Being a carrier of an STD undoubtedly has its share of consequences, both financial and psychological. However, is there a legal remedy to mitigate these consequences for those who have maliciously been infected by others?
In this capsule, we review the principles applicable to a civil action for transmission of an STD, including genital herpes, in Quebec.
The nature of the remedy
In Quebec, any civil action for transmission of an STD derives its source from civil liability. Consequently, the preponderant proof of three elements is necessary for the success of that action, namely fault, damage and, a fortiori, causation.
The fault
From the outset, the courts are as follows when it comes to the transmission of an STD:
“A person who transmits the genital herpes virus [ou toute autre ITSS] is not automatically responsible for damage caused by the disease to the other. One can imagine the case of a person who does not know that he is a carrier of the virus since he has never shown any symptoms of genital herpes and has never been diagnosed to that effect. She would not be committing a fault by not disclosing a fact that she is totally unaware of, namely that she is a carrier of the virus. In the event of transmission of the virus, that person would have unknowingly caused damage to his or her partner for which, in the absence of fault, he or she could not be held responsible. »
However, it is well established in Quebec law that failure to disclose to a sexual partner information that is known and likely to influence his or her informed consent to sexual relations is a fault. In the context of STD transmission more specifically, this translates into a duty for those with an STD and those experiencing symptoms of an STD to spontaneously inform their sexual partners. It is therefore not only up to the potential victim to take the initiative to inquire about the health of his sexual partner, but to the one who knows or should know that he has an STD to disclose his condition on his own initiative.
This disclosure must also be made prior to sexual contact, regardless of the nature of the sexual contact (with or without penetration), so as to provide their sexual partner with the opportunity to analyze the situation, learn about the STD and make the most informed decision possible before consenting to sexual contact. Finally, it should be emphasized that such a duty to inform is imposed even on asymptomatic carriers, because they can still infect their partners.
Any breach of this duty of information constitutes a fault likely to engage the civil liability of the responsible, and moreover the transmission of the virus, in itself, is not necessary to establish the fault. However, it is still necessary to demonstrate, as a victim, that you have suffered damage resulting from this fault.
Harm
Under Quebec law, the purpose of damages is to compensate the victim for the direct and immediate consequences of the fault of others, in other words, his prejudice. Several harms are likely to be suffered as a result of the transmission of an STD, depending on the facts of each case. Nevertheless, several heads of claims are often repeated from one case to another. The following is a non-exhaustive list of claims that have already been made in the past:
- Non-pecuniary damage (quantifiable; based on evidence provided):
- Drug costs (past and future);
- Expert fees;
- Travel expenses;
- Therapy fees (past and future);
- Non-pecuniary damage (not quantifiable; at the discretion of the judge):
- Moral and psychological harm;
- Sexual prejudice;
- Anxiety;
- Loss of self-esteem;
- Violation of the dignity and integrity of his person;
- Physical suffering.
For all of these claims, the amounts awarded by the courts in recent years vary roughly between $10,000 and $ 30,000, depending on the evidence provided by the victim, all subject to a possible sharing of responsibility. However, these rarely exceed $15,000. For this reason, it may be preferable to bring an action by yourself to the Small Claims Division of the Court of Québec. Nevertheless, the point of view of a lawyer will always be beneficial to your efforts, regardless of the nature of the case.
For more information on this subject, we invite you to read our article on small claims.
Punitive damages
Punitive damages may also be awarded in the event of an intentional infringement of a right guaranteed by the Quebec Charter, including the right to integrity. However, evidence of intentional infringement is particularly difficult to establish. Indeed, since punitive damages are intended to punish a person responsible and to denounce a certain reprehensible behavior, unlike the usual compensatory damages, particular attention must be paid to the state of mind of the person responsible.
Sharing of responsibility
Although it is up to the bearer of an STD to declare his status to his partners, it appears from the case law that those who consent to a sexual relationship must also take the necessary precautions, at the risk of suffering a sharing of responsibility.
Indeed, Quebec law provides that “if the person who is contaminated has taken risks, he will have to bear part of the responsibility for the damage suffered”. A sharing of responsibility of 25%, or even 50%, depending on the seriousness of the risks taken by the victim, is therefore likely to be imposed on a party who fails to inquire about the state of health of his partner prior to sexual contact, who does not suggest the use of a condom during sexual contact with a stranger or who fails to inquire about the reliability of a negative screening invoked by his partner, inter alia.
However, it has been repeatedly determined that the fact that a victim knowingly chooses not to end a sexual or romantic relationship with the person who infected him or her should not prejudice or impede his or her remedy; the damage is then already done.
If you consider yourself a victim of the fault described above and wish to obtain compensation, do not hesitate to contact us to obtain an evaluation of your case and to find out how we can help you.