Here comes the first wave of coronavirus lawsuits

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The webpage appeared online at the end of March. “Dear Coronavirus victims,” it said. “If you were at the ski resorts of Ischgl, Paznauntal, St. Anton am Arlberg, Sölden or Zillertal on March 5, 2020 or later, and shortly afterwards were diagnosed with the coronavirus, then you may be entitled to claim damages.”

As of early May, 5,500 people have responded to the call. Peter Kolba, its author and the head of the legal department at the Austrian Consumer Protection Association VSV, has lodged a criminal complaint over Austrian officials’ delays in closing Ischgl ski resort in Tyrol after a bartender tested positive for the virus. According to Austria’s public health agency, 800 Austrians and more than twice as many foreigners became infected at the resort. Kolba also intends to bring a civil claim on behalf of the 600 people (and counting) who have given his organisation power of attorney, and will assist others in bringing individual claims. “For us it is a very, very big subject, but it is also for us a very important action because we want to be a consumer organisation that helps consumers all over the world,” says Kolba. His main target in the civil claims, he says, is the Republic of Austria.

The barriers to succeeding in such a case are extremely high, says Christoph Völk, a lawyer in Vienna specialising in public law. Firstly, “people will need to prove that they got infected in Ischgl, which will be very hard”. Then, the suit would need to show exactly what the authorities knew about the virus and the situation at the resort at the moment each claimant became infected. And finally, says Völk, “there are so many different stories behind each case that I doubt whether this matter is suitable for a group lawsuit”.

But in spite of these obstacles, Kolba is not the only person in Europe trying to hold the authorities in his country legally responsible for their role in coronavirus infections and deaths.

In France, 600 doctors calling themselves the C19 Collective have brought a criminal case accusing the French prime minister and former health minister of failing to adequately prepare for the epidemic. Others have brought cases alleging crimes including manslaughter. The fact that French criminal lawyers say the cases are highly unlikely to succeed – not least because they would need to prove that the ministers acted with full knowledge and intent – hasn’t stopped them from sparking a national conversation.

In Italy, criminal investigations have been opened by public prosecutors offices around the country, the most high profile of which will try to determine responsibility for devastating localised outbreaks in Bergamo and Genoa. Luca Fusco, who founded the 50,000-members-strong Facebook group Noi Denunceremo – veritá e giustizia per le vittime di Covid-19 (We Will Denounce – Truth and Justice for the Victims of Covid-19) after his father died in the Bergamo outbreak, says the group’s newly incorporated non-profit has been invited to formally assist with the investigations, and they will also be involved in subsequent trials. “We don’t want money, we don’t want damages, that doesn’t interest us,” says Fusco. “We’re acting as a watchdog, to make sure that whoever is responsible, pays for their responsibility.”

With legal actions and criminal investigations into the authorities gathering steam around Europe, could anything similar happen in the UK?

The short answer at this point is no, says Rajkiran Barhey, a barrister at 1 Crown Office Row. The UK likely lacks any mechanisms that would allow an individual to bring a criminal case against a government department or official in this context. And for civil cases, “it would be asking the court to adjudicate on fundamentally political decisions, which is not really its role”. Instead, the public’s best bet for accountability is a combination of inquest proceedings and a public inquiry, both of which could give rise to civil or criminal litigation further down the line. But both processes have their issues.

Inquests examine the causes of someone’s death, but are not designed to address systemic government-level failings, and rarely look at more than one death at a time. This is where a public inquiry might come in. Paul Bowen QC, a public and administrative law barrister at Brick Court Chambers, thinks an inquiry will be required by Article 2 of the European Convention on Human Rights (unrelated to EU membership, and of which the UK could remain a party even after Brexit) which concerns the state’s duty to protect life. “I can’t see the circumstances in which there won’t be a public inquiry coming out of what’s happened,” says Bowen; “the only question is when and what kind”.

While public inquiries have their advantages – they have broader powers to call for evidence, and are publicly funded – Barhey thinks that there would be some obvious shortcomings, too. “They take a long time, they’re expensive, and by the time any conclusions are actually reached a lot of the main actors will be long gone,” she says.

Then there are the anticipated clinical negligence suits against medics. Many countries have introduced additional legislation to protect healthcare workers, and the UK’s Coronavirus Act indemnifies doctors against claims arising out of their work during the pandemic. But most governments are still grappling with how best to address the situation, and some say their country’s protections are insufficient. Cristiano Cupelli, a professor of Criminal Law at the University of Rome Tor Vergata, has been trying to introduce safeguards in Italian law, as he fears doctors are not adequately shielded under current criminal legislation. “This is a situation of great difficulty,” he says, “that affects the ability of doctors to do their best.”

Finally, there are the cases against private companies and employers. In the US, wrongful death lawsuits have been brought against cruise lines, care homes, and Walmart. One US law firm has questioned whether coronavirus could be “the new asbestos” for mass tort litigation.

Ross Whalley, a personal injury solicitor at the law firm Leigh Day, says his team has already been approached by the families of two healthcare workers who died from the virus. He says that to win a workplace injury case in this context, the claimants would need to demonstrate both that the victim became infected at work – “which will be very very difficult” – and that their employer had failed to follow the latest government guidance on protecting workers when the transmission occurred.

Despite the challenges to winning such a case, however, Whalley notes that the standard of proof for demonstrating workplace transmission is the balance of probabilities – i.e. a 51 per cent or greater likelihood that the illness was contracted at work. “If you have, say, a healthcare worker and they live alone, or they live with one other person and that person doesn’t have Covid, and they have had limited social contact, then causation is quite strong – this has likely been caused by the breach of duty in the workplace exposure.”

One common factor across all these cases is that the courts in most countries work slowly, and many trials will take years to come to an end. Back in Austria, Kolba says his clients’ best chance of restitution may not lie in the courts at all, but with a government compensation commission similar to that set up after Austria’s 2000 Kaprun disaster, in which 155 people perished in a train tunnel fire. His hope is to pressure the government into holding such a commission, if the crisis lifts, as early as summer or autumn of this year.

“It would be in the interests of all I think, because it is in the interests of the victims to get fast compensation and it will be in the interests of Tyrol to restart. And for this I think they have to be clear of their responsibility,” says Kolba. “People don’t contact us saying: ‘How much money can I get?’. They want to hear that the authorities are sorry.”

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