State of New South Wales v Ouhammi

Court of Appeal (NSW)|2019-02-13|Before: Basten JA, Brereton JA

Background facts

The background facts are largely uncontroversial (although there are issues concerning the inferences to be drawn from the accepted facts). The respondent is a Moroccan national. He migrated to Australia in 1983, and is an Australian citizen. He was born in October 1957, and, at the time of his injury, was 54 years of age.
On 12 December 2011, during the day, the respondent was arrested by police officers in Bondi Junction. He was arrested because he was urinating in a public place. He was heavily intoxicated at the time and was unable clearly to identify himself. He was unsteady on his feet and incoherent. He was therefore taken to Waverley Police Station where he was placed in a "holding cell" (at times referred to as a "dock") and the door closed. The dimensions of the holding cell were not given in the evidence, but photographs and video footage would suggest that it was small, designed for the temporary detention of one, or at most two, persons. The door was of heavy perspex which opened outwards, and was able to be secured by a sliding bolt. The only furniture in the cell was a bench attached to the wall opposite the door. It appears that the bench was no more than one step in distance from the door. It was possible for police officers, from outside the cell, to observe what was happening inside the cell, and to communicate with persons therein.
The respondent initially sat on the bench. One of the arresting officers, Senior Constable Rhys Johnson, attempted, unsuccessfully, to communicate with him through the door in order to obtain his identification details. The respondent was unresponsive.
The respondent then lay down on the bench. Senior Constable Johnson attempted, again unsuccessfully, by checking with police records, to ascertain the respondent's identity. He then knocked on the cell door, calling to the respondent to wake up and identify himself. The respondent appeared to be asleep. He was snoring. He did not respond. Senior Constable Johnson partly opened the door, about 6-12 inches. He called to the respondent. At that point, as Senior Constable Johnson perceived it, the respondent was lying on the bench, facing towards the back wall. When Senior Constable Johnson called to the respondent, the respondent rolled over and: "… within two- to three seconds he's at his feet with both hands lunged at the door."

The proceedings at first instance

By Amended Statement of Claim filed on 18 February 2016, the respondent claimed damages for the personal injury he had suffered. He pleaded that, pursuant to s 5 of the Crown Proceedings Act 1988 (NSW), the applicant was vicariously liable for any tort committed by Senior Constable Johnson. That the applicant is so liable was not, and is not, in issue.
The pleading of the statement of claim had some unusual features. It pleaded: "8. The Plaintiff's injury loss and damage were caused by the tortious conduct of the Defendant, by its servants or agents for which it is directly or vicariously liable." It then particularised the "tortious conduct" as: "9. The closing or slamming of the door to the dock upon the Plaintiff's thumb constituted an assault and battery. 10. In the alternative the slamming of the door to the dock upon the Plaintiff's thumb constituted an act of negligence."
The asserted negligence was further particularised as: "11. Shutting or slamming the door to the dock upon the Plaintiff's thumb. 12. Shutting or slamming the said door without having any proper regard for the safety of the Plaintiff. 13. Failing to observe the Plaintiff's hand or thumb was in the doorway at the time of shutting the said door. 14. Using unnecessary force to close the said door."
Further particulars, pleaded alternatively, that the door was not safe for use because it had a sharp edge capable of catching and severing the tip of a finger, and that, because the respondent was behaving erratically and exhibiting obvious signs of mental health problems, he should not have been confined in the cell but should have been conveyed to a mental health facility, were abandoned at the hearing.
The respondent claimed compensatory, and aggravated and/or exemplary damages.
The applicant filed a Defence. It admitted that it was vicariously liable for any tortious conduct of Senior Constable Johnson. It admitted some, and took issue with others, of the facts pleaded by the respondent. It raised, by way of defence, a number of specific provisions of the Civil Liability Act 2002 (NSW) ("the CLA"):

it asserted that, pursuant to ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the LEPRA"), Senior Constable Johnson, in closing the door of the cell, used such force as was reasonably necessary to exercise his functions and duties, specifically, to prevent the escape of the respondent after arrest or to prevent the respondent from causing injury to Senior Constable Johnson or any other person;
it asserted that, in closing the door of the cell, Senior Constable Johnson acted in self-defence both at common law and pursuant to s 52 of the CLA, and that Senior Constable Johnson's conduct in closing the door was a reasonable response, and that, even if Senior Constable Johnson's response were not found to have been reasonable, s 53 of the CLA either precluded, or limited, the damages that may be awarded;
it asserted that the conduct of the respondent constituted a serious offence which contributed materially to his injury, thus, by reason of s 54 of the CLA, disentitling him to an award of damages;
it asserted that the respondent was intoxicated to the degree that his capacity to exercise reasonable care and skill was impaired, and that his intoxication contributed to his injury, thus disentitling him, in accordance with s 50 of the CLA, to an award of damages.

Finally, the applicant asserted that the respondent was guilty of contributory negligence by reason of which any damages to be awarded should be reduced in accordance with Pt 1A Div 8 of the CLA.
The trial commenced on 14 March 2017 and proceeded over the following four days. The respondent gave evidence. He had only minimal recollection of the events of 12 December 2011. A psychiatrist, Associate Professor Michael Robertson, provided a report and gave evidence in his case. In the defence case, evidence was given by Senior Constable Johnson and two other police officers who had been present at the Waverley Police Station at the time of the events. The material parts of Senior Constable Johnson's evidence have been extracted above.
As can be seen from the outline of the matters raised by the applicant in defence, the application of the CLA was critical to the proceedings. Proper assessment of the respondent's claim depended on whether it was subject to the CLA. Much of the defence depended upon provisions of the CLA. Section 21 of the CLA, if it applied, precluded any award of exemplary or aggravated damages as claimed by the respondent. It is clear from the submissions of the parties, both written and oral, at trial, that an important preliminary issue arose concerning whether the CLA did in fact apply. That issue arose because of the provisions of s 3B, which relevantly are as follows: "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) … (i) … (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) …"
It was the respondent's case that the slamming of the door by Senior Constable Johnson on his thumb was: "… an intentional act … done by [Senior Constable Johnson] with intent to cause injury …" and that, therefore, the defences invoking provisions of the CLA pleaded by the appellant (other than those invoking Pt 7, in which ss 52, 53 and 54 appear) were inapplicable.
Whether the CLA applied depended on whether the respondent was correct in his contention that Senior Constable Johnson's act in closing the door of the cell was "an intentional act … done by [him] with intent to cause injury …" to the respondent.
The applicant specifically argued at trial, in written submissions, that the CLA did apply. On behalf of the respondent it was argued that, on the interpretation given to s 3B(1)(a) in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132, it was not necessary, for that provision to apply, that the respondent establish that Senior Constable Johnson intended "to cause the level of harm that he did", but that, on the facts: "It is apparent that Officer Johnson intended to cause some force to the person of the Plaintiff in forcing the door closed. It matters not that he may only have intended to force [the respondent] back into the cell to the extent that he apprehended him to be trying to exit the cell. He was deliberately applying force to the Plaintiff and 3B is engaged."

The primary judgment

The primary judge opened his judgment by saying: "Both parties agreed that if the Court was to find conduct of an intentional tort being battery, then the [Civil Liability] Act does not apply. If the Act does apply, then there are a number of matters that need to be considered and those defences are set out in the defence filed on behalf of the defendant." [The applicant denies any agreement in the terms recorded.]
The primary judge then recounted the facts and circumstances of the respondent's arrest. He found Senior Constable Johnson's evidence to be "selective", by which he appears to have meant that Senior Constable Johnson gave his evidence after viewing the CCTV footage, and that his evidence was "consistent" with that footage. I take this to be a reflection on Senior Constable Johnson's reliability, although short of rejection of his evidence. The primary judge found that what Senior Constable Johnson had said to the respondent prior to slamming the door was "unclear".
He found that, at the time the respondent was in the police station while his identity was unknown, he had not demonstrated any signs of possible criminal behaviour or violence. He found: "[17] … A number of options were open to the officer before he shut the door rather than closing the door. I find that the Constable did not consider the possibility of injury to the plaintiff when he closed the door quickly and without warning."
The primary judge did not make any clear finding concerning Senior Constable Johnson's state of mind or what he perceived the situation to be. Certainly, he did not explicitly reject Senior Constable Johnson's evidence that he feared that the respondent might attempt to escape or, alternatively, assault him or somebody else in the police station. On one reading of the judgment, the primary judge may have considered that, to the extent that any such fear was held, it was not reasonably based upon the relevant facts, which were that, since being detained in the cell, the respondent had shown no signs of criminal behaviour or violence. The primary judge does appear to have taken a less than favourable view of Senior Constable Johnson's evidence that the respondent had shown some signs of violence earlier, at the scene of the arrest.
He did not elaborate on what the alternative options to which he alluded in [17] were. He found: "[18] In absence of any direction, it would appear that the Constable has reacted in response to what he perceived, but without making any allowance or giving any direction to the plaintiff who was now asleep. It would be possible, and I find most likely, that the plaintiff was disturbed from his sleep where he was snoring, and suddenly responded towards the door which had opened at that particular time. I am unable to find that there was any intent by the plaintiff to escape from the dock, nor was there any attempt by him to assault Constable Johnson, or anyone else in the charge room indeed … … [20] … The first issue is whether or not there was an assault or battery in respect of the actions by Constable Johnson in closing the door of the dock on the plaintiff. I find that there was a form of trespass to the person of battery, and that battery was caused by the negligence of the officer in failing to give direction to the plaintiff to remove his hands or any part of his body away from the door that he was closing. That being so, having found that there was a battery caused by the negligent physical contact between the edge of the door and the door jamb, there was injury …" (italics added)
In the light of those findings, he considered it unnecessary to embark upon a consideration of the respondent's separate claim in negligence. Nor did he consider any of the statutory defences pleaded on behalf of the appellant, nor the common law defence of self-defence.
The final issue to which his Honour turned his attention was the claim for exemplary or aggravated damages. In that context, he said: "[34] … This was a matter where an officer did not deliberately, as I have found, seek to cause injury to the plaintiff. It was a matter where he simply failed to consider the position of the plaintiff, his condition being affected by alcohol and possibly mental illness at that time, and failed to issue a demand to him. And for that reason I do not think that this is a case that calls for either of those two heads of damage."
He then proceeded to award damages on common law principles, resulting in the award already mentioned of $82,000. The award was made up of $80,000 for general damages, and $2,000 for future out of pocket expenses.

