The latest Safe Work Australia statistics show 81 Australian workers died on the job in the first half of 2022. Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, discusses the need for stronger protections for Australian workers, and what compensation is available to support loved ones left behind when a worker loses their life on the job.
Background
Showing up at work shouldn’t mean putting your life at risk. But unfortunately, it’s an appalling reality that a worker is killed on the job once every two days in this country. That is one of the shocking findings in a new report released by the Australian Council of Trade Unions (ACTU) into the work, health and safety failings that have occurred under the Morrison Government.
The Missing in Action report uncovered a massive 32% jump in workplace deaths each week as well as an 8% increase in injuries since 2018.
It has been said that 5,000 workers will continue to die each year from diseases caused by their work, and 100,000 workers will be seriously injured and depend on a workers’ compensation claim to support them in their recovery. That is if something doesn’t change!
Everyone has a fundamental right to feel safe at work, and that includes addressing the rapid rise in psychological and mental health injuries that continue to increase in frequency and severity.
The recommendations made in the Boland Review of our Work Health and Safety Laws, the Productivity Commission into Mental Health and the Sex Discrimination Commissioner’s Report – Respect@Work must be taken seriously and change needs to take shape before more workers lose their lives or livelihoods.
Notwithstanding the increased awareness of safety issues in the workplace by governments, unions, and employers generally, the rise in the number of fatal accidents at work is of grave concern to all stakeholders. The catastrophic impact of a work fatality on the family of the worker is often overlooked in the statistics, particularly so when there is a partner and young children involved.
Although the majority of workers are covered by WorkCover statutory compensation benefits, sometimes these claims are very difficult to navigate with insurance companies and WorkCover themselves. In many cases, the set lump sum benefits of the statutory compensation are not sufficient to properly compensate a young family who has lost their breadwinner. In most cases, the employer is negligent when a worker is injured at work and it is open to the worker, or his surviving family if there is a fatality, to take common law proceedings for damages for the loss of financial support which would have been provided by the deceased partner/parent. Obviously, the younger the dependants, the higher the compensation amounts are recoverable in these claims.
Claims by the surviving family members are usually referred to as Compensation to Relatives or Dependency Claims. It was not that long ago in our legal history that these claims were still referred to as ‘Lord Campbell Claims’, named after a member of the English House of Lords who championed the cause of families whose husband or father was killed in the rapid expansion of the railways in England during the 19th century. The introduction of the Fatal Accident Act in 1846 was the precursor to legislation in Australia that provides for compensation to be paid to families affected by a fatal work accident or illness.
Lord Campbell’s Act: Paving the way for legal recourse
Prior to 1846, under the common law of England and Wales, there was no law that provided for dependents of a person killed as a result of the wrongful act or omission of a perpetrator. This meant that loved ones left behind after a spouse, parent, or child was killed, were not entitled to damages for their emotional and economical loss.
If a person was injured and remained alive, however, they would be entitled to claim damages for physical injuries or damage to their property.
This meant that if a person was injured through legal wrongdoing, the wrongdoer would be held liable for causing that person’s injury. But, if the person was killed, there would be no such liability. Perversely, the wrongdoer had a financial interest in killing someone, rather than injuring a victim.
It was during the industrial revolution in the 1830s that the rapid development of the railways caused increasing public hostility due to the epidemic of railway worker deaths. Railway worker injuries and deaths were so common that they were unremarked and generally accepted by Railway Companies. The railway accident at Sonning Cutting (1841) was a particularly notorious event that alerted legislators, in particular Lord Campbell and the Select Committee on Railway Labourers (1846), to introduce a Bill to have the legislation changed.
The Fatal Accidents Act 1846 (9 & 10 Vict. c.93), commonly known as Lord Campbell’s Act, was an Act of the Parliament of the United Kingdom, that, for the first time in England and Wales, allowed relatives of those killed by the wrongdoing of others to recover damages.
The Act came into effect in August 1846 and gave personal representatives the right to bring legal action for damages where the deceased person had such a right at the time of their death. Compensation was restricted to the spouse, parent, or child of the deceased and was for such damages, proportioned to the injury resulting in death. The wording of the Act raised questions about how damages were to be assessed.
The Act was amended and finally repealed by Schedule 2 of the Fatal Accidents Act 1976 which governs fatal accident compensation and is based on similar principles. Limited compensation for a family’s grief was finally granted by the Administration of Justice Act 1982, section 3; paving the way for dependant recourse in circumstances of workplace death.
Similar legislation has since been brought into force throughout the English-speaking world.
WorkCover Death Benefits – Statutory Benefits Claims
Australians killed at work leave behind families who suffer insurmountable grief and, in many cases, psychological injuries of their own. Compounding their anguish, the families usually suffer enormous (often lifelong) losses from their dependence on that deceased worker to provide income and services to their family.
Where a worker dies during the course of their work, the worker’s domestic partner or children may be entitled to compensation including:
- lump sum compensation (for deaths this is $539,820 as of 1 January 2022, indexed annually);
- Income maintenance payments based on the worker’s average weekly earnings and the extent of the dependency.
- funeral expenses (capped at $11,392 as of 1 January 2022, indexed annually); and
- costs associated with obtaining counselling.
These benefits are payable on a ‘no-fault’ basis, regardless of whether the fatality was due to negligence. However, due to stringent workplace safety laws, most fatal work accidents are due to negligence on behalf of the employer or another party, and a common law claim is available.
To lodge a claim of this nature with WorkCover, an applicant will need to contact WorkCover by phone or in writing and provide the following documents to support the claim:
- Death certificate
- Birth certificates of each dependant of the deceased
- Marriage certificate (or other proof of a relationship in a de facto relationship scenario) for the spouse
- Invoices and documents to show funeral expenses
- Tax or income documents demonstrating the income of the deceased
- Copies of household bills to demonstrate household expenditure.
Workplace death and dependency claims are complicated concerning both the statutory benefits claim and the common law claim. Ensure you have the legal support you need to be guided through the process. You may also have the right to bring a common law dependency claim for damages for negligence, which can often be a substantially higher amount of compensation than the lump sum statutory amount.
Attwood Marshall Lawyers – specialist compensation lawyers to support you during this difficult time
Attwood Marshall Lawyers have an experienced compensation law team who dedicate their time to helping people in the community affected by injury or death because of workplace incidents.
We have the experience to take on the big insurance companies to advocate for your rights and get the outcome you need. We operate on a No Win, No Fee basis for all workers’ compensation claims, which means you only pay our legal fees if you win your claim.
We offer a free, no-obligation initial consultation so that you can discuss your matter with an experienced lawyer, ask any questions you may have, and find out what your prospects of success will be to pursue your claim.
It is our intent to help you get the treatment you need and ensure your future is financially secure. We do our best to take the stress out of the equation for you so that you can focus on your recovery while we deal with the insurance provider and the claims process.
For a free case assessment, contact our Compensation Law Department on 1800 621 071 to organise a free and confidential initial appointment. In addition, you can visit our experienced team at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more:
World Day for Safety and Health at Work and Workers’ Memorial Day – 28 April 2021
Working from home and WorkCover Compensation Claims: Am I still covered?
Queensland’s first jail sentence for new industrial manslaughter laws
