Hearing: 23 and 24 August 2004

Counsel: T Ellis, D La Hood and M Bott for Applicants
S France, D Boldt and B Keith for Respondents

Judgment: 2 September 2004

Solicitors:
N Dunning, Wellington, for Applicants
Crown Law Office, Wellington, for Respondents

[1] In my judgment of 7 April 2004 I made findings as to the liability of the respondents with regard to the nine applicants.
[2] I have now heard counsel on the question of damages. The second part of this judgment deals with the question of damages. This part of my judgment relates to a recall of the 7 April 2004 judgment pursuant to r 540(6) of the High Court Rules. I understand that neither counsel have sealed the judgment of 7 April and therefore I have jurisdiction to formally recall my judgment.
[3] The recall relates to two matters:
Mr Gunbie
[4] In paragraph 2 of my judgment of 7 April 2004 I recorded my understanding of what counsel had agreed. I accept that it was a misunderstanding. Paragraph 2 of my judgment of 7 April 2004 is to be deleted and the following paragraph substituted:
“Mr Gunbie began giving evidence in this case but because of his mental state was unable to continue. Counsel agreed the basis upon which I consider Mr Gunbie’s claim was:
(i) Individual complaints by him were not to be considered by me.
(ii) He was entitled to the benefit of any general declarations that applied with respect to all inmates on BMR. Mr Gunbie was on BMR from 16 April 2002 until 31 May 2002, a period of six and a half weeks.”
[5] The second and consequential correction is therefore to add to paragraph 362 as follows:
“9. Mr Gunbie.
Mr Gunbie is entitled to declarations in paragraph (b), (c) and (d) of Mr Taunoa’s declarations and to have adjourned the question of damages as referred to in paragraph (e) of Mr Taunoa’s remedies”.
[6] I attach the re-released judgment accordingly.
Damages
[7] This part of the judgment deals with what if any damages I should award the applicants arising from my judgment as to liability delivered on 7 April 2004. In my introduction to that judgment I said:
[1] This case involves challenges to the way in which the Department of Corrections treats some of the most difficult prison inmates in New Zealand. The challenge is to the lawfulness of a regime for “managing” these prisoners known variously as the Behaviour Modification and Behaviour Management Regime (BMR). The challenge alleges many of the conditions on BMR breached the Penal Institutions Regulations 2000. The applicants allege that the segregation system as it affected certain of the applicants was unlawful. The applicants seek orders in these proceedings declaring that BMR is unlawful and constitutes torture or lesser unlawful conduct alleging breaches of ss 9, 10 and 23 of the New Zealand Bill of Rights Act 1990. The proceedings also attack the lawfulness of the security classification system seeking declarations that it fails to comply with s17 of the Penal Institutions Act 1954.
[8] I set out below the summary of conclusions with respect to each BMR and non BMR segregated applicant from my 7 April judgment:
15. Summary of applicants’ case on BMR and non voluntary segregation
(i) Mr Taunoa
[307] I now return to the individual applicants on BMR and the applicants’ pleadings.
(1) Mr Taunoa’s segregation on BMR and the conditions on BMR were unlawful. I have concluded that Mr Taunoa’s segregation on BMR was unlawful being in breach of:
(a) s7(1A) Penal Institutions Act until September 2001
(b) s7(1A) Penal Institutions Act and Regulations as unlawfully reducing Mr Taunoa’s conditions throughout the time he was on BMR.
(2) I have concluded that because of (1)(a) and (1)(b) above and because of the conditions on BMR the respondents did breach s23(5) of the New Zealand Bill of Rights Act. Mr Taunoa suffered the most extensive range of breaches of the Penal Institutions Act and regulations compared with other applicants. The segregation from 1998 to 2001 was unlawful because it was not authorised by s7(1A). His loss of conditions suffered over the total time of his segregation of 700-plus days was extensive. Other breaches of regulations governing penal conditions fell on him most severely given the length of time he was on BMR.
(3) I have concluded that if Mr Taunoa’s segregation had been approved pursuant to s7(1A) and when it was approved pursuant to s7(1A) (after September 2001) it did not require any judicial authority for its imposition.
(4) BMR was not in breach of s17 of the Crimes Act 1962.
(5) The standard minimum rules do not have force of law in New Zealand.
(6) After September 2001 all segregation decisions required by s7(1C) were made lawfully by Mr McCartney.
