Adams v Commissioner of Police [2004] NSWCA 39 (27 February 2004)

Last Updated: 8 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Adams v. Commissioner of Police [2004] NSWCA 39 revised - 01/03/2004

FILE NUMBER(S):

40503/03

HEARING DATE(S): 19 February 2004

JUDGMENT DATE: 27/02/2004

PARTIES:

Michael Benjamin Adams - appellant

Commissioner of Police - respondent

JUDGMENT OF: Mason P Hodgson JA Tobias JA

LOWER COURT JURISDICTION: Government and Related Employees Appeal Tribunal

LOWER COURT FILE NUMBER(S): P997/01, P769/01, P458/02

LOWER COURT JUDICIAL OFFICER:

COUNSEL:

Mr. M. McAuley for appellant

Mr. D. Hislop QC with Mr. Spartalis for respondent

SOLICITORS:

Walter Madden Jenkins, Sydney for appellant

NSW Police Service, Court and Legal Services, for respondent

CATCHWORDS:

EVIDENCE - Expert report - Lack of congruence between assumed facts and proved facts - Whether report properly rejected - Whether rejection of evidence by GREAT was a question of law

POLICE

WORKERS' COMPENSATION - Anxiety symptoms - Whether an injury - Whether employment a substantial contributing factor - Whether deficiency of reasons or error of law by GREAT

APPEAL - First instance decision based on two grounds - Whether second ground hypothetical - Whether appeal should be dismissed because no error shown on second ground.

LEGISLATION CITED:

Government and Related Employees Appeal Tribunal Act 1980 ss.43, 54

Police Regulation (Superannuation) Act 1906, s.1(2)

Workers' Compensation Act 1987 ss.4, 9, 9A, 11A

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40503/03

GREAT P977/01

P769/01

P458/02

MASON P

HODGSON JA

TOBIAS JA

Friday 27 February 2004

ADAMS V. COMMISSIONER OF POLICE

Judgment

1 MASON P: I agree with Hodgson JA.

2 HODGSON JA: On 28 May 2003, the Government and Related Employees Appeal Tribunal (the Tribunal) disallowed three appeals brought by the appellant, a police officer, against a decision of the respondent, the Commissioner of Police, to refuse to classify certain periods of absence from work as being caused by the appellant's being "hurt on duty". The appellant appeals to this Court from that decision.

CIRCUMSTANCES

3 The appellant, who was born on 24 September 1954, was appointed a Constable of Police in 1979, and he was promoted to the rank of sergeant in 1990.

4 Due to symptoms associated with anxiety, the appellant had three distinct periods off work: first, from 19 October 1998 to 13 December 1998 (excluding 21 and 22 October 1998); second, from 5 November 1999 to 27 February 2000; and third, from 12 February 2002 to 5 May 2002.

5 There was evidence before the Tribunal that the appellant had been caused stress and anxiety by a complaint made against him in 1993 to the Commissioner of Police by the wife of a colleague, concerning comments of the appellant about the colleague, and by the way that complaint was dealt with; and also by operational and administrative duties he had to perform.

6 However, there was also evidence that the appellant had personal and in particular financial problems such as could have caused anxiety and stress; and medical evidence suggesting that the appellant had personality traits conducive to anxiety and stress.

7 There was before the Tribunal medical and psychological evidence, relating particularly to the first two periods, that the appellant suffered anxiety symptoms, which some experts diagnosed as being due to an anxiety disorder or an adjustment disorder. However, one expert, a consultant psychiatrist Professor Ivor Jones, described the symptoms as "symptoms of anxiety of a moderate degree", as to which he said "the likelihood is that these symptoms have arisen spontaneously as a consequence of his personality".

8 In relation to the third period, the only medical evidence admitted by the Tribunal were medical certificates provided by a general practitioner Dr. Bowden, diagnosing anxiety disorder or anxiety/depression, and asserting that the "injury" was "work-related".

