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Intention in tort

Civil Liability Act 2002 section 3B Civil liability excluded from Act >>

Nationwide News PL v Naidu & Anor; ISS Security PL v Naidu & Anor [2007] NSWCA 377.

Basten JA

370 These principles were affirmed by the High Court in Northern Territory v Mengel [1994] HCA 37; (1995) 185 CLR 307, at 339-349 in overruling Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145.

The Court held that an essential element in an intentional tort is the intention to cause harm, not merely the carrying out of an intentional act: at 347.

Mengel was concerned with the unlawful act of a government officer causing relevant harm, but in stating the principle to be applied, the majority judgment drew on principles applicable to torts of private individuals (at 347):

'And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm.

For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

371 It may be assumed that reference to 'harm' is a reference to compensable loss or damage.

However, in the present context, that would mean harm going beyond embarrassment, injury to feelings, humiliation or psychological distress and constituting a psychiatrically cognizable injury to mental health.

This gives rise to nice questions in terms of intention, which must be answered without assumptions based on hindsight.

Thus, the fact that the plaintiff has suffered psychiatric injury, caused by the conduct in question, does not mean either that it was inevitable, or that it was intended.

372 Further, there are difficulties arising from the notion of 'reckless indifference to the harm that is likely to ensue'. The difficulty of applying that test is particularly acute in the case of conduct undertaken in the course of an on-going lawful relationship.

Such cases are quite different from Wilkinson and its progeny.

In Wilkinson, the plaintiff was told by the defendant that her husband had been badly injured in an accident, a statement which was not true, but was apparently intended as a 'practical joke': see Mark Lunney, Practical Joking and its Penalty: Wilkinson v Downton in Context (2002) 10(2) Tort L Rev 168.

Janvier v Sweeney [1919] 2 KB 316 was a wartime case in which the plaintiff was told that she was wanted by authorities for communicating with an enemy spy, namely her fiance. This false and intimidatory statement was designed to induce her to take letters from her employer to which she was not entitled.

Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1 involved a claim by a plaintiff for shock suffered as a result of her employer's drunken threat to shoot himself, followed by a shot being fired.

373 Quite different considerations arise where the conduct occurs in the course of a lawful activity, the elements of which are governed by a pre-existing relationship between the parties.

An example may be found in a sporting contest such as the rugby league game which was considered in McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353.

In that case there was an intention to cause a degree of physical discomfort to the player being tackled, which would have been legitimate, but the tackle went beyond that permitted by the rules of the game.

The player being upended and landing on his head, the tackle was one which was no doubt 'calculated in the ordinary course to cause harm': however, whether it was intentional, reckless or merely negligent, would have raised nice questions which were not addressed in the case.

Similar questions may arise in an employment context where the work is stressful, possibly requiring a high degree of co-ordination amongst a team and quick decisions which must be acted on promptly.

On one side of the line there will be forceful but legitimate direction, on the other illegitimate bullying.

Again, whether a defendant crosses the line intentionally, recklessly or negligently, will involve nice questions.

Similar examples arise in cases of police or security guards exceeding the limits of their powers; such cases frequently being brought in negligence: see, eg, Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 and Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322.

374 On one view, where an employer (or person in authority over an employee) oversteps the limits of his or her authority to such an extent that there could be said to be an intentional infliction of harm, it may be thought that the conduct would be so far outside that authorised by the employer as to be conduct for which the employer was not liable.

However, although unauthorised, the conduct may have a sufficient connection with the course of employment to render the employer liable: see Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 and other cases discussed in State of NSW v Lepore (supra) and in Zorom.


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