APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 157
Lady Smith Lady Dorrian Lord Drummond Young	Appeal No: XJ356/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL BY STATED CASE AGAINST CONVICTION AND SENTENCE   by   GRAEME DICKSON   Appellant;   against   PROCURATOR FISCAL STIRLING   Respondent:   _______

 

Appellant: Collins; Capital Defence, Edinburgh

Respondent: Prentice QC AD; Crown Agent

 

27^th August 2013

Background
[1] The appellant was convicted at Stirling Sheriff Court, on summary complaint, on 21 February 2013, of the following charge:

"on 7^th March 2012 on agricultural land, at Lower Greenyards Farm, Old Station Road, Bannockburn, Stirling, you ...were the owner of ..dogs namely, huskies which worried livestock, namely sheep by ..attacking and killing same and injuring others;

 

CONTRARY to the Dogs (Protection of Livestock) Act 1953, Section 1(1) and (6)."

 

Two Siberian husky dogs were involved, a male and a female. The appellant had one analogous previous conviction in 2009, for contravention of the same statutory provisions; the same female husky was involved on that occasion. The accused knew that the dogs might attack sheep if they escaped.

[2] The circumstances of the offence were as follows.

[3] On 7 March 2012, the dogs were found to be at large in a field on the farm specified in the charge at about 7am. They chased sheep there. They attacked sheep. They killed three sheep. Seven sheep were severely injured by the dogs. The injuries included neck tears, puncture wounds, a nose having been bitten off, and faces, ears and bellies having been bitten. The vulva of one of the sheep had been bitten and chewed. Many ewes who had been in lamb aborted as a result of the attack by the dogs. The farmer incurred losses in excess of £3,000 in respect of the value of the sheep, veterinary bills and removal of the carcasses.

[4] The dogs were normally kept in a run at the rear of the appellant's home in Fallin. There is a gate to the run which is normally secured by a padlock. The sheriff made the following important findings in fact in relation to the escape of the dogs:

"(9) When the dogs are in the run, the gate is normally secured by a four‑digit combination padlock

 

(10) The accused was informed that the dogs were not within the run at about 5.30 that morning when his wife was getting ready for work.

 

(11) The gate to the run was open and the padlock open and hanging on the gate mesh by the shackle.

 

(12) Only the accused and his wife know the combination number of the padlock, which was in good working order.

 

(13) There was no evidence of damage to the padlock or the gate to indicate that the security had otherwise been overcome.

 

(14) By inference from findings in fact (9), (11) and (12), it is inherently unlikely that anyone would have correctly guessed the combination and let the dogs out.

 

(15) By inference from findings in fact (9) to (14) , the accused has omitted to lock the gate the previous night as a result of which the dogs had access to the rear garden between the run and the house."

 

[5] It was evident that, having escaped, the dogs made their way to the farm either via the front of the house or via the gardens of neighbouring properties into which they could have jumped once out of their run.

[6] Regarding the appellant's wife, it is clear from the stated case that her evidence was to the effect that the first she knew of the padlock being unsecured was at 5.30am on 7 March 2012 upon which she immediately woke her husband. It was not put to her that she had unlocked the padlock after her husband had secured it the previous evening. There was no suggestion in the evidence that that was what had occurred.

 

Stated Case
[7] In the stated case, the sheriff explains that the appellant gave evidence that he had, as usual, secured the padlock the previous night. The sheriff rejected his evidence and concluded that, contrary to his usual practice, the accused had failed to lock the gate thereby allowing the dogs to escape.

[8] The sheriff found the accused guilty. He considered that the offence was one of strict liability because (i) section 1(1) was in peremptory terms, (ii) section 1(3) provided a defence that was indicative of a need for mens rea to be proved in the particular circumstances outlined in that subsection, (iii) that the defence provided by subsection (4) was also indicative of a need for mens rea to be proved but only in the limited circumstances there referred to and (iv) in these circumstances, section 1(1) fell to be interpreted as excluding any requirement for proof of mens rea. He referred to the discussion by Sir Gerald Gordon QC at paragraph 8.70 of Criminal Law 3^rd edition. He also found support in the case of Stephen v Milne 1960 SLT 276. However, even if the offence was not one of strict liability, the Crown had proved that the accused had failed to take all reasonable steps to secure the dogs and that was sufficient for conviction.

