Chapter 3
Tort law and Crown liability

The effect of employee immunity under other Acts

3.18Under the current vicarious model of tort liability, the Crown is entitled to rely upon immunities granted to individual officers. This is confirmed by section 6(4) of the Crown Proceedings Act which provides:

Any enactment which negatives or limits the amount of the liability of any Government Department or officer of the Crown in respect of any tort committed by that Department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that Department or officer, apply in relation to the Crown as it would have applied in relation to that Department or officer if the proceedings against the Crown had been proceedings against that Department or officer.

3.19The New Zealand statute book contains numerous immunities from liability, and immunities that are often drafted differently. The Law Commission has previously conducted a survey of such provisions, and in its Report 37 the Commission made a number of recommendations about the nature of such immunities which have since been followed in the statute books.27 Those provisions often follow the model of section 6(4), providing an immunity for a particular official who has acted in good faith. A recent example of such a provision is contained in the Freedom Camping Act 2011:
(1) An enforcement officer is not liable for any loss or damage to property arising directly or indirectly from the seizing and impounding of the property under section 37.
(2) Subsection (1) does not apply if the enforcement officer acted without good faith or if his or her omission or neglect was a major departure from the standard of care expected of a reasonable person in the circumstances.

3.20The effect of those provisions is not just to protect the individual officer but also to protect the government department that the officer serves.

3.21One difficulty of adopting a direct liability regime and removing section 6(4) would be that all such provisions in other legislation would need to be reassessed to determine whether in fact the policy behind them was intended to protect the individual officer or whether the department was also intended to be protected. Where the intention of the immunity provision in a statute is to protect the department as well, legislation will need to be amended to preserve it if the proposed change to section 6(4) is enacted.

3.22While the Commission’s view is that in future, Crown proceedings legislation ought to provide for direct tort liability, and not require that a particular officer be liable in tort, the reality is that many government protections are premised at the moment on the assumption in section 6(4). Once a new Act is passed, those drafting new statutes would, of course, be able to assess directly whether immunising the government department as well as the public servant from liability is justified.

3.23The difficulty, then, is what to do with the range of protections that already exist. One option is a deeming clause, which would recognise the reality that the Crown at the moment is usually vicariously, rather than directly, liable in tort. Such a clause could simply deem that those protections currently applying to an officer apply to the Crown itself, regardless of whether the officer could otherwise be liable in tort. Such a change would require a re-drafting of section 6(4) to apply to statutes that were enacted before the new statute. It would be hoped that over time those who draft statutes would take account of this change.

Approach in our draft Bill

3.24The proposed Bill would no longer premise Crown liability on vicarious liability, and hence would potentially leave it open to the Crown to be held liable. The Bill assumes a revision of current immunity provisions to determine if they ought still apply to protect the Crown. Another approach would be simply to deem current immunities to apply to the Crown even though the Crown could be sued directly under the Act.

27Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s Case and Harvey v Derrick (NZLC R37, 1997).