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Wilding v Attorney-General [2003] NZCA 205; [2003] 3 NZLR 787; (2003) 7 HRNZ 158 (26 August 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

BETWEEN LEIGHTON BRIAN WILDING
Appellant

AND THE ATTORNEY-GENERAL
Respondent

Hearing: 7 July 2003

Coram: Gault P Keith J Blanchard J Tipping J Anderson J

Appearances: A Shaw, D R La Hood and C Charters for Appellant
A S Butler and J L Foster for Respondent

Judgment: 26 August 2003

[1] This appeal is against a High Court determination of a preliminary question under r418 of the High Court Rules.
[2] The plaintiff, Mr Wilding, is suing the Attorney-General in respect of alleged acts and omissions of the New Zealand Police. The crucial facts remain in dispute. What is not disputed is that on the evening of 1 October 2000 Mr Wilding committed an aggravated robbery of a supermarket in Island Bay. He has been convicted of that offence and is now serving a sentence of imprisonment. The proceeding relates to the circumstances in which he was apprehended by the police. Shortly after the robbery he was located on a property in Island Bay by a police dog. He was bitten by the dog and suffered physical injuries and, he says, resultant post-traumatic stress disorder. Mr Wilding and the two police constables who were following the dog and who arrested Mr Wilding give vastly different accounts of the circumstances in which he came to be injured. Mr Wilding’s allegation is that the police dog handler instructed the dog to bite him after he had been handcuffed and was lying face down. The police officers deny this but, for the purposes of the r418 determination, the Court has been asked to assume the truth of Mr Wilding’s allegation. We have reservations about the use of the r418 procedure in these circumstances. The rule provides for trial separately of a question, and contemplates final determination of that question. Assuming facts, when there is no issue of striking out a cause of action, will seldom enable final determination other than of a hypothetical question. Where serious factual allegations are made, there should be shown good reason why they should not be tried and determined before, as here, the availability of one of the forms of remedy sought is considered. There is no indication that the scope of the trial will be restricted by the decision on the question posed, which is the usual justification for the use of the procedure.
[3] Mr Wilding is suing the police for assault and battery and misfeasance in public office, claiming $50,000 in exemplary damages. He has two further causes of action, to which the preliminary point relates, in which he seeks a declaration that the actions of the police officers were in breach of ss9 and 23(5) of the New Zealand Bill of Rights Act 1990. He also seeks “public law compensation” of $80,000 for the same breaches. The provisions are as follows:

9 Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

...

23 Rights of persons arrested or detained

...

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[4] The Attorney-General says that these Bill of Rights claims cannot be pursued in so far as Mr Wilding seeks compensatory damages for the personal injury, including the mental injury said to have arisen from it. Such claims are said to be barred by s394(1) of the Accident Insurance Act 1998 (in force at the time of the incident but since replaced by the identically worded s317(1) of the Injury Prevention, Rehabilitation and Compensation Act 2001) which states:

394 Proceedings for personal injury

(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—

(a) Personal injury covered by this Act; or

(b) Personal injury covered by the former Acts.

[5] The question was framed in the High Court in the following way:

Can the plaintiff recover public law compensation for personal injury, notwithstanding s394 of the Accident Insurance Act 1998 and s317 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, if the personal injury was sustained in the course of a breach of the plaintiff’s rights pursuant to the New Zealand Bill of Rights Act 1990?

In a judgment delivered in Wellington on 12 November 2002 Ronald Young J answered this question in the negative.

[6] The Judge said that it was common ground that Mr Wilding was entitled to cover under the accident compensation legislation. (In an agreed statement of facts it is recorded that he has not in fact applied for compensation under either Act.) The Judge said that in assessing the quantum of Bill of Rights damages, physical injury caused by the breach might well be relevant “as indicating the level of seriousness of the breach”. The personal injury would not be directly compensated for, but the injury could not be ignored on a reasonable assessment of the seriousness of the breach. However, in this case the personal injury was said to be directly compensable if caused by a breach of the Bill of Rights. After referring to passages from the judgments of members of this Court in Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667, Ronald Young J said that the way in which Mr Wilding chose to express his cause of action for public law damages meant that the cause of action was effectively an action for compensatory damages for personal injury, albeit arising from a Bill of Rights breach. The personal injury was pleaded as the significant result of the alleged breach of the right. He referred to the “social contract” in successive accident compensation statutes as being a trade-off which provided certainty of compensation and rehabilitation in exchange for foregoing common law damages for personal injury. To allow this action formulated in this way seemed to the Judge to directly fly in the face of the “social contract”. The intent of Bill of Rights public law compensatory damages was to ensure that the breach of an important public right by an agency of the State was marked in a way which underlined the importance of the rights. But the Judge could not see that there was any necessity to compensate directly for personal injury suffered as a result of a Bill of Rights breach in order to vindicate that right. The philosophy and purpose of the accident compensation legislation defined what was meant by “damages” in s317: it was intended to cover any form of compensatory payment whether described as damages or compensation which came within the broad description of compensatory payments for personal injury covered by the relevant statute. The plaintiff had argued that the legislation should be interpreted to ensure an effective remedy was provided for breaches of the Bill of Rights. But, the Judge said, an effective remedy was not dependent on an award of damages for personal injury.
[7] Part of Mr Wilding’s case was based on the fear/distress and emotional trauma said to have arisen from the incident. The Judge did not consider that to be outside the “contract”. The legislature had decided that compensation for fear/distress, emotional harm arising from personal injury would not be directly compensated for. That was a policy decision and part of the overall trade-off of the scheme.
[8] At the outset of his argument before us, Mr Shaw, who had not appeared below, suggested that the form of the question was not satisfactory. We agree. It would be better formulated as follows:

