Bolton v Ibrahim and Dimitrikakis [2002] NSWCC 39

Reported Decision : (2002) 24 NSWCCR 31

Compensation Court of New South Wales

CITATION : Bolton v Ibrahim and Dimitrikakis [2002] NSWCC 39 Wayne Robert Bolton PARTIES : v Riad Ibrahim George Dimitrikakis MATTER NUMBER(S) : 43018 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 31/07/02, 01/08/02 EX TEMPORE JUDGMENT DATE : 08/01/2002

FOR APPLICANT: Ms H Wall instructed by Shanahan Tudhope. FOR RESPONDENT: Mr J Hatzistergos instructed by T J Doubleday appeared for the first respondent. LEGAL REPRESENTATIVES: Mr A Candy instructed by Vandervords appeared for the second respondent.

JUDGMENT: 1. This is an application by Wayne Robert Bolton against Riad Ibrahim and George Dimitrikakis in which he alleges injury in the course of his employment with the first or the second respondent in the alternative on 27 November 1997, when he was on a journey in the course of his employment as a taxi driver and suffered injury to his neck and back. The Application for Determination does not make it clear, but the applicant's evidence disclosed that in fact the injuries were sustained in a motor vehicle accident in the course of his work as a taxi driver. The appropriate section 66 lump sums are claimed for 25 per cent permanent impairment of the neck and 20 per cent permanent impairment of the back, together with a lump sum under s 67 of $20,000 in respect of 40 per cent of a most extreme case of pain and suffering. S 60 expenses and interest are also claimed, but I shall make no particular orders in that regard because I was not addressed in relation to either issue. In relation to s 60 expenses there was no evidence that any remained outstanding, and interest would appear to be precluded by legislative amendment. 2. The issues were indicated at the commencement of proceedings in a manner for which I am grateful by counsel for both respondents as being firstly employment, secondly permanent impairment, thirdly nexus between injury and permanent impairment if any, and fourthly the application of s 68A. 3. The first issue to be determined is the identity of the applicant's deemed employer. The Application for Determination does not allege it, but the matter was fought throughout on the basis that the applicant's entitlements, if at all, were created by Sch 1, cl 10 of the Workplace Injury Management and Workers Compensation Act 1998 which reads: A person engaged in plying for hire with any vehicle or vessel, the use of which is obtained by that person under a contract of bailment (other than a hire purchase agreement), in consideration of the payment of a fixed sum, or a share in the earnings or otherwise, is, for the purposes of this Act, taken to be a worker employed by the person from whom the use of the vehicle or vessel is so obtained. 4. This provision was mirrored formerly in Sch 1 cl 10 of the Workers Compensation Act 1987, and before that by s 6 (11) of the Workers Compensation Act 1926. Some authorities exist on the last mentioned provision and are of use, and I shall come to them later. 5. Briefly, the applicant's evidence, so far as his original employment was concerned, was that in early 1997 he had a conversation at a taxi base in Bexley with the first respondent, Riad Ibrahim. The applicant told Mr Ibrahim at that time that he was looking for a change of bases, he having driven until that time at Newtown base, and he expressed an interest in driving for Mr Ibrahim, whereupon Mr Ibrahim indicated that he was prepared to have the applicant drive for him. It was then agreed that this would occur almost immediately, using the usual arrangement whereby a fixed pay-in at the end of each shift, varying depending on the profitability or otherwise of the shift, would be paid to Mr Ibrahim or to somebody else on his behalf at the end of the shift. 6. No mention was made by the applicant of the second respondent, George Dimitrikakis, although it was agreed by all parties that at all material times Mr Dimitrikakis was in fact the registered owner of the cab the applicant was driving at the time of his accident. Thus, so far as the applicant knew, he was dealing only with the first respondent, Mr Ibrahim, and not the second respondent, Mr Dimitrikakis. The applicant commenced driving cabs from Mr Ibrahim pursuant to this arrangement, and would make his pay-in at the end of the shift to Mr Ibrahim, but not to him personally because the shift usually ended late at night and Mr Ibrahim was generally not about the base to receive the payment in person. The payment was instead paid into a box or to some other person, as I understand the applicant's evidence, which was not in contention in any way in this respect. 7. The applicant would usually drive a particular cab, but from time to time he would receive another cab from Mr Ibrahim when the cab he usually drove was off the road. As I have said, at the time of the accident in question he was driving a cab which was in fact owned by Mr Dimitrikakis, according to the parties' agreement, although the applicant's evidence does not suggest that he was in any way aware of this fact. In particular when cross-examined as to whether he had registration or insurance documents available to him in the glove box of the cab - from which he might by implication have discovered Mr Dimitrikakis's ownership of the cab, had he chosen to look at them - he said that no such documents were in the cab at any time to his knowledge. 