Music v State of New South Wales; State of New South Wales v Music [2026] NSWCA 206 (Link to JADE).
This note is drawn from the rather long case headnote., with the early part of the headnote focusing on section 3B.
Facts and Issues
The appellant, Linda Music, was awarded damages for her claim in the District Court against the State of New South Wales which was vicariously liable for the tort of battery committed by Leading Senior Constable (LSC) Cashmere who twice sprayed the appellant with capsicum spray during a welfare check on her. The primary judge found that the battery exacerbated the appellant’s pre-existing post-traumatic stress disorder (PTSD). His Honour assessed damages on the basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (the Act) did not apply (with the result that damages were assessed pursuant to Part 2 of the Act rather than under the common law). The primary judge awarded damages of $24,000 (comprising non-economic loss of $12,000; economic loss of $10,000; and medical expenses of $2,000). On a contingent basis, the primary judge assessed common law general damages in the sum of $15,000.
On appeal, the appellant challenged the primary judge’s finding that s 3B(1)(a) of the Act did not apply (ground 1). The appellant alleged that the primary judge erred in: his assessment of damages by failing to address the need for consistency between common law general damages and non-economic loss under the Act (ground 2); awarding general damages which were manifestly inadequate (ground 4); declining to award exemplary damages (ground 5); and awarding manifestly inadequate damages for economic loss (ground 6).
Ground 1 turns on the construction of s 3B(1)(a) of the Act. The principal question raised was whether, where a tortfeasor intends to cause an injury (in this case, pain inflicted by the use of capsicum spray) by doing an act, the exemption in s 3B(1)(a) extends to the defendant’s liability for all injuries, including those which were not specifically intended (such as aggravation of pre-existing PTSD) caused by the doing of the act. It was common ground that, subject to the cross-appeal, if ground 1 was made out the appellant’s damages ought be assessed under the common law.
The State filed a cross-appeal alleging that the primary judge erred in finding causation in circumstances where LSC Cashmere did not intend the harm to the appellant and the primary judge had not found that the harm was the natural and probable consequence of the tortious conduct. The appellant relied on a notice of contention in response to the cross-appeal.
The Court (Adamson JA, Mitchelmore and McHugh JJA) held allowing the appeal in part and dismissing the cross-appeal:
The appeal
Ground 1: alleged error in construction of the exemption in s 3B(1)(a) of the Act
Per Adamson JA, Mitchelmore and McHugh JJA agreeing with separate reasons
1 The evident purpose of s 3B(1)(a) is to exempt tortious conduct which is intentional or deliberate from the limitations on damages in the Act. Section 3B(1)(a) 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: [49]-[50] (Mitchelmore JA); [108]-[113] (Adamson JA); [268] (McHugh JA).
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 applied.
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362; Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132; Dean v Phung [2012] NSWCA 223 cited.
2 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: [51] (Mitchelmore JA); [129]-[133] (Adamson JA); [268] (McHugh JA).
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445; Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658; [2020] NSWCA 294; Hannam v State of New South Wales (No 9) [2022] NSWSC 648 considered.
Grounds 2 and 4: alleged error in assessing general damages
Per Adamson JA, Mitchelmore and McHugh JJA agreeing
3 The propositions put in this Court were at odds with the submissions put to the primary judge. Accordingly, Ground 2 ought not be entertained: [237]-[242] (Adamson JA); [267] (McHugh JA).
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62; Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; Warrane – Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223; Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, applied in El Assaad v AI Haje [2024] NSWCA 306 cited.
4 The primary judge was in the pre-eminent position to assess general damages based on his Honour’s assessment of the appellant. The primary judge’s contingent award of damages at common law was not manifestly inadequate: [243]-[245] (Adamson JA)
Ground 5: alleged error in failing to find exemplary damages on a contingent basis
Per Mitchelmore JA
5 The appeal from the primary judge’s declining to award exemplary damages did not challenge the primary judge’s findings on the issue, but submitted that his Honour did not bring to account earlier findings about the circumstances in which LSC Cashmere used the capsicum spray that were relevant to how his conduct should be characterised: [81].
6 The appellant’s claim for exemplary damages was directed at the conduct of the police officer for which the State was vicariously liable, and was put on the basis that his conduct, in an admittedly difficult situation, was at its core motivated by expediency and convenience and without seriously entertaining other options: [77]–[79].
7 In the context of exemplary damages, heavy-handed, over-reaching conduct can be relevantly contumelious even when there is no subjective advertence to wrongdoing, and even when the disregard of the plaintiff’s rights is unintentional or occurs by conduct believed to be lawful: [76], [82].
Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, considered.
