HANNA and CHUBB SECURITY SERVICES LIMITED
[2010] AATA 613
•18 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 613
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6047
GENERAL ADMINISTRATIVE DIVISION ) Re MARK HANNA Applicant
And
CHUBB SECURITY SERVICES LIMITED
Respondent
DECISION
Tribunal Mr S. Webb, Member Date18 August 2010
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Mark Hanna suffered an injury in the form of a haematoma on the medial aspect of his lower left leg in relation to which Chubb Security Services Limited is liable to pay compensation.
Mr Hanna’s entitlements to compensation are to be determined by the Chubb.
The parties have 14 days in which to make submissions concerning orders for costs.
...................[sgd]...........................
Mr S. Webb, Member
CATCHWORDS
WORKERS COMPENSATION - claim for haematoma - dispute about factual circumstances – issues of credit – factual circumstances established - decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 6, 14, 108A
REASONS FOR DECISION
18 August 2010 MR S. Webb, Member 1. Mark Hanna is employed by Chubb Security Service Limited (Chubb) as a vault hand. He takes Warfarin medication, an anti-coagulant agent, for a thrombosis condition that is unrelated to his employment. Mr Hanna asserts that he bumped his left leg while at work and suffered a haematoma as a result, which required medical treatment and caused incapacity for work. He claimed compensation, but the claim was denied by primary determination and on reconsideration. Mr Hanna is not happy with that result and has applied for review.
2. There are two things to note at this stage. It is not disputed that Chubb is a licensee under the Commonwealth workers compensation scheme provided by the Safety, Rehabilitation and Compensation Act 1988 (the Act) and that Mr Hanna’s claim rises for determination under that Act. The injury claimed is a haematoma on the medial aspect of Mr Hanna’s lower left leg. While there is disputation about the mechanism of the claimed injury, it is clear enough that if the haematoma in issue is a result of trauma then it has the character of a frank physical injury rather than a disease process for the purposes of the Act. [1]
[1] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300.
3. The question of liability to compensate Mr Hanna in respect of the claimed injury is the only issue that is squarely before the Tribunal – issues concerning compensation for incapacity and medical treatment expenses have not been previously considered or decided. Thus, the sole issue for determination is whether Mr Hanna suffered an injury arising out of or in the course of his employment by Chubb.
4. Chubb asserts that Mr Hanna did not suffer an injury at work in the manner claimed. Even though Chubb accepted that vault workers may bump themselves on the wooden platforms attached to the hydraulic trolleys from time to time,[2] it does not accept Mr Hanna’s version of events on 21 July 2009. As I understand Chubb’s case, there are several reasons for this. Firstly, in Chubb’s submission Mr Hanna is an entirely unsatisfactory historian who gave shifting and convenient evidence that is riddled with inconsistencies. Chubb says that the history of the claimed injury Mr Hanna gave to Dr Bornstein – ‘He had struck his left ankle on its medial side just above the medial malleous, with a trolley … this was quite a heavy whack and he noticed quite a lot of pain, which doubled him over until the pain settled”[3] - is not supported by any evidence and it is not consistent with the account he gave to Alicia Howlett, an investigator with C&A Insurance Support Services Pty Ltd. In that account Mr Hanna stated that “I inadvertently got my leg stuck between two trolleys. I banged my left leg against the wooden trolley platform… I felt immediate pain when I struck my left leg. I swore under my breath and bent over inside the vault”.[4] Furthermore, in Chubb’s submission, this account is not consistent with Mr Hanna’s statement of 25 May 2010, filed in these proceedings – “The corner of the trolley hit the inside of my left shin, above the ankle, causing me temporarily to lose balance and put my hand against the wall. I looked down at the trolley but thought nothing further of the incident”.[5]
[2] The parties informed me that the evidence of Lisa Lovric, the leading hand in the Chubb cash room and vault area on 21 July 2009, on this point was agreed and accepted.
[3] T18 folio 120.
[4] T13 folio 66.
[5] Exhibit R1, p1.
