Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP). She spoke to Business Leader about the current legal questions around facemasks.
Despite Delta variant concerns leading to all four UK nations applying brakes to the easing of Covid restrictions, we are slowly emerging from lockdown (although this will be little comfort to many businesses). Buoyed by high numbers of vaccinations, many people are hoping that the time to stop wearing masks is very close. Some think that time is now. However, official guidelines still recommend mask wearing and social distancing.
But if you were to decide to eschew masks, and you contracted Covid and passed it on to someone else, could you be held legally liable?
The short answer is no. There is no law making it mandatory to wear masks; wearing masks is simply part of guidelines suggested by the Government in order to keep people as safe as possible.
In any case, there would be difficulties in pinpointing who passed on the virus and how, similar to how difficult it would be to ascertain how someone contracted a common cold. So, not wearing a mask will definitely not be a crime (an offence against the State).
However, there is the question of it being a civil wrong (an action caused by one individual against another individual causing injury or damage)? And the answer to that is … maybe.
The fact that there is no crime committed, as there is no statute stating that mask wearing is mandatory, does not prevent someone who believes they have a claim against another individual for negligence (not wearing a mask) that has caused personal injury (contracting Covid) from suing that individual through the civil courts. Winning such an action, gives rise to the automatic remedy of damages (compensation). The amount of damages, depends on the injuries and loss suffered.
If you found yourself in such legal difficulties, it may be wise to engage a solicitor or a paralegal (who can do many—but not all—of the same jobs as a solicitor, but will be considerably more cost effective). This is because of the burden of proof.
The evidence that a claimant needs to produce to prove their civil case is a lower burden than that of a criminal action. The burden in a civil action is that the claimant must prove their case on a balance of probabilities (i.e. that the claimant is more likely than not to be right, and that the claimant has weightier evidence than the defendant). Whereas the burden of proof in a criminal action is that the prosecution must prove their case beyond any reasonable doubt.
While the difficulties in identifying who was responsible for passing on the Covid virus remain, in a situation where an individual is not wearing a mask amongst many (perhaps hundreds) of others who are wearing masks, then it is likely that the finger will be pointed at the person without the mask. So, is it worth risking not wearing a mask?
Yes, large numbers of people have been vaccinated, but it is worth being clear about the numbers: 70 (plus) million vaccinations have been carried out across the UK; the number of people in the four nations who have had at least one dose is a little over 40 million; a little more than 30 million people have received second doses; the UK population is around 66.5 million.
It is also crucial to remember that the vaccination does NOT prevent you from contracting the virus. What the vaccine is meant to do is to reduce the serious effects that the virus can have, and to reduce fatalities. Furthermore, we should not forget that the virus is mutating in order to survive, and that means that we are bound to get another wave or two before the virus dies out completely. So, while some may want to believe it is ‘all over’, it is not.
We should therefore be sensible, and responsible to those around us and wait until the figures are zero, both for infections and fatalities, for a number of weeks, or perhaps even months, before we take the decision to refrain from wearing a mask or social distancing.
Otherwise, is it worth the risk? Answer: most definitely not!