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Harris v Attorney-General (HC, 11/02/04)

Judgment Text

The judgment of the Court was delivered by 
NEAZOR J (reserved):
[1]
This is an application to review a decision of the Master. 
[2]
That decision related to leave to bring proceedings for damages against the intended defendants. The claims involve allegations of bodily injury and leave was sought because the intended action was not brought within 2 years of the date on which the cause of action occurred. Section 4(7) of the Limitation Act 1950 requires that such a claim be brought within that period; but it may be brought within 6 years with the consent of the intended defendant. In this case that consent was sought in December 2001 and refused on 13 February 2002. 
[3]
Section 4(7) provides that if the intended defendant does not consent, the Court may give leave within the 6 year period. The section allows the Court: 
“if it thinks just to do so, [to] grant leave accordingly, subject to such conditions (if any) as it thinks just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay. ”
[4]
The Master was satisfied that one of the conditions required by the section to be satisfied had been ie that the defendants were not materially prejudiced in their defence by the delay, but declined to grant leave to proceed on the grounds that it would not be just in the circumstances to do so. 
[5]
The intending plaintiff on his draft statement of claim (referred to hereafter as “the statement of claim”) related his three causes of action to the period when he was in prison between 11 November 1996 and 23 March 1998. His claims are directed to acts or omissions of those who had lawful custody of him during that period. 
[6]
An earlier history is set out in the statement of claim which might give rise to issues of causation if the action was to proceed. Beyond that, the history provides a background of information which is alleged to have a bearing on the performance of their legal responsibilities by those whose conduct is now impugned. In substance the case is based on complaints the intending plaintiff said he made to various people in official positions and what was or ought to have been observable about his physical condition. 
[7]
The statement of claim relates that in 1984 the intended plaintiff was assaulted by members of the police and that in 1996 he was assaulted by members of the police and prison officers at the Masterton Court House. It is alleged that as a consequence of the second assault he suffered jaw fractures, broken or missing teeth, a laceration in the canal of his left ear, partial dislocation of both shoulders and severe bruising to neck and chest and other injuries. As a result he received accident compensation for medical and dental treatment. 
[8]
The treatment included physiotherapy and chiropractic treatment for pain and problems with neck flexion, operations to repair and wire fractures of his jaw, dental treatment for damaged or broken teeth including the fitting of an upper denture, continuing treatment to his lower jaw, and with one tooth still to be removed and a lower denture fitted and treatment for pain. 
[9]
The intending plaintiff on 23 July 1999 obtained a judgment against the Attorney-General for $30,000 by way of exemplary damages plus $25,000 for costs in respect of the 1996 injuries. 
[10]
On 11 November 1996 the intended plaintiff was remanded in custody pending sentence, and on 16 December 1996 he commenced a sentence of 2 years imprisonment, being released on 23 March 1998. 
[11]
It is alleged that when he was first medically assessed in prison he advised that 
(a)
as a result of the assaults he was having difficulty eating and had a piece of tooth or bone embedded in his gum; 
(b)
as a consequence of the assaults he had only one lower tooth and a full upper denture and was to have had a lower denture fitted but that had not been done before he went into custody; 
(c)
as a consequence of the assaults he had constant pain in his neck which affected the mobility of his neck; 
(d)
he required the assistance of a chiropractor or physiotherapist and further dental treatment including a lower denture. 
[12]
The statement of claim alleges that despite complaints about his conditions, and his jaw becoming infected he did not receive any treatment before August 1997. Thereafter he was given a spinal x-ray and two chiropractic treatments but no more. He did not receive any dental treatment. After his release from prison in March 1998 the Accident Compensation Corporation funded more chiropractic treatment and dental treatment including the lower denture. 
[13]
The three causes of action pleaded are: 
(a)
That as a prison inmate he was owed a duty of care of care in respect of medical and dental advice and treatment; that there was negligence in respect of that duty causing pain and suffering and neurological difficulties; 
(b)
That the Penal Institutions Act 1954 requires the appointment of a medical officer for every institution and that the Penal Institution Regulations 1961 require the medical officer to do everything necessary to maintain the good health of inmates; that those statutory duties were not observed with consequent pain and suffering and neurological difficulties; 
(c)
That there had been a breach of the New Zealand Bill of Rights Act 1990 in that failure to offer the intended plaintiff adequate medical or dental treatment breached the rights guaranteed by ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 [not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment (s 9); to be treated with humanity and with report for the inherent dignity of the person (s 23(5)]. 
