SYDNEY COUNTY COUNCIL v FURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, HANDLEY JJA and Hope AJA 30 June 1991, 19 August 1991 [1991] NSWCA 263 WORKERS COMPENSATION — Worker suffering lung cancer which resulted in his death — Worker exposed to creosote in course of his employment — Medical evidence that exposure to creosote can probably cause cancer in humans — Worker a heavy smoker — Medical evidence accepted by Compensation Court that smoking a most likely cause of lung cancer and that exposure to creosote could not be excluded as a cause — Award by Compensation Court in favour of worker's widow. HELD that finding established exposure to creosote as a possible cause and not a probable cause and that it had not been found that exposure to creosote was a probable cause — No evidence to establish that exposure to creosote probably resulted in worker's death. Appeal allowed and award directed in favour of employer. Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 St. George Club Ltd v Hines (1961) 35 ALJR 106 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Pyrmont Publishing Company Pty Ltd v Peters (1972) WCR (NSW) 27 Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 Pickergill v Freight Bases Pty Ltd (1983) 3 NSWLR 117 Australian Electrical Industries Pty Ltd v Marlborough (CA unreported 16 June 1989) Samuels JA I agree with Hope AJA. Handley JA I agree with Hope AJA. Hope AJA Mrs. Beryl Jean Furner, the widow of the late Leonard Stanley Furner,a worker who had been employed by the Sydney County Council and who died on 29 January 1981, claimed compensation from the Council in respect of his death. In the Compensation Court Manser J found that Mr. Furner died as a result of injuries suffered by him in the Council's employ and awarded Mrs. Furner a sum of $30,000. The causes of Mr. Furner's death were listed as: (a) small cell carcinoma metastases of the brain, one year; (b) small cell carcinoma of the left lung, one year; and (c) suppurative broncho pneumonia one week. The case was dealt with in the Compensation Court and in this Court on the basis that the cause of death was cancer, that the primary cancer was in the worker's chest and lungs, and that the cerebral carcinoma was a secondary cancer. Mrs. Furner's case was that her husband's lung cancer resulted from his exposure to creosote in the course of his employment by the Council. Mr. Furner (the worker) commenced his employment with the Council in 1954 or 1955, and retired from that employment in 1975. He started as a linesman and after a time was appointed a leading hand of a group of linesmen. As a leading 2 UNREPORTED JUDGMENTS hand he supervised men climbing poles, issued instructions to them and ensured that the poles were safe before the men climbed them. In order to check the soundness of a pole, he would strike the pole with a hammer or the back of a tomahawk, and depending on the sound which the striking produced, he would authorise an employee to climb the pole or not as the case may be. It was common ground that the worker was at no time a member of the gang which charred the bottom of poles and applied creosote to the charred areas. However there were occasions, although they may have been rare, when a pole had been placed in the ground but no creosote was available so that the worker would collect some creosote and bring it back to the site. Manser J concluded that the inference to be drawn from the evidence was that the occasions when the worker was exposed to creosote, during the sounding of poles procedure, were infrequent, the frequency being determined by the occasions when his second opinion was sought in relation to an older pole. There were also occasions when he would have been exposed to creosote which had been applied to a new pole in the ordinary course of carrying out his duties for the Council. There was also evidence, accepted by Manser J, that the worker was a smoker until about 1972 and that "his daily consumption of cigarettes was quite high." To support the case that the worker's exposure to creosote was a cause, albeit not the only cause of his lung cancer, Mrs. Furner's counsel called Dr. BW Stewart, whose speciality was cancer research with particular regard to chemical carcinogenesis. It will be necessary to look at the evidence of Dr. Stewart in some detail later on, but for present purposes it is sufficient to refer to the description of his evidence given by Manser J. His Honour said that Dr. Stewart believed that the major cause of the worker's lung cancer was his smoking but that, after making allowances for the far less exposure to creosote that the worker experienced than that which he had assumed in the making of a written report, exposure to creosote could not be excluded as a causative factor of that cancer because it was, like cigarette smoking, a known carcinogen which either played a primary causative role or in a secondary way by way of synergism or interaction between the two risk factors, namely, exposure to creosote and smoking. His Honour then discussed carefully and in considerable detail decisions as to causality, and as to the test to be applied in determining whether an injury resulted from some particular cause. Having concluded that neither proximity nor nearness was necessary to establish the relationship between the alleged cause and the injury, his Honour went on to discuss the ways in which Mrs. Furner could prove her case. He said: "Tt seems to me to be as open to the applicant in this case to have proved her claim either by positively showing that the worker was exposed to creosote so that it could confidently be said that the cancer was caused by the creosote, or, by proving that the exposure to creosote cannot be excluded as the cause." To establish that a particular matter could not be excluded as the cause of an injury would seem to establish a possibility, rather than a probability. His Honour faced this position and said: "Tt might be argued that to state the onus on the appellant thus is to say that, in the first instance the applicant proves a probability but in the second instance, she proves a mere possibility. To do so however, necessarily, involves invoking concepts of 'proximity' or 'nearness' between the cause and the event. This is because if one sees the relationship between causes and effects as linear then only URJ SYDNEY COUNTY COUNCIL v FURNER (Hope AJA) 3 those causes which have a real relationship, in the sense of having a capacity to produce the effect either singularly or in company with other causes, are able to be included in the line." Later his Honour went on to say: "Obviously those matter (sic) which cannot be excluded from the line of connection are capable of being ranked or occupying positions along the line of connection closer, in terms of probability, to the development of the cancer. This only illustrates the relative strength of the cause in comparison with others and says nothing about them as causes as such. It is obvious in any situation that it is likely that, where there are multiple causes for a particular effect or event, the causes will vary in importance. When one removes from ones consideration a necessity to isolate the strongest cause, that is the one from which the effect is most likely to have resulted from, then one can say that all causes are capable of producing the event." With respect to his Honour, as it seems to me, this last sentence leaves any particular