Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6

Compensation Court of New South Wales

CITATION : Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6 Anwar Kasim PARTIES : v Busways Blacktown Pty Ltd MATTER NUMBER(S) : 13010 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/05/03 EX TEMPORE JUDGMENT DATE : 05/26/2003

FOR APPLICANT: Mr P Barham instructed by Conomos & Spinak appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J H Hamilton Pearce instructed by Leitch Hasson & Dent appeared for the respondent.

JUDGMENT: 1. Mr Anwar Kasim, whose full name from other documents appears to be Anwar Ali Kasim, of Guildford, claims weekly payments of compensation from 12 January 2001 to date and continuing for either total incapacity, or, alternatively, partial incapacity. He also claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for 15 per cent impairment of his neck, 20 per cent impairment of his back, 5 per cent loss of efficient use in his right leg at or above the knee and 5 per cent loss of efficient use of his left leg at or above the knee and a consequential lump sum under s 67 for pain and suffering anxiety and distress resulting from those impairments and those losses. 2. The applicant was employed by the respondent as a motor bus driver. He has followed that calling for many years. Mr Kasim was born on 18 October 1952 and is currently 50 years of age. His wife works. He has dependent upon him for support three children, the eldest of whom is 13. The applicant commenced working for the current respondent on 16 October 2000. 3. In the application for determination it is alleged that on 12 January 2001, whilst in the course of his employment driving a bus in Doonside, the applicant was the victim of an assault "by passengers." The applicant told me in his evidence-in-chief that he commenced work at 4 pm on 12 January 2001. His shift was due to finish at 12.30 am on the following day. At approximately 7.30 the applicant picked up passengers at the Blacktown railway station. His route was to take him eventually to the Doonside railway station. At Blacktown the applicant picked up some elderly people and a group of teenagers comprising six boys and one girl. The applicant told me that they did not know the cost of the fare to their destination, which was a bus stop at the intersection of Hill End Road and Richmond Road. The applicant told me that the young people complained that they were being charged too much for the fare. The fares for the teenagers were paid by the sole female amongst them. The applicant told me that before the party reached their destination they shouted from the back of the bus that the applicant was to take them to Doonside rather than to Woodcroft. The applicant told the party at the back of the bus that his route did take him to Doonside but he had to go via Woodcroft. His evidence was that there was a suggestion by the party of young people that the applicant really didn't know the route that he ought take and that he, the applicant, told them that they would eventually be taken to where they wished to go. 4. The party commenced to alight from the bus at the intersection of Hill End Road and Richmond Road. The young lady left first followed by the six boys. The applicant told me that the third or fourth boy to leave the bus stopped and had a conversation with him. In fact it is now common ground that it was the fifth last boy who stopped and had a conversation with the applicant. Nothing turns on this minor discrepancy. The applicant's sworn evidence to me was that the fifth last boy closed his fists and swore at the applicant and called him a "mother fucker." The youth is then alleged to have said "do you want to fight with me?" The applicant told me that he felt scared. He stood up and pushed the young man away and that is how the fight started. He told me in his evidence-in-chief that the young man was trying to pull the applicant out of the bus cabin and that the young man's friends were trying to grab the applicant's assailant and pull the assailant out of the bus. The applicant told me that the young man did leave the bus but then returned to the bus and continued the fight. He told me that eventually he pushed the young man out of the bus and closed the door. He then used the two-way radio to communicate with his employer and was told to report to the Blacktown Police Station which he did. He ceased work and went to Blacktown Hospital after leaving the police station. 5. On the next day, 13 January 2001, the applicant went to see Dr Latif, and subsequently came under the care of Dr Salim on 31 January 2001. Dr Salim was eventually to refer his patient on to Dr Vijay Maniam, an orthopaedic surgeon. Dr Maniam himself suggested that the applicant see Mr Ben Ebel, a psychologist and rehabilitation consultant. Mr Ebel diagnosed a post-traumatic stress disorder. The applicant has never returned to work for the respondent or anyone since the time of the assault. 6. That which the applicant told me about the circumstances of the assault is not the way the applicant has previously portrayed the event at all. Fortunately a video surveillance camera that was installed in the bus is still available and shows what actually happened. In the course of giving evidence to me the applicant told me that the group of young people at the back of the bus, prior to their alighting and prior to the assault, had been throwing tin cans and other matter - which appeared from the applicant's description to be popper boxes, down the length of the bus and one of those objects hit the shield behind the applicant and the applicant said he felt as if it had hit him on the back of the of the head. There is no soundtrack to the video surveillance film. The video surveillance film is only an excerpt of what was originally available. For example, it does not show the group of young people entering the bus in the first place. 