COVID-19 death found to have occurred during the course of worker’s employment

08 December 2021

In issue

In issue before the Commission was:

  • Whether the deceased was an employee of the respondent
  • Whether his COVID-19 infection arose out of or in the course of his employment
  • Whether his employment with the respondent was the main contributing factor to his COVID-19 infection

The background

The deceased worked for the respondent, an Australian company that sells dental equipment and technology. He had travelled from Sydney to New York to promote and sell the respondent’s dental technology. On 23 July 2020 he was admitted to hospital and diagnosed with COVID-19, his condition got progressively worse and he passed away in November. The deceased’s wife is the applicant in this case and has brought proceedings on behalf of the estate for weekly compensation payments and expenses and on her own behalf for the lump sum death benefit.

The decision at trial

The Commission awarded judgment in favour of the applicant.

In support of the finding that the deceased was an employee of the respondent whilst working in New York, the Commission relied on a variety of factors including the fact that the deceased was paid a wage by the respondent (as supported by tax returns, pay slips and evidence of workers compensation insurance) and continued to be paid by them whilst working in New York.

Whether or not the deceased contracted COVID-19 during the course of his employment required the Commission to consider the point in time that the disease was contracted. To do this, the Commission stated it was required to draw inferences from the underlying facts. The respondent argued that there was a variety of opportunities for the deceased to have contracted COVID-19 during his time in New York whilst he was participating in activities that were not work related. However, after hearing the objective evidence, including that during his travel from Sydney to New York the deceased would have been exposed to a large number of people who would have had a higher risk of COVID-19 and the fact that the deceased did not like wearing masks and barely wore them, the Commission found that the deceased probably caught COVID-19 between boarding his flight in Sydney and arriving at his hotel in New York. Therefore, the Commission found that because this period of travel was induced and encouraged by the respondent, the deceased’s contraction of COVID-19 was found to have occurred during the course of his employment.

Implications for you

As Australia begins to open up and we learn to live with COVID-19, workplaces must be in tune to the very real risk that their workers could contract COVID-19 in the course of their employment. That said, just like physical risks, there are steps that workplaces can take (vaccination, mask mandates) to eliminate the exposure of COVID-19 in the workplace. Nevertheless, the basic principles of workers compensation apply to assessing injury causation and considering the available objective evidence is important in assessing transmission and infection and then assessing what contribution employment has on the infection by COVID‑19.

Sara v G & S Sara Pty Ltd [2021] NSWPIC 286

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