State of New South Wales v Ouhammi

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

Application of Civil Liability Act

1. [5]

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

2. [6]

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

3. [7]

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

4. [8]

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

5. [9]

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

6. [10]

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

7. [11]

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

8. [12]

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

9. [13]

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

10. [14]

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

11. [15]

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

12. [16]

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

13. [17]

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

14. [18]

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

15. [19]

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

16. [20]

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

17. [21]

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

18. [22]

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

19. [23]

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

20. [24]

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

21. [25]

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

22. [26]

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

23. [27]

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

24. [28]

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

Existing authority

1. [29]

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

2. [30]

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

Application of principles

1. [31]

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

2. [32]

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

3. [33]

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

4. [34]

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

5. [35]

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

6. [36]

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

7. [37]

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

Contributory negligence

1. [38]

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

2. [39]

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

3. [40]

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

4. [41]

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

Quantum of damages

1. [42]

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

2. [43]

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

3. [44]

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

Conclusion

1. [45]

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

2. [46]

   I agree with the orders proposed by Simpson AJA.

3. [47]

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

4. [48]

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

5. [49]

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

6. [50]

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

7. [51]

   I have had the benefit of reading in draft the judgments to be delivered by Basten JA and Simpson AJA. I agree with their Honours that the trial judge, having explicitly found that the defendant did not intend to cause injury to the plaintiff, erred in failing to consider the defences under Civil Liability Act 2002 (NSW) (“CLA”) that were pleaded (relevantly, and in particular, contributory negligence by intoxication), and in assessing damages at common law, rather than under the CLA. CLA s 3B(1)(a) relevantly excludes the applicability of “the whole Act” in respect of the civil liability of a person (and awards of damages) for an intentional act that is done by the person with intent to cause injury or death. The distinction drawn by s 3B(1) is not between liability for the so-called intentional torts and liability for negligence, but between intentional acts done with intent to injure on the one hand, and unintentional acts and intentional acts not intended to injure on the other. It is concerned not with the way in which the relevant cause of action is framed, but with the intent that accompanies the relevant act. [25] The inevitable consequence of the trial judge’s finding that the defendant did not intend to cause injury to the plaintiff is that s 3B(1)(a) was not engaged, and the Act applies.

8. [52]

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

9. [53]

   The issues which I have found more troubling are:

   1. (1)

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

   2. (2)

      whether that onus has been discharged; and

   3. (3)

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

The fault element in non-intentional battery

1. [54]

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

2. [55]

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

3. [56]

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

4. [57]

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

5. [58]

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

6. [59]

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

7. [60]

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

8. [61]

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

9. [62]

   To like effect, Grose J said: [41]

10. [63]

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

11. [64]

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

12. [65]

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

13. [66]

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

14. [67]

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

15. [68]

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

16. [69]

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

17. [70]

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

18. [71]

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

19. [72]

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

20. [73]

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

21. [74]

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

22. [75]

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

23. [76]

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

24. [77]

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

    1. (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. (2)

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

    3. (3)

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

    4. (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.

25. [78]

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

26. [79]

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

27. [80]

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

28. [81]

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

29. [82]

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

30. [83]

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

31. [84]

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

32. [85]

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

33. [86]

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

34. [87]

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

35. [88]

    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.

36. [89]

    In McHale v Watson, [72] which was not a highway accident case, Windeyer J wrote:

37. [90]

    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”.

38. [91]

    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:

39. [92]

    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]

40. [93]

    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]

41. [94]

    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]

42. [95]

    Of the passage in Williams v Milotin to which I have drawn attention, [79] his Honour said: [80]

43. [96]

    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.

44. [97]

    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.

45. [98]

    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]

46. [99]

    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.

47. [100]

    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.

48. [101]

    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.

49. [102]

    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.

50. [103]

    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. (1)

       neither intention nor negligence was part of the cause of action in battery;

    2. (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. (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.

51. [104]

    Is this changed by the Civil Liability Act? I agree with Leeming JA, in Croucher v Cachia, that it would now be necessary to plead an intention to cause harm in order to attract the exclusion of the CLA under s 3B(1)(a), so as to claim damages assessed at common law, including exemplary damages, rather than under the CLA. [95] However, for the reasons that follow, in my view the CLA does not otherwise affect the tort of battery, either as to where the onus of proof falls, or as to what the party bearing that onus must prove.

