Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger

[2017] NSWSC 1587

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

6 September 2017

Date of orders:

22 November 2017

Decision date:

22 November 2017

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

Proceedings dismissed with an order for costs in favour of the Estate, the usual order being that costs as agreed or assessed follow the event. Unless the parties approach to be heard within 7 days, that will be the Court’s order.

Catchwords:

ADMINISTRATIVE LAW – judicial review – determination of Appeal Panel of Workers Compensation Commission – appeal from Medical Assessor – whether the deceased suffered a permanent impairment – meaning of “permanent impairment” – scope of appeal and demonstrable error – medical specialist fell into demonstrable error – Appeal Panel acted within its jurisdiction

 

STATUTORY CONSTRUCTION – workers compensation scheme – meaning of “permanent impairment”

  PROCEDURE – notice of motion – amicus curiae – where amicus’ submissions advance the case of one party but not the other – leave granted

Legislation Cited:

Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
State Insurance and Care Governance Act 2015 (NSW)

Cases Cited:

Ansett Australia v Dale [2001] NSWCA 314
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Bourke v State Rail Authority (NSW) (1999) 18 NSWCCR 429
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318
TNT Australia Pty Limited v Horne (1995) 11 NSWCCR 497
Carson v Legal Services commissioner & Anor [2000] NSWCA 308
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Hillier v Gosford City Council (Compensation Court (NSW), Armitage J, 22 June 1998, unrep)
Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
SAS Trustee Corporation v Woollard [2014] NSWCA 75
State of New South Wales v Allen (2000) 20 NSWCCR 314
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531
Thompson v Gould & Co [1910] AC 409
Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2

Category:

Principal judgment

Parties:

Hunter Quarries Pty Limited (Plaintiff)
Alexandra Mexon as Administrator for the Estate of Ryan Messenger (First Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
Appeal Panel constituted of ? (Third Defendant)

Representation:

Counsel:
Ms SE Pritchard SC with Mr BK Lim (Plaintiff)
Mr M Robinson SC with Mr C Tanner (First Defendant)
Ms A Rao (Amicus curiae for State Insurance Regulatory Authority)

  Solicitors:
Hicksons (Plaintiff)
Carroll & O’Dea (First Defendant)

File Number(s):

2017/153929

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Workers Compensation Commission of New South Wales

Citation:

--

Date of Decision:

15 November 2016

Before:

Kousai Elali, Delegate of the Registrar andAppeal Panel comprised of Mr Ross Bell (Arbitrator), Dr Gregory Kaufman (Approved Medical Specialist) and Dr Mark Burns (Approved Medical Specialist)

File Number(s):

M2-007064/15

Judgment

1. Mr Messenger, a machine operator, died at his workplace at Karuah Quarry on 9 September 2014 from crush injuries to his chest, suffered while he was operating a 40 tonne excavator, which tipped over and crushed the cabin in which he was working. When colleagues went to his aid, they could find no pulse. When police and an ambulance attended, Mr Messenger was pronounced life extinct. Hunter Quarries accepted liability for the claims made under the Workers Compensation Act 1987 (NSW) for compensation payable on death and for reasonable funeral expenses. Mr Messenger’s estate later made a claim under s 66 of that Act, for whole person impairment. That claim was resisted.

2. The claim was referred to Dr Phillipa Harvey-Sutton, an approved medical specialist, for assessment of Mr Messenger’s degree of permanent impairment. The critical finding, which was not later disturbed on appeal, was that his injuries were such that death was inevitable, within a very short timeframe. Mr Messenger’s permanent impairment was initially assessed in April 2016 to be 100%. On reconsideration in August 2016, Dr Harvey-Sutton assessed it to be 0%.

3. On appeal, the Appeal Panel assessed Mr Messenger’s permanent impairment to be 100%. Hunter Quarries now challenges that conclusion, by this application for judicial review of the Appeal Panel’s decision.

Amicus Curiae

4. Both the Appeal Panel and the Workers Compensation Commission were joined as parties to the proceedings and have filed submitting appearances.

5. At the hearing I granted the State Insurance Regulatory Authority leave to appear as amicus, despite the opposition of the Estate. Hunter Quarries did not object to that leave being granted.

6. The Estate’s case was that the affidavit supporting the motion by which leave was sought, sworn by Mr Bollen the Executive Director of the State Insurance Regulatory Authority, disclosed that the Authority had an interest in the outcome of the proceedings and was not advancing impartial submissions, but rather submissions designed to assist Hunter Quarries. In the result the leave sought would be refused, because the Authority ought to be joined as a party.

7. I did not accept these submissions.

8. The Authority has the functions imposed by s 10 of the State Insurance and Care Governance Act2015 (NSW). There is no question that it has a different statutory role to those of the Panel or the Commission.

9. The Authority is not a Tribunal, but a body corporate whose functions include monitoring the performance of the insurance or compensation schemes in respect of which it provides services. The workers compensation scheme is one such scheme. Section 23 specifies that the Authority’s objectives include promoting the efficiency and viability of that scheme and promoting compliance with workers compensation legislation.

