Pearson and Prosegur Australia Pty Ltd (Compensation)
[2019] AATA 823
•8 May 2019
Pearson and Prosegur Australia Pty Ltd (Compensation) [2019] AATA 823 (8 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5831
2018/5832
Re:Richard Pearson
APPLICANT
AndProsegur Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:8 May 2019
Place:Perth
The Respondent’s applications to dismiss applications 2018/5831 and 2018/5832 on the basis that the Tribunal does not have jurisdiction are dismissed.
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Deputy President Boyle
CATCHWORDS
WORKERS’ COMPENSATION – soft tissue injury – claim made – decision under s 62 Safety, Rehabilitation and Compensation Act 1988 (Cth) – application to dismiss on the basis that the Tribunal does not have jurisdiction – jurisdiction found
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 16, 19, 60(1), 62(1), 62(4)-(5), 64
CASES
Re Lock and Comcare (Compensation) [2018] AATA 2386
REASONS FOR DECISION
Deputy President Boyle
8 May 2019
THE APPLICATIONS
An application is made by the Respondent in each of the proceedings for the dismissal of the Applicant’s claims on the basis that the Tribunal does not have jurisdiction to review the decisions.
THE HEARING
The applications for dismissal were heard on 12 April 2019. The Applicant was represented by Mr Adam Stewart and the Respondent was represented by Ms Ann McMahon.
The material before the Tribunal at the time of the hearing was:
·Applicant’s submissions in reply dated 22 March 2019 (A1);
·Submissions on jurisdiction dated 24 January 2019 (A2);
·Documents to be relied on at hearing dated 25 March 2019 (A3); and
·Respondent’s submissions on jurisdiction dated 6 February 2019 with Annexures A, B and C (R1).
The Tribunal also had before it the Tribunal documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T1-T106).
Application 2018/5831 – incapacity
In these proceedings the Applicant seeks the review of the reviewable decision of
16 August 2018 (T93) (the reviewable decision) which affirmed the determination of
26 June 2018 (T58) (the determination) that the Respondent was not presently liable to pay compensation in the form of incapacity benefits in respect of “soft tissue injury affecting the neck shoulder musculature on the left” sustained 30 January 2018 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).The background set out in the following paragraphs is taken from the reasons for decision (T93/276-282) which accompanied the reviewable decision (T93/274-275).
The Applicant was employed by the Respondent as an armoured vehicle operator in Perth, Western Australia, from late 2015.
The Applicant claims that on 30 January 2018 he sustained an injury when he was attempting to support the front bumper of a work vehicle outside the Kwinana Hub Shopping Centre. The front bumper had come adrift on the passenger side of the truck. Whilst supporting the bumper and walking the truck to a safe location as it was being driven by a co-worker, the front wheel of the truck clipped the Applicant’s foot causing him to fall backwards onto the bitumen road.
The following day the Applicant experienced pain and tingling in his left arm, and sought treatment from his general practitioner, Dr Garry Vanderveen. Dr Vanderveen diagnosed him as suffering from left shoulder pain, neck pain and tingling in his left palm.
Dr Vanderveen certified the Applicant as fit to undertake suitable duties, and referred him to Dr Peter Silbert, consultant neurologist, to undergo nerve conduction studies.On 2 February 2018 the Applicant lodged a claim for compensation under the provisions of the SRC Act in respect of an injury described as “left arm injury” with a date of injury of 30 January 2018.
On 12 February 2018 the Respondent accepted liability to pay compensation under the SRC Act for “soft tissue injury to the left arm” occurring on 30 January 2018.
Dr Silbert provided an EMG report on 6 February 2018 and an MRI scan was also undertaken on 12 February 2018. On 17 February 2018 Dr Vanderveen provided the Respondent with a report. Dr Vanderveen diagnosed the Applicant as suffering from “soft tissues injuries shoulder and neck”. Dr Vanderveen did not think the Applicant had sustained a neural injury, although considered that a “stinger” type injury (a “nerve pinch” injury suffered predominantly by athletes in high-contact sports) had possibly occurred. He noted that the symptoms the Applicant had originally complained of in his left hand had resolved. Dr Vanderveen prescribed Panadol, Voltaren and Mersyndol, the use of heat pack, physiotherapy and exercise based treatment. Dr Vanderveen thought the Applicant was fit for suitable duties that did not include repetitive lifting actions and above shoulder height work. He expected the Applicant to be fit to resume pre-injury duties six weeks post injury.
