Principles of Torts: Case Commentary on Fede v Gray [2018] NSWCA 316

This report provides a detailed case commentary on Fede v Gray [2018] NSWCA 316, a significant case in the realm of tort law. The analysis begins with a concise overview of the factual background, highlighting the incident where Sergeant Fede was bitten by Mr. Gray, who was believed to be mentally ill. The report delves into the judgment of the District Court, the issues raised in the appeal, and the arguments presented by both parties, including the appellant (Ms. Fede) and the respondent (Mr. Gray). Key issues discussed involve the defendant's mental health as a defense, the applicability of the Civil Liability Act 2002, and the question of exemplary damages. The commentary critiques the legal analysis, comparing it with established legal principles and precedents like Weaver v Ward, and exploring the implications of the court's decision on the understanding of intentional torts, mental illness as a defense, and the assessment of damages. The report also examines additional arguments and the court's consideration of evidence, particularly the relevance of mental illness and illicit drug use, providing a comprehensive understanding of the case's legal and practical significance.

Running head: PRINCIPLES OF TORTS
PRINCIPLES OF TORTS
Name of the Student
Name of the University
Author Note

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Introduction
In the case of Fede v Gray by his tutor New South Wales Trustee and Guardian [2018]
NSWCA 316 the defendant caused an injury to the appellant who was on duty. Sergeant Fede
came upon a person who was Wally Gray the defendant of the case who was acting in a bizarre
way. The sergeant after inquiring about the defendant thought of apprehending the defendant
under sec 22 of the Mental Health Act, 2007 (NSW) (MHA)1 because Sergeant Fede thought that
the defendant appeared to be mentally ill and therefore, for further examination and assessment
the defendant was sent to the mental health facility.
This paper discusses the above-mentioned case and takes into consideration the different
factors which led to the judgment or the decision given by the court on this case. It discusses
about the factual background of the case in brief and the issues which were raised in the court
which led to the particular judgment of the case along with the different arguments which were
held in the case. In conclusion it summarizes the various points that were discussed in the paper.
Discussion
Ms Fede heard a scream which happened at the back of her police station. She found Mr
Gray whom she had known talking to someone but there was no one present. On seeing this she
went to his house and had a discussion with his partner who said that he was having
hallucinations and he went out with the intention to kill someone. Mr Gray’s partner thought that
he was mentally ill and needed to be admitted in a mental asylum and advised Ms Fede the same.
She also informed Ms. Fede that Mr. Gray had not been taking any kind of drugs for several
months. After meeting with Mr Gray again she came to a decision that the defendant needed to
1 Mental Health Act, 2007 (NSW) (MHA)

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be apprehended and detained under the section 22 of the Mental Health Act, 2007. Mr. Gray
after being taken to the mental asylum was trying to leave but he was check drilled by a senior
constable. Mr. Gray’s health was deteriorating as time passed and he was also in need of
immediate treatment. After contemplating about the condition of Mr. Gray he was informed that
he would be kept under observation for a while on which Mr. Gray tried running towards the
smoked close doors and while everyone else tried to handle him and tackle his behavior Ms.
Fede thought of assisting and the other officer handcuffed him while Ms. Fede was told that he
had been handcuffed she thought of releasing him at which point Mr. Gray lunged forward and
bit Ms. Fede on her inner thigh 2.
Judgment given by the district court
Mr. Gray had pleaded guilty for a number of offences, which was initiated because of
him, and he was also sentenced to 3 months imprisonment. He wrote a letter of contrition to all
the victims which also included Ms. Fede and he had stated that he was on drugs during the time
of that incident. Ms. Fede had commenced proceedings in the district court which was in order to
seek damages for battery. She had faced injuries for which she asked for damages. The trial
judge dismissed the case by stating that Mr. Gray was not in a proper state of mind where he
would be able to form an intention to cause any kind of harm or injury therefore, the defendant
was not acting negligently neither was the defendant acting intentionally because the defendant
was suffering from mental illness at the time when the incident took place. Therefore, the trial
judge dismissed the case. Damages were given in the form of 35,000 dollars. Ms. Fede went for
appeal and Mr. Gray went to cross appeal the appellant.
2 Jade.io. (2019). BarNet Jade - Find recent Australian legal decisions, judgments, case summaries for legal
professionals (Judgments And Decisions Enhanced). Retrieved 14 September 2019, from
https://www.jade.io/article/624171

