From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday
17 June 2026 06:18
To: obligations@uwo.ca
Subject: ODG: HCA
on exemplary damages for battery, Austral
Dear Colleagues;
The
second tort decision from the High Court of Australia today was Austral v Northern Territory, Binsaris v Northern
Territory, O'Shea v Northern Territory, Webster v Northern Territory [2026]
HCA 20 (17 June 2026). https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2026/20.html The
facts also involved injury to 'bystanders' (as the Cullen case did)
but in a different way.
Here
some tear gas had been used to control a violent juvenile prisoner at a youth
detention centre, but in doing so four other detainees who were in their cells
and not contributing to the violence were also hit with the gas. The earlier
decision of the High Court in Binsaris v Northern
Territory (2020) 270 CLR 549 had
held that this amounted to battery of the other prisoners (though for two
different reasons- the majority because the use of the gas in the circumstances
was unlawful, Gageler J because while the gas was lawful against the violent
prisoner, this did not excuse its application to the bystanders.)
After referral back to lower courts for determination of damages,
a (second) trial judge had awarded each bystander (as well as undisputed
compensatory and aggravated damages) exemplary damages of $200,000 each. The NT
Court of Appeal overturned this award, in part because they held that exemplary
damages could not be awarded against the government where no government
official was aware that their actions were unlawful.
The High Court here by majority overturns this decision, and holds
that exemplary damages were appropriate, but reduces the amount to $50,000
each. Gageler CJ and Steward J dissent.
The majority (Gordon, Edelman, Gleeson, Jagot & Beech-Jones
JJ) hold that:
- The NT Court of Appeal
erred because their ruling on exemplary damages was not consistent with
the High Court's previous decision in Binsaris (2020) or with
the unchallenged findings of the first trial judge which had not been the
subject of the appeal; in doing this it was necessary to 'untangle' the
fact findings of the first trial judge from her ruling on the legality of
the use of the gas which the High Court had said was unlawful. The
majority concluded at [106] that the Court of Appeal had not properly
disentangled the issues and should not have overturned the finding of
exemplary damages by the second trial judge.
- There is then a
discussion of the basis of exemplary damages, and the majority note as
follows (text of footnotes not included):
[111] The kinds of case in which exemplary damages might be
awarded are so varied that it has been doubted whether a single formula
adequately describes the boundaries of the field in which they may properly be
awarded.144 The phrase adopted to describe "at least the greater
part of the relevant field" is "conscious wrongdoing in contumelious
disregard of another's rights".145 The necessary conduct has been
described as disclosing "fraud, malice, violence, cruelty, insolence or
the like".146 In the context of an award of exemplary damages, the
concept of "malice" may mean no more than proof of a state of mind
involving some personal animus against the plaintiff.147 A
"contumelious disregard" of a plaintiff's rights may arise even if
the disregard of the plaintiff's rights is unintentional or occurs by conduct
believed to be lawful, the meaning of contumelious conduct being conduct
that is apt to humiliate and insult the plaintiff.148 While a finding of
"conscious wrongdoing in contumelious disregard of another's rights"
may be sufficient it is not necessary for an award of exemplary damages.149
(emphasis added)
Leaving aside the 'state of mind' of the officers (who seem to
have assumed that the use of the gas was lawful, rather than positively
believing it to be so- see [115]), the majority conclude that an award of
exemplary damages was warranted for a number of reasons:
[117] .. it is apparent that the Court of Appeal did not consider,
or sufficiently consider, other factors, including: (a) that the appellants
were minors detained in a youth detention centre; (b) that the appellants were
bystanders, who were effectively treated as collateral damage in the officers'
efforts to subdue Jake Roper; (c) the failure to check the appellants' medical
records before spraying the CS gas into the confined space of the BMU; (d) that
the CS gas was sprayed into a confined space from which the appellants could
not escape; (e) the comments by the officers exposing their callous attitude to
the detainees; (f) the humiliating and rough treatment of the appellants after
the spraying of the CS gas; and (g) the delayed and inadequate medical care
given to the appellants after their exposure to CS gas. Finally, and
particularly pertinent, is the Northern Territory's failure to train its
officers adequately to ensure that this type of conduct would not occur.
Finally, the majority address the basis on which the NT can be
held liable here, in relation to the actions of the officers on the spot. The
ground of appeal here was that the second trial judge had found the government
liable on the basis of 'vicarious liability', when in fact the arguments made
were best seen as assertions of 'direct' liability, the actions of the officers
being directly attributed to the government (presumably as 'agents' of the
government). This was said to justify overturning the decision.
I found the discussion of this issue confusing. The point is made
that (presumably since the second trial) the High Court in Bird has
accepted that 'true' vicarious liability (deemed liability) is different to
'agency' liability (deemed conduct)- see [131]. But the court does not want to
penalise a party for using the wrong terminology. It seems the point of this
ground of appeal was to argue that, in determining exemplary damages, the
behaviour of the officers could be considered, but not the 'direct' liability
of the NT government for failing to train the officers in proper procedures-
see [132]. The majority hold at [138] that issues of training were raised
during the trial and that the second trial judge was entitled to take them into
account in determining the amount of exemplary damages.
On the quantum issue, however, the majority hold that a total
award of $800,000 (4 x $200K) is excessive. They refer with some approval at
[142] to some English & Welsh decisions which hold that
where the same conduct by a defendant involves multiple instances
of wrongdoing and exemplary damages are considered to be necessary then (at
least where all the victims are before the court) the appropriate course is, in
very broad terms, to consider the amount of exemplary damages that the
defendant ought to pay and then to apportion that sum amongst the plaintiffs.
They seem to then conclude that $200,000 would be an appropriate
global award for exemplary damages in this case, and hence award each of the 4
appellants $50K- see [148].
There were also issues at the lower level about an award of
pre-judgment interest on general damages (which had been denied by the second
trial judge in light of the large award of exemplary damages). The majority
here rule that this was wrong, that such interest is usually an important
feature of compensation and should be awarded without taking into account any
amount of exemplary damages- see [150]-[151].
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and Justice
College of Human and Social Futures,
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://ssrn.com/author=504828
I acknowledge the
Traditional Custodians of the land in which the University resides and pay my
respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land
in which the Newcastle City campus resides and which I work.
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