52. [105]

    First, not every non-intentional battery can be characterised as a “claim for damages for harm resulting from negligence”, so as to fall within CLA, Part 1A. Division 2 of Part 1A is entitled “Duty of Care”. This heading forms part of the Act. [96] Section 5B defines what is required to establish negligence, in the context of a duty of care. As I have endeavoured to explain, not all non-intentional batteries are the result of negligence, at least as that term is used in s 5 of the CLA; some result from conduct which, though not negligent, nonetheless falls short of being involuntary or excusable as an inevitable accident. This is conduct which, while not 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 in The Albano) 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. [97] In other words, there are non-intentional batteries which result from conduct which, while it does not amount to a failure to exercise reasonable care and skill such as to be a breach of a duty of care, is nonetheless not “utterly without fault”. As I have said, in the context of the different origins and purposes of the torts of trespass and negligence, it is entirely unsurprising 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. It follows that s 5B, in defining elements of negligence, does not circumscribe what might constitute “fault” for the purpose of a defence to the tort of battery, and does not define the limits of what may be judged to be other than “utterly without fault” for those purposes.

53. [106]

    Secondly, even if s 5B does apply, I do not consider that it has anything to say about the burden of proof. In distinction to other provisions in the CLA – such as s 5E (discussed below) which expressly address questions of burden of proof – s 5B is not concerned with where the burden of proving negligence lies. It merely provides tests to be applied in judging whether conduct is or is not negligent. In my view, the circumstance that s 5B(1) is expressed in the negative, by providing that the defendant is “not negligent in failing to take precautions … unless …”, is not of itself any indication that, regardless of the cause of action, it is always the plaintiff who must prove the “unless”. Similarly, s 5B(2) lists mandatory considerations to be taken into account in determining whether – or not – a reasonable person would have taken precautions against a risk of harm; it is equally capable of application where a defendant asserts that a reasonable person would not have taken certain precautions where a plaintiff contends that they ought to have been taken.

54. [107]

    In my view, the silence of s 5B on the question of onus stands in marked distinction to s 5E, which provides that “[i]n determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”. Section 5E is expressly addressed to the proof of causation, as distinct from the proof of negligence in the sense in which that term is used in s 5B. Section 5E is plainly intended to avoid causation being presumed, simply by proof of negligence and harm. In speaking of “any fact relevant to the issue of causation”, it refers to the link between the breach of duty and the harm suffered, by reference to the matters identified in s 5D, and not to the breach of duty itself. It has nothing to say about the onus of proof of negligence, or for that matter, of harm.

55. [108]

    While I accept that the CLA is intended to apply to any claim for harm resulting from a failure to exercise reasonable care and skill, regardless of the cause of action, I am unpersuaded that, in the absence of clear words, it was intended to abolish, by a sidewind, the well-established position that in claims for battery – in which absence of any fault may constitute a defence, but which do not depend on proof of negligence – the onus of negativing fault is born by the defendant.

56. [109]

    Accordingly, I agree with Simpson AJA that the onus of negativing fault fell upon the defendant. However, I do not consider that CLA s 5B defines what for that purpose constitutes “fault”.

Was the onus discharged?

1. [110]

   The trial judge found that Mr Ouhammi had demonstrated no sign of possible criminal behaviour or violence, that he was woken from a position in which he was lying down and asleep, and that there were options open to SC Johnson before closing the door quickly and without warning, without making any allowance for or giving any direction to Mr Ouhammi.

2. [111]

   As Simpson AJA explains, [98] SC Johnson’s evidence 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, and that 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, so that his response was virtually instinctive. It is true that, as her Honour mentions, that evidence was not expressly rejected; although it is clear that the trial judge did have some reservations about it. [99] Nonetheless it may be that he would not be held negligent, in breach of a duty of care, in particular in failing to issue a caution or direction to the respondent before closing the door because – consistent with the observations in the judgment of this Court in Broughton v Competitive Foods Australia Pty Ltd [100] and of Street CJ in Leishman v Thomas [101] – the conduct of a defendant charged with negligence, who responds to the exigencies of a sudden unexpected crisis or emergency of which he or she is not the creator, is not to be held negligent on account of some error of judgment or step which wiser counsels and more careful thought would have suggested was unwise.

