COVID-19 Australia: Weekly Briefing (1 June 2020)
Assurance et réassurance
The weekly briefings are prepared to assist you with keeping up to date with the effects of any legislative, regulatory or general changes as a consequence of Coronavirus (COVID-19).
Clyde & Co also has a dedicated COVID-19 Information Hub which hosts many articles from around the world that provide different perspectives and in-depth analysis on many of these issues.
Junior and senior sporting competitions, training and contact activities will be able to recommence across NSW as of 1 July 2020.
This is a significant development in the relaxation of restrictions associated with COVID-19 because it allows competitors to go within 1.5m of each other.
However, organisations are required to implement an extensive list of restrictions, as set out in a COVID-19 Safety Plan developed by the NSW Government for the sport and recreation sector.
The requirements under the Safety Plan include:
Ten days after competing in a rugby grand final, a competitor is diagnosed with Covid-19. He learns that a player on the other side has recently been diagnosed and was most likely infectious on the day of the game. What is the exposure of the organiser?
The competitor's claim would be governed by the Civil Liability Act 2002 (NSW) (CLA).
The organiser most likely owes a duty to take reasonable care for the health and safety of competitors at games organised by it.
Whether that duty has been breached will depend on the foreseeability of the risk, whether the risk was not insignificant and whether the organiser failed to take precautions that a reasonable person in its position would have taken. In addition to or as part of the abovementioned Safety Plan, reasonable precautions would include the provision of hand sanitizer and the posting of warning signs regarding social distancing (although this may be construed to be a warning about an obvious risk and thus not required).
It would be difficult to argue that the risk of transmission was not foreseeable or insignificant given the extensive warnings about the contagiousness of Covid-19 by government and health officials. However, the organiser may be able to argue that it did not have the power to take certain precautions by reason of not owning or operating the facility where the game was played.
For example, if it can be shown that the likely point of transmission was when the competitor used a water fountain in the facility immediately after the infected player, the organiser could argue that it had no control over the water fountains and that it was the responsibility of the operator of the facility to cover them over or shut them off. A cross-claim would most likely lie against the operator of the facility if this was not done.
However, the organiser would bear some exposure because it is required under the government's Safety Plan to consult with the owners/operators of hired facilities to address the requirements in the Safety Plan. Accordingly, it arguably should have ensured that the operator of the facility had a compliant plan in place when hiring the facility. Moreover, the organiser is required under the Safety Plan to encourage participants to bring their own water bottles.
Consideration must also be given to the discretion of the competitor to use the water fountain, particularly if warning signs were affixed to the walls advising against the use of shared facilities. Personal responsibility is a central objective and one of the overriding purposes of the CLA. For this reason, if the transmission occurred on the field and the organiser had warned competitors of this risk, its case would be stronger.
Overall, the return to competitive and contact sports is a significant development in the relaxation of COVID-19 restrictions and organisers should be aware of their responsibilities in minimising the risks of transmission.
With the recent decrease in COVID-19 confirmed cases, the Australian Government continues to recommend lifting restrictions in respect to the number of persons allowed to accumulate in both indoor and outdoor dining and entertainment venues. Each State and Territory is, however, independently determining the application of the recommended changes.
Most recently in New South Wales, the 100 person indoor rule has been replaced with a blanket 4m2 rule, requiring venues to ensure that there is space enough to allow for at least 4m2 surrounding each person depending on the number of persons at the venue. This change allows for larger groups to attend venues with a higher capacity, while still ensuring that 1.5m social distancing rules are in place.
Ticketed events, such as the NRL and AFL, at venues with less than a 40,000 capacity will also be able to reopen on the condition that spectators are seated and the venue only reaches 25% of its capacity. There is no word yet on venues with capacities of larger than 40,000.
The above changes are a positive step for many larger facilities which have the capacity to hold greater numbers of people while still ensuring social distancing rules are enforced.
In that respect, a number of restaurants and bars are requiring patrons to provide personal details and sign an electronic waiver which seeks, amongst other things, confirmation of whether the patron has been in contact with any persons who have tested positive to COVID-19; if they have travelled overseas in the last 2 weeks; been diagnosed with COVID-19; or display any cold or flu like symptoms.
In addition, many venues are enforcing social separation of groups of persons while seated, as well as providing contactless ordering services and non-cash transactions.
While the above measures are in place to decrease the risk of COVID-19 cases, should a patron be untruthful on their form and/or be asymptotic when completing the questionnaires, then there is the potential for spread of infection should they carry the virus.
Further, there is also a risk of exposure when patrons use bathroom facilities and share utensils should infection control mechanisms not be maintained.
Insureds need to ensure that all reasonable infection management protocols directed by the Government and the relevant Public Health Authorities are followed in the handling of food and drink for patrons and in their waiting on patrons, in addition to ensuring social distancing rules are in place in all areas of the venue.
