Consideration
27 As should be clear by this point, it is common ground that if Pt VBA of the Wrongs Act applies to the applicant's common law claim for damages for non-economic loss, then the applicant is obliged to serve the respondent with a copy of a certificate of assessment with the accompanying information in conformity with s 28LT of the Wrongs Act. It is not in dispute that, but for s 28LC(2)(a) of that Act, Pt VBA would apply to that claim. The dispute between the parties is whether the claim falls within s 28LC(2)(a). If it does, as the applicant submits, then Pt VBA does not apply and the applicant is not required to serve a copy of a certificate of assessment in conformity with s 28LT in order to recover damages for non-economic loss.
28 Whether the applicant's common law claim for damages for non-economic loss falls within s 28LC(2)(a) depends on the proper construction of that provision and on [16A] to [16C] of the applicant's proposed pleading. The parties have proceeded on the basis that these paragraphs set out the applicant's claim in this regard, but disagree on how s 28LC(2)(a) should be construed.
29 As already stated, the applicant substantially relies on what was said about s 28LC(2)(a) in Thompson at [39]. To understand this paragraph properly, however, one must pay attention to the relevant facts of that case and the whole of the Court's reasons for judgment.
30 Mr Thompson ("the plaintiff") suffered injuries when he was stabbed by another prisoner in a State-run prison. He instituted proceedings against the State of Victoria, claiming damages in respect of his injuries, which he alleged were caused by the State's negligence and breach of statutory duty: Thompson at [1]. The State's defence included the proposition that the plaintiff was prevented from recovering damages for non-economic loss because the plaintiff had not complied with Pt VBA of the Wrongs Act. The primary judge held that the plaintiff's claim fell within s 28LC(2)(a) and that Pt VBA did not therefore apply. The judge ordered that the relevant part of the State's defence be struck out. The State appealed against this order: Thompson at [41].
31 The parties in Thompson "proceeded on the basis that the stabbing … was an intentional act … done with intent to cause death or injury": Thompson at [4]. The key issue for the Court of Appeal was whether, as the primary judge held, the plaintiff's claim against the State was "a claim where the fault concerned … relates to [the] intentional act that [was] done [by the fellow prisoner] with intent to cause death or injury" in accordance with s 28LC(2)(a): Thompson at [11] (emphasis added). The State submitted that the primary judge erred in his construction of s 28LC(2)(a), which, so the State argued, operated to exclude from Pt VBA only claims in respect of an intentional act committed by the person against whom the claim is made, that is, the State: Thompson at [13]-[14]. Of the State's case, the Court relevantly said (at [16]-[17]):
The defendant submitted that the words 'is, or relates to' [in s 28LC(2)(a)] do no more than make clear that s 28LC(2)(a) covers both claims in which the fault or act of the tortfeasor is an intentional act done with intent to cause injury; and claims in which the fault or act of the tortfeasor need not include any intention to cause injury - such as claims in battery, assault and false imprisonment - but to which an allegation of intention to cause injury may 'relate' so as to found an associated claim against the tortfeasor for exemplary damages.
While in its written case the defendant suggested that the words 'or relates to' may apply to claims involving the vicarious liability of a tortfeasor for the tortious acts of another who commits an intentional act that is done with intent to cause death or injury, in oral argument the defendant eschewed that suggestion.
32 After referring to the legislative history of Pt VBA and contrasting the language of s 28C(2)(a) in Pt VB ('where the fault concerned is an intentional act') with the language of Pt VBA ('where the fault concerned is, or relates to, an intentional act') at [30]-[35]), the Court said as follows (at [36]-[37]):
In our opinion, and again contrary to the defendant's submissions, the better view is that the words 'or relates to' were inserted into s 28LC(2)(a) as part of the Parliament's attempt to 'balance the rights of people to sue for personal injuries and the need for access to affordable insurance' as described in the second reading speech relating to the [Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic)].
The words 'relates to' are words of wide and general import. As has been said before, the precise ambit of the expression can only be discerned from the context in which it has been used. But in the present case as a matter of fact resulting from the application of the ordinary meaning of the words, the plaintiff's claim relates to an intentional act done with intent to cause death or injury.
(Citations omitted).