(7) Regression. The applicants allege in their pleadings that regression to phase 1 on BMR from higher phases required “fresh approval in accordance with s7(1C) Penal Institutions Act”. No submissions in support of this proposition were made by the applicants. The pleadings do not make it clear whether the “fresh approval” required was from the Superintendent of the prison or the General Manager Prisons. I reject this proposition. If s7(1A) to (C) is properly complied with it authorises segregation of a prisoner. Segregation consists of either denial of contact with inmates or restriction of contact with inmates. Regression to phase 1 involves reduction in conditions from a restriction on contact with inmates at phases 2, 3 and 4 to denial in phase 1. Regression does not involve, however, any action outside that authorised by s7(1A) to (C). In those circumstances, no further approval would be required for a regression from phases 2, 3 and 4 to phase 1.
(8) The applicants’ allegations of breaches of statutory and other requirements have been dealt with in this judgment and have been included as relevant evidence in assessing whether the New Zealand Bill of Rights Act was breached.
(9) I have rejected the proposition that BMR amounted to medical and/or scientific experimentation in breach of s10 New Zealand Bill of Rights Act.
(10) The applicants allege that Mr Taunoa’s conditions on BMR breached his right to freedom of expression, freedom of peaceful assembly and freedom of association contrary to ss 14, 16 and 17 New Zealand Bill of Rights Act. The applicants made no submissions in support of these allegations in law or how the facts of this case relate to those rights. I therefore do not consider these allegations.
(11) The applicants allege Mr Taunoa’s detention on BMR breached his right not to be arbitrarily detained. The applicants made no submissions on the law or facts in relation to this submission. I make the obvious observation that Mr Taunoa was lawfully detained in prison by virtue of a sentence of imprisonment for murder. He was not, therefore, in my view arbitrarily detained. The applicants’ case has essentially been a challenge to the conditions on which Mr Taunoa has been detained rather than the lawfulness of his detention.
(12) Natural justice. I have considered how natural justice principles apply to Mr Taunoa and other inmates’ detention on BMR. I have concluded while there was an inadequate process for dealing with admission to BMR and some inadequacy in providing access to legal advice, these were typically a technical rather than a substantive failures. All inmates I am sure were aware of the conduct that resulted in their admission to BMR. However, clear written advice should have been given to facilitate, if desired, challenge. Inmates were not denied rights to consult lawyers nor however did Corrections facilitate access by early provision of reasons for decisions and ease of telephone access. I do not consider that when segregation is pursuant to s7(1A) to (C) that there is any obligation on the Superintendent or a General Manager Prisons to give the inmate an opportunity to make submissions on the proposed detention. I have rejected the proposition that habeas corpus should be available to inmates in such situations.
(13) Fettered decision making. I am satisfied for the reasons identified in paragraphs [41] to [50] of this judgment that the decision making process was not unlawfully fettered.
(14) Mr Taunoa alleged the decision to place him on BMR was challengeable as unreasonable or disproportionate. Assuming that the respondents complied with s7(1A) and the Regulations as to segregation and isolation of inmates then the decision to segregate Mr Taunoa was not unreasonable or disproportionate. There was, as I have detailed, ample reason to segregate him for good order and discipline reasons.
(15) The applicants allege that the punishment imposed on Mr Taunoa for disciplinary offences while he was on BMR was disproportionate, discriminatory and based on unlawfully obtained evidence while Mr Taunoa was detained. I have dealt with these submissions apart from the final aspect in paragraph [205] of this judgment. I have found individual punishments were neither unreasonable nor disproportionate to the disciplinary offences in a review sense. As to the admissibility issue raised in the pleadings the applicants made no submissions on this issue and I do not consider it.
(16) Prior to March 2002 Mr Taunoa’s security classification suffered from the same defects identified by the Court of Appeal in Bennett (supra). I have already concluded that Mr Taunoa’s maximum security classification up to this time was well deserved. As the Court observed in Bennett (supra) this was a technical defect. For reasons given I am satisfied the “new” operational standards of March 2002 complied with s17A of the Act.
(ii) Mr Robinson
[308] Mr Robinson was in a similar position to Mr Taunoa as regards allegations that his time in BMR was in breach of the New Zealand Bill of Rights Act. He was on BMR for 357 days. His segregation was also unlawful as unsanctioned by s7(1A) to (C) Penal Institutions Act. He suffered from essentially the same conditions as Mr Taunoa although for approximately half of the time on BMR. There are no additional comments relating to Mr Robinson’s position required. Mr Robinson’s confinement on BMR for the reasons I have given in relation to Mr Taunoa was in breach of s23(5) New Zealand Bill of Rights Act.
