New Zealand Bill of Rights Act 1990 (BORA), s 23(5) – prisoner-on-prisoner assault – liability of Department of Corrections in negligence and for alleged breaches of BORA – interpretation of s 23(5) BORA ‘humanity’ and ‘inherent dignity’ – minimum level of severity of inhuman treatment required to breach the protected rights – relevant circumstances for assessment – relationship with s 9 BORA – need for wilful wrongdoing or gross negligence for breach of s 23(5).
A v Attorney-General  NZCA 166 per Gilbert, Goddard and Simon France JJ.
A was a serving prisoner at Whanganui Prison when he was assaulted by another prisoner, C, in an exercise yard in June 2017, suffering bruising, a cut lip and redness to the top of his head. A sued the Attorney-General on behalf of the Department of Corrections for negligence and for allegedly breaching his rights under the New Zealand Bill of Rights Act 1990 (BORA) – in particular, his right not to be subject to torture or cruel, degrading or disproportionately severe treatment or punishment (s 9) and his right as a detained person to be treated with humanity and with respect for his inherent dignity (s 23(5)).
The High Court found Corrections was negligent in leaving A with C together in the exercise yard without supervision, but did not consider an award of exemplary damages was warranted, observing this was “a one-off mistake by a well-intentioned and not indifferent Corrections officer”. The BORA claims were dismissed.
A appealed the High Court’s dismissal of part of his BORA claim, arguing Corrections knew, or ought to have known, that C posed a real and immediate risk to A’s safety, was under an obligation to take all reasonable steps to prevent that risk from materialising, and therefore the failure to do so constituted a breach of his s 23(5) BORA right.
BORA, s 23(5) – interpretation – meaning of terms ‘humanity’ and ‘inherent dignity’ – minimum level of severity of inhuman treatment required to breach the protected right – relevant circumstances for assessment – positive duty imposed on state under s 23(5) is to be assessed objectively – relationship with s 9 BORA – differing degrees of reprehensibility – what is sufficient for a breach of s 23(5)?
Held: The appeal is dismissed. A’s formulation of the test – that state actors are required to take all reasonable steps to protect against a real and immediate risk to safety that was either known or ought to have been known to them — would render Corrections liable under s 23(5) for simple negligence. In the context of prisoner-on-prisoner violence, where an alleged breach on the part of state actors is the product of negligence but does not involve wilful wrongdoing or similar, only an egregious departure from acceptable standards of care amounting to gross negligence could be found a breach of s 23(5) BORA. There is no room for a finding of gross negligence in this case – there was no element of egregiousness or reprehensibility.