10. In Carson v Legal Services Commissioner & Anor [2000] NSWCA 308 at [289] it was observed:

“A court may allow a person to be heard as an amicus curiae. The functions of an amicus curiae and the circumstances in which persons may be heard in that role have been the subject of discussion in several cases without any clear definition emerging. The matter is entirely one for the discretion of the Court. Among the questions relevant to a decision whether to allow such appearances are whether the appearance is apt to assist the Court in the resolution of the proceedings (for example, by dealing with a point the parties have declined to argue), whether the appearance is in the interests of the parties, whether the appearance will occupy time unnecessarily and whether the appearance will add inappropriately to the cost of the proceedings. It is now generally recognised that the participation of a person in that role is a matter that depends on the circumstances of the particular case. See generally National Australia Bank Limited v Hokit Pty Limited (1996) 39 NSWLR 377 at 381.”

11. There the leave sought was refused, because it was concluded that the proposed intervention was not apt to assist the Court; it would occupy time unnecessarily; and would add, by lengthening the hearing, inappropriately to costs: at [290]. I did not consider that the Authority appearing as amicus would give rise to such difficulties in this case.

12. In Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2, leave to appear as amicus was also refused. French CJ with whom Crennan J agreed, observed at 312:

“The Court may be assisted where a prospective amicus curiae can present arguments on aspects of a matter before the Court which are otherwise unlikely to receive full or adequate treatment by the parties because (a) it is not in the interests of the parties to present argument on those aspects or (b) one or other of the parties lacks the resources to present full argument to the Court on them. In some cases it may be in the interests of the administration of justice that the Court have the benefit of a larger view of the matter before it than the parties are able or willing to offer.”

13. I was satisfied that in this case, the Authority could provide such assistance and that it did not have an interest to advance in the proceedings, which should justly result in it being made a party, even though its submissions tended to support the case advanced by Hunter Quarries. In my view it was not unusual for the submissions which an amicus advances, on a question of statutory construction of the kind which has arisen in this case, to tend to support the case which one party advances rather than the case of another.

14. That monetary consequences may flow from the conclusions reached about what is in issue was apparent. I was satisfied that this did not give the Authority an interest in the outcome of the proceedings, given its statutory functions. Nor could that be determinative of the question of whether or not it should be given leave to appear as amicus.

15. The submissions which the Authority sought to advance had been served on and responded to by the Estate. In part they addressed questions raised by the parties’ submissions, for example as to the relevant legislative history, which I would have asked myself and which the parties had not addressed.

16. In all of those circumstances, I was satisfied that the Authority’s appearance as amicus would assist the Court in resolving the issues which lay between the parties; that the leave sought would not occupy time unnecessarily; and that it would not add inappropriately to the cost of the proceedings.

17. Accordingly, the leave sought by the Authority was granted.

The issues

18. In issue was first, the meaning of the term “permanent impairment” used in ss 65 and 66 of the Workers Compensation Act and in s 322(1) of the Workplace Injury Management and Workers Compensation Act1998 (NSW).

19. On Hunter Quarries’ case, that term does not encompass impairment so serious that death will inevitably follow, within a short time frame. Mr Messenger’s estate contended that the term encompasses even impairments so serious that an injured worker cannot recover from them, in either the short or longer term.

20. Whether a second set of questions was raised by the summons, was in issue.

21. This further issue arises if it is concluded that the definition of permanent impairment does encompass extreme injury of the kind for which the Estate contended. That raises the scope of an appeal to an Appeal Panel under s 327(3)(d) of the 1998 Act; the meaning of the term “demonstrable error”; and whether the Appeal Panel erred in this case, in deciding a question of fact itself on appeal, in circumstances where the medical specialist had reached a finding that was open.

Conclusion

22. For reasons which I will explain, I am not satisfied that the construction of the term “permanent impairment” for which Hunter Quarries or the Authority contended, is correct. In my view, that term, as it is used in this legislative scheme, is not concerned with the consequence of an impairment for a worker’s lifespan, whether that be death which results in the short or longer term; a lifespan which is shortened because of the consequences of an impairment; or an impairment which has no affect at all on an injured worker’s lifespan.

23. What the term does encompass is relatively simple.

24. The legislative scheme is concerned with those who are injured at work. When a worker suffers an injury which causes an impairment so serious that her or she cannot recover from it, even with treatment, there is “permanent impairment”.

25. If the impairment which the injury causes is temporary, that is one from which the injured worker can recover, with time and/or treatment, it is not a “permanent impairment”.

The Appeal Panel’s decision

26. When considering the meaning of the term “permanent impairment” the Appeal Panel referred, amongst other authorities, to Bourke v State Rail Authority (NSW) (1999) 18 NSWCCR 429 and Hillier v Gosford City Council (Compensation Court (NSW), Armitage J, 22 June 1998, unrep).

27. These authorities did not deal with the statutory provisions which here arise for construction, but those contained in an earlier version of s 66 of the 1987 Act and the Table which then appeared at s 73. What arose for consideration in these authorities was the permanency of specified injury, rather than the permanency of impairment resulting from the injury. The conclusions reached in these authorities were that where death was inevitable within a very short timeframe, the statutory requirement as to permanency of injury was not satisfied.