From March 2018 onwards the Applicant was seen by various medical and health practitioners including a physiotherapist and a consultant orthopaedic surgeon. Various investigations were carried out to determine whether there was bony or neurological injury or just soft tissue injury. The Applicant also received treatment.
In a determination dated 4 April 2018 the Respondent changed the description of the Applicant’s compensable injury to be “soft tissue injury affecting the neck shoulder musculature on the left” to more accurately reflect the medical evidence.
In a report dated 1 May 2018, Mr Garry Sutijono, physiotherapist, wrote that the Applicant had been making slow but good progress over the last few months, and had been back at work for 40 hours a week for the last two weeks on restricted duties. On examination the Applicant was able to achieve full range of motion with minimal pain. The Applicant had some tenderness and tightness of the upper trapezius depending on the amount of work undertaken.
In a further letter dated 8 May 2018, Mr Sutijono thought the Applicant’s prognosis was “slow recovery due to nature of injury but should have full function by end of treatment”. He recommended a further 6 to 10 physiotherapy sessions, once or twice per week.
In a medical certificate dated 31 May 2018, Dr Vanderveen certified the Applicant as “suitable for driving duties x 4 days. 1 day transactioning Wednesday increasing as per RTW [return to work]”. Dr Vanderveen recommended the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises.
On 31 May 2018, Dr Fredrick Phillips, consultant orthopaedic surgeon, provided a supplementary report. Dr Phillips noted that the Applicant had increased his work capacity since he last examined him, and that he was working almost full-time. The Applicant reported some difficulty with working the handbrake and gear shifting on certain vehicles. He reported a feeling of clicking and bruising and some discomfort/pain in the region of the shoulder. The Applicant said that he suffered from fatigue around the left shoulder.
Dr Phillips noted that physiotherapy continued once a week. An MRI scan dated 10 May 2018 confirmed an intact rotator cuff and a mild subacromial bursal thickening. Dr Phillips commented:
It is possible that under the circumstances described [you] suffered a minor soft tissue injury around the cervical spine but also at the shoulder.
…
It is possible that the injury as described provoked a mild subacromial bursitis, the symptomology of which is now becoming more clear.
If the bursa as demonstrated on the MRI scan is indeed the cause of [your] symptoms then [you] should respond rapidly to a single steroid injection.
Dr Phillips diagnosed the Applicant as suffering from mild subacromial bursitis, which he expected would resolve after a steroid injection, although he noted that very occasionally a second or third injection may be considered. Dr Phillips thought that the Applicant would be fit to return to his pre-injury duties as an armoured vehicle operator within two weeks of a successful steroid injection.
The Applicant underwent a steroid injection to his left shoulder on 8 June 2018.
In a medical certificate dated 14 June 2018, Dr Vanderveen certified the Applicant’s condition as “suitable for driving duties x 4 days. 1 day transactioning”. Dr Vanderveen recommended that the Applicant take Voltaren/Panadol/mersyndol, physiotherapy treatment and home exercises.
On 26 June 2018, the Respondent determined that it was no longer liable to pay incapacity payments pursuant to section 19 of the SRC Act for “soft tissue injury affecting the neck shoulder musculature on the left” because the Applicant had successfully returned to his pre-injury hours several weeks beforehand.
Dr Rob Boland, specialist musculosketetal physiotherapist, prepared a report dated
4 July 2018. Dr Boland wrote that he thought it was likely that the Applicant had sustained a “stinger” type injury, “the natural course of resolution for which was for a gradual resolution over time”. Dr Boland thought it reasonable that the Applicant undergo a small amount of physiotherapy treatment and return to work on a graduated program.
An ultrasound of the left shoulder dated 5 July 2018 was reported as showing:
Moderate subacromia/bursal thickening with signs of impingement suggestive of bursitis. No rotator cuff tear. Small focus of calcification in the subscapularis tendon. This likely reflects mild calcific tendonitis.
