Mulligan Pty Ltd (Acn 000 135 222) v Loiterton [2001] ACTSC 26 (29 March 2001)

Last Updated: 14 May 2002

P D MULLIGAN PTY LIMITED (ACN 000 135 222) v BRIAN LOITERTON [2001] ACTSC 26 (29 March 2001)

CATCHWORDS

NEGLIGENCE - employee injured during assault by fellow employee - assailant not previously violent but violence generally prevalent in the workplace - whether employer breached duty of care to employee by failing to take measures to deter or control violence - relevant considerations - absence of specific findings as to measures that could have been taken, and magnitude of the risk and other factors such as expense, difficulty and inconvenience of taking alleviating action - whether reasons adequate - re-hearing ordered.

Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348

Antoniak v The Commonwealth (1962) 4 FLR 454

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Public Transport Corporation v Sartori [1996] VICSC 33; [1997] 1 VR 168

Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070

Jacobsen v Nike Canada Ltd (1996) 133 DLR (4^th) 377

Petrou v Hatzigeorgiou (1991) Aust Torts R 81-071

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Pettitt v Dunkley [1971] 1 NSWLR 376

Donges v Ratcliffe [1975] 1 NSWLR 501

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563

Dessent v Commonwealth (1977) 51 ALJR

Kelly v Fay [1982] 1 NSWLR 232

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

No. SCA 28 of 2000

Judges: Higgins, Crispin and Gray JJ

Supreme Court of the ACT

Date: 29 March 2001

IN THE SUPREME COURT OF THE )

) No. SCA 28 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: P D MULLIGAN PTY LIMITED

(ACN 000 135 222)

Appellant

AND: BRIAN LOITERTON

Respondent

ORDER

Judges: Higgins, Crispin and Gray JJ

Date: 29 March 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and the orders of the Master set aside.

2. The matter be remitted to the Master for re-hearing.

1. This is an appeal against a decision of the Master ordering the appellant to pay the respondent damages for injuries sustained in January 1994 when he was assaulted by Mr Graham McMinn.

2. The appellant had operated the Canberra Abattoirs for some years and at the time of the assault employed both the respondent and Mr McMinn in that business. The respondent claimed that in January 1994 he and Mr McMinn had both been working on what was described as the "mutton chain" when Mr McMinn abused him and told him that he was not doing his job correctly. The respondent said that he had disputed this claim and that Mr McMinn had then approached him and punched him in the eye. The blow had knocked him unconscious. He said that when he had regained consciousness he had found he was lying on the floor in blood from recently slaughtered sheep. He had subsequently been taken into the office by Mr Williams, the production manager, admonished and sent back to work.

3. The respondent also said that there had been two further incidents involving Mr McMinn. The first had occurred a few days later at a Canberra nightclub when Mr McMinn threatened him. The second had occurred about 1 February 1994 as he was walking towards the car park at the abattoir. On that occasion Mr McMinn had again threatened him and then taken "several swings" at him. The respondent had had his bag over his shoulder and as he put it down Mr McMinn had hit him again. He had then retaliated.

4. This fight had apparently been reported to the appellant and the next morning both the respondent and Mr McMinn had been dismissed but told they could reapply for any vacant job after a period of three months.

5. The Master found that the first incident upon which the respondent's claim had been based had occurred as described in his evidence. He observed that "an employer is not necessarily liable for a single incident of violence at the workplace". However, it had been argued by the respondents that, whilst there had been no evidence of any prior violence by Mr McMinn, the appellant had breached its duty to provide a safe place of work for the respondent by failing to take action to prevent prevalent acts of violence in the workplace.

