Intentional Torts: Civil Claims, Remedies & Defences to Sex Abuse,

Assault and Battery - A New Paradigm – by P. G. HAMILTON1

We may give it little thought today, but intentional tort claims are ancient,
much older than the “duty of care” in negligence and many other causes of
action.
It is, therefore, somewhat surprising that new life is being breathed into
these ancient causes of action, where wrongs once ignored are being acted
upon through our courts.
This paper seeks to look afresh at the elements of intentional tort claims,
including police tort claims, defences, evidentiary issues, and limitation
periods.
Common Intentional Tort Claims
Traditionally, there are said to be two forms of tort, or civil wrongs –
trespass2 and an ‘action on the case’. Trespass included trespass to a
person, such as hitting a person or wrongfully imprisoning them, today
more commonly described as intentional torts. Causes of action on the case
concerned all personal wrongs and injuries caused without force, for
example the neglect or want of skill of physicians and surgeons. 3
In his seminal work of 1765, Commentaries on the Laws of England,4 Sir
William Blackstone,5 doubtless a member of the legal pantheon, spoke of
various intentional tort claims against the person, adding the maxim ‘for
every wrong there is a legal remedy’. He listed them thus:
1. threats – he described as menaces of bodily hurt, whereby someone
threatens to harm you and affect your business affairs while doing so;
2. assault – an attempt or “offer” to beat you or a strike or near-miss;
3. battery – an unlawful beating, not in self-defence;
4. wounding – an aggravated form of battery;
5. mayhem – violently depriving you of important body parts, mostly
limbs, to be able to defend yourself in a fight;
6. malicious prosecution – prosecuting you without a “tolerable ground of
suspicion”;
7. false imprisonment.
1
This is the written paper of a talk by Peter Hamilton on 22 August 2018, chaired by
Aine Magee QC. Christine Willshire also presented. The writer would like to thank
his many VicBar colleagues who provided useful feedback on drafts.
2
Meaning literally “to pass across”, but for present purposes to mean “any direct
interference with the person, goods or property of another without lawful
justification”: Butterworths Australian Legal Dictionary at [1190].
3
Blackstone, Commentaries on the Laws of England, Vol 3, page 120. Actions on the
case were an early form of negligence.
4
Vol 3, page 120.
5
1723 – 1780.

1
Scholars Luntz and Hambly6 discuss that these remedies have been
available since time immemorial in an effort to keep the peace and prevent
retaliation. Professor Fleming7 adds that such damages are available as a
punishment. He also offers that these actions provide an important
safeguard where the State fails to prosecute a wrongdoer. There is also the
issue of appropriate recompense, that may not be available through other
avenues.8
Perhaps with the exception of “mayhem”,9 little seems to have changed all
these centuries hence. It is especially interesting that, unlike claims in
negligence, there has been limited statutory intrusion into this area, with
few references cropping up throughout the Wrong Act 1958 (Vic), for
example.
The phrases ‘intentional tort’ or ‘trespass to the person’, are perhaps,
misleading or at times written about in Delphic or ambiguous terms in
judgments, depending on the context of the claims. Commonly, such claims
are looked at by the voluntariness of an act and, at other times, as requiring
an intention to have injured the plaintiff in one form or another. More
confusingly, sometimes want of care is enough to establish an intentional
tort and can be described as a tort itself, namely “negligent trespass”
(although such claims would more commonly be brought in negligence.) 10
Some of this confusion might be abated by adopting the distinction of
intentional torts and negligence proffered by Professor Stanley Yeo. 11 The
Professor sees the difference being one of subjective intention (intentional
tort) versus objective analysis (suit in negligence):

 an intentional tort is a subjective test – one considers whether the

defendant consciously and voluntarily brought about the result by
their actions e.g. did they strike someone consciously and
voluntarily. That would be enough to succeed. It is not about
consequences or foreseeability;
 a claim in negligence is an objective test – one considers whether the
act or omission fell short of an objective standard of care required of
a reasonable person in the defendant’s position. To that extent, it is
irrelevant whether the act was done with intent, because an
unintentional or careless act may well fall below what was expected
of a reasonable person in the defendant’s position.

6
Torts: cases and commentary, 5th Ed, at [657].
7
Fleming’s the law of torts, 10th Ed, at [2.70].
8
Such as victims of crime legislation or Sentencing Act claims.
9
It is none too surprising that I was unable to find reference to such a cause of
action in today’s leading text, Fleming’s the Law of Torts, 10th Ed.
10
See Halsbury's Laws of Australia at [415-335].
11
In his paper Comparing the Fault Elements of Trespass, Action on the Case and
Negligence, available at:
http://classic.austlii.edu.au/au/journals/SCULawRw/2001/6.pdf.

2
The Elements of Intentional Tort Law Claims – and some examples12
Assault
Assault, in the legal sense of the word, is not to be confused with battery. It
is about words and actions, not physical contact.
The essential elements are:
1. that the defendant threatened the plaintiff with harm or violence, be it
through words or actions. Breathing into the phone was enough to
establish a ‘threat’ in R v Ireland [1998] AC 147;
2. the threat was made with the intention to threaten or scare the
plaintiff, applying a subjective test of intention; and
3. it is irrelevant whether the defendant intended to go through with the
threat – it is about the plaintiff’s perception (such perception
considered objectively).
The Civil Juries Charge Book13 suggests that a plaintiff must also establish
some loss from the assault to succeed in the claim. However, that appears
questionable for reasons I will come to about how intentional torts differ in
their view of loss as an essential ingredient to succeed in the action, as
compared to negligence claims.
EXAMPLE
An assailant breaks into the bank you work at. He holds a gun near your
head and asks you to open the safe. You fear for your life and open the safe,
handing over millions to him. Later, you sue the assailant who, for reasons
surprising to all, owns millions in assets. It turns out the gun was not
loaded, the assailant had no bullets and the assailant denies ever intending
to harm you. You sustain no physical injury.14
This is a classic example of an assault as opposed to a battery. You were
threatened with harm or violence. The assailant intended to scare you and
did indeed scare you. When viewed objectively, that behaviour would
reasonably have scared you. It does not matter that the assailant never
intended to shoot you, because it is about the fear of the victim reasonably
believing they are in danger of a battery being committed on them, not in
proving the assailant’s ability to follow through with the threat. It resulted
in you sustaining mental or psychiatric injury. In a way, it can be seen as
an early recognition of ‘nervous shock’ and psychiatric injury.
But what about if you got into an oral fight with someone, you stirred them
up into a frenzy and eventually, in a fit of pique, they threatened to kill you?
Is provocation a defence to the claim? What about contributory negligence?

