Can I claim compensation if someone gives me COVID-19?

Previously we wrote about the implications of COVID-19 on liability for health providers and potential medical negligence claims. We have also written about workers’ entitlements if you contract COVID at work. In this article, we will look at some of the other legal implications of COVID for individuals and businesses, and answer this question: “Can contracting coronavirus lead to a claim for compensation”?

If an individual, a family member or loved one has contracted COVID-19 and has suffered an ongoing injury, death or substantial financial losses as a result, it is important to understand who may be legally responsible for those losses or injuries.

For the purposes of this blog, let’s assume that the affected person can reliably trace the source of their COVID-19 infection.

The short answer; under a “public liability” claim, a person injured due to the negligence of someone else may be entitled to compensation for medical treatment expenses, loss of wages and, where the injuries are permanent and significant, pain and suffering.

This compensation is paid either by the organisation who caused the harm or by their insurer.

To make a public liability claim for compensation for negligence you need to prove:

1. that you were owed a duty of care;
2. that duty was breached (negligence);
3. that breach caused your injury or loss (causation); and
4. it could be predicted that the negligence could cause your injury or loss.

The affected person will also need to show that the business/entities who had contact with confirmed cases of COVID-19 owed them a duty of care but breached that duty by failing to do all that was reasonably expected of them to minimise exposure and further transmission of COVID-19.

In cases where a person has been injured by the negligence of a single company or organisation that carries insurance or has assets it is a reasonably straightforward process.

For example, customers of the McDonalds in Fawkner who contracted COVID-19 could bring a claim for compensation if they were able to establish that they suffered injuries as a result of McDonald’s failure to take reasonable steps to protect them from infection.

The process is more involved when there is more than one defendant.

For example, the affected person would need to make a claim against each defendant which involves:

• establishing a cause of action against each party;
• serving legal documents on multiple parties;
• reviewing the defences of multiple parties;
• interrogating each party; and
• assessing the merit of each claim.

Additionally, establishing negligence is less simple where the responsibility for the transmission may lie with more than one party.

For example, for the hundreds of affected persons in the context of cruise ships like the Ruby Princess, it may be that fault is shared among multiple parties such as the cruise line and the NSW health authorities.

The cruise line may insist that they were compliant with NSW and Australian laws and only permitted their patrons to leave the cruise ship based on the NSW Health Department’s approval. However, NSW Health appear to have made their ‘low risk’ assessment based on outdated figures provided by the cruise line.

As part of the special commission of inquiry in NSW, Dr Jeremy McAnulty (Executive Director of Health Protection at NSW Health) has admitted that:

“several passengers on board the ship were swabbed for COVID-19 but more than 2,000 people were allowed to disembark before their results were returned.”

Thus, if the disagreement of liability continues, it can delay an affected person’s claim for compensation.

At the beginning of the COVID pandemic in Australia, it was reported that a number of people in the Mornington Peninsula had contracted COVID as a result of neighbours returning from an overseas holiday and failing to self-isolate.

Again, any compensation paid as a result of negligently caused injury or death is paid either by the individual at fault who caused their harm or by their insurer.

The impact of this is that generally, it will only be worthwhile for the affected person to bring a claim against another individual if the negligent person has insurance for their conduct or enough assets to respond to a legal claim and to pay the compensation.

Interestingly, even where a negligent neighbour’s assets are unlikely to be sufficient to respond to a compensation claim, some home and contents insurance policies cover the conduct of the insurance holder, even for their conduct outside the home. Theoretically, this might include compensation for negligently spreading COVID – although it appears that this is yet to be legally tested or applied.

As we can see, public liability claims such as these can be complex and it is important to obtain specialist legal advice about the potential legal avenues for obtaining compensation for the negligence of another entity or individual.

We continue to provide our client services during the coronavirus outbreak.

Our team is fully equipped to work remotely whilst still delivering high-quality legal services.

We are working closely with the courts and our colleagues to ensure services to all new and existing clients are delivered efficiently and with as little disruption as possible.

You can contact us by phone or email to arrange a telephone or videoconference consultation.

Phone: 1300 383 825

Email:  [email protected]

Book a Virtual appointment here (https://polarislawyers.com.au/contact-polaris-lawyers)