COVID-19 and Changes To the Legal World
What changes will COVID-19 bring about to the legal world: perhaps more video conferencing and changes to law of “causation” in tort
The ongoing COVID-19 pandemic will unquestionably create lasting changes in many fields. Our economy, social life, and political world will no doubt be influenced by COVID-19 for years and perhaps decades to come.
What about the law? How will our legal world be shaped by the pandemic and what might be COVID-19’s lasting impacts.
Procedurally, COVID-19 will, we believe, force legal systems to confront their use of the digital world to create more efficient and timely justice. The legal system is inherently conservative and has been slow to adopt new technology and to innovate a more streamlined procedure. The current pandemic may indeed the catalyst necessary to force the Courts to adopt some changes. We may see an expansion in trials and other Court procedures incorporating video conferencing, and this may have long-term benefits in timeliness, efficiency and reduced cost.
What about substantive common law (the rules that govern us). Will legal historians in generations to come point to COVID-19 as a turning point for some of our substantive laws. I expect that the law of “causation” in tort might undergo a revision as a result of strains placed upon existing principles by cases involving liability for COVID-19 infection.
To date, we have seen ambitious lawsuits brought against the government of China for negligence in allowing COVID-19 to spread, and no doubt we will see other litigation, including lawsuits involving allegations of negligence in COVID-19 outbreaks in care facilities and prisons. This will put existing “causation” principles to the test. At present, in Canadian law, the Courts have adopted a “but for” test. “But for” a given event (such as a car accident) would have a specific harm (such as a sore back) have occurred? The “but for” test requires legal proof of the chain of events leading to the harm, including evidence that establishes how the harm would not have occurred “but for” the wrongful conduct.
The existing “but for” test of causation could prove unworkable in the case of COVID-19 harms. How can a party prove that “but for” any given conduct they would not have contracted COVID-19 given all the uncertainties surrounding the spread of the virus. Academic lawyers have from time to time argued in favour of a theory of “probabilistic” causation. This legal theory might allow for causation to be established on a statistical basis or on a weighing of statistical outcomes. A litigant may not be able to prove that “but for” a certain act of negligence (such as allowing infected care workers into a care home) they would have contracted COVID-19, but they may be able to establish statistically that the negligence conduct contributed to their risk. If they can prove that the wrongdoing played a role in increasing the likelihood of their contracting the disease, this might be sufficient to establish a claim for damages. Will “probabilistic” causation be sufficient in a post-COVID legal system to establish damages in the law of tort? Time will tell. Whatever occurs, I believe we can be confident that our legal system and laws themselves will not escape COVID untouched. COVID-19 will play a role in shaping our law and legal system just as it will play a role shaping the rest of our world.