In the recent Judgment of Edwards and ors v 2 Sisters Food Group Limited [2025] EWHC 1312 (KB), Sir Peter Lane considered causation in work-related COVID-19 claims and the courts’ approach to a summary judgment application where further evidence may yet be adduced by the respondent. This Judgment is of significance for anyone dealing with claims for occupational exposure to COVID-19.

Background to the appeal

The defendant applied for reverse summary judgment at an early stage, contending that even if the claimants could establish a breach of duty, they would be unable to establish that the breach caused or materially contributed to their injuries; further, that there was no real prospect of the claimants successfully arguing that the narrow exception in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 applied to their claims.

The claim arose from the claimants’ alleged contraction of COVID-19 (an indivisible injury) in June 2020 following an outbreak of the virus at the defendant’s factory where they worked. Breach and causation remained in issue.

The claimants asserted that they intended to obtain expert occupational hygiene evidence to address causation following disclosure and exchange of witness statements, and that obtaining such report prior to this would have been premature and wasteful of costs. Although not specifically pleaded, the claimants also asserted that causation may be proven on a ‘but for’ basis in circumstances where a claimant had lived alone, travelled to work alone and not gone out at all, such that it could be proved on balance of probabilities that they contracted COVID-19 at work.

First instance decision

HHJ Owens entered reverse summary judgment. In doing so, she made significant findings relating to the prevalence of COVID-19 in the community and criticised the claimants’ evidence on causation and their failure to plead facts relevant to their ‘but for’ causation argument [15]-[20]. She accepted the defendant’s submission that the claimants would be unable to establish causation by reliance upon the Fairchild exception [19]. She concluded that granting summary judgment was in accordance with the overriding objective in that she was dealing with the cases justly and at proportionate cost, given their relatively low value [23].

The claimants sought permission to appeal.

Grounds of appeal

Pepperall J granted permission to appeal on the claimants’ grounds (2), (3) and (4), namely that:

  • The Judge failed to take into account fully or at all the fact that the defendant had not provided disclosure or witness evidence and that it was accordingly premature for the claimants to obtain expert evidence, which would be reliant on such documentary and witness evidence.
  • The Judge failed to appreciate or have regard to the importance of such documentary, witness or expert evidence as to causation.
  • The Judge’s decision was unjust in that it referred to the need to deal with claims at proportionate cost but also criticised the claimants for not making an application for pre-action disclosure and for not instructing an expert to opine without having the benefit of sufficient evidence to allow the expert to do so.

The appeal

It was accepted by Sir Peter that, read together, grounds (2) and (3) were concerned with whether the Judge was right to reach a decision on causation in the absence of disclosure and witness evidence [34].

The claimants argued that the Judge did not appreciate the nature of the causation case advanced by them. They asserted there was at least a realistic possibility that causation could be established on the ‘but for’ test, without the need to argue for any extension of the Fairchild principle. They asserted that the evidence yet to be adduced would go to whether they had, on balance of probabilities, contracted COVID-19 at work.

In his judgment, Sir Peter revisited the key authorities on a summary judgment application [28]-[29]. Of particular significance in this case was the principle that the question to be answered was not whether there is a clear prospect that new material will become available that is likely to give the appellants a real prospect of success but, rather, whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success (per Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Company 100 Ltd [2006] EWCA Civ 661, per Mummery LJ at [18]; Okpabi v Royal Dutch Shell PLC [2021] UKSC 3 per Lord Hamblen at [127]-[128])

Sir Peter considered the claimants’ pleaded case and found that the evidence yet to be adduced by the claimants may materially add to or alter the evidence relevant to whether the claims have a real prospect of success [31] [47]. He held that “[t]here was nothing inherently problematic in procedural terms in the approach adopted by those acting for the [claimants], so far as expert evidence was concerned….it was appropriate to await the outcome of the disclosure stage before instructing the expert because aspects of that disclosure would be relevant to the expert’s report” [43]. To that extent, Sir Peter also found a contradiction between the Judge’s categorisation of the claims as “of a relatively low value” and her criticism of the claimants for not commissioning an expert report at an early stage. He held it was proportionate to proceed as the claimants did [45].

Further, Sir Peter found that the Judge had erred in her approach to the claimants’ case on causation by looking at matters by reference to Fairchild only. The Judge’s apparent conclusion that the ‘but for’ test could not apply because of the pandemic was one that could not properly be reached within the confines of an application for summary judgment and, in saying what she did, the Judge was, in substance, making herself the expert [39].  Sir Peter posited that if the evidence were to show a relatively low level of COVID-19 in the community and a claimant whose pattern of behaviour outside work was such as to suggest limited exposure to the virus, and there was evidence of serious failings by the employer to control the spread of the virus at the claimant’s work, it would not be fanciful that ‘but for’ causation might be proved on the balance of probabilities [40].

As such, Sir Peter allowed the appeal, holding that the Judge had erred when she concluded that the claimants had no real prospect of succeeding on the claims.

However, in agreement with the comments of Pepperall J at the permission stage, Sir Peter considered the claimants “face an uphill task” in proving ‘but for’ causation [38] [49].

Further still, Sir Peter agreed with the Judge that, if the claimants had relied on the Fairchild exception alone, they would have had no real prospect of success on the claim and there would have been no other compelling reason for trial [50].

Comment

The claimants’ appeal succeeded on the narrow issue of the Judge’s failure to deal with their ‘but for’ case on causation and consider properly the evidence which they might deploy. However, the Judgment is of wider importance to work-related COVID-19 claims, with two significant points arising on causation.

First, the Judgment supports the view that, on a ‘but for’ approach, claimants in occupational COVID-19 claims are likely to encounter real difficulty in establishing causation. Scrutiny of a claimant’s potential non-tortious exposure, including by reference to the prevalence of the virus in their community, will likely be determinative of the issue. This will be fertile ground for challenge by defendants.

Secondly, the Judgment confirms that Fairchild will not come to a claimant’s aid in a claim of this nature. Such conclusion must be correct. Fairchild represented a significant departure from orthodox principles in response to the specific hurdles facing mesothelioma claimants, and the courts have since guarded against its unprincipled extension. An extension of the exception to work-related COVID-19 claims would be problematic (and arguably unjust in the extreme) in circumstances where it may have been near impossible for an employer to mitigate risk entirely.

Therefore, although the claimants in this case succeeded on their appeal, this Judgment will be much welcomed by defendants.

Jayne Adams KC represented the Defendant, 2 Sisters Food Group Limited, at first instance and on appeal.

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