SA Constitutional Court finds government liable for prisoner contracting TB in pre-trial detention

Mr Lee, was detained at Pollsmoor Maximum Security Prison in pre-trial detention from 1999 to 2004, appearing in court no fewer than 70 times. Mr Lee contracted TB while in prison. The court found there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity. The court further found there is a probable chain of causation between the negligent omissions by the responsible authorities and Mr Lee’s infection with TB. The case was remitted to the High Court to determine the amount of damages.

The applicant, Mr Lee, was detained at Pollsmoor Maximum Security Prison from 1999 to 2004, spending two months on bail during 2000. He was tried for various financial crimes and found not guilty. Mr Lee is now 66.

The respondent is the Minister for Correctional Services. The Treatment Action Campaign, Wits Justice Project and Center for Applied Legal Studies, were admitted as amici curiae.

Mr Lee contracted tuberculosis (TB) while in prison. Mr Lee sued the Minister for damages on the basis that the poor prison health management resulted in his becoming infected.

The following appeared in the Statement of Agreed Factual Findings: the applicant was not infected with TB when he arrived at Pollsmoor; the responsible authorities were “pertinently aware of the risk” of inmates contracting TB; TB is an airborne communicable disease which spreads easily especially in confined, poorly ventilated and overcrowded environments; Pollsmoor is notoriously congested and inmates are confined to close contact for as much as 23 hours every day – this providing ideal conditions for transmission; on occasion, the lock-up total was as much as 3052 inmates and single cells regularly housed three inmates; communal cells were filled with double and sometimes triple bunks; the responsible authorities relied on a system of inmates self reporting their symptoms upon admission to the prison and during incarceration; and the control of TB at Pollsmoor depends upon effective screening of incoming inmates, the isolation of infectious patients and the proper administration of the necessary medication over the prescribed period of time.

During his incarceration the applicant regularly underwent sputum tests, the results of which were negative until June 2003. He was diagnosed with TB after three years of his incarceration.

Despite this diagnosis and the possibility that he would remain contagious for at least another two weeks, the applicant was returned to his cell where he was confined for up to 23 hours with at least one other person.

The High Court upheld the claim on the basis that the prison authorities had failed to take reasonable steps to prevent Mr Lee from contracting TB.

On appeal, the Supreme Court of Appeal (SCA) found that, while the prison authorities were negligent in their failure to maintain reasonably adequate systems to manage the disease, the Minister was not liable. The SCA found that Mr Lee had not proved that the presence of reasonable, precautionary measures would have completely eliminated his risk of contracting TB.

In the Constitutional Court, the majority held that the SCA, in applying the test for factual causation, adopted rigid deductive logic which necessitated the conclusion that because Mr Lee did not know the exact source of his infection, his claim had to fail.

The Constitutional Court held that our law has always recognised that the test for factual causation should not be applied inflexibly as was done by the SCA. The majority held further that on the approach adopted by the SCA it is unlikely that any inmate will ever be able to overcome the hurdle of causation and further that no effective alternate remedy will be available to a person in the position of the applicant.

The majority of the Constitutional Court, in a judgment written by Judge Nkabinde, noted that there is a legal duty on the responsible authorities to provide adequate health care services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity. In upholding Mr Lee’s claim, the majority held that there is a probable chain of causation between the negligent omissions by the responsible authorities and Mr Lee’s infection with TB.

The minority, in a judgment by Judge Cameron, held that it is not possible to conclude, on the existing test at common law, that the negligence of the prison authorities more probably than not caused Mr Lee to contract TB. This is because of the unique characteristics of TB. The minority found that Mr Lee could not show that in the specific case of his own infection, reasonable measures would probably have saved him from contracting TB. The minority agrees with the SCA that Mr Lee could not satisfy the existing test for causation. It found however, the resultant injustice in cases such as this, where the disease by its very nature defies the but-for inquiry, required the Court to develop the common law. The minority concluded that it would not be possible, on the available evidence, for the Court to consider properly and justly all the avenues of possible development, and their implications for the parties’ respective cases. The minority judgment would therefore have remitted the matter to the trial court, for it to consider the manner in which the common law ought to be developed.

Read the full judgment here.