12
All examples are based on reported cases.
13
At [2.2.2].
14
For the elements in more detail, see ACN 087 528 774 P/L (formerly Connex Trains
Melbourne P/L) v Chetcuti [2008] VSCA 274 at [16].

3
Save for some statutory provisions, it appears that such defences are not
available.15
If the threat is carried out, it is called an ‘assault and battery’.
Battery
A battery is impermissible contact with another.
The essential elements are:
1. there was physical contact/interference (which can even extend to
things like spitting or by pouring water on the plaintiff);
2. the physical contact was done intentionally and voluntarily by the
defendant;
3. it was a direct action on the plaintiff by the defendant; and
4. the contact caused the plaintiff some harm or was offensive - contact
such as an accidental bump while walking in the street will not suffice
as this falls within acceptable, everyday contact.
EXAMPLE
Your maths teacher is running late for class. Students run amok in the
classroom. With no intention of causing any great harm, your classmate
sticks his leg out to stop you moving past him, causing you to trip, and fly
through the air, whereupon you smash your face against a desk, fracturing
your cervical spine.
This is a classic case of battery. 16 There was physical contact with you. The
act was intentional or voluntary, because the student meant to strike you.
It was a direct action that affected you. Although he did not mean to cause
you injury, it was harmful to you. You are therefore entitled to damages for
the harm and consequential damage this caused you. 17
But what if the student brushed your leg and not in anger? While anger is
said not to be definitive, like two people accidentally coming into contact on
the street, that is unlikely to be a battery. 18 Some contact is seen as
acceptable and not, therefore, a battery.
15
See ACN 087 528 774 P/L (formerly Connex Trains Melbourne P/L) v Chetcuti [2008]
VSCA 274 at [11]. See also section 25 of the Wrongs Act 1958 (Vic), which appears
to limit contributory negligence to actions in tort for negligence where available at
common law or breaches of a contractual duty of care that is co-extensive with a
duty of care in tort.
16
For the elements in more detail, see Carter & Anor v Walker & Anor [2010] VSCA
340 at [214].
17
The harm and consequential damage must have been a “natural and probable
consequence” of the battery, a test not identical, but similar to, reasonable
foreseeability. Even if a plaintiff suffers no harm, the direct contact is still
actionable as a battery, although presumably compensatory damages would be
nominal. (See Carter v Walker)
18
Perhaps this is because some touching in everyday life brings with it implied
consent: see Collins v Wilcock [1984] 1 WLR 1172 per Lord Goff, cited in Rixon v Star
City Pty Limited [2001] NSWCA 265.

4
Or what if you had first punched the student? For him to get away, he
struck your leg and you fell. Or what if he kicked you to stop you from
harming another student? Self-defence and defence of others are both
defences to this tort.19
False imprisonment
The term ‘false imprisonment’ is what it says, wrongly withholding
someone’s liberty. A writ of habeas corpus can be issued to release the
person wrongfully detained. But what about a claim for being wrongfully
imprisoned?
The essential elements are:
1. the defendant intended to restrain the plaintiff;
2. the plaintiff did not volunteer to be restrained; and
3. there must be no ability for the plaintiff to leave the imprisonment or
confinement.
EXAMPLE
You are shopping at Myer. A shop assistant believes you had previously
stolen from the store. Coincidentally, two police officers are present near
the store. You are taken by a Myer staff member and the officers to the
security office for questioning, without being offered a choice. Later, you
voluntarily go to the police station to plead your innocence.
The officers and Myer’s store member intended to restrain you for
questioning and did not give you the opportunity to say no. While there was
no use of force, you felt compelled to attend. Your liberty was taken away
fully, and you were extremely distraught of being accused of stealing and of
the whole experience. This appears to be a false imprisonment. There is no
need to establish any damages flowing from the false imprisonment, but
distraught feelings are compensable as compensatory damages for
intentional torts.20
On the other hand, voluntarily attending the police station to plead your
innocence is unlikely to be false imprisonment because you were not
restrained against your will.
Claims become somewhat more clouded when one is imprisoned under a
warrant, for example, but it is for a defendant to establish lawful
justification.21 A plaintiff does not need to prove the imprisonment was
unlawful to establish a prima facie false imprisonment claim.

19
For a further discussion, see the Civil Juries Charge Book, 2.2.1.
20
Because the tort is treated as giving rise to some damage without proof: Halsbury's
Laws of Australia at [415-50]. On the other hand, negligence is about consequential
damage from the wrong: Letang v Cooper [1965] 1 QB 232 at 239 per Lord
Denning MR.
21
Myer Stores Ltd v Soo [1991] 2 VR 597.

