Murray River North Pty Ltd v Midgley - [2006] WASCA 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MURRAY RIVER NORTH PTY LTD -v- MIDGLEY [2006] WASCA 104

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 20 MARCH 2006

DELIVERED : 12 JUNE 2006

FILE NO/S: CACV 57 of 2005

BETWEEN: MURRAY RIVER NORTH PTY LTD
Appellant
AND
SHANE MIDGLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER STAVRIANOU
Citation  :MIDGLEY -v- MURRAY RIVER NORTH PTY LTD [2005] WADC 83
File No  :CIV 2502 of 2001

Catchwords:

Workers' compensation - Constraints on award of common law damages - Award of damages in cases where degree of disability less than 30 per cent - whether Court erred in its assessment of severity of disability to wrist

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D, s 93E, s 93F

Workers' Compensation Act 1987 (NSW), s 67(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J G Staude
Respondent: Mr M E Herron

Solicitors:

Appellant: Mullins Handcock
Respondent: Gibson & Gibson

Case(s) referred to in judgment(s):

Dell v Dalton (1991) 23 NSWLR 528
Ellis v Rantzos [2005] NSWCA 266
Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376
Girrawheen Tavern v Joseph [2003] WASCA 244
Guest v NRMA Insurance Ltd [2002] WADC 115
Hendrie v Rusli (2000) 32 MVR 240
Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253
Lockyer v Marshall (2004) 37 SR (WA) 90
Marshall v Lockyer [2006] WASCA 58
Midgley v Murray River North Pty Ltd (2005) 39 SR (WA) 104
Offset Alpine Printing Pty Ltd v Porteous (1992) 8 NSWCCR 489
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo'Arriaza (1997) 25 MVR 539

Case(s) also cited:

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Gamser v The Nominal Defendant (1977) 136 CLR 145
Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jacka v Horsten (1980) 88 LSJS 419
Marsland v Andjelic (1993) 31 NSWLR 162
Miller v Jennings (1954) 92 CLR 190
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Wilson v Peisley (1975) 50 ALJR 207

