Taylor v Roper

• Jurisdiction: New Zealand
• Judge: Edwards J
• Judgment Date: 28 January 2025
• Neutral Citation: [2025] NZHC 30
• Court: High Court
• Docket Number: CIV-2016-404-001149

IN THE MATTER OF a claim of historic sexual abuse

Between

Mariya Ann Taylor

Plaintiff

and

Robert Roper

First Defendant

Attorney-General

Second Defendant

[2025] NZHC 30

Edwards J

CIV-2016-404-001149

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Accident Compensation, Damages — claim for exemplary damages against the Royal New Zealand Airforce for sexual abuse and false imprisonment — exemplary damages for vicarious liability — liability of the Crown in tort — Accident Compensation Act 2001 — Crown Proceedings Act 1950

The issues were: whether exemplary damages should be awarded for vicarious liability and whether the RNZAF could be held directly liable in tort.

The Court held exemplary damages should not be awarded. The Court of Appeal confirmed in S v Attorney-General [2003] 3 NZLR 450 that exemplary damages were generally unavailable for vicarious liability. Such awards were not substitutes for compensatory damages and should not be used as a way of circumventing the accident compensation scheme. The Court of Appeal had also confirmed in Attorney-General v Strathboss Kiwifruit Ltd[2020] NZCA 98, [2020] 3 NZLR 247 that s6 Crown Proceedings Act 1950 (liability of the Crown in tort) meant the Crown could not be sued directly in tort.

Even if it could be established the RNZAF owed a duty of care as an employer, the evidence fell short of the high threshold for exemplary damages to be awarded in cases of negligence. There was no evidence that the RNZAF consciously appreciated the risks that R posed to T and decided to deliberately run those risks. Nor was there any evidence of outrageous, high-handed, malicious, or wilful conduct which would attract an award of exemplary damages for negligence. It was R who was the wrongdoer; not the RNZAF. The fact that processes have been changed in the last 30 years meant that an award of exemplary damages would not serve a deterrent purpose either.

Appearances:

G F Little SC and D B Beard for Plaintiff

J F Mather and L M Herbke for First Defendant

A C M Fisher KC and E N C Lay for Second Defendant

An award of exemplary damages against the RNZAF could not be justified on the law and the evidence called at trial. The claim was dismissed.

JUDGMENT OF Edwards J

This judgment was delivered by me on 28 January 2025 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

1 Ms Taylor seeks an award of exemplary damages against the second defendant (sued in respect of the Royal New Zealand Air Force, referred to as the RNZAF in this judgment). Her claim arises out of the sexual abuse and false imprisonment she suffered at the hands of Mr Roper when they were both in the RNZAF in the 1980s.

2 Exemplary damages are in a different category to those routinely sought in a civil claim. Rather than compensating for harm suffered, they are aimed at punishing a wrongdoer for outrageous conduct and deterring the wrongdoer and others from acting in the same way. Words like “contumelious”, “high-handed”, “oppressive” and “wilful” are used to describe the sort of conduct which attracts an award of exemplary damages.1

3 The claim for exemplary damages against the RNZAF is the only part of Ms Taylor's claim which remains. Proceedings were commenced in 2016. The trial took place in 2018 and the first High Court judgment was issued that year.2 Appeals from the judgment then followed, culminating in a Supreme Court decision which confirmed that Ms Taylor's claim for compensation was barred by the Accident Compensation Act 2001 (ACC Act).3 The claim for exemplary damages was remitted to this Court for determination. Subsequently, Ms Taylor discontinued her claim for exemplary damages against Mr Roper. She proceeds only against the RNZAF.

4 The claim for an award of exemplary damages is opposed by the RNZAF. The RNZAF says the claim cannot be established at law as exemplary damages are not awarded in cases of vicarious liability, and the Crown cannot be sued directly in tort. More importantly, it says that its conduct falls far short of that which would attract an award of exemplary damages, and an award would not act as a deterrent given the changes that have occurred in the last 30 years in the way abuse complaints are handled in the RNZAF.

5 Ms Taylor also makes an application for leave to adduce a report prepared by Ms Frances Joychild KC in 2018 (the Joychild report) as evidence in the proceeding. This report followed an independent inquiry established by the Chief of the RNZAF into the way the RNZAF handled complaints relating to Mr Roper's conduct in the 1980s.

6 The RNZAF opposes the application to adduce the Joychild report on the basis that it comprises hearsay and opinion statements and is not cogent of the issues in dispute. Moreover, it was available to Ms Taylor's lawyers prior to trial, as were the statements of some of those interviewed by Ms Joychild for the inquiry. Many of these interviewees were called as witnesses at the trial.

