No epidemic of Covid-19 Employers Liability claims - Edwards & Others v 2 Sisters Food Group Ltd [2024] EWCC 21 considered
In Edwards & Others v 2 Sisters Food Group Ltd [2024] EWCC 21, the defendant successfully applied for summary judgment against all claimants on the basis that their claims had no realistic prospect of success.
The claimants worked at 2 Sisters Food Group’s chicken factory in Llangefni, Anglesey. All claimed that they had developed symptoms of Covid-19 in or around June 2020. It was alleged that 2 Sisters had breached its duty of care towards them, failing to take all reasonable steps to manage the risk of transmission within the factory, and that their Covid-19 disease had been caused by that breach of duty. However, no medical evidence was served with the proceedings to support causation. The only medical evidence served was from a GP, confirming the diagnosis in each case. The claimants’ intention, they informed the court, was to obtain a report from an Occupational Hygienist following disclosure by the defendant, although (as the court observed) such an expert would be unable to advise on causation, only breach of duty.
The court was persuaded that the claimants could only succeed on causation if they were able to establish that the “Fairchild exception” could be applied, under which contribution to risk of injury is sufficient. Concluding that the Fairchild exception was not applicable to Covid-19 disease, the court granted the application for summary judgment.
Background
On the 18 June 2020, the BBC reported that 58 workers at the 2 Sisters Food Group chicken factory in Llangefni, Anglesey, had tested positive for Covid, with all 560 workers being told to self-isolate for 14 days. The number of confirmed cases had risen to 200 by 23 June, leading to significant consternation on the island and a decision not to re-open local schools.
In a letter to Anglesey Council’s chief executive, 2 Sisters’ owner, Ranjit Singh Boparan, spoke of the company’s “frustration and disappointment” at the outbreak. “You will be aware of the measures we already had in place to keep our people safe, he wrote, “but clearly no framework is infallible”.
2 Sisters was not alone. During the early stages of the pandemic, meat processing factories seem to have been particularly prone to outbreaks. In Germany, more than 2000 people contracted the disease after an outbreak in a German factory, resulting in 21 deaths. (Coronavirus: Covid-19 outbreak meat plant to reopen - BBC News)
The UK had officially gone into lockdown on 26 March 2020, with the introduction of the Coronavirus Act 2020. Everyone who could work from home was required do so. Those businesses which could not operate without workers physically present were to think carefully how best to operate safely. By May 2020, the Government had produced guidance notes for businesses aimed at facilitating a return to the workplace whilst maintaining sensible infection control measures. All employers were required to ensure they had undertaken a “Covid 19 risk assessment”, reviewing their work processes and identifying steps that could reasonably be taken to reduce the risk of infection transmission in the workplace.
At the same time, lawyers were considering the potential for civil litigation by employees or members of the public against businesses who were alleged to have taken insufficient care to reduce transmission. People were dying in large numbers, although deaths were heavily skewed towards the elderly and the already vulnerable. Margaret Keenan, the first member of the public to be vaccinated, would not receive her first does of Pfizer-BioNTech until 8th December 2020. The potential for litigation felt real, even if it was widely recognised that proving causation would be extremely difficult.
Public liability claims seemed unlikely to be brought given the practical impossibility of proving causation outside of certain, very specific, contexts. How could you possibly prove you contracted the disease following viral infection in your local pub or restaurant, say, rather than from one of a host of possible alternative sources?
Employers’ liability claims, it was thought, might have marginally more potential, particularly if the claimant could point to a cluster of infections proximate in time and space. Even then, however, causation would no doubt be hugely challenging, and perhaps impossible, to establish.
This was recently put to the test in the case of Edwards.
The case
The claimants all worked at 2 Sisters’ Llangefni plant. All claimed they had developed symptoms of Covid-19 in or around June 2020. It was alleged that 2 Sisters had breached its duty of care towards them, failing to take all reasonable steps to manage the risk of transmission within the factory.
Surprisingly, no medical evidence was served with the proceedings to support the claimants’ contention that the disease was caused as a consequence of 2 Sisters’ alleged safety failures. All that had been served were reports from a GP confirming that each claimant had developed Covid 19 in or around June 2020.
