Liability Under Negligence for Transmitting Coronavirus

As coronavirus spreads across the world like a wildfire and with WHO declaring it as a pandemic[1], social distancing has become the new black. Many governments have imposed restrictions on movement by declaring complete lockdown and ordered people to maintain social distancing; in a few cases, people were asked to self-quarantine. Despite the order, there are many reported cases of coronavirus carriers who put other individuals at risk due to their irresponsible conduct. 

In one such instance, a man who was tested positive after returning from America attended a wedding. Instead of self-quarantining himself, he travelled through train to Solapur and came in contact with more than 1000 people at the wedding, exposing them at risk.[2] Likewise, an older woman who was supposed to self-quarantine at home violated those orders and travelled from New Delhi to Kolkata. She put the lives of her family member and other people around her at risk. Later, her children were tested positive for COVID.[3] Similarly, two people who were tested positive for COVID travelled to the Jeju province in South Korea. Due to their incautious behaviour, the local authority had to shut around 20 businesses, and over 90 residents were quarantined.[4] 

There have been several such scenarios where individuals failed to follow social distancing in public places and self-quarantine measures. More often than not, these actions have been deliberate and responsible for transmitting the disease to others. Under Section 269 and 270 of the Indian Penal Code[5], a person can be held liable for the negligent or malignant spread of a deadly disease to others. However, a question might arise as to whether a jurisprudential civil liability can arise from the negligent spread of the disease. Could a person be held accountable for committing negligence and pay the compensation for the damages incurred by the claimant? 

When Does Civil Liability Arise? 

There exists a thin line between civil and criminal liability. In a line of decisions, courts have held that it is not the damage incurred but the degree of negligence that determines respective liability. The degree of wrongdoing has to be higher in criminal liability than in civil. If the degree of negligence is gross and potentially life-threatening, the person will be prosecuted under criminal law. Nevertheless, not in all criminal cases, the plaintiff is awarded monetary compensation. However, the claimant can sue under civil liability to claim monetary compensation if he or she individually incurs damages due to the defendant’s negligence and if the act does not violate any right in rem of any other person. 

Another factor that plays a crucial role in establishing liability is the intention of the person causing injury. Proving the presence of the element of men’s rea is essential to charge someone criminally for negligence. Criminal liability arises when there is a deliberate intention to subject others to risk of getting harmed. Nevertheless, under negligence in civil law, a person who, without any intention, causes damages to others, in this case, transmit the disease, can still be held up to pay monetary reparations.[6] 

What is Negligence? 

A person can be held liable for the tort of negligence when he or she takes action, which a reasonably prudent person would not. The act can be described as a situation where a person fails to behave with the level of care that any ordinary person would exercise under the same situation. However, a person cannot be held accountable for every careless act that causes damage. A person can be as negligent as he wishes to unless he owes a legal duty to care. The claimant is entitled to claim compensation if the defendant had a legal duty to act reasonably, which he failed to, and caused harm.[7] 

To sue for negligence, the claimant has the onus to prove the conventional list of essentials that the person responsible had the (a) legal duty to take reasonable care (b) that person breached that duty, and as a result, (c) the claimant incurred non-remote damages.[8]

(a) Legal duty of care 

To impose a duty of care, one has to prove that the defendant had a legal responsibility to take reasonable care of his actions. One has to determine whether the harm incurred could have been a reasonably foreseeable consequence of the defendant’s conduct and whether that person had a legal duty to not act in that manner. In the case of COVID, every person has a legal duty to follow the regulations and to act reasonably to avoid infecting others. The constituents of a reasonable behaviour in times of a catastrophe are stated under Section 3 of the Epidemic Disease Act, and whoever does not obey any regulations or orders made by the government under this Act or shall be punishable under Section 188 of the Indian Penal Code.[9] 

In a notice from Union Home Secretary Ajay Bhalla mentioned that each individual is bound by a duty to follow the government-imposed measures, and any person violating these measures would be held liable and proceeded against as per the provisions given under Section 51 to 60 of the Disaster Management Act, 2005.[10] 

From the first lockdown’s commencement, each individual is under obligation to follow preventive measures declared by the government. To name a few, a person should not attend any social gathering and follow social distancing measures. A person who returns from abroad has a duty to self-quarantine for 14 days. But there have been some cases like a person within 14 days of returning from France attended his marriage with 1000 guests in Telangana. Despite the Chief Minister’s order not to invite more than 200 people and isolate after returning to India.[11] Any prudent many in such a situation are expected to avoid meeting anyone and thus not put others in danger as well and contacting doctors or Aarogya Setu app if any symptoms show. 

