1 New Years Day 1999 was no cause for celebration for this unfortunate applicant. On that day he was involved in a transport accident when the vehicle he was driving was struck on the right side causing a collision with a traffic light. The applicant, Mr Simon Rzanovski, was taken to the emergency department of St Vincent's Hospital where he was found to be suffering a fracture of the right superior pubic rami and right sacrum involving the sacral foramen and the right ischial ramus, lacerations to the head and lower limbs and facial bruising.

2 On 4 January 1999 he was discharged from St Vincent's to the Epworth Rehabilitation Centre where he remained until his eventual discharge on 14 January 1999. On 16 January 1999, he presented to the general practitioner Dr Alekozoglou under whose care he remains.

3 On 17 September 1999, he suffered an acute myocardial infarct. He was resuscitated by an ambulance officer and transferred to intensive care at the Austin Hospital. He sustained hypoxic brain injury.

4 The question to be decided by this Tribunal is whether the myocardial infarction suffered by the applicant on 17 September 1999 resulted from the transport accident that occurred on 1 January 1999.

5 Put simply the applicant's case is that the applicant suffered depression as a result of the transport accident and that this added risk was a cause of the subsequent cardiac arrest. And it is not in dispute that if the depression were a cause of the heart attack, the applicant's case would be made out subject of course to apportionment if appropriate or applicable.

6 There was some argument before me about the effect of section 76(2) of the Transport Accident Act that "a person claiming to be entitled to receive compensation under Part 3 during the first 18 months after the transport accident or under Division 1 of Part 10 bears the onus of proving the entitlement." The curiosity in relation to this section is that a claim for impairment benefits under the Act cannot be made until "18 months after the accident" (my underlining) - see section 46A of the Act. It does seem incongruous that claims for loss of earnings, or for medical and like benefits attract the operation of section 76(2) but claims for impairment benefits do not. Be that as it may, I think little turns on the distinction in this particular case.

7 In Golem v Transport Accident Commission [2002] VCAT 319 Judge Bowman provided a preliminary ruling concerning whether any onus or burden of proof existed in that particular matter and some of his comments are pertinent in this case. Having stated that it seemed to him that the clear state of the law was that a burden of proof in the curial sense did not exist, he went on to state -

What is required of the Tribunal, placing itself effectively in the shoes of the decision maker, is a state of satisfaction that the decision at which it arrives is the correct decision on the basis of the material then before it. Doubtless parallels exist and assistance can be gained from a considerable number of decisions including Commonwealth of Australia v Muratore [1978] HCA 47; (1978) 141 CLR 296, Phillips v Commonwealth of Australia [1964] HCA 22; (1964) 110 CLR 347, Pethick v Commonwealth of Australia [1960] HCA 75; (1960) 103 CLR 643 and Green v VWA (1997) 1 VR 364. Both parties argued that to varying degrees, these decisions provided assistance to them. However, the bottom line is that the authorities establish that, in proceedings such as this before a Tribunal such as this and pursuant to legislation such as the Victorian Civil and Administrative Tribunal Act 1998, no burden or onus of proof in the curial sense exists.

It may be that, the closer one gets to something resembling an adversarial contest with experienced counsel representing the parties, the closer one gets to the system applied in the courts and the greater the reluctance on the part of the Tribunal to interfere and impose its own inquisitorial directions - see the remarks of Eames J in Bausch v TAC. Similarly it can constitute an error of law - a concept that bears some resemblance to a burden of proof. However, as has been said, matters such as these may remain inquisitorial and, in such context, the concept of a burden of proof such as that operating in a court of law has no place, save in a situation where there is some specific provision such as s.76(2) of the Transport Accident Act.

8 The matter before me is a review of an impairment assessment and as such is not to my mind governed by section 76(2). The position is as set out by Judge Bowman. In Bausch v Transport Accident (1996) 11 VAR 117 Eames J held (and I quote from the headnote) that "the task of the AAT (the predecessor of VCAT) in reviewing a decision is to determine on the material before it whether the decision in the correct or preferable one" and that is the approach I intend to take.

