Hayes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. [2010] NZACC 238 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN NICOLA BRONWYN HAYES (Al 136/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HAMILTON on 18 October 2010 APPEARANCES Mr D Hayes, Counsel for Appellant. Mr D Tui and Ms S Mecham, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 6 September 2006, whereby it revoked a decision to pay the appellant weekly compensation for the period commencing 10 September 1998 onwards, that revocation being stated to have been made on the basis that the respondent was not satisfied that the appellant was incapacitated from 10 September 1998 onwards. [2] The background facts relevant to the issue in this appeal may be stated as follows: . On 13 June 1997 the appellant, then aged 36 years, suffered injuries to her neck, shoulder and head when her stationary motor vehicle was struck by a speeding vehicle from behind. 2 . At the time of this accident the appellant was employed as a schoolteacher. She had two young children and was separated from her husband. Despite her injuries the appellant returned to work as a school-teacher although she received weekly compensation for the short period of time she was off work. . On 1 July 1997, while back school teaching, the appellant suffered concussion when a soccer ball struck her on the head. She was accepted as being incapacitated both from this latest injury and from the whiplash injury sustained in the motor accident. . The appellant was again in receipt of weekly compensation consequent upon her incapacity. . At this time the appellant was in a relationship with a Garth Mailman, and at whose instigation a company was incorporated named Effluent Spreading (NZ) Limited. Mr Mailman was the sole shareholder and the appellant the sole director. . In December 1997 that business commenced work, the business providing a service for the pumping of effluent from farm ponds and spreading the effluent on to surrounding paddocks. . The effluent is pumped through a hose from the effluent pond into a tank on a truck and when full the truck is driven around the paddocks spreading the effluent. . Evidence subsequently given in Court identified that the appellant took a full part in the work that the company carried out, being both physical and administrative work. . The business continued in this fashion until February 2001 when Mr Mailman suffered serious injuries in a motor accident and the appellant thereafter was required to run the business by herself, although it did thereafter take on employees. In May 2002 the appellant and Mr Mailman broke up and the appellant thereafter incorporated a separate company named Effluent Spreading NZ (2002) Ltd. 3 . Throughout the period from the commencement of the business in December 1997, to at least October 2004, the appellant was providing ARC 18 Medical Certificates to the respondent from a succession of GPs who certified her as being incapacitated by reason of the whiplash and head injuries suffered by her in 1997. . As is a requirement of those ARC 18 Certificates, the appellant signed a declaration at the foot of the certificate that there was nothing else that she needed to tell ACC about her circumstances, with that certificate noting that she was required to notify ACC of any employment that she might undertake. On no such certificate was any advice given of her business activities associated with Effluent Spreading (NZ) Ltd. . Despite it being the case that the medical certificates made no mention of any employment/work, it is the case that from early 2001, as part of vocational rehabilitation activity, the appellant's case manager was aware of her work activities and the same is referred to in a Vocational Assessment Report provided to the Case Manager in January 2001. . In about mid-2002 the respondent began to investigate the appellant and her activities and which involved a private investigator. . In late 2004, 29 charges of fraud were laid against the appellant, alleging fraudulent activity between 10 September 1998 and 7 October 2004 in relation to her claims for, and receipt of, weekly compensation. . A jury trial took place in the Hamilton District Court in July 2006, at which the appellant was found guilty on all 29 charges. . As a consequence of that guilty verdict the respondent issued its decision which is the subject of this appeal. That decision stated as follows: "In light of your recent conviction in the Hamilton District Court ACC has reconsidered your entitlement to weekly compensation from 1998 It is noted that the charges brought against you related to medical certificates provided by you for the period from 10 September 1998. It is further noted that evidence provided by the prosecution during the criminal hearing demonstrated that you were actively involved - both in a physical and mental capacity - in Effluent Spreading (NZ) Lid and Effluent Spreading NZ (2002) Ltd. The evidence provided at the criminal hearing regarding your activities and involvement in the two companies is entirely inconsistent with your medical certification of incapacity for the period from 10 September 1998. ACC is not satisfied, having regard to the evidence provided during the prosecution, that you were incapacitated for the period from 10 September 1998 to the present. Pursuant to Section 390 of the Injury prevention, Rehabilitation, and Compensation Act 2001, ACC revokes its decision granting you weekly compensation from 10 September 1998. ACC is not satisfied that you were incapacitated pursuant to Section 37A of the Accident Rehabilitation and Compensation Insurance Act 1992 (being the ACC legislation in force as at September 1998). The result of this decision is two-fold: 1. You have no ongoing entitlement to weekly compensation and such payments will cease immediately; and 2. You have received an overpayment of weekly compensation for the period from 10 September 1998 to the present. ACC will calculate the overpayment and advise you shortly of that amount." . The appellant's conviction was taken to appeal in relation to claims about the Judge's summing-up to the jury, and whilst that appeal was dismissed by the Court of Appeal, the appeal was taken to the Supreme Court and in a decision made on 15 February 2008, the Supreme Court allowed the appeal and the convictions were set aside and a new trial ordered. As it was the case that the appellant had in fact served the term of imprisonment that had been imposed by the District Court, the appellant was discharged from the indictment when the matter was called before the District Court in May 2008. The appellant was granted leave to extend the time for seeking a review of the respondent's primary decision of 6 September 2006, and a review hearing took place over four days in late 2009. At that review hearing a number of witnesses who had given evidence at the appellant's trial, gave evidence of her involvement in the activities of her company, those witnesses being farmers who had engaged the company to carry out effluent spreading on their farms. The Reviewer also heard from two of the appellant's GPs who had provided "incapacity" certificates over the years down to mid-2004. . In a review decision of some 57 pages, the Reviewer, Mr R Woodhouse, found on the evidence that on the basis of the appellant's work activities for 5 her business and of him finding that the appellant had been dishonest with her GPs about her work activities, that it would not have been the case that the appellant would have been certified as being unfit for work and from that the Corporation was entitled to revoke the appellant's weekly compensation. [3] It is from that decision that the appellant now appeals to this Court, and in essence it is Counsel for the Appellant's submission that for Accident Compensation Act purposes, there was no proper evidence that the appellant had ceased to be incapacitated from her pre-injury employment as a school-teacher, there being no medical evidence to that effect. [4] Counsel also referred to the several medical assessments which were assessments as to the extent of the appellant's injuries and which could be considered assessments not coloured by any lack of knowledge of the appellant's activities in her Effluent Spreading Business [5] In contrast to those submissions, Mr Tui, Counsel for the Respondent, submitted that the statutory provision in question, namely Section 37A of the 1992 Act, did not have a mandatory requirement for a medical report or medical assessment. He further submitted that all the medical reports which were in existence had relied on the appellant's self-reporting and it was on the basis of false information given to them by her that those reports were made and therefore they could not be relied upon. [6] Mr Tui also referred to the evidence given at the prosecution and also the evidence of the appellant's GPs who gave evidence at the review and who had indicated that if they had known of the work she was carrying out they would not have certified her as being incapacitated. [7] As earlier noted, the Review Decision is a lengthy document and the Reviewer sets out in some detail the evidence given by a number of witnesses who employed the appellant to carry out effluent spreading on their farms. The Reviewer also heard evidence from the two GPs who successively provided certificates to the respondent as to the appellant's incapacity at 90 day intervals. The Reviewer also heard evidence from the appellant's former partner, Mr Mailman, and which evidence could be said did not assist the appellant's cause. 6 [8] Finally, the appellant herself gave evidence and she was cross-examined extensively by Mr Tui and the Reviewer found that the appellant's evidence "was not compelling". [9] In addition to the viva voce evidence given by the witnesses at the Review Hearing and in respect of which I will refer further to later, the Court has also been provided with the various medical reports and other ACC initiated reports which I consider to have relevance. In chronological order, the various medical reports are as follows: 1. Report from Professor D Gorman, Occupational Medicine Specialist, dated 19 August 1998 to appellant's case manager. Dr Gorman had been asked to answer a number of questions. He first advised that the appellant's then diagnosis was that of chronic pain syndrome that satisfied the classification criteria for fibromyalgia. He stated that fibromyalgia was post-traumatic. He then went on to state as follows: 'To some extent, the two head injuries are essentially coincident. In that context, testing today would suggest that Nicola has made an essentially full recovery. Certainly, there is no persistent evidence of any post-concussion syndrome. Overall, her neurologic function is intact. ...both the ACC and the Judiciary in New Zealand recognise and compensate chronic pain when it is thought to have been