Butler v Coles Group Supply Chain Pty Ltd
[2023] NSWPIC 353
•18 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Butler v Coles Group Supply Chain Pty Ltd & Ors [2023] NSWPIC 353 |
| APPLICANT: | Raymond Keith Butler |
| FIRST RESPONDENT: SECOND RESPONDENT: | Adventist HealthCare Pty Ltd Coles Supply Chaim Group Pty Ltd |
| Member: | Jane Peacock |
DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Industrial deafness; dispute about last noisy employer; evidence weighed in the balance; Held – on the balance of probabilities; second respondent found to be the last employer who employed the worker in employment to which the nature of the injury of hearing loss was due; matter remitted for referral to a Medical Assessor. |
| determinations made: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of Injury: 3 August 2006 (deemed). (b) Body systems/parts: hearing loss. (c) Method of assessment: whole person impairment. 2. The documents to be forwarded to the Medical Assessor are as follows: (a) the Application to Resolve a Dispute and all documents attached; (b) first respondent Reply and all documents attached, and (c) second respondent Reply and all documents attached. 3. The Medical Assessor should also be asked to indicate whether hearings aids are reasonably necessary as a result of injury deemed to have occurred on 3 August 2006. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the application), Mr Raymond Keith Butler (Mr Butler) seeks lump sum compensation as a result of injury in the form of noise induced hearing loss and treatment in the form of hearings aids.
The first respondent is Adventist HealthCare Limited (Adventist). Adventist was insured at the relevant time by AAI Limited t/as GIO for the purposes of workers compensation.
The second respondent is Coles Group Supply Chain Pty Ltd. Coles was self insured at the relevant time by Coles Group Limited for the purposes of worker’s compensation.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffers from sensorineural hearing loss (industrial deafness) or noise induced hearing loss.
There are two respondent employers. Adventist is the first respondent who employed
Mr Butler last in time. Coles is the second respondent who employed Mr Butler first in time.The liability dispute pertains to which employer, Adventist or Coles, is the employer who last employed Mr Butler in employment the nature, tendencies and characteristics of which gave rise to a real risk of industrial deafness.
Both employers point the finger at each other. Adventist, the lats employer in time, disputes it was a noisy employer. Coles does not dispute it was a noisy employer but disputes it was the last noisy employer. That is, the dispute is whether Mr Butler was employed with Adventist in an employment to the nature of which the injury of hearing loss was due.
Regardless of which employer is found liable, it is agreed the matter would be remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, as a result of injury in the form of hearing loss.
In the event Coles is determined to be the relevant last employer, it is agreed that the deemed date of injury is 3 August 2006.
10.In the event Adventist is determined to be the relevant last employer, it is agreed that the deemed date of injury is 14 September 2018.
11.The Medical Assessor would also be asked to indicate whether hearing aids are reasonably necessary as a result of injury in the form of hearing loss.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
12.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
13.The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
For Mr Butler:
(a) the application and attached documents.
For Adventist
(a) the first respondent Reply and attached documents with the exception of the portion of the Factual Investigation report which was objected to and not pressed as recorded on the transcript and not repeated here.
For Coles
(a) the second respondent Reply and attached documents.
Oral evidence
14.Mr Butler did not seek leave to adduce oral evidence and neither counsel for the respondents sought leave to cross-examine Mr Butler.
FINDINGS AND REASONS
15.There is no dispute that Mr Butler suffers sensorineural hearing loss (industrial deafness) and as this is a claim for lump sum compensation the matter will need to be remitted for referral to a Medical Assessor to determine the degree of permanent impairment.
16.The question for determination is which respondent, Coles or Adventist last employed
Mr Butler in employment, the nature, tendencies and characteristics of which employment gave rise to a real risk of industrial deafness.17.Essentially each employer points the finger at each other. Adventist was relevantly the last employer in time. Adventist disputes it was a noisy employer. Coles does not dispute it was a noisy employer but says it was not the last noisy employer and that Adventist, who employed Mr Butler after Coles was the last noisy employer with whom liability should rest.
