Sheeran v Masterton District Council

[2025] NZHC 707

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2024-435-19

[2025] NZHC 707

UNDER

the Contributory Negligence Act 1947

BETWEEN

LEON SHEERAN

Plaintiff

AND

MASTERTON DISTRICT COUNCIL

Defendant

Hearing:

17 March 2025

Appearances:

Plaintiff In Person

N Chapman and L Goodwin for Defendant

Judgment:

31 March 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

Introduction

[1]    The plaintiff in this proceeding, Mr Leon Sheeran, has brought a claim against the Masterton District Council (the Council) in relation to an injury he suffered to his tailbone when he fell off a council-owned swing in 2019. In the application before me, the Council applies for an order dismissing the claim for lack of jurisdiction or to have it struck out.

Background and Procedural History

[2]    Mr Sheeran contends that, whilst he was on a swing at Margaret Street Reserve in Masterton on 7 December 2019, the chain snapped. He claims that the resulting injury was dorsal subluxation of his coccyx, which he submits has had a significant impact on his ability to work as a truck driver and produced related mental health

SHEERAN v MASTERTON DISTRICT COUNCIL [2025] NZHC 707 [31 March 2025]

challenges. I understand from the plaintiff’s medical records put before the Court that his injury was covered by the accident compensation scheme.

[3]    In respect of that incident, Mr Sheeran filed a notice of proceeding and statement of claim detailing causes of action purportedly under the Contributory Negligence Act 1947 on 6 August 2024. The statement of claim also alleges breaches of duties owed under the Local Government Act 2002. His original statement of claim sought $1,750,000 in compensation for future lost earnings. He also sought costs.

[4]    Following correspondence between the parties, the Council filed an appearance under protest to jurisdiction as per r. 5.49 of the High Court Rules 2016 (HCR) on 24 September 2024. The Council contended the claim was for compensation for personal injury and therefore barred by s 317 of the Accident Compensation Act 2001 (the Act). On 4 October 2024, the Council then filed an application seeking that either the plaintiff’s claim be dismissed for lack of jurisdiction or struck out. Additionally, the Council sought costs. Mr Sheeran opposed these applications.

[5]    In  my  minute  of  4  December  2024  (the  December  Minute),  I   noted  Mr Sheeran’s indication in his submissions that he intended to pursue a claim for exemplary damages under s 319 of the Act.1 I indicated my view that Mr Sheeran, as a self-represented litigant, should be given the opportunity to amend his statement of claim accordingly.2

[6]    Mr Sheeran has filed an amended statement of claim dated 31 January 2025. The claim is still stated to be under the Contributory Negligence Act. The amended claim continues to allege negligent breach of various provisions of the Local Government Act3 by failing to adequately maintain the swings in the reserve to an acceptable standard causing damage to Mr Sheeran. He claims loss of future earnings and damages for pain and suffering  due  to  “damage  to  my  mental  wellbeing”. Mr Sheeran now seeks damages in the total sum of $2,420,000. Mr Sheeran does not

1      Sheeran v Masterton District Council HC Masterton CIV-2024-435-19, 4 December 2024.

2 At [2].

3      Local Government Act 2002, ss 10–12 and 14.

plead a claim for exemplary damages pursuant to s 319 of the Act.    However,     Mr Sheeran filed written submissions on 12 March 2025 which refer to s 319(1) of the Act. His submissions also refer to s 27 of the Bill of Rights Act 1990 (BORA) together with the Contributory Negligence Act as the basis for his opposition to the Council’s strike out application.

[7]    I understand Mr Sheeran is now contending that statutory breaches by the Council (presumably breaches of the provisions of the Local Government Act pleaded in the amended statement of claim) have led to breaches of his rights under BORA. He notes that he has brought his claim in the manner advanced because of s 27(1) of BORA, which provides:

27       Right to justice

(1)Every person has the right  to the observance of the principles of   natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[8]    Mr Sheeran also submits that “damage”, for the purposes of the Contributory Negligence Act, is defined to include “loss of life and personal injury”.4 He emphasises that the Contributory Negligence Act applies to negligence, breaches of statutory duty, or other acts or omissions which give rise to a liability in tort.5

[9]    Mr Sheeran cites s 319(1) of the Act, which relates to exemplary damages and provides as follows:6

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.

4      Contributory Negligence Act 1947, s 2.

5      Section 2, definition of ‘fault’.

6      Accident Compensation Act 2001, s 319(1).

Legal Principles

Dismissal of claim for lack of jurisdiction

[10]Rule 5.49(6) of the HCR provides:

5.49     Appearance and objection to jurisdiction

…

(6)The court hearing an application under subclause (3) or (5) must,—

(a)if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; and

(b)if it does not dismiss the proceeding under paragraph (a), set aside the appearance.