STEYTLER P: I have had the advantage of reading the judgment of Pullin JA. There is consequently no need for me to restate, in any detail, the facts and circumstances giving rise to this appeal.
The respondent, a 27‑year‑old man, injured his left wrist. As Pullin JA has said, the injury disabled him for many months, required numerous operations to deal with the injury, including the placement and removal of a plate and screws, and left him with a permanent disability and the prospect of further treatment. A Commissioner of the District Court assessed the respondent's damages at $322,112.73, including an amount of $210,000 in respect of loss of earning capacity. However, no agreement or determination that the degree of disability of the worker was not less than 30 per cent had been recorded for the purposes of s 93E of the Workers' Compensation and Rehabilitation Act 1981 (WA). Consequently s 93F(1) of that Act applied. That section read as follows:
"(1) Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E —
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
"Amount A" was $293,990 at the material time. The Commissioner concluded that the respondent's disability fell within the category of "a most extreme case of a disability of less than 30 per cent in degree" and awarded him the sum of $293,990. The appellant challenges the finding that the respondent's disability fell within that category and, consequently, contends that the award was too great.
After argument in the appeal had been heard, the Court of Appeal delivered its judgment in Marshall v Lockyer [2006] WASCA 58. That case dealt, amongst other things, with s 93F(1). The parties were consequently invited to lodge additional written submissions in respect of it. Those submissions have since been received.
In Marshall, the respondent (plaintiff) had suffered a disability falling within s 93F(1) of the Act. The trial Judge, who assessed the respondent's damages at $382,916.70 (including an amount of $290,000 in respect of past loss of income and future loss of earning capacity), was satisfied that the severity of the disability put the respondent in a most extreme case of a disability of less than 30 per cent, having regard to his overall economic and non‑economic loss, and awarded the maximum allowed. He said, in that respect, that s 93F(1) was suggestive of the need for a discretionary assessment, rather than some mathematical calculation by reference to the degree of disability. The appellant challenged the finding that the respondent's disability was a most extreme case of a disability of less than 30 per cent in degree. Each of the Judges who heard the appeal delivered a separate judgment in this respect.
Roberts-Smith JA referred to a number of cases dealing with similar statutory provisions. These included Wylde v Aristondo'Arriaza (1997) 25 MVR 539; Southgate v Waterford (1990) 21 NSWLR 427; Dell v Dalton (1991) 23 NSWLR 528 (each of which has been considered in the judgment of Pullin JA) and Hendrie v Rusli (2000) 32 MVR 240. He went on to say (at [238] ‑ [240]):
"I cannot accept the submission that s 93F(1) requires the determination of a simple proportionate relationship between a degree of disability assessed in accordance with s 93D(2) and the prescribed maximum amount, taken as 100 per cent.
The term 'degree of disability' is defined in s 93F(1) of the Act as meaning the degree of disability of the worker assessed in accordance with s 93D(2). The term is used throughout Div 2 of Pt IV as having that meaning. It is used in the preparatory words of s 93F(1) itself. Subsection 93F(1)(a) stipulates the amount of the damages to be awarded is to be a proportion of the maximum, determined according to 'the severity of the disability'. The different terminology must be taken to be deliberate and is significant, particularly given the damages are not confined to non-economic loss. Having regard to the definition of 'disability' in s 5 of the Act, s 93F(1)(a) is speaking of all damages attributable to the severity of the personal injury, disease or disabling loss of function suffered by the worker. As Viol DCJ opined in Guest [v NRMA Insurance Ltd [2002] WADC 115], that suggests a discretionary rather than a mathematical calculation is necessary.
In my view, notwithstanding the different wording of the relevant provisions, I consider the approach taken in Wylde and Hendrie is also that which is contemplated by s 93F(1)."
McLure JA, having agreed with Roberts-Smith JA (at [326]) that the section did not require a mathematical approach by reference to the agreed or determined percentage degree of disability (she said that the respondent had not contended that it did), went on to say (at [327]):
"The appellant contends that s 93F(1)(a) requires a court to compare the severity of the subject disability with a most extreme case of a disability of a degree less than 30 per cent which is likely to cause substantially greater economic and non economic loss. The Court is not required to contemplate the worst kind of injury of the type suffered by the respondent. There can be a range or class within which a disability of a particular kind may qualify as a most extreme case of a disability of less than 30 per cent in degree. Further, the quantum of economic loss is a relevant but not determinative factor in assessing the relative severity of an injury. Injuries received in older age may have a disproportionate impact."
Murray AJA agreed with Roberts-Smith JA (at [390]). However, after having considered s 93F(1) in its context, he went to say (at [395] ‑ [397]):
