Couch v Attorney-General

[2012] NZHC 2186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-4129 [2012] NZHC 2186

BETWEEN  SUSAN COUCH Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Hearing:         28 March 2012

Counsel:         B Henry for Plaintiff

VE Casey and G Robins for Defendant

Judgment:      28 August 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 August 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

DJ Gates (Whangaparaoa) for Plaintiff

Crown Law (Wellington) for Defendant

COUNSEL Brian Henry

COUCH V THE ATTORNEY-GENERAL HC AK CIV-2005-404-4129 [28 August 2012]

[1]      The  plaintiff  sues  the Attorney-General  on  behalf  of  the  Department  of

Corrections (the defendant).  She seeks exemplary damages of $500,000.

[2]      The plaintiff’s claim is founded on the release on parole of William Bell, who subsequently murdered three people at the Panmure RSA.   At the same time he gravely injured the plaintiff.

[3]      By notice dated 8 June 2011, the plaintiff advised that she requires her case to be tried before a jury.   The defendant opposes that mode of trial.   By application dated 6 July 2011, the defendant applied for an order that the case be tried by a Judge alone.

Section 19A, Judicature Act 1908

[4]      Section   19A  of  the   Judicature  Act   1908   provides   that   certain   civil proceedings may be tried by a jury:

(1)       This section applies to civil proceedings in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels.

[5]      I am prepared to accept that a claim for exemplary damages is a claim for pecuniary damages for the purposes of s 19A.  That is not a matter which is beyond argument.[1]    However, the defendant does not pursue the point and, purposively, I take the view that s 19A intends “pecuniary damages” to mean “money damages” – that is, damages calculated in money.[2]

[1] “Pecuniary damages” at common law are compensatory whereas “exemplary damages” are

punitive: see Couch v Attorney-General (No 2) [2010] 3 NZLR 149 at [215] per McGrath J

[2] There are a number of cases where juries in civil cases have considered claims for exemplary damages, e.g. Gregory v Gollan [2008] NZCA 568, McInroe v Leeks [2000] 2 NZLR 721 (CA), M v L [1998] 3 NZLR 104 (HC).

[6]      Section 19A(2) provides that where, as here, more than $3,000 is sought:

... either party may have the civil proceedings tried before a Judge and a jury on giving notice to the court and to the other party, within the time and in the

manner prescribed by the High Court Rules, that he requires the civil proceedings to be tried before a jury.

[7]      Section 19A, therefore, gives a party to a qualifying civil proceeding a prima facie right to trial by jury.  But it is not an absolute right:[3]

[3] Judicature Act 1908, s 19A(5).

Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be tried before a jury, if it appears to a Judge before the trial—

(a)       That  the  trial  of  the  civil  proceedings  or  any  issue  therein  will involve mainly the consideration of difficult questions of law; or

(b)       That  the  trial  of  the  civil  proceedings  or  any  issue  therein  will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,—

the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury.

[8]      This proviso allows a Judge to make a commonsense decision as to whether a civil proceeding is suitable for trial by jury.

Subsection (5)(a)

[9]      The point of subs (5)(a) is that a jury’s task is to make findings of fact.  The Judge’s role is to make rulings on the law and to use those rulings to formulate the factual issues which the jury must decide.  There are cases where it is difficult to separate the two roles. The Court of Appeal put it this way:[4]

The  cases  which  come  within  para  (a)  are,  we  think,  cases  where  the questions of law are of such a nature that it becomes difficult to keep the respective functions of Judge and jury separate from one another.  There are cases where matters of law and matters of fact so merge into one another that the task of the jury becomes complicated in the application to the facts of questions of law which it is difficult for the Judge to explain in language they could be expected to appreciate and apply.

[4] Guardian Assurance Company Ltd v Lidgard [1961] NZLR 860 at 864.

[10]     The point of subs (5)(b) is that some cases will simply be too long and/or the issues too complex to be conveniently tried with a jury.  In my view the emphasis of subs (5)(b) is on “conveniently”.  A jury is presumed competent to determine any factual issue, just as a Judge sitting alone is presumed competent to determine any factual issue.   However, some issues may take a very long time to define.   Some issues require the parties to take considerable care to educate the tribunal of fact, be it Judge or jury, on the area of specialist expertise involved so it will be in a position to determine the issues of fact properly.

[11]     A jury consists of 12 members of the public chosen by ballot.  Jurors have to suspend the normal passage of their lives to serve on a jury.  Once a trial starts they have to continue serving until they have delivered their decision.  There is a limit to what they can be expected to do in order to decide a dispute about liability to pay money.  There is also a limit to what the parties and the Judge can be expected to do to assist the jury so as to ensure that its decisions on the facts are made on a proper basis.

[12]     On the other hand, a Judge’s job includes sitting on lengthy and complex civil cases.  It includes working outside sitting hours as the trial progresses to ensure he or she is abreast of the evidence and understands it.  Crucially, the Judge can reserve his or her decision at the conclusion of the trial and take whatever time he or she needs to review the materials and the arguments of counsel.  Once the Judge has reached a view on the facts, the law can be applied and written judgment given. The judgment, of course, gives reasons for the decisions reached.

[13]     There is a broad interests of justice criterion in the evaluation of whether, against the statutory criteria, a case can be tried conveniently with a jury.[5]

[5] Ibid, at 863.

[14]     The plaintiff ’s case is set out in her third amended statement of claim dated

24 February 2012.  It occupies 43 pages.  The plaintiff claims that the parole officer who was in charge of William Bell owed the plaintiff a duty of care due to the special  relationship  between  the  parole  officer  (as  supervisor  of  Bell)  and  the plaintiff as an employee of the Panmure RSA.  It is pleaded that the parole officer breached this duty of care thereby causing the plaintiff harm (at the hands of Bell) which should be the subject of exemplary damages.