5. Secondly, in Chubb’s submission the alleged mechanism of injury is simply not possible or plausible, on any account given by Mr Hanna. Chubb says that the height of Mr Hanna’s claimed injury is lower than the wooden platform of the hydraulic ‘scissor’ trolley he was using at the time. The platform of the trolley was measured in the hearing room and found to be 1.5 centimetres thick and 28.3 centimetres from floor level at the lowest position. Chubb asserts that the location of Mr Hanna’s claimed injury was measured to be 26 centimetres and even allowing an additional amount for the increase height of the safety boot heel, the alleged level of the injury is well below the level of the wooden platform that is said to have caused it. In Chubb’s submission, therefore, as Mr Hanna’s evidence is that the injury occurred when his left foot was flat on the floor, it is not physically possible for the injury to have occurred in the manner he alleges.
6. Thirdly, Chubb says that Mr Hanna “is not sufficiently troubled about telling lies for advantage” and his account simply cannot be believed as true without corroborating evidence. Plainly enough there are issues of credit concerning Mr Hanna. Mr Hanna accepts that he applied for three days leave to attend medical appointments on 22, 23 and 24 July 2009, which was granted, when in fact he wanted the leave to prepare for his 50th birthday party on 25 July 2009. It is clear that he was not honest and deceived his employer about the reasons for wanting leave at that time. There are difficulties, to which Chubb has pointed, concerning Mr Hanna’s statement that “the vault was packed with empty trolleys” on commencement of his shift at approximately 14.00 hours on 21 July 2009,[6] when the CCTV recorded footage very clearly demonstrates that no trolleys were in the vault room at that time.
[6] T13 folio 65.
7. Fourthly, Chubb asserts that disgruntlement is a motive, at least in part, behind Mr Hanna’s compensation claim. Chubb says that he made a compensation claim for an alleged back injury in 2008, but this was rejected for want of probative evidence. Chubb maintains Mr Hanna was disgruntled and angry as a result. Mr Hanna agreed that he was angry and disappointed about this result, but he did not take the matter further as was his right.
8. Fifthly, Chubb asserts that financial advantage is a motive, at least in part, for Mr Hanna’s compensation claim. Chubb says that when Mr Hanna realised that the haematoma on his left leg would require medical treatment and significant costs may be incurred, he concocted a story to support a compensation claim against his employer in order to recover the costs and compensation for incapacity. This, Chubb asserts, is consistent with Mr Hanna’s previous pattern of behaviour in his earlier compensation claim, connecting pain and pathology with work retrospectively and for advantage.
9. Lastly, in Chubb’s submission, if Mr Hanna’s claim was genuine, one might expect him to have agitated for change to the design of the trolleys in order to provide greater protection against injury, or that he would use shin pads, as advised, to protect himself from further injury. Chubb asserts that Mr Hanna has not done either of these things.
10. In sum, Chubb submits that the only evidence to support Mr Hanna’s claim is his own evidence, and that is seriously flawed by inconsistency, unreliability and lies. On that basis, Chubb says that the claim was correctly denied and the decision under review should be affirmed.
11. As will appear, I do not agree.
12. Mr Hanna’s claim is to be determined under the Act. Chubb will be liable to pay compensation to Mr Hanna if it is established that he has suffered an ‘injury’ as defined.[7] As can be seen, ‘injury’ includes a physical injury arising out of or in the course of the particular employment.[8] For an injury to be made out, these matters must be established to the reasonable satisfaction standard, on the balance of possibilities.[9] Reasonable satisfaction should not result from indefinite evidence or indirect inferences.[10] Mere possibility or conjecture alone is not sufficient. That is so even if the possibility is real rather than fanciful.[11] The balance of probabilities test does not authorise simply choosing between guesses, on the ground that one guess seems more likely than another.[12] Nevertheless, as Lord Denning observed “in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”.[13] Spigelman CJ said in Seltsam Pty Ltd v McGuiness that “an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility”.[14]
[7] Sections 5A and 14, Safety, Rehabilitation and Compensation Act 1988.
[8] Section 6, Safety, Rehabilitation and Compensation Act 1988 refers.
[9] Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 155-156.
[10] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.
[11] Repatriation Commission v Smith (1987) 74 ALR 537 at 547.
[12] Jones v Dunkel (1959) 101 CLR 298 at 305.
[13] Bater v Bater [1950] 2 All ER 458 at 459.
