read s 3B(1)(a) as engaged where the intent is to cause an injury which is not the subject of the claim. The injury which was the subject of the present claim resulted from the fact that the tackler fell onto the appellant’s head. There was no evidence that he subjectively held an intention to do that, or to cause the injuries which resulted from that act.
It follows that the judge was correct to conclude that s 3B(1)(a) was not engaged and that the defence under s 5L was made out. For these reasons, in addition to those given by Simpson AJA, the appeal must be dismissed.
The acceptance by this court of the primary judge’s finding of fact as to the absence on the part of Mr Fletcher of an intention to injure the appellant means that it is unnecessary to express any view as to any possible implied limitations on the scope of the words an intentional act that is done by the person with intent to cause injury or death in s 3B(1)(a).
The precise scope of “intent to cause injury” in s 3B(1)(a) cannot here be determined. …
It was common ground in the present case that LSC Cashmere’s actual and subjective intention was to cause physical harm to the appellant when he sprayed her with capsicum spray. However, it was also accepted that the appellant had not established that LSC Cashmere had intended to cause her psychiatric harm (which would incorporate the aggravation of her PTSD). Thus, the question for determination in ground 1 is whether his intention to cause physical injury was enough to exempt the whole claim from Part 2 under s 3B(1)(a) or whether only her claim for damages for physical injury was exempted from Part 2 of the Act, leaving damages to be assessed (if liability were otherwise established) under Part 2. The question of causation also needs to be considered but is the subject of the cross-appeal and the notice of contention.
If the injuries sustained by a plaintiff which were the result of an intentional act coupled with an intention to cause the injury sustained had to be dealt with differently from those which were the result of the same intentional act but which were not intended, the law of damages would become unwieldy if not unworkable. The thresholds in Part 2 of the Act would not apply to the intended injuries but would apply to the unintended injuries, with the consequence that some thresholds (such as the threshold of 15% for non-economic loss) might not be reached although if all injuries were considered together they would be. Further, there is no particular warrant in the wording of s 3B(1)(a) to require each of the injuries sustained by a plaintiff to have been intended as long as the tortfeasor of the intentional act intended to cause injury of some sort, including that which was actually sustained. Nothing in the extrinsic materials assists in this process of construction.
While the dicta of Basten JA in Dickson would appear to support the primary judge’s construction, it is plain from the judgment in Dickson that it was unnecessary to decide the precise issue that arises in the present case. Nor was the issue fully argued. Further, the other two judges which comprised the Court in Dickson did not endorse his Honour’s remarks. It was common ground in this Court that the question remained an open question to be decided by this Court in the present case.
On balance and having regard to the textual and contextual matters referred to above, as well as the adverse consequences for the assessment of damages which would flow from any other interpretation, I consider that the plaintiff need only prove that an injury suffered was intended by the tortfeasor of the intentional act, to fall within the exemption in s 3B(1)(a).
Accordingly, ground 1 has been made out.
In the late 1990s, the appellant was in a de facto relationship with Mr Settineri, in the course of which their son, Brandon, was born ([13]). The appellant and Mr Settineri separated in the early 2000s but maintained contact, albeit tempestuous, with each other ([13]). Mr Settineri’s recollection was that they had separated when Brandon was about 3 or 4 years old. Brandon was 26 years old at the time of the hearing in 2025 ([49]). For much of the period since their separation, the appellant has hidden from Mr Settineri ([51]).
The appellant’s relationship with Mr Settineri was “punctuated with episodes of domestic violence, generally precipitated by Mr Settineri being under the influence of ice” ([50]). On 29 March 1998, the appellant was admitted to Westmead Hospital with injuries consistent with having been bitten and hit around the head after Mr Settineri allegedly assaulted her ([372]). In 2019 Mr Settineri was diagnosed with schizophrenia. He had also served time in gaol. In 2017 the appellant’s residence in Moore Park was broken into and a fire lit, which damaged some of her possessions and destroyed others ([50]). In 2018, when the appellant was living in Blacktown, she discovered that Mr Settineri and Brandon had entered her home. Police removed her from her property and took her to Blacktown Hospital, which led to her becoming fearful, if not mistrusting, of the police ([50]).
The appellant also had a troubled relationship with Brandon, including because of his use of the drug ice. When affected by drugs, he would take her car without her permission. He was repeatedly violent towards her and also spent periods in custody. Brandon also enabled his father to contact the appellant, against her wishes ([53]).
The criminal conduct of Mr Settineri and Brandon led to the appellant coming into regular contact with police and taking a “jaundiced” view of police officers, particularly male police officers ([55]).
In November 2020, the appellant rented a two-storey townhouse in Blacktown for a year with provision for a roll-over ([13]).
From at least April 2016 the appellant began consulting Lisa Brown, counsellor, regarding stress arising from her relationship with Brandon ([54]). Between April 2016 and December 2017, she obtained treatment on numerous occasions to help her cope with stress, anxiety and trauma ([54]). A note dated 9 August 2016 and signed by Ms Brown recorded that the appellant described her future as “hopeless” ([374]).
On 26 June 2017, Ms Brown wrote to the Department of Housing in support of the appellant’s application for housing. Ms Brown referred to the appellant’s diagnosis of PTSD and her suffering from suicidal ideations and associated financial stress ([373]). She also referred in the letter to the appellant’s long history of trauma, the fact that the appellant had had to leave her home 12 times because of her partner’s violence and the appellant’s regular experience of flashbacks, panic attacks and nightmares ([373]).
The following are the primary judge’s summaries of entries recorded on the NSW Police Computerised Operational Policing System (COPS) in respect of the appellant ([56] and [58]):
30 May 2018 (Exhibit 1): it appeared that Ms Music had been fired from work. She returned home and started to drink. A few hours later she walked to the Blacktown Inn, consumed more drinks and played the poker machine. Co-incidentally, Brandon had agreed to meet up with friends, but he saw Ms Music stumbling in the car park. He heard her say “I’m going to jump in front of a car and kill myself”. She approached the main road before Brandon grabbed her. Mr Settineri arrived not long thereafter to help Ms Music home and a short time later police arrived. Brandon was concerned that Ms Music had overdosed on her medication for high blood pressure. Whilst police was present, Ms Music was heard to say “After the Ambos check me out I will kill myself and you will never see me again”. Ms Music was conveyed by ambulance to the Blacktown Hospital with police assistance. A file note produced by NSW Ambulance of 30 May 2018 indicated Ms Music’s admission to paramedics of a suicide attempt.
10 July 2018 (Exhibit 4): Ms Music contacted 000. Mr Settineri had had an argument with Brandon about the latter wanting to ride a bike on a public road whilst intoxicated. Mr Settineri tried to prevent him from removing the bike from the house. Brandon stabbed Mr Settineri on the latter’s hand with a knife and attempted to stab him on the upper part of his body. Ms Music also told police that she had received a report about the windscreen to her car was smashed. Whilst acknowledging her concern about her son’s drug use and irrational behaviour, Ms Music refused to provide a police statement.
1 September 2018 (Exhibit 4): this was an occasion when Ms Music called 000 before terminating the call seconds later. Police attended her home and heard voices inside. Police rang Ms Music’s phone multiple times, but she did not answer. Over a month later, on 7 October 2018, Ms Music rang police and told them that she was fine and had not required police assistance and explained that she had only had a verbal argument with Brandon. In her evidence, Ms Music explained that Brandon had taken Ms Music’s car. Sensing that Ms Music might report him to police, Brandon called his mother a dog. Ms Music did not provide a police statement.
11 November 2018 (Exhibit 5): a niece of Ms Music called police (apparently being put up to this by Ms Music). Mr Settineri had reportedly been smashing furniture and had damaged a bathroom window. But when police arrived, no one was there. Ms Music thereafter arrived but walked past police without saying anything. Police attempted to contact her several times. Later she walked away from police to get into her car. Police were left uncertain as to what had occurred. The next day, 12 November, Ms Music contacted police and was described in the COPS entry as being abusive towards them. She was invited to provide a police statement but refused. The entry ended with the notation that since Ms Music was considered unfavourable and refused to assist police, no action could be taken. In Court, Ms Music explained that she was scared of the consequences of Mr Settineri finding out.
19-20 January 2019 (Exhibit 2): On 19 January 2019, there was a domestic incident involving Ms Music and Brandon …. Brandon was effectively placed under house arrest and it is inferred that the Court’s order was that he stay at his mother’s place. Ms Music considered that she was directed to leave her own home. This, as it transpired, left a bitter taste in Ms Music, who resented having to stay somewhere else overnight, as she did with her own father. Ms Music returned to her home on 20 January to discover some of her possessions had been stolen. She called police. She explained that she was intending to complain how she had been kept out of her own home. But materially, the COPS entry records that she told police that she was “going to kill myself”. On this occasion … Ms Music spoke to police from behind the closed door. She was reported to have said “other people kill themselves, so I am going to kill myself”. A short time later, … she jumped over a neighbour’s back fence (without any indication to police) – police only found out about this from a neighbour (who was anonymous) who said that Ms Music was hiding. An ambulance later arrived. Ms Music told the ambulance that she did not want to kill herself but only said what she said “in the heat of the moment”.
On 30 September 2021, the appellant, who had neither been drinking nor taking drugs ([60]), was at her home. Mr Settineri was also present. They had learned that Brandon had caused substantial damage to the appellant’s car when driving under the influence of ice ([13]). The appellant knew that Brandon was affected by ice and had taken the keys to her car. She believed that he was going to harm himself while driving her car ([60]).
At 4pm, while the appellant was upstairs and Mr Settineri was downstairs looking through paperwork (with a view to helping Brandon), the appellant received a phone call from “Ian” from Allianz Insurance ([13]). Ian informed her that Brandon had damaged one or more vehicles in the course of a police pursuit ([60]). He also informed her that as her car was not insured for property damage, she may have to pay $150,000 ([61]). The appellant accepted that she had said to Ian, “Oh my God, what else is going to happen? I might as well just kill myself” ([61]). In cross-examination she explained that her response was a reflection of how much she had lost in life and that the statement was “just a matter of speech” ([61]). However, Ian told her that he was going to call the police. She asked him not to call the police since she was not going to kill herself ([61]).
As a consequence of this communication, Allianz notified police of what the appellant had said ([13]-[14]). Within five minutes, the appellant called Ian again and asked him not to call police, to which he responded that he had already called them ([62]). Either in this or the earlier phone call, Ian told her that he had called police because he believed that he owed a duty of care to her to do so ([63]).
