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Res Ipsa

Couch v Attorney-general (on Appeal From Hobson v Attorney-general) [2008] NZSC 45, 13 June 2008

Court
Supreme Court
Judgment
13 June 2008
Neutral
[2008] NZSC 45

Areas of law

Tort - Negligence - Duty of Care - Public Authorities - Third Party Liability - Exemplary Damages
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Judgment analysis

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Facts

Ms Couch was seriously injured by William Bell during a robbery at the Returned Services Association (RSA) where she worked. Three of her colleagues were killed. At the time, Bell was on parole for aggravated robbery and under the supervision of the Probation Service. Ms Couch's claim is for exemplary damages, alleging that the Probation Service was grossly negligent in its supervision of Bell. The alleged failures include that the supervising probation officer was inexperienced and overworked, the supervising branch was under-resourced, and that Bell, who was assessed as being at high risk of reoffending (particularly related to alcohol abuse), was not provided with the mandatory rehabilitation programmes required as conditions of his parole. A key allegation is that the Probation Service permitted Bell to be placed for work experience at the RSA, an environment with access to alcohol and cash which exacerbated his risk of reoffending, and failed to warn the RSA of the risk he posed.

Held

  1. A claim in negligence against the Probation Service for failing to exercise reasonable care in the supervision of a parolee who subsequently causes serious harm is not so clearly untenable that it should be struck out before trial.
  2. Whether the Probation Service owes a duty of care to a person harmed by a parolee is an arguable question of law that requires a full examination of the facts at trial, particularly regarding the knowledge of risk held by the Service, the statutory context of its obligations, and the relationship between the Service and the victim.

Blanchard, Tipping and McGrath JJ (reasons given by Tipping J) concurring.

Orders

The appeal is adjourned to allow the parties to file memoranda on whether the availability of exemplary damages should be determined before trial. If a further hearing is not required, orders reinstating the proceedings will be made.

Key passages9

A claim should only be struck out if it is clear that it cannot succeed as a matter of law. If a duty of care cannot confidently be excluded, the claim must be allowed to proceed.

“It is only if it is clear that the claim cannot succeed as a matter of law that it can be struck out.”

A duty of care to prevent harm inflicted by a third party does not necessarily require the plaintiff to be a member of an 'identifiable and sufficiently delineated class' at 'special risk'. The existence of a duty turns on a broad inquiry into the relationship of proximity.

“Requiring such test to be satisfied in all cases where harm results from third party intervention seems to us to introduce undesirable relational rigidity into the general organising principles for the tort of negligence applied in New Zealand...”

A duty of care in negligence is related to risk: 'risk imports relation'.

“Cardozo CJ famously said of duty of care in negligence that 'risk imports relation'.”

A stand-alone claim for exemplary damages is preserved by s 319 of the Injury Prevention, Rehabilitation, and Compensation Act 2001.

“An ability to claim exemplary damages for conduct by the defendant that has resulted in personal injury is, however, specifically preserved by s 319 of the 2001 Act, as it had been under s 396 of the 1998 Act.”

To succeed in a claim for exemplary damages for negligence, the plaintiff must establish the defendant's conduct was 'truly exceptional and outrageous' and deserving of punishment.

“To succeed in a claim for exemplary damages based on negligence, on present authority Ms Couch will have to establish that the departure from the standard of care reasonably to be expected constituted 'truly exceptional and outrageous' conduct.”

Policy considerations are relevant to duty of care, breach, and remoteness, and may be better addressed at trial in the context of breach rather than on a strike-out application for no duty of care.

“Lord Morris thought the policy argument against liability in Dorset Yacht ... was relevant to breach, rather than duty of care.”

The fact that the direct cause of injury was the deliberate conduct of a third party does not prevent a defendant from being liable for their lack of care if that lack of care is causative of the loss.

“The fact that the direct cause of injury to Ms Couch was the deliberate conduct of Bell, a third party, does not prevent the Probation Service from being liable for its lack of care in Bell’s supervision, if that want of care is causative of loss. Dorset Yacht established as much.”

Statutory obligations and powers may create a sufficient relationship of proximity between a statutory authority and a person suffering harm to give rise to a duty of care, particularly where individuals cannot reasonably protect themselves.

“We accept that proximity between a statutory body and a plaintiff who has suffered harm is not readily to be assumed whenever statutory duties and powers could reasonably have been used to avoid foreseeable loss. But the statutory obligation is we think highly relevant to the judgment of sufficient proximity between plaintiff and statutory authority to give rise to an actionable duty of care.”

To establish proximity for a duty of care in a third-party liability case, the plaintiff must demonstrate that, as an individual or as a member of an identifiable and sufficiently delineated class, they were known to be subject to a distinct and special risk of suffering the harm.

