Covid Healthcare Workers Litigation – outcome paused pending Inquiry findings

On 29 October 2024 Senior Master Cook provided interim case management of litigation involving frontline Healthcare workers who allege that they have contracted Covid-19 in the course of their employment. All but one of the claimants allege they have contracted long covid, which in turn has had a marked impact on both their lives and livelihoods. 

Breach of duty and causation are denied by the defendants.

The litigation centres on three generic issues:

• The suitability and adequacy of control measures taken by their employers to include Personal Protective Equipment (PPE).
• The defendant’s liability for the supply of any PPE was not found to be adequate or suitable.
• The law and appropriate tests to be applied to the causation of Covid-19.

The defendants sought permission from the court to list, as a preliminary issue, the question of whether the principle of non-delegable duty fixes an NHS Trust employer with liability where it reasonably relied on national infection control advice provided by the NHS/Public Health England and that expert evidence was found to be negligently wrong.

The court refused to do so, primarily on grounds of cost – citing the claimants’ limited financial resources, but also because trying the preliminary issue would not obviate the court having to then determine the defendant’s conduct in connection with the duty of care owed to their employees.

Noting that the third module of the Covid-19 Public Inquiry was presently underway with Baroness Hallett’s report expected “in the first half of 2025”, the court ordered that a further directions hearing take place in the summer of 2025. For one group of workers party to the litigation, a limitation moratorium was noted but was subject to all outstanding claims having to be issued by 9 January 2026.

Commentary

Despite predictions to the contrary, personal injury litigation involving Covid-19 has been extremely limited since the start of the pandemic. This tranche of litigation, when resolved, is likely to provide guidance on key areas, not least the appropriate legal proof of causation test to be applied. Given the need for the litigation to keep step with the wider public enquiry, it appears unlikely that a conclusion will be reached much before late 2026 or 2027 at the earliest.