BRAD BOWERS AND ATTORNEY-GENERAL AND CHRISTCHURCH MENS PRISON, PRISON DIRECTOR
[2024] NZHC 2988
•14 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-159
[2024] NZHC 2988
BETWEEN BRAD BOWERS
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
AND
CHRISTCHURCH MENS PRISON, PRISON DIRECTOR
Second Defendant
Hearing: 7 October 2024 Appearances:
Applicant in person
A Bloomfield and O Kiel for Defendants
Judgment:
14 October 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 31 May 2022 Brad Bowers was a serving prisoner in Christchurch Men’s Prison (CMP). He was a voluntarily segregated prisoner in Kauri Wing. Matai Wing housed mainstream prisoners and was separated from Kauri Wing by a set of exercise yards.
[2] On the afternoon of 31 May 2022, Mr Bowers and other segregated prisoners were exercising in the Kauri South yard. Mainstream prisoners were exercising in the adjacent Matai exercise yards. There is no direct access between the Kauri and Matai yards but corridors run along both the north and south walls of both yards and there are locked entrance gates off those corridors that provide access to the yards.
BOWERS v ATTORNEY-GENERAL [2024] NZHC 2988 [14 October 2024]
[3] The statement of claim alleges that at approximately 1425 hours, two Corrections Officers and a party of mainstream prisoners were in the corridor outside the Kauri south exercise yard gate and that the officers and prisoners became threatening towards the prisoners who were in the Kauri exercise yard. It further alleges that one of the Corrections Officers threatened to open the gate and let the mainstream prisoners into the yard to sort out the prisoners who were in there.
[4] Mr Bowers says that this exacerbated his PTSD and caused him avoidable stress. He says names he was called took away his dignity.
The claim
[5] On 24 April 2023, Mr Bowers filed a statement of claim alleging that the defendants had breached ss 14(1)(a) and 84(1) of the Corrections Act 2004, reg 151 of the Corrections Regulations 2005, and s 23(5) of New Zealand Bill of Rights Act 1990. The breach was said to have arisen by the purported failures of the Department of Corrections on 31 May 2022 to prevent Corrections Officers and prisoners from intimidating and threatening the segregated prisoners.
[6] Both the Attorney-General and the Prison Director of CMP are listed as defendants. Mr Bowers seeks:
(a)A written apology from the Director of CMP for ongoing trauma the incident is said to have caused him.
(b)The removal from service of the Corrections Officers involved in this incident.
(c)The distribution of an official memorandum to all employees of the Department of Corrections reminding them of the importance and requirement of gaining permission from Master Control to engage movements around a Corrections Facility to ensure the safety of prisoners and staff.
(d)Reparation in the sum of $55,870 for the ongoing psychological trauma said to have been caused by the actions of the Officers in question.
[7] It is not clear whether the ‘reparation’ is sought against the first or second defendants, or both.
What is agreed
[8] There was no challenge to the evidence of Mr Bowers that a prisoner in the Kauri yard decided to fill old milk cartons from the rubbish with water and threw these over the Officer’s sentry walkway onto the cage roof of the Matai Unit yards spilling water onto the mainstream security classified prisoners below. Although a sentry officer told this prisoner to “pull his head in” and stop behaving like a child, the prisoner threw a couple more containers over and tried unsuccessfully to throw a drain cover at the Officer’s window.
[9] There was also no challenge to Mr Bower’s assertion that two Corrections Officers, whose identity Mr Bowers did not know, and a group of about eight or nine Matai prisoners were in the passageway outside the gate to the Kauri south exercise yard and that those prisoners were hyped up and shouting abuse at the segregated prisoners.
[10]It is also agreed that:
(a)Mr Bowers suffers from long-term post-traumatic stress disorder (PTSD) and this was known to the prison authorities.
(b)On 1 June 2022, Mr Bowers filed a PC.01 complaint about the incident that he says took place in the recreation yards between Kauri and Matai units on 31 May 2022.