The grounds of appeal

The proposed grounds of appeal are set out in an Amended Draft Notice of Appeal. The grounds take issue with a number of the primary judge's findings of fact, and, perhaps more particularly, with the emphasis placed upon those facts and the inferences drawn therefrom. Of more present importance, specific complaint was made in the following terms: "1 Making a finding of 'battery by negligence' by Senior Constable Rhys Johnson … … 2 Failing to consider or make findings as to whether SC Johnson acted reasonably in closing the door of the cell in the way that he did, including as to his state of mind at the time of the risk associated with not doing so. … 4A Failing to correctly apply the onus of proof on the claim based on battery. 4B Finding negligence on a basis which had not been pleaded. 5 Failing to consider and to apply the following defences to the claim: (a) contributory negligence; (b) common law self-defence; (c) s 50 of the [CLA] … which excludes damages where a claimant (in this case, the Respondent) is intoxicated; (d) s 52 of the [CLA] which excludes damages where the conduct of the injured person (in this case, the Respondent) was unlawful and the other person (in this case, SC Johnson) acts in self-defence; (e) s 54 of the [CLA] which excludes damages if the Court is satisfied that the injury occurred at the time of, or following, conduct that, on the balance of probabilities, constituted a serious offence and the conduct contributed materially to the injury; and (f) Lawful justification. 6 Failing to assess damages as modified under the [CLA]." I assume that par 5(f) is intended to invoke ss 230 and 231 of the LEPRA.
A challenge was also made to the quantification of damages. That challenge was to the assessment of damages at common law. Assessment ought to have been, it was asserted, under the CLA, with the restriction on the damages that may be awarded for non-economic loss provided in s 16.

A preliminary matter

It appears that the primary judge took the view that, because he found that there had been "a form of trespass to the person of battery", there had been an "intentional tort", and, therefore, the CLA did not apply. It may be assumed that that view derives from s 3B of the CLA, set out above.
This was an incorrect approach. The question for determination with respect to s 3B is not whether there is an "intentional tort"; it is a two limbed question, focused, first, on whether the act or conduct the subject of the proceedings (as distinct from any tort said to be constituted by the act or conduct) was intentional, and, second (and importantly) was done with intent to cause injury or death: see White v Johntson (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132].
In the light of the primary judge's explicit finding, in the context of rejecting the respondent's claim for exemplary or aggravated damages, that Senior Constable Johnson did not "deliberately … seek to cause injury to the [respondent]", s 3B could not and did not operate to exclude the CLA. That means that the respondent's claim (and the statutory defences pleaded by the applicant) were governed by the provisions of the CLA, and ought to have been determined accordingly.
Curiously enough, no ground of appeal asserts error in this respect. Nor is s 3B mentioned in the written submissions of the applicant. Yet the issue was raised and discussed at trial. It was also the subject of debate in the hearing before this Court. The inevitable result of the finding that Senior Constable Johnson did not intend to cause injury to the respondent is that it was an error for the primary judge to conclude (as he apparently did) that, once he had found the tort of battery, s 3B(1)(a) of the CLA operated to exclude the application of its other provisions (or some of them). He therefore failed to consider no fewer than four of the statutory defences pleaded by the applicant (that is the defences provided for by ss 50, 52, 53 and 54). Further, even if s 3B(1)(a) had, as he appears to have thought, the effect of excluding the application of some of the CLA provisions, that exclusion did not extend to the defences raised under Pt 7 - that is, ss 52, 53 and 54 defences. He also failed to consider the partial defence of contributory negligence, and the issues that arise under ss 230 and 231 of the LEPRA. Perhaps the most fundamental error was the failure to consider the question of negligence in accordance with s 5B of the CLA. Given that the primary judge found that the battery was "caused by negligence", the question of negligence under the CLA could not be avoided. Section 5A of the CLA provides: "5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. "Negligence" is defined in s 5 as "failure to exercise reasonable care and skill".
Section 5B provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Error in the primary judgment is thus established. Because of the amount in issue, it remains necessary that the applicant establish a basis on which it ought to be granted leave to appeal. The applicant contended that a "fundamental injustice" had occurred, that a critical matter in issue (the reasonableness of Senior Constable Johnson's conduct in closing the cell door) had been dealt with in "an unsatisfactory and impractical way" and in "a manner not properly open", and that an issue of principle (concerning the onus of proof in a claim for the tort of battery) in respect of which conflicting views had been expressed by a former President of this Court and a former Chief Justice of the High Court, and that there is a public interest in claims involving NSW Police Force officers.
The respondent opposed the grant of leave, relying on well-known and frequently stated principles to the effect that, before leave will be granted, an applicant must demonstrate more than merely arguable error, and show that some issue of principle is involved: see, for example, Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.
This is a case in which, in my opinion, leave to appeal ought to be granted. The erroneous approach taken by the primary judge infected the procedure from beginning to end. The applicant was deprived of a trial according to law of the issues identified in the pleadings.
It is also apparent that the primary judge did not appreciate the issue concerning the onus of proof, although, as that was an error that favoured the applicant it is not one that calls for further consideration in these reasons. The onus of proof is discussed below. Nor did the primary judge address the defences under ss 230 and 231 of the LEPRA.
For the same reasons, the judgment, having resulted from an erroneous approach to the application of the CLA, cannot stand.
Section 75A of the Supreme Court Act provides that, where the decision under appeal has been given after a hearing, the appeal is by way of re-hearing. This Court is given the powers and duties of (in this case) the District Court, including, relevantly, the power of drawing inferences and making findings of fact and the assessment of damages. By sub-s (10) this Court has the power to make any finding or assessment, to give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.
Given that there is little dispute concerning the basic facts, it is appropriate that this Court proceed to determine the issues that ought to have been determined at first instance. In undertaking that task, it is appropriate to maintain, so far as possible, the assessments made by the primary judge, bearing in mind "the subtle influence of demeanour" and the advantage enjoyed by the primary judge in seeing and hearing the witnesses as they gave their evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47. It is also appropriate to bear in mind any challenges to those assessments made by the applicant.

Battery

Because the argument touched on the legal principles relevant to the tort of battery, it is necessary to say something about those principles, although this can be done briefly. The physical element of the tort is constituted by direct physical contact with the plaintiff by the defendant. The contact may be effected by the body of the defendant or an instrument or object: Darby v Director of Public Prosecutions (2004) 61 NSWLR 558; [2004] NSWCA 431 at [71]. The act is tortious if the defendant fails to prove that he or she was "utterly without fault". These concepts derive from Weaver v Ward (1616) Hob 134; 80 ER 284; Blacker v Waters (1928) 28 SR (NSW) 406 at 410. They have been repeatedly adopted: McHale v Watson (1964) 111 CLR 384 at 388; [1964] HCA 64 (affirmed on appeal at McHale v Watson (1966) 115 CLR 199; [1966] HCA 13); Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 at [47] and, perhaps most recently, Croucher; see also the judgment of Brereton JA in Brighten v Traino [2019] NSWCA 168 at [143].
Accordingly, once it was established, as it indisputably was, that Senior Constable Johnson had caused the cell door to come into contact with the respondent's hand or thumb, the onus lay on the applicant to establish that it was caused "utterly without fault" on the part of Senior Constable Johnson.
In Croucher, Leeming JA (with whom Beazley P and Ward JA agreed) reviewed the principles relevant to the tort of battery. He said: "22 Although battery is an intentional tort, a battery may occur when the defendant is merely negligent." He cited Williams v Milotin (1957) 97 CLR 465 at 474; [1957] HCA 83, where it was held that the facts of the case were capable of fulfilling the requirements of a cause of action in either battery or negligence.
There was no ground of appeal that directly challenged the proposition that, where direct physical contact is proved, the onus lies on the defendant to establish that it was committed without fault. It appears that the applicant's legal representatives had communicated with the Registrar of this Court, advising "that there may be a challenge" to the decisions in Blacker and Croucher, presumably with the intention of suggesting that an enlarged Bench be constituted to reconsider that question. There being no ground of appeal that made such a challenge, the Court declined to order an enlarged Bench.
There were, however, hints (without any clear contention) in the applicant's written submissions to the effect that Blacker and Croucher ought not to be followed. After referring to Croucher, the submissions described the proposition for which Blacker and Croucher stand as "a matter of debate". The submissions then referred to Fowler v Lenning [1959] 1 QB 426 (in which Diplock J discussed at length a number of issues, including onus of proof); to the judgment of Gibbs CJ in Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84, expressing a preference for the approach taken in Fowler ; and to a judgment of Kirby P in Platt v Nutt (1989) 12 NSWLR 231. It may be noted that no other Justice in Hackshaw adopted the tentative views expressed by Gibbs CJ, and the judgment of Kirby P in Platt was a dissenting one. The position in NSW is, therefore, that the test stated in Blacker and subsequently affirmed (inter alia, in Croucher) remains operative. Once it was established that Senior Constable Johnson had caused the cell door to close on the respondent's thumb, the onus shifted to the applicant to disprove fault.
The applicant's submissions then moved to the finding of "battery by negligence"; it will be remembered that the primary judge had found that the negligence consisted in Senior Constable Johnson's failure to warn the respondent or to direct him to remove his hand from the vicinity of the door. The first attack may be disposed of quickly. It was that "failure to warn could only be relevant to a claim made in negligence". That may be correct, but, as was held in Croucher, battery may be committed negligently, and that was what the primary judge found. Failure to warn, if established, was a relevant consideration.
The second attack was that, although the Amended Statement of Claim pleaded both battery and negligence (in the alternative), the particulars upon which the respondent relied did not include a failure to warn. In my opinion, the particular numbered [12]: "… without having any proper regard for the safety of the Plaintiff" is sufficient to encompass failure to warn the plaintiff to get out of the way of the closing door.
I would therefore reject these somewhat technical arguments. What is necessary to consider is whether the primary judge was in error in finding that Senior Constable Johnson acted negligently; more accurately, whether, applying the provisions of the CLA, the injury to the respondent was shown by the applicant to have been caused "utterly without fault" on the part of Senior Constable Johnson.

