Charlton and Repatriation Commission
[2003] AATA 701
•25 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/983
VETERANS' APPEALS DIVISION )
Re ALEC CHARLTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date25 July 2003
PlaceBrisbane
Decision (a) The Tribunal sets aside the decision under the review and in substitution therefor determines that Alex Charlton suffers from war-caused osteoarthrosis of the left knee and war-caused osteoarthrosis of the right knee. The Tribunal notes that the earliest date of effect of this decision is 9 April 2002.
(b) The Tribunal remits the matter to the respondent for assessment of pension payable to the applicant in respect of his war-caused knee conditions.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – osteoarthrosis of left and right knee – whether conditions caused by war service – whether reasonable hypothesis can be established connecting conditions to applicant’s war service
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Byrnes v Repatriation Commission (1993) 177 CLR 564
Hill v Repatriation Commission [2001] FCA 1775REASONS FOR DECISION
25 July 2003 Mr IR Way, Member 1. This is an application by Alec Charlton (“the applicant”) for review of a decision of the Repatriation Commission dated 8 August 2002, and affirmed by the Veterans’ Review Board on 21 October 2002, which determined that the applicant’s osteoarthrosis of the left knee and osteoarthrosis of his right knee are not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and further documentary evidence as follows:
§Exhibit A1 Statement of Applicant dated 20 December 2002
§Exhibit A2 Report of Dr J Pentis dated 18 February 2003
3. The applicant gave oral evidence and he was represented by Ms K O’Gorman of Counsel, instructed by Gilshenan and Luton. The respondent was represented by Mr M Smith, Departmental Advocate.
4. The applicant was born on 6 March 1925 and saw operational service in the Royal Australian Navy from 15 October 1942 to 13 May 1946 and from 14 December 1946 to 13 December 1948.
5. The applicant has the following accepted service-related disabilities:
§Spondylolisthesis L4-5
§Bilateral sensori-neural hearing loss with tinnitus
6. His rejected non-service-related disabilities which are the subject of this appeal are:
§Osteoarthrosis of the left knee
§Osteoarthrosis of the right knee
7. The issue before the Tribunal is whether the applicant’s osteoarthrosis of his left knee and right knee are war-caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
8. The applicant claims his knee conditions are related to his war service and has put forward the hypothesis that he suffered a trauma to his knees while he was rendering operational service as a member of the ship’s crew of the Corvette HMAS Warrnambool when that ship, on 13 September 1947, whilst engaged in minesweeping duties on the Barrier Reef north of Cairns, struck a mine and was sunk.
Legislative Framework
9. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
10. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
11. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“196B Functions of Authority
…
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
12. The RMA, pursuant to section 196B(2) of the Act, has determined a SoP in respect of osteoarthrosis, namely Instrument No 81 of 2001. It is common ground between the parties and the Tribunal accepts that this SoP is relevant to its consideration of this matter.
13. This SoP relevantly provides:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about osteoarthrosis and death from osteoarthrosis.
(b) For the purposes of this Statement of Principles, ‘osteoarthrosis’ means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness, attracting ICD-10-AM code M15, M16, M17, M18 or M19.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that osteoarthrosis and death from osteoarthrosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person’s relevant service are: …
(j) suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint; or…
Other definitions
8.For the purposes of this Statement of Principles:
‘trauma to the affected joint’ means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;”
14. Section 119 relevantly provides as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
Applicant’s Evidence
15. In his written statement (Exhibit A1) dated 30 December 2002, the applicant said he injured his legs as a result of the mine explosion that sank the HMAS Warrnambool and that he had had no problems with or injury to his knees prior to this incident; nor had he suffered any other injury to his knees.
16. He described the mine incident, its aftermath and the effects of the incident on him as follows:
“3.The incident where my legs were injured happened on the 13 September 1947. I was on the Warrnambool and we were doing mine sweeping.
…
5.We had left Cairns and we were clearing up mines that had been prepared for the Coral Sea Battle.
6.We were in a narrow channel. I had gone up onto the bridge at 1600 hours to take watch. I relieved a young signalman who had only been on the ship for one week. From the boat deck to the bridge it was about 10 feet.
