Peka v Te Hei
[2025] NZCA 32
•26 February 2025 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA198/2023 [2025] NZCA 32 |
| BETWEEN | TRACEY IDA PEKA AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IDA HAWKINS |
| AND | SAM TE HEI |
| 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 |
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 Act 1952 (the DAC Act) did not create a right to claim damages for emotional harm and it was not available under the general law either.[2]
[1]Hawkins v Te Hei [2021] NZVSC 31 [Tribunal decision].
[2]Te Hei v Hawkins [2022] NZHC 3170 [High Court judgment] at [31] and [37].
Mrs Hawkins appealed from the High Court’s decision.[3] The principal issue was whether, as a consequence of the intentional tort that caused her daughter’s death, Mrs Hawkins had a cause of action under the DAC Act or otherwise under the general law for which damages for her grief and emotional harm or for exemplary damages were available. If she did, then she was entitled to compensation under the PVC Act.
[3]The question of whether Mrs Hawkins needed leave to appeal the High Court judgment was raised by counsel for Mr Te Hei, given this is a second appeal. The Prisoners’ and Victims’ Claims Act 2005 [PVC Act] does not address appeals to this Court. Goddard J directed in a minute that leave was not required under s 60 of the Senior Courts Act 2016.
Mr Te Hei cross-appealed in relation to statements made in the Tribunal about his connection to the Mongrel Mob and regarding whether a certificate for costs should have been granted (Mr Te Hei having been declined costs in the High Court because Mrs Hawkins was legally aided).[4] He also raised ancillary issues concerning the constitution of the Tribunal under the PVC Act, its practice of not publishing its decisions and its approach to limitation under the DAC Act.
[4]The High Court made no order as to costs. Mr Te Hei made an informal application for the judgment to be amended under r 11.10 of the High Court Rules 2016 (the slip rule) to include an order as to costs. Palmer J advised counsel on 4 December 2022 that he did not consider the circumstances were so exceptional as to require a legally aided person to pay costs.
Sadly, Mrs Hawkins died a little over a month after the appeal was heard and while our judgment was reserved. Once Mrs Hawkins’ daughter, Tracey Peka, obtained legal aid and then a grant of letters of administration, she applied for an order substituting herself as appellant as the personal representative of Mrs Hawkins’ estate.[5] That order was granted by Cooper P on 13 November 2024. Except where relevant to distinguish between Mrs Hawkins and her estate, we refer to the claim as that of Mrs Hawkins.
[5]See Law Reform Act 1936, s 3.
On the principal issue we have concluded that Mrs Hawkins may have a common law claim for her mental injury arising from the circumstances of the rape and death of her daughter Colleen. If she does it appears that such a claim would be confined to exemplary damages. We refer Mrs Hawkins’ claim back to the Tribunal for reconsideration in light of this judgment. We have also determined that the cross‑appeal should be dismissed. Our reasons follow.
The Prisoners’ and Victims’ Claims Act
The PVC Act governs awards of compensation to prisoners and enables victims of offending to make a claim against any awards or settlements made. It was enacted in response to Taunoa v Attorney-General, in which several prisoners were awarded damages for breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) while they were in prison.[6] The Act reflected a perception that victims ought to be able to make a claim against a sum awarded to a prisoner and accordingly provided a mechanism for victims to claim against such awards.[7]
[6]Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC).
[7]van Silfhout v Pathirannehelage [2023] NZSC 148, [2023] 1 NZLR 560 at [13], citing van Silfhout v Pathirannehelage [2023] NZCA 5 at [7], (14 December 2004) 622 NZPD 17987, and Prisoners’ and Victims’ Claims Bill 2004 (241-2) (select committee report) at 1.
Subpart 1 of pt 2 governs specified claims by prisoners, including claims under the Bill of Rights.[8] Its purpose is to restrict and guide the awarding of compensation in such claims to help ensure that compensation is reserved for exceptional cases and used only if and to the extent it is necessary to provide effective redress.[9] If a claim is successful, sub-pt 2 of pt 2 provides for the victims of crime to make a claim against any award.[10] Its purposes are to establish, require payments into and regulate the operation of a victims’ claims trust bank account and to provide a procedure for the making and determination of victims’ claims.[11]
[8]Prisoners’ and Victims’ Clams Act 2005 [PVC Act], ss 6 and 12.
[9]Section 3(1).
[10]It is not contested that Mrs Hawkins is a victim of Mr Te Hei’s offending under the relevant definitions in the Act. Victim is relevantly defined in s 8 of the Act and includes the parent of a child who falls within the definition.
[11]Section 3(2).
A “victim” is:[12]
(a)a person against whom an offence is committed by another person; and
(b)a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to property; and
(c)a parent or legal guardian of a child, or young person, who falls within paragraph (a) or (b) … ; and
(d)a member of the immediate family of a person who, as a result of an offence committed by another person, dies …
[12]Section 8(1).
An “offence” is defined as:[13]
offence, in relation to a victim, means an offence against an enactment—
(a)committed against the victim (or committed against a child or young person of whom the victim is a parent or legal guardian); or
(b)through which, or by means of which, the victim (or a child or young person of whom the victim is a parent or legal guardian) suffered physical injury or emotional harm, or loss of, or damage to, property; or
(c)that resulted in the death of a member of the victim’s immediate family, or in a member of the victim’s immediate family being incapable
[13]Section 4.
A “victim’s claim” is defined as meaning:[14]
… a claim for damages or exemplary damages—
(a)made by or on behalf of a victim; and
(b)made against an offender; and
(c)based on acts done or omitted to be done by the offender in committing the offence.
[14]Section 9.
The PVC Act provides what is intended to be a simple and accessible procedure for victims of a prisoner’s offence to claim against any compensation paid to the prisoner.[15] The starting point is that compensation awarded to a prisoner is paid to the Secretary for Justice who, after deductions for legal aid or reparations owed or any earlier order to compensate a victim, pays the amount into the victims’ claims bank account.[16]
[15]Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Bill 2012 (92-1) (select committee report) at 3.
[16]PVC Act, ss 17–18.
The Secretary must notify persons they reasonably believe to be victims and whose contact details are available and provide them with relevant information, including that they may file a victims claim.[17] A victim makes a claim by filing that claim on an approved form.[18] The claim is referred to a Tribunal.[19] The Tribunal “consists of a District Court Judge designated for the purpose … by the Chief District Court Judge” and that designation must be “from a panel of District Court Judges maintained by the Chief District Court Judge”.[20]
[17]Sections 20–21.
[18]Section 28.
[19]Section 30.
[20]Section 58.
The Tribunal determines the claim on the basis of the written material before it unless it is satisfied that exceptional circumstances make it necessary to hear oral submissions from the parties in the interests of justice.[21] The Tribunal has the power to require a person to provide information or documents or to answer questions set out in a notice given to that person.[22]
[21]Sections 34 and 38.
[22]Section 39.
As to the decision made on the claim, there are three criteria:[23]
The Tribunal must not accept a victim’s claim unless satisfied, on the balance of probabilities, that—
(a)the claimant is a victim of the offender; and
(b)the victim has, through means of the offence, suffered injury, loss, or damage for which the victim has not received, and is not to receive, effective redress; and
(c)the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable.
[23]Section 46(2).
