Personal Injury

When does death equate to permanent impairment?

When does death equate to permanent impairment?

When does death equate to permanent impairment?

Author: Chloe Howard, Lawyer

In November 2017, the Supreme Court of NSW upheld a decision of the Appeal Panel of the Workers Compensation Commission in respect of a determination of whole person impairment.

What is unusual about this case is the worker in question died as a result of his injuries. The Supreme Court ultimately held that a determination of whole person impairment with respect to the death of a worker is dependent on whether an injury is permanent, not the length of time a worker remains alive after sustaining the injury.


Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017] NSWSC 1587

The worker, Mr Ryan Messenger was crushed by a 40-tonne excavator which he was operating while at work and died as a result of the injuries he sustained. The worker’s estate later made a claim pursuant to Section 66 of the Workers Compensation Act 1987 for lump sum compensation for permanent impairment. This claim was denied by the insurer.

The claim was then assessed by an Approved Medical Specialist (“AMS”) for determination of the worker’s level of whole person impairment, who determined that the worker’s injuries were such that death would be unavoidable. The AMS ultimately assessed the worker’s whole person impairment at 0% on the basis that, if the circumstances were different and help and medical assistance had been immediately available, the worker’s injuries may not have been permanent.

The worker’s estate appealed the decision of the AMS. The Appeal Panel then assessed the worker’s impairment at 100%. This decision was then appealed to the Supreme Court by the employer.


Original Decision of the Appeal Panel

When determining that the worker’s level of whole person impairment was 100%, the Appeal Panel referred to a selection of authorities in which the definition of permanent impairment was discussed. In the cases of Bourke v State Rail Authority (1999) and Hillier v Gosford City Council (1998), it was held that where death is inevitable from an injury in a very short timeframe, the permanency of an injury could not be satisfied for the purposes of a claim for permanent impairment.

The Appeal Panel ultimately relied on the authority of Ansett Australia v Dale [2001], where it was held that the definition of permanent did not include a condition that a worker had to live for a certain period of time after sustaining the injury. As long as the injury suffered was an injury that would be permanent, that was sufficient.

In the worker’s case, the medical evidence stated that the worker had suffered the destruction of his respiratory system as a result of the accident. He did not die instantly and continued to breathe after the accident had occurred. The Panel was satisfied that the worker’s respiratory system could never improve and his condition was therefore deemed permanent. The Appeal Panel therefore determined the worker’s level of permanent impairment at 100%.


Findings on Appeal

Schmidt J of the Supreme Court held that whether an injury is permanent or not depends on whether the worker has survived the injury, and whether the injury would be one that is permanent. He found that, on the medical evidence available, whilst the worker’s injuries were severe, he did not die instantly. It was the respiratory injuries which eventually caused his death, as the injuries to his spine were not considered fatal.

Schmidt J determined that the Appeal Panel correctly applied the decision of Dale, and that the worker had suffered a permanent impairment which entitled him to compensation pursuant to Section 66.

He also held that the AMS had erred in her finding of 0% whole person impairment, as the evidence suggested that the worker’s condition was indeed permanent and there was no suggestion that he could recover from the injury.



This case demonstrates that whether an injury is permanent in the death of a worker is dependent on whether the injury is likely to remain permanent, not whether the injury resulted in the death of a worker.

If the injury causes immediate death, the injury would not be considered permanent for the purposes of a claim pursuant to Section 66. It is necessary that the worker lives, even for a small period of time, and that the injury is one that would be permanent, not temporary.


Work Injury claims can be very complicated and stressful. If you have lost a loved one in a workplace injury please make sure you seek legal advice promptly. Veritas Law Firm has a team of accredited specialists and highly qualified lawyers who are ready to help you. Call 131LAW (529) or visit us at


Veritas Law Firm produced this article. It is intended to provide general information in summary form on legal topics, current at the time of first publication.  The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.