9 In relation to the third period, the appellant also tendered before the Tribunal the report of a psychiatrist, Dr. Pusic, dated 24 March 2003. That report was in the following terms:

Sargent (sic) Adams was referred to me by his local general practitioner Dr Tony Bowden of 134B Great Western Highway, Blaxland. I first saw Sargent (sic) Adams on the 10th May, 2002 and I saw him on two sub-sequential (sic) occasions the last time being on the 20th November, 2002.

You wrote to me on the 10th December, 2002 requesting a medical report and you also enclosed a report by Dr Wendy Walker dated 8th January, 1999. You also sent me a copy of a report by Dr Leonard Lee dated the 30th July, 2001 and a copy of a report by Dr Jones dated 8th November, 1999. I must point out that at the time that I saw Sargent (sic) Adams I did not have copies of those reports and therefore I could not refer to them in my sessions with Sargent (sic) Adams. There is no reference in my notes to a great deal of the subject matter covered by the reports of Dr Wendy Walker, Dr Leonard Lee and Dr Jones. In my interviews with Sargent (sic) Adams the issue of the complaint made against him by another officer's wife was not at all raised.

Sargent (sic) Adams told me that he went off "on sick report" in December, 1997. He told me that he was in charge of the Highway Patrol at Five Dock at the time and he had been overwhelmed by the workload required of him. He described experiencing acute anxiety with tremulousness and lack of concentration. He told me that he would be sitting in front of the computer unable to perform the duties required of him. He told me that he was off work between the 9th December, 1997 and the 23rd January, 1998. He told me that it "happened again" on the 19th October, 1998. Again he suffered generalised anxiety with feelings of apprehension and tremulousness. This episode required him to take some two weeks of (sic) work. He told me that he had a further episode of acute anxiety in late 1999 which required him to take some three months of work He told me that in mid 2001 he was transferred to the Blue Mountains Area were he continued to be a Highway Control Co-ordinator.

In my interviews with Sargent (sic) Adams he does not identify any particular stressors other than the stress of the work required of him as Traffic Co-ordinator.

Sargent (sic) Adams told me that he had another acute episode of anxiety on the 11th February, 2002. He recalled it at approximately 6:00 am he felt tense travelling to work. He told me that he was concerned "about a couple of matters with staff". After half an hour of being at work he felt that he had to "get up and leave the office ". He was on patrol for some two hours and then returned back to the office. In the office he felt acutely anxious and he "broke down on the phone to the Commander". He told me that he was worried about the task that he had to do. He said that a number of people were of (sic) work and he found himself overwhelmed by the workload. He told me that he was taken back home by his Commander. He told me that he returned to work on the 8th April, 2002.

When I did initially see Sargent (sic) Adams on the 14th May, 2002 he told me that he felt "a great deal better". He told me that he was treated with Cipramil 40mg/day by his general practitioner. He told me that at one stage he was also taking the anxiolytic Xanax but he no longer required this to control his anxiety. Sargent (sic) Adams told me that the cause of his difficulties was his tendency to "take more and more tasks on". He realised that he needed to delegate work.

On subsequent interviews with Sargent (sic) Adams he told me that he was coping quite well. He told me that he was working full time at Lawson Police Station. At one stage he was quite busy but managed quite well. There was no further episodes of acute anxiety attacks and if he had not required to take Xanax. When I last saw Sargent (sic) Adams on the 20th November, 2002 it was decided that his dose of Cipramil could be reduced to 20mg/day.

I have not had any further contact with Sargent (sic) Adams since September, 2002 and therefore I cannot make any comment as to his current functioning.

From the information available to me I can say that Sargent (sic) Adams has suffered from episodes of acute anxiety which would qualify for a diagnosis of Panic Disorder (DSMIV). It appears that he suffered such an episode on the 11th February, 2002 associated with excessive workload and pre-occupation with his duties at work. Treatment with an antidepressant and an anxiolytic together with supportive therapy was successful. He has been able to return to his pre-injury duties and as of September, 2002 he was functioning at work without difficulties.