6. Counsel for the respondent had acknowledged that the claim was an unusual one and had been unable to point to any authority directly in point. The Master referred to Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348, in which Streatfield J held that an employer was liable for injuries caused to an employee by the actions of a fellow employee known to have engaged in repeated acts of horseplay and Antoniak v The Commonwealth (1962) 4 FLR 454, in which Dunphy J said that it was a matter of degree and, save in exceptional circumstances, an employer would not be liable for failing to dismiss an employee after a single potentially dangerous act. The Master observed, however, that the case for the respondent had not been put on the basis of a duty to have dismissed Mr McMinn but rather on the basis of a duty to have put in place a system to discourage and prevent violence in the workplace, "given a knowledge by management of regular acts of violence within the workforce generally". He expressed the view that the matter could be resolved by reference to general principles concerning an employer's duty to provide a safe place of work and a safe system of work.

7. The Master then cited various passages from the High Court's judgment in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 concerning an employer's duty of care at common law and observed that it was consistent with these principles to conclude that an employer who is aware of regular violence in the workplace is under a duty to take steps to prevent it. He referred to other cases in which employers had been held liable for failing to protect employees from foreseeable risks, viz Public Transport Corporation v Sartori [1996] VICSC 33; [1997] 1 VR 168; Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070; and Jacobsen v Nike Canada Ltd (1996) 133 DLR (4^th) 377. He said that modern employers are expected to be vigilant in educating and training their workforce on matters of occupational health and safety as well as issues of sexual harassment in the workplace. He also mentioned that there was ample authority for the proposition that an employer who tolerates horseplay will be liable for the consequences and cited as an example the decision of the NSW Court of Appeal in Petrou v Hatzigeorgiou (1991) Aust Torts R 81-071.

8. The Master accepted that the appellant had been guilty of a breach of its duty of care to the respondent and was liable for the foreseeable consequences of the assaults on the "killing floor" and in the car park.

9. He found that as a result of the first assault the respondent had suffered an injury to his lower back as he fell and struck his back on a concrete block. He also found that the first assault had caused the onset of a post-traumatic stress disorder which lasted until July 1997 and that the plaintiff continued to suffer from a depressive illness. He found, however, that the other assault and a subsequent motor vehicle accident had contributed to the post traumatic stress disorder and that the plaintiff's depressive illness was only partly attributable to the conduct of the appellant. He awarded damages in the sum of $108,126.

10. The decision was attacked on a number of bases.

11. First, it was argued that the evidence did not support any finding that there had been a "pattern of violence" or "level of regular violence" that called for intervention by the appellant.

12. The Master addressed this issue in the following passage:

What has been alleged here is that the Canberra Abattoir was an inherently violent workplace, and that incidents of assaults and fights were commonplace. This version was supported by the evidence of the plaintiff, his brother Mr Ian Loiterton, and co-workers Mr Gill and Mr Jackson, who said that he was himself involved in an incident in 1993. The picture painted by these witnesses was of a workplace where violence was not uncommon, and where no adequate systems were in place to reduce or prevent it. They agreed that dismissal was an accepted sanction for fighting and that they were aware of this happening in some cases.

13. It may be noted that the passage quoted does not contain any explicit statement that the Master accepted the evidence of the respondent and the other witnesses referred to though, equally, there is also nothing to indicate that he rejected it. Nor is there any statement elsewhere in the judgment that clarifies this issue.

14. The Master also referred to the evidence of three witnesses for the appellant, Messrs Williams, Carr and Brown, each of whom had claimed that the workplace had not been violent. They had denied any knowledge of a number of alleged instances referred to by the respondent's witnesses although they acknowledged that there had been one incident which had resulted in dismissal and another in which a man had hit a woman. The latter incident had been regarded as reflecting a domestic rather than a workplace dispute and the man had not been dismissed.

15. Mr Williams, who had been the production manager of the abattoirs, also said that he had been aware of one incident in the locker room but said that, "when they saw me coming they locked me out". He was cross-examined about statements made in the three photocopied pages of his work diary that had been produced on discovery apparently because of their reference to the intended dismissal of the respondent and Mr McMinn on 1 February 1994. The Master noted, however, that the entry for 2 February 1994 referred to warning two other employees, Mr Gill and Mr Whiting, about a verbal argument and that the entry for 3 February 1994 referred to a report that another employee, Mr Tuilawa, had punched Mr Gill. The latter incident had not been referred to by Mr Williams in his evidence-in-chief. When it was put to him that it was a fight of which he had been aware he replied that he had not seen it and had been told only by another "slaughter person" and not by any foreman.

