The exclusion of an injury from compensation because it arose from 'serious and wilful misconduct' is not absolu — te 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 ti — me after the accident, i.e. after treatment and healing have run their course).