Could COVID-19 lead to corporate manslaughter claims and how can public sector risk managers act now to protect their organisation?
The Corporate Manslaughter and Corporate Homicide Act 20071 (CMCHA) was introduced in 2007 in response to a number of high-profile disasters in the previous decades2. As a result of COVID-19, is it possible that we could see a number of companies and organisations found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of their duty of care?
The high bar of proof in these cases has meant that up to 2017, 10 years after CMCHA’s introduction, only 25 prosecutions had been brought3 of which the majority resulted in a guilty plea and a significant fine. We believe this high bar is why most of the successful prosecutions under the Act have focused on smaller sized companies where it may have been easier to establish which senior manager or managers had direct responsibility for the corporate failure that led to death.
Offences under the health and safety legislation are evidentially much easier to prove than corporate manslaughter, although the financial and reputational consequences for convicted organisations can be just as significant.
So, will COVID-19 bring a change to this picture and could we see claims as a result of failures to protect staff and those in the care of an organisation from catching and dying from the virus? The most likely source of claims may be the lack of availability of PPE or excessive exposure to COVID-19 by front-line workers.
To date, anecdotal evidence suggests that in inquest outcomes, where COVID-19 has played a part, coroners have been reluctant to apportion blame, although guidance from the Ministry of Justice does allow coroners to investigate COVID-19 deaths if they have reason to believe workplace negligence has played a part4.
The challenge in pursuing CMCHA offences under health and safety legislation or civil claims for damages will be the difficulty in proving where infection actually took place, that it was avoidable, that the death flowed from the infection and that the institution or company is responsible i.e. establishing causation. Even in care homes where clusters of cases have occurred, it is likely to prove difficult to meet the burden of proof needed to bring a case under the CMCHA.
In addition, CMCHA requires the prosecution to prove that the institution or company has committed a gross breach of duty of care in health and safety or that it acted recklessly in not protecting its staff. In the case of COVID-19 it would be unlikely that such an approach would succeed, given the way that news and knowledge about how the infection spreads and how to mitigate that spread is only becoming known over time.
However, if prosecutions under the CMCHA are unlikely to succeed there may be more scope under health and safety or employers’ liability legislation to bring personal injury claims for COVID-19 injury and death and this is where we could see cases brought against the responsible body. Some lawyers will undoubtedly be keen to jump on to these possible claims and rush them to the courts and it is likely that care workers could be a group where some test cases could emerge, given the cluster of cases that occurred in some care homes.
At this stage, there remains significant uncertainty around the long-term impact or injury that those that recover from the initial impact of COVID-19 may experience5. Therefore, the likely magnitude and nature of these possible claims remains difficult to estimate.
RMP continues to monitor the situation of our own clients carefully and of the very few claims which have been made or intimated, the early signs are that these notifications involve in the main blue light services, where officers or the public have been potentially exposed to COVID-19 in blood or saliva.
However, all of these cases hinge around the importance of where exposure happened, could the problem have been foreseen and was it likely that harm was foreseeable. The situation is complicated by the fast-moving nature of clinical and government advice particularly around the wearing of masks6 and the efficacy of certain drugs or treatments7.
Public opinion will also be important in deciding how far litigation might go and there is likely to be a public inquiry in 20218 which may further muddy the waters.
As we enter the autumn, however, a lack of foreseeability will be hard to argue as it is increasingly clear what the risks of COVID-19 infection are and what steps can be taken to mitigate them. This means risk managers need to think now about potential upcoming risks that the pandemic is creating and particularly about the possibility of problems arising around increasing levels of working from home. This will be the subject of our next blog.
Published date: 17th September 2020
This note is not intended to give legal or financial advice, and, accordingly, it should not be relied upon for such. It should not be regarded as a comprehensive statement of the law and or market practice in this area. In preparing this note we have relied on information sourced from third parties and we make no claims as to the completeness or accuracy of the information contained herein. It reflects our understanding as at 10th September 2020, but you will recognise that matters concerning COVID-19 are fast changing across the world. You should not act upon information in this bulletin nor determine not to act, without first seeking specific legal and/or specialist advice. Our advice to our clients is as an insurance broker and is provided subject to specific terms and conditions, the terms of which take precedence over any representations in this document. No third party to whom this is passed can rely on it. We and our officers, employees or agents shall not be responsible for any loss whatsoever arising from the recipient’s reliance upon any information we provide herein and exclude liability for the content to fullest extent permitted by law. Should you require advice about your specific insurance arrangements or specific claim circumstances, please get in touch with your usual contact at Risk Management Partners.
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 https://www.judiciary.uk/wp-content/uploads/2020/07/Chief-Coroners-Guidance-No-37-AMENDED- 01.07.20.pdf
 https://old.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and- constitutional-affairs-committee/news-parliament-2017/responding-to-covid-19-and-coronavirus-act-2020- evidence-19-21/