Intentional torts

Acknowledgement: the Honourable A Whealy QC, former judge of the Supreme Court of New South Wales, prepared the following material. Commission staff are responsible for updating it.

[5-7000] Trespass to the person — the intentional torts

This chapter is concerned with the torts of assault, battery, false imprisonment and intimidation. Closely allied with these is a further tortious action, namely proceedings to recover damages for malicious prosecution.

The three torts that emerged from the concept of trespass to the person — assault, battery and false imprisonment are actionable per se — that is without proof of damage (although if the wrongful act, does result in injury, damages can be recovered for that injury as well). In malicious prosecution proceedings, however, it is necessary to assert and prove damage.

[5-7010] Assault

An assault is any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person, either by the defendant or by some person or thing within the defendant’s control: K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011 at 44 (“Barker et al”).

The gist of assault has been stated in J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998 (“Fleming”) as focusing on the apprehension of impending contact. Thus, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or means to follow it up. The intent required for the tort of assault is the desire to arouse an apprehension of physical contact, not necessarily an intention to inflict actual harm.

In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, the plaintiff was an excluded gambler who had unlawfully returned to the casino to play roulette. Employees of the casino saw him and identified him as an excluded person. He was approached and accompanied to an “interview room” where he was required to remain until police arrived sometime later. Mr Rixon unsuccessfully sued for damages for assault, battery and false imprisonment. In relation to the assault issue, the facts were that a casino employee had placed his hand on the plaintiff’s shoulder and, when he turned around, asked him: “Are you Brian Rixon?”. These actions were central to the question as to whether Mr Rixon had been the victim of an assault and, in addition, a battery.

Sheller JA (with whom Priestley and Heydon JJ agreed) stressed the distinction referred to in Fleming set out above. His Honour said that, on the facts of the case, the primary judge had been correct to find that the employee did not have the intention to create in Mr Rixon’s mind the apprehension of imminent harmful conduct. Moreover, the employee’s placement of his hand on the plaintiff’s shoulder did not constitute a battery. On the false imprisonment claim, the court found that the Casino Control Act 1992 and its regulations justified the plaintiff’s detention for a short period of time until the arrival of the police.

In State of NSW v Ibbett (2005) 65 NSWLR 168 the Court of Appeal upheld the trial judge’s factual findings while increasing the damages awarded. The circumstances of the case were that two policemen gave chase to Mr Ibbett, in the township of Foster, suspecting that he may have been involved in a criminal offence. They pursued him to a house where he lived with his mother, Mrs Ibbett. Without legal justification, one of the policemen entered the property and arrested Mr Ibbett. His mother came into the garage where these events occurred. The police officer produced a gun and pointed it at Mrs Ibbett saying, “Open the bloody door and let my mate in”. Mrs Ibbett, who was an elderly woman, had never seen a gun before and was, not unnaturally, petrified.

The trial judge held that both police officers had been on the property without unlawful justification and, additionally, the confrontation between the police officer and Mrs Ibbett was more than sufficient to justify the requirements of an immediate apprehension of harm on her part, so as to amount to an assault. The Court of Appeal agreed with the trial judge as later did the High Court. See also Clarke JA in Cowell v Corrective Services Commission (NSW) (1988)13 NSWLR 714.

[5-7020] Conduct constituting a threat

Although threats that amount to an assault normally encompass words, they will not always do so. For example, actions may suffice if they place the plaintiff in reasonable apprehension of receiving a battery. As to words, in Barton v Armstrong [1969] 2 NSWR 451 a politician made threats over the telephone and these were held to be capable of constituting an assault. Given the explosion of modern methods of media communication, there is no reason why threats made in emails, text messages or on Facebook (so long as they satisfy the legal test) could not qualify. Importantly, the reasonable apprehension must relate to an imminent attack.

Note:

the requirement is for an imminent battery, not an immediate one.

[5-7030] Reasonable apprehension

This requirement means that an assault cannot be proved if the plaintiff is not aware of the threat. Moreover, the apprehension must be a reasonable one. Thus, if an unloaded gun or a toy pistol is pointed at the plaintiff, the defendant will not be liable where the plaintiff knows or has reason to believe that the gun is not loaded or is a toy: Logdon v DPP [1976] Crim LR 121.

[5-7040] Battery

A battery is a voluntary and positive act, done with the intention of causing contact with another, that directly causes that contact: Barker et al at p 36. See Carter v Walker (2010) 32 VR 1 at [215] for a summary of the definition of “battery”.

Battery cases (often wrongly referred to as “assault cases” — although the two often go hand in hand) are mainly heard in the Local Court. Inevitably, they involve difficult factual disputes requiring the resolution of widely conflicting versions as to what happened during a particular occasion or event, whether domestic or otherwise.

The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the plaintiff. The defendant need not know the contact is unlawful. He or she need not intend to cause harm or damage as a result of the contact.