[9] The sheriff fined the accused £500. He also ordered that the accused pay a compensation order of £3,000.

[10] The sheriff also ordered destruction of the dogs, having raised that issue with parties and continued the hearing to enable the appellant's solicitor and the Crown to address him on the matter. That is, the Crown did not seek an order for destruction of the dogs. The sheriff concluded that, although the Dogs (Protection of Livestock) Act 1953 ("the 1953 Act") did not confer power to order the destruction of a dog which had worried sheep, that power could be found in what he referred to as the legislative framework of the Control of Dogs (Scotland) Act 2010 ("the 2010 Act") and section 1(4) of the Dogs Act 1906 ("the 1906 Act"). At paragraph 30 of the stated case, he explains:

"I interpret the present legislative framework as providing, in section 1 of the Dogs Act 1906, a shortcut to the determination that a dog is dangerous in the event it is proved to have chased sheep in a criminal trial which would otherwise have been determined by an application by an authorised officer of the local authority in terms of the 2010 Act scheme. It does not offend against the provisions of the 2010 Act for there to be such a shortcut where proof of a dog chasing sheep has arisen in the context of a criminal trial requiring a higher standard of proof and corroboration."

 

In rejecting a submission by the appellant's solicitor that a control order[1] should be imposed rather than an order for destruction, the sheriff appears to have considered that the imposition of such an order was also within his power although he does not explain his reasons for that conclusion. He stated that he felt that he could not distinguish between the two dogs because this was the second occasion of escape and the female dog had attacked sheep on the previous occasion which gave rise to the appellant's conviction in 2009.

 

Relevant Statutory Provisions
[11] The relevant provisions of section 1 of the 1953 Act are as follows:

" 1 Penalty where dog worries livestock on agricultural land

(1) Subject to the provisions of this section, if a dog worries livestock on any agricultural land, the owner of the dog, and, if it is in the charge of a person other than its owner that person also, shall be guilty of an offence under this Act.

(2) For the purposes of this Act worrying livestock means -

(a) attacking livestock, or

(b) chasing livestock in such a way as may reasonably be expected to cause injury or suffering to livestock or, in the case of females, abortion .......; or

(c) Being at large ( that is to say not on a lead or otherwise under close control) in a field in which there are sheep.

.......................

(3) A person shall not be guilty of an offence under this Act by reason of anything done by a dog, if at the material time the livestock are trespassing on the land in question and the dog is owned by, or the charge of, the occupier of that land or a person authorised by him, except in a case where the said person causes the dog to attack the livestock.

(4) The owner of a dog shall not be convicted of an offence under this Act in respect of the worrying of livestock by the dog if he proves that at the time the dog worried the livestock it was in the charge of some other person whom he reasonably believed to be a fit and proper person to be in charge of the dog.

...................."

 

Section 1(6) provides that a person guilty of an offence under the Act is liable, on summary conviction, to a fine. The Act makes no provision for the payment of a compensation order. Nor does it empower the sheriff to order destruction of any dog or, indeed, to make any order in relation to the dog.

[12] The Dangerous Dogs Act 1871 ("the 1871 Act") sec 2 was enacted to provide "further protection ...against dogs" and empowered any court of summary jurisdiction to order the owner of a dangerous dog to keep it under control or to destroy it and, as originally enacted, also provided that any person failing to comply with such order was liable to a financial penalty. The Dogs Act 1906 ("the 1906 Act"), a consolidating statute, made provision for circumstances where livestock was injured by dogs. In particular, section 1(4) of the 1906 Act provided that where a dog was proved to have chased sheep, it could be dealt with under section 2 of the 1871 Act as a dangerous dog.

[13] The 1871 Act was, however, repealed in its entirety by the 2010 Act which makes provision for the control of dogs. The 2010 Act introduces a scheme which is new in detail but accords with the principle enshrined in sec 2 of the 1871 Act namely that dangerous dogs need either to be properly controlled or destroyed. The 2010 Act provides for a system whereby a person authorised by the relevant local authority (an "authorised officer") may, if a dog has been out of control on more than one occasion, serve a "dog control notice" on the owner or other person who has day to day charge of the dog, provided that person is over 16 years of age[2]. The need for and content of a dog control notice being a matter which requires the exercise of judgment, it can reasonably be anticipated that the authorised officers appointed by local authorities will be persons who have expertise in assessing the behaviour of a particular dog and whether its behaviour reasonably causes concern regarding the future safety of persons or other animals in its vicinity.

