Intentional torts claims in medical cases

Abstract

Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "Negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional tort cliams in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.