A person who pulls the trigger of a rifle believing it to be unloaded may be found to be negligent, but will not be liable in trespass, because they did not intend that the bullet from the rifle should strike the injured plaintiff. The requisite intention will have been absent.

In most cases, it will be apparent that an intention to make contact can simply be inferred from the nature and circumstances of the striking. If I strike someone with an axe, it will be apparent, except in the most unusual circumstances, that I intended to make contact with the injured person.

A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery unless the defendant proves the absence of intent and negligence on their part, that is, that the defendant was “utterly without fault”: Croucher v Cachia (2016) 95 NSWLR 117. This case is also authority for the proposition that ss 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead 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”.

[5-7050] Contact with the person of the plaintiff

Contact, as has been pointed out by academic writers (Barker et al at p 41), can take a variety of forms. Thus, spitting on a person, forcibly taking blood or taking finger prints would be regarded as contact. Similarly, shining a light into a person’s eyes will be regarded as contact: Walker v Hamm [2008] VSC 596 at [307].

The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery.

On the other hand, it is not every contact that will be taken to be a battery. People come into physical contact on a daily basis. For example it is impossible to avoid contact with other persons in a crowded train or at a popular sporting or concert event. The inevitable “jostling” that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at [53]–[54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ.

[5-7060] Defences

Defences to the trespass torts include necessity, for example, in the case of a medical emergency where a patient’s life is at risk and the obtaining of consent is not possible (Hunter New England Area Health Service v A (2009) 74 NSWLR 88); self-defence (Fontin v Katapodis (1962) 108 CLR 177); and consent.

In the case of self-defence in NSW, however, see Pt 7 of the Civil Liability Act 2002. This applies to any kind of civil liability for personal injury. The legislation places a restriction on the damages which can be awarded for disproportionate acts of self-defence. Reasonable acts of self-defence against unlawful acts will not be actionable at all.

In State of NSW v McMaster [2015] NSWCA 228, the NSW Court of Appeal affirmed the availability of self-defence in the civil context. It will be made out if the defendant believed on reasonable grounds that what he did was necessary for the protection of himself, or another. The defendant’s response to the threat is a factor to be taken into account but is not inherently determinative.

The court also held that the term “unlawful” in s 52 Civil Liability Act extends to tortious conduct such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort.

[5-7070] Consent

An interference or injury to which a person has consented cannot be wrongful. It is the responsibility of the defendant, however, to raise a defence of consent and to prove it: Hart v Herron [1984] Aust Torts Reports ¶80–201 at 67,814. If the defendant proves that the plaintiff has consented to the acts in question then a claim in assault, battery (or false imprisonment) will not succeed.

[5-7080] Medical cases

Medical practitioners must obtain consent from the patient to any medical or surgical procedure. Absent the patient’s consent, the practitioner who performs a procedure will have committed a battery and trespass to the person. However, consent to one procedure does not imply consent to another. Subject to any possible defence of necessity, the carrying out of a medical procedure that is not the procedure, the subject of a consent, will constitute a battery.

In Dean v Phung [2012] NSWCA 223, the plaintiff was injured at work when a piece of timber struck him on the chin causing minor injuries to his front teeth. His employer arranged for him to see the defendant, a dental surgeon. Over a 12-month period, the defendant carried out root-canal therapy and fitted crowns on all the plaintiff’s teeth at a cost of $73,640. In proceedings between the plaintiff and the dentist, the latter admitted liability but asserted that the damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW). The trial judge accepted that submission, noting that the dentist had admitted liability in negligence but had denied liability for trespass to the person. Accordingly, damages were calculated in accordance with the formula in the Civil Liability Act 2002.

On appeal, the plaintiff claimed the primary judge had not adequately addressed the issue of trespass to person. His case was that the dental treatment had been completely unnecessary to address the problem with his teeth; and the dentist must have known that when embarking on the treatment. Advice that the treatment was necessary must have been fraudulent, consequently the fraud vitiated any consent given to the procedure. Accordingly, the plaintiff argued, the dentist was liable for battery in treating him without a valid consent. The Civil Liability Act 2002 s 3B excludes “civil liability … in respect of an intentional act that is done … with intent to cause injury”.

Basten JA (with whom Beazley JA agreed) held that “…the dentist probably did not believe at the time that he carried out the treatment that it was necessary…”. His Honour conducted a detailed examination of consent to medical treatment, including consideration as to who bore the burden of negativing consent. Basten JA at [61]–[64] expressed four principles supported by the authorities he had examined:

1. 

Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature of the proposed procedure. If however, it could be demonstrated objectively that a procedure of the nature carried out was not capable of addressing the patient’s problem, there would be no valid consent.

2. 

It is necessary to distinguish between core elements of the procedure and peripheral elements, including risks of adverse outcomes. Wrong advice about the latter may involve negligence but will not vitiate consent.

3. 

