Ansett Australia v Dale

Court of Appeal (NSW)|2001-05-30|Before: Powell JA, Mr J, Mahoney P

CITATION : Ansett Australia v Dale [2001] NSWCA 314 FILE NUMBER(S) : CA 40331/00 HEARING DATE(S) : 30 May 2001 JUDGMENT DATE : 14 September 2001

Ansett Australia Limited (Appellant) PARTIES : v Margaret Anne Dale (as Executrix of the Estate of the late Phillip Mewburn Dale) (Respondent) JUDGMENT OF : Powell JA at 1; Davies AJA at 19; Ipp AJA at 48

LOWER COURT JURISDICTION : Compensation Court LOWER COURT 42302/98 FILE NUMBER(S) : LOWER COURT Davidson CCJ JUDICIAL OFFICER :

COUNSEL : A: Mr J D Hislop QC, Mr N Chen R: Mr L King SC, Mr R F Wilkins SOLICITORS : A: Gillis Delaney Brown R: Jones Staff & Co CATCHWORDS : Workers Compensation - worker died shortly after receiving head injury - whether worker suffered brain damage - whether injury was permanent - whether worker could recover 100% as a most extreme case - whether employee's and dependant's rights amounted to double compensation - whether employee's claim for 100% compensation was inconsistent with the Human Tissue Act 1983 - whether error of law in award of 100% compensation. Workers Compensation Act 1987, ss 25, 66, 67, Table LEGISLATION CITED : Compensation Court Act 1984, s 32 Human Tissue Act 1983, s33 United Collieries Limited v Simpson [1909] AC 383 Schlenert v H G Watson Contracting Co. Pty Ltd (1979) 1 NSWLR 140 TNT Australia Pty Ltd v Estate of Horne (1995) 36 NSWLR 630 Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 State of NSW t/as NSW Department of Agriculture v Allen (2000) 20 NSWCCR 314 CASES CITED: Hillier v Gosford City Council (NSWCC, 22/6/98, unrep) Bourke v State Rail Authority (NSW) (1999) 18 NSWCCR 429 Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR (NSW) 135 Australian Gas Light Company v The Valuer-General (1940) 40 SR(NSW) 126 Hope v Bathurst City Council (1980) 144 CLR 1 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Langdon v State of NSW (1996) 13 NSWCCR 552 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40331/00 CC 42302/98 POWELL JA DAVIES AJA IPP AJA

FRIDAY, 14 SEPTEMBER 2001 ANSETT AUSTRALIA LIMITED v MARGARET ANNE DALE (As Executrix of the Estate of the Late Phillip Mewburn Dale)

JUDGMENT 1 POWELL JA: As the basic facts which have given rise to this appeal have been set out by Davies AJA in the Judgment which he has prepared, which Judgment I have read in draft, it is not necessary that I repeat them here. 2 There are, as it seems to me, three matters which call for consideration or comment, they being: a. what is comprehended by the phrase "brain damage" appearing in the Table to Division 4 of Part 3 of the Act;

b. whether it was open to Davidson CCJ, in the circumstances of this case, to hold that such brain damage as had been sustained by the deceased, constituted a most extreme case; and

c. whether, in the circumstances of this case, it was open to Davidson CCJ to hold that such brain damage as had been sustained by the deceased was permanent.

Brain damage 3 The question of what was comprehended by the phrase "brain damage" was considered by this Court in Langdon v. State of New South Wales (1996) 13 NSWCCR 552. In the course of his Judgment, Mahoney P wrote supra at 555: "It was necessary for the appellant to establish that he had suffered 'permanent brain damage' within the terms of the Table to which reference is made in, inter alia, sections 66 and 67 of the Workers Compensation Act 1987. It is not sufficient that the appellant establish that, because of the injury he has suffered, his mental capacity has been reduced or his mental functioning has deteriorated. It is necessary to show that there has been 'permanent brain damage'. In principle, that is both necessary and sufficient to establish his claim to compensation. The effect produced upon his mental functioning may be relevant for, for example, the purpose of proving the existence of permanent brain damage. Thus, with the assistance of expert evidence, the tribunal of fact may feel it proper to infer that, because of the deficit in mental functioning, he has suffered brain damage. And the extent of the deterioration in his mental functioning may warrant an inference as to the extent of the brain damage and accordingly may assist in determining what proportion of a most severe case exists." 4 In the course of my Judgment, with which Judgment, Meagher JA agreed, after referring to the provision "Loss of mental powers" which had been introduced into the Table when the Act was passed in 1987 and which was replaced by the phrase "Brain damage" when the Act was amended in 1989, I wrote supra at 577-578: "Despite the linguistic difficulties caused by the juxtaposition of the concepts of 'injury' and 'loss of a thing', it seems to me to be tolerably plain that what was intended by the inclusion in the new Table in the 1987 Act of the item 'loss of mental powers' was the conferring upon a worker who, by reasons of a work related 'injury' - whether that 'injury' be a frank injury or a 'disease' injury - had had his higher intellectual function so impaired that he was totally incapable of work, a right to receive lump sum compensation.