28. A different conclusion was reached in Ansett Australia v Dale [2001] NSWCA 314, where it was concluded that under s 66 and the Table, a compensable injury had to be permanent: at [35]. At [42] it was held that the term “permanent”:

“… is not particularly apposite in the circumstance where death from injury is probable within a short time; but it is the term which the Act uses to describe an injury for which lump sum compensation may be recovered. If the injury is permanent in relation to the worker, that is sufficient. The term is not one which carries the meaning or implication that the worker should be expected to survive the injury, or to survive for a significant or a substantial or an indefinite period. That is not the nature of the word or the function which it plays in the Act.”

29. Thus it was held that to introduce a precondition of survival for a significant period would be to introduce a concept which was not contained in that legislative scheme. That would be “inconsistent with the principle upon which the Act proceeds, namely, that the rights of a worker accrue on the happening of the injury”: Dale at [44].

30. The Appeal Panel considered itself bound by Dale and thus concluded at [43]:

“It seems to the Panel that it can be taken from the Court of Appeal in Dale that:

a.    the formulation from Hillier and Bourke that permanency is not established ‘where death was inevitable within a very short time frame’ is not determinative of permanency; and,

b.    establishing permanency will depend on the facts of each matter even where the period between the injury and death is very short.”

31. The Appeal Panel also concluded at [49] and [57]:

“49.    The Panel notes that the Pathology report of 29 July 2015 and the report of Professor Ian Cameron dated 28 August 2015 leave no doubt that Mr Messenger suffered the destruction of his respiratory system in the accident. The Panel accepts that it is likely that he would have been unconscious in the short time between the incident and death. Mr Messenger remained alive, albeit unconscious, only for a period of a few minutes after the injurious incident. To adapt the terminology of Davies AJA, for Mr Messenger “it was highly probable that the” respiratory system damage “would be with the deceased for the remainder of his life”. It is the Panel’s view that the impairment was clear and permanent.

57.    After the injury the deceased worker’s respiratory impairment was 100 per cent. He then died as a result of the injury very soon after. The Panel is satisfied that the impairment of the respiratory system was not going to improve, and was quite unchangeable. Indeed, the impairment could not conceivably improve as it directly led to prompt demise. The relevant destruction was demonstrably “well stabilised and unlikely to change substantially in the next year with or without medical treatment.”

32. In the result the Appeal Panel concluded that Mr Messenger’s whole person impairment was 100% and that Dr Harvey Sutton’s August 2016 certificate had to be revoked and a new certificate provided.

What does “permanent impairment” mean?

33. As the Authority drew to attention, the construction over which the parties joined issue necessarily has consequences not only for employers and injured workers, but also for the workers compensation scheme itself. As discussed in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28, in construing legislation it is necessary to consider the practical consequences of giving a particular meaning to an Act.

34. The meaning of the statutory term which is in issue must be determined in accordance with the approach to statutory construction explained by Bathurst CJ in SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58]:

“As was said by the plurality in Alcan (NT)Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute.”

35. As became apparent from the cases which the parties respectively advanced, the real issue lying between them was whether, when a worker sustains an injury which is compensable under s 9 of the 1987 Act which results in the worker’s death, the employer is obliged to make both a payment to the worker or his or her estate, for compensation for non-economic loss under s 66 of the 1987 Act, as well as a payment under s 25 to the worker’s dependants, for compensation for the worker’s death.

The statutory scheme

The 1987 Act

36. The scheme of the 1987 Act is to provide for compensation of various kinds, for workers who receive an injury and, in cases where death results, for the worker’s dependants: s 9(1). Part 2 deals with compensation liability and Part 3 with the benefits payable under the Act. Division 1 of Part 3 “Compensation Benefits” deals with compensation payable on death.

Death

37. Section 25, which appears in Division 1, relevantly provides:

“25    Death of worker leaving dependants

(1)    If death results from an injury, the amount of compensation payable by the employer under this Act shall be:

(a)    the amount of $750,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and

(b)    in addition, an amount of $66.60 per week in respect of:

(i)    each dependent child of the worker under the age of 16 years, and

(ii)    each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.

(2)    Payments in respect of a dependent child under subsection (1) (b) shall continue:

(a)    except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or

(b)    in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.

(3)    The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).

(4)    If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:

(a)    is adjusted by the operation of Division 6, or

(b)    is adjusted by an amendment of this section,

the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.

(4A)   If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.

(5)    ...”

38. Apportionment of payments between and to dependants is dealt with in ss 28 to 31 and payments where there are no dependants, in s 32. In that case the compensation payable is paid “to the worker’s legal personal representative or, if there is no such representative, to the person to whom the payment of the expenses for which the compensation is payable is due”: s 32.

39. Provision is separately made in the 1987 Act for payment of funeral expenses: s 26. Compensation for the expense of transporting the deceased’s body is also provided for in s 27. It is not specified that such payments are to be made to dependants. Inferentially, they must be made to the worker’s estate, or perhaps, to whoever else may have borne those expenses. In either case, that will not necessarily be the dependants who are entitled to the compensation provided by s 25, in respect of the worker’s death.

