Pressure has ramped up on the construction industry to improve its workplace health and safety following a serious incident at an underground rail worksite in Brisbane. Attwood Marshall Lawyers Compensation Law Partner and QLD Law Society Accredited Specialist Jeremy Roche discusses the need for stronger protections for Australian workers and the WorkCover compensation available to workers and their families when workers are seriously injured or killed at work.
Serious Workplace Accident at Cross River Rail, Boggo Road, Brisbane
On 25 July 2023, a 54-year-old worker fell through two levels of scaffolding at the Cross River Rail site at Boggo Road in Brisbane and landed on concrete some 12 metres below.
The injured worker suffered severe injuries and remains in critical condition in the Princess Alexandria Hospital. His injuries were so severe that he reportedly required resuscitation after the fall.
Workers and industry unions have again demanded improvements to workplace health and safety at the Cross River Rail worksites and in the wider construction industry generally.
Angry union members took to the streets in Brisbane City the day after the incident in protest of the Cross River Rail project’s troubling safety record and what they perceive as a bullying culture ‘at the top’ that has stifled their safety complaints.
The $6.7 billion Cross River Rail project started in 2017, constructing a rail line from Bowen Hills in the inner north of Brisbane to Dutton Park in the inner south.
CFMEU Queensland assistant state secretary Jade Ingham said that a prior safety audit had recommended “a whole bunch of changes in relation to, particularly, scaffolding,” according to the Brisbane Times. In the same news article, Transport Minister Mark Bailey stated, however, that he had not seen the audit and understood that the Cross River Rail project had been “ticked off” by Workplace Health and Safety Queensland only weeks before the serious incident occurred.
Mr Ingham contends that workers have identified “literally thousands” of safety issues across the 15 Cross River Rail sites, including the risk of falling objects, “near misses” with vehicles and problems related to electrical safety. The safety regulator has also issued “over 300 enforcement notices.”
CFMEU state secretary Michael Ravbar has called it “one of the worst track records for safety that any of us can recall in the construction industry in Queensland.”
The transport minister has rejected calls for his resignation and confirmed the launch of a safety investigation with a “reset” across all 15 sites. He said it was unclear whether a harness was required or whether the site was in breach of safe workplace practices relating to scaffolding. Irrespective of his comments, union workers continue to call for Mr Bailey to resign.
Serious Accidents and Fatalities in the Construction Industry
Serious workplace accidents and fatalities are all too common in the construction industry in Australia. The sector routinely sits in the worst two industries for worker fatality rates.
So far this year, 17 of the 82 workplace fatalities across the country were in the construction sector. Since 2003, 4,303 Australians have died at work.
In the 2021-22 financial year, 497,300 people reported a work-related injury or illness, with 24 per cent caused by ‘lifting, pushing, pulling or bending’ and 17 per cent attributed to workplace falls.
Enough is enough. Going to work to provide income for yourself and your family should not mean risking your life. Yet that is the unfortunate reality for construction workers across Australia.
Despite the increased focus on safety issues in the workplace from governments and unions and improvements to technology and safety procedures, we continue to see far too many serious workplace injuries and deaths that could, and should, have been avoided.
The impact of a workplace fatality is enormous, mainly where the deceased worker leaves behind a spouse and children or other dependents.
Employers should take all reasonable measures to improve safety on worksites and minimise the foreseeable risk of injury or death to their employees. They must address the concerns that last week’s Cross River Rail protesters allege are often ignored.
Compensation for serious workplace deaths
WorkCover benefits for work-related deaths
WorkCover death benefit claims are usually available in two different streams – statutory benefits and common law negligence claims. Here we explain the difference between the two types of claims and who may be eligible to claim these benefits.
When a fatality occurs at work or during the worker’s journey to or from work, family members can claim reasonable funeral expenses, a lump sum death benefit or periodic payments to the surviving spouse and the dependent children up to 16. Payments to children can be extended beyond this age if the child is between 16 and 25, studying full-time, and not working.
Statutory benefits are payable on a no-fault basis, regardless of who caused the accident or was responsible for the death.
For example, if an employee is killed on their way home from work in a single motor vehicle accident due to their fault or negligence, a statutory lump sum and weekly benefits would be available to the deceased worker’s family. Likewise, the WorkCover benefits are payable if a worker dies through no employer fault (this does not happen often).
The lump sum benefit and weekly payments are paid according to a set formula that changes each year on 1 July. There is a table of benefits payable under the WorkCover legislation. For example, the lump sum payable to a dependant is currently $676,700.
Common Law Negligence Claims
Where the fatality occurred because of the employer’s negligence (or the negligence of another third party), this opens the door for the dependants of the worker who lost their life on the job to pursue a “common law claim.”
