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WIRO Wire | Case Update

Practitioners may be interested to read the Court of Appeal decision handed down as recently as today in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178.

No less than five justices of appeal heard the case, although neither the Chief Justice nor the President of the Court of Appeal were present.

Facts in brief:

A worker died shortly after receiving a severe crush injury to the upper body. He was rendered unconscious immediately and died a few minutes later. The appellant accepted liability for payment of death benefits pursuant to sections 25 and 26 of the 1987 Act. A claim for lump sum compensation under section 66 of the 1987 Act was made by the worker’s estate. The worker’s estate succeeded at first instance. The Court of Appeal overturned the award under section 66 on various grounds, primary among them being a perception that an “impairment” requires the ability to appreciate the loss of quality of life suffered, whereas an unconscious person cannot do so (per Simpson, AJA at 114) and that the Act distinguishes between death and impairment in such a way that it must follow that a worker cannot be compensated for both (per Basten, JA at 7-14). Payne, JA took the view that “permanent impairment” was a form of words requiring a lasting or enduring loss of function, not a loss suffered for such a short time that it cannot amount to “permanent impairment” (at 62-63).


1. Appeal allowed;

2. Set aside the order made by the primary judge on 22 November 2017 and in lieu thereof make the following orders:

(a) Application allowed;

(b) Set aside the decision of the Workers Compensation Commission Appeal Panel dated 27 February 2017;

(c) Order that the application to the Workers Compensation Commission Appeal Panel be dismissed.

The text below has largely been extracted from the headnote.

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 (per Basten JA, Gleeson JA, Payne JA, Sackville AJA and Simpson AJA) held, allowing the appeal:

In relation to issue (i),

Per Basten JA:

Section 66(1) of the Workers Compensation Act 1987 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: [7] 

Under the Workers Compensation Act the concepts of death, incapacity and permanent impairment encompass separate forms of loss and separate concomitant needs for compensation. It is inherent in the statutory context that “incapacity” and “impairment” carry with them temporal limits which may not be expressed but nevertheless colour the ordinary meaning of those terms: [12] 

Workers Compensation Act 1987 (NSW), ss 9, 22, 66; Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 3 applied. 

The ordinary meaning of impairment does not properly apply to the circumstances of Mr Messenger in the brief period of unconsciousness between his fatal accident and his death: [14]

Per Payne JA (Gleeson JA, Sackville AJA agreeing):

The term “permanent impairment” as used in sections 65 and 66 of the Workers Compensation Act involves 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: [63], [80], [95].

Previous authority does not compel a different construction of the term “permanent impairment”: [83]-[85], [89], [93]-[94].

Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; TNT Australia Pty Ltd v Horne, As Executrix of the Estate of the Late Douglas Horne (1995) 36 NSWLR 630; Department of Agriculture (NSW) v Allen (2000) 20 NSWCCR 314; Ansett Australia v Dale [2001] NSWCA 314 distinguished.

Per Sackville AJA (Payne and Gleeson JJA agreeing):

In the absence of contextual indications to the contrary, the expression “permanent impairment” is not apt to describe the impact of an injury which is incompatible with the continuation of life and where the victim survives for a very short period, measured in seconds or a few minutes: [107]

Interpretation Act 1987 (NSW), s 35; Workers Compensation Act 1987 (NSW), ss 9, 65, 66; Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 3, 324 applied.

Per Simpson AJA:

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: [114]

Workers Compensation Act 1987 (NSW), s 66 applied.

In relation to issue (ii),

Per Payne JA (Basten and Gleeson JJA, Sackville and Simpson AJJA agreeing):

It was an error of law for the Appeal Panel to set the “Reconsideration Medical Assessment Certificate” aside. Mr Messenger had not suffered “permanent impairment” within the meaning of ss 65 and 66 of the Workers Compensation Act 1987 (NSW). The appeal should be allowed and the decision of the Appeal Panel should be set aside and the application to the Appeal Panel dismissed: [98]

For more information

Please contact Kim Garling, Workers Compensation Independent Review Officer on 13 9476 or by email at