[11]   It is appropriate for a defendant to apply under r. 5.49 where the court’s jurisdiction is precluded by statute, however the onus is always on the defendant to establish that the court does not have jurisdiction.7

[12]   In this case, the Council cites s 317(1) of the Act as the statutory bar to      Mr Sheeran’s claim for compensatory damages. Section 317(1) provides 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.

Strike out

[13]   With regard to the Council’s application for strike out, r. 15.1 of the HCR relevantly provides:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

7      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR5.49.06(1)], [HR5.49.14] [McGechan].

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

…

[14]   The principles pertaining to this provision are well-established. The principles were summarised by the Court of Appeal in Attorney-General v Prince, which has been most recently endorsed by the Supreme Court in Smith v Fonterra Co-operative Group Ltd:8

[38] We [address each cause of action] through the lens of well-established strike out principles. That is to say, we assume the pleaded material facts are true save for those that are entirely speculative and without foundation and we also bear in mind that the strike out jurisdiction is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law. The fact a claim involves a complex question of law which requires extensive argument should be no bar provided we have the requisite materials and assistance to determine the matter. We must also be mindful of the well-established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.

[15]   As the Supreme Court in Smith v Fonterra emphasised, a measured approach is appropriate. The Court held that:9

[84]      Such an approach is consistent with fully informed access to civil justice by those who have a tenable case that they have been harmed and who will otherwise go without remedy based on a pre-emptive evaluation only. And as was observed in Couch, a refusal to strike out a cause of action “says little about its eventual merit”. That is to say, it is not a commentary on whether or not the claim will ultimately succeed.

[85]      Pre-emptive elimination is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail.

[16]   If the dispute is essentially a clearcut legal question, striking out is likely to be the appropriate course of action.10

8      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at [38] as cited in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 [Smith v Fonterra] at [74]–[75]. See also Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.

9      Smith v Fonterra, above n 8, at [84]–[85] citing Couch v Attorney-General, above n 8, at [37] per Elias CJ and Anderson J (footnotes omitted).

10 Body Corporate No 207624 v North Shore City Council [2012] NZSC 83, [2013] 2 NZLR 297 at

[4] as cited in McGechan, above n 7, at [HR12.2.07].

Analysis

[17]I consider that there are two issues for me to determine:

(a)whether I have jurisdiction to hear and determine this proceeding; and

(b)if Mr Sheeran were to amend his statement of claim to seek exemplary damages pursuant to s 319 of the Act, whether he has a reasonably arguable claim.

Should Mr Sheeran’s claim be dismissed for lack of jurisdiction under r. 5.49(6)?

[18]   The Council contends that the s 317(1) bar applies irrespective of how the claim is characterised: if the claim for damages has arisen directly or indirectly from a personal injury, it is barred. Mr Chapman, for the Council, cites Wilding v Attorney-General on this point, which concerned bites by a police dog resulting in Mr Wilding suffering physical injuries and post-traumatic stress disorder (PTSD).11 In that case, the Court of Appeal found that the claim was barred by the then-equivalent of s 317(1) despite being framed in terms of BORA breaches.12

[19]   Similarly, in Roper v Taylor (which concerned a claim for compensatory damages for false imprisonment) damages were barred by s 317(1) because the compensation really sought was for the resulting personal injury, PTSD.13 The Supreme Court emphasised:14

[59]  The focus of s 317 is on the personal injury rather than its cause.   If  Ms Taylor had cover in relation to her PTSD, s 317 excludes any claim based on other tortious conduct for compensatory damages in relation to that PTSD.

…

[67] …The way in which the bar of common law claims  has  been  expressed means that where there is cover, there is no parallel right to seek damages in relation to the same injury.

11     Wilding v Attorney-General [2003] 3 NZLR 787 (CA).

12 At [11].

13     Roper v Taylor [2023] NZSC 49, [2023] 1 NZLR 1.

14     At [59] and [67].

[20]   On this basis, the Council  contends that Mr Sheeran’s  claim is  barred  by    s 317(1), as it arises from the personal injury he suffered in falling from the swing. The Council makes the following key points:

(a)Despite Mr Sheeran’s framing of his claim, the damages sought are quantified by reference to his personal injury, the future income he says he has lost as a result, and damage to his mental wellbeing.