Can the plaintiff recover monetary compensation for personal injury directly or indirectly occasioned by a breach of a right affirmed by the New Zealand Bill of Rights Act 1990 notwithstanding s394 of the Accident Insurance Act 1998 and s317 of the Injury Prevention, Rehabilitation and Compensation Act 2001?

It is that question which we propose to address.

[9] It was the appellant’s submission that the Judge had adopted the wrong starting point. He had begun with the accident compensation legislation and the bar contained in s394 but should have gone first to the rights themselves and read the accident compensation legislation in the way required by s6 of the Bill of Rights, namely in the manner which is most consistent with the Bill of Rights. It was submitted that, on this reading, Mr Wilding’s proceeding is not affected by the bar in s394 (or s317) because his claim does not arise directly or indirectly out of personal injury. The claim arises from the conduct of the police officers acting in the performance of a public function, power or duty: s3 of the Bill of Rights. Furthermore, it was submitted, the word “damages” in s394(1) ought to be interpreted as confined to private law claims and as having no relevance to a public law claim for compensation. It was said to have been used in the section in contradistinction to the term “compensation” which appears elsewhere in the same section. This submission was supported by reference to Cooke P’s judgment in Baigent (at 677-8) in which he said that monetary compensation for breach of the Bill of Rights is not “pecuniary damages” for the purpose of s19A of the Judicature Act 1908 [Certain civil proceedings may be tried by jury], which was referring only to common law damages.
[10] Section 6 of the Bill of Rights requires that whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning is to be preferred to any other meaning. But we are not here concerned with a question of the consistency of s394(1) with ss9 and 23(5). The issue, instead, is whether s394(1) bars a monetary remedy for breach of ss9 and 23(5). Baigent damages or compensation is one means by which the courts give an effective remedy for breach of the Bill of Rights. It follows that it is not readily precluded by a bar in another enactment.
[11] We are not, however, persuaded that the construction of s394(1) advanced by the appellant is tenable. The philosophy of the personal injury compensation legislation, as is well known, is to substitute an entitlement to claim compensation, capped as to amount, on a no-fault basis for the right to bring a court proceeding for damages for the injury or to seek in other ways damages or compensation. A proceeding for damages is therefore barred where the damages arise directly or indirectly out of personal injury covered by the scheme. Parliament has provided the remedy of compensation in terms of the accident compensation legislation, which must be taken to be an effective remedy, in the place of the right to claim damages. It was the appellant’s argument that the bar did not apply in this case because the claim was not directly or indirectly related to personal injury. But that is to misread s394(1). The bar operates where the claim is for damages arising directly or indirectly out of personal injury. It is inescapable that if Mr Wilding is seeking damages quantified by reference to his personal injury covered by the Act, the claim, whatever its genesis, is a claim for damages so arising.
[12] And, notwithstanding Mr La Hood’s attractively presented argument on the meaning of “damages” in s394(1), that expression must in context include all forms of monetary award intended to compensate for the personal injury suffered. Parliament was plainly intending to extend the bar widely when it referred to “proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand”. Then subs(2) states limits on the bar in subs(1) but puts them in terms of “compensation”:

(2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,—

(a) Any damage to property; or

(b) Any express term of any contract or agreement (other than an accident insurance contract); or

(c) The unjustifiable dismissal of any person or any other personal grievance arising out of a contract of employment.

However, no court, tribunal, or other body may award compensation in any such proceedings for personal injury of the kinds described in subsection (1).

If compensation claims were not caught by subs(1), it would not be necessary to add the qualification to subs(2). The words “damages” and “compensation” appear indistinguishably elsewhere in the Act, as indeed they do in the judgments in Baigent: see McKay J at 718, referring to the remedy as “an action for damages or monetary compensation” and Hardie Boys J at 703, speaking of “a remedy in the form of damages or other compensation”. Cooke P’s denial (at 677-8) that monetary compensation for breach of the Bill of Rights was “pecuniary damages” was directed to a particular provision in another statute, the Judicature Act, concerning the right to a trial by jury. Understandably, he read that provision as not having application to a public law claim likely to be of a complexity inappropriate for determination other than by Judge alone.