Understandably, 2 Sisters applied for an order that the claims be struck out or, in the alternative, that summary judgment be entered against the claimants on the basis that their claims had no real prospect of success and there was no other compelling reason why the cases should be disposed of at trial.
The claimants accepted that the GP reports did not assist with causation. Instead, the court was informed, they intended to instruct an Occupational Hygienist to advise on the issue, but could only do so once they had received full disclosure from 2 Sisters. This was an odd argument, as the judge identified. An Occupational Hygienist was not a medical expert and so would be entirely unable to assist the court with the issue of the causation of the claimants’ Covid-19 disease.
It was argued on behalf of 2 Sisters that the claims were in any event doomed to fail on causation as, given the nature of the disease, the claimants would never be able to prove that any breach of duty on the part of 2 Sisters (all denied) caused or materially contributed to its development . The only possibility, it was argued, would be for the claimants to persuade the court that it should apply the approach taken in Fairchild v Glenhaven Funeral Services Ltd (2002) UKHL 22 (“the Fairchild exception”) and find that contribution to the risk of developing the disease was sufficient to establish causation.
Fairchild concerned an individual who had been negligently exposed to asbestos by multiple tortfeasors and had gone on to develop mesothelioma, a form of cancer almost invariably associated with asbestos. The state of the science was such that it was impossible to prove which of the tortfeasors had exposed him to the fibres which set in train the development of the tumour. The standard “but for” test of causation could never be proven (but for the negligent exposure by X, the disease would not have been caused, on the balance of probabilities). Rather than allowing the claim to fail on that basis, the House of Lords adjusted the standard test for causation, ruling that, when it came to mesothelioma, a material contribution to risk would suffice. This exception to the standard approach was considered by their Lordships to serve the broader interests of justice, but was only to be applied in highly prescribed circumstances.
The judgment
The judge was persuaded that there was no proper basis upon which the Fairchild exception could be extended to Covid-19 disease, because:
“Covid-19 is a virus over which an employer would not be able to exercise control in the way an employer would be able to prevent someone developing mesothelioma by ensuring that they did not come into contact with asbestos. Covid-19, in contrast to asbestos….is a virus to which the public at large are exposed…..this workforce was exposed to covid everywhere, not just in the chicken processing plant.”
On that basis, he was content to conclude that the claims had no real prospect of success and grant 2 Sisters’ application for summary judgment. The claimants “were going to face a nigh on impossible task in establishing a causal link between any breach of duty on the part of D and their contracting Covid-19.”
Comment
The claimants’ cases appear to have been very poorly presented. It is difficult to understand why they thought evidence from an Occupational Hygienist would assist with causation, or why at least some evidence from a suitably qualified medical expert had not been obtained on the issue of causation prior to commencing proceedings. Perhaps this had proved impossible, and the claimants were, as observed by the judge, simply hoping that “something may turn up” in disclosure.
During the hearing, counsel for the claimants informed the judge that one of the claimants had not been anywhere other than the workplace and (so) could not have been exposed to the virus in any other context. If there was evidence to support that rather unlikely proposition, then an extension of the Fairchild exception, it could be argued, might not be required. We would be in standard “but for” territory. However, if it were true (as counsel for 2 Sisters observed), then one would have expected it to appear in the pleadings; it did not. The 2 Sisters Llangefni outbreak had taken place in June 2000, some time after the ending of the general lockdown. The prospect of persuading a court that the only possible source of infection was the workplace once lockdown had been lifted would, to say the least, pose considerable evidential difficulties.
To establish liability, a claimant must prove not only that the employer breached its duty of care in failing to take reasonable steps to control infection, but also that the identified breach of duty caused the disease. It is that second limb, proof of causation, which presents the greatest challenge to claimants in the context of a widely spread airborne virus.
There may well be other similar employer liability claims in the pipeline, but the fate of the claimants in this case, even allowing for the surprising approach of their legal advisors, highlights the considerable legal and evidential hurdles claimants will need to surmount to establish liability.