In a medical certificate dated 12 July 2018 Dr Vanderveen certified the Applicant as being “suitable for driving duties x 4 days. 1 day half transactioning/half driving.” Dr Vanderveen recommended that the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises. Dr Vanderveen also referred the Applicant for a second steroid injection (booked for 16 July).
In his request for reconsideration of the determination of 26 June 2018 the Applicant said:
I would like to appeal against the decision for my incapacity payments to stop.
I feel that this decision has been made prematurely as I am still suffering with claimed injury. I need to note that the letter dated 26 June 2018 stating under terms of decision 1, Prosegur is not presently liable to pay compensation in the form of incapacity benefits in respect of your accepted soft tissue injury affecting the neck and shoulder musculature on the left sustained on 30 January 2018 pursuant to section 19 of the SRC Act.
As my injury is still a problem and a company doctor giving medical evidence that I can work as per return to work schedule, in which I complete with extreme pain [sic].
When I attend doctors [sic] appointment the doctor has continued to say that I am better to work with injury than sitting at home making it worse.
As my only duties are driving the use of manual vehicles and the use of left arm the injury has sustained pain up to and including this morning.
My physiotherapist from Flinders Lane Physiotherapy in Rockingham has on several occasions spoken with the insurance company members and has stated that I can work hours but with extreme pain.
As I am unable to compete [sic] a full day without pain as per pre injury hours I feel that I am doing this injury more harm.
The evidence to stop incapacity payments is due to medical evidence of Dr Phillips is premature as at this time I had not had a cortisone injection to the injured shoulder.
Also stating that the neck shoulder musculature on the left (7) would resolve within 2 weeks of a successful injection. The injection did not work and in fact I now have a clicking noise to the injured shoulder, which was not apparent prior to injection.
My second injection that was completed on the 16 July 2018 at this time has not worked.
As I am currently still having treatment to my injured shoulder I wish your decision to be reversed.
In a medical certificate dated 23 July 2018 Dr Vanderveen certified that the Applicant was “suitable for driving duties 4 days. 1 half day transactioning/half driving”. Dr Vanderveen recommended that the Applicant take Voltaren/Panadol, physiotherapy treatment and home exercises. Dr Vanderveen commented that the “second steroid injection of subacromial bursa [had] not helped”. He noted the Applicant was to be referred to Professor Allan Wang, orthopaedic surgeon, for review.
On 27 July 2018 the Applicant sent an email to his supervisor noting “I... would like to advise you of my resignation dated 27th July 2018. The reason for my resignation is due to my mental health, attached is a medical certificate for you per usual. The continued bullying and harassment due to my injury has helped with this decision. My last day will be 10 August 2018.” The Applicant provided a medical certificate from Dr Biju Bhargavan, general practitioner, dated 27 July 2018 which read: “This is to certify that Mr Richard Pearson is unable to work from 27/07/2018 to 3/08/2018 inclusive due to a medical condition.”
From 19 February 2018 to 10 June 2018, with the exception of the week 23-29 April 2018, the Respondent made weekly workers’ compensation payments. The Respondent also made a workers’ compensation payment for the week 15-22 July 2018 (see Annexure A to Respondent’s Submissions).
The determination of 26 June 2018
The determination of 26 June 2018 (T58) was in the following terms:
Prosegur is not presently liable to pay compensation in the form of incapacity benefits in respect of your accepted soft tissue injury affecting the neck shoulder musculature on the left sustained on 30 January 2018 pursuant to section 19 of the SRC Act.
The determination was accompanied by reasons for decision (T58/178-179). The reasons for decision, having gone through the history of the work incident, the injury suffered and the medical evidence, comes to the conclusion:
12.In considering your entitlement to compensation, I am mindful that section 19 of the SRC Act contemplates the payment of incapacity benefits to an employee where an injury results in an incapacity for employment.
13. Based on the medical evidence at hand, I am not satisfied that you continue to suffer from any incapacity for employment resulting in any loss of income. I note that you are fit to work your pre injury employment for your pre injury hours with only minor restrictions on the duties you perform.