"The difficulty which arises in the proper interpretation of the section is readily apparent. But in my opinion it does not prescribe an approach which simply requires the court to make a mathematical determination or assessment of the nature of the injuries suffered compared to the most serious form of injury, of whatever kind, which will not merit the determination of a degree of disability by the statutory processes of not less than 30 per cent. That is simply not what the subsection says is to be done. What it requires is the assessment of damages in the ordinary way. The provision makes no alteration to that process as an exercise of the court's judgment pursuant to the common law. That must, I think, be what is meant by a determination 'according to the severity of the injury' because I cannot think that what the section requires is for the court to make two assessments.
It cannot be that the court would be required to assess damages in relation to the case before it according to the ordinary processes of the common law. It cannot then be the case that the court is required to imagine some form of most extreme case of a disability of less than 30 per cent in degree and make an assessment of damages that would be applicable to such an hypothetical case. The section cannot require the proportion of the damages assessed in the instant case to be measured against that second assessment and then apply that proportion to Amount A so as to get the damages which may be actually awarded. That would be a nonsense and the policy considerations which would dictate that process are impossible to discern within the context of this legislation.
In my view, damages having been assessed in the ordinary way, according to what is described as the severity of the injury, they are to be measured against Amount A. If the damages as so assessed equal or exceed that amount, then Amount A may be the award of damages to be made because the process undertaken will establish that the case before the court is a most extreme case of a disability of less than 30 per cent in degree. Read in that way, the section truly caps the court's capacity to award damages at common law, and that does accord with the discernible policy considerations underpinning the legislation, which are twofold – to prevent recourse to the common law in cases of minor injury, and otherwise where recourse to the common law is permitted, to limit the quantum of damages which may be awarded, except in cases of really serious injury determined in accordance with the statutory process."
It will be apparent that there is a difference in approach as between Murray AJA, on the one hand, and McLure JA (and possibly also Roberts‑Smith JA) on the other. The approach preferred by Murray AJA would require that, in every case in which damages had been assessed, in the ordinary way, as being equal to or greater than Amount A, the court would be required to award Amount A because the disability would be "a most extreme case of a disability of less than 30 per cent in degree". The approach preferred by McLure JA, as I understand her, envisages a wider discretion requiring only that the disability in question be compared with a range or class of disabilities of a kind that might qualify as a most extreme case of a disability of less than 30 per cent in degree in order to consider whether the maximum amount, or some lesser amount, should be awarded. Her Honour would see the quantum of economic loss as a relevant but not determinative factor in assessing the relative severity of an injury.
In my respectful opinion the approach preferred by McLure JA (which is consistent with that taken by Roberts-Smith JA) is that which should be adopted. In my opinion there may be a case in which, for some reason or another, the quantum of economic loss would take the damages, assessed in the ordinary way, over Amount A but in which, even then, the disability is not appropriately described as having been so severe as to amount to a most extreme case of a disability of less than 30 per cent in degree. Moreover, it seems to me that, if the legislature had had the intention ascribed to it by Murray AJA, it would have provided, in s 93F(1), that in a case of the kind referred to in the opening words of that section, the damages to be awarded should be those that would have been awarded at common law, subject to the maximum provided for by Amount A. Instead, it seems to me, the legislature has deliberately chosen a different formula, being one which requires that damages be awarded in accordance with the severity of the disability, subject to the maximum provided for in a most extreme case of a disability of less than 30 per cent in degree. I agree, in this last respect, with what was said by Handley JA in Dell v Dalton at 532 ‑ 533, to the effect that the use of the indefinite article provides for the creation of a class of "most extreme" cases which necessarily means that the cases may be different, and that some may be worse than others.
That brings me back to this case. No material error of law or fact has been identified and the appellant is consequently required to demonstrate that the Commissioner's finding was incapable of falling within a most extreme case of a disability not less than 30 per cent. As Pullin JA has said, the injury to the respondent's wrist was severe. It is very probable that further surgery will be required. The injury was productive of consistent pain. It restricted the respondent's ability to engage in heavy physical work, in circumstances in which his education, and hence his ability to obtain other kinds of work, has been limited. His sporting activities have also been restricted. He has suffered a very significant loss of income. His past and future medical treatment costs exceed $34,000. In all of these circumstances, I am not satisfied that the appellant has established that the respondent's injuries could not reasonably have been found to fall within the class of a most extreme case of a disability not less than 30 per cent.
I would dismiss the appeal.

