PARTIES:	TIVER CONSTRUCTIONS PTY LTD
V
CLAIR

TITLE OF COURT:		In the Court of Appeal of the Northern Territory of Australia

JURISDICTION:	APPEAL from the Supreme Court of the
Northern Territory of Australia exercising Territory Jurisdiction

FILE :	AP 1 of 1992

DELIVERED:	Delivered at Darwin 22 October 1992 HEARING DATES:	Heard at Darwin 18 June 1992 JUDGMENT OF:	Gallop, Martin and Mildren JJ
CATCHWORDS:

APPEAL	AND	NEW	TRIAL			-	Appeal - General		principles		-	In general		and		right		of		appeal		Appeal	from	workers compensation			Court	and			Supreme	Court			Nature			of Questions of law only - Finding that injury arose out of or in	course		of		employment			question		of	fact	or		law Determinative tests discussed

Workmen's Compensation Act (NT),s26 Supreme Court Act (NTJ,s51
ANZ Executors and Trustees Pty Limited v Nader Jones (unreported, Supreme Court of the NT, Asche CJ, 12/8/86), applied.
Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR
139, applied.
Bill	Williams	Pty	Ltd	v	Williams	(1972)	126	CLR	146,
applied.
Dennis v AJ White & Co (1917] AC 479, applied.
Edwards	(Inspector	of	Taxes)	v.	Bairstow	[1956]	AC	14,
applied.
Fenton v Thorley (1903) AC 443, applied.
Harris	v	Associated	Portland	Cement	Manufacturers	Ltd
[1939) AC 71, applied.
Hope v Bathurst City Council {1980) 144 CLR 1, applied. Humphrey Earl Ltd v Speechley {1951) 84 CLR 126, applied. J & P Hutchison v McKinnon (1916] 1 AC 471, applied.
John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11,
applied.
Lancashire & Yorkshire Railway Co v Highley (1917) AC 352,
applied.

APPEAL     AND  NEW TRIAL    -	In general and particular grouncrs - Review of quantum of award - Weekly payments - Redempt'ion ·· by lump sum - Error of law - Failure to properly exercise discretion		·	·

Workmen's Compensation Act (NT),ss?,10 and Schedule 2 Azzopardi  v. Tasman UEB Industries Limited	(1985) 4 NSWLR 139, applied.
House v R (1936) 55 CLR 499, applied.
Michaelis Hallenstein v Lewis (1944) 68 CLR 613, applied.
Darling	Island	Stevedoring	v Jacobsen	(1945) 70 CLR 635, referred to.
Haines v Leves (1987) 8 NSWLR 442, referred to.
Sharp v Wakefield (1891) AC 173, referred to.
Soulemezis	v	Dudley	(Holdings)	(1987)	10	NSWLR	247, referred to.
Watkins v Renata (1984) 29 NTR 38, referred to.
STATUTES - Operation and effect of statutes - Judicial pronouncements not to be construed in same way as Acts - Predominance of legislation over general law
Workmen's Compensation Act (NT),s7
Hatzimanolis	v	ANI	Corporation	Ltd	(1992)	106	ALR	611, discussed.
STATUTES - Operation and effect of statutes - Workers' compensation - Interval or interlude - Journey - "Gross misconduct" - "Serious and wilful misconduct" - Abandonment and resumption of employment
Workmen's Compensation Act (NT),s7
Harris	v	Associated	Portland	Cement	Manufacturers	Ltd
(1939] AC 71, applied.
Hatzimanolis	v	ANI	Corporation	Ltd	(1992)	106	ALR	611, discussed.

WORKERS' COMPENSATION - Entitlement to and liability for compensation - Whether injury arose out of or in course of employment - Interval or interlude - "Gross misconduct" - "Serious and wilful misconduct" - Journey - Abandonment and resumption of employment
Workmen's Compensation Act (NT),ss7,8
Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, applied.
Harris	v	Associated	Portland	Cement	Manufacturers	Ltd
(1939] AC 71, applied.
Hatzimanolis	v	ANI	Corporation	Ltd	(1992)	106	ALR	611, applied.
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, applied.

WORKERS'	COMPENSATION
compensation - Redemption of Review	of	error	of	law	- discretion

Assessment and amount of weekly payments - Lump sum - Failure to properly exercise

Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, applied.

House v R (1936) 55 CLR 499, applied.
Michaelis Hallenstein v Lewis (1944) 68 CLR 613, applied.
Darling	Island	Stevedoring	v Jacobsen	(1945) 70 CLR 635, referred to.
Haines v Leves (1987) 8 NSWLR 442, referred to.
Sharp v Wakefield (1891) AC 173, referred to.
Soulemezis	v	Dudley	(Holdings)	(1987)	10	NSWLR	247, referred to.
Watkins v Renata (1984) 29 NTR 38, referred to.

REPRESENTATION:
Counsel

Appellant: Respondent:

Solicitors Appellant: Respondent:

T Riley QC/	C Ford G Hiley QC/	J Reeves

Elston & Gilchrist Buckley & Stone

Judgment Category classification: CAT A Court Computer Code:
Judgment ID Number: MIL92027 Number of pages: 31
General Distribution

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN

NI AP 1 of 1992
ON APPEAL from sec 293 of 1991 BETWEEN:
TIVER CONSTRUCTIONS PTY LTD
Appellant

AND:
STEPHEN JOHN CLAIR

Respondent

CORAM: Gallop, Martin and Mildren JJ

REASONS FOR JUDGMENT
(Delivered 22 October 1992)

Gallop J:
In this matter I have had the benefit of reading in draft form the judgment of the other members of the Court. I agree with the conclusions reached, the reasons for those conclusions and with the orders proposed.

I wish only to add a few observations of my own in relation to the nature of the proceedings before the Supreme Court and the nature of the appeal to this Court.

The appeal from the magistrate to the Supreme Court was brought pursuant to s26 of the Workmen's Compensation Act as amended by Act No. 47 of 1984 which provides for appeal "on a question of law". As was pointed out by Asche CJ in Nader Jones v. ANZ Executors and Trustees Ltd (unreported, 12/8/86) the provisions of s26 as they were before the amendment constituted an appeal by way of a hearing de novo. The amendment did away with a hearing de novo and confines an appeal to a "question of law". But the borderline between questions of law and questions of fact is notoriously difficult to delineate. Asche CJ went on to consider the grounds of appeal in that case and concluded that they lay well within the boundaries of the expression, "a question of law".

