INTRODUCTION
Tort is a civil wrong that is causes the claimant to suffer harm which results in legal liability for the person who commits the act. The punishment for the a tortious is usually monetary. There are overlaps between tort law and contract law and tort law and criminal law but any such can be tried in both the civil and criminal legal systems. Tort law is a law that is laid down by the courts and commonly used in order to settle small matters that differ on a case-by-case basis.
Since the advent of the coronavirus pandemic there has been a lot of confusion on how the people should deal with the pandemic and what precautions everyone should take. Moreover, there has been a discussion on what the duty of care should be followed by others in order to protect the people around them. Moreover, the question remains is what kind of duty of care an employer needs to follow in order to ensure the safety of their employees if they are present in a work space, a level of care that needs to be maintained by the employer in order to ensure the safety and well-being of their employees.
WHAT IS THE DUTY OF CARE OF NORMAL PEOPLE AGAINST EACH OTHER?
Since the advent of the pandemic the duty of care of the people against each other has increased to quite a degree as before the pandemic the people didn’t have a duty to wear masks in public places but since the pandemic the same has changed. Not wearing a mask in public can cause actual harm to others and hence make the person liable under tort law. Since not doing an act can cause real damages to a person, the duty of care has increased to a great degree, there are many such precautions a person needs to take since if they don’t it may cause harm to others.
This also raises the question of what is the scope to the principle of neighbour when the pandemic is going on, because the duty of care can only be owed to a person who can be considered as a neighbour. According to the neighbour principle explained in the landmark case law Donoghue v Stevenson, it was established that a person will be held liable for negligence if the act done has caused injury, loss or damage to another.
THE DUTY OF CARE OWED BY A BUSINESS OWNER
During the pandemic, most of the jobs implemented a system of work from home in order to protect their employees from the coronavirus, but there were many jobs that required the employees to still come in for their jobs. Initially people like doctors, nurses and other essential workers were only allowed to go to their workplace but as the pandemic eased, employees of service sectors began going to their jobs went the pandemic had slowed down. Though during this time, the risk from COVID had been reduced but the same had not become non-existent, there was still a change of harm being caused to these individuals by going to work for which the employer would be responsible. In a study it was found that there were 1413 deaths of healthcare workers in UK due to COVID just in the early phases of the pandemic. This raises the question whether proper care was taken or not during this time in order to protect the employees or not.
There have been also instances in which the people working in fast-food chains have claimed that proper precautions have not been taken by their employers and the working conditions cause them to be at risk for COVID infection.[1]
NEGLIGENCE BY THE HEALTHCARE PROVIDERS
The pandemic has caused a lot of strain on the healthcare system, the doctors and the healthcare staff were shorthanded and there was a shortage of good healthcare service. There were delays in tests, treatments and diagnosis of the patients in general. There were also shortage of beds and cancelation of treatments of other diseases because of the pandemic. Due to these factors the if a person has suffered harm which could have been avoided, the healthcare providers involved must be held liable for negligence. Many have suggested providing legal immunity to medical professional for any act they may have committed during this time but doing the same would not provide justice to people who have been affected by their acts.
The National Health service of UK has also been accused of medical negligence during the pandemic and the people affected point towards the times that the NHS’s increased cost of harm over the years and clinical negligence has also been a big problem for the NHS even before the pandemic. The clinical negligence is so bad in the NHS that it threatens the viability of the NHS.[2] The NHS has paid more than $3 billion in the year 2018-19, a year when there was pandemic not present. Since there was a lot of unexpected strain on the NHS due to the pandemic, more negligence is bound to happen in the course of this pandemic.
CONCLUSION
Due to the pandemic the there has been a lot of changes in order to accommodate the people who might be affected by the negligent act. A person working at any place where he might be exposed to the coronavirus brings liability on the employer to increase the duty of care. For example, if a person is working in a mine there are extra precautions that need to be taken by the employer in order to ensure the safety and wellbeing of the employees, similarly due to the pandemic the risk has increased in any job that requires physical interaction with the clients, therefore more protection must be provided by the employer in order to ensure that the safety of the employees.
The healthcare system has also been on the overburdened because of the pandemic and hence negligence has been committed by the healthcare providers because the hospitals were not able to handle the sheer amount of people that visiting it. The doctors were over worked and were not able to provide proper care and attention to people that were coming into the hospital. Because of the pandemic many of the people with existing conditions who were going to receive treatment were denied the same because they needed to treat other people. All this has caused a breach of duty by the healthcare providers as it was their duty to provide proper healthcare services to the people and they failed to do so. Due to the sheer burden on them they were also not able to provide the standard of care that was expected from them.
YLCC would like to thank Varchasva Agrawal for her valuable insights in this article.
[1] Eloise Barry, ‘If You Want Work, You Keep Quiet’: Fast Food Workers on the COVID Frontline, https://www.vice.com/en/article/z3v7b3/if-you-want-work-you-keep-quiet-fast-food-workers-on-the-covid-frontline.
[2] Clinical negligence costs: taking action to safeguard NHS sustainability, https://www.bmj.com/content/368/bmj.m552.