9 Section 3 of the Transport Accident Act 1986 defines a transport accident and section 3(3)(c) of the Act provides -

(c) a reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle...

10 In his statement to the Tribunal, the applicant's son stated his father smoked 5 to 10 cigarettes a day. In his viva voce evidence this estimate increased to 10 to 15 at home, that is, 10 to 15 observed by the son. Dr Alekozoglou told the Tribunal his records and/or recollection indicated the applicant had a 20 per day habit in 1998 and 30 per day in 1999 in the post-accident period. Histories taken by practitioners indicate a long term smoking habit - for example 30 per day (Regent Medical Group October 1982), 25-30 per day (Austin January 1999), 30-40 per day (Austin notes September 1999), 40 per day for 40 years (Austin May 2001). Of course we do not know the source of the various histories given, but overall the picture is confirmatory of a long term smoking habit far in excess of that suggested by the son and over a period well in excess of twenty years.

The applicant's post-accident depressive history.

11 The applicant's son told the Tribunal that following the transport accident he saw sadness in his father and that his father he was in constant pain and suffering and had difficulty sleeping as a result. He said his father was unhappy because he could not provide for the family and this failure to provide was seen as a sign of weakness in Macedonian communities.

12 Dr Alekozoglou provided the best evidence (indeed the only evidence) available for the period between the accident and the cardiac arrest. On 1 March 1999, the applicant complained to him of night dreams about the accident and poor sleep, on 8 July 1999 the doctor noted the applicant's "rather depressed mood and poor sleep", on 21 July 1999 he reviewed the depression and discussed the applicant's low mood with him and assured him that with time his condition would improve and on 24 August 1999 the applicant reported he could not cope with his poor mobility. Dr Alekozoglou confirmed that pre-accident, the applicant's risk factors were his high cholesterol and his smoking and that additionally he suffered from chronic obstructive airways disease. He confirmed that in the post-accident period the applicant told him he was unhappy about the stiffness and pain he suffered; the doctor said this produced a reactive depression but in his view it was not of sufficient magnitude to necessitate medication. As time went on the applicant became more mobile and the doctor reassured him that his prognosis was good. He felt there would be resolution of the pain and mood in time. He was adamant that the applicant's condition merited neither medication nor psychiatric intervention.

13 Professor Paul Nestel opined that the complaints set out in Dr Alekozoglou's notes were suggestive of clinical depression. He took a history from the family of "deep depression" but I place little reliance on that description having regard to the general unreliability of the family evidence. And as the evidence in this matter continued, it became obvious little turned on whether the depression was severe or minor.

14 Overall I prefer the evidence of Dr Alekozoglou. He treated the applicant for years and he was the only practitioner appearing before the Tribunal who actually saw the applicant on numerous occasions in the period between the accident and the heart attack.

The evidence

15 At the close of the applicant's case I indicated to both counsel that I would not be placing any reliance on the evidence given by the applicant's wife and it is incumbent on me to explain that in short detail. The applicant's wife was a witness who was hard to understand and in order to assist all the parties, the matter was adjourned for a short time to enable the Tribunal to obtain the services of a Macedonian interpreter. In her interpreted evidence, Ms Raznovski showed she had formed a fixed and intransigent view about the cause of her husband's cardiac event and in her denials of matters put to her, her responses eventually bordered on the ludicrous. She was not a credible witness and for that reason I have put her entire evidence to one side.

16 The applicant's son, Mr Tony Raznovski gave viva voce evidence and made statements on his own and his father's behalf which were tendered to the Tribunal. In addition the Tribunal heard from the following medical witnesses:

Dr Andrew Tonkin, the cardiologist who has treated the applicant since his cardiac event;

Mr Peter Mangos, an orthopaedic surgeon who examined the applicant for medico-legal purposes;

Dr I Alekozoglou, the applicant's general practitioner who has treated the applicant since 1996;

Mr Kenneth Myers, a vascular surgeon who examined the applicant for medico-legal purposes;

Professor Paul Nestel, a consultant physician who examined the applicant for medico-legal purposes; and

Dr A Goble who prepared a medico-legal report based on the volumes of material presented to him.

