Australia: Is There Pain & Suffering After Death?

Legal Directions – July 2010
Last Updated: 19 July 2010
Article by Prue Flinn

Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) v De Martin and Gasparini Pty Limited and Anor [2010] NSWWCPD46 (4 May 2010)

President Judge Keating affirmed the decision of the Arbitrator that a worker who died after Approved Medical Specialist ('AMS') assessment during proceedings is not entitled to compensation for pain and suffering under the Workers' Compensation Act 1987 (NSW) ('the Act').


On 7 May 2009, Mr Ponticello brought proceedings against his employer claiming compensation pursuant to s66 of the Act in respect of permanent impairment of the back and legs, loss of use of his sexual organs and a claim for pain and suffering under s67.

The employer's reply annexed medico-legal evidence which led to the resolution of the matter with respect to the lump sum dispute relating to sexual organs.

The matter was then remitted to the Registrar and for an AMS assessment of permanent impairment of the back and legs. The consequent medical assessment certificate ('MAC') was issued on 10 August 2009. Mr Ponticello died on 3 September 2009.

Decision of Arbitrator

Mr Ponticello's estate proceeded with his claim for compensation under sections 66 and 67. There was no issue that the right to compensation for permanent impairment survived for the benefit of the estate. The issue that arose was whether Mr Ponticello's estate was entitled to receive compensation under s67.

Pursuant to Section 67(1):

(1) "A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker's employer as compensation for pain and suffering resulting from the permanent impairment..."

However, pursuant to Section 67(5):

(5) "Compensation under this section is not payable after the death of the worker concerned."

The estate submitted that the entitlement to compensation under s67 arose as at the date of the MAC and the worker died during a period when judgment was "reserved". The Arbitrator stated in response:

"I do not accept that submission, as there has been no conclusion reached in respect of s67 matters to arrive at a point where reserved judgment was being contemplated. At best, given the MAC is conclusively presumed to be correct in the absence of any appeal to the Medical Appeal Panel, it can only be said that the matter had reached conclusion in respect of lump sum compensation pursuant to s66, but not s67 pain and suffering, which was still to be considered. It may be the case, for example that post-MAC, the Commission might have elected to hear evidence from the applicant in its deliberations regarding s67, but that stage had not yet been reached, as the matter had not at that time come before the Commission's first stage of teleconference."

The Arbitrator looked to the reasoning of Priestley JA in Bresmac Pty Limited v Starr, in that the express wording of s67(5) made it clear that the entitlement to compensation under s67 was personal and it was to compensate for actual pain and suffering, which could not be realised after the worker had died. The claim was dismissed.

On Appeal

On Appeal, the estate argued that the Arbitrator erred in finding that the worker's rights to compensation under s67 were extinguished on his death by operation of s67(5), given that:

  • The MAC was issued prior to the worker's death
  • The parties executed a complying agreement under s66A prior to the worker's death.

The estate sought to distinguish this matter from Bresmac. It was argued that compensation was recoverable by a worker who died subsequent to judgment, as a debt owing to the estate. It was submitted that a MAC, a certificate of determination, or an agreement, are all equivalent to 'judgments' and remained enforceable.

The submission was that the worker became entitled to s67 compensation on 10 August 2009, the date of the MAC, and consequently, the worker died at a time of a "reserved judgment" which remained enforceable by the estate.

The estate argued that Mr Ponticello was alive when he entered into the complying agreement to settle the claim for loss under s66 for loss of use of sexual organs and for his claim under s67 "to be agreed or assessed". This was the relevant time when compensation became payable, and in their submission was an agreement enforceable by the estate.

The employer argued that there had been no judgment in the worker's favour prior to his death and Bresmac should be followed. This was despite the fact that the worker would have satisfied the threshold to recover compensation under s67, had he been alive. The employer also submitted that whilst a MAC certifies certain losses, it is not an order of the Commission in favour of the worker prior to his death.

Findings on Appeal

President Judge Keating reviewed the authorities and confirmed that the issuing of a MAC is not equivalent to a determination of a dispute by the Commission. The MAC determines only the degree of permanent impairment. The entitlement to compensation for the impairment is determined by the Commission. The President added that the MAC in earlier proceedings does not create a binding estoppel in later proceedings between the same parties.

The submission that Mr Ponticello died when there was a 'reserved judgment' was rejected. At the time of his death the parties were yet to tender evidence upon which they relied, or make submissions in respect of pain and suffering for the purposes of s67, which would have then concluded the proceedings.

In the President's view, at the time of his death, the hearing of Mr Ponticello's entitlement to s67 compensation had not started. The President went on to confirm that the filing of the Application and Reply was not the commencement of a hearing.

Addressing the submission that this matter should be distinguished from existing case law as the worker had a complying agreement, the President confirmed the agreement particularised the degree of permanent impairment and compensation payable pursuant to s66, and stated that s67 compensation was to be "agreed or assessed". At the time of his death, no agreement had been reached between the parties, and the Commission had not determined the quantum of s67 compensation. Following the reasoning in Booker Industries Pty Limited v Wilson Parking, the President held that this agreement was no more than an agreement to agree, which was unenforceable. An agreement of this sort did no more than preserve the worker's right to agree at a later date the quantum of compensation or have it determined by the Commission.

The President affirmed that the Arbitrator was bound by the express statutory prohibition in s67(5), and held:

If it was parliament's intention that when creating the new statutory workers compensation scheme under the jurisdiction of the Workers Compensation Commission, compensation under s67 survived the death of a worker for the benefit of the worker's estate, it would have expressed it in clear terms. It did not. The express terms of s67(5) extinguish the right to the payment of compensation under s67 after the death of the worker concerned.


This case serves as an assurance that entitlement to compensation for pain and suffering is an entitlement that will not survive to benefit an estate, in the absence of an award prior to death.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.