Workplace COVID, Inquest ruling and implications for civil claims

Whilst UK citizens have largely sought to move forward and live with Covid, by putting the control measures that were in place during the pandemic period between 2020 to 2021 behind them, an Inquest finding has brought home the reality of the efforts made by front line employees during this unprecedented episode.

As reported in The Law Society Gazette1 (20/1/23), a Senior Coroner at a recent Inquest in South Wales has concluded that two nurses who were exposed to and who went on to contract the Covid-19 virus, died as a result of "industrial disease." The Senior Coroner explored the national guidance in force at the time, PPE and relevant contemporaneous risk assessments for employees, and found that;

"on the balance of probabilities, exposure more likely happened at work and infection happened as a result of that exposure."

The Coronial process

The Coroner's statutory function is to answer four main questions:

Who was the deceased? When, Where and How did they come by their death?

There are also particulars recorded for registering the death.

A Coroner does not decide matters of criminal or civil liability. There is no question of attributing blame. The inquest process is simply a means to establish facts about the death of the deceased.

Case in point

The relevant Health Trust had sought to persuade the Coroner to enter a short form conclusion, namely that the nurses' deaths were from "natural causes".

The families of the nurses however submitted that a conclusion of "Industrial disease" was appropriate, and the Senior Coroner accepted the families' submissions.

Industrial Disease conclusion

In 'Jervis on Coroners [14th Edition]' and in the "official list" of conclusions, it is set out that "industrial disease" can apply to any disease caused by employment. The Coroner need only be satisfied (the evidential burden) that the death resulted from a disease caused by work.

Jervis further states that "Even if there are "occupational and non-occupational" causes available, the Coroner (or jury) must be satisfied that it was one of the occupational causes, and the rules of causation in the tort of negligence are irrelevant".

Forbes comment

Might this Inquest conclusion start to alter the landscape for civil claims involving COVID related workplace deaths? Commentators have argued that for the floodgates to open, issues of causation, remoteness and foreseeability, all high hurdles, must first be overcome. There will need to be some kind of failure and proven negligence (duty of care, breach of that duty and causation) for any civil claim to succeed, such as the provision of no or inadequate PPE or not following Government guidance at the relevant time.

Whilst the risk of a civil claim materialising is low, where employers become aware of the loss of a staff member due to COVID , and where there is to be an Inquest, employers ought to be live to the fact that they ought to seek Properly Interested Party status at that Inquest, and seek appropriate legal representation, so as to ensure that the Coroner can conduct a full and fair investigation.

If you need any further information on inquest proceedings then contact Ridwaan Omar and Lucy Harris.

1 Law Society Gazette (pagesuite.com)