Defences to Intentional Torts – Duty and Intoxication
The recent decision of Hannam v State of New South Wales (No 9)  NSWSC 648 (Hannam) provides a useful update on how courts approach defences to negligence and intentional tort claims in the context of violence (or perceived violence) and intoxication.
The plaintiff suffered injuries to his brain, spine and legs when he jumped from a balcony of a fourth-floor apartment. The plaintiff was at the premises with friends and had been consuming alcohol and MDMA over a 12 hour period.
NSW Police had been called to the premises in response to the plaintiff’s threatening behaviour and, at the material time, were attempting to prevent him from jumping.
Immediately prior to the incident, one of the attending officers witnessed the plaintiff placing his foot on the seat of a table near the balcony railing. Another officer, concerned that the plaintiff would jump, used his taser, although it (initially) did not activate. An officer then charged at the plaintiff in an attempt to stop him from going over the balcony railing, however the plaintiff jumped. While the plaintiff was falling, the taser activated.
The plaintiff brought a claim against the State of New South Wales (State) being vicariously liable for the conduct of police for battery and assault and in negligence.
Decision of her Honour Adamson J
The plaintiff accepted that her Honour was bound by authority to find that the police did not owe a duty to the plaintiff where the police were exercising their duties as police officers in respect of the plaintiff (see Tame v New South Wales1). However, the plaintiff nonetheless maintained his claim in negligence against the possibility that, on potential appeal, the High Court might find - departing from earlier authority - that the police owed a duty of care to the plaintiff in the present case.
Even assuming a duty was owed, Adamson J considered that the plaintiff would fail on causation under s 5D of the Civil Liability Act (CLA). Her Honour confirmed that the plaintiff had not established that the police would, or could, have done anything differently in the short-term preceding the incident that would have produced a different result.
The State accepted that the striking of a person with a taser barb (even without the intended neuromuscular incapacitation) amounted to a battery. However, the State argued it acted lawfully consistent with the decision of Leeming JA in Croucher v Cachia2 who held that a defendant who directly causes physical contact with the plaintiff will commit a battery unless the defendant proves it was ‘utterly without fault’.
The plaintiff submitted, with reference to the words ‘utterly without fault’, that there was an additional element which the State was required to prove in its defence to battery. Adamson J rejected this submission noting the decision of Beazley P in State of New South Wales v McMaster3 whom determined that if the use of force was lawful under s 230 of the LEPRA, there was a complete defence to battery.
Adamson J was satisfied that the use of force (being the discharge of the taser) was lawful being pursuant to functions under ss 6(2) and 3(b) of the Police Act 1990 (NSW) to protect the plaintiff from harm and, was authorised under s 230 of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) (LEPRA), ss 22 and 81 of the Mental Health Act 2007 (NSW) and s 574B of the Crimes Act 1900 (NSW). Her Honour determined that this was a complete defence to the allegation of battery.
The intoxication defence under s 50 of the CLA was relied on by the State as an alternative defence to battery as well as to negligence. That defence is available where it is established that a person who suffered injury was, at the time of the act that caused the injury, intoxicated to the point that the person’s capacity to exercise reasonable care and skill was impaired. Her Honour accepted that, but for ingestion of MDMA, the plaintiff would not have experienced a significant thought disorder, and would not have gone out to the balcony or threatened to jump (before police arrived) and subsequently jumped or fall over the railing. Adamson J determined that the defence of intoxication under s50 of the CLA was made out and defeated the plaintiff’s claims in battery and negligence.
The State also raised self-defence pursuant to s 52(2) of the CLA which provides that a person carriet out conduct in self-defence if the person believes that the conduct is necessary to defend themselves, or another person, and the conduct is a reasonable response in the circumstances. Adamson J found that the State had established the officer’s discharge of his taser was necessary to save the Plaintiff from injuring himself. However, whist her Honour accepted the plaintiff’s conduct had been unlawful – consumption of an illicit drug and breach of the peace – the conduct to which the officer was responding was the plaintiff’s threat to throw himself from the balcony and neither suicide nor attempted suicide is unlawful.4 Accordingly, her Honour was not persuaded that the defence under s52(2) of the CLA had been made out. That being said, Adamson J considered that the State had made out self-defence at common law.
Section 54 of the CLA provides that criminals are not entitled to an award of damages. The Plaintiff’s criminal behaviour was his consumption of an illicit drug in contravention of s 12 of the Drug Misuse and Trafficking Act 1985 (NSW). Adamson J was satisfied that a defence under s 54 had also been made out.
Although Adamson J found against the plaintiff for his claim in negligence, her Honour considered that if the State was negligent, any liability would also be wholly defeated by the dangerous recreational activity defence under s 5L of the CLA finding that ‘the taking of illicit substances of unknown source, purity and composition is a dangerous recreational activity’. Further, given her findings that the plaintiff was wholly responsible for what occurred, her Honour considered that a 100% reduction for contributory negligence under s 5R was appropriate as ‘[the plaintiff] failed to take precautions for his own safety in a marked and extraordinary way’.
The decision of her Honour Adamson J confirms the current common law position as to the duty of care owed by police and provides useful insight into the application of defences to intentional torts and defences available under the CLA.
Presently, the common law appears to be settled as to the nature and scope of the duty of care owed by police. However, Hannam confirms there is an appetite to test the limited scope of this duty – although there has been no appeal of this decision. In future, an appellate court may accept that the duty owed to the public by police should be extended in certain situations.
Beyond the specific facts of this case, Hannam also provides helpful guidance as to the application of various defences available in tort cases involving illicit drug use which is particularly relevant noting increased recreational drug use but, also, the more frequent use of pain killers and opioids for non-medical purposes.
1 Tame v New South Wales (2002) 211 CLR.
2 Croucher v Cachia (2016) 95 NSWLR 117 [at 21].
3 State of New South Wales v McMaster (2015) 91NSWLR 666 [at 233].
4 Section 31A of the Crimes Act 1900 (NSW).
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.