Petterson NO v Road Accident Fund (6552/2003) [2005] ZAKZHC 28 (29 July 2005)

IN

THE HIGH COURT OF SOUTH AFRICA REPORTABLE

DURBAN

AND COAST LOCAL DIVISION

CASE NO. 6552/2003

In the matter between:-

ROBIN VALDON HOME PETTERSON N.O.

(Z B MALUNGA) PLAINTIFF

and

ROAD

ACCIDENT FUND DEFENDANT

J

U D G M E N T

NDLOVU J

1. The plaintiff, in his capacity as the curator ad litem on behalf of the minor child, Ziyanda Beryl Malunga (“Ziyanda”), instituted an action against the defendant for damages, in the total sum of R1 900 000,00 plus costs, arising out of bodily injuries sustained by Ziyanda when she was involved in a collision with a motor vehicle, a 3 ton truck, bearing the registration letters and numbers KZN 25396 (“the insured vehicle”) on 21 July 2000 in the Mswilili Location in the district of Umzinto. At the time of the collision the insured vehicle was driven by Magayisa Timothy Mkhungo (“the insured driver”). It was common cause that Ziyanda was a pedestrian at the time of the collision.

2. The parties having consented thereto, the Court ordered that the issues of liability and quantum be dealt with separately, in terms of rule 33(4) of the Uniform Rules of Court, and that the only issue which the Court had to decide was the issue of liability, with specific reference to the question of negligence.

3. The plaintiff alleged in the pleadings that, among other things, the collision was caused by the negligent driving of the insured driver who was negligent in one or more of the following respects:-

“7(a) He failed to keep a proper lookout.

(b) He failed to keep the motor vehicle he was driving under proper control;

(c) ………

(d) He failed to take proper cognizance of pedestrians in the vicinity of his motor vehicle, in particular proper cognizance of the minor child ZIYANDA BERYL MALUNGA and he failed to have due regard to the position in which they were immediately prior to his motor vehicle colliding with her and he further failed to have due regard to the narrowing distance between his motor vehicle and the said named minor child in consequence of which he drove his vehicle in such manner on or around a bend in the road (colloquially referred to as “cutting the corner”) so that it came into contact with the aforesaid named minor child when he drove his vehicle too close to the said child and/or to the edge of the road on which he was travelling;

(e) He failed to apply his motor vehicle’s brakes timeously or at all;

(f) He failed to swerve, turn aside or take any avoiding action to avoid a collision when by the exercise of reasonable care and skill he could and should have done so;

(g) He failed to maintain adequate control over his vehicle.”

In its denial of the plaintiff’s allegations the defendant pleaded that the collision was caused solely by the negligence of Ziyanda in that:-

Ad paragraph 2.2

“2.2.1 she failed to keep a proper lookout;

2.2.2 she unexpectedly entered the line of travel of KZN 25396;

2.2.3 she walked on the road at a time and place when it was unsafe for her to do so.”

4. The plaintiff adduced evidence from Ziyanda and Jeffrey Jabulani Khawula (“Khawula”). The insured driver testified for the defendant.

5. Ziyanda, who was 10 years old at the time (born on 22 November 1989) testified that on 21 July 2000 at about 14h30 she was coming from school walking along the gravel road in the company of her friends, Pretty and Joy Msomi and her cousin, Buyisiwe Malunga. They were walking in a file closely following each other, with her walking behind. She was knocked down by a motor vehicle and she sustained serious bodily injuries. She only remembered seeing a truck approaching but could not recall the circumstances under which the truck collided with her. She had lost consciousness which she regained some time later in hospital. The account of events as reflected in her statement which she subsequently made to the police was only a version as related to her by other people after the accident.

6. Khawula told the Court that he was walking along the same gravel road following a group of children, including Ziyanda. They were walking on the right hand side of the road from northerly to southerly direction, approaching a gentle curve which was slightly bending towards the right. It was in broad daylight and the visibility was good. He noticed a truck approaching from the opposite direction and it appeared to be traveling at a normal speed. That truck was the insured vehicle. At that point Khawula saw the children moving off the roadway onto the grass verge outside the road. The insured vehicle had a long bin at the back. As it drove past the children he noticed the rear of the insured vehicle knocking into Ziyanda, thus causing her to fall to the ground. He said the insured driver appeared to be unaware that he had been involved in a collision with a pedestrian because he continued driving further along. He then stopped the insured driver and informed him about the collision. Under cross-examination, Khawula stated that the insured vehicle had “cut the corner”, thus colliding with Ziyanda.