The appellant told Mr Settineri of her conversation with Ian. Mr Settineri’s impression was that “she seemed all right” and that although she was “distraught” about Brandon, she was not suicidal ([66]).
As at September 2021, Constables Casey and Alo were assigned to the “domestics” unit at Blacktown Police Station. They had been on their way to respond to a domestic violence incident when they received a call to go to the appellant’s home ([91]). They arrived at the appellant’s home at 4:25pm in response to being notified that police had received a call from an insurance company that “a woman wanted to kill herself” ([74]). On the way, they had done some checks through COPS which revealed that the appellant had experienced mental health issues and that her son had damaged property in a police pursuit ([77]). Constable Alo also spoke on the phone to Ian from Allianz to try to ascertain the genuineness of the appellant’s threat to kill herself ([90]).
Constables Casey and Alo knocked at the front door to the appellant’s residence and announced that they were police officers and had come to speak to the appellant ([13]-[14]). The appellant refused to open the door, despite the police repeating their request that she do so ([15]-[16]). Constable Casey agreed that the reason for trying to talk to the appellant was to attempt to determine whether an ambulance was necessary ([76]). Mr Settineri spoke to the officers from behind the door.
[LSC Cashmere] recalled looking up Ms Music’s prior interactions for mental health, including an incident two years before, when (as he recalled it) she had made a threat to kill herself. He said that he was also aware (before he attended this job, as part of daily briefings) of Ms Music’s son’s involvement in a number of police pursuits a couple of days before and his being arrested.
At about 4:50pm, at least four additional police officers, including LSC Cashmere, the supervising and, therefore commanding police officer ([81], [83]), arrived at the property ([17]). At some stage, the appellant walked out onto a first floor balcony above the garage at the front of the property and told the police to “fuck off” and “leave [her] alone”. CCTV footage showing the appellant appearing to remonstrate with the officers below her was admitted into evidence ([17]) but, by agreement, none of the exhibits tendered in the Court below was before this Court.
At some stage, Constable Casey heard a bang on the other side of the front door. He inferred from the sound that a piece of furniture was being used to barricade the door ([79]). This, together with the fact that he could no longer hear the appellant’s voice made him concerned that the appellant, whom he regarded as irrational and unpredictable, would harm herself ([79]).
When LSC Cashmere arrived, he spoke with Constables Casey and Alo to discuss options ([81] and [94]). They agreed that they would try to talk to her but if this failed they could detain her pursuant to s 22 of the Mental Health Act or s 9 of LEPRA. Constable Casey gave evidence that he was concerned about breach of the peace because of the appellant’s irrational behaviour ([81]). In re-examination he said that he was concerned that the appellant was about to harm herself and as to what would happen if police walked away ([82]). He was also concerned about risk to life and property and was conscious of the duty of care which police owed to all persons ([82]). Constable Casey ultimately agreed that he and Constable Alo were guided by LSC Cashmere. Initially, Constable Casey’s evidence was that they did not regard LSC Cashmere as issuing an instruction although he was the commanding officer ([83]). However, he ultimately accepted that LSC Cashmere gave an instruction to him to detain the appellant under s 22 of the Mental Health Act ([82]).
The primary judge said, with respect to the discussion between Constables Casey, Alo and LSC Cashmere about whether there were grounds to schedule the appellant under s 22 of the Mental Health Act, as follows at [84]:
Constable Casey’s recollections of what was said in what I will refer to as the short conference with LSC Cashmere, under cross-examination, fluctuated. His first answer in response to the question of his recall of what LSC Cashmere had asked of him and Constable Alo was LSC Cashmere asking: “Do you believe (there are) sufficient grounds to schedule (Ms Music) under the Mental Health Act?” He recalled that he and Constable Alo individually both said “yes”. This was why he thought that the decision to detain Ms Music was collective. But later he accepted that LSC Cashmere had (more positively) asserted that “She’s to be detained under section 22” and “We have a basis to force entry if she doesn’t come to the door”. However, Constable Casey returned to something like his original formulation: LSC Cashmere asked him and Constable Alo a question: “Do we have sufficient grounds on the Mental Health Act” and he (and Constable Alo) expressed their individual views. Then ultimately, he accepted that LSC Cashmere gave an “instruction” to him to detain Ms Music under s 22.
It was LSC Cashmere who suggested that the police ought force entry into the house ([87]). Constable Casey’s understanding was that the police would be justified in forcing entry under s 22 of the Mental Health Act but not under LEPRA ([88]).
The primary judge referred at [100] to LSC Cashmere’s evidence about the circumstances in which police would take the person to be dealt with at a mental health facility under s 22 of the Mental Health Act, as follows:
As at 30 September 2021, LSC Cashmere had been in the Police Force for 13 years. During the course of his evidence, he said that it was not uncommon for police to get jobs featuring a ‘comment’ someone has made which causes concern; with police sent out. He said that often police would try to sit down with the person making the comment and police would then decided to dispatch the appropriate resources, such as mental health clinicians who accompanied police in the field, or an ambulance or some other sort of community team. He said it was not uncommon, however, for people to present in the fashion which Ms Music did; where police had such a concern for the person making the comment as to consider it inappropriate to simply leave them; but rather, the need was felt to take the person to a facility to be dealt with someone more qualified than police officers, by virtue of s 22 of the MH Act.
[LSC Cashmere] had a conversation with them. They explained the job, and the information that they had received to that point. This included trying to speak with Ms Music though a window after they tried to get her to come to the door; being told by Ms Music to ‘fuck off’; and also that there was also a male occupant in the unit. She was reported as having appeared at a window, but they had not seen her since then. They tried to explain that they wanted to take her to hospital and that it was not a matter of her being in trouble. LSC Cashmere accepted that he told Constables Casey and Alo that he was satisfied there was a basis to exercise the s 22 power and told them that she would need to come to the door or (if she did not comply) police would need to force entry into the home.
[Constable Casey]: “Dominic, hey mate, how are you doing?”
[Mr Settineri]: “I’m doing alright.”
[Constable Casey]: “Yeah good mate, my supervisor’s here and we’re just having a chat with him”
[Mr Settineri]: “She calmed down… She’s just upset”
[Constable Casey]: “I know mate, I know. The situation right now is that we are seriously concerned that she might do it. I know that you [Mr Settineri] reassured me mate but on our basis, she said what she said to the person on the telephone line, and we’re really concerned about it OK? So, at this point she really needs to come to the door”
[Mr Settineri]: “She’s comfortable and she’s alright”
[Constable Casey]: “We probably might need to take her to the hospital mate”
[Mr Settineri]: “Everything’s alright”
[The appellant]: “Yeah everything’s alright, can you please go away?”
[Constable Casey]: “Just if can reassure, we will be forcing entry into the door, okay?”
[Mr Settineri]: “Listen, I’m not going anywhere, I’ll make sure everything’s ok. If anything happens, I’ll –”
[Constable Casey]: “yeah Dominic I don’t think that’s an option mate she needs to come to the door or we’re going to have to break it in.”
[Mr Settineri]: “Come to the door?”
[Constable Casey]: “yeah, come to the door, open the door and come out with us or we’re going to have to break the door.”
[Dominic]: “She’s doing alright, you don’t need to do that”
[Constable Casey]: “I know, I know but we’re satisfied that under section 22 of the Mental Health Act, she needs to come. Dominic, can you open the door mate.”
[Constable Casey]: “I know it’s frustrating. There’s just two options. If you can open the door, we can have a chat with her or we’re going to break the door.”
[The appellant]: “Back off”
[Constable Casey]: “Can you open the door for us?”
[The appellant]: (to Dominic) “No do not open the door”
[The appellant]: (to Police) “Get the fuck away from my house”
[LSC Cashmere]: “Alright my name is ___ from Blacktown, I’m the supervisor on today. I’m telling my police if this door doesn’t open now, they’re going to force entry, okay? Do you want a broken door or not?”
LSC Cashmere’s evidence was that he was listening to Constable Casey “speaking [to the appellant] in a very gentle tone” and decided to adopt a different approach and communicate more forcefully, which is why he took over from Constable Casey ([109]-[110]).
At 4:48pm, the conversation continued as follows ([18]):
[Mr Settineri]: “I can’t open the door”
[LSC Cashmere]: “Alright sweet then.”
LSC Cashmere said that he had decided that the situation had reached the threshold under s 22 of the MH Act to apprehend her. He reasoned that Ms Music would not speak, he had no confidence that she would not hurt or kill herself, said he had regard to the manner in which she had spoken to Constables Casey and Alo, and his own hearing of her ranting (about what police had done to her, about ‘locking up’ her son). To him, she sounded emotional and worked-up.
LSC Cashmere removed the flyscreen to the front door and Constable Alo kicked the front door twice. These officers and two further officers used a motor vehicle to climb up the wall and over the railing onto the balcony (where the appellant had previously been standing) ([21]). The four officers entered a glass sliding door into the residence ([21]). When they came across the appellant’s dog, who was growling, LSC Cashmere used a taser to incapacitate the dog ([23]). The officers then went downstairs in search of the appellant. One of the officers asked Mr Settineri where she was but he said that he did not know ([24]).
Mr Settineri took the dog outside when directed to do so by a police officer. On his return, he was asked to get onto the ground and put his hands behind him so that he could be handcuffed. The officer told him that he should have opened the front door when asked by police, to which Mr Settineri responded that to do so would have posed problems for his relationship with the appellant ([25]). The handcuffs were removed by about 4:58pm ([28]). He had a conversation with a police officer as follows ([28]):
[Officer]: “We told you at least five times – we don’t trust what you say.”
[Mr Settineri]: “But I’ve been with her for 30 years”
[Officer]: “If we leave and something happened, it’s on us, not on you, you understand? We have a duty of care you know”
[Mr Settineri]: “But you’ve got to understand that if I opened the door – I’ll get thrown out to the street for a night, I’ll be sleeping in the gutter bro. It her house, I’m only here assisting.”
At 4:58pm Mr Settineri told police that he had been in the house for the last couple of months and that they (he and the appellant) had a debt of $150,000 ([29]).
When the appellant heard the front door being kicked, she ran downstairs and left the townhouse through the back entrance. She used a chair to climb over the fence into a neighbour’s property and hid in the garden shed. She was crying and shaking and was concerned that the police would hurt her the way they had hurt her in 2018 ([116]).
