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What is the Potential Liability under Law for Escaped Viruses?

Views | 2 May 2020

 

Illustration of law and justice.
Illustration of law and justice. Photo by Bill Oxford on Unsplash/NOWJAKARTA

As an old insurance hand I had a sudden thought, triggered by this recent spate of accusations of responsibility for the release of the virus between various countries, which shows no sign of going away. What area of law would this kind of incident fall under, and how do we assess who is guilty and why?

Bingo!

I got it, dredging up my memories of the classes I took for my ACII (Associate of the Chartered Insurance Institute) nearly fifty years ago, I remembered the cases related to escaped livestock, great stories of escaped rampant but non-pedigree bulls ravaging the neighbour’s very pedigree cows causing huge hilarity among the onlookers and serious financial damage to the owner of the cows .Then there were the tales of escaped horses galloping through villages causing panic, property damage and sometimes death of innocent citizens. Perfect, this is certainly the starting point for the insurance law on escaped viruses! 

Although my experience is in British Case law I thought given the current accusations coming from the left hand side of the Atlantic, I looked up the US side of the law and found this excellent extract from the Michigan Insurance Association’s newsletter which fits our purpose exactly. It was talking about livestock, cows, bulls, sheep and horses, but I have taken the liberty of changing the references to livestock and animals to viruses and their associated environments such as farms to biological development laboratories. Otherwise, it is verbatim!

“Increased urbanization puts biological development laboratories (original was livestock farms, so you get the idea…!) closer than ever to highways and population centers, heightening the risk of accidents and resulting liabilities. Consequently, it is important to understand Michigan law regarding liabilities for damages caused by loose Viruses (original was…livestock). Previously, this newsletter discussed liabilities for property damage caused by viruses and bacteria running at large, which is governed by statute MCL § 443.11, et seq.. This article addresses liabilities for personal injuries suffered by people other than employees of the owner or keeper. Liabilities for injuries to employees will be discussed in an upcoming newsletter (since they are covered by separate legislation and Employer’s liability insurance).

You can also listen to the audio version of this article from our brand new NOW! Jakarta Podcast.

In Michigan, the issue of liability for injuries to a person (other than the owner or keeper’s employee) caused by a virus running at large is generally determined based on the common law theory of negligence. This legal standard essentially requires the injured person to prove that the virus’s owner or keeper acted unreasonably in causing the virus to escape.

In an attempt to prove negligence, the injured party could present evidence based on the specific facts and circumstances of the accident. Examples of negligence claims can include, but are not limited to, the following:

  • Poorly maintained, or damaged facilities, fencing and/or enclosures from which the virus escaped. (here we can change to specially constructed buildings and airtight enclosures)
  • Facilities, fencing and/or enclosures that, although in good repair, were deficient in some other way, e.g. walls of inadequate imperviousnes, improper aircontrol and access systems used to secure laboratory (original barn) doors, and/or enclosures made of improper materials which allowed the virus to escape.
  • Improperly or inadequately trained staff that failed to properly handle or restrain the virus. Examples of negligent conduct can include access channels left open, use of improper equipment, employing unqualified and inexperienced individuals, failure to regularly inspect the facility, just to name a few.
  • The virus’ owner or keeper knew of past escapes but failed to take appropriate corrective action to prevent future escapes."

Well there are certainly things there to think about. A virus certainly is on the loose, but where exactly did it come from, unlike cattle viruses have no branding…or do they? Some Doctors are now analyzing the make up of the virus and semm to be making progess at its possible origin! That will start this ball rolling very quickly. But do the poor owners of escaped viruses have any defence? 

"Depending on the facts and law, owners of loose viruses have a few possible defenses that can include:

  • The virus WAS properly restrained, and the owner or keeper was NOT negligent. Proving this defense can sometimes require testimony from an "expert" knowledgeable of keeping and/or handling the particular virus.
  • The virus owner or keeper played no role in its escape because someone else, such as a vandal or a reckless driver,or a visiting delegation of some description… damaged or tampered with the enclosure (original fence) allowing the virus to escape.
  • The incident was caused, at least in part, by the injured person’s own negligence. (This one I don’t think will fly, we may wander over fields to say hello to beautiful horses and calm grazing cows leaving the gate open or wearing an all red outfit in the field of excited bulls but no-one is going to allow a nasty virus to escape on purpose, but wait a second, we can't see them or even know we are infected so this is a possibility…!)
  • Virus producers can take advantage of several risk management options to help reduce potential liabilities. Good day-to-day management practices and maintenance programs can go a long way to prevent accidents and liabilities. But because accidents can happen at even well-run, well-maintained facilities, proper liability insurance is extremely important."

I wonder if they have this, whoever THEY are? 

Additionally, for facilities that allow people to enter the premises, a well-drafted release of liability can potentially be a powerful defense. These documents are most commonly utilized by horse farms, but other farms (including bacterial and virus developing laboratories?) can also require visitors to execute a release before visiting or touring its facility.

So to all the parties intending international litigation look no further than the old farm laws to guide your path, the traditional ways of Lloyd’s of London can still help. And by the way if the “farmer" is identified and subsequently found to be negligent that does open up questions of compensation, at country, corporate and personal level which could indeed make the whole issue even more complicated. Can you imagine the personal injury, financial loss and business interruption suits that will emerge? That will be round three of the Corona Nightmare. First a health horror, then an economic meltdown and finally legal warfare.

Good luck to all!