It follows that on the appeal from the magistrate to the supreme Court, the appellant had to identify an error of  law upon which the decision appealed from was based (see Kuswardana v Minister tor Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334; Director-General of Social
Services v Hangan (1982) 45 ALR 23; 70 FLR 212). The Court must be careful to avoid elevating a disputed finding of fact into a question of law (see Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131; 3 ALO 707; Federal Commissioner of Taxation v swift (1989) 18 ALO 679; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146).

The appeal from the Supreme Court to this Court is not confined to a question of law. The right of appeal is given by s51(1) of the Supreme Court Act, which reads:
"51. RIGHT OF APPEAL
Where the jurisdiction of the Court in a proceeding or a part of a proceeding was exercised otherwise than by the Full Court, the Master or a referee, a party to that proceeding may, subject to this Act, appeal to the Court from a judgment given in that proceeding or part, as the case may be."

Section 54 provides that this Court shall have regard to  the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence.  Those powers are prescribed by s55 and are quite extensive, and include the power to grant a new trial.

Those provisions, in my opinion, grant· a right of appeal not confined to questions of law and really amount to an appeal by way of rehearing. The nature of the appeal so provided certainly appears to provide for an appeal other than an appeal in the strict sense.

It is important to identify the nature of the appeal from the Supreme Court to this Court because that is the appeal under consideration. In other words, this Court is required to review the decision of the Supreme Court, not to

entertain a rehearing of the case before the magistrate. The distinction is important. An appeal by way of rehearing is generally speaking, a trial over again on the evidence used in the court below (per Dixon J, as he then was, in Victorian Stevedoring and General Contracting Co. Pty Ltd & Meakes v. Dignan (1932) 46 CLR 73 at 107-110, citing Jessel
MR in Quilter v. Mapleson (1882) 9 QBD 672 at 676). The reason it is important to identify the nature of the appeal by way of review of the decision of the Supreme Court is that even though some of the magistrate's findings of fact were challenged before the Supreme Court, they were accepted and acted upon by the Supreme Court, because there was evidence to support them. This Court should not review them.

Senior counsel for the respondent submitted that the conclusion by the magistrate that the respondent suffered injury arising out of or in the course of his employment was a conclusion of fact not of law, which could not be disturbed on appeal to the Supreme Court, and that even if the conclusion was a question of law, the decisions of the Courts below were correct.

My brethren in this matter have expressed the opinion that the conclusion that the respondent suffered personal injury by accident in the course of his employment is a question of law and they cite the authorities. I find myself of a different opinion. The primary facts as found by the magistrate required an ultimate decision whether the respondent suffered personal injury by accident arising out of or in the course of his employment. The magistrate made the decision in the respondent's favour and the legal consequence was an award of compensation. The case on appeal to the supreme Court was not that there was no evidence to support the decision made, or one in which the evidence was inconsistent with and contradictory of the

decision, conclusion

or one	in which	the	true	and	only	reasonable contradicted	the		decision.	If		any		of	those

alternative sets of circumstances had existed, it would be

correct to say that the decision was a question of law (Edwards (Inspector of Taxes) v. Bairstow (1956) AC 14 per Lord Ratcliffe at 36). The decision  of the Supreme Court did not involve a determination of whether there was evidence upon which the learned magistrate  could competently find that the injuries arose out of or in the course of employment. It involved a determination whether the magistrate correctly found as a matter of law that the respondent was entitled to compensation.

The observations of Glass JA in Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, with whom Samuels JA agreed, are in point and mirror the role of the Supreme Court in this matter:
"An	erroneous		conclusion			that		facts			properly determined		fail			to		satisfy			a		statutory		test	eg injury	arising	out	of		the		course		of		employment, substantial interruption to journey, or failure to provide suitable  employment will ordinarily	be an erroneous	conclusion			of	fact.		It	is	only	in marginal cases that the statutory test is satisfied or not satisfied			as a matter	of law,		because	no other			application is  reasonably  open Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."

I do not wish to minimise the difficulty of distinguishing questions of law and questions of fact. The "vexed question" is discussed at length in Hill & Brigham Principles of Workers Compensation 1981 ed at 185-192.

It is unnecessary to dilate upon the subject further for the purposes of this appeal because the Supreme Court, on the hearing of the appeal from the magistrate, did not come to any conclusion different to those found by the magistrate on any of the issues raised by the appeal to that court. On the appeal to this Court from the Supreme Court, the exercise is the review of the Supreme Court's decision as an intermediate court of appeal. The appeal to the Supreme Court was on a question of law. The appeal from

the Supreme Court to this Court ought to be similarly confined. It would be inappropriate, in my opinion, to do otherwise. This Court's function should be more akin to hearing a case stated. our jurisdiction should be confined to whether the Supreme Court was right or wrong. It is difficult to conceive of a situation where the extensive powers of this Court under the above appellate provisions of the supreme Court Act would call to be exercised in an appeal from a decision of the Supreme Court as the intermediate court of appeal.

Martin and Mildren JJ:
The respondent brought proceedings in the Workers Compensation Court against the appellant in which he claimed that he suffered an injury arising out of or in the course of his employment with the appellant. The injuries the respondent suffered were the result of a motor vehicle accident which occurred shortly after 10.00 pm on Monday 28 July 1986. Those proceedings resulted in an award in the respondent's favour. The learned magistrate found that the injuries arose in the course of the respondent's employment, that the injuries were attributable to the respondent's serious and wilful misconduct, but that the respondent's injuries resulted in serious and permanent disablement to him, so that s7(3) of the  Workers  Compensation Act operated so as not to preclude him from recovering any compensation under the Act. The respondent received an award of weekly payments of compensation pursuant to s7 in respect of the period from 28 July 1986 to 2 August 1991 (the date of the Court's decision), lump sum payments for his disabilities pursuant to slO, and orders for the payment of his past and future medical expenses. The court also found that the respondent was partially and permanently incapacitated for work which the court assessed at 60 per cent, and ordered that the respondent's entitlement to future payments of weekly compensation be redeemed by payment of the sum of
$141,367.20.

