Federal Court of Australia

Snell v State of Victoria (Department of Education and Training) [2022] FCA 5

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4:30 pm on Tuesday 1 February 2022, the respondent file and serve a minute of the orders sought by it with respect to:

(a)    the service on the respondent of a certificate of assessment of degree of impairment accompanied by the prescribed accompanying information in conformity with s 28LT of the Wrongs Act 1958 (Vic);

(b)    the disposition of costs;

(c)    any other matter that the respondent consider appropriate.

2.    On or before 4:30 pm on Thursday 3 February 2022, the applicant file and serve a minute of the orders sought by him with respect to:

(a)    the service on the respondent of a certificate of assessment of degree of impairment accompanied by the prescribed accompanying information in conformity with s 28LT of the Wrongs Act 1958 (Vic);

(b)    the disposition of costs;

(c)    any other matter that the applicant consider appropriate.

3.    There be a case management hearing fixed for 9:30 am on 4 February 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1    An issue has arisen in this proceeding as to whether the applicant is required to serve on the respondent a copy of a certificate of assessment as required by s 28LT of the Wrongs Act 1958 (Vic) (‘Wrongs Act’). The respondent maintains that the applicant is so required. The applicant maintains that he is not.

2    The parties agreed that the issue should be determined on the papers, as reflected in the consent orders made on 10 May 2021.

3    For the reasons that follow, I would not accept the applicant’s submissions.

Background

4    By his originating application filed on 16 November 2017 and his amended statement of claim filed on 17 May 2018, the applicant by his litigation representative seeks declaratory relief and damages under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) for alleged breaches by the respondent of s 22 of the Disability Discrimination Act 1992 (Cth) (‘DDA’). The applicant, who claims to have a number of disabilities within the meaning of s 4 of the DDA, has alleged that he was subjected to direct disability discrimination within the meaning of s 5 of the DDA while attending Jackson Special School (‘School’), which is a school operated by the respondent.

5    The procedural history of the proceeding is protracted. Amongst other things, the parties have been in dispute over the applicant’s pleading. On 8 August 2019 a Registrar of the Court partially allowed the respondent’s strike out application in respect of the applicant’s amended statement of claim and at the same time granted the applicant leave to file and serve a further amended statement of claim in accordance with the Registrar’s reasons.

6    The matter was referred to mediation on 10 August 2020. A mediation was conducted on 12 October 2020. The proceeding did not resolve then. Orders were subsequently made by consent regarding the applicant’s pleading, which the applicant foreshadowed would include a new common law claim for damages (‘common law claim’). When the proposed pleading was served on the respondent in the following month, the respondent objected that the pleading did not comply with the Registrar’s reasons of 8 August 2019.

7    Following service of the proposed pleading, the respondent informed the applicant that it did not object to the inclusion of the new paragraphs constituting the proposed common law claim, but requested that the applicant serve a certificate of assessment pursuant to s 28LT of the Wrongs Act (‘certificate of assessment’). The orders made by consent on 10 December 2020 included an order that the applicant serve on the respondent a certificate of assessment by 1 April 2021. The applicant failed to provide a certificate of assessment by the due date.

8    At a case management hearing on 7 May 2021 counsel for the applicant, Mr Hancock, acknowledged that it “may have been the agreed position” that the applicant provide a certificate of assessment but said that the applicant’s position had changed. Mr Hancock submitted that a certificate of assessment was not required in respect of the applicant’s proposed common law claim. The respondent’s counsel, who had been unaware of the nature of the applicant’s objection to the provision of a certificate of assessment until the morning of the case management hearing, continued to maintain that a certificate of assessment was required. Shortly thereafter the Court made the consent orders referred to at [2] above, which also made provision for the exchange of written submissions about the issue in dispute.

The applicant’s common law claim for damages

9    To understand the nature of the present dispute between the parties, it is necessary to refer to aspects of the applicant’s existing and proposed pleadings and in particular to the applicant’s proposed new common law claim. (For present purposes, it is unnecessary to refer to all the proposed amendments, which are extensive.)

