NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE WITNESS IDENTIFIED IN [13], [64] AND [65] OF THE JUDGMENT IN [2018] NZHC 2330 AND [93(c)] OF THIS JUDGMENT. SEE PARAGRAPH [107].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-001149 [2025] NZHC 30
IN THE MATTER OF a claim of historic sexual abuse
BETWEEN MARIYA ANN TAYLOR
Plaintiff
AND ROBERT ROPER
First Defendant
ATTORNEY-GENERAL
Second Defendant
Hearing: 31 October 2024
Appearances: G F Little SC and D B Beard for Plaintiff
J F Mather and L M Herbke for First Defendant A C M Fisher KC and E N C Lay for Second Defendant
Judgment: 28 January 2025
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 28 January 2025 at 11.00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Counsel/Solicitors:
G F Little SC, Auckland Legal Street, Auckland J F Mather, Auckland
Corban Revell, Auckland
A C M Fisher KC, Auckland Crown Law Office, Wellington
TAYLOR v ROPER [2025] NZHC 30 [28 January 2025]
[1] Ms Taylor seeks an award of exemplary damages against the second defendant (sued in respect of the Royal New Zealand Air Force, referred to as the RNZAF in this judgment). Her claim arises out of the sexual abuse and false imprisonment she suffered at the hands of Mr Roper when they were both in the RNZAF in the 1980s.
[2] Exemplary damages are in a different category to those routinely sought in a civil claim. Rather than compensating for harm suffered, they are aimed at punishing a wrongdoer for outrageous conduct and deterring the wrongdoer and others from acting in the same way. Words like “contumelious”, “high-handed”, “oppressive” and “wilful” are used to describe the sort of conduct which attracts an award of exemplary damages.1
[3] The claim for exemplary damages against the RNZAF is the only part of Ms Taylor’s claim which remains. Proceedings were commenced in 2016. The trial took place in 2018 and the first High Court judgment was issued that year.2 Appeals from the judgment then followed, culminating in a Supreme Court decision which confirmed that Ms Taylor’s claim for compensation was barred by the Accident Compensation Act 2001 (ACC Act).3 The claim for exemplary damages was remitted to this Court for determination. Subsequently, Ms Taylor discontinued her claim for exemplary damages against Mr Roper. She proceeds only against the RNZAF.
[4] The claim for an award of exemplary damages is opposed by the RNZAF. The RNZAF says the claim cannot be established at law as exemplary damages are not awarded in cases of vicarious liability, and the Crown cannot be sued directly in tort. More importantly, it says that its conduct falls far short of that which would attract an award of exemplary damages, and an award would not act as a deterrent given the changes that have occurred in the last 30 years in the way abuse…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Taylor v Roper [2025] NZHC 30
Case
[2025] NZHC 30
Decision Date
CaseChat Overview and Summary
Mariya Ann Taylor sought an award of exemplary damages against Robert Roper (the first defendant) and the Royal New Zealand Air Force (RNZAF, the second defendant) for sexual abuse and false imprisonment she suffered at the hands of Mr Roper in the 1980s. The claim against the RNZAF was the only part of Ms Taylor's claim that remained. Ms Taylor's claim for exemplary damages was opposed by the RNZAF on the basis that the claim could not be established at law as exemplary damages are not awarded in cases of vicarious liability, and the Crown cannot be sued directly in tort. More importantly, it said that its conduct fell far short of that which would attract an award of exemplary damages, and an award would not act as a deterrent given the changes that have occurred in the last 30 years in the way abuse complaints are handled in the RNZAF. Ms Taylor also sought leave to adduce a report prepared by Ms Frances Joychild KC in 2018 as evidence in the proceeding. This report followed an independent inquiry established by the Chief of the RNZAF into the way the RNZAF handled complaints relating to Mr Roper’s conduct in the 1980s. The RNZAF opposed the application on the basis that it comprises hearsay and opinion statements and is not cogent of the issues in dispute. Moreover, it was available to Ms Taylor’s lawyers prior to trial, as were the statements of some of those interviewed by Ms Joychild for the inquiry. Many of these interviewees were called as witnesses at trial. The application to adduce the Joychild report as evidence was declined. The claim for exemplary damages was dismissed. The Court held that exemplary damages are not awarded in cases of vicarious liability and that the Court of Appeal had held that the effect of s 6 of the Crown Proceedings Act 1950 means that that the RNZAF cannot be sued directly in tort. The Court was bound by the decisions of the Court of Appeal. The Court also held that the evidence did not meet the high threshold fixed by the Supreme Court for exemplary damages awards in cases of negligence. There was no evidence that the RNZAF deliberately ran the risk that Ms Taylor would be harmed, let alone acted outrageously or wilfully in doing so. Moreover, the deterrent purpose of an award of exemplary damages would not be met given the changes made in the RNZAF in the last 30 years. There was no other reason to award exemplary damages against the RNZAF in this case.