Gunther v Transport Accident Commission
[2020] VCC 488
•24 April 2020, (Oral judgment)
GUN
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-04358
| JESSICA GUNTHER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-23 April 2020 | |
DATE OF JUDGMENT: | 24 April 2020, (Oral judgment) | |
CASE MAY BE CITED AS: | Gunther v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 488 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – motor vehicle accident – Chronic fatigue
syndrome – Pre-existing migraine – Ehlers-Danlos Syndrome – Pre-
existing spine pain – Pre-existing sleep problems
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Ms S Lean | Slater and Gordon Lawyers |
| For the Defendant | Ms R Annesley QC with Ms A Bannon | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Jessica Gunther was involved in a T-bone motor vehicle accident on 4 June 2016. As a result of that 2016 accident, she alleges she sustained injury to her cervical spine and also to her right shoulder. She argues that each of these injuries constitute a serious injury, within the meaning of s.93 of the Transport Accident Act.
2 It became obvious through the running of the case, and particularly after final submissions, that it is really the plaintiff's spinal injury that is the focus of her case.[1] The defendant agreed that Ms Gunther would be able to establish that she had sustained a whiplash-type neck injury. Both parties agreed that nothing further needed to be done to identify the injury. However, there seems agreement that at the time of the accident there was an acute prolapse at the C5/6 level, otherwise the injury could best be described as a muscular ligamentous strain.
[1]Transcript (“T”) 3
3 Essentially, the defendant argued that while it could be accepted Ms Gunther had sustained a whiplash neck injury in compensable circumstances, they disputed that the consequences of that injury could be considered serious. In shorthand terms, senior counsel for the defendant argued that this was a “range case”.
4 The defendant made a supplementary submission that the plaintiff's current condition and consequences were entangled by reason of longstanding, pre-existing conditions, which continue to affect her life today. Those conditions were said to be pre-existing migraine, Ehlers-Danlos Syndrome (“EDS”), a condition affecting muscle laxity, pre-existing spine pain, pre-existing sleep problems and problems arising from other unrelated motor vehicle accidents.
5 The defendant argued that Ms Gunther was unable to disentangle her current alleged consequences from those caused by these other conditions. At the outset of the case, the defendant did not propose to allege any adverse credit findings be made against Ms Gunther. For matters which I will come to, credit became an issue by reason of the way Ms Gunther gave evidence on one occasion.
6 Those matters being set out, the following issues arise for determination. First, what is the injury that Ms Gunther sustained in the 2016 accident. That can be answered easily given the agreement between the parties that it was a whiplash injury to the neck. Secondly, what are the consequences of that injury, stripping aside the pre-existing conditions and their current effects.
7 And then, thirdly, after isolating the consequences of the neck injury flowing from the 2016 accident, can those consequences be considered serious in the sense of being more than significant or marked. Given that there is such agreement over the injury, and the plaintiff abandoned reliance on any right shoulder injury at the conclusion of the case, attention is focused solely on the neck injury.
8 The second issue for determination by the court, whether the consequences alleged to flow from the neck injury can be separated from any pre-existing conditions and the extant consequences, then arises. I will deal with this question by categorising each of the various conditions which are said to impact on the current consequences the plaintiff claims arise from the 2016 accident.
(a) Chronic fatigue syndrome (“CFS”).
9 It was suggested, in cross-examination, that Ms Gunther had suffered from CFS since 20144[2] well prior to the 2016 accident. Ms Gunther gave evidence that the CFS resolved completely in early 2015.[3] This evidence, given in cross-examination, is consistent with her affidavit and consistent with the records of Dr Fong, a specialist engaged to treat her CFS condition.
[2]T18, L5
[3]T 17, L 28
10 It is also consistent with the records of Dr O’Callaghan, who she was referred to by Dr Fong for treatment of Ehler Danlos Syndrome (“EDS”). She remained under his immediate care and then as an outpatient of the Austin Hospital until 2018. His records and those of the hospital that I have had access to do not reveal ongoing chronic fatigue symptoms after the time nominated by Ms Gunther. Given those matters, I find that symptoms such as nausea, dizziness, fatigue associated with CFS in 2014 had ceased well prior to the 2016 accident.
