PPE Provision During the COVID-19 Pandemic: Potential Claims Against Employers, by James Plant

If one thing illustrates how the Personal Injury market is coping with moving to remote working during lockdown it is the fact that the first claims in respect of Personal Injury / death arising out of the COVID-19 pandemic are already being intimated; Claimant firms / Claims Management Companies are already advertising for new clients and Insurers / Defendant lawyers are already seeing them land (virtually) on their desks.

A number of Personal Injury claims are likely (directly or indirectly) to arise out of the pandemic including clinical negligence claims, claims against care providers / food and beverage / other retailers / transport companies for infection on their premises, claims arising out of vicarious liability for employees’ actions, accidents to employees working from home (there is an ongoing duty to risk assess work including employees’ home workstations), allegedly inadequate supervision / training and work related stress claims (for example allegedly precipitated by colleagues’ absences or mismanagement) to name the first few that spring to my mind.

Given that my Employer’s Liability practice is approximately equally split between Defendant and Claimant work I felt that I would be well placed to write a brief article on one of the most contentious claims – where PPE is/was allegedly insufficient.  Focusing primarily on claims involving Negligence / Breach of Statutory Duty first given their universal application:

Duties

Regulation 4 of the Personal Protective Equipment at Work Regulations 1992 sets out the primary duty on employers plainly:

“(1) Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

(2) Every self-employed person shall ensure that he is provided with suitable personal protective equipment where he may be exposed to a risk to his health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

(3) Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless—

(a)it is appropriate for the risk or risks involved and the conditions at the place where exposure to the risk may occur;

(b)it takes account of ergonomic requirements and the state of health of the person or persons who may wear it;

(c)it is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed;

(d)so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

(e)it complies with any enactment (whether in an Act or instrument) which implements in Great Britain any provision on design or manufacture with respect to health or safety in any relevant Community directive listed in Schedule 1 which is applicable to that item of personal protective equipment.”

The PPE Regulations also set out further duties to risk assess, inform / train and maintain / replace PPE which are each likely to be relevant in these claims.

The currently accepted position is that following the enactment of s69 of the Enterprise and Regulatory Reform Act 2013 this Regulation no longer confers a direct right of action.  The employer’s actions (or inaction) is subjected to the test of negligence i.e. did the employer do what was reasonable to protect its employee against reasonably foreseeable risks?

It is worth noting that where employees are treating or caring for people infected with COVID-19 (i.e. the work has a direct connection with the virus) then the more stringent requirements of the Control of Substances Hazardous to Health Regulations 2002 (see the ACOP to COSHH from paragraph 16 et seq) will apply.

Breach

Breach of the employer’s duty is, of course, going to be fact specific. 

The duty on a hospital in respect of front-line workers caring for confirmed sufferers of COVID-19 (see above) will of course be materially different from supermarkets in respect of checkout workers or farmers in respect of their seasonal workers.

It must be remembered that first of all that PPE should be used as a “last resort” (see HSE Guidance Note INDG174.rev2 – https://www.hse.gov.uk/pubns/indg174.pdf).  Employers requiring employees to carry out non-essential work with otherwise suitable PPE may find themselves in breach should those employees contract COVID-19.

There is guidance available for health and social care workers from Public Health England here: https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control.  Further the HSE website (as ever) is a good source for demonstrating what ought (or ought not) to be done (https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm).  Both are worth checking and checking for updates.  I have frequently referred to contemporaneous HSE (and other) Guidance in pleadings and at trials to demonstrate the required state of knowledge and extent of duties stemming from the same.

There are likely to be cases where the Defendant will want to argue that its risk assessment was reasonable but it could not obtain the necessary PPE due to supply issues i.e. it was not reasonably practicable to provide suitable PPE.  There are therefore likely in some cases to be factual issues to resolve about planning, procurement and availability of alternative supplies.  For Defendants identifying and securing appropriate and sufficient evidence will be particularly important.

Further; PPE might have been provided that was non-compliant with the Personal Protective Equipment (Enforcement) Regulations 2018 (i.e. non-compliant with EU Regulation 2016/425) and compliant PPE may (or may not) have been available.  Even the UK Government is not immune from these difficulties (note the difficulties in respect of the NHS PPE flown in by the RAF from Turkey).  This issue presents further potential areas of dispute between parties.

Causation

Perhaps the most contentious issue in PPE claims arising out of COVID-19 infections will be causation.  Defendant solicitors and insurers have been quick to point out that this is a novel virus that is widespread within the community – a prospective Claimant could easily have caught COVID-19 outside of work or through non-negligent exposure.  Thus the thinking among many Defendant lawyers is that any such claim would not necessarily pass the standard ‘but for’ test (see Clough v First Choice Holidays & Flights Ltd [2006] EWCA Civ 15) i.e. the Claimant has not shown that the Claimant would not have contracted the virus absent the Defendant’s breach.

