Hearing:	4 June 2024 (further submissions received 12 November 2024)
Court:	Cooper P, Mallon and Ellis JJ
Counsel:	N M Pender, G P McLay and G J Haszard for Appellant B J R Keith and A C Singleton for Respondent E J Watt and F C Monteiro for New Zealand Law Society as Intervener
Judgment:	26 February 2025 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed. Mrs Hawkins’ claim is referred back to the Tribunal for reconsideration in light of this judgment.

B The cross-appeal is dismissed.

CWe make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Table of contents

Introduction [1]

The Prisoners’ and Victims’ Claims Act [8]

The Tribunal’s decision [21]

The High Court decision [24]

Wrongful death cause of action? [31]

Introduction [31]

Accident compensation legislation [32]

Deaths by Accidents Compensation Act [36]

Wrongful death common law claim [53]

Wrongful death claim under PVC Act directly [64]

Conclusion on wrongful death cause of action [69]

Common law claim for psychiatric harm [70]

Introduction [70]

Accident compensation legislation [76]

Common law cause of action [84]

Exemplary damages [89]

Should the claim be referred back to the Tribunal for reconsideration [91]

Other issues [94]

Result [100]

Introduction

One day in June 1987 Colleen Burrows, aged 16 years, was on her way to get takeaways when she was picked up by two men associated with the Mongrel Mob. She was raped and then murdered by the two men driving their vehicle over her repeatedly and kicking her to death. Colleen’s body was so badly mutilated that her mother, Ida Hawkins, could not see her to say goodbye. In the aftermath, Ida felt intimidated by members of the Mongrel Mob. She became a recluse, locking herself in her house, not letting her children go to school and barely leaving her house even to go to the shops.
The two offenders, one of whom was Sam Te Hei, were convicted at a jury trial of Colleen’s rape and murder. Mr Te Hei was sentenced to life imprisonment and served approximately 31 years in prison before being released on parole in 2018. In 2020 Mr Te Hei reached a settlement with the Crown for breaches of his rights while in prison as a result of a behavioural regime to which he was subject. Mr Te Hei’s award was for $17,664.
Mrs Hawkins made a claim under the Prisoners’ and Victims’ Claims Act 2005 (the PVC Act). The Victims’ Special Claims Tribunal (the Tribunal) which determines claims under the PVC Act upheld the claim and ordered that compensation of $15,000 be paid to Mrs Hawkins for emotional harm.[1] An appeal against that order was allowed by the High Court on the basis that the Deaths by Accidents Compensation…

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 Peka v Te Hei

Details

AGLC: Peka v Te Hei [2025] NZCA 32
Case: [2025] NZCA 32
Decision Date: 26 February 2025 at 3.30 pm

CaseChat Overview and Summary

The appeal was heard on 4 June 2024 and judgment was handed down on 26 February 2025. The appeal was allowed and Mrs Hawkins' claim is referred back to the Tribunal for reconsideration in light of this judgment. The cross-appeal was dismissed. The Court made no order for costs.

Mrs Hawkins sought compensation under the Prisoners' and Victims' Claims Act 2005 for emotional harm she suffered as a result of her daughter Colleen's rape and murder by Sam Te Hei. The Victims' Special Claims Tribunal (the Tribunal) upheld the claim and awarded compensation of $15,000. The High Court set aside the award on the basis that Mrs Hawkins did not have a cause of action for damages for emotional harm under the Deaths by Accidents Compensation Act 1952 or at common law. Mrs Hawkins appealed and Mr Te Hei cross-appealed.

The Court concluded that Mrs Hawkins does not have a statutory claim under the Deaths by Accidents Compensation Act for her emotional injury. Nor is there a wrongful death claim at common law. The Prisoners' and Victims' Claims Act does not provide a standalone basis for Mrs Hawkins' claim. However, the Court concluded that Mrs Hawkins may have a common law claim for her mental injury arising from the circumstances of her daughter's death. If she does, it appears that such a claim would be confined to exemplary damages. The Court considered it appropriate that Mrs Hawkins' claim be referred back to the Tribunal for reconsideration in light of this judgment.

Orders