FORREST V THE ATTORNEY-GENERAL OF NEW ZEALAND (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) HC CHCH CIV 2009-404-006358

FORREST V THE ATTORNEY-GENERAL OF NEW ZEALAND (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) HC CHCH CIV 2009-404-006358 30 March 2010IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2009-404-006358BETWEEN BRENDON DOUGLAS FORREST Appellant AND THE ATTORNEY-GENERAL OF NEW ZEALAND (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS) Respondent Hearing: 30 March 2010 Counsel: Appellant in Person R Kirkness for Respondent Judgment: 30 March 2010JUDGMENT OF FOGARTY J[1] Mr Forrest is appealing a decision of Judge L I Hinton of the District Court delivered on 14 September 2009 dismissing Mr Forrest's application to bring an action in respect of bodily injury, out of time, pursuant to s 4(7) of the Limitation Act 1950:4 Limitation of actions of contract and tort, and certain other actions (7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date: Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so,grant leave accordingly, subject to such conditions (if any) as it thinks it is 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.[2] The bodily injury was a broken arm that Mr Forrest suffered as a result of an incident in the Christchurch Prison. The judgment of Judge Hinton sets out the Crown's version of that incident. In the papers prepared by Mr Forrest before me for the purpose of this appeal he complained that he did not have the opportunity the Crown had to give evidence as to how the incident happened. Accordingly, I asked him to tell me from the bar how it happened. He said that on the day of the incident, on Sunday, 2 December 2001, he was in a designated care unit in prison. He had been moved to another cell within that unit without incident. He agreed that he was then making abusive remarks on the intercom system including making threats to one of the officers and threats of self-harm. A corrections officer came down and suggested he calm down and then three corrections officers came into his cell. He explained that the cell was reasonably long, indicating from the fourth row of counsel's benches down to the Registrar, which I estimate at about ten metres, and he provided me with three photos of the cell. They asked him to change his clothes into strip gear, being a canvas gown. This request was made by the senior officer present. He refused. He was asked a second time. He refused. He was given a final warning. Mr Forrest said he hesitated only two or three seconds and he was about to take off his tracksuit when two of the three officers lunged him, forcing him face down on the bed, twisting his arms behind his back and a snap was heard. That was the breaking of his arm. One of the corrections officers radioed for help. [3] Mr Forrest said that contrary to the police version of events the officers did not fall on him but rather, as I have recorded, lunged or pushed him onto the top of the bed. He said the two officers concerned had been trained in control and restraint procedures. But they were not currently certificated to do it because persons trained in these procedures have to take refresher courses.[4] The causes of action that he wishes to raise are exemplary damages in respect of bodily injury and a cause of action under s 23(5) of the New Zealand Bill of Rights Act 1990 which provides: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.[5] Since the decision of Judge Hinton on 14 December the law in New Zealand on exemplary damages has changed, and changed significantly, by reason of the decision of the Supreme Court: Couch v Attorney-General [2010] NZSC 27 on 24 March 2010. [6] Exemplary damages following bodily injury can only now be obtained where the injury is the result of subjective recklessness on the part of the person or persons causing the assault. Subjective recklessness is explained by one of the Judges in the majority, Tipping J, in paragraph [100] of his judgment:[100] The English language encompasses two distinct states of mind within the single concept of recklessness. The law also recognises the distinction. A person may be described as reckless who does not appreciate an obvious risk of causing harm and proceeds to cause the harm without appreciation of the risk. This is what in law is known as objective recklessness. It is the practical equivalent of a high level of negligence. On the other hand, a person may appreciate the risk of causing harm and proceed nevertheless deliberately to run that risk and end up causing the harm. That is subjective recklessness. Subjective recklessness is generally seen as more culpable and deserving of punishment than objective recklessness. In the case of subjective recklessness there is a conscious appreciation of the risk that one's conduct may cause harm and a deliberate decision to run that risk. The greater the risk and the greater the harm which is likely to ensue, the more culpable the person's conduct will be and the more appropriate it may be to describe it as outrageous.[7] So for Mr Forrest to obtain an award of exemplary damages he has to show that one or more of the two officers who seized him had a conscious appreciation of the risk that their conduct might cause harm and made a deliberate decision to run that risk. Mr Forrest properly agreed that the control and restraint procedures are designed to get a prisoner under control without causing injury. It seems to me that on the best view of the facts the two officers may have botched the CR process as aresult of which it caused injury. Mr Forrest said that the issue would be developed further at trial with medical evidence to the effect that the only way that his arm could be broken was if it was severely twisted behind his back, far more so than would be required by proper CR procedure. [8] Accepting that that evidence is given, I am quite clear in my mind that the facts of the case would simply fall well short of the very high test of subjective recklessness. I am quite clear in my mind about that and it follows, essentially because of the Supreme Court decision in Couch, that the claim for exemplary damages for bodily injury has become hopeless. [9] The second cause of action under the New Zealand Bill of Rights Act is also, I think, on these facts, without any prospect of success. As the Supreme Court emphasised in the decision of Taunoa v Attorney-General [2008] a NZLR 429, there is a distinction between s 9 and s 23(5). Section 9 provides:9 Right not to be subjected to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.