Wilson and Repatriation Commission

[2007] AATA 1274

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/96

VETERANS' APPEALS  DIVISION		)
Re		DAVID JOHN WILSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member
Associate Professor JB Morley RFD, Member

Date1 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – RAAF defence service – Statement of Principles – rotator cuff syndrome – date of clinical onset – divergent medical evidence – decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120

Statement of Principles Instrument No 84 of 1997

Statement of Principles Instrument No 40 of 2006

Repatriation Commission v Gorton (2001) 110 FCR 321
Hillier and Repatriation Commission [2004] AATA 897
Benjamin v Repatriation Commission (2001) 70 ALD 622
Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Lees v Repatriation Commission (2002) 125 FCR 331

REASONS FOR DECISION

1 May 2007	Dr KS Levy RFD, Senior Member Assoc Prof BJ Morley RFD, Member
Introduction

1. The applicant has claimed a service pension as a result of a condition of bi-lateral rotator cuff syndrome which the applicant claims is due to his service in the Royal Australian Air Force (RAAF). The application was rejected by the Repatriation Commission on 13 August 2004. The applicant sought a review of that decision by the Veterans’ Review Board, which also rejected the applicant’s claim on 15 December 2005. The applicant now appeals that decision to this Tribunal under s 29(1) of the Administrative Appeals Tribunal Act 1975. The issue for determination by the Tribunal is whether the applicant satisfies the Statement of Principles (SoP) for rotator cuff syndrome, namely, Instrument No 84 of 1997 or the more recent SoP Instrument No 39 of 2006.  The Tribunal must determine the date of clinical onset of the applicant’s condition.

Background

2.      The applicant served in the RAAF from 11 August 1972 to 10 August 1992.  The period of eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”) is 7 December 1972 to 10 August 1992. 

3.      The applicant was an engine fitter in the RAAF.  He had to perform duties associated with being an aircraft technician (engine fitter), which involved the repair and replacement of components of aircraft engine systems.  He worked in this role from 1973 to approximately mid 1990 at which time he was assigned to a computer project.  He remained in that capacity until his discharge on 10 August 1992. 

Legislation and Legislative Instruments

·Legislation

“Veterans’ Entitlements Act 1986

Sect 70 - Eligibility for pension under this Part

(1)  Where:

…

(b)  a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;

the Commonwealth is, subject to this Act, liable to pay:

…

(d)  in the case of the incapacity of the member--pension by way of compensation to the member;

in accordance with this Act.

…

(5)  For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:

(a)  the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

…”

·     Legislative Instruments

4.      The following legislative instruments (Statement of Principles) issued by the Repatriation Medical Authority (RMA) are potentially relevant in assessing the applicant’s claim as follows:

Statement of Principles No 84 of 1997 – Rotator Cuff Syndrome

“Factors

5.        The factors that must exist before it can be said that, on the balance of probabilities, rotator cuff syndrome or death from rotator cuff syndrome is connected with the circumstances of a person’s relevant service are:

…

(b) performing activities with the hand on the affected side at or above the point of the shoulder (whilst standing or sitting):

(i)for at least two hours each day; and

(ii) for at least 130 days, all within a period of 210 consecutive days; and

(iii) if ceased, the activities ceased within the 30 days immediately before the clinical onset of rotator cuff syndrome; or

…”

Statement of Principles No 40 of 2006 – Rotator Cuff Syndrome

“Factors

6.        The factor that must exist before it can be said that, on the balance of probabilities, rotator cuff syndrome or death from rotator cuff syndrome is connected with the circumstances of a person’s relevant service is:

…

(b) performing repetitive or sustained activities of the affected shoulder when the shoulder on the affected side is abducted or flexed by at least 60 degrees for at least 160 hours within a period of 210 consecutive days, before the clinical onset of rotator cuff syndrome and where the clinical onset of rotator cuff syndrome occurs within the 30 days following the last such activity in that period; or

…”

evidence

5.      The following documents were admitted into evidence:

Exhibit 1 T Documents lodged pursuant to s 37 of the Administrative   Appeals Tribunal Act 1975

Exhibit 2        Statement of the applicant dated 10 February 2006

Exhibit 3        Letter from Dr James Tankey dated 14 December 2006

Exhibit 4        Letter from Dr James Tankey dated 10 May 2006

Exhibit 5        Letter from Dr James Tankey dated 26 July 2006

Exhibit 6        Health Status Assessment dated 12 November 2001

Medical Documentary Evidence

6.      The medical evidence available to the Tribunal consisted of:

• The applicant's Service Medical Documents (enlistment 11 August 1972, discharge 1 November 1996) (T documents folios 1-15).

