Organisers of ’super spreader’ events could face legal action
DURBAN: Organisers of events which later turn out to be ’’super spreaders’’ of Covid-19 could face legal action.
Using the Ballito Rage Festival as an example, where two people knew that they had tested positive for the coronavirus, Mthokozisi Maphumulo, associate and litigation attorney at Adams and Adams, said it then becomes relevant to look at whether there may be any legal recourse for the victims against the organisers.
He explained that each matter is decided upon its unique facts, and there is no blanket approach for the cases.
"Equally important, consolidation of court cases stemming from the same super spreader event is possible. Victims of Covid-19 who contracted the virus at these events may have delictual claims against the responsible organisers and/or relevant stakeholders.
’’The success of each case is bound upon its unique facts. The victim will have to prove, on the balance of prevalance, that the wrongful and negligent conduct of the organisers caused him or her harm – health wise and/or monetary wise," he said.
Maphumulo explained that the requirements listed have well established legal principles and tests applicable in proving them.
He said one of the major stumbling blocks in potential legal action relating to Covid-19 has been the inability to trace how the person contracted the infection, given the nature of the virus.
"This makes it almost impossible to prove the factual causal link," he said.
He said in cases of super-spreader events, however, the situation may be slightly more favourable to the victims, and the victims may be able to prove the link with less difficulty.
"In this regard, the victim may use circumstantial evidence and prove the link on the balance of prevalence. The circumstantial evidence in this instance would consider all the relevant facts and factors such as the cautionary steps employed by the organisers and whether they were in line with the Covid-19 regulations and protocols, such as floor markings, social distancing, the number of people at the venue, compliance officers for events where alcohol was served, temperature checks at the entrance and whether necessary enquiries were made to find out if the attendees were positive or had had close contact with the infected person," he said.
Maphumulo said, furthermore, with the contact tracing showing the number of attendees who got infected, this could be part of the circumstantial evidence – the more attendees testing positive, the easier it became for the victims to prove the link.
"These are some of the factors for consideration and the facts of the case will dictate whether there is a need for additional factors.
’’Lastly, in some cases it may not be justifiable to legally hold organisers solely responsible and, therefore, the victim may need to ‘shoulder’ some blame and, thus, the blameworthiness will be apportioned, accordingly," he said.
He added that whilst the conduct of the organisers may attract criminal proceedings in line with the Covid regulations, and thus be required to pay fines or face imprisonment, the victims may be able to claim for damages from them.
The possible heads of damages claimable include: past and future medical expenses; general damages; past and/or future loss of earnings or earning capacity.
The applicable head of damages in each case will be informed by the merits of the matter. There may also be claims for loss of support, where appropriate.
Maphumulo said the festive season may have passed, but the legal action may haunt the responsible organisers of super spreader events.
He said these events did contribute heavily to the spread of the virus, culminating in the second wave and the subsequent stricter restrictions.
“These cases, if brought forward, will probably become litigious and therefore may take long to finalise. In some instances, the parties may agree to settle, and this helps shorten the duration of litigation and lessen the legal costs involved.
’’Also, litigation is naturally costly, and most victims may be unable to afford to litigate. To this effect, it is pivotal to enquire as to the options available to fund litigation, especially for those who cannot afford litigation.
’’Further, the compensation amount will be bound upon the facts of the matter. Those who genuinely believe they may have legal cases must take the necessary steps timeously,” Maphumulo concluded.