Citation : DA SILVA -v- FIOCCO HOPKINS NASH & ANOR [2005] WADC 37

Solicitors' negligence - Failure to pursue common law action against plaintiff's former employer - Action statute barred - Loss of chance - Principles to be applied in determining the value of the plaintiff's lost opportunity

Workers' compensation - Question referred to medical assessment panel - Jurisdiction of panel - Privative clause - When determination of panel is final and binding

Workers' compensation - Degree of disability - Whether two or more items in Sch 2 of the Workers' Compensation and Rehabilitation Act 1981(WA) applied to the respondent's disabilities and should be aggregated for the purpose of determining her degree of disability - Principles for determining when two or more items in Sch 2 may be aggregated

Limitation period - Tort - Actual damage that is "measurable" - Aggravation of existing condition

Workers' compensation - Whether "a most extreme case" - Methodology of assessment of damages

Limitation Act 1935 (WA), s 38(1)(c)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(1), s 24, s 24A, s 24B, s 25, s 31(a), s 84ZH, s 93D, s 93E, s 93F, s 143E, s 143F, s 145A, Sch 2

Orders made by the learned Judge below varied pursuant to the respondent's further amended notice of contention

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120

Australian Specialised Meat Products Pty Ltd v Turner (1995) 11 NSWCCR 614

Baker v Crittenden, unreported; CA SCt of NSW; 17 July 1995

Cartledge v E Jopling & Sons Ltd [1963] AC 758

Casserly v Alcoa of Australia Ltd [2006] WASCA 150

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Crystal Wall Pty Ltd v Pham [2005] NSWCA 449

Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; (2002) 4 VR 570

Dell v Dalton (1991) 23 NSWLR 528

Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395

Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996

Feletti v Kontoulas [2000] NSWCA 59

Girrawheen Tavern v Joseph [2003] WASCA 244

Illawarra Area Health Service v Dell [2005] NSWCA 381

Instant Nominees Pty Ltd v Redman [1987] WAR 218

K B Hutcherson Pty Ltd v Correia [1995] HCA 70; (1995) 183 CLR 50

Kitchen v Royal Air Forces Association [1958] 1 WLR 563

Marshall v Lockyer [2006] WASCA 58

Marsland v Andjelic (1993) 31 NSWLR 162

Moran v McMahon (1985) 3 NSWLR 700

Mount Isa Mines Ltd v Peachey, unreported; CA SCt of Qld; 1 December 1998

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

Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394

Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997

Radosavljevic v Radin [2003] NSWCA 217

Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998

Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302

Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

Sheldon v McBeath (1993) Aust Torts Rep 81-209

United Construction Pty Ltd v Maketic [2003] WASCA 138

Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Australian Coal and Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Baines Manchester v Winspear, unreported; CM­41/94; (Packington JR); 29 November 1994

Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Hamilton Hill Tavern v Maddox, unreported; CM­72/98 (Heath SA); 23 December 1998

Malec v J C Hutton [1990] HCA 20; (1990) 169 CLR 638

Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190

Minervini v Royal Perth Hospital, unreported; CM­53/94; (Packington JR); 24 October 1994

Olympic Holdings Pty Ltd v Lochel [2004] WASC 61

Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; (2003) 59 NSWLR 14

Scott & Ors v Echegaray (1991) Aust Torts Rep 81-120

Tutunkoff v Thiele (1975) 11 SASR 148

West Australian Museum v Kiljpa, unreported; CM­37/99 (Heath SA); 21 July 1999

Wilson v Peisley (1975) 50 ALJR 207

1 McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. I agree with the orders he proposes generally for the reasons he gives. However, I propose to state my reasons for dismissing ground 2 of the appeal. The appellant identified the issue raised by that ground as whether the decision of K B Hutcherson Pty Ltd v Correia [1995] HCA 70; (1995) 183 CLR 50 applied to the assessment of the respondent's degree of disability under the relevant legislation being the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). That question was recently considered by this Court in Casserly v Alcoa of Australia Ltd [2006] WASCA 150. At the time of hearing this appeal, Casserly had been argued and the decision reserved. The Court in Casserly distinguished Hutcherson on its facts. We have not had the benefit of submissions from the parties concerning Casserly. However, submissions are unnecessary because this ground must fail whether or not Hutcherson applies.

2 In Hutcherson, a worker suffered a single injury to his back which resulted in the partial loss of the efficient use of his legs both below, and at and above the knee. The amount of compensation payable to the worker for the injury had to be calculated by reference to a table which is similar in structure to Schedule 2 of the Act. The table in the New South Wales legislation provided:

Loss of either leg at or above the knee 75

Loss of either leg below the knee 70."

3 The trial Judge had made separate findings as to the loss of the efficient use of each leg at or above the knee and below the knee and aggregated the individual assessments. The High Court held that this approach was inconsistent with the statutory scheme. It reached that conclusion because of the potential for double counting of the same loss under each item with the result that the compensation for loss of the efficient use of the leg below and at or above the knee could be greater than the compensation for the loss of the entire leg by amputation. The High Court said the trial Judge should have determined the extent to which the entire limb below the uppermost point of affection is lost or its use is lost. If the highest point of affection is above the knee, the loss of efficient use of the limb below that point, including below the knee, is assessed under the item for "Loss of either leg at or above the knee" ("the Hutcherson approach"). However, the High Court made it clear (at page 54) that that approach does not apply to successive injuries to a limb. In that event each injury is separately assessed under the relevant

item. If one injury causes loss of efficient use above the knee and a later injury causes loss of efficient use below the knee, the separate items in the table apply.

4 Further, the vice of the approach taken by the trial Judge in Hutcherson was not aggregation per se. The vice is the potential for double counting of the same loss. Where it is apparent from the nature and consequences of the injury or from the medical evidence or both that there is no double counting, there can be aggregation because the loss of the efficient use of the entire limb below the highest point of affection (which, under the Hutcherson approach, determines the item that applies) will equal the sum of the loss of the efficient use of each section of the relevant limb.

5 On the facts in this case, the respondent (like the worker in Casserly) suffered separate and successive injuries in which event the Hutcherson approach does not apply. Even if the Hutcherson approach does apply in this case, it is clear from the trial Judge's findings that there was no double counting in the relevant medical evidence in which event the loss of use of the entire limb below the uppermost point of affection could be calculated by aggregating the loss caused by the separate injuries. It was clearly open to the trial Judge to conclude, as he did, that the respondent had reasonable prospects of establishing a degree of disability of at least 16 per cent.

6 PULLIN JA: I have read the reasons of McLure JA and Buss JA. I agree with McLure JA in relation to ground 2 and agree with Buss JA's reasons in relation to the other grounds of appeal and in relation to the further amended notice of contention.

8 BUSS JA: The respondent was born in Portugal on 17 February 1954. Since January 1985 she has been permanently resident in Australia.

9 Between 1990 and 1996 the respondent was employed by Nell Gray Fashions, a small clothing manufacturing firm, which produced, amongst other things, hospital uniforms, boutique fashions for local designers, and T-shirts. Initially, the respondent's duties required her to operate an overlock machine. In about late 1992, her duties included ironing. As from January 1993, the whole of the respondent's work involved ironing.

10 In about October or November 1993 the respondent began to feel numbness and discomfort in her right hand, which was the hand she used

to hold the iron. She alleviated the numbness by shaking her right arm, and continued ironing. The numbness did not persist after she ceased work for the day. The respondent continued to perform her ironing duties, notwithstanding the intermittent numbness she experienced.

11 In October 1994 the respondent noticed "pins and needles" in her right hand, in addition to numbness and discomfort, especially when she held the iron. Those symptoms were felt at work, but only the discomfort continued when she ceased work for the day.

12 On 18 November 1994, at night, the respondent's symptoms deteriorated. She awoke with pain in her right hand. The pain was accompanied by numbness and "pins and needles" from her hand to her elbow. She had not previously experienced comparable pain. Later, on 18 November 1994, the respondent went to work and informed the person, to whom she was responsible, of the pain she had suffered during the night. As a consequence, she was relieved of her ironing duties and instructed to carry out other, less strenuous, work. After 18 November 1994 the respondent did not perform any ironing.

13 On 3 December 1994 the respondent consulted her general medical practitioner, Dr Angela Chew, who prescribed analgesic pain relief and certified her unfit to work for fifteen days.

14 During 1995 the respondent did not work. In or about April 1995 she began to experience pain in her right shoulder and neck.

15 Between January and August 1996 the respondent worked at Nell Gray Fashions for 21/2 hours per day, three days per week. She operated a button sewing machine and an overlock machine. The necessity to move her right hand constantly when performing that work caused her pain.

16 In August 1996 the respondent was given a letter dated 16 August 1996 from Nell Gray Fashions which informed her that, as she was unable to perform ironing, her employment would cease from that day.

17 In June 2000 the respondent engaged Fiocco Hopkins Nash, a firm of solicitors, to advise her in connection with a possible claim against Nell Gray Fashions in respect of alleged work related injuries. On or about 23 June 2000 the respondent received a letter dated 23 June 2000 and a form of authority from Fiocco Hopkins Nash. The letter informed the respondent that as from 1 July 2000 the appellant, another firm of solicitors, would be acting for her. The respondent signed and returned the form of authority, which authorised the appellant to act for her.

18 By a letter dated 26 September 2000, John Fiocco, a partner of the appellant, wrote to the respondent, relevantly, in these terms:

"I refer to your recent enquiry regarding the progress of your workers' compensation claim.

As you instructed, I approached the solicitor for your employer to discuss with them the possibility of an informal conference with a view to settling your claim. They confirmed with us that they have been instructed by their client not to pursue an informal conference and to close their file. They also advise that any further dealings in this matter will have to be directed to the insurer Allianz directly. Of course, your workers' compensation payments will continue.

As you are also aware, I have been attempting to progress a negligence claim against your employer. However, as I explained at the conference at my office with yourself and members of your family, since the changes to the Law made on 5 October 1999, a negligence claim cannot be brought against your employer unless you have a permanent disability of at least 16%. At present, I have filed documents indicating that your percentage disability is at least 17% but that is being disputed by the insurance company. In particular, the insurance company is disputing that your right shoulder problems are as a result of a work related injury.

The dispute as to the level of your percentage disability has been referred to WorkCover and you will be aware that a preliminary hearing which was scheduled for February was adjourned.

I was aware that you were undergoing a hysterectomy operation in late June and I was awaiting your recovery before I proceeded with your claim.

I will now re-list the preliminary review in order that the question of the level of your disability can be determined with a view to establishing liability for negligence against your employer."

19 In July 2001 the respondent, accompanied by her daughter, Susana, had a meeting with Mr Fiocco. He advised the respondent that her claim against Nell Gray Fashions was "a lost cause" and that if she wished to proceed she should instruct other solicitors.

The respondent commences proceedings against Fiocco Hopkins Nash and the appellant

20 On 13 August 2002 the respondent commenced proceedings in the District Court against Fiocco Hopkins Nash and the appellant. She alleged that in consequence of their negligence she was deprived of the opportunity of obtaining damages from Nell Gray Fashions. The respondent's claim against them was brought in contract and tort. Prior to trial, the respondent discontinued her claim against Fiocco Hopkins Nash. Her claim against the appellant was tried before Mazza DCJ between 20 and 24 September 2004. On 3 March 2005, the learned Judge entered judgment for the respondent in the sum of $71,113.85.

The respondent's pleaded case against the appellant

21 The respondent's pleaded case against the appellant was, relevantly, as follows:

(a) On or about 18 November 1994 the respondent was injured in the course of her employment with Nell Gray Fashions. She was injured while carrying out repetitive ironing activities over lengthy periods of time. Her injuries were to her right arm, hand, shoulder and neck.

(b) The respondent's injuries were caused by the negligence of Nell Gray Fashions.

(c) As a result of her injuries, the respondent suffered and will continue to suffer loss and damage.

(d) In or about August 1999 the respondent engaged Fiocco Hopkins Nash to act for her in respect of her injuries.

(e) On or about 17 November 1999, the respondent instructed Fiocco Hopkins Nash to pursue a common law claim in negligence against Nell Gray Fashions.

(f) On or about 17 November 1999, Fiocco Hopkins Nash, on behalf of the respondent, commenced proceedings in the Conciliation and Review Directorate for a determination of her degree of disability for the purposes of s 93E of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the WCR Act") ("the WorkCover proceedings").

(g) On 17 February 2000, the WorkCover proceedings were adjourned indefinitely. The adjournment was sought by Nell Gray Fashions and consented to by the respondent, acting on advice from Fiocco Hopkins Nash.

(h) On or about 1 June 2000, Fiocco Hopkins Nash merged with the appellant, and as from about 1 June 2000 the appellant acted for the respondent. Mr Fiocco continued to be responsible for the conduct of the respondent's retainer.

(i) Between 17 February 2000 and 18 November 2000, no action was taken by Fiocco Hopkins Nash or the appellant to re-list the WorkCover proceedings, to issue proceedings in the District Court against Nell Gray Fashions, or otherwise to progress the respondent's claim against her former employer.

(j) The limitation period for commencing a common law claim against Nell Gray Fashions in respect of the respondent's injuries expired on 18 November 2000.

(k) The appellant was negligent in the conduct of the retainer (and thereby breached duties owed to the respondent in contract and tort), in that the appellant:

(i) "failed to advise the [respondent] that common law proceedings must be commenced on or before 18 November 2000 failing which her claim would be statute barred";

(ii) "advised the [respondent] to consent to an adjournment of the WorkCover proceedings when there was no basis for consenting to the adjournment, particularly in circumstances where the limitation period was due to expire in 9 months and there was sufficient medical evidence to proceed to review";

(iii) "consented to a sine die adjournment of the WorkCover proceedings when there was no basis for consenting to the adjournment, particularly in circumstances where the limitation period was due to expire in 9 months and there was sufficient medical evidence to proceed immediately to review";

(iv) "failed to take any or any adequate action to have the WorkCover proceedings re-listed and determined expeditiously";

(v) "failed to direct the review officer hearing the WorkCover proceedings to the determination by the Medical Assessment Panel, dated 8 January 1997, which was binding upon the review officer pursuant to section 145E(5) of the [WCR Act]";

(vi) "failed to regularly update the [respondent] as to the progress of the proceedings and to seek the [respondent's] instructions";

(vii) "failed to issue and serve a Writ of Summons against Nell Gray Fashions on or before 18 November 2000"; and

(viii) "caused or permitted the [respondent's] claim against Nell Gray Fashions to become statute barred by reason of the failure to issue and serve a Writ of Summons on or before 18 November 2000".

(l) If the appellant had not breached its duties, the respondent would have commenced proceedings against Nell Gray Fashions before 18 November 2000, would have satisfied the requirements of s 93E of the WCR Act for awarding common law damages (including the making of an election for common law damages), and would have succeeded in recovering damages against Nell Gray Fashions.

(m) By reason of the appellant's breach of duty, the respondent suffered loss and damage, being the damages to which she would have been entitled under s 93F of the WCR Act.

In her prayer for relief, the respondent claimed damages, interest and costs.

22 The appellant, in its amended defence, alleged, relevantly:

(a) Between January and July 1993, the respondent experienced pain or discomfort in her right hand or right arm ("right hand or arm symptoms").

(b) In or about April 1995, the respondent began experiencing pain or discomfort in her right shoulder and neck ("right shoulder symptoms").

(c) The appellant denied that Nell Gray Fashions was negligent as alleged or at all.

(d) The appellant admitted the retainer but did not admit any breach of duty.

(e) The limitation period for a common law action by the respondent against Nell Gray Fashions, alternatively for her right hand or arm symptoms, expired before August 1999.

(f) The limitation period for a common law action by the respondent against Nell Gray Fashions for her right shoulder symptoms expired before August 1999, alternatively before 17 November 1999.