(c)On 28 June 2022, Mr Bowers was transferred to Rolleston Prison.
(d)On 29 June 2022, the PC.01 complaint was updated to record that Mr Bowers did not wish to take the matter any further due to now being at Rolleston Prison.
Issues to be determined
[11] It is necessary to determine whether, on the balance of probabilities, Mr Bowers has established:
(a)that a Correction Officer or Corrections Officers made intimidating comments about letting the mainstream prisoners into the exercise yard with the segregated prisoners and engaged in threats against the segregated prisoners;
(b)that the Corrections Officers gave prisoners permission to exercise disciplinary powers;
(c)that Corrections Officers escorted mainstream prisoners past the access gate to Kauri yard, without obtaining the necessary permission to do so; and
(d)that the incident exacerbated Mr Bowers’ PTSD symptoms with the consequences claimed by him.
Evidence
[12] I now need to consider the evidence as it relates to the issues to be determined. I start by noting that the burden of proof in civil proceedings seeking to establish a breach of the New Zealand Bill of Rights Act (NZBORA) rests on the plaintiff, with the standard of proof being proof on the balance of probabilities.1 Any loss said to have been caused by the wrongful action also needs to be properly established by evidence.
1 Taunoa v Attorney [2007] NZSC 70, [2008] 1 NZLR 429 at [182] per Blanchard J.
Mr Bower’s evidence
[13] Mr Bower’s evidence was that the incident exacerbated his PTSD symptoms causing flashbacks and nightmares, and that after the incident he never returned to the exercise yards at Kauri due to feeling unsafe and targeted and “was scared that if this was to happen again the gate might actually get unlocked”. He says this meant he no longer had access to the outside for fresh air and only spent time inside the unit.
[14] When he returned to the Kauri Unit for end of day lock up, he asked an officer for a PC.01 complaint form, which he received at final lockup and submitted the following morning.
[15] On 1 June 2022, he viewed the CCTV footage of the incident with the PCO and was advised to also submit an IR.07 staff complaint form. His transfer to Rolleston Prison in mid-June 2022 was to “remove [him] from any potential safety issues the incident or complaint may arise”.
[16] The Kowhai Unit PCO at Rolleston Prison told him that because he had raised the incident in both a PC.01 form and IR.07, he no longer needed to proceed with the PC.01 form. However, he wished for the IR.07 to continue. Mr Bowers states on numerous occasions over the next couple months he asked the PCO about the IR.07 progress, who told him that they take a long time to get addressed. He says in early 2023 he enquired again about the IR.07 in respect of which nothing had been done.
Defendants’ evidence
[17]Ms McFaul, Ms Garriock and Mr Perry all gave evidence for the defendants.
Ms McFaul
[18] Ms McFaul, Senior Advisor to the General Manager of CMP, stated that despite efforts to locate it, no IR.07 forms relating to Mr Bowers have been found. This included searching physical files and the Integrated Offender Management System (IOMS), with no records in Mr Bowers’ offender notes of him talking about the incident, asking for follow-ups, or putting in information requests about the issues
mentioned in his complaint form. Ms McFaul stated this is despite numerous entries in his offender notes by his case officer during this period.
[19] Ms McFaul also said that in addition to the PC.01 complaint, Mr Bowers made five other complaints between 31 May 2022 and his release from Rolleston Prison on 10 May 2023, none of which referred to the alleged incident. The incident was also not mentioned in any of the 33 complaints made by Kauri and Matai Unit prisoners between 31 May 2022 and 10 June 2022. Ms McFaul stated that Mr Bowers made 14 information requests between 31 May 2022 and 10 May 2023, none of which asked to see CCTV footage. She also said there is no footage of the alleged incident on the hard drive, which is standard practice when a prisoner requests to view footage, and requests that it be saved, or when the footage is considered evidence of an incident. Since footage that is not downloaded is automatically written over after about 28 days, Ms McFaul stated the footage from 31 May 2022 can no longer be retrieved.
