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Rights Archives: Right to health

Case of the Yakye Axa Indigenous Community

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

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Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. App. 1995)

Year: 1995 (Date of Decision: 31 October, 1995)

Forum, Country: Court of Appeals, United States of America

Standards, Rights: Negligence; Right to health

Summary Background: The deceased patient’s children and grandchildren brought this case against the hospital for medical malpractice and violations of the Emergency Medical Treatment and Active Labor Act (EMTALA).

Holding: The Court of Appeals affirmed the lower Court’s decisions in favor of the plaintiff. The lower Court held that the defendant’s failure to provide appropriate screening to the decedent and assigning her a number when she told the hospital she had chest pains demonstrated a lack of justification that amounted to an effective denial of a screening examination [p. 1193].

Additional Comments: Jury awarded the family $200,000 damages for pain and suffering, which the Court of Appeals affirmed [p. 1197|. The Hospital argued that the jury award was excessive, but the Court held that the damages were not excessive as the record supported the evidence presented regarding emotional suffering [p. 1197-98]. Further, the hospital’s negligence in addressing the deceased plaintiff’s medical problems led the jury to hand out a reasonable amount of damages [p. 1198].

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Pape v. Cumbria CC, [1992] I.C.R. 132

Year: 1991 (Date of Decision: 23 May 1991)

Forum, Country: High Court (Queens Bench Division), United Kingdom of Great Britain and Northern Ireland

Standards, Rights: Negligence; Right to decent work; Right to health

Summary Background: The plaintiff worked for the defendants as a cleaner. She was not warned of the dangers arising from frequent use of detergents and other cleaning materials and she received no instructions from the defendants to wear the gloves that were provided.

As a result of her hands coming into contact with cleaning agents, she developed dermatitis on her hands and wrists in 1982. The condition spread to other parts of her body and by 1985 she had developed erythroderma.

She received medical treatment and after periods of sick leave she had to give up work in November 1986.

Holding: The Court held that the defendants had failed in their duty to warn the plaintiff of the dangers of handling chemical materials with unprotected hands and to instruct her in the need to wear rubber gloves [p. 138]. Therefore, the plaintiffs were liable in negligence to pay the plaintiff damages assessed at £22,000 including general damages for pain, suffering, and loss of amenity; special damages; damages for future loss of earnings; damages for future outlays and losses other than earnings [p. 139].

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Park West Management Corp. v. Mitchell, 391 N.E.2d 1288 (N.Y. 1978)

Year: 1978 (Date of Decision: 2 May, 1978)

Forum, Country: Appellate Division of the Supreme Court of New York, United States of America

Standards, Rights: Reasonableness; Right to adequate housing; Right to health

SummaryBackground: This case involves the property law right of the “implied warranty of habitability”, which guarantees a tenant a liveable home environment. The landlord is responsible for the upkeep and maintenance of a property, and cannot allow for conditions that would affect the health and safety of the tenant. In this case, tenants of this building withheld their rent to protest the interruption of extensive garbage removal and janitorial services which affected the health and safety of the tenants. The janitorial staff had gone on strike, causing many services and amenities to stop. This caused the building to turn into an environment where rats, roaches and other vermin flourished. Routine maintenance was not completed and trash incinerators were wired shut.

Holding: The Court determined that anything detrimental to life, health, and safety is considered a breach of the warranty of habitability and violates a tenant’s rights as guaranteed by the housing code. The ruling described a residential lease as a sale of shelter and needs to encompass services, which render the premises suitable for which they are leased. While the premises need not be perfect, they must not perpetuate conditions that can adversely affect the tenant’s health and safety [p. 1294-95]. Further, the overarching test for determining whether a property is liveable is based on a reasonable person standard. If a reasonable person would not find a place habitable, then the implied warranty of habitability has been breached [p. 1295].

This would also be a violation of the Right to Housing.

Additional Comments: Damages should be awarded through a balancing test in which the fact finder must weight the severity of the violation, the duration of the conditions, and the steps taken by the landlord to remedy the situation. In this case, the judge awarded 10 per cent deduction on the rent due to the severity of the conditions and the meagre attempts by the landlord to remedy the situation [p. 1295].

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