The civil liability regime is governed in Belgium by the general provision contained in Article 1382 of the Civil Code. On these grounds, any person who is able to prove that they have suffered harm can obtain a reparation thereof against the person(s) who caused it, on condition that the latter’s behaviour implies a fault and causation can be determined. The reparation is often a sum of money. Running parallel to criminal and/or administrative sanctions is the right for an employer to be held liable under the civil law.
Depending on how businesses react and adjust to the COVID-19 crisis there is significant scope for civil claims and threat of claims. It is not possible to identify every sub-type of claim that could potentially be brought in every circumstance, but we identify below some key categories and risks of claims which may arise from employees, customers or business partners arising from breaches of the above restrictions and regulatory requirements.
Clearly, there may also be contractual claims arising from how businesses deal with staff and pay during and in the aftermath of lockdown.
Claims by staff related to unsafe working conditions
- The employers who are at the greatest risk of facing potential civil claims are the business and the public authorities which have continued to operate during lockdown, including healthcare and social care providers, other key public services (e.g. police, fire and ambulance services) and businesses where employees have continued to operate from their normal place of work, such as food retailers and distributors of online shopping.
The employees of companies in key sectors may consider that:
- the risk of exposure to COVID-19 has caused them to suffer from mental health issues and stress as a result of having to attend work (including via public transport with its own attendant risks) and expose themselves (and vicariously their families) to the virus;
- they should have been provided with some or better PPE;
- they should have been given better training; and/or
- their workplace should have been adjusted to create more distance between employees.
Under general principles of torts law, liability will only exist if the plaintiff shows evidence that :
- a fault has been committed by the employer;
- the plaintiff has suffered a damage;
- there exists a causal link between the fault and the damage.
For those who can demonstrate that they contracted the virus through work because of a fault committed by the employer, the risk of claims for substantial damages will increase.
Claims connected to the transmission of Covid-19 are likely to raise complex questions of causation. For each case of Covid-19, there could be numerous potential infection sources. By making prudent adjustments to the workplace and encouraging social distancing, employers can not only reduce the risk for their employees, but also make it more difficult to prove that transmission occurred at the place of employment, raising the causation hurdle should an unfounded claim be filed.
Claims by members of the public
Such claims must be founded on breach of a duty owed by the business, whether established by statute, contract or otherwise. Categories of potential claims include where members of the public were subjected to unsafe conditions. This is a concern for businesses that provide in-person services, such as entertainment venues, hospitality, transport, leisure and tourism.
Actions for collective redress (class action). In principle, class actions are not permitted under Belgian law. For actions to be admissible, the claimant must fulfil the "personal interest" requirement (articles 17 and 18 of the Judiciary Code).
An important exception to this principle was introduced by Chapter 2 of Book XVII of the Code of Economic Law, which was entered into on 1 September 2014, allowing actions for collective redress under Belgian law, albeit in a strictly limited set of cases.
In summary, this action allows all consumers who have suffered damage as a result of a common cause to obtain collective compensation for the individual damage suffered. Consumers will be defended by a recognized representative of the group.
Collective actions. Joined actions, on the contrary, are permitted in Belgium. A joined action is where multiple plaintiffs either jointly bring an action or request the court during proceedings to join their individual actions. This is only possible, however, if their claims are so closely connected that it is appropriate to try them together, in order to avoid potentially incompatible decisions.
Actions for the protection of a collective interest. This is an action brought by an organisation or by a group of people, regardless of whether they intend to achieve an objective of general interest, but with the aim to realise an objective that goes beyond the personal interests of the individual members of the organisation or group. Since January 2019, the law extended these actions for the protection of a collective interest, under certain conditions, to all legal entities whose purpose is to protect human rights or fundamental freedoms recognised by the Belgian Constitution or international treaties binding on Belgium.
Many of the events that lead to claims by employees or customers will be particularly suited for collective proceedings or class actions. This is due to both the number of potential claimants impacted by a single event and issues of common fact or law in relation to each claim.