Dan: Sadly, in 2020, there were 182 Australian workers killed while carrying out duties in the workplace. Unfortunately, it can be the case that family members are unaware of their legal rights in relation to claiming compensation. To find out more, today I’m with compensation lawyer Tim Driscoll from Beilby Poulden Costello. Tim, what are the legal rights in these circumstances?
Tim: Yes, the rights available can be summarised as follows. Firstly, there is what’s called the death benefit, which is apportioned by an order of the personal injury commission to all persons who were dependent upon the deceased or likely to be dependent upon the deceased moving forward. That figure is quite substantial and is increased periodically throughout the process of the workers’ compensation scheme. There’s also the right to compensation with respect to burial and transference of the deceased remains to its last resting spot, and that is capped at, I believe, $15,000 at the moment.
The other right that is available comes from the view that minor children who are dependent upon or were dependent upon the deceased at the time of passing would need further compensation for the day-to-day living and other expenses to which would have been paid for by the deceased. So there is, in addition, a week-to-week payment that is made up until their full-time schooling is finished, which could be, for example, at the end of their high schooling or if they choose to proceed through to tertiary education, through to that point in which they finalise full-time study in that atmosphere.
Dan: Tim, does a successful claim depend on whether or not there was negligence in the workplace that led to the person’s death?
Tim: No, not at all. All that has to be established is that the deceased worker was a worker for the purposes of the legislation at the time of their passing and that their employment was what’s described as being the material cause for their passing. There’s no need to prove fault. There’s no need to prove any kind of negligence or any inadvertence by the employer. It’s simply just an inquiry as to whether work was a material, substantial, or main cause for the passing.
Dan: Tim, does the amount of compensation rely on factors like the amount of money that, that person was earning at the time and potentially the amount of money that would be lost into the future?
Tim: Ordinarily not. The amount of the death benefit, for example, and indeed all the entitlements are set in stone in the legislation. The date of the death of the deceased worker is the relevant date to determine what that figure is, and then it is apportioned accordingly to all the dependents. So no, none of those considerations come into it at all. It is in some ways a simple equation of looking at the time of the passing of the deceased worker.
Dan: And what about the length of time it actually takes to have the funds released under this head of compensation?
Tim: Well, it’s all dependent upon whether a liability is accepted by the relevant insurer. But in the normal type of case where there’s no controversy in that area, then you’re looking at probably three to four weeks, I would say, after the orders are made by the Personal Injury Commission. So it’s a very quick turnaround because obviously there are normally substantial financial pressures on the family, which the insurer would most certainly like to see relieved or alleviated by prompt payment.
Dan: Tim, what about the definition of a worker? I’m thinking in the context of people who may well be self-employed and whether or not in those circumstances, the loved ones are actually able to claim compensation.
Tim: Well, they can shift depending upon the structure of the business that the person is involved in, and so obviously, sole traders are both technically employer-employee of themselves. So the availability of workers’ compensation, insurance, or the requirement, perhaps, to have workers’ compensation insurance is actually zero. But most times you’ll see that when there is an organisation in which they employ people, or there is what’s described as a deemed worker for the purposes of the legislation, then workers’ compensation is in fact mandatory. But from the perspective of an injured worker, in circumstances where they are outside of that sole trader circumstance, they are in fact covered irrespective of whether their employer did the right thing and take out that relevant insurance.
Dan: Tim, what about time limits? We talk about time limits in every other facet of compensation law, but do they apply in this circumstance?
Tim: Look, there are time limitations in relation to bringing a claim. But ordinarily, what you will find is that an insurer will proactively engage with the injured family, or there will be a prompting at certain points throughout the inquiry by SIRA into the passing of the deceased worker, which will enable the time limits to be easily met. You really do obviously need to see a lawyer as soon as possible to ensure that there isn’t any issue with time limitations because they are there. But indeed, there is a lot of relaxing of those rules, considering the nature of the circumstances.
Dan: Now, I know at Beilby Poulden Costello you and your colleagues at the firm have handled many of these types of cases, and it does emphasise the importance of getting the right legal help in these types of serious compensation claims.
Tim: Absolutely. You really do need to have a lawyer that has quite a lot of experience in these matters because it is a very specialised area of compensation. It’s really something that needs that tender loving care, dotting the eyes, crossing the t’s because it is a substantial amount of money that is an issue, and there are a lot of pitfalls, which if you went to a lawyer without the experience may be pitfalls which you fall into. So it is, I would say, almost critical that you do engage a law firm such as Beilby Poulden Costello Lawyers who deal with these matters quite regularly.
Dan: Tim, thanks for joining me.
Tim: Thank you very much.
Thank you for listening. If you have any questions, please call BPC on 02 8280 6900.