IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-001197 [2013] NZHC 3509

IN THE MATTER OF	An application pursuant to the Corrections Act and the New Zealand Bill of Rights Act

BETWEEN	KERRY WILLIAMS Plaintiff

AND	CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS
First Defendant

AND	THE ATTORNEY-GENERAL Second Defendant

Hearing:	16 December 2013

Appearances:	G Minchin for the Plaintiff
B J Keith for the M E Gaudin for the Defendants

Judgment:	19 December 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
19.12.13 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

K WILLIAMS v CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS [2013] NZHC 3509 [19 December
2013]

[1]       The defendants have applied to strike out Mr Williams' proceeding claims.

Mr Williams’ proceeding

[2]       Mr Williams claims compensation for alleged errors in medical treatment and in the prison diet provided to him over the period from 20 December 2003 to 30 June
2011 while he was a prison inmate.

[3]       Mr Williams pleads in some length those instances of failure which are said to give rise to actionable breaches of statutory duty under the Corrections Act 2004 and which are said to constitute degrading and disproportionately severe treatment which is prohibited by s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). He intends to amend his pleadings to include a claim for breach of s 23(5) to NZBORA that he as a prison inmate was not treated with humanity and with respect for the inherent dignity of the person.

[4]       Mr  Williams  seeks  compensation  of  $200,000.    He  also  applies  for  a declaration of breaches under the Declaratory Judgments Act 1908, in respect of the alleged breaches of the two aforementioned Acts, and under the United Nations Standard Minimal Rules for the Treatment of Prisoners.

Medical background

[5]       Mr Williams’ history of medical issues is the subject of a significant record maintained by the first defendant.  For present purposes and adopting Mr Minchin’s brief summary, the medical concerns began in September 2003 when he developed a cyst for which the drug Brufen was prescribed until about October 2004 when prison medical services removed the cyst.

[6]       In January 2005 Mr Williams experienced an allergic reaction after eating sandwiches for lunch.  Over the next three and a half years until August 2008 there is an extensive record of mostly mild, but also numerous severe allergic reactions when hospitalisation was required.

[7]       Mr Williams believes there is a connection between his having earlier been prescribed  Brufen,  and  the  occurrence  of  allergenic  attacks  subsequently.    In February 2005 Mr Williams discussed this possibility with prison medical staff.  On
28 June 2005 medical staff discussed Mr Williams' diet and noted he was not to be given Brufen or aspirin.   In August 2005 Mr Williams was hospitalised.   Records noted a severe allergic reaction after working with food scraps.  On 28 September
2005  adrenalin  was  administered  after  Mr  Williams  suffered  a  severe  allergic reaction after eating lunch.

[8]       On 6 October 2005 Mr Williams was diagnosed as allergic to cereal mix.

[9]       Records note on 4 November details of food/medication that ought to be avoided.  On 10 November medical advice was given to the prison of a suggested meal plan.

[10]     On 6 December prison medical staff reminded kitchen staff of the need for strict compliance with diet.

[11]     On  30  December  2005  Mr  Williams  was  issued  with  his  own  cooking facilities and provided with unprepared food directly until 2007 when at Auckland Prison. A ‘chilli’ bin was provided to him.

[12]     Records note that Mr Williams' diet was monotonous and that stewing beef had been provided at one point but Mr Williams broke teeth while eating it.

[13]     On  29  June  2007  Mr  Williams’ food  was  delivered  by  a  kitchen  work prisoner wearing fish-batter splattered gloves.   Records note the issue was immediately raised with the prison nurse.

[14]     On 21 July 2007 Mr Williams was recorded as having an allergic reaction on the playing field because of bread thrown onto the field for birds.

[15]   Records note that on 28 September cheese issued to Mr Williams was contaminated by foreign objects pressed into the surface.

[16]	On 8 February 2008 Mr Williams identifies Complan, prescribed by prison medical staff, as the source of continued allergic reactions.

