High Court dismisses claim for exemplary damages against Royal New Zealand Air Force

The case involved alleged sexual abuse and false imprisonment in the air force during the 1980s

High Court dismisses claim for exemplary damages against Royal New Zealand Air Force

The High Court dismissed a claim for exemplary damages against the Royal New Zealand Air Force (RNZAF), ruling that the legal threshold for such damages was not met.

The case arose from allegations of sexual abuse and false imprisonment suffered by the claimant while serving in the RNZAF in the 1980s. The alleged perpetrator was a superior officer, and the claim sought to hold the RNZAF accountable for its handling of the situation.

A High Court judgment in 2018 found that while much of the alleged conduct had occurred, the Accident Compensation Act 2001 barred the claim. After a series of appeals, the Supreme Court upheld that ruling but allowed the claim for exemplary damages to proceed. Unlike compensatory damages, exemplary damages are intended to punish outrageous conduct and deter future wrongdoing. The claim against the RNZAF was the only remaining aspect of the case after the claimant discontinued a similar claim against the individual responsible for the abuse.

The RNZAF opposed the claim, arguing that exemplary damages could not be awarded for vicarious liability, meaning an employer cannot be punished for an employee’s wrongful acts. It also maintained that the Crown could not be sued directly in tort, citing established legal precedent. Additionally, it asserted that its conduct did not meet the high threshold required for exemplary damages, particularly given the reforms in handling abuse complaints over the past 30 years.

The court agreed with the RNZAF's position. It cited a 2003 decision that established that exemplary damages require deliberate, reckless, or grossly negligent conduct by the entity being sued. The court also referred to another ruling which confirmed that the Crown can generally only be sued vicariously in tort, not directly. On that basis, the court found that the RNZAF could not be held liable for exemplary damages.

For exemplary damages to be awarded in negligence cases, the Supreme Court in Couch v Attorney-General (No 2) (2010) established that a defendant must have acted with intentional and outrageous conduct or subjective and outrageous recklessness. The High Court found no evidence that the RNZAF had consciously appreciated the risk to the claimant and deliberately ignored it, nor that it had acted in a high-handed, willful, or malicious manner. While some evidence suggested that RNZAF personnel were aware of inappropriate behaviour by the alleged perpetrator, the court held this was insufficient to meet the high bar for exemplary damages.

The court also ruled that an award of exemplary damages would not serve a deterrent purpose, given that the RNZAF has since implemented significant reforms, including Operation Respect and other measures addressing sexual misconduct and workplace safety. The court determined that imposing an exemplary damages award for events that occurred in the 1980s would not align with the deterrent purpose of such damages, particularly as the RNZAF’s policies and practices have changed substantially over the past three decades. Ultimately, the court dismissed the claim for exemplary damages.