15
Mar
20
Articles, Personal Injury, Travel & Cross Border Claims
Covid-19: The facts

Matthew Ford , Head of Travel at BLM and Sarah Prager, Senior Travel Barrister at 1 Chancery Lane, talk through the latest on Covid-19.

What is Covid-19, and how worried should we be about it?

Covid-19 is a new virus which attacks the respiratory system in humans. Because it has only been identified very recently, little is known about how it is spread, but it appears to be transmitted via cough droplets from those infected, either via person-to-person transmission or via hard surfaces. Outbreaks reported so far have occurred primarily as a result of close contact with those already infected, in family groups or other gatherings. It is not thought to be transmitted via food. The incubation period appears to be between one and 14 days, but inevitably there will be outliers for whom the incubation period may be longer, and a case involving an incubation period of 27 days has been reported. The World Health Organisation reports that the mean incubation period is between five and six days.

The regions particularly affected are presently the Wuhan and Hubei provinces of China, followed by the rest of China, Italy, Iran, the Republic of Korea, France, Spain, and Germany. As at 11th March 2020 the UK had 373 confirmed cases of the virus, with cases doubling every three or four days.

To put the problem in perspective, SARS, a related virus, infected just over 8,000 people from 2002 to 2004, with 774 fatalities. As at 12th March 2020, there were 124,519 confirmed cases of Covid-19 worldwide, with 4,607 confirmed deaths. So although there is a far greater risk of catching Covid-19, it appears to have a far lower mortality rate. As at 11th March 2020 the UK had reported six confirmed deaths as a result of Covid-19; an apparent mortality rate of 1.6%, although this is likely to be artificially low because of the exponential nature of the growth in numbers of cases.

Symptoms seem to last for two weeks if mild; more severe cases last for six weeks or so, and in the case of fatalities the illness tends to last for eight weeks. There is no cure; but in the overwhelming majority of cases the illness is mild, and the global case fatality rate (excluding China) is less than 2.4%, which does not compare unfavourably with the case fatality rate for SARS (10%) or MERS (34%). The case fatality rate for Ebola was a terrifying 50%.

The World Health Organisation has declared Covid-19 a pandemic; but this is merely a label reflecting the fact that the virus has now spread worldwide, as anyone who has turned on a television or opened a newspaper in the last few weeks would already be aware. The WHO continues to advise against the application of travel or trade restrictions against countries affected, because the evidence shows that such restrictions are not effective in preventing the spread of infection and have disproportionate social and economic effects; the WHO has observed that several countries that restricted inbound flights from China in the early days of the pandemic are now reporting cases of Covid-19, suggesting that the restriction did not work. Nor does the WHO recommend screening on arrival from affected areas, since affected travellers may be incubating the virus without symptoms or may have masked symptoms with medication; screening, it is thought, is not a good use of resources and may give a false sense of security.

Notwithstanding the WHO advice, on 12th March 2020 President Trump announced that from 20th March 2020 the USA will not accept travellers from Europe, other than from the UK, citing as his reasons the failure of the EU to take adequate prevention measures, and the fact that the EU has more confirmed cases of the virus than the USA.

Advice for Travellers

The WHO advises international travellers, and in particular the elderly and those with underlying health conditions, to delay or avoid travel to affected areas and to follow the hygiene measures with which we are all now familiar, namely frequent hand washing, covering the nose and mouth when coughing or sneezing, refraining from touching the nose or mouth. It is interesting to note that the WHO does not recommend the use of face masks, giving as its reason the fact that there is no evidence that wearing a mask of any type protects those who do not yet have the virus.

Travellers returning from affected areas should, so the WHO says, self-monitor for 14 days and contact local healthcare providers if symptoms occur. In the majority of cases, symptoms will be mild and will be similar to those of the common flu. It is a feature of the disease that almost 90% of sufferers exhibit a fever, and very few have a runny nose. Two thirds of those confirmed to have the virus have reported a dry cough, according to WHO statistics. So travellers returning from countries where the virus is widespread should contact their local health providers if they exhibit any fever or dry cough, and, in those circumstances, should self-isolate.

