WORKPLACE ACCIDENT – DECIPHERING LEGAL ENTITLEMENTS

On 27 May 2019, a worker was tragically killed and another worker seriously injured in a workplace accident, after becoming trapped under landfill at a waste disposal site at Eastern Creek. It is believed that the two men were hit by a heavy vehicle, mostly likely a bulldozer, and covered in metres of waste.

The incident is just one in a stream of recent workplace accidents, including the death of an 18 year-old apprentice, who was crushed in a scaffolding accident at Macquarie Park in April 2019.

LEGAL ENTITLEMENTS AFTER A WORKPLACE ACCIDENT

It is quite unimaginable to lose a loved one in such devastating circumstances. However, the situation can become even more stressful when you factor in the financial burden on the families of the workers.

Fortunately, there are some legal avenues of assistance for relatives who have lost a loved one in a workplace accident such as the Eastern Creek landfill incident.

WORKERS COMPENSATION

Under the NSW workers compensation scheme, the insurer may provide support payments if a worker’s death was the result of a work related accident.

If the insurer accepts liability for the accident, dependants of the worker may be entitled to:A lump sum death benefitump sum death benefit.

  1. A lump sum death benefit
  2. Payments for each dependent child.
  3. Funeral expenses.

1) Lump Sum Death Benefit

The dependants of a worker, whose death occurred on or after 24 October 2007, may be entitled to a lump sum payment. The current amount for a lump sum payment is $810,050.00 (indexed every April and October).The lump sum payment is apportioned between all the dependents of the worker.

2) Payments for Dependent Children

Each of the worker’s dependent children up to the age of 16 (or 21 if they are in full-time education) may be entitled to payments of $145.00 per week.A dependent child can be a worker’s child or step child who was wholly or partially dependent on them for support at the time of the worker’s death.

3) Funeral Expenses

The cost of reasonable funeral expenses may be payable to a maximum of $15,000.00.

COMPENSATION TO RELATIVES CLAIM

 A Compensation to Relatives claim may be available if the cause of death was caused by the negligence of another party.

This type of claim is aimed at compensating the people who were financially dependent on the deceased, or who relied on them for domestic assistance, childcare, transport and the like.

A Compensation to Relatives claim may entitle the dependents to economic losses such as lost wages, earnings and superannuation, as well as medical and funeral expenses.

In the case of the poor landfill worker, his dependants may be entitled to make a compensation to relatives claim if they would have expected to derive a benefit from him, but for the accident and his subsequent death.

NERVOUS SHOCK CLAIM

 A close family member of the deceased may be entitled to bring a nervous shock claim if, as a result of the death of the loved one, they have suffered a psychiatric injury. It must be a recognised psychiatric illness such as Post-Traumatic Stress Disorder.

This type of claim can be brought by persons who witnessed the individual being killed or injured at the scene, in circumstances where it was reasonably foreseeable that a person of normal fortitude would have suffered a recognisable psychiatric injury if reasonable care were not taken. A close family member need not have witnessed the incident.

This type of claim is difficult to assess but is similar to a personal injury claim, with damages available for economic and non-economic losses, as well as medical expenses.

FURTHER CONSIDERATIONS: MOTOR VEHICLE ACCIDENT

 It is believed that the tragic incident at Eastern Creek involved a bulldozer.

A bulldozer is a motor vehicle for the purposes of the Motor Accidents Injuries Act 2017 (NSW). In a motor vehicle accident (post 1 December 2017), statutory benefits will be payable for reasonable funeral expenses.

However, an individual will generally be precluded from the recovery of statutory benefits where there may be entitlements under the workers compensation scheme.

Nonetheless, it will be important to discuss with a lawyer the specific circumstances of the accident to understand if the entitlements should be obtained under the workers compensation or motor vehicle accident scheme.

As can be seen above, there are many potential forms of legal assistance available for the loved ones who have lost someone in such terrible circumstances like the Eastern Creek landfill incident.

If you or someone you know has recently lost a loved one in a workplace accident, we recommend speaking with one of our professionals at Stacks Goudkamp who can help you navigate through the legal system to understand your entitlements.

Written by Sylva Dankha.

Sylva Dankha is a solicitor in Anna Tavianatos’ Practice Group. Sylva represents people in a wide variety of matters including motor vehicle accidents, workers compensation and public liability claims.