Negligence

As set out above, it was (and in this Court, in the exercise of the powers conferred by s 75A, is), for the applicant to prove that Senior Constable Johnson was not negligent, that is, that he did not fail to exercise reasonable care and skill. The respondent's case was that the applicant failed to discharge that onus. On the findings of the primary judge (which the respondent sought to support), the negligence of Senior Constable Johnson arose out of his failure to take reasonable precautions against a risk of harm that was both foreseeable and not insignificant. Negligence in that sense is to be determined by reference to s 5B of the CLA. Section 5B does not create rights or impose liabilities; it does no more than cast light on one particular means by which negligence is commonly sought to be established.
The difficulty with the application of s 5B in this case is that its structure (framed as it is in the negative) reflects the most common position that the onus of proving negligence lies on the plaintiff. Applying its provisions where the onus lies on the defendant to prove the absence of negligence requires some linguistic gymnastics. But there is nothing in the language of the section that suggests that it was intended to change the longstanding approach to the tort of battery, including where the onus of negativing fault lies, nor that such a change was in any way contemplated.
The risk of harm, in this case, was the risk that the respondent might suffer personal injury by Senior Constable Johnson closing the cell door. The applicant could have proved the absence of negligence on the part of Senior Constable Johnson by proving that the risk was not foreseeable, or (ignoring the double negatives) that any risk that existed was not significant; or that, in the circumstances (and having regard to the further elucidation in sub-s (2) of s 5B) a reasonable person in the position of Senior Constable Johnson would not have taken the precautions proposed. It could hardly be said (and was not argued) that the risk of injury to the respondent was not foreseeable; nor could it be said (and was not argued) that the risk was insignificant. The pertinent question is whether a reasonable person in Senior Constable Johnson's position would have taken precautions against the risk.
The obvious starting point is to ask "what precautions"? The primary judge's answer was - give the respondent a warning or direction to remove his hand from the vicinity of the door.
The argument advanced on behalf of the applicant was, essentially, that it was impractical for Senior Constable Johnson to have given any warning to the respondent in the very short time frame in which the relevant events occurred. That is most clearly illustrated by the CCTV recording of what took place, which I have watched a number of times.
The applicant argued: "3.16 … (c) No more than about 5 seconds passed between SC Johnson opening and closing the door … in finding that a warning should have been given, his Honour failed to have regard to the limited window of opportunity available to SC Johnson to give such a warning. His Honour also failed to have regard to SC Johnson's evidence that at the time he closed the door, he did not have time to think about other options that may have been available … (d) SC Johnson had attempted to speak to the Respondent and had knocked on the cell door before opening it but the Respondent had not reacted or responded. There was no utility in giving any direction before the door was opened. If the direction was given after opening the door it would have been impossible for the door to have been closed before the Respondent had the opportunity to push it open. That is, the warning would inevitably have meant that the Respondent would have had the opportunity to escape."
On behalf of the respondent it was submitted: "There was at the very least a casual act of negligence by Officer Johnson in slamming the door upon the Respondent's hand with such force as to effectively sever [sic] part of his thumb. There was an obvious foreseeable risk of injury that was a matter of common human experience. Given that Officer Johnson perceived the Respondent to be commencing a movement to exit through the ajar door of the dock area, a reasonable person in his position would have apprehended the risk that some part of the Respondent's body could have been injured in a rapid closing of that door. That risk of harm could easily have been avoided with due care. There was no imperative to force the door back upon the Respondent, and even if that proposition is in doubt there was no need to use the level of force that clearly was used." Just what steps could have been taken to have avoided the risk of harm was not spelled out in the submissions.
Not without hesitation, I have come to the view that the applicant has disproved negligence; it has proved that, in the circumstances that applied, a reasonable person in the position of Senior Constable Johnson would not have taken the only precaution it is proposed that he could and should have taken, that is, giving a warning or direction to the respondent before closing the door (which he did with some force). Senior Constable Johnson had minimal time in which to make the assessment of the risk of injury to the respondent and to consider any means of avoiding that risk eventuating. It is not clear (and there was no finding) that Senior Constable Johnson knew, when he reacted to the respondent's sudden movement, that the respondent's hand was in or near the door jamb. Senior Constable Johnson had no time to reflect on what he could do to prevent the apprehended exit of the respondent from the cell, other than closing the door, which he did with some force and speed. Indeed, given the speed with which events occurred, it is entirely possible that, at the moment Senior Constable Johnson began the movement of closing the door, the respondent's hand was not in the dangerous position in which it was caught.
In considering this question, I have derived some guidance from the judgment of this Court in Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791. In that case, a group of (presumably young) men, of whom Mr Broughton was one, sought refuge in a fast food outlet in the city, fearing serious attack with knives by another, larger, group of men. The assistance they sought was refused by a security guard who physically ejected them from the premises. Their fears of attack were realised and Mr Broughton was injured. He sued the occupiers of the premises and the security guard, alleging negligence. The trial judge found against him on the basis that the defendants owed no duty of care to him. His finding was upheld on appeal. There are passages in the reasoning of both Brownie AJA (who delivered the principal judgment) and Hodgson JA that are here pertinent.
Brownie AJA said: "29 Assuming that the respondents owed [Mr Broughton] a duty to take reasonable care for his safety, and not to eject him there and then, I do not accept that they breached that duty. The duty was to act reasonably, and a reasonable consideration of the position required the respondents to weigh up not only the duty they owed to the appellant, but also the duties that they owed to their employees working in the premises, and to the patrons who were then present, or coming into or out of the premises; and these duties might have suggested competing answers, for example if the larger group had sought to follow the smaller group inside. 30 [The security guard] acted spontaneously, in difficult circumstances. He had no opportunity to consider the position carefully, or take instructions or advice from his superior, or from the respondents, or from some lawyer, as to how these different duties might be reconciled, and, indeed, many if not most lawyers, asked to give advice on the question, would feel a need to give careful consideration to the problem. If he had considered how he should weigh up the various competing duties, a decision to give priority to the duties owed to the respondents' employees, or their patrons, is not one that could immediately be labelled as negligent."
Hodgson JA said: "13 In my opinion, such a person [as the security guard] would have appreciated that there was a group outside with knives threatening the plaintiff and his friends, and that there was a substantial probability of severe harm to [Mr Broughton] and/or his friends if they were ejected. However, in my opinion such a person would properly have regarded his or her primary responsibility as being owed to staff and customers. In the heat of the moment, it would have been difficult for such a person to make an accurate assessment of the probability of the group outside attempting to enter the premises, of whether and/or how this could be prevented, of what might happen in that event, and of how all the opposing considerations properly balanced out. On calm reflection and with the wisdom of hindsight, I am inclined to think the right response would have been not to eject [Mr Broughton] and his friends; but I am not satisfied that the ordinary reasonable person would have appreciated this in the heat of the moment. Accordingly, subject to one further question, [Mr Broughton] has not established a breach of any duty of care by reason of his being ejected from the respondent's premises."
That reasoning is an echo of the reasoning of Street CJ in Leishman v Thomas (1957) 75 WN (NSW) 173, quoted in the applicant's submissions in reply. His Honour said: "It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise." (at 175)
Senior Constable Johnson's evidence, which was not expressly rejected, was to the effect that, on his perception, the respondent posed some risk either to himself or to others in the police station, as well as a risk of escape. He had minimal time in which to weigh up the severity of that risk, and the likelihood of the respondent acting in a violent or aggressive manner. In perceiving the risk, he acted virtually instinctively. I am not persuaded that a reasonable person in his position would have acted otherwise, and, specifically, I am not satisfied that such a person would have taken time to issue a caution or direction to the respondent before closing the door.
In coming to this view I have had regard to what can be perceived on the CCTV footage. Although I would not conclude, from that observation, that the respondent intended to attempt to escape, and certainly would not conclude that he intended any violence or assault, his movement was sudden and his intention unpredictable. In "the heat of the moment", to adopt the words of Hodgson JA in Broughton, Senior Constable Johnson's response was unsurprising and explicable.
In my opinion the applicant has discharged the onus of proving that the injury to the respondent was without negligence on the part of Senior Constable Johnson. The primary judge was, therefore, in error in finding that his act in closing the door on the respondent's thumb was a (tortious) battery. On this basis, leave to appeal should be granted, the appeal should be allowed and the orders of the primary judge set aside. The applicant having agreed to pay the costs in any event, no question of costs arises.
The orders I propose are: 1. Leave granted to appeal. 2. The applicant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days. 3. Appeal allowed. 4. Set aside the orders made by the District Court on 6 June 2018 and in their place: (i) order that the amended statement of claim be dismissed; and (ii) order the defendant to pay the plaintiff's costs. 1. The applicant pay the respondent's costs in this Court.

