No s66 compensation payable when death follows shortly after an injury

Key Points
  • The preliminary question is whether permanent impairment or death results from injury.
  • Where a worker dies within minutes or seconds of the injurious event and is unconscious during that period, there can be no permanent impairment.
  • There must be some continued and enduring experience of living in order for there to be “permanent impairment”. ​

The court of appeal handed down its decision in Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 on 16 August 2018. It is a significant pronouncement by the full court confirming no s66 compensation is payable where death occurs within a short time after the injury.

Guidance is also provided for cases where an injured worker may survive for a longer period, but these cases will need to be determined on their particular facts. 

The court of appeal has determined that Mr Messenger’s estate is not entitled to a payment of $220,000 with respect to 100% whole person impairment (WPI) as a result of an injury that caused his death within a few minutes. 

On 9 September 2014 Mr Messenger was in the cabin of an excavator when it tipped on its side and he suffered a fatal crush injury to his chest.  Mr Messenger’s colleagues reached him within minutes and were not able to discern a pulse.  He was pronounced dead by ambulance staff when they arrived at the scene. 

It was accepted that Mr Messenger suffered from an injury within the meaning of s4 of the Workers Compensation Act 1987 (the Act) and his dependants were paid lump sum death benefits pursuant to s25 of the Act.

A claim was subsequently made for 100% WPI pursuant to s66 of the Act.  The appeal required the Court to examine whether permanent impairment occurred during the period between his injury and his death.

The Court ultimately determined that the primary judge erred in finding there was permanent impairment. They found that in circumstances where within a short time frame there is death following the injury the requirements of permanent impairment will not be met.

The Court’s decision is given unanimously. It sends a collective message that permanent impairment will only occur when there is some lasting and enduring effects of the injury. There must be some disability which is experienced, at least to some degree, by the worker before death.   

Their Honours have made it clear that  what needs to be considered will include;

  • the length of time the worker survives,
  • whether the worker ever regains consciousness, and
  • consideration of what is encompassed within the concept of non-economic loss

The decision provides guidance for claims where the worker survives longer, such as  on life support or in a coma. Expert medical opinion will be required to address whether the worker was able to cognitively experience any impairment or reduction in functionality.

The decision indicates the determination of whether a worker has suffered permanent impairment is a ‘medical dispute’ in accordance with section 319(f) of the Workplace Injury Management and Workers Compensation Act 1998. Accordingly, all disputes relating to this preliminary question must proceed to assessment by an approved medical specialist.

The Court also dealt with the oft-quoted submission the Act is beneficial legislation and is therefore to be construed favourably for claimants. It highlighted this is but one purpose of the Act and it is not to be interpreted in such a way as to give a claimant the maximum possible compensation in every case.

Post by Casey Bray and Stewart Cameron 

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