Cooper v Neubert [2017] TASSC 33 (26 May 2017)

On 14 May 2015, Ms Josephine Cooper was a passenger in a vehicle being driven by her friend, Ms Olga Neubert. Whilst Ms Neubert’s vehicle was waiting at a traffic light, Mr Klaus-Dieter Neubert approached the vehicle, pointed a gun at Ms Neubert and shot her in the head. Ms Cooper used the back of her hand to stop the bleeding and to protect her friend. Mr Neubert then pushed the barrel of his gun against the palm of Ms Cooper’s right hand and shot her.

Ms Cooper sued Mr Neubert in trespass, negligent trespass and negligence. Mr Neubert did not defend the claim and the court found that Ms Cooper must succeed in her claim for trespass in the form of an intentional battery, notwithstanding that Mr Neubert gave evidence that he did not intend to hurt her. Because of this finding, the court found that it did not need to consider whether the facts of the case might also fulfil the requirements of a cause of action in negligence; Wilson v Horne [1999] TASSC 33.

The court rejected Mr Neubert’s evidence that he had no intention to hurt Ms Cooper as the objective features of the shooting were to the contrary. Even if Mr Neubert’s evidence were to be accepted, the court found that it would not provide a defence to the tort of battery, even though battery is an intentional act Stingel v Clark [2006] HCA 37, Croucher v Cachia [2016] NSWCA 132. A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'. The requisite direct contact will be present if a defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431. Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It is in those circumstances that a unanimous High Court said in Williams v Milotin [1957] HCA 83 that '[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action' (ie battery and negligence)."

When assessing quantum, the court accepted the evidence of Ms Cooper, which Mr Neubert did not challenge. The court found that a result of being shot, Ms Cooper suffered considerable physical pain and severe psychological effects, and awarded her $2,312,284.20 made up of $175,000 in general damages, $75,000 in aggravated damages and personal injury damages totalling $2,062,284.20.