(g) The appellant denied that at any relevant time the respondent had any real prospect of proving common law liability on the part of Nell Gray Fashions in relation to her right hand or arm symptoms or her right shoulder symptoms.

(h) The appellant denied that the respondent ever had any real prospect of establishing that she had a "significant disability" for the purposes of s 93E(4) of the WCR Act in relation to her right hand or arm symptoms, or, alternatively, to her right hand or arm symptoms and her right shoulder symptoms ("significant disability").

(i) If, which the appellant denied, the respondent ever had any real prospect of establishing that she had a significant disability, the appellant denied she would have elected to receive common law damages instead of weekly payments of compensation.

(j) If, which the appellant denied, the respondent had suffered any loss by the appellant not commencing common law proceedings against Nell Gray Fashions in relation to her right hand or arm symptoms or her right shoulder symptoms, the respondent's loss was reduced by the workers' compensation which she received from Nell Gray Fashions in respect of those symptoms.

23 The expert evidence before the learned Judge comprised, relevantly:

(a) a report from Dr Chew (which was tendered by consent; Dr Chew was not called to give oral evidence);

(b) oral evidence and reports from Dr Hayes, a consultant physician in rheumatology;

(c) reports from Mr Allen, a surgeon (which were tendered by consent; Mr Allen was not called to give oral evidence);

(d) reports and oral evidence from Mr Jeffries, an orthopaedic surgeon;

(e) a report from Dr Home, a consultant in occupational medicine (which was tendered by consent; Dr Home was not called to give oral evidence);

(f) a report from Dr Crocker (which was tendered by consent; Dr Crocker was not called to give oral evidence); and

(g) a report and oral evidence from Ms Miller, an ergonomist.

24 Dr Chew's report, dated 28 April 1995, states that the respondent consulted her on 3 December 1994 with pain in her right hand, wrist and elbow. Dr Chew made a provisional diagnosis of "inflammatory process of either soft tissue or joints". She arranged for various tests to be carried out. The respondent did not respond positively to rest, anti-inflammatory medication and occupational therapy and, in consequence, Dr Chew referred her to Dr Hayes.

(a) Dr Hayes first examined the respondent on 4 April 1995 and thereafter saw her on numerous occasions up to 16 September 1996. He did not see the respondent again until 2004, in preparation for the trial.

(b) When Dr Hayes first examined the respondent she had symptoms of right median nerve compression and irritation at the wrist. Dr Hayes referred her for nerve conduction studies. At the time she had no symptoms in her cervical spine or right shoulder joint.

(c) The nerve conduction studies confirmed Dr Hayes' diagnosis of right median nerve compression at the wrist. The respondent's principal ongoing complaint was pain and, in consequence, Dr Hayes believed there was "a strong component of median nerve irritation complicating the nerve compression". Trial steroid injections into the right carpal tunnel did not alleviate the respondent's symptoms and she was therefore referred to Mr Allen for surgery. On 28 July 1995 Mr Allen performed a right carpal tunnel decompression.

(d) When Dr Hayes saw the respondent on 8 May 1995 she had developed pain over the right side of her neck during the preceding three weeks.

(e) When reviewed by Dr Hayes on 1 September 1995, after the right carpal tunnel decompression, the respondent complained of pain in the right shoulder joint. Dr Hayes' examination of her shoulder revealed symptoms typical of rotator cuff tendonitis.

(f) Despite having undergone carpal tunnel decompression, the respondent continued to experience significant symptoms of pain and paraesthesia in her right hand and forearm. A further nerve conduction study by Professor Mastaglia showed improvement in the conduction, but it did not return to normal.

(g) In his report dated 25 September 1996, Dr Hayes said, relevantly:

"(a) The unusual feature with respect to her carpal tunnel syndrome is the fact that the patient has a lot of pain and this can be explained by the fact that she has clinical signs of both median nerve compression and irritation. The neural irritation is evidenced by the tenderness on palpating the median nerve at the wrist and in the forearm. In addition she has clinical signs of increased neural mechano-sensitivity on stretching the median nerve.

(b) Surgery usually reduces the symptoms of paraesthesia in these patients, but does not necessarily get rid of their pain. It is thus not surprising that this lady still has significant residual symptoms despite having undergone carpal tunnel decompression. I expected that the patient would still have some degree of symptoms despite undergoing surgery.

My diagnosis is that she has a compressive and irritative neuropathy in the right median nerve at the wrist and that this is work related.

Her second problem is that of right ROTATOR CUFF TENDONITIS with Impingement and ... this problem is not work-related.

Her third problem is the flare-up of neck pain which occurred in May 1995 and is still present to a mild degree. This is most likely due to degenerative disease in the cervical spine. Her current neck symptoms, however, are minimal. I do not feel that her neck symptoms are work-related as they only began around late April 1995 whilst she was not working.

...

Her prognosis is such that she is likely to have ongoing residual pain and paraesthesia from the irritation in the right median nerve at the wrist. This pain is neuropathic in type and although apparently of mild to moderate severity, these symptoms are likely to persist for a further 3-5 years but hopefully will settle in the long term.

The right rotator cuff tendonitis with impingement has not responded to steroid injection and in my opinion she requires arthroscopic decompression of the rotator cuff.

I feel that the overall degree of pain and paraesthesia in the right hand has lessened to a mild degree compared with prior to surgery. However, she still has obvious tenderness in the median nerve with clinical signs of neural irritation which is more than enough to explain the ongoing symptoms in the right hand.

I feel that the problem with the right median nerve at the wrist is definitely work-related. The rotator cuff tendonitis and impingement in the right shoulder, however, only came on when she had been off work for a number of months and really is not work-related. Furthermore, her neck symptoms also began in late April 1995 whilst not working and are not work-related.

The reason why the carpal tunnel syndrome is work-related is the fact that she was ironing 8 hours a day for 5 days a week using a heavy iron. Pressure of the handle of the iron on the carpal tunnel and extending the wrist in this manner would be more than enough to explain her condition.

...

The right median nerve compression and irritation has left this lady with a 10% loss of the effective use of her dominant right hand and forearm for the next 5 years. Hopefully by the end of this period her pain level will have eased significantly and she will have better use of the hand.

She also has a 10% permanent disability in the right shoulder as a result of the rotator cuff tendonitis with impingement. This condition, however, is not work-related.

...

I have also read the report of my colleague Dr Alan Home, date [sic] 24 June 1996. I agree with Dr Home that the patient has a rotator cuff tendonitis and that this condition is not work-related.

With respect to the carpal tunnel syndrome, I feel that Dr Home has overlooked the fact that the median nerve is quite tender at the wrist and furthermore the patient demonstrates clinical signs of increased neural mechano-sensitivity on stretching the median nerve. These signs are typical of neuropathic pain although I agree that she does not demonstrate features of allodynia etc. She thus does have evidence of median nerve irritation and I feel that this is the prime reason for her ongoing pain. I do not feel that there has been a recurrence of carpal tunnel syndrome as this lady's symptoms never went away following surgery and, in fact, have changed very little despite surgery."

(h) In his oral evidence, Dr Hayes explained the difference between nerve compression and nerve irritation, as follows:

"Nerve compression means that there is a delay in the conduction of nerve impulses and this in [turn] produces symptoms in the hand most commonly paraesthesia or pins and needles. That tends to be an intermittent phenomenon. With carpal tunnel syndrome there is simply nerve compression. You don't get nerve irritation. With nerve irritation the nerve is tender to touch and you may get extenuation of tenderness along the nerve trunk in the forearm together with altered sensation in the palm of the hand and the patient's symptoms are there 24 hours a day, whereas with carpal tunnel it's - the symptoms are intermittent with intermittent numbness and pins and needles which may occur every second day, or once a week, or may wake them at night. It's not there all the time."

26 It is unnecessary, for the purposes of this appeal, to set out anything from the reports of Mr Allen.

(a) In his report dated 1 November 1996, Mr Jeffries summarised information given to him by the respondent:

"She initially developed problems with her right upper limb in mid 1995. At that time she complained of a pins and needles sensation in the right hand. An EMG was apparently done at that time and confirmed a diagnosis of carpal tunnel syndrome. She underwent a carpal tunnel decompression in June 1995. This gave her relief of symptoms for five months or so. Her symptoms then tended to recur and she again noted a pins and needles sensation on an intermittent basis in her right hand. She also developed pain in her right shoulder and on the right side of her neck in early 1996. Her present complaint mainly relates to her right shoulder. She says she has pain over the lateral aspect of the shoulder. The pain is increased with movement. She complains that she is unable to abduct her arm above her head. She has tenderness when she lies on the right side. She says she still does have intermittent pins and needles and numbness in the right hand and this occasionally wakes her at night."

Mr Jeffries was of the opinion that the respondent's symptoms were principally related to rotator cuff tendonitis. He said that the respondent appeared primarily concerned about whether her shoulder problems were compensable. Mr Jeffries then expressed the following opinion:

"I am very doubtful about this in view of the fact that her shoulder symptoms appeared to develop at a time when she was not working."

(b) Initially, the respondent's shoulder condition was treated with physiotherapy and, later, with cortisone injections. These interventions were not successful. On 29 January 1998, Mr Jeffries performed an arthroscopic acromioplasty. Although this procedure has a significant rate of success (85 - 90 per cent) with recovery usually occurring within twelve months of the procedure, the respondent did not recover as anticipated. The pain in her shoulder persisted more than a year after the procedure.

(c) In his report dated 9 September 1998, Mr Jeffries expressed an opinion in relation to the development of the respondent's symptoms in her right shoulder:

"[The respondent's] original problems with her right shoulder appear to have developed whilst she was employed doing ironing. This requires repetitive abduction and rotational movements of the shoulder. As a result of this activity she has developed rotator cuff tendonitis. In my opinion, her ongoing shoulder symptoms are due to rotator cuff tendonitis stemming from this original injury. She also has cervical symptoms which are primarily secondary to her shoulder problem."

(d) In his report dated 11 May 1999, Mr Jeffries said, in relation to the respondent's shoulder condition:

"Further treatment options are limited. I have advised [the respondent] to continue on anti-inflammatory medication. I do not feel further cortisone injections will be helpful. Unfortunately, I do not feel there is a great deal further that can be recommended."

"The prognosis with regard to this lady's right shoulder is somewhat guarded in view of the fact that she has had a prolonged course of symptoms both pre and post operatively.

It does not appear that Mrs Da Silva has recovered significantly from the original condition.

Her ongoing symptoms are due to supraspinatus tendonitis which was the original diagnosis pre-operatively and related to her original injury and the onset of her shoulder symptoms in 1995 and 1996.

...

I do not consider that [the respondent] is fit to return to her pre accident occupation. She was previously employed doing ironing. She may be fit to do lighter sedentary work that does not involve repetitive use of her right upper limb, particularly overhead.

...

I consider that this lady does have a permanent residual disability of her right shoulder which I have assessed as a 10% disability."

(e) Mr Jeffries' opinion as to the cause of the respondent's rotator cuff tendonitis, as set out in his report dated 9 September 1998, is to be compared to and contrasted with his initial report dated 1 November 1996, in which he said he was "very doubtful" whether the respondent's shoulder condition was caused by her employment.

(f) In his oral evidence, Mr Jeffries explained that his change of opinion arose from a better understanding of the respondent's symptomatology. This understanding developed over the substantial period during which the respondent consulted him. He said:

"Well, there are a number of factors in that. The first time I saw her I perhaps didn't appreciate how much ironing she was doing, and in seeing her a number of times, you gain a bit more history, and so that with that added history I felt that it was quite repetitive work and quite long hours. She - or anybody who is ironing tends to have their arms slightly abducted and internally rotated and it's a repetitive back and forward movement, so I felt that was consistent. She had good clinical signs of rotator cuff tendonitis. She did have these other complaints of pins and needles, odd sensations in the arm, pain down the arm and so on, and some people who have rotator cuff tendonitis have so-called disaesthetic symptoms which are odd neurological symptoms; might fall into the general sort of description of carpal tunnel like symptoms. You can of course have a combination of having carpal tunnel and having disaesthetic symptoms from rotator cuff tendonitis, so there are a number of factors there and I thought it was a reasonable conclusion at the end of the day. There was no other obvious cause. She's obviously not a sporting sort of person, she wasn't doing a lot of other repetitive activities such as swimming or something which can cause rotator cuff tendonitis; that was the only activity which I assumed she was previously unaccustomed to doing that she suddenly - well, she undertook of a fairly prolonged repetitive sort of nature."

(g) In cross-examination, Mr Jeffries explained the statement in his report dated 11 May 1999 to the effect that the respondent had a permanent residual disability of her right shoulder which he assessed as a 10 per cent disability. Mr Jeffries said that the 10 per cent disability related to all symptoms associated with her right shoulder condition. The following questions and answers in cross-examination are important:

"So you're saying that to the extent she has any neck symptoms and any symptoms in her wrist and arm flowing from the shoulder, you assess that as a 10 per cent disability?---Yes.

...

So the whole lot from your point of view is 10 per cent?---Yes. It's very difficult to differentiate that precisely, whether it's shoulder, hand, neck, but that was my assessment at the time."

(h) In re-examination, Mr Jeffries said that he did not make any assessment of any disability arising out of the respondent's carpal tunnel injury. The following question and answer occurred:

"...

And what about the carpal tunnel injury? Did you make any assessment of the disability with regard to that?---I didn't because I was not involved in the assessment or the treatment of that; that all had occurred somewhat before I saw her. I thought, as I have already discussed, I thought some of those carpal tunnel symptoms may quite likely have been disaesthetic symptoms related to her shoulder injury. I didn't attempt to provide an assessment of the carpal tunnel problem because I really hadn't been involved in the management of that at any stage."

The term "disaesthetic symptoms" refers to numbness, tingling, burning or pain below the affected part.

28 Dr Home's report, dated 15 June 1999, records his opinion in relation to the respondent's prognosis, as follows:

"The prognosis is guarded. There may be further symptom improvement at the right shoulder. The natural history for tendonitis complaints is for inflammation to resolve over time. This can take many months or years in some circumstances.

It is likely that she will be left with some discomfort at the right wrist following her previous carpal tunnel surgery. She has reported discomfort with vigorous right hand activities over a long period.

I believe that [the respondent] will retain a capacity to undertake normal activity at bench height. She may have some difficulty with very strenuous gripping activities. However, I am certain that she can undertake cooking and bench height cleaning.

In my view, with suitable training she could perform clerical duties.

It is likely that motivational factors will lead to a clinical presentation of disability such as to prevent rehabilitation."

Dr Home's opinion, as to any relationship between the respondent's injuries, on the one hand, and her work-related activities with Nell Gray Fashions, on the other, was as follows:

"The worker's condition, that is carpal tunnel complaints and residual symptoms of intermittent paraesthesia in the right hand and some discomfort at the radial aspect of the right wrist with vigorous gripping activity, would relate to her accident in January 1994 [sic].

In my view, there is no relationship between her right shoulder complaints and her ironing duties nor the onset of complaints in the cervical spine and her ironing duties."

"I believe it is now reasonable to assess a level of permanent residual disability in relation to her carpal tunnel complaint. I believe that given her residual symptoms it is reasonable to assess a level of disability of Ten Percent (10%) of the full and efficient use of the right upper limb below the elbow."

29 Mr Crocker did not examine the respondent's right shoulder. He considered that her hand, wrist and lower arm injuries were work-related and he agreed with Dr Home's assessment of her level of disability. In his report dated 22 February 2000, Mr Crocker said:

"[The respondent] has a level of disability of 10% of the full use of her right upper limb below the elbow. This does not include any assessment in relation to her shoulder which I believe has been previously assessed as not work-related."