Endnotes

Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B.
District Court Act 1973 (NSW), s 127.
Judgment, p 1, par 1. (The parties helpfully numbered the paragraphs in the typescript judgment.)
Judgment, p 7, pars 20 and 22.
Judgment, p 11, par 34.
Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111 at [10]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [131], [132] (Leeming JA); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [33] (Leeming JA); Fede v Gray [2018] NSWCA 316 at [191].
C Sappideen and P Vines (eds) Fleming's the Law of Torts (10th ed, 2011, Law Book Co) at [2.10]; see also J G Fleming, The Law of Torts (9th ed, 1988, Law Book Co) at pp 15-16.
10th ed at [2.20]; 9th ed at p 24.
See Weaver v Ward (1616) Hob 134; 80 ER 284.
(1957) 97 CLR 465; [1957] HCA 83.
Williams at 469.
Williams at 470.
Williams at 474.
(1964) 111 CLR 384; [1964] HCA 64.
McHale at 387-388.
(2006) 226 CLR 442; [2006] HCA 37 at [47]; see Croucher v Cachia at [25].
D Ipp et al, Review of the Law of Negligence: Final Report (2002, Commonwealth), par 1.28; recommendation 2.
Tcpt, 15/03/17, p 71(25).
Judgment, p 5, par 16.
Judgment, par 15.
CA Tcpt, p 44(42).
Tcpt, p 204(48); CA Tcpt, p 67(43).
Judgment at [18].
Judgment at [17]-[20].
White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132] (Leeming JA); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [33] (Leeming JA); Dean v Phung [2012] NSWCA 223 at [10] (Basten JA).
See CLA s 16(3).
CLA s 16(4).
Other pleaded defences, under CLA s 52 (self-defence) and s 54 (illegality), and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") ss 230 and 231 (lawful justification), were not developed before this Court. It suffices to observe that CLA s 52 was not engaged because the relevant conduct of the respondent was not unlawful; s 54 was not engaged because no criminal conduct of the respondent materially contributed to his injury; and LEPRA ss 230 and 231 were not engaged, because objectively judged, the force used by SC Johnson was not reasonably necessary.
That definition is based on R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts, 21st ed ("Salmond"), p 120; see also Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21] (Leeming JA, with whom Beazley P and Ward JA agreed), and Eisener v Maxwell [1951] 1 DLR 816 at 823 (which was reversed [Eisener v Maxwell [1951] 3 DLR 345], but without affecting the definition of "battery"). Other definitions, which include in the definition fault elements of intention or negligence, fail to reflect the position that, as explained below, neither is an element of a plaintiff's cause of action. For reasons which will appear, it is helpful to recognise that the defences may be subdivided into those of "justification" and that of "excuse".
See Salmond, p 127; Salmond also includes reasonable chastisement pursuant to parental or other authority, which would no longer be applicable due to statutory measures.
See Salmond, pp 127, 135-7.
See [15] above.
J Fleming, The Law of Torts, 10th ed at [2.20]; 9th ed at p 24.
(1616) Hob 134; 80 ER 284.
See Blacker v Waters (1928) 28 SR (NSW) 406 at 410 (Street CJ, with whom Ferguson and James JJ agreed); McHale v Watson (1964) 111 CLR 384 at 388; [1964] HCA 64 (Windeyer J); Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [24]-[25] (Leeming JA); Brighten v Traino [2019] NSWCA 168 at [143].
(1616) Hob 134; 80 ER 284.
(1680) T Raym 421; 83 ER 220.
(1681) T Jo 205, 84 ER 1218.
(1803) 3 East 593; 102 ER 724.
(1803) 3 East 593 at 599; 102 ER 724.
(1803) 3 East 593 at 599; 102 ER 724.
W Holdsworth, A History of English Law, vol 8, pp 453-456. The text continues to explain that this position was modified by Holmes v Mather (1875) LR 10 Exch 261 and then Stanley v Powell [1891] 1 QB 86, which are discussed below.
(1832) 5 Car & P 372; 172 ER 1015.
(1842) 3 QB 919; 114 ER 761.
See also note (a) to Ball v Axten (1866) 4 F & F 1019; 176 ER 890 at 891.
(1866) 4 F & F 1019; 176 ER 890.
(1875) LR 10 Exch 261.
(1875) LR 10 Exch 261 at 267-269.
(1875) LR 10 Exch 261 at 269.
[1959] 1 QB 426 at 436, 439. This analysis had its origin in observations of Blackburn CJ in Fletcher v Rylands (1866) LR 1 Exch 265 at 286-287 (affirmed by the House of Lords in Rylands v Fletcher (1868) LR 3 HL 330). See also Venning v Chin (1974) 10 SASR 299 at 312-315.
[1891] 1 QB 86.
Cited as authority for this proposition by Bray CJ in Venning v Chin (1974) 10 SASR 299 at 310.
[1891] 1 QB 86 at 89.
[1891] 1 QB 86 at 92.
[1891] 1 QB 86 at 91.
[1891] 1 QB 86 at 93.
[1892] P 419 at 428-429.
[1892] P 419 at 432 (Fry LJ), 434 (Lopes LJ).
[1892] P 419 at 434.
[1951] 2 KB 861.
[1959] 1 QB 426 at 439.
[1965] 1 QB 232.
[1963] VR 621.
(1928) 28 SR (NSW) 406 at 409-410.
(1937) 57 CLR 1 at 12; [1937] HCA 5.
(1938) 59 CLR 219 at 225; [1938] HCA 14.
(1957) 97 CLR 465; [1957] HCA 83.
(1957) 97 CLR 465 at 470.
(1957) 97 CLR 465 at 474.
(1964) 111 CLR 384; [1964] HCA 64.
[1963] VR 621 at 622.
(1964) 111 CLR 384 at 388-389. The decision was affirmed on appeal at McHale v Watson (1966) 115 CLR 199; [1966] HCA 13, but as Menzies J pointed out (at 216), Windeyer J's ultimate conclusions did not rest on his decision on the onus of proof, and in the Full Court it was conceded that there was no intentional trespass and that the respondent was therefore, on the authority of Stanley v Powell and Fowler v Lanning, entitled to the judgment in his favour if there were no negligence.
(NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported); cited in Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [23].
(1964) 111 CLR 384 at 389; see [89] above.
(1974) 10 SASR 299.
(1974) 10 SASR 299 at 308.
(1974) 10 SASR 299 at 310.
(1974) 10 SASR 299 at 316.
See [85] above.
(1974) 10 SASR 299 at 314.
(2010) 32 VR 1; [2010] VSCA 340 at [215].
(1937) 57 CLR 1 at 12, see [81] above.
(2010) 32 VR 1; [2010] VSCA 340 at [215].
[1983] 1 VR 153 at 157-159.
(2006) 226 CLR 442; [2006] HCA 37 at [47]. As Leeming JA observed in Croucher v Cachia (at [25]), although Gummow J dissented in the result, that statement of principle was uncontroversial.
(2016) 95 NSWLR 117; [2016] NSWCA 132 at [23].
(2016) 95 NSWLR 117; [2016] NSWCA 132 at [24].
(2016) 95 NSWLR 117; [2016] NSWCA 132 at [26].
(2016) 95 NSWLR 117; [2016] NSWCA 132 at [25].
In Hackshaw v Shaw (1984) 155 CLR 614 at 619; [1984] HCA 84, Gibbs CJ expressed a tentative preference for the approach taken in Fowler v Lanning, but no other Justice did so; and in Platt v Nutt (1989) 12 NSWLR 231 at 240, Kirby P (as his Honour then was) also favoured the Fowler v Lanning approach, but in a dissenting judgment.
See the passage cited from Fifoot, at [84] above.
As appears from his Honour's observations in Nickells v City of Melbourne, and the joint judgment to which his Honour was a party in Williams v Milotin. From those passages, it appears that Dixon CJ must have doubted Stanley v Powell.
(2016) 95 NSWLR 117; [2016] NSWCA 132 at [26].
Cf Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21].
Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [23].
Interpretation Act 1987 (NSW) s 35(1).
See [74]-[75] above.
Below at [195].
Judgment at [15], [16].
[2005] NSWCA 168; (2005) Aust Torts Reports ¶81-791.
(1957) 75 WN (NSW) 173 at 175.
[2011] NSWCA 358 at [36].
Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 at [40]-[41] (Ipp JA, with whom Beazley JA and Hunt AJA agreed).
[2008] NSWCA 312 at [103].
Explanatory Note, Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW) p 5. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2019

