Date: Wed, 19 Jul 2006 09:27:47 +1000

From: Neil Foster

Subject: Stop press : no liability for not stopping patricide

Dear Geoff et al;

I'm guessing in your second para below you meant "estates cannot sue for exemplary damages".

Thanks very much for referring this case. I actually don't think I'm surprised at the length of the judgement - I have zipped through it and I must say it seems to be a fairly good analysis with not too much wasted space. This is one of the cases (like the NSWCA decision in Hunter Area Health v Presland, which correctly is analysed in detail here) where one's first reaction is to say "how could anyone even make such a claim?", but when you actually read the judgement there is surprisingly more to be said than you would think. I was staggered, for example, when I first discovered that Spigelman CJ actually upheld the trial judge's decision in Presland, but his judgement is reasonably persuasive. On the other hand, I think this is one of those cases where the gut reaction of the public is probably right in the end - for all that can be said in favour of the claim, it would really seem to be wrong to allow recovery in this sort of situation. (Especially in the NZ context noticed by you and Lewis.)

And I thought the Breach of Statutory Duty analysis was excellent as well!

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Geoff McLay 19/07/06 6:55 >>>

Lewis

The answer to all of this is yes!

It is possible for victims to sue criminal for exemplary damages, but estates can sue for exemplary damages because we still have the odd English Tort Reform Act that prevents such claims (this obviously makes no sense, but it is the law).

In the best possible world ACC would have barred all of these claims and compensate the deserving ones. Cover under the Act is only triggered by an actual physical injury.

In a case earlier this year the surviving victim of a notorious shooting crime and husband (who claimed nervous shock) of the deceased from the same crime attempted to sue the probation service. Both claims were struck. The leading judgment in that case, Tia Hobson used as part of the justification for the decision, that ACC would bar compensatory damages so it would be wrong to allow the husband to extend common law to allow the husband to sue.

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