TAI HOBSON AND THE ATTORNEY-GENERAL (DEPARTMENT OF CORRECTIONS)

[2004] NZHC 1071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2003-404-6960

BETWEEN

TAI HOBSON

Plaintiff

AND

THE ATTORNEY-GENERAL (DEPARTMENT OF CORRECTIONS)

Defendant

Hearing:         17 and 18 May 2004

Appearances: J C Pike and F E Guy for Attorney-General (in support)

B P Henry, D Watson and D Garrett for Mr Hobson (in opposition) Judgment:  23 September 2004

JUDGMENT OF HEATH J

Solicitors:

Crown Law Office, PO Box 5012, Wellington Jefferies & Raizis, 101 Lambton Quay, Wellington Counsel:

B Henry, D Watson, D Garrett, PO Box 4070, Shortland Street, Auckland

TAI HOBSON V THE ATTORNEY-GENERAL (DEPARTMENT OF CORRECTIONS) HC AK CIV 2003-

404-6960 23 September 2004

TABLE OF CONTENTS

Para

1.   Summary of claim and result  [1]

2.   Background facts  [9]

3.   Strike out principles  [19]

4.   Causes of action

(a)   The negligence claim  [22]

(b)The claim based on breach of statutory duty                [31]

(c)The claim based on misfeasance in public office          [34]

5.   Approach to analysis of issues raised  [39]

6.   Negligence

(a)Introductory comments  [41]

(b)The “duty of care issue”  [42]

1. Nature of statutory scheme  [51]

2. Proximity considerations  [61]

3. Foresight                   [74]

   (iv)       Likelihood of Mr Bell offending in

manner that led to death of Mrs Hobson     [83]

1. Additional policy issues  [86]

(c)Negligence – conclusion  [95]

1. Breach of statutory duty  [96]

8.   Misfeasance in public office

(a)What do the authorities say?  [103]

(b)Can Mr Hobson sue for the tort of misfeasance

in public office  [117]

(c)Justiciability  [122]

(d)        Omissions and requisite knowledge  [136]

(e)Application to pleading in this case  [145]

9.   Conclusions  [151]

1.   Summary of claim and result

[1]   A man was convicted of aggravated robbery and was sentenced to a term of imprisonment of five years. The crime involved the armed robbery of a service station. Under legislation then in force the offender was required to be released into the community on parole having served two-thirds of the finite sentence of imprisonment imposed.

[2]   Having been released on parole, on specified conditions, the offender failed to comply with the terms of parole. During the currency of his parole he killed three people and seriously injured another. Those crimes were committed at the Mt Wellington-Panmure RSA Club (the RSA Club) in Auckland.

[3]   One of the people he murdered was Mrs Mary Hobson. She and her husband worked at the RSA Club. Her husband, Mr Tai Hobson, now sues the Attorney- General, on behalf of the Department of Corrections, seeking compensatory and exemplary damages in respect of alleged failures by those responsible for supervising the terms of parole. Allegations of failures to act are made both against the relevant probation officer and those responsible for allocating resources for the Probation Service. But for the alleged failures, Mr Hobson asserts that his wife would not have been killed.

[4]   The Attorney-General, while acknowledging the deep personal distress suffered by Mr Hobson as a result of the appalling crimes committed by the offender, applies to strike out the claim on the grounds that no reasonable cause of action is disclosed. In this judgment I consider whether, on the assumption that Mr Hobson can prove at trial all allegations of fact he makes, the claims necessarily fail as a matter of law. I note that not all facts alleged are admitted by the Crown.

[5]   It is accepted that the claims are novel. The claims require detailed  legal analysis. It is difficult to undertake analysis of the issues in simple terms. For that reason it is desirable that I summarise at the outset the conclusions I have reached and, at least in general terms, the reasons why I have reached those conclusions.

[6]   In my view Mr Hobson cannot bring claims in negligence or for breach of statutory duty against the Crown. I have reached that conclusion for three broad reasons, namely:

a)First, the legislative scheme creates duties of a public nature to be undertaken by probation officers for the benefit of the community as a whole. The public nature of the statutory duties militates against the proposition that (in the absence of specific knowledge of a particular risk that might be posed by the offender to a particular person or class of person) the additional duties should be superimposed by the Courts.

b)Second, it is not feasible to differentiate logically between those who were working at the place where Mrs Hobson was killed from those living or working in the vicinity of those premises. That distinction, drawn by counsel for Mr Hobson, was necessary to create the requisite degree of proximity between the probation officer and Mr Hobson for the purpose of imposing a common law duty of care.

c)Third, it would be wrong in principle and undesirable in practice to impose on probation officers duties to warn third parties which were, of themselves, unpredictable in nature.

[7]   However, if the claim were re-pleaded, it is possible that a claim could be brought for misfeasance in public office. My reasons for reaching that conclusion are:

a)The tort of misfeasance in public office has its origins in claims based on misuse of public office. It is entirely appropriate that the tort be available in cases involving public, as opposed to private, duties.

b)The tort is available if a public official acts with targeted malice towards a particular individual (or group of individuals) or is recklessly indifferent as to the consequences of his or her decision on the party (or parties) concerned.  The tort is also available to deal with

omissions. However, to be actionable, a failure to act must be deliberate; not the result of negligence, inadvertence or a misunderstanding of the law.

c)Claims for misfeasance in public office can be brought when a decision is taken in respect of a legal obligation justiciable by the Courts; but not (save, perhaps in rare or exceptional cases of a type not presently in issue) in respect of decisions of a budgetary, managerial, political or policy nature arising out of a Chief Executive’s responsibility to his or her Minister under s32 State Sector Act 1988.

[8]   It follows that the claims based on negligence and breach of statutory duty will be struck out. Further time will be given for the plaintiff to re-plead his case in misfeasance for public office. The precise orders of the Court are set out in paras [151]-[152] below.

2.   Background facts

[9]   In 1997, William Bell was sentenced to serve a term of imprisonment of five years. He had been convicted on a charge of aggravated robbery.

[10]      He was released from his custodial sentence on 4 July 2001. At that time, prisoners who had served two thirds of a sentence of imprisonment were entitled to be released on parole: see s90 Criminal Justice Act 1985 (the Act).

[11]      The law has since been changed. Legislative changes dealing with the sentence of supervision and the release of prisoners on parole, enacted by the Sentencing Act 2002 and the Parole Act 2002, came into force on 30 June 2002: generally, see Laws NZ, Prisons and Enforcement of Sentences (Reissue 1) at paras 228-252. Further amendments have been made recently: for example, see the Parole (Extended Supervision) Amendment Act 2004 and the Sentencing Amendment Act 2004, both of which came into force on 7 July 2004.

[12]The special conditions on which Mr Bell was released on parole were:

a)To make an appointment within 72 hours of release with the Departmental psychologist and keep such appointment and thereafter attending counselling as directed by the probation office;

b)To undertake such employment as directed by the probation officer;

c)To complete an assessment for the straight thinking programme as directed by the probation officer;

d)To make an appointment within 72 hours of release for alcohol and drug assessment, to keep such appointment and following assessment, to undertake counselling as recommended and directed by the probation officer;

e)To reside at a specified address or an address approved by the probation officer.

[13]      Mr Hobson alleges that, after his release but before 15 August 2001, Mr Bell (without the permission of his probation officer) began to attend a liquor licensing course. It is alleged that the probation officer was told that Mr Bell was  attending the course on 15 August 2001. As part of the liquor licensing course Mr Bell was assigned to work at the RSA Club. Mr Bell’s attendance at the liquor licensing course and employment at the RSA Club are said to be problematic because the probation officer was aware that, as a term of parole, Mr Bell was required to undergo an alcohol and drug assessment (see para [12](d) above).

[14]      In early December 2001, with the assistance of an associate, Mr Bell collected various items needed for a robbery. Those items included a shotgun, ammunition and a guitar case (in which the shotgun was hidden).

[15]      At about 7.30am on 8 December 2001, Mr Bell entered the RSA Club premises. Two people were present when he arrived. Two others arrived later. He was let into the clubrooms by someone who recognised him.

[16]      Mr Bell forced one of those present to open the safe, from which he took a sum of money. He then, callously and systematically, bludgeoned each of the four people in turn with the butt of a shotgun, having earlier shot one of them in the chest. Three of the victims (including Mrs Hobson) died. One person survived the ordeal, albeit grievously injured.

[17]      A jury found Mr Bell guilty on three charges of murder and one charge of attempted murder. The trial Judge, on sentencing, said that Mr Bell had taken the shotgun with him for the express purpose of killing anyone he found on the premises who might recognise him. She sentenced Mr Bell to life imprisonment, with a minimum non-parole period of 33 years. On an appeal against the sentence imposed, the Court of Appeal, while reducing the minimum non-parole period to 30 years, described the circumstances in which Mr Bell’s crimes were committed as “truly appalling”: see R v Bell (CA80/03, 7 August 2003, Keith, Tipping and Anderson JJ). My description of the events of 8 December 2001 is taken from the Court of Appeal’s judgment.

[18]The most recent version of Mr Hobson’s Statement of Claim pleads that:

a)The probation officer knew (or was reckless if he or she did not know) that Mr Bell had a propensity for violent crime.

b)The probation officer knew (or was reckless if he or she did not know) that Mr Bell was attending at the RSA Club as part of the liquor licensing course he was undergoing.

c)Had proper inquiry been made, the probation officer would have known that both Mr and Mrs Hobson worked at the RSA Club.