(T58/179)
The determination (T58/176) contained a section headed “Notice of Your Rights” which advised that “Your rights and obligations under the SRC Act are explained in the attached information sheet, headed ‘What do I do if I don’t agree with this decision?’”. That document has not been included in the T documents provided by the Respondent.
On 27 June 2018, the day after the determination, the Respondent wrote to the Applicant (T59). The opening paragraph of that letter was as follows:
To assist in the management of your claim, we have made an appointment for you to be medically examined by Dr Frederick Phillips on 20 August 2018…
The letter of 27 June 2018 further advised the Applicant that “…your rights to compensation under the SRC Act… may be suspended until the examination takes place” if the Applicant failed to attend the appointment with Dr Phillips.
It would seem that the Respondent as at 27 July 2018 still considered the Applicant to have a claim for compensation. In that regard I also note that the Applicant had provided a WorkCover WA Progress certificate of capacity dated 14 June 2018 (T56) certifying partial incapacity from 14 June 2018 to 28 June 2018. This certificate was in the same form as the WorkCover progress certificates of capacity that had been provided by the Applicant over the preceding months (T14, T21, T24, T29, T32, T37, T42, T48, T51) which, it would appear, were accepted by the Respondent as claims for the purposes of the SRC Act given that weekly payments had been made (see [30] above). WorkCover Progress certificates in the same form continued to be provided after 26 June 2018 (T60, T72, T75, T79, T88, T94).
The reviewable decision of 16 August 2018
The decision of 16 August 2018 (T93), which describes itself as a reviewable decision, sets out what happened after the determination was made on 26 June 2018. It says that:
On 26 June 2018, Prosegur determined that it was not presently liable to pay compensation in the form of incapacity benefits in respect of “soft tissue injury affecting the neck shoulder musculature on the left” sustained 30 January 2018 pursuant to section 19 of the SRCA.
On 10 July 2018 you requested a reconsideration of the determination dated
26 June 2018.
Reviewable Decision
I have reconsidered the determination dated 26 June 2018 in accordance with the provisions of section 62 of the SRCA.
I have decided to affirm the determination dated 26 June 2018.
Reasons for our Decision
Attached is a notice explaining the reasons for the decision.
Notice of Your Rights
Your rights and obligations under the SRCA are explained in the attached information sheet headed ‘What do I do if I do not agree with this decision?’.
…
Rights of Appeal
If you disagree with the decision above, you may make an application for review of the decision to the Administrative Appeals Tribunal pursuant to s 64 of the SRCA. Pursuant to s 29 of the Administrative Appeals Tribunal Act 1935 (Cth), any application for review must be made within 60 days of your receipt of this notice…
(Original emphasis.)
Again the document apparently headed “What do I do if I do not agree with this decision?” was not included in the T documents. However, a document headed “What do I do if I do not agree with the reviewable decision?” (emphasis added) was included with the documents lodged by the Applicant with the application for review. I assume that that is the document described in the Respondent’s letter of 16 August 2018 as the document headed “What do I do if I do not agree with this decision?” The document that apparently accompanied the Respondent’s decision of 16 August 2018 sets out the process for seeking a review of a decision in the Tribunal.
In relation to the statement in the reviewable decision that the Applicant requested a reconsideration of the determination dated 26 June 2018 on 10 July 2018, there is no document dated 10 July 2018 in the T documents. I assume that the reference to a request for reconsideration of the determination dated 10 July 2018 in the reviewable decision is meant to be a reference to the Applicant’s document of 21 July 2018 (T78) which did request reconsideration of the determination of 26 June 2018 and set out the grounds relied on by the Applicant.
Respondent’s Submissions
The Respondent’s submission on jurisdiction in relation to application 2018/5831 is set out in paragraph 21 of its Submissions on Jurisdiction dated 6 February 2019 as follows:
On the application of the reasoning in Lock, in the absence of a claim for compensation made immediately prior to, or as at, the date of the determination dated 26 June 2018, the Tribunal does not have jurisdiction to consider the reviewable decision in application 2018/5831.
