“He jests at scars that never felt a wound.”

Romeo’s words, or similar, might have occurred to the prisoners whose claims for compensation for mistreatment in prison were under the scrutiny of the New Zealand Supreme Court in Taunoa v Attorney General [2007] NZSC 70 (31 August 2007). The Court has decided the appropriate amounts of money to be paid by the state to several prisoners for the circumstances in which they had been subjected to breaches of their right to be treated with humanity and respect for their inherent dignity: s 23(5) New Zealand Bill of Rights Act 1990. In relation to one prisoner, the question was how much should be awarded for breach of his right not to be subjected to disproportionately severe treatment: s 9. The central problem was how to assess public law damages. These are discretionary. Thus they are in contrast to tortious damages which are awarded as of right upon proof of the cause of action, and which are compensatory, can be aggravated, and may be exemplary. Public law damages have a symbolic importance that is seen as diminishing their need to be high in magnitude.

Consequently, the amounts awarded were small (“moderate” was the adjective used by Blanchard J at para 265). I have previously noted here cases in other jurisdictions concerning compensation for breach of another right, the right to a fair hearing, where amounts were also small: see entries for 21 February 2005, 6 and 30 March 2005, 13 April 2005. Here, the Supreme Court reduced those of the awards that the Attorney General appealed.

One would never expect much agreement on amounts that the state should pay to its serious criminals who as a result of their difficult conduct in prison are subjected to efforts to control their behaviour, where those efforts go too far and breach basic rights. Here, the Chief Justice would have been the most generous. Blanchard and McGrath JJ agreed on a middle figure, and Tipping and Henry JJ would have awarded lesser amounts. The result was that the majority of the Court agreed that the amounts decided by Blanchard and McGrath JJ were the minimum that should be ordered, and those amounts became the outcome of this aspect of the case.