P v Attorney-General HC Wellington CIV 2006-485-874
[2010] NZHC 959
•16 June 2010
INTERIM SUPPRESSION ORDERS ARE IN PLACE UNTIL FURTHER ORDER OF THE COURT (AS PER MINUTES OF 16 AND 18
JUNE 2010). THE INTERIM ORDERS COVER THE PLAINTIFF AND ANY IDENTIFYING PARITUCLARS (INCLUDING PARTICULARS OF THE PLAINTIFF’S FAMILY) AND THE NAMES AND IDENTIFYING PARTICULARS OF THE PERSONS REFERRED TO IN THIS JUDGEMENT AS AZ, LEADING STEWARD B AND C. FURTHER SUBMISSIONS ARE TO BE MADE SO THAT THE COURT CAN DETERMINE WHAT, IF ANYTHING, IS TO BE OR IS TO REMAIN
SUPPRESSED. JUDGMENT IS ALSO SUBJECT TO ORDER THAT IT NOT BE PUBLICLY RELEASED BEFORE MIDDAY 18 JUNE 2010 (SEE MINUTE OF 16 JUNE 2010).
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2006-485-874
BETWEEN P Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Hearing: 16 November 2010 - 3 December 2010
Appearances: Ms Cooper with Mr Benton for the plaintiff
Mr Hancock with Ms Schmidt for the defendant
Judgment: 16 June 2010 at 10.15 am
(Public version released on 18 June 2010)
JUDGMENT OF MALLON J
PCW V THE ATTORNEY-GENERAL HC WN CIV-2006-485-874 16 June 2010
Contents
Overview ............................................................................................................................................. [1] Introduction ................................................................................................................................ [1] The facts in outline ..................................................................................................................... [2] The claim in outline.................................................................................................................... [5] Evidence rulings ....................................................................................................................... [12] Summary of my decision.......................................................................................................... [13]
ACC bar ............................................................................................................................................. [19] The statutory bar ...................................................................................................................... [19] The parties’ respective positions .............................................................................................. [22] Mental injury from sexual assault ............................................................................................ [27] Mental injury from threats and intimidation ............................................................................ [32] Can a mental injury be divided between covered and uncovered causes anyway? .................. [52] Does from the claim for mental injury from threats and intimidation
arise indirectly out of personal injury covered under the 2001 Act.......................................... [58] Vindicatory damages for tort causes of action ......................................................................... [59] “Pure” financial loss................................................................................................................. [68] Conclusion on ACC bar ........................................................................................................... [71] Exemplary damages ........................................................................................................................... [74] The basis on which exemplary damages are claimed ............................................................... [74]
The law..................................................................................................................................... [78] Exemplary damages on a vicarious liability basis here? .......................................................... [90] Exemplary damages for direct conduct? .................................................................................. [94] a) Navy terminology........................................................................................................ [97] b) Official Navy position on homosexuality in the Service ........................................... [100] c) Official investigations involving AZ ......................................................................... [111] d) Did the Navy comply with policy with respect to investigations of AZ ................... [125] e) Apart from official investigations, what else was known about AZ ......................... [128] f) The alleged sexual assault ......................................................................................... [135] g) The plaintiff’s evidence of complaint........................................................................ [139] h) Events leading to AZ’s release .................................................................................. [143] i) Navy subjectively reckless in handling of plaintiff’s complaint?.............................. [155] j) The alleged threats and intimidation ......................................................................... [160]
Breach of domestic and international human rights instruments ..................................................... [179] The Bill of Rights (Imp.) 1688 ............................................................................................... [181] UDHR ................................................................................................................................... [196] ICCPR ................................................................................................................................... [204] NZBORA ............................................................................................................................... [207] Further issues ......................................................................................................................... [212]
Other matters ................................................................................................................................... [213]
Sexual assault? ....................................................................................................................... [214] Threats and intimidation? ....................................................................................................... [236] Mental injury .......................................................................................................................... [251] a) what must be established ........................................................................................... [251] b) PTSD as a medically identifiable disorder ................................................................ [252] c) Applying the PTSD diagnosis in the court setting .................................................... [259] d) Does the plaintiff have a mental injury?.................................................................... [267] Causation................................................................................................................................ [275] Limitation Act ........................................................................................................................ [285] a) The tort claims .......................................................................................................... [285] b) Reasonable discoverability........................................................................................ [290] c) The “disability” issue ................................................................................................ [308] d) The fiduciary duty claim ........................................................................................... [315] e) The Human Rights claims ......................................................................................... [316] f) Leave? ....................................................................................................................... [317] Remaining matters ................................................................................................................. [318]
Result ............................................................................................................................................... [319] Appendix 1: Evidence rulings
Overview
Introduction
[1] The plaintiff claims damages for an alleged sexual assault on him by AZ in February 1984 on board a Royal New Zealand Navy (the Navy) ship at a time when they were both in the Navy. He also claims damages for alleged threats and intimidation, from other Navy personnel, for reporting the sexual assault. The claim is one of a number of civil claims that have been brought in recent times for alleged abuse (of one kind or another) occurring many years ago suffered by someone who is alleged to be under the responsibility of, or in the care of, the state or private institutions.
The facts in outline
[2] In 1982, when the plaintiff was 17 years old, he joined the Navy as a steward. In 1983 his posting was on the HMNZS Canterbury. He shared sleeping quarters (known in the Navy as “a mess”) with other stewards. One of them was AZ. AZ was a Leading Hand, and so was of a higher rank than the plaintiff. The plaintiff alleges that in February 1984, when the ship was in port at Timaru, AZ sexually assaulted him (fondling his genitals, performing oral sex on him and attempting to sodomise him) when the plaintiff was in his bunk and AZ had returned to the mess from a night out ashore. The plaintiff alleges that the next morning he told another Leading Hand that he had been sexually assaulted. He alleges that this Leading Hand told him, in a threatening and intimidating way, not to take the matter any further and that this was reinforced by other Leading Hands later that day.
[3] In June 1984, when the ship was in Seattle, the plaintiff and others from the same mess made statements about AZ to the Master At Arms (the ship’s regulator). The plaintiff’s statement referred to AZ having fondled his genitals but did not make the other allegations (oral sex and attempted sodomy). The other statements concerned other sexual or suspected sexual activities by AZ with another Leading Hand which were potentially of a consensual nature, as well as unwanted sexual advances of a minor nature made by AZ on others in the mess. These events
occurred at a time when homosexual conduct between males was a criminal offence and was grounds for discharge from the Navy. Immediately following the Master At Arms investigation, AZ was removed from the ship, flown back to New Zealand and discharged from the Navy. The plaintiff alleges that, when others on the ship learned of the complaints that had been made which led to AZ’s removal from the ship, he was threatened and intimidated by a number of the Leading Hands on the ship.