(iii) Mr Tofts
[309] Mr Tofts was in BMR for some 5½ months, (approximately 160 days) less than Mr Robinson and considerably less than Mr Taunoa. Mr Tofts’ segregation was approved pursuant to s7(1A). It occurred between April and July 2002. However, Corrections did not comply with provisions relating to isolation cells. They breached the Penal Institutions Regulations in the ways that I have specified. In addition, given Mr Tofts medical condition a proper medical examination would have revealed that Mr Tofts could not have been safely placed on BMR. This is an aggravating feature in Mr Tofts case. As to the remaining allegations relating to BMR nothing further is required beyond the observations relating to Mr Taunoa which apply equally to Mr Tofts. The observations relating to judicial authority and s17 of the Crimes Act in Mr Taunoa’s section on BMR are equally applicable to Mr Tofts’ situation.
[310] Mr Tofts also alleged improper conduct in relation to his period in non voluntary segregation in Rimutaka Prison. As to this:
(1) I have already concluded that segregation per se cannot be categorised as breaching the New Zealand Bill of Rights Act or international covenants. Nor do I consider the particular conditions imposed on Mr Kidman and Mr Tofts in Rimutaka Prison were in breach of the New Zealand Bill of Rights Act.
(2) Solitary confinement as punishment. I do not consider the analysis in paragraphs [51] to [68] of this judgment applies to the facts of this segregation. The evidence establishes that Mr Tofts and Mr Kidman were segregated in Rimutaka capital cells at the end of 2001 and into 2002. This occurred because these cells were the only cells suitable for maximum inmates at Rimutaka. Mr Tofts and Mr Kidman needed to stay at Rimutaka prison while their criminal cases were resolved. In that peculiar situation the applicants suffered no loss of conditions below that which they would ordinarily be entitled on maximum security. In the difficult situation at Rimutaka they were housed as best they could be.
(3) There was no evidence from Mr Tofts or Mr Kidman of a failure of medical officers to see them shortly after their reclassification as maximum or later. The applicants have therefore not established allegations of breaches of s6A Penal Institutions Act or the Corrections policy manual.
(4) Mr Tofts’ allegation that his solitary confinement was in breach of s27 and s23 New Zealand Bill of Rights Act cannot be sustained. When Tofts and Kidman were reassessed as maximum security there were good reasons for their placement in the capital cells at Rimutaka. This was the only accommodation available. It is probable their situation came within imprisonment in an isolation cell and the relevant regulations in the Penal Institutions Regulations needed to be complied with (see regs 147 to 157). Mr Tofts and Mr Kidman were in the capital cells because of their classification. They had a right of review of this classification and regular reconsideration. There could be no doubt they knew why they had been reclassified maximum, given the serious assault on the prison officer. And they knew why they were being accommodated in the capital cells in Rimutaka Prison.
(5) Maximum security classifications. I have dealt with this issue in paragraphs [285] to [295].
(iv) Mr Kidman
[311] Mr Kidman’s allegations and situation was mostly the same as Mr Tofts. He was in solitary confinement in Rimutaka in the same circumstances and at the same time as Mr Tofts. He was in BMR during the same period as Mr Tofts. The only distinguishing feature of the segregation is that Mr Kidman did not have the special vulnerability of Mr Tofts. However, I consider that Mr Kidman’s segregation on BMR, given the breaches identified as applying to him, was also in breach of s23(5). I have already rejected Mr Kidman’s allegation of excessive C&R by prison guards. The remaining allegations relating to Mr Kidman are the same as Mr Tofts and Mr Taunoa and my conclusions are also the same.
[9] I then went on to consider the non voluntary segregation of non BMR applicants. As to Mr Tofts and Mr Kidman I considered solitary confinement and said at paragraph 316:
My conclusion, therefore, is that while some solitary confinement regimes clearly could be objectionable in a human rights context, others will not be and will be for the legitimate control of difficult prisoners. So much will depend upon the individual facts of the individual case. I therefore reject the submission that as a general proposition any solitary confinement regime in New Zealand is unlawful as being in breach of the New Zealand Bill of Rights Act.
[10] I rejected Mr Kidman and Mr Tofts’ complaints about their solitary confinement. I rejected their complaints alleging inhumane or degrading treatment in the capital cells at Rimutaka Prison. I rejected allegations of breaches of s17 of the Crimes Act. I considered that Mr Tofts entitlement to see a medical officer was, however, breached. I made no declarations of breaches of the New Zealand Bill of Rights Act with respect to either Mr Kidman, Mr Rimene or Mr Tofts with respect to the time outside of BMR.