[20] In respect of Mr Bowers’ transfer, Ms McFaul reported that the transfer form shows the reason for his transfer was ‘population management’, with the comments accompanying the request showing it was requested to assist with population pressure at CMP. Ms McFaul stated the transfer request aligns with her understanding that the majority of the beds for prisoners who are voluntarily segregated with Low-Medium and below Security Classifications are at Rolleston Prison.
[21] Ms McFaul noted that Mr Bowers has not identified the Corrections Officers or Sentry Officer he claims were present when the alleged incident occurred, and reported that, of the five staff members on shift in Matai at the time of the incident and who still work for Corrections, none of them have any recollection of an incident like the one Mr Bowers describes.
Mr Perry
[22] In his role as a Residential Manager (RM) at CMP Mr Perry was the RM responsible for managing the Kauri and Matai units at the time of the alleged incident.
[23] In his evidence, Mr Perry described the complaints process as at May 2022, stating the prisoner would fill out section A of the PC.01 complaint form and give it
to a staff member, who would log the complaint in the IOMS, give the prisoner a receipt and job number, and put the form into the relevant PCO’s in tray. The PCO of the unit would then interview the prisoner about their complaint within three working days, and if the complaint concerned staff misconduct, the PCO must immediately refer the complaint to the RM, who would interview the prisoner within 24 hours.
[24] Mr Perry stated complaints against staff are stored on a database known as IR.07 – Allegations Against Staff. If a prisoner decides they do not want to pursue their complaint, then the matter is considered to have been resolved internally. If they are unhappy with how their complaint is progressing, they can lodge a new complaint, or contact the Ombudsman or Inspectorate using the free phones in the units.
[25] In respect of Mr Bowers’ complaint form, Mr Perry stated that part B of the form contains statements that are not true, as the PCO who filled out the form never informed Mr Perry of the complaint, nor gave a paper based IR.07 to enter as required by procedure. He stated the PCO in the Kauri Unit at the time did not always meet the prescribed timeframes in dealing with prisoner complaints, which was an ongoing concern. Mr Perry reports the PCO that filled out the complaints form was subsequently dismissed after an employment investigation into other issues not related to the case. Mr Perry confirmed there is no record of anybody having lodged at IR.07 allegation against staff.
[26] Mr Perry stated Mr Bowers is incorrect in claiming that the gate to Kauri south is out of bounds for mainstream prisoners, as sometimes all exercise yards were required to be used to allow minimum recreation entitlements for all “landings” or sub-groupings of prisoners. He said the Kauri and Matai yards were used for any of the prisoners in those units, as the units both faced the yards and there were so many prisoners (at the relevant time 76 in each unit). He stated that “any yard that was free was fair game” and the Kauri yards were often used for prisoners from the Matai unit because they were bigger than the Matai yards. Mr Perry also stated Officers had free access to take prisoners through internal corridors, including the corridors to access the Kauri and Matai yards, and that they did not need special permission to do this. The Officers only needed permission from Master Control if they were taking prisoners outside their own units.
[27] Mr Perry stated that he would not expect a Corrections Officer to say what Mr Bowers claims was said, as this would be totally unprofessional and would lead to them being reprimanded, with it being a disciplinary matter for them and a safety issue for the other staff member. Additionally, if they opened the gates to the yards to let mainstream prisoners into the same yard as voluntarily segregated prisoners, they could lose their job and possibly face criminal charges. Mr Perry states “it just wouldn’t happen” and that Officers take prisoner safety very seriously.
Ms Garriock
[28] Ms Garriock, the Assistant Health Centre Manager at CMP, confirmed that Mr Bowers has a long-term post-traumatic stress disorder condition. However, she said his treatment did not change after the alleged incident, with no documentation in the recording system (Medtech) of the incident, nor evidence of any symptoms arising from the incident, or reference to the incident in Mr Bowers’ health records.
