Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
In 2020, the Plaintiff, a prisoner, brought a civil claim against the Defendants, the government and prison authorities, on the basis that they owed a duty of care to him to protect him from the risks posed by COVID-19. In this interlocutory application, the Plaintiff sought orders releasing him from prison to protect him from the risks associated with COVID-19, and to ensure his medical needs are otherwise met. To be granted such orders, the Plaintiff needed to establish that there was a “serious question to be tried”. The Court found that the Plaintiff had not established such a serious question, and therefore refused the Plaintiff’s application.
Facts of the case
The Plaintiff is a prisoner who is serving a 5-year sentence for fraud. He was scheduled for release from prison on 5 August 2022. Pursuant to the Corrections Act 1986 (VIC) s112O(I), the Secretary or Governor of a prison has the power to restrict movement for, ‘....the purposes of preventing, detecting or mitigating the risk of COVID-19 or related health risks in relation to a prison, prisoners...or any other person. Due to a COVID-19 outbreaks in the prison, the Plaintiff’s unit had been locked down seven times between 16 May and 26 June 2022. The Plaintiff suffers heart and lung conditions as well as decreased renal function and mental health problems. Prison lockdowns impacted the Plaintiff’s ability to attend medical appointments. The Defendants had offered to relocate the Plaintiff to a different prison, where there were at that time no COVID-19 cases. The Plaintiff rejected this offer as he understood that he would be in solitary confinement in the different prison.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court acknowledged that the Defendants owed the Plaintiff a duty of care. However, the Court found that the duty of care owed to him could be discharged in ways other than releasing him from prison, including through improved cleaning and provision of medications.
Conclusions of the deciding body
The Applicant had not established that there was a serious question to be tried and the application was dismissed.
Fundamental Right(s) involved
- Prisoners’ rights
- Right to health (inc. right to vaccination, right to access to reproductive health)
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court recognised that there is a public interest to ensure that prisoners serve their sentences which exists alongside the public interest that the health and welfare of prisoners be protected. However, as there was a finding that there was no serious question to be tried, this balancing of interests was not considered in these proceedings.
The Judge noted that authorities should consider the specific interests of those individual prisoners with serious health conditions, rather than as part of the general prison population given their vulnerability to COVID-19 infection. The Judge also noted that while COVID-19 may have fallen from the community’s attention as their freedoms have been restored, prisoners cannot exercise these rights and often their voices are not heard.