8. On 27 November 1997, in circumstances not disputed by either respondent, the accident in question occurred. I shall deal with the circumstances of it later when dealing with the applicant's entitlements as they are not germane to the present question, except that I should note in passing that it is not disputed by either respondent that the applicant was at the time of the accident in the course of his "deemed employment", if I may so call it, within cl 10 set out above. 9. The question for decision is whether the applicant made a contract of bailment within cl 10 with the first respondent or with the second respondent. Mr Ibrahim, the first respondent, gave evidence although Mr Dimitrikakis, the second respondent, did not. Mr Ibrahim's evidence was that at the time of the original agreement, to put it neutrally, between himself and the applicant in 1997 he was managing the cab which the applicant generally drove for Mr Dimitrikakis, pursuant to an arrangement whereby he simply took commission from the pay-in paid by the applicant at the end of every shift, accounting for the rest of the pay-in to the owner of the cab, in this case Mr Dimitrikakis. However, after some weeks and well before the applicant's accident this arrangement changed. The newer arrangement agreed between the first respondent Mr Ibrahim and the second respondent Mr Dimitrikakis was that Mr Ibrahim would pay Mr Dimitrikakis the sum of $1,400 per week for the use of the cab. In return Mr Dimitrikakis would assume liability for all outgoings concerning the cab, with the exception of the petrol consumed during the applicant's shift which was the responsibility of the applicant. 10. In particular Mr Ibrahim said it was agreed (and I accept that this was so, Mr Dimitrikakis not having chosen to give evidence to dispute this) that Mr Dimitrikakis would pay the registration and insurance fees on the cab as well as maintaining workers compensation insurance in respect of it. Later, at a time after the applicant's accident, Mr Ibrahim in fact purchased the cab itself, though not the registration plates, outright from Mr Dimitrikakis and leased the registration plates from Mr Dimitrikakis, but this is not relevant by common consent as it occurred after the applicant's accident. 11. The simple submission of Mr Hatzistergos for the first respondent, Mr Ibrahim, is that the proper construction of this arrangement is that in relation to any contract of bailment entered into by Mr Ibrahim with any driver of the cab owned by Mr Dimitrikakis, Mr Ibrahim was acting purely and simply as agent for Mr Dimitrikakis in so doing, and that any contract of bailment was therefore made not by Mr Ibrahim but by Mr Dimitrikakis. This was certainly so, Mr Hatzistergos urged, after the arrangement was reached whereby Mr Ibrahim paid Mr Dimitrikakis $1,400 per week for the use of the cab in return for Mr Dimitrikakis meeting the full out-goings on it (excluding petrol during any driver's shift which was the responsibility of the driver, in this case the applicant) even if it was not the case before that time, noting that the applicant's accident occurred after that arrangement commenced. 12. Mr Candy for the second respondent, Mr Dimitrikakis, of course urges the contrary, which is that the contract of bailment made by the applicant in respect of the cab was made between himself and Mr Ibrahim and not with Mr Dimitrikakis at all. 13. Counsel preferred to base their submissions on general principle rather than referring to authority. I drew their attention to a couple of cases referred to in Mills' Workers Compensation Practice against cl 10 quoted above, and it was agreed that if they wished to address me on them, the hearing and addresses having concluded yesterday, they would inform their associates and contact me this morning for that purpose. No counsel has contacted me in this respect. 14. It was established in particular by Doggett v Waterloo Taxi Co Limited (1910) 2 KB 366 [CA] and Bates-Smith v General Motor Cab Co Limited (1911) AC 188 [HL] that a contract of bailment in respect of a taxi cab is to be distinguished from a contract of employment. As a result there was a legislative need perceived in this state in those more innocent times to ensure that taxi drivers were covered by the Workers Compensation Act in circumstances such as those in the present case, where the true relationship between the driver and the person for whom he or she drove, if I may so put it, was that a contract of bailment, rather than one of employment, existed. Consequently, subsection (11) was inserted in s 6 of the Workers Compensation Act 1926. However it became clear from Cooke v Wormald (1942) WCR 7 that this section in its original form