[15]     The plaintiff does not claim against the parole officer.  The pleading is that the defendant is vicariously liable for the actions of the parole officer and so the claim is against the defendant.

[16]     The plaintiff claims similarly against the defendant directly.

[17]     The statement of defence to the third amended statement of claim occupies

40 pages.  It denies that either the parole officer or the defendant owed the plaintiff a duty of care, that there was a special relationship, that there was a breach of a duty of care, that there was causation, or that exemplary damages should be available.

The parties’ submissions

[18]     The  plaintiff’s  position  is  captured  by  the  following  passages  from  her

submissions:[6]

[6] Submissions in opposition to application by defendant for trial by Judge alone, dated 23 March

2012.

3.The documentation involved is not large and not controversial.  The jury has no need to understand complex policies as the behaviour alleged by the Plaintiff, indeed, the gravamen of the tort, is the fact the Probation Officer was so far outside the conduct of a reasonable probation officer that the civil jurisdiction will step in and provide a remedy.   If the Defendant is seeking to argue that the Probation Officer was following the manual then the issue could be different. The point the Plaintiff makes is this is not a breach of a manual; this is not a minor straying from the work of a prudent probation officer and Probation Service.

4.This is dereliction of duty in the extreme by the Probation Service whose Probation Officer was without doubt so far out of control. The facts are so far removed from the behaviour of a reasonable probation officer that the conduct was “outrageous” and involved a consciously run and/or deliberately taken risk.

[19]     The defendant’s position is captured similarly as follows:[7]

[7] Defendant applicant’s submissions in support of application for hearing by Judge alone, dated

14 March 2012.

2.The case raises novel and complex issues of law and mixed law and fact.  The claim alleges negligence not only by the Probation Officer supervising Bell’s parole, but also directly by the Department itself. It alleges previously unrecognised duties of care, claiming both personal liability by a statutory officer and institutional liability by the Department of Corrections for the criminal offending of a person not under the direct day to day control of the State.

...

4.The  case  is  not  suited  to  determination  by  a  jury,  given  its complexity, the number of difficult questions of law and mixed fact and   law,   the   likelihood   of   extensive   expert   evidence   and documentary  review,  and  the  desirability  of  having  clear  and reasoned findings both for the purposes of any appeal and because of the wider impact of any decision.

[Citations omitted]

Discussion

[20]     In my view this application (and the onus is on the defendant as applicant)

turns on the applicability of s 19A(5)(a).

[21]     So far as s 19A(5)(b) is concerned, I accept the plaintiff’s submissions that the documents which would have to be put to a jury, drawn largely from the defendant’s files, would not require such a prolonged examination as to engage a Judge’s discretion.   Neither would the issues to be addressed by expert evidence (relating to the adequacy and standard of supervision of Bell) be so difficult as not to be conveniently decided with a jury.

[22]     I acknowledge that the number of documents discovered by the defendant is high (approximately 13,000) and that some of those are lengthy.  However, I would

expect that considerations of relevance would limit the number which would actually have to be considered by a jury.

[23]     That is not to say that a jury would not be called upon to examine a large number of documents.  Nor to say that the issues relating to the quality of the actions of the parole officer and the defendant would be straightforward.  But it would be a mistake to place the threshold of convenience with a jury too low.  Juries routinely in criminal trials are called on to consider expert evidence on complicated scientific issues.   In civil cases, before ACC, issues of negligence, causation and damages commonly required  juries to examine documents or accounts  and to investigate difficult questions in a range of specialist disciplines.

[24]     In this case it seems to me that the more relevant point is the one expressed by the defendant as follows:[8]

[8] Ibid, at para 79.

There is, on the contrary, little scope for direct conflicts of evidence as to what people said and did. The evidence of the plaintiff and the defendant are unlikely to overlap as to events, and the basic factual narrative of what occurred is not likely to be significantly in dispute.   Rather, it is the implication in law of those events, in the broader context of the proper role of the Probation Officer and the Department, that is at issue in the case.

[25]     In my view, this is a case where it would be difficult to keep the respective functions of Judge and jury separate from one another.   Decisions on the law and decisions on the facts will merge and be interrelated.  It might be that the case will have  to  be  managed  in  stages,  with  decisions  on  the  law  being  necessary  to determine the scope of subsequent evidence.

[26]     I accept the submissions of the defendant:[9]

[9] Ibid, at 33-34.

33.The key elements of the claim involve mixed questions of fact and law.   Each requires an assessment of facts measured against a fact specific application of legal principles.  Each requires the Court to assess whether the facts as established are sufficient as a matter of law to  support the necessary findings that  add  up to liability in negligence.   Further, key legal principles, such as the fundamental question of whether a duty of care ought to be imposed at all, or the basis for imposing institutional liability, are novel and not yet developed.

34.The key elements are also interrelated.   So, for example, whether there has been a breach of duty of care cannot be assessed until the existence and scope of the duty has been established.  Establishing a duty of care requires an assessment of facts and mixed law and facts, as is clear from the first Supreme Court decision.

Decision

[27]     I find that the trial of this proceeding will involve mainly the consideration of difficult questions of law.  The issues are not likely to be issues of fact but issues as to how the law responds to the facts.  The facts to be established, and the light in which they are to be viewed, might have to be determined by successive rulings on the law, which would unreasonably complicate the task of a jury.  This is not a case suited to trial by jury.

[28]     I grant the application and order that the proceeding be tried before a Judge without a jury.

Brewer J