COVID-19 injury claims – emerging trends?

This content was written by BLM prior to its merger with Clyde & Co.

We commented upon the emerging trends in relation to COVID-19 injury claims in December 2020 and noted the surprisingly low number of claims registered with the Compensation Recovery Unit (CRU), based on statistics to mid November 2020. 

From statistics obtained from the Department of Work and Pensions, we can see that the number of claims registered with the CRU remains relatively low, despite the significant number of infections within the UK population over the Winter period.

We can see that the number of claims registered with the CRU – 2/3 of which relate to employers’ liability – gathered some momentum from September 2020, albeit that monthly levels are still low, averaging around 10 new cases per month. The CRU data is broken down by a range of factors in the remainder of this post.

An important caveat: extremely low claim numbers

Only 57 cases have been registered as of 16 March 2021. This is effectively negligible compared to the level of positive tests we have seen in recent months before vaccination impacted. 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 are almost split equally between male and female claimants with the modal group at 50-59 years old.  There is a developing number of claims in the 80-89 bracket, potentially reflecting involvement of care settings.

Claims by types and representation

Unsurprisingly, most (63%) of the claims registered with CRU – none of which has yet concluded – arise in an employer’s liability context.

The predominance of EL claims could, we suggest, be attributed to the health and social care settings. These account for almost 61% of RIDDOR reports in respect of COVID made to the HSE to date, with 19,726 reported instances since April (271 of which were fatalities). Such reports are required to be made where a worker has been diagnosed as having COVID-19 and there is reasonable evidence to suggest that it was caused by occupational exposure, under the RIDDOR.   There is some cautious over-reporting in the RIDDOR numbers. The HSE has stated that the strength of evidence in reports appears variable, some reports just noting the potential for work-related exposure to have occurred.   Nevertheless, the reports show the potential scale of the issue.

Through November 2020 to February 2021, the proportion of RIDDOR reports from employers increased substantially but has dropped down in March/April, reflecting the movement from the Winter period and the success of the vaccination programme.

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 as below.  Claims farming activity continues to focus upon COVID-19 and we can expect these numbers to grow.  None have been concluded as yet and success will of course provide support for further progress in other claims.

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 in any given case. We have therefore prepared a updated 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.