Using The Law To Enforce
Better Infection Controls

Here are some avenues for legal action under Australian law to challenge the lack of infection control in health care, starting with the most modest/least risk. The risk arises from the general rule that if you sue someone and lose, you will be ordered to pay their legal costs as well as your own. This could be tens or even hundreds of thousands of dollars. An important benefit of any litigation would be that the opponent would be forced to defend their position, e.g. to prove that their policy is not unreasonable or out of step with best practice. This is general information obtained from a NSW solicitor by Covid Safe Schools and is not legal advice applicable to any particular circumstance.

1. Complaint to SafeWork in your State

Every State and Territory has a work health and safety act of some sort and a workplace safety authority responsible for enforcement. The Act says that workers can refuse to attend a workplace if they have a reasonable concern that it is unsafe. When COVID first came to Australia, a Qantas cleaner who was the WHS representative told ground staff they told his co-workers they did not have to clean planes from China if they felt it was unsafe. He was fired, and successfully sued Qantas.

The Act also protects members of the public at the workplace. A hospital, for example, is a workplace and is required to do everything “reasonably practicable” to make the workplace safe for visitors, patients and staff. Schools are also a workplace. In 2023 a parent of a child at a NSW school complained to SafeWork that the school was allowing teachers to attend school COVID positive if they wore a surgical mask. SafeWork ruled that this was a safety breach because this was not “everything reasonably practicable” to prevent injury. The fact that they were following government guidelines was no excuse.

To make a complaint, see your State or Territory SafeWork or equivalent website.

2. Consumer claim in a State tribunal

The Australian Consumer Law s 60 Guarantee as to due care and skill –
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

This applies only to services that are provided “in trade or commerce”, which more or less excludes free services such as public hospitals. It would apply if, for example, you go to a private hospital, doctor or dentist and they fail to take reasonable steps to prevent infection. The strongest case would be where injury has occurred (catch COVID) however even if it just causes distress it’s a failure to render services with due care and skill.

These claims can be prosecuted in the State Administrative tribunals, which has the advantage that the losing party is usually not ordered to pay the winning party’s legal costs.

A potentially important attraction of a consumer claim is that anyone involved in the contravention can be joined as a defendant, e.g. the policy makers etc. It would be possible to call CHOs etc as witnesses or join them as defendants.

3. Disability Discrimination complaint

The States have various anti-discrimination acts which prohibit discrimination on the ground of disability. Disability is defined very broadly, unlike the NDIS definition which is very narrow. Most chronic conditions would qualify as a disability, e.g. diabetes, cancer, heart disease or asthma etc.

Disability discrimination would arise if, say, your doctor required a wheelchair user to go upstairs to be treated, because a person without that disability would be able to get upstairs but you can’t. You could argue that the lack of infection control presents a greater risk to you than others, due to your disability, that you have been discriminated against by being required to receive healthcare in a way that is far more risky to you than to others without your disability, and that the provider has failed to make reasonable adjustments to their service to make it safe for you.

Before going to court you must first make a complaint to your State anti-discrimination commissioner or similar, and attempt conciliation. If that fails to resolve the complaint, you can apply to a State tribunal. Generally, if you lose in the Tribunal you will not be ordered to pay the other party’s legal costs. If you win, you may get damages.

Last year I acted for a mother who has type 1 diabetes who claimed disability discrimination because her child’s school refused to let her keep her son home to reduce her risk of catching COVID. The NSW Department of Education was found to have discriminated against her and was ordered to pay compensation for hurt and humiliation. The full case is here.

As well as the Acts that can be heard in State tribunals, there is also a Commonwealth Disability Discrimination Act. Complaints must first be made to the Human Rights and Equal Opportunity Commission who will attempt conciliation and if that fails, you can take the complaint to the Federal Court. If you lose there, you could be ordered to pay the other party’s (significant) legal costs.

4. Negligence claim

If you have been injured by a health care provider who failed to do something they ought to have done to keep you safe, you can sue for negligence. This is difficult and costly, and if you lose you will be ordered to pay the other party’s costs as well. If many people are injured by the same negligence they can join in a class action, where a large number of plaintiffs can bring a claim with big enough damages to make it worth while for a litigation funder to underwrite the costs. There are law firms that specialise in this but they are very selective as they stand to lose millions of dollars if it fails.

5. Challenge the Minister by way of injunction

There is a little-used concept in law called a Quia Timet Injunction. This is a court order stopping potential harm before it happens, as opposed to a negligence claim which can only be brought once the harm has occurred.

This concept was used in a landmark case in 2021, where a group of children sought an injunction to stop the Minister for the Environment authorising a coal mine extension on the ground that it would cause harm through climate change. Watch the judgment being delivered in this excellent 10 minute video

Anyone who feels they cannot safely access health care could ask the court to order that hospitals, for example, implement suitable PPE policies, test and isolate COVID positive patients, etc. to reduce the risk of infection.

Such a case would be costly however it is possible to get a “costs capping” order if the case has significant public good. It could still cost tens of thousands of dollars.

Peter Vogel
Solicitor
25 Jan 2024