Does a Section 66 claim survive after death?

Case Law Update

Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017] NSWSC 1587

The Supreme Court of New South Wales handed down a decision on 22 November 2017 that will have significant implications on future claims for Workers Compensation where a serious injury has occurred resulting in death.

In an application for Judicial Review of a decision of the Worker’s Compensation Appeal Panel brought by Hunter Quarries Pty Limited against the Estate of Mr Ryan Messenger, the Supreme Court found that compensation in circumstances where death follows shortly after a serious injury causing permanent impairment is payable under both sections 9 and 66 of the Workers Compensation Act (‘WCA’) 1987 (NSW).

The finding has, to some extent, solidified the meaning of the term “permanent impairment” for the purposes of sections 65 and 66 of the WCA 1987 (NSW) and section 322(1) of the Workplace Injury Management and WCA 1998 (NSW).

Both the Appeal Panel and the Workers Compensation Commission were parties to the proceedings.

Mr Messenger’s Estate opposed a motion brought by the State Insurance Regulatory Authority to be joined to the proceedings on the basis that the Authority had an interest in the outcome of the proceedings, and would advance submissions designed to assist Hunter Quarries. Schmidt J rejected the Estates submissions and granted leave for the Authority to appear Amicus Curiae.


Mr Messenger was a machine operator employed by Hunter Quarries Pty Limited who died at his workplace at Karuah Quarry on 9 September 2014. He suffered crush injuries to his chest when a 40-tonne excavator tipped over and crushed the cabin in which he was working. Colleagues who came to Mr Messenger’s aid found no pulse and he was later pronounced dead on arrival of emergency services. Mr Messenger’s injuries were such that death was inevitable, within a short time frame. This finding was not disturbed on Appeal.

Hunter Quarries accepted liability under the WCA 1987 (NSW) for compensation payable on death and reasonable funeral expenses. Mr Messenger’s Estate later made a claim under section 66 of the 1987 Act for Whole Person Impairment (WPI) which was resisted by Hunter Quarries.

Mr Messenger’s WPI was initially assessed by Dr Phillipa Harvey-Sutton to be 100%. She later reconsidered her assessment and reassessed Mr Messenger’s WPI to be 0%. On Appeal, the Appeal Panel found Mr Messenger’s WPI to be 100%.

The Appeal Panel’s Decision

The Appeal Panel concluded that Mr Messenger remained alive, albeit unconscious, for a period of a few minutes after the injurious event. It was highly probable that the respiratory system damage he suffered would, but for his death, have been with Mr Messenger for the remainder of his life. Thus, the permanent impairment he suffered was 100% at the time of the injury.

The Panel relied on a number of leading cases in its determination, including Bourke v State Train Authority (NSW) [1999] NSWCC 39, and Hiller v Gosford City Counsel (Compensation Court (NSW) 22 June 1998). The Panel also considered Ansett Australia v Dale [2001] NSWCA 314 which found that to introduce a precondition of survival for a significant period into section 66 of the 1987 Act would be to introduce a concept which was not contained in the legislative scheme.

The Appeal Panel considered itself bound by this finding in Dale and thus concluded that Mr Messenger’s whole person impairment was 100%.

Meaning of the term “permanent impairment”

The meaning of the term “permanent impairment” for the purposes of sections 65 and 66 of the WCA 1987 (NSW) and section 322(1) of the Workplace Injury Management and WCA 1998 (NSW) was fundamental in determining Mr Messenger’s entitlement to both limbs of compensation.

Hunter Quarries submitted that the term ‘permanent impairment’ does not encompass injury so serious that death would shortly follow. Mr Messenger’s estate submitted that the term encompasses, in either the short or long term, impairment so serious a worker cannot recover from it.

Schmidt J considered that if the conclusion is made whereby the definition of permanent impairment encompasses injury so extreme (of the kind for which the Estate contended) the scope of the Appeal is raised such that the Appeal Panel erred in its decision in deciding a question of fact on Appeal.

It was concluded the term “permanent impairment” is not concerned with the consequences of an impairment (whether that be imminent or delayed death or no effect on the injured worker’s lifespan at all). The term encompasses situations where a worker suffers an injury causing an impairment so serious that, despite treatment, they cannot recover from it. If the impairment caused by the injury is temporary, it is not a “permanent impairment”.

Such a construction of the meaning of permanent impairment has significant implications for employers, injured workers and the legislative scheme its self. The real issue is whether, when a worker sustains an injury resulting in death (compensable under section 9 of the 1987 Act), the worker is also compensable for non-economic loss under section 66 of the 1987 Act (as well as payment under section 25 to the worker’s dependants).

