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26.5 Misconduct where Death and 'serious' injury result


The exclusion of an injury from compensation because it arose from 'serious and wilful misconduct' is not absolute but has limits.

Section 14(3) of the SRCA provides:

14(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment

Section 27(3) of the 1971 Act and S9(3) of the 1930 Act make a virtually identical concession, except that in both cases, the degree of injury is expressed as:

...death or serious and permanent disablement of the employee...

The issue of whether the client has suffered death because of the misconduct, is usually a non-controversial issue, to be settled on the facts. However, whether an injury resulting from misconduct has resulted in serious and permanent impairment/disablement is a matter for determination.

The presence of a permanent impairment is a factual matter to be resolved on the basis of an expert medical opinion (though the issue of permanence may only resolve quite a long time after the accident, i.e. after treatment and healing have run their course).