[14] A dog control notice, in addition to requiring that the dog be kept under control, must require that an electronic transponder be implanted in the dog and may include other appropriate conditions[3]. An obvious example of the latter would be a requirement that the dog be muzzled and/or kept on a lead whenever in public.

[15] A sheriff is not empowered to issue a dog control notice although resort may be had to the sheriff court by the person on whom such a notice has been served, to appeal against it, or against a term of it, by way of summary application[4]. Local authorities are obliged to monitor the effectiveness of dog control notices and to enforce them. A person who fails to comply with a dog control notice commits an offence[5]. The local authority may vary or discharge a notice[6]. Further, Scottish Ministers are empowered to establish and maintain a national database of dog control notices[7].

[16] If the authorised officer considers that a dog is out of control and dangerous and that it would not be appropriate to serve a dog control notice - which, by implication, that officer must consider first - then the provisions of section 9 of the 2010 Act apply:

"9 Dangerous or unresponsive dogs

(1) This section applies where it appears to an authorised officer that, in relation to a dog which is out of control and dangerous, serving a dog control notice (or a further dog control notice) would be inappropriate.

(2) The local authority may by summary application apply to the sheriff for an order-

(a) Appointing a person to undertake the dog's destruction, and

(b) Requiring that it be delivered up for that purpose.

(3) If the sheriff declines to make an order under subsection (2), the case may, if the sheriff thinks fit, be remitted to the local authority for a dog control notice ( or a further dog control notice) to be served.

(4) In so remitting the case, the sheriff is to direct that the dog control notice include (in place of any that might be specified by virtue of section 2(4)) such steps to be taken by P, as are set out in the direction.

(5) Where an order is made under subsection (2) the sheriff may (under this subsection) make a further order disqualifying the dog's owner from owning or keeping a dog during such period as the sheriff thinks fit.

(6) The decision of the sheriff principal on any appeal against

(a) an order under subsection (2) or (5),

(b) a remittal under subsection (3),

(c) a direction under subsection (4), or

(d) a declinature to make such an order or remittal is final.......".

[17] Section 9 then deals with the nature and extent of the powers of the sheriff principal in any such appeal.

[18] Schedule 1 of the 2010 Act provides:

"Dogs Act 1906 (c.32)

1. In section 1(4) of the Dogs Act 1906 (dealing with a dog which has injured cattle or poultry or has chased sheep), for the words "section two of the Dogs Act 1871," there is substituted "section 9 of the Control of Dogs (Scotland) Act 2009"."

"2009" should have been corrected. It is, plainly, meant to read "2010".

[19] Section 1(4) of the 1906 Act as amended by the 2010 Act and after the necessary correction provides:

"1. - Liability of owner of dog for injury to cattle.

............

(4) Where a dog is proved to have injured cattle or poultry or chased sheep, it may be dealt with under section 9 of the Control of Dogs (Scotland) Act 2010, as a dangerous dog."

 

The 1906 Act did not and does not provide for any defence; if a dog chased sheep then it was and is to be deemed dangerous. It is, for instance, of no moment that the dog may, in all other respects, be docile or that on the particular occasion, its lead snapped; it will still be regarded, for the purposes of the 2010 Act (and, formerly, for the purposes of the 1871 Act) as dangerous.

[20] Finally, section 249 of the Criminal Procedure (Scotland) Act empowers a sheriff to impose, instead of or in addition to dealing with a person convicted of an offence in any other way, a compensation order in respect of loss or damage caused by the commission of that offence. Where the accused has been prosecuted at summary level, the order must not exceed £10,000.

 

The Appeal
[21] The appellant appealed against conviction and sentence.

 

Appeal against conviction : submissions for the appellant

[22] In relation to conviction, the grounds are (a) that section 1(1) of the 1953 Act does not provide for an offence of strict liability; and (b) that, on the evidence, the sheriff was not, in any event, entitled to conclude that the appellant had failed to take all reasonable steps to secure the dogs.

