MKK v CWN [2016] KEHAT 2 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL

HAT CASE NO.001 OF2015

MKK.............................................CLAIMANT

-VERSUS-

CWN.........................................RESPONDENT

JUDGMENT

1.0.  ALLEGATIONS MADE BY THE CLAIMANT IN HIS  PLEADINGS

2. The claimant is a resident in Kajiado County. Although the Respondent was served with the pleadings, she however did not file any response. He filed a Statement of Claim dated 5^th Nov 2014 under the HIV/AIDS PREVENTION AND CONTROL ACT No. 14 of 2006 Laws of Kenya. This was later substituted by an Amended Statement of Claim dated 18^th February 2015.

3. In his amended statement of claim, the claimant  prays  that judgment be entered against the Respondent for: -

a) Declaration that the Respondent’s actions constitute an offence as provided for in the HIV and AIDS Prevention and Control Act.

b) Damages for bodily harm, emotional distress, psychological and mental anguish at Ksh.1, 100,000/=  as against the Respondent

c) Interest on (a) and (c) hereinabove.

d) Any other and or further relief that this Honourable Tribunal deems fit and just to grant.

4. From the onset it seems that there is no prayer c and we shall take it that the claimant meant   interest in prayer b. Further, the claimant prays for any other or further claim that the tribunal deems fit. We shall take that as typographical error and that the claimant intended to pray for any other relief that the tribunal deems fit.

5. In the amended statement of claim, the claimant avers that he and the Respondent met when they were both students and classmates at [Particulars Withheld] University. This was about September 2012. That they related well and eventually became intimate with each other.

6. That during those intimate moments. The Respondent refused the claimant to use condoms during sexual intercourse. According to the claimant, this was with the intention of infecting him with HIV AIDS which the Respondent already had. This fact was however not known to the claimant.  The Respondent only informed the claimant about this fact five months after exposing him to the risk and on several occasions.

7. That this caused the claimant bodily harm, psychological and mental anguish. 

2.0.  SUMMARY OF THE EVIDENCE ADDUCED ON BEHALF OF THE PARTIES HERETO

2.1.  THE CLAIMANTS’ EVIDENCE

8. According to the   claimant who gave his testimony in person as “CW1”, he testified that in July 2012, he joined [Particulars Withheld] University for a course in Chartered Financial Analyst (Level One Graduate). That sometimes in late September 2012 and on a Saturday morning, a lady walked into class and sat next to him. She then inquired from the claimant whether she could share his textbook. The claimant agreed to this. According to the claimant, this lady was very attractive.

9. That after class, the claimant reached out to her and established that she studied Actuarial Science. Over the several months that followed, the claimant together with the Respondent would meet in class and the claimant would walk her home. On Saturdays however, they would spend the whole day together.

10. Sometime in November 2012, the claimant testified that he saw a container with pills. That he then questioned her what the pills were for. The Respondent answered that they were meant to make her skin look beautiful.

11. In February, 2013, the claimant joined the Kenya School of Law for the bar course. Sometime in May, 2013, the Respondent came to the claimant’s house with a friend, one BMK who the claimant had introduced to her. By then, the claimant used to live alone. The Respondent came with alcohol. That she informed the claimant that she would be going home later on at 8.00pm. It was the claimant testimony that the Respondent never went home as she had promised. That at 11.00 pm, the Respondent opened the bedroom door and went to sleep. The claimant immediately rushed out and bought a packet of condoms.

12. According to the claimant’s testimony, at about 1.00 am, B was so intoxicated that he slept on the couch. That on that night, the claimant and the Respondent had sexual intercourse. That shortly before the intercourse, the Respondent told the claimant to remove the condom as it made her uncomfortable. That the claimant trusted her. His only concern at the moment was that the Respondent would become pregnant. That in the morning, the claimant and the Respondent agreed to be faithful to each other. From that day, they had a thriving sexual relationship. It was the claimant’s testimony that they never cheated on each other from 2^nd May 2013 up to 9^th October 2013. That although the claimant did not have a job, they nonetheless used to live together and depend on his school fees.  The Respondent would only go away when the claimant was broke. In his testimony, the claimant averred that he was 25 years old at the time and that they used to have sex almost all the time.

13. According to the claimant, the Respondent’s parents were aware that she was living in the claimant’s house. Accordingly, after sometime, they stopped calling her. That the claimant and the Respondent were even considering marriage and having children. In his testimony, he averred that the Respondent had informed him that if he was to get a job with a salary of Kshs 30,000/=, she would have married him. The claimant was also aware that the Respondent was taking Femiplan.

14. It was the claimant’s assertion that he did not pass the CFA exam. As a result of this he was very depressed. He bought alcohol and took it in excess. In the process, he hurt himself. The Respondent took him to 3 different hospitals: Family Health Care, Mbagathi District Hospital and Transchem Clinic. The Respondent then nursed the claimant back to health.

15. That they continued living together. The claimant testified that he found the Respondent to be the best girl in the world. In the process, the Respondent informed the claimant that she wanted to compete for MS Tourism, Nairobi County, 2013 Edition. To this end, she requested the claimant to take her to Ngong Hills.

16. That during the last three weeks of September 2013, up to sometime in October 2013,   the claimant averred that the Respondent did not come to the house. Among other excuses that he gave was the fact that he was going to attend a dowry payment ceremony. On 5^th October 2013, being the day of the beauty pageant, the claimant further testified that he was in attendance. That although the Respondent is very beautiful, she did not win. But this did not matter to the claimant because as far as he is concerned, she is the best.