Permanent impairment

40. Sections 65 and 66 of the 1987 Act appear in Division 4 “Compensation for non-economic loss”. Their current form was enacted by Schedules 3 and 4 of the Workers Compensation Legislation Amendment Act 2001 (NSW). They now relevantly provide:

“65    Determination of degree of permanent impairment

(1)    For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(2)    If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.

(3)    If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.

(4)   (Repealed)

66    Entitlement to compensation for permanent impairment

(1)     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.

Note.

No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

(1A)   Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

(2)    The amount of permanent impairment compensation is to be calculated as follows:

(a)   if the degree of permanent impairment is greater than 10% but not greater than 30%, the amount of permanent impairment compensation is to be calculated as follows:

$19,540 + [$2,940 x (D – 10)]

…

(h)   if the degree of permanent impairment is greater than 74%, the amount of permanent impairment compensation is $577,050,

where D is the number derived by expressing the degree of permanent impairment as D%.

(2A)   To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.

Example 1.

A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $25,420. If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $25,420. Under this subsection, that $25,420 will be increased by 5%, yielding $26,691.

Example 2.

A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $175,000. If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $175,000, or $116,666.67. Under this subsection, that $116,666.67 will be increased by 5%, yielding $122,500. The total compensation payable for the impairment will therefore be $180,833.33.

(3)   The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”

41. Section 322 of the 1998 Act provides for assessment of impairment, in accordance with published Guidelines, providing:

“322    Assessment of impairment

(1)    The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2)    Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3)    Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

Note. Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.

(4)    An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

42. Division 2 of Part 3 of the 1987 Act deals with weekly compensation payments to injured workers, by way of income support. Division 3 provides for compensation for medical, hospital and rehabilitation expenses. Division 4 provides for compensation for non-economic loss and Division 5 for compensation for property damage. Divisions 6, 6A and 6B deal with indexation of various payments. Division 7 deals with payment of benefits to workers and beneficiaries. Division 8 provides for reduction of benefits where additional or alternative compensation is payable, as prescribed by the Regulations. Division 9 deals with commutation of compensation.

43. Part 4 of the 1987 Act deals with uninsured liabilities, Part 5 with common law remedies, Part 7 with insurance, Part 8 with the protection of injured workers from dismissal and Part 10 with various miscellaneous matters.

The 1998 Act

44. The 1998 Act deals with various matters, relevantly in Chapter 3, with workplace injury management. Thereby a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries, is established: s 41.

45. Part 4 of Chapter 3 deals with workers compensation, including matters such as the giving of notices, the making of claims, administration of claims by insurers, the making of weekly compensation payments, restrictions on court proceedings and proceedings before the Workers Compensation Commission and the Compensation Court, medical examinations and disputes.

46. Section 322 appears in Part 7 “Medical Assessment” of Chapter 7 “New claims procedures”, which also provides for giving notice of injuries; making claims; how claims are to be dealt with, including in relation to claims for weekly payments, medical expenses, lump sum compensation and damages; enforcement of obligations; dispute determination; court proceedings; and mediation.

Objects

47. In construing these legislative schemes, it is necessary to bear in mind that s 2A of the 1987 Act provides that it is “to be construed with, and as if it formed part of, the 1998 Act” and that in the event of any inconsistency, the 1998 Act prevails.

48. The 1987 Act does not specify what its objects or purposes are, but the objectives of the 1998 Act are specified in s 3, which provides:

“3    System objectives

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:

(a)    to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,

(b)    to provide:

•   prompt treatment of injuries, and

•    effective and proactive management of injuries, and

•    necessary medical and vocational rehabilitation following injuries,

in order to assist injured workers and to promote their return to work as soon as possible,

(c)    to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

(d)    to be fair, affordable, and financially viable,

(e)    to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury.”

49. Given the provisions made in s 2A of the 1987 Act, these objectives must also be considered when it is construed.

Hunter Quarries’ approach to the construction of the term “permanent impairment”

50. The case advanced for Hunter Quarries was that the ordinary grammatical sense in which the word “permanent” is used in s 66 is “lasting indefinitely without change”, that carrying with it the connotation that an injury will not be permanent in the requisite sense, where death is inevitable, in “a short period of time”. The character of permanency is not denied, merely because death follows a short time after injury, but rather because death inevitably follows.

51. The term “permanent impairment” therefore refers to injury which will last indefinitely, without change and where death is not inevitable. Where it is inevitable, there is no linguistic sense in speaking of an injury causing permanent impairment, because it is death, not impairment which is caused by the injury and even if there is impairment, it is not permanent, because the consequence is death.

52. It was also argued that to conclude otherwise, would involve a deceased worker recovering both death benefits and permanent impairment compensation, which would involve double compensation for the same consequence of the one injury, which the 1987 and 1998 Acts cannot have contemplated.

53. The difficulty with this approach, it should immediately be observed, is that the 1987 Act expressly provides for dependants to be paid benefits in the event of the injured workers death, which do not depend on the worker not having earlier received benefits for the injury which has resulted in death. Further, the Act also does not contemplate that in the event that the worker has received such benefits, that on his or her death the dependants will not receive the death benefits for which the Act makes provision.

