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

The judicial review proceedings

1. On 22 May 2017, the appellant filed a summons seeking judicial review of the Appeal Panel's decision in the Supreme Court of New South Wales.
2. On 6 September 2017, the matter was heard by the primary judge. The Appeal Panel and the Workers Compensation Commission were joined as parties to the proceedings but entered a submitting appearance. The State Insurance Regulatory Authority appeared, by leave, as amicus curiae.
3. The principal issue before the primary judge was 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 WIM Act.
4. The appellant submitted before the primary judge that the expression "permanent impairment" did not encompass impairment so serious that death will inevitably follow, within a short time frame. The State Insurance Regulatory Authority submitted that there must be some continued and enduring experience of living in order for an impairment to be "permanent".
5. The respondent submitted that "permanent impairment" encompasses impairments so serious that an injured worker cannot recover from them, regardless of the length of time for which the impairment subsists.
6. On 22 November 2017, the primary judge dismissed the appellant's challenge to the decision of the Appeal Panel. Her Honour concluded at [22]-[25]: "[22]… I am not satisfied that the construction of the term "permanent impairment" for which Hunter Quarries or the Authority contend, is correct. In my view that term, as it is used in this legislative scheme, is not concerned with the consequences 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 [sic] or she cannot recover from it, even with treatment, there is a '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'."
7. The primary judge held that the term "permanent impairment" is not concerned with the possibility of death occurring shortly after injury, but rather with the question of whether the injury has resulted in "permanent", as opposed to "temporary" impairment.
8. The primary judge held that if a worker is killed "instantly", then the injury results in death and a "permanent impairment" does not arise: at [66].
9. In construing the legislative scheme, the primary judge said at [100] that "…had the Parliament intended that in the event that death results shortly after injury, the injured worker has not suffered a "permanent impairment", Parliament would have expressly provided for that result".
10. Her Honour also noted that the form of s 66 considered by this Court in Ansett Australia v Dale [2001] NSWCA 314 was different to the present form of the provision (at [103]). Her Honour found at [105]-[108]: "[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."
11. Her Honour held that the Appeal Panel was correct to conclude that the permanent impairment, which had resulted from Mr Messenger's injuries, entitled the administrator of his estate to compensation under s 66 of the Workers Compensation Act: [113]-[114].
12. Her Honour ordered that the proceedings be dismissed with an order for costs in favour of the estate.

The appeal to this Court

1. On 19 December 2017, the appellant filed in this Court a summons seeking leave to appeal pursuant to s 101(2) of the Supreme Court Act 1970 (NSW). In its draft notice of appeal, the appellant advanced the following grounds of appeal: 1. the primary judge erred in concluding that the expression "permanent impairment" used in ss 65 and 66 of the Workers Compensation Act encompasses an impairment so serious that death will inevitably follow within a short time frame; and 2. the primary judge: 1. erred in failing to conclude that the Appeal Panel acted on a wrong construction of "permanent impairment"; and 2. thereby made a jurisdictional error, or error of law on the face of the record, in setting aside the decision of the approved medical specialists.

No need for leave to appeal

1. In Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; 73 MVR 211 at [5], McColl and Meagher JJA, Macfarlan JA agreeing stated: "The respondent raised a preliminary question as to the competency of the appeal. She submitted that a grant of leave was required because the appeal was from an interlocutory decision and involved a monetary value of less than $100,000: Supreme Court Act, ss 101(2)(e), 101(2)(r). The submission as to the interlocutory nature of the proceedings is rejected. The "proceedings in the Court", meaning the Supreme Court, were for judicial review under s 69. The primary judge's decision was of final legal effect in relation to those proceedings, notwithstanding that the personal injury proceedings in the District Court remain ongoing. Judicial review proceedings concern the monetary value in the underlying dispute in a way that satisfies the connection between proceedings and value referred to in s 101(2)(r): NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; 59 MVR 195 at [16]. Here, it is apparent that the respondent's underlying claim exceeds $100,000. Allianz did not therefore require leave to bring its appeal."
2. The dispute before the primary judge involved the correctness of the Appeal Panel's decision to set aside the "nil" whole person impairment of Mr Messenger by the approved medical specialist and substitute an assessment of 100 per cent whole person impairment. In September 2014, 100 per cent impairment would lead to compensation of $220,000: Workers Compensation Act (as in effect at the date of injury), s 66(2)(e). The effect of the Appeal Panel's decision was to expose the appellant to a liability for which, on the approved medical specialist's assessment, the appellant was not liable. If the appellant is successful on this appeal, it will not be liable for that amount. These circumstances are sufficient to satisfy the connection between these proceedings and the value of at least $100,000 referred to in s 101(2)(r) of the Supreme Court Act.
3. The appellant originally filed a summons seeking leave to appeal. It was unnecessary that it do so. It had a right of appeal in the present case, albeit a right for which an extension of time would be formally required. Subject only to the question of costs, addressed below, the respondent made no submission to the contrary. At the hearing on 25 May 2018, the Court directed the appellant to file a notice of appeal. The appellant filed the notice of appeal in the Registry on 28 May 2018.