(b) Pre-existing migraine.
11 It was suggested that Ms Gunther had a longstanding past medical history of migraine, that such migraine continued at the time of the 2016 accident and was extant at trial. The starting point of this submission was made primarily on the basis of an admission in 2004 to the Box Hill Hospital.[4] Ms Gunther did concede, appropriately in cross-examination, that she may have given a history to the Box Hill Hospital of three migraines in two years prior to 2004.[5]
[4]Clinical notes of Surrey Hills Medical Centre including Austin Health and Dr Chis O’Callaghan, at Defendant’s Court Book (“DCB”) 64
[5]T47, L20
12 All this occurred when she was 14 years of age, some 16 years prior to this trial and 12 years prior to the relevant 2016 accident. It is of extremely limited use in illuminating what her condition was with respect to the migraines in the decade prior to the motor vehicle accident. I find the defendant's argument is not supported when reference is had to all of the materials.
13 Relevantly, Dr O’Callaghan notes that in fact there was a past medical history of very few episodes of migraine.[6] Her treating doctor notes that It was not a feature of her presentations prior to the motor vehicle accident.[7] The history of the treating doctor is especially important because he has been a long-term treating doctor both prior to and after the motor vehicle accident of 2016.
[6]Clinical notes of Surrey Hills Medical Centre including Austin Health and Chis O’Callaghan, at DCB 65
[7]Clinical notes of Dr Mark Sweet dated 19 June 2019, at Plaintiff’s Court Book (“PCB”) 50
14 Further, the history to Dr Cook, neurologist, describes low frequency past medical history of migraine.[8] It is also consistent with her affidavit.[9] It was put that Ms Gunther had been on Propranolol for migraine prior to the accident, and this was good evidence of ongoing migraine problems in the immediate years prior to the 2016 accident. This submission was made on the basis of the Austin Hospital records in late 2014 and mid-2015.[10]
[8]Report of Professor Mark Cook dated 28 July 2018, at PCB 112
[9]Affidavit of the Plaintiff sworn 30 November 2018, paragraph [28], at PCB 14
[10]Clinical notes of Clinical Notes of Surrey Hills Medical Centre including Austin Health and Chris O’Callaghan, at DCB 49 – 52
15 Those records note increasing doses of Propranolol. They were prescribed under the hand of Dr O’Callaghan, he was treating her for her EDS symptoms and orthostatic intolerance problems. In cross-examination, Ms Gunther stated that she was not taking migraine medication prior to the motor vehicle accident.[11] When she was pressed on this issue,[12] she gave evidence that the Propranolol was for her heart rate.[13]
[11]T89, L26
[12]T77
[13]T78, L4
16 I interpolate that the Propranolol prescriptions by Dr O’Callaghan and the Austin Hospital seemed to cease by 2015 well prior to the 2016 accident. When regard is had to the notes of Dr O’Callaghan and the Austin Hospital, I would prefer Ms Gunther's explanation. I do so because it seems in the full context of those notes, that this was the reason why Dr O’Callaghan continued to prescribe Propranolol. That is, to manage her EDS and orthostatic condition, rather than it being prescribed for migraine.
17 I therefore find that she was not taking any migraine-specific medication in the years immediately prior to the 2016 accident. Having set out the above, I note that this is to be contrasted with the frequency and intensity of her migraines post the 2016 accident. This was said to be one to two times per week, and they were much more severe than had ever occurred before.[14]
[14]Affidavit of the Plaintiff sworn 30 November 2018, paragraph [14], at PCB 14
18 Such migraines became apparent almost immediately after the motor vehicle accident.[15] The long-term physiotherapist Mr McGregor noted in a record of 12 September 2016, 'Her headaches were daily.'[16] This is good, contemporaneous recording. This situation continued in the following years.[17]
[15]Report of Dr Mark Sweet dated 5 November 2016, consultation of 25 October 2016, at PCB 42.
