Johnstone v Department of Human Services
[2012] VCC 1402
•18 September 2012 (revised 21 September 2012)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00628
| JOHN JOHNSTONE | Plaintiff |
| v. | |
| DEPARTMENT OF HUMAN SERVICES | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 11 & 12 September 2012 | |
DATE OF JUDGMENT: | 18 September 2012 (revised 21 September 2012) | |
CASE MAY BE CITED AS: | Johnstone v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1402 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Injury to lower back – Plaintiff’s participation in regular golf – Significance of video surveillance – Whether pain and suffering consequences satisfied the statutory test – s. 134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W. R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 John Johnstone says that he is "hooked" on golf. He is however a recent convert. He is now aged 62 and only took up playing in about April 2010. This was after he had injured his back in a workplace accident on about 10 July 2008. He was and remains working as a carer with disabled persons in a community residential unit in Benalla.
2 During cross-examination, Mr Johnstone was shown over an hour of surveillance video taken at the Jubilee Golf Course in Wangaratta on 13 November 2011 and 4 February 2012. The film was taken during a total of 52 hours surveillance of Mr Johnstone on eight separate days between 11 November 2011 and 19 August 2012.
3 The defendant's senior counsel, Mr Middleton SC, submitted that the film demonstrated that Mr Johnstone had a far greater physical capacity than his affidavits and his histories to doctors would suggest. Accordingly, it was said Mr Johnstone did not satisfy the statutory test for serious injury and his application for leave to bring a proceeding limited to a claim for pain and suffering damages should be dismissed. In this proceeding, the video surveillance evidence is therefore likely to be significant in the determination of the application.
The injury and treatment received
4 Mr Johnstone holds a Certificate IV in Disability Services. He worked for the Department of Human Services in Melbourne before he moved to northeast Victoria about six years ago. He works with intellectually disabled residents and is involved in all aspects of their care. The residents live in accommodation with at least one staff member present at all times. This requires the staff to work shift work and includes overnight stays or sleepovers.
5 On 10 July 2008, Mr Johnstone injured his back whilst turning a mattress. He was able to continue working, although the following morning he attended his general practitioner Dr Alethan at the Ovens Medical Group in Wangaratta. On 14 July 2008, he had a CT scan, and on 22 July 2008 an MRI of the lumbar spine.
6 The MRI report described, "Age-related lumbar degenerative disc changes with annular bulges seen at L3-4, L4-5 and L5-S1 levels. There is no focal disc protrusion or nerve root compromise". A recent MRI on 10 August 2008 seems to have made similar findings, although the report noted "Mild to moderate right L5-S1 neural foraminal stenosis secondary to encroachment by a facet osteophyte".
7 Dr Addison of the Ovens Medical Group reported in July 2012 to Mr Johnstone's solicitors that Mr Johnstone had "developed annular disc bulges at L3-4, L4-5 and L5-S1 following his injury in July 2008 [and was] suffering from lower back pain with probable referred pain down his right leg as well".
8 Dr Addison noted limitations in Mr Johnstone's physical capacity which affected his employment as well as social, domestic and recreational activities. Mr Johnstone was treated with "hydrotherapy, physiotherapy, restricted work duties and appropriate PRN analgesia". The medication prescribed until recently was, "Panadol Osteo two tabs TDS, PRN. Codalgin Forte one to two tabs MANE, post sleepovers at work. Voltaren one tab BD, PRN". On 6 August 2012, Dr Addison changed the prescription to "Endone 5 mg tablet one four times a day PRN".
9 Dr Addison's prognosis in July 2008 was: "It is my hope with appropriate management that John's back pain may be prevented from deteriorating further... Given his long nature of pain however, I am unsure if any further improvement from his current state can be expected”.
10 Mr Johnstone attended PhysioCare Wangaratta on 18 September 2009 and received regular physiotherapy and aquatic therapy which continues. Mr Johnstone was cleared by the physiotherapist to return to his "pre-injury roster" in September 2010, although it is not clear if the return was subject to any restrictions.