7. The insured driver testified that he was employed as a driver by the KZN Provincial Government Department of Health and, at the time, he was on duty carrying medicines packed in boxes and stacked in the bin at the back of the vehicle. The medicine boxes were packed at the same height level as the bin. On the day in question he was driving the insured vehicle from southerly to northerly direction along the road as depicted in the photos contained in exhibits “B” and “C”. He was approaching a bend that was turning towards the left.

8. As he approached the bend he saw school girls (they were clad in school uniform) approaching from the front, walking on his side of the road, to his opposite direction. As he was driving closer the children moved off the road and walked onto the grass verge alongside the road. He drove past the children without seeing anything happening. At the time he passed the children he was travelling at about 40 km per hour. After he had proceeded for about 20 metres he was stopped by a person who was driving cattle who informed him that he was being called behind by other people. He said he had had a clear view on the road and that there were no other vehicles on the road at the time. He had then reversed to the spot where he was being called to. When he came there he found a child, a girl, lying apparently injured on the road. With the assistance of other people present at the scene, he placed the child in the vehicle and conveyed her to the nearby local clinic for medical attention.

9. The defendant is obliged, in the case of a claim for compensation arising from the driving of a motor vehicle, where the identity of the owner or the driver has been established, to compensate any person for any loss or damage which such person has suffered as a result of any bodily injury to himself or herself, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic if the injury is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of their duties. (Section 17(1)(a) of the Road Accident Fund 56 of 1996.)

10. On the pleadings, the onus was on the plaintiff to prove that:-

1. The damages which Ziyanda allegedly suffered resulted from bodily injury to herself either caused by or arising out of the driving of the insured vehicle.

2. The bodily injury to Ziyanda was due to the negligent driving of the insured driver.

11. Therefore, the plaintiff had to show either that the driving of the insured vehicle was a direct cause of Ziyanda’s bodily injuries or that her bodily injuries were causally connected with the driving of the insured vehicle and that such driving was a sine qua non thereof. (See Barkett v S.A. National Trust and Acceptance Co. Ltd 1951 (2) SA 353 (A) at 365; Wells v Shield Insurance Co. Ltd 1965 (2) SA 865 (C) at 868-871.)

12. With regard to the alleged negligent driving of the insured driver, the plaintiff had to prove that:-

1. a reasonable person in the position of the insured driver –

(a) would foresee the reasonable possibility of his conduct injuring another person, such as Ziyanda, in her person and causing her patrimonial loss, and

(b) would take reasonable steps to guard against such occurrence, and

2. the insured driver failed to take such steps.

(see Kruger v Coetzee 1966 (2) SA 428 (A)).

13. It has been held by the Court in a number of cases that extra or special care on the part of motorists was expected to be shown in instances of automobile collisions where the injured parties were child pedestrians.

14. In Jones N.O. v Santam Beperk 1965 (2) SA 542 (A) at 548H as follows:-

“It has been emphasized in a number of decisions that a motorist approaching children who are near the side of a highway, is under a special duty to take care in relation to such children. This duty was restated recently in this Court in the case of South British Insurance Co. Ltd v Smit, 1962 (3) SA 826 (AD), in this form at p.837:

‘The propensity of children – even though well versed in road safety – to rush heedlessly across the street is, of course, well known. It is because of that very propensity that the law requires the driver of a vehicle who sees children upon or near his roadway to be specially upon the alert.’”

15. In S v Moodley 1966 (1) SA 248 (N) an accused had been traveling along the left hand side of the road at between 25 to 30 miles per hour when he saw a group of children

standing off the road on his left. He reduced his speed slightly and continued travelling at a distance of approximately one yard from the edge of the road on which side the children were, as he had been doing previously. One of the children dashed into the road and was struck by his vehicle. On a charge of reckless and negligent driving, he was found guilty of negligent driving. On appeal Caney J stated, at 250E:-

“More, however, than that, I consider it to have been the duty of the appellant, seeing the group of children so close to the road as this group was, to have deviated in his course. It was unnecessary for him to hug the left hand side of the road. He had half the width of a 33-foot road available to him, without crossing on to his incorrect side. He could have taken a course which would have given the children a very much wider berth. That, in my opinion, was a course which he should have taken. Had

he done so, the space available when the accident was about to happen would have been so much greater that it is almost certain that the child would not have been hit by the car, since the evidence is it was hit by the front of the car at its left hand side. The giving of the wider berth would have avoided the accident. By taking either step, keeping a closer and more observant attention on the children as he was approaching them, or by giving them a wider berth, the probability is that the accident would have been avoided. But certainly, in my opinion, he ought to have taken both those steps, and had he done so there would have been no accident.”

