GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and HANDLEY JJA 9 and 10 April 1990, 18 December 1990 [1990] NSWCA 78 KEY WORDS: APPEAL — credibility — relevance of videotape evidence viewed on appeal EVIDENCE — credibility — whether videotape evidence contradicted oral testimony NEGLIGENCE — quantum Motor car accident — personal injuries — trial judge implicitly accepts plaintiff's oral testimony — videotape evidence of plaintiff dancing at wedding — assessment of damages. Held (per Mahoney and Meagher JJA, Handley JA dissenting): There was nothing in the videotape that demonstrated palpable error in trial judge's finding. Assessment of damages — minor arithmetical error. Mahoney JA I agree with the judgment of Meagher JA. Meagher JA This appeal arose out of a motor car accident which took place on 28 June 1985, in which the plaintiff, a taxi driver then aged 23 years, was injured in the head and the right knee. The defendant appeals on the issue of damages only, liability being conceded. His Honour Judge Pain DCJ awarded the plaintiff a verdict in the sum of $146,972.60. That sum had the following components: 1. Past economic loss $42,900.00 Interest thereon 9,009.00 2. Future economic loss 52,332.50 3. General damages 30,000.00 4. Fox v Wood component 2,464.34 5. Out-of-pocket expenses 10,266.76 The appellant's challenge is limited to the first two of those components. Immediately after the accident the plaintiff was taken +o St George's Hospital where he was admitted for four to five hours and his symptoms were noted as being a tender forehead, occiput, cervical spine C2-C7 and right knee. He was then sent home with analgesics. His neck and right knee continued to be painful, and pain developed in his lower back, for which condition his general physician prescribed the use of a neck collar, analgesics and two weeks rest. He was referred to an orthopaedic surgeon. A month after the accident it was noted by his treating doctor that his back pain was getting worse, and that whilst his neck and right knee were still sore his neck movements had improved. He continued to complain of pain and disability in the neck, lower back and right knee with consequent inability to resume work. In November 1985 he was admitted to Castlewood Hospital at Petersham where the doctor performed a right medial meniscectomy and manipulation under anaesthetic of the cervical and lumbar spine with epidural injections. He was then discharged and advised to use crutches, but they did not improve his condition. He also complained of headaches and dizziness. In May 1988 he was again admitted to hospital for 2 UNREPORTED JUDGMENTS manipulation under anaesthetic of the cervical and lumber spine and epidural injection, but to no effect. His case was heard on the third anniversary of the accident. That, in summary, was the evidence for the plaintiff. The oral testimony of the plaintiff himself was supported by his wife and by medical reports. For the defendant several doctors gave evidence to the general effect that the plaintiff was, about a year after the accident, fully fit for work. Counsel for the appellant submitted that, as his Honour made no express finding for the plaintiff's credibility, we should find for ourselves that he was totally disabled for almost one year and thereafter fully fit. This we cannot do. His Honour expressly found that by May 1988 there had been no apparent improvement in the plaintiff's condition, and he also expressly found that in the three years between the accident and trial his condition remained "more or less static". His Honour could only have come to those conclusions if he believed the plaintiff and disbelieved the defendant's medical experts, as he was entitled to do. There was therefore a finding in his favour based on his credibility. We were then urged to disregard the learned judge's findings because of a video which showed the plaintiff indulging on one occasion for 15 minutes in some mild terpsichorean activity at a Lebanese wedding. I quite fail to see what significance we can attach to this, as it does not demonstrate any palpable error in his Honour's finding. It is not as if the plaintiff became a professional ball-room dancer. The plaintiff gave evidence (which his Honour obviously accepted) that at some time in 1986 he became fit for part-time casual work and that on a number of occasions between accident and trial drove five-hour shifts; but that despite his best efforts he was unable to obtained regular work. No records of his part-time work were kept. On this evidence his Honour found the first component by assessing a continued loss of $275 nett per week for the whole three-year period between accident and trial, the figure of $275 representing a substantial discount on the figure the plaintiff would have earned had he been in full time employment. This discount reflected an allowance for "unquantified part time work undertaken". The appellant submitted that the plaintiff should have been awarded a sum more precisely calculated to reflect an initial total disability followed by a much reduced disability. But no greater precision could be achieved. His