If the claim is accepted by the Tribunal, it may order “that an amount of money” must be paid to the victim.[24] In determining whether to make an order to pay the victim damages or exemplary damages, and in quantifying the amount, the Tribunal is required to “apply the general law relating to the awarding of damages”.[25]
[24]Section 46(3).
[25]Section 47(2).
There is no dispute that Mrs Hawkins meets the first of the three criteria. She qualifies under para (d) of the definition of “victim” as a member of the immediate family of a person (Colleen) who died as a result of an offence committed by another person.[26]
[26]As noted in the High Court judgment, above n 2, at [27], she might also qualify as a victim under para (c) of the definition but this is of no moment for present purposes.
Nor has it been argued that Mrs Hawkins fails to meet the second of the criteria. Her claim sought damages for emotional harm caused to her by means of Mr Te Hei’s offence on her daughter. She also sought exemplary damages. No reparation order was made when Mr Te Hei was sentenced and no voluntary reparation has been paid. Other than payment of some funeral expenses, Mrs Hawkins has not otherwise received any redress for this injury, loss or damage.[27]
[27]Mrs Hawkins said in her affidavit that she did not recall receiving any money from the Accident Compensation Corporation, but did receive a contribution to Colleen’s headstone costs from what would, at that time, have been the Department of Social Welfare.
The issue before us is whether Mrs Hawkins’ claim discloses a cause of action that is, under the general law, one for which damages are in her case payable.
The Tribunal’s decision
Judge Blackie was the District Court Judge who determined the claim made to the Tribunal. On the central issue of whether Mrs Hawkins’ claim disclosed a cause of action that is, under the general law, one for which damages are in her case payable, the Judge reasoned as follows:[28]
I am satisfied that the Claimant discloses a cause of action that is, under general law, including statu[t]e, one for which damages are payable. Also at common law there was a cause of action — assault and battery — there were statutory provisions under s 4 of the Death[s] by Accident[s] Compensation Act which preceded the Accident Compensation Legislation that originated in 1972. In this case, the assault resulted in the death of the Claimant’s (as a victim) daughter. Damages would have been available under the common law.
[28]Tribunal decision, above n 1, at [21].
This reasoning is unclear. However, it appears the Judge was of the view that the claim was available because Mrs Hawkins was a victim who suffered injury, loss or damage as a result of the offence and emotional harm was a type of loss that was recognised in the PVC Act and in other legislation. The Judge had earlier referred to the Health and Safety in Employment Act 1992 and the Sentencing Act 2002 as recognising emotional harm.[29] The Judge also said that the right to claim exemplary damages was preserved by the accident compensation legislation. The Judge went on to say that he was satisfied that the brutality and degree of violence directly led to the emotional harm suffered by Mrs Hawkins and there was “no need to prove mental illness as categorised under the Mental Health Act”.[30]
[29]At [20].
[30]At [22].
On this approach, the Judge regarded Mrs Hawkins suffering emotional harm as self-evident and no further proof was required. The Judge awarded $15,000 for damages for this emotional harm.[31] That sum was based on a similar award made in another Tribunal decision where the respondent was convicted of the murder of the claimants’ son.[32] Exemplary damages were declined on the basis that Mrs Hawkins was an indirect rather than a direct victim.[33]
The High Court decision
[31]At [26].
[32]Payne v Tuhoro [2021] NZVSC 21.
[33]Tribunal decision, above n 1, at [24].
Mr Te Hei appealed against the decision awarding Mrs Hawkins $15,000. Mrs Hawkins cross-appealed the decision not to award her exemplary damages. Mr Te Hei’s appeal was allowed and the Tribunal’s award quashed. Mrs Hawkins’ cross-appeal was dismissed.[34]
[34]High Court judgment, above n 2, at [59].
Palmer J noted that the Tribunal had not rigorously analysed the claim and the reasoning was largely conclusory.[35] He said there needed to be a cause of action for which damages for emotional harm are payable. The matters relied on by the Tribunal did not give rise to any cause of action because:
(a)Neither the definition of “offence” in the PVC Act which referred to emotional harm, nor the other statutes the Tribunal referred to (the Health and Safety in Employment Act or the Sentencing Act) created causes of action upon which Mrs Hawkins could sue for damages.[36]
(b)Assault and battery were tortious causes of actions for the person assaulted or battered rather than third parties. Mrs Hawkins could pursue an action for assault and battery under the DAC Act for an action for assault and battery that could have been pursued by her daughter. However, only damages for pecuniary losses were available on such an action, not damages for emotional harm or exemplary damages.[37]
[35]At [29].
[36]At [29]–[30].
[37]At [31] citing Pou v British American Tobacco (New Zealand) Ltd [2006] 1 NZLR 661 (CA) [Pou (CA)] at [34]–[38].
Palmer J also dealt with several other issues raised on the appeal. The first related to the Tribunal’s policy of not publicly releasing its decisions because of the sensitive nature of the claims. Counsel for Mrs Hawkins and Mr Te Hei considered this to be wrong and unhelpful. Palmer J agreed the decisions should be publicly released unless a suppression order was made under s 41 of the PVC Act.[38]
[38]High Court judgment, above n 2, at [8]–[11].
The next issue related to the decision of the Tribunal to allow Mrs Hawkins to file a late affidavit. For Mr Te Hei it was argued that this was unfair. Palmer J disagreed, noting amongst other things that Mr Te Hei did not seek to file any evidence in response and was not prejudiced by the late affidavit.[39]
[39]At [41].
A further issue was Mr Te Hei’s submission that there was no evidence that Mr Te Hei was a member of the Mongrel Mob after his conviction or that he was responsible for harassing Mrs Hawkins. Palmer J considered the Tribunal was entitled to take into account Mrs Hawkins’ reports of ongoing harassment from the Mongrel Mob following the conviction and the Parole Board’s decisions which referred to Mr Te Hei as a member of the Mongrel Mob, noting the wide power the Tribunal has to receive material that would not be admissible in a court of law.[40]
[40]At [45]–[46], referring to s 59 of the PVC Act.
Lastly Palmer J rejected the submission that, because Judge Blackie was an Acting District Court Judge, his appointment to the Tribunal was unlawful. Palmer J considered there was nothing in the PVC Act to suggest that the generic reference to “a District Court Judge designated for the purpose” must refer only to permanent District Court Judges.[41] This was consistent with s 47 of the Legislation Act 2019 which provides generally that a power conferred on the holder of an office may be exercised by an acting officer holder. In any event, the decision of the Tribunal would be preserved by the de facto officer doctrine (which validates the acts of a Judge or other officer even though their appointment was invalid due to an unknown flaw) and/or s 61 of the PVC Act (which provides that proceedings before a Tribunal are not invalid for want of form).[42]
[41]At [55], referring to s 58 of the PVC Act.
[42]At [53]–[58].
The Judge did not award costs.
Wrongful death cause of action?
Introduction
On appeal, Mrs Hawkins contends that the Court should recognise a cause of action under the DAC Act or otherwise under the general law when a member of the immediate family of a person dies as the consequence of an intentional tort, for which damages for emotional harm and or bereavement are payable. In considering this submission we start with outlining the accident compensation legislation as it would have applied to Colleen had she lived. We then discuss the DAC Act and whether it provides a statutory basis for Mrs Hawkins’ claim. We then discuss Mrs Hawkins’ claim that, even if the DAC Act does not apply, this Court should recognise a common law wrongful death claim. Lastly under this section, we discuss whether the PVC Act itself confers a cause of action for wrongful death.