30 Ms Miller stated, in her report dated 3 February 2004, that the risk of the respondent developing "an overuse type injury such as carpal tunnel syndrome" was increased in consequence of the work methods adopted by Nell Gray Fashions. In particular, the factors which increased the risk of injury to the respondent were:

(a) the length of time which the respondent spent ironing without rest breaks;

(b) the absence of any variation in the tasks she performed; and

(c) the provision of an iron which was inappropriate for her hand size and ironing needs.

The learned Judge's findings in relation to the principal medical evidence

31 The learned Judge accepted Dr Hayes' evidence. His Honour said, at [85] - [86]:

"Dr Hayes' evidence as to the injuries to the plaintiff's right hand, wrist and lower arm being as a result of both carpal tunnel syndrome and nerve irritation was clear and comprehensible and was not, as it turned out, in any real dispute. I accept this evidence. His evidence as to the cause of the carpal tunnel syndrome was also clear and comprehensible and acceptable to me. His evidence as to the cause of the plaintiff's nerve irritation was not as explicit as it could have been but was sufficient to enable me to conclude it was caused by her ironing work.

As to the injury to the plaintiff's right shoulder, I accept Dr Hayes' evidence that the plaintiff suffered from rotator cuff tendonitis. The cause of this condition was the subject of more evidence than Dr Hayes' testimony and will be dealt with by me later."

32 The learned Judge evaluated Mr Jeffries' evidence, at [103] - [108], as follows:

"In my opinion, Mr Jeffries' diagnosis of the plaintiff's right shoulder injury as being rotator cuff tendonitis is correct and is consistent with the diagnosis of Dr Hayes. I was somewhat attracted to Mr Jeffries' reasoning which attributed the injury to the plaintiff's work as an ironing lady. Essentially, Mr Jeffries developed a good understanding of the plaintiff's ironing duties and in particular the effect of repetitive movement and the way the arm slightly abducts and internally rotates strikes me as being a good reason why the plaintiff may have developed rotator cuff tendonitis especially as she was not engaged in any other repetitive activity which can bring the condition on.

Whilst I am somewhat attracted to Mr Jeffries' reasoning, two matters associated with the issue of causation remain unresolved. The first is why the tendonitis would have manifested itself for the first time six months after the plaintiff ceased work as an ironing lady. Secondly, Dr Hayes' evidence that the plaintiff was susceptible to the condition because of her age and type 3 acromion were matters not raised with Mr Jeffries but were matters Dr Hayes thought were important.

It seems to me very likely that these issues would have been pursued at the notional trial of the plaintiff's action against her former employer.

In his report of 10 May 1999, Mr Jeffries assessed the plaintiff's disability in the following terms:

'I considered that this lady does have a permanent residual disability of her right shoulder which I have assessed as a 10% disability.'

In cross-examination, Mr Jeffries explained that the figure of 10 per cent included not only the shoulder but also the neck, arm, wrist and hand. In re-examination, Mr Jeffries said that he did not make any assessment of the disability arising out of the carpal tunnel injury because he was not involved in the assessment or treatment of that injury.

It seems to me that when Mr Jeffries made the assessment of 10 per cent he was making a judgment of how much the rotator cuff tendonitis and its associated symptoms had impaired the whole of the plaintiff's right arm from shoulder to hand. It must be borne in mind that Mr Jeffries thought that some of the plaintiff's lower right arm symptoms may have been dysaesthetic symptoms related to the shoulder injury. In my opinion, Mr Jeffries' assessment of a 10 per cent disability of the right arm did not include any assessment of disability of the right arm caused by the carpal tunnel syndrome and nerve irritation."

33 The learned Judge's conclusions, in relation to Dr Home's report, were set out at [112] - [114]:

"Dr Home's diagnoses as to the plaintiff's injuries in both her lower and upper right arm are consistent with the diagnoses of other doctors. As to the cause of the plaintiff's hand, wrist and lower right arm injuries, Dr Home is of the opinion that those injuries are work related. Dr Home's opinion as to the cause of the plaintiff's right shoulder complaints is that they are not work related but his reasons for this opinion are not apparent. As a result, I cannot give much weight to that opinion.

...

... With respect to Dr Home's opinion as to the percentage disability suffered by the plaintiff, I think that Dr Home's assessment relates to the plaintiff's hand, wrist and arm below the elbow and not the plaintiff's right shoulder."

The learned Judge's findings in relation to the respondent's future employment prospects

34 The learned Judge was of the opinion that the respondent's future employment prospects were "virtually non-existent". His Honour said, at [127]:

" ... The plaintiff's limited proficiency in written and oral English both in 1997 and more lately would, in my opinion, diminish her ability to gain employment, leaving aside issues of age, education, training and her physical health. When I include those factors in addition to her lack of proficiency in English, I am driven to the view that the plaintiff's future employment prospects are virtually non-existent."

The learned Judge's findings in relation to the appellant's alleged negligence

35 The learned Judge found that the appellant had been negligent. His findings of fact and reasoning, at [130] - [132], were as follows:

" ... The evidence before me from the plaintiff and her daughter is that when the plaintiff retained the first defendant, the date on which the plaintiff sustained her injury, was always regarded as 18 November 1994. This knowledge must have been known to Mr Fiocco given that he had the conduct of the matter during the first part of 2000 when he was a partner of the first defendant. Even if he did not actually have that knowledge he should have known this based on an even cursory reading of the file. In my opinion no reasonably competent solicitor would have failed to appreciate that any negligence claim against Nell Gray Fashions had to be commenced on or before 18 November 2000. I appreciate that the second defendant's position is that the limitation period had already expired but this clearly was not the view that was taken by the second defendant in the year 2000 and in any event is a matter of controversy which I will deal with later in this judgment. Whatever the position, the latest date on which the limitation period expired was 18 November 2000. If a writ was not filed on or before that day the plaintiff's claim against her former employer was lost for ever.

Because the second defendant elected not to call any evidence, there is no explanation from Mr Fiocco or anybody else as to why a writ was not issued against Nell Gray Fashions on behalf of the plaintiff prior to 18 November 2000. One explanation may have been that because the degree of disability of the plaintiff had not been determined the second defendant thought no action could be commenced. If that was the reason, it was wrong. The combined effect of s 93E(3) and s 93E(4) of the WCR Act is that a pre-condition for the awarding of damages is that the plaintiff has established, either by agreement or determination, that she has a degree of disability of not less than 16 per cent. Those subsections do not prohibit the commencement of an action in the absence of such a determination. Accordingly, an action could have been commenced against the plaintiff's former employer without a determination. The determination could have been made prior to the trial of the plaintiff's claim against her former employer. ...

Even if I am wrong in my interpretation of the operation of s 93E(3) and s 93E(4), and the plaintiff was required to obtain a determination before issuing a writ, in my opinion the second defendant failed in its duty of care by not doing anything to bring the proceedings before the Review Officer to a conclusion prior to 18 November 2000.

..."

The learned Judge's findings in relation to the limitation period applicable to the respondent's causes of action against Nell Gray Fashions

36 The respondent submitted to the learned Judge that the date on which the limitation period commenced was 18 November 1994, when pain first manifested itself in her right hand, wrist and lower arm. The appellant submitted to his Honour that the limitation period commenced when the respondent began to experience numbness in her right arm.

37 The date of commencement of the limitation period was critical to the learned Judge's assessment of the value of the respondent's lost opportunity to sue her employer for damages. If the appellant's submissions were correct, then the limitation period expired prior to the appellant commencing to act for the respondent on 1 July 2000. If, however, the respondent's submissions were correct, the limitation period did not expire until 18 November 2000.

38 The learned Judge's conclusions in relation to the limitation period and the injuries to the respondent's right hand, wrist and lower arm are set out at [151] - [154]:

"The onset of numbness in October or November 1993 was a sign of carpal tunnel syndrome. However, Dr Hayes' evidence was to the effect that the condition progressed gradually over time as a result of the plaintiff's continuous ironing. The plaintiff's evidence establishes, in my opinion, a clear and worsening progression of the syndrome commencing with discomfort then numbness and, finally, in October 1994, pins and needles in the right hand. Throughout this time, the plaintiff's former employer maintained a system of work which, for reasons I will expand upon later, negligently caused the plaintiff to suffer injury. In my opinion, the plaintiff's carpal tunnel syndrome was aggravated by her former employer's system of work which remained unchanged up to 18 November 1994: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120. In the circumstances, I find that the plaintiff's claim insofar as the carpel [sic] tunnel syndrome is concerned was not statute barred until six years after the plaintiff ceased her ironing work, that is, 18 November 2000.

In any event, what really incapacitated the plaintiff from work and triggered the adverse changes in her life outside work, was the onset of pain rather than the paraesthesia associated with carpal tunnel syndrome. As inconvenient as the paraesthesia was, it did not cause her to cease work and did not unduly inconvenience her life generally.

The plaintiff's pain was brought about in my opinion by irritation of the right median nerve as described by Dr Hayes. Dr Hayes attributed this injury to the plaintiff's ironing work. His evidence was that the injury could have occurred suddenly. Given that she had not experienced any pain prior to 18 November 1994, I think it is likely that the nerve irritation occurred on that date or very shortly before that date.

In my opinion the plaintiff's claim insofar as it relates to the pain caused by nerve irritation was not statute barred until 18 November 2000 because that injury did not occur until 18 November 1994 or shortly before that day. Whatever the precise day the plaintiff's action became statute barred I am of the opinion that it was at a point in time when the second defendant was acting for the plaintiff and had done so for some time."

39 His Honour's conclusions in relation to the limitation period and the respondent's shoulder and neck injuries are set out at [155]:

"As to the shoulder and neck injuries, neither of them manifested themselves until April 1995. There was nothing in the evidence which suggested that those injuries occurred very long before that date. In fact very little attention was given to this point at trial. The second defendant carries the onus of establishing that these injuries were statute barred. I do not believe that this onus has been discharged by the second defendant."

The learned Judge's summary of the statutory framework relating to the respondent's claim against Nell Gray Fashions

40 The learned Judge set out in detail, at [156] - [164], the statutory framework within which the respondent's claim against Nell Gray Fashions had to be resolved:

" ... I am content to assume, as the parties did before me, that any action which the plaintiff would have brought against her former employer would have been brought after 5 October 1999 and would have been subject to amendments made to the Workers' Compensation Rehabilitation Act 1981 [sic] by s 32 of the Workers' Compensation Rehabilitation Amendment Act 1999 [sic] which commenced on 5 October 1999.

Part IV, Division 2 of the WCR Act applies to the awarding of common law damages against a worker's employer in respect of a disability suffered by the worker if that disability was caused by the negligence of the worker's employer and compensation has been paid or is payable under the Act: s 92B(1). A court must not award damages to a person contrary to the provisions of Part IV, Division 2 of the Act: s 93C.

Leaving aside the case of the worker who has suffered a degree of disability of 30 per cent or more (it being common cause in this case that the plaintiff does not fall within that category) a worker can only be awarded damages if it is agreed or determined that the worker has a degree of disability of not less than 16 per cent and he or she elects to retain the right to seek damages: s 93E(3) and s 93E(4).

Where the worker and the employer cannot agree on the degree of disability the question of the degree of disability may be referred by the worker to the Director of Conciliation and Review ('the Director'). The question of a worker's degree of disability can only be referred to the Director if the worker produces medical evidence from a medical practitioner indicating that the degree of disability is not less than the relevant level: s 93D(6). Once the Director has received a referral the Director must notify the employer, who in turn must notify the Director if a dispute arises as to the worker's degree of disability: s 93D(7) and s 93D(8). Where a dispute arises the Director is obliged to attempt to resolve the dispute by consultation with the parties: s 93D(9). If the dispute cannot be resolved by agreement then the Director is bound to refer the question for resolution under the provisions of Part IIIA (other than Division 2) of the Act: s 93D(10). The effect of these provisions is that the question of the worker's degree of disability is decided by a Review Officer acting according to Part IIIA, Division 3 of the Act. A Review Officer is not bound by the rules of evidence: s 84ZD. Legal practitioners do not have an automatic right of audience and can only appear if all parties agree or the Review Officer is of the opinion that a question of law has arisen or will arise in the proceedings, s 84ZE. A Review Officer may refer a question as to the nature or extent of a disability to a medical assessment panel. Section 84ZH is in the following terms:

'(1) If permitted by section 145A to do so, a review officer may refer a question as to -

(a) the nature or extent of a disability;

(b) whether a disability is permanent or temporary_;_ or

(c) a worker's capacity for work,

for determination by a medical assessment panel.

(2) Without limiting subsection (1), that subsection applies to questions as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss, and as to the degree of disability assessed in accordance with section 93D(2).'

Part VII of the Act deals with the jurisdiction and power of a medical assessment panel. A medical assessment panel comprises two or three medical practitioners, at least one of which is to be a specialist in the particular branch of medicine or surgery that is relevant to the question being determined: s 145C. A medical assessment panel has the jurisdiction where there is a conflict of medical opinion between a medical practitioner or practitioners engaged by the worker and a medical practitioner or practitioners engaged by the employer.

The effect of a determination by a medical assessment panel [is] set out in s 145E(5):

'(5) Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined.'

... "

The learned Judge's findings as to the effect of the medical assessment panel's determination

41 The learned Judge found, at [183], that the medical assessment panel "most likely assessed the level of permanent disability with respect to [the respondent's] shoulder and neck and not her hand, wrist and lower arm". His Honour came to that conclusion because the panel's reasons refer solely to the respondent's shoulder injury. They make no reference to her hand, wrist and lower arm injury.

42 The learned Judge was of the view, expressed at [186], that:

" ... it seems to me that the nature of the dispute that WorkCover was asked to resolve at that time was not the carpal tunnel syndrome because workers' compensation had been accepted. Rather, the dispute related to the [respondent's] shoulder and whether or not that injury was related to the workplace."

43 The learned Judge noted that the respondent had two distinct areas of injury. The first was in her hand, wrist and forearm, and the second was in her right shoulder and neck. His Honour was of the opinion, expressed at [196], that:

" ... it would have been correct for the Review Officer to make two separate assessments under two items in schedule 2 and aggregate them in accordance with the provisions of the Act. This approach may, depending upon the Review Officer's findings as to the level of disability under the separate items in schedule 2, well have resulted in a finding that the [respondent's] disability was 16 per cent or more."

His Honour was of the view that the decision of the High Court in K B Hutcherson Pty Ltd v Correia [1995] HCA 70; (1995) 183 CLR 50 was distinguishable from the present case, but said, at [196]:

"Even if I am wrong in my opinion that the case of K B Hutcherson Pty Ltd v Correia can be distinguished, it still may be that the [respondent] would have convinced a Review Officer that her level of disability was 16 per cent or more because a Review Officer would have had to assess the [respondent's] disability under item 13 of schedule 2 taking into account all her injuries, not just the injury to the shoulder and neck."

44 The learned Judge summarised his conclusions, at [199]:

"On the evidence before me the [respondent] may well have established before a Review Officer that her level of disability was 16 per cent or more. I recognise that the [respondent] would have faced some difficulties before a Review Officer and so the outcome could not be said to have been certain but I nevertheless am of the view that her chances of establishing a disability of more than 16 per cent were reasonable."

The learned Judge's findings that the respondent would have elected to pursue a common law claim

45 The learned Judge found, at [200], that there was "little doubt" that, had the Review Officer determined that the respondent had a disability of not less than 16 per cent, she would have elected to pursue her common law claim against Nell Gray Fashions.

The learned Judge's findings as to the respondent's prospects of establishing negligence against Nell Gray Fashions

46 The learned Judge held, at [207], that "the chance of the [respondent] establishing negligence against her former employer was good". His Honour reiterated and expanded upon this conclusion, at [208]:

" ... based on the evidence of the [respondent] and Ms Miller I am of the view that the [respondent] had a good chance of success against her former employer. ..."