did not meet the situation where the bailor of the vehicle to the driver was the lessor of the vehicle but not the owner thereof. That was because the wording of s 6 (11) as it then stood spoke of "a person engaged in plying for hire with any vehicle or vessel the use of which is obtained from the owner thereof." [italics added] 15. The subsection was consequently further amended by the Workers Compensation Act and Workmans Compensation (Broken Hill) Act (Amendment) Act 1942 and the reference to "owner" was deleted, so that the section simply referred to the obtaining of the vehicle or vessel by the person plying for hire under a contract of bailment, without specifying whether that contract was with the owner or with a person who leased or otherwise obtained a vehicle from the owner. The clear legislative effect of that amendment was to provide workers compensation benefits for persons who entered a contract of bailment with a person other than the owner of a vehicle or vessel, such as a taxi cab in this case. 16. The wording of cl 10 quoted above is materially identical to that of s 6 (11) of the 1926 Act. It makes no reference to a contract of bailment with the owner of the vehicle in question. Therefore I think the proper construction of s 10 is that it covers persons such as the applicant who make contracts of bailment in respect of taxi cabs with persons other than the owner of the vehicle who had the use of the vehicle in some fashion or other by lease agreement or otherwise from the owner. 17. That is the situation here, I think, pursuant to the arrangement prevailing at the time of the applicant's accident whereby Mr Ibrahim paid Mr Dimitrikakis $1,400 per week for the use of the cab, in return for Mr Dimitrikakis paying all outgoings on it with the exception of petrol consumed during the driver's shift which was, as I have said, the responsibility of the driver. Prima facie therefore the applicant is entitled to succeed in this application against the first respondent, Mr Ibrahim, and not the second respondent, Mr Dimitrikakis. 18. As to the submission of Mr Hatzistergos that the contract of bailment was in truth with Mr Dimitrikakis and not Mr Ibrahim, it is to be noted that the applicant's evidence, from which he was in no way shifted in cross-examination, was that the existence of Mr Dimitrikakis or his ownership of the vehicle was at no time disclosed to him before the accident in question. The law in relation to undisclosed principals, even where authority exists in the agent to make the contract in question on behalf of the principal, is that either the agent or the principal when discovered may be sued on the contract: see Teheran-Europe Co Limited v S T Belton (Tractors) Ltd (1968) 2 QB 545 at 553; (1968) 2 All ER 886 at 889 and Maynegrain Pty Limited v Compafina Bank (1982) 2 NSWLR 141 at 150; see also Cheshire and Fifoot, Law of Contract (6th Aust. Edn., 1992) para [1657] at 649. Even assuming that Mr Ibrahim made the contract of bailment with the applicant as agent for Mr Dimitrikakis and with his authority, the fact that Mr Ibrahim did not disclose the existence of Mr Dimitrikakis or his ownership of the vehicle to the applicant means that he, Mr Ibrahim, may be sued on the contract in any event. 19. I do not think that the present circumstances prove such a relationship of principal and agent in any event between Mr Dimitrikakis and Mr Ibrahim in relation to any contract of bailment Mr Ibrahim made with the applicant after he obtained the use of the cab, to put it neutrally, from Mr Dimitrikakis in return for his paying the sum of $1,400 per week, Mr Dimitrikakis remaining responsible for all outgoings on the vehicle except for the petrol consumed during the driver's shift. I think in fact that the true construction of that arrangement is that Mr Dimitrikakis gave Mr Ibrahim full use of the vehicle for a particular sum and assumed liability for outgoings on the vehicle (except petrol) and left Mr Ibrahim free to make on his own account whatever contract of bailment he liked with any driver he liked for the purpose of obtaining earnings on the vehicle from which he, Mr Ibrahim, would then obtain the necessary remuneration to meet his liability to pay Mr Dimitrikakis $1,400 per week and make his own profit over and above that sum. No doubt the parties thought that the result of Mr Dimitrikakis' taking up workers compensation insurance pursuant to the agreement between them would in some way constitute Mr Dimitrikakis as the person liable to pay workers compensation to any driver that might be injured in the use of the cab. But as was pointed out by Kerr CJ in Mead v New England Seed Traders Pty Ltd (1972) 46 WCR (NSW) 113 at 117, quite often the construction of the contract by a Court based on the parties' words and actions is different from that which they subjectively might have expected. 