[11] I made no declarations of breaches of the New Zealand Bill of Rights Act with respect to Mr Karaitiana, Mr Rimene or Ms Tui. I deal with these applicants immediately. I found that nothing that happened to these inmates covered by these proceedings justified the making of a declaration that a right under the New Zealand Bill of Rights Act had been breached. The applicants submit, however, that given my judgment identified breaches of the Penal Institutions Act and regulations relating to such things as medical and superintendent visits or the late signing of the segregation approvals that compensation can be awarded.
[12] I accept the Crown submissions that given my judgment of 7 April when I refused to give declarations that the New Zealand Bill of Rights Act had been breached with respect to these applicants then logically no award of compensation is possible or appropriate. In refusing a declaration I was not satisfied a breach of the Act had occurred. The applicants’ action for compensation was brought on the proposition that a breach had occurred, thus, only breach of the New Zealand Bill of Rights Act can be considered. In P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 at 236 the Court of Appeal said:
It was this Court in Baigent which recognised the need for an effective remedy and itself provided for a monetary remedy to be available in vindication of a breach of a right in appropriate circumstances. The availability of the remedy is dependent upon proof of a breach of the Bill of Rights . . .
[13] I therefore make no compensation orders for Mr Karaitiana, Rimene or Ms Tui or to other applicants for non BMR imprisonment.
Compensation for those who have declarations of breaches of the New Zealand Bill of Rights Act
[14] The Court of Appeal in Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 dealt with compensation for Bill of Rights breach, firstly in considering remedy Casey J at p692 said:
I am satisfied that the purpose and intention of the Bill of Rights Act is that there be an adequate public law remedy for infringement obtainable through the Courts . . .
And in considering quantum of monetary awards Cooke P said at p678:
As to the level of compensation, it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches are also proper considerations; but extravagant awards are to be avoided.
And Hardie Boys J at p703:
In the assessment of the compensation, the emphasis must be on the compensatory and not the punitive element. The objective is to affirm the right, not punish the transgressor. I agree with the observations of the President as to quantum . . .
[15] It is well established that the decision to award compensation in a public law case such as this is discretionary (see P F Sugrue Ltd v Attorney-General [2004] 1 NZLR 207; Manga v Attorney-General [2000] 2 NZLR 65. Public law compensation is not the same as common law damages which are generally seen as a right which flows from proof of fault and proof of damage. In this case I have given declarations that certain segregation of prisoners were unlawful, failures to provide certain conditions were unlawful, some security classification systems as they related to individual prisoners were unlawful and detention on BMR as it operated was in breach of s23(5) of the New Zealand Bill of Rights Act. Therefore, Messrs Taunoa, Robinson, Tofts, Kidman and Gunbie were each entitled to declarations that their detention on BMR was breach of s23(5) of the New Zealand Bill of Rights Act. These declarations are not simply hollow words as a prerequisite for monetary compensation. The declarations matter at a number of levels. They enable an individual plaintiff to say what happened to me should not have happened. It is an “official” declaration that they should not have been treated in the way that they were. It means Corrections must stop treating these prisoners unlawfully. This is to the prisoner’s advantage. Counsel for the respondents have advised me that that has already happened. It informs Corrections and ensures the errors made will not be repeated in the future with other inmates. And, in a broader context, it ensures there is oversight of important public institutions such as prisons. It reminds us that those members of society who are in prison are entitled to minimum standards of treatment.
[16] The Court stressed in Baigent’s case (supra) the quantum of any damages is compensatory and not punishment of the transgressor. In Dunlea v Attorney-General [2000] 3 NZLR 136 the Court of Appeal considered whether compensation was appropriately payable regardless of damage. While not deciding the question, the majority said in considering whether compensation of a Bill of Rights breach was different than fixing damages for tort on the same facts and considering the international position said:
[38] Were we to take the matter further, we consider that there are strong reasons for not adopting a different approach. The first reason is that in the great range of cases where a claim of a breach of the Bill of Rights is made there will also be a claim in tort. So, the present case is not one in which torts were not also established (as in Attorney-General v Upton (1998) 5 HRNZ 54) or a tortious remedy was defeated by statutory immunities (as in Baigent’s Case) with the consequence that, if monetary relief were to be awarded, only the Bill of Rights breach could be invoked. On the contrary, essentially the same facts lie behind the twin rulings (which are significant in themselves) that the state through its officers has acted in breach of the rights of the plaintiffs, rights long protected by tortious remedies and now affirmed, along with other human rights and fundamental freedoms, in the Bill of Rights.
[39] A second reason is that an examination of the law and practice of other jurisdictions would, it appears, cast doubt on a different approach. An extensive survey carried out for the Law Commission by Paul Rishworth and Grant Huscroft in 1995 – 1996 of 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 for the Protection of Human Rights and Fundamental Freedoms led to these conclusions:
“B1 . . . 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.
