Lorna Ferguson

Public inquiries

Answers to the question on what could have been done better may emerge from the work of two public inquiries. Lady Poole QC is to chair a Scottish Covid-19 inquiry with an overall aim “to establish the facts of, and learn lessons from, the strategic response to the Covid-19 pandemic in Scotland”. The inquiry is to “identify lessons and implications for the future, and provide recommendations”. Separately, Baroness Hallett DBE will chair a UK Covid-19 inquiry that is scheduled to start work in spring 2022. There is likely to be cooperation between the Scottish and UK inquiries so that their work does not overlap unnecessarily.

Whilst both the Scottish and UK inquiries are likely to make recommendations for the future, neither will determine any question of criminal culpability or civil liability.

Potential criminal consequences

Answers to the question on Scots criminal law may come from the Scottish criminal courts if there are any prosecutions arising from Police Scotland’s “Operation Koper” and the work of the specialist “COVID Deaths Investigation Team” that has been set up within the Crown Office and Procurator Fiscal Service.

Initially, Covid-19 was excluded from the list of diseases causing death that should be reported to the procurator fiscal. This changed on 13 May 2020 when the Lord Advocate gave a statement in the Scottish Parliament requiring reports of presumed or known Covid-19 fatalities where “the deceased might have contracted the virus in the course of their employment or occupation” and where “the deceased was resident in a care home when the virus was contracted”, with this policy change to also apply retrospectively to fatalities before 13 May 2020.

Potential civil liability

Answers to the question on compensation may come from the Scottish civil courts if claimants pursue relevant claims to evidential trial. The standard of proof in civil cases is “the balance of probabilities”, a lower standard than for criminal cases. However, claimants in litigated Covid-19 civil claims based on alleged fault or negligence would face the additional hurdles of having to prove breach of a duty to take reasonable care and also a legally causative link between that breach and the loss or injury suffered.

The point on reasonable care illustrates a key difference between the Covid-19 public inquiries and any litigated Covid-19 civil claims. Whilst the inquiries may consider what could have been done better in response to the pandemic, one of the tasks of a civil court in considering a Covid-19 civil claim will not necessarily be to determine what could have been done better but, rather, to consider whether what actually was done or not done amounts in law to breach of a duty to take reasonable care.

The test traditionally applied by the Scottish civil courts on causation is to ask whether “but for” a particular breach, the particular injury or loss would have happened. This may present a real challenge to claimants in this area because of the difficulty in establishing a direct link between any breach and the disease. In certain other cases, notably occupational disease claims arising from exposure to known hazardous materials in the workplace, the law has developed less direct tests by asking whether a particular breach made a “material contribution” to the injury or whether it meant a “material increase in risk” of the injury being sustained.

It remains to be seen what test a Scottish civil court would apply on causation in the context of a Covid-19 claim but with coronavirus particles being so small that more than one thousand could fit across the width of a human hair, even the fact of exposure to such particles may be very difficult to prove let alone that any such exposure was negligent and was legally causative of loss or injury.     

Lorna Ferguson is a partner at BLM