The Duty of Care and the Coronavirus
In legal terms, the duty of care is an essential part of any tort case, be it a personal injury claim, medical malpractice, or product liability. A duty of care is essential to know because it determines the extent to which a defendant in a tort case may be liable for negligent acts taken towards a plaintiff. But what does it mean to be beholden to a duty of care in the age of the coronavirus?
The duty of care refers to the level of legal responsibility an individual has towards another person, with respect to their own actions. To hold someone accountable in a tort case, the plaintiff must prove that the defendant violated a duty of care towards them, which resulted in an alleged injury. If they cannot prove a breach of a duty of care, that defendant cannot be held legally or financially liable for their actions.
The extent and nature of a duty of care is dependent on context, and changes heavily depending on the relationship between the plaintiff and the defendant. For example, a doctor has a duty of care to take care of their patients but does not have that same duty towards random people they meet while walking around in public. Similarly, a shopkeeper has a duty to maintain safe conditions on, and sometimes around, their property, but is not responsible for injuries that occur on the other side of the street. However, typically, the only duty a regular person has to the people around them is that they should take ordinary care to not do anything that is likely to result in harm to someone else.
However, these rules for handling tort issues assume that people simply going about their regular business are not going to hurt anyone. With the coronavirus present, however, even regular activity that is not intended to harm someone else can still cause harm through incidental infection. Failing to wear a mask in public, failing to wash one’s hands or refusing to maintain social distancing can all result in the spread of the coronavirus, potentially resulting in severe illness and death for anyone unfortunate enough to be infected.
The question, then, is this: can someone be held legally liable for breaching a duty of care by spreading the coronavirus? To understand that, it would help to clarify to what extent average citizens have a duty to ensure they are not spreading the disease to others. For example, does someone have a duty to always wear a face mask in public if they believe they may be infected with the coronavirus? Does that duty change if they have been tested positive for COVID-19, versus whether they simply show certain symptoms associated with the disease? What about people who believe they may have been exposed to the virus, but show no symptoms of illness themselves?
Obviously, the answer to this question is a lot easier if someone is intentionally spreading the virus (such as by deliberately coughing in someone’s face or spitting on their food). However, when it comes to unintentionally spreading the disease, it may be much harder to prove a breach of a duty of care. First, you would need to demonstrate the person knew, or should have known, that they were likely infected with the coronavirus. Second, you would need to prove they did not take ordinary care to prevent the spread of the virus, such as by coughing without covering their mouth, or by doing something like shaking your hand after coughing in their hand. If you could do that, you would then need to prove you got the coronavirus from them, specifically, which would be hard to do in a pandemic where the coronavirus is ubiquitous in the general population.
Nevertheless, if you believe you have been infected with the coronavirus because of someone else’s negligence, you should seek immediate legal counsel. The sooner you get legal representation, the sooner you can work on recovering for the harm you have suffered.