(b) Breach of duty 

After establishing that there exists a legal duty to take care, the claimant must prove the breach of the same. A person who knowingly or unknowingly exposes others to a substantial risk of loss breaches the duty to care.[12] In the case of the COVID-19 situation, this breach occurs when a person tested positive or has symptoms of COVID violates his legal duty by visiting public areas instead of quarantining himself. As seen in the case mentioned above, the person who attends the wedding in Solapur breaches his duty to follow regulations and puts others’ lives at risk. As the disease spreads with ease, it is highly likely that others get infected quickly. Hence, any ordinary person in such a situation would avoid going to public establishments and enforce general preventive measures. 

However, the defendant might argue that his or her conduct was in a given line of regular practice. Nevertheless, the fact that his act complied with the general practice does not mean he took reasonable care. In the account of the present whammy, following the regular conduct can amount to negligence.[13] 

Causation in Fact

Even if the claimant succeeds in proving the above two essentials, the claimant shall also draw a causal link between the defendant’s breach of duty and the cause of damage. A proximate and a direct relationship must be established, and the act must directly affect the claimant whom the person alleged to be bound to take care of.[14] The negligent act committed must ipso facto be the primary cause of the damage.

However, in the case of coronavirus, it might seem impossible to link the causation to one person as the disease can spread easily, and the presence in public can risk the person to contract it. It will not be easy to pinpoint the disease’s cause on to one person as the virus can remain on a surface for as long as few hours to few days. Furthermore, some positive tested people are asymptomatic, which means that they will not show any symptoms and can unknowingly transfer the virus to others. In such a circumstance, it will not be easy to prove the liability. Hence, if the proximity between the defendant and the source of the harm, in this case, the disease transmitter is far-fetched, he cannot be held liable.[15]

(c) Damages 

The final element to be proved is the existence of a legally denoted damages. It is not enough to prove a lack of reasonable care exercised by the defendant where he owed a duty to care; some real damages must be incurred by the claimant due to that misconduct. If there is direct proximity between the breach of the duty and the damages caused by that, then the person is liable to pay compensation for pure economic loss or psychiatric damages. However, the defendant can only be held liable for the damages that could have reasonably foreseeable through their actions. In the case of COVID, the prominent damages can sue for are monetary loss cause of medical bills, severe health conditions, and the psychiatric injury incurred.[16] 

Conclusion

In conclusion, in the times of this unanticipated situation, every individual possesses a legal duty to abide by the regulations and instructions given by the government. Each person must retain the act of social distancing. Even though there exists no clear response from the judiciary on this jurisprudential probe, one can resile to accrue compensation for the damages caused if the liability is established. However, proving proximity between the defendant and the damages done might not be easy, but an individual can successfully sue if a particular person is solely responsible for transmitting the disease. Even though the strict measures imposed during lockdowns are being relaxed now, people still have a duty to practice necessary preventive measures not to transmit the disease until COVID becomes past.


[1] WHO notice on COVID-19, available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020

[2] Kalyan man who tested positive attended wedding came in contact with over 1000 people, says the report, available at https://www.financialexpress.com/lifestyle/health/covid-19-kalyan-man-who-tested-positive-attended-wedding-ecam-in-contact-with-over-1000-people-says-report/1903514/

[3] A woman told to self-quarantine takes Delhi-Kolkata Rajdhani; tests positive available at https://www.hindustantimes.com/india-news/5-of-family-who-tested-positive-for-covid-19-travelled-in-2-trains-socialized-and-went-shopping/story-KF1kUJPTpY3tR4rqZAAq2N.html

[4] South Korea’s Jeju Island is suing two tourists who visited while having coronavirus symptoms available at https://edition.cnn.com/travel/article/jeju-island-south-korea-coronavirus-lawsuit-intl-hnk/index.html

[5] Indian Penal Code, 1860.

[6] Professional Misconduct or criminal negligence: when does the balance tilt? Available at https://ijme.in/articles/professional-misconduct-or-criminal-negligence-when-does-the-balance-tilt/?galley=html#six

[7] Le Lievre v Gould [1893], 1 Q.B. 491 at 497. 

[8] Winfield & Jolowicz on Tort (19ed, 2014).

[9] Epidemic Disease act, 1897.

[10] Ajay Bhalla, Home Secretary of India’s letter available at https://www.mohfw.gov.in/pdf/SecysMHLetter2932020regconsolidatedguidelinesandmigrantlabourers.pdf

[11] Coronavirus outbreak: A quarantined man marries; 1000 attend available at https://timesofindia.indiatimes.com/india/coronavirus-outbreak-quarantined-man-marries-1000-attend/articleshow/74739865.cms

[12] Blyth v. Birmingham Waterworks Co., (1856) 156 ER 1047.

[13] Lloyd’s Bank Ltd v Savory (1933) A.C. 201.

[14] Donoghue v Stevenson (1932) A.C. 562. 

[15] Sutradhar v Natural Environment Research Council (2004) EWCA Civ 175.

[16] Coronavirus Negligence available at https://blog.petrieflom.law.harvard.edu/2020/04/14/coronavirus-negligence-liability-for-covid-19-transmission/

Khushi Totla from NMIMS Kirit P. Mehta School of Law

Find here here

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