Submissions of the parties

1. It will be recalled that on the key issue of 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 WIM Act, the parties were at odds about whether, as the appellant submitted, the expression "permanent impairment" did not encompass impairment so serious that death will inevitably follow, within a short time frame; that is whether there must be some continued and enduring experience of living in order for an impairment to be "permanent". The respondent submitted that as "the opposite of permanent is temporary it is plain that the injuries received by the worker in the current matter to his lungs cannot fairly be considered to have been temporary". There was no temporal element in the expression "permanent impairment" and, so long as death was not "instantaneous" as a result of an injury, an impairment that persisted until death, even if that period was only a few minutes or even a few seconds, constituted "permanent impairment".
2. A key issue that divided the parties was whether the question of whether a worker had suffered a "permanent impairment" was an antecedent question of law which arose prior to the question of the degree of that permanent impairment being determined. The appellant's submission was that the question of whether a worker had suffered a "permanent impairment" was an antecedent question of law prior to the medical assessment of the degree of that permanent impairment. The respondent submitted that as Mr Messenger was a worker who received an injury in the course of his employment with the appellant, "the remaining issue in the current proceedings is whether, as contemplated by s 66(1), that injury 'result[ed] in a degree of permanent impairment greater than 10 per cent'".
3. Another, related, key issue that divided the parties was whether the guidelines with respect to "the assessment of the degree of permanent impairment of an injured worker as a result of an injury" issued pursuant to s 376(1)(a) of the WIM Act could be used to construe the meaning of words in the Workers Compensation Act. Section 322(1) of the former Act provides: "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."
4. The appellant's submission was that the guidelines could not be used to construe the meaning of the phrase "permanent impairment". The respondent submitted that the appellant was propounding a novel and unfounded construction of "permanent impairment" which purported to impose a pre-condition without statutory foundation, which was contrary to the provisions of the 1987 and 1998 Acts and relevant delegated legislation (pursuant to s 376(1)(a) of the 1998 Act), i.e. the guidelines in force at the time of the assessment of the Medical Appeal Panel on 27 February 2017: New South Wales, State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed., 1 April 2016). The respondent submitted in oral address: "In my submission, there's already a scheme and a mechanism for determining what permanent impairment is and its degree and it's ruled by the doctors and in my submission, a complex version of what those words mean, needs to be fairly simple. In my submission, her Honour below struck an appropriate balance."
5. The parties were also at odds about this Court's decision in Ansett Australia v Dale. The appellant submitted that Dale did not bind the primary judge or this Court and, in any event, "its ratio is unclear, the reasoning is unclear and ultimately, in relation to the issue at hand, the reasoning is unpersuasive". The respondent accepted that Dale is not binding on this Court but submitted that the decision is strongly persuasive and that the Appeal Panel's determination was in accordance with the decision. The respondent submitted that the earlier decisions of Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318; Department of Agriculture (NSW) v Allen [2000] NSWCA 141; (2000) 20 NSWCCR 314 and TNT Australia Pty Ltd v Horne, As Executrix of the Estate of the Late Douglas Horne (1995) 36 NSWLR 630 also supported the respondent's construction. The temporal construction advanced by the appellant was "irrelevant given the accrual of rights at the time of injury and before the death of the worker (as discussed in Starr, Allan and Dale)". The respondent submitted that the workers compensation legislation has been amended on numerous occasions since the decision of this Court in Dale without introducing a provision, contrary to that decision, that no entitlements pursuant to s 66 accrue if death will inevitably follow within a short time frame.
6. The respondent submitted that the Workers Compensation Act is beneficial legislation which should not be construed narrowly or with limitations not found in the statute. It was submitted that the appellant's approach involves a gloss on the statute or reads words of limitation into s 66. The respondent submitted that the fact that entitlements to permanent impairment compensation accrue as at the time of injury and that those entitlements are not extinguished by subsequent developments supports its construction and indicates that the appellant's construction involves a "gloss" on the statute. In oral address the respondent emphasised (by reference to a speaking note containing the relevant provisions) the repealed s 67 of the Workers Compensation Act. That provision, in sub-section (5), provided that "Compensation under this section is not payable after the death of the worker concerned". The omission of a similar provision in s 66, the respondent submitted, demonstrates that the section "is not to be interpreted in the manner sought by the [appellant]".
7. The appellant submitted that while there is no objects clause in the Workers Compensation Act, the WIM Act identified "system objectives" in s 3. These objectives identify the purpose of the Act as being to, inter alia, "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" (s 3(c)) and that the system "be fair, affordable and financially viable" (s 3(d)). The appellant submitted that a beneficial construction is an aspect of a purposive construction. Section 3(d) makes clear that this is a scheme which aims to be fair, affordable and financially viable. One cannot say that every grant of an entitlement should be construed broadly because it is a beneficial scheme: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] per Gleeson CJ.
8. The appellant submitted that it was not part of its case that claims for compensation for permanent impairment did not survive death. The construction it advanced was not a gloss on the legislation and did not seek to "add words to the statute", but rather to construe the phrase "permanent impairment". The appellant submitted that there are always issues of fact and degree and to seek to avoid all issues of fact and degree is not to be consistent with the basic test identified by the statute.
9. The parties were also at odds about the practical implications of the construction of "permanent impairment" each advanced: 1. the respondent submitted that recovery of compensation pursuant to s 66 is not conditional upon the impaired worker living beyond a short time frame, being a concept which is itself incapable of precise definition. If entitlements were to be determined subject to such an imprecise pre-condition, the outcomes would be arbitrary and anomalous. The respondent accepted, as had the primary judge, that where death was "instantaneous", no question of permanent impairment arose; 2. the appellant submitted that "permanent impairment" is incapable of precise definition and will always involve matters of fact and degree. The suggested limitation upon permanent impairment followed by death to cases where death was "instantaneous" was no qualification at all. There will always be questions of fact and degree.