Accident compensation legislation
When Colleen died in 1987, the Accident Compensation Act 1982 (the 1982 AC Act) was in force. The 1982 AC Act provided cover to persons who suffered “personal injury by accident”.[43] As presently relevant this was defined as including, among other things:[44]
(a)the “physical and mental consequences of any such injury or of the accident” (mental consequences were covered whether or not there was also physical injury);[45] and
(b)“[a]ctual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission of any other person” which was within the offences specified in ss 128, 132 and 201 of the Crimes Act 1961. Relevantly s 128 covered rape.
[43]Accident Compensation Act 1982 [1982 AC Act], s 2(1) definition of “cover”.
[44]Section 2(1) definition of “personal injury by accident”.
[45]Accident Compensation Corporation v E [1992] 2 NZLR 426 (CA) at 433–434.
Had Colleen survived the rape and violence inflicted on her, she would therefore have had cover under the 1982 AC Act for the physical and mental consequences of the rape (as a specified offence) and for the physical violence which caused her actual bodily harm (arising from the actions of Mr Te Hei and his co‑offender that caused her death) as physical injuries of an accident.[46]
[46]We discuss the meaning of “accident” under the 1982 AC Act later at [77].
Section 27 of the 1982 AC Act provided:
27. Act to be a code—(l) Subject to this section, where any person suffers personal injury by accident in New Zealand or dies as a result of personal injury so suffered, or where any person suffers outside New Zealand personal injury by accident in respect of which he has cover under this Act or dies as a result of personal injury so suffered, no proceedings for damages arising directly or indirectly out of the injury or death shall be brought in any Court in New Zealand independently of this Act, whether by that person or any other person, and whether under any rule of law or any enactment.
…
The 1982 AC Act would therefore have prevented Colleen (had she survived) from bringing proceedings that directly or indirectly arose out of her injuries other than under that Act. It would not have prevented a claim for exemplary damages since their purpose was not to compensate the plaintiff for injury but to punish and deter.[47] However, the common law position at this time was that exemplary damages were not recoverable where the defendant had been convicted criminally for the same conduct.[48]
Deaths by Accidents Compensation Act
[47]Donselaar v Donselaar [1982] 1 NZLR 97 (CA) at 107 per Cooke J, 109 per Richardson J and 115–116 per Somers J. This decision was in respect of the similar provision in s 5 of the Accident Compensation Act 1972 but, as discussed by Tipping J in Couch v Attorney-General (No 2) (on appeal from Hobson v Attorney-General) [2010] NZSC 27, [2010] 3 NZLR 149 at [84]–[88], Parliament had several opportunities to expressly prohibit claims for exemplary damages through the several reforms made to the accident compensation legislation since Donselaar was decided so must be taken to have accepted that decision.
[48]Daniels v Thompson [1998] 3 NZLR 22 (CA) at [47]–[48].
The DAC Act creates a right of action when death is caused by a wrongful act, neglect, or default for specified family members of the victim.
Section 4 creates the statutory cause of action, relevantly providing:
4 Right of action when death is caused by negligence, etc
(1)Where the death of a person is caused by any wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as to amount in law to a crime.
…
Section 5 specifies the persons who are entitled to benefit from a claim:
5 Action to be for benefit of family
Every such action shall be for the benefit of the spouse or civil union partner and the parents and children of the person whose death has been so caused.
The amount of damages is relevantly prescribed by s 7 as follows:
7 Amount of damages
(1) In every such action the court may award—
(a)such damages as it may think proportioned to the injury resulting from the death to the person or persons for whose benefit the action is brought; and
(b)damages in respect of the amount of actual pecuniary benefit which the person or persons for whose benefit the action is brought might reasonably have expected to enjoy if the death had not occurred, whether or not the person or persons have been either wholly or partially dependent upon the deceased person before his death; and
(c)damages in respect of the medical and funeral expenses of the deceased person if the expenses have been incurred by the person or any of the persons by whom or for whose benefit the action is brought.
…
The right of action under s 4 is satisfied. Colleen’s death was caused by a wrongful act of which Mr Te Hei was a participant. Had her death not ensued, she would have had a claim against Mr Te Hei for exemplary damages for his assault and battery. The common law position that exemplary damages were not available because Mr Te Hei was convicted of the conduct is overridden because the section applies “although the death was caused under such circumstances as to amount in law to a crime”. Pursuant to s 5, the action is for the benefit of Colleen’s family, including Mrs Hawkins.
As to the damages that Mrs Hawkins could claim, s 7 has been interpreted narrowly. Its scope was first considered by this Court in McCarthy v Palmer, a case decided in 1957, and so well before the introduction of the accident compensation scheme in New Zealand.[49] The plaintiff claimed that her husband had died as a result of the defendant’s negligence. On behalf of herself and her three children, she said they had suffered injury in two ways. First, they had lost the pecuniary benefit that they might reasonably have expected to enjoy had the husband’s death not occurred. Secondly, they had lost the society, care, guidance, and affection of their husband/father. McGregor J granted the defendant’s application to strike out the second claim and this strike out was upheld by this Court on appeal.[50]
[49]McCarthy v Palmer [1957] NZLR 620 (CA) [McCarthy v Palmer (CA)].
[50]McCarthy v Palmer [1957] NZLR 442 (SC) [McCarthy v Palmer (SC)]; and McCarthy v Palmer (CA), above n 49.
As explained by McGregor J, the origins of the DAC Act were in the Fatal Accidents Act 1846.[51] It provided an exception to the long-standing common law position that no civil action could be brought for causing the death of a human being.[52] It enabled a claim to be brought for the benefit of the wife, husband, parent and child of a deceased when that person would have been able to maintain an action and recover damages against the person who caused their death had they not died. It provided for the jury to award “such Damages as they may think proportioned to the Injury resulting from such Death to the Parties … for whose Benefit such Action shall be brought”.[53]
[51]Fatal Accidents Act 1846 (Imp) 9 & 10 Vict c 93.
[52]As discussed below at [55], this common law position was much criticised.
[53]Fatal Accidents Act, s 2.
As also explained by McGregor J, “[f]rom an early date” it was “authoritatively accepted that the plaintiff must show that he or she had lost a reasonable probability of pecuniary advantage to found a claim” under the 1846 Act.[54] This was also the view adopted in New Zealand when that Act was incorporated into New Zealand law and also when that Act was replaced in 1880 and 1908, and amended in 1937.[55] The issue in McCarthy v Palmer was whether this was altered by the further amendment made in 1952.
[54]McCarthy v Palmer (SC), above n 50, at 443–444.
[55]The 1846 Act was incorporated into New Zealand law by the English Acts Act 1854. It was replaced in 1880 (as the Deaths by Accidents Compensation Act) and again in 1908 in substantially the same terms. As McGregor J discussed, the courts in New Zealand continued to hold that damages were recoverable by members of the family only to the extent of the loss of pecuniary advantage of those on whose behalf the claim was brought: see at 445. Section 7 of the Statutes Amendment Act 1937 expressly confined damages to “the amount of actual pecuniary benefit which the person … for whose the action is brought might reasonably expect to enjoy if the deceased had not been killed”.