[14] (2000) 49 NSWLR 262 at para [98].
13. These principles must be applied to the present evidence.
14. Mr Hanna says that, to the best of his recollection, he bumped his left leg when manoeuvring a trolley in the Vault 2 room during the first hours of his shift on 21 July 2009. On that day his shift commenced at 14.00 hours (2pm). He maintains that he cannot be certain about where or exactly when or in what circumstances he bumped his leg. Mr Hanna’s sworn evidence is that he recalled experiencing a momentary sharp pain on the inner aspect of his lower left leg, but there was no continuing pain and no mark or lesion – it was not as bad as other previous bumps or ‘whacks’ on his legs, which were extremely painful and bled on occasion, that Mr Hanna says he experienced when manoeuvring trolleys in preceding months; it was not as bad as previous bumps on his shins, for example. Mr Hanna’s evidence that he had experienced such minor injuries since January 2009, when he was diagnosed with portal vein thrombosis and commenced anti-coagulant treatment for that condition with Warfarin, was not seriously challenged. On the contrary, I was informed by Chubb that it accepted that Lisa Lovric would give evidence, if called (and she was not), that employees may occasionally bump their legs on the trolleys. That evidence is consistent with the unchallenged evidence of Mr Carriage - “if you hit the new trolleys, the surface is made out of plywood and if you hit it with your leg it hurts”.[15] That being so, I accept Mr Hanna’s evidence that he bumped his legs on trolleys at work on a number of occasions after January 2009 and prior to the alleged incident that lies at the heart of this case.
[15] T13 folio 101.
15. As it appears to me, Mr Hanna’s account of the alleged mechanism of injury to his lower left leg is entirely plausible and can be accepted. The discrepancies between the various statements he has made over time and his oral evidence to which Chubb has pointed are, with one exception, to my mind very minor and do not persuade me that Mr Hanna is an unreliable historian, or that he is lying. As it appears to me Mr Hanna gave his sworn evidence in a straight-forward manner; he was not evasive and gave answers to questions put to him without dissembling and without apparent guile. Subject to the exception to which I will return, I accept Mr Hanna’s evidence.
16. With regard to the issues of credit Chubb has raised, I note that Mr Hanna’s statement on 8 August 2009 was taken by Ms Howlett in Mr Hanna’s home on a Saturday soon after his release from The Canberra Hospital.[16] I accept his evidence that his left lower leg was extremely swollen, discoloured and painful; he was taking strong analgesic medication at the time; and he was not thinking clearly about the precise details of what had occurred on 21 July 2009. As to whether Mr Hanna or his leg was ‘between’ two trolleys, or whether his left leg was bumped by or into or against a trolley, these are matters of detail that may reasonably be explained by linguistic imprecision and Mr Hanna’s (admitted) imperfect memories. In this case, having the benefit of Mr Hanna’s sworn evidence properly tested in cross-examination, I am not persuaded that the linguistic imprecision or the imperfect memories are matters of artifice and convenience, concocted for the purpose of obtaining advantage. On the contrary, it appears tolerably clear to me that memories of minor events that would be considered innocuous in different circumstances may well be imperfect, especially with the effluxion of time, for no other reason than the particular event was perceived at the time as insignificant, or run-of-the-mill, or inconsequential and requiring or commanding little attention. If such imperfection is a failing, it is likely to be a very human failing that affects us all and does not, of itself, provide firm ground on which to raise allegations of lying or deceit. More is required.
[16] See clinical notes in Exhibit A1.
17. Mr Hanna’s varying accounts of the pain he experienced are raised as a difficulty. His sworn evidence is that the trolley impact was minor and the experience of pain was momentary and quickly forgotten. That account is consistent with his subsequent behaviour during the remaining part of his shift on that day, in which he was not troubled by any symptoms. It is also consistent with his initial consultation with Dr Joseph, in which no reference was made to any alleged injury. His statement on 25 May 2010 makes no reference to pain. When one considers Mr Hanna’s statement on 8 August 2009, the description provided is one of “immediate pain” that “I soon forgot”.[17] That, in my mind, is not inconsistent with his oral evidence. The same cannot be said, however, for the account reported by Dr Bornstein; the report of “quite a lot of pain, which doubled him over until the pain settled” must be treated with caution as it stands apart. This is the exception to which I have referred concerning my acceptance of Mr Hanna’s evidence. As it appears to me, the account reported by Dr Bornstein is not consistent with Mr Hanna’s sworn evidence and it is infected by exaggeration or embellishment.