11 On about 26 March 2011, Mr Johnstone was assaulted by a resident. Over the next few days his back pain increased. Mr Johnstone saw his general practitioner and the physiotherapist. The general practitioner certified Mr Johnstone as unfit for all duties for a period. His current WorkCover certificates of capacity are apparently issued by the physiotherapist Martin Webster. Work restrictions are imposed: "No lifting over 5kg. No reaching above shoulder or outside base of support. No driving or sitting more than 30 minutes. No light mopping or sweeping more than 10 minutes”.
Medico-legal examinations
12 In addition to the treating practitioners, Mr Johnstone has been seen by the following medico-legal examiners:
a. on 19 April 2011, Mr Steven Leitl, an orthopaedic surgeon, saw Mr Johnstone at the request of the WorkCover insurer "for assessment of this worker's permanent impairment for the back". At that stage Mr Johnstone had not returned to work following the assault on 26 March 2011. Mr Johnstone described “constant lower back pain that was aggravated by prolonged postures such as sitting and standing, and aggravated by twisting. There was increased pain at the end of each day and his sleep was often disturbed". Mr Leitl considered that the original accident and the assault had caused "aggravation of multilevel degenerative changes";
b. on 27 April 2012, Mr Michael Dooley, an orthopaedic surgeon, saw Mr Johnstone at the request of the defendant's solicitors. Mr Dooley also considered that "underlying degenerative disc disease of the lumbar spine" had been aggravated. He said: "The initial pain was significant. It improved steadily with time. Mr Johnstone has noted a constant ongoing background type aching pain since the episode. He reports intermittent exacerbations of pain. At times he notes some pain and numbness affecting the lower limbs”.
Mr Dooley said he believed "that the appropriate management for Mr Johnstone is essentially self-management in the form of regular low-impact exercise and sensible modification of activity. Walking, water exercises, stretching exercises, etc. would benefit Mr Johnstone. I do not believe that he requires regular ongoing formal physiotherapy treatment. Such treatment should be reserved for any intermittent exacerbations of pain that fail to settle in a reasonable time. There would be no indication to consider operative intervention in his management".
In relation to employment, Mr Dooley said: "Mr Johnstone would be advised to avoid regular heavy physical activity or a lot of bending and lifting. His current work hours are appropriate";
c. on 27 July 2012, Mr Peter Dohrmann, a neurosurgeon, saw Mr Johnstone at the request of his solicitors. He considered that Mr Johnstone was suffering "from chronic low back pain in association with multilevel lumbar disc degeneration. He has referred right leg pain without evidence of radiculopathy”.
Mr Dohrmann thought the right leg referred pain "could be consistent with nerve root irritation or even compression in the lumbar spine". He reaffirmed this opinion after he had examined the recent MRI. He considered that Mr Johnstone's inability "to engage in repeated bending, lifting or twisting motions of the lumbar spine [were] likely to continue for the foreseeable future". He also anticipated that "Mr Johnstone's symptoms will continue at much the same level as they have for the past few years, for the foreseeable future".
Mr Dooley was asked to comment on Mr Dohrmann's report. Mr Dooley considered that when the underlying degenerative condition was aggravated "no structural change occurred to the lumbar discs, facet joints, etc". He warned however that care needed to be taken "correlating the clinical condition with radiological findings. It is well recognised that many patients with so-called advanced degenerative changes on lumbar spine radiological investigations may have minimal symptoms at most";
d. On 15 August 2012, Mr David Brownbill, a consultant neurosurgeon, saw Mr Johnstone at the request of his solicitors. Mr Brownbill considered that Mr Johnstone had "soft tissue damage about the lumbar spine", although the exact nature of those changes had not been determined. He said the changes "may represent some facet joint changes, lumbar disc damage, or ligamentous or muscle damage".
He said Mr Johnstone should "avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting". He considered that Mr Johnstone's impairment of the lower back would restrict his "social, domestic and recreational activities to a moderate degree and ... such incapacity will continue for the foreseeable future".
