Aggarwal v Fang

Issues 2The defendant disputed that he had been negligent as claimed by the plaintiff. He asserted in the alternative, that there had been contributory negligence on the plaintiff's part. The defendant also contested the plaintiff's entitlement to damages.

Facts 3In the paragraphs that follow, after dealing with the issue of credit, I set out my findings of fact concerning the plaintiff's pre-injury situation, the circumstances of the accident, the plaintiff's injuries, the medical assessments that followed, the plaintiff's resultant disabilities and the issue of mitigation.

Credit 4The contest on liability required an assessment of the reliability of the respective testimonies given by the plaintiff, his passenger, Mr Sambandham, and the defendant. There was no suggestion that the plaintiff had in any way exaggerated his account of the effects of the accident upon him. Although the conflicting versions of the events of the collision were irreconcilable, I formed the impression that all witnesses did their best to provide a truthful account of the event in question, to the best of their respective recollections.

Plaintiff's background and pre-injury health 5The plaintiff was born in 1980. He is presently a resident of India. He was aged almost 31 years at the time of the accident. He is presently aged 32 years. At the time of the accident he was resident in Sydney. He holds tertiary qualifications in commerce and has worked for 10 years in the information technology industry in the financial sector. At the time of the accident he was employed by an IT company called Oracle to provide information technology services for the financial services company, Citibank. At the time of his injury he was in receipt of earnings of between $1300 and $1400 per week net. 6Before the accident the plaintiff enjoyed general good health. He had occasion to consult his general practitioner, Dr Maria Li, for several episodes of neck discomfort in December 2008 and May 2009. On the latter occasion he also experienced some thoracic pain due to strain. Neither of these problems appeared to be related to trauma and there is no evidence that those episodes were of any lasting consequence. Over the course of time, in the period from May 2008 until the time of the subject accident, the plaintiff had also consulted his general practitioner for a variety of minor ailments and infections. None of those matters have any relevance to the damages claimed in these proceedings.

