JUDGE1 KING CJ This is a Case Stated by the Workers Compensation Appeal Tribunal pursuant to section 99(1) of the Workers Rehabilitation and Compensation Act 1986. The question of law for the opinion of the Court is stated as follows: "(i) For the purposes of determining the lump sum payable for non-economic loss pursuant to Section 43(3) where a worker who has suffered a permanent disability which is compensable under the Workers Rehabilitation and Compensation Act 1986 and which is not mentioned in the Third Schedule to the said Act is the decision maker when having regard to the extent to which the worker's ability to lead a normal life has been impaired by the disability, required to assess that said extent on:- (a) a subjective basis or (b) an objective basis." 2. The first three subsections of section 43 are as follows: "43. (1) Subject to this Act, where a worker suffers a permanent disability and the disability is compensable under this Act, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum. (2) Subject to this section, the lump sum shall be a percentage of the prescribed sum determined by reference to the third schedule. (3) Where a compensable disability in respect of which compensation is payable by way of a lump sum under subsection (1) is not mentioned in the third schedule, the lump sum shall be fixed by the Corporation

as a percentage (not exceeding 100 per cent) of the prescribed sum having regard to- (a) the nature of the disability; and (b) the extent to which the worker's ability to lead a normal life has been impaired by the disability." 3. Non-economic loss is defined in section 3 to mean : "(a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life; (d) any other loss or detriment of a non-economic nature: " 4. The process of fixing a percentage as required by section 43(3) must necessarily be one of assigning the non-economic loss resulting from the disability under consideration a place in a scale in which 100 represents the most serious non-economic loss which can result from a disability and the smallest fraction, subject to the principle that the law takes no account of trifles, the least serious. In assigning to the loss under consideration the appropriate place in the scale the Corporation is required to have regard to both factors specified in paragraphs (a) and (b) of subsection (3). 5. The expression "the nature of the disability" in paragraph (a) is apt to include all aspects of non-economic loss other than those covered by paragraph (b). Under that head the Corporation is required to assess the degree of pain and suffering, loss of amenities of life, loss of expectation of life and other losses or detriments of a non-economic nature. Paragraph (b) focuses on a particular aspect of non-economic loss and must be understood in the light of what is comprehended by paragraph (a). 6. Non-economic loss is essentially subjective in character. It is the adverse impact, other than that of an economic nature, of the disability upon the disabled individual. It is necessary, therefore, in assessing the gravity of the non-economic loss, to consider its effect upon the disabled individual including that individual's lifestyle. It is not to the point that the disabled individual is precluded from engaging in activities which others might regard as a significant aspect of a normal life for them, if the particular individual would never have engaged in those activities so that they were not at the time of the compensable trauma an actual or contemplated part of his normal life. Conversely deprivations of an activity which forms part of the normal life of the disabled individual must be taken into account notwithstanding that it might not be part of the normal life of the generality of other people. Moreover the degree of the adverse non-economic impact of the disability must be assessed by reference to the importance of the deprivation suffered, to the disabled individual's normal life, irrespective of how it might be regarded by others. 7. What might be regarded as a normal life for one person would not be a normal life for another. What is a normal life for a person is determined by factors such as age, sex, innate and acquired characteristics and capacities, health, habits and inclinations. "Normal life" as used in the section means no more, in my opinion, than the life which the individual would have been capable of leading and would be expected to lead, if he had not suffered the disability which is the subject of the compensation. 8. I would answer the question as follows: Section 43(3)(b) requires the Corporation to have regard to the extent of impairment of the worker's ability to lead the life which he would have been capable of leading and would be expected to lead if the worker had not suffered the compensable disability.

JUDGE2 MILLHOUSE J I agree with the order of the Chief Justice for the reasons he has given.

