in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way. Even in a matter of degree the facts may show so great a departure from what is an allowable incident of the employment that it is not open to a court to make any but one finding." 11. As we understand Mr Riley's submissions, it was not suggested that there was any error of law appearing ex facie from the reasons in either of the courts below; rather the force of his submission was directed towards showing that the only reasonable conclusion open on the facts as found and on the facts not in dispute was that the respondent was not in the course of his employment at the time of his injuries. 12. Mr Riley QC based much of his argument upon the recent decision of the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 106 ALR 611, and in particular on the following passage from the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ (at 617): "... Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular

occasion out of which the injury to the employee has arisen': Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 537." 13. The nub of Mr Riley's submission was that, given that the respondent was in the course of his employment up to the time he stopped at the hotel, the only reasonable conclusion open was that he then went into "recreation mode" and abandoned his employment as a consequence of his gross misconduct in his drinking at the hotel until he was intoxicated. If gross misconduct took him outside his employment, so the argument went, there could be no resumption of his employment when he later left the hotel in order to return to the camp. 14. There are, in our opinion, several answers to this contention. The first is, that the injury did not occur during an interval between episodes of work. The respondent was not merely returning to the camp for his own purposes; his journey was for his employer's purposes, namely, to carry the parts he had purchased to the work place, to return the vehicle to the workplace, and to return himself to the camp site where he was required or reasonably expected to be. As his Honour observed in the Supreme Court: "... the respondent's situation was no different to that of a person whose primary job was to drive, for example, a truck driver or of a person whose employment has as one of its incidents activities taking one away from one's primary place of employment, for example a mechanic who travels to buy spare parts or an office girl who goes to the post

office to collect mail. Subject to the question of serious and wilful misconduct and s7(3) of the Act, the respondent was entitled to compensation." 15. The second answer to the respondent's contention is that we do not consider that the High Court intended, by its references to "gross misconduct taking him or her outside the course of employment," to be laying down a universal proposition of law that whenever gross misconduct occurs during an interval between episodes of work, the employee must be outside the course of the employment. No doubt that will often be the case, but s7(3) of the Act makes it clear that an employee is not taken outside the course of his employment by his own serious and wilful misconduct if he suffers permanent and serious injury. As Lord MacMillan observed in Harris v Associated Portland Cement Manufacturers Ltd (1939) AC 71 at 83-4: "My Lords, throughout the whole course of the legislation dealing with workmen's compensation from 1897 down to the present day the cardinal condition of a valid claim of compensation was been that the accident causing personal injury to the workman shall have arisen out of and in the course of his employment. Amending legislation has affected this cardinal condition in a not very logical fashion by providing that, if the accident results in death or serious and permanent disablement then, in certain cases, notwithstanding that certain facts are proved which might be thought to establish that the accident did not arise out of and in the course of the employment, the employer is to be precluded from so maintaining by reason of these facts alone. If the injury to the workman is proved to have been attributable to his serious and wilful misconduct compensation is not to be disallowed by reason of this fact if the injury results in death or serious and permanent disablement - which is tantamount to saying that although the accident is attributable to the workman's serious and wilful misconduct it may nevertheless be held to arise out of and in the course of his employment. In such a case, although the employer cannot in answer to the claim plead that the accident was due to the serious and wilful misconduct of the workman, he may still plead that for other reasons it did not arise out of and in the course of the employment. Further, but again only if the accident results in death or serious and permanent disablement, the employer is precluded from pleading that the accident did not arise out of and in the course of the employment because at the time of the accident the workman was (a) acting in contravention of a statutory or other regulation applicable to his employment or of orders given by or on behalf of his employer or (b) acting without instructions from his employer, provided in both cases that such act was done by the workman for the purposes of and in connection with his employer's trade or business. Subject to these qualifications and restrictions the plea that the accident did not arise out of and in the course of the employment remains available to the employer." 