[4] The plaintiff says that as a result of these events he became very unhappy with life in the Navy, and as a result he left the Navy in July 1985. He alleges that he was unable to deal with these events and suffered psychological problems for which he ultimately sought help from professional health advisers. He made a claim for, and was granted, accident compensation cover in 2004 for his mental health difficulties and brought this claim in April 2006.
The claim in outline
[5] The plaintiff brings six causes of action.
[6] There are three claims in negligence. The first of the negligence claims alleges, in summary, that the Navy owed the plaintiff a duty of care to ensure that he was placed in appropriate working and living conditions which it breached by failing to take earlier action to remove AZ from the Navy and for failing to take appropriate action in response to his complaint. The second negligence claim is that the Navy has vicarious liability for the sexual assault perpetrated by AZ, subsequent taunts from AZ and threats and intimidation from the Leading Hands. The third negligence claim is that the Navy owed the plaintiff a “non-delegable” duty of care under which it assumed a particular responsibility for the plaintiff’s wellbeing.
[7] A fourth claim is for assault and battery on the basis that the Navy is vicariously liable for the sexual assault and the subsequent threats and intimidation.
[8] The fifth cause of action contends that there was a fiduciary relationship under which the Navy was required (amongst other things) to take all reasonable
steps to protect the plaintiff from harm. The alleged breach of this duty covers the same ground as the negligence causes of action.
[9] The sixth cause of action contends that the sexual assault and bullying and intimidation was cruel and unusual punishments on him (Article 10 of the Bill of Rights 1688 No 2 (Imp)) and amounted to torture and/or cruel, inhuman or degrading treatment or punishment (Article 5 of the UDHR and Article 7 of the ICCPR).
[10] The first to fifth causes of action seek the same relief, namely:
a) general damages in the sum of $200,000 for mental injury not covered by the accident compensation legislation;
b) exemplary damages in the sum of $85,000;
c) special damages for pecuniary loss of past earning capacity in the sum of $250,000;
d) interest on the sum of $250,000; and
e) general damages for loss of future earning capacity in the sum of
$150,000.
[11] The sixth cause of action seeks a declaration and other orders. It also seeks damages of $100,000, special damages for pecuniary loss of past earning capacity of
$50,000, interest on the $50,000 and general damages for loss of future earning capacity of $100,000.[1]
[1] The last three sums on each cause of action were all subject to variation if another sum was quantified by the plaintiff’s expert.
Evidence rulings
[12] There were some objections to various aspects of the evidence. The only matter on which it was necessary for to make a ruling at the time of the hearing was
in respect of the relevance of certain questions counsel for the plaintiff wished to put to AZ in cross-examination. Attached at Appendix 1 is the ruling I gave on that matter. The only other matter I needed to specifically rule upon in determining this claim concerns the admissibility of what the plaintiff said to others about what had occurred to him. My ruling on this is also set out in Appendix 1.
Summary of my decision
[13] I have concluded that, apart from the claims for exemplary damages, the plaintiff’s claim under the first to fifth cause of action is barred by the Accident Compensation Act 2001 (the 2001 Act). That is because it is a claim for damages arising directly or indirectly out of personal injury covered by the 2001 Act or the former accident compensation legislation. Mental injury from a sexual assault is covered by the 2001 Act. Therefore, to the extent (if any) that the plaintiff’s mental injury arose from the sexual assault it is a claim for mental injury arising directly out of a personal injury and is barred because it is covered by the 2001 Act. To the extent (if any) that the mental injury was caused by threats and intimidation following the sexual assault, that mental injury would have been covered by the Accident Compensation Act 1982 (the 1982 Act) and so is barred as covered by the former Act.
[14] I have concluded that the claims for exemplary damages are not made out. In so far as the exemplary damages are claimed for the Navy’s actions in not removing AZ earlier and in how the plaintiff’s complaint was dealt with, the Navy did not intend to cause the plaintiff harm and nor was it subjectively reckless as to whether harm to the plaintiff would be caused. In so far as the exemplary damages are claimed on the basis of vicarious liability this is not a case where any sufficient deterrent purpose would be served so as to warrant an exemplary award against the Navy for the acts of individuals amongst its ranks.
[15] I have concluded that the sixth cause of action is not made out on any of the various bases on which it is brought. The conduct at issue is not within the scope of the 1688 Act and the plaintiff has not established a right to bring a civil claim for damages for breach of the international instruments relied on.
[16] These conclusions together dispose of the plaintiff’s claim. Apart from providing more detail as to my reasons on these conclusions, it is tempting to say no more. However, significant resources have gone into presenting this case. The matters are of importance to the plaintiff and probably to at least some of the others who were required to give evidence and perhaps others more generally. An appeal is not inconceivable. I have therefore decided that I ought to make determinations on the factual issues that are relevant to the other legal issues that were raised.
[17] As to those factual issues I have concluded, on the balance of probabilities on the evidence presented at the trial, that:
a) The plaintiff was sexually assaulted by AZ. The assault involved at least the touching of his genitals;
b)The plaintiff mentioned the sexual assault to Leading Steward B the next morning, but not in a detailed and specific way and Leading Steward B’s response was to the effect that AZ does this sort of thing but once he is told to go away he does not come back;
c) The plaintiff also mentioned the sexual assault to Leading Steward Hockley, but again not in a detail and specific way and Leading Steward Hockley did not take any action at this stage;
d)Neither Leading Steward B nor Leading Steward Hockley understood from what the plaintiff had said that the sexual assault was as serious as the plaintiff now recalls it is as being.
e) The plaintiff may have received some degree of backlash from some on the ship as a result of his formal complaint to the Master at Arms and AZ’s subsequent removal but it is not proven that he was subjected to serious threats and intimidation on an ongoing basis;
f) The plaintiff has suffered a mental injury but it cannot now be established that the sexual assault and backlash was a material cause of the mental injury;
g) Had I found that the mental injury was caused by the sexual assault and the backlash I would have found the plaintiff was not out of time in bringing the negligence causes of action (on the basis that he had not made the link between the abuse and his psychological dysfunction until July 2004 and similarly it was not until on or after that time that he had the capacity to bring the proceedings).
[18] I proceed to set out my reasons.
ACC bar
The statutory bar
[19] New Zealand’s accident compensation scheme, in place via statute, provides no-fault compensation to those who suffer personal injury by accident. The flip-side of this (termed the social contract) is that, if a person suffers an injury that is covered by the scheme, a claim for damages for compensation for the injury cannot be pursued in the courts. It is therefore necessary to determine whether the plaintiff’s claim, or any part of it, is barred by the accident compensation scheme.
[20] Over the years of its operation changes have been made to the accident compensation scheme and new statutes replacing earlier statutes have been enacted. The current scheme is provided by the Accident Compensation Act 2001 (the 2001
Act). Section 317 of the 2001 Act sets out the scope of the bar on damages claims. It “prohibits proceedings…in any court in New Zealand, for damages arising directly or indirectly out of personal injury covered by the 2001 Act or the former Acts”.
[21] This prohibition applies regardless of the source of the claim (for example, whether the claim for damages is in contract, tort, equity or under statute).[2] And it applies if the claim would have been covered had a claim been lodged, even if no claim was in fact lodged.[3] By s 319 of the 2001 Act, this prohibition does not apply to claims for exemplary damages.[4] The position is less clear where a personal injury has been suffered but the claim is not to compensate for that injury but to vindicate the right.[5]
[2] McGrory v Ansett New Zealand Ltd [1999] 2 NZLR 328 at 332, cited in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Thomson Reuters, Wellington, 2009) (“Todd”) at 34.
[3] Childs v Hillock [1994] 2 NZLR 65 at 69.
[4] As mentioned in Couch v Attorney-General [2010] NZSC 27 at [86] to [90], prior to 1998 (when the legislation first introduced a provision that specifically exempted exemplary damages from the bar or proceedings) this view had been taken in Donselaar v Donselaar [1982] 1 NZLR 97 based on a narrow reading of “damages” in the bar on proceedings.
[5] Todd at 59-60.
The parties’ respective positions
[22] The plaintiff claims to have suffered personal injury. That personal injury is mental injury as a result of the alleged sexual assault and the alleged threats and intimidation[6] when he reported the sexual assault. The parties agree that, in so far as the plaintiff’s claim is for damages for mental injury consequent on the sexual assault, it is barred by the accident compensation legislation. They also agree that the claims for exemplary damages are not barred. Beyond that there is no agreement.
[6] The plaintiff describes this in various ways (eg taunts, bullying and harassment are also used), but I will use “threats and intimidation” to cover the non-physical conduct from others to which the plaintiff says he was subjected
[23] The plaintiff submits that, to the extent that his claim is for mental injury relating to threats and intimidation, it is not covered by the 2001 Act or the former Acts and so the bar does not apply. The defendant submits that mental injury from threats and intimidation are covered by a former Act and so the statutory bar applies.
[24] In the event that the court considers the claim for mental injury from the threats and intimidation is barred, the plaintiff submits that “vindicatory” damages and damages for “pure” financial loss are available. The plaintiff also submits that the bar does not apply to non-compensatory damages for breach of the rights claimed
.
under the sixth cause of action. The defendant’s submissions do not address these points.
[25] I assess the issues by considering:
a) the basis on which a mental injury from the sexual assault is covered under the 2001 Act or the 1982 Act (being the relevant former Act);
b)whether a mental injury from threats and intimidation is covered under the 2001 Act or the 1982 Act;
c) whether the mental injury from threats and intimidation is a separate injury from the mental injury arising from the sexual assault;
d)whether damages for the mental injury from threats and intimidation arises directly or indirectly out of a personal injury that is covered;
e) whether vindicatory (non-compensatory) damages are available; and f) whether damages for financial loss are available.
[26] Exemplary damages and the plaintiff’s sixth cause of action are considered separately.
Mental injury from sexual assault
[27] For the purposes of this section I proceed on the basis that there was a sexual assault and the plaintiff suffered mental injury as a result.
[28] Under the 2001 Act, a person has “cover for a personal injury” if (amongst other things) it is a “personal injury caused by an accident to the person”.[7] “Personal injury” includes physical injuries as well as mental injuries suffered by a person because of their physical injuries.[8] It does not cover mental injuries that are not
[7] Section 20(1) and 20(2)(a) of the 2001 Act.
[8] Section 26(1)(b) and (c) of the 2001 Act.
consequent on physical injuries unless the mental injury is caused by certain criminal acts.[9] “Mental injury” means “a clinically significant behavioural, cognitive, or psychological dysfunction”.[10]
[9] Section 21 of the 2001 Act.
[10] Section 27 of the 2001 Act.
[29] Criminal acts causing mental injury are covered where the “mental injury” is caused by “an act performed by another person” which is an act “within the description of an offence listed in Schedule 3” of the 2001 Act. The offences listed in Schedule 3 include attempted sexual violation and indecent assault. These offences would cover the alleged sexual assault.
[30] To be covered, the mental injury must be “suffered” on or after 1 April
2002.[11] The date the “mental injury” is “suffered” is the “date on which the person first receives treatment for that injury as that mental injury”.[12] “Treatment” means treatment of a type that a person is entitled to under the accident compensation legislation.[13] Here the plaintiff received treatment for his mental difficulties arising from the sexual assault in the form of counselling from Ms Jeffries in July 2004. His claim for cover was lodged on 10 August 2004.[14] The treatment from Ms Jeffries (21 counselling sessions), an independent allowance payment and a lump sum payment were covered by ACC under the 2001 Act.
[11] Section 21(1)(a) of the 2001 Act.
[12] Section 36(1) of the 2001 Act.
[13] Section 36(3) of the 2001 Act.
[14] The plaintiff had earlier sought medical assistance in Australia for his mental difficulties but at this time he did not attribute them to the sexual assault.
[31] This means that the plaintiff has cover for mental injury arising from the sexual assault under the 2001 Act (and has in fact received entitlements under the
2001 Act for that mental injury).[15]
[15] The cover is under s 21 of the 2001 Act if the counselling is viewed as his first treatment for his mental injury and, if not, then s 360 of the 2001 Act would apply to provide cover.
Mental injury from threats and intimidation
[32] The next question is whether a claim for damages for mental injury from threats and intimidation is covered by the 2001 Act or the former Acts. For the
purposes of this section I proceed on the basis that the plaintiff was threatened and intimidated for reporting the sexual assault and that he suffered mental injury as a result.
[33] A claim for damages for mental injury consequent on threats and intimidation is not covered by the 2001 Act. That is because it is not a mental injury consequent on physical injuries and because threats and intimidation are not actions within the offences listed within Schedule 3. The defendant says that mental injury from threats and intimidation would have been covered under the 1982 Act, and, because there was cover under the 1982 Act, the damages claim is barred by s 317 of the
2001 Act. It is therefore necessary to consider whether there would have been cover under the 1982 Act.
[34] Under the 1982 Act claims for cover for “personal injury by accident” included claims for mental injury whether or not a physical injury had also occurred.[16] For the mental injury to be covered it needed to be a “personal injury by accident”. The 1982 Act did not define “accident” and so the courts have interpreted what was intended to be covered by those words, in light of their purpose.
