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Bau v Bine [2016] PGNC 137; N6268 (6 May 2016)

N6268

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS (HR) NO 28 OF 2012


BILLY BAU AS FATHER AND CUSTOMARY REPRESENTATIVE OF RONNIE BAU (DECEASED)
Plaintiff


V


MATHEW BINE, BOMANA GAOL COMMANDER
First Defendant


RICHARD SIKANI,
COMMISSIONER OF THE CORRECTIONAL SERVICE
Second Defendant


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Cannings J
2015: 27th May & 1st July

2016: 6th May


TORTS – NEGLIGENCE – whether Gaol Commander and/or Commissioner of Correctional Service owe duty of care to prisoners – whether defendants were negligent – whether negligent failure to accord proper medical care led to death of prisoner – whether death was a type of injury not too remote.


HUMAN RIGHTS – enforcement – protection from inhuman treatment – right to full protection of the law – right of detainees to be treated with humanity and respect for inherent dignity of the human person.


Fact:
The plaintiff’s son was a prisoner, detained at a correctional institution (a gaol). His son became ill while in custody, was taken to hospital and died two weeks after admission to hospital. The plaintiff claims that correctional officers at the jail failed to take his son to hospital in a timely manner, despite it being obvious that he was very ill and needed urgent treatment. He commenced proceedings against three defendants – the Gaol Commander, the Commissioner of the Correctional Service and the State – claiming damages for negligence and breaches of human rights: breach of his son’s rights to freedom from inhuman treatment (under Section 36(1) of the Constitution) and to the full protection of the law, in particular the right to be treated with humanity and with respect for the inherent dignity of the human person (under Sections 37(1) and 37(17) of the Constitution). The defendants denied liability. A trial on liability was conducted.


Held:


(1) The plaintiff adduced credible evidence that his son contracted tuberculosis and meningitis while he was imprisoned, and that he was very ill, that his son’s requests to be taken to hospital were declined, that by the time his son was admitted to hospital he was extremely ill and that he died of respiratory failure caused by TB and meningitis. The defendants failed to adduce any evidence. The court made findings of fact accordingly.

(2) The Gaol Commander and the Commissioner of the Correctional Service, and correctional officers at the correctional institution, owed a duty of care to all detainees, including the plaintiff’s son, to take reasonable steps to operate the correctional institution in such a way as to preserve the health and welfare of the detainees. They breached that duty by failing to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment and by the negligent failure of correctional officers to secure such treatment for the plaintiff’s son. Those negligent omissions caused the death of the plaintiff’s son which was a type of injury that was reasonably foreseeable and not too remote. The plaintiff established the tort of negligence against the first and second defendants.

(3) The plaintiff’s son had a right under Section 36(1) of the Constitution not to be submitted to torture or to treatment or punishment that was cruel, inhuman or inconsistent with respect for the inherent dignity of the human person. This right affords protection against deliberate acts or omissions intended to inflict torture or cruel, inhuman or undignified punishment or treatment. No breach of this right was proven.

(4) The plaintiff’s son had a right under Sections 37(1) and (17) of the Constitution to the full protection of the law, which right was to be fully available to him as a person in custody, and to be treated with humanity and with respect for the inherent dignity of the human person. These rights afford protection against negligent or reckless acts or omissions. It was proven that the first and second defendants breached those rights through their failure to enforce provisions of the Correctional Service Act dealing with health and hygiene of detainees and to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment and by the negligent failure of correctional officers to secure such treatment for the plaintiff’s son. The plaintiff established a cause of action for breach of human rights against the first and second defendants.

(5) The third defendant, the State, was vicariously liable for the negligence and breach of human rights committed by the first and second defendants and by the correctional officers for whose acts and omissions they were responsible.

