Cyril Whiting v Roads & Traffica Authority of NSW [2001] NSWCC 60

Compensation Court of New South Wales

CITATION : Cyril Whiting v Roads & Traffica Authority of NSW [2001] NSWCC 60 revised - 4/09/2001 Cyril Whiting PARTIES : v Roads & Traffic Authority of NSW MATTER NUMBER(S) : 57603 of 1999 JUDGMENT OF: Geraghty J CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: Brown v Downard Brown Pty Ltd 17 NSWCCR 275; CASES CITED: Miller v RC and DN Skinner 16 NSWCCR222; Zickar v MGH Plastic Industries Pty Ltd 13 NSWCCR 680 DATES OF HEARING: 06/09/00,08/02/01,27/03/01 EX TEMPORE JUDGMENT DATE : 03/28/2001

FOR APPLICANT:MR A COOLEY instructed by Robb & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT:MR TRAINOR instructed by Leitch Hasson & Dent

JUDGMENT: 1. Cyril Whiting claims weekly benefits from 1 April 1999 to date and continuing, lump-sum payments for neck and back impairments, for loss of use of his left arm at or above the elbow, and payment of medical expenses. 2. The claim was based on two incidents, on the nature and conditions of the employment, and on the provisions of s 15 and s 16. The two incidents were said to have occurred in August 1998 and on about 13 November 1998. The nature and conditions of his employment as a heavy machine operator and later as a truck driver, labourer and street maintainer extended from 1970 to 1 April 1999. The disease allegation was that his diseased neck and back were caused, or alternatively aggravated, by the hard physical work over many years. 3. Counsel for the respondent informed me that the issues were: firstly, whether the two incidents as pleaded occurred, and if they did, whether they had caused any incapacity, impairment or loss; secondly, whether the applicant's left shoulder condition resulted from the nature and conditions of the employment, or from any disease process. The third issue was that of nexus. The respondent asserted that the seriously disabling condition of the applicant really resulted from age since he was born in June 1937 and did not result from any work-related incident or process. The respondent also questioned the extent of the applicant's incapacity. Lengthy submissions were made about how I should interpret the provisions of s68B and I was referred in detail to the decisions of Neilson J in Brown v Downard Brown Pty Ltd 17 NSWCCR 275 and Miller v R C and D N Skinner 16 NSWCCR 222. 4. The parties agreed that the current weekly wage rate applicable for the applicant is $600 per week and Exhibit D (which was admitted without objection and was not contradicted by evidence from the respondent) shows that the probable weekly earnings, but for the injury, would have been $760 per week. 5. The applicant is now approaching 63 years of age. He appeared to be a simple man who had worked hard all his life. He was not able to read or write, and lived in a rather remote area of the south coast. He was not a very communicative person, (information needed to be prised from him), nor was he a regular attender on doctors. Mr Trainor, counsel for the respondent, very properly conceded that the applicant's evidence and credit were in no way contradicted, that the submissions he made would not be based on the conclusion that the applicant was telling lies so much as on his inability to remember and on his silence about certain matters. 6. Exhibit E is a record of a meeting between the applicant, described as a plant operator, Barry Crane, the ganger, and Michelle Vitler, the health services officer, a meeting which occurred at Gundagai depot office on 1 April 1999. At this meeting, according to the record, Barry Crane had expressed concern about the applicant's condition and his ability to fulfil his duties as a plant operator/labourer. The crew consisted of only two people, Barry Crane himself and the applicant. Cyril mentioned that he finds himself unable to do a lot of the duties required because of his restricted arm movement. He suffers agonising pain in his left arm and has trouble lifting it above a certain height. 7. The document (Exhibit E) was signed by Mr Whiting and by the other two attendees. 8. Exhibit B is a series of radiological reports which were described by Mr Cooley as reading like a war zone. They certainly refer to significant radiological findings which would point to considerable problems. The CT scan of 18 November 1998 showed multiple problems in the lumbar disc at different levels, and serious problems in the cervical spine, also at multiple levels. I do not propose to recite the details contained in the reports, but one only has to read them to conclude that the applicant could not be without serious problems at work. 9. The various assessments which medical practitioners have made of the applicant's conditions are as follows: firstly, as to the applicant's neck impairment, Dr Brooder, 22 per cent; Dr Clark, 20 per cent and Dr Perrott, 15 per cent: Secondly, as to the applicant's left arm loss, (and in the same order), 30, 10 and 30 per cent, and thirdly, as to the applicant's back impairment, (again the same order) 24, 10 and nil percentage. 