Accident circumstances 7Immediately before the accident, the plaintiff was driving in a generally easterly direction in Burlington St in Crows Nest. He had been circling around the streets of that area looking for a place to stop so his passenger could be set down in order to go and purchase some take away food from a nearby Indian restaurant. 8The plaintiff stated that as he drove past the entrance to Willoughby Lane in Burlington St, which was in a general easterly direction, he stopped his vehicle and reversed back a short distance in order to position the vehicle to enable him to then drive forward into a kerbside position to allow his passenger to alight. The distance travelled in reverse was about one to two metres. He stated that during the reversing phase of that manoeuvre, the defendant, whose taxi had been approaching from the east and was facing generally west in Burlington St, executed a right turn from Burlington St into Willoughby Lane and behind the plaintiff's reversing vehicle, at which time a collision then occurred. The impact was variously described as heavy or a bang. In the circumstances, the speed of the respective vehicles was difficult to determine because of the rapidly occurring events. 9The plaintiff explained that he had stopped his vehicle beyond Willoughby Lane by one or two metres before he put his car into reverse. He said that before doing so, he looked around, including in his mirrors. He stated that as he was reversing, the defendant's taxi approached from the opposite direction without any suggestion that it was turning, yet it turned behind him, and a collision occurred. The plaintiff's impression was that the defendant's vehicle was "easily around 30, over 30 kilometres" per hour. The Plaintiff stated that in the conversation that ensued between the drivers, the defendant had said that he had seen the plaintiff reversing and thought that he would be able to make the turn. 10In cross-examination the plaintiff stated that he had seen the taxi for the first time only after he had commenced to reverse and at that time, the taxi was already in the process of turning behind him. The plaintiff denied seeing the taxi waiting to turn in the middle of the road with the right turn indicator showing. He stated that he saw the taxi for three or four seconds before the impact. He said the defendant saw him in this time when he was reversing. 11The plaintiff was cross-examined on the content of the personal injury claim form which he signed on 29 April 2011, and which was submitted on his behalf to initiate the present claim: Exhibit "1". He stated that the version of the events of the accident as contained in the form was not entirely correct, notwithstanding that he had signed the form. He stated that the details had not been correctly recorded by the person who had filled in the form on his behalf. 12The plaintiff explained that the incorrect details related to the statement that he was proceeding to reverse into a parking spot at the time the collision occurred, and that the taxi was turning left into Willoughby Lane. The plaintiff stated that he had not read the statement carefully before signing it, notwithstanding it incorporated a statutory declaration. Having heard the plaintiff's explanations in this regard, I accept that the claim form contains an incorrectly recorded factual account, as explained by the plaintiff. 13Plainly, the incorrect factual summaries contained in the claim form and in the statement of claim have influenced Dr Bodell's factual summation as to how the accident occurred. In my view, having heard the plaintiff's oral evidence and explanations for those variations, nothing of adverse consequence to the plaintiff's case turns on such matters. In the circumstances, Dr Bodell's summary should not be read as a contrary liability version given by the plaintiff having regard to the real purpose of Dr Bodell's report: Mason v Demasi [2009] NSWCA 227, at [2]. 14The defendant gave a different version of events to that provided by the plaintiff. He stated that he had been the first cab on the Crows Nest taxi rank on the southern side of Burlington St shortly before the accident. Passengers had entered his taxi and he was asked to take them to Cammeray. 15The defendant said that he then pulled out from the kerb of the taxi rank and drove forward and into the centre of the road and indicated to turn to the right into Willoughby Lane. He stated that he had stopped and waited for the plaintiff's vehicle to pass Willoughby Lane on the opposite or northern side of the road, and then he proceeded to turn right into that lane. He said that at that time the plaintiff's vehicle suddenly reversed towards, and into collision with, the left rear portion of his taxi. He said he had not noticed the plaintiff's vehicle reversing until he was already in the course of his turn to the right. 16The defendant said that just before the collision, when he saw the plaintiff's reversing light on, he had accelerated quickly in order to avoid his passengers being hit in the collision. He said he then braked and stopped when the taxi was wholly within Willoughby Lane. He said this involved him travelling a few metres into that lane. The defendant explained that at the time he was making his turn to the right, he did not know that the plaintiff would stop his vehicle and then drive in a reverse direction. 17The defendant denied the suggestion put to him in cross-examination to the effect that he had attempted, in one movement, to turn across Burlington St into Willoughby Lane without first manoeuvring himself into the middle lane and then stopping. Instead, the defendant maintained that he had been stationary, with his indicator on, and waiting to turn right. He emphatically denied that he had driven straight from the cab rank across the road without pausing in the middle of the road and without indicators. 18On what I considered to be a critical matter to a determination of the liability issues, the defendant's evidence of his observations of the plaintiff's vehicle was at significant variance. At T71.50 he stated that the plaintiff's vehicle had travelled in reverse at "a certain speed" and likened it to a "normal reversing car". In contrast, at a later point in his evidence, when clarification was sought in relation to that evidence, at T79.45, the defendant stated that the plaintiff's vehicle was driven at "A certain speed quicker than a normal reversing". This disparity was not clarified in re-examination. 19Mr Vijaya Sambandham, a friend and work colleague of the plaintiff, was called as a witness in the case for the plaintiff. He was a front seat passenger in the plaintiff's vehicle at the time of the collision. He stated that the plaintiff's vehicle was in the process of reversing near the entrance to Willoughby Lane, and was about to stop, when the collision with the taxi occurred. He said he saw the taxi moving after the collision. He formed the impression the taxi was travelling fast, and gave a range of between 30 and 50 kph. In his statement to the plaintiff's solicitor given on 14 February 2012, Mr Sambandham stated that the plaintiff's vehicle had been reversing slowly at the time of the collision: Exhibit "H". 20I consider that the content of Mr Sambandham's statement amounts to a summary of the events as he understood them to have occurred. He was not in a position to see the approach of the taxi and he did not see the actual collision. His evidence, whilst partly confirmatory of the plaintiff's evidence, does not throw much light on the factual contest which falls to be determined on a consideration of the evidence of the plaintiff and the defendant.

