D'Arcy-Smith v Chief Executive of the Ministry of Social Development
[2024] NZHC 1550
•13 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000712
[2024] NZHC 1550
UNDER the Privacy Act 2020 BETWEEN
GRAHAM WILLIAM D’ARCY-SMITH
Appellant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 1 May 2024 Counsel:
Appellant in person
S P R Conway and S J Edwards for Respondent
Judgment:
13 June 2024
JUDGMENT OF LA HOOD J
AND LAY MEMBERS DR MALAKAI KOLOAMATANGI AND MS BRONWEN KLIPPEL
Appeal against the Human Rights Review Tribunal’s dismissal of a Privacy Act claim
[1] Graham D’Arcy-Smith appeals against a decision by the Human Rights Review Tribunal (the Tribunal) dismissing his claim under the Privacy Act 2020.1
[2] The Tribunal found that the Ministry of Social Development (the Ministry) breached information privacy principle 8 (IPP 8) when it erroneously issued two automatic debt collection letters to Mr D’Arcy-Smith, despite having written off a debt he previously owed. However, the Tribunal concluded that the evidence did not
1 D’Arcy-Smith v The Chief Executive, Ministry of Social Development [2023] NZHRRT 26 [Tribunal decision].
D’ARCY-SMITH v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2024] NZHC 1550 [13 June 2024]
establish that the breach resulted in significant humiliation, significant loss of dignity, or significant injury to the feelings of Mr D’Arcy Smith to amount to an interference with his privacy under s 69 of the Act.
[3] The issues raised on appeal are whether the Tribunal erred in its approach to the threshold of significant harm under s 69(2)(b)(iii) of the Act and erred in finding that the threshold had not been established by Mr D’Arcy-Smith on the facts.
[4]For the reasons that follow, we conclude that:
(a)There was no error of law in the Tribunal’s approach to s 69(2)(b)(iii) as it was consistent with Canadian Supreme Court and New Zealand High Court authority.
(b)The Tribunal did not err in concluding Mr D’Arcy-Smith failed to establish his case. Moreover, our own assessment is that the evidence was insufficient to establish that the breach of IPP 8 resulted in Mr D’Arcy-Smith suffering significant humiliation, significant loss of dignity, or significant injury to the feelings.
Background events
The debt write-off
[5] On 4 October 2020, Mr D’Arcy-Smith sent a letter of complaint to Viv Rickard, the Deputy Chief Executive for Service Delivery at the Ministry. Mr D’Arcy-Smith’s letter disputed a debt the Ministry claimed he owed and sought $10,000 from the Ministry for stress, humiliation, loss of dignity and injury to feelings.
[6] On 9 October 2020, Mr Rickard wrote a letter to Mr D’Arcy-Smith advising that he would be independently looking into the issue and to contact Ms Allan, a principal advisor for the Deputy Chief Executive for Service Delivery, if he had any queries. Ms Allan requested a report from the Taupō service centre (responsible for Mr D’Arcy-Smith’s file) and ultimately decided to recommend that the debt be written
off. The Service Centre Manager signed off Ms Allan’s recommendation on 29 October 2020.
[7] On 9 November 2020, Ms Allan informed Mr D’Arcy-Smith that the Ministry was completing the paperwork to write off the debt. Mr D’Arcy-Smith replied on 9 December 2020 stating that if the case was not settled by the end of the year he would be filing proceedings on 6 January 2021 and increasing his claim to $25,000. Ms Allan replied, attaching a letter from Mr Rickard in response to Mr D’Arcy-Smith’s complaint. The letter stated:
I asked the service centre manager to review these and can now let you know that your debts totalling $4261.01 have been written off. I have also agreed to make an ex gratia payment of $1000.00 to you.
[8] Mr D’Arcy-Smith replied later that day, declining the offer. Ms Allan responded that the Ministry considered its response was fair and reasonable, and that as Mr D’Arcy-Smith had not accepted the offer, no payment would be made. She also informed Mr D’Arcy-Smith of his right to ask the Ombudsman to review his case.