10    In his amended statement of claim of 17 May 2018 (which is the most recent pleading filed and served with the leave of the Court) the applicant sets out what he refers to as eight discrete “Allegations” of conduct said to constitute direct disability discrimination by the respondent. Under the heading “First Allegation: Application of restrictive practices”, the applicant relevantly claims, in [12], that he was subjected to physical restraint, isolation and seclusion at the School on account of his pleaded disabilities. In his proposed new pleading, which has been served on the respondent and was attached to the applicant’s written submissions, the applicant proposed to amend [12] of his amended statement of claim, including the particulars of the applicant’s alleged restraint, seclusion and isolation. These proposed particulars set out claims about the specific incidents said to constitute such restraint, isolation and seclusion. The applicant also relied on some of these particulars in pleading his proposed new common law claim.

11    The proposed common law claim is set out in [16A] to [16D] of the proposed new pleading under the heading “Associated Claim”. These paragraphs are as follows:

16A     Further and/or in the alternative to paragraphs 12 to 16 inclusive above, the Respondent, between February 2005 and August 2016:

(a)     Regulated, administered and funded [the School];

(b)     Was vicariously liable for the actions of its employees, officers and agents set out in paragraphs 12A (4), (4A), (5) and (5A) above, pursuant to s 23(1)(b) of the Crown Proceedings Act 1958 (Vic);

(c)     Owed a duty of care to students of [the School] to ensure that its officers, employees or agents do not physically assault, harm or falsely imprison them;

(d)     Alternatively to (c) above, as administrator and/or occupier of [the School], owned [sic] a duty pursuant to Section 14B of the Wrongs Act 1958 to take such care in the circumstances of the case as was reasonable to ensure that students of [the School] would not be assaulted, harmed or falsely imprisoned.

16B     The physical restraint, isolation and seclusion set out in paragraphs 12A (4) and (5) above constitutes assault, battery and false imprisonment of [the applicant]; in that:

(a)     the physical contact inflicted upon [the applicant] was direct, intentional, and caused him physical and psychological harm; and

(b)     the isolation and seclusion of [the applicant] was direct, intentional, and deprived him of his freedom of movement and personal liberty.

16C     By reason of the torts of assault, battery and false imprisonment committed by the employees, officers or agents of the Respondent as aforesaid, [the applicant] has suffered, and will continue to suffer, loss, injury and damage, including:

(a)     Anxiety;

(b)     Trauma;

(c)     Loss of self confidence;

(d)     Lack of trust in authority;

(e)     Past and future medical expenses, including counselling expenses, further particulars of which will be provided prior to trial.

16D     [The applicant] was a minor during the occurrence of the conduct described above, and has suffered significant interference with his education from this period of time until the present. The interference with [the applicant’s] education and the ongoing injury, loss and damage are likely to affect his employment opportunities in the future, further particulars of which will be provided prior to trial.

12    The proposed new pleading indicates that damages pursuant to the Wrongs Act will be sought and, in [16C] (set out above), that such damages include damages for non-economic loss. Regarding damages claims of this latter kind, claimants in Victorian courts exercising State jurisdiction must generally show that they have suffered “significant injury” as provided for by Division 2 of Pt VBA of that Act: see ss 28LE, 28LF. Although “significant injury” may be established in other ways, generally speaking a claimant for damages for non-economic loss must provide a certificate of assessment for this purpose: see Pt VBA, ss 28LF(1)(aa), 28LF(2)(aa), 28LN, 28LT of the Wrongs Act.

13    I interpolate here that it was apparently common ground that Pt VBA of the Wrongs Act was picked up in some way as a law that could govern an exercise of federal jurisdiction, although neither party made any submission on the subject. For present purposes, I have proceeded on the basis that s 80 and/or s 79 of the Judiciary Act 1903 (Cth) operated to pick up Pt VBA of the Wrongs Act and apply its provisions as Commonwealth law governing how this Court should exercise federal jurisdiction in this case. I note, in passing, that in determining whether Pt VBA is picked up by a Commonwealth law, the “inquiry directs attention, in the first instance, to s 80” and only if necessary to s 79: see Blunden v Commonwealth [2003] HCA 73; 218 CLR 330 (‘Blunden’) at [16]-[18]. It is well accepted that the phrase “laws of the Commonwealth” in ss 79 and 80 identify statute law: see, e.g., Blunden at [29]. It also may be the case that ss 80 and 79 both operate here: see Parker v Commonwealth [1965] HCA 12; 112 CLR 295 at 306-307, helpfully discussed in Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 at [87]; see also Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 at [16]-[22] (Kiefel CJ), [90]-[92] (Bell, Gageler, Keane, Nettle and Gordon JJ).

