Matini Vaihu v The Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND
SC 3/2008
[2008] NZSC 19

BETWEENMATINI VAIHU

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Court:Blanchard, Tipping and McGrath JJ
Counsel:N Levy for Applicant

B J Keith for Respondent

Judgment:7 April 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       The applicant has sought leave to appeal against the dismissal by the High Court and the Court of Appeal of his claim for exemplary damages for breach of s 9 of the Bill of Rights Act 1990. He had the misfortune to be, quite innocently, in an area of bush where, at night, a police dog on a tracking lead was attempting to locate a suspected offender. The applicant was bitten on the arm by the police dog. The police officer who was handling the dog had given no instructions to the dog to seize the applicant.
[2]       The injury suffered by the applicant would have been quite minor but for the fact that he was undergoing dialysis treatment and had had an arteriovenous fistula surgically inserted in the arm which was bitten. As a result of the bite, the fistula was disturbed and the cephalic vein was ruptured. The injury was potentially life-threatening. Police officers took immediate steps to staunch the bleeding and obtain medical assistance for Mr Vaihu.
[3]       The applicant wishes to argue that s 9 was breached by the police because the handler was using the dog as a weapon and deliberately allowed it to bite Mr Vaihu. There are, however, findings in both Courts below that this was not so; that the dog had not been given any instructions to attack Mr Vaihu and bit him apparently in response to his own actions which it perceived as threatening. In essence, the biting was unintended by the dog handler.
[4]       The applicant also wishes to contend, on a more general or abstract basis, that the use of a police dog to search for suspected offenders, at least in relation to minor offences, will give rise to a breach of s 9. It seems to us that this proposed argument would be an extremely difficult proposition to establish, especially so when, as the Court of Appeal observed, no allegation has been pleaded of any systemic failure by the police in relation to the training or use of dogs. It seems doubtful in any event whether the unintentional infliction of an injury in circumstances of this kind, no matter that the injury proved to be serious for the particular person, could amount to a breach of s 9.
[5]       We are dismissing the appeal because it has no prospect of success and hence there has been no miscarriage of justice.
Solicitors:
Copeland Fitzpatrick, Otahuhu, for Applicant
Crown Law Office, Wellington

CaseChat Overview and Summary

The case of Matini Vaihu v The Attorney-General involved the applicant, Matini Vaihu, seeking leave to appeal against the dismissal of his claim for exemplary damages for breach of s 9 of the Bill of Rights Act 1990. Vaihu was injured by a police dog while he was in an area of bush where the dog was attempting to locate a suspected offender. The police officer handling the dog had not instructed it to attack Vaihu. The injury was serious for Vaihu, as he was undergoing dialysis treatment and had a surgically inserted arteriovenous fistula in the arm that was bitten, resulting in a life-threatening injury. Vaihu argued that the police breached s 9 by using the dog as a weapon and deliberately allowing it to bite him, but findings in both the High Court and the Court of Appeal found that this was not the case.

The legal issues in this case included whether the police breached s 9 of the Bill of Rights Act 1990 by using the dog as a weapon and allowing it to bite Vaihu, and whether the use of a police dog to search for suspected offenders, particularly in relation to minor offences, would give rise to a breach of s 9. The Court of Appeal held that the dog's biting of Vaihu was unintended by the dog handler and that Vaihu's proposed argument would be difficult to establish. Furthermore, the Court of Appeal found that the unintentional infliction of an injury in circumstances of this kind, no matter how serious the injury proved to be for the individual, could not amount to a breach of s 9.

The Supreme Court dismissed Vaihu's application for leave to appeal, holding that it had no prospect of success and therefore there had been no miscarriage of justice. The Supreme Court found that the use of a police dog to search for suspected offenders was not, in and of itself, a breach of s 9 of the Bill of Rights Act 1990. The Supreme Court also found that the dog handler did not deliberately allow the dog to bite Vaihu, and that the injury Vaihu suffered was unintended. Therefore, the Supreme Court held that Vaihu's claim for exemplary damages for breach of s 9 was without merit. The Supreme Court dismissed Vaihu's application for leave to appeal and confirmed the decisions of the High Court and the Court of Appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established