33 The Court held that the 'intentional act' to which s 28LC(2)(a) refers may be done by a person who is not the defendant, where the 'fault concerned is, or relates to' that intentional act, being an act done 'to cause death or injury': Thompson at [38]. The Court concluded that, in the circumstances of the case, "there was a sufficient nexus between the intentional stabbing of the plaintiff (done with intent to cause death or injury) and the plaintiff's claim", such that the exclusion in s 28LC(2)(a) was engaged and the provisions of Pt VBA were inapplicable: Thompson at [40]. The Court was fortified in its construction of s 28LC(2)(a) by the difference between the language of s 28LC(2)(a) and the equivalent provision, s 28C(2)(a), in Part VB (governing the assessment of personal injury damages). Section 28C(2)(a), as the Court noted, omitted the words "or relates to": Thompson at [32].
34 It is in this context that the passage in Thompson at [39] must be read. At [39] the Court stated:
We also reject the defendant's submission that claims in which the fault 'is' an intentional act are limited to intentional acts done with intent to cause injury (eg, Wilkinson v Downton [1897] 2 QB 57 and Bradley v Wingnut Films Ltd [1993] 1 NZLR 415) rather than claims where there may be an allegation of intention to cause injury (such as claims in battery, assault and false imprisonment). Such a construction would give too little work to the first limb of s 28LC(2)(a) ('the "is" limb') and cannot be justified having regard to the more limited terms of s 28C - containing as it does only the 'is' limb.
35 The significance of this passage is clear when account is taken of the context in which it appears in the Court's reasons. Prior to this passage, the Court had identified that the first part of s 28LC(2)(a) (a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury) covered two relevantly distinct situations, namely: a claim where the fault concerned is an intentional act done with intent to cause death or injury (as exemplified by Wilkinson v Downton [1897] 2 QB 57 ('Wilkinson v Downton')) and a claim where the fault concerned relates to an intentional act done with intent to cause death or injury (as in Thompson). It was not in dispute in Thompson that the stabbing was an intentional act done with intent to cause death or injury. The only issue before the Court was whether the words "or relates to" relevantly enlarged the scope of the provision to include the case in which a claim in tort for damages for non-economic loss was made against a defendant who had not done such an act but whose alleged negligence had created the risk of that act being done by another (in that case, another prison inmate). As the previous discussion of Thompson shows, the Court of Appeal held that it did. That is, having regard to the broad generality of the words "relates to", the provision was not limited to situations where the relevant intentional act was done by the defendant to the claim.
36 As indicated at [31] above, in the course of argument before the Court of Appeal, the State had submitted that the words 'is, or relates to' did no more than make clear that s 28LC(2)(a) covered both claims in which the act of the alleged tortfeasor was alleged to be 'an intentional act that is done with intent to cause death or injury' and claims in which the act of the alleged tortfeasor was not said to include an intention to cause injury but to which an allegation of intention to cause injury may "relate" so as to found an associated claim against the tortfeasor for exemplary damages. At [39] of its reasons in Thompson, the Court of Appeal specifically rejected this submission, on the basis that such a construction would unduly limit the 'is' aspect of this part of the provision. Rather, so the Court held, the words 'or relates to' extended the ambit of the provision so that it covered a claim in negligence that related to 'an intentional act that is done with intent to cause death or injury' (here, the stabbing by another prisoner). I therefore accept that, as the respondent in this case submitted, [39] was intended to reject the construction of s 28LC(2)(a) for which the State had contended, and not to diminish the significance of the 'intent to cause injury or death' element of the statutory criterion.
37 With the decision in Thompson in mind, one turns to the proposed new pleading between [16A and [16D] to determine whether, in making a claim for the recovery of damages for non-economic loss, the applicant has made a claim "where the fault … is, or relates to, an intentional act that is done with intent to cause death or injury", within s 28LC(2)(a) of the Wrongs Act. For present purposes [16B] and [16C] are particularly pertinent. [16D] can be put to one side since both parties agreed that this paragraph related to economic, not non-economic, loss.
38 Although the applicant's pleadings in these paragraphs might be better, [16B] indicates clearly enough that the applicant alleges that the facts and circumstances set out earlier in [12A(4)] and [12A(5)] constitute allegations that amount to allegations of tortious assault and battery on him, and false imprisonment of him. In particular, the applicant alleges:
(a) the physical contact inflicted upon [him] was direct, intentional, and caused him physical and psychological harm; and
(b) the isolation and seclusion of [him] was direct, intentional, and deprived him of his freedom of movement and personal liberty.