For the next 40 minutes, the police searched the appellant’s townhouse and the surrounding area. A police helicopter and members of the Police Order and Riot Squad were called in to help find her ([30]). When the appellant heard the helicopter, she positioned herself under shelves in the shed so that her location could not be discerned from the helicopter ([117]). At 5:40pm the appellant was found, hiding in a neighbour’s garden shed ([31]).
When she emerged from the garden shed, the appellant put her hands above her head and said, “What have I done? Leave me alone” ([118]). The appellant’s evidence was that without any prior warning, LSC Cashmere walked up to her and sprayed the capsicum spray in her face ([118]). After she had been sprayed she crouched in a garden bed before falling over and lying in the bed ([33]). LSC Cashmere’s evidence was that he had told the appellant to get to the ground once before, during and after he had used the spray ([133]).
LSC Cashmere’s evidence of his thought processes was summarised by the primary judge as follows:
134 … he received the call about Ms Music, police had tried to communicate with her himself but that had not worked. He saw firsthand for himself that Constable Casey’s ‘empathetic’ attempt to communicate was unsuccessful. He himself had tried to communicate using a different tack, but that had not worked either. She had barricaded herself in the home. She had then fled as police entered the home and hidden herself (for 45 minutes). He maintained the view he held at the point of forced entry into her home that she needed to be apprehended and detained (under s 22). The unidentified officer gave her plain directions to lie on the ground. She did not comply with them. He said he was concerned that there was going to be a physical confrontation in the yard. He thought it was likely she would resist. He said he did not think that further communications would be useful. He foresaw the possibility she might jump the fence (which might cause injury).
135 He said he did not think it appropriate to try further communications. She had already demonstrated that she might jump fences and there was one behind her. Indeed there was a ‘kid’s climbing tree’ that she might use. And if she did start to climb the fence, there was more risk of injury. LSC Cashmere said he considered other means of getting hold of her. This included the use of a firearm, but that was inappropriate. He did not think a baton or taser was warranted since she did not present with a weapon. He said he thought of grabbing hold of her and throwing her to the ground, but was concerned she might have something from the shed and use that in a way that generated potential for injury against him or other police officers. Even the act of grabbing itself might cause injury to police or to Ms Music. He also said that he did not want to get into her physical space because of COVID-19. So, to LSC Cashmere, capsicum spray was most likely effective. In an outside environment, the spray would disperse immediately, facilitating police going in and grabbing hold of her.
She was sufficiently incapacitated to enable him to restrain her. The reason for the spray was to “stop us having to throw her on the ground and have a wrestle with her”.
[The appellant]: “You pepper sprayed me for what? For what? My eyes are stinging, I didn’t do anything wrong. I didn’t hurt you in any way”
[Police officer]: “Come here darling”
[The appellant]: “No fuck off. I didn’t hurt you in any way you just pepper sprayed me, don’t hurt me I didn’t do anything wrong”
[Police officer]: “Have you got anything on you that you shouldn’t have?”
[The appellant]: “Oh my god, what have I done wrong? You’re going to get a call over this. Stay back”
[Police officer]: “Relax, relax darling”
[The appellant]: “Don’t hurt me I didn’t do anything wrong”
[Police officer]: “We’re not interested in getting punched and spat on, that’s why you got sprayed.”
[The appellant]: “I didn’t spit on you”
[Police officer]: “Oh, you shaped up. Alright, we’re walking outside alright?”
[The appellant]: “What did I do wrong?”
[Police officer]: “Linda, my camera’s recording, ok?”
[The appellant]: “I don’t care you dogs I’ve done nothing wrong. My son –”
[Police officer]: “Come on”
[The appellant]: “I’ve done nothing wrong! I didn’t do anything wrong what did I do? Why did you pepper spray me, for what, for what?”
[Police officer]: “[you were acting] very erratically and aggressively to my officers”
[Linda]: “I was not aggressive; I don’t understand what I’ve done wrong”
Police officers took the appellant to an ambulance where she was restrained to a stretcher ([37]). At 5:45pm she told a paramedic that her insurance company had phoned and told her that her son was involved in an accident which it was not going to cover and that she would be sued for $150,000. She asked the insurance company where she was going to get the money from and told its representative, “I can’t deal with this shit anymore” ([36]).
At 6pm the appellant was taken by ambulance, under police guard, to Blacktown Hospital ([43]). She told the paramedic ([44]):
My ex gave my son my car, my son was suicidal, he was on ice, and I beg the coppers please, he’s going to self-harm himself. Instead of helping my son they put him in a police pursuit, they crashed my car. The lawyer of the investigation people rang me to say that my car’s not insured so they’re taking me to court now and I have to pay over $150,000 in damages. So, I said how am I going to do that I might as well kill myself. I’ve lost my job twice in COVID.
When asked by the paramedic, the appellant denied that she had previously had suicidal thoughts ([44]). Paramedics described the appellant as “very agitated and constantly threatening to sue police for what they have done to her and that she didn’t deserve this” ([45]).
The appellant was examined by medical officers at Blacktown Hospital and was admitted at 6:19pm ([46]). She was diagnosed with Adjustment Disorder with Anxious Distress but had no current suicidal ideation, psychotic symptoms or evidence of mood disorder ([46]).
In April 2022, police had obtained a warrant to attend Ms Music’s home. This was to do with allegations made by a girlfriend of Brandon, of sexual assault and drugging her. Police had asked her for her phone, but she threw it on the floor. Ms Music was arrested and taken to Mount Druitt police station after being suspected of trying to conceal or destroy evidence.
In his report, which was tendered by the respondent, Mr Gough opined that the appellant met the criteria of having a “mental health impairment” as a result of PTSD and Major Depressive Disorder. He considered, based on her history, that she had probably had the symptoms of both illnesses for nearly two decades and that she could no longer self-regulate her behaviours or her emotions ([401]). The primary judge said that “Mr Gough considered virtually all the aspects of Ms Music’s life: her family and development history, her educational and vocational histories, her history of relationships, her substance use history, her medical and psychological history” ([402]).
The primary judge noted the appellant’s objection to the report and insistence in her cross-examination that Mr Gough had lied in the report ([403]). However, the primary judge found that the appellant must have acquiesced in the tender of the report in the Local Court proceedings ([405]).
The primary judge accepted the following passage from Mr Gough’s report, which his Honour described as “not only plausible, but incisive” ([406]):
Throughout her childhood, adolescence and early adulthood, Ms Music was afforded emotional and physical safety, security and parental nurturing from normal emotional development. She is prosocial in her view of herself and her work ethic, never having been [un]employed until circumstances regarding COVID saw her retrenched… Tragically her prosocial activities such as stable employment, raising her son and living without fear has intersected with the violent and terrifying behaviours of her former partner that she has been exposed since she was 22 years of age that she can’t escape from, in part at least as it seems her son and her ex-partner have developed a dysfunctional alliance that continues to trap her. She now lives in a state of perpetual fear and hypervigilance, with the only anchors in her life being the relationship with her parents and siblings and the hope for her son’s rehabilitation. Ms Music stated that when she entered the relationship with her ex-partner, she was aspirational, motivated and excited to what the future held for her and her growing family. Over the five years of her relationship, she was faced with a severe disruption in her developing sense of her self, her role as a mother, her ability to find a sense of safety and security within the home for her and her son. She transitioned from an aspirational outlook towards her future to one of survival and fear. Her relationship and subsequent regular interactions with police and real estate agents have had a major negative impact on her psychological wellbeing and view of the community as a whole. This has entrenched her level of mistrust and detachment from those she sought refuge and safety from to protect her and her son from the horrors of her violent relationship. She has lost a level of insight and judgement regarding the behaviours of her ex-partner and transferred her anger and fear from her ex-partner to the police, with whom she states have failed in protecting her and her son. She now believes that the police view her as a criminal, rather than a person in need of protection…
Since the devolution of her relationship, and her ex-partners frantic efforts to stalk and intimidate her, Ms Music has not been able to escape constant triggers and reminders of the violent attacks and injuries perpetrated upon her. She often experiences an intense feeling of fight or flight and has adopted the fight response when she is unable to flee the perceived threat and provide the immediacy of self-protection. She has spent many years moving from house to house attempting to hide, and when she cannot escape, she uses anger, aggressiveness and veiled threats in an attempt to protect herself. Her view of who to trust within the community has been significantly distorted, hence her running from the police when they … attended her house on the night in question …
Within Ms Rose’s notes are references to [the appellant’s] ‘dread’ of police (7 September 2022), Ms Music’s sense of injustice: she could not “get over what was done” (5 October 2022) and believe[d] she was a victim of ‘police brutality’ (3 November 2022, 8 March 2023) or subjected to “torture” (25 and 31 January 2023). The notes indicate:
• her sense of connection between the events of 30 September 2021 and ‘flashbacks from police’ (13 October 2022);
• being evicted the next day (27 October 2022);
• complaints she was still ‘triggered’ by the police incident (29 November 2022, 24 May 2024) and had nightmares about the incidents (13 October 2022);
• that she considered herself very traumatised by the incident – to such a degree that she starts shaking when she sees police (31 January 2023), or was triggered by their presence (14 June 2023), had dreams about police (29 March 2023) or was scarred by memories of the incident (13 September 2023).
Ms Rose’s notes indicated that the appellant was contemplating a lawsuit (the present proceedings were commenced on 17 August 2023) from late 2022. Ms Rose also recorded the appellant’s “sense of being ‘triggered’ by frequent or continuing dealings she has with police due to her son’s troubles and preparation of this case for hearing” ([379]).
From January 2025, the appellant consulted with Anica Spatz for psychological therapy ([380]). The initial session on 13 January 2025 occurred shortly after the appellant had communicated via AVL with her son who was in gaol. Ms Spatz took a history from the appellant about the subject incident and recorded the appellant’s view that the incident had been “highly traumatic to her”; she had been struggling with PTSD symptoms ever since; she had received unfair treatment from the police; and felt that the police had destroyed her life ([381]).
The primary judge said:
338 However, I am not persuaded that the exacerbation of PTSD was consequential from physical injury. It was not a case, say, where depression arose from suffering of pain; even if Ms Music momentarily was distressed by the thought of losing her eyesight. Her case, to use the terminology adopted in Part 3 of the CL Act, was one of ‘pure mental harm’, rather than ‘consequential mental harm’. The distinction was illuminated in the decision of Campbell J in Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 where his Honour noted that although the incident involved a physical attack and that the plaintiff sustained physical injuries, the damages claimed related solely to his psychiatric condition. At [83] his Honour said:
“Those blows and his injuries are part and parcel of the incident. But I find it difficult to accept that the PTSD is merely consequential upon those physical injuries. Rather, in my judgment, that psychiatric condition is a case of pure mental harm being an independent injury arising out of the fear for his life suffered by Mr Wright as a result of George assaulting him and attempting to throw him off the balcony.”
339 The asserted psychological harm (exacerbation of pre-existing PTSD) constitutes a form of ‘injury’ that is capable of falling within the notion of ‘injury’ for the purposes of s 3B.
When Ms Spatz assessed the appellant on 28 January 2025, she considered that the appellant’s PTSD was the result of domestic violence from her former partner as well as police violence ([382]). Whenever the appellant went to gaol to visit her son, she felt that her PTSD was “triggered” by being body-searched by police officers ([382]).
On 24 March 2025, Ms Spatz asked the appellant to complete two questionnaires as a result of which Ms Spatz opined that it was likely that she had PTSD ([384]). In a progress report sent to Dr Benedicto, Ms Spatz reported ([385]):
Additionally, she has a trauma background that included severe domestic violence incidents that made her fear for her life on several occasions. However, the recent trauma inflicted by police left her with significantly worse trauma reaction. The nature of the trauma was distinctly different in that she was never expecting to be mistreated by police. She was shocked by the sheer force police officers applied. She was in intense pain from how police used pepper spray and physical force to restrain her, when she was not posing a threat to them. She has severe re-experiencing and hyperarousal symptoms due to incidents with the police.
394 Dr Allnutt thought that although Ms Music had been exposed to prior trauma, as well as pre-existing stressors, the force applied to her on the day in question made a substantial and material contribution to aggravating a pre-existing trauma and stressor-related disorder and that she had “now” suffered from a chronic PTSD, depression and associated anxiety.
395 Dr Allnutt regarded her prognosis as being guarded at the date of the report. When he gave evidence, he explained that although he thought her ‘aggravation’ would reduce over time, he could not say when that would be.
Dr Allnutt agreed with the proposition that her on-going relationship with her former partner, entailing the violent history, was a substantial contributing factor to her mental state, amongst other factors. In re-examination, he identified those other factors as her state of homelessness, difficulties with son (and issues affecting him, such as drugs, incarceration and his abusive behaviour towards her) and experience with police.
OC spray is a defensive spray used for self-defence to assist in the restraint of a subject, or to limit a subject’s actions …
…
Defensive sprays may be used for … a less than lethal option for controlling people, where violent resistance or confrontation occurs (or is likely to occur).
The Manual set out procedures for using the spray, including the “concealed position” and the giving of a warning before its use, in order to give the putative subject of the spray an opportunity to comply with directions ([145]).
The Manual also listed various factors which were to be taken into account when deciding whether to use “OC defensive spray as a tactical option” ([142]):
Size – disparity or difference between officer and subject/s.
Special skills of officer and subject/s e.g. martial arts.
Age – disparity or difference between officer and subject/s.
Gender of officer and subject.
Multiple subjects or subjects in the vicinity.
Proximity of subject to a weapon (firearms, knife, officer’s firearm).
Member injured or disabled.
N.B. You must remember that OC spray is only one of several tactical options. Certain factors or situations may require the use of a variety of tactical options to resolve the situation.
143 LSC Cashmere was taken through each of these stated considerations. He acknowledged he was larger than Ms Music. He could have overpowered her. Special skills were not in issue. There was an age disparity: she was middle-aged and older (he was 29). He was a male. There were multiple officers in the background: the riot squad officer. Others were conducting searches. He did not see her holding a weapon or brandishing a weapon, or anything that could be used as a weapon, but he was anxious she might have one concealed. The factor of an injured or disabled police officer did not arise. He asserted that he took into account these enumerated considerations.
144 He was also referred to a tactical options model and specifically a circle (p 11) which, among other things, featured reference to communication with the intended subject of the spray. LSC Cashmere said that he tried to communicate with Ms Music: he told her to get on the ground and had heard other officers tell her to get on the ground.
145 LSC Cashmere disputed that he had omitted to follow procedures for the use of the spray, including the ‘concealed position’ (p 16 of Exhibit AC) or to give Ms Music warning of his preparedness to use the capsicum spray; both of which, it was suggested, gave the intended (or apprehended) subject of a prospective spray the opportunity to comply with directions.
146 LSC Cashmere was challenged on his assertion that police acted in self-defence. Asked to explain how Ms Music presented a threat, he referred to Ms Music’s behaviour the whole time: she would not comply with a direction. He asserted that it was inevitable police [would] have to restrain her as part of the police’[s] obligation to ensure her safety and take her to the hospital. LSC Cashmere explained that at no stage had she complied with police directions so they had to take a hold of her. Again and again, however, she indicated she there would be some level of violence. He agreed that she appeared distressed, but asked whether he thought she was ‘aggressive’, he disagreed with that description. He thought she was confrontational and non-compliant.
147 He rejected the proposition that in spraying Ms Music, he was not concerned about s 22 or that he had sprayed Ms Music out of frustration and a desire to ‘bring this whole affair to an end’.
In all that you do, be sure to apply the least restrictive actions possible upon a person suffering from a mental illness. The use of force, whilst justifiable in appropriate circumstances, should be utilised as a last resort. Use effective communication skills and other tools at your disposal to de-escalate potentially violent situations, where possible.
On certain occasions, LSC Cashmere gave evidence which I thought was inherently implausible. I thought his attempt to indicate compliance with the manual for the use of capsicum spray, and align his thought processes at the time with the enumerated considerations to be taken into account unconvincing. In making that criticism, I do not mean to suggest that the manual itself prescribed rules. But to take one example, his maintenance of the view that a verbal statement by Ms Music telling police to ‘fuck off’ constituted an implied threat to police struck me as self-serving. I treat his evidence with some caution.
The primary judge observed at [281] that “it was not seriously disputed that LSC Cashmere subjectively believed that the administration of the capsicum spray was necessary to restrain the appellant for the purpose of taking her to a mental health facility”. His Honour was not persuaded that the use of capsicum spray fell within the self-defence exception ([292]). The primary judge noted that LSC Cashmere accepted that the only justification for its use was to avoid a violent confrontation with the appellant that was occurring or likely to occur ([292]).
The primary judge rejected LSC Cashmere’s evidence of his thought processes about the use of the capsicum spray and considered the better view to be that “just as [LSC Cashmere] was about to step into the backyard, as he descended the stairs from the deck, he had resolved to physically restrain her whilst the opportunity presented itself to do so as quickly as possible, and he thought that the immediate use of the spray was the most appropriate way to do that” ([296]).
The primary judge rejected the State’s submission that LSC Cashmere had acted in self-defence, having regard to the circumstance that the appellant was not carrying any weapon and her hands were open in front of her chest ([297]). The primary judge did not consider the appellant to pose a reasonable threat of violence ([299]) or that there was a real threat that she would escape ([301]). His Honour found ([301]):
At the point when the spray was deployed, she was closely surrounded by officers in a small space and, in a practical sense, was already under police control.
In finding that the use of the capsicum spray was not a reasonable use of force ([309]), his Honour made the following associated findings:
LSC Cashmere “did not seriously turn his mind to the significance that he was dealing with an apparently mentally troubled person: he did not take any steps to ‘de-escalate’” ([302]);
the Body-Worn Camera footage “indicates that LSC Cashmere, other than perhaps yelling at [the appellant] to get to the ground, made no attempt to communicate with her” ([302]);
a reasonable arresting officer “would have considered that [the appellant] required patient and sensitive handling” ([302]);
LSC Cashmere “issued no warning to Ms Music that unless she complied with his directions, he was prepared to administer the capsicum spray against her” ([303]);
“a reasonable arresting officer in LSC Cashmere’s position would, or should have, appreciated that to administer the spray without warning to an apparently mentally disturbed person might be the sort of thing that would set off the sense of affront and indignation that has fuelled Ms Music ever since” ([303]);
LSC Cashmere “resorted to force prematurely”, adopted a “confrontational” approach and used the capsicum spray “against an apparently mentally disturbed person as a first resort, not a last resort” ([305]); and
LSC Cashmere’s stated concern about COVID-19 appeared to be “an afterthought” which was “another instance of reconstruction” ([306]).
Whilst I accept that Ms Music was an unreliable historian in not insignificant respects, partly because of her paranoia, partly because of her jaundiced attitude towards police, and partly because of a sense of exaggeration, I remain satisfied on the probabilities that LSC Cashmere’s conduct did produce this detrimental difference and that her pre-existing PTSD was further disturbed or made more ‘chronic’ as a result of the spray being deployed against her.
The primary judge accepted that, as the appellant had seen Ms Rose and Ms Wachala for therapeutic reasons, it was probable that the appellant gave them “an honest indication of her thoughts throughout” ([430]). His Honour noted that on both occasions when the appellant saw Ms Wachala, she referred to “the triggering effect of LSC Cashmere’s conduct” ([431]). The primary judge considered there to be force in the appellant’s submission that, at the time of the subject incident, she had not seen Ms Brown for two and a half years ([432]) and did not consider there to be any “sharp differences” between the opinions of Dr Allnutt and Mr Gough ([433]).
His Honour said:
434 Further, with reference to the objective probabilities, although the events of 30 September 2021 may not have been the first occasion in which Ms Music had a clear conflict with police – she was obviously aggrieved with what occurred in January 2019 – what police officers did that day, including primarily the use of the spray, was inherently the type of thing that would cause a mentally troubled person nightmares or flashbacks since there was the direct infliction of force upon her body. It appears that this was the first time that police officers inflicted force on her. The complaint that Ms Music later expressed to Ms Spatz, that she was shocked that she would be mistreated by police, although expressed in 2025 in close proximity to the hearing, struck me as authentic and not a fabrication. She was already, as it were, ‘on the run’ from police, or evading them, in the lead up to being sprayed. As indicated, this conduct itself was an apparent manifestation of mental disturbance. Being the object of a police officer’s capsicum spray took things to a new level.
435 Factual causation is therefore made out, for the purposes of s 5D(1)(a) of [the Act] (on the premise, as I have found, that the provisions in Part 1A apply) and, at any rate, causation would have been found under general law principles. I did not understand the State to argue that normative considerations would preclude acceptance that the ‘scope of liability’ requirement in s 5D(1)(b) was also established. I find that LSC Cashmere’s deployment of the capsicum spray caused an exacerbation of Ms Music’s pre-existing PTSD.
