3.2For the most part, section 6(1) of the Crown Proceedings Act 1950 makes the Crown liable only vicariously for the actions of its officers or servants. This contrasts with the position under the previous New Zealand statutes, which appeared to make the Crown directly liable.
civil proceedings includes civil proceedings at law or in equity, and also includes proceedings by way of preliminary discovery, cross-claim, counterclaim, cross-action, set-off, third-party claim and interpleader.
the government is subject to all the liabilities to which it would be liable if it were a person.
3.7In many cases, the distinction between whether the Crown is directly liable, or vicariously liable, is not material to the outcome. What counts is that the Crown is liable for torts committed by its employees. The difficulty comes when there is no particular officer or servant who has committed a tort, but rather what is alleged is that the government department as a whole has failed, or a number of government departments have collectively failed.
It looks plausible to them because departments function as though they are legal persons, the more so since the State Sector Act gave them chief executives along business lines … There is no virtue in a statutory rule that judges and crown counsel conspire to evade, but which remains a trump card should the crown wish to play it. The statutory limitation of torts liability to vicarious liability is an embarrassment to our law, and a distortion of it. It has no principled justification, and it never has had. It is the result of accidents of English history. It was brought into New Zealand law that by then had its limitations, but was a rule based on principle.
Section 2 [the equivalent of section 6], probably the most important section in the Act, imposes upon the Crown for the first time liability in respect of tort. On this point it is essential to appreciate that, although it is possible and indeed proper in a very large part of the field covered by the activities of the Crown to draw an analogy between those activities and those of private enterprise, there are certain necessary functions of Government where no analogy exists. For instance, no private person has a duty to maintain Armed Forces or to undertake the many activities which must be undertaken by the Crown in discharging this duty to defend the Realm. Furthermore, the servant of a private person is appointed by the mere will of his employer, whereas in the case of a Crown servant the appointment may be made by an officer of the State and his duties may be controlled by statute. The legal consequences which follow from these facts were stated in the judgment of Chief Justice Earle in the case of Tobin. It was consequentially impossible for the Act to deal with the question of tort by the summary and attractive method of merely enacting that the Crown should be liable to be sued in tort. Section 2 therefore sets out three classes of the wrongs which it is thought completely cover, possibly with some overlapping, all that is required.
Australian experience shows that the procedural difficulties that were put forward as an obstacle in New Zealand in 1950 are illusory, and that such a provision does not predetermine what the extent of crown liability should be—that is a matter for judges to determine on ordinary principles of tort law, as they do in disputes solely between citizens.
3.13There has also been no problem with recognising that the Crown itself can breach contracts or trustee duties in section 3(2)(a) of the current Crown Proceedings Act. Indeed section 6(1)(b) contemplates direct liability for breaches of duties owed as an employer and section 6(1)(c) contemplates direct liability for breaches of common law duties relating to the ownership, possession or control of property.
Section 2 [of the United Kingdom Crown Proceedings Act] deals with the liability of the Crown in tort. It is fair comment upon the section that “in view of the barrage of criticism that has been directed against the maxim that ‘the King can do no wrong’, it might have been expected that the Crown Proceedings Act would abolish this maxim. This, however, the Act does not altogether do. There is no section of the Act, stating generally that the Crown shall be liable in tort. Indeed the general principle is left but very wide exceptions are carved out of it” [Glanville Williams Crown Proceedings (1948) at 28]. In comparison with the Claims against the Government Act, the United Kingdom legislation is complex and restrictive of the judicial role. The long Australian experience is that counsels of prudence do not require such complexity or restriction in New South Wales. We recommend against the adoption of the United Kingdom legislation.
3.17Our draft Bill simply states that the Crown can sue and be sued as another person can be, and therefore does not determine the degree to which the Crown might be held to be directly liable in tort.
(1) Every proceeding which may be taken by or against the Crown under this Part shall be taken in the court which would have jurisdiction if the proceeding were between subject and subject.
(2) Every proceeding under this Part shall be taken by or against the Crown under the title of the “State of Victoria” and shall be instituted and proceeded with in accordance with any procedure of the court specifically applicable thereto or, if no procedure is specifically applicable thereto, as nearly as possible in accordance with the procedure applicable to proceedings between subject and subject.