16. In the decision of Levy N.O. v Rondalia Assurance Corporation of South Africa Limited 1971 (2) SA 598 (A) a child who had been holding onto a hand of an adult, pulled into a roadway and was knocked down by a motor car. The driver of the car was held to be negligent. Holmes JA stated, at 599H-600C:-

“As a general proposition it is well settled, and it accords with humanity and common sense, that a motorist approaching young children near the edge of the road ought to drive with a degree of special care and vigilance because of their tendency sometimes to dash heedlessly across the road. To hold otherwise would be to put an old head on young shoulders, and to assume that they will look before they leap. But the rule must not be applied as a fixed principle without reference to the facts. The foreseeability of reasonably possible collision, and the degree of special care required, will vary according to the particular circumstances of each case, for example, the visibility of the children; their apparent age; their proximity to the edge of the road and to the path of the vehicle; their immobility or liveliness; the indications, if any, of an intention to cross the road; the extent of their supervision by a responsible person; their apparent awareness of the latter, and of the children, of the approach of the motorist;

the available width of the road; and the stopping power of the vehicle in relation to speed, brakes and road surface. Such factors

(and the list is not exhaustive) are interrelated and not individually decisive. Their cumulative effect must be considered.

Similarly, the particular circumstances will dictate the reasonable steps in relation to matters such as hooting, berth, swerving,

slowing down or pulling up, with a view to guarding against the occurrence of collision, the reasonable possibility of which was

foreseeable.”

17. In Santam Insurance Company Limited v Nkosi 1978 (2) SA 784 (A) Corbett JA stated at 791F:-

“The true position, it seems to me, is that, depending on the circumstances, a motorist may be bound to exercise especial care and vigilance not only towards children whom he sees, or ought reasonably to see, are present in or near the street but also towards hidden children whose presence there he ought reasonably to foresee or anticipate.”

18. In the case of Transvaal Provincial Administration v Coley 1925 AD 24, a case dealing with negligence relating to children in a school yard, it was stated at page 27 by de Villiers JA:-

“The care which is exacted by our law is that which the diligens paterfamilias would have taken in the circumstances. It is not the care which the man takes in his own affairs, nor that which the ordinary or average man would take. It is higher than that. The law sets up as a standard to which everybody has to conform that degree of care which would be observed by a careful and prudent man, the father of a family and of substance, who would have to pay in case he fails in his duty. It will be observed that the standard of conduct is a high one. The test is not the diligence of the supine man, but of the man who is alive to probable dangers and takes the necessary steps to guard against them.”

19. In Road Accident Fund v Landman 2003 (1) SA 610 (C) a 14 year old school girl was knocked down on the road in front of her school by a motor vehicle driving between 40 and 50 kilometres per hour. The child had been hidden from view of the driver by a stationary bus and had crossed the road from behind the bus to meet a friend on the opposite side. At the time there were numerous school children of various ages milling about in the vicinity. The road on which the accident occurred was approximately 6,5 metres wide. The motorist proceeded along the street for some 80 metres without reducing her speed and did not sound her hooter. At page 616H Thring J stated:-

“In the circumstances of this case, for Feris to proceed at an unabated speed of as much as even 40 kph, the lower end of the range found by the Court a quo and conceded by the appellant, was, in my judgment, negligent. She knew, or ought to have known, that at that speed there was no hope of braking to an emergency stop in four or five metres.”

20. Counsel for the plaintiff submitted that there were no other vehicles on the road at the time of the accident and that the insured vehicle was travelling at about 40 kilometres per hour. The children (including the minor child Ziyanda) were not in the roadway, but were off the roadway approximately 1 metre away from the side of the road and the accident took place on a bend with the insured vehicle turning to its left. The children were unsupervised by any adult and were walking in a group albeit a short distance behind each other.