20. It being the case in my view that Mr Ibrahim did not enter a contract of bailment with the applicant as Mr Dimitrikakis's agent, but in fact on his own account, cl 10 quoted above still applies against Mr Ibrahim and not against Mr Dimitrikakis, so as to make the former liable to the applicant on this application, and there will therefore be an award against Mr Ibrahim in respect of the relief I propose in the applicant's favour and an award in favour of the second respondent, Mr Dimitrikakis. 21. Coming to the question of that relief, I have to say that the applicant when giving his evidence struck me as a person of very poor recollection, and as on occasions somewhat evasive and keen to put his own gloss on the events in question. I have chosen in determining the proper result to rely on medical records rather than the applicant's recollection in these circumstances. 22. The applicant was born on 4 July 1964. It would seem that he has been a cab driver for many years. He had a previous motor vehicle accident in 1987 or thereabouts which was eventually the subject of a claim for damages some years later. In that accident he suffered injury to his neck and it was for that injury that he recovered damages in due course. All this occurred before he joined Mr Ibrahim, if I may so put it. He said that he did not experience ongoing symptomatology and enjoyed a full recovery from this earlier accident, but in a report tendered in his own case from Dr John Davis, which was Exhibit A, he gave a history that he had "some degree of ongoing symptomatology" from the earlier motor vehicle accident to which I have referred, which was a "rear-end" one, although he did not "seek treatment over the years following his initial treatment and rehabilitation" (see p 2 of Dr Davis's report). This was not put to the applicant in cross-examination by Mr Hatzistergos or Mr Candy for the first and second respondents respectively, but as Dr Davis's report was tendered in the applicant's own case, there was no obligation under the rule in Browne v Dunn (1893) 6 R.67(HL) to put it to him. 23. The applicant maintained that in the accident in Mr Ibrahim's employ in 1997 he suffered injury to his neck and back and suffered immediate pain in those areas. However he was extensively cross-examined on the notes of his treating general practitioner, Dr Premarajah. In this respect, Dr Premarajah's report, which was Exhibit D, it is fair to say, asserts that the applicant had pain in his neck and low back and shoulders following a motor vehicle accident which occurred on 27 November 1997 when he was seen by a locum, Dr Tatossian, at Kingsgrove Medical Centre on Dr Premarajah's behalf, two days after the accident on 29 November 1997. The notes for that consultation appearing in Exhibit 3, which is the notes of Dr Premarajah's practice, do mention a complaint of sore neck, upper and lower back pain and shoulder pain, but on a subsequent consultation, 4 December 1997, it is recorded that x-rays of the thoracic, cervical and lumbar spine showed no abnormality. 24. The next consultation in the notes appears to be on 28 June 1997 and at that time the applicant was only complaining, according to the notes, of low back pain. On 5 August 1998 there is a consultation in which the applicant complains of some head symptoms, and on 13 August 1999 there is a record of the applicant complaining of back ache, amongst other symptoms, but no neck pain. There are other intercurrent consultations where the applicant complains of back ache but no neck pain. The next reference to neck pain that I am able to find in the notes, assisted by counsel - and they are not easy to read - occurs in a consultation in April 2001 if I read the date correctly. At that time the applicant was complaining of having collapsed in a hotel. 25. On 28 August 2001 there is likewise recorded a complaint of pain in the back and neck and the right shoulder. The applicant was cross-examined to suggest that this consultation in particular took place after he consulted his present solicitors in respect of this application, the suggestion being that he was keen to record neck pain in order to maintain a claim for a permanent impairment of the neck. I am not satisfied that that was the applicant's motive at that time, but the fact remains that the applicant's complaints of back pain have been reasonably consistent since the accident whereas his complaints of neck pain have not been so consistent, and indeed there was a wide gap between the occurrence of these complaints initially and their resumption. 26. Intercurrently the applicant suffered two other traumas of some significance, in the form of what seem to have been an assault by his wife in Fiji in 1998, and another assault in 2001 when he was in a hotel when some robbers arrived who assaulted him and caused him to fall on one of his friends, who was I gather prone on the ground at the time. There was no particular suggestion in the notes of Dr Premarajah that the applicant suffered any further injury to his back on these occasions, and the applicant was keen to assert in the course of cross-examination that he did not. 27. It is my view, doing the best I can on the applicant's evidence compared to Dr Premarajah's notes, that in fact he suffered a genuine back injury in the subject accident in 1997, at which time he also experienced some minor complaints of pain in his neck which resolved. The recurrence of these neck complaints some years later do not betoken to my mind any recrudescence of the neck injuries sustained in the present accident. 