Covid claims against Secretary of State for Health and multiple care homes struck out on issue of causation
12th Jan 2026
Alexander Macpherson has successfully represented various care homes sued by the relatives of residents who died of Covid-19 in early 2020 in the first wave of the pandemic. Some 20 separate fatal claims were issued in the High Court against both the Secretary of State for Health (alleging that the advice given to care homes was negligent for not recommending the isolation of patients discharged from hospital) and against the care homes themselves making various allegations of failing to protect residents against infection. The claims have been case managed together by Master Davison. The Secretary of State and the care homes together made applications seeking a strike out/summary judgment on the basis that the claims were bound to fail on the issue of causation.
The Claimants had accepted in their pleaded claims that it was impossible for them to prove causation on a standard ‘but for’ basis. Indeed, they argued that it was precisely because the claims were not scientifically capable of being proved in a conventional way that they should be permitted to rely upon two alternative routes to proving causation:
- First of all it was contended that they could demonstrate that exposure to tortious viral particles had made a “material contribution” to the contracting of Covid-19 following the principle set out in Bonnington Castings v Wardlaw [1956] 1 AC 613, as re-affirmed in Holmes v Poeton [2023] EWCA Civ 1377.
- Secondly, it was argued that the Claimants could bring themselves within the special rule as to causation set out in Fairchild v Glenhaven [2003] 1 AC 32, on the basis that the exposure to tortious viral particles had materially increased the risk of contracting Covid-19 and that this was sufficient to enable recovery.
In a judgment handed down today by Master Davison, the court held that neither of these proposed routes to establishing causation disclosed any reasonable grounds for bringing the claims, and that the claims had no real prospect of succeeding on the issue of causation.
In relation to the material contribution argument, Master Davison was prepared to assume for the purposes of argument that Covid-19 could be deemed to be a cumulative condition (on the basis of evidence suggesting that a threshold dose of a few hundred infective particles was required in order to trigger an infection). However, he noted that the Claimants had already conceded that they were unable to demonstrate that the particles which had actually caused the infection in each case were “guilty” particles, rather than Covid particles to which the residents were exposed non-negligently. While following the exchange of evidence they might be able to demonstrate some exposure to “guilty” particles, and they might also be able to demonstrate that such exposure increased the risk of contracting Covid-19, they had effectively accepted in their pleadings that they would not be able to demonstrate that it was these “guilty” particles which were in fact responsible for the disease in any particular case. Previous cases dealing with material contribution had emphasised that there remained a burden on the claimant to show an actual contribution to the disease process (or to show that the tortious exposure “helped to produce” the disease in the words of Lord Reid in Bonnington). Here there was no prospect of the Claimants doing this.
As for the Claimants’ secondary case relying upon the Fairchild enclave, Master Davison held that the Claimants were not able to bring themselves within the exacting requirements for application of the special causation rule (as set out in Fairchild and Barker v Corus [2006] UKHL 20, and as elucidated in the context of a claim for infectious disease by Smith LJ in Sanderson v Hull [2009] PIQR P114).
In particular, the Master held these claims did not meet the first of the Fairchild requirements that it was “inherently impossible” to prove how the infections were caused on application of the normal “but for” test. This requirement was to be considered in relation to a class of qualifying claims which suffered from difficulties of proof by their nature (such as claims for asbestos-induced mesothelioma). It was not to be applied to claims which might have been capable of proof on a standard ‘but for’ basis, but which happened to have run into difficulties of proof on their particular facts. Claims for Covid-19 were capable of proof in the ordinary ‘but for’ way, as had been held in Edwards v 2 Sisters Food Group [2024] EWCC 21 and [2025] EWHC 1312 (KB). While claims for infectious disease could pose formidable evidential problems, that did not put them in an equivalent category to mesothelioma claims. The real difficulty for the Claimants in these claims was a lack of evidence as to how they contracted Covid-19, rather than there being any scientific impossibility of proving this.
Extending the Fairchild principle to claims such as these would (the Master held) result in disproportionate and manifestly unfair liabilities for the defendants. A single failure by a care-worker to wear a mask on a particular day might result in liability for all Covid infections in a particular care home, even without it being demonstrated that the failure had made any difference.
Accordingly the Master concluded that the Covid-19 claims were to be struck out and/or summary judgment entered for the Defendants.
A copy of the judgment is to be found here. Alexander Macpherson represented a number of the successful care homes and was instructed by Peter Kenworthy and Abbie Witherington of Keoghs.
