COVID-19 in Perspective: A Prophecy on the Looming Negligence Claims (2)
By: Christine Selikem Lassey (University of Ghana School of Law)
“The rule that you are to love your neighbour becomes in law; you must not injure your neighbor… You must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure your neighbor”. (Lord Atkin Donoghue vs. Stevenson  AC 562)
In Part 1 of this article, it has been explained that in a negligence claim, the Plaintiff must generally prove that the Defendant owed him/her a duty of care. In the wake of this novel COVID-19 pandemic, one can draw wisdom from the neighbor principle enunciated by Lord Atkin supra to guide his or her conduct. Indeed, health experts have admonished each person to act responsibly in the fight against the virus.
However, the law is not oblivious to recalcitrant and defiant persons (neighbors) who may disregard all health protocols and infect others with the virus. The determination as to whether a duty of care exists is a question of law. To do this, the courts are guided among others, by precedents and statute if any, or the neighbor principle espoused by Lord Atkin.
It is not surprising that this novel virus does not fall under any precedent. Accordingly, the courts would as a matter of necessity have to adopt the neighbor principle in making such a determination. In applying the neighbor principle, a duty of care is established if there is reasonable foreseeability of harm and proximity between the parties and it must be fair, just and reasonable to impose said duty. Also, the duty of care must be breached and the Plaintiff should have suffered damage as a result. The law considers certain factors in determining whether the duty of care was breached.
These include the likelihood of injury and the expense involved in averting the risk of the Defendants activities. In the present circumstances, the writer is of the opinion that the lethal nature and rate of transmission of COVID-19 are useful factors in deciding whether the Defendant has breached the duty of care.
The law recognizes a liability for the negligent transmission of communicable and venereal diseases. Although there is no precedent on the liability for the transmission of COVID-19, reference can be made by our courts to case law on transmitting other diseases in order to establish the scope and extent of the duty of care that COVID-19 patients owe to their neighbours. In Sheryl Berner v Don T. Caldwell (543 So. 2d 686(Ala 1989), the Plaintiff contended that the Defendant had intentionally or negligently infected her with simplex virus type II (genital herpes). The Court held that a person who knows or should have known that he or she was infected with herpes is under a duty to either abstain from sexual contact with others or warn others of the infection before any contact. The court added that the duty of care of a person infected with herpes could also be imposed on transmitting other sexually transmitted diseases. Despite the difference in transmission between herpes and COVID-19, the court’s reasoning can be applied mutatis mutandis in establishing a duty not to transmit COVID-19.
The state has a sacred duty to protect its people from contracting diseases irrespective of their mode of transmission. The writer is of the opinion that legal rules can be massaged to accommodate this mandate. Another case that lends itself to the court in determining the liability for the transmission of COVID-19 is Smith v Baker (Circuit court S.D New York, July 5 1884). The Defendant’s children had whooping cough but he took them to a boarding house and, as a result, infected other children. The jury impugned negligence to the defendant because he acted without exercising due care to prevent taking the contagious disease to the boarding house.
As noted in the Caldwell case supra, knowledge may either be actual or constructive and this seems to be crucial in a negligence claim in respect of transmission of diseases. Asymptomatic COVID-19 patients may pose a challenge in determining the existence of a duty of care as such patients may infect others bona fide.
Firstly an asymptomatic person may not take a test and hence will not have actual notice of a COVID-19 infection. However, the court may impute constructive notice where the surrounding circumstances of the case so warrant. For example, A lives in the same house as B and C. Both B and C test positive for COVID-19. Considering the high rate of infection and the government policy to quarantine close contacts of infected persons, if A infects D with the virus, A cannot be heard to say that she did not know about her status. This is because a person of ordinary prudence, having been around COVID-19 positive patients ought to know of the high possibility of contracting the virus. However, it is the opinion of the writer, that this must be determined on a case by case basis. It is not intended to be a legal principle slavishly followed by all. In Endres v Endres 2008 VT 124, the Plaintiff alleged that the husband inflicted her with HPV. Both parties agreed that the husband was asymptomatic but the wife failed to prove that the husband knew or should have known that he had HPV. The action failed because to ground liability, the Defendant must have actual or constructive knowledge of infection.
Secondly, an asymptomatic patient may have actual knowledge of COVID-19 infection but may erroneously believe that he cannot infect others. It appears that this line of defence would also not suffice, especially when the World Health Organization has not ruled out the transmission of COVID-19 by asymptomatic patients. In Doe v Roe (1990) 218 Cal. App. 3d 1538, the Plaintiff had sexual relations with the Defendant, who had herpes. The Defendant did not tell the Plaintiff about his condition because he believed he could not transmit it. The Plaintiff contracted genital herpes and sued. The court was not swayed by the defendant’s argument and held that the risk of harm was foreseeable and the Defendant failed to exercise reasonable care.
The Plaintiff must also establish a causal link between the Defendant’s breach of duty and his infection. It is relatively easier to prove causation for sexually transmitted diseases. This is because sexual relations is a vital element for transmission. On the other hand, WHO (2020) asserts that COVID-19 can be transmitted through respiratory droplets from infected persons. This leaves a potential litigant with a herculean task of proving causation. Admittedly, this task is almost impossible where the potential Plaintiff visited a large gathering or patronized a public means of transport. Nonetheless, the rate of successfully establishing causation is higher where the Plaintiff has been in close proximity with an infected person.
As espoused by Oliver Wendell Holmes, “The prophecies of what the court will do in fact and nothing more pretentious is what is meant by law”. It is the writer’s submission that the courts relying on a plethora of case law on the transmission of diseases are equipped to hold persons who transmit COVID-19 to others liable in negligence depending on the facts of each case. Indeed, the pronouncement of the courts shall testify of the fulfillment of this prophecy.