10. The applicant was employed by the Roads and Traffic Authority as a plant operator working a bulldozer from 1970 to 1993, and thereafter, until 1999 when he retired on 1 April, he worked in a road gang, driving a truck, labouring and maintaining the roads. He ceased work on 1 April 1999. 11. In 1982 Whiting sustained a neck injury and, even though he had had no time off and had continued doing normal duties, he received some treatment from a chiropractor for about three or four years, about once a month. Whiting also complained (or remembered) that in 1987 he had had some pain in his right leg. 12. In August 1998, he said, he was driving a truck down the Talbingo mountain when he suddenly suffered neck and right shoulder problems. These events were described by him, and recorded in the transcript at pages 6 and 7. He said that he had recovered after a while, and he had received no treatment, it would seem. He had suffered an onset of back problems for about two years before 1998. These problems had appeared slowly and insidiously. In March 1998 he was suffering right leg pain at work, then, on 11 or 13 November 1998 or thereabouts, an incident occurred when he was removing leaves from a guttering at Tumut. He was on a roof and, though he was using his right arm mainly, he noticed symptoms in his left shoulder. He consulted Dr Tait whose reports are Exhibit 1. 13. The first report which is addressed to Dr Martin Jude and is dated 26 November 1998, informed the neurologist that his patient had had longstanding cervical spondylosis which had been demonstrated radiologically over 10 years ago: Over the past few weeks Whiting had experienced pain, weakness and paraesthesia in the left arm, particularly in the distribution of the C5 nerve. He also seemed to have some deltoid weakness on the right but no other neurological signs. 14. The report to Dr Jude also stated, There were no neurological deficits detected. Whiting was referred for an x-ray or a CT scan, and to Dr Jude for treatment whose reports are Exhibit 2. 15. Dr Jude began treatment on 16 December 1998. His is a strange report because to a very large extent it concentrates on the applicant's back. It recorded that his patient had diffuse leg symptoms and identified recent problems which dated from April 1998, with a burning sensation, variably on the inner aspect of his right calf, the sole or the dorsum of the foot and which initially extended up to the inner aspect of his thigh, involving the penis and scrotum. 16. On examination Dr Jude noted absent ankle-jerks bilaterally, reduced but present knee-jerks, bilateral flexor plantar responses, and a paucity of objective neurological sensory findings. He noted that no abnormality in the upper limbs or cranial nerves had been found. The CAT scan, he said, of the lumbar spine showed degenerative changes but no significant canal stenosis. 17. The report of January 1999 is also curious because it records that, when Dr Jude spoke to Whiting about the MRI scan of the lumbosacral spine and its results, Whiting had spoken to him about his instep and had asked about his shoulder which appeared to display symptoms of degenerative disease rather than neural compromise. I do not find Dr Jude's reports very helpful. 18. The applicant was later treated by Dr Newcombe (reports are Exhibit C and 3) and underwent a discectomy on 16 March 1999. 19. In relation to the November 1998 incident, in his report of May 1999 Dr Newcombe recorded a different history altogether, so Mr Trainor submitted that the Court would not be satisfied that any incident had occurred. He further submitted that the incident of August 1998 had not occurred, firstly because Whiting had not given a history of it to his doctor, Dr Tait, or to Dr Jude whom he had seen in December 1998 and January 1999, or to Dr Newman whom he had consulted in March 1999, or to Dr Brooder whom he had seen in April 2000, or to Dr Perrott whom he saw in July 2000. 20. The only history of the incident of August 1998 was provided to Dr Clark in July 2000. The failure to relate this history to the doctors would result, it was submitted, in the Court not being satisfied that the incident had occurred, or in any event, any significant incident had occurred. The applicant himself said that he had come good and had recovered from that particular incident. Similar submissions to which I have already referred were made in respect of the incident of November 1998. 21. Dr Newcombe first saw the applicant on 11 March 1999 and recorded a history of a bulldozer-related incident in December 1982 when a bulldozer had hit a rock and the applicant had bitten his tongue. He had had neck pain, the doctor recorded, after this incident. He also recorded an incident on 11 November 1998 when pulling leaves from a gutter. The applicant had lost the use of his left arm, and pain extended to the index and middle finger. 22. The doctor noted restrictions of neck movement, especially lateral flexion, and that the applicant was complaining of neck pain with radiation to the left shoulder, down the arm to the elbow. Whiting was admitted to Canberra Hospital on 18 May 1999. He underwent a decompression of the C6 and C7 nerve roots by microsurgery discectomy and the removal of osteophytes at the C5/6 and C6/7 levels, followed by anterior interbody fusion. 