Injuries, treatment and medical assessments 21Immediately following the impact the plaintiff felt very shocked. He went home and slept. The next day he still felt shocked and he also noticed pain in the left side of his neck. 22The plaintiff did not seek out any treatment in the days immediately following the accident. This was because he was booked to travel to India on 26 February 2011. Whilst the plaintiff was in India he experienced discomfort and he saw a doctor. He also took medication. He returned to Australia on or about 1 April 2011. 23On 2 April 2011 the plaintiff consulted his general practitioner, Dr Maria Li. She obtained a history of the plaintiff having been injured in the subject accident on 19 February 2011, at which time the plaintiff complained of gradually worsening pain since the accident. Following her examination of the plaintiff's neck Dr Li diagnosed the plaintiff to have sustained a whiplash injury. At that time she noted some restriction of movement of the neck, tightness and mild tenderness of the left trapezius muscle. She provided the plaintiff with a medical certificate and she prescribed physiotherapy treatment for him. 24On 28 May 2011, when Dr Li reviewed the plaintiff, she noted he had persisting neck pain and stiffness, with tenderness along the mid-cervical spine and along the left paraspinal region, with some guarding and limitation in flexion, extension and rotation of the neck to the right. She noted a worsening in the plaintiff's neck condition compared to the previous consultation. She then urged him to undertake physiotherapy. She also referred him for x-rays of his neck. 25The plaintiff attended a physiotherapist at the suggestion of Dr Li. Those consultations took place between 24 May 2011 and 23 June 2011. He was treated for his neck and back pains. The physiotherapist noted that the plaintiff's problems were aggravated by activities involving rotation, lateral flexion, lifting and abduction of both shoulders. It was noted that these problems were reported to be worse in the afternoons. It was noted that the plaintiff's discomfort was eased by heat and medications. The physiotherapist noted a variable pain scale history in the range of 6 to 9 out of 10. The physiotherapist also noted that the plaintiff had been experiencing difficulties with driving and household tasks. The plan was for the plaintiff to undergo a course of physical conditioning treatment. 26In June 2011, Dr Li reviewed the plaintiff again and noted some significant improvement in the plaintiff's neck symptoms. She noted that the plaintiff was unable to continue with physiotherapy because he was relocating. At a further review on 17 August 2011, Dr Li noted there had been a return of left sided soft tissue neck tightness, with mild left mid-cervical tenderness. He also noted slight restriction of neck extension but with minimal restriction of neck movements in other directions. 27On 19 July 2011 the plaintiff underwent an x-ray of his cervical spine, which was reported as showing no significant abnormality. 28On 7 March 2012, at the request of his solicitor, the plaintiff was assessed by Dr James Bodell, a consultant orthopaedic surgeon. In his report of the same date, Dr Bodell assessed the plaintiff as having suffered a soft tissue injury to his cervical spine. Dr Bodell noted a history of tenderness in the trapezius muscles at the base of the plaintiff's neck on the right side, with a reduced range of flexion, extension and rotation. Dr Bodell made a direct causal connection between the accident and the plaintiff's ongoing complaints. He noted resolution of symptoms remained incomplete with intermittent symptoms remaining, with flare-ups to be expected from time to time.

Disabilities 29In the absence of significant challenge on matters of the plaintiff's history of his injuries, treatment and disabilities, in addition to the plaintiff's oral evidence, I propose to draw upon the medical reports for evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 30Accordingly, I find that the plaintiff continues to have neck discomfort and associated headaches. These problems occasionally flare-up and cause him to experience increased levels of pain and discomfort, with stiffness and restriction of movement. His work continues to be affected because of the need for him to sit at a computer screen and concentrate for prolonged periods of time without postural relief. He had no such problems before the subject accident.

Mitigation 31The plaintiff is under a duty to mitigate his damages: s 136 of the MAC Act. I consider that he has discharged that duty by seeking medical attention, physiotherapy treatment, taking medication and continuing to work. The defendant made no submissions to the contrary.