[23] Mr Collins, for the appellant, submitted that the 1953 Act did not create an offence of strict liability. There was no reference to strict liability in the title to section 1 as could be found in other legislation such as the Animals Act 1971 sec 1, the Animals (Scotland) Act 1987 sec 1, and the Contempt of Court Act 1981 sec 1. He also referred to the Christmas Day and New Year's Day Trading Act 2007 where, although the provision creating the statutory offence was silent on the matter (sec 4), it was clear from the terms of section 6, which provided for a defence of "due diligence" that the offence was not one of strict liability. There were no similar provisions in the 1953 Act. That being so, resort required to be had to the principles discussed in Bennion: Statutory Interpretation 5^th edition at p 1078, and GWH v Griffiths 2009 SCCR 312 at paragraphs 14 and 21. That is, the question was whether the Act gave rise to a necessary inference of strict liability. He also referred to Sweet v Parsley [1970] AC AC (HL) 132.

[24] Mr Collins submitted that the creation of the defences available in terms of section 1(3) and 1(4) did not support the inference of strict liability. Whilst he accepted that the creation of a particular defence can, in certain circumstances, support the drawing of an inference of strict liability, the defence provided by subsection (3) was not really concerned with mental state and subsection (4) would not affect circumstances where the dog was not in the charge of another person. It was not to be inferred from that limited defence that an offence of strict liability had been created.

[25] Separately, Mr Collins submitted that if the offence was not one of strict liability, it was not open to the sheriff to convict because he had not excluded the possibility of the appellant's wife, who also knew the padlock combination, opening it after the appellant had secured it for the night from the equation.

 

Appeal against conviction: submissions for the Crown
[26] For the Crown the advocate depute submitted that whilst it was to be presumed that every offence required mens rea, strict liability could be provided for by a statute expressly or impliedly. In this case it was to be implied. There were sound policy reasons for this measure. The problem of dogs worrying sheep had been a problem for centuries. The statute was clear in its terms. That strict liability was intended by Parliament was clear. That was demonstrated by the fact that two defences were provided for. It was significant that they distinguished between the owner and another person; the language was sufficient to allow for a situation where the livestock trespass on the owner's land. And subsection 4 made it plain that where an owner, for instance, puts dogs into kennels whilst they are away, then they have an answer. There would have been no need to make any such provision if section 1(1) did not create an offence of strict liability .

[27] The advocate depute referred to the case of R v Bezzina [1994] 1WLR1057 at p 1062B - C which was directly in point and supported his submission. The sheriff was, accordingly, correct to reject the submission that there was a general due diligence offence open to the appellant. There was also a need to consider the mischief at which the legislation was directed and the nature of the public interest which Parliament was seeking to protect; doing so confirmed that an offence of strict liability was what was intended; protection of livestock was an important matter.

[28] Separately, if such a defence was to be implied as being available, it was not made out on the evidence. The sheriff was entitled to reject the appellant's contention that he had properly secured the gate.

 

Appeal against sentence: competency of the order for destruction of the dogs: submissions for the appellant

[29] We were advised that the male dog has, since the case concluded before the sheriff, died and that the female dog had, however, survived and the issue of whether or not the order for the destruction of the dogs was competent still, accordingly, requires to be determined. Mr Collins submitted that the sheriff did not have power to impose the order. He referred to section 1(4) of the 1906 Act, section 2 of the 1871 Act, and section 1 and Sch 1 of the 2010 Act. The effect of these provisions was that if a dog had chased sheep then it was "dangerous" within the meaning of section 9 of the 2010 Act but that was all. The sheriff was not thereby empowered, in a criminal prosecution under the 1953 Act, where the only penalty provided for was a financial one, to order destruction of a dog. On the contrary, before such an order could be granted, the procedure set out in the 2010 Act required to be applied. If there were any doubt about the limitation of the sheriff's powers, the restriction of the appeal route under section 9 to the civil jurisdiction of the sheriff principal, confirmed that that was the correct interpretation. Parliament could not be said to have had the outcome of a criminal trial in mind.

 

Competency of the order for destruction of the dogs: submissions for the Crown
[30] Having considered the discussion on the submissions made on behalf of the appellant, the advocate depute conceded that, on a proper consideration of the relevant legislation, it could not be said that the sheriff had power to order destruction of dogs.

 

Compensation order: submissions for the appellant
[31] Regarding the compensation order imposed, whilst Mr Collins accepted that it was competent to make such an order, he submitted that it was, in all the circumstances, excessive. He referred to the offence having been one of omission rather than commission, to the appellant's financial circumstances as recorded by the sheriff and to the fact that he also required to pay a fine. He also, however, accepted that the appellant would be liable under the civil law for all damage caused by the dogs: see Animals (Scotland) Act 1987 sec 1.

 

Discussion
Strict liability
[32] The public interest in ensuring that livestock being reared by farmers are protected and the risk of dogs injuring or killing such livestock, have been concerns of Parliament for many years. The nature of the public interest is obvious. It is not simply a matter of the pecuniary interests of the farmer who owns the livestock which are "worried". Livestock such as, in this case, sheep represent a food supply and the need to ensure the availability of food to feed the population is of fundamental concern in any society. In 1906, Parliament legislated to enable a court of summary jurisdiction to direct that a dog which injured cattle or poultry or chased sheep be destroyed; if a dog did so then it was deemed dangerous and until very recently, the powers available to such a court under and in terms of sec 2 of the 1871 Act could be used to deal with it. Neither the 1871 nor 1906 Acts provided, however, for the prosecution of the owner or person in charge of the dog in such circumstances albeit that the 1906 Act provided that the owner would be liable in damages for any injury caused to cattle by a dog[8] and also provided that it would be presumed that the person who occupied the house where the dog was kept was the owner[9].

[33] Criminal liability was provided for by section 1 of the 1953 Act, legislation which was enacted to provide "for the punishment of persons whose dogs worry livestock on agricultural land; and for purposes connected with the matter aforesaid." The mischief which the 1953 Act sought to address was, accordingly, the worrying of livestock on farms by dogs and the means by which that mischief was addressed in that legislation was to do what had not been achieved in either the 1871 Act or in the 1906 Act, namely to hold the owner and any other person in charge of the dog at the relevant time, criminally liable. It seems clear that the problem of dogs worrying sheep and thus injuring or killing livestock, persisted and it was plainly considered that the powers available under the earlier legislation were not of themselves sufficient to deal with it. It is against this background that the provisions of sec 1 of the 1953 Act require to be considered.

[34] We are satisfied that sec 1(1) of the 1953 Act created an offence of strict liability. We, of course, have regard to the principle that it is to be assumed that a statutory offence requires proof of mens rea unless the contrary intention can be ascertained but we have not found it difficult to conclude that Parliament had such a contrary intention in this case. The circumstances here are first, that the language is clear and unambiguous; it reads as being demonstrative of an intention to hold (a) the owner of the dog, and (b) any person in charge of the dog at the relevant time, criminally liable if the dog worries livestock. The trigger for liability is not anything done or omitted to be done by either person but the actions of the dog; it seems clear that, given the need to make effective statutory provision, in the public interest, for the protection of livestock it was considered to be fair to require that the owner of a dog and anyone in charge of a dog ensure that it does not worry livestock on pain of criminal liability if the dog does so.

[35] Secondly, the intention to create an offence of strict liability is confirmed when regard is had to sec 1(3) and 1(4). It is recognised that there will be occasions when it would be unjust to hold the owner and/or person in charge of the dog strictly liable. Those are (a) where the livestock are trespassing unless it is shown that one or both of those persons intended the dog to attack that livestock, and (b) where the dog was, at the relevant time, in the charge of a person who the owner reasonably believed to be a fit and proper person to be in charge of the dog. Thus, if the livestock are trespassing and they are attacked by a dog, the owner will escape strict liability if he did not cause the dog to do so. Similarly, a person in charge of the dog other than the owner who did not cause the attack will escape liability. When, however, section 1(2) and 1(3) of the 1953 Act are read together, it is clear that neither would escape strict liability - even if the livestock are trespassing - if a dog worries sheep not by attacking them but by chasing them in a way which is likely to cause injury, suffering or abortion or by being at large in a field. The defence available where livestock are trespassing is, accordingly, limited and depending on what view is taken of the use of the word "cause" in section 1(3) may still exclude the need for mens rea. If, however, the need for mens rea is to be taken as signified, we cannot see that there would have been any need for this provision if section 1(1) was not an offence of strict liability.

