Fede v Gray by his tutor New South Wales Trustee and Guardian

1. [1]

   McCOLL JA: The appellant, Ms Mary-Frances Fede, seeks leave to appeal against a decision of Sorby ADCJ finding for the defendant, Mr Walter Gray, in respect of Ms Fede’s claim for damages for battery. [1]

2. [2]

   By notice of contention filed on 29 June 2018, Mr Gray seeks to assert error in the primary judge’s conclusion that, if Ms Fede had been successful on liability, her damages would have been assessed at common law. This was because, in his Honour’s view, as the tort of battery was “an intentional act that is done by the person with intent to cause injury or death”, the effect of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) was to exclude the proceedings from the operation of the CLA. [2] In addition, the notice of contention sought to allege error in his Honour’s notional assessment of damages. The notice of contention was effectively superseded by a summons seeking leave to cross-appeal, and if leave was given, to rely upon a notice of cross-appeal effectively raising the same complaints as had the notice of contention.

3. [3]

   The applications for leave to appeal were heard concurrently with the appeal, with a view to the argument on the leave application being argument on the appeal if leave was granted.

4. [4]

   I would grant leave to appeal as, in my view, it is reasonably clear that an injustice has occurred by reason of error in the primary judgment, going beyond what is merely arguable. In addition, the matter involves issues of principle concerning the availability of a defence to the tort of battery where reliance is placed on the defendant’s mental health. [3] I would also grant leave to cross-appeal. The s 3B(1)(a) issue involves an issue of principle. It is linked to at least one of Mr Gray’s challenges to the damages the primary judge notionally awarded, while the other involved a clear error on the primary judge’s part.

5. [5]

   For the reasons that follow, I would allow the appeal, and allow the cross-appeal in part.

Factual background

1. [6]

   Ms Fede is a police sergeant who, at the relevant times, was an on-duty police officer stationed at Gulargambone Police Station. On the evening of 8 September 2014 and into the early morning on 9 September 2014, she and other officers detained Mr Gray pursuant to s 22 of the Mental Health Act 2007 (NSW) (MHA) and conveyed him to Gilgandra Hospital (GHS) for assessment. At the hospital, Mr Gray shoulder-charged Ms Fede while trying to escape. While being subdued and handcuffed, he lunged towards Ms Fede biting her right inner thigh through her pants and causing a substantial wound which left her leg scarred.

2. [7]

   Ms Fede brought proceedings against Mr Gray to recover damages on the basis of causes of action in assault and battery, as well as claims that Mr Gray had acted intentionally or, alternatively, had acted carelessly or recklessly. However, at trial, she relied solely on a claim in battery. [4]

3. [8]

   In her evidentiary statement at trial which was tendered as part of her evidence in chief, Ms Fede said that on 8 September 2014 she was conducting a patrol when she heard a loud scream at the rear of the police station. She came upon Mr Gray, whom she knew, who “appeared to be talking to someone to his right but there was no-one there”. [5] He was screaming at the top of his lungs and marching about. He ran away. Ms Fede drove to Mr Gray’s home at a nearby caravan park and spoke to his partner, Ms Kay McEwan, who warned her that he was having hallucinations (“God was speaking to him”) and that “[h]e has gone out to kill someone tonight”. [6] She said, “I think he has mental health issues and he needs help. Take him away.” She also told Ms Fede, “He’s been off the drugs for months now, that’s why we are back together. He has not taken any drugs in months.”

4. [9]

   Ms Fede returned to the police station, then heard another scream. She returned to the caravan park with another police officer and spoke to Mr Gray and his partner. Mr Gray told her he had been using cannabis (“two cones about an hour ago”) and that was why he was “seeing things”. He immediately contradicted that statement, saying: “I don’t know what the fuck you are talking about. I never said I smoke nothing”. Ms Fede said Mr Gray was not making any sense and kept coming out with comments she did not understand. Ms Fede requested an ambulance. Mr Gray initially refused to go with the ambulance officers until he was convinced by another officer, Senior Constable Hodges, to do so.

5. [10]

   At some stage, Ms Fede decided Mr Gray should be detained under s 22 of the MHA.

6. [11]

   Section 22 enables a police officer who finds a person who appears to be mentally ill or mentally disturbed to apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that, among other matters, it would be beneficial to the person’s welfare to be dealt with in accordance with the MHA, rather than otherwise in accordance with law.

7. [12]

   Mr Gray was taken to GHS at about midnight. Ms Fede completed a request for Mr Gray to be assessed as an allegedly mentally ill or mentally disturbed person at a declared mental health facility pursuant to s 22 of the MHA. She gave it to a Dr Thomas Kearney.

8. [13]

   An Emergency Department Clinical Record was prepared by a triage nurse in Gilgandra in relation to Mr Gray (exhibit J). Under the heading “Relevant assessment findings”, the nurse noted, “Pt restless, agitated. Coherent states his [sic, he’s] fine no hallucinations at this time.” The following page recorded “Pt stated he was stoned, yelling in street. Agitated on arrival …”

9. [14]

   Soon after Mr Gray first arrived at GHS, a psychiatric assessment of him was conducted by video link to a doctor associated with the Mental Health Assistance Line at Dubbo Base Hospital. Mr Gray sat calmly and was unguarded throughout this interview which lasted approximately 20 minutes. The door was kept ajar so the police could monitor him. Periodically he yelled to them to shut the door as it was a private conversation.

10. [15]

    The decision as to whether Mr Gray would be scheduled took some time and communications passed to and fro between GHS and Dubbo Base Hospital. At least part of that period of time appears to have been occupied by determining, as some hospital staff in Dubbo appeared to believe, whether managing Mr Gray was merely a police matter or whether he should be scheduled. On at least one occasion, Mr Gray tried to leave and was check drilled by Senior Constable Hodges.

11. [16]

    At about 2am, Mr Gray was observed to be muttering under his breath and his behaviour had deteriorated. He was assessed as being “violent and in need of immediate assessment”. [7] It was at this stage that Mr Gray was informed by Dr Kearney that he was to be kept for further observations and asked to take some sedatives to relax.

12. [17]

    Mr Gray then ran towards the closed smoke doors of the Accident and Emergency (A&E) department. Three police officers tackled him and a struggle ensued on the floor. Ms Fede sought to assist one of the officers handcuff him by holding Mr Gray down. She released him when she was told he had been “cuffed” at which stage he lunged forward and bit her on her right inner thigh.

13. [18]

    The finer detail of the incident appeared in Ms Fede’s police statement which the primary judge reproduced as follows: [8]

14. [19]

    Mr Gray’s legs were then handcuffed. Ms Fede noticed blood on her cargo pants where Mr Gray had bitten her. When she examined her leg in the bathroom, she was bleeding from the bite. On examination, it was apparent that Mr Gray had bitten a large piece of flesh from her thigh, leaving a wound approximately 1.5 centimetres in diameter. [9]

15. [20]

    At least one medication with apparent sedative effect was administered to Mr Gray while he was still being held on the ground. At this stage, he appeared partially to relax. He was carried back into the A&E room where he was placed against a wall in a seated position. He continued to assert that Ms Fede and her colleagues were trying to kill him. After administration of what appears to have been another sedative, he lay on the ground, at which point the handcuffs which had been placed on his legs were removed.

16. [21]

    At about 5am ambulance officers from Dubbo arrived at GHS. At this stage Mr Gray was “swearing and abusing everyone who was around him”. The ambulance officers refused to transport Mr Gray to Dubbo “on safety grounds”. Accordingly, he was taken there by police officers.

17. [22]

    Schedule 1 to the MHA is a pro forma medical certificate as to examination or observation of person (Schedule 1 certificate). Two such certificates were completed for Mr Gray on 9 September 2014, one by Dr Kearney, the other by Dr Kathleen Smith who was located at Dubbo Base Hospital, and who was apparently the doctor who had “examined” him via the video link.

18. [23]

    Dr Kearney certified that he had personally examined/personally observed Mr Gray for a period of 2 hours at GHS on 9 September 2014. The pro forma part of the certificate continued:

19. [24]

    Under paragraph 3 Dr Kearney wrote:

20. [25]

    Dr Kearney did not mark or delete any of the alternatives in the pro forma part of the Schedule 1 certificate to indicate his opinion as to which category of mental health condition applied to Mr Gray.

21. [26]

    In apparent anticipation of Mr Gray’s transfer to a mental health facility, or as a matter of record, Dr Kearney wrote a letter (exhibit F) to a doctor whose name is indecipherable which said:

22. [27]

    Dr Smith stated she had personally examined/personally observed him for a period of 20 minutes. She circled paragraph 1(a) of the pro forma part of the Schedule 1 certificate indicating her opinion that Mr Gray was mentally ill. Under paragraph 3, she stated:

23. [28]

    Under Part 2 of the Schedule 1 certificate, Dr Smith advised her opinion that police assistance should be obtained to transport Mr Gray to a mental health facility as he had a “long history of serious aggression with recent physical aggression”.

24. [29]

    Mr Gray was transferred to Bloomfield Hospital MHICU from GHS in a police vehicle. The Transfer/Discharge Summary of Bloomfield Hospital (exhibit H) recorded the reason for his referral/admission as “highly aggressive behaviour secondary to a presumed drug induced psychosis” and noted “collateral history from his wife revealed he had started smoking 2 bongs of marijuana 2-3 times a week for the past 8 months … She has noted a correlation between Walter’s unusual behaviour and with him smoking marijuana.” Exhibit H continued:

25. [30]

    The Bloomfield Hospital clinical notes of 10 September 2014 at 4pm (which were tendered by Mr Gray) recorded under the heading “Drug and Alcohol” an interview with Mr Gray in which he recounted his history of drug use. It included the following statement: “Wally was smoking cannabis nearly every day. He believes it makes him paranoid and crazy. Wally wants to stop use”.

