Section 66 – Compensation where death results shortly after injury

Case Law Update

24 September 2018

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

A recent Appeal to the New South Wales Court of Appeal brought by Hunter Quarries Pty Ltd has reversed the controversial decision of Schmidt J in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2017] NSWSC 1587 (see our previous article), who found that Mr Messenger, through his Estate, was entitled to compensation for his death as well as permanent impairment in circumstances where death resulted shortly after a severe workplace injury.


The Respondent, Mr Messenger, was killed at his workplace in 2014 when an excavator tipped over and crushed its cabin causing the Respondent to suffer a severe high force crush injury to his upper body. The Respondent died some minutes later, during which time he was unconscious.

Liability was accepted by Hunter Quarries Pty Ltd, the Appellant, for the Respondent’s death under sections 25 & 26 of the Worker’s Compensation Act 1987 (NSW) (“the 1987 Act”) and the Respondent’s dependents received a lump sum death benefit. The Respondent’s estate thereafter lodged a claim under Section 66 of the 1987 Act seeking compensation for ‘permanent impairment’ (“PI”) that was said to have been suffered by the Respondent minutes prior to his death.
The Respondent was referred to a medical assessment pursuant to section 293 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) and the Respondent was initially assessed as suffering PI of 100% however a ‘Reconsideration Medical Assessment Certificate’ was later issued concluding the Respondent had not suffered any PI.

The Respondent applied for a review to the Worker’s Compensation Commission Appeal Panel of the reconsidered assessment and in 2017 the Appeal Panel found that the Respondent had suffered 100% PI. Schmidt J in proceedings brought by the Appellant in the Supreme Court of New South Wales upheld the decision of the Appeal Panel that the Respondent had suffered 100% PI and awarded the Respondent’s estate compensation for PI as well as the lump sum death benefit.

The Appeal

The issues raised on Appeal by the Appellant were:

  1. Whether the primary judge erred in concluding that the expression ‘permanent impairment’ used in sections 65 & 66 of the 1987 Act and section 322(1) of the 1998 Act encompasses ‘impairment so serious that death will inevitably follow within a short time; and
  2. Whether the primary judge should have concluded that the Appeal Panel erred in setting aside the ‘Reconsideration Medical Assessment Certificate’.

In its unanimous decision the Court of Appeal set aside the orders made by Schmidt J on 22 November 2017 and thus set aside the decision of the Worker’s Compensation Commission Appeal Panel of 27 February 2017 to reverse the Reconsideration Medical Assessment Certificate. As such, the application to the Worker’s Compensation Commission by the Respondent seeking compensation for PI was dismissed.

The Appeal was heard on 25 May 2018 before Basten JA, Gleeson JA, Payne JA, Sackville AJA & Simpson AJA, who gave their reasons as follows.

Basten JA

Basten JA reasoned that section 66 of the 1987 Act functions to create an entitlement to lump sum compensation for non-economic loss for injury resulting in impairment. It specifies that such impairment must be ‘permanent’ and that the ‘degree’ of permanency must exceed 10%. Whilst the Respondent suffered injury arising out of the course of his employment, the term impairment describes a consequence of injury resulting in diminished abilities or capabilities to work or enjoy life. Where an injury is so severe that death results, that injury is described as fatal, not as resulting in impairment. Here, the brief period of the Respondent’s survival, together with his lack of consciousness, were important factors in this analysis. The concepts of death, incapacity and permanent impairment encompass ‘separate forms of loss and separate concomitant needs for compensation’ under the Act. It is inherent in the statutory context that ‘incapacity’ and ‘impairment’ carry with them temporal limits that are not expressed, but colour the ordinary meaning of the terms.

Payne JA

Payne JA gave detailed and extensive reasons for his decision. He found that the question of whether a worker had suffered ‘permanent impairment’ was an antecedent question of law arising prior to an assessment of the degree of that impairment. Whether impairment meets the description of permanent impairment will always involve an assessment of fact and degree, though there will always be a measurable unit of time between an injury and death. The language used by the legislation is an injury that results in a degree of permanent impairment. The question of permanency may only be determined subsequent the worker suffering his/her injury. Taking into account the overriding purpose and legislative context of the provision, the language employed conveys some diminution in function that is lasting or enduring, not impairment which lasts for only a few minutes or seconds nor an injury which renders a worker immediately unconscious for a few minutes before death. Payne JA concluded that the Reconsideration Medical Assessment Certificate contained the correct conclusion and it was an error of law for that conclusion to be set aside by the Appeal Panel.

Sackville AJA

Sackville AJA in noted that the expression is not defined in the legislation and whilst it is primarily associated with workers compensation entitlements its use is not confined to that purpose. Its usage connotes injury that has a debilitating effect on a person for an indefinite period. The legislative purpose supports the conclusion that a fatal injury where death results shortly after injury does not result in permanent impairment.

Gleeson JA

Gleeson JA agreed with Payne JA and the additional observations of Sackville AJA.

Simpson AJA

Simpson AJA preferred to characterise the question of PI as one of fact and not of law. The starting point of the legislation is to compensate an injured worker for the loss of quality of life caused by a workplace injury continuing for the duration of the worker’s life. It is not a reasonable application of the provision to award compensation to an injured worker whose circumstances allow no meaningful benefit to the compensation. Inevitability of death ought not to deprive a worker of the benefit of section 66 where duration of life while substantially impaired may be significant.


For the purposes of establishing whether an injury worker has suffered an impairment that is permanent for the purposes of the legislation, in circumstances where death results shortly after injury, consideration of the duration between the injury and death, the capacity of the worker during that period of impairment and the workers ability to meaningfully benefit from the compensation are all factors that will be taken in to account where determining whether a worker is entitled compensation for permanent impairment.

Prepared by Andrew J Kemp, Principal Solicitor and Anja Elwood, Solicitor

For further information please contact:

Andrew Kemp
Kemp & Co Lawyers
Level 3, 7 Bridge Street
Phone: 9241 7799
Fax: 9241 1178