[17]	On  8 August  2008  Mr  Williams’ dietician  provides  a  list  of  guaranteed

gluten-free products.

[18]	From then until Mr Williams release in September 2011 records note, inter alia:

(a)       Mr Williams requested the dieticians listed products to be stocked in the prison kitchen and was advised those were not available from the prison supplier.

(b)       Mr Williams ate non-gluten free weetbix out of hunger after having just celery and a carrot for lunch.

(c)	Mr Williams lodged a complaint over a meal not provided at all.

(d)       Mr Williams' gluten free bread issue provided a smaller meal than other prisoners’ bread issue.

(e)       Mr Williams requests particular medically recommended gluten-free food through the prison canteen.

(f)	Three weeks later Mr Williams repeats the request. (g)	Four days later the request were declined.
(h)       Three days later Mr Williams disputed the decision to decline the request.

(i)	Ten days later the request was declined again.

(j)	Six weeks later Mr Williams was released on 13 September 2011.

[19]     It is Mr Williams’ position that the defendants were dilatory in obtaining a diagnosis of his condition; that once a diagnosis was obtained the defendants were dilatory in providing a safe diet for him, resulting in him sustaining numerous small reactions and also a number of life threatening anaphylactic shocks.  Mr Williams says the non allergenic diet ultimately provided to him was inadequate, at times necessitating him eating glutinous foods out of hunger.

[20]     In short Mr Williams’ proceeding identifies four aspects:

(a)       A  claim  over  a  prescription  by  a  prison  medical  officer  from September 2003 onwards, when anti-inflammatory medication (Brufen) is said to have caused him to develop food allergies;

(b)       A claim  of  delay in  “adequately”  diagnosing  those  allergies  from initial  allergic  reactions  on  January  2005,  including  the  first  of repeated  reactions  requiring  hospitalisation  in  June  2005,  until October 2005;

(c)	A claim  over  further  mild  to  severe  allergic  reactions,  which  are

described as coming “after” consuming the standard prison diet in

2005 and then, following the prescription of an allergen-free diet following  the  October  2005  diagnosis,  “after”  occasional contaminants in a prescribed allergen-free diet and other contact with food, from late 2005 to 2008;

(d)       A claim  that  the diet  provided  from  late 2005  until  Mr Williams release in 2011 was at times inadequate, inedible or monotonous.

Strike out application

[21]     The defendants strike out application identifies the following grounds:

Claims for personal injury, including treatment injury

[22]     The defendants say the prescription of anti inflammatory medication and claims of delay in diagnosis are really aspects of treatment injuries as defined by ss
32  and  33  of the Accident  Compensation Act  2001;  that  claims  relating to  the administration of a diet to address Mr Williams’ medical condition are themselves personal injuries within the meaning of “accident” in s 25 of the Act.  Therefore and leaving aside claims of “outrageous” conduct claimed by Mr Williams to warrant exemplary damages under s 9 of NZBORA, civil proceedings seeking compensation including by way of claimed breaches of statutory duty are, the defendants say, precluded by the Accident Compensation Act bar in s 317 of the Act.

Limitation period for bodily injury claims

[23]     The defendants say the claim was filed nearly 10 years after the alleged wrongful prescription of Brufen and eight years since the onset and diagnosis of the allergies.  With the exception of one allegation of an allergic reaction in 2011 shortly before Mr Williams was released from prison, the defendants say all claims are barred by the bodily injury limitation period in s 4(7) of the Limitation Act 1950.

[24]     Mr Keith for the defendants submits that other than five allergenic reactions suffered in 2008 almost all of the claim now falls beyond the six year period to seek leave to bring such claims, including any claim under NZBORA.

[25]     The defendants argue that Mr Williams would not meet the threshold for a grant of leave to bring claims out of time and certainly not where those claims are statute barred or where there will be prejudice for a defendant in defending the claim, or because Mr Williams has long had knowledge and advice of his injuries and their possible cause in 2004 (for the medication) and in 2005 (for the food allergies), and should have done something about those long before he did.