39 It is also clear enough that the applicant's pleading at this point is intended to cover the essential elements of the three alleged torts. For present purposes, these essential elements can be summarised as follows:
(a) Battery is constituted by the direct act, whether intentional or reckless, which makes or causes contact with another person's body, which is either harmful or offensive: Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 ('Campbell') at [513] citing Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15; 175 CLR 218 at 311 (McHugh J); see also Carter v Walker [2010] VSCA 340; 32 VR 1 ('Carter v Walker') at [215]. To establish the tort of battery, a complainant must prove, on the balance of probabilities, that: (1) the other person made direct contact with the plaintiff's body; (2) that this contact was intentional; and (3) the contact was harmful or offensive. No particular degree of force is required to establish the first element - the slightest contact is sufficient: compare Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 664; 380 ALR 1 at [41]-[49] (Gageler J). To establish the second element, the complainant must prove that the other person intended to make contact with the complainant's body but is not required to prove that the person intended to inflict injury or harm or that any actual harm that was in fact suffered was foreseeable: see Carter v Walker at [215]. The third element will be satisfied if the complainant shows that the conduct complained of was insulting or offensive or harmful in some way. "[O]nce battery is established, immediate harm and consequential damage are compensable": Carter v Walker at [215].
(b) Tortious assault without battery requires the complainant to prove, on the balance of probabilities, that there was on assault on him by the other person. An assault in this context is an act of intentionally creating in the victim an apprehension of imminent, harmful or offensive contact with their body: see generally Campbell at [513]; ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; 21 VR 559 at [16]; Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98 at 114. There is no requirement for actual physical contact. To establish tortious assault, the complainant must prove on the balance of probabilities that: (1) the other person, by words or conduct, threatened to inflict harmful or offensive contact upon the complainant and to do so immediately or imminently; (2) in making the relevant threat, it was the subjective intention of the other person that the threat would create in the complainant's mind an apprehension that it will be carried out immediately or imminently; (3) the threat created an apprehension in the complainant's mind that it would be carried out immediately or imminently; (4) the apprehension in the complainant's mind was reasonable when judged objectively; and this apprehension caused, injury, loss or damage to the complainant.
(c) The tort of false imprisonment is the intentional imprisonment, confinement or restraint of a person without legal justification: see, for example, Campbell at [431]-[433], citing Darcy v New South Wales [2011] NSWCA 413 at [141]-[145] and South Australia v Lampard-Trevorrow [2010] SASC 56; 106 SASR 331 at [282]. To establish this tort, the complainant must establish, on the balance of probabilities, that the other person: (1) intended to imprison, confine or restrain the complainant; (2) the imprisonment, confinement or restraint was against the complainant's will; (3) the imprisonment, confinement, or restraint was total; (4) as a result the complainant suffered loss and damage, being an infringement of liberty, generally but not always with other loss and damage: see Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740; 381 ALR 375 at [4]-[6] (Kiefel CJ and Keane J); [42] (Gageler J); and [45], [47], [122] (Gordon J). See further McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289; 20 VR 250 at [85]; Myer Stores Ltd v Soo [1991] 2 VR 597 at 599, 625; Watson v Marshall & Cade [1971] HCA 33; 124 CLR 621 at 626; Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152; and Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; 4 CLR 379 at 387.
40 Relevantly for present purposes, as the applicant's pleading recognises, each of these torts has an intentional element. In the case of battery, the other person must intend to make contact with the complainant's body; in the case of an assault, the other person must intend that the threat creates an apprehension in the complainant's mind that it will be carried out immediately or imminently; and in the case of false imprisonment, the other person must intend to imprison, confine or restrain the complainant. It was presumably for this reason that it was common ground that the applicant's claim was concerned with a fault that "is, or relates to, an intentional act", within s 28LC(2)(a) of the Wrongs Act. As Thompson confirms, however, the provision requires more than just this: the claim to which the provision applies must concern a fault that "is, or relates to, an intentional act that is done with intent to cause death or injury".
41 The focus of s 28LC(2)(a) is on the act and the intention of the person doing the act that is, or is related to, the fault giving rise to the claim: compare Croucher v Cachia [2016] NSWCA 132; 95 NSWLR 117 at [33]-[34] (Leeming JA, with whom Beazley P and Ward JA agreed). Wilkinson v Downton illustrates that in a 'Wilkinson' cause of action the fault giving rise to the claim will be an act done with intent to cause injury, because this is an element of such a cause of action. Further, as Thompson illustrates, s 28LC(2)(a) may be satisfied even though "the fault" giving rise to the claim is not an act involving an intention of this kind, providing the fault giving rise to the claim is related to intentional act that is done with intent to cause death or injury (such as the stabbing in Thompson's case).