From this decision, the appellant appealed to the supreme Court constituted by a single justice on a number of grounds, including that the court erred in holding that the respondent was injured in the course of his employment, that the court erred in the assessment of the respondent's entitlements under ss7 and 10 of the Act, and that the court erred in its calculation of the value of the respondent's rights of redemption. An appeal to the Supreme Court lies only on a question of law: s26(1). The Supreme Court dismissed that appeal, holding that the learned magistrate was right in concluding that the injury arose by accident in the course of the respondent's employment. His Honour dismissed the appellant's contention that this was a journey case which failed because there had been a substantial interruption to the journey. His Honour found that this was not a journey case at all, but truly a case where the injury arose out of the course of the respondent's employment. His Honour also upheld the learned magistrate's finding that the respondent was not precluded from claiming compensation because he had suffered serious and permanent disablement. His Honour dismissed the appeal against the quantum of the award on varying grounds; as to the award for weekly compensation up to the date of the hearing his Honour found that there was no evidence that the respondent could earn any income, and that the proviso to paragraph l(b) of the Second Schedule to the Act was to be applied to the amount of $197 per week (the maximum weekly benefit). Consequently his Honour appeared to conclude that there was no basis for disturbing the learned magistrate's finding, although it may be that his Honour was of the view that this aspect of the appeal involved only a question of fact. As to the award under slO and for redemption, his Honour held that the only basis for the appeal was "an attack on the evidence," and clearly his Honour's conclusion was that those aspects of the appeal raised no questions of law.

The appellant now appeals to this Court on much the same grounds as were agitated before the Supreme Court, except

that the ground based upon a challenge to the finding bhat the respondent suffered	serious and permanent	disablement . was expressly abandoned by the appellant's counsel.

The facts as found by the learned magistrate
The respondent commenced his employment with the appellant early in 1986 initially working as a plant operator in Alice Springs. About two weeks prior to the accident, he was sent to work at a construction site at Bynoe Harbour to clear land for a prawn farm and to prepare for the construction of dams for the prawns. There were two other of the appellant's employees employed at the site. The respondent was placed in charge of the site and worked under the direct instructions of a Mr Tiver who was not usually present at the site. Subject to those instructions, the respondent was responsible for the day to day supervision of the work at the site. He was paid a fixed salary and expected to work at such times and for such hours each day (seven days a week) as were necessary to get the job done. There were no fixed hours of work and no overtime was paid. The respondent and the other men were expected to live at the site in a camp provided by the appellant. (The evidence before the magistrate, which was uncontradicted, was that the respondent had purchased a caravan of his own which was on site and in which ultimately he intended to live, but he had not occupied the caravan at the time of his accident). The respondent was responsible for setting up the camp, purchasing materials, and liaising with the appellant's accountant in Darwin to obtain the mens' pay or to purchase parts, food or equipment. He was responsible for ensuring that the appellant's trucks and machines (a D76 dozer, 12B scraper and 613 scraper) were properly maintained. He ordered and arranged for the purchase and supply of fuel for the trucks. He supervised the grader operators. He did not himself usually operate those machines except to teach others how to use them. He did do maintenance work on the machines. He was responsible for the hiring and firing of the other employees at the site. His employment took him to

Darwin frequently to buy parts, oil, fuel, welding gear, food and whatever else was needed to set up the camp and to do the job. The site was only accessible from the Old Finniss River Road which was unsealed and in poor condition.

At about 5.oo pm on Sunday 27 July 1986, the respondent left the site in the appellant's truck and travelled to Darwin in order to purchase fuel, intending to return the following day.

At approximately 8.00 am on Monday 28 July 1986 he purchased the fuel and set out to return to Bynoe Harbour. on the way he met one of the other employees, one Scarborough, who was travelling to Darwin in another of the appellant's vehicles in order to buy parts. The respondent and Scarborough swapped vehicles, and the respondent returned to Darwin. Scarborough was to obtain water and to
meet the respondent at the Noonamah Hotel at 6.00 pm. The respondent completed his purchases at about 3.oo pm and thereafter roamed around various yards and sites looking at
machinery,   before  leaving  Darwin  to  meet  up   with
Scarborough. The respondent arrived at the hotel at about 6.oo pm, and met Scarborough there. They both had a meal and consumed soft drinks and alcohol. The respondent left
the hotel between 9.00 and 10.00 pm and drove along the only road to Bynoe Harbour. He was still driving the appellant's vehicle in which were the parts he had purchased earlier that day. Scarborough had left the hotel about half an hour earlier. Shortly after leaving the hotel, the respondent was involved in a road accident when the near side of the vehicle struck a culvert. He was seriously injured. At the time of the accident he was intoxicated and had a blood alcohol reading of .208. The trip from Darwin to Bynoe Harbour would normally take about two hours by vehicle.

The Submissions
Mr Riley QC, for the appellant, contended that on these facts the Supreme Court should have found that the learned magistrate had erred in law in concluding that the accident arose in the course of the respondent's employment. He submitted that the learned magistrate, and the Supreme Court, failed to consider whether the respondent had, by drinking and eating at the hotel for three to four hours and getting intoxicated in the process, abandoned his employment. On the facts as found, he submitted that the only conclusion open was that the respondent had abandoned his employment and was "in recreation mode," and that, because of his gross misconduct in getting intoxicated, it was not possible to find that the respondent had resumed his employment. Further, Mr Riley QC submitted that the only basis for finding that the journey from Darwin to Bynoe Harbour was in the course of the respondent's employment was by virtue of the journey provisions of the Act (s8(1}} but that because the learned magistrate had found that there had been a substantial interruption to the journey, and that the risk of accident was increased by reason of the interruption (see s8(2}}, the case fell outside of the journey provisions.

Mr Hiley QC, for the respondent, submitted that this was not an "interval" case because the injury did not happen whilst the respondent was at the hotel, that it was not a journey case, that the conclusion that the respondent was injured in the course of his employment was a conclusion of fact, not of law, which could not be disturbed on appeal, and that even if this conclusion was a question of law, the decisions of the courts below were correct.

In our opinion, the question of whether or not, on the facts as found by the learned magistrate or on the undisputed evidence, the respondent suffered injury by accident in the course of his employment, is a question of law: Lancashire  &   Yorkshire  Railway  Co v Highley (1917] AC
352 at 369; Dennis  v  AJ    White  &    Co (1917] AC 479 at 489;

Fenton v Thorley (1903) AC 443 at 453; Harris v Associated Portland Cement Manufacturers Ltd (1939] AC 71 at 92; Hope  v Bathurst City Council (1980) 144 CLR 1 at 7; John Holland
Constructions	Pty  Ltd  v Hall  (1987) 45 NTR 11 at 26; ANZ
Executors	and	Trustees	Pty	Limited	V	Nader	Jones
(unreported, Supreme Court of the NT, 12/8/86, Asche CJ at 18). The question of law involved is whether there was evidence upon which the learned magistrate could competently find that the respondent's injuries arose out of the course of his employment: J & P Hutchison v McKinnon (1916] 1 AC 471 at 475-6 per Lord Atkinson. In some cases, in arriving at such a decision, there may also be an error of law appearing ex facie in the reasons for a court's decision; for example, the wrong legal test may have been applied to the facts. Where there is no ex facie error, the test is whether any person acting judiciously and properly instructed as to the relevant law could arrive at the conclusion under appeal. As Lord Radcliffe observed in Edwards (Inspector of Taxes) v Bairstow (1956] AC 14 at 36:
"In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."