The motive of the practitioner in seeking consent will be relevant to the question whether there is a valid consent.

4. 

Burden of proof will lie on the practitioner to establish the existence of a valid consent where that is in issue.

Applying these principles, Basten JA held that the dentist’s concessions were sufficient to show that the appellant did not consent to the treatment because it was not necessary for his particular condition. As a result, the treatment constituted a trespass to the person and s 3B operated to exclude the defendant’s liability from the operation of the Act.

If, however, some kind of fraud were required to vitiate consent, Basten JA considered that the dentist at the least had been reckless as to whether the treatment was either appropriate or necessary. Consequently, on either basis, the plaintiff was entitled to have his damages re-assessed and, in the circumstances, increased.

Macfarlan JA differed from Basten JA in only one respect. His Honour did not accept that the dentist’s concessions that the treatments were unnecessary indicated of themselves that the treatment constituted a trespass to the person. However, Macfarlan JA accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either appropriate or necessary. The practitioner had performed the treatment to generate income for himself. This enabled a conclusion that consent was vitiated and a trespass had occurred.

In X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 the court was confronted with a difficult choice. A young man — only a few months away from his 18th birthday — had refused to receive his own treated blood products. The treatment was necessary to preserve his life. He had provided cogent reasons for his refusal, based on his religious beliefs. His refusal was fully supported by his parents who were of the same religious persuasion.

The court, exercising its “parens patriae” jurisdiction, essentially overrode these genuine beliefs, holding that the welfare of the patient required that the primary judge make the order permitting the treatment. The court acknowledged that, without the order, the proposed treatment would have constituted a battery upon the young man. The order was made, notwithstanding that in a few months time, the appellant would be, as an adult, entitled to refuse any further treatment for his condition.

[5-7100] False imprisonment

A false imprisonment is an intentional, total and direct restraint on a person’s liberty: Barker et al at p 48. As in the case of trespass to the person, there is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612 at [140], per Kirby J.

For example, where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest mistake, the defendant will nonetheless be liable for false imprisonment: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714.

[5-7110] What is imprisonment?

Traditionally the notion of false imprisonment related to arrest by police officers or other authorities. This is still a feature of the reported cases but the potential areas of “detention” have expanded remarkably, especially in recent times, not always however with success. The following cases provide a range of illustrations of this contemporary enlargement of the notion of “imprisonment”.

Watson v Marshall and Cade: In Watson v Marshall and Cade (1971) 124 CLR 621, a police officer asked the plaintiff to accompany him to a psychiatric hospital. The plaintiff believed he would have been compelled to go along if he had refused. The High Court held that the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go with the defendant. This restraint thereby imposed on the plaintiff amounted to imprisonment (per Walsh J at 625).

McFadzean v Construction, Forestry, Mining and Energy Union: In McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250, the appellants were a group of protesters who had engaged in a protest against logging in a Victorian forest area. The respondents imposed a picket near the site which made it impossible for the appellants to leave by the most direct route without permission. However, there was an alternative route available through the bush for exit purposes. There was also evidence that the protesters were anxious to remain at the site during the duration of the picket.

The Victorian Court of Appeal held that the appellants had remained in the forest, not primarily because of the respondents’ actions but rather for their own reasons — to continue their protest in an endeavour to stop the logging. They remained at the site, independently of the respondents’ conduct. Moreover, the court agreed with the trial judge that an alternative means of exit was both available and reasonable.

Whitbread v Rail Corporation of NSW: In Whitbread v Rail Corporation of NSW [2011] NSWCA 130, two brothers who were intoxicated and belligerent, attempted to travel from Gosford railway station in the early hours of the morning without tickets. There was an altercation between the two brothers and state rail transit officers. One of the transit officers was convicted of a criminal assault on one of the brothers. This assault occurred immediately before the officers made a so-called “citizen’s arrest”, the brothers were restrained by handcuffing and pinned to the ground until police arrived. The Court of Appeal agreed with the trial judge that the transit officers were entitled to “arrest” the brothers and that the degree of force used, and the duration of their being restrained, was not unreasonable. The brothers had been validly arrested and restrained because of their failure to comply with the transit officers’ lawful directions to leave the railway station. See also Nasr v State of NSW (2007) 170 A Crim R 78 where the Court of Appeal examined the issue of the duration of detention.

Darcy v State of NSW:Darcy v State of NSW [2011] NSWCA 413 demonstrates the width of the concept of imprisonment. The plaintiff was a young woman with severe developmental disabilities. She lived in the community but in circumstances where she had been in trouble with the police on occasions. Ultimately, the Local Court ordered that she be taken to Kanangra, a residential centre which accommodates and treats persons with intellectual and other disabilities, located in Morisett. The order required Ms Darcy to be taken there “for assessment and treatment”. The Department of Community Services intended that Ms Darcy should be returned to the community but difficulties of a bureaucratic and funding nature prevented this happening. Her case was an unusual one and, in the situation which developed, she remained at Kanangra for some six years before residential accommodation was arranged for her. The primary issue was whether the circumstances of her stay at Kanangra amounted to imprisonment. The secondary issue was whether the Public Guardian had consented to her remaining at the institution.

