I have previously reported on the case of Ms Music – see NSW liable for excessive use of force by police acting under the Mental Health Act (November 27, 2025). There were appeals in this case by both Ms Music and the State of New South Wales – see Music v State of New South Wales; State of New South Wales v Music [2026] NSWCA 206. The appeals turned on the interpretation of the Civil Liability Act 2002 (NSW) rather than the Mental Health Act 2007 (NSW) s 22 so the outcome will not have direct application to the work of responders reading this blog, but I report on it simply to finalise the story.
In the case at first instance, the trial judge found that Leading Senior Constable (“LSC”) Cashmere assaulted Ms Music when he sprayed her with capsicum spray. The Court of Appeal summarised the position at [88]-[89]:
When she [Ms Music] came out of the shed into the backyard, she held her hands out in a neutral stance. She neither approached, spat on, punched, nor verbally threatened any officer. The appellant’s conduct throughout was consistent with someone who was fearful and not threatening.
Within about three seconds of LSC Cashmere coming into the backyard and before he had interacted with the appellant, he sprayed her face twice with oleoresin capsicum spray (also referred to as OC spray). The primary judge found that, in doing so, LSC Cashmere resorted to force prematurely and adopted a confrontational approach.
It was held, and not challenged on appeal, that LSC Cashmere intended to cause some harm to Ms Music in the form of the pain and discomfort that would be the intended consequence of the use of capsicum spray. The evidence was that the damage caused was more significant as this interaction with police aggravated Ms Music’s pre-existing PTSD. LSC Cashmere intended the physical consequences of the capsicum spray, he did not intend to mental health consequences.
The ‘express purpose’ of the Civil Liability Act 2002 (NSW) is to ‘to modify or reduce, to a significant extent, the availability of damages for negligently inflicted personal injury’ ([13]). The limitation on damages does not, however, apply to injuries that are caused by ‘an intentional act that is done by the person with intent to cause injury or death’ (s 3B(1)(a)). LSC Cashmere’s action in spraying Ms Music was an intentional act and it was done with the intent of causing her an injury or harm, that is the pain that capsicum spray is intended to cause. He did not intend to cause an aggravation of her pre-existing PTSD. The question then was whether s 3B only applied to the intended injury or whether it applied to any injury.
The Court held that the section ‘requires the tortfeasor to have an “intent to cause injury” but does not, in terms, require that the actor intend to cause a specific injury or the actual injury for which a plaintiff claims damages’ (Headnote, [1]). The headnote (a summary of the case written by the court but not part of the judgement) says:
It was common ground that LSC Cashmere’s actual and subjective intention was to cause physical harm to the appellant when he sprayed her with capsicum spray. The law of damages would become unwieldy if not unworkable, if the injuries which were sustained by a plaintiff as the result of an intentional act done with an intention to cause the injury sustained were required to be dealt with differently from those which resulted from the same intentional act but which were not intended. Having regard to the statutory text and context as well as the adverse consequences for the assessment of damages of a different construction, the exemption in s 3B(1)(a) applies if the claimant proves that the tortfeasor intended to cause injury
The trial judge had found that the limitations imposed by the Civil Liability Act did apply and that limited Ms Music’s damages to $24,000. The Court of Appeal held that this was an error and having found that Ms Music’s harm was caused by an intentional act intended to cause harm, then the limitations did not apply. Ms Music’s damages were increased to $27,000.
It should be noted that this case did not decide that any use of force under s 22 would lead to damages. LSC Cashmere’s conduct was, in the circumstances, not a reasonable use of force and was not authorised by the Mental Health Act nor the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Had it been a lawful use of force, the issue of damages would not arise.
There were other issues in the appeal relating to proof of causation and the award of exemplary damages, but I will not report them here. For those lawyers reading this post who want analysis of all the legal issues see the headnote at the start of the case or this report by lawyer Bill Madden Civil liability: Intent to cause injury does not require specific injury (NSW) (October 7, 2026).
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
