Damage claims against employers unlikely as result of pandemic – barrister

Act provides legal duty for reasonable precautions to prevent person becoming infected

The 1947 Health Act stipulates that where regulations require a person to take precautions, and that person fails to do so, and as a result someone contracts the disease, then there is the grounds to take a case. Photograph: Getty

The 1947 Health Act stipulates that where regulations require a person to take precautions, and that person fails to do so, and as a result someone contracts the disease, then there is the grounds to take a case. Photograph: Getty

 

An “avalanche” of damages claims against employers is unlikely to emerge as a result of the pandemic, a leading expert in the area has said.

Covid-19 has been classified as an “infectious disease” for the purpose of the 1947 Health Act and this creates a legal duty to take reasonable precautions to prevent a person becoming infected with the disease, said barrister Tadhg Dorgan.

The Act stipulates that where regulations require a person to take precautions, and that person fails to do so, and as a result someone contracts the disease, then there is the grounds to take a case.

“I think the larger employers and institutions will be fine,” the barrister said. “Where I would see claims, in my own opinion, will be in the black market or small hairdressers or small time builders. They are where the actions might start.”

The measures that are being put in place by airlines, such as stipulating that people take tests before boarding, are public health measures, but are no doubt also the result of legal advice, Mr Dorgan said.

Mr Dorgan,and Peter McKenna BL are the co-authors of Damages, a leading Irish reference book for lawyers interested in the areas of law, such as personal injury, defamation, bullying, psychiatric injury and economic tort, that lead to the awarding of damages.

A second edition of the book, which also covers guidance on the general principles for limiting exposure to damages, is being published later this month by Roundhall. It includes a chapter on public health law and the prospect of claims arising from the pandemic.

The former president of the High Court, Mr Justice Peter Kelly, said he believed medical damages claims arising from the Covid-19 pandemic were “inevitable”.

During an interview with The Irish Times to mark the second edition of the text, he said he expected claims from people seeking damages because of the disruption to the health service caused by the pandemic would come before the courts.

“I think it is very likely, in areas such as medical practice, that delayed diagnoses or delayed treatments are likely to give rise to claims,” he said.

“Whether they would be successful or not is another day’s work, but certainly it is inevitable.”