The Court of Appeal held that Ms Darcy had been detained at Kanangra. She did not wish to stay there and, while she had a relatively wide degree of freedom within the property, she was required to return there after any absence. The degree of latitude she had in being able to leave the premises, for example to visit her mother, was offset by the fact that she could only do so with permission, and on condition that she returned to the institute.

The court explored the issue of lawful justification for her detention at Kanangra. In this regard, the court, while acknowledging that the Public Guardian did not consent to Ms Darcy staying at the premises on a permanent basis, nevertheless consented tacitly to her remaining there while attempts were made to find her appropriate accommodation.

State of SA v Lampard-Trevorrow: In State of SA v Lampard-Trevorrow (2010) 106 SASR 331, the Full Court of the South Australian Supreme Court gave consideration to whether a member of the stolen generation, Bruce Trevorrow, had been falsely imprisoned. The circumstances were that, when he was about a year old, he was taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his parents knowing of the removal or the fostering. There was no maltreatment or issue of neglect or any other matter which justified the removal of the plaintiff from his family. The plaintiff lived in foster care until he was 10 years old. The Full Court unanimously held that, while neither the plaintiff nor his parents had consented to his foster placement, he was not falsely imprisoned during the period of his foster care. The fact that the plaintiff was an infant and needed care and nurture spoke against any finding of restraint. Any element of restraint, whilst he grew as a young child, was solely attributable to the obligation of his foster parents to care for him and also attributable to his immaturity. The court said:

We do not think it realistic to describe the care and protection given by the carer of a child a restraint on the child, in the relevant sense of the term.

It is significant however that the plaintiff’s claim of negligence against the State was upheld by the appeal court.

State of NSW v TD: In State of NSW v TD (2013) 83 NSWLR 566, the respondent was charged with robbery and assault with intent to rob. Her fitness to be tried was in doubt and a special hearing under the mental health legislation in New South Wales was held. A District Court judge found, on the limited evidence available, that she had committed the offence of assault with intent to rob. His Honour set a “limiting term” of 20 months and ordered that she be detained at Mulawa Correctional Centre. The Mental Health Review Tribunal determined that the respondent was suffering from mental illness. Accordingly, the District Court judge then ordered that the respondent be taken to and detained in a hospital. Contrary to this order, for some 16 days, the appellant was detained in a cell at Long Bay Gaol in an area which was not gazetted as a hospital.

The Court of Appeal had to determine whether she was entitled to damages for unlawful imprisonment. The court held that, as a consequence of the second order made, it became the only lawful authority for the continued detention of the respondent. In these circumstances, the State could not justify her detention in the particular area of Long Bay Gaol where she had been held. The order required her to be detained in a hospital and this was the only relevant order which determined her place of detention. The mere fact that she could and should have been detained in another place did not prevent the detention being unlawful. Consequently, the necessary elements of the claim were established.

This decision may be contrasted with the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58. In that case, the House of Lords decided that prisoners lawfully committed to prison under the relevant legislation did not have a residual liberty which would entitle them to sue the Secretary of State for the Home Department or a governor of the prison if the prisoners were unlawfully confined in a particular area of the prison. However, in State of NSW v TD, the Court of Appeal held that the House of Lords’ decision was principally based on the terms of the legislation under consideration.

State of NSW v Kable: In State of NSW v Kable (2013) 87 ALJR 737, the High Court of Australia held that a detention order which had been made by the Supreme Court (but under legislation which was later held invalid) provided lawful authority for Mr Kable’s detention. The trial judge had held that the detention order was valid until it was set aside. The High Court agreed that the original detention order provided lawful authority for the respondent’s detention and allowed the appeal by the State against the orders made in the New South Wales Court of Appeal.

Hyder v Commonwealth of Australia: In Hyder v Commonwealth of Australia (2012) 217 A Crim R 571, the judgment of McColl JA contains a valuable discussion of the meaning to be given to the phrase “an honest belief on reasonable grounds”. The appellant had bought proceedings against the Commonwealth of Australia alleging that a federal police agent had arrested him without lawful justification and thereby falsely imprisoned him. There was no doubt that the police officer honestly believed that the respondent was a particular person of dubious background and that he had committed an offence for the purposes of the Crimes Act 1914 (Cth) s 3W. The critical issue at trial was whether the officer held this honest belief “on reasonable grounds”. Basten JA did not agree with McColl JA’s conclusion. However, Hoeben JA, the third member of the court, agreed with McColl JA that the officer’s belief was held on reasonable grounds. See also [5-7170] Justification.