Although, in the absence of any guidance to be found in the debate on the Second Reading or in the discussions when the Bill was in Committee, there must be some doubt that this was so, it seems to me that what was intended to be achieved by the amendment effected by the 1989 Act was to extend the range of circumstances in which a worker who had sustained a work related 'injury' to his brain might be entitled to lump sum compensation in two respects:

so as to include among those so entitled to receive some form of lump sum compensation those who by reason of consequential impairment of their higher intellectual function, while still able to engage in some form of work, were no longer able to work in their prior employment; and

so as to enable those who by reasons of a work related 'injury' to the brain had lost, either in whole or in part, some faculty or the efficient use of some bodily part, which faculty or the use of which bodily part, was controlled by the brain, and the loss of which faculty, or the loss of the efficient use of which bodily part, was not already provided for in the new Table of Maims.

The reasons which have led me to this conclusion are:

the change in language between the former, and the new, provision;

provision of a range of percentages instead of a single percentage; and

the fact that some of the items - as, for example, speech loss - already included in the new Table of Maims may be brought about by a number of causes as, for example, by a frank injury to the organs of speech, or by brain injury affecting the motor area of the brain, or by brain injury affecting the association areas of the cerebral cortex." 5 As Davies AJA has recorded in his Judgment, the deceased, whilst undertaking aircraft maintenance in the course of his employment, fell hitting the back of his head. When, following the accident, he was taken to the New Changi Hospital, an urgent CT scan showed that he had sustained an acute left sided subdural haematoma. As I understand it, the dura mater is a thick and dense inelastic fibrous membrane which lines the interior of the skull. Further, as I understand it, a haematoma is formed when blood flows from a ruptured blood vessel into surrounding space or surrounding tissue where it clots. Thus, a subdural haematoma is a haematoma lying underneath the dura mater, usually resulting from head injury and giving rise to progressive symptoms and signs of cerebral compression. The materials which were before Davidson CCJ would indicate that acute subdural haematomas do not occur instantly and take some time to develop. 6 As Davies AJA has also recorded in his Judgment, the deceased was transferred from the New Changi Hospital to the Tan Tock Seng Hospital where he underwent an urgent craniotomy with the evacuation of the blood clot. At the time of surgery it was noticed that the deceased's brain was very swollen, his intra cranial pressure very high, his pulse rate low and he was hypertensive. This, so it was said, "is a classical Cushing response to raised intracranial pressure and impending brainstem herniation". 7 In these circumstances, it seems clear enough that one of the sequelae to the injury sustained by the deceased when he fell and struck his head was brain damage. A most extreme case? 8 Although the immediate injury sustained by the deceased appears to have been a fractured skull followed by a rupture of the blood vessel, if the sequelae to that initial injury are to be regarded as "permanent", then the deceased - and, after his death, his estate - was entitled to be compensated for that injury and those sequelae notwithstanding that the quantification of the appropriate amount of compensation did not take place until after the death (Bresmac Pty. Limited v. Starr (1992) 29 NSWLR 318; TNT Australia Pty. Limited v. Horne (1995) 11 NSWCCR 497; State of New South Wales v. Allen (2000) 20 NSWCCR 314). 9 Although the Certificate of Registration of the deceased's death recorded the "disease or condition leading to death" as having been "bronchopneumonia following fractured skull", the autopsy report, under the heading Central Nervous System recorded in respect of the brain (inter alia) "The brain is heavy due to prominent swelling. The left temporoparietal lobe is herniating out of the craniotomy deficiency.". Other materials that were before Davidson CCJ would tend to indicate that, as the deceased's intracranial pressure became higher, the deceased's condition continued to deteriorate until he became brain dead and thus was deprived of all faculties and bodily functions controlled by the brain. This being so, it seems to me that it was open to Davidson CCJ to hold that this was a most extreme case. Permanent brain damage? 