The debt collection letters
[9] Although the debt was approved for write-off, two automatically generated debt collection letters were subsequently sent by the Ministry to Mr D’Arcy-Smith. Ms Allan gave evidence at the hearing that due to an oversight caused by human error, the paperwork for writing off Mr D’Arcy-Smith’s debt was completed and signed off, but the actions to cease recovery in the Client Management System were not completed. This resulted in the two debt collection letters being generated and sent.
[10] The first letter was dated 18 March 2021, and stated the Ministry was “getting in touch to make sure you know about the $4,263.01 you owe us”. The letter directed Mr D’Arcy-Smith to MyMSD, the online platform where he could view the details of the debt, and encouraged him to contact the Ministry for various support options. Mr D’Arcy-Smith viewed this letter via his MyMSD account online on 22 March 2021. The Ministry did not receive any response to this letter. On 1 April 2021, a follow-up letter was sent about the $4,263.01, again encouraging him to contact the
Ministry for support. Mr D’Arcy-Smith viewed this letter online on 6 April 2021 but did not contact the Ministry.
The Privacy complaint
[11] On 24 June 2021, the Office of the Privacy Commissioner informed the Ministry of a complaint made by Mr D’Arcy-Smith that the Ministry had breached IPP 8 of the Privacy Act by not checking the accuracy of his personal information before sending the two debt recovery letters.
[12] On 29 June 2021, Ms Allan emailed the Service Centre Manager, saying that it looked like the debt had not been written off in the system as Mr D’Arcy-Smith had received letters about it, and asked that a staff member write the debt off in the system. Later that day, the Integrated Services Case Manager emailed Ms Allan to confirm the total debts of $4,263.01 had been written off.
[13] Through its correspondence with the Office of the Privacy Commissioner, the Ministry indicated that it had apologised to Mr D’Arcy-Smith. In preparing for the Tribunal hearing the Ministry identified that this was incorrect. On 30 June 2022, Ms Allan sent Mr D’Arcy-Smith a letter from Mr Rickard apologising for the 18 March and 1 April 2021 letters as well as for the delay in providing a formal apology for the Ministry’s error.
[14] Mr D’Arcy-Smith asked the Ministry to remove the debt letters from his record. The Ministry explained that it was unable to do so due to its obligations under s 17 of the Public Records Act 2005,2 but offered to add a note to Mr D’Arcy-Smith’s file that the letters were incorrectly sent to him.3 Mr D’Arcy-Smith did not accept the Ministry’s offer and instead filed Tribunal proceedings.
2 Authority to dispose of those records is only held by the Chief Archivist: Public Records Act 2005, s 18.
3 The Ministry also advised Mr D’Arcy-Smith that he could add his own note to the file if he wished to do so. The Ministry would then send Mr D’Arcy-Smith a letter confirming his statement had been received, which would sit above the 18 March and 1 April 2021 letters to record what had occurred.
Legal framework under the Privacy Act
[15]IPP 8, set out in s 22 of the Privacy Act, provides:4
Information privacy principle 8
Accuracy, etc, of personal information to be checked before use or disclosure
An agency that holds personal information must not use or disclose that information without taking any steps that are, in the circumstances, reasonable to ensure that the information is accurate, up to date, complete, relevant, and not misleading.
[16] Under s 69(2)(b)(iii) of the Act, an agency interferes with the privacy of an individual if their action breaches an information privacy principle and the action “has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of the individual”. Under s 103, a claimant may receive damages for humiliation, loss of dignity, and injury to the feelings of the aggrieved individual arising from an interference with privacy.
The Tribunal’s decision
[17] The Tribunal considered Mr D’Arcy-Smith’s complaint at a hearing on 20 February 2023 and issued its decision on 1 September 2023. Mr D’Arcy-Smith’s claim was that the Ministry’s actions of sending the letters without checking that the debt was valid breached IPP 8 and that this caused him significant emotional harm. He sought $25,000 in damages.
[18]The Tribunal framed the issues for determination as:
(a)Did the Ministry breach IPP 8 by issuing and sending Mr D’Arcy-Smith the two debt recovery letters in error?
(b)If so, did that breach result in significant humiliation, significant loss of dignity, or significant injury to the feelings of Mr D’Arcy-Smith to amount to an interference with his privacy as defined in the Privacy Act?
4 Privacy Act 2020, s 22.
(c)If there was an interference with the privacy of Mr D’Arcy-Smith, what if any, is the appropriate remedy?
