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Accident Compensation Cases

Hobson v Attorney-General (CA, 17/05/06)

Judgment Text

The appeal is dismissed. 
An order is made striking out the entire statement of claim. 
Costs are reserved. 
The question of law posed for the consideration of this Court is answered thus: the statement of claim discloses no reasonable cause of action and should be struck out. 
Costs are reserved. 
Order prohibiting publication of name or particulars likely to lead to the identification of witness X's name. 
Hammond J
This is an appeal from a decision of Heath J reported in [2005] 2 NZLR 220, on a strike-out application. 
In 1997, Mr William Bell was sentenced to five years imprisonment following his conviction for the aggravated robbery of a service station. This robbery involved the use of a blunt instrument on the sole attendant, who escaped further injury only after locking himself in a bathroom. 
As required by the legislation in force at that time, Mr Bell was released on parole on 4 July 2001 when he had served two-thirds of the finite term of imprisonment imposed upon him. 
A number of special conditions were imposed on Mr Bell. He was: 
to make an appointment within 72 hours of release with a departmental psychologist and thereafter to keep such appointments and attend such counselling as was directed by his probation officer; 
to undertake such employment as was directed by his probation officer; 
to complete an assessment for the Straight Thinking Programme as directed by his probation officer; 
to make an appointment within 72 hours of his release for alcohol and drug assessment, to keep such appointment, and following assessment to undertake counselling as directed by his probation officer; and 
to reside at a specified address or an address approved by his probation officer. ”
Mr Bell was initially placed under the supervision of a senior probation officer. However, shortly afterwards his supervision passed to X. X was a newly appointed probation officer, of some 10 months standing, who was working at the Mangere Community Corrections Service. 
It is convenient to note here that, at the hearing in this Court, an order was made for the suppression of X's name until further order of this Court. That order is still in full force and effect. 
Whilst still under X's supervision, and, it is alleged, with her knowledge, Mr Bell was accepted into a liquor licensing course with a view to obtaining employment in the liquor retailing industry. As part of the liquor licensing course, Mr Bell was assigned to work at the Panmure RSA Club. It is claimed that X was aware that Mr Bell was undertaking this work. If X was not so aware, it is claimed she took no steps to ascertain what he was doing to comply with his release conditions. 
The tragic events of 8 December 2001 which led to the proceeding now before us were described by this Court in Mr Bell's criminal appeal (CA80/03 7 August 2003) in the following terms: 
Bell entered the [Panmure RSA] premises with [a] shotgun at about 7.30am. Two people were already there and two more subsequently arrived. One of those originally present let him in as she recognised him and had no reason at that stage to know his purpose. Once inside Bell forced one of the victims to open the safe from which he took a sum of money. He then callously and systemically bludgeoned each of the four people in turn with the butt of the shotgun, after having shot one of them in the chest. Three of the victims died. One [the second appellant, Ms Couch] survived her ordeal; albeit grievously injured. She was the subject of the attempted murder conviction and is left with neurological damage of a substantial and permanent kind. ”
Mr Bell was convicted of three counts of murder, and one count of attempted murder. He was sentenced to life imprisonment with a minimum non-parole period of 30 years. 
The respondent acknowledges blame 
We record that Mr Pike, for the Department of Corrections in New Zealand (which is represented by the Attorney-General in these proceedings), acknowledged that the Department must take a real measure of responsibility for the errors which undoubtedly occurred in the handling of Mr Bell's case. The Department sincerely regrets the awful consequences which resulted for the victims and their families. 
However, what is in issue before us is whether the respondent's role in what occurred so tragically on 8 December 2001 is actionable; by that I mean, whether there is any possible claim that the claimants can mount, in law, against the respondent. 
The claimants 
Mrs Susan Couch is the surviving victim of the attack. She suffered serious and permanent ongoing physical injury as well as psychological trauma as a result of this slaughter. 
Mr Tai Hobson's wife was one of the murder victims. The “damage” suffered by Mr Hobson is only obliquely pleaded: 
That it was a natural and probable consequence of the defendant's foregoing conduct that Bell would re-offend by planning to rob and robbing the Panmure RSA thereby causing grievous injury to the employees therein in the course of such re-offending and that persons such as the plaintiff could, as a result, suffer mental anguish, shock, pain and general suffering (italics added). ”
By her statement of claim Ms Couch claims damages for pain and suffering of $1,500,000 and exemplary damages of $500,000. 
