Full Court confirms intent to injure can be formed instantaneously

Mr Leonard was seriously injured in an altercation with a security guard, outside Syrup Nightclub in Salamanca, Tasmania, in 2014. Mr Atileo was employed as a security guard and crowd controller by SL Security Pty Ltd. 

Mr Leonard was heavily intoxicated at the time of the incident and had been escorted from the nightclub for ‘harassing and grabbing females’.

After being removed from the club, Mr Leonard punched Mr Atileo. Mr Atileo responded with a retaliatory punch, causing Mr Leonard to fall backwards onto a roadway, suffering a significant head injury.

Mr Leonard brought an action against Mr Atileo and his employer in the Supreme Court of Tasmania for battery. He was successful at first instance and awarded damages in excess of $12.4 million. 

The court found that the Civil Liability Act 2002 (Tas) (CLA) did not apply to the claim. The finding had a significant impact on the assessment of damages. Mr Atileo and his employer appealed the decision, submitting that the CLA did apply, because while Mr Atileo’s punch was an intentional act, it was not done with intent to cause injury.  

The appeal was dismissed. 

At first instance, the court held the following:

• Mr Atileo punched Mr Leonard and was not acting in self-defence;
• Mr Atileo’s conduct constituted an intention to injure Mr Leonard, such that section 3B(1)(a) of the CLA applied to exclude the operation of the Act;
• if incorrect, and the CLA did apply, section 6 (which precludes no damages to be awarded to a plaintiff engaged in conduct constituting a serious offence) did not apply as Mr Leonard’s conduct was separate to the actions of Mr Atileo. 

Section 3B(1)(a) of the CLA states:

1. This act does not apply to or in respect of civil liability
   1. In respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct.

The court noted that it was not disputed by the parties that the intentional act was the punch thrown by Mr Atileo. The central issue was whether Mr Atileo had intended to injure Mr Leonard. 

In addressing intent, the court followed the NSW Court of Appeal decision in Dickson v Northern Lakes Rugby League Sport & Recreation Inc to affirm that ‘actual subjective intention’ is required, rather than recklessness or foresight of inevitable consequences.  

Mr Atileo and SL Security submitted that Mr Atileo was reckless but did not intend to injure Mr Leonard and that the punch was delivered in the spur of the moment. They further submitted that the court was mistaken to conclude that section 3B(1)(a) requires only an intent to inflict ‘something more than trivial hurt or harm’. This argument was rejected.

The court found that intent can be formed instantaneously. Having reviewed the CCTV footage, the court concluded that the forceful nature of the punch and the absence of self-defence established a subjective intent to harm or injure Mr Leonard to more than a negligible extent. As a result, section 3B(1)(a) operated to exclude the CLA.    

Section 3B(1)(a) of the CLA

On appeal, Mr Atielo and SL Security argued that the court was in error in concluding that Mr Atileo formed an actual subjective intention to injure Mr Leonard. 

They submitted that Mr Atileo’s act amounted to ‘mere recklessness’, was ‘instantaneous’ and not premeditated, and therefore could not establish intent to injure. They also submitted that the court was in error in finding that section 3B(1)(a) requires only an intent to inflict ‘something more than trivial hurt or harm’.

The Full Court rejected these submissions. It held that the trial judge had sufficient regard to the distinction between intention and recklessness and that the submissions by Mr Atileo and SL Security were not issues of law. The Full Court noted the trial judge conducted a meticulous review of all the evidence and that there was no challenge to the findings of fact. 

The Full Court held that the trial judge’s findings were not glaringly improbable or contrary to compelling inferences, and that it was sufficient for intent to be established on the balance of probabilities. The Full Court also accepted that actual intention can be formed instantaneously.

The Full Court reaffirmed that, for the purposes of section 3B(1)(a), intent to injure requires: 

• an intention to inflict something more than trivial hurt or harm;
• a proper use of the word ‘injury’;
• intention to harm or hurt must be to a negligible extent; and
• intention must not be a mere intent to shock or startle. 

Section 6 of the CLA

Mr Atileo and SL Security also argued that the trial judge wrongfully applied a strict construction of the temporal requirement in section 6 of the CLA in deciding against precluding damages for criminal conduct. The ground of appeal operated on the basis that Mr Leonard’s punch to Mr Atileo occurred at the time of the incident that caused injury and constituted unlawful conduct. 

The Full Court rejected this argument. It agreed that the requirement for the injured person to be engaged in conduct ‘at the time of the incident’ should be given its ordinary meaning. 

The Full Court held that the conduct that resulted in injury to Mr Leonard was Mr Atileo's punch. At that point, Mr Leonard was no longer engaged in any conduct that could constitute a serious offence and section 6 did not apply.

This decision does not affect equivalent provisions in other jurisdictions. For example, the temporal requirement under section 54(1) of the CLA (NSW) requires the injury to occur at the time or following the conduct that constituted the serious offence, requiring a wider construction.