Honour did not know - because the evidence did not disclose it - exactly when the plaintiff became fit for part time work, nor the dates or remuneration or precise extent of the part time work undertaken. In these circumstances there is no reason to disturb the broad approach taken by his Honour. On the second component of his Honour's verdict, future economic loss, his Honour considered that the plaintiff would be virtually totally disabled for a period of one year after trial and thereafter perpetually disabled to the extent of $50 a week. Two attacks were made on this, one general and one particular. The general attack was that no total disability should be found, but granted the findings of fact this submission must fail. The particular attack was that his Honour made a minor arithmetical error resulting in an overcompensation in the amount $1,566.00. This error was conceded. The result is that the following orders should be made: 1. Appeal allowed 2. Judgment and verdict for the respondent in the sum of $146,972.60 be set aside. URJ = GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS (Handley JA) 3 3. In substitution therefore, judgement and verdict be entered for the respondent in the sum of $145,406.60. 4. The substituted judgment and verdict to take affect as from 24 June 1988. 5. The appellant should pay the costs of the respondent both at first instances and on appeal. Handley JA The Government Insurance Office has appealed to this Court from thejudgment of his Honour Pain DCJ awarding $146,972.60 as damages to the respondent for injuries he sustained in a motor vehicle accident. Liability was in issue at the trial but is no longer in contest. I note however that although the respondent, who was driving a taxi at the time of the accident, was not wearing an available seat belt and although this fact was referred to in one of the medical reports tendered by the appellant and in another tendered by the respondent no attempt was made to rely upon contributory negligence as a partial answer to the claim. Such a defence may have failed on the facts but there is nothing in the material before this Court which justifies or explains the appellant's failure to rely upon it. The accident occurred on 26 June 1985. The plaintiff's car was struck on its left by a vehicle insured by the appellant which failed to comply with a give way sign where, in any event, the respondent's vehicle had the right of way. The plaintiff was thrown forward and hit his head and his right knee on the dash board. It will be apparent that both injuries may possibly have been entirely prevented by the use of a seat belt. The respondent suffered injuries to his neck, cervical and lumbar spine and right knee. He was taken to St. George Hospital and allowed to go home after four or five hours. The trial judge made the following findings as to the plaintiff's symptoms and the treatment he had received: "His neck and right knee continued to be painful and pain developed in his lower back for which conditions he consulted his general practitioner... who prescribed the use of neck collar, analgesics and two weeks rest. On referral by his family doctor the plaintiff was then sent on 5 July... to Dr Guirgis an orthopaedic surgeon... the plaintiff was reviewed by [his general practitioner] on 16 July... when it was noted that his back pain was getting worse and that while his neck and right knee were still sore neck movements had improved... On 17 November 1985 the plaintiff was admitted by Dr Guirgis to Castlewood Hospital... where the doctor performed a right medial meniscectomy and manipulation under anaesthetic of the cervical and lumbar spine with epidural injections... The plaintiffs condition, despite earlier favourable prognoses from his treating doctors, has remained more or less static. On 2 May 1988 he was again admitted to hospital for manipulation under anaesthetic of the cervical and lumbar spine and epidural injection, again it appears without any apparent improvement in his condition". The trial judge made the following findings in relation to the medical evidence: "T note that while Dr Guirgis reports a demonstration of spasm... on 5 July 1985 and 5 May 1988, Dr Searle... on examination of the same areas of the plaintiff on 21 October 1986 and 7 March 1988 reports no spasm. I further note that Dr Guirgis, after seeing the plaintiff on 14 July 1986... was of the opinion that continued disability in the right knee was 'partly due to relative quadriceps insufficiency and partly due to retropatellar chondromalacia'. The relative quadriceps insufficiency is presumably referable to his finding on 5 July 1985, only a week after this accident, that the right quadriceps measured three centimetres less whereas at 14 July 1986 the same measurement had improved to 4 UNREPORTED JUDGMENTS one centimetre less and apparently remained at that same level thereafter since the measurement he made on 5 May 1988 was also | centimetre less. I note the concurrent opinions of Dr Ellis... and Dr Rasanayakam... both qualified for the plaintiff, assessing disability in the right lower limb at 15%." His assessment of the plaintiff