16. The Master extrapolated a passage from the evidence given by Mr Carr, who had been a foreman at the abattoirs. Since this was the subject of some argument on appeal it is appropriate to set out the passage in full and in its context:

Did you ever - appreciating you say you didn't see any fights, did you hear of fights from other workers there, that had occurred? - - - You probably might hear of it three or four days down the line, second hand or something, and you wouldn't take any notice of it because - - -

Is that a long way of saying "yes", you did hear of fights through other workers? - - - Well you wouldn't take any notice of it.

Well, don't worry about whether you took any notice? - - - No.

Did you get reports of fights occurring in the premises? - - - No.

But you just told us that you would hear of some a couple of days later on, but you wouldn't pay any attention to it. Did you hear of - do you want to consider your answer again? Did you hear of any fights in the workplace? - - - No. I will say no.

No. Well, what were you referring to a moment ago when you said you would hear of some but you wouldn't pay any attention to them?  - - - Well if you heard a bit of an argument or something like that, you wouldn't take any notice of that because it's just a daily thing. You can get that anywhere.

(The extrapolated passage is underlined).

17. Mr Murr SC, who appeared for the appellant with Mr Mossop, submitted that, considered as a whole, this passage amounted to a clear refutation of any suggestion that Mr Carr had heard of any fights at the abattoir during the time that he had worked there. This had been confirmed by his subsequent agreement with the proposition that during the six years he had been a foreman he had heard of no fights and had seen no fights. It would clearly have been open to the Master to have accepted that that was the overall effect of the evidence. On the other hand, we think it would equally have been open to him to have concluded that the first of the two answers quoted involved implicit admissions of hearing reports of fights and that the subsequent answers were given in a disingenuous attempt to resile from the truth of what had already been admitted and to avoid any criticism for his failure to act on reports which he dismissed as "a daily thing". Had the Master taken the latter view of the evidence, it would have provided compelling support for the respondent's contentions that violence frequently occurred within the workplace and that the appellant had failed to take adequate steps to curb it. Much may have depended upon the Master's impressions of the demeanour of the witness and the manner in which the evidence was given.

18. Mr Brown, who had been manager of the abattoirs from 1987 until the end of 1994, gave evidence that violence was not generally tolerated and that he had knowledge of only a limited number of violent incidents. The Master found, however, that a passage of evidence which Mr Brown gave in cross-examination went to establish "a level of awareness of a general climate of violence". That passage was as follows:

Did he [Mr Williams] ever mention any other incidents of fighting that he had heard of whilst he was working as a production manager? - - - Not seriously, no.

Well, what about non seriously, did he ever mention incidents of fighting or assaults to you? - - - Well, yes, pushing and shoving, yes, that goes on, yes. Or went on. Going - - -

Pushing and shoving? - - - Going to and from the smoko rooms and things like that, but I mean - - -

Pushing and shoving went on. That was within your knowledge?  - - -Playful, yes.

Playful? - - - Yes.

And you know that the men who worked as slaughtermen wore belts with knives? - - - Not on these occasions, they [were] going to or from their smoko room.

Did it occur to you that pushing and shoving could have led to someone being injured? - - - Yes.

What did you do about it? - - -I guess what I'm saying, you're talking pushing and shoving, I mean there's - it's more playful.

Look, the question I asked you, Mr Brown, was what did you do in response to the danger of pushing and shoving? - - - Well, if it was a report on pushing and shoving seriously, I would act and discipline them or dismiss - one or the other.

How many times over the years you worked there, did you become aware of there being pushing and shoving - leaving aside whether it was serious pushing and shoving? - - -Not that frequently.

Once a month? - - - That would be it, yes.