[10] Blanchard J said in paragraph [170] of his decision in Taunoa:[170] As in the ICCPR, there are degrees of reprehensibility evident in ss 9 and 23(5). Section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances. Section 23(5), which is confined in application to persons deprived of their liberty, proscribes conduct which is unacceptable in our society but of a lesser order, not rising to a level deserving to be called outrageous.McGrath J then said:[339] Section 23(5) specifically focuses on the rights of those deprived of liberty to be treated with respect for human dignity, whereas s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment. This may be thought to indicate that s 9 is a statement of general principle concerning rights while s 23(5) is a more specific statement particularly applicable to detained persons. Consistently with such analysis, the 1985 White Paper on the Bill of Rights suggested there was an overlap between the provisions. I am, however, persuaded by the analysis undertaken by Blanchard J of the two statutory provisions, their antecedents in human rights instruments, and the international commentary, that there is a hierarchy between ss 9 and 23(5)which shows they are separate though complementary affirmations of rights. Their hierarchical relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. This hierarchy points to imposing a high threshold to be met before a court finds that there has been a breach of the prohibition in s 9 of "cruel, degrading or disproportionately severe treatment or punishment". Where such a claim is made, the court must review the appropriateness of any treatment by the state of persons in the particular circumstances according to whether that threshold is met.[11] In the light of that paragraph, I think that the problem Mr Forrest faces is that he agrees that there was a justification for the two police officers to commence the CR procedure. It cannot be suggested that the CR procedure, if carried out properly, is an inhumane practice, contrary to human dignity. Secondly, it must be noted that part of the context of it being carried out is that at the time Mr Forrest was threatening self-harm. He acknowledges, and there is ample evidence of it, that he did at the time have mental health problems. His complaint which he is bringing to the Court is not that the CR procedure was invoked but as to the way it was carried out. [12] In my view there is no doubt that s 23(5) is not intended to cover failed procedures of trained correction officers where the correction officers are not deliberately intending to cause the harm. The mischief that s 23(5) is directed to avoid is of persons who are deprived of their liberty being treated in a degrading fashion, inhumanely, contrary to the inherent dignity of their person. This is simply not one of those cases. Even on the best view of how the facts can be described it does not come within range at all of this section. [13] For these reasons I am satisfied, albeit for different reasons in respect of the negligence claim, that the decision of Judge Hinton was correct. [14] Mr Forrest then raised a third point which Judge Hinton did not consider and that is s 24(a) of the Limitation Act which provides:24 Extension of limitation period in case of disabilityIf, on the date when any right of action accrued for which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability, -(a) In the case of any action in respect of the death of or bodily injury to any person, or of any action to recover a penalty or forfeiture or sum by way thereof by virtue of any enactment where the action is brought by an aggrieved party, the right of action shall be deemed to have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred; or[15] He argued that he was under a disability due to mental ill health until March 2008. On analysis, even if this is true, this does not assist him. As the Court of Appeal explained in P v T 1 NZLR 257, to come within s 24 it is necessary to firstly prove that the person has a demonstrable and recognised mental illness or disability, and I will assume for the moment, that that may be true. But then, secondly, to show that that mental illness or disability sufficiently inhibited the person's capacity to sue so as to preclude him or her from bringing proceedings, rather than being just an inability to face up to the process of suing. [16] In the period from 30 January 2007 through to the end of that year Mr Forrest commenced five proceedings against the Department of Corrections. Even if his mental health disability continued up to March 2008 this indicates that within the year 2007 he had the capacity to bring proceedings. Even if he did not have the mental capacity to bring proceedings from 2001 through to 2007, we need to take into account that he was 18 at the time he suffered this injury and he turned 20 on 28 September 2003. Time started to run from that period. [17] The six year maximum period for bringing claims for bodily injury therefore extended out to September 2009. If he was under a disability which prevented him from commencing proceedings in the two years from September 2003 to September 2005 that becomes a consideration to be taken into account under s 4(7). In my s 4(7) analysis I have not discussed his mental health and the fact that it may have been causing a disability at the time. This is because even assuming he was disabled from bringing proceedings from September 2003 to September 2005, that of itself, does not justify granting leave under s 4(7). It is one of the factors to be taken into account. But it seemed to me that the critical factor is that the leave should never be granted under s 4(7) where the causes of action are hopeless.[18] So for these reasons I do not think this additional s 24 point changes in any material way the analysis. In short, this Court will not grant leave to Mr Forrest to bring proceedings out of time because his two causes of action have no prospect of success. For slightly different reasons I affirm the decision of Judge Hinton and the appeal is dismissed.Solicitors: Crown Law, Wellington, for Respondent cc: Mr B D Forrest