Australian Postal Corporation v Gallard

Australian Safeways Stores Pty Ltd v Zaluza (1987) 162 CLR 479 Coulton v Holcombe (1986) 162 CLR 1 Culley v Silhouette Health Studios Pty Ltd [1966] 2 NSWR 640 CASES CITED: Hackshaw v Shaw (1984) 155 CLR 614 Stannus v Graham (1994) Aust Torts Reports 81-293 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Voli v Inglewood Shire Council (1963) 110 CLR 74 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Appeal dismissed; Appellant to pay the respondent's costs, and to pay those costs on an indemnity basis from 4 February 2000.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

AUSTRALIAN POSTAL CORPORATION v GALLARD JUDGMENT

1 HEYDON JA: Background This is an appeal by the defendant from a verdict and judgment for the plaintiff given by Puckeridge DCJ, QC, on 18 March 1999 in the sum of $331,537 with costs. 2 On the morning of 12 December 1995 the plaintiff left the post office at Tweed Heads. While walking down a ramp, which led from the front of the post office to the street, she slipped, fell forward and hit her chin on a cement ledge. 3 The plaintiff called uncontradicted evidence from an expert witness, Dr Coyle, to the effect that that the "ramp had a manifestly unsafe angle of 11 degrees" and "that certain tests which he carried out, which showed wide variations between the static and dynamic coefficient of friction, indicated to him the slippery surface of the ramp and that it was inevitable that someone would come to grief" (Red 102C-K). 4 The trial judge made the following findings (Red 104S-105F): "I find that the ramp, because of its angle, was slippery, as found by Dr Coyle, and that it presented a foreseeable risk of injury to persons using the ramp as conceded by the defendant, particularly with its non-slip finish. However, in finding that the ramp as constructed the angle of eleven degrees presented a foreseeable risk I also take into account that that risk has to be assessed in the circumstances that the ramp was in frequent and daily use by people using the post office facilities. On the evidence of Dr Coyle that was an ever present risk. I find that the plaintiff slipped and fell on the ramp as a result of the steepness or angle of the ramp. I find that the defendant unreasonably failed to adopt any of the measures suggested by Dr Coyle to avoid risk of injury to the plaintiff due to the steepness of the ramp." 5 In relation to a defence of contributory negligence, the trial judge said (Red 112I-M): "I am not satisfied that the plaintiff failed to keep a proper lookout. I am not satisfied that she was in such a position on the ramp that she could use the handrail said to be available for her. I find that the defendant has not discharged the onus of proof on the defendant in relation to the allegations of contributory negligence." 6 The defendant contests the finding of a breach of duty; contends that in any event an allowance for contributory negligence should have been made in the range 10-331/3rd per cent; and challenges the extent of the awards for general damages and future economic loss.

Breach of duty: Ground 1 7 The defendant put two principal submissions to this Court. 8 First, it was submitted that it should not have been held liable "in the absence of notice that the ramp was unsafe, or something putting the appellant on inquiry". It was submitted that it had "no duty to inspect its premises for unsuspected defects", citing Stannus v Graham (1994) Aust Torts Reports 81-293. 9 I would reject the first submission. 10 The liability of an occupier is simply a duty to take reasonable care to avoid a reasonably foreseeable real risk of injury: Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 per Deane J, approved by Mason, Wilson, Deane and Dawson JJ in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. Neither those cases nor any other good authority supports the proposition that the defendant could not be liable unless it knew of, or had reason to suspect, unsafeness in the ramp. It is true that Stannus v Graham demonstrates that an occupier may in some circumstances be able to avoid liability by pointing to a lack of notice of a defect or of a factor creating suspicion of the defect. Thus Handley JA said that there was no evidence in that case that the occupier had reason to suspect any movement in the step (at 61,594). But he also said that it "was not … established that a close inspection by an expert the day before this accident would have revealed that it was likely to move in the near future" (at 61,565). The case is thus radically different from the present, since an inspection before the accident by a competent expert such as Dr Coyle would have revealed the defect. Stannus v Graham is also different from the present case in that the present case does not concern a feature of the relevant land which had been stable but unexpectedly moved; rather it concerned a feature which had had the defects identified by Dr Coyle for years. Further, Stannus v Graham is not authority for the proposition that the defendant had no duty to inspect its premises for unsuspected defects. Handley JA denied that "an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects". But the present defendant was not an occupier of residential property: it occupied property over which multitudes of people passed daily. A ramp is something which in the mind of a reasonable occupier would raise the risk of falls by slipping as a possibility to be investigated. 11 In any event, even if the general propositions underpinning the first submission were sound, there is no factual basis for their application. While the trial judge made a finding, albeit in tentative terms, that the defendant had an "apparent lack of awareness" of unusual steepness in the ramp causing it to be slippery (Red 103J-V), there was evidence that the plaintiff had been put on inquiry. Mr Savill, who as at 12 December 1995 had been the acting manager at the Tweed Heads Post Office for one day, inspected the defendant's records and found only one incident recorded in relation to the ramp in 1992: "A lady was walking up the ramp and she wrenched her leg when she was walking up and lost her balance and she sent a letter in reporting that to the, to the manager at the time" (Black 87Q).