post-traumatic. For such entitlement, there must be an assumption of cause (in the absence of substantive data) and an antecedent injury or occupational infection or disease. In this context, there was a clear antecedent injury. That is, Nicola's whiplash injury. Indeed, of all the injuries postulated to sensitise the nervous system to chronic pain, the most plausible is a whiplash injury." Finally, Dr Gorman was asked, "what is the prognosis for returning to work as a school- teacher?" Dr Gorman stated as follows: From a biomechanical and medical perspective, Nicola is fit to return to school teaching now. In that context, her return to full-time school teaching will be facilitated by sleep restoration and some improved control of her pain levels. The appropriate medication in this context is described above. Certainly, once Nicola's sleep has improved, and her pain levels are better controlled, then there are no reasons at all why she should not be able to return to full-time school teaching. I would expect a time frame in this context to be one to two months at the most. 2. Neuropsychological report dated 18 June 1999 from Dr R Dick, Neuropsychologist of Health Waikato. The appellant was referred for a neuropsychological assessment following her head injury. Whilst the appellant gives an extensive history of her circumstances, there is no mention of her work, and her situation as noted in the report stated as follows: 7 ... Nicola sustained whiplash as a result of an MVA in June 1997. In addition to her initial injury, she reported that she sustained two subsequent forceful knocks to the back of the head. Prior to her initial injury Nicola was a very high functioning school teacher and principal, and was involved in many extracurricular activities. As a result of her accident (in addition to a number of physical problems) Nicola has reported being unable to function cognitively at her pre-injury level. .. . Due to the difficulties highlighted by the current interview and assessment, it is unlikely that Nicola is able to cope with the demands of teaching in her pre-injury capacity at this stage. This finding is in contradiction with a previous recommendation by Dr Gorman, Head of Occupational Medicine at the University of Auckland, in a report dated 19 August 1998. However, in the future it is likely that Nicola will be able to return to work. At that time it si recommended that she do so in a gradual manner, initially working part- time In conclusion, although Nicola's general intellectual functioning remains within the average" range, it is evident from Nicola's reports and the interview findings that she is no longer functioning at her pre-injury level. 3. Neuropsychological Assessment Report dated 28 October 2004. This was a report prepared for ACC by two clinical psychologists. In the extensive history that is referred to in the report it is noted, inter alia, as follows: Ms Hayes also noted that she attempted to run her ex-partners business after he himself had a brain injury, but said that she was unable to do so, and has passed this role on to someone else. She reported that she has been trying to sell the business for two years, but said that "the court" will not allow this, and as a result the business may go bankrupt. Ms Hayes said that her input into the business comprises signing cheques and occasionally taking messages. The summary and conclusions in the report stated as follows: Ms Hayes reports some improvements in concentration over time, but said that she has been left with persisting: chronic pain (neck, shoulders, back, head); reduced power in her right arm; impaired balance, blurred vision at times; sensitivity to light and noise; word finding difficulty; fatigue; poor concentration; forgetfulness; some difficulty recognising others emotions; and some impulsiveness. Ms Hayes reported that she has been unable to return to work as a primary school teacher. A previous attempt at vocational rehabilitation was placed "on hold" in 2002, after Ms Hayes partner sustained a brain injury. Ms Hayes said that she attempted to run her partners business for a time, but was unable to do so, and now has only a very minimal role in the business. Ms Hayes has subsequently separated from her partner and he has reportedly been jailed for sexually abusing one of her children. Dr Newburn's view is that, as a result of significant brain injury, Ms Hayes has been less able to cope with stress and subsequently functions in a state of "chronic overload". He considered that it is unrealistic to expect further rehabilitation gains until ongoing stressors relating to her ex-partner's behaviour have resolved. . . . On formal retesting, Ms Hayes speed of information processing had declined. This appears to have resulted in slightly reduced scores on some tasks assessing other aspects of attention/concentration (i.e., sustained attention, and complex attentional functioning). In addition, verbal memory and verbal fluency (previously unimpaired) 8 were now variable (i.e., each was within normal limits on one task but below expectation on another). Ms Hayes pattern of cognitive functioning was otherwise unchanged. ... As noted by Dr Newburn and Ms Hayes' GP, vocational rehabilitation is unlikely to be successful at this point. However, Ms Hayes overall level of intellectual functioning remains within normal limits and, as such, it seems likely that vocational rehabilitation and a graduated return to work may be successful