KEY POINTS:
The survivor of the 2001 Auckland RSA triple murder has been granted the right to sue the Department of Corrections for damages.
Susan Couch suffered serious injuries and spent years in rehabilitation after William Bell wounded her and killed three other employees at the Mt Wellington-Panmure RSA. He was on parole at the time.
The Supreme Court upheld her appeal for the right to sue the department, which manages Parole Board orders.
Bell had 102 previous convictions and was on parole when he went to the RSA where he had worked as a barman. He killed Mary Hobson, Wayne Johnson and William Absolum.
Ms Couch had argued Bell was a violent offender known to be a risk to public safety and Corrections and the Probation Service had a duty to protect the public from him.
Corrections did not supervise him properly, nor provide appropriate warnings of the risk he posed, she said.
In 2006, Court of Appeal struck the claim out, saying no duty of care was owed by the Probation Service to Ms Couch. Without a duty of care, the claim for damages could not be actioned.
Today, the Supreme Court said it was premature to strike the claim out.
Chief Justice Sian Elias and Justice Noel Anderson said the court was unanimous that in law the Probation Service may owe a duty of care to the victim.
That meant the Court of Appeal reasons for striking out the claim fell away.
The case should be allowed to go to trial before any final decision could be made as to whether Corrections could be liable for exemplary damages.
"If a duty of care cannot confidently be excluded, the claim must be allowed to proceed," they said.
"It is only if it is clear that the claim cannot succeed as a matter of law that it can be struck out.
"We are of the view that the claim is not so clearly untenable as to be suitable for peremptory determination on untested facts."
Whether Ms Couch was now entitled to exemplary damages would have to be determined - either before or at a trial - they said.
The appeal was adjourned for a month so both sides could consider the question of damages, and file memoranda on that.
If a further hearing was required, a fixture date would then be set.
The other three judges - Justices Peter Blanchard, Andrew Tipping and John McGrath - accepted Ms Couch could possibly establish Corrections "had sufficient power and ability to control Bell in a way which would have prevented the harm which Ms Couch suffered".
But there had to be "special risk", so Ms Couch had to prove she was unduly at risk due to her proximity to Bell, rather generally at risk due to his release on parole, they said.
The fact that Ms Couch worked at the RSA with Bell, who had issues with alcohol and had carried out the aggravated robbery of a service station, did not in itself create a distinct and special risk, they said.
"There is nothing in Bell's history which suggest that either those with whom he was in contact frequently or those with whom he associated in an employment environment, were the subject of any enhanced risk."
They said it was possible a reformulated claim might succeed and so it would be premature to strike it out "at this stage of proceedings".
"We consider that in this case it is necessary and, if not necessary, desirable to make an ultimate determination when all relevant facts have been examined and conclusions can be reached upon them."
The hearing of the appeal should be adjourned to make submissions on exemplary damages, they said.
"The appeal should be allowed and the case permitted to go to trial."
The Court of Appeal, by a majority, had ruled against Ms Couch in 2006 in her bid to sue Corrections for $2.55 million.
- NZPA