[16] The definition of “personal injury by accident” in s 2 of the 1982 Act referred to “the physical and mental consequences of any such injury or of the accident” and ACC v E [1992] 2 NZLR 426 at 433 and 444 held that mental injury which was not consequent on physical injuries was covered.
[35] In Willis v Attorney-General[17] the Court of Appeal considered the meaning of “personal injury by accident” in the 1982 Act in the context of a claim for false imprisonment, malicious prosecution and negligence said to have caused inconvenience, distress and financial loss, but not personal injuries. The Court referred to the accident compensation legislation as designed fundamentally to supplant the vagaries of actions for damages for negligence at common law. It said that the Act “is not co-incident with the field of such actions, but interpretations
[17] [1989] 3 NZLR 574 at 576.
taking the bar in the Act beyond that field have to be carefully scrutinised”.[18] It said
[18] At 576.
that it had been “settled for some time that physical and mental injuries caused by intentional assaults or batteries (including rape) are personal injuries by accident from the point of view of the victim, so actions for damages of that kind are within
the statutory bar”.[19] It said “that does not mean that the bar extends to other tort actions where a suggested link with the subject matter of the Act is more tenuous”.[20]
[19] At 576.
[20] At 576.
[36] The Court considered that claims for malicious prosecution or a breach of a duty of care to safeguard the plaintiff’s proprietary or economic interests or reputation (that is, a duty of care imposed for some reason other than for the protection of the person’s safety) did not fall within the natural and ordinary meaning of “personal injury by accident”.[21] It reached the same view about a claim for false imprisonment where there was no suggestion that this was accompanied by force (a battery) or a threat of force (an assault). It noted that false imprisonment was concerned with a restraint of the liberty of a person and was not brought about or dependent on force or the threat of force. The Court of Appeal went on to say:[22]
[21] At 577
[22] At 579.
Accordingly we hold that claims for damages for false imprisonment ... are not barred by the Act. If a plaintiff were to claim damages (other than exemplary) for assault, or battery, the position would be different. Such claims are barred. ... If the detention of a plaintiff has been accompanied by physical injuries, damages cannot be claimed for those or for the pain and suffering they have caused.
... any claims for any kind of damages for false imprisonment alone and for any distress, humiliation or fear caused thereby are outside the scope of the accident compensation system and unaffected by the Act. If such mental consequences have been caused by both false imprisonment and assault or battery, a plaintiff can still claim damages for them. It is enough if the false imprisonment has been the substantial cause. (emphasis added)
[37] In so far as the damages for mental injury from the threats and intimidation are claimed under the assault and battery claim (the plaintiff’s fourth cause of action) they fall squarely within the Court of Appeal’s comment that such claims are “personal injuries by accident” and are therefore within the statutory bar. In so far as the damages for mental injury from the threats and intimidation are claimed under the negligence causes of action, the pleaded duties of care are concerned with the protection of the plaintiff’s personal safety (in this case his physical and his mental safety). It is consistent with the intention of the accident compensation legislation to supplant the vagaries of common law actions for damages for negligence that mental
injuries from the threats and intimidation, as sought in a claim for negligence, are barred as “personal injury by accident”. (In so far as the damages are claimed under the fiduciary duty claim, the breaches are not of a fiduciary kind and this cause of action, as in other historic abuse cases,[23] adds nothing to the negligence claims.)
[23] For example S v Attorney-General [2003] 3 NZLR 450 at [75] to [80].
[38] As I understand it, counsel for the plaintiff relies on Willis for the point that the case recognises that not all claims for damages in tort are personal injuries by accident. From there counsel for the plaintiff submits that the threats and intimidation here fell short of a “legal assault” and that mental consequences from an assault short of a legal assault should not be barred. It is said that the threats and intimidation were not a legal assault because the plaintiff was not threatened with immediate harm, only that he would be harmed at some point in the future. It is said that the claim for mental injuries from the threats and intimidation is more akin to a claim for “nervous shock”. By this, counsel refers to claims where a plaintiff has suffered injury through being put in fear of physical injury or has feared the safety of others.
[39] Counsel for the plaintiff refers to Surrey v Speedy[24] as supporting the possibility of a claim for emotional distress caused by “screaming and abusive language”, short of the tort of assault or battery, as not barred by the 1982 Act. The Court in that case did not find that such a claim could exist, or that if it did that it would not be statute barred. The Court was unclear as to the claim that was being made. Although the Court did not strike out the claim, it required the plaintiff to identify whether “there is any wider basis for the claim for damages based on emotional distress which is not covered by the definition of personal injury by accident contained in [the 1982 Act] and which is founded on some basis recognised
[24] [2000] NZFLR 899.
by law”.[25] Given this, the case is not authority, let alone binding authority, that a
[25] At 912.
claim for mental injury arising from threats and intimidation is not a claim for personal injury by accident.
[40] Counsel for the plaintiff also refers to A v Roman Catholic Archdiocese of Wellington[26]where the Court of Appeal discussed a duty of care of A’s caregivers not to inflict emotional harm on A. Counsel’s submission is that “[w]hile this related to events prior to 1 April 1974, there was no indication by the Court [in that case] that the duty, or facts related to it, encompassed acts that after 1 April 1974 would be covered by ACC”. This is a rather weak basis on which to submit that negligent
[26] [2008] NZCA 49.
infliction of mental injury occurring after 1 April 1974 is not covered by the accident compensation legislation. Because the events in A v Roman Catholic Archdiocese of Wellington relating to negligent infliction of emotional harm predated the accident compensation legislation there was no need for the Court of Appeal in that case to discuss whether the claim would be barred had they occurred later. It is reading too much into the absence of such a discussion, where it was not relevant in the case before it, to say that such a claim is not barred.
[41] In any event I do not see how, by describing the claim as short of a legal assault and akin to a claim for nervous shock, this distinguishes the point that is made in Willis. The plaintiff has not pleaded a claim of “nervous shock,”[27] nor any of the three causes of action viewed by the Court in Willis as not barred by the 1982
[27] Which, as discussed in Todd at 182, in any event requires mental or physical injury to be actionable.
Act. The plaintiff has pleaded damages for mental injuries caused by the defendant’s negligence and/or the negligent acts of Navy personnel for which the defendant is said to be vicariously liable. The plaintiff has also pleaded damages for mental injuries caused by an assault and battery by Navy personnel for which the defendant is said to be vicariously liable. The gist of these claims, in so far as the threats and intimidation allegations are concerned, is the fear of harm (whether apprehended to be imminent or not) that the threats and intimidation were intended to engender and which, on the plaintiff’s case, caused or contributed to the plaintiff’s mental injury. These are claims for “personal injury by accident” as explained in Willis.
[42] Counsel for the plaintiff submits that mental injury caused by threats and intimidation is not a “personal injury by accident” because neither the event (the threats) nor the consequences (the mental injury) were “untoward or unexpected”.