The same point was made by Dixon Jin Humphrey Earl Ltd v Speechley {1951) 84 CLR 126 at 134, in a case involving the question of whether or not an employee's injury in that case arose out of the course of his employment:
"There is a great difference between, on the one hand, the worker's taking advantage of an allowable interval for lunch in order to make it the occasion of an

excursion for his own purposes and on the other h,and his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same , time	provide	for	his	own	reasonable	wants.	Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way. Even in a matter of degree the facts may show so great a departure	from		what		is an allowable	incident	of the employment that it is not open to a court to make any but one finding.tt

As we understand Mr Riley's submissions, it was not suggested that there was any error of law appearing ex  facie from the reasons in either of the courts below;  rather the force of his submission was directed towards showing that the only reasonable conclusion open on the facts as found and on the facts not in dispute was that the respondent was not in the course of his employment at the time of his injuries.

Mr Riley QC based much of his argument upon the recent

decision	of	the	High	Court	in Corporation		Ltd	( 1992) 106 ALR 611, the following passage from the joint Deane, Dawson and McHugh JJ (at 617):

Hatzimanolis    v     ANI and in particular on judgment of Mason CJ,

" ... Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred

in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen': Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537."

The nub of Mr Riley's submission was that, given that the respondent was in the course of his employment up to the time he stopped at the hotel, the only reasonable conclusion open was that he then went into "recreation mode" and abandoned his employment as a consequence of his gross misconduct in his drinking at the hotel until he was intoxicated. If gross misconduct took him outside his employment, so the argument went, there could be no resumption of his employment when he later left the hotel in order to return to the camp.

There are, in our opinion, several answers to this contention. The first is, that the injury did not occur during an interval between episodes of work. The respondent was not merely returning to the camp for his own purposes; his journey was for his employer's purposes, namely, to carry the parts he had purchased to the work place, to return the vehicle to the workplace, and to return himself to the camp site where he was required or reasonably expected to be. As his Honour observed in the Supreme court:
" the respondent's situation  was no different to that of a person whose primary job was to drive, for example, a truck driver or of a person whose employment has as one of its incidents activities taking one away from one's primary place of employment, for example a mechanic who travels to buy spare parts or an office girl who goes to the post office to collect mail. Subject to the question of serious and wilful misconduct and s7(3) of the Act, the respondent was entitled to compensation."

The second answer to the respondent's contention is that we do not consider that the High Court intended, by its references to "gross misconduct taking him or her outside the course of employment," to be laying down a universal proposition of law that whenever gross misconduct occurs

during an interval between episodes of work, the employ:ee must be outside the course of the employment. No doubt that will often be the case, but s7(3) of the Act makes it clear that an employee is not taken outside the course of his employment by his own serious and wilful misconduct if he suffers permanent and serious injury. As Lord MacMillan observed   in  Harris   V	Associated Portland Cement Manufacturers Ltd [1939) AC 71 at 83-4:
"My		Lords,			throughout			the		whole			course			of		the legislation			dealing	with			workmen's	compensation	from 1897 down to the present day the cardinal condition of a	valid	claim	of	compensation		was			been	that		the accident causing personal injury to the workman shall have arisen out of and in the course of his employment. Amending			legislation	has	affected				this		cardinal condition		in a not very  logical fashion	by	providing that, if the accident results in death or serious and permanent				disablement		then,		in		certain cases, notwithstanding that certain facts are proved which might be thought to establish that the accident did not arise out of and in the course of the employment, the employer is to be precluded from so maintaining by reason of these facts alone. If the injury to the workman is proved to have been attributable to his serious and wilful misconduct compensation is not to be disallowed by reason of this fact if the injury results in death or serious and permanent disablement - which is tantamount to saying that although the accident is attributable to the workman's serious and wilful misconduct it may nevertheless be held to arise out of and in the course of his employment. In such a case, although the employer cannot in answer to the claim plead that the accident was due to the serious and wilful misconduct of the workman, he may still plead that for other reasons it did not arise out of and in the course of the employment. Further, but again only if the accident results in death or serious and permanent disablement, the employer is precluded from pleading that the accident did not arise out of and in the course of the employment because at the time of the accident the workman was (a) acting in contravention of a statutory or other regulation applicable to his employment or of orders given by or on behalf of his employer or (b) acting without instructions from his employer, provided in both cases that such act was done by the workman for the purposes of and in connection with his employer's trade or business. Subject to these qualifications and restrictions the plea that the accident did not arise out of and in the course of the employment remains available to the employer."

These observations are clearly applicable to the provisions of subss7(1},(3) and (4) of the Workmen's Compensation Act.

In interval cases, the ultimate question is still whether the injury arose by accident out of or in the course of the employment within the meaning of s7(1). We do  not understand the High Court to be in any way suggesting otherwise, or that subs7(3) and (4) have no application to such a case. We consider that all their Honours intended by their references to gross misconduct was to draw attention to the general rule, rather than the exception. It is the words of the Act which must rule in every case,  and judicial pronouncements are not to be construed in the same way as an Act of Parliament, particularly when it is plain that general guidance is being offered, and the court has not specifically averted to the relevant statutory provisions in question. It was suggested that there is a difference between gross misconduct and serious and wilful misconduct, but we are unable to see any difference between the two concepts. In any event the only relevant finding by the learned magistrate was that the misconduct was serious and wilful; not that it was also "gross." If there is a difference between the two concepts, there is simply no finding that the misconduct was gross. But, as we have already said, we do not consider that there is any difference between the two ideas. Accordingly we do not accept the proposition that an employee is precluded by his misconduct from resuming his employment.

