Part 2 - Personal injury damages

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery. An issue which fell to be determined on appeal was whether the operation of s 21 of the Act was excluded under s 3B(1)(a).

It is not clear that conduct which is reckless – even if it amounts to an intentional tort such as battery – will engage s 3B(1)(a). A battery which involves merely negligent conduct will not engage s 3B(1)(a) because the section looks to the nature of the conduct found to occur rather than to the cause of action which has been pleaded.

Sections 3B(1)(a) and 20 operate upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct rather than whether the claim is in respect of an “intentional tort”. [33]-[35], [117]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v Ibbett [2005] NSWCA 445

Dean v Phung [2012] NSWCA 223

White v Johnson [2015] NSWCA 18