Given the continuing trend in negligence litigation it is possible that when the Covid-19 crisis subsides people will reflect on their care and negligence cases may result.*
Negligent spread among patients
It has recently been indicated that all frontline healthcare staff must wear a mask when dealing with patients. This is welcome news. The question could be asked should this have come into play weeks ago? Did the fact that masks were not previously mandatory for frontline healthcare workers to wear, contribute to the spread of Covid-19?
For example, if a person attended hospital for symptoms of a broken leg and was treated by a health care worker who was not wearing a mask and subsequently tested positive for Covid-19, as did the person with the broken leg, could a claim be upheld in negligence or breach of statutory duty on behalf of the HSE for failing to have appropriate hygiene and infection control rules and procedures in place from the early onset of COVID-19 in Ireland?
The law
Common law
In a claim under normal negligence principles, for a plaintiff to succeed generally he must prove:
- The defendant owed the plaintiff a duty of care to prevent his damage;
- The defendant breached his duty of care by failing to exercise a standard of care required in the circumstances of the case; and
- The defendant causes the plaintiff to suffer damage which had the potential to attract the remedy of compensatory damages.
It has long been accepted at common law that a patient is owed a duty by both the hospital and its staff to exercise reasonable care with respect to the health and safety of the patient.
It is arguable that a health provider had a duty of care to take all proper steps and adequate precautions to prevent unacceptable risks to patient safety such as infection by Covid–19.
Negligent failure to take appropriate precautions to prevent or limit the exposure to and spread of coronavirus among non-infected patients in hospitals could give rise to claims.
Difficulties may arise however with establishing a breach of duty and proving causation to establish negligence on the part of the hospital or health care provider.
The onus or burden of proof is on the plaintiff to prove and satisfy the Court that their Covid-19 infection was acquired due to a breach of duty on the part of the defendant and that this breach caused and materially contributed to any injury sustained.
It is anticipated that from an evidential point of view this may be difficult to achieve as the defendant will no doubt argue that the plaintiff acquired the infection outside of the hospital either before or after his or her admission.
This evidential hurdle may prove too high for many potential claimants grounding their claims solely on ordinary negligence principles.
Statutory duty
A plaintiff may however, in addition and in the alternative, also have a potential cause of action arising from the breach of statutory duties of the health care provider under Section 30 of the Health Act 1947.
Section 30 (2) of the Health Act 1947. states that “A person having the care of another person and knowing that such other person is a probable source of infection with an infectious disease shall, in addition to the precautions specifically provided for by under this Part of the Act, take every other reasonable precaution to prevent such other person from infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact”.
The Health Act 1947 has recently been further amended and enhanced by the enactment of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. This gives the Minister for Health broad powers to make regulations for preventing, limiting, minimising or slowing the spread of COVID-19.
Also under the Infectious Diseases (Amendment) Regulations 2020, Covid-19 has been classified as an “infectious disease” for the purpose of the Health Act 1947.
Accordingly, the statutory duty of care is clear: a carer of an individual with COVID-19 shall take every other reasonable precaution to prevent that individual from infecting others with such disease by his presence or conduct or by means of any article with which he has been in contact.
While Section 30 imposes criminal liability on the party that contravenes its provisions it could be argued that this provision may also ground a civil claim for compensation.
In fact Section 43 of the 1947 Health Act anticipates that civil proceedings for damages can be brought for breach of the precautions imposed under the Act. providing for a civil presumption that the infection was caused from the failure to implement the precaution.
This section provides that where a civil claim arises between two persons in which one is suing the other for damages as a result of having contracted an infectious disease because of the fault of the other in their failure to take precautions required by the Act or regulations made under it, the Court shall presume that such an infection was the direct result of the failure to take the precaution unless the Court is satisfied (and the onus of so satisfying the Court shall lie on the defendant) that by reason of the time of such infection or for any other reason it was unlikely that such failure caused such infection.
This is a very interesting provision as it represents a departure from the common law principles mentioned earlier where the onus is on the plaintiff to prove a breach of duty and establish that the breach caused his injury. Instead under Section 43, the courts will apply a rebuttable presumption that the party who failed to take the actions required by them under statute caused the other person’s infection.
This may be a difficult onus to discharge by the defendant and it may be the case that any future claims advanced in this area may rely more on breach of statutory duty grounds due to the lower evidential hurdles involved.
It appears therefore, that an infected person that knowingly, (and possibly or arguably negligently or recklessly) fails to follow precautions and causes another to become infected with Covid-19 may be liable for the resulting damages at common law and pursuant to the provisions of the Health Act 1947. A breach of the Health Act or any regulations regarding precautions made thereunder which causes a person to become infected with COVID-19 may give rise to civil liability.
While the Irish judiciary has yet to determine a hospital acquired infection case involving COVID-19 it will be interesting to see the court’s approach to this issue in the future, particularly, if claims are advanced based not only on ordinary negligence principles but also on breach of statutory duty grounds.