I am afraid I cannot make any other comments related to the issues raised by Dr Lee and Dr Jones. If you require a full medico legal report I will need to re-interview Sargent (sic) Adams to provide the report forthwith.

Please feel free to contact me if I can be of further assistance.

10 The Tribunal ruled that the report was inadmissible on the basis of the case of Makita Pty. Ltd. v. Sprowles (2001) 52 NSWLR 705, and it elaborated on that ruling by asserting that the report was "not based on all the facts", referring to the circumstance that Dr. Pusic said he would have to re-interview the appellant to provide a full medico-legal report. The further comment was made that, even if the document were admitted into evidence, it was "of little weight for the tribunal".

DECISION OF TRIBUNAL

11 The Tribunal identified the issue on which it determined the matter as being whether the appellant suffered an injury, and whether the appellant's employment was a substantial contributing factor to the injury.

12 The Tribunal set out the relevant legislative provisions as follows:

9.1 Section 186 of the Police Act 1990 provides for a right of appeal to the Tribunal against a decision of the Commissioner of Police to grant or refuse leave of absence on full pay to a police officer during any period of absence caused by that officer being "hurt on duty" within the meaning of s.1(2) of the Police Regulation (Superannuation) Act 1906. The definition of "hurt on duty" in s.1(2) of that Act provides as follows:

""hurt on duty", in relation to a member of the police force, means injured in such circumstances as would, if he were a worker within the meaning of the Workers' Compensation Act 1987, entitle him to compensation under that Act; ..."

9.2 Section 9(1) of the Workers' Compensation Act 1987 provides that a worker who has received an injury, whether at or away from his place of employment, shall receive compensation from the worker's employer in accordance with the Act.

9.3 "Injury" is defined in s.4 of the Workers' Compensation Act 1987 as follows:

"In this Act:

Injury:

(a) means personal injury arising out of or in the course of employment;

(b) includes -

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor;

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c) ..."

9.4 Section 9A of the Workers' Compensation Act 1987, which applies only to injuries received after 12 January 1997, relevantly provides:

"(1) No compensation is payable under this Act in respect of any injury unless the employment concerned was a substantial contributing factor to the injury.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of injury,

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,

(e) the worker's state of health before the injury and the existence of any hereditary risks,

(f) the worker's lifestyle and his or her activities outside the workplace.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,

(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

..."

9.5 Section 11A of the Workers Compensation Act 1987 provides:

"11A No compensation for psychological injury caused by reasonable actions of employer

(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include a physiological effect of such a disorder on the nervous system.

(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.

...

(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

..."

13 The Tribunal set out the circumstances and some of the medical evidence. The Tribunal expressed its view on the medical evidence as follows:

13.7 The Tribunal gives little weight to the medical certificates of Dr Lopez and Dr Bowden, both of whom are General Practitioners. The Tribunal also notes that Dr Wendy-Louise Walker is a Clinical and Forensic Psychologist and places more weight upon the medical reports of Professor Jones and Dr Lee, both of whom are Consultant Psychiatrists. In any event, the certificates of Dr Lopez and Dr Bowden are merely descriptive of symptoms and shed little light on the aetiology of the appellant's condition.

14 The Tribunal then reviewed a number of decided cases, and stated its conclusions as follows:

14.1 The Tribunal is of the view that the appellant shows symptoms of anxiety of a moderate degree. This is not a physiological abnormality but a mere emotional reaction or impulse. This type of emotional impulse is the normal reaction of a person to a particular event. If that reaction becomes excessive in degree or duration or is inappropriate to the stimulus, then there may be a physiological problem. Or in other words, the human organism, which is the appellant, has not become dysfunctional.

14.2 On the evidence, the Tribunal finds that the appellant suffered from symptoms of anxiety from October to December 1998, however, he recovered from those symptoms. Again, he suffered symptoms of anxiety from November 1999 until April 2000 but he recovered and he did not suffer the symptoms again until February 2002.

