State of New South Wales v Madden [2024] NSWCA 40 (link to JADE).
In December 2022, the primary judge found the State of New South Wales vicariously liable in tort for the conduct of certain police officers amounting to battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647. The damages award encompassed both general and aggravated and exemplary damages.
The appeal (which was dismissed) covered a number of issues, however this note focuses only on the question of whether there was an intentional act done with intent to cause injury or death and in particular whether deprivation of liberty falls within the definition of “injury” (section 3B(1)(a), Civil Liability Act 2002 (NSW)). The State accepted that if the Court found that s 3B(1)(a) was engaged, then its arguments in respect of the application of s 43A of the Civil Liability Act must fail.
The Court (Bell CJ, Stern JA and Leeming JA relevantly agreeing) held that the deprivation of a person’s liberty effects an injury on the person within the scope of s 3B(1)(a): Bell CJ at [146] said:
Once it is accepted, as Ibbett did, that “injury” in the context of s 3B(1)(a) need not be a personal injury, then deprivation of liberty may readily be conceived of as involving injury. Such deprivation infringes a person’s common law right to enjoy freedom of movement in his or her community.
[BillMaddensWordpress #2229]