Publications

Covid-19 claims resulting from the death of a worker or aged care resident

Published on May 22, 2020 by Julia Harrison and Paul Ohm

A significant consequence of the COVID-19 pandemic in NSW and worldwide has been the large number of fatalities in aged care homes.[1] To date, 19 residents of the Newmarch House in Sydney’s West have died as a result of COVID-19.[2] The disproportionate impact of the pandemic on the elderly evidenced around the world has many questioning what the standard of reasonable care may be in this unprecedented time and what potential claims may arise.

The Aged Care Regulator – the Aged Care Quality and Safety Commission – has already acted, issuing a notice to the Newmarch operator Anglicare saying it must demonstrate “the serious risk to care recipients at the service has been effectively addressed” .[3]

The Aged Care Royal Commission has also announced that it will specifically look at “the lessons from what has happened at Newmarch House”.[4]

An inquest is a likely response from the NSW Government to look at a number of these questions flowing from the Newmarch House case including:

• whether an appropriate standard of care was provided;
• whether the very sick should have been transferred to hospital where there was more appropriate and specialised medical treatment and critical care available such as an ICU and ventilators[5]; and,
• If not, why were they not transferred given the foreseeable risks?

If organisations have not taken adequate precautions to prevent people they are caring for from  contracting COVID-19, then these organisations do expose themselves to damages claims including from relatives who have suffered the loss of loved ones.

According to media reports and investigation into infection control procedures at Newmarch House has found that there are likely to have been breaches in infection control amongst staff of the facility.[6] Importantly, breaches such as these are likely to have resulted in an increase in residents and employees contracting the virus, and may even be proven to constitute negligence.

The United States and Canada have already seen a number of states provide immunity to aged care homes from negligence arising from their response to the COVID-19 pandemic through executive orders and legislation.[7]

It remains to be seen whether any such reforms will occur in NSW.

Death Benefits

Dependent family members of workers who have died as a result of contracting COVID-19 may be entitled to death benefit compensation. This may include a lump sum, funeral expenses and weekly payments for dependent children. In order to make such a claim it would need to be established that the employment of the deceased was a substantial contributing factor to them contracting the illness.

Nervous Shock

Damages for nervous shock may be available to close family members of a deceased worker or resident if the death was a result of negligence. In order to bring such a claim, family members will need to prove they sustained a recognised psychiatric disorder, injury or illness and that the aged care home breached their duty of care to the deceased.

Aged care homes have a duty of care to both their residents and employees and where injury and or death results from a failure to provide such care or as a result of a worker’s employment, a number of personal injury claims may arise.[8.]

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

Please contact Julia Harrison, Partner, or Paul Ohm, Special Counsel to discuss.