42 Although an intention to do a requisite act is required in each case, none of the torts of battery, assault or false imprisonment require that a complainant establish that that act be done with "intent to cause death or injury". In consequence, this later element is not contained in the applicant's proposed new pleading at [16A]-[16C]. There was no express allegation to the effect that the claimed torts said to give rise to the claim involved any act "done with intent to cause death or injury". As Thompson explains, s 28LC(2)(a) only applies in a case where the fault giving rise to the claim "is, or relates to, an intentional act that is done with intent to cause death or injury". In consequence, the provision will not apply where that fault is, or relates to, an act of the kind forming part of a cause of action for tortious assault, battery or false imprisonment and no more. The applicant's submission, at [10] of his written submissions, that s 28LC(2)(a) of the Wrongs Act applies in his case because the actions of the respondent's "officers, employees and agents were intentional acts constituting claims of assault, battery and false imprisonment in which allegations of an intention to cause injury are contained" must be rejected.
43 I would also reject the applicant's further and alternative submission, in his written submissions at [11(k)], that s 28LC(2)(a) applies because "[i]t may be inferred … that the officers, employees and agents of the Respondent, by reason of their actions, intended to cause injury" to the applicant. This submission is, as the respondent noted in written submissions, not apparently borne out by subparagraphs 11(b), (c), (g) and (j) of the applicant's own submissions.
44 As the applicant implicitly acknowledges, the applicant's proposed pleading does not specifically allege a subjective or actual intention to cause injury on the part of the respondent's officers, employees and agents. The proposed pleading in [16B] alleges no more than "[t]he physical restraint, isolation and seclusion … constitutes assault, battery and false imprisonment of [the applicant]; in that:
(a) the physical contact inflicted on [him] was direct, intentional, and caused him physical and psychological ham; and
(b) the isolation and seclusion of [the applicant] was direct, intentional, and deprived him of his freedom of movement and personal liberty."
Specific incidents of isolation and seclusion are alleged or said to be documented at [12(4)], [12(4A)], [12(5)], [12(5A)]: see [16A]. In [16C] the applicant alleges merely that "[by] reason of the torts of assault, battery and false imprisonment committed by the employees, officers or agents of the Respondent as aforesaid, [the applicant] has suffered, and will continue to suffer, loss, injury and damage …", including for non-economic loss.
45 Further, there is no proposed pleading to the effect that any of the respondent's officers, employees or agents intended "in the amplified meaning given to intention" (see Carter v Walker at [170]) to cause death or injury by any of the acts the applicant alleges they did. That is, there is no allegation in the proposed pleading that these persons proceeded with "reckless indifference" or that their actions were "likely to have [an] effect" of injury or death: compare Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 at [11], [12] (McMurdo P) and [25] (McPherson JA); and Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 at [77]-[80] (Spigelman CJ).
46 Even if there were such an allegation in the applicant's proposed pleading, there would remain the question whether the words "intent to cause injury or death" in s 28LC(2)(a) of the Wrongs Act require an actual, subjective intent, with the consequence that intention in some amplified sense (whether subjective or objective) is not enough to engage the provision. Since neither party addressed this issue directly, it suffices to note that, after referring to SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (see at [15]-[17] (Kiefel CJ, Nettle and Gordon JJ), [32], [39], [42] (Gageler J) and [60] (Edelman J)), the New South Wales Court of Appeal held in Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294; 103 NSWLR 658 ('Dickson') that the same words used in a very similar provision of the Civil Liability Act 2002 (NSW) required a subjective or actual intention: Dickson at [8]-[9] (Basten JA); [19] (White JA); and [186] (Simpson AJA). An intent to cause injury could not be established by recklessness or foresight of an inevitable consequence of conduct or the like. These are, it seems, the kinds of concepts that the applicant seeks to rely on in [11] of his written submissions. Dickson indicates that these concepts are not appropriately used in determining whether s 28(2)(a) applies to the case at hand.
47 For the reasons stated, the applicant has failed to show that his claim falls within s 28LC(2)(a) of the Wrongs Act. As already stated, both parties proceeded on the basis that in this event the applicant would be obliged to provide a certificate of assessment and the accompanying information in accordance with s 28LT of the Wrongs Act. As already stated, an order was made by consent on 10 December 2020 that by 1 April 2021 the applicant:
(a) serve on the Respondent a certificate of assessment of degree of impairment accompanied by the prescribed accompanying information, in accordance with section 28LT of the Wrongs Act 1958 (Vic); and
(b) notify Registrar Gitsham that the certificate of assessment of degree of impairment has been served on the Respondent.
The applicant had a change of mind and did not comply with the order. The stated basis for the applicant's non-compliance has not been made out.
48 In these circumstances, the parties should have an opportunity to consult one another on the orders that they consider should now be made and to provide the Court with a minute of the orders they seek at this stage. I would therefore make orders with this object in mind.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.