[2015] KEHAT 8 (KLR)

MKR v CWR (Tribunal Case 001 of 2015) [2015] KEHAT 8 (KLR) (13 November 2015) (Judgment)

Neutral citation: [2015] KEHAT 8 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 001 of 2015

JO Arwa, Chair, A Siparo, Vice Chair, M Deche, MN Kullow, S Bosire, J Muriuki & J Kyambi, Members

November 13, 2015

Between

MKR

Claimant

and

CWR

Respondent

Judgment

Jurisdiction - jurisdiction of the HIV and AIDS Tribunal - jurisdiction of the Tribunal in relation to criminal law matters - whether the tribunal had jurisdiction to declare that the Respondent’s actions constituted an offence under the HIV and AIDS Prevention and Control Act.Tort Law – negligence - claim for recovery of damages for emotional distress arising out of alleged fear of contracting HIV or AIDS - whether the Claimant was entitled to damages. Brief Facts:The Claimant and Respondent had been in a relationship since 2012 when they were students at Strathmore University. In the course of their relationship, the Respondent and Claimant had engaged in sexual intercourse. According to the Respondent, the Claimant had declined to use condoms. The Respondent discovered later that the Claimant had been HIV positive and had failed to disclose her status earlier in the relationship. The Claimant alleged that the Respondent had been intimate with him with the intention of infecting him with the virus. After the Respondent had disclosed her status to the Claimant, the Claimant underwent tests which confirmed that he was HIV negative. The Claimant stated that the events caused him bodily harm, psychological and mental anguish. As a result, the Claimant sought the following relief as against the Respondent: a declaration that the Respondent’s actions constituted an offence under the HIV and AIDS Prevention and Control Act; and damages for bodily harm, emotional distress and mental anguish at Kshs.1,100, 000/=.

The main issues that were to be determined by the tribunal were as follows:i.Whether the tribunal had jurisdiction to declare that the Respondent’s actions constituted an offence under the HIV and AIDS Prevention and Control Act;ii.What were the common law principles that governed recovery of damages for emotional distress especially when caused by fear of contracting a disease;iii.Whether there was any public policy consideration that governed recovery of damages for emotional distress derived from alleged fear of HIV or AIDS;iv.Whether the Claimant was entitled to orders sought;v.What was the quantum of damages payable, if any.

Held: 1. The complaint concerned failure of persons to exercise utmost safety and precaution in relation to conduct or practices that carried the risk of HIV infection, a clear violation of section 3(c) of the HIV and AIDS Prevention and Control Act; and deliberate aggravation of the spread of HIV, a clear violation of section 3(d) of the HIV and AIDS Prevention and Control Act.

2. Section 24 of the HIV and AIDS Prevention and Control Act would have been relevant but was not referred to for the following three reasons:a.Section 24 of the HIV and AIDS Prevention and Control Act created a duty on the part of persons who were infected with HIV to take all precautions to avoid transmitting the virus to any other person, but enforced the performance of that duty through the instrumentality of the criminal justice system, rather than the civil law system. That automatically took away the jurisdiction of the tribunal to entertain claims based on alleged violation of section 24. b.Section 26 (2) expressly denied the Tribunal criminal jurisdiction; hence, the Tribunal could not issue a declaration that section 24 of the HIV and AIDS Prevention and Control Act had been violated.c.Section 24 of HIV and AIDS Prevention and Control Act had been declared unconstitutional by the High Court.

3. The tribunal had jurisdiction to grant prayers for damages against the Respondent. However, the tribunal lacked jurisdiction to entertain the prayer which wanted it to declare that the Respondent’s actions constituted a criminal offence.

4. In considering the law governing recoverability of damages for emotional distress arising out of alleged fear of contracting a disease in future, it was instructive to consider the extent to which the principles established applied with equal force to recovery of damages for emotional distress arising out of alleged fear of contracting HIV or AIDS.