Consideration

1. The question to be determined is whether the "injury" sustained by Mr Messenger on 9 September 2014 was "an injury that results in a degree of permanent impairment greater than 10 per cent" such that the respondent is "entitled to receive from the worker's employer compensation for that permanent impairment" within the meaning of s 66 of the Workers Compensation Act.
2. The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39].

Text of the provision

1. Consideration of this issue commences with the text. Section 66 of the Workers Compensation Act on 9 September 2014 provided: "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) (Repealed) (b) if the degree of permanent impairment is greater than 10% but not greater than 20%, the amount of permanent impairment compensation is to be calculated as follows: (c) if the degree of permanent impairment is greater than 20% but not greater than 40%, the amount of permanent impairment compensation is to be calculated as follows: (d) if the degree of permanent impairment is greater than 40% but not greater than 75%, the amount of permanent impairment compensation is to be calculated as follows: (e) if the degree of permanent impairment is greater than 75%, the amount of permanent impairment compensation is $220,000, 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 $17,050 ($13,750 + [2 × $1,650]). If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $17,050. Under this subsection, that $17,050 will be increased by 5%, yielding $17,902.50. 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 $123,750 ($85,250 + (10 × $3,850)). If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $123,750, or $82,500. Under this subsection, that $82,500 will be increased by 5%, yielding $86,625. The total compensation payable for the impairment will therefore be $127,875. (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."
2. The term "permanent impairment" is not defined in the legislative scheme. Some matters may be noted at the outset about the language employed. The section addresses both "permanent impairment" and the degree of "permanent impairment". Whilst it is the degree of permanent impairment which fixes the amount of compensation payable, the section posits the separate existence of "permanent impairment" that results from an injury, both in the structure of s 66(1) and in the limitation provided by s 66(1A). The language used suggests that the question of whether a worker has suffered "permanent impairment" is an antecedent question to the assessment of the degree of that permanent impairment.
3. An appreciation of the role of time and whether a worker's incapacity will persist into the future or not, plays no role in the construction of "permanent impairment" propounded by the respondent. That construction treats "permanent" merely as the opposite of "temporary" and asks whether the impairment will be with the worker for the rest of his or her life, even if that time period is only a few minutes or even a few seconds. While the relevant context may compel such a conclusion, the language employed, "permanent impairment", is apt to convey some diminution in function experienced by a worker which is lasting or enduring. It is not a comfortable use of language to describe an impairment which lasts for only a few minutes or even seconds as "permanent". Neither is it a comfortable use of language to describe as "permanent impairment" an injury which renders the worker immediately unconscious and apparently without a pulse for a few minutes before his or her inevitable death.
4. A construction of "permanent impairment" involving some continued and enduring experience of "impairment" for it to be understood as "permanent" is an outcome of the construction of the expression used in the statutory provision. This construction does not involve a "gloss" on the statutory language, or "require words to be read into the statute" as the primary judge found at [55] and [91]-[101] of her Honour's reasons.
5. To say that the worker's injury results in death, not impairment, is only to say that it is not possible to identify any intervening period between the injury and death which can be called "impairment". But to say that is to acknowledge that some such periods will be so short as not to amount to "permanent impairment".
6. The language employed in s 66 of the Workers Compensation Act does not readily encompass circumstances where death inevitably follows within a short time after injury. The language employed indicates that "permanent impairment" involves some diminution in function experienced by a worker which is lasting or enduring. Whether the language employed should be so construed depends, however, on the use of that language in context.