PNG Cases Cited:


The following cases are cited in the judgment:


Application by R B Nimbituo & 4 Others (2015) N6156
Baisom Konori v Jant Ltd (2015) N5868
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
Kofowei v Siviri [1983] PNGLR 449
Manuel Gramgari v Steve Crawford (2012) N4950
Otto Benal Magiten v William Moses (2006) N5008
Paul Perex v PNG Institute of Medical Research (2014) N5614
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman’s Island [1979] PNGLR 202


Overseas case:
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.
Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd (“The Wagon Mound) [1961] AC388


Legislations:
Constitution (PNG)
Correctional Services Act
Correctional Services Regulations


Books & Articles
Article 5, Universal Declaration of Human Rights
Article 7, International Covenant on Civil & Political Rights

J.G, Fleming, The Law of Torts 5th Edition


STATEMENT OF CLAIM


This was a trial on liability for negligence and for breaches of human rights.


Counsel


S Ao, for the plaintiff
J Kerenge, for the defendants


6th May 2016:


  1. CANNINGS J: The plaintiff, Billy Bau, seeks damages against three defendants arising from the death of his son, Ronnie Bau, a prisoner who died while he was serving a sentence at Bomana Correctional Institution. The defendants are:
  1. The plaintiff claims that his son became ill while in custody, was not taken to hospital until it was too late and died two weeks after admission. He is claiming damages for negligence and breaches of human rights: breach of his son’s rights to freedom from inhuman treatment (under Section 36(1) of the Constitution) and to the full protection of the law, in particular the right to be treated with humanity and with respect for the inherent dignity of the human person (under Sections 37(1) and 37(17) of the Constitution). The defendants deny liability. A trial on liability has been conducted.

ISSUES


  1. These are the main issues:
    1. Has the plaintiff established a cause of action in negligence?
    2. Has the plaintiff established a cause of action for breach of human rights?
    3. If yes, which parties bear liability?
    4. What orders should be made?

FACTS


  1. Two affidavits by the plaintiff, outlining how his son came to be imprisoned and his illness and annexing medical records, have been admitted into evidence. No evidence has been adduced by the defendants. In this situation I invoke the fact finding principle that if one side of a case presents evidence on a disputed fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by the evidence that has been presented unless that evidence is so incredible that it would not be reasonable to accept it (Re Fisherman’s Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Manuel Gramgari v Steve Crawford (2012) N4950).
  2. I consider that the plaintiff has given credible evidence. The defendants have had ample opportunity to rebut it and have failed to do so. I generally accept the plaintiff’s evidence and make the following findings of fact.
  3. In 2007 Ronnie Bau was 28 years old, married with one child and living at Sabama in the National Capital District. On 27 October 2007 he completed a five-week deckhand course at the National Fisheries College and commenced work as a certified deckhand on a fishing vessel. While on a field break in Port Moresby during December 2007 he became involved in a drunken brawl in which a person died. Ronnie Bau was charged with wilful murder in relation to that incident and on 28 December 2007 was remanded in custody at Bomana Correctional Institution. He subsequently faced trial in the National Court and was found guilty and sentenced to a term of imprisonment. It appears that his criminal proceedings were completed by late 2008 or early 2009.
  4. When he first went into custody he was in good health and had no symptoms of TB or any other disease. He was visited frequently by his parents and other family members. On one of the plaintiff’s regular visits to Bomana Gaol in May 2009, he noticed that his son looked very sick. His son told him that he had asked the warders on several occasions to take him to Port Moresby General Hospital for proper treatment but they refused to do so. They only took him to the clinic at the gaol, where he was given Panadol and antibiotics. That is hearsay evidence but there has been no objection to it and as I pointed out earlier there is no contrary evidence.
  5. I find that it is true that Ronnie Bau’s requests to be taken to hospital were refused. He was told by the warders that his illness was minor and that he should not complain and that he only wanted to go to hospital so that he could escape.
  6. On 12 June 2009, after his condition worsened, Ronnie Bau’s request was eventually acceded to and he was taken by correctional officers at Bomana Gaol to Port Moresby General Hospital, for treatment. He stayed overnight on 12 and 13 June and on 14 June 2009 was admitted to Ward 4B. A report dated 16 June 2009 by Dr Taita Kila, Medical Registrar, Port Moresby General Hospital, stated:

RE PATIENT RONNIE BAU M/30 YEARS OLD

OF MOVEAVE, GULF PROVINCE


(i) This is to confirm that the above mentioned was admitted to Ward 4B of Port Moresby General Hospital on the 14/06/09. He presented with persistent cough, intermittent fever, weight loss and talking nonsense. He had urinary and faecal incontinence.

