Novel law or novel context? Duties of care and Covid-19

Alexandra Tsalidis

In a locked down world, Midas’ touch will not turn you into gold but may very well give you a deadly virus – and potentially a claim in the Law of Torts. Today, merely going about our normal ways can create a risk of transmission, and Tort questions are sure to arise. How far will the new context test established legal principles?

Following an era of HIV infection cases culminating with R v Dica [2004][1] and R v Golding [2014][2],it is now set law that the deliberate or reckless transmission of disease(without consent to the risk of transmission) constitutes the criminal offence of grievous bodily harm under section 20 of the Offences Against the Person Act1861. Congruently, in the law of torts, it may safely be assumed that intentional transmission of HIV would represent a trespass to the person, specifically a battery, as evidenced by the American case of Doe v Johnson [1993][3].However, UK courts have yet to confront the question of negligent transmission of disease, especially outside the facts of sexual transmission. The usual conditions which must be satisfied to establish a claim in negligence now pose a set of challenges generated by the novelty of the context. It is submitted that a duty of care should arise based on the degree of awareness of infection.Furthermore, an employer’s duty of care may make them liable for subsequent psychological harm suffered by an employee.

Establishing a simple duty of care

Generally, for cases of physical harm a duty of care arises when it is reasonably foreseeable that certain behaviour could result in physical injury to someone like the claimant.This aspect of reasonable foreseeability is an objective test but depends on determining what a reasonable person in the defendant’s position would have done, which can be more difficult to construe in the Coronavirus world. US courts have well entrenched precedent for tortious STD transmission, so it maybe useful to draw upon their reasoning. In B.N. v K.K. [1988] it was said that when one “knows he or she has a highly infectious disease” they can“readily foresee the danger that the disease may be communicated with others with whom the infected person comes into contact [4]. The judgement in Doe also grappled with “knowledge”, setting out various levels of knowledge the defendant may have regarding the probability of beingHIV+. According to that court, the imposition of a duty to take steps to limit transmission of the disease (that is, by at least disclosing his HIV status)required something more than just knowing he engaged in “high risk” behaviour.There appeared to be a need for at least one factor of certainty: the judgement lists knowing he is HIV+, knowing he is experiencing HIV+symptoms, or knowing a previous partner is HIV+ as sufficient grounds for establishing reasonable foreseeability [5].With Coronavirus infections, being a carrier is usually accompanied with a certain degree of uncertainty, especially if you haven’t been tested. According to the aforementioned framework, a person who tests positive would automatically satisfy the certainty factor, whilst all other potential claimants would have to break the threshold of merely knowing that they engaged in “high risk” behaviour. For example, a person who came into contact with a known carrier would beat the threshold, whilst a person who merely went on an excessive amount of mask-less walks, even to busy areas, would not.

Arthur Caplan et al argue analogically that if a person has a duty to take reasonable steps to prevent the spread of a disease they suffer from, parents who refuse to vaccinate their children in states that allow a philosophical exemption may still be liable because that freedom to disobey state vaccination policies does not protect the parent“against the consequences of that choice for others”[6]. According to Caplan, therefore, even though the government authorises refusal to take precautionary steps to mitigate creation of danger, civil liability can still arise. Applying this analysis to the coronavirus context, the argument that no duty should be imposed on the common civilian because the government’s measures to alleviate the spread of the disease are merely guidelines and not criminally enforced regulations rings hollow. Furthermore, liability would be limited by the requirement that the behaviour was actually negligent, not just careless.Considering the omnipresent nature of the issue, guidelines, and advice, the already low threshold for the expectation of reasonable behaviour should not be swayed by concern for confusion and mistake.

A second aversion to discussions of Coronavirus torts centres around the fear that mundane civilian activities would land a person in court. Yet, the reality of the matter is that intentional and reckless transmission of the virus will inevitably be criminalised under Dica and Golding law. As a result, the terrain which Tort law would independently cover is restricted to specific cases of negligent transmission. Yet this cannot be considered a dramatic intrusion of the law because once we’ve accepted that transmission of a disease is equal to causing physical injury, the idea that liability should arise because the transmission was negligent is not foreign.

Employer’s duty of care, breach and psychological injury in the workplace

When an employer has a statutory and common law duty to take reasonable care to protect their employees from foreseeable harm in the course of their employment, the conditions which would establish a breach of this duty become more nebulous. It is more useful to make the counterfactual inquiry of what is expected of an employer(in essence, returning to the duty of care). According to Baker v QuantumClothing Group Ltd & Ors [2011][7], the question remains an objective one, for which government guidelines provide some direction; for example, employers are expected to allow work from home schemes where possible, and to fund Statutory Sick Pay if and when employees need to self-isolate. What if an employer fails to provide protective equipment to his retail workers? In the absence of official standards, an employer can rely on common practice in the industry to comply with their duty of care (Thompson v Smith Shiprepairers (North Shields) Ltd [1984][8]).

