Exposure to ultraviolet radiation - new liabilities for insurers and employers
By David Miller, Debbie Kaminskas and Vanessa Gulesserian
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
In New South Wales, the legislative responsibilities of employers are encapsulated in the Work Health & Safety Act (NSW) 2011. (For more information please see our earlier article, Uniform OH&S legislation extends duty of care and increases penalties.)
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.