. . .
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.” (Law Commission, Crown Liability and Judicial Immunity at pp 70 and 72.)
[40] The United States, Canadian and Irish positions were summarised as follows:
“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 reference is to Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388.]
B3 The survey concludes [on the US material]:
• 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 12000 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 the thirteen years following the passage of the [Canadian] 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 $10000 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.”
[41] The third reason for doubting that a different approach should be adopted reinforces the point made in para B10 of the Law Commission summary. The common law Courts have long affirmed that breaches of important rights by officers of the state are to be marked by appropriate awards of damages. A classic instance is the £300 awarded in 1765 by a jury and upheld by Lord Camden CJ in Entick v Carrington (1765) 19 State Tr 1030 against King’s Messengers for breaking and entering the plaintiff’s house and seizing his papers:
“Papers are the owner’s . . . dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; . . . where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect” (p 1066).
[42] That statement indicates the importance of the assessment of the particular circumstances of the unlawful act including the value of the right infringed, both generally and to the individual. A central feature of that great case – the taking away by the King’s Messengers of John Entick’s private papers in search of evidence of a seditious libel – is of course not present here in this case, but three of the appellants do properly assert the significant matter, mentioned earlier, of the invasion of the privacy of their residence.
[17] The respondents suggest that an appropriate approach here is as follows:
26.1 What remedy, or combination of remedies, will provide sufficient vindication to the applicants for the proven breaches of their rights?
26.2 If the Court decides that an award of public law compensation is appropriate, what sum will return the applicants to the position in which they would have found themselves had the Department managed their ongoing bad behaviour without placing them on BMR?
[Respondents’ submissions p13, 19 August 2004]
This seems a sensible approach here.
[18] Without, again, detailing the failures which gave rise to my conclusions, the finding that these applicants, while on BMR, were not treated with humanity or with the inherent dignity due every person inevitably means effects were suffered by individual applicants. Thus, in a case such as this, where the breach has ultimately affected the daily lives of some of the applicants in significant ways a declaration alone is not, in my view, adequate relief. I am satisfied, therefore as a general proposition that an award of compensation for Bill of Rights breaches here is appropriate.
[19] Settling a figure for compensation is not, however, an easy task in this case. Most prisoner compensation cases to be decided by the Courts (here and internationally) are essentially false imprisonment cases, for example Manga v Attorney-General (supra). Compensation for those who should be free but are unlawfully in prison is obviously on another scale from this case.
[20] If payment of a sum of money for a Bill of Rights breach is compensation to the victim then in this case it is important to assess the extent of the wrong and the harm done. In a continuum of payments, at one end is compensation for wrongful imprisonment. At the other end is compensation where there is lawful imprisonment but as here conditions in prison which fell below the standard to such a degree that they breached s23(5) of the New Zealand Bill of Rights Act. On that measure, damages in this case are toward the conservative end of the continuum. In that category (of those lawfully in prisons but treated unlawfully) individual cases dictate varying awards. This is not a case of deliberate violence towards any prisoners and therefore no direct physical harm. On the other hand the unlawful loss of entitlements against the minimum standard was widespread and for some inmates extended over lengthy periods of time. All prisoners had behaved in ways that justified at times forms of segregation and/or isolation. As I have recounted, however, inmates were improperly deprived of any effective challenge to their segregation and improperly lost entitlements. And inmates’ conditions fell below minimum standards (see paragraphs 276 and beyond in my judgment of 7 April 2004). These losses were serious to the inmates.
[21] In this case the following factors are relevant:
(i) Some prisoners would have been and could have been legitimately segregated given their behaviour and the proper comparison is between that and the conditions they suffered on unlawful segregation.
(ii) The time they spent on unlawful segregation and the reasons for continuing their segregation, including the conduct of individual inmates.
(iii) Any proven harm to them either physically or psychologically.
(iv) Any loss of conditions in an already deprived environment such as imprisonment may fall more harshly on individuals.
[22] Inmates spent the following time in segregation. I have rounded off the time and months for the longer serving prisoners: Mr Taunoa, 26 months; Mr Robinson, 12 months; Mr Kidman and Mr Tofts, three and a half months; Mr Gunbie, six and a half weeks.
Mr Taunoa
[23] Mr Taunoa spent most of the time on BMR. However, I take into account in part the reason for this was his own conduct. Counsel for Mr Taunoa submits he was essentially protesting (as it turned out justifiably) his conditions and therefore his conduct should not be held against him. I accept that part of the cause of his difficult behaviour could be put down to his protests at his conditions. However, much of this misconduct, for example, his stand-over tactics in relation to other inmates, cannot be explained in this way. I agree with the Crown that Mr Taunoa’s time on the programme is properly discounted to reflect this aspect.
