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Most workers return home safe at the end of every day, and that’s obviously how it should be. Government bodies like WorkSafe Queensland and other organisations continually strive to reduce the numbers of workers killed each year. To an extent, these efforts have been successful - the number of workplace traumatic injury fatalities has reduced from 34 fatalities in 2015-16 to 30 in 2019-2020.

Any person touched by a fatal workplace accident is likely to be seriously impacted. If you are a partner or family member of someone killed in a work-related accident you may be able to claim compensation for your loss. Between 2016 and 2021, about 340 claims were lodged for compensation where workers had died from workplace accidents, illnesses caused by work, or vehicle accidents involving workers travelling for their employment, or making the journey to or from work.

Who can claim compensation for a fatal work injury?

In the event of a fatal workplace accident there are three categories of people who might have a claim for compensation. These are:

  • Spouses, civil, or de facto partners of deceased workers
  • Family members or other dependents of deceased workers
  • Anyone who has suffered psychological injury because of a fatal workplace accident

This leads to claims for fatal work accident compensation being characterised by reference to two types of claims, which are described as:

Compensation insurance

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Dependency Claims

Family members and other people who were financially dependent on the deceased may be eligible to claim compensation for the loss of support by the deceased person and other financial impacts of their death.

People eligible to make this type of claim will usually include:

  • the spouse, de facto, or civil partner of the deceased person
  • children under the age of 18
  • adult children who can show financial dependence on the deceased - this could include adult children being supported through study.

Dependency claims can be made to WorkCover and can be made for deaths from workplace accidents or where a person has died after suffering an illness caused by their work.

Dependents can also choose to make a claim through the courts, called a ‘wrongful death’ claim. This type of compensation claim is called a claim for ‘wrongful death’, because it is based on someone doing a wrongful act or wrongfully failing to do something they should have done, like failing to take reasonable care for the deceased person when there was a duty to do so. In law, that is called negligence.

In order to claim for wrongful death, dependents must establish that someone would have been liable to pay the deceased person compensation if they had survived. Where it’s alleged this is because someone is negligent, the claimant needs to prove:

  • that a person or organisation owed the deceased person a duty of care
  • that they breached that duty by not taking reasonable care in the circumstances
  • that the death was caused by their failure to take reasonable care
  • that the death was a reasonably foreseeable outcome of the person’s negligence

For work accidents, it will generally be the deceased’s employer who is liable if there has been negligence. However, in the situation where a worker is killed driving for work purposes, or to or from the workplace, it may be another driver who is negligent. In those cases, a claim may be available against the negligent driver’s insurer.

Wrongful death claims are not straightforward.

Our team of expert workers compensation can help you understand your rights and entitlements with free initial advice. Claims are run with no upfront costs on a no win, no fee basis. Request a call back via our live chat or call us on 1800 094 603.

Psychological Injury or Nervous Shock Claims

A traumatic event can cause psychological injuries for those involved and for others who witness the incident, or are impacted by the incident - like first responders. Typical injuries of this kind include depression, anxiety, and post-traumatic stress disorder.

These claims are often known as ‘nervous shock’ claims, as they are most commonly made by people who suffer a recognised psychiatric injury from witnessing an accident or its aftermath, or in some circumstances, being told about the deceased’s death.

A person who develops a psychiatric injury in this way may have a right to claim compensation. Where a fatal accident occurs in a workplace, this can include:

  • colleagues of the deceased worker who directly witnessed the incident
  • first aid officers or other workers who provide initial treatment, if any
  • close family members, including dependents, but this also could include siblings or adult children of the deceased

Claims for psychological injury can’t be made directly to WorkCover and a common law claim, as described above, needs to be made. Generally, this will also involve proving that negligence caused the fatal accident, and therefore the resulting psychological injury.

Nervous shock claims are brought separately by each person who has suffered psychological injury. The compensation for each successful claimant is usually based on the impacts the psychological injury has had on the affected individual’s ability to earn income, as well as treatment expenses like seeing a psychiatrist or psychologist.

