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Could you be criminally liable for coughing or sneezing on someone?

With growing fears of the Coronavirus, everyone has been a little more cautious about the spread of germs in recent days. Perhaps you have even thought to politely ask...

Zoe Whetham

With growing fears of the Coronavirus, everyone has been a little more cautious about the spread of germs in recent days. Perhaps you have even thought to politely ask your fellow commuter to cover their mouth when coughing but feared that they may take offence.

Physical contact that occurs in the ordinary course of everyday life, such as accidentally nudging someone on a crowded bus, does not amount to assault.

But is it a criminal offence for someone to intentionally cough or sneeze at you?

A common assault under section 61 of the Crimes Act 1900 (NSW)can be established by proving that a person intentionally or recklessly:

  • Made physical contact with another person (sometimes referred to as battery); or
  • Caused another person to apprehend immediate and unlawful violence

without consent and without a lawful excuse.

In the case of DPP v JWH, the accused was taken into custody at Mount Druitt Police Station when he tried to make a run for it. A police officer grabbed the accused and put him back in the dock when the accused spat at the officer’s face and shoulder. The Court found that the accused had committed the offence of assault as the spit had made physical contact with the police officer. It is important here that the accused had the intention to actually spit at the police officer.

Therefore, in principle, coughing or sneezing may be treated in the same way as spitting if bodily fluids make contact with another person. Alternatively, it may also be an assault if no contact is made but the person intentionally or recklessly causes another person to fear that such contact would be made.

In practice, such an act is unlikely to be charged. However, it’s best to be safe and avoid sneezing or coughing on others!