17. That the claimant stayed with her for the following 3 days and missed his classes at the Kenya School of Law.   That by the end of these three days, the Respondent was in a foul mood. She informed the claimant that she didn’t want the relationship any more. Accordingly, she started to pack her bags. According to the claimant, this was unfair to him. He then poured water on her. Shortly afterwards, the claimant felt that this was extreme and that he should apologize. Before he could do so, the Respondent told the claimant that she had infected him with HIV. She then pulled out a container of pills but refused to hand over the claimant the container. She informed the claimant that she intended him to be infected. The claimant was very confused and amidst this confusion, the Respondent came and slapped him hard.

18. The claimant testified that he took a knife from the kitchen but   later dropped it. She further informed the claimant that she had aborted his baby.

19. In his testimony, the claimant testified that he considered killing the Respondent. However, seeing the respondent’s face swollen and bleeding made  him very sad. That at some point, the Respondent requested the claimant to make love to her again. The claimant however felt that she intended to trap him. That she wanted to accuse him of rape. That she went to the kitchen and wanted to stab the claimant.

20. The claimant testified that after the scuffle, he went out and walked to the nearest shop where he bought a cigarette. He later went to a VCT to confirm his HIV status. He was informed that he was negative. That henceforth the claimant always entertained suicidal thoughts. It was only upon taking alcohol that he would feel normal again. That after sometime, the claimant visited the respondent’s mother. He explained to her why he beat up her daughter. The Respondent’s mother then advised the claimant to drop the case as he was still negative. That at a later time, the Respondent called to establish whether the claimant was positive.

21. The claimant averred that he informed his cousin what had happened who then informed the claimant’s family. The news became public. That the claimant suffered a lot of stigma. He lost several friends. Everyone that he told that he was not sick could not believe him. Apparently he could not understand anything in school. It became difficult for the claimant to live at home. Eventually; his family took him to a mental hospital. According to the claimant, the doctor attributed his problem to the Respondent. That the claimant still talks to the Respondent. She has however warned him that if he was to go to their home, he would be beaten up.

22. That one day, the claimant went to her house and told her that he wanted her back. The Respondent and the claimant agreed to date again. That they resumed their relationship and even had sex. The Respondent then took the claimant to the doctor where he was tested and found to be negative.  The claimant however did not inform his parents that he was dating the Respondent again.

23. One day the Respondent told the claimant that her parents had advised her that she should date someone who is HIV positive. The claimant then decided that after having intercourse again with her, he would tell her that he was HIV positive. That the Respondent had told the claimant on SMS that it’s good to share the Virus. That had they not fought on the fateful day, the Respondent would not have informed the claimant of the HIV exposure. According to the claimant, after informing the Respondent that he was sick with the virus, she now did not want him anymore. That is why the claimant decided to sue her. That the claimant later learnt that the Respondent had infected several men.  

24. After the institution of the current suit, the claimant went to serve her but the Respondent beat him up. That he seeks relief for emotional distress that the claimant has suffered in her hands. He also testified that he is not seeking to revenge against the Respondent’s for her refusal to come back to him nor is he seeking to punish her for the negligent conduct of placing innocent lives at risk.

25. He finally ended by averring that he has never seen her medical records nor have they ever been tested together. He has however seen her taking TRUVADA twice in a day, one in the morning and the other in the evening.

2.2. THE RESPONDENT’S EVIDENCE

26. Although the Respondent was duly served, she nonetheless failed and or refused to enter appearance or file a response to the claim. Indeed, she was served on 20^th February 2015 and a return of service filed by one K. S ,a licensed process server . Again, there were attempts to have the Respondent served with a Hearing Notice of 20^th March 2015 but she informed the process server that she would not be in Nairobi.  According to her, the hearing ought to be postponed to sometime in June. One PWN filed a return of service to this effect.

27. On the hearing date of 20^th March 2015, the honourable tribunal indicated that they were dissatisfied with the service upon the Respondent. They therefore ordered for the Respondent to be served again with a Hearing Notice. Indeed, the claimant was granted leave to serve the Respondent by way of substituted service. The hearing was then postponed to 10^th April, 2015.

28. The Respondent was finally served by way of substituted service through a newspaper advertisement placed in the standard of Thursday 2^nd April, 2015. She nonetheless did not appear. .Another attempt was done to serve the Respondent on 8^th day of April 2015. But albeit being called by both the process server as well as the claimant’ advocate’s receptionist, the Respondent refused to pick her cell phone. PWN filed a return of service to this effect.

29. Notwithstanding the fact that the Respondent remained obdurate in the current proceedings, the tribunal has a legal duty to scrutinize the claimants evidence presented before it and come up with a determination.

3. EMERGING ISSUES

30. A multiplicity of issues emerge in this case all of which bear on the morality or otherwise of the conduct of the parties hereto, with far-reaching legal, social and even medical implications.  We shall however, confine ourselves only to the issues which impact directly on recovery of the reliefs sought herein, which are summarized as hereunder:

(a) Whether this tribunal has jurisdiction to entertain the issues raised herein;

(b) Which common law principles govern recovery of damages for emotional distress especially when caused by fear of contracting a disease;

(c) Are there public policy considerations, deriving either from the etiology of HIV and AIDS, or from the public health rationales that call for a more circumspect  attitude on the part of courts and tribunals when dealing with actions for recovery of damages for emotional distress caused by fear of HIV infection (Hereinafter called “AIDS Phobia Cases”).

(d) Whether the application of the law to the facts of this case is consistent with the grant or denial of the orders sought herein.

(e) If the answer to (d) above is in the affirmative, then what is the quantum of damages payable.

A) WHETHER THIS TRIBUNAL HAS JURISDICTION TO ENTERTAIN THIS SUIT

31. In his Amended Plaint filed herein, the claimant alleged that the respondent caused him bodily harm, and psychological and mental anguish by deliberately exposing him to the risk of HIV infection.  He therefore claims damages from her.  Is this a matter that this tribunal has jurisdiction to entertain?