14    As already indicated, the applicant submits, and the respondent denies, that in this case the applicant’s claim for damages for non-economic loss in respect of the tortious conduct alleged in [16B] and [16C] of the applicant’s proposed new pleading does not fall within Pt VBA, due to the exception in s 28LC(2)(a). It was also common ground that, if the applicant were correct, then s 28LT (within Pt VBA) would be inapplicable and there would be no need for the applicant to serve a certificate of assessment on the respondent.

Legislative framework

15    Where Pt VBA of the Wrongs Act applies, it provides for “[t]hresholds in relation to [the] recovery of damages for non-economic loss”. Part VBA does not, however, apply to all damages claims for non-economic loss, as s 28LC discloses. Relevantly for this case, s 28LC(1) and (2)(a) provide:

28LC     Application of Part

(1)     This Part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by subsection (2) or (3).

(2)     This Part does not apply to the following claims for the recovery of damages for non-economic loss—

(a)     a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct …

Section 28LC(2)(a) makes it clear that Pt VBA does not apply “where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury”. The second part of the paragraph (‘or that is sexual assault or other sexual misconduct’) is not relevant in this case.

16    “Injury” and “non-economic loss” are defined in s 28LB of Div 1 of Pt VBA. By definition, “injury” includes “psychological or psychiatric injury”. “Non-economic loss” is defined to mean “any one or more of the following – (a) pain and suffering; (b) loss of amenities of life; (c) loss of enjoyment of life”. It was not in dispute that the applicant’s proposed common law claim includes damages for non-economic loss.

17    Where applicable, Div 2 of Pt VBA restricts recovery of damages for non-economic loss to claims involving significant injury. Section 28LE provides:

28LE     Restriction on recovery of damages for non-economic loss

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

18    Section 28LF provides that there will be “significant injury” for these purposes only in certain circumstances. Thus, for example, s 28LF provides as follows:

28LF     What is significant injury?

(1)     For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if—

(a)     the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa)     a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5 …

(2)     For the purposes of this Part psychiatric injury to a person is significant injury if—

(a)     the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa)     a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5 …

19    Division 3 of Pt VBA deals with the assessment of degree of impairment, including by requiring that the assessment is made by an approved medical practitioner (s 28LG) and by stipulating how the degree of impairment is to be assessed (ss 28LH, 28LI, 28LNA). Section 28LN relevantly provides:

28LN     Certificate of assessment

(1)     Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.

(2)     The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment. …

20    Division 4 of Pt VBA sets out the procedure for the recovery of damages for non-economic loss under the Wrongs Act, including the particular requirement now in issue:

28LT     Copy of certificate of assessment to be served on respondent

(1)     A claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.

(2)     The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.

(3)     The information prescribed for the purposes of subsection (2) may include information relating to—

(a)     the identity of the claimant;

(b)     the nature of the claim;

(c)     the injury;

(d)     the incident out of which the alleged injury arose;

(e)     any medical practitioner who has treated the injury.

Submissions

21    The applicant contends that his proposed claim for damages for non-economic loss in respect of the tortious conduct alleged in [16B] and [16C] of his proposed new pleading is not subject to the requirement in s 28LT to serve a copy of a certificate of assessment on the respondent, because his claim falls within s 28LC(2)(a) of the Wrongs Act and Pt VBA (of which s 28LT is a part) does not therefore apply to his claim.

22    Broadly speaking, the applicant made two alternate submissions in relation to the proper interpretation of s 28LC(2)(a) of the Wrongs Act. First, the applicant relied on the decision of the Court of Appeal of the Supreme Court of Victoria in State of Victoria v Thompson [2019] VSCA 237; 58 VR 583 (‘Thompson’) at [39]. The applicant contended that Thompson provides authoritative support for the proposition that the s 28LC(2)(a) exception should be interpreted to cover intentional torts, including claims of battery, assault and false imprisonment, as claimed in [16B] and [16C] of the applicant’s proposed pleading.