10 Before turning to consider this question, I should record certain further aspects of the evidence that was before Davidson CCJ. 11 The evidence would suggest that acute subdural haematomas do not occur instantly and may take some time to develop. The evidence would also indicate that although acute subdural haematomas have a poor prognosis - the mortality rate being usually between 60% and 70% - a number of patients do survive, providing the subdural haematoma can be removed before irreversible brain damage has occurred. The evidence would further indicate - since the deceased's blood pressure, pulse and intercranial pressure were all monitored up to his death and were present - that the deceased was still alive at the time the craniotomy was carried out and for some time thereafter, brain death not being declared until 12 noon on the day following the accident. 12 The question thus is whether, as Armitage CCJ in Hillier v. Gosford City Council NSWCC 22 June 1998 unreported and Campbell CJ in CC in Bourke v. State Rail Authority (NSW) (1999) 18 NSWCCR 429 held,that an injury or loss was not to be regarded as permanent in a situation where death consequent upon that injury or loss was inevitable within a short time frame or whether, as Davidson CCJ held in the present case, that, as he was not satisfied that death was inevitable, his brain damage was to be regarded as having been permanent. 13 It does not seem to me that this question is necessarily concluded by the Judgment of this Court in New South Wales v. Allen (2000)20 NSWCCR 314 to which Davies AJA has referred in his Judgment. 14 Mr. Allen was to die within 3 months from the time when exploratory surgery had disclosed that he was suffering from pancreatitis and had a well differentiated ductal adenocarcinoma of the pancreas and although resection of the pancreatic mass was not regarded as feasible so that it was inevitable that his condition would deteriorate until his ultimate death, it seemed to me that even if the word "permanent" were to be treated as postulating an impairment which would, at least, remain constant and which might event deteriorate and which would be of an indefinite duration, Mr. Allen was to be regarded as having suffered a variety of permanent impairments and it was not necessary for me to express a concluded view on the question of the meaning to be attributed to the word "permanent". 15 Nor is the question concluded by the decisions of this Court in Bresmac Pty. Limited v. Starr supra and TNT Australia Pty. Limited v. Horne supra to which I referred in the course of my Judgment in State of New South Wales v. Allen for although, in each case, the injured worker had died within a comparatively short time after having sustained his workplace injury - in the case of the unfortunate Mr. Horne, within 5 weeks of his sustaining his injury - the point with which I am now concerned to deal was not the point at issue in either appeal - the point at issue in each appeal being whether or not a claim for an award under s.66 could survive the death of the worker. This notwithstanding, there is a passage in the Judgment of Kirby P (as he then was) in TNT Australia Pty. Limited v. Horne, with which Judgment Priestley JA agreed, which provides some support for the view which the Respondent has sought to maintain in this appeal. 16 In the course of his Judgment, Kirby P when recording the arguments advanced by the then appellant, wrote (inter alia) supra at 634-635: "5. In addition to the foregoing, various arguments of legal principle and policy were urged to suggest the inconvenience of the conclusion to which the primary judge had come: (a) it would involve double compensation, at least in most cases, to the dependants of a deceased worker. Not only would they receive death benefits (as the widow had here) but they would also be entitled, if beneficiaries, to section 66 sums surviving from the worker to his or her estate; ……… (c) death rarely, if ever, results instantaneously from an employment injury. Death is normally a process. A worker might survive one day, one hour or less. The notion of excluding the worker's estate from recovery of section 66 benefits if death from the compensable injury were exactly instantaneous but permitting recovery if death followed one day, one hour or less after injury pointed up the unsuitability of accepting the survival of such causes of action based on 'accrual.' Had parliament meant them to survive it would have expressly said so;" Later supra at 641 , when recording his view that " the estate receives the deceased worker's accrued vested rights to s.66 benefits ", Kirby P wrote: "I acknowledge that, in cases of very short survival of a worker (shorter even than in this case), the accrual and vesting of rights which pass to the worker's estate present certain apparent anomalies. Yet, there would be equal anomalies in the deprivation of accrued rights which may have accumulated over the year and more before the worker's death and be pending the final resolution of disputed claims before the Compensation Court, and perhaps beyond. The suggestion that an award of that Court is necessary for a 'vested' right is unconvincing. Although many claims under s.66 of the 1987 Act must be determined by the Compensation Court, this is not universally so. The Act does not universally require it. To the contrary, the Workers Compensation Act confers rights. Those rights are merely enforced by proceedings in the Compensation Court.