14.3 The Tribunal is satisfied that the appellant suffered from an emotional response of short duration which then subsides and ceases. The Tribunal notes that Professor Jones' report is dated 8 November 1999. The appellant's third period of absence was from 12 February to 6 April 2002. The Tribunal notes that there is no medical evidence from the respondent relating to the appellant's period of absence in 2002 nor is there any medical evidence from the appellant.

14.4 It is Dr Lees' view that the appellant had an adjustment disorder. It is also the view of Dr Walker that the appellant had an anxiety disorder. The Tribunal is of the view that even if it were to regard the appellant as having an adjustment disorder, it regards that adjustment disorder as being of such a minor nature, being a moderate anxiety state, that it does not constitute an injury for the purposes of s.4 of the Workers Compensation Act.

14.5 The Tribunal is satisfied on the evidence before it that the appellant had neither received a "personal injury", nor had he contracted a "disease" or suffered the "aggravation, acceleration, exacerbation or deterioration of a disease".

14.6 Furthermore, even if the appellant's condition giving rise to the periods of absence from duty could properly be regarded as being an injury within the meaning of s.4 of the Workers' Compensation Act, the Tribunal is not persuaded that the employment was a "substantial contributing factor" to the injury. It may be accepted that the appellant suffered a degree of anxiety and depression. These are not uncommon conditions which seem to afflict many individuals at different stages of their lives. So far as the Tribunal understands these issues the mechanisms triggering such conditions are far from being clearly understood by the medical and scientific communities. The Tribunal accepts in particular the opinion expressed by Professor Jones cited above, namely, the appellant's psychological problems are essentially endogenous and a consequence of the appellant's personality, rather than being substantially the result of any aspect of his employment.

14.7 The appeal is disallowed.

GROUNDS OF APPEAL

15 The appellant appeals on the following grounds:

3. The Tribunal wrongly rejected tender of the report of Dr AE Pusic dated 24 March 2003.

4. The Tribunal failed to give reasons, or failed to give adequate reasons for rejection of tender of the report of Dr AE Pusic as abovementioned.

5. The Tribunal failed to give adequate reasons as to why the Appellant's anxiety and adjustment disorder was not an injury for the purposes of the Workers Compensation Act 1987.

6. The Tribunal, insofar as it did express reasons, failed to apply the correct test of injury within Section 4 of the Workers Compensation Act 1987. The Tribunal failed to correctly apply Section 9 of the Workers Compensation Act 1987.

8. Such other grounds as may be available once transcript is received.

16 It is to be noted that appeals to this Court from the Tribunal are, by s.54 of the Government and Related Employees Appeal Tribunal Act 1980 (the Act), limited to appeals "on a question of law".

17 Argument on the appeal dealt with two areas: first, the Tribunal's rejection of the report of Dr. Pusic, and second, the alleged failure of the Tribunal to address the statutory criteria for injury. In relation to both matters, it was submitted that the reasons of the Tribunal disclosed an error of law, or alternatively, that the Tribunal failed to give reasons or adequate reasons for its decision.

18 I will deal in turn with these two topics.

REJECTION OF REPORT

Submissions

19 In considering this area, it is relevant to have regard to s.43 of the Act, which is in the following terms:

(1) The Tribunal is not bound by the rules or practice as to evidence and may, subject to subsection (2), inform itself on any matter in such manner as it thinks fit.

(2) The Tribunal shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Tribunal if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting.

(3) Nothing in subsection (2) prevents the Tribunal from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice.

20 Mr. McAuley for the appellant submitted that, in so far as the reasons given for rejecting the report could be understood, they indicated that the Tribunal had erred in law in so doing; or alternatively, the reasons given by the Tribunal did not amount to adequate or intelligible reasons, so that in that respect the Tribunal had erred in law.

