Pcw v The Attorney-General Hc Wn

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 03 December 2010
• Neutral Citation: [2010] NZHC 959
• Docket Number: CIV-2006-485-874
• Court: High Court
• Date: 03 December 2010

BETWEEN

P

Plaintiff

and

The Attorney-General

Defendant

[2010] NZHC 959

CIV-2006-485-874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application for an order specifying what costs would have been made against the plaintiff if his liability to pay costs had not been affected by s40 Legal Services Act 2000 “LSA” (liability of aided persons for costs). Unsuccessful claim for substantial damages and other orders arising out of alleged sexual and physical abuse of plaintiff when he was in the navy. Plaintiff was in receipt of legal aid. Defendant did not seek an order for costs against plaintiff — whether it was appropriate for the Court to exercise its discretion to make an order under s40(4) LSA (order may be made specifying what order for costs would have been made).

Counsel:

Ms Cooper with Mr Benton for the plaintiff

Mr Hancock with Ms Schmidt for the defendant

JUDGMENT OF Mallon J

Contents

Overview	[1]
Introduction	[2]
The claim in outline	[5]
Evidence rulings.	[12]
Summary of my decision	[13]
ACC bar	[19]
The statutory bar	[19]
The parties' respective positions.	[22]
Mental injury from sexual assault	[27]
Mental injury from threats and intimidation	[32]
Can a mental injury be divided between covered and uncovered causes anyway?	[52]
Does from the claim for mental injury from threats and intimidation
arise indirectly out of personal injury covered under the 2001 Act	[58]
Vindicatory damages for tort causes of action.	[59]
“Pure” financial loss.	[68]
Conclusion on ACC bar	[71]
Exemplary damages	[74]
The basis on which exemplary damages are claimed	[74]
The law	[78]
Exemplary damages on a vicarious liability basis here?	[90]
Exemplary damages for direct conduct?	[94]
a) Navy terminology	[97]
b) Official Navy position on homosexuality in the Service	[100]
c) Official investigations involving AZ	[111]
d) Did the Navy comply with policy with respect to investigations of AZ	[125]
e) Apart from official investigations, what else was known about AZ.	[128]
f) The alleged sexual assault	[135]
g) The plaintiff's evidence of complaint	[139]
h) Events leading to AZ's release	[143]
i) Navy subjectively reckless in handling of plaintiff's complaint?	[155]
j) The alleged threats and intimidation.	[160]
Breach of domestic and international human rights instruments	[179]
The Bill of Rights (Imp.) 1688	[181]
UDHR	[196]
ICCPR	[204]
NZBORA.	[207]
Further issues	[212]
Other matters	[213]
Sexual assault?	[214]
Threats and intimidation?	[236]
Mental injury	[251]
a) what must be established	[251]
b) PTSD as a medically identifiable disorder.	[252]
c) Applying the PTSD diagnosis in the court setting.	[259]
d) Does the plaintiff have a mental injury?.	[267]
Causation.	[275]
Limitation Act	[285]
a) The tort claims	[285]
b) Reasonable discoverability	[290]
c) The “disability” issue	[308]
d) The fiduciary duty claim	[315]
e) The Human Rights claims	[316]
f) Leave?..	[317]
Remaining matters	[318]
Result	[319]
Appendix 1: Evidence rulings

Overview

Introduction

1 The plaintiff claims damages for an alleged sexual assault on him by AZ in February 1984 on board a Royal New Zealand Navy (the Navy) ship at a time when they were both in the Navy. He also claims damages for alleged threats and intimidation, from other Navy personnel, for reporting the sexual assault. The claim is one of a number of civil claims that have been brought in recent times for alleged abuse (of one kind or another) occurring many years ago suffered by someone who is alleged to be under the responsibility of, or in the care of, the state or private institutions.