7. The applicant in his evidence in cross-examination said that the young people were throwing projectiles down the bus between the time when the last lot of passengers prior to the young people, alighted from the bus and the time of the young people's alighting from the bus. The video film does not suggest that at all. When the applicant was challenged about that he sought to change his sworn evidence to suggest that the projectiles had been thrown at some earlier time than in the interval between the last two lots of passengers alighting from the bus. Merely from the way in which the applicant gave his evidence I had severe doubts as to his accuracy and reliability. 8. Having seen the film, I am unable to accept him as an accurate, reliable or honest historian or witness. When one looks at the other material to which I would refer and to the video film which I will describe soon, it is clear that the applicant has made a large number of mis-statements which are untrue. As reluctant as any Court is to make such a finding of fact, it must be faced in this case that Mr Anwar Ali Kasim is a liar. 9. The video surveillance film shows the fifth last young man stopping in front of the applicant where he is seated in the bus driver's seat, looking out the front entrance door, and saying something to the applicant. The young man's fists were not clenched at all; they were being held, fingers fully extended, by the side of his legs. It is clear that the young man was saying something to the applicant. The applicant then stood up and swung his right arm and delivered a vicious slap to the young man's head. The applicant then persisted with his assault on the young man. The applicant was the aggressor in the assault which did occur. 10. It appeared to me that initially the young man was only seeking to defend himself. The young man certainly did not fare well in the fight. The applicant held the young man's throat with one hand and could use the other hand to beat the young man. The young man's arm length was not as long as the applicant's so that the young man could not make contact with the applicant's body and he grabbed the applicant's shirt. During the initial course of the fight, the young man, who was wearing a white visor, lost the visor. At one stage the young man went to retrieve the visor, no doubt preliminary to escaping from the bus, but the applicant closed the bus door behind him, keeping the young man trapped in the bus. The assault was continued and the young man did not retrieve the visor. He left the bus without the visor eventually, but then returned, and the camera strongly suggests, and I find, that the young man returned for the purpose of collecting his headwear. The applicant again commenced to assault the young man who eventually got his visor and fled the bus. 11. The applicant at all times was the aggressor in this assault. The young man did depart the bus and re-enter it, but objectively, not for the purpose of continuing a fight or seeking revenge, merely to retrieve his headwear. The film does not suggest any attempted robbery. The young man does move towards the front compartment of the bus where the driver is and the money is kept, but initially that was for the purpose of retrieving his headwear and subsequently it was for the purpose of trying to push the button to open the doors so that the young man could escape from the bus. 12. The applicant made a claim for compensation on 17 January 2001. The applicant's claim for compensation was supported by his declaration that the information given was true and correct. The declaration was witnessed by a Justice of the Peace. When asked to describe what happened, the following has been written: Passengers getting off bus at the last stop tried to rob the money and assaulted me. 13. Only one person was involved in the fight and that person did not assault the applicant. The applicant assaulted him. There was no attempt to rob money from the applicant. The statement made before the Justice of the Peace is untrue. 14. The applicant was interviewed by Constable Friend at Blacktown Police Station on 28 January 2001. The applicant made a statement to Constable Friend. The relevant parts of the statement are these: 6. As I was driving the bus through Woodcroft the six boys and the girl were calling out from the back of the bus. By this time the middle-aged passengers had already left the bus. The group of kids were all swearing and calling me names. They were saying things like "black cunt and fucking idiot". Some of them called out, "Driver, your suppose to be going to Doonside". I said, "I have to go to Woodcroft first then to Doonside." 7. I then completed the Woodcroft part of the route and headed back onto Richmond Road. I then turned left into Hill End Road and stopped at the bus stop on the corner of Hill End Road and Richmond Road so I could let these kids off. The girl got off the bus first. As she got off the bus she did say something to me but I couldn't hear what she said. Then three of the boys walked off the bus. The next boy came straight up to me and hit me with his fist in the back of my head. This boy was about 5 foot 10 inches, thin build, black short hair with a long fringe. He was wearing a coloured shirt and pants. I then pushed the boy away and he fell down the stairs of the bus. The boy kicked his legs about and the next minute he was standing up again. 