By law, all employers in Queensland must have compulsory WorkCover insurance to cover their workers, although some large companies self-insure their workers. The employer’s negligence or failure to have proper safety systems at work cause most fatal work injuries.
It is essential to understand that in any claim against an employer, WorkCover Queensland pays the claim, not the employer.
Family members who were financially dependent upon the deceased worker can make what is known as a “dependency claim” or a “compensation to relatives claim.”
Unlike the statutory WorkCover amounts, a common law dependency claim has no cap to recoverable amounts, and each case turns on its facts. The younger the children and spouse, the higher the compensation. For example, a spouse may have depended on the deceased worker for life. Likewise, a disabled child may have a lifetime financial dependency. Other children may have only been dependent until they were 18.
If you have lost a family member to a work-related injury, first and foremost, it is essential to seek the support you need throughout the grieving process. Turn to family members, friends, your General Practitioner, or a psychologist or psychiatrist. Alternatively, WorkCover offers free grief and trauma counselling sessions to anyone affected by a work-related death.
After you get the immediate support you need, you can then take steps to lodge a statutory benefits claim with WorkCover for compensation.
As part of the claim, WorkCover will need to know the cause of the person’s death, your relationship with the person and your dependency on the person.
Usually, you will need the following documents to support your claim:
- Death Certificate;
- Birth Certificate of each dependant (if applicable);
- Funeral receipts;
- Marriage Certificate (or proof of a de facto relationship);
- For minor dependants, proof that a bank account has been opened on trust for payment of the lump sum benefit;
- Income documents such as payslips or tax returns of the deceased;
- Will, Grant of Probate and/or Letters of Administration.
Depending upon circumstances, WorkCover may also request child support documentation and bank statements showing dependency (if, for example, the dependent child’s parent is no longer in a relationship with the deceased).
For WorkCover to approve a claim of this nature, they will want to confirm that:
- The person was employed at the time of the injury by the employer
- The person was considered a “worker”
- A work-related incident caused the fatal injury
- That employment was a significant contributing factor to the fatal injury or that the fatal injury occurred during a journey to or from work.
A claims process under the Queensland WorkCover legislation requires a Notice of Claim for Damages served on the employer and WorkCover that we can prepare on your behalf. A compulsory settlement conference must occur with WorkCover as part of the claims process. Any funds paid out in the statutory claim must be refunded if the matter settles. Usually, any settlement on behalf of minor children needs to be sanctioned by a Court, and sometimes a trustee is appointed to manage the funds for the children until they turn 18.
WorkCover will reimburse any reasonable costs of a worker’s funeral, either by paying the individual who covered these costs or paying the funeral home directly if appropriate.
Other types of compensation and death benefits
Superannuation death benefits
Most workers have compulsory superannuation paid by their employers and will usually have a lump death benefit attached to their policy. This can vary depending on the worker’s age and whether they take out additional cover. They will also have their contributions account. It is also wise to check with the ATO whether the deceased held other superannuation accounts with a lump sum death benefit.
Death cover insurance policy or credit card death benefit
Some workers also have a separate life cover policy with a lump sum benefit payable to the estate or family of the deceased. Credit card holders may have a lump sum benefit attached to their account, so it’s also best to check with the provider for this.
CTP insurance claim where a vehicle is at fault
If the fatality involves a car accident or a vehicle that was not the fault of the deceased, there could also be a CTP insurance claim against the insurer of the vehicle at fault. To lodge a claim, serve a CTP claim form on the CTP insurer on behalf of the estate.
Attwood Marshall Lawyers – helping workers and their loved ones through difficult times
WorkCover Death Benefit Claims are understandably extremely difficult to work through, especially when dependents are grieving the loss of their loved one.
When making a WorkCover claim, it can be helpful to be supported by an experienced compensation lawyer who understands the process and the evidence required to ensure the claim can proceed as quickly and smoothly as possible. When leaning on a compensation lawyer, you can take comfort in knowing they are there to handle the day-to-day interactions and negotiations with the insurer, allowing the family to focus on healing and their immediate priorities.
There are usually complex issues that can arise as part of administering the estate of the deceased and obtaining a grant of probate or letters of administration if there is no Will. It can be even more complex if the spouse has separated from the deceased at the time of the death or if there is a conflict with the family of the deceased. Our firm has a dedicated Wills and Estates department frequently handles these types of estate administration matters involving compensation and practice solely in this complex area of law.
Attwood Marshall Lawyers offer a free case assessment to review your claim and explain what you can expect.
Our lawyers have the experience to take on the big insurance companies and advocate for the rights of workers and their loved ones to get the outcome needed.
We operate on a No Win, No Fee basis for all workers’ compensation claims. For a confidential discussion about your circumstances, please call our Compensation Law Department on 1800 621 071 any time.