The family of Blessie Gotingco, who was murdered by an offender just out of prison, are crowdfunding with a view to a possible civil claim. The litigation following an earlier similar incident suggests that there are some pretty big legal obstacles in the way of a successful claim.

The family of Blessie Gotingco, who was murdered by Tony Robertson shortly after his release from prison, are crowdfunding the costs of undertaking their own review/investigation of the Department of Corrections’ management of Robertson, with a view to bringing a civil case. The aim of this post is to set out some of the legal obstacles in the way of a successful civil case by considering the lawsuits that followed an earlier case of an offender who committed violent crimes while under Corrections’ supervision.

To clarify: I’m commenting on a potential civil claim rather than the proposed review/investigation, and I’m not offering an opinion on whether people should or should not donate to the Gotingco family.

The RSA Panmure attack

In 1997, William Bell, aged 19, was turned down for a job at a service station. He returned to the station late at night, attacked an attendant with a stolen police baton, and stole money. He was convicted of aggravated robbery and sentenced to almost six years in prison. In accordance with the law at the time, he served three and a half years and was released from prison in 2001. The Parole Board set five release conditions, including counselling and that Bell work in a job approved by his probation officer.

Bell was assigned to be monitored by the Mangere probation office but none of the conditions were met. Bell found work experience at the RSA in Panmure, which he did not tell his probation officer about. He was asked to leave after two weeks. Two months later, he came back with a shotgun, bludgeoned and shot three people to death, and seriously injured Susan Couch.

The causes of action in the Hobson and Couch cases

Couch and Tai Hobson, the husband of one of the deceased victims, Mary Hobson, brought separate civil actions against Corrections. To bring civil proceedings, you need to identify your cause(s) of action – that is, the legal basis for claiming that the defendant should pay you damages. “Wrongful death” is not in itself a cause of action in New Zealand, you have to be more precise in terms of identifying a legal wrong.

The causes of action raised in the Hobson/Couch cases were:

• Breach of statutory duty;
• Misfeasance in public office; and
• Negligence.

The first two I will address briefly because they were unsuccessful. Breach of statutory duty is basically the idea that when a statute says that the state has a duty to act in a particular way, and the state doesn’t, this sometimes gives rise to a remedy for a person who has been harmed as a result. Hobson argued that this was the case for the parole laws at the time. The High Court disagreed, finding that when Parliament passed those laws, all they intended to do was to dictate to the officials running the parole system how they should act – there was no indication that Parliament also wanted private individuals to be able to bring civil lawsuits if the officials did not do what they were supposed to. 

Misfeasance in public office exists to address the situation where a government official intentionally misuses their powers. The claims on this basis were struck out by the Court of Appeal, on the basis that there was no evidence of any deliberate wrongdoing on the part of corrections officers.

The case for negligence

Negligence is a complex area of law but basically the idea is that you have a duty to act with reasonable care towards other people that you should realise you have the potential to harm. If you fail to do so – that is, you act carelessly/negligently – and harm someone as a result, you are responsible for compensating them for that harm.

One of the key questions in the cases following the RSA Panmure attack was whether Corrections owed Hobson and Couch such a duty at all. The High Court made an order striking out Hobson’s claim. Striking out a claim is a step a court can take if, even before having a full trial to determine the relevant facts, the court thinks that there is no way that the claim will succeed.

That decision was appealed to the Court of Appeal, and Couch’s case was joined with it so the Court of Appeal could address the duty of care question in both cases at the same time. A majority of the Court of Appeal thought that Couch’s claim should be struck out too.  The Court of Appeal was in agreement that Hobson’s claim should be struck out on the basis that Corrections did not owe him a duty of care. The rationale was basically that, if we consider the chain of relationships between the Department of Corrections, Bell, the people he injured, and their families, Hobson was one stage too far removed for there to be even a question of a duty of care.

Couch then appealed to the Supreme Court. The Supreme Court was unanimous in finding that the Court of Appeal was premature in striking out her claim on the basis that there was no duty of care without having had the benefit of a full trial.

ACC and exemplary damages

But the case didn’t go to a full trial right away, because the Supreme Court needed to make another decision on a further important aspect of the case.

