Markouris v Interiorco Vic Pty Ltd
[2013] VCC 2019
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03168
| GEORGE MARKOURIS | Plaintiff |
| v | |
| INTERIORCO VIC PTY LTD (formerly known as EVEREADY PARTITIONS PTY LTD) | First Defendant |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November and 2 December 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Markouris v Interiorco Vic Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2019 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – s134AB Accident Compensation Act 1985 – back and hip injuries – disentanglement – psychiatric injury – disentanglement – pecuniary loss and pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985 – s134AB
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Blatch v Archer (1774) 1 Cowp 63; Earle v Castlemaine District Community Hospital [1974] VR 722; and O’Donnell v Reichard [1975] VR 916.
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity and pain and suffering in respect of injuries arising out of or in the course of employment
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr D Gibson | Ellis Palmos & Co |
| For the Defendant | Mr I S Gourlay | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff in this application has spent his entire working life in Australia with the first defendant, initially starting as a labourer in March 1968 and subsequently gaining experience to work as a carpenter and later as a site foreman. He had been doing this latter job for about ten years when he ceased employment on 13 October 2010. At that stage he was 62 years of age.
2 By this application the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to claim damages in respect of both loss of earning capacity and pain and suffering for injuries arising out of or in the course of his employment with the first defendant. In terms of the definition of serious injury set out in s134AB (37) of the Act, he identifies both the low back and the right hip as relevant impairments or losses of body function for the purposes of paragraph (a). Alternatively, he identifies a chronic adjustment disorder with anxiety and depressed mood for the purposes of paragraph (c) of the definition.
3 The plaintiff carries the onus of establishing on the balance of probabilities that the consequences of injuries are relevantly serious (or severe in the case of reliance upon paragraph (c)). Counsel for both parties assisted me by providing statements of issues prior to the commencement of the hearing.
4 In short compass, the plaintiff relied on heavy manual handling work, particularly between October 1999 and 5 February 2010, as aggravating multi-level disc degeneration in his lumbosacral spine. As a consequence of this back injury the plaintiff was claimed to be either totally and permanently incapacitated or, at the very high point, to have a very limited work capacity in the open market. The defendant had accepted a work-related component to the back injury but did not accept that the consequences reached the serious injury threshold.
5 In relation to the right hip, there was disagreement between the parties as to the work-relatedness or otherwise of a degenerative right hip condition which had led to the plaintiff undergoing a total hip replacement on 12 November 2012. Additionally, the defendant challenged the extent of consequences flowing from such an injury.
6 Finally, the psychiatric condition was claimed by the plaintiff to independently render him totally and permanently incapacitated, and as such should meet the statutory definition for a severe consequence. The defendant disputed the extent of consequences flowing from any psychiatric condition.
7 The defendant also put in issue the extent of any retained earning capacity by the plaintiff, specifically in relation to the physical component of his injuries.
8 Viva voce evidence was called from the plaintiff and his treating general practitioner Dr Kosmidis.
The evidence
9 The plaintiff swore two affidavits in support of his application on 5 March 2012 and 18 September 2013. In summation, the first affidavit sets out matters which are relevant for my determination as follows:
· Around the year 2000 the plaintiff suffered some low-back pain from manual handling which had been a regular feature throughout the course of his employment. He suffered further episodes of acute pain but took hardly any time off work.
· On 5 February 2010 he suffered a specific injury to his low back when vigorously pushing what is described as a “very large and heavy security door” while working at the Mint site in Craigieburn.
· The nature of the work generally, being involved with office partitioning, involved frequent repetitive and awkward manual handling, such as manoeuvring plasterboards and heavy doors, often involving using stairs or in unloading operations.
· Reference was made to specific incidents in 2004 and 2005 where the plaintiff required treatment from Dr Kosmidis.
· The plaintiff suffered a left inguinal hernia injury requiring surgical repair as a result of an incident whilst jack-hammering in September 2007. Following surgery the plaintiff was off work for approximately 2½ months, returning in March 2008.