3PRINCIPLES OF TORTS
The primary issues which were held under the court
i) Whether the mental health of the defendant or Mr. Gray was such which could not
make him liable for the injury caused by him to Ms. Fede.
ii) Whether as per section 3B (I) (a) of the Civil Liability Act 2002, would eliminate the
proceedings which would have been held in the court from being operated under the
Civil Liability Act 20023.
iii) Whether there was any kind of failure to award any kind of exemplary damages to
Ms. Fede by the primary judge.
Arguments in the Court as per the issues
As per the issues in the court the following arguments were made which would determine
the judgment.
As per the first issue it was discussed that Mr. Gray’s act was found to be voluntary which meant
that at the time of the incident the act was directed by his mind which was considered to be
conscious and thus, it was argued that the act of harming or causing an injury to the appellant
was intentional which can be observed from the case of Weaver v Ward [1792] EngR 2772; 1616
Hob 134; 80 ER 2844. It was also argued by a different person that since the act was involuntary
the person was not liable for battery because the physical act was considered to be involuntary or
if the accident was inevitable. It can also been seen in the case of Carter v Walker (2010) 32 VR
1; [2012] VSCA 3405.
3 Civil Liability Act 2002
4 Weaver v Ward [1792] EngR 2772; 1616 Hob 134; 80 ER 284
5 Carter v Walker (2010) 32 VR 1; [2012] VSCA 340

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It was comprehended that the act that was committed by the defendant was not an
involuntary act though, the defendant thought that he was being attacked therefore, he acted in
that particular way but it was not involuntary.
As per the second issue it was considered that the biting which occurred was intentional
and voluntary under the section 3B of the Civil Liability Act this voluntary act had satisfied the
condition under this act. However, even if it was voluntary on the part of the defendant it was not
intentional, as the defendant because of the mental condition did not understand the nature of the
voluntariness of the act. According to the second part of the section the intention was not
satisfied since the defendant was not in the state of mind to have any intention to cause the injury
and there was no assessment of the damages. There was no assessment if damages given by the
trial judge. If there was any kind of application then there would have been no damages awarded
in case of any non-economic loss if it was more than fifteen percent in the most extreme cases.
There were no such damages to that extent and no medical evidence supported or found such
damages to an extent. Therefore, according to section 16 of the Civil Liability Act there should
have been no amount given to the plaintiff for any kind of non-economic loss. It was also argued
that the question of the damages to be assessed at common law or even under the Civil Liability
Act6 which made it question that whether the act committed by the defendant was intentional and
it was considered to cause injury to the appellant under section 3B (I) (a) of the above-mentioned
Act. It was argued that Mr. Gray acted with the intention to cause injury since he opened his
mouth and bit a significant portion of the appellant’s inner thigh which gave him the intention to
cause some kind of injury to the appellant.
6 Civil Liabilities Act, 2002

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As per the third issue which was stated in the court Mr. Gray had acted in a certain way
because he was of this notion that his detainment was against his will and he was being given
some kind of medication against his will. Biting Ms. Fede’s leg was an attempt to escape from
the situation it was considered to be a spontaneous reaction to the situation. It was not considered
to be a wrongdoing which was conscious and because of that reason exemplary damages should
have been awarded as there was no disregard to Ms. Fede’s rights. It was seen in Gray v Motor
Accident Commission (1998) 196 CLR 1; [1998] HCA 707.
Other issues that were held in the court
i) Whether the mental illness is considered to act like a defense for any kind of action
which causes trespass of a person.
ii) Whether the relevancy of mental illness is due to use of illicit drugs
iii) Whether the defendant involved in the case was in the state of mid which would act
as a defense that is known to law.
Ms. Fede had also stated that the judge failed in awarding her exemplary damages and it
failed to provide with adequate reasons for liability along with exemplary damages.
Arguments held by the appellant
Ms. Fede who was the appellant of the case stated that the defendant’s state of mind was
considered to rely on three propositions which were at first the appellant stated that the primary
judge in this particular case did not hold the decision by the involuntariness of the act but held
the decision on the mental illness of the defendant which was caused due to the use of illicit
drugs and due to this fact the liability on the basis of tort was denied. This in turn caused an error
7 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70