However, it does not matter that the person inflicting the assault or battery (the event) intended to do the assault or battery. As is said in Willis, and repeated in ACC v E,[28]an intentional assault or battery which causes personal injury (here, mental injury) is a personal injury by accident from the view point of the victim.
[28] [1992] 2 NZLR 426 at 430.
[43] Accordingly, applying Willis, mental injury caused by threats and intimidation is a “personal injury by accident” under the 1982 Act. The 1982 Act provides cover for such “personal injury by accident” if “the accident” occurred on or after 1 April 1983.[29] Thus, cover was determined by when the “accident” occurred rather than when the “injury” was suffered. Here the “accident” was the threats and intimidation and they are said to have occurred in February 1984 and subsequently.[30]
[29] Section 26(2) of the 1982 Act.
[30] By s 26(2), 30(7) and 32(1)(d) of the 1982 Act, the plaintiff would had cover even though the accident occurred outside New Zealand.
[44] Under the 1982 Act there was a time limit for making a claim.[31] That time limit was 12 months after “the date of the accident causing the injury”. However, the failure to forward the claim within the 12 month period was not a bar to the claim in various circumstances including (as would be relevant here) that the Accident Compensation Corporation was of the opinion that the failure was occasioned “by any other reasonable cause”.[32] In the present case, if the mental injury had not manifested itself until sometime after the 12 month period, that would seem to be reasonable cause for not lodging a claim.
[31] Section 98 of the 1982 Act.
[32] Section 98(2) of the 1982 Act.
[45] For the purposes of the statutory bar in the 2001 Act, it does not matter whether the plaintiff had in fact lodged a claim under the 1982 Act. The question is whether there would have been cover if a claim had been made. That this is the meaning of “covered” under a former Act in s 317(1) (which contains the statutory bar) is reinforced by s 317(7)(a) which provides that “[n]othing in this section is affected by the failure or refusal of any person to lodge a claim for personal injury of the kinds described in subsection (1)”.
[46] This was the view taken in Childs v Hillock33 of the scope of the statutory bar in the 1992 Act (which is the equivalent of s 317 of the 2001 Act). In that case the plaintiff had become sterile as a result of a medical procedure. The procedure was performed at the time the 1982 Act was in force. A claim for accident compensation cover was not lodged before the 1982 Act was replaced with the 1992
Act. The 1992 Act (which was narrower than the 1982 Act) did not provide cover. The Court of Appeal concluded that the bar on a common law damages claim in the
1992 Act applied because at the time the plaintiff suffered the personal injury by accident she could have obtained compensation.34 So, “covered” in the statutory bar meant someone who could have obtained cover, even though they may have failed to do so.
[47] Counsel for the plaintiff contends that a different conclusion should be reached on the basis that the availability of accident compensation cover should be assessed at the time the plaintiff suffered the mental injury. It is submitted that the plaintiff was first diagnosed with Post Traumatic Stress Disorder (PTSD) in 2004.35
It is submitted that the plaintiff’s claim should be considered under the 2001 Act as
the Act in force when the injury was suffered. It is submitted that because there is no cover under the 2001 Act, the plaintiff should be able to pursue a claim for damages. It is submitted that this would be consistent with the reasonable discoverability test under the Limitation Act 1950.
[48] Putting this another way, it might be said that there is something odd about applying the statutory bar to a claim because there was cover under legislation in force at a time when the injury has not manifested itself. However, although the
2001 Act permits claims for cover for mental injuries from the specified criminal acts determined with reference to when the injury was suffered rather than when the act occurred (and in this respect it might be said to be not inconsistent with the reasonable discoverability test under the Limitation Act), the scope of the cover under the 2001 Act does not determine whether the statutory bar applies. That is determined under s 317.
33 [1994] 2 NZLR 65.
34 At 69.
35 This is on the basis of Dr Huthwaite’s evidence which is discussed in more detail later in this judgment.
[49] Section 317 prohibits claims covered under the 2001 Act or covered under the former Act. The rationale for applying the statutory bar is that at the time the “accident” occurred a common law claim in respect of it was barred. The position is really no different than that in Childs v Hillock where, through the change in the scope of cover from later accident compensation cover, the claimant no longer had cover. The Court of Appeal in Childs v Hillock said that the proper inquiry is to ask whether there was cover under the legislation in force when the events occurred.
[50] Subsequent to the hearing before me, the Court of Appeal in W and W v The Attorney-General36 reached the same view, as that which I have reached here, that Childs v Hillock applies. In W and W the same issue arose as here, except that the cover for the mental injury would have been available under the 1972 Act in that case (rather than the 1982 Act as here). There is no basis for distinguishing W and W from the present case in this regard.
[51] Counsel for the plaintiff adds that the accident compensation legislation should be interpreted in a way that is consistent with New Zealand’s obligations under international instruments. She also refers to criticism by the United Nations Committee Against Torture of New Zealand’s failure to ensure that victims of historic cruel, inhumane or degrading treatment are accorded redress. Counsel did not articulate how or why New Zealand’s international obligations would or should alter the analysis. New Zealand’s domestic law provides the limits as to what is covered by the accident compensation legislation and what, as a result of this scheme, is barred from common law action. It is not for this Court to work out some way around this scheme and the statutory bar under our domestic laws on the basis of somewhat vague and limited submissions asserting that a damages claim should be permitted because of international obligations.
Can a mental injury be divided between covered and uncovered causes anyway?
[52] Even if mental injury arising from threats and intimidation were not within the statutory bar as being personal injury covered by the 1982 Act (which is not my
36 [2010] NZCA 139 at [152] to [161].
view) then the next question would be whether the mental injury between the two causes (threats/intimidation and sexual assault) is divisible.37
[53] As is said in Stephen Todd The Law of Torts in New Zealand (“Todd”),38 there can be difficulty in distinguishing between allegedly different injuries. Todd contrasts two High Court decisions. One of those is Robertson v Attorney-General.39
There it was found that the plaintiff could not separate the mental injury suffered through the trauma of seeing someone die in a car accident from the mental injury suffered because of the physical injuries the plaintiff had suffered in that car accident.
[54] The other case referred to in Todd is Sivasubramaniam v Yarrall40 (a case relied on by counsel for the plaintiff). In that case the High Court refused a strike out application in respect of a claim by another road accident victim who claimed damages for mental injury from trauma because her mother had died in that accident. The plaintiff had also suffered physical injuries herself and she had lost her unborn child in the accident. The Judge considered that a person suffering a single mental
injury could sue in respect of a discrete non-physical cause.41 The Judge considered
that at trial the Court would need to determine what proportion of the plaintiff’s mental injury could be attributed to a cause that was covered by the accident compensation legislation and what mental injury could be contributed to a cause that was not.