5
Malicious prosecution
This concerns the launching of a prosecution falsely and action that can be
taken after an innocence finding.
The essential elements are:
1. did the defendant prosecute or play a principal role in the prosecution
of the accused/plaintiff;
2. the accused/plaintiff was vindicated, that is, the charges were
dismissed;
3. that in bringing or playing a role in bringing the prosecution, there was
‘malice’, that is, it was brought about for an improper purpose, for
example brought about by ill-will against the accused/plaintiff or
whether it was honestly brought against the accused/plaintiff.
EXAMPLE
You have an acrimonious relationship with your neighbour. You had
refused building developments through VCAT and the neighbour was out to
get you. She made up that you indecently exposed yourself to her, said she
would give evidence on oath, and encouraged the police to prosecute you.
The Magistrate on the committal dismissed all charges and found that the
neighbour had made up the allegations as ‘pay back’.
The neighbour played an important role in the police bringing the
prosecution. The proceeding was resolved in your favour and the neighbour
brought the allegations to police for the improper purpose of punishing you.
It appears to be a good case of malicious prosecution against the neighbour.
Commonly, of course, such claims are brought against the State who brings
the prosecution, but as this example evidences, these claims are not limited
to the State through its public prosecutors.
The Wilkinson tort – intentional infliction of harm
Wilkinson v Downton22 concerned a case, before the law of negligence for
nervous shock was recognised, that considered whether there was a tort for
the intentional infliction of harm on another. Here, a plaintiff was injured
when, falsely, she was told her husband had been in a serious accident.
If a defendant wilfully does an act calculated to cause physical harm
(including psychiatric injury), a plaintiff may sue the defendant for the loss
from that physical harm (including psychiatric injury).
There is some debate about how far ‘physical harm’ goes. Certainly, a
recognised psychiatric injury is captured, but a debate remains about
whether it could include emotional distress, humiliation or other forms of
emotional discomfort (as opposed to a recognised psychiatric injury), to
which I now turn.
22
[1897] 2 QB 57.

6
Intentional infliction of emotional distress
In Giller v Procopets,23 this former de facto couple had consensual sex. Some
of those acts were filmed (with Giller’s knowledge). After their relationship
broke down, Procopets said to Giller that he had shown or threated to show
others the film of their sexual adventures.
Among other things, Giller sued Procopets for the alleged intentional tort of
intentional infliction of mental distress, not being able to demonstrate a
recognised psychiatric injury of the Wilkinson v Downton type.
Justices Neave and Ashley held that no such intentional tort was yet
recognised in Australia. President Maxwell dissented and, taking a Kirby J-
like approach to legal development, said that there was no reason to restrict
this intentional tort claim based on old tort-law strictures.
The Court did, however, allow damages for the tort of breach of confidence,
based on the confidential relationship between those parties at the time of
the consensual acts.
Of course, such a decision does not prevent a claim by that person against
another under the Wilkinson tort as noted, nor, for that matter, in
negligence for pure psychiatric injury, such as in Tame v New South Wales,24
nor a claim that third parties were liable in negligence for the intentional
acts through their own negligence, if one can overcome the hurdles placed
before them under cases such as Modbury Triangle Shopping Centre Pty Ltd
v Anzil.25
Defences - consent, necessity and discipline
As with other intentional torts, and negligence (voloenti non fit injuria),
consent is a defence to such a claim, or perhaps better categorised as a
means to prevent a plaintiff from establishing the elements of their claim.
For obvious reasons, consent features heavily in sexual assault claims. The
central issue in sexual assault claims is whether a defendant went beyond
consent or whether consent was genuine or begot through threat or fraud,
vitiating the consent.
If a defendant establishes the conduct was reasonably necessary to protect
the plaintiff or someone else, or in self-defence (the defence of necessity),
generally speaking that defendant has not committed an assault or battery.
Self-defence, of course, must itself be reasonable or proportionate, when
considering all the circumstances.

23
(No. 2) [2008] VSCA 72; (2008) 24 VR 1.
24
[2002] HCA 35; 211 CLR 317. See also section 23 and Part XI of the Wrongs Act
1958 (Vic) permitting claims purely for mental or nervous shock.
25
[2000] HCA 61; 205 CLR 254.

7
Likewise, some leeway has been given for parents, schoolteachers and
Armed Forces personnel in disciplining others and may not be considered an
intentional tort.
Evidently enough, another available defence to an intentional tort is
committing a lawful arrest or preventing a crime. However, the defence is
limited to ‘reasonable force’26.

Compensatory damages, and aggravated and exemplary damages

Damages for breaches of intentional tort, like for other torts, are to put the
victim back in the position they would have been if the tort not occurred.
However, as noted above, while in damages claims in negligence some
damage has not been recognised as compensable, for instance upset
feelings, damages for intentional torts can be more encompassing, and do
not require a recognised psychiatric response to the incident.
Moreover, some damage does not have to be proved, unlike in a claim in
negligence where consequential loss is an essential ingredient to the action.
To use the legal parlance, then, intentional tort claims are ‘actionable per
se’, without establishing loss. Obviously if no loss is established, a plaintiff
would only establish an entitlement to an award of nominal damages.
What’s more, aggravated damages are said to be available, as a rule, over
and above other heads of damage to compensate victims of intentional torts
for “insult, humiliation and the like” 27 and can be given for the Defendant’s
conduct, including its denial of the allegations and failure to apologise.
Such damages may even be available where compensatory damages are
nominal.
Exemplary damages, too, are frequently awarded in these claims. Such
damages are designed to punish a defendant and make it known that the
court condemns the behaviour of a defendant.
Why an intentional tort claim over a claim in negligence?
As some of the above examples demonstrate, there are a number of reasons
a plaintiff may wish to pursue a claim in intentional tort rather than
negligence (or solely in negligence), which may include:

 difficulty establishing one or other of the elements of negligence;

 establishing loss (or damages), as this is not required for intentional
torts and a claim can be pursued for nominal damages and
exemplary damages;28
26
Halsbury’s Laws of Australia, at [533].
27
De Reus & Ors v Gray [2003] VSCA 84 at [28].
28
See for e.g. Fatimi Pty Ltd v Bryant and Others (2004) 59 NSWLR 678. Cf a claim in
negligence, discussed in Williams v Milotin [1957] HCA 83 at [15] “The essential
ingredients in an action of negligence for personal injuries include the special or

