There are constant reports of violence inflicted on first responders, and elsewhere I have reported on limits of mandatory sentencing as an effective response, given a person’s mental illness may mean they are not guilty of any offence – see Mandatory prison sentences – offering paramedics a placebo rather than protection (August 3, 2018). Issues of responsibility and liability for assaults on first responders were highlighted in a recent civil case that came before the NSW Court of Appeal: Fede v Gray by his tutor New South Wales Trustee and Guardian  NSWCA 316 (14 December 2018) (hereafter “Fede v Gray”).
Some legal background
Before getting to the facts it is helpful to give some legal background. This was a civil action for damages. In a criminal case the case is brought by the Crown or the state. The Crown must prove the case ‘beyond reasonable doubt’. If successful the accused is convicted and the court hands down a sentence intended to punish the offender and bring home to him or her the wrongness of their action.
A civil action is brought by the injured person. The plaintiff must prove the case ‘on the balance of probabilities’. If successful the court orders compensation that, at least traditionally, was intended to put the injured person in the position that they would have been but for the wrong doing by the defendant. It is relatively easy to put a money value on some things. Expenses that the plaintiff has had to pay and income they have lost can be calculated. Future losses are harder to quantify but can still be given a money value. Then there are non-economic losses, that is losses that cannot be given a real money value but there should be some compensation to recognise their impact. Non-economic losses are things like loss of enjoyment of life, if because of your injury you can’t play your favourite sport or do things you used to do that is a real loss. Also pain and suffering, if you are going to be in pain for the rest of your life money cannot change that but may make it easier to find relief or something to take your mind off it.
In some rare cases there are exemplary damages. In Fede v Gray McColl JA said at -:
Exemplary damages are an exceptional remedy, and are awarded rarely. There must be something more than a mere finding of fault. Rather, exemplary damages are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.” They are awarded where a defendant engages in conduct “variously described as ‘wanton and malicious’, as ‘conscious wrongdoing in contumelious disregard of the plaintiff’s rights’, as ‘outrageous’, ‘atrocious’, ‘vindictive’, ‘arrogant’, ‘high handed’ or ‘insolent’.”
In considering whether to award exemplary damages “the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged”.
Exemplary damages are not compensation; they represent a type of windfall to the plaintiff.
In the late 1990s there was a ‘moral panic’ over the state of compensation law. To that end parliaments across Australia, led by NSW introduced legislation to limit who could claim compensation and the amount of compensation that could be awarded. The Civil Liability Act 2002 (NSW) restricted compensation in many ways. In particular it says that ‘No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case’ (s 16). This is a complex formula that I won’t attempt to explain but will be relevant later. Suffice to say the provision is designed to stop people getting compensation for what are described, often incorrectly, as ‘minor injuries’.
The Parliament however did say those restrictions don’t apply in all cases. The restrictions set out in the Act do not apply where the plaintiff is claiming damages for, amongst other things, ‘an intentional act that is done by the person with intent to cause injury or death’ (Civil Liability Act 2002 (NSW) s 3B(1)(a)). In that case the defendant is liable to pay all the damages assessed under common law (ie judge made law that has developed over time) and not on the more restricted basis that is used when the Act applies.
The final preliminary point to make is that this was an action in battery. Battery is any unlawful touching. In Collins v Wilcock  1 WLR 1172 at 1177, Goff LJ said:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
Battery is described as an ‘intentional tort’ but that does not mean that the person has to intend harm or even to intend to make physical contact. Their movement has to be intentional and if they intend to touch the other person or are negligent or reckless about coming into contact, then that is a battery. It is the action that must be voluntary or intentional, not the physical contact or the consequence (Fede v Gray -). At :
It follows that a person will not commit a battery if he or she makes contact with another person while sleepwalking or suffering convulsions in the course of an epileptic fit.
With that background in mind we can now turn to the facts of Fede v Gray.
Sergeant Fede was a police sergeant stationed at Gulargambone Police Station in western New South Wales. On the evening of 8 September 2014 and into the early morning on 9 September 2014, she and other officers detained Mr Gray pursuant to s 22 of the Mental Health Act 2007 (NSW). That section says:
A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:
(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and
(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.
Mr Gray was transported to Gilgandra hospital and assessed by doctors there and by specialists from Dubbo, via videolink. What happened is described in the judgement at -:
At about 2am, Mr Gray was observed to be muttering under his breath and his behaviour had deteriorated. He was assessed as being “violent and in need of immediate assessment”. It was at this stage that Mr Gray was informed by Dr Kearney that he was to be kept for further observations and asked to take some sedatives to relax.