The claim does not allege outrageous conduct to warrant exemplary damages or breach of s 9 NZBORA

[26]     Mr Keith submits the threshold for exemplary damages and for breach of s 9 is  outrageous  conduct  but  that  the  severity  of  the  plaintiff ’s  allergic  reactions including those requiring hospitalisation does itself give rise to a breach of s 9.  In Couch (No.2)1  the Supreme Court held that an award of exemplary damages is not limited to intentional torts and would not be awarded unless there had been a conscious appreciation of the risk of causing harm.  In other words, for subjective
and  outrageous  recklessness  but  not  for  subjective  recklessness  even  if  it  was capable of being described as outrageous.

[27]     In Taunoa v Attorney-General2  the Court assessed the claims of prisoners who had been subjected to a Behaviour Management Regime (BMR) introduced by the Department of Corrections to manage difficult and dangerous prisoners.   Mr Taunoa and others brought proceedings alleging individual and systemic breaches of the Penal Institutions Act and of ss 9 and 23 of NZBORA.

[28]     The High Court ruled that the BMR did not come within the s 9 prohibition of cruel, degrading or disproportionately severe treatment or punishment.  The Court did  make  declarations  and  awarded  compensation  to  each  of  the  prisoners. Eventually in an appeal to the Supreme Court that Court confirmed that the BMR did not amount to a behaviour which breached s 9.  The Court noted that the prohibition of “disproportionately severe” treatment or punishment in s 9 had to take its colour from the rest of the section; that s 23(5) which imposed a positive obligation upon the  state  was  confined  in  application  to  persons  deprived  of  liberty  and  was concerned with conduct unacceptable in New Zealand, but of a lesser order than that prohibited by s 9.

[29]     The Court held that in determining whether a damages award was to form part of an effective and proportionate remedy for breach of the Bill of Rights Act in a particular case, the Court was to begin with the nature of the right and the nature of the breach.  Any sum awarded should, it said, reflect any relevant intention behind the  conduct,  the  duration  of  the  breach  and  the  ways  in  which  the  state  had
acknowledged the wrongdoing.  The Court was not to proceed on the basis of any

1 Couch (No.2)v Attorney-General [2010] 3 NZLR 149 (SC).
2 Taunoa v Attorney-General [2008] 1 NZLR 429.

equivalence with the quantum of awards in tort.   The sum had to be enough to provide an incentive to the state not to repeat the infringing conduct and to ensure the plaintiff did not reasonably feel that the award was trivialising of the breach.

[30]     In  this  case  Mr  Keith  submits  the  relevant  conduct  as  alleged  is  not outrageous; further that Mr Williams had regular access to medical staff and assistance, including the external referrals in the provision of medication for self administration in the event of a reaction, and that the prison medical and other staff made ongoing efforts to provide an allergen-free diet.

[31]     Therefore, it is submitted there is no basis for an exemplary damages claim under NZBORA.

No actionable statutory duty

[32]     The defendant’s position is that ss 72 and 75 of the Corrections Act do not establish statutory duties enforceable in tort, short of physical injury or impairment of health having been caused.   Rather the duties therein are enforceable through complaint and other process available.

Declaratory judgment cannot issue

[33]     Mr Keith submits a declaration can only issue where all material facts are not in dispute and he says clearly that is not the case here.

Legal principles

[34]     There is no disagreement regarding these.  Pleaded facts are assumed to be provable; causes of action must be so clearly untenable that they cannot possibly succeed if a proceeding or part of it is to be struck out.

[35]     The jurisdiction is exercised sparingly and only in clear cases.  Strike out is available even if difficult questions of law requiring extensive argument is involved.

Summary of defendants’ position

[36]     It was confirmed by the Court of Appeal in Downie3 that:

[25]      Personal injury caused ‘wholly or substantially by gradual process, disease or infection’ is not covered by the Act unless it is personal injury that is medical misadventure...