He suggested the possibility of a review "by a treating spinal surgeon". He said, "The prognosis must remain uncertain as the exact nature of the spinal structures involved in the injury have not been defined....but as the described pain has continued for some four years, it is likely to continue indefinitely".
Mr Johnstone’s golfing activities
13 Mr Johnstone's golfing history is accessible, as he registers each completed round of 18 holes in order to reduce his handicap. His first round was on 26 April 2010 when his handicap was 35. In 2010, Mr Johnstone completed 20 rounds and reduced his handicap to 27. In 2011, he completed 45 rounds and reduced his handicap to 26. This year, he had completed 23 rounds and his current handicap is 24. This is a total of 94 rounds. In addition, Mr Johnstone has completed or started perhaps another ten rounds of golf.
14 The surveillance film on 13 November 2011 showed Mr Johnstone participating in a fund raising event wearing a cowboy outfit. He agreed that he did not appear to be in any discomfort in the film, and after the game he would have socialised. The 36 minute video covered a period of about four hours including about one hour before Mr Johnstone commenced playing, and three hours on the course.
15 My observation was that Mr Johnstone appeared to generally carry out all activities in a slow and deliberate manner and that he walked slightly hunched over. This may, of course, have been the position before the accident. On the video, Mr Johnstone prepared his three wheeled buggy, he bent over a number of times to put his shoes on and later to pick up his ball or tee, or to clear obstructions on the course. He drove the ball using a driver; he said he curtailed his back swing. It seemed to me that rather than twisting his body as he came through the stroke, he pirouetted on one leg. The golf course appeared to be undulating; Mr Johnstone said it was, "in the foothills" and he would walk about five kilometres each round.
16 The second video taken on 4 February 2012 was of similar length and covered about five hours, most of it on the course. The activities shown were similar to those on the first video.
17 Each of the treating and examining medical professionals commented on Mr Johnstone's golf:
a. Dr Addison said, "John loves playing golf and is heavily involved with the Jubilee Golf Club. Unfortunately his back pain has limited his ability to play golf and he currently finds he is only able to play once a fortnight (due to associated discomfort)".
The clinical notes on 6 August 2012 record, "John presents with a recent exacerbation of his lower back pain. Played some golf on Wednesday (only some chipping and putting) and his back was very sore on Thursday and Friday".
Mr Johnstone's golfing history records that on Wednesday 1 August 2012 he played 18 holes, returning a round of 97. Mr Johnstone's next round was on 29 August 2012, and he was prescribed Endone on 6 August;
b. Mr Webster, the physiotherapist, noted that, "Mr Johnstone enjoys walking, golf and manages his home exercise program well". Mr Johnstone said in evidence that the physiotherapist he saw before Mr Webster, had said to play golf as often as he can for exercise. Part of Mr Webster's clinical notes on 10 August 2012 records, "Occasional game of golf as tolerated". In the previous month, Mr Johnstone had played two 18 hole rounds.
On 17 October 2011 the clinical notes record, "Able to manage nine holes of golf with controlled swings". In the previous month Mr Johnstone had played three games of 18 holes;
c. Mr Leitl notes, "After recovery from the initial back injury he had started to play golf, limiting himself to chipping and putting, but had given this up after suffering a recurrence some 12 months later. He has not returned to golf as yet".
Mr Leitl recorded that, "On 14 July 2009 he said that as he was removing pots from a stuck lower drawer in a disability house, with the extra effort required to open the drawer, he hurt his back again".
Mr Leitl also referred to the assault by a resident on Mr Johnstone on 26 March 2011. It is possible that Mr Leitl was referring to this latter incident in his report. The golf history shows that Mr Johnstone played rounds of golf on 28 and 30 March 2011, but did not play another round until 23 April 2011;
d. Mr Dooley recorded that both Mr Johnstone "and his wife are keen golfers. Mr Johnstone said that he is still able to play golf, but not to the standard he previously achieved. He said that the next day after a game of golf his back is sore";
e. Mr Dohrmann recorded that, "Mr Johnstone continues to play golf and can play as often as weekly, and can usually but not always manage 18 holes of competition";
f. Mr Brownbill noted that Mr Johnstone's hobbies were "golf and home renovations". Later he recorded that Mr Johnstone, "has not been able to return to his physical hobbies".
