By: Raqib B. Osman
Negligence isn’t a virus – but it surely has helped spread one. Workplace infections account for a large number of third-wave infections in Malaysia – with 11 out of 23 infection clusters on 1st August 2021 coming from workplaces[1]. Many of these come from factories: A factory in Melaka which had recorded over 1000 positive cases in a short span of time[2], and a factory in Johor which had 13 employee deaths in less than a month[3].
Unsurprisingly, many people pinpoint the employers to be the cause of the infections – obviously, because the statistics speak for itself. COVID-19 infections can lead to long-term health problems and even death; so the question that pervades the law of torts is whether these employees can be compensated for being infected by COVID-19.
Several aspects will be discussed in this article: First, whether employers owe a duty of care to avoid exposing employees to COVID-19. Second, what is the standard of care required of an employer to prevent COVID-19 infections? Third, whether the duty may extend to cover psychiatric injury suffered by family members. Fourth, whether it is difficult, if possible at all, to prove causation for the purposes of negligence liability.
A. The duty of care & scope of that duty
In English law of negligence, a duty of care is established through the Caparo v Dickman[4]test. This test holds that there is a duty provided that 3 criteria are satisfied; reasonable foreseeability of harm, proximity between defendant and victim, and justice and reasonableness to impose a duty. These principles would also culminate into Malaysian law[5], hence the same test is used here.
The employees
It is established in English law that an employer owes a duty of care to employees; and that duty includes providing a safe place for work[6] and a safe system for working[7]. These are non-delegable duties; i.e. an employer may task a manager or supervisor to ensure the safety of employees, but the liability incurred by the employer still stands[8].
It then goes without saying that so long as there is an employer-employee relationship, the employer must provide a safe place & system of work; whether or not there are COVID-19 infections in the locality. Of course, in these dangerous times, providing a safe place for work naturally means taking precautions to prevent the spread of COVID-19 such as wearing masks, social distancing and regular testing.
The employees’ family, and other people
What is clear at this juncture is that employers have a duty to take reasonable steps to avoid causing the spread of COVID-19 to employees; but as we know, workplace cluster infections don’t stop at employees. The employee goes home, infects his family, and then that family infects people at another workplace. The very concept of a duty of care is to limit liability to a class of ‘foreseeable victims’[9], so this issue requires careful analysis.
Say for example, Ahmed goes to work at a factory (XYZ Industries) in Klang. He contracts COVID-19 due to his employer’s negligence in complying with recommended guidelines. He goes home, and his wife Sarah contracts COVID and goes to work at her office, infecting another person, Chong. Chong goes to the market and infects another person and so on.
The main question is where XYZ Industries’ liability will end. Perhaps a good reference point is Palsgraf v Long Island Railroad[10], whereby a staff at a train station had pushed a passenger carrying fireworks. However, it was not the passenger (who was in immediate danger) who was injured; instead, the fireworks launched to a concrete slab which fell onto another passenger. Drawing a parallel to the situation above, Ahmed is the person at immediate risk, but Sarah and Chong would not be.
It is certainly arguable that, since we now know how contagious and fast-spreading COVID-19 can be, Sarah is at a foreseeable risk of harm. This is certainly a possible contention, since a reasonable person in the position of the employer would foresee that Sarah may contract COVID-19.
While that is a possible contention, there is equally a possible challenge on the ground of proximity. Proximity, as defined in Sutradhar v NERC[11], is a degree of control and responsibility over a potentially dangerous situation. It is a possible defence to say that the infection from Ahmed to Sarah is beyond the control and responsibility of XYZ Industries. For that reason, it is unlikely that the duty of care extends to family members of the employee – and even less likely to extend to people in other places (such as, in this case, Sarah’s colleague Chong).
Thus, on this first question, the employer will surely owe a duty of care for physical injury/death toward employees. It may be possible that the family members/cohabitants of the employee can establish a duty of care, although the proximity requirement can be challenged. However, for any other persons affected, the proximity requirement is very unlikely to be satisfied.
B. The standard of care required
The standard of care required is objective – one cannot rely on inexperience, ignorance and unawareness when it comes to taking proper steps[12]. So long as they have fell below the standard expected of a person in those circumstances, they can be said to be negligent[13].
Compliance with Regulations and General Practice
It is likely that common practice in the industry will dictate the standard of care required[14]. Hence, if the particular employer had complied with the guidelines that is imposed by the government, such as the MCO Regulations in Malaysia, the employer has likely met the standard expected. The employees who claim negligence will face a heavy burden in proving the breach of duty if all SOPs have been followed by the employer[15].
This is, of course, only the case if the employers complied with the MCO Regulations. We have witnessed news about employers unscrupulously defying SOPs, such as exceeding the recommended limit on employee attendance[16] (at the time of writing, only 60% of workers can come to work in a factory). In these kind of situations, it is clear that they have breached their duty of care.
Changes in knowledge
There is still much that we do not know about COVID-19, and even more uncertainties when it comes to new mutations of the virus (Delta, Zeta, Lambda and Delta Plus variants). It is therefore very difficult to determine which safeguards are most effective.