(b)Mr Sheeran’s submission that the Act cannot bar claims under the Local Government Act 2002 and Contributory Negligence Act is inconsistent with the wording of s 317(1). Section 317(1) provides that “no person may bring proceedings independently of this Act, whether under any rule of law or any enactment”. The purpose of the Act is clear in replacing the need for claims for damages for personal injury.

(c)Mr Sheeran’s original pleadings refer to the exception in s 317(5) of the Act, which applies in limited circumstances involving the movement of passengers on transport.15 It is therefore not engaged in this case.

(d)The Contributory Negligence Act does not provide an alternative avenue for Mr Sheeran to seek compensation. Instead, it enables a defendant to argue that a claimant should not be entitled to full recovery of damages claimed because they were partly responsible for the harm suffered.16 In this way, it reduces damages based on contributory fault.

(e)This proceeding does not raise any novel or uncertain questions of law that could otherwise suggest Mr Sheeran’s claim should be allowed to proceed.

15 Accident Compensation Act 2001, s 317(5) provides “Subsection (1) does not prevent any person bringing proceedings in any court in New Zealand for damages for personal injury of the kinds described in subsection (1), suffered in New Zealand or elsewhere, if the cause of action is the defendant’s liability for damages under the law of New Zealand under any international convention relating to the carriage of passengers.”

16 Contributory Negligence Act 1947, s 3.

[21]   I consider Mr Sheeran’s amended claim is barred by s 317 of the Act. As held in Roper v Taylor, the effect of s 317 is that the plaintiff “may not bring a claim for damages arising directly or indirectly from personal injury that is covered under the 2001 ACC Act or the former Acts”.17 This is because s 317 is concerned with personal injury, rather than its cause.18

[22]   On the pleaded case before me, Mr Sheeran’s personal injury is the subject matter of the claim. I accept the submission of Mr Chapman that Mr Sheeran has sought compensation, quantified in terms of lost earnings and damages for pain and suffering, that arises directly or indirectly from the personal injury. I consider this clearly triggers s 317(1).

[23]   I do not accept Mr Sheeran’s submission that the Act cannot bar claims under the Local Government Act 2002. Section 317(1) clearly provides that proceedings may not be brought independently of the Act “whether under any rule of law or any enactment”.   I also do not consider that the Contributory Negligence Act assists    Mr Sheeran’s claim. As noted by Mr Chapman, the Contributory Negligence Act does not provide an alternative avenue for Mr Sheeran to seek compensation, but rather enables a defendant to argue for a reduction in damages based on contributory fault by the plaintiff.

Exemplary damages – s 319 of the Act

[24]   Exemplary damages are awarded to punish a defendant.19 Mr Sheeran would need to be able to establish that he has a reasonably arguable cause of action that the Council “consciously appreciated the risk the conduct in question posed to the safety of the plaintiff and proceeded deliberately and outrageously to run that risk and thereby caused the harm suffered by the plaintiff”.20 The inquiry is on the state of the defendant’s mind.21

17     Roper v Taylor, above n 13, at [58].

18 At [59].

19     Stephen Todd and others, Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [24.3.3(1)] [Todd on Torts].

20     Couch v Attorney-General (No 2), above n 8, at [110]. See also [117] and [178]–[179].

21 At [150].

[25]As stated in Todd on Torts:22

A plaintiff may recover exemplary damages only in respect of a wrong done to that person, and all the elements of a cause of action against the defendant must be made out. So where the cause of action relied on by the plaintiff is not actionable per se and requires proof of actual damage, this element must be satisfied. The court’s discretion to award exemplary damages is not “freestanding” in the sense it can be exercised whenever the court considers conduct “outrageous”. However, although a cause of action must be established and exemplary damages will be awarded only where the total amount of compensatory damages is considered inadequate to punish and deter, an award of compensatory damages is not a prerequisite of exemplary damages. While the Accident Compensation Act 2001 bars claims for compensatory damages in respect of personal injuries covered by that Act and its predecessors, claims can nevertheless be brought for exemplary damages alone.

[26]   Exemplary damages should be expressly pleaded, with full particulars of the conduct relied on and its egregious nature, and the amount sought should normally be specified.23 Awards must be kept to moderate levels.24

[27]   As noted, Mr Sheeran was given the opportunity to amend his statement of claim to include a claim for exemplary damages. He has not done so. However, because he has raised s 319(1) of the Act in his submissions, I will consider whether, on the material before me, Mr Sheeran may have a reasonably arguable claim for exemplary damages if pleaded.