23    Further or alternatively, the applicant argued that s 28LC(2)(a) applied in relation to claims where the actions were likely to result in physical or psychological injury, and where such injury was “reasonably foreseeable as a result of the conduct engaged in”. The applicant submitted that “[i]t may be inferred from the surrounding circumstances of the incidents that the officers, employees and agents of the Respondent, by reason of their actions, intended to cause injury, either physical or psychological, to [him]”.

24    Finally, the applicant noted that [16D] of his proposed pleading included a claim for future economic loss, which he submitted was governed by Pt VB of the Wrongs Act, and not by Pt VBA.

25    In response to the applicant, the respondent contended that, for the relevant “limb” of s 28LC(2)(a) to apply, “the relevant intentional act must be done with ‘intent to cause death or injury’” since this was an essential element of the exception created by the provision. The respondent accepted that the applicant’s claims of assault, battery and false imprisonment were claims of intentional acts; but submitted that the applicant’s proposed common law claim did not allege that any of the alleged torts was performed with “intent to cause death or injury” and that there was no evidence that might support such a pleading. The respondent further contended that the applicant’s allegations about conduct with the potential to cause injury and the respondent’s awareness that the restrictive practices in issue “can cause injury” did not amount to a pleading that there was an intention on any relevant person’s part to cause death or injury, as s 28LC(2)(a) required. Further, the 2015 and 2017 documents mentioned by the applicant in connection with the respondent’s awareness of the potentially injurious nature of such restrictive practices did not establish that any relevant person had any intention to cause death or injury, including because both documents post-dated all but two of the numerous alleged incidents to which the applicant’s proposed pleading referred.

26    The respondent contended that the applicant’s reliance on [39] of Thompson was misconceived since the statements in [39] were relevant only to the question whether the words “or relates to” in s 28LC(2)(a) extended to claims of negligence against the State that were “related to an intentional act done with intent to cause death or injury”, i.e., the stabbing of Mr Thompson by a fellow prisoner in a State-run prison. The respondent contended that the Court in Thompson did not “find that the requirement of ‘intent to cause death or injury’ was to be watered down or could be dispensed with”, and that such a reading of Thompson at [39] was to misconstrue the Court’s reasons in that case.

Consideration

27    As should be clear by this point, it is common ground that if Pt VBA of the Wrongs Act applies to the applicant’s common law claim for damages for non-economic loss, then the applicant is obliged to serve the respondent with a copy of a certificate of assessment with the accompanying information in conformity with s 28LT of the Wrongs Act. It is not in dispute that, but for s 28LC(2)(a) of that Act, Pt VBA would apply to that claim. The dispute between the parties is whether the claim falls within s 28LC(2)(a). If it does, as the applicant submits, then Pt VBA does not apply and the applicant is not required to serve a copy of a certificate of assessment in conformity with s 28LT in order to recover damages for non-economic loss.

28    Whether the applicant’s common law claim for damages for non-economic loss falls within s 28LC(2)(a) depends on the proper construction of that provision and on [16A] to [16C] of the applicant’s proposed pleading. The parties have proceeded on the basis that these paragraphs set out the applicant’s claim in this regard, but disagree on how s 28LC(2)(a) should be construed.

29    As already stated, the applicant substantially relies on what was said about s 28LC(2)(a) in Thompson at [39]. To understand this paragraph properly, however, one must pay attention to the relevant facts of that case and the whole of the Court’s reasons for judgment.

30    Mr Thompson (“the plaintiff”) suffered injuries when he was stabbed by another prisoner in a State-run prison. He instituted proceedings against the State of Victoria, claiming damages in respect of his injuries, which he alleged were caused by the State’s negligence and breach of statutory duty: Thompson at [1]. The State’s defence included the proposition that the plaintiff was prevented from recovering damages for non-economic loss because the plaintiff had not complied with Pt VBA of the Wrongs Act. The primary judge held that the plaintiff’s claim fell within s 28LC(2)(a) and that Pt VBA did not therefore apply. The judge ordered that the relevant part of the State’s defence be struck out. The State appealed against this order: Thompson at [41].