[24] I note that Mr Taunoa claimed that he had suffered significant weight loss while on BMR. The evidence clearly established he did not. On the contrary, he gained weight. As to Mr Taunoa’s mental health, I concluded as follows:
I consider Dr Chaplow’s conservative approach is the appropriate one with regard to Mr Taunoa. Dr Chaplow’s conclusions were that Mr Taunoa probably had antisocial personality and possibly social interpersonal maladaption. Dr Chaplow concluded that BMR possibly exaggerated and aggravated these disabilities. He was not convinced, and nor am I, that Mr Taunoa suffered from post traumatic stress disorder.
[Paragraph 237]
[25] It is clear that Mr Taunoa suffered the most extreme range of breaches of the Act. Mr Taunoa was regressed on BMR, however, I am satisfied that the regressions arose in part from his misconduct. There was ample reason during the course of Mr Taunoa’s time on BMR to segregate him for good order and discipline reasons.
Mr Robinson
[26] In one sense Mr Robinson’s admission to and time on BMR could be seen as a typical case. His conduct prior to his admission on BMR justified the form of segregation. While on BMR he behaved well and worked his way through the programme until released. He spent somewhere near 12 months on BMR, however if he had been assessed as an administratively segregated prisoner, his segregation could not have lasted anything like that period of time. On that basis therefore I consider Mr Robinson should have been returned to mainstream prison well before the 12 months had expired. His time on segregation must be seen in this light also. As to Mr Robinson’s mental health, I recorded in summary as follows:
All report writers record psychological damage to Mr Robinson at an early age with resulting antisocial personality. No connection between BMR and the onset or aggravation of any Mr Robinson’s psychological disabilities have been established on the evidence.
[Paragraph 244]
General comments on Mr Taunoa and Mr Robinson
[27] I accept as a general proposition the regime under which, especially, Mr Taunoa and Mr Robinson were imprisoned for considerable periods must inevitably have taken a toll on their health. A combination of isolation, poor conditions and length of stay would have affected the strongest person. However, identifying cause and effect in this situation is all but impossible. I am prepared to accept, having heard the evidence and understood, I hope, how the inmates lived, that harm inevitably occurred to them if only the modest exacerbation of existing disabilities.
Mr Kidman
[28] Mr Kidman’s incarceration and segregation was well justified by his conduct. He spent 94 days in BMR. I said at paragraph 243 of my judgment of 7 April:
My conclusion is, therefore, that there is no evidence to establish Mr Kidman suffers from any mental disability beyond a personality disorder that seems to have existed well before his imprisonment. There is no evidence that BMR has affected his mental health.
[Paragraph 243]
[29] I take into account in reaching a conclusion as to compensation that Mr Kidman did not spend a lengthy period on BMR.
Mr Tofts
[30] Mr Tofts also spent 3 months on BMR and his incarceration on BMR was eminently justified by his conduct. Mr Tofts, however, was highly vulnerable psychologically. I set out below paragraphs 245, 246, 247 and 250 as summarising my conclusions with respect to Mr Tofts:
(iv) Mr Tofts
[245] Mr Tofts was the most difficult inmate to assess in terms of damage arising from mental illness. He was the most vulnerable inmate both physically and psychologically of the applicants. He had the most serious disabilities when he commenced BMR. He received the most regular treatment from psychologists and psychiatrists while on BMR.
[246] When Mr Tofts arrived at Auckland Prison he responded to a question about current contact with a psychiatrist by advising that he was not currently seeing such a person. However Corrections knew he had been seeing psychological services and was on medication. He was referred to the psychiatric liaison nurse who in turn referred him for review to Psychiatric Services. Dr Seth saw him on 23 April more than three weeks after he had arrived. During this time Mr Tofts had been placed on BMR in an isolation cell despite concern about his mental state. Dr Seth’s report summary under “Impression” said:
No evidence of any major psychiatric disorder although at times of stress he may well exhibit some symptoms of depression and impulse control. However, the mainstay of his treatment appears to be with the neurologist who previously described him as suffering from pseudo seizures. His management is mainly medical and I am not sure that I would have anything further to offer him.
