David Garrett: A way to redress Hobson's choice

Tai Hobson, the widower of one of William Bell's victims at the Panmure RSA in 2001, has just lost the latest round of his battle against the Government for compensation. The Court of Appeal, in a majority decision, has confirmed the High Court's decision to "strike out" his case.

Hobson now faces two formidable hurdles if he wishes to continue the fight: persuading the Supreme Court to hear his case, and if that court does agree to hear it, persuading a majority of the judges on the bench that the case deserves a full hearing in the High Court.

Even if he surmounts those hurdles he may still lose in the High Court, based on the law as it presently stands.

The two causes of action pursued by Hobson - negligence and misfeasance in public office - are rare examples of "judge-made law".

Most of our laws are made by Parliament, and rightly so. For reasons which are irrelevant to this article - and would send readers to sleep - judges and not politicians mould the "torts" of which the above are two examples. Crucially, however, judges' power to shape torts is not absolute.

If Parliament chooses, it can intervene and legislate to modify, or even abolish, a tort. One example involves the law of negligence - one of the "causes of action" pursued by Hobson.

In 1947 Parliament modified the law of negligence by passing the Contributory Negligence Act. In simple terms, that act means that if, for example, one driver caused a collision by driving through an amber light, but the car he hit was speeding, it can be argued in reduction of damages that the driver of the hit car shared some of the blame and thus should receive less than he otherwise would.

A more dramatic example of parliamentary intervention is the abolition of the right to sue for personal injury. In 1974 the Accident Compensation Act simply abolished a significant part of the law of torts.

If a parliament can intervene thus, it can also fix the ludicrous situation which now gives Hobson's wife's killer the right to claim compensation if his privacy or his "rights" are infringed in prison, but leaves Hobson battling for recognition that he even has a claim to pursue.

Most people - aside from some human rights lawyers and academics - see the present situation as outrageous and unjust.

Although some people would be happy for Bell to spend the rest of his life in a cage eating bread and water, most would grudgingly concede that he should be adequately fed and housed but that is where his "rights" should end.

He has arguably disqualified himself from any further rights because of his conduct.

A solution to this injustice is legally quite simple, but politically very difficult.

If the government of the day were willing, it could draft a law allowing people in Hobson's position the right to sue - in a proper case as defined in the law - and leave it to the judges to decide whether any particular case met the criteria laid down in the statute.

If anyone in the present Government is even interested in Hobson's case and the latest development in it, they would probably simply shrug and say, "Well, that's the law, the judges have spoken."

That is simply a cop-out. Unless our constitutional arrangements are radically changed, Parliament has power over the courts.

The judges of the Court of Appeal have simply applied the law as they perceive it to be.

Parliament can and should change that law.

That won't help Hobson. But, sadly, he won't be the last person to suffer indirectly from the actions of people such as William Dwayne Bell.

* David Garrett is an Albany barrister.