McGregor J noted that s 7(1)(a) was in the same terms as the 1908 Act and that s 7(1)(b) was in materially the same terms as the 1937 Act both of which had been held confined to damages for pecuniary losses.[56] The Judge considered that Parliament could not have intended to extend the statutory right of action beyond pecuniary losses by the addition of “and” between subss (a) and (b). He considered if such a vital alteration were intended, clear and unequivocal language would have been used.[57]
[56]McCarthy v Palmer (SC), above n 50, at 446.
[57]At 447.
In a brief judgment, a panel of five judges of this Court upheld McGregor J’s decision. The Court agreed that s 7(1)(a) had received a “time-honoured interpretation which must be assumed to have been well known to the Legislature” from which it was “neither permissible nor desirable to depart”.[58] Damages were limited to compensation “in respect of pecuniary benefits which the claimants might reasonably have expected to enjoy” with “pecuniary benefits” being “used in the wide sense which has long been attributed to those words in this connection”. [59]
[58]McCarthy v Palmer (CA), above n 49, at 620.
[59]At 620. In short, damages are for pecuniary losses.
The issue came back before a panel of five judges nearly 50 years later in Pou v British American Tobacco (New Zealand) Ltd.[60]The claim had begun as one brought by Janice Pou who was dying of lung cancer. She claimed that the tobacco companies had negligently sold their products and that as a result she had contracted lung cancer and was entitled to substantial damages. Mrs Pou had been a heavy smoker since 1968 when she was aged 17 years old and was already addicted to smoking prior to 1974 when the Accident Compensation Act 1972 came into effect. Mrs Pou died from lung cancer after commencing her claim.[61] Her two adult children, as executors, continued the proceeding.[62]
[60]Pou (CA), above n 37.
[61]Pou v British American Tobacco (New Zealand) Ltd HC Auckland CIV-2002-404-1729, 27 August 2004 [Pou (HC)] at [1]–[2].
[62]As provided for in s 3 of the Law Reform Act 1936; see below at [88].
Of more relevance for present purposes, they also made a claim as dependents under the DAC Act for lost pecuniary benefits that they might reasonably have expected to enjoy if their mother had not died. These damages were said to include “the loss of guidance, care and companionship which they could reasonably have expected to receive had their mother continued to live”.[63] The pecuniary losses were said to be the loss of moral support, encouragement and assistance in the upbringing of the child of Mrs Pou’s daughter, moral assistance and encouragement in Mrs Pou’s son’s pursuit of his studies, financial assistance to the children in the form of gratuitous payments of money, and assistance in providing for the exigencies of life such as food and clothing.[64] The tobacco companies applied to strike out the DAC Act claim and were successful in the High Court.[65]
[63]Pou (CA), above n 37, at [29].
[64]At [31].
[65]Pou (HC), above n 61.
On appeal, counsel for the siblings sought to persuade this Court that it should overrule McCarthy v Palmer, arguing that English law took a wrong turn when construing the Fatal Accidents Act 1846 as limited to compensation for pecuniary losses. This Court said that, while that may be so, the approach was well settled when it was incorporated into New Zealand law. It considered that McCarthy v Palmer was correct that, in using the language from the 1846 Act when enacting the 1952 Act, it must have intended that the language would receive the same interpretation as previously.[66] It noted that this was plainly the view of the Attorney-General on the second reading of the Bill which became the 1952 Act.[67] It considered this view was confirmed by the way the law had developed in England and Wales and Australia and was also broadly similar to the position in Canada. Given this history, the Court considered it was not appropriate to change the law.[68]
[66]Pou (CA), above n 37, at [36].
[67]At [36], referring to (18 September 1952) 298 NZPD 1501.
[68]At [34]–[38].
This Court also discussed the kind of loss that qualifies as pecuniary. It included the loss of services that had been gratuitously rendered by the deceased, and recognised the qualitative difference between parental care and replacement care.[69] It also included where a spouse gave up employment to look after children who had previously been looked after by the deceased. It could also include damages where the deceased was in the habit of providing benefits for family members outside the reciprocal ebb and flow of family life, such as a parent who regularly gave children substantial sums of money. Importantly, however, it did not compensate for loss of companionship and society.[70]
[69]At [15]–[18].
[70]At [19]–[23].
In the case before it, in the context of a strike-out application, this Court was not prepared to assume that the alleged foregone pecuniary benefits would have been counteracted by the two siblings reciprocating in favour of their mother, Mrs Pou.[71] It therefore reinstated the claims for assistance in bringing up the child of one of the siblings, financial assistance in the form of gratuitous payments of money, and assistance in the form of provision of exigencies of life such as food and clothing to proceed.[72] It otherwise dismissed the appeal from the High Court decision striking out the claim.
[71]At [47].
[72]At [48].
Mrs Hawkins submits that Pou was a missed opportunity to breathe fresh life into a statutory cause of action that has been rendered largely redundant by the accident compensation legislation. She submits that the DAC Act should have been repealed if it was intended to be restricted to pecuniary loss since dependents would have cover for such loss under the accident compensation legislation. Because the DAC Act has been retained, she submits it should be afforded a wider reach. She says that an ambulatory or dynamic interpretation would construe the word “injury” in s 7(1)(a) of the DAC Act from the vantage point of a reader in 2004 rather than a 1952 legislator. She submits that a contemporary interpretation of injury would undoubtedly incorporate emotional harm, including grief and suffering. She notes that English law now permits damages for bereavement.[73]
[73]This was, however, via a statutory amendment to the Fatal Accidents Act 1976 (UK) made in 1982. See s 1A, inserted by s 3 of the Administration of Justice Act 1982 (UK). Section 1A sets a fixed amount of recoverable damages for bereavement; the current rate is £15,120. See Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (HL) at 409–410. No such amendment has been made here.
Unencumbered by the history to the DAC Act and the cases of this Court that have considered it, we agree that a straightforward reading of “injury” in s 7(1)(a) would encompass mental injury. It may also be that Pou was a missed opportunity to take the approach advocated on behalf of Mrs Hawkins’ estate. However, Pou was decided by a panel of five judges of this court. And it was given at a time when the DAC Act had been rendered largely redundant by the accident compensation scheme and at a time when societal views of emotional harm as a form of personal injury were probably similar to current views.[74] It is not appropriate in these circumstances for this Court of three to overrule Pou by taking an ambulatory interpretative approach when the claimed basis for that approach was likely present when Pou was decided.
Wrongful death common law claim
[74]We were not referred to any material in support of the submission that contemporary views of emotional harm as a form of personal injury had changed.
The primary submission for Mrs Hawkins was that this Court should recognise a new common law wrongful death cause of action for which damages for her grief and suffering (also referred to as moral or bereavement damages) and for exemplary damages would be available. The cause of action would arise when a person dies as a result of an intentional tort. Members of the immediate family of the deceased would have that cause of action against the person responsible for the death.