[16]Report of Mr James McGregor dated 15 October 2016, at PCB 73
[17]Report of Dr Mark Sweet dated 20 November 2019, consultation of 5 September 2017, at PCB 46. See also report of Mr James McGregor dated 15 October 2016, at PCB 73
19 Her condition was such that he referred her to a neurologist, Dr Gerraty, who saw her in November 2017.[18] Dr Gerraty took a history of ongoing migraine and headache and gave a prescription for Propranolol. This was undoubtedly for migraine rather than the underlying EDS condition, given his referral was for migraine investigation and clearly within his area of medical expertise.
[18]Report of Dr Mark Sweet dated 20 November 2019, letter from Dr Richard Gerraty dated 15 November 2017, at PCB 62
20 Within a month Dr Gerraty had added Topamax, given the severity of the migraines. Professor Cook, a medico-legal neurologist, took a history of frequent migraine headache in mid-2018, which contrasted with the past medical history he took of low-frequency migraine, perhaps every few years.[19] That situation persists to the present day, I find, as reported to Mr Thomas[20], also where she described one to two migraines per week which affect her for one to two days at a time.[21]
[19]Report of Professor Mark Cook dated 28 July 2018, at PCB 112
[20]Report of Dr Clayton Thomas dated 2 March 2020, at PCB 153
[21]Affidavit of the Plaintiff sworn 30 November 2018, at PCB 14. See also T49, L17
21 Having set those matters of history out, I find that prior to the motor vehicle accident that she had infrequent migraines, at a frequency of perhaps one every few years. This is consistent with Professor Cook and the Plaintiff’s evidence which I accept and in accordance with the contemporaneous records of her physiotherapist and treating doctor whose evidence I play great store in, being treating practitioners. I find that after the 2016 accident and caused by it, she has suffered from migraines at the rate she has given evidence about, being one to two times per week on average which cause significant symptoms such as pain, aura and dizziness.
22 I find consistently with the reports of Dr Gerraty and Dr Sweet that she requires medication for these migraines as set out in her affidavit; being Propranolol, Topiramate, Imigran, Maxalt, Nexium and Ondansetron.[22] It was suggested in cross-examination that the frequency of the migraines was not as put by Ms Gunther.[23] This attack was mounted on the basis of sick-leave records.[24]
[22]Further Affidavit of the Plaintiff sworn 27 November 2019, paragraph [8], at PCB 22
[23]T50
[24]Plaintiff’s Sick Leave Print Out, at DCB 77
23 It was put that they and the treating doctor notes of sick leave certificates given did not support Ms Gunther's allegation of 15 to 20 days off work each year by reason of migraine, as had been recorded by Dr Firestone[25] and accepted as accurate by Ms Gunther.[26] The defendant tendered a chronology titled, 'Plaintiff's sick and carer's leave' as Exhibit D2. Those records show sick leave in 2017 of 14.9 days, and 2018 of 14.5 days and in 2019 of 15.5 sick-leave days.
[25]Report of Dr Andrew Firestone dated 6 March 2020, at DCB 25
[26]T50, L2
24 On some of those days her treating doctor had not noted migraine as the reason for the absence and, furthermore, some leave was taken with no explanation at all. While at face value there is a discrepancy, Ms Gunther explained that on occasion she took an annual leave day to cover her absence or that the migraine occurred on her day working from home, such that she did not put in a medical certificate. She explained that she only received 15 days' sick leave per year.
25 I accept her evidence. It is understandable in the context of a young worker cognisant of the scrutiny her employer might pay to an unusual number of sick days being taken, that she would seek to minimise them. I also note that she only gets 15 days' sick leave per year, and so has to use annual leave after those days are exhausted. Such leave is not recorded on the sick leave record tendered. I do not accept the defendant's submission on this point.
(c) Ehlers-Danlos Syndrome, EDS.
26 It was put that Ms Gunther's EDS existed before the motor vehicle accident and continues until today and has ongoing consequences for her which limit her recreational and social pursuits. To some extent that is accepted between the parties. There is no doubt that she continues to suffer from EDS, however, Ms Gunther was at pains to point out that she managed her condition and suffered no symptoms from it save for the requirement to take a medication just prior to each sporting exercise she performed such as gym sessions or netball.
27 It was made clear by Ms Gunther that since her diagnosis in 2014 and treatment by Dr O’Callaghan that her condition has been well controlled. The records tendered do tend to show initial treatment of some frequency in 2014 to late 2015, but thereafter there is very little. Ms Gunther states that she was attending as an outpatient only, and was fully discharged for EDS treatment in 2018. She denied any ongoing issues with muscle pain, pins and needles, and weakness.
28 She did admit to use medication just prior to sport. There is no medical evidence which contradicts the plaintiff's position. Consequently, and given my findings as to the use of the medication Propranolol set out earlier, I find Ms Gunther suffers from EDS and has done so since before the motor vehicle accident in 2016. But that it has no ongoing pain or muscle weakness consequences necessitating modification to her work or recreational pursuits.
(d) Pre-existing spine pain.
29 It was put that Ms Gunther had longstanding spinal pain which pre-existed the 2016 accident and which continues to trouble her to the same or to a similar extent now. Her history of pre-existing spine pain is found in numerous places. First, in consultations with treating doctors in 2012. It was noted specifically in the record for 20 December 2012 that there was, 'chronic back pain'.[27]
[27]Clinical note of Dr Carrie Lee dated 20 December 2012, at DCB 95
30 There was then a motor vehicle accident in 2013 which was diagnosed as whiplash of the neck, and she was referred for physiotherapy. And on 3 May 2016, a referral noting chronic thoracic and cervical pain.[28] Ms Gunther freely admitted she could not recall some of those attendances and accepted the veracity of those notes.
[28]Chronic Conditions Management Plan from Dr Mark Sweet to Mr James McGregor dated 3 May 2016, at DCB 38
31 She also noted that she had problems with the curvature of her spine in her early 20s, but that this had resolved well prior to the 2016 accident.[29] She was forthcoming and helpful during this questioning, I found it very useful to watch her give evidence. I consider she gave honest evidence on this point, and I accept it. While admitting these matters, she gave evidence that the spinal issue such as they were, resolved by mid-2016 when she bought a new bed and pillow.[30]
[29]T24, L12
[30]T40, L20 - 25
32 This evidence is supported by a note of her treating doctor that her attention was brought to, dated 13 April 2016, during the course of her examination.[31] None of the treating contemporaneous practitioners record a history of longstanding ongoing chronic spinal pain prior to the accident, nor did there seem to be medication prescribed for that alleged condition in the immediate years prior to the 2016 accident.
[31]T84, L14 - 26
33 In fact, while she was referred for X-ray after the 2012 treating doctor consultations, there does not seem to be a referral for physiotherapy or specialist consultation. No regime of medication can be pointed to which supports the suggestion of ongoing spinal problems and pain. There are no particular treatments by Mr McGregor that he refers to during this relevant period prior to the 2016 accident.
34 In those circumstances I find consistent with Ms Gunther's evidence that any spine pain she had had was sporadic, self-limiting, and had resolved well prior to the motor vehicle accident in 2016. This is to be contrasted with her pain consequences after the 2016 accident.[32] She states, 'This pain is constant' and being in the range of 3 to 6 out of 10 with 10 being the worst.[33]
[32]Further Affidavit of the Plaintiff sworn 27 November 2019, at PCB 22. See also Affidavit of the Plaintiff sworn 30 November 2018, paragraph [23 – 25], at PCB 13
[33]Report of Ms Sharon Marcus dated 24 October 2019, PCB 39
35 The treating doctor considers that pain condition chronic;[34] so did Professor Davies;[35] Mr Moran,[36] and Professor Cook took that same history of constant unremitting pain.[37] She takes medication for this pain, amitriptyline also known as Endep.[38] She has done so for over three and a half years with no evidence that this situation will change.
[34]Report of Dr Mark Sweet dated 20 November 2019, at DCB 51
[35]Report of Professor Gavin Davis dated 9 March 2019, at PCB 97
[36]Report of Mr Peter Moran dated 19 February 2020, at PCB 128
[37]Report of Professor Mark Cook dated 28 July 2018, at PCB 111
[38]Further Affidavit of the Plaintiff sworn 27 November 2019, paragraph [8], at PCB 22. See also T78, L9
36 She has had various treatments from physiotherapy with Mr McGregor, gym-strengthening with pilates regularly and injections.[39] None have changed her situation materially. Dr Doig considers that there was no inconsistency between her complaints and the radiology and examination findings. Accepting Ms Gunther's evidence on this matter in combination with the medical material which speaks almost unanimously of the extant pain consequences of the 2016 accident, I find that this is a significant effect of the cervical spine injury.