32. The jurisdiction of this tribunal is donated by Section 26 of HIV & AIDS Prevention and Control Act (HAPCA) which provides as follows:

“26(1) The tribunal shall have jurisdiction;

(a) To hear and determine complaints arising out of any breach of the provisions of this Act;

(b) To hear and determine any matter or appeal as may be made to it pursuant to the provisions of this Act; and

(c) Perform any other function as may be conferred upon it by this Act or by any other written law.

(2) The jurisdiction conferred upon the tribunal under sub-section 1 excludes criminal jurisdiction.”

Section 3 of HAPCA, which deals with the object and purpose of the Act, states as follows:

“The object and purpose of this Act is to:

(a) …..

(b) …………………

(c) Promote utmost safety and universal precautions in practices and procedures that carry the risk of HIV transmission

(d) Positively address and seek to eradicate conditions that aggravate the spread of HIV infection.

Section 3(c) and 3(d) of HAPCA clearly state that the fundamental objects and purposes of HAPCA include “promoting utmost safety and precautions in practices that carry the risk of HIV infection”, as well as “addressing and seeking to eradicate conditions that aggravate the spread of HIV infection”.

33. This complaint arises out of alleged intentional exposure to the risk of HIV infection.  The claimant alleges that the respondent deliberately set out to infect him with HIV, and/or that the Respondent deliberately avoided taking all the necessary precautions (such as insisting on the use of condoms) and/or practicing safe sex, knowing that she was HIV positive.  In his evidence, the claimant alleges that the Respondent has done this to several other men whom she has infected with HIV.  If what the claimant is saying is true, then the Respondent’s conduct clearly aggravate the spread of HIV infection.  This complaint therefore concern failure to exercise utmost safety and precaution in relation to conduct or practices that carry the risk of HIV infection (which is a clear violation of Section 3(c) of HAPCA) and deliberately aggravating the spread of HIV (which is a clear violation of Section 3(d) of HAPCA).

34. We make no reference to Section 24 of the Act which would also have been relevant to this case^[1] for three reasons:  First section 24 of HAPCA created a duty on the part of persons who are infected with HIV to take all precautions to avoid transmitting the virus to any other person, but enforces the performance of that duty through the instrumentality of the criminal justice system, rather than the civil law system.  This automatically takes away the jurisdiction of this tribunal to entertain claims based on alleged violation of section 24 aforesaid.  As was unequivocally asserted by Lord Diplock in the case of LONRHO V. SHELL PETROLEUM CO. LTD (NO. 2)^[2] and approved in the case of R.C.A V. POLLARD^[3], it is a general rule that where a statute creates an obligation and enforces performance in a specified manner “…. That performance cannot be enforced in any other manner”. Second, Section 26 (2) expressly denies this tribunal criminal jurisdiction, which in our view mean that we cannot issue a declaration that section 24 of HAPCA was violated as sought by the claimant herein. Finally, we are aware that Section 24 of HAPCA was declared unconstitutional by the High Court in the case of AIDS LAW PROJECT V. THE HON. ATTORNEY GENERAL AND OTHERS^[4]

35. In view of the foregoing, we hold that this tribunal has jurisdiction to entertain prayers (b) and (c) of the Amended Statement of Claim, but does not have jurisdiction to entertain prayer (a) of the Amended Statement of Claim, wherein the claimant wanted this tribunal to issue a declaration to the effect that the respondents actions complained of constituted a criminal offence.

B) WHICH COMMON LAW PRINCIPLES GOVERN RECOVERY OF DAMAGES FOR EMOTIONAL DISTRESS ESPECIALLY THOSE ARISING OUT OF FEAR OF DISEASES

36. Under common law, all claims for unintentional harms would fall under the head of negligence and history confined trespass to infliction of harm by direct means^[5].  This meant that in a situation where harm is intentional but indirectly inflicted – for example, where a woman suffers severe emotional distress as a result of a cruel lie told to her that her husband has been involved in a freak accident- no liability arose. This led to the expansion of the categories of torts in the case of WILKINSON V. DOWNTON^[6].  In that case, the defendant, by way of a practical joke told the plaintiff, a married woman, that her husband had been involved in an accident in which both his legs were broken.  The plaintiff suffered severe shock which manifested itself in vomiting and other more serious and permanent physical consequences that entailed weeks of suffering and incapacity.  Wright J held that the defendant was liable because he had “willfully done an act calculated to cause physical harm to the plaintiff and had in fact thereby caused harm to her”.

37. This was the beginning of the tort of causing emotional distress and/or mental anguish.  In order to succeed in an action for willfully occasioning mental distress or psychological anguish, the plaintiff had to prove the following:

(a) That the defendant’s conduct was extreme and outrageous;

(b) That the defendant intended to cause severe emotional distress to the plaintiff;

(c) That the defendant’s extreme and outrageous  conduct caused emotional distress to the plaintiff; and

(d) That the plaintiff’s emotional distress was severe.

38. In order for a plaintiff to establish a prima facie case for negligent infliction of emotional distress, he or she must prove;

(i)  That the defendant owed a duty to the plaintiff;

(ii)  That the defendant breached this duty;

(iii) That the defendant’s breach caused emotional distress to the plaintiff; and

(iv) That the plaintiff suffered emotional distress.

39. The plaintiff must prove, and the court or tribunal must be satisfied, that the injuries were actually suffered and were proximately caused by the defendants.

40. Recovery of damages for mental or psychological anguish however present numerous challenges to courts and tribunals:  The difficulties associated with proof of causal relationships between the alleged mental distress and the defendant’s actions; the ease with which claimants can feign mental distress or anguish; concerns over the potentials for spurious or vexatious litigations, and the hesitancy to punish defendants for indirect and possibly unintended, consequences of their actions.