31    The parties in Thompson “proceeded on the basis that the stabbing … was an intentional act … done with intent to cause death or injury”: Thompson at [4]. The key issue for the Court of Appeal was whether, as the primary judge held, the plaintiff’s claim against the State was “a claim where the fault concerned … relates to [the] intentional act that [was] done [by the fellow prisoner] with intent to cause death or injury” in accordance with s 28LC(2)(a): Thompson at [11] (emphasis added). The State submitted that the primary judge erred in his construction of s 28LC(2)(a), which, so the State argued, operated to exclude from Pt VBA only claims in respect of an intentional act committed by the person against whom the claim is made, that is, the State: Thompson at [13]-[14]. Of the State’s case, the Court relevantly said (at [16]-[17]):

The defendant submitted that the words ‘is, or relates to’ [in s 28LC(2)(a)] do no more than make clear that s 28LC(2)(a) covers both claims in which the fault or act of the tortfeasor is an intentional act done with intent to cause injury; and claims in which the fault or act of the tortfeasor need not include any intention to cause injury — such as claims in battery, assault and false imprisonment — but to which an allegation of intention to cause injury may ‘relate’ so as to found an associated claim against the tortfeasor for exemplary damages.

While in its written case the defendant suggested that the words ‘or relates to’ may apply to claims involving the vicarious liability of a tortfeasor for the tortious acts of another who commits an intentional act that is done with intent to cause death or injury, in oral argument the defendant eschewed that suggestion.

32    After referring to the legislative history of Pt VBA and contrasting the language of s 28C(2)(a) in Pt VB (‘where the fault concerned is an intentional act’) with the language of Pt VBA (‘where the fault concerned is, or relates to, an intentional act’) at [30]-[35]), the Court said as follows (at [36]-[37]):

In our opinion, and again contrary to the defendant’s submissions, the better view is that the words ‘or relates to’ were inserted into s 28LC(2)(a) as part of the Parliament’s attempt to ‘balance the rights of people to sue for personal injuries and the need for access to affordable insurance’ as described in the second reading speech relating to the [Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic)].

The words ‘relates to’ are words of wide and general import. As has been said before, the precise ambit of the expression can only be discerned from the context in which it has been used. But in the present case as a matter of fact resulting from the application of the ordinary meaning of the words, the plaintiff’s claim relates to an intentional act done with intent to cause death or injury.

(Citations omitted).

33    The Court held that the ‘intentional act’ to which s 28LC(2)(a) refers may be done by a person who is not the defendant, where the ‘fault concerned is, or relates to’ that intentional act, being an act done ‘to cause death or injury’: Thompson at [38]. The Court concluded that, in the circumstances of the case, “there was a sufficient nexus between the intentional stabbing of the plaintiff (done with intent to cause death or injury) and the plaintiff’s claim”, such that the exclusion in s 28LC(2)(a) was engaged and the provisions of Pt VBA were inapplicable: Thompson at [40]. The Court was fortified in its construction of s 28LC(2)(a) by the difference between the language of s 28LC(2)(a) and the equivalent provision, s 28C(2)(a), in Part VB (governing the assessment of personal injury damages). Section 28C(2)(a), as the Court noted, omitted the words “or relates to”: Thompson at [32].

34    It is in this context that the passage in Thompson at [39] must be read. At [39] the Court stated:

We also reject the defendant’s submission that claims in which the fault ‘is’ an intentional act are limited to intentional acts done with intent to cause injury (eg, Wilkinson v Downton [1897] 2 QB 57 and Bradley v Wingnut Films Ltd [1993] 1 NZLR 415) rather than claims where there may be an allegation of intention to cause injury (such as claims in battery, assault and false imprisonment). Such a construction would give too little work to the first limb of s 28LC(2)(a) (‘the “is” limb’) and cannot be justified having regard to the more limited terms of s 28C — containing as it does only the ‘is’ limb.

