Date: Thu, 9 Nov 2006 14:56:05

From: Allan Beever

Subject: Punitive damages for negligence

The English aren't all that bad (so I'm learning).

In fairness to the PC, they said that the relationship between exemplary damages and ACC was a policy matter for NZ courts to decide. This clearly left open the possibility that NZ courts could refuse to award these damages or restrict their availability because of the kinds of concerns Geoff mentions. They haven't taken this up. But that isn't the PC's fault. Why haven't they?

My guess is that no court below the CA will touch this issue given the toing and froing that has been going on in NZ for years now on this issue and so we have to wait for a decision to get back up there or perhaps to the NZSC now. And even that prob won't do, because the NZSC will be divided on the issue and so will want to avoid it. The majority on the CA in Bottrill were certainly not accurately described as pro exemplary damages for negligence, but the next court?

(Incidentally, part of Michael's point was that the fact that the NZCA was anti exemplary damges FOR negligence (i.e. for mere "carelessness") does not imply that the CA was anti exemplary damages IN negligence (i.e. in the law of negligence), and that is right it seems to me).

Of course, one might well argue that if the PC really thought that the matter was for NZ courts to decide, they should have left the CA decision alone. But this just points up the idiotic system we used to have ("de facto") in which the PC was our highest court on matters of law while the NZCA was the highest court on matters of policy.

By the way, the suggestion that the NZCA have been pro exemplary damages would seriously oversimplify the case. John Smillie has argued, correctly in my view, that exemplary damages were all but abolished in Daniels v Thompson, though legislative intervention has altered that. Damages of the kind Robert argues for are available in NZ it seems to me (and I have argued that they should be) though whether people will be happy to call them "exemplary" or "punitive damages" rather than some other possible label is another matter.

Geoff Mclay wrote:

Michael

This is a very favorable reading of what the Privy Council did, and subsequent cases have confirmed our fears about the reach the decision, and its effect on the integrity of a no fault regime.

Yes it is true that as a high court judge Tipping J adopted the very strange 'it was just really bad' test - but I am not aware of a case apart from that in which the Courts accepted that there ought to be an award of exemplary damages for just being silly. (In Maclaren, the service station worker over filled a tire that exploded.) I think that it is a stretch to say that the NZ courts had gone as far as to acknowledge in general that negligence was sufficient for an exemplary award. But the majority in Bottrill clearly rejected any objective standard for the assessment for exemplary damages. Somerville was a dangerous mistake and I think that Tipping realized this by the time of Bottrill. The majority went past the normal agnostic statement that they were just applying NZ law, indeed they could not say that they were since they were reversing the Court of Appeal.

 

Geoff

Ps – I will be careful to refer to them all as UK Judges – is there an appropriate adjective to refer to people from all around the UK? I toyed with British, but I suspect that this is not accurate either?

Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/

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