In the case of London International Exhibition Centre Plc v Royal & Sun Alliance Insurance Plc, the High Court has held the causation test relevant to "at the premises" wording is the same as that for other radius clauses considered in the FCA test case. Many policyholders with similarly worded policies will now be wondering how they can show that there was in fact a case of COVID-19 "at their premises".
In this scenario the burden is on the policyholder to prove this on the balance of probability, so they will need to be able to adduce some form of evidence.
Where the policy refers to a "notifiable infectious disease", the Court found that COVID-19 qualifies, but only after 6.15pm on 5 March 2020, when it was officially designated as a notifiable disease.
Mr Justice Jacobs also found that "notifiable infectious disease ... suffered by any visitor or employee" simply meant that the person had to have contracted Covid-19. The person did not need to have displayed symptoms.
How do you evidence someone was at a premises with a notifiable infectious disease?
This will vary from case to case. The policyholder only needs to establish that there was one person with the disease at the premises. That person might only have been there very briefly.
The starting point is to identify the people who will have physically attended the premises. That will include not just staff or employees but potentially delivery people, customers and a host of others. This will be easier in some cases than others but, for example, restaurants may be able to consult records of who made bookings with them, or businesses may have copies of old staff rotas.
If a policyholder can identify a particular person or persons who attended the premises after 6.15pm on 5 March 2020, who tested positive for or was otherwise diagnosed with COVID-19, either within 14 days in advance of, or within 14 days following their attendance at the premises, given the incubation period and duration of the disease we would expect that to be sufficient evidence that they had the disease whilst at the premises. Insurers may of course want to see evidence of that diagnosis or positive test, which may be difficult to obtain, but the more detail that can be provided to corroborate such a claim, the better. Potential examples could include:
- a statement from the medical professional who diagnosed the disease,
- a copy of a test result,
- a picture taken on that person's mobile phone of a positive test at the time, or
- copies of contemporaneous messages from that person referring to having tested positive.
Given the wide range of symptoms associated with COVID-19, the mere fact that someone can be identified who had symptoms at the time but was not tested or diagnosed is in itself unlikely to satisfy the requirement of proving, on the balance of probability, that they had the disease at the time. However, the number of people that are potentially concerned and the surrounding facts will be a relevant consideration. For example, there may be cases where there were a number of people at the premises who were not tested but can prove they had COVID-19 symptoms at the time. If they could perhaps also prove that those they lived or worked in close proximity to people who were tested and found to be positive at or around the same time as they had symptoms, then the likelihood that they had the disease themselves would be objectively higher. Whether that likelihood would be accepted by insurers, the Court or the Ombudsman to be sufficient to meet the requirement of the balance of probability (or greater than 50%) will depend on the specific facts and nature of the evidence.
Given the difficulties in establishing who had the disease, the FCA produced guidance for insurers as to how policyholders could evidence the likelihood of there having been a case of COVID-19 within a particular radius of their premises in the absence of direct evidence. This was based upon models produced by Imperial College which looked to extrapolate the number of known cases of the disease in a particular area at a particular time. These estimated how many cases there were likely to have actually been within that radius, as there were many more cases than were actually confirmed. This was particularly the case at the start of the pandemic when testing was not widespread and reflects the fact that many people who had the disease experienced very mild symptoms or none at all.
The model and the COVID-19 Calculator were only designed to look at a minimum radius of one kilometre, so, absent very large premises, would not directly provide an answer as to the likelihood of cases at the premises themselves. They may still be of assistance in the case of premises with a large volume of people passing through them. The combination of evidence (from the calculation tool) of there having been a high number of cases within one kilometre of the premises at the same time as there having been a large number of people attending the premises may, in some cases, be sufficient to lead to a conclusion, on the balance of probability, that there would have been a case at the premises at that time.
There will also be other types of evidence which policyholders may be able to produce based on their particular circumstances. We have assisted many policyholders across a wide range of circumstances with this over the last two years. If you are considering an issue or claim related to a potential COVID-19 case on premises, please contact us to discuss relevant options for evidencing this.