18 Matters which might be noted about these histories and the clinical records are:
a. Mr Brownbill's report seems to suggest that Mr Johnstone had not been able to "return" to golf after the accident. The two passages I have quoted from his report are not proximate, although clearly the suggestion that Mr Johnstone had not been able to return to or play golf, was wrong;
b. Mr Dohrmann took a reasonably accurate history about three weeks earlier than Mr Brownbill, although there were apparently few occasions when Mr Johnstone was not able to complete a round;
c. Dr Addison's clinical notes on 6 August 2012 refer to "only some chipping and putting". Mr Leitl records a similar phrase in April 2011: "limited himself to chipping and putting";
d. in some instances a history or the clinical notes could be checked against the golfing history.
Mr Johnstone’s credibility
19 The defendant's submission about the golfing issue raised the question of Mr Johnstone's credibility. I note that the examining doctors were unanimous in their observations about Mr Johnstone's presentation. It confirmed how he appeared to me during his oral evidence:
a. Mr Leitl said, "He is a pleasant cooperative man...he exhibited no pain behaviours";
b. Mr Dooley said, "I did not detect the presence of an excessive psychological reaction to his situation. Mr Johnstone presents as a sensible and genuine historian";
c. Mr Dohrmann described Mr Johnstone as "cooperative", and a person "who gave a straightforward account of his symptoms. There was no obvious functional overlay on physical examination";
d. Mr Brownbill said Mr Johnstone was, "alert and cooperative without embellishment, appearing straightforward in his presentation".
20 In his first affidavit sworn 28 September 2011, Mr Johnstone said his wife and in-laws "got me to start playing. Once I started I was hooked. I would play weekly and was a member at Jubilee Golf Club. Sometimes I would play with my wife, sometimes with other people who I met at the club. I went from a handicap of 34 down to 26 and improving...Since being injured I have also been significantly restricted in terms of playing golf. I have probably played about 20 times over the last six months or so. Out of those games I have only played a couple of good games. My handicap has dropped to 28 and will continue to drop, whereas I should have been on about 20 by now. If I attempt 18 holes, I really feel it the next day. Sometimes I will only manage six or nine holes before I give up. At this rate my handicap will drop back to about 36 in a few months time. The difficulty rests with, one, my swing, and, two, all the walking".
21 In his second affidavit sworn 27 August 2012, Mr Johnstone said, "I still try to play golf, indeed my physiotherapist advised me I should try and get out and do what I can in this regard. I love golf, however because of my back pain I do not play anywhere near as well as I did before, and as a result my handicap has stagnated. Others who I used to play with who had a worse handicap have now surpassed. I find that when I do play I have to be heavily medicated if I am to manage. Even then I usually pull up in a fair bit of pain after I finish playing a round. This can last until the next day. I find that if I have to go out on the same night, I can be very stiff and I struggle. Sometimes I will put off playing another round for another ten or 14 days before I will attempt another round. In the past I used to play golf a lot more often. If it wasn't for my back injury I would be playing far more regularly".
22 In his oral evidence, Mr Johnstone said that consistent with his work roster he would play on Monday, most Wednesdays and Fridays, and every second Saturday and Sunday if his physical condition permitted. He said he took medication one hour before he played and immediately he finished, and on occasions the three medications prescribed, together, that is before the recent change to Endone. I consider that Mr Johnstone's account in his affidavits and in his oral evidence, particularly before he was shown the surveillance film, was reasonably consistent with what was shown on the videos. I do not consider that there is any reason for me to doubt Mr Johnstone's credibility as a witness of truth.
23 In relation to the surveillance film, the puzzle is why the videos were not shown to Mr Leitl or Mr Dooley, particularly as the film does not seem inconsistent with his affidavits in any significant respects. Often, for forensic reasons, surveillance video is held back for cross-examination, and sending it to examining doctors for viewing would require the disclosure of the tapes to the plaintiff before the hearing.
