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26.5 Misconduct where Death and 'serious' injury result

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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).