Mr Gray then ran towards the closed smoke doors of the Accident and Emergency (A&E) department. Three police officers tackled him and a struggle ensued on the floor. Ms Fede sought to assist one of the officers handcuff him by holding Mr Gray down. She released him when she was told he had been “cuffed” at which stage he lunged forward and bit her on her right inner thigh.
The finer detail of the incident appeared in Ms Fede’s police statement which the primary judge reproduced as follows:
“The accused pushed past me and headed towards Senior Constable Hodges who again check drilled the accused. The accused yelled out ‘Hurry up you cunts. You can’t keep me here you white dog cunts. Hurry up’. The accused immediately calmed down after that.
At 2am Gilgandra Police arrived. I informed the doctor that back up had arrived and I returned to A&E.
Dr. Kearney attended A&E and approached the accused. He informed the accused that they would keep him there for further observations and asked the accused to take some sedatives to relax. The accused started yelling something similar to ‘You can’t keep me here. You’re all trying to kill me. I’m not taking nothing. You cunts are trying to kill me’.
The accused started to sun [sic, run] towards the closed smoke doors of A&E. As I was standing near the doors the accused ran towards me shoulder charged me into the wall. I was winded.
I turned and looked to the left in the main hallway of the hospital and I saw Sgt BRISBANE, Senior Constables BAILEY & HODGES tackle the accused and were struggling with the accused on the ground [sic, as in original]. The accused was face down on the ground. I pulled my handcuffs out of the pouch and I noticed that Senior Constable Hodges and Sergeant Brisbane were attempting to cuff the accused [sic] right wrist. The accused was attempting to break free of their hold. He was struggling with his whole body. Senior Constable Hodges was lying on the accused [sic] legs. Sgt Brisbane was at the accused [sic] waist/shoulder area, Senior Constable Bailey was on the left side of the accused trying to pull out his left arm. The accused was struggling trying to break free. He was thrashing his head and shoulders around. He was yelling out ‘They’re trying to kill me. The cunts are trying to kill me.’
I went to the upper body area of the accused. I noticed that Senior Console Bailey was trying to pull the accused [sic] arm back. I held the accused down just below the neck area with my right arm to assist in controlling the accused so that he could be cuffed.
I heard Sergeant Brisbane call out ‘He’s cuffed.’ I released my hold on the accused and knelt back. I saw the accused lunge forward toward my leg and I felt a sudden sharp pain on my right inner thigh. I elbowed the accused in the neck area and I held it there until I could move my leg. I heard material ripping as I freed my leg. I called out ‘He fucking bit me.’ I eased my hold on the accused when I heard Senior Constable Bailey call out ‘He’s biting me.’ I again elbowed the accused at the bottom of the neck and I held my elbow there until the doctor had given him the sedative. We held him there for a few moments until the accused stopped struggling. I got up and moved away from the accused when he started to struggle again and was attempting to kick out with his legs. The accused was screaming really loudly.”
Mr Gray’s legs were then handcuffed. Ms Fede noticed blood on her cargo pants where Mr Gray had bitten her. When she examined her leg in the bathroom, she was bleeding from the bite. On examination, it was apparent that Mr Gray had bitten a large piece of flesh from her thigh, leaving a wound approximately 1.5 centimetres in diameter.
As a result of his conduct, Mr Gray was charged with several offences ‘including assault and resist police officers in the execution of their duty, and was sentenced to three months’ imprisonment. He wrote a “letter of contrition” to the victims, including Ms Fede, admitting that he was on drugs at the time of his actions.’
Sergeant Fede then brought a civil action seeking compensation. She argued that Mr Gray’s conduct was ‘an intentional act … done … with intent to cause injury’ and so her damages should be assessed in accordance with the common law, not the Civil Liability Act 2002 (NSW). Further, she argued, at -:
… that the circumstances in which she was injured warranted a substantial award of exemplary damages as she was the subject of a serious assault and battery, which saw her shoulder-charged into a wall by a man weighing 125kg, whose mental state was the result of self-induced intoxication with illicit drugs. She also argues that having regard to the purpose of exemplary damages, principle called for their deployment in a case such as this, where a drug-affected person viciously assaulted frontline emergency services personnel in the course of discharging their duty. She contends there was evidence of a long history of serious aggression, including physical aggression, on Mr Gray’s part (including after the incident on 9 September 2014) such as called for punishment, as well as specific and general deterrence.
The trial in the District Court
The case was heard in the District Court of NSW before Acting District Court Judge Sorby (Sorby ADCJ). At  Basten JA said:
On 15 December 2017 the trial judge (Sorby ADCJ) dismissed the claim and gave judgment for the defendant. He concluded that, at the time of the injury, the defendant was in a delusional and paranoid state and unable to form the necessary intent to harm or injure Ms Fede. He concluded that Mr Gray was “not acting either intentionally or negligently”, because he was suffering from a mental illness at the time of the incident.