16. These observations are clearly applicable to the provisions of subss7(1),(3) and (4) of the Workmen's Compensation Act. In interval cases, the ultimate question is still whether the injury arose by accident out of or in the course of the employment within the meaning of s7(1). We do not understand the High Court to be in any way suggesting otherwise, or that subs7(3) and (4) have no application to such a case. We consider that all their Honours intended by their references to gross misconduct was to draw attention to the general rule, rather than the exception. It is the words of the Act which must rule in every case, and judicial pronouncements are not to be construed in the same way as an Act of Parliament, particularly when it is plain that general guidance is being offered, and the court has not specifically averted to the relevant statutory provisions in question. It was suggested that there is a difference between gross misconduct and serious and wilful misconduct, but we are unable to see any difference between the two concepts. In any event the only relevant finding by the learned magistrate was that the misconduct was serious and wilful; not that it was also "gross." If there is a difference between the two concepts, there is simply no finding that the misconduct was gross. But, as we have already said, we do not consider that there is any difference between the two ideas. Accordingly we do not accept the proposition that an employee is precluded by his misconduct from resuming his employment. 17. In our opinion it has not been shown that the decision of the learned magistrate or of the Supreme Court was in error in holding that the respondent's injury arose in the course of his employment. It follows that the appellant's submission that this was, in truth, a journey case which fell outside the provisions of s8 because of the provisions of s8(2) must fail. In our opinion this was not a journey case at all. The respondent was not travelling "to his employment"; the facts support the conclusion that the journey was the employment, or at least something that was part of or incidental to his duties as a whole, at the relevant time. In those circumstances the conclusion that the injury arose in the course of his employment cannot be interfered with. QUANTUM 18. The Claim The amount of an employer's liability to a worker under the Act is fixed by reference to the Act. Relevantly to this matter, where the worker is totally or partially incapacitated for work by the injury there is payable to the worker weekly payments for a term of weeks calculated in accordance with formulae set out in Schedule 2 (s7(1)). Where the worker sustains an injury which causes loss or partial and permanent loss of the efficient use of a part of the body specified in the Third Schedule in and for the purposes of his employment at the date of the injury, there is payable an amount of compensation also to be calculated in accordance with the provisions of the Act, namely s10 and that schedule. Schedule 2 cl(12) provides that where in the case of total and permanent incapacity or partial and permanent incapacity, a worker is receiving or entitled to receive a weekly payment, that person may apply to redeem the liability for that weekly payment by the payment of a lump sum. There is no formula relating to the calculation of that lump sum. There was evidence before the Workers' Compensation Court directed to the respondent's claim for weekly payments under s7 and for additional compensation under s10. Application was also made to redeem the liability for weekly payments. THE EVIDENCE 19. The respondent's evidence before the Workers' Compensation Court was that immediately after the accident he suffered pain in his left arm, hip and left leg. His major injuries comprised two fractures of the left forearm and damage to the bones in the left hip joint which caused consequential pain to the left knee and right hip. According to him, it took about three months to get on his feet with gradual increase in weight bearing, particularly on his left leg. In March 1988, he underwent further surgery for the removal of pins inserted as part of the treatment of the damaged bones. In mid 1988, he came under the supervision of the Commonwealth Rehabilitation Service which continued for about 12 months. He undertook a work assessment programme and obtained work experience for a period of three months with a motor vehicle auctioneer's firm from mid 1989. He was not paid by the firm, but received continuing social security benefits. His evidence was that thereafter he tried to obtain employment with motor vehicle auction firms, as a plant operator and a truck driver, and in other fields, but was unsuccessful. He had continued to suffer from pain arising from the injuries. At the time of the hearing before the Workers' Compensation Court he complained that his left arm lacked strength and was painful if it was struck, and that he had difficulty walking and sitting for any length of time because of pain and discomfort in his left hip, left leg and knee. His left leg had shortened compared with his right, and there was muscle wasting of it. 20. During the course of his evidence, the respondent told of his varied pre-accident work experience including as a storeman, a spare parts salesman and the variety of tasks which comprised his work for the appellant. Cross-examined, he agreed that Mr Baddley, an orthopaedic surgeon, had advised him that he could return to work as a truck driver provided there was no part of his duties involving loading or unloading and that he accepted what the doctor had told him, although he had not gone out and applied for such a job. He had also received advice from a Doctor Hay in 1989 that he should be able to return to work. As to the job with the car auctioneers, he described the nature of the duties as clerical, estimation of values of motor cars, driving vehicles and arranging them on the auction room floor. He said he was happy in the job and able to cope in it, but when the three month's work experience period