8. Then as the next two boys walked past me they started punching me in the back. These two boys were short and stocky. I tried to push these boys out of the bus too but I couldn't. The boy who punched me first then kept trying to grab my money tray. I covered my tray with my body to stop him from taking it. The boy managed to pull me. 9. I was holding onto the bar with one hand so I wouldn't get pulled outside the bus. The boy pulled me again. This time it ripped my shirt. The other two boys then got off the bus and started pulling the other boy. At this time the first boy was still holding onto me. 10. I then somehow managed to press the door switch and close the door while I was still inside the bus. I wanted to drive the boy to the police station. However, all his friends were standing just outside the bus. They saw me close the door. They all then forced the doors back open. 15. The statement that the young man hit the applicant with his fist in the back of the head is untrue. The statements that two other boys punched the applicant in the back is untrue. The statement that the young man was trying to rob money from the bus is untrue. The statement that the applicant covered his money tray with his body to protect his employer's property is untrue. 16. On 20 March 2001 the applicant was interviewed by Mr J Sheringham who, I assume, is a private enquiry agent retained by the employer. The statement was in handwriting and covers in handwriting 22 pages. The applicant signed the foot of each page. The statement concludes with a number of questions and answers which appeared to mirror police practice. Those questions and answers indicate that the applicant had read the statement, that it was true and correct and was made of the applicant's own free will, and that no inducement, threat or promise had been held out to him to make the statement. 17. In the statement the applicant says that there was a discussion about the appropriateness of the fare being charged by the applicant for each of the young people. The statement then continues: At the time that the teenagers got onto the bus they were not behaving in a threatening or rowdy manner and they did not do anything that would cause me to believe that they would cause any trouble for me. 18. The statement then continues to make the point that as the applicant commenced the route through Woodcroft the teenagers started calling out words to the effect that the applicant was supposed to be going to Doonside. The statement continues thus: I replied with words to the effect of, "This is part of my run, just hang in there, I will get you to Doonside. At this point in time I did not feel threatened by behaviour of the group of teenagers as I just thought they were behaving like the usual noisy kids that I come across when I am driving my bus." 19. The statement then goes on to record that the applicant knew where the group wished to alight from the bus because that had been discussed when they entered the bus when asking what the fare was. The statement does not suggest that anything untoward happened prior to the bus's stopping at the intersection of Hill End Road and Richmond Road. 20. The statement then continues thus: The first teenager to get off the bus was the female. As she got off, she said something to me. Because the other teenagers were making so much noise I could not clearly hear what she said to me, but it seemed to me that she was making a complaint. She then got off the bus and three of her companions followed her off the bus. At this point in time, I was sitting on the driver's seat behind the steering wheel, waiting for the rest of the passengers to get off. I did not feel threatened and I was not turning around to look behind me. As is my usual habit, I was sitting with my left hand resting on the piece of board above the money tray. Without warning, I felt a heavy impact against the back of my head as though I had been hit with a clinched fist. Instinctively, I moved over to the right-hand side of the driver's area near the driver's window. There was a protective screen behind the driver's seat and I wanted to make sure that the screen protected me from being struck in the back of the head again. I turned to face the doorway of the door and I could then look behind me up the aisle of the bus. I saw one of the male teenagers stand in front of me looking into the driver's area, straight at me. I also saw two of his male companions standing in the aisle-way behind him. All three of these teenagers were trying to get into the driver's area and they were all swinging their arms as they were trying to punch me or grab hold of me. They were making a fair bit of noise, but it all happened so quickly, I could not make out what they were saying. As I moved back into the bus driver's compartment I was leaning forward towards the money tray with my hands extended towards the money tray to try and protect it. My boss had previously told me that if anyone tried to rob me that I should not try to protect the money and I should let the thieves take the money. My boss told me that I should only try to protect myself and that I should not try to protect the money. When these people attempted to rob me I forget what my boss had told me about not trying to protect the money. I recall thinking that I did not want these people to get my money. As I was reaching towards the money tray, I was facing my three attackers, with my head down. All three of the teenagers were throwing punches at me and they landed a barrage of blows on the top of my head and on my back. I managed to push the male teenager in front of me back down the stairs at the door at the front of the bus and he fell down onto his back. I then tried to kick him to get him all of the way off the bus. At this point in time, I had managed to get out of the bus driver's area and I was in the aisle way near the front door. Everything happened so quickly that I do not know what happened to the other two teenagers who had attacked and punched me. It all happened so suddenly that I can't remember exactly what happened. They may have managed to get off the bus when I was struggling with them, while I was trying to protect myself and my money. 