[26]      ... If there was negligence on the part of a doctor or other health professional in the diagnosis, treatment or discharge of the plaintiff, which was causatively linked to adverse physical consequences... then Accident Compensation cover would exist and a claim in the Court would be barred.

[37]     The defendants argue that most of Mr Williams concerns constitute treatment injuries including the diagnosis, provision of treatment, alleged failure to provide such or in a timely manner, and in the administration and in support of treatment. Even a late diagnosis can amount to ‘treatment’.  Regarding Mr Williams claims that his special diet was on occasion missing, inadequate, and monotonous or inedible, Mr Keith submits all these difficulties arise directly from the administration of a prescribed diet and the events occurred only because of that prescribed diet.  Claims of errors or shortcomings all form part of the administration of that prescribed diet. Regarding Mr Williams complaints of non provision of certain products in the prison kitchen and the prison canteen the defendants say that these complaints do not give rise to any actionable harm.

[38]     Mr Keith submits the anaphylactic adverse reactions are themselves personal injuries  under ss  25  and  26  of the Act.    Reactions  to  the taking of  prescribed medication are deemed treatment injuries.

[39]     Whilst in some respects Mr Williams pleadings do not specifically allege that the reactions were caused by medical treatment and diagnosis, but instead by a failure to “provide and maintain a diet... which avoided allergenic reactions” there were, Mr Keith submits, an outcome from diagnosis and direction to ameliorate
adverse consequences.

3 Residual Health Management Unit v Downie [2005] NZAR 298 (CA).

[40]     It follows, the defendants say, that with the exception of questions as to outrageousness (s 9 NZBORA), or missed or inadequate meals, or in respect of the claim for a declaration, that all claims are barred by s 317 of the Act.

[41]     The defendants’ position is that with an exception concerning an anaphylactic attack in 2011, Mr Williams’ claims are time barred.  Any association with Brufen was identified in 2004.   Claims concerning diagnosis were evident from October
2005 when Mr Williams was diagnosed with a cereal allergy.  Further, all but one of the pleaded allergic reactions occurred outside the two year claim period for personal injury and almost all of those took place more than six years ago.  Mr Keith submits the further reactions constitute continuing damage from the initial claim and neither is it a case of gradual acquisition of an adverse condition spanning the expiry date, as is often the case in an industrial disease claims.

[42]     Overall  and  in  relation  to  the  prospect  of  obtaining  leave  to  bring  a proceeding out of time, Mr Keith submits:

(a)       Leave will not be granted where the claim is barred by the Accident Compensation Act and where there is no allegation of outrageous conduct to warrant exemplary damages.

(b)       Mr Williams has long had the necessary knowledge from which his claims could be advanced and there is no good reason why those claims could not have been advanced earlier.

(c)       With the elapse of time it is far too difficult to embark on an enquiry to be certain whether his allergies were attributable to medical prescription or could have been linked to his involvement in the manufacture of methamphetamine for which offence he was imprisoned.  Mr Keith submits that each pleaded reaction occurred on distinct dates and so the question of liability for each will necessarily turn on the particular circumstances pleaded including whether the reaction is even attributable to food provided by the prison or was otherwise due to environmental or other factors.

[43]     Mr Keith cited a number of authorities in support of these positions advanced at this time on behalf of the defendants.  In Sugrue4  the Court of Appeal accepted that  compensation  claims  under  NZBORA  could  be  declined  for  delay  on  an equitable basis; however the Court left open the circumstances in which declaratory relief might or might not have been entertained nevertheless.   Taylor v Attorney- General5  concerned a claim over an alleged unlawful segregation of a prisoner 14 years earlier.  A Court held in those circumstances it would not allow the grant of a declaratory judgment.

[44]     Regarding the claim for exemplary damages it is the defendants’ position that the threshold has been set very high by previous Courts including in the Couch (No.2) and Taunoa cases. As noted from those:

Degrading treatment is treatment which gravely humiliates and debases the persons subjected to it.