Some claims, such as the total loss of an eye (or one might say cases similar to the present) involve no necessity of litigation at all. The provision of a court and of an award constitute machinery for the quantification and enforcement of disputed claims. But the 'right' rests upon the entitlements expressed in the Workers Compensation Act. For a very long time it has been held that such right accrues to the worker upon the happening of the injury. I would also hold that it is at that time that the right "vests" for the purposes of s.273(2)(b), at least in a case such as the present. The accrued and vested right is therefore available to pass to the worker's legal personal representative upon the worker's death." 17 In the circumstances I have concluded that, notwithstanding the short period of time during which the deceased survived after sustaining his injury, the sequelae of that injury ought to be regarded as having been permanent. 18 I agree that the appeal should be dismissed with costs. 19 DAVIES AJA: This is an appeal from an award made by a judge of the Compensation Court of New South Wales, his Honour Judge Davidson Margaret Anne Dale, suing as the executrix of the estate of the deceased, the late Phillip Mewburn Dale, had sought, under s 66 of the Workers Compensation Act, 1987 ("the Act"), a lump sum of $100,000 in respect of permanent brain damage said to have been suffered by the deceased. The trial Judge found that the claim was proven and made an award accordingly. Under s 32 of the Compensation Court Act, 1984, the appeal is relevantly limited to a question of law. 20 The facts, put shortly, are that the deceased was an employee of the appellant, Ansett Australia Limited, and, on 31 October 1997, whilst undertaking aircraft maintenance, the deceased fell hitting the back of his head. The accident happened at 1.45pm. He was taken to New Changi Hospital where it was ascertained that he had suffered a large left sided acute subdural haematoma with brain swelling causing significant midline shift. The deceased was transferred to Tan Tock Seng Hospital and underwent surgery involving craniectomy and evacuation of the blood clot. At 12.00 noon on the following day, 1 November 1997, testing confirmed brain stem death. Further testing at 4.00pm reconfirmed brain death. On the following day, 2 November 1997, after life support systems had been turned off, the deceased was certified dead at 11.58am. The death was certified as due to "Bronchopneumonia following Fractured Skull". 21 The issue in the case is whether the deceased became entitled to a lump sum payment for a permanent injury in accordance with s 66 of the Act, having regard to the short time which elapsed between the injury and the death. The issue does not involve the circumstance that death was instantaneous. 22 It is not in dispute that a worker's right to compensation accrues on the happening of the injury and, in the event of the worker's death prior to making a claim, or prior to finalisation of the claim, the worker's rights pass to and may be enforced by the worker's legal personal representative. This was decided as long ago as 1909 in The United Collieries Limited v Simpson [1909] AC 383. The principle was applied in Schlenert v H G Watson Contracting Co. Pty Ltd (1979) 1 NSWLR 140. The point was again discussed in detail and reaffirmed in the judgment of Kirby P, with whom Priestley JA agreed, Rolfe AJA dissenting, in TNT Australia Pty Ltd v Estate of Horne (1995) 36 NSWLR 630. 23 The decisions of this Court in Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318, TNT Australia Pty Ltd v Estate of Horne and State of New South Wales t/as NSW Department of Agriculture v Allen (2000) 20 NSWCCR 314 also establish a further point, namely, that a right which accrues to a worker on the occurrence of an injury and which passes to the worker's legal personal representative on his or her death is not to be limited by reference to s 25 of the Act, which confers benefits upon dependants in the event that death results from the injury. The approach taken in these cases arises from the terms of the Act. The Act does not give a right to claim in the event of "death or injury". The Act gives to the worker a right to claim when the worker has suffered an injury. Those rights pass to the legal personal representative on death. The Act also gives a right to dependants to claim in the event of death from the injury. 24 Whilst there is no difficulty in understanding the application of the provisions in those cases where the time lapse between the injury and the death is a substantial one, the operation of the Act may appear anomalous when the period between the injury and the death is short. Nevertheless, such a point was recognised by Lord Macnaghten in The United Collieries Limited v Simpson at p 392, where his Lordship said that, "Certainly the result in the present case is rather startling". That was in 1909. The point was again adverted to by Kirby P in TNT Australia Pty Ltd v Estate of Horne at p 641 and, at p 642, where his Honour said that it was for Parliament to amend the legislation if it wished to do so. Parliament has not done so. 25 As was pointed out in TNT Australia Pty Ltd v Estate of Horne, s 67(5) of the Act provides that, "Compensation under this section [for pain and suffering] is not payable after the death of the worker concerned". The existence of that express provision is another reason for not implying any limitation to the benefits conferred by s 66 by reason of the subsequent death of the worker. 26 That brings me to s 66 of the Act which provides, inter alia:- 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. 27 The Table, which appears after s 73, provides, inter alia:- Table

