Questions as to the operation of section 3B(1)(a) of the Civil Liability Act 2002 (NSW), particularly as regards recklessness, remained partly unresolved following the dental treatment matters of Dean v Phung  NSWCA 223 and White v Johnson  NSWCA 18.
Further limited assistance may be found in a recent non-medical decision of the NSW Court of Appeal today in Croucher v Cachia  NSWCA 132. Drawing from part of the lengthy headnote:
1. A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery unless the defendant proves the absence of intent and negligent on the defendant’s part, that is, that the defendant was “utterly without fault”: at , -.
2. Trespass to the person caused by a blow does not require the plaintiff to prove anything about intention: at .
3. The facts of a case may fulfil the requirements of a cause of action in both battery and in negligence: at .
4. Sections 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is therefore necessary to look at the character of the underlying conduct, rather than whether the claim is in respect of an “intentional tort”: at -, .
State of New South Wales v Ibbett  NSWCA 445; 65 NSWLR 168, Dean v Phung  NSWCA 223, White v Johnson  NSWCA 18; 87 NSWLR 779, applied
5. Sections 52 and 53 of the Civil Liability Act 2002 (NSW) depend upon whether the conduct to which the defendant was responding was (or would have been) “unlawful”. “Unlawful” extends to conduct which is merely tortious as opposed to criminal: at .
6. There is a tortious assault where the act of a person causes another person reasonably to apprehend a threat of force or violence: , 
7. Although not all batteries involve intentional or reckless conduct by the defendant, no error of law is demonstrated by a finding that a reckless defendant has committed the tort of battery: at .
8. A subjective state of mind may be inferred from circumstances other than the person’s own statement as to his or her perceptions: at .
At , Leeming JA noted that the language of “intentional tort” is an unsafe guide to whether s 3B(1)(a) is engaged; it is necessary instead to look at the character of the underlying conduct, as explained in White v Johnson  NSWCA 18; 87 NSWLR 779 at .
The comments at  –  are also of interest, where the court comments that although not all batteries involve intentional or reckless conduct by the defendant, no error of law is demonstrated by a finding that a reckless defendant has committed the tort of battery. As a matter of Australian law: binding authority holds that a reckless or even a negligent defendant may be found to have committed battery.
Recklessness point not decided
Turning however to section 3B and the issue of recklessness, at  – :
- As noted above, s 3B(1)(a) excludes the applicability of many sections of the Civil Liability Act to “civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death”.
- Her Honour appears to have proceeded implicitly on the basis that the cause of action in battery is one which engages s 3B(1)(a) and therefore is not subject to the limitations of the Civil Liability Act. Section 3B(1)(a) would undoubtedly apply if there were a finding that Mr Croucher had intended to injure Mr Cachia, but on balance I consider that the better reading of the judgment is that her Honour found merely that he was recklessly indifferent to the prospect that opening and shutting the shears and thrusting them at Mr Cachia would cause injury.
- It is far from clear that conduct which is reckless, even if it amounts to an “intentional tort” such as battery, engages s 3B(1)(a). It is perfectly clear that a battery which involves merely negligent conduct will not engage s 3B(1)(a). This is because, as noted above, s 3B(1)(a) looks to the nature of the conduct found to occur, rather than to the cause of action which has been pleaded.
- Basten JA referred to the “somewhat awkward terminology of s 3B” in State of New South Wales v Ibbett  NSWCA 445; 65 NSWLR 168 at . InHayer v Kam  NSWSC 126, when dealing with a strike out application, Hoeben CJ at CL expressed the view that, subject to authority, he would have accepted the submission that s 3B(1)(a) “excluded any reliance upon concepts such as ‘recklessness’”: at -, a view which I regard as being not without force. However, even so his Honour regarded an allegation of recklessness as sufficiently arguable not to be struck out. It may also be noted that D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 55-56 notes that the position is unclear but expresses the view that “it would be consistent with the purpose of the exclusion that recklessness be sufficient for the purposes of s 3B(1)(a)”.
- I do not think that it is appropriate to determine this point. The point was not raised at trial at all. Ground 13, which was broad enough to extend to the point, was entirely undeveloped in Mr Croucher’s written submissions supplied before the appeal was heard. None of the cases mentioned in the previous paragraph was debated in oral submissions; instead they were addressed in supplementary written submissions filed after the hearing.
- Because Mr Croucher’s appeal must in any event be allowed, there is no utility in determining a point which was not fully argued and which can have no bearing on the outcome.