26. [31]

    Mr Gray also tendered a statement from Senior Constable Bailey, one of the other police officers involved in the 9 September incident, which included his observations of Mr Gray at GHS between about 11.45pm – 12.30am:

27. [32]

    Although the Bloomfield Hospital’s records disclose Mr Gray was discharged into the custody of the police on 11 September 2014, that does not appear to be correct (alternatively he was given bail) as when he appeared before the Local Court on the charges to which I refer below, he was facing charges for both the offences committed on 9 September and others committed on 15 September. It appears he was in custody from the latter date until the sentencing hearing on his guilty pleas on 17 December 2014.

28. [33]

    On 27 November 2014 Mr Gray sent a letter to three police officers, including the appellant, “and other people involved in the incident on 09.09.2014 at Gilgandra”. Mr Gray describes this letter in his submissions in this court as “a letter of contrition”. The letter was tendered without objection in the course of Ms Fede’s evidence in chief. It stated:

29. [34]

    Mr Gray was charged with a number of offences in relation to the events of 9 September 2014 including assault and resist police officers in the execution of their duty. Two of those charges involved his actions in relation to Ms Fede. In particular, the assault charge was one of occasioning actual bodily harm. He was also charged with intimidating Ms Fede in the execution of her duty.

30. [35]

    In the course of the appeal hearing, the court admitted as exhibit 1 the court attendance notices (CANs) issued to Mr Gray in relation to these charges, the transcript of what appears to have been the sentencing hearing on his guilty pleas before Magistrate Price in Dubbo Local Court on 17 December 2014 and the record of the court orders. The documents were tendered by Mr Gray as relevant to the issue of exemplary damages should it arise.

31. [36]

    The transcript revealed that Mr Gray had, since 15 September 2014, been in custody for three months and one day. Although all the CANs tendered related to incidents on 9 September 2014, when he came to sentence, the magistrate referred to two discrete events, one on 9 September 2014, and the other on 15 September 2014. The latter appears to relate offences committed by Mr Gray of damaging property, assaulting a civilian, obscene exposure and a “language matter”.

32. [37]

    In the course of the sentencing hearing, Ms Mitchell who appeared for Mr Gray referred to “the letters which Mr Gray’s written to the victims … to each of the police officers and one in relation to the separate people who suffered.” She indicated to the magistrate that she had the previous day “forwarded the letter of apology to the police officers involved.” She also made the following submission:

33. [38]

    Insofar as the assault police, resist and intimidate police officers offences on 9 September 2014 were concerned, Magistrate Price sentenced Mr Gray to three months’ imprisonment commencing on 18 September 2014 and expiring on 17 December 2014.

Trial

1. [39]

   Mr Gray defended the proceedings brought by Ms Fede on two bases, first, that at all material times he was incapable of acting with any intent, and, secondly, that his act was involuntary. [11] The primary judge accepted the former submission, finding “that because of his mental condition the Defendant was unable to form the necessary intent to harm or injure the Plaintiff”. [12]

2. [40]

   Ms Fede’s evidence before the primary judge was primarily given in reliance on a statement she made to police on 10 October 2014. The primary judge accepted Ms Fede’s unchallenged account of the events. [13] Mr Gray did not give evidence.

Medical evidence

1. [41]

   Expert evidence was given at trial by two psychiatrists: Dr Patricia Jungfer, who was qualified by Ms Fede, and Dr Gary Larder, who was qualified by Mr Gray. Neither examined Mr Gray.

2. [42]

   Dr Jungfer was primarily qualified in the proceedings as a medico-legal expert to assess Ms Fede’s mental health consequent upon the injury Mr Gray inflicted. [14] However she was also asked to comment on Dr Larder’s reports, in the course of which she provided her opinion about Mr Gray’s state of mind at the relevant times. No issue was taken as to her fulfilling both roles. In turn, Dr Larder commented on Dr Jungfer’s reports.

3. [43]

   For the purposes of his first report dated 8 May 2017, Dr Larder had access to the further amended statement of claim, Ms Fede’s statement of evidence, Mr Gray’s treating records produced by GHS and Mr Gray’s COPS records for the 9 September 2014 incident and generally.

4. [44]

   In his first report, in response to a question asking him to express an opinion as to Mr Gray’s state of mind at the time of the incident, Mr Larder described Mr Gray as suffering from a “severe psychotic disturbance of mind”, such that his action in lunging and biting Ms Fede’s thigh “was not a voluntary act”. Given his “altered state of mind”, Dr Larder was of the opinion that Mr Gray “did not have the capacity to form intent to cause injury [sic, as in original]” to Ms Fede. His “state of psychosis was so severe that he was in effect ‘out of touch with reality’ … and harbouring ideas he was at risk of being killed by those who were trying to assist and care for him.”

5. [45]

   In her report dated 7 August 2017, commenting on Dr Larder’s first report, Dr Jungfer expressed the opinion that Dr Larder did not “identify that the presence of a psychosis does not mean that ultimately a person cannot commit a voluntary act”. In her view, Mr Gray’s conduct as described in Ms Fede’s statement indicated he was responding to what was happening around him, was capable of understanding what was occurring such that when the doctor said he was going to medicate him, he “made statements about being tried to be killed [sic, as in original] and then directed himself towards doors that were clear exits to the hospital”. He was not, in her opinion, “a person who was unaware of their actions and was behaving in an involuntary fashion”. She disagreed with Dr Larder’s opinion that Mr Gray was unable to form an intent to cause injury, as being inconsistent with the “multiple demonstrations of intentional behaviour immediately prior to the assaults and subsequently”.

6. [46]

   Dr Jungfer also disagreed with Dr Larder’s opinion that the fact he assessed Mr Gray as being psychotic meant he was unable to form intent. In her opinion, individuals with psychosis were still able to make decisions, to understand processes and rationally form, and enact, an action plan in a goal-directed fashion. She was also of the view that there was little evidence that when Mr Gray was at GHS he was exhibiting psychotic features, having regard to the fact that the mental health staff at Dubbo wished to release him and considered it a police matter. In her opinion, “the fact he was administered antipsychotics and detained for observation [was] not a sign that he [was] mentally ill, but rather that there [was] a suspicion of illness that required further evaluation.”

7. [47]

   In Dr Jungfer’s opinion, “the most likely cause of Mr Gray’s behaviour was initial drug intoxication when Sergeant Fede first spoke to him … and subsequently that his actions and behaviour and agitation were a manifestation of drug intoxication.” His reaction in GHS “was because he did not agree with the opinion of others that he required an assessment regarding the possibility of some form of mental health disturbance.”

8. [48]

   Dr Larder considered Dr Jungfer’s report in his second report dated 21 September 2017. He also had access to several police statements he did not have at the time of his first report, as well as medical records from Bloomfield Hospital. He noted that the GHS records stated Mr Gray had been detained under s 22 of the MHA for “auditory hallucinations, irrational behaviour and, aggressiveness”. Both Dr Kearney and Dr Smith who had assessed him considered he “exhibited psychotic behaviour – hearing voices from God, yelling uncontrollably in public with agitation” and should be scheduled pursuant to s 19 of the MHA. When he was eventually admitted to Bloomfield, the psychiatric registrar noted he had “auditory hallucinations, impaired insight and judgement and presented with a first episode of psychosis ‘? drug induced’,” was considered to have a major mental illness or disorder and was admitted to the mental health intensive care unit.”

9. [49]

   Dr Larder commented on Dr Jungfer’s opinion that Mr Gray was responding appropriately to his environment (including trying to escape after being offered medication). In his opinion, presence of a psychotic illness did not “preclude such functions, as they [are] well practiced, part of normal life ingrained over many years of practice, and any psychotic process may co-exist with the presence of such functions.” He reiterated his opinion that at the time he bit Ms Fede’s thigh, Mr Gray was “a ‘mentally disordered’ person who was psychotic and incapable of forming intent [sic, as in original] to cause injury or harm to others” and that that act “was not … voluntary given his altered state of mind”.

10. [50]

    In her report dated 28 September 2017, commenting on Dr Larder’s second report, Dr Jungfer reiterated her view that the fact that Mr Gray may have been experiencing psychotic symptoms did not indicate that he did not have the capacity to form the intent to act and that the presence of such symptoms was not necessarily the cause of his behaviour at GHS. [WB 332] She also reiterated that psychosis and directed intentional behaviour can co-exist and opined that Mr Gray had repeatedly demonstrated goal-directed behaviour prior to his containment at GHS and that him biting Ms Fede was intentional to him achieving the goal of not being detained.

11. [51]

    At trial, under cross-examination, Dr Jungfer accepted that Dr Kearney’s reference in his Schedule 1 certificate to “psychotic behaviour in hearing voices” satisfied the definitions of “mental illness” and “mentally disordered” in the MHA. She noted that “mentally disordered” is a global term whereas “mentally ill” has a narrower definition in the MHA. She agreed that the Dr Kearney and Dr Smith, having assessed Mr Gray, were best placed to determine whether he was suffering from a mental illness according to the MHA definition and accepted that Mr Gray could have been psychotic at the time, saying, “I don’t have a problem with saying there was a history to suggest he was suffering from psychotic symptoms. I would argue history indicates he did not have psychosis.”