41. In Keeton and Posser on the Law of Torts^[7]the potential for fraudulent claims is highlighted as one of the main reason why courts and tribunals should be very cautious when confronted with claims for emotional distress.  The learned authors put the point thus:

“The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the element of extreme outrage and moral blame, which had been such weight in the intentional tort, are lacking”^[8]

42. The aforesaid challenges become even more intractable where a plaintiff claims damages for mental and/or psychological distress or anguish caused by alleged fear of contracting a disease.  For the above reasons, courts have over the years imposed several limitations on recovery of damages for emotional distress for alleged fear of diseases.

43. Historically, courts and tribunals have insisted that plaintiffs in such cases must suffer physical injury or to sustain some form of physical contact before holding the defendant liable. In cases involving future illnesses, courts have applied the traditional common law requirement that a plaintiff must suffer some physical injury before the defendant can be held liable for emotional distress^[9].  Plaintiffs’ can satisfy the physical injury requirement in two ways.  First, a plaintiff may suffer the physical injury and, subsequent to that injury, suffer emotional distress.  Second, the plaintiff may suffer such severe emotional distress that causes him severe physical injury as in the case of WILKINSON V. DOWNTON.

44. In the American Case of JACKSON V. JOHNS – MANVILLE SALES CORPORATION^[10], the plaintiff sued for emotional distress stemming from alleged exposure to asbestos.  He succeeded only because he had previously been diagnosed with asbestosis which constituted evidence of physical harm.  On the contrary, in the case of POTTER V. FIRESTONE TIRE AND RUBBER CO.^[11], the California Supreme Court denied recovery of damages for fear of developing cancer in future to a person who claimed to have suffered emotional distress for fear of developing cancer in future by reason of exposure to carcinogens via their ingestion in contaminated water supply, arguing that there was no evidence of physical injury.

45. Like the requirement of physical injury, courts and tribunals have also been insisting on proof of direct exposure to the disease causing agent in situations where the plaintiff is claiming damages for emotional distress for fear of developing a disease in future.  In LAXTON V. ORKIN^[12], another American authority that was relied upon by the claimant herein, the plaintiff brought a suit seeking damages for mental anguish, personal injury and property damage arising out of the defendant’s negligence in contaminating the plaintiffs’ water with a toxic chemical.  The Supreme Court of Tennessee awarded the damages, citing direct exposure to the disease causing agents.

46. Apart from the requirements of physical injury and direct exposure to the disease causing agent, the other limiting constraint that has been insisted upon by courts and tribunals is the requirement of reasonableness; the plaintiff’s fear of developing a disease in future must be reasonable. In the case of MOLIEN V. KAISER FOUNDATION HOSPITALS^[13], a woman recovered emotional distress damages after her doctor misdiagnosed her as having syphilis. The plaintiff was married and the court found that it was “easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord”.

47. Having surveyed the law governing recoverability of damages for emotional distress arising out of alleged fear of contracting a disease in future, it is instructive  to consider the extent to which the principles so far discussed apply with equal force to recovery of damages for emotional distress arising out of alleged fear of contracting HIV or AIDS. We opine, however, that it is useful to consider the question whether, in the context of HIV and AIDS, there are factors that would call for a great deal of circumspection on the part of courts and tribunals, and which would require that the law so far reviewed, 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 result from the HIV and AIDS pandemic.

C) POLICY CONSIDERATIONS THAT GOVERN RECOVERY OF DAMAGES FOR EMOTIONAL DISTRESS DERIVING FROM ALLEGED FEAR OF HIV OR AIDS

48. The rationale behind the establishment of this tribunal was the realization that HIV pandemic present a multiplicity of challenges – moral, legal, social, medical, and public health challenges among others - and the fact that efforts to address one type of challenge often exacerbate the other challenges, thereby necessitating a multifaceted and multidisciplinary approach to HIV and AIDS issues.  Accordingly, resolution of HIV and AIDS disputes require that attention be focused, not just upon the panoply of rights and duties prescribed in the law, but also on the moral, social, medical and public health implications of any interpretation of law that is adopted.  This is why parliament, in its wisdom, reserved the resolution of all disputes that involve alleged violation of the provisions of HAPCA – not to the formal courts – but to a panel comprising of lawyers, medical doctors, social scientists, public health specialists and persons living with HIV.  For this reason, it is extremely important that we examine the policy considerations that govern the recovery of damages for emotional distress deriving from alleged fear of AIDS before we can specifically apply the law to the facts of this case.

49. Public policy considerations require that courts and tribunals should adopt a much more circumspect attitude when dealing with cases involving recovery of damages for emotional distress deriving from alleged fear of AIDS (hereinafter referred to as “AIDS Phobia” cases) 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^[14] Courts and Tribunals must walk a tightrope while balancing the rights of HIV infected persons as against the rest of the society.  This is because decisions that prioritize the rights of HIV negative individuals over those of HIV positive persons, by imposing specific duties on the latter group (at the risk of incurring either civil or criminal liabilities) may actually disincentivize people against subjecting themselves to HIV testing, with far reaching public health consequences.  For, if I know that knowledge of my HIV status alone exposes me to the risk of civil or criminal liabilities, then why bother to know my HIV status?  Similarly, if recovery of damages for emotional distress in AIDS Phobia cases is made relatively easy, then there will be a deluge in such cases (many of which will be fraudulent) with the result that a new burden –an economic burden- will be added onto the shoulders of the HIV positive fraternity, a community of people who are already laboring under the heavy burden of disease, discrimination, social stigma and rights violation. As Mathew Warren Gill argues in his Article entitled “Recovery of Emotional Distress due to Fear of AIDS – Exposing AIDS Phobia in Alabama”^[15]the development of the law in this area should be guided by the simple truism:  that it is individual responsibility, rather that tort or criminal liability that holds the key to keeping HIV prevention in the crosshairs.

