It has recently been reported that the first wrongful death lawsuit has been filed in the United States related to the COVID-19 outbreak. The case, filed in Cook County Illinois, is being pursued by the Estate of a supermarket employee who sadly contracted the disease and passed away two days after being sent home by their employer.

Within the proceedings the Estate raised allegations that the store had failed to ensure that sufficient safety measures were in place to protect their employees by way of PPE or anti-bacterial products nor had the recommended advice of the Public Health Authorities on social distancing, cleaning and isolation measures been fulfilled. The Plaintiff further raised allegations that the store management had direct knowledge that some employees were showing symptoms of the disease but no action to isolate or remove the employees was undertaken.

The lawsuit is currently ongoing and the judgment of the same will likely have widespread impact upon other potential claimants and may even lead to large-scale class actions being pursued against similarly exposed corporations.

Whilst a litigation of such nature is not unexpected in the United States, there is a notable pattern of large-scale actions commencing in the USA being mirrored in the UK and Europe shortly afterwards. This has previously been demonstrated in recent actions on vehicle emissions, food contamination and data breaches.

Following amendments to the Consumer Right Act 2015 the pursuit a “US style” class action in the UK courts became easier and is now a tried and tested approach in both the England & Wales and Scottish jurisdictions. It is anticipated that larger claimant solicitor firms in the UK are closely monitoring the position in the USA and will likely be readying their marketing budgets and litigation funding to consider similar approaches. Organisations should be mindful of their own liabilities and insurance coverage to protect from such future claims.

Any such claims brought in the UK would follow a conventional path of demonstrating a breach of duty of care. This may be on an employer liability or public liability basis. In both categories, the burden of proof would be on the claimant to provide sufficient evidence that, on the balance of probabilities, there has been a breach of duty and a clear causative link such that negligence has caused or materially contributed to a person becoming infected.

When considering the first step of breach of duty in a public liability claim the claimant would have to show a breach of an organisation’s duty of care to the public either by a failure to ensure a premises or operations were safe or to show a failure to comply with and/or sufficiently train employees on regulations.

In employee liability claims the focus is on the claimant evidencing an organisation’s failure to comply with regulations and failure to take all reasonable steps on employee welfare. Such steps would include ensuring safe premises, materials and equipment, working practices and competent colleagues.

In the event that a breach of duty was established, the claimant would have to establish causation. This would be less than straightforward in a COVID-19 related injury claim. It is unlikely that a claimant could overcome the causation hurdle on a conventional but for test. A claimant would need to prove that the symptoms suffered were caused as a direct result of their employer’s operations or lack of a reasonable response to an identifiable hazard caused by an organisation. In view of the multitude of potential sources which transmit the infection and the incubation period between exposure, noticeability and diagnosis of symptoms such causation evidence would likely be very high hurdle for the claimant to overcome.

Another important factor for an organisation to consider is insurance coverage and how the insurers may respond to the outbreak. When faced with such claims, wording of their Employer Liability and Public Liability insurance coverage will fall to be closely scrutinised to see if cover is provided for the virus outbreak.

The situation on liability claims arising from the viral outbreak is in the early stages and will be subject to significant changes and development over time. However, it is likely that potential targets for mass tort litigation will initially be those organisations involving key front-line workers such as the National Health Service, food retailers, warehouse and transport companies and the construction industry.

Further reading: Toney Evans, Special Administrator of the Estate of Wando Evans -v- Walmart Inc. et al case number 2020L003938, Circuit Court of Cook County (Illinois)