The facts in outline

2 In 1982, when the plaintiff was 17 years old, he joined the Navy as a steward. In 1983 his posting was on the HMNZS Canterbury. He shared sleeping quarters (known in the Navy as “a mess”) with other stewards. One of them was AZ. AZ was a Leading Hand, and so was of a higher rank than the plaintiff. The plaintiff alleges that in February 1984, when the ship was in port at Timaru, AZ sexually assaulted him (fondling his genitals, performing oral sex on him and attempting to sodomise him) when the plaintiff was in his bunk and AZ had returned to the mess from a night out ashore. The plaintiff alleges that the next morning he told another Leading Hand that he had been sexually assaulted. He alleges that this Leading Hand told him, in a threatening and intimidating way, not to take the matter any further and that this was reinforced by other Leading Hands later that day.

3 In June 1984, when the ship was in Seattle, the plaintiff and others from the same mess made statements about AZ to the Master At Arms (the ship's regulator). The plaintiff's statement referred to AZ having fondled his genitals but did not make the other allegations (oral sex and attempted sodomy). The other statements concerned other sexual or suspected sexual activities by AZ with another Leading Hand which were potentially of a consensual nature, as well as unwanted sexual advances of a minor nature made by AZ on others in the mess. These events occurred at a time when homosexual conduct between males was a criminal offence and was grounds for discharge from the Navy. Immediately following the Master At Arms investigation, AZ was removed from the ship, flown back to New Zealand and discharged from the Navy. The plaintiff alleges that, when others on the ship learned of the complaints that had been made which led to AZ's removal from the ship, he was threatened and intimidated by a number of the Leading Hands on the ship.

4 The plaintiff says that as a result of these events he became very unhappy with life in the Navy, and as a result he left the Navy in July 1985. He alleges that he was unable to deal with these events and suffered psychological problems for which he ultimately sought help from professional health advisers. He made a claim for, and was granted, accident compensation cover in 2004 for his mental health difficulties and brought this claim in April 2006.

The claim in outline

5 The plaintiff brings six causes of action.

6 There are three claims in negligence. The first of the negligence claims alleges, in summary, that the Navy owed the plaintiff a duty of care to ensure that he was placed in appropriate working and living conditions which it breached by failing to take earlier action to remove AZ from the Navy and for failing to take appropriate action in response to his complaint. The second negligence claim is that the Navy has vicarious liability for the sexual assault perpetrated by AZ, subsequent taunts from AZ and threats and intimidation from the Leading Hands. The third negligence claim is that the Navy owed the plaintiff a “non-delegable” duty of care under which it assumed a particular responsibility for the plaintiff's wellbeing.

7 A fourth claim is for assault and battery on the basis that the Navy is vicariously liable for the sexual assault and the subsequent threats and intimidation.

8 The fifth cause of action contends that there was a fiduciary relationship under which the Navy was required (amongst other things) to take all reasonable steps to protect the plaintiff from harm. The alleged breach of this duty covers the same ground as the negligence causes of action.

9 The sixth cause of action contends that the sexual assault and bullying and intimidation was cruel and unusual punishments on him (Article 10 of the Bill of Rights 1688 No 2 (Imp)) and amounted to torture and/or cruel, inhuman or degrading treatment or punishment (Article 5 of the UDHR and Article 7 of the ICCPR).

10 The first to fifth causes of action seek the same relief, namely:

• a) general damages in the sum of $200,000 for mental injury not covered by the accident compensation legislation;

• b) exemplary damages in the sum of $85,000;

• c) special damages for pecuniary loss of past earning capacity in the sum of $250,000;

• d) interest on the sum of $250,000; and

• e) general damages for loss of future earning capacity in the sum of $150,000.

11 The sixth cause of action seeks a declaration and other orders. It also seeks damages of $100,000, special damages for pecuniary loss of past earning capacity of $50,000, interest on the $50,000 and general damages for loss of future earning capacity of $100,000. 1

Evidence rulings

12 There were some objections to various aspects of the evidence. The only matter on which it was necessary for to make a ruling at the time of the hearing was

in respect of the relevance of certain questions counsel for the plaintiff wished to put to AZ in cross-examination. Attached at Appendix 1 is the ruling I gave on that matter. The only other matter I needed to specifically rule upon in determining this claim concerns the admissibility of what the plaintiff said to others about what had occurred to him. My ruling on this is also set out in Appendix 1

Summary of my decision

13 I have concluded that, apart from the claims for exemplary damages, the plaintiff's claim under...