Data analysis: Covid workplace exposure claims cause headache for claimants

Over 93,000 cases of occupational exposure to Covid-19 were reported by employees or self-employed workers between March 2020 and March 2021, according to Health and Safety Executive data.

A third of reports were backed by the employer as suspected cases of occupational exposure. However, it is not yet clear how this will affect claims made on EL policies.

With employers continuing to make reports despite the cessation of lockdown measures, the number of occupational exposure reports made by employers under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations stands at over 43,000.

Employers are only required to make reports if they suspect that it is "more likely than not that the person's work was the source of exposure to Covid-19". General exposure to the public is not considered sufficient evidence of occupational exposure.

Around half of all the Riddor reports received since 5 December 2021 were for workers in the health and social work sector.

While insurers and lawyers are reporting some Covid-related EL claims coming through, currently they are seeing success in defending them.

A Zurich spokesperson confirmed the insurer has seen a small number of Covid-related EL claims, none of which were found in favour of the claimant.

The spokesperson added: "We will continue to review each case individually and are committed to meeting valid claims where a legal liability has been established.”

Clyde & Co partner Chris Murray told Post that the law firm had seen a handful of cases, and that although all would be defended in court, he expected that proof of causation would be a "huge problem for the claimants".

Occupational exposure

There is growing evidence that individuals are beginning to make claims on EL policies for occupational exposure, alleging that their employer disregarded duty of care. 

Daniel Poet, National Co-ordinator for Covid-19 Litigation at Thompsons Solicitors, told Post that "once a significant breach of duty is established, the employee would then need to prove that they probably would not have become infected had their employer not breached their duty of care."

Several recent claims have alleged breaches of The Control of Substances Hazardous to Health Regulations (2002), as well as common law negligence, as evidence that their employer disregarded duty of care.

However, there are hurdles for claimants looking to go down either avenue.

Derek Adamson, a member of the Forum of Insurance Lawyers' disease sector focus team and a partner at DWF, said that in his view, where it comes to COSHH issues, "there is no claim because the risk has to be work-related. Are we to compensate every person who catches the common cold or influenza from a colleague at work? That is if they could even prove the source of the infection, which is a problem also for Covid claimants."

As for common law negligence claims, Adamson pointed out Covid-19's status as a "novel disease".

This means the scope of an employer's duty of care would be governed by "developing knowledge" and not being too slow to respond as understanding of the risk grows. 

In such cases, Adamson suggested that the claimant would require "robust epidemiological evidence" that the risk in the workplace was more than double the risk posed at home or in the community.

Further, he highlighted that given current medical technology standards, such evidence may well be impossible to procure.

Adamson commented: "The epidemiological evidence is not sufficiently developed and, with vast numbers of infections in the community at large, it is difficult to see how such evidence will emerge."

Woolcock case

The recent inquest into the death of NHS front-line worker Mark Woolcock demonstrated that negligence in cases of occupational exposure can prove difficult to ascertain.

Woolcock was an ambulance care worker at Newham University Hospital, Plaistow, who died in April 2020 after contracting Covid-19 through his work.

At an inquest, Woolcock's daughter Tania Woolcock set out that he "did not feel safe at work" and had not been supplied with personal protective equipment in the early days of the pandemic, according to reports. 

However, an assistant coroner from London East told the inquest that "there was a suitable system in place to protect Mark" and the inquest found no wrongdoing on the part of the trust.

Thompsons Solicitors is currently representing a number of Covid-19 occupational exposure claims from employees in public-facing roles, such as health workers, prison officers and government workers.

Poet emphasised to Post that "the burden of proof rests with the claimant to prove that their employer has breached their duty of care and that, on the balance of probabilities, their infection was caused by that breach."

Highlighting the heavy burden of proof on claimants, Poet said that “once a significant breach of duty is established, the employee would then need to prove that they probably would not have become infected had their employer not breached their duty of care.

"This is likely to prove a key battleground, given the state of medical knowledge as to the mechanism of transmission."

Poet also noted that, in cases of occupational exposure, “litigation is still in its relative infancy, and it is likely to be some time before any of our cases reach trial.”