To mask or not to mask... where do you stand legally?

OPINION

PERSONAL RESPONSIBILITY: WHERE DO YOU STAND LEGALLY IF YOU DON’T WEAR A MASK?

As we slowly emerge from lockdown and life is desperately trying to get back to normal, should we take the step not to wear a mask asks Amanada Hamilton of NALP?

With numbers of vaccinations to date reaching 60 million many believe that it’s all over. But it’s not, and the Government guidelines still recommend mask wearing and social distancing.

So, if you take the step not to continue with mask wearing, and you contract COVID-19, or worse, you are a carrier and pass it on to someone else, whose fault is it, and can they or you be held legally liable?

The law will naturally be vague over this issue as we have yet to experience such a case. In many ways, it will be like trying to ascertain how you contracted a common cold. It will be difficult to pinpoint who had passed it on or from which location the virus was contracted. However, the subtle difference in this circumstance, is that having taken the step to refrain from mask wearing, you may be the only person to do so, and the finger may easily point at you.

So, the question is whether you can be held liable in law?

The simple answer is probably in the negative. The reason for this is that there is no law making it mandatory to wear masks, it is simply a guideline suggested by the Government in order to keep people as safe as possible. So, it will definitely not be a crime (an offence against the State). But, could it be a civil wrong (an action caused by one individual against another individual causing injury or damage)? 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 mean that an individual who believes they have a claim against another in say, negligence (not wearing a mask) that has caused personal injury (contracting COVID-19) cannot sue 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. Furthermore, the burden of proof, (evidence that a claimant needs to produce to prove their 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 has weightier evidence than the defendant (the person they are suing). Whereas the burden of proof in a criminal action is that the prosecution must prove their case ‘beyond any reasonable doubt’.

If it is clear, therefore, that an individual is not wearing a mask amongst hundreds of others who are, then it’s likely that the finger will be pointed at that person. So, is it worth risking not wearing a mask?

Despite the large numbers of people that have been vaccinated, it is vital to remember that the vaccination does NOT prevent you contracting the virus. What it is meant to do is to reduce the serious effects that the virus can have, and to reduce fatalities. So, while you may believe it is ‘all over’, it is not. 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.

This is even more vital given the situation evolving in certain parts of the world where infections and deaths are rising at an alarming rate.

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!

However, if you do run into legal difficulties, then a paralegal can help and will be considerably more cost effective than a solicitor. Paralegals are legally trained, can do many (but not all) of the same jobs as a solicitor and can assist you at a reasonable cost.

Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP). www.nationalparalegals.co.uk