For example, last year in 2020, it was thought that COVID-19 was not airborne and was mainly spread through surfaces[17]. That is why sanitation and deep cleaning was undertaken when an outbreak was detected. But today, it is now known that airborne transmission is more prevalent than surface contact[18].
It is important that the level of knowledge at the time of alleged negligence is taken into account, because we cannot assess a 2020 situation through the lens of 2021 knowledge[19]. Last year, we did not even think there was such a variant that can spread within mere seconds of exposure[20]. Hence, employers will only be liable in negligence if they failed to take precautions in light of current knowledge.
It seems that the best way to avoid being negligent is to comply with government regulations at the time – as the general practice is often the standard of care required. Negligence will therefore most likely arise when the employers refuse to comply. So even if the SOPs themselves prove to be dangerous, it is hard to prove fault if the employers comply with it (although it certainly may still be possible).
C. Psychiatric injury liability
As mentioned earlier in the article, a factory in Johor had faced 13 employee deaths due to COVID-19. Psychiatric injury to employees and their families are surely a relevant legal issue. Each class of victim will be examined in turn.
The employees
If an employee gets infected with COVID-19 and subsequently, due to the severity of the symptoms, suffers psychiatric injury, they can claim as primary victims. This is because they were already suffering a form of physical personal injury, and hence they are regarded as primary victims. For primary victims, if the Caparo criteria discussed earlier are satisfied, then the duty of care also covers psychiatric injury[21].
What if the employee is suffering nervous shock due to the death of another employee? It is established that so long as the victim is in proximity of physical harm itself, they can still be regarded as primary victims. This is even if the psychiatric injury is due to witnessing horrific sights[22]. Hence, if the employee suffers psychiatric harm due to the infection or death of another, they can likely claim as primary victims.
The employee’s families
The new Delta and Lambda variants can cause hospitalization and death very quickly. The families of the employee are at risk of physical harm, because the employee can easily transmit the virus to them. They may possibly be regarded as primary victims, but one important point must be noted: primary victims can only claim if the Caparo criteria is satisfied. As discussed earlier, the proximity requirement is contentious and it may not be established easily.
What if the family members are instead regarded as secondary victims? In such a situation, they would have to establish the criteria in Alcock v Chief Constable of South Yorkshire[23]. They will have to prove a relationship of love and affection, a proximity in time and space, and a sudden shock. The immediate family, such as the spouse, parents and children will likely have a claim as secondary victims.
D. Causation
A highly technical area, and even more complex when we have to consider the nature of COVID-19. It could be an infection in the factory, but it also could be an infection in the work quarters, at home, or at the supermarket.
Say for example, Ahmed works in XYZ Industries’ factory but his wife Sarah works in ABC Office. Ahmed also goes to the supermarket to buy groceries in a particular week. He later tests positive for COVID-19, and so do 100 other employees in XYZ Industries.
In this scenario, the appropriate test to be employed depends on the facts of the case. Two questions must be asked. First, how would the law determine if the infection took place in XYZ Industries’ factory? Second, how would the law determine if it was the negligence which caused the infection? (i.e. would the infection still have occurred if XYZ Industries was not negligent?).
The first question
Exposure to COVID-19 is everywhere. So how would we determine if XYZ Industries is the cause? You can be infected by COVID-19 even if you were exposed to a single droplet containing the virus, but the more you are exposed, the higher your risk of infection.
What is the correct legal test?
Test 1: Fairchild
COVID-19 appears analogous to the case of Fairchild v Glenhaven Funeral Services[24]. In this case, the plaintiff contracted mesothelioma which can be caused by even a single fibre of asbestos. Of course, more exposure to asbestos equals more risk of mesothelioma. Exceptionally, the House of Lords held that the material increase of risk of suffering the disease could satisfy causation.
Because the first question involves tortious (i.e. employers’ negligence) and non-tortious causes (i.e. exposure at home and supermarket), the case of Barker v Corus (UK) Ltd[25]confirms that Fairchild can still apply. In Barker, the court approached apportionment of liability based on the extent that the defendant increased the risk of harm. Hence, it is possible that employers may only be partially liable if Fairchild is applied. The ‘increase in risk’ will likely be assessed through time of exposure at work, compared to time spent at other places.
Test 2: Wilsher
We turned to consider Fairchild because it looks similar to COVID-19, because it is a ‘single fibre’ situation where more exposure can mean more risk. But Fairchild was exceptional and may only be used in cases where “it must be impossible to prove on the balance of probability that the defendant’s breach of duty caused the disease”[26].
That limitation of Fairchild’s application may mean that it is not the right test, since many countries practice contact tracing. Probably Fairchild may be useful if contact tracing is found to be unhelpful in determining cause. But if it is helpful, then the defendant is faced with multiple possible causes that expose him to the risk of disease.
The test that might be applied is that in Wilsher v Essex Area HA[27]. Where there are multiple agents of causation, the plaintiff must prove on the balance of probabilities that the negligence was the cause of the injury. In other words, it must be proven that the negligence of the employer was more likely the cause of infection than the potential exposure at other places such as at home or at the supermarket. A strong evidence would be the high number of infections at the workplace itself, as it shows that it is more likely to be the source of exposure.