21. Counsel for the defendant submitted that the evidence of the two witnesses for the plaintiff was materially contradictory and that it demonstrably exposed the unsatisfactory features of the plaintiff’s case. He pointed out, in particular, that apart from Ziyanda’s evidence being mutually contradictory, it was also entirely inconsistent with her statement which she made to the police subsequent to the accident. Whilst in her evidence in Court she had professed not to recall anything about the collision, in her statement to the police she had purported to remember clearly the circumstances under which the collision occurred. He further argued that as her evidence progressed, however, she seemed to know the details concerning the collision which she had earlier professed not to recall. He further criticized her as having been evasive in a number of respects whilst under cross-examination.

22. In my assessment of Ziyanda as a witness, I do not find in her a person who came to Court deliberately to tell lies. It ought to be recalled that this tragedy befell her when she was only 10 years old. Without getting into the nature and severity of the injuries which she sustained as a result of this accident (an issue more relevant on the quantum debate), it was obvious that she suffered, among other things, a serious head injury which she showed to the Court as she stood in the witness box. She had a healed depressed and pulsating sutured wound on her left forehead measuring about 7 – 8 cm long. She had lost consciousness and only came to when she was at Wentworth Hospital a few days later. In my view, there was nothing unusual and uncommon, under the circumstances in which Ziyanda came to be, that she could not, and did not, remember how the collision came about. It was also probable that when she returned home from hospital those who were in her company at the time of the collision, namely, Pretty and Buyisiwe (who were both older than her), related to her the circumstances under which the collision occurred. She, in turn, related this version in her statement to the police as though it was from her own recollection. Of course, such statement was hearsay to her. However, the circumstances remained unknown under which she made that statement to the police. The nature of the questions and the manner

in which they were put to her by the police officer who was taking her statement were unknown. Nevertheless, I was satisfied when she testified in Court explaining how the inconsistencies came about, and that the truth of the matter was what she told the Court in her evidence, namely, that she did not recall how the accident occurred.

23. Ziyanda was subjected to an extensive and vigorous cross-examination by the defendant’s counsel. It was contended, on behalf of the defendant, that several contradictions emerged from Ziyanda during her cross-examination. In my view, apart from the inconsistency between Ziyanda’s statement to the police and her evidence in Court, the discrepancies that may have emerged during her cross-examination were generally not of a material nature. In fact, despite her having stated that she could not recall how the accident occurred, Counsel appeared to pressurize her into saying something about the collision. Being a fairly young and relatively unsophisticated witness, it seemed to me that she found herself giving answers about something which she either did not know or was not certain about, including, in some instances, the version of the matter as related to her by her companions. As stated already, I was satisfied that she did not remember how the collision occurred and, therefore, whatever she may have said in response to questions during cross-examination, which purported to indicate that she knew how the collision occurred, can be disregarded as only unreliable evidence rather than deliberate lies. She did not appear to me to be a deliberately evasive and untruthful witness, but rather

a timid young girl who may even have rarely come to a city, let alone entering a court room, and, more so, the witness box to testify.

24. The defendant’s counsel also sought to have an adverse inference drawn against the plaintiff’s case for failure by the plaintiff to call Ziyanda’s companions as witnesses despite the fact that they were available to testify. Indeed, the Court would ordinarily be inclined to draw such inference in similar situations. However, each case is dealt with on its own merits. In the present instance I considered the fact that the witness who was called by the plaintiff as an eye-witness, namely Khawula, was an independent witness, in comparison to Ziyanda’s companions, one of whom was her cousin and the others her friends, and who, therefore, would probably not have testified against her. Even though Khawula knew Ziyanda and her family, he was an independent and unbiased witness who impressed the Court as being truthful, honest and reliable. In coming to this conclusion, the Court considered his demeanour in the witness box, his apparent unsophisticated and rural standing, and the lapse of time since the occurrence of this collision. His overall impression was that of a person who came to Court to tell the truth and not expecting any benefit therefrom.

