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Court Should Not Block Claim For Exemplary Damages: Couch Lawyer

Fuseworks Media
Fuseworks Media

Wellington, March 23 NZPA - A lawyer for Susan Couch, the sole survivor of the 2001 Auckland RSA triple murders, today called on for the Supreme Court not to obstruct her claim for $500,000 exemplary damages from the Department of Corrections.

Brian Henry disagreed with crown arguments that exemplary damages should be restricted to cases in which it could be proved there was a conscious decision to do wrong.

It should be enough for Ms Couch to prove "outrageous and flagrant" disregard for her safety, meriting condemnation and punishment, he said. This test was simple and clear.

"Do not stop the case at a pleading stage," he said. "Let it develop, where all the facts come through and the words `outrageous' and `flagrant' will meet the situation for the court," he said.

Since no-fault accident compensation was introduced, the only way a private citizen could ask for a degree of supervision was to come to the courts and say: "I want to find out what happened, and I want the ruler run over it by the court, because I believe it was outrageous", he said.

Such remedies would be rarely sought, and probably only against big government departments and large corporates.

Ms Couch suffered serious injuries during the brutal attack by William Bell who had 102 previous convictions and was on parole at the time of the killings. She wants to seek $500,000 for alleged negligence by Bell's probation officer.

The Supreme Court is considering whether an exemplary damage application -- for payment solely as punishment -- should be allowed in the case of negligence.

Much of the debate between Mr Henry, Solicitor-General Dr David Collins QC, Deputy Solicitor-General John Pike and the bench of five justices, led by chief Justice Sian Elias, centred around previous rulings on exemplary damages.

They also canvassed different rulings in New Zealand and at the Privy Council on the case of Gisborne pathologist Michael Bottrill, who was alleged to have misread cervical smears of patients, some of whom developed cervical cancer and died.

Ms Couch was last year given leave to sue Corrections for damages on the grounds that she may be owed a duty of care -- overturning a 2006 ruling by the Court of Appeal -- but the Crown today argued that a claim for exemplary damages should not be allowed.

Dr Collins said exemplary damages should be for the punishment of a wrong-doer, rather than the benefit of a victim. There was a risk of some people "trying it on" to make up for perceived deficiencies in accident compensation (ACC) payouts, he suggested.

Such cases should only be taken to court where conduct had been advertent or subjectively reckless, and consciously caused harm.

Mr Pike said that the ACC system could be undermined by allowing people to be compensated in personal injury cases according to the "criminal" state of mind of the person said to have contributed to that injury.

This could build up a distortion in the scheme, and bring a re-eruption of litigation over personal injury.

The court last year accepted Ms Couch could possibly establish Corrections "had sufficient power and ability to control Bell in a way which would have prevented the harm which (she) suffered", but indicated she would have to prove "special risk".

Bell is serving a life sentence with a non-parole period of 30 years at Auckland Prison's Paremoremo maximum-security facility. He is ineligible to apply for parole until 2031.

The court's decision was reserved.

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