Disproportionately severe treatment  is  conduct  which  is  so  severe  as to shock the national consciousness or so grossly disproportionate as to cause shock and revulsion.  It is a standard well beyond even manifestly excessive treatment.6

[45]     Mr Keith submits it is clear that none of the aspects of Mr Williams’ claims approaches the test of outrageous conduct, and in any event claims of inability or refusal to stop particular foods in prison kitchens and canteens cannot, Mr Keith submits, give rise to an actionable claim in tort.

[46]     Mr Keith submits that no actionable statutory duty claim exists under the Corrections Act because ss 72 and 75 are not intended to confer a private right of action for breach of duty. The reasons are he submits:

(a)	The Corrections Act does not indicate any attempt to compensate for breach in tort.

(b)	The  Act  does  provide  for  other  means  of  enforcement,  notably through the prison complaints system and also prisoners have recourse

4 Sugrue v Attorney-General [2004] NZLR 207 (CA).
5 HC, Auckland, CIV 2010-404-6985, Allan J, 11 November 2011.
6 Taunoa [172], [176] – [177], [212], [289].

to the Ombudsman or under the Health and Disability Commissioner

Act 1994.

[47]     Finally  and  concerning  seeking  declaratory  judgment  it  is  submitted  in relation to the United Nations standard minimum rules for the treatment of prisoners is a non binding international instrument and cannot directly be pleaded before the New Zealand Courts.

Considerations and conclusions

[48]    There is an element of uncertainty concerning claims connected to well documented incidences of allergic reaction and anaphylactic shock.   Mr Williams’ pleadings appear to suggest an initial connection with the prescription of Brufen to ameliorate pain associated with a cyst.   It also appears to be suggested that there were ongoing effects from the prescription which emerged in the form of allergenic attacks/anaphylactic shocks after the cyst was removed and after Brufen was no longer prescribed.

[49]     From 2005 there has been a record of attacks and shocks after meals.   A

significant number of these resulted in Mr Williams hospitalisation.  In October 2006

Mr Williams was diagnosed as allergic to cereal mix.  Difficulties arose regarding the supply of adequate food to meet Mr Williams’ requirements.  Reportedly little food and sometimes on occasions no food at all was supplied.  Nor, was Mr Williams able to supplement his diet himself by purchasing gluten free food from a prison canteen – he says because apart from fruit nothing at all was available there.

[50]     In  February  2008  Mr  Williams  identifies  Complan,  which  had  been prescribed by a prison medical staff, as a source of continued allergic reactions.

[51]     Only one allergic reaction occurred after August 2008 and that was nearly

three years later in June 2011, shortly prior to Mr Williams’ prison release.

[52]     Mr Williams’ concerns involve in the mix claims of improper care and a claim of insufficient resources to address dietary concerns.

[53]     Mr Keith submits in reality they are both elements of the provision of care provided in connection with patient treatment.  Therefore it is submitted all claims are barred by the Accident Compensation Act 2001 and even if there is any doubt about that conclusion then the Acts Mr Williams complains of are beyond that period for which leave could be permitted to him to bring a claim in respect of personal injury.

[54]     Insofar as Mr Williams claims allege breaches of NZBORA Mr Keith submits they too are subject to s 4(7) of the Limitation Act 1950.

[55]     Mr Keith’s submissions address matters likely to be considered if leave was sought for the purpose of bringing proceedings out of time.  He mentions difficulties regarding the review of medical evidence, some of it nearly 10 years old; and that Mr Williams has known of his health difficulties at least as long as 8 years ago but he has done nothing about those.

[56]     Mr  Keith  submits  Mr  Williams’ circumstances  contain  no  allegation  of outrageous conduct to warrant an award of exemplary damages under s 9.  Further counsel submits breaches of the Corrections Act do not establish a cause of action for compensation in tort because of provisions of the Act do not indicate any such intention, and besides other avenues are available to address appropriate complaints.

