As the Coronavirus (COVID-19) spreads across Canada, new legal questions about this lethal illness are going to arise. For example, what happens if a person knows that they have COVID-19 and fails to take the necessary precautions, with the result that they spread the infection and infect others? Can they be sued by the people they infect?
The most likely legal cause of action in these circumstances would be negligence. The four requirements to establish negligence are:
1. A duty owed by the defendant to the plaintiff;
2. A breach of that duty;
3. Damages (illness) experienced by the plaintiff; and
4. Causation of those damages by the defendant.
The breach of duty requirement is often most difficult to establish in a negligence claim. However, that element would appear to be obvious if a person knew that they had COVID-19, ignored advice to isolate themselves, and endangered others. The biggest challenge in such a case would likely be proving that their actions were the cause of the other person’s illness.
It is likely that a person who contracts COVID-19 through community spread will not be able to identify the person they contracted the virus from. However, if they could, they may succeed in a negligence claim if:
1. They became ill – mere exposure to the virus would not be sufficient;
2. The source of the virus knew, or should have known, that they were contagious; and
3. The source of the virus was careless in not staying home.
There would likely be several “causation” hurdles in bringing a successful case even in these circumstances.
1. The potential delay between exposure and the onset of illness;
2. The likelihood that the plaintiff was out in the community and therefore exposed to potential COVID-19 carriers on more than one occasion;
3. The possibility that the plaintiff was exposed to the virus from undiagnosed but contagious carriers. This is a more recent discovery about COVID-19.
These difficulties may be less challenging if several people who attended the same place contracted the virus and had little other potential exposure to it. However, even in these circumstances, establishing “causation” would not be certain.
Perhaps some lessons can be learned from prior litigation arising from claims based on the transmission of HIV/AIDS and other sexually transmitted infections. Several such lawsuits were brought in the 1990’s and early 2000’s. When plaintiffs in these lawsuits lost, it was often because causation was hard to prove.
We have seen on the news that not all Canadians are following instructions from the various levels of government to stay home unless there is a legitimate pressing need to go out, such as grocery shopping. Anyone experiencing symptoms that could be an indication of COVID-19, a cough or fever, have been instructed to self-isolate and not leave their house unless it is to get medical attention. As community spread continues across the country, we are seeing cases of people with symptoms ignoring this directive.
Anyone who can establish that, on a balance of probabilities (greater than 50%), they contracted COVID-19 from someone who ventured out into the public when they knew, or should have known, that they presented a COVID-19 threat to others, may be able to sue them for damages.