18.The liability dispute must be decided on the evidence and in accordance with the law.
19.There are special provisions in the Workers Compensation Act1987 (the 1987 Act) in respect of injuries in the form of hearing loss contained in s 17 as follows:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,
(c) compensation is payable by—
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the ‘relevant period’ means—
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
(f) where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g) where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2) Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
20.Section 17 of the 1987 Act, as the Court of Appeal pointed out in A and G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41 (Civitarese) at 43:
“…provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary, under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that the employment brought about or contributed to the disease; See Smith v Mann (1932) 47 CLR 426 at 440); Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty ltd v Road Traffic Authority 91992) 28 NSWLR 679 at 689-690, section 17 proceeds on a series of fictions or assumptions, upon which a workers entitlement to recover an award under s 66 is based.”
21.In Elias Fadallah v Canterbury City Council [2004] NSWWCCPD 6 (Fadallah) Deputy President Byron recounted the relevant law relating to hearing loss claims as follows:
“31. The Appellant Worker bears the onus of proving that the Respondent Employer was a noisy employer, as required by section 17(1) of the 1987 Act: Galdemar v Astar Enterprises Pty Ltd (1998) NSWCC 47; Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55. He is required to prove on the balance of probabilities, that his employment with the Respondent Employer was ‘…an employment to the nature of which the injury was due…’.If the Appellant Worker is able to satisfy this test, the evidentiary onus shifts to the Respondent Employer, to seek to establish that protective measures that were in fact in place, excluded the possibility of any such injury: Blayney Shire Council v Lobley & Another (supra) at 65. Kirby J observed, at 55:
‘There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.’
He went on to say, at 56:
‘If that nature was of a kind which could cause hearing loss, the burden of carrying all past hearing loss falls upon that employer. If that employer contends, notwithstanding the ‘nature’ of its employment, that it did not in fact cause any hearing loss (and thus that ‘the injury was not due’ to the nature of the employment properly understood) the forensic onus of exculpating itself falls upon it…it is enough for the worker to succeed against that employer to show that the ‘nature’ of the employment was such as to give rise to a hearing loss.’
32 The Court of Appeal in Blayney Shire Council v Lobley & Another (supra) reviewed the relevant authorities as to the interpretation of s 17(1) of the 1987 Act. It said per Cole JA, at 64:
‘…it follows from these authorities that in determining whether, at the time when notice of injury was given, Mr Lobley was ‘employed in an employment to the nature of which the injury was due’, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered.’
The Court went on to say, per Cole JA, at 65:
‘…it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due’.”
22. Deputy President Byron went on to say in Fadullah:
"33.Establishing that the ‘tendencies, incidents or characteristics’ of employment were of a type to give rise to hearing loss is a forensic task relying upon the weight of some or all of a range of matters that may include a worker’s evidence, the proof of relevant facts about the specific employment, the applicability of various industry standards, and expert scientific and acoustic testing and reports. It will be for the decision-maker to weigh all of the available evidence and if satisfied on a real, as opposed to a theoretical basis, that ‘…there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as ‘noisy'’: Gordon v General Cargo Forwarders Pty Ltd [2000] 20 NSWCCR 577 at 590; Ambulance Service of NSW v Daniel (2000) (supra). In the latter case, Hodgson CJ in Eq said, at 707: ‘In my opinion, the relevant authorities support the view that more than a theoretical risk, or a bare possibility, is required.’ His Honour went on to say that in Smith v Mann (1932) 47 CLR 426 at 443, Starke J considered that the test involved a question of whether the type of injury was ‘incidental to that class of employment’. He said that the passage containing that statement was quoted by Cole JA in Blayney Shire Council v Lobley & Another (supra), without any suggestion that the test stated there was to be departed from. Further, he said, at 708:
‘In my opinion, this is to say much the same as to say that the type of injury is incidental to that class of employment, or that the nature of the employment is apt to produce the relevant injury.’”
23.Accordingly, that is the proper question to ask, that is, whether the tendencies, incidents or characteristics of Mr Butler’s employment with Adventist are of a type which could give rise to a real risk of injury in the form of industrial deafness.
24.This question must be decided on the evidence that is before me in this case. I have to weigh all of the evidence in the balance, including the expert opinions, and make a decision on the balance of probabilities.
25.Turning then to an examination of the evidence.
26.Mr Butler provided evidence in a statement dated 5 December 2022.
27.Mr Butler gave evidence that he was employed from 1990 until 2006 by Coles as a storeman and forklift driver in the distribution centre for Coles. He gave evidence about his exposure to noise when working for Coles. It is not disputed that the employment with Coles was noisy employment.
28.Mr Butler gave evidence that from 2006 until 2018 he was employed as a storeman/forklift driver by Adventist at the Sanatorium Hospital in Wahroonga.
29.He gave evidence as to his exposure to noise in this employment as follows:
“I worked 91/2 hours per day, 4 days per week. I was exposed to noise from the forklift for three to five hours per week. The noise was so loud that if I was to have a conversation with a person standing about one metre away I would have to raise my voice. No ear protection was provided.”
30.Dr MacArthur, ear nose and throat head and neck surgeon, was the independent medical expert (IME) qualified on behalf of Mr Butler to provide an independent opinion.
31.Dr MacArthur saw Mr Butler on 2 March 2022 and provided a report to his lawyers on
4 April 2022.32.Dr MacArthur recorded a history of 40 years of noise exposure. Relevant to this liability dispute, he recorded a history as follows:
“From 1990 until 2006 Mr Butler was a storeman and Forklift Driver in the distribution centre of Coles. He found forklift driving to be very noisy and he had no ear protections.
From 2006 until 2018 Mr Butler was a storemen, forklift driver and truck driver employed by Adventist health care the sanatorium Hospital in Wahroonga. He had no ear protection. Mr Butler retired in 2018 and has not worked since. At Adventist Health acre he worked 91/2 hours per day 4 days per week and he states that he was exposed to very loud noise for 5 hours per day. He often found he had to raise his voice in order to talk to a fellow employee standing only one metre away from him.
Recreationally he has bee exposed to the occasional noise of a motor mower and a whipper snipper and a blower. He has never used a chainsaw.”
33.Dr McArthur conducted an examination and performed an audiogram.
34.He opined as follows:
“Mr Butleris suffering from a bilateral mild low to mid tine and moderate to severe high tone sensorineural deafness, slightly more marked on the right side than the left, His last noisy employer being Adventist Health Care. In my opinion, his employment there was employment of the nature in which the tendencies, incidents and characteristics of his employment have been such as to give rise to a real risk of boilermaker’s deafness or deafness of a similar origin.”
35.Dr MacArthur assessed 12% WPI as a result of injury and opine that it was reasonably necessary for Mr Butler to be fitted with hearing aids.
36.Counsel for Adventist submitted that in coming to his conclusion that Adventist was the last noisy employer, Dr MacArthur has relied on an incorrect history that Mr Butler was exposed to noise for five hours per day when in fact his statement evidence is that he was exposed to noise for five hours per week. Counsel for Adventist submitted that this mistake in the history in a material respect means that a fair climate for Dr Macarthur’s opinion has not been provided and that no or little weight can be accorded Dr MacArthur’s opinion that Adventist was the last noisy employer.
37.Counsel for Mr Butler submitted that this error in the history was without consequence.
38.Adventist relied on a factual report from Lee Kelly & Associates dated 11 August 2022 and an IME report from Dr Howison, ear nose and throat surgeon, dated 5 September 2022.
39.Dr Howison saw Mr Butler on 26 August 2022 and provided a report dated 5 September 2022.
40.Dr Howison recorded an employment history as follows:
“Mr Butler gave a history of having been employed from 2006-2018 by Adventist Healthcare Limited. From 2006-2015 he worked in the main Stores and described being exposed for approximately one hour per day to the noise of forklift and trucks. I note that earplugs were available buy he did not use the. For the rest of the working day there was no significant noise, From 2015 to 2018 Mr Butler was transferred into operating theatres and was not exposed to any noise. I note that no pre-employment audiogram was carried out . Mr Butler has not worked since 2018.
I note that no noise survey was carried out at Adventist Healthcare Limited in the main Stores. Mr Butler made no complaint about the noise at Adventist Healthcare Linted and neither has any other employee,
From 1990-2006 Mr Butler was employed by Coles Distribution Centre. He said that for six hours per day he was exposed to very loud noise from forklifts, He explained that he would have to shout above this noise to be heard by colleagues at a distance of one -metre and I therefore conclude from this that he was working exposed to 8hour equivalent continuous A-weighted sound pressure level of ‘LAeq 90dB(A) or above’. More than tow hours of exposure to this level of noise would be sufficient to be responsible for the causation of industrial deafness.”
41.Dr Howison conducted an examination and an audiogram.
42.Dr Howison concluded that Mr Butler suffered from noise induced hearing loss.
43.Dr Howison opined that Adventist was not the last noisy employer and that Coles was the last noisy employer as follows:
“In my opinion, Mr Butler’s employment with Adventist healthcare Limited does not possess the necessary tendencies, incidents and characteristics capable of casing noise induced industrial deafness. In my opinion Mr Butler’s last noisy employer is Coles Distribution.”
44.He went onto state that he disagreed with Dr MacArthur’s opinion that Adventist was the last noisy employer.
45.Coles qualified IME Dr Harrison to provide an opinion.
46.Dr Harrison, ear nose and throat specialist saw Mr Butler on 19 January 2023 and provided a report dated 19 January 2023.
47.Dr Harrison recorded an employment history as follows:
“Notional date of injury: Apparently 2006 when he finished with the respondent Coles.
I obtained a history of exposure to loud noise at work with the respondent Coles over a period of 16 years from 1990 until 2006. He said that he was a forklift driver for the first 14 years of his employment and that for the last 2 years he was a labourer because of neck problems which interfered with his forklift driving. When he was outside the warehouse he drove a diesel forklift which was very noisy; he said that the noise of the motor was such that he would have to raise his voice for someone with normal hearing to understand him at a distance of about 1 meter suggests that over an 8 hour working day, the noise had the potential to damage hearing. He also said that when the motor was revved to lift a load the noise was much louder and that he would have to shout to be heard at that distance which suggest that the noise had the potential, for damage hearing in a lesser time. When he worked inside the warehouse he drove an electric forklift which was noisy when the tyres (the lifting progs) went through the mast. Again applying the rule thumb mentioned above he would have to raise his voice at these times.
He spent about equal amount of time working inside and outside the warehouse when he was a forklift driver. He worked 9 hours a day, 4 days a week, Noise was present for about 7 hours a day. For the last 2 years he worked on 2 noisy machines, a carboard compactor and a plastic compactor and when using either of which he would have to shout to be heard at 1 metre. Also during these last 2 years of his employment he would be exposed to loud noise from a seat on a lawn mower and a whipper snipper for a day, about once every 3 weeks. Hearing protection was only worn when doing this occasional work and not at any other time,
From the history I obtained I reached the conclusion that the noise had the potential damage hearing but this does not mean that it did so.
After working for the respondent he worked for Adventist Healthcare as a storeman from 2006 until 2018 when he retired. He was a forklift driver for the first 6 years but said there was not nearly as much noise as with the respondent. He drove gas forklifts outside the warehouse and they made noise such that he would have to raise his voice for someone with normal hearing to understand him at a distance about 1 metre and inside the warehouse he drive electric forklifts which were noisy of themselves but which made noise when they were driven over sough surfaces. He was exposed to noise from the forklift for about 2 to 3 hours per day.
