Law firm Clyde & Co says the likelihood is high that aged care homes that have experienced COVID-19 outbreaks will face class actions – and other operators should also prepare to see claims from families and staff.
As of 9 June 2020, Australia’s aged homes had seen 68 residents test positive for the virus – with 27 deaths recorded, according to the Department of Health.
While there are no details on the number of staff infected, there have been significantly more staff infected than residents.
At the site of Australia’s worst aged care outbreak, Anglicare’s Newmarch House, 37 residents and 34 staff were infected – with 19 residents passing away, 17 while still positive.
I spoke to Clyde & Co Partner, Lucinda Lyons, and Senior Associate, Hannah Glover, about what kind of claims they anticipate seeing from families and staff.
They say it is likely that plaintiff firms will begin to explore a mass tort class action for personal injury.
These need to meet three main criteria: there must be seven or more persons bringing a claim for the same or similar related circumstances, and the claim must relate to at least one common issue of law or fact.
“In addition, individual claims are likely to be brought by patients or their family members for compensation in respect of bodily injury arising out of the provision of/or failure to provide adequate medical, health care related and aged care related services,” they said.
“With the health sector being particularly impacted by the pandemic, we are likely to see class actions commenced in respect to the implementation of viral protocols, guidelines and management of both employees and patients in various facilities, particularly those in the aged care sector.”
With 30 of Australia’s 102 coronavirus deaths (29%) linked to a number of known clusters of deaths in specific aged care homes, Lucinda and Hannah say these clusters are likely to result in the abovementioned class-action criteria being fulfilled.
“As a result, it is more likely than not that Plaintiff firms will explore the opportunities to bring class-actions with respect to a failure of aged care facilities to protect their patients and employees,” they said.
Lucinda and Hannah pointed to the UK where there have been a huge number of COVID-19 deaths in aged care homes and plaintiff law firms are already exploring the options of bringing claims against particular homes associated with COVID-19 outbreaks.
“There has also been a number of notifications with respect to individual claims brought in relation to medical malpractice for deaths at aged care facilities by family members,” they added.
The pair also expects the sector to be hit by individual claims commenced by family members of a deceased resident under the Compensation to Relatives Act 1897 (NSW).
“Individual claims may also be commenced by residents who have allegedly suffered psychiatric or physical injury associated with exposure to COVID-19 under the Civil Liability Act 2002 (NSW),” they stated.
“Employees who have suffered illness during the course of their employment which can be associated with, or partially contributed, to exposure to Sars-CoV-2, may also seek to claim under the Workers Compensation Act 1987 (NSW).”
