Litigation is disaster’s camp follower. There is no reason to think that this pandemic will be any different. The NHS has been severely strained, but has thus far avoided being overwhelmed by a tidal wave of patients, as it was once feared it could be. Might it, though, be overwhelmed by a tidal wave of litigation?
This article examines potential claims arising out of one issue: the provision, or lack of provision, of personal protective equipment (PPE). It suggests that claimants may seek to draw analogies with principles laid down in mesothelioma cases, and examines whether the Government will attempt to protect the NHS and the wider economy by legislation, whether by granting immunity to public bodies and healthcare professionals, or introducing a tariff for claims.
PPE is a political hot potato. The Government’s actions and inactions have come under intense scrutiny. For example:
- The Doctors’ Association UK has called for a public enquiry into what it alleges are failings in the procurement and dissemination of PPE, citing a survey which found that of 1,197 respondent doctors, 38% had worked without eye protection, and hundreds had gone without masks, gowns or eye protection.
- On 28 April an investigation by the BBC’s Panorama programme concluded that the Government failed to buy crucial protective equipment to cope with a pandemic. Specifically, it claimed, there were no gowns, visors, swabs or body bags in the pandemic stockpile when Covid-19 reached the UK, and vital items were left out of the stockpile when it was set up in 2009, despite warnings from advisers to buy missing equipment.
- There are concerns that the equipment which is available is not fit for purpose. Some frontline staff are apparently being told to re-use single-use PPE, and there are concerns that some of the hastily-produced equipment provided through unusual channels does not mean appropriate standards recommended by the World Health Organisation, EU, and International Red Cross. Shortages have driven some hospital staff to use visors donated by owners of 3D printing equipment; but these can feature gaps which allow aerosols and splashback to come into contact with the wearer.
- On 6th May 2020 it was reported that 400,000 gowns ordered from and supplied by Turkey did not meet NHS safety standards and were being returned, having never left the Heathrow hangar to which they were delivered.
The numbers of those infected may be on a downward trend, but the PPE issue is not going away any time soon. On 26th April newspapers reported that a 90-day projection commissioned by the Government had found that the UK will be short of up to a billion items of PPE over that period, and the London Ambulance Service has changed its guidance to paramedics so that more patients with suspected coronavirus are likely to be taken to hospital in the capital.
In response to relentless pressure, the Government announced on 27th April that it will give £60,000 to the families of NHS and social care workers who have died after contracting coronavirus in the course of their duties; but this lump sum will not affect their legal rights.
The First Claims?
Two doctors, a GP and his wife, a clinical fellow, have intimated a claim in a letter to the Department of Health. They allege that Government guidance on the use of PPE is unclear, inconsistent with World Health Organisation advice, and exposes healthcare workers to a greater risk of contracting Covid-19. Now the Doctors’ Association UK and the Good Law Project have also intimated an intention to bring proceedings as a result of ‘failure to procure and supply adequate PPE’.
The exact nature of the two doctors’ claim is not clear from the fairly brief reports in the media, but it seems to involve a challenge to the rationality of the Government’s guidance by way of judicial review. It is possible, of course, that part of the motivation for intimating a claim in this instance is to increase pressure on the Government to act on PPE; but there will be other potential claimants who will seek financial compensation.
The uncertainties as to the litigation that will follow the pandemic reflect the uncertainties of the pandemic itself. But suppose we gaze for a moment into a crystal ball of, as it were, only a low wattage. What can be foreseen about the potential issues such claims might throw up? Here are a few suggestions.
Herd Immunity for the NHS?
Ironically, the idea of dealing with the sheer volume of claims likely to arise as a result of the pandemic by way of immunity from suit was first mooted by the Medical Defence Union, which sees it as a possible solution to the anticipated tsunami of clinical negligence claims. But if the NHS were to be granted immunity in relation to the negligence of its front line employees, could there be an argument in favour of it being granted a similar immunity in relation to the negligence of its procurement and management professionals? As Dominic Cummings would no doubt appreciate, the optics don’t look good; it is one thing to offer hard-pressed professionals immunity from suit in respect of decisions taken in the heat of a pandemic, but quite another to extend that immunity to management decisions taken in relation to long-term procurement.