[55] Todd concludes its discussion on the topic with the view that “probably, if the damages arise out of both covered and uncovered injury and are quite indivisible, the action is barred”. 42 I agree with that view. Otherwise the accident compensation legislation will cover the mental injury anyway and “double recovery” will occur (as noted in Sivasubramanian at [60] to [61]).
37 There is no proper basis on the evidence on which I could find that the threats and intimidation occurred, but the sexual assault did not.
38 (5th ed, Thomson Reuters, Wellington, 2009) at 37.
39 HC Palmerston North CP 16/01 12 August 2002.
40 [2005] NZLR 286.
41 At [48].
42 At 38.
[56] Turning to the evidence, here there was evidence from the expert called by the plaintiff (Dr Huthwaite) that the plaintiff suffered PTSD. The plaintiff submits that an award for this mental injury as a whole should be set and then discounted by
50% to reflect that the plaintiff has received ACC. As to whether there is any evidence in support of such an apportionment, Dr Huthwaite’s view was that the inability of the plaintiff to access the appropriate support after the sexual assault was a “significant factor in the development of PTSD”. Dr Huthwaite did not, however, provide any basis on which an apportionment might be made, nor say that the PTSD could have developed from the threats and intimidation alone. Further, Dr Huthwaite’s view that subsequent events were a significant factor was based on the plaintiff’s account of what happened after the sexual assault (as to which see [236] to [250] below). An expert called by the defendant (Dr Barry-Walsh) also accepted that a negative response from a person in authority and/or ongoing intimidation could exacerbate psychiatric effects suffered from a sexual assault but that was as far as his evidence went on the issue of PTSD attributable to the threats and intimidation.
[57] On the basis of this evidence I would have had real difficulty in finding that the mental injury was divisible and that an apportionment could properly be made.
Does from the claim for mental injury from threats and intimidation arise indirectly out of personal injury covered under the 2001 Act
[58] This raises a further issue, and this is whether any mental injury from the threats and intimidation (even if not covered under the 1982) arises “directly or indirectly out of” personal injury that is covered (ie the sexual assault). I did not receive submissions on this issue and, in view of my other conclusions, it is not necessary to consider this point further.
Vindicatory damages for tort causes of action
[59] The plaintiff submits that the statutory bar under the accident compensation legislation does not apply to damages that vindicate a right and mark a wrong (ie vindicatory damages) as opposed to compensating for personal injury. The plaintiff submits that because the tort of assault and battery is actionable per se (ie without
proof of injury) vindicatory damages do not arise directly or indirectly out of personal injury covered by the Act or the former Acts. The plaintiff further submits that vindicatory damages ought to be available for the Navy’s failure to take steps to prevent the sexual assault and for failing to take appropriate steps when the sexual assault was reported, even though personal injury is suffered.
[60] In support of this submission counsel for the plaintiff relies on Todd. Todd submits that a claim in tort which is actionable per se, such as for assault and battery, can proceed.43 Here Todd is referring to a claim where the plaintiff complains of mental suffering or mental awareness of imminent harm which does not constitute personal injury as defined. Todd goes on to submit that “[v]ery arguably the same principle can apply where personal injury is suffered but the plaintiff does not seek compensation for that injury”.44
[61] Counsel for the plaintiff acknowledges that Re Chase45, a decision of the Court of Appeal, points against the submission that is advanced. That decision was concerned with a situation where a person had been shot dead by a police officer in the course of the execution of a search warrant. As well as seeking exemplary damages, the administrator of the deceased’s estate brought a claim for compensatory damages arising out of the execution of a search warrant and the shooting of a person. No claim was made for compensation of the death itself (this being accepted as barred by the accident compensation legislation). However compensation was sought for the fear of the grave apprehension of harm which, prior to his death, the deceased would have suffered. Nominal damages were also claimed.
[62] The Court of Appeal viewed an assault of this kind, short of physical assault, as an “accident”. It arose from the shooting which was an accident from the point of view of the victim.46 The claim was seen as an attempt to get around the bar under the accident compensation legislation on proceedings for damages for personal
43 At 59.
44 At 59.
45 [1989] 1 NZLR 325.
46 At 329.
injury, including its physical and mental consequences, arising from an accident.47
The compensatory damages were held to be barred.
[63] As to the nominal damages the Court of Appeal said:48
The claims for nominal damages for personal injury must fail for the same reason. The Act bars “proceedings for damages arising directly or indirectly out of the injury or death”. There is no justification for treating proceedings for nominal damages as free from that prohibition. It would open the door to abuse of Court procedure if anyone who was debarred by the Accident Compensation Act from suing for compensatory damages could bring as of right an action for nominal damages.
[64] Accordingly, the Court of Appeal held that apart from the exemplary damages, the claim could not proceed.
[65] The plaintiff seeks to distinguish this decision on the basis discussed in Todd.49 That basis is said to be that since 1992 it has been clear that the bar to proceedings applies only to claims for compensation. As a result, it is submitted in Todd that claims for vindicatory purposes alone (whether seeking nominal damages or a vindicatory declaration) ought to be allowed.
[66] Outside of tort claims where personal injuries are suffered, non- compensatory damages may be available even where personal injury has been suffered. In Wilding v Attorney-General50 the Court of Appeal held that damages for breach of the New Zealand Bill of Rights Act 1990 (NZBORA) could not be claimed to compensate for a personal injury. However it expressed the tentative view that an award of Baigent damages might still be awarded for a breach of a guaranteed right even where physical injury was suffered provided the award was not quantified so as to provide compensation for the injury itself. It suggested that compensation for the
breach of the right could be given but not compensation for the resulting injury. It said: “the compensation would be for the affront, not for its physical consequences.
47 At 339.
48 At 329.
49 2.5.01 at 60.
50 [2003] 3 NZLR 787 at 792.
Putting it another way, there could be damages for the assault but not for the battery”.51
[67] A difficulty with the plaintiff’s submission is that vindicatory damages have not been claimed under the first to fifth causes of action. (Nor has a declaration been sought in these causes of action.) It is presumably because of this that the defendant made no submissions on whether vindicatory damages ought to be available. On the basis of the plaintiff’s submissions I am not persuaded that I should award vindicatory (or nominal) damages in the circumstances of this case where the pleaded causes of action are in tort, it is claimed that there has been personal injury suffered and the claim has proceeded to trial. The purpose that might be served by vindicatory damages (or a declaration) in this case on the first to fifth causes of action is to some degree met by the fact that the plaintiff’s claim has proceeded to trial and some findings of fact are made. To consider vindicatory damages on these causes of action could, as per Re Chase, open the door to many common law claims which the accident compensation legislation is intended to supplant. A case has not been made out as to why that opening of the door, viewed in R v Chase as of concern, should be permitted here.
