Public policy & employer’s liability insurance implications of
Walk down any street in Britain, count the number of windows awash with rainbow pictures and slogans and the strength of the national feeling is obvious. An epidemic of claims against the NHS, whether they are founded in employers’ liability or clinical negligence, would be unpalatable to most right now.
Yet almost daily we hear media reports of NHS employees having insufficient or inadequate PPE to protect them from contracting COVID-19, and in some tragic cases dying of the virus. In normal, pre-pandemic times, this could constitute a breach of the Personal Protective Regulations 1992 or COSHH regulations. So will the NHS and employers of other key frontline workers (bus drivers, care home workers, supermarket checkout assistants to mention a few) and their insurers face a whole raft of claims when the dust settles after the Coronavirus storm?
A global pandemic – the New York Bill
In New York State, the epicentre of the US battle against COVID-19, they have already begun to address these issues by preparing to enact a statute (the Emergency Disaster Treatment Protection Act) which grants sweeping civil and criminal liability protection to hospitals and medics treating patients with the virus from malpractice lawsuits or, as we know them, clinical negligence claims. The New York Bill doesn't just protect physicians and nurses, it also covers nursing homes and a number of other health-care workers and there have been calls to expand it further to ‘essential businesses’. The immunity will expire whenever the state of emergency Mr. Cuomo declared in March is lifted.
How might that apply to the UK?
We know that the UK government can move swiftly to translate their intentions to statute, as we saw with the recent Coronavirus Act 2020. Indeed, historically we have seen the government legislate in an attempt to contain compensation claims, for example the Compensation Act 2006, and the Enterprise Regulatory and Reform Act 2013 (ERRA), with the latter meaning that any breach of statutory duty by an employer, with very limited exceptions, is now only actionable in negligence.
It is not inconceivable that, in the absence of any legislative intervention, the courts themselves will seek to use the common law to give effect to prevailing public opinion, in finding either for or against claimants. After all, we saw the House of Lords impose vicarious liability on the Home Office in the well-known prisoner escape case of Dorset Yacht Club v Home Office  UKHL 2. Lord Denning in the Court of Appeal cited public policy grounds in confirming that the Home Office did not have complete immunity.
More recently we have seen the courts find against claimants citing floodgates arguments; in Gray v Thames Trains  UKHL 33 the rule of ex turpi causa was upheld (a claimant could not profit from his own wrongdoing), and in White v Chief Constable of South Yorkshire  3 WLR 1509, an employer’s liability case, where Hillsborough police officers were denied damages for psychiatric injury suffered as a result of tending victims of the incident, which was caused, at least in part, by their employer's negligence. It is not difficult to see an analogy here and how the courts may respond.
The common law requirement of foreseeability is another tool which the courts have at their disposable, and since the advent of ERRA 2013 (and the ensuing shift back to common law), the question of whether this pandemic was foreseeable will be all the more important in employers’ liability claims.
Employer’s liability claims made against the NHS are covered by the NHS risk pooling scheme. This is a scheme that is funded by its members (i.e. the trusts) and so any claims will have overall implications on the funds otherwise available to the individual trusts.
For other employer’s liability claims, although the wording of every policy will need to be analysed, most current UK policies would cover the legal liability of an employer for illness or injury arising from an employer’s negligence. The Employers' Liability (Compulsory Insurance) Act 1969 sets out the compulsory requirement for every employer to maintain liability insurance for the benefit of its employees with very limited exceptions. There are no exclusions for pandemics.
Furthermore the Employers Liability (Compulsory Insurance) Regulations 1998 prohibits any restriction on cover because an employer has failed to comply with any enactment designed to protect employees, or failed to take reasonable care to protect employees against the risk of bodily injury or disease. Given this, insurers are likely to have an obligation to pay a claim.
However there are some circumstances where an insurer could recover against its insured (the employer direct) if certain conditions are not met. That in itself would present further problems given the impact of the pandemic on the economy and loss of businesses.
It therefore follows that in respect of policy coverage and indemnity, a failure by an employer, for example, to adhere to government guidance on social distancing and provision of appropriate PPE is likely to be irrelevant and claims will be covered. Whether they succeed or not will depend upon individual facts, and ultimately government policy on the issue. Only time will tell.
For further information please contact Donna Rawding.
Donna leads BLM’s Policy Indemnity Unit and is supported by Marie Atkinson.