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COVID-19 Australia: Weekly Briefing (22 June 2020)

  • Legal Development 22 juin 2020 22 juin 2020
  • Asie Pacifique

  • Coronavirus

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).

COVID-19 Australia: Weekly Briefing (22 June 2020)

Also, 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.

Education

As schools approach the end of Term 2, it is timely to consider their exposure for claims relating to the transmission of Covid-19 to/from their students or at their facilities.  

In April, the Commonwealth Department of Health released a statement advising school leaders on how to minimise the risk of transmission at their schools. The Department's advice included the following suggestions:

  • Reducing after-school activities;
  • Staggering start, finish and recess times;
  • Avoiding close-proximity queuing;
  • Cancelling excursions and assemblies;
  • Spacing students out in the classroom;
  • Maintaining smaller class sizes;
  • Ceasing public access to playgrounds;
  • Ensuring that all adult staff remain 1.5m apart;
  • Requiring electronic submission of student work;
  • Frequently cleaning shared equipment (e.g. playgrounds, computers, desks);
  • Excluding unwell children and staff; and
  • Communicating all health advice clearly to parents and students.

In May, the Department followed this up with a statement specifically relating to boarding schools and residential colleges. This included the following recommendations:

  • Reducing the number of residents in accommodation facilities;
  • Monitoring the health of residents;
  • Requiring all adults to remain 1.5m apart;
  • Reducing dormitory capacity to 25%;
  • Minimising the use of shared facilities;
  • Staggering meal times;
  • Ensuring frequent and thorough cleaning and disinfection;
  • Providing infirmaries with PPE; and
  • Developing comprehensive risk and outbreak management plans.

The Commonwealth's advice is further to state-based guidance and restrictions.

As occupiers of premises, schools have a right to place conditions upon the attendance of students and to enforce consequences for non-compliance. Just as AFL Player Connor McKenna's prospects, and those of some of his teammates, of seeing out the AFL season have been jeopardised by his failure to comply with the Bombers' protocols, students who disregard codes of conduct implemented by their schools could potentially face suspension.

A number of schools around the country have already faced outbreaks since returning to in-person learning some weeks ago, prompting swift shut-downs and wide-scale interruptions.

A boarder at a Sydney high school returns home to Dubbo for the mid-year break. Two weeks later, his immunocompromised mother tests positive for Covid-19 and becomes severely ill. The student also tests positive but has never displayed any symptoms. Does the school have any liability exposure?

Any claim in negligence made by the mother would be governed by the Civil Liability Act 2002 (NSW). She might also be able to claim for breach of contract, depending on the terms of the agreement she had entered into with the school.

For the purposes of negligence, the mother would face a hurdle in establishing that the school owed her a duty of care. The relationship between school and parent does not fall into an existing category of duty and therefore the mother would have to establish a duty in accordance with common law principles. The following factors would be relevant for this purpose:

  • The foreseeability of harm;
  • The degree and nature of control able to be exercised by the school to avoid the harm;
  • The degree to which the mother was reasonably relying on the school to protect her;
  • The physical and relational distance between the school and the mother;
  • Potential indeterminacy of liability; and
  • The mother's parental responsibility for the student.

If the mother succeeded in establishing a duty, she would likely argue that the school breached that duty by failing to test the student before sending him home for the holidays and for failing to take precautions against the risk of him contracting Covid-19 at the outset.

With respect to alleged obligation to test the student before sending him home, this would largely depend on the foreseeability of the harm and whether a reasonable person in the school's position would have tested him. Relevant factors in favour of the school include that the student was asymptomatic and the probability of infection was low. However, the burden of performing tests was not significant and the harm was potentially very serious. There is also the balancing exercise between doing nothing and accepting some risk to resume some level of normality.

The mother would also need to establish that any breach by the school was a necessary condition of her contracting Covid-19 and that it is appropriate for the scope of the school's liability to extend to this. It may be that even if the school had tested the student before the end of term, he would have gone home anyway to self-isolate.

If the mother establishes liability against the school, the school might seek to reduce damages on the basis that the mother was immunocompromised and therefore her medical expenses and other losses far exceeded those of the average Covid-19 patient. However, while pre-existing medical conditions can sometimes support a reduction of quantum, this only applies where the source of the Plaintiff's disabilities is partially attributable to that condition and not where the severity of those disabilities is exacerbated by a pre-existing condition. This is known as the 'eggshell skull' rule.

On balance, the mother's case is far from clear-cut but the school does have some exposure. Schools should be following all guidance to reduce the spread of Covid-19 to or from their students and should be mindful that the virus isn't kept behind when the bell rings.

COVID-19 & Elective Surgery

Annually, approximately 200,000 patients undergo elective surgery/procedures in NSW public hospitals. Patients are prioritised on a waiting list as to the clinical seriousness of any condition being treated by the surgery/procedures, with many patients waiting months to undergo surgery.

