16 June 2020

Is COVID-19 a Get-out-of-Jail Card?

Mark Rowson, a 52-year-old prisoner in Port Phillip prison, Victoria, recently sought an order releasing him from prison, under strict conditions, to live with his mother. He suffered from a number of health complaints including chronic atrial fibrillation, angina, asthma, poor blood pressure and decreased renal function which he submitted would place him at a greater health risk if he was infected by COVID-19.

Mr Rowson was serving a sentence for fraud offences and he was not otherwise eligible for parole until March 2022.

Expert evidence was presented about the epidemiology of COVID-19. 

About 60% of reported infections were classified as being acquired overseas. It was estimated that 44% of transmissions occurred before symptoms presented. At the time of the application, the number of confirmed cases in Victoria was 0.02% of the population (or 1 in 4,740) with the projection being that it would drop to 0.006% to 0.013% (or 1 in 7,880 – 15,760). 

There had been no cases reported amongst prisoners or prison employees in Victoria. The risk of infection to a prisoner was considered lower than the risk of infection in the community but the risk was higher if there was an outbreak within the prison. The risk of Mr Rowson presenting a severe case of COVID-19 was 10% and his estimated risk of dying was around 30%.

The court accepted that the prison authority owed Mr Rowson a duty to take reasonable steps to ensure that he did not suffer serious injury or death from COVID-19.

The prison had adopted safety policies designed to combat COVID-19 including health assessments and a 14-day quarantine period for new prisoners. Any prisoners displaying symptoms were to be isolated and tested.

Mr Rowson was, however, able to point to a number of breaches of the COVID-19 policy measures within his unit. Surfaces such as touchscreen kiosks in common areas and gym equipment were touched numerous times a day without being cleaned. Cells weren’t cleaned or sanitised for new prisoners. 

Access to cleaning and disinfectant supplies was limited. Hand sanitiser wasn’t available. There was limited scope for social distancing. There was no temperature testing. There was limited education about prevention and management measures

The court ultimately declined to make an order that Mr Rowson be released from prison. There had been no COVID-19 cases in prison. Additional measures had been taken to prevent the entry of the virus into the prison or to control it if it did. Mr Rowson was in jail for serious offences and on public policy grounds, he should serve his sentence.

Although not making specific factual findings, there was evidence of hygiene breaches which combined with the absence of a risk assessment could have been sufficient to establish a prima facie case that the prison authority breached its duty of care to Mr Rowson which exposed him to a risk of injury. A risk assessment was ordered.

The case has potentially wider ramifications in workplaces generally, particularly as employees start to return to the workplace, in terms of risk management assessments and implementation and enforcement of protective measure to keep employees safe from COVID-19.



Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).


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