“Pure” financial loss
[68] The plaintiff submits that a claim for damages for the threats and intimidation is not barred in so far as the claim is for financial loss. In support of this submission reliance is placed on the statement in Green v Mathieson:52
... “personal injury by accident” refers to a mishap causing harm to the person. It cannot include harm to financial or property interests or reputation, even though the damages recoverable for that kind of harm may include in some cases redress for injured feelings or disappointed expectations.
[69] However, this submission takes this quotation out of context. The Court of Appeal goes on to say “[f]or instance the Act can have no bearing on actions for damages for breach of ordinary commercial contracts or for defamation”.53 This is
51 At 793.
52 [1989] 3 NZLR 564 at 571.
53 At 571-572.
the same point as is made in Willis. Claims that are not concerned with a person’s personal safety, but are instead concerned with their proprietary or economic interests or reputation, are not barred. But that does not mean that financial loss suffered as a consequence of personal injury can be pursued at common law.
[70] Here it is not claimed that the financial loss (superannuation from the Navy) is recoverable against the defendant on the basis that the defendant breached a contract with the plaintiff. Rather it is claimed that it was a reasonably foreseeable consequence of the Navy’s actions or actions for which they were vicariously responsible, which actions caused the defendant’s mental injury, that the defendant would abandon his career in the Navy and thereby lose his superannuation. In my view that is a claim for damages arising indirectly out of personal injury covered by the 2001 Act or the 1982 Act.
Conclusion on ACC bar
[71] To summarise, of the pleaded heads of damages on the first to fifth causes of action, it is accepted that the exemplary damages claimed are not barred by the accident compensation legislation. It is also accepted that a claim for damages for mental injury arising from the sexual assault is barred by the accident compensation legislation.
[72] In my view no claim for damages can be made for mental injury from the threats and intimidation because that is a claim for personal injury covered by the
1982 Act. Even if that were not so, such a claim could only be pursued if the mental injury from the threats and intimidation was divisible from the mental injury from the sexual assault and an apportionment could be made on the facts. There is no evidential basis for this. Standing back and looking at the claim as a whole, it would be odd if the plaintiff could pursue the mental injury claim for the threats and intimidation when he has made a claim with ACC, which has been accepted, and when there is no suggestion that the entitlements were apportioned so as to cover
only a portion his mental injury.54
54 As per Robertson at [41] and [42]; and Attorney-General v B [2002] NZAR 809 at 815.
[73] Given this conclusion, that leaves for consideration the claim for exemplary damages and the sixth cause of action.
Exemplary damages
The basis on which exemplary damages are claimed
[74] Exemplary damages are claimed under the first five causes of action. The pleading does not provide any different particulars of the exemplary damages claimed as between the causes of action. The pleading claims exemplary damages on the basis that the persons who carried out the acts or omissions relied on were employed by the Navy, that those persons knew or were reckless as to whether those acts harmed the plaintiff or exposed him to a risk of harm and that they knew or must be taken to have known that those acts were in breach of the plaintiff’s rights.
[75] As expanded on in submissions, exemplary damages where direct liability is pleaded against the Navy (the first, third and fifth causes of action) is claimed on the basis that:
a) the sexual assault and the threats and intimidation were deliberate and would have justified exemplary damages awards against the perpetrators personally;
b)the Navy placed AZ in a situation where he could take advantage of his homosexual orientation and activities;
c) the Navy was aware that bullying and “mess justice” were part of the Navy culture but chose not to intervene or take steps to prevent the sexual assault and the threats and intimidation even though it would have been possible to do so.
[76] As also expanded on in submissions, where vicarious liability is pleaded against the Navy (the second and fourth causes of action) exemplary damages are claimed on the basis that they are appropriate as a matter of policy. It is said that
where the employer is the State, an award of exemplary damages “reminds the State that such conduct [ie conduct deliberately inflicted by its employees] will not be tolerated and …may serve to deter future conduct of that nature” and that “all citizens have an interest in State-run institutions being operated in a manner that prevents abuse of power and flagrant disregard of position”.
[77] Exemplary damages are not pleaded in respect of the sixth cause of action. However counsel for the plaintiff submitted that an award of vicarious exemplary damages is “necessary to fulfil New Zealand’s international obligations”. This is said to be because such an award “would accord with New Zealand’s international obligations to provide an effective, enforceable remedy under the UDHR and ICCPR…in relation to such human rights breaches as are found in this case”. So, as I understand it, it is said that if human rights breaches alleged in the sixth cause of action are established, this supports the appropriateness of an award of exemplary damages for vicarious liability under the second and fourth causes of action.
The law
[78] Since the hearing before me the Supreme Court has delivered its (second)55 judgment in Couch v Attorney-General.56 That judgment dealt with when, in a claim for personal injury from negligence, exemplary damages were available. The Court held57 that it was not enough58 that the negligence was outrageous viewed objectively.59 The Court held that exemplary damages could only be awarded if the defendant acted intentionally or was subjectively reckless.60 Subjective recklessness meant running a consciously appreciated risk of causing personal injury to the plaintiff.61
[79] This deliberate or reckless conduct must be outrageous such that the exceptional nature of exemplary damages (punishing a defendant in a civil case and
[313] Dr Huthwaite’s opinion, having assessed the plaintiff, was that the plaintiff’s psychological state would “have resulted in such disability that it would have prevented him from instructing a lawyer to act on these matters”. His view was that it was “only once he started counselling with Marilyn Jeffrey that he developed sufficient insight and understanding to seek and instruct legal counsel in this matter”. Dr Barry-Walsh considered that if the plaintiff’s account is taken at face value then most psychiatrists would accept that the plaintiff had been unable to confront or address his problems.
[314] Had I found that the plaintiff had proven that he suffered from PTSD (or, if not given that label, clinically significant dysfunction) from the effects of the abuse, I would have accepted Dr Huthwaite’s evidence that it was only with the counselling in 2004 that the plaintiff developed sufficient insight to be able to instruct legal counsel. The earliest this may have occurred was when the counselling commenced in July 2004. As noted, this is a somewhat artificial conclusion because I have rejected that the plaintiff had PTSD (or other mental injury) as a result of the abuse. If he did not have such injury from the abuse I would then have accepted Professor Mellsop’s evidence that the plaintiff was not under a disability.
d) The fiduciary duty claim
[315] The time limits that apply to the first to fourth causes of action do not apply to the fifth cause of action, if they are for fiduciary (rather than tortious) breaches
(and are therefore for equitable relief), but may be applied by analogy.132 The plaintiff has not submitted that a different time period should be applied to this cause of action. I do not consider this further because of my views on the other issues.
e) The Human Rights claims
[316] The sixth cause of action is not subject to the six year time limit133 but, because it is a claim for “bodily injury”, leave to bring the cause of action is required if it is brought more than two years and less than six years after the cause of action accrued.134 I do not consider this issue further because of my view that the cause of action is not made out.
f) Leave?