[29] She stated that if he had mentioned distress about the incident to Health Services staff or felt the incident had exacerbated his symptoms or made him feel unsafe and targeted, she would expect that to be recorded in his medical notes. Ms Garriock said that Mr Bowers usually spoke freely with Health Services staff if he had any mental health or physical health concerns.
[30] Ms Garriock also stated she was not aware of any record of Mr Bowers not using the exercise yards following the incident, and notes there is no record of Mr Bowers being referred to Health Services staff for an assessment, which Custodial Services sometimes does if a prisoner is refusing minimum entitlements for a period of time.
Findings of fact
The incident
[31] Mr Bowers made a number of assertions about breach of procedures by the officers which were not accepted by the defendants’ witnesses.
[32] Mr Bowers asserted that the Matai prisoners and Corrections Officers should not have been in the corridor outside the Kauri south entrance gate and that this area was ‘out of bounds’ to them. Under cross-examination Mr Bowers accepted that Matai prisoners had, on occasion, used the Kauri exercise yards but said that was only when Kauri prisoners were using the Rawhiti yards. The Rawhiti Wing and associated yards were on the other side of the Kauri Wing.
[33] Mr Perry was not challenged on his evidence that the exercise yards between the Matai and Kauri units could be used for prisoners from both units or that the gate to Kauri south yard was not ‘out of bounds’ for mainstream prisoners. His evidence was that at times, all of the exercise yards in his area were used to provide minimum recreation entitlements for all prisoners. I accept Mr Perry’s evidence on these points.
[34] Mr Bowers claimed that Corrections Officers needed the permission of Master Control to take prisoners along the corridor outside Kauri south yard and he asserted that they had not obtained such permission in this case. Mr Perry’s evidence was that permission from Master Control was not required in these circumstances although what would commonly happen would be that a Corrections Officer moving prisoners from one area to another would let Master Control know what was happening.
[35] Mr Bowers’ evidence was that he was standing, with the other segregated prisoners, in the centre of Kauri south yard and that they were looking at a drain from which one of their number had removed the drain cover. His evidence also was that the prisoners in the corridor were making a lot of noise. In these circumstances it is unlikely that he would have been able to clearly hear any communication between the Corrections Officer and Master Control. Indeed, it seems that Mr Bowers’ evidence was not based on anything he actually heard on this occasion but on what he said had been the practice on other occasions. I accept Mr Perry’s evidence that no such permission would have been required and that there is no basis for suggesting that any rule or regulation was broken in this regard.
[36] These findings resolve the issue of whether the Corrections Officers acted lawfully in escorting mainstream prisoners along the corridor past the gate to Kauri south exercise yard.
[37] As to what actually happened outside the gate to Kauri south yard, there was one detail about the alleged incident that was not in either the statement of claim or the prepared brief of evidence that Mr Bowers filed, but was introduced for the first time in his opening submissions and repeated in his oral evidence in chief. This was a claim that one of the Corrections Officers inserted a key into the lock on the gate to Kauri south yard, leaving it there for some time while threatening to open the gate and let the mainstream prisoners into the yard.
[38] This was a significant piece of evidence, and the fact that it had not been mentioned by Mr Bowers at any earlier stage, detracts significantly from its credibility. Because Mr Bowers had not been able to identify either of the Corrections Officers said to have been involved and none of the Corrections Officers on duty that day had any knowledge of an incident of the nature described by Mr Bowers, the defendants had no ability to call rebuttal evidence. However, Mr Perry was able to make some relevant observations as to why the account given by Mr Bowers of this aspect of the incident was improbable.
[39] He pointed out that the gate to the Kauri south yard was covered by a mesh grill. He described the view to be obtained by looking through the mesh as being similar to trying to look through a fly swat. His evidence was even if someone was close to the grill, the view was indistinct and the further away one got the more indistinct it became. Mr Bowers accepted that he was some distance from the grill, standing in the middle of the yard.
