Atileo and Anor v Public Trustee [2026] TASFC 6 (Link to JADE).
This Tasmanian appellate decision is of interest as provisions excluding the operation of civil liability legislation can be relevant in medical and abuse claims (as well as assault claims such as here) in a number of Australian jurisdictions. This reasons for judgment in this appeal reviewed a number of prior decisions.
The first appellant, Fauleupolu Atileo, was working at the Syrup Nightclub (the Club) in Salamanca Place, Hobart as a crowd controller. Just after midnight, outside the nightclub, Mr Atileo punched Matthew Leonard. As a result of being punched, Mr Leonard fell backwards and his head struck the roadway. He was very seriously injured. Through his administrator (the Public Trustee), Mr Leonard brought an action against Mr Atileo and his employer, the second appellant, for battery. The trial was conducted before Porter AJ. His Honour found that the Mr Leonard was entitled to an award of damages from both appellants: Public Trustee as Administrator of the Estate of Matthew Leonard v Atileo [2023] TASSC 33.
The appellant challenged the determination of the trial judge (Porter AJ) that the CLA did not apply because, in accordance with s 3B(1)(a), the punch inflicted by Mr Atileo was an intentional act done with intent to cause injury.
When addressing the question of intent, the trial judge had followed the decision of the New South Wales Court of Appeal in Dickson v Northern Lakes Rugby League Sport & Recreation Inc and proceeded on the basis that actual subjective intention must be established. Recklessness or foresight of inevitable consequences or presumptive intention are all insufficient. The argument put on appeal that there was recklessness, not intent, failed.
The central submission advanced by the appellants concerned the construction of s 3B(1)(a) and the meaning of injury. The appellants submitted that his Honour was mistaken to conclude that the section requires only an intent to inflict “something more that trivial hurt or harm”.
The court upheld the decision of the trial judge. Intent to injure, in s 3B(1)(a), means an intent to inflict something more than trivial hurt or harm, something which does not involve an inappropriate use of the word “injury” and an intention to harm or hurt to more than a negligible extent, not merely to shock or startle. ([46]). The terms of s 3B do not require proof of intent to cause a specific injury or an injury of a particular nature or extent. ([50]).
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