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

Bright lines, chimeras and permanent impairment – The NSW Court of Appeal finds impairment arising as a result of an injury does not give rise to an entitlement to permanent impairment compensation under section 66 of the Workers Compensation Act where the injury is so serious that death will inevitably follow within a few minutes.

On 16 August 2018 the NSW Court of Appeal unanimously allowed an appeal against the decision of Justice Schmidt awarding permanent impairment compensation to the Estate of an injured worker who died within a few minutes of suffering a workplace injury.

In allowing the appeal the Court of Appeal found there was no entitlement to permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (WCA) where a workplace injury was so serious that death inevitably followed within a few minutes.

In reaching this decision the Court of Appeal considered the meaning of the phrase “permanent impairment” as found in section 66 of the WCA. Section 66 relevantly provides that a worker who receives an injury that results in permanent impairment greater than 10% is entitled to receive compensation for that permanent impairment. The term “permanent impairment” is not defined in the WCA or the Workplace Injury Management and Workers Compensation Act 1998.

The Court found the phrase “permanent impairment” encompassed a temporal element involving some continued and enduring experience of living. The term did not encompass impairment resulting from an injury so serious that death inevitably followed within a few minutes.

To explain the decision it is necessary to recount, briefly, the tragic facts of the matter. On 9 September 2014 Mr Messenger suffered a fatal crush injury to his chest when the excavator he was operating tipped on its side. Mr Messenger died within a few minutes of this incident occurring, during which time he was unconscious. The autopsy report indicated his injuries consisted of multiple rib fractures and a T12 vertebra fracture with non specific signs of asphyxiation.

It was not disputed that Mr Messenger’s death resulted from this injury, or that the injury arose in the course of his employment. As a result Mr Messenger’s eligible dependants were paid a lump sum death benefit under section 25 of the WCA ($510,800) as well as funeral expenses under section 26.

The Estate subsequently sought permanent impairment compensation under section 66 of the WCA and the question as to the degree of permanent impairment arising from the 9 September 2014 injury was referred to an Approved Medical Specialist (AMS).

The AMS initially found the degree of permanent impairment as a result of the injury was 100%. Following a reconsideration of this decision the AMS concluded the injuries suffered by Mr Messenger were not permanent because death was inevitable within a very short time frame of the injury occurring. As a result the degree of permanent impairment was 0%.

The Estate appealed and the matter was referred to a Medical Appeal Panel (MAP). The MAP found the impairment resulting from the injury was permanent as the damage caused to Mr Messenger’s respiratory system would be with him for the rest of his life. A new MAC was issued certifying the degree of permanent impairment as a result of the injury was 100%.

The employer sought judicial review of the decision of the MAP and the matter came before Justice Schmidt of the Supreme Court. Justice Schmidt dismissed the appeal finding that the phrase “permanent impairment” was not concerned with the consequences of impairment on a worker’s lifespan.

The employer appealed and the matter came before the NSW Court of Appeal.

In a unanimous decision the Court of Appeal found there was no entitlement to permanent impairment compensation under section 66 of the WCA in the circumstances of the present case. In arriving at this conclusion the Court considered the meaning of the term “permanent impairment” and found:

• The term “permanent impairment” involves some diminution in function which is lasting or enduring (Payne JA at [63]);
• The phrase “permanent impairment” involved a temporal element and did not encompass an impairment resulting from an injury so serious that death would inevitably follow, within a few minutes (Payne JA [73, 76-77, 80 and 96]);
• The question as to whether a worker has suffered “permanent impairment” is an antecedent question of law which arises prior to determining the degree of permanent impairment resulting from an injury (Payne JA at [67-68]);
• Whether impairment is “permanent” involves matters of fact and degree. The trial judge accepted (correctly) that where death was “instantaneous” as a result of injury impairment could not be permanent. However, as a matter of law, section 33 of the Human Tissue Act 1983 (NSW) defined death as occurring when there is irreversible cessation of all function of the brain or circulation of blood in the body. Given there would always be a measurable unit of time, be it seconds or more minute fractions of time, between an injury and death, there was no such thing as “instantaneous” death and the notion that permanent impairment resulted where life extended for only a short period of time after an injury was rejected (Payne JA at [74-77]);
• It was not possible to define the boundaries of when impairment was considered “permanent” under section 66 (Simpson AJA at [115]) and there was no “bright line answer” determining whether an injury which results in death does or does not give rise to permanent impairment (Payne JA at [97]);
• Such certainty was not possible given the fact-sensitive nature of injuries which rapidly result in death. However, the trial judge’s finding that permanent impairment did not arise where death is “instantaneous” was, for the reasons noted above,” a chimera” (Payne JA at [97]);
• In considering whether impairment resulting from an injury was permanent, relevant considerations may include the length of time for which the injured person survived the injury; whether the injured person regained consciousness; and the extent to which the person was aware of a reduced quality of life (Basten JA at [14]); and
• In the circumstances of the present case, Mr Messenger had not suffered “permanent impairment” within the meaning of section 66 of the WCA and the decision of the trial judge and MAP were, accordingly, set aside.

While the decision of the five Justices (Basten JA, Gleeson JA, Payne JA, Sackville AJA, and Simpson AJA) to allow the appeal was unanimous the reasoning adopted by their Honours was nuanced and differed subtly in certain aspects.

Simpson AJA, for example, considered the concept of the “inevitability” of death following injury was not relevant to the issue to be determined. She also considered it had the potential to distract decision makers’ in future difficult cases. The key determining issue in the present case was the fact that death followed within such a short period of time of the injury. As a result the injury could not be said to have any meaningful impact on the deceased’s quality of life, nor could compensation provide the deceased with any meaningful benefit.

Her Honour also expressed reservations regarding Payne JA’s finding that the question of whether a worker suffered permanent impairment was an antecedent question of law. She considered it was more correctly classified as a question of fact.

As a result of the decision of the Court of Appeal permanent impairment compensation under section 66 of the WCA will not be payable where a workplace injury is so serious that death results within a short time frame.

As the decision of the Court of Appeal makes clear, determining whether the time frame between injury and death is sufficient to give rise to permanent impairment is a fact sensitive issue. Close consideration will need to be given to the facts of each individual case before determining whether a workplace injury resulting in death gives rise to permanent impairment.

Relevant factors to consider are likely to include the length of time between injury and death; whether there was a continued and enduring experience of living; whether the injured person was conscious or regained consciousness at any time; and the extent to which the injured person was aware or conscious of a loss of quality of life.

This article was written by Jenne Tzavaras, Partner and Chris Lehmann, Special Counsel.