Empty supermarket shelves but unlikely compensation claims

22 April 2020

We haven’t seen the World Health Organisation (WHO) classify a pandemic since 2009 where we saw H1N1 influenza, better known as ‘swine flu’, spread around the world. Fast forward 11 years we see the outbreak of Coronavirus (COVID-19) causing deaths, lockdowns and empty supermarket shelves being classified by the WHO as a world pandemic.

COVID-19 and its effect in Australia, and more specifically, Tasmania

As at 19 March 2020, of the 214,636 globally confirmed cases of COVID-19, there were 596 confirmed cases Australia wide, with 10 of those from Tasmania. Australia’s confirmed cases, therefore, made up less than 0.3% of the world’s confirmed cases.

As an employer in Tasmania, do I need to be worried about Coronavirus as a possible workers compensation claim?

All in all, unlikely.

Section 25(1)(b) of the Workers Rehabilitation and Compensation Act 1988 (Tas) (the Act) provides that employers are liable to compensate workers for injuries which are diseases if a worker suffers an injury, being a disease, to which their employment “contributed to a substantial degree” within the meaning of section 3(2A) of the Act, namely that the worker’s employment is “the major or most significant factor”.

It is important to understand that contribution test is not pitched at the microbiological level, but instead the query on causation is at a more practical level – in every case it must be determined whether the worker’s employment caused them to contract the virus.

Under section 3 of the Act, an injury includes a “disease”, which in turn is defined as “an ailment, disorder, defect or morbid condition of sudden or gradual development”. COVID-19 clearly fits within this definition.

However, for a worker to establish an entitlement to compensation for contracting COVID-19, they would need to establish on the balance of probabilities that they had contracted the virus in the course of carrying out their employment duties in order to establish that their employment was the major or most significant factor as to how the virus was contracted.

Such a claim, of course, would be subject to a highly fact-sensitive investigation. If infection rates remain low in Australia in relative terms, and more specifically, in Tasmania, establishing that a worker had contracted the virus within the scope of their employment might be less problematic at this early stage of the onset of the virus. At this early stage, it may not be as difficult to prove that a worker contracted the disease from a particular person at a particular workplace. This includes Tasmanians working overseas and elsewhere in Australia where the “State of connection” for those individuals was Tasmania according to the employment connection test set out in s.31A of the Act.

However, given that the spread of the virus is, at this stage, increasing and as time marches on, a worker’s likelihood of being able to successfully establish that their employment was the major or most significant factor in them contracting COVID-19 would, as a matter of logic, seem to decrease. For example, that is why workers compensation claims are rarely made for common viral conditions such as the flu. As always however, each case must be assessed on its merits, informed by the particular facts and circumstances.

Relevant facts and circumstances might include the worker’s profession or industry sector, and quite clearly, any known exposure that they have had to a person with COVID-19 and whether that occurred within the bounds of their employment.

Beyond their workers compensation obligations, employers have a broad range of WHS responsibilities to identify and control risks which may present a health and safety risk for their workers and other people connected with the workplace, and according to WorkSafe Tasmania “all businesses should be monitoring advice from Public Health Services on the current status and advice on what to do to prevent exposure, when to seek medical treatment and when and how testing should be conducted.”

In relation to any workers compensation claim that is made by a worker who contracts COVID-19, while the virus is new, liability for the claim will be determined in accordance with the existing provisions of the Act and the well-understood principles that apply to the workers compensation scheme in Tasmania. If you do receive a claim or have any questions about the potential legal implications, then we recommend taking legal advice.

This article was written by Luke Taylor, Partner and Laura Paton, Solicitor.

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