Even though the judge found in favour of the defendant, Gray, he went on to assess the damages that he would have awarded had he found in favour of the plaintiff. (This is not unusual, judges do that to give respect to the various submissions made and so, if there is an appeal on the question of who is liable, the value of the case has already been decided). Sorby DCJ would have found that s 3B of the Civil Liability Act 2002 (NSW) did apply so that the damages were to be awarded based on the common law, not the scheme under the Act. At  McColl JA said:
Had Ms Fede’s claim been successful, the primary judge would have awarded her for general damages, $20,000 for the bite wound and her concern about the possible transmission of hepatitis C; for economic loss, $10,000 as a general buffer for any time she may have be off work directly as a result of her bite injury and sequelae; and out-of-pocket expenses, $5000. His Honour would have rejected her claims for aggravated and exemplary damages.
Everyone appealed. Ms Fede appealed arguing that Sorby DCJ was wrong to find that Mr Gray’s mental illness meant that he did not act ‘intentionally’ as required by the law of battery and that he, the trial judge, was wrong not to order exemplary damages. Mr Gray appealed on the basis that if Ms Fede did win, the judge was wrong to find that damages were to be assessed based on the common law, not the Civil Liability Act 2002 (NSW) and further, that the award of ‘$10,000 as a general buffer’ was not supported by the evidence. On appeal everyone won – the court of Appeal (McColl JA and Basten JA with whom Meagher JA agreed) found that there should be a verdict for Ms Fede but that the Civil Liability Act 2002 (NSW) did apply to the assessment of those damages. The result was a verdict for Ms Fede for $5000 damages.
The court went back to 1616 for relevant legal authority. In Weaver v Ward (1616) Hob 134; 80 ER 284 (quoted at ) the court said:
… if a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass … except it may be judged utterly without his fault.
Mr Gray’s decision to bit Ms Fede was intentional. He may have been delusional (or at least misinformed) in his belief that the police were trying to kill him but his action was (at ) ‘… goal-directed behaviour prior to his containment at GHS and that him biting Ms Fede was intentional to him achieving the goal of not being detained.’
The trial judge’s view that Mr Gray ‘was not acting either intentionally or negligently’ was not supported by the expert evidence. The medical experts called by both sides agreed that Mr Gray was mentally ill but they also largely agreed that his action was voluntary ie he intended to bite her. At  McColl J said:
In my view, taken as a whole, Dr Larder’s evidence supported Dr Jungfer’s in the critical respect that Mr Gray’s conduct in biting Ms Fede was voluntary, that is to say, directed by his conscious mind. Once Mr Gray’s act was voluntary in that sense, and he “meant to … contact the plaintiff”, his conduct was relevantly intentional.
Because it was a voluntary action it was a battery and Ms Fede’s ‘cause of action’ was established. The question of damages then arose. Remember that the Civil Liability Act 2002 (NSW) s 3B(1)(a) says that the Act does not apply if the defendant’s act was ‘an intentional act that is done … with intent to cause injury or death’. The trial judge found that Mr Gray’s conduct fell within s 3B so Ms Fede was entitled to damages assessed according to the more generous common law. McColl JA (at ) agreed. She said:
I would also be satisfied that Mr Gray’s act was done “with intent to cause injury”. Such was, in my view, the inevitable consequence of his deliberate act in biting her, albeit through her trousers, but with such force as to tear her flesh.
McColl JA would also have found Mr Gray liable on the basis that his conduct was not ‘utterly without his fault’ because (at  ‘it was apparent that the psychotic state was drug induced’.
With respect to exemplary damages, McColl JA agreed that they were not appropriate in this case. She set out the purpose of exemplary damages at - and these have been quoted in the ‘legal background’ section above. She went on to say:
Exemplary damages may not be awarded where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted. A term of imprisonment would seem always to be regarded as “substantial” for these purposes. She said -:
In my view Mr Gray’s conduct, while clearly very distressing for Ms Fede, cannot be described as being within the categories to which I have referred which would warrant an award of exemplary damages. When one focuses on Mr Gray, the consensus is that his behaviour was part of a flight response to the advice that he was to be detained against his will and injected with medication. As Dr Jungfer put it, it was a response to him realising he was being deprived of his civil liberties. Extreme, and conscious, as his behaviour was in biting Ms Fede’s leg, it was part of his spontaneous reaction of trying to escape that situation. While it was conduct of which one could not approve, I would not characterise it as “conscious wrongdoing in contumelious disregard of [Ms Fede’s] rights”. On that basis, I would not be of the view that this should be one of the rare cases in which exemplary damages should be awarded.
