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knowledge 26 March 2020 |

COVID-19: Civil Liability for Failing to Take Precautions and Exposing Others to COVID-19

The Health Act 1947 is described in its long title as being an Act to make further and better provision in relation to the health of the people. During the current crisis, it naturally finds itself centre stage. However, once the immediate crisis has abated, will litigants seek to invoke one of its lesser known provisions before the courts?

The Health Act 1947 (“1947 Act”) is a key piece of domestic legislation in the context of the current health crisis. Its existing public health provisions have already been enhanced in the past week with the enactment of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Amongst other amendments, this gives the Minister for Health broad powers to make regulations for preventing, limiting, minimising or slowing the spread of COVID-19. COVID-19 is also now classified as an “infectious disease” under that legislation.

However, the 1947 Act also contains another interesting provision which may come to the fore in the months ahead. This is section 43 of that Act which, in the context of civil proceedings, sets out a presumption as to the cause of an infection.

It states that where:

  • circumstances have arisen in which a relevant provision of the 1947 Act or of any related regulations requires a “person” to take a precaution against the infection of other persons with a particular infectious disease, and
  • that person has failed to take the precaution, and
  • any other person has been without his knowledge exposed by such failure to the risk of infection with the disease, and after such exposure has been infected with the disease,

then in any action against the first person by the other for damages suffered by reason of the infection, the court shall presume that the infection was the direct result of the failure to take precautions unless it is satisfied that by reason of the time of the infection or for any other reason that it was unlikely that such failure caused such infection. The onus will be on the defendant to satisfy the court that this is the case. This may be a difficult onus to discharge.

While “adult person” and “child” are defined in the 1947 Act, the word “person” is not. As a result, the definition of “person” set out in section 18 of the Interpretation Act 2005 may apply. This provides that a “person" shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual.

This potentially opens up claims against employers and other organisations who may have failed to take appropriate or timely steps in the workplace or elsewhere to prevent the spread of infection in breach of stipulations sets out in the Health Act 1947 or any regulations that the Minister may make under it to halt the spread of COVID-19.

It remains to be seen how the application of this provision will play out over the coming months though it should provide food for thought for anyone tempted to seek to avoid the effect of any legislation dealing with the current crisis.

How can we help?

The Disputes Group at McCann FitzGerald is ready and willing to assist clients in addressing all of their concerns at this difficult time, whether that arises in respect of regulatory and/or litigation issues business may face in responding to Covid-19. Alternatively, your usual contact in McCann FitzGerald will be pleased to provide further information.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.