The learned Judge's findings as to whether the negligence of Nell Gray Fashions caused the respondent's injuries

47 The learned Judge found, at [212], that the negligence of Nell Gray Fashions caused the respondent's hand, wrist and lower arm injury. His Honour said:

"In my opinion, the [respondent's] hand, wrist and lower arm problems stemmed from carpal tunnel syndrome and more particularly, irritation to the right median nerve. I think it is likely that all these injuries were caused by ... [Nell Gray Fashions'] negligence."

48 The learned Judge then noted that the cause of the respondent's shoulder and neck injury was not as clear-cut. He concluded, at [214]:

"While I am confident that the [respondent's] hand, wrist and lower arm injuries and symptoms were caused by the negligence of Nell Gray Fashions I am not as definite on the question of causation of the [respondent's] shoulder and neck injuries and symptoms. It is difficult to predict how this issue would have been decided at any notional trial. It may have gone either way. On the state of the evidence called in the trial before me I cannot determine this issue beyond that."

The learned Judge's findings as to the value of the respondent's lost opportunity to sue Nell Gray Fashions

49 The learned Judge summarised, at [216], his findings in relation to the respondent's lost opportunity of suing Nell Gray Fashions, as follows:

"(a) the plaintiff had a reasonable chance of succeeding before the Review Officer in establishing a degree of disability of not less than 16 per cent;

(b) the plaintiff's claim against her former employer was not statute barred;

(c) the plaintiff had a good chance of establishing negligence as against her former employer;

(d) the plaintiff had a good chance of establishing that her former employer's negligence caused the injuries to her right hand, wrist and lower arm;

(e) it is difficult to predict on the evidence before me whether or not the plaintiff's injuries to her shoulder and neck were caused by the negligence of her former employer. The matter may have been decided either way."

50 The learned Judge said, at [218], that it was necessary for him to determine the value of the respondent's lost opportunity to sue Nell Gray Fashions against the background of those provisions of the WCR Act which capped the common law damages which could be awarded to a plaintiff where the degree of disability was between 16 and 29 per cent. His Honour referred to s 93F(1) of the WCR Act which, at the relevant time, was in these terms:

"(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."

"What a court must do in assessing a plaintiff's damages is to arrive at a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded. I am only allowed to award the maximum, that is amount A, in a most extreme case of disability of less than 30 per cent in degree. Amount A, if the trial had occurred sometime in the second half of 2002 was $274,278. From any amount of damages which the court assesses, the amount of workers' compensation already paid to the plaintiff must be deducted from the amount of the judgment: s 92(b) of the WCR Act. ... Counsel informed me on 3 March 2005 that the combined amount of weekly payments and statutory allowances was in fact $141,795.15. Accordingly, the maximum amount that the plaintiff could have been awarded at trial assuming that all issues had been decided in her favour was the difference between Amount A and her workers' compensation payments which amounts to $132,482.85."

52 The learned Judge valued the respondent's lost opportunity of suing Nell Gray Fashions at $71,113.85. His reasoning, at [229] - [234], was as follows:

" ... In my opinion, had all issues been determined in the plaintiff's favour at the notional trial, the trial Judge would have found that the plaintiff had sustained significant past economic loss and a total destruction of her future earning capacity. I am also of the opinion that the trial Judge would have found that the injuries had substantially and adversely affected the plaintiff's life in general.

... In my opinion, had all issues been determined in favour of the plaintiff, it is likely that a court would have decided that the plaintiff's case was one which could be fairly categorised as a most extreme case of disability of less than 30 per cent in degree. Taking the plaintiff's case as a whole, it seems to me that her working life has been devastated and that her enjoyment of life has been considerably diminished. The plaintiff appeared to me to be a person who enjoyed her work and had a full and active life at home. Her ability to work has been lost and she is unable to pursue the things which made her life worthwhile.

It follows from what I have said that if all issues had been determined in favour of the plaintiff the maximum amount of damages that she would have recovered would have been $132,482.85 being Amount A less her workers' compensation payments.

However, the plaintiff was by no means certain to have obtained a judgment against her former employer in the sum of $132,482.85. Whilst I think that there is a reasonable prospect that she would have satisfied a Review Officer that her disability was 16 per cent or more I do not think it can be said that that certainly would have happened. Further, on the evidence before me, I cannot say with any degree of certainty at all that her shoulder and neck injuries were attributable to the former employer's negligence. Both of these matters were important aspects of the plaintiff's case. If she had not succeeded before a Review Officer she would have not recovered any damages from her former employer. If a court found that the shoulder and neck injuries were not attributable to her former employer's negligence, her damages would have been substantially reduced. I think I should also take into account that the matter may have settled. This is a case in which a prudently advised plaintiff may well have settled taking into account the risks that she faced both before a Review Officer and then at any trial.

Although the plaintiff's case was not without its problems and risks, I do not think that it could be described as hopeless, indeed, in my view she had a reasonable case against her former employer. In all the circumstances of this case, and doing the best I can to estimate the value of the chance lost to the plaintiff by the second defendant's negligence, I conclude that the value of the chance lost to the plaintiff is $86,113.85 being 65 per cent of the maximum amount the plaintiff would have recovered had her action against her former employer been completely successful.

On 3 March 2005 counsel informed me that in addition to weekly payments and statutory allowances the plaintiff received another payment being $15,000. I was told that this payment was made to the plaintiff after her action had become statute barred. Both counsel told me it was appropriate to deduct this from the $86,113.85. Accordingly, the value of the plaintiff's lost chance is $71,113.85."

53 The appellant's grounds of appeal (as amended) are these:

"1. (a) The learned trial Judge was wrong in law in firstly recognising that the finding of the Medical Assessment Panel dated 15 January 1997 was binding on him pursuant to Section 145E(5) [of the WCR Act] and then determining the issue of the Respondent's (Plaintiff's) disability at a different and higher level.

(b) Further, the learned trial Judge erred in finding that the Medical Assessment Panel had determined part only of the Respondent's disability such finding not being open as a matter of law or of fact.

The question posed to the Medical Assessment Panel was 'what is the nature and extent of the worker's disability?'

The answer was inter alia '... [the respondent] has suffered a permanent loss of the efficient use of the right arm at or about the right elbow equating to 10 per cent.'

In those circumstances there was no basis in law or in fact for construing the answer to mean the Medical Assessment Panel had dealt only with one aspect of disability in the light of the question posed.

(c) Further, that finding in the absence of recision [sic] or variation pursuant to Section 145F means that the Respondent (Plaintiff) would not have received a determination of disability of not less than 16% and would not thereby have been entitled to an award of damages at common law.

(d) Further, and in any event, the Respondent pleaded in paragraph 16.5 of the Statement of Claim that the said determination of the Medical Assessment Panel was binding on the Review Officer, which was admitted by the Appellant (Second Defendant). In the premises the learned trial Judge could not find that the Respondent could reasonably have obtained an assessment of not less than 16%.

(e) Further, it was common cause at trial that the trial Judge was bound by the said determination pursuant to the provisions of Section 145E(5) of [the WCR Act] [181].

(f) Further, the Respondent lead [sic] no evidence at trial to show or suggest that a variation of the opinion of the Medical Assessment Panel could have been likely on the balance of probabilities, such as to show or suggest any negligence on the part of the Appellant. Rather the evidence lead [sic] was to a contrary effect namely that the Respondent would have been unable to demonstrate a level of disability of not less than 16%.

2. The decision by the learned trial Judge to aggregate aspects of permanent disability in the one limb so as to find a total disability of not less than 16% is wrong in law and in fact.

The evidence of disability was that the Respondent suffered disability in her right wrist, forearm and right shoulder: The evidence was that the assessments at the material time were:

Dr Home 10% below elbow and that the shoulder injury was not work related;

Mr Jefferies 10% of the right shoulder, including all wrist and arm disabilities;

Dr Hayes 10% loss of effective use of the dominant right hand and forearm for the next 5 years, 10% disability of right shoulder which was not work related.

There was therefore no reasonable prospect of the Respondent obtaining an assessment of not less than 16%.

3. The finding by the learned trial Judge that the Respondent's claim against her employer for damages was not statute barred until 18 November 2000 which date was based upon the date when the Respondent ceased work with her employer is wrong as a matter of fact and of law.

(a) the date of ceasing to work is irrelevant to the issue to be determined by a Court. The proper date for determination is the date upon which the Respondent suffered damage due to the negligence or breach of duty of her employer or at least when she became aware of that damage. The decision to cease work is not the relevant date of the injury by accident which is relevant to the determination.

(b) The Respondent's evidence was that she first suffered symptoms in respect of her wrist in or about October/November of 1993. The Appellant did not commence to act for the Respondent until 1 July 2000.

(c) Further in a case where there is a gradual onset of symptoms caused by repetitive use, in this case of the arm, the question that may arise is the extent to which there was an initial disability and to what extent that disability was aggravated over the ensuing period of work. That assessment is material to the question of what percentage disability may have fallen within the relevant limitation period.

(d) The finding that the cause of action arose on or about 18 November 1994 when the pain arose in the Respondent's (Plaintiff's) right wrist due to nerve irritation, which pain was caused by ironing, that finding being based on the evidence of Dr Hayes is wrong [153] - [154]. That finding is at odds with his Honour's earlier observation at [75] - [76] that Dr Hayes did not give evidence as to the cause of the nerve irritation but rather in his Honour's judgment 'I think it is likely, had he been asked, that he would have referred to the plaintiff's repetitive ironing activities as being a ready explanation for the irritation.'

4. The learned trial Judge is wrong in law and in fact in that he has made speculative assessments of critical issues without there being any proper evidentiary basis for so doing:

(a) At [76] His Honour infers that Dr Hayes would have given the Respondent's repetitive ironing activities as the cause for her traction neuropathy. There was no evidence upon which such a finding could have been made. Dr Hayes' evidence was that the carpal tunnel syndrome was work related [74] but he did not give a cause for the traction neuropathy [75]. It is wrong in those circumstances for the said inference to be made.

(b) His Honour concluded [108] that Mr Jefferies' assessment of a 10% disability of the right arm did not include any assessment of the disability of the right arm caused by the carpal tunnel syndrome and neural irritation. However Mr Jefferies' evidence [107] was 'that the figure of 10% included not only the shoulder but also the neck, arm, wrist and hand.'

(c) At [183] His Honour formed the view that the Medical Assessment Panel most likely assessed the level of permanent disability with respect to the Plaintiff's shoulder and neck and not a hand, wrist and lower arm. There was no reasonable basis for so concluding as particularised herein in Ground 1(b).

(d) At [184] His Honour has concluded that the Review Officer may have made further enquiries to shed light on the Medical Assessment Panel's determination. In the circumstances that is speculative and in any event overlooks the fact that the determination of the Medical Assessment Panel is binding on the Review Officer.

5. The learned trial Judge's assessment of damage on the basis that the Respondent had suffered a 65% loss of chance of succeeding in the common law action was grossly excessive in the circumstances given the following factors:

(a) The risks in respect of liability, particularly:

(i) the evidence was that the cause of the carpal tunnel injury was work related however the carpal tunnel problem was relieved by appropriate surgery;

(ii) the cause of the neuropathy in the wrist was unknown and the issue of whether it was caused by the employer's negligence remained a very live issue;

(iii) the cause of the Respondent's shoulder symptoms which came on six months after she left employment was unknown and both Dr Home and Dr Hayes said it was not work related. In those circumstances prospects of succeeding on liability against the employer were slim. Further, as a compounding factor to that, if the shoulder symptoms and traction neuropathy were not work related then they were a novus actus interveniens which meant that a significant cause of the Respondent being unable to work was unrelated to the negligence of her employer and not recoverable in a common law action.

(b) The Medical Assessment Panel's determination of disability was 10%. There was no evidence available that a greater assessment could be obtained. The evidence at trial did not demonstrate that there was a reasonable prospect of getting a higher determination.

(c) It fails to acknowledge risks that the Limitation Act properly considered may have resulted in a finding that a significant part of the Respondent's wrist injuries occurred more than six years prior to her instructing the Appellant which could have meant her not achieving the entirety of an award of damages in respect of the carpal tunnel syndrome.

6. (a) The learned trial Judge's assessment of damages based on the Respondent being an example of a most extreme case of disability of less than 30% is wrong. The Medical Assessment Panel's assessment and all other evidence indicated that the Respondent was at best 16-17% disabled and there was no basis for holding that she should have received an award based on a most extreme case.

(b) Further, the methodology of assessment of damages is wrong. The calculation of the total common law damages having been made, the Court should then apply the percentage loss of chance to that figure (in this case 65%) from which should then be deducted the whole of the workers' compensation benefits received by the Respondent. In this case the calculation should be:

$274,278 (amount A) x 65% = $178,280.70

Workers' compensation $141,795.15 + $15,000 = $156,795.15.

Calculation-becomes $178,280.70 - $156,795.15 = $21,485.55."

The respondent's further amended notice of contention

54 The respondent filed a further amended notice of contention, as follows:

"The respondent contends that the learned Trial Judge's decision be varied on the following grounds:

1. The Trial Judge erred in law in deducting $15,000 being a payment received by the Respondent from the workers' compensation insurer after her common law claim became statute barred from $86,113.85. The Trial Judge ought to have deducted this amount from Amount A to arrive at a notional assessment of damages against the Respondent's employer, before calculating the value of the lost chance.

The Respondent contends that the Trial Judge's order awarding the Respondent damages in the sum of $71,113.85, should be varied to an order allowing the Respondent damages in the amount of $76,363.85, being calculated as follows:

Amount A $ 274,278.00

Minus workers' compensation

already deducted $ 141,795.15

Total $ 132,482.85

Minus further workers' compensation

to be deducted $ 15,000.00

Total of notional damages $ 117,482.85

65% of $117,482.85 = $ 76,363.85

2. The trial Judge erred in not making a finding that if the Medical Assessment Panel's determination was in effect a determination that the nature of the Respondent's disability was a rotator cuff injury and that its extent included the arm, wrist and hand, there was a chance that the Respondent or her solicitors would have applied for a review of the Medical Assessment Panel's determination and would have adduced further evidence indicating that the nature and extent of the Respondent's disability went further and included carpal tunnel syndrome and a nerve irritation injury.

3. The trial Judge erred in not making a finding that there was a chance that the Respondent or her solicitors would have led additional evidence at the notional trial to show what evidence had been placed before the Medical Assessment Panel and that its determination was in effect only a determination of the Respondent's rotator cuff injury in the shoulder and not of her carpal tunnel injury and nerve irritation injury in the hand, wrist and lower arm."

55 Ground 1 of the further amended notice of contention is, in form and substance, a ground of cross-appeal rather than a ground of contention. The appellant did not, however, take this point, and did not object to the ground. It appears that the learned Judge accounted for the $15,000 referred to in ground 1 of the further amended notice of contention in accordance with a joint submission made by counsel for the parties. See [234] of his Honour's reasons. The appellant did not contend before this Court that the joint submission to his Honour precluded the respondent from submitting to this Court that the $15,000 should have been accounted for differently. Ground 6(b) of the appeal raises similar issues to ground 1 of the further amended notice of contention. The parties argued the appeal on the basis that, if ground 1 of the further amended notice of contention is correct, this Court should vary the amount of damages awarded by his Honour.

56 On 13 November 1996 the Textile, Clothing & Footwear Union, on behalf of the respondent, lodged with the Directorate of Conciliation and Review a Form 1 under the WCR Act. By this document, the respondent applied to refer for conciliation a dispute she had with Nell Gray Fashions. The dispute was described in an attachment to the Form 1, as follows:

"On the 18th November 1994 [the respondent] was diagnosed with Carpel [sic] Tunnel Syndrome and a subsequent workers compensation claim was accepted.