17 A number of other reports were tendered to the Tribunal and where important, I will make reference to their content.

18 In viva voce his evidence (he made no prior statement), Dr Tonkin referred the Tribunal to two (in his view) significantly important studies entitled:

Association of psychosocial risk factors with risk of acute myocardial infarction in 11119 cases and 13648 controls from 52 countries (the INTERHEART study); and

The position statement update of National Heart Foundation of Australia "Stress" and coronary heart disease: psychosocial risk factors.

19 If I understand his evidence correctly, the thrust of the Interheart study was that it indicated a significant association "between self-reported depression and the risk, and independent of other risk factors, and the risk of a first myocardial infarction" within a period of twelve months preceding the infarct, such depression lasting at least two weeks. It indicated "that there was an independent association between self-reported depression and occurrence of a first heart attack..." In speaking of "stress" generally, the study looked at job stress, adverse life events, financial stress, to reactions to stress such as depression, anxiety and sleeping disorders.

20 The other study was a review of other systematic reviews of evidence relating to major psychosocial risk factors. The end review was conducted by an Expert Working Group of the National Heart Foundation of Australia. Dr Tonkin was a contributor to the review but he was at pains to explain that the expert working group merely reviewed the findings of other studies. The findings of the group were set out in summary form and they bear repeating in order to understand the context of Dr Tonkin's evidence.

The group concluded that (i) there was strong and consistent evidence of an independent causal association between depression, social isolation and lack of quality social support and the causes and prognosis of coronary heart disease (CHD);

There was no strong or consistent evidence for a causal association between chronic life events, work-related stressors (job control, demands and strain), Type A behaviour patterns, hostility, anxiety disorders or panic disorders and CHD;

The increased risk contributed by these psychosocial factors is of similar order to the more conventional CHD risk factors such as smoking, dyslipidaemia and hypertension; and

That the identified psychosocial risk factors should be taken into account during individual CHD risk assessment

21 Dr Tonkin told the Tribunal that in general, coronary heart disease develops due to a mixture of genetic influences and environmental factors. In examination in chief he stated -

There is now good evidence from a recently published study that up to 90% of the variations in risk of heart attack are explained by environmental risk factors and included among them are cigarette smoking, high blood pressure, high cholesterol, physical activity, other nutrition factors such as lack of fruit and vegetable intake. And now there is evidence that psychosocial factors such as depression are important.....about 90% of the variations in rate of heart attack may be explained by variations in those risk factors.

22 It was his view that increased smoking post-accident and depression post-accident would both increase the risk of myocardial infarct. In the case of the depression, it increased the risk twofold. Asked whether putting together post accident depression, increased smoking and the stressful life event itself would increase the applicant's risk of infarction he responded that an increase in risk was possible but he added the caveat that other matters, such as age and pre-accident smoking would also be contributory risks. In general terms he agreed that there were four major risk factors in play for this man - his consumption of cigarettes over a long period, his age, the fact that he is male, and if there were an appropriate diagnosis, his depression.

23 In relation to the suggestion put forward in Mr Rosalion's report concerning the likelihood of cardiac injury sustained at the time of the accident, he told the Tribunal he thought that scenario unlikely.

24 Professor Paul Nestel is a specialist physician associated with the Heart Centre at the Alfred Hospital. In the report he prepared for this application, he concluded that he believed "that there is a reasonable probability that the stressful event of the car accident that led to chronic anger and depression over several months contributed to Mr Rzanovski's heart attack." In cross-examination he told the Tribunal that he had taken his history from the mother and son, and that he had proceeded on the basis of the applicant suffering severe depression for the full period between the accident and the cardiac event and continuous pain over the same period. The professor also posited a link between a possible blow to the sternum with possible damage to an atherosclerotic plaque and said that blows to the sternum have been known to precipitate a heart attack. If I understand his evidence correctly, he was posing the theory that the applicant's admission to hospital in May 1999 complaining of chest pain might have the harbinger of the later heart attack. In relation to the possibility of cardiac injury in the accident, I consider that hypothesis was discounted by the other two cardiac specialists who appeared before me.