28. According to Exhibit A, which is the report of Dr John Davis, an injury management consultant, the applicant has a 25 per cent permanent impairment of the neck and 20 per cent permanent impairment of the back. Dr Davis thought the back impairment totally attributable to the 1997 motor vehicle accident presently in question, but thought that half of the neck impairment was the result of a previous condition. It is apparent that he was referring there to the earlier motor vehicle accident to which I have referred, which the applicant apparently told him occurred in 1986 rather than 1987. This appears to have been on the basis of the history to which I have already referred, to the effect that the applicant had some ongoing symptomatology as a result of this earlier accident. I am satisfied that this was the case, as indeed the applicant told Dr Davis, rather than the applicant experiencing a complete recovery from the effects of this accident, as he asserted in his evidence. 29. I do not think the applicant has on the balance of probabilities proved permanent impairment of his neck as a result of the present accident for reasons which I have already canvassed, based on the lack of continuity of symptoms in the neck in the applicant's complaints to Dr Premarajah as recorded in the latter's notes, as compared to the applicant's evidence which was of continuous pain in the neck since the present motor vehicle accident in 1997. 30. Comparing the applicant's evidence with the various medical assessments to which I shall come in a moment, I think the most accurate one is in fact that of Dr Davis so far as back impairment is concerned, and I am prepared to accept that the applicant does have a total of 20 per cent permanent impairment of his back. The accident was a relatively serious one, because according to the applicant's evidence which I accept in this respect, it being nowhere contradicted, the vehicle which hit him in the rear in the 1997 accident in question was travelling very fast, and his vehicle was shunted forward some distance. One would expect some degree of injury to the applicant in these circumstances. On the other hand, however, as I shall observe when dealing with the radiological evidence in particular, this was against the background of a considerable degree of degenerative changes in the applicant before the subject accident occurred, so far as his lumbar spine is concerned. 31. The applicant's evidence was that he only took two days off following the 1997 accident, and has thereafter continued with his cab driving career. This suggests that any back injury he might have suffered at that time was a relatively minor one, and that therefore any aggravation he might have experienced of pre-existing degenerative changes was equally minor, so that one should regard the contribution of the pre-existing degenerative changes to his overall impairment as somewhat greater than would be the case were his symptoms more severe ever since the aggravation until the present time. Dr Davis did not have any x-rays available to him when he assessed the applicant on 22 February 2001, so it was not possible for him to assess whether the precise nature of the injury was an aggravation of pre-existing degenerative changes. Dr Premarajah was content with describing the applicant's back injury as a soft tissue one in his reports which were Exhibit B and dated 27 March 2001 and 17 July 2002. 32. Exhibit C was a plain x-ray report on the applicant's cervical, thoracic and lumbar spine by Dr Frecker on the x-ray taken on 29 November 1997, and it refers to no particular abnormalities in the lumbar spine . However, Exhibit D, a report on a CT scan of the applicant's lumbar spine taken on 1 April 1999 by Dr R Taylor, refers to a slight disc bulging at L4/5 and a right-sided pars defect at L5. Mr Hatzistergos submitted that this was a degenerative feature likely to have been in existence before the applicant's accident, and Ms Wall for the applicant did not disagree with this proposition in submissions, and it seems to me that there is no suggestion that the pars defect itself was brought about by the accident in question and that it most likely predated it. That being so, there was a background of degenerative changes in the applicant's back upon which the 1997 accident was superimposed. 33. Dr A.L.G. Smith, orthopaedic surgeon, gave a report of 15 November 2001, which is Exhibit 1 in the respondent's case, tendered by Mr Hatzistergos, and it and a short annexure of the same date offered the opinion that the applicant in fact had a 10 per cent impairment of the back consequent upon lumbar degenerative disease, half of that impairment being however attributable to the accident of 27 November 1997. Thus, as I understand it, Dr Smith concedes that the applicant suffered an aggravation of degenerative changes in the subject accident resulting in a permanent impairment of the back which was 10 per cent in total, of which half should be deducted for the contribution of pre-existing degenerative changes, resulting in a net 5 per cent permanent impairment being the result of the accident in question. This gives some support to the applicant's case, although of course Dr Smith's assessment does not equal that of Dr Davis. 