Legal Research
Cases
Cuttance v Attorney-General

Cuttance v Attorney-General

Case [2022] NZHC 1766 21 July 2022

No judgment structure available for this case.

Type to search within this case.

THIS JUDGMENT HAS BEEN REDACTED.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF WITNESS, SAVE FOR OCCUPATION, PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 AS SET OUT AT

[98] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-9

[2022] NZHC 1766

BETWEEN
ELIZABETH ANNE CUTTANCE

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 29 June 2022

Appearances:

M A Stevens QC for Appellant

K Laurenson and T Li for Respondent

Judgment:

21 July 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 21 July 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CUTTANCE v ATTORNEY-GENERAL [2022] NZHC 1766 [21 July 2022]

[1] On 28 March 2012, Mr Boyd Cuttance died in hospital suffering a rare form of chronic fungal meningitis. His condition was not diagnosed until a post-mortem was conducted. Prior to his admission to hospital on 15 January 2012, he had spent nearly seven weeks at the Otago Corrections Facility (OCF).

[2] His mother, Mrs Elizabeth Cuttance, considers the Department of Corrections (the Department) did not provide her son with proper medical care during his time at OCF. She brought a claim in the District Court, alleging:1

(a)the Crown breached Mr Cuttance’s rights under ss 8, 9 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA);

(b)the Crown breached its obligations under s 75(2) of the Corrections Act 2004; and

(c)the Crown breached a duty of care to her, as Mr Cuttance’s mother and next of kin, to ensure that he received a proper level of health care while in custody.

[3] She initially sought relief in the form of declarations and damages. However, the claim for damages was abandoned with Mrs Cuttance accepting it was time-barred.2 However, she pursued her claim for declarations that the pleaded duties and rights had been breached.

[4] The District Court found against Mrs Cuttance on all counts. She now appeals that decision, alleging various errors in the Judge’s reasoning. In summary, her grounds of appeal are:

(a)the Judge was wrong to conclude there was no private law remedy for a breach of s 75(2) of the Corrections Act;

1 These are summarised from the District Court judgment and list additional breaches of NZBORA to those set out in the first amended statement of claim.
2 Limitation Act 2010, s 11.

(b)the Judge was wrong to find Mrs Cuttance must show she had suffered a psychiatric disorder before she could obtain a declaration that Mr Cuttance had not been provided with medical care reasonably equivalent to the standard of care available to the public;

(c)the Judge was wrong to adopt a “but for” test to causation rather than the “risk based” test used in Wallace v Attorney-General;3 and

(d)the Judge made various errors when making his factual findings that the medical officer engaged by the Department of Corrections provided a reasonable standard of care.

Factual background

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 Cuttance v Attorney-General

Details

AGLC: Cuttance v Attorney-General [2022] NZHC 1766
Case: [2022] NZHC 1766
Decision Date: 21 July 2022

CaseChat Overview and Summary

The appeal arose from the death of Mr Boyd Cuttance, who died in hospital of a rare fungal meningitis. His mother, Mrs Elizabeth Cuttance, brought a claim in the District Court alleging breaches of the New Zealand Bill of Rights Act 1990, the Corrections Act 2004 and a duty of care. The District Court found against Mrs Cuttance on all counts. She appealed that decision, alleging various errors in the Judge’s reasoning. The appeal was dismissed. The High Court found that the Judge did not err in concluding that s 75 of the Corrections Act did not create a statutory duty enforceable by private action. The Court also found that Mrs Cuttance did not have standing to seek a declaration without a live underlying claim. The Court held that the “but for” test to causation applied and was correctly applied by the Judge. Finally, the Court found that the Judge did not err in finding Dr X provided a reasonable level of care.

Orders