Bourke v State Rail Authority (NSW) [1999] NSWCC 39; (1999) 18 NSWCCR 429 (1 September 1999)

Last Updated: 25 April 2000

[1999] NSWCC 39; (1999) 18 NSWCCR 429

BOURKE v STATE RAIL AUTHORITY (NSW)[1]

[1999] NSWCC 39

Compensation Court of New South Wales: Campbell CJ

30 June 1999 (H)

1 September 1999

Workers compensation - Entitlement to compensation - Injury - Permanent loss - Brain damage - Not permanent when death inevitable within very short time period -Workers Compensation Act 1987 (NSW), s 65, Table to Pt 3, Div 4

Words and phrases - "permanent" - Workers Compensation Act 1987 (NSW), s 65

B.F. Murray QC and T. Muir, for the applicant.

L. King SC and D.G. Saul, for the respondent.

Cur adv vult

1 CAMPBELL CJ: The applicant as executor of the estate of the late Michael Anthony Clegg claims lump sums under the Workers Compensation Acts in respect of permanent brain damage and severe facial disfigurement suffered by Mr Clegg when he was struck by a train on 16 July 1994 in the course of and arising out of his employment with the respondent.

2 Mr B.F. Murray QC with Mr T. Muir of counsel appeared for the applicant and Mr L. King SC with Mr D.G. Saul of counsel appeared for the respondent. Counsels' addresses have been recorded and it is therefore unnecessary for me to refer to each submission merely to ensure that it is noted. Counsel conducted the case with a relevance to the issue in dispute, which permits me to set out my conclusions and reasons for reaching those conclusions in relatively short form.

3 Mr Clegg, after being struck, was taken to the Emergency Department of the Royal Prince Alfred Hospital and was found to have a severe head injury. He came under the care of Dr Michael Besser a well-qualified neurosurgeon who has given evidence before me both by way of report and orally.

4 Mr Bourke's medical condition on admission to Royal Prince Alfred Hospital and thereafter can conveniently be taken from Dr Besser's report of 27 November 1996 as follows:

On admission, he was noted to be bleeding profusely from the nasopharynx and oropharynx which was subsequently controlled with packing. There was gross facial swelling noted. His pupils were fixed and in mid position. Prior to being re-paralysed he was noted to be flexing in response to pain. He was hypotensive, hypothermic and in rapid AF.

An urgent CT scan showed a comminuted depressed right fronto-parietal skull fracture and a right frontal intracerebral haematoma. As well, there were left frontal lobe contusions and a foramen magnum fracture as well as a base of skull fracture running through the right petrous temporal bone. Also there were gross facial fractures.

...

There was a large amount of intracranial air present.

...

It was clear that this man had a very severe head injury and brain injury as well as gross facial fractures and other injuries as outlined above.

Once his coagulation status was corrected, an intracranial pressure line was inserted. His intracranial pressure was very high and refractory to maximal medical therapy. A repeat head scan the following day showed marked increase in the size of the right temporal and right frontal intracerebral haemorrhages, as well as an increase in the haemorrhagic left frontal contusion. There was progressive effacement of the basal cisterns. I felt that surgery had very little to offer other than vegetative survival and it was decided to place the patient in barbiturate coma to see if this could control his intracranial pressure.

His intracranial pressure remained high but brain perfusion was maintained by elevating the blood pressure.

A cerebral angiogram was performed on the 18/07/94 and this showed two areas of reduced blood flow in both cerebral hemispheres but cerebral perfusion was present.

On the 20/07/94, his Glasgow Coma Score was noted to be 3 without evidence of brainstem activity. He remained intubated and ventilated with very difficult to control intracranial pressure. The prognosis for functional recovery seemed hopeless. It was decided to withdraw his barbiturate therapy and on the 21/07/94 he was documented as showing no cerebral activity.

This man has suffered permanent brain damage as a result of his injury to the level of 100 per cent. As well, he suffered gross facial injuries with severe facial disfigurement to the level of 60 per cent.

5 I accept the view of Dr Terenty, a well-qualified neurologist, that with the advantage of hindsight it can be determined that Mr Clegg was bound to die of the effects of the head injury, that he probably would have died within a few hours had it not been for the resuscitation and maintenance treatment that he was given and that the time it took him to die after the cessation of intensive treatment was at least as long as it would have taken him to die had he not been given such treatment.

6 Dr Besser did give evidence in cross-examination as follows:

Q. If you go for me to your report of 11 November 1998, find the paragraph where you speak of the chances of Mr Clegg being a vegetative survivor, it is again fair to say, is it not, that there was never really any chance of his surviving.

A. I don't think you can say that, I have certainly seen in patients with his degree of severity of head injury survive, I don't think one can say that, no.

7 Understood against the background of the doctor's role as the treating neurosurgeon and having regard to all his evidence and, in particular, the passage in his report of 24 February 1999 "I agree that death was inevitable but this only became apparent on the 21 July 1994", I think it clear that the doctor was speaking of a view formed prospectively rather than one reached with the advantage of hindsight.

8 I do not take Dr Besser to disagree with Dr Terenty's view that what was done was to delay the process of dying in the hope that a recovery would occur and her statement "you cannot keep this person alive indefinitely doing what he was having done to him".

