The Coronavirus or Covid-19 pandemic had made the world in a standstill. All government of the world had introduced a partial lockdown or a total lockdown.
In Malaysia, the government had introduced a partial lockdown called "Movement Control Order" or "MCO". Anyone who violates the rule he or she can be liable for a maximum fine of RM 1,000.00, or can be given a jail term of maximum of 6 months or both. This is the only practical way to break the chain for the virus to spread to others.
In Malaysia, it is not a total lockdown but you can go out to buy food or medicine, within the time limit given by the law.
Many people out there knows that the Covid-19 is a virus which can be transferred to human to human. A human can get the virus by touching some surface which was touched by another human being who got the virus. Covid-19 is a deadly virus and there is no vaccine found for now.
Main reason for this writing is to ask and explore in the law of tort to see whether can the government or the Ministry of Health / "MoH" be liable in negligence or does it owe a common law duty of care if both agencies failed to control the Covid-19 and causes harm, death or disability to the people. Can you make the government or the MoH liable to pay daamages?
In a case called Master Brisbane Itang v Robinson Lee & Ors [2014] 1 CLJ 726, a Court of Appeal case, a decision delivered by Hishamudin Mohd Yunus JCA dismissing the appeal. He was of the opinion that the government or the MoH got no duty of care to ensure that the person who got infected with a dangerous virus, the Japanese Encephalitis or "JE" virus, should be given the immunisation at the soonest as per government circular, to avoid the spread of the virus to a pupil aged 10 boy, a plaintiff in this case.
The 10 year old boy got the JE virus when he was schooling near to a pig farm. The 10 year old boy believed, got the JE virus from the pigs which can be transmitted to human beings via the culex mosquitoes.
As a result of the JE virus the boy had suffered brain damage, permanent disability and required a lifetime of care.
The boy put forward an argument that the government and the MoH owes him a duty of care whereby there was a government circular to say that people in that infected area should be given immunisation to avoid the JE virus. The government or the MoH did not so for the 10 years old boy.
The court was of the view that if a duty of care is imposed in these kind of cases it has a far reaching implications and would open the floodgate of litigation against the government or the MoH.
Back to our recent problem of Covid-19 now, can you file a civil suit against the government or against MoH for not to putting down the deadly virus soon which can cause serious harm to a healthy person or even death?
Time to develop the law.
What if the Covid-19 is still a threat to the common person, he or she is given instructions by some government departments or private institutions to work, and get infected during the course of work, can he or she suit for damages, breach of duty of care? My view is that you can do so. Knowing the virus is a deadly one and so far there is no proper medication found in the medical profession, you are putting someone at risk that might course serious damage financial or death to the person.
Something to think, people. Interested, please call me.
Ramu