(Emphasis added.)
It was submitted on behalf of the appellant that, in respect of the battery claim, if general damages were assessed at common law, an award of $60,000 would be appropriate and that if damages were assessed under the Act, the psychological injury ought be assessed at 26% of a most extreme case, giving rise to a figure of $64,500 ([436]-[437]).
The primary judge found that there were difficulties in assessing the degree of aggravation of the appellant’s PTSD, including in circumstances where her former partner’s conduct had “continuing trauma-inducing effects” and, at the time of the subject incident, she had a “solidly ingrained” fear of police which apparently revived whenever she came into contact with police, such as when visiting her son in gaol or arising from incidents with Mr Settineri ([443]). His Honour referred to Owlstara v State of New South Wales [2020] NSWCA 217; (2020) 285 A Crim R 53, which was distinguished, including on the basis that the award of $60,000 for general damages for aggravation of Ms Owlstara’s mental condition was for three torts: assault, battery and false imprisonment (whereas the only claim on which the appellant succeeded was battery).
The primary judge said that ([443]): “Ms Music has exaggerated in her own mind the contribution that police has played in adding to her trauma and mental health issues and that she has continually re-inforced that perception in the minds of counsellors who, when expressing their opinions, heavily relied upon what she informs them.” His Honour considered there to be force in the State’s submission that the aggravation of the appellant’s PTSD due to the subject incident was “comparatively small” ([444]). The primary judge said:
445 I accept that the episode would have been shocking to Ms Music. I also accept that she was, and remains, genuinely indignant as to what occurred. Further, she also genuinely considers that her appearance has been disfigured by the use of the spray. There is some support for that (Exhibit H) and Ms Music had complained to at least one of her counsellors about it. That is, that her interest in her bodily integrity was infringed.
446 In the assessment of compensatory damages for the battery, I do not consider that I am confined simply to the exacerbation of her PTSD. Allowance should be made on a whole-body basis. Nevertheless, with some reservation, I find that Ms Music has barely reached the threshold of 16% of a most extreme case such as may found recovery of that award. That yields an entitlement of $12,000.
447 Had the matter been determined in general law, I would have awarded a sum for compensatory damages of $15,000.
454 Exemplary damages are punitive in nature, based upon proof of a conscious and contumelious disregard of another’s rights: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at [9]. Such award serves the dual purposes of punishment and deterrence (both specific and general): Lamb v Cotogno (1987) 164 CLR 1 at 9-10. In XL Petroleum (NSW) Brennan J said (at 471):
“The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co, ‘to teach a wrong-doer that tort does not pay’.”
455 In the High Court’s decision in Ibbett, it was pointed out that exemplary damages may be awarded in an action for trespass to land as a means by which the State is called to account for the misconduct of those acting under or with the authority of the Executive Government [citing New South Wales v Ibbett (2006) 229 CLR 638 at [38]].
The primary judge referred to statements of principle concerning general deterrence in the criminal law of sentencing to the effect that general deterrence will have a lesser role where no pre-meditation was involved ([459]). His Honour noted that the appellant’s trial counsel acknowledged that LSC Cashmere had made an “error of judgment” ([459]). However, his Honour noted that the appellant’s trial counsel also submitted that:
the use of the capsicum spray constituted more than a lapse of judgment and was an “expedient” action to resolve the problem “as quickly as possible whilst not seriously entertaining other options” ([460]); and
LSC Cashmere, who was acting in a leadership role, as the senior police officer on the scene, deviated from police protocols ([461]).
The primary judge rejected the appellant’s claim for exemplary damages and noted that it was not put to LSC Cashmere that he did not honestly believe that it was necessary for him to spray the appellant ([463]). His Honour also said that the “guidelines” were not “prescriptive” and that the task of police was made more difficult by the appellant’s appearance as mentally disturbed and her lack of co-operation ([463]). The primary judge found that there was “no pre-meditation”; LSC Cashmere did not act for the sake of expediency; and he exercised his power bona fides ([466]).
The primary judge’s focus on LSC Cashmere’s subjective intention is relied on to challenge his Honour’s refusal to award exemplary damages (ground 5).
| FYE 30 June | Taxable income | | 2018 | $44,557 | | 2019 | $79,711 | | 2020 | $86,132 | | 2021 | $26,622 | | 2022 | $15,108 |
474 At the time she gave evidence, she said she was unemployed; however, she held out hope that she might be able to work with a catering company when it set it itself up at Homebush. She said she preferred, if she could, to work alone; ‘behind the scenes’. She indicated she was motivated to work.
475 Dr Allnut[t] considered that Ms Music’s work capacity was undermined since the events on 30 September 2021.
In the Court below, the appellant sought a buffer sum of $30,000, relying on the principles in State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87] (Heydon JA) ([476]-[477]). The primary judge noted the State’s submission that her difficulties with obtaining and keeping employment arose from the circumstance that she was constantly on the run from Mr Settineri ([478]).
His Honour accepted that it was common ground that an award of damages ought make allowance for the principle in DC v State of New South Wales [2016] NSWCA 198 (DC) at [353]-[355] (Ward JA) that damages ought be discounted to reflect suffering from “non-tortious” events not subject to her present claim. His Honour found:
479 The State’s submissions had force. Nevertheless, I find that in the face of her difficulties, Ms Music has a residual level of motivation to work and some skills; particularly in what I might call the care economy; ie in helping other people.
480 Unfortunately, to the extent that she is hindered in exercising her work capacity, this is much more the result of ‘non-tortious’ events than residual effects of the events of 30 September 2021. That being so, applying the DC principle and accepting also the proposition that a buffer sum would be appropriate, I make allowance for the sum of $10,000 for this claimed head of loss.
(Emphasis added to indicate the award which is the subject of challenge in ground 6.)
It is convenient to address all questions of liability (which arise on the cross-appeal and the notice of contention) before turning to the grounds of appeal relating to damages since, if the State is successful in its cross-appeal and the notice of contention is not made out, damages will fall away.
The cross-appeal turns on the principles of causation which apply to intentional torts such as battery, which are to be distinguished from the principles of causation which apply to the tort of negligence. In general terms, to establish the tort of negligence, the plaintiff must prove factual causation (that the negligence caused the harm: s 5D(1)(a)) and legal causation (that it is appropriate for the scope of liability to extend to the harm: s 5D(1)(b)) but the harm need otherwise only be reasonably foreseeable. However, the threshold for causation is higher for intentional torts.
The relevant principles relating to causation were set out by this Court in State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 (Spedding) at [291]:
In order to prove that the harm from an intentional tort ought sound in damages, the injured party is required to prove, first, causation, namely, that the tortious act caused the harm and, second, that the tortfeasor had an actual or presumed intention to cause the harm. The tortfeasor’s intention to cause the harm will be presumed if the harm is the natural and probable consequence of the tort. Thus foreseeability of harm has no role to play in limiting the injured party’s damages. These propositions were confirmed with respect to the tort of injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [13]-[14] (Gleeson CJ), [73]-[79] (Gummow J), [114] (Kirby J). This Court has treated these principles as being of general application for the recovery of loss for intentional torts: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing).
(Emphasis added.)
Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts:
a a tortious act need not be the sole or principal cause of harm to be compensable; it is sufficient if it is a material or contributing cause of harm;
b the wrongdoer must take the injured party as he or she finds him or her. Thus a wrongdoer who causes a pre-existing medical condition in the injured party to become symptomatic is liable for such harm as the wrongdoer (who bears the onus) cannot establish would have eventuated but for the tortious harm: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; and
c a wrongdoer is not relieved of the consequences of the wrongdoing because the injured party would not have suffered as he or she did unless other contributing factors had existed: Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ) and 170-171 (Windeyer J); [1965] HCA 34.
Mr Sexton SC, who appeared with Ms Jaffray for the State, submitted that the result of the primary judge’s findings was that the threshold for causation for battery (being an intentional tort) was not reached as the harm was neither intended, nor the natural and probable consequence of the tort and, accordingly, the appellant ought to have failed in her claim. He relied on the following statements by the primary judge:
“… [i]t was for the appellant to prove that LSC Cashmere’s conduct in deploying the capsicum spray against her materially contributed to her injury” ([421], citing Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53 (Amaca) at [70]);
“the test for material contribution is undemanding … [t]here must be a material difference” ([424], citing Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 (Tabet) at [66]);
“[f]actual causation is therefore made out, for the purposes of s 5D(1)(a) of [the Act] … and … would have been found under general law principles” ([435]); and
section 5D of the Act applies to battery ([435]).
Mr Sexton submitted that Amaca and Tabet, which were negligence cases, stated the orthodox principles applicable to causation for the purposes of negligence claims but did not address the additional and distinct requirement for liability for an intentional tort: that the tortfeasor have an actual or presumed (requiring proof that the harm was the natural and reasonable consequence of the tortious act) intention to cause the harm for which damages are claimed. He submitted that the primary judge’s reliance on Amaca and Tabet and the language of [421]-[435] indicated that his Honour did not apply the correct test. Further, he submitted that the primary judge was in error in regarding s 5D of the Act as applying to battery in circumstances where ss 5 and 5A of the Act provide that Part 1A of the Act applies to claims for damages for harm “resulting from negligence”.
Mr Sexton further submitted that the primary judge’s finding about LSC Cashmere’s subjective intention ([343]) had the effect that the appellant was required to establish “presumed intention” in order to prove causation. He submitted that the following passage from [343] had the effect that presumed intention was not established:
I would not have been convinced under any less demanding legal requirement that exacerbation of a pre-existing mental illness was either inevitable, or the natural or probable, consequence as a result of the infliction of the spray or that LSC Cashmere was reckless to that possibility; even if it might arguably have been foreseeable.
Further, with reference to the objective probabilities, although the events of 30 September 2021 may not have been the first occasion in which Ms Music had a clear conflict with police – she was obviously aggrieved with what occurred in January 2019 – what police officers did that day, including primarily the use of the spray, was inherently the type of thing that would cause a mentally troubled person nightmares or flashbacks since there was the direct infliction of force upon her body.
(Emphasis added.)
The appellant’s notice of contention alleged that [343] was not a finding of causation but that if it were, it was incorrect and that the primary judge ought to have found, on the basis of his Honour’s findings in the enumerated paragraphs, including [434] that psychiatric injury was the natural and probable consequence of the use of capsicum spray on the appellant in the course of the subject incident. The paragraphs relied on by the appellant, which are referred to in the above narrative, are set out in the notice of contention (extracted above).