The Statutory Scheme

The 1987 Act

The 1987 Act provides compensation for workers who are injured and where death results for the worker’s dependants (section 25), including a lump sum death benefit of $750,000.00 and $66.60 per week per dependent child under 16 years and dependent child under the age of 21 years being a student.

Compensation for non-economic loss with respect to permanent impairment is payable under sections 65 and 66 of the Act where worker’s injury/injuries result in a permanent impairment greater than 10%. The amount of compensation payment depends on the degree of permanent impairment.

The 1998 Act

The 1998 Act deals with matters such as workplace injury management, the return to work following a workplace injury, the giving of notice, the administration of claims by insurers and the making of weekly compensation payments.

The 1987 Act provides that it is to be construed as if forming part of the 1998 Act. In the instance of inconsistency, under section 2A of the 1987 Act the 1998 Act prevails. Schmidt J referred to the objectives of the 1998 Act (also to be considered in the construction of the 1987 Act). Under section 3 (and most relevant of the objects in this case) is that the purpose of the act is it provide injured workers and their dependents with income support during incapacity, payment for permanent impairment or death and reasonable treatment and other expenses.

Double payment

The maximum amount of compensation for permanent impairment is payable once the degree of impairment is greater than 74%. The liability to pay compensation becomes payable at the time of the injury.

Schmidt J concluded that although a worker may not survive for a long enough period to actually receive any compensation under the 1987 Act, neither in section 66 or elsewhere does the Act provide that where an injurious event later results in death the worker’s entitlement to be paid benefits which accrue on injury is thereby extinguished. Such a construction of the Act does not result in “double payment” in respect of a worker’s death.

The statutory term must take its ordinary meaning

The term “permanent impairment” is not defined in the 1987 Act and so it must take its ordinary meaning. Under section 66(1) of the Act, “permanent impairment compensation is in addition to any other compensation under the Act”.

While the Act provides that no compensation is payable where permanent impairment is less than 10%, it does not provide that there is no compensation for permanent impairment in the event that death later results. Schmidt J concludes that the obligation to pay compensation for permanent impairment, even where death shortly follows, is part of the balance which has been struck in this legislative scheme.

Ambiguity and statutory history

Entitlement to compensation arises from injury to the worker. Had Parliament intended that where death follows shortly after an injury the worker would be considered not to have suffered a permanent injury and thus not be entitled to compensation they would have provided for that result. Schmidt J relies on the findings in Dale whereby a worker suffering severe brain damage, assessed at 100%, has later undergone surgery and certified brain dead as a result of Bronchopneumonia infection following a fracture. Whether the worker was entitled to compensation for non-economic loss was considered and it was found that notwithstanding the workers short period of survival the injury was permanent and compensable.

Mr Messenger’s Permanent Impairment

Schmidt J concluded that the injuries suffered by Mr Messenger fall under the meaning of the statutory phrase.

The crush to Mr Messenger’s chest had impaired his ability to breathe, but was not so severe that it killed him instantly. Schmidt J concluded that the term “permanent impairment” is not concerned with the fatality of an injury, but whether it has resulted in permanent, rather than temporary impairment.

It is only where the worker has not survived the injury so that no impairment is suffered that the question of the permanency of impairment does not arise.

Schmidt J thus concluded that the Appeal Panel was correct in concluding Mr Messenger’s impairment was permanent, entitling him to compensation under section 66, that entitlement arising under section 9. The assessment at 100% reflected that the impairment had later resulted in death.

Under section 328 (5) of the 1998 Act the initial medical assessment contained a “demonstrable error” and the Appeal Panel had the power to revoke the old certificate assessing Mr Messenger’s impairment at 0% and issues a new certificate assessing his impairment at 100%. There was no error in the Appeal Panel’s assessment of Mr Messenger’s impairment.

Thus, the application brought by Hunter Quarries Pty Limited was dismissed and the Appeal Panel decision maintained.

This decision has been appealed by Hunter Quarries Pty Limited and will be heard by the Court of Appeal later this year.

Prepared by:

Andrew Kemp (Principal Solicitor, Kemp & Co Lawyers) & Anja Ellwood, Solicitor & Jackson Gilbert, Solicitor

Should you require any further details please contact:

Andrew J. Kemp
Principal Solicitor
Kemp & Co Lawyers
Pphone: +61 2 9241 7799