COVID-19 compensation claims will face significant hurdles in the civil courts

24 Jan 2022

Writing for today's The Scotsman, Lorna Ferguson discusses the two public inquiries launched to investigate approaches to COVID-19 in both Scotland and the rest of the UK and what types of civil claims and criminal prosecutions may arise. Lorna also goes into more detail to highlight the potential hurdles that those bringing any claims may have to jump over.

She says, "What could have been done better in response to the pandemic? Has any aspect of the response broken Scots criminal law? Answers may emerge from the work of two public inquiries. Lady Poole QC is to chair a Scottish COVID-19 inquiry. The inquiry is to “identify lessons and implications for the future, and provide recommendations”. There is likely to be cooperation between the Scottish and UK inquiries so their work does not overlap unnecessarily. 

"Answers to the question on compensation may come from the Scottish civil courts if claimants pursue relevant claims to evidential trial. The standard of proof in civil cases is “the balance of probabilities”, lower than for criminal cases. However, claimants in litigated COVID-19 civil claims based on alleged fault or negligence would face the additional hurdles of having to prove breach of a duty to take reasonable care and also a legally causative link between that breach and the loss or injury suffered."

Lorna concludes: "It remains to be seen what test a Scottish civil court would apply on causation in the context of a COVID-19 claim but with coronavirus particles being so small that more than 1000 could fit across the width of a human hair, even the fact of exposure to such particles may be difficult to prove, let alone that any such exposure was negligent and was legally causative of loss or injury."

To read Lorna's full article and be redirected to The Scotsman website, please click here.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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