[40] A photograph of the mesh grill was produced as an exhibit. It confirmed Mr Perry’s evidence. It also showed the lock as being part of a large solid area and it would have been impossible for someone in the centre of the yard to have seen whether there was a key in the other side of the lock or not. It would have been very difficult if not impossible for Mr Bowers to have clearly seen anything in the corridor when looking towards the gate from the middle of the yard.
[41] Given the noise the mainstream prisoners were making it seems improbable that he would have been able to hear who was saying what.
[42] I accept that it is likely that there were comments from those in the corridor about the segregated inmates in the Kauri yard and the disdain in which particular categories of sex offenders (of which Mr Bowers happened to be one) were held by the mainstream prison population. However as Mr Bowers acknowledged, that was not unusual. He also specifically accepted that there were no comments addressed to him personally.
[43] Mr Perry gave a number of reasons why the allegations that Mr Bowers made about one of the Corrections Officers were unlikely. He pointed out that had the Corrections Officer said or done what Mr Bowers reported, that would have amounted to serious misconduct putting the Officer’s continued employment in jeopardy. Agitating a group of prisoners who were in the same confined space as the Officers put the safety of both Corrections Officers at risk as well. He would have expected the other Corrections Officer to have been so concerned had such behaviour taken place, to have reported it. He would have also expected that other segregated prisoners in the yard would have lodged complaints about it and noted that none did. I accept that the combination of these factors makes it unlikely that the Corrections Officers did or said what Mr Bowers claims. That finding resolves the issue of whether Mr Bowers has proved, on the balance of probabilities that Corrections Officers made intimidating comments/undertook intimidating actions.
[44] These findings also determine the claims that the Corrections Officers gave prisoners authority to exercise disciplinary powers. This claim was not developed by Mr Bowers in his submissions but seems to have been advanced on the basis that the Corrections Officers were using the abuse directed by the mainstream prisoners at those who were in Kauri south yard as some form of punishment presumably directed at the prisoner who had thrown water on the mesh roof of the Matai exercise yards.
[45] It is unsurprising that the mainstream prisoners were hyped up at the time, if they had come from the exercise yard that had had water thrown over it, and would have likely shouted insults at those in Kauri south yard. Mr Bowers, during
cross-examination, accepted that segregated prisoners having insults and threats shouted at them by mainstream prisoners was a normal part of the prison environment.
[46] A clear procedure existed to discipline a prisoner who had misbehaved. Mr Perry explained that in his evidence. There would have been no need for the Corrections Officers in this case to enlist the assistance of other prisoners in this exercise. There is no evidence in this case that the Corrections Officers sought to use prisoners to impose discipline on anyone. I also find it improbable that a Corrections Officer would have done something which would have put their job at risk and expose them to possible criminal charges for engaging in the behaviour contended for by Mr Bowers. I find that the facts do not support Mr Bowers’ claim that prisoners were used to discipline anyone.
Subsequent events
[47] I turn now to address the facts relevant to Mr Bowers claims about the effects that the incident had on him where are the basis for his claim for damages.
[48] On 1 June 2022 Mr Bowers lodged a complaint. Mr Bowers’ said that on 1 June 2022, he viewed CCTV footage of the incident with the Principal Corrections Officer (PCO) for the Kauri Unit after making his complaint. The evidence of Mr Perry and Ms McFaul was that this could not have occurred because, before footage could have been viewed, it would have had to have been downloaded and a record of the download would exist and could not have been deleted by the PCO.
[49] On 7 June 2022, the Kauri PCO updated the record of the complaint to say he was reviewing CCTV footage of the incident and had referred the matter to the residential manager (RM) and that the complaint would now follow the IR.07 process for allegations against staff, with Mr Bowers invited to submit his complaint in writing. However, witnesses for Corrections were clear that the PCO had falsely made these comments and the complaint was not in fact referred to the RM, with no IR.07 complaint ever lodged, and no footage of the alleged incident saved or viewed.
