Awarding Compensation for Permanent Impairment Sustained Minutes Before Death – Could It Happen Here?

The Supreme Court of NSW handed down its decision on November 2017 in the matter of Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017] NSWC 1587 allowing damages for permanent impairment resulting from fatal injuries which were sustained minutes before the worker’s death. The worker, Mr Messenger, sustained a fatal injury to his chest when an excavator he was operating tipped over and crushed the cabin in which he was working.

The claims

He was pronounced dead on arrival of the ambulance and police. His estate lodged a claim for compensation payable on the death of a worker which was accepted. The estate also lodged a claim for compensation resulting for whole person impairment sustained by the worker prior to his death. This claim was disputed by the employer.  Initially an Approved Medical Specialist found that the worker had sustained 100% permanent impairment prior to his death but then reassessed this to 0% after reconsidering the issue. This decision was appealed by the estate and the Medical Appeal Panel assessed the worker’s permanent impairment as 100%. The employer disputed this decision and brought an application for judicial review in the NSW Supreme Court.

The claim for permanent impairment was lodged pursuant to Section 66 Worker’s Compensation Act 1987 (NSW) which states:

A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

The employer’s submission

The crux of the employer’s submission was that compensation for permanent impairment ought not be allowed when it was those injuries which caused the worker’s death for which compensation was also payable. In effect, the employer submitted that this would lead to double-dipping.

The decision

After discussing various decisions relating to the definition of “permanent impairment” and the various legislative amendments affecting the relevant provisions in the Act, the Court held that the Act is not concerned with the consequence of the injury on the worker’s lifespan and for the purposes of the NSW legislation a worker sustains a permanent injury when they suffer impairment which is so serious that they cannot recover from it, even with treatment.  It was therefore that the Medical Appeal Panel had been correct in assessing the worker’s permanent injury as 100%.

The employer has confirmed that it will appeal this decision but if the decision is upheld, it will have a significant bearing on the cost of claims involving fatalities in NSW.

Could the same situation apply in WA?

Under the Workers’ Compensation and Injury Management Act 1981 (WA) the entitlement to lump sum compensation for permanent injury is governed by Section 31C. This section differs from its NSW counterpart in one significant aspect as it states:

…in respect of a permanent impairment from a compensable personal injury by accident, if the worker so elects during the lifetime of the worker as provided by section 31H in respect of an impairment mentioned in column 1 of Part 2 of the table in Schedule 2 …


The WA legislation would not, therefore, allow for the situation as in Hunter Quarries to apply and allow compensation for permanent impairment to be payable after the death of a worker, as the election to access compensation must be made during the lifetime of the worker.

What remains to be seen is, however, how the NSW legislature reacts to the appeal decision if the decision of the NSW Supreme Court is upheld. In that case it would seem that the options are either to accept the effect of the decision to increase the cost of fatal accidents to employers/insurers and the inevitable effect on premiums, or to consider amending the legislation, perhaps in line with what is in place in WA.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.