24 In my view, both Mr Leitl and Mr Dooley, if they had viewed the film, would have been able to advise on at least two critical matters:
a. whether the range of movement shown on the film was inconsistent with their understanding from the histories they obtained, and therefore whether it would affect the opinions they had expressed in their reports;
b. whether the exercise undertaken by Mr Johnstone during the four hours or so each round of golf entails, was an appropriate form of exercise or whether it would be likely to exacerbate his condition. I note in this regard Mr Dooley said the "appropriate management for Mr Johnstone is essentially a self management in the form of regular low impact exercise and sensible modification of activity, walking, water exercise, stretching exercise etc would benefit Mr Johnstone".
25 The treating practitioners and the examining doctors were all aware that Mr Johnstone was playing golf. No one expressed the need for caution, particularly as most noted that Mr Johnstone should be careful of certain activities, including bending and twisting, which I am sure each of the doctors would be aware, are ordinarily features of the playing of golf.
26 I consider in the circumstances that the most significant aspect of the surveillance film is that it confirms the positive approach Mr Johnstone has taken to his rehabilitation. He keeps as active as he can; walking in addition to playing golf and managing the consequences of his injury by regularly using the medication he is prescribed, and attending for hydrotherapy and physiotherapy and seeking medical attention when his condition worsens.
Consequences of the injury
27 Accordingly, I consider that the present application is to be determined by an examination of the consequences to Mr Johnstone of his lumbar spine impairment. In this regard it is important to keep in mind the principles the Court of Appeal has enunciated in dealing with cases involving chronic pain that has no surgical solution and which must essentially be managed.
28 These principles include:
a. the fact that a plaintiff remains in employment will ordinarily be a critical matter in determining whether the pain and suffering consequences should be regarded as "very considerable" (Stijepic v. One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 47 where the Court of Appeal commented on the statement by Chernov JA in Sumbul v. Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph 124);
b. when assessing the consequences, appropriate weight should be given to the plaintiff's complaints of pain, the treatment received, medical opinions and any objective evidence of the disabling effect of pain (Haden Engineering Pty Ltd v. McKinnon [2010] VSCA 69 at paragraphs 10ff per Maxwell P);
c. appropriate regard should be given to a 'stoic' plaintiff who notwithstanding disabling pain attempts to continue with his activities of daily living and is not to be penalised for doing so (Dwyer v. Calco Timbers Pty Ltd No.2 [2008] VSCA 260 at paragraph 3 per Nettle JA and Haden Engineering Pty Ltd v. McKinnon at paragraph 47 per Buchanan JA).
29 Before the injury, Mr Johnstone worked a standard 56.75 hour fortnight together with additional shifts. He now works similar hours although he said that he limits the additional shifts he performs (particularly overnight stays) because of the need to look after his back. In the financial year completed shortly prior to his injury Mr Johnstone earned $56,220 gross. Since the injury he earned in the year to 30 June 2009 $62,347, 2010 $58,910, 2011 $66,239 and 2012 $64,115. Mr Johnstone said that he received automatic annual increments. He would have been able to earn considerably more if he had been able to accept additional shifts.
30 Mr Johnstone is still working subject to conditions imposed by his health professionals. All examining doctors agree they are necessary if Mr Johnstone is to continue working. For example, Mr Brownbill said that Mr Johnstone's back impairment "is likely to restrict him in relation to employment or activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting in a moderate to marked degree and I consider such incapacity will continue for the foreseeable future”.
31 Mr Johnstone described his work place as a "sheltered environment" and he is "fearful of losing my job there as I doubt I will find an employer who will accommodate my restrictions”. Mr Johnstone is restricted in the extra shifts he can accept particularly sleepovers because the beds at the unit cause his back to ache. From time to time his work tasks (for example mopping and vacuuming) cause an aggravation of his symptoms.