Mrs Hawkins submits that the principal impediment to the cause of action is the traditional common law position that a person could not claim damages for the injury they suffered when another person died. This position traces back to an 1808 English decision in Baker v Bolton.[75] In that case, a husband and wife were travelling in a stagecoach which overturned, injuring the husband and the wife. The husband survived his injuries but his wife died in hospital around a month after the accident. The husband claimed against the stagecoach operator. Lord Ellenborough instructed the jury that the husband’s claim for loss of his wife’s society and his distress of mind could only be claimed from the time of the accident until his wife’s death. This was because:[76]
In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.
[75]Baker v Bolton (1808) 1 Camp 493, (1808) 170 ER 1033 (KB).
[76]At 493.
It has often been observed that the reasons recorded in Baker v Bolton are short, without reference to — and unsupported by — authority, and based on a misunderstanding of legal history.[77] For present purposes, the following discussion in Fleming’s the Law of Torts provides a useful summary of this:[78]
The decision seems to be the result of a misreading of legal history. It has been linked with the archaic rule that, where the tort constitutes at the same time a felony, no civil action can be maintained until the wrongdoer has been prosecuted. At one time, when every felony was punishable by death and all a felon’s chattels were forfeited to the Crown upon conviction, the result may well have been that in most cases of wrongful death a civil action would in practice have been futile. But later it came to be recognised that the right of action for damages was only suspended, not destroyed; and in any event, this explanation cannot account for the rule in cases where the death was not caused by felonious conduct. It has also been suggested that the action of trespass never dealt with homicide, but there is not authority for this beyond the rules already referred to, that in the interests of justice a felon must first be prosecuted. In all likelihood, the principle in Baker v Bolton must be ascribed to a confusion between the “merger” rule and the unrelated maxim “actio personalis moritur cum persona”, which meant that any cause of action in tort vested in the deceased did not survive for the benefit of his estate. That principle has, of course no relevance in the present context, where the plaintiff and defendant are both still alive and the action is brought for the death of a third party. We are here concerned with the death creating, not extinguishing, a cause of action.
[77]Peter Handford “Lord Campbell and the Fatal Accidents Act” (2013) 129 LQR 420 at 427: “Lord Ellenborough’s statement as reported … could not be briefer. This one-sentence ruling stands alone, with no jurisdiction or elaboration. Over the years it has come in for much criticism from respected commentators.” See for example HR Preston “A Bit of Legal History” (1896) 2 Va L Reg 3; WS Holdsworth “The Origin of the Rule in Baker v. Bolton” (1916) 32 LQR 431; Percy H Winfield “Death as Affecting Liability in Tort” (1929) 29 Colum L Rev 239 at 250; and Wex S Malone “The Genesis of Wrongful Death” (1965) 17 Stan L Rev 1043 at 1058–1062. See also Moragne v States Marine Lines Inc 398 US 375 (1970) at 382–383.
[78]Carolyn Sappideen and Prue Vines (eds) Fleming’s The Law of Torts (11th ed, Thomson Reuters, Sydney, 2024) at [27.110] (footnotes omitted).
Nevertheless, the House of Lords declined to overturn the decision in 1917 as being too longstanding, and again in 1937 on the basis that it was bound by its earlier decision.[79] More recently, the United Kingdom Supreme Court referred to the common law rule, that “in a civil court, the death of a human being could not be complained of as an injury”, as “still the general rule”.[80] As the Court noted, there was a statutory exception introduced by the Fatal Accidents Act 1846 and a further “limited category of cases” arising when a claimant witnessed the wrongful death or injury.[81]
[79]Commissioners for Executing the Office of Lord High Admiral of the United Kingdom v Owners of Steamship Armerika [1917] AC 38 (HL); and Rose v Ford [1937] AC 826 (HL).
[80]Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, [2024] 2 WLR 417 at [2] per Lord Leggatt and Lady Rose JJSC.
[81]At [3]–[4]. We discuss this category of case below at [55] onwards under the heading “Common law claim for psychiatric harm”.
Mrs Hawkins submits that New Zealand courts have the right and responsibility to depart from an English common law principle that was always “bad law” and which does not suit New Zealand conditions. Mrs Hawkins submits that New Zealand’s accident compensation legislation alters the landscape and provides a basis for departing from the entrenched common law position in England. She submits that departing from the principle would likely be consistent with tikanga in that mana continues after death both for the deceased and for the collective whānau, hapū or iwi.[82]
[82]Referring to Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [129]. See also at [132]–[134].
Mrs Hawkins notes that Scots law since ancient times has allowed close relatives of a person who dies as a consequence of a tort to claim for solatium (for pain and suffering), loss of society or loss of support arising from the death and this is now codified in statute.[83] She also refers to a decision of the Supreme Court of Canada which upheld a mother’s right under Quebec and French civil law to claim solatium doloris (moral damages) for the wrongful death of her child.[84]
[83]Discussed in Paul v Royal Wolverhampton NHS Trust, above n 80, at [252] per Lord Carloway; and Damages (Scotland) Act 2011, s 4.
[84]Augustus v Gosset [1996] 3 SCR 268.
Mrs Hawkins submits the cause of action would be complementary to the accident compensation regime. This is because the Accident Compensation Act 2001 (the 2001 AC Act) does not cover mental injury in its own right, which means that the statutory bar that precludes proceedings for compensation for personal injury would not usually operate in such cases.[85] She acknowledges that proceedings for compensation for emotional harm arising from death might be precluded by the 1982 AC Act (which applied when Colleen died) but submits that damages for solace for grief and damage are moral damages more akin to a social injury than a personal one. She also submits it would be complementary to a reparation order for emotional harm in the criminal jurisdiction.
[85]Queenstown Lakes District Council v Palmer [1999] 1 NZLR 550 at 557.
We tend to agree with that last point. Reparation is intended to circumvent the need for a civil proceeding but it does not supplant the right to bring a civil proceeding for harm, loss or damage in excess of any reparation order made.[86] For a range of reasons, a reparation order is not always made against a defendant who causes emotional harm to the victim(s) of their offending. In Mrs Hawkins’ case, she did not receive reparation when Mr Te Hei was sentenced for the rape and murder of Colleen. When reparation is not ordered to someone in Mrs Hawkins’ position, a civil cause of action that enables a victim to recover a sum for their grief and suffering would provide some symmetry with victims of offending who do receive such an order.
[86]Law Commission Compensating Crime Victims (NZLC R121, 2010) at [2.10]; and Sentencing Act 2002, s 38(2).
We discuss the implications of the accident compensation legislation for Mrs Hawkins in relation to the submission that she may have a common law claim for psychiatric harm discussed below. We consider that the proposed wrongful death common law claim could sit uneasily alongside that recognised common law claim given the limits on such a claim and the current position in this country that it requires a recognised psychiatric illness. We do not dwell on this point because we consider it would not be appropriate to recognise a common law wrongful death cause of action for the reason we now turn to.
In our view Baker v Bolton, which is accepted as being wrong at the time it was decided, is not the principal impediment to a common law wrongful death cause of action. Rather, we consider the principal impediment is the legislative response to that decision in the form of what is now the DAC Act. As discussed above, this Court in Pou considered that McCarthy v Palmer was correct that, in using the language from the 1846 Act when enacting the 1952 Act, Parliament must have intended that the language would receive the same interpretation as previously and that it would not be appropriate to change the law. If we were to recognise a common law claim for grief and suffering for family members of a person killed by an intentional tort, it would operate in the same area as the DAC Act, sitting parallel with, but undercutting, the legislative policy of the Act.[87] We do not consider it is open to us to recognise such a claim in such circumstances.
