08 Oct EMPLOYER HELD LIABLE FOR COVID-19 DEATH

The Personal Injury Commission of New South Wales (the “Commission”) in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 has for the first time, found an employer liable for the death of an employee who contracted COVID-19 during the course of their employment.

This case is significant, as it establishes a precedent that employers may be liable for COVID-19 death or injury where an employee can demonstrate that they:

• contracted COVID-19 in the course of their employment; and

• their employment was the main contributing factor to this.

Background

The employee had worked for an Australian based company (G & S Sara Pty Ltd (“G & S”)) that sold dental equipment and technology. The employee travelled to New York last year, to sell and promote their technology. However, during that time, he was hospitalised with COVID-19 and ultimately passed away.

Claims

The employee’s wife made a claim under the NSW workers compensation legislation, seeking compensation and a lump sum death benefit on the basis that the employee’s COVID-19 infection happened during the course of his employment.

G & S defended this claim on the basis that the employee performed work in New York for its United States (“US”) entity and therefore it had no liability under the legislation.

Findings

The Commission found that the employee had contracted COVID-19 within the time he flew from Sydney and arrived at his hotel in New York.

The Commission accepted that the virus had caused respiratory failure and that this amounted to a “personal injury” within the meaning of the legislation.

The Commission also found that the employee was an employee of G & S because of reasons, including:

• the US entity was organised so that G & S was the employee’s employer. This was evidenced on taxation returns, workers’ compensation insurance and payslips;

• there was no transfer of employment to the US entity and the employee continued to be paid his normal pay by G & S; and

• G & S received a direct benefit from the work the employee performed in the US.

Finally, the Commission said the travel to the US, “was clearly within the course of the employment” as G & S “induced and encouraged” the activity and subsequently confirmed the employee’s injury occurred in the course of his employment as it was determined the employee contracted COVID-19 while travelling.

The Commission ordered G & S to pay the employee’s wife a $834,000.00 lump sum death benefit and weekly compensation for the period the employee was unwell and unable to work. A claim for expenses alleged to be in the order of $11 million (USD) was stood over.

If you require advice on how to limit the risk of such a claim being made for a COVID-19 related injury or death, or would like advice on dealing with a claim, please get in touch with the team at HR Law