Key Points:
Like road safety, you can’t really fix pandemic threats with just one approach to risk mitigation.
90 years ago, a tugboat owner was held liable for not using a radio to receive warning of a storm despite not violating any industry standards
New research shows that it is not good enough to just use masks or just air purifiers to protect staff: both are necessary, along with other measures.
Legal consequences may flow from inaction by employers and others in authority who persist with views that ignore that the main threat from Covid is airborne.
New Australian research adds further evidence that more needs to be done to protect healthcare workers from aerosol spread. A Monash University study [1] has found that PPE – including a fit-tested N95 mask – used in conjunction with a HEPA filtration system, offer the best protection to healthcare workers against viral aerosol exposure.
Air filtration and PPE work together. In a controlled setting, either of them used in isolation still results in significant contamination of the healthcare worker, according to lead author Dr Simon Joosten. Senior management at both Monash Health and Epworth Health have taken immediate action on the data by purchasing a number of HEPA filters for hospital wards to reduce risk.
Clearly the world is not risk free and businesses cannot be expected to operate in a totally risk free environment. It is therefore a question of judgement: weighing risks, rewards and available safety measures. Judgements are made by forepersons, supervisors and managers every day but ultimately it is the Board of a company which bears the responsibility for the workplace it provides.
When it comes to safety devices part of the judgement revolves around availability – including price as well as physical availability. It is very much a matter for individual assessment as to whether the cost, difficulty of obtaining, ease (or otherwise) of use, increase in protection delivered and myriad other factors add up to something which ought to be deployed.
When work safety legislation was being codified in the 1980s it was generally prescriptive – requiring a stairway be at least Xcm wide for instance. The tendency these days is to be less prescriptive and state that it must be “appropriate”. This has obvious benefits for an employer in that a staircase which fails the width test by a single centimetre is no longer a problem per se. But in equal measure it presents a challenge to employers: no longer can they sit back content to comply with standards which may be years or even decades out of date. Those responsible for placing workers at risk must be constantly alert for changes in the workforce and in the safety equipment available.
Participants in an industry tend to face similar problems for obvious reasons and it can be argued that something accepted throughout an industry passes the necessary tests. Crucially, however, what is common in the industry cannot be a complete answer – there may in fact be no safety in numbers; the fact that no one is taking advantage of available technology may be no defence whatsoever if a judge rules, in effect, that the entire industry is indolent and ignoring something which provides a sizeable benefit and is reasonably easy to obtain.
One of the early cases which still illustrates the point very neatly is the 1928 US TJ Hooper Case. In that case a tugboat was towing two barges near New York and the tug and both barges sank in a storm. The owner of the tugboat was sued for negligence for the loss of the cargo. In particular, the suit claimed the tugboat should have had radio receivers on board and thus been able to learn of and then avoid the storm.
In their defence, the tugboat owners made the point that it was not customary in that industry to have radios on board and therefore that they had not violated any industry standards. The court found that owners of the tugboat were indeed negligent; Judge Learned Hand stated in his judgement that “there are precautions so imperative that even their universal disregard will not excuse their omission”.
When it comes to directors: The duty at law is to ‘implement and monitor systems which ensure safe working conditions in their workplaces as far as reasonably practical’.
More specifically, a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable:
the provision and maintenance of a work environment without risks to health and safety;
the provision and maintenance of safe plant and structures;
the provision and maintenance of safe systems of work;
the safe use, handling and storage of plant, structures and substances;
the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities;
the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
If a PCBU has a duty or obligation under the Work Health and Safety Act 2011 (Cth) an officer (which includes a director) of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation. ‘Due diligence’ includes taking reasonable steps:
to acquire and keep up-to-date knowledge of work health and safety matters;
to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations;
to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking;
to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
to verify the provision and use of the resources and processes referred to above.
The directors must therefore satisfy themselves that the resources the business has do ensure that risks to health and safety are eliminated, so far as practical.
Technology raises the bar on conduct. It can be used to help us against other forces of nature such as Cytokine Storms which are the body’s overreaction to a Covid infection. But before that, it can help us avoid catching Covid in the first place, for instance by use of CO2 monitoring devices.
What most people don’t realise is that the principal mode by which people are infected is through exposure to respiratory particles carrying the infectious virus.
“It is possible for people to be infected through contact with contaminated surfaces or objects (fomites), but the risk is generally considered to be low. Each contact with a contaminated surface has less than a 1 in 10,000 chance of causing an infection” [2]
That means that you generally catch Covid by sharing air, not objects such as equipment. Lung to lung transfer is the virus’s favoured path.
As CO2 is exhaled breath, high amounts of CO2 indicate that there is potentially infective air at that location. Hence CO2 monitors are mandatory in Belgian businesses. They are required to display a carbon dioxide monitor in a location visible to the public, so customers can check whether the air is at a safe level. [3]
In a piece in The Conversation: “Schools need to know classrooms’ air quality to protect against COVID. But governments aren’t measuring it properly”, Geoff Hanmer, from the University of Technology Sydney highlights some government failings.