• A bundle of documents (exhibit 6) which consisted of copies of:
• the applicant's Health Status Assessment performed on 12 November 2001 by Health Services Australia Ltd;
• correspondence from Comcare regarding the applicant's motor vehicle accident 'neck sprain' or 'whiplash' injury when travelling home from work on 26 July 2002.

• The applicant's Medical Impairment Assessment performed by Dr James Tankey on 21 April 2004 (T documents folios 27-31).

·The applicant's Claimant Report of 15 September 2004 (T documents folios 32-33).

• Report from Orthopaedic Surgeon Dr Peter Brazel of 28 September 2005 (T documents folio 37).

• Reports from General Practitioner Dr James Tankey of Ipswich of 2 November 2005 (T documents folio 42), 10 May 2006 (exhibit 4), 26 July 2006 (exhibit 5), and 14 December 2006 (exhibit 3); Dr Tankey also gave telephone evidence to the hearing.

7.      The Tribunal also had available a copy of the applicant's Clinical Progress Notes from the Boonah Medical Centre, for the period from 8 January 2004 to 7 July 2006; this included copies of two letters, one dated 27 February 2004 from General Practitioner Dr Hugh Eviston to Orthopaedic Surgeon Dr Mark Moroney of Ipswich, the other dated 29 August 2005 from General Practitioner Dr Christina Wong to Orthopaedic Surgeon Dr Peter Brazel.

8.      In his first report of 2 November 2005 (T documents folio 42) Dr Tankey stated that he "first saw" the applicant in 2002, to investigate and treat him for "bilateral rotator cuff dysfunction", stating that the applicant noticed his first symptoms of this in the "late 70s". On 10 May 2006 (exhibit 4) he has recorded that he saw the applicant in 1992, when still in the RAAF, and "advised him medically on his shoulder conditions". However in his third report of 26 July 2006 (exhibit 5), he stated that, having reviewed the applicant's medical documents, he was "aware that he consulted me in 1989 for this same condition (rotator cuff dysfunction)", which had commenced in 1980, when he was still in the RAAF, and was seeking "a second opinion". At the hearing he told the Tribunal that this was for both of the applicant's shoulders.

9.      On 14 December 2006 (exhibit 3) Dr Tankey stated that the applicant had been a patient of his "for a considerable time". During his oral evidence he estimated that this went back to about 1980; and recalls seeing him in 1989 for his shoulders.  However, as stated in exhibit 3, and confirmed during his oral evidence, he no longer had the applicant's medical files from that time.  He explained that, after he closed that practice in Ipswich in 1999, he disposed of its records.  He then worked from 2000 to 2004 in the Boonah Hospital as well as part time in the Boonah Medical Centre, where he also remembers seeing the applicant; (the Tribunal notes that the Boonah Medical Centre Progress Notes of the applicant record his consultations for "rotator cuff dysfunction" with Dr Tankey at that Centre on 26 March and 21 April 2004).  However, in cross-examination, he said that he remembered seeing the applicant and members of his family when he was still an RAAF serving member, that the applicant consulted him for his shoulder complaints in about 1989 when still in the RAAF, and that he advised the applicant to obtain a further opinion on these from RAAF doctors.  During his oral evidence, he thought that he first saw the applicant for his shoulders, either in late 1984 or in early 1992; he could not be more certain than this.