25. It seems to me that most of what was contended as being material discrepancies in Khawula’s evidence, especially during his cross-examination by the defendant’s counsel, were features that were rather natural and consistent of a version that was not rehearsed and fabricated. In this regard, the Court considered his evidence in a holistic manner (including both its merits and demerits) and concluded that, on a balance of probabilities, in it the truth was told about how Ziyanda was struck down by the insured vehicle. As indicated hereunder in relation to some of the criticism levelled against Khawula’s evidence, most of it was, with respect, either unfair or unrealistic, from a pragmatic or logical point of view.

26. The collision occurred on 21 July 2000 and this was a common cause fact. Even if Khawula may have stated in his evidence that it occurred in 2002, there was nothing, in my view, to turn on that. It was obviously an innocent mistake, particularly taking into account that one was dealing with an unsophisticated witness. The date of the accident was an issue which could even have permissibly been canvassed with the witness by way of a leading question by the plaintiff’s counsel, since it was not only an undisputed fact but, as I have stated, one which was common cause between the parties. The impression the Court gained from the

witness’ mistake in this regard was that his recollection of the events surrounding the collision was still so fairly vivid in his mind that when he testified in September 2004 (four years after the accident) he probably thought the collision was only two years old.

27. The discrepancy in the distance from where Khawula was to the point of impact, being 30 to 40 metres as testified by him in his evidence contrary to approximately 100 metres as reflected in his statement to the police, was explained by the witness that these were only estimations. Of significance was the fact that the spot where he marked (as point “K”) on photos 7 and 8 of exhibit “C” as being the point where he was in relation to where the children were (including Ziyanda) when the collision occurred, afforded him a clear and unobstructed view of the point of impact at the time of the collision, which occurred on a clear day and in broad daylight.

28. I do not comprehend why Khawula was criticized for having placed the mark “K” on photos 7 and 8 of exhibit “C” as being the spot where he was at the time of the collision. He said he was walking on the right hand side of the road (from north to south) and that when the collision occurred he was opposite the electric pole as seen in the photo. There was no evidence to the contrary to influence the Court that he was not at that spot when the collision occurred. It follows that the fact of him being at point “K” placed him in a position where he could clearly observe the collision and that was probably the reason which enabled him to witness the collision.

29. Khawula was further criticized for not having mentioned anything about “cutting the corner” on the part of the insured driver, in his police statement, pleadings and evidence-in-chief. Indeed, this aspect of his evidence was important and one would have expected him to have mentioned it prior to his cross-examination by the defendant’s counsel. However, the Court had to consider his apparent relative illiteracy and level of ignorance, not only from the point of view of academic education, but also of motor vehicle driving and road language or colloquialism, including such phrases as “cutting of a corner”. This is an English expression which I doubt whether Khawula was even aware of. This was, it seems, a situation which depended largely on the competence or efficiency on the part of the interpreter who conveyed in English and, in particular, in relevant colloquial terms, what he understood when Khawula was relating his story at a given time.

30. Much was also contended about Khawula having testified that Ziyanda was struck by the rear part of the truck, whereas in his police statement he had stated that it was the “back end” of the truck which collided with her. To my mind, that version is basically the same. It was not necessary for the witness to have been able to observe the specific part of the bin that collided with the child in order for him to be believed. The collision was a tragic accident which happened so quickly that the witness could not reasonably be expected to identify the precise spot on the bin which collided with her. It sufficed for him to mention

that it was the back of the truck (the insured vehicle) which struck her.

31. The fact that Khawula stated that the children did not jump off the road when the insured vehicle appeared did not, in my view, detract from the probability that they did in fact move off the road when the insured vehicle appeared or came closer. Again, Khawula’s evidence in this regard can only be attributed to an innocent mistake or oversight on his part. After all, the fact of the children having moved off the road was mentioned not only by Ziyanda’s two companions in their police statements, but the insured driver himself confirmed it in his evidence.

32. It does seem to me that the negligence on the part of the insured driver was not established only from the evidence of Khawula, but also from that of the insured driver himself. He told the Court that when he approached the bend, travelling at 40 kilometres per hour, he noticed the children on the road and that they moved off onto the grass verge alongside the road. It would appear, however, that once he saw the children moving off the road, he removed his concentration from them and their movements. There was no evidence that he reduced his speed or even sounded a hooter. Having noticed that these were children he ought to have given a wider berth when he closed up to the area where the children were, and moved towards the right.