Purpose and context of the provision

1. The construction of s 66 of the Workers Compensation Act that appears from a consideration of the language used is consistent with its purpose and context. As the appellant pointed out, there is no objects clause in the Workers Compensation Act, but the WIM Act identifies "system objectives" in s 3. That section 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 prevention, injury management, and return to work, (f) to deliver the above objectives efficiently and effectively."
2. It is true that one purpose of the Workers Compensation Act is to benefit workers but it is going too far to say that every grant of an entitlement should be construed broadly because it is part of a beneficial scheme. Section 3(d) identifies another object as being "to be fair, affordable and financially viable". The remarks of Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] are apposite: "[5] ... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose." (citations omitted)
3. The Workers Compensation Act does not pursue a single purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For this Court to construe the Workers Compensation Act as though it pursues only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intention of the legislation.
4. The question of whether a worker has suffered "permanent impairment" is an antecedent question which arises prior to the question of the degree of that permanent impairment. While it is settled that a right to compensation for permanent impairment accrues from the date the worker suffers that impairment (see Horne at 642 per Kirby P), it is clear that the question of whether or not impairment is permanent may only be determined subsequent to the worker suffering the injury. The language used in s 66(1), referring to "an injury that results in a degree of permanent impairment", makes this clear.
5. It is also clear from the context that the question of whether a worker has suffered a "permanent impairment" is an antecedent question of law which arises prior to the medical assessment of the degree of that permanent impairment. The respondent emphasised ss 322(1) and 376(1)(a) of the WIM Act which provide, relevantly: "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…" "376 Issue of guidelines (1) The Authority may issue guidelines with respect to the following: (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury, …."
6. Two points should be made. First, the assessment identified is of the degree of permanent impairment of an injured worker. To assess the degree of permanent impairment does not determine the antecedent question of the existence of the worker's "permanent impairment".
7. Secondly, the guidelines provided for by s 376 cannot be used to construe the meaning of the phrase "permanent impairment" in s 66 of the Workers Compensation Act: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [45] per Leeming JA.
8. While there is an exception in cases where the delegated legislation is drafted at the same time as the legislation so that it is all part of one "scheme", the guidelines here do not meet that description. In Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9 at [21] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ, the High Court held that: "[a] basis for the statutory scheme for which QBE contends would have to be found in the provisions of the Act. No such scheme is discernible. The regulations and the words of the policy cannot be used to construe, and thereby to alter, provisions of the Act which created them".
9. Section 66 of the Workers Compensation Act is in a Division that has the heading "compensation for non-economic loss", which provides relevant context. That is underlined by s 35(1) of the Interpretation Act 1987 (NSW). The Second Reading Speech in relation to the Act that introduced the relevant version of s 66 into the Workers Compensation Act explained that the regime established by the Act captured injuries such as damage to internal organs and psychological injury which "can have a significant, ongoing impact on the life of an injured worker": New South Wales Legislative Assembly, Second Reading Speech for the Workers Compensation Legislation Amendment Bill 2001 (Hansard), 19 June 2001, 14774. The following extract from the Second Reading Speech is also relevant to this issue: "…. The degree of permanent impairment of an injured worker as assessed under the guides is to be used to determine the amount of compensation for injured workers. The amount will be determined through formulas which will be prescribed by regulation. Until the guidelines are developed, a proper assessment cannot be made as to what compensation formulas are adequate. It is for this reason that the Government has decided to prescribe these formulas through delegated legislation. ... In moving away from the table of disabilities to guides, a broader range of permanent impairments will now be compensated. The current table of disabilities with its focus on loss of body parts does not provide for compensation to a large number of impairments including damage to internal organs and psychological injury. For the first time, those permanent impairments not covered by the table of disabilities, which can have a significant, ongoing impact on the life of an injured worker, will be eligible for compensation." (emphasis added)
10. The "practical difficulties and uncertainties" perceived by the primary judge in the construction advanced by the appellant do not, upon analysis, withstand scrutiny. Whether impairment meets the description of "permanent impairment" always involves matters of fact and degree. Determining whether, in all the circumstances, the period of time between an injury and death is such that any impairment in the interim can be described as a "permanent impairment" is a consequence of the fact-sensitivity of the expression to circumstances involving injuries which rapidly cause death.
11. "Death" in NSW is defined in the Human Tissue Act 1983 (NSW) as being: "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."
12. The primary judge posited death resulting "instantly" from an injury as one which would not give rise to "permanent impairment". The respondent accepted, as had the primary judge, that where death was "instantaneous", no question of permanent impairment arose. The respondent's position on this issue was encapsulated in the following exchange: "SACKVILLE AJA: But what I'm asking you, what are the criteria for determining whether something is instantaneous as opposed to a moment or two afterwards? ROBINSON: Accepting what [her] Honour said below, that does raise the question and I accept that is relevant. I'm a lawyer, I'm not a doctor and I'm not able to say what a doctor would say, although it would be and could be appropriately a matter for expert evidence. But if there's life after the injury, then there should be some scope for permanent impairment. But it's not up to us to determine, that is up to an appeal panel or an approved medical assessor to work that out. In my submission, that's their job and it's not our job to determine it on each and every case."
13. The respondent's submission should not be accepted. There will always be a measurable unit of time, whether in seconds or even more minute fractions of time, between when an injury is suffered and there is death defined as either "irreversible cessation of all function of the person's brain" or "irreversible cessation of circulation of blood in the person's body". The Court was not asked in the present case to rule about that issue beyond finding that there was a temporal element to the phrase "permanent impairment" and that in the circumstances here, survival in an unconscious state for a few minutes was not "permanent impairment". In the way that the cases explained that distinction, if it be a distinction, in this case death was "instantaneous", except in a highly technical way.
14. The "practical difficulties" pointed to by the respondent will always exist with the construction it propounds which cannot be wished away by defining them, incorrectly, as limited to cases where death is "instantaneous" resulting from an injury. As time can be reduced, and measured, in minute fractions there is no such thing as "instantaneous" death. It follows that the respondent's submission that if there is life, even for a minute fraction of time following an injury which will inevitably lead to death there is "permanent impairment", must be rejected.
15. The absence in s 66 of the Workers Compensation Act of a provision such as the former s 67(5) does not assist the respondent. The appellant's construction accepts that compensation under s 66 may be payable after the death of the worker concerned. This begs the question, however, of whether death within a few minutes as the inevitable result of an injury constitutes "permanent impairment".
16. In a different statutory context, entitlement to Social Security benefits, the Full Court of the Federal Court has observed that a permanent incapacity is an incapacity that will persist in the foreseeable future. The Court held there that two elements, the degree of likelihood of improvement and time-span for that improvement, should be weighed together in determining which incapacities were permanent and which were temporary: McDonald v Director General of Social Security (1984) 1 FCR 354 at 360; [1984] FCA 59.
17. The context supports a construction of the expression "permanent impairment" as one involving some continued and enduring experience of living. The term does not encompass an impairment resulting from an injury so serious that death will inevitably follow, within a few minutes.