expired he was unable to obtain employment in that field being told there were no vacancies. He applied for other positions as a car salesman and for lubricating work, but always with the same result. He agreed that he could do any job that avoided lengthy sitting, standing or walking, provided, of course, it was within his mental capacity. Although he had from time to time undertaken work which might be broadly termed as clerical duties, the employment service had recommended that he undertake an educational course which might benefit him for that type of work. He had looked at newspaper job advertisements but had not applied for any during a period of 12 months prior to the hearing. He had thought of taxi driving, but considered that continuous sitting would prove a problem. He considered that part of his difficulty in obtaining jobs related to prospective employers' reluctance to employ him: "they want a hundred percent these days". 21. Mr Griffiths, a specialist in orthopaedics and, amongst his many qualifications, a Fellow of the Australian College of Rehabilitation Medicine, gave evidence for the respondent. A number of objections were raised to the doctor's answering questions relating to his opinion of the extent of the respondent's disabilities in relation to work. The questions were allowed, and those rulings were not a ground of appeal to the Supreme Court. Mr Griffiths told of his having treated patients who had followed the occupation of a labourer, a plant operator and a worker on construction projects. He understood that the respondent was a plant operator involved in a lot of driving of machinery and had experience in other forms of work in outback areas, but had very little by way of qualifications or experience in any form of sedentary occupation. He was asked as to his assessment of the percentage disability of the respondent's left arm for the purposes of his employment as a plant operator. Disclosing his reasoning towards the result with reference to the nature of the injuries and their then condition, he said: "I believe he would have a maximum of, say, 10 per cent of loss of efficiency of the left upper limb as a result of fractures of both forearm bones although they have now healed into position." Dealing with the respondent's left leg for the purposes of his being employed as a plant operator, the doctor opined that the leg was one hundred percent disabled. As to the percentage disability caused by the referred pain in his right hip and groin for the purposes of his employment as a plant operator, he did not believe it would be great: "No more than perhaps 5 per cent." 22. It was Mr Griffiths' opinion that the respondent should undergo a procedure involving replacement of part of the damaged left hip. It would be aimed at alleviating the pain which was preventing him from using his left leg normally. If the respondent consented and cooperated there was no reason why it should not be carried out without delay. Given the respondent's age, and the state of knowledge at the time the doctor gave his evidence, he thought the replacement would need renewal every 7 years or so. If the procedure was undertaken the respondent would have surprisingly little in the way of pain and would have very good movement range, but he would nevertheless have a potential disability given that the hip would eventually give further trouble especially should it get vigorous usage. Mr Griffiths did not believe that at the time of the hearing the respondent was employable in anything that required any standing or prolonged sitting. He would find driving difficult, he had little agility and could not run nor climb ladders or stairs frequently. Given occupational training he may be employable in a sedentary capacity. He did not think that the respondent was then capable of being a taxi driver, though perhaps he could do so after the proposed surgery. Even after that operation, he thought it would be unadvisable for the respondent to take employment as a storeman if he was to be on his feet for long periods load bearing. In summary, the doctor's opinion was that the respondent was not fit for any form of occupation at the time he gave his evidence, but after the hip replacement he could do work in a very modified capacity of a sedentary nature. He would still have to avoid any activities that would place any stress on the hip replacement. The hip replacement would also have a beneficial effect upon the difficulties in the right leg. In cross-examination, Mr Griffiths said that, speaking generally, any occupation involving long periods of standing, load bearing on the hip and repetitive bending and lifting effort were ill advised, even after the operation. He thought that a job as a clerk would be ideal for the respondent, although he might find difficulty in sitting because of the pain in the hip. 23. With some reservations as to the amount of standing that might be involved, the doctor was sure that the respondent could sell motor vehicles. It could take three months or more after the proposed operation before he could take up a suitable type of occupation and could continue until such time as the replacement failed or caused problems requiring revision. He confirmed, from a medical point of view, that it was better that the respondent undertake the procedure sooner rather than later otherwise his condition might deteriorate further. The doctor agreed in cross-examination that he had not obtained details from the respondent as to the daily functions of the work upon which he was employed at the time of the accident. When it was put to him that what he had done was to assess the respondent's physical disablement unrelated to his employment he replied: "Unless his employment is totally sedentary, office type, perhaps even a member of the medical