The NHS advises travellers returning from a list of particularly affected countries to self-isolate for 14 days, even if symptom-free, which is more cautious advice than that given by the WHO. In addition, the Foreign and Commonwealth Office is advising against any travel to Hubei Province in China, and all but essential travel to the rest of China, parts of South Korea or Italy. Again, this is more cautious advice than that of the WHO.

On 8th March 2020 the Cruise Line International Association adopted an enhanced member health policy which sets out health screening measures for cruise passengers. Essentially, CLIA members will:

  • deny boarding to passengers who have travelled from, visited or transited via airports in South Korea, Iran, China, including Hong Kong and Macau, and Italy, within 14 days prior to embarkation;
  • conduct illness screening for passengers who have travelled from, visited or transited via airports in any destinations listed on the US Centre for Disease Control ‘Coronavirus Disease 2019 Information for Travel’ webpage within 14 days before embarkation. Illness screening includes symptom history, checks for fever, cough and difficulty breathing in the 14 days before embarkation, and taking the passenger’s temperature;
  • conduct temperature screening, as soon as they are capable, at initial embarkation for all persons boarding. Any individual with a temperature detected at or above 100.4° F / 38° C is to receive secondary screening to include a medical assessment;
  • deny boarding to all persons who, within 14 days prior to embarkation, have had contact with, or helped care for, anyone suspected or diagnosed as having Covid-19, or who are currently subject to health monitoring for possible exposure to Covid-19;
  • conduct pre-boarding screening necessary to effectuate these prevention measures. Enhanced screening and initial medical support are to be provided, as needed, to any persons exhibiting symptoms of suspected Covid-19.

These measures, which are clearly disruptive, but evidence-based and supported by the WHO research, are designed to prevent the virus from being carried on board cruise vessels in order to enable them to continue to operate. It is ventured that they have become the standard by which all cruise operators will be judged in relation to future cruises.

Does Covid-19 justify the cancellation of holidays, flights and cruises?

The short answer is that it depends on the destination. Where the FCO advises against travel to a region (presently, as set out above, China, Italy and parts of South Korea), both travellers and holiday providers will be justified in cancelling holiday arrangements. Where, however, the FCO considers it unnecessary to advise against non-essential travel, the holiday can take place, and if a traveller cancels he or she will not be entitled to compensation from the provider. In that situation, if the traveller has travel insurance it may respond. The Association of British Insurers has advised that anyone travelling against FCO advice risks invalidating any otherwise applicable travel insurance; conversely, depending on the policy wording, the insurer may well cover the costs of cancellation, or, in the traveller’s nightmare scenario, the costs of repatriation from an affected area. Medical insurance will also respond in this situation, unless the insured has travelled against FCO advice.

Where a package holiday is cancelled on the advice of the FCO, the consumer is entitled to a full refund from the provider, but no additional compensation, because the reason for the cancellation falls outside the control of the provider; alternatively, the traveller may choose to accept an alternative holiday of equivalent value, but this is a matter for him or her.

Where a consumer chooses to cancel a package holiday to a destination not covered by FCO advice against travel, the usual cancellation fees contained in the provider’s standard terms and conditions will apply. Members of the Association of British Travel Agents impose and accept similar cancellation obligations, which are deemed to be reasonable.

Otherwise, where the FCO does not advise against it, holidays can and should go ahead; but the situation is dynamic, and it would be prudent to monitor both the FCO advice and advice from local suppliers and healthcare providers.

It should be noted that the FCO guidance relates only to imminent travel. As a result, travel arrangements due to take place in some weeks’ time are not affected. So if, for example, a traveller is due to take a package holiday in Italy in August 2020, he or she can cancel on the basis of current FCO Guidance, but will not receive either a refund or compensation, because it is still possible that the holiday might go ahead, because the crisis may have passed by the time the holiday is due to start.

