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Accident Compensation Cases

Fyfe v O'Fee (HC, 11/07/02)

Judgment Text

Durie J
The plaintiffs seek damages and compensation from Police arising from their apprehension, arrest and search. They live in Scotland and have applied for directions enabling them to give evidence by videolink from there. In addition, the plaintiffs have given notice requiring the proceedings to be tried before a jury. In response the Attorney-General seeks an order that the proceedings be tried before a Judge alone. 
The facts are presently assumed from an agreed statement prepared for the purposes of an earlier application under Rule 418. 
In 1993 the plaintiffs had been visiting in Otaki from Scotland. While there Mr Fyfe was mistakenly identified by a former detective as one Leslie Green, an armed and dangerous criminal then wanted for armed burglary. Green had been arrested by the former detective on an earlier occasion. A second mistake in identification was later made by a constable from a photograph. 
Soon after the plaintiffs were driving to Wellington airport to return to the United Kingdom. En route the Special Tactics Group of Police, acting as an Armed Offenders' Squad, halted the car by executing what is known as a moving block. They effected an armed detention of the occupants, directed Mrs Fyfe to lie face down on the wet road while her hands were secured behind her back and held Mr Fyfe at gunpoint while he was handcuffed. The plaintiffs were taken to a Police Station in separate vehicles. The mistake of identity was discovered en route. 
Mrs Fyfe claims to have suffered mental injury including the effects of post-trauma distress syndrome with results that include actual and projected employment loss. She presents the more substantial claim for general damages. Mr and Mrs Fyfe both claim exemplary damages. 
Mode of Evidence 
All but two of the plaintiffs' witnesses are resident in Scotland. The plaintiffs assert and the defendants accept that Mrs Fyfe cannot reasonably be expected to travel to New Zealand owing to her current health condition. She suffers cancer of the lung and claims a fear of travelling any distance following the events mentioned. Similarly the defendants accept that Mr Fyfe should not be expected to travel to New Zealand to give evidence leaving his wife behind him. Other witnesses will depose as to the effects of the events on Mrs Fyfe's mental health, her work and her employment prospects and the impact of work cessation on her pension rights. The defendants accept the preponderant convenience that all of this evidence be taken from Scotland as well. 
I am also so satisfied, the more so in light of Mr Taylor's careful submissions on the comparative costs of the various options and the comparable inconvenience to witnesses. 
Accordingly, pursuant to Rule 438(3) I order that all Scottish evidence be taken by videolink. As to timing, 6.00 pm-12 midnight in Scotland, which will correspond with 7.00 am to 1.00 pm New Zealand time during the trial, appears most favourable for the just, expeditious and economical disposal of business. This would allow for a 15 minute adjournment at 10.00 am. 
In determining that in the context of the justice of the matter I have had particular regard to the need for hours that are sensitive to Mrs Fyfe's health and that the hours should also not present a trial by ordeal for other Scottish witnesses. As to expedition, the need is to meet an estimated requirement of two and a half Court days, with a full utilisation of such time, as is normally given to a hearing, to the extent practicable, due to the pressure of other Court business. The time required may be less than two and a half days in the light of Mr Pike's indicated attitude to certain medical evidence, but a 7.00 am New Zealand start should be anticipated for three days. The arrangement also suits one sense of the term “economy” in that the proposed hours will also maximise reduced rate periods for telecommunication costs. 
In this case no particular directions appear to be required as to the siting of witnesses for screening purposes or their access to material. Counsel accept that Mr Fyfe may be seated with Mrs Fyfe when the latter gives her evidence. Senior counsel are involved and they will make their own arrangements to exchange briefs. 
Jury or Judge alone 
The plaintiffs have given notice requiring a jury trial, as has long been recognised as a plaintiff's right. The defendants oppose, as they are entitled to do,. and have applied for a trial before a Judge alone. In terms of s 19A(5) of the Judicature Act 1908 as amended by the Judicature Amendment Act 1977, the proceedings may be tried before a Judge without a jury where it appears: 
That the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or 
(b) That the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury[.] ”
The statement of claim pleads negligence, the torts of false imprisonment, wrongful arrest, assault and trespass to the person, and breach of the New Zealand Bill of Rights Act 1990 ss 9, 22 and 23. In issue are both the original liability of the first defendant, the inspector who was the officer in charge, and the vicarious liability of the Attorney-General. 
The defence pleads reasonable mistake of fact as justification for an arrest without warrant (Crimes Act 1961, s 32), justified limitations on rights for the Bill of Rights allegations and the bar on personal injury claims in the Accident Rehabilitation and Compensation Act 1992. Arms Act defences in ss 60, 61 and 71 are also relied on. 
