COVID-19 injury claims – emerging trends?

As the number of infections within the UK population continues to rise, it may come as no surprise that claims for compensation for COVID appear to be gathering some momentum.  From statistics obtained from the Department of Work and Pensions, we can see that the number of claims registered with the Compensation Recovery Unit (CRU) – most of which relate to employer’s liability (EL) – look to be trending upwards since September, albeit that monthly levels are extremely low. The CRU data are broken down by a range of factors in the remainder of this post.

An important caveat: extremely low claim numbers

It is critical to point out first that COVID claims registered with CRU are extremely low, with barely 30 cases registered as of 20 November. This is effectively negligible compared to new daily positive tests of around 16,000 in early December. Nevertheless, breaking down this small data set could offer some potentially interesting insight if the indications it provides were to operate at scale.

Claims by month / gender / age

Case numbers appear to be picking up since September, with claims split equally between male and female and with the modal group at 50-59 years old.

Claims by types and representation

Unsurprisingly, most (just over three fifths, at 62%) of the claims registered with CRU – none of which has yet concluded – arise in an EL context.

The predominance of EL claims could, we suggest, be attributed to the health and care settings. These account for almost 70% of RIDDOR reports in respect of COVID made to the HSE to date, with 14,428 reported instances since April (189 of which were fatalities). Such reports are required to be made where a worker has been diagnosed[1] as having COVID-19 and there is reasonable evidence[2] to suggest that it was caused by occupational exposure, under the RIDDOR. One may think that some cautious over-reporting in the RIDDOR numbers is likely but the view of the HSE is that there is in fact, under-reporting in the system.  Nevertheless, the reports show the potential scale of the issue.

Through April-August 2020, the proportion of RIDDOR reports from the health and social sector constituted some 78% of all reporting, reducing to 50% from September to date.  In this second wave, there has been a significant increase in the proportion of reporting from the education and manufacturing sectors (from 2% to 17%), likely reflecting the return to face to face teaching and the opening up of the economy.  Initial difficulties with the provision of appropriate PPE in the healthcare sector also improved as the months went on, perhaps feeding into the reduction in reported cases. 

By comparison, the numbers of EL claims reported to the CRU to date are almost vanishingly small and the very low claim numbers probably reflect the significant hurdles to be overcome in terms of investigation and evidence, in particular of liability and of causation. These are only claims presented to a compensator, who has reported the claim to the CRU and therefore there will no doubt be a volume of claims waiting to be presented. 

With such small numbers to date, there are no clear trends as to the representatives pursuing claims although there is, as might be expected, some weighting towards those firms with union links.  There is however a significant increase in claims farming activity focused upon COVID-19 and we can expect these numbers to start to surge, not least if the earliest cases are successful.

Tracking cases against government guidance

We will keep you updated on the developing trends in this area as the cases registered to CRU increase. And, as the claims landscape develops, it will be crucial for defendants to be able to evaluate claims in line with the precise government guidance applicable at key dates any given case. We have therefore prepared a comprehensive indexed timeline of all of the relevant guidance and please email me if you would like to obtain a copy or would wish to discuss the analysis above.

Written by David Caswell

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