One other interesting possibility is the potential for the concept of combat immunity to be extended to the NHS. Where the doctrine applies, the Ministry of Defence is immune from litigation where a combatant makes a negligent decision in the heat of battle, where, for obvious reasons, the MoD does not owe a duty to maintain a safe place or system of work. The doctrine was eroded significantly by the Supreme Court in Smith & others v Ministry of Defence  AC 52, in which it was held that it was contrary to Article 2 of the European Convention on Human Rights 1950 for claims relating to procurement, planning and preparation to be struck out, and that the doctrine should be narrowly construed. It remains extant, however, and was applied in R v Secretary of State for Defence  7 WLUK 554.
At first blush a doctrine relating to decisions taken in the heat of the battlefield may seem wholly inapplicable to a hospital setting; but the language deployed by the UK government and others, including healthcare professionals themselves, has drawn extensively on combat metaphors; as the Governor of New York Andrew Cuomo has said, ‘the soldiers in this fight are our health care professionals’, and even the United Nations Secretary-General Antonio Gutiérrez embraced the comparison during his remarks at a G20 virtual summit on the COVID-19 pandemic: ‘We are at war with a virus – and not winning it. …This war needs a war-time plan to fight it.’
If that is so, why should combat immunity not apply? Even if in principle it were to apply, however, it would be a difficult defence to make out in practice; the long term procurement and planning decisions undertaken in relation to PPE in the case of Covid-19 cannot be sensibly said to have been taken in the heat of battle, although the distribution and dissemination decisions might have been.
A Third Way?
There is a potential middle ground between liability and immunity. Lord Faulks QC of 1 Chancery Lane brings a unique perspective, having previously served as a Minister of State for Justice. In a recent article in The Times he observed that, even before the pandemic, the NHS was facing clinical negligence claims estimated at over £80bn. In such circumstances it might be attractive to the Government to use its legislative power to grant the NHS some form of immunity from suit (whether in relation to Covid-19 claims or generally), but, as Lord Faulks noted, any such legislation is likely to deemed incompatible with the European Convention on Human Rights 1950 by the European Court of Human Rights, and it would be a brave Minister indeed who certified that it was compatible with the Human Rights Act 1998, and in particular Articles 2 of the Convention (right to life) and 6 (right to a fair trial).
Instead, Lord Faulks suggests that clinical negligence claims against the NHS could be controlled by means of a tariff, similar to that already applicable to criminal injuries compensation claims; perhaps there could be an arbitrator akin to the Criminal Injuries Compensation Authority. There is no reason why such a scheme could not work in respect of employers’ liability claims against the NHS, just as it would in relation to clinical negligence claims; except that forcing healthcare workers to use an arbitral scheme is unlikely to be as popular with the MDU as the proposal that patients should have to use one.
So, then, assuming that frontline workers are able to litigate within the current legal framework, what are the issues likely to be?
Duty of care
All employers owe employees duties in respect of the provision of PPE, both at common law and under a wide array of statutory duties (albeit, post-Enterprise and Regulatory Reform Act 2013 the latter do not give rise to civil liability in their own right). Given that the latter, stricter, duties are no longer actionable, it will be interesting to see how the courts determine the content and scope of the common law duty given the particular features of the pandemic. Will they look sympathetically, for example, on an NHS trust which has tried desperately hard to source PPE but been prevented by the worldwide shortage? To the extent that there has been a failure to anticipate the possibility of a pandemic on this scale, where does fault for that lie: individual NHS trusts or central government?
Assuming that someone eventually takes responsibility for the provision of PPE to any particular worker, the scope of that duty will need to be determined. Covid-19 is, as we all know, a virus; is it also a ‘controlled substance’ pursuant to the Control of Substances Hazardous to Health 2002? If, as the authors believe, it is such a substance, employers owe a duty to risk assess, provide information, training and equipment, and control exposure to it, often by way of the provision of appropriate PPE, but also, in this particular case, quite possibly by way of sufficient quarantine measures.
