Zlatanovski v Holcim (Australia) Pty Ltd

[2011] VCC 1193

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02695

TROY ZLATANOVSKI	Plaintiff
v
HOLCIM (AUSTRALIA) PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2011
DATE OF JUDGMENT:	5 August 2011
CASE MAY BE CITED AS:	Zlatanovski v Holcim (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1193

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lower back – whether the pain and suffering consequences were serious – offer of suitable employment – whether the plaintiff had the capacity to perform the tasks relevant to the offer – whether the loss of earning capacity consequences were serious: section 134AB (38)(c).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC	Maurice Blackburn
with M Belmar
For the Defendant	Mr P Trigar	Wisewould Mahony
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed 23 June 2010 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3          Mr J Mighell SC appeared with Mr M Belmar of Counsel for the plaintiff and Mr P Trigar of Counsel appeared for the defendant.

4          The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his lower back.

5          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• The plaintiff tendered his Court Book (“PCB”), pages 9-100: Exhibit A

• The defendant tendered its Court Book (“DCB”), pages 1-12; 29-95, and 185-268: Exhibit 1.

The Statutory Scheme

6          The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.

7          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-section (19)(a), sub-section (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe".
(f)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(g)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(h)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(i)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(j)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(k)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(l)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “serious” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

[3]             Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

8          I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s Background and the Incidents

9          The plaintiff was born on 5 June 1973. He is now thirty-eight years of age. He was born in Germany. He migrated to Australia when he was fourteen years of age in 1988. He lives with his domestic partner. Between them they have four children.

10        The plaintiff completed Year 12 at Atherton High School in Queensland. In 1992, he commenced employment as a casual labourer with the defendant. The position was made permanent in about 1994. In about 1997, he transferred from a plant in Queensland to a plant in Melbourne. In about 2003, he was promoted to the position of leading hand.

11        The plaintiff described the work which he was required to undertake for the defendant as being very physical work. He described that in some detail in his affidavit.[4]

[4]             PCB 10-14

12        The plaintiff suffered a number of injuries to his lower back in the course of his employment with the defendant. In summary they occurred as follows:

• The plaintiff first suffered injury to his lower back on 23 August 2000 when manually handling two moulds. He recovered reasonably quickly, after having some time off and going onto restricted duties for a short time.

• The plaintiff next suffered injury to his lower back on 5 October 2004. He used a pair of pliers to remove plastic lining in a pipe. The pliers did not grip, with the result that when he pulled hard on the plastic, the pliers slipped, causing him to fall backwards onto a concrete floor.

• The plaintiff next suffered injury to his lower back on 30 March 2005 whilst pulling a hoist. It became stuck. He tried to pull it again, with the result that he suffered injury to his lower back. He saw Dr Wilkinson, general practitioner. He had some physiotherapy treatment. He went onto restricted duties for a while. Eventually he recovered.

• The plaintiff next suffered injury to his lower back some time in 2006 as a result of undertaking some heavy lifting at his home. Eventually he recovered.

• The last injury the plaintiff suffered to his lower back was on 15 February 2007. He was using a pair of pliers to pull plastic out of the pipe in much the same way as he was working when he injured his lower back on 5 October 2005. On this occasion he experienced sudden and acute lower back pain, and left leg pain.[5]

[5]             PCB 12-14

The Plaintiff’s Medical Treatment

13        The plaintiff first saw Dr Wilkinson, general practitioner, on 1 April 2005 for the injury to his lower back. The history taken by Dr Wilkinson of the occasions when the plaintiff suffered injury to his lower back differ from the accounts given by the plaintiff in his affidavit.

14        Before the incident which occurred on 15 February 2007, Dr Wilkinson diagnosed that the plaintiff was suffering from musculo-skeletal lower back pain. He recommended that the plaintiff have physiotherapy and use medication. He reviewed the plaintiff on 6 April 2005 and noted that he had a full range of movement. He certified the plaintiff fit for normal duties.

15        In relation to the last incident, the plaintiff consulted Dr Wilkinson on 19 February 2007. He recorded that the plaintiff had suffered the sudden onset of lower back pain which spread to his left buttock and left thigh. He recommended the plaintiff have physiotherapy and take medication. He certified the plaintiff fit for modified duties for four hours per day. Dr Wilkinson reviewed the plaintiff on 26 February 2007, and then on 5 and 14 March 2007.

