Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:B P Henry and T Walker for Appellant

J C Pike and F E Guy Kidd for Attorney-General

Judgment:13 June 2008

JUDGMENT OF THE COURT

The appeal is adjourned in terms of paragraph [1] of the reasons.

REASONS

Para No

Elias CJ and Anderson J [1]
Blanchard J, Tipping and McGrath JJ [73]

ELIAS CJ AND ANDERSON J
(Given by Elias CJ)
[1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the supervision of the parolee who seriously injured her. Her claim has been struck out in the Court of Appeal on the basis that it discloses no cause of action because no duty of care was owed by the Probation Service to her. A further argument that the claim should be struck out on the basis that exemplary damages are not available for negligently causing personal injury did not have to be addressed in the Court of Appeal, because it took the view that no duty of care arose. Whether exemplary damages can be claimed, if a duty of care cannot be excluded, remains a live preliminary issue but is not disposed of in this judgment because the parties did not have time at the hearing to address the point. The question for determination now is whether the Probation Service may owe a duty of care in law to the victim. As the Court is unanimous in resolving this question in favour of the plaintiff, so that the basis on which the claim was struck out in the Court of Appeal falls away, it will be necessary to hold a further hearing on the availability of exemplary damages, if the parties require that matter to be determined before trial. Because the parties may wish to reconsider whether the availability of exemplary damages is suitable for determination before trial, in the light of the discussion in the reasons of the Court about the principles upon which strike-out is appropriate, the appeal is formally adjourned so that memoranda can be filed within one month on that point. If further hearing is required, a fixture will then be made. If further hearing is not necessary, formal orders reinstating the proceedings will be made.
[2] Whether the Probation Service may owe a duty of care to the victim of a criminal assault by a parolee under its supervision is not resolved by New Zealand authority. It falls to be determined in this Court on a strike-out basis, ahead of determination of the facts and before completion of pre-trial processes, including finalisation of the pleadings. Whether the circumstances relied on by the plaintiff are capable of giving rise to a duty of care is the question for the Court.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Couch v Attorney-General

Details

AGLC: Couch v Attorney-General [2008] NZSC 45
Case: [2008] NZSC 45
Decision Date: 13 June 2008

CaseChat Overview and Summary

This appeal concerns a claim for exemplary damages brought by Susan Couch against the Attorney-General in respect of the supervision of a parolee, William Bell. Bell, on parole, attacked Couch at the Returned Services Association (RSA) clubrooms, where she worked, seriously injuring her and killing three other RSA employees. Couch contends that the Attorney-General was negligent in the supervision of Bell by the Department of Corrections and the probation officer assigned to supervise him. The Court of Appeal held that the claim was to be struck out because no duty of care was owed by the Probation Service to Couch. The Supreme Court unanimously held that the claim should not be struck out and the appeal was allowed. The Court held that the claim should be allowed to proceed to trial, subject to the parties being given an opportunity to make submissions on whether exemplary damages should be determined before trial. The Supreme Court found that the claim was not so clearly untenable as to be suitable for peremptory determination on untested facts. In particular, the Court considered that the statutory obligations and powers imposed on the Probation Service in supervising Bell were imposed in substantial part for the protection of the public, and it could not be confidently said that in carrying out its statutory responsibilities the Probation Service could not owe a duty of care to Couch. The Court also considered that the facts bearing on risk and its avoidance were not yet known, and in the absence of any other clear impediment to the existence of a duty of care, to strike out the proceedings would be premature.

Orders