concluded: "From the whole of the evidence adduced I am satisfied that a significant part of the plaintiff's disability, particularly referable to what is described by the doctors variously as soft tissue injury or musculo ligamentous strain to the cervical and lumbar spine, is likely substantially to resolve within a reasonable period after the pressures on the plaintiff of this litigation cease". His Honour's award in favour of the respondent was made up as follows: Past economic loss 42,900.00 Interest 9,009.00 Future Economic loss 38,335.00 General Damages 30,000.00 Fox v Wood component 2,464.34 Out of Pocket Expenses 10,266.76 146,972.60 Normally an appeal by a defendant in a case such as this would have been hopeless because the findings of the trial judge and his award of damages necessarily reflect his assessment of the plaintiff who gave evidence and was cross-examined before him. The appellant however submitted that in the present case this Court is entitled to reverse the findings made by the trial judge, because of the evidence in a video film taken of the respondent on 25 April 1987 when he attended a wedding at the Coronation Hall Arncliffe. The film was shown to the trial judge and viewed by the respondent and by two doctors called by the appellant at the trial. Thereafter the respondent was recalled and his wife also gave evidence. The trial judge briefly referred to this film in his reasons saying: "I take into account the degree and freedom of movement of the plaintiff shown on the video." This Court saw the film twice during the argument of the appeal. On the first occasion the colour was not visible and there was some confusion as to the identity of the respondent. On the second occasion the colour was visible and a positive identification of the respondent was made which was not in dispute. The respondent was born in Lebanon on 24 September 1962 and came to Australia in 1977. He was 26 at the time of trial. The film was taken at the marriage of one of the respondent's female cousins and the activities shown in the film included much Lebanese dancing in which the respondent fully participated. Before referring to the respondent's activities shown in the film it will be appropriate to refer to his oral evidence at the trial before and after he saw the film and to the history of his symptoms which he gave to the doctors who were qualified on his behalf and on behalf of the appellant. The respondent in his evidence in chief said that he had pain in his lower back "very often" and that it was "not much" improved since the accident. He said that he was on pain killers for the pain in his neck and back "most of the time". He said that he had pain in his right knee which had not got better since the accident and that the knee swells when he walks, stands or drives a car. He gets pain in URJ = GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS (Handley JA) 5 the knee after he walks "about twenty metres, thirty metres" and the pain is there "constantly" and gets worse when he walks. He said that he tried running after the accident but fell because of his knee. He is not able to stand "for a long period". When he is at home, walking around or doing activities such as that he notices "locking" in his knee apart from the pain. He described his difficulties in having sexual relations with his wife. "Before the accident I could move a lot... but now I can't move" and that when he adopted a position on top of his wife he got pain in his knees from "bending, the movement". The respondent said that he had attempted to resume his pre-injury occupation as a taxi driver but after an hour's driving he experiences pain in his back and knee, dizziness and headaches. When he tries to walk up stairs he walks "like an old man. My knee locks and it doesn't help me up the stairs". He used to go to discos before the accident but has not since "because I am not the same as before". At home he does not "do anything [my] wife wants me to do. She asks me sometimes to cut the grass, to clean the dishes, sometime to sweep the floor, to do anything in the home. I can't do it." In cross-examination he said that he had told Dr Rasanayakam that he found it difficult to sit or walk or stand for more than short periods. He answered "yes" to the question "anything that causes you to move up and down on your right leg hurts the right leg does it?" He said he could dance "a little" but his knee locks when he stands up and walks around, and if he moves up and down on the right leg and exerts pressure on it his knee locks and he falls over. When he was asked about attending a wedding on 25 April 1987 some fourteen months before the trial at the Coronation Hall, Arncliffe he said he could not remember. He said he went to Lebanese weddings frequently and had danced at weddings "sometimes", "at all of them" and "not at all of them'. He described Lebanese dancing as "fairly vigorous", "physically arduous" and "hard work", it involved "stomping up and down" on his right leg. He said that when he engages in Lebanese dancing the right leg does not give way but "hurts me a lot and swells". The dancing involves "balancing" on his right leg and taking all his weight on it. He does it for twenty minutes or half an hour although he gets dizzy. He agreed that he had told Dr Searle, one of the doctors qualified on his behalf that he had "a very painful and stiff right knee". Before he was shown the film he said in further cross-examination that he danced to enjoy himself and that he did not fall over but became dizzy. "After I paid the price" but he was prepared to carry out vigorous dancing and pay the price after. He maintained his evidence in chief that he experienced pain in his knee after walking 20 metres but nevertheless he could dance with "a lot of rapid physical movement" and take his weight on his right knee for twenty minutes although he had pain in doing so. He had not been looking for work as a cab driver "because I am sick". His right knee was "constantly" in pain and his back also. The pain in his back and knee had generally got worse since the accident and was "much worse" at the time of the trial than shortly after the accident. He experienced pain which travelled down his right thigh and leg from his right buttock to his right knee. After he was shown the film he said that he now remembered the wedding as the bride was his cousin and that he enjoyed himself that evening. He maintained that his knee was "constantly painful" and locks when he does anything physically active. The day after the wedding his back and leg were very painful. He had danced at the wedding for twenty minutes then taken "breaks" and that he was drinking at the wedding and alcohol made him "forget" his pain. 6 UNREPORTED JUDGMENTS The medical reports of Dr M F Guirgis of 6 August 1986, 1 June 1988 and an undated report following a final examination of the respondent on 5 May 1988, the medical report of Dr Ellis of 7 April 1986 and the reports of Dr Searle of 23 October 1986 and 10 March 1988 and the report of Dr Rasanayakam of 18 March 1988 all contain histories of symptoms of pain and disability reported by the respondent to those doctors which broadly corresponded with his evidence before he was cross-examined about dancing at the wedding. By way of example Dr Rasanayakam reported on 18 March 1988: "He is still complaining of frequent headaches... he is also complaining of pain in his neck. It is intermittent and brought on by activity. The movements of the neck are painful. He finds it difficult to keep his head in one direction for any length of time. He is also complaining of pain in his back. It is constant and is aggravated with movement and activity. Due to the disabilities present, he finds it difficult to sit, stand or walk for more than short periods. He finds it difficult to bend freely or lift anything even moderately heavy. He cannot drive more than short distances. He has problems with sex." Dr O' Donovan saw the plaintiff on 26 February 1988 and his report of the same day is in evidence. He was called by the appellant at the trial. He said in his report that the respondent "demonstrated no disability on clinical examination today". The doctor also expressed the opinion that the respondent's complaints of pain while driving a taxi were not "the medical history of cartilage injury to the knee nor is it the history of a ligamentous strain of the cervical or lumbar spine". In his oral evidence he said that at his examination of the respondent "I could not find any abnormality". He said that the respondent by engaging in the activity shown in the film declared himself fit for that activity. He said that the Lebanese dancing caused the dancers to bear weight more heavily on the right foot than the left and that on one occasion the respondent was involved in "'a very short period of vigorous dancing,...involving both legs equally which included quite vigorous movements with one leg off the ground." Dr Comins said that the history of complaints of pain given to Dr Searle referred to in his report of March 1988 were inconsistent with the activities undertaken by the respondent shown in the video and that he was fit for taxi driving. He said that the musculo ligamentous strain received by the respondent from his accident should, at his age, have disappeared within six to nine months. He also agreed that at his examination of the respondent there were "not really" any objective signs of disability. Because of the difficulty in identifying the respondent in the video film while it was shown in Court on the first occasion and the resulting confusion I subsequently viewed the film privately on a machine which gave good colour and enabled the respondent to be clearly identified because of the bright blue shirt he was wearing. I was also able to reverse the film and look at particular incidents more than once. The respondent twice jumped from a four foot high dais onto the dance floor, landing on both legs without favouring his right leg. He was described by Dr Comins as a big, strongly built man weighing 86 kilograms and 180 centimetres in height. These jumps indicate the absence of any pain or disability in the right knee and the absence of any fear on his part that the jumps might cause pain. The video