In response to the COVID-19 pandemic, on 25 March 2020, all NSW public hospitals suspended non-urgent elective surgery. The decision to suspend surgery was made to ensure the hospitals had the necessary facilities and staff numbers to manage all forthcoming COVID-19 cases.

With the marked decrease in the number of new COVID-19 cases in NSW, and specifically the number of patients being managed within public hospitals, the Australian Health Protection Principal Committee (AHPPC) made recommendations in April that elective surgeries and procedures be incrementally resumed from 27 April 2020.

Following this recommendation, the National Cabinet confirmed, that as at 12 June 2020, it was safe for public hospitals to reopen elective surgery in three stages, increasing from 50 to 75% of normal numbers by 30 June 2020. Thereafter, increasing to 100% of normal surgical numbers for elective surgeries, or as close to normal levels as is safely possible. It was also recommended that private hospitals adopt a similar approach to the public hospitals.

In order to ensure patient and staff safety within the COVID-19 setting, NSW Health and AHPPC have provided strict guidelines on patient management. These guidelines include questioning patients on COVID-19 exposure; monitoring closely patients for signs and symptoms of COVID-19; and ensuring all infection control protocols are adhered to. In respect to the latter, the Clinical Excellence Commission (CEC) has developed a general COVID-19 Infection Prevention and Control Advice for Health Workers, which is to be followed by all NSW Health staff, in addition to applying infection control protocol within operating theatres.

In conjunction with the abovementioned infection control protocol and guidelines, the Commonwealth Department for Health and Ageing has funded a research project run by Monash University, the Australian National University and New Zealand College of Anaesthetists Clinical Trial Network, in which a select number of patients undergoing elective surgery will be tested for COVID-19. A nasal swab and blood sample will be taken from around 3000 patients across a number of hospitals, during the course of their elective surgery management, in order to ascertain any exposure to the coronavirus (SARS-CoV-2) (the Virus) which causes COVID-19. The information collected will form part of a quality and safety monitoring project which aims to assist in future policy decisions and improve patient care. 

With an increase in the number of elective surgeries to be undertaken over the coming months, and during the collection of patient samples for various diagnostic and research purposes, hospitals and healthcare practitioners need to ensure that all reasonable infection control protocols, directed by the Department of Health, AHPPC and CEC, are followed in the management and care of patients both within the surgical suites and during pre and post-operative stay.  

Should a claim be brought by a patient alleging that they were exposed to the Virus during surgery or pre/post operatively, then evidence that the hospital staff remained vigilant in their use of PPE, and in implementing infectious disease protocol, will be relevant to defending any such claim.  

Public Health

The National Cabinet held its last meeting on 12 June 2020. While the next meeting is scheduled for Friday 26 June 2020, the public health situation has experienced some significant developments, which are likely to be considered in the upcoming Friday meeting. Notably, there has been a spike of cases in Victoria which has resulted in the first set of public health directions which has increased restrictions, after a period where the States and Territories have gradually been rolling them back. This increase is believed to have come from family-to-family transmission as a result of family gatherings where physical distancing rules are generally not observed. The Victorian Premier noted with dismay the problem of Victorians gathering with friends and family despite receiving a positive diagnosis and an order to self-isolate. On 23 June 2020, the Victorian Premier announced that Victorians could be “certain” of “significant community transmission” as a result of the increasing number of cases.

At midnight on 21 June 2020, all Victorian public health directions were updated. A list of the new directions is as follows:

  • Restricted Activity Directions (No 10);
  • Stay Safe Directions (No 2);
  • Care Facilities Directions (No 5); and
  • Diagnosed Persons and Close Contacts Directions (No 3).

While Victorians will still be permitted to gather in groups of 10 outdoors, they will only be able to have up to five visitors in their home. This stands in stark contrast to the next most restrictive States and Territories, such as NSW, Queensland and Tasmania, which permit up to 20 visitors. Additionally, Victoria will delay any further easing of restrictions until the precedent public health conditions are achieved.

At present, the Victorian public health directions are targeted at all Victorians. However, the Victorian Health Minister Jenny Mikakos has stated that the Victorian Government has not yet ruled out specific stay at home directions for those living in COVID-19 hotspots.

The COVID-19 orders and directions can be accessed at the following State and Territory websites (as at 24 June 2020):

As a result of the Victorian spike in cases, the other States and Territories have paused their plans to re-open borders. For example, South Australia had intended to re-open borders, without restriction, in late July for travellers from NSW, Victoria and Tasmania. That is, travellers from these places would no longer have to quarantine for 14 days upon arrival. However, this will not go ahead for Victoria if, closer to that time, the situation has not been brought under control. Similarly, Western Australia had planned to re-open the interstate borders on 8 August 2020, but this has now been abandoned. Western Australia remains set to remove all COVID-19 restrictions on 18 July 2020. The Premier of NSW has announced that NSW will not be closing its border with Victoria, but has reiterated that vendors are "at liberty to accept or reject any traveller", including from Melbourne.