[The respondent] had been back at work on restricted hours - approximately 20 hours per week undertaking light duties on the factory floor. [The respondent] was a full time worker.

On the 12th August 1996, [the respondent] visited her GP who issued a Progress Certificate stating that [the respondent] was totally unfit until 16th August 1996. On the 16th August [the respondent] again visited her GP who issued another certificate totally unfit [sic] but did not stipulate the days/weeks she was unfit.

Her employer, Nell Gray Fashions, dismissed [the respondent].

Since the 16th August [the respondent] has been issued certificates by her GP stating that she is totally unfit.

MMI Insurance have not [sic] refused to pay the additional hours to [the respondent] due to reports by Dr Alan Home and Dr Patrick Hanrahan (attached) who both state that [the respondent] is fit to undertake part time clerical work and that symptoms in relation to her shoulder are not related to the workplace.

Attached is a report from a Dr Edelman who she attended on 25th September 1996.

[The respondent] is seeking a review of her weekly payments and any outstanding medical expenses."

57 By letter dated 9 December 1996, an officer of the Directorate informed the respondent that she was required to attend before a medical assessment panel for examination on 8 January 1997. The letter also stated that the question which the review officer had asked of the medical assessment panel was:

"What is the nature and extent of the worker's disability?"

58 By letter dated 10 December 1996, an officer of the Directorate sent to the respondent a list of the medical reports and other documents given by the Directorate to the medical assessment panel. The list itemised various medical reports, rehabilitation reports and medical certificates. The reports bear dates between 6 April 1995 and 23 October 1996. They included reports from Dr Chew, Dr Hayes, Mr Allen and Dr Home. There were no reports from Mr Jeffries or Dr Crocker.

59 The respondent was examined by the medical assessment panel on 8 January 1997, and the determination and reasons of the panel were set out in a memorandum dated 15 January 1997 to the Director of Conciliation and Review, as follows:

"The Medical Assessment Panel determines as follows:

Q: What is the nature and extent of the worker's disability?

...

The [respondent] suffers from a chronic rotator cuff syndrome compounded by a mechanical soft tissue problem. There is an underlying and pre-existing condition in the right shoulder which has been significantly aggravated by the course of her employment specifically the repetitive nature of her ironing duties. [The respondent] who [sic] has suffered a permanent loss of the efficient use of the right arm at or above the right elbow equating to 10 per cent.

The Panel is also of the opinion that the patient has the capacity for full-time alternative employment such as one: Shop Assistant in the appropriate areas making use of her ethnicity, two: Service Station Console Operator, three: Cinema Ticket Sales, four: Supermarket Check-Out Operator without packing, five: Nursery work working at bench height. There are restrictions on her types of employment and these should include avoiding working over head and limiting lifting to ten kilos or less."

The determination and reasons of the panel were required, by s 145E(3) of the WCR Act, to be given in writing signed by the Chairman in a form approved by the Director, and to be given to the Director within seven days after the day on which the determination was made.

60 At the relevant time, s 145E(5) of the WCR Act provided, in relation to a determination of a medical assessment panel:

"Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."

"(1) If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the panel and would be likely to affect the determination of the question if it were to be reconsidered by the panel the Director may again refer the question to the panel.

(2) The panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance.

(3) The panel may vary its previous determination or rescind it and make a new determination.

(4) Sections 145D and 145E and this section also apply in relation to a determination under this section."

61 In my opinion, the scope of the question referred by the review officer to the medical assessment panel, and the scope of the panel's determination, should be resolved in the context of the dispute at that time between the respondent and Nell Gray Fashions and the legislative framework relating to the referral and determination of that question.

62 At the relevant time, s 84ZH of the WCR Act provided:

"(1) If required to do so under Part VII, a review officer is to refer a question as to the nature or extent of a disability, or as to whether a disability is permanent or temporary, for determination by a medical assessment panel.

(2) Without limiting subsection (1), that subsection applies to questions as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss."

The requirement to refer a question (within s 84ZH(1)) arises under s 145A(1) of the WCR Act (which is in Pt VII). At the relevant time, s 145A(1) provided, relevantly:

"A question is to be referred for determination by a medical assessment panel under section ...84ZH ... if and ...only if -

(a) there is a conflict of medical opinion on the question between -

(i) a medical practitioner engaged by the worker; and

(ii) a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them; and

(b) one of the parties wishes the proceedings to continue."

63 The question to be formulated under s 84ZH(1) is not fixed by that subsection. It involves an identification by the review officer of the conflict of medical opinion. The question, as formulated, is required, however, to be a question "as to the nature or extent of a disability, or as to whether a disability is permanent or temporary".

64 In the present case, the question formulated by the review officer under s 84ZH(1) was as to "the nature and extent of [the respondent's] disability". The question did not seek a determination as to whether her disability was permanent or temporary.

65 In my opinion, the question referred to the medical assessment panel sought a determination as to the nature and extent of the respondent's disability in her right shoulder and neck. It did not seek a determination as to the nature and extent of her disability in her right hand, wrist and lower arm. I am of that opinion for three reasons. First, at the relevant time Nell Gray Fashions did not dispute that the respondent was suffering from carpal tunnel syndrome or that she was entitled to workers' compensation as a result of the injury to her right hand, wrist and lower arm. Secondly, at the relevant time there was a dispute between Nell Gray Fashions and the respondent relating to her complaint concerning her right shoulder and neck, including whether those symptoms arose from a work-related injury and, if so, whether and to what extent she was fit to work. Thirdly, at the relevant time there was a conflict of medical opinion, within s 145A(1)(a), in relation to the respondent's right shoulder and neck, but not in relation to her right hand, wrist and lower arm.

66 In my opinion, the medical assessment panel determined the question referred to it; namely, the nature and extent of the respondent's disability in her right shoulder and neck, but it also determined a question not referred to it; namely, whether the disability was permanent or temporary. The panel determined the question referred to it, to the extent it found that:

"The [respondent] suffers from a chronic rotator cuff syndrome compounded by a mechanical soft tissue problem. There is an underlying and pre-existing condition in the right shoulder which has been significantly aggravated by the course of her employment, specifically the repetitive nature of her ironing duties."

The panel determined a question not referred to it, to the extent it found that:

"The [respondent] ... has suffered a permanent loss of the efficient use of the right arm at or above the right elbow equating to 10 per cent." [My emphasis]

67 The jurisdiction of a medical assessment panel in a reference under s 84ZH is confined to the question specified in the reference. See Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395 at 400 - 402. In the present case, to the extent the panel determined the question referred to it, the panel acted within power, and that part of its determination is "conclusive evidence as to the matters determined", within s 145E(5). But to the extent the panel determined a question that was not referred to it, the panel acted beyond power, and that part of its determination is not "conclusive evidence as to the matters determined", within s 145E(5).

68 In my opinion, in the present case, to the extent the medical assessment panel determined the question referred to it, that part of the determination is clearly distinct and severable from the remainder of the determination. But the purported determination that the respondent had suffered a "permanent" loss is not clearly distinct and severable from the remainder of that part of the determination; namely, that she had suffered a permanent loss of the "efficient use of the right arm at or above the right elbow equating to 10 per cent". See Ex parte Ansett Australia Ltd at 401 - 402.

69 The privative clause in s 145E(5) provides, relevantly, that, unless rescinded under s 145F, a determination of a medical assessment panel is "final and binding" on persons and entities, and in circumstances, as follows:

"... on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant ..."

In Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996, Murray J (with whom Franklyn and Owen JJ agreed) said, at 6, in relation to s 145E(5):

"It is clear, I think, that by the terms of that privative provision the finality of a determination is only secured in a Court or Tribunal hearing a matter in which the subject matter of the determination is substantively relevant. That view is, to my mind, confirmed by the provision that the determination provides conclusive evidence of the facts determined, so that one could certainly not go behind its terms in relation to any proceeding under the Act in which the terms of the determination were relevant."

In United Construction Pty Ltd v Maketic [2003] WASCA 138, Anderson, Parker and Templeman JJ held, at [41], that a determination of a panel is final and binding on any Court in which the determination is relevant, but it is necessary to have regard to the precise question which is validly determined by the panel and for that question to be relevant in the proceedings in the Court.

70 It is unnecessary, in this appeal, to decide whether the privative clause in s 145E(5) is final and binding on a worker and his or her employer only in relation to present or future claims or proceedings as between the worker and his or her employer in which the determination of the panel is relevant to the claim or a matter in issue in the proceeding. Further, it is unnecessary to decide whether the determination of the panel is final and binding on a Court or Tribunal only where the Court or Tribunal is hearing a claim or proceeding as between a worker and his or her employer in which the determination is relevant to the claim or a matter in issue in the proceeding. Finally, in this context, it is unnecessary to decide whether the privative clause does not apply to a claim or proceeding by a worker against his or her former solicitor in which the worker claims damages from the solicitor for alleged negligence in connection with the prosecution of a cause of action against his or her employer, or on any Court or Tribunal which is hearing any such claim or proceeding. It is unnecessary to determine those questions in consequence of my findings as to the scope of the question referred by the review officer to the panel and the manner in which the panel determined that question.

71 The respondent, in par 16.5 of her statement of claim against the appellant, alleged that, in breach of the contractual and tortious duties owed to her, the appellant was negligent in that it:

"Failed to direct the review officer hearing the WorkCover proceedings to the determination by the Medical Assessment Panel, dated 8 January 1997, which was binding upon the review officer pursuant to section 145E(5) of the [WCR Act]; ..."

In my opinion, that allegation of negligence against the appellant did not preclude the learned Judge from finding that the respondent could reasonably have obtained an assessment of not less than 16 per cent. The allegation of negligence did not constitute or include an allegation (or an admission or concession) by the respondent as to the scope of the panel's determination or the prospects of the determination being varied or rescinded under s 145F.

72 Similarly, the fact that it was "common cause" at the trial before the learned Judge that his Honour was bound by the determination of the medical assessment panel, by virtue of s 145E(5) (see his Honour's reasons at [181]), did not preclude his Honour from making a finding as to the scope of the panel's determination or as to the prospects of the determination being varied or rescinded under s 145F.

(a) the scope of the question referred by the review officer to the panel; and

(b) the manner in which the panel determined that question,

it was unnecessary for the respondent to lead evidence at the trial to support a submission that there were reasonable prospects of satisfying the Director, in terms of s 145F(1), that there was "new evidence" which required the Director to again refer "the question" to the panel. In any event, the respondent did lead evidence to that effect at trial. In particular, there was the evidence (including the reports) of Mr Jeffries in relation to the respondent's right shoulder and neck injury, and the evidence of Dr Hayes and Dr Home in relation to the respondent's right hand, wrist and lower arm injury, to the extent that such evidence (including the reports) was obtained after the panel's determination and accepted by the learned Judge.

74 In my opinion, ground 1 of the grounds of appeal is without merit.

75 At the relevant time, Div 2 of Pt IV of the WCR Act comprised s 93A to s 93G. By s 93B(1), Div 2 applied to the awarding of damages against a worker's employer, independently of the WCR Act, in respect of a "disability" suffered by a worker, if:

(a) the disability was caused by the negligence or other tort of the worker's employer; and

(b) compensation had been paid or was payable in respect of the disability under the WCR Act, or would have been paid or payable but for s 22 (which related to a disability attributable to the worker's serious and wilful misconduct).

76 At the relevant time, s 93D(1) of the WCR Act provided:

"'relevant level', in relation to a question as to the degree of disability of the worker, means -

(a) ... ; or

(b) if the question arises for the purposes of s 93E(4), a degree of disability of 16%."

At the relevant time, s 93E(3)(b) of the WCR Act provided that damages could only be awarded if the worker had a "significant disability" and elected, in the prescribed manner, to retain the right to seek damages and the election was registered in accordance with the regulations. At the relevant time, by s 93E(4), for the purposes of s 93E(3)(b), the worker had a "significant disability" if it was agreed or determined that the degree of disability was not less than 16 per cent and that agreement or determination was recorded in accordance with the regulations.

77 At the relevant time, s 93D(5) of the WCR Act provided that if the worker and the employer could not agree on whether the degree of disability was not less than the relevant level, the worker might, subject to s 93D(6), refer the question to the Director. At the relevant time, s 93D(6) provided that a question could only be referred under s 93D(5) if the worker produced to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability was not less than the relevant level.

78 At the relevant time, s 93D(2) of the WCR Act provided:

"For the purposes of section 93E, the degree of disability of the worker is to be assessed -

(a) so far as Schedule 2 provides for such a disability, as a percentage equal to -

(i) if only one item of that Schedule applies to the disability, the percentage of the prescribed amount provided for by that item, as read with section 25; or

(ii) if 2 or more items of that Schedule apply to the disability, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;

(b) to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

(c) to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs."

At the relevant time, the term "prescribed amount" was the amount specified or determined in accordance with the definition of that term in s 5(1).

79 At the relevant time, s 25 of the WCR Act provided:

"For the purpose of the table set out in Schedule 2, 'loss of' includes -

(a) 'permanent loss of the use of'; and

(b) 'permanent loss of the efficient use of', but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount."

80 At the relevant time, Sch 2 provided, relevantly:

Ratio which the sum payable herein bears to the prescribed amount

81 At the relevant time, s 31(a) of the WCR Act provided that, in the application of the table set out in Sch 2, loss of arm included such loss resulting from injury to the shoulder.

82 The percentage ratio set out in column 2 opposite each item in Sch 2 relates to the percentage of the "prescribed amount" (as defined in s 5(1) of the WCR Act) which a worker may elect to accept, under s 24 or s 24A of the Act, as a "lump sum" payment for a compensable personal injury by accident, in lieu of weekly payments of compensation. Also see s 24B.

83 The term "disability" in s 93D and s 93E of the WCR Act bears its ordinary meaning, in the sense of "physical incapacity", and is not confined to its defined meaning in s 5. See Girrawheen Tavern v Joseph [2003] WASCA 244, where Wheeler J (with whom McKechnie J agreed) said, at [50] and [55]:

" ... where there is a condition which may be very serious, but which may result from a number of incidents, none of which on its own would result in a disability reaching the required threshold, the question arises as to whether the statute focuses on the incident giving rise to liability, or the condition of the worker, as being that which must reach the required threshold. If the appellant's submission is correct, it is possible for a worker to be totally disabled (in the ordinary and non-technical sense) and yet, because the disability results from the composite effect of a number of distinct injuries, to be unable to seek any common law damages. Particularly having regard to the basic principle of interpretation that there should occur no more far reaching effect on established rights than Parliament clearly intends (Hewitt v Benale Pty Ltd [2002] WASCA 163; [2002] ACLR 450 at [126] per Heenan J), it seems to me that this outcome is one which tells against the interpretation for which the appellant contends.

...

In my view authority in this Court, to the extent that it is relevant, and considerations of the purpose and structure of this Part of the Act, point to the conclusion that 'disability' in s 93D(5) is used in its ordinary, rather than in its defined, meaning. The determination of the 'degree of disability' looks simply to the condition of the worker. Once that condition reaches the required level of incapacity, damages may be awarded. Questions of causation will be issues to be raised and determined at trial, and may affect the quantum of any damages awarded. ..."

Also see Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998; United Construction at [42]; Casserly v Alcoa of Australia Ltd [2006] WASCA 150 at [26].