Consideration of Issue 1 - Negligence 32The defendant argued that because the plaintiff was not entitled to stop or park his vehicle in Burlington St at the scene where the accident occurred, the defendant was entitled to assume that once the plaintiff's vehicle had driven past his position on the roadway in Burlington St, and cleared the eastern entrance to Burlington Lane, that he would continue in that direction, or at least not drive in reverse, thus entitling the defendant to lawfully execute the right turn manoeuvre into Willoughby Lane upon which he had in fact embarked. 33In my view, the defendant's argument in that regard is flawed. Although decided cases concerning road use are not necessarily authoritatively prescriptive for every circumstance in which accidents occur, it is relevant to refer to an applicable statement of principle. 34A driver must keep a proper lookout to anticipate emergent situations of danger on the roadway. In this case, in evaluating the issue of whether or not the defendant had been negligent, the resolution of that issue is not aided on inquiry as to why the plaintiff had stopped in Burlington St where he did, or why he was reversing at the time the incident occurred. In my view, the circumstance of a reversing vehicle in the street of a suburban shopping centre is within a foreseeable range of circumstances for which drivers must remain alert, albeit without seeking to impose a standard of perfection, irrespective of the state of nearby parking or no stopping signs: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228, at [39]. 35It seems to me that what occurred in this instance is that the defendant simply assumed that the plaintiff would continue to drive east along Burlington St and therefore proceeded to turn his vehicle immediately behind the plaintiff's vehicle as soon as he thought, without in fact determining by observation, that the plaintiff's vehicle had cleared the entrance to Willoughby Lane. 36In this regard, I accept the plaintiff's oral account as more likely to be accurate than the defendant's version. I have come to this view because the plaintiff's oral account seemed to me to be inherently plausible. The defendant's contrary version seemed to me to have been based upon an unreliable reconstruction focussed upon exculpation rather than recounting observed facts. I came to these conclusions for two reasons. 37The first indication that the evidence of the defendant was unreliable was the discrepant versions of the events that I have earlier referred to at paragraph [18] of my reasons. The fact that the defendant variously described the speed of the plaintiff's reversing vehicle as normal, and then quicker than normal, indicates that his evidence of his recollections and observations of the events of the accident should be considered to be unreliable if not inaccurate. These two factual versions remain irreconcilable. 38The second indication for the unreliability of the defendant's evidence was that the defendant appears to have reconstructed his evidence. His account of having pulled out of the kerb of the taxi rank, driven to the middle of the road, stopping at a point when the plaintiff's vehicle passed parallel and about 2 metres away, then turned, then seeing the plaintiff's reversing lights, then accelerating to get out of the plaintiff's path of travel in reverse, and of having then braked and then stopped within a few metres, all within a very short space of time gives me the impression of the inherent implausibility of that account on a true recollection. This is especially so having regard to the need to allow for the passing of several elements of reaction time followed by acceleration and then braking in rapid succession, all of which allegedly occurred only after the defendant saw the plaintiff's reversing lights approaching him. This account suggests reconstruction rather than actual recollection. 39Contrary to the submission made on behalf of the defendant, I do not consider the defendant's account had the ring of truth about it. Instead, I considered it an implausible reconstruction. 40I consider that a reasonable person in the position of the defendant would have waited and indicated before turning to the right into Willoughby Lane. I accept the evidence of the plaintiff that the defendant did not do so. Instead of waiting until he was satisfied that there was no likelihood of the plaintiff's slow moving vehicle stopping and reversing before turning right, the defendant simply turned and then failed to consider the prospect of the plaintiff's vehicle reversing. I do not consider that prospect could be dismissed as being insignificant. In suburban streets it is commonplace to see vehicles reversing for a number of reasons that need not be catalogued here. 41I therefore find that the defendant failed to keep a proper look out in the course of exercising his right turn into Willoughby Lane, in that he failed to have regard to the position of the plaintiff's vehicle as he was turning and failed to consider that the vehicle might become stopped and then driven in reverse. 42I am also persuaded that the defendant simply pulled out from the kerb of the taxi rank and drove towards the turning point for travel into Willoughby Lane without indicating an intention to turn right, and thus failed to put the plaintiff on notice that a vehicle might be turning behind him. I am persuaded that in those events, the defendant had breached the duty of care that he owed to the plaintiff as another road user whom he ought to have had within his contemplation at the time. 43I am therefore persuaded that the defendant's breach of duty amounted to negligence on his part, and that were it not for such negligence, the plaintiff would not have been injured in the accident.

