“Tragically, five days after sustaining the burns, Ms Lucas died at Concord Repatriation General Hospital. The medical records refer to her death as being caused by burns,” the judgment, delivered on Wednesday, said.
In the lawsuit brought in the Federal Court by the NDIS Quality and Safeguards Commission last year, LiveBetter and the commission agreed that the provider had contravened the NDIS Act on 17 occasions.
Kyah Lucas later died at Concord Repatriation General Hospital.Credit: Kate Geraghty
“The contraventions were objectively extremely serious,” the judgment from Justice Elizabeth Raper said.
“LiveBetter’s failures were antithetical to [the] stated object of the statutory [NDIS] scheme, to protect and prevent Ms Lucas from harm arising from unsafe supports and services provided under the scheme.
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“The specific harm suffered by Ms Lucas was of the most acute kind, so too can it be said of the harm to Ms Lucas’ family … There are no words to properly express the degree of the harm suffered.”
An investigation by this masthead in 2018 revealed that parents and former staff were worried about LiveBetter’s safety protocols. The organisation’s former work health and safety co-ordinator, Ken Freedman, was so concerned that he wrote an email to management in 2017, saying that it was only “a matter of time before LiveBetter [has] a fatal incident”.
LiveBetter at the time rejected wrongdoing and launched legal action against Freeman for blowing the whistle, which was later withdrawn.
Wednesday’s judgment said the $1.8 million penalty – which is the biggest to be issued to a disability provider for breaching the NDIS act – was issued as a deterrent to both LiveBetter and other providers. LiveBetter must also pay the NDIS Commission’s legal costs, in just the second civil case brought by the commission in its six-year history.
NDIS Minister Bill Shorten said he wanted to send a strong message that those entrusted with the care of scheme participants would be held to the highest standards.
“LiveBetter failed to look after Kyah Lucas. She was a vulnerable woman who needed support, safeguarding and care,” he said.
Acting Commissioner Michael Phelan said the court’s decision should be a warning. “The findings from this proceeding put all NDIS providers on notice that they need to pick up their game and ensure their staff are properly trained and highly competent,” he said.
“All disability providers and support workers must have safety front of mind when it comes to supporting people with disability.”
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A spokeswoman for LiveBetter, which received $40.5 million in government revenue last year, said it accepted the outcome of the legal process and would offer its full support to Lucas’ family.
“This is a very significant penalty that reflects the seriousness of the circumstance surrounding Kyah’s death,” it said.
“Kyah’s death is a tragedy that has impacted all of us and our deepest sympathies remain with her family.”
She said LiveBetter had restructured its governance to provide greater oversight, dedicated additional resources to training frontline staff, and implemented strict procedures around safe bathing and in-home risk assessment.