3.   Strike out principles

[19]      In South Pacific Manufacturing Co Ltd v NZ Security Consultants and Investigations Ltd [1992] 2 NZLR 282 (CA) at 305, Richardson J said that a litigant seeking to strike out a claim must demonstrate “on the material before the Court and

in the light of the present state of evolution of the common law that the cause of action sought to be relied on is so clearly untenable that it cannot possibly succeed”. See, also, Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 (CA) at 317 and Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.

[20]      An application to strike out a claim proceeds on the assumption that the facts pleaded in the statement of claim are capable of being proved at trial. That assumption is made because it would be wrong to prevent a claim from being tried when findings of fact have not been made and, indeed, cannot be made until the evidence of witnesses has been tested at trial. So, the question is whether, on the  best view of the facts alleged by a plaintiff, the claim could succeed as a matter of law.

[21]      The jurisdiction to strike out a claim is one to be exercised sparingly: generally, see Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (CA) at 45 and Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641 (CA). However, the fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the exercise of the jurisdiction: Gartside v Sheffield, Young & Ellis at 45. Further, the general principle is that if, after argument, it appears that a claim may be capable of reformulation, time should ordinarily be given to allow amendments to be made to the relevant statement of claim: as to best practice on this point see CED Distributors (1988) Ltd v Computer Logic Ltd (In Receivership) (1991) 4 PRNZ 34 (CA) at 46.

4.   Causes of action

(a)   The negligence claim

[22]      The first pleaded cause of action is in negligence. Two distinct allegations  are made which require discrete consideration.

[23]      First, it is alleged that the probation officer owed a duty of care to Mr and Mrs Hobson “not to depart from ordinary or professional precepts of prudence or

standards of care of a probation officer”. In particular, it is alleged that the probation officer had a duty to ensure that Mr Bell complied with the terms of his parole; as set out in para [12] above.

[24]      Second, Mr Hobson alleges that the probation officer had a duty of care to warn Mr and Mrs Hobson (and any other co-worker of Mr Bell at the RSA Club) of Mr Bell’s propensity for violent crime.

[25]      The degree of proximity required for a negligence claim is alleged to result from the knowledge the probation officer had (or ought to have had) about Mr Bell’s employment at the RSA Club.

[26]      It is alleged that the probation officer breached the duty of care owed because he or she:

a)Failed to ensure that Mr Bell attended any of the psychiatric, alcohol or drug programmes set out in the conditions.

b)Failed to supervise Mr Bell in any material way.

c)Failed to ensure that Mr Bell was living in suitable accommodation.

d)Permitted Mr Bell to undertake a liquor licensing course and to work at the RSA Club.

e)Failed to warn Mr and Mrs Hobson (or anyone else working at the RSA Club) of the fact that Mr Bell had a propensity for violent crime and advise them of his conviction for aggravated robbery.

[27]      Logically, although not pleaded as such, the allegations summarised in para [26](a)-(d) above are relevant to the alleged duty of care “not to depart from ordinary or professional precepts of prudence or standards of care of a probation officer”.   The allegations set out in para [26](e) above are relevant to the alleged duty to warn Mr and Mrs Hobson of Mr Bell’s propensity for violent crime.

[28]      Mr Hobson alleges that his wife was murdered as a consequence of the breaches of duty by the probation officer. He says (understandably) that he has suffered mental anguish, pain and general suffering as a result of the murder of his wife. He seeks both damages for mental anguish, pain and suffering and exemplary damages.

[29]      The conduct giving rise to the claim for exemplary damages is said to be a “flagrant  departure  from  appropriate  standards  of  supervision”.  In  particular,  Mr Henry, for Mr Hobson, relies on two factors; namely,

a)The probation officer’s failure to ensure that Mr Bell underwent the psychiatric, alcohol and drug assessment and counselling expressly directed by the Parole Board.

b)The failure of the probation officer (and, more generally, the Probation Service) to ensure that Mr Bell complied with  the remaining terms of his parole.

[30]      Damages are sought in the sum of $550,000, comprising compensation for pain and suffering in the sum of $50,000 together with exemplary damages in the sum of $500,000. The claim for exemplary damages is based on Bottrill v A [2003] 2 NZLR 721 (PC). In Bottrill, the Privy Council (by a majority) held that exemplary damages could be ordered if a defendant had departed “so far and so flagrantly from ordinary or professional precepts of prudence or standards of care” that it was appropriate to punish the conduct in that way: at 729, para [26] per Lord Nicholls of Birkenhead, for the majority.

(b)   The claim based on breach of statutory duty

[31]      The second cause of action is based on statutory duty. The statutory duty on which reliance is placed arises from s125 of the Act. The opening words of s125(1) refer to “the duty of every probation officer”.

[32]      Mr Henry emphasised the absence of sanctions in the Act that “can discipline or in any way affect a probation officer who” fails to perform the “fundamental duty” to supervise. He submitted that the absence of such statutory provisions weighed in favour of construing the statute in a manner which would create an enforceable private law right to sue for damages.

[33]      General damages for mental anguish, pain and general suffering and exemplary damages are sought on the cause of action for breach of statutory duty. All damages are sought on the same basis claimed in the negligence cause of action.

(c)   The claim based on misfeasance in public office

[34]      The claim based on misfeasance in public office is based both on alleged failures by an individual probation officer to perform statutory duties and on alleged systemic failures. The claim, as presently formulated, conflates individual duties of the probation officer under s125(1) of the Act and duties owed by those responsible for allocating resources within the Department.

[35]It is alleged that the individual probation officer:

a)Failed to ensure that Mr Bell undertook an induction process at the commencement of his parole.

b)Failed to make appointments with a psychologist or psychologists employed by the Department, and failed to ensure he attended for an alcohol and drug assessment as required by the conditions of his parole.

c)Failed to visit the specified address at which Mr Bell was to live.

d)Failed to act appropriately when he or she became aware of Mr Bell’s unauthorised change of address.

e)Breached the Department’s standard policy by changing Mr Bell’s reporting to fortnightly reports some six weeks into the parole period.

f)Breached the Department’s standard policy by allowing Mr Bell not  to report for more than four weeks following the switch to fortnightly reporting.

g)Failed to place Mr Bell on the “Offender Warning Register” on or immediately after 14 November 2001 (when the Department became aware Mr Bell had been charged with male assaults female).

h)Failed to initiate recall proceedings after becoming aware of the assault charge.

[36]      Systemic failures are also alleged. The present pleading focuses on alleged failures by the Area and Regional Managers of the Department of Corrections.

[37]The Area and Regional Managers are alleged to have:

a)Failed to ensure that the Mangere Centre (where Mr Bell’s probation officer was located) was adequately resourced.

b)Failed to respond to pleas by the Acting Manager of the Mangere Centre in the months prior to the murders for further resources for that office.

c)Allowed or acquiesced in the mismanagement of the Mangere Centre by the predecessor of the Acting Manager of the Mangere Centre.

d)Failed to insist on standard practice being followed in the Mangere Centre when informed that serious departures from standard practice were occurring at the Mangere Centre.

e)Introduced the Integrated Management of Offenders Scheme (IMOS) in the northern half of the North Island and, in particular, at the

Mangere Centre, which diverted already scarce human resources from the business of managing Mr Bell and others.

f)Caused or knowingly allowed officers to be absent from the Mangere Centre for the purpose of IMOS training, resulting in the Mangere Centre being unable to function, or even open, on more than one occasion.

g)Failed to ensure that psychologists were available to carry out the assessments such as those Mr Bell was required by the conditions of his parole to undertake;

h)Failed to respond to unauthorised industrial action at the Mangere Centre in September 2001 despite being informed by the Acting Manager that such action was causing the Mangere Centre to be “non- functioning”.

[38]      Damages are claimed in the same amounts (and on the same bases) as for the claims based on negligence and breach of statutory duty.

5.   Approach to analysis of issues raised

[39]      Counsel agree that the present claims, as formulated, raise novel questions in respect of all three causes of action pleaded. Thus, the case is of public interest as well as of significance to Mr Hobson personally.

[40]      The question for my determination is whether, on the assumption that the facts he alleges are proved at trial, Mr Hobson’s case could succeed at law. In order to determine that question I analyse each cause of action individually.

6.   Negligence

(a)   Introductory comments

[41]      The tort of negligence is committed when a person whom the law regards as owing a duty of care to another fails to exercise the required degree of care and attention and loss is suffered as a result: generally, see Todd et al, The Law of Torts in New Zealand (Brookers, 3rd Ed. 2001) at 142-143 (Todd). The critical question  on the negligence cause of action is whether the probation officer owed a “duty of care” to Mr Hobson. As the answer to that question is dispositive of this aspect of  the application, I do not propose to consider the vexed question of causation that was also argued before me.

(b)   The “duty of care” issue

[42]      The New Zealand approach to determining whether, in novel circumstances, a duty of care exists was settled in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282 (CA). That approach appears to differ from contemporary English authority, at least when the alleged duty is supported by a statutory provision: see Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 (HL) at para [3] per Lord Steyn. In Gorringe, Lord Steyn suggested that the correct approach was to ask: Does the statute exclude a private law remedy? That is a relevant, but not necessarily  decisive, factor on the South Pacific approach. I am bound by and must apply South Pacific.