(ii) Clinical examination revealed a 30 year old man, very sick looking, lying in bed. His vital signs were within the normal range except for raised temperature of 39.5 degrees C. His significant clinical findings include:

(iii) He is currently treated as a case of meningitis. The result of his cerebral spinal fluid is pending.
  1. Ronnie Bau remained in Ward 4B and died there on 29 June 2009. A medical certificate of death, dated 30 June 2009 by Dr Kila recorded the cause of death as respiratory failure due to respiratory distress and TB meningitis. Other significant conditions recorded were infected bed sores and sepsis.
  2. A report dated 20 July 2009 by Dr David Linge, Consultant Physician, stated:

RE PATIENT RONNIE BAU M/30 YEARS OLD

OF MOVEAVE, GULF PROVINCE


(i) This is to confirm that the above mentioned was admitted to Ward 4B of Port Moresby General Hospital on the 14/06/09. He presented with persistent cough, intermittent fever, weight loss and was talking nonsense. In addition he had lost control of his bladder and anal sphincters which prompted his referral to hospital.

(iv) On clinical examination he was emaciated and had a very high fever of 39.5 degrees C. He had significant mental obtundation with signs of meningeal irritation.

(v) Examination of his cerebrospinal fluid revealed an extremely high protein content of 15 g/L and glucose of 1.9 mmol/L.

(vi) Mr Bau was diagnosed with Tuberculosis Meningitis and commenced on anti-tuberculosis treatment by a feeding tube from the day of his admission but died on 29/06/09 just over two weeks later.
  1. I find that Ronnie Bau contracted tuberculosis and meningitis while he was imprisoned. He was very ill and his requests to be taken to hospital were declined. By the time he was admitted to hospital he was extremely ill. He died in hospital, 17 days after being taken there, of respiratory failure caused by TB and meningitis.
  2. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION IN NEGLIGENCE?
  3. To establish a cause of action the plaintiff must prove the four elements of the tort of negligence. In particular he must prove that the tort of negligence was committed by the defendants, or persons for whose acts and omissions the defendants are vicariously liable, in relation to his son. So he must prove that:

(a) the defendants (or persons for whose acts and omissions the defendants are vicariously liable) owed a duty of care to his son;

(b) the defendants breached that duty, i.e. by act or omissions were negligent;

(c) the breach of duty caused injury to his son;

(d) the type of injury was not too remote.


