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Tort Law and Covid-19: Liability for transmission

Covid-19 is a mild to severe respiratory illness that is caused by a coronavirus, which is transmitted mainly by contact with infectious material (such as respiratory droplets) or with objects or surfaces contaminated by the causative virus, and is characterized especially by fever, cough, and shortness of breath and may progress to pneumonia and respiratory failure.

With the recent and sudden outbreak of this virus, there have a number of reported cases where infected people or virus carriers have put other individuals at risk. An example of such a case includes Indian singer Kanika Kapoor, who continued to attend various events despite being advised to be quarantined. In another case, two travellers who tested positive for COVID-19 decided to travel to an island in the Jeju Province of South Korea. A group of 114 members of the Chabad Lubavitch Hasidic group flew from New York to Israel, and upon arriving in Israel, at least 65 of those passengers tested positive for COVID-19.

Can people infected with COVID-19 sue the people who transmitted the disease to them for negligence, even if those people did not do so knowingly? Lack of cases and judgements in the area connecting tortious claims and the spread of the coronavirus, brings us to this article.

Negligence

Although it has not been determined whether a cause of action can exist for negligently transmitting COVID-19 , it seems that the individuals should be held liable, as they had knowledge or reasonably should have had knowledge that they were carriers of the virus; those people had a duty to prevent transmission of COVID-19.

There are three essential elements to establish a cause of action for negligence. A plaintiff must establish that:
  1. the defendant owes him or her a duty;
  2. there was a breach of that duty; and
  3. damages resulted from such breach.

Duty to Prevent the Transmission of COVID-19

To determine whether there is a duty, various factors are considered, such as the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, etc. [i]

The law of Torts has not yet answered whether contracting COVID-19 during a flight, private event, work out in the park, or grocery store constitutes harm, but courts have discovered causes of action for negligently transmitting diseases. In the case of Billo v. Allegheny Steel Co.[ii], it was held that:
“To be stricken with disease through another's negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another's negligence.”

In several other situations, courts have allowed lawsuits for the negligently transmitting diseases based on both actual and constructive knowledge and thereby imposed liability on those who have harmed others, as in the case of John B. v. Superior Court[iii] where the California Supreme Court determined that the burden of a duty of care is on defendants who know or have reason to know of their HIV infection is minimal, and argued that the tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.

In the cases mentioned above, the infected either had knowledge or had reason to know that they are carriers of the virus by developing symptoms or having close contact with other infected individuals. In spite of that, they decided to act in a way that put other individuals at risk.

In Hendricks v. Butcher[iv] it was said that “any one afflicted with the disease of smallpox, which is known by everyone to be a highly contagious disease, owes to everyone the duty to so conduct himself as not to communicate this disease to them after he becomes aware that he is afflicted with it.

Kliegel v Aitken[
v] laid that it is well established that one, who negligently- that is, through want of ordinary care exposes another to an infectious or contagious disease, which such other thereby contracts, is liable in damages therefore, in the absence of contributory negligence.

A Breach of Duty

After establishing the existence of a duty, the next important element to prove is the breach of such duty. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In the case of COVID-19 it occurs when a person who has tested positive for COVID-19, or a person who has symptoms of COVID-19 leaves his or her house and visits public areas or uses public services. Since the risk of transmitting and catching the virus is high, if the infected person leaves the house knowing or suspecting that she or he is infected with COVID-19, then he or she breached the duty to prevent its transmission.

This standard of care required is a matter of law and varies according to different circumstances. With considerable media coverage and exposure to information about COVID-19, the argument that a person would not know or suspect that they were infected with COVID-19 is invalid.

Element of Causation/ Casual Connection

In cases of negligence, the plaintiff must prove that the actions of the defendant was the cause of the plaintiff's injury. It is also referred to as the but-for causation, meaning that, but for the defendant's actions, the plaintiff's injury would not have occurred. But, the causation in cases of transmission of the virus, it may be hard to prove that the infected individual was the proximate cause of the disease in other people, especially since it is proven that the virus can remain on surfaces for days.

It is much easier to trace causation for cases where the mode of transmission may be direct contact or through body fluids. But, it can be traced by looking into various things like travel history, people who the victim was in contact with, places he visited, etc.

There are cases where a person intentionally or deliberately coughed or spit on a person to spread the disease. This is the intentional tort of battery. The occurrences of such batteries are rare, but they have occurred. Batteries are both torts and crimes. If the victim is rapidly tested and is positive for coronavirus, causation may be inferred.

Damages

The last and final element is to prove damages suffered by the plaintiff. Damages may be in the form of pecuniary losses which include the plaintiff's high medical expenses or non-pecuniary losses, which include the plaintiff's severe physical pain and suffering, which may ultimately lead to death as mental strength is proven to be a major factor to survive the coronavirus.

Conclusion
The spread of COVID -19 has undoubtedly been one of the most challenging times for all countries and since the rise in cases are distressingly high it is the responsibility of each and every individual to act reasonably when they have knowledge of being exposed or infected or are likely to be infected or exposed with the disease. Negligent people must take proper precautions or be held accountable for their actions.

End-Notes:
  1. Rowland v. Christian (1968) 69 Cal. 2d 108
  2. (Pa. 1937) 195 A. 110
  3. (2006) 38 Cal. 4th 117
  4. 129 S.W. 431, 144 Mo.App. 671
  5. 94 Wis. 432 (1896)

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