16        The plaintiff was referred by the defendant to Dr Wilkinson. The plaintiff had previously seen Dr Xu, general practitioner, in April 2006 at the Family Care Medical Centre, Mount Waverley. He saw him for work-related lower back pain. It was probably in relation to the lower back pain which the plaintiff suffered in 2006 referred to above.[6]

[6]             PCB 26

17        The plaintiff ceased seeing Dr Wilkinson after he was reviewed on 14 March 2007. He returned to the Family Care Medical Centre, Mount Waverley. He saw Dr Lahanis, who became his principal treating medical practitioner from that time on. The plaintiff first saw Dr Lahanis in October 2007. Dr Lahanis recorded a fairly long history of the nature of the plaintiff's work with the defendant which the plaintiff described as the cause of the lower back injury for which he was seeing Dr Lahanis.[7]

[7]             PCB 26

18        Dr Lahanis provided the plaintiff with WorkCover certificates which imposed restrictions on the work which the plaintiff should undertake, and he referred him for physiotherapy. Dr Lahanis referred the plaintiff for a CT scan which was taken on 7 September 2007. The radiologist reported that there was degenerative annular bulging of the lower two lumbar discs and that there were degenerative changes present involving the L5-S1 facet joints.[8] Dr Lahanis agreed with the findings of the radiologist.[9]

[8]             PCB 96

[9]             PCB 96

19        Dr Lahanis provided five medical reports in which he traced the treatment he provided the plaintiff from 7 September 2007 until his last report dated 31 May 2011.[10] There is nothing particularly controversial in what is recorded in any of those medical reports, and indeed, no challenge was made regarding the treatment provided by Dr Lahanis nor the opinion expressed by him relevant to his diagnosis of the injury and the plaintiff’s capacity to function.

[10]           PCB 26-31a

20        Dr Lahanis noted on a number of occasions that in order for the plaintiff to return to a level of work duties with the defendant, he needed regular physical therapy such as physiotherapy or osteopathy and a supervised gym program. Additionally, he noted that when therapy of that kind ceased, the plaintiff's tolerance to coping with full time work reduced.[11]

[11]           PCB 30, 31 and 31a

21        In his last report dated 31 May 2011, Dr Lahanis expressed the following opinion:

"1	I believe Troy will indefinitely be incapable of returning to full unrestricted duties as a direct consequence of his work-related lower back injury, having been determined by neurosurgeons to not be amenable to surgery which will therefore likely always be vulnerable to painful exacerbation if subjected to excessively heavy lifting over 10 kg at a time or [repetitive] lifting bending or twisting of the back.
2	With active rehabilitative measures he has adopted. I believe Troy is definitely capable of returning to restricted work of normal full times hours given the oppo[r]tunity to rest or stretch his back when required and avoiding [repetitive] bending, lifting or twisting of his back including limiting the lifting to less than or equal to 10 kg at a time.
3	Given the appropriate duties and work environment I believe [Troy] is capable of full-time work."[12]
(sic)

[12]           PCB 31a

22        Dr Lahanis referred the plaintiff to Mr Chan, neurosurgeon. The plaintiff saw Mr Chan on 26 February 2009. Mr Chan was provided with a plain x-ray taken on 7 September 2007, the CT scan already referred to and an MRI scan which was taken on 13 August 2008.[13]

[13]           The MRI scan is reproduced as PCB 98. It was commissioned by Mr Russell, general surgeon who examined the plaintiff for an insurer at DCB 9

23        Mr Chan was of the opinion that the plaintiff was suffering from mechanical axial lower back pain most likely related to an exacerbation of his degenerative lumbar spondylosis. He recommended, after the plaintiff had described to him of the usefulness of physiotherapy, that the plaintiff should continue with physiotherapy and sparing use of analgesia.[14] Mr Chan was of the opinion that the plaintiff did not have a capacity for work at the time he examined him. He added, in relation to the plaintiff's future capacity for work, that much depended upon review of the plaintiff, management of his condition in concert with a pain rehabilitation physician.