[13] Monetary compensation is not the only possible remedy for someone whose guaranteed rights have been infringed. Relief can be afforded, for instance, by a declaration that there has been a breach of the Bill of Rights or, in a criminal case, by the exclusion of evidence. And in a case such as the present, as will be seen, a monetary sum may be able to be claimed in reliance on the Bill of Rights but on a basis which does not involve compensation for the personal injury.
[14] There is no sound reason why the bar in s394(1) should not apply to a Baigent claim. As has been mentioned, the object of the Court in Baigent was to ensure that someone who suffers a breach of the Bill of Rights has available to them an effective remedy. But where the law provides what is deemed by Parliament to be an effective remedy for personal injury, it cannot be said that there is no effective remedy unless that contemplated in Baigent’s case as one possible means of indicating a guaranteed right is available. Mr Shaw’s approach seemed to be that the Bill of Rights Act is somehow diminished unless, where a breach of a guaranteed right occurs, the remedy must be in the form of an award of monetary compensation under Baigent. We are not of that view. The standing of the Bill of Rights suffers not at all from the fact that a breach of the plaintiff’s rights may be redressed or vindicated by recourse to the common law or to a statute other than the Bill of Rights, although we readily accept that it may well still be appropriate for such a remedy to be accompanied by a declaration concerning the infringement of the plaintiff’s rights. (Mr Wilding, in his amended statement of claim, has indeed added declaratory relief to the monetary relief he had earlier sought.) But, with that qualification, we see no need for direct recourse to the Bill of Rights in a civil claim where an effective remedy can be provided by other means.
[15] As we have said, in the case of a claim based on or related to personal injury, the legislature has decided, in enacting the personal injury compensation legislation, that the effective remedy is found in the entitlements under the scheme. It is not for the courts to question the adequacy of those entitlements and to supplement them by an award of damages quantified directly or indirectly by reference to the personal injury. Contrary to another of Mr Shaw’s arguments, it is not to be thought that, having prescribed a no-fault regime, Parliament nevertheless intended to differentiate between personal injuries, depending on whether they were caused by a State actor or by someone else. Nor can it have been intended to make a difference, for the purposes of compensating for the physical injury and consequential mental injury - as distinct from punishment by way of exemplary damages - whether the injury was inflicted deliberately, negligently or merely accidentally. A dog bite causes the same physical injury and pain no matter whether the dog belonged to the police or a private citizen and no matter whether the dog was acting in accordance with instructions or whether those instructions were given in breach of the appellant’s rights. We reject Mr Shaw’s argument that the State should pay more for the injury itself because it is inflicted in breach of what he called a “higher normative duty” imposed by the Bill of Rights.
[16] That does not mean, however, that the breach of a guaranteed right which results in physical injury cannot be marked out by an award of Baigent damages, merely that the award is not to be quantified so as to provide compensation for the injury itself. We are not called upon to do more than answer the reformulated preliminary question. It would be unwise to express more than a tentative view in the absence of factual findings made at a trial, but it seems to us quite possible that, if Mr Wilding’s allegations can be proven, the High Court could decide to award him monetary compensation for the affront to his rights in being, for example, subjected to degrading treatment in having the dog set upon him. That would not be barred by s394. It might involve looking at the extent of the personal injury in order to judge the potential seriousness of a breach of this kind, but any monetary award would be directed at compensating only for the breach of the right. It would not be given in respect of the resulting injury. The compensation would be for the affront, not for its physical consequences. Putting it another way, there could be damages for the assault but not for the battery.
[17] Another possibility, if it were found that an act or omission on the part of the police officers which amounted to a breach of the Bill of Rights was deliberate or very grossly neglectful, might be an award of exemplary damages, a private law claim for which has been separately made by Mr Wilding. Such a claim against the New Zealand Police for actions of the kind alleged by Mr Wilding may be able to be made on a vicarious basis. That question was left open in S v Attorney-General CA227/02, 15 July 2003 at para [93]. Such an amount, though payable to a plaintiff, is however given to punish a defendant, rather than to provide a remedy of compensation. This Court has not yet determined whether exemplary damages are available on a Baigent claim or whether they can be awarded only in a private law claim. We observe also that the appellant is seeking damages for misfeasance in public office.
[18] By a combination of these means an effective remedy is able to be provided for any proven breach of rights as alleged by Mr Wilding. But, in relation to his personal injury, the effective remedy must be confined to such entitlements as he may have under the accident compensation scheme. As it happens, he is not whilst in prison entitled to weekly compensation payments (see s121 of the 2001 Act) but that is a consequence of his criminal offending specifically provided for by Parliament. It is not a ground for contending that he is being denied an effective remedy for any breach of his rights.
[19] The question, as reformulated in para [8] above, is answered “No” and the appeal is dismissed.

Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington