Civil Law

By Alexis Currier

12.11.21

Rust film set tragedy – a reminder about work health safety

One of Hollywood’s biggest stories over the past few weeks has been surrounding the tragedy that occurred on the movie set of “Rust”, an upcoming feature film starring Alec Baldwin. For those who haven’t been following the story, on 21 October 2021, Cinematographer Halyna Hutchins was killed and director Joel Souza was wounded when a gun that Alec Baldwin had been told was safe, fired a live bullet.[1] Whilst the exact details of what lead to this tragic outcome are still being investigated, this incident raises the question of what happens when an injury or death occurs at a workplace, and what legal remedies do family members have when something happened to their loved ones.

From Left: Halyna Hutchins, Joel Souza and Alec Baldwin.

This blog will discuss the position on workplace health and safety in the Australian Capital Territory, and the possible legal avenue for those who are injured at work, or for family members who lose a loved one.

Workplace Health and Safety regulation in the ACT

In the ACT, the legislation that covers workplace safety is the Work Health and Safety Act 2011 (“the WHS Act”). The WHS Act appoints the Work Health and Safety Commission as the Regulator, who’s role is to manage and administer the Office of the Work Health and Safety Commissioner. Together, the Regulator and the Office of Work Health and Safety Commissioner compromise WorkSafe ACT.[2]

WorkSafe ACT are responsible for the following duties, among others:

  • To advise and make recommendations to the Minister and report on the operation and effectiveness of the WHS Act.
  • To monitor and enforce compliance with the WHS ACT.
  • To provide advice and information on work health and safety to duty-holders under the WHS Act and the community.
  • To regulate workers compensation legislation.
  • To conduct and defend proceedings under the AHS Act before a court or tribunal.
  • To promote and support education and training on matter relating to work health and safety. [3]

If a death of a person, a serious injury or illness of a person or a dangerous incident occurs at a workplace, it must be reported to WorkSafe ACT.[4] You can also raise workplace concerns or complaint, including about psychosocial hazards with WorkSafe ACT (e.g. bullying).

What do I do if I am injured at work in the ACT?

In the ACT, employers have a responsibility to fulfil their work health and safety obligations, including holding a current workers’ compensation policy.[5] In the ACT, there is a workers compensation scheme that provides compensation and assistance for workers in recovering from any injuries that an employee suffers at work governed by the Workers Compensation Act 1951 (“Workers Compensation Act”). The Workers Compensation Act sets out all of the legislative provisions that govern the scheme, and how an employee and employer are required to progress and manage a workers compensation claim.

The first thing to do if you are injured at work is to notify your employer. Your employer will then notify their workers compensation insurer, and also report the incident to WorkSafe ACT.

You will then need to attend a doctor, and obtain an ACT Workers Compensation Medical Certificate, and provide this to your employer.

It is also important that you retain all receipts from any medical treatment that you obtain, including attending your GP, medication and other associated costs.

Seeking legal advice at the earliest juncture will also mean that you can have professional assistance in navigating your workers compensation claim and will be advantageous in obtaining the best result possible.

What does workers compensation cover?

Workers’ compensation covers an employee for injuries that occur at work. An injury is defined under the Workers Compensation Act as: “physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of the pre-existing injury.” [6]

Under workers compensation, an employee is entitled to:

  • Payment for wages while they are unable to work; and
  • Medical expenses and rehabilitation.

There are, however, limitations to what you can receive from workers compensation. Importantly, while a worker is completely incapacitated by a work-related injury, they are entitled to receive their average pre-injury weekly earnings for the first 26 weeks from the date of the injury. This can often mean that overtime will not be included in this calculation of ‘average weekly earnings.’ [7]

After the first 26 weeks, payments for lost wages will reduce.

If a worked suffers a permanent injury, they may be entitled to receive a lump sum payment as compensation for the permanent injury.

 Am I covered by workers compensation?

One important consideration is whether or not you are covered by workers compensation. In the ACT, a person must be considered to be a worker to be covered by the Workers Compensation Act. Chapter 3[8] provides a useful flowchart to assist in determining if a person is a worker:

If you are an ACT or Commonwealth public servant, you are covered for workers compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cwth).