The critical question turned upon the evaluation of the complex and thorough material obtained by the Australian Tax Office. The police officer relied on this information to form his belief that the respondent had been engaged in a fraudulent scheme. Hoeben JA also placed reliance on the surrounding circumstances and the source of information on which the officer had relied. His Honour agreed that the primary judge had not erred in concluding that the officer had reasonable grounds for his belief for the purposes of the Crimes Act 1914 s 3W(1).

Haskins v The Commonwealth: In Haskins v The Commonwealth (2011) 244 CLR 22, the High Court held that a member of the defence force who had been convicted by a military court of disciplinary offences and sentenced to punishment, including detention, could not succeed in a claim for false imprisonment. This was so notwithstanding that the relevant provisions of the Defence Force Discipline Act 1982 subsequently had been held to be invalid. A majority of the High Court held that while serving members of the defence forces retained the rights and duties of the civilians, it did not follow that an action for false imprisonment would lie as between service members in respect of the “bona fide execution of a form of military punishment that could be lawfully imposed”: at [57]. This is one of those rare cases where the court considered matters of public policy in deciding whether a cause of action for this tort would be available. The court said at [67]:

To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force.

SU v Commonwealth of Australia In SU v Commonwealth of Australia [2016] NSWSC 8, Hamill J had to determine whether two immigrants in detention had been unlawfully arrested. There was no doubt the two men were properly “detained” as that expression is used in the Migration Act 1958 (Cth) s 5. However, they were taken from the detention centre in Darwin to the Sydney Police Centre where they were arrested and charged with offences under Migration Act 1958 s 233C(1) (Aggravated offence of people smuggling (at least 5 people)). They were refused bail and incarcerated in Silverwater Remand Centre. Hamill J held that the plaintiffs had been wrongfully imprisoned and were entitled to a verdict. The arrest was unlawful because no reason was advanced as to why the issue of a summons for their attendance at court would have been inappropriate: Crimes Act 1914 (Cth) s 3W. The use of the arrest power was not justified.

His Honour rejected the defendants’ contention that, as the two men were properly in immigration detention at the time, the “umbrella of legality” dictated that the detention was not unlawful even if there had been a breach of the mandatory provisions of the Crimes Act 1914 (Cth): at [29]. His Honour held that the plaintiffs were not detained in the police cells as a result of immigration detention. They were held there as a consequence of an unlawful arrest.

State of NSW v Le In State of NSW v Le [2017] NSWCA 290 the respondent was stopped by transport police at Liverpool railway station and asked to produce his Opal card. The card bore the endorsement “senior/pensioner”. He produced a pensioner concession card but could not supply any photo ID when asked. There was a brief interlude during which the officer checked the details over the radio. Mr Le was then told he was free to go. The respondent commenced proceedings in the District Court claiming damages for assault and false imprisonment. He was successful and the State sought leave to appeal in the Court of Appeal. The court held that all that was involved was “a brief interruption of the respondent’s intended progress … a temporary detention”. In this situation, the court’s task is to “assess what a reasonable person … would have inferred from the conduct of the officer.” In the circumstances, the court held that the officer was justified in detaining the respondent while the necessary checks were made. The appeal was upheld.

State of NSW v Exton In State of NSW v Exton [2017] NSWCA 294, the issue related to a police officer directing a young Aboriginal man to exit a motor vehicle. Eventually the young man was arrested and charged with assault and resist arrest. The trial judge awarded damages to the respondent, relying in particular on the police officer’s direction “to exit the vehicle”. The Court of Appeal disagreed with the trial judge’s finding that the direction, without more, constituted the arrest of the respondent. In the circumstances, this finding was not open and should not have been made.

[5-7120] Malicious prosecution

The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322.

The tort is, in forensic terms, quite difficult to prove. Its constituent elements were stated by the plurality of the High Court in an extensive decision on the topic in A v State of NSW (2007) 230 CLR 500 at [1]. These were succinctly reformulated by the High Court in Beckett v NSW (2013) 248 CLR 432 at [4] as follows:

…the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.

Beckett, above, has laid to rest an anomaly which had existed in Australian law since 1924. In Davis v Gell (1924) 35 CLR 275, the High Court stated that where proceedings have been brought to a close by the Attorney-General’s entry of a nolle prosequi, the plaintiff in a subsequent malicious prosecution case, is required to prove his or her innocence. The High Court, in Beckett, refused to follow Davis. The result is that, in all malicious prosecution cases, the plaintiff’s guilt or innocence of the criminal charge is not now an issue. All that must be shown is that the proceedings terminated favourably to the plaintiff, for example, where proceedings were terminated by the entry of a nolle prosequi or by a direction from the Director of Public Prosecutions under his statutory powers.

It might be noted that in Clavel v Savage [2013] NSWSC 775, Rothman J held that where a charge had been dismissed, without conviction, under the Crimes (Sentencing Procedure) Act 1999 s 10, this did not constitute a “termination of proceedings favourably to the plaintiff”. This was because the ultimate order had been preceded by a finding of guilt. See also Cameron v James [1945] VLR 113 for a similar view taken by the Full Court of the Victorian Supreme Court.