[43]Two citations from South Pacific will suffice for present purposes:

a)First, at 294, Cooke P said the inquiry into whether a duty of care existed is undertaken by reference to two broad questions: namely (a) the degree of proximity or relationship between the alleged wrongdoer and the person said to have suffered loss and (b) whether other policy

considerations existed tending to negative or restrict a duty of the type alleged. Cooke P continued, at 294-295:

(i)     A broad two-stage approach or any other approach is only a framework, a more or less methodical way of tackling a problem. How it is formulated should not matter in the end. Ultimately the exercise can only be a balancing one and the important object is that all relevant factors be weighed. There is no escape from the truth that, whatever formula be used, the outcome in a grey area case has to be determined by judicial judgment. Formulae can help to organise thinking but they cannot provide answers.

(ii)     Sometimes it is suggested that a certain formula, for instance that of Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728, 751-752, creates a prima facie presumption of a duty based on reasonable foresight. I am of the school of thought that has never subscribed to that view, largely because of Lord Wilberforce's reference to a sufficient relationship of proximity or neighbourhood. It would be naive, and I believe absurd and dangerous, to assert that a duty of care prima facie arises whenever harm is reasonably foreseeable. Even quite unlikely consequences may be reasonably foreseeable (compare the kind of issue in criminal law considered in Chan Wing-Siu v R [1985] AC 168). Naturally the degree of likelihood and the seriousness of the foreseeable consequences can be important factors in the balancing exercise. (my emphasis)

b)Second, at 305-306, Richardson J put the ultimate question as follows: in light of all the circumstances of the case, is it just and reasonable that a duty of care of the type alleged be imposed? His Honour continued:

… It is an intensely pragmatic question requiring most careful analysis. It has fallen for consideration in numerous cases in this Court over recent years and, drawing on Anns v Merton London Borough Council, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. That is not of course a simple question of foreseeability as between parties. It involves consideration of the degree of analogy with cases in which duties are already established and, as I shall develop shortly, reflects an assessment of the competing moral claims. The second is whether there are other policy considerations which tend to negative or  restrict - or strengthen the existence of - a duty in that class of case. (my emphasis)

[44]      Similar approaches were adopted by the remaining Judges in South Pacific: see 312 per Casey J, 317 per Hardie Boys J and 324-325 per Sir Gordon Bisson.

[45]      In the judgments of both Cooke P and Richardson J in South Pacific, their Honours placed emphasis on the need for a mixture of both analysis and judgment  on the “duty of care” issue. In the context of claims seeking to impose liability on one party for a crime committed by another that need is particularly high: to illustrate the point compare S v Midcentral District Health Board (No. 2) [2004] NZAR 342 (in which William Young J allowed a claim to proceed to trial) with Maulolo v Hutt Valley Health Corporation Ltd [2002] NZAR 375 (in which Wild J struck out a claim).

[46]      In S v Midcentral District Health Board, at paras [20]-[23] (inclusive) William Young J summarised admirably the issues arising from claims of this nature. His Honour said:

[20]      The Courts have become increasingly familiar with cases in which a plaintiff who has been the victim of a crime seeks to hold a third party liable on the basis of negligence for permitting the commission of the crime by the offender.

[21]Defendants in this sort of litigation are likely to be:

1.         Police authorities (in situations where the Police are said to have incompetently investigated the commission of crimes or to have failed to take logical and sensible precautions to prevent a particular crime being committed), see for instance Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL), Osman v Ferguson [1993] 4 All ER 344 (CA) and the sequel, Osman v UK (1998) 5 EHRC 293.

2.     Prison authorities (who are said to have negligently permitted prisoners to escape to commit further offences or to have failed to protect prisoners from violent offending from other prisoners), see for instance Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL).

3.     Social welfare authorities (who have failed to take adequate precautions to protect children from violence from those who have direct custody and control of them) see for instance Attorney-General v Prince [1998] 1 NZLR 262 (CA) and Barrett v Enfield London Borough Council [1999] 3 All ER 193 (CA).

4.     Medical authorities, including doctors (who are said to have negligently failed to prevent mental health patients from committing further offences), see for instance W v Counties Manukau Health Ltd [1995] 2 NZLR 560, van de Wetering v Capital Coast Health (High Court, Wellington CP 368/98, 19 May 2000,  Master Thomson),  Maulolo  v Hutt  Valley Health  Corporation

Ltd [2002] NZAR 375 and Palmer v Tees Health Authority [1999] 1 Lloyd’s Rep (Med) 351 (CA).

[22]     The cases have thrown up factual permutations which are too diverse to be usefully summarised in this judgment. It is sufficient at this point for me to say that claims seem to be regarded as most legally meritorious when the defendant in question either:

1.       Recognised (or should have recognised) that the offender in question posed particular threat to a particular individual or small group of individuals; or

2.Had a pre-existing duty to the victim of the offence.

[23]          Accordingly, claims against medical authorities for negligence associated with the failure to prevent violent behaviour by psychiatric patients have tended to be dismissed where the duty alleged by the plaintiff is said to have been owed to the public at large, see for instance the cases cited in para [21](4) above. On the other hand, where the offender is a psychiatric patient of a medical institution, that institution may well be regarded as under a duty of care to other patients to take reasonable precautions to prevent them being exposed, unnecessarily, to danger, see the Canadian Supreme Court decision Wellesley Hospital v Lawson [1978] 1 SCR 893; (1978) 76 DLR (3d) 688. There, it was common ground that a duty of care was owed by a hospital to a patient who had been assaulted by a psychiatric patient. In that case the alleged negligence of the hospital was said to be:

… permitting a mentally ill patient, with known propensities to violence, to be at large in the hospital premises without adequate control or supervision of his movements.

With respect, I adopt William Young J’s analysis. Specifically, I adopt the formulation set out in para [22] of his judgment, on which I cannot improve. I  regard William Young J’s analysis as a convenient summary of the issues arising from South Pacific in a case of this type.

[47]      It is clear that the second of William Young J’s categories has no application in this case. Neither Mr nor Mrs Hobson were specifically known to the probation officer concerned. Thus, there was no pre-existing duty. Accordingly, any liability needs to be founded on the first category identified. The success of a claim of that nature depends on proof that the probation officer recognised, or ought to have recognised, that Mr Bell posed a particular threat to particular individuals or a small group of individuals. Whether that is so requires analysis in the manner suggested in South Pacific.

[48]      In my view there are five general headings under which relevant considerations can be grouped for the purposes of analysis. They are:

i)Does the nature of the statutory scheme exclude the possibility of a claim based on negligence?

ii)Are there compelling and logical reasons for differentiating Mr Hobson (whether as the husband of the late Mrs Hobson or as an employee of the RSA Club) from other members of society so that there is sufficient proximity between Mr Hobson and the probation officer to found a duty of care?

iii)Was it foreseeable to the probation officer that Mr Hobson would suffer the type of loss for which he now claims compensation?

iv)What was the likelihood of Mr Bell offending in the manner that actually caused the death of Mrs Hobson?

v)Save for issues arising from consideration of the statutory scheme, what policy reasons exist to support or reject imposition of an actionable duty of care in negligence? I refer to those as additional policy issues.

[49]      I emphasise that the claim brought by Mr Hobson is brought in his own right. The claim requires analysis on that basis. There is no claim made against the Attorney-General in any representative capacity on behalf of the estate of the late Mrs Hobson.

[50]      I now deal with each of the five general topics listed in para [48] above in turn.

(i)   Nature of statutory scheme

[51]      The statutory scheme requiring consideration is that in force at the time Mr Bell was released on parole. At that time, Part VI of the Act dealt with parole. Section 90 of the Act required an offender who had served two-thirds of his or her sentence to be released on parole if no minimum non-parole period had been imposed and no application had been made successfully for an order that the person not be released on the grounds that the person was likely to commit a “specified offence”. The term “specified offence” was defined as meaning the crime of murder and other serious sexual and violent offending. See, generally, ss90(2) and (3) and 105(2), (3) and (9) of the Act.

[52]      Standard conditions for release were prescribed by s107B of the Act. In addition, the Parole Board or a District Prison’s Board had power to impose on an offender such special conditions as it thought necessary “to protect the public or any person or class of persons who may be affected by the release of the offender” or “for the rehabilitation” or “welfare of the offender”: s107C(1) of the Act.

[53]      In particular, s125(1)(a) provided that every probation officer is under a duty “to ensure that the conditions of ... the release are complied with”. Other “duties” of probation officers contained in s125(1) relevant to this case are:

(c)  To co-ordinate and arrange community involvement (including the use of volunteers) in the administration of any particular community-based sentence, or any particular release on conditions under Part 6 of this Act, where appropriate, and in accordance with any instructions issued by the Manager Community Corrections:

(d)   To arrange and monitor courses of social education or counselling or personal services directed at the social re-integration of offenders and the reduction of the likelihood of re-offending, where appropriate, and in accordance with any instructions issued by a controlling officer:

Similar duties (now expressed as “functions”) are found in s25 of the Corrections Act 2004. While the Corrections Act has been passed, s25 is not yet in force and s125 of the Act continues to apply meantime.

[54]      The object of releasing a prisoner on parole is to promote his or her reintegration into the community while managing the risk of re-offending through the imposition of appropriate conditions. By ss124 and 125 of the Act, Parliament placed the responsibility for supervising compliance with conditions of parole by prisoners on probation officers appointed under the State Sector Act 1988.

[55]      The State Sector Act 1988 governs the employment of those in the public sector. Probation officers are responsible for the supervision of a person released on parole. A probation officer is likely to have little choice as to whether he or she is assigned to a particular prisoner. Regardless of how difficult it may be to supervise a particular prisoner, the duties of the probation officer remain constant.

