Domestic Violence Becomes a Workers Comp Issue 8/6/20
The NSW Supreme Court has held that the children of a worker killed at home by her mentally ill partner in a domestic violence incident can have compensation.
It is good that the issue of domestic violence gets publicity and that the children get compensation. But it raises the issue of whether employers are seriously able to assess the domestic situation of all employees and then whether they can ever hope to intervene in them. Employers ran a long campaign not to have to pay for journey accidents, people injured on the way to work, on the basis that it was not a risk that they could control, yet which potentially might cause a big change in their insurance premiums and thus costs. If we want our employers to be concentrating on making their businesses efficient and looking for hazards in the workplaces that they do control, it is slightly dubious public policy to have them sniffing around about employees’ home life. This case is slightly unusual in that the employer was effectively a partnership bet ween the couple rather than having a distant employer, and the company had been deregistered which suggests some dysfunction But the money accessed was Workers Compensation insurance and this will affect premiums and potentially other work situations.
It is true that a lot needs to be done about the discovery and action on domestic violence. It is also true that mentally ill people need to live somewhere and that their carers are at risk. Judges faced with people in dire need of help such as the children in this situation search for answers, and the Workers Compensation insurance scheme is a source of such funds. But the precedent set is not a good one.
The same principle applies when a baby gets into trouble at birth and has long-term adverse effects. If the obstetrician is found to have erred, there is a lot of money to give the unfortunate infant. If he or she is not found to have erred, there is no money for the infant. So now the premiums for obstetricians are very high and some retire in consequence. 4 Corners ran a show on this issue some time ago and it turned out that one doctor was responsible for about 60% of the problem births in Western Australia and had declined to speak to the show. Wow- go after him! Who was he? The Professor at the biggest teaching hospital of course. Most of the difficult cases in the State were admitted under his name, and the staff of the hospital did their best with these cases.
What is needed is a compensation system that is no fault. Sometimes bad things happen. Sometimes people make mistakes. Sometimes big mistakes have small consequences and sometimes little mistakes have big consequences. With systems, it is not usually one person who makes a mistake, there are miscommunications, lack of clarity who was responsible, lack of availability of something or someone. Accident causation theory is now an academic discipline, but the legal profession has not really caught up, let alone the political system.
A lot needs to be done about domestic violence, but I am not sure that making it a workers compensation issue will do anything more than push it into the public eye and help these children. Employers and insurers will run a successful political campaign to change the law to exclude it. I am not often on the side of Workers Compensation insurers, but a better solution has to be found.