Publications

Common Law Negligence Claims for Aged Care Employees

Published on May 22, 2020 by Hannah Duque, Julia Harrison and Hannah Duque

Employees of aged care facilities and nursing homes have been among some of the most affected workers during the COVID-19 pandemic.[1]

Workers who contract the disease may have potential workers compensation claims. The claim process for COVID-19 workers compensation claims has recently been made easier. New legislation means Nurses, Paramedics, Teachers and other essential workers now do not need to prove where they contracted COVID-19 when making a workers compensation claim in New South Wales.

Workers Compensation provides one avenue for workers impacted by COVID-19. Where those employees have sustained more significant injuries as a result of their employer’s negligence, they may also have a claim for common law damages. These are also known as ‘work injury damages’.

In order to make a work injury damages claim in New South Wales, a worker must:

• Have sustained an injury at work that meets the 15% ‘whole person impairment’ threshold; and
• Show that the injury was sustained as a result of the employer’s negligence.

While COVID-19 affects most people with mild symptoms – and some remain completely asymptomatic – some will recover very quickly and some can get very sick, very quickly.[2]  Further the evidence is growing that the long term health impacts as a result of COVID-19 infection  may indeed prove to be profound.[3] The injuries suffered by employees during this pandemic may result in permanent impairment (physical or psychological) or even death, giving rise to a claim. As more research is undertaken into the long term health impacts of COVID-19, the scope for claims to be brought against employers who have acted negligently will only increase.

Employers owe a duty of care to their employees and are required to ensure that there is a safe system of work and that employees are protected in the course of their duties. In order for negligence to be established, the worker would need to show that the employer breached its duty in failing to take reasonable care to prevent the risk of harm. A breach of this duty in the context of COVID-19 might involve the employer failing to have appropriate health and safety measures in place, failing to properly implement public health advice or government mandated restrictions, or failing to supply adequate personal protective equipment (PPE), among others.

One particular situation might be where an employee is more susceptible to and has a greater risk of infection due to an underlying medical condition, age or other known risk factor.[4] If the employer is put on notice of this and fails to put safe systems of work in place, this might give rise to negligence.

Whether or not the employer has breached their duty of care is decided on a case by case basis. However, if a worker is successful in a work injury damages claim, they will be entitled to compensation for past and future loss of income, as well as any relevant superannuation loss.

Carroll & O’Dea Lawyers have Accredited Specialists in Personal Injury Law who can talk to you and provide advice regarding this and other damages claims.

Please contact Julia Harrison, Partner to discuss.