10.     The applicant's Service Medical Documents (T documents folios 1-15) have shown no record of him having reported any shoulder complaints.  However he has explained this by saying that, because of the RAAF policy regarding joint complaints, he did not wish to compromise his 20 years service prospects by seeking medical treatment for these.  This is illustrated in these documents (folio 2). 

11.     The Boonah Medical Centre Progress Notes show that, on 8 January 2004, the applicant was seen by Dr Hollins with "bilateral supraspinatus tendonitis" with "no history of trauma", who considered "steroid injection if persists".  On 6 and 27 February 2004 he was reviewed for this by Dr Eviston, who on the latter date wrote to Orthopaedic Surgeon Dr Moroney, referring to the applicant waking with shoulder pain in the previous six weeks.  Dr Tankey saw him again on 26 March, recording that he had received good relief with Dr Moroney's injections into the shoulders of hydrocortisone with local anaesthetic.  However, his complaints apparently worsened again, and nearly 18 months later, on 29 August 2005, Dr Christina Wong wrote to Orthopaedic Surgeon Dr Peter Brazel:

"He is [a]n engine fitter and has bilateral shoulder pains for a few years.  He does not have recall of any direct injury...  His work entails engine service which involves needing to lift his arms above shoulder level for prolonged periods of time.  He has seen Dr Moroney in the past he has benefited from cortisone injection..."

12.     On 28 September Dr Brazel replied (T documents folio 37):

"... Mr Wilson has significant rotator cuff dysfunction.  I believe that from Mr Wilson's history that whilst his symptomatology commenced in enlistment with prolonged lifting and use of his arm for prolonged periods of time above his head..."

Oral Evidence

·     David Wilson

13.     This witness was the applicant and he provided sworn evidence.  He stated that during his service in the RAAF, he worked as an engine fitter for the majority of the time. The applicant said he had experienced problems with his shoulders “off and on” depending on the day or time involved.  He described having to work away from the base periodically e.g. in fixing Hercules aircraft.  He would then return to the base.  He mentioned that, in some postings (e.g. Richmond), he would have to work seven days a week at times, but he believed that an average of four to five hours per day over his service undertaking technical work as an engine fitter was a reasonable estimate.

14.     In oral evidence, the applicant also stated that he had been diagnosed by his GP shortly before 1992 with rotator cuff syndrome.  He was able to isolate the time period when he consulted this doctor as it was about the time his son was born.  He saw Dr Jim Tankey in Ipswich and recalled that it was within 12 to 18 months after arriving back at Amberley.  It was also around the time he was about to commence his new posting on a computer project, Project DECOR, which involved installing desk top computers, printers and bar code readers at the Amberley RAAF Base.  The applicant stated that there was no work involving reaching above his shoulders in this work except when he was installing bar coding equipment, which was only irregularly. 

15.     He described consulting with Dr Tankey in 1992.  He stated Dr Tankey was not his usual GP at that time but he did consult Dr Tankey for normal issues, e.g. if he had a cold.  In cross-examination, he was asked why he would not go to the RAAF Base medical centre for coughs and colds.  The applicant said that they only took his temperature, gave him Panadol and said “see you later”.   He said that it was not very effective.  He explained that he had seen Dr Tankey in 1990 but saw him very few times since then.  He also said he did not go to civilian doctors a great deal.  His purpose in going to Dr Tankey was to get a second opinion.  He said he had raised the matter of shoulder pain with the RAAF medical centre in the early to mid 1980s together with back pain.  He was told that his shoulder pain was related to his back pain. 

16.     In the couple of years prior to discharge, the applicant was under regular medical review because of his weight problem.  There is no record of him raising shoulder pain at any of those reviews.  He was also asked about engaging in weightlifting during the period of the RAAF scrutinising his weight problem, particularly in light of his time for re-enlistment looming closer.  It was suggested that he convert fat content to muscle content and he then did light weights in the gymnasium.  The record shows this clearly had some benefit for him. 

17.     The applicant was also referred to Exhibit 6.  This is a health status assessment report dated 12 November 2001 and completed by the applicant for the purposes of permanent employment in the Australian Public Service.  In item 28, it asked whether he had arm or shoulder pain and he has ticked the response “No”.  The applicant told the respondent’s advocate that he ticked that response because at the time of filling in the form he did not have shoulder or arm pain. 