12. [52]

    In the course of her cross-examination, Dr Jungfer accepted, too, that an explanation for Mr Gray’s “instant flight” on being told by Dr Kearney that he was going to be kept for further observations, could be that he was suffering from the effects of his psychosis which could “disturb your way of thinking”. She also appeared to accept the proposition that because according to the Schedule 1 certificate “he was hallucinating and had religious delusions”, that he was “particularly psychotic”. However, Dr Jungfer adhered to her opinion that being psychotic did not deprive Mr Gray of the capacity to form an intent to act. Her evidence was that “intent” is specific. She said that even a person suffering from delusions could still “form the intent to do a whole range of actions, and you need … to look at what is going on in the process”. She said that such a person would be conscious of what they were doing. Dr Jungfer also accepted that Mr Gray’s attempted flight while at GHS could indicate he was suffering from the effects of his psychosis.

13. [53]

    Dr Jungfer explained that psychosis is a response to an internal process. However, she did not assess Mr Gray’s agitation at GHS as being a response to such an internal process. Rather, in her opinion, it was a response to his perception that his civil liberties were about to be removed from him when he was told he was going to be detained. She said it was possible he was responding to a “very real fear in his own mind”.

14. [54]

    In Dr Jungfer’s opinion, the significance of the fact that Mr Gray had sat still for 20 minutes, unguarded and uncontrolled, while being interviewed via video link from GHS to Dubbo Hospital was that he could “assess the environment, he [could] make a decision and [could] direct his behaviour”. Further, the fact that when “they were trying to give him” something, he got up and ran away was “an indication of an intent to do something.” His agitation and his act of biting Ms Fede, in Dr Jungfer’s opinion, was in response to being told that he could not leave.

15. [55]

    In cross-examination, Dr Larder said that by the use of the phrase “not a voluntary act” in his first report, he did not mean “involuntary”. Rather, he meant that the bite “was an act produced by the abnormal state of mind that was occurring in Mr Gray at the time”. He did not consider that Mr Gray’s acts were “involuntary” in the sense of “done without conscious control”. He accepted that Mr Gray’s requests that the hospital and/or the police “let me go …” supported the view that he had made a conscious decision, whether rationally or irrationally, that he did not wish to remain at the hospital. He also accepted that irrational behaviour is not necessarily involuntary behaviour.

16. [56]

    In particular, Dr Larder accepted that Mr Gray’s action in attempting to escape by running towards the door was a conscious act or decision, and that when Mr Gray was restrained by four policemen, he “reacted in an angry manner that was not necessarily psychotic”. Dr Larder was of the view, however, that a person’s condition could “wax and wane”. His view was that “Mr Gray was acting very irrationally, repetitively over a period of hours, and at other times being calmer or more rational, and that underlying psychotic process persisted through that period of time, and that at times I think he was able to make conscious decisions, have a drink of water, go to the toilet …” He was of the opinion that, at other times, Mr Gray’s behaviour was “beyond his conscious capacities because it was being driven by a very serious abnormality of his mind”. He did not link either state of mind to any particular incident on 9 September 2014.

Primary judgment

1. [57]

   At the outset of his reasons, the primary judge noted that Ms Fede’s case was brought only in the tort of battery and that Weaver v Ward, [15] “established the test for trespass (and which has been applied by courts ever since) is that ‘no man may be excused of a trespass except that it may be judged utterly without his fault’.” [16]

2. [58]

   His Honour identified Mr Gray’s defence as being that at the material time he was incapable of acting with any intent; and that what he did in biting Ms Fede was involuntary. [17]

3. [59]

   His Honour then set out a large extract from Ms Fede’s statement describing Mr Gray’s behaviour at the hospital in the minutes up until she was bitten by him. [18] Those matters have been sufficiently set out when dealing with the background to the incident earlier in these reasons.

4. [60]

   After noting that Ms Fede was not challenged about her primary claim that Mr Gray bit her on her right thigh as described in her police statement, his Honour found on the balance of probabilities that he “did exactly that.” [19]

5. [61]

   The primary judge then turned to what he described as the “Mental health issues”. In this respect, he noted that Mr Gray argued that “the central issue from [his] position was whether … at the time he bit the Plaintiff on the thigh [he] ‘voluntarily and consciously’ decided to bite [her] or whether his ‘psychosis/psychotic’ symptoms impeded his ability to consciously form what [sic, that] intention.” [20]

6. [62]

   His Honour summarised Mr Gray’s behaviour prior to the biting incident, Ms Fede’s evidence of her observations of him at the caravan park, her completing the s 22 certificate, her observations of him at the hospital (including observing him being agitated, pacing and yelling) and he also set out the gist of Dr Kearney’s and Dr Smith’s Schedule 1 certificates. [21] Again, this is sufficiently recorded earlier in these reasons.

7. [63]

   His Honour then turned to Dr Larder’s reports. He noted his opinion that Mr Gray’s action of “lunging and biting the Plaintiff was not a voluntary act given his state of mind”. [22] His Honour then set out extracts from Dr Larder’s reports as follows:

8. [64]

   The primary judge also set out the following passage from Dr Jungfer’s 7 August 2017 report:

9. [65]

   His Honour then said:

10. [66]

    The primary judge dismissed Ms Fede’s alternate claim that Mr Gray acted recklessly because “the required knowledge of intent [was] absent from any possible count of recklessness”. [26]

11. [67]

    In the event he was wrong on liability, his Honour noted that “any damages awarded would be at common law or ‘at large’ as an ‘intentional act that is done by the person with intent to cause injury or death’ is excluded under s 3B(1)(a) of the Civil Liability Act of NSW.” [27]

12. [68]

    Had Ms Fede’s claim been successful, the primary judge would have awarded her for general damages, $20,000 for the bite wound and her concern about the possible transmission of hepatitis C; for economic loss, $10,000 as a general buffer for any time she may have be off work directly as a result of her bite injury and sequelae; and out-of-pocket expenses, $5000. His Honour would have rejected her claims for aggravated and exemplary damages. In the latter respect, his Honour said: [28]

13. [69]

    His Honour entered judgment for Mr Gray and ordered Ms Fede to pay the costs of the hearing and incidental thereto.

Issues on appeal

1. [70]

   The draft notice of appeal raises six grounds variously complaining about the primary judge’s treatment of Mr Gray’s defence. The appellant has summarised those grounds as raising the following issues:

2. [71]

   In addition, Ms Fede complains his Honour erred in failing to award her exemplary damages.

3. [72]

   Finally, Ms Fede complains the primary judge failed to give adequate reasons on both liability and exemplary damages.

Appellant’s submissions

1. [73]

   Ms Fede’s case on Mr Gray’s state of mind relies on three essential propositions. [29]

2. [74]

   First, Ms Fede notes that the primary judge did not uphold a defence based on “involuntariness”, but rather, held that “mental illness” by reason of the Mr Gray’s “psychosis” denied liability in tort. [30] Ms Fede submits that in so finding, his Honour erred in law. She submits that it is “well settled” that mental illness is not a defence to trespass to the person. She relies on the line of authority founded on Weaver v Ward that if “a lunatick hurt a man, he shall be answerable in trespass”. She contends the primary judge appears to have overlooked that principle in finding that Mr Gray was not answerable for the tort of battery because “he was suffering a mental illness ‒ namely he was psychotic ‒ and unable to form or make a reasonable decision to intentionally cause injury to the plaintiff”. She also criticises his Honour’s finding that “at the time the Defendant inflicted the bite wound upon the Plaintiff’s thigh, he was not acting either intentionally or negligently”. She argues that his Honour did not explain the rationale for either conclusion.

3. [75]

   Ms Fede submits that the difficulty with the primary judge’s reasons is highlighted by his Honour’s statement of Mr Gray’s case (at [8]) as a contest between a “voluntary and conscious” decision to bite her, or whether his psychiatric symptoms “impeded his ability to consciously form [that] intention”. She contends that is inconsistent with authority and it was an error on his Honour’s part to apply it in determining Mr Gray’s defence.

4. [76]

   Secondly, Ms Fede submits that the primary judge erred in addressing the case of recklessness in failing to follow the Weaver v Ward line of authority.

5. [77]

   Thirdly, Ms Fede submits that Mr Gray’s evidence did not support a defence of involuntariness. She relies on the fact that Dr Larder accepted that Mr Gray’s conduct was not involuntary, although he thought it was produced by an abnormal state of mind. She submits that the references in Dr Larder’s evidence to Mr Gray’s act of battery being “involuntary” are properly understood as references to them being in response to irrational fears, and, too, linked to Mr Gray’s anger at being restrained and detained. Furthermore, she points out Dr Larder accepted that even a person suffering from psychosis, hallucinations, and irrational behaviour, is capable of performing ordinary functions of normal life. She also submits that Dr Larder’s opinions are expressed by reference to a notion of voluntariness that does not accord with the relevant legal enquiry.

6. [78]

   Ms Fede accepts that Mr Gray was acting irrationally and was making statements which were consistent with him perceiving an unreal state of affairs. She contends the medical evidence supported the proposition that neither psychosis or irrational behaviour negatived volition. She points to Dr Jungfer’s evidence that she did not consider that Mr Gray lacked the capacity to form the intention to act and that the assault and battery upon her was intentional with a view to achieving the goal of not being detained. However, she argues that even if he was suffering from psychosis or irrational behaviour, and formed a view in that context to respond in a particular way, that was sufficiently done with intent to cause injury and death.

7. [79]

   Ms Fede also argues that a psychosis induced by the voluntary use of illicit drugs did not mean Mr Gray’s act could be described as “utterly without fault” in the Weaver v Ward sense.

8. [80]

   Ms Fede also submits in relation to Mr Gray’s guilty plea on 17 December 2014, that it was significant he did not rely on any aspect of mental illness or incapacity in the sense known to the criminal law, nor apply to have the matter dealt with under the Mental Health (Forensic Provisions) Act 1990 (NSW) by way of diversion for assessment and treatment. Ms Fede submits that, as an evidentiary admission, the absence of any such defence or application weighs heavily against an acceptance of the matters that Mr Gray seeks to agitate in this court.

