Thu, 9 Nov 2006 14:56:05
Punitive damages for negligence
English aren't all that bad (so I'm learning).
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?
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?
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).
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.
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.
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.
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.
– 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?
Reader in Law
Department of Law
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