18.     The applicant stated that Dr Tankey was “one of my GPs at the time of completing the form at Exhibit 6.  He consulted with Dr Tankey after that with the last appointment having been in 2006.  He stated that he consulted Dr Tankey for some but not all of his medical needs for the period 1992 to 2006.  He estimated he saw Dr Tankey once every three or four months. 

·     Dr James Tankey

19.     Dr Tankey took an affirmation and gave telephone evidence.  He stated he was a General Practitioner and had been qualified as a doctor since 1976.  He currently works at Medicross in Ipswich.  He had previously been in practice in either East Street or Wharf Street in Ipswich but then spent a period at the Boonah Hospital from 2000 to 2004 and returned to practice with Medicross in 2004. 

20.     He was referred to Exhibit 5 where he states that the applicant suffers from rotator cuff dysfunction.  That Exhibit also states that the applicant consulted with him in about 1989 and that at the time the applicant was a member of the Defence Force seeking a second opinion.  He thought the condition commenced in late 1970s or the early 1980s.  In cross-examination, Dr Tankey was referred to a further letter on 14 December 2006 (Exhibit 3).  Dr Tankey states in that document that he no longer has Mr Wilson’s medical records from when he consulted with him in 1992.  He recalled seeing Mr Wilson however, because he also looked after his family before he left the RAAF.  He undertook no testing at that time before making the diagnosis.  However, he also stated in evidence that he told the applicant that he should go to the RAAF and have the matter placed on his medical records if he wished to be able to make a later claim to the Department of Veterans’ Affairs.  The Tribunal put to Dr Tankey that if the applicant suffered from this syndrome in the early 1980s he would only have been age 25.  Asked whether he thought that was unusual, Dr Tankey said he did not think it was unusual as rotator cuff syndrome could involve a tear.

Other Evidence

21.     Evidence to support the applicant’s duties in the RAAF were provided by Mr Hutley (folio 43), Mr Trevor Cooper (folio 46), and Mr M Ramsay (his current supervisor in 2004) (folio 47).

Consideration

22.     The Tribunal has considered all of the relevant statutory and case law relevant to the issue for determination.  In addition, the Tribunal has carefully considered all of the oral and documentary evidence presented. 

23.     In terms of causation, counsel for the applicant has submitted that the Tribunal is obliged to apply the later SoP that is, SoP No 40 of 2006 as it repealed the earlier SoP (Instrument No 84 of 1997).  (See decision of the Full Court of the Federal Court Repatriation Commission v Gorton (2001) 110 FCR 321 and Hillier v Repatriation Commission [2004] AATA 897 at 15. However, if the applicant fails to satisfy the latter SoP, then he has an accrued right to have the matter assessed under the SoP current at the time of the decision under review. In both cases, the evidence must satisfy at least one of the factors in one of the relevant SoPs, as specified in the section “legislation and legislative instruments” (above).

24.     In relation to whether the applicant satisfies Factor 6(b) of SoP No 40 of 2006, the Tribunal must be satisfied that the applicant was involved in sustained activities on the affected side at or above the point of the shoulder; that such activity involved arm elevation of at least 60 degrees; and that it persisted for at least 160 hours; and that these elements occurred within a period of 210 consecutive days.  The applicant’s counsel submitted that there is no other limitation on this definition and the applicant could satisfy this by performing for  example, 160 hours by working 10 hours on each of 16 days to satisfy Factor 6(b) under Instrument No 40 of 2006 (or its equivalent under SoP No 84 of 1997).  The Tribunal agrees with that view.