5. It was useful to consider the question whether, in the context of HIV and AIDS, there were factors that would call for a great deal of circumspection on the part of courts and tribunals, and which would have required the law so far reviewed, to be sensitive to the peculiar etiology of AIDS as well as to the complex interplay of moral, social, legal, cultural, medical and public health challenges that have resulted from the HIV and AIDS pandemic.

6. Public policy considerations required courts and tribunals to adopt a much more circumspect attitude when dealing with cases that involved the recovery of damages for emotional distress deriving from alleged fear of AIDS on the basis of the unique etiology of HIV as well as the complex interplay of legal, moral, social, medical and public health concerns that result from HIV pandemic. Courts and Tribunals had to balance the rights of HIV infected persons as against the rest of the society. That was because decisions that prioritized the rights of HIV negative individuals over those of HIV positive persons, could discourage people from subjecting themselves to HIV testing, with far reaching public health consequences.

7. If recovery of damages for emotional distress in AIDS Phobia cases was made relatively easy, there would be a deluge in such cases (many of which would be fraudulent). That would result in a new economic burden on the shoulders of the HIV positive fraternity, a community of people who were already laboring under the heavy burden of disease, discrimination, social stigma and rights violation.

8. Courts and tribunals had to take into account the fact that fear of AIDS was usually caused by misperceptions, misinformation and ignorance about HIV and AIDS. Moreover, it was the irrational fear of AIDS that was largely responsible for the prejudice, stigmatization, ostracization, discrimination, and bastardization to which HIV infected persons were often subjected to. Accordingly, by glorifying fear of AIDS through hefty awards of damages in AIDS Phobia cases, or by making it very easy for plaintiffs in AIDS Phobia cases to recover damages, courts and tribunals would simply be creating conditions favorable for the spread of HIV related prejudice, stigma, discrimination, ostracization and bastardization.

9. The development of law in AIDS phobia cases was supposed to facilitate rather than hinder public health measures targeted at constraining the spread of AIDS. Public health perspective was first and foremost focused on prevention and was therefore reliant on the individual’s willingness to be tested. What was underscored was the importance of voluntariness, confidentiality and education in the fight against HIV and AIDS which was what the HIV and AIDS Prevention and Control Act sought to actualize. However, lofty and justified public health oriented schemes could be thwarted by the imprudent use of civil and criminal law, hence the need for circumspection.

10. To succeed in a claim for recovery of damages for emotional distress arising out of alleged fear of contracting HIV or AIDS the Claimant had to prove that: The Respondent owed him a duty of care; the Respondent breached that duty of care; he suffered damage as a result of the Respondent’s breach of that duty of care; the damage suffered by the Claimant was reasonably proximate to the Respondent’s breach of duty; and the Claimant’s fear was reasonable.

11. Section 24 of HIV and AIDS Prevention and Control Act (which had not been declared unconstitutional by then) and section 26 of Sexual Offences Act imposed upon the Respondent a duty of disclosure and a duty to take reasonable care to avoid transmission of sexually transmitted disease or HIV. Those statutory provisions imposed an automatic duty upon the Respondent to disclose her status to the Claimant at the risk of being held negligent per se and constituted prima facie evidence of the duty of care owed by the Respondent to the Claimant. Additionally, a duty of care arose primarily from the fact that the Respondent had actual knowledge of her HIV status.

12. The fact that the Respondent refused to disclose her HIV positive status to the Claimant for several months during which they routinely engaged in unprotected sex was prima facie evidence of breach of duty of care on the part of the Respondent. It was clear from facts that the Respondent willfully and knowingly intended to infect the Claimant with HIV. Hence the Respondent had breached her duty of care to the Claimant.

13. To succeed in an action for damages for emotional distress, the Claimant had to prove that he sustained some physical injury which led to the emotional distress or alternatively, that he suffered a severe emotional distress which manifested itself in physical injuries.