[28]   Mr Chapman submits that inspection of the Margaret Street Reserve is undertaken regularly by council contractors. The Council has adduced evidence of the records of all maintenance requests lodged in relation to the Margaret Street Reserve between January 2018 and 31 December 2020. It is apparent that the Council was not notified  of  any  issues   with  the  swings  prior  to  Mr  Sheeran’s   accident   on     7 December 2019 other than a request noting that “swing dropper chains need untwisting” on 30 November 2018, which was resolved on 3 December 2018. The next entry regarding the swings is notification of the broken swing seat on 9 December 2019 (which notes that the “belt seat requires replacing due to the aluminium end on the belt being broken”). The maintenance records record that the repair work was

22     Todd on Torts, above n 19, at [24.3.3(1)] (footnotes omitted).

23     At [24.3.3(10)].

24     At [24.3.3(5)].

completed the same day. There is another entry recording a broken swing seat on 13 March 2020, with the repair work completed the same day.

[29]   Mr Sheeran appears to accept in his amended statement of claim that the Council did not have any known opportunity to fix the relevant swing prior to his accident. His amended pleading appears to focus on the opportunities that the Council have had to inspect and maintain the swings in the Reserve after 7 December 2019. Mr Sheeran seems to be alleging that the Council has failed to identify issues with the “swing located next to the swing that broke” in the period since 7 December 2019 and that this swing remains in a “hazardous state”. Mr Sheeran refers to photographs and video evidence that he says confirm his allegations. Mr Sheeran alleges that this conduct led to “undue risk of harm to the community” and that “this behaviour negligently contributed” to the damages he is seeking.

[30]   It is apparent that any breaches of duty by the Council since 7 December 2019 cannot have contributed to the compensatory damages Mr Sheeran is seeking in his amended claim resulting from his injury. The alleged damages are “lost potential future earnings” due to the alleged impact of the injury on his ability to work as a truck driver. He also seeks damages for pain and suffering as “this incident has impacted on my apprehension levels causing severe sleep deprivation and other anxiety related effects”.

[31]   It may be that Mr Sheeran is intending to seek exemplary damages to punish the   Council   for   alleged   breaches   of   duty   regarding   maintenance   since     7 December 2019 causing harm or the risk of harm to the community. However, as noted above, Mr Sheeran can only seek exemplary damages in respect of a harm done to him.25 Mr Sheeran cannot recover exemplary damages because of any perceived need to punish the Council for alleged breaches of duty causing harm to the community.26

25     Rookes v Barnard  [1964] AC 1129 (HL) at 1227–1228 per Lord Devlin; Bottrill v A [2001] 3 NZLR 622 (CA) at [44].

26     Todd on Torts, above n 19, at [24.3.3(1), fn 218].

[32]   Even if Mr Sheeran could establish a breach of duty by the Council regarding maintenance of the swings prior to 7 December 2019 causing his injury and damage, I do not consider that he can establish an entitlement to exemplary damages. The difficulty for Mr Sheeran is that there is nothing to indicate the Council “consciously appreciated the risk” in relation to the swing in question before 7 December 2019 and “proceeded deliberately and outrageously to run that risk”. The maintenance records do not indicate that the Council was aware of any issue with the swings in the period prior to 7 December 2019 (apart from an issue notified on 30 November 2018 which was resolved on 3 December 2018). The maintenance records indicate that whenever the Council became aware of any issues with the swings in the Reserve during the period 2018 to 2020, repair work was promptly carried out.

[33]   To the extent that Mr Sheeran is making a claim, or proposing to amend his pleading to make a claim, for exemplary damages against the Council pursuant to     s 319(1) of the Act, I am not satisfied that he has a reasonably arguable claim. Accordingly, any such claim would be struck out under r 15.1 of the High Court Rules.

Result

[34]   The Council’s application under r. 5.49(6) of the High Court Rules 2016 for an order dismissing Mr Sheeran’s claim for compensatory damages for lack of jurisdiction is granted.

[35]   Any claim by Mr Sheeran against the Council for exemplary damages pursuant to s 319(1) of the Act would be struck out under r 15.1 of the High Court Rules.

[36]I have not heard fully from the parties on costs. My preliminary view is that:

(a)the defendant has been successful and is entitled to costs;

(b)consideration should be given to the fact that the plaintiff is a litigant in person with little experience in litigation; and

(c)costs on a 2B basis (possibly with a modest uplift under r 14.6(3)(b)(i),

(ii) and (iii)) would be appropriate rather than indemnity costs as sought by the Council, together with reasonable disbursements.

[37]   The parties should endeavour to agree costs. However, if agreement cannot be reached, memoranda may be filed not exceeding three pages (excluding costs schedules) and costs will then be determined on the papers.

Associate Judge Skelton

Solicitors:
Simpson Grierson, Wellington for the Defendant