An important facet of the discussion surrounding reopening industries post-lockdown is the mental toll on employees that working in a now dangerous environment would create. Workers already returning to their jobs report that they “fear for their life”[9]because of the newly imposed risks associated with their jobs. In terms of precedent for stress at work, Sutherland v Hatton [2002][10]sets the central question for employers is whether “this kind of harm to this particular employee” is a “reasonably foreseeable” result of having to do the work assigned to him, that is, a reasonably foreseeable result of the stress suffered. What constitutes stress and is it analogous to fear or anxiousness someone might suffer whilst apprehending contamination?Stress is not clearly defined in Sutherland, but in the judgement stress is associated with “pressure” and being “overworked”. As such, the case appears to target a very specific state of mind which can probably not be stretched to“fear” or anxiousness”.

However, Rothwell v Chemical & Insulating CoLtd [2007][11]addresses cases involving fear of physical harm and could provide an alternative route for a claim. The court affirmed mere anxiety arising from fear of the risk of future harm in the workplace was not an independently actionable injury but may be compensable if it is attached to actionable damage. Yet with Coronavirus it appears that reinfection is unlikely if not impossible. This means that if the cashier contracts the virus, they cannot argue they are anxious about the future risk of re-contracting the virus from customers, and so would not be able to claim in this way.

Lord Rodger then went on to tackle claims for free-standing psychological injury (where the harm is a diagnosable mental illness). He distinguishes between plaintiffs that develop this psychiatric injury because of an apprehension of future physical injury (fearing the risk of physical injury) and plaintiffs that develop it as a result of almost being physically injured due to the defendant’s negligence (Page v Smith [1995]).Lord Rodger implied that for free-standing psychological injury claims, the duty of care is narrower. A plaintiff must show that the employer owed someone like them a duty to protect them from a reasonably foreseeable psychological injury developed because of the risk of future physical harm, instead of simply a duty to protect someone like the claimant from physical injury (Plaintiffs v Medical Research Council [1997]). Therefore, the Coronavirus plaintiff would not be able to rely on Page, because their fear could not be described as “near-miss harm” – that would require being aware of the specific near-injury, whereas with the virus there is merely a constant fear of potentially being infected, almost always without the person realising the specific moment infection could have occurred. The hypothetical cashier would thus have to demonstrate it was reasonably foreseeable that they would develop a mental illness from constantly worrying that they might contract the virus because their employer has negligently created a risk of infection.  

In conclusion, an onslaught of coronavirus cases may test the boundaries of established tort principles.The creation of a duty of care to prevent transmission of one’s disease depends on the level of established knowledge, requiring a degree of certainty.Moreover, whilst an employer’s duty of care to protect their employees appears broad, when the harm is psychological injury, it is severely narrowed by constraints laid out in Rothwell. Overall, the imposition of a duty of care both within and outside the workplace would not be new law and should not be feared as an overextension of it, given the abundant limitations ingrained in negligence law which would filter out cases of pardonable civilian error or delayed employer reaction

References

[1] R v Dica [2004] EWCA Crim 1103

[2] Rv Golding [2014] EWCA Crim 889

[3]817 F. Supp. 1382 (W.D. Mich. 1993)

[4] 312 Md. 135 (Md. 1988) 538 A.2d 1175 at 142

[5] at page 1393

[6] Caplan, Arthur L., et al. “Free toChoose but Liable for the Consequences: Should Non-Vaccinators Be Penalized forthe Harm They Do?” The Journal of Law, Medicine & Ethics, vol. 40,no. 3, 2012, pp. 606–611., doi:10.1111/j.1748-720x.2012.00693.x.

[7] Baker v Quantum Clothing Group Ltd &Ors [2011] UKSC 17

[8] Thompson v Smith Shiprepairers (NorthShields) Ltd [1984] QB 405

[9] https://www.hulldailymail.co.uk/news/hull-east-yorkshire-news/coronavirus-workers-wren-kitchens-factory-3979270

[10] Hatton vSutherland [2002] EWCA Civ 76 [2002] PIQR P241

[11] Rothwell vChemical & Insulating Co Ltd [2007] UKHL 39 [2007] 4 All ER 1047