[247] Dr Seth arranged for weekly counselling sessions with a psychologist while Mr Tofts was in prison. I consider that Corrections can properly be criticised for their decision to admit Mr Tofts to BMR. He was evidently physically and mentally vulnerable. He had a number of problems which obviously meant he would have difficulty coping with BMR. An important part of the way he had been taught to cope with his mental and physical disabilities was through distraction. The removal of access to a television posed considerable difficulties for this strategy. It is not clear from Dr Seth’s report whether he was ever aware of the BMR regime and its conditions. Dr Seth was not asked whether harm could be done to Mr Tofts as a result of placing him in BMR. The Crown’s contention was that no-one who examined Mr Tofts “signalled that his placement may be inappropriate”. As I have observed, that is probably because no-one was asked the question. And in such a situation it is reasonable to expect Corrections to take precautions against harm to an inmate. Dr Seth had signalled possible existing PTSD in his report. There was no follow-up of this by Corrections.
. . .
[250] Dr Chaplow concluded that given most of Mr Tofts’ symptoms post-BMR were present pre-BMR, BMR was unlikely to have caused directly any of his psychiatric problems. Dr Chaplow accepted that there was possible aggravation of Mr Tofts’ pre-existing conditions. Essentially, therefore, Dr Crawshaw and Dr Chaplow agreed on aggravation of existing conditions although perhaps differed as to the degree of effect of BMR on Mr Tofts. I accept, therefore, that:
(i) Mr Tofts should have been assessed in detail pre-BMR based on his existing physical and mental vulnerability.
(ii) Given these existing vulnerabilities he should not have been placed on BMR. To assess this question required an intimate knowledge of both the conditions on BMR and Mr Tofts’ problems. No medical officer had this breadth of information.
(iii) Mr Tofts’ existing psychiatric disabilities were aggravated by his time on BMR.
[31] I wish to stress again that a proper assessment by the prison, which should have been undertaken, would have meant Mr Tofts would not have been placed on BMR. It is clear from all the psychiatric and psychological evidence that he would not cope with such a restricted regime. I accept, as I have said, that his existing psychiatric disabilities which were severe were aggravated by his time on BMR.
Mr Gunbie
[32] As to Mr Gunbie, he spent 6½ weeks on BMR. No particular damage is identified.
[33] Assessing quantum for Bill of Rights compensation owes much to intuition. There is no formula to apply other than a close consideration of individual facts. Regard to relativity must also be had. I have identified the essence of unlawfulness in this case. If Hammond J’s assessment of $10,000 per month for unlawful imprisonment in Manga v Attorney-General (supra) is taken as some form of guide then compensation in this case must be of a significantly lesser sum. Here the prisoners were legitimately imprisoned and the proven complaint was in unlawful conditions. While inevitably, in part arbitrary, I consider a sum of $2,500 per month does set a reasonable benchmark for general loss of conditions suffered by the inmates. I now turn to consider each inmate in turn.
Mr Taunoa
[34] Mr Taunoa was on the BMR programme for 26 months. As I have recounted, part of the cause for his long service was his own highly disruptive behaviour. I take into account a modest part of the cause of this was his protest at the regime’s unlawfulness, but a large part was his responsibility. I am satisfied that Mr Taunoa would have been in some form of isolation throughout the time and for a part subject to punishment regimes that may have had similar legitimate conditions to BMR. On the other hand, Mr Taunoa suffered most severely from, for example, the unlawful strip searches which were aggravating features of the regime. I accept that he did suffer from some aggravation of his existing mental health problems. On that basis I assess his compensation at $55,000.
Mr Robinson
[35] He was on BMR for 12 months. He behaved appropriately throughout his time on BMR. In any other context there would have been little or no justification for his continued segregation after the first month or two. There is no reason why he should not have been returned to mainstream prison after the first couple of months of segregation. This is in contrast with Mr Taunoa’s situation. This was an aggravating feature. I therefore fix Mr Robinson’s compensation at $40,000.
Mr Kidman
[36] There is no doubt Mr Kidman’s misconduct justified entry into some form of isolation or a segregation regime. He had been seriously violent in prison. His 94 days in segregation could have been justified given his previous misconduct. I award compensation to Mr Kidman of $8,000.
Mr Tofts
[37] He was in a similar position with regard to Mr Kidman in that he spent three months in the BMR regime. His conduct prior to his admission eminently justified some form of segregation or isolation. However, the failure to properly assess his psychiatric condition when it was known and the clear harm he established as a result of his time on BMR mean that he is in a different category than Mr Kidman. I consider that the failure to follow up Mr Tofts’ psychiatric vulnerability adequately and the failure to recognised that placing him on such a strict regime would cause damage are seriously aggravating features. I award him compensation of $25,000.