[56]      The obligations imposed on probation officers by s125(1) bear the hallmarks of public duties. The duties imposed necessarily require the probation officers to form judgments and to exercise discretions. Those judgments and discretions are to be exercised in a manner that promotes reintegration of an offender into the community while managing the risk of re-offending: see, in particular, s125(1)(c) and (d). Reintegration of offenders and management of the risk of re-offending are both public policy goals.

[57]      The duties expressed in s125(1) of the Act are for the benefit of society as a whole. The public nature of the duties militates against a conclusion that Parliament intended that they be enforced (in all cases) by private action, brought by an individual citizen, to recover loss or damage allegedly suffered as a consequence of a negligent breach.

[58]      I have considered whether the judgment of the Court of Appeal in Attorney- General v Prince and Gardner and the subsequent decision of the Privy Council in  B v Attorney-General [2004] 3 NZLR 145 affect the conclusion I have reached as to the public nature of the duties imposed. In Prince the Court of Appeal, sitting as a Bench of five, declined to strike out a claim in negligence brought by a child in respect of an alleged failure by social workers to investigate a complaint that his adopted parents were neglecting him. In B the Court of Appeal [[1999] 2 NZLR 296]] struck out a similar claim. The claim was reinstated on appeal to the Privy

Council. The Privy Council did not consider afresh whether a duty of care of the  type found in Prince had been correctly imposed as a matter of law; rather, the Privy Council determined B based on an application of the Court of Appeal judgment in Prince: see B v Attorney-General at 150, para [12]. Both Prince and B involved consideration of the Children and Young Persons Act 1974. Section 5 of that Act placed an affirmative duty on the Director-General of Social Welfare “to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation”: s5(1). Further, the Director-General was required to arrange for prompt inquiry when he or she knew, or had reason to suspect, that any child or young person was suffering or likely to suffer from ill treatment or inadequate care or control: s5(2)(a).

[59]      The Privy Council in B, considered the question to whom such duties of care were owed. The duty was held to extend only to the child or young person in respect of whom the statutory duty existed. It was held not to extend to the father who, in  the particular case, was the alleged perpetrator of abuse. As Lord Nicholls of Birkenhead observed, in delivering the advice of the Privy Council:

… In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one in the same time, in favour of the alleged perpetrator would not be satisfactory. … The decision in Prince’s case rests heavily on the feature that the duty imposed on the Director-General by s5(2)(a) of the 1974 Act is for the benefit of the particular child. Self-evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince’s case.  (B v Attorney-General at 154-155, para [30])

[60]      On analysis, it is clear that cases such as Prince and B fall squarely within the categories identified by William Young J in S v Midcentral District Health Board at para [22]. Those cases do not, therefore, aid Mr Hobson’s claim that a common law duty of care ought to be imposed on the facts of the present case.

(ii)   Proximity considerations

[61]      Mr Henry submits that it is sufficient to limit the duty of care to those who worked at the RSA Club. He is able to cast his submission in that way because,  while Mr Hobson is the husband of the late Mrs Hobson, he was also a co-worker at the RSA Club. This conflation of Mr Hobson’s status as the late Mrs Hobson’s spouse (for the purpose of seeking damages) and co-worker (relevant to proximity in determining whether a duty of care as pleaded exists) is troublesome. In some ways it highlights the problem inherent in identifying a sufficiently proximate relationship to give rise to a private law claim for damages.

[62]      Is the distinction pleaded sufficient to justify the imposition of a duty of care? In my view, it is not because:

a)The distinction adds nothing to the first pleaded duty – namely the duty not to depart from ordinary standards of care required of a probation officer. The probation officer, by s125 of the Act, was required to supervise Mr Bell’s compliance with conditions of parole as part of the process by which risk of re-offending was to be managed.

b)In the case of the alleged duty to warn those who worked at the RSA Club of Mr Bell’s propensity for violence, there is no logical basis on which to distinguish workers at the RSA Club from others living or working in the vicinity of the Club.

c)If a duty to warn existed, where and how would one draw the line between those required to be warned and those not? For example, it is easy to posit an example of a service station nearby and to query whether the management or employees of that service station ought to be warned, given the fact that Mr Bell’s conviction for aggravated robbery arose out of an armed robbery at a service station. And, if such management and staff ought to be warned, within what radius of

the  RSA  Club  would  that  duty  to  warn  arise?     And what about motorists passing through the service station from time to time?

[63]      It is also useful to compare the proximity issues arising in this case with those confronted by Courts in other jurisdictions. I take three particular cases to which I was referred in argument by Mr Henry.

[64]      In Swan v The State of South Australia (1994) 62 SASR 532 the Full Court of the Supreme Court of South Australia imposed a duty of care on the basis that information had come to the knowledge of the State revealing that there had been a breach of condition of parole of a type likely to cause harm to foreseeable persons. That case concerned a convicted paedophile released on stringent conditions of parole. One condition required that he not associate with persons under the age of 14 years except in the presence of another adult. The Court found that once non- compliance with conditions was realised a duty of care arose. That duty was owed to children known (by the relevant statutory officers) to have been associating with the convicted paedophile when the breach of duty occurred. See in particular the judgments of Bollen J at 548-549 (with whom Mohr J agreed) and Duggan J at 551- 552.

[65]      In Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR (4^th) 697 McFarland J found a duty of care to exist in the following circumstances. The police were keeping premises under surveillance in relation to a likely serial rapist. Nevertheless, the occupants of the building were not warned that they were at risk from a serial rapist. The Judge was satisfied that the Police knew the rapist would continue to attack women until he was stopped and that he was attacking single white women living alone in the particular apartments. In effect, by failing to warn the women, the Police were using them as “bait” for the rapist. In those circumstances, a duty of care to warn the women concerned was held to exist. The plaintiff was the victim of the rapist at a time Police had the building under surveillance.

[66]      In my view, both Swan and Doe are authority for the proposition that a duty will generally exist if the offender in question posed a particular threat to a particular

individual or a small group of individuals. That proposition accords with category

(1) of para [22] of William Young J’s judgment in S. Nevertheless, I note that the (English) Court of Appeal declined to follow Doe recently on the basis that the rationale for the decision conflicted with the policy considerations enunciated by the House of Lords in Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL): see Osman v Ferguson [1999] 4 All ER 344 (CA) at 353-354 per McCowan LJ (with whom other members of the Court agreed).

[67]      In Godfrey v New South Wales [2003] Aust Torts Reports 63,930, Shaw J, in the Supreme Court of New South Wales, concluded that those responsible for the management of penal institutions owed a duty of care to take reasonable steps to prevent harm to a person in the position of the plaintiff in that case by “controlling the opportunities of a prisoner to escape”: see para 70 at 63,939. The Judge expressly noted that the duty imposed was not to prevent escapees from committing criminal acts nor to keep all prisoners in jail. The plaintiff in Godfrey was working  at a news agency when an escaped prisoner committed an aggravated robbery through the use of a gun. She was five months pregnant at the time, suffered abdominal cramps that persisted and her son was born prematurely. She brought a claim for damages against the State of New South Wales claiming she suffered debilitating nervous shock from the robbery.

[68]      In my view, the same result would not be reached in New Zealand, applying the analysis of William Young J in S. No pre-existing duty was owed by the probation officer to the victim of the offence. Neither, in my respectful view, ought the probation officer to have recognised that the offender in question posed a particular threat to a woman in the position of Ms Godfrey.

[69]      As it happens, Shaw J’s judgment in Godfrey has been reversed by the Court of Appeal of New South Wales on the ground that no duty of care existed: see The State of New South Wales v Godfrey [2004] NSWCA 113. Judgment was delivered on appeal on 7 April 2004. I refer, in particular, to paras [20]-[35] (inclusive) of the principal judgment, delivered by Spigelman CJ, with whom both Sheller and McColl JJA agreed.

[70]      It is sufficient to refer specifically to paras [20]-[28] of Godfrey in the Court of Appeal. Spigelman CJ placed emphasis on the degree of control that could be exercised by a particular person over another in determining whether a duty ought to be imposed. In doing so His Honour linked the degree of control capable of being exerted by the person against whom breach of duty is alleged to the principle that, generally, a person will not be liable for the criminal conduct of a third party.

[71]      Ultimately, it is my view that there is an insufficient nexus between the probation officer and Mr Hobson to justify imposing a duty of care, actionable as a private law right. Put simply, it is not possible to differentiate logically those who were working at the place where Mrs Hobson was killed from those living or working in the vicinity of those premises.

[72]      With regard to the difficulty in differentiating, logically, a class of people working at the RSA Club from those living or working in the vicinity of it, I note that my addition of a reference to the “vicinity” demonstrates an undesirable lack of precision. Where ought the boundary to be drawn? Any attempt to reduce the scope of the “duty”, for the purpose of defining a group of people with a sufficiently proximate connection to justify a suit in negligence, is necessarily artificial.

[73]      The artificial nature of the distinction serves to emphasise that what is sought in this case is to translate a duty owed by a public official for the benefit of the community at large into a private duty, for the purposes of enabling Mr Hobson to bring a claim in negligence against those responsible for supervising Mr Bell’s terms of parole.

(iii)   Foresight

[74]      As Cooke P noted in South Pacific (at 295) it is both “naive” and “absurd and dangerous” to assert existence of a prima facie duty of care whenever harm is reasonably foreseeable. Similarly, foreseeability alone is not regarded as sufficient  to establish a duty of care in Australia: see Sullivan v Moody (2001) 207 CLR 562 (HCA) at 567, para [42] and State of New South Wales v Godfrey at para [39] per Spigelman CJ, in the Court of Appeal of New South Wales.