I am also of the view that the court “may not” award exemplary damages because the criminal law has been brought to bear upon Mr Gray and substantial punishment inflicted.
With respect to Mr Grey’s appeal against the award of a $10 000 buffer, McColl JA said (at ) ‘A “buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.’ Even so there has to be some evidence to support the claim and there was none. Accordingly, Her Honour would have upheld the cross appeal.
In McColl JA’s opinion the correct result would have been to find that Mr Gray was liable for battery and award damages of $25,000 being general damages for non-economic losses of $20 000 and $5000 for out of pocket expenses.
Basten JA (with whom Meagher JA agreed)
Basten JA said (at ) that the essential elements of battery”
… included the following: (i) the act of the defendant must involve physical contact with the plaintiff; (ii) the act must be voluntary, that is, directed by the defendant’s conscious mind; (iii) the defendant need not intend the plaintiff any harm; (iv) if the act is voluntary, and the defendant “meant to do it” in the sense of meaning to contact the plaintiff, it will be relevantly intentional; (v) “it may be” that an act should also be considered intentional if it is “substantially certain that the act will result in contact with the plaintiff”; and perhaps also if the act is “reckless with respect to contact with the plaintiff”.
With respect to Mr Gray’s decision to bite Ms Fede he said (at ):
In the context of the present case, the language of intention is satisfied by a conclusion that the general intention to bite was not involuntary. It may have been motivated by the delusion that Mr Gray thought himself in physical danger if he remained in the hospital, and was seeking to escape. That delusion did not, however, render his biting either involuntary or in the nature of an inevitable accident.
Accordingly, the trial judge was wrong to find that Mr Gray’s mental illness meant he did not have the necessary intent or capacity to act voluntarily. He upheld Ms Fede’s appeal such that Mr Gray was liable for battery.
With respect to the Civil Liability Act, ‘the [trial] judge found that the defendant did not understand the nature or quality of his act, he concluded that the defendant did not “intentionally cause injury to the plaintiff.” There being no basis to reject that finding, the second limb of s 3B(1)(a) was not satisfied and the assessment of damages should therefore have been governed by Pt 2 of the Civil Liability Act’ ().
Where the Civil Liability Act applies damages for non-economic losses can only be awarded where the plaintiff’s losses were (at ):
…at least 15% of a most extreme case. There was no finding to that effect, nor was the basis for such a finding apparent in the circumstances revealed by the plaintiff’s evidence or her medical evidence. Accordingly, pursuant to s 16 of the Civil Liability Act, no amount should have been allowed for non-economic loss.
Basten JA agreed with McColl JA in finding that the claim for a $10 000 buffer had not been established by evidence and further, that this was not a suitable case for exemplary damages.
The result was a verdict for Ms Fede with an award of only $5000 damages. The claims for non-economic losses, a buffer for future economic losses and exemplary damages were all rejected.
This case may bring some comfort for first responders. Mr Gray’s mental state was not a defence to an action in battery. He decided to bit Sergeant Fede. Why he did that was not relevant to the question of intention. It was a deliberate use of force and that is a battery.
(It should be noted, but it did not arise in this case, that an offender’s mental state may be relevant if they want to argue self-defence, that is that they ‘believed upon reasonable grounds that it was necessary in self-defence to do what he did’ (Zecevic v DPP  HCA 26). That is a subjective test so is their belief, even if delusional, that will be relevant. Self-defence could not arise in this case as Mr Gray had entered a plea of guilty to the various criminal charges so by that plea had admitted it was not self-defence.)
It may mean that first responders subject to an assault may have the option to bring a civil claim, but one does have to wonder if it is worth it. If the person has received workers compensation, they would have to repay amounts claimed under that scheme so the money paid may end up going to an insurer, not the injured person. Second it is only worth suing someone who has the assets to pay. We don’t know Mr Gray’s circumstances, but we do know that he was represented by his guardian the New South Wales Trustee and Guardian which means he is not able to manage his affairs. Being mentally ill does not mean being impoverished so it may be that he had assets that could be used to pay the damages bill, but often that will not be the case.
The case also demonstrates the principles of the rule of and the image of justice as blind and holding the scales. The conduct of Mr Gray ‘was conduct of which one could not approve’ () but that does not make him an ‘outlaw’. Sergeant Fede had to prove her claims on evidence so the claim for a $10 000 buffer was not made out. The Civil Liability Act 2002 is intended to reduce the value of civil claims and to limit damages not just to cases that are considered undeserving in the court of public opinion. The application of s 3B was arguable here but by a 2:1 majority the Court of Appeal held that it did not apply so damages were limited as required by the Parliament.
Bringing a civil claim for battery may be an option for first responders subject to occupational violence but it is not necessarily an easy or worthwhile process.