[39]Letter to Professor Gavin Davis dated 14 May 2019, at PCB 69
(e) Pre-existing sleep problems.
37 It was also put that prior to the 2016 accident Ms Gunther had longstanding sleep problems. These were put as difficulty in falling asleep and constant waking.[40] She freely admitted to having a sleep disorder prior to the 2016 accident, and that she had difficulty falling asleep. She noted that she had to have a regimented sleep routine to allow her to sleep.
[40]T42, L2. See also T43, L255 – 29 and T53, L11
38 This is consistent with the notes of Dr O’Callaghan,[41] to some extent, but he does note also that in 2014 she had fragmented sleep and vivid dreams. Ms Gunther's evidence, however, was that her sleep pattern had changed since the 2016 accident. She gave evidence that after the 2016 accident she had more interrupted sleep and nightmares.[42]
[41]Clinical notes of Dr Chris O’Callaghan dated 30 April 2014, at PCB 53
[42]T57, L10 – 18. See also Affidavit of the Plaintiff sworn 30 November 2018, paragraph [29], at PCB 15
39 I prefer Ms Gunther's evidence as it is consistent with her long-term treating doctor's notes of 2 October 2017.[43] She was also trialled on medication for it, and it is a history also recorded by Dr Thomas.[44] However, he does make the point that the nightmares were related to various accidents that she had had. Weighing that evidence, I find that Ms Gunther does have a worsened sleep pattern by reason of the 2016 accident, in that she has more interrupted sleep.
[43]Report of Dr Mark Sweet dated 20 November 2019 ,clinical notes of Dr Mark Sweet, at PCB 47
[44]Report of Dr Clayton Thomas dated 2 March 2020, at PCB 153
40 However, I do not find that the nightmares can be attributed to the 2016 accident alone, as the evidence is not in a state where I can strip aside the effect of other causes to the extent necessary to make that finding.
41 Turning away from pre-existing consequences and causes and turning specifically to other consequences that the plaintiff relies on. While I have already made some findings as to the consequences of the 2016 accident, there are a number of other consequences relied upon by Ms Gunther which arise in a more discreet way. In that they are not allegedly tarnished by a pre-existing condition. I will set these out briefly below.
42 Ms Gunther alleged that by reason of the 2016 accident her work opportunities had been diminished. This was said to arise by reason of her having to take numerous sick days, a practice which was not viewed favourably by her employer when it came time to promote people.[45] It was made clear by Mr Purcell SC, who appeared with Ms Lean, that Ms Gunther did not claim she had lost more than 40 per cent of her potential earning income and did not rely on what can loosely be termed pecuniary loss consequences.
[45]Further Affidavit of the Plaintiff sworn 27 November 2019, paragraph 20, at PCB 24
43 This left the issue of whether her work prospects had been diminished by the 2016 accident. In cross-examination, Ms Gunther was pressed about this.[46] I found it very useful to watch Ms Gunther give evidence about this matter. Ms Annesley QC, who appeared with Ms Bannon for the defendant, pressed her repeatedly as to whether she was exaggerating the amount of time taken off by reason of her migraines, such that it had a negative impact on her work prospects.
[46]T66
44 During the course of this cross-examination, she was asked to name the managers she was required to tell. The plaintiff was uncertain in her answers. She was pressed further by Ms Annesley QC; she remained uncertain. It gave me the impression that she was not being candid in her evidence. Then, despite being warned specifically by me twice during the hearing to that point, not to have recourse to any material, Ms Gunther made an attempt to obtain details for the relevant manager from her mobile phone. This could be seen clearly in the vision. I asked her not to have regard to her mobile phone. She then immediately remembered or gave the name of the particular manager.