in future. In this regard, she is likely to be most suitable for work involving completing one task at a time, without time pressure. Her slowed speed of information processing at this point suggests, however, that training and working as a counsellor is unlikely to be a suitable option for her. 4. Report from Dr D Hartshorn, Specialist Occupational Physician dated 3 December 2009 to appellant's counsel. Dr Hartshorn was provided with all the medical reports previously obtained concerning the appellant. He was asked specific questions and the key question and answer was as follows: Q Does the content of the attached list of documents provide sufficient medical basis to find Ms Hayes was not incapacitated for employment from 10" September 1998? A Taking the medical evidence alone I believe that the evidence suggests that Nicolas was not fit to return to her pre-injury employment as a primary school teacher in 1998. I believe that the combination of symptoms with particular reference to her phonophobia, and fatigue combined with her cognitive difficulties of slowed information processing and reduced attention and concentration will have resulted in incapacity with respect to her primary school teaching. There does however appear to be fairly clear evidence that she was not fully incapacitated in the sense that there is fairly extensive indication that she was engaged in some form of work activity and particularly at this time appears to be engaged in some administration and organisational activities with respect to New Zealand Effluent Spreading Limited Dr Hartshorn then went on to say further as follows: As outlined above the cognitive impairments identified in 1999 have not been demonstrated to have resolved. There is suggestion that the presentation has become even more complex with the development of a depressive disorder. Whilst this does raise the question of cause of incapacity there is not clear evidence that this question has been addressed and certainly there is no clear evidence to confirm a level of function compatible with a return to work activity as a school teacher. As outlined above there is evidence within the documentation to suggest that Nicolas was not fully incapacitated and was able to engage in physically somewhat demanding work activity and was observed at times to work relatively long hours however there is no good information with respect to her sustainability of hours per week. It also has to be acknowledged that the cognitive demands of her work activity for the effluent company was very likely much less than that of a primary school teacher. In this respect I do not believe there is sufficient medical basis to confirm capacity in her pre-injury employment as at 6/9/06. 9 5. Independence Allowance Assessment Report from Dr John Collier, dated 28 May 2001 Dr Collier is a Specialist Psychiatrist and Psychotherapist and he was requested by the respondent to carry out an assessment of the appellant for the purposes of an Independence allowance relating to her head and whiplash injury suffered in July 2007. He was looking at the head injury impairment situation, and after considering the nine categories for impairment rating, Dr Collier assessed the appellant as having a 24% Whole Person Impairment, he stating that this was permanent. 6. Impairment Assessment Report from Professor Ross Mccormick dated 1 November 2007. Professor Mccormick was requested to reassess the appellant's injuries under the AMA Guides criteria. His report indicates that he had a significant amount of evidence for reference, including the earlier assessment of Dr Collier, and his assessment determined that the appellant had a 26% Whole Person Impairment, that impairment being 22% neurological and 5% cervico-thoracic. [10] In addition to that evidence there are some relevant passages from documents in reports to, or letters from the appellant's various case managers. The first relevant document is a report dated 4 December 2001 from Alpha Consultants, a firm of vocational rehabilitation consultants, to Mr Perdia, the appellant's case manager. This was a report on the appellant's Individual Rehabilitation Plan and where discussion was had about the business that she was conducting. That report stated, inter alia, as follows: She brought along to our appointment a cash book and her old invoice book. I therefore set about doing a session with her on recording her cash transactions into journal form. We were following this line to enhance her book keeping skills and also to rebuild her confidence. She participated freely and completed some of the exercise herself. In the first session she has learnt that she must sign and date all the invoices when clients pay their accounts. She identified this shortfall in her system by the end of our session. have given her an exercise to do between now and the next session. [11] A further report from Alpha consultants was provided to Mr Perdia dated 23 January 2002 and that report stated, inter alia, as follows: She advised that she was now coping at home with her partners injuries (he was recently involved in a motor vehicle accident in which he sustained a head injury) as well as trying to run his business. ... Nicola is trying to run Garth's business and manage the financial demands of book- keeping. It was evident that she had no real system in place to account for income for tax 10 purposes each quarter. I therefore agreed to assist her with some simple book keeping exercises. I