The legalities of not wearing a mask

The legalities behind not wearing a mask can be tricky, so here's expert advice to solve your questions

Amanda Hamilton, CEO of the National Association of Licenced Paralegals (NALP) offers advice on where you stand legally if you decide not to wear a mask.

Do you find yourself staring at people in shops if they are not wearing a mask? I know I do.

As we are slowly coming through the most unprecedented time in recent history, the guidelines are still in place to wear masks, sanitise at every opportunity and to socially distance.

In fact, that is exactly what they are: government guidelines. In other words, these are the suggestions put forward by the government to keep its citizens as safe as possible. Consequently, there is no legal requirement to follow the guidelines.

So, if there is no law making it compulsory to wear masks, then why wear them? The answer to that is common sense. We need to prevent the COVID-19 virus from spreading. We wear a mask to protect, not only ourselves, but others around us. We therefore have to rely on the respect of others to do so, but we cannot force them to comply.

covid self test kit

The question then arises about whether we can take action against someone for not wearing a mask, if we are convinced that they passed on the virus? If there is no law making it illegal, ie, no criminal offence has taken place, is there any other way we can hold an individual responsible for any damage or injury caused by their non-compliance?

The short answer is possibly, yes!

"The question then arises about whether we can take action against someone for not wearing a mask, if we are convinced that they passed on the virus"

There must be a distinction made between a criminal offence, which is an offence against the state because an individual may have broken a law, and a civil offence—an action taken by one individual who owes a duty of care to another, and who breaches that duty of care to the extent that the other person suffers injury or damage.

This is called a “civil wrong”. In essence, we know that certain actions we take may cause harm to others: for example, the old adage, “Don’t throw stones at glass-houses”.

Meaning, that if we throw a stone at glass, it may shatter, and someone will probably be injured as a result of our action. Hopefully with this knowledge in mind, it’s sensible not to throw any stones at glass.

With a criminal action, it is the state that prosecutes the individual, but in a civil action, it is the injured party her/himself that brings an action through the civil courts against the individual who caused the injury.

Young woman wearing a mask at a train station

The burden of proof, eg, the extent to which you must prove your case is different. In a criminal case, the prosecution must prove the case to the court beyond any reasonable doubt. However, in a civil action, the burden is less: it must be proved on a “balance of probabilities”. In other words, the court must be satisfied that the claimant (the person bringing the action) is more likely to be right than wrong.

To put this into layman’s terms, if you want to take action against someone who was not wearing a mask, and you believe they passed the virus to you, you have to provide sufficient evidence to the court in order to prove your allegation.

This, then, is the sticking point. It is like proving someone passed on a cold. As we all know, we can suspect that a person on the bus going to work, who was sneezing continuously may have been the cause of the cold we are now suffering, but to provide evidence that it was indeed this individual, would be difficult.

"To provide evidence that it was indeed this individual, would be difficult"

Court papers

However, it is not impossible. Take a scenario where you are in a shop, and all but one individual is wearing a mask. The non-wearing-mask individual appears to be coughing and spluttering and standing right next to you while doing so. Of course, this individual may have an underlying medical issue as a reason for not wearing a mask, but still owes a duty of care to stay at home if feeling unwell.

You have taken plenty of flow tests, all negative and then after your shop, your test is positive. The next hurdle is to locate this individual. With track and trace it may be possible and you have a choice to take this individual to task through the civil courts. If you win your case, the remedy you will receive is damages (compensation for your loss).

"The main factor to bear in mind is that we all owe a responsibility to those around us"

The main factor to bear in mind is that we all owe a responsibility to those around us. By wearing a mask, we are showing respect for others as well as protecting ourselves and our loved ones. If you go to the extent of taking someone to court, bear in mind the cost and time of doing so. Ultimately, of course, the decision is yours to make.

If you do need help, you can always call upon the service of a licensed paralegal who can offer you advice and assistance at a reasonable cost.

Read more: How we solved COVID

Read more: Expert advice on COVID vaccines

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