8 The primary judge found there was a paucity of other options, none of which were compelling given the separate risks that they entailed; and in taking the steps he did, LSC Cashmere did not act expediently. Accepting that he made an error about the force he was permitted to exercise, his Honour made no finding that the steps that he took involved a failure on LSC Cashmere’s part to comply with applicable guidelines, noting that their application was highly contentious. In light of those findings, which were not challenged, the decision not to award exemplary damages was correct: [82].
Per McHugh JA agreeing
9 Depending on the case that a plaintiff advances, when applying the principles governing the award of exemplary damages to police tort claims, it may be proper to take into account not only the conduct of the particular officer which founds the claim, but also any relevant conduct or omission of the State. Similarly, an award may be for any recognised purpose of exemplary damages (such as denunciation) applicable to the State, again depending on the case advanced: [270]–[278].
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 5; Austral v Northern Territory [2026] HCA 20; (2026) 100 ALJR 912; Bird v DP (2024) 283 CLR 45; [2024] HCA 41; Cullen v New South Wales [2026] HCA 19; (2026) 100 ALJR 886, considered.
10 In principle, a claim for exemplary damages could have been advanced against the State which included an allegation that, for example, it had failed properly to train LSC Cashmere in the appropriate use of capsicum spray. However, the claim for exemplary damages was advanced on the basis that LSC Cashmere had failed to follow proper procedure, in which circumstances his conduct and state of mind when exercising or purporting to exercise state power as a police officer must be central to the question whether an award of exemplary damages was warranted: [279]–[280].
11 Having regard to the purpose for which exemplary damages are awarded, it is necessary to form an evaluative judgment as to whether LSC Cashmere’s conduct as a police officer warranted punishment by an award of exemplary damages, notwithstanding the absence of any finding of conscious wrongdoing. Although there were considerations tending in favour of an award of exemplary damages, and LSC Cashmere’s conduct fell short of the standards to be expected of a police officer, on the primary judge’s findings as to why LSC Cashmere used the capsicum spray the conduct did not fall so far short as to warrant punishment by an award of exemplary damages: [281]–[288].
Per Adamson JA contra
12 The primary judge was in error in regarding LSC Cashmere’s subjective intention as, if not the sole, then a significant, factor in determining whether exemplary damages ought be awarded. LSC Cashmere’s conduct (in twice spraying capsicum spray on an older woman who posed no threat and was suffering from mental illness) was precipitate, high-handed, in disregard of police protocols and at the expense of the appellant’s mental state. Exemplary damages ought be awarded to emphasise to police officers and the public generally the importance of compliance with police protocols which are designed to minimise the use of force: [247]-[260] (Adamson JA).
State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 applied.
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 cited.
Ground 6: alleged manifest inadequacy in the award of damages for economic loss
Per Adamson JA, Mitchelmore and McHugh JJA agreeing
13 It was common ground in the Court below that a buffer in the award of damages and a discount to reflect suffering from “non-tortious” events not subject to the appellant’s claim, were appropriate. No error was shown in the primary judge’s award of a buffer in the sum of $10,000: [261]-[263] (Adamson JA).
DC v State of New South Wales [2016] NSWCA 198 applied.
The cross-appeal and the notice of contention on the cross-appeal
Per Adamson JA
14 The primary judge’s ultimate determination of the question of causation for the intentional tort of battery was that the psychiatric injury was the natural and probable consequence of the use of capsicum spray. Further, the finding in [434] complies with the applicable legal principles of causation for intentional torts. The notice of contention ought be upheld and the cross-appeal dismissed: [223]–[235].
State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519; Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.
Per Mitchelmore JA (McHugh JA agreeing)
15 In the court below, in relation to causation, neither party raised as an issue whether LSC Cashmere had an actual or presumed intention to aggravate the appellant’s pre-existing mental disorder. The appellant did not ultimately seek to rely on [434] of the judgment as dealing squarely with that issue, and it fell short of such a finding: [56]-[62] (Mitchelmore JA); [267] (McHugh JA).
State of New South Wales v Spedding [2023] NSWCA 180; (2023) 309 A Crim R 519 considered.
16 In so far as the State sought to rely on an earlier passage in the judgment, at [343], as constituting a finding that was responsive to the question of presumed intention, it was not properly so characterised, having regard to the context in which the issue of natural and probable consequence was raised in passing in the context of s 3B of the Civil Liability Act and was not otherwise the subject of argument. Ground 1 of the appellant’s notice of contention should be upheld: [63]-[69] (Mitchelmore JA); [267] (McHugh JA).
17 In circumstances where prior to deploying capsicum spray, LSC Cashmere was aware of the appellant’s history of suicidal ideation, prior interactions with police for reasons of mental health, and her interactions with other police officers on the day in question, the aggravation of the appellant’s mental disorder was the natural and probable consequence of the use of capsicum spray upon her. Ground 3 of the notice of contention should be upheld: [72], [74]-[75] (Mitchelmore JA); [267] (McHugh JA).
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