25 Mr Alexander Rosalion is a cardio-thoracic surgeon who prepared a report for the Tribunal. He had apparently examined the applicant on more than one occasion. His conclusion was thus -

The main issue remains as to the relationship of his myocardial infarction to the motor vehicle accident. Most certainly his major disability at that time will relate to hypoxic brain injury subsequent to infarct. My opinions in this regard have not altered. The possible association is not strong but contributing factor could include the possibility of direct myocardial or coronary injury at the time of the accident, which was manifested with some chest pain subsequently leading to his infarct. The other factors relate to the stress of the injury and subsequent effect and also its effect on his cardiac risk factors, noting that his cholesterol, blood sugars, blood pressure and smoking all increased following his accident. The contribution of these factors as well as that of stress would possibly indicate some relationship to the car accident but it is not possible to make the connection with scientific certainty. It is possible, however, that these factors have contributed to his infarct.

26 Dr Kenneth Myers (vascular surgeon) examined the applicant in October 2000. The main thrust of his examination was in relation to the applicant's permanent impairment arising out of the physical injuries sustained in the accident. In his written report he did however offer that in his opinion, the motor vehicle accident did not in any way predispose to subsequent development of the applicant's heart attack. He believed that to be a consequence of smoking. In his viva voce evidence, he tended to re-frame his opinion based in the available more recent literature but cardiology is not his speciality. For that reason I put that part of his evidence to one side, preferring to consider the views of the practitioners with the appropriate specialist expertise.

27 Dr Alan Goble is a well-known cardiologist. He did not personally examine the applicant but was supplied with five volumes of relevant material to assist him. In his report he referred to the applicant's admission to hospital in May 1999 and noted that that was one of few times the applicant had been noted to have elevated blood pressure readings. He was shown the result of an ECG taken during that admission and noted the findings. It was his view that if anything notable or sinister was to be inferred from the result, then further follow-up would have occurred and this did not happen. He dismissed the complaint of particular pain recorded in St Vincent's notes because they were not in his opinion at all indicative of cardiac problems.

28 Dr Goble formed the view that on the information before him, it was highly unlikely the applicant had any pre-existing cardiac symptoms that might have led to or contributed to the infarct. He considered the applicant's major risk factor was smoking and noted that the recognition of other risk factors (high cholesterol, elevated glucose, and mildly elevated blood pressure) was not until after the transport accident and that in his view any contribution of the motor accident to these risk factors was trivial if there was any at all.

29 The upshot of the evidence is that apart from Professor Nestel, no witness has elevated the causal link to anything greater than a possibility. In cross-examination Dr Tonkin was being asked about some conclusions reached by Dr Goble and his response was, to my mind, quite significant. He said "I believe that there is still the possibility, if the car accident was associated with the onset of depression, or the worsening of depression, that the motor vehicle accident could be associated with a heart attack, could be, I can't say anything more."

30 Because Dr Tonkin placed so much emphasis on the findings in the two heart studies, it is proper that I consider the effect of those epidemiological studies. The use of such studies was considered in some depth by the New South Wales Court of Appeal in Seltsam v McGuiness and Anor; James Hardie & Co Pty Ltd v McGuiness and Anor (2000) 49 NSWLR 262. This was a case which really came down to a contest between two epidemiologists giving evidence about links between asbestos and renal cell cancer and in that respect the case has some similarities with the one before me although in Seltsam at first instance the Court had before it one of the authors of the major study relied on. At p.274 Spigelman CJ considered the use of epidemiological evidence and set out the law with some particularity, and having pointed out that for the purpose of determining whether exposure to a particular substance is the legal cause of a particular disease, epidemiology only provides evidence of possibility, he continued -

Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.

