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APPENDIX B

Likely Consequences of Baigent’s Case in Fact: The position elsewhere

B1 _At the Commission’s request, Paul Rishworth and Grant Huscroft of the University of Auckland carried out a survey, “Damages for breach of individual rights in the United States of America, Canada, Ireland, the Caribbean, India, Sri Lanka, the European Union and under the European Convention on Human Rights”. This survey tends to indicate that:

• the number of cases in which damages are awarded is not high, and
• the courts draw on tort principles when considering whether there has been a breach of the right and when calculating damages.

B2 In the United States claims may be brought against state officials under the Civil Rights Act 1871, 42 USC s 1983, and federal officials – so called “Bivens actions” – for breach of the Constitution. The immunities available to state and federal officials are relevant to whether an action succeeds, and tort principles apply so that awards are usually compensation for actual damage only. Federal and state immunity (including immunity of federal agencies) remains except to the extent that vicarious liability claims may be brought against the Federal Government under the Federal Tort Claims Act 1946, 28 USC s 1346(b). Following Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics 403 US 388, 29 L Ed 2d 619 (1971), which awarded damages against federal agents for an unlawful search, the Federal Tort Claims Act was amended to include claims arising out of assault, false imprisonment, false arrest, abuse of process, or malicious prosecution.

B3 The survey concludes:

• For the most part, this tension (between vindicating constitutional rights and protecting state officials from undue liability and harassment) has been resolved by the courts in favour of protecting state officials (s 1983 cases).
• The Bivens action is so rarely available that it cannot be considered constitutionally significant. According to one survey, of 12 000 Bivens actions reported to have been filed as at 1985, only 30 resulted in judgments for the plaintiffs. Most of these were reversed on appeal, and only four judgments were actually paid by the federal defendants.

B4 In Canada s 24(1) of the Charter of Rights and Freedoms provides that:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

In the 13 years following the passage of the Charter, the damages remedy has not been significant, and there is no clear appellate authority about the approach to the remedy. There is uncertainty about whether liability is direct or vicarious, the relevance of statutory immunities, the extent of misconduct or intent necessary before damages will be awarded, and the relevance of tort principles. Where damages are awarded, the cases surveyed indicate that the amounts are usually under $10 000 and often much less.

B5 Damages are available for breach of constitutional rights in Ireland. It seems to have been more significant there but the situation differs from New Zealand’s in two important respects:

• fundamental rights can be enforced against private individuals (against whom many of the non-monetary penalties regularly issued against public bodies are not likely to be available or appropriate); and
• the range of rights protected by the Constitution is broader, and includes rights for the breach of which monetary relief is more appropriate: the right to privacy, the right not to be interfered with in earning a living, and the right to an education.

Despite these differences it is interesting to note, first, that some cases have read in immunities even though the constitutional rights are entrenched, and second, that tort principles are applied in the calculation of damages.

B6 The case law in the Caribbean indicates that actions for damages for breach of constitutional rights are not significant and that the majority of cases seem accommodated within the boundaries of tort law.

B7 In India the Supreme Court has held damages to be available for breach of the Constitution. The action is one in public law against the state, whose liability would appear to be absolute. An award of compensation will only be made, however, when it is the only practicable means of enforcing the fundamental right.

B8 In Sri Lanka, damages for breach of rights under the Constitution are also available.

B9 Paragraph 37 and footnote 10 of the main text touch briefly upon remedies developed by the European Court of Justice for breaches at domestic law level of rights conferred directly on individuals under Community law. These remedies include, in limited circumstances, awards of damages: see Brasserie du Pêcheur SA v Federal Republic of Germany; Reg v Secretary of State for Transport, ex p Factortame Ltd & Ors (No 4) [1996] QB 404. The European Court of Human Rights has also awarded damages for breaches of the European Convention of Human Rights.

B10 This international experience suggests that damages for breach of constitutional rights is not a remedy central to judicial enforcement of individual rights. The existing law of tort would seem to have continued to meet the need to compensate persons adversely affected by the wrongful actions of others including those exercising public powers. That result is not at all surprising. That law has been developed carefully and incrementally over several centuries to give remedies to those whose basic rights – now recognised and affirmed in New Zealand in the Bill of Rights Act – have been infringed. It would be surprising if those developments had left large gaps in the remedies available. But, as the occasional case shows, instances do occur when a supplementary remedy is considered appropriate.