[2016] KEHAT 2 (KLR)

[2016] KEHAT 2 (KLR)

The tribunal found that it had jurisdiction to determine the civil claim for damages under HAPCA, but not to declare the respondent's conduct a criminal offence. The respondent, knowing her HIV positive status, owed the claimant a duty of care to disclose her status and take precautions. Her failure to do so,...

Source-derived case information.

Citation
[2016] KEHAT 2 (KLR)
Parties
Claimant: MKK; Respondent: CWN
Court
HIV and AIDS Tribunal
Jurisdiction
Kenya
Judgment Date
22 July 2016
Case Number
Civil Case 001 of 2015
Procedural Posture
Civil Claim / Judgment
Outcome
Claim partly allowed; damages awarded for psychiatric harm due to HIV exposure, reduced for contributory negligence.
Legal Topics
Emotional Distress, Psychiatric Harm, Hiv Exposure, Duty of Care, Contributory Negligence
Source Language
english
Tort Law Civil Procedure Emotional Distress Psychiatric Harm Hiv Exposure Duty of Care Contributory Negligence

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Summary, issues, holding and outcome

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Parties

MKK

Claimant

CWN

Respondent

Procedural Posture

Civil Claim / Judgment

Legal Issues

  1. 1 Whether the tribunal has jurisdiction to entertain the claim for damages arising from alleged intentional exposure to HIV infection.
  2. 2 What common law principles govern recovery of damages for emotional distress caused by fear of contracting a disease.
  3. 3 Whether public policy considerations affect the recovery of damages for emotional distress in HIV exposure cases.

Ratio Decidendi

The tribunal found that it had jurisdiction to determine the civil claim for damages under HAPCA, but not to declare the respondent's conduct a criminal offence. The respondent, knowing her HIV positive status, owed the claimant a duty of care to disclose her status and take precautions. Her failure to do so, coupled with her refusal to allow condom use and her admission of intent, constituted a breach of that duty. The claimant suffered severe psychiatric harm, including a psychotic episode, depression, and suicidal ideation, which were proximately caused by the respondent's conduct. However, the claimant's continued engagement in unprotected sex and failure to inquire about the...

Court Disposition

Claim partly allowed; damages awarded for psychiatric harm due to HIV exposure, reduced for contributory negligence.

Orders

  • The respondent shall pay the claimant Kshs 262,500 as general damages for psychiatric harm due to HIV exposure.
  • The respondent shall pay interest at the rate of 12% on the awarded sum.