35    The significance of this passage is clear when account is taken of the context in which it appears in the Court’s reasons. Prior to this passage, the Court had identified that the first part of s 28LC(2)(a) (a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury) covered two relevantly distinct situations, namely: a claim where the fault concerned is an intentional act done with intent to cause death or injury (as exemplified by Wilkinson v Downton [1897] 2 QB 57 (‘Wilkinson v Downton’)) and a claim where the fault concerned relates to an intentional act done with intent to cause death or injury (as in Thompson). It was not in dispute in Thompson that the stabbing was an intentional act done with intent to cause death or injury. The only issue before the Court was whether the words “or relates to” relevantly enlarged the scope of the provision to include the case in which a claim in tort for damages for non-economic loss was made against a defendant who had not done such an act but whose alleged negligence had created the risk of that act being done by another (in that case, another prison inmate). As the previous discussion of Thompson shows, the Court of Appeal held that it did. That is, having regard to the broad generality of the words “relates to”, the provision was not limited to situations where the relevant intentional act was done by the defendant to the claim.

36    As indicated at [31] above, in the course of argument before the Court of Appeal, the State had submitted that the words ‘is, or relates to’ did no more than make clear that s 28LC(2)(a) covered both claims in which the act of the alleged tortfeasor was alleged to be ‘an intentional act that is done with intent to cause death or injury’ and claims in which the act of the alleged tortfeasor was not said to include an intention to cause injury but to which an allegation of intention to cause injury may “relate” so as to found an associated claim against the tortfeasor for exemplary damages. At [39] of its reasons in Thompson, the Court of Appeal specifically rejected this submission, on the basis that such a construction would unduly limit the ‘is’ aspect of this part of the provision. Rather, so the Court held, the words ‘or relates to’ extended the ambit of the provision so that it covered a claim in negligence that related to ‘an intentional act that is done with intent to cause death or injury’ (here, the stabbing by another prisoner). I therefore accept that, as the respondent in this case submitted, [39] was intended to reject the construction of s 28LC(2)(a) for which the State had contended, and not to diminish the significance of the ‘intent to cause injury or death’ element of the statutory criterion.

37    With the decision in Thompson in mind, one turns to the proposed new pleading between [16A and [16D] to determine whether, in making a claim for the recovery of damages for non-economic loss, the applicant has made a claim “where the fault … is, or relates to, an intentional act that is done with intent to cause death or injury”, within s 28LC(2)(a) of the Wrongs Act. For present purposes [16B] and [16C] are particularly pertinent. [16D] can be put to one side since both parties agreed that this paragraph related to economic, not non-economic, loss.

38    Although the applicant’s pleadings in these paragraphs might be better, [16B] indicates clearly enough that the applicant alleges that the facts and circumstances set out earlier in [12A(4)] and [12A(5)] constitute allegations that amount to allegations of tortious assault and battery on him, and false imprisonment of him. In particular, the applicant alleges:

(a)     the physical contact inflicted upon [him] was direct, intentional, and caused him physical and psychological harm; and

(b)     the isolation and seclusion of [him] was direct, intentional, and deprived him of his freedom of movement and personal liberty.

39    It is also clear enough that the applicant’s pleading at this point is intended to cover the essential elements of the three alleged torts. For present purposes, these essential elements can be summarised as follows:

(a)    Battery is constituted by the direct act, whether intentional or reckless, which makes or causes contact with another person’s body, which is either harmful or offensive: Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 (‘Campbell’) at [513] citing Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15; 175 CLR 218 at 311 (McHugh J); see also Carter v Walker [2010] VSCA 340; 32 VR 1 (‘Carter v Walker’) at [215]. To establish the tort of battery, a complainant must prove, on the balance of probabilities, that: (1) the other person made direct contact with the plaintiff’s body; (2) that this contact was intentional; and (3) the contact was harmful or offensive. No particular degree of force is required to establish the first element – the slightest contact is sufficient: compare Binsaris v Northern Territory [2020] HCA 22; 94 ALJR 664; 380 ALR 1 at [41]-[49] (Gageler J). To establish the second element, the complainant must prove that the other person intended to make contact with the complainant’s body but is not required to prove that the person intended to inflict injury or harm or that any actual harm that was in fact suffered was foreseeable: see Carter v Walker at [215]. The third element will be satisfied if the complainant shows that the conduct complained of was insulting or offensive or harmful in some way. “[O]nce battery is established, immediate harm and consequential damage are compensable”: Carter v Walker at [215].