or legal profession, I think the hip would cause him considerable distress in any other form of occupation." In re-examination the doctor confirmed that with reference to the respondent's capacity for work, a job in a car auction yard involving clerical duties and moving motor vehicles around within a limited area would be a suitable occupation, but that he would do that type of job far better if he had a new hip. 24. Mr Smith was employed as a senior employment officer in the Commonwealth Employment Service with particular reference to disadvantaged job seekers, including persons physically disabled by industrial and motor vehicle accidents. He dealt with disabled job seekers as well as potential employers of disabled people. The respondent was registered with the service during 1988 and until March 1990. Mr Smith confirmed that the respondent had been referred to the Commonwealth Rehabilitation Service and he had a report in relation to the respondent received from that service as well as the respondent's personal details as to work experience, education, qualifications and so on including, of course, the disabilities which he suffered as a result of the accident. With that information he expressed the view that the respondent's prospects of obtaining employment as a labourer or plant operator would be minimal. As to sedentary employment, he said that the demands of employers require skills from past experience and that there is a great reluctance to re-train people. In addition, disabilities of a prospective employee are viewed adversely. Prospective employers are concerned about performance and whether the disabled person is likely to be absent on sick leave. Furthermore, prospective employers have a further reluctance to employ people who have been involved in workers compensation claims. All those things are barriers to re-employment of a disabled person. Looking at the respondent's prospects of obtaining employment generally, with his knowledge of his background, experience, skills, and disability, Mr Smith said that in his assessment he would have very minimal employment prospects. In cross-examination he agreed that the respondent had successfully undergone his work trial with the motor vehicle auctioneer, and the reason he did not obtain work after that was that there was no work available. 25. As the respondent's contact with the service had ceased in March 1990, the evidence being given in the proceedings in April 1991, Mr Smith conceded that his opinion as to the respondent's employability was based upon his speculating as to what he considered to be the case in March 1990. He appeared to agree that the tight labour market was a factor in the respondent's difficulties in obtaining employment, but added that his experiences with disabled people over a period of years showed that they have difficulties in obtaining employment regardless of that factor. He said that the minimum wage payable in Western Australia was around $230 - $240 per week and the average unskilled or semi skilled wage was around $300 - $330 per week. He accepted that if the respondent had obtained employment following the work experience with the car auction yard he would have been paid in excess of $200 per week. Mr Smith agreed that the respondent could do work as a storeman, a base grade clerk at a motor vehicle registry and as a person selling maps in a lands department. He agreed that the respondent could physically do those jobs, but with his knowledge of the labour market it would be extremely difficult to obtain such a position. He regarded physical disability as the major factor affecting a person's prospects of obtaining work, in comparison with the other factors which had been mentioned. 26. In the appellant's case before the learned magistrate, Mr Strippling, the assistant personnel manager of the Department of Transport and Works in the Northern Territory, said that there was no minimum educational requirement for employment of a person as a base grade clerk and that the weekly wage for such a position was $347 per week. He described a job as a base grade clerk in the motor vehicle registry, by way of example, as involving a wide range of duties such as being able to drive a motor vehicle, walk from place to place within an office, open and close filing cabinets, filing documents, answering telephone enquiries and using computer systems. Walking may involve going up and down stairs. Although vacancies became available from time to time, he spoke of the then current policy of filling positions from within the Public Service. However, the Department was an equal opportunity employer. 27. In cross-examination, he said that although there was no minimum educational requirement, educational qualifications of an applicant for a job is one of the criteria to be considered. An applicant's physical health was another. The appellant also called evidence from a Mr Major, a person with appropriate qualifications in the motor vehicle sales industry. He spoke of the general attributes which would be desirable in a person engaged to sell motor cars. There were no particular physical activities of any significance required of such a person, although they might be required to drive cars around the yard once a week. There were not many vacancies in new car dealerships with people on a waiting list to obtain the opportunity to work there, although vacancies occur in the used car sales business fairly regularly. Car salesmen are paid an award of $363 a week plus a commission. 28. A person who had a bad hip causing an unusual walking style would not be disadvantaged in such a job because of that factor. Good personal presentation and confident representation of the manufacturer's product were more important than anything else. He agreed that in the new car sales area there was competition for available positions, but that there were always opportunities in the used car sales field although still competitive. 