The Dekagram: 16th of February 2026

In this week’s Dekagram Tom Collins and Julia Brechtelsbauer consider two recent High Court decisions of Master Davison (in his twin roles as KBD Master and Admiralty Registrar). Tom was instructed in Rehman, which provides reassurance for care home defendants in Covid‑19 litigation that such claims must still satisfy the “but for” test of causation. In Happy Aras, which Julia considers, the Court highlighted that even “contemporaneous” records can be unreliable, underscoring the value of careful document scrutiny.

COVID-19 CARE HOME LITIGATION: SUCCESSFUL STRIKE OUT ON CAUSATION

Case Note: Rehman & Ors v Secretary of State for Health and Social Care & Ors [2026] EWHC 6 (KB)

Tom Collins represented Abbey Total Care Group Limited, a care home provider, in the High Court in an application to strike out a claim brought by a relative of an elderly care home resident who died during the first wave of the pandemic in early 2020. The application related to one of 23 claims brought against the Secretary of State and care and nursing home providers in which the claimants had sought to side-step orthodox “but for” causation and plead their claims on the basis of either Bonnington-style material contribution to injury or the Fairchild material increase in risk.

In a detailed written judgment, Master Davison struck out the Covid-19 element of the claims on the basis that the pleadings disclosed no reasonable grounds for bringing the claim.

Permission to appeal was granted on 28 January 2026, recognising the public importance and potential wider application of the issues in infectious disease claims. As things stand however, the judgment stands as a formidable obstacle to similar claims.

Background

The claims arose from deaths in care and nursing homes during the challenging early months of the pandemic. The principal allegations against the Secretary of State centred on the discharge policies of 19 March 2020 and 2 April 2020, which did not require asymptomatic hospital discharges to care homes to be isolated for 14 days or tested. Against the care home defendants, the claimants alleged inadequate infection prevention and control measures, including failures properly to implement isolation, PPE, and monitoring.

All 23 deceased were elderly, and the claims—brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976—were of modest value (typically below £10,000, with an aggregate of around £250,000). Separate conventional care allegations against some homes were unaffected by the applications.

Crucially, the claimants conceded from the outset that they could not prove causation on the conventional “but for” basis. They accepted that it was impossible to identify the source of the viral particles that infected each deceased resident or to show that “guilty” (negligently introduced) particles, as opposed to “innocent” (community-acquired) ones, had caused the infections.

The Claimants’ case on Causation

Faced with this evidential gap, the claimants advanced two alternative routes:

1. Material contribution to injury (Bonnington Castings v Wardlaw [1956] AC 613): arguing that negligent breaches added to the viral load in the care home environment and thereby materially contributed to the indivisible injury of infection.

• Material increase in risk (Fairchild v Glenhaven Funeral Services [2002] UKHL 22): contending that the situation fell within the narrow Fairchild exception because scientific impossibility prevented proof of which exposure caused the infection.

Expert evidence from a virologist (Dr Zuckerman) and an epidemiologist (Professor Beggs) was served in support, emphasising dose-response relationships and the heightened risk created by the policies and alleged care home failures.

The Decision

1. Material Contribution to Injury

The Court accepted, for the purposes of the applications, that Covid-19 infection may be dose-dependent: a higher viral inoculum increases the probability and potentially the severity of disease. However, he held that this did not bring the claims within Bonnington.

The critical distinction lay in proof of actual contribution to the mechanism of injury. In Bonnington, all dust—guilty and innocent—contributed to the gradual development of pneumoconiosis. Here, the claimants could not show that any negligently introduced viral particles had actually been inhaled by or infected the deceased. As the Master put it:

“The fundamental problem facing these claimants is the concessions they have made… The claimants may… show that the deceased were exposed to ‘guilty’ viral particles… But what they have stated in the clearest possible terms is that they cannot prove that it was ‘guilty’ viral particles which actually caused / partly caused their disease.”

Contributing to risk by adding virus to the environment is not the same as contributing to the injury itself. To treat the two as equivalent would effectively import Fairchild without its limiting conditions and “open the floodgates” to liability in every infectious disease case.

2. The Fairchild Enclave

The Master undertook a careful review of the post-Fairchild authorities, including Edwards v 2 Sisters Food Group (unreported, 2022), and the Supreme Court’s decision in Sienkiewicz v Greif [2011] UKSC 10. He concluded that the Fairchild exception remains tightly confined to mesothelioma and analogous industrial diseases where:

• the injury is caused by a single agent operating cumulatively;
• science cannot identify which exposure initiated the malignant process; and
• all exposures were tortious.

Covid-19 claims do not satisfy these criteria. Infection is a binary, indivisible injury caused by a ubiquitous community pathogen. The claimants’ difficulty was not true scientific impossibility (as in mesothelioma, where the mechanism of carcinogenesis remains opaque) but evidential difficulty arising from the absence of tracing data in 2020. The Master observed:

“Their difficulty is not, in truth, scientific impossibility; it is lack of evidence… I do not think that it is unjust to require Covid-19 claims to be proved in the ordinary way and on ordinary ‘but for’ principles.”

Extending Fairchild to infectious diseases would risk producing absurd and unjust outcomes: a single negligent act (e.g., a staff member briefly removing a mask) could render a defendant liable for every subsequent infection in a home, irrespective of actual transmission pathways.

