Your community organisation and COVID-19: A public liability perspective

What’s so important about community organisations?

The crucial role of community organisations in Australian society cannot be underestimated during the best of times.  After all, there are approximately 257,000 non-profit organisations operating in Australia, according to a recent review by the Australian Government’s Treasury Department.

During the current pandemic, the importance of such organisations has increased, due to the human need to develop, maintain and strengthen connections with each other. In particular, the activities of community organisations provide support to the most vulnerable in our community, such as the elderly and displaced, who are often severely impacted by the emotional and logistical challenges associated with social isolation measures.

It is crucial to the well-being of our society, therefore, that community organisations can carry out their usual activities during the pandemic.

Why is public liability insurance a significant issue?

Most community organisations are required to hold public liability insurance to host events, or as a condition of their hiring or leasing premises.

It is now common, if not universal, for community organisations to also hold public liability insurance to protect against claims from members of the public, or members of the organisation itself, arising from personal injury or property damage, caused by the activities of, or suffered on premises occupied by, the organisation.

What then are the impacts of the COVID-19 crisis on such insurance policies?

The answer to this question will depend upon the organisation, the activities it undertakes, and the restrictions in place in the relevant State or Territory.  Most importantly, it depends on the specific terms of the insurance policy itself.  For instance, some officers of community organisations may have been notified by their insurer that claims arising from infection with disease generally, or COVID-19 in particular, will not be covered by their policy.

Can you give me a scenario?

Suppose that a community organisation carried out an event, and a member of the public became infected with COVID-19 through their attendance at the event. If coverage for claims arising out of COVID-19 was specifically excluded from the policy, the organisation would potentially face significant liability for damages under common law.

It is theoretically possible that the infected person could pinpoint the contraction of the virus to a particular event, held at a particular time and place, due to recent advances in genomic sequencing. As many of us may be aware, genomic sequencing is a scientific method used to trace contacts between infected individuals, and match particular strains of a virus to confirm the source of infection.

It also seems possible that the infected person may suffer significant losses because of contracting COVID-19. Such a case might involve a young adult, who because of the debilitating infection, needed an extended period off work, as well as ongoing medical treatment and care for permanent injury to their respiratory system.

While the chance of such a scenario occurring may appear remote, it is nonetheless possible that a claim arising out of such a case would bring about significant disruption to the community organisation.  The infected person would be entitled to bring a claim for compensation for their losses, targeting any assets owned by the community organisation, or any assets of the individuals involved with the organisation.

What steps should be taken?

If liability for disease is not covered by an organisation’s public liability policy, what steps is an officer of such an organisation advised to take to protect the organisation, and the individuals involved, against such a claim?

Step 1: Best practice

The most effective way to prevent such a claim is through ensuring best practice, by mandating that the most recent restrictions imposed by authorities are adhered to in any activities the organisation conducts. The most recent public health directions issued by the Queensland Government can be found here.

Step 2: Hold a meeting

Hold a meeting between the key the officers of the organisation, with the purpose of developing a plan to ensure activities of the organisation follow best practice protocols.  Minutes should be taken of the meeting, and stored in a safe place, along with documents used to assist in the creating the plan.

Not only will the plan and the minutes provide necessary direction for the organisation, but the minutes of the meeting and documents used to assist in creating the claim plan may assist in defending any future claim.

Step 3: Prepare a plan

A COVID-19 plan should, amongst other things, set out how the organisation will:

• Ensure social distancing rules will be adhered to, including limiting numbers of persons to the maximum permissible in a particular space;
• Ensure hand cleaner is available;
• Ensure equipment is cleaned after use;
• Prohibit activities which will breach social distancing rules;
• Take down contact details and identity of all people attending, to ensure contact tracing can take place in case of an infection, and retaining those records in a safe place;
• Ensure there is no buffet or self-service food offered; and
• Ensure people are seated, at the correct distance, when consuming food or drink.

It is suggested the plan include any other topics as the organisation sees fit giving regard to the public health directions and advice of authorities.

Step 4: Delegate responsibilities

Delegate to an officer of the organisation the task of with staying up to date with changes to restrictions and to call further meetings to amend the plan as required.

Responsibility could also be delegated to individuals to ensure the terms of the plan are adhered to during activities of the organisation.

Step 5: Liaise

It is recommended that the community organisation also liaise with the owners/occupiers of any premises it uses for activities, to ensure it follows any additional requirements.

How can organisations stay informed?

Under the current Restrictions on Businesses, Activities and Undertakings Directions (No. 5) issued by Queensland’s Chief Health Officer, specific obligations are placed on persons who own, operate or control businesses, activities or undertakings. These obligations include the approval of plans, the undertaking of COVID safe checklists and the notification of public health units for indoor or outdoor events.

It also is important that a community organisation stays informed of the Directions when relevant to its specific activities.  For instance, Direction (No. 5) contemplates that while spectators watching sporting events must maintain social distancing, these rules do not apply on the field of play.

When should legal advice be obtained?

We recommend you obtain legal advice if you are an officer of a community organisations and you have been notified by their insurer that claims arising from infection with disease generally, or COVID-19 in particular, will not be covered by their policy.

If no notification has been received, then it would be wise to seek advice from your insurance broker, as to what relevant exclusions may exist.

Contact us

This article was prepared by Alex McKean, Special Counsel in our Personal Injury Team.  If you need legal advice regarding your community organisation’s public liability insurance policy, or your specific situation, we recommend you contact Alex and the Personal Injuries Team on (07) 4637 6300 at Toowoomba.  Alternatively, click here to send Alex a direct enquiry.