54. Either could have been easily provided. That neither has been, tells against the construction for which Hunter Quarries contended.

55. A further difficulty is that the gloss which its arguments sought to impose on the statutory language, namely, that there can be no “permanent impairment”, when death follows “a short time after injury”, because death is inevitable, would introduce ambiguity into the statute which the term itself does not encompass.

56. In my view, that is a good reason for being slow to adopt the construction for which Hunter Quarries contended.

The Authority’s approach to construction of the 1987 Act

57. The Authority supported Hunter Quarries’ approach as being correct and according with the legislative history. Thus the Authority submitted that the 2002 amendments to the 1987 Act, shifted the focus from loss and injury, as specified in the Table formerly provided in s 73, to a degree of permanent impairment of at least 10%, consequential on an injury.

58. On its case, the existence of such impairment must be assessed by expert medical assessors, in accordance with the provisions then introduced in Part 7. Such assessment depends on the severity of the loss of use or function which comprises the impairment. That has to be determined in accordance with the “NSW workers compensation guidelines for the evaluation of permanent impairment Fourth Edition 1 April 2016”: ss 322(1) and 376(1).

59. In the result, the Authority argued, the term “permanent impairment” connotes loss of utility or function in post-injury life. That could not be established by death alone. There must be some continued experience of living, which is enduring, in order for the impairment to be “permanent”. Further, the accrual of the worker’s right to compensation occurring on injury, did not answer the “anterior question”, of whether there had been permanent impairment, of the requisite degree.

60. Accordingly, it was argued, the conclusions reached in Dale were no longer binding or authoritative as to the meaning of “permanent impairment”, as it is used the current legislative scheme. Under the current statutory provisions, entitlement to non-economic loss is no longer merely dependent on injury, but also on assessment of the result of that injury.

61. In my view there are also a number of difficulties with this approach to the meaning of the statutory term, including the obvious, that neither s 65, nor s 66 provide for any “anterior question”, as to whether there has been any permanent impairment of the requisite degree. Section 9 provides that it is injury which entitles a worker to compensation, that right accruing on the happening of the injury, not after enduring experience of living.

62. Compensation of various kinds can follow such an injury, not only weekly and lump sum compensation for workers, but also medical, hospital and ambulance expenses and, if death results, compensation for dependants: s 9(1).

63. That in s 66 the Parliament did not used another ambiguous term, “continuous living which is enduring” as a criteria for eligibility to compensation for “permanent impairment”, is also a good reason for not introducing this ambiguous concept, when the term is construed.

The construction for which the Estate contended must be accepted

64. The Estate’s case that a worker may suffer a 100% “permanent impairment”, which attracts the maximum compensation provided for by s 66, even if death follows not long afterwards, must be accepted.

65. Impairment which finally results in death is impairment of the most serious kind which a work injury can cause, whether death results quickly, or after more prolonged suffering.

66. A worker may also, however, be killed instantly. It is only in that case, when the worker’s injury results in death, not impairment, that the statutory scheme does not provide for the worker to be compensated under s 66.

The 1987 Act does not provide for “double payment”

67. The liability imposed on employers to pay the various types of compensation provided for by the 1987 Act, arise on the happening of specified events, with maximum compensation for permanent impairment being payable, once the degree of permanent impairment is greater than 74%.

68. In issue is whether impairments, whatever they may be, which inevitably result in death shortly after the injury is sustained, fall within the term “permanent impairment”.

69. In the case of an injured worker, the liability to pay compensation, including for “permanent impairment”, arises at the time of injury: s 9(1). Conversely, the right to the benefit accrues to the worker at that time, s 9(1) providing as it does that upon suffering such an injury the worker “shall receive compensation”: Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 at 327; TNT Australia Pty Limited v Horne (1995) 11 NSWCCR 497 at 641.

70. When a worker suffers an injury which inevitably results in death, the worker may not survive for a long enough period to actually receive any of the compensation for which the Act provides, be that weekly payments, a lump sum benefit for permanent impairment, or medical, hospital or ambulance expenses. In such a case those benefits will thus form part of the worker’s estate. Neither in s 66 or elsewhere, however, does the Act provide that in the event that the injury also later results in death, the worker’s entitlement to be paid benefits which accrue on injury, is thereby extinguished.

71. In the case of the worker’s dependants, the entitlement to compensation arises on the worker’s death: s 9(1). They are not made subject to the worker not being entitled to any particular benefit.

72. Such dependants may not necessarily be the worker’s beneficiaries, either under a will or the statutory intestacy rules. Dependants may thus not be entitled, after the worker’s death, to a share of any of the compensation which the worker has received, or was entitled to receive upon injury, for the consequences of the injury which the worker suffered before death. The position of such beneficiaries may also be affected by orders made by the Court under the Succession Act 2006 (NSW).

73. It follows that contrary to the case advanced for Hunter Quarries, “double payment” in respect of a worker’s death does not result under this legislative scheme, if in a particular case a worker’s permanent injury also results in death, whenever that may occur.

74. The various statutory benefits are intended for different recipients, for what they have respectively suffered as the result of the worker’s injury. In the event of death, all of the compensation for which the 1987 Act provides, will not necessarily end up in the same hands.

75. It is in this context that the term “permanent impairment”, used as it is in both the 1987 and 1998 Acts, must be considered.

The use of the statutory term

76. In s 3 of the 1998 Act, the term “permanent impairment compensation” is defined to mean “compensation for permanent impairment under section 66 of the 1987 Act”. The term “permanent impairment” is not, however, defined in either Act and so it must thus take its ordinary meaning.

77. As Hunter Quarries submitted, “permanent” is defined in the Macquarie and Oxford Dictionaries respectively to mean:

“‘lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding’ (Macquarie Dictionary);

‘Continuing or designed to continue or last indefinitely without change; abiding, enduring, lasting; persistent. Opposed to temporary’ (Oxford English Dictionary).”

78. “Impairment” is there defined to mean:

“‘to make worse’ or ‘to alter for the worse; to damage’ (Macquarie Dictionary);

‘to make worse, less valuable, or weaker; to lessen injuriously; to damage, injure’ (Oxford English Dictionary).”

79. Section 66 specifies the circumstances in which the employer is obliged to pay compensation to the injured worker for non-economic loss, in the event that injured worker has suffered “permanent impairment “of more than 10%. In the event of dispute, s 65 requires that it be resolved by an approved medical specialist, in accordance with the provisions made in Chapter 7 of the 1998 Act.

80. Section 322 requires that whether the injury has caused a permanent impairment and its degree, be determined in accordance with the Workers Compensation Guidelines.

81. The cases advanced for Hunter Quarries and the Authority are not consistent with the provision made in s 66(1), that “[p]ermanent impairment compensation is in addition to any other compensation under this Act.” In the face of that provision, to construe s 66 as excepting the payment of such compensation, where the consequence of the impairment is later death (which results in compensation payable under s 25) would be directly contrary to Parliament’s intention. That intention is also expressed in the counterpart provision made in s 25(3).

79. That the 1987 Act does not contemplate that there will be no compensation for permanent impairment if death results, reflects the balance which has been struck in the Act, including in s 66 itself.

80. There it is provided in s 66(2)(a) that no compensation is payable for non-economic loss, unless the degree of permanent impairment is at least 10% and that the maximum available compensation for non-economic loss is fixed by reference to a degree of impairment greater than 74%: s 66(2)(h).

81. What s 66 does not provide, is that there is to be no compensation payable in the event that death later results, within a particular time frame, as it easily could have, if that had been intended.

82. While it is likely that the degree of a permanent impairment which results in death is 100%, compensation is provided for such a level of impairment in s 66 itself, and elsewhere, even though no reference is there made to death. In the case of workers infected with HIV or Aids, workers must have their degree of permanent impairment assessed to be 100%: s 67A.

83. That the Guidelines also make no reference to death as a consideration in assessing the degree of impairment which a worker has suffered, is also relevant to the conclusion that permanent impairment resulting in later death is not excluded from compensation. Nor, it would appear, does AMA 5, to which the Guidelines variously refer, although AMA 5 was not in evidence.

84. All of this supports the conclusion that the obligation to pay compensation for permanent impairment, even when death eventuates shortly after injury or when life does not endure, is simply a part of the balance which has been struck in this legislative scheme.

85. That under this statutory scheme, in the event of dispute, an approved medical specialist is to determine whether a worker has suffered a permanent impairment, applying the Guidelines issued under s 376 of the 1998 Act supports this conclusion, given that they are also not concerned with the consequences of impairment on a worker’s lifespan.

The proposed constructions impermissibly introduce ambiguity

89. Neither Hunter Quarries nor the Authority contended that the term “permanent impairment” excludes all impairments which inevitably lead to a worker’s death, only those where death followed “shortly after injury” or where the worker does not have an experience of continued living which endures. These are not phrases used in either the Act, the Guidelines or AMA 5. They are not necessarily interchangeable and what they might mean, was not addressed.

90. It is difficult to see that the answer to the question of what the statutory term “permanent impairment” means, is provided by adoption of another undefined and indeterminate term, which the Parliament has not seen fit to use in this legislative scheme.

91. To adopt the approach of either Hunter Quarries or the Authority, would require that words of limitation, which could easily have been provided in s 66 but were not, to be read into the section. As discussed in Thompson v Gould & Co [1910] AC 409 at 420 “[i]t is a strong thing to read into an Act of Parliament words which are not here, and in the absence of clear necessity it is a wrong thing to do”.

92. The necessity for reading such limitations into s 66 is not apparent, even given the purpose of this legislative scheme, beneficial as it undoubtedly is: TNT Australia v Horne at 640.

93. In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, McHugh JA identified the conditions in which missing words might be read into a statute, which had been formulated by Lord Diplock, observing at 302:

“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

94. His Honour took the same approach in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113.

95. In Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 it was observed at [39] that those conditions, with the third reformulated in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115, namely, that the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted, accord with the statements of principle in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26. Further, that it was right to consider that satisfaction of each of those conditions could be treated as a prerequisite, to reading the provision in question, as if it contained additional words.