By their very nature, cruise holidays fall into a slightly different category. A cruise operator will be justified in refusing permission for a passenger to board if it suspects that he or she has acquired the virus, and the measures set out by the CLIA appear to be justified and proportionate. Whether or not a passenger will be entitled to cancel a cruise holiday will depend on the terms of the holiday contract, but whether cruises operate or not, inevitably all cruises will be affected by the outbreak. Many port authorities are requiring all crew to be certified free from the virus, are preventing crew from leaving vessels, and vessels which have visited ports in affected regions are either being quarantined or refused entry to ports in other regions. This has an obvious effect on the ability of cruise operators to offer holidays as advertised. Usually an illness would not constitute force majeure so as to vitiate a contract; but the circumstances around the spread of Covid-19 are so unusual that it does seem likely that cruise operators could justify delaying or cancelling cruises to affected regions, both as defined by the FCO and more generally. The reason for this unusual degree of latitude is that, as we have seen with one or two cruises already, the consequences of a cruise passenger contracting and spreading Covid-19 are disproportionately grave.

Many people are concerned about air travel. Again, if the FCO advises against travel to a particular region, flights may be cancelled, and the cost refunded; but no compensation is payable. If an airline cancels any other flights, its standard terms and conditions will apply, and the traveller will be entitled to a refund or rebooking. Otherwise, where a traveller cancels a flight as a result of fears over flying during the outbreak, the relevant cancellation policy will apply and in all probability no refund will be offered.

What additional assistance should be offered to travellers?

In the first instance, as always with an outbreak of any illness, provision of information is key. Although the World Health Organisation and FCO guidance is readily available, holiday providers should be disseminating this information. ABTA is a useful source of accurate up-to-date information for both providers and consumers, and its guidance should be followed.

In the case of package holidays, Regulation 15(8) of the Package Travel and Linked Travel Arrangements Regulations 2018 states that where a tour operator is unable to perform a significant proportion of the agreed services of a holiday contract (for example, where the hotel cannot be used due to quarantine), it must provide comparable arrangements at no extra cost or reduce the price of the holiday, but the holidaymaker can reject these proposals if he or she feels that they ae inadequate. If the tour operator fails to remedy the issue within a ‘reasonable period’ the customer is entitled to make a claim for compensation. The task for tour operators and other providers is a daunting one; the FCO guidance changes weekly, sometimes daily, and the situation on the ground is equally fast moving. At present, for example, the FCO advises against travelling to one particular hotel in Tenerife; tour operators will be planning to accommodate travellers who have booked holidays at that hotel elsewhere. This situation could be replicated all over Europe and indeed the world in the months to come.

Staff should now have received training in what is known about how the virus spreads and how best to deal with an outbreak; they should be very visible at destination points and in resort, and should be able to reassure holidaymakers that the risk of disruption is low.

If an outbreak does occur in any particular destination or cruise, the relevant supplier should be implementing quarantine protocols immediately. Holidaymakers are notoriously unwilling to cooperate with these procedures and the negative publicity can be significant. However, sensitive handling by trained staff has been proven to reduce these issues; where a provider is seen to be proactively managing a situation to minimise disruption, travellers will generally comply.

To the authors’ knowledge, there have been no claims arising from Covid-19 at this stage. It is possible that claims could arise in a package holiday context, if customers allege that they contracted Covid-19 at an infected hotel. Such a claim would succeed if it could be proven that the tour operator had failed to provide the holiday services with reasonable care and skill. This could be because the tour operator was (or should have been) aware of an outbreak in a hotel but failed to quarantine it or divert customers to alternative hotels. In reality these claims will be hard to prove because the customer could have contracted the virus anywhere, and arguably the presence of the virus amounts to ‘extraordinary circumstances’ in any event. However, as time goes on and more is known about the transmission of the virus, so too the obligations on travel providers increase in line with their increasing constructive knowledge. It is vital that the industry moves ahead of the curve throughout this challenging period.

Keep calm and carry on!

Covid-19 is an epidemic of significant proportions; but the industry has become more adept at handling these situations since the SARS epidemic; since that time Middle East Respiratory Syndrome  and the Zika virus have joined norovirus on the front pages of the newspapers, but the protocols for those viruses, and in particular norovirus, can readily be adapted to deal with this new threat.

The upside of having dealt with those challenges is that the very extensive experience of the travel industry and of their legal advisors will now come to the fore.

About the authors

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade.

Matthew Ford has led BLM’s travel team, which consists of over 30 lawyers across 6 offices, since 2006.

BLM advises numerous leading tour operators, insurers and brokers on various travel issues, including claims, regulatory and risk management solutions.

This article has been published in Personal Injury Law Journal, April 2020.

Written by or involving: Sarah Prager

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