Consideration of Issue 2 - Contributory negligence 44The defendant argued that there had been contributory negligence on the part of the plaintiff in the events of the collision in that the plaintiff had, without prior warning, reversed his vehicle into the defendant's vehicle, and had failed to give way to the defendant's vehicle when reversing, and in those circumstances, had failed to keep a proper lookout. For the reasons that follow, I do not accept the defendant's submissions in that regard. 45In the prevailing traffic conditions which were light, the plaintiff was entitled for whatever reason, to drive slowly, including in order to look for a suitable place to set down his passenger. For so long as he was driving in a forward direction past the entrance to Willoughby Lane, any arguable breach of the direction of a parking or no stopping sign was of no direct causal relevance to the occurrence of the collision. In those circumstances absent any awareness on the part of the plaintiff of the defendant's intention to turn right, to the plaintiff, the risk of a collision with the defendant's turning taxi must be seen to have been an extremely remote one: s 5B and s 5D of the Civil Liability Act 2002. 46The evidence of the plaintiff was that before he reversed, he looked about him, including in his mirrors, and did not see any impediment to reversing. He said, and I accept, that at that time, there was no immediate prospect of the defendant turning into Willoughby Lane either in front or behind his vehicle. In those circumstances, the plaintiff was entitled to move slowly in reverse as he posed no risk to other road users at that time. By taking those measures to look about him, he clearly discharged his duty to keep a proper lookout for his own safety. 47In these circumstances, I do not accept the defendant's submission that there was contributory negligence on the part of the plaintiff.

Consideration of Issue 3 - Assessment of damages 48As a consequence of a MAS assessment, it has been determined that the plaintiff is not entitled to claim damages for non-economic loss. His claim is therefore restricted to claims for future loss of earning capacity, future treatment expenses, and past out-of-pocket expenses.

Plaintiff's probable life span 49In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At age 32 years, the plaintiff has a probable statistical life span of 53 remaining years. He therefore has a normal working life span.

Future loss of earning capacity 50There is no evidence to suggest that the plaintiff will suffer a direct and precisely calculable economic loss. Rather, the evidence suggests the plaintiff has suffered a loss of earning capacity that is difficult to measure. 51This is apparent from the plaintiff's own evidence, which I accept, that from time to time, and within reasonable limits, he takes time away from his usual workplace in order to work from home when his neck symptoms flare-up. His present employment allows him that flexibility to a degree. This allows him to lay down and take a rest break or adjust his work position on a computer, to some degree. 52In my view, the likelihood is that the plaintiff has incurred a loss of earning capacity. This is apparent from the unchallenged opinion of Dr Bodell, which I accept, to the effect that the nature of the plaintiff's injury is for flare-ups of the neck condition to occur from time to time, requiring conservative treatment, followed by a return to a base level of discomfort that would allow the plaintiff to continue to work. In my view, those anticipated periods of flare-up in the plaintiff's neck condition require consideration from the perspective of a potential loss of earning capacity. 53Dr Bodell considered that the plaintiff may in the future have some intermittent difficulty with his earning capacity as a result of his neck condition. Whilst there is "no hard clinical data" that the plaintiff's earning capacity will be reduced in the long term, based on Dr Bodell's analysis, I accept that it is more probable than not the plaintiff will experience intermittent difficulty with his work during episodes of flare-up of neck symptoms. 54I do not accept the defendant's submission that such a conclusion is speculative, as a loss of earning capacity is readily inferred from the evidence of the plaintiff and from the opinions expressed by Dr Bodell. I therefore consider it is more probable than not that the work difficulties identified by the evidence of the plaintiff and in the report of Dr Bodell are likely to result in a degree of financial loss requiring assessment in these proceedings. 55This evidence gives rise to difficulties in assessment. In Australia, the plaintiff's earnings ranged between $1300 and $1400 per week net. In India, his earnings are of the order of $1100 per month net. It may be readily inferred that in India the cost of living is considerably less than is the case in Sydney. The plaintiff has expressed the desire to return to work in Australia. On the evidence there is no indication as to when this might reasonably occur. 56In 2012 the plaintiff left Australia in order to return to India because of his mother's illness. That problem has now receded. He is now keen to return to Australia. In India, he has retained his employment in the IT industry with Oracle, the same company that brought him to Australia and contracted his services to Citibank for 4 years. He is fluent in the language of this country, he has established connections here, and it seems reasonable to infer, given the economic advantages available to him and his family here, that at some time in the future, he may well return to live here, either on a limited visa like his previous visa for 4 years, or on a longer term basis. 57In these circumstances, I consider that a modest economic buffer should be awarded to compensate the plaintiff for probable future loss of earning capacity resulting from his accident. This is because although it is likely he will continue to work in the IT industry, working at computer screens for prolonged periods likely to cause him the neck discomfort he has described and which Dr Bodell commented upon. There is a limit to the amount of time the plaintiff can take off work in order to work at home, and in those events, the intermittent need to take actual time off work when his neck gives him trouble, is very likely to cause him to suffer financial loss. 58Were it not for the effects of the accident, I consider that the plaintiff would not be in the position of being subject to flare-ups of neck pain and in need of taking time off work. If the plaintiff had not been injured, his most likely circumstances would have been that he would have been able to continue with is computer work without restriction or discomfort requiring breaks or time off from work: s 126 of the MAC Act. 59As a result of the accident, that pre-accident situation has changed, as explained by Dr Bodell. As the incidence of the resultant impairment is unpredictable, I consider that an economic buffer is the appropriate means by which to compensate the plaintiff: Penrith City Council v Parks [2004] NSWCA 201. In this regard, I consider that a figure more towards the lower end of the range submitted by the plaintiff is reasonable. I therefore award the plaintiff a buffer for loss of earning capacity in the amount of $35,000.