In response, Mr Sexton submitted that it was significant that the appellant did not challenge the correctness of [338], where the primary judge was not persuaded that the exacerbation of the appellant’s PTSD was the consequence of the physical injury from the capsicum spray as opposed to the fear which its use engendered in the appellant. He argued that it was difficult to see how the Court could find that, notwithstanding that the aggravation was not consequential upon the physical injury inflicted by the spray, it was nevertheless the “natural and probable” result of that infliction.
I reject this submission. Mental harm in the form of aggravation of a mental illness or disorder can flow from a physical act even if the physical injuries of themselves occasioned by the act did not cause the aggravation. For example, a plaintiff who suffers from battery when dangled out of a window may sustain an aggravation of a mental illness or disorder even though physical contact with the defendant did not result in anything more than a transient physical injury.
Because of its terms, I am persuaded that it is appropriate to read [343] as a finding. However, it is inconsistent with the highlighted portion of [434]. The words in [434] that the subject incident “was inherently the type of thing that would cause a mentally troubled person [such as the police had assessed the appellant to be on that day] nightmares or flashbacks [being the classic indicia of PTSD] since there was the direct infliction of force upon her body [constituted by the use of capsicum spray on the appellant]” are tantamount to a finding that the aggravation of the appellant’s mental illness was the natural and probable consequence of her being sprayed with capsicum spray. The finding in [434] is detailed and apposite to the facts of the present case. Further, it is supported by the findings listed in the notice of contention, including as to the appellant’s known history of mental illness and the circumstance that the police had formed the view that she needed to be taken to a mental health facility under s 22 of the Mental Health Act.
It is difficult to reconcile [343] with [434]. It is possible that the judgment, although delivered promptly, was written at different times and the potential inconsistency between [343] and [434] was not appreciated at the time. Whatever be the reason, I consider that the finding in [434] is not only correct but that it represented the primary judge’s ultimate assessment of the question of causation for the intentional tort of battery. It complies with the applicable legal principles of causation for intentional torts, as identified in .
Mr Chiu submitted that the primary judge’s contingent assessment of general damages at common law was discordant with his Honour’s finding that the severity of the appellant’s injuries ought be assessed at 16% of the most extreme case (which gave rise to an award of damages of $12,000 under the Act, being 1.5% of $804,000 (previously $761,500)). He argued that, whether general damages are assessed at common law or under the Act, the severity of the plaintiff’s injuries and their consequences needed to be assessed.
Mr Chiu relied on Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62 where the High Court rejected the submission that there was any “norm or standard” for general damages for particular injuries by reference to other decided cases. Their Honours (Barwick CJ, Kitto and Menzies JJ) said at 124:
It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. … The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.
Mr Chiu submitted that although the Act required four separate steps which were not required at common law, the foundation for an assessment of general damages or non-economic loss, was the same in each case: an assessment of the severity of the injured person’s injuries and their consequences. He identified the separate steps required under the Act:
a specification of the relationship, in percentage terms between the instant case and a most extreme case (s 16);
adherence to the statutory cap for cases adjudged to be 100% of a most extreme case (s 16(2), which, in October 2025 was $804,000);
advertence to the statutory threshold of 15% of a most extreme case before damages for non-economic loss can be awarded (s 16(1)); and
adjustment of the percentage found by the primary judge to a specified percentage by reference to the conversion in the table (in the present case, the table required the 16% assessment by the primary judge to be converted to 1.5%).
These submissions are premised on the existence of a discernible “exchange rate” between quantification of non-economic loss under the Act and assessment of general damages at common law. This in turn presupposes that the underlying integer of the severity of the injured person’s injuries and their consequences is a constant which produces consistent and explicable results, whether the Act or the common law apply. Whether this is the case is not a matter which this Court ought determine in the present appeal since this is not the way it was put to the primary judge.
This Court described as “trite” the principle that “[t]he adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel”: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46]; Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223 at [12] (Bell CJ, Stern JA, Griffiths AJA). In the Court below, as is evident from the above summary, it was submitted on behalf of the appellant that, if the Act applied, her non-economic loss ought be assessed at $64,000 and, if the common law applied, her general damages ought be assessed at $60,000 ([436]-[437]). This submission was inconsistent with the submission now sought to be put that the common law, unconstrained by the Act, could (and would) award more by way of general damages than the Act would allow for non-economic loss.
At common law, general damages for pain and suffering are regarded as discretionary. They have been described as “almost entirely [a] matter of impression and of common sense, and are only subject to review in very special cases”: Miller v Jennings (1954) 92 CLR 190 at 195; [1954] HCA 65, applied in El Assaad v AI Haje [2024] NSWCA 306 at [84]. In circumstances where the propositions put to this Court by Mr Chiu were not put to the primary judge and, indeed, were at odds with the submissions put to his Honour, I am not persuaded that the submissions ought be entertained, much less accepted. Accordingly, ground 2 has not been made out.
If manifest inadequacy is established, this amounts to a House v The King (1936) 55 CLR 499; [1936] HCA 40 error since it is, in effect, a conclusion that the award is outside a reasonable range of the discretion. The assessment of general damages for aggravation of pre-existing PTSD required a comparison to be made between the appellant’s condition before the subject incident and the appellant’s condition thereafter. To a large extent, this comparison could only be made on the basis of statements made by the appellant herself and, to the extent to which the histories obtained by experts corresponded with the facts as found by the primary judge, the opinions of experts.
As referred to above, the primary judge accepted that the subject incident had made a material contribution to the aggravation of the appellant’s PTSD and that this contribution would diminish over time but that the time period or rate of diminution could not be accurately predicted (in accordance with Dr Allnutt’s opinion). The primary judge was in a pre-eminent position to assess general damages based on his Honour’s assessment of the appellant.
In light of the primary judge’s findings about the magnitude of the material contribution made by the battery occasioned in the subject incident, I am not persuaded that the contingent award of damages at common law was manifestly inadequate. Accordingly, ground 4 has not been made out.
I have come to a different view as to exemplary damages from the one expressed by Mitchelmore and McHugh JJA in their respective reasons. I consider that the conduct in the present case warrants such an award. My reasons for so finding follow.
The appellant submitted that the primary judge was in error in refusing to award exemplary damages. Mr Chiu argued that LSC Cashmere’s conduct displayed a conscious disregard of the appellant’s rights in circumstances where he was the senior officer from the Blacktown Local Area Command on the scene and her conduct was found to be motivated by fear rather than aggression. He submitted that exemplary damages were appropriate where the tortfeasor’s conduct “merits punishment”: Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47. In New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 (Ibbett HC), the High Court emphasised the role of exemplary damages in “restraining the arbitrary and outrageous use of executive power”.
The appellant submitted that the primary judge appears to have rejected her claim for exemplary damages on an incorrect basis by regarding LSC Cashmere’s subjective belief and bona fides as determinative.
Mr Sexton submitted, relying on State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 (Madden) at [185], [190] and [191] (Bell CJ, Leeming and Stern JJA agreeing,) that the decision whether to award exemplary damages was a discretionary one and that it was open to the primary judge to refuse to make an award for exemplary damages.
In her written submissions, the appellant has identified the following factual findings as germane to whether an award of exemplary damages is warranted:
LSC Cashmere had decided to physically restrain the appellant “whilst the opportunity presented itself to do so as quickly as possible” and reached for capsicum spray as he descended the steps of the balcony before there had been any face-to-face contact with her ([294] and [296]);
the body worn video footage showed he was reaching for the spray within about three seconds of entering the backyard ([257]);
the appellant had displayed no weapon, had not advanced upon any officer and posed no immediate physical threat to anyone ([255]);
the use of capsicum spray was not a reasonable exercise of force in the circumstances ([292] and [309]);
self-defence was not available as a justification ([276] and [292]);
the use of capsicum spray in these circumstances was in “direct conflict” with the Manual which set out relevant considerations for its use ([458]); and
190 … while the decision to award exemplary damages is not discretionary in nature (Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99 at [92], citing Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1477]), the amount of exemplary damages to award is discretionary. As was observed in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [26]:
“[26] Because exemplary damages are awarded to punish, it is not surprising that their quantification should be treated as a matter for the discretion of the tribunal assessing damages.”
191 The discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King (1936) 55 CLR 499; [1936] HCA 40 constraints on appellate interference, and the quantum of exemplary damages cannot be challenged where the amount is within the limits of a “proper exercise” of discretion: see James v Hill [2004] NSWCA 301 at [84]–[85].
(Emphasis added.)
On the basis of Madden, the primary judge’s decision to reject the claim for exemplary damages is reviewable for error and is not constrained by House v The King principles. A decision not to award exemplary damages cannot be treated as tantamount to a decision to award exemplary damages of zero (and thus characterised as a decision about quantum).
I am persuaded that the primary judge was in error in regarding LSC Cashmere’s subjective intention as, if not the sole, then a significant, factor in determining whether exemplary damages ought be awarded. His Honour ought to have had regard to the whole of the circumstances, including the matters raised by the appellant which are listed above.
The primary judge’s recourse to general deterrence in the context of sentencing principles in the criminal law was not helpful. The moral culpability of an offender, which includes a consideration of the mental state of the offender at the time of the commission of the offence, is relevant to sentencing. A claim for exemplary damages against the State gives rise to much wider considerations than the question whether LSC Cashmere’s conduct warranted less censure (or was less morally culpable for the purposes of sentencing) because his subjective intention was bona fides. Rather, the question whether exemplary damages ought be awarded turns on whether his conduct as a police officer in twice spraying with capsicum spray an older woman who posed no threat to police and who was known to be suffering from mental illness was so arbitrary, precipitate and high-handed that the Court ought communicate its opprobrium to the State by awarding exemplary damages.
Such damages may be awarded as a means by which “the State is called to account by the common law for the misconduct of those acting or with the authority of the Executive Government”: Ibbett HC at [38]. The High Court in Ibbett HC continued at [39]:
… what is well established is that an award of exemplary damages may serve ‘a valuable purpose in restraining the arbitrary and outrageous use of executive power’ and ‘oppressive, arbitrary or unconstitutional action by the servants of the government’. The words are those of Lord Devlin, no supporter of the general use of this remedy. His Lordship added that: ‘the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.’
LSC Cashmere was acting with the authority of the NSW Police Force. His subjective intention was not determinative. The fact that, as the primary judge found, his subjective intention was that he was justified in using the capsicum spray on the appellant does not conclude the question whether it is appropriate to award exemplary damages. Although, as Mitchelmore JA has observed, it was not put to LSC Cashmere that he did not honestly believe that he needed to use the capsicum spray, I do not regard this matter as having particular weight in the circumstances of this case.
