Police dog victim wins right to seek $40,000

An Auckland man says he was made to feel like a criminal when a police dog attacked him while he was suffering vomiting and diarrhoea in the bushes near a service station.

Matini Vaihu had an artery severed in his arm, lost two litres of blood and was in hospital for four days after what district court Judge Charles Blackie said was an "unprovoked, vicious and almost life-threatening attack".

The attack had been "compounded" by Mr Vaihu's humiliating and embarrassing circumstances.

The Henderson man was violently ill and had bought toilet paper and gone off into bushes near a New Lynn service station when the attack happened.

At the same time dog handler Constable Chris Taylor and police dog Willis were looking for four people seen kicking over signs.

Willis was on a chain of at least 5m as they went through the bush. Mr Taylor found Willis had seized Mr Vaihu's arm.

"He was found to be bleeding profusely and police realised he was an innocent member of the public," Judge Blackie said in his earlier decision.

The unjustified attack amounted to cruel, degrading and disproportionately severe treatment by the arm of the state, he said.

"Nothing could be less threatening than a person in the plaintiff's position vomiting or going to the toilet," the judge said.

Mr Vaihu had been granted $10,000 after a district court hearing for the attack which was said to breach section 9 of the Bill of Rights Act. However, the Attorney-General appealed and Justice Ellen France allowed it, saying it was difficult to say if the level of humiliation breached the "gross" level required.

She also drew a distinction between a police dog and a weapon.

Now Justice Mark Cooper has said the Court of Appeal should decide the case, turning on whether the actions of a police dog can be divorced from that of its handler.

Mr Vaihu, who wants $40,000 in exemplary damages, said he felt he had been treated like a criminal. Police neither visited him in hospital nor apologised after the attack on January 19, 2002.

He said the Police Complaints Authority had been a "waste of time" and now he had been forced to go through the courts in a drawn-out process.

Mr Vaihu's lawyer, Jeremy Sutton, in arguing for the case to go to the Court of Appeal, said Justice France placed too much emphasis on the fact that Mr Taylor did not intend the dog to attack Mr Vaihu and said it was not necessary to establish the state intended to harm him.

For the Crown, Jane Foster said Justice France had only said intent was highly relevant and added the facts of the case did not outweigh the cost and delay of a further appeal.

"In her Honour's view the level of humiliation that had resulted had not reached the 'gross' level required," Justice Cooper's decision reads.

"Nevertheless I have decided that this is a case where it is appropriate for leave [to appeal to the Court of Appeal] to be granted."

He said the question of whether a police dog's actions can be divorced from that of its handler bore further consideration.

"The question is one I think of legitimate public interest and the issues that Mr Sutton has raised depend, I think, on the extent to which a distinction between the police officer and dog is properly made."

A date for an Appeal Court hearing is yet to be set.