--On
09 November 2006 10:20 +0000 "Jones, Michael" wrote:
Dear
Geoff,
how
do you read the Privy Council decision in Bottrill, in
which English (yes I know that they were also NZ judges) judges
forced New Zealand to adopt a rule that punitive damages could
be imposed in cases of really bad negligence.
There
were no NZ judges in the PC in Bottrill. There was only
one English judge in the majority, Lord Nicholls (a graduate of
Liverpool Law school as it happens) and two Scottish (Lord Hope
and Lord Rodger). The dissent consisted of one Englishman and one
Irishman Millett and Hutton). Forgive the sensibilities. The English
are accustomed to being accused of lots of things when responsibility
lies elsewhere. Tony Blair, for example, is Scottish ...
My
understanding is that the majority in Bottrill did not
force, and did not believe that they were forcing, NZ to adopt exemplary
damages for the tort of negligence, but that it was already accepted
in NZ that exemplary damages could be awarded in an action for negligence
(see McLaren Transport Ltd v Somerville). I appreciate
that the majority of the NZCA in Bottrill interpreted the
requirements for exemplary damages more narrowly than the test set
out by Tipping J in McLaren Transport, requiring conscious
recklessness, but recklessness is not a tort per se, merely
a measure of a standard of behaviour required before exemplary damages
could be awarded. NZ had therefore already committed itself to exemplary
damages for the tort of negligence. The argument was simply about
the correct test to apply before they could be awarded. The majority
view in the PC was that though overwhelmingly, in cases of negligence,
an award of exemplary damages would be appropriate only where the
defendant's wrongdoing was intentional or consciously reckless,
there could be rare cases where "the defendant departed so
far and so flagrantly from the dictates of ordinary or professional
precepts of prudence, or standards of care, that his conduct satisfies
this test even though he was not consciously reckless" (see
at [26]). I believe that the case of Dr. Bottrill was notorious
in NZ, and one of the most egregious examples of professional incompetence
that one could ever expect to come across (he was a pathologist
whose false reporting rate for cervical smear tests was 50% or higher
– he might just as well have been shutting his eyes and using
a pin to determine the results). It may be that with such a gross
example of objective recklessness the majority considered that to
require a subjective appreciation by the defendant of how staggeringly
incompetent his own professional standards were would be to leave
too much hanging on the defendant’s own beliefs. After all,
one of the most unappealing features of some members of
the medical profession that has been revealed in some medical
negligence litigation is an overweening confidence in their own
ability, despite overwhelming evidence to the contrary. It might
seem odd that the more misplaced the defendant’s belief in
his own ability was (so that it would be impossible to say that
he was subjectively aware of the risk of harm and consciously took
the risk), the less likely it would be that an award of exemplary
damages could be made (as compared to the defendant who has sufficient
insight/competence to appreciate the risk and nonetheless goes ahead
and takes the risk [assuming that the two defendants’ conduct
was objectively the same]).
Surely
there is enough criticism both implied and express of Rookes
to suggest that should it go to the Lords on the issue that any
Rookes objection would be swept aside.
I
think that there are different views on the subject of exemplary
in the House of Lords, as in the academic community, so the answer
to this point is that it may depend on the panel if a case goes
to the HL. Lord Nicholls seems to favour the Law Commission’s
position that the restrictive test laid down in Rookes v Barnard
should be abolished. Indeed in Bottrill he said: "Their
Lordships also consider that past experience, as expressed in observations
or decisions of the higher courts in New Zealand and elsewhere in
the common law world, supports the broader approach. Leaving aside
England, still toiling in the chains of Rookes v Barnard,
courts in common law countries have remained true to the underlying
rationale of the exemplary damages jurisdiction" (at [41]).
This is reflected in his approach in Kuddus, but the speeches
in Kuddus are not of one voice. Incidentally, the arguments
of counsel in Kuddus were not that exemplary damages should be abolished,
or that the two limiting categories in Rookes v Barnard
should be abandoned. The argument was confined to whether exemplary
damages could be awarded in the tort of misfeasance in public office,
if the defendant’s conduct fell within the first Rookes
v Barnard category (oppressive, arbitrary or unconstitutional
action by an agent of government).