The subjective belief of an officer may be the product of ignorance, lack of training or extraneous matters, such as personal trauma, fatigue, or impatience. It is to be inferred that the Manual and the Handbook reflect a wealth of police experience and knowledge about how to deal with challenges which present themselves to police officers. They ought not lightly be put aside or disregarded. They ought be considered and applied, not slavishly but with careful consideration to the circumstances.
I am persuaded that, although the primary judge referred to the correct authorities, his Honour regarded LSC Cashmere’s state of mind as more relevant than it was and applied criminal law sentencing principles inappropriately.
In the present case, the circumstances in which LSC Cashmere used capsicum spray on the appellant, not once but twice, included:
there was nothing in the Manual which indicated that its use would be appropriate;
it was contrary to the Handbook;
the appellant was surrounded by officers, to whom she posed no threat, she was known to be mentally ill (such that her transport to a mental facility was thought to be warranted) and was unarmed; and
LSC Cashmere, the commanding officer, overcame the reservations of more junior police officers (whose instincts and training favoured a more moderate, courteous approach) by acting precipitately, without warning the appellant of the consequences of not complying with his demands.
LSC Cashmere’s conduct in using the capsicum spray in these circumstances was precipitate, high-handed, in disregard of police protocols and at the expense of the appellant’s mental state. I consider it to be appropriate, error having been established, for exemplary damages to be awarded to emphasise to police officers and the public generally the importance of compliance with police protocols which are designed to minimise the use of force except where necessary and to have regard to the rights of citizens to bodily integrity except where circumstances require a different approach. Exemplary damages will serve to communicate the Court’s opprobrium of high-handed and unnecessarily precipitate police conduct particularly in circumstances where, as in the present case, there is a considerable disparity between the age, size, mental state, fitness and number of police officers who are present and the age, size, mental state and fitness of the person against whom force is used.
The appellant submitted that the award of $10,000 for economic loss was, in effect, so small as to be derisory. However, the amount claimed by the appellant for past and future economic loss was $30,000. Having regard to the requirement of procedural fairness, this figure constituted an upper limit on the damages which could be awarded for this head of damages.
It was common ground in the Court below that a buffer was appropriate. It was also common ground that a discount in accordance with DC was appropriate to take account of the non-tortious causes of the appellant’s economic loss, including her being on the run from Mr Settineri. A buffer is, as Mr Sexton submitted, “quintessentially evaluative” (Orange 39). In the present case, the nature of the aggravation, its uncertain duration and the other parallel causes of the appellant’s loss of earning capacity made quantification of her economic loss difficult. It was common ground that, in order to disturb this finding, the appellant needed to show error in an evaluative judgment.
Although it was open to the primary judge to award a buffer in the sum sought by the appellant, I am not persuaded that it was erroneous for his Honour to award a buffer in the sum of $10,000. Ground 6 has not been made out.
As ground 1 has been made out, the primary judge’s figure for general damages of $15,000 ought be substituted for the award for non-economic loss of $12,000. As mine is a minority opinion, there is no utility in quantifying exemplary damages.
I am not aware of any reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. However, as the parties have not been heard as to costs, their rights under UCPR, r 36.16 will entitle them to make an application to vary the costs order if so advised.
For the reasons given above, I propose the following orders:
Allow the appeal in part.
Dismiss the cross-appeal on the basis of the appellant’s notice of contention.
Set aside the judgment of the Court below in the sum of $24,000 and, in lieu thereof, enter judgment in favour of the appellant in the sum of $27,000.
Order the respondent/cross-appellant to pay the appellant’s costs of the appeal and cross-appeal.
McHUGH JA: I have had the considerable advantage of reading in draft the reasons of Mitchelmore and Adamson JJA. I agree with the orders proposed by Mitchelmore JA at [84] and, subject to what follows, with the reasons her Honour gives, including those of Adamson JA which her Honour adopts.
As to Ground 1, I would add the following only by way of emphasis. In my opinion the respondent’s construction of s 3B(1)(a) is incongruous with the scheme of the Civil Liability Act. In particular, the regime governing the determination of damages for non-economic loss in s 16 operates by reference to a threshold expressed as a percentage (“the severity of the non-economic loss is at least 15% of a most extreme case”) and a table, also expressed in percentages (“as a proportion of a most extreme case”). Those percentages assume an overall severity of injury, which cannot be reconciled with a construction of s 3B(1)(a) which effectively divides the “civil liability of a person” in respect of a single intentional act into two or more components, some involving an intended injury (and thus beyond the s 16 regime), and some involving injuries which were not intended (which are captured by the s 16 regime).
As to Ground 5, and on the assumption that the correctness standard applies to the question whether exemplary damages should be awarded at all, in light of the primary judge’s undisturbed findings I have not found that question easy.
For the primary judge, the following findings appear to have been matters of great weight in his Honour’s decision not to award exemplary damages: that LSC Cashmere “was trying to exercise his powers conscientiously”, that there was “no pre-meditation”, that he “did not act for the sake of expediency”, and that his conduct amounted to, “at most, an error in professional judgment about the force he was permitted to exercise pursuant to a lawful function”: at [463]-[465]. Adamson JA considers that too much weight was given to those considerations and that the appeal should be allowed on this ground. I respectfully disagree with her Honour’s conclusion.
“… associated with the reasons of Fullagar J in Darling Island Stevedoring and Lighterage Co Ltd v Long, whereby the master is liable for a breach of duty resting on the servant, not on the master, and broken by the servant. The other theory, that adopted by Kitto J in Long, treats the act of the servant as the indirect act of the master.”
(At [6], citations omitted.)
A similar distinction was drawn by Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ in Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912 at [131] between vicarious liability in its “true” sense (i.e., a secondary “liability based on the attribution of the liability of another”), and “direct” liability (“a form of primary liability where the acts of another person are attributed to the defendant on the basis that the acts were done for the defendant with the defendant's express, implied or apparent authorisation”). See Bird v DP (2024) 283 CLR 45; [2024] HCA 41 at [31] and [44].
In Ibbett, the State had submitted that s 8 of the Vicarious Liability Act adopted the first theory, with the consequence that the focus in determining exemplary damages had to be “on the miscreants, the wrongdoers … and determining what would be an appropriate order against them, not what would be an appropriate order against the State”: at [49]. The High Court unanimously rejected the submission, holding at [56] that the statutory regime did not require “determination solely of what would be an appropriate award of exemplary damages against the police officers to the exclusion of considerations affecting the State itself”; see also at [57].
It is not necessary to express a concluded view as to whether “[t]he liability of the State for torts of the police” under the Vicarious Liability Act is, as Edelman J said in Cullen v New South Wales [2026] HCA 19; (2026) 100 ALJR 886 at [100], “true vicarious liability”; or may, instead, be founded on a theory of attribution of the officer’s act to the State (cf. Ibbett at [6] and [57]). From the perspective of an intermediate court of appeal, what is clear from Ibbett is that when it comes to the issue of exemplary damages in claims brought under the Vicarious Liability Act, the focus is not exclusively upon the conduct of the officer — here, LSC Cashmere. Rather, the High Court in Ibbett at [51], [54] and [60] expressly approved the approach summarised by Priestley JA in Adams v Kennedy (2000) 49 NSWLR 78 at 87; [2000] NSWCA 152 at [36] as follows:
“That figure [of exemplary damages] should indicate my view that the conduct of the [police officer] defendants was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.”
(As quoted by the High Court at Ibbett [51].)
“The theory was excellent, but the CSC members clearly had not been trained to the point where reasonable restraint was second nature to them, as they should have been, as employees expected to use force. Instead, at the first temptation they succumbed to what the trial judge rightly called ‘goon-squad machismo’.”
(As quoted by the High Court at Ibbett [53].)
The upshot is that, depending on the case advanced by the plaintiff, when applying the ordinary principles governing the award of exemplary damages (as to which, see below) to police tort claims, it may be proper to take into account not only the conduct of the particular officer which founds the claim but also any relevant conduct or omission of the State. Similarly, and again depending on the case advanced by the plaintiff, an award may be made for any recognised purpose of exemplary damages (such as denunciation) applicable to the State.
It follows that, in principle, a claim for exemplary damages could have been advanced against the State in this case which included an allegation that, for example, it had failed properly to train LSC Cashmere in the appropriate use of capsicum spray. However, as explained by Mitchelmore JA, the claim for exemplary damages was not put that way at first instance. Instead, the claim for exemplary damages was advanced on the basis that LSC Cashmere had failed to follow proper procedure.
That being so, and remembering that the involvement of the State may itself engage the purposes of exemplary damages, the conduct and state of mind of LSC Cashmere when exercising or purporting to exercise state power as a police officer must be central to the question whether an award of exemplary damages was warranted in this case.
The answer to that question depends on the purposes for which exemplary damages are awarded. In Austral, Gordon, Edelman, Gleeson, Jagot and Beech-Jones JJ said at [110] that “an award of exemplary damages shares [with the criminal law] the central purposes of punishment, including moral retribution (just desert), deterrence, denunciation, and ‘assuag[ing] any urge for revenge’” (citations omitted). As their Honours said at [111] (citations omitted):
“… The phrase adopted to describe ‘at least the greater part of the relevant field’ is ‘conscious wrongdoing in contumelious disregard of another’s rights’. The necessary conduct has been described as disclosing ‘fraud, malice, violence, cruelty, insolence or the like’. In the context of an award of exemplary damages, the concept of ‘malice’ may mean no more than proof of a state of mind involving some personal animus against the plaintiff. …”
“… A ‘contumelious disregard’ of a plaintiff’s rights may arise even if the disregard of the plaintiff’s rights is unintentional or occurs by conduct believed to be lawful, the meaning of contumelious conduct being conduct that is apt to humiliate and insult the plaintiff. While a finding of ‘conscious wrongdoing in contumelious disregard of another's rights’ may be sufficient it is not necessary for an award of exemplary damages.”
“The core, or ‘strict’, purpose of punishment, moral retribution or just desert, features most prominently in instances where ‘the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government’. In that calling to account, exemplary damages serve ‘a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law’. …”
(Citations omitted.)
Bearing those principles in mind, it is necessary to form an evaluative judgment as to whether LSC Cashmere’s conduct as a police officer warrants punishment by an award of exemplary damages, notwithstanding the absence of any finding of conscious wrongdoing. In my opinion it does not.