In our opinion it has not been shown that the decision of the learned magistrate or of the Supreme Court was in error in holding that the respondent's injury arose in the course of his employment. It follows that the appellant's submission that this was, in truth, a journey case which fell outside the provisions of s8 because of the provisions of s8(2) must fail. In our opinion this was not a journey case at all. The respondent was not travelling "to his employment"; the facts support the conclusion that the journey was the employment, or at least something that was part of or incidental to his duties as a whole, at the relevant time. In those circumstances the conclusion that

the injury arose in the course of his employment cannot.be interfered with.

QUANTUM
The Claim
The amount of an employer's liability to a worker under the Act is fixed by reference to the Act. Relevantly to this matter, where the worker is totally or partially incapacitated for work by the injury there  is payable to the worker weekly payments for a term of weeks calculated  in accordance with formulae set out in Schedule 2 (s7(1)). Where the worker sustains an injury which causes loss or partial and permanent loss of the efficient  use of a part of the body specified in the Third Schedule in and for the purposes of his employment at the date of the injury, there is payable an amount of compensation also to be calculated in accordance with the provisions of the Act, namely slO  and that schedule. Schedule  2 cl(12}  provides that where in the case of total and permanent incapacity  or partial and permanent incapacity, a worker is receiving or entitled to receive a weekly payment, that person may apply  to redeem the liability for that weekly payment by the payment of a lump sum. There is no formula relating to the calculation of that lump sum. There was evidence before the Workers' Compensation Court directed to the respondent's claim for weekly payments under s7 and for additional compensation under slO. Application was also made to redeem the liability for weekly payments.

The Evidence

The respondent's evidence before the Workers' Compensation Court was that immediately after the accident he suffered pain in his left arm, hip and left leg. His major injuries comprised two fractures of the left forearm and damage to the bones in the left hip joint which caused consequential pain to the left knee and right hip. According to him, it took about three months to get on his feet with gradual increase in weight bearing, particularly on his left leg.

In March 1988, he underwent further surgery for the removal of pins inserted as part of the treatment of the damaged bones. In mid 1988, he came under the supervision of the Commonwealth Rehabilitation Service which continued for about 12 months. He undertook a work assessment programme and obtained work experience for a period of three months with a motor vehicle auctioneer's firm from mid 1989. He was not paid by the firm, but received continuing social security benefits. His evidence was that thereafter he tried to obtain employment with motor vehicle auction firms, as a plant operator and a truck driver, and in other fields, but was unsuccessful. He had continued to suffer from pain arising from the injuries. At the time of the hearing before the Workers' Compensation Court he complained that his left arm lacked strength and was painful if it was struck, and that he had difficulty walking and sitting for any length of time because of pain and discomfort in his left hip, left leg and knee. His left leg had shortened compared with his right, and there was muscle wasting of it.

During the course of his evidence, the respondent told of his varied pre-accident work experience including as a storeman, a spare parts salesman and the variety of tasks which comprised his work for the appellant. Cross-examined, he agreed that Mr Baddley, an orthopaedic surgeon, had advised him that he could return to work as a truck driver provided there was no part of his duties involving loading or unloading and that he accepted what the doctor had told him, although he had not gone out and applied for such a job. He had also received advice from a Doctor Hay in 1989 that he should be able to return to work. As to the job with the car auctioneers, he described the nature of the duties as clerical, estimation of values of motor cars, driving vehicles and arranging them on the auction room floor. He said he was happy in the job and able to cope in it, but when the three month's work experience period expired he was unable to obtain employment in that field being told there were no vacancies. He applied for other

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positions as a car salesman and for lubricating work,'but, always with  the same result.		He agreed that he could do any job that avoided lengthy sitting, standing or walking, provided,	of	course,	it	was	within	his	mental	capacity.
Although he had from time to time undertaken work which might be broadly termed as clerical duties, the employment service had recommended that he undertake an educational course which might  benefit  him for that type of work.  He had looked at newspaper job advertisements but had not applied for any during a period of 12 months prior to the hearing. He had thought of taxi driving, but considered that continuous sitting would prove a problem. He  considered that part of his difficulty in obtaining jobs related to prospective employers' reluctance to employ him: "they want a hundred percent these days".

Mr Griffiths, a specialist in orthopaedics and, amongst his many qualifications, a Fellow of the Australian College of Rehabilitation Medicine, gave evidence for the respondent. A number of objections were raised to the  doctor's answering questions relating to his opinion of the extent of the respondent's disabilities in relation to work. The questions were allowed, and those rulings were not a ground of appeal to the Supreme Court. Mr Griffiths told of his having treated patients who had followed the occupation of a labourer, a plant operator and a worker on construction projects. He understood that the respondent was a plant operator involved in a lot of driving of machinery and had experience in other forms of work in outback areas, but had very little by way of qualifications or experience in any form of sedentary occupation. He was asked as to his assessment of the percentage disability of the respondent's left arm for the purposes of his employment as a plant operator. Disclosing his reasoning towards the result with reference to the nature of the injuries and their then condition, he said: "I believe he would have a maximum of, say, 10 per cent of loss of efficiency of the left upper limb as a result of fractures of both forearm bones although they have now healed into position." Dealing with

the respondent's left leg for the purposes of his being employed as a plant operator, the doctor opined that the  leg was one hundred percent disabled. As to the percentage disability caused by the referred pain in his right hip and groin for the purposes of his employment as a plant operator, he did not believe it would be great: "No more than perhaps 5 per cent."

It was Mr Griffiths' opinion that the respondent should undergo a procedure involving replacement of part of the damaged left hip. It would be aimed at alleviating the pain which was preventing him from using his left leg normally. If the respondent consented and cooperated there was no reason why it should not be carried out without  delay. Given the respondent's age, and the state of knowledge at the time the doctor gave his evidence, he thought the replacement would need renewal every 7 years or so. If the procedure was undertaken the respondent would have surprisingly little in the way of pain and would have very good movement range, but he would nevertheless have a potential disability given that the hip would eventually give further trouble especially should it get vigorous usage. Mr Griffiths did not believe that at the time of the hearing the respondent was employable in anything that required any standing or prolonged sitting. He would find driving difficult, he had little agility and could not run nor climb ladders or stairs frequently. Given occupational training he may be employable in a sedentary capacity. He did not think that the respondent was then capable of being a taxi driver, though perhaps he could do so after the proposed surgery. Even after that operation, he thought it would be unadvisable for the respondent to take employment as a storeman if he was to be on his feet for long periods load bearing. In summary, the doctor's opinion was that the respondent was not fit for any form of occupation at the time he gave his evidence, but after the hip replacement he could do work in a very modified capacity of a sedentary nature. He would still have to avoid any activities that would place any stress on the hip replacement. The hip

replacement	would		also have a		beneficial	effect	upon the difficulties		in	the	right	leg.	In	cross-examination, . Mr Griffiths said that, speaking generally, any occupation involving long periods of standing, load bearing on the hip and repetitive bending and lifting effort were ill advised, even after the operation. He thought that a job as a clerk would be ideal for the respondent, although he might find difficulty in sitting because of the pain in the hip.

