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The following are a few general tips on what an intentional tort is and how it may apply to you in a personal injury claim.

What is an Intentional Tort?

An intentional tort arises when someone tries to injure a person or acts with substantial certainty that his actions would injure a person. The most common intentional torts include:

  • Assault (causing a reasonable apprehension of imminent harm or offensive contact);
  • Battery (intentionally, negligently or voluntarily causing non-consensual physical harm or offensive conduct on a person or something closely associated with them (e.g. trying to snatch their purse.); or
  • False Imprisonment (Restraint of a person in a bounded area without legal justification or consent).

A’New’ Emerging Intentional Tort 

In Australia, there is also the emergence of the potential tort of invasion of privacy. Traditionally, Australia did not have a general right to privacy since Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

However, with the more recent case in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 19, the High Court has considered and left open the possibility of an invasion of privacy tort in Australian common law. However, the majority also held that if a tort for invasion of privacy were to be developed in Australian law, it should be limited to the protection of a natural person’s privacy (as opposed to a company or similar entity).

Defences to an Intentional Tort

Mistake

A mistake is rarely a defence to an intentional tort because of the requirement for the tort to be caused recklessly or intentionally. However, mistake based upon a “reasonable suspicion” or belief may be appropriate as a defence in limited circumstances such as a police officer seizes goods that are reasonably thought to be stolen, but end up being a mistake of fact.

Inevitable Accident

An inevitable accident defence arises when the defendant establishes that the consequences of the action were not intended and could not have been avoided by taking reasonable care in the circumstances. An example of this would be in a motor vehicle accident caused by a defendant who loses control of their vehicle because they suffer a heart attack with no previous history of heart conditions.

Consent

Consent to an action may be a valid defence and the consent is required to be given to the action complained of (e.g. consent to sex, consent to engage in a sport with physical risk of injury, etc.). Consent however, may be withdrawn at any time and the defence cannot be engaged if the consent was withdrawn at the time of the alleged tort.

Consent may be expressed or implied and even silence may be interpreted as consent in certain circumstances. However, consent is not established where it is a product of:

  • Fraud extending to the act itself (e.g. a case where a woman consented to sex in the belief that she was married to the man, which ended up being fraudulently induced by the man. He was not found guilty of rape.
  • Duress (being threatened). This is especially relevant in cases where there is a clear position of authority imbalance such as a police officer who uses their authority to induce a person to attend a police station even though they are not under arrest.

The key to consent as a defence is that the action complained of remains within the consent given. For example, an athlete may consent to playing in a sport that may involve tackling, but the consent does not extend to physical contact that are outside the rules of the game such as punching or tackling outside the boundary of the rules.

Consent – Medical Treatment

There are also consent issues that arise with respect to the doctor-patient relationship and consent given for medical procedures. A lot of people are unaware that a consent waiver alone is insufficient to engage the defence of consent. A medical professional must explain the medical procedure and its risks along with the signing of the waiver in order for the defence of consent to be engaged.

If the patient is a minor, the evidence must show that the minor has intellectual and emotional capacity, sufficient intelligence and and an understanding to comprehend the implications and nature of the medical treatment.

Parental consent is not sufficient to authorize treatment that is clearly non-beneficial (e.g. the treatment needs to be in the consequence of an immediate physical problem that warrants the procedure). The court should be sought for authorization before undertaking treatment that is serious and irreversible.

Unlike parental consent however, a minor does not have an overriding veto over a court making a determination in the best interests of the child.

If the patient is unable to consent because they are mentally ill or incompetent, then a medical practitioner is not guilty of battery if they treat the patient with accordance with the medical practitioner’s clinical judgment and in the patient’s best interests. The patient’s next of kin has no legal right of veto or authority to refuse treatment on the patient’s behalf.

Self-Defence (Defending Oneself or Others)

In order to rely on self-defence, the force must be reasonably necessary and must not be excessive in the circumstances to defend oneself.

What constitutes reasonable force is a question of fact depending on the circumstances.

Even if a defendant is liable for excessive force, they may still have a counterclaim against the plaintiff for the initial attack.

Defending Property

This defence is only available if the defendant has a title or licence to the property. Reasonable counter-force must be applied to expel a forceful trespass.

In Hackshaw v Shaw (1984) 155 CLR 614 at 640, the High Court noted the danger of excessive force to protect property in this case where a farmer armed with guns lay waiting for petrol thieves in his farm and fired at the alleged vehicle that led to a hidden woman passenger in the car being shot. The farmer was liable for the losses.

Necessity

A defence may be made to justify to infringe on someone’s rights and interests for the purpose of preventing harm to that person’s interests or the interests of others. Two criteria must be satisfied:

  • Imminent danger, or at least the appearance of imminent danger to a reasonable person; and
  • The steps must be reasonably necessary in the circumstances.

To determine if the defence is available, one most consider if the actions where necessary to protect a person or property even though an innocent may suffer a loss. An example is a circumstance where a defendant tries to prevent flooding to their own property and in doing so, caused the flooding of a neighbor’s property.

Can the Defendant Pay? 

The practicality of commencing an intentional tort will often depend on whether or not a defendant has the financial capacity to pay a judgment. Thus, it is important to speak with a personal injury lawyer about pursuing this course of action because the harsh reality is that if the defendant has no personal insurance or other assets to pay a judgment, then pursuing the litigation route may end up being just a costly waste of time.

Be sure to instruct your solicitor on any information that they can use to determine whether or not it is feasible to pursue an intentional tort claim:

  • Any property that is known to be in the defendant’s name;
  • Any property that may be passed as an inheritance in a will;
  • Assets that are held in joint names;
  • Information regarding the defendant’s past income and current employment;
  • Instruction on whether or not the defendant is aware of potential litigation and if he/she may potentially be taking steps to liquidate or move their assets;
  • The value of the defendant’s car, boat and other assets other than property; and/or
  • Whether or not the conduct of the defendant occurred while he/she was working under the scope of their employment.