By his statement of claim Mr Hobson claims damages for pain and suffering of $50,000 and exemplary damages of $500,000. 
Some procedural matters 
Mr Hobson's claim was put on three bases: negligence; breach of statutory duty by the Crown; and misfeasance in a public office. 
The Attorney-General applied to strike out this claim on the footing that, however regrettable the circumstances of the death of his wife, Mrs Mary Hobson, no cause of action was advanced which had any possibility of being sustained in law. 
That strike-out application came before Heath J in May of 2004. In a judgment delivered on 23 September 2004 (see [1] above), the Judge struck out the causes of action in negligence, and for breach of statutory duty. That based on misfeasance in a public office was left live. 
On this appeal, it is argued for Mr Hobson that the cause of action in negligence should not have been struck out. There is no appeal with respect to the strike-out of the cause of action based on breach of statutory duty. 
As to Ms Couch's claim, it was pleaded in negligence and misfeasance in public office. No application was made to strike out that claim in the High Court but, by consent, on 8 September 2005 Associate Judge Sargisson made orders under rr 418 and 419 of the High Court Rules that the question whether Ms Couch's statement of claim disclosed a reasonable cause of action should be argued prior to trial, and that that question should be removed to this Court for determination. 
Therefore, as matters stand before this Court, they are not on all fours with what the position was in the High Court. Breach of statutory duty as a possible cause of action has fallen away altogether. Both Mr Hobson and Ms Couch plead negligence and misfeasance in office against the Attorney-General. 
There is no cross-appeal by the Attorney-General against the decision of Heath J leaving live the claim for misfeasance in office, in Mr Hobson's proceedings. But as I apprehend it, counsel accept that if Ms Couch's claim discloses no reasonable cause of action under that head, then that must also be fatal to Mr Hobson's pleading. 
This is a somewhat untidy procedural situation; it would have been preferable if there had been a cross-appeal by the Crown on the misfeasance cause of action. But in the result, given the circumstances I have noted above, I think nothing turns on that. 
It is convenient, and more orderly, to take each of the causes of action in turn. In so doing I acknowledge at once that the position of Mr Hobson in respect to a claim for negligence may well be different from that of Ms Couch, for reasons I will address later in this judgment. 
The nature of a claim for negligence 
It is critically important in this case to keep first principles in mind, and with respect, I think these principles have not been entirely happily addressed by the appellants' pleadings. 
In everyday usage, the word “negligence” denotes mere carelessness. A person may say: “I negligently left my suitcase on the train.” In legal usage however, the term signifies the failure to exercise that standard of care which the doer as a reasonable man or woman should, in the eyes of the law, have exercised in the circumstances. If there is no legal duty to take care, the apparent lack of care has no legal consequences. In the most general terms, there is a legal duty to take care where it was, or should have been, reasonably foreseeable that failure to do so was likely to cause injury. 
Hence the conventional elements of the cause of action for negligence are as follows: 
A duty, recognised by law, to conform to the requisite standard of care for the protection of an identified person (or class of people) against the kind of harm in issue. Lawyers generally call this the ‘duty issue’. It will be observed that this is a judicial control mechanism over matters of policy as to what duties of care will be recognised in law, and those which will not. 
A failure by the defendant to attain the requisite standard of care. This is the ‘negligence issue’. Significantly it is entrusted to the trier of fact. For a long time this was for a civil jury; today this issue of fact is determined by a trial Judge. 
Actual injury to the defendant as a result of the breach of duty. A driver of a motor vehicle is under a duty not to drive carelessly on the road, and may in fact have done so, but if no damage arises there is no claim. 
A reasonably proximate causal link between the breach of the duty and the harm. This is referred to in the law as the issue of ‘remoteness of damage’ or sometimes ‘proximate cause’. ”
Establishing a duty of care 
There are some well-established categories of negligence. Some of the more common categories are the liability of suppliers of goods to consumers; of professional persons doing work for their clients; and of persons using vehicles on the road to other road users. 
The categories of negligence are never closed, and it is occasionally necessary for a court — as in this case — to pronounce on whether a “new” category of negligence should be recognised in a particular jurisdiction. 
The basic question is then - though it is merely to state the obvious - whether it is just and reasonable that such a duty be imposed (see Rolls Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA)). 