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
PULLIN JA: This is an appeal against a judgment of Commissioner Stavrianou in the District Court. The case involved a claim by a worker for damages for personal injuries caused by the negligence of the appellant, who was the respondent's employer.
In the accident the respondent injured his left wrist. He was 27 years of age at the time of the accident. The injuries the respondent received, the treatment he was given and his residual disabilities are all set out in the learned Commissioner's reasons for decision in Midgley v Murray River North Pty Ltd (2005) 39 SR (WA) 104. The injury disabled the respondent for many months. Numerous operations were required to deal with the injury, including the placement and removal of a plate and screws. The respondent has been left with a permanent disability and he faces the prospect of further treatment.
The Commissioner assessed damages as though there were no constraints imposed upon him and arrived at a figure of $322,112.37, calculated as follows:
"Loss of amenities  $ 60,000.00
Past Loss of Earning Capacity  $ 90,000.00
Future Loss of Earning Capacity  $120,000.00
Fox v Wood  $ 16,405.68
Past Medical Treatment  $ 13,673.00
Past Rehabilitation  $ 14,533.69
Future treatment  $    7,500.00
$322,112.37"
Having made that assessment, the Commissioner went on to consider the effect of the constraints imposed by s 93F of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). The section read:

"1. Unless an agreement or determination that the degree of disability the worker is not less than 30 per cent is recorded for the purpose of s 93E -
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability of the maximum amount that may be awarded; and
(b)The maximum amount of damages that may be awarded is an amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30 per cent in degree".