[17] T13 folio 66.
18. The CCTV footage does not reveal a man doubling over with pain – Mr Hanna can clearly be seen bending forward to position the trolley into position. If he sustained ‘quite a heavy whack” and “quite a lot of pain”,[18] one might expect to see some visible reaction by Mr Hanna in the CCTV footage, but no such reaction is clearly visible. Nor does it appear that Mr Hanna lost his balance as a result of any such impact.[19] Is this persuasive evidence that Mr Hanna is lying and the entirety of his sworn evidence should be discounted without independent corroboration? To my mind it is not. Nor is that conclusion made out on the basis that Mr Hanna misled his employer about the reasons for wanting three days leave or in relation to the result of his earlier compensation claim. That Mr Hanna misled his employer is not disputed; Mr Hanna readily admitted that he did and explained why he did so. While such dishonesty cannot be condoned, it does not follow that Mr Hanna is a dishonest person in all matters relating to his employer. Mr Hanna did not seek to conceal what he had done and he was forthright in his evidence on that subject. Mr Hanna was similarly frank in respect of his feelings following the rejection of his previous compensation claim. The anger and disappointment he described must be weighed against his decision not to challenge the rejection decision while continuing in his employment with Chubb. Having heard his evidence on this point, including cross-examination concerning the circumstances of the earlier compensation claim, I do not detect a degree of dissatisfaction or disgruntlement in Mr Hanna with his employer that is consistent with or would support an assertion of malign motivation against Chubb. I do not accept Chubb’s submissions in that regard.
[18] T18 folio 120.
[19] Exhibit R1, p1.
19. It is necessary to say some things about the CCTV footage and the submissions made in that regard. Mr Hanna identified a sequence of events in the CCTV footage between 14.18.45 hours and 14.18.55 hours as the likely time the injury with the trolley occurred. The footage was viewed in the hearing room using a DVD filed by Chubb (Exhibit R2). I was informed that the DVD is a true copy of the original VHS recording and no issue was taken about its authenticity. The recoding is a high speed recording, in which one minute of real time is recorded in six seconds. Even so, I was informed that the recording was complete and continuous and, when viewed at 1/10th speed the material may be viewed in real time. Nevertheless, even though the crucial material was viewed at 1/16th speed (the slowest setting available on the available equipment) and frame by frame, there is a staccato effect, visually. Perhaps this is a failing of the particular equipment used to view the material, or perhaps it is a flaw in the recording.
20. What ever the explanation, the resolution of the recorded material is poor and it is difficult to make out any fine points of details, in the form of facial expressions for example. The recordings are made using an elevated fixed camera. While this gives good coverage of the vault room, Mr Hanna’s left lower leg is obscured from view at the nominated moment by plastic tubs on one of the trolleys in the room. At this point, Mr Hanna has his back and left side to the camera and his face is partially obscured. I do not accept the proposition put by Chubb that Mr Hanna deliberately selected this sequence for these reasons. By his own account he viewed the entire CCTV footage this year when a copy was provided to him, well after the alleged events, in order to identify footage that matched his recollection of events and the description he had provided in his earlier statement. As it appears to me, that is what he did.
21. It is clear that the recorded material has been viewed by a number of people, including Mr Hanna, a number of Chubb employees and Ms Howlett. I was informed that all those who have viewed the material have failed to locate any other footage that is possibly consistent with the alleged sequence of events described by Mr Hanna. On that basis, the parties agreed that it is not necessary for me to view the entirety of the material on the DVD recording, and I have not done so, referring only to the parts to which I was referred (between 14.00 hours and 14.22 hours).
22. In sum, therefore, the CCTV material is not, alone, determinative. It is not sufficiently clear to establish one way or the other whether Mr Hanna’s left leg was bumped by the trolley or whether he reacted to resulting pain, albeit momentary; it does not clearly establish the mechanism of injury as alleged by Mr Hanna, nor does it disprove his evidence on that point or establish that he is lying.