25.     There was also a suggestion that the period of 210 consecutive days refers to “working days”.  The Tribunal has considered that submission and formed the view that it is the logical interpretation to be put on that term.  It is not immediately obvious why the RMA would select 210 consecutive days as being the standard against which to measure applicants with such a condition. It is noted that 210 consecutive days would amount to 30 calendar weeks. That might be a neater standard to adopt. The Tribunal considers that standard probably reflects the number of working days in a calendar year.  Of 365 days in a year, if one takes account of weekends (104 days), public holidays (9 days approximately), recreation leave (28 days) and sick leave (a standard 14 days), it is apparent that there are approximately 210 working days in a year, which is the standard mentioned in the SoP.  The Tribunal believes that it is more likely that it was intended that the 160 hours mentioned in SoP No 40 of 2006 was intended that be over a period of 210 consecutive working days, or, over a working year. 

26.     Looking to the actual requirements of Factor 6(b) of SoP No 40 of 2006 (or Factor 5(b) of SoP No 84 of 1997), the Tribunal accepts that the applicant has worked on an average of 4 to 5 hours per day in his role as an engine fitter for approximately 17 years.  Even working for a minimum of four hours per day for one year (210 working days) would show that the applicant would have worked 840 hours in a working year, which is substantially above the minimum required to satisfy Factor 6(b).  There is no evidence about how much time the applicant would have worked with his arms abducted or flexed by at least 60%, but based on the type of work he has undertaken, and the supporting evidence provided, the Tribunal accepts that it would be reasonable to assume that the applicant would at least satisfy the minimum standard in Factor 6(b). 

Diagnosis

27.     The Tribunal must determine the most appropriate diagnosis, which is consistent with the most credible evidence (see Benjamin v Repatriation Commission (2001) 70 ALD 622. The Tribunal does not make a diagnosis but must determine the most appropriate diagnosis where differential evidence is available.

28.     In this case, Dr Tankey has diagnosed rotator cuff syndrome although he did not undertake any testing or refer the applicant to a specialist.  On the other hand, Dr Peter Brazel, orthopaedic specialist, has concluded that the applicant has rotator cuff syndrome and he concluded this after having ordered ultra sound tests on the applicant.

29.     The Tribunal believes that Dr Brazel’s opinion, being that of a specialist, should be followed particularly where there is no other contrary specialist’s opinion.  Therefore, the Tribunal determines that the applicant suffers from rotator cuff syndrome. 

Date of Clinical Onset

30.     The Tribunal regards this as being the critical issue in determining the strength of the applicant’s claim.  There are some facts which indicate the applicant’s case has some merit.  Equally there are some aspects of evidence which the Tribunal believes offset the facts which weigh in favour of the applicant.

31.     It is clear that the Tribunal has accepted that the applicant suffers from rotator cuff syndrome and that he meets the minimum criteria set by either SoP, without reservation. 

32.     But it is the date of “clinical onset” which is critical to a determination of the issues in this case.  That is when a doctor can exercise professional judgment and conclude a point in time when the disease or injury existed.  [Robertson and Repatriation Commission (1998) 50 ALD 668 at 670; Re Sandiford and Repatriation Commission (1998) 27 AAR 210 at 217; Lees v Repatriation Commission (2002) 125 FCR 331].

33.     The applicant is supported by the diagnosis of Dr Peter Brazel who made his diagnosis only after conducting an ultrasound.  The Tribunal prefers Dr Brazel’s view to that of Dr Tankey (albeit that he has essentially come to the same diagnosis), but Dr Brazel did so using sophisticated analytical techniques, which Dr Tankey did not.  The Tribunal accepts that it would be difficult to place any degree of certainty on a diagnosis such as this without having undertaken any x-ray or ultrasound tests. 

34.     However, Dr Brazel refers to the applicant’s pain commencing when he was employed by the RAAF.  He does not go as far as to say that this condition is attributable to the applicant’s service in the RAAF, he merely states: 

“I believe that from Mr Wilson’s history that…. his symptomatology commenced in enlistment with prolonged lifting and use of his arm for prolonged periods of time above his head.”

35.     Dr Tankey, on the other hand, attributes the condition to Mr Wilson’s service in the RAAF.  His first written report was in November 2005 where he says he first saw the applicant in 2002.  Subsequently, in May 2006 he then says he first saw him in 1992.  In July 2006 he attributes the condition to the applicant’s service in the RAAF.  In December 2006 he provides a further report saying that he has no records available of when he first saw the applicant in 1992.  Dr Tankey’s evidence is therefore inconsistent. 