As this process can be confusing, your lawyer can provide you with detailed advice regarding your entitlement to workers compensation in the ACT.

  What if someone dies as a result of a work-related injury?

If a work-related injury results in the death of a worker, that workers dependents are entitled to receive a lump sum payment, funeral expenses and other benefits.

Section 77 of the Workers Compensation Act sets out these entitlements as follows:

  • This section applies to the death of a worker for which compensation is payable under this Act.
  • The dependents of the worker are entitled to the following:
    1. A single lump sum payment of $539,002.37 wpi indexed to be divided between the dependants;
    2. for each dependent who is a child – weekly compensation of $148.23 wpi indexed;
    3. the funeral expenses of the worker to the maximum of $11,828.87 cpi indexed.

….

(6) If the worker did not have dependants, the personal representative of the worker is entitled to a maximum of $11,828.87 cpi indexed for the funeral expenses of the worker.

(7) In this section:

  1. WPI means the Wage Price Index published by the Australian Statistician.

If a worker dies at work, the family members may also have a claim for common law negligence or for dependency. If something like this affects your family, it is best to get in touch with a lawyer as soon as possible to discuss the options for receiving compensation.

Industrial Manslaughter in the ACT

On 5 August 20201, the ACT Legislative Assembly passed legislation to establish industrial manslaughter as an offence under ACT worker health and safety laws rather than under the Crimes Act 1900 (ACT).[9] Per section 34A of the WHS Act:

(1) A person commits an offence if—

 (a) the person conducts a business or undertaking, or is an officer of a person who conducts a business or undertaking; and

 (b) the person has a health and safety duty; and

 (c) the person engages in conduct; and

 (d) the conduct results in a breach of the health and safety duty; and

 (e) the conduct causes—

 (i) the death of a worker; or

 (ii) an injury to a worker and the injury later causes the death of the worker; or

 (iii) the death of another person; and

 (f) the person is reckless or negligent about causing the death of the worker or other person by the conduct.

Maximum penalty:

 (a) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—imprisonment for 20 years; or

 (b) in the case of an offence committed by a body corporate—$16 500 000.

The purpose of Industrial Manslaughter laws is to ensure that there is a deterrent for serious safety breaches that result in death, and to prevent workplace deaths and injuries.

Getting legal advice

Getting legal advice in relation to a claim for workers compensation. You may be entitled under the workers compensation scheme, but your lawyer can also advise you about whether you also have a claim for compensation under the common law which may allow you to have access to further damages.

If you or one of your loved ones find themselves injured at work, it is important that you obtain legal advice without delay. Your lawyer will be able to provide you with advice on the best way to approach your matter. The team at Aulich Civil Law are experts at navigating workers compensation claims and will provide you with compassionate guidance and support to assist you in obtaining the best outcome possible. If you need assistance, please contact the team on (02) 6279 4222.

[1] ‘Lawsuit filed against Alec Baldwin and Rust producers over fatal shooting of Halyna hutchins’, ABC News (online, 11 November 2021) <https://www.abc.net.au/news/2021-11-11/lawsuit-filed-agaisnt-alec-baldwin-rust-producers-over-shooting/100611358>.

[2] WorkSafe ACT, ‘About WorkSafe ACT’, WorkSafe ACT (Web Page) <https://www.worksafe.act.gov.au/about-worksafe-act>

[3] Ibid.

[4] WorkSafe ACT, ‘Notify WorkSafe ACT’, WorkSafe ACT (Web Page) < https://www.worksafe.act.gov.au/health-and-safety-portal/notify-worksafe>.

[5] WorkSafe ACT, ‘Workers compensation, WorkSafe ACT (Web Page) <https://www.worksafe.act.gov.au/workers-compensation>.

[6] Workers Compensation Act 1951, section 4.

[7] WorkSafe ACT, ‘Workers compensation, WorkSafe ACT (Web Page) <https://www.worksafe.act.gov.au/workers-compensation>.

[8] Workers Compensation Act 1951 (ACT), Chapter 3.

[9] ‘New industrial manslaughter laws to better protect works’, ACT Government (Web Page, 5 August 2021)https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/gentleman/2021/new-industrial-manslaughter-laws-to-better-protect-workers