96. Nevertheless, as discussed in Taylor at [40], even if those conditions are satisfied, “the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament, because altering the language of the provision in such a case may be "too far-reaching": Inco Europe at 115.

97. In this case I cannot see that any of these conditions are satisfied, or that the proposed reading into s 66 of the words of limitation for which either Hunter Quarries or the Authority contended, accords with the underlying Parliamentary intention.

98. That is confirmed when it is considered that in s 25, no exception is made for payment of compensation for death, in cases where an employer is obliged to pay the maximum compensation for the worker’s permanent impairment.

99. The other obvious difficulty with the adoption of the construction for which Hunter Quarries and the Authority contended is a practical one, introducing as they do, uncertainties which do not presently exist. For example, for how long after an injury which causes permanent impairment which proves to be fatal, would a worker have to survive, before an entitlement to compensation for permanent impairment arose under s9? Given that the worker’s entitlement to compensation arises on injury, the question might be better put by asking when is the entitlement is lost? How long is either “shortly” or “continuous experience of living which is enduring”? These problems take the case which Hunter Quarries and the Authority each advanced into the “too far reaching territory” discussed in Taylor, given the impractical consequences which would follow from the adoption of the limitations which they propose.

100. In my view, had the Parliament intended that in the event that death results shortly after the injury, the injured worker has not suffered a “permanent impairment”, Parliament would have expressly provided for that result.

101. That these concepts are not only not to be found in this statutory scheme, but do not have an obvious or fixed meaning, precludes their adoption on the construction of the statutory term. It is not for the Court to legislate for such exceptions to the obligations which the Parliament has imposed upon employers when it enacted ss 9, 25 and 66 in their current forms.

The statutory history supports these conclusions

102. It is the meaning of the composite term “permanent impairment”, used as it is in this statutory context, which arises for construction, not the concept of permanent injury, with which predecessor provisions in the 1987 Act were concerned.

103. Nevertheless, the conclusions I have reached are supported by the statutory history, including the conclusions reached in Dale, about the meaning of s 66, as it then provided. What there arose for consideration were circumstances where a worker had suffered brain damage on 31 October, which was assessed at 100%. He had undergone surgery and on 1 November, testing confirmed brain death, which was certified to have resulted from "Bronchopneumonia following Fractured Skull": Dale at [20]. Section 66 then provided:

“66 Compensation for permanent injuries

(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.”

104. It was explained at [27] - [28] that :

“27 The Table, which appears after s 73, provides, inter alia:-

Table

Compensation for permanent injuries

____________________________

Nature of injury Percentage of maximum amount payable

____________________________

…

Brain damage:

Permanent brain damage (being an

injury which is not or is not wholly an

injury otherwise compensable under

this Table) 0-100

28 Included in the Table are a number of interpretative clauses. Clause (a) provides, inter alia:-

(a) Where a range of percentages is provided by this Table, the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter. …”

105. The issue in Dale was whether the worker was entitled to compensation for non-economic loss “having regard to the short time which elapsed between the injury and the death”: Dale at [21]. Davies AJA, with whom Ipp JA agreed, observed at [46]:

“46   Counsel for the appellant put the crux of the appellant's case as follows:-

"What we seek to avoid is the double compensation in respect of that initial period because he's not suffered a s 66 loss in the sense that he's aware of any loss and the very event which kills him is the very thing which is intended to be compensated under the Act by the death benefits and in our submission not by a lump sum under s 66 in respect of the very injury which kills him."

However, the submission does not express any criterion for distinguishing between those cases where the death results after a substantial period and those where the survival is brief. In my opinion, the provisions of the Act and the principles upon which the Act is founded must be applied.”

106. Powell JA also concluded that notwithstanding the short period of survival, the sequelae of the injury were permanent and compensable: Dale at [17]. See also Bresmac; TNT Australia v Horne; State of New South Wales v Allen (2000) 20 NSWCCR 314.

107. It follows that when the Parliament amended this statutory scheme in 2002 to introduce into this beneficial legislation the concept of compensation for non-economic loss depending upon permanent impairment, which is dealt with in s 66, it did not take the opportunity, as it could have, to introduce any precondition for entitlement to such compensation, in the case where an injury also results in death, at some later time.

108. Not having done so, to adopt a construction of the undefined term “permanent impairment”, used as it now is in the statutory provisions I have discussed, to introduce a limitation on the benefits which follow injury, for which the Parliament did not provide, either where survival is short, or where “experience of living is not enduring”, would also not accord with the relevant statutory history.

Mr Messenger’s “permanent impairment”

109. I consider that the meaning of the statutory phrase can be well illustrated by the injuries Mr Messenger suffered.

110. The medical specialist found that the crush injuries to Mr Messenger’s chest had impaired his ability to breath, but were not so severe that they killed him instantly. His heart continued to beat, but his death was likely to have followed within minutes, during which he was likely to have been unconscious. His spinal injuries alone would not have been fatal.

