A judge has declined to decide whether NHS trusts which relied on ‘negligent’ advice from NHS England during the pandemic are liable for frontline healthcare workers’ long Covid.

Senior Master Cook, sitting in the High Court, was asked tor resolve the issue in a case management hearing held as part of the Covid healthcare workers litigation. 

Aproximately 284 claimants - split into two cohorts represented by GA Solicitors, Bond Turner and others - almost all suffer from long Covid which the court heard ‘has had a devastating impact on their lives and livelihoods’.

They allege that they contracted Covid-19 in the course of their employment and by virtue of their employers’ breach of duty, which is denied. 

This week, sitting in Shane Farnham & Ors v East of England Ambulance Service, Cook said ‘a very clear legal issue’ had been identified in the GA cohort claims which he had been asked to resolve. The issue was: ‘Does the principle of non-delegable duty fix an NHS trust employer with liability in circumstances where it reasonably relied on national infection control advice provided by NHS England/Public Health England, and that expert advice is subsequently found to be negligently wrong?’

The claimants argue NHS Trusts are not entitled to rely on third party advice and guidance that was negligently provided and adds Public Health England/Wales and the trusts are all emanations of the Department of Health and Social Care and therefore they are not separate entities. 

But Cook said it was ‘too early’ to resolve the issue and pointed out ‘significant costs’ would be incurred in so doing.

‘The actual factual circumstances surrounding the formulation and promulgation of the advice from the central authorities remain unclear’, the judge added. ‘In this regard the conclusions of Module 3 of the Covid-19 Inquiry will be crucially important and have the potential to impact greatly on the way in which these cases are put and responded to.’

A directions hearing is due to be held in summer next year.