Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 

Facts summary: 

A deceased worker, Mr Ryan  Messenger was employed by Hunter Quarries Pty Ltd, the Appellant. At the time of his injury, the deceased worker was operating an excavator when he suffered a crush injury to the upper part of his body rendering him unconscious and led to his death a few minutes later. Liability was accepted for the payment of death benefits pursuant to sections 25 and 26 of the 1987 Act.

The deceased estate also brought a claim for lump sum compensation under section 66 of the 1987 Act for permanent impairment suffered by the worker immediately prior to his death. The claim was declined and referred to an AMS for assessment who determined 100% whole person impairment (WPI). A reconsideration of the MAC was pursued by the respondent. It was determined that the deceased had not suffered any permanent impairment. A Medical Appeal Panel (MAP) overturned the finding that it was highly probable that the deceased’s injuries would have been permanent.

The Appellant made an Application to the Supreme Court for judicial review of the MAP’s decision. The issue to be determined was the interpretation of “permanent impairment” in the context of section 66 of the 1987 Act. Schmidt J upheld the decision the decision of the Medical Appeal Panel that the deceased had suffered a permanent impairment.

The Appeal

On appeal the issues were:

(i) Whether the expression “permanent impairment” used in sections 65 and 66 of the Workers Compensation Act and section 322(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) encompasses impairment so serious that death will inevitably follow within a short time frame;

(ii) Whether the primary judge should have concluded that the Appeal Panel erred in setting aside the “Reconsideration Medical Assessment Certificate”.

The Court of Appeal in a unanimous found that there was no entitlement to permanent impairment compensation pursuant to section 66 if the 1987 Act. The court set aside the orders made by the primary judge and the respondent’s claim for permanent impairment compensation was dismissed.

The court determined that an injury which results in death seconds or minutes later is not consistent with the expression “permanent impairment”.

In construing the meaning of “Permanent Impairment” the court considered the following:

  • Section 66(1) of the Workers Compensation Act1987 envisages a continuing life with a compromised ability to work and a compromised capacity for the enjoyment of life. If a person’s injuries are so severe that death is, in a practical sense, inevitable within a short period, the injury is described as fatal, not as resulting in an impairment: Basten JA at [7]
  • The term “permanent impairment” as used in sections 65 and 66 of the Workers Compensation Actinvolves some diminution in function experienced by a worker which is lasting or enduring. There must be some continued and enduring experience of living. The term does not encompass an impairment resulting from an injury so serious that death will inevitably follow, within a short time: Payne JA (Gleeson JA, Sackville AJA agreeing) at [63], [80], [95].
  • The purpose of s 66 of the Workers Compensation Act 1987(NSW) is to compensate an injured worker for the loss of quality of life caused by the workplace injury that will continue for the duration of the worker’s life. It is not a sensible or reasonable application of the provision to award compensation to an injured worker the duration of whose life is so circumscribed as to allow no meaningful benefit of the award of compensation to him or her and who had no awareness or consciousness of the loss of quality of life. Per Simpson AJA at [114].

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