It is undeniable that the current COVID-19 pandemic is having an unprecedented and profound impact on personal injury litigation, but in the midst of the procedural upheaval, it is also important to consider any impact the pandemic may be having on the legal principles that form the foundations of employer's liability claims.

Principles of medical causation

Particular focus is needed on the principles underpinning medical causation in such claims (not including claims in respect of COVID-19 itself) and any effect on losses arising out of the deaths of COVID-19 patients who may have been pursuing personal injury claims in respect of another condition.

There are 3 general rules in relation to medical causation:

  1. If medical science allows, a claimant will be successful if they can prove that they would not have sustained injury but for a tortious/wrongful act;
  2. If medical science cannot determine causation on a but for basis, a claimant will be successful if they can prove that a tortious act materially contributed to their injury (this test is relevant to injuries which have more than one cause and cumulative diseases that can be classed as divisible);
  3. If indivisible disease cases, a claimant that can prove that a tortfeasor materially increased the risk of the claimant developing a disease (the so-called "Fairchild exception" relevant to mesothelioma and lung cancer cases).

Consideration of the impact the pandemic may have on causation principles is now particularly apposite given the causation "test" with the lowest threshold pertains to lung conditions.

The impact of COVID-19

It is probable that the issue of medical causation in respect of the majority of injuries and diseases already sustained will not be affected by the current situation (given medical causation is a concept that looks backwards). However, the impact of the pandemic will certainly be relevant in determining whether any losses arising out of the deaths of claimants who die after contracting COVID-19 will be recoverable. Would the COVID-19 pandemic be considered an event that "breaks the chain of causation" in terms of death?

Much will be depend on a) the precise cause(s) of death and b) the condition for which the claimant was claiming

Dealing with the first point, on 6 April 2020, The Lancet medical journal published an article addressing the various "pathways to death" in COVID-19 patients. Respiratory failure was of course the main cause of death observed, but patients were also recorded as dying as a result of shock, multiple organ failure and secondary bacterial infections.

The article also highlighted the "ethical issues" playing a role in the pandemic fatality rates, noting instances of the elderly, infirm, and those with "do not resuscitate" orders being more at risk of not receiving treatment when resources are over capacity. In such instances, determining whether death was as a result of COVID-19 or because treatment had to be rationed would be difficult. Would a lack of available treatment due to overstretched resources, or, for example, a decision not to ventilate a mesothelioma patient due to the terminal nature of their condition in order to provide a patient who was not terminally ill with treatment, be sufficient to break the chain of causation?

Shielding of vulnerable people

We must also consider the Government guidance on shielding people who are "clinically extremely vulnerable". The UK Government issued some 1.5 million letters to those considered to be in this category, including people with lung cancer undergoing radiotherapy and those receiving immunotherapy (many of whom will be mesothelioma sufferers), as well as those suffering from other cancers, rare diseases of metabolism and transplant recipients. Would a claimant advised by the Government to shield but who ignores the advice and subsequently contracts COVID-19 and dies be considered to have contributed to their death?

Claims involving lung disease

It is important to note that in employer's liability claims involving lung diseases, it is already common to encounter claimants whose primary cause of death was not the lung disease itself but rather a condition which medical experts consider arose against the backdrop of lung disease (for example, pneumonia, frailty, or a stroke caused by chemotherapy). In these cases, the claims arising out of death succeed because the underlying condition which was being claimed for is found to have materially contributed to death. The position will therefore be no different for claimants who may die after contracting COVID-19, but whose deaths are found in part to have been caused by the conditions for which they were claiming.

The Privy Council gave helpful guidance on this particular causation issue in the case of Williams v The Bermuda Hospitals Board [2016]. Where an injury is not divisible (death itself is of course indivisible), the issue to be determined is whether a tortious act is a partial cause of an entire injury, as opposed to a complete cause of only part of an injury. If a claimant can establish that a "COVID-19 death" arose partially as a result of the injury or disease arising out of a defendant's negligent act, they will succeed in establishing liability for the death.

Conclusion

Given the nature of the virus, it is inevitable that those claimants affected by a lung disease will be more likely to establish causation in respect of death on this basis. In claims involving other injuries or diseases not related to the lungs, particularly those that are not life limiting, and those claimants who are not considered to be "clinically extremely vulnerable", the other considerations detailed above may be relevant.

Whether a later event such as COVID-19 itself, any failure to provide treatment, or a claimant's failure to follow Government guidance made a material contribution to death, or in fact was the sole cause of death will turn on the nature of each underlying injury/disease, and the facts of each particular case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.