[75]      In any case where a serving prisoner is released on parole on conditions designed to manage the risk of re-offending, it is axiomatic that a risk of re- offending exists that requires management. Nevertheless, in some cases it is possible to narrow the category of persons at risk: eg those at risk from paedophiliac behaviour (eg Swan), those at risk from the actions of a serial rapist (eg Doe) or those at risk from the actions of a burglar (or armed robber) with a standard modus operandi limiting the circumstances in which re-offending is likely.

[76]      In a case such as this foresight of violent re-offending must be real. The risk of violent re-offending arises from Mr Bell’s prior conviction for aggravated robbery and the view that past behaviour is often a good indicator of what a person may do in the future.

[77]      I limit my consideration of “foresight” to three decisions: Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL), Hill v Chief Constable of West Yorkshire (HL) and Godfrey (Court of Appeal of New South Wales).

[78]      In Dorset Yacht Co Ltd three Borstal officers were on an island supervising ten Borstal inmates. In breach of instructions the officers went to bed for the night. Some inmates escaped by taking a yacht. They crashed the  yacht into another  vessel. By a majority (4-1) the House of Lords held that the Home Office owed a duty of care to the owners of the yacht. At 1027 Lord Reid said:

But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage. And I must consider to what extent the law regards the acts of another person as breaking the chain of causation between the defendant's carelessness and the damage to the plaintiff.

[79]      The decision in Dorset Yacht Co was explained by Lord Keith of Kinkel in Hill v Chief Constable of West Yorkshire at 62. That case involved claims against the Police in relation to the activities of Peter Sutcliffe, who was nicknamed “the Yorkshire Ripper”. Lord Keith said:

It is plain that vital characteristics which were present in the Dorset Yacht

case and which led to the imposition of liability are here lacking. Sutcliffe

was never in the custody of the police force. Miss Hill was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the borstal boys. It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest on a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public. The same rule must apply as regards failure to recapture the criminal before he had time to resume his career.  ….  But, if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed on any police force a duty of care similarly owed to identify and apprehended an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of a habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire police. (my emphasis)

[80]      The allegation of failure to comply with the ordinary standards required of probation officers falls to be determined, primarily by reference to the scope of the statutory duty set out in s125 of the Act: a duty I have held to be public, rather than private, in nature. The question of proximity arises more directly in relation to the pleaded duty to warn a third party.  Applying what was said by the House of Lords  in Dorset Yacht Co and Hill, while it might have been foreseeable that Mr Bell would commit a crime of violence and that a member of society would be his victim, no duty to warn particular (or all) members of society could reasonably be imposed. Foreseeability, of itself, has never been sufficient to found a duty to warn.

[81]      Views expressed in the Court of Appeal of New South Wales in Godfrey are also relevant. In discussing the issue of foreseeability (at paras [41]-[46]), Spigelman CJ said:

41   In this case there was adduced as a body of conflicting, purportedly expert, evidence and statistical evidence about the propensity of escapees to

commit crimes and on the propensity of persons with convictions for non violent offences to escalate their criminality. The conflicts in this evidence were not resolved by the trial judge. In any event, I found the evidence distinctly unhelpful.

42  The issues that arise on this evidence concern the size of the risk, i.e. how likely is the behaviour. This is a matter which arises on the question of breach when determining what, in the particular circumstances of the case, the reasonableness standard required. (See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48). The Appellant, by conceding breach, disenabled itself from raising such qualitative issues in that regard.

43  The evidence relating to this matter is not of a character which is likely to turn on an assessment of the witnesses. Accordingly, it is appropriate for this court to assess the evidence, even in the absence of findings of fact.

44  The statistical evidence does suggest a relatively low level of risk that an escapee will commit offences of violence. Indeed, the Appellant relied on this evidence against the suggestion that the State would incur an intolerable burden if liability of this character were to be recognised.

45   The record of this particular offender suggested that he may commit crimes, including, possibly, armed robbery, after an escape, but again not at a particularly high level of probability given the fact that such would involve an escalation of his criminality. The evidence of the former police officer, even if admissible, does not rise above the level of an opinion that "it would be more probable than not", that Mr Hoole would commit more serious crimes than housebreaking, including armed robbery. …

46   This, and other such evidence does not involve such a high degree of predictability as to constitute a significant factor in determining whether a duty of care exists.

As this case is being considered on a strike-out application the type of evidence to which the Chief Justice of New South Wales referred is not before me. Yet, it is possible to apply the analysis to inferences that may be open from pleaded facts.

[82]      In my view, Spigelman CJ’s analysis is wholly consistent with Lord Keith’s observations in Hill. All that need be said, in consequence, is that while it might  well be foreseeable (from the pleaded facts) that Mr Bell might commit a violent crime, it could not have been foreseen (on the basis of the pleaded facts) that he would kill in the callous and calculated manner in which he did.

(iv)   Likelihood of Mr Bell offending in manner that led to death of Mrs Hobson

[83]      Mr Bell had been released following conviction for aggravated robbery. The aggravated robbery was an armed robbery of a service station.

[84]      Central to Mr Henry’s argument is the proposition that Mr Bell posed a greater risk of harm to those with whom he worked at the RSA Club than other members of society. But, there is no pleading to suggest that Mr Bell’s propensity  for violence was restricted in any way to co-workers or, indeed, to persons whom he knew.

[85]      It is unlikely, therefore, that a probation officer could have regarded it as objectively likely that Mr Bell would offend in the manner that caused the death of Mrs Hobson.

(v)   Additional policy issues

[86]      The need for any private law duty of care to be predictable in its application is an important consideration.

[87]      If a duty of care of the type alleged were found to exist it would be necessary, in each case, for a probation officer to consider the nature and extent of any warning and the persons to whom such a warning would need to be given. Those questions would require consideration in every case in which a prisoner was released on parole.

[88]      In exercising functions of a public nature it is clearly necessary for probation officers to consider the safety of the community. Nevertheless, in my view, it would put too great an obligation on a probation officer if he or she were required in every case to consider how and to whom warnings should be given and to be liable for damages if an assessment were determined incorrect. The situation is different if the probation officer were on notice of a particular breach of condition (or a particular propensity of an offender) and a likelihood of danger to a known person or group of

people.    In such circumstances, a duty to warn would arise in respect of those specifically at risk: see S (at para [22]), Swan and Doe.

[89]      It is unlikely that society would benefit if scarce and valuable human resources were diverted from the actual supervision of offenders to determining, in all cases, how to warn members of the public who might be at risk of offending. In this context, some weight must also be given to the public policy goal of successfully re-integrating offenders into the community. Those factors militate against imposition of a duty of care actionable in private law. Further, it would be wrong in principle and undesirable in practice to impose private law duties on a probation officer which were, themselves, unpredictable in their application.

[90]      In addition, there is the problem that Mr Bell, despite being subject to supervision, was an independent human being capable of acting with free will.

[91]      Although the probation officer had the right to apply to seek the recall of Mr Bell if he failed to comply with conditions (s107I(3) and (6) of the Act; see also ss107J-107N (inclusive)), it must be accepted that the power to compel someone in Mr Bell’s position to do everything the probation officer recommends or directs is,  in practical terms, necessarily limited.

[92]Those conclusions are supported by wider policy considerations.

[93]      As Lord Steyn had cause to remark recently “the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy”: Gorringe v Calderdale Metropolitan Borough Council at para [2]. Similarly, some years earlier, Lord Templeman, in  CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] AC 1013 (HL) at 1059 said:

The pleading assumes that we are all neighbours now, Pharisees and Samaritans alike, that foreseeability is a reflection of hindsight and that for every mischance in an accident-prone world someone solvent must be liable in damages.

[94]      I endorse both sentiments. It is important that the Courts ensure that the  ambit of common law obligations are within acceptable boundaries for the benefit of society as a whole.

(c) Negligence - conclusion

[95]      On analysis, all of the factors relevant to the question whether a duty of care exists tell against the imposition of a duty in the terms proposed by Mr Henry. I therefore hold, as a matter of law, that a duty of care did not exist. The cause of action based on negligence must therefore be struck out.

7.   Breach of statutory duty

[96]      Mr Henry submits, in the alternative, that s125(1) of the Act itself creates an actionable private law duty, on the part of a probation officer, that can be enforced by a person in the position of Mr Hobson. He submits that the absence of a satisfactory sanction to discipline, or otherwise to hold accountable, a probation officer for failure to perform his or her statutory demands, as a matter of statutory construction, that s125(1) be interpreted to require such a duty.

[97]      In R v Deputy Governor of Parkhurst Prison and others ex parte Hague [1992] 1 AC 58 (HL) the House of Lords was confronted with an argument suggesting that the starting point for analysis (on a claim for breach of statutory duty) was whether a plaintiff belonged to a class of persons whom the statutory provision was intended to protect. Lord Bridge of Harwich summarised the argument as follows, at 158:

… It all depends, [counsel] submits, on whether he belongs to a class which the statutory provision was intended to protect and has suffered a detriment in consequence of a breach of the duty of a kind from which the provision was intended to protect him. If so, then in the absence of any other specific provision in the statute, such as a criminal penalty, to enforce performance  of the statutory duty, it necessarily follows, Mr Sedley submits, that the law affords a remedy in damages for its breach. Hence the question of statutory construction is not the broad question whether an intention to give a cause of action can be inferred from the provision in question read in its context, but the narrower question whether the provision is intended to protect the interests of a class of which the plaintiff is a member. This then leads on to

the conclusion that certain provisions of the Prison Rules 1964, which were intended to protect the interests of prisoners, and in particular r 43(2) which was intended to protect prisoners from unlawful segregation, must give rise to a cause of action in favour of any prisoner who suffers a detriment from a breach of the duty imposed.

