Liability for compensation for death of volunteer firefighter – who should pay?

03 April 2019

City’s liability to pay compensation (and hold relevant insurances) for death arising in a volunteer fire fighting capacity is greater than that of the State.

In Issue

  • Whether compensation for injury for the purposes of the Bush Fires Act 1954 (WA) (BFA) includes compensation for death;
  • The operation of s37 of the BFA in the context of the Schedule 1 to the Workers’ Compensation and Injury Management Act 1981(WCIMA); and
  • What proportion of any prescribed compensation arising from the plaintiff’s death was payable by the City vs the State.

The Background

The plaintiff was a volunteer fire fighter. The plaintiff suffered a stroke while engaged under the BFA and in the course of providing normal brigade activities for the City of Albany (City). He died approximately a week later as a result of the stroke.

Section 37 of the BFA is directed to compensation for fire fighters injured in the course of fighting bush fires and the City and the local government's respective share of the total amount payable to a fire fighter or his or her beneficiaries.

The plaintiff’s widow made a claim for compensation under the BFA. The total amount of compensation payable in accordance with s37(5) of the BFA , amounted to $515,409.20, being 2.36 times the ‘prescribed amount’ as defined in s5 of the WCIMA. Entitlement to compensation and the compensable amount were not in issue.

The City's insurer and the State were each liable to pay a portion of the total amount, and the portion to be paid by the State of Western Australia (State) was the difference between the prescribed amount and the amount of compensation the City's insurer was obliged to pay. A dispute subsequently arose between the City and the State as to what proportion of the compensation payable to the plaintiff’s widow under the BFA was attributable to each of the State and the City.

The City argued that its liability to pay compensation was less than the State on the basis that:

  • Injury, for the purposes of s37(2) of the BFA, does not include death;
  • Death is a ‘specified injury’ as defined in s37(6) of the BFA;
  • Clause 37(3) of the BFA does not incorporate schedule 1 of the WCIMA in its entirety; and
  • BFA has its own compensation regime.

The State disputed the City’s position. The parties also considered the level of cover required to be obtained by the City in all the circumstances. The City questioned whether the cover was required to extend to death in circumstances where death was not an injury.

The Decision at Trial

The City was ultimately liable for the majority share of compensation payable to the deceased’s wife pursuant to the BFA. The death was held to be caused by the injury for the purposes of the Act and all of the clauses contained in schedule 1 of the WCIMA applicable.

The Court held that the City was obligated to take out insurance to cover payment of the death benefits pursuant to schedule 1 of the WCIMA (insurance of this nature was held by the City in any event). The City’s total liability was $339,664.33 (the total amount payable in consideration of all of the clauses of schedule 1 of the WCIMA). The State was required to pay $174,744.97 (the ”prescribed amount” less the WCIMA payments).

Implications for you

Death is an injury for the purpose of the BFA and the division of liability for compensation payable under s37 of the BFA requires consideration of all of the clauses of schedule 1 of WCIMA in addition to those listed in s37(3) of the BFA.

City of Albany v The State of Western Australia [2019] WASC 71

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