9 It is convenient to say at the outset that in order for the applicant to succeed it is necessary to accept that the rights of Mr Clegg under the Workers Compensation Acts accrued and vested at the time of injury and that such rights could be exercised on behalf of his estate. That is the position that was held by majority in the case of TNT Australia Pty Ltd v Horne (1995) 36 NSWLR 630. Mr King did not submit, formally or otherwise, that that case was wrongly decided.

10 The entitlements of Mr Clegg, had he survived, to lump sums in respect of permanent brain damage and severe facial disfigurement appear from, inter alia, s 66 and s 67 of the Workers Compensation Act 1987. It is not necessary to set out those sections here, however, it is to be noted that s 65 provides as follows:

(1) In this Division:

loss, in relation to a thing, means:

(a) ...

(b) the permanent loss of the use, or of the efficient use, of that thing.

(2) In this Division, a reference to a loss mentioned the Table to this Division includes a reference to:

(a) ...

(b) severe facial disfigurement ... and

(c) permanent brain damage

(d) ...

11 Mr Murray put that since it was apparent before Mr Clegg's death that his brain had suffered damage from which it would not recover, his lump sum entitlements arose and were capable of enforcement by the applicant in these proceedings.

12 To this argument Mr King replied that he did not dispute that if Mr Clegg were otherwise entitled to a lump sum then the applicant could claim it. His submission was that it remained necessary for it to be established that the brain damage suffered by Mr Clegg was permanent within the meaning of the statutory provisions I have set out above.

13 He relied upon the time scale of death explained by Dr Terenty and not really contradicted by the reports or evidence of Dr Besser and submitted that, as a matter of language, it was simply not possible to regard a state which was so circumscribed by the inevitable event of death within a few hours, or days (when maintenance treatment was maintained) as being a permanent state.

14 Mr King relied, without further elaboration, upon the views expressed upon the meaning of the word "permanent" as used in this legislation by Armitage J in Hillier v Gosford Shire Council, NSWCC, No. 12293/96, 22 June 1998, unreported.

15 At 6 in Hillier Judge Armitage said:

The clear intention of the statute in using the word "permanent" in section 65(1) appears to me, having regard to those definitions, to be to require that a section 66 loss or impairment, before it is to be compensable, should be likely to "last indefinitely without change", to adopt the dictionary definition adopted in Rolfe's case.

16 The Judge had expressed clear agreement with the view of Wall J in Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR (NSW) 135 where Wall J said at 138:

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.

17 As Armitage J did in Hillier, I do not consider that the requisite of permanency is satisfied in a situation where death was inevitable within a very short time frame.

18 Mr Murray sought to distinguish Hillier, on the facts, because in that case the worker died within 24 hours, the only delay in withdrawing support being the need to consult relatives, whereas Mr Bourke lived for five days and Dr Besser considered that there was some hope he might recover, if only in a vegetative state. I accept, as I have indicated, that Mr Bourke was at all material times certain to die within a short and relatively finite time span. When the concept being considered is one of permanency I do not think there is any valid factual distinction between the two cases.

19 Mr Murray also relied upon some passages from the judgment of Kirby P in Horne as supporting the view that there had been here a permanent loss.

20 The President had noted the submission by the appellant that it would be unsuitable to accept the survival of claims which might follow where a worker survived for one day, one hour or less. Mr Murray referred to the way in which Kirby P dealt with this argument and relied, in particular, upon the following passage:

Upon this reasoning, the deceased worker in the present case likewise enjoyed an "accrued right" immediately on the happening of his injury to have his compensation determined. The fact that, by preoccupation with his medical problems, he did not live long enough to enforce that "accrued right" (as theoretically he might by high expedition of his claim and an urgent hearing) did not affect the character of the right. It had "accrued" to him, in the sense that it was available. It had "vested" in him as a legal entitlement. It had simply not been quantified and enforced. But these deficiencies were unimportant to the nature of the "right" for succession law. The right which had "accrued" was a right of property which passed upon the worker's death, as any other right in the nature of a statutory chose in action, to the legal personal representative. It would require clear disentitling legislation to take that right away from the estate to which it had passed.

21 The difficulty with reliance upon this passage, and some others to which Mr Murray referred, is that permanency of the losses suffered by Mr Horne was not an issue in that Appeal. Kirby P noted at 632:

The appellant raised two defences but the only one ultimately pressed was that "the entitlements to benefits under s 66 and s 67 of the Act do not accrue to the estate of the deceased worker".

22 In the event I am not satisfied on the evidence before me that Mr Burke suffered permanent brain damage.

23 Whilst it is clear that the applicant suffered severe injuries to the face and Dr Besser in his report referred to severe facial disfigurement to the level of 60 per cent, the effect of that evidence was greatly qualified by the doctor when he said that he did not feel himself qualified to express views on the matter and that much could be done by cosmetic surgeons. As the evidence stands, I do not consider that I could regard it as established more probably than not that there would be resultant severe facial disfigurement. That is not to say that I would not think that evidence to establish such a situation could not be forthcoming.

24 In the event I do not need to reach any conclusion on this point for Mr Murray expressly did not argue that the severe disfigurement need not be permanent and in my view the same conclusion as I have expressed above in respect of brain damage applies.

25 The conclusions I have reached and set out compel an award for the respondent and I accordingly make such an award.

Orders accordingly

Solicitors for the applicant: Craddock Murray & Newmann

Solicitors for the respondent: W.R. Harvey & Associates

[1] Subject to appeal