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in law she also mentioned that mental illness could not be considered as a defense which would
cause trespass to a person. She depends on the case which was seen in Weaver v Ward [1792]
EngR 2772; 1616 Hob 134; 80 ER 284 which stated that even a lunatic person the person would
be answerable in trespass. She had criticized the judge’s rationale and reasons and did not give
adequate explanations for the same. Ms. Fede had also stated based on the judgment made by the
judge that the defendant had caused an injury to the appellant on an intentional basis with a
conscious mind. She also stated that it was an error on the judge’s part while discussing the case.
She also submitted that the judge caused an error with respect to the line of authority in relation
with the Weaver v Ward. It was also noted that the case that the defendant did not provide any
evidence regarding the involuntariness of the act which was caused by him. According to the
doctor who accepted the fact that the act was not involuntary but he contradicted by saying that
even though the act was not involuntary the defendant had suffered from mental illness which
affected the consciousness of the decision. The doctor had also stated that even if a person has
any kind of hallucinations or any kind of irrational behaviors the person is still capable of
performing his day to day functions and carry out a normal life8. Ms. Fede further stated that the
act was voluntary and intention to harm was caused because the defendant had the motive to
cause an intention since that action would prevent him from being detained and thus to avoid
being detained the defendant acted in that manner which would cause an injury or death to the
person. She stated that though Mr. Gray who was considered to be the defendant of the case was
under the influence of some illicit drugs his action could not be considered to be an action which
was without any fault which was also seen in the case of Weaver v Ward. It was stated by Ms.
Fede that the primary judge had made another error when the oral evidence of the psychiatrists
8 Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and problems. Wolters
Kluwer Law & Business, 2018.

7PRINCIPLES OF TORTS
were not taken or sought for in this case which made the judge make a flawed decision since the
evidences were also miscarried and the actuality of the scenario was not depicted as a result the
decision was also considered to be flawed. She also stated that the act which was caused by the
defendant under section 3B(I)(a) of the Civil Liability Act9 said that the act was considered to be
voluntary and it was intentional which was committed by a conscious mind where the intention
to cause an injury to the appellant was present. The judge did make an error in judgment when it
comes to the payment of the damages without trying to reference the award in relation to any
kind of damages which could have been awarded to the appellant under section 21 of the Civil
liabilities Act which restricts the court to award any kind of exemplary damages to an act which
tried to cause any kind of injury to a person or the even cause death. The primary judge had
made an error as considering that the exemplary damages and misstated it thinking that the
objective of the head of those damages would be regarded as damages which would not be
available because these are stretched beyond any kind of ordinary principle. Ms. Fede also stated
that she wanted an award for exemplary damages because the defendant who was under the
influence of illicit drugs subjected her to serious assault and battery10. She was shoulder charged
by a man and bit by the man on her right inner thigh which caused an injury to the appellant 11.
She stated that this called for exemplary damage because a man who was under the influence of
illicit drugs while she was on duty attacked her and trying to discharge her duties and the
defendant was acting in an aggressive manner which made him act in such a way. This behavior
by the defendant called for punishment to the defendant which would be the cause for general
deterrence. Ms. Fede further stated that the three months imprisonment which was given to the
defendant was not considered to be enough or sufficient because the punishment received by the
9 Civil Liabilities Act, 2002.
10 Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Aspen
Publishers.
11 Hershovitz, Scott. "The Search for a Grand Unified Theory of Tort Law." (2016): 942.