[57]   These strong submissions notwithstanding, the Court retains a sense of uneasiness about reaching certainty about the conclusions urged upon it.  Whilst the evidence suggests Mr Williams complaints contain separate parts as pleaded it may however be that many of these elements affecting Mr Williams are linked.

[58]     Mr Minchin says a sufficient medical record is available.  That may be so but the uncertainty of medical conclusion might well require further input from experts. Because of the comprehensive nature of the medical records in question little prejudice ought to occur because of the requirement of experts to comment upon those records.

[59]     Regarding what parts of pleaded complaints are related to treatment and what parts are not, appears unclear.  Much of the effort required to service Mr Williams’ particular circumstances was not provided by medics but by Corrections’ staff and sometimes by other prisoners.  The fact that that effort may have been given for the sake of addressing dietary concerns should not prevent a Court from considering the relevance of that conduct from the point of view of a resource allocation decision for as the Accident Compensation Act makes clear any injury caused for those reasons is not a treatment injury and is not covered by the Accident Compensation Act and therefore  is  not  precluded  by  that Act  from  being  advanced  in  support  of  Mr Williams’ claims.  It is not apparent from the lapse of time involved that this will likely cause issues for a factual enquiry.

[60]     Whilst it was always available for Mr Williams to pursue complaints to the Ombudsman it is reasonable to believe that access by prisoners to these opportunities is likely to be hindered by delay and process.

[61]     In conclusion it may well be that most of Mr Williams’ injuries are personal or treatment injuries.  The Court is concerned there may be elements of its claims which do not fall into that category.   Further and in that analysis there may be reasons why an application for leave might be granted to enable claims to be brought out of time.

[62]     Mr Minchin submits that Mr Williams cannot be excluded from claiming damages by the Accident Compensation Act when, as he says, the Accident Compensation Corporation has never accepted his condition as having come within the Act.  Mr Minchin submits also and the Court agrees that it is available for proof that much of the injuries sustained were solely attributable to resource allocation decisions; that it is a question of fact as to whether the decisions were made by a registered health professional in the course of the administration of treatment, or were made by the Department of Corrections as resource allocation decisions.  He submits inadequate diet and refusals to permit Mr Williams to buy non allergenic foods are not personal injury or treatment injury claims.

[63]     Mr Williams’ claims are not just about s 9 but also about s 23 of NZBORA. As noted earlier Mr Williams has not yet pleaded breaches of s 23 but an opportunity to do so may still be available to him.

[64]     Section 9 refers to what is colloquially identified as “outrageous” conduct.

Section 23(5) refers to an obligation to respect humanity and to treat with dignity.

[65]     In Vogel v AG7 the Court of Appeal considered appeals under ss 9 and 23(5) in which a concurrent breach of the Penal Institutions Act 1954 was alleged, in regard to solitary confinement for more than the permissible period.  Citing Tanuoa the Court held:

[69]      Elias CJ held that s 23(5) was concerned to ensure that prisoners are treated “humanely”.  It has been noted that a failure to observe the positive duty contained in s 23(5) is different from a breach of s 9: in the case of s
23(5) a claim can be made that a statutory standard has not been met and, in terms of potential liability, why the standard has not been met does not matter.   Consequently, issues such as the intentional infliction of harm, or consciously reckless indifference to causing harm, need not be features of a claim of breach of s 23(5).  On this approach, a failure to observe the law relating to prison management may “more readily cause a breach of the State’s positive duty under s 23(5)”.

[66]     Regarding  Mr  Williams’ claims  of  breaches  of  statutory  duty  under  the Corrections Act, the defendants’ position is that such are barred by the Accident Compensation Act.   Also  it  is  that  such  claims  are  not  actionable  because  the provisions of the Act do not identify that is a purpose of the Act.