45 Overall, the manner in which she answered defendant counsel's questions, her demeanour in the course of answering those questions and her direct disobedience of instructions given by the court as to what material she was limited to looking at, left me with the distinct impression that her evidence on this point could not be believed. I decline to accept her evidence as to the impact the 2016 accident has allegedly had on her work prospects.
46 I am fortified in this view by her acceptance in cross-examination of the fact that since the time of the 2016 accident she had been able to move jobs successfully, improve her job ranking within the public service, obtain progressive increases in salary, and obtain secondment on higher duties. This suggests quite clearly that she is not really held back in work terms by the 2016 accident.
47 Next it was put that the 2016 accident had had an effect on her main recreational activity, being netball. Ms Gunther had been a long-term netball player at a relatively high standard. She gave evidence in re-examination that in August 2016, prior to the 2016 accident, she had played in the MCC Premier 1 netball competition. This was the top division at the State Netball Centre. It required try-outs and regular training. While it was not a professional league, it was certainly highly competitive.
48 At this stage Ms Gunther was 26 years of age and might be considered in the prime of her athletic life. She gave evidence that in the one year prior to the 2016 accident she was playing three times per week plus doing training. The evidence now is that she plays in a social league with North Heidelberg. The evidence shows that she played only six games in 2019.[47]
[47]Northern Football Netball League Season Stats, at PCB 70
49 She describes this socially as a chance to get out and socialise. 'It is not overly competitive', she said. I consider the disparity between her netball pursuits prior to the 2016 accident and after it to be evidence of a significant degradation in her physical abilities. I consider this to be a very significant impact of the 2016 accident.
50 Turning to the issue of permanency. It was suggested by the defendant that Ms Gunther's application was premature, in that she was recently referred for a pain management course and that she intended to pursue it. It was submitted that in the circumstances the application should not proceed prior to the pain management course, or that if it did, the court should find that Ms Gunther's condition was not stable.
51 At the beginning of the matter I rejected that argument. I consider that Ms Gunther has lived with her condition for now three and a half years. She has had treatment and medication and continues with a long-term physiotherapy program. These modalities have left her in a position which is in my view constant and permanent. As Ms Gunther described in her evidence, a pain management course will simply teach her strategies to cope with that permanent condition.
52 It is my finding that her condition has stabilised and is permanent.
53 In considering what Ms Gunther has lost, it is also necessary to examine what she has retained the ability to do. The defendant pointed to the fact that she has always remained in fulltime employment, progressed within the ranks of her employment satisfactorily and has returned to netball.
54 It was pointed out that she has a range of friends and can perform all activities of daily living. It was also noted by the defendant that she lived alone, was obviously self-sufficient and walked to work every day. She still regularly went to the gym. I have taken those matters into account in the balancing exercise.
55 It must also be remembered that Ms Gunther was at a young age when she sustained this injury in 2016. This is a significant factor in the assessment. She has lived with that condition and appears to have done remarkably well to hold down a fulltime permanent job and progress as she has done. She is no doubt a stoical person who has pressed on as best she can. She ought be given credit for this.
56 In synthesising the above factors, I find that Ms Gunther has sustained a serious injury which in summation can be found by reference to the following factors:
(a) the constant serious migraine headaches occurring one to two times per week which are accompanied by pain or dizziness and a substantial medication regime, and which requires regular time off work;
(b) the worsening of her sleep pattern, being constant sleep interruptions and waking;
(c) the onset of neck and right-shoulder girdle pain which is constant, has required ongoing physical therapy, requires medication and has resulted in a referral for a pain management course;
(d) the impact on her major recreational pursuit of competitive netball;
(e) the age at which Ms Gunther was effected by these consequences, the fact they are permanent and she will have to suffer them through the remainder of a long life;
(f) I otherwise note the matters that Ms Gunther has listed in her affidavit material as being material consequences particularly as to the impact on her social life,[48] and supported by her mother's affidavit.[49]
[48]Affidavit of the Plaintiff sworn 30 November 2018, paragraph [37], at PCB 16
[49]Affidavit of Barbara Brady sworn 13 February 2020, at PCB 27 - 28
57 In all those circumstances, I will grant Ms Gunther's application.
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