21. The statement that the applicant was hit from behind with a clenched fist or with a projectile is untrue. The applicant was never hit from behind by anyone or anything. 22. Three young men were not involved in this fight, only one young man was involved in this fight. This fight was initiated by the applicant, not by any young man. Clearly the applicant attempted in his interview with Mr Sheringham to induce the belief that the young men were motivated to rob him of his money. That was the reason that they assaulted him. Robbery was not a motive in this matter. The fight started because the applicant assaulted one young man. 23. Prior to making that statement - which is in many respects false - to Mr Sheringham, the applicant had seen a number of doctors and given histories. The history contained in Dr Salim's report of 24 August 2001 merely indicates that the applicant alleged to being assaulted by three persons. That history given to Dr Salim is untrue. There was only one person involved in the fight which had been initiated by the applicant himself. 24. On 2 March 2001 the applicant was seen by Dr Tim O'Carrigan, a specialist surgeon for the insurer of the employer. The applicant gave a history to Dr O'Carrigan suggesting that the young people abused the applicant verbally. The doctor's history continues thus: He subsequently reached their bus stop and four got off but one tried to grab the money. He attempted to stop the thief but he was hit several times on the head, left and low back which included punches and kicks. He fell over the money and they pulled him out of the driver's seat and hit him several times again. He did not lose consciousness and managed to close the door but there was still one assailant inside the bus. The others forced the door open and let that person out. 25. Again the statements made by the applicant that one of the young men tried to rob the bus of its money is untrue. The statement that the applicant was assaulted by a number of people is untrue and the statement that the applicant was punched a number of times and kicked a number of times does not appear to be true from my viewing of the video surveillance film. 26. On 7 March 2001 the applicant saw Dr V. J. Maniam for the first time. The applicant told Dr Maniam that the young people tried to rob the money from the box and that a number of young men attacked the applicant, punching him and pushing him over. The suggestions that robbery was the motive, that robbery was attempted and the statement that a number of people assaulted the applicant are all untrue. 27. On 27 March, a week after making the statement to Mr Sheringham the applicant saw Mr Ben Ebel, a psychologist. The applicant did tell Mr Ebel that the youths began to yell at him that he should be going to Doonside when he started to take the route through Woodcroft. The applicant told Mr Ebel that the youth began to verbally abuse him and that he attempted to calm them down by explaining that the route through Woodcroft was part of the normal route. The applicant went on to tell Mr Ebel that he was struck on the back of the head by one of the youths exiting the bus. That statement is palpably untrue. The applicant went on to tell Mr Ebel that he was startled by the first blow and then he was attacked by two more young men. That statement is palpably untrue. The applicant also told Mr Ebel that one of the youths was attempting to rob money from the bus. That statement is also untrue. 28. On 16 April 2002 the applicant made an electronic record-of-interview with Detective Senior Constable Gilbert at Merrylands Police Station. Also present was Senior Constable Bayliss. The applicant explained in his record-of-interview that the young people, when he started taking the route through Woodcroft, started yelling from the back of the bus, calling him names. Those names included "black cunt", "that bastard's useless" and similar things. The applicant went on to tell the police that it was from that time on that the young people started making noises, throwing cans and "stuff like that." When asked to explain what that was, he said it was "papers and things left by passengers in the bus." He was asked whether any of that material hit him and the applicant said that it did not. It should be noticed that this is the first occasion on which the applicant alleged that projectiles were being thrown in the bus by the young people. This was the version of events given to me in cross-examination. 