With some reservations as to the amount of standing that might be involved, the doctor was sure that the respondent could sell motor vehicles. It could take three months or more after the proposed operation before he could take up a suitable type of occupation and could continue until such time as the replacement failed or caused problems requiring revision. He confirmed, from a medical point of view, that it was better that the respondent undertake the procedure sooner rather than later otherwise his condition might deteriorate further. The doctor agreed in cross-examination that he had not obtained details from the respondent as to the daily functions of the work upon which he was employed at the time of the accident. When it was put to him that what he had done was to assess the respondent's physical disablement unrelated to his employment he replied: "Unless his employment is totally sedentary, office type, perhaps even a member of the medical or legal profession, I think the hip would cause him considerable distress in any other form of occupation." In re-examination the doctor confirmed that with reference to the respondent's capacity  for work, a job in a car auction yard involving clerical duties and moving motor vehicles around within a limited area would be a suitable occupation, but that he would  do that type of job far better if he had a new hip.

Mr Smith was employed as a senior employment officer in the Commonwealth Employment Service with particular reference to disadvantaged job seekers, including persons physically disabled by industrial and motor vehicle accidents. He dealt with disabled job seekers as well as potential

employers of disabled people. The respondent was registered with the service during 1988 and until March 1990. Mr Smith confirmed that the respondent had been referred to the Commonwealth Rehabilitation Service and he had a report in relation to the respondent received from that service as well as the respondent's personal details as to work experience, education, qualifications and so on including, of course, the disabilities which he suffered as a result of the accident. With that information he expressed the view that the respondent's prospects of obtaining employment as a labourer or plant operator would be minimal. As to sedentary employment, he said that the demands of employers require skills from past experience and that there is a great reluctance to re-train people. In addition, disabilities of a prospective employee are viewed adversely. Prospective employers are concerned about performance and whether the disabled person is likely to be absent on sick leave. Furthermore, prospective employers have a further reluctance to employ people who have been involved in workers compensation claims. All those things are barriers to re-employment of a disabled person. Looking at the respondent's prospects of obtaining employment generally, with his knowledge of his background, experience, skills, and disability, Mr Smith said that in his assessment he would have very minimal employment prospects. In cross-examination he agreed that the respondent had successfully undergone his work trial with the motor vehicle auctioneer, and the reason he did not obtain work after that was that there was no work available.

As the respondent's contact with the service had ceased in March 1990, the evidence being given in the proceedings in April 1991, Mr Smith conceded that his opinion as to the respondent's employability was based upon his speculating as to what he considered to be the case in March 1990. He appeared to agree that the tight labour market was a factor in the respondent's difficulties in obtaining employment, but added that his experiences with disabled people over a

period of years showed that they have difficulties in obtaining employment regardless of that factor. He said that the minimum wage payable in Western Australia was around $230 - $240 per week and the average unskilled or semi skilled wage was around $300 $330 per week. He accepted that if the respondent had obtained employment following the work experience with the car auction yard he would have been paid in excess of $200 per week. Mr Smith agreed that the respondent could do work as a storeman, a base grade clerk at a motor vehicle registry and as a person selling maps in a lands department. He agreed that the respondent could physically do those jobs, but with his knowledge of the labour market it would be extremely difficult to obtain such a position. He regarded physical disability as the major factor affecting a person's prospects of obtaining work, in comparison with the other factors which had been mentioned.

In the appellant's case before the learned magistrate, Mr Strippling, the assistant personnel manager of the Department of Transport and Works in the Northern Territory, said that there was no minimum educational requirement for employment of a person as a base grade clerk and that the weekly wage for such a position was $347 per week. He described a job as a base grade clerk in the motor vehicle registry, by way of example, as involving a wide range of duties such as being able to drive a motor vehicle, walk from place to place within an office, open and close filing cabinets, filing documents, answering telephone enquiries and using computer systems. Walking may involve going up and down stairs. Although vacancies became avai from time to time, he spoke of the then current policy of filling positions from within the Public Service. However, the Department was an equal opportunity employer.

In cross-examination, he said that although there was no minimum educational requirement, educational qualifications of an applicant for a job is one of the criteria to be considered. An applicant's physical health was another.

The appellant also called evidence from a Mr Major, a person with appropriate qualifications in the motor vehicle sales industry. He spoke of the general attributes which would be desirable in a person engaged to sell motor cars. There were no particular physical activities of any significance required of such a person, although they might be required to drive cars around the yard once a week. There were not many vacancies in new car dealerships with people on a waiting list to obtain the opportunity to work there, although vacancies occur in the used car sales business fairly regularly. Car salesmen are paid an award of $363 a week plus a commission.

A person who had a bad hip causing an unusual walking style would not be disadvantaged in such a job because of that factor. Good personal presentation and confident representation of the manufacturer's product were more important than anything else. He agreed that in the new car sales area there was competition for available positions, but that there were always opportunities in the used car sales field although still competitive.

The appellant called no evidence going to the respondent's physical incapacity for work nor as to the loss of the efficient use of a part of his body in and for the purposes of his employment at the time of the injury. There was evidence that the respondent was being paid $400 per week by the appellant at the time of the accident.

Workers' Compensation Court - Reasons and Findings
The learned magistrate, in her reasons, set out the evidence given in the case in far greater detail than appears above and it is not suggested that she erred in any respect in that regard. When considering the question of whether the respondent had suffered serious and permanent disablement, her Worship expressly said that she accepted the evidence given by the respondent and Mr Griffiths as to the injuries suffered in the accident. Further, she accepted the evidence of Mr Griffiths: "That as regards

Mr Clair's left leg he is 100 per cent disabled for any labouring work or plant operating or sitting or driving for long distances." She was thus satisfied that the respondent had a serious and permanent disability, relevant to the liability issue, but there is no reason why her findings in that regard could not also be applicable to issues relating to quantum.