· From late 2009 until ceasing work in October 2010 the plaintiff’s employment was at the Mint site in Craigieburn where he was site foreman. He estimated one-third of his time was spent in manual handling duties and the rest in lighter duties.
· At the time of the incident involving the security door on 5 February 2010 the plaintiff was working with two fellow workers and felt sharp jabbing pains in his low back and across to the right side and down his right leg. He additionally had pain in his left groin.
· The plaintiff continued to work in pain, and eventually saw Dr Kosmidis about a week later. He was then certified for modified duties without lifting. He was prescribed medication.
· The plaintiff made a WorkCover claim on 4 March 2010 which was accepted, and he received WorkCover benefits including weekly payments after ceasing work.
· Dr Kosmidis put the plaintiff off work on 9 March 2010 and referred him both to Mr Mangos (general surgeon), who had previously repaired his left inguinal hernia, and to Mr Goldwasser (orthopaedic surgeon), whom he saw on 9 April 2010 and who treated him conservatively with physiotherapy and medication.
· On 3 May 2010 the plaintiff returned to work, three hours per day, five days per week, doing supervisory duties. He found difficulty in prolonged standing and walking, and continued until late June. He was again put off work and referred to a psychiatrist, Dr Piperoglou, on 1 July 2010.
· The plaintiff continued with physiotherapy and medication, and tried to return to part-time modified duties on 19 August 2010 on another project located in Southbank. The plaintiff had difficulty, including problems using public transport getting to and from work. After that project finished in mid-October 2010 there were no further light duties made available to the plaintiff. He has not worked since that time.
· In September 2010 the plaintiff was referred to Dr Clayton Thomas (specialist physician), who identified the right hip in addition to the low back as causing problems for the plaintiff.
· The plaintiff attended the Dorset Rehabilitation Centre between January and April 2011 under the care of Dr Thomas and was subsequently referred to Mr Goldwasser in relation to a potential right hip replacement.
· The plaintiff travelled to Greece in May 2011, intending to return to Australia in mid-September. As a result of increasing problems affecting his right hip he returned in August and saw Mr Goldwasser, who injected him under x‑ray control and continued to monitor his hip condition for the remainder of 2011.
· The plaintiff was referred to a vocational consultant by the first defendant in September 2011 and attended on two or three occasions before being enrolled in an English language course in February 2012. He experienced problems with his back when attending that course, as it involved sitting for periods of up to three hours, which the plaintiff found very difficult.
· At the time of swearing the first affidavit in March 2012 the plaintiff was persisting with conservative treatment, taking medication as prescribed, and deposed to a wide range of activities in his domestic and recreational life that were affected, particularly by his persistent back pain.
· Prior to the incident on 5 February 2010 Mr. Markouris had the capacity to work 6 and sometimes 7 days per week and earn around $2000 gross, including allowances. He had hoped to work until the age of 70.
10 The plaintiff swore a further affidavit some two months prior to trial, describing the ongoing difficulties with injuries affecting his low back, right hip and right leg. In so far as it is relevant to this application, he further described the circumstances of his cessation of formal employment and undergoing hip replacement surgery. He also described the persisting circumstances of back pain which he described as being worse since the hip operation, whereas the right hip pain and movement of the right leg had improved. He deposed in relation to employment that he believed he could not undertake any employment, including supervisory duties. He again referred to the consequences of his back pain in relation to his domestic and recreational activities, stating that his back pain had increased since swearing the previous affidavit and he was generally more restricted as a result.
11 The plaintiff relied also upon an affidavit sworn on 6 November 2013 by his wife, Helen Markouris. She has been married to the plaintiff since 1968. She deposed to having sustained an injury in early 2008 affecting both of her shoulders, and undergoing surgery at or around that time. She further required home help assistance provided in respect of her injuries, but that had been reduced to two hours per fortnight in early 2013. She swore in her affidavit that her husband no longer was able to provide assistance to her, and that she would have to assist him in putting on his socks and trousers and with daily care. She was aware of injuries affecting his low back and right hip, but believed it was mainly the low back. She deposed to consequences affecting their relationship with each other and with their grandchildren. Her affidavit also referred to noticing changes in the plaintiff’s mood and personality since his injury.
12 In cross-examination the plaintiff gave evidence as follows:
· The plaintiff had been a site foreman from about 2000 onwards. Depending on the size of the job, he could be supervising anywhere from five to ten people for smaller jobs up to about fifty-five workers on big projects. He additionally had a supervisor in charge of him who would come to the site and give instructions on a daily basis.
· After moving to the supervisor role he would do hands-on physical work on weekends, early in the morning, and when demonstrating aspects of the job to workers who were unfamiliar with the work practices.
· In relation to the incident on 5 February 2010, the plaintiff agreed that when pushing the door he felt sharp jabbing pains in his low back and across to the right side and down the right leg to the calf. He agreed that in his first affidavit he did not specifically mention the right hip, but claimed that both the back and the hip hurt from the very beginning.
· The plaintiff stated that back pain that had previously gone away stayed with him after that occasion.
· The plaintiff agreed that he had been off work since 13 October 2010 and had not looked for other work, as the company (first defendant) did not offer him any further light duties.
· When he saw Mr Goldwasser in April 2010 he agreed he had been able to return to light duties three days per week, although still having a stiff back.
· He told Dr Piperoglou in October 2010 that he had severe pain in the lower back with associated numbness in the right leg (the plaintiff indicated in evidence an area from the lower back near the right buttock, passing over the right hip and down the right thigh).
· Dr Thomas told him on 6 October 2010 that there may be something wrong with his right hip, after which it was x‑rayed and he was referred to Mr Goldwasser.
· The plaintiff denied any particular activity whilst in Greece during 2011 which aggravated his right hip condition, stating it had just generally become worse.
· The plaintiff had seen a neurosurgeon in September 2013, and, after an MRI was taken, he was advised that his back problem could not be helped by an operation. He was told to keep on with his exercises, physiotherapy and generally staying active. He agreed in cross-examination that he was taking medications every day.
· The plaintiff maintained in cross-examination that he would have back pain all the time, although the level of the pain varied. Lying in bed and bending forward were particular activities mentioned. The plaintiff described his sleep as being interfered with, in that he would get somewhere between three and five hours’ sleep after taking sleeping medication, but would then be woken by the pain, usually at two or three o’clock in the morning, and take further medication. He described having to get up on another one or two occasions on a regular basis.
· The plaintiff described his wife sometimes helping him showering and dressing, and on other occasions getting his socks and performing personal hygiene for him. He described a regular routine of doing exercises, going for a little walk that was usually limited to the driveway or around the back in his garden. He was able to drive for a short time he estimated at 10 or 15 minutes, and would sometimes do trips to the large shopping centres with his wife. He described having a lot of friends but not going out regularly to visit them.
· The plaintiff described going to functions in the Greek community such as christenings, and expressed sadness at being unable to participate as he had previously done.
· He was seeing the psychiatrist Dr Piperoglou about every five or six weeks, and had seen him since around about the time he finished work.
· He agreed that he was getting modified duties certificates for at least a year after he stopped work, and these had been provided by his general practitioner.
13 When cross-examined about a document described as a letter of resignation, the plaintiff stated that he had signed the letter to access his long-service leave and annual leave. He did not agree that he had knowingly signed a letter of resignation. When it was suggested that he had turned sixty-five, which was an age looked on as being a community retirement age, he responded that he had not thought about it that way, and that he had not looked for jobs elsewhere as he was waiting for the first defendant to take him back.
14 In relation to a capacity to do light carpentry a few hours a week, the plaintiff stated that he could not do this as he had a lot of pain, and also he could not concentrate.
15 In re‑examination, the plaintiff agreed that when he first went to see Dr Kosmidis after his injury in February 2010 he described the pain as in his low back and his leg. He stated that as a result of his lack of sleep he felt a lot of fatigue during the day. He gave evidence that his superannuation remained with the company, and that he had not received any calls to return to work. He stated that the work for the first defendant involved commercial projects at business premises and not domestic homes.
16 Dr George Kosmidis also gave evidence, having prepared reports dated 5 December 2011 and 28 October 2013.[1] He was cross-examined by Mr Gourlay for the defendants, and the following evidence was noted:
[1]Exhibit A, pages 49–55
· Dr Kosmidis had been certifying the plaintiff as fit for modified duties in September 2011, although the plaintiff had not actually worked since 2010.
· The concern for the plaintiff’s right hip began to increase early in 2011 and continued up until the time of the hip replacement surgery in November 2012. Dr Kosmidis agreed that the degenerate right hip could cause problems with lengthy periods of standing, sitting, and going up and down stairs.
· The initial history and location of the pain suggested the back more than the hip, which led the doctor not to pick up the hip initially.
· Following the right hip replacement the plaintiff was still having a lot of lower-back pain, although that may in part relate to the hip.
· He believed the plaintiff was having referred pain from the lower back.
· Medication was of only minimal effect in relation to the pain.
· The plaintiff had been certified fit for light duties up until September 2011 when he was certified unfit for all work after he stated he was experiencing worsening pain. There was no particular incident related to the doctor.
· In relation to the incident of 5 February 2010, Dr Kosmidis noted constant pain in the lower back radiating down the lateral aspect of his right leg to the lower third.
· When he saw the plaintiff on 8 August 2011 after returning from Greece, the doctor recalled the main problem as “mostly back pain going down his right leg”.[2]
[2]Transcript (“T”) 98, L17–22
· He believed that the hip pain could be separated from the back pain and that the lower-back pain was the worse of the two.
· Even if the plaintiff had no psychological or psychiatric issues, he would not be fit to go back to work. He was aware the plaintiff was being treated by Dr Piperoglou.
· Dr Kosmidis regarded the problem as mostly physical.
· In relation to the hip, he did not think the plaintiff could return to his previous supervisory role, and thought using stairs and ladders would contribute to the problem. “Even walking on the flat would be a problem.”[3]
· He did not believe the plaintiff had a capacity for light process work as a machine operator or product assembler. He was unable to disassociate the hip and the back as having an impact on the plaintiff’s ability to stand, sit or weight bear.
[3]T100, L18–28
17 In re‑examination Dr Kosmidis commented that the plaintiff had multi-level degenerative disc and facet joint disease which he regarded as contributing to the lower-back pain which was referred down to the legs. He regarded the complaints of pain going down his legs as consistent with the radiological changes. This was specifically in relation to the lower back.
18 In response to questions from me, he regarded the hip replacement surgery as being unsuccessful, and that would contribute to the plaintiff not being able to go back to work. He confirmed that the diagnosis made in February 2010 was an injury to the lower back.
19 The plaintiff tendered in evidence material set out in the court book including numerous x‑rays, commencing with a bone densitometry scan of the lumbar spine and left hip dated 15 March 2005, and concluding with an MRI of the lumbar spine dated 11 October 2013. The plaintiff also relied upon three reports from Mr Goldwasser dated 9 December 2011, 26 July 2013 and 14 November 2013 (with a supplementary note dated 22 November 2013). The plaintiff additionally relied upon two reports from Dr Thomas dated 3 December 2010 and 23 November 2011, a note from the treating neurosurgeon Mr G Nair dated 28 October 2013, and two reports from the treating psychiatrist Dr Piperoglou dated 10 February 2012 and 8 October 2013.
20 The plaintiff relied upon medico-legal opinions from Mr Gerald Moran, orthopaedic surgeon, dated 17 July 2013, together with a short supplementary report dated 8 November 2013. Finally, from a medical viewpoint, the plaintiff sought an opinion from Dr David Middleton, an occupational health and rehabilitation consultant, who reported on 22 September 2013 and provided a supplementary report on 31 October 2013. A number of further documents were tendered in evidence, but it is unnecessary to refer to them at this time.
