NSW Court Of Appeal | EssayIvy.com

NSW Court of Appeal

Justice Edelman’s Associate

May 8, 2019

Re: Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late

Ryan Messenger [2018] NSWCA 178.

Executive Summary

Case Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the

Late Ryan Messenger [2018] NSWCA 178, involves a case the NSW Court of Appeal

allowed for the appeal of the above case. This was implemented after Justice Schmidt

awarded permanent impairment to the estate of a worker who was involved in a workplace

injury and later died. In the allowing of this appeal, the Court of Appeal established there

was no claim to permanent impairment compensation under section 66 of the Workers

Compensation Act 1987 (WCA) where a workplace injury was so serious that it was

followed by death within a few minutes. After the Court of Appeal got to this decision, it

considered the definition of “permanent impairment” as indicated in Section 66 of the

WCA. However, WCA states that for a worker involved in a workplace injury that results

in permanent impairment greater than 10% is entitled to compensation for the permanent

impairment. This led to the identification of the following issues;

1. Whether “permanent impairment” as used in ss 65 and 66 WCA and s 322 (1) WIMA

encompasses impairment so serious that death will inevitably follow within a short time

frame; and

2. Whether Justice Schmidt should have concluded that the MAP erred in setting aside

the “Reconsideration” MAC.

Relevant legal issues

In the ruling that was realized, the NSW Court of Appeal did not provide any form of

permanent impairment under section 66 of the Workers Compensation Act in a scenario

where the injury that was purported was so severe that death was inevitably following in

the next few minutes. In summary, there were certain facts about the case that were needed

to be addressed of focused on prior to moving on to interpreting the case as a whole. The

case entailed an injury that was severe to a point that it affected the upper body of the

victim and eventually dying after a few minutes of the accident. Seeing that this was a

work-related injury and death, the employer acted under Article 25 and 26 WCA and paid

compensation. However, the Estate claimed other compensation which was under the s 66

WCA, that was disputed in the court

. In the initial claim, the dispute was for a 100% WPI

but after reconsideration, it dropped to 0%. However, the WPI was still 100% in that the

estate appealed a MAP revoked the consideration. This led to the request for application

for a judicial review for the Supreme Court of NSW and Schmidt J and as a result, leading

to the granting of a SIRA leave to create room for an intervention1.

Interpretive criteria

There were various considerations that led to the passing of an appeal regarding this case.

The NSW considered the definition of the main subject which is permanent impairment

and whether this definition is present the provided statues. It also considered the

implementation of permanent impairment compensation as stated under section 66 of

WCA. Justice Payne explained that based on the case, it is enough to conclude that

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

Messenger(2019) 1 NSWCA 178.

permanent impairment as it is stated in section 65 and 66 of the WCA and WIM Act does

not include the situations that are followed by death and also, as in this case, where the

injured died minutes after1. He then explained that for there to be permanent impairment,

there had to be some continuous experience of the living. On the same note, Justice Schmidt

explained that the worker might undergo a 100% permanent impairment even though death

occurred not long after the injury and therefore concluded, with reference from section 66

of WCA, that it is provided in the Act only in that case would the worker be compensated.

She also concluded that in case the worker died immediately then there is no compensation

of the worker provided by the statutory. From this information, it is clear that Judge

Schmidt considered the fact that if there were some minutes before the worker died and

during these minutes, they experienced permanent impairment, then they would be

compensated. Judge Payne did consider the fact that there was no indication in the Acts

regarding the situations that were followed by death

Justice Payne stated that with the respondent’s submission to the WCA and WIM Act, it

leaves for rejection the question to medical professional opinion. In this case, whereas it

may be accepted the fact that the impairment caused is either permanent or temporary, the

restriction to the explanation of the term permanent impairment is not vindicated by WCA.