[14]           PCB 51

24        The plaintiff was treated by three physiotherapists, Mr Surkitt, Mr Sternfeld and Mr Levin. It is obvious from their short reports that the physiotherapy treatment they provided the plaintiff, together with the gym program which the plaintiff engaged upon, were beneficial to the plaintiff in maintaining a level of functioning.[15]

[15]           PCB 32-46

The Medico-Legal Opinions

25        Mr Mighell submitted that the opinions of the medico-legal examiners are consistent with the opinion expressed by Mr Chan. Mr Trigar did not cavil with that submission, and indeed, the conclusion I have reached after reading the medico-legal opinions is that the opinions of the medico-legal examiners are consistent with Mr Chan's opinion.

26        Mr Peter Wilde, orthopaedic surgeon, examined the plaintiff on 18 May 2011. He was of the opinion that the plaintiff had suffered an aggravation of lumbar spondylosis without radiculopathy. He considered his prognosis was poor. He did not consider that the plaintiff would be able to return to his full pre- injury work or other forms of physical or manual work. He considered that the plaintiff had a capacity for light duties work, and that he could undertake part time sedentary or light duties work of about 20 hours per week.[16]

[16]           PCB 77

27        Mr Russell, general surgeon, examined the plaintiff for the defendant on 12 February 2008; 25 July 2008 and 14 November 2008. He was of the opinion that the plaintiff was suffering from a degenerative process with a disc protrusion of L4-5. He considered that the plaintiff was fit for work, but not his pre-injury work, and that he had a capacity for work with restrictions. He considered that the plaintiff should avoid work involving a stooped posture. However, he could engage in work involving mild to moderate bending; no lifting of more than 10 kilograms on an intermittent basis; avoiding heavy pulling and pushing or continuous lifting, and if so he could work full-time.[17]

[17]           PCB 11

28        Mr Elsner, orthopaedic surgeon, examined the plaintiff on 12 May 2009 and 31 May 2010. He was of the opinion that the plaintiff was suffering from aggravation of lower lumbar degenerative changes. He considered that the plaintiff did not have the capacity for heavy labouring type work, but that he was fit for full-time work, but should avoid lifting of more than 15 kilograms on a regular basis which avoided rapid, repeated or prolonged below waist level bending activities and sitting in one position for lengthy periods of time.[18]

[18]           PCB 41

29        Mr Dooley, orthopaedic surgeon, examined the plaintiff on 6 June 2011. He was of the opinion that the plaintiff had aggravated underlying degenerative disc disease in his lumbar spine. He considered that the plaintiff would have difficulty carrying out heavy physical work and engaging in active impact leisure pursuits. He considered that he could undertake light physical work and clerical duties, and that he would have a capacity to undertake work as a ticket sales person, filing and registry clerk, receptionist, casual car park attendant or box office attendant.[19]

[19]           Each of these job descriptions were referred to in vocational reports tendered by the defendant at DCB 49-95, amongst other job descriptions.

30        The consistency in the medical opinions is that the plaintiff had evidence of degenerative changes in his lumbar spine; the degenerative changes were aggravated by the nature of the heavy work which the plaintiff was required to perform for the defendant; the injury constituted by the aggravation most likely precludes the plaintiff from undertaking his pre-injury work; the injury will permit the plaintiff to undertake suitable work either full-time or on restricted hours with the imposition of work restrictions, and that it is likely that the plaintiff will require similar therapy to what he has undergone in the past with the use of analgesia as well.

Serious Injury

Pain and Suffering

31        The only issue which falls for my determination is whether the consequences meet the statutory test. No issue was raised relevant to whether the plaintiff had suffered a compensable injury, whether it resulted in an impairment of function of the plaintiff's lower back, or whether the impairment was permanent.