8
  the ability to seek to claim general damages without a Significant
Injury Certificate under section 28LC(2)(a) of the Wrongs Act 1958
(Vic);29
 the availability of damages unfettered by statutory caps and
minimums for various heads of damage under the Wrongs Act 1958
(Vic) for sexual assault or other sexual misconduct claims;30
 difficulty establishing compensable damages in a negligence sense,
particularly as regards recognised psychiatric injury and as
compared to actionable per se claims;
 contributory negligence and other defences and restrictions on
damages may not apply to intentional tort claims;
 establishing an intentional tort may well result in obtaining
aggravated or exemplary damages;
 media attention impacts of allegations on juries and other
considerations may apply.
There is also some debate about whether one can bring a claim both in
trespass for intentional interference to the person and in negligence. 31 There
no longer seems any reason in principle that one cannot bring a claim
alleging either or both intentional tort and negligence arising out of the same
factual scenario and one can see in many cases a significant overlapping of
the two.32
For example, in a medical case, if a doctor proceeded with treatment that
had no therapeutic benefit or was performed only to defraud the patient,
that ought to vitiate the consent the patient gave and would thus be a
battery. Alternatively, if there was some therapeutic benefit to some or all of
that treatment, it could be said that the treatment was performed
negligently because a reasonable doctor in the position of the defendant
would not have proceeded with the treatment. It would be absurd to shut a
plaintiff out in bringing the claim in two alternative ways. 33

particular damage - it is the gist of the action - and the want of due care. Trespass
to the person includes neither.”
29
Which provides that, for injuries concerning “an intentional act that is done with
intent to cause death or injury or that is sexual assault or other sexual misconduct”,
a plaintiff does not require a Significant Injury Certificate to claim general damages.
30
See section 28C(2)(a) of the Wrongs Act 1958 (Vic).
31
For a discussion on the old distinctions see MacCormack G.D., The Distinction
Between Trespass And Case Williams V. Milotin,
http://www.austlii.edu.au/au/journals/SydLawRw/1959/17.pdf.
32
As seemed to have been suggested by Williams v Milotin [1957] HCA 83 at [6] in
which the Court said “Had the damage been caused indirectly or mediately by the
defendant or by his servant (a state of things to be distinguished from violence
immediately caused by the defendant's own act) the action must have been brought
as an action on the case and not otherwise.” There followed reference to a series of
British cases. However, as Professor Yeo explained in his article quoted above, this
was based on pre-Judicature system authority that is no longer relevant, that
system fusing the disparate legal systems of the United Kingdom.
33
See White v Johnston [2015] NSWCA 18, on which this example is based.

9
In a sexual assault case,34 where the plaintiff was out of time to proceed in a
claim in intentional tort, he couched his claim in negligence, relying on a
limitation period extending time for the onset of psychiatric injury. 35 The
defendant relied on an old line of authority that a person could not claim in
negligence for an intentional and direct act that caused him harm. The
Court of Appeal of Tasmania disagreed and allowed him to proceed in
negligence. Special leave to appeal to the High Court was refused. 36
If a plaintiff succeeded in establishing an intentional tort, there is some
suggestion that that would subsume the claim in negligence, such that
compensatory and other damages would be awarded for the intentional tort,
presumably at least in part because any negligence claim becomes
redundant.37
Concurrent criminal prosecutions and civil actions
In many intentional tort claims, the defendant is also the subject of a
criminal proceeding against them.
There is an important High Court of Australia case setting out the usual way
that such claims should proceed, Commissioner of the Australian Federal
Police v Zhao.38
If a defendant in a civil action has to give evidence before the criminal
matter, there may well be a real risk of prejudice to them. Unless a plaintiff
can establish a real risk of prejudice themselves, it seems the appropriate
course is for the civil proceeding to be stayed subject to the criminal
prosecution’s outcome. Generally speaking, this would be in a plaintiff’s
interests in any event, because a criminal finding is relevant to issues of
liability in a civil case, but not the other way around. 39
Entitlement to damages for non-economic loss (general damages)
On 25 October 2019, the Victorian Court of Appeal handed down a significant
decision of State of Victoria v Allan Thompson [2019] VSCA 237 (per Beach and
Osborn JJA, and Kennedy AJA). This case deals with the application of the
‘significant injury’ threshold for damages for non-economic loss in cases
concerning or relating to an intentional act under the Wrongs Act 1958 (Vic).
34
Wilson v Horne [1999] TASSC 33.
35
Which would not be relevant to a personal injury claim in Victoria because,
regardless of how the claim is framed, the limitation period is the same for such
injuries (other than unrelated exceptions for claims arising e.g. out of employment or
for motor vehicle accidents) – see section 27B of the Limitation of Actions Act 1958
(Vic).
36
Wilson v Horne H6/1999 [1999] HCATrans 516.
37
See, for example, De Reus & Ors v Gray [2003] VSCA 84 at [17].
38
[2015] HCA 5.
39
See section 92(2) of the Evidence Act 2008 (Vic). Evidence of a finding of ‘not guilty’
is not relevant to the civil standard, because of the difference in proof – ‘beyond
reasonable doubt’ versus ‘the balance of probabilities’.