While Mr Savill did not characterise this as a slipping incident, and the weight of his evidence as a whole is affected by the numerous grounds on which it would have been held inadmissible if it had been objected to, on his account of it it could have been explained by reason of slipping as distinct from other causes. The defendant attacked the plaintiff for not investigating this incident more fully. However sound that attack may be, in my judgment the accident could be described as one which put the defendant on inquiry as to whether the ramp was safe from the point of view of risks of slipping and otherwise. The trial judge so found (Red 104O-R). 12 The plaintiff contended that the present submission should not be entertained because it had not been put below. The plaintiff's submission was: "Further, no submission was made to the trial judge that ' … in the absence of notice that the ramp was unsafe … the Appellant should not have been found liable'."

It appears to be correct that the defendant did not put the submission below that the plaintiff could not establish liability without establishing either notice of unsafeness or the occurrence of something putting it on inquiry. However, counsel for the defendant did put a submission at the end of the section of his address dealing with liability as follows (Black 103J-L): "If there is nothing that puts the proprietor on notice, or the occupier on notice, unless it's blatantly obvious, if there is nothing that puts them on notice my submission is that that's a very important feature that your honour would weigh in the balance for the defendant in this case."

At an earlier stage counsel for the defendant had spoken of "weighing" factors including the defendant's lack of awareness (Black 101E) and of "a balancing exercise" (Black 101O-P). Those expressions imply that it was open to the Court to find liability even though it was unaware of either slipping or of an event raising a suspicion of a slipping risk. The question is whether, had the present submission been raised at trial, it can be said that "evidence could have been given which by any possibility could have prevented the point succeeding" (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7-8.) The present submission rests on a point of law. Though the respondent has not been heard in relation to this objection, given that a related issue of fact was raised at trial, I am at present unpersuaded that the point cannot be taken on appeal, though I would reject it for the reasons given earlier. 13 The second submission of the defendant to this Court was that: "The trial judge erred in treating the question of foreseeability of harm as relevant only to whether there was a duty of care, and not as to the content of the duty. … Stannus v Graham demonstrates that the appellant's ignorance of the deficiency of the ramp is material to the latter question."

The defendant also cited Culley v Silhouette Health Studios Pty Ltd [1966] 2 NSWR 640 at 642, where Herron CJ said: "it is fundamental on issues relating to negligence and the use of premises by occupiers that the experience of the occupier may always be given to show what was the reasonable foreseeability as to the chances of harm to any invitee. Such evidence bears strongly on the question of whether it was a breach of duty on the part of a reasonable occupier to fail to take some precaution …".

