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12 Otago L. Rev. 1 (2009-2012)
Grave Injustice, Despotic Privilege: The Insecure Foundations of Crown Liability for Torts in New Zealand

handle is hein.journals/otago12 and id is 3 raw text is: 1 EW. Guest Memorial Lecture: August 6th, 2008 'Grave injustice', 'despotic privilege': the insecure foundations of crown liability for torts in New Zealand Stuart Anderson* This lecture originated from a conversation with a lawyer about a case argued in the New Zealand Supreme Court in April 2007. It showed that there is an aspect of crown liability for torts that is not well understood and which may still cause injustice. The Supreme Court's long-delayed decision, in June of this year, suggests a reasonably satisfactory solution, but only by ignoring the statute that is the cause of the problem and then not analysing the basis of the solution itself. The rule concerned is an English import into the New Zealand statute book. I hope to demonstrate its adventitious nature as part of an argument that it should be repealed. For non-lawyers I need just to say that the law of torts is the law of liability for injury, including injury to person, property or reputation, and that it includes the law of negligence. When suing a large enterprise the claimant may aim to make it liable for its own negligence - say for releasing untested drugs on to the market. Sometimes lawyers call that 'direct liability'. I shall call it institutional liability. Alternatively the claimant may say that a particular employee was legally responsible for her loss - say for careless driving of a company delivery vehicle. In that case the employer is liable simply because it is the employer (exceptions aside). That is called vicarious liability. Of course, the claimant's lawyers may not know until the trial how the facts will work out, so they may make both claims. At least, that is what the law says if the defendant is a private person, including a company. 1 Mr Henry's dilemma We begin in the Supreme Court in Mrs Couch's case. She is the sole survivor from a group of co-workers attacked by William Bell at the premises of the RSA in Panmure in December 2001. Three died; and Mrs Couch was left for dead. She is now suing the Crown, more precisely the Attorney-General, because at the time of the attack William Bell was a convicted prisoner out on parole. She claims that he was able to make the attack only because of culpably lax supervision by the Probation Service. The Crown concedes that there were shortcomings. William Faculty of Law, University of Otago. This paper is a slightly expanded version of the address given as the F. W. Guest Memorial Lecture at the University of Otago on 6 August 2008. The title quotations are from the Evening Post, 18 May and 23 November 1910. I have accessed the New Zealand newspapers used in this paper through the National Library's searchable digital collection: http: /paperspast.natlib.govt.nz/cgi-bin/ paperspast.

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