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COVID Spread in Thailand and the Concept of "Proximate Cause"

Transcript of the above video:

As the title of this video suggests, we are discussing COVID and some of the factual circumstances that are being reported on this and we are also going to be discussing the notion of "proximate cause". And I will get into that shortly but I want you to go ahead and quote directly from an article from the Bangkok Post,, the article is titled: COVID Spreaders to Face Legal Action. Quoting directly: "Legal action will be taken against entertainment businesses and people who recklessly spread COVID-19," and then throughout some of the rest of this were they are quoting Dr Charaspong Sukree, Chief of Nakhon Si Thammarat's Public Health. Quoting further from this article: "A 26 year old woman took a flight to Nakhon Si Thammarat from Don Muang Airport on April 11th, after," (after, and this is key) "after she was told she was infected. Doctor Charaspong said the patient who had caused havoc at the airport and anxiety among passengers would be charged with withholding information." Quoting further: "Authorities will determine where the offenses were committed and the patient will be summoned to answer charges there. He said she did not violate the law in Nakhon Si Thammarat as she informed authorities as soon as she landed. However, a private laboratory would also be held responsible for failing to notify the Department of Communicable Disease Control for the Center of COVID-19 Situation Administration to initiate the quarantine process. Based on the patient's timeline, she took the COVID-19 test at a private clinic on April 9th and was informed of the positive result on April the 10th. She boarded an evening flight for Nakhon Si Thammarat the following day." A couple of things here. One thing and we have done a video on this where we have talked about privacy, just the notion of privacy. One thing I find a little bit concerning just on a personal level, and also from a legal standpoint is it has become just accepted conventional wisdom that you don't have any privacy at all with respect to your medical records. I do understand that many feel that there are exigent circumstances here but I think we should keep our eye close on just generally speaking, the notion of privacy especially patient privacy. Now that said, getting into the idea of someone who actually is affirmatively advised that they have a disease which is considered part of a pandemic and requires restriction associated with it, from a legal standpoint in my opinion, that is a really problematic set of circumstances. I will get into proximate cause here in a moment about COVID generally but I want to be clear. There is a difference between someone who knows they have a disease and acts recklessly notwithstanding that notion, that is a very different thing from someone who doesn't know they have anything and is just living their life. Those are two very, very different things and I will get into this because I think that this gets conflated a lot. 

So let's start with proximate cause here. What are we talking about? Proximate cause is a notion that, at least in law school when I went to law school, we first started dealing with it in the context of torts. These are civil actions that may arise for civil damages basically for people either doing something intentionally or unintentionally. Long story short, the notion of proximate cause, and I remember being in law school and this is one of those concepts that in law school is really hard to grasp when you are first dealing with it and as time goes on it becomes something that lawyers are inclined toward, it is almost second nature to us and it is one of these things that I find lay people get really frustrated with us about because we think a certain way. It can be legalistic but also it comes from a very commonsensical place and I will explain this right now. So I am originally from Kansas and Kansas is tornado country. One of the best analogies that I have ever heard with regard to proximate cause works like this. For example, my grandfather had a place, he kind of lived out on it wasn't exactly rural, but he wasn't really around anybody and a major tornado went through my area of Kansas back when I was a kid frankly. It was the early '90s. You can actually Google it; it is called the Andover Tornado. It was a big major tornado and it ripped through this little town outside of Wichita. One of the effects of this tornado is, for the rest of my life that I remember after that, there was a piece of sheet metal that had been thrown into a tree on my grandfather's hedgerow and it went in so fast into the tree, the tree just kept growing around this piece of sheet metal. It just sliced partially into the tree and the tree just kept growing and that sheet metal was always in there; it is like a constant reminder of that tornado. The reason I bring this up with respect to proximate cause is, let's say that that sheet metal had hit my grandfather's car and let's say my grandfather now wants to sue someone because he wants to have the damage to his car paid for by someone. Setting aside insurance and all of that kind of thing, we are just talking about let's say hypothetically my grandfather wants to go sue someone for the damage caused by the sheet metal hitting his car. Well there isn't anyone to sue because the proximate cause of that sheet metal hitting his car was the tornado, it is not any person either intentionally or negligently doing anything that caused the sheet metal to hit that car. We know where the sheet metal came from. It was from the roof of a building about half a mile away and it just got picked up by the tornado and it just lodged into the tree. In this case, in our hypothetical, it went into a car and it caused damage. Now if someone intentionally takes a piece of sheet metal and beats my grandfather's car and causes damage, well you can sue someone for that because the proximate cause of that is the person who caused it. It was the person who intentionally used the sheet metal to cause damage to the car. Or, if my grandfather drove to that person's place of business and due to faulty installation, that piece of sheet metal fell off the building and hit my grandfather's car that could be determined to be the proximate cause of that was negligence on the part of the installer of the sheet metal. There is a big difference here because things can happen where the proximate cause of it is something beyond the control of anyone. When I bring this up, I bring it up because the proximate cause of the virus is the virus itself. You cannot ascribe blame to people who happen to end up in the chain of transmission who through no fault of their own may end up causing something to spread. You cannot attribute proximate cause on those people if they have no idea of what is going on. It is like blaming a person for the tornado. You can't do that. You can't blame someone for something unless they are the proximate cause of that. Now they may not intentionally do it but their actions may have led to it directly, in a more direct way than just the sheet metal being in existence and the sheet metal damaging the car. No, it needs to be deeper than that. You need to be able to show a direct connection between that individual's actions either intentionally or unintentionally and the harm caused; the proximate cause. 