32        The plaintiff has endured pain in his lower back intermittently since 2005 and persistently since 2007. In his affidavit sworn 1 February 2010, he describes having lower back problems since 2007 which vary in intensity. Additionally, he suffers pain down into his left leg, with some numbness and pins and needles. He attempts to mow the lawns, do the family shopping and assist with the cleaning of his home; however, light house work is enough to cause an increase in the pain in his lower back. He has difficulty driving a car for more than 30 to 45 minutes. He cannot stand or sit for too long. He is unable to sit from more than 30 to 45 minutes, nor stand for more than 45 minutes. He is restricted in playing with his children. He avoids undertaking activities which are too vigorous. He attempts minor renovations to his home, but slowly and bit by bit. He suffers some interference with his sleep now and then.[20]

[20]           Transcript 9

33        The plaintiff has had quite a bit of medical treatment. He has been under the care of Dr Wilkinson and then Dr Lahanis from a time shortly after February 2007. He has had a significant amount of therapy in the form of physiotherapy in the main, and has needed analgesia to reduce the pain from which he suffers. The medical evidence supports the conclusion that the plaintiff has a painful condition which has positively responded to the types of therapy he has undertaken, and indeed, there are opinions that he should continue having that sort of therapy.

34        The plaintiff is presently using Tramadol and Panadeine Forte to gain pain relief. He takes one Tramadol in the morning and one in the evening, and between 4 to 6 Panadeine Forte per day. It is a large volume of painkilling medication. The volume of medication he has taken has caused a secondary problem. He has suffered constipation which has required him to take other medication to control it.[21] He remains under the care of Dr Lahanis.

[21]           Transcript 9

35        In Sutton v Laminex Group Pty Ltd, Tate JA,[22], in the course of delivering the principal judgement of the Court of Appeal, referred to and adopted the reasoning of the President in Haden Engineering Pty Ltd v McKinnon.[23] In determining the pain and suffering consequences contended for by the plaintiff, I have done so in accordance with the guidance provided by the Court of Appeal in both of these decisions.

[22] [2011] VSCA 52 at paragraphs 46-50

[23] [2010] VSCA 69 at paragraphs 10-17

36        Firstly, the plaintiff struck me as being an entirely truthful witness. There was very little about the evidence contained in his affidavits or in his oral evidence which was overly contentious, and, even to the extent that it was put in issue, I accept his evidence in whole.

37        Secondly, what is abundantly clear is that the plaintiff suffered an injury and impairment of function which has resulted in him suffering persistent pain since February 2007.

38        Thirdly, the plaintiff has had a significant amount of medical and paramedical treatment. I accept the evidence of those medical practitioners who recommend that the plaintiff should continue to have physiotherapy and use analgesia as a means of enabling him to tolerate the pain he experiences.

39        Fourthly, I consider that there is little controversy in the medical evidence that the plaintiff has suffered an aggravation of degenerative changes, perhaps with some disc involvement, which has rendered him incapacitated for his pre- injury work and outfits him for suitable employment with restrictions.

40        Fifthly, the objective evidence of the extent of the plaintiff's injury and the pain it produces is well demonstrated in the plaintiff’s evidence in the medical opinions.

41        Lastly, the plaintiff's injury and the impairment it causes, in terms of loss of enjoyment of life, has produced consequences which have affected nearly every aspect of the plaintiff's social, domestic and recreational routine. This has been the case since at least February 2007, and the inference that I draw from the medical opinions is that those consequences will persist for the foreseeable future. Furthermore, the plaintiff is now significantly reliant on medication and paramedical treatment to control the pain he experiences.

42        In these circumstances, the conclusion I have reached is that the plaintiff’s pain and suffering consequences easily meet the statutory test. I have reached that conclusion after making the relevant comparison which I have referred to above.

Loss of Earning Capacity

43        The plaintiff was dismissed from his employment with the defendant on 2 April 2008. The plaintiff left the defendant's premises early one day. He arranged for another worker to clock him off at the time when the plaintiff would normally have left.

44        The plaintiff and the other worker were caught. Initially the plaintiff lied, informing the defendant that he had in fact left for the day, and then, realising that he had not clocked off, returned and then clocked off. He later admitted the lie and that he had another worker clock him off. He was disciplined by being dismissed, as was the other worker.[24]

[24]           Transcript 25-26

45        Prior to the occasion when the plaintiff was dismissed he was working on modified duties. He was undertaking office work, and did some relieving work on the factory floor. On the day he was dismissed he was working on the factory floor in a relieving role.[25]

[25]           Transcript 10-11

46        Mr Trigar submitted that if the plaintiff had not been dismissed then he would have been offered the job as a production clerk with the defendant. His duties would have been exclusively administrative in nature. The defendant had engaged a firm known as Rinker Pty Ltd to assist the plaintiff in his rehabilitation. The documents which Mr Trigar referred me to demonstrate quite clearly that the plaintiff was in receipt of an offer of suitable employment dated 3 February 2008.[26] The tasks he was required to perform were exclusively administrative.[27] The actual tasks were not only depicted in photographs of the actual workplace but in detailed assessments and return to work plans prepared by Rinker Pty Ltd.

