COVID-19 as an Industrial Disease – Have the Floodgates Opened for Claims Against Providers?

Topics covered: coroner, COVID-19, Employment law

As many will be aware, a Welsh Senior Coroner recently ruled that the deaths of two nurses were caused by COVID-19 and it was an industrial disease.

Graeme Hughes, the senior coroner, said that “it was more likely than not” that the nurses were “exposed to Covid-19 infection at work, became infected” and that the infection caused their deaths. As a result, their deaths were ruled as industrial disease.

This is quite significant and it is believed to be the first time where COVID-19 contracted in the workplace has been formally recognised as an industrial disease.

This may have given many providers cause for concern over a potential influx of COVID-19 related death civil claims. However, this represents a misunderstanding about the purposes and findings made at inquests.

Inquests are solely intended to determine the cause of death – this is based in fact alone and does not apportion blame.

To this, some may argue what the purpose of Prevention of Future Deaths (PFD) reports are. While coroners do have the discretion to issue a PFD, which serves as a template for the provider involved to improve the systems in place which may have more than minimally contributed to a death and where the coroner deems this necessary in the circumstances, this does not mean that a provider is being blamed for said death.

Additionally, a coroner’s verdict is not evidence of anything more than the legal cause of death as determined by that coroner. Whilst these are influential, they do not bind any subsequent court or tribunal on that issue.

Further, the threshold to meet in an inquest is much lower than for a civil or criminal claim, which will apportion blame. This will be particularly true when it comes to causation.

Providers will need to take this ruling with a grain of salt.

While many unions, and groups such as the Society of Occupational Medicine (SOM), have commended this ruling as a step in the right direction for nursing and care staff to get the financial assistance and protection they require, there is still much legal debate over the impact that this ruling will have on future cases of COVID-19 related deaths and/or health complications.

For any claim to be brought against a provider for a staff death which can be attributed to COVID-19 contracted in the workplace, it will need to demonstrate (a) that guidance at the time was not being adhered to or (b) the guidance at the time was itself negligent. Much of this depends on hindsight, which will be a difficult bar to overcome for those who attempt to capitalise on such claims.

While this ruling does indicate that COVID-19 contracted in the workplace could entitle employees to compensation, it does not mean that the floodgates have been opened for such claims.

There is much that can be learned from the last three years and the struggles that the entire world has faced trying to combat and control COVID-19. With the vaccine roll-out and the wealth of research and knowledge on the disease providers will still need to be vigilant about the risks that COVID-19 presents in the workplace. This means maintaining robust infection prevention and control systems and policies. It does not, however, mean that the fundamental understanding of how to prevent and mitigate the effects of the disease have changed simply because one ruling has classed COVID-19 as an industrial disease.

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