Supreme Court Act 1878(SA)

uber v Grzesiak [1963] VR 621 Lambert & Olliot v Bessey (1680) T Raym 421; 83 ER 220 Leame v Bray (1803) 3 East 593; 102 ER 724 Leishman v Thomas (1957) 75 WN (NSW) 173 Letang v Cooper [1965] 1 QB 232 McHale v Watson (1964) 111 CLR 384; [1964] HCA 64 McHale v Watson (1966) 115 CLR 199; [1966] HCA 13 National Coal Board v Evans & Co (Cardiff) Ltd [1951] 2 KB 861 Nickells v City of Melbourne (1938) 59 CLR 219; [1938] HCA 14 Platt v Nutt (1989) 12 NSWLR 231 Rylands v Fletcher (1868) LR 3 HL 330 Stanley v Powell [1891] 1 QB 86 Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 The Albano [1892] P 419 Timmins v Oliver (NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported) Venning v Chin (1974) 10 SASR 299 Weaver v Ward (1616) Hob 134; 80 ER 284 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83 Texts Cited: C H S Fifoot, History and Sources of the Common Law: Tort and Contract (1949, Steven & Sons Ltd) C Sappideen and P Vines (eds) Fleming's the Law of Torts (10th ed, 2011, Law Book Co) D Ipp et al, Review of the Law of Negligence: Final Report (2002, Commonwealth) J Fleming, The Law of Torts (9th ed, 1988, Law Book Co) R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts (21st ed, 1996, Sweet & Maxwell) W Holdsworth, A History of English Law (2nd ed, 1937, Meuthen & Co Ltd, Sweet & Maxwell) Category: Principal judgment Parties: State of New South Wales (Applicant) Mohammed Ouhammi (Respondent) Representation: Counsel: L Gyles SC/M Gollan (Applicant) R de Meyrick (Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] On 12 December 2011 the respondent, Mr Ouhammi, was arrested by police while urinating in a public place in Bondi Junction. He was heavily intoxicated, unsteady and unable to identify himself. He was taken to Waverley Police Station and placed in a holding cell. The door of the cell was made of heavy perspex which opened outwards and was secured by a sliding bolt. There was a small bench attached to the opposite wall which was about one step away from the door. The respondent lay down on the bench, facing away from the door. A senior constable opened the door slightly and called to the respondent. Within two to three seconds, the respondent rolled over and took a step towards the door. The senior constable quickly closed the door. The respondent's thumb was caught in the door and was partially severed, resulting in a partial amputation. The incident was captured on CCTV footage. The respondent brought proceedings claiming damages for personal injury, alleging assault, battery and negligence. The primary judge found in favour of the respondent on the basis of battery by negligence and awarded damages of $82,000. The State sought leave to appeal, raising the following issues: (1) whether the primary judge erred in failing to apply the Civil Liability Act 2002 (NSW); (2) which party carries the burden of proof where the tort of battery is alleged; (3) whether the senior constable's conduct in closing the door was negligent in the circumstances; (4) if liability was found: (a) the degree (if any) of contributory negligence; (b) the appropriate quantum of damages. The Court (Basten JA and Simpson AJA, Brereton JA dissenting) granting leave to appeal and allowing the appeal: In relation to issue 1: per Basten JA, Brereton JA and Simpson AJA: (i) Section 3B of the Civil Liability Act only excludes the operation of the Act where the conduct that is the subject of proceedings was intentional, and done with intent to cause injury; the Act is not excluded merely because the proceedings relate to an intentional tort: [8], [51], [169]. Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111; Fede v Gray [2018] NSWCA 316; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18, applied. (ii) As he accepted that the senior constable did not intend to cause injury to the respondent, the primary judge erred in failing to apply the Civil Liability Act to the proceedings: [9], [51], [170]. In relation to issue 2: per Brereton JA and Simpson AJA: (iii) Section 5B of the Civil Liability Act does not alter the longstanding approach to the tort of battery, which places the onus of negativing fault on the defendant: [105]-[109], [189]. Ball v Axten (1866) 4 F & F 1019; 176 ER 890; Bunyan v Jordan (1937) 57 CLR 1; [1937] HCA 5; Carter v Walker (2010) 32 VR 1; [2010] VSCA 340; Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Kruber v Grzesiak [1963] VR 621; Leame v Bray (1803) 3 East 593; 102 ER 724; Letang v Cooper [1965] 1 QB 232; McHale v Watson (1964) 111 CLR 384; [1964] HCA 64; Nickells v City of Melbourne (1938) 59 CLR 219; [1938] HCA 14; Stanley v Powell [1891] 1 QB 86; Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; Timmins v Oliver (NSWCA, Jacobs, Manning and Moffitt JJA, 12 October 1972, unreported); Venning v Chin (1974) 10 SASR 299; Weaver v Ward (1616) Hob 134; 80 ER 284; Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83, considered. per Basten JA: (iv) The wording of s 5B of the Civil Liability Act, requirements of other provisions and principles applicable to Pt 1A indicate that the plaintiff has the onus of establishing the defendant's failure to exercise reasonable care and skill: [25]-[28]. McHale v Watson (1964) 111 CLR 384; [1964] HCA 64; Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37; Weaver v Ward (1616) Hob 134; 80 ER 284; Williams v Milotin (1957) 97 CLR 465; [1957] HCA 83, considered. In relation to issue 3: per Basten JA and Simpson AJA: (v) As the senior constable had minimal time to react to the situation, and there was no evidence that he knew the respondent's hand was in the door, a reasonable person in his position would not have taken the precaution of giving a warning or direction: [36], [195]. Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791; Leishman v Thomas (1957) 75 WN (NSW) 173, considered. (vi) Accordingly, negligence on the part of the appellant is not proven and the appeal should be allowed: [37], [202]. per Brereton JA: (vii) The conduct of the senior constable in suddenly and forcefully closing the door was not utterly without fault, as the exercise of ordinary care and skill could have prevented the physical contact. Liability was therefore established: [112]-[113]. Ball v Axten (1866) 4 F & F 1019; 176 ER 890; Weaver v Ward (1616) Hob 134; 80 ER 284, considered. In relation to issue 4(a): per Basten JA: (ix) On the assumption that the finding of no liability was in error, s 50 of the Civil Liability Act called for consideration. The respondent was significantly intoxicated at the time of the incident and it was not probable that the injury would have been likely to have occurred in any event. Accordingly, s 50(2) is engaged to preclude an award of damages. Alternatively, by ss 50(3) and (4), any award of damages would be reduced by at least 25% for contributory negligence: [40]-[41]. per Brereton JA: (x) Section 50 of the Civil Liability Act is not engaged as it was not demonstrated that the respondent's intoxication impaired his capacity to exercise reasonable care and skill in the circumstances. If it did apply, the award would be reduced by 25%: [119], [129]. In relation to issue 4(b): per Basten JA and Brereton JA: (xi) On the assumption that the defendant was liable, on the scale of the assessment of non-economic loss the injury was likely around 23% of the most extreme case and would result in an award of damages of $30,500: [44], [131]. per Basten JA: (xii) As damages should be reduced by 25% due to the respondent's intoxication, the appropriate award would be $23,000: [44].

