GL TRENDS UPDATE
COVID-19 risks The general liability landscape in Australia is evolving in light of the COVID-19 pandemic. Australia’s federal system of Government features significantly in how COVID-19 will impact the general liability space in Australia. The Australian constitution confers certain powers on states and territories, each with its own system of government, its own laws on matters such as health and education, and most critically, its own response to the pandemic. Although the Commonwealth government sought to harmonise the response to COVID-19 across the states and territories via a National Cabinet, the reality has been far from uniform. Infection rates have varied between the states and territories, largely as a result of different strategies designed to supress the spread of COVID-19 while the vaccine rollout takes shape. We’ve seen a variety of government measures intended to achieve this, including border closures, lockdowns, work from home mandates, the use of face masks and curfews. To a large extent the various state and territory government responses to the pandemic have been heavily influenced by a combination of political expediency and conservative medical advice.
Some governments and industries have mandated that vaccinations are compulsory in certain occupations (such as in aviation, health and in certain segments of the construction industry). There have already been legal challenges against these requirements, but at this stage, none of those challenges have succeeded. However, some sectors have not received clear government guidance on whether they should request proof of vaccination from third parties, such as customers, visitors, students, workers and contractors. We are likely to see claims for discrimination by those who are un-vaccinated. Noting that the home has become the new office as a result of COVID-19, in the longer-term there is every chance that employers may face some exposure by failing to provide a safe place and system of work should there be some deficiency with the home office, which has caused or contributed to a work-related condition. We may also see claims related to a failure to implement COVID-19 safe return to work plans, or where insufficient direction has been provided about taking appropriate protections while commuting to and from the office. Finally, the OECD has called for a “whole of society response” to the mental health risks posed by COVID - 19. Its data showed that since March 2020, the prevalence of anxiety and depression in the community has significantly increased. Organisations engaging contractors should seek to manage their exposures to psychosocial hazards within their control, which might involve changes to the work environment, managing increased demand or managing the fallout from reduced job security.
We have already seen class actions issued against a number of targets. These include:
• A claim against Carnival Cruises regarding a COVID-19 outbreak on the Ruby Princess
• Claims against the proprietors of aged care facilities in Victoria where COVID-19 was cited as the cause of death of hundreds of elderly people, and • Claims against the Victorian Government as administrator of its hotel quarantine program, which resulted in outbreaks that led to the introduction of lockdowns and restrictions. The various state and territory no-fault WorkCover schemes have seen successful claims being made by workers who have established they contracted COVID-19 in the course of employment. We are yet to see what flow on effect there will be for common law claims, including against non-employer entities. Many infection clusters in Australia have involved construction sites. This may lead to a rise in liability waivers or indemnities in contracts regarding the risk of transmission to protect project parties from third party liability claims. The robustness of these waivers is likely to be challenged. To avoid the risk of common law liability being established, insureds should comply with the relevant state or territory health directives to avoid any alleged breach of duty.
Against this background then, how will COVID-19 impact the general liability space in Australia?
contents >
< back next >
8
Made with FlippingBook Proposal Creator