[14]
Under each cause of action $90,000 is claimed by way of exemplary damages. During the argument before the Master it was proposed that the third head of claim would be recast as alleging a breach of the intending plaintiff's rights in the circumstances and claiming “damages in the sum of $90,000 pursuant to the New Zealand Bill of Rights 1990”
[15]
The issues dealt with before the Master in respect of the first two causes of action and still in contention are whether the exercise of the discretion to grant leave was warranted in the circumstances; in respect of the third cause of action whether it, brought in respect of the alleged breaches of the Bill of Rights Act, required leave at all. In the alternative, it was argued that the discretion ought to be exercised in favour of granting leave in that case also. 
[16]
In respect of the Bill of Rights Act claim the Master held, following H v H [1997] 2 NZLR 700; (1997) 10 PRNZ 458Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , that s 4(7) was intended to have a wide ambit and to put in place a limitation in every case in which the proceedings relate in a broad way to bodily injury; that the essence of the intending plaintiff's case is so related; and that leave would have to be obtained before that cause of action could proceed. 
[17]
Central to the Master's decision in respect of the exercise of discretion were the prospects of the plaintiff's success, related particularly to the fact that the claim in each case (as originally pleaded) is for exemplary damages. Precedent for refusal of leave under s 4(7) even if the factual allegations should be made out, but exemplary damages would not be awarded, was found in Ellison v L [1998] 1 NZLR 416; (1997) 11 PRNZ 401 (CA)Has Litigation History which is not known to be negative[Blue]  and Harris v McIntosh [2001] 3 NZLR 721Has Litigation History which is not known to be negative[Blue] 
[18]
Reference was made to Bottrill v A [2003] 2 NZLR 721 (PC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  as establishing that the basic question in respect of exemplary damages is always whether the defendant's conduct is in a category properly described as outrageous wrongdoing. Reference was made to the requirement before exemplary damages are appropriate of “something extra which turns a case of grossly negligent conduct into conduct which is quite outrageous”, and to the comment that “the absence of intentional wrongdoing and conscious recklessness will always point strongly away from the case being apt for an award of exemplary damages.” 
[19]
The Master took the plaintiff's argument to be that his case was of the category, described in Bottrill v A [2003] 2 NZLR 721 (PC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  as “rare”, where exemplary damages may be awarded where the defendants' conduct was neither intentional nor consciously reckless. The reference to such rare cases in Bottrill was in the context of cases “where the defendant departed so far and so flagrantly from the dictates of ordinary or professional precepts of prudence and standards of care, that his conduct satisfies the test even though he was not consciously reckless.” 
[20]
The Master proceeded on the basis that the allegations that the plaintiff did not receive any dental treatment while he was in prison and received insufficient medical treatment for his neck injury would be made out, but was satisfied that exemplary damages would not be awarded: there was nothing in the allegations which would lead to the defendants' conduct being categorised as “quite outrageous”
[21]
The Master recorded the submission that the fact that the injuries for which the intending plaintiff required treatment were inflicted by servants of the Crown was relevant as was that as a prisoner the intending plaintiff could not leave the prison to get treatment for himself. Neither was thought to move the case into the category of quite outrageous conduct. I doubt that the first matter was even relevant because the intending plaintiff had already been awarded exemplary damages against the Crown in respect of it, and because the focus of his claim is on what was done or not done about his conditions from the time when he entered prison custody. The basis of his present claim would be no different if he had received the same injuries in a motor accident. 
[22]
Leave was refused because exemplary damages would be unobtainable on the present proceedings, and by implication, on counsel's submission, that there appeared to be no prospect of effective relief in respect of the Bill of Rights Act claim. 