23. The medical evidence flows as one in this case. Dr Bornstein’s second report is compelling and can be accepted.[20] The Doctor states that “a blow to the leg in an individual who is on warfarin could certainly cause a haematoma that can gradually increase in size if the vessel fails to stop bleeding”, “A haematoma could have developed and, at the size noted by Mr Hanna, and in the timeframe that he claims” – “a blow of any description whether at work or away from work could cause a similar problem”, “it really does not take a great deal of trauma to produce this type of problem”.[21] Dr Bornstein was provided with a copy of the C&A Insurance Support Services report into Mr Hanna’s claim, in response to which he concluded that “the sequence of events as described did not appear to me to be out of keeping and therefore was an acceptable history”. These points were not challenged or tested, and Doctor was not called to give evidence.
[20] T21 folios 129-130.
[21] T21 folio 130.
24. The proposition that Mr Hanna may have injured his leg outside work, while preparing for his 50th birthday party was not squarely put to him. There is simply no evidence of any such injury occurring. No evidence was called from persons who may be in a position to provide such evidence and from whom evidence may be expected in the circumstances, Mr Hanna’s wife, for example. The slate is blank in that regard.
25. There is no evidence before me that a haematoma may occur spontaneously, or in circumstances without trauma. Even if that is a possibility, and well it may be, there is no evidence that that is what occurred in Mr Hanna’s case. The medical evidence is sufficient to establish, by strong inference at least, that the haematoma on Mr Hanna’s lower left leg was of traumatic origin.
26. Chubb did not seriously challenge Mr Hanna’s evidence that he first noticed the lump on his lower left leg on awakening on the morning of 22 July 2009. I accept his evidence on this point, and so find. That being so, the trauma that caused the haematoma must have occurred at an earlier point in time, on Dr Bornstein’s evidence within the preceding 24 hours. Dr Bornstein’s evidence is that the timeframe posited by Mr Hanna is broadly consistent with what he would expect concerning the emergence of the haematoma, although he could not be more precise about the actual time involved.
27. The only evidence before me concerning the traumatic circumstances that precipitated the haematoma is that of Mr Hanna - he recalled bumping his left leg while manoeuvring a trolley in the vault room soon after commencing his shift at 2pm on 21 July 2009, perhaps within the first hour, he could not be sure.
28. In support of his claim Mr Hanna exposed various marks and scars on both legs below the knee that he said were the result of previous bumping incidents involving trolleys. This evidence was not seriously challenged. As it appears to me Mr Hanna’s evidence on this point is supported the evidence of Mr Carriage and the parties’ agreement concerning Lisa Lovric’s account and can be accepted. Mr Hanna pointed to a mark on the medial aspect of his lower left leg, indicating that this was the point of the alleged bump that caused the haematoma. The height of this mark from the floor was measured using a ruler in the hearing room (without a high degree of accuracy) and was found to be approximately 26 to 26.5 centimetres. On Mr Hanna’s evidence he wears safety boots at work with a higher heel than the shoes he was wearing during the hearing; he estimated that this would add 1 to 1.5 centimetres. This evidence was not seriously attacked and no evidence to the contrary was adduced. I am prepared to accept Mr Hanna’s evidence on this point.
29. A large area of discoloration was observed below the level of the mark on Mr Hanna’s left leg to which I have referred. Mr Hanna explained that the discoloration commenced a couple of days after the emergence of the lump and was associated with quite extensive swelling and pain; the area was significantly greater that the area of discoloration presently remaining – the swelling increased to the size of a football and was not limited to the size and area outlined in the diagram made in the fracture clinic on 29 July 2009 (Exhibit A1). I accept this evidence. I note that the height of the trolley platform was measured to be 28.3 centimetres from floor level and the measured height of the mark on Mr Hanna’s left leg was in the vicinity of 27 to 28 centimetres when allowance is made for the heel of the safety boot he was wearing at the time. That being so, I find that the alleged mechanism of injury was within the realm of possibility and cannot be ruled out on the basis that it was not physically possible; I do not accept Chubb’s submissions in that regard.