10
Thompson brings his claim against the State in negligence and breach of
statutory duty arising from a stabbing by a fellow inmate at Dhurringile Prison,
Murchison.40

The Plaintiff seeks damages for non-economic loss against the State without
having satisfied the ‘significant injury’ threshold required under Part VBA of the
Wrongs Act 1958 (Vic).

Section 28LC(2) provides, relevantly:

(2) This Part [Part VBA] 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;

...

In this dispute, the Plaintiff contended that his claim against the Defendant
‘relates to’ an intentional act done by the fellow inmate. Thus, although his
case is in negligence and breach of statutory duty against the Defendant, it
‘relates to’ an intentional act.

The Defendant submitted that he would only be entitled to seek damages for
non-economic loss without satisfying ‘significant injury’ as against the
perpetrator of the intentional act, not a third party.

The Court held that the Plaintiff did not require a ‘significant injury’ to claim
damages for non-economic loss. His claim against the State related to an
intentional act of the fellow inmate and that was enough to meet the exclusion
in section 28LC(2) on its plain wording. There was no justification for
narrowing this provision to claims brought against the perpetrator only, or to
vicarious liability cases.41 Unlike the first instance judge, the Court said it did
not need to rely on the principle of legality to come that this conclusion. 42

Other noteworthy aspects of the decision are:

40
This decision arises from a fight on the pleadings about ‘significant injury’.
41
See paragraph 17 and footnote 5.
42
That, unless there is clear language in the statute, parliament is presumed not to
take away common law rights.

11
 if the case concerns allegations of an intentional act, and in the alternative
a mere negligent infliction of harm, a plaintiff will require a ‘significant
injury’ for the claim in negligence;43
 claims to which the exception to ‘significant injury apply’ are not limited to
intentional acts done with intent to cause injury, such as is recognised by
Wilkinson v Downton,44 but extend to alleged intention to cause injury
claims, such as battery, assault and false imprisonment;45
 the relevant Part VB exception for intentional acts, section 28C(2)(a),
which restricts damages in personal injury claims pursuant to various of
the Ipp reforms, is narrower in its application than Part VBA’s exception
for intentional acts. This is because section 28C(2)(a) does not include the
words “or relates to” an intentional act. 46 It therefore appears a case like
that against the State would not meet its definition. However, even section
28C(2)(a) would appear to include actions against the perpetrator of
intentional acts of battery, assault and false imprisonment and other such
claims.47

Future cases

For all cases which concern or relate to an intentional act, including Wilkinson
v Downton claims, and an assault, battery or false imprisonment, whether or
not the Plaintiff claims against the perpetrator or some third party in negligence
or breach of statutory duty, this case makes it plain that the Plaintiff does not
require a ‘significant injury’ to seek damages for non-economic loss.

On the other hand, if the case involves allegations of both an intentional act but
in the alternative a wrongful, but not intentional act, to seek damages for non-
economic loss, a Plaintiff will require a ‘significant injury’ for the alternative
wrongful act or omission case.

Police Torts and Claims Against the State

43
Paragraph 35.
44
[1897] 2 QB 57.
45
Paragraph 39.
46
Paragraph 31.
47
Paragraph 39.

12
Claims for damages against police officers and protective services officers 48
are now governed by the Victoria Police Act 2013 (Vic). The Act only applies
to the extent the officers are performing or purporting to perform their
duties.
Even though, in effect, the claim is made because of an officer’s civil wrong,
the claim must be brought against the State. The officer may only be joined
individually if the State pleads in its defence that either (a) the officer’s
conduct was serious or wilful misconduct 49 or (b) if the tort is established, it
is not a ‘police tort’.50
If an officer is jointly liable with a non-officer, the Act does not apply to the
non-officer and does not seek to inhibit or otherwise affect a claim against
the non-officer.51
A ‘police tort’ is defined in section 72 of the Act in broad terms. ‘Police tort
claims’ are referred to in similar terms in section 73 of the Act.
There is nothing in the Act that limits a claim against an officer to certain
types of torts. While unclear, it is probable that the common law continues
to apply or at least offers guidance on the tort claims available.
Tracing back the common law steps, in 1989, the then House of Lords in
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 considered the
duty of police officers to community members.
In that case, a mass murderer, Sutcliffe, had slain Ms Hill. Before her death,
the police had interviewed Sutcliffe, and chosen not to follow further leads.
Not long after, Sutcliffe took the life of Hill. Hill’s mother brought a suit for
damages against the police’s Chief Constable. She said the police were
negligent. She said that that negligence led to her daughter being murdered.
The Constable was successful in applying to have the claim struck out as
having no reasonable prospects of success. Lord Keith (who wrote the
Court’s leading speech) accepted that, officers, like others, may be liable for
acts or omissions committed by them in their position as officers, including
for assault and battery, unlawful arrest, wrongful imprisonment, malicious
prosecution and negligence. The Law Lord accepted also that officers owe a
duty to the general public to enforce the law, but found it a step too far to
say a duty was owed to ensure the police took reasonable steps to prosecute
Sutcliffe before he attacked Hill, partly for public policy reasons and
resource issues. His Lordship therefore concluded that, to the extent the
duty was alleged in that case, the police were said to be immune from suit.
48
Which officers are referred to in Part 3, Division 7 of the Act as providing services
for the protection of (a) persons holding certain official or public offices; and (b) the
general public in certain places; and (c) certain places of public importance (see
section 37).
49
Section 74(2).
50
Section 75(2)(b).
51
Section 80.