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

51. Eric J. Knapp in his article entitled “Tort Law – Turning Blood into Whine: Fear of AIDS as a Cognizable Cause of Action in New Mexico (Madrid v. Lincoln County Medical Centre)^[16] puts the point thus:

“Anxiety arising from the possibility of contracting HIV and developing AIDS generally reflects public misperceptions, misinformation and ignorance about the disease.  Furthermore, HIV and AIDS promotes hysteria and irrational fears as well as prejudice, stigmatization, and discrimination against those who are infected with HIV.  Not surprisingly then, public misconceptions and social stigmas associated with AIDS have resulted in unsubstantiated fears arising from benign incidents resulting in an influx of fear of AIDS claims.  Generalized ignorance and social stigmas surrounding AIDS implicate serious public policy concerns that compel the adoption of the actual exposure rule….”^[17]

52. In the case of BRZOSKA V. OSLON^[18]the Supreme Court of Delaware warned about the dangers of blindly applying the common law principles governing recovery of damages for emotional distress to generally AIDS Phobia cases.  The court reasoned as follows:

AIDS is a disease that spawns widespread public misconceptions based upon the dearth of knowledge concerning HIV transmission.  Indeed, the plaintiffs rely upon the degree of public misconception about AIDS to support their claim that the fear was reasonable.  To accept this argument is to contribute to the phobia.  Were we to recognize a claim for the fear of contracting AIDS based upon mere allegation that one MAY have been exposed to HIV, totally unsupported by any medical evidence or factual proof we would open a Pandora’s box of “AIDS Phobia” claims by individuals whose ignorance, unreasonable suspicion or general paranoia cause them apprehension over the slightest of contact with HIV infected persons and objects.  Such plaintiffs would recover for their fear of AIDS according to the plaintiff’s POTENTIAL– not ACTUAL – exposure to HIV.

53. The development of law in AIDS Phobia cases should facilitate rather than hinder public health measures targeted at constraining the spread of AIDS.  Public health perspective is first and foremost focused on prevention and is therefore reliant on the individual’s willingness to be tested.  What is underscored is the importance of voluntariness, confidentiality and education in the fight against HIV and AIDS which is what HAPCA seeks to actualize.  Such lofty and justified public health oriented schemes may however be thwarted by the imprudent use of civil and criminal law, hence the need for circumspection that we hereby advocate for.

54. In what follows, we will, taking into account the policy considerations discussed herein, apply the law governing recovery of damages for emotional distress to the facts of this case with a view to ascertaining whether the application of the law as aforesaid is consistent with the grant or denial of the orders sought in prayers (b) and (c) of the claimant’s statement of claim herein.  As we have already stated hereinabove, we do not have jurisdiction to entertain the relief sought in prayer (a) of the statement of claim and accordingly we will not deal with that prayer at all.

D) WHETHER THE CLAIMANT HEREIN IS ENTITLED TO THE ORDERS SOUGHT IN PRAYERS (b) and (c) OF THE STATEMENT OF CLAIM

55. The facts and evidence of this case have been examined earlier.  We shall, however, revisit the same in an endeavor to establish whether the claimant herein is entitled to the orders sought in prayers (b) and (c) of the statement of claim, wherein the claimant sought damages for bodily harm, emotional distress and psychological anguish, which he quantified at Kshs. 1,100,000.

56. In his evidence before this tribunal, he alleged that he met and fell in love with the Respondent in 2012 when they met at [Particulars Withheld]  University School of Accountancy where he had gone to pursue a course in Chartered Financial Analysis.  He testified that in the period between 2^nd May 2013 and 9^th October 2013 they lived together as lovers.  During that period, he alleged that the Respondent deceitfully failed to disclose to him that she was HIV positive with the intention of infecting her with HIV.  He narrated how on their first sexual encounter, he wanted to use a condom but the respondent refused and insisted on having unprotected sex.  He informed the tribunal that thereafter they regularly and routinely engaged in unprotected sex until 9^th October 2013 when, she informed him that she was no longer interested in the relationship.  This infuriated the claimant who reacted by splashing water on her.  That is when she got mad and disclosed to the claimant for the first time that she had already infected him with HIV virus.

57. The claimant alleged that following this disclosure, he suffered severe psychotic episode and was admitted at Avenue Hospital in Parklands, Nairobi.  He testified that he also suffered bitterness, anxiety, restlessness, depression and was unable to do what he used to do before.  He felt sluggish, fatigued most of the time, and was unable to gain pleasure in what he used to enjoy doing.  He said that he suffered anxiety disorder and was on high “alert for any accident or injury.  He also became suicidal.  For these reasons, the claimant alleged that he failed the course he was pursuing at [Particulars Withheld] University.

58. He later subjected himself to HIV testing which revealed that he was HIV negative and repeated tests confirmed the same.  He stated that the respondent was mad when she learnt that he was HIV negative and openly declared that she would revive the relationship with him only if he was HIV positive.  This led to the claimant to feign HIV positivity.  The claimant also narrated how the respondent told him that she had infected other men.

59. The above evidence given by the claimant were never controverted by the Respondent who chose not to defend the proceedings even after being served with summons and even in spite of substituted service in a local daily newspaper, on the orders of this tribunal.

60. As concerns the HIV status of the Respondent, the claimant applied for orders compelling Family Health Options, the Respondent’s doctors to submit her HIV status.  The said Respondent’s doctors, by consent which was recorded before the tribunal, agreed to submit proof of the Respondent’s HIV status which was done.  The evidence presented before this Tribunal actually confirmed that the Respondent was HIV positive. The claimant also applied for and was granted orders compelling Safaricom Limited to produce before this Tribunal the transcript of the Respondent’s Cell Phone Number which would show the messages that were exchanged between them via their cellphones.  Such text messages would confirm that the Respondent openly evinced an intention to infect him with HIV. Safaricom Limited responded by stating that given the lapse of time, the information sought could no longer be retrieved.