In the same context, Justice Schmidt noted the fact that MAP (Medical Appeal Panel) had

been conducted and the results showed evidence that the impairment that resulted from the

injury was permanent. Therefore, the damage caused would have been part of the worker

for the rest of his life2. Regardless of all this information from MAP, she dismissed the

appeal after concluding that the term permanent impairment was not bothered by the

Anita S. Krishnakumar, "Textualism And Statutory Stare Decisis" [2018] SSRN Electronic

Journal.

consequences of the impairment. Both judges did not put into consideration the opinion of

the medical team, but Justice Payne pinned his refusal on what was indicated in the WCA.

While Justice Schmidt based her refusal on the definition of the term permanent

impairment.

Since the judgment made by Justice Schmidt was based on the presented MAP results, that

indicated the worker had suffered permanent Impairment at 100%, the employer who is

Hunter Quarries Pty Ltd appealed the case to the NSW Court of Appeal. When the case

was presented to the Justices, they viewed the case with considerations that Justice Schmidt

did not consider. The Justices in the Court of Appeal were Justice Payne and four other

Justices. Justice Payne dismissed the idea that injuries would result in permanent

impairment and these injuries would not arise where the death occurred immediately

stating that this was only an illusion

. Regardless of the ruling of Justice Schmidt, she had

her opinion on the introduction of a precondition of survival in the issue on permanent

impairment for a specific period of time which would involve the introduction of a concept

in the legislative scheme.

During the review, there was the reference of other cases that were quite useful in the

progress or analysis of this compensation. Schmidt noted that the MAP that had been

provided by the Court of Appeal in the case of Ansett Australia v Dale did not provide

sufficient backing to the current case as it did not establish where death was inevitable. The

ruling was as a matter of fact very focused on permanency and in relation to the case, this

would have required evaluation of the facts at hand and their dependence to the matter. The

Elizabeth Garrett, "Attention To Context In Statutory Interpretation: Applying The Lessons Of

Dynamic Statutory Interpretation To Omnibus Legislation" (2002) 2(2) Issues in Legal

Scholarship.

ruling judge indicated or made her ruling based on the legislative scheme where she stated

that “a worker may suffer a 100% permanent impairment even if death follows not long

after the injury and is only in the case where a worker is killed instantly that the statutory

scheme does not provide for the worker to be compensated under s 66 WCA”.

In her

ruling, she held that;

“84. What s 66 does not provide, is that there is to be no compensation payable in the

event that death later results, within a particular time frame, as it easily could have, if

that had been intended…

87. All of this supports the conclusion that the obligation to pay compensation for

permanent impairment, even when death eventuates shortly after the injury or when

life does not endure, is simply a part of the balance which has been struck in this

legislative scheme.

88. That under this statutory scheme, in the event of dispute, an approved medical

specialist is to determine whether a worker has suffered a permanent impairment,

applying the Guidelines issued under s 376 of the 1998 Act supports this conclusion,

given that they are also not concerned with the consequences of impairment on a

worker’s lifespan.”1.

Therefore, Schmidt held that the MAP did not commit any jurisdictional error and as such,

dismissed the summons. This led to the presentation of the appeal where the insurer

appealed and alleged that Schmidt J had incorrectly alluded that permanent impairment

comprised of only impairment that was serious that it led to death and that the MAP acted

in a wrong construction of the permanent impairment. As such, it had a jurisdictional error

J. Barnes, "Contextualism: The Modern Approach To Statutory Interpretation." (2018)

41 UNSWLJ.

of the law on the face of the record as it also set aside the AMS.

However, the case was analyzed from a much deeper perspective with the Court of Appeal

coming up with its own analysis or perspective. First, it identified that whether permanent

impairment as used in ss 65 and 66 WCA and s 322 (1), it can be described to entail any

impairment that is so serious that death is without a shred inevitable

. Additionally, it also

argued that Schmidt ought to have concluded that the MAP incorrectness put aside the

reconsideration of the MAC. Due to this error by Schmidt, it created room for an appeal

which the Court of Appeal also came up with different reasons as to how it could be focused

on approach.