However I suspect given the numbers / value of claims and thus the stakes involved alternative routes will be explored:

Material Contribution

The starting point for Material Contribution is Bonnington Castings v Wardlaw [1956] AC 613.  In this case the claimant developed pneumoconiosis from inhaling silica dust at work.  Some of it was tortious (dust produced by grinders) but most was non-tortious (dust produced by hammers).  The ‘guilty’ dust made a material contribution to the pneumoconiosis and the defendant was therefore wholly liable.

This has evolved as industrial disease work has shaped it – where science is able to apportion the respective contribution the injury is said to be divisible and the Defendant therefore liable for the proportion it is responsible for – for example in Noise Induced Hearing Loss claims.

Presuming (and the science does not appear to be set in stone as yet) that COVID-19 only arises from a single moment of infection (and is not dose-related) Material Contribution arguments will have no relevance.

The Fairchild v Glenhaven Exception

In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 the claimants (or deceased) developed mesothelioma.  Each worked for two or more defendants but and they could not prove which defendant’s breach of duty caused their disease.  The exception, to avoid injustice to Claimants, was that where the breach created a ‘material increase in risk’ causation was made out.

To complete the picture the House of Lords in Barker v Corus (UK) plc [2006] UKHL 20 refined this exception finding that Defendants were only liable in damages for the relative degree of contribution to chance of the disease arising.  This was then overturned (in mesothelioma cases only) by s3 of the Compensation Act 2006.

It was anticipated (accurately as it turned out) by Lord Bingham in Fairchild that the principle would be incrementally developed.  However the application of Fairchild to non-mesothelioma cases appears to have been nipped in the bud (for now at least) by the Supreme Court.  In Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, [2011] 2 All ER 857 Lord Brown stated emphatically “Save only for mesothelioma cases, claimants should henceforth expect little flexibility from the courts in their approach to causation.  Since Fairchild and Barker there has been much academic focus on a supposedly critical distinction between so-called “single agent” and “multiple agent” cases, the suggestion being that the former more readily lend themselves to special rules of causation than the latter. For my part I have difficulty even in recognising the distinction between these categories, at any rate in some cases. But I have greater difficulty still in accepting that the courts should now, whether on this or any other basis, be thinking of creating any further special rules regarding the principles governing compensation for personal injury. The same logic which requires that the claims of these respondents succeed to my mind requires also that the courts should in future be wary indeed before adding yet further anomalies in an area of law which benefits perhaps above all from clarity, consistency and certainty in its application”.

Material Increase (i.e. more than double) of Risk to the Claimant

This applies to cases where a specific agent has caused the injury but the Claimant cannot prove that this was due to negligent as opposed to non-negligent exposure.  It is perhaps best summarised in XYZ and others v Schering Health Care Ltd and 2 others [2002] EWHC 1420 (QB) where Mackay J observed: “If factor X increases the risk of condition Y by more than 2 when compared with factor Z it can then be said, of a group of say 100 with both exposure to factor X and the condition, that as a matter of probability more than 50 would not have suffered Y without being exposed to X. If medical science cannot identify the members of the group who would and who would not have suffered Y, it can nevertheless be said of each member that she was more likely than not to have avoided Y had she not been exposed to X”.

It was also addressed in Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, [2011] 2 All ER 857 (per Lord Phillips at 93): “Where there are competing alternative, rather than cumulative, potential causes of a disease or injury, such as in Hotson, I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury”.

It remains to be seen whether Claimants will be able to muster the evidence to support such an increase in risk but it might end up being a very busy time for Expert Witness Occupational Hygienists, Epidemiologists and Virologists…

Cases of Clear Breach (No Need for the Claimant to Prove a Negative?)

One further possible route for making out causation is where there are instances of a clear breach of duty. 

In Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642 the Claimant suffered a back injury manually handling heavy white goods during a stock take at work.  The Defendant had failed to carry out an adequate risk assessment.  Longmore LJ (giving the lead judgment in a unanimous decision) under the heading “CAUSATION” stated:

“This is not a separate hurdle for the employee, granted that the onus is on the employer to prove that he took appropriate steps to reduce the risk to the lowest level practicable. If the employer does not do that, he will usually be liable without more ado. It is possible to imagine a case when an employer could show that, even if he had taken all practicable steps to reduce the injury (though he had not done so), the injury would still have occurred eg if the injury was caused by a freak accident or some such thing; but the onus of so proving must be on the employer to show that that was the case, not on the employee to prove the negative proposition that, if all possible precautions had been taken, he would not have suffered any injury”. 