3. [112]

   However, for reasons I have endeavoured to explain, in this context that is not the relevant test: a judgment that he was not guilty of negligence such as would incur liability for breach of duty of care would not establish that he was “utterly without fault”. Here, neither was the act involuntary, nor the impact inevitable. It was not as if SC Johnson was carefully closing the door when Mr Ouhammi inexplicably placed his hand into the door jamb. SC Johnson initiated, voluntarily and without warning, the closing of the door on Mr Ouhammi as he saw Mr Ouhammi approach the doorway: the closing of the door was a voluntary, forceful and sudden act on the part of SC Johnson. If one compares the defence that was hypothesised in Weaver v Ward, this was not a case in which the plaintiff so to speak “ran across the defendant’s piece as it was discharging”; Mr Ouhammi was already moving towards or into the doorway as SC Johnson commenced to close the door. It is more comparable to Ball v Axten, where the defendant, who struck at a dog which was barking at him, was held liable to the plaintiff whom he accidentally hit when she intervened to shield her dog. SC Johnson’s response may be understandable in the circumstances, but nonetheless it cannot be said that the exercise of ordinary care and skill on his part could not possibly have prevented the physical contact. In suddenly and forcefully closing the door as he did in the way of the respondent’s course, it cannot be said that he was “utterly without fault”, even though he might not incur liability in negligence.

4. [113]

   In my judgment, therefore, the defendant did not negative fault and, subject to the defence of contributory negligence by intoxication, considered below, liability for battery was established.

Intoxication

1. [114]

   The trial judge did not consider the defence of contributory negligence by intoxication, which was pleaded and which, given that s 3B was not engaged, required consideration.

2. [115]

   CLA s 50 provides as follows:

3. [116]

   In the present context, invocation of this provision requires consideration of the following issues:

   1. (1)

      Was the person, at the time of the act or omission that caused his injury, intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired? If not, the section does not apply [s 52(1)].

   2. (2)

      If yes, is the court satisfied that the intoxication was not self-induced? If so, the section does not apply [s 52(5)].

   3. (3)

      If yes to (1) and no to (2), is the court satisfied that the injury, or some other injury, is likely to have occurred even if the person had not been intoxicated? If not, no damages are recoverable [s 52(2)].

   4. (4)

      If yes to (3), is the court satisfied that the person’s intoxication did not contribute in any way to the cause of the injury? If so, there is no reduction for contributory negligence [s 52(3)].

   5. (5)

      If no to (4), should the reduction for contributory negligence be the mandatory 25%, or more?

4. [117]

   In one sense, there is no room for doubt that the respondent was intoxicated at the time of the act or omission that caused his injury. When apprehended, at about 13:20, he was observed to be unsteady on his feet when being taken to the police vehicle. He was in the holding cell at approximately 14:00, and the incident occurred at 14:11; as has been noted, almost two hours later, at 16:00, his blood alcohol concentration was still .2257g/100mll.

5. [118]

   However, the question is whether he was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired, and that depends on the particular circumstances of the case, and in particular the activity in which the person was engaged at the time of the relevant act or omission. In Amanda’s On the Edge Pty Ltd v Dries, [102] Allsop P (as his Honour then was) explained:

6. [119]

   Here, Mr Ouhammi was (relevantly) engaged in no more than the activities of being a prisoner, confined in a cell (which was presumably designed to be safe for all manner and condition of persons in custody to be confined in it). He was not driving a motor vehicle, or operating machinery, or engaging in a dangerous activity requiring a high degree of judgment. He was not even engaged, as was the plaintiff in Amanda’s v Dries, in walking over open ground to get to a destination. The care and skill required of him was no more than that required to be confined in a robustly safe cell. I am not satisfied that his indisputably high level of intoxication was such that his capacity to exercise reasonable care and skill in those circumstances was impaired. Accordingly, I do not accept that s 50 is engaged.

7. [120]

   Nonetheless, lest that conclusion be incorrect, I will consider the other issues.

8. [121]

   There is no suggestion that the intoxication was other than self-induced.

9. [122]

   Section 50(2) refers not only to “the injury”, but also to “some other injury”.