84 For the purposes of s 93D(2)(a) and s 93E(3), what is required to be measured is the permanent loss (which includes permanent loss of use and permanent loss of efficient use) of the relevant faculty or body part itemised in Sch 2. If the relevant permanent loss is loss of the efficient use of a faculty or body part, it is necessary to measure the percentage of the diminution of the full efficient use of that faculty or body part. For example, if a worker has permanently lost 50 per cent of the full efficient use of an arm below the elbow (item 14 in Sch 2), the worker's degree of disability is 40 per cent (being 50 per cent of the percentage ratio, namely, 80 per cent, set out under column 2 opposite item 14 in Sch 2).

85 A critical issue raised in ground 2 of the appeal is whether, in the circumstances of the present case, it was open to determine the respondent's degree of disability by:

(a) assessing under item 13 of Sch 2, the extent of the respondent's permanent loss of the efficient use of her right arm, at or above the elbow, arising from her shoulder and neck injury; and

(b) assessing under item 14 of Sch 2, the extent of the respondent's permanent loss of the efficient use of her right arm, below the elbow, arising from her right hand, wrist and lower arm injury (and from her shoulder and neck injury, to the extent she suffered disaesthetic symptoms below the elbow which were attributable to that injury),

and then aggregating the assessments. Similar issues have been considered by the High Court and the Court of Appeal of New South Wales in the context of workers' compensation legislation in New South Wales. It is useful to review those decisions before considering the decision of this Court in Casserly.

86 In K B Hutcherson, the respondent injured his back at work. The injury caused compression of nerve roots in his back, which resulted in pain in his legs both below the knee and at or above the knee. His claim for compensation under the Workers Compensation Act 1987 (NSW) included a claim for permanent impairment. Section 66 of the Act prescribed a maximum entitlement (in addition to any other compensation under the Act) of $85,200. Subject to this limit, s 66 further provided that a worker was entitled to receive compensation to the percentage of $85,200 set out in the Table of Compensation for Permanent Injuries in the Act for each loss mentioned in the Table. The Table included, as separate items of loss, "Loss of either leg at or above the knee" (75 per cent) and "Loss of either leg below the knee" (70 per cent). The Compensation Court of New South Wales awarded compensation for loss of efficient use of each leg both below the knee and also at or above the knee. The Court of Appeal, relevantly, dismissed the appellant's appeal. On appeal to the High Court, the decision of the Court of Appeal was reversed. Brennan, Deane, Dawson, Toohey and McHugh JJ said, at 56:

"In the end the question is a fairly straightforward one. The Table provides under the heading 'Leg injuries' for loss of either leg at or above the knee and loss of either leg below the knee. The points mentioned in the Table ('leg at or above the knee' and 'leg below the knee') identify, in relation to loss of use, the same maximum level of compensation as the loss by amputation at those points and require the same factors to be considered in the assessment of compensation, namely, the extent to which the entire limb below the uppermost point of affection is lost or its use is lost. No doubt, medical opinions may differ as to the degree of loss in any case where the use of a limb has been affected. But nothing in the Table or in the Act itself warrants making two assessments in the case of one leg."

87 In Baker v Crittenden, unreported; CA SCt of NSW; 17 July 1995, Mahoney JA considered the implications of the High Court's judgment in K B Hutcherson. His Honour said, at 1 - 2:

" ... As the High Court indicated in its joint judgment, the relevant statutory provisions provide for compensation in respect, inter alia, of two classes of cases: 'loss' of the relevant thing, eg, by amputation; and loss of the use or effective use of that thing. The difference between the construction adopted by the High Court and this Court led, or would have led, to awards of a different nature in respect of those two classes of cases. Upon the approach adopted by the relevant judges of this Court, where a worker had suffered loss of use of, eg, a leg above the knee and separately of the leg below the knee, there would be two separate awards of compensation. On one view of the rationale adopted by such judges, this would apply also in the case of a loss of the leg, eg, by amputation.

At the risk of over-simplification the construction adopted by the High Court was directed to the reconciliation of the result of the statutory provisions in each of these two classes of cases. Where there has been a simple loss of, eg, a leg above the knee by amputation, the High Court accepted that only one award of compensation is to be given: one sum is awarded where the amputation is at or above the knee and a different sum if the amputation is below the knee. But, whatever be the point at which the amputation took effect, one sum was to be awarded. The Court recognised, I think, that in the second class of case, loss of use alone, the factual position may be more complicated. Thus, the injury may, as part of the single effect of it, cause loss of use to the limb both above and below the knee. There may be the same degrees of loss or different degrees of loss at different places. But the position may be more complicated. The injury may do one kind of damage (and so cause one kind of loss of use) above the knee and another kind of damage (and so cause a different kind of loss) below the knee. And the degrees of loss above and below the knee respectively may be quite different. The view taken by judges of this Court was that there were, as it were, separate items of 'loss of use' and that these were to be compensated for separately. The result of this would be, as the cases demonstrated, that the overall compensation in amputation cases would be different from (ordinarily less than) compensation in loss of use cases.

The construction adopted by the High Court has, I believe, rejected that approach. ..."

"The thrust of the High Court's view lies, in my respectful opinion, in the words '... the extent to which the entire limb below the uppermost point of affection is lost or its use is lost'. It may perhaps, in special factual situations, be necessary to adapt or qualify this approach. There may be cases in which the losses at the 'above' and 'below' points are different, quite different. In such cases, it may be necessary to consider whether the losses, though caused at the one time, have been caused by a single 'injury' or 'loss'; it may be necessary to consider whether, if they have, they are yet losses which fall within the precise terms of the Table. These are matters which may require attention in appropriate cases."

88 In Australian Specialised Meat Products Pty Ltd v Turner (1995) 11 NSWCCR 614, the respondent cut her left wrist in a work-related accident. Priestley JA, who dissented in the result of the appeal, explored an issue arising from the decision in K B Hutcherson, namely, the proper approach where a single injury causes a loss of efficient use of an arm at or above the elbow and also below the elbow. His Honour said, at 626 - 627:

"Counsel was asked what the result would be in the light of Hutcherson on the basis of Dr Ormandy's opinion there had been ten per cent loss of efficient use of the left forearm as well as ten per cent of the hand, and answered that the result would be that the worker should only get ten per cent for the left arm below the elbow, and nothing for the left hand.

I do not think that that can be the consequence of the High Court's decision in Hutcherson, assuming in the appellant's favour that the essential reasoning of the case applies to an arm below the elbow and the hand of that arm in the same way as to an arm above the elbow and the arm below that elbow.

Taking the present case as an example, and adapting the relevant words from the High Court decision in Hutcherson to the facts, the question that should have been asked of Dr Ormandy was the extent of loss of use of the entire arm below the elbow and including the hand, all below the point of the arm below the elbow where the arm was affected by the injury. The court does not know what answer Dr Ormandy would have given to that question; it would seem however, that if he considered there was a ten per cent loss of use of the arm below the elbow and above the hand, and ten per cent loss of use of the hand, it would not necessarily follow that his opinion of the loss of use of the entire limb from the point where the arm below the elbow was affected down to the tips of the fingers, would also be ten per cent."

89 In Casserly, the appellant was injured in the course of his employment. His work required the use of a large jack hammer on a spring balance with his arms turned out and flexed at the elbows. He suffered work-related injuries to his left elbow joint, his left wrist and hand and his right wrist and hand. A medical practitioner, Dr Kennedy, gave evidence that the consequences of those injuries, for the purposes of s 93E of the WCR Act, were these:

(a) pursuant to item 13 of Sch 2, a permanent loss of efficient use of his left arm at and above the elbow joint of 16 per cent;

(b) pursuant to item 14 of Sch 2, a permanent loss of efficient use of his left arm below the elbow joint of 22 per cent; and

(c) pursuant to item 14 of Sch 2, a permanent loss of efficient use of his right arm below the elbow joint of 14 per cent.

90 The Compensation Magistrate decided that the assessments in respect of the appellant's left arm under items 13 and 14 could not be aggregated for the purposes of s 93E. This Court allowed an appeal from that decision and decided that those assessments could be aggregated. Steytler P (with whom Wheeler and Pullin JJA agreed) said, at [22] - [24]:

"In my opinion, aggregation is appropriate in a case of this kind. As can be seen from Dr Kennedy's report, the injuries to the appellant's left elbow joint, and the separate injuries to the left wrist joint and hand, led to different consequences. The former led to a significant reduction in the strength of flexion of the appellant's forearm and, to a lesser extent, extension, supination and pronation of the forearm at the elbow joint against resistance. The latter led to a significant reduction in the strength of dorsiflexion and palmer flexion of the hand at the wrist joint and to a decrease in its grip strength. It also led to a reduction in the strength of the intrinsic muscle supplied by the median nerve in the left hand and in sensation in the distribution of the median nerve in that hand. This was consequently a case in which each of Items 13 and 14 was properly applicable, with the result that s 93D(2)(ii) required that the percentages in question be aggregated for the purposes of s 93E.

This case is, in this respect, unlike Hutcherson. Because loss of the efficient use of a limb was equated, under the New South Wales Act, with loss of the limb itself, and because the percentage ascribed to the loss of a limb above the knee necessarily comprehended loss of that same limb below the knee, as was the case with a loss of the efficient use of the whole of the limb through a single back injury, the Court, in that case, inferred that there could be no aggregation. In my opinion, that is not the position in a case such as this, in which there are separate and distinct consequences for each part of the limb as a result of separate injuries to those parts and in which the injuries to the upper part of the limb seemingly did not result in the loss of efficient use of the lower part (the wrist and hand) (cp Baker v Crittenden, unreported; FCt SCt NSW; 17 July 1995).

I should add that, even if I should be wrong in my conclusion that aggregation is permitted in a case of this kind, it seems to me to be plain enough from Dr Kennedy's report that he considered that the relevant level of disability was more than 30 per cent. The report seems to me to indicate that, had he not attempted to separate out the components for the upper and lower arm (as he had been asked to do), he would have arrived at a degree of disability of 32 per cent in respect of the left arm alone (16 per cent of 90 per cent (14.4 per cent) plus 22 per cent of 80 per cent (17.6 per cent)."

91 In the present case, Dr Hayes was of the opinion that the respondent had suffered a 10 per cent loss of the effective use of her "right hand and forearm for the next five years" as a result of a compressive and irritative neuropathy in the right median nerve at the wrist. This was work-related. He was also of the opinion that the respondent had a 10 per cent permanent disability in her right shoulder as a result of rotator cuff tendonitis with impingement. This was not work-related. See Dr Hayes' report dated 25 September 1996.

92 Mr Jeffries gave evidence at trial that the respondent had a permanent residual disability of her right shoulder, which he assessed as a 10 per cent disability, as a result of rotator cuff tendonitis. The 10 per cent disability related to all symptoms associated with her right shoulder condition. The learned Judge made findings in relation to Mr Jeffries' assessment of the respondent's permanent disability, at [195], as follows:

"I am mindful of the evidence of Mr Jeffries which I have already referred to in which he assesses the plaintiff's permanent disability associated with her shoulder and neck injury to 10 per cent including the effects of that injury on her hand. It might from this be argued that Mr Jeffries has taken into account all the injuries suffered by the plaintiff including the injuries to her hand, wrist and forearm. I must say that I did not interpret Mr Jeffries' evidence in this way. My interpretation of Mr Jeffries' evidence was that he was pointing out that the injuries to the shoulder and neck had an effect on the hand. He was not purporting to assess the plaintiff's disability to her hand, wrist and forearm. He preferred to leave that to other medical practitioners."

His Honour reiterated, at [197], his finding that Mr Jeffries' evidence as to the respondent's 10 per cent disability "relates primarily to shoulder and neck although [it] takes into account the effect that those injuries have on the plaintiff's hand". Mr Jeffries' evidence at trial was that the respondent's rotator cuff tendonitis was work-related.

93 Dr Home was of the opinion that the respondent's right hand, wrist and lower arm injury was work-related, but her shoulder and neck injury was not work-related. He assessed her "level of permanent residual disability in relation to her carpal tunnel complaint" as 10 per cent of "the full and efficient use of the right upper limb below the elbow". The learned Judge said, at [198], in relation to Dr Home's opinion:

" ... whilst it is difficult to understand how there could be disability of the use of the right upper limb below the elbow, it seems to me from the context of his report that his assessment is to the right limb below the elbow. I do not think that he purported to make an assessment of the plaintiff's total disability from her shoulder downwards."

94 In my opinion, the findings of the learned Judge in relation to the evidence of Mr Jeffries and Dr Home were not only open to him, but were correct.

95 If the respondent's shoulder and neck injury was not work-related, then, on the evidence, she would have had no prospect of establishing before a review officer that her level of disability was at least 16 per cent. If, however, the respondent's shoulder and neck injury was work-related, it is necessary to determine how the provisions of Sch 2 would have applied in relation to her shoulder and neck injury and her hand, wrist and arm injury.

96 In Casserly, Steytler P distinguished K B Hutcherson on the ground that loss of the efficient use of a limb was equated, under the New South Wales legislation, with loss of the limb itself, and also on the ground that, under the New South Wales legislation, the percentage ascribed to the loss of a limb above the knee necessarily comprehended loss of the efficient use of the whole of the limb through a single injury. By contrast, in Casserly, there were, on the evidence, separate and distinct consequences for each part of the worker's limb as a result of separate injuries to those parts, and the injury to each part of the limb did not produce any loss of efficient use in the other part of that limb.

97 In my opinion, the concept of "loss" in the New South Wales legislation considered in K B Hutcherson is similar to the concept of "loss" under the WCR Act. By s 65(1) of the Workers' Compensation Act 1987 (NSW), "loss", in relation to a thing, was defined to mean:

(b) the permanent loss of the use, or of the efficient use, of that thing.

As I have mentioned, by s 25 of the WCR Act, for the purpose of the table set out in Sch 2, "loss of" includes, relevantly, "permanent loss of the use of" and "permanent loss of the efficient use of". In any event, a comparison of the legislative provisions under consideration in K B Hutcherson with those of the WCR Act is of limited utility and, potentially, distracting. The circumstances in which aggregation is permissible under the WCR Act must be resolved on a proper construction of that Act.

98 In my opinion, Casserly is authority for the proposition that where:

(a) a worker suffers multiple injuries to different parts of an upper extremity;

(b) each injury causes separate and distinct consequences for a particular part of that extremity; and

(c) the separate and distinct consequences for each part involve a loss of efficient use of that part,

the degree of disability caused by each injury is to be assessed under the applicable item in Sch 2, and the individual assessments are to be aggregated for the purposes of s 93D(2)(a) and s 93E(3) of the WCR Act. Casserly is a very recent decision of this Court. Judgment was delivered after this appeal was argued. The proposition for which Casserly is authority should be applied. It is not appropriate, in this appeal, to reconsider the reasoning or decision in that case.

99 In the present case, it was reasonably open to the learned Judge to find, as he did at [196], that it would have been correct for the review officer to make two separate assessments under two items in Sch 2 and then aggregate them. Dr Home was of the opinion that the respondent's right hand, wrist and lower arm injury had resulted in a permanent loss of 10 per cent of the full efficient use of her right arm below the elbow, and that the injury was work-related. Dr Hayes was of the opinion that the respondent's right shoulder injury had resulted in a permanent loss of 10 per cent of the full efficient use of her right arm at and above the elbow. Mr Jeffries was of a similar opinion to Dr Hayes in relation to the degree of disability at and above the elbow, but Mr Jeffries' assessment included symptoms below the elbow which were attributable to the right shoulder injury. Although Dr Hayes said that the right shoulder injury was not work-related, Mr Jeffries was of the opinion that it was work-related and his Honour was entitled to prefer that opinion.

100 In any event, the learned Judge was correct in holding, as he did at [196], that if the only applicable item in relation to the respondent's injuries was item 13 of Sch 2, an assessment was required of her degree of disability resulting from all injuries which had caused a permanent loss of efficient use of her right upper extremity between the fingertips and the shoulder. On the evidence (in particular, Mr Jeffries' evidence) it was reasonably open to his Honour to conclude, as he did at [199], that the respondent's prospects of establishing a degree of disability of at least 16 per cent were reasonable.

