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IN THE SUPREME COURT OF NEW ZEALAND
SC 49/2006 [2010] NZSC 27
BETWEENSUSAN COUCH Appellant
ANDTHE ATTORNEY-GENERAL Respondent
Hearing:23 March 2009
Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:B P Henry for Appellant D B Collins QC Solicitor-General, J C Pike and R Kirkness for Respondent
Judgment:24 March 2010
JUDGMENT OF THE COURT
AThe appeal is allowed for the reasons given in this judgment and that of 13 June 2008.
BThe order of the Court of Appeal is set aside and the proceedings are remitted to the High Court for hearing.
CThe respondent is to pay to the appellant costs of $27,500 together with reasonable disbursements as fixed by the Registrar. Costs in the lower Courts are to be fixed by those Courts in the light of this Court’s judgment.
REASONS
Para No
Elias CJ [1] Blanchard J [45] Tipping J [73] McGrath J [181] Wilson J [248]
ELIAS CJ
[1] In 2002 the Privy Council in Bottrill v A held:[1]
[U]nder the common law of New Zealand the Court’s jurisdiction to award exemplary damages in cases of negligence is not rigidly confined to cases where the defendant intended to cause the harm or was consciously reckless as to the risks involved.
In the present appeal the Supreme Court overrules that decision and reinstates the view of the Court of Appeal in Bottrill.[2] I dissent from the conclusion. It re‑introduces a “cause of action” condition for exemplary damages despite earlier rejection in New Zealand, Australia, and Canada of similar attempts in the United Kingdom at such restrictions as unprincipled and arbitrary. It requires construction of a “species of negligence”[3] in which intention or conscious recklessness is an element, in order to exclude a remedy of otherwise general application once liability in tort is established. The restriction is justified on the basis that exemplary damages are “anomalous”. Such assessment rests in part on the erroneous but persistent view that making an example of the defendant is not a proper function of the law of torts. That view has been accurately characterised as question-begging.[4] It is unhistorical[5] and was rejected in New Zealand by all members of the Court of Appeal in Taylor v Beere.[6]There, by rejecting confinement of exemplary damages to categories, the Court of Appeal affirmed that they are awarded under a principle of general application.
[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.
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AGLC
Couch v Attorney-General (No 2) [2010] NZSC 27
Case
[2010] NZSC 27
Decision Date
CaseChat Overview and Summary
Susan Couch, a victim of a serious attack by a parolee under the supervision of the Probation Service, brought a claim in the High Court against the Attorney-General for exemplary damages due to the failure of the Probation Service to exercise reasonable care in the parolee's supervision. The proceedings were struck out in the Court of Appeal on the grounds that the claim in negligence could not succeed because no duty of care was owed by the Probation Service to Ms Couch. The appeal was allowed and the proceedings were remitted to the High Court for hearing. The Supreme Court allowed the appeal for the reasons given in the judgment and that of 13 June 2008. The order of the Court of Appeal was set aside and the proceedings were remitted to the High Court for hearing. The respondent was to pay to the appellant costs of $27,500 together with reasonable disbursements as fixed by the Registrar. Costs in the lower Courts were to be fixed by those Courts in the light of this Court's judgment. The legal issues before the court were whether exemplary damages are available for a claim in negligence for personal injury in New Zealand and whether the decision of the Privy Council in Bottrill should be reconsidered. The court held that exemplary damages are available in negligence and are not confined to the intentional torts, rejecting the high ground on which the Attorney-General sought to justify strike out of the proceedings. The court imposed however the precondition of subjective recklessness proposed by the majority in the Court of Appeal in Bottrill but rejected by the Privy Council. This "species of negligence" arises where the defendant consciously appreciates the risk of causing harm and deliberately runs that risk. The court held that the decision in Bottrill should not be reconsidered on the present appeal. The court held that Bottrill is not a precedent that is restrictive of New Zealand common law. The effect of the decision should not be exaggerated. Absence of conscious wrongdoing remains a substantial element as a matter of fact in the assessment whether conduct is outrageous enough to warrant an award of exemplary damages. Bottrill cannot be said to limit the responsiveness of New Zealand law to the developing circumstances of New Zealand society, such as might call for more anxious assessment. No compelling reason has been advanced for departing from it.