ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AS ORDERED IN [174].
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-000881
[2020] NZHC 3401
UNDER
the New Zealand Bill of Rights Act 1990 and the Corrections Act 2004
IN THE MATTER OF
negligence, breach of duty of care, breach of statutory duty and breach of constitutional rights
BETWEEN
A
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing:
5 - 7 and 23 October 2020
Appearances:
Plaintiff in person
A Powell & L Dittrich for the Defendant J McHerron as Counsel to Assist
Judgment:
17 December 2020
JUDGMENT OF DOOGUE J
This judgment was delivered by Justice Doogue on 17 December 2020 at 3.30 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
Solicitors:
Crown Law, Wellington
A v ATTORNEY-GENERAL [2020] NZHC 3401 [17 December 2020]
Introduction [1]
Background [7]
How Corrections as an institution assesses, manages, and attempts to mitigates risks posed by prisoners to other prisoners [7]
Assessing and mitigating generalised risk [11]
Assessing and mitigating risk to particular individuals [24]
Mr A’s relevant history of incarceration [29] The first assault: 5 January 2017 [32]
The second assault: 25 April 2017 [44]
The third assault: 10 June 2017 [54]
Submissions [66]
Plaintiff’s case [66]
Defendant’s case [67]
First cause of action: the tort of negligence [72]
Did Corrections owe a duty of care to Mr A? [73] Case law on the existence of a duty of care owed to prisoners [78] Is a common law duty of care in negligence precluded by the statutory framework governing prison authorities? [86]
Conclusion [92]
Did Corrections breach its duty? [94]
The law [94]
Discussion [110] The first assault: 5 January 2017 [113]
The second assault: 25 April 2017 [121]
The third assault: 10 June 2017 [126]
In breaching its duty, did Corrections cause the damage suffered by Mr A? [141]
Was the damage Mr A suffered a sufficiently proximate consequence of the breach (in other words, was it too remote)? [142]
Are exemplary damages warranted? [143]
The law [143]
Analysis [150]
Conclusion [151]
Second and third causes of action: claims under the New Zealand Bill of Rights Act 1990 [152]
The legislative framework and the relationship between ss 9 and 23(5) [153] Case law on what constitutes a breach of ss 9 or 23(5) of BORA [162] Analysis [165]
Conclusion [170]
Result[171]
Orders [174]
Introduction
[1]The plaintiff, Mr A, is serving a long term of imprisonment.
[2] Mr A was the victim of three assaults by two prisoners, Mr B and Mr C, between January and June 2017 at Whanganui Prison.
[3] First, Mr A claims in negligence that the Department of Corrections (Corrections) owed him a duty of care to keep him safe from harm from other prisoners, and that Corrections officers breached that duty by allowing him to be harmed by Mr B and Mr C (the courts in New Zealand have had limited opportunity…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading A v Attorney-General
Sign in free to access the full text
Details
AGLC
A v Attorney-General [2020] NZHC 3401
Case
[2020] NZHC 3401
Decision Date
CaseChat Overview and Summary
A, a prisoner, brought an action against the Attorney-General seeking damages for personal injuries sustained in three separate assaults by other prisoners at Whanganui Prison between January and June 2017. A claimed the Department of Corrections breached its duty of care to protect him from harm by other prisoners, breached his rights under sections 9 and 23(5) of the New Zealand Bill of Rights Act 1990, and sought both aggravated and exemplary damages for the negligence claim, and damages for the two BORA claims. The court considered whether Corrections owed a duty of care to A, whether Corrections breached that duty, whether the breach caused A's injuries, and whether exemplary damages were warranted. The court found that Corrections owed a duty of care to A to protect him from reasonably foreseeable assaults by other prisoners. However, the court found that Corrections did not breach its duty of care in relation to the first two assaults, but did breach the duty in relation to the third assault. The court found that the breach caused A's injuries, but that exemplary damages were not warranted. The court also found that A's rights under sections 9 and 23(5) of BORA were not breached. The court declined to award exemplary or aggravated damages in negligence, and found there was no breach of A's rights under sections 23(5) or 9 of BORA. The court ordered the identities of the parties suppressed for privacy and safety reasons.