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Date: Thu, 9 Nov 2006 10:28:21

From: Ken Oliphant

Subject: Punitive damages for negligence


Tony Blair is not Scottish. He just happened to grow up there. You have him ...


--On 09 November 2006 10:20 +0000 "Jones, Michael" wrote:

Dear Geoff,

how do you read the Privy Council decision in Bottrill, in which English (yes I know that they were also NZ judges) judges forced New Zealand to adopt a rule that punitive damages could be imposed in cases of really bad negligence.

There were no NZ judges in the PC in Bottrill. There was only one English judge in the majority, Lord Nicholls (a graduate of Liverpool Law school as it happens) and two Scottish (Lord Hope and Lord Rodger). The dissent consisted of one Englishman and one Irishman Millett and Hutton). Forgive the sensibilities. The English are accustomed to being accused of lots of things when responsibility lies elsewhere. Tony Blair, for example, is Scottish ...

My understanding is that the majority in Bottrill did not force, and did not believe that they were forcing, NZ to adopt exemplary damages for the tort of negligence, but that it was already accepted in NZ that exemplary damages could be awarded in an action for negligence (see McLaren Transport Ltd v Somerville). I appreciate that the majority of the NZCA in Bottrill interpreted the requirements for exemplary damages more narrowly than the test set out by Tipping J in McLaren Transport, requiring conscious recklessness, but recklessness is not a tort per se, merely a measure of a standard of behaviour required before exemplary damages could be awarded. NZ had therefore already committed itself to exemplary damages for the tort of negligence. The argument was simply about the correct test to apply before they could be awarded. The majority view in the PC was that though overwhelmingly, in cases of negligence, an award of exemplary damages would be appropriate only where the defendant's wrongdoing was intentional or consciously reckless, there could be rare cases where "the defendant departed so far and so flagrantly from the dictates of ordinary or professional precepts of prudence, or standards of care, that his conduct satisfies this test even though he was not consciously reckless" (see at [26]). I believe that the case of Dr. Bottrill was notorious in NZ, and one of the most egregious examples of professional incompetence that one could ever expect to come across (he was a pathologist whose false reporting rate for cervical smear tests was 50% or higher – he might just as well have been shutting his eyes and using a pin to determine the results). It may be that with such a gross example of objective recklessness the majority considered that to require a subjective appreciation by the defendant of how staggeringly incompetent his own professional standards were would be to leave too much hanging on the defendant’s own beliefs. After all, one of the most unappealing features of some members of the medical profession that has been revealed in some medical negligence litigation is an overweening confidence in their own ability, despite overwhelming evidence to the contrary. It might seem odd that the more misplaced the defendant’s belief in his own ability was (so that it would be impossible to say that he was subjectively aware of the risk of harm and consciously took the risk), the less likely it would be that an award of exemplary damages could be made (as compared to the defendant who has sufficient insight/competence to appreciate the risk and nonetheless goes ahead and takes the risk [assuming that the two defendants’ conduct was objectively the same]).

Surely there is enough criticism both implied and express of Rookes to suggest that should it go to the Lords on the issue that any Rookes objection would be swept aside.

I think that there are different views on the subject of exemplary in the House of Lords, as in the academic community, so the answer to this point is that it may depend on the panel if a case goes to the HL. Lord Nicholls seems to favour the Law Commission’s position that the restrictive test laid down in Rookes v Barnard should be abolished. Indeed in Bottrill he said: "Their Lordships also consider that past experience, as expressed in observations or decisions of the higher courts in New Zealand and elsewhere in the common law world, supports the broader approach. Leaving aside England, still toiling in the chains of Rookes v Barnard, courts in common law countries have remained true to the underlying rationale of the exemplary damages jurisdiction" (at [41]). This is reflected in his approach in Kuddus, but the speeches in Kuddus are not of one voice. Incidentally, the arguments of counsel in Kuddus were not that exemplary damages should be abolished, or that the two limiting categories in Rookes v Barnard should be abandoned. The argument was confined to whether exemplary damages could be awarded in the tort of misfeasance in public office, if the defendant’s conduct fell within the first Rookes v Barnard category (oppressive, arbitrary or unconstitutional action by an agent of government).




Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.



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