The learned magistrate then turned to the question of "lump sum disability." It is plain that she was then alluding to the claim pursuant to sl0, although she did not always employ all of the words comprising the statutory basis of entitlement. She accepted Mr Griffiths' evidence that Mr Clair had a ten percent disability of his left forearm in and for the purpose of his employment at the date of the injury. As to the disability in the left leg, and noting that the respondent's work involved long periods of driving, teaching the operation of plant and equipment and fixing and maintaining it, she said she accepted the evidence of the doctor, supported by the evidence of the respondent that "his left leg is 100 per cent disabled in and for the purpose of his employment." She then moved on to say that she accepted the evidence of the doctor that the respondent had a five percent disability of his right leg in and for the purpose of his employment. Concluding the question of physical disability, the learned magistrate said: "Any future hip replacement will relieve pain but will not, on the evidence before me, affect the efficient use of his left forearm, his left leg or his right leg in and for the purpose of his employment at the time of the injury. I accept that he cannot return to that form of employment."

On the question that	she		was permanently		and capacity	to		do

of redemption, the learned magistrate said not	satisfied	that		the	respondent			was totally	disabled,	but he would	have	the a	range		of	jobs,		including	work	that

involved limited clerical skills, work in a car sales yard, counter clerk in a government department, a taxi driver and

a range of employment that does not involve heavy labouring work, prolonged standing, sitting, bending or lifting. She found that he had a partial and permanent incapacity which she assessed at sixty percent.

Nowhere in an otherwise detailed review of the evidence or in her findings does her Worship expressly address the question of the employer's liability to make weekly payments under s7. Nevertheless, an award was made by her for weekly payments for the first 26 weeks after the date of the accident at the rate of $400 per week and thereafter to 2 August 1991, date of delivery of judgment, at the rate of $197 per week, the statutory maximum, if the respondent had been totally incapacitated for work by the injuries to the date of judgment. Awards were also made reflecting the employer's liability under the heading of "Lump Sum Disability" relating to left forearm, left leg and right leg. Her Worship made an order that the respondent was entitled to redemption of the future liability for weekly payments based upon her finding that he was sixty percent permanently and partially disabled leaving the quantum to be the subject of later submission.

Appeal to the Supreme Court
The relevant grounds of appeal to the Supreme Court were: "4. The Court erred in
failing to have regard to the evidence that the respondent could earn more than $197 doing the work which the Court held he could do;

failing to have regard to the evidence that there was work for which he was able and in which he would have earned more than $197 per week but which was not available to him only because of the state of the economy.
The Court erred

in holding that the respondent had a 100 cent	loss	of	his		left	leg		in		and	for purposes of his employment at the date of injury,	in		that	it	failed	to	consider evidence in particular of the true nature incidents of his employment at that date;

per the the the and

in finding that a future hip replacement wo ld not affect the efficient use of his left leg in and for the purpose of his employment at the time of the injury, in that it failed to have regard to the evidence, in particular that the hip replacement would restore substantial, if not total, use of his left leg.
The Court erred
in holding that the respondent had a 5 per cent loss of his right leg in and for the purposes of his employment at the date of the injury, in that it failed to consider the evidence in particular of the true nature and incidents of his employment at that date;

in finding that a future hip replacement would not affect the efficient use of his right leg in and for the purpose of his employment at the time of the injury, in that it failed to have regard to the evidence, in particular that the hip replacement to the left leg would restore substantial, if not total, use of his right leg.

In awarding lump sum compensation under slO of the Act, the Court erred in failing to have regard to the evidence that the respondent's injuries were not permanent and were partial only.

The Court erred in
failing to have regard to the evidence of the wages for the employment for which the Court found the respondent was fit, and thereby miscalculated the redeemed value of future weekly compensation;

finding	that incapacitated

the	respondent	was	permanently and		therefore		entitled	to

redemption	of compensation;

future	weekly	payments	of

finding that the respondent's incapacity was 60 per cent;

failing to apply or properly apply the formula for calculation of redemption of weekly payments of compensation set down in Watkins v Renata (1984) 29 NTR 38."

His Honour held that the learned magistrate did not find that	the	respondent	was	fit	or	able	to	perform	any

particular job, although she held that he could do work not involving heavy labour, prolonged standing, sitting, bending or lifting. She did not find that he was "able to earn" for the purposes of paragraph l(b) (sic) of the 2nd schedule of the Act. There was no evidence that the respondent could earn any income. It followed, his Honour said, that if the respondent was only partially (as distinct from totally) incapacitated, the "lesser" amount for the purposes of the 2nd schedule paragraph 1 (b) (sic) is $197, and it is to this amount that the proviso is to be applied, see Watkins v Renata (1984) 29 NTR 38. (His Honour was probably referring to paragraph lB) • He dismissed the appeal against the orders for weekly compensation. As to the orders for redemption and the lump sum payment, pursuant to slO of the Act, his Honour thought it sufficient to say that the only attack against those orders was an attack on the evidence and that the learned magistrate's order should be affirmed.

Appeal to the Court of Appeal
The grounds of appeal to this Court from his Honour's decision relevantly simply restate the grounds of appeal to the Supreme Court. No effort was made to state grounds of appeal from his Honour. No objection was made by the respondent to the matter proceeding on hearing before this Court on the basis that it was reviewing the case before the Workers' Compensation Court on the reasons thereon rather than the appeal before the Supreme Court and his Honour's reasons.

An appeal to the Supreme Court is restricted to a question of law (s26 (1)) and an appeal from that Court to this obviously can not be on any other question, particularly, one involving a question of fact. No more than did his Honour, this Court has no jurisdiction to control findings of fact of the Workers' Compensation Court. As can be seen by reference to paragraphs 4 - 7 and 9 of the grounds of appeal to the Supreme Court, which are repeated in the grounds of appeal to this Court, all but one, on their

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face, are attacks upon findings of fact. It is said t:hat there was error in "failing to have regard to the evidence or, "it failed to consider the evidence" or, "finding certain things as matters of fact. An exception is the ground which alleges that the Supreme Court failed to apply or properly apply the formula for calculation of redemption of weekly payments of compensation set down in Watkins v  Renata (1984) 29 NTR 38. That ground only arises if it can be demonstrated that her Worship made an error of law in arriving at her conclusion that the respondent was incapable of earning income in some suitable employment or business up to the date of hearing. There is no such express finding, but there is no ground of appeal that her Worship failed to give reasons for her decision to make awards for the payment of weekly compensation.