As this may have been misconstrued as a somewhat “open goal” for Claimants Tomlinson LJ clarified it in West Sussex CC v Fuller[2015] EWCA Civ 189: “It may be that this passage has been misunderstood. It is not perhaps the easiest passage to follow, perhaps because Longmore LJ has run together the two separate concepts, breach of duty and causation. It is however important to note the context in which he has done so, which is in a case where the very risk inherent in the operation of repeated lifting of heavy or awkward loads has eventuated, viz, back injury, and where the employer had carried out no sufficient risk assessment. So it is one of those plain cases where the claimant demonstrates without more a prima facie causal connection between the inherently risky operation and the injury. Furthermore, it is a case where the employer is in breach of duty in having failed to carry out a sufficient risk assessment, and in order to exonerate himself needs to show that he has nonetheless taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. Those are the circumstances in which Longmore LJ said that causation was not a separate hurdle for the employee. It was not a separate hurdle because the employee had already made out a prima facie case, based on the occurrence of the risk inherent in the manual handling operation he was asked to undertake. Longmore LJ recognised that, even in such a case, and where the employer cannot show that he has taken appropriate steps to reduce the risk to the lowest level reasonably practicable, it is only “usually” that he will be liable without more ado. It is still open to the employer to show that his breach of duty has not in fact been causative of the injury, as where for example the employee suffers a heart attack which can be demonstrated to be wholly unconnected with the manual handling operation. Longmore LJ is simply making the point that once a prima facie connection is established between the risky activity and the injury, it is for the employer to disprove causation, not for the employee to prove that, if all possible precautions had been taken, he would not have suffered injury.”

The Claimant in West Sussex lost her footing carrying post at work and slipped down the stairs.  Here the Defendant had not carried out any risk assessment and adduced no evidence to show that appropriate steps had been taken to reduce the risk of injury carrying out her work to the lowest level reasonably practicable.  However the Defendant as the cause of the accident was the Claimant misjudging her footing and this was causally unconnected with her carrying the post i.e. it was the occasion for her injury but not the cause.

Ghaith and West Sussex were followed in the recent case of Goldscheider v Royal Opera House [2019] EWCA Civ 711 (the acoustic shock orchestra pit claim).  Clearly an acoustic shock injury is conceptually different from back injuries (Ghaith) or a wrist sprain (West Sussex).  In Golschedier there were competing theories as to the cause of the symptoms however (while in Ghaith and West Sussex) the cause was the accident.  It is likely to be hotly contested that the principle ought to cover (or be extended to cover) a claim involving COVID-19 (or any other viral) infection.

Further Issues

While I am conscious I had intended this to be a short article(!) I thought I would briefly touch on a couple of other points arising out of these claims:

Group Litigation

Given the potential evidential burdens it is plausible that the leading edge for such claims will be in the form of Group Litigation.

Defences

Just touching on a couple of potential defences:

1. Cases brought in Negligence / for Breach of Statutory Duty might be met with a defence arising out of s1 of the Compensation Act 2006 which provides as follows:

“Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.”

The successful application of this argument is likely to be highly fact specific.  It has been construed rather narrowly in County Courts since it has been in force in my experience.

• It has long been established that ‘volenti non fit injuria’ is not a defence to a breach of an employer’s statutory duty per Baddeley v Granville (Earl) [1887] 19 QBD 423; Wheeler v New Merton Boardmills Ltd [1933] 2 KB 669.

• A Defendant may wish to argue that the Claimant is responsible for the breach of statutory duty.  This is easier said than done since the Defendant will need to show that the Claimant is solely and wholly to blame per Boyle v Kodak Ltd [1969] 1 WLR 661.

• Contributory negligence.  As ever this is easier for Defendants to plead than prove but it is likely to be particularly relevant in some cases.

Human Rights Act

It is likely that many of the potential claims will be against the Government, Public Bodies or other emanations of the state.  This means that the claim might engage Article 2 of the ECHR i.e. the Right to Life.

It is not likely to be conceptually difficult for courts to apply the principles elucidated by the Supreme Court in Smith v MoD [2013] UKSC 41 (where Snatch Land Rovers were found to be insufficiently armoured to protect soldiers in Afghanistan).  After all the Government / relevant bodies had advanced warning of the global pandemic and the travails of the NHS (and others) in planning, procuring and delivering PPE are being reported in the media on a daily basis.

There are a number of peculiarities to bringing a personal injury / fatal claim under the Human Rights Act 1998 which act as traps for the unwary (not least of which the one-year limitation period) which could easily form a further (again not so brief) article in the future…

Public Policy

The scheme to provide families of NHS and social care workers who have died with COVID-19 with statutory compensation of £60,000 is worth a mention.  It is not outside the realms of possibility that this government provides a statutory scheme for NHS / social care (or other workers even) or their families to obtain compensation for death / injury arising out of COVID-19 infections (also preventing claims being litigated in the normal way) to save costs and ease the burden on the courts. 

After all this is (hopefully) a once in a lifetime global pandemic with devastating effects on the public and private purses.  It is also possible that the government therefore enacts a rare example of retrospective legislation justifying this in light of the special circumstances of this pandemic.

Conclusion

These issues (and those concerning other COVID-19 related claims) are likely to loom large on the PI horizon long after lockdown and the Tiger King become but a distant memory…

This is clearly a developing area of work and the courts are going to have to balance the right of employees as against the responsibilities of employers that find themselves having to work in singular and extremely challenging conditions.

Author

James Plant is a member of Farrar’s Building specialising in Personal Injury (particularly Employer’s Liability), Product Liability and Property Damage.  Living in York and practising in London means that he normally covers the whole country for hearings but he is well used to working remotely and from home.  For more information please contact the Farrar’s Building Clerking Team.

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