The submission went on to contend that "the critical issue" was whether the defendant knew or had reason to suspect that the ramp was slippery, and to point out that apart from the 1992 incident, which was not unequivocally shown to be a slipping incident, there was nothing to show that the ramp created a slipping problem. The submission concluded by denying that the plaintiff had established negligence. In oral argument the test was said sometimes to be that based on "reason to suspect", and sometimes to turn on whether the defendant ought to have known of the risk. In the end the defendant submitted that breach of the latter duty would only occur if the defendant had reason to suspect the defect. In a practical sense this amalgamates the two tests. 14 Even if Culley's case were directly relevant to the modern law, which it is not by reason of its reference to the now obsolete categories of visitor used in former times, duty to an invitee depended on what was known or ought to have been known, not on what the occupier had reason to suspect: Voli v Inglewood Shire Council (1963) 110 CLR 74 at 96 per Windeyer J. 15 A liability to a licensee depended on actual knowledge or on having reason to suspect. If the plaintiff in this case had to be categorised as either a licensee or an invitee, she would be an invitee, as the defendant conceded. The purpose of her visit was to collect mail, which is a matter in which the defendant had a pecuniary or material interest. If the old law were relevant, the duty owed was to preserve the plaintiff from dangers which were known or ought to have been known. Whether there is reason to suspect a danger was not the test. 16 The passages cited by the defendant which are said to reveal the error of treating foreseeability as relevant only to the existence of a duty of care and not to its content are (Red 103V-104G): "I would take the defendant's apparent lack of awareness into account in determining whether there was a foreseeable risk of injury but the defendant has conceded, in written submissions, that there was a foreseeable risk of injury. On further questioning of the defendant in relation to this submission the defendant's counsel conceded that there was a foreseeable risk of injury if the surface of the ramp did not have a sufficient non-slip surface. That being the case what has to be determined is whether the defendant was in breach of a duty of care owed to the plaintiff by failing to eliminate the risk of injury to people, including the plaintiff, using the ramp by any of the methods suggested by Dr Coyle."

It would be strange if the trial judge treated foreseeability as relevant only to the existence of a duty, since the defendant's submissions below did not dispute that there was a duty. Their opening words, which deal with breach, assume a duty (Black 1N-R). But even if it is assumed that the trial judge erred in not taking account of foreseeability of harm in evaluating the content of the duty, it does not follow that "the critical issue" was whether the defendant knew or had reason to suspect that the ramp was slippery. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 Mason J said: "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 a 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 the 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."

That passage was drawn to the trial judge's attention and its meaning was debated (Black 98G-103M). 17 Mason J did not in terms incorporate as a relevant factor either what a putative defendant knew or what it had reason to suspect. The question which Mason J posed is what "a reasonable man" in the defendant's position "would have foreseen". On that question the experience of the defendant was relevant, but not determinative, and the trial judge took it into account (Red 103J-X). Even if the magnitude of the risk, as perceived by the defendant, was low, the determinative issue is what a reasonable man would have foreseen. A reasonable man would have been armed with Dr Coyle's perceptions. Dr Coyle's conclusions were (Blue 25O-26J): " 5.0 Alternatives Available There were a number of reasonable, practical and economic alternatives, which had they been instituted would have significantly reduced the prospect of injury occurring. First, a handrail could and should have been installed next to the ramp. Secondly, the ramp could and should have been extended so as to subtend an angle resulting in an effective gradient of less than one in eight. Thirdly, the ramp surface could and should have been treated appropriately so as to provide a non slip surface. In this regard provision of broomed concrete would have been effective. I regard all of these options as reasonable, practical and economic, particularly having regard to the size and resources of Australia Post. 6.0 Concluding Comments and Opinion The accident that befell Mrs Gallard was a consequence of an environment which affords inadequate levels of frictional grip for a variety of commonly available footwear. Further, the ramp angle is excessive. These two factors doubtless interacted to lead to the accident that befell Mrs Gallard. While the shoes that she was wearing are more slippery than the other test soles that I used, there is nothing particularly unusual about the shoes. Any number of patrons attending Australia Post could be expected to wear shoes of this type. Further, it is to be noted that the ramp failed to provide adequate frictional grip for all the shoe types that I tested as far as the dynamic coefficient of friction is concerned. In my opinion, further slipping accidents are likely to occur on this surface. Reasonable, practical and economic alternatives existed, and had they been instituted the prospect of the accident that befell Mrs Gallard occurring could have been significantly reduced if not entirely obviated."