The causes of action in negligence and for breach of statutory relief 
[23]
It is not in issue that: 
(a)
because of the Accident Compensation legislation the intending plaintiff cannot obtain damages for personal injury, including the consequences of the failure of a registered health professional to observe a standard of care and skill reasonably be expected in the circumstances, if he has cover under the Act currently in force; 
(b)
he can in appropriate circumstances recover exemplary damages in such a case — s 394 Accident Insurance Act 1998 and s 317 of the Injury Prevention, Rehabilitation and Compensation Act 2001; 
(c)
he received compensation under the appropriate Act for the physical consequences of the assault or assaults on him in 1996 and in respect of any continuation or exacerbation of those consequences whilst he was in prison, having received some treatment through the prison authorities and more at the expense of the Accident Compensation Corporation after his release; 
(d)
he has received exemplary damages in respect of the original injuries; 
(e)
he was not entitled to any compensation grant or allowance from the Corporation whilst he was in prison — s 83 Accident Rehabilitation and Compensation Insurance Act 1992; 
(f)
his allegations are of lack of treatment for pain or immobility and dental treatment after complaints to the medical officers of the prison (including failure to provide him with a denture when he did not have one at the time he was imprisoned). 
[24]
The decision in Bottrill v A [2003] 2 NZLR 721 (PC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  is emphatic that awards of exemplary damages will be, and ought to be, rare occurrences. Four passages show the strength of the decision: 
“In the ordinary course the appropriate response of a Court to the commission of a tort is to require the wrongdoer to make good the wronged person's loss, so far as a payment of money can achieve this. In appropriate circumstances this may include aggravated damages. Exceptionally, a defendant's conduct in committing a civil wrong is so outrageous that an order for payment of compensation is not an adequate response. Something more is needed from the Court, to demonstrate that such conduct is altogether unacceptable to society. Then the wrongdoer may be ordered to make a further payment, by way of condemnation and punishment. 
[23] The next point to note is that, in the nature of things, cases satisfying the test of outrageousness will usually involve intentional wrongdoing with, additionally, an element of flagrancy or cynicism or oppression or the like: something additional, rendering the wrongdoing or the manner or circumstances in which it was committed particularly appalling. It is these features which make the defendant's conduct outrageous. Either that or at the very least, in cases of negligence, the defendant was aware of the risks involved but he proceeded with a reckless indifference such that this conduct, too, evokes a sense of outrage. Such conscious recklessness approaches very closely to intentional wrongdoing. 
[26] However, if experience in the law teaches anything, it is that sooner or later the unexpected and exceptional event is bound to occur. It would be imprudent to assume that, in the absence of intentional wrongdoing or conscious recklessness, a defendant's negligent conduct will never give rise to a justifiable feeling of outrage calling for an award of exemplary damages. ‘Never say never’ is a sound judicial admonition. There may be the rare case where the defendant departed so far and so flagrantly from the dictates of ordinary or professional precepts of prudence, or standards of care, that his conduct satisfies this test even though he was not consciously reckless. 
[64] … Their Lordships cannot overemphasise what has already been indicated more than once. The cases where it is appropriate to make an award of exemplary damages are exceptional. The cases where it is appropriate to make an award of exemplary damages in the absence of intentional wrongdoing or conscious recklessness will be exceptional and rare indeed. It must always be kept in mind that compensation is not the purpose of exemplary damages. A perceived need for compensation, or further compensation, is not a proper basis for making an award of exemplary damages. ”
[25]
Mr Gibson placed reliance on the last part of para 26 cited above, submitting that if the intending plaintiff's allegations were upheld the failure or refusal adequately to treat a prisoner, who had no alternative source of treatment, might be held to amount to considerable departure from ordinary and professional standards of care; that that would be a matter of evidence and that the case should be allowed to go to trial. 
[26]
In light of the circumstances as known and the thrust of the judgment in Bottrill v A [2003] 2 NZLR 721 (PC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  (which related also to the area of medical assessment and treatment), in my view the judgment of the Master that these two causes of action are bound to fail is unassailable. So accordingly is his decision that leave to proceed should not be given in respect of them. 
New Zealand Bill of Rights cause of action 
[27]
Since the Master's judgment was given, there have been two decisions of the Court of Appeal which bear on the issue: Wilding v A-G [2003] 3 NZLR 787; (2003) 7 HRNZ 158 (CA)Has Litigation History which is not known to be negative[Blue]  and A-G v P F Sugrue Ltd [2004] 1 NZLR 207; (2003) 7 HRNZ 137 (CA)Has Litigation History which is not known to be negative[Blue] , both judgments of a Court of five being given on 26 August 2003. 