Previous authority

1. The remaining question is whether a different conclusion about the meaning of s 66 of the Workers Compensation Act is compelled by authority.
2. The respondent submitted that Bresmac Pty Ltd v Starr, TNT Australia Pty Ltd v Horne, Department of Agriculture (NSW) v Allen and Ansett Australia Ltd v Dale supported the construction of "permanent impairment" she advanced. It will be recalled that the respondent submitted that the temporal construction advanced by the appellant was "irrelevant given the accrual of rights at the time of injury and before the death of the worker [as discussed in the aforementioned cases]".
3. Bresmac, Horne and Allen do not address the present question. Bresmac determined that s 66 in the form it then took should be construed as meaning that despite the fact that some losses addressed by the section may "not reach their permanent form" until time has passed since the injury, entitlement to compensation accrues immediately (at 328-329 per Priestley JA with whom Handley and Sheller JJA relevantly agreed). Priestley JA also determined that no compensation under s 67 of the Workers Compensation Act was payable unless the worker who experienced the pain and suffering is alive at judgment to receive it. Neither question was controversial on this appeal or addressed the subject matter of the meaning of "permanent impairment". The construction advanced by both parties accommodated the proposition that entitlement to compensation accrues immediately and that the death of the worker is not, of itself, a barrier to obtaining the payment of compensation under s 66 as the section did not contain the prohibition appearing in the former s 67.
4. Horne is another case addressing the question of the vesting and accrual of rights in a worker who has suffered an injury. In that case where a worker survived for five weeks following an injury, it was determined by Kirby P with whom Priestley JA generally agreed, that at the moment of happening of the "jurisdictional fact" of having suffered the loss of a thing mentioned in the Table to this Division as the result of an injury, the rights of a worker under the Workers Compensation Act are accrued and vested. The decision begs the present question. Unlike the present case, the content of the worker's rights to compensation, whatever they were, was not in issue in Horne.
5. Allen does not address the present issue. The author of the lead judgment in that case, Powell JA, subsequently said in Dale at [14] that in Allen "it was not necessary for me to express a concluded view on the question of the meaning to be attributed to the word 'permanent'".
6. The real question is whether the decision of this Court in Dale precludes the construction advanced by the appellant which I would otherwise accept. It will be recalled that the primary judge concluded that Dale was sufficiently different to the present case so as not to bind her Honour. That conclusion was correct. The decision in Dale is distinguishable on the section it addressed. It is also distinguishable on the facts.
7. Section 66 of the Workers Compensation Act at the time being considered in Dale provided, relevantly: "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. … 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"
8. The language of s 66 in the form it took in Dale was obviously different in material ways to that the subject of the present appeal. The section required demonstration of the "loss of a thing mentioned in the Table… as the result of an injury". The "thing" mentioned in the Table was "Permanent brain damage (being an injury which is not or is not wholly an injury otherwise compensable under this Table)". That is to be contrasted with the present requirement for "an injury that results in a degree of permanent impairment greater than 10%". The primary judge was correct to conclude that the language of the provisions was sufficiently different that her Honour was not bound by Dale.
9. Dale is also distinguishable on the facts. There was a clear finding by the trial judge in that case, not disturbed by the Court of Appeal, that death as a consequence of the injury suffered there was not inevitable. The ratio of Dale (per Davies AJA with whom Ipp AJA agreed) was that the meaning of an ordinary English word, there the word "permanent", was a question of fact which could not be challenged as a question of law unless the meaning given to the word was one that no reasonable tribunal could have arrived at. His Honour held that it was "open" to the trial judge to take the view that the deceased's brain damage was permanent because, on the evidence, there was a chance of recovery, albeit a slim chance. The facts here are uncontested and clear; death as a result of the injuries suffered within a few minutes was inevitable. The facts were sufficiently different such that her Honour was not bound by Dale.
10. The dicta which may be gleaned from the case is also of only marginal assistance. Powell JA, who decided that it was open to the Compensation Court judge to hold that the brain injury suffered by the person injured was "permanent", appears to have been strongly influenced by the decision of Kirby P in Horne. The passages from Horne cited by Powell JA each addressed the time at which rights are vested. They did not address the issue of the content of the worker's rights to compensation, whatever they were.
11. Davies AJA, with whom Ipp AJA agreed, framed the issue as a contest about whether the deceased became entitled to a lump sum payment for a permanent injury having regard to the short time which elapsed between injury and the death. His Honour said, at [44]: "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."
12. His Honour recorded as important to this conclusion the circumstance that "[t]he issue does not involve the circumstance that death was instantaneous". Davies AJA also relied upon the reasoning of Powell JA in Allen (although it will be recalled that Powell JA explained that he had not dealt with the issue in that case) and the dicta in Horne, which did not address the issue of the content of the worker's rights to compensation.
13. In my respectful view, the dicta in Dale are not persuasive about the present question. The respondent's submission that the Appeal Panel's determination that, as a general principle, "permanent impairment" arises in circumstances in which death is inevitable in a short time following the suffering of an injury, is in accordance with prevailing legal principle as was held in Dale, should be rejected.
14. I would also reject the respondent's submission that the presumption of re-enactment applies in the circumstances of this case. Dale was handed down on 14 September 2001. The 2001 amendments which substantially changed the worker's compensation scheme, including the removal of the Table the subject of Dale, were introduced into the Legislative Assembly on 19 June 2001. The amending Act, the Workers Compensation Legislation Amendment Act 2001 (NSW), was assented to on 17 July 2001 and it commenced on 1 January 2002. In other words, Royal Assent was granted to very substantial amendments to the scheme prior to Dale being handed down. It is not correct to say that Parliament had implicitly approved a construction of the Workers Compensation Act which was consistent with the respondent's submissions about the effect of Dale.

Conclusion

1. It is sufficient for the purposes of this case to conclude that "permanent impairment" within the meaning of ss 65 and 66 of the Workers Compensation Act and in s 322(1) of the WIM Act does not encompasses circumstances where death follows shortly and inevitably after the injury, and certainly not where, as here, death inevitably occurred within a few minutes. There must be some continued and enduring experience of living in order for there to be "permanent impairment".
2. The respondent's submission that the Workers Compensation Act and the WIM Act leave this question to medical professional opinion should be rejected. Whilst it may be accepted that whether impairment is "permanent" always involves a matter of fact and degree, the limitation in the meaning of the phrase "permanent impairment" to occasions in which impairment is "temporary" compared to where it is "permanent" is not warranted by the text, context and purpose of the Workers Compensation Act.
3. It is true that the conclusion in this case does not permit a bright line answer applicable in all circumstances to the determination of the question of whether an injury which results in death does or does not also give rise to "permanent impairment". Such a bright line answer is not possible. The bright line suggested by the primary judge, that permanent impairment does not arise where death is "instantaneous", is a chimera.
4. The "Reconsideration Medical Assessment Certificate" issued on 10 August 2016 by Dr Harvey-Sutton contained the correct conclusion and it was an error of law for the Appeal Panel to set that certificate aside. The primary judge should have so concluded. The appeal should be allowed and the decision of the Appeal Panel should be set aside and in lieu thereof an order should be made that the application to the Workers Compensation Commission Appeal Panel be dismissed. .

