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Universal Consultancy Services Pty Ltd v Mrinal Datta [2008] NSWWCCPD 87. Roche DP.

47. The courts have considered the word "permanent" in several cases. In Henrikson v Grafton Hotel [1942] 2 KB 184 at 196, it was held that "permanent" is a relative term and is not synonymous with "everlasting".

48. In Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR 135, Wall J held (at 138):

"The dictionary meaning of 'permanent' as given in the Shorter Oxford English Dictionary is 'Lasting or designed to last indefinitely without change; enduring; persistent: opp. to temporary.'

"It will be seen that this meaning falls short of the notion of a perpetual state of affairs; and that, whilst what is permanent may continue for all time, it need not necessarily do so."

49. In McDonald v Director-General of Social Security (1984) FCR 354 the Full Federal Court considered the meaning of "permanently incapacitated" in section 124 of the Social Security Act 1947 (Cth) where Woodward J said, at 361:

"In my view the true test of a permanent, as distinct from a temporary, incapacity is whether in the light of the available evidence it is more likely than not that the incapacity will persist in the foreseeable future."

50. In Department of Agriculture (NSW) v Allen (2000) 20 NSWCCR 314 Powell JA considered the word "permanent" in the context of a claim for lump sum compensation under section 66 of the 1987 Act and assumed - at [133] - that it "postulates an impairment which will, at least, remain constant and may even deteriorate and which will be of an indefinite duration".

Davies AJA, Ipp JA agreeing, quoted this passage, with apparent approval, at [41] in Ansett Australia Ltd v Dale (2001) 22 NSWCCR 527.

51. In section 53, the word "permanent" is qualified by the word "nature". I interpret the qualification to mean, "having the qualities of" (Macquarie Dictionary, first edition), though I doubt that the qualification makes any practical difference to the meaning of "permanent".

52. Applying the above authorities, it is my view that an incapacity is "likely to be of a permanent nature" within the meaning of section 53, if it is an incapacity that is lasting and likely (on the balance of probabilities) to be of an indefinite duration. It does not mean a perpetual state of affairs that will continue for all time."

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