9. [81]

   Ms Fede next submits that the primary judge erred in failing to accede to her Jones v Dunkel submission in light of Mr Gray’s failure to give evidence and in the absence of any explanation for that failure. She argues that his Honour ought to have inferred that the evidence that Mr Gray could have given would not have assisted his case, and also to have more readily inferred that Mr Gray’s state of mind was as Dr Jungfer postulated and Ms Fede contended, rather than as his Honour found.

10. [82]

    Ms Fede also submits that the primary judge fell into further error in failing to consider the oral evidence of the psychiatrists. She submits that, having made no reference to any oral evidence at all, the only available conclusion was that his Honour overlooked it. She argues that in failing to have regard to that evidence, the process of fact-finding miscarried, and the judgment on those matters was irretrievably flawed. [31]

11. [83]

    Alternatively, Ms Fede submits that the primary judge’s failure to make any reference at all to the oral evidence, or to the essence of Dr Jungfer’s evidence, discloses a failure to give any, or any proper, reasons disclosing the steps taken in arriving at his judgment which was an error of law requiring this court’s intervention. [32]

12. [84]

    Ms Fede makes much the same complaint in relation to the primary judge’s failure to refer to “the fact that the mental illness experienced by the respondent at the relevant time was the result of a drug-induced psychosis”. She argues that it is apparent that the primary judge overlooked this fact in his reasoning process. Again, she argues that the fact-finding process miscarried, alternatively, that his Honour failed to give reasons in this regard.

13. [85]

    As to the s 3B(1)(a) question whether her proceedings were governed by the CLA, Ms Fede submits that Mr Gray’s act was an intentional act driven by a conscious mind done by him “with intent to cause injury”. Accordingly, as to damages, she submits the primary judge did not err in assessing her damages without reference to the limitations on awards in the CLA, such as s 21, which bars a court from awarding exemplary damages where the act or omission that caused the injury or death was negligence.

14. [86]

    Ms Fede next submits that the primary judge erred in dealing with her claim for exemplary damages in that his Honour misstated the purpose of that head of damages, and seemed to regard them as being unavailable because they extend beyond ordinary compensatory principle. [33]

15. [87]

    Ms Fede submits that the circumstances in which she was injured warranted a substantial award of exemplary damages as she was the subject of a serious assault and battery, which saw her shoulder-charged into a wall by a man weighing 125kg, whose mental state was the result of self-induced intoxication with illicit drugs. She also argues that having regard to the purpose of exemplary damages, principle called for their deployment in a case such as this, where a drug-affected person viciously assaulted frontline emergency services personnel in the course of discharging their duty. She contends there was evidence of a long history of serious aggression, including physical aggression, on Mr Gray’s part (including after the incident on 9 September 2014) such as called for punishment, as well as specific and general deterrence.

16. [88]

    After exhibit 1 was admitted, Ms Fede submitted that Mr Gray’s 3-month sentence was not sufficient to preclude an award of exemplary damages. Further, she argues that an incident after 17 December 2014 when Mr Gray was arrested for breaching an apprehended violence order demonstrated the punishment did not achieve its purpose.

17. [89]

    She submits that she should have judgment for the damages assessed by the primary judge, together with an award of exemplary damages as assessed by this court.

18. [90]

    Ms Fede submits that Mr Gray should not be granted leave to cross-appeal in relation to the assessment of damages as the amount of damages involved is small, and there is no disputed issue of principle, no question of general public importance, and no clear injustice, in the sense of going beyond being merely arguable insofar as they are concerned.

Mr Gray’s submissions

1. [91]

   Mr Gray acknowledges that the primary judgment is “compact”. He submits, however, that the findings made by the primary judge were open to his Honour. To the extent that Ms Fede complains that the judgment is not sufficiently reasoned, Mr Gray contends it was implicit in the primary judge’s findings that his Honour was satisfied that he had, in all the circumstances, made out the defence that his actions were “not a voluntary act” due to his psychosis and that this court would be satisfied that the evidence supported the judgment in his favour.

2. [92]

   Mr Gray does not, however, contend that mental illness is a defence per se to battery, nor that his act was one of automatism. However, he argues that it constitutes such a defence having regard to his contention that when he bit Ms Fede, he was in a severe delusional and paranoid psychotic state and rendering him incapable of forming the intent to commit a battery on her. Rather, he argues, his state of mind was such that he believed that his life was imperilled by those who were trying to help him. [34] He argues his act of biting Ms Fede was not a voluntary one, but was linked to his delusional fear.

3. [93]

   Mr Gray submits that the primary judge specifically addressed the issue of his intention, finding he was unable to form or make a reasonable decision to intentionally cause injury and also that at the time he bit Ms Fede he was not acting either recklessly or negligently.

4. [94]

   Mr Gray submits that the primary judge did not err in accepting Dr Larder’s evidence that, at the time he bit Ms Fede, he “was in a very severe disturbed state of psychosis affecting his mind” and he lost the capacity to discern reality from unreality at the time of the incident, was fearful that his life was in jeopardy and was attempting to escape that threat. [35] He argues that Dr Larder’s evidence was inherently consistent with the contemporaneous records of the treating medical practitioners who diagnosed him as being psychotic, and that Dr Larder’s opinion was not affected relevantly by his cross-examination.

5. [95]

   Mr Gray submits that the primary judge’s findings, although variously expressed, are consistent in that he held that Mr Gray did not have the conscious capacity to form an intention to commit battery. He relies in this respect, as consistent with the conclusion that his act was not voluntary as it was not directed by his conscious mind, on the findings that he was “... unable to form or make a reasonable decision to intentionally cause injury to the Plaintiff”; [36] “... unable to form the necessary intent to harm or injury the Plaintiff”; [37] “... because of the state of his mind the Defendant was incapable of having the intent to injure or harm the Plaintiff …”; [38] and “... the required knowledge of intent is absent …”. [39]

6. [96]

   Mr Gray submits that Ms Fede’s submission that his “mental illness” was caused by self-induced drug psychosis or by self-induced intoxication with illicit drugs is ambiguous and inconsistent with contemporaneous records and is based on supposition.

7. [97]

   First, he notes that Ms Fede was informed by Mr Gray’s partner that he had been off drugs for months. Secondly, he points out that the scheduling documents prepared by Dr Kearney did not state that his psychosis was drug induced nor did the Bloomfield Hospital records contain any objective drug screening results that demonstrated that he had illicit drugs in his system. Thirdly, he submits that his statement to Ms Fede at the caravan park, “[s]o I’ve had two cones about an hour ago”, which he immediately contradicted, was made at a time when even on Ms Fede’s police statement, he was not making sense. He contended that the primary judge was unable, based on the evidence, to conclude that he had taken illegal substances and/or whether those illegal substances, if taken, were the cause for his conduct.

8. [98]

   Mr Gray submits that the letter of contrition and a discharge summary from Bloomfield Hospital, which diagnosed him with “[c]annabis intoxication and abuse with associated psychotic symptoms”, did not unequivocally establish that he was under the influence of illegal substances at the time of the incident and failed to have regard to the impact of his mental illness and pharmaceutical management of that illness on his recollections and memory. He pointed to Dr Larder’s evidence describing the known effects of psychosis and anti-psychotic sedation medication on memory retention.

9. [99]

   Further, Mr Gray submits that Pt 10, s 69 of the CLA applies to preclude use of the letter of contrition as an express or implied admission of fault or liability so far as the apology is concerned.

10. [100]

    Mr Gray submits that the primary judge’s Jones v Dunkel finding, although again succinct, is nonetheless correct. He argues his Honour’s conclusion was founded on contemporaneous records concerning his psychosis and, again, on with the amnesic effects of anti-psychotic and sedation medication which would have left him confused about the events and obliterated his memory. He contends that in circumstances where a witness lacks memory of an event no adverse Jones v Dunkel inference arises.

11. [101]

    Mr Gray next submits that the prerequisite for an award of exemplary damages is establishing the wrongdoer’s “intention”, and that there must be a “conscious wrongdoing in contumelious disregard of another’s rights”. He argues that the primary judge’s finding that he was psychotic at the time of the incident and was unable to make or form a decision to “intentionally cause injury” meant there was no basis for an award of exemplary damages.

12. [102]

    By his notice of contention (and the later notice of cross-appeal), Mr Gray submits the primary judge erred in finding that s 3B(1)(a) of the CLA was excluded and damages were to be assessed at common law or “at large”. He submits the question whether s 3B(1)(a) applies focuses upon the act itself. As the primary judge found he was unable to make or form a conscious decision to “intentionally cause injury” to Ms Fede, the conjunctive elements in s 3B(1)(a) of “an intentional act” which was “intended to cause injury”, were not made out.

13. [103]

    Assuming that submission is successful, Mr Gray submits Ms Fede’s claim does not reach the 15% threshold required by the CLA, s 16, given that her bite wound healed without complication by 4 November 2014. Mr Gray also argues the primary judge’s allowance of a general economic loss buffer was unjustified because there was no evidence that Ms Fede was likely to be off work because of the injury and sequelae.