So, getting back to this notion, this person who was apprised of their status that they had tested positive for COVID-19, yes that is a real problem. I am not going to get into what I think of that or anything on a personal level but yeah I think in a legal sense, the moment that person is apprised to that, they have a duty at that point to take precautions because now they know it is out there. To use another analogy, it is like HIV/AIDS back in the 80s and 90s when it was first coming out as a threat, as a disease that the public needed to be concerned about. There is a huge difference between somebody that was infected with it and unintentionally spread it; they just simply did not know they had it from someone. I believe they were even like manslaughter cases or at least negligent homicide cases brought against people who knowingly had the disease and engaged in sexual activity with other people knowing that they had that disease and knowing that it could spread to them. That is a huge difference. The knowledge and lack of knowledge. The reason I bring it up is because I have seen a lot of stuff in the press recently where these notions are seeming to get conflated. There is a big, big difference between someone who knows their status and just acts recklessly and just disregards it and just moves on about their life and doesn't tell anyone, doesn't take any steps to mitigate the possibility of giving it to someone. These are Western concepts but the notion of proximate cause I think transcends all legal systems. You can't blame someone for force majeure events; you can't blame someone for a tsunami; you can't blame someone for a tornado; and in a very real sense even a pandemic is a naturally occurring event, it is a force of nature if you will in a sense. So to blame folks that are for lack of a better term, innocent bystanders in the chain of transmission, I think that is a real problem legally speaking. Now again someone who is aware of their status as being infected with something or testing positive for something, that is a different set of facts; those folks I think do have a duty. But, I have seen a lot in the press recently where they have been conflating that with people that in my opinion were acting quite innocently and inadvertently, people came to their establishment for example and they found that that establishment was in the chain of transmission for example. It is very difficult in my opinion to ascribe any kind of legal culpability to those who are simply going about their business and are just simply unaware that they are, for lack of a better term, in the path of a naturally occurring event and again these are in a sense they are kind of complex and in some ways can be a bit semantic notions but I do think there is a bright line difference between someone who knows they have something and don't do anything about it or intentionally go about their business in such a way, there are people that maybe I am not ascribing intent to anyone here, but as we brought up in those cases with like HIV and AIDS, there were people that were intentionally spreading it. I remember reading about cases about that and dealing with the issue of intent in a criminal context with respect to that notion, but even negligently even just “okay I know I am positive and I am still going about my business”, that is a real problem. That is a totally different thing from trying to ascribe some level of culpability on someone who is totally unaware of their status and who is just moving about and is just being affected by a naturally occurring phenomenon. Again it brings us back to the notion of proximate cause. The tornado is the proximate cause of the sheet metal hitting the car. It is not the person who had the sheet metal on their building. Just the fact that the sheet metal existed that is not enough. It is the naturally occurring event that does it. Just simply being human and being in the chain of transmission of a virus, especially not knowingly, where you don't know that you have been infected or anything, I don't believe that you can ascribe legal culpability to that fact pattern.