61. In order to persuade this tribunal to grant the orders sought, the claimant relied on TWENTY-EIGHT (28) American authorities.  Some of them were neither relevant   nor useful to the claimant’s case.  The authorities which we found relevant, and on which he placed substantial reliance, include the following:

(a) JOHNSON V. WEST VIRGINIA UNIVERSITY HOSPITAL^[19]

62. In this case, a police officer who was sent to subdue an AIDS patient suffered a deep cut on his hand when the patient bit him.  The Supreme Court of West Virginia noted that he had a prima facie case for emotional distress for fear of AIDS.

(b) KAEHNE V. SCHMIDT^[20]

63. In this case the plaintiff was injured in an accident and was given unscreened blood as a result of this accident.  Because he received unscreened blood, the plaintiff feared sought damages for emotional distress caused by the fear of AIDS and was allowed recovery.

(c) CARROLL V. SISTERS OF ST FRANCIS HEALTH SERVICES^[21]

64. In this case the plaintiff was permitted to proceed with a cause of action alleging damages for emotional distress for fear of AIDS. The plaintiff who was visiting her sister in a Hospital washed her hand in a wash basin.  Reaching for a paper towel, she unknowingly put her hand into a container used to dispose needles and was pricked on three of her fingers.  Although she tested negative for HIV six times in a period of 3 years the court found her fear of AIDS reasonable.

(d) COTITA V. PHARMA-PLAST USA^[22]

65. In this case a nurse won damages for his fear of developing AIDS when an improperly packaged hypodermic needle stuck his hand while he was wearing plastic gloves splattered with HIV contaminated blood.

(e) CHRISTIAN V. SHEFT^[23]

66. In this case Rock Hudson’s homosexual lover recovered damages from Mr. Hudson’s estate for his fear of developing AIDS.

(f) WHELAN V. WHELAN^[24]

67. In this case a husband who had engaged in sexual relations what his wife told her that he was HIV positive knowing that in fact he was not. Under these circumstances, the court found that the plaintiff had a valid claim for intentional infection of emotional distress.

(g) BARANOWSKI V. TORRE^[25]

68. In this case the defendant who had engaged in homosexual relations with the plaintiff falsely informed the plaintiff that it was unlikely that he, the defendant, was HIV positive owing to the fact that his previous homosexual partner had died of cancer.  The truth, however, was that he had died of HIV.  On discovering the truth, the plaintiff sued for emotional distress caused by the fear of AIDS and he succeeded.

(h) FAYA V. ALMARAZ

69. Where the defendant doctor operated on the two plaintiffs during the period when he knew he was HIV positive.  Both plaintiffs learnt of the doctor’s HIV positivity more than one year after each individual plaintiff’s last operation.  Both plaintiffs tested HIV negative and in spite of that, they both succeeded.

70. There does not appear to be any local authority on this point.  But the law appears to be well established. To succeed, the claimant must prove the following:

(i) That the respondent owed him a duty of care;

(ii) That the respondent breached that duty of care;

(iii) That he suffered damage as a result of the respondent’s breach of that duty of care;

(iv) That the damage suffered by the claimant was reasonably proximate to the respondent’s breach of duty;

(v) That the claimant’s fear was reasonable having regards to all the circumstances of this case.

71. We shall consider each of these issues in the order in which they are presented hereinabove.

(I)  WHETHER THE RESPONDENT OWED THE CLAIMANT A DUTY OF CARE

72. The claimant and the respondent were intimate lovers who lived in the same house and routinely engaged in unprotected sex.  In his article entitled “Towards a more Balanced Treatment of Negligent Transmission of Sexually Transmitted Diseases and AIDS”. Mathew S. Sarelson^[26] identifies three possible bases of duty of care that would be owed by the respondent to the claimant in those circumstances.

(a) Duty by statute – Negligence per se

(b) Duty to disclose based on actual knowledge

(c) Duty to disclose based on constructive notice

73. In this case two statutes imposed a duty to disclose and/or a duty to take reasonable care to avoid transmission of sexually transmitted disease or HIV upon the Respondent; to wit, section 24 of HAPCA (which had not been declared unconstitutional by then) and Section 26 of Sexual Offences Act^[27].  These statutory provisions operated to impose 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^[28].  Apart from the statutory duty aforesaid, there was also a duty of care arising primarily from the fact that the respondent had actual knowledge of her HIV status.  Mathew S. Sarelson^[29] discusses the existence of the duty of care arising in similar circumstances in the following words:

“Every court that has considered the issue has held that a defendant who has actual knowledge of his or her infection with a sexually transmitted disease has a duty to disclose his or her infection to potential partners”.

74. In view of the foregoing, and without dealing with the third possible basis of a duty of care (because we deem it unnecessary in these circumstances) we find and hold that the Respondent owed the claimant herein a duty of care.

(II)   WHETHER THE RESPONDENT BREACHED THE DUTY OF CARE OWED TO THE CLAIMANT HEREIN

75. The fact that the Respondent herein refused to disclose her HIV positivity to the claimant for several months during which they routinely engaged in unprotected sex is prima facie evidence of breach on the part of the respondent.  The following additional facts confirm that, in this case, the respondent willfully and knowingly intended to infect the claimant with HIV:

(a) The fact that she refused to allow the claimant to use a condom during their initial sexual encounter.

(b) The fact that she lied to the claimant about the true nature of the drugs that she was taking.

(c) The fact that, on her own narration to the claimant, she had infected several other men (this evidence was admitted under Sections 14 and 15 of the Evidence Act^[30]in proof of the Respondent’s state of mind or intention).

(d) The fact that the Respondent openly told the claimant that she was unwilling to continue in a sexual relationship with the claimant if he was not positive.