21 The evidence relied upon by the defendants included a report by Dr Malcolm Brown, occupational physician, dated 30 March 2011, and four reports from Associate Professor Hart, orthopaedic surgeon, dated 11 April 2012, 1 October 2013, 30 October 2013 and 25 November 2013. In addition the defendants relied upon an affidavit of Deborah Boettcher, contracts administrator of the first defendant, and various rehabilitation documents between March 2008 and February 2012.
Analysis
22 I accepted the plaintiff as a credible witness who did not attempt to exaggerate his symptoms. I note that senior counsel for the plaintiff called for an admission of the defendant’s court book index which referred to video surveillance material. No video surveillance was shown to the plaintiff during cross-examination, and I can infer that such material would not have assisted the defendant in its case. I can also infer that I may approach the plaintiff’s evidence with greater confidence where there is a conflict.[4]
[4]Jones v Dunkel (1959) 101 CLR 298; see also Blatch v Archer (1774) 1 Cowp 63; Earle v Castlemaine District Community Hospital [1974] VR 722; and O’Donnell v Reichard [1975] VR 916.
23 I accept that the plaintiff’s work as a site foreman for the first defendant involved heavy physical activity for approximately one-third of his normal working day from the time he commenced that activity in approximately 2000. It is clear from the radiological material that the plaintiff was having back problems requiring medical investigation at least from the early to mid-2000s.[5] At that stage he was under the care of Dr Kosmidis and Mr Goldwasser, whose opinions are relied upon in this case.
[5]X‑ray lumbosacral spine 6 December 2004, Exhibit A, page 40, and CT scan lumbosacral spine dated 22 September 2005, Exhibit A, page 41.
24 I am satisfied that the plaintiff sustained a further injury to his lower back in the incident occurring on 5 February 2010 when he was manoeuvring a heavy door at the Mint site in Craigieburn.
25 It is clear from the earliest medical opinion relied upon by the defendant that the plaintiff was suffering from a work-related aggravation of degenerative change in the lumbar spine when examined by Dr Brown on 30 March 2011:
“Mr Markouris has work-related aggravation of degenerative change in the lumbar spine, and separate osteoarthritis of the right hip.
These spinal changes have a significant constitutional element, but employment is also a significant contributing factor, due to bending and lifting at work over many years. I think it unlikely that employment has made any contribution to his right hip condition.”[6]
[6]Exhibit B
26 Dr Brown also discussed employment capacity at that stage, stating:
“His work capacity is very restricted at present, and he could do some light supervisory work for a few hours a day only. He does not have a capacity to do any physical work.”[7]
[7]Exhibit B
27 Professor Hart, in his first report to the defendant’s solicitors on 11 April 2012, took a similar view in relation to the plaintiff’s back condition. After a lengthy analysis of the potential contributing factors, he stated:
“I would therefore attribute the plaintiff’s lumbar condition of lumbar spondylosis to repeated lifting and bending at work over a prolonged period.”[8]
[8]Exhibit 1, page 18
28 Professor Hart provided a further detailed report to the defendant’s solicitors on 1 October 2013. At that time he noted that the plaintiff had been seen by Mr Nair, neurosurgeon, only a week earlier, and had a referral for a further MRI scan with the referral noting “low back pain and bilateral leg pain, right L5‑S1 radicular pain”. On examination, Professor Hart noted muscle spasm in the lower back and marked restriction of movements. He expressed an opinion that since the total hip replacement the right hip pain had improved, but the plaintiff’s back pain had continued, and in his view had increased. Professor Hart regarded the plaintiff as being in significant discomfort with regard to his lumbar spine. This was confirmed on examination. The opinion expressed by Professor Hart in that report could have left a reader in little doubt as to his opinion:
“Based solely on the physical condition arising from the plaintiff’s back and right hip, he would certainly not be fit for his pre-injury duties. He is now aged sixty-five, has extensive degenerative changes in his lumbar spine with marked limitation of movement and evidence of irritation with muscle spasm. He has been out of the workforce for three years, had only a primary education, has limited English and has only performed heavy manual work. He was able to continue on light work with his previous employer until light duties were no longer available, but he would have a very limited work capacity on the open market. He is currently being investigated for his low back pain.
It was hoped that his right total hip replacement would have a beneficial effect on his right back pain, by increasing the mobility of his right hip and decreasing the pain. Unfortunately that has not eventuated.”[9]
[9]Exhibit 1, page 30
29 In Professor Hart’s third report on 30 October 2013 he opined that having viewed the MRI of the lumbar spine dated 11 October 2013 the findings correlated with his clinical diagnosis as expressed in his previous report, but without evidence of a radiculopathy. He agreed with the opinion expressed by Mr Nair that it would be highly unlikely that there would be any recommendation for surgical treatment.
30 Professor Hart’s final report to the defendant’s solicitors was dated 25 November 2013. He had at that time been asked to review vocational assessment opinions, which were prepared in September 2011 prior to the total hip replacement performed on 12 November 2012. In reviewing that material, Professor Hart commented:
“The vocational assessment report also indicated that he would be suited to monitoring roles, as a light process worker and machine operator, but would not be fit to load and unload the machines. I would agree with that assessment. To work as product assembler he would need a position where he could alternatively sit and stand, because his sitting and standing tolerances are very limited. These limitations are all related to his ongoing low back pain. He is also taking medication for his low back pain which would potentially inhibit his performance. His driving tolerance is only fifteen minutes and therefore he would need to have employment which was close to his home or be transported to or from work. ... He has a walking distance of 500 metres, but that is due to his back pain rather than his hip condition.”[10]
[10]Exhibit 1, 33d and 33e
31 Having reviewed the medical material relied upon by the defendant, it is tempting to question why this matter required any judicial determination. There is clear medical evidence available to the defendant that the plaintiff suffers from a work-related condition of spinal degeneration which has incapacitated him for his pre-injury duties and arguably for any suitable employment which would fit the definition in s5 of the Act. There is certainly no evidence that any of the jobs set out in the vocational assessment from 2011 would be suitable for the plaintiff without some modification.
32 I find that the plaintiff has no current work capacity and this is likely to continue for the foreseeable future. I also accept the plaintiff’s evidence that he intended to work beyond the age of sixty-five years and up to the age of 70. This is unsurprising, given that he had worked in the one employment for the first defendant for over forty-two years at the date he ceased work.
33 I do not believe it necessary or even helpful to consider the potential conflict of evidence concerning the matters deposed to by Deborah Boettcher in her affidavit sworn 26 November 2013[11] and the two-line handwritten resignation letter signed by the plaintiff on 26 March 2013.[12]
[11]Exhibit 1, 33f and 33g
[12]Exhibit AP, 129
34 This is a case where the plaintiff has continued to make himself available for work, which ceased after the first defendant had completed work on the Southbank site in 2010. Given the unchallenged evidence of his earning capacity prior to the February 2010 incident and the medical evidence of his current restrictions in the labour market, he clearly satisfies the test in s134AB (38)(e) in that I find his capacity to earn income in suitable employment has been destroyed. For the purposes of (38)(g) there is little doubt that the plaintiff attended, to the extent he was able, for the English language retraining course. One must question whether or not the completion of any such course would have made any difference whatsoever to the plaintiff’s capacity to obtain any alternative or additional employment. Given the plaintiff’s intention to work up to the age of 70 and his capacity to work 6 and sometimes 7 days earning approximately $2000 per week prior to 5 February 2010 I regard the loss of Mr. Markouris’ earning capacity as at least very considerable in consequences for him.
35 I am satisfied on the whole of the evidence that the plaintiff has suffered a total loss of earning capacity as a consequence of injury to his lumbar spine. It is therefore unnecessary to consider the consequences flowing from the plaintiff’s claimed injury to the right hip or in respect of the non-organic injuries relied upon for the purposes of paragraph (c) of the serious injury definition.
36 I grant leave to the plaintiff to commence common law proceedings for loss of earning capacity and pain and suffering in respect of injuries arising out of or in the course of his employment with the firstnamed defendant on or after 20 October 1999 and specifically in relation to the incident relied upon on 5 February 2010.
37 I will hear the parties in relation to formal orders and costs.
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