8PRINCIPLES OF TORTS
defendant did not achieve any kind of objective thus, this did not preclude any kind of award for
any exemplary damage.
The essential principles in case of battery was that the battery has been considered to be
an intentional tort which also means that it is trespass to a person which is in disparity to
negligence. The defendant who causes any kind of physical injury or harm by physically
contacting the person unless the defendant has the ability to prove that the action caused was
utterly without any kind of fault. In case of an action that needs to be understood as battery the
intention to cause any kind of harm needs to be established. If the burden of proof is on the
defendant and the defendant is able to prove that the act was caused utterly without fault then
there would be an absence of battery as no intention to cause harm would be absent12.
Can Mental Illness be used as a Defence in Tort
A person’s mental stability cannot be considered to be an excuse in tort as it does not acts
as a defence. There have been various arguments given by various authors as to considering the
fact that mental illness can be used as a defence since the person lacks the mental capacity to
formulate the actions done by the person. However, these arguments have failed as a concept
which has been made for the defence. Therefore, in the present case the judgment was given on
the basis of the mental illness of the person where the defendant was not in the state of mind to
form an intention to harm. In tort it cannot act as a defence. Mental illness should not be used as
a defence since even if a person is mentally unstable the intention can be formed for harming
someone which can further cause an injury or harm to a person or an individual. Therefore, after
understanding the present situation Mental illness should not be considered as a ground for
defence in tort as it constitutes a negligible behavior on part of the person causing such harm.
12 Jackson, Emily. "‘Informed Consent’to Medical Treatment and the Impotence of Tort." First Do No
Harm. Routledge, 2016. 289-302.

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Decision given by the Court
The decision that was given was that although the trial judge failed in finding the
question on the liability and also the tort of battery the decision which was given by the judge
was not incorrect as the appellant or Ms. Fede was not entitled to get any kind of exemplary
damages except for the amount of five thousand dollars which were undisputed for and out of the
pocket expenses.
A leave was granted to Ms. Fede for appeal and a leave was granted to Mr. Gray in order
to cross appeal. Both the appeals were allowed. The appellant and the defendant had to draft
notices with respect to appeal and cross appeal within the fourteen days time period. The orders
which were given in the district court would be set aside. The judgment was given to the
appellant which was in an amount of five thousand dollars. There were no such orders which
determined the costs in the district court or in other court. The orders were proposed by Basten
JA and agreed upon by Meagher JA.
Critical Analysis
According to the judgment given in this particular scenario where the trial judge failed to
notice and could not find the question as to the mental illness can be used as defence. However,
after assessing the judgment made by the trial judge and further researching on this topic it can
be said that there was an intention to harm and the intention which was formed in the mind of the
defendant was enhanced by the illicit drugs on which the defendant was on which made him act
aggressively in order to free himself from being detained. Therefore, the trial judge had caused

10PRINCIPLES OF TORTS
an erroneous judgment on the basis of this as the appellant was caused harm and mental illness
cannot act as an excuse in tort.
Conclusion
Therefore, from the above discussion it can be comprehended or understood that this
particular case was filed by the appellant in order to get damages for the injuries caused to her
due to the defendant who was suffering from mental illness and at the time of the offence was
under the influence of illicit drugs which also influenced him in doing such an activity.
Therefore, the act done by the defendant caused injury to the appellant and thus, she claimed for
exemplary damages which was not awarded to her but the grant to appeal was allowed by the
judge where the defendant was also granted the right to cross appeal. Therefore, in conclusion it
can be understood that the appellant was not entitled to any kind of exemplary damages as the
defendant was acting due to his mental illness and being under the influence of illicit drugs.
Therefore, the act was not considered to be involuntary and the intention to harm was not formed
by the defendant as he was suffering from mental illness. Therefore, no exemplary damages were
awarded to the appellant in this case but the grant to appeal was awarded to the appellant along
with the grant to cross appeal was given to the defendant.

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References
Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and
problems. Wolters Kluwer Law & Business, 2018.
Carter v Walker (2010) 32 VR 1; [2012] VSCA 340.
Civil Liabilities Act, 2002.
Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress.
Aspen Publishers.
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70.
Hershovitz, Scott. "The Search for a Grand Unified Theory of Tort Law." (2016): 942.
Jackson, Emily. "‘Informed Consent’to Medical Treatment and the Impotence of Tort." First Do
No Harm. Routledge, 2016. 289-302.
Jade.io. (2019). BarNet Jade - Find recent Australian legal decisions, judgments, case summaries
for legal professionals (Judgments And Decisions Enhanced). Retrieved 14 September 2019,
from https://www.jade.io/article/624171
Mental Health Act, 2007 (NSW) (MHA).
Weaver v Ward [1792] EngR 2772; 1616 Hob 134; 80 ER 284.