Minister of Correctional Services v Lee (316/11)  ZASCA 23 (23 March 2012) Summary
In this case the Supreme Court of Appeal in South Africa ruled that while prison authorities failed to take reasonable measures to prevent the contraction of tuberculosis in custody, causation was not made out and therefore the State was not liable.
Lee was arrested in November 1999 and remained in prison for a total period of four years before being acquitted and permanently released in September 2004. During this time Lee was diagnosed with pulmonary tuberculosis. Lee sought damages against the Minister of Correctional Services, claiming the authorities failed to have “reasonably adequate precautions against contagion” of tuberculosis.
Pulmonary tuberculosis is transmitted by inhalation. Once inhaled, the disease can either be destroyed by the host, remain dormant for numerous years, or immediately become active. The active stage is necessary for transmission. Active disease presents itself as shortness of breath, persistent coughing, loss of weight and appetite, chest pain, and night sweats and fever. Testing for tuberculosis can sometimes result in a false negative result.
Lee experienced coughing and weight loss towards the middle of 2003. He underwent two tuberculosis tests. Both results were negative. In May 2003 Lee was hospitalised for the removal of a hernia. X-rays in preparation for the operation revealed the presence of tuberculosis.
Tuberculosis can be managed fairly easily through proper screening and diagnosis, isolation of the carrier for the period they are contagious (usually two weeks after the commencement of treatment), and antibiotic treatment. Nugent JA recognised four events which reveal that the ordinary procedure adopted by the prison did not satisfactorily meet these protocols. Firstly, the prison’s practice of superficially screening the prisoners upon their arrival, followed by their placement in a communal cell regardless of a positive tuberculosis result. Secondly, upon the authorities gaining knowledge of Lee’s tuberculosis, he was placed in a communal hospital cell. Thirdly, upon being returned to the prison after hospitalisation, Lee was again placed in a cell with one or at times two other prisoners notwithstanding that he would remain contagious for a further two weeks. Fourthly, Lee was sent to and from court in a communal police van, likely to be filled with new prisoners, during his time of contagion. These events display the prison’s failure to adequately follow a reasonable tuberculosis management system.
Human rights issues
Section 12(1) of the Correctional Services Act 1998 (South Africa) obliges prison authorities to “provide, within its available resources, adequate health care services, based on the principles of primary care, in order to allow every inmate to lead a healthy life.” Section 35(2)(e) of the South African Constitution also provides an inherent right to all prisoners that ensure “conditions of detention that are consistent with human dignity.” These provisions are consistent with the rights set out in articles 7 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and 10 (all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person) of the ICCPR.
Nugent JA found that the conditions in South African prisons did not uphold these human rights by negligently omitting to put in place reasonable measures to protect prisoners from disease and infection.
The Minister argued that “public duties should not translate into a private action for damages when they are not fulfilled.” The Minister stated that to do so would impose an “inordinate burden” on the state, it would expose the state to indeterminate liability and that there are other avenues for which prisoners to vindicate their rights. Nugent JA discredited each of these arguments. His Honour held that where a “state takes away the autonomy of an individual by imprisonment” it then adopts the responsibility for the physical welfare of the prisoner. His Honour found that the “state has important responsibilities to its citizens. It might not always be able to fulfil them but it ought to properly recognise where it has failed.”
Nugent JA stated that three elements of a negligence claim are well established: “a legal duty in the circumstances to conform to the standard of the reasonable person, conduct that falls short of that standard, and loss consequent upon that conduct.” In this case, Nugent JA found that the first two elements are clearly present, as “prison authorities failed to maintain an adequate system for management of the disease and in that respect they were negligent.” Lee’s claim failed on the third point: the matter of causation.
His Honour questioned whether Lee would have still been infected if the prison had imposed “reasonable management of the disease.” He found that Lee would. This is a two stage enquiry of fact: what would a reasonable person have done to avoid the occurrence of harm and whether the harm would be avoided if that were done?
Nugent JA discussed in great detail what would be considered reasonable management of the disease. His Honour reiterated that while the failure of the authorities to meet a reasonable standard deems them negligent, that alone does not determine whether the harm was caused by their omission. In addition, what the prison authorities ought to have done must be established.
Because the prison was large, congested, and had limited access to resources, Nugent JA suggested that it would be unreasonable to expect prison authorities to isolate Lee immediately after he reported his symptoms, especially after receiving a negative tuberculosis test result. His Honour suggested as an example that if Lee’s cellmate had contracted the disease after contact with Lee during this time, it would be difficult to attribute it to the fault of the authorities. Nugent JA held that this is because “whatever management strategies might be put in place there will always be a risk of contagion if only because diagnosis is necessarily a precursor to intervention, and the disease might often be diagnosed only well after the prisoner has become contagious.”
Relevance to the Victorian Charter
Section 10(a) (which mirrors article 7 of the ICCPR) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires that a “person must not be … treated or punished in a cruel, inhuman or degrading way”. Section 22(1) (which mirrors article 10 of the ICCPR) also provides that “persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”. The decision in this case suggests that the threshold to find that a negligent omission amounts to inhuman or degrading treatment is high. While a negligent act which results in such treatment may be easier to establish, this case suggests that where an authority omits to take reasonable measures to ensure a prisoner is treated with humanity, this may not be enough to prove liability for a breach of human rights.
The decision is available online at: http://www.saflii.org/za/cases/ZASCA/2012/23.html
Nicole Parlee is a Law Graduate with the King & Wood Mallesons Human Rights Law Group.