COVID-19 - Consideration of potential areas for EL/PL claims

Published 29 May 2020

Emerging information from key clients in the commercial and health and social care sectors and our observation of Claimant behaviours around Covid-19 suggest that EL/PL claims are likely to follow. We have broken down some of the key issues relating to these potential claims below:-

1. Claims arising out of issues surrounding PPE. This appears to be the most likely target area given the press coverage and general concern raised by care home staff.

There is a raft of statutory duties owed by employers to employees under e.g. COSHH, PPE, MHSW Act but these are no longer capable of giving rise to civil liability following the Enterprise Act. It is likely Claimants will take the opportunity to seek to clarify the line of decisions which sought to explore the impact of the Enterprise Act ie Cockerill v CXK, Tonkins v Tapp and challenge the proper interpretation of Section 69 Enterprise Act in respect of statutory duty and negligence given the subtle differences between the duties owed. It is also possible there may be some legal activity around the application in UK courts of European Directives.

Breaches likely to be relied upon in negligence are sufficiency of supply of PPE, whether PPE supplied was fit for purpose, whether sufficient training and guidance was given in relation to the use of PPE, and in turn that may prompt issues relating to whether the guidance which emanated from HM Government/PHE/NHSE was appropriate, clear, concise and capable of being followed. As a result the claims will become complex. Whilst the majority will fall within the portal, issues of proof of diagnosis will be difficult for Claimants given the lack of testing outside the health and social care sectors. There may in due course be consideration of a separate protocol for Covid-19 claims.

It remains to be seen how the Courts will interpret breach of duty in the light of pandemic conditions with regard to reasonable foreseeability of the risk of injury and the worldwide shortage of effective PPE.

Causation issues will be complex. It seems likely Claimant legal teams will seek to rely on an extension of the Fairchild exception which identifies an inability to specify the source of any confirmed infection. The higher risk of developing Covid-19 from a single occupational source where it has been shown to be present – most probably in care homes and similar facilities, makes a Fairchild approach of ‘material increase in risk’ potentially attractive and will be an easier hurdle for Claimants to overcome than the ‘but for’ test.

Whilst there will need to be evidence around the timing of diagnosis of Covid-19 and therefore appropriate incubation period, and cross reference to the prevailing conditions (if accurately and persuasively recorded on a contemporaneous basis – we are advising a number of clients in relation to mitigating their position in that respect), these cases will be costly to defend and involve the need for expert evidence. The pool of potential experts given the number of epidemiologists and virologists advising individual Trusts and HM Government is likely to be small and consideration should be given to identify an appropriate expert(s) at this stage. Similarly, the issue of causation will be contentious and advice from leading silk practising in disease litigation may be a sensible precaution.

Necessary steps in defending breach of duty are likely to involve securing evidence of PPE provision, training and the level of communication from colleagues of Claimants. This will be potentially divisive at what may still be a critical time in the provision of care whilst the pandemic continues without sight of an effective vaccine. The risk of significant employee relations issues should be considered and the impact that will have on the availability of evidence and, therefore cost of litigation. The prevailing national mood for challenging any such claims should also be a factor taken into consideration in strategic planning.

2. Other claims in the EL arena are likely to focus on failure to enforce social distancing policies and to provide appropriate hygiene facilities. Issues of reduced staffing, use of unfamiliar agency staff, unfamiliar and increased workload may all give rise to the potential for errors in the provision of care and the performance of job description which may give rise to the potential for EL and PL claims. The reduced availability of staff and implementation of social distancing requirements is likely to lead to an impact on the way in which manual handling is undertaken and whether existing guidance can practically be followed. There is likely to be increased temptation to manage alone and the courts are unlikely to be quick to criticise that in the present circumstances.

3. There is a possibility of findings of vicarious liability on the part of an employer where staff have failed to self-isolate. Policies around health surveillance will be key to this. Again, investigation of these issues is likely to be divisive and need very careful handling for large Corporate risks.

4. The combination of the above issues is likely to increase the risk of significant numbers of workplace stress and psychiatric injury claims brought by frontline staff, even where there have been no symptoms of the virus. Senior Managers in the healthcare sector are making very difficult decisions with limited resources and Government advice which has changed significantly over a short period of time. They may be doing this whilst working from home so without the usual supporting networks. That would appear to form a solid basis for this type of claim. This may be an issue which will evolve slowly once the pandemic starts to flatten out and the national response to NHS and care workers falls away. Again, these cases will involve investigation of colleagues which is likely to be highly sensitive.

5. We expect to see legal challenges around this area where Claimants will rely on foreseeability of injury to primary victims under Page v Smith and seek to extend those principles. The Defendant’s position following the plaques litigation (Johnston v NEI) and the failure of a claim for psychiatric injury where there has been no ‘event’ triggering the psychiatric response should be maintained strongly in respect of any such claims.

PL Claims

In relation to the Covid-19 exposure claims, there is support allowing family members to recover if it can be shown on balance it is the exposure of the employee which has caused the cross contamination.

Again there will be issues relating to foreseeability and causation and the longer the chain of cross infection, the more difficult that will be to prove on a balance of probabilities given the more likely impact of environmental exposure.

These cases are likely to be strongly pleaded, they will all rely on independent factual evidence which makes the possibility of a class action unlikely as the factual background of each claim will impact on any assessment of causation as well as on breach. The costs exposure suggests a need for collaboration amongst stakeholders and pressure to identify economies of process and procedure so that costs do not risk overwhelming the system.

Mitigating Actions

Managing the response to the Covid-19 pandemic is inevitably a task in managing competing risks and reaching well considered, evidence based, reasonable judgements on the actions that can and should be taken to mitigate risks to as low a level as possible.

It is therefore important that all decisions and actions are taken following careful risk assessment which considers legal obligations, but also the practical challenges in implementing specific mitigating measures (for example recognising the practical difficulties in enforcing social distancing amongst certain patient groups, or the limited availability of PPE).

It is likely that claims (or regulatory enforcement action) arising from the pandemic will continue for some time and it is vitally important that when decisions are made and implemented (particularly when circumstances are changing quickly and actions taken on an urgent basis), these are documented, including a clear record of the risk factors taken into account and the reasons why the action or decision was considered to be the most appropriate next step in the circumstances, at the time.

By way of specific examples, matters that policyholders should consider include:

• The starting point position in all decision making is to adhere to relevant Government or sector specific guidance available at the time and completion and regular review of local risk assessments;

• Specific Covid risk issues (for example PPE and staffing) should be standing agenda items on meetings of the senior management team. These discussions should be recorded as evidence of the attention and resource that is being provided to managing this issue;

• Implementation of tracker systems to effectively monitor supply levels and respond quickly (where there is an option to do so) to prioritise use of resources as needed. A tracker system can also be used to assess capacity to manage service users in the social care sector and accept new admissions, in light of available resources and share this information on a regional and national basis. This will allow effective communication to ensure admissions are allocated in the most appropriate way given the availability of resources at any given time; and

It is, of course important that policyholders maintain records of all actions and decisions taken so they can be reviewed in response to specific claims or questions. DAC Beachcroft are collating a central repository of all guidance issued for cross reference purposes at a later stage and advising key clients in the health and social care sectors in respect of the above risks and their possible exposure.