From the silent voice of death come the soundest lessons in life

Life as you know it has taken a frightening turn.  From the moment you’ve been confronted with the news about your loved one, the way you see this world is forever changed.

There is no choice in which direction we travel here.  A workplace fatality becomes seeped in complex legal issues from the moment a worker loses his life.

For those who are close to that worker, the pain and anguish has only just begun.  It is the most tragic and unforgiving reality of all.  The truth is that our justice system and the lengthy and arduous processes is brutal.  There will be many more challenges ahead.  There will be more pain - endless frustration, confusion and unanswered questions.  That’s the reality for many families who find themselves suddenly facing a workplace death.

Until this time, many of us may not have given our legal system much thought - beyond the basic understanding that, well ... It is ‘there’.  There’s a certain level of comfort in that isn’t there?  To believe in something because it offers peace of mind.  After all, what would be the point of a justice system if those that suffer at the hands of others are not dealt with adequately?  And what is ‘adequate’?  Who determines the price of a human life?  How do you place a value on a child’s broken heart because Daddy can’t tuck her into bed anymore?  

Once the initial shock begins to subside there will be a million questions.  

How did this happen?  Why is there an investigation?  Why can’t I know what they have found?  Who do I get these answers from?  How long does this all take?

I wish there was a straight forward answer to these questions, but sadly there isn’t.  There’s a legal process that must be followed and it is slow - insensitive.

What we do know is that all workplace deaths are investigated.  It’s very likely the first on the scene will be the Police and they will hopefully cordon off the area where the worker was working.  It is the job of the Police to notify family members, so they will be gathering contact information and preparing to deliver the tragic news to some unsuspecting family.  

SafeWork SA will most likely now also be on the scene.  This is the Government Department responsible for investigating the circumstances that led to the accident.  The Coroner will take delivery of the worker’s body and perform many and varied tests to determine both the cause of death and also to rule out other possible underlying conditions that may have attributed to the death (for example: heart conditions / stroke etc).  The deceased worker will also undergo a vast number of tests to rule out drugs and alcohol as other possible factors.

WorkCover will also quickly determine whether the worker had dependants and whether they are going to have to pay out any entitlements.  If the deceased worker had no dependants then at best, WorkCover will only cover funeral expenses.  There are no common law rights for families who have lost a loved one in an industrial accident.  This means, very simply - the employer is protected from being sued for damages.  There are one or two exceptions to this but in general, at least here in South Australia - that is what we have.

If the company is to be charged for failing to provide a safe workplace, this will take place in the South Australian Industrial Courts.  The vast majority of cases relating to the death of a worker (in fact all to date) are referred to the courts as a ‘Summary Offence’.   That meaning, any negligence that may have attributed to a worker’s death is not regarded as seriously as a charge of manslaughter for example.  

Much of this is will take time - some years at best.  If the company is made up of decent, compassionate people, hopefully they will co-operate and ensure that the process is as speedy as it can be.  Unfortunately, management attitudes vary a great deal and sadly too many will look for a means to lessen their damages.

It is without question a truly merciless journey for those who are in the grips of grief, loss and heartache.  You could be forgiven for thinking this all sounds a little bleak - unimaginable ... unreal.  We at VOID wish we could offer something more reassuring - but we have all learned that being prepared helps a little.  It’s like - if you can see someone take a swing at you before it comes, you have some hope of ducking and avoiding the impact.  It’s fair to ask, at this point with all the tragedy and grief already at your door, why would the people who have done nothing wrong be expected to protect themselves from the justice system?  

Because our system, first and foremost, is designed to ensure the accused is innocent until proven guilty.   Our Crown Solicitors do a fantastic job with their limited resources.  Unfortunately, in matters like these, companies can and do employ the most aggressive legal minds possible.  A guilty plea is ideal - it saves everyone a lot of time and money.  In order to entice a plea, the penalties need to be low enough - the low penalty becomes the carrot.  The lenient sentences become the bench mark.  The deceased worker gets lost in the mix.  

None of this means it will always be like this.  Politicians may write these laws but its people like us that push for change.  We will have change - someday we will.