111. In other cases such spinal and crush injuries may be instantly fatal. In others, they may inevitably be fatal, but death may not be quick, especially if help is to hand. In some cases such help may save the injured worker’s life. With continuing medical advances it is likely that prospects of survival of even very serious impairment, for at least a period, may be considerable and over time, prospects of survival may increase.

112. As I have explained, the term “permanent impairment”, as it is used in this statutory scheme, is not concerned with any of these possibilities, but rather with the question of whether the injury has resulted in permanent, rather than temporary impairment. It is only if a worker has not survived the injury, so that no impairment has been suffered, that the question of whether there has been “permanent impairment” does not arise.

113. It follows that the Appeal Panel was correct to conclude that the permanent impairment which had resulted from Mr Messenger’s injuries did entitle him to compensation under s 66, that entitlement arising under s 9, when he suffered the injuries caused by the accident.

114. The medical specialist clearly erred in concluding, as she finally did, that he had suffered a 0% degree of permanent impairment. Mr Messenger’s impairment was permanent, there being no suggestion that he could recover from it. The assessment that its degree was 100% reflected that it had later resulted in his death. It follows that there was no error in the Appeal Panel’s conclusion that the medical specialist had erred.

The scope of the appeal and demonstrable error

115. The conclusion reached by the medical specialist in her second assessment on 10 August 2016 was:

“The factual matters are that I consider that the requisite of permanency is not satisfied in the situation where death was inevitable within a very short timeframe. I also note that in the present case, the facts do not support the probability that the injuries sustained by the deceased were permanent. The possibility that, in different circumstances where there was a person who was immediately on hand with the necessary medical knowledge and (presumably) with the necessary medical equipment to administer the necessary treatment is speculative and overlooks the reality of the situation.”

116. Section 9 is concerned with the permanency of impairment, not injury. Why it was that the medical specialist considered that the facts did “not support the probability that the injuries were permanent”, was not explained. Implicit in what the medical specialist said in the last sentence, is that it was possible that despite the nature of his injuries, Mr Messenger might have survived longer, if help had been to hand. That, however, reveals nothing about whether the impairment he suffered as the result of his injuries was permanent, whether or not he received such help.

117. Under s 327(3) of the 1998 Act, one of the specified grounds of appeal is that “the medical assessment certificate contains a demonstrable error”. This involves more than "obvious error" which the Registrar can correct, such as errors of logic or analysis: New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [23].

118. The jurisdiction of the Registrar under s 327 to allow the appeal to proceed depended on satisfaction that a ground of appeal specified in subsection (3) was made out: s 327(4). The appeal proceeded because the Registrar was correctly satisfied that such a ground had been made out.

119. As the Estate submitted, the time at which the question of whether an injury which a worker has suffered gives rise to an entitlement to compensation for permanent impairment, is at the time the injury is suffered. That does not depend on whether the injury is permanent, but whether any impairment it causes is permanent. Rights to compensation then accrued are not extinguished by subsequent developments, even death.

120. On appeal there was no issue about the injuries Mr Messenger had suffered, or about the circumstances or time of his death. What the parties joined issue over was whether his death, shortly after the accident, precluded the conclusion that his injury had caused a “permanent impairment”, compensable under s 9.

121. This involved more than a difference of opinion on the facts, about which there was no real difference, between the parties.

122. In its decision the Appeal Panel concluded at [49]:

“The Panel notes that the Pathology report of 29 July 2015 and the report of Professor Ian Cameron dated 28 August 2015 leave no doubt that Mr Messenger suffered the destruction of his respiratory system in the accident. The Panel accepts that it is likely that he would have been unconscious in the short time between the incident and death. Mr Messenger remained alive, albeit unconscious, only for a period of a few minutes after the injurious incident. To adapt the terminology of Davies AJA, for Mr Messenger ‘it was highly probable that the’ respiratory system damage ‘would be with the deceased for the remainder of his life’. It is the Panel’s view that the impairment was clear and permanent.”

123. It is apparent that while the Appeal Panel addressed the correct question, the medical specialist did not. The Appeal Panel was thus correct in concluding that the medical specialist had fallen into demonstrable error.

124. The medical specialist also erred in concluding as she did on reassessment, that Mr Messenger had suffered no permanent impairment. As the Appeal Panel found, the evidence established that when he was injured, Mr Messenger suffered a permanent impairment which gave rise to an entitlement to compensation under ss 9 and 66 of the 1987 Act, even though his death followed shortly afterwards. It was his death which then gave rise to his dependants’ separate entitlement to compensation

125. The Appeal Panel thus did not act beyond jurisdiction, when it issued a fresh certificate under s 328(5) of the 1998 Act, it expressly allowing the Appeal Panel to revoke the old “certificate and issue a new certificate as to the matters concerned”, it having found relevant error.

126. Contrary to what Hunter Quarries argued, Mr Messenger's death did not result in double compensation. The medical specialist fell into error and the Appeal Panel accordingly acted within jurisdiction, when it issued the further certificate.

Orders

127. For these reasons the proceedings must be dismissed with an order for costs in favour of the Estate, the usual order being that costs as agreed or assessed follow the event. Unless the parties approach to be heard within 7 days, that will be the Court’s order.

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Decision last updated: 17 April 2018