Covid-19: A Class Action against Patient Zero
by Nicholas Navaron Chula ~ 22 September 2020
Nicholas Navaron (Associate)
Tel: 603-6201 5678 / Fax: 603-6203 5678
A crisis is a litmus test of a person’s true nature. Some would falter, and some would prevail.
This much is true when the Covid-19 crisis started in the Hubei province in China. Some confined themselves within the walls of their residence, whilst others, escape.
The news of a Chinese national cheating health inspection by taking antipyretic medicine and dining at a Michelin star restaurant in Paris thereafter, thereby risking the further spread of the disease, raises a question – can you hold someone accountable for spreading a disease?
Can someone be held liable for spreading disease?
“A blade is not a weapon until your body turns it into one.” – T. B. Christensen.
A knife can be cutlery or a weapon, depending on the person manoeuvring its handle.
Even something as innocent as a pillow can be a weapon.
So, if a pillow can be a weapon, why not a disease?
If a person who, knowingly or at the very least, ought to have known that he is labouring under a disease (“prospective defendant”), but nevertheless puts himself in a position that could spread his ailment to others (“prospective plaintiffs”), should the prospective defendant not be held accountable for such action?
Well, yes, he could be held accountable. At least arguably.
The Court of Appeal in Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors  1 MLJ 567 held that in order for a person to be held liable for an act of negligence:-
“…a plaintiff must establish four ingredients. First, he must show that he was owed a duty by the defendant to take reasonable care. Second, that the defendant breached that duty, third, that the resultant breach caused the harm in question and fourth that he (the plaintiff) suffered damage that is not too remote.”
For the purpose of discussion, of all four ingredients aforementioned, one seems to be at issue – the existence of a duty of care. In this regard, it seems arguable that the prospective defendant has a duty of care to the others (who are in close proximity to him). After all, if a person commits a criminal offence under, amongst others, Section 269 of the Malaysian Penal Code for negligently doing an act which he knows or has reason to believe to be is likely to spread the infection of any disease dangerous to life, why not a ‘civil offence’?
Further to the above, according to the Court of Appeal in Loh Chiak Eong & Anor v Lok Kok Beng & Ors  1 MLJ 27, the imposition of a duty of care on a person must be fair, just and reasonable. In this regard, the Court of Appeal held:-
“ In the House of Lords case of Caparo Industries plc v Dickman (a case that we have mentioned earlier) Lord Bridge of Harwich summarised the principle on duty of care as follows:
What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable and that the law should impose a duty of a given scope upon the one party for the benefit of the other.
 In the House of Lords case of Barret v Enfield London Borough Council  2 AC 550 (HL(E)) Lord Browne-Wilkinson said:
In English law the decision as to whether it is fair, just and reasonable to impose liability in negligence on a particular class would-be the defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would be the plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered.”
It is arguably fair, just and reasonable to impose a duty of care on the prospective defendant since the prospective defendant ought to have taken preventive measures to contain the further spread of COVID-19 to the public.
As for the rest of the ingredients, one can ascertain whether the said ingredients have been fulfilled by assessing the factual matrix of each case. For example:-
- On the second ingredient, the prospective defendant who deliberately keeps himself at a close proximity with another while under the influence of COVID-19, and without subscribing to any protective measures (e.g. by wearing face masks or instructing and conducting meetings in confined spaces), can arguably be said to have breached this duty.
- On the third ingredient, the prospective defendant can be said to have resulted harm to the prospective plaintiffs if the prospective plaintiffs contracted COVID-19 after being in close contact with the prospective defendant.
- On the fourth ingredient, the failure of the prospective defendant in taking reasonable steps to contain said disease and the spread of such disease to the prospective plaintiffs are arguably not remote if the prospective plaintiffs contracted COVID-19 within a short period of time after meeting with the prospective defendant.
The next question would then be – can the prospective plaintiffs bring a class action against the prospective defendant?
If you are an avid fan of ‘Boston Legal’, ‘Suits’, ‘The Good Wife’ or ‘The Good Fight’, you would have come across the term, ‘class action’.
The said term gets thrown out rather generously on the screen, and for claims that could purportedly reach millions of dollars.
What is it?
Does it exist in Malaysia?
‘Class action’ is another term for ‘representative proceedings’. In this regard, parties sharing the same interest can sue or be sued in the same proceedings.
The right to commence an action as or against a class of persons or entities can be derived from Order 15, rule 12(1) of the Rules of Court 2012 (“ROC”), which reads as follows:-
“(1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun and, unless the Court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them.”
Some examples of persons having ‘the same interest’ in particular proceedings are as follows:-
- The plaintiffs in Agi ak Bungkong v Ladang Sawit Bintulu Sdn bhd  4 MLJ 204 shared the ‘same interest’ in claiming for native customary rights land at their respective communities.
- The plaintiffs in QB Khidmat Teguh Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd & Anor  8 MLJ 376 (“QB Khidmat Teguh case”) shared the ‘same interest’ as they are creditors who sought for the winding-up of the 1st defendant in that case.
What then is the test for Order 15, rule 12(1) of the ROC?
In the QB Khidmat Teguh case, Mohd Nazlan JC (as His Lordship then was) held that:-
“ Although all that this rule requires is the existence of ‘the same interest’, it is well established, that the test enunciated in Duke of Bedford v Ellis is equally applicable in local jurisprudence on representative action as decided by the High Court in Palmco Holding Bhd v Sakapp Commodities (M) Sdn Bhd & Ors v Sakapp Commodities (M) Sdn Bhd to the following effect:
The question that arises here is ‘what are the requirements to be satisfied by the plaintiff in order to succeed in a representative action?’ In Duke of Bedford v Ellis and others [1900-03] All ER Rep 694;  AC 1, Lord Macnaghten said, ‘given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent’. In Smith and Others v Cardiff Corporation  2 All ER 1373;  1 QB 210, the Court of Appeal held that to bring a representative action it must be shown: first, that all the members of the class had a common interest; secondly, that they all had a common grievance; and thirdly, that the relief was in its nature beneficial to them all. It is clear from Duke of Bedford’s case and Smith’s case that the plaintiff has to satisfy three requirements in order to succeed in a representative action. Firstly, the plaintiff and those represented by it are members of a class and that these members have a common interest. Secondly, the plaintiff and those it represents have a common grievance. Thirdly, the relief sought is in its nature beneficial to them all.”
Accordingly, a group of persons who contracted COVID-19 from a single person could arguably resort to a ‘class action’ against the said person to claim for, amongst others, compensation.
Whilst it is possible to bring a class action against a person for spreading COVID-19, the viability of bringing such action is very much dependent on the respective factual matrix of each case.