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Intentionally coughing on someone is despicable and appalling and clearly a tort. To do so during this pandemic is criminal. At the very least, it puts the victim in fear of contracting a deadly contagion even if the perpetrator is not themselves infected. That is civil assault. Civil assault is a tort committed by an act which puts another in ‘imminent apprehension of immediate bodily harm’. In other words, puts someone in fear of physical harm (or harm to property).
An intentional breach of duty can make a ‘tort-feasor’ (the one that commits the tort) liable in criminal law and in civil law. The defendant would be liable not just for the general damages that result but also for punitive damages on top of those otherwise awarded in a civil proceeding not to mention the criminal court.
So where a person knew they were infected with the CCP virus, or at least had reasonable reasons to suspect they were infected, and intentionally coughs or otherwise acts in a way which could cause infection of the other person, it would be a crime and a civil tort of assault will have been committed.
A tort (latin for ‘wrong’) is based on the idea that the law implies a ‘duty of care’ to others we interact with in society. Most duties derive from common law, such as the duty to not to cause injury to another or damage property without lawful justification. Some duties are codified in written law, such as the duty of an adult to protect a minor under their care.
Once a duty is established in law then the court would determine if there was a breach of that duty. Like misrepresentation, a breach of the duty care could be classed as intentional, negligent or innocent.
Negligent breach of duty occurs when a person causes the breach where an act was done without intention to injure but was thoughtless, careless, reckless or was done in flagrant disregard for the safety of others and it was reasonably foreseeable that the act would result in injury or damage to property. It doesn’t matter that the exact type of injury or the amount of damage caused was foreseeable or not.
A person is deemed to be responsible for the results of their actions. To say, “I intended to shoot him but I didn’t intend to kill him.” is not a defence to a murder charge. The ‘egg-shell’ skull principle applies and a person ‘takes his victim as he finds him’. So, to push someone to the ground is assault, but if the person dies as a result because of a hidden physical condition triggered by that assault, then the charge would not be assault but manslaughter.
An ‘innocent’ breach of the duty of care, (as opposed to intentional or negligent), and will not attract the penalties associated with an intentional or negligent breach. In layman’s terms ‘innocent’ is defined based on what a ‘right-thinking’ person would deem as reasonable.
Such would be the case where a third party, looking at that action of the defendant, might say to themselves “I might have done the same thing in that situation”. Giving a person a ‘friendly pat on the back, as example, is technically an assault, but it has been a common custom in our society so would not be considered an unreasonable action from a third party perspective and so would not be considered an assault.
To win in tort law, there must be actual damages that were caused by the tortious act. If the victim does not get infected, then there can be no damages awarded for damage not caused. However, an award of general damages for the shock and fear of infection would be in order and because of the grievous nature of the offence at this time of pandemic, punitive damages would certainly be awarded.
We all have a duty of care to each other to not pass the CCP virus to another. Doing so intentionally is a crime and a tort in law that could lead to serious injury. Coughing on another is clearly bad form, but doing so intentionally is a crime and a tort, especially now with the virus in full swing. We are all at risk during this pandemic and need to co-operate with reasonable requirements of self-isolation to avoid the spread of the virus. It is not only the right thing to do ... it is a duty we all have.