The position at common law

A battery is constituted by the direct application of force to the person of another, without lawful justification or excuse. [29] Like other forms of trespass to the person, a battery may be justified (for example, on grounds of self‑defence, exclusion or ejectment of a trespasser, acting in support of the criminal law to secure the peace, statutory authority, and - at least in some circumstances - consent); [30] and it may be excused in the case of inevitable accident. [31]
In the passage which has been cited by Basten JA, [32] Fleming explained that historically, neither intention nor negligence was required to found liability for battery, and that even a faultless battery was actionable unless the defendant could establish that it was an inevitable accident (footnotes omitted): [33] For injuries to the person or property which were the immediate and direct result of the defendant's force and for which an action of trespass would lie, the early common law imposed a rather strict responsibility. Though perhaps never absolute because a few defences like unavoidable necessity and self-defence gained very early recognition, liability was not apparently contingent on wrongful intent or negligence. Even a faultless trespassery contact was actionable unless the defendant could show that the accident was inevitable - 'judged utterly without his fault; as if a man by force take my hand and strike you'.
The quote at the end of that passage is from Weaver v Ward, [34] which has been consistently referred to ever since, and remains authoritative. [35] It establishes the dual propositions (1) that it is for the defendant to negative fault, and (2) that (apart from lawful justification) the defendant could do so only by showing that the act was involuntary or that the ensuing physical contact was the result of an inevitable accident: [36] Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded, that he was amongst others by the commandment of the Lords of the Council a trained soldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they were skirmishing with their musquets charged with powder for their exercise in re militari, against another captain and his band; and as they were so skirmishing, the defendant casualiter et per infortunium et contra voluntatem suam, in discharging of his piece did hurt and wound the plaintiff, which is the same, etc absque hoc, that he was guilty aliter sive alio modo. And upon demurrer by the plaintiff, judgment was given for him; for though it were agreed, that if men tilt or turney in the presence of the King, or if two masters of defence playing their prizes kill one another, that this shall be no felony; or if a lunatick kill a man, or the like, because felony must be done animo felonico: yet in trespass, which tends only to give damages according to hurt or loss, it is not so; and therefore if a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass (for this is the nature of an excuse, and not of a justification, prout ei bene licuit) except it may be judged utterly without his fault. As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt.
It is noteworthy that it was thus held that a pleading that the defendant's act was done casualiter and per infortunium and contra voluntatem suam (which is to say accidentally, by misadventure and involuntarily) was insufficient to raise a defence, in the absence of pleaded facts to show that it was inevitable and that the defendant had committed no negligence. The concluding paragraph of the report illustrates that the content of the excuse "utterly without fault" involves either involuntariness ("as if a man by force take my hand and strike you"), or circumstances so beyond the defendant's control that it could be said that the defendant's act was not the cause of the ensuing physical contact ("or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging").
In Lambert & Olliot v Bessey, [37] it was said that "in all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering"; and that "if a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies by that person, and yet I did a lawful thing".
In Dickenson v Watson, [38] the plaintiff sued the defendant for wounding him with his pistol; the defendant's plea that he discharged his pistol in a vacant place, and that the plaintiff had crossed the line of fire unknown to him, was held bad on the basis that in trespass the defendant shall not be excused except in a case of unavoidable necessity, which was not established.
In Leame v Bray, [39] the defendant drove his carriage against the plaintiff's chaise, causing the plaintiff's horses to bolt; the plaintiff's servant was ejected and the plaintiff, to save his life, jumped out and fractured his collarbone. The defendant was not "otherwise blameable than driving on the wrong side of the road in a dark night". It was held that the remedy was trespass, not case, the injury being immediate from the act done. In observations which suggest that it is direct application of force which constitutes the tort regardless of the defendant's state of mind or any question of fault, Lord Ellenborough CJ said: [40] If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern. It is immaterial whether the injury be wilful or not.
To like effect, Grose J said: [41] Looking into all the cases from the Year Book in the 21 H. 7, down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass.
Those cases, and some others, were considered by Sir William Holdsworth to illustrate a rule that a direct act of violence to another rendered the actor liable for trespass, even though the act itself not be unlawful and the impact purely accidental, except in cases of unavoidable necessity or inevitable accident. [42]
In James v Campbell, [43] where the defendant, who was brawling with another man, unintentionally and accidentally struck the plaintiff, Bosanquet J directed the jury that the defendant's intention was irrelevant: If you think, as I apprehend there can be no doubt, that the defendant struck the plaintiff, the plaintiff is entitled to your verdict, whether it was done intentionally or not. But the intention is material in considering the amount of the damages.
In Hall v Fearnley, [44] it was held that it was not open to a defendant on a mere plea of "not guilty" to show that there was no negligence on his part and that the plaintiff had accidentally slipped from the pavement and the defendant unintentionally drove over him - so that that a blow, even if accidental, unless entirely involuntary, could be justified or excused only on a specially pleaded defence, on which the defendant bore the onus. [45] A distinction was recognised between a contention that the act was involuntary, resulting from some superior agency, that might be raised under the general issue; but if it were admitted that it were the act of the defendant, then it had to be justified or excused under a special plea. Lord Denman CJ observed, arguendo: If the plaintiff has suffered damage by a trespass not justified, the defendant should pay the whole amount without inquiry into the question of animus. The case would be different, if the defendant was not a voluntary agent. So it may be different where an action on the case for negligence is brought, and the negligence is denied; there negligence is the fact in issue.
In Ball v Axten, [46] the defendant struck with the handle of his riding whip at a dog which was barking at him, and accidentally hit the plaintiff, who had approached to shield her dog. Cockburn CJ directed the jury that "even though the defendant had not aimed the blow at the woman, there was no doubt an assault"; further, there being no evidence in support of a justification, no defence was set up, and all the jury had to do was to assess damages.
Confusion came with the march of the tort of negligence, and the advent of the motor vehicle, as courts endeavoured to avoid imposing strict liability for accidents on the highway, and limitation statues often provided different periods for bringing actions in trespass and actions in negligence. It was in this context that the unfortunate and in my view inapt notion of "battery by negligence" emerged - inapt because it suggests that negligence is part of the cause of action.
By 1875, it had become established that on public thoroughfares, such physical interaction as reasonable care could not avoid was no longer actionable. In Holmes v Mather, [47] the defendant's horses ran away on the highway and injured the plaintiff. Bramwell B said: [48] For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid. I think the present action not to be maintainable. … As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful.
However, Cleasby B added an observation to the effect that a basis for exculpating the defendant was that his act was involuntary: [49] This is not a case where … a man does a particular thing to avoid something else, but it is a case where it must be shewn that it was the act of the defendant himself. I sum up all in these words: in my opinion, the horses were not driven there by the defendant's servant, but they went there in spite of him, so far as he directed them at all.
The "public thoroughfare" cases came to be rationalised on the basis that a person who entered on a public thoroughfare voluntarily assumed the risk of non-negligent physical contact by others, as Diplock J observed in Fowler v Lanning. [50]
However, in Stanley v Powell, [51] Denman J held that trespass to the person was not an absolute wrong (in the sense that a defendant was liable for a direct unjustified voluntary act of force against the plaintiff's person, regardless of whether the act was intentional, negligent or neither), and that without intention or negligence the defendant was not liable. [52] The defendant, who was a member of a shooting party, shot at a pheasant, and a pellet from his gun glanced off the bough of a tree and accidentally wounded the plaintiff, who was engaged as a carrier of game for the party. The jury found that the defendant was not guilty of any negligence, and Denman J held that in those circumstances he was not liable, on the ground that a trespass to the person was not actionable if neither intentional nor negligent. Proceeding on the basis that the defendant had (as required by Weaver v Ward) affirmatively denied evidence and pleaded facts negativing negligence, that amounted to an excuse in law. [53] His Lordship said that Leame v Bray did not show that in the absence of any negligence the defendant would have been liable, as some negligence was established. [54] His Lordship said that there was a distinction between an inevitable act (which afforded a defence under the general issue), and an excusable act, which had to be pleaded, and of which no-one might be excused except it be judged utterly without fault: [55] On referring back to Weaver v Ward, I can find nothing in the report to shew that the Court held, that in order to constitute a defence in the case of a trespass it is necessary to shew that the act was inevitable. If inevitable, it would seem that there was a defence under the general issue; but a distinction is drawn between an act which is inevitable and an act which is excusable, and what Weaver v Ward really lays down is that "no man shall be excused of a trespass except it may be judged utterly without his fault".
However, the last sentence in the report of Weaver v Ward, set out above, does appear to require that the defence plead facts showing that the accident was inevitable. His Lordship also referred to Bacon's Abridgment: [56] In Bacon the word "inevitable" does not find a place. "If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful" (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury, as for instance, in a case of self-defence) "and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to shew not only that the act complained of was accidental" (by which I understand, 'that the injury was unintentional,') "but likewise that it was not owing to neglect or want of due caution".
It is not without significance that the passage cited from Bacon - which recurs in later Australian cases, mentioned below - refers not merely to "neglect" but also to "want of due caution"; it is not equivalent to a breach of a duty of care. In any event, it is clear that Denman J considered that in such a case, the defendant bore the onus of pleading excuse and negativing any fault.
The defence of "inevitable accident" was discussed in The Albano, [57] in which Lord Esher MR said: Now, these words were deliberately used with reference to what is taken to be a well-known phrase, "inevitable accident", and which is a head of law well known, and distinguished from the case of mere negligence. The ship in motion is not allowed in such a case to say merely, "I was not guilty of an ordinary want of care and skill". It must be shewn that it was an inevitable accident. There is the law laid down by the Court, and that only leaves open this - What is the proper definition of inevitable accident? To my mind these cases shew clearly what is the proper definition of inevitable accident as distinguished from mere negligence - that is a mere want of reasonable care and skill. In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill".
Fry and Lopes LJJ took a less strict view, but nonetheless were of the view that inevitable accident is one which the party charged with the damage "could not possibly prevent by the exercise of ordinary care, caution and maritime skill". [58] Lopes LJ said that in this respect there was no distinction as regards inevitable accidents between cases which occur on land and those which occur at sea. [59] Thus there is a class of conduct which, without crossing the threshold of a failure to exercise reasonable care and skill, is nonetheless not "utterly without fault" - because (to adapt the words of Lord Esher MR) it does not appear that something happened over which the defendant had no control, the effect of which could not have been avoided by the greatest care and skill; or (using the language of Fry and Lopes LJJ), it does not appear that the exercise of ordinary care and skill could possibly have prevented the event.
In England, Stanley v Powell was approved by the Court of Appeal in National Coal Board v Evans & Co (Cardiff) Ltd [60] - a case of trespass to property - in which it was doubted, though not finally determined, that the dicta of Bramwell B in Holmes v Mather were confined to an accident on the highway, as it could hardly be said that the arguments based on the convenience of mankind, which Bramwell B put in the forefront of his judgment, were relevant in the case of an accident on private property. The case was decided on the basis that the defendant was "utterly without fault".
Then, in Fowler v Lanning, [61] Diplock J held that: 1. trespass to the person did not lie if the injury, though the direct consequence of the defendant's act, was caused unintentionally and without negligence; 2. in this respect, trespass on the highway did not differ from trespass elsewhere; 3. plaintiffs must now be taken to have voluntary assumed the risk of inevitable injury by any lawful non-negligent act; and 4. the onus of proving negligence, in the case of a non-intentional trespass, fell upon the plaintiff, and this was not confined to highway cases.
Subsequently, in Letang v Cooper, [62] the Court of Appeal (Lord Denning MR, Danckwerts and Diplock LJJ), endorsing Fowler v Lanning and Kruber v Grzesiak [63] (discussed below), held that trespass was not available for an unintentional act, the only available cause of action being in negligence.
However, the status of Stanley v Powell, Fowler v Lanning and Letang v Cooper in this State is dubious. In Blacker v Waters, [64] the plaintiff had been struck in the eye by the fragment of a bullet fired by the defendant at a shooting gallery. The defendant pleaded that the damage done was not caused intentionally, and could not have been avoided by reasonable care on his part, and that therefore the case was one of an inevitable accident. Street CJ (with whom Ferguson and James JJ agreed) said (emphasis added): In my opinion the appeal fails. No contention was raised that the principles enunciated by Blackburn, J, in delivering the judgment of the Court of Exchequer Chamber in Fletcher v Rylands (LR 1 Ex 265) applied. If they did, the defence of inevitable accident would not have been open to the defendant. I say nothing about that, however, as the case was conducted on the assumption that in the absence of negligence the defendant was not liable. The trespass to the plaintiff's person was complete, on proof that the lead which entered his eye came from the bullet fired by the defendant at the target, and the defence was that it was not actionable as it was neither intentional nor the result of negligence. See Stanley v Powell ([1891] 1 QB 86.) The burden of establishing that it was neither intentional nor the result of negligence lay, in my opinion, upon the defendant. From my reading of the reasons given by Denman, J, in his judgment in Stanley v Powell I gather that that was his view, and it is supported by some of the authorities which he discussed and considered. In Weaver v Ward (Hob 134) the plaintiff and the defendant were engaged in skirmishing exercises as train band soldiers, and the defendant hurt the plaintiff by mischance. In an action of trespass he pleaded that what he did he did casualiter et per infortunium et contra voluntatem suam, but it was held that no man should be excused of a trespass except it might be judged utterly without his fault; and the plea was held bad, because it did not set out the circumstances so that it might appear whether the defendant had been negligent or not. That case is referred to in Bacon's Abridgement, in dealing with the pleadings in an action of trespass, as an authority for the following proposition (7th Ed. Vol. 7, p. 707): - "If the circumstance which is specially pleaded in an action of trespass do not make the act complained of lawful, and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental, but likewise that it was not owing to neglect, or want of due caution."
It will be observed that the court put to one side - and did not decide - the question of strict liability, "as the case was conducted on the assumption that in the absence of negligence the defendant was not liable". While Stanley v Powell was referred to, it was at least chiefly on the question of onus. Nonetheless, the passage cited recognised that the defence in question was one of inevitable accident, and confirmed that the onus of making it good fell upon the defendant. The continued authority of Weaver v Ward was endorsed.
In Bunyan v Jordan, [65] Latham CJ observed that "[i]f A, intending to hit B unlawfully, in fact hits C, there is no doubt as to A's liability to C". That observation is redolent of the decisions in James v Campbell and Ball v Axten, and does not suggest that any fault element is required vis-à-vis the actual victim.
In Nickells v City of Melbourne, [66] Dixon J (as he then was) observed that in a highway case, an unintentional trespass was not actionable in the absence of negligence - the implication being that in other cases, it was actionable without negligence (emphasis added): But involuntary trespass to land is not always an actionable wrong. Just as in trespass to the person and in trespass to goods it has come to be the law that an unintentional injury to or interference with another's person or property on the part of the user of a highway is not actionable in the absence of negligence, so if, in the course of any reasonable use of a public way, a man unintentionally damages neighbouring premises, the law does not hold him liable as a trespasser unless he has been guilty of negligence.
These observations of Sir Owen presaged the judgment of the High Court, presided over by him as Dixon CJ, in Williams v Milotin, [67] in which the issue was whether an action for damages for personal injuries occasioned by negligent driving of a motor vehicle could have been brought in negligence (for which the limitation period was six years) or in trespass (for which the three-year limitation period had expired). In a joint judgment, Dixon CJ, McTiernan, Williams, Webb and Kitto JJ held that it could have been brought in either, and said: [68] At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff, by his next friend, intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise. But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence. Had the damage been caused indirectly or mediately by the defendant or by his servant (a state of things to be distinguished from violence immediately caused by the defendant's own act) the action must have been brought as an action on the case and not otherwise. See Leame v Bray (1803) 3 East 593 (102 ER 724); Williams v Holland (1833) 10 Bing 112 (131 ER 848); Sharrod v London and NW Railway Co (1849) 4 Ex 580 (154 ER 1345); and Holmes v Mather (1875) LR 10 Ex 261; cf Stanley v Powell [1891] 1 QB 86 and the comment thereon in Fifoot: History and Sources of the Common Law (Tort and Contract) (1949), pp 188, 189. See too the note in Smith's Leading Cases in the sixth (1867) and previous editions under Scott v Shepherd.
That passage appears to treat Leame v Bray as still authoritative, while being decidedly more ambivalent in respect of Stanley v Powell; the comment in Fifoot to which it refers is as follows: The conclusion here reached [in Stanley v Powell], that a defendant was liable neither in Trespass nor in Case unless he had been in some degree at fault, has been variously received. Sir William Holdsworth and Professor Winfield agree that the evidence is to be sought rather in dicta than in decisions and that it is negative rather than positive; but while the former detected, the latter denies, a mediaeval tendency to strict liability. Dr Stallybrass accepted Stanley v Powell as good modern authority, but thought it represented 'a departure from the earlier precedents'. Pollock, in the eleventh edition of his Law of Torts, opposed a number of conflicting dicta, but, after inclining against the view of strict liability, declared that 'the decisive change of opinion took place within our own time'. Mr Landon, in the fourteenth edition, denounces both Holmes v Mather and Stanley v Powell as wrong in law, in morals and in history.
Subsequently, of the causes of action in trespass and negligence, their Honours said (emphasis added): [69] The two causes of action are not the same now and they never were. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage - it is the gist of the action - and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person. It is true that in the absence of intention of some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as a trespass. It is unnecessary to inquire how that comes about. It is perhaps a modification of the general law of trespass to the person. But it does not mean that trespass is the same as actionable negligence occasioning injury. It happens in this case that the actual facts will or may fulfil the requirements of each cause of action.
That passage is to the effect that intention or negligence is not a requisite element of a cause of action in trespass, except in respect of "a violation occurring in the course of traffic in a thoroughfare", and that that exception was an apparently anomalous modification of the general law of trespass to the person, in the special context of traffic in a thoroughfare. While the High Court considered it unnecessary to inquire as to how that modification came about, it is reflective of Bramwell B's observation that for the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid, and is explicable on the basis, referred to above, of the presumed voluntary assumption of the risk of non-negligent physical contact upon a public thoroughfare. Accordingly, Williams v Milotin provides no support for the view that intention or negligence is a necessary element of battery, other than on a thoroughfare; to the contrary, it treats the thoroughfare cases as an anomalous exception. While it may be that in McHale v Watson [70] (discussed below) Windeyer J later took a different approach, those remarks of a full High Court have, so far as I can ascertain, never been overruled.
In Kruber v Grzesiak [71] (to which reference was made in Letang v Cooper), Adam J said: The real contest before me was whether the action, if framed as one of trespass to the person, would be an action for damages for negligence, nuisance or breach of duty within the meaning of any of those expressions in subs(6). I agree with the submission of Mr. Merralls, who appeared for the second-named defendant and supported the proposed amendment, made in the course of his interesting and careful argument, that despite changes introduced by the Judicature Act, the cause of action for trespass to the person - though founded on negligence and not on intentional infliction of injury - remains distinct from an action on the case founded on the same negligence, in the one case the tort is actionable without proof of damage; in the other, proof of damage is the gist of the action. In the one case the injury to the person of the plaintiff must be the direct and immediate result of the defendant's conduct; in the other it may be consequential only: see Williams v Milotin (1957) 97 CLR 465; [1957] ALR 1145; 49 Law Quarterly Review 359. But despite these differences, the two causes for action possess this feature in common where the act causing the injury is unintentional, that in each case it is essential that the injuries complained of should have been caused by the negligent conduct of the defendant. I refer to Nickells v Corporation of Melbourne (1938) 59 CLR 219; [1938] ALR 154; also see Williams v Milotin, supra, and Fowler v Lanning [1959] 1 QB 426; [1959] 1 All ER 290. The question which arises is whether, for the purposes of s 5(6), an action for damages for trespass to the person in which proof of negligence is an essential ingredient is an action for damages for negligence and if not, whether it is an action for breach of duty. The conclusion I have reached is that s 5(6) should be given a liberal rather than a narrow or technical construction and that the expression "actions for damages for negligence" -should be construed to include not only actions on the case for negligence, but also actions of trespass to the person in which, because the trespass is not intentional, proof of negligence is an essential ingredient.
The case was one of a highway accident, and insofar as that passage may suggest that in an action for damages for unintentional trespass to the person, proof of negligence is an essential ingredient, it should be understood, in the light of Williams v Milotin, to which Adam J referred, as being directed to such a case. Moreover, any suggestion that the plaintiff bore the onus derives from Fowler v Lanning which, as will be seen, is not authoritative in Australia.
In McHale v Watson, [72] which was not a highway accident case, Windeyer J wrote: Turning from the legal position of the parents back to that of their son, much was said about the way in which I should approach the case against him, based as it is alternatively upon assault and battery and upon negligence. The distinction between trespass and case, important though it still is for some purposes, and great and perennial as its fascination seems to be for lawyers, has I think little practical consequence for adjudication upon the facts of this case. But because of what was said on the topic by counsel I must refer to it briefly. Negligence would of course be the essence of the action in case. And as I understood the argument it was conceded, and rightly I think, that the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part. So much must I think now be taken to have been established since Stanley v Powell [1891] 1 QB 86, despite some vigorous academic criticism of that decision. But the question remains, Is it for the plaintiff to establish that the missile with which she was hit was thrown with intent to hit her or so negligently that it did so - or is it for the defendant who threw it to prove an absence of intent and negligence on his part? I think the latter view is correct. I take the law to be as stated in Blacker v Waters (1928) 28 SR (NSW) 406; 45 WN 111 and Williams v Milotin (1957) 97 CLR 465, at p 474; and see National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861. I have not overlooked the learned discussions by Diplock J in Fowler v Lanning [1959] 1 QB 426, by Clyne J in Walmsley v Humenick (1954) 2 DLR 232, and by McGregor J in Beals v Hayward [1960] NZLR 131. Their judgments support the proposition that in an action for trespass to the person, based upon a battery by a blow or a missile, the plaintiff must aver and prove that the act of the defendant in delivering the blow or missile was either intentional or negligent. I do not think this is so. The law in such cases is still, I think, as stated in the old and constantly quoted words in Weaver v Ward (1617) Hob 134; 80 ER 284, on which Doctor Bray relied, that "No man shall be excused of a trespass except it be adjudged utterly without his fault". But I should add that this was said in a report of a successful demurrer by the plaintiff to a plea in answer to a count in trespass which plea had alleged that the defendant had accidentally, by misadventure and involuntarily (casualiter et per infortunium et contra voluntatem suam) discharged his musket. It should have stated facts negativing negligence or showing how the act was involuntary. I read contra voluntatem as relating there to volition rather than intent; but there is no need to pursue the refined distinctions of later times. The words "utterly without his fault" mean, as the context and later decisions make clear, not an absence of all ground for blame and censure of any kind but an absence of such negligence as constitutes fault in law. In Bacon's Abridgement, 6th ed (1807) under the heading "Trespass (D)" it is said: "If one man have received corporal injury from the voluntary act of another, an action of trespass lies, provided there was a neglect or want of due caution in the person who did the injury, although there were no design to injure."