[67]     As to the first ground of opposition the Court has already addressed the question of whether or not a Court can conclude that the Accident Compensation Act precludes the availability of action in respect of Mr Williams’ complaints.

[68]     In response to the second ground Mr Minchin submits that the Act does provide a private law remedy because otherwise those statutory duties would be unenforceable.   Mr Minchin rejects claims that Mr Williams has recourse to other processes and he notes that in the case of Taylor v Attorney-General Allan J held that
whilst Mr Taylor relied on provisions of the Corrections Act the learned Judge held

7 [2013] NZCA 545.

that by reference to those it was not possible to spell out a duty of care owed to individual prisoners.   However and notwithstanding this view that those sections could not grant a duty of care to an individual prisoner the learned Judge did not strike out that cause of action because it could not be said that a cause of action in negligence would be certain to fail.   In this case this Court inclines to the same approach.

[69]     In this case, as earlier noted, there was a need for enquiry to determine whether the Accident Compensation Act operates as a complete bar to Mr Williams’ claims.  In that outcome it may be appropriate to consider whether recourse to other causes of action can be appropriately addressed.

[70]     The Limitation Act 1950 does not refer to claims pursuant to NZBORA nor the Corrections Act.   For the defendants it is argued that the authority of Sugrue supports the proposition that public law claims must be brought in a timely manner. In that case the Court of Appeal held that the plaintiffs’ pleading had no merit.  In this case the Court cannot, in absence of further enquiry, be certain about a similar outcome.  In our case there are concerns about the rights of class of persons who are incarcerated and for whom medical issues arise and who have a right to an adequate and appropriate diet.  Arguably this raises public interest factors.  As noted in Taylor v AG:

[36]      In Sugrue Blanchard J thought that, although on a given case a claim for damages may be struck out on the limitation grounds, a prayer for a declaration for breach of a guaranteed right may survive in appropriate circumstances.

[71]     As Mr Minchin submits the position of Mr Williams can be contrasted with that of the plaintiff in Sugrue who ran a sizeable commercial hunting operation and his claim was to recover costs of damage to a helicopter that had been seized as part of an investigation into illegal hunting.  In this case Mr Williams’ claims have been brought on the basis of breaches of statutory duty, and not on the basis of breach of bodily injury.

[72]     Consideration of claims by the defendants that the NZBORA provides limited assistance, and that there is an unavailability of recourse to regulatory legislation of a

kind in the Corrections Act, need to be measured by what was said by the Court of

Appeal in Vogel:

[77]      Our  conclusions  that  there  was  a  breach  of  s  23(5)  means  that different considerations must be taken into account.  In Taunoa the Supreme Court confirmed that damages for breaches of the Act should be redressed by the provision of remedies that are effective, appropriate and proportionate.  It was said that the remedy should have the purpose of vindicating the right breached, deterring the relevant authorities from future rights breaches and denouncing the conduct so as to mark society’s disapproval of the breach.

Conclusions

[73]     The Court is unable to be certain that there are not elements of Mr Williams’ complaints which are not barred by the Accident Compensation Act.  Nor in respect of those complaints which appear to be subject to the Limitation Act 1950, can the Court be certain they cannot survive as claims for alleged breaches of statutory duty.

[74]     In this case the Court cannot conclude that any pleaded causes of action cannot  succeed.    Issues  of  fact  need  further  enquiry.    In  that  outcome  issues addressing rights of action pursuant to the NZBORA or indeed even the Corrections Act can be properly reviewed.

[75]     If a case is clearly statute barred  so that it can properly be regarded  as frivolous, vexatious or an abuse of process then it ought to be struck out.  At this time and in this proceeding, the Court does not consider that outcome has been reached.

Judgment

[76]     The strike out application is dismissed.

[77]     Costs will be fixed on a category 2B basis and payable by the defendants unless counsel wish to argue that costs be fixed on some other basis.  In that latter
regard, any submissions are to be filed and served by 31 January 2014.

Associate Judge Christiansen