[19] The Tribunal found that the Ministry did breach IPP 8 by issuing and sending the debt-recovery letters. The Ministry could not rely on the accuracy of its automated systems in circumstances where it had already reviewed Mr D’Arcy-Smith’s debt and issued an apology letter and where Mr D’Arcy-Smith only remained on the system because of error in not updating the system following these steps.5 The Ministry should have taken reasonable steps such as checking the system had been updated accurately after it wrote off the debt.6
[20] However, the Tribunal –– while acknowledging that Mr D’Arcy-Smith did suffer frustration and stress –– did not consider that the receipt of the letters reached the threshold of “significant” humiliation, loss of dignity or injury to his feelings.7 The Tribunal observed that “significant” meant “important”, “notable”, or “considerable”,8 and that any emotional harm Mr D’Arcy-Smith claims to suffer must be causally connected to the Ministry’s breach.9 In reaching these conclusions, the Tribunal relied on several factual findings about Mr D’Arcy Smith:10
(a)that he had not been concerned that he would have to pay the money;
(b)that he was the only recipient of the letters so was not humiliated in front of others;
(c)that he could only have been feeling frustrated for the three months in which he waited between receiving the first letter and the matter being closed;
(d)that his stress symptoms were not so serious that he required medical treatment from his doctor at the time; and
5 Tribunal decision, above n 1, at [22].
6 At [23].
7 At [32] and [36].
8 At [28], citing Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004.
9 At [29], citing Taylor v Orcon Ltd [2015] NZHRRT 15, (2015) HRNZ 458 at [61].
10 At [33]–[35].
(e)there was no evidence in a letter provided by his doctor (upon him later seeking treatment from his doctor for stress) that he was suffering from significant stress.
[21] The Tribunal concluded that as Mr D’Arcy Smith failed to establish that the breach of IPP 8 by the Ministry in generating and sending the two debt recovery letters resulted in him suffering either significant humiliation, or significant loss of dignity or significant injury to feelings, the breach did not constitute an interference with his privacy under s 69 of the Act, and no remedy could be ordered.
Approach on appeal
[22] This is a general appeal under s 123 of the Human Rights Act 1993. The established principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.11 These include:12
(a)The appellant has the onus of persuading the appeal court that the decision under appeal was wrong. The appeal court must, however, arrive at its own assessment of the merits of the case and the extent of consideration given to the decision appealed from is a matter for the appeal court’s judgment.
(b)The Tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important) and in such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.
[23] Having regard to those principles, we note that the Tribunal heard oral evidence from Mr D’Arcy-Smith, which provided an opportunity to assess his evidence under cross-examination. The Tribunal also heard oral evidence from Ms Allan. We also
11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 as cited in Wall v Fairfax New Zealand Ltd [2018] NZHC 104, [2018] 2 NZLR 471 at [14]; Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC) at [8].
12 At [5].
note that the Tribunal is a specialist body that routinely deals with allegations of interference with privacy and is well placed to determine whether the circumstances of a particular case amount to such an interference.
Issues to be determined on appeal
[24]The appeal raises the following issues:
(a)Did the Tribunal err in its formulation of the test for “significant humiliation, significant loss of dignity, or significant injury to the feelings of the individual” in s 69(2)(b)(iii) of the Act?
(b)Was the Tribunal correct to conclude that the evidence of harm did not meet the s 69(2)(b)(iii) threshold?
The test in s 69(2)(b)(iii)
[25] Mr D’Arcy-Smith submits that the Tribunal erred in law in its approach to the requirements of s 69(2)(b)(iii). In Hammond v Credit Union Baywide,13 the Tribunal made the following observations about what is required under s 69(2)(b)(iii):
[152] As to loss of dignity, we refer to the description given in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 at [53] where Iacobucci J delivering the judgment of the Supreme Court of Canada stated:
53 … Human dignity means that an individual or group feels self- respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits … Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued ….