“Without CO2 monitors and with a flawed ventilation model, there is no evidence that all school spaces in NSW are safe. Either the government needs to promptly provide every school with a CO2 monitor or parent and community groups should buy their own.” [4]
With children’s health at stake, parents are taking actions into their own hands and ignoring the flawed Government advice by installing their own CO2 monitoring, and air purification equipment.
While re-opened schools have had many Covid cases, Sydney’s City Gym in October 2021 had 15+ cases a few weeks after re-opening despite diligent efforts to clean the gym equipment. The risk management measures on their website seemed to overlook ventilation, CO2 monitoring or air purification.
Press coverage of the outbreak failed to pick up on this mis-directed effort. Instead it focussed on continued wasted measures of a 1 in 10,000 risk by touching contaminated surfaces vs the very real airborne particle threat.
One week after the announcement of the outbreak, masks were still missing on gym clients, and windows remained close.
The problem is that no one measure is enough. Instead of over relying on “the best” defence, a continuum of prevention is needed. Unless they are all being done people are vulnerable to the virus, and litigation against those responsible may follow.
If you do get Covid, use of an Oximeter to monitor blood oxygen levels at home can make a 50% difference to survival, according to a South African study of 36,000 patients. That’s why Singapore set out to distribute one to every home in July 2021, and Royal Melbourne Hospital bought 4,000 a few months later for their hospital at home service.
This means that any health service with does not include use of oxygen monitoring in Covid patients at home is also remiss. An oximeter is an inexpensive device that can keep people out of ICUs because it alerts the patient to a serious deterioration in their health. This allows them to get to hospital early and avoid Cytokine Storms when the body’s inflammatory response to the virus escalates.
But not all hospitals are equal. Here’s another example of the misrepresentation of the word “SAFE.” More than 10,000 patients caught Covid-19 in this US hospital. Some never made it out.
The wife of one patient who died from Covid after being admitted for a hip infection, explored suing. However, an attorney told her it would be nearly impossible to win such a case. A 2021 State Law requires that proof of "at least gross negligence" must prevail in court.
“A KHN review of work-safety records, medical literature and interviews with staff at high-spread hospitals points to why the virus took hold: Hospital leaders were slow to appreciate its airborne nature, which made coughing patients hazardous to roommates and staff members, who often wore less-protective surgical masks instead of N95s. Hospitals failed to test every admitted patient, enabled by CDC guidance that leaves such testing to the "discretion of the facility." Management often failed to inform workers when they'd been exposed to covid and so were at risk of spreading it themselves.” [5]
One is tempted to suggest that there might have been gross negligence.
Of course you could argue that if you were aware of the risks, and you knew that managing those risks included monitoring the air quality, then a staff member or customer might make a claim.
Prevention is always preferable and the challenge is education. If you can’t directly see the problem, then from your viewpoint it is not a problem. Making CO2 monitors mandatory would be a good start to bringing air flow problems into view. Road safety involves multiple measures, none of which should be ignored. Speed signs, speedometers, and speed cameras all rely on making visible numbers that have significance.
The difference in the case of the spread of Covid-19 is that the consequences of ignorance are more closely and graphically linked to the omission of using a simple technology to help you see the problem. Out of sight means out of mind but there's no ignoring that the results can be deadly.
As devices such as air purifiers and SafeTape get rolled out, a workplace which does not make use of them puts itself at risk of prosecution or a civil suit if an accident which could have been avoided occurs. Sadly, legal other consequences may need to be felt as it seems too many have become desensitised to the person suffering their negligence, or worse, is causing.
The Authors:
James FitzSimons is an experienced technology lawyer who is working with a number of startups, including SafTape Pte Ltd which has developed an IoT device which is designed to greatly improve safety conditions in a wide variety of workplaces.
Simon Lewis is a lapsed lawyer who moved from Legal Tech to join dots in Health Tech & Research.
About SafeTape:
The SafeTape invention allows secure work areas to be set up quickly and easily and re-set as needed. Uses include:
Keeping secure the area where the crane is working overhead on a container ship.
Cordoning off the cab of a truck or the engine of a train to ensure that no one starts the engine or moves the vehicle whilst people are performing maintenance on another part of the vehicle;
Keeping workers away from dangerous areas in a bulding site or a mine;
And many many more.
The devices have a physical barrier to alert people to the line being guarded and a one-sided beam which, if broken, sets off alarms. A key feature is that anybody affected by the breach is instantly alerted to the breach. Thus the engineer working under the truck or in the middle of a locomotive engine is instantly alerted and can take appropriate evasive action and the driver of the crane above the container ship can come to an instant halt. It is an IoT device and a by-product therefore is that management can also be notified of any breach and keep track of adherence to safety measures on the sites under their control.