[36] Turning to section 1(4), one set of circumstances is identified where proof of the offence requires addressing the question of the accused's state of mind at the relevant time. That is to be done objectively; if the owner was reasonably entitled to believe that he had left the dog in charge of a fit and proper person, he will escape what would otherwise be strict liability. As the advocate depute observed, perhaps the paradigm case would be where the owner is on holiday and has left the dog in kennels. Again, though, there would have been no need for this provision were it not the case that section 1(1) had created an offence of strict liability.

[37] We draw further support for our conclusion from two authorities. First, the case of R v Bezzina where, when addressing the issue of whether similar provisions in the Dangerous Dogs Act 1991 created an offence of strict liability and the Court of Appeal found support for their conclusion of strict liability in the existence in the same statute of provisions which afforded the owner a defence where he had placed the dog in charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it. Secondly, in the case of Stephen v Milne 1960 SLT 276, where the accused was prosecuted under section 1 of the 1953 Act, the essential facts were that the accused owned a dog and that that dog had chased sheep. There was no finding that that was what the owner intended the dog to do or that he was negligent in his control of the dog or of any other factor indicative of mens rea on his part. Whilst the point at issue on appeal was whether the description of the dog's behaviour amounted to chasing within the meaning of the statute, the Lord Justice General stated, at p 278:

"The findings in fact appear to me amply to justify the view that an offence was committed here."

 

Lords Carmont and Sorn agreed. None of them raised any concern that that meant that the court was confirming a conviction which had clearly been on the basis that the accused was to be held strictly liable if his dog had been chasing sheep.

 

Whether the sheriff was entitled to conclude that the appellant had failed to take all reasonable steps to secure the dogs
[38] In the event, this matter does not arise but we would have rejected the submission that the sheriff was not entitled to find as he did. He did not believe the appellant when he said that he had secured the padlock and there were ample findings in fact on which he was entitled to rely when reaching that conclusion, as detailed above. We reject the submission that he required expressly to exclude the possibility that his wife could have opened the padlock after he secured it as that was never put in issue in evidence.

 

Order for destruction
[39] The concession by the Crown was well made. The relevant statutory provisions cannot be interpreted in such a way as to confer on a sheriff the power to order the destruction of a dog in a prosecution of its owner (or of the person in charge of it) under section 1 of the 1953 Act. The sanction for a contravention of that provision is a fine[10] and only a fine. The Act does address the question of whether there are circumstances in which the dog should be destroyed; that will, however, only arise where it is alleged that a dog has worried livestock but neither the owner nor the person in charge of it are identified. Then, the powers conferred on a chief officer of police under section 3(4) - (10) of the 1906 Act, which include the power to destroy the dog, are available. There is no provision empowering the criminal court where a person has been successfully prosecuted under section 1, to impose, instead of, or in addition to, a fine, an order for destruction of the dog.

[40] We accept that it may be that in a prosecution under section 1 of the 1953 the need to consider whether steps require to be taken in respect of the dog will be identified. It may have been proved, in such a prosecution, that a dog chased cattle, poultry or, as in the present case, sheep and that dog is then - in terms of section 1(4) of the 1906 Act ( as amended by Sch1 of the 2010 Act) - deemed dangerous for the purposes of section 9 of the 2010 Act. To that extent there is, as the sheriff observed, a shortcut provided. But the shortcut goes no further than that. It does not allow the sheriff, in sentencing a person for a contravention of section 1 of the 1953 Act, to order that the dog be destroyed. Once the dog has been deemed dangerous - a matter which we would expect to be intimated to the relevant local authority officer - it will then be for that officer to consider whether it would be appropriate to serve a dog control notice. If he does not consider that would be the appropriate step to take, he may apply to the sheriff by way of summary application - a civil procedure - for an order that the dog be destroyed. It is then and only then and only in that context that the sheriff has power to make such an order.

[41] We will, accordingly, quash the order for destruction of the dog.

 

Compensation order
[42] We are not satisfied that the order imposed was excessive. There was evidence before the sheriff, which he accepted, that the farmer's losses amounted to £3,000. As matters turned out, the farmer's insurance did not cover her for these losses. It was accepted by Mr Collins that the appellant would not have been able to resist liability for that sum in a civil claim. The sheriff was entitled to make this award.

[43] In these circumstances we answer the questions in the stated case as follows:

Q.1 Yes.

Q.2 and 3 Superseded.

Q.4 Yes, but superseded.

Q.5 Yes.

Q. 6 Yes

Q. 7 No.

Q.8 No.