[153] As to what is included in “injury to the feelings”, it was held in Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004 at [36] that “injury to the feelings” can include conditions such as anxiety and stress. In Director of Proceedings v O’Neil [2001] NZAR 59 at [29] injury to feelings was described in the following terms:
[29] The feelings of human beings are not intangible things. They are real and felt, but often not identified until the person stands back and looks inwards. They can encompass pleasant feelings
13 Hammond v Credit Union Baywide [2015] NZHRRT 6, (2015) 10 HRNZ 66.
(such as contentment, happiness, peacefulness and tranquillity) or be unpleasant (such as fear, anger and anxiety). However a feeling can be described, it is clear that some feelings such as fear, grief, sense of loss, anxiety, anger, despair, alarm and so on can be categorised as injured feelings. They are feelings of a negative kind arising out of some outward event. To that extent they are injured feelings.
[154] Applying these observations we are satisfied on the balance of probabilities that there was significant humiliation, significant loss of dignity and significant injury to the feelings of Ms Hammond.
[26] Although we are not bound by the Tribunal’s observations, given their reliance upon Canadian Supreme Court and New Zealand High Court authority, we see no basis to depart from them. Human dignity is harmed by unfair treatment premised upon personal traits that do not relate to individual needs, capacities or merits, and is harmed when individuals and groups are marginalised, ignored, or devalued. Feelings such as grief, loss, anxiety, anger, despair, and alarm, can be categorised as injured feelings as they are feelings of a negative kind arising out of some outward event.
[27] However, crucially, s 69(2)(b)(iii) requires humiliation, loss of dignity, or injury to feelings to be “significant”. The Supreme Court has cautioned against adding a gloss to clear statutory language,14 and we do not consider that there is value in attempting to further define the word “significant” beyond the obvious synonyms that were used by the High Court in Winter v Jans.15 There, the Court said significant means the impact must have been “important”, “notable”, or “considerable”.16
[28] We note that Cull J, in determining an interlocutory application for a waiver of security for costs in this case,17 said that “whilst it may be a matter of misplaced language, s 69(2)(b)(iii) does not include the term “significant emotional harm”, which
14 See Burke v R [2024] NZSC 37 at [73], per O’Regan, Williams and Kós JJ, [181] per Winklemann CJ, and [249], per Glazebrook J; and Stiassny v Commissioner of Inland Revenue [2012] NZSC 106, [2013] 1 NZLR 453 at [23], per Blanchard J; See also, on the topic of “correcting” legislation, Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300 at [45], per Blanchard, Tipping, McGrath and Wilson JJ; Steele v Serepisos [2006] NZSC 67, [2007] 1 NZLR 1 at [22], per Blanchard J; and Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [56] and [95]–[96], per Tipping J.
15 Winter v Jans, above n 8, at [35].
16 At [28].
17 D’Arcy-Smith v Chief Executive of the Ministry of Social Development HC Wellington CIV-2023- 485-712, 20 December 2023 (Minute of Cull J following case management conference).
is the term the Tribunal used at [32] of its decision.”18 The relevant paragraph of the Tribunal’s decision reads:
[32] Mr D’Arcy-Smith’s evidence does not support a finding that the impact of receiving the letters resulted in him suffering significant emotional harm as is by required s 69 (2)(b)(iii). Even assuming the frustration and stress he suffered was caused by receiving the inaccurate letters it does not meet the necessary threshold of being significant frustration or significant stress.
[29] It appears the Tribunal has used the term “significant emotional harm” rather than “significant injury to feelings”, but we see no material difference between “injury to feelings” and “emotional harm”, although we accept it is always preferable to use the statutory language. The Tribunal went on, in the same paragraph, to refer to the frustration and stress that Mr D’Arcy-Smith suffered, which are clearly matters captured by the concept of injury to feelings in s 69(2)(b)(iii).
[30] We therefore consider there was no error of law in the Tribunal’s approach to s 69(2)(b)(iii).
Did the evidence of harm meet the s 69(2)(b)(iii) threshold?
[31] Mr D’Arcy-Smith’s essential argument on appeal is that the Tribunal erred in its assessment that any humiliation, loss of dignity, and injury to feelings that he suffered was not “significant”. He alleged a number of errors of fact to support this argument, which we now address.
[32] Mr D’Arcy-Smith submits that the Tribunal’s decision was wrong because the physical symptoms of stress caused by receipt of the letters were so severe that the Tribunal should have inferred that he suffered significant humiliation, loss of dignity, or injury to feelings. Mr D’Arcy-Smith particularly emphasised the vomiting and diarrhoea he suffered.19
18 At [13].
19 To the extent Mr D’Arcy-Smith’s submissions on appeal provided more detail about those symptoms than provided to the Tribunal, we explained to him at the hearing that the evidence he gave before the Tribunal is the evidence that the Court must consider.
[33] Whatever the extent of Mr D’Arcy-Smith’s physical symptoms of stress, as the Tribunal found, it is clear they were not severe enough to require medical treatment at the time he received the debt letters or in the subsequent 11 months.
[34] Mr D’Arcy-Smith’s evidence in the Tribunal included that at some stage between early 2020 and the Tribunal hearing in 2023 he had mentioned “in passing” his physical symptoms to his general practitioner (GP) when serving him as a customer at the bottle store where he works. His GP recommended over the counter medication, which he then obtained in consultation with his local pharmacist. Mr D’Arcy-Smith said in evidence that he continues to use those medications, but the symptoms are not as severe as in the period from March to June 2021.20
[35] There was further evidence about the timing of Mr D’Arcy-Smith’s discussions with his doctor in a letter from Mr D’Arcy-Smith’s doctor dated 23 January 2023, which reads in full as follows:
I've been D'Arcy's Gp [sic] for 5 years
I am writing to confirm that, in my medical opinion as a practising GP of 11 years experience, he has experienced physical symptoms relating to stress. He brought this to my attention in February 2022 and reports that the symptoms began in early 2020 as result of conflict with a government agency (Work and Income). The symptoms continue to the present.
[36] Mr D’Arcy-Smith also said in evidence that he saw his GP “probably 8-10 maybe more” times in a professional setting between 18 March 2021 and February 2022.
[37] The GP’s letter provided clear evidence for the Tribunal’s finding that the stress-related symptoms were brought to the GP’s attention in February 2022.21 This, combined with the evidence about how many times he had consulted his GP, also provided clear evidence for the Tribunal’s findings that: the stress related symptoms were not serious enough to require medical treatment from his GP at the time he received the debt letters; and that he did not find it necessary to discuss any stress symptoms with his GP until some 11 months after receipt of the debt letters.22
20 Tribunal decision, above n 1, at [30.2].
21 At [31].
22 At [35].
[38] We also share the Tribunal’s concern that the GP’s letter is brief and does not provide details of the stress, or stress related symptoms, Mr D’Arcy-Smith suffers from, or evidence that he considers Mr D’Arcy-Smith suffers from significant stress.23 We therefore consider there was no error in the Tribunal’s assessment of the seriousness of Mr D’Arcy-Smith’s stress related symptoms having regard to the medical treatment he sought and its timing.
[39] The next alleged error is the Tribunal’s conclusion that Mr D’Arcy-Smith was not concerned about having to pay the money back, but rather whether the matter was “going to get sorted”, and “that he was not strong enough anymore to handle it on his own, so he asked for help [by complaining to the Privacy Commissioner]”.24
[40] We accept the respondent’s submission that the system generated letters seeking repayment of the debt, on 18 March and 1 April 2021, were obviously generic letters compared to the personal letter Mr D’Arcy-Smith had received on 9 December 2020 from the Deputy Chief Executive. The 9 December 2020 letter acknowledged that Mr D’Arcy-Smith’s service experience had been inconsistent and confirmed that, following review, the debt would be written off. It also contained an apology and an offer of an ex gratia payment of $1,000 to acknowledge he could have received better service.25
[41] When Mr D’Arcy-Smith was asked in cross-examination about his concerns following receipt of the debt letters, he did not mention concerns about his financial position or employment. He said:26
Q.And your concern, when you were talking about the debt with Ms Warburton, was that you had tried to fix this and it hadn’t been fixed and you were worried about whether it would be fixed?
A. As I said to Sarah at the time, Ms Warburton, my concern was I had already been to the top and nothing had happened. I had previously had lots of emails from the department saying yes it would be written off, blah, blah, blah, blah, so then when these letters came out after Mr Rickard and Ms Allan said that it had been written off and then
23 At [35].
24 At [33].
25 At [4].
26 Transcript evidence at 68, lines 14-32.
they came, I went I’m not big enough, I’m not strong enough to do this anymore, I need help.