29. The appellant called no evidence going to the respondent's physical incapacity for work nor as to the loss of the efficient use of a part of his body in and for the purposes of his employment at the time of the injury. There was evidence that the respondent was being paid $400 per week by the appellant at the time of the accident. WORKERS' COMPENSATION COURT - REASONS AND FINDINGS 30. The learned magistrate, in her reasons, set out the evidence given in the case in far greater detail than appears above and it is not suggested that she erred in any respect in that regard. When considering the question of whether the respondent had suffered serious and permanent disablement, her Worship expressly said that she accepted the evidence given by the respondent and Mr Griffiths as to the injuries suffered in the accident. Further, she accepted the evidence of Mr Griffiths: "That as regards Mr Clair's left leg he is 100 per cent disabled for any labouring work or plant operating or sitting or driving for long distances." She was thus satisfied that the respondent had a serious and permanent disability, relevant to the liability issue, but there is no reason why her findings in that regard could not also be applicable to issues relating to quantum. 31. The learned magistrate then turned to the question of "lump sum disability." It is plain that she was then alluding to the claim pursuant to s10, although she did not always employ all of the words comprising the statutory basis of entitlement. She accepted Mr Griffiths' evidence that Mr Clair had a ten percent disability of his left forearm in and for the purpose of his employment at the date of the injury. As to the disability in the left leg, and noting that the respondent's work involved long periods of driving, teaching the operation of plant and equipment and fixing and maintaining it, she said she accepted the evidence of the doctor, supported by the evidence of the respondent that "his left leg is 100 per cent disabled in and for the purpose of his employment." She then moved on to say that she accepted the evidence of the doctor that the respondent had a five percent disability of his right leg in and for the purpose of his employment. Concluding the question of physical disability, the learned magistrate said: "Any future hip replacement will relieve pain but will not, on the evidence before me, affect the efficient use of his left forearm, his left leg or his right leg in and for the purpose of his employment at the time of the injury. I accept that he cannot return to that form of employment." 32. On the question of redemption, the learned magistrate said that she was not satisfied that the respondent was permanently and totally disabled, but he would have the capacity to do a range of jobs, including work that involved limited clerical skills, work in a car sales yard, counter clerk in a government department, a taxi driver and a range of employment that does not involve heavy labouring work, prolonged standing, sitting, bending or lifting. She found that he had a partial and permanent incapacity which she assessed at sixty percent. 33. Nowhere in an otherwise detailed review of the evidence or in her findings does her Worship expressly address the question of the employer's liability to make weekly payments under s7. Nevertheless, an award was made by her for weekly payments for the first 26 weeks after the date of the accident at the rate of $400 per week and thereafter to 2 August 1991, date of delivery of judgment, at the rate of $197 per week, the statutory maximum, if the respondent had been totally incapacitated for work by the injuries to the date of judgment. Awards were also made reflecting the employer's liability under the heading of "Lump Sum Disability" relating to left forearm, left leg and right leg. Her Worship made an order that the respondent was entitled to redemption of the future liability for weekly payments based upon her finding that he was sixty percent permanently and partially disabled leaving the quantum to be the subject of later submission. APPEAL TO THE SUPREME COURT 34. The relevant grounds of appeal to the Supreme Court were: "4. The Court erred in (a) failing to have regard to the evidence that the respondent could earn more than $197 doing the work which the Court held he could do; (b) failing to have regard to the evidence that there was

work for which he was able and in which he would have earned more than $197 per week but which was not available to him only because of the state of the economy. 5. The Court erred (a) in holding that the respondent had a 100 per cent loss of his left leg in and for the purposes of his employment at the date of the injury, in that it failed to consider the evidence in particular of the true nature and incidents of his employment at that date; (b) in finding that a future hip replacement would not affect the efficient use of his left leg in and for the purpose of his employment at the time of the injury, in that

it failed to have regard to the evidence, in particular that the hip replacement would restore substantial, if not total,

use of his left leg. 6. The Court erred (a) in holding that the respondent had a 5 per cent loss of his right leg in and for the purposes of his employment at the date of the injury, in that it failed to consider the evidence in particular of the true nature and incidents of his employment at that date; (b) in finding that a future hip replacement would not affect the efficient use of his right leg in and for the purpose of his employment at the time of the injury, in that it failed to have regard to the evidence, in particular that the hip replacement to the left leg would restore substantial, if not total, use of his right leg. 7. In awarding lump sum compensation under s10 of the Act, the Court erred in failing to have regard to the evidence that the respondent's injuries were not permanent and were partial only. ... 9. The Court erred in