(b)    Tortious assault without battery requires the complainant to prove, on the balance of probabilities, that there was on assault on him by the other person. An assault in this context is an act of intentionally creating in the victim an apprehension of imminent, harmful or offensive contact with their body: see generally Campbell at [513]; ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; 21 VR 559 at [16]; Rixon v Star City Pty Ltd [2001] NSWCA 265; 53 NSWLR 98 at 114. There is no requirement for actual physical contact. To establish tortious assault, the complainant must prove on the balance of probabilities that: (1) the other person, by words or conduct, threatened to inflict harmful or offensive contact upon the complainant and to do so immediately or imminently; (2) in making the relevant threat, it was the subjective intention of the other person that the threat would create in the complainant’s mind an apprehension that it will be carried out immediately or imminently; (3) the threat created an apprehension in the complainant’s mind that it would be carried out immediately or imminently; (4) the apprehension in the complainant’s mind was reasonable when judged objectively; and this apprehension caused, injury, loss or damage to the complainant.

(c)    The tort of false imprisonment is the intentional imprisonment, confinement or restraint of a person without legal justification: see, for example, Campbell at [431]-[433], citing Darcy v New South Wales [2011] NSWCA 413 at [141]-[145] and South Australia v Lampard-Trevorrow [2010] SASC 56; 106 SASR 331 at [282]. To establish this tort, the complainant must establish, on the balance of probabilities, that the other person: (1) intended to imprison, confine or restrain the complainant; (2) the imprisonment, confinement or restraint was against the complainant’s will; (3) the imprisonment, confinement, or restraint was total; (4) as a result the complainant suffered loss and damage, being an infringement of liberty, generally but not always with other loss and damage: see Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740; 381 ALR 375 at [4]-[6] (Kiefel CJ and Keane J); [42] (Gageler J); and [45], [47], [122] (Gordon J). See further McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289; 20 VR 250 at [85]; Myer Stores Ltd v Soo [1991] 2 VR 597 at 599, 625; Watson v Marshall & Cade [1971] HCA 33; 124 CLR 621 at 626; Trobridge v Hardy [1955] HCA 68; 94 CLR 147 at 152; and Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; 4 CLR 379 at 387.

40    Relevantly for present purposes, as the applicant’s pleading recognises, each of these torts has an intentional element. In the case of battery, the other person must intend to make contact with the complainant’s body; in the case of an assault, the other person must intend that the threat creates an apprehension in the complainant’s mind that it will be carried out immediately or imminently; and in the case of false imprisonment, the other person must intend to imprison, confine or restrain the complainant. It was presumably for this reason that it was common ground that the applicant’s claim was concerned with a fault that “is, or relates to, an intentional act”, within s 28LC(2)(a) of the Wrongs Act. As Thompson confirms, however, the provision requires more than just this: the claim to which the provision applies must concern a fault that “is, or relates to, an intentional act that is done with intent to cause death or injury”.

41    The focus of s 28LC(2)(a) is on the act and the intention of the person doing the act that is, or is related to, the fault giving rise to the claim: compare Croucher v Cachia [2016] NSWCA 132; 95 NSWLR 117 at [33]-[34] (Leeming JA, with whom Beazley P and Ward JA agreed). Wilkinson v Downton illustrates that in a ‘Wilkinson’ cause of action the fault giving rise to the claim will be an act done with intent to cause injury, because this is an element of such a cause of action. Further, as Thompson illustrates, s 28LC(2)(a) may be satisfied even though “the fault” giving rise to the claim is not an act involving an intention of this kind, providing the fault giving rise to the claim is related to intentional act that is done with intent to cause death or injury (such as the stabbing in Thompson’s case).

42    Although an intention to do a requisite act is required in each case, none of the torts of battery, assault or false imprisonment require that a complainant establish that that act be done with “intent to cause death or injury”. In consequence, this later element is not contained in the applicant’s proposed new pleading at [16A]-[16C]. There was no express allegation to the effect that the claimed torts said to give rise to the claim involved any act “done with intent to cause death or injury”. As Thompson explains, s 28LC(2)(a) only applies in a case where the fault giving rise to the claim “is, or relates to, an intentional act that is done with intent to cause death or injury”. In consequence, the provision will not apply where that fault is, or relates to, an act of the kind forming part of a cause of action for tortious assault, battery or false imprisonment and no more. The applicant’s submission, at [10] of his written submissions, that s 28LC(2)(a) of the Wrongs Act applies in his case because the actions of the respondent’s “officers, employees and agents were intentional acts constituting claims of assault, battery and false imprisonment in which allegations of an intention to cause injury are contained” must be rejected.