Relevant background

7 The background to the claim is set out in my judgment dated 5 September 2018.4 Only the key events are referred to below.

8 Ms Taylor was an aircraftsman with the RNZAF in the 1980s and was stationed at Whenuapai. Mr Roper was a sergeant with the RNZAF at this time.

9 Between 1985 and 1988, Ms Taylor was working in the same section as Mr Roper. In the first trial, I found that Ms Taylor was subjected to sexual abuse and intimidation by Mr Roper during her time there. This included: being locked in a car and groped by Mr Roper as she drove him home at night; 5 being locked in a tyre cage and prodded with an iron bar; 6 and touched and ogled in an overly sexualised way (touching her bottom, pulling on her bra strap, rubbing himself against her, and peering at her and others in the changing rooms and on parade).7 I found that Mr Roper's abuse of Ms Taylor was a material and substantial cause of her post-traumatic stress disorder.8

10 Ms Taylor said she complained about this conduct to her superiors. However, 30 years on, I found there was insufficient evidence to establish that Ms Taylor had complained.9 This factual finding was upheld on appeal.10

11 Following Mr Roper's convictions for sexual offending in 2014, Ms Taylor made a complaint to the police. In 2015, the RNZAF commenced the independent inquiry into the way complaints about Mr Roper had been dealt with at this time. This inquiry was led by Ms Joychild. Ms Taylor was interviewed by Ms Joychild as part of that inquiry.

12 Ms Taylor subsequently filed this proceeding on 27 May 2016 and withdrew her criminal complaint against Mr Roper.

13 As is discussed later, a draft of the Joychild report was prepared in 2017 and finalised in early 2018. It was provided to Ms Taylor's lawyer in February 2018, shortly before the High Court trial.

High Court, Court of Appeal and Supreme Court judgments

14 The trial in this Court commenced on 5 March 2018. Judgment was delivered on 5 September 2018.11

15 I found that Mr Roper did most, but not all, of the acts alleged by Ms Taylor, but he did not do them as frequently as she had alleged.12 As already noted, I found the allegation that Ms Taylor had complained to her superiors was not proved on the evidence. I held that Ms Taylor's claim was barred by the Limitation Act 1950 and the ACC Act.13

16 Ms Taylor appealed. A majority in the Court of Appeal found that the claim was not barred by the Limitation Act 1950, and the claim for false imprisonment was

not barred by the ACC Act. 14 The appeal was allowed on those two grounds only. Factual findings, including that there was insufficient evidence that Ms Taylor had complained, were upheld. 15

17 There were applications for leave to appeal to the Supreme Court by all parties. The Supreme Court granted leave to appeal on issues concerned with the application of the ACC Act, and its application to the claim for false imprisonment.16 The appeal was allowed on the latter ground and the finding that the false imprisonment claim was barred by the ACC Act was reinstated.17

18 Ms Taylor's claim for exemplary damages was remitted to this Court for determination.18

The scope of Ms Taylor's claim

19 The outstanding issues in this case are to be determined by reference to Ms Taylor's pleaded claim against the RNZAF and the evidence adduced at trial.

20 Ms Taylor's claim is pleaded in her amended statement of claim dated 21 November 2016. Four causes of action in tort are pleaded.

21 The first three are pleaded against Mr Roper and the RNZAF for: assault; intentional infliction of emotional harm; and false imprisonment.

22 The RNZAF's liability in relation to these three causes of action is said to arise both vicariously and directly. The direct liability claim is on the basis that Mr Roper was acting as the RNZAF in relation to Ms Taylor. That is, Mr Roper's actions are directly attributable to the RNZAF.

23 The fourth cause of action is against the RNZAF alone. It is pleaded that the RNZAF owed Ms Taylor a duty of care as an employer or being in a position

analogous to an employer. In essence, the alleged breaches relate to an alleged failure by the RNZAF to keep Ms Taylor safe from Mr Roper, to act on complaints, and to prevent him from continuing to assault, sexually harass, falsely imprison, and bully her

24 The scope of that duty is restricted to failures by the RNZAF in relation to Mr Roper's conduct towards Ms Taylor. It does not relate to the way the RNZAF handled claims of sexual abuse and misconduct more generally. That is, it is not a claim for systemic failure in the broad sense. This was confirmed by the Court of Appeal.19

25 Finally, for completeness, I record that the statement of claim includes a claim for exemplary damages in the sum of $150,000 (in addition to other heads of...