36.     Other evidence which does not necessarily support the applicant is that he has suggested that a Dr Mark Moroney had first seen him and told him that he had rotator cuff syndrome.  However, there was no written report by Dr Moroney provided, nor was he called to give evidence (see reference on T documents folio 21).

37.     Other issues which raise some concern about either the veracity or efficacy of the applicant’s evidence are:

(a)The applicant initiated his claim in 2004.  This is not fatal to his claim as it may just be that the condition got worse at that time. 

(b)In Exhibit 6, there is a report of the applicant’s health statement which was undertaken on 12 November 2001.  This medical assessment was performed for the purposes of the applicant’s application for permanent status in the Australian Public Service.  It is noted that in section 2 of page 5 of that assessment when asked whether the applicant has or had “arm or shoulder pain”, the applicant ticked “No”.  The applicant’s response in cross-examination to this was that he made a contemporaneous response as he was not at that time feeling any pain. However, on the same list of issues, the applicant had no hesitation in ticking “Yes” to “eyesight problems (including wearing glasses or contact lenses)”; “allergies”; and “any accident or operation”. 

(c)The RAAF medical records of the applicant which were available mostly refer to his weight problems.  However, he did apparently raise the issue of pain in the shoulders in the early to mid 1980s but was told that this pain was related to his back condition.  It is however noted that there was no mention made in any of the medical records submitted that the matter had been raised with the RAAF; there was no evidence of the applicant requiring time off work in that period; and there was no record of any report to the RAAF medical centre about this pain in 20 years of service, not even on discharge.

(d)When the applicant consulted with Dr Tankey in 1992, Dr Tankey said that he should report it to the RAAF so that it would be on his record if he needed to make a claim with the Department in future.  Even this did not prompt the applicant to report the matter, or at least there is no written evidence of it, and the applicant did not indicate any further complaint was made when he gave evidence before the Tribunal. 

(e)When the applicant was undertaking gymnasium work for his weight whilst still serving in the RAAF, he undertook weightlifting.  While this seemed to have had some positive effect on his weight, there was no complaint about it aggravating pain in the shoulders.  The Tribunal notes however, that the weightlifting involved use of only fairly light weights.

38. The Tribunal must weigh these factors and assess them on the balance of probabilities (s120(4) of the Act). In determining the date of clinical onset, it is not sufficient for a person to state that particular symptoms were present at a previous time. A medical practitioner must assess the symptoms described by an applicant and that medical practitioner must be able to say that in his or her view, a particular condition was present at that time, or at an earlier time.

39.     Dr Brazel has not made a commitment as to the date of clinical onset.  Dr Tankey has made such a statement but he has made some inconsistent statements and as the applicant sought out Dr Tankey at a time when he was not his normal GP, there is some concern as to whether the applicant was “doctor shopping”.  There is some concern also on the balance of probabilities as to whether all of Dr Tankey’s evidence can be accepted as being of strong weight, as Dr Tankey, in his own evidence, stated that his opinion was based on accepting the applicant’s version of facts given to him.  No independent testing or assessment was undertaken by Dr Tankey.

40.     In the circumstances, the Tribunal is of the view that the applicant’s evidence is not corroborated by Dr Brazel and that Dr Tankey’s evidence is not credible for the purpose of corroborating the applicant’s claim.  There is a lack of contemporary record of his complaint. The applicant’s evidence is also inconsistent and not sufficiently credible, consistent or specific to satisfy the Tribunal that clinical onset occurred within 30 days of the last such activity in his RAAF service. 

41.     In the circumstances, the Tribunal concludes that the decision under review must be affirmed. 

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member, Assoc Prof JB Morley RFD, Member

Signed:         .....................................................................................
  F. Kamst, Legal Research Officer

Date/s of Hearing  22 February 2007
Date of Decision  1 May 2007
Counsel for the Applicant         Mr A Harding of Counsel
For the Respondent                  Mr B Williams, Departmental Advocate