Personal Injuries and Intentional Torts
Published on March 15, 2023 by Emily Katheklakis
A client might suffer personal injuries in circumstances that also give rise to intentional tort claims.
This often occurs in the context of bringing claims against the Police for any harm inflicted by a Police Officer in the execution of their duty.
In such circumstances, how do we decide what kind of claim to bring and how do you incorporate a personal injury into an intentional tort claim?
Different types of claims:
- A personal injury damages claim is typically a claim for injuries and loss arising from the negligence of the Defendant and is assessed under the Civil Liability Act (NSW) 2002 (CLA).
- However, an intentional act that is done with intent to cause injury is excluded from the CLA by Section 3B(1)(a).
- An intentional tort claim relates to an intentional act or conduct by a person upon another and includes assault, battery and false imprisonment. Usually, damages are assessed under the common law for these claims.
- If an intentional act was not intended to cause harm, but negligently caused an injury, then this could be a personal injury claim under the CLA.
- Unlawful or false imprisonment – involves the deprivation of liberty. It is the intentional restraint of a person’s liberty without lawful justification.
- Assault – it is an act which creates in another an apprehension of imminent, harmful or offensive physical contact, without that person’s consent. It includes both physical and non-physical unlawful interference, or threatened interference, with a person.
- Battery – is the actual infliction of force. The intentional act of a person directly causing harmful or offensive physical contact with another person, unless that contact was lawful.
What is an injury?
Section 11 of the CLA defines “injury” as a personal injury and includes that following:
- Pre-natal injury,
- Impairment of a person’s physical or mental condition,
Section 11 of the CLA defines “Personal Injury Damages” as damages that relate to the death of or injury to a person.
Section 11 of the Limitation Act (NSW) 1969 provides that “Personal Injury” includes any disease and any impairment of a physical or mental condition of a person.
Essentially an “injury” has the ordinary definition meaning. Therefore, for the purpose of intentional tort claims and claims under the CLA, any claim for an injury including minor physical and psychological injuries, will be a claim for “personal injury”.
However, there seems to be some overlap with psychological injuries.
The deprivation of liberty, an apprehension of harm, loss of dignity, harm to reputation, embarrassment, humiliation and injured feelings are not injuries for the purpose of the CLA.
See State of NSW v Ibbett (2005) and Spedding v State of NSW (2022). In these cases, anxiety and distress arising from an intentional tort were found to be excluded from the CLA.
If a client has sustained an injury, what damages might be available?
- Damages available under the CLA for a Personal Injury Damages Claim include the following:
(a) Non-economic loss (pain and suffering), past and future medical treatment, past and future economic loss and care expenses.
(b) Damages for non-economic loss/pain and suffering are only available if the injuries suffered are at least 15% of a most extreme case.
(c) Aggravated and exemplary damages are not available under the CLA: Section 21.
(d) If a claim is worth less than $100,000, there are restrictions on the amount of legal costs which can be recovered.
(e) The threshold of 15% of a most extreme case will be difficult to achieve for minor injuries, the following factors will be considered if the threshold can be met:
– A most extreme case is generally considered to be quadriplegic or a brain-damaged plaintiff and so every injury is assessed as a proportion of those condition as the maximum;
– In order to reach the threshold, the injuries must have resulted in an ongoing impact or impairment. Injuries which have healed/resolved will not meet the threshold;
– Assessment of the injuries will occur at the time of trial by the Court. The assessment is not made by a doctor, although medical evidence is required to establish the severity of the impairment arising from the injuries;
– It is possible to combine any physical or psychological injuries in order to reach the threshold.
(f) If non-economic loss is not payable due to the threshold, it does not preclude claiming other heads of damages under the CLA if other losses have been sustained.
- Damages available for an intentional tort claim at common law are as follows:
(a) General/compensatory damages – relates to the impact upon the client, including injured feelings, loss of dignity, harm to reputation, outrage, distress and humiliation. If injuries can also be claimed, this may increase the compensation payable for the extent of harm caused by the intentional torts;
(b) Aggravated damages – for additional injured feelings or distress of the client due to the Defendant’s conduct;
(c) Exemplary damages may also be available in some cases, if the actions of the Defendant were in total disregard of the client’s rights, and the Defendant’s actions were completely unjustified;
(d) Other losses and expenses incurred as a result of the intentional acts, such as wage loss and medical treatment.
Can you bring a claim in both Intentional Tort and a Personal Injury Damages Claim under the CLA?
There may be some circumstances where a claim could be brought as an intentional tort claim at common law or as a personal injury claim under the CLA, but the claim will be assessed for damages as one or the other and not both. It is possible to bring both claims in the alternative, but this will be more costly and therefore it is advisable to make a choice about which claim to bring.
Ultimately the conduct of the Defendant and the manner in which the injuries occurred will usually determine which type of claim to bring. That is, whether the injuries were caused with intent to harm (which will be a common law claim) or whether the injuries were negligently (which will be a claim under the CLA).
If, for example, a client has suffered injuries as a result of an unlawful arrest, false imprisonment and assault and battery by the Police, which type of claim should they bring?
If the actions of the Police were intended to cause harm, then it will be possible to make a claim for the injuries in common law as an intentional tort. General/compensatory damages and aggravated damages could include additional damages for the injuries.
However, if the actions of the Police were not intended to cause injury, but were negligently inflicted, the claim must be brought under the CLA for those injuries.
If the injuries are minor in nature and a potential CLA claim will be worth only a minimal amount – for example, if the 15% threshold cannot be reached, there are little or no other losses to claim such as wage loss or treatment expenses and costs will be restricted if the claim is worth less than $100,000 – then it may not be worthwhile to pursue the claim for injuries.
A forensic decision may be made to abandon any personal injury component of the claim, to avoid the CLA and simply bring the claim as an intentional tort under the common law. In that case, damages would be assessed as compensatory damages for the false imprisonment, assault and battery, together with possible aggravated damages and exemplary damages, but no claim would be included for the injuries and any loss arising from those injuries.
Different rules apply to clients who have suffered injuries while in custody: Part 2A CLA.
When must a claim be brought?
For a claim involving an injury, whether it is an intentional tort claim at common law or a claim pursuant to the CLA, the limitation period is 3 years from the date the action was discoverable: Section 50C of the Limitation Act.
Section 50D of the Limitation Act indicates that an action is discoverable from the date the person knows or ought to know that they are entitled to bring a claim against the Defendant.
Section 14(1)(b) of the Limitation Act provides a 6-year limitation period for other torts, such as intentional torts, which do not include a personal injury.
In summary, when deciding how to make a claim for injuries in the context of an intentional tort, we need to consider how the injuries were sustained, the severity of the injuries, the damages available for each type of claim and the applicable limitation period.
Emily Katheklakis contact details:
email@example.com or Ph (02) 92919194