The recent Court of Appeal decision in White v Johnston [2015] NSWCA 18 considers the application of section 3B of the Civil Liability Act in awarding exemplary damages for intentional torts.


Between June 2009 and December 2009 Ms Johnston ('Johnston') attended Ms White's ('White') dental practice to undergo treatment. Johnston alleged that the dental treatment performed by White was unnecessary and ineffective and that White was aware of this, such that the treatment constituted assault and battery.


Finnance DCJ held that the treatment provided to Johnston had no therapeutic purpose and that White had failed to prove that Johnston's consent was valid. Thus, the primary judge held that the treatment amounted to assault and battery and awarded Johnston damages in the sum of $330,397. This award included $150,000 for exemplary damages.


Leeming JA (with Barrett and Emmett JJA agreeing).

Three issues were raised on appeal, including that the award of exemplary damages was excessive. This analysis is limited to the award of exemplary damages.

In order to make an award of exemplary damages for assault and battery, the Court found that the primary judge should have considered and applied section 3B of the Civil Liability Act 2002 (NSW). To grant an award of exemplary damages, the Court found that it is necessary to establish that the proceedings involved "an intentional act that is done by a person with intent to cause injury or death..." Applying this to the current facts, the Court determined that whilst White's conduct was intentional, there was no evidence to suggest that White intended to cause injury. Accordingly, the Court found that the primary judge erred in awarding exemplary damages [130] - [132].

The Court also referred to the judgment of Cowell v Corrective Services Commission of New South Wales(1988) 13 NSWLR 714 at 743, in which it was noted that "It is not a necessary element of assault that the defendant intended to injure the plaintiff" and as such the fact that an intentional tort is alleged and even proven does not automatically mean that section 3B applies.

The Court also considered the hypothetical situation that had White's appeal otherwise failed, were exemplary damages properly awarded. The Court noted that the objectives of exemplary damages are to punish, deter and condemn the defendant. It was further noted that an award of exemplary damages should be made after an award of general damages has been determined and should reference the amount of general and aggravated damages awarded. It was held that the primary judge erred in determining exemplary damages before determining aggravated damages and without making any reference to the general and aggravated damages awarded [145] - [146] and [152].

The Court further concluded that the primary judge erred in regarding Dean v Phung as "very similar" and awarding the same damages on this basis, as the cases were not comparable having regard to the extent of work carried out, seriousness of the harm and the differing financial positions of the practitioners [147] - [152].

Thus the Court concluded that had the other issues on appeal failed, the award of exemplary damages would have had to be set aside.


The Court's interpretation of section 3B of the Civil Liability Act and its finding that for an award of exemplary damages to be made, there must be "an intentional act that is done by a person with intent to cause injury or death..." has implications for the defence of intentional tort claims, as well as implications as to the assessment of quantum of same.

Evidence obtained in witness conferences will be crucial in determining the intention and may serve to extinguish a plaintiff's entitlement to exemplary damages.

An award of exemplary damages by a court will turn on the facts of the case, and needs to be determined after and with reference to awards for general and aggravated damages. It is not sufficient for a Court to accept that cases are similar and award exemplary damages accordingly.