By John Mackenzie – arch.portfolio member.
Covid – Part 2
Covid Claims – What next?
In this my second blog on the subject of Covid-19 I will explore the issue of civil claims for injury arising from Covid-19 in the workplace.
To date there have been fewer claims than perhaps anticipated arising from Covid-19. I will explore the reasons behind this and whether this could change in the future. I will also discuss strategies which may be adopted in the defence of such claims, should they arise.
Claims
In the period 10 April to 12 June 2021 33,448 notifications of disease caused by possible occupational exposure to Covid-19 were reported by UK employers to enforcing authorities (Local Authorities, HSE) including 402 deaths. In fact, this likely represents a significant under-reporting of the actual figures of disease and death actually where occupational exposure is a potential cause.
However, this has not been accompanied by a similar surge in Civil claims for compensation against employers for injury (namely industrial disease) resulting Covid-19. This begs the question as to why we have not – as yet- seen more such claims to date.
Breach
In order to succeed the Claimant would have to show that a Defendant’s breach of duty caused the disease. Guidance was issued to employers about safe working including risk assessment and resulting control measures including:
- PPE
- social distancing,
- hygiene
There were also certain specific risks arising to certain occupations and sectors. Failure to implement or enforce such a system could be problematic for a defendant. Notwithstanding the relaxation of guidelines in relation to the population as a whole, employers are under a continuing obligation to employees in respect to the ongoing risks of Covid in the workplace.
However, I suspect that breach of duty will not be the hardest thing for a Claimant to show in order to succeed.
Prescription
Covid-19 is not as yet a ‘prescribed’ disease as defined by the Industrial Injuries Advisory Council. (IIAC). A disease is ‘prescribed’ if it is a known risk arising from an occupation. Certain viral infections are prescribed diseases such as eg hepatitis B and C within healthcare. The IIAC position paper 48 sets out their position on prescription. Namely that the health effects arising from workplace exposure to SARS-Cov-2 cannot be distinguished from infection transmitted in non-occupational circumstances. The IIAC thus looks for robust research evidence that the risk of developing the disease is more likely than not to have arisen from occupational exposure.
The lack of prescription to date may partly explain the main reason behind the hesitance to bring a civil claim. The lack of prescription does not in itself bar a Civil claim from being made but it does underscore the central problem which a Claimant would face in trying to bring a claim. Covid-19 is a disease which can easily be caught outside of a workplace setting. As we know, the disease is highly contagious and easily acquired in certain settings merely by touching an infected surface.
It is difficult for a Claimant to show that the disease was likely caused at work, rather than somewhere else. I suspect that this is the main difficulty which a Claimant faces in bringing such a claim.
Test for Causation
A Claimant would have to try and show, on balance of probabilities that work, (rather than non-occupational exposure) was the cause of the disease. The Court’s may not invoke a simple “but-for” test of causation in claims for Covid-19. Namely: but for the index occupational exposure the Claimant would not have developed the disease. That would be extremely difficult for a Claimant to prove that occupational exposure caused the disease.
The test may be modified so that the Court may instead apply a “material contribution test.” Where medical science cannot establish the probability that but for the defendant’s negligence, the injury would not have happened, but can establish that the contribution of the negligent cause was more than negligible, the test should be modified to the ‘material contribution’ test. If medical science is unable to quantify the contributions of the various causes, but can say that the contribution of the negligent factor was more than minimal, the Defendant will be liable in full. Alternatively, in fact it may be necessary to show by means of expert epidemiological evidence that the negligent occupational exposure “doubled the risk” which a Claimant would otherwise have had (from non-negligent causes) of developing the condition.
Claims
The cost of bring such claims and perhaps funding of epidemiological evidence would be significant for a Claimant Solicitor with an uncertain outcome. Where there has been a cluster of workplace infections, a Claimant may invite the inference that alleged breaches of duty did in fact cause the disease. A cluster of infections would support the inference that control measures were inadequate. However, in certain environments such inference could be incorrect eg educational settings. Other external risk factors including for example mode of travel may contribute to the risk. As we know, correlation does not establish causation.
Damages
Where the employee has died, a claim may be made on behalf of the estate of the deceased under the Fatal Accidents Act 1976. Such claim could be for significant damages, such as we see in asbestos claims – potentially several hundred thousand pounds.
Where the Claimant did not die, ‘Long Covid’ represents a potential ongoing problem for certain people, This is not limited to old people, as discussed in my first blog. Damages here may relate to ongoing disability for organ damage or respiratory problems and will vary widely.
Defence Strategy
In terms of the defence of such claims, a robust approach will very often be merited. As is often the case with disease claims, floodgates can apply – such that settlement could encourage other claims. An interrogation of the Claimant’s evidence including the following issues should be sought:
- social history – A trawl of social media would be a useful tool
- Mode of Travel to work
- Adherence to hygiene guidelines at work and generally
The Future Landscape
Whilst currently claim numbers remain modest; as the science and research develops, this may impact upon the prospects of bringing a successful claim in the future. The threat of Covid claims may not merely be a legacy issue but one with an ongoing potential. In the meantime, employers should maintain a cautious risk-based approach to prevention and control measures at work as appropriate to the sector.
Employers should continue to be vigilant as to the ongoing risk of disease. It remains to be seen whether these claims will eventuate in significant numbers.
For further information, please contact arch.law Portfolio member John at John.mackenzie@arch.law