19. This passage was again amenable to competing arguments. It would have been open to the Master to have concluded that the overall effect of the evidence was to deny that Mr Williams had mentioned any fighting or assaults other than pushing and shoving involving little more than simple playfulness. On the other hand, he would have been entitled to accept the apparent admissions that Mr Williams had mentioned fighting and assaults, albeit of a kind involving pushing and shoving, and dismiss the suggestion that all this had been done playfully. Having regard to the evidence of frequency, such a finding would have been significant.

20. The Master also noted that when asked why, if dismissal was the sanction for fighting, he had not dismissed the respondent and/or Mr McMinn following the incident in January 1994, Mr Brown had explained in essence that it had been one man's word against the other.

21. Following this reference to Mr Brown's evidence, the Master made the following findings:

I take this evidence with Mr Williams reference to the February 3 incident in his diary, which he dismissed as having only been told by another slaughterman, and no foreman seeing it, and Mr Carr's reference to the daily thing of hearing of "arguments or something" to establish an environment where there was a general awareness by management of the potential for violence on the workplace floor and where reports, albeit often second hand, of such violence were not uncommon. Where the fight was admitted, or where a foreman witnessed the incident, it seems that dismissal was a real option, and one that had been exercised by management. But I find that no action was taken of [sic] these lower levels of reports of incidents.

22. It may be noted that these findings are expressly based only upon certain portions of the evidence of the three witnesses who were called by the appellant. There was nothing in this passage to indicate whether or not the Master had accepted the evidence of the plaintiff and the other witnesses who gave evidence on his behalf about violence and reports of violence at the abattoirs prior to the incident in which he was injured. Furthermore, whilst the findings suggest that the views taken by the Master of the relevant passages in the evidence of Messrs Williams, Carr and Brown were adverse to the appellant's case, there were no specific findings as to the nature of those views and little, if any, discussion from which such findings may be deduced.

23. Mr Murr argued that whilst there was evidence of incidents of striking and fighting at the abattoir it could not be said how many there were or how frequently they occurred. They appeared to have been isolated and sporadic and none had occurred on the "slaughter" or "killing" floor. In support of these contentions he provided a schedule of specific incidents referred to in the evidence of various witnesses and argued that even if all such allegations had been accepted, they could not have supported a finding that there had been a "pattern of violence", a "general climate of violence" or "regular violence" in the workplace. He also submitted that whilst management may have received reports of some incidents they would not have been aware of all of them and any finding of negligence was necessarily dependent upon the appellant's knowledge of any perceived danger to employees such as the respondent.

24. However, these arguments seemed to overlook the fact that the respondent's witnesses had given evidence of a general nature concerning the prevalence of violence as well as referring to a number of specific incidents. For example, Mr Gill said in his evidence in chief that "quite a few fights did break out" though, despite the generality of this description, he referred to only a few specific incidents. The specific incidents actually described by the various witnesses were obviously those which they could recall whilst giving evidence but, in the absence of any concession to that effect, there is no reason to assume that any general statements about violence were mere hyperbole or extrapolations from the few incidents mentioned. We are satisfied that there was evidence which, if accepted, was capable of supporting the findings which the Master made. The real difficulty lies rather in knowing what evidence was accepted. This issue is addressed later.

25. Secondly, Mr Murr submitted that the Master erred in finding that the appellant had been in breach of any duty of care which it may have had to the respondent to take reasonable steps to prevent violence at the abattoir. He pointed out that there was evidence that the conditions of employment under which people such as the respondent and Mr McMinn worked at the abattoir provided that striking a fellow employee or any other person on company property was misconduct warranting summary dismissal, that the appellant's policy was to dismiss employees summarily for fighting, that such policy was explained to employees at the time they were engaged, that supervisors responded to known incidents and disciplined those involved, and that when a fight was admitted or witnessed by a foreman dismissal was a real option and one that had been exercised by management. He maintained that what had been described as "lower level" reports were hearsay and that there was no evidence to establish that any of them had been of any substance. Furthermore, there had been evidence from both Mr Williams and Mr Brown of such incidents being investigated.