[87]See Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [97].
Rather, we consider that it is for Parliament to amend the DAC Act, as has occurred in the United Kingdom with the comparable legislation, to allow relatives to claim bereavement damages for wrongful death in addition to damages for pecuniary loss.[88] While it is of course a matter for Parliament, it would overcome the arguably narrow interpretation of the DAC Act in McCarthy v Palmer and in Pou, and be consistent with the rationale for the PVC Act and the simple and accessible procedure intended under that Act. There may, however, be objections to such a course.[89]
Wrongful death claim under PVC Act directly
[88]See Fatal Accidents Act (UK), s 1A.
[89]See for example Western Australia Law Reform Commission Final Report: Claims for Non‑Economic Loss for Wrongful Death under the Fatal Accidents Act 1959 (WA) (WALRC, Project 109, 2020) at 17–18; and see Prisoners’ and Victims’ Claims Bill 2004 (241-2) (select committee report) at 3.
Mrs Hawkins submits that a claim for non-pecuniary damages could be imported into the PVC Act. This submission rests on the definition of “offence” under that Act which, “in relation to a victim”, includes an offence “through which, or by means of which, the victim … suffered … emotional harm”.[90] The submission is that the PVC Act allows “injury” under s 7(1)(a) of the DAC Act to be read as including “emotional harm”. This would align the PVC Act with reparation orders under the Sentencing Act from where the definition of “victim” was imported.[91] It would also align with the scheme of the PVC Act which was intended to provide a simple and accessible claims process.
[90]PVC Act, s 4 definition of “offence”.
[91]Sentencing Act, s 4(1) definition of “victim”.
We acknowledge that, as the PVC Act was enacted after Pou, this was not an argument considered by the Court. We also acknowledge that a claim under the PVC Act would be much more straightforward if a person who qualifies under the Sentencing Act for reparation also qualified for a claim under the PVC Act. We also note that this appears to have been the approach of the Tribunal.
We are not, however, persuaded that it is open to us to take this course. That is because the PVC Act is intended to facilitate a victim who has a “cause of action” for “damages” against a prisoner under the “general law”.[92] There is nothing in those words that indicate an intention to alter the interpretation of s 7(1)(a) of the DAC Act to cover emotional harm. If it was intended that claims under the DAC Act could cover claims for emotional harm if made through the PVC Act, we consider this would have been stated in clear terms.
[92]PVC Act, ss 46(2)(c) and 47(1).
As we have discussed above, there is some symmetry in the idea that a person who qualifies as a victim in whose favour a reparation order may be made under the Sentencing Act should also qualify as a victim for the purposes of obtaining an award of damages under the PVC Act.[93] Reparation may be imposed by the sentencing court where a person has suffered loss, damage or emotional harm through or by means of an offence.[94] Causation is approached in a broad common sense way in light of the compensatory purpose of reparation.[95] The procedure under the Sentencing Act by which information for the purposes of a potential reparation order can be obtained would also fit with the intended simple and accessible procedure for victims of a prisoner’s offence to claim against any compensation paid to the prisoner under the PVC Act.[96]
[93]At [60] above.
[94]Sentencing Act, s 32(1).
[95]Rebecca Atkins (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SA32.02].
[96]Sentencing Act, s 33.
It would have been possible for the legislature to have provided that a person who qualified as a victim for the purposes of reparation for emotional harm under the Sentencing Act qualified under the PVC Act for a damages award. Instead, however, the PVC Act requires a “cause of action” for “damages” under the “general law”. We consider that a sentencing court’s jurisdiction to consider a sentence of reparation in favour of a victim cannot be equated with a “cause of action” for “damages” as those terms are used in the PVC Act. Rather, if it was intended to encompass those who would qualify as a victim for the purposes of an emotional harm reparation under the Sentencing Act, we consider this would have been stated in clear terms. Qualifying as a victim in whose favour reparation for emotional harm may be ordered does not equate to having a “cause of action” for “damages”.
Conclusion on wrongful death cause of action
In short, we conclude that Mrs Hawkins does not have a claim for her emotional harm or mental injury under the DAC Act or under a common law wrongful death claim and the PVC Act did not amend the DAC Act to enable Mrs Hawkins to make such a claim. Nor can the PVC Act be interpreted to allow an award for damages to Mrs Hawkins for emotional harm simply because she would have qualified as a victim for the purposes of a potential reparation order under the Sentencing Act.
Common law claim for psychiatric harm
Introduction
At common law a cause of action for negligently causing mental injury to a person consequent on the death or injury of another person is potentially available if the recovery of damages is not barred by the 2001 AC Act. The leading case in New Zealand is this Court’s decision in van Soest v Residual Health Management Unit which held that a recognisable psychiatric illness must be found for there to be recovery.[97]
[97]van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).
This was not considered by the Tribunal. There was some discussion of the cause of action in the High Court but Mrs Hawkins submits that the Judge misunderstood the submission and did not therefore consider referring the matter back to the Tribunal for consideration of whether she had suffered psychiatric harm. She submits we should do so.
We note that the Ministry of Justice claim form for an award of money under the PVC Act explains that a claim requires a “a cause of action for which damages in the particular case are payable” under “the general law”. Consistent with what is intended to be a simple and accessible procedure, the form does not ask the victim to specify their cause of action. In completing the form, Mrs Hawkins’ form did not need to specify the cause of action she relied upon and she did not do so. The claim before the Tribunal was determined on the papers, and on the Judge’s approach in the Tribunal there was no need for him to identify one.
We consider that greater latitude should be given for raising grounds for an award not considered by the Tribunal than if this were a jurisdiction requiring the formalities of pleadings. We therefore consider it was open to Mrs Hawkins’ counsel to raise the possibility of a common law claim for psychiatric harm on appeal to the High Court and this Court as providing a potential basis for the award.
However, because this cause of action was not considered by the Tribunal in making an award in Mrs Hawkins’ favour, nor by the High Court, and because we received limited argument about this in this Court, we consider that only a preliminary review of it is appropriate at this point to ascertain whether the issue should be referred back to the Tribunal. Our preliminary assessment first considers the potential implications of the accident compensation scheme on such a claim before turning to whether Mrs Hawkins may have had such a claim and whether any such claim is now available for the benefit of her estate.
Accident compensation legislation
As noted earlier, when Colleen died the 1982 AC Act was in force. The submissions for Mrs Hawkins assume that she would have had cover under that 1982 AC Act. They proceed on the basis that she would not have been able to recover compensatory damages in a civil proceeding because of the bar on proceedings for those covered by the 1982 AC Act, but that exemplary damages would be available.
All persons who suffered personal injury by accident in New Zealand had cover under that Act.[98] The Act provided a non-exhaustive definition of “personal injury by accident” (as relevant, set out above).[99] The term was to be construed “in accordance with the ordinary and natural meaning of the words” in the statutory context and having regard to the statutory purpose and scheme.[100]
[98]1982 AC Act, s 26(2).
[99]Above at [32].
[100]Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA) at 438.
