David Lamb, our business claims handler and someone with a keen interest in recent insurance developments surrounding the pandemic, has written on the new claims insights and trends clients can expect.
Recently I attended an Aviva webcast focused on the potential implications of employers and public liability claims due to people catching or allegedly catching Covid19 on the premises of our client’s businesses.
So far there have not been many claims of this nature, but insurers are expecting a volume of these claims in due course. It is quite likely that the ‘ambulance chasing’ lawyers will start to advertise to encourage victims of Covid-19 or their families to make a claim.
A claim could occur at any time when an employee or member of the public visiting the premises are infected with Covid-19. The claimant would of course have to demonstrate that it was likely that they caught the illness on the premises (or from a visit elsewhere whilst engaged in work).
So how do I suggest our clients protect themselves from such claims? – It is largely treating Covid-19 like any other risk at work:
- Checking HSE advice
- Conducting risk assessments
- Staff training
- Ensuring that appropriate personal protective equipment (PPE) is available and used.
Covid-19 is more complicated than most risks. The risk assessment needs to be separate to any other risk assessments and must be fully documented. Other things have to be taken into account.
Some staff due to health conditions and or age (as well as the health conditions and age of the people they live with and might be protecting) need special consideration. They will have to be very carefully protected, particularly if it is necessary for them to come into the workplace.
Enforcement is critical, particularly where members of the public/customers visit the premises. There has to be clear signage and enforcement of PPE requirements and distancing.
Different environments have different requirements. Outdoor areas have much less risk than indoors. Indoor areas have to be well ventilated and the premises may not have been designed with good ventilation in mind.
The knowledge and understanding of Covid-19 has changed, as has the availability of PPE. It is therefore important that when each change is made, the reasons for and the context of the change is recorded as well.
At the start of the pandemic many businesses did not have enough PPE and could not obtain any because it was in such short supply (for example nursing homes). The measures they took, would have had to be the best that they could in the circumstances. It is however important that the circumstances and even the steps taken to try to get PPE, are recorded so that, if there were a claim, it is clear that everything possible was done to protect staff and customers (residents in the case of nursing homes).
If a Court looks at what was done at the time of a loss, they might not think that enough measures were in place, even though it was all that could be done, given the knowledge and PPE available at the time. This is why it is so important to record the context of the situation when the risk assessment is put in place.
If it is necessary to report a Covid-19 case or outbreak using a RIDDOR report an investigation is almost certain to follow. It is important that companies use any legal guidance that is available to them either via their normal policies or a management liability policy.
Guidance on Covid-19 via government and the HSE is constantly changing and employers must keep up to date with developments and update risk assessments, at the same time recording why they are being changed.
It is also important in terms of liability claims that where employees are working from home, the employers ensure that the home working environments are safe and that all the normal risk factors have been considered. They should keep in close touch with employees as the psychological effects must also be considered and risk assessed.
The situation at present is like no other and employers must take some time to assess all the risks associated with the pandemic, to check HSE and any other guidance, to prepare risk assessments, take and enforce measures to prevent the disease and to record not only what they have done but why and in what context.