[98]      Lord Bridge opined that the fallacy in that argument was that it rested on authorities relating to the imposition of statutory duties for no purpose other than to protect various classes of persons from the risk of personal injury: see His Lordship’s discussion of the point at 158-161. In particular, I refer to the way in which Lord Bridge posed what he termed “the fundamental question”: namely, “did the legislature intend to confer on the plaintiff a cause of action for breach of statutory duty?” (at 159). See also, to similar effect, Lord Jauncey of Tullichettle at 170-171.

[99]      Subsequently, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) the House of Lords held that the question whether Parliament intended to create a duty enforceable by private action was a question of statutory interpretation. The question is whether Parliament intended to impose liability if duties set out in the statute were breached. I set out two passages from the speech of Lord Browne- Wilkinson (with whom all other Law Lords expressly agreed):

a)At 731 His Lordship said:

The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.

b)And, at 732-733, he added:

Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity,

the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.

[100]   In Todd at 431, Professor Burrows (New Zealand’s pre-eminent academic writer on issues of statutory interpretation) concluded that when a statutory duty arises “is one of the law’s less certain areas”, He states:

In any topic which avowedly depends on the construction of legislation, it is unwise to expect firm principles. Accordingly, all the presumptions  and tests formulated by the courts are the weakest of guides and do little to produce certainty. Here matters are even less certain than usual, for the question involved is often a question of construction in only the loosest sense. If the words of the statute are unhelpful, a point is rapidly reached where it is difficult to disentangle how much has been objectively gleaned from the statute and the circumstances surrounding its passing, and how much is attributable to judicial policy. …

[101]   I would express myself differently. In my view, the correct approach is to interpret the statute to ascertain whether Parliament intended to create a private law remedy as well as to confer public duties on particular public officials. Other factors can only assist (and ought only to be considered) if Parliament’s will is not clear from the express words used in the Act read in light of the purpose of the statute. Such an approach is entirely consistent with s5 Interpretation Act 1999.

[102]   In analysing the duties imposed by s125(1) of the Act I reach the conclusion that Parliament intended to create only public, rather than a mix of public and private, obligations: see paras [51]-[60] above. For those reasons, the cause of action based on breach of statutory duty must also be struck out.

8.   Misfeasance in public office

(a)   What do the authorities say?

[103]   The tort of misfeasance in public office has undergone much judicial scrutiny in the last ten years. Over that period authoritative pronouncements on the scope of the tort have been given by the highest courts in Australia (Northern Territory of Australia v Mengel (1995) 185 CLR 307 (HCA)), England and Wales (Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 (HL) and Three

Rivers District Council v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 (CA and HL)) and Canada (Estate of Odhavji v Woodhouse [2003] 3 SCR 263 (SCC)). The tort has also been the subject of analysis in New Zealand: eg Garrett v Attorney-General [1997] 2 NZLR 332 (CA) and Rawlinson v Rice [1998] 1

NZLR 454 (CA).

[104]   The historical development of the tort was described in detail in the first instance judgment of Clarke J in Three Rivers District Council: see [1996] 3 All ER 558 (QBD) at 584-593. And the place of the tort, in the context of the general scheme of the law of torts, was outlined by Lord Steyn in Three Rivers at 190-191. His Lordship said:

It is well established that individuals in the position of the depositors cannot maintain an action for compensation for losses they suffered as a result of the Bank's breach of statutory duties: Yuen Kun-Yeu v Attorney General of Hong Kong [1988] AC 175; Davis v Radcliffe[1990] 1 WLR 821. Judicial review is regarded as an adequate remedy. Similarly, persons in the position of the depositors cannot sue the Bank for losses resulting from the negligent licensing, supervision or failure to withdraw a licence: Yuen Kun-Yeu v Attorney General of Hong Kong; Davis v Radcliffe. The availability of the tort of misfeasance in public office has been said to be one of the reasons justifying the non-actionability of a claim in negligence where there is an act of maladministration: Calveley v Chief Constable of the Merseyside Police[1989] AC 1228, 1238F. It is also established that an ultra vires act will not per se give rise to liability in tort: X (Minors) v Bedfordshire County Council[1995] 2 AC 633. And there is no overarching principle in English law of liability in tort for "unlawful, intentional and positive acts": see Lonrho Ltd v Shell Petroleum Co Ltd (No 2)[1982] AC 173, 187G in which the House refused to follow Beaudesert Shire Council v Smith (1966) 120 CLR 145, which was subsequently overruled by the Australian High Court in Northern Territory v Mengel (1995) 69 ALJR 527. The tort of misfeasance in public office is an exception to "the general rule that, if conduct is presumptively unlawful, a good motive will not exonerate the defendant, and that, if conduct is lawful apart from motive, a bad motive will not make him liable": Winfield & Jolowicz on Tort, 15th ed (1998), p 55; Bradford Corpn v Pickles [1895] AC 587; Allen v Flood[1898] AC 1. The rationale of the tort is that in a legal system based on the rule of law executive or administrative power "may be exercised only for the public good" and not for ulterior and improper purposes: Jones v Swansea City Council [1990] 1 WLR 54, 85F, per Nourse LJ; a decision reversed on the facts but not on the law by the House of Lords [1990] 1 WLR 1453, 1458. The tort bears some resemblance to the crime of misconduct in public office: R v Bowden [1996] 1 WLR 98. (my emphasis)

See   also    Mengel    at   345-348    (Mason CJ,   Dawson,    Toohey,    Gaudron   and McHugh JJ), 355-359 (Brennan J)) and 371-373 (Deane J) and Odhavji at paras [16]-

[32] (inclusive).

[105]         In Garrett, Blanchard J, delivering the judgment of the Court of Appeal, described the elements of the tort, at 344, as follows:

Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. Early in its development an essential ingredient was malice on the part of the defendant: a deliberate and vindictive act by a public official involving a breach of duty and directed towards the plaintiff. This has come to be known as "targeted malice". But the tort is no longer so confined. It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff. As will appear from the following discussion, "knowing" in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.

Some formulations of the ingredients of the tort are rather more relaxed than this about the element of damage: it is said that it is sufficient to establish the tort if the plaintiff has suffered harm or loss as a result of a knowing breach of duty by an official who foresaw or ought reasonably to have foreseen that consequence. Phrased in this way the tort would resemble a claim for negligent breach of duty although there would remain an additional requirement that the official must have known he or she was acting in breach of duty or must have been reckless as to that.

[106]         Broadly, the elements described by Blanchard J are in line with those applied in other jurisdictions.

[107]         There has been general acceptance of the proposition that an omission, as well as a deliberate act, can give rise to the tort: generally, see Garrett at 349-350, Three Rivers at 228 (Lord Hutton), 230 (Lord Hobhouse of Woodborough) and 236- 237 (Lord Millett), Mengel at 355 (Brennan J) and Odhavji at para [26]. Yet, all cases continue to stress the need for the requisite degree of knowledge to be proved: ie targeted malice or reckless indifference.

[108]         As Iacabucci J, said, for the Supreme Court of Canada, in Odhavji at para [37]:

… inadvertence or negligence will not suffice; a mere failure to discharge the obligations of the office cannot constitute misfeasance in a public office.

In light of the allegation that the [Chief of Police’s] failure to segregate the officers was deliberate, this is not a sufficient basis on which to strike the pleadings.

[109]         In Three Rivers, at 191-194 Lord Steyn discussed the elements of the tort. With reference to the degree of knowledge required to establish the tort Lord Steyn spoke, in the alternative, of a specific intention to injure a person or class of persons, including the plaintiff (targeted malice) or knowledge that there was no power to do the act of which complaint was made combined with knowledge that it would probably injure the plaintiff or a class of persons which included the plaintiff (reckless indifference).

[110]         While other members of the House of Lords expressed similar views on the degree of knowledge required to establish the tort, some expressed themselves in different ways. For example, Lord Hutton, at 227-228, preferred the use of the term “acting in bad faith”. That both Lord Steyn and Lord Hutton were articulating the same concept, in different words, can be seen from the fact that Lord Hope of Craighead agreed with both on the essential elements of the tort and the requirements which must be satisfied: at 197.

[111]         To similar effect, Lord Hobhouse of Woodborough regarded the tort of misfeasance in public office as applying to the holder of a public office who does not honestly believe that what he or she is doing is lawful, thus putting issues of bad faith or abuse of power at the heart of the tort: at 229.

[112]         Lord Millett emphasised that the tort could not be committed negligently or inadvertently because, at its core, was the notion of abuse of power, involving concepts such as dishonesty, bad faith and improper purpose: at 235.

[113]         Of importance is the fact that all of the expressions used focus, as Lord Millett said, on “subjective states of mind”: at 235.

[114]         In New Zealand the Court of Appeal, in Garrett, (decided after Clarke J’s judgment in Three Rivers but before the decision of the House of Lords), held that it was insufficient for a plaintiff to demonstrate foreseeability of damage caused by a

knowing  breach  of  duty by a public officer.    Rather, Blanchard J (delivering the judgment of the Court) said at 349-350:

The plaintiff, in our view, must prove that the official had an actual appreciation of the consequences for the plaintiff, or people in the general position of the plaintiff, of the disregard of duty or that the official was recklessly indifferent to the consequences and can thus be taken to have been content for them to happen as they would. The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a situation in which the official's act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions, even if other consequences form the primary motive. … The concept of attributing intention by necessary inference in this way is well established.

