Principles of Causation in Public Law Damages Claims

In Attorney-General v Putua [2024] NZCA 67, the Attorney-General successfully appealed a High Court decision ordering the Crown to pay $11,000 compensation to Mr Putua for a breach of the Bill of Rights Act 1990.

Mr Putua was sentenced in the District Court to four and a half years imprisonment on 16 charges. A deputy registrar prepared a committal warrant for a judge to sign. However, the deputy registrar mistakenly recorded part of the sentence as cumulative rather than concurrent in the warrant, and the sentencing Judge signed the erroneous warrant without noticing the error.

The result was that Mr Putua was imprisoned for 33 extra days before the error was noticed and corrected. He issued proceedings in the High Court seeking a declaration that he had been arbitrarily detained, in breach of s 22 of the Bill of Rights Act 1990, and sought damages against the Crown. The alleged breach was only in relation to the deputy registrar, not the sentencing Judge, as judicial immunity against personal liability in civil claims has been held to extend to Bill of Rights breach claims.

The Court of Appeal considered the question of whether the deputy registrar’s actions in preparing the warrant were also protected by judicial immunity. The Court held that the deputy registrar’s actions were part of implementing the Judge’s sentencing decision and assisting the Judge with complying with s 91 of the Sentencing Act 2002. Judicial immunity was engaged and, accordingly, the High Court was wrong to impose liability on the Crown for the deputy registrar’s error.

Significantly, the Court of Appeal also took the opportunity to discuss what principles of causation apply in public law damages claims. The Court of Appeal held that orthodox causation principles applied, such as those found in tort and contract law. This means that there may be multiple causes that contributed to the harm suffered, each attracting liability. The Court gave the example of the negligent creation of a building defect by a builder and a subsequent failure by an inspecting authority to detect it both attracting liability as contributing causes in tort.

In the present case, the Court said that, in some senses, the sentencing Judge had the primary responsibility to check the warrant for errors, as it was ultimately his document. However, this was not an intervening cause that broke the chain of causation, as the deputy registrar’s error directly led to the Judge’s error and the subsequent arbitrary detention. Both were operative causes.

This judgment helpfully clarifies the principles of causation that apply to Bill of Rights breach claims.

Concepts of operative and intervening causes from tort and contract law will be relevant when assessing possible liability.

Article written by Richard Belcher and Matt Page

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