33. Besides, his own experience of that area had taught him that children on the road normally retrieved sugar cane from the back of sugar cane trucks. Whilst it was not clear to the Court why he had to mention this alleged delinquent practice on the part of children, since it obviously did not apply to the insured vehicle (which was not carrying sugar cane but medicine), this point established, in any event, that the insured driver had some foresight that the children might possibly interfere or somehow touch his truck as he drove past them, at which time, according to him, they were only about 1 metre away. Such practice simply confirmed the observation made by the Courts that children had a propensity to rush heedlessly across the road.

34. Therefore, the insured driver ought, in my view, to have been extra careful and given a wider berth, by moving more towards the centre of the road, once he reached the area where the children were, in order to avert any potential accident occasioned by this unpredictable behaviour of children on or along the roads. He conceded that the road was wide enough to accommodate two vehicles parallel to each other at the same time. It was also common cause that there were no other vehicles on that particular part of the road at that time. Had he given the wider berth, the collision would, in my view, not have occurred.

35. The other striking feature which again pointed at negligence on the part of the insured driver was the fact that he did not even see when Ziyanda was struck down. He continued driving along until he was stopped by other people when he was some distance away. Such conduct on his part confirmed the view that by the time he drove past the children he had completely removed his concentration from them, yet according to him, they were only one metre away from the side of the road. They were at or around the bend when he travelled past them. It would therefore appear that what caused the collision was the insured driver having either “cut the bend” or having unconsciously moved so close to his left hand side that he did not realize his vehicle had gone off the road and

encroached on the grass verge one metre outside the road where the children were. The fact of him not having noticed his motor vehicle colliding with the child can, therefore, only be attributed to him not having kept a proper lookout on and around the road where he was travelling at the time.

36. I am, therefore, satisfied that the plaintiff has succeeded in proving, on a balance of probabilities, that the negligence on the part of the insured driver was the sole cause of the collision between the insured vehicle and the minor child Ziyanda Beryl Malunga which occurred on 21 July 2000 in Mswilili Location in the district of Umzinto. There was nothing, in my view, which the minor child did that contributed to the cause of the collision as to warrant the apportionment of blame between the plaintiff and the defendant. She and her companions were walking on the right hand side of the road, which was the correct side for pedestrians. When the insured driver approached they moved off the road for at least a metre outside the road to allow the insured vehicle the right of way.

37. The plaintiff further sought a costs order in favour of the plaintiff, including costs of two counsel. In this regard, the plaintiff submitted that the plaintiff was a curator suing on behalf of the minor child who was obviously coming from an indigent family background. The minor child sustained serious head injury and the claim involved a large sum of money. It was further pointed out that the plaintiff did not litigate luxuriously with two counsel from the start. Initially an attorney attended to the pleadings and junior counsel was instructed to attend to the trial. Subsequently, however, senior counsel was engaged only

when the defendant engaged senior counsel. In any event, it was submitted, the matter was not without difficulty, given the fact that the injured minor child could not remember anything about the collision. On the contrary, counsel for the defendant argued that although the defendant had employed senior counsel, there had been no need for the employment of two counsel on the other side. The defendant’s pleadings were attended to by its attorneys whereafter senior counsel was engaged to attend to the trial.

38. Although the dispute before the Court involved mainly factual issues, these were not without complications. There is little doubt, if any, that the plaintiff’s case would have stood at a disadvantage had the plaintiff employed junior counsel to face up to the defendant’s senior counsel. In that way, the interest of the injured minor child would have been jeopardized. I am, therefore, inclined to grant a costs order as sought by the plaintiff.

39. In the result, I make the following order:-

(a) The collision on 21 July 2000 between the insured vehicle and the minor child, Ziyanda Beryl Malunga, was caused solely by the negligent driving of the insured driver, Magayisa Timothy Mkhungo.

(b) The defendant is liable to compensate the plaintiff for any damages which the plaintiff may prove.

(c) The defendant is to pay the costs of this action thus far, including the costs of two counsel.

……..………………………………

Counsel for the Plaintiff : Mr A.K. Kissoon-Singh SC

Assisted by : Mr B.S.M. Bedderson

Instructed by : Friedman & Associates

Counsel for the Defendant : Mr Y.N. Moodley SC

Instructed by : Livingston Leandy Inc.

Date of Hearing : 23 September 2004

Date of Judgment : 29 July 2005