After 2012 he worked in the store of the operating theatre which did not expose him to loud noise. He has not worked since then. I was not convinced that this noise exposure had the potential to damage hearing and believe that it did not. He has not worked since ceasing this employment.
Prior to working with the respondent, the worker was employed a meat inspection not exposed to significant noise.
The worker done no military service and has had no noisy pastimes.”
48.He conducted a physical examination and audiogram.
49.He came to the following diagnosis:
“The diagnosis is bilateral sensorineural deafness most likely due to cochlear otosclerosis.”
50.Dr Harrison went onto attribute the 26.9% binaural hearing impairment (BNI) assessed to cochlear otosclerosis and not to noise exposure in his employment with Coles although he accepted such employment to be noisy.
51.Coles does not dispute that it was noisy employer and if found to be the last noisy employer that the matter should be remitted for referral to a Medical Assessor.
52.Dr Harrison when asked to comment on Dr MacArthur’s opinion he states as follows:
“I assessed the noise exposure with Adventist Healthcare to be less noisy than
Dr Macarthur.”
53.Dr Harrison qualified to provide an opinion on behalf of Coles, takes the opportunity to say that he essentially disagrees with Dr MacArthur’s opinion (qualified on behalf of Mr Butler) that liability rests with Adventist. Dr Harrison took a detailed history of noise exposure with both employers and he clearly considered Coles to be the last noisy employer when his report is read as a whole. Of course he went onto attribute the hearing loss to another condition but that for present purposes is really irrelevant to this determination because it is agreed that the matter will be remitted to a Medical Assessor no matter which employer is found to be the last noisy employer.
54.I have to make a determination on the balance of probabilities on the evidence that is before me. I have to weigh all of the evidence in the balance including the opinions of the independent medical experts whose reports are in evidence before me.
55.Dr MacArthur, IME qualified on behalf of Mr Butler, considers that Adventist is the last noisy employer but he has an incorrect history of exposure to loud noise from forklifts five hours per day when according to Mr Butler own statement of evidence it was five hours per week. In these circumstances there was a not a fair climate for Dr MacArthur’s opinion as to who was the last noisy employer. It is otherwise conceded that Mr Butler suffers noisy induced hearing loss and whichever employer is found liable, the matter would need to be referred to a Medical Assessor to assess the degree of permanent impairment. Dr Howison, qualified on behalf of Adventist, provided an opinion that Adventist was not a noisy employer but Coles was the last noisy employer. Dr Harrison, qualified on behalf of Coles, considered that the noise exposure at Coles had the potential to damage hearing but the noise exposure at Adventist did not. Dr Harrison pointed out that he did not find the same level of noise exposure at Adventist as Dr Macarthur had. Dr Harrison’s opinion when read as a whole and weighed in the balance with the other evidence that is before me, including Mr Butler’s statement of evidence and the admitted parts of the factual investigation report tendered in evidence in Adventist’ case and which is consistent with Dr Harrison’s opinion about the nature, extent and duration of the noise exposure with Adventist, together with Dr Howison’s opinion, supports on balance, a finding that Coles is the last employer to have employed
Mr Butler in employment which had the tendencies, incidents and characteristics to damage hearing. That is, Coles was the last employment the nature of which the injury in the form of hearing loss was due.56.When weighing all of the evidence in the balance, I am satisfied on the balance of probabilities that Coles was the last noisy employer. In the event this was my finding it was agreed that the deemed date of injury was 3 August 2006 and the matter was to be remitted to referral to a Medical Assessor.
57.Accordingly, I order as follows:
(a) The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows:
(i)Date of Injury: 3 August 2006 (deemed).
(ii)Body systems/parts: Hearing loss.
(iii)Method of assessment: whole person impairment.
(b) The documents to be forwarded to the Medical Assessor are as follows:
(i)the Application and all documents attached;
(ii)first respondent Reply and all documents attached, and
(iii)second respondent Reply and all documents attached.
(c) The Medical Assessor should also be asked to indicate whether hearings aids are reasonably necessary as a result of injury deemed to have occurred on
3 August 2006.
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