twice showed the respondent running on the dance floor without any apparent compulsion to do so, without his knee locking, without falling over, and without any appearance of pain or disability. URJ = GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS (Handley JA) 7 The video commenced with the respondent holding a young child, not his own, on his right shoulder and pointing in the direction of the camera. Again this was entirely voluntary activity on his part indicating the absence of pain or disability in the back or neck when lifting the child to his shoulder. I carefully watched the respondent while he was engaged in the Lebanese dancing. Much of the dancing is carried out at a slow, repetitious rhythm involving the movement of a group of dancers linked in a line from left to right. It is clear that in doing so the dancers place their weight on their right foot every few seconds as they step to the right. Dr Comins said that this dancing would put considerable strain on the right knee joint. During the rhythmic dancing the respondent, as shown in the film, did not favour his right leg in any way. At no time did his dancing appear to differ from the dancing of those next to him. No wince or expression of pain appeared on his face. Moreover, as mentioned in the oral evidence, on one occasion he engaged in vigorous dancing alternately kicking his legs high in the air. The film did not show any indication that he experienced any dizziness. The film itself ran for over twenty minutes but in the light of the respondent's own evidence that he had danced at the wedding for twenty minutes and then taken "breaks" it is clear that it does not cover the whole of his physical activities at the wedding. Having seen the video, and with the benefit of having watched it privately after judgment had been reserved, I can only conclude that the oral evidence of the respondent is decisively contradicted by the video. Dr Searle, who qualified for the respondent, in his report of 10 March 1988 and Drs O' Donovan and Comins in their 1988 examinations were not able to discern any clinical evidence to support the respondent's complaints of pain and disability. The plaintiff's case for past and future economic loss and past and future general damages rested largely upon the credibility and reliability of his evidence. The medical evidence on behalf of the plaintiff consisted of his hospital records and the reports of doctors who had treated or examined him. None of those doctors had seen the video film and the histories of pain and disability they had been given were arguably falsified by the film. None of the plaintiff's doctors were called in reply to deal with the film. While some or all of the respondent's doctors may not have been available at short notice no attempt was made to prove in evidence that this was the case. The plaintiff was cross-examined about the film, Drs O'Donovan and Comins gave evidence about it, and the film itself was tendered on Tuesday 21 June. The case was again before the trial judge on 22 and 23 June in relation to an application by the defendant to re-open the evidence and no application was made on behalf of the plaintiff to re-open for the purpose of calling any of his doctors. In accordance with the principles applied in Jones v Dunkel (1959) 101 CLR 298 the Court therefore should infer that the evidence of the plaintiff's medical witnesses in relation to the film would not have assisted the plaintiff. I do not overlook the respondent's evidence that he paid the price for his dancing "the next day" and that alcohol helped him "forget the pain". However his evidence given before he was reminded about this wedding referred to pain experienced immediately after walking 20 metres and not the next day. After seeing the film he said the he danced because he was a man and wanted to enjoy himself at the wedding but this evidence sits uneasily with his evidence that the pain in his knee after the accident prevented him having sexual intercourse with his wife in the position and with the frequency that he had before the accident. 8 UNREPORTED JUDGMENTS Before attempting to give effect to the views I have formed of the respondent's credibility and reliability in the light of the film I must remind myself of the legal principles which guide and restrict the power of an Appellate Court to reverse the findings of fact of the trial judge based on his explicit or implicit assessment of the credibility of oral evidence. In Brunskill v Soverign Marine Insurance Co. Limited (1985) 59 ALJR 842 at 844 the High Court said: "The authorities have made clear the distinction which exists between an appeal on a question of fact which depends upon a view taken of conflicting testimony, and an appeal which depends on inferences from uncontroverted facts. In the former case, to use the well known words of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 36 at 47...'not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case." More recently in Abalos v Australian Postal Commission (15 November 1990) McHugh J speaking with the approval of the other members of the High Court in that case said: "Where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion' Watt or Thomas v Thomas [1947] AC 484 at 488". In SS Hontestroom v SS Sagaporack (above) at 50 Lord Sumner further said: "Ts there any glaring improbability about the story accepted, sufficient in itself to constitute a governing fact, which in relation to others has created a wrong impression or any specific misunderstanding or disregard of a material fact...?" The decision of the High Court in Voulis v Kozary (1975) 50 ALJR 59 is of particular significance in the present case. There a unanimous High Court reversed a majority decision of this Court and a decision of the trial judge explicitly based on his assessment of the credibility of witnesses. The case involved a disputed share in a lottery ticket which had won $200,000. The High Court held that the findings by the trial judge could not stand with the evidence provided by a video film and a tape recording. Gibbs and Stephen JJ said at 65 "\..we are fully appreciative of and have we trust, given full weight to those special advantages which a judge at first instance must always possess over an appellate court on matters of fact, particularly when involving conflicting oral testimony and the credibility of witnesses; had the case turned upon simple matters of credibility, bereft of the rather special evidentiary material present in this case, we would have been reluctant indeed to disturb the findings of the learned trial judge expressed in his careful and detailed reasons for judgment... the special evidentiary circumstances of this case [i.e. the film and tape recording etc.] have called for a review of the facts and the findings on them, such review has convinced us that the ultimate finding that Voulis was not a subscriber to the winning lottery ticket, was wrong and was not one which was reasonably open on the whole of the material before the learned trial judge." In my respectful opinion the film in the present case does demonstrate a "glaring improbability" about the oral evidence of the respondent and in itself constitutes a "governing fact". This Court should therefore reassess the damages URJ = GOVERNMENT INSURANCE OFFICE OF NSW v KHAMIS (Handley JA) 9 in the light of the respondent's condition demonstrated in the film rather than in the picture he attempted to paint in his oral evidence and in the histories that he gave the doctors. The trial judge assessed his past economic loss at $275.00 net per week. Dr O'Donovan and Dr Comins both expressed the opinion that the respondent was able to drive a taxi, if motivated to do so, by 25 April 1987. Neither doctor was able to detect any continuing abnormality in the right knee. It is apparent therefore that the right medial meniscectomy performed by Dr Guirgis on 17 November 1985 has been successful, in achieving a complete recovery of his right knee in the short and medium term. Dr Comins expressed a firm opinion that a man with the age and general health of the respondent should have completely recovered from the effects of the soft tissue injuries to his neck and back within a period of six to nine months after the accident. In these circumstances the respondent's past economic loss should be assessed at $275.00 per week for a period of nine months and interest should be allowed down to the date of judgment. The respondent's general damages should be assessed to properly compensate him for the pain and disabilities experienced during and after the accident and for the period of nine months required for him to recover from the effects of his soft tissue injuries. Both Dr O' Donovan and Dr Comins expressed the view that the respondent faced an increased risk of osteo-arthritic changes to his right knee in later life. This must be reflected in the award of general damages and also attracts an award of damages for future economic loss. I would award $20,000 for general damages and $15,000 for future economic loss. In my opinion therefore the judgment in favour of the respondent for $146,972.60 should be set aside and there should be substituted a judgment for $62,911.10 made up as follows: Past economic loss 10,725.00 Interest 4,455.00 General damages 20,000.00 Future economic loss 15,000.00 out of pocket expenses 10,266.76 Fox v Wood component 2,464.34 62,911.10 I would therefore propose that the following orders be made: 1. Appeal allowed. 2. Set aside the judgment in favour of the respondent for $146,972.60 and substitute judgment for $62,911.10 to take effect from 24 June, 1988. 3. Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act. 1. Appeal allowed 2. Judgment and verdict for the respondent in the sum of $146,972.60 be set aside. 3. In substitution therefore, judgment and verdict be entered for the respondent in the sum of $145,406.60. 4. The substituted judgment and verdict to take affect as from 24 June 1988. 10 UNREPORTED JUDGMENTS 5. The appellant should pay the costs of the respondent both at first instances and on appeal. Counsel for the Appellant: PW NEIL 5 Solicitors for the Appellant: GM MEADOWS Counsel for the Respondent: PJ O'; CONNOR Solicitors for the Respondent: SOMERVILLE and CO HEARING