The Author, Harsh Khanchandani is 1st year student pursuing BBA LLB from Symbiosis Law School,Pune.
Introduction
With corona virus spread on the rise, there arises a major concern for courts to decide whether or not a person can be sued if he or she spreads such disease. To give a different dimension to the problem of determining liable, we can refer to liability under negligence. Before applying this conventional doctrine we shall supply the context for our discussion by listing down the principle characteristics of COVID-19. COVID-19 is a contagious and an infectious disease which is spread via droplets generated when an infected individual is coughing or sneezing, or through saliva droplets or nose releases that threaten public health. Due to lack of precedents on the topic this article will examine liability of spreading COVID-19 by drawing comparisons with other deadly infectious disease such as Small pox, Whopping cough, Scarlet fever, HIV which have different modes of transmission.
Since the outbreak there have been a number of cases reported where COVID-19 carriers have put other individuals at risk. In one case, people in US started organising parties so as to intentionally spread the virus. In another case, an Indian singer Kanika Kapoor, who was quarantined, went to attend events despite being told to isolate herself. Lastly, two travellers who had been tested positive decided to travel to an island in South Korea. Although cause of action is still undermined under negligence. But the above examples clearly provide for duty to prevent transmission making them liable.
Element of constructive or actual knowledge
An important aspect that has to be taken into consideration is constructive or actual knowledge of the contagious condition to the infected person to impose liability on him/her. This was seen in the case of Endres v. Endres where it was held “using a constructive knowledge requirement holds responsible those who consciously avoid knowledge of infection even when suffering visible symptoms of a disease”. In another case Doe v. Roe ,California’s courts had imposed liability even when a person spreading the disease believed that they were not infected. Going by the facts of this case the courts had imposed liability on an individual who believed he could not spread herpes as he did not exhibit any symptoms. Further in the case of John B. v. Superior Court , it was laid down “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.” Hence the involvement of the defendant with a group of persons at high risk of contradiction the disease or whose conduct makes it likely that they will contract the disease, can be charged under constructive notice of the contagious disease. This will vary from case to case.
Negligence: Passing the three-fold conditions
Moving on to the application of negligence. The jurisprudential concept of negligence does not have any precise definition. In Poonam Sharma Vs Union of India , It was said that In strict legal interpretation, negligence is more than just a headless or careless conduct, either by omission or commission; it correctly denotes the complex concept of duty, breach and damage suffered by the person to whom the duty was owed. Negligence has 3 essentials: (i) duty of care, (ii) breach of such duty and (iii) damages resulted from such breach.
In the beginning of 20th century courts have found individuals liable for the damage or harm caused by their negligent act of spreading diseases. This was well established in the case of Billo v. Allegheny Steel Co. where Justice Maxey said “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 another decision this application of the law of negligence to infectious disease has been an promising one: “For over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others.” Torts liability for negligent transmission of contagious disease has existed for whooping cough, scarlet fever, tuberculosis and brucellosis.
- Duty Of Care
Duty of care means a legal duty rather than a mere religious, moral or social duty. Applying tort law to contagious and infectious disease is not a new idea. Early tort law cases recognize great concerns for livestock, extending negligence liability towards the owners. Courts have further applied this principle to humans also. For example, the courts in a 1910 case, Hendricks v. Butcher, have established a duty of care for people infected with smallpox not to spread their infection. In the given case it was said that “We have no hesitancy in holding that any one afflicted with the disease of smallpox, which is known by every one to be a highly contagious disease, owes to every one the duty to so conduct himself as not to communicate this disease to them after he becomes aware that he is afflicted with it.”. 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 therefor, in the absence of contributory negligence….” as said in Kliegel v Aitken.
Courts have even applied negligence principles to sexually transmitted diseases also. The tort of negligence doesn’t punish a person according to the transmission rather the failure to take reasonable care. So long as reasonable standard of care is taken he cannot be held liable under negligence. For instance in Doe v. Johnson, it recognized claims for negligence against a party, A, who knew his serostatus and that his sexual partner had sex with others, but neglected to inform his partner of his infection. Duty also depends on reasonable foreseeability of injury. If at the time of the act or omission, the Person could reasonably foresee injury to the plaintiff, he owes a duty to prevent the injury and failure to do that makes him liable. Hence if a person knows he or she possesses or may possess a highly infectious disease and sees that he can readily foresee the danger of communicating it to others. As a consequence, he may be deemed to take reasonable precautions to avoid such transmission.
(Ii) Breach Of Duty
After the plaintiff shows that the defendant owed a duty of care, to successfully claim for negligence he needs to show breach of duty. Breach of duty has been defined as non- observance of due care which is required in a particular situation. The standard to decide this is of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonable or a prudent man, there will be no negligence. A breach of duty is seen when a infected person leaves their house knowingly or even suspecting that they suffer from the disease.
This standard of care required is a matter of law and varies according to different circumstances. A man traversing through a crowded thoroughfare with edged tools, bars of iron must take special care that he does not hurt someone while he carries the same[1]. Similarly in this situation a person having symptoms of a deadly virus or possessing the virus itself should be bound to follow precautions by staying at a safer environment so that he doesn’t affect anybody in his surroundings.
Element of causation
Causation in such cases may be the hardest element to prove. It is much easier to trace causation for cases where the mode of transmission may be direct contact or through body fluids. In case of an alleged transmission, the plaintiff must prove that the particular defendant was the original source of transmission. Proving this would require experts in the field who could determine the exact source of the disease. This would examine the number of people the transmitted victim came in contact with ,places he visited, details of medical records and travel history. This may cause hindrance determining the liability but it isn’t impossible.
- Damages
Lastly the condition of damages suffered by the plaintiff. Damages include pecuniary losses caused due to high medical expenses and physical suffering and pain which may ultimately lead to death of an individual.
Conclusion
The problem of Corona Virus is not going away soon. Transmission rates are rising alarmingly, there are been a number of cases where people are knowingly spreading the disease. It is time to address this problem under tort law because of its flexibility to handle personal wrongs for centuries. Therefore, It is responsibility of each and every person to act in a prudent manner when he or she knows that they have been infected or likely to be infected with the disease.
[1] Ratanlal & Dhirajlal, The Law of torts, 482 (27th edition LexisNexis 2016)
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