Deliberate or Reckless Transmission of COVID-19 May Have Severe Legal Ramifications

The abrupt outbreak and negative impact of the COVID-19 disease has taken the whole world by surprise, prompting several role players and government leaders to implement drastic measures to curb the spread of this fatal disease. With so many restrictions affecting the movement and interaction of people, it will not be surprising that, for many people, engaging in any legal battle is the last thing in their minds. It will then not be surprising to see some “interesting” COVID-19 cases flocking in at a later stage, as people may well have grounds (at least in theory) for suing and, some for laying criminal charges against individuals who deliberately or recklessly infect them with the virus.

On Wednesday, 24 March 2020, it was reported that a salon owner from KwaZulu-Natal, Ladysmith, breached the rules of home-quarantine and went on with his business as usual at his salon and thus exposing his employees and customers at risk of contracting the virus. It was also reported that criminal charges (for attempted murder) were laid against him, but postponed due to the national lockdown of 21 days. In this example, any customer who visited this relevant salon and thereafter got sick and tested positive for COVID-19 may potentially have a delictual claim against him. The potential claimant will have to prove that the salon owner’s wrongful conduct which was either intentional or negligent (fault) has caused harm. Although all these elements will need to be proven, the most likely challenge in succeeding with such a claim will be to prove the element of causation i.e. that the owner caused you to be infected with the virus. This is due to the fact that transmission of the coronavirus is very easy and, unlike most viruses, does not need the exchange of bodily fluids, blood contacts, etc. Albeit this being a probable challenge in such claims, the surrounding circumstances will dictate the outcome of each particular case. If for example, a potential claimant had recently tested for a COVID-19 and his results were negative, subsequently goes to this salon and thereafter falls sick and tests positive for the coronavirus and he proves that he has not been exposed to any of the high risk areas/individuals (abroad and locally). If all factors are considered holistically and, on the balance of preponderance, show that he probably contracted the virus at the said salon, the owner may actually be liable. The success or failure of the claim will, like in any other claim, be determined by the relevant prevailing circumstances.

Not many people will be inclined to litigate on such matters, particularly in the South African context, due to various reasons – one being the narrow prospects of success or the potential defendant not having a financial muscle to compensate the claimant. With that said, some who are/will be infected may lose a lot of things as a consequence of being infected, for example: medical bills; losing out on business (especially if self-employed); long lasting effects on health which may require future medical intervention; loss of amenities of life, etc. This may prompt people to claim from the potential perpetrators. Also, what may motivate potential litigants is that most people who are likely to breach the government’s quarantine regulations are the rich/affording people – because home-quarantine is more suited for the rich. Claimants are ordinarily inclined to sue affording people because they are able to either make settlement payments or pay damages as ordered by the court. Thus, one cannot completely shut the possibility of COVID-19 claims being instituted.

Whilst criminal charges are the most likely COVID-19 legal cases for the individuals who disobey the State’s regulations, there exists a possibility of civil claims against those who intentionally or negligently place the lives of others at risk. It then becomes pivotal that each victim of the coronavirus takes full responsibility and ensure that they, by all means possible, avoid infecting others and they must strictly follow the rules as imposed by the government.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney