Motorway shootout victim's fight for compensation

Courier driver Halatau Naitoko died after being accidentally shot during the January 2009 incident. Photo / Brett Phibbs

An innocent man injured in a motorway shootout will appeal the High Court's decision to throw out his bid for compensation.

Richard Stephen Neville launched legal proceedings claiming $1.4 million after he was sprayed with shrapnel and glass shards when shots were fired by a police armed offenders squad member during the 2009 incident on an Auckland motorway.

Police were pursuing rifle-wielding car thief Stephen McDonald, who was in the back of the plaintiff's truck at the time.

But the case made headlines primarily because courier driver Halatau Naitoko was killed by a stray police bullet.

Justice Geoffrey Venning released his judgement two weeks ago, striking out Mr Neville's claim because there was "no reasonably arguable cause of action".

But today the former blacksmith said he had made the "difficult decision" to file appeal papers this week.

Mr Neville said he now had three barristers dealing with the matter.

For the recent hearing, he provided an affidavit to the High Court at Auckland saying the actions of the police gunman - known only as Officer 84 - amounted to gross negligence or recklessness.

His shot went through the front windscreen of the vehicle but Crown lawyer Peter Gunn, acting on behalf of the Attorney-General, said that was clearly an accident.

Justice Venning agreed the action could not succeed because "the plaintiff cannot establish that Officer 84 knew at the time he fired the shot it was unsafe nor that it would cause death or severe injury to the plaintiff".

Even if that was the case, the judge said the scenario did not reach the threshold for the purpose of section nine of the New Zealand Bill of Rights Act, relied on by the plaintiff.

"While the seriousness of Mr Neville's injuries must not be discounted, countervailing factors such as the emergency situation faced by the police and the officer's duty to take action to protect members of the public also need to be weighed," Justice Venning said.

"The police identified Mr McDonald as presenting a risk to life and the public in general and in that sense the actions of shooting at him can be seen as proportionate."

A date for the case to be heard by the Court of Appeal has not yet been set.