101 The limitation period applicable to any cause of action in tort which the respondent may have had against Nell Gray Fashions was six years after the accrual of the cause of action. See s 38(1)(c)(vi) of the Limitation Act 1935 (WA).

102 A cause of action in negligence for personal injuries is not complete until the plaintiff first suffers actual damage that is "measurable". See Illawarra Area Health Service v Dell [2005] NSWCA 381 at [78]. Damage will not be actual damage if it is merely prospective or contingent. See Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 530, 531. Further, for actual damage to be "measurable", it must go beyond what can be regarded as negligible. See Illawarra Area Health Service at [78]; Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 at 306 [14]; Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 771 - 772. The limitation period commences to run even if the plaintiff is not aware that he or she has suffered actual damage.

103 In Illawarra Area Health Service, the respondent was a nurse who was employed by the appellant up to 1997 and from January 1999 to March 2000. During the period from January 1999 to March 2000 she developed an increasing sensitisation to latex, which developed into an illness called "latex allergy". The respondent commenced proceedings against the appellant for breach of its duty of care to her. The trial Judge entered judgment for the respondent. His Honour concluded from the medical evidence that a distinct injury arose in 1999 and rejected a limitation defence pleaded by the appellant. In the Court of Appeal of New South Wales, Mason P (with whom Handley JA and Young CJ in Eq agreed) dealt with the limitation issue at [75] - [82]. His Honour said, at [79] - [80]:

"The limitation defence raised in the pleadings threw up the issue of whether symptoms of latex sensitivity experienced in 1997 were indicative of latex allergy or were otherwise such as to set the ... clock running as regards the cause or causes of action sued upon. As indicated, the trial Judge found that the respondent first developed the disease of latex allergy in 1999 and that this was a pathologically distinctive and much more serious illness than that of latex irritation experienced during employment at the hospital during the period 1995-1997. His Honour recognised that some of the symptoms experienced in the two periods of employment were the same and that exposure to latex was the root cause. But the nature and extent of the respondent's symptoms amply supported the conclusion that a problem of a different order was encountered for the first time in 1999, albeit that it developed from the conditions of latex irritation and sensitivity first encountered in 1995-1997 that recurred in 1999 before progressing into the more serious illness.

The evidence showed that the risk of developing latex allergy was dose-related in the sense that longer and/or greater exposure could increase the risk of contracting the more serious condition."

His Honour concluded that the findings of fact demonstrated that a categorically distinctive injury was suffered in 1999, and it followed that the trial Judge had correctly rejected the limitation defence.

(a) In about late 1992 the respondent's duties with Nell Gray Fashions included ironing, and as from January 1993 the whole of her work involved ironing.

(b) In about October or November 1993 the respondent began to feel numbness and discomfort in her right hand, which was the hand she used to hold the iron. She alleviated the numbness by shaking her right arm, and continued ironing. The numbness did not persist after she ceased work for the day.

(c) In October 1994 the respondent noticed "pins and needles" in her right hand, in addition to numbness and discomfort, especially when she held the iron. These symptoms were felt at work, but only the discomfort continued when she ceased work for the day.

(d) During 18 November 1994, at night, the respondent's symptoms deteriorated. She awoke with pain in her right hand. The pain was accompanied by numbness and "pins and needles" from her hand to her elbow. She had not previously experienced comparable pain.

(a) The symptoms the respondent experienced in about October or November 1993 were "a sign of carpal tunnel syndrome".

(b) On the basis of Dr Hayes' evidence, the respondent's condition "progressed gradually over time as a result of [her] continuous ironing".

(c) There was a "clear and worsening progression of the syndrome commencing with discomfort then numbness and, finally, in October 1994, pins and needles in the right hand".

(d) The respondent's carpal tunnel syndrome was aggravated by Nell Gray Fashions' system of work which remained unchanged up to 18 November 1994.

His Honour concluded that the respondent's claim "insofar as the carpal tunnel syndrome is concerned was not statute-barred until six years after the [respondent] ceased her ironing work, that is, 18 November 2000".

(a) In any event, "what really incapacitated the plaintiff from work and triggered the adverse changes in her life outside work, was the onset of pain rather than the paraesthesia associated with carpal tunnel syndrome".

(b) On the basis of Dr Hayes' evidence, the respondent's pain was "brought about ... by irritation of the right median nerve" which was caused by her ironing work.

(c) The nerve irritation occurred on or very shortly before 18 November 1994.

His Honour concluded that the respondent's claim "insofar as it relates to the pain caused by nerve irritation was not statute-barred until 18 November 2000 because the injury did not occur until 18 November 1994 or shortly before that day".

107 Dr Hayes' evidence at trial, which was accepted by the learned Judge, established that the respondent suffered two distinct injuries to her right hand, wrist and lower arm. First, she suffered right median nerve compression. Secondly, she suffered right median nerve irritation. Nerve compression involves a delay in the conduction of nerve impulses and this, in turn, produces paraesthesia or "pins and needles" in the hand. It tends to be an intermittent phenomenon. Nerve irritation is usually caused by a sudden stretching of the nerve which, in turn, produces pain. Carpal tunnel syndrome is characterised by nerve compression, but not nerve irritation.

108 In my opinion, the learned Judge's findings in relation to the respondent's right median nerve irritation (including the cause of the irritation, the date on or about which the irritation commenced, the disability and incapacity attributable to the irritation, and the date on which the limitation period in respect of the irritation commenced to run) were not only open to his Honour, but were correct. It is true that his Honour said, at [76]:

"Nowhere does Dr Hayes precisely say what it is about the plaintiff's work with her former employer which would bring about this traction neuropathy. Having said this, I think it is likely, had he been asked, that he would have referred to the plaintiff's repetitive ironing activities as being a ready explanation for the irritation."

Although the precision referred to by his Honour was absent from Dr Hayes' evidence at trial, Dr Hayes did say, in his report dated 25 September 1996, that the respondent's "irritative neuropathy" in her right median nerve was work-related. Further, Dr Hayes said in evidence that the prime symptom of nerve irritation is pain, whereas pain is uncommon with nerve compression. His Honour accepted the respondent's evidence that the onset of pain, as distinct from paraesthesia, occurred on 18 November 1994, at night.

109 Dr Hayes gave evidence at trial in relation to onset of the respondent's right median nerve compression. He said, in cross-examination, that the respondent's carpal tunnel syndrome commenced when she first felt paraesthesia (that is, in about October or November 1993). The following exchange occurred in re-examination:

"Dr Hayes, you were asked about the onset of paraesthesia and you said the carpal tunnel syndrome would have started when she first felt paraesthesia?---Yes.

Now, if Mrs Da Silva had stopped doing the repetitive ironing for seven and a half hours a day at the time when she first felt paraesthesia, to what extent, if any, would she have had the same symptoms in her hand and arm that she had in 1996?---Well, that's a difficult question to answer. It's evident from her electrical test which was done early on that she had quite severe compression of the nerve and I think even had she stopped work then she may still very well have continued to experience symptoms of carpal tunnel syndrome.

Do we know to what extent she would have experienced those symptoms?---Well, her main problem is the nerve irritation rather than the actual nerve compression.

Now, Mrs Da Silva also gave evidence that she first experienced paraesthesia about a year before she had the onset of pain - - -?---Yes, well, that's the sort of story they give.

So she continued doing the work for another year, the repetitive ironing before she got the pain?---Well, I think her symptoms probably became slowly more frequent and then eventually she developed the nerve irritation as a complication of it and was left with ongoing pain."

110 In my opinion, the evidence at trial (in particular, Dr Hayes' evidence) established that in about October or November 1993 the respondent suffered an injury, for the purposes of the tort of negligence, namely, right median nerve compression, which was work-related. At that time, she suffered actual damage that was "measurable", and not merely negligible. The limitation period in respect of her median nerve compression injury therefore commenced to run in October or November 1993.

111 In Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120, the plaintiff, who was statute-barred in respect of lung disease caused by his employer having negligently exposed him to silica dust in the course of his employment, was able to prove subsequent negligent exposure to dust which rendered his condition worse that it would have been in consequence of the statute-barred negligence. Sugarman JA (with whom Walsh and Asprey JJA agreed on this issue) accepted, at 124, the correctness of the following propositions:

"If the respondent were able to recover anything in this action, it could only be by establishing, first, an aggravation of his condition by further exposure after 1958 going beyond the deterioration of his pre-1958 condition which would, in any event, have occurred naturally, and, secondly, that such aggravation was caused by further want of due care on the appellant's part. In short, he must show a new wrong committed within the period of limitation and further damage accordingly; and his recovery must be limited to such further damage, which means that his condition must have become worse by reason of the aggravation due to further exposure than it would have become by natural deterioration in the absence of further exposure."

See also Sheldon v McBeath (1993) Aust Torts Rep 81-209 at 62,082 - 62,083; Mount Isa Mines Ltd v Peachey, unreported; CA SCt of Qld; 1 December 1998 at [18] - [19]; Illawarra Area Health Service at [34].

112 In my opinion, there is merit in ground 3 of the appeal to the extent that part of the respondent's disability which is the result of her nerve compression injury gave rise to a cause of action against Nell Gray Fashions prior to 1 July 1994 and, in consequence, the limitation period in respect of that cause of action expired prior to the appellant commencing to act for the respondent on 1 July 2000.

113 In my opinion, however, the learned Judge was correct in finding that the respondent's nerve compression injury was aggravated by Nell Gray Fashions' system of work throughout the period up to 18 November 1994. His Honour was also correct in finding that the respondent's ultimate condition, to the extent that it relates to her nerve compression injury, was the product of the entire period from the date on which she commenced her ironing duties (in about late 1992) up to the date on which she ceased performing ironing work (namely, 18 November 1994). The respondent established, first, an aggravation of her condition throughout the period between 1 July 1994 and 18 November 1994 going beyond any deterioration which would have occurred in any event in the natural course of her nerve compression injury and, secondly, that such aggravation was caused by the negligence of Nell Gray Fashions.

114 This ground of appeal requires an examination of the principles to be applied in determining whether a plaintiff is entitled to damages (and, if so, the amount of those damages) where it is alleged that the negligence of the plaintiff's solicitors deprived him or her of the opportunity of enforcing a cause of action against a third party by issuing proceedings and pursuing them to settlement or judgment.

115 In Kitchen v Royal Air Forces Association [1958] 1 WLR 563, the plaintiff's solicitors allowed a claim by the plaintiff under the Fatal Accidents Acts 1846-1908 (UK) to become statute-barred. It was by no means certain that the plaintiff's claim would have succeeded. Lord Evershed MR said, at 574 - 575:

"I come last to what may be the most difficult point of all, namely, assuming that the plaintiff has established negligence, has she proved anything other than nominal damages? It is necessary to say something of the nature of the problem which (as I understand the law) the court has to solve in determining the measure of damages in such a case as this. The point taken by counsel for the second defendants is that we have now to consider the question of liability as between the plaintiff and the electricity company (or their successors) as though it were a distinct proceeding within the present action, and that, if we find on balance against the plaintiff, that is to say, that she fails in her claim against the electricity company (that claim being considered as if it were a separate and existing proceeding), then it follows that her damage is no more than nominal. If that is the right approach, it must follow that in any case such as the present the result, expressed in terms of money, is always all for the plaintiff or nothing. I cannot, for my part, accept that as the right formulation of the problem. If, in this kind of case, it is plain that an action could have been brought, and, that if it had been brought, it must have succeeded, the answer is easy. The damaged plaintiff then would recover the full amount of the damages lost by the failure to bring the action originally. On the other hand, if it be made clear that the plaintiff never had a cause of action, that there was no case which the plaintiff could reasonably ever have formulated, then it is equally plain that she can get nothing save nominal damages for the solicitors' negligence. I would add, as was conceded by counsel for the plaintiff, that in such a case it is not enough for the plaintiff to say: 'Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side, and they would have had to pay something to me in order to persuade me to go away'.

The present case, however, falls into neither one nor the other of the categories which I have mentioned. There may be cases where it would be quite impossible to try 'the action within the action', as counsel for the second defendants asks.

It may be that for one reason or another the action for negligence is not brought until, say, twenty years after the event, and in the process of time the material witnesses, or many of them, may have died or become quite out of reach for the purpose of being called to give evidence. In my judgment, assuming that the plaintiff has established negligence, what the court has to do in such a case as the present is to determine what the plaintiff has lost by that negligence. The question is: Has the plaintiff lost some right of value, some chose in action of reality and substance? In such a case it may be that its value is not easy to determine, but it is the duty of the court to determine that value as best it can."

Those observations of Lord Evershed were cited with approval by Burt CJ in Instant Nominees Pty Ltd v Redman [1987] WAR 218. His Honour said, at 226:

"There are many cases in the books in which solicitors have been held liable in damages for failure to take some step which has resulted in their client's claim becoming statute-barred. In such cases the court does not conduct a trial within a trial so as to determine whether the barred claim if prosecuted would, on the balance of probabilities, succeed or not, so that depending upon that decision the client would recover all or nothing. The consistent approach has been to deal with such cases upon the basis that the client has lost a chance of succeeding and if such be the case the task of the trial court is to place a value on the chance so lost."

Also see Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; (2002) 4 VR 570 at 590 [71].

116 In Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, the appellant, for himself and as next friend of his infant daughter, instructed the respondent, a firm of solicitors, to make claims for injuries suffered by him and his daughter in a motor vehicle accident. The respondent failed to commence proceedings before the expiration of the limitation period. The appellant sued the respondent for negligence. The trial Judge entered judgment for the appellant. A majority of the High Court held that the trial Judge had assessed damages on an erroneous basis. Wilson, Dawson, Toohey and Gaudron JJ said, at 404:

"For reasons which are set out in some detail in Johnson v Perez ((1988) [1988] HCA 64; 166 CLR 351), his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute-barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied - in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed."

117 In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, Deane J emphasised, at 119:

"[a] plaintiff whose action against a third party has become statute-barred by reason of a defendant solicitor's breach of contract may recover damages by reference to the court's assessment of what the chance of success in the action against the third party would have been even though that assessment is 50 per cent or less."

See, to similar effect, the observations of Parker LJ in Kitchen at 576. Compare Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 at 372 where Brennan J (dissenting) held that, where a plaintiff's original cause of action has been lost in consequence of the negligence of his or her solicitor, the court assessing the plaintiff's damages in proceedings against the solicitor must determine, on the balance of probabilities, whether the plaintiff's original cause of action would have succeeded (and, if so, to what extent) or failed. Brennan J's approach to the valuation of a plaintiff's lost cause of action appears to be stricter than the approach of Deane J in Amann Aviation and also appears to be inconsistent with the reasoning in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 352 - 356.

118 In my opinion, the plaintiff must prove, on the balance of probabilities, that he or she has lost something of value as a result of the solicitor's negligence; that is, the cause of action which became statute-barred had some value. See Sellars at 355; Feletti v Kontoulas [2000] NSWCA 59 per Mason P (with whom Sheller JA and Rolfe AJA agreed) at [34]; Radosavljevic v Radin [2003] NSWCA 217 per Mason P (with whom Handley and McColl JJA agreed) at [52]. The plaintiff must also prove on the balance of probabilities that, but for the solicitor's negligence, he or she would have pursued the lost cause of action. If the plaintiff proves both of those facts, the value of the plaintiff's lost opportunity to enforce the cause of action by issuing and pursuing proceedings to settlement and judgment is to be determined by reference to degrees of probabilities and possibilities. See Sellars, where Mason CJ, Dawson, Toohey and Gaudron JJ said, at 355 - 356:

"Notwithstanding the observations of this Court in Norwest [(1984) [1984] HCA 59; 157 CLR 149], we consider that acceptance of the principle enunciated in Malec [(1990) [1990] HCA 20; 169 CLR 638] requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages."