  1. See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (e. g Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, Otto Benal Magiten v William Moses (2006) N5008, Paul Perex v PNG Institute of Medical Research (2014) N5614). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendant so it is not necessary to address the question of their rebuttal. Each of the four elements is now addressed in turn.
(a) Duty of care
  1. I find that the Gaol Commander and the Commissioner of the Correctional Service, and correctional officers at the correctional institution, owed a duty of care to all detainees, including the plaintiff’s son, to take reasonable steps to operate the correctional institution in such a way as to preserve the health and welfare of the detainees. The first element of negligence is proven.
(b) Breach of duty
  1. The question is whether the first or second defendants, or the correctional officers at the gaol, breached their duty of care to the plaintiff’s son. Did they act negligently? Did they fail to act in such a way that their omissions were negligent? Did they fail to take reasonable care?
  2. All those questions must be answered in the affirmative. When the plaintiff’s son was admitted to Ward 4B on 14 June 2009 he was extremely ill. He had a persistent cough, intermittent fever, a temperature of 39.5 degrees, and weight loss. He was talking nonsense and had urinary and faecal incontinence. He also had bed sores, indicating that he had been lying down without being mobile for an extended period prior to being taken to hospital. The plaintiff’s son had been requesting that he be taken to hospital for at least a month before being taken there (on 12 June 2009). He died 17 days after being taken to hospital due to respiratory failure caused by two curable diseases: tuberculosis and meningitis, which he had contracted in custody.
  3. It would have been obvious to any reasonable correctional officer, even one with minimal training in first aid or just a reasonable person’s ability to observe symptoms of common illnesses, especially TB, that the plaintiff’s son was in need of urgent medical examination and treatment. Once Ronnie Bau was taken to the clinic at the gaol, he should not have been simply given Panadol and antibiotics, but transferred to hospital as a matter of urgency. That was the standard of reasonable care required in this case. It was not adhered to. All correctional officers at the gaols who had Ronnie Bau in their immediate custody and control, or who were in a position to physically observe his condition, negligently failed to take adequate steps to see that his medical condition was reported and acted upon.
  4. I find that the Gaol Commander and the Commissioner of the Correctional Service breached their duty of care by failing to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment and by the negligent failure of correctional officers to secure such treatment for the plaintiff’s son. The second element of negligence is proven.
(c) Causation
  1. This element can be proven by asking the simple question: would the plaintiff’s son have died but for the negligent conduct of the first and second defendants and the correctional officers? (Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779.) If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established. The Court would be saying that, though the defendants were negligent, the plaintiff’s son would have died anyway. (That was the case in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where the court found that, though medical personnel at a hospital were negligent, their negligence did not cause the death of the patient, who had been poisoned with arsenic and would have died anyway.)
  2. There is no expert medical opinion before the Court stating that Ronnie Bau died because of the delay in taking him to hospital. However the standard of proof is not 100% certainty. This is a civil trial so the plaintiff must prove this issue on the balance of probabilities. The court is entitled to base its findings on reasonable inferences and common sense.
  3. Again I take judicial notice of the fact that tuberculosis and meningitis are both potentially fatal but eminently treatable and curable diseases. A person who contracts either or both diseases can with prompt and proper diagnosis and treatment be cured. I am therefore satisfied on the balance of probabilities that:
  1. The third element of negligence is established.

(d) Remoteness


  1. The plaintiff must establish that the type of injury for which he is claiming damages was reasonably foreseeable: not too remote. As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] UKPC 1; [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act ... is whether the damage is of such a kind as a reasonable man should have foreseen".


  1. I consider that the death of the plaintiff’s son was a reasonably foreseeable consequence of the negligent failure of the first and second defendants and the correctional officers who had the plaintiff’s son in their custody and control. The fourth element of negligence is established.

Conclusion


  1. The plaintiff has proven all elements of the tort of negligence. A cause of action has been established against the first and second defendants.
  2. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?
  3. At this juncture it is useful to pause, and appreciate, that this case is not just a common law claim in negligence. It is, in addition, an application for enforcement of human rights. The plaintiff is making a claim directly under the Constitution for enforcement of his son’s human rights.
  4. He is arguing that his son had human rights, like everyone else in Papua New Guinea, even though he was in prison. He argues that some of those rights were breached by the correctional officers at Bomana Gaol and by the Gaol Commander and by the Commissioner of the Correctional Service and that his son died as a consequence.
  5. ‘Breach of human rights’ is a constitutional cause of action that is separate and distinct from common law causes of action, such as the tort of negligence. A constitutional cause of action can be pleaded and argued – as the plaintiff and his lawyer have done here – in the same proceedings as a common law cause of action. And multiple causes of action can be based on the same set of facts.
  6. So, what constitutional causes of action is the plaintiff arguing? Which human rights of his son were breached? Three were pleaded in the statement of claim:
  1. The plaintiff’s counsel, Mr Ao, did not pursue the first one at the trial. Only the second and third are relied on. I will deal with them separately.
(a) Freedom from inhuman treatment
  1. The plaintiff argues that the first and second defendants (and the correctional officers for whose conduct they are responsible) breached his son’s right to freedom from inhuman treatment under Section 36 of the Constitution (freedom from inhuman treatment), which states:

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.


(2) The killing of a person in circumstances in which Section 35(1) (a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.


  1. Mr Ao submitted that the refusal by correctional officers to accede to Ronnie Bau’s requests to be taken to hospital amounted to inhuman treatment.
  2. I pointed out in Application by R B Nimbituo & 4 Others (2015) N6156 that Section 36(1) confers on all persons in Papua New Guinea the right not to be submitted to three sorts of conduct:
  1. The terms “torture” and “inhuman treatment” are not defined in the Constitution but their meaning can be gleaned from international human rights instruments. Article 5 of the Universal Declaration of Human Rights, which states:

No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.