In oral evidence he said the ramp was "manifestly unsafe" (Black 67N). The cost of treating the ramp surface was about $100 (Black 67U-X) and other measures were "extremely inexpensive" (Black 69R-U). He said: "it was a very slippery surface" and "too steep" (Black 70N-P). The accuracy of these conclusions was not challenged by either relevant cross-examination or contradictory evidence (Black 98V-W). The defendant was thus correct to concede that there was a risk of injury from slipping which was reasonably foreseeable (Black 1P and 97R-S) because the surface of the ramp was insufficiently "non-slip" in character (Black 97W-98E and 98T-U). 18 In the circumstances the trial judge's reasoning does not reveal any error of law or fact. On Dr Coyle's evidence, the foreseeability of risk of injury was not so slight, even when considered alongside the defendant's experience, as to justify failing to take any precautions, inexpensive as they were, particularly in view of the 1992 incident.

Contributory negligence: Grounds 2-4 19 The defendant's complaint was that the plaintiff, "for no good reason, chose to walk down the side of the ramp with no hand-rail" instead of the side with a hand-rail. 20 The plaintiff gave the following evidence (Black 56I-L): "Q. Well on this particular occasion you didn't see it necessary to walk down with the handrail? A. There was - no there was other people, it was very busy the post office, it was almost Christmas time, so I can't - you know like -- Q. Well there's no reason why you couldn't walk down holding the handrail was there? A. I don't know whether there was any reason." 21 The plaintiff was "more towards the left than the centre of the ramp" (Black 51J-L). That conforms to the normal way in which pedestrians move along crowded areas, and that is a good reason for positioning herself where she did. A pedestrian using non-slippery leather court shoes with a one inch heel (Black 54U-55G) who was "being careful" in an area she knew "reasonably well" (Black 56D-F) cannot be said to have failed to take reasonable care for her own safety. 22 No argument was advanced in support of Ground 4.