23. Before the operation the doctor had noticed marked wasting of the left arm. There was some question of left shoulder joint restriction, but in addition, he believed that there had been substantial nerve-root compression of the C6, C7 nerve roots. 24. Whiting was reviewed on 11 October 1999 when he was considered unfit to return to work as a bulldozer operator. Dr Newcombe thought that there was some level of permanent impairment of function and concluded that his patient had suffered aggravation of cervical spondylosis and a left shoulder joint condition following the injuries at work, particularly in November 1998. 25. In his report of April 1999, Dr Newman referred to left shoulder pain which was due to cervical spondylosis. In his report of 10 May 1999 he noted Whiting was continuing to experience severe left arm pain with marked wasting which had developed and which involved the left biceps and triceps and other C6, C7 enervated muscles. 26. The doctor noted that Whiting had been using a scarifier last November and his neck had been jarred. Before this, he had some neck pain from other injuries, but after this, the left arm pain and weakness developed. The evidence of a scarifier was not presented in Court. However, in July 1999 Dr Raymond observed that the applicant was rather confused about his compensation claim and at that time he gave a history of the cleaning of the gutters and the appearance of arm weakness thereafter. 27. Dr Brooder's reports are Exhibit A. He first examined the applicant in March 2000, received a history of some incident involving the applicant's neck in December 1982, and noted that following this initial incident Whiting had been aware of persistent cervical pain. Over the years he had continued to develop an intermittent, and at times relatively constant, aching pain involving the posterior cervical region. This condition had been aggravated particularly by his work activities as a driver. 28. Dr Brooder noted that subsequently, and over several years, Whiting had also developed an intermittent, and at times relatively constant, aching of the low back pain. This was induced or aggravated by increased physical activity. He recorded that on 24 March 1998, in the course of his employment while concreting a roadway, Whiting had developed a sudden onset of burning discomfort involving his right lower leg and foot. This burning sensation had been associated with an episode of increased aching low back pain. He also recorded a further episode on 11 November 1998, cleaning leaves and rubbish from a roof gutter. During the course of this activity and although he was using predominantly his right hand, he had developed a sudden onset of marked weakness in his left arm. The weakness had occurred particularly proximally and he had been unable to lift his left arm. The sudden onset of left arm weakness was associated with an aching pain through the left side of his neck, extending into his shoulder and also into his left upper arm and proximal forearm. He has also developed a mild numbness and tingling paraesthesia in the left hand and fingers. 29. Dr Brooder came to give oral evidence in court and to explain the mechanism by which he thought the applicant had been injured in November 1998. For example, he was asked to assume that Whiting had worked as a bulldozer driver and that this had involved driving over rough ground, also some heavy lifting, jarring of various types from operating the bulldozer as well as other mechanical equipment from 1970 to 1993, and he was asked whether this would have produced any effect on the cervical spine in terms of the onset of degenerative changes. The doctor said, It is most likely - contributed significantly to the induction of the changes and then an ongoing aggravation and acceleration of those changes that are there. 30. He was asked further (at page 24) about the work the applicant had done between 1993 and 1999, involving pick and shovel work, loading drums and manhandling them onto the back of trucks, using jack-picks and jackhammers, and generally doing labouring work in road maintenance. The doctor thought this work would have contributed to his condition. Q. That would have led, I take it, to an aggravation and acceleration of the degenerative changes in the cervical spine. A. That's correct. 31. The doctor agreed that there was a component of the degenerative disease which was not related to the applicant's work but was of constitutional origin (Tr. p 25). When he was taken to the incident in November 1998, he observed that where the nerve exits the neck, the space where it exits was narrowed by the degenerative changes so that the nerve which had been chronically compromised, was more acutely compromised during the incident in November 1998. He thought that the applicant's condition was more than likely related to the unusual posturing of his head and neck at the time, or with some associated head and neck movement which were occurring as he was throwing the leaves out of the gutter. He said that the nerve or the nerve roots as they exit the neck had been irreversibly damaged. At Tr. p 27 the doctor said: What usually happens is that the nerve is pretty well compromised and then something acute supervenes and results in, you know, some sort of straw that breaks the camel's back; more or less that either a blood vessel blocks off and the nerve loses its blood supply, it dies, or you get an acute swelling around the exit frame in which the swelling caused by, you know, some funny posturing of the neck, cricks his neck, swells up a bit, that compromises the whole of the forearm a bit further which pinches down on the nerve. 