32 Apart from the effect on his employment Mr Johnstone says that his back condition also restricts his activities of daily living in the following respects:
a. Mr Johnstone's back "aches badly" when he gets home from work. He says he continues "to suffer from ongoing and constant pain in my lower back which can be aggravated depending on what I am doing". The pain is worse in cold weather and occasionally comes on spontaneously without any specific activity;
b. he is currently prescribed Endone for pain relief. Mr Johnstone said the medication helps. It takes time to "kick in" but does ease the severity of the pain;
c. Mr Johnston used to be "quite a handyman" and had assisted in the construction of two houses. He said he helped with "the foundations framework, trusses, plastering, flooring and painting", although his evidence about the more recent house in Shepparton indicated that his involvement in the construction of that house was limited to about two weeks and only some manual or supporting tasks. Mr Johnstone said that he and his wife are in the process of renovating their house they need to pay for tradesmen whereas before the injury Mr Johnstone would have purchased the materials and completed the tasks himself. The position is similar for basic home maintenance which Mr Johnstone said he would previously have carried out;
d. before the injury, Mr Johnstone established a large garden and did other landscaping work on his four acre property. He did the pruning and trimming and mowed the extensive lawns. Now his elderly father does the pruning. Mr Johnstone mows the lawn with assistance from his wife;
e. until recently, Mr Johnston collected firewood from his property for his wood stove using a chainsaw and splitter. Mr Johnstone now has installed a gas heater and said he is no longer able to collect wood;
f. Mr Johnstone's wife worked full time before he was injured. Because Mr Johnstone worked shift work he helped with most domestic chores including cooking, ironing, clothes washing and hanging out, the vacuuming and mopping. He now does less vacuuming and mopping. His wife has since retired and has assumed the greater burden of the domestic tasks;
g. Mr Johnstone had previously enjoyed social cricket, going for long walks and swimming. He no longer tries to play cricket. He finds swimming difficult and uses the pool at home "far less";
h. Mr Johnstone has found a new passion playing golf. This has very positive aspects particularly as it encourages him to regularly exercise. However, it is also a source of frustration as he is unable to play as regularly as he would like or to achieve his potential as a golfer. Playing golf, as with other activities, can aggravate his back and Mr Johnston needs to be "heavily medicated" before and after playing. Often he is left stiff and sore;
i. Mr Johnstone is discomfited whilst driving and uses a lumbar support. After 20 to 30 minutes his back becomes "very uncomfortable". If he travels to Melbourne he must stop three or four times to stretch his legs even though Mr Johnstone's wife now does most of the driving;
j. Mr Johnstone's sleep is often broken because of the back pain although recently he was supplied with a new mattress by WorkCover;
k. he has put on approximately 7kg "because of my relative inactivity";
l. sitting or standing for prolonged periods exacerbates his back pain. He prefers "walking about and being mobile";
m. whereas previously he would attend local football or cricket matches often with the residents of the unit he does this rarely now because of the prolonged sitting required;
n. at times "basic self-care tasks such as putting on my socks" require his wife's assistance;
o. his intimate relations with his wife have been substantially affected. Their social life "has been considerably restructured" (about "a third as much") although he now regularly socialises after playing golf;
p. Mr Johnstone's three infant grandchildren live in Melbourne. Although he does not appear to see them regularly, when he does he must take care when lifting them up. He said, "I would like to be able to play with [the two and a half year old] more but it is difficult".
Conclusions
33 Based upon most of the objective criteria suggested by the authorities, the consequences to Mr Johnstone of the impairment of his back are substantial. He still works the part time hours he previously worked. He is, however, restricted in the tasks he can perform and is unable to take up offers of additional shifts. These restrictions also affect his social, domestic and recreational activities. He copes with the additional pain by taking serious pain relief medication. He says, "I am keen to avoid relying on medication". The examining doctors were impressed (as was I during his oral evidence) with his straightforwardness and understated approach. He appeared to be entirely genuine and a person who tried to work as hard as he could to live with his disabling pain.
34 In the circumstances, I consider that the pain and suffering consequences of his impairment should fairly be described as "very considerable". Accordingly he will have leave to bring a proceeding for pain and suffering damages arising from the back injury resulting from the work place accident on about 10 July 2008.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 18 September 2012 and revised 21 September 2012.
Dated: 21 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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