In HD v State of NSW [2016] NSWCA 85, the CA had under consideration a case where an interim ADVO was obtained by police against a father on behalf of his daughter. The evidence of a physical assault was reported to a friend, to a school teacher and the daughter was taken to hospital by ambulance and treated by doctors and social workers. Later she attended the local police station but denied she had been hit by her father. Nevertheless, the police initiated a serious assault charge against the father. The charge was dismissed in the Local Court, whereupon the father instituted proceedings for unlawful arrest and malicious prosecution. The trial judge dismissed all the father’s claims.

This decision was upheld by the CA. The prosecution was not activated by malice. Indeed the prosecution had no personal interest in the outcome and had been exercising a public duty. Secondly the trial judge had not erred in finding that the investigating police honestly concluded that the evidence warranted the institution of proceedings against the father. Thirdly, the whole of the circumstances demonstrated that this was not a case where there was an absence of reasonable and probable cause. This was not a case where a reasonable prosecutor would have concluded that the prosecution could not succeed. Reference was made to Gyles AJA’s decision in Thomas v State of NSW (2008) 74 NSWLR 34; [2008] NSWCA 316 which emphasised that a reasonable basis for a decision by an investigating officer to lay a charge is not to be equated with a magistrate’s decision or a judge’s ruling. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law.

In 2008 Gordon Woods was convicted of the murder of Caroline Byrne. He served a number of years in prison before the NSW Court of Appeal acquitted him on the murder charge. The court found that the verdict had been unreasonable. At the forefront of the decision was trenchant criticism of the Crown Prosecutor and the Crown’s expert witness.

The plaintiff brought proceedings for damages on the basis of malicious prosecution. (See Wood v State of NSW [2018] NSWSC 1247.) He argued that the proceedings had been maintained without reasonable and probable cause and that the prosecution had been brought “with malice for an ulterior purpose”. The plaintiff identified three prosecutors, namely the lead detective, the expert witness and the actual Crown Prosecutor.

Fullerton J agreed with the plaintiff’s contention that, from an objective point of view, the trial had been initiated and maintained without reasonable or probable cause.

Central to the Crown case had been the expert witnesses evidence that the deceased must have been thrown from the cliff to land where her body had been located. However, the theory and conclusion had been fundamentally flawed and left open the reasonable possibility of suicide. After an exhaustive analysis, Fullerton J concluded that neither the lead detective nor the expert witness could properly be categorised as “prosecutors”.

The primary judge was trenchantly critical of the Crown Prosecutor. She found that he had a profound lack of insight into the flawed approach he took to the plaintiff’s prosecution and that this caused great unfairness in the trial. Nevertheless, she dismissed the plaintiff’s case on the basis that the prosecutor’s failures, extensive though they were, were not driven by malice.

[5-7130] Proceedings initiated by the defendant

Who is the prosecutor? In A v State of NSW, (2007) 230 CLR 500, the plurality of the High Court gave a detailed and historical narrative of the development of the tort. In the past, informations were laid privately, whereas in modern times prosecutions are generally in the hands of the police and subsequent prosecuting authorities, such as the Director of Public Prosecutions.

There is a “large question” as to whether the tort of malicious prosecution extends to the commencement and carrying on of civil proceedings. In A v State of NSW, above, the High Court expressed the first element of the tort as being “that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant”. See also Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 at [16] in which an appeal against the dismissal of an action for malicious prosecution in civil proceedings was refused.

The present position may be best comprehended by contrasting the situation in that case (A v State of NSW) with the facts in Coles Myer Ltd v Webster [2009] NSWCA 299 (although the latter case was concerned with wrongful imprisonment). In A v State of NSW, as is most often the case, it was a police officer who was the informant who laid charges against the defendant. It was his conduct and his state of mind at the relevant time that formed the basis of the plaintiff’s case against the State. On the other hand, in the Coles Myer case, the police had acted lawfully in detaining two men identified by a store manager as acting fraudulently in a department store. It was held that the store manager, however, had acted maliciously and had, without reasonable cause, procured, and brought about the arrest by involving the police. (See also Martin v Watson [1996] AC 74 at 86–7.) Consequently, the manager’s employer was vicariously responsible for the wrongful detention.

Generally, however, a person who provides the police with information, believing it to be true, will be held not to have initiated the proceedings. Rather, the proceedings will be regarded as instituted by and at the discretion of an independent prosecuting authority: Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343, at 379 per Dixon J.

[5-7140] Absence of reasonable and probable cause

This, together with the concept of malice, are the components of the tort most difficult to prove. This is especially so where a member of the public has given apparently credible information to the police and the police have then charged the plaintiff with a criminal offence. The question arises: how does a plaintiff go about establishing the negative — an absence of reasonable and probable cause?

