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From: Jones, Michael
Sent: Thursday, November 09, 2006 4:20 AM
To: Geoff Mclay
Subject: RE: RE: ODG: RE: punitive damages for negligence
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).