76. In view of the foregoing, we find and hold that the Respondent breached the duty of care owed to the claimant herein.

(III)  WHETHER THE CLAIMANT SUFFERED DAMAGE AS A RESULT OF THE RESPONDENT’S BREACH OF DUTY AS AFORESAID

77. As already explained, to succeed in an action for damages for emotional distress, the claimant must 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 as was the case in WILKINSON V. DOWNTON^[31].  In this case, the claimant testified that he suffered a severe psychotic episode that led to his admission at Avenue Hospital in Parklands, Nairobi, and that he suffered bitterness, anxiety, restlessness, depression, anhedonia and even became suicidal.  This led to his failing the course he was pursuing at [Particulars Withheld]  University.

78. In our view, these constituted physical manifestation of the emotional distress suffered by the claimant.  However, when the claimant appeared before the tribunal, it was noted that he appeared to have had pre-existing mental or psychiatric problems which were, no doubt, exacerbated by the situation that he was going through.  However, by placing reliance on the egg-shell skull principle of the law of tort, the Respondent must take the claimant as he found him and will not be excused from liability by reason only of the special vulnerability of the claimant and emotional psychiatric disorders.

(IV) WHETHER THE RESPONDENT’S CONDUCT PROXIMATELY CAUSED THE CLAIMANT’S MENTAL AND PSYCHOLOGICAL DISTRESS

79. The next issue to be considered is whether the Respondent’s conduct was the real cause of the Claimant’s mental and psychological distress which manifested itself in psychotic disorder, bitterness anxiety, depression, restlessness and anhedonia. In order to determine the question whether the claimant’s mental and psychological distress was caused by the respondent, courts and tribunals normally consider whether there was exposure to a disease causing agent to (the HIV virus) not  exposure to the medium in which it exists such as blood, seminal fluids  etc. in our view, contrary to the position taken in many of the American decisions outlined herein above, mere exposure to the medium that may or may not contain the disease causing agent (in this case HIV), without proof that the medium actually contained the disease causing agent itself, is not sufficient proof of exposure, and cannot form the basis of a rational fear of disease.  Our position herein finds support in James C. Maroulis’ article “Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Fear of AIDS?^[32]”in the following words:

“Strong public policy reasons indicate that courts should limit HIV-negative plaintiff’s ability to recover for fear of AIDS. AIDS is a fatal disease that has reached epidemic proportions. Given the natural fear that people have for this disease, allowing liberal recovery will encourage individuals who wrongly believe that they have been exposed to HIV to bring suits alleging emotional damages. Many people are misinformed about how AIDS is transmitted and may incorrectly believe that they have been exposed to the virus………..

Given all these potential problems, courts should use a variety of rationales to preclude plaintiffs from recovering for fear of AIDS. Courts should carefully adhere to the injury requirements and more importantly ..require plaintiffs to demonstrate evidence of actual exposure (not potential exposure) to the virus. Strict adherence to the exposure requirement is logical because it is unreasonable for the plaintiff to fear a virus if he was not exposed to the virus…..”

80. If this approach had been used by the courts that decided the cases of CARROLL V.SISTERS OF ST. FRANCIS HEALTH SERVICES INC^[33]and KAEHNE V.SCHMIDT^[34] then the plaintiffs would not have succeeded, because in those cases, what was proved was not exposure to the virus but rather exposure to the medium that may or may not contain the virus. This indicates that some American Courts are using very liberal standards in AIDSphobia cases which we believe should not be the case here in Kenya.

81. In the circumstances of this case, we find that the claimant was indeed exposed to the virus because the evidence presented to the Tribunal by Family Health Options (The Respondent’s Doctors) actually confirmed that the respondent was HIV positive at the material time.

82. Accordingly, we find and hold that the claimant’s emotional and psychological distress was proximately caused by the Respondent’s act of exposing him to the virus.

(V)  WHETHER THE CLAIMANT’S ALLEGED FEAR WAS REASONABLE

83. The final question that this tribunal must address with regards to the question of liability to damages for emotional distress is whether the Claimant’s emotional distress was reasonable. Even where all the conditions for recovery are met, recovery will only be allowed where the claimant proves that his alleged fear of AIDS was reasonable. This involves examining the degree of probability that the claimant will develop a disease; the greater the probability, the higher the likelihood that courts and tribunals will find that the fear was reasonable and vice versa. We hold that courts and tribunals should dismiss emotional distress cases where the evidence adduced on behalf of the claimant or plaintiff merely proves that future infection “might occur” or “cannot be ruled out” or is “remotely possible”. In such cases the plaintiffs or claimants fear should be deemed unreasonable.

84. A plaintiff who has tested HIV negative should not continue to fear AIDS because HIV tests are more than 99% reliable. Some courts have given insufficient weight to the fact that a plaintiff has tested HIV negative. For example, in the case of JOHNSON V. WEST VIRGINIA UNIVERSITY HOSPITAL INC^[35], a police officer recovered 1.9 million United States Dollars for alleged fear of AIDS in spite of the fact that he had repeatedly tested negative for HIV. In that case, the court stated that the plaintiff recovered the aforesaid damages for “past, present and future fear that he might develop AIDS.” It is difficult to understand how the plaintiff’s fear of developing AIDS in future can be said to be reasonable in view of the repeated tests all of which had confirmed that he was HIV negative. By upholding an award for “future fear of AIDS” by a person who has repeatedly tested HIV negative for over a period of three years, the court was clearly sending a message to the public that it is reasonable to fear AIDS even when the medical community has given an assurance that there is absolutely no chance of future development of AIDS.

85. The claimant herein did not indicate whether he is seeking damages for past, present or future development of AIDS. We hold however that he has no right in law to seek damages for present or future fear of developing AIDS. This is because he undertook several HIV tests, all of which confirmed that he is HIV negative. He therefore does not have any reason to fear AIDS, either presently or in future, arising out of exposure thereto by the Respondent.