Prior to illustrating the answer to this question by reference to decided cases, it is necessary to emphasise the High Court’s general strictures on the subject (A v State of NSW (2007) 230 CLR 500):

  • the question of reasonable and probable cause has both a subjective and an objective element

  • if the defendant did not subjectively believe the prosecution was warranted — assuming that could be proved on the probabilities — the plaintiff will have established the negative proposition,

  • however, even when the prosecutor did believe the prosecution was justified, the plaintiff may yet succeed if it can be shown that, objectively, there were no reasonable grounds for the prosecution.

As has been pointed out (Barker et al p 91) there is an important temporal element in determining whether the defendant commenced or maintained the proceeding without reasonable or probable cause. This will first focus on the matters known at the time of institution of the proceedings, and then subsequently on fresh matters known as the proceedings continue. A prosecutor who learns of facts only after the institution of proceedings which show that the prosecution is baseless may be liable in malicious prosecution for continuing the proceedings: Hathaway v State of NSW [2009] NSWSC 116 at [118] (overruled on appeal [2010] NSWCA 184, but not on this point); State of NSW v Zreika [2012] NSWCA 37 at [28]–[32].

[5-7150] Some examples

In State of NSW v Zreika, above, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police. There had been a shooting at a home unit in Parramatta. Shortly after the shooting, the plaintiff was reported as having made some bizarre remarks at a nearby service station. The police officer investigating the shooting, when informed of this, became convinced that the plaintiff was the shooter and, five days later, arranged for his arrest and charging. However, a description of the shooter and his vehicle could not conceivably have matched the plaintiff. After the arrest, police learned the plaintiff had a credible alibi and that a witness had taken part in a “photo array” but had not identified the plaintiff. Despite all this, the plaintiff was refused bail (on the application of the police) and remained in custody for two months before the Director of Public Prosecutions withdrew all charges against him.

In A v State of NSW, the plaintiff had been arrested and charged with sexual offences against his two stepsons. The High Court agreed with the trial judge that the evidence demonstrated that the plaintiff had shown an absence of probable belief in the case of the charge relating to the younger child but had failed to do so in the case of the older boy. In the first situation, the police officer did not form the view that the material he possessed warranted laying the charge; or, alternatively, if he had in fact formed that view, there was no sufficient basis for his doing so. The evidence suggested a strong possibility that the younger boy was “making up” a story to support his older brother in circumstances where there was substantial animosity on the part of the older boy towards the plaintiff.

Finally, as the High Court pointed out in A v State of NSW, there is a need for the court to decide “whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause.” (Commonwealth Life Assurance Society Limited v Brain, above, at 74 per Dixon J.)

This may often require the court to consider the proper response of the “ordinarily prudent and cautious man, placed in the position of the accuser,” to the conclusion that the person charged was probably guilty. The enquiry is to an “objective standard of sufficiency”.

In this regard, it is not enough to show the prosecutor could have made further or different enquiries. His duty is “not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution”: Herniman v Smith [1938] AC 305 at 319 per Lord Atkin.

[5-7160] Malice

In A v State of NSW, the plurality examined the types of “extraneous purpose” that will suffice to show malice in malicious prosecution proceedings. They approved a general statement in Fleming at 685:

At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.

The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. Generally, there must be shown a purpose other than a proper purpose. However, strict proof will be required, not conjecture nor mere suspicion. The tort “is available only upon proof of absence of reasonable and probable cause and pursuit by the prosecutor of some illegitimate or oblique motive”: A v State of NSW at [95].

The plaintiff succeeded in A v State of NSW (on the malice issue) because he was able to show that the proceedings were instituted by the police officer essentially because he had been under extreme pressure from his superiors to do so, not because he wished to bring an offender to justice. In State of New South Wales v Zreika, the police officer was motivated by an irrational obsession with the guilt of the plaintiff, despite all the objective evidence pointing to his innocence.

However, it is necessary to stress that the presence of malice will not of itself be sufficient to establish the tort, there must also be an absence of reasonable and probable cause. See also, HD v State of NSW [2016] NSWCA 85 at [5-7120].

Note:

a comprehensive and practical summary of all the relevant legal principles stated in A v State of NSW is to be found in the judgement of Tobias AJA in State of NSW v Quirk [2012] NSWCA 216 at [69]–[70].

[5-7170] Justification

In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained; and second, if so, whether there was a justification for the detention. The two issues need to be addressed separately. The burden of demonstrating justification falls on the defendant: Darcy v State of NSW [2011] NSWCA 413 at [141]–[148].

Where there is a requirement for a detaining officer or person to have “reasonable grounds” for suspicion or belief, there must be facts sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at [112]. In addition, there must be some factual basis for either the suspicion or belief. The state of mind may be based on hearsay materials or materials which may otherwise be inadmissible in evidence. “[T]he assent of belief is given on more slender evidence than proof”: George v Rockett at [112].