  1. Article 7 of the International Covenant on Civil and Political Rights is in similar terms:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.


  1. In Kofowei v Siviri [1983] PNGLR 449 a number of human rights breaches were found to have been committed against persons detained in custody but a claim based on Section 36(1) of the Constitution was rejected. It was held that for a person’s conduct to amount to torture or otherwise inhuman treatment of another person under Section 36(1):
  1. I follow the Kofowei approach here. Though the first criterion is satisfied, there is insufficient evidence that any of the correctional officers who refused Ronnie Bau’s requests to be taken to hospital did so deliberately or vindictively with the intent or effect of treating him as less than human. His inherent dignity as a human person was not infringed. No breach of human rights under Section 36(1) of the Constitution has been proven.
(b) Full protection of the law
  1. The plaintiff argues that the first and second defendants (and the correctional officers for whose conduct they are responsible) breached his son’s right to the full protection of the law under Section 37(1) of the Constitution; and in particular his son’s right to be treated with humanity and with respect for the inherent dignity of the human person, under Section 37(17) of the Constitution.

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.


(ii) Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.


  1. Mr Ao submitted that the effect of the correctional officers’ refusal to accede to Ronnie Bau’s requests to be taken to hospital was to deny him the full protection of the law and amounted to a failure to treat him with humanity and with respect for the inherent dignity of the human person.
  2. I uphold that submission. I consider that the general right under Section 37(1)
    and the specific right under Section 37(17) afford protection against not only deliberate or malicious, but also negligent or reckless, acts or omissions by those persons such as the Gaol Commander and the Commissioner of the Correctional Service or correctional officers for whose acts and omissions they are responsible, whose statutory functions and duties are to preserve the welfare, security, safety and health of all detainees.
  3. Section 141 of the Correctional Service Act supplements the rights conferred by Sections 37(1) and 17 of the Constitution by conferring on each detainee the “right to reasonable medical care and treatment” and requiring the Commissioner to appoint a “medical officer” to each correctional institution. Section 141 (health) states:

(1) A detainee has a right to reasonable medical care and treatment consistent with community standards and necessary for the preservation of health including, with the approval of the Departmental Head of the Department responsible for health matters but at the expense of the detainee, a private medical practitioner.


(2) The Commissioner shall appoint a medical officer with the prescribed qualifications to each correctional institution.


(3) The Regulations and Standing Orders may make further provisions in relation to the health of detainees.


  1. Sections 107 to 121 of the Correctional Service Regulation confer further rights on detainees and further duties on the Commissioner and all members of the Correctional Service, particularly in regard to sick detainees. These provisions state:

107. Qualifications of Medical Officer.


For the purpose of Section 141(2) of the Act, a medical officer appointed under the Act shall have at least one of the following qualifications:—


(a) be registered as a nurse by the National Nursing Council;

(b) be registered as a health Extension Officer by the National Medical Board;

(c) be registered as a Medical Practitioner by the National Medical Board.


108. Medical registers.


(1) There shall be kept at each institution a register to be known as the Medical Register.


(2) A medical officer shall record in the Medical Register kept at an institution and in the personal file of the member or detainee concerned—


(a) the name of any member or detainee at the correctional institution who is examined by him; and

(b) the name of the disease or illness (if any) from which the member or detainee is suffering; and

(c) details of any medicine, diet or other treatment that is ordered for the member or detainee.


109. Medication of detainees.


A correctional officer who receives a detainee into a correctional institution shall advise the medical officer if the detainee surrenders medication or if medication is seized at reception.


110. Infirmary.


The Commanding Officer shall set apart a suitable room within a correctional institution as an infirmary for sick detainees, and shall keep the male and female detainees in the infirmary separate.


111. Observance of Act.


A medical officer shall—


(a) conform to and observe the provisions of the Act, this Regulation and the Standing Orders; and

(b) Do nothing to prejudice the maintenance of discipline or the safe custody of detainees.


