Crawford mpany : The coronavirus and potential claims and causation

Yvonne Firth who recently joined Crawford Legal Services in the UK as a Solicitor within Travel and Casualty team looks at the potential claims that may be brought in future in the light of the coronavirus (COVID-19), the easing of travel restrictions and what practical measures can be put in place in order to reduce the likelihood of any potential claims.

Following travel restrictions being implemented at international borders, foreign travel and the free movement of people cross-border has vastly reduced, if not, at some borders stopped entirely.

Most holiday companies and the aviation industry resumed international travel from the beginning of July 2020. Therefore, international travel will re-start with the coronavirus still posing a real risk of infection and transmission to individuals.

What potential claims may arise in the near future when travel restrictions ease?

1.1 Negligence

Individuals may consider bringing a cause of action in negligence and Section 15 of the Package Travel Regulations will no doubt lead to potential claims, as a failure to implement local standards for the prevention of the coronavirus could well be seen as a failure on behalf of the supplier to perform the services with reasonable care.

At the time of writing, there are no known cases, of this type, within England and Wales. However, there have been cases brought in other jurisdictions. For example, a group action is being brought against a ski resort in Austria for failing to close the resort for a period of two weeks when they were aware of an employee who had tested positive for the coronavirus and had thereby spread the infection to multiple persons.

The overriding duty for potential defendants will be to ensure any risk(s) to customers are minimised and therefore the duty on potential defendants will be to have proper procedures in place to minimise the risk of infection. This is likely to include strict social distancing measures, increased availability for handwashing, sanitising of surfaces on a regular basis etc.

Further, these procedures will have to be documented and there will likely have to be evidence of a risk assessment having been carried out.

Breach of duty will be based on a breach of any relevant and applicable guidelines[1]specific to the country in question. Therefore, evidence of the local standards, in place at the time, and a breach of those standards, will need to be proven, by the claimant, in each case.

Specialist advice and representation from foreign lawyers will therefore be key for both the claimant and the defendant.

In any event, if the defendant can show that they have followed the applicable guidelines to the letter then it is likely that the defendant will be able to raise a successful defence to such claims. In addition, the defendant will likely be able to point to contributory negligence arguments, if available, for example, where a claimant has failed to wear a face mask where it was mandatory to do so or evidence that social distancing guidelines have not been adhered to.

1.2 Athens Convention

Following the record number of infected passengers and the number of on board quarantines that were put in place towards the beginning of the global pandemic, claims under the Athens Convention, which deals with claims originating from the international carriage of individuals on ships is a very real possibility.

Carnival Cruise Line, for example, has approximately 22 claims pending against it and Royal Caribbean Cruises is also potentially facing a class-action lawsuit. Albeit this is by crewmembers who insist they were insufficiently protected against the virus while working, whilst the primary cause of action under the Athens Convention, Article 3, is limited to passengers only and would not extend to cover employees / crew members.

Cruise lines have argued that at the outbreak of the pandemic they acted as quickly and efficiently as possible based upon the information that was available, when it was available, and that all decisions were based upon the expertise and guidance of prevailing health authorities. Whether this line of argument will be accepted by the courts as a potential defence, however, is yet to be seen.

Individuals if they wish to be successful in pursuing claims under the Athens Convention will have the onus of proving the fault or neglect and therefore will have to establish strong causation evidence against the potential defendant.

In response, cruise lines have spent the past few months putting in to place response planning requirements which include heavily restricting passenger numbers in order to ensure that social distancing measures can safely be implemented. Some cruise lines have even considered not allowing older passengers and those with pre-existing medical conditions on board. There will likely be the introduction of strict hygiene measures which include regular disinfecting of vessels and restrictions on embarking and disembarking also very likely.

Again, time will tell, whether the courts will accept that the above steps will have been sufficient in minimising risk to passengers and affording potential defendant's a defence to claims.

1.3 Montreal Convention

Finally, claims may potentially be brought under the Montreal Convention which deals with claims originating from multiple people being infected within an aircraft.

The concern for the defendant in these cases, being that if the claimant can establish a claim under the Convention, Article 17.1 instils a strict liability regime. However, there is hope for potential defendants in that there are targeted measures that can be put in place, discussed below, which will assist in keeping any potential risks to their passengers to a minimum.

Another hope for potential defendants is that these claims, if successful, are unlikely to be high in value.

The claimant, in order to be successful under Article 17, will need to surmount many hurdles; namely:

• Catching the coronavirus amounts to a bodily injury;
• Contracting the coronavirus was an accident; and
• Causation: that the contracting of the virus happened on board or when embarking or disembarking.

There will no doubt be several arguments surrounding causation relating to that of remoteness and proximity.

Airports have made the wearing of face coverings a mandatory requirement whilst also introducing regular disinfection and sanitation procedures. Temperature checks for passengers will also likely become the norm.

Airlines will also be expected to carry out frequent disinfecting of their fleet.

All airlines will also have to ensure that passengers adhere to strict new social distancing and health and safety guidelines. Some airlines, for example, have announced that they plan on alerting travellers of crowded flights with the opportunity to switch. Qantas airlines intend to introduce sequenced boarding and disembarking and limited movement within the cabin, in order to ensure the risks of contracting and spreading the virus on a flight is kept to a minimum. Some airlines, such as Thai airlines, is going as far as not allowing food and or drink to be consumed during flights.

As with cases under the Athens Convention, claims are limited to passengers and would not include employees. It is noted airlines are taking steps to protect their employees and as a consequence their passengers; for example, Qatar Airways now requires their employees to wear full PPE on-board flights.

At the time of writing, a number of class actions are already ongoing across the globe and are underway in Canada, Miami, California and Australia arising from the coronavirus pandemic and the alleged failings in the management of operations and obligations to consumers during the crisis. Time will tell as to whether the easing of travel restrictions will thereby cause the rates of infection of the coronavirus and accordingly for the number of potential claims to increase. We will also be able to see how courts around the globe deal with such cases. The expectation being that courts will seek similarities and parallels with cases where individuals have pursued claims alleging to have contracted the norovirus or SARs.

Ultimately, the more medical and scientific knowledge is gained, globally, the more this will assist both claimants and defendants with causation arguments, which are likely to be key in the success or otherwise of these cases.

To find out more, please contact Yvonne Firth on [e-mail].

[1] EU Commission: Guidance for the Progressive Resumption of Tourism Services and for Health Protocols in Hospitality Establishments C (2020) 3251