[28]
Wilding related to a claim arising out of the circumstances in which the plaintiff, who was subsequently convicted, was apprehended by the police. He was bitten by a police dog and suffered physical injuries and, he claimed, a post-traumatic stress disorder. He sought a declaration that the acts of the police officers were in breach of ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990 and sought “public law compensation” of $80,000. The Court held that a claim for compensation or damages for personal injury whether brought in tort or as a claim for a breach of the New Zealand Bill of Rights Act is barred by the accident compensation legislation, but that that does not mean that there cannot be a claim in respect of a breach of the Act in such circumstances. If a breach is established a remedy may be available by way of declaration, or by way of damages, but not damages so quantified as to provide compensation for the injury itself. Although the injury might be looked at as one way of assessing the seriousness of the breach, the quantum arrived at would be related to the seriousness of the breach, not of the injury. In a sufficiently serious case an award of exemplary damages might be open, but the Court has not determined whether such damages would be available for a breach of the New Zealand Bill of Rights Act. 
[29]
A-G v P F Sugrue Ltd [2004] 1 NZLR 207; (2003) 7 HRNZ 137 (CA)Has Litigation History which is not known to be negative[Blue]  related to a claim in respect of a helicopter seized by the Department of Conservation on the basis of an officer's belief that it had been used in contravention of the Conservation Act for illegal hunting of deer. The claim, for financial loss, was based on s 21 of the New Zealand Bill of Rights Act relating to unreasonable search and seizure. The issue for the Court was whether the claim was based under s 4(1)(d) of the Limitations Act 1950. That provision relates to actions to recover any sum recoverable by virtue of any enactment. 
[30]
The Crown had argued that the claim under the New Zealand Bill of Rights Act was either barred under the section or because of undue delay. The Court found it unnecessary to decide that question because of its decision on the lawfulness of the seizure, but said that if there had been a breach of s 21 no remedy beyond a declaration would have been given because of the 9 year delay in bringing proceedings. It said that a claim for such damages is not governed by s 4(1)(d) of the Limitation Act, and is not barred by any other provision of that Act. 
[31]
It was indicated that a delayed claim for monetary damages might be refused as a matter of substantive decision: 
“[70]
It does not, however, follow that a claim of this nature, for monetary compensation, should be able to be brought no matter how belatedly the claimant chooses to put it forward. Baigent damages are a form of compensation which the court awards, as we have noted, in the exercise of a discretion. In that respect they bear a resemblance to compensation awards in equity. And, as with equitable awards, the court should be able to refuse monetary relief if the plaintiff delays too long in bringing a Baigent claim. The court must have a degree of flexibility in determining how long a delay is too much. All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff's rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim, should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the court will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act, just as it is when there has been a delay in commencing a claim in equity: see generally Matai Industries Ltd v Jensen [1989] 1 NZLR 525Has negative litigation history or citing cases, having been wholly or partly reversed or overruled[Red] . ”
but a declaration of breach might be appropriate: see also para 73. 
[32]
The intending plaintiff relied upon these decisions. For the Crown, it was submitted that A-G v P F Sugrue Ltd [2004] 1 NZLR 207; (2003) 7 HRNZ 137 (CA)Has Litigation History which is not known to be negative[Blue]  went no further than to say that in cases not involving bodily injury there was no limitation provided by the Limitation Act against claims in respect of New Zealand Bill of Rights Act breaches; and that where the claim was based on physical injury, s 4 of the Act provided a bar on the principle in H v H [1997] 2 NZLR 700; (1997) 10 PRNZ 458Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . Thus Sugrue was argued to be distinguishable. 
[33]
The claim in H v H was based on an allegation of rape and related to psychological and psychiatric conditions alleged to have been a consequence of that action. It was sought to bring the action outside the 2 year period provided by s 4(7) of the Limitation Act 1950 under the leave provision in that section if resort to the section was necessary. The proceedings were for exemplary damages based on negligence, trespass by assault and breach of fiduciary duty. The judgment was on the application for leave. 