[50] Under cross-examination by Mr Bowers, Mr Perry confirmed that in order to be viewed by anyone, the video footage would have to have been downloaded and that
a Corrections Officer could not save video footage themselves. A senior staff member in the Security Unit would receive a request for the footage to be saved and would attend to that. That person would also make a record that it had been saved and control what happened to it. In this case, there was no record of any request from anyone for the footage to be saved or any record of it ever having been downloaded. Mr Bowers did not challenge Mr Perry on this aspect of his evidence and I accept it.
[51] On 28 June 2022, Mr Bowers was transferred to Rolleston Prison, and either on that day or the following day, a PCO from Mr Bowers’ new unit at the prison contacted Mr Perry and asked about Mr Bowers’ complaint. Mr Perry said he had not interviewed Mr Bowers and knew nothing of his complaint or the alleged incident.
[52] On 29 June 2022, Mr Bowers told prison staff that he did not wish to take the matter any further now that he was at Rolleston Prison. As a result, Corrections closed the complaint and took no further steps until Mr Bowers filed this claim, almost a year later, in April 2023.
[53] There was no dispute that the Corrections Officer who had made the false entry and who had wrongly led Mr Bowers to believe that an IR.07 investigation had been commenced was subsequently dismissed for unrelated wrongdoing.
[54] Although Mr Bowers is not in anyway responsible for the inaction and misrepresentations of the Corrections Officer concerned, those actions have disadvantaged him in that an opportunity was lost for CMP to promptly talk to those alleged to have been involved either as witnesses or in relation to the downloading of any video evidence. Mr Bowers is entitled to feel aggrieved at the behaviour of the PCO who took his IR.07 statement and then did not further action it. However, ultimately that officer’s conduct is not determinative of any issue I have to decide. The defendants do not challenge Mr Bowers evidence that he filled out an IR.07 form and expected that it was being acted on.
[55] Mr Bowers understanding that an IR.07 investigation was required would also explain his withdrawal of the PC.01 form and why, when Mr Perry was informed of this, he erroneously assumed the matter was at an end. I am satisfied that Mr Bowers
never intended to and did not withdraw the IR.07 claim which he was entitled to think was being dealt with.
[56] What the defendants do challenge is Mr Bowers’ claims as to the effect that the incident had upon him.
[57] Mr Bowers claim that he did not use the exercise yards at CMP after the incident is not supported by any other evidence. Mr Perry’s evidence, which was consistent with that of Ms Garriock, was that when a prisoner repeatedly declined to use their minimum entitlements such as yard access, that would be recorded in their files and there was no such entry in Mr Bowers’ files. I also note that Mr Bowers only remained in CMP for approximately three weeks after the incident so any unwillingness to use the Kauri exercise yards was of limited duration.
[58] Ms Garriock confirmed that PTSD was noted as a long term condition for Mr Bowers from as early as 2 March 2020 and that the treatment for that conditions did not change after the incident. Her evidence was that, in spite of Mr Bowers speaking freely with Health Services staff if he had any mental health or physical health concerns, there was no record of him having raised anything to do with this incident, neither was there any record of any symptoms arising from the incident. There was a record of him having received counselling and physiotherapy between 31 May 2022 and 10 May 2023, but this was in respect of an entirely different issue.
[59] Mr Bowers did not call any medical evidence to support his claim of a causative link between the incident and a deterioration in his PTSD. That would normally be required in a case such as this. The evidence that he never raised the issue with Health Services staff or sought any treatment or counselling for it, undermines his claims of the seriousness of the effects that he claims to have suffered. On the balance of probabilities, he has not established the causative link between the incident and the claimed health consequences. So, even had he established the facts he asserted in respect of the incident itself, he would not have been entitled to the damages claimed.
The Law
[60] In addition to not succeeding on the facts, Mr Bowers case also faces insurmountable legal obstacles, not the least of which is that this Court has no jurisdiction to grant the first three claims for relief set out in [6] above. There are also legal difficulties with the damages claim.