“To establish a duty of care Ms Couch must demonstrate that, either as an individual or as a member of an identifiable and sufficiently delineated class, she was or should have been known by the defendants to be the subject of a distinct and special risk of suffering harm of the kind she sustained at the hands of Bell.”

Cases mentioned in judgment

  • Anns v London Borough of Merton [1978] AC 728

    Followed
  • Attorney-General v Carter [2003] 2 NZLR 160

    Applied
  • Barrett v Enfield London Borough Council [2001] 2 AC 550

  • BM v British Columbia (unreported, British Columbia Court of Appeal, 22 July 2004)

  • Bottrill v A [2003] 2 NZLR 721

    Applied
  • Bourhill v Young [1943] AC 92

  • Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 (CA)

  • Brown v Heathcote County Council [1986] 1 NZLR 76

  • Caparo Industries Plc v Dickman [1990] 2 AC 605

  • Carmarthenshire County Council v Lewis [1955] 2 WLR 517 (HL)

  • Cooper v Hobart [2001] 3 SCR 537

  • Cooper v van Heeren [2007] 3 NZLR 783

  • Daniels v Thompson [1998] 3 NZLR 22

  • Donoghue v Stevenson [1932] AC 562

    Applied
  • Donselaar v Donselaar [1982] 1 NZLR 97

  • D’Arcy v Prison Commissioners “The Times”, November 17, 1953

  • Ellis v Home Office [1953] 2 All ER 149 (CA)

  • Fisher v Ruislip-Northwood Urban District Council [1945] 1 KB 584 (CA)

  • General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

    Applied
  • Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057

  • Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210

  • Haynes v Harwood [1935] 1 KB 146

  • Hendrick v De Marsh (1984) 6 DLR (4th) 713

  • Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (HL)

    Distinguished
  • Hobson v Attorney-General [2005] 2 NZLR 220

  • Hobson v Attorney-General [2007] 1 NZLR 374

  • Home Office v Dorset Yacht Company [1970] AC 1004

    Applied
  • Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC)

    Followed
  • Jane Doe v Metropolitan Toronto (Municipality) Commissioner of Police (1998) 160 DLR (4th) 697

  • Just v British Columbia [1989] 2 SCR 1228

  • Kamloops v Nielsen [1984] 2 SCR 2

  • Kemp & Dougall v Darngavil Coal Co Ltd [1909] SC 1314

  • Lonrho plc v Tebbit [1991] 4 All ER 973

    Applied
  • Marc Rich & Co AG v Bishop Rock Marines Co Ltd [1996] 1 AC 211

  • Marshall Futures Ltd v Marshall [1992] 1 NZLR 316

  • Maulolo v Hutt Valley Health Corporation Ltd [2002] NZAR 375 (HC)

  • Mersey Docks and Harbour Board Trustees v Gibbs (1866) 1 LR HL 93

    Applied
  • Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

  • New Zealand Social Credit Political League v O’Brien [1984] 1 NZLR 84

  • Osman v Ferguson [1993] 4 All ER 344 (CA)

  • Palmer v Tees Health Authority (1998) 45 BMLR 88 (QB)

  • Palsgraf v Long Island Railroad Company (1927) 248 NY 339

    Applied
  • Pyrenees Shire Council v Day (1998) 192 CLR 330

  • Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324

  • Rowling v Takaro Properties Ltd [1987] 2 NZLR 700 (PC)

  • S v Attorney-General [2003] 3 NZLR 450

  • S v Midcentral District Health Board (No 2) [2004] NZAR 342 (HC)

  • SB v State of New South Wales (2004) 13 VR 527

  • Smith v Leurs (1945) 70 CLR 256

    Applied
  • Smith v Littlewoods Ltd [1987] AC 241

  • South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 (CA)

    Followed
  • Stansbie v Troman [1948] 2 KB 48 (CA)

  • State of New South Wales v Godfrey [2004] NSWCA 113

  • Stovin v Wise [1996] AC 923

  • Sutherland Shire Council v Heyman (1985) 157 CLR 424

  • Swan v State of South Australia [1994] 62 SASR 532

  • Swinney v Chief Constable of the Northumbria Police Force [1997] QB 464

  • Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314

    Applied
  • W v Essex County Council [2001] 2 AC 592

    Applied
  • Wellington District Law Society v Price Waterhouse [2002] 2 NZLR 767

  • X v Bedfordshire County Council [1995] 2 AC 633

    Applied

Legislation mentioned

  • Injury Prevention, Rehabilitation, and Compensation Act 2001, s 317(1), s 319
  • Accident Insurance Act 1998, s 396
  • Criminal Justice Act 1985, s 107B, s 107B(d), s 107B(e), s 107C, s 125, s 125(1)(a), s 125(1)(b)
  • Crown Proceedings Act 1950, s 6
  • New Zealand Bill of Rights Act 1990, s 27(3)
  • High Court Rules, r 418, r 419