The case law relied on by the Respondent is set out in its Submissions as follows:
16.On 23 July 2018, Deputy President Boyle of the Administrative Appeals Tribunal (the Tribunal) published his reasons for decision in Re Lock and Comcare (Compensation) [2018] AATA 2386 (Lock). The Deputy President decided that, in respect of one of Ms Lock’s applications, the Tribunal did not have jurisdiction to review a decision. The effect of the reasoning for that decision was, in short, that the Tribunal does not have jurisdiction to review a decision pursuant to section 16 (medical expenses) or section 19 (incapacity payments) unless there is a specific claim made under one of those sections to which the decision responds: Lock at [71]-[87].
17.In his reasons for decision in Re Weston and Cleanaway Operations [2018] AATA 3740 (Weston), Deputy President Boyle applied the same reasoning as he did in Lock, but a different outcome was reached. The Deputy President decided that the Tribunal had jurisdiction to consider the relevant reviewable decision on the basis that, whilst the relevant determination was expressed in broad terms of there being no present liability under sections 16 and 19 of the SRC Act, the Tribunal was, in the particular circumstances of that case, able to identify specific claims to which the decision responded.
18.In the subsequent decision of Re Hickey and Australian Postal Corporation [2018] AATA 3930 (Hickey), Member Gallagher applied the same reasoning as in Lock and decided that the Tribunal did not have jurisdiction to consider one of Mr Hickey’s applications which involved a no present liability determination pursuant to sections 16 and 19 of the SRC Act. In that matter, unlike Weston, the Tribunal was unable to identify any specific claims in respect of medical treatment or incapacity to which the decision responded.
Consideration
The Respondent’s analysis of the decision in Lock and Comcare [2018] AATA 2386 (Lock) is, with respect, concentrating on the wrong point. As is set out in [79] of the decision in Lock, the Tribunal’s jurisdiction to review decisions arises under s 64 of the SRC Act. The jurisdiction is to review “reviewable decisions” which are defined in s 60(1) of the SRC Act to mean “a decision made under subsection 38(4) or section 62”. In the decision in Lock the exercise that I was undertaking was trying to determine whether there had been a decision under s 62 of the SRC Act, in particular, whether the “decision” that was the subject of that application was one under s 62 of the SRC Act. Because of practices adopted by some insurer respondents, it is not always clear whether what is being issued by them is a determination, as that term is used in the SRC Act, or a decision, as that term is used in the SRC Act and, more particularly, whether it is a decision made under s 62 of the SRC Act.
In the case of Lock the exercise that I was undertaking in seeing whether a relevant claim had been made by the Applicant was, primarily, part of determining whether the “decision” that was the subject of the application for review was a decision under
s 62 of the SRC Act. In Lock I was not satisfied that the decision the subject of the application for review was a decision under s 62 of the SRC Act because it was not clear that it was a reconsideration of a determination on its own motion under s 62(1) of the SRC Act because a relevant original determination of which the “decision” could be a reconsideration could not be identified (at [77]), nor was I satisfied that it was a decision under s 62(4)-(5) resulting from a relevant claim being rejected and a request for reconsideration being made under s 62(2)-(3) of the SRC Act (at [78]). In the case of Lock the “decision” was a general statement of there being no liability and did not identify itself as being made under s 62 of the SRC Act.
The present case is very different. It is clear that the decision the subject of this application was a decision under s 62(4)-(5) of the SRC Act. The Respondent’s submissions and the relevant documents make that clear. The Respondent’s submissions are as follows:
·Paragraph 2 – based on the medical evidence a determination was made;
·Paragraph 3 – the Applicant requested a reconsideration of the determination; and
·Paragraph 5 – “By a reviewable decision dated 16 August 2018 the Respondent affirmed the determination”.
Not only do the steps set out above from the Respondent’s submissions describe the steps leading to a decision under s 62(4)-(5) of the SRC Act, but the submissions themselves describe the decision as “a reviewable decision”.
The relevant documents also make it clear that the process leading to the decision of
16 August 2018 was the process under s 62 of the SRC Act. The reviewable decision (T93) specifically identifies itself in the heading as a “Section 62 – Reconsideration of determination”. While it does not go to the extent of identifying itself as a reviewable decision under s 62(5) of the SRC Act, given the steps that lead to the issue of the reviewable decision, that is clearly the case.
I am satisfied that the decision of 16 August 2018 was a decision made under s 62 of the SRC Act and that the Tribunal therefore has jurisdiction to review that decision under
s 64 of the SRC Act.
Not that it is necessary given my above finding, I also note that insofar as the Respondent seeks to argue that there was no current claim made by the Applicant at the time of the determination, that was not the case. Even if one accepts that there needs to be a claim for payment of compensation under s 16 of the SRC Act for the day on which the “present liability” determination is made, which seems to be the Respondent’s argument, in the present case there was a claim in the form of the WorkCover WA Progress certificate of capacity dated 14 June 2018 (T56) certifying partial incapacity from 14 June 2018 to
28 June 2018 (see [36] above). Certificates in the same form had been accepted by the Respondent as being claims upon which payments were made on a weekly basis up to
10 June 2018 (see [30] above).
Application 2018/5832 – medical expenses
The Respondent in its submissions describes this application and the background to the application as follows:
10.By a determination dated 30 August 2018, the respondent denied present liability to pay compensation to the applicant in respect of medical expenses pursuant to section 16 of the SRC Act. That decision was made in respect of the injury mentioned at paragraph 1 above.
11.Based on the evidence to hand – specifically, specialist medical evidence of Mr Fred Phillips (orthopaedic surgeon) – the respondent was not satisfied that the applicant required medical treatment in relation to the injury.
12.On or about 7 September 2018, the applicant’s solicitors sought a reconsideration of the determination dated 30 August 2018.
13.By a reviewable decision dated 26 September 2018, the respondent set aside the determination dated 30 August 2018. In substitution, the respondent accepted liability to pay reasonable pharmaceutical expenses and monthly GP reviews pursuant to section 16 of the SRC Act for the period from 30 August 2018 to 31 December 2018. The respondent decided, however, that liability to pay medical expenses pursuant to section 16 of the SRC Act would cease on and from 1 January 2019.
14.The applicant subsequently lodged with the Tribunal an application for review of the reviewable decision dated 26 September 2018.
The “injury mentioned at paragraph 1 above” referred to by the Respondent was the
“soft tissue injury affecting the applicant’s neck shoulder musculature on the left” (Respondent’s Submissions at [1]) for which liability was accepted.
The background and the Respondent’s legal submissions in respect of jurisdiction in this application are the same as those for application 2018/5831.
As with application 2018/5831, the relevant exercise to determine whether the Tribunal has jurisdiction is determining whether the decision of which review is sought is a decision under s 62 of the SRC Act. That is, is it a decision under s 62(1), being a reconsideration on its own motion, or a decision under s 62(4)-(5) of the SRC Act, being a reconsideration following a request for reconsideration by the Applicant? In the present case the Respondent’s own chronology set out in [49] above makes it clear that the decision the subject of the application for review was a decision under s 62(4)-(5) following a request by the Applicant for reconsideration.
As with the reviewable decision in application 2018/5831, the decision review of which is sought in application 2018/5832 identified itself as a decision under s 62 of the SRC Act. The decision of 26 September 2018 (T103), again a letter from Moray & Agnew Lawyers, in its heading identified itself as “Section 62 – Reconsideration of determination (medical treatment)”. As with the reviewable decision in application 2018/5831
(see [37] above), the Respondent’s lawyer’s letter of 26 September 2018 advised that:
I have reconsidered the determination dated 30 August 2018 in accordance with the provisions of section 62 of the SRC Act.
Clearly the decision the subject of this application is a decision made under s 62 of the SRC Act and, accordingly, pursuant to s 64 of the SRC Act, the Tribunal has jurisdiction to review that decision.
DECISION
The Respondent’s applications to dismiss applications 2018/5831 and 2018/5832 on the basis that the Tribunal does not have jurisdiction are dismissed.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle.
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Associate
Dated: 8 May 2019
Date of hearing: 10 April 2019 Counsel for the Applicant: Mr A Stewart Solicitors for the Applicant: Chapmans Barristers and Solicitors Counsel for the Respondent: Ms A McMahon Solicitors for the Respondent: Moray Agnew Representative for the Respondent: Mr G Lynch
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