[115]         The Court went on to discuss the underlying reason for the imposition of this form of tortious liability. Justice Blanchard described it as being “to prevent the deliberate injuring of the public by deliberate disregard of official duty”. The Court of Appeal also expressed the view that “this intentional tort should not be allowed to overflow its banks and cover the unintentional infliction of damage”: at 350.

[116]At 351, the Court concluded:

The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance of public office that something more, it seems to us, must be related to the individual who is bringing the action. While the cases have made it clear that the malice need not be targeted there must, as we have said, be a conscious disregard for the interests of those who will be affected by the making of the particular decision. (my emphasis)

See also the discussion of the tort in Todd at 972-977.

(b)   Can Mr Hobson sue for the tort of misfeasance in public office?

[117]         Having held that Mr Hobson has no remedy in negligence or for breach of statutory duty the question is whether he is entitled to sue for misfeasance in public office.

[118]         Two quite distinct sets of allegations are made by Mr Hobson to support his claim for misfeasance in public office. The first (set out in para [35] above) alleges failures on the part of the individual probation officer responsible for supervision of Mr Bell’s conditions of parole. Separately, (see para [37] above) allegations of systemic failure are made against the Area and Regional Managers of the Department of Corrections. Mr Garrett, for Mr Hobson on this issue, argued that the facts as pleaded, if proved at trial, would establish the tort of misfeasance in public office.

[119]         Is there any reason in principle why the tort should not be available in a case such as this? Provided a member of the public can point to particular loss or damage he or she has suffered as a result of the acts or omissions of a public official (acting with the requisite degree of knowledge) while performing public functions, no reason in principle exists to withhold availability of the tort. Protection against  unjust suits lies in the degree of knowledge that must be proved to establish liability. Rather than proving that someone simply failed to do something he or she ought to have done, it is necessary for a plaintiff to establish that the public official acted either with targeted malice or reckless indifference.

[120]         This particular case raises two problematic issues, neither of which appears to have been the subject of a fully reasoned judicial decision or academic analysis. Those two issues are:

a)Whether some or all of the allegations of systemic failures are justiciable?

b)Whether an omission to act can give rise to the tort and, if so, what is the requisite intention on the part of the public official, to be proved?

[121]         Both the individual and systemic failures pleaded require analysis in light of those two issues. The question of justiciability raises an issue as to the respective functions of the three branches of Government. The question of omission brings into focus the nature of an omission that gives rise to the tort. I deal with each issue in turn.

(c)   Justiciability

[122]         When issues of “justiciability” arise it is desirable to explain what one means. While I am of the school of thought that believes that there are areas into which the courts ought, generally, not to go, I accept that, in marginal cases, the boundaries are not easy to define. In referring to justiciability in this judgment I pose the question whether or not the particular issue under consideration ought to be the subject of an inquiry by the Court. That approach is consistent with the judgment of the (English) Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 (CA) at para [12], per Sedley LJ, in which His Lordship referred to the distinction between issues capable and not capable of being determined by the Courts.

[123]         The Constitution Act 1986 recognises the three branches of Government: Parliament, the Executive and the Judiciary: see Parts 2, 3 and 4 of that Act.

[124]         Each branch of Government ought to defer to the proper role of another in appropriate circumstances. For that reason, generally the Courts will not embark on inquiries into decisions of the Executive in cases involving such issues as national security (see Choudry v Attorney-General [1999] 3 NZLR 399 (CA) at 403-406; cf the dissenting view of Thomas J at 410-412) or areas properly within the purview of Parliament (see Article 9 of the Bill of Rights 1688) (UK) and Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC)).

[125]         The proper deference shown by one branch of Government to another is, itself, part of a dynamic process by which the constitutional institutions each act to check and balance the actions of others. In some ways it is the perceived likely response of one branch of Government to the actions of another that provides the constraint that inhibits one branch from straying into the proper arena of another.

[126]         For the purposes of this case, the role of each of the three branches of Government can be summarised, at least in general terms, as follows:

a)Parliament has decreed what duties are to be fulfilled by the public official responsible for supervising compliance, by a released prisoner, with his or her conditions of parole. At the relevant time Parliament spoke through s125(1) of the Act. When it comes into force, it will speak through s25 of the Corrections Act 2004.

b)The Executive arm of Government is obliged to provide an institutional infrastructure and sufficient resources to enable the functions and duties conferred upon the relevant public official to be performed. Once Parliament has appropriated money, the responsibility for making such decisions rests with the Chief Executive of each Department of State. The Chief Executive’s responsibility is to his or her Minister. The Chief Executive’s responsibilities are set out in s32 of the State Sector Act 1988 as follows:

32 Principal responsibilities

The chief executive of a Department shall be responsible to the appropriate Minister for—

(a)        The carrying out of the functions and duties of the Department (including those imposed by Act or by the policies of the Government); and

(b)       The tendering of advice to the appropriate Minister and other Ministers of the Crown; and

(c)The general conduct of the Department; and

(d)      The efficient, effective, and economical management of the activities of the Department.

c)If an issue arises over whether a particular public official has acted in a manner that conflicts with his or her public obligation and the aspect under review is one that can be characterised as of a legal nature (as distinct from one of a substantially budgetary, managerial or political nature) the Courts, as the third arm of Government, have responsibility to determine whether the official has acted within or outside the law.

That analysis accords with the succinct observation of Lord Templeman in M v Home Office [1984] 1 AC 377 (HL) at 395. Lord Templeman said:

… Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law.

In that way, the three branches of Government work together to promote what is generally called “the rule of law”.

[127]          I see an important distinction between the responsibilities set out in the first part of s32(a) and those set out in the balance of s32. Section 32(a) is directed to the need to comply both with functions and duties imposed by statute and by policies of the government. To the extent, at least, that functions and duties are conferred upon  a public official for whom a Chief Executive has responsibility by statute, a legal obligation is created which may properly be enforced by the Courts. Generally,  other functions, of a substantially budgetary, managerial or political character, will be immune from review by the Courts on the basis that those responsibilities ought properly to be regarded as within the discretion of the Executive. The Executive is answerable to the electorate through questions posed in Parliament to a responsible Minister. Courts should be slow to superimpose judicial forms of accountability  over effective electoral methods of accountability.

[128]         One rationale for the tort of misfeasance in public office is that, “in a legal system based on the rule of law executive or administrative power ‘may be exercised

only for the public good’ and not for ulterior and improper purposes”: Three Rivers

at 190 per Lord Steyn.

[129]         If that rationale were correct (and in my view it is) some remedy ought to be available where it can be proved that public functions conferred on a public official by Parliament have not been performed because of either targeted malice or reckless indifference on the part of the public official concerned or, in justiciable matters, someone responsible for ensuring that those duties are performed. The latter  category also brings into focus the responsibilities placed on the Chief Executive of a Department by the first part of s32(a) of the State Sector Act 1988.

[130]         Misfeasance in public office is a private law action, notwithstanding the fact that it only operates against a person misusing a public office. There has been considerable debate recently over the extent to which public law concepts ought to intrude into the private law of torts: cf Stovin v Wise [1986] AC 923 (HL) and Gorringe v Calderdale Metropolitan Borough Council. In Stovin v Wise, Lord Hoffmann, speaking for a majority of the House of Lords, said at 953:

I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.

[131]         Lord Hoffmann explained those comments in Gorringe, at para [26]. Lord Hoffmann said:

This was the reasoning by which the majority in Stovin v Wise came to the conclusion that the council owed no duty to road users which could in any circumstances have required it to improve the intersection. But misunderstanding seems to have arisen because the majority judgment goes on to discuss, in the alternative, what the nature of such a duty might have been if there had been one. It suggests that it would have given rise to liability only if it would have been irrational in a public law sense not to exercise the statutory power to do the work. And it deals with  this alternative argument by concluding that, on the facts, there had been no breach even of such a duty.  The suggestion that there might exceptionally  be a case in which a breach of a public law duty could found a private law right of action has proved controversial and it may have been ill-advised to speculate upon such matters.

[132]         As I see it, there is a fundamental difference between obligations of a legal character and other obligations. As indicated earlier, the Chief Executive of a Department is responsible to his or her Minister to carry out functions and duties of the Department, including those imposed by Act of Parliament. Courts are not inclined, in my view quite properly, to substitute a judicial view for the judgment of public officials who have responsibility for the allocation of resources: see R v Central Birmingham Health Authority, ex parte Collier, quoted in de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5^th ed) at para 6-032.

[133]         In the administrative law context there is some authority to suggest that this Court (exercising its supervisory jurisdiction) will interfere, even in cases involving allocation of resources, if the decision could not have been reached by any rational official: generally, see, Taylor Judicial Review: A New Zealand Perspective (1991, Butterworths) at para 1.26. See also R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898 (CA).

[134]         But, a good example of a case in which a New Zealand court was not prepared to interfere with decisions made by medical authorities about allocation of resources is Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA).

[135]         In my view, there is no reason in principle why acts or omissions of a public official cannot be considered by a Court when the obligation in issue is a legal obligation imposed by statute. The obligation of the Court is to enforce the law. Whether that be done through administrative law remedies (such as judicial review) or through the imposition of liability when a tort is established (as may be the case with the tort of misfeasance in public office) is beside the point. Provided there is a legal obligation the Courts are entitled to enforce it. Whether such a legal obligation exists is a matter for the Courts to determine on orthodox and well known principles.