Regarding South Australia, the State is currently in ‘Step Two Plus’ of the COVID-Safe Roadmap. That means that, presently:

  • Travellers entering from Western Australia, the Northern Territory and Queensland are not required to quarantine for 14 days upon arrival;
  • Private gatherings of up to 75 people may be held;
  • Funerals and weddings may have guests of up to 75 people;
  • Cultural and recreational venues may re-open;
  • Places of worship may re-open;
  • Gyms may re-open;
  • Outdoor gatherings of up to 300 people may be held; and
  • Indoor group fitness classes may resume subject to adherence to space requirements.

For South Australia, Step 3 is due to commence from 29 June 2020, which will see food courts, nightclubs, spas, saunas, casinos and amusement parks re-open. Music festivals may also be held. However, for many of these, approved COVID-19 Management Plans will be required.

In relation to international travel, Health Minister Greg Hunt announced on 23 June 2020 that Australia’s borders would remain closed for a “very significant” amount of time to preserve Australia’s status as an “island sanctuary” against COVID-19. As a result of the Victorian situation, Chief Medical Officer Brendan Murphy speculated that plans for the Trans-Tasman travel bubble will also be hindered.

Environment and Planning

Sydney Fish Market

On 17 June 2020, final plans for the new Sydney Fish market were approved through the new accelerated assessment program introduced as part of the NSW Government's response to the COVID-19 pandemic. Early works for the Sydney Fish Market are expected to commence within the next eight weeks, creating 7000 construction jobs and more than 700 ongoing jobs once the new markets open in 2024.

 Western Sydney $500 million investment

The NSW Government gave  approval for four major rezonings in Fairfield, Villawood, Harris Park and Silverwater.

Like the new Sydney Fish Market, these four projects were fast-tracked through the NSW Government's Planning System Acceleration Program, and are expected to deliver more than 2,000 homes, inject $500 million into the local economy and create 1,000 local jobs during construction.

The four planning approvals will result in:

  • a $326 million upgrade to the Villawood Town Centre to transform existing lots into a vibrant mixed-use precinct;
  • a $173.9 million facelift of the Fairfield Heights Town Centre to breathe new life into its high street with increased building heights and floorspace;
  • changes to the Auburn Local Environment Plan to allow an existing warehouse site to be converted to office space in Silverwater; and
  • changes to Parramatta’s Local Environmental Plan to enable further housing and improved pedestrian access near Parkes Street, Harris Park.

With COVID-19 directing people to work more from home and avoiding commuting into traditional city CBD's, the approvals seek to create and reinvigorate the existing retail and street frontages and encourage the stimulation of local economies across Western Sydney.

Tranche 3 of the Planning System Acceleration Program

On 21 June 2020, Premier Gladys Berejiklian announced a further 19 planning projects that will be fast-tracked through the Planning System Acceleration Program. If approved, the State will reach its target of creating opportunities for 30,000 jobs in three months instead of six.

Projects in the third tranche of the program include 11 Major Projects and 8 Planning Proposals:

Major Projects

  • Sydney Mero Victoria Cross OSD – Stage 2;
  • Robert Road Data Centre;
  • Yanco Solar;
  • Bulga Open Cut and Underground projects Mod 3 Bulga Optimisation Porject (Open Cut) & Mod 7 Bulga Underground;
  • Mannering & Chain Valley Projects Chain Valley Colliery (Mod 3) & Mannering Coal;
  • Amnity College New School Campus;
  • UTS Blackfrairs Precinct Research Building Stage 2;
  • Royal Randwick Racecourse – Leger Lawn Development;
  • Kyeemagh Public School;
  • Brandy Hill Expansion Project; and
  • Proposed Residential Flat Building 56 Beane Street Gosford;

Planning Proposals

  • Parkwood Urban Release Finalisation;
  • Amendment to the Hills LEP – Castle Hill North Precinct;
  • Amendment to The Hills LEP – 40 Solent Circuit Baulkham Hills;
  • Amendment to The Hills LEP – Cecil Avenue & Roger Avenue Castle Hill;
  • Cockle Creek;
  • Amendment to Strathfield LEP 2,4 and 6 Pilgrim Avenue and 9, 11 and 13 Albert Road Strathfield;
  • Amendment to Canterbury LEP – 5-9 Croydon Street, Lakemba; and
  • Amendment to Growth Centres SEPP – DHA Landholdings in Schofields Precinct.

Decision on projects in Tranche 3 of the Planning System Acceleration Program will be made by 17 July 2020.

For more information, see the following link - https://www.planning.nsw.gov.au/-/media/Files/DPE/Other/fast-tracked-assessments-tranche-three-2020-06.pdf?la=en.

Fin

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