Should a patron bring a claim alleging they contracted the virus at an Insured's venue, then evidence of the abovementioned protocols being enforced will be critical to the defence of a claim.
On Friday 12 June 2020, the National Cabinet reaffirmed its commitment to the suppression strategy against COVID-19 in Australia and confirmed that its next meeting would take place on 26 June 2020.
Regarding the cessation of the Council of Australian Governments and the formation of the National Federal Reform Council, the National Cabinet has held further discussions and arrived at six initial priority areas for reform: rural and regional Australia, skills, energy, infrastructure and transport, population and migration, and health. As previously reported, the goal will be to drive job creation in these areas.
In its meeting last Friday, the National Cabinet considered several key issues, including the return of international students to Australia, which will provide a substantial contribution to the economy. The National Cabinet has flagged that it will be conducting a series of controlled pilot programmes to return international students to Australia on a small, phased scale, based on an assessment of the local public health conditions.
Another key issue in the present time is large gatherings, particularly in light of the federal government and several States flagging that people may soon return to sporting events, and the recent human rights protests in major cities of Australia. The Australian Health Protection Principal Committee (AHPPC) made a statement on large gatherings and the need for continued caution on 5 June 2020. The AHPPC noted its concern regarding large gatherings (particularly protests) and the challenge they posed to contact tracing. The AHPPC issued a further statement on 11 June 2020 after a person who attended a protest in Victoria tested positive for COVID-19, reiterating its previous statement and advising that anyone who attended a protest must ensure that they are tested if they develop any symptoms. Further, the AHPPC stated its ultimate recommendation, being that the Australian community should not participate in mass gatherings at the current time. Since that time, a second person who attended the Victorian protest has tested positive.
In the Australian States and Territories, restrictions continue to ease. Many jurisdictions have implemented specific requirements for employers and businesses under public health directions and orders, emphasising the attempt to strike a balance between re-opening the economy as soon as possible and ensuring that businesses are adequately prepared and COVID-Safe, in order to mitigate against a second wave of infections.
By way of example, Tasmania introduced the Direction under Section 16 (Workplace COVID Plan – No. 1) on 14 June 2020, which imposes a variety of requirements on a person conducting a business of undertaking (PCBU). In addition to the regular physical distancing requirements and capacity requirements, the Direction also requires a PCBU to review available information and guidance about COVID-19 on an ongoing basis, clean the workplace regularly, ensure those on the premises take appropriate hygiene measures, keep records of those who attend the workplace and appropriately train and supervise workers about COVID-19 risk control measures.
In Queensland, the Restrictions on Businesses, Activities and Undertaking Direction (No. 2), effective from 16 June 2020, states that a person who owns, controls or operates a restricted business, activity or undertaking may operate with more than the maximum number set out in that Direction if they operate in compliance with an Industry COVID Safe Plan, a Site Specific COVID Safe Plan or a Professional Sporting Code COVID Safe Plan, as approved by the Chief Health Officer.
On the topic of interstate borders, many States and Territories have flagged tentative dates for re-opening to domestic travel, with the exception of Western Australia, which, at the time of writing, has not yet provided a date.
The COVID-19 orders and directions can be accessed at the following State and Territory websites (as at 16 June 2020):
In a speech at the National Press Club, the Prime Minister addressed the Committee for Economic Development and outlined further details of the Government's Job Maker plan, including increased spending on infrastructure, major projects and deregulation plans.
On 15 June 2020, the Prime Minister committed a further $1.5 billion to road and infrastructure projects, prioritising smaller-scale projects in NSW and Victoria.
Federal and state governments will fast track approvals for 15 major infrastructure projects. Approval times for major projects are estimated to reduce from 3.5 years to 21 months.
The priority list of projects include:
The 15 projects worth $72 billion in public and private investment, are estimated to create 66,000 direct and indirect jobs and are on the fast-track for approval under a bilateral model between the Commonwealth states and territories.
Local councils can now access the tools, guidance and support of the NSW Government's Planning System Acceleration Program to fast-track council-led planning projects to help boost jobs and investment in their communities.
Planning and Public Spaces Minster Rob Stokes has advised that 11 councils have agreed to develop a Council Accelerated Assessment Program with the Government to help their communities rebound from the impacts of the COVID-19 pandemic.
The first group of councils to opt-in to the program include; Blacktown, The Hills, Parramatta, Camden, Campbelltown, Canterbury, Bankstown, Northern Beaches, Shoalhaven, Wagga, Albury and Port Stephens.
These councils will receive key resources from the State's Planning System Acceleration Program that will enable them to implement a transparent and robust fast-tracked assessment process at a local level.