In many places in the world, if you are injured due to someone else's fault, you can sue them to get compensation. In New Zealand, we have the Accident Compensation (ACC) scheme. This is often described as a “social contract” – we gave up the right to sue wrongdoers on the basis of fault in exchange for compensation for everyone on a no-fault basis. This means that Couch could not sue Corrections for compensatory damages to compensate her for treatment expenses, lost earnings and so on. Rather, she would have whatever ACC entitlements she is eligible for, and no more. Family members of murder victims can also get ACC entitlements and are also unable to sue for compensation. 

Instead, Couch’s claim sought exemplary damages – the purpose of which is not to compensate the injured plaintiff, but to punish the wrongdoer and deter the wrongdoer (and anyone else) from doing something similar in the future. Exemplary damages are reserved for the most outrageous sorts of behaviour. If you're wondering why a claim could not be brought on behalf of one of Bell's murder victims (as opposed to a family member) seeking exemplary damages, it's because estates cannot claim exemplary damages.

In the second decision, a majority of the Supreme Court decided that exemplary damages are only available in cases of advertent wrongdoing – that is, when the wrongdoer knows that they are doing something wrong. This doesn’t necessary mean that the wrongdoer has to be setting out to harm someone else on purpose, but they have to realise that they are running a risk.

Establishing this sort of conscious appreciation of risk is pretty difficult when it comes to negligence, which generally deals with people who have acted carelessly without doing so on purpose - without even realising that they are engaging in risky behaviour. For example, getting distracted by your cell phone while driving and hitting a pedestrian might be bad behaviour but it's not advertent wrongdoing. Advertent wrongdoing is more like spotting a pedestrian approaching a crossing and deciding not to slow down and to just take the risk that you might hit them. This led some people to wonder whether the Supreme Court had basically ruled out the possibility of Susan Couch ever getting a payment of exemplary damages.

The outcome of the Couch litigation

Before any further court decisions, The Department of Corrections paid Susan Couch $300, 000 to settle the case. After that news broke, Andrew Geddis commented that:

So we'll need to be careful in treating Susan Couch's case as some sort of benchmark or precedent for future actions. For one thing, we should all fervently hope that there isn't another person as clearly worthy of a payout as Susan Couch was in the future... [N]ext time the issue might actually end up in front of a court. And we still don't know what will happen then.

These comments are fair considering that we have never had any definitive rulings on (i) whether Corrections owed Couch a duty of care (remember, the Supreme Court only found that it was wrong to rule the possibility out, not that there was a duty) (ii) if so, whether that duty was breached and (iii) if so, whether it was a suitable case of exemplary damages. What the cases following the RSA Panmure attacks do, though, is illustrate the obstacles in the way of a successful civil claim by the Gotingco family.

Obstacles in the way of a successful civil claim by the Gotingco family:

1. Cause of action

The first obstacle is identifying a viable cause of action. Of those raised in the Hobson/Couch cases, only negligence seems likely to have any prospect of success. The Q&A on the givealittle page mentions Human Rights - perhaps there's a claim based on the Bill of Rights Act but that's not really something I know enough about to comment on. So I will assume that the most viable way to proceed is a negligence claim.

2. Establish a duty of care owed by Corrections to the Gotingco family

The Court of Appeal found that Corrections did not owe a duty of care to Hobson, the husband of one of Bell's murder victims. That precedent would probably need to be overturned for a claim by Blessie's family to proceed.

3. Establish a breach of duty of care

Even if there is a duty of care, the government inquiry into Blessie's murder suggests that any duty was not breached. That's not to say that further evidence (perhaps revealed in a further investigation) might suggest a stronger case for fault. This is a point of difference with the Hobson/Couch litigation, where Corrections accepted that it had been in error.

4. Exemplary damages

Even assuming a breach of a duty of care on Corrections' part, this leaves us with the question of the threshold for exemplary damages. The question is: did Corrections knowingly take an outrageous risk in its handling of Blessie's killer? Again, further evidence would probably be needed to meet this threshold.

Conclusion

If the outcome of the cases following the RSA Panmure attack is anything to go by, there are some rather large legal obstacles in the way of a successful civil claim by the Gotingco family. Although the settlement of the Couch case left many legal questions unanswered, the decision by the Court of Appeal that Corrections did not owe a duty of care to the husband of one of Bell's other victims still stands, and poses a serious obstacle to any case by the Gotingco family.