Definition of injury crucial in successful NSW intentional tort claim

A 2024 New South Wales judgment might change the way that Victorian personal injury insurers, litigants and courts interpret the law regarding “intentional torts” in Victoria. If so, this would clear a path for a greater number of injured Victorians to bring an intentional tort claim and access compensation for their pain and suffering.

An intentional tort is a type of personal injury claim that relates to an intentional act that results in injury. The definition or meaning of “injury” is crucial. It could include, for example, assault, sexual assault and, with this recent judgement, deprivation of liberty or imprisonment.

In Victoria, compensation claims are generally subject to injury thresholds. An injured person generally needs to establish that they have suffered permanent, ongoing, serious or significant injuries to be eligible for compensation for their pain and suffering.

The Wrongs Act 1958 (Vic) (“the Wrongs Act”), which mirrors the law in other states, including New South Wales, and which applies to medical negligence and public liability cases in Victoria, makes clear that the “significant injury requirement” does not apply to:

“an award of personal injury damages, except an award that is excluded by subsection …. where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct”  

In some cases, the intention of the person who causes an injury is clear – for instance, a nightclub bouncer who punches a patron.

However, in the context of medical treatment, for example, the intention of the health practitioner is generally to help the patient rather than to cause injury. A surgeon who performs an operation poorly and injures a patient is very unlikely to be said to have performed the operation with intent to cause death or injury.

A 2024 NSW case (New South Wales v Madden [2024] NSWCA 40) considered the question of “injury” in a way that might change the way that the Wrongs Act injury thresholds are viewed and applied in Victoria.

1. Ebonie Madden brought a claim for compensation against NSW Police for battery, false imprisonment and malicious prosecution.
2. She was initially awarded $320,000 for her pain and suffering as well as aggravated and exemplary damages (awarded rarely in Australia and with the purpose of denouncing the conduct of the defendant).
3. NSW Police appealed the decision on a number of grounds, including that:

• • Ms Madden should not be entitled to compensation because she had not established that she had met the injury threshold; and
  • because she had not established that the there was an intentional act done with intent to cause injury or death.

The key question was whether the deprivation of her liberty could fall within the definition of an “injury”.

While “injury” was defined to meet a personal injury in another part of the legislation, that definition did not apply to the type of claim for compensation brought by Ms Madden.

As a result, the Court was required to define “injury” based on the ordinary meaning of the word.

Referring to dictionary definitions and past court decisions, the NSW Court of Appeal determined that the word “injury” was much broader than a physical, bodily or personal injury, and could include other types of harm, which include the deprivation of liberty.

While NSW Police argued that the police officer’s intention was to “enforce the law”, the Court found that where this was done without justification, the intention was to deprive Ms Madden of her liberty, which amounted to an injury.

The New South Wales Court of Appeal found that deprivation of liberty caused a type of “injury” (albeit not a “personal injury”), and as a result, Ms Madden was entitled to the compensation that had been awarded.

The decision raises a number of other circumstances in which the requirement for an injured person to establish that they have suffered a permanent significant injury might be waived.

For instance, where a person was improperly physically restrained, as is unfortunately common in the provision of mental health treatment and in elder care, could give rise to an intentional tort claim.

It’s important to highlight that this case is a NSW case, however, the result is being closely assessed in Victoria (and other jurisdictions).

If you’ve suffered an injury in Victoria that was intentional but does not meet the significant injury threshold, and you’d like to consider your options for compensation, call us for initial free advice. It costs you nothing to find out where you stand, and if your claim has merit, we will run it on a “no win, no fee” basis.