The conclusion reached by the NSW Court of Appeal

The conclusion reached by NSW Court of Appeal resulted from various steps in the

legislative scheme. This includes the first Justice who ruled on the compensation of the

worker on the basis of permanent impairment. The employer later applied for an appeal in

NSW Court of Appeal which rotated around the definition of the term ‘permanent

impairment’ and the consideration of WCA. In the Court of Appeal, the case was presented

to five Justices including Justice Payne. All the five Justices weighed all the necessary legal

issues together with the Acts related to the case.

Each and every Justice gave their ruling, and all their ruling were considered in the final

conclusion reached by the NSW Court of Appeal. It concluded, regarding permanent

impairment compensation under section 66 of the WCA, that this compensation would not

be implemented in the situation where the workplace injury would be so serious resulting

to death within a few minutes. It also concluded that in each individual case, there would

Kate Galloway, "Statutory Interpretation And Access To Justice: Text, Context And Purpose"

[2018] SSRN Electronic Journal.

be considerations of different factors in relation to the case. Some of these factors listed

include; the length of the time frame between the occurrence of the injury and death

because this is enough in determining whether the injury in question would result in

permanent impairment.

The opinion of the Decision arrived at by the NSW Court of Appeal

I agree with the conclusion reached by the NSW Court of Appeal. This is because the ruling

made by the involved Justices was fair in my opinion and it involved all the necessary

information and Acts. This is because the conclusion made by NSW Court of Appeal is

based on various considerations including the length of time between the occurrence of

injury and death, the fact that the injured person was conscious or unconscious, whether

there was a constant experience of living and also the magnitude to which the injured

individual was conscious. All these considerations bring about the fact that all similar cases

related to this case are treated differently while concluding on the ruling. This is evident

given that the above considerations are different and unique to each case.

In conclusion, the case entailed a wide variety of factors that were looked into before

arriving at the decision that was arrived at in the long run. In this case, the Court of Appeal

first evaluated the decision that was made in the first court critically, evaluating the errors

and any other issues that might have been risen within the case, therefore, I agree with the

decision that was arrived at based on the competence and analysis that was provided.

Bibliography

Barnes, J., "Contextualism: The Modern Approach To Statutory Interpretation." (2018)

41 UNSWLJ

Brudney, James J., "Statutory Interpretation As Diplomacy" (2002) 2(2) Issues in Legal

Scholarship

Chacón, Jennifer M., "Statutory Analysis: Using Criminal Law To Highlight Issues In

Statutory Interpretation" [2011] SSRN Electronic Journal

Galloway, Kate, "Statutory Interpretation And Access To Justice: Text, Context And

Purpose" [2018] SSRN Electronic Journal

Garrett, Elizabeth, "Attention To Context In Statutory Interpretation: Applying The

Lessons Of Dynamic Statutory Interpretation To Omnibus Legislation" (2002)

2(2) Issues in Legal Scholarship

Krishnakumar, Anita S., "Textualism And Statutory Stare Decisis" [2018] SSRN

Electronic Journal

Lane, Patricia, "Statutory Interpretation: Caught In The Act!" [2017] SSRN Electronic

Journal

Mashaw, Jerry Louis, "Agency Statutory Interpretation" [2003] SSRN Electronic Journal

Putman, William H, Legal Analysis And Writing (Delmar Cengage Learning, 2013)

Ramsay, I and B Saunders, "An Analysis Of The Enforcement Of The Statutory Duty Of

Care By The Australian Securities And Investments Commission" (2018)

36(6) Company and Securities Law Journal

Steele, James, "Statutory Forebears: Legislative Evolution As A Means Of Statutory

Interpretation" (2017) 39(3) Statute Law Review

Tongue, S., "Statutory Interpretation-Legislative Literacy" (2019) 26 Austl. L. Libr.

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

Ryan Messenger (2019) 1 NSWCA 178

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