Wider implications

The Court’s opening remarks—“in each of [these claims] a loved one was tragically taken away… the cases are not about money”—underscore the human tragedy behind the legal analysis. Yet this decision is a major obstacle to claims relating to contraction of Covid-19 in the first-wave, particularly against care and nursing homes, where close contact was unavoidable. Unless claimants can point to a specific, provable transmission event (e.g., via genomic sequencing, which was not widely available in spring 2020), the causation hurdle is now effectively insurmountable.

The grant of permission to appeal means this is not the last word on the issue but presently, for defendants—both the Secretary of State and care home operators/insurers—the decision provides considerable protection against a potential flood of low-value but high-volume claims. It is another example of courts policing the boundaries of the common law carefully and of the reluctance to flex the law of causation to accommodate the unique evidential challenges of a pandemic.

The full judgment is available at: Rehman & Ors v Secretary of State for Health and Social Care & Ors [2026] EWHC 6 (KB) (12 January 2026)

Tom Collins acted for Abbey Total Care Group Limited, instructed by Browne Jacobson.

About the Author

Tom Collins specialises in travel and cross-border litigation, personal injury and clinical negligence.

He is recommended in the legal directories as a leading junior and is described as possessing ‘a keen intellect, a fluent pen for pleadings, skeleton arguments and submissions.’

Tom deals increasingly with high value/catastrophic injury claims and has experience in handling group litigation, particularly with an international dimension.

A Reminder to Scrutinize “Contemporaneous” Records

In the business of accidents that happen abroad, it sometimes can be quite difficult to obtain any records at all from providers, despite tour operators making multiple requests. When they are obtained, sometimes they may show something which is rather unhelpful for your client. However, particularly in the case of cruise-ships, there can be a wealth of contemporaneous records at the parties’ disposal. When a judge is determining a factual dispute (Was the floor wet? Was the food contaminated with a pathogen? How much had the Claimant had to drink); often nothing is more persuasive than that which was written at the time. It has the attractive quality of appearing objective. However, a recent case in the Admiralty Division is a useful reminder that this is not always the case.

Unity Ship Group SA v Euroins Insurance JSC (the “Happy Aras”) [2026] EWHC 7 involved a bulk carrier the “Happy Aras”. It was on its 8^th day of a voyage charter from Reni, Ukraine to Mersi, Turkey, with a cargo of soya beans. It was grounded on the north shore of Datça peninsula in southern Turkey and was seriously damaged. The claimant owners declared “General Average”. This is a concept in Maritime Law where all stakeholders in a sea venture (shipowner and cargo owners) proportionally shared losses resulting from the voluntary sacrifice of cargo or vessel. The Defendant insurer (of the cargo owners) refused to pay on the ground that the vessel was unseaworthy in two respects:

1. It was not manned with a competent crew, more specifically a competent Master and
2. There was no proper system in place for passage planning and/or there was a failure to exercise due diligence in passage planning, intervention of IMO Resolution A.893(21).

Admiralty Registrar Davison was required to look at the entries on the Deck Log and Engine Log. He determined that these entries were made not contemporaneously but after the event. The Deck Log contained an entry as to change of course which would have been incompatible with the fact that the ship was then grounded. The AIS data contradicted that there was such a change in course. The Deck Log also “suspiciously overwrites and obscures a previous entry”. Likewise, the Engine Log recorded main engine movements which were contradicted by AIS data. This led to the damming conclusion by the Registrar that “a simple and much more plausible explanation for the entries in the Engine Log is that they are false and were intended to deflect blame” (Paragraph 38).

This naturally did not paint the best picture of the Captain, who had filled out these logs, and the Registrar went onto to hold that “The grounding was not the product of an isolated error. The errors were numerous and egregious and can be characterized as a complete dereliction of duty” (Paragraph 39). What is interesting (and perhaps unsurprising) is to consider how the falsifying, and post-facto filling in of these “records” also affected the overall question the court was to determine. Where fault or negligence is in play, the overall impression of a person is an important factor for consideration.

This is a case which is an important reminder for those that represent Claimants and Defendants alike not to take “contemporaneous” records on face-value, and properly scrutinise them so that they can be employed properly in the circumstances. This may be in the instance of this case, which involved comparing written records with computerised intelligence from a third party, or employing modern technology, such as exploring the meta-data of images supplied etc, or even asking the simple question of “when was this record completed?”. Indeed, if the records appear to be post-facto, or even falsified, this can go some way in assisting your case, particularly if, for example, the Hotel, wants to maintain their reputation.

About the Author

Julia practices in all areas of Chambers’ work, developing both a busy Court and paperwork practice.

She has experience across Personal Injury, Credit Hire and Travel Law, with both a Claimant and Defendant practice. She was led by Sarah Prager KC in her second six concerning novel arguments about assumption of responsibility of a holiday booking platform.

Julia regularly appears in the Crown Court and Magistrates’ Court prosecuting and defending, across London, the Southeast and the Southwest. She has also successfully applied for various civil orders on behalf of the police, including Sexual Harm Prevention Orders, Stalking Protection Orders and disclosure applications.