Region: Oceania
Year: 2011
Court: The Supreme Court of the Australian Capital Territory
Health Topics: Chronic and noncommunicable diseases, Prisons, Tobacco
Human Rights: Freedom from torture and cruel, inhuman or degrading treatment, Right to a clean environment, Right to liberty and security of person
Tags: Asthma, Degrading treatment, Humiliating treatment, Imprisonment, Passive smoking, Prison conditions, Pulmonary diseases, Respiratory diseases, Second-hand smoke, Smoking
The plaintiff in this case was convicted of murder and sentenced to life imprisonment. He was transferred to the Alexander Maconochie Centre (AMC) to serve his sentence. His concern with the centre was three fold. First he wanted an order preventing two officers at the AMC from dealing with him as their treatment (usage of foul and belittling language) was in breach of the Human Rights Act; second he wanted an appropriate case management plan in relation to providing him appropriate full-time work: he stated that he was given no work except fo building bird traps and was given only one student to tutor in English and finally he sought for orders preventing officers from allowing prisoners to smoke and damages for passive smoking.
The Court held that in respect of the first claim the plaintiff did not give the full context of the usage of words such as “murderer” by the officers. Examined in context, it was found out that the plaintiff had himself engaged in such conduct.
With respect to the second claim of a comprehensive management plan, the evidence on record shows that the comprehensive management plans were detailed documents taking into account the plaintiff’s physical and mental condition. It also takes into account his training and teaching program and his possible release.
With respect to the third claim, the Court held that the plaintiff did not adduce any evidence to prove any actual damage to the plaintiff or any consequences of passive smoking.
“On the evidence, I do not consider that the plaintiff should be awarded damages for being exposed to the smoke from other prisoners’ smoking, with the tolerance or support of certain officers of the defendant. I assume for the purposes of this step that, in the circumstances, the defendant is vicariously liable for their conduct and that, in all the circumstances, their conduct might render them also personally liable for any loss or damage suffered by the plaintiff. I do not need to make findings specifically on those two assumptions for present purposes. That is because it is not proved that their conduct has caused the plaintiff any loss or damage. He gave no real evidence of suffering from the consequences of passive smoking, other than to say that he is asthmatic. He gave no evidence about the extent of his exposure to passive smoking in the past, or indeed since he has been at the AMC. There was no medical evidence to indicate that he presently suffers from the consequences of passive smoking, or did so even temporarily in late 2009. I decline to find that, even if he was exposed to passive smoking whilst he was in the Management Unit in late 2009 and early 2010, he suffered any detriment as a result. I am not satisfied that he did so.” (para 87)