What constitutes reasonable grounds for forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor (2005) 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ. In that sense, the criterion has an objective element to it: Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 at 714.

The question of identifying the material sufficient to support an objective finding that an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at [18]–[19] per McColl JA.

An example of wrongful arrest appears in State of NSW v Smith (2017) 95 NSWLR 662. Two police officers had arrested the respondent at his home, asserting that he had committed a “domestic incident”. The respondent was taken to the police station and retained there until his release on bail.

The State of NSW relied on two critical defences. The Court of Appeal agreed with the trial judge that neither of these defences had been made out. The first issue related to the police officer’s failure to state adequately the reason for the arrest. To describe the reason as “a domestic incident” was insufficient. This constituted a breach of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) s 201.

The second issue concerned a breach of s 99(3) LEPRA, at it then was, which required the police officer to suspect “on reasonable grounds” that it was necessary to arrest the person to achieve the purposes listed in s 99(3). There had been no basis to suspect, on reasonable grounds, that the arrest was necessary. In this regard the court accepted that the police officer’s decision to arrest the respondent was made essentially — for reasons of “administrative convenience” — namely to facilitate the process of issuing an AVO.

In State of NSW v Robinson [2016] NSWCA 334, the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of purposes in s 99(3) (repealed) and the decision to arrest must have been made on reasonable grounds: at [27], [44]. The word “necessary” means “needed to be done”, “required” in the sense of “requisite”, or something “that cannot be dispensed with”: at [43]. Although s 99(3) has since been repealed, the primary judge misconstrued important legislation which governs the circumstances in which people are lawfully arrested.

In construing s 99 LEPRA as it now stands, see Robinson v State of NSW [2018] NSWCA 231. The Court of Appeal , by majority, set aside the trial judge’s decision that the appellant’s arrest was lawful and held that, as no decision to charge the appellant had been made at the time of arrest, it was not for the purpose of commencing the criminal process and accordingly was unlawful: at [128]–[129]; [194]. The court held the power to arrest is generally used to identify the deprivation of liberty which is a precursor to the commencement of criminal proceedings against the person arrested: at [95]; [136].

[5-7180] Intimidation

The elements of the Tort of Intimidation were identified in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assoc of Australia [1971] 1 NSWLR 760. These were identified as:

1. 

A intends to injure C

2. 

A gives effect to his intention by threatening B that A will commit an unlawful act as against B

3. 

The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C, and

4. 

B is thereby induced to refrain from exercising his legal right to deal with C.

In Uber BV v Howarth [2017] NSWSC 54, Slattery J issued a permanent injunction to restrain a litigant in person who had engaged in the unusual tort of intimidation. His actions were made against Uber and consisted of a series of “citizens arrests”.

[5-7190] Damages including legal costs

As has been said, proof of damage is not an element of the three “trespass to the person” torts. However, specific damage or loss may be claimed and, if proven, damages will be awarded. These torts allow for the amount of aggravated damages and, where appropriate, exemplary damages: State of NSW v Ibbett (2005) 65 NSWLR 168.

Where a party claims damages for harm suffered due to an intentional tort, the loss must be the intended or natural and probable consequence of the wrong: State of NSW v Cuthbertson [2018] NSWCA 320 at [40]; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; TCN Channel Nine v Anning (2002) 54 NSWLR 333 at [100].

The legal costs incurred in defending a charge of resisting an officer in the course of duty are not the “natural and probable consequence” of the tortious conduct of wrongful arrest. Although harm suffered in resisting arrest, such as physical injury or property damage, is a natural and probable consequence of the wrong, the resistance being directly related or connected to wrongful arrest, the costs incurred in what ultimately turns out to be a failed prosecution are not: State of NSW v Cuthbertson [2018] NSWCA 320 at [44]–[45]; [135]. The costs of successfully defending a criminal proceeding can only be recovered in a proceeding which alleges that the laying of a charge was an abuse of process: Berry v British Transport Commission [1962] 1 QB 306 at 328.

The legislative scheme in NSW for the award of costs in criminal proceedings is provided for by s 70, Crimes (Appeal and Review) Act 2001. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made. A party cannot avoid the constraints of s 70 by later claiming costs incurred in conducting a criminal appeal in later civil proceedings: State of NSW v Cuthbertson at [63]–[67]; [114]; [144]–[145]; [161].

Legislation

  • Casino Control Act 1992

  • Civil Liability Act 2002, Pt 7, s 52

  • Crimes Act 1914 (Cth) s 3W

  • Crimes (Sentencing Procedure) Act 1999 s 10

  • Defence Force Discipline Act 1982

  • Law Enforcement (Powers and Responsibilities) Act 2002 ss 99(3), 201

  • Migration Act 1958 (Cth) s 5, s 233C(1)

Further References

  • J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998

  • K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011