10. [123]

    Again, in one sense, it is clear that the injury would not have occurred if the respondent were not intoxicated, because but for his intoxication he would never have been arrested and would not have been in the police station, let alone in the dock. Again, however, that is not what the Act means: as s 50(1) makes clear, it directs attention to the act or omission that caused the injury, being the direct (or proximate) cause of the injury, [103] and so is concerned with the effect of intoxication at the time of the act or omission that caused the injury, rather than antecedent intoxication which may have resulted in the plaintiff being in the circumstances in which the injury occurred. Here, the relevant act was the act of SC Johnson in closing the door.

11. [124]

    In Jackson v Lithgow City Council, [104] Allsop P (with whom Basten JA and Grove J agreed) adverted to the requirement to reconcile s 50(2) and (3) in a manner which allow both to work:

12. [125]

    The Second Reading Speech closely followed the Explanatory Note, [105] which stated:

13. [126]

    It is plain from s 50(3) that the section contemplates circumstances in which the Court will on the one hand (for the purposes of s 50(3)) not be satisfied that the person’s intoxication did not contribute in any way to the cause of the injury, yet will be satisfied (for the purposes of s 50(2)) that the injury (or some other injury) is likely to have occurred even if the person had not been intoxicated. In my view, s 50(2) contemplates a situation where the defendant’s act or omission is a sufficient cause of the accident, independently of the plaintiff’s intoxication, while s 50(3) catches the situation in which, although the defendant’s act or omission was itself a sufficient cause of the accident, it is not established that the plaintiff’s intoxication did not also contribute to it.

14. [127]

    If, as SC Johnson indeed maintained he believed to be the case, Mr Ouhammi was endeavouring to exit the dock, by walking through the door, the act of slamming the door as he did so was very likely to come into contact with some part of his body – whether his foot, his arm, his torso or his head – as he moved into the doorway, thereby occasioning injury, even if it might have been a less serious injury than in fact occurred. Accordingly, in my view, for the purposes of s 50(2), “some … injury” would likely have been occasioned to the respondent, even if he had not been intoxicated.

15. [128]

    It is not possible to be satisfied that the plaintiff’s intoxication did not contribute in any way to the cause of the injury, and so (if s 50 is, contrary to my view, engaged) his damages would have to be reduced, pursuant to s 50(4), by at least 25%.

16. [129]

    Given the dominant role of SC Johnson’s voluntary act in slamming the door, I see no occasion to increase the assessment of contributory negligence above 25%.

17. [130]

    As I am not satisfied that Mr Ouhammi’s indisputably high level of inebriation was such that his capacity to exercise reasonable care and skill in the particular circumstances – namely being imprisoned in a small cell – was impaired, s 50 is not engaged. If it were, being satisfied that “some … injury” would likely have been occasioned to Mr Ouhammi even if he had not been intoxicated, but not being satisfied that his intoxication did not contribute in any way to the cause of the injury, his damages would be reduced by 25% but, in the circumstances, no more.

Conclusion

1. [131]

   I agree with Basten JA and Simpson AJA that the trial judge, having explicitly found that the defendant did not intend to cause injury to the plaintiff, erred in failing to consider the defences under CLA that were pleaded (relevantly, and in particular, contributory negligence by intoxication), and in assessing damages at common law, rather than under the CLA. I also agree with Basten JA that if liability were established, the plaintiff’s injuries would not exceed 23% of a most extreme case, so that (before any deduction for contributory negligence) the resultant award would be 5% of the maximum permissible amount, or $30,625, rounded to $30,500.

2. [132]

   I agree with Simpson AJA that the onus of negativing fault was borne by the defendant. However, I do not consider that CLA s 5B defines what for that purpose constitutes “fault”; what a defendant is required to show is not merely that there was no breach of a duty of care, but (at the least) that the exercise of ordinary care and skill could not possibly have prevented the physical contact.

3. [133]

   Although SC Johnson may not have been negligent, and his response may be understandable in the circumstances, nonetheless it cannot be said that the exercise of ordinary care and skill on his part could not possibly have prevented the physical contact and ensuing injury. In suddenly and forcefully closing the door as he did in the way of the respondent’s course, it cannot be said that he was “utterly without fault”, even though he might not incur liability in negligence. Liability is therefore established.