have since found that that she is entitled to free assistance from the tax department to set up her accounting system (if she is GST registered). This information has been relayed to Nicola and I will leave it to her to make the necessary appointment. (12] In a letter dated 11 December 2001 from Mr Perdia to the appellant's GP, Dr Hayworth, he noted inter alia as follows: Nicola is attending vocational rehabilitation counselling sessions at present. The aim of this is to help identify suitable work options and training needs. I note that her medical certificates certify her fully unfit for work. As Nicola is looking after Garth and running his fertiliser business full time could I ask that you certify her fit for selected duties. This will reflect the current activity she participates in. Her role in the business involves driving to farms, bookkeeping/accounts, quotes, employee supervision, phone queries and ordering/stocktaking. [13] As earlier noted, a number of witnesses gave evidence at the hearing as to the appellant's activities in connection with the effluent spreading business from December 1997 onwards, and the main points of the various farmer witnesses is set out in the review decision, and in each case the farmer witness stated that he observed the appellant being engaged in the effluent spreading activity, and without exception they all stated that from their observation, the appellant no difficulty with the physical activities associated with the job, such as hooking up the equipment and actually being engaged in the spreading of the effluent. Those witnesses also said they had no problems dealing with the appellant on the administrative side of the business, and that the business was being efficiently run. [14] Two GPs who had certified the appellant's ongoing incapacity successively also gave evidence, they being a Dr Lad, and a Dr Odedra. Dr Lad gave certificates of incapacity between February 1998 and March 2000, and Dr Odedra gave evidence of his occasions of certification from late 2000 into 2001. Both doctors stated that the appellant had made no mention to them of her working in the effluent spreading business. Each doctor indicated that they were looking at the appellant's medical condition from a pain perspective, and did not in any way investigate any psychological or psychiatric problems associated with her head injury. Dr Lad stated that had be been aware of the appellant's working, he would not have provided medical certificates of incapacity. Dr Odedra stated that if he had known she had been working, "he may have provided a partial certification for limited work". 11 [15] As earlier noted, the appellant's former personal partner and business partner, Mr Mailman, gave evidence, and it must be identified that he would be regarded as being somewhat hostile as having been convicted and imprisoned for sexual acts upon the appellant's daughter. He also stated that the appellant actively assisted in the physical work with the effluent spreading and that she did all the accounts and that the work they did was a full-time job. [16] As a consequence of the viva voce evidence which the Reviewer heard, he found that he was entirely satisfied that the appellant was working for Effluent Spreading both physically and administratively and he further stated that he was left in no doubt that the appellant had a significant capacity for work which she did not notify her GPs about. DECISION [17] The decision which is in issue in this appeal is the respondent's decision made pursuant to Section 390 of the Accident Compensation Act 2001, which is the provision which allows for the Corporation to revise decisions made under previous Acts. It states in Section 390(3) - "In revising a decision, the Corporation must apply the Act that applied at the time when the decision being revised was made." [18] The decision being revised was the respondent's decision towards the latter part of 1997 granting the appellant weekly compensation by reason of her incapacity. The decision under appeal revoked that entitlement to weekly compensation by contending that in fact the appellant was not incapacitated within the meaning of Section 37A of the 1992 Act from 10 September 1998 onwards. [19] The relevant provisions of Section 37A of the 1992 Act state as follows: "(1) For the purposes of this part of the Act, the Corporation shall determine the incapacity of a person in accordance with this section. (2) The object of a determination of incapacity under this section is to determine whether or not a person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred. (3) The Corporation may make a determination under this section at any time and from time to time and, in so doing, the Corporation may obtain such professional, technical, specialised, or other advice from such persons as it considers appropriate." 