[317] The proceeding was commenced in April 2006. If the time period did not commence until July 2004 (either on the reasonable discoverability test or because of disability) then leave to commence the negligence causes of action was not necessary. Nor (because of disability) was leave necessary to commence the assault and battery cause of action.
Remaining matters
[318] I do not express any views on whether the Navy would have legal responsibility for the loss claimed under the first to fifth causes of action had they not been barred by the accident compensation legislation. It is unnecessary to do so when I have concluded that the claims are barred. The claim relates to Navy conduct and operations more than 26 years ago which is not Navy conduct and operations
132 Section 4(9) of the Limitation Act; S v G [1995] 3 NZLR 681 at 688-689 discusses this in the context of a fiduciary duty which pleads breaches of substantially the same conduct as are pleaded in respect of negligence claims.
133 Attorney-General v P F Sugrue Ltd CA 106/02 at [69] (discussing the Limitation Act periods in relation to damages for a breach of the Bill of Rights) and Marsh v Attorney-General CIV-2006-485-
000665 HC Wellington 9 December 2009 at [63] - [68] (discussing damages for breach of the 1688
Bill of Rights).
134 Section 4(7) of the Limitation Act; Harris v Attorney-General (2004) 7 HRNZ 369 at [37].
now,135 and in the context of a different era as to how homosexuality was viewed in the Navy. In these circumstances I do not think it would serve any useful purpose in this claim for me to express my views on them. It would however further delay the delivery of this judgment not least because of the substantial volumes of cases counsel have provided me with in support of their respective positions.136 There are a number of other issues which it is not necessary for me to consider and I do not do so.
Result
[319] The compensatory claims are barred by the accident compensation legislation. The circumstances were not such as to meet the test for exemplary
damages. The human rights claims are not made out. The plaintiff’s claim fails.
Solicitors:
S Cooper, Cooper Legal, Wellington, [email protected]
H Hancock, Crown Law Office, Wellington, [email protected]
Mallon J
135 As confirmed by the evidence of Commodore Pepperill and notwithstanding the general comment in the submissions for the plaintiff that “sexual abuse, bulling, intimidation and harassment are still a problem in the armed forces today”.
136 There were 9 large bundles of authorities (five for the plaintiff and four for the defendant)
submitted in support of closing submissions and some further cases were provided subsequently.
Appendix 1: Evidence rulings
Oral ruling given on 20 November 2009 (as recorded at the time):
[1] If the evidence is relevant it is admissible and can be elicited. It is very difficult for me to rule in advance on relevance when I do not know what questions will be asked and what the answers will be. The question which produced the objection was as to who [AZ] had engaged in homosexual sexual activities with. That question is relevant because [the plaintiff] says that [AZ] engaged in these activities with high ranking officers and, at least partly for that reason, felt that [AZ] was protected and that he was not able to take matters further. Ms Cooper has agreed to ask that question so that it does not unnecessarily illicit names. She is interested in ranks rather than names.
[2] At this stage of the case I do not know enough about the other alleged instances where there were denials to know if they have any similarity and therefore relevance for that reason or for some other reason. However the defendant has called this witness. He has said that he did not perpetrate any sexual abuse on [the plaintiff] and in support of that he has said that he would not have engaged in any such activity in the mess, that he is the passive partner in homosexual sexual activities and that he did not have to approach people. Ms Cooper is entitled to test that evidence in cross-examination. It may be that the answers given will mean that the evidence is ultimately irrelevant. If it is it will not be used against the defendant. If the questioning does go too far and is unnecessary that can be ruled upon if and when it occurs. If the evidence is irrelevant and of a private and embarrassing nature it may be that on application the evidence could be subject to suppression orders if I considered that to be appropriate.
[3] As to the privilege against self incrimination I think I can tell – but I want Mr Hancock to confirm this – that I can tell [AZ] that the military has no intention of prosecuting him or anyone else for consenting homosexual activity carried out at a time when it was illegal.
[4] [Mr Hancock confirms that is the position.]
[5] [[AZ] back in dock – advised]:
Sorry for that interruption when you are in the middle of giving your evidence. You did hear or may have heard, you may not remember, but one of the grounds Mr Hancock’s objection to the question you were about to be asked was what is called the privilege against self-incrimination. So what I want to say to you about that is that you are testifying here on the basis and I have that from the military, the defendant, has no intention of prosecuting you or indeed anyone else for consenting homosexual activity at a time when it was illegal.
What I also need to tell you if you’re not already aware of it, is that no one giving evidence has to incriminate themselves. Incrimination being where information could reasonably lead to or increase the likelihood of prosecution for a criminal offence.
If you believe any answer that you give will incriminate yourself then you do not have answer it if you do not want because as I said no one has to incriminate themselves. Obviously if you denied that something had happened then you are not incriminating yourself. And the other thing I want to say is that if you have any doubts about whether you have to answer that question or not then just let me know.
Prior statements by plaintiff
[6] The defendant objected to the evidence of the plaintiff’s friend on the ship as to what the plaintiff said to him about the sexual assault and that the plaintiff had told him he had reported the incident to Leading Steward B. The defendant did not object to the fact that the plaintiff had told him about the incident, nor that the plaintiff was upset, nor that the friend did not recall the plaintiff saying that AZ had tried to rape him. The defendant’s objection was on the grounds of hearsay. The plaintiff did not object to the evidence of the plaintiff’s school friend as to what the plaintiff had told him about the incident. Nor did the plaintiff object to the admissibility of the plaintiff’s statement to the Master At Arms.
[7] In my view all of these statements as to what the plaintiff said about the incident are admissible and for the truth of what is said. The evidence is not hearsay. The plaintiff is the maker of those statements and he was a witness. The statements do however need to be considered under the prior consistent statement rule. The plaintiff’s evidence as to what occurred is the evidence he gave in court. That was
challenged, in part, by what the plaintiff had said to the Master At Arms in 1984. As an inconsistent statement used to challenge the plaintiff’s evidence, the plaintiff’s statement to the Master At Arms is admissible. The evidence of what the plaintiff said to this friend in the Navy and to his school friend is then admissible under s 35(2) of the Evidence Act. Once admissible, these prior statements are admissible to prove the truth of their contents.
Other matters
[8] The defendant objected to other evidence as hearsay and irrelevant (eg the evidence of various rumours) but these were relevant to the plaintiff’s case and were not adduced to prove the truth of their content. Evidence that was in reality submissions on the documents has been ignored but the relevant documents in the agreed bundle of documents have been considered.
0
2
0