Contents

Chapter 2
Why a new Crown Civil Proceedings Act?

Modernisation

2.12In most respects, the changes we are recommending in the new Bill are subtle but nevertheless important.

2.13Under the Bill, the Crown can be sued directly in tort, as opposed to vicariously, for the actions of its servants, just as it currently can be in contract. The Crown could be “sued” directly in New Zealand before the 1950 Act,6 although currently, the Crown can only be sued vicariously, with limited exceptions in the Act.7

2.14The purpose of the proposed change is not to increase the potential liability of the Crown. In Australia, the Crown can be directly sued in various states, and 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, owe 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.

2.15Under our recommended change, 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 v Attorney-General8 shows the generally conservative nature of New Zealand courts in this area.9

2.16This issue and also the other more significant policy issues raised in the Issues Paper are canvassed below in Chapter 3.

6See 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.
7For 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).
8Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 [Couch (No 2)].
9See Geoff McLay “The New Zealand Supreme Court, the Couch case, and the future of government liability” (2009) 17 Torts Law Journal 77.