- Following a W24 article about a husband who got Covid-19 after sneaking out to meet his girlfriend during lockdown, readers were curious as to whether you can sue your spouse for endangering your life as a result of an extramarital affair.
- There are certain requirements that need to be met for you to successfully sue for damages under the law of delict.
- In this article, experts unpack what the law says in this type of situation and what elements will be crucial in your case.
In a time of uncertainty during the lockdown, many of us are looking for security in different ways. However, when one lives with a partner nothing is guaranteed.
If your spouse has a secret relationship outside your marriage and they contract Covid-19 as a direct result of it, and then pass the virus on to you, what recourse would you have?
Can you sue your spouse and their partner for damages? The short answer is: you could try, though the chances of success are slim.
To answer the question in more detail, specialist family law attorney Riva Lange from Riva Lange Attorneys and Advocate Doris Goodenough of Group 16 Advocates, say a claim for damages is brought in terms of our law of delict.
To succeed in a claim for damages, the plaintiff would have to meet the elements of proof for delictual liability, which are wrongfulness (actionability), fault, causation and loss.
Concerning wrongfulness, it is important to realise that ultimately the question of whether the law or the court will find an act or omission to be wrongful is a matter of what the law calls the boni mores of the community (i.e. of legal policy or public policy).
In general, the law dictates that causing physical harm is automatically wrongful. So if the wife does contract Covid-19 as a result of the husband's conduct or omission (i.e. not being honest that they have contracted the virus and need to self-isolate from the wife), then the element of wrongfulness has been satisfied.
Concerning establishing fault, the question is whether a reasonable person in the position of the adulterous husband would have conducted himself as he did in (a) contracting the virus through the adultery and then (b) not informing his wife of the risk to her health created thereby.
The other issue would be whether the adulterous husband would have foreseen even just a possibility that his conduct would lead to his wife becoming infected.
This part is tricky. "If he de facto knew that the girlfriend was Covid-19 infected, then I think that any court would find that he was negligent in not alerting his wife to the risk. Especially if the husband did not go for Covid-19 testing," says Lange.
"The more difficult situation would be where the husband did not consciously, in fact, know that his girlfriend was Covid-19 positive. In such a scenario, the question would be whether a reasonable adulterous husband (a) would have foreseen that his girlfriend may have Covid-19 – this aspect is open to debate – and if so (b) whether he would have taken steps to ascertain whether he himself was infected and would have informed his wife and asked her to be tested."
If the answer to (a) is yes, then I have little doubt that the answer to (b) would also be yes.
Then we move on to causation (cause and effect); the current established case law is that ultimately the question of whether causation is held to be sufficiently developed for purposes of fixing delictual liability on a defendant is also a question of public policy.
Of course, the first requirement is whether simple factual causation has been established, what is known as the sine qua non test – "a condition without which the issue could not be". In other words, the result [Covid-19 infection of the wife/plaintiff] must be caused by a culpable act [the husband's visit to the girlfriend which should have also had a legal causal link to the husband being infected with Covid-19].
The court will also enquire as to whether the loss was foreseeable. Traditionally foreseeability has been held to relate only to negligence, but the courts have started using foreseeability also as a limiting tool.
This relates to the question of "legal causation" because not every loss that is de facto (in fact) caused by a wrongful act is actionable; the court will ask itself whether the boni mores (public policy) dictates that legal causation has been established.
The final element is that the plaintiff has to prove that she has suffered a loss. If no loss can be justified, then there can be no liability in delict.
There are two types of loss that can be claimed in a delictual action: pecuniary loss, both past and future, and non-pecuniary loss, which we also call general damages.
Regarding non-pecuniary loss (aka non-patrimonial loss), i.e. general damages for emotional shock and trauma, it is in our view at least arguable that given the right circumstances, there may perhaps be a claim for general damages.
Would you take your spouse and his partner to court in this sort of situation? Tell us here.
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