43    I would also reject the applicant’s further and alternative submission, in his written submissions at [11(k)], that s 28LC(2)(a) applies because “[i]t may be inferred … that the officers, employees and agents of the Respondent, by reason of their actions, intended to cause injury” to the applicant. This submission is, as the respondent noted in written submissions, not apparently borne out by subparagraphs 11(b), (c), (g) and (j) of the applicant’s own submissions.

44    As the applicant implicitly acknowledges, the applicant’s proposed pleading does not specifically allege a subjective or actual intention to cause injury on the part of the respondent’s officers, employees and agents. The proposed pleading in [16B] alleges no more than “[t]he physical restraint, isolation and seclusion … constitutes assault, battery and false imprisonment of [the applicant]; in that:

(a)    the physical contact inflicted on [him] was direct, intentional, and caused him physical and psychological ham; and

(b)    the isolation and seclusion of [the applicant] was direct, intentional, and deprived him of his freedom of movement and personal liberty.”

Specific incidents of isolation and seclusion are alleged or said to be documented at [12(4)], [12(4A)], [12(5)], [12(5A)]: see [16A]. In [16C] the applicant alleges merely that “[by] reason of the torts of assault, battery and false imprisonment committed by the employees, officers or agents of the Respondent as aforesaid, [the applicant] has suffered, and will continue to suffer, loss, injury and damage …”, including for non-economic loss.

45    Further, there is no proposed pleading to the effect that any of the respondent’s officers, employees or agents intended “in the amplified meaning given to intention” (see Carter v Walker at [170]) to cause death or injury by any of the acts the applicant alleges they did. That is, there is no allegation in the proposed pleading that these persons proceeded with “reckless indifference” or that their actions were “likely to have [an] effect” of injury or death: compare Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 at [11], [12] (McMurdo P) and [25] (McPherson JA); and Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 at [77]-[80] (Spigelman CJ).

46    Even if there were such an allegation in the applicant’s proposed pleading, there would remain the question whether the words “intent to cause injury or death” in s 28LC(2)(a) of the Wrongs Act require an actual, subjective intent, with the consequence that intention in some amplified sense (whether subjective or objective) is not enough to engage the provision. Since neither party addressed this issue directly, it suffices to note that, after referring to SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (see at [15]-[17] (Kiefel CJ, Nettle and Gordon JJ), [32], [39], [42] (Gageler J) and [60] (Edelman J)), the New South Wales Court of Appeal held in Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294; 103 NSWLR 658 (‘Dickson’) that the same words used in a very similar provision of the Civil Liability Act 2002 (NSW) required a subjective or actual intention: Dickson at [8]-[9] (Basten JA); [19] (White JA); and [186] (Simpson AJA). An intent to cause injury could not be established by recklessness or foresight of an inevitable consequence of conduct or the like. These are, it seems, the kinds of concepts that the applicant seeks to rely on in [11] of his written submissions. Dickson indicates that these concepts are not appropriately used in determining whether s 28(2)(a) applies to the case at hand.

47    For the reasons stated, the applicant has failed to show that his claim falls within s 28LC(2)(a) of the Wrongs Act. As already stated, both parties proceeded on the basis that in this event the applicant would be obliged to provide a certificate of assessment and the accompanying information in accordance with s 28LT of the Wrongs Act. As already stated, an order was made by consent on 10 December 2020 that by 1 April 2021 the applicant:

(a)    serve on the Respondent a certificate of assessment of degree of impairment accompanied by the prescribed accompanying information, in accordance with section 28LT of the Wrongs Act 1958 (Vic); and

(b)    notify Registrar Gitsham that the certificate of assessment of degree of impairment has been served on the Respondent.

The applicant had a change of mind and did not comply with the order. The stated basis for the applicant’s non-compliance has not been made out.

48    In these circumstances, the parties should have an opportunity to consult one another on the orders that they consider should now be made and to provide the Court with a minute of the orders they seek at this stage. I would therefore make orders with this object in mind.

Associate:

Dated:    14 January 2022