Mrs Hawkins may have had cover in her own right if she suffered a “personal injury by accident”. As this Court explained in Mitchell, this does not require that the injury be caused by “an accident” but merely that the injury be accidental; an “unlooked-for mishap or an untoward event which is not expected or designed”.[101] Under the 1982 AC Act, unlike later Acts, there was no requirement for there to be physical injury in order for a person to be covered for mental injury. This Court in Accident Compensation Corporation v E held that “mental consequences of the accident are included within the term personal injury whether or not there is also physical injury”.[102]
[101]At 438 citing Fenton (Pauper) v Thorley & Co Ltd [1903] AC 443 (HL) at 448.
[102]Accident Compensation Corporation v E, above n 45, at 433.
Whether Mrs Hawkins had cover under the 1982 AC Act would depend on the level of mental harm Mrs Hawkins suffered, and when she suffered it. The precise level of mental harm required before a person could establish personal injury by accident under the 1982 AC Act is unclear.[103] In the absence of submissions, and because the submissions for Mrs Hawkins assume that she would have had cover under that Act, we do not express any view on this. Section 27 of 1982 AC Act, set out earlier,[104] would have prevented her from bringing a common law claim to recover compensatory damages for her mental injury. Had she sought to bring a common law claim while the 1982 AC Act was in force, exemplary damages would not have been recoverable either because the defendant had been convicted criminally for the same conduct.[105]
[103]At 434; and Cochrane v Accident Compensation Corporation [1994] NZAR 6 (HC); compare with van Soest v Residual Health Management Unit, above n 97, at [24].
[104]Above at [34].
[105]See above at [35].
However, the 1982 Act was replaced with the Accident Rehabilitation and Compensation Insurance Act 1992, and later the Accident Insurance Act 1998 and then the 2001 AC Act. None of those Acts provided cover for mental injury in Mrs Hawkins’ circumstances. As s 27 did not extinguish a cause of action (it only prevented proceedings from being brought for the recovery of compensatory damages), any common law cause of action Mrs Hawkins had for compensatory or exemplary damages survived after the repeal of the 1982 AC Act.[106]
[106]Donselaar v Donselaar, above n 47, at 109 and 116; Couch v Attorney-General, above n 47, at [89] per Tipping J and [199]–[203] per McGrath J; and McGougan v DePuy International Ltd [2018] NZCA 91, [2018] 2 NZLR 916 at [29].
By the time Mrs Hawkins made her claim under the PVC Act in 2020, the 2001 AC Act had come into force. Like its predecessors, it also prevents proceedings from being brought as follows:
317 Proceedings for personal injury
(1)No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—
(a)personal injury covered by this Act; or
(b) personal injury covered by the former Acts.
…
As was made clear in s 317(7), this prohibition on bringing proceedings applies even if a person has not made a claim for cover under a former Act. However, the 2001 AC Act expressly provides that claims for exemplary damages remain available and further provides that they are recoverable even if a defendant has been convicted of an offence for the same conduct:
319 Exemplary damages
(1)Nothing in this Act, and no rule of law, prevents any person from bringing proceedings in any court in New Zealand for exemplary damages for conduct by the defendant that has resulted in—
(a) personal injury covered by this Act; or
(b) personal injury covered by the former Acts.
(2)The court may make an award of exemplary damages for conduct of the kind described in subsection (1) even though—
(a)the defendant has been charged with, and acquitted or convicted of, an offence involving the conduct concerned in the claim for exemplary damages; …
…
It appears that this may be why the submissions for Mrs Hawkins assume that she would have had a claim for exemplary damages for the purposes of the PVC Act, which requires that she have “a cause of action that is, under the general law, one for which damages are, in the particular case, payable”.[107] For the purposes of considering whether Mrs Hawkins had a common law cause of action for psychiatric harm, we will proceed on the basis taken in the submissions for Mrs Hawkins, that compensatory damages would not be available but exemplary damages would be.
Common law cause of action
[107]PVC Act, s 46(2).
The traditional name for this cause of action was a claim for “nervous shock”. This referred to mental injury caused to a person from the shock of being put in fear of injury or in fear or knowledge of injury to another person. The Law Reform Act 1944 expressly recognises the cause of action.[108]
[108]Section 2 of the Law Reform Act 1944 provides that a party “shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock” when claiming in tort or otherwise.
As this cause of action has developed in England and Wales, Australia and Canada, the precise requirements have varied between the jurisdictions and over time. For example, whether the plaintiff must have suffered a recognisable or recognised psychiatric illness, whether the plaintiff must be one who had close ties of love and affection with the victim injured or killed, whether the plaintiff must have had physical and temporal proximity to the injury or death or its aftermath, whether the plaintiff was required to have seen the accident with their own (unaided) senses, and whether a sudden shock and single event were necessary.
As noted above, in van Soest v Residual Health Management Unit a majority of this Court determined that it was a necessary requirement that the plaintiff suffered from a recognisable psychiatric disorder or illness as a result of the victim’s injury or death.[109] As the plaintiff did not meet this requirement, the claim was struck out on this basis with the Court reserving its position on whether it was also a necessary requirement that the mental injury be consequential on a shocking incident and on the physical and temporary proximity requirements.[110] However the Court did note that “[i]t may well be” that the restrictions based on physical and temporal proximity to the accident or misadventure should be removed. It said the claim was not being struck out “for want of physical proximity to the [event that caused the mental distress] and its aftermath”.[111]
[109]Above at [70].
[110]van Soest v Residual Health Management Unit, above n 97, at [73]–[74]. The claim was not a strong one on the facts on the traditional approach to such claims. It involved a claim of negligence by the next of kin of the deceased who died following surgery. The plaintiffs were not present at the hospital during or immediately following the operation on their family member by an employee of the hospital. Even if the plaintiffs had suffered a recognisable psychiatric illness or disorder, the claim would have failed under the current approach in the United Kingdom, which has restored the cause of action to its traditional formulation of witnessing a negligently caused accident: Paul v Royal Wolverhampton NHS Trust, above n 80.
[111]van Soest v Residual Health Management Unit, above n 97, at [74].
The requirement for a recognisable psychiatric injury was applied in the subsequent decision of this Court in Hobson v Attorney-General.[112] As the plaintiff claimed damages only for “pain and suffering”, arising from his wife’s murder during an aggravated robbery, his claim was struck out. One member of the court, William Young P, also expressed the view that the claim could not succeed because the plaintiff was neither present at the time of the crime nor did he arrive at the scene soon afterwards.[113] The other members of the Court did not directly address this issue.
[112]Hobson v Attorney-General [2007] 1 NZLR 374 (CA).
[113]At [141].
The limits of a claim of this kind are not for determination at this juncture. All that can be said is that it is possible that Mrs Hawkins could establish a claim of this kind, depending on whether she is able to show that she suffered a recognisable psychiatric illness,[114] or the law on this requirement is revisited, and depending on whether there is a requirement to witness the event or its aftermath.[115] Such a claim would also need to meet the threshold for an exemplary damages award as compensatory damages are not available if Mrs Hawkins’ mental injury was covered by the 1982 AC Act. We note that Judge Blackie decided not to award exemplary damages.[116] This does not preclude revisiting whether such an award is available given the incorrect basis on which the Judge made an award for emotional harm.
Exemplary damages
[114]Her claim form stated that “[c]ounselling confirmed it has caused depressive disorder symptoms and suicidal thoughts” and that she “locked herself and her children away for years”.