21 Mr. McAuley submitted that the bare reference to the case of Makita was insufficient to justify rejection of the report. He submitted that reliance on the circumstance that Dr. Pusic asserted that his report was not "a full medico-legal report" showed error, because that could not possibly be a ground for rejecting the report. He submitted that the reference to the report not being based on "all the facts" showed that the Tribunal had misinterpreted Makita, as requiring that there be complete congruence between the facts proved before the Tribunal and the assumed facts on which a medical opinion was based.

22 Mr. Hislop QC for the respondent submitted that, on a fair reading of the reasons of the Tribunal, it was clear that it took the view that there was insufficient congruence between the facts assumed in the report and the facts as proved before the Tribunal for the report to be admissible, this being a view well open to the Tribunal.

23 Furthermore, he pointed out that the Act did not make the wrongful admission or rejection of evidence a ground of appeal, as was the case in s.32 of the Compensation Court Act 1984: cf. Butcher v. The Roads & Traffic Authority [1999] NSWCA 138 at [13], and [32]-[33]. Furthermore, he submitted, misapplication of the laws of evidence would not be a ground of appeal in circumstances where, according to s.43 of the Act, the Tribunal was not bound by the laws of evidence.

Decision

24 In his judgment in Makita, Heydon JA made it clear that complete congruence between the facts proved and the facts assumed by the expert was not necessary. At [38], he noted that it was sufficient "if the case proved is sufficiently like the case assumed to render the expert's opinion valuable" and he there referred to Paric v. John Holland (Constructions) Pty. Ltd. [1985] HCA 58; (1985) 59 ALJR 844; 62 ALR 85. He referred to this matter again at [64], where he said: "One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved".

25 Although the Tribunal gave as part of its reasons for rejecting the report that the report was not based on "all the facts", I would not read that as indicating a view that there needed to be complete congruence between the facts assumed by the expert and the facts proved in the case for the expert's report to be admissible. Nor would I read the reliance on the report not being "a full medico-legal report" as indicating that the Tribunal considered that there was some magic in that formulation. In my opinion, that reference was intended only to indicate Dr. Pusic's own acknowledgement that the information available to him, on which he based his diagnosis, did not cover all the matters dealt with in the histories in the other reports provided to him or the issues raised by Dr. Lee and Dr. Jones.

26 Understood in that way, in my opinion the reasons given by the Tribunal indicate that the ground on which the report was rejected was essentially that there was not shown to be sufficient congruence between the facts assumed by Dr. Pusic and the facts established before the Tribunal to make the opinion of Dr. Pusic relevant. In my opinion, that was a view of the matter open to the Tribunal, not involving any error of law. Furthermore, understood in that way, the reasons given by the Tribunal were adequate.

27 For that reason, in my opinion the appellant fails on this topic.

28 I would add that I do not accept Mr. Hislop's submissions based on ss.43 and 54 of the Act. Although the Tribunal is not bound by the laws of evidence, it would in my opinion be an error of law for it to entirely disregard material evidence because of a mistaken view as to the laws of evidence; in particular, if it, by reason of an error of law, entirely disregarded significant evidence which was relevant. The circumstance that appeals are limited to questions of law, and do not expressly lie in relation to wrongful rejection of evidence, would not in my view alter this situation.

29 I would also add that, even if error of law had been shown, the Tribunal was plainly entitled to take the view that, by reason of the incompleteness of the assumed facts, the expert opinion had little weight. In those circumstances, it does seem to me that there is in any event no reasonable possibility that the admission of the report into evidence would have affected the final decision of the Tribunal.

STATUTORY CRITERIA FOR INJURY

Submissions

30 Mr. McAuley submitted that the reasons given by the Tribunal in relation to the statutory criteria bearing on the question of "injury" showed that the Tribunal had applied the wrong test, or alternatively were so confused and deficient as to not amount to adequate reasons at all.

