Humphrey v Shire of Campaspe and VWA
[2010] VCC 225
•31 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03030
| NEVILLE GRAHAM HUMPHREY | Plaintiff |
| v | |
| SHIRE OF CAMPASPE | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 15,16 and 17 March 2010 |
| DATE OF JUDGMENT: | 31 March 2010 |
| CASE MAY BE CITED AS: | Humphrey v Shire of Campaspe & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0225 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, serious injury application – general damages and pecuniary loss – credit of plaintiff in issue- occurrence of injury and consequences of injury in issue.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC and | Saines & Partners Pty Ltd, |
| Mr M A Nightingale | Ballarat | |
| For the Defendants | Mr P D Elliott QC and | Herbert Geer |
| Mr I S Gourlay | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding seeking damages for the pain and suffering and economic loss consequences of an injury allegedly suffered by him in the course of his employment with the first defendant on 9 April 2002.
2 The injury relied upon by the plaintiff in the proceeding is an injury to the left elbow involving an aggravation of pre-existing osteoarthritis of the left elbow.
3 It is conceded by the defendants that the condition from which the plaintiff suffers in his left elbow is such that it has consequences which meet the serious injury test in relation to both pain and suffering and pecuniary loss.
4 In this proceeding, the parties require my determination upon two issues which have been agreed by the parties, in the following terms:
Question 1: Did the plaintiff suffer an aggravation to his elbow
condition in the fall on 9 April 2002? (“the fall”)[1]Question 2: Did the aggravation materially contribute to the plaintiff’s impairment consequences to his left elbow?[1] For the purpose of the proceeding, the defendants concede that on 9 April 2002, the plaintiff was involved in a fall in which he fell from a ladder whilst undertaking maintenance work in the course of his employment with the Shire. The issue which arises with respect to the fall involves the question as to whether, in the fall, the plaintiff suffered an aggravation to his elbow, and as to the effect of that aggravation as expressed by Question 2.
5 In the proceeding, the plaintiff and his wife, together with Mr Dugall James, an orthopaedic surgeon, gave evidence and were cross-examined. In addition, the parties relied upon the exhibits tendered in the course of the proceeding.
6 In his affidavit dated 28 March 2008, the plaintiff said:
•
That he left school before completing Year 8 and that while his reading skills were fair, he avoided writing if possible by reason of his poor spelling.
•
That upon leaving school he had been employed in unskilled labouring work which included working as a vegetable picker; a vine worker; a general labourer; and in employment by the City of Maryborough; the Shire of Tullaroop; and the City of Ballarat. He said that he commenced employment with the Shire of Campaspe (“the Shire”) on a one-year contract in February 2001 within the Parks and Gardens section of the Shire and that at the conclusion of that contract he was kept on as a casual employee within the Shire’s Building Maintenance section where he worked as a full-time labourer. He described this work as involving relatively heavy physical work which required the full and free use of his dominant left arm.
•
That on 9 April 2002, while standing on a ladder in the course of his employment with the Shire, the ladder slipped, causing him to fall, and that in the course of the fall he injured his left elbow, left knee, low-back and his groin.
•
That following the happening of the fall, he saw his general practitioner, Dr Shaw, and took two days off work. He said, as a result of discussions which he had with the Shire when reporting the fall, Dr Shaw did not write out a WorkCover medical certificate. On his return to work the plaintiff said that his elbow and back were still painful and he had restricted use of his arm. He described his return to work as involving some heavy lifting and the digging of holes; and that these activities caused flare-ups in his elbow, and back pain which required him to take further days from work.
•
That on 27 June 2002, he ceased working for the Shire, at which time his elbow was significantly restricting him in carrying out his normal duties. He said that he consulted Mr James, who had previously treated his left elbow, and that Mr James operated upon his elbow on 17 July 2002.
•
That before the subject injury he had suffered from problems with his left elbow, in respect of which he consulted Mr James in early 2002. He described the elbow as causing him difficulties before the fall but that those difficulties had at no time affected or restricted his ability to do his normal duties with the Shire. He said that his elbow symptoms increased substantially following the fall, as did the range of restrictions resulting from his left elbow.
The Plaintiff’s Viva Voce Evidence
7 The plaintiff said that before commencing employment with the Shire he had worked for other country Shires, including Maryborough, Ballarat and Tullaroop, and that he had kept the fact of his elbow injury and its continuing problems quiet following the occurrence of the fall so that he could keep working.
8 The plaintiff agreed that he had had problems with his elbow for twenty years and that his condition dated back to the period in which he was employed with the City of Maryborough. He said that he consulted Mr James in January 2002 because his elbow was sore but that it had never restricted him from working. He accepted that in January 2002, Mr James had arranged for him to have an operation on his elbow.[2] He agreed that as at 20 December 2001, he was experiencing problems with flexing and extending his elbow. He said that following the fall he again consulted Mr James on 5 July 2002. He accepted that he told Mr James at that time that he had decided that he wanted to go ahead with the planned surgery as he had been laid off from his work with the Shire, and qualified his position in this regard by stating that after the fall his elbow had been aggravated to the extent that he decided that he would go ahead with the surgery.
[2] It is not contested that the planned surgery did not proceed.
9 It was put to the plaintiff that in July 2002 he was having some problems with his wrist. The plaintiff said that these problems were not work-related, that he recognised the problem as probably being a carpal tunnel problem, that he had no discussion with Mr James as to how the problem arose and he did not know how it arose.
10 The plaintiff agreed that following the subject fall when he sought treatment from his general practitioner, Dr Shaw, he did not tell Dr Shaw about the fact that the fall had caused the problem with his elbow. He explained the reason for this in the following terms:
“Because I didn’t want to – I was hiding it because I didn’t want to
jeopardise my chance of getting employment by doing that.”
11 The plaintiff agreed that he had filed the Worker’s Compensation Form[3] and that he had submitted with that Form a Medical Certificate[4], which made no mention of the problem with his elbow. He further agreed that he had subsequently filed a further Medical Certificate which referred to his left elbow, on 8 January 2003.[5] He said that he had sought the latter Certificate as he had been told by a representative of JLT Insurance that he required a Certificate which set out his injuries. He said that his reasons for not telling his doctors about his elbow injury until October 2002 was that:
“I wanted to retain employment. I live in a small town and once you go through things like that you just don’t get any work or you get sacked; one or the other.”
[3] dated 14 August 2002; defendants’ Exhibit 1
[4] dated 22 August 2002; defendants’ Exhibit 2
[5] Defendants’ Exhibit 3
12 It was accepted by the plaintiff that in July 2002 he had told Dr Shaw about his carpal tunnel syndrome but that he had not told Dr Shaw about the problem with his elbow.[6]
[6] It was submitted on behalf of the defendants, that having regard to the fact that the plaintiff had by this time ceased employment with the Shire, there was no reason to hide from Dr Shaw the presence of any problems that he was experiencing with his elbow and that his failure to mention the presence of any such problems to Dr Shaw at this time was an indication that the problems were not significant.
13 It was further accepted by the plaintiff, that as at July 2002, he had obtained from Mr Jones a Centrelink Certificate with respect to his left elbow injury and not a WorkCover Certificate.
14 The plaintiff did not take issue with the fact that on 22 October 2002, Dr Shaw made a note in his medical records to the following effect:
“The patient was seen on 10th April 2002 with an injury where he had a fall off a ladder the day before and sustained a bruised left loin. A WorkCover Certificate was given but not handed in. The patient now states that his left elbow pain is a result of that injury on 9 April 2002. He had surgery of the left elbow on 16 July 02 by Mr D Jones, orthopaedic surgeon. Still having problems with that now. He’s claiming that the left elbow is work-related from the injury on 9th April 2002.”
and that this was the fist time he had told Dr Shaw of the fact that he had
injured his shoulder in the fall.15 It was put to the plaintiff that following the fall he took only a couple of days off work. The plaintiff denied this. He said that he had more than two days away from work and that his absences had not been documented because he had been positively discouraged from making a formal claim in respect of absent days related to the fall. He said that he had been told by his work foreman that he would be paid for any absences related to the fall as the Shire would pay him whether he was at work or not.
16 The plaintiff said that he was hoping that his job would become permanent and that while he had aggravated his injury by hitting his arm on the bench, he did not bring this to the attention of his doctors or the Shire because:
“Well, if I had’ve said anything I wouldn’t have got a job there anyway. If I had’ve said something because they – councils – they just – they’d sack you.”
17 The plaintiff said that when he commenced employment with the Shire he did not tell them about his pre-existing problem with his elbow because he did not wish that problem to interfere with him obtaining employment. Nor did he mention the fact that Mr James had recommended that he undergo an operation. He said following the fall his elbow symptoms became worse, that they deteriorated to a stage where he had to have something done about them because:
“Well, I was having trouble moving it. I was having trouble using it. I had
a lot of pain in it and, yeah, just – it just worsened.”
18 The plaintiff described his work before the fall as involving heavy manual work which, prior to the fall he was able to cope with.
The Evidence of Dianne Bell
19 Ms Dianne Bell, the plaintiff’s wife, gave evidence in the course of which she said that:
•
Whilst before the fall the plaintiff had problems with his elbow, the condition was such that it did not stop him from doing much at all. She agreed that before the plaintiff had consulted Mr James for the first time he was having some problems with his elbow at work; that following the fall he did not take much time off work; and that he managed to continue working until his contract came to an end.
•
The plaintiff had more time away from work after the fall than before the fall and that with respect to these absences he had been told to fill out timesheets as if he had been at work and that he would be paid.
•
The plaintiff had told her that he believed his wrist problem[7] had come on probably from pruning vines; that on 9 April 2002 when he came home from the TAFE, the plaintiff told her that he had fallen off a ladder; and that it was obvious that he was in pain on his left side. She said she specifically asked the plaintiff what he had hurt and he responded that he had hurt his back and his elbow and knee.
•
Prior to the fall the plaintiff had not required medication to control the symptoms in his elbow for any significant period of time and that he experienced soreness in his elbow from time to time for periods of relatively short duration. She said that following the fall the plaintiff’s elbow got worse, that he had more soreness, and he was not able to do quite as much with his arm.
[7] the plaintiff’s carpal tunnel syndrome
20 I was impressed with the evidence of Ms Bell. She was careful to confine her evidence to matters about which she was confident in her memory. I did not form the view that she was anything other than a witness of truth nor was the contrary suggested by the defendants. The credibility of Ms Bell as a witness was, in my view, enhanced by the measured way in which she gave her evidence.[8] For these reasons I accept the evidence given by Ms Bell which provides considerable support for the plaintiff’s case.
[8] See, for example, the evidence at T 62 L 25 to T63 L31 and T 72 L 29.
Additional Affidavit Evidence
21 The plaintiff relies upon an affidavit of Alfred Godden dated 1 March 2010, the content of which is not in dispute. Mr Godden deposes that on 9 April 2002, he was rung by the plaintiff, who asked him to assist him to lift a ladder onto the roof rack of his vehicle. In the course of undertaking that process, Mr Godden said that the plaintiff mentioned something about either falling from a ladder or a ladder falling on him. Mr Godden said the plaintiff told him that he had no strength in his left arm and that he was holding his left arm with his right hand. Mr Godden said that that evening he was invited to dinner with the plaintiff, who continued to complain of pain in his left arm.
The Evidence of Mr James
22 In the course his evidence, Mr Dugal James, the plaintiff’s treating orthopaedic surgeon, described observing a difference between the plaintiff’s presentation to him on 14 January 2002 and 5 July 2002. On the latter date Mr James observed a significant decrease in the pronation and supranation which was present in the plaintiff’s elbow.[9]
[9] Both are reduced by 20 degrees when compared with the previous examination which represented, in the opinion of Mr James, a deterioration in function of some significance.
23 If the plaintiff’s evidence is accepted as to the trauma involved in the fall, this evidence of Mr James[10] clearly supports the likelihood of a relationship between and the objective findings made by Mr James of a deterioration in the function of the plaintiff’s elbow some twelve weeks after the fall and that trauma.
[10] T 90-31 to T 92-23
24 Mr James opined further when it was put to him that the plaintiff hit his arm in the course of the fall and was thereafter immediately aware of pain in his left elbow:
“Hitting his arm with the force of his body falling from what sounds to have been a metre or metre-and-a-half would have been a significant force, and in an unanticipated way, so it’s quite consistent that he would have injured his elbow regardless of whether or not he had pre-existing damage to it,[11]
[11] T 96-16
25 Finally, Mr James agreed that, on the basis of an acceptance of the fact that the plaintiff’s symptoms increased substantially following the fall, that it was probable that the trauma of the fall had contributed to the deterioration in the plaintiff’s condition.[12]
[12] T 97-3
Did the Plaintiff Suffer an Aggravation to his Elbow Condition in the Fall?
26 It is put on behalf of the defendants that the contemporaneous behaviour of the plaintiff was such as to indicate that the plaintiff did not suffer any injury, or alternatively, an injury of any consequence, in the fall. In this respect the defendants rely upon:
(i)
the fact that there is no record of the plaintiff missing substantial time from work following the fall;
(ii)
the fact that the plaintiff did not report to either Dr Shaw or Mr James that the fall had aggravated the condition in his elbow;
(iii)
the fact that the plaintiff sought WorkCover Certificates from Mr James and Dr Shaw in respect of his carpal tunnel condition but that at the time at which those certificates were sought, the plaintiff told neither Mr James nor Mr Shaw that he was suffering from the symptoms of a work- related injury to his left elbow. Further, that the plaintiff accepted from Mr James a Centrelink Certificate with respect to his left elbow disability.
27 It was further submitted:
[13] It was put that by this date the plaintiff had already submitted a Worker’s Compensation Claim Form which described the fact that he had suffered an injury to his left elbow in the course of the fall.
(i) that the plaintiff was selective in the evidence which he gave and was quick when it suited him to supplement answers which were not the subject of the question but which would assist his case; (ii) that the submission by the plaintiff of a medical certificate on 22 August 2002, which referred to his injury as involving a bruised loin, was consistent with the plaintiff having recovered from any problem which he might have experienced in his left elbow as the result of the fall, particularly having regard to the fact that at the time at which this certificate was generated the plaintiff had no reason to hide the consequences of the injury to his left elbow.[13] (iii) further, that the plaintiff’s ability to continue in his normal work, notwithstanding the manual nature of his duties, suggested that the plaintiff had not suffered an injury to his elbow or had suffered an injury of no consequences, in the course of the fall. 28 The matters relied upon by the defendants, squarely raise issues both as to the plaintiff’s credit and his reliability as a witness.
Findings as to the Plaintiff’s Credit and Reliability as a Witness
29 Whilst it was submitted on behalf of the defendants that the plaintiff was selective in his evidence and that he avoided answering questions which might prove difficult for him, this was not my impression of the plaintiff. I am of the opinion rather that he presented as a man of limited intelligence whose memory was poor but was not selective.
30 I formed a favourable impression of the plaintiff which is influenced, as a starting point, by the fact that I am satisfied that at the time at which the plaintiff commenced his employment with the Shire he was suffering from a degenerative condition in his left elbow of some significance; and that notwithstanding the presence of that condition he applied for a position which involved unrestricted manual duties which he continued to perform throughout the course of his employment with the Shire. Having regard to the plaintiff’s age[14] at the time at which he commenced his employment with the Shire, I am satisfied that the plaintiff’s attitude to his employment and the disability which he suffered in his left elbow, was one in which he prioritised the finding of a job which gave him secure employment above any physical discomfort to which such employment might expose him. This attitude, in my opinion, speaks favourably as to the plaintiff’s motivation and credit.
[14] The plaintiff commenced his employment with the Shire shortly before his fifty-second birthday.
31 The evidence satisfies me that throughout the period of his employment with the Shire between February 2001 and June 2002, the plaintiff was engaged on a short-term contract and that his long-term employment was not secure.[15] I accept the plaintiff’s evidence that in these circumstances he considered that his best chance of securing a permanent position with the Shire lay in withholding from the Shire the disability from which he suffered in his left elbow.
[15] See the first defendant’s letter of 5 February 2001 which describes the plaintiff’s position as a Parks and Gardens maintenance employee as being temporary - Exhibit B; the letter from the first defendant to the plaintiff of 30 January 2002 advising the plaintiff that his employment would be terminated on 15 February 2003 - Exhibit C; the letter from the first defendant to the plaintiff of 26 February 2002 advising the plaintiff that he was to be engaged in a full-time temporary position as a building maintenance employee - Exhibit D.
32 That the plaintiff withheld the existence of his pre-existing condition from the Shire when he commenced his employment (and to some extent the degree to which the plaintiff was prepared to go to do so), is reflected by the fact that the plaintiff, before commencing his employment, passed a medical check certifying that his duties were appropriate to his current level of health.[16] This certificate was granted notwithstanding that the plaintiff’s duties involved physical labour and that his treating orthopaedic surgeon was opining that he should undergo surgery to remove the foreign bodies present in his elbow so as to hopefully improve the range of movement in his elbow.
[16] Exhibit D
33 The fact that the plaintiff hid from the Shire the recommendation previously made by Mr James that he should undergo surgery upon his elbow and the presence of any disability from which he suffered with respect to the condition in his elbow, in my opinion also provides the contextual basis by which the plaintiff’s failure to inform Dr Shaw and Mr James of the exacerbation in his symptoms following the fall, should be considered. In this regard I am satisfied that the plaintiff’s behaviour in withholding from his doctors the fact that he had exacerbated the condition in his elbow by reason of the happening of the fall, was consistent with the attitude which the plaintiff had adopted in withholding from the Shire the existence of any problem in the function of his left arm.
34 When the plaintiff’s attendance upon Dr Shaw on 10 April 2002 (in which he made no complaint of the fall causing an aggravation of symptoms in his elbow) is considered in light of the plaintiff’s decision to withhold the presence of his pre-existing condition from the Shire, and further in light of:
(i)
the fact that the nature of the pre-existing condition present in the plaintiff’s left elbow was, in my opinion,[17] such that it was likely to be aggravated by the nature of the fall;
(ii)
the evidence of Mr Godden that shortly after the fall and on the evening prior to the plaintiff’s consultation with Dr Shaw, the plaintiff was complaining that as the result of the fall he was experiencing problems with his left arm[18]
[17] taking into account the evidence given on this issue by Mr James
[18] This evidence is not only unchallenged but also supported by that of Ms Bell.
the explanation for failure of the plaintiff to make a report of injury to Dr. Shaw is in my opinion more consistent with a decision by the plaintiff to hide his injury rather than the absence of any injury.
35 For these reasons I accept the evidence given by the plaintiff that it was by reason of his decision to hide his pre-existing injury from the Shire that he made no mention of the injury to Dr Shaw or Mr James.
36 It is submitted that the filing by the plaintiff of a Worker’s Compensation form on 2 August 2002, in which he reported that he injured his elbow in the fall, and thereafter the provision by the plaintiff of a medical certificate attesting to the fact that he had suffered only a bruised loin in the fall, should be seen as supporting the proposition that at the time at which he submitted his Worker’s Compensation claim, the plaintiff was not suffering from symptoms in the form of an aggravation of the condition in his left elbow.
37 The plaintiff’s letter of 4 September 2002[19] however, makes it clear, that he was, by that time, asserting that he had aggravated his elbow in the course of the fall.
[19] Exhibit E
38 I consider it unlikely, in the short period between the submission by the plaintiff of the medical certificate on 22 August 2002 and the writing of the letter of 4 September 2002, that the plaintiff would have commenced to suffer from symptoms in his elbow which were not previously present or that there would have been any change in the plaintiff’s perception of the significance of that condition upon his ability to work.
39 In these circumstances, I am satisfied that I should accept the submission made by Mr Jordan SC on behalf of the plaintiff, that the explanation for the failure of the medical certificate submitted on 22 August 2002, to refer to the fact that the plaintiff had injured his elbow in the course of the fall, arose by reason of the fact that the certificate was not generated as the result of any examination undertaken by Dr Shaw at that time but rather by reason of the reliance by Dr Shaw upon his medical record as to the plaintiff’s attendance on 10 April 2002 and that the certificate does not speak as to the extent of the symptoms present in the plaintiff’s elbow at the time.
40 The defendants point to the plaintiff’s ability to continue in his normal work without significant absences following the fall. This however ignores:
•
the evidence given by both the plaintiff and Ms Bell, which was not the subject of real challenge, that the plaintiff’s absences form work following the fall were greater those which were recorded.
•
the plaintiff’s evidence, supported by that of Mr John Bowman,[20] that the subject fall involved the plaintiff falling from a position in which he had one foot on a ladder and one foot on a bench whilst he was sanding a wall and that he did not wish to formally report the fall as he did not want the issue to affect his chances of obtaining full-time employment with the Shire;
[20] See the statement of Mr Bowman, which is Exhibit H
accordingly, I do not regard this point as being of any great moment.
Did the Plaintiff Suffer an Aggravation to his Elbow Condition in the Fall?
41 In assessing whether the fall involved an injury which could be regarded at any level as being an aggravation of the plaintiff’s pre-existing symptomatic arthritic condition in his left elbow, I take into account the matters to which I have referred above in the context of the evidence which is not disputed:
(i)
the plaintiff fell over a considerable height from a ladder in the course of his employment with the Shire;
(ii)
that at the time of the fall the plaintiff was suffering from a pre-existing condition of considerable moment in his left elbow which involved the presence of a number of bony fragments and a large ossicle in the elbow which had the effect of limiting the plaintiff’s ability to flex and extend the elbow joint the nature of which condition being such that it was likely to be aggravated by the trauma involved in such a fall;
(iii)
that the plaintiff made a contemporaneous complaint that he had suffered an injury to his elbow in the course of the fall to Mr Godden, who observed the plaintiff to be in pain a short time after the fall and also later that evening;
(iv)
that the plaintiff’s evidence that he continued, from the happening of the fall, to suffer from heightened symptoms and disability in his elbow is corroborated by his wife, whose evidence on this issue I accept.
42 Taking these findings into account and applying those findings to the evidence given by Mr James to which I have earlier referred, I am satisfied on the balance of probabilities, that the plaintiff has established that he did suffer an aggravation to his elbow condition in the fall which occurred on 9 April 2002. and accordingly, that the plaintiff is entitled to a positive answer to the first question.
Did the Aggravation Materially Contribute to the Plaintiff’s Impairment
Consequences to his left Elbow?43 In considering this question I adopt the approach that the question as to whether the fall has materially contributed to the serious injury consequences now suffered by the plaintiff is measured by whether, as a matter of ordinary commonsense and experience, the aggravation was a material cause of the plaintiff’s serious injury incapacity.[21]
[21] Medlin v State Government Insurance Commission (1995) 182 CLR 1
44 In dealing with the issues raised by this question, I adopt the findings I have made in the course providing my answer to Question 1.
45 The evidence given by Mr James[22] in which he accepted the proposition that it was probable that the trauma to which the plaintiff had exposed his elbow in the course of the fall contributed to the deterioration or the worsening of his condition, clearly provides the basis for a finding that the fall was a material contributor to the plaintiff’s present incapacity if the evidence given by the plaintiff as to the effect which the fall has had upon his symptoms is accepted.
[22] at T 96 L 24 to T 97 L 15
46 Accepting, as I do, the evidence given by Ms Bell as to the change in the plaintiff’s symptomology following the fall, and combining that evidence with the opinion expressed by Mr James, I am satisfied, independently of any evidence given by the plaintiff as to the relationship between his symptoms and the fall, that the plaintiff’s case in this regard has been established.
47 When account is taken of the plaintiff’s evidence on this issue which I also accept,[23] there is a substantial body of evidence to establish the relationship between the fall and the serious injury consequences which it is admitted that the plaintiff now suffers and I am satisfied that the plaintiff is entitled to a positive answer to the second question.
[23] See in particular the evidence at T 44 L 29; T 48 L 22; T 49 L 21; T 50 L 4; T 56 L 25 to T 57 L 1; T 58 L7.
48 I am therefore satisfied that the plaintiff has established that he is entitled to a positive answer to both of the questions posed by the parties and accordingly that he is entitled to the leave which is sought
49 I will hear the parties as to the precise form of the order which should be made and also upon the issue of costs.
- - -
0
2
0