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Court of Appeal slams door - defendant’s proof of innocence in negligent (non-intentional) battery

State of NSW v Ouhammi [2019] NSWCA 225 (11 September 2019)

Mr Ouhammi sued the State of NSW alleging assault, battery and negligence in respect of an incident in custody while he was intoxicated, in which a senior constable rushed to close a holding cell door, which caught and almost severed his thumb. It was accepted that the senior constable did not intend to cause injury, so fault became the issue.

In reaching its decision to overturn the trial judge’s decision in favour of the plaintiff, the Court of Appeal was required to consider:

(a)  which party bears the onus with respect to the issue of fault in cases of non-intentional battery (i.e. those in which intention to cause injury is not established);
(b)  whether the senior constable was in breach of his duty of care in failing to take steps to prevent the door catching the plaintiff’s thumb as he lunged towards it after waking from his slumber;
(c)  the defence of contributory negligence in the context of s50 of the Civil Liability Act 2002, which is titled ‘No recovery where person is intoxicated’ and which applies where ‘the person's capacity to exercise reasonable care and skill was impaired’.

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