29. However, the applicant did not suggest to the police, as he did to me, that any of the projectiles hit him or hit the protective barrier behind him such that it may have hit the applicant on the head. The applicant told the police that the fourth young man to leave the bus hit him on the back of the head and that he could see a boy standing in front of him trying to grab the money. In the record of interview the applicant also said that two other young men were punching him and trying to grab him. However, he was unable to remember how many times they punched him. The applicant mislead the police. The applicant was not hit on the head being the commencement of the assault. The applicant was not attacked by anybody other than one single youth and on my findings the applicant attacked him rather than vice versa. 30. The police made available to the applicant the statement that he had made to Mr Sheringham on 20 March 2001. The applicant confirmed to the police nearly everything that was contained in that record-of-interview as being true and correct. The only disagreement that the applicant had with any part of the statement at that stage was the statement that the boss had told the applicant that he should only try to protect himself. The applicant told the police that the boss had told him to protect himself and the money as well, otherwise the applicant had no cavil with the content of the statement made to Mr Sheringham. The applicant could have resiled from the statement when being formally interviewed by the police but he did not and he affirmed it in every way possible. He again confirmed that he was punched on the back of the head without any warning. 31. Towards the end of the interview Senior Constable Bayliss asked some questions. Those questions I think need to be considered: Q189 Just one. Just take you back to when you were trying to protect the money on the bus. A Yeah. Q190 And you were saying that the first bloke was trying to get the money. A Mm-hmm. Q191 What was he saying at the time. A It was very noisy, I couldn't understand because the girl when she got off the bus had said something, I couldn't understand either because the children was running and they were making noise. I couldn't understand what they were saying. Q192 Okay. What made you think he was going for the money then. A Who? Q193 The boy. A Because he was just looking at the tray. Q194 Do you know if he was saying anything. A There was something that he, but I didn't understand what they were talking about. Q195 So they were talking but you just couldn't understand what was being said A Yeah, yeah. 32. It is to be noted that the applicant asked me to believe that he knew exactly what his alleged assailant was saying. His alleged assailant called him a "mother fucker" and asked the applicant whether he wished to fight with him. Yet, when asked to say what anyone had said at the time, the applicant did not understand what any of them were saying. The applicant has misled Detective Senior Constable Gilbert and Senior Constable Bayliss. The curious thing that should be noted at this stage is that at the time the applicant was interviewed by Detective Senior Constable Gilbert and Senior Constable Bayliss, he had seen the video film. He had seen it with his lawyers prior to the interview by the police. Unfortunately, but not unexpectedly, the police equipment mal-functioned and they were unable to re-show the video to the applicant. Prior to giving evidence before me the applicant had seen the video a number of times. 33. The most recent health professional to interview the applicant was Dr Wendy Roberts, a consultant psychologist. Dr Roberts interviewed the applicant on 27 November 2002. The applicant told Dr Roberts that the young people started yelling at the applicant and throwing cans at him whilst he was driving. The applicant also told her that they were swearing at him. The applicant told Dr Roberts that they called him names and "used the 'f' word and things like that." The applicant told Dr Roberts that in the context of the young people's remonstrating with the applicant about their desire to go to Doonside rather than to Woodcroft and the applicant's explanation that Woodcroft was part of the route to Doonside. The history continues thus: One of the boys stood in front of me and swore at my mother and wanted to fight me. I stopped the bus at the corner of Richmond and Huon Road in Doonside ..... on the boys [Scilicit, one of the boys] had his fists clenched and was a bully and three of them got off the bus with the girl and the two others stood there while the others had clenched fists. I pushed the guy with a fist clenched because I was scared and that's how the fight started. That version of events is roughly similar to the version of events of which the applicant told me in-chief. 34. This is a case in which I cannot accept anything that Mr Kasim has told me unless corroborated or something which has been so consistently reported as to be common in this case and unless what he says be consistent with common human experience. One datum as far as I am concerned is that there was some exception taken by the group of young people by the applicant's taking the route through Woodcroft rather than the route directly to Doonside. There is something in the film which to me corroborates that. Clearly at times the applicant was looking up into a mirror looking down the back of the bus and obviously at times he makes a comment or two. I accept that there was some verbal outburst at the back of the bus with a group of young people to which the applicant verbally responded. At no time does the film suggest the applicant was in any way frightened or apprehensive, unhappy or worried. 