13
It would be wrong to interpret this case as providing a general immunity
from suit and that has certainly not been the Courts’ approach since Hill.
In the leading, pre-Act, Victorian case of State of Victoria & Ors v Richards,52
Redlich JA found that there was no general immunity from suit enjoyed by
police officers acting in the performance of their duties. That case concerned
a third party being pepper sprayed while a police officer was arresting a
person near her. His Honour found that such a duty could well exist and
permitted the case to proceed to trial. The learned Judge noted that a duty
of care may even exist vis-à-vis a subject of a police operation 53, but the
extent of the duty owed and whether it is breached would seem to turn on
the facts of each case.
Having said that, it appears impermissible to bring a claim against the State
itself for the State’s own liability for failing, for example, to instruct or train
its officers in performing their duties in a particular way. An appropriate
officer or officers would presumably need identifying to bring that aspect of
the claim under the Act. So much seems clear from the Act itself and claims
generally against the State, which are limited, at least in tort, to vicarious
liability for acts and omissions of identified servants or agents. As
illustrated by Salt v State of Victoria, a plaintiff must be able to identify a
54

servant, agent or independent contractor for whose negligence the State is

liable to bring the claim home to the State, although it should be added that
police officers are not considered officers of the State, but of the public
service.55
Evidentiary Issues in Intentional Tort Claims
There are some evidentiary issues peculiar to intentional tort claims, and in
particular to sexual abuse claims. I wish to address three, tendency and
coincidence evidence, self-incrimination, and access to medical records of a
complainant of sexual abuse.
Tendency and coincidence evidence
For those practising in criminal law, ‘tendency and coincidence’ evidence
will be a familiar phrase. But it should also be familiar to those practising
in the civil jurisdiction, as evidentiary rules for such evidence apply in both
jurisdictions.
Tendency evidence is evidence used to assist in proving that a defendant
acted or thought in a particular way - put another way, that the defendant
had a tendency to do the very things alleged in the claim. Coincidence
52
[2010] VSCA 1131. And before that, Zaleswki v Turcarolo [1995] 2 VR 562.
53
at [20].
54
[2017] VSC 6.
55
Police officers are not considered to be servants or agents of the Crown or
independent contractors employed by the Crown: see section 23 of the Crown
Proceeding Act 1958 (Vic), section 74 of the Victoria Police Act 2013 (Vic) and Part 3 of
the Public Administration Act 2004 (Vic).

14
evidence is evidence of previous events that have occurred which make it
unlikely the events alleged did not happen - in other words, it is no
coincidence the events occurred as alleged because they had happened
previously.
Such evidence could be seen as circumstantial evidence or evidence relying
on inference.
As one can imagine, such evidence could arise in any factual scenario.
However, it is particularly common in alleged historical sexual abuse cases.
In GGG v YYY,56 for example, tendency evidence was used of sexual assaults
of other boys alleged against the defendant to establish a tendency for the
defendant to be attracted to children 57 and to commit sexual acts on them.
The evidence assisted the Court conclude that the events alleged by the
plaintiff were more likely than not to have occurred.
It is important for those acting for plaintiffs and defendants alike to be
aware of the way such evidence is admitted and its limitations. These are
found in Part 3.6 of the Evidence Act 2008 (Vic), replacing common law
principles in this area58. Practitioners should also be aware of the leading
High Court authorities on tendency evidence, including IMM v The Queen.59
That case highlights the care the Court must take in determining whether
the evidence, in truth, is of significant probative value to meet the Evidence
Act test. For example, the Court, by a majority, determined that evidence of
a sexual interest in the complainant from a prior uncharged event was not
admissible as tendency evidence that the accused committed the later
sexual offence.60 There is also the case of Hughes v The Queen61 which
arguably takes a less narrow approach than IMM, and in particular of the
Victorian Court of Appeal’s approach in Velkoski v R,62 the majority noting:63

56
[2011] VSC 429.
57
Although that finding needs to be considered in the light of IMM v The Queen
referred to in the next footnote.
58
See Hughes v The Queen below.
59
[2016] HCA 14, in particular relating to the meaning of “significant” probative value
at [46] and [103], and general issues about assessing the admissibility of such
evidence, including that its admissibility must be assessed by considering the
highest or best use to which it could be put. The case, by majority, also resolved the
tension between Victorian and New South Wales approaches to the use of tendency
evidence, with Nettle and Gordon JJ preferring the Victorian approach about
assessing the credibility and reliability of the evidence to determine whether
tendency evidence is admissible, rather than the NSW approach of presuming that
the evidence is relevant and credible and proceeding to analyse the admissibility of
the evidence under tendency without those considerations. For a further
discussion, see Odgers Implications of IMM v The Queen [2016] HCA 14 available at
http://inbrief.nswbar.asn.au/posts/7be4753ee4e26b4fd93440f8190772ae/
attachment/The%20implications%20of%20IMM%20v%20The%20Queen.pdf.
60
See [63]-[64], but cf [178].
61
[2017] HCA 20.
62
(2014) 45 VR 680.
63
At [42].

