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Easdale, Kirsty --- "Editorial: 'The intentional infliction of harm'" [2015] PrecedentAULA 54; (2015) 130 Precedent 2


By Kirsty Easdale

Intentional torts arise when a defendant acts with the intent to injure the plaintiff, or with substantial certainty that his action would injure the plaintiff. ‘Classic’ intentional torts include assault, battery and false imprisonment.

Modern tort law is not limited to the ‘classics’, however, but is evolving in step with social change. In this digital age, the argument for a tort of invasion of privacy is gaining more traction. The High Court has considered and left open the possibility of such a tort in Australian common law.[1] The Australian Law Reform Commission published Serious Invasions of Privacy in the Digital Era (ALRC Report 123) in September 2014. This report explored the common law’s treatment of this issue and how legislation might provide redress to victims of misuse of personal information by organisations, wrongful surveillance or a breach of confidence by previous partners. On a topical note, victims of online hacking, like the users of Ashley Madison, might conceivably find recompense in such a tort.

This edition of Precedent explores some of the novel issues raised in the litigation of intentional torts, including: proving intent, consent, impecunious defendants, battery in sport and the availability of damages.

The tort of malicious prosecution can assist in preventing the subversion of the legal system by holding those accountable who commence and maintain unsustainable civil and criminal proceedings, but as Dyson Hore-Lacey SC explores, substantial barriers must be overcome in order to prove a case in malicious prosecution. Hore-Lacey outlines the elements required to prove malicious prosecution and the difficulties in obtaining the evidence to support an assertion of malice.

Tina Cockburn and Bill Madden comprehensively outline intentional torts in medical cases through the prism of Dean v Phung [2012] NSWCA 223 and White v Johnston [2015] NSWCA 18, and the circumstances in which ostensible consent can be vitiated.

The utility in commencing an intentional torts action will often turn on the financial capacity of the defendant to pay a judgment. Liat Blacher and Lauren Freeman discuss the difficulties in bringing civil claims against members of the police force where a police officer has acted in excess of their duties. In such circumstances, the state may deny vicarious liability and the plaintiff may only seek redress from the individual officer involved. Bree Knoester provides practical guidance to solicitors who may be considering commencing proceedings against an uninsured defendant, and how a judgment might be enforced, once awarded.

The nexus between professional sport and battery has led to unique discussions of implied consent and vicarious liability. John O’Brien tackles the elements required to prove battery, potential defences and how the rules of the sport can determine the limits of implied consent. Neil Morrissey provides a detailed case note of Graves v West (No. 2) [2015] NSWSC, a recent decision on damages resulting from an assault during the course of a rugby union game. Robert Sheldon and James Lee discuss, with reference to recent decisions in this area, whether injuries suffered by a professional sports player during a game fall within the civil liability legislation, and the resulting limitations on damages.

Damages in intentional torts can serve a double purpose; to recompense the plaintiff for their losses, and to signal that society does not condone the intentional infliction of harm on others. Gerard Mullins and Susan Griffiths examine how, in the majority of States, intentional torts are exempt from the limitations on damages. John Purnell SC provides an update on the recent developments in the award of exemplary damages.

On the other side of the fence, Dean-Lloyd Del Monte explores some of the available defences to intentional torts, such as mistake, consent, inevitable accident, self-defence, defence of others and property and necessity. Steven Hausfeld sets out of the findings in Moon v Whitehead [2015] ACTCA 17, a case which has implications for claims of sexual assault and the defence of consent.

Lastly, Phillipa Alexander provides a timely update on indemnity costs orders in light of a series of NSW Court of Appeal decisions on point. Alexander also provides several useful reminders to practitioners making Calderbank offers or offers of compromise.

Kirsty Easdale is a solicitor with Colquhoun Murphy in the ACT and a member of Precedent’s editorial committee PHONE (02) 6248 0499 EMAIL

[1] Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 19.

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