Liability for injury or death

Current law and practice

Statutory schemes

33.27 As noted above, each statutory workers’ compensation scheme provides ‘no fault’ compensation for injury or disease arising out of or in the course of employment. In most jurisdictions, an ‘injury’ is defined as a physical or mental injury, including the aggravation, acceleration or recurrence of an earlier physical or mental injury.^[26] A disease, and the aggravation, acceleration or recurrence of a pre-existing disease, is included in the statutory definition of an injury.^[27] A ‘disease’ is generally defined as a physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual onset or development.^[28]

33.28 To come within the coverage of workers’ compensation legislation, an injury or disease must arise out of, or in the course of, employment.^[29] An injury will arise ‘out of employment’ where the employment contributed to its occurrence. However, an injury or disease that arises ‘in the course of employment’ need not necessarily have such a direct causal connection.^[30] All jurisdictions impose an additional requirement of work-relatedness in respect of disease claims that arise ‘in the course of employment’, but this is not necessarily the case with injury claims. However, in recent years, a number of jurisdictions have moved to impose an additional work-relatedness test for the compensability of injury claims that arise ‘in the course of employment’.^[31]

33.29 In relation to injury, in both Victoria and Queensland, the worker’s employment must be a ‘significant contributing factor’ to the injury.^[32] In New South Wales the requirement is similar, but is framed in terms of a ‘substantial contributing factor’.^[33] In Victoria and New South Wales, whether the employment contribution is ‘significant’ or ‘substantial’ is determined by taking into account a range of factors including the duration, nature and tasks of the employment; the probability that the injury would have happened but for the employment; the state of the worker’s health before the injury and the existence of any hereditary risks; and the worker’s activities outside the workplace.^[34]

33.30 In relation to disease claims, there is a range of additional tests for work-relatedness across the jurisdictions, but the bar is often set quite low. In the Australian Capital Territory, the employment must simply be a ‘contributing factor’ to the contraction of a disease or the suffering of an aggravation, acceleration or recurrence of a disease.^[35] Similarly, in South Australia, the employment must have ‘contributed’ to the disability in the case of diseases and secondary disabilities.^[36] Under Comcare, the employment must have ‘contributed in a material degree’ to the contraction of the disease.^[37] In Tasmania, the employment must have contributed to the disease ‘to a substantial degree’.^[38] In Victoria, New South Wales and Queensland, the employment must be a ‘significant’ or ‘substantial’ contribution to the contraction of the disease or the aggravation of a pre-existing disease, respectively. In Western Australia, the employment must be a contributing factor and contribute to a significant degree to the contraction of the disease or the recurrence, aggravation or acceleration of a pre-existing disease.^[39]

33.31 Once a claim has been made, a worker may be required to submit to an examination for the purpose of determining the worker’s entitlement to compensation. Under the Comcare and Seacare schemes, and in the Australian Capital Territory, New South Wales, Queensland and Western Australia, the right to request the examination arises when notice of injury is given; in other jurisdictions it arises when compensation has been claimed.^[40]

Common law

33.32 As noted above, Australian jurisdictions vary regarding access to common law remedies for work-related injury or death. The Comcare and Seacare schemes have retained the right to claim common law damages in respect of a worker’s death, but workers have only a limited right to claim damages in relation to an injury. A person must make a formal and irrevocable election to proceed for damages. Once an election is made, damages are limited to non-economic loss and cannot exceed a prescribed maximum amount.^[41]

33.33 In the Australian Capital Territory, workers’ compensation legislation does not affect employers’ common law liability for damages for injury or death. In New South Wales, Queensland, Victoria, Tasmania and Western Australia, the right to seek damages under the common law is significantly limited; and in the Northern Territory and South Australia, the right has been abolished.^[42]

33.34 Legislation in each jurisdiction provides that a person cannot retain both common law damages for compensable injury or death, and compensation awarded under a statutory scheme.^[43]

Issues and problems

33.35 In future, employers or their insurers might seek to obtain a worker’s genetic information to deny liability for a work-related injury, disease or death that arose in the course of employment. For example, an employer might seek to establish that the employment did not materially, substantially or significantly contribute to the contraction of a disease, but that it arose primarily as a result of the worker’s pre-existing genetic status.

33.36 For example, in 2001 the United States’ Equal Employment Opportunity Commission instituted proceedings against a company for the alleged non-consensual genetic testing of certain employees’ blood after they had filed claims for work-related carpal tunnel syndrome injuries. The company was allegedly seeking to detect whether the employees had a genetic predisposition to that condition.^[44]

33.37 While each Australian jurisdiction permits the medical examination of injured workers once they have filed workers’ compensation claims, the Inquiry has not been made aware of any ethical guidelines for conducting these examinations. In practice, the collection of genetic information during these examinations (whether through genetic tests or family medical history) appears to be limited only by existing technology, considerations of relevance and reasonableness, and the worker’s discretion to withhold consent. As more genetic tests become available, workers could increasingly be asked to undergo genetic tests, or to disclose the results of genetic tests undertaken previously, as part of these examinations.

Submissions and consultations

33.38 The ACTU commented on the prevalence of workplace injury and death in Australia, noting that such occurrences result from workplace hazards and not the individuals’ genetic status.

[There] is a total of at least 2,750 work‑related deaths each year, or more than 50 deaths every week, which is higher than the national road toll. According to the Australian Bureau of Statistics, 477,800 people experienced a work‑related injury or illness during the twelve months ending September 2000. More than 15 serious injuries occur every hour.

These deaths and injuries are a result of hazards in the workplace, not the genetic predisposition of workers. These deaths, injury and diseases are preventable—[The National Occupational Health and Safety Commission] claims that 97% of work‑related deaths, injuries, and diseases are preventable—by removing the hazards from the working environment. That Australia continues to suffer such high rates of workplace injury and diseases is because not enough is being done by employers to remove hazards or by governments to enforce the health and safety laws. Genetic testing of job applicants and employees will do nothing to alleviate this situation, but will put them at risk of discrimination.^[45]

33.39 Dr Paul Henman commented on this potential use of genetic information:

A possible consideration of genetic information by employers relates to claims for workers compensation that may involve a genetic component. This is a more complex matter as a workplace injury may combine with a genetic predisposition to a specific injury. In this scenario, it would only be appropriate (if at all) for the employee’s genetic information to be made available when a claim for worker’s compensation is made. This will enable a court to assess the extent to which an injury results from a workplace activity or from a pre-existing condition.^[46]

33.40 The Australian Manufacturing Workers’ Union (AMWU) commented that workers’ compensation legislation was introduced as social legislation. In relation to medical examinations, the AMWU commented:

The abuse of third parties gaining access to private medical information, during workers compensation processes, unfortunately is not uncommon. Often injured workers sign off on general medical release forms, that allow a person’s complete medical history to be accessible to the insurer or rehabilitation persons. Misuse of this information does occur, for example an individual who had been a victim of sexual assault had this history made known to her employer during a claim for work related post traumatic stress. If such abuses of medical history can occur in such cases, the AMWU sees no reason why breaches of privacy would not happen with genetic information.^[47]

33.41 The Law Institute of Victoria commented on the risk that juries might give undue weight to evidence of a worker’s genetic predisposition in this context:

There is a risk that genetic testing will confuse the legal issues in a claim. Claims for personal injury include aggravating factors and not just sole causes of an injury. Where an asymptomatic person is injured but is shown to have a genetic predisposition for a particular condition, this could unduly influence a jury about the actual cause of the condition … Where genetic predisposition is introduced, people are likely to impose a reverse egg shell skull rule. That is, person X was vulnerable, but rather than this increasing the likelihood that employer Y’s actions or negligence caused X’s injury, X’s vulnerability will be interpreted to mean that X would have developed the condition anyway so Y will not be held responsible.^[48]

33.42 The Institute of Actuaries of Australia commented that a worker’s genetic susceptibility to a certain disease or injury might be treated as a form of ‘contributory negligence’ in any claim for damages.

In workers’ compensation it may be necessary to examine whether there has been ‘contributory negligence’ by a claimant who has been exposed to a hazard to which he or she knew they had a higher susceptibility due to genetic factors or other factors. IAAust considers that relevant information, including genetic information, that is known to the claimant should be fully disclosed to a workers’ compensation insurer according to the doctrine of utmost good faith, as mandated by the Insurance Contracts Act 1984.^[49]

33.43 Finally, the National Council of Women Australia submitted that employers could obtain a ‘waiver’ from an employee in relation to workers’ compensation:

Employers who ascertain that an employee’s or applicant’s personal genetic information is potentially a problem in terms of Workers’ Compensation could add a waiver clause but still employ the person. This would be fair to both parties … An employer should not have access to a job applicant’s genetic information for occupational health and safety reasons because the concern on the part of the employer that his insurance premiums might rise if he has someone afflicted can be allayed by again putting in a waiver ‘if at the time any symptoms develop from the situation of the environment, it is established that the genetic test results prior to employment showed a predisposition, there is no insurance cover’.^[50]

Inquiry’s views

33.44 The Inquiry considers that the collection and use of genetic information in this context should be the subject of independent oversight. In particular, oversight is necessary to ensure that injured workers are not subjected to genetic tests unless those tests are objectively considered to be appropriate and necessary, and are appropriately interpreted.

33.45 The Inquiry does not support the approach suggested by the National Council of Women Australia or the Institute of Actuaries of Australia. Workers’ compensation is based on the principle of ‘no fault’ liability to ensure the universal coverage of workers who are injured or killed in the context of their employment. Currently, insurance contracts entered into for the purposes of a law dealing with workers’ compensation are expressly excluded from the Insurance Contracts Act 1984 (Cth).^[51] Both the provision of ‘waivers’ of liability for employers who employ ‘susceptible’ workers, and the introduction of a duty of ‘utmost good faith’ in relation to workers’ genetic status, would significantly undermine the philosophy underlying the existing framework.

33.46 The Heads of Workplace Safety and Compensation Authorities (HWSCA) is a group comprising the chief executives (or their representatives) of the peak bodies responsible for the regulation of workers compensation and occupational health and safety in Australia and New Zealand. The HWSCA’s objectives include: to develop initiatives and promote consistency of scheme design and scheme administration; to coordinate the development and implementation of initiatives of interest or relevance to multiple jurisdictions; and to liaise with other national bodies to progress issues of national significance or priority to workers’ compensation authorities.^[52]

33.47 The Inquiry recommends that the Human Genetics Commission of Australia, in consultation with the HWSCA, should review the use of genetic information in relation to workers’ compensation claims, and should develop a policy regarding the appropriate use of genetic information in relation to workers’ compensation claims. The policy should address the use of family medical history and genetic test information in determining the employment contribution to any injury arising out of or in the course of employment.