Claims relating to COVID-19 will continue to grow throughout 2021, both in the employers' liability and public liability contexts. The care home and healthcare sectors are where we expect to see the majority of claims. The developing understanding of the virus from late 2019 and throughout 2020, the availability of PPE and the knowledge of specific risk factors will all be relevant. Given the widespread prevalence of the virus, causation will be a significant challenge for any claimant. Claimants will have to establish that exposure for which the defendant was liable, rather than exposure elsewhere, caused them to contract the disease. We can anticipate secondary claims from the families of employees allegedly infected at work.
Beyond that, the changes in working patterns towards homeworking, social distancing, and reduced shift rotas make claims for workplace stress more likely. We already know that claims management companies are active in this area and expect to see claims increase significantly over the course of 2021 as a clearer understanding of duty, breach, causation and loss develops. CMCs have obviously seen a reduction in RTA work and will be alive to the opportunities presented both by COVID-19 claims and the wider effects of lockdown on UK workers.
With the recent high profile injury claims made by retired international rugby players, we can also expect sports-related brain injury claims to feature heavily as part of the landscape in 2021 and beyond. Following the publicity around the NFL concussion litigation several years ago, attention in the claimant community in the UK is now turning to both concussion and sub-concussive injuries sustained by professional rugby and football players in particular. Other sports including ice hockey and horse-riding are likely to be affected. The NFL claims principally related to chronic traumatic encephalopathy (CTE) which can only be confirmed as a diagnosis on post mortem. More recently, the focus of these claims has widened to traumatic encephalopathy syndromes (TES) and traumatic brain injuries in general, the outcomes of which (it is alleged) include CTE but also other conditions including other types of dementia and motor neurone disease.
It hardly needs to be said that this is a continually evolving area of medical science and, as such, a complex legal area in relation to both date of knowledge and duty of care. These are not simply employers' liability claims, but also claims with roles also being played by national and international regulatory bodies, referees, and medical personnel. Medical causation is also likely to be extremely complex, not least because many of the injured claimants will have spent years participating in (and being injured in) the same sports as schoolboys and amateurs prior to any professional contract being obtained. In all likelihood the issues raised by these claims will not be resolved in the next 12 months!
Modern Slavery and Human Trafficking
We have recently seen claims intimated against employment agencies and commercial organisations with whom victims of human trafficking and modern slavery were forced to seek employment by an Organised Crime Group. The increasing prevalence of modern slavery and human trafficking in the UK makes such claims likely to increase over the coming years. These claims raise a number of legal issues, including alleged breach of economic torts and the Protection from Harassment Act 1997, as well as the likelihood of seeking aggravated, exemplary and/or restitutionary damages (which will usually be uninsured). Whilst there are some direct reporting duties on larger commercial organisations and public authorities under the Modern Slavery Act 2015, the key to whether these types of claims are successful will be determining whether the agencies and/or companies with whom the victims are placed for work can be vicariously liable for the tortious actions of any of the perpetrators in the Organised Crime Group.
The doctrine of vicarious liability has been developing at pace over the last 20 years, since the House of Lords introduced the 'closely connected' test in Lister v Hesley Hall which enabled employers to be held vicariously liable for deliberate criminal acts conducted by employees (or those in a relationship akin to employment), provided such acts were closely connected to that employment. In the cases which have followed, the appellate courts have confirmed that vicarious liability can be imposed for fraudulent activities, equitable wrongs and breach of the Protection from Harassment Act 1997 (and breach of statutory duty generally), although the Supreme Court reiterated in last year's WM Morrison Supermarkets v Various Claimants that such actions should at least appear to be furthering the employer's business. As with all vicarious liability cases, the findings will be very much fact dependent, but this is an area which is likely to see increasing attention over the coming months and years.
Read our full report 'Looking Ahead in the Insurance Sector'.