How a Court is to make such a determination was summarised by a Full Court of this Court in Wilson & Horton Ltd v The Attorney-General [1997] 2 NZLR 513
“[On the established authorities], the first inquiry is an ‘internal’ one, relating to the nature of the relationship between the parties. But there must also be an ‘external’ inquiry into the wider factors which are thought to be relevant to that relationship, and the broader implications of imposing a duty of care from the perspective of the community at large. These would include such considerations as the kind and seriousness of the harm in issue; the possible extent of subsequent litigation arising from the recognition of a duty of the suggested kind; reasonable alternatives to tort based liability; the calculus of risk, and other economic implications; the simple requirements of ‘justice’; and any other relevant factors (per Hammond J at 520). ”
What is suggested by the “economic” approach to a duty of care is perhaps most clearly articulated in the famous judgment of Judge Learned Hand in United States v Carol Towing Co Inc 159 F 2d 169 (2nd Cir, 1947). The relevant variables can be reduced to algebraic form: C = P × D in which C is the burden of care required to avoid the risk; D, the possible injury; and P, the probability that injury will occur, if the requisite care is not taken. 
A similar approach to that of Judge Learned Hand was suggested by Mason J in Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 (HCA): 
“In deciding whether there has been a breach of the duty of care the tribunal … must first ask itself whether a reasonable [person] in the defendant's position would have foreseen that his [or her] conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff … . The perception of the reasonable [person's] response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have (at 47). ”
More recently, in Rolls Royce (above at [30]) this issue was put this way (as summarised in the headnote): 
“The question when deciding whether a duty of care should be recognised in New Zealand was whether, in the light of all the circumstances of the case, it was just and reasonable that such a duty be imposed. There were two broad fields of inquiry. The first was as to the degree of proximity or relationship between the parties. The second was whether there were other wider policy considerations that tended to negate, restrict or strengthen the existence of a duty in the particular class of case. The proximity inquiry was concerned with the nature of the relationship between the parties. It was more than a simple question of foreseeability and involved consideration of: 
the degree of analogy with cases in which duties were already established; 
balancing the plaintiff's moral claim to compensation for avoidable harm and the defendant's moral claim to be protected from undue restriction on its freedom of action and from an undue burden of legal responsibility; 
the extent to which the plaintiff's position was vulnerable having regard to whether the defendant's special skills created power over a vulnerable plaintiff; 
whether there were or realistically had been other remedies for the plaintiff; 
the nature of the loss. The Courts were less willing to impose a duty of care in cases of economic loss than where there was physical damage to property; and 
the statutory and contractual background in defining the relationship between the parties which could point, depending on the circumstances, both towards and away from a finding of proximity. ”
Pleading Negligence 
It is worth reiterating that the underlying elements as to “negligence” should be reflected in the pleadings in a given case: the statement of claim should state the facts on which the supposed duty is founded, the duty allegedly owed by the plaintiff, the precise breach of that duty of which the plaintiff complains, and particulars of the injury and damage sustained. 
Thus, for instance, in a claim for damages for negligence against a solicitor, Bullen, Leake and Jacobs Precedents of Pleadings (15ed 2004) at 1296 suggest that the pleading should be something like: 
“In breach of contract and/or negligently the defendants failed to exercise the care and skill to be expected of reasonably competent conveyancing solicitors in performing their duties pursuant to the said retainer. ”
After that averment, distinct particulars of negligence should be set out; then particulars of loss and damage (and each of those heads should be particularised).
Breach of statutory duty 
At all times relevant to this case, under s 125 of the Criminal Justice Act 1985 it was the duty of every probation officer to supervise those persons placed under that officer's control. I will return to this topic in more detail later in this judgment, but for clarification, I think it important to add some comments on the relationship between such a statutory duty and “negligence” in the legal sense. 
The starting point is that our law is committed to the view that negligence and breach of statutory duty are two distinct torts. The complication is that statutory requirements may influence decisions that are made in negligence cases. 
United States (and, more latterly, Canadian) law has preferred to regard breach of statutory duty as being merely a particular species of negligence which judges in those jurisdictions sometimes call “statutory negligence”. Such an approach turns on two lines of reasoning. The first is an argument that Courts face insuperable difficulties if breach of statutory duty is treated as a nominate tort in its own right: Judges have to search the statute to find an intention which, by definition, is not there. Secondly, it is argued that the trend in the law of tort has been away from absolute liability towards liability based on fault (see, for instance, Cambridge Water Company v Eastern Counties Leather Plc [1994] 2 AC 264 (HL)). Thirdly, jurists of this persuasion consider that at the end of the day there are only marginal distinctions between the torts. Fourthly, it is suggested that statutory negligence has a number of advantages. The reasonable care test can leave a considerable area of doubt as to the level of precautions that are appropriate on particular facts. Statutory negligence on the other hand “crystallises” the position. Further, on this theory, the views of the legislature or executive become decisive. Of course if this view of the law is adopted there is still the problem of whether a breach of a statutory requirement constitutes negligence per se, or is merely prima facie evidence of negligence. 