General damages: Ground 5 23 The defendant's submissions were as follows (written submissions paragraphs 9-12): "9. As a result of the fall the respondent sustained injuries to her jaw, neck and upper thoracic spine. These were undeniably serious. The injury to her jaw in particular has required three operations. She may require another operation. In addition the injury sparked the onset of an eating disorder and severe depression. For the three years and four months between the accident and the trial the accident has had, as the trial judge put it, 'a devastating effect on her life generally' (Red Book, 105W-X). 10. However, her prognosis is good. By the trial she had substantially recovered from her physical injuries (Red Book, 109E-G). She has some ongoing pain and headaches, and these are treated with pain killers (Black Book, 30H-31T, 41V-X). According to the respondent's neurosurgeon, she was physically fit to return to work in December 1996 (Dr Tan, 18.12.96, Blue Book Vol 2, 272H). 11. Psychologically, her treatment has been successful to the extent that both psychiatrists appear generally in agreement that she should be able to return to her old career over the next year or so, commencing part-time (Nothling, 12.2.99, Blue Book vol 1, 60Q-X; Brown, 26.2.99, Blue Book vol 2, 268R-T). 12. The appellant submits that, in these circumstances, general damages should not have exceeded $70,000. Interest should be adjusted from $3,960 to $2,640, being $40,000 at 2% for 3.3 years (compare Red Book, 113M-114E)." 24 The trial judge's findings were (Red 105H-106X): "As a result of falling forward the plaintiff struck her chin on part of a cement ledge and jarred her neck. She had four sutures inserted under her chin. She also felt that the right side of her jaw was very painful and she could not chew properly. She stated in evidence, and medical evidence supports her in her claim, that she complained also of pain in the neck and restriction of movement of the neck. The medical evidence would indicate that her main problems from the injuries, for which treatment has been provided, was for damage to her neck and upper thoracic spine (right side primarily) with referred pain in her right shoulder; headaches stemming from her neck; bilateral temporomandibular joint pain and stiffness; and depression as a result of such injuries. The plaintiff has undergone surgery on three occasions for the pain and restricted movement in the jaw and has had a splint applied for that injury. This has caused her considerable distress. She has also suffered acute depression as a result of her injuries, which has resulted in sleep and eating disturbance, and has had a devastating effect on her life generally. In evidence she stated she had put on a large amount of weight and has received hospital treatment for a bulimia condition. The plaintiff continues to take medication for depression and the other symptoms of her injuries. Dr Tan, consultant neurosurgeon, in a report dated 18 December 1996 has stated that the continuation of her symptoms with her neck pain and down the right arm for some eleven months after the injury indicates to him that it is more than likely that the neck condition is permanent in nature. I prefer the view of Dr Tan in this regard to Dr Reid. Dr Soden, her general practitioner, in a report dated 20 October 1998 has stated that the plaintiff has had a long protracted illness with a combination of significant physical impairments and associated psychological disorders, and that she will continue to have intermittent neck and arm pain as well as significant jaw problems. Dr Soden further stated that the plaintiff is forever mindful of the tendency towards bulimia and will remain on antidepressant medication for some time to come. The physiotherapist, Ann Warner, has stated that the plaintiff will require periodic physiotherapy treatment for her pain [see Blue 1/225-226]. Also a need has been demonstrated for continuing psychological counselling. Such counselling has been clearly demonstrated by an attempt made by the plaintiff to take her own life. That attempt was in the form of placing scissors against her stomach but she did not proceed to push the scissors into her stomach. It does indicate, however, that the psychological effects of the injury have been very real." 25 The defendant's distinction between an unhappy past and a hopeful future is too sharp. First, a person who has suffered from acute depression and sleep and eating disturbances, and who continues to take medication for depression and the other effects of her injuries, is likely to continue to have those conditions to some degree. Her neck injury, which causes pain, is "permanent". She will continue to have intermittent neck and arm pain and significant jaw problems. She has continuing needs for psychotherapy and psychological counselling. Underpinning these findings and supplementing them to some extent is evidence of a rise in weight from 67-70 kilos of about 30 kilos (Black 20L-P) followed by a fall of 10 kilos; a change from an "active" (Black 10L-V) and "healthy, satisfying, loving life" (Black 32B) to one which was inactive, troubled by irritability and beset with sexual difficulties (Black 22T-23G, 34B-E and 81E-82S); the need for ongoing medication (Prozac, Panadeine Forte, Naprosan and Panadol) (Black 35N-36E) to control pain, described in detail at Blue 1/225-226 by her physiotherapist; inability to chew certain types of solid food (Black 29Q-S); restricted capacity to open the mouth (Black 29U) with consequential difficulties in dental treatment (Black 37D-J); and the need to wear a splint at night (Black 29V). The trial judge said (Red 108D-H): " … there is the psychological damage which, in relation to the accident, might seem extreme but is, I consider, real. I accept the plaintiff as to her symptoms and from my own observations of her in the Witness Box she is obviously still distressed and can easily become tearful." 26 It is not easy to disturb an assessment of general damages which rests on questions of impression, judgment and degree, where that assessment does not appear to be attended by any error of fact or principle and where the assessment was arrived at by a trial judge having very great experience in the field. In my opinion the award was not so high as to justify appellate intervention.

Future economic loss: Ground 6 27 The defendant's submissions were as follows (written submissions paragraphs 13-15): "13. The trial judge awarded $89,310, representing a permanent loss of one-third of the respondent's earning capacity. His reasons appear at Red Book 103E-J. Given the findings as to her physical recovery, and the consensus of the psychiatrists as to her psychological prognosis the trial judge's assessment appears to give substantial weight to the 'balancing' factor to which [he] refers: 'the real possibility that the plaintiff will have periods of time off work due to possible recurring symptoms from her injuries'. 14. The only evidence of possibly recurring symptoms that would require time away from work is that the respondent may require another jaw operation (compare the allowance for future medical expenses: Red Book 110V-111L, and see Dr Thurnwald, Blue Book vol 1, 242Q-S). This can be done as day surgery (cf. Blue Book vol 1, 239D), or perhaps with an overnight stay (cf Blue Book vol 1, 240N-Q). There is no evidence that any treatment would require lengthy time off work. 15. Giving due weight to the trial judge's findings an appropriate award for future economic loss would be that contended for by the appellant at the trial, viz, $55,900 representing: (a) 70% of the plaintiff's earnings for two years: $35,900; (b) a further sum for 'negative' contingencies, including loss of work due to recurring symptoms: $20,000.

