Chapter 2
Why is a Crown Civil Proceedings Bill needed?

One major conceptual change

2.8There is perhaps only one major conceptual change. Under our proposed Bill, the Crown could be sued directly in tort, as opposed to vicariously, for the actions of its servants, just as it currently can be in contract. Currently, the Crown can only be sued vicariously, with limited exceptions in the Act.8 This is the position in various Australian states and it was also the case that the Crown could be “sued” in New Zealand before the 1950 Act.9 The purpose of the proposed change is not to increase the potential liability of the Crown. The Crown’s liability has not been noticeably increased in the Australian states in comparison to New Zealand or the United Kingdom. The change is intended to more closely align the statute to the realities of modern government in which it is clear that the Crown, and not just its employees, owes obligations to the citizens it serves. The change would also allow the argument that the Crown might be liable in a case of systematic negligence where no one employee has committed a tort, but where the Crown has nevertheless failed to meet its obligations.
2.9In doing this, the new statute would avoid much of the problem that confronted the plaintiffs in Couch.10 It would focus attention not on whether the allegations of negligence could be made against individual officers, which is the question currently required by the statute, but on whether the government and its departments owe and have breached a duty of care. In Couch, this broader issue was the question that the Supreme Court actually considered: whether the Department of Corrections and its probation service had owed a duty of care to those attacked by William Bell, as Bell was supposed to be under their supervision.
2.10Under our proposal, the scope of Crown liability in particular cases would continue to be determined by the courts. Plaintiffs alleging negligence would still be required to establish loss that resulted from the breach of a duty of care. It is not intended, and it is not anticipated, that the traditional reluctance to recognise a duty of care for failures to properly regulate would be altered by this proposed reform. Indeed, the narrow grounds on which the majority of the Supreme Court recognised that there might be duty of care in Couch shows the generally conservative nature of New Zealand courts in this area.11
8For instance, the Crown itself can breach contracts or trustee duties under s 3(2)(a), can breach duties owned as an employer under s 6(1)(b) and can breach common law duties relating to the ownership, possession or control of property under s 6(1)(c).
9See Stuart Anderson “‘Grave Injustice’, ‘despotic privilege’: the insecure foundations of crown liability for torts in New Zealand” (2009) 12 Otago L Rev 1. Before 1950 New Zealand enabled the presentation of petition of rights to the courts that covered a wide range of activities of the New Zealand Government.
10Couch v Attorney-General (No 2 ) (on appeal from Hobson v Attorney-General) [2010] NZSC 27, [2010] 3 NZLR 149 [Couch]. In Couch, the severely injured victim of an aggravated robbery at the Panmure Returned Services Association (the RSA) sued the Attorney-General on behalf of the Department of Corrections alleging negligence and claiming exemplary damages. The offender, William Bell had been previously convicted and imprisoned for aggravated robbery and had been allowed by his probation officer to take up employment at the RSA. The management of the RSA were unaware of Bell’s criminal record. The issues considered in the case included whether the Department owed a duty of care to the plaintiff and whether exemplary damages could be claimed.
11See Geoff McLay “The New Zealand Supreme Court, the Couch case, and the future of government liability” (2009) 17 Torts Law Journal 77.