The maximum amount of damages, applying "Amount A", was $293,990 at the time this case was dealt with.
The Commissioner referred to the cases of Guest v NRMA Insurance Ltd [2002] WADC 115 and Lockyer v Marshall (2004) 37 SR (WA) 90, in which District Court Judges considered the method of assessment under s 93F. The learned Commissioner noted that in Guest's case, Viol DCJ observed that it was noteworthy the legislature had elected to use the expression "determined according to the severity of disability" rather than determined according to "the degree of disability". The Commissioner noted that both counsel contended that it was appropriate to first carry out an assessment of damages in the traditional manner and then to apply s 93F, and he did so.
The learned Commissioner then set out factors which were relevant to his assessment of the "severity of the disability". He concluded that he was satisfied that the "severity of the disability" put the respondent in "a most extreme case of a disability of less than 30 per cent", and on that basis ordered that the respondent was entitled to the maximum allowed under the Act. Judgment was given for $293,990.
The appellant appeals against that judgment on the following grounds:
"The learned Commissioner erred in fact and law by:
(a)holding that the severity of the respondent's disability represented a most extreme case of a disability of not less than 30% in degree; and
(b)awarding the respondent the maximum sum that could be awarded under Section 93F(1)(a) of the Workers Compensation and Rehabilitation Act 1981,
in circumstances where, on the facts, the respondent's disability was not such a case, and the learned Commissioner's discretion thereby miscarried."

The proper construction of section 93F and the method of application of the section

The word "disability" is used in s 93F. That word was defined in s 5 of the Act at the relevant time to mean, inter alia, "injury". However, it has been recognised in decisions of this Court that Parliament, when using the word "disability" in the Act the word may have different meanings. In s 93D the word has its non‑technical meaning: Girrawheen Tavern v Joseph [2003] WASCA 244 at [48] and [49]. In my opinion, the word when used in s 93F is used in its ordinary or non‑technical meaning of incapacity.
In Southgate v Waterford (1990) 21 NSWLR 427 the New South Wales Court of Appeal considered some of the history of legislation which has been passed at different places limiting awards of compensation, either under the general law or under workers' compensation legislation. See 434 ‑ 438. What may be observed from that review is that the legislative provisions, which have been drafted elsewhere with a view to constraining courts from awarding compensation, contain no single form of words. In the provision under consideration in Southgate (supra) (s 67(3) of the Workers' Compensation Act 1987 (NSW)) and in Offset Alpine Printing Pty Ltd v Porteous (1992) 8 NSWCCR 489, the trial Judge had to determine an amount proportionate to the maximum amount having regard to the degree and duration of pain and suffering, but also to the "severity of the loss or losses". In Wylde v Aristondo'Arriaza (1997) 25 MVR 539, the Full Court of the Supreme Court in this State considered the constraint imposed by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) which required a determination of the proportion of the maximum amount by reference to the "severity of the non‑pecuniary loss". The legislation considered in those cases also capped damages for non‑pecuniary loss no matter how slight or how serious the injuries or disability which caused the loss, and so it applied to such damages for the "most extreme case" which would "include quadriplegia": see Southgate at 440.