34. Exhibit 2 was a report of Dr A. Gonski, a neurosurgeon, dated 26 November 2001, and a short annexure of the same date, and Dr Gonski's simple view was that the applicant had recovered from the effects of the 1997 accident, and had no impairment or loss of use of any body part on a permanent basis as a result of it. Neither Dr Gonski nor Dr Smith support any permanent impairment of the neck, but some support for the existence of a permanent back impairment as a result of the accident in question is offered, as I have said, by Dr Smith. 35. Doing the best I can, as I have said, I am prepared to adopt the assessment of Dr Davis so far as back impairment is concerned. It seems to me that the trauma suffered by the applicant in the accident and his ongoing complaints of pain in his back, supported as they are by relatively (but not very) frequent notes in Dr Premarajah's records, sound in permanent impairment of the back of a total of 20 per cent rather than 10 per cent. I think the 50 per cent deduction for pre-existing degenerative changes contributing to the impairment within s 68A from any found impairment recommended by both Dr Davis and Dr Smith is appropriate. 36. The result is that the applicant will receive s 66 compensation in respect of a net 10 per cent permanent impairment of his back. He has failed, as I have said, to prove any permanent impairment of his neck to my mind as a result of the subject accident. He does not therefore pass the s 67 threshold for recovery of compensation under that section, although I have little doubt that his pain and suffering as a result of his back impairment has been considerable. 37. At the commencement of proceedings Ms Wall for the applicant attempted to amend the Application for Determination to claim pursuant to s 66 for permanent loss of use of the applicant's legs at or above the knee, based apparently on an assessment of a Dr Conrad, orthopaedic surgeon, for one of the respondents. In due course she sought to tender the report of Dr Conrad, but such tender was rejected on the basis that the report had not been served, and no reason had been shown why I should exercise the discretion in Pt 23 r 8 of the Compensation Court Rules to admit it. Be that as it may, I refused the application to amend today on the basis that, as was made clear in the submissions of both respondents, they had not come here today to meet such a case and were not ready to do so. 38. The choice with which I was faced was between permitting the applicant to amend the Application for Determination on terms that an adjournment take place, which would have resulted in considerable inconvenience to the parties opposing him in particular Mr Ibrahim who gave evidence and who no doubt experienced some economic loss as a result of his attendance today, although that was not made clear. The second choice was to allow the applicant liberty to apply in respect of any alleged permanent loss of use of either leg pursuant to s 66, on terms that the costs of such liberty to apply should be reserved, with a strong indication that because the applicant should have brought such a claim before today, it would be unlikely that the applicant would recover costs in respect of such liberty to apply. I have chosen the second course in the interests of avoiding the obviously large expenditure of time and legal costs which would have resulted from an adjournment of the whole matter today. 39. I make the following findings: 1. On 27 November 1997 applicant was driving a cab pursuant to a contract of bailment between himself and the first respondent Mr R Ibrahim. 2. On such date whilst so driving applicant suffered injury to his neck and back in a motor vehicle accident. 3. Resulting from such injury applicant has 20 per cent or 1:5 permanent impairment of his back in proportion to a most extreme case. 4. Deductable proportion from such impairment in respect of pre-existing degenerative changes to the lumbar spine to which such impairment is also due is 50 per cent thereof. 40. I make the following award against the first respondent: 1. $6,000 under s 66 for permanent impairment of back. 2. Respondent to pay applicant's costs. Recommend such costs include second conference fee at $250 and fee for advice on evidence. 3. Liberty to applicant to apply on seven days' notice in respect of leg losses under s 66, costs of such liberty to apply reserved. 41. I make an award for the second respondent. Ms H Wall instructed by Shanahan Tudhope appeared for the applicant. Mr J Hatzistergos instructed by T J Doubleday appeared for first respondent. Mr A Candy instructed by Vandervords appeared for the second respondent.