Compensation for permanent injuries ____________________________ Nature of injury Percentage of maximum amount payable ____________________________ …

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. … 29 Although the worker's rights accrue on the happening of the injury, it is not in dispute that, in applying s 66, it is necessary to look at the situation at the time when the award is made. An award for permanent injury under s 66 cannot be made if, at the time when the award is made, it is not probable that the injury was or is permanent. Nor is it in dispute that, in applying the Table, it is necessary to have regard not merely to actual physical loss, but also to loss of function. These principles are not in dispute in this case. 30 The first submission put by Senior Counsel for the appellant relied upon s 33 of the Human Tissue Act, 1983, which provides:- 33. When death occurs For the purposes of the law of New South Wales, a person has died when there has occurred:

(a) irreversible cessation of all function of the person's brain, or

(b) irreversible cessation of circulation of blood in the person's body. 31 It was submitted by counsel for the respondent that reliance in the appeal upon the section should not be permitted, as the section was not raised in the proceedings below and, so it was said, evidence could have been adduced to counteract its effect. It was further submitted that s 33 should be read in the context of the Human Tissue Act and was not of general application. For my own part, I consider that the section means what it says, and that, being part of the law of New South Wales, it ought to be applied in the appeal, if it has relevance. 32 Counsel for the appellant submitted that an award for 100 per cent damage to the brain could not be made until there was irreversible cessation of function of the worker's brain and that, at that point of time, the worker would be legally dead. Therefore, it was submitted, 100 per cent brain damage could not be "permanent". 33 Counsel for the appellant also submitted, inter alia:- "We say that by reason of that definition, which on the face of it was for the whole of the purposes of the law of New South Wales, that until the damage to the brain becomes irreversible, we would say, it cannot be said to be permanent. Once it becomes irreversible the patient is legally dead, so there's no claim under s 66."

However, s 33 refers to irreversible cessation of all function of the brain, not irreversible damage to the brain. If a worker suffers permanent damage to the brain, he or she is entitled to compensation under s 66 of the Act. 34 In my opinion, s 33 of the Human Tissue Act is irrelevant. Section 66 of the Act and the Table confer upon workers an entitlement to compensation for permanent brain damage of up to 100 per cent. An award of 100 per cent is to be made only in a most extreme case. I do not see any error, particularly any error of law, in the finding of the trial Judge that the deceased suffered 100 per cent brain damage. If there were anything in the argument that a person could suffer only 99.9 per cent brain damage whilst still being legally alive, it seems to me that a judge would nevertheless be entitled to make an award for 100 per cent brain damage. The Act contemplates that a worker may be entitled to compensation for up to 100 per cent brain damage. Whether that percentage is reached is a question of fact. 35 Under s 66 and the Table, a compensable injury must be permanent. The trial Judge declined to follow the decision of Armitage J in Hillier v Gosford City Council (NSWCC, 22 June 1998, unreported) and that of Campbell CJ in Bourke v State Rail Authority (NSW) (1999) 18 NSWCCR 429, in which both Judges relied heavily upon the statement of Wall J in Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR (NSW) 135 at 138 that:- "The dictionary meaning of 'permanent' as given in the Shorter Oxford English Dictionary is 'lasting or designed to last indefinitely without change; enduring; persistent opp. to temporary'. It will be seen that this meaning falls short of the notion of a perpetual state of affairs; and that while what is permanent may continue for all time, it need not necessarily do so."