4. [134]

   As I am not satisfied that Mr Ouhammi’s indisputably high level of intoxication was such that his capacity to exercise reasonable care and skill in the particular circumstances – namely being imprisoned in a small safe dock – was impaired, CLA s 50 is not engaged. (If it were, being satisfied that “some … injury” would likely have been occasioned to Mr Ouhammi even if he had not been intoxicated, but not being satisfied that his intoxication did not contribute in any way to the cause of the injury, his damages would be reduced by 25% but, in the circumstances, not more).

5. [135]

   Mr Ouhammi is therefore entitled to damages in the amount of $30,500.

6. [136]

   It follows that, in my opinion, leave to appeal should be granted, the appeal allowed in part, and in lieu of the judgment for $82,000, there should be substituted judgment that the defendant pay the plaintiff $30,500. Conformably with the condition to which the State submitted, the State should pay Mr Ouhammi’s reasonable costs in this Court.

7. [137]

   SIMPSON AJA: This is an application for leave to appeal, and, if leave is granted, an appeal against orders made in the District Court awarding the respondent, Mohammed Ouhammi, the sum of $82,000 in damages for personal injury occasioned to him on 12 December 2011 while he was in the custody of the NSW Police Force. Leave is required because the proposed appeal involves less than $100,000: District Court Act 1973 (NSW), s 127(2)(c)(i). An appeal, if leave is granted, is governed by s 75A of the Supreme Court Act 1970 (NSW).

Background facts

1. [138]

   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.

2. [139]

   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.

3. [140]

   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.

4. [141]

   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:

5. [142]

   Senior Constable Johnson gave evidence that he thought that the respondent was trying to get out of the cell. He quickly closed the door. His purpose in doing so was:

6. [143]

   The respondent’s thumb was caught in the door and partially severed. He was taken to the Prince of Wales Hospital where he was treated for his injury. A partial amputation was performed.

7. [144]

   A large part of the incident was captured on closed circuit television which monitored the cell. The video footage was in evidence.

The proceedings at first instance

1. [145]

   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.

2. [146]

   The pleading of the statement of claim had some unusual features. It pleaded:

3. [147]

   The asserted negligence was further particularised as:

4. [148]

   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.

5. [149]

   The respondent claimed compensatory, and aggravated and/or exemplary damages.

6. [150]

   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”):

7. [151]

   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.

8. [152]

   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.

9. [153]

   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:

10. [154]

    It was the respondent’s case that the slamming of the door by Senior Constable Johnson on his thumb was:

11. [155]

    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.

12. [156]

    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:

13. [157]

    It is therefore apparent that an important preliminary issue for determination was whether Senior Constable Johnson had been shown to have intended to cause injury to the respondent. That finding would necessarily determine the subsequent course of the adjudication of the respondent’s claim and some of the applicant’s pleaded defences.

The primary judgment

1. [158]

   The primary judge opened his judgment by saying:

2. [159]

   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”.

3. [160]

   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:

4. [161]

   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.

5. [162]

   He did not elaborate on what the alternative options to which he alluded in [17] were. He found:

6. [163]

   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.

7. [164]

   The final issue to which his Honour turned his attention was the claim for exemplary or aggravated damages. In that context, he said:

8. [165]

   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

1. [166]

   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:

2. [167]

   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.

Consideration

1. [168]

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

2. [169]

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

3. [170]

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

4. [171]

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

5. [172]

   Section 5B provides as follows:

6. [173]

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

7. [174]

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

8. [175]

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

9. [176]

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

10. [177]

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

11. [178]

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

12. [179]

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

13. [180]

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

14. [181]

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

15. [182]

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

16. [183]

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

17. [184]

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

18. [185]

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

19. [186]

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

20. [187]

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

21. [188]

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

22. [189]

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

23. [190]

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

24. [191]

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

25. [192]

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

26. [193]

    The applicant argued:

27. [194]

    On behalf of the respondent it was submitted:

28. [195]

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

29. [196]

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

30. [197]

    Brownie AJA said:

31. [198]

    Hodgson JA said:

32. [199]

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

33. [200]

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

34. [201]

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

35. [202]

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

36. [203]

    The orders I propose are:

    1. (1)

       Leave granted to appeal.

    2. (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. (3)

       Appeal allowed.

    4. (4)

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

    5. (5)

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