If we were to follow Wilsher, there is no need to apportion liability based on increase of risk. Instead, it has been proven on the balance of probabilities that the workplace is more likely to be the cause than other sources of exposure. The employer will be fully liable for the injury or death caused by COVID-19.
It is submitted that if any form of contact tracing or any records detailing infections in a particular place are available, the appropriate test is Wilsher and not Fairchild – because it is possible to prove, based on number of infections, which is the possible cause. Wilsher also provides the advantage of imposing full liability and can fully compensate the claimant if it can be proven that the workplace is the likely source of infection.
The second question
Assuming we know that the infection took place in the workplace, how will we know if the infection was attributable to negligence and would not have occurred if there was no negligence? This is a much more difficult question in practice – because people can get infected even if they comply with government regulations. People can still be infected if they take precautions that are expected of them.
The appropriate legal test
Consider the risk of COVID-19 infections if the employer insists on employees wearing masks, imposes appropriate social distancing rules, and limits employees to 60% as per present government guidelines. It is certainly still not a 0% risk, none of these precautions are foolproof and no one truly says it is. Now consider the risk if any of these precautions are disregarded.
We should consider if this is a case involving one cause, or multiple agents of causation. The fact is that the only cause of infection is exposure, and any disregard of precautions only increase the risk associated with exposure. This is similar to McGhee v National Coal Board[28], whereby the risk is associated with exposure to brick dust. Failing to take precautions by providing a shower at the workplace increases the risk from the same cause (exposure).
Hence the McGhee test is the appropriate legal test. This test is that if there is a material increase in risk due to negligence, then causation is proven. Thus, assuming the risk of contracting COVID-19 is 20%, but it can increase to 60% if the precautions are not followed, then the negligence is the cause of the infection.
Therefore, for the second question, the ‘but for’ test will likely be unhelpful to determine whether the infection would occur if there is no negligence. However, the material increase of risk test in McGhee is the most appropriate test to apply – and if the negligence significantly increases risk of infection, causation can be made out.
Conclusion
It is certainly possible to sue employers for failing to provide a safe system and place for work. But there are several grey areas that can be identified. First, whether family members of the employee are proximate enough to be covered under the duty of care. Second, whether those family members are primary or secondary victims for the purpose of psychiatric injury claims. Third, whether the Fairchild or Wilsher test applies in determining whether the infection results from workplace exposure or other exposure.
[1] Utusan Malaysia | Tempat kerja terus sumbang kluster terbanyak, 1 August 2021 https://www.utusan.com.my/terkini/2021/08/tempat-kerja-terus-sumbang-kluster-terbanyak/ [2] Utusan Malaysia | Kilang komponen elektronik Batu Berendam ditutup, kes kumulatif cecah 1,000; 10 July 2021, https://www.utusan.com.my/terkini/2021/07/kilang-komponen-elektronik-batu-berendam-ditutup-kes-cecah-1000/ [3] Harian Metro | JKNJ syaki varian baru di kilang elektronik, 29 July 2021, https://www.hmetro.com.my/mutakhir/2021/07/736172/jknj-syaki-varian-baharu-di-kilang-elektronik [4] [1990] UKHL 2 [5] Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd & Anor [2018] 6 CLJ 683 [6] Latimer v AEC [1953] AC 543 [7] General Cleaning Contractors v Christmas [1954] AC 180 [8] Wilsons & Clyde Coal Co Ltd v English [1937] UKHL 2 [9] Bourhill v Young [1943] AC 92 [10] [1928] 248 NY 339 [11] [2006] UKHL 33 [12] Nettleship v Weston [1971] EWCA Civ 6 [13] Blyth v Birmingham Waterworks Co [1856] 11 Ex Ch 781 [14] Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. [15] Ibid. [16] Astro Awani | COVID-19: Kilang dikompaun RM62,000 kerana tidak patuh SOP [17] Nature | Is the Coronavirus Airborne? Experts can’t agree, 2 April 2020 https://www.nature.com/articles/d41586-020-00974-w [18] Nature | COVID-19 rarely spreads through surfaces. So why are we still deep cleaning? 29 January 2021 https://www.nature.com/articles/d41586-021-00251-4 [19] Roe v Minister of Health [1954] 2 All ER 13 [20] New Straits Times | Delta variant can infect a person within 15 seconds, says Health DG, 15 July 2021, https://www.nst.com.my/news/nation/2021/07/708683/delta-variant-can-infect-person-within-15-seconds-says-health-dg-nsttv [21] Page v Smith [1995] UKHL 7 [22] McFarlane v EE Caledonia [1993] EWCA Civ 13 [23] [1992] 1 AC 310 [24] [2002] UKHL 22 [25] [2006] UKHL 20 [26] W.E. Peel & J. Goudkamp, Winfield & Jolowicz on Tort (19th Edition), Sweet & Maxwell 2014 at para 7-020 [27] [1988] AC 1074 [28] [1972] UKHL 7