Costs

1. Costs of the appeal and of the trial were not sought by the appellant. The appellant submitted, however, that if successful, the costs orders made against it below should be set aside.
2. The respondent submitted that a special costs order was warranted in this case of the kind made in CSR v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [81] per Gleeson CJ, Gummow and Heydon JJ): "[81]…It is common in this Court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side's costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side. At the hearing of the special leave application, the respondent contended that special leave should only be granted on terms of that kind. The application was reserved to be dealt with on the hearing of the appeals. The appellants contend that these terms should not apply because of the costs offers made in June 2003, and because the appeals to this Court were only rendered necessary because of the plaintiff's decision to institute the proceedings in New South Wales (where Sullivan v Gordon applied) rather than South Australia (where it did not). These matters do not make the imposition of the terms requested by the respondent unjust. In the circumstances described above, it is appropriate that those terms as to costs apply. They are reflected in the orders proposed below, paragraph 2 of which will leave the costs orders of the Court of Appeal undisturbed."
3. Whilst the power of this Court to award costs in s 98 of the Civil Procedure Act 2005 (NSW) is a broad one, this is not a case where the order sought by the unsuccessful respondent should be made. It is appropriate, given that an important point of principle is involved, that the unsuccessful respondent should not be ordered to pay the appellant's costs here or before the primary judge.
4. It does not follow, however, that this is a case where the unsuccessful respondent should be entitled to an award of its costs either in this Court or before the primary judge. Unlike CSR v Eddy, this is not a case decided after the grant of special leave to appeal to Australia's highest court. As indicated at the outset, it was common ground that the appellant had a right of appeal to this Court. Whilst there may be cases where it would be appropriate to make such an order as to costs in relation to an appeal to this Court, the present case is not one. The respondent participated fully in the debate in issues before this Court and was wholly unsuccessful.
5. I propose that the order for costs made below should be set aside and in its place there be an order that each party pay their own costs. I propose that no order be made for the costs of the appeal with the expectation that each party will pay their own costs of the appeal.