32. Such was the explanation of Dr Brooder as to what had occurred in November 1998. 33. I return now to his report (Exhibit A) dated April 2000 in which he noted that in May 1999 Whiting had undergone cervical spine surgery - discectomy and fusion at the C5/6, C6/7 levels. He noted that in March 2000 Whiting had had persistent symptoms which had continued essentially unchanged for almost 12 months. 34. The doctor also recorded all the relevant investigations by way of x-ray, MRI scans and summarised the applicant's condition. He said that Whiting had presented with a long history of cervical pain, extending over a period of more than 17 years following an initial work-related injury in December 1982. In addition, over the years he had developed an intermittent, and at times relatively constant aching low back pain. He said that more recently he had also developed a sudden onset of left arm weakness, associated with pain involving the left side of his neck, shoulder girdle and arm, together with some sensory disturbance. 35. Dr Brooder thought Whiting had significant multilevel degenerative changes involving his cervical spine, that as a result of the work-related incident in November 1982, there had occurred an initial aggravation of his degenerative cervical spine disease associated with the induction of progressive degenerative changes. He said that over the years, and usually related to his work activities, there had occurred ongoing aggravations to his cervical spine, and that an acute onset of symptoms had occurred in November 1998. He also said that Whiting had developed a secondary left frozen shoulder syndrome which was associated with impaired left arm and shoulder mobility. This frozen shoulder syndrome had occurred as a result of degenerative changes involving the left shoulder joint and capsule, and which was further aggravated by the reduced mobility induced by the left C6 nerve-root compression. Furthermore, he had chronic low back pain related to slowly progressive degenerative changes involving his lumbar and lumbosacral spine. 36. Dr Brooder thought the applicant was totally incapacitated for any pre-injury work, or for any employment. He described him as permanently unemployable. 37. The other two reports are those of Dr Perrott and Dr Clark (Exhibit 4 and Exhibit 5) both of which were based on examination in July 2000. 38. Dr Perrott described Whiting as a vague historian who had difficulty recalling the date and details of various accidents. He did refer to the incident in November 1998, though Dr Perrott thought that there was no apparent reason for what had occurred, that he had developed a sudden weakness and loss of use of the left arm. He observed that it was obvious that in Whiting's case, there had been progressive degenerative changes in the cervical spine over many years, which changes had led to increased osteophytic narrowing of the central spinal canal as well as to some narrowing of the intervertebral foramina causing some nerve-root compression. The left arm problem was related entirely to the longstanding degenerative changes in the neck, with spinal-chord and nerve-root compression manifesting themselves in November 1998. 39. Dr Perrott did not accept that Whiting had sustained any specific back injury at work, or that the nature and conditions of his work had led to any persistent aggravation of degenerative changes in the low back. He said the development of the frozen shoulder syndrome was not related to his work and was likely to have arisen from the neurological problems in the neck. He thought that if further investigations were undertaken, he would not be surprised if there were degenerative changes in the rotator cuff, or a degenerative spur at the level of the acromioclavicular joint. In any event, he found that Whiting was not fit for his pre-injury duties and would only be fit for light duties which did not place strain on the neck or left upper arm. He made various assessments and apportionments in a further report of July 2000. 40. Dr Clark noted the applicant had initially injured his cervical spine in December 1982. He thought there was no firm evidence that the injury of 1982, or the subsequent nature and conditions of Whiting's employment, had either caused or led to any permanent aggravation, acceleration or exacerbation of the underlying constitutional changes of cervical and lumbar spondylosis with probable degenerative changes in the left shoulder. He said he remained unfit for work. 41. The incident in November 1998 could be seen as an injury simpliciter, such as was found in Zickar v MGH Plastic Industries Pty Limited 13 NSW CCR 680, though the applicant was already well affected by considerable radiological symptoms. His condition in his lumbosacral and cervical spine was already seriously advanced. Dr Brooder provided some explanation of what might have happened in November 1998 (as I have referred to and can be seen in the transcript at pp. 26 and 33, for example). He referred to a trapped nerve, of blood supply being cut off, of the nerve dying. 