The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. See especially the unanimous joint judgment of the High Court in St George Club Ltd v Hines (1961) 35 ALJR 106 at 107; [1962] ALR 39 at 41 where the court referred to Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 as authority for the following proposition: "In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant's default."

In Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310, Mason J referred to:

"... the ordinary onus of proof which rests upon a plaintiff to establish on the probabilities that a medical condition or disability from which he suffers is 'caused or materially contributed to' by the defendant's wrongful conduct (Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 620, per Lord Reid). Consequently as the decision in that case demonstrates, the plaintiff will fail if all that he can show is that his disability might have been so caused...."

See also Cole v Commonwealth (1962) 62 SR (NSW) 700 at 708; 79 WN (NSW) 453 at 460. In Roulstone v Ketley [1966] 2 NSWR 389 at 394, Walsh J made a clear distinction between a "theoretical possibility" and "future probabilities", as approved on appeal in Ketley v Roulstone (1961) 34 ALJR 495 at 497; and see at 496. Further see Sydney County Council v Furner (1991) 7 NSWCCR 210 at 213-217.

The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197:

"... The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360n. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence."

The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not by itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form "strands in a cable" of a circumstantial case.

32 Under the heading "Increased risk and mere possibility" the learned Chief Justice stated that "some of the epidemiological evidence suggests some increase in risk. On the approach I believe to be appropriate, that evidence and that conclusion are circumstantial facts which may be taken into account as strands in the cable for the purpose of drawing the inference that the particular exposure caused or materially contributed to the injury in the specific case." Citing Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, 315-6 he noted the conclusion that the law does not regard an increase in risk as satisfying the legal requirements of causing, or materially contributing to injury.

33 Mr Halley of counsel who appeared for the applicant referred me to a decision of this Tribunal in Rowe v TAC (unreported 6.4.1998 per Member Cooney). In that case Ms Cooney had evidence that the applicant had longstanding pre-accident cardiac symptoms and that the injuries sustained in the transport accident "contributed to the acceleration of his death". But the applicant in that case had undergone limb amputation following a tractor accident, had died a few days after being discharged from hospital following by-pass surgery and as with most of these cases, it turned on its individual facts and is not particularly analogous with the case before me. In Rowe's case the applicant had longstanding cardiac symptoms and that is not so here.

34 There is really little difference in substance between the views expressed by Dr Goble and Dr Tonkin. It is true that Dr Goble stated that the matter of stress as a risk factor is still the subject of robust controversy in the medical profession but the purposes of the case before me I accept the opinions expressed by Dr Tonkin that depression is more likely than not an added risk factor.

35 As I indicated earlier, I accept unreservedly the evidence of Dr Alekozoglou, that is, that the applicant had some reactive depressive symptoms during the period that intervened the accident and cardiac arrest but which did not require either medication or psychiatric intervention.

36 I accept the evidence of Dr Alekozoglou that from his own observations the applicant's pre-accident risk factors were his smoking and his high cholesterol.

37 It follows from the foregoing that I accept that the applicant's pre-accident risk factors were his age, his sex, his consumption of cigarettes over a period in excess of 20 years and his high cholesterol.

38 Adopting the reasoning in the Seltsam case, the question now to be answered is whether the evidence before the Tribunal is such as to justify an inference of probable connection between the transport accident and the cardiac arrest. True it is that the Tribunal can consider those matters that go to make up the "strand" or "net" of a circumstantial case for causation; in this case the increased risk occasioned by the applicant's post-accident depressive symptoms. But employing the reasoning of Spigelman CJ in Seltsam (who in turn accepted that of Mason P in the Mintex case), can the Tribunal draw the inference that the post-accident depressive symptoms caused or materially contributed to or were a cause of the ultimate injury in this case? On the evidence before me I cannot so conclude. Indeed just as neither Dr Tonkin nor Dr Goble (both acknowledged experts in the field of cardiology) was able to say that the applicant's smoking was a probable cause of his heart attack, neither gave evidence that it was more probable than not that the depression caused it. Unfortunately the whole of the evidence fails to rise above the level of increased risk and mere possibility or to use Don Tonkin's terminology, association. I was not persuaded by Professor Nestel's evidence that the post-accident depression gave rise to the cardiac arrest. Although he is a much respected expert I felt that his advocacy stance in this case and ex post facto diagnosis was less than helpful.

