[OPINION] A legal and moral duty to stay at home

The mandatory orders on self-quarantine, social distancing, and isolation at this time of pandemic do not seem to discourage most people from gallivanting and from limiting close contacts. We have for example a legislator who, despite awareness of the admonitions and even the law, attended a party and roamed the premises of a hospital. Not lost in the narrative is that the legislator already manifested symptoms of COVID-19. Apparently, a group of lawyers are now readying cases against him, including one for criminal liability under Republic Act No 11332. 

Criminal violation nevertheless requires a higher standard of proof for conviction. Also, criminal statutes tend to push people to go underground. In our example, one can hide the symptoms and later argue lack of knowledge of being afflicted with an infectious disease. Criminal convictions moreover require the cooperation of the prosecutorial arm of the government. What if the prosecutors treat transgressions with “human compassion?”

Would knowledge then of negligence liability rather encourage people to stay at home? One can make an argument that a person with suspicion of having COVID-19, and who exposed others to the infectious disease by failing to abide by self-quarantine protocols, has committed a harm. Those harmed then have the right to be compensated by the perpetrator. Here, suspicion of having the disease encompasses whether one is asymptomatic but exposed to a positive, or symptomatic but untested or awaiting the results of the test. This is not to mention factors such as the wide-ranging societal effect of the person’s action – exposing the greater populace to risk of infection, and the complacency and moral reprehensibility of unreasonably risking other people’s lives, especially those of our front liners and health care workers. (READ: Duterte extends Luzon lockdown until April 30)

A plethora of cases supports the argument that “[o]ne who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actions” (Duke v Housen). One case for example upheld a claim for damages by a family infected with smallpox (Hendricks v Butcher). Other cases involve the infectious disease of tuberculosis (Earle v Kuklo), typhoid fever (Kliegel v Aitken), and whooping-cough (Smith v Baker). Another further goes on to state that “[a] person has a duty to exercise reasonable care to avoid injury to others whenever he/she is ‘placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person’” (R.A.P. v B.J.P.). While these cases were decided in the United States, they hold persuasive effect in decisions of Philippine courts.

We then have the legal and the moral duty during this pandemic to keep away from others, not only to protect ourselves, but also and more so to protect them from infection in the event that we are carriers of COVID-19. Our breach of that duty, and a finding that our breach is the proximate cause of the harm, will make us liable for damages to the one who sustained same. In our example, losses suffered by the hospital or by the health care workers forced to quarantine or treat themselves, if infected due to the breach of the duty, may then be claimed from the legislator. This is not to mention claim for the mental stress brought to the doctors, nurses, or other patients. (READ: Braving a pandemic: Frontliners battle fear to confront the novel coronavirus)

Whether the cause of action for damages are to be based on Articles 20, 21, or 2176 of the Civil Code calls for a separate discussion. Whether a damages claim may successfully be proven in court, especially considering the challenge of proving proximate causation, is also another issue. Suffice it to say at this point that Article 19 of the said code, notwithstanding any imperative dictated by any penal statute, provides the general rule governing the conduct of human relations. Thus, “[e]very person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.” Violating quarantine protocols, concealing presence of symptoms, or lying about travel history, gathering in groups, and going around unnecessarily at this crucial time of the pandemic do not seem to be in accord with this principle.

Indeed, while we may have our own personal reasons for being out and about even if we are carriers of COVID-19, such as accompanying someone about to give birth, we need to balance this with what will be beneficial in the long run for everyone, including ourselves. Certainly, we do not want to arrive at a situation in which our health care workers have significantly dwindled because they have been quarantined; or worse, have abandoned their posts, such as what happened in Africa during the Ebola outbreak, for fear of dying from infection.

So, will you stay home? – Rappler.com

Pelagio Palma Jr is a lawyer in the Philippines and in Australia. He has clerked for two justices of the Supreme Court, and is now in the private sector and in the academe.