First, his Honour appears to have accepted the authority of Stanley v Powell for the view that the plaintiff could not succeed if the defendant's act was unintentional and without negligence, although noting that there was vigorous academic opinion to the contrary. However, and with utmost respect, his Honour does not appear to have referred in this context to the passage set out above from Williams v Milotin, which - in respect of non-highway cases - is aligned with that academic opinion. Secondly, his Honour confirmed that it was for the defendant to negative intent and "negligence", which was explained as meaning "not an absence of all ground for blame and censure of any kind but an absence of such negligence as constitutes fault in law", and (by reference to Bacon's Abridgement) "a neglect or want of due caution in the person who did the injury".
In Timmins v Oliver, [73] Jacobs JA (with whom Manning and Moffitt JJA agreed) rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying: Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. ... Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not.
The developments and departures of the law in Australia from that in England were comprehensively traced and analysed by Bray CJ (who as Dr Bray QC had invoked Weaver v Ward in McHale v Watson [74] ) in Venning v Chin. [75] On the question whether trespass was still available for injuries caused by negligence, his Honour concluded that Letang v Cooper was irreconcilable with Williams v Milotin, which established that an action for trespass could still be brought for a highway accident, but would not succeed if the act complained of was neither intentional nor negligent. His Honour said: [76] [t]he sentence, "It is true that in the absence of intention of some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as a trespass", does not mean that an action for trespass cannot be brought for a highway accident. The judgment clearly recognises that it can. The sentence means that the action will not succeed if the act complained of was neither intentional nor negligent. Perhaps, as will be seen later, it also has some reference to the onus of proof.
As to the onus of proof, his Honour said that Stanley v Powell had resolved the long-standing controversy about whether or not trespass to the person was an absolute wrong: [77] There was for long a dispute about whether or not trespass to the person was an absolute wrong in the sense that if there was a direct unjustified voluntary act of force on the part of the defendant against the plaintiff's person or property the defendant was liable, whether his action was intentional or negligent or neither. That controversy was finally put to rest, I think, by Stanley v. Powell. It is true that that decision was only the decision of a single Judge, Denman J. It is true also that it did not relate to a highway accident, though highway accidents, I should think, were a fortiori. But it was approved by the Court of Appeal in National Coal Board v. Evans & Co. (Cardiff) Ltd. and by Windeyer J. in McHale v. Watson. Indeed, I think the principle that the defendant is not liable in trespass if his act was neither intentional nor negligent is implicit in the famous case of Weaver v. Ward. I do not pause, therefore, to enter into the academic controversy about the matter and I take it that there is no liability in trespass for the use of force against the person which is neither intentional nor negligent.
His Honour concluded that generally, the onus was on the defendant to prove that the act in question was neither intentional nor negligent, and in this respect McHale v Watson was conclusive and contrary to Fowler v Lanning; but exceptionally, in the case of an action in trespass for injury received in a highway accident, the onus was on the plaintiff to prove either intention or negligence on the part of the defendant: [78] In summary, I think that I am bound by McHale v Watson and the other authorities to which I have referred to hold that in trespass generally the onus lies on the defendant to disprove negligence, but also I think that the weight of authority favours the proposition that highway accidents are an exception to this rule and that in trespass for injury on the highway the onus is on the plaintiff to prove either intention or negligence on the part of the defendant.
Of the passage in Williams v Milotin to which I have drawn attention, [79] his Honour said: [80] Then there are the remarks in Williams v. Milotin to which I have previously referred. Again, in the sentence which I quoted earlier the learned Judges were not specifically talking about onus of proof. Nevertheless I am inclined to construe what was said in the last two High Court cases as relevant to that question. I doubt if either in 1938 or in 1957 the High Court would have thought it necessary to recanvass the issue of absolute liability decided in Stanley v. Powell without reference to that case. And Stanley v. Powell was not a highway case, but one which endeavoured to establish the conditions of liability in trespass generally. The "modification of the general law of trespass to the person" referred to in the passage from Williams v. Milotin at p. 474 previously cited cannot be a modification restricting liability to intentional or negligent injury for since Stanley v. Powell that is a characteristic of all trespasses to the person. I think that "modification" can only refer to the onus of proof. I can think of nothing else to which it could refer.
I cannot take the same view of that passage. First, in Williams v Milotin, the High Court did indeed refer to Stanley v Powell, in a manner which, as I have sought to explain above, appears ambivalent. Secondly, the "modification of the general law of trespass" referred to is the modification by which in a highway case there had come to be no liability in the absence of at least negligence. That reflects the reference in Nickells v City of Melbourne (the first of the two High Court cases to which Bray CJ referred) to the circumstance that it has come to be the law that an unintentional injury on the highway is not actionable in the absence of negligence. Thirdly, in both cases, not only were the Justices not specifically talking about the onus of proof (as Bray CJ acknowledges), but the question of onus did not arise in the context.
In Carter v Walker, [81] the Victorian Court of Appeal explained that while battery is a so-called "intentional" tort, care needs to be taken in considering the intention which is relevant; that the defendant's act which causes physical contact with the plaintiff must be voluntary, in the sense that it is directed by the defendant's conscious mind; but that if the act is voluntary, and the defendant "meant to do it" in the sense of meaning to contact the plaintiff, it will be relevantly intentional; and that it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff. The Court suggested that this was the conceptual justification for the decisions in James v Campbell and Ball v Axten; but in my view those cases - which are reflected in the observation of Latham CJ in Bunyan v Jordan [82] - support the view that all that is required is that the act is voluntary, and no mental element in respect of contact with the plaintiff is involved. However, the Court observed [83] that while in England what used to be called negligent trespass was now wholly subsumed within the tort of negligence (referring to Letang v Cooper), the law in Australia has diverged (citing Williams v Milotin and referring also to McHale v Watson, Venning v Chin and Horkin v North Melbourne Football Club Social Club [84] ) although the divergence was not complete, with road traffic accident claims being a special category of case.
That it remains for the defendant to aver and prove the absence of fault on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently, was confirmed by Gummow J in Stingel v Clark: [85] [I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently.
In Croucher v Cachia, Leeming JA, referring to Timmins v Oliver, McHale v Watson, and Blacker v Waters said that it was clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention, [86] and that the position that no man may be excused of a trespass "except it may be judged utterly without his fault" was essentially unchanged four centuries after Weaver v Ward, [87] acknowledging that English law had diverged in this respect. [88] Notably, his Honour said that, in this somewhat unfamiliar context, "negligence" means an absence of fault on the part of the defendant, illustrating that "negligent" bears a variety of meanings, depending upon the context; [89] this is consistent with the view that the often-cited reference in Bacon's abridgement to "a neglect or want of due caution in the person who did the injury", is not to be equated with a breach of a duty of care.
The Australian authorities to which I have referred are consistently to the effect that (except in highway cases), at common law, the onus of negativing fault is borne by the defendant. [90] As to whether it suffices to negative intention and negligence, it is true that the only authority directly on point, being Stanley v Powell, holds that it does, and although that decision has been subject to criticism, Denman J's analysis of the earlier authorities - which tends to show that there was no case in which there was not some element of negligence - is not without force. English authorities since then certainly favour that view. However, as has been said, [91] the evidence is to be found more in dicta than in decisions, and in inference rather than in express statement, and there is a strong flavour in the authorities before Stanley v Powell that, subject to an exception in highway cases, negligence was not an element of the tort. No less a jurist than Sir Owen Dixon appears to have held to that view, [92] although Sir Victor Windeyer was later prepared to accept that, though criticised, Stanley v Powell resolved the issue the other way.
In that state of the authorities and conflict of judicial opinion, it is not possible to be adamant about the issue. However, the authorities of greatest weight in this Court emphasise the traditional view and the continuing authority of Weaver v Ward. In Timmins v Oliver, it was said to be "too late in the day" to change the position that nothing more was required than an allegation of the battery. In Croucher v Cachia, the historical differences between trespass and negligence were maintained, [93] and it was emphasised that the position that no man may be excused of a trespass "except it may be judged utterly without his fault" was essentially unchanged four centuries after Weaver v Ward. In Blacker v Waters the view that it sufficed for the defendant to negative negligence was assumed, because the point was not argued. Above all, Williams v Milotin stands as a statement by a unanimous full High Court that a direct violation of the protection which the law throws round the person is a battery, and that only in the case of a violation occurring in the course of traffic in a thoroughfare does absence of intention of some kind or want of due care negate liability.
In those circumstances, the law in New South Wales should be taken to be that (except in highway cases), neither intention nor negligence are elements of the tort of battery, which is constituted by direct offensive physical contact of the plaintiff by the defendant, provided that the defendant will be excused if "utterly without fault", the onus of establishing which lies on the defendant. [94] That means that not only does the plaintiff not have to plead or prove intention or negligence, which are not elements of the cause of action, but also that it does not suffice a defendant merely to negative negligence in the sense of a breach of duty of care or a failure to exercise reasonable care and skill, but requires at the least that the defendant show that it could not possibly have prevented the impact by the exercise of ordinary care and caution. That what a defendant must negate in a case of trespass does not mirror that which a plaintiff must prove in a case of negligence is to be expected, given the different origins and purposes of the torts - the former being addressed to direct violations of "the protection which the law throws round the person" - and that in trespass a plaintiff is not required to plead or prove fault in any form.
Thus - leaving aside highway accident cases, in which it may be accepted that the exception to which I have referred had become established, and which is explicable on the basis that those who go on the highway implicitly consent to non-negligent violations - then, at least before the CLA, the position in New South Wales was that: 1. neither intention nor negligence was part of the cause of action in battery; 2. however, a defendant would be excused from liability if it could show that the violation was utterly without fault on its part; and 3. this required more than negativing negligence in the sense of a failure to use reasonable care and skill, and involved (at the least) proof that the defendant's act was involuntary, and/or that the exercise of ordinary care and caution on the defendant's part could not possibly have prevented the physical contact.

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