With regard to s 19A(5)(b) of the Judicature Act, though it is also pertinent to questions of law, the case proceeds to trial on the basis that damages may lie for economic loss caused by post-traumatic stress disorder. This applies in respect of the claims in negligence as well as in respect of the trespassory torts. Medical assessments as to injury and impact are thus called for. However that in itself should not prevent a difficulty for the jury, in my view. The real problem is in the assessment of remoteness, and for reasons to follow, of causation, which issues involve complex questions of fact and law. 
As to s 19A(5)(a) the question is not whether there are difficult questions of law as such, as there invariably are. The issue is whether such questions are mainly involved. In this case I have come to the conclusion that that is indeed a predominant feature of this case. It appears to me that the case is so characterised and affected by issues of law as to make the jury something of an appendage to the resolution of the central matters and then to the extent that the jury ought to be relieved. 
I am here assisted by preliminary rulings in the case given under Rule 418 by McGechan J. McGechan J determined that in its interpretation of the Arms Act provisions, Dunlea v Attorney-General (Police) [2000] 3 NZLR 136 (CA) provided justification and protection for Police actions up to the point when it was known that the occupants of the car were not carrying weapons. Also, s 6(5) of the Crown Proceedings Act 1950 protected the Attorney-General from vicarious liability but not the first defendant. The Attorney-General was protected in respect of Mr Fyfe, down to the point where it was realised that Mr Fyfe was not a wanted criminal. In respect of Mrs Fyfe, the protection was down to the point where Mr Fyfe had been secured and removed from the scene. Already some difficulties present themselves in informing the jury of the distinctions. 
The foregoing determination in relation to s 71 assumed that the Police believed on reasonable grounds that Mr Fyfe was the dangerous criminal, Green. Reasonable grounds to suspect or reason to suspect are pre-requisites to action under ss 60 and 61 of the Arms Act. Then, the extent to which a duty of care is to be implied in respect of individual Police officers, in circumstances like these, raises further issues, which are at once factual, legal and issues of public policy. 
In his preliminary rulings under Rule 418 McGechan J considered that whether a duty of care should be recognised must turn upon the full and precise facts proved at trial on a contested basis. He concluded that Police can be liable in negligence in respect of the exercise of law enforcement functions effected by arrest or more simply that there can be liability in tort for a negligent arrest. However, liability depended upon the circumstances, compelling a complicated juxtaposition of facts and law to resolve the position for the particular case. 
I am advised that the parties agree that any appeal from the rulings of McGechan J should await the substantive trial with findings of all issues of fact, including causation, to be made by the trial Court. 
There remain problems over causation. Given the protection for the second defendant, but not the first, up to the points described, issues arise as to what part of Mrs Fyfe's illness and the flow-on effects, arise from one period but not the other, or the extent to which liability may be apportioned. 
Legal concerns also point to and dominate the issue that is most likely to be central, on the application of the civil or the public law to the circumstances of the case. Although there be no general immunity for officers in law, as McGechan J found, there are difficulties of a public policy kind in imposing a duty of care on officers having regard to the statutory regime and the functions to be performed. Cases touching upon the proper operational protocols of Police are inherently in a difficult area. They call for a legal and fully reasoned response rather than one reflecting a general community opinion as represented in the jury. I am inclined to accept the submission of Mr Pike that the protocols for the execution of exercises by armed Police personnel are ultimately for Judges. Accordingly I equally incline against the alternative proposition of Mr Taylor, that the question is not much larger than whether an employer has established a safe system of work. The manner in which the Police put together and execute plans in relation to dangerous criminals has especially to be considered by Judges in my view and indeed is not properly to be determined by popular subscription. For those reasons I think Mr Pike was right to distinguish the jury's assessment of the duty of care owed by teachers to children in their charge in M v L [1998] 3 NZLR 104 (Giles J). 
This finding is based upon considerations beyond those relating to the distinction between common law damages and public law compensation in Bill of Rights cases as made by Cooke P in Simpson v Attorney-General [Baigent's case] [1994] 3 NZLR 667 at p 677. I need not therefore dwell on Mr Taylor's analysis of those comments as obiter and as incorporating other opinions in a way that may not be sustainable. As I say the decision here is wider though obviously it draws upon similar concepts. 
There is an order s 19A(5) that the proceedings be tried before a Judge without a jury. 
Finally, had the decision been to proceed with a jury, I record I would not have put the commencement of hearings by videolink before 8.00 am New Zealand time although I think a finishing point at midnight in Scotland would still need to apply. 
Costs were reserved by McGechan J when making rulings under Rule 418 and they are reserved again. 
In case this matter should eventually proceed before a jury as a result of an appeal I make an order prohibiting publication of this decision until after the trial. 

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