(a) failing to have regard to the evidence of the wages for the employment for which the Court found the respondent was fit, and thereby miscalculated the redeemed value of future weekly compensation; (b) finding that the respondent was permanently incapacitated and therefore entitled to redemption of future weekly payments of compensation; (c) finding that the respondent's incapacity was 60 per cent; (d) failing to apply or properly apply the formula for calculation of redemption of weekly payments of compensation set down in Watkins v Renata (1984) 29 NTR 38." 35. His Honour held that the learned magistrate did not find that the respondent was fit or able to perform any particular job, although she held that he could do work not involving heavy labour, prolonged standing, sitting, bending or lifting. She did not find that he was "able to earn" for the purposes of paragraph 1(b) (sic) of the 2nd schedule of the Act. There was no evidence that the respondent could earn any income. It followed, his Honour said, that if the respondent was only partially (as distinct from totally) incapacitated, the "lesser" amount for the purposes of the 2nd schedule paragraph 1(b) (sic) is $197, and it is to this amount that the proviso is to be applied, see Watkins v Renata (1984) 29 NTR 38. (His Honour was probably referring to paragraph 1B). He dismissed the appeal against the orders for weekly compensation. As to the orders for redemption and the lump sum payment, pursuant to s10 of the Act, his Honour thought it sufficient to say that the only attack against those orders was an attack on the evidence and that the learned magistrate's order should be affirmed. APPEAL TO THE COURT OF APPEAL 36. The grounds of appeal to this Court from his Honour's decision relevantly simply restate the grounds of appeal to the Supreme Court. No effort was made to state grounds of appeal from his Honour. No objection was made by the respondent to the matter proceeding on hearing before this Court on the basis that it was reviewing the case before the Workers' Compensation Court on the reasons thereon rather than the appeal before the Supreme Court and his Honour's reasons. 37. An appeal to the Supreme Court is restricted to a question of law (s26(1)) and an appeal from that Court to this obviously can not be on any other question, particularly, one involving a question of fact. No more than did his Honour, this Court has no jurisdiction to control findings of fact of the Workers' Compensation Court. As can be seen by reference to paragraphs 4 - 7 and 9 of the grounds of appeal to the Supreme Court, which are repeated in the grounds of appeal to this Court, all but one, on their face, are attacks upon findings of fact. It is said that there was error in "failing to have regard to the evidence" or, "it failed to consider the evidence" or, "finding" certain things as matters of fact. An exception is the ground which alleges that the Supreme Court failed to apply or properly apply the formula for calculation of redemption of weekly payments of compensation set down in Watkins v Renata (1984) 29 NTR 38. That ground only arises if it can be demonstrated that her Worship made an error of law in arriving at her conclusion that the respondent was incapable of earning income in some suitable employment or business up to the date of hearing. There is no such express finding, but there is no ground of appeal that her Worship failed to give reasons for her decision to make awards for the payment of weekly compensation. 38. The argument on the hearing of this appeal was that her Worship had made findings that the respondent was able to earn income in some suitable employment or business, but a reading of her reasons does not support that argument. Her Worship, when considering the claim for redemption, which could only arise if there was a liability to make weekly payments, expressed herself not satisfied that he was permanently and totally disabled. She spoke of the operation for the replacement hip and then continued: "he will not be able to return to any form of work that requires prolonged sitting .... work as a labourer or plant operator would not be within his capabilities .... there is evidence that he would have the capacity to do a range of jobs including work that involves limited clerical skills work in a car sales yard ....". She concluded that he had a partial and permanent incapacity which she went on to assess at 60 per cent. It is clear upon a reading of what was there said, in its context, that she was referring to redemption for liability for future weekly payments. It is implicit from the consideration given to the question of redemption and the awards which were made that her Worship was satisfied as to the appellant's liability to make weekly payments. 39. There is no evidence as to the amount, if any, per week which the respondent was capable of earning in some suitable employment or business prior to the hearing, and the evidence of the doctor could easily have been rejected by her Worship if it was suggested it tended to establish any such capacity. But that is not a matter upon which this Court should venture. It lies outside its jurisdiction on this appeal. 