Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 Hearing dates: 25 May 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Before: Basten JA at [1];
Gleeson JA at [16];
Payne JA at [17];
Sackville AJA at [105];
Simpson AJA at [113];Decision: (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.Catchwords: ADMINISTRATIVE LAW – judicial review – validity of decision – whether deceased was entitled to compensation for permanent impairment pursuant to the Workers Compensation Act 1987 (NSW) in circumstances where death followed inevitably and within a few minutes of injury
STATUTORY INTERPRETATION – meaning of “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66
WORDS AND PHRASES – “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66
WORKERS COMPENSATION – entitlement to compensation for permanent impairment – Workers Compensation Act 1987 (NSW), s 66Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Interpretation Act 1987 (NSW), s 35
Supreme Court Act 1970 (NSW), s 101
Workers Compensation Act 1987 (NSW), ss 2A, 4, 9, 22, 25, 26, 65, 66
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 3, 293, 322, 324, 326, 327, 376, Ch 7, Pt 7Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; 73 MVR 211
Ansett Australia v Dale [2001] NSWCA 314
Basin Sands Logistics Pty Ltd v Duskovic as administrator of the estate of the late David John Duskovic [2016] NSWCCMA 91
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Bourke v State Rail Authority (NSW) [1999] NSWCC 39
Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
Collector of Customs v Agfa Gevaert (1996) 186 CLR 389; [1996] HCA 36
Department of Agriculture (NSW) v Allen (2000) 20 NSWCCR 314
Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55
Hillier v Gosford Shire Council (Compensation Commission (NSW), 22 June 1998, unrep)
McDonald v Director General of Social Security (1984) 1 FCR 354; [1984] FCA 59
NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; 59 MVR 195
TNT Australia Pty Ltd v Horne, As Executrix of the Estate of the Late Douglas Horne (1995) 36 NSWLR 630Category: Principal judgment Parties: Hunter…
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- Case
- [2018] NSWCA 178
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was the proper interpretation of the term "permanent impairment" as defined in section 66 of the *Workers Compensation Act 1987* (NSW). Specifically, the court had to determine whether an injury that resulted in death within minutes, and where death was an inevitable consequence, could constitute a "permanent impairment" for the purposes of the Act.
The Court of Appeal allowed the appeal, setting aside the primary judge's order and the decision of the Workers Compensation Commission Appeal Panel. The court reasoned that the concept of "permanent impairment" under section 66 of the Act presupposes that the worker survives the injury and suffers a lasting impairment to their physical or mental capacity. In circumstances where death is instantaneous or follows so closely that there is no period of survival during which an impairment can be assessed as permanent, the statutory scheme for permanent impairment compensation does not apply. The court concluded that the application to the Workers Compensation Commission Appeal Panel should be dismissed.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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