Q.And so your big concern when you’re talking with Ms Warburton and when these physical symptoms that you’ve described came on for you, your big concern there was is this going to get sorted or am I going to have to pay this money?
A.No my big concern was, number one, these letters had been sent and had breached my privacy based on the fact that the information wasn’t up-to-date and correct, number two, my concern was I’m not strong enough anymore to be able to do this, this is affecting my health. I can either put my head in the sand and try to ignore it or I can ask for help and I asked for help via the Ombudsman who had sent it to the Privacy Commission. I just didn’t feel anymore that I was strong enough to handle it on my own.
[42] This evidence, together with the obviously generic nature of the debt letters compared with the personal 9 December letter, provided an ample basis for the Tribunal’s finding that Mr D’Arcy Smith’s concern was not that he would have to pay the money back.27
[43]That finding of the Tribunal led to the following finding:28
Further, he was the only recipient of the letters. In this context, where Mr D’Arcy-Smith knew immediately that the debt information was inaccurate and he did not have to pay it, and where the receipt of the letters did not involve him being humiliated in front of others it is difficult to equate Mr D’Arcy-Smith’s frustration and stress with significant humiliation, significant loss of dignity or significant injury to feelings.
[44] We are not persuaded there is any error in these findings and they match our own assessment of the evidence.
[45] Mr D’Arcy-Smith submits on appeal that he also had a concern about the possibility of his employer being contacted to help recover the debt, as had occurred in respect of a previous debt (and as mentioned as a possibility in the 1 April 2021 letter). However, he did not mention this in his evidence in the Tribunal when asked about his concerns. It is also difficult to reconcile such a concern with his decision not to contact the Ministry following receipt of the letters. Once the Ministry was contacted about the error by the Privacy Commissioner on 24 June 2024, Mr D’Arcy-
27 Tribunal decision, above n 1, at [33].
28 At [33].
Smith was notified that it had been corrected within a few days. In any event, no contact was made with his employer on this occasion.
[46] As the Tribunal noted, the debt letters were not provided to any third party. They were only visible to Mr D’Arcy-Smith on his MyMSD internet portal. We also accept the respondent’s submission that the language of the debt letters was moderate in tone, invited discussion, and encouraged Mr D’Arcy-Smith to contact the Ministry.
[47] Mr D’Arcy-Smith also takes issue with the Tribunal’s finding that his “frustration” was short-lived, as the matter was resolved three months after he received the first letter.29 Mr D’Arcy-Smith submits that his stress symptoms lasted longer than three months so the finding cannot be correct. However, the Tribunal’s finding at this point was about the frustration caused by the Ministry continuing to seek payment of the debt not about any ongoing stress symptoms. Clearly, that frustration cannot have lasted past the point where the error was corrected.
[48] For these reasons, we are not persuaded that the Tribunal erred in concluding Mr D’Arcy-Smith failed to establish his case. Moreover, for the same reasons, our own assessment is that the evidence was insufficient to establish that the breach of IPP 8 resulted in Mr D’Arcy-Smith suffering significant humiliation, significant loss of dignity, or significant injury to the feelings.
Other issues not required to be determined
[49] Given the findings already made, we do not need to address the respondent’s alternative argument that Mr D’Arcy-Smith has not established a causal connection between the breach and the harm given his pre-existing stress symptoms.30 Nor do we need to address the issue of whether Mr D’Arcy-Smith’s conduct, in failing to contact the Ministry to correct the error, might impact on the assessment of whether there has
29 At [34].
30 See Taylor v Orcon Ltd, above n 9, at [60]–[61].
been an interference with privacy under s 69 and/or the assessment of the appropriate remedy under s 103.31
Conclusion
[50]The appeal is therefore dismissed.
For the Court: La Hood J
Solicitors:
Crown Law Office, Wellington for Respondent
31 The Tribunal in Taylor v Orcon Ltd, above n 9, at [72] briefly considered whether there was any conduct that may affect the discretionary grant of a remedy under s 103 of the Privacy Act 2020. However, that approach may not preclude a failure to take reasonable steps to mitigate harm being relevant to an assessment of the significance of the harm under s 69 of the Act.
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