cause in the area of possibility and not of probability. If all that one can say is that all causes, including the relevant cause, are capable of producing the event, one says no more than that it is possible that the particular cause did produce the event; one does not say that the particular cause probably did produce the event. Summing up his finding, the learned judge said: "T am satisfied that Leonard Stanley Furner developed lung cancer as a result of his exposure to creosote whilst in the employ of the respondent. There are undoubtedly a number of causes from which the cancer may have resulted. Only two have been referred to in this case. For reasons which I have already given the basis upon which I make this finding is that the worker's exposure to creosote cannot be excluded as a cause of his cancer." This last sentence confirms that his Honour was making a finding as to a possibility and not as to a probability. To find that a particular cause cannot be excluded as the cause of the relevant injury does not establish that on the probabilities it was the cause of that injury; it may have been the or a cause. In other words, to establish that medical evidence supports a conclusion that the cause could not be excluded as a cause of an injury does not establish, without more, that that particular cause in fact resulted in or caused the injury. To support his submission that his Honour was correct in the test which he applied, counsel for Mrs. Furner referred to two decisions. The first was that of this Court in Pyrmont Publishing Co Pty Ltd v Peters (1972) WCR (NSW) 27. There a worker had injured his neck at work and after a period of incapacity he resumed work without continuing economic loss but with a residual weakness of his neck. The worker suffered a further injury to his neck when he fell while rock fishing. The Commission awarded him weekly payments of compensation during his subsequent incapacity. On appeal, it was held that the Commission had not erred in law. Jacobs JA, who presided in this Court, said at 29: "Tt is correct, of course, that a residual weakness or propensity does not in law lead necessarily to a conclusion that the incapacity following a second injury results from the event which caused the residual weakness or propensity. That has been stressed many times in the cases, and the authorities to which we have been referred are mainly directed to such a question. What is stressed over and over again is that the particular problem which arises where there is a second injury superimposed upon a pre-existing condition caused by an employment injury is that the solution of the problem of causation is a question of fact, and that an 4 UNREPORTED JUDGMENTS Appeal Court will not and cannot interfere with the finding of fact made. If the whole of the circumstances lead the tribunal of fact to the view that there is no real connection between the later condition of injury and the earlier event which caused the employment injury, and the earlier condition resulting from that event, then what happens later will be regarded as a novus actus interveniens which will break the chain of causation. On the other hand if the tribunal of fact comes to the conclusion that there is a real practical connection between the second incident, and the condition arising from the employment injury and if there is evidence which will support that conclusion, then the Court of Appeal cannot interfere. If an earlier condition has wholly cleared up, then it is not open to the tribunal of fact to relate a later condition, which has its primary cause in a later incident, to the earlier event; because to do so is not to apply the facts, but is to go in the face of them." I do not think that this statement assists the appellant. When Jacobs JA said that the Court of Appeal could not interfere if the tribunal of fact came to the conclusion that there was a real practical connection between the second incident and the condition arising from the employment injury and there was evidence that would support that conclusion, his Honour was not referring to a conclusion as to a possibility; he was referring to a conclusion on the probabilities. It has not been contended, and indeed it could not be contended, that in a case such as the present the applicant does not have to establish his or her case on the balance of probabilities. The other decision was that of the High Court in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303. There the respondent was operating a bevelling machine when, through a fault in the machine, a heavy steel tube struck him heavily on his right hand. The hand which had not previously suffered from any disability became increasingly painful so after a time the respondent was unable to operate a bevelling machine. A few months later the condition of his right hand was diagnosed by a specialist as Dupuytren's contracture, (which involves a contraction of the finger or fingers towards the palm) and it was operated on by the same specialist at the end of the month. The condition of his right hand disabled him from carrying out his normal duties and made him unable to find steady employment. Some years later the same specialist found a recurrence of the Dupuytren's contracture in the right hand where it formerly appeared. The specialist said in evidence as to the aetiology of Dupuytren's contracture that the respondent's injury "could have" played a part in the condition of his right hand. The employer adduced medical evidence to the contrary. The decisions of the trial judge and of the Court of Appeal that there was evidence in which the jury could find that the condition suffered by the respondent was caused by the appellant's negligence were confirmed in the High Court. In his reasons, Mason J, who gave the majority judgment, said at 310: "In my opinion, this evidence left it open to the jury to infer that on the probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard, in addition to the matters referred to by Dr Sweeney in his evidence, to other significant circumstances: (a) that before the accident the respondent had suffered no disability in his right hand; (b) that the condition made its appearance shortly after the accident; (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with Dr. Sweeney's evidence, provided in my opinion a sufficient basis from which the jury could draw an inference favourable to the respondent." URJ SYDNEY COUNTY COUNCIL v FURNER (Hope AJA) 5 Earlier his Honour had said (at 310) that some of the evidence of Dr. Sweeney could well be understood by the jury as signifying that in some cases minimal trauma was the actual cause, or at least the probable cause, of the onset of the contracture. Later at 310 his Honour said this about his conclusion: "Reaching this conclusion involves no departure from the ordinary onus of proof which rests upon a plaintiff to establish on the probabilities that a medical condition or disability from which he suffers is "caused or materially contributed to' by the defendant's wrongful conduct (Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620; [1956] 1 All ER 615 at 618, per Lord Reid). Consequently, as the decision in that case demonstrates, the plaintiff will fail if all that he can show is that his disability might have been so caused (see also St George Club Ltd v Hines (1961) 35 ALJR 106 at 107; [1962] ALR 39 at 41, where it was pointed out that mere proof of default followed