Shaikh Abdul Rehman & Ors v Secretary of State for Health and Social Care & Ors

Claims for disease-related injury must ordinarily be proved on the balance of probabilities by showing that the defendant’s breach caused the disease. The Bonnington Castings material-contribution principle requires proof that culpable exposure actually contributed to the injury; an increased risk of infection alone is insufficient. The exceptional Fairchild approach applies only where it is inherently impossible, as a matter of science, to identify how the injury was caused. It is not a fallback for claims facing evidential difficulty. Covid-19 infection claims were therefore unsuitable for either exception where the claimants could not show that tortious viral particles caused or contributed to the infection.

The judgment concerned applications in 23 claims arising from Covid-19 deaths in care and nursing homes during the first wave of the pandemic. The claimants alleged that government discharge and admissions policies, and inadequate precautions by care-home defendants, caused the deceased to contract Covid-19. The claims relied on material contribution under Bonnington Castings v Wardlaw and material increase in risk under Fairchild v Glenhaven Funeral Services Ltd. The defendants applied to strike out the Covid-19 claims or obtain summary judgment under CPR rules 3.4(2)(a) and 24.3. The central issues were whether either causation exception could apply where the claimants could not identify the source of infection.

1. Outcome. The Covid-19 elements of the claims were struck out and/or summary judgment was entered for the defendants. Counsel were invited to submit an order reflecting the decision.
2. The ordinary rule in disease cases is that the claimant must prove, on the balance of probabilities, that the defendant’s tortious conduct caused the damage. The Bonnington Castings exception applies where culpable and non-culpable exposures cumulatively cause the disease, but the culpable exposure must actually contribute to the injury.
3. Even assuming Covid-19 was a cumulative, dose-related condition, the claimants’ case failed because they accepted that they could not prove that “guilty” viral particles caused or partly caused the disease. An increased environmental viral load, or an increased risk of infection, was distinct from actual contribution to the injury. Bonnington Castings, Bailey v MOD, Williams v Bermuda Hospitals Board and Holmes v Poeton Holdings Ltd were materially different because they involved actual contribution to injury.
4. The Fairchild exception is confined by the conditions stated by Lord Rodger and modified in Barker v Corus UK Ltd. The claimant must show, among other matters, that it was inherently impossible to prove how the injury was caused, that the defendant created a material risk to the claimant, that the conduct was capable of causing the injury, and that the injury resulted from the relevant kind of risk.
5. Covid-19 claims did not fall within that enclave. Their difficulty was lack of evidence in individual cases, rather than inherent scientific impossibility affecting the class of claims. Covid-19 claims could be proved on ordinary principles, as illustrated by Edwards v 2 Sisters Food Group Ltd. Extending Fairchild would risk liability based only on a non-negligible increase in circulating virus, without proof that the defendant caused the particular infection.
6. The strike-out and summary-judgment applications did not require a mini-trial. The governing causation principles were settled, and the claims were pleaded in unequivocal terms showing that they were bound to fail on the asserted bases.

First-instance decision. No prior appellate decision in the same proceedings is stated in the judgment.