119 In Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997, Mason P (with whom Meagher JA and Dunford AJA agreed) considered how to distinguish between the "nuisance value" of a lost cause of action, on the one hand, and a lost cause of action which had sufficient "prospects" for a court to conclude that the plaintiff would have been likely to have received a valuable offer of settlement, on the other. His Honour said, at 8 - 9:

"The critical issue, not clearly addressed in the cases, is how to distinguish between the derisory or 'nuisance value' offer which Lord Evershed MR in Kitchen would disregard, and the situation where a case has sufficient 'prospects' for the court trying the negligence claim to be able to say that the plaintiff would have been likely to have attracted a valuable offer of settlement (even if worth considerably less than 100% of the plaintiff's actual loss): cf Yeoman's Executrix v Ferries (1967) SLT 332.

Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including 'the evidence that would or should have been available to the plaintiff at that time' (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action."

120 In the present case, the learned Judge found, at [212]:

"In my opinion, the plaintiff's hand, wrist and lower arm problems stemmed from carpal tunnel syndrome and more particularly, irritation to the right median nerve. I think it is likely that all these injuries were caused by [Nell Gray Fashions'] negligence."

In my opinion, there was a proper evidentiary basis for his Honour's finding that the respondent's nerve irritation injury was work-related. Dr Hayes gave evidence at trial as follows:

"It was quite evident that she had what is known as a neuropathic pain syndrome which began at the median nerve in the wrist and the pain was now spreading up the entire upper limb to the neck region, and I felt that this condition was related to her work."

" ... the nerve irritation simply implies that there is a neuropathic pain affecting the median nerve, and that was her main problem. ..."

(c) At T202, Dr Hayes explained the statement in his report dated 20 September 1996 to the effect that the respondent "should avoid any repetitive manual work where she is continually using her right hand". He said he expressed that opinion:

"Because she still had pain and tenderness in the right median nerve and manual work would further aggravate her symptoms."

(d) At T221, the following question and answer are set out, in relation to Dr Hayes' report dated 25 September 1996:

" ... I think you deal with the diagnosis where you say, 'She had a compressive and irritated neuropathy in the right median nerve of the wrist,' which is work-related in your view?---Yes."

121 There is no substance in the appellant's criticism of the learned Judge's conclusions in relation to Mr Jeffries' assessment of the nature and extent of the respondent's disability. See [92] and [94] above.

122 Also, there is no substance in the appellant's criticism of the learned Judge's findings in relation to the injury in respect of which the medical assessment panel expressed its determination and reasons. See [65] above.

123 After the learned Judge set out his finding, at [183], that the medical assessment panel "most likely assessed the level of permanent disability with respect to the plaintiff's shoulder and neck and not her hand, wrist and lower arm", his Honour said, at [184]:

"Having come to this view, I recognise that had the matter been determined by the Review Officer, it is likely that he or she would have made further enquiries which may have shed light on the medical assessment panel's determination. Where that inquiry would have led I am unable to say."

There is no substance in the appellant's criticism of this conclusion. The criticism is based, substantially, on the assertion that it is inconsistent with the binding nature of the panel's determination. I have dealt with that issue (and found the appellant's submissions to be unmeritorious) at [69] - [73] above.

"Although the plaintiff's case was not without its problems and risks, I do not think that it could be described as hopeless, indeed, in my view, she had a reasonable case against her former employer. In all the circumstances of this case, and doing the best I can to estimate the value of the chance lost to the plaintiff by the second defendant's negligence, I conclude that the value of the chance lost to the plaintiff is $86,113.85 being 65 per cent of the maximum amount the plaintiff would have recovered had her action against her former employer been completely successful."

126 The learned Judge set out, at [146], various matters which the respondent would have had to undertake or establish in order to recover damages against Nell Gray Fashions. The relevant matters were these:

"(a) issue a writ against her former employer before the limitation period expired;

(b) establish a significant disability of not less than 16 per cent before the Review Officer;

(c) establish negligence against her former employer;

(d) establish that her injuries had been caused by the former employer's negligence;

(e) establish the proper quantum of damages having regard to the provisions of the WCR Act and in particular s 92 and s 93F of that Act."

His Honour then examined each of those matters in detail.

127 The learned Judge took into account various factors, adverse to the respondent, in determining the value of her lost opportunity. Those factors are discussed, at [232]:

"However, the plaintiff was by no means certain to have obtained a judgment against her former employer in the sum of $132,482.85. Whilst I think that there is a reasonable prospect that she would have satisfied a Review Officer that her disability was 16 per cent or more I do not think it can be said that that certainly would have happened. Further, on the evidence before me, I cannot say with any degree of certainty at all that her shoulder and neck injuries were attributable to the former employer's negligence. Both of these matters were important aspects of the plaintiff's case. If she had not succeeded before a Review Officer she would have not recovered any damages from her former employer. If a court found that the shoulder and neck injuries were not attributable to her former employer's negligence, her damages would have been substantially reduced. I think I should also take into account that the matter may have settled. This is a case in which a prudently advised plaintiff may well have settled taking into account the risks that she faced both before a Review Officer and then at any trial."

128 The learned Judge's valuation of the respondent's lost opportunity involved decision-making which was analogous to decisions involving the exercise of a discretion and, in those circumstances, this Court should not interfere with his Honour's decision-making unless it is apparent that he applied a wrong principle of law, misapprehended the facts or made a wholly erroneous estimate of value. Compare Moran v McMahon (1985) 3 NSWLR 700 at 702, 719, 722, 726. Also compare Dell v Dalton (1991) 23 NSWLR 528 at 533 - 534.

129 As I have mentioned in [110] and [112] above, the learned Judge concluded, erroneously, that the limitation period in respect of the respondent's nerve compression injury did not commence to run until 18 November 1994. In my opinion, that error is not sufficiently significant to require that his Honour's valuation of the respondent's lost opportunity be set aside. First, his Honour concluded that it would have been correct for a review officer to make two separate assessments under two items in Sch 2 and aggregate them in accordance with the WCR Act. Secondly, his Honour concluded that even if it was not open to the review officer to make two separate assessments under two items of Sch 2 and aggregate them, the respondent may still have convinced the review officer that her level of disability was at least 16 per cent because the review officer would have had to assess her disability under item 13 of Sch 2, taking into account all of her injuries, not just the injury to her shoulder and neck. Even on that basis, the respondent's chances of establishing a disability of at least 16 per cent were reasonable. Thirdly, in relation to the limitation period, his Honour found that it was the pain associated with the nerve irritation injury rather than the paraesthesia associated with the nerve compression injury, which "really incapacitated the plaintiff from work and triggered the adverse changes in her life outside work". Fourthly, in relation to the limitation period, the respondent's nerve compression injury was aggravated between 1 July 1994 and 18 November 1994, the aggravation went beyond any deterioration which would have occurred in any event in the natural course of the injury, and such aggravation was caused by the negligence of Nell Gray Fashions.

130 In my opinion, there is no substance in the appellant's other complaints in relation to the learned Judge's approach to and assessment of the value of the respondent's lost opportunity.

132 At the relevant time, s 93F(1) of the WCR Act provided:

"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."

At the relevant time, the term "Amount A" was defined or determined in accordance with s 93F(8).

133 In Marshall v Lockyer [2006] WASCA 58, the respondent suffered a disability falling within s 93F(1). The primary Judge 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), and 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. The primary Judge therefore awarded the respondent the maximum permitted under s 93F(1). On appeal, the appellant sought to set aside the finding that the respondent's disability was a most extreme case of a disability of less than 30 per cent. Roberts-Smith JA said, 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, 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 agreed, at [326], with Roberts-Smith JA that "the mathematical approach" does not apply. Her Honour then said, 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's construction of s 93F(1) was different from that of McLure JA. His Honour said, 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%. 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% 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."

134 In Murray River North Pty Ltd v Midgley [2006] WASCA 104, the respondent injured his left wrist. 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. No agreement or determination had been recorded, however, for the purposes of s 93E of the WCR Act, that the degree of disability of the respondent was not less than 30 per cent. The Commissioner decided that the respondent's disability was within the category of "a most extreme case of a disability of less than 30 per cent in degree" and awarded him the maximum available at the relevant time, namely $293,990. On appeal, the appellant submitted that the respondent's injuries could not reasonably be found to fall within the class of a most extreme case of a disability not less than 30 per cent. Steytler P noted the difference in approach to the construction of s 93F(1) between McLure JA and Murray AJA in Marshall. The President expressed, at [9], his preference for the approach of McLure JA. His Honour said:

"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."

I agree, with respect, with Steytler P's observations. In Murray River North, Pullin JA agreed, at [31], with the opinion of McLure JA expressed in Marshall at [327]. His Honour then said, at [32] - [35]:

"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."

Wheeler JA agreed with Pullin JA's reasons for decision.

135 In the present case, the learned Judge held, at [229] - [230], that had all issues been determined in the respondent's favour at a trial against Nell Gray Fashions, the trial Judge would have found that the respondent had sustained significant past economic loss and a total destruction of her future earning capacity, and that her injuries had substantially and adversely affected her life in general. His Honour addressed s 93F of the WCR Act, at [230], as follows:

"... Section 93F(1) requires a trial Judge to determine the amount of damages according to the severity of the disability. In my opinion the severity of the disability has to be gauged from the effects of that disability upon the plaintiff both in terms of economic and non-economic loss. That judgment must be tempered by the legislative requirement that a court cannot award the maximum amount, Amount A, unless the case comes within the category of a most extreme case of disability of less than 30 per cent in degree. In my opinion, had all issues been determined in favour of the plaintiff, it is likely that a court would have decided that the plaintiff's case was one which could be fairly categorised as a most extreme case of disability of less than 30 per cent in degree. Taking the plaintiff's case as a whole, it seems to me that her working life has been devastated and that her enjoyment of life has been considerably diminished. The plaintiff appeared to me to be a person who enjoyed her work and had a full and active life at home. Her ability to work has been lost and she is unable to pursue the things which made her life worthwhile."

136 The expression "a most extreme case" in s 93F refers to a class of cases rather than to a case "at the apex of the gradation of injuries": Marsland v Andjelic (1993) 31 NSWLR 162 at 183. Also see Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [53]. A Judge's assessment of whether a case is "a most extreme case" within s 93F involves "questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment": Dell at 533 - 534. An appeal court should not interfere with a trial Judge's finding on an issue of that kind unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case.

137 In my opinion, the appellant has not demonstrated any error in relation to the learned Judge's finding that, for the purposes of determining the value of her lost opportunity, the respondent's case was within the category of "a most extreme case" within s 93F. Ground 6(a) of the grounds of appeal therefore fails.

138 The learned Judge decided, at [219], that the amount of workers' compensation benefits which had been received by the respondent should be deducted from the common law damages which she would have recovered had she been wholly successful in her claim against Nell Gray Fashions. His Honour said, at [219]:

"Amount A, if the trial had occurred sometime in the second half of 2002 was $274,278. From any amount of damages which the court assesses, the amount of workers' compensation already paid to the plaintiff must be deducted from the amount of the judgment: s 92(b) of the WCR Act. I was originally told that the plaintiff had received $156,795.15 by way of weekly payments of compensation. Counsel informed me on 3 March 2005 that the combined amount of weekly payments and statutory allowances was in fact $141,795.15. Accordingly, the maximum amount that the plaintiff could have been awarded at trial assuming that all issues had been decided in her favour was the difference between Amount A and her workers' compensation payments which amounts to $132,482.85."

139 The learned Judge then decided, at [233], that the value of the respondent's lost opportunity was $86,113.85 (being 65 per cent of $132,482.85). His Honour then deducted $15,000 from the amount of $86,113.85 and entered judgment for $71,113.85. I will consider, in the context of ground 1 of the further amended notice of contention, the correctness of his Honour's treatment of the $15,000.

140 In my opinion, the learned Judge correctly deducted the amount of the workers' compensation benefits from the amount which he determined the respondent would have recovered had she been wholly successful in her claim against Nell Gray Fashions. His Honour's approach accords with the following observations of Mason CJ in Nikolaou, at 400:

"The Court must ascertain the value of what the appellant lost as a result of the solicitors' negligence. It will need to determine what the appellant would have recovered but for that negligence and will need to discount that amount by the chance that he would not have been successful in that claim: (see Kitchen v Royal Air Force Association [1958] 1 WLR 563)."

Although Mason CJ was in dissent in relation to the appropriate date as at which damages should be assessed, his Honour's observations as to the correct approach to the assessment of damages is consistent with the views expressed by Wilson, Dawson, Toohey and Gaudron JJ in that case at 404 - 405, and also with the reasons of Wilson, Toohey and Gaudron JJ in Johnson v Perez at 367 - 370.

141 In my opinion, ground 6(b) of the grounds of appeal fails.

Ground 1 of the further amended notice of contention

142 On 3 March 2005 counsel informed the learned Judge that, in addition to the workers' compensation benefits totalling $132,482.85, referred to in the context of ground 6(b) of the grounds of appeal, the respondent had received a payment of $15,000 as a workers' compensation benefit. His Honour deducted that amount from his valuation of the respondent's lost opportunity rather than from the amount of damages that the respondent would have recovered had she been wholly successful in her claim against Nell Gray Fashions.

143 Counsel for the appellant accepted in argument before this Court (correctly, in my view) that if ground 6(b) of the appeal failed, then ground 1 of the respondent's further amended notice of contention should succeed.

144 In my opinion, for the reasons I have given in relation to ground 6(b) of the grounds of appeal, ground 1 of the respondent's further amended notice of contention should succeed, and the damages awarded by the learned Judge should be varied by increasing those damages from $71,113.85 to $76,363.85.

The other grounds of the respondent's further amended notice of contention

145 It is unnecessary, in the circumstances, to consider the other grounds of the respondent's further amended notice of contention in that the appellant has failed to establish any of the grounds of appeal to which the other grounds of the further amended notice of contention relate.

147 The orders made by the learned Judge should be varied, however, in accordance with ground 1 of the respondent's further amended notice of contention so that the damages awarded to the respondent are increased from $71,113.85 to $76,363.85.

• The retainer of Fiocco Hopkins Nash
• The respondent commences proceedings against Fiocco Hopkins Nash and the appellant
• The respondent's pleaded case against the appellant
• The expert evidence at trial
• The learned Judge's findings in relation to the principal medical evidence
• The learned Judge's findings in relation to the respondent's future employment prospects
• The learned Judge's findings in relation to the appellant's alleged negligence
• The learned Judge's findings in relation to the limitation period applicable to the respondent's causes of action against Nell Gray Fashions
• The learned Judge's summary of the statutory framework relating to the respondent's claim against Nell Gray Fashions
• The learned Judge's findings as to the effect of the medical assessment panel's determination
• The learned Judge's findings that the respondent would have elected to pursue a common law claim
• The learned Judge's findings as to the respondent's prospects of establishing negligence against Nell Gray Fashions
• The learned Judge's findings as to whether the negligence of Nell Gray Fashions caused the respondent's injuries
• The learned Judge's findings as to the value of the respondent's lost opportunity to sue Nell Gray Fashions
• Grounds of appeal
• The respondent's further amended notice of contention
• Ground 1 of the appeal
• Ground 2 of the appeal
• Ground 3 of the appeal
• Ground 4 of the appeal
• Ground 5
• Ground 6(a)
• Ground 6(b)
• Ground 1 of the further amended notice of contention
• The other grounds of the respondent's further amended notice of contention
• Conclusion