Orders

1. I propose the following orders: 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: 1. Application allowed; 2. Set aside the decision of the Workers Compensation Commission Appeal Panel dated 27 February 2017; 3. Order that the application to the Workers Compensation Commission Appeal Panel be dismissed.
2. SACKVILLE AJA: I agree with the orders proposed by Payne JA and with his Honour's reasons. I add these observations. [5]
3. Section 66(1) of the Workers Compensation Act 1987 (NSW) (WC Act), which is in Division 4 of Part 3 of the WC Act, provides that a worker who receives an injury that results in a "degree of permanent impairment greater than 10%" is entitled to receive compensation "for that permanent impairment". The heading to Division 4 is "Compensation for non-economic loss". The heading forms part of the WC Act. [6]
4. The expression "permanent impairment" consists of two words, one of which ("permanent") qualifies the other ("impairment"). The expression is not defined in the legislation. Although the expression is primarily associated with workers compensation entitlements, its use is by no means confined to that field. The expression in its ordinary usage connotes injuries or illnesses that have a significant debilitating effect on the person's physical capacities or quality of life for an indefinite period. In my opinion, in the absence of contextual indications to the contrary, the expression is not apt to describe the impact of an injury which is incompatible with the continuation of life and where the victim survives for a very short period, measured in seconds or a few minutes.
5. In my opinion the legislative context supports the conclusion that a fatal injury, where death ensues inevitably within a very short period, does not result in the victim having a "permanent impairment" within the meaning of s 66(1) of the WC Act.
6. Section 3(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) states the "system objectives". The objectives include providing: "injured workers and their dependants with income support during incapacity, payment for permanent impairment or death and reasonable treatment … expenses". (Emphasis added.) This language suggests that a distinction is to be drawn between a worker's permanent impairment and his or her death as a result of a work-related injury. It is true that s 66(1) of the WC Act states that permanent impairment compensation is in addition to any other compensation under the WC Act. However, there is ample work for the provision to do without using it as a basis for construing "permanent impairment" so as to obliterate the distinction between permanent impairment and death in the case of fatal accidents.
7. Section 9(1) of the WC Act provides that a worker who receives an injury is to receive compensation from the worker's employer in accordance with the Act. In the case of the worker's death, the compensation is payable to the worker's dependants. If the respondent's contention is correct, virtually every worker who suffers an injury which causes death swiftly is permanently impaired, if only for the few seconds or minutes prior to death. Yet the legislation contemplates that compensation for permanent impairment will be paid to the worker himself or herself, not to the worker's dependants.
8. A number of provisions governing compensation for permanent impairment are drafted on the assumption that permanent impairment is a long-term condition. Thus, s 65(1) of the WC Act provides that the degree of permanent impairment that results from injury is to be assessed in accordance with Part 7 of Chapter 7 of the WIM Act. Section 324 of the WIM Act (within Part 7) provides that an approved medical specialist assessing a medical dispute may consult with a medical practitioner "who is treating … the worker" and may require the worker to submit himself or herself for examination by an approved specialist.
9. Section 324 and other provisions [7] clearly assume that a worker claiming compensation for permanent impairment will be alive at the time of the assessment and capable of being examined. No doubt there will be cases where a worker suffering permanent impairment within the meaning of s 66(1) of the WC Act dies before the assessment process is complete, perhaps from causes unrelated to the injury. But if the legislation contemplated that fatal work-related accidents would routinely give rise to permanent impairment claims it might have been expected that the statutory assessment process would have specifically accommodated such claims.
10. SIMPSON AJA: I agree with the orders proposed by Payne JA for the following reasons.
11. The starting point is that the purpose of s 66 of the Workers Compensation Act 1987 (NSW) is to compensate an injured worker for the loss of quality of life caused by the workplace injury that will continue for the duration of the worker's life. Although the terminology of the legislation is not explicit in this respect, it is not a sensible or reasonable application of the provision to award compensation to an injured worker the duration of whose life is so circumscribed as to allow no meaningful benefit of the award of compensation to him or her and who (as in this case) had no awareness or consciousness of the loss of quality of life.