26. However, much of the evidence to which Mr Murr referred was not the subject of any specific finding by the Master and it is by no means clear that he accepted all of the evidence given by each of the witnesses in question. On the contrary, whilst he did accept that that when a fight was admitted or witnessed by a foreman dismissal was a real option and one that had been exercised, he found that no action was taken on the "lower level" reports of incidents. It was open to the Master to find that the danger created by violence in the workplace had not been adequately addressed merely by disciplining those intemperate enough to commit violent acts in the presence of foremen or honest enough to admit the commission of such acts. It was also open to the Master to conclude that the continued prevalence of violence demonstrated that such an approach had been inadequate.

27. Thirdly, Mr Murr submitted that even if one accepted that there had been a history of regular violence in the workplace, there was a significant lacuna in the chain of reasoning necessary to justify any conclusion that the appellant had been guilty of a breach of its duty of care to the plaintiff. As he pointed out, the relevant principles were succinctly stated by the High Court of Australia in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47-8:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

28. In the present case whilst the Master's findings implied that the appellant could and should have done something more to prevent further incidents of violence the judgment did not include any findings as to particular measures which the appellant might have taken to alleviate the risk of injury due to violence or any discussion of the balancing exercise referred to by Mason J in Wyong Shire Council v Shirt, op cit.

29. Mr Parker, who appeared for the respondent, submitted that the appellant could have prevented the assault upon the respondent by the provision of adequate supervision, or consistently applying the sanction of dismissal to violent employees, undertaking a further investigation into incidents which had neither been witnessed by the foreman or been the subject of admissions by the perpetrator or by the provision of education and training. That may well be so. However, the Master's findings do not involve an acceptance of any of these propositions and in some instances there was no evidence which might have supported such findings. For example, there was no evidence as to the nature and extent of supervision on the "slaughter floor" or of any industry standard with which it might have been compared.

30. On the other hand, it cannot be assumed from the mere absence of specific findings that particular issues were resolved in the appellant's favour. On the contrary, the Master's conclusion that the appellant had breached its duty of care to the respondent tends to suggest that the issues may have been resolved adversely to the appellant. The real difficulty lies in knowing what evidence was accepted and what conclusions were drawn from it.

31. Fourthly, Mr Murr submitted that in the absence of any such findings there was no basis for any conclusion that the appellant had breached its duty to the respondent to take reasonable care to avoid exposing him to unnecessary risks of being assaulted. We accept that submission. However, whilst the absence of such specific findings may have the effect of impugning such a conclusion they cannot justify an assumption that the issue should be taken to have been resolved in the appellant's favour. The Master's conclusion that the appellant had breached its duty of care to the respondent may have been based upon a careful consideration of the factors identified in Wyong Shire Council v Shirt, op cit, namely of the magnitude of the risk created by the continuing violence and the degree of probability of its occurrence, the likelihood of alleviating it by measures such as further training or more rigorous investigation of reported incidents and the level of expense, difficulty and inconvenience involved in taking such action. It cannot be said that such a conclusion was not open to him on the evidence. The real problem highlighted by this submission is that, in the absence of specific findings as to these matters, the process of reasoning has not been fully revealed.

32. Fifthly, Mr Murr submitted that, in the absence of any such findings, there was no basis for any conclusion that the adoption of any such measure, as referred to above, might have prevented the first of the assaults upon the respondent. Again, we accept that submission. However, it is again true that the absence of specific findings cannot justify an assumption that the issue should be taken to have been resolved in the appellant's favour. It may well have been open to the Master to have inferred that particular measures would have been likely to have prevented the relevant assault. The real problem again seems to lie in the fact that the process of reasoning has not been fully revealed.

33. Sixthly, Mr Murr submitted that the Master had fallen into error in failing to give adequate reasons for his decision. As we have already mentioned there are a number of areas in which it is unclear what evidence was accepted and/or in which the absence of specific findings makes it difficult to deduce the precise process of reasoning which led to crucial conclusions.