42. However, I prefer the analysis of a disease of gradual onset, and I propose to apply the provisions to s 15. Though both interpretations, it seems to me, are open on the evidence, namely, that an incident had occurred in November 1998 or the symptoms were the result of a disease process. It seems to me that what had occurred was the end of a process of a developing disease which had resulted from very heavy work over the years. He clearly had serious underlying degenerative changes, which seems to have been caused, rather than aggravated, by his work. Whiting had worked for 27 years, for the respondent. He had joined the respondent as a young man and without symptoms, and presumably without radiological evidence of degenerative changes. It is more likely that his condition developed over the many years he had worked for the respondent, and that this heavy work, particularly since 1993, had caused his condition. 43. There is no doubt the applicant has a serious physical disability, as can be seen from the various radiological reports. He is now 63 years of age; he lives in an isolated area; he has no ability to read or write and has only ever done physical labouring work. I have no hesitation in finding that he is totally incapacitated for work. 44. I turn now to the provisions of s 68B and s 68A. The respondent submitted that I should read the provisions of s 68B(2) in a disjunctive manner, particularly because of the parentheses or brackets (after the commencement of this Act). Mr Cooley, who acted on behalf of the applicant, submitted that there should be no deduction pursuant to s 68B or s 68A because of the clear meaning of the words of s 68B. 45. 68B deals with deductions which operate particularly in matters relating to s 15, s 16, s 17 and s 22. Subsection (2) deals with s 15 and I am dealing with that section only. It provides for deductions for any proportion of loss or impairment which was not due to the employment to the nature of which the disease was due, or which was due to pre-existing conditions or abnormalities. It provides, furthermore, that there should be no deduction under s 68A for any loss due to employment (after 1 July 1987) by a previous employer, in the employment of the nature of which the disease would be due. There is no deduction in such circumstances. In other words, the employer last on risk pays the full rate and can recover perhaps in certain circumstances from previous employers after 1 July 1987. 46. It seems to me that reading subsection (2), s 68B is silent about other deductions which should be made pursuant to s 68A. It provides that when determining the compensation payable in a case in which s 15 applies, there is to be no deduction under s 68A in certain circumstances. It does not say there is to be no deduction pursuant to s 68A in any circumstances. It then goes ahead and sets out the circumstances in which there is to be no deduction. This seems to me to be clearly implying that, if in other circumstances s 68A deductions should be made, they should be made. It does not state there is to be no deductions pursuant to s 68A at all and that only the provisions of subsection (2) of s 68B apply. So it seems that in certain circumstances the Court then must return to the provisions of s 68A to determine whether any deductions should be made pursuant to that section which are not protected by s 68B. 47. S 68A states that in determining the compensation payable for a loss, there is to be a deduction for any proportion of the loss which is due to any previous injury (whether or not it is an injury for which compensation has been or is payable under this division), or that is due to any pre-existing condition or abnormality. In Brenton v AP Hunter Engineering Pty Ltd (1997) 14 NSWCCR 349 this provision was interpreted by Armitage J to determine its operation when a loss is due partly to an injury received before 30 June 1987 (the commencement of the Act), and partly to an injury received after. In such a case, Armitage J found (and I agree) that compensation is payable under s 66 only for the loss resulting from the post-30 June 1987 period. Compensation for the part of the loss resulting from the earlier injury is to be calculated pursuant to s 16. With respect, I agree with this finding and it seems to me that in this case, a deduction must be made for the period of work in which the applicant was involved before 30 June 1987, that is, from 1970 to 1987, a period of almost 17 years. What deduction should therefore be made? 48. In this regard I make several observations: firstly, the applicant sustained an injury in 1982 in which he suffered symptoms to his neck, received quite extensive treatment and was never really the same thereafter. Secondly, he worked on bulldozing from 1970 to 1993, and from 1993 to April 1999 in road maintenance, performing very heavy work. Seventeen years of his employment was before July 1987 and six years after, but those six years were spent in heavy, straining, repetitive hard work. Thirdly, as one grows older, the strain of work produces more degeneration. Hard work at the beginning of one's life seems a lot easier than hard work at the end. Heavy work at the end of a working career generally produces more symptoms and seems to contribute more readily to problems, so I have weighted the work the applicant was doing, which was harder at the end of his working life than at the beginning, in some way to reflect the fact that the later work would have had a particularly deleterious effect on the disease process, cervical and lumbar. 