Appellate courts in England and New Zealand have, by contrast, favoured the view that breach of statutory duty is a nominate tort distinct from negligence. It rests on a separate principle that depends on discerning the intention underlying the legislation. Any question of the application of the “statutory negligence” approach was distinctly laid to rest by the decision of the House of Lords in London Passenger Transport Board v Upson [1949] AC 155. Lord Wright there categorised the tort as a specific common law right which is not to be confused in its essence with a claim for negligence. The problem with this approach is in inferring the legislative intent. But it also has distinct advantages. It provides a technique for excluding the tort from areas in which courts deem its application to be inappropriate, and avoids the inflexible application of a criminal or quasi-criminal law standard (with the risk that damages awarded in a civil case might far outweigh any penalty imposed in criminal proceedings). The underlying concern of Judges of this persuasion is to avoid the prospect of tort damages being awarded for every marginal breach of a regulatory statute. This result is said to be favoured in view of the increasing proliferation of regulations that do not rest on any moral condemnation of the (prospective) defendant's conduct. See also the comments of William Young J in Attorney-General v Body Corporate No. 200200 & Ors CA30/05 1 December 2005 at [47]-[49]. 
For present purposes, what is important is that the House of Lords emphasised in X (Minors) v Bedfordshire CC [1995] 2 AC 633 that English law does not recognise careless performance of a statutory duty as an independent tort. 
This Court has previously made it clear that this is also the position in New Zealand. In Attorney-General v Carter [2003] 2 NZLR 160 this Court stated: 
We respectfully agree with this approach. It is consistent with, indeed the logical culmination of, a developing trend to place increasing emphasis on the terms of relevant legislation when, in a common law negligence case, that legislation is central to the relationship between the parties. The trend of authority has also regarded the legislative environment as informing the duty of care question rather than as providing an alternative basis upon which a claim for negligence might be maintained. … [A] negligence claim can logically be brought as one for breach of statutory duty only if there is a statutory duty to take care (at 172). ”
To put all of this another way, carelessness is actionable under the tort of negligence, but only in situations in which the criteria for the recognition of a common law duty of care have been satisfied. The tort of breach of statutory duty may impose a standard of reasonable care, but it does so only when the statutory duty in issue has been determined as intended to confer a private law cause of action on a defined class of persons. These constraints mean that there is not some sort of intermediate tort of careless performance of a statutory duty. 
The pleadings in this case 
Bearing in mind the points I have made, the third amended statement of claim in this case is somewhat confusing. 
Paragraph [26] of that pleading avers (in that part of the statement of claim which would normally be thought to be dealing with the factual assertions): 
“The defendant had a duty to ensure: 
Bell was removed from the course providing a licence controller qualification run by Transition Training Limited; 
Bell's places of work were known to them and verified; 
Bell was instructed he was not to seek work in the liquor industry; 
Bell was assessed to ensure he was not involved in the consumption of liquor; 
Bell was residing at suitable accommodation where any involvement in the consumption of liquor was not tolerated; 
That Bell was living in suitable accommodation to minimise the risk of re-offending. ”
Then, in relation to claim for negligence it is averred, at [33]: 
“The defendant owed a duty to the plaintiff: 
Not to encourage Bell, a known violent offender, with a record as set out herein to obtain work in the liquor industry. 
Not to encourage Bell to illegally work in the liquor industry. 
To ascertain where he was working. 
To supervise where he was working. 
To contact his employers to ensure they knew his propensity with alcohol and robbery. 
To ascertain that he was working at the Panmure RSA. 
To contact and warn the management and staff of the Panmure RSA (including the plaintiff) that Bell: 
Was a high risk violent offender who had conviction for aggravated robbery, and 
Had a known propensity for re-offending. 
Any combination of the foregoing. ”
And further, at [34]: 
“The defendant: 
Notwithstanding it was illegal for Bell to be involved in the sale of liquor encouraged Bell to work in the liquor industry. 
Permitted Bell to obtain a Licence Controller qualification from Transition Training Ltd. 

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