34. It has long been accepted that a court must state the reasons for its decision and identify the factual basis for that decision. Failure to do so when there are real and relevant issues of fact posed for its determination has been held to constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-382, 384 per Asprey JA, 385 per Manning JA, 387 and 388 per Moffitt JA. Furthermore, at least when a doubt exists as to the legal principles applicable or when an appellate court may be left in doubt as to whether the primary court has understood the application of the relevant legal principles to the facts, those legal principles accepted and applied by the court must also be stated: ibid, Donges v Ratcliffe [1975] 1 NSWLR 501 at 508 per Rath J. It has been suggested that the findings of a judicial officer will be deficient unless the process of reasoning which led to them is exposed in the reasons for judgment. Such a principle was first recognised in relation to assessments of damages. See, for example, Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 149-150 per Stephen J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 572 per Gibbs and Stephen JJ; and Dessent v Commonwealth (1977) 51 ALJR 482 at 486-487 per Mason and Aickin JJ. However, it has since been said to be applicable in cases in which the determination of the facts involves a complex process of reasoning and where appealable error can only be discovered by the disclosure of such process: Kelly v Fay [1982] 1 NSWLR 232 at 237-238 per Hunt J. More recently, it has been held that judicial officers are required to state their reasons in sufficient detail to enable unsuccessful parties to understand why they lost: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441 per Meagher JA. Whilst the nature and extent of the reasons that must be provided must vary according to the circumstances of the case, we accept that they must normally extend to findings as to the relevant facts and a sufficient explanation of the process of reasoning to enable the parties to understand why the relevant decision was made and permit an appellate court to determine whether there has been any appealable error. In the absence of such reasons the decision must be set aside.

35. In the present case, as we have mentioned, the judgment does not contain findings as to a number of relevant issues of fact and the reasoning process which led to some crucial conclusions is not revealed with sufficient clarity to enable us to determine whether there has been appealable error. Accordingly, this ground of appeal must be upheld.

36. Mr Murr submitted if the appeal were to be upheld on this ground it would be necessary for the matter to be remitted to the Master for re-hearing. Whilst that course will undoubtedly cause further expense to the parties we have reluctantly concluded that such a course is unavoidable.

37. Before leaving the matter we should, perhaps, observe that apart from the matters raised by Mr Murr there is one other potentially significant conflict in the evidence which is not referred to in the judgment. In the course of cross-examination the respondent said that Mr Williams "stood there and watch this man beat me up and done nothing about it" (sic). Later in the cross-examination when asked why he had not immediately complained to Mr Brown after the first incident he said "Because the foreman, Ernie Williams was there and seen it. He was the production manager and he should have done something about it" (sic). Neither assertion seems to have been challenged in cross-examination. When Mr Williams gave evidence it was put to him that when Mr McMinn punched the respondent in January 1994 he was no more than ten metres away. Mr Williams denied the suggestion.

38. Mr Murr submitted that since the Master had not referred to the plaintiff's assertions he must be taken to have rejected them. On the other hand Mr Parker pointed out that the Master had expressly found that the incident had occurred as described by the respondent and submitted that there was no reason to suppose that he had rejected that part of his account. It is possible that the significance of this evidence was not realised at the time. However the particulars of negligence extend to allegations of a failure to control the actions of Mr McMinn and a failure to take adequate steps to curb, control or stop violence in the workplace. At face value therefore it would appear to have been open to the respondent to have relied upon Mr Williams' failure to intervene in order to protect him from impending violence at the hands of Mr McMinn if in fact he stood by watching as the respondent claimed in his evidence.

39. Since the matter must be remitted to the Master for re-hearing the parties will have adequate opportunity to consider this issue and take any further steps they consider appropriate.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Justices Higgins, Crispin and Gray.

Associate:

Date: 29 March 2001

Counsel for the appellant: Mr D H Murr SC with Mr D J C Mossop

Solicitor for the appellant: Garden and Montgomerie

Counsel for the respondent: Mr G Parker with Mr C M Everson

Solicitor for the respondent: pappas, j - attorney

Date of hearing: 28 November 2000

Date judgment reserved: 28 November 2000

Date of judgment: 29 March 2001