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COVID-19: Impact on the Australian workers compensation schemes

27 September 2021

The media has recently reported that a worker in Victoria plans to pursue a claim for negligence against her employer after she contracted COVID-19 in the workplace and is now suffering from persisting symptoms.

The worker was employed in an administrative capacity at an aged care facility where 18 residents and five staff tested positive in July 2020. The worker stated she wasn't instructed on correct PPE protocols before commencement at the facility, and alleges saw multiple breaches of infection control during the two shifts she worked there.

The worker is now alleging her quality of life has been diminished since contracting the virus.

Litigants in this position must demonstrate that they've sustained a degree of permanent impairment. This is challenging due to the differing symptoms presented by the virus.  It is reported that the worker's legal representative considers that approximately 18 months post-infection is when persisting symptoms are able to be assessed for their permanency and stabilization.

There is also speculation that family members who have contracted the virus from workers may attempt to bring a claims against the employers. While such a claim is unlikely to be successful as this is outside the scope of an employer's usual duty of care to workers, it could fall within the realm of public liability if the employer has ignored that it may put others at risk.

The reasoning of the Australian courts is yet to be tested in the context of workers compensation and the global pandemic. We anticipate a precedent will be set following the first matter to reach a trial, and consider this will govern the number of negligence claims against various workers compensation insurers, particularly those in Victoria and New South Wales. 

We will keep you updated with any relevant developments. 

We would like to acknowledge the contributions of  Joshua Nash and Kit Lam to this article.

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