It is hard to understand how in Australia wrongful death claims caused by negligence are compensated less than claims where an injured person survives. In the US you hear of claims where families of people killed at work or by negligence get millions of dollars for grief even in the case of babies dying. In Australia there are no damages for grief. The only compensation claimable by Australian surviving family is where a deceased had dependent children and partner or where the death has caused a diagnosed mental illness in a survivor either from grief or witnessing the death.
As babies, children or even young adults without dependents are not supporting anyone so most claims in such cases succeed only if members of the family are mentally ill as a result. The same applies to wrongful deaths in the aged too.
However re workers compensation it is not all bad news. The various workers compensation schemes in Australia all pay lump sum and dependents’ benefits to the dependent survivors. These workers compensation schemes vary in generosity.
Surprisingly though the NSW government has recently increased the no fault lump sum benefit to dependents of deceased workers. The benefit of $331,250 has been increased to $425,000 which is very good.
It allows the lump sum benefit to be paid to a worker’s estate where the deceased leaves no dependents. This is a very good reason to make sure any worker should have a will. If a worker without children or spouse dies without a will it is expensive and difficult to have a court administer an estate. A will can direct payments to those who the worker has made up his or her mind as needing it. Eg a brother or sister with a disability or parents.
It ensures too that workers compensation weekly payments to a dependent are not reduced because of partial dependency. However, partial dependency may still be taken into account when apportioning the lump sum between multiple dependents.
These workers compensation reforms are retrospective and apply to deaths that occur on or after 24 October 2007, and are as a result of workplace injuries that occurred on or after 30 June 1987. It is possible for those who have already claimed to claim a top up benefit.
Remember too that in some cases there may have been negligence in how the worker died who earned a great deal more than the workers compensation no fault benefit. If that is so then a claim for damages may be possible too at common law. There are caps though.
I am an avowed opponent of what NSW has done to injured peoples' rights in workers compensation, motor accidents and public liability but this is a definite step in the right direction.
Terence O'Riain
In the unfortunate event of suffering an accident in the workplace, an employee is presented with a choice as to whether or not to pursue a work accident claims against his or her employer. At this early stage, it is obviously important for the accident victim to understand basic aspects of the law affecting health and safety in the workplace.
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