35. The girl, followed by four young men, alighted from the bus. The fifth young man, he who was wearing a white visor, stopped, looked down at the applicant and spoke to him. Whatever the young man said provoked a violent, vicious response from the applicant. He stood up and slapped him almightily using his right dominant arm and then assaulted the young man. Objectively, there was some provocation. What the provocation was I do not know. The applicant told me that it was because the young man used the word "mother fucker" which the applicant took to be an insult directed at his mother. I do not know what was said, but, objectively, the young man stopped, spoke and said something which provoked the applicant. 36. Learned counsel for the respondent has submitted that not being able to ascertain what the nature of the provocation was would lead me to the view that it could not be in the course of the applicant's employment or related to his employment causally. I am unable to accede to that submission. There is no suggestion here of any relationship between this group of young people and in particular the young man who wore the white visor other than the relationship of driver and passenger. I accept that there was some verbal altercation between the group of young people and the applicant about the bus route. It may be that the applicant said something nasty to the young people and provoked one of them to say something nasty back to the applicant. I do not know. However it appears to me that whatever the young man said to the applicant arose out of the relationship of passenger and driver and therefore was related to the applicant's employment. 37. The applicant responded completely inappropriately. Whatever provocation was offered to him the applicant's assault upon the young man cannot in any way be justified. The assault did not last for a long time but obviously had a number of parts to it. That has led learned counsel for the applicant to submit that two things happened. The applicant may have initiated the assault but the applicant's injuries only occurred when the young man came back into the bus to "continue the assault" or to continue the fight and that is when the applicant may have been injured because he would not be injured whilst throwing a slap or a punch at the young man. I am unable to accede to that submission. This whole altercation between the applicant and the young man was one single event in my view, one single event because the applicant commenced it, persisted with it and dislodged the young man's headwear, and what happened thereafter appears to be merely the continued attempt of the young man to both defend himself and to retrieve his headwear. Albeit that he was very angry, as one would no doubt expect him to be, when the young man re-entered the bus he held out his finger like a remonstrating parent of a child when of course the relationship ought to have been the other way round. 38. I will for the purpose of my continued ruling on this case assume that the applicant has suffered personal injury. Did any such injury arise out of or in the course of the applicant's employment with the respondent? The first finding I reach is that any injury did not arise in the course of the employment. That is because when the applicant stood up and vehemently slapped the young man on the head he interrupted the course of his employment. He was not required, expected or authorised in the course of his employment to assault one of Her Majesty's subjects. Indeed, what he did appears to me to be contrary to the criminal law. If one need any authority for that one need only consider Stojkovic v Telford Management Pty Limited (1998) 16 NSWCCR 165 at [91] to [93]. However, in my view the only inference I can draw is that this injury arose out of the employment because the only inference I can draw is that the reason for the young man's conversation with the applicant which clearly provoked him was something that arise out of the relationship of driver and passenger. There is no suggestion here that there was some other relationship involved which gave rise to any animus between the worker and the young man. 39. There is no evidence to suggest for example that they were unreconciled neighbours, that they were sporting enemies or anything of that nature. In Tarry v Warringah Shire Council [1974] WCR 1, there is a dictum which supports compensibility in the judgment of Hutley JA. I dealt with Tarry's case in par 75 of my judgment in Stojkovic. I will repeat shortly what I said: In that case, the worker had died. He had had an altercation with a fellow employee, which on the evidence led to cardiac arrest causing the worker's death ten days later. The worker was a foreman at the Mona Vale Garbage Depot. It was his duty to allocate work to various tanker drivers, who normally reported for work at about 4 am each morning. On the morning of 17 October 1977, there was an oral dispute between the deceased worker and a man called Ure. The deceased said to Ure: " I will have to put you in your place" and Ure said: "When are you going to do it?". The deceased said, "one of these days you'll find out", whereupon Ure replied, "When you're ready" and the deceased said, "Right now will do". Thereupon the two men went outside the gates of the depot and proceeded to take up striking attitudes and threw a few tentative blows but neither person struck a blow. Ure slipped and fell. Thereupon the deceased threw himself upon him and Ure noticed the deceased appeared to be having difficulty in breathing, then he slumped to the ground. His Honour, Judge Gibson made an award for the respondent. In reversing that, Hutley JA said at 6: