Smith and Comcare
[2008] AATA 248
•28 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600252
GENERAL ADMINISTRATIVE DIVISION ) Re CLIFFORD JOHN SMITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Associate Professor J B Morley RFD, MemberDate28 March 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................Signed..............
Deputy President
CATCHWORDS
COMPENSATION – incapacity payments – work accident - fracture of the right medial malleolus – previous injuries - non-compensable cause and a compensable cause for incapacity- question of whether injury remained an effective or operative cause of incapacity as at the date of decision – medical evidence shows that the work injury was no longer the cause of the incapacity – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 – s 124(1A)
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Re Sadek and Commonwealth of Australia (1988) 14 ALD 769
REASONS FOR DECISION
28 March 2008 Deputy President P E Hack SC
Associate Professor J B Morley RFD, MemberIntroduction
1.In 1962 the applicant, Mr Clifford Smith, was seriously injured in a motor vehicle accident. Despite his injuries he returned to work. In July 1974, in the course of his employment, Mr Smith was involved in an accident in which his right medial malleolus (ankle bone) was fractured.
2.Comcare accepted liability to compensate Mr Smith for this latter injury and he received incapacity payments until 1 December 2005. Payments ceased from that date because Comcare determined that any incapacity at that time resulted from a combination of the effects of the 1962 motor vehicle accident and advancing age and not from the 1974 ankle injury.
3.Expressed broadly, the issue we have to decide is whether Mr Smith’s present incapacity is the result of the injury in 1974.
Background
4.The background to the matter was not in dispute. What follows seemed to be common ground. Mr Smith was born in 1946. He left school at the age of 14 and thereafter was employed in labouring jobs. In the 1962 motor vehicle accident Mr Smith suffered severe head and spinal injuries. The nature of the spinal injury, and his recovery from it, was described in this way by the trial judge who heard and determined Mr Smith’s common law claim arising out of the 1974 injury[1]:
“His major problem was a paraplegia, not affecting the arms but affecting his body below the nipple line. He underwent surgery on 9 November 1962 when laminectomy for decompression was done by the removal of the 4th and 5th thoracic spine and laminae. The plaintiff progressed very well and on 3 December 1962 recovery of power commenced and proceeded to a very good recovery in the right leg leaving the left leg, however, weak in the muscle stabilising the hip and also in the foot. The plaintiff was discharged from St. Vincent’s Hospital on 24 March 1963 walking with crutches. From March until May of 1965 he was at home convalescing. He then went to the Mt. Wilga Rehabilitation Centre but before doing so obtained his driver’s licence in April 1963. Most of the therapy at Mt. Wilga was directed at the rehabilitation of his left leg. He had some spasticity problems with it. At Mt. Wilga he discarded his crutches and was walking but with a limp. By May of 1963 he was able to walk considerable distances with a limp.”
[1] Smith v The Commonwealth, A.C.T. Supreme Court S.C. 655 of 1979, 9 February 1982.
5.Within about 18 months of this accident Mr Smith had returned to employment, initially in an essentially clerical position and thereafter in labouring jobs that required agility and stamina. Eventually he commenced work, again as a labourer, with what was then the ACT Department of Works. The work was quite strenuous and involved considerable walking and climbing along with bending and lifting. He had no difficulty in coping with the physical demands of that work. His supervisor from that time, Mr Dennis Pearce, said of Mr Smith that he was,
“as good as, if not better than, any other worker there.”
6.The work accident of July 1974 occurred when Mr Smith slipped on a wooden block used as a step and fell, trapping his right foot between the block and a steel pipe. Mr Smith sought medical attention and was diagnosed, wrongly as it turned out, with a sprain. After a short period off work he returned, albeit with some difficulty. It was not until May 1976 that radiological investigation revealed that he had a fracture of the right medial malleolus.
7.Mr Smith had increasing difficulty in meeting the physical demands of his employment and was paid compensation for numerous absences from work. In May 1977 he had a further fall at work which appears to have impaired his ability to work such that in October 1978 his employment was terminated in accordance with his employer’s policy of retiring employees who had been on compensation for a period exceeding 12 months. Mr Smith was in sporadic employment between 1984 and 1989 but has not worked since 1989.
8.At some time during 1979 Mr Smith commenced proceedings against the Commonwealth in the ACT Supreme Court. After a hearing in which the Commonwealth put in issue the respective contribution of the 1962 motor vehicle accident and the 1974 work accident to Mr Smith’s condition at that time, Kelly J gave judgment for Mr Smith in the sum in excess of $300,000. His Honour was,
“satisfied that the basic reason for [Mr Smith’s] disability is the fact that the continuing pain in the right ankle and foot following the 1974 accident operated upon a pre-existing static condition of spasticity so as to lead eventually to the disabilities from which he suffers”.
It is material to the present proceedings to note that his Honour paid particular attention to a neurological diagnosis of autonomic neuropathy/dystrophy of the right foot in reaching that conclusion.
9.Because Mr Smith’s damages included a component for future economic loss his award was “offset” against his entitlement to incapacity payments in accordance with a statutory formula. No issue arises with that aspect of the matter. In about November 1997 Mr Smith again became entitled to receive incapacity payments from Comcare. He received those payments until December 2005. They ceased when, on 16 November 2005, Comcare made the decision in issue in these proceedings. That decision was affirmed on reconsideration on 8 March 2006.
The legislative framework
10.At the time of Mr Smith’s 1974 ankle injury his entitlement to compensation was governed by the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). The 1971 Act was repealed by the Safety, Rehabilitation and Compensation Act 1988 (Cth)[2] (the SRC Act). By virtue of s 124(1A) of the SRC Act, Mr Smith is entitled to compensation under that Act in respect of an injury suffered before its commencement if compensation was or would have been payable to him in respect of that injury under the 1971 Act.
[2]The original short title was Commonwealth Employees’ Rehabilitation and Compensation Act 1988.
11.Compensation for total or partial incapacity was payable under the 1971 Act where an injury “results in” the employee being totally or partially incapacitated for work[3].
[3] Compensation (Commonwealth Employees) Act 1971, ss 45 & 46.
12.Thus the issue we must decide is whether Mr Smith’s 1974 work injury resulted in an incapacity for work in November 2005 (as he submits), or whether, as Comcare submits, any incapacity at that time is attributable to the 1962 motor vehicle accident and to natural degenerative changes.
The proper approach
13.We should deal at the outset with an argument, advanced by Mr Craswell, counsel for Mr Smith, about the proper approach to be taken. It was submitted that in cases such as the present, where there is both a non-compensable cause and a compensable cause for incapacity, it must be shown that the incapacity which would have resulted from the compensible injury has ceased to exist and that the incapacity which does exist has resulted from the non-compensible injury as a sole cause. Reliance was placed upon the decision of Senior Member McMahon in Re Sadek and Commonwealth of Australia[4].
[4] (1988) 14 ALD 769 at 771, [26].
14.As it seems to us, the view of the law that we ought to apply is that expressed by the Full Court of the Federal Court in Ilsley v Wattyl Australia Pty Ltd[5]. That case concerned ACT legislation which provided for entitlement to compensation “where the worker is totally incapacitated for work by the injury”. Their Honours concluded that “there was no operative difference intended for causation purposes between the ‘results from’ formula … and the ‘by’ formula …”. Thereafter their Honours dealt with the question of causation in these terms[6]:
“That the clause raises a question of causation is not open to question: see Kooragang Cement Pty Ltd v Bates at 463-464. It should be taken as “unarguably clear and generally accepted” since at least the Morris v George litigation (that is, Morris v George and Bushby v Morris); that an incapacity can result from more than one injury: see Switzerland Insurance Workers Compensation (NSW) Ltd v Burley (1997) 144 ALR 234 per Mahoney P. It likewise should be taken as clear that the notion of causation imported by the clause does not limit the operative injury (or injuries) “to the immediate proximate cause of incapacity”: Kooragang Cement Pty Ltd v Bates at 463. Whether total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases: see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; a “common sense” evaluation of the causal chain is required – that evaluation being made in light of the statutory formula itself.
The only additional general comments we consider it necessary to make are these. First, where the causal chain reveals multiple and sequential (or cumulative) injuries that are alleged to provide causes for an incapacity, before an earlier such injury can properly be said to be an injury for the purposes of cl 1(b), it must be able to be said that it remained an effective or operative cause of the incapacity. Secondly, as is well recognised, the sustaining of an injury and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously: Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd at 526-527.”
[5] (1997) 75 FCR 1.
[6] (1997) 75 FCR 1 at 6.
15.Thus, we conclude, the question of whether, as at the time of the decision in November 2005, the 1974 work injury resulted in incapacity is to be answered by asking whether it remained an effective or operative cause of incapacity as at that date.
The medical evidence
16.We should start with reference to the evidence of Mr Smith concerning his symptoms in recent years because, in large measure, the reliability of the evidence from medical practitioners is dependent upon the reliability of the history of symptoms given to them.
17.According to Mr Smith he worked at various "odd jobs", following his compensation award but with considerable time off work because of his continuing right ankle complaints. In late 1986 he commenced work, seven hours a day, as a console operator and driveway service attendant at a service station. In February 1988 he moved to the Gold Coast, working for a year in a service station, also for seven hours a day, but did not cope well physically. He said that his right ankle often "gave out" on him, causing frequent falls. He has not worked since 1989. His right ankle has further deteriorated; he can only walk short distances, and has had worsening difficulty with his household chores. He has relied increasingly on his Canadian crutch. He said that he still constantly has right ankle aching, often with a burning sensation; and it still may give way, causing him to fall. Under cross-examination he was taken to several entries in the clinical notes of Dr Martin (Exhibit 8) of his consultations with him from 3 March 1990 to 19 August 2002. Although these included several records of his recurrent falling, these were noted as due to "both legs" giving way, and to "lumbar pain", with no reference to his right ankle pain. He disagreed with the proposition that his right ankle was not the cause of his falls.
18.Dr Peter Martin was Mr Smith’s general practitioner from March 1990 until August 2002. He prepared a report of 23 April 1997 and provided his clinical notes (Exhibit 8), which included copies of investigation results and specialists' reports. He was taken in cross-examination to the entries in his clinical notes of Mr Smith’s various falls which described "both legs" giving way, as a result of his lumbar pain. Although recording pains in his knees, right ankle pain was not mentioned. On his re-examination Dr Martin said that Mr Smith had developed arthritis in his knees and right ankle, as well as his cervical and lumbar spines, for which he was prescribing the anti-inflammatory drug Voltaren. He also had written three medical certificates for Mr Smith between September 2000 to August 2002, stating that Mr Smith was unfit for work because of his right ankle, and, later, his left knee, complaints.
19.In August 1994 Dr Martin referred Mr Smith to neurologist Dr Gamini Jayasinghe who diagnosed a mild lower limb neuropathy, attributed to Mr Smith’s alcohol intake. In October 1999 Dr Martin recorded recent right forefoot numbness from suspected alcohol related neuropathy. In May 2000 he found that his blood sugar level was raised, and commenced treatment for diabetes, including advice to reduce his alcohol intake. In answer to a question from the Tribunal, Dr Martin stated that this neuropathy was not contributing to Mr Smith's falling tendency.
20.Dr Denis Nave, an orthopaedic surgeon, was not called to give evidence, but both parties were content for us to have regard to his report, provided following Mr Smith's consultation with him on 4 September 1998. He recorded that in 1985 Mr Smith had had an incidental injury to his right middle toe and it was amputated; that he had had a surgical division of a nerve in his right foot before that; and he had fractured his left knee in a fall in 1993. He noted complaints of back pain, pain in both knees, and right ankle burning pain, now without swelling and that Mr Smith was taking Voltaren for these complaints. He made no record of any falls. After examining Mr Smith he noted that x-rays of the right ankle of 7 December 1997 had shown a well healed right medial malleolus fracture of the ankle without arthritis. Previous right foot x-rays had shown arthritis in the right middle and great toes, an old fracture of the right second metatarsal bone, and an old surgical osteotomy of his right first metatarsal bone. X-rays in 1986 had shown moderate arthritis in both knees, early right hip arthritis, and lumbar spinal degenerative changes.
21.Dr Nave expressed the opinion that the 1974 injury had caused an undisplaced right medial malleolar fracture which had united without radiological arthritic changes, resulting in "some permanent impairment". He concluded that, on his examination, Mr Smith's right ankle whole person impairment was either 5% or 10%, the latter being if any subtalar joint involvement was excluded.
22.Dr John Morris, an orthopaedic surgeon, provided two reports arising from his examinations of Mr Smith on 10 March 1999 and 9 January 2006. He also gave evidence to the hearing. In his evidence-in-chief, he stated that, in 1999 he found that, although Mr Smith's left leg was particularly weak, the right leg was strong enough to take his weight, but the knee collapsed "on a couple of occasions". At the time of the 2006 examination the right leg was not giving way. The limitations on Mr Smith’s right ankle movements were not severe if he was confined to walking. Dr Morris’ view was that the 1962 injury was causing Mr Smith’s main mobility problems, which had slowly worsened with time. If Mr Smith’s 1974 injury was contributing significantly to his difficulties, his view was that this would be because of the development of osteoarthritis in the ankle, which, in his view, he did not have. He found no signs of an autonomic neuropathy/osteodystrophy of the right ankle.
23.When cross-examined he agreed that Mr Smith's right ankle pain was not attributable to his 1962 spinal injury and that, if one relied on Mr Smith's description, Mr Smith's ankle swelling had only been developing since the 1974 injury. When he was taken to the description of the “ankle swelling” said to have been observed by Mr Pearce he was in no doubt that what Mr Pearce had been describing was attributable to causes unrelated to the ankle injury.
24.He said that in 1999 he would have assessed Mr Smith’s right ankle disability at 5%. In his report of 10 January 2007 he recorded that, after overcoming Mr Smith's right ankle spasticity, he was able to obtain full movements of the ankle and subtalar joints, with no loss of function in the ankle. He said that Mr Smith’s 1974 injury was unlikely to have caused further damage to his spinal cord. When he was taken to the description of the “ankle swelling” said to have been observed by Mr Pearce he was in no doubt that what Mr Pearce had been describing was attributable to causes unrelated to the ankle injury.
25.Dr Warwick Darlow, Mr Smith's current general practitioner, provided a report, his clinical notes, and three medical certificates within the “T Documents”. He gave evidence that he had been seeing Mr Smith since 5 December 2002. In his evidence-in-chief he said that Mr Smith's right ankle complaints would make it very difficult for him to work as he did in 1974. When cross-examined on his clinical notes – showing no reference to Mr Smith’s right ankle pain, or it causing him to fall – he stated that, over this time, he has been concentrating on Mr Smith's diabetes. He also had been treating his "widespread" arthritis with Voltaren, including in his right ankle. On re-examination he stated that, although he had provided Mr Smith's various medical certificates for his right ankle, he had not otherwise been treating this because these problems extended back to 1974, and were beyond his help.
26.Dr George Hession, a recently retired occupational physician, had examined Mr Smith on 8 October 2004, and provided a report dated 21 October 2004. He gave evidence that after obtaining Mr Smith's injury and work histories, he recorded his then current symptoms, as pain throughout both lower limbs, including almost constant right ankle pain aggravated by walking, "giving way" of his right ankle; and that his knees would "ache and crunch" when taking his body weight. Mr Smith reported that he was using Voltaren and Panamax for pain relief, as well as other medications, including for diabetes.
27.Dr Hession noted both of Mr Smith's legs showed signs of his spastic paraplegia. Mobility of both ankles and both subtalar joints were restricted by his spasticity, more predominantly in the left, with no swelling or discoloration of the right ankle. He had no signs of an autonomic dystrophy/osteodystrophy in that ankle. On cross examination, he considered it to be "unrealistic" that the pain from his fractured right ankle should persist to that time if a fracture had healed, unless he had developed secondary osteoarthritis in the ankle; he conceded that the ankle fracture could have accelerated the progress of such an osteoarthritis. However there was no x-ray evidence of osteoarthritis. He agreed that Mr Smith's right ankle pain was not due to his spinal injury. In answer to a question from the Tribunal he regarded it unlikely that his spinal injury had been aggravated by his fall in his 1974 accident.
28.In his report he stated that Mr Smith's current condition was not related to his 1974 injury, but principally to his motor vehicle accident spinal injuries, and, to some extent, to their "underlying degeneration as part of the natural ageing process".
29.Dr John Cameron, a consultant neurologist, compiled a report dated 24 October 2006 and gave evidence at the hearing. In his report of his consultation with Mr Smith on 6 October 2006 and after summarising his injuries' histories, Dr Cameron recorded his examination findings of mild left leg weakness with muscle wasting, spasticity of both legs, with accompanying neurological motor signs and preserved sensation.
30.In his examination-in-chief, he stated his opinion that Mr Smith's right ankle pain since his 1974 accident was most likely, at least in part, due to his right medial malleolar fracture, acknowledging that some present symptoms also were from his 1962 spinal injury. However the ankle swelling was caused by the 1974 injury, and not by the spinal injury. He had noted that, before that 1974 injury, the right ankle had caused no problems. He also opined that the right ankle complaints still significantly affected Mr Smith’s labouring work capabilities. He affirmed the opinion in his report that Mr Smith's right ankle impairment was 10% of his whole person function, relating specifically to his 1974 injury; and that his spinal injury was causing him 30% whole person impairment.
31.When cross-examined, he said that although the "major reason" for Mr Smith's ongoing lower limbs' instability was the effect of his 1962 spinal injury, a component, albeit "quite small", was due to the right ankle and foot complaints. From his examination findings, he accepted that Mr Smith was now totally incapacitated for work because of the spinal injury. In his report he estimated that about 80% of his physical impairment was from his spinal injury and 20% from "the various injuries and procedures" to his right foot; he assessed the 1974 injury component of his right foot incapacity at "around 10%". The spinal injury incapacity appeared to have gradually deteriorated with time; he did not consider that his 1974 injury, in falling on to his back, had contributed to this deterioration.
32.Examining Mr Smith's ankle, he found its movements restricted; but the spinal injury would not have caused ankle pain, swelling, and tendency to give way. He said that, with a hemiplegia, such as from a stroke, there is no tendency for the ankle on the healthy side to swell. He added that right ankle pain following the 1974 injury could have been accentuated by Mr Smith having to customarily favour his left leg, previously more weakened by the spinal injury. He acknowledged that his observations assumed that the history that Mr Smith had provided to him was accurate and reliable. He was taken to Dr Martin's clinical notes, and references therein to both legs giving way, relating to pain in his lower back; and absence of record supporting Mr Smith's contention that the pain in his right ankle commonly caused such falls. Dr Cameron agreed that the spasticity from his spinal injury could have explained both of his legs giving way. He was taken to evidence from Dr Morris and Dr Hession, who found no signs of right ankle pathology, such as arthritis, including pain, swelling, or giving way tendency. He was asked by the Tribunal what it should make of no reference in such clinical notes to his right ankle pain, swelling, or giving way. He replied that frequently a general practitioner will be reviewing a patient for a currently active complaint, such as, in Mr Smith's case, his diabetes; and other long-standing conditions which are not causing the patient concern need not attract the doctor's attention.
33.He affirmed that he found no clinical evidence now present for an alcohol induced peripheral neuropathy, or a sympathetic dystrophy/osteodystrophy, in Mr Smith's right foot.
Assessing the medical evidence
34.There is no dispute that Mr Smith suffered a fracture to the medial malleolus of his right ankle in his 1974 accident. Additionally, the medical witnesses have agreed that Mr Smith no longer has the "autonomic dystrophy" or "sympathetic osteodystrophy" which Mr Justice Kelly found to be present in February 1982. Furthermore, Dr Cameron found no clinical evidence of Mr Smith's previously diagnosed alcohol induced peripheral neuropathy. Thus we conclude that these conditions are no longer present in Mr Smith's right ankle.
35.Only Drs Hession and Cameron offered any opinion on the status of Mr Smith's paraplegia from his spinal injury, agreeing that the effect of this has slowly worsened with time. They, and Dr Morris, agreed that this had not been aggravated as the result of his fall on his back in his 1974 injury. There was no contrary medical opinion to these views.
36.The conflicting medical opinions concern the question of whether Mr Smith has any current permanent impairment in his right ankle from his 1974 malleolar fracture. His general practitioners, Drs Martin and Darlow, and Drs Nave and Cameron, support this view; Drs Morris and Hession do not. We need to consider each doctor's observations in turn.
37.Dr Martin’s records pertaining to Mr Smith's right ankle and leg show as follows:
·October 1996: "burning paraesthesiae right lower leg".
·April 1997: He reviewed Mr Smith's right ankle history for the purposes of a report to his solicitor, summarising his more recent history: "subsequently more falls leading to deterioration of the knees (especially right knee)".
·May 2001: He recorded "pain (in his) lumbar spine, right knee and ankle".
·July 2001: "To wear RM boots to help with weak ankles giving way".
There is no record or report of Mr Smith's right ankle being swollen. However he prescribed the anti-arthritic medication Voltaren, more often after May 2001, for his knees', right ankle, and his cervical and lumbar spinal arthritis. As well Dr Martin provided three continuing medical certificates that Mr Smith was "totally and permanently incapacitated for work" due to his right ankle fracture, and later left knee fracture.
38.It is significant that a medical report prepared in April 1997 for Mr Smith’s solicitors makes no reference to ankle pain or swelling.
39.Dr Darlow's notes contain no record of Mr Smith's right ankle being swollen, painful, or giving way. However he has frequently prescribed Voltaren for widespread arthritis, including in the right ankle; and he also has provided three continuing medical certificates for persisting right ankle impairment over the period August 2003 to September 2005.
40.Dr Nave noted Mr Smith's complaints of back pain, pain in both knees, and right ankle burning pain, now without swelling. Mr Smith was taking Voltaren for these pains. Dr Nave made no record of him often falling. On examination Dr Nave found the right ankle to be tender anteriorly, without swelling, with "about fifty per cent or so of ankle movement"; the ankle appeared to have been neither swollen nor discoloured.
41.Dr Cameron recorded Mr Smith's history of constant right ankle aching, and stabbing pain, with burning discomfort in the foot, the ankle tending to suddenly "give out" when he walked. On examination he found his right ankle movements to be restricted. He made no record of the ankle being swollen. He acknowledged that his opinion assumed Mr Smith's history to be accurate and reliable.
42.In the seven year interval between his two examinations of Mr Smith, Dr Morris found that his right ankle movement had actually improved. On neither occasion did he find the ankle to be swollen, and he remarked on the absence of x-ray changes of right ankle arthritis.
43.Dr Hession found no swelling or deformity in the region of the right ankle's medial malleolus. He noted signs of generalised degenerative osteoarthritis in his fingers. He saw no evidence of exaggeration of his symptoms. Like Dr Morris he noted no x-ray changes of right ankle arthritis.
44.In summary, it is of significance that none of the doctors found any objective evidence of Mr Smith's ankle complaints, or explanation for them. In this respect we note the qualification expressed by Dr Cameron to his conclusions, which he said depended upon the accuracy and reliability of Mr Smith's history. We have no reason to doubt the genuineness of Mr Smith’s evidence however we are concerned with its reliability. There are no objective clinical features of the matters of which he complains in circumstances where the evidence suggests that clinical features ought be present. Neither is there any contemporaneous record of the matters of which Mr Smith complains, again in circumstances where one would expect to find such a record. The report prepared by Dr Martin for Mr Smith’s then solicitors provides the best example of that but there are other examples which we have identified above in our discussion of the evidence.
45.We are lead to the view that Mr Smith cannot be regarded as a reliable historian and that on this basis the medical evidence leads inevitably to the conclusion that, as at November 2005, the 1974 work injury was no longer the cause of Mr Smith’s incapacity.
46.It follows that we would affirm the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member
Signed: .......................Signed..............................................
Jacqueline Woods, Associate
Dates of Hearing 3 March 2008 - 4 March 2008
Date of Decision 28 March 2008
Counsel for the Applicant Mr M Craswell
Solicitors for the Applicant Slater and Gordon
Counsel for the Respondent Mr C Clark
Solicitors for the Respondent DLA Phillips Fox
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