Consideration

1. [104]

   In Weaver v Ward, Weaver brought an action of trespass of assault and battery against Ward. Ward pleaded he had accidentally shot Weaver while they were “squirmishing with their musquets charged”. Hobart LJ held “upon demurrer by the plaintiff, judgment was given for him”:

2. [105]

   Windeyer J explained the phrase “utterly without his fault” in McHale v Watson 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.” [40] His Honour quoted Bacon’s Abridgement, [41] where “under the heading ‘Trespass (D)’ it is said: ‘If one man have received corporal injury from the voluntary act of another, an action of trespass lies, provided there was a neglect or want of due caution in the person who did the injury, although there were no design to injure’ (emphasis added)”. [42]

3. [106]

   McHale v Watson concerned the liability of an infant in trespass (assault and battery) for causing injury to another infant by throwing a piece of metal which struck her in the eye. [43] Windeyer J held that the defendant child would be “liable for the consequences [of throwing the piece of metal], unless I am satisfied, on the balance of the probabilities, that he did not intend it to hit her and that he was not negligent in throwing it as and when he did.” [44]

4. [107]

   The essential elements of the tort of battery were considered recently by Leeming JA in Croucher v Cachia, [45] which both counsel at trial cited extensively to the primary judge, but to which regrettably he made no reference. As Leeming JA explained, battery is one form of trespass to the person, which is “conveniently and conventionally labelled as an ‘intentional tort’, in contrast with negligence”. [46] A “defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was ‘utterly without fault’.” [47]

5. [108]

   To be an intentional tort such as battery, the actor must intend the impact or contact with the victim. [48] However, “[t]o the extent that the tort of battery may require intent, it is enough that the defendant intends to do the act which constitutes the battery”. [49] It is the defendant who bears the onus of proving the battery was “utterly without fault”, that is to say that there was “absence of intent and negligence on the defendant’s part”. [50]

6. [109]

   In Croucher v Cachia, Leeming JA also noted that although battery is an intentional tort, it may occur when the defendant is merely negligent, or reckless. [51] As to what constituted recklessness, his Honour quoted, with apparent approval, Beazley P’s statement in State of New South Wales v McMaster, [52] that “[a]n act is reckless where the person foresees the likelihood of causing injury or fear but nonetheless, in acting, ignores that risk: … An act will not be reckless if the person does not advert to the consequences of the conduct concerned”.

7. [110]

   In Carrier v Bonham, [53] McPherson JA explained the difference between voluntary acts and involuntary acts as requiring the latter to be “considered not to be the act of the defendant at all”. His Honour regarded such involuntary acts as turning on “the presence of a state of automatism”, such as behaviour induced by a bee sting.

8. [111]

   The tort of battery was considered in Carter v Walker. [54] The critical issue for present purposes in that case was whether the common law allows for the recovery by secondary victims in respect of intentional torts, in that case battery, if they are within the foreseeable class of people likely to be damaged by the intentional tort. [55] In that context, the court set out what they understood the law with respect to battery otherwise to be in Australia as follows: [56]

9. [112]

   In Croucher v Cachia, [57] Leeming JA said of the doubt expressed in paragraph [215](8), that:

10. [113]

    The position appears to be otherwise insofar as Ms Fede seeks to recover damages not limited by the terms of the CLA. In this respect, Mr Gray seeks leave to cross-appeal to challenge the primary judge’s conclusion that, if he was incorrect on the liability issue, s 3B(1)(a) was engaged such that Ms Fede’s damages should be assessed at common law. [58] I would grant the leave sought as the issue is clearly one of principle.

11. [114]

    Section 3B(1)(a), CLA relevantly provides:

12. [115]

    In Croucher v Cachia, Leeming JA held that s 3B(1)(a) “does not operate upon the particular cause of action, but upon the particular act which gives rise to the civil liability and the intent of the person doing that act …”. [59]

13. [116]

    The primary judge, however, appeared to hold that it was sufficient that if his conclusion as to Mr Gray having committed the tort of battery was incorrect, that being an intentional tort, s 3B(1)(a) was engaged. Ms Fede contends that when one examined Mr Gray’s acts, s 3B(1)(a) was engaged. The consequence of Leeming JA’s analysis is that s 3B(1)(a) can operate differentially depending upon the plaintiff’s causes of action. A “cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent. The former would engage s 3B(1)(a) and the latter would not.” [60]

14. [117]

    The question posed by s 3B(1)(a) has two limbs: it is whether the proceeding involved the “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death ...” [61] Accordingly in order for s 3B(1)(a) to be engaged, it is necessary to establish not only that the defendant’s conduct was intentional, but also that the relevant conduct was undertaken “with intent to cause injury.” [62] The mere fact that an intentional tort is alleged and made out does not mean s 3B(1)(a) applies as, for example, “it is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff”. [63] It is the act and not the injury which must be intentional. [64]

15. [118]

    In Croucher v Cachia, Leeming JA observed that “[i]t is far from clear that conduct which is reckless, even if it amounts to an ‘intentional tort’ such as battery, engages s 3B(1)(a)”, although it was “perfectly clear that a battery which involves merely negligent conduct will not” having regard to the fact that “s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded.” [65] Ultimately his Honour did not find it necessary to determine the point as it did not arise either at trial or on appeal. [66] No point was taken in this case as to the application of s 3(1)(b) in the context of Ms Fede’s recklessness claim. In particular, while Mr Gray’s notice of contention/cross-appeal complained that the primary judge erred in finding s 3B(1)(a) was engaged, the submissions advanced on this point did not concern the issue of recklessness, nor, I would add, negligence.

16. [119]

    The consequence of this analysis is that the question whether Ms Fede’s damages fell to be assessed at common law turns on the question whether Mr Gray’s act in biting her leg was both intentional and was undertaken “with intent to cause injury”. [67] The question of who bore the onus in this respect has not been considered as far as my research reveals. Basten JA left the question open in Dean v Phung where the plaintiff conceded he bore the legal onus of establishing that s 3B(1)(a) applied. [68] I have proceeded on the basis that Ms Fede bore the onus in this respect.

17. [120]

    In this context, Ms Fede submits that if someone acting on delusions forms a view in that context of responding in a particular way, that is sufficiently done with intent to cause injury or death for the purposes of s 3B(1)(a).

Conclusion

1. [121]

   In my view the primary judge erred in finding Mr Gray had established his defence to Ms Fede’s claim.

2. [122]

   His Honour approached the question of Mr Gray’s state of mind at the time he bit Ms Fede at a high level of generality, reasoning that because he was “suffering a mental illness – namely he was psychotic ‒ and unable to form or make a reasonable decision to intentionally cause injury to the Plaintiff … that at the time the Defendant inflicted the bite wound upon the Plaintiff’s thigh, he was not acting either intentionally or negligently”.

3. [123]

   The primary judge held that Mr Gray’s defence was established because of the two Schedule 1 certificates prepared by Dr Kearney and Dr Smith and Dr Larder’s report’s consistency with the opinions expressed therein. In my view the primary judge erred in concluding that the “diagnosis” of those doctors, taken with Dr Larder’s opinion, discharged Mr Gray’s burden of proof that his actions on 9 September 2014 when he bit Ms Fede were not intentional.

4. [124]

   The highest Dr Kearney’s certificate reached was to certify the matters set out in the pro forma section, that Mr Gray was either a mentally ill or mentally disordered person and that “there are reasonable grounds for believing [Mr Gray’s] behaviour for the time being [was] so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of [him was] necessary”. This certificate was based on Dr Kearney’s observation that Mr Gray was manifesting “Psychotic behaviour – hearing voices from God. Yelling uncontrollably in public. Agitated++ ...”

5. [125]

   Dr Smith’s certificate did at least identify a view that Mr Gray was mentally ill, but it was apparent that was a tentative opinion based on “[r]ecent behaviour [being] consistent with auditory hallucinations and religious delusions, eg: talking to God … [and] [r]ecent aggression at the local pub”, but querying whether that conduct was “? Psychotically driven.” In addition it was apparent that Dr Smith was of the view Mr Gray’s conduct may relate to ice use despite his denial.

6. [126]

   Neither doctor was addressing in their Schedule 1 certificates the issue of whether Mr Gray’s acts were “voluntary” or “utterly without fault” in the sense raised by his defence when he bit Ms Fede’s leg. They were merely determining whether he was “mentally ill” or “mentally disturbed” for the purposes of s 19 of the MHA such that he should be admitted to a mental health facility. To the extent his Honour sought to support his reliance on the contemporaneity of the Schedule 1 certificates with Dr Larder’s opinion it is apparent he failed to perceive that the certificates did not address the critical issue.

7. [127]

   I would also uphold Ms Fede’s complaint that the primary judge’s exercise of fact-finding miscarried and, too, that he failed to give adequate reasons.

8. [128]

   There was a real conflict between Dr Larder’s and Dr Jungfer’s evidence as to the state of Mr Gray’s mind. That could not be adequately explained simply by preferring Dr Larder’s opinion, especially in circumstances where, as I have explained, it was not correct to say Dr Larder’s opinion elided with those of Dr Kearney and Dr Smith.

9. [129]

   In addition, there were important respects in which Dr Larder’s second report, in particular, and concessions he made in cross-examination, supported Dr Jungfer’s opinion that, even if Mr Gray was psychotic on the night, that did not mean he was incapable of forming the conscious intention to engage in goal-directed activities. His Honour failed to take this evidence into account.

10. [130]

    Indeed, his Honour failed to “engage with, or grapple or wrestle with, the cases presented by each party”. [69] He did not engage in any real analysis of the competing evidence apparently accepted and did not give any adequate explanation for rejecting Dr Jungfer’s opinions. [70] There being no issues of credit, the differences between the experts were “capable of being resolved rationally by examination and analysis”. [71]

11. [131]

    Neither party suggested there should be a new trial in the event the court was of the view the primary judge erred. In my view that was an appropriate position. There were no credit issues at trial. The court is in as good a position as the primary judge to exercise its rehearing function to determine the issues to which I now turn.

12. [132]

    In my view, when properly analysed, it is apparent that on the critical issue, whether Mr Gray’s act was voluntary, that is to say, directed by his conscious mind, Dr Larder and Dr Jungfer substantially agreed. Dr Jungfer’s principal thesis was that even if Mr Gray was experiencing psychotic symptoms, that did not mean that he could not engage in goal-directed intentional behaviour. As I have pointed out, in his second report, Dr Larder agreed that notwithstanding the presence of psychosis, Mr Gray could exercise functions were which “part of normal life”.