Armitage J and Campbell CJ held that the requisite permanency was not satisfied in the situation where death was inevitable within a short time-frame. 36 The trial Judge distinguished these decisions despite the almost identical circumstances in this case. The only distinction pointed to was that, in the present case, he was not satisfied that the death had been inevitable. The trial Judge expressed the view that the permanency of 100 per cent brain damage had been made out. 37 It has been authoritatively laid down, at least as a general guide, that the meaning of an ordinary English word used in a statute in the sense it carries in common parlance is one of fact, not of law. So, also, is the question whether a particular set of facts comes within the description of such a word. (See The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8; and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287-288.) 38 A finding of a tribunal of fact on such a matter cannot be challenged unless the finding of the tribunal was such that no reasonable tribunal could have arrived at it. To put the matter another way, if different conclusions are reasonably open and it is necessary to choose between them, the decision is one of fact. (See The Australian Gas Light Company v The Valuer-General at p 138; Hope v Bathurst City Council at p 8; and Collector of Customs v Pozzolanic Enterprises Pty Ltd at p 288.) 39 The term "permanent", as used in the Table, is an ordinary word of the English language and it is used in the Table in the sense which it carries in ordinary parlance. 40 In my opinion, it was open to the trial Judge to take the view that the deceased's brain damage was permanent for, on the evidence, the chances of recovery were slim. The brain damage was not temporary. It was highly probable that the brain damage would be with the deceased for the remainder of his life. That is not to say that the deceased suffered 100 per cent brain damage for the whole of that period. However, as I have said, the actual percentage of the brain damage is one which is assessed, not at the time of the injury, but later, in the light of the facts as they have eventuated. I see no error of law in the finding by the trial Judge that the deceased's brain damage was permanent. 41 In State of New South Wales t/as NSW Department of Agriculture v Allen, Powell JA applied to the word "permanent" the sense which was given to it by the trial Judge in the present case when his Honour said in para [133]:- "Let it be assumed that the precondition to the making of an Award under s.66 of the Act is that there be a permanent impairment of the type provided for in the Table to Division 4 of Part 3 of the Act, and let it be further assumed that the word 'permanent' postulates an impairment which will, at least, remain constant and may even deteriorate and which will be of an indefinite duration, the fact is that, as at 6 December 1993, Mr. Allen had sustained an injury, which injury Armitage CCJ held to be work related, the sequelae of which injury involved the deterioration in Mr. Allen's physical abilities and in his bodily functions, which deterioration would inevitably progress until at some - indefinite - time in the future, his death would ensue. Contrary to the view expressed by Armitage CCJ it seems to me that, in this situation, Mr. Allen was to be regarded as having suffered a variety of permanent impairments." 42 In TNT Australia Pty Ltd v Estate of Horne, State of New South Wales t/as NSW Department of Agriculture v Allen and the present case, the injury, once suffered, was permanent so far as the worker was concerned; and it is that with which the Act is concerned. 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. 43 In TNT Australia Pty Ltd v Estate of Horne, Kirby P at p 631 said, of the question of law which he was considering, that it "is whether the estate of a deceased worker is entitled, where the worker has survived but later died as a result of a compensable injury, to recover an award under s 66 of the Workers Compensation Act 1987". His Honour used the word "survived". However, his Honour made no further comment on this word and did not discuss the term "permanent". 44 Kirby P specifically rejected a submission, reported at p 635, that permitting recovery if death follows one day, one hour or less after injury pointed up the unsuitability of accepting the survival of such a cause of action based on "accrual". His Honour held that such a cause of action did survive. There is nothing in his Honour's judgment which would permit a distinction to be drawn between the period of survival in that case, some five weeks, and a case such as the present. To introduce a precondition of survival for a significant period would introduce a concept which is not contained in the Act and which is inconsistent with the principle upon which the Act proceeds, namely, that the rights of a worker accrue on the happening of the injury. 45 Similarly, the term "suffered" in s 66 does not import any requirement that the injured worker must either understand or feel pain from the injury. The term "suffered" is used in the sense of "borne". The fact that in the present case the deceased was unconscious from the time of the injury is irrelevant. 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. 47 For these reasons, the appeal should, in my opinion, be dismissed with costs. 48 IPP AJA: I agree with Davies AJA. **********

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(2000) 20 NSWCCR 314

(1999) 18 NSWCCR 429

(1996) 13 NSWCCR 552

(1995) 11 NSWCCR 497

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