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In brief - Claims from sun related harm and disease increasing
in Australia
In early December 2011, the Cancer Council of Western Australia
released a report entitled Occupational exposure to ultraviolet (UV) radiation:
Workers' compensation claims paid in Australia
2000-2009. The report highlights an increasing trend in
claims from sun related injury and disease in Australia. Although
the report's focus is on occupational exposure and workers
compensation, its findings are also relevant to other areas of
insurance.
Workers' claims for sun related harm and disease
The report found that between 2000 and 2009 there were 1,360
workers compensation claims for sun related injury or disease made
in Australia, representing a total cost of $38.4 million.
Sun exposure causing injury and disease is increasingly
recognised as an occupational hazard, reinforcing the obligation of
employers to provide safe workplaces where there is UV
exposure.
Responsibility of employers to protect workers from risks of UV
exposure
Under the Act it is the responsibility of employers to ensure
(as far as reasonably practicable) that the health and safety of
workers is not compromised or put at risk through work carried out
as part of the employer's business. To ensure that employers
meet their legal obligations, the Cancer Council report suggests
that UV radiation be addressed as a workplace hazard.
It is also suggested that employers provide for the maintenance
of a safe and healthy work environment, as well as providing any
information, training, instruction or supervision necessary to
protect people from risks of UV exposure. Such recommendations may
inform a court's view of what is reasonably practicable.
It is also recognised that a worker must take reasonable care
for his or her own health and safety and ensure that they do not
adversely affect the health and safety of other people.
Increase in sun related claims and increase in quantum
Data provided by SafeWork
Australia corroborates the substantial increase in the number
of claims from 2000 to 2010 due to sun related injury and disease
in Australia. The data also depicts a significant increase in the
quantum of workers compensation claims, with total payments for
skin cancer claims alone doubling from $2 million in 2001-2002 to
$4 million in 2008-2009.
Aside from the liability for such payouts, the effects for
workplaces that flow from such claims include work time lost, legal
fees, time spent dealing with the claim and increased insurance
premiums.
Establishing causation in non-work related claims
In non-work related claims (for example, public liability claims
arising from the use of solariums), consideration needs to be given
to the terms of the Civil Liability Act (NSW) 2002 and, in particular, the
requirements to establish causation outlined in
section 5D.
In skin cancer cases, claimants may have difficultly
establishing factual causation as required by section 5D(1)(a) due
to multiple competing UV exposures. However, section 5D(2),
although seldom applied by the courts, provides that in
"exceptional circumstances", the courts have the ability
to extend liability to a defendant where factual causation cannot
be proved. (For more information please see our earlier article
A user's guide to the Civil Liability Act 2002 (NSW)).
Employers should develop and enforce sun protection
policies
Occupational exposure to UV radiation is a potential workplace
hazard. This, together with the legislative responsibilities of
employers to protect workers from harm, makes it important for
employers to develop and enforce effective sun protection policies
and procedures to help minimise the risk of exposure for their
workers.
A lack of such policies and procedures leaves employers
potentially liable to legal action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
