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Events, Covid-19 and Your Duty of Care

As a general rule hosts of conferences, meetings and events have not been overly concerned that they may have people attending their events with a multitude of afflictions including the common cold, sore throats, coughs and even influenza.  It has been a known and to a large extent accepted fact that when people meet in a confined space germs travel.  However, to date that has not resulted in lawsuits and claims of negligence, simply an acceptance that this is part of being with other people and having no idea what they may or may not be sharing with you from a health perspective.  Compliance with general workplace health and safety laws has been deemed sufficient protection.  The simple question is does this and will this level of compliance carry over to Covid-19 infections where the possible consequences may be far greater?

By definition in NSW and similarly in other states of Australia a duty of care exists when a person or entity has a responsibility to take care to ensure the safety and wellbeing of another person or entity who is likely to be affected by their conduct. Where a duty of care is owed but not fulfilled, the person or entity owing the duty of care is said to have been negligent.

If the possibility that a duty of care responsibility might be breached by “provable” transmission of Covid-19 at a meeting or event which results in serious illness or even death, what protection should organisers consider to mitigate this risk? 

In determining whether a reasonable person would have taken precautions against a risk of harm, courts consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.

Ultimately, following the guidelines mandated by Governments (Federal and State) is the best protection as compliance should enable organisers to stand behind these when defending any accusation of breaching a duty of care.  So, being aware of and complying as best possible with any mandated requirements will be paramount when ensuring you as an organiser have taken every possible precaution. 

In addition, an excellent article authored by David Lutz, out of the USA recommended organisers respond adequately to four risk questions when considering Covid-19 risks:

  • Will our preventative measures align with health / government authority guidelines or will we invest in additional precautions – need to balance up the positives from adding extra layers of protection against the costs and inconveniences?
  • What guidelines or policies should we put in place for our staff and suppliers?  Can we force them to enforce guidelines and what proof do we need that they have done this?
  • What should be included in our crisis planning? How do we deal with non-adherence to rules by attendees?  What is our communication plan for dealing with a crisis during the event?
  • How transparent will / should we be?  If an attendee reports a positive Covid test during or shortly after the event, who will communicate this (and how) to other attendees?  What are the implications for your brand for over- or under-communicating?

Two further considerations of importance in these considerations:

  • Insurance – what / who is likely to be covered.  Organisers (assuming Associations) need to ensure they have standard Directors and Officers insurance in place.  This should protect them personally if they can show they have taken reasonable steps to avoid breaching their duty of care.  It is unlikely however that any cost-effective insurance will be available to cover claims related to infectious diseases for some considerable time so you should not expect this as a means to minimise risk.
  • Disclaimers – whilst not always defensible in a court of law, particularly where negligence can be proven, it is probably worth adding a disclaimer to every attendee’s registration along the lines of:

I acknowledge that the Covid 19 pandemic presents a health risk to myself and other participants at this conference. In the circumstances, I agree that at the time of my attending the conference I do not have any Covid symptoms, and I am fully vaccinated against Covid. I acknowledge that, although the host of this conference is taken the required steps to try and ensure that Covid is not spread at this conference, they are not able to guarantee that this will not occur and I agree that should I get infected with Covid at the conference I will not hold the host liable in any way for this and waive my right to make any claim against the host for any losses suffered by me due to this. Finally, documentation of your risk management plan which details the actions you have taken to comply with authorisations and mitigate risk will be an ongoing necessity to avoid future court appearances.  In addition, documentation of any on site breaches of rules and how such breaches have ben dealt with will also be necessary to reduce risk.

To request your Events Duty of Care template, please email lynne@theassociationspecialists.com.au