Naturally, in the case of Covid-19, the nature and scope of the duty will depend greatly on precisely when the breach is said to have occurred; two of the features of the virus being its novelty, and the speed with which it appears to have spread worldwide. It may be that the reluctance of the Chinese government and of the World Health Organisation to cause widespread panic in response to the epidemic in Wuhan could prove advantageous to any employer defending claims arising from early exposure to the virus.
What if a family member of an NHS employee contracts Covid-19 which the latter has acquired due to inadequate PPE at work? Claimants may seek to argue by analogy with a recent “secondary” or “indirect” exposure case involving mesothelioma.
Margereson v J.W. Roberts Ltd  Env. L.R. 304 may be familiar to many readers. A factory in Leeds had allowed such large quantities of asbestos dust to escape that local children would use it in “snowball” fights. When considering the “extramural” duty of the factory owner the Court of Appeal (per Russell LJ) approved (at 306) the following words of the trial judge:
[T]here is nothing in the law that circumscribes the duty of care by reference to the factory wall … if the evidence shows with respect to a person outside the factory that he or she was exposed to the knowledge of the Defendants, actual or constructive, to conditions in terms of dust emissions not materially different to those giving rise within the factory to a duty of care, then I can see no reason not to extend to that extramural neighbour a comparable duty of care.
In Maguire v Harland & Wolff  PIQR P21 the majority of the Court of Appeal (per Judge LJ at ) said:
The principle approved in Margereson and Hancock in relation to environmental exposure to asbestos dust has potential application to cases of familial exposure. In summary, a family member is not precluded from establishing liability based on environmental contamination with asbestos dust. In an appropriate case, the environmental principle may apply to members of an employee’s family as to anyone else living in the immediate vicinity of premises working with asbestos…
The principles of secondary exposure set out in Margereson and Maguire were applied more recently in Carey v Vauxhall Motors Limited  EWHC 238 (QB). The Claimant in Carey had worked for in the Defendant’s factory in the 1970s. His evidence (accepted by the trial judge) was that he would come home from work with his overalls, skin and hair covered in asbestos dust. His wife would wash his overalls. When his wife subsequently developed mesothelioma, he brought a claim (in his own name and on behalf of his wife’s estate) alleging that the exposure at his work had caused his wife’s condition. The claim succeeded.
It would appear, therefore, that victims of both direct and indirect exposure to the virus could potentially bring claims against the employer. To what extent person-to-person transmission along a longer chain might give rise to claims will no doubt be litigated in due course.
Breach of Duty
Whether or not adequate PPE is available has been provided in a particular workplace is a matter of fact which of course will be addressed in evidence. The adequacy of the Government guidance in respect of its use will also no doubt be judged with reference to (inter alia) the WHO advice and to PHE’s own guidance. These matters of fact ought to be determinable with relative ease.
Proving causation, however, presents obvious difficulties for potential claimants. There has been widespread infection in the general population, and hence the potential for widespread exposure to the virus outside the workplace. How, then, could a claimant prove that it was a defendant’s breach of duty which caused or materially contributed to his injury? A few possibilities suggest themselves.
Seek to extend the “Fairchild exception”. The ordinary rules of causation are modified in cases of mesothelioma, following Fairchild v Glenhaven Funeral Services Ltd  1 A.C. 32, Barker v Corus UK Ltd  2 A.C. 572 and the Compensation Act 2006. The rule as stated by Lord Phillips in Sienkiewicz v Grief  UKSC 10 is as follows:
When a victim contracts mesothelioma and each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a material increase in the risk of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.
These special rules of causation developed because uncertainty as to the biological cause of mesothelioma made it impossible for a claimant to prove causation according to the conventional “but for” test. One suspects that the higher courts would be reluctant to extend such principles more widely, particularly if doing do might expose public bodies to very large financial burdens.