39 Matters of increased smoking post-accident and decreased exercise post accident, the ultimate development of diabetes and elevated blood pressure were matters canvassed in evidence but the view of the experts was that little turned on these extra factors. Similarly little turns on the short admission to hospital in May 1999.

40 I find that the cardiac arrest and subsequent hypoxic brain damage sustained by the applicant in September 1999 were not caused by the transport accident of 1 January 1999.

Impairment

41 The applicant sustained orthopaedic injuries in the accident. In relation to those injuries the applicant was examined by Professor Myers, Mr Mangos and Mr O'Brien. Mr. O'Brien was not called. Each of these experts examined the applicant after the cardiac event. Mr Mangos awarded an impairment of 5% each for injury to the cervical spine and lumbar spine while Professor Myers and Mr Mangos awarded 4% impairment in relation to the right hip. Mr O'Brien made no assessment in relation to the neck and back and opined that hip movement was good on the day of his examination. I accept the assessment of 4% impairment to the right hip. I do not accept the assessment in relation to the neck and this is because Dr Alekozoglou told the Tribunal he believed there was no neck injury in the transport accident. In my view he was better placed as the treating general practitioner than the medico-legal specialists to observe the applicant and

42 comment on his injuries.

43 In relation to the lumbar spine, for the applicant to obtain an assessment of 5%, he must satisfy the requirements of the Guides to the Evaluation of Permanent Impairment (4th edition) and in particular the requirements set out on page 3/102 of those Guides. For a impairment of 5%, the relevant description is as follows:

The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, non-uniform loss of range of motion or non-verifiable radicular complaints.

44 When cross-examined in relation to his assessment for the lumbar spine, Professor Myers conceded he was not aware of any objective evidence of injury to the lumbar spine. Certainly there is no evidence from him or from the general practitioner of any lack of uniformity in the range of movement, no complaint of radicular pain and no guarding. Dr Alekozoglou's report indicates the applicant sustained musculo-ligamentous injury to the lumbar spine but that is a far as the evidence goes. I reject Professor Myers' assessment in relation to the lumbar spine.

45 That takes me to the matter of psychiatric impairment. Dr Michael Epstein examined the applicant on 21 April 2004 for the purposes of assessment. The applicant was unable to give any meaningful information and Dr Epstein's report indicates the history obtained by him was from the applicant's wife and son. At the time of the hearing Dr Epstein was away from Melbourne but his report was tendered to the Tribunal. In his report he assessed the applicant's level of impairment at 75% but noted that the impairment mostly related to the effects of the myocardial infarction. In his report he noted the applicant was not anxious travelling as a patient and he had no significant post-traumatic symptoms after the accident. Of course this opinion arises from the history given to him by the family. His impression was that "as a result of the car accident itself he had ongoing pain and arising from that he had developed a mild Adjustment Disorder with depressed mood but there was no evidence of any specific impairment which was not secondary to physical injury prior to his myocardial infarction.......He has some minimal impairment arising from the effect of his Adjustment Disorder with depressed mood coming from pain from the original transport accident. I estimate that level of impairment at 10%."

46 It seems to me that even were Dr Epstein to have been called, he would not have been in a position to allocate any portion of his impairment assessment towards what are colloquially referred as "primary symptoms." I gathered from counsel appearing on the day that they wished the substantive matter to go ahead and were reluctant to consider an adjournment due to Dr Epstein's absence. I think the end result was that, should it be necessary to hear from Dr Epstein, the proceeding could be relisted for that purpose. As the matter presently stands the applicant's impairment arising out of the transport accident is 4%.

47 I propose to adjourn this matter until 10.00 am on Thursday 21 April to enable the parties to confer and if no further action is required, the decision of the respondent made on 24 January 2001 will be affirmed on that day.

48 The matter of costs is reserved.