30. Mr Hanna was closely examined about these matters and was unwavering in his evidence: the trolley bumped his leg causing momentary sharp pain; he continued with his shift without difficulty or further thought about bumping his leg – he made no complaint and displayed no symptoms; he completed the shift at approximately 7.30pm and drove home, where he cooked dinner and watched some television before retiring to bed for the night. The next morning he woke and felt an ‘itchy’ sensation on the inner aspect of his lower left leg; he touched this with his right foot and noticed a lump. Mr Hanna says that, on inspection, the lump was the size of a golf ball and was not discoloured or painful. He rang his treating general practitioner, Dr Joseph, and obtained an appointment that day. Mr Hanna’s evidence is that he was very concerned about the lump but he did not associate it with any trauma - “It was just something that shouldn’t have been there”. Dr Joseph examined the lump and referred Mr Hanna for an ultra-sound scan that day. Mr Hanna agreed that he did not inform Dr Vincent that he had bumped his leg the previous day. His explanation for this omission was simply that he had forgotten about it – “I put it out of my mind immediately”. He says that he did not connect the emergence of the lump and bumping his leg the previous day. He attended on Dr Joseph to obtain a diagnosis of the lump and maintains that “I was not thinking about an injury”, “I wasn’t asked about an injury” and “injury wasn’t playing on my mind at the time”.
31. As I have said, this account is plausible and, weighing the evidence as a whole, I accept it. The fact that Mr Hanna asked the Operations Manager at Chubb, Mr Morrow, to retain and view the CCTV footage covering his shift on 21 July 2009, on the basis that he was convinced the bumping incident would be revealed therein, is persuasive evidence that supports Mr Hanna’s credibility. If Mr Hanna was concocting a story, one would not expect him to direct his employer to view evidence that could reveal the lie; the contrary holds - I accept that Mr Hanna directed his employer to view that material because he believed that it would reveal the truth. It is unfortunate that doubts raised by the CCTV footage were not investigated further, with reference to CCTV footage from outside the vault room or covering the secure loading dock. I understand that Chubb did not review these tapes in respect of Mr Hanna’s claim and the tapes were destroyed after four weeks and cannot now be retrieved.
32. To my mind the available evidence is sufficient to establish, on the balance of probabilities as opposed to mere possibility, that Mr Hanna bumped his lower left leg when manoeuvring a trolley in the vault room at approximately 2.18pm. Even though the CCTV footage, alone, is not sufficient to establish that this occurred, when the evidence as a whole is considered it is sufficient to permit an inference to be drawn that the bump occurred and was of sufficient degree to initiate a process of bleeding that resulted in the haematoma Mr Hanna observed the following morning. I so find.
33. In conclusion, therefore, Chubb’s assertions concerning Mr Hanna’s credibility are not made out or accepted. I have found him to be a reliable witness despite the minor transgressions to which I have referred, and his sworn evidence concerning the mechanism of injury is accepted.
34. On the evidence of Dr Bornstein I am reasonably satisfied and find that Mr Hanna suffered an injury in the form of damage to blood vessels in his lower left leg, causing a haematoma that required medical treatment and resulted in incapacity for work. On Mr Hanna’s own evidence and the CCTV footage I am satisfied, by inference at least, that the injury occurred in the course of his employment or arising out of the employment (the haematoma developed over time). That being so, Mr Hanna is entitled to compensation in respect of the injury and the decision under review will be set aside.
35. Mr Hanna’s entitlements to compensation are to be determined, subject to section 108A of the Act, by Chubb on application.
36. I have not heard the parties in relation to orders for costs. That will be done – the parties will have 14 days from this day to lodge any written submissions on this subject. If no submissions are received within that frame, orders will be made that Chubb is to pay Mr Hanna’s reasonable costs in these proceedings as agreed or taxed in a manner that is consistent with clause 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of MR S. WEBB, MEMBER
Signed: ..........................[sgd]...............................................
AssociateDate/s of Hearing 9 August 2010
Date of Decision 18 August 2010
Counsel for the Applicant S. Whybrow
Solicitor for the Applicant B. Redpath
Counsel for the Respondent M. Snell
Solicitor for the Respondent S. Marris
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