This article looks at the serious issues that have arisen from the supply of Personal Protective Equipment (PPE) during the Covid-19 pandemic and how this has led to the first claims for compensation brought by doctors.
The provision of Personal Protective Equipment (PPE) to front line workers has become one of the most controversial issues while the country has been in the grip of the coronavirus (COVID-19) pandemic.
What problems with PPE have been highlighted by Coronavirus?
Concerns have been expressed widely within the media but also from trade unions, politicians and most compelling of all, from those directly affected - frontline key workers. Those working in healthcare and public transport, in particular, have been exposed to a disproportionately high degree and as a consequence, there have been higher levels of illness and fatalities within these sectors.
The criticisms and failings in relation to PPE are supported in law. It is recognised that the pressures faced by employers from the Covid-19 coronavirus are unprecedented but this does not provide an exception to the law. The Personal Protective Equipment at Work Regulations 1992 provides that “every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health and safety except where and to the extent such a risk has been adequately controlled by other means which are equally or more effective.”
Pressure on the Government and other employers increased over the first couple of months of the Covid-19 pandemic as examples of various failings came out in public. There was a call for a public inquiry by The Doctors’ Association UK, as reports came out concerning Government failures to purchase and distribute PPE. Their primary concern was that doctors and nurses were working without adequate masks, eye protection and gowns.
Alarmingly, the BBC reported that the lack of PPE for NHS staff and care workers could result in corporate manslaughter charges, as the number of deaths of doctors, nurses and carers increased at a disturbing rate. Legal and medical experts identified organisational and management failures, resulting in inadequate or absent equipment, as the reason why medics and carers were being exposed unnecessarily.
On 28 April the BBC’s Panorama programme reported on the failure of the Government to buy adequate protective equipment when the Coronavirus first struck. They also reported on the inadequacy of the existing stockpile, despite prior warnings over the inadequacy of PPE supplies. Shortly after this programme, there were reports within the Sunday Times that 400,000 gowns procured from Turkey did not meet NHS safety standards and were being returned. The concerns over equipment was compounded by further reports that equipment provided to frontline staff was not fit for purpose, with more stories of doctors and nurses having to re-use single use equipment or making their own protection at home.
Can I bring a compensation claim for inadequate PPE arising from Coronavirus?
Within legal circles there has been much discussion on the potential for compensation claims arising from the failure of the Government, specifically the Department of Health, and other employers to provide workers with adequate PPE. The media has already reported on the notification to the Department of Health of two doctors’ intention to bring a claim for compensation. The Doctors’ Association UK and the Good Law Project have also stated an intention to bring legal proceedings arising from the ‘failure to procure and supply adequate PPE’. It is widely expected that this is the start of a much higher number of claimants coming forward as more becomes known about governmental and intuitional failures and the full consequence of these failures materialises.
As the Government begins to relax the restrictions on employment and mobility, it is anticipated that many more workers will return to their workplace. This raises the question of whether employers are able to meet their obligations to protect their employees from risks to health posed by the Coronavirus within the workplace and where appropriate, to meet the legal requirement to provide Personal Protective Equipment.
What would I need to prove to bring a Coronavirus PPE claim?
When assessing whether an employee is entitled to bring a compensation claim, there are likely to be a number of controversial legal issues arising from the uniqueness of the circumstances created by the Covid-19 pandemic. A claimant will have to prove that their employer owed them a duty of care. While they will be able to point to the existing law in relation to the provision of PPE, there is likely to be pressure to provide protection to an under-resourced NHS who has coped admirably in the face of unprecedented circumstances. But while there will be much sympathy, understandably, for the NHS, should there be the same levels of sympathy and understanding for failures of management and procurement at the Department of Health level?
If a Claimant can establish that a duty of care was owned by their employer, they must then prove that there was a breach of this duty. The inadequacy of the PPE will need to established through evidence. Parties in litigation will refer to the Government guidance regarding use of PPE and make comparisons with the Word Health Organisation (WHO) advice and advice issued by Public Health England.
As with any personal injury claim, if a claimant can establish that their employer has breached a duty of care, they will then have the potentially challenging task of proving that the identified breach of duty caused their loss (injury). By definition, the Covid-19 pandemic has resulted in widespread infection throughout the population and so the challenge will be for Claimants to prove that their employer’s breach of duty caused their infection, and it was not caused by some other exposure outside the workplace. Scientific understanding of the virus is still developing, and there is much uncertainty over how Covid-19 is spread, but the answer to establishing a causal link with the breach of duty seems likely to lie within scientific expert evidence.
Can a family member of a frontline worker claim?
Another interesting area (and one where there is much legal discussion), is whether family members of employees could bring a claim (as a secondary victim) by virtue of contracting the virus from their family member “bringing the virus home”. Comparisons have been drawn with successful claims being brought by family members of those exposed to asbestos who contracted mesothelioma. It is early days but there does appear to be a legal route for both direct and secondary victims to bring successful claims for compensation if they can overcome the evidential hurdles.
What will the likely claim involve?
The value of the claims themselves are likely to vary widely. The Covid-19 virus affects suffers in a range of ways from mild, non-disabling symptoms to severe illness and death. The long-term consequences on the suffers lungs, for example, may not be fully appreciated at this stage. Claims will range from the tragic loss of a family member, to severe restriction and disability causing ongoing disability to more modest, non-permanent symptoms. It is also highly probably that many suffers have experienced psychological injury as a result of their experience.
IBB Claims clinical negligence and personal injury lawyers have the specific experience to help and advise with all types of clinical and workplace compensation claims, including those arising from the inadequate provision of PPE. We offer a free initial consultation for all PPE claims so we can get a clear understanding of your situation and give an honest assessment on your prospects of bringing a compensation claim.
For a commitment-free initial advice, call us today on 0333 123 9099. Alternatively, you can email us at firstname.lastname@example.org or use the contact form on the right to request a call back.