31 In so far as a basis was shown for the Tribunal's lack of satisfaction that the appellant had received a "personal injury" or contracted a "disease" or suffered the "aggravation, acceleration, exacerbation or deterioration of a disease", pars.[14.1] to [14.5] of the Tribunal's reasons showed that this basis was that the symptoms of the appellant were moderate, that he recovered, and that any "disorder" was of a minor nature. Mr. McAuley submitted that these were not valid grounds for failing to find an injury.

32 Turning to the question of Tribunal's lack of satisfaction that, if the appellant's condition could properly be regarded as being an injury, the employment was a "substantial contributing factor" to the injury, Mr. McAuley submitted that par.[14.6] of the judgment indicated that the Tribunal was hopelessly confused, and operated on the view that the real issue was whether the condition itself was major or minor.

33 Mr. Hislop referred us to Zinc Corporation Ltd. v. Scarce (1995) 12 NSWCCR 566, which he said established that an emotional reaction or impulse, not having a physiological effect, is not an injury. Mr. Hislop submitted that pars.[14.1] to [14.3] indicated that the Tribunal had taken the view that the complaints of the appellant were mere emotional reactions or impulses, not amounting to physiological abnormalities, and therefore not amounting to injury. He submitted that this was a view open to the Tribunal on the evidence.

34 In any event, Mr. Hislop submitted that the holding in par.[14.6] to the effect that the Tribunal was not satisfied that the employment was a "substantial contributing factor" to any injury was, of itself, fatal to the appeal; and this was a view open to the Tribunal and justified by adequate reasons.

Decision

35 In my opinion, there is some confusion in par.[14.1] to [14.4] of the Tribunal's decision. In par.[14.1], the Tribunal accepts that if an emotional reaction becomes excessive in degree or duration or is inappropriate to the stimulus, then there may be a physiological problem; but it never squarely addresses the question whether the anxiety symptoms of the appellant were excessive in degree or duration or inappropriate to the stimulus so as to indicate a physiological problem. The Tribunal refers to the view of Dr. Lee that the appellant had an adjustment disorder, and the view of Dr. Walker that the appellant had an anxiety disorder. It does not in terms reject those views. Accordingly, the Tribunal does seem to leave unclear whether or not it considered that the anxiety symptoms were such as to indicate a physiological problem, or a "disorder" which might amount to an injury. I think there is also force in Mr. McAuley's submission that there is nothing in the relevant statutory provisions to the effect that, if there is a physiological problem or disorder, then it should not be regarded as an injury because it is of a minor nature and/or the worker has recovered from it. On this basis, the Tribunal may have erred in that it failed to properly decide the issue of whether the appellant had received an injury within the meaning of the Workers Compensation Act.

36 However, in my opinion the Tribunal did also decide that, accepting the appellant's condition as an injury, it was not satisfied that his employment was "a substantial contributing factor" to that injury. In my opinion, that was a conclusion well open to the Tribunal, and a conclusion adequately supported by the Tribunal's reasons. It was a conclusion supported by the opinion of Professor Jones, and the Tribunal did give reasons for giving greater weight to the opinions of Professor Jones and Dr. Lee than to those of other medical witnesses. In circumstances where Dr. Lee's views as to the role of employment in the problems of the appellant were equivocal, and the view of Professor Jones was that employment did not significantly contribute to the appellant's difficulties, in my opinion it was plainly open to the Tribunal not to be satisfied that the employment was a substantial contributing factor to the appellant's (assumed) injury.

37 This was not a case where the Tribunal purported to decide the case on one ground and then merely expressed a hypothetical view as to another ground on which it did not rely. In my opinion, the Tribunal squarely decided both points adversely to the appellant, that is the question of injury and the question of "substantial contributing factor"; and in my opinion the appeal on this point should be dismissed because no error of law is shown in relation to the latter issue.

CONCLUSION

38 For those reasons, in my opinion the appeal should be dismissed with costs.

39 TOBIAS JA: I agree with Hodgson JA.

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LAST UPDATED: 01/03/2004