13. [133]

    Dr Jungfer’s evidence was that even a person suffering from delusions could form the intention to “do a whole range of actions” and would be conscious of what they would be doing.

14. [134]

    In cross-examination, Dr Larder said that he did not mean that Mr Gray had engaged in “involuntary” conduct in the sense of “acting without conscious control”. Indeed, he accepted that Mr Gray’s requests that he be “let … go” supported the view that he had made a conscious decision, whether rationally or irrationally, that he did not wish to remain at GHS.

15. [135]

    Critically, Dr Larder accepted that Mr Gray’s action in attempting to escape by running towards the door was a conscious act or decision, and that his angry reaction when restrained was not necessarily psychotic. It was, of course, during this attempt to escape that Mr Gray bit Ms Fede.

16. [136]

    I accept that Dr Larder framed his opinion in terms of suffering from a psychosis which affected how he acted. However, his concessions in cross-examination, in my view, demonstrate that Mr Gray’s conduct was not “involuntary” in the sense which would excuse his liability for battery. It could not be said “not to be [his] … act at all”. [72]

17. [137]

    In my view, taken as a whole, Dr Larder’s evidence supported Dr Jungfer’s in the critical respect that Mr Gray’s conduct in biting Ms Fede was voluntary, that is to say, directed by his conscious mind. [73] Once Mr Gray’s act was voluntary in that sense, and he “meant to … contact the plaintiff”, his conduct was relevantly intentional. [74]

18. [138]

    As to the s 3B(1)(a) question whether he acted “with intent to injure”, there can be no doubt that Mr Gray meant to make contact with Ms Fede when he bit her. There might be some equivocation in that respect if there was a possibility of accidental contact. However, there could be no question, in my view, that in opening his mouth and clearly closing it over a substantial portion of her thigh, he intended to injure her.

19. [139]

    These conclusions are sufficient to determine that Ms Fede should have succeeded on her claim of battery, and, too, that her damages were not limited by the CLA.

20. [140]

    I would also be of the view that, having regard to the intentional nature of Mr Gray’s act, s 3B(1)(a) is prima facie engaged insofar as the limb of that provision is concerned. I would also be satisfied that Mr Gray’s act was done “with intent to cause injury”. Such was, in my view, the inevitable consequence of his deliberate act in biting her, albeit through her trousers, but with such force as to tear her flesh.

21. [141]

    I would also be of the view insofar as the tort of battery is concerned that even if Dr Larder’s original view that Mr Gray was suffering “from a severe psychotic disturbance of mind”, such that his action in biting Ms Fede “was not a voluntary act”, was correct, it could not be said to be “utterly without fault” because it was apparent that the psychotic state was drug induced.

22. [142]

    While the early communications about whether or not Mr Gray had taken drugs on the evening of 8 September were equivocal, it is clear that by the time he was examined at GHS, first, Dr Kearney was told that Mr Gray had admitted to taking “two cones”, a description clearly used in relation to marijuana. Even if that were possibly information communicated to Dr Kearney by one of the police officers, it is apparent that he formed the view that Mr Gray’s behaviour was “consistent with methamphetamine”, more commonly known as ice, a drug Mr Gray was known to have used historically. [75]

23. [143]

    Further, once Mr Gray was transferred to Bloomfield Hospital, a treating environment, both he and his wife were more forthcoming about his drug use. Ms McEwan advised that he had been “smoking two bongs of marijuana two – three times a week for the past eight months and had noted a correlation between his unusual behaviour and that activity.” In addition, Mr Gray stated that his behaviour on the evening was from “smoking yandi”.

24. [144]

    Not surprisingly, the principal diagnosis at Bloomfield Hospital was “[c]annabis intoxication and abuse with associated psychotic symptoms.” That diagnosis appears to have been the most thorough one, based on Mr Gray being in a mental health facility, rather than in A&E.

25. [145]

    The following day, on 10 September 2014, the Bloomfield Hospital clinical notes recording an interview with Mr Gray included his advice that he was “smoking cannabis nearly every day … [and] believes it makes him paranoid and crazy.”

26. [146]

    In addition, Mr Gray admitted in the letter he wrote on 27 November 2014 that he had been on drugs on 9 September 2014. That admission is not affected by s 69 of the CLA because, as I have said, by virtue of s 3B(1)(a), none of the provisions of the CLA apply.

27. [147]

    In such circumstances, in my view, where Mr Gray was clearly conscious of the deleterious effect on him when he smoked “yandi”, and had clearly admitted to having done so on 8 – 9 September 2014, it could not be said that his actions in biting Ms Fede’s thigh were “utterly without his fault.”

28. [148]

    I would hold that Ms Fede established that Mr Gray committed the tort of battery when he bit her thigh. Save as to the issue of exemplary damages, Ms Fede is content to be awarded the damages the primary judge notionally assessed.

Jones v Dunkel

1. [149]

   Having regard to these conclusions, Ms Fede’s complaint that the primary judge erred in failing to draw the Jones v Dunkel inference for which she contended does not arise. However, I would express my view that his Honour also erred in this respect in concluding that it was a sufficient explanation for Mr Gray’s failure to give evidence that he was “suffering a mental illness” at the time of the incident. [76]

2. [150]

   It is apparent from the records to which I have referred that notwithstanding Mr Gray’s drug use and the administration of various medications, he was able to recount the events of the evening. Further, he was still able to give instructions concerning those events in late November 2014 and to the solicitor who appeared on his behalf on 17 December 2014. Although Dr Larder gave evidence to the effect that the drugs which were administered to Mr Gray could have an amnesiac effect, that surmise is not supported by the occasions on which it is apparent he was able to recall the events of the evening.

Exemplary damages

1. [151]

   The remaining issue on the notice of appeal is Ms Fede’s complaint that the primary judge erred in failing to award her exemplary damages.

2. [152]

   Exemplary damages are an exceptional remedy, [77] and are awarded rarely. There must be something more than a mere finding of fault. [78] Rather, exemplary damages are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.” [79] They are awarded where a defendant engages in conduct “variously described as ‘wanton and malicious’, as ‘conscious wrongdoing in contumelious disregard of the plaintiff’s rights’, as ‘outrageous’, ‘atrocious’, ‘vindictive’, ‘arrogant’, ‘high handed’ or ‘insolent’.” [80]

3. [153]

   In considering whether to award exemplary damages “the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged”. [81]

4. [154]

   Exemplary damages may not be awarded where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted. [82] A term of imprisonment would seem always to be regarded as “substantial” for these purposes. [83] A sentence unless appealed is presumed to be correct, and it should be assumed the sentencing judge has had regard to the purposes of sentencing prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW). [84] Once that has happened, the purposes for the awarding of exemplary damages have been wholly met. [85] Further, if exemplary damages were awarded in such circumstances, considerations of double punishment would arise. [86]

5. [155]

   If criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. [87]

6. [156]

   In my view Mr Gray’s conduct, while clearly very distressing for Ms Fede, cannot be described as being within the categories to which I have referred which would warrant an award of exemplary damages. When one focuses on Mr Gray, the consensus is that his behaviour was part of a flight response to the advice that he was to be detained against his will and injected with medication. As Dr Jungfer put it, it was a response to him realising he was being deprived of his civil liberties. Extreme, and conscious, as his behaviour was in biting Ms Fede’s leg, it was part of his spontaneous reaction of trying to escape that situation. While it was conduct of which one could not approve, [88] I would not characterise it as “conscious wrongdoing in contumelious disregard of [Ms Fede’s] rights”. On that basis, I would not be of the view that this should be one of the rare cases in which exemplary damages should be awarded.

7. [157]

   I am also of the view that the court “may not” award exemplary damages because the criminal law has been brought to bear upon Mr Gray and substantial punishment inflicted. The position in that respect is somewhat complicated because Mr Gray pleaded guilty to a number of charges arising out of the events of 9 September. However, it would undermine the criminal process for this court to seek to unravel the sentence to determine whether it was appropriate insofar as the assault charge in relation to Ms Fede was concerned. [89]

8. [158]

   Ms Fede did not otherwise seek to challenge the primary judge’s assessment of damages.

Cross-appeal

1. [159]

   As I have said, Mr Gray first filed a notice of contention, then, when that was challenged by Ms Fede, sought leave to cross-appeal. In my view Mr Gray needed to seek leave to file a cross-appeal because he seeks to vary the decision below by having the damages the primary judge notionally awarded reduced: Uniform Civil Procedure Rules 2005 (NSW) r 51.17. [90]

2. [160]

   Mr Gray did not seek to challenge the award of general damages if he was unsuccessful on his s 3B(1)(a) argument. However, he seeks to challenge the primary judge’s award of $10,000 by way of a general buffer for any time Ms Fede may be off work directly as a result of her bite injury and sequelae. [91]

3. [161]

   A “buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”. [92] Nevertheless in order to make such an award, the court still undertakes a comparison between the economic benefits the plaintiff derived from exercising his or her earning capacity before injury and the economic benefit derived from exercising that earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer. [93]

4. [162]

   The primary judge did not undertake that exercise. Ms Fede did not make any submissions in this court, or in her written or oral submissions at trial which would have enabled his Honour to do so. Mr Gray’s third ground of cross-appeal should be allowed.

5. [163]

   Despite this success, Mr Gray has succeeded on a minor aspect of the cross-appeal as to which there was little by way of written submissions and no oral argument. Ms Fede was otherwise successful on the cross-appeal. However the s 3B(1)(a) issue on which she succeeded was a matter as to which the court would have had to have been satisfied in any event to be able to allow her any of the damages the primary judge had notionally assessed. In those circumstances, in my view there should be no order as to the costs of the cross-appeal.

Orders

1. [164]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Direct the appellant to file a notice of appeal in the form of the draft in the White Book within 7 days.

   3. (3)

      Appeal allowed with costs.

   4. (4)

      Set aside the judgment entered in Mr Gray’s favour on 15 December 2017.

   5. (5)

      Enter judgment in Ms Fede’s favour in the amount of $25,000 plus pre-judgment interest at the rates referred to in Practice Note DC (Civil) No 15, such judgment to take effect on 15 December 2017.

   6. (6)

      Mr Gray to pay the costs of the trial.

   7. (7)

      Grant the respondent a certificate under the Suitor’s Fund Act 1951 (NSW) if qualified.

   8. (8)

      Grant leave to cross-appeal.

   9. (9)

      Direct the cross-appellant to file a notice of cross-appeal in the form of the draft in the White Book within 7 days.

   10. (10)

       Cross-appeal allowed in part.

   11. (11)

       No order as to the costs of the cross-appeal.

2. [165]

   BASTEN JA: On the evening of 8 September 2014 Sergeant Fede, whilst on duty at Gulargambone Police Station, came across the defendant, Wally Gray behaving bizarrely. After making inquiries, she decided to apprehend him under s 22 of the Mental Health Act 2007 (NSW), on the grounds that he appeared to be mentally ill or mentally disturbed. He was taken to Gilgandra Hospital, a declared mental health facility for the purposes of the Mental Health Act. At the hospital he became aggressive and was restrained with both handcuffs and ankle cuffs. Whilst being restrained on the ground, he lunged at Sergeant Fede and bit her on the thigh through her clothing.

3. [166]

   In 2016 Ms Fede commenced proceedings in the District Court seeking damages for battery. On 15 December 2017 the trial judge (Sorby ADCJ) dismissed the claim and gave judgment for the defendant. He concluded that, at the time of the injury, the defendant was in a delusional and paranoid state and unable to form the necessary intent to harm or injure Ms Fede. He concluded that Mr Gray was “not acting either intentionally or negligently”, because he was suffering from a mental illness at the time of the incident. [94]

4. [167]

   Damages were contingently assessed in an amount of $35,000. Ms Fede therefore required leave to appeal from the dismissal of her claim. [95] There is no doubt that she seeks to raise an issue of general importance as to the availability of a defence of mental illness to the tort of battery; further, the contention that the primary judge was wrong in law is more than merely arguable. Indeed, for the reasons indicated below, the judge was partly wrong in law. Accordingly, there should be a grant of leave to appeal.

5. [168]

   The matter of principle involves the place of mental illness in the law of tort in New South Wales. Is it the case that a person who is unable to understand the nature and quality of his or her conduct which leads to harm to another is liable in damages for that harm? If not, is that because the elements of the cause of action are not established, or because there is a relevant defence available to the defendant?

Battery: nature of cause of action

1. [169]

   As noted by Edwin Peel and James Goudkamp [96] there are two main schemata used to classify torts. The first adopts a threefold classification of liability, namely (i) torts that require proof of a state of mind, (ii) torts that are susceptible to commission by negligence and (iii) torts that impose liability regardless of whether or not the defendant is at fault. The second schema refers to the rights which the tort seeks to vindicate, namely (i) bodily integrity, (ii) possession of tangible property, (iii) reputation, (iv) economic relations, and others. It is clear that battery vindicates a right to bodily integrity; the question is whether it involves any particular state of mind on the part of the tortfeasor.

2. [170]

   It is common to describe battery as an “intentional tort”; however, this labelling should be approached with some caution, as explained by Leeming JA in Croucher v Cachia. [97] The description of the tort as “intentional” is curious because it includes any act which causes physical contact with another person, whether the contact is intended or merely negligent. [98] As Peel and Goudkamp note, “wherever there is liability for negligence there must also be liability for intentional harm; indeed, liability for intentional wrongdoing is, and probably should be, wider than that for negligence.” [99] In Croucher, it was not necessary to consider further what was meant by the term “intentional”, except in relation to the application of the Civil Liability Act 2002 (NSW), which, as was also noted in Croucher, does not use the term “intentional tort” but does refer to an “intentional act”. [100]

3. [171]

   The use of the term “intentional”, in ordinary parlance, implies an act which is at least voluntary, and done with an understanding as to its nature and quality. If that usage be accepted, then the term “intentional tort” is a misnomer and battery is in fact a form of strict liability. Indeed, because negligence depends on harm resulting from conduct which fails to comply with an objective standard of reasonableness, it too may be considered a tort of strict liability. Neither is concerned with the actual state of mind of the actor, but merely with whether, in the case of battery, there is a direct infliction of harm on another person.

4. [172]

   Although the issue has been considered in only a handful of cases, and not always coherently reasoned, authority supports the view that the common law does not award damages by reference to moral culpability, but on the basis of causation of harm. Thus, in Carrier v Bonham, [101] a patient who had absconded from a hospital with the intention of committing suicide, being a chronic schizophrenic, stepped in front of a bus. The driver, who was unable to stop the bus before it hit the defendant, suffered mental harm. The trial judge found that the defendant’s mental illness had robbed him of the power of rational thought and that he was unable to appreciate that what he was doing was wrong, or that it might cause harm to the plaintiff. The question was whether, in such circumstances, the defendant was liable in accordance with the principle in Wilkinson v Downton [102] for the intentional infliction of mental harm on the plaintiff, or whether he was liable in negligence. Holding that the defendant was liable under either cause of action, McPherson JA stated:

5. [173]

   After a review of authorities, to some of which reference will be made below, McPherson JA concluded that the defendant’s “mental condition had no effect on the standard of care owed by him to the plaintiff, which, on the contrary, is to be judged by the standard of the ordinary and reasonable person, and that it did not diminish or reduce his liability in negligence to the plaintiff.” [103]

6. [174]

   There are three further matters in the elucidation of principle in Carrier which should be noted. First, McPherson JA addressed the different approach under Roman law, which required culpability before imposing civil liability.

7. [175]

   The first sentence of this passage should be qualified in that the civil law systems do not speak with one voice. James Goudkamp has noted that the Roman law exemption from liability applies in Japan, Quebec and Poland, but that France and Switzerland adopt the common law rule, while Germany exempts the mentally disordered person from liability if the victim can obtain compensation from a third party who had a duty of supervision. [104]

8. [176]

   Secondly, McPherson JA considered whether the liability of a mentally disordered person might be affected by the common law approach to the liability of young children. In McHale v Watson [105] the High Court held that the duty of care owed by a child was to be assessed, not by reference to any characteristic of the individual child, but by reference to the capacity for foresight or prudence of the normal child of that age. Referring to the objective standard for civil liability in negligence, Kitto J stated: [106]

9. [177]

   That the standard of reasonable care in assessing negligence of an adult driver was not lowered by the inexperience of a learner driver was affirmed by the High Court in Imbree v McNeilly, [107] decided after McHale (and indeed Carrier).

10. [178]

    McPherson JA in Carrier considered that the same approach as that adopted in McHale with respect to the capacity of a child could not be adopted with respect to someone suffering a mental incapacity.

11. [179]

    The argument from the variety of the condition and the difficulty of identifying a “normal” version of the incapacity, is difficult to characterise. While it is true that all humanity goes through stages of development, it is not true that all children have similar capacities for foresight and prudence at a particular age. The universality of the condition seems unpersuasive as a justification for a legal distinction, whilst the difficulty in identifying normality applies in both situations, albeit in different respects.

12. [180]

    The third matter discussed by McPherson JA reflects an understanding that the position adopted by the common law is not merely historical but is justified as a matter of social policy. Thus, McPherson JA concluded his reasoning in Carrier with the following statement:

13. [181]

    The opening of this passage appears to involve a careful rejection of the reasoning of Denning LJ in White v White, which was quoted with apparent approval by McMurdo P in Carrier. [108] Where a person had committed civil wrongs at a time when he was not known to be a lunatic, Denning LJ asked: [109]

14. [182]

    Of course, it might equally be asked whether a person and his family should be rendered destitute by an act for which the person could not be said to be blameworthy and in circumstances where the injured person was insured. If there are still policy decisions to be made, they are not assisted by resort to rhetorical questions, as McPherson JA recognised. On the other hand, one may also question the value of resort to arguments based on presumed benefit to the mentally disordered defendant. They are discussed by Goudkamp as “[t]he avoidance and deinstitutionalisation arguments” [110] and dismissed as unpersuasive.

15. [183]

    Further, as Goudkamp has noted, there are many areas of the law, including the criminal law, where allowance is made for a lack of “basic responsibility.” [111]

16. [184]

    After a careful assessment of the common law and the alternative approach, Goudkamp concluded that “[t]he stronger position is that insanity should be a tort defence.” [112] However, questions of justification aside, the conclusion as to the common law adopted in Carrier v Bonham should be accepted by this Court.

17. [185]

    In Carter v Walker [113] the Victorian Court of Appeal identified a number of elements of the tort of battery. Relevantly for present purposes they included the following: (i) the act of the defendant must involve physical contact with the plaintiff; (ii) the act must be voluntary, that is, directed by the defendant’s conscious mind; (iii) the defendant need not intend the plaintiff any harm; (iv) 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; (v) “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”. [114]

18. [186]

    For the proposition that the act must be “voluntary, that is, directed by the defendant’s conscious mind”, the Court cited established authority including Weaver v Ward, [115] discussed below. It follows that a person will not commit a battery if he or she makes contact with another person while sleepwalking or suffering convulsions in the course of an epileptic fit. So much should be accepted.

