Perrott v Crisp

MEAGHER JA : The applicant, the employer, Gardner Perrott, seeks leave to appeal pursuant to Part 5 rule 4 and 5 against the decision of his Honour Judge Curtis handed down on 28 July 1998. The worker, Mr David John Crisp, suffered serious injury to his left foot whilst employed by the claimant, his employer. His doctors opined that he had lost thirty per cent of the use of his left foot. He would have been entitled to lump sum compensation in respect of this loss under s.66 of the Act. However, he made no such claim as he died on 24 November 1996. On 21 April 1997 his widow, the present respondent, was granted letters of administration of his estate. On 25 August 1997, she issued an application in the court for the sum of $19,500 in respect of her husband's loss. The appellant took the gallant point that whilst Mr Crisp would have been entitled to that amount had he lived, his widow was not so entitled. In this respect it relied on s.273 of the Workers' Compensation Act 1987 which at the time said: "1. Compensation under this Act or the former Act (a) is not capable of being assigned, charged or attached; and (b) does not pass to any other person by operation of law or should any claim be set off against that compensation. 2. Subsection (1) has no effect to the extent to which, but for this subsection, it would operate to prevent (b) the passing of accrued vested rights of a deceased worker to the legal personal representative."

That section was subsequently repealed by Act 85 of 1998 which came into force on 1 August 1986. However, the old section has in substance been re-enacted as section 235 of the Workplace Injury Management and Workers' Compensation Act 1998 which commenced on 1 August 1998.

His Honour Judge Curtis was not impressed by the employer's argument. He relied on the decision of this Court in TNT Australia Pty Limited v Horne (1995) 36 NSWLR 630. In that case, as in the present case, the employer endeavoured to restrict the legal personal representative's right by suggesting that the words "vested" or "accrued" imposed a limitation. Of this suggestion, Kirby P said: "Some claims, such as the total loss of eye, involve no necessity of litigation at all. The provision of a court and an award constitute the machinery of the quantification and the 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 the same time the right vests for the purpose of section 273(2)(b), at least in such a case 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."

Like Judge Curtis, I think that this disposes of the matter. Truly, this solution has its mysteries, such as why the words "vested" and "accrued" were used at all in the legislation. Nevertheless, it has the merit of being the best solution available as well as the further merit of achieving justice.

In my view therefore the following orders should be made. 1. Leave to appeal granted. 2. The claimant to pay the costs of the application for leave. 3. Appeal dismissed with costs.

FOSTER AJA : Yes, I agree.

DAVIES AJA: I agree with Meagher JA.

MEAGHER JA : The orders of the Court therefore will be the orders which I proposed.