15
 “Unlike the common law which preceded s 97(1)(b), the statutory
words do not permit a restrictive approach to whether probative value
is significant.”
The evidence must have significant probative value 64 to be admissible, that
is, the evidence needs to be particularly relevant, probative or compelling to
be admitted.
Moreover, the plaintiff must give the defendant notice of its reliance on such
evidence by use of a tendency and coincidence notice. 65 Not infrequently,
one sees in trials the use of such evidence without a party having gone
through the required steps.
Such evidence could also be used when a plaintiff is suing an organisation
as vicariously liable for the acts of its member, as that evidence could, at
least in theory, increase the probability of the defendant being aware of the
abuse occurring within the organisation. Such allegations can also affect
pleadings and discovery.66
Self-incrimination
In some cases, alleged perpetrators who are sued might object to give
evidence on the basis of self-incrimination. 67 Those acting for such persons
ought to be aware of their client’s rights in this regard, including the ability
to ask the Court for a certificate so that that client can give evidence without
fear of it being used in a later prosecution.
On the other hand, those acting for plaintiffs ought to be aware, not only of
the Jones v Dunkel principle that can apply (although will not if self-
incrimination privilege is legitimately taken), 68 but more importantly of the
principle that a Court ought to accept unchallenged evidence of a witness,
unless that evidence was “reasonable and inherently probable”. 69
Medical records of a complainant of sexual abuse
For civil claims concerning a “sexual offence”, 70 practitioners need to be
familiar with Division 2A of Part II of the Evidence (Miscellaneous Provisions)
Act 1958 (Vic).

64
“Probative value” evidence is defined in the Act to mean “evidence [that] could
rationally affect the assessment of the probability of the existence of a fact in issue”.
65
Section 99 of the Act, although section 100 allows the dispensing of such evidence.
66
See for e.g. Skarbek v The Society for Jesus in Victoria & Ors (No 2) [2016] VSC 748.
67
See sections 128 and 128A of the Evidence Act 2008 (Vic).
68
Permitting the Court to conclude that the missing witness’s evidence, if their
absence is unexplained, would not have assisted the party’s case who ought to have
called that evidence, and to permit the Court to more readily accept the other party’s
evidence.
69
See Duffy v Salvation Army (Vic) Property Trust [2013] VSCA 253 at [46]-[48].
70
See Schedule 1 of the Sentencing Act 1991 (Vic) for the various offences falling under
the rubric of “sexual abuse”.

16
While no civil action could be said to be a prosecution for a “sexual offence”,
section 32C provides that Division 2A applies to “legal proceedings”
generally, including civil claims for damages. Section 32AB, however, which
are the guiding principles of this Division, provides that the legal proceeding
merely “relates (wholly or partly) to a charge for a sexual offence”. It may
thus be arguable in some cases that, if there is no ‘charge’ of a sexual
offence, then sexual assault civil claims do not come within these
provisions, but as far as I am aware, this provision has not yet been tested,
and sections 32AB and 32C remain somewhat at odds.
If Division 2A applies to the civil claim, these provisions prevent a party from
compelling another party or medical practitioner to produce or give evidence
of “confidential communications” of medical practitioners and counsellors
and applies to both written and oral evidence, including evidence to be
adduced in a trial.
Prima facie, such evidence is excluded in a proceeding and a defendant
cannot obtain or adduce such evidence and the party requires the Court’s
leave to do so. This is the result of legislative changes in 1998 to encourage
victims of sexual abuse to obtain treatment from their doctors without fear
of their records being used against them, among other reasons set out in
section 32AB of the Act.
A defendant must seek leave of the Court before seeking such material
records under subpoena71, before being entitled to inspect documents
produced under subpoena and adducing such evidence. Being granted
leave in respect of one step in that process does not necessarily mean leave
will be granted at the next step.72
Medical practitioners themselves have standing to take issue with producing
such records, as occurred in Skarbek v The Society of Jesus in Victoria & Ors
[2016] VSC 622. Courts may call for production of the documents to allow
the judge to inspect the material and decide whether leave ought to be
granted to inspect those records.73 Courts may also restrict access to
documents if a medical practitioner is called upon to produce those
documents.74
For the Court to grant leave at any of the stages mentioned, it must be
satisfied each of the following criteria (with the onus on the party seeking
access to establish that leave should be granted):
1. that the evidence will have substantial probative value; and
2. other evidence of such value is not available; and

71
Although it is not limited to the subpoena process.
72
Sexual Assault Manual of the Judicial College of Victoria at [11.2], citing SLS v R
[2014] VSCA 31 at [233] and noting that, if leave is granted at one stage, and if the
status quo applies, it is more likely leave will be granted at a later stage.
73
Section 32C(6).
74
As occurred in Skarbek v The Society of Jesus in Victoria & Ors.

17
3. the public interest in maintaining confidence in the material is
outweighed by the public interest in having the evidence available.
In other words, it is a far more onerous test than the usual test for
establishing the subpoena is not ‘fishing’, that is to say, that the documents
sought have a legitimate forensic purpose. 75 The Court must also consider
each document or class of documents separately, rather than take a broad-
brush approach.76
In K R v B R & Anor,77 the Court formed the view that, for the obtaining of
records under subpoena, an applicant must first seek leave of the Court to
issue that subpoena. The case also looked at waiver and whether the use by
the plaintiff of some medical evidence meant that a defendant ought to be
granted access the further documents under general waiver principles,
despite Division 2A of Part II of the Act. The Court concluded that waiver
was relevant, but only within section 32D(2)(f), namely by considering “the
nature and extent of the reasonable expectation of confidentiality and the
potential prejudice to the privacy of any person”.
In so far as claims are brought in the County Court, that Court has recently
issued a practice note for practitioners who seek leave to obtain such
medical evidence, as set out at [41]-[43] of Practice Note PNCDL 2-2018 78.
In particular, plaintiff lawyers are asked by the Court to ensure that the
matters proceed in the “PIS – Personal Injury-Sexual Assault” list when
issuing a proceeding.
Limitation Periods and Prejudice in Child Abuse Claims
Many readers will be familiar with significant changes to the Limitation of
Actions Act 1958 (Vic) for “child abuse” claims, effective from 1 July 2015.79
The changes are limited to claims brought by minors at the time who were
the subject of alleged physical or sexual abuse.
For such claims, there is no longer any specific limitation period.
Nevertheless, as was explored in Connellan v Murphy, 80 the Court retains
the power to grant a permanent stay of such a proceeding in some
circumstances.
In Connellan, the alleged sexual abuse occurred almost 50 years prior when
the plaintiff said she stayed at the defendant’s family’s residence for a little

75
See Woolworths Ltd v Svajcer [2013] VSCA 270 for the usual test.
76
Sexual Assault Manual of the Judicial College of Victoria at [11.2] citing PPC v
Williams [2013] NSWCCA 286 at [67] – [69].
77
[2018] VSCA 159.
78
Available at:
https://www.countycourt.vic.gov.au/sites/default/files/forms/PNCLD%202-
2018%20-%20Common%20Law%20Division.pdf.
79
Effected by the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic).
80
[2017] VSCA 116.