40. There was evidence which her Worship could accept from the doctor as to the loss of the efficient use of a part of the respondent's body in and for the purposes of his employment at the date of the injury. It was argued that the magistrate should have ascertained the nature of the injury which caused the permanent loss of efficiency of the part of the body, and then consider it against the background of the actual employment duties, not just a general type of employment (per Muirhead J in Gunn Developments (NT) Pty Ltd v Edwards, unreported, 12 April 1977). Those comments by his Honour were made in the context of an appeal against the determination on a question of law or fact or both, which was available at that time. The grounds of appeal are now limited to questions of law. Her Worship was well aware from the evidence of the respondent as to his duties in his employment by the appellant at the time of the injury. She also had the benefit of the opinion of Mr Griffiths. In her reasons she paid regard to the evidence of both and expressly accepted the evidence of the doctor. The evidence of Mr Griffiths was given over objection, but there is no appeal against the rulings admitting it. Her Worship was the ultimate finder of fact and she could accept or reject the opinion of the doctor as she thought fit. It need not have been treated in isolation and apparently was not, due regard also being had to the evidence of the respondent. 41. It was not argued that there was no evidence of a particular fact as found. If such an argument had been raised then a question of law would have arisen (McPhee v S Bennett Limited (1934) 52 WN (NSW) 8 per Jordan CJ at 9). His Honour continued: ".... if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence because it is all one way. It can accept all, or some, or none of it." 42. This and other authorities are extensively reviewed by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 where Glass JA, with whom Samuel JA agreed, said: "To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence in the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways." 43. His Honour went on to say that that did not amount to an error of law. Kirby P, in the minority on the point, would treat perversity and completely unreasonable decisions as amounting to errors of law, but does not appear to dissent from the majority in respect of the other descriptions of matters which amount only to error of fact (see Haines v Leves (1987) 8 NSWLR 442 at 469; Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247 at 252). As to perversity and unreasonable decisions see the observations of Dixon J in Darling Island Stevedoring v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 at 643. 44. The final issue goes to her Worship's award for redemption of future liability for weekly payments. She had proceeded to make awards for such payments up to the date of judgment on the basis that the respondent had been incapacitated for work by the injuries and unable to earn any amount in some suitable employment or business. The respondent applied for redemption and there is no statutory guidance as to the principles upon which, or any formula, by which such redemption, if awarded, is to be calculated. A summary of the evidence and of her Worship's findings have been set out above. Although unexpressed, her Worship must have considered that the benefits of the hip replacement would persuade the respondent to undergo the procedure sooner or later and thus his capacity to earn be improved. As to the evidence and findings of fact thereon, they were matters entirely for her worship. However, the exercise of a judicial discretion must be " ... according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself" (per Lord Halsbury L.C. in Sharp v Wakefield (1891) AC 173 at 199). Her Worship does not explain how she arrived at the decision that for the purposes of redemption the respondent had a partial and permanent incapacity which she assessed at sixty percent. Since the redemption is only available in respect of the employer's liability to make weekly payments where the worker is incapacitated for work by the injury, the assessment, on its face, relates only to the degree of that physical incapacity. It does not address the question of the employer's liability to make weekly payments. It fails to consider for example, when it was likely the respondent would return to work, the nature of the work, the amount which he would be likely to earn, what interruptions there may be to his work and the effect that may have upon his earnings, flowing from the need to have periodic hip replacement operations. It may be that her Worship had in mind some or all of those matters or others, including his physical incapacity, but that is not clear. The award of $141,367.20, although calculated by the legal representatives of the parties, was arrived at on the basis of her Worship's assessment. It does not appear how her Worship reached her assessment, but, upon all the facts as found the result appears unreasonable, and this Court may infer that in some way there has been a failure properly to exercise the discretion (House v R [1936] HCA 40; (1936) 55 CLR 499 at 505). "The ascertainment of the lump sum demands ... serious consideration of many variable factors and it should not be assessed by the exercise of a kindly and generous discretion at the expense of the employer or insurer" (per Starke J in Michaelis Hallenstein v Lewis [1944] HCA 3; (1944) 68 CLR 613 at 627). The apparent failure to properly exercise a judicial discretion is an error of law. His Honour ought not to have dismissed the appeal upon that ground. ORDERS 45. We would allow the appeal in respect of his Honour's decision to dismiss the appeal against the award of a sum in redemption of the employer's liability for weekly payment and remit that matter to his Honour for further hearing and determination. 46. We would dismiss all other grounds of appeal and order the appellant to pay 90 per cent of the respondent's costs of and incidental to the appeal to this Court and to his Honour.