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These are unprecedented and exceptional times. Not in relation to the already known risks to health and safety from biological agents such as COVID-19, but to the response from governments across the world to that threat. The threat from COVID-19 is real, and people are losing their lives.

According to the National Register of Scotland, as at 19 April 2020 over 1,600 deaths registered in Scotland had COVID-19 recorded on the death certificate

56% of COVID-19 related deaths occurred in hospitals.

33% of COVID-19 related deaths occurred in care homes.

The statistics currently available, however, reveal only part of the story.

In an editorial which was quite remarkable for the Financial Times on 3 April 2020, ‘Virus lays bare the frailty of the social contract’, acknowledgment was made that those in low-wage jobs – including carers and healthcare support workers – continue to work during lockdown and are risking their lives in doing so.

We know that COVID-19 has been the cause of death in NHS and care workers. Across the UK at the time of writing, the figures stand at an estimated 69 NHS and 15 social care staff. There are, apparently, no separate figures available for Scotland.

These are all potentially work-related deaths. There should be Fatal Accident Inquiries for each one, however, there will not be a single FAI. No such death will be reported to the Procurator Fiscal because the requirement to do so only arises in situations where death results from “an accident” in the course of employment. No FAI has ever been held in Scotland where death is caused by an occupational or industrial disease. In any event, the Crown Office Procurator Fiscal Service has decided to suspend any requirement to report COVID-19 related deaths to the Procurator Fiscal.

Despite some of the rhetoric from UK media and politicians, we are not at war. The COVID-19 pandemic was not an unforeseeable risk. Coronavirus and lockdown legislation have not relieved employers and duty holders of their obligations to reduce the risk of injury from hazards such as coronavirus to as low a level as reasonably practicable.

Notwithstanding Section 69 of the Enterprise and Regulatory Reform Act 2013, the duties and obligations on employers and duty holders in relation to coronavirus continue to be informed principally by the Control of Substances Hazardous to Health Regulations (“COSHH”) 2002 and the Personal Protective Equipment at Work Regulations (“PPER”) 1992.

While most of the media attention and public concern is focused on the issue of PPE, it is a basic and universally accepted principle of health and safety law that PPE is the very last line of defence in the steps which must be taken to protect workers from hazards in the workplace.

COSHH requires that every hazard arising from work carried out by the employer or duty holder is identified and a risk assessment carried out in relation thereto. That risk assessment identifies every step that needs to be taken to protect others from the risk of injury created by the hazard.

The primary duty is to prevent any exposure to the hazard. No one should be exposed to the hazard, unless that is not reasonably practicable. Only where it is not reasonably practicable to prevent any exposure at all is it then the duty to adequately control any such exposure.

The duty to adequately control exposure will inevitably be multifactorial. In the case of coronavirus those control measures have included the proliferation of basic hygiene standards, including the frequent washing of hands. They include social distancing in the workplace. They include limiting the number of workers facing the risk of exposure to the virus.

The duty to adequately control exposure, however, includes the duty to introduce other measures that have either not been implemented or have taken some time to be introduced. These other such measures include testing for the presence of the virus in the workplace. As at 25 April 2020,  47,749 people had been tested in Scotland for Coronavirus. I understand there is no system for testing NHS workers to identify whether they have contracted the virus. Testing is only carried out at present when a patient shows symptoms associated with the virus. However, the prevalence of asymptomatic coronavirus has been known about for some time.

There should be monitoring of the number of workers exposed to the virus, as well as measuring and recording the level, duration and quantity of exposure.

There should be health surveillance of persons exposed to the virus. It would be reasonably practicable to test every health and care worker. We know from basic principles that the more occasions you are exposed to a hazard then the greater the risk is of developing injury. Prevention is better than cure.

There should be ongoing information, instruction and training provided to workers on the risks created by the virus.

Personal Protective Equipment is meant to be the last line of defence. For some health and care workers, it is proving to be their only defence. The PPE, however, has to be suitable and effective to protect the individual from the hazard the worker is being exposed to. Workers have to know how to properly use any PPE that is provided in order to ensure the equipment is being worn correctly and properly used. They need to be told how effective the PPE is in protecting them from the particular hazards to which they are being exposed. Each item of PPE has to be compatible with any other item of PPE provided and worn.

Furthermore, the PPE provided has to be suitable and effective for the individual to whom it has been provided. As reported by the TUC, “most PPE is based on the sizes and characteristics of male populations from certain countries in Europe and the United States. As a result, most women, and also many men, experience problems finding suitable and comfortable PPE because they do not conform to this standard male worker model. For instance, the use of a ‘standard’ US male face shape in the manufacture of RPE means that it does not fit most women as well as a lot of men from black and minority ethnic groups or with facial hair”. Social media is filled with selfies of female health care workers finishing their shifts with visible scarring on their faces because they have had to tie the masks on tightly to compensate for the fact they do not fit correctly.

Many workers have been exposed to the virus without any precautions being taken by their employer other than the provision of a wholly unsuitable and ill-fitting disposable face mask. Some have not even been provided with that.

When the UK Prime Minister, Al (“Boris”) Johnson, announced in a speech on 12 March 2020 that “many more families are going to lose loved ones before their time”, there was almost an air of inevitably to that declaration.

Yes, Prime Minister, unavoidable deaths will occur in any pandemic. However, some people are going to die prematurely from COVID-19 who should not have. Some of the deaths, and the injuries, could and should have been avoided. Some of those deaths that could and should have been prevented have arisen because the victim has been exposed to a hazardous substance at their place of work.

In Scotland no employer, company or public body is likely to be prosecuted by the Procurator Fiscal for breach of Health & Safety Legislation in any case of injury or death arising from COVID-19. No death from COVID-19 is ever going to be subject to a Fatal Accident Inquiry. The history of Public Inquiry in the UK suggests that no-one will ever be held accountable for the avoidable deaths and injury from COVID-19.

The only recourse to justice left open to the victims and the families of those who have suffered from, and died in consequence of, COVID-19 which they have contracted because of the negligence of others is the pursuit of compensation claims for personal injury through the civil courts.

This is a matter of justice.

Bruce Shields, Partner & Solicitor Advocate

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