In this case the section in question, while lifting some phrases from other legislation which has been employed elsewhere and in this State, does not repeat the precise form of any other legislation. Section 93F is also notably different in effect because it applies to all damages pecuniary and non‑pecuniary. It does not just apply to non‑pecuniary damages. Further, in the case of s 93F, the proportion of the maximum amount or amount "A" is to be struck not by reference to loss but by reference to the "severity of the disability" involved in the particular case. Furthermore, the most severe case for the purposes of s 93F, could not include a disability caused by quadriplegia because the section only operates in relation to a limited range of cases where the worker's degree of disability is relatively low, ranging from between 16 per cent and up to, but not including, 30 per cent.
Nevertheless, guidance on some points may be found in the construction of the section in cases dealing with the other legislation where a precise phrase or word has been reproduced in s 93F. In Dell v Dalton (1991) 23 NSWLR 528 at 533, Handley JA said:
" … the cross-respondent submitted that the word 'most' in the subsection meant 'very' and did not have the meaning given in the Macquarie Dictionary of 'in the greatest quantity, amount, measure, degree or number' that was relied upon by the cross-appellant. [The cross‑respondent] gave as examples of its use with this meaning such expressions as 'you are most welcome' and 'this is a most unfortunate occurrence' where it was clearly a synonym for 'very'.
In my opinion this submission should be accepted. … The use of the indefinite article in the subsection however provides for the creation of a class of 'most extreme' cases which necessarily means that the cases may be different, and some may be worse than others. …
The expression 'a most extreme case' is not the subject of any statutory definition. The words have no technical legal significance and there is no indication that Parliament intended any other meaning than that which the words ordinarily have in this country at this time."
I agree that the word "most" in s 93F has the same meaning.
I also agree that the section does not require a "single grisly table of catastrophes" into which the respondent's disability must be fitted. See Dell v Dalton at 532 ‑ 533.
The introductory words of s 93F make it clear that damages for severe disabilities like quadriplegia are not the subject of this section. This is because those words make it clear that the section does not apply to impose any restriction on the award of damages if there is an agreement or determination that the degree of disability is not less than 30 per cent.
Next, the words in s 93F(1)(a) say that the amount of damages to be awarded is to be a proportion of the maximum amount that may be awarded. That proportion is to be determined according to the severity of "the" disability. The use of the definite article means that it is necessary to concentrate on the particular disability in question, which in this case is a disability to the wrist. However, the proportion of the maximum amount which is to be awarded is also affected by what is in s 93F(1)(b) because the words after the comma in that paragraph state that the maximum amount which may be awarded is only to be awarded in a most extreme case of "a" disability of less than 30 per cent in degree. The use of the indefinite article "a" potentially requires consideration to be given to many disabilities of less than 30 per cent in degree. A reference to Sch 2 shows that this is a wide and diverse range. So the person who suffers a total loss of taste or a total loss of smell, the loss of a great toe, permanent loss of part of the efficient use of sight of both eyes, or permanent loss of part of the efficient use of an arm or leg may be within this category.
Thus, the amount of damages to be awarded will be affected by both the severity of the particular disability and the whole category of most extreme cases of disabilities of less than 30 per cent in degree. That requires a consideration of a whole range of factors. In Marshall v Lockyer [2006] WASCA 58, the Court of Appeal (Roberts-Smith and McLure JJA and Murray AJA) considered this section. Roberts‑Smith JA rejected the submission made in that case that s 93F(1) required the determination of a simple proportionate relationship between a degree of disability, assessed in accordance with s 93D(2), and the prescribed amount, taken as 100 per cent. See [238]. His Honour concluded that a "discretionary rather than a mathematical calculation" was necessary. McLure JA said this of the section at [327]:
"The appellant contends that s 93F(1)(a) requires a court to compare the severity of the subject disability with a most extreme case of a disability of a degree less than 30 per cent which is likely to cause substantially greater economic and non economic loss. The Court is not required to contemplate the worst kind of injury of the type suffered by the respondent. There can be a range or class within which a disability of a particular kind may qualify as a most extreme case of a disability of less than 30 per cent in degree. Further, the quantum of economic loss is a relevant but not determinative factor in assessing the relative severity of an injury. Injuries received in older age may have a disproportionate impact. Having regard to the nature and extent of the respondent's injuries, I am not satisfied that the appellant has established that they cannot reasonably fall within the class of a most extreme case. I would dismiss this ground."
Murray AJA was of the view that damages should be assessed in the ordinary way as at common law and that the section merely provided a cap on damages.
Thus, there is a difference of opinion between McLure JA and Roberts‑Smith JA on the one hand and Murray AJA on the other. I agree with McLure JA's view expressed in [327], set out above, which is consistent with my analysis which is also set out above.
The question has been raised in this case whether the Court, in making the determination about the severity of the injury, has to consider the economic consequences of the injury? Does the person in this category have to show that they have suffered very severe economic loss, and will a person with the same injury but no economic loss not be in the "most extreme case" category? Examples were given during the hearing about a person with an injury to a forefinger, which may produce economic loss of hundreds of thousands of dollars in the case of a concert pianist, but no economic loss at all to an accountant.
In my opinion, economic loss suffered by the worker is relevant but not determinative. It is just one factor to be taken into account. McLure JA in Marshall v Lockyer was of the same opinion. If a person loses a finger then it may cause significant economic loss to a pianist, but the lack of economic loss caused to an accountant does not mean that the accountant's disability cannot be a "most extreme case". Other factors, such as the impact of the disability on the ordinary activities of life, such as sporting activities, will be relevant. The pain and suffering experienced will often restrict a person's capacity to carry out tasks, and so pain and suffering may be a relevant factor. There will doubtless be other factors. The Court will weigh up all those factors and make a determination about the severity of the disability.
Parliament chose not to make the extent of loss, assessed in the traditional way at common law, the determinant, as was the case in s 3C of the Motor Vehicle (Third Party Insurance) Act and in the New South Wales legislation. The amount of damages which might have been awarded at common law is merely one indicator of the extent of disability. It will not be the determining factor because damages are calculated by reference to both transient and permanent effects of an injury. The disability under consideration here is one involving permanent loss or permanent loss of the efficient use of a part of the body.
Under 93F, the proportion of Amount A is to be determined solely by reference to the severity of the disability. As Handley JA said in Dell v Dalton, this is an issue like other issues in the assessment of damages, and its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment. An appeal court will only be entitled to intervene and disturb the ultimate conclusion of the trial Judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injury. See Dell v Dalton (supra), at 533 ‑ 534. The assessment is quasi discretionary in nature: Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376 at [40]. The parameters of the evaluation cannot be defined with precision: Ellis v Rantzos [2005] NSWCA 266 at [43], and see also Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253.
I now refer to the findings made by the learned Commissioner. He found that the injury to the wrist was a severe injury to the non‑dominant left wrist. There was a 70 to 80 per cent chance that over the next 10 to 15 years an arthrodesis would be required. The injury was one which was consistently productive of pain. It restricted the respondent's ability to engage in heavy physical activity in the workplace. He faces the possibility of further deterioration and surgery. This injury was suffered by a person with limited education and had restricted his sporting activities. He suffered loss of earnings and future loss of earning capacity estimated at $219,000. He incurred past medical rehabilitation and future treatment costs exceeding $34,000. None of those findings were in dispute.
The appellant submits that the Court should conclude that the determination should have been that the disability was 50 per cent of the most serious category of cases. In my opinion, that is mere assertion. Error cannot be shown by mere assertion. The determination is not unreasonable or plainly unjust, and it is not manifestly wrong to say that this disability fits into the category of cases which may be described as most extreme.
It will be very difficult for an appellant to disturb an assessment made by a trial Judge where a discretion as broad as that in s 93F is conferred. In this case no submission has been made that any relevant consideration was not taken into account or that any irrelevant consideration was taken into account, and his Honour made no error of principle.
In paragraphs [100] ‑ [103] the learned Commissioner referred to many factors, all of which were relevant to his conclusion. He referred to the age of the respondent, the number of operations he had had, the pain that he had experienced, the scarring he was left with, the effect on his earning capacity, his educational qualifications, the permanent restrictions he was left with and the reduction in the range of employment opportunities available to him. As his Honour said at [103], taking all those factors into account, and also the quantum of assessment likely upon a traditional common law approach, he was satisfied that the "severity of the disability" put the plaintiff in "a most extreme case of a disability of less than 30 per cent".
In my opinion, that decision is entirely unimpeachable.
The appeal should be dismissed.