Damages for future economic loss should therefore be reduced from $89,310 to $55,900." 28 Surgery to the head region is somewhat harder to recover from, it may be thought, than these submissions concede. 29 More importantly, the trial judge made further findings which suggest that there may be significant absence from work. 30 The plaintiff has an ongoing requirement for physiotherapy treatment (Red 106Q) and for psychological counselling (Red 106T). The plaintiff up to the time of the trial had been unable to resume any employment (Red 107D). At the time of the trial the plaintiff was not fit to cope with a full-time job and it was likely that it would be difficult for her to find casual employment in a low stress job (Red 107X). See also on this subject Anne Warner's report: Blue 1/225-226. The plaintiff's future employment prospects were not good (Red 108C). Further, the trial judge recorded and apparently accepted the view of the plaintiff's psychiatrist that "it is possible that she will not be fit for some years to come" (Red 108M). The trial judge doubted whether the plaintiff would ever resume work as a medical receptionist (Red 108R). All these findings are supported by detailed evidence, and the defendant did not suggest otherwise. 31 The defendant's submission was that the plaintiff should be treated as having only a 30 percent capacity for work for the first two years after the trial, thus losing 70 percent of her earnings to be compensated by a payment of $35,900. The defendant submitted that thereafter she would have full capacity to work, but she should receive a further $20,000 as compensation against negative contingencies. 32 The defendant's oral submissions concentrated on Red 109F-J where the trial judge said that his assessment of a loss of $143 per week took into account the view that the plaintiff had substantially recovered from her physical injuries and that psychologically she may be in a position in a short period of time to resume full-time employment, and balanced that against the real possibility that the plaintiff will have periods of time off work due to possible recurring symptoms from her injuries. The essential point made by the defendant was that there was no sound evidentiary basis for the proposition that the plaintiff would have periods of time off work in the future to a level sufficient to justify the award of a loss of $133 per week. 33 Upon the trial judge's findings that does not seem an excessive reduction. The defendant submitted that the plaintiff's problems were only in entering employment, and that once she had successfully entered employment she would retain it. The defendant pointed to the evidence of Dr Brown (Blue 2/268S-T): "I suspect that her level of social withdrawal and her discomfort in being with people may be the current limiting factor, however a slow and gradual attempt to return her to similar work, that is of being a medical receptionist, might be reasonable to attempt over the next three to six months."

The defendant submitted that the trial judge accepted this evidence and submitted that the tendency of the plaintiff to withdraw from social contact would be overcome. The defendant further submitted that this was a report responding to one of Dr Nothling's reports, he being a psychiatrist called by the defendant, and particular attention was directed to Blue 1/60R where the opinion was propounded that the plaintiff was probably medically fit to commence some part-time work as a doctor's receptionist. The trial judge however in effect found to the contrary of these opinions to some degree in expressing doubts that the plaintiff could resume work as a medical receptionist due to the reminder such a job would give her of the accident. Further, amongst the range of occupations open to the plaintiff, that of medical receptionist is one likely to call for a high degree of reliability and punctuality in attendance. 34 The findings of the trial judge at Red 109F-H appear to be soundly based on the medical evidence. As to the submissions of the defendant, that there was no basis in the evidence for asserting that the plaintiff would have periods of time off work, in my judgment Anne Warner's evidence recorded at Red 107B-108C is more than adequate support for that conclusion when considered against the background of the uncontroversial findings in relation to the future position of the plaintiff. 35 Given that no error of fact or law has been pointed to, and given that the overall award does not appear disproportionate to the injuries suffered, I would reject this ground of appeal.

Other Grounds 36 Ground 7 was abandoned and no argument in support of ground 8 was advanced.

2. That the appellant pay the respondent's costs of the appeal. 38 SHELLER JA: I agree. 39 STEIN JA: I also agree.

[Argument on costs] 40 SHELLER JA: The orders of the court will be:

2. Appellant to pay the respondent's costs, and to pay those costs on an indemnity basis from 4 February 2000.

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