Linda Music v State of New South Wales

2025/00500403

TORTS (other) – on 30 September 2021, New South Wales police officers attended the appellant’s house after receiving a report from a representative of Allianz Insurance that the appellant was threatening to kill herself – after being refused entry to the premises by the appellant and her ex-partner, officers gained entry through an unlocked glass sliding door on the first-floor balcony and by kicking in the front door – the officers failed to locate the appellant on the premises so they conducted a search of the surrounding area with the assistance of a police helicopter and members of the Police Order and Riot Squad – they found the appellant hiding in a garden shed on a neighbouring property – after the appellant emerged from the shed, one of the officers (in the presence of several other officers) deployed capsicum spray against the appellant’s face – the appellant was thereafter handcuffed and transported in an ambulance to hospital, purportedly pursuant to s 22 of the Mental Health Act 2007 (NSW) – the appellant was discharged from hospital around 4 hours later after hospital staff determined that she was neither mentally ill nor at risk of self-harm – the appellant commenced proceedings against the respondent for battery, trespass to land and false imprisonment – as to damages for the alleged battery, the appellant contended that she had a pre-existing condition of post-traumatic stress disorder related to previous interactions with police which was aggravated by the application of the capsicum spray to her face – the respondent argued that the officers’ actions were lawful under the Mental Health Act and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and in relation to the battery claim, that the actions of the officers could not be found to have exacerbated the appellant’s post-traumatic stress disorder – further, there was a dispute as to whether any damages awarded should be assessed pursuant to the Civil Liability Act 2002 (NSW) (CLA) or common law – the primary judge held that the appellant made out her action in battery, but failed in her actions in trespass to land and false imprisonment – the primary judge further held that the battery claim was not excluded from the operation of the CLA by s 3B(1) of the Act and that the damages for battery were therefore to be assessed pursuant the CLA – the primary judge awarded damages to the appellant in the sum of $24,000 – whether the primary judge misconstrued the words “intent to cause injury” in s 3B(1)(a) of the CLA – whether the primary judge erred in his Honour’s assessment of damages for non-economic loss under s 16 of the CLA.

Music v State of New South Wales [2025] NSWDC 487