[26]           DCB 199

[27]           DCB 200

47        The plaintiff conceded that the offer of work as a production clerk had been offered to him, and that he had discussed it with Dr Lahanis, who was enthusiastic about the plaintiff taking up the offer. Whilst the plaintiff did not say he could do that job, it seems to me that he probably could have taken up that job successfully.

48        Mr Trigar referred me to a bundle of Certificates of Capacity, most of which were provided by Dr Lahanis.[28] The last in the bundle is dated 21 February 2010. It certifies that the plaintiff was fit for full-time duties from 18 February to 15 March 2010. The opinion expressed by Dr Lahanis, referred to in paragraph 21 above, clearly demonstrates that Dr Lahanis was of the opinion that the plaintiff is presently fit for a job of that kind.

[28]           DCB 241-268

49        The plaintiff's objective assessment of his own capacity for work left me with the impression that he believes that he has a capacity for work in a job similar to a production clerk. The plaintiff conceded that he could probably undertake work as a meter reader or a car park attendant, but not light assembly work if it was repetitive.[29] During re-examination, however, the plaintiff was asked whether he could undertake specific postural changes such as bending to read water meters et cetera. He said he would have difficulty doing that, and as an example he said that when he engages in share trading in front of his computer he finds the sitting for some hours makes his back very sore.[30]

[29]           Transcript 27-29

[30]           Transcript 31-32. These jobs and the description of them are referred to at DCB 49-95

50        The onus, in relation to loss of earning capacity is borne by the plaintiff pursuant to subsection (19)(b). The onus must incorporate not only proof by the plaintiff of what he says he can and cannot do in terms of working in identifiable jobs, the opinion of his treating medical practitioners, and also any relevant medico-legal opinions, and, if he is able to work, the earnings he is able to obtain for the purpose of determining whether he can establish a loss of earning capacity of 40 per cent or more.

51        I am satisfied that the plaintiff was capable of undertaking the job as a production clerk with the defendant at the time it was offered. There is very little in the plaintiff's evidence which militates against that conclusion, and I am fortified in reaching that conclusion because of the certification provided by Dr Lahanis, and the opinion he expressed regarding the plaintiff's capacity to return to suitable work.

52        Part of the onus borne by the plaintiff is to establish that if he took on the job as a production clerk that he would nonetheless have suffered a loss of earnings of 40 per cent or more. There was no evidence adduced by the plaintiff regarding what earnings he would receive as a production clerk. Mr Mighell submitted that the defendant had not produced those figures, but that would be to shift the legal and evidentiary onus onto the defendant when it is borne by the plaintiff in both respects.

53        Mr Mighell also submitted that I should accept the wage rate referred to by Ms Angel of an hourly rate of $18.21 gross per hour. However, that hourly rate is not referable to employment as a production clerk with the defendant, but to occupations covered by the Manufacturing and Associated Industries and Occupations Award 2010. There is no evidence that the job of a production clerk would be under the award, nor that the plaintiff would be paid only in accordance with the award.

54        In conclusion, firstly, I am satisfied that the plaintiff has a present capacity to undertake suitable employment, and in particular, as a production clerk full time. Secondly, I do not accept that the work of a production clerk would require the plaintiff to be committed to long periods of sitting and standing. It is likely that the plaintiff would be able to alter his posture frequently in the course of the working day. The tasks required of him would be undertaken in an office and not on the factory floor.[31]

[31]           The office arrangements are illustrated at DCB 201-202

55        For the foregoing reasons, the plaintiff's claim that he has suffered the relevant degree of loss of earning capacity consequences is not made out.

Conclusion

56 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the defendant.

57        After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

- - -