[34]
It was submitted that the claims based on trespass and fiduciary duty were not affected by s 4(7) because they were not “in respect of the bodily injury of any person”. Eichelbaum CJ held that the subsection did apply on the basis that: 
“a)
In determining liability for exemplary damages, it is the quality of the defendant's conduct that is in question, not whether the plaintiff has suffered a particular type of harm; 
b)
If exemplary damages are to be recoverable, a cause of action for the particular tort must exist, at least for nominal damages. Bodily injury is not a precondition for succeeding on the claim, but where bodily injury has resulted, this will be relevant in categorising the defendant's conduct for purposes of making an assessment of exemplary damages although no damages for the bodily injury as such can be recovered. 
c)
The exemplary damages are parasitic to a cause of action dependent on proof of damage, which in that case would mean or include bodily injury. 
d)
Section 4(7) does not require that the proceeding must be solely in respect of bodily injury before attracting the application of the section. 
The expression ‘in respect of’ in s 4(7) (‘action in respect of the bodily injury to any person’) connotes a wide linkage between the respective subject-matters: Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110Has Cases Citing which are not known to be negative[Green]  at p 111. More specifically, as Roper J said in Maxwell v North Canterbury Hospital Board [1977] 2 NZLR 118Has Cases Citing which are not known to be negative[Green] , if there is a connection or relation between the claim and the personal injuries, then it is an action ‘in respect of … bodily injury’. As already noted the proceeding, at any rate in part, is one relating to bodily injury. The proper conclusion, in my opinion, is that this present proceeding is properly described as one ‘in respect of … bodily injury’ within the meaning of s 4(7), as far as the trespass and breach of fiduciary causes of action are concerned as well. 
Returning to the breach of fiduciary duty cause of action, the appropriate analogy is therefore with s 4(7). For the reasons given in dealing with the negligence cause of action, I decline to grant leave. ”
[35]
It is thus enough to attract the section's operation if bodily injury will be a relevant element in the assessment of any award that might be made. 
[36]
Ms Crutchley submitted that that reasoning applied in this case: that the intending plaintiff has pleaded in respect of all causes of action that he has been put to unnecessary pain and suffering and has suffered progressive neurological disorder because he was untreated, and the Court would have to consider questions of bodily injury in deciding issues about compensation under the New Zealand Bill of Rights Act claim. On the H v H [1997] 2 NZLR 700; (1997) 10 PRNZ 458Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  basis the statutory provision would apply. 
[37]
In my view there is nothing in either of the two recent Court of Appeal judgments which makes the decision in H v H inapplicable to a claim in respect of a breach of the New Zealand Bill of Rights Act when the assessment of any monetary award will involve personal injury as a matter of significance in relation to the defendant's conduct, even when the award is not directly to compensate for the personal injury. There is a direct analogy with the discussion of exemplary damages in H v H. Therefore, the decision of the Master that leave under s 4(7) was required in respect of the New Zealand Bill of Rights Act claim was correct. 
[38]
That does not mean however that leave should not be given. The Master found that there was no prejudice to the intended defendant. In particular dental and medical records are still available. Leave was refused in respect of the first two causes of action because as claims for exemplary damages they could not succeed. The claim in respect of the New Zealand Bill of Rights Act is not governed by the consideration of outrageousness of conduct. That is apparent from the judgment in Wilding v A-G [2003] 3 NZLR 787; (2003) 7 HRNZ 158 (CA)Has Litigation History which is not known to be negative[Blue]  that if a claim is established it may be met by a moderate monetary award or by a declaration of breach. The amount presently claimed is the same amount as was claimed as exemplary damages under the other causes of action, but that is not determinative of any issue. 
[39]
The distinction between what is involved in a claim for exemplary damages founded in tort and in a claim for a remedy for a breach of the New Zealand Bill of Rights Act has been made more clear by the judgment of the Court of Appeal given after the Master's decision. In light of that and because the question of the proper treatment of prisoners is an important one, in my view the interests of justice will be met by confirming the decision not to grant leave in respect of the first two causes of action, but granting leave to proceed, if the intending plaintiff wishes, on the third cause of action related to the New Zealand Bill of Rights Act. 
[40]
Costs are reserved. 

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