With the respiratory illness on the rise, Clyde & Co warns that there may be an increase in employer’s liability and public liability claims.
The UK Health Security Agency has recently reported a marked increase in the incidence rate of tuberculosis cases in England, and the report suggests that this may be a growing trend.
In 2023, a total of 4,855 people were notified with tuberculosis in England, an increase of 11% compared with 2022 and an annual tuberculosis notification rate of 8.5 per 100,000.
England counts as a low tuberculosis incidence country below the WHO threshold of less than or equal to 10 per 100,000.
Provisional data for the first three quarters of last year, however, indicate a further 13.7% increase against the same period in 2023.
Numbers and rates are now above the levels seen before the COVID-19 pandemic and the annual increase in 2023 is the largest since 1971.
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.
There is likely to be an increase in clinical negligence claims write Edward Sainsbury and Katherine East, partner and senior associate respectively at Clyde & Co.
The two also anticipate that there may be an increase in employer’s liability and public liability claims, given tuberculosis’s strong association with immigration and socioeconomic inequality.
Struggle to establish causation
Tuberculosis is caused by bacteria of the Mycobacterium tuberculosis complex. It is spread predominantly by the respiratory route, where bacteria are aerosolised by people with pulmonary disease and are inhaled by susceptible individuals.
Sainsbury and East point out that claimants, especially those who are diagnosed with a latent tuberculosis infection, may struggle to establish causation in order to succeed in any claim. “Unlike active tuberculosis which may be definitively linked to a source of infection via genetic sequencing, there is no means of identifying when a latent tuberculosis infection was acquired,” they say.
They point to 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 tuberculosis infection may find some favour, particularly for employer’s liability claims where there is no other obvious source of exposure outside of the workplace.
It is also worth bearing in mind that 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 employer liability.
“This raises the prospect of insurers declining coverage in public liability claims, leaving defendants to self-fund the defence of the claim, and directly liable to meet any damages and third-party costs,” they warn.