I reach that conclusion acknowledging that there are considerations tending in favour of an award of exemplary damages. Although LSC Cashmere’s conduct did not involve conscious wrongdoing, it may fairly be characterised as “contumelious” in that it was “apt to humiliate and insult the plaintiff”: Ibbett at [111]. His decision as a police officer to use capsicum spray, without warning (“as a first resort; not a last resort”: PJ [305]), on “an apparently mentally disturbed person” (PJ [303]) in the appellant’s vulnerable circumstances calls for disapproval. Considerations of both general and specific deterrence are engaged.
However, on the primary judge’s unchallenged findings, none of the words “fraud, malice, violence, cruelty, insolence or the like” aptly describes LSC Cashmere’s state of mind with respect to the appellant. The primary judge found that LSC Cashmere subjectively believed “that it was probable that Ms Music might kill or harm herself and that it would be beneficial for her welfare that she be assessed by a mental health institution”: at [243] and [279]; that those beliefs were reasonably based: at [280]; and that “LSC Cashmere subjectively believed that the administration of the capsicum spray was necessary to restrain Ms Music for the purpose of taking her to a mental health facility”: at [281]. It was, however, not objectively “reasonable for LSC Cashmere to administer the spray in order to achieve his purpose of taking [the appellant] to a mental health facility in the circumstances that he did”: at [292].
On those findings, LSC Cashmere used the capsicum spray — unreasonably and misguidedly but in good faith — for the purpose of protecting the appellant’s welfare. That conduct is not aptly described as “arbitrary and outrageous” in the sense used above, and the claim for exemplary damages was not advanced on the basis of any other distinct act or omission of the State. The case for moral retribution, just desert and punishment is not strong.
Taking all those matters together, although I consider LSC Cashmere’s conduct to have fallen short of the standards to be expected of a police officer, it did not fall so far short as to warrant punishment by an award of exemplary damages. Like Mitchelmore JA, I would dismiss Ground 5.
**********
Appeal allowed in part. Cross-appeal dismissed on the basis of the appellant’s notice of contention. The District Court judgment of $24,000 was set aside and judgment for $27,000 entered. The respondent/cross-appellant was ordered to pay the appellant’s costs of the appeal and cross-appeal.
On appeal, the appellant sought to challenge certain factual findings of the primary judge which informed his Honour’s conclusion that the respondent did not drive in such a manner with the intention of causing injury to the appellant: at [124]. Cavanagh J observed that the appellant did not specify an intentional tort in the pleading but the case appeared to have proceeded on the basis that the conduct of the respondent, if accepted, would constitute battery: at [126]. The appellant sought to rely on s 3B(1)(a) in order to avoid the consequences of any finding of contributory negligence, on the basis that the respondent intended to cause injury: at [130]. Noting that on the authority of Dickson, the appellant had to establish both that the respondent committed an intentional act and that the act was done with intent to cause injury, his Honour stated at [135]:
The part of [343] that I have emphasised above was expressed in contingent terms. It was not the subject of express argument, and his Honour did not consider that a “less demanding legal requirement” was in any event applicable. Against that background, I consider that the emphasised part is best characterised as an observation, not a definitive finding. Even if it were a finding, it would not be one that the State could rely upon as decisive of causation, when the test was not raised below other than in passing on a different issue.
Support for this characterisation appears in the section of the reasons that directly addressed the causation question, including where his Honour, in [434], specifically referred to a number of matters on which the appellant now relies in support of a finding that the mental harm she suffered was the natural and probable consequence of being sprayed. When the two parts of the reasons are read and understood properly and in their respective contexts, there is no material tension between the content of [434], which I have summarised in [Error! Reference source not found.] above, and what his Honour said in [343].
As I noted above, in ground 2 of the cross-appeal, the State took issue with the primary judge’s finding that LSC Cashmere’s deploying the capsicum spray materially contributed to her injury. By contrast, by ground 3 of the notice of contention on the cross-appeal, the appellant contended that on the basis of other findings that his Honour made, “including those contained in PJ [56], [84], [90], [100], [104], [106], [112], [168], [238], [245] and [421]-[435]”, the primary judge should have found that the exacerbation of her psychiatric injury was a natural and probable consequence of LSC Cashmere deploying capsicum spray in the circumstances of this case. If the notice of contention ground is made out, then ground 2 of the cross-appeal, which challenged his Honour’s causation findings at a lower threshold, would necessarily be dismissed.
Dr Allnutt, a senior consultant forensic psychiatrist who gave evidence for the appellant, diagnosed the appellant as having “a constellation of depressive, anxiety and PTSD symptoms”. He acknowledged that a number of “pre-existing stressors”, including her son’s drug use and her difficulties with him, her former partner’s ongoing coercive control, as well as her eviction after the incident, were contributing and aggravating factors. Nonetheless, as the primary judge recorded at [394], Dr Allnutt’s opinion was that “the force applied to her on the day in question made a substantial and material contribution to aggravating a pre-existing trauma and stressor-related disorder and that she had ‘now’ suffered from a chronic PTSD, depression and associated anxiety”. He adhered in substance to this view in cross-examination: at [396].
The paragraphs on which the appellant variously relied revealed the following:
There were COPS records detailing two incidents involving the appellant interacting with police, on 30 May 2018 and 19-20 January 2019, in the course of which she had manifested suicidal ideation or threats to kill herself, both of which had resulted in her being taken to hospital and scheduled under the Mental Health Act 2007 (NSW) (at [56]), which Constables Alo and Casey had reviewed (at [90]), as had LSC Cashmere (at [104]).
In LSC Cashmere’s 13 years of experience in the Police Force, it was not uncommon for people to present in the fashion that the appellant did on the day of the incident, and for the police to have such a concern for the person making a comment like the one that the appellant had made that they consider it inappropriate to leave them and instead feel the need to take the person to a facility under s 22 of the Mental Health Act to be dealt with by someone more qualified than police officers (at [100]).
The information that LSC Cashmere reviewed about the appellant included her prior interactions with police for reasons relating to mental health, and he was also aware from daily briefings about the appellant’s son’s involvement in a number of police pursuits a couple of days prior (at [104]).
Upon his arrival at the scene, LSC Cashmere received a briefing about the information the other officers had received up to that point (at [106]). He formed the view that the situation had reached the threshold under s 22 of the Mental Health Act, including because he had no confidence that the appellant would not hurt or kill herself, having regard to the manner in which she had spoken to the other officers and what he had himself heard her say (at [84], [112]).
The appellant submitted that on the basis of those findings, it was apparent that:
the police officers, including LSC Cashmere, were at the premises because of concerns under s 22 of the Mental Health Act;
LSC Cashmere had access to, and accessed, information that was available to him from which he found out more about the appellant’s mental health history, including previous interactions between the appellant and the police; and
LSC Cashmere personally formed a view that the appellant should be scheduled under the Mental Health Act.
Adamson JA has set out in detail the events that occurred following the arrival of the police at the appellant’s premises and, specifically, what occurred when the appellant emerged from the shed in her neighbour’s backyard where she had been hiding. Considered against the background of the circumstances that were known to LSC Cashmere at the time, it was the natural and probable consequence of LSC Cashmere deploying capsicum spray in the appellant’s face, virtually immediately upon her emerging from the shed, that it would aggravate her pre-existing mental disorder. As the primary judge stated:
The primary judge assessed the appellant’s damages at $24,000, which comprised non-economic loss of $12,000; economic loss of $10,000; and medical expenses of $2,000 ([501]). The primary judge made a contingent finding that if s 3B(1)(a) of the Act were engaged, common law general damages of $15,000 would have been awarded ([447]).
Later in these reasons the facts will be set out in more detail to address grounds 2, 4, 5 and 6.
As referred to above, it was common ground that this question has not been answered by authority although allied questions have been addressed and, to some extent, answered by decisions of this Court, to which I will turn.
At about 4:40pm, Constable Alo called LSC Cashmere for additional police back-up because he believed that they would need to apprehend the appellant and take her to the hospital ([93]). LSC Cashmere was at Blacktown Police Station preparing for hand-over as his shift had started at 6am ([101]). On the way to the appellant’s residence, LSC Cashmere checked COPS for relevant entries. The primary judge summarised his evidence at [104]:
I am satisfied that while Mr Sexton would otherwise have made out the cross-appeal, the primary judge nonetheless correctly applied the principles of causation in [434] when his Honour found that the aggravation of the appellant’s mental disorder, PTSD, was the natural and probable consequence of the use of capsicum spray on the appellant. In these circumstances, the notice of contention ought be upheld and the cross-appeal dismissed.
It follows that it is necessary to address the grounds of appeal with respect to damages.
LSC Cashmere was the commanding officer on the scene ([461]).
In Madden, this Court held:
The significance of LSC Cashmere’s state of mind is to be assessed in light of the following matters.
As the primary judge recorded at [5], it was common ground that the State “would be vicariously liable for the conduct of the police officers who allegedly committed the tortious acts”. His Honour cited ss 8(1) and 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) (Vicarious Liability Act), which permit and regulate “police tort claims”. Those provisions do not speak of vicarious liability for “conduct”. Rather, s 8(1) is expressed to render the Crown, in certain circumstances, “vicariously liable in respect of the tort committed by a person”.
That statutory regime was considered in New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, where the High Court referred to two competing theories of vicarious liability. One was:
[1936] HCA 40
[1968] HCA 62
[2010] HCA 12
(2000) 49 NSWLR 78
(2011) 246 CLR 36
(2026) 100 ALJR 912
(2024) 283 CLR 45
(2016) 95 NSWLR 117
(2026) 100 ALJR 886
(2020) 103 NSWLR 658
(1936) 55 CLR 499
(2022) 108 NSWLR 285
(1987) 164 CLR 1
(1954) 92 CLR 190
(2006) 229 CLR 638
(2025) 99 ALJR 1362
(1968) 119 CLR 118
(2006) 227 CLR 423
(2007) 70 NSWLR 125
(2005) 65 NSWLR 168
(2024) 113 NSWLR 509
(2000) 54 NSWLR 536
(2017) 262 CLR 362
(2010) 240 CLR 537
(2016) 256 CLR 482
(2018) 98 NSWLR 1149
(2001) 208 CLR 388
(2002) 54 NSWLR 333
(1960) 108 CLR 158
(1965) 114 CLR 164
(1985) 155 CLR 448
(2015) 89 NSWLR 538
(1998) 196 CLR 1