Citation:  Sara v G & S Sara Pty Ltd [2021] NSWPIC 286

Summary

A seminal case has come out of the Personal Injury Commission which has confirmed that employers may be liable if their employees catch Covid-19 during the course of their employment. In the current context where employers are already struggling with the ever-changing laws surrounding Covid-19, this case is a reminder and cautionary tale to not put their employees in situations where they may be susceptible to contracting Covid-19.

The Facts

Mr Georges Sara (the deceased) and his wife (the Applicant) worked as directors of a dental company called G & S Sara Pty Ltd (the Respondent) as well as directors of Stoneglass Dental Laboratory Pty Ltd (Stoneglass Australia). Stoneglass Australia had expanded to the United States and the deceased was also made the Managing Director and President of Stoneglass Inc (Stoneglass US).

As part of the deceased’s work, he would often travel between Australia and the United States to demonstrate dental technology. On 15 July 2020, the deceased travelled from Sydney to New York for a work-related trip.  It is believed that he contracted Covid-19 between boarding his flight at Sydney Airport, transiting through San Francisco, and arriving in his accommodation in New York.

On 23 July 2020, the deceased was admitted to hospital and after several heart attacks and strokes, passed away on 21 November 2020.

The Applicant brought proceedings in the Personal Injury Commission seeking death benefits and medical expenses under the Workers Compensation Act 1987 (NSW) (the WCA).

The Issues

The paramount issue for the Commission to determine was whether the deceased was travelling in the course of his employment with the Respondent. The insurer argued that the deceased was not employed by the Respondent and that he was travelling to New York to undertake work with Stoneglass US.

The Decision

In determining whether the deceased was employed by the Respondent or Stoneglass US, Member John Harris noted that all his wages, payslips, tax returns and travel insurance policies were connected to the Respondent. Furthermore, the Commission found that the work trip from Sydney to New York was induced and encouraged by the Respondent and also benefited the Respondent.

Ultimately, Member Harris found that the deceased was engaged with and in the course of his employment with the Respondent when he contracted Covid-19. The Applicant was awarded death benefits in the amount of $834,200.00 as well as weekly payments and extensive medical expenses.

Lessons for Employers

This decision affirms longstanding authorities regarding what activities are encompassed within the phrase arising out of or in the course of employment.

However, in the context of the current worldwide pandemic, and any future resurgence, employers should be mindful of the potential for liability arising from diseases contracted during work related travel.

Employers should ensure implementation and communication of stringent safety protocols and further ensure that strict compliance is expected from workers as a necessary term of the employment contract, to avoid such risks where travel is required, particularly having regard to the presumptive legislation contained in s19B of the WCA.