Section 3B of the Civil Liability Act only excludes the operation of the Act where the conduct that is the subject of proceedings was intentional, and done with intent to cause injury; the Act is not excluded merely because the proceedings relate to an intentional tort: [8], [51], [169].
[8] As this Court has noted on a number of occasions,[6] s 3B(1)(a) does not refer to an intentional tort, nor indeed to any specific cause of action. Rather it refers to “an intentional act”, which act is done “with intent to cause injury or death”. Thus, both the formulation of the question and the terms in which it was answered wrongly focused on the causes of action, being battery and negligence.
Brereton JA:
[53]The issues which I have found more troubling are:
(1) whether, in the context of non-intentional battery, the plaintiff bears the onus of proving, or the defendant of negativing, fault – on which question the other members of the bench differ – and what amounts to fault for that purpose;
(2) whether that onus has been discharged; and
(3) whether, and if so to what extent, the defence of contributory negligence by intoxication is engaged.[28]