White v. GSL Custodial Services Pty Ltd

The plaintiff, Mr White, was a prisoner at Port Phillip Prison, a prison managed by the defendant, GSL Custodial Services Pty Ltd ("GSL"). Mr White alleged that he had suffered indirect discrimination under the Equal Opportunity Act because he was placed in a double cell with a cell mate who was a cigarette smoker, and while there were some designated smoking areas in the prison, prisoners were also permitted to smoke in their cells. He alleged that continuing to be housed with smokers was uncomfortable for him as a non-smoker.

In this decision, Deputy President McKenzie struck out Mr White's complaint as not falling within the technical bounds of the Equal Opportunity Act, because Mr White had not disclosed any past or present "impairment". However, Deputy President McKenzie also noted that the decision did not mean that he did not regard the issue as important, and that the State may wish to include the dangers of exposure to second-hand smoke in its policies concerning prisoners and prisons.

White v. GSL Custodial Services Pty Ltd [2006] VCAT 791 (19 May 2006)

  • Australia
  • May 10, 2006
  • Victorian Civil and Administrative Tribunal
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Parties

Plaintiff Sherman White

Defendant GSL Custodial Services Pty Ltd

Legislation Cited

Equal Opportunity Act 1995 (Vic)

Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Related Documents

Type of Litigation

None

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"In my view, the claim as currently formulated, is misconceived and should be struck out as unsustainable on that basis. However, one interpretation of part of the claim is that the symptoms of difficulty breathing and throat constriction, however caused, are symptoms of a medical condition which would be worsened by further exposure to cigarette smoke. It does not matter whether initial exposure to smoke or something else caused that medical condition. If Mr White suffered from such a medical condition, this would be capable of being constituting an impairment under the Equal Opportunity Act and of forming the basis of an indirect discrimination claim. I make no further comment on such a claim because this is not how the complaint is currently formulated. But while striking out the complaint, I give an opportunity to Mr White to apply for reinstatement if, and only if, he specifies the nature of the medical condition and its symptoms and provides medical evidence confirming that condition and its symptoms."