TB cases on the rise in England

The UK Health Security Agency has recently reported a marked increase in the incidence rate of TB cases in England, and the report suggests that this may be a growing trend. We envisage that a rise in TB case numbers may in turn result in an increase in claims against Defendants. This may be especially acute in those industries which cater to vulnerable populations, such as schools & nurseries, prisons and the care sector.

Introduction

Recent government data suggests Tuberculosis (TB) cases are on the rise in England. While TB remains relatively uncommon, 4,855 cases were reported in 2023, representing an 11% increase on the figures from 2022. Provisional data for the first three quarters of 2024 indicated a further 13.7% increase compared to the same period in 2023. This was the largest reported increase since 1971 and while England remains a relatively low incidence country, the upward trend suggests the country may struggle to meet its goal of reducing TB cases by 90% by 2035.

TB can present either as a latent (non-transmissible) infection, or in its active (transmissible) form. It is spread predominantly by the respiratory route, when bacteria aerosolised by people with the active form of the disease are inhaled by others. This may only result in a latent TB infection which remains dormant in the newly infected person, but there is a risk of the latent TB developing into an active infection, particularly in people whose immune systems are compromised, or who are socio-economically deprived.

If left untreated, TB can become life-threatening and cause serious and lasting injury in the form of severe respiratory disability and injury to the brain. The increase in reported incidences of TB cases therefore raises both public health concerns and the potential for an increase in the number of claims relating to TB infections.

Areas of practice likely to be affected

Traditionally claims relating to TB have taken the form of clinical negligence claims where it is alleged that there have been delays in diagnosing and treating the early signs of an active TB infection. Timely and accurate detection and management of TB improves disease outcomes and reduces onward transmission, however, diagnostic delays have not improved in England in over 5 years (the median diagnostic delay for pulmonary TB was unchanged at 75 days in 2023) and the current funding crisis in the NHS is likely to perpetuate or even exacerbate this situation.

We are therefore likely to see an increase in clinical negligence claims. However it is also anticipated that there may be an increase in Employer’s Liability (EL) and Public Liability (PL) claims, given TB’s strong association with immigration and socioeconomic inequality. One or more social risk factors (alcohol misuse, drug misuse, homelessness, imprisonment, mental health needs and asylum seeker status) was reported in 17.2% of individuals diagnosed with TB aged over 15 years in 2023.

Individuals born outside the UK account for almost 80% of TB notifications, however, for the first time since 2012, the rate of TB in people born in the UK has also increased. We are therefore likely to see an increase in claims relating to sectors which cater to these vulnerable populations, such as immigration and detention centres and prisons.

Those operating such services may well see an increase in both EL claims from staff and PL claims from detainees or prisoners, particularly in facilities where overcrowding is an issue as we have seen from the recent reports relating to prisons. Operators will need to ensure they have appropriate screening, detection, isolation and infection control measures systems in place to minimise the risk of transmission.

We may also see an increase in PL claims arising from inadequate housing, particularly where overcrowding is an issue and where it is alleged for example that there have been delays in sourcing a larger property for a growing family or delays in responding to reports of significant disrepair. The ongoing housing crisis and financial pressures on local authorities mean that this is likely be an area of increasing concern.

It is worth noting that children are particularly vulnerable to TB, especially those aged under 5 years, who are at greatest risk of developing severe TB disease. This offers the prospect of an increase in claims affecting the education and childcare sector, given the high rate of infection transmission generally in schools and increasing class sizes.

Potential issues for Claimants, and for Defendants

Claimants, especially those who are diagnosed with a latent TB infection, may struggle to establish causation in order to succeed in any claim. Unlike active TB which may be definitively linked to a source of infection via genetic sequencing, there is no means of identifying when a latent TB infection was acquired. This may prevent a Claimant from establishing on a balance of probabilities that a particular allegedly negligent exposure was to blame.

In an effort to circumvent this challenge, and lower this causative hurdle, Claimants may look to rely on a material contribution argument as per Holmes v Poeton rather than seek to satisfy the ‘but for’ test. The material contribution test is already being explored in the context of COVID-19 litigation, and it’s possible that arguments for extending it to cases of TB infection may find some favour, particularly for EL claims where there is no other obvious source of exposure outside of the workplace.

Another impact of the COVID-19 pandemic was the widespread introduction of a communicable disease exclusion in Public Liability policies, the terms of which would likely extend to TB. This raises the prospect of insurers declining coverage in PL claims, leaving Defendants to self-fund the defence of the claim, and directly liable to meet any damages and third-party costs.

Clyde & Co are specialists in dealing with Disease claims, and we closely monitor developments around related topics. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Edward Sainsbury or any of our Occupational Disease and Legacy Claims team.