86. On the contrary, we find that his 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, and accordingly we find the Respondent liable to him for damages with respect to that period only.

87. Finally, we note that apart from the single incident when the claimant alleges that he wanted to use a condom but the Respondent refused, there is no other attempt on the part of the claimant to use a condom. This indicates that the claimant either assumed the risk of HIV infection or that he was reckless and did not bother to take reasonable precautions for his own safety. He never even bothered to inquire from the Respondent concerning her HIV status. In these circumstances, we opine that it would be wrong to hold the Respondent wholly responsible for the claimant’s misfortune.

88. If there is one thing more than another that public policy requires, it is that every individual should take responsibility for his/her own safety. It would be wrong for this 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 inheres upon the Respondent herein must be complemented by the duty on the part of the claimant to take reasonable precautions for his own safety and to ask all relevant questions. Because the claimant herein failed to take reasonable precautions for his safety, we hold him 50% contributorily negligent.

(VI) WHAT IS THE QUANTUM OF DAMAGES PAYABLE

89. Having found that the claimant was willfully exposed to risk by the Respondent and as a result his psychiatric condition exacerbated as aforesaid, we find that the Respondent is liable to compensate him in damages. The claimant submitted before this tribunal that he ought to be awarded Kshs. 1,100,000/= in damages. To this end, he   has relied on many authorities on the quantification of damages:

• Mollen vs. Kaiser Foundation Hospitals[36]

• Hailey v. California Physicians’ Service[37]

• Schild v. Ruybin[38]

• Walnut Creek Manor v. Fair Employment[39]

• Beagle v. Vasold [40]

• Sheila R. Rose v.  Dr. Alvin Pettle[41]

• Ambrose v. Carnevale

• Fakhri v. Alfalfa Canada Inc[42]

• Cardozo v. Becton, Dickson and Co,[43]

• Nunes v. Air Transat A.T. Inc[44]

• Georgina Fitzgerald v. Seven Tin and Yellow Cab Company Limited[45]

• Garner v Blue & White Taxi Cooperative Ltd[46]

• Brenda Ride out v Labrador Health Corporation[47].

90. In all these cases the plaintiffs were awarded damages as compensation for psychiatric harm arising from fear of contracting various diseases. The tribunal has gone through the authorities with keen detail.  However, most of the cases cited involved either the plaintiff suffering psychiatric harm for fear of contracting other diseases rather than HIV AIDS or psychiatric harm arising from being exposed to imminent physical injury. Other cases cited by the claimant involved suffering psychiatric harm arising from housing discrimination.  Accordingly, the tribunal finds that these authorities are not relevant to the case at hand.

91. Similarly the case Brenda Ride out v Labrador Health Corporation. which the claimant heavily relied on  has not been helpful in the quantification of damages.  In that case the defendant’s gynecological clinic had failed to properly sterilize medical instruments thereby exposing the plaintiff and other patients to HIV; Hepatitis B;   Hepatitis C; Chlamydia; or gonorrhea. as a result the plaintiffs alleged that they together with their matrimonial partners suffered psychiatric harm. The case is however not concluded but was only allowed to proceed as a class action. Indeed, the claimant only cited the pleadings of this case which had been filed at preliminary stage.

92. However, guidance can be gleaned from various cases where court awarded damages to persons suffering Psychiatric harm arising from the fear of being infected with HIV AIDS. In both Garner v. Blue and White Taxi Co-operative Ltd.  and Georgina Fitzgerald v. Seven Tin and Yellow Cab Company Limited, the plaintiffs were pricked by   used syringe needles that had been left by   unknown passengers in the back seat of the defendants’ taxis. Each plaintiff feared against HIV infection. In Garner, the plaintiff suffered acute mental anxiety during four years of medical testing before he was conclusively pronounced HIV negative.  Court held that compensatory damages of US $ 5,000 would be sufficient in the Garner case while that of US$ 15,000 would be sufficient in the latter case.

93. In Peters Brown Vs. Regina District Health Board[48], the Court of Appeal of Saskatchewan affirmed an award of US$ 5000 for nervous shock to a plaintiff following the defendant hospital improper release of confidential patient information relating to the plaintiff’s potential risk of exposure to HIV.

94. Similarly, in the case of Cardozo vs. Becton, Dickson & Co, the patients who had allegedly received incorrect tests for sexually transmitted diseases and required retesting received between US$ 400- 900 each.

95. In the instant case, the amount of US$ 5,000 would be sufficient since as explained above, the claimant can only recover 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. Again, as analyzed above, this fear of being infected was not the sole cause of his psychiatric suffering.  He had earlier exhibited this tendency which had made him be taken to three hospitals after failing his CFA examinations at [Particulars Withheld]. The fear only exacerbated the illness. Further, he will not be entitled to recover for future fear of infection since in any case; he continued to voluntarily assume risk by engaging in unprotected sex even after learning that he was HIV negative and the Respondent was positive.  This award then   translates to Kshs 525,000/= However, having found that the claimant was 50% contributorily negligent, the Sum of Ksh. 262,500/= would be sufficient compensation as general damages for suffering psychiatric harm due to HIV AIDS exposure.

96. Apart from the general damages aforesaid, we also award interest at the rate of 12% together with the cost of this court.

It is so ORDERED.

DATED and DELIVERED this  22^nd day of  July, 2016.

JOTHAM ARWA (Chairman)                             _____________________________

ANGELINE SIPARO (Vice Chairperson)           _____________________________

MERCY DECHE (Member)                                 _____________________________

MOHAMMED KULLOW (member)                   _____________________________

DR. STELLA BOSIRE (Member)                         _____________________________

JOE MURIUKI (Member)                                     _____________________________

PROF. JULIUS KYAMBI (Member)                   _____________________________