[115]See for example the comments in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [4.7.4].
[116]Tribunal decision, above n 1, at [24].
Section 3 of the Law Reform Act 1936 provides for the survival of causes of action after death in these terms:
3Effect of death on certain causes of action
(1)Subject to the provisions of this Part, on the death of any person after the passing of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of his estate:
provided that this subsection shall not apply to causes of action for defamation or for inducing one spouse to leave or remain apart from the other.(2)Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—
(a) shall not include any exemplary damages:
(b) [Repealed]
(c)where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included:
(d)shall not include any damages for the loss of earnings of the person relating to the period when, but for the death of the person, he or she would have been likely to receive earnings from his or her employment or other occupation.
(3)No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this Part has survived against the estate of a deceased person, unless either—
(a)proceedings against him in respect of that cause of action were pending at the date of his death; or
…
Section 3(2)(a) gives rise to the issue of whether Ms Peka, in continuing the claim on behalf of Mrs Hawkins’ estate, is precluded from pursuing a claim for exemplary damages. In Re Chase this Court explained that the reason for s 3(2)(a) was because the intention was to limit damages to the loss to the estate and exemplary damages (with their purpose of punishing the defendant) do not represent a loss to the estate.[117] Re Chase would stand in the way of Colleen’s estate recovering exemplary damages but would not have stood in the way of Mrs Hawkins claiming exemplary damages for the mental injury she personally suffered as a result of the circumstances of Colleen’s death. As Mrs Hawkins has since died, the issue is whether s 3(2)(a) now prevents such a claim on behalf of her estate.
[117]Re Chase [1989] 1 NZLR 325 (CA) at 331. The Court rejected a submission that “exemplary damages” in s 3(2) of the Law Reform Act 1936 was directed to aggravated damages which were personal to the deceased. We were told that Mrs Hawkins intends to seek to revisit Re Chase if this judgment were to be appealed to the Supreme Court.
There appears to be a strong an argument that s 3 does not apply at all because that section is directed to death of a person entitled to sue but who has not commenced an action, or who has died after commencing an action but before a judgment is delivered.[118] At common law, where judgment is obtained, the cause of action upon which the judgment is based is merged in the judgment and the issue on appeal is not the original cause of action but rather the legality and validity of the judgment, and this survives even if the original cause of action does not.[119] We have not had submissions about this but at this point we would not dismiss Mrs Hawkins’ appeal on this basis.
Should the claim be referred back to the Tribunal for reconsideration
[118]At 330–331 referring to Law Revision Committee Interim Report (Cmd 4540, 1934) which led to the legislation in 1936.
[119]Cases discussing this include Hagaman v Little [2017] NZCA 447, [2018] 2 NZLR 140; Ryan v Davies Brothers Ltd (1921) 29 CLR 527; Lee v Lew [1925] AC 819 (PC); Pickett (Administratrix of the Estate of Ralph Henry Pickett) v British Rail Engineering Ltd [1980] AC 136 (HL); Gammell v Wilson [1982] AC 27 (HL) at 63 and Canada (Attorney General) v Hislop [2007] 1 SCR 429 at [75].
We have concluded that Mrs Hawkins does not have a statutory claim under the DAC Act for her emotional injury.[120] Nor is there a wrongful death claim at common law and the PVC Act does not provide a standalone basis for her claim.
[120]It was not suggested that her claim could be reformulated as one for lost pecuniary benefits as a result of her daughter’s death.
We have also concluded that Mrs Hawkins may have a common law claim for her mental injury arising from the circumstances of the rape and death of her daughter Colleen. If she does, it appears that such a claim would be confined to exemplary damages. In the absence of full submissions on the issue and because the Tribunal and the High Court did not consider the claim, we consider it is appropriate that her claim be referred back to the Tribunal for reconsideration in light of this judgment.
The procedure adopted by the Tribunal on any such reconsideration will of course be a matter for it. It may, however, be a situation where further evidence might be sought and written submissions called for and this may be an appropriate case for an oral hearing given the complexities of the law involved.
Other issues
Mr Te Hei’s cross-appeal and his submissions refer to a number of matters that he says this Court should address. We can deal with each of them briefly.
First, Mr Te Hei submits the Tribunal wrongly accepted further evidence and submissions and wrongly included in its decision statements concerning his connections to the Mongrel Mob. His concern is that the Tribunal relied on Parole Board decisions in stating that he “was a member of the Mongrel Mob” at the relevant time without also acknowledging that the decisions also record his ultimately successful efforts during his very long period of imprisonment to dissociate himself from the Mongrel Mob to the satisfaction of the Board. This is not a proper ground for a cross-appeal. The Tribunal’s decision correctly recorded his association with the Mongrel Mob at the relevant time and its relevance to Mrs Hawkins claim that ongoing harassment from other members of the Mongrel Mob contributed to her living a reclusive life.
Secondly, Mr Te Hei raises concerns that in three of the last four years the Tribunal jurisdiction has been exercised by only acting Judges. Mr Te Hei accepts that, if the jurisdiction was required to be exercised by permanent District Court Judges (the High Court found otherwise), the Tribunal’s decision was saved by “the de facto doctrine” (as the High Court found).[121] He nevertheless says the Court may wish to consider whether it is a concern given the widespread practice of acting Judges exercising the jurisdiction. We decline the invitation. We agree with the High Court that the PVC Act, which refers only to “a District Court Judge designated for the purpose” does not preclude acting Judges from exercising the jurisdiction.[122]
[121]High Court judgment, above n 2, at [57]–[58].
[122]At [55].
Thirdly, Mr Te Hei appeals the High Court’s refusal to award costs in his favour. Mrs Hawkins was legally aided but he submits there were exceptional circumstances for a costs order because, absent a costs order, the already limited compensation he received for his ill-treatment in prison will be eroded.[123] We are not satisfied the circumstances are exceptional. The PVC Act permits claims to be made against compensation obtained by a prisoner and that is what Mrs Hawkins sought. There is no suggestion her claim was brought irresponsibly or that she caused unnecessary cost in her pursuit of the claim. In any event, any such costs order would be set aside in light of the outcome on this appeal.
[123]Referring to the Legal Services Act 2011, ss 45 and 46.
Fourthly, Mr Te Hei says the Tribunal erroneously referred to the provisions of the Limitation Act 2010 in concluding that Mrs Hawkins’ claim was brought in time. However, the correct position is that the relevant limitation periods were under the DAC Act or the Limitation Act 1950. He accepts, however, that had the point been raised, an application for leave to bring the claim would have been successful. We note the point for the Tribunal in case it is of relevance on any reconsideration of Mrs Hawkins’ claim.
Lastly, Mr Te Hei submits that the Tribunal has not taken steps to publish any of its decisions despite the High Court holding that its decisions should be publicly released. We agree with the High Court on this point, as the way in which the Tribunal’s jurisdiction is exercised is a matter of public interest and open justice requires there be transparency about that. However, this is not a ground for a cross‑appeal.
Result
The appeal is allowed. Mrs Hawkins’ claim is referred back to the Tribunal for reconsideration in light of this judgment.
The cross-appeal is dismissed.
We make no order for costs.
Solicitors:
Ord Legal, Wellington, for Respondent
Wilson Harle, Auckland, for Intervener
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