The New Zealand Supreme Court, the Couch Case and the Future of Governmental Liability

Abstract

This article reviews the New Zealand Supreme Court’s decision in Couch v Attorney-General that the probation service might owe a duty of care in the way that it supervised a dangerous parolee who injured the plaintiff during a violent crime. The article argues that the majority’s approach in purporting to employ the same principles that might have been employed in a case involving a private defendant was misplaced. In doing so, the article points to the general weakness of this traditional Commonwealth approach as ignoring the essentially public nature of the tasks undertaken and suggests that there is more merit in the approach of the Chief Justice, who would have imposed a duty on the probation service because of, rather than despite, its public nature. The article then addresses the approach that courts ought to take to exemplary damages in government cases. It contends that, rather than simply employing principles developed in private law cases, the courts ought to acknowledge the reality that such damages are best thought of as public law devices and that, before awarding them, courts ought to consider which other public devices, such as inquiries, might be better employed to remedy government failure than requiring the payment of damages.

Keywords: Tort, negligence, duty of care, probation service, exemplary damages