Future treatment expenses 60The plaintiff makes a claim for future treatment. That claim is supported by the opinion of Dr Bodell, who stated that the plaintiff would require some ongoing intermittent treatment in the form of non-prescription analgesic medication on an as needs basis, and physiotherapy from time to time during flare-ups, when his neck may become strained due to the nature of his work at a computer screen. 61The defendant submitted that there should be no award on this account, or alternatively, there should be only minimal allowance for future treatment. Having regard to the unchallenged opinion of Dr Bodell, whose opinion I accept as reasonable, I do not accept the defendant's submission to the effect that there should be no award of damages for future treatment. 62On behalf of the plaintiff it was submitted that a buffer of between $10,000 and $25,000 should be allowed for future treatment. Although the evidence of Dr Bodell supports some allowance for future treatment I do not consider the evidence to support an allowance in the range submitted on behalf of the plaintiff. This is so for a number of reasons. 63First, it is unclear as to how long the plaintiff will remain living in India. Although he has expressed the desire to return to Australia, and in his circumstances, that desire is based on sound economic reasons, it remains uncertain when he will return, and in the meantime, the evidence is that the cost of medication in India is quite modest. Secondly, the evidence does not permit a precise calculation for treatment expenses because of the absence of evidence of costing in India, and generally because of the intermittent nature of the anticipated need. 64Nevertheless, the plaintiff should be compensated for an intermittent need for medication, physiotherapy, the occasional replacement of the orthopaedic pillow as recommended to him by his physiotherapist, and possible future supervisory medical consultations with a general practitioner. Given the uncertain timing of such expenditure, the intermittent nature of the need and the uncertain location of the plaintiff when such needs may arise, I consider that an appropriate buffer for this head of damage would be $2500. I therefore award the plaintiff damages for future treatment in the amount of $2500.

Past out-of-pocket expenses 65The plaintiff's past out-of-pocket expenses have been agreed in the sum of $742. That amount has been paid by the CTP insurer, Allianz. I therefore assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $742.

Summary of damages assessment 66My assessment of the Plaintiff's damages is summarised as follows: (a) Future economic loss $35,000 (b) Future out-of-pocket expenses $2,500 (c) Past out-of-pocket expenses $742 Total $38,242

Disposition 67The plaintiff is entitled to a verdict and judgment in the sum of $38,242 without discount on account of alleged contributory negligence.

Costs 68As the plaintiff has succeeded in obtaining a verdict in his favour against the defendant, he is therefore entitled to have his costs of the proceedings paid by the defendant.

Orders 69I make the following orders: (1)Verdict and judgment for the plaintiff in the sum of $38,242; (2)The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2013