(d)   Omissions and requisite knowledge

[136]         The possibility of the tort biting in a case involving nonfeasance was, at least, left open by our Court of Appeal in Garrett at 349-350: see para [114] above.

The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a situation in which the official’s act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying that the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions even if other consequences form the primary motive. … (my emphasis)

See also the extract from Garrett at 344, set out in para [105] above.

[137]         That approach to omissions was confirmed, at least in general terms, in opinions given in Three Rivers by Lord Hutton, (at 228), Lord Hobhouse of Woodborough (at 230) and Lord Millett (at 236-237). The approach was also endorsed, after citation of the passage to which I have referred from Garrett, by the unanimous judgment of the Supreme Court of Canada in Odhavji at para [26]. Delivering the judgment of the Court, Iacabucci J said:

… In Three Rivers, …, Lord Steyn stated, at [190], that “[t]he rationale of the tort is that in a legal system based on the rule of law executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes” as each passage makes clear, misfeasance in a public office is not directed at a public officer who inadvertently or negligently fails adequately to discharge the obligations of his or her office: see Three Rivers at [237] per Lord Millett. Nor is the tort directed at a  public officer who fails adequately to discharge the obligations of the office as a consequence of budgetary constraints or other factors beyond his or her control. A public officer who cannot adequately discharge his or her duties because of budgetary constraints has not deliberately disregarded his or her official duties. The tort is not directed at a public officer who is unable to discharge his or her obligations because of factors beyond his or her control but, rather, at a public officer who could have discharged his or her obligations, yet wilfully chose to do otherwise. (emphasis in original)

[138]         Any probation officer who is required by law to supervise the terms of release on parole of a particular prisoner will realise that a consequence of failing to supervise is the likelihood of re-offending. That must be so because the whole purpose of the supervisory regime is to manage the risk of re-offending. If the supervisory regime fails the risk of re-offending necessarily increases.

[139]         Equally, it can be said that those who make decisions within the Government agency employing the public official responsible for supervision do so with knowledge that any failure to ensure that the probation officers are equipped to fulfil the duties imposed by statute will undermine the public official’s ability to carry out the supervisory tasks imposed by Parliament. In that sense, public officials who are responsible for systemic failures are also likely to realise that such failures will increase the likelihood of re-offending, and therefore the possibility of loss of the type claimed in this case.

[140]         Nevertheless, ultimately Courts must ensure, if a claim is based on omission, that the nature of the tort is not changed. In Garrett, the Court of Appeal emphasised that the tort ought not to be allowed to intrude into unintentional infliction of damage: see para [115] above.

[141]The specific issue arising from omissions was considered by Lord Millett in

Three Rivers at 236-237. His Lordship said:

The parties are agreed that there is no conceptual difference between sins of omission and sins of commission. That may be so; but factually there is a great difference between them. It is no accident that the tort is misfeasance in public office, not non-feasance in public office. The failure to exercise a power is not in itself wrongful. It cannot be equated with acting in excess of power. The tort is concerned with preventing public officials from acting beyond their powers to the injury of the citizen, not with compelling them to exercise the powers they do have, particularly when they do have a discretion whether to exercise them or not. There seems to be only one case in the books where a failure to exercise a power gave rise to the tort: R v Dythan [1979] QB 722, 727G, where Lord Widgery CJ said in terms that the neglect must be “wilful and not merely inadvertent”. Ferguson v Earl of Kinnoull (1842) 9 Cl & Fin 251 and the cases there cited were all cases of wilful breach of duty. Henly v Lyme Corpn 5 Bing 91 was in my opinion a case of breach of statutory duty, not of misfeasance in public office.

In conformity with the character of the tort the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion, a failure to act can amount to misfeasance in public office only where:

(i)The circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act;

(ii)The official appreciates this but nevertheless makes a conscious decision not to act;

(iii)He does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act. (my emphasis)

[142]         With respect, the analysis of Lord Millett on the issue of omission is both compelling and unanswerable. It retains the appropriate distinction between negligent acts (not covered by the tort of misfeasance in public office) and wilful or reckless acts (which are covered). It requires positive proof of a deliberate decision not to act in the circumstances described in subparas (i)-(iii) of the above extract. In my view, Lord Millett’s analysis is consistent with (and does not undermine any of) the observations of the Court of Appeal, in Garrett, set out in para [114] above.

[143]         In my view, the need for a conscious decision not to act arises out of the nature of an omission. Either there is a deliberate decision not to do something that ought to be done or it is inadvertent. To come within the class of case covered by an intentional tort, a deliberate act is required.

[144]         It is now necessary to consider whether the existing pleading should be struck out.

(e)   Application to pleading in this case

[145]         The claim based on misfeasance in public office may be capable of reformulation, but will require major surgery.

[146]         First, it will be necessary for the plaintiff to identify precisely the allegations of misfeasance in public office he makes. As matters presently stand, there are two distinct claims: one arising out of omissions on the part of the relevant probation officer, the other arising from systemic failures alleged to have been caused by officials responsible for delivering probation services. Care must be taken to plead precisely what the particular official is alleged not to have done. Care will also need to be taken in identifying the appropriate defendants to the proceeding and in determining whether vicarious liability will attach to particular acts or omissions pleaded. To date, the Crown has taken a benevolent view as to the need to plead the

defendant precisely. Given the dual nature of the allegations more precision may be necessary.

[147]         To assist the parties I make some general comments in relation to the allegations summarised in paras [35] and [37] above:

a)The allegations set out in para [35](a)-(d) and (g) and (h) all refer to omissions. It will be necessary for the plaintiff to plead particulars from which an inference could be drawn that those failures to act were deliberate.

b)The allegations summarised in para [37](e) and (f) refer to positive actions on the part of the probation officer. Those allegations will fall to be considered on orthodox principles summarised in the cases to which I have referred.

c)The basis upon which the allegations of systemic failure are made may require further particularisation. On the basis of the argument I have heard to date, I would limit allegations of systemic failure to those caused by a deliberate decision by an official within the Department of Corrections likely to have the consequence that the relevant probation officer was unable to perform duties cast upon him or her by law under s125 of the Act.

d)Generally, allegations about inadequate resourcing (eg those summarised in para [37](a) and (b)) and allegations as to management of staff within the Department of Corrections (eg the allegations summarised in para [37](e) and (f)) are likely to fall within those categories of duties into which the Court will not inquire, being decisions of a managerial or budgetary nature for which the responsible Minister is answerable in Parliament. Nevertheless, such allegations, if capable of proof, might well assist the plaintiff as particulars tending to suggest failures to act were deliberate rather than inadvertent.

e)The remaining allegations summarised in para [37] may or may not fall within the categories of claim I have held could proceed under the cause of action based on misfeasance in public office. It will be necessary for the plaintiff’s advisers to consider carefully how those particular aspects ought to be characterised.

[148]         In relation to the particulars given in the proposed Third Amended Statement of Claim, I add a short comment on the defence raised under s6(5) of the Crown Proceedings Act 1950.

[149]         Mr Pike submitted that the relevant probation officers were administering a sentence of the Court and the conditional release of Mr Bell ordered by a judicial body, the Parole Board. Section 6(5) of the Crown Proceedings Act 1950 states:

6 Liability of the Crown in tort

(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

[150]         I am not prepared to strike out the claim on the basis of s6(5). Although there is no claim based on the public law cause of action recognised by the Court of Appeal in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667, the Court of Appeal, in that case, held that s6(5) only protects the Crown when its agents are “discharging or purporting to discharge” responsibilities in connection with the execution of a judicial process. They held that the immunity did not extend to bad faith. Something akin to bad faith would need to be established for the cause of action based upon misfeasance in public office to succeed. Hence, I am not prepared to strike out the claim on that basis. Generally, see Baigent’s Case at 674 (Cooke P), 690 (Casey J), 696 (Hardie Boys J), 715 (Gault J) and 716 (McKay J).

9.   Conclusions

[151]For the reasons I have given:

a)The cause of action based on negligence is struck out;

b)The cause of action based on breach of statutory duty is struck out;

c)The cause of action based on misfeasance in public office will require amendment.

[152]To give effect to those conclusions, I make the following orders:

a)The application to strike out is granted in respect of the causes of action based on negligence and breach of statutory duty but is dismissed in other respects.

b)I direct that a further Amended Statement of Claim shall be filed and served by 5pm on 22 October 2004.

c)A Statement of Defence to the further Amended Statement of Claim shall be filed and served by 5pm on 19 November 2004.

d)The Registrar shall set this proceeding down for a case management conference on the first available date after 19 November 2004, preferably before a Judge.

e)Leave to apply on 3 days’ notice is reserved to either party.

[153]         If, after considering this judgment, Mr Henry forms the view that the claim cannot be amended, the plaintiff may apply, under leave reserved, to have the remaining cause of action struck out so that any challenge to my decision can be made at one time to the Court of Appeal. Similarly, if after the filing of a further Amended Statement of Claim the Attorney wishes to apply to strike out the amended

claim a fresh application can be filed. I am not, however, to be taken as encouraging that course of action.

[154]         The issues raised before me have been novel. In the circumstances, I make  no order for costs on the application to strike out.

[155]I thank counsel for their assistance.

P R Heath J

Delivered at 2.25pm on 23 September 2004