Crisp v Gardner Perrott [1998] NSWCC 29; (1998) 16 NSWCCR 581 (28 July 1998)

[1998] NSWCC 29; (1998) 16 NSWCCR 581

CRISP v GARDNER PERROTT
(A DIVISION OF BRAMBLES AUSTRALIA LTD)
Compensation Court of New South Wales: Curtis J
28 July 1998
Workers compensation - Persons entitled to compensation - Legal personal representative of deceased worker - Worker's accrued rights to compensation vested at time of injury - Worker dies before duly making a claim under s66 - Passing of accrued vested rights by operation of law not affected - Workers Compensation Act 1987 (NSW), ss66, 106E and 293; Sch6, Pt6, cl18
J.T. Kearney, for the applicant
J.H. Pearce, for the respondent
Ex tempore
1 CURTIS J: A worker, David John Crisp, suffered serious burn to his left foot in the course of his employment with the respondent on 17 September 1996. On 14 November 1996 he was referred to Dr Christopher Howe, a plastic and reconstructive surgeon. Dr Howe examined the foot and he formed the opinion that, while further conservative treatment was called for, Mr Crisp was likely to have long term problems with skin breakdown and ulceration and would be unable to continue in his occupation as an operator standing on the leg.
2 Dr Howe concluded his report of 23 March 1997 with these words:

The percentage loss of function/permanent disability of the left foot is in the order of 30 per cent and which related to approximately 20 per cent loss of function of the left leg.

3 Mr Crisp died of a heart attack on 24 November 1996. He had made no claim for compensation pursuant to s66 of the Workers Compensation Act 1987 (the Act) for lump sum compensation in respect of permanent loss of use of his left leg resulting from his work injury.
4 On 29 April 1997 the applicant, Pamela Crisp, the widow of the worker, was granted administration of his estate. On 9 May 1997 the applicant's solicitors gave notice of this claim and on 25 August 1997 issued the application for determination claiming $19,500 in respect of 30 per cent permanent loss of use of the left foot.
5 The respondent qualified Dr Desmond Rea, another plastic and reconstructive surgeon, by providing him with reports of the treating doctors. Dr Rea on 3 March 1998 expressed the opinion that because burns of the feet take a long time to settle down the possibility remained that the deceased may have been left ultimately with no disability at all. He did concede the possibility of a 5 per cent disability persisting.
6 Dr Howe actually saw the state of the foot and from his long experience was able to form a view as to the probable course of recovery. It is for this reason that I prefer his opinion to that of Dr Rea.
7 The respondent, however, submits that even if the worker suffered the permanent loss and would have himself have been entitled to claim and receive compensation in respect of his loss had he lived, those rights have not passed to his estate. The argument proceeds as follows. S273(1)(b) of the Act operates to prevent the "passing" of compensation to the estate unless the right to the compensation was "an accrued vested" right of the worker upon his death as provided in the exception contained within s273(2)(b) of the Act.
8 In this submission the words "accrued" and "vested" are to be construed separately although conjunctively. A right is "accrued" at the moment the injury results in the worker suffering a permanent loss. It is not, however, "vested" until it becomes fixed by accord or capable of determination by a court. That is, no right vests until that moment when it is capable of enforcement in a sum certain pursuant to a judgment of the court. Because the provisions of s106E of the Act prevent the institution of court proceedings in respect of compensation until 12 weeks after a claim for compensation is made and the deceased had made no such claim, it is said he died without any vested right to receive compensation in respect of his injury. The requirements of s273 of the Act are not satisfied. The widow gets nought.
9 The argument revolves around the meaning to be given to "vested" in s273. A similar argument was addressed to the Court of Appeal in the matter of TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497. The argument is summarised by Kirby P at 504 in these terms:

The appellant placed emphasis upon the double adjectival expression "accrued vested rights". Only if "accrued" rights of a deceased worker had "vested" could they survive and pass to the worker's legal representative. The use of "vested" imported a notion additional to "accrued". It implied an actual ascertained and enforceable right, which was not conditional or uncertain in any way. It thus excluded any accrued right of the deceased worker in this case because, prior to his death, no action had been taken by the worker to have the exact quantification of his "accrued rights" under section 66 ascertained, quantified and thus "vested" by the procedures contemplated by the Act, viz. the making of an award by the Compensation Court. See the Act, section 107 and Compensation Court Act 1984, section 15(1). Thus, even assuming that otherwise "accrued" rights might pass to a deceased worker's legal personal representative (contrary to argument 2 above) the rights presently claimed under section 66 of the Act will not pass because they were not "vested" at the date of the worker's death.

10 Mr Justice Kirby addressed this argument at 513 of his judgment where he said this:

The suggestion that an award of the (Compensation Court) is necessary for a "vested" right is unconvincing. Although many claims under section 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 ... involve no necessity of litigation at all. The provision of a court and an award constitute the 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 fight "vests" for the purpose of section 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.

11 It seems to me that the authority of Horne is sufficient to answer the submissions of the respondent. Mr Pearce, however, argues valiantly that a further complication occurs because of the effect of cl18 of Pt6 of Sch6 to the Act which operated at a time subsequent to the worker's death to alter the quantum of compensation payable in respect of his loss had he survived. In this context it is submitted the rights were sufficiently uncertain as at the date of the worker's death to vest. That, as I understand it, was because if the worker made his claim within one period of time, his rights were determined pursuant to one regime of quantification. If he had made his claim at a later time his rights were determined by another regime of quantification. Because it was not possible at the date of his death to know when his claim would be made, the entitlement remained essentially uncertain.
12 This argument does not grapple with the nature of that which had vested as at the date of death. That which vested was the entitlement to claim the compensation, however it may be assessed in respect of a right to the compensation that, upon the authority of Horne, vested in the worker as at the date of the injury.
13 Mr Pearce does argue that Horne is an inapposite source of authority because in that case there was no dispute that the totality of the loss occurred as at the date of the injury. However, that argument addresses questions of fact and as a question of fact I find that 30 per cent permanent loss of efficient use of the applicant's left foot occurred at the moment of his injury on 17 September 1996.
14 I order that the respondent pay to the applicant $19,500 in respect of 30 per cent permanent loss of efficient use of the left foot.
15 I order the respondent to pay the applicant's costs.
16 I order a stay for 28 days on the condition that the respondent lodge an appeal.
Orders accordingly
Solicitors for the applicant: Moroney Rutter Manatch
Solicitors for the respondent: Sparke Helmore