49. Doing the best I can, it seems to me that a deduction of 40 per cent should be made from any assessment of neck impairment and left arm loss, and a deduction of 30 per cent from any assessment of back impairment, the differential of 10 per cent to reflect the injury of 1982 where the applicant sustained an injury to his neck and arm. 50. I turn to the provisions of s 67 and briefly say that Whiting is in considerable distress and seriously affected by the symptoms of the disease, the condition of his cervical spine and lower back, affecting particularly the left non-dominant arm. I propose to make an award to reflect that distress, but only insofar he has suffered pain and distress after 30 June 1987. 51. In the light of these reasons I make the following findings and award: 52. (1) the applicant suffers serious disease of the lumbosacral spine, which disease is of such a nature as to have been contracted by gradual process; 53. (2) the respondent was the employer who last employed the worker in employment to the nature of which the disease is due; 54. (3) the deemed date of injury, pursuant to the Act, is 1 April 1999. 55. (4) the applicant suffers serious disease of the cervical spine, which disease is of such a nature as to have been contracted by a gradual process. 56. (5) the respondent was the employer who last employed the worker in employment to the nature of which this disease is due. 57. (6) the deemed date of cervical injury is 1 April 1999. 58. (7) the applicant suffered serious disease to the left shoulder, which disease is of such a nature as to have been contracted by gradual process and is partly the result of the disease of the cervical spine and partly the result of immobility or reduced mobility induced by the cervical disease. 59. (8) the respondent was the employer who last employed the worker in employment of the nature of which the disease to the left shoulder is due. 60. (9) the deemed date of injury to the left shoulder is 1 April 1999. 61. (10) The applicant is totally incapacitated for work, and has been since 1 April 1999. 62. I note that the agreed current weekly wage rate is $600 per week. 63. I make an award from 1 April 1999, for 26 weeks, until 30 September 1999, in the sum of $600 per week, and thereafter at the statutory rate of $277.10 per week as adjusted. 64. (11) As a result of the injury, as found, the applicant has suffered a permanent impairment of the cervical spine which, having regard to the severity of the matter, bears to a most extreme case a proportion of 22 per cent. He has also suffered a back impairment which, having regard to the severity of the case, bears to a most extreme case a proportion of 20 per cent. He has suffered also a permanent loss of efficient use of the left non-dominant arm, at or above the elbow, of 30 per cent. 65. I propose to deduct, pursuant to the provisions of s 68B(2) and s 68A, 40 per cent from the neck impairment, 40 per cent from left arm loss, and 30 per cent from the back impairment, for reasons which I have already stated. 66. I make an award pursuant to s 66, in the sum of $27,180. 67. Briefly, I turn to a possibility of a s 16 award pursuant to the 1926 Act. I am not sure whether the insurer of that particular period of risk before July 1987 was present, or that Mr Trainor represented that insurer. No claim is made in the application for determination for an award pursuant to s 16, or any claim even in the amended and further amended application for determination. I note the answer does not limit the period of risk. Normally, I would make an award pursuant to s 16, and in this case of 60 per cent of 30 per cent of $24,100, or in other words, in a sum of $4,338 - but I will not make such an award for the reasons that I have given, but I do grant leave to mention this matter for further submissions and argument. 68. Having regard to the degree pain and suffering, and to the severity of the loss and the permanent impairments, and to the maximum amount to be paid in a most extreme case, and paying no attention to any pain and suffering predating 30 June 1987, I award, pursuant to s 67, the sum of $20,000. 69. I order the respondent to pay the applicant's medical expenses, and the costs, including a second conference for counsel in the sum of $250. 70. I grant leave to mention the matter. Mr A R Cooley instructed by Robb & Associates appeared for the applicant Mr J K Trainor instructed by Leitch Hasson & Dent appeared for the respondent