[61]Section 14 of the Corrections Act 2004 provides that:
14 Powers and functions of officers
(1) An officer appointed or designated under section 11(1)(b), (2)(b), or (3)(b) to provide custodial services in respect of a prison has the following powers and functions:
(a)ensuring the safe custody and welfare of prisoners under his or her control:
(b)any other powers and functions conferred under this Act or regulations made this made Act.
(2) In the exercise of powers and functions referred to in subsection (1), an officer is subject to the directions of the prison manager.
[62]Section 84 of the Corrections Act specifies:
84 Provoking prisoners
(1)No officer or staff member may deliberately act or speak in a manner likely to provoke a prisoner.
(2)To avoid doubt, subsection (1) does not prevent an officer or staff member from issuing any unlawful order to a prisoner or providing any information to a prisoner or otherwise carrying out his or her duties.
[63] In addition to the Corrections Act, Mr Bower’s claim relies on the Corrections Regulations 2005. Regulation 151 provides that:
151 Prisoners not to exercise disciplinary powers
No prisoner may be permitted or required to exercise disciplinary powers over another prisoner.
[64]Mr Bower also relies on s 23(5) of NZBORA which provides that:
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
Submissions
Plaintiff ’s Submissions
[65] Mr Bowers contends that s 84(1) of the Corrections Act 2004 and reg 150 of the Corrections Regulations concerning maintenance of discipline were breached.
[66] He also refers to reg 151 of the Corrections Regulations 2005, which provides that no prisoner may be permitted or required to exercise disciplinary powers over another prisoner.
Defendants’ submissions
[67] Ms Bloomfield submits that whilst Mr Bowers relies on ss 14(1)(a) and 84(1) of the Corrections Act and reg 151 of the Corrections Regulations, the case law confirms that those provisions are not privately actionable in and of themselves.2 However, she raises the possibility that Mr Bowers is seeking to rely on a general common law duty to exercise reasonable care for the safety of prisoners, which has been found to include protecting prisoners from other prisoners.
[68] Ms Bloomfield submits that this common law duty only arises in circumstances where there is a conspicuous and specific risk to a particular prisoner and is not a safety guarantee but rather requires Corrections to take reasonable care for prisoners’ safety, including taking reasonable care to mitigate known or foreseeable risks.
[69] With respect to the claim under s 23(5) of NZBORA, Ms Bloomfield submits that s 23(5) is a serious matter and should not be found without proper evidence. She states the provision’s purpose is to capture conduct that lacks humanity, but falls short of being cruel, demeans the person, but not to an extent which is degrading, or which is clearly excessive in the circumstances, but not grossly so.
2 Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 35 at [46]–[50]; Harriman v Attorney-General [2015] NZHC 3197 at [37]–[39]; and O’Dowd v Attorney-General HC Christchurch CIV-2005-409-443, 15 November 2005 at [36].
[70] Ms Bloomfield submits s 23(5) incorporates a positive duty of humane treatment at the hands of the Crown as well as a positive duty to protect prisoners against reasonably foreseeable harm of other prisoners. To find a breach of any positive protective duty owed under s 23(5), she says there needs to be a clearer or more serious departure than is required to find a simple breach of the common law protective duty of care.
Analysis
Breaches of Corrections Act and Regulations
[71] As noted in Genge v Visting Justice, it is well recognised that a breach of duties set out in the Corrections Act does not give rise to a private law cause of action.3 Simon France J determined in Harriman that the strong focus on public safety in the Corrections Act tells against the idea the Act was intended to create private law causes of action, with the Act instead providing specific methods of redress such as the through the Corrections Department inspectors and the Ombudsman.4 In Genge, Dunningham J, after referring to Simon France J’s findings in Harriman, stated that:
[49] It logically follows, therefore, that regulations made under powers in the Act, and codes of conduct and other guideline documents adopted to assist in achievement of the Act’s purposes, also do not give rise to an enforceable claim for damages when they are breached…
[72] Therefore, it is clear that Mr Bowers does not have a private cause of action available to him under the Corrections Act and Regulations. However, although Mr Bowers did not articulate such a duty in the statement of claim, as Ms Bloomfield has acknowledged in her submissions, he may have a claim under the common law duty of care towards the safety of prisoners. I will address that issue.