JUDGE3 DEBELLE J The question of law stated for the opinion of the Court suggests that a clear dichotomy exists between two methods of assessment of non-economic loss required by s.43(3) of the Workers' Rehabilitation and Compensation Act, 1986 ("the Act"). That is not the position. Non-economic loss is defined in s.3 of the Act to mean: Each of those four aspects of non-economic loss will be considered by the decision maker so far they are relevant in any particular case. Section 43(3) requires that when each relevant aspect is being considered, regard to the nature of the disability and to the extent to which the worker's ability to lead a normal life has been impaired by the disability. There must be a subjective element when assessing the loss in respect of each of the factors which constitute non-economic loss, in a sense that regard will be had to the particular circumstances of the individual whose loss is being determined. When assessing pain and suffering, regard will be had to the nature and extent of the actual pain and suffering experienced by the disabled worker. The fact that the same injury might cause more pain and suffering to one worker than another is not a relevant consideration. When determining loss of amenities of life, the extent of the loss actually experienced by the disabled individual will be assessed. The extent of the loss of amenities of life caused by a particular disability in all likelihood will vary from individual to individual. For example, the loss of a hand will be likely to cause a greater degree of loss of amenities of life to a professional musician than to a person who is not. Similar considerations apply when assessing the loss under the other headings of non-economic loss. Plainly there is a subjective element in determining non-economic loss, because regard will of necessity be had to the particular impact of the disability on the disabled worker. 2. The difficulty created by s.43(3) is to determine how the decision maker should make these necessarily subjective assessments, while at the same time complying with the requirement in paragraph (b) of subsection 3 of s.43 to have regard "to the extent to which the worker's ability to lead a normal life has been impaired by the disability". The use of the expression "a normal life" suggests that there is some kind of standard or usual pattern of life enjoyed in common by all the community. The word "normal" denotes conformity to a standard or pattern: see the meanings of "normal" in the Macquarie Dictionary and Oxford English Dictionary. But as the Chief Justice has pointed out in his Reasons for Judgment, what might be regarded as normal life for one person would not necessarily be a normal life for another. The use of the expression "a normal life" suggests that Parliament intends to exclude some kind of extreme occupational recreation from consideration. Had it not intended to do so, paragraph (b) subsection 3 of section 43 could have been expressed in these terms: "the extent to which the worker's ability to lead his or her life has been impaired by the disability". Alternatively, having regard to the fact that the definition of non-economic loss includes loss of amenities of life, loss of expectation of life and any other loss or detriment of a non-economic nature, it could have been possible to have omitted paragraph (b) altogether. The expression "the extent to which the worker's ability to lead his or her life has been impaired by the disability" is to express in different terms the factors other than pain and suffering noted in the definition of non-economic loss. What are the departures from normal life which Parliament intended to exclude? Merely to state the question is to illustrate the difficulty in applying the notion of "a normal life" when considering say either loss of amenities of life or any other loss or detriment of a non-economic nature. A worker might also be an Olympic athlete, or a sky-diver, or an expert hang-glider. The injury might have the consequence that the worker cannot engage in these recreational activities. Is it intended that the worker is not to be compensated under the heading of non-economic loss because it might be said that these activities are not part of a normal life? If so, by what criterion does one determine what activities, recreational, artistic or otherwise, are not part of a normal life? There is no logical answer to that question. 3. At the same time, it must be noted that the table in the Third Schedule represents an arbitrary assessment of the impact of the types of injury listed there. The loss of a hand will entitle a worker to 80% of the prescribed sum whether that worker also be a professional musician or not. To that extent, the Third Schedule might be said to pay little regard to the idiosyncracies of the injured worker and any individual talent the worker might have. The existence of a table contained in the Schedule might be said to point to some kind of standard or norm. How then is the decision maker to proceed when making a determination pursuant to s.43(3)? At the end of the day, the percentage to be fixed in accordance with s.43(3) is not susceptible to precise mathmatical calculation. Essentially, it represents an act of judgment amounting to an assessment, on a broad axe basis, of total monetary compensation for the disability in question having regard to the various factors which constitute non-economic loss: cf Uniroyal Pty Ltd v. Guastella (1978) 45 SAIR 13, 30. Where a worker in consequence of injuries received is unable to pursue, say, a recreational or artistic activity which he pursued before the injury, should the decision maker give some weight, but not undue weight, to that fact? In contrast, an injured worker might be suffering from some physical handicap when he incurred the injury. That worker should not necessarily be entitled to the same compensation as a worker who did not suffer from the same physical handicap. 4. The fact remains that the Third Schedule imposes some kind of norm or standard which does not appear to give any particular weight to the individual's circumstances or the talents of a worker. 5. When assessing non-economic loss should the decision maker have regard to all of the factors which are relevant in any one case, while at the same time, not giving any undue weight to any idiosyncracy or individual talent of the disabled worker? This would appear to be the inevitable conclusion to which one is driven by the expression "a normal life" when regard is also had to the fact that the decision maker must attempt to make an assessment which has regard to the Third Schedule.