State of New South Wales v Ouhammi [2019] NSWCA 225

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Ouhammi [2019] NSWCA 225 Hearing dates: 13 February 2019 Decision date: 11 September 2019 Before: Basten JA at [1]; Brereton JA at [47]; Simpson AJA at [137] Decision: (1) Leave granted to appeal. (2) The applicant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days. (3) Appeal allowed. (4) Set aside the orders made by the District Court on 6 June 2018 and in their place: (i) order that the amended statement of claim be dismissed; and (ii) order the defendant to pay the plaintiff's costs. (5) The applicant pay the respondent's costs in this Court. Catchwords: TORTS – negligence – negligent battery – plaintiff's thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be reduced due to plaintiff's intoxication – quantum of damages Legislation Cited: Civil Liability Act 2002 (NSW), ss 3A, 3B, 5, 5A, 5B, 5D, 5E, 11, 11A, 16, 50, 52, 54, Pts 1A, 2, 6 District Court Act 1973 (NSW), s 127 Interpretation Act 1987 (NSW), s 35 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 9B Road Transport Act 2013 (NSW), s 108 Supreme Court Act 1970 (NSW), s 75A