Mr Gunbie
[38] Little more than a nominal award of damages is required with regard to Mr Gunbie to simply mark the fact that some form of monetary compensation, even for a short period on such a regime is appropriate. I make an award of $2,000 in his favour.
Mr Paku
[39] I made a finding that Mr Paku’s detention in non voluntary segregation between 2 May and 14 June was unlawful. The circumstances were identified at paragraph 355 of my judgment as follows:
[355] There were, however, other difficulties with Mr Paku’s segregation. Mr Paku’s first period of segregation began on 19 April authorised pursuant to s7(1C). Any approval for continued detention was therefore required by 2 May. Approval from Head Office for further segregation in fact was given on 3 May. When this error became known in mid June, Mr Smith, the prison manager, attempted to retrospectively “fix” the error. It was at this stage or shortly afterwards that Mr Paku was transferred to Manawatu Prison and taken out of segregation. It is clear that Mr Paku’s segregation from 2 May until 14 June 2002 was unlawful. As s7(1C) provides, directions for segregation shall not remain in force for more than 14 days unless the Secretary authorises continuance. When Corrections recognised the error they should have immediately released Mr Paku. The attempt to retrospectively fix the error was wrong.
[40] I did not find any Bill of Rights breaches here. This was an administrative error. I found the segregation was justified but the authorisation inadequate. Mr Paku claimed only public law remedies alleging a breach of the New Zealand Bill of Rights Act. I do not consider beyond my finding that Mr Paku’s segregation for the period identified was unlawful that any breach of the New Zealand Bill of Rights Act occurred or that any compensation was properly payable to him.
Costs
[41] The applicants seek costs. They do so effectively seeking indemnity costs although the circumstances are somewhat unusual. As a matter of principle I accept that the applicants are entitled to costs although potentially reduced to reflect the fact that they did not succeed with respect to all applicants or all causes of action. The applicants are legally aided and the total costs incurred and paid by the Legal Services Board are $358,000. This the applicant says is approximately one-third to one-half of costs based on Schedule 3 High Court Rules depending upon whether a Category 2 or Category 3 classification is given.
[42] The respondents submit that any costs award should be reduced by at least 25% to reflect the fact that not all applicants succeeded and those applicants who did succeed only succeeded in some parts of their causes of action. The respondents submit that the sum of $358,000 being the applicants actual costs should therefore be reduced by a factor of 25%.
[43] A resolution of the different views of costs here requires a principled approach. I consider the proper approach here is to identify the proper category and band, calculate the total costs payable on that basis, reduce them by an appropriate percentage, in this case to reflect partial success only, and then compare this figure with the total fees payable to counsel from the Legal Services Board. If the scale fees exceed the Legal Services payment then Rule 47(f) applies. This provides:
47 Principles applying to determination of costs
The following general principles apply to the determination of costs:
(f) An award of costs should not exceed the costs incurred by the party claiming costs:
[44] In this case it is not necessary to undertake an exact calculation of the scheduled fees. I am satisfied that these proceedings, given the factual complexity, the client challenges and the legal issues justified Category 3C for lead counsel. The 50% reduction for a justified second and third counsel would therefore apply. There are 40 days of hearing time and therefore in terms of Schedule 3, 80 days of preparation time allowed. The 120 days at $2,150 per day for lead counsel equals costs of $258,000. Two additional counsel at 50% is a further $258,000. Without any allowance beyond trial preparation and trial, the costs total $516,000. Even accepting the respondents’ suggested one-quarter deduction ($129,000) the net figure of $387,000 is still more than the $358,000 paid by Legal Aid. I stress the total costs in terms of 3C would of course be considerably more than this. It is clear, therefore, that calculated on this basis the costs award in favour of the applicants would be the total of $358,000 paid by Legal Services.
[45] I reject the Crown submission that I should deduct the one-quarter from the fees actually paid by Legal Services. It is accepted principle that the actual cost incurred by a successful party are not by themselves relevant in fixing costs unless indemnity costs are sought (Rule 48C) (see Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 55). Thus what costs the party has actually incurred is not the starting point. The starting point is to identify the appropriate band and category. Once this is done, any reduction for partial success can be factored in. It is only then that Rule 47(f) comes into play. Is the proposed costs award greater than actually incurred? If the answer is yes, then the amount actually incurred will be the amount of costs awarded. That is the position here.
[46] I therefore award costs in the sum of $358,000 plus any disbursements outside of this sum as approved by the Registrar. I note for the information of the Legal Services Board that a portion of the $360,000 costs arose from the prosecution of the unsuccessful applicant’s case.

“Ronald Young J”

Signed at 3.00 pm this 2nd day of September 2004

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