Legal Research
Cases
Hunter Quarries Pty Ltd v Mexon

Hunter Quarries Pty Ltd v Mexon

Link copied

Case Copied 16 August 2018 63 min read

Contents

On this page

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 66
Legislation 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 7
Cases 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 630
Category: Principal judgment
Parties: Hunter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hunter Quarries Pty Ltd v Mexon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWCA 178
Decision Date: 16 August 2018

CaseChat Overview and Summary

Hunter Quarries Pty Ltd (the appellant) sought judicial review of a decision of the Workers Compensation Commission Appeal Panel concerning the entitlement of the deceased, Mr Mexon, to compensation for permanent impairment. The dispute arose from the deceased's death, which occurred shortly after an injury sustained in the course of his employment. The appellant contended that the deceased was not entitled to compensation for permanent impairment under the *Workers Compensation Act 1987* (NSW) because his death followed inevitably and very soon after the injury.

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;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 66
Legislation 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 7
Cases 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 630
Category:	Principal judgment
Parties:	Hunter…