112. Examination of detainees by Medical Officer.


The medical officer of a correctional institution shall see and examine every detainee in that correctional institution as soon as possible after his admission and thereafter as necessary, with a view particularly to—


(a) the discovery of physical or mental illness and the taking of all necessary measures in connection therewith; and

(b) the segregation of detainees suspected of infectious or contagious conditions; and

(c) the noting of physical or mental defects which might hamper rehabilitation; and

(d) the determination of the physical capacity of every detainee for work.


113. Medical Officer to see sick detainees daily.


(1) The medical officer shall have the care of the physical and mental health of the detainees and shall daily see all sick detainees, all who complain of illness, and any detainee to whom his attention is specially directed.


(2) The medical officer shall report to the Commanding Officer whenever he considers that a detainee's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.


114. Sickness of detainees.


Where the medical officer is of the opinion that—


(a) the life of a detainee is endangered by his detention in a correctional institution; or

(b) a sick detainee may not survive his sentence; or

(c) a detainee is unfit for detention in a correctional institution,


he shall report his opinion in writing to the Commissioner.


115. Infectious diseases.


Where the medical officer believes or suspects that a person in a correctional institution is suffering from an infectious or quarantinable disease, he shall immediately—


(a) notify the Commissioner and the Departmental Head of the Department responsible for health matters; and

(b) take, or cause or direct to be taken, all necessary measures to protect persons in the institution against the disease; and

(c) to supervise the carrying out of the measures or cause them to be supervised.


116. Detainees undergoing hard labour.


(1) Where a medical officer thinks that a detainee about to perform or performing hard labour is unfit to perform or to continue to perform hard labour, he may order that the hard labour cease, or not be performed, either wholly or partially, pending a decision of the Commissioner under Subsection (2).


(2) Details of an order under Subsection (1) shall be reported immediately by the medical officer to the Commissioner, who may make such order as to the labour to be performed as he thinks necessary or desirable.


117. Examination of detainee under restraint.


A medical officer or medical practitioner shall—


(a) conduct an examination of a detainee to whom an instrument of restraint has been applied as soon as possible after receiving a request from the Commissioner to examine the detainee; and

(b) report to the Commissioner the result of that examination.


118. Notification of mental or physical illness.


(1) A member who believes that a detainee is mentally ill, physically ill or intellectually disabled shall bring the matter to the attention of the Commanding Officer.


(2) The Commanding Officer shall refer all matters brought to his or her attention under Subsection (1) to a medical officer.


  1. The plaintiff has proven that the first and second defendants (and correctional officers for whose conduct they are responsible) failed to comply with the duties imposed on them by a number of the above provisions. They failed to have a system in place to ensure that a detainee showing obvious signs of serious and life-threatening illness would be taken to hospital for urgent medical treatment.
  2. The plaintiff has therefore established a cause of action for breach of human rights, under Sections 37(1) and 37(17) of the Constitution, against the first and second defendants.
  3. WHICH PARTIES BEAR LIABILITY?
  4. The plaintiff is entitled to a finding of liability and an award of damages against all defendants. He has proven causes of action in negligence and breaches of human rights against the first and second defendants. He has also proven that the wrongful acts and omissions that gave rise to those causes of action were committed by servants of the State, the third defendant, in the course of their employment. The State is therefore vicariously liable.
  5. WHAT ORDERS SHOULD BE MADE?
  6. An order as to liability will be made. Damages will be assessed at a separate trial unless the Court is notified that the parties have agreed on an appropriate amount. Normally costs follow the event, but as the plaintiff has been represented by the Public Solicitor, the parties will bear their own costs.

ORDER


(1) The plaintiff has established causes of action for negligence and for breaches of human rights, in particular the rights in Sections 37(1) and 37(17) of the Constitution, against the defendants, who are liable in damages to the plaintiff under the common law and under Sections 57 and 58 of the Constitution.

(2) Unless the parties agree on the amount of damages payable to the plaintiff and within 14 days of judgment notify the Court accordingly, a directions hearing for a separate trial on assessment of damages shall be set down with all due dispatch.

(3) The parties will bear their own costs.

Judgment accordingly,
_________________________________________________________________
Public Solicitor : Lawyer for the plaintiff
Solicitor-General : Lawyer for the defendants


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