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WorkCover death benefits and Common Law negligence claims – the legal options for bereaved families


When a workplace fatality occurs it is tragic and often WorkCover death benefits and Common Law Negligence Claims for the families affected are overlooked, writes Compensation Law Partner, Jeremy Roche.

WorkCover death benefit payments and common law negligence claims are an important area of compensation law for workers. Despite the proliferation of occupational health and safety (OHS) laws and industry regulation, Australia has incurred an alarming spate of workplace deaths across the country.

According to Safework Australia, in the year-to-date to 1 August 2019, there have been 83 workplace deaths – the same number for the previous year period. Approximately 425 Australian workers have lost their lives in workplace accidents between 2017 and mid-2019.

The majority of these workers were male, employed in industries such as construction, agriculture, warehouse, mining, and transport.

The fatalities have been caused by catastrophic accidents such as agricultural machinery accidents, mining equipment accidents, construction/machinery accidents, forklift accidents, power tool accidents, falling from heights (eg. at a construction site), being crushed to death (eg. by a scaffolding tower that collapsed), electrocution or fatal wounding by moving objects.

The high number of workplace fatalities might indicate that some employers (and industries) are too lax in their safety procedures and their duty of care to their own employee safety and welfare. In a recent survey of the Australian Council of Trade Unions, 80% of 26,000 respondents indicated they do not think Australian workplaces take safety seriously enough.

In Australia, there is no compensation claim available specifically for the fatality itself. The spouse and family (ie. “dependants”) can make a Statutory Benefits Claim (WorkCover death benefits) and potentially a Common Law Negligence Claims with respect to their losses suffered as a result of workplace deaths.

It is our experience that bereaved families are often not aware of all their rights when it comes to claiming WorkCover death benefits or Common Law Negligence Claims.

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 also suffer enormous (often lifelong) losses from their dependence on that deceased worker to provide income and services to their family.

In the case of a workplace fatality, the family members (“dependants”), including children, of the deceased can make a claim for reasonable funeral expenses, a lump sum death benefit, and/or periodic payments to each child of the deceased worker up to the age of 16 (or to ages 16-25 if the child is undergoing full time education and not working).

These benefits are payable on a ‘no-fault’ basis (ie. regardless as to whether the fatality was caused by negligence). Due to stringent workplace safety laws, most fatal work accidents are caused by negligence on behalf of the employer or another party and a common law claim is available.

Common Law Negligence Claims

The dependants are also entitled to make a common law damages claim for compensation in circumstances where the death was caused by negligence (eg. an unsafe system of work).

Common law dependency claims are claims made by the dependants in the one legal action and the damages are split between the dependants in accordance with their individual level of dependency on the deceased.

The settlement of any common law dependency claim involving compensation awarded to minors (ie under age of 18) will require the sanction of the court or public trustee to ensure that the settlement if fair and reasonable to each minor. Those funds will thereafter be held on trust until the minor reaches adulthood.

WorkCover death benefits – what to do

Workplace deaths are devastating and it is important to grieve and ensure that you are surrounded with support – whether it be through family members, psychological assistance, or other means.

To lodge a claim with WorkCover, you will need the death certificate, birth certificates of each dependant, marriage certificate (or other proof for a de facto) for the spouse, funeral expense documents, and tax or income documents demonstrating the income of the deceased.

Workplace death and dependency claims are complicated with respect to both the statutory benefits claim and the common law claim.

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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