19. [187]

    For the proposition that the defendant “meant to contact the plaintiff”, reliance was placed upon language used by Fox J in McNamara v Duncan, [116] a case in which one player struck another in the course of a football game. Fox J found that the striking was intentional in the sense that the defendant “meant to do it”, but did not suggest that such a finding was necessary in order to make good a cause of action for battery. The issue was whether the conduct fell outside that which was to be expected in the ordinary run of the game.

20. [188]

    With respect to foreseeability and recklessness, the statement in Carter relied upon a passage in Trindade, Cane and Lunney, The Law of Torts in Australia. [117] However, it is by no means clear that the Australian authorities support the conclusion that there is any element additional to the need for a voluntary act in the sense that “the defendant must consciously bring about the bodily movement that results in contact with the plaintiff”. [118] The North American cases referred to by McPherson JA in Carrier tend to support the same approach. [119] The cases dealing with battery do not justify the proposition that there is any element beyond the general intention involved in a voluntary act.

21. [189]

    In Croucher v Cachia, Leeming JA stated that “[a] cause of action in battery may be established where the defendant’s conduct is either intentional or alternatively merely negligent.” [120] However, the next sentence identified the former category as engaging s 3B(1)(a) of the Civil Liability Act, which requires a specific intention to cause injury. In a later passage Leeming JA stated that, with respect to a finding of battery, “[t]he critical question was Mr Croucher’s state of mind.” [121] Again, as the following discussion demonstrated, this statement occurred in the context of consideration of a possible defence of self-defence.

22. [190]

    Ultimately, there is no suggestion in Carter that the Court was seeking to qualify the reasoning in Carrier. There is no such qualification in Croucher.

23. [191]

    It remains to note two provisions in the Civil Liability Act. Section 3B(1) identifies a number of circumstances in which the provisions of the Act do not apply. In particular, they do not apply to the “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death …”: s 3B(1)(a). It is noteworthy that “intent” is used in two senses in this provision: first, it is used with respect to an act, rather than a tort; secondly, it is used in a sense which invokes an actual or specific subjective intention.

24. [192]

    The other provision is s 52(1), which precludes liability arising from “any conduct of the person carried out in self-defence”. The limitation on that immunity is that the conduct to which the person was responding was either “unlawful” or “would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct”: s 52(1)(b). This provision assumes that there may be circumstances which may induce a person to act in self-defence where the aggressor’s conduct is not unlawful because he or she suffered from a mental illness at that time.

25. [193]

    The reference to mental illness in s 52(1)(b) might be explained if “unlawful” referred only to criminal conduct, rather than extending to tortious conduct. That is because an assault or battery will only be criminal if accompanied by a relevant state of mind. The conclusion in State of New South Wales v McMaster [122] that “unlawful” includes tortious conduct as well as criminal conduct was reached without consideration of the operation of subs (1)(b). As noted by Leeming JA in Croucher, this reading can give rise to “complexities”, [123] being matters which did not need to be resolved in Croucher, nor in the present case. However, it remains necessary to ask, what are examples of the conduct falling within the assumption?

26. [194]

    The answer to the question must lie in the elements of the cause of action. The common law position has derived historically from a brief report of a claim in trespass to the person in 1616, namely Weaver v Ward. [124] This case involved a soldier engaged in a training exercise who accidentally discharged his firearm, wounding a colleague. Against a defence of unintended accident, and accepting that no criminal liability arose, the Court said:

27. [195]

    Although this passage appears to state an absolute principle of liability, it also identifies exceptions which extend to involuntary acts and inevitable accident. The exceptions thus encompass what, in the criminal law, is described as automatism because “the act or conduct in question is considered not to be the act of the defendant at all”. [125] It was also described in Carrier as “an unwilled or involuntary act”, referring to The Queen v Falconer. [126] In Falconer, applying a provision in the Criminal Code (WA) dealing with responsibility, but guided by common law principle, Mason CJ, Brennan and McHugh JJ stated: [127]

28. [196]

    Recognising that such a state could arise where a person established an unsoundness of mind reducing his or her mental capacity, the joint reasons continued: [128]

29. [197]

    In Carrier v Bonham McPherson JA stated that “[s]uch a condition is regarded in law as in a different category from the states of mind that constitute insanity.” [129] However, “insanity” is not a technical term and is not language used in either the Mental Health Act, or in the psychiatric reports in this case. Nor does it elucidate any principle to treat “insanity” as equivalent to the 17th century language of being “a lunatick”.

30. [198]

    In the context of the present case, the language of intention is satisfied by a conclusion that the general intention to bite was not involuntary. It may have been motivated by the delusion that Mr Gray thought himself in physical danger if he remained in the hospital, and was seeking to escape. That delusion did not, however, render his biting either involuntary or in the nature of an inevitable accident. Accordingly, the authority, limited as it is, applicable in Australia, does not allow the finding of the trial judge to exclude liability in the tort of battery. The appeal with respect to liability should therefore be upheld.

Application of Civil Liability Act

1. [199]

   There is a separate question as to whether the Civil Liability Act governed the assessment of damages in such a case. That turns on the operation of the two elements in s 3B(1)(a), namely whether there was an “intentional act” and whether there was an “intent to cause injury”.

2. [200]

   The trial judge concluded, based on the psychiatric evidence, that “at the time the defendant bit the right thigh of the plaintiff he was suffering a mental illness – namely he was psychotic – and unable to form or make a reasonable decision to intentionally cause injury to the plaintiff.” [130] Although there is some ambiguity in this language, it is sufficient that it excludes any specific intent to cause injury; the evidence did not support a finding that the biting was involuntary.

3. [201]

   The plaintiff challenged this finding on the basis that it was not justified on the medical evidence, and because the factual basis of the medical findings were not supported by evidence from the defendant, calling in aid the principle in Jones v Dunkel. [131] The inference sought to be drawn from the plaintiff’s absence from the witness box was that he had no answer to the indications that his psychosis was drug-induced. That inference may be accepted; however, the challenge was directed to the question of liability and whether, in the language of Weaver v Ward, his conduct was “entirely without his fault.” What the appellant did not explain was the relevance of that conclusion to the operation of s 3B(1)(a) of the Civil Liability Act.

4. [202]

   Once the question of liability is disposed of, the focus upon s 3B(1)(a) gives rise to a different question, namely the defendant’s subjective state of mind at the time of the offending, rather than his earlier conduct. The offending conduct was no doubt consistent with a drug-induced psychosis, which, in turn, was consistent with the lack of an intent to cause injury. There was no submission that the language of the statutory provision required an assessment as to the reason for any absence of the requisite specific intent.

5. [203]

   The appellant’s challenge to the finding with respect to the medical evidence also focused on the question of liability and the acceptance by the trial judge of the evidence of the defendant’s psychiatrist that the action of “lunging and biting the plaintiff was not a voluntary act given his state of mind.” [132] The appellant’s case was that the psychiatrist had resiled from that position in the course of cross-examination. [133] However, that concession did not undermine either the proposition that the defendant was suffering from a psychosis, or the conclusion that he was not able to formulate the specific intention to cause injury required to engage s 3B(1)(a).

6. [204]

   Although the plaintiff at trial vigorously challenged aspects of the defendant’s psychiatric evidence, there was ample evidence based on descriptions of the defendant’s conduct immediately prior to the biting, his state when assessed by the scheduling psychiatrist, and the likelihood of his behaviour being drug affected, to justify the conclusion that he did not have the capacity to form the specific intention to cause injury.

7. [205]

   Indeed, there appears to have been little attempt in the course of the trial to direct attention to the scope of s 3B(1)(a). In assessing damages on the basis that the substantive provisions of the Civil Liability Act did not apply, the judge made a contingent finding, not on any specific basis as to the defendant’s state of mind, but simply on the basis that his own finding as to liability was erroneous in some respect.

8. [206]

   Because the biting was intentional in the sense of being a voluntary act, the first limb of the provision was satisfied. However, because the judge found that the defendant did not understand the nature or quality of his act, he concluded that the defendant did not “intentionally cause injury to the plaintiff.” There being no basis to reject that finding, the second limb of s 3B(1)(a) was not satisfied and the assessment of damages should therefore have been governed by Pt 2 of the Civil Liability Act.

9. [207]

   The Act was not applied to the assessment of damages. Had it been, no damages could have been awarded for non-economic loss unless the severity of the loss was at least 15% of a most extreme case. There was no finding to that effect, nor was the basis for such a finding apparent in the circumstances revealed by the plaintiff’s evidence or her medical evidence. Accordingly, pursuant to s 16 of the Civil Liability Act, no amount should have been allowed for non-economic loss.

Other heads of damages

1. [208]

   I agree with the reasoning of McColl JA for rejecting the appellant’s claim for exemplary damages. I also agree with the reasons of McColl JA for upholding the respondent’s challenge on the cross-appeal to the amount awarded by way of a buffer for future economic loss.

Conclusion

1. [209]

   Accordingly, although the trial judge was incorrect in failing to find for the plaintiff on the question of liability for the tort of battery, the ultimate result was correct in that she was not entitled to a judgment in damages, except for the unchallenged amount of $5,000 for out of pocket expenses.

2. [210]

   Consistently with these reasons I would make the following orders:

   1. (1)

      Grant leave to Ms Fede to appeal and grant leave to Mr Gray to cross-appeal.

   2. (2)

      Allow both the appeal and the cross-appeal.

   3. (3)

      Direct that the appellant and cross-appellant file the draft notices of appeal and cross-appeal within 14 days.

   4. (4)

      Set aside orders (1) and (2) made in the District Court on 15 December 2017.

   5. (5)

      In place thereof give judgment for the plaintiff (Ms Fede) in an amount of $5,000.

   6. (6)

      Make no order as to the costs in the District Court or in this Court.

3. [211]

   MEAGHER JA: I agree with the reasons and proposed orders of Basten JA.