One Small Step for Private Law Remedies, One Giant Leap for an Infant Court: Couch Episode II
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CASE NOTES
One Small Step for Private Law Remedies, One
Giant Leap for an Infant Court: Couch Episode II
BENEDICT TOMPKINS*
I INTRODUCTION
The decision of the Supreme Court in Couch v Attorney-General (Couch)'
is of double significance: it is an assertive (re)clarification of the role and
boundaries of exemplary damages for negligence, and it is the first time
that the Court, only six years out of the parliamentary womb, has directly
overruled a decision of the Privy Council on a New Zealand appeal.
In relation to both of these major issues,2 the five separate judgments
delivered are marked by varying degrees of divergence of judicial opinion.
Although the pleadings in the case at hand meant that it had no bearing on
the result, the split regarding exemplary damages is indicative of an area
of law where polar views are supported by equally defensible and cogent
arguments. On the one hand, exemplary damages are seen as an aberration;
on the other, they are viewed as being consistent with underlying principles
of (at least) tort law. Following Couch, for now at least, the former of those
views, and the results that it entails for the flavour of negligence liability in
this country, underlies the law in New Zealand.
II THE CASE
The latest decision arising out of William Bell's attack on the Panmure
Returned Services Association (RSA) in December 2001 is in fact the fourth
instalment in the litigation, and the second decision of the Supreme Court.
The facts of the case are by now well-known. Bell was on parole following
conviction for aggravated robbery and, while under the supervision and
with the knowledge of his (junior) probation officer, was assigned to
* BA/LLB(Hons) student.
I Couch v Attorney-General (2010] NZSC 27 [Couch].
2 The two other issues in the case, not examined below, were the effect of the statutory bar to proceedings in the
Accident Compensation Act 2001 on the availability of exemplary damages for personal injury (to which all
judges concluded that it was no obstacle), and the effect of s 86 of the State Sector Act 1988 and s 6(l) of the
Crown Proceedings Act 1950 on Crown liability for acts of its employees (on which there was a difference of
opinion, but one that did not affect the unanimous conclusion that the sections did not result in immunity to
liability).](ViewImageLocal?handle=hein.journals/auck16&div=16&collection=&method=preview&ext=.png&size=3)
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One Small Step for Private Law Remedies, One Giant Leap for an Infant Court: Couch Episode II
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