Personal injury lawyers can provide advice on whether you are entitled to make a common law claim and the steps involved.

What does a fatal work accident claim cover?

The compensation payout that might be awarded in a fatal work accident claim will depend on whether it is a worker’s compensation claim by dependents, or a common law claim - either on the basis of dependency or psychological injury.

For worker’s compensation, payouts can be made as a lump sum or quarterly. Compensation will usually include payment or reimbursement of reasonable funeral expenses, and then an amount to recognise the loss of financial support provided by the deceased to family members who fall in the legal categories of being dependent or partially dependent on them.

The amounts that can be claimed for loss of financial support are set by legislation and reflect the number of dependents, their age, and their level of dependency. As a general guide, dependents would currently be entitled to between about $101,500 and about $730,900 in total. 

The compensation would be towards the lower amount where there are no dependent children, and other family members were only partially dependent on the deceased. Amounts towards the other end of the scale are more likely where there are wholly dependent children, and a dependent spouse or partner. 

For common law claims, the court decides the compensation amount, so it’s less clear cut. The court would consider the following when deciding what dependents are entitled to:

  • Loss of economic support from the deceased worker, for example, the income they brought into the family
  • Medical costs
  • Funeral expenses
  • Loss of services provided by the deceased worker, for example, care of children, gardening, household maintenance, and similar services. The cost of replacing these services using commercial providers is often used as a guide to calculate the value of this loss.

Time limits for fatal work injury claims

Legal matters are probably among the furthest things from your mind after the death of a loved one. However, if you are dependent on the deceased person, it will also probably be helpful to have the financial support that worker’s compensation payments can provide.

As explained above, there are normally two ways in which compensation can be claimed in relation to a workplace fatality: through WorkCover or through the courts.

A WorkCover claim must be lodged within six months of the person’s death. There are useful resources about making a claim here.

Court claims can be made within 3 years, although there are some earlier steps that need to be taken.

Many people understandably find they appreciate the assistance of a professional when trying to navigate a claims process alongside everything else they’re dealing with in the wake of a loved one’s passing.

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Additional claim via Superannuation insurance

If a person suffers a fatal work related injury, the deceased’s family members may be entitled to a death benefit payment from their superannuation policy. This is in addition to any worker’s compensation or compensation awarded by a court.

Death benefits under superannuation do not rely on anyone being at fault. They are simply a feature of the superannuation scheme, and the details depend on legal provisions and the terms of the superannuation policy. This type of payment may be available as a lump sum or an income stream.

Fatal work injury statistics

In Queensland, Worksafe publishes reports containing statistics about injured workers, including those who sadly died from their injuries or a work-related illness.

The latest report details that in 2020 there were 34 workers killed in Queensland. Encouragingly the number of work-related deaths has been reducing - the WorkSafe report explains that there has been a 63% reduction in fatalities since 2007.

Compared to the rest of Australia, Queensland performs fairly well. In 2020, there were 34 work-related fatalities in Queensland, the third highest number behind NSW and Victoria. But the fatality rate per 100,000 workers in Queensland was only 1.4, amongst the lowest in the country.

Industries and jobs with the most fatal accidents

While any job carries the risk of fatal injury, there are certain occupations and industries that tend to have the highest rate of fatalities. The 2020 WorkSafe Queensland report reveals the following jobs and industries with the most fatalities and the highest rates of fatalities, as well as the way fatal accidents most commonly occur in Queensland workplaces.

Occupations such as truck drivers and forklift truck operators in warehouses come with some of the highest risks.

Machinery operators and drivers102.8
Technicians and trades workers61.7
Top 3 Occupations for Fatal Work Injury
INDUSTRYFATALITIES IN 2020FATALITY RATE IN 2020 (per 100,000 workers)
Agriculture, forestry and fishing1112.2
Transport, postal and warehousing107.9
Electricity, gas, water and waste services13.5
Top 3 Industries for Fatal Work Injury
Vehicle incident1956%
Being hit by falling objects39%
Being hit by moving objects26%
Top 3 Causes of Fatal Work Injury
Posted by Chris McMahon Special Counsel

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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