Couch v Attorney-General
[2012] NZHC 2285
•5 September 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2005-404-4129 [2012] NZHC 2285
BETWEEN SUSAN COUCH Plaintiff
ANDATTORNEY-GENERAL Defendant
Hearing: 3 September 2012
Counsel: B Henry and P Knapp for Plaintiff
J Pike for Defendant
Judgment: 5 September 2012
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 5 September 2012 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
D J Gates, P O Box 222 Whangaparaoa, for plaintiff
Email: [email protected]
Crown Law Office, P O Box 2858 Wellington 6140
Email: [email protected]
Copy for:
Brian Henry/Persia Knapp, P O Box 4070 Auckland 1140
Email: [email protected]
Case Officer: [email protected]
COUCH V ATTORNEY-GENERAL HC AK CIV-2005-404-4129 [5 September 2012]
[1] The plaintiff applies for further and better particulars of the statement of claim.
[2] The plaintiff was the victim of a serious attack by a parolee under the supervision of the Probation Service. She sues the Attorney-General for exemplary damages for failure by officers of the Probation Service to exercise reasonable care in the supervision of the parolee. In Couch v Attorney General (No.2),[1] the Supreme Court held that unless a defendant had at least a conscious appreciation of the risk of causing harm, and had run that known risk, that defendant could not be liable for
exemplary damages. The test is one of subjective and outrageous recklessness, not objective recklessness even if it is capable of being described as outrageous. The plaintiff’s case is that a parole officer, assigned to supervise the parolee, was subjectively reckless under the standard set by the Supreme Court.
[1] Couch v Attorney-General (No.2) [2010] NZSC 27; [2010] 3 NZLR 149.
[3] The Court of Appeal’s decision in Price Waterhouse v Fortex Group Ltd
gives authoritative guidance on the role of particulars. The court said: [2]
[2] Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998, at 17-19.
Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish parameters of the case, not the briefs of evidence.
...
What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence, and all necessary ingredients of it, so that subsequent processes and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings. ...
The object of a Statement of Claim is to “state” the “claim”, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial “statement” is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary “statement” of the basic facts said to give rise to the claim, and of the relief which is sought.
...
In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the case in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre-trial exchange of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area for mechanical approaches or pedantry.
[4] The court cautioned against drawing a bright-line distinction between facts and evidence:[3]
Nor, with respect, does it greatly help to talk in terms of “facts” (to be pleaded) and “evidence” (for trial) as if there were some bright-line distinction between the two. There is not. “Facts” can merge into “evidence” without any clear dividing line.
[3] Ibid, at 18-19.
[5] Where reprehensible conduct is alleged, it must be pleaded clearly and with particularity. In Securitibank Ltd v Rutherford (No.25)[4] Barker J said:
[4] Securitibank Ltd (inrec and liq) v Rutherford (No.25) HC Auckland A355/81, 10 October 1983 at 11.
Another important principle is that where misconduct is imputed against any party, those allegations against him must be stated with especial particularity and care. This general statement applies to allegations of fraud, dishonesty, breach of trust, bad faith and the like ...
That applies in this case because of the standard of subjective recklessness set by the
Supreme Court.
[6] The defendant accepted that the statement of claim generally pleaded subjective awareness of risk, but submitted that there were some aspects of the pleading which were deficient. The parts he focussed on were:
[a] Pleadings about a report the parole officer made for the District Court when the parolee was to appear for sentence. The report is pleaded as having concealed the fact that the parolee had not
undertaken a required assessment by a Departmental psychologist,[5] falsely reported that the parolee was abstinent from alcohol and had completed Parole Board requirements.[6]
[5] Appendix 4: 4.2.7, 4.4.8.
[6] Appendix 11:11.7, appendix 14: 14.8.3, 14.12.2.
[b] Pleading that the parole officer had recorded in the Integrated Offender Management System the parolee’s employment in two places but had deliberately omitted a third, the Panmure RSA.[7]
[c] Pleading that the parole officer had not advised the Police that the parolee had not satisfied special conditions imposed by the Prison Board, that the parolee had not lived at approved premises, and that the parole officer had not directed the parolee where to reside.[8]
[7] Appendix 8: 8.2.6, appendix 14:14.9.6.
[8] Appendix 10: 10.3.
[7] On these matters, the defendant generally sought particulars to show the basis for pleading that information given or not given by the parole officer was untrue or falsified and for pleading that the parole officer knew that the information was untrue or falsified. In discussion, it emerged that in asking for these particulars, the defendant was trying to establish whether the plaintiff had evidence to support these allegations and what that evidence was.
[8] While there is not a bright-line distinction between facts and evidence, the plaintiff's pleading is adequate, in terms of the approach of the Court of Appeal in Price Waterhouse v Fortex Group Ltd, to inform the defendant of those parts of the plaintiff’s claim. In particular, there are clear pleadings of intentional concealment. The plaintiff is not required to show in her pleadings how she will prove her allegations or what evidence she has to prove them, but that it is what the defendant is after.
[9] The defendant accepted that if he could not succeed on particulars for the three matters in [6], then the same applied to all these pleadings: Appendix 4: 4.27
and 4.48, Appendix 8: 8.26, Appendix 10: 10.3 of Appendix 10, Appendix 11:11.7,
Appendix 14: 14.8.3, 14.9.6,14.12.2, 14.12.3, 14.12.4 and 14.12.5 of the statement of claim.
[10] The defendant did not pursue the application in respect of paragraphs 23 and
24 of the statement of claim, accepting that these matters could be dealt with at trial.
[11] That left only paragraph 14.11.8 of Appendix 14 of the statement of claim, which contains an allegation against the senior management of the Probation Service. That paragraph is not directed at the parole officer, but at the senior management of the Probation Service. It alleges that the senior management’s failure to supervise was sustained, deliberately concealed, and to the knowledge of senior management put employees of the Panmure RSA at risk.
[12] If the plaintiff is to make such allegations of deliberate misconduct, the plaintiff must identify the members of senior management so that the defendant is adequately informed of the plaintiff’s case. A pleading that asserts generally and without identification that members of senior management deliberately concealed a failure to supervise and consciously put employees of the Panmure RSA at risk is inadequate, as the defendant does not know which managers are the target of the allegations and cannot prepare his defence adequately and efficiently.
[13] For the plaintiff, Mr Henry accepted the point. However, rather than identify particular managers as subjectively reckless, Mr Henry said that he would reduce the misconduct alleged against senior management to one of gross negligence, amounting to objective recklessness, rather than maintain an allegation of deliberate misconduct or subjective recklessness. In turn the defendant accepted that if the allegations were reduced to claims of objective recklessness, then individual managers need not be identified.
[14] With that consensus, it was agreed that the plaintiff should amend paragraph
14.11.8 of Appendix 14 to the statement of claim. [15] I make these orders:
[a] By 12 September 2012, the plaintiff is to file and serve a fresh version of Appendix 14 to the statement of claim, amending paragraph
14.11.8. If the plaintiff is to continue to assert deliberate or subjectively reckless misconduct by managers, they must be identified. Alternatively, the plaintiff may plead less serious conduct against senior managers without identifying individuals, but that pleading will not be a standalone ground for an award of exemplary damages.
[b] The rest of the defendant’s application for particulars is dismissed.
[c] If any party seeks costs in respect of the application, I will deal with that at the next case management conference.
R M Bell
Associate Judge
0