By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh
If one looks back at previous pandemics, such as the so-called “Spanish influenza” of 1918-19, through the lens of the law reports, the most striking finding is an almost complete lack of cases in Scotland (or elsewhere in the United Kingdom), despite the lack of any legislative response at all from a central government yet to assume much responsibility for public health. The only possible Scottish case about Spanish influenza thrown up by a Westlaw search for “influenza” between 1918 and 1925 was McKeating v Frame 1921 SC 382, which concerned an employer’s liability for the death of a female farm servant aged 17 who collapsed with double pneumonia and influenza while at work in March 1919 whereupon the employer sent her without any support to her mother’s home several miles away, travelling on foot and by bus; she died two days later. The first instance decision that the employer had no liability in these circumstances was fortunately over-turned by the Second Division.
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