Strike out application – Intentional tort claims & recklessness

Hayer v Kam & Ors [2014] NSWSC 126 saw a strike out application by a hospital (the seventh defendant) against whom intentional tort allegations were made, under section 3B(1)(a) of the Civil Liability Act 2002 (NSW).

The application was made on the basis that there was no factual basis for the claim and that as a matter of law, even if a factual basis could be established for the allegation, it was bad in law. The seventh defendant submitted that the legislation did not intend for s3B(1)(a) to extend to causes of action arising from omissions: see [36].

The seventh defendant noted that s3B(1)(a) did not operate to exclude the operation of the CLA with respect to a claim for damages against a person sued for negligently failing to take steps to prevent an intentional act done by another with intent to cause injury or death (State of New South Wales v Bujdoso [2007] NSWCA 44; 69 NSWLR 302). It did, however, accept that where a defendant (as here) is vicariously liable for an intentional act done by another with intent to cause injury or death, the act and intention of the wrongdoer are the act and intention of the vicariously liable defendant (Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; 71 NSWLR 354): see [37].

The hospital argued that the section 3B(1)(a) should be taken to exclude any reliance upon concepts such as “recklessness” or the proposition that damage that is the natural and probable consequence of a tortious act, is presumed to have been intended by the tortfeasor. However, noting some remarks in Dean v Phung [2012] NSWCA 223, the Court held at [41] that it remains uncertain whether a defendant who is reckless as to the consequences of an intentional act has the requisite intention to cause injury for the purposes of s3B(1)(a).

Accordingly the strike out application was refused.