Couch v Attorney-General; 13 Jun 2008

References: [2008] 3 NZLR 725, [2008] NZSC 45
Links: Nzlii
Coram: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Nzlii Supreme Court of New Zealand – [1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the supervision of the parolee who seriously injured her. Her claim has been struck out in the Court of Appeal on the basis that it discloses no cause of action because no duty of care was owed by the Probation Service to her. A further argument that the claim should be struck out on the basis that exemplary damages are not available for negligently causing personal injury did not have to be addressed in the Court of Appeal, because it took the view that no duty of care arose. Whether exemplary damages can be claimed, if a duty of care cannot be excluded, remains a live preliminary issue but is not disposed of in this judgment because the parties did not have time at the hearing to address the point. The question for determination now is whether the Probation Service may owe a duty of care in law to the victim. As the Court is unanimous in resolving this question in favour of the plaintiff, so that the basis on which the claim was struck out in the Court of Appeal falls away, it will be necessary to hold a further hearing on the availability of exemplary damages, if the parties require that matter to be determined before trial. Because the parties may wish to reconsider whether the availability of exemplary damages is suitable for determination before trial, in the light of the discussion in the reasons of the Court about the principles upon which strike-out is appropriate, the appeal is formally adjourned so that memoranda can be filed within one month on that point. If further hearing is required, a fixture will then be made. If further hearing is not necessary, formal orders reinstating the proceedings will be made.
[2] Whether the Probation Service may owe a duty of care to the victim of a criminal assault by a parolee under its supervision is not resolved by New Zealand authority. It falls to be determined in this Court on a strike-out basis, ahead of determination of the facts and before completion of pre-trial processes, including finalisation of the pleadings. Whether the circumstances relied on by the plaintiff are capable of giving rise to a duty of care is the question for the Court. 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.
[3] We are of the view that the claim is not so clearly untenable as to be suitable for peremptory determination on untested facts. We are unable to agree with the majority in the Court of Appeal that it should be struck out. We consider that strike-out is premature for reasons similar to those that persuaded Hammond J to dissent in the Court of Appeal.
[4] Although we agree with Tipping J that the claim should not be struck out as disclosing no duty of care, we differ from him in the approach to be taken in ascertaining whether a duty of care can arise in these circumstances. Tipping J suggests that a duty of care to prevent harm inflicted by a third party arises only where the plaintiff, either as an individual or as a member of an ‘identifiable and sufficiently delineated class’, is known to the defendant to be ‘the subject of a distinct and special risk’ of the harm suffered because of particular vulnerability. [1] 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 in such cases as Bowen v Paramount Builders (Hamilton) Ltd [2] and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd, [3] in application of Donoghue v Stevenson [4] and Anns v London Borough of Merton. [5] Whether there is sufficient relationship of proximity between the person injured by a parolee and the Probation Service supervising the parolee turns on a broad inquiry without controlling emphasis on the plaintiff’s membership of an ‘identifiable and sufficiently delineated class’.
[5] Two factors are likely to be key at trial. The first is the background of the Probation Service’s statutory obligations of supervision and control over the parolee, which included the power to control where he worked. The statutory obligations and powers are imposed in substantial part for the protection of the public. We do not think it can be confidently said at this preliminary stage that in carrying out its statutory responsibilities the Probation Service cannot owe a duty of care to the plaintiff, whether as fellow employee of the parolee (the basis upon which her counsel puts it) or indeed as a member of the public. The second factor is the knowledge held as to the risk the parolee presented and the means reasonably available to the Probation Service for avoiding harm through realisation of such risk. Cardozo CJ famously said of duty of care in negligence that ‘risk imports relation’.[6] Because the facts bearing on risk and its avoidance are not yet known, and in the absence of any other clear impediment to the existence of a duty of care (such as might be found if such a duty was inconsistent with the statutory functions of the Probation Service), we consider that to strike out the proceedings would be premature.
This case cites:

  • Cited – Smith -v- Leurs ((1945) 70 CLR 256, [1945] HCA 27, Austlii)
    High Court of Australia – The parents of a child denied liability for harm caused by their son using a shanghai.
    Held: Dixon J said that: ‘It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to . .

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Last Update: 20-Dec-15 Ref: 556829