14. The Claimant testified that he suffered a severe psychotic episode that led to his admission at Avenue Hospital in Parklands, Nairobi. Moreover, he suffered bitterness, anxiety, restlessness, depression, anhedonia and even became suicidal. Such events constituted physical manifestation of the emotional distress suffered by the Claimant. The Claimant appeared to have had pre-existing mental or psychiatric problems which had been exacerbated by the situation that he was going through. However, the Respondent could not be excused from liability by reason only of the special vulnerability of the Claimant’s mental and emotional psychiatric disorders.

15. Mere exposure to the medium that may or may not contain the disease causing agent, without proof that the medium actually contained the disease causing agent itself, was not sufficient proof of exposure and could not form the basis of a rational fear of disease. Evidence presented by Family Health Options confirmed that the Respondent was HIV positive. Consequently, the Claimant was exposed to the virus. Hence the Claimant’s emotional and psychological distress was proximately caused by the Respondent’s act of exposing him to the virus.

16. Even where all the conditions for recovery had been met, recovery was only to be allowed where the Claimant had proved that his alleged fear of AIDS was reasonable. That involved examining the degree of probability that the Claimant could develop a disease; the greater the probability, the higher the likelihood that courts and tribunals would find that the fear was reasonable and vice versa. Courts and tribunals were supposed to dismiss emotional distress cases where the evidence adduced on behalf of the Claimant or plaintiff merely proved that future infection “might occur” or “cannot be ruled out” or was “remotely possible”. In such cases the Claimants fear could be deemed unreasonable.

17. The Claimant had not indicated whether he was seeking damages for past, present or future development of AIDS. However, he had no right in law to seek damages for present or future fear of developing AIDS. That was because he had undertaken several HIV tests, all of which had confirmed that he was HIV negative. The Claimant had no reason to fear AIDS, either presently or in future, arising out of exposure by the Respondent.

18. The Claimant’s fear of AIDS between the time that he discovered that the Respondent was HIV positive and the date of the third HIV test was reasonable. Therefore, the Respondent was liable to him for damages with respect to that period only.

19. Apart from the single incident when the Claimant alleged that he wanted to use a condom but the Respondent refused, there was no other attempt on the part of the Claimant to use a condom. That was an indication that the Claimant either assumed the risk of HIV infection or that he was reckless and had not bothered to take reasonable precautions for his own safety. Furthermore, he had never even bothered to inquire from the Respondent concerning her HIV status. Hence, it would have been wrong to hold the Respondent wholly responsible for the Claimant’s misfortune.

20. Public policy required that every individual had to take responsibility for their own safety. It would be wrong for the Tribunal to impose upon HIV positive individuals, the duty of ensuring complete personal wellbeing of their HIV negative sexual partners. The duty of care that inhered upon the Respondent had to be complemented by the duty of the Claimant to take reasonable precautions for his own safety and to ask all relevant questions. The Claimant was also negligent because he failed to take reasonable precautions for his safety.

21. The amount of US$ 5,000 was sufficient since the Claimant could only recover damages for the period between the time he discovered that the Respondent was HIV positive and the date of the third test that confirmed him as HIV negative. In addition, the fear of being infected was not the sole cause of his psychiatric suffering. The Claimant was not entitled to recover damages for future fear of infection because he continued to voluntarily assume risk by engaging in unprotected sex even after learning that he was HIV negative and the Respondent was HIV positive. Hence the award translated to Kshs. 510,000/=. However, by virtue of the Claimant’s 75% contributory negligence the sum of Kshs.127,500/= was sufficient compensation as general damages for suffering psychiatric harm due to HIV AIDS exposure.Claimant awarded Kshs.127, 500 as general damages and interest at the rate of 12% together with costs.

Dated and delivered at Nairobi this 13th day of November, 2015. ……………………………………………J. ARWA (CHAIRMAN),……………………………………………A. SIPARO (VICE-CHAIRPERSON),……………………………………………M. DECHE (MEMBER),……………………………………………M.N. KULLOW (MEMBER),……………………………………………S. BOSIRE (DR-MEMBER),……………………………………………J. MURIUKI (MEMBER),……………………………………………J. KYAMBI (PROF.-MEMBER).