12 [20] Mr Tui, Counsel for the Respondent, referred to the fact that the provisions of Section 37A did not involve a mandatory requirement of obtaining a medical assessment as a pre-requisite for the Corporation's determination, that provision to be contrasted with Section 102 of the 2001 Act, which does make it a statutory requirement that the Corporation must consider an assessment undertaken by a medical practitioner. Counsel submitted that on the basis of the factual circumstances of the appellant being fully engaged in the effluent spreading business with seemingly no problems, that it was open to the respondent to determine that there was no medical reason why she could not have resumed her pre-injury employment of school-teacher. (21] Mr Hayes, on the other hand, submitted that at no stage had the factors pertaining to the appellant's head injury and its consequences been taken into account, and he referred to the specialist evidence as to her medical condition from a head injury perspective, and that nothing the appellant may have said would have caused them to come to an erroneous decision. [22] In this case, the respondent simply acted upon the evidence which had been forthcoming at the criminal trial and which identified that the appellant was engaged in employment and for which she made no certification to that effect when providing ongoing medical certificates of incapacity. The decision is clear in that it was made by the respondent on the basis of the appellant's engagement in the business of Effluent Spreading (NZ) Ltd. [23] From a criminal perspective, it is not hard to identify that prima facie the appellant may have been guilty of fraudulent activity in not truthfully complying with the requirements of the claimant declaration in the ARC 18 form, but that potentially criminal activity is quite unrelated to the issue which this Court has to consider in the context of this appeal. [24] It is the case that the respondent did not rely on any medical certification or advice and simply assumed that because the appellant was actively engaged in employment, she was thereby identified as being capable of resuming her pre-injury employment of a school-teacher. 25] The factual evidence relied on by the respondent is wholly pertaining to her physical abilities and no doubt a correct identification was made that from a physical perspective, if the appellant could engage in the various aspects of the effluent 13 spreading business, then she would not likely be physically incapable of doing any physical requirements associated with the activities of a school-teacher. [26] That situation, I find, is only half of what was in fact this appellant's medical problems. It was identified that she had suffered two head injuries in a short space of time and there is incontrovertible evidence that those head injuries were having an ongoing effect on her intellectual functioning and in that regard the appellant had several assessments and where, I find, such assessments, were objective in considering her intellectual functioning and did not stand or fall on whether there was information in the possession of the assessor about her being involved in effluent spreading. [27] The mental functions required to carry out effluent spreading, I find, would be significantly different from those required of a person engaged in school teaching, and there is evidence from several assessments that her intellectual functioning was affected by her injuries and which would have prevented her from being able to function at her pre-injury level. [28] There is evidence from the two impairment assessments that the appellant did have significant cognitive impairment, again those assessments were done from a wholly objective perspective, and the fact that the first assessor may not have known of the appellant's engagement in effluent spreading I find would not have influenced an objective assessment of her head injury impairment rating. The second assessment was done by Dr Mccormick, after all was revealed, and is consistent with the assessment made by Dr Collier back in 2001. For this reason I find that it is not a situation where Dr Collier's assessment or any of the other psychological assessments can be simply disregarded, as counsel for the respondent would assert. [29] I find that the opinion provided by Dr Hartshorn is one which has total relevance to the issue in this appeal, and he in effect, is carrying out the same task as is required of this Court, when he was asked to consider from the medical evidence with which he was provided, whether it established that the appellant was able to engage in her pre- injury employment as a school teacher, and to which Dr Hartshorn advised that there was an insufficient medical basis to confirm her capacity to engage in her pre-injury employment. 30] In the case of this appellant, her pre-injury employment being that of a school- teacher, involves a significant intellectual input, and that aspect has been totally 14 disregarded by the respondent before making its decision, and I find that if ever there was a case where a proper assessment was required to determine capacity or otherwise, it was the case of this appellant. [31] Having regard to the legal requirement necessary for the revocation decision, it needed to be established that the appellant had regained her ability to engage in employment as a school teacher as of September 1998, and onwards, and I find that the evidence cannot establish that state of affairs as of September 1998 or subsequent. [32] Accordingly, I find that the respondent's decision was incorrect, both in fact and in law, and is hereby quashed, with the consequence being that the appellant is entitled to have her weekly compensation reinstated from the date of its cessation subject to any abatement that may apply, and for so long thereafter as she can establish a continuing entitlement. [33] The appellant being successful, I allow costs in the sum of $3,000 together with qualifying disbursements. DATED this 22 day of December 2010 M J Beattie District Court Judge