12. It is obvious that this approach may, and very likely will, give rise to cases in which disputes will arise as to when, and in what circumstances, compensation will be awarded to a worker the duration of whose life has been curtailed by the workplace injury. There will be other cases (thanks to medical science) where an injured worker's life may be prolonged, but where the worker has no awareness or consciousness of the impairment. Those cases will have to be decided on a case by case basis. It is not possible, in the circumstances of the present case, to define the boundaries of the compensation available under s 66.
13. It will be observed that I have avoided reference to the concept of inevitability of death. The encroachment of that concept is the principal reservation I have with respect to the reasons of the other members of the Court. In my opinion, the concept of inevitability is extraneous to the circumstances of this case, and its encroachment has the potential to distract decision makers in future difficult cases. The inevitability of death confronts, for example, any worker diagnosed with mesothelioma, or other work-related progressive illness; but, in the ordinary case, that inevitability ought not to deprive the worker of the benefit of s 66 compensation that recognises the impairment caused by the injury to the quality of such life as remains. In some circumstances, and a diagnosis of mesothelioma is one example, the duration of life may be significant, and the impairment very substantial indeed. The ultimate inevitability of death plays no part in the determination of whether the worker is entitled to s 66 compensation.
14. In my opinion, the concept of inevitability adds nothing to the issues to be determined in the present case; the issue is not the inevitability of Mr Messenger's death, but its occurrence within a period of time so limited that the injury could not be thought to have any bearing on his quality of life; nor could compensation afford him any meaningful benefit.
15. Moreover, it is possible to conceive of circumstances in which a work injury is such that death is not inevitable, but occurs in a short time by reason (to take one potential example) of the unavailability of medical services.
16. A second reservation, which I need do no more than note, concerns the statement by Payne JA at [68] to the effect that whether a worker has suffered a permanent impairment is an antecedent question of law. I lean to the view that whether a worker has suffered a permanent impairment for the purposes of s 66 is a question of fact. In saying this, I am conscious of the judgment of the High Court in Collector of Customs v Agfa Gevaert (1996) 186 CLR 389; [1996] HCA 36 - a discussion that does not resolve the question in this case.
17. The argument on appeal did not address the question whether a finding of "permanent impairment" was a finding of fact or a conclusion of law. Indeed, the submissions of the appellant appear to have proceeded on the basis that the question is one of fact: see, for example, the appellant's written summary of argument at [13]-[19].
18. It is not necessary in the circumstances of this case to reach a resolution of this question. In Agfa Gevaert, the High Court noted that the distinction between questions of fact and questions of law can be "vital", and that no satisfactory test had been formulated to distinguish between the two.
19. An unequivocal statement by this Court (especially one constituted by five judges) will have significant implications, and is a statement on which I prefer to refrain from expressing agreement until the question has been fully debated.
20. Subject to those qualifications, I agree with the reasons of Payne JA, and the orders his Honour proposes.

Endnotes

1. Human Tissue Act 1983 (NSW), s 33(b).
2. Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"), Ch 7, Pt 7.
3. Workers Compensation Act, s 2A(2).
4. Interpretation Act 1987 (NSW), s 35(1).
5. I refer to the legislation in force at the relevant time in the present tense.
6. Interpretation Act 1987 (NSW), s 35(1).
7. See, for example, WIM Act ss 324(2)(a) (suspending the worker's right to compensation in the event of non-co-operation), 326(1)(3) (the medical assessment certificate must state whether degree of permanent impairment is fully ascertainable).

Amendments 16 August 2018 - Typographical errors in [25], [29], [63] and [72] amended. 26 June 2019 - Citation changed from "Appeal Panel" to specify the decision name as "Mexon v Hunter Quarries" in [18], [20], [29].

Moved the phrase "erred in failing to conclude that" from [43(2)] to [43(2)(a)].

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2019