#BTEditorial – Can Gov’t be sued for recent COVID-19 deaths?

Our Constitution entrusts a duty of care on Government for the protection and safeguard of the lives of Barbadian citizens. Indeed, the “neighbour principle” of the celebrated Donoghue v Stevenson case (1932), indicates that if it is reasonably foreseeable that a defendant does something negligent and there is risk that a claimant could suffer injury or harm as a result, then that defendant is liable.

Legal practitioners often state that where there is a right, there is a remedy (Ubi jus ibi remedium). And this holds true whether the perpetrator of a wrong is an individual, company or Government. And since Government is a legal person, one should never view it as some abstract entity that cannot be touched. There are two situations that in keeping with our democracy and individual rights, that need ventilation, even in this age of COVID-19. Indeed, COVID-19 makes venting even more necessary.

There are Barbadian families today mourning the loss of loved ones as a consequence of being infected by the coronavirus. Those loved ones cannot be returned to their families but the question has been raised in several quarters as to whether anyone is civilly liable for the deaths through negligence. And there is a school of legal opinion that says aggrieved parties can seek redress if their situation fits into that tenet of Ubi jus ibi remedium. Thus, by extension, has Government been negligent in its duty of care to its citizens?

Much has been said about Government’s failure to close Barbados’ borders, especially in the month of December but not restricted to those 31 days. Many in the medical field have gone on record advocating temporary closure of our borders but this expert advice has been ignored. Comparisons have been made with other countries on that score, and in a situation where countries like New Zealand, among others, have been quite restrictive with visitors. Additionally, questions have been raised about why wasn’t travel restricted specifically from England where the British COVID-19 variant was creating havoc. Government made its decision as others might have done similarly in tourism dependent nations. Many perceived this liberal decision to be one of damned if you do and damned if you don’t. But some have now added to that – dying because you did.

Government as a legal person is under an obligation to exercise a duty of care to its citizens. If it has a policy for the protection and safeguard of its people, can it be sued if negligence is attached to the implementation and execution of that policy? On the occasion of December 31, 2020, there were 383 confirmed positive tests for COVID-19. On January 31, 2021 – a month later – those confirmed cases had skyrocketed to 1 545. Deaths which had been at seven from March 2020 until the end of that year, have leapt to 14 in one month. The presence of COVID-19 in Barbados is not the fault of the Government but given the nature of the pandemic and measures being taken by other countries to mitigate its dangers, the question remains: has Government been negligent in its implementation and execution of policy to mitigate the spread of COVID-19? And if so, who should be the individual or individuals named in any action brought against the state, especially by families who have lost loved ones within the past month or might do so in months to come? There is the suggestion that plaintiffs should look no further than the office of the Attorney General and the Chief Medical Officer.

One might ask the question, was Government aware of any threat to existing policy or a need to ramp up implementation and execution, especially with respect to our borders and/or restricting travel from Britain? We will not attempt to speculate on what Government might or might not have known, but we recall last December there being a curfew that effectively cancelled major Old Year’s Night celebrations and a statement by Minister of Health Lieutenant Colonel Jeffrey Bostic with respect to 10 new cases, five of which were Barbadians not linked to visitors. He noted then: “In other words, the five cases suggest that there is some local transmission.” While the term “community spread” did not pass from Mr Bostic’s mouth then, Barbadians can determine for themselves the difference between “local transmission” in December and “community spread” weeks later in January.

We must stress that this is no engagement in a blame game. After all, that is a direct offshoot of Government’s obligation of its duty of care. This is but an acknowledgment that even in a pandemic, citizens still have the right of legal recourse if there is a possibility that state negligence might have contributed to a bad situation or made a bad situation worse.

And on the question of rights, Government’s decision to allow some supermarkets to open and disallow others, could be construed as an infringement of the latter’s rights against actions that are discriminatory or offend citizens’ right to equality of treatment under the constitution. Even when recent emergency legislation is taken into consideration. Barbados’ Shops Act refers to “shops” only, there is no reference to mini-marts, supermarkets, and the like. Just shops! Therefore, one must ask, has Government indeed infringed the rights of some owners of shops in Barbados to the benefit of others, since under the law, whether big or small, located in rural or urban Barbados, they all are classified as shops. It must be noted that the Administrative Justice Act makes provision for decision-makers in Government to provide reasons for their decisions, especially when a decision like the present one of shop selection seems arbitrary.

We should never for one instance believe that individual rights go through the window or that laws can be sidestepped, misrepresented or ignored because of a national crisis. To do so, would be to rubberstamp another grave crisis engineered by our political leaders.