The argument on the hearing of this appeal was that her Worship had made findings that the respondent was able to earn income in some suitable employment or business, but a reading of her reasons does not support that argument. Her Worship, when considering the claim for redemption, which could only arise if there was a liability to make weekly payments, expressed herself not satisfied that he was permanently and totally disabled. She spoke of the operation for the replacement hip and then continued: "he will not be able to return to any form of work that requires prolonged sitting .... work as a labourer or plant operator would not be within his capabilities .... there is evidence that he would have the capacity to do a range of jobs including work that involves limited clerical skills work in a car sales yard ....". She concluded that he had a partial and permanent incapacity which she went on to assess at 60 per cent. It is clear upon a reading of what was there said, in its context, that she was referring to redemption for liability for future weekly payments. It is implicit from the consideration given to the question of redemption and the awards which were made that her Worship

was	satisfied	as	to	the	appellant's	liability	to	make weekly payments.

There is no evidence as to the amount, if any, per week which the respondent was capable of earning in  some suitable employment or business prior to the hearing, and the evidence of the doctor could easily have been rejected by her Worship if it was suggested it tended to establish any such capacity. But that is not a matter upon which this Court should venture. It lies outside its jurisdiction on this appeal.

There was evidence which her Worship could accept from the doctor as to the loss of the efficient use of a part of the respondent's body in and for the purposes of his employment at	the		date		of		the	injury.		It		was	argued	that	the magistrate should have ascertained the nature of the injury which caused the permanent loss of efficiency of the part of the body, and then consider it against the background of the actual employment duties, not just a general type of employment (per Muirhead	J			in Gunn			Developments		(NT)	Pty Ltd		v	Edwards,			unreported,		12 April 1977). Those comments by his Honour were made in the context of an appeal against the determination	on a question		of			law or fact or both, which was available at that time. The grounds of appeal are now limited to questions of law. Her Worship was well aware from the evidence of the respondent as to his duties in his employment by the appellant at the time of the injury. She also had the benefit of the opinion of Mr Griffiths. In her reasons		she	paid			regard		to	the	evidence	of	both	and expressly accepted the evidence of the doctor. The evidence of Mr Griffiths was given over objection, but there is no appeal		against the rulings admitting it. Her Worship was the ultimate finder of fact and she could accept or reject the opinion of the doctor as she thought fit. It need not have been treated in isolation and apparently was not, due regard also being had to the evidence of the respondent.

It	was	not	argued		that	there	was	no	evidence	of, a , particular	fact	as	found.	If	such	an		argument	had		been, raised then a question of law would have arisen (McPhee v S Bennett Limited (1934) 52 WN (NSW} 8 per Jordan CJ at 9).
His Honour continued:
" if there is evidence  of  the  fact,  the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence because it is all one way. It can accept all, or some, or none of it."

This and other authorities are extensively reviewed by the Court of Appeal in Azzopardi v Tasman UEB Industries  Ltd  ( 1985) 4 NSWLR 139 where Glass JA, with whom Samuel JA agreed, said:
"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence in the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways."

His Honour went on to say that that did not amount to an error of law. Kirby P, in the minority on the point, would treat perversity and completely unreasonable decisions as amounting to errors of law, but does not appear to dissent from the majority in respect of the other descriptions of matters which amount only to error of fact (see Haines v Leves (1987) 8 NSWLR 442 at 469; Soulemezis v Dudley
(Holdings) (1987} 10 NSWLR 247 at 252). As to perversity  and unreasonable decisions see the observations of Dixon J in Darling Island Stevedoring v Jacobsen (1945) 70 CLR 635 at 643.

The final issue goes to her Worship's award for redemption of future liability for weekly payments. She had proceeded to make awards for such payments up to the date of judgment on the basis that the respondent had been incapacitated for work by the injuries and unable to earn any amount in some suitable employment or business. The respondent applied for redemption		and		there		is no statutory		guidance		as to the principles			upon		which,	or	any	formula,	by		which		such redemption,  if awarded,  is to be calculated.	A summary of the evidence		and of her Worship's findings have been set out	above.			Although	unexpressed,		her			Worship			must		have considered that the benefits of the hip replacement would persuade the respondent to undergo the procedure sooner or later and thus his capacity to earn be improved. As to the evidence and findings			of  fact thereon, they	were matters entirely	for		her		worship.	However,	the	exercise	of	a judicial discretion must be" ... according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be  not arbitrary, vague and fanciful,  but legal and regular. And it must be exercised within the limit to which an honest  man competent to the discharge of his office ought to confine himself" (per Lord Halsbury L.C. in Sharp  V  Wakefield (1891) AC 173 at  199) •  Her  Worship  does  not explain how she arrived at the decision that for the purposes of redemption the respondent had a partial and permanent incapacity which she assessed at sixty percent. since the redemption is only available in respect of the employer's liability to make weekly payments where the worker is incapacitated for work by the injury, the assessment, on its face, relates only to the degree of that physical incapacity. It does not address the question  of the employer's liability to make weekly payments. It fails to consider for example, when it was likely the respondent would return to work, the nature of the work, the amount which he would be likely to earn, what interruptions there may be to his work and the effect that may have upon his earnings, flowing from the need to have periodic hip replacement operations. It may be that her Worship had in

mind some or all of those matters or others, physical	incapacity,	but that is not clear.
$141,367.20,	although	calculated	by

including 'his The award of,, the	legal

representatives of the parties, was arrived at on the basis of	her			Worship's	assessment.		It does not appear	how her Worship reached her assessment, but, upon all the facts as found the result appears unreasonable, and this Court may infer that in some way there has been a failure properly to exercise the discretion			(House		v		R (1936) 55 CLR 499 at 505).	"The	ascertainment		of			the		lump	sum		demands serious			consideration	of	many		variable			factors		and		it should		not be assessed		by the exercise		of	a kindly	and generous			discretion	at		the	expense	of the employer or insurer" (per Starke J  in Michaelis  Hallenstein  v  Lewis (1944) 68 CLR 613 at 627). The apparent failure to properly exercise a judicial discretion is an error of law. His Honour ought not to have dismissed the appeal upon that ground.

Orders
We would allow the appeal in respect of his Honour's decision to dismiss the appeal against the award of a sum in redemption of the employer's liability for weekly payment and remit that matter to his Honour for further hearing and determination.

We would dismiss all other grounds of appeal and order the appellant to pay 90 per cent of the respondent's costs of and incidental to the appeal to this Court and to his Honour.

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