7.I walked out onto the port wing of the bridge. There was an ML Motor Launch sweeping out in front of the ship. It was important that our ship stay behind it, but there was a strong current in the channel and we drifted out in front of the sweep and unfortunately we hit a mine.
8.The explosion was absolutely enormous. I was standing on the steel deck and it sent a jar right throughout my body. It was such a massive jar that my top dentures cracked in half in my mouth and I spit them out. It was like getting an uppercut.
9.I then entered a kind of daze. I don’t know what happened, but I came out of it after a minute and I was standing up. My whole body was numb. The force of the explosion must have knocked me down onto the deck, but I don’t remember. It would not have been possible to stay standing. The explosion came from right below me. A phenomenal blast. The Captain was flat on the deck when I saw him. I only found out later that I had broken some of my ribs.
10.The force of the blast was so tremendous that the mast was snapped off at the deck. It went straight down onto the starboard side and smashed the whalers. The ship itself was cut in half and sunk after half an hour.
…
15.I remember that the ML was laying off the stern and everyone was screaming to me to jump on. From that point I don’t even remember going to Sydney. The only way that I know that I was there is because there was a photo taken of us at the airport.
16.Six men were killed and 21 were injured. The signalman that I relieved was lost over the side and never seen again.
17.I had to go to hospital. The blast was enough to break my ribs and crack my dentures. My whole body was in pain for a couple of weeks after the explosion. All I did was rest up in hospital. At the time I didn’t think about it too much except to be happy that I was alive.
18.My legs were numb and painful for some time. All of me was. There was a numbing pain from my feet to my hips. I had also injured my back.
19.I recovered from the blast, but over the years the pain in my knees has been increasing. It has gotten worse and worse. I have a terrible pain from my knees to my feet which makes mobility difficult. …”
17. In his oral evidence the applicant said that the mine incident took place some 14 hours out from Cairns and that he was dazed and blacked out at the time and remained this way until some ten days later when he was in hospital at Fremantle (HMAS Leeuwin). He said he was bruised all over as a result of the explosion.
18. Apparently, after the ship sunk the applicant was picked up by an ML, taken to Cairns and air-evacuated to HMAS Penguin in Sydney and then to HMAS Leeuwin in Western Australia through HMAS Lonsdale, a naval depot, in Melbourne (T4/1,3,4).
19. In his oral evidence the applicant said he could not recall having any treatment for his back but imagined he would have, nor could he recall any treatment for his knees.
20. It was the applicant’s evidence that he could not remember leaving hospital but that he had had a slight limp in his left leg at the time and this was now permanent and had become so for several years. He said that a similar situation was now developing in his right leg. He said he cannot now bend or crouch.
21. In respect of being shown as “disposal-duty” at the time he was at HMAS Penguin, HMAS Lonsdale and HMAS Leeuwin (T4/3-4), the applicant said that he was a signaller and he probably was seen as capable of sitting at a desk doing signal-type work and this would not have involved “walking around much”.. He said that he had been glad to get out of the mine incident and at the time he probably tried to forget his aches and pains and tried to get on with his life.
Medical Evidence
22. Dr J Pentis, Orthopaedic Surgeon, saw the applicant on 12 February 2003 and provided a written report dated 18 February 2002 (Exhibit A2).
23. In his written report, Dr Pentis commented as follows:
“(1) The gentleman does have degenerative arthritis in his knee joints. It is quite possible that the shock and force of a mine explosion blowing up the ship could have damaged the chondral surfaces of his knees and heralded the onset of further problems in the future. Though it may have been one of the initiating facts in causing degeneration to occur in the long term.
(2) It is also possible that having damage to one’s back could put extra strain in the knees, that is more bending at the knees than with the back on carrying out activities.
(3) It is to be noted that back problems can cause pain in the knees separate to there being any problems with the knees as well.”
24. Dr P Sharwood, Orthopaedic Surgeon, who reviewed the applicant on 15 June 1988, refers to the applicant’s “symptoms in his legs” and expressed the view that the source of these symptoms is his spondylolisthesis at L4-5. Dr Sharwood does not describe the “symptoms” in the applicant’s legs other than to say that they are significant in his left leg (T4/6). Dr Sharwood saw the applicant again about his knee problems on 24 November 1993 and reported:
“As you know, he has fairly classic symptoms suggestive of degenerative changes within the joint, pain along the medial joint line and pain at night. He was concerned, when he saw me, as to whether he had any cancer. I reassured him there was no evidence to suggest this but rather he had degenerative arthritis of the knee.
His condition almost certainly is one which is related to his early medial compartment osteoarthritis. An arthroscopy is indicated and I have arranged to do this on 22nd February 1994. In the meantime he is to be encouraged to do quadriceps and I have arranged for x-rays of his leg, on admission.” (T4/30)
25. Dr P Boys, Orthopaedic Surgeon, performed arthroscopy surgery on the applicant’s knees on 5 April 1994 and noted:
“Degenerative changes in the medial compartment and patello-femoral articulation were debrided and a chondroplasty performed. The lateral joint compartment was quite healthy.” (T4/31)
26. The applicant’s knees were x-rayed at Strathpine X-Ray on 27 May 2002 and Dr J Gray reported:
“In Summary: There is osteoarthritic change involving the medial compartment of the both knees and the patello-femoral joints and this is most marked on the left.” (T4/33)
27. Dr K Curtin, the applicant’s LMO, reported on 1 August 2002 the applicant’s symptoms as:
§“Always has pain and reduced movement of knees – Reduced movement of lower back – with almost any activity”;
§that the clinical onset of osteoarthrosis of his knees was “over 20 years ago”;
and opined that the symptoms were 2/3rds due to knee problems and 1/3rd due to lower back problems. In a subsequent report dated 23 September 2002 (T4/59), Dr Curtin noted that the applicant had been attending his practice since 1988 and stated:
“…This extremely pleasant, honest gentleman has a long history of lower back pain (Lumbar Spondylosis). Over the last few years there has been increasing problems with paraesthesia/pain and discomfort of the lower legs.
In my opinion these latter symptoms are, in all probability, a direct result of his lower back pain already accepted as a Service Related Injury.”
Submissions
28. Ms O’Gorman, for the applicant, stated that it was common ground between the parties that the applicant suffers from osteoarthrosis of both his knees. She submitted that the applicant’s hypothesis (as put forward in paragraph 8) is consistent with and upheld by factor 5(j) of the relevant SoP, namely, “suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint”.
29. It was further submitted that on the material before it the Tribunal would not be satisfied, beyond reasonable doubt, that the facts necessary to support the applicant’s hypothesis were disproved or that some other fact inconsistent with the hypothesis was proved.
30. In respect of the central issue in this case, namely whether the applicant suffered a “trauma to the affected joint” as required by the relevant SoP, it was submitted that the mine incident caused a discrete injury to the applicant’s knees and that the applicant developed symptoms and signs of pain and tenderness and either altered mobility or range of movement of his knees within 24 hours of the incident and lasting for at least seven days.
31. Mr Smith, for the respondent, accepted that the applicant suffers from osteoarthrosis of both knees. However, it was submitted that this condition appears to have an onset of 1992 for the left knee and at some time post-1994 for the right knee and that the medical evidence before the Tribunal supports the view that the applicant’s knee problems are attributable to nerve root compression from his spondylolisthesis.
32. Mr Smith pointed out that in 1992 the applicant was 67 years old and submitted that at this age the condition of osteoarthrosis is unexceptionable. Further to this argument, Mr Smith submitted:
“5.Likewise, although the ‘reasonable hypothesis’ SoP provides no time limit for the onset of osteoarthrosis, the ‘reasonable satisfaction’ SoP requires the onset to be within 25 years of the trauma. After that, there would only be a small possibility that the osteoarthrosis was due to the trauma. In the applicant’s case, the lapse was not 25 years, or even 35 years, but 45 years.
6.The point is that we are operating at the very lowest limit of probabilities. The SoP is still valid, but it is important to be absolutely sure that the full requirements of the trauma definition are satisfied. If any slack is allowed, then the probability will have been reduced so low that it will have become tenuous.
7.In the present case, the explosion took place on 13.9.47 (T4, p 2). He obviously suffered jarring to his knees, and the major symptom was numbness. He appears to have been concussed, and his memory is hazy of events in the immediate aftermath of the explosion. It would be hard to establish, to the required level of proof, the very existence of ‘pain, and tenderness, and either altered mobility or range of movement’ within 24 hours of the accident.
8.Even if it could, there is no evidence that it continued for a whole 7 days. According to contemporary records (T4, pp 3-4) he received no treatment for his knees, but only for his fractured ribs. On 17.9.47, which was four days after the explosion, he was released to duty. Two days after that, his ribs were re-strapped, and he was again released to duty. The fractured ribs alone would have been sufficient to justify any subsequent restrictions on duty.”
Consideration
33. In Repatriation Commission v Deledio (1998) 49 ALD 193, the Federal Court of Australia summarised the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (at 206)
34. In this case it is common ground that the applicant suffers from osteoarthrosis of his left and his right knee and on the material before it the Tribunal so finds.
35. After consideration of all the material before it, the Tribunal determines that this material points to a hypothesis as contended by the applicant and as set out in paragraph 8 above.
36. As has already been indicated, there is no dispute between the parties and the Tribunal accepts that there is in force a relevant SoP determined by the RMA, namely, Instrument No 81 of 2001, Osteoarthrosis.
37. Turning then to the third step as set out in Deledio’s case. For the applicant’s hypothesis to be reasonable it must fit within the template of the SoP and in this case must contain the factor “suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint”, as that factor is defined in the SoP. In addressing this question, the Tribunal is mindful that it is not engaged on a fact-finding mission. If the raised facts fit within the template of the relevant SoP then the hypothesis can be considered a reasonable hypothesis.
38. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is of the opinion that the raised hypothesis does contain factor 5(j), namely, suffering a trauma to his knees before the clinical onset of osteoarthrosis in his knees and that this trauma arose out of the applicant’s relevant service. The Tribunal therefore finds that the hypothesis put forward for the applicant is a reasonable hypothesis.
39. The Tribunal must then decide, pursuant to section 120(1) of the Act, whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s knee conditions are war-caused. The applicant’s claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is consistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 564; Hill v Repatriation Commission [2001] FCA 1775).
40. On all of the material before it, including the submissions of both parties, the Tribunal cannot be satisfied, beyond reasonable doubt, that the applicant’s osteoarthrosis of both knees was not war-caused.
41. In arriving at this conclusion the Tribunal has found the applicant to be a credible witness who, to the best of his ability and recall, has answered the questions put to him frankly and truthfully.
42. The Tribunal accepts that the mine explosion was, as the applicant put it, absolutely enormous, and that as a result of this explosion the Tribunal cannot be satisfied, beyond reasonable doubt, that the applicant did not suffer a discreet injury to his knees as he has described. Furthermore, the Tribunal is mindful that the medical reports in respect of the applicant within the period of seven days post-explosion are somewhat lacking in detail. However, the records, such as they are, reinforce the point that not all of the applicant’s conditions, at the time, were recorded, eg his back condition.
43. In any event, accepting the applicant’s explanation of what was meant by “disposal-duty”, the records are not inconsistent with his account of his injuries and their effects, such that the Tribunal cannot be satisfied, beyond reasonable doubt, that the applicant does not meet the symptoms as required by the definition in the relevant SoP of “trauma to the affected joint”.
44. It follows from the findings and reasons given above that the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s osteoarthrosis of both knees is war-caused.
45. The Tribunal sets aside the decision under the review and in substitution therefor determines that Alex Charlton suffers from war-caused osteoarthrosis of the left knee and war-caused osteoarthrosis of the right knee.
46. The Tribunal remits the matter to the respondent for assessment of pension payable to the applicant in respect of his war-caused knee conditions.
47. The Tribunal notes that the earliest date of effect is 9 April 2002.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 4 July 2003
Date of Decision 25 July 2003Counsel for the Applicant Ms K O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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