Compensation decision

By Ashleigh Fielding | posted on March 15, 2019

THE City of Albany has said it will “honour its obligations” to the family of City volunteer firefighter John Fenwick who died in January 2016 during brigade activities, after the City went to the Supreme Court last week to clarify how much of Mr Fenwick’s compensation it was liable to pay.

On March 8, the City argued that of a $514,409.20 compensation figure, its insurer was liable to pay $40,854.33 and the State of WA was liable for $473,554.87.

The State disagreed, arguing the City’s insurer was liable for $339,664.37 and the State for $174,744.87.

The City submitted that “four points lead to a conclusion that the City’s insurer was not liable to pay compensation as a result of Mr Fenwick’s death”.

The points were “insurance under s 37(2) of the Bush Fires Act is required for injury only, and injury does not include death”; “‘death’ as provided for in s 37(6) of the Bush Fires Act is
a specified injury”; “the legislature has over a long time purposefully incorporated only certain clauses of schedule 1 of the Workers’ Compensation and Injury Management Act (WCIMA)
into the required insurance policies, and has chosen specifically not to do so for clause 1 to 5, which deal with death benefits” and; “‘specified injury’ compensation has its own regime under the Bush Fires Act and that obviates the necessity to also incorporate parallel non-incorporated substantive provisions of clause 1 of schedule 1 of WCIMA”.

Mr Fenwick had served as a volunteer firefighter since 1986 and was the City’s Chief Bushfire Control Officer from 2008 to 2014.

When he died after suffering a stroke, Mr Fenwick was the Fire Control Officer for the Kalgan Volunteer Bushfire Brigade.

“To ensure that our bushfire volunteers, including the Fenwick family, receive the benefits as outlined in the Fire and Emergency Services Act 1998 and Bush Fires Act 1954, the City sought clarification from the Supreme Court about the interpretation and intent,” City CEO Andrew Sharpe told The Weekender.

“As this matter has only recently concluded, our insurers are currently considering the decision.

“We will honour our obligations to the Fenwick family.”

The Supreme Court ruled in favour of the State’s argument.