[73] Such a duty was first recognised by Tompkins J in Morgan v Attorney-General in 1965, which concerned a workplace injury.5 More recently, Ellis J considered the common law duty relevant to a claim under s 23(5) of NZBORA in S v Attorney-General.6 She described the duty as including:
3 Genge v Visiting Justice, above n 2, at [46].
4 Harriman v Attorney-General, [2015] NZHC 3197 at [37]–[38].
5 Morgan v Attorney-General [1965] NZLR 134 (SC) at 137.
6 S v Attorney-General [2017] NZHC 2629 at [235].
…the avoidance of all acts or omissions which the person having custody could “reasonably foresee would be likely to harm the person for whom he is responsible”, including self-harm.
[74] Doogue J in A v Attorney-General, stated that it is well recognised that authorities face a difficult task in managing prison environments, with prisoners unable to be constantly segregated or supervised, and prisoner-on-prisoner assaults being very difficult to predict or prevent due to their sudden and often unprovoked nature.7 Because of this difficulty, the duty of care owed is not a guarantee of safety of prisoners, but rather a duty to take reasonable care for their safety.8 Generally, prison authorities are considered to have breached their duty where there are pre-indicators of violence that were known to prison officers/authorities but were not acted on, such as animosities amongst prisoners, or threats, aggressive behaviour, accusations, etc.9
[75] If the events occurred as alleged by Mr Bowers, then Corrections could be said to have breached their duty of care, on the basis that actively stoking anger and aggression in mainstream prisoners towards the voluntarily segregated prisoners, is a breach of the duty to take reasonable care. However, for the reasons discussed above I am not satisfied that Mr Bowers has, on the balance of probabilities, established the facts necessary to found such a claim. Mr Bowers has not established that the implied duty of care owed to him by Corrections was breached.
Section 23(5) of NZBORA
[76] Section 23(5) of NZBORA concerns conduct that is of a lesser degree than that covered by s 9 of NZBORA which relates to treatment that is cruel, degrading, disproportionately severe, or amounts to torture. Section 23(5) proscribes conduct which is unacceptable in our society, but is of a lesser order that does not rise to the level of “outrageous”.10 Examples of conduct that has been found to breach s 23(5) include:11
7 A v Attorney-General [2020] NZHC 3401 at [85].
8 A v Attorney-General, above n 7, at [96] citing New South Wales v Bujdoso [2005] HCA 76 at [51].
9 A v Attorney-General, above n 7, at [98].
10 Taunoa, above n 1 at [170].
11 Taunoa, above n 1.
(a)loss of ordinary inmate “entitlements” while on segregation;
(b)inadequate monitoring of inmate mental health; and
(c)inadequate exercise conditions.
[77]Remedies for breaches of s 23(5) can include compensation.12
[78] The main basis upon which Mr Bowers claims to have had his rights under s 23(5) breached is in Corrections Officers and mainstream prisoners referring to the group of prisoners in Kauri south yard as “paedophiles” and “kid fuckers”. Even though he accepted that no name calling was directed to him personally he states this took his dignity away.
[79] As discussed above, Mr Bowers has failed to establish on the balance of probabilities that the Corrections Officers used those terms. It is unrealistic to expect the prison authorities to be able to stop other prisoners from using this sort of language. There has been no breach of s 23(5).
Conclusion
[80]The plaintiff’s claims are dismissed.
Costs
[81] If the defendants seek costs, they are to file and serve a memorandum of no greater than three pages in length within 14 days of this decision, the plaintiff will have 14 days to file and serve a memorandum in reply of no greater than three pages in length. I will then deal with the matter on the papers.
Churchman J
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Defendants
12 At [273].
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