It should be noted that even if claimants are able to avail themselves of such an argument, under the Fairchild exception a claimant must still prove (a) exposure on the balance of probabilities (b) exposure in breach of duty (c) that the exposure in breach materially contributed to the risk of injury and was more than de minimis.
Deploy expert scientific evidence. A great deal, of course, remains uncertain as to how the virus is spread, but some early reports suggest that contracting the disease (and/or getting more serious symptoms) may be related to exposure to higher viral loads. Where claimants can marshal evidence that proves that their workplace exposure is likely to have involved such higher loads then courts may be persuaded on a simple balance of probabilities that it was that, rather than general environmental exposure, that caused them to contract the disease. Query also the extent to which genomics could be deployed to prove a link between the particular strain of the virus caught by a claimant and where they caught it.
Bring claims under the Human Rights Act 1998. The courts have the power to award compensation where Convention rights have been infringed by a public body, and no harm need have resulted. Such awards serve a different purpose to recovery of civil damages, and may be made even where a claimant has received redress through other means (such as civil damages and/or a statutory compensation scheme). Damages may be awarded when it necessary to provide “just satisfaction”, with the effect that the alleged victim, whether the healthcare worker or a member of his or her family, could establish his or her claim if it could be shown only that the violation of the right deprived him or her of a real chance of avoiding the outcome complained of; here, acquiring the infection. Quite how this would work in this particular case is difficult to predict; but it certainly raises some fascinating issues, with which the courts are likely to have to grapple in due course. In particular, how the courts would approach the issue of damages remains to be seen; in order to show that significant damage were payable, it may well be that the claimant would need to establish causation via the orthodox ‘but for’ route.
Rely on political pressure. NHS workers have never been held in higher public esteem. It may be politically toxic for public bodies to oblige bereaved families to engage in lengthy litigation in order to prove a causal link between workplace exposure and their loved one’s death. The Government’s pre-emptive offer of an ex gratia payment reflects this political reality (cf. mesothelioma claims which are usually brought against commercial entities and defended by their insurers, whose primary motivations relate to profit, not politics).
Quantum and Remoteness of Loss
One of the strange features of Covid-19 is that its effect varies from fatality to mild symptoms, or none at all.
At the most serious end of that spectrum the well-established principles of calculating loss in fatal cases are likely to apply, although where there are significant comorbidities (another frequent feature of Covid-19) there may be scope for argument as to the exact period by which a deceased’s life has been reduced.
For non-fatal cases which nonetheless cause hospital admission and/or ongoing symptoms then assistance may be sought from the Judicial College Guidelines brackets for asbestos-related disease and asthma.
But what of the cases which cause mild or no physical symptoms? Would someone in that category have a claim worth bringing if, for example, they suffered anxiety as a result of the fear that their symptoms might worsen?
Defendants may seek to pray in aid the decision of the House of Lords relating to pleural plaques (Rothwell v Chemical and Insulating Co  UKHL 39), where it rejected as unactionable claims for anxiety caused by the knowledge that such plaques were evidence of exposure to significant quantities of asbestos and hence the risk of developing fatal asbestos-related illness in the future. Rothwell, however, was a controversial decision, and subject to legislative reversal in Scotland and Northern Ireland. Claimants may argue that a better analogy is “needlestick” cases with which readers will be familiar where a relatively trivial physical injury carries the risk of a much more serious condition (e.g. an employee is pricked by a discarded syringe due to wearing inadequate gloves, and develops anxiety relating to a fear they may have contracted HIV as a result).
Claimants may even seek to claim that they have suffered psychological injury associated with the increased risk of contracting Covid-19 caused by inadequate PPE even if they do not subsequently go on to acquire the disease at all; but it is anticipated that the courts would seek to regulate the scope of such claims by taking a rigorous approach to causation and/or remoteness of damage.
The first salvos have been fired in the coronavirus litigation wars. It is likely to be a lengthy conflict.