18
over a week. At the time, the defendant was aged about 13. There was no
interaction between plaintiff and defendant between the alleged events in
about 1967 or 1968 and 2015. One of the alleged incidents occurred in the
presence of the defendant’s brother. Both brothers denied the incidents
occurred and denied the plaintiff ever stayed with their family. Police
investigated the allegations in 2013 and 2014, but were unable to find
relevant witnesses, including the plaintiff’s mother, and defendant’s parents.
The Court of Appeal analysed whether it ought to grant a permanent stay on
the basis that the claim was an abuse of process, considering whether the
trial would be manifestly unfair or bring the administration of justice into
disrepute because of the delay.
Although the first instance judge placed significant weight on the defendant
and his brother being available, the Court of Appeal found that their
memories were likely to be significantly impaired, there were key witnesses
unavailable and other evidence was not available for a fair trial.
In the result, the proceeding was permanently stayed.
This decision can be compared to Judd Estate Proceedings,81 under
equivalent NSW provisions, where the deceased was alleged to have abused
three teenagers in the 1970s, 80s and 90s and claims were brought against
Judd’s estate. The Court would not grant a stay, in part based on the
deceased having previously provided statements about the alleged events.
Access to the decision is now restricted, so it appears the case is under
appeal.
Also of some relevance to the issue is Prince Alfred College Incorporated v
ADC,82 where the Court refused to extend time under the equivalent of the
old Victorian limitation provisions. The delay in bringing the claim was
described by the Court as “extraordinary”, the events occurring in 1962, and
the plaintiff having earlier made a deliberate choice not to bring the claim.
The defendant was allegedly vicariously liable for the headmaster’s sexual
abuse of the plaintiff, the headmaster having been found guilty of criminal
conduct in 2007 in respect of the abuse. To succeed, the Court said that
the plaintiff needed to establish whether the defendant placed the
housemaster in a position of “power and intimacy” over the plaintiff.
Because of the effluxion of time, the Court found that that question could
not be addressed adequately.
General limitation periods for intentional torts
In terms of limitation periods generally for intentional torts, at least as
regards ‘false imprisonment’, McDonald J in Waddington v State of Victoria
& Ors [2018] VSC 746 held that the Plaintiff was not making a claim for

81
[2018] NSWSC 462 per Garling J.
82
[2016] HCA 37 - better known for its importance in the area of vicarious liability.

19
‘personal injuries’, but for “deprivation of liberty and any loss of dignity or
harm to reputation”. Justice McDonald held that a six year limitation
applied, rather than three years, the latter applying to “personal injuries”
claims only.
Having said that, if the claim goes beyond mere “deprivation of liberty and
any loss of dignity or harm to reputation” and extends to effects to “a
person’s physical or mental condition”, it seems a three year limitation
period still applies.83
The Ellis Defence
The so-called Ellis defence has caused significant consternation in many
quarters. Its name is eponymous, after John Ellis, who brought a claim
against the Catholic Church and Cardinal Pell for alleged abuse at the
hands of a priest while Ellis was an altar boy. 84 Ellis sued the priest
himself, but he died while proceedings were on foot.
The Church85 and Cardinal defended the proceeding partly on the basis that
neither could be sued for the criminal conduct of the priest. 86 They
succeeded. Ellis could not identify anyone to sue, other than the estate of
the deceased priest, but presumably the priest had taken a vow of poverty
and Ellis would have received an empty judgment.
While to my knowledge, for several years such a defence has not been taken
in similar circumstances, statute now forbids it, under the Legal Identity of
Defendants (Organisational Child Abuse) Act 2018 (Vic).
That Act permits a claim in respect of child abuse 87 against an
unincorporated non-government organisation that controls one or more
trusts and that would otherwise not be suable. The Act applies
retrospectively.88
Part XIII of the Wrongs Act 1958 (Vic) has also modified the law regarding
vicarious liability of such organisations, and others, although the law is not
retrospective, applying to sexual abuse claims from 1 July 2017. 89

83
Angeleska (known as Slaveska) v Victoria [2015] VSCA 140; (2015) 49 VR 131, 151
[76] (Warren CJ, Tate JA and Ginnane AJA).
84
Trustees of The Roman Catholic Church v Ellis & Anor [2007] NSWCA 117.
85
Technically, the Trustees of the Roman Catholic Church for the Archdiocese of
Sydney.
86
The Church was an unincorporated association that was not suable. The Trustees
merely held property of the Church. Cardinal Pell could not be held liable as an
individual office holder of the Church as he could not be liable vicariously or in
contract for the acts of a priest, a connection between offence and the current office
holder being “too remote”.
87
Defined in section 3 as “an act or omission in relation to a person when the person
is a minor that is physical abuse or sexual abuse” and “psychological abuse (if any)
that arises out of that act or omission”.
88
See section 4(3) of the Act.
89
See section 93 of the Wrongs Act 1958 (Vic).

20
 P G HAMILTON
OWEN DIXON CHAMBERS WEST
October 2019

21