$300,000 for RSA killings survivor

ONE CHAPTER CLOSES: Susan Couch, the sole survivor of the 2001 RSA killings, outside the High Court in Auckland earlier this year.
ONE CHAPTER CLOSES: Susan Couch, the sole survivor of the 2001 RSA killings, outside the High Court in Auckland earlier this year.

Susan Couch, the sole survivor of the RSA killings 11 years ago, has won a $300,000 settlement from the Corrections Department.

The announcement was made on Campbell Live last night but both Couch and her lawyer, Brian Henry, said they will fight on.

Henry said the next target would be ACC which had paid out almost nothing for Couch's injuries.

"It is just a closing of one chapter. We now need to get to the point where we can sue for compensation," he said.

Couch was never provided ACC compensation because she was working only part-time when she was attacked.

She has instead relied on benefit payments for more than a decade.

But the next battle could be significantly harder, requiring law changes to free ACC from strict requirements to consider income when paying compensation.

"She was absolutely done over by the system,'' her lawyer Brian Henry said.

"This is something that needs legislative change, it is a government-level thing."

The settlement is $200,000 short of what Couch was seeking and comes with no admission of wrongdoing by the department.

Henry said while it seems like a lot of money, it pales in comparison to what the attack has cost her.

‘‘Over 30 years, that $10,000 a year. That is less than the dole.’’

Couch acknowledged the settlement was the closest to an apology she would ever receive.

‘‘It’s not a formal apology it’s a ‘whoops sorry our bad’... I’ll take it.’’

The cumulation of the seven year legal battle had left her with exhausted, she told Campbell Live.

Corrections chief executive Ray Smith said he had pleased to reach an agreement with Couch that would "see her have a more secure future by being able to provide for her family".

"It seemed to me that Susan and her supporters were spending a lot of time and money taking this case against us, and we in turn were spending a considerable sum defending it to the benefit of neither parties nor taxpayers.

"I believed taxpayers money could be better spent which is why I pursued this matter directly with Susan and her lawyer.''

Smith said he set himself a deadline of the 11th anniversary attack on Saturday and if he wasn't able to achieve it he wanted it settled before Christmas.

"This is about doing the right thing for Susan and her family, as she has suffered quite extraordinarily as a result of an horrific crime committed more than a decade ago.

"While today's probation service is quite a different one to that which operated in 2001, having undergone significant changes to staffing and training, and having been internationally recognised for its practice model, no one, including me, can ever rule out a parolee committing a serious crime.

"It is my hope that this agreement with Susan will allow her to live a better life, she surely deserves that opportunity".

Couch was nearly killed when she was beaten by Bell in his armed robbery of the Mt Wellington-Panmure RSA in which three of her co-workers - Wayne Johnson, Mary Hobson and Bill Absolum - were shot dead.

She was left partially paralysed and brain-damaged.

In 2010 she won a significant victory in the Supreme Court giving her the right to sue the department for $500,000 in exemplary damages, claiming it had negligently handled Bell on probation, allowing him to plot and carry out the fatal robbery.

She wanted that trial to be held in front of a jury.

But two months ago Justice Timothy Brewer sided with the department and ruled there could be no jury.

Bell was working at the RSA under Probation monitoring at the time of the killing spree, having completed two-thirds of his sentence for an earlier brutal bashing of a service station attendant.

Couch has argued there was an extreme failure of duty by the Probation Service because the probation officer in Bell's case had encouraged him to work at the RSA despite his alcohol problem and propensity for violence.

Rather than a compensation bid, Couch's was a rare case of  a bid for exemplary damages, sometimes known as punitive damages, for the failure of the Department of Corrections to control the risk Bell posed.

Legal experts said that exemplary damages, such as those awarded to Couch, were rare because the law set the bar so high.

Auckland University law professor Bill Hodge said the law had always been there to be used by a litigant but ''it's just very hard to meet the standard''.

A precedent was set by the ''Three Clowns'' case where police were sued for damages over the 1981 beating of three anti-Springbok-tour protesters dressed as clowns.

He said that in the Couch case, Corrections had ''vicarious liability'' via its staff member.

Couch had to show that the department was more than just negligent - it had to be deliberate or reckless disregard.

The other complicating feature was that there had to be a survivor as the law said exemplary damages were only available to the living.

Estates of dead people got ACC compensation but were barred from seeking damages.

The Couch case was initially brought in the name of one of those Bell killed but Couch, as the survivor, had to see it through.

Hodge said this stipulation ruled out many cases that could seem similar, like the 1997 murder of Karl Kuchenbecker by parolee Graeme Burton near Wellington in January 2007 or the police motorway shooting of bystander Halatau Naitoko.

In those cases the affected person did not survive.

Hodge said Couch's case was, strength-wise, ''a 9-1/2 out of 10''.

''This is one of the worst criminals in New Zealand and they gave him to a junior person who may have been scared of him and refused to meet him.''

Hodge said he was disappointed when the courts ruled Couch's case would be held before a judge alone rather than by a jury, because it was too complex.

He said juries decided much more complex cases and it deserved to be heard by a jury of Couch's peers.

The family of Kuchenbecker, 26, had been assisted by the Sensible Sentencing Trust in suing police and the Corrections Department over his death.

However, his father Paul Kuchenbecker yesterday said the family was no longer pursuing the private prosecution.

''There's no guarantee of winning [as a third party] and you can spend a lot of money trying to get nowhere.''

Kuckenbecker said he was ''really pleased'' for Couch, but believed she should have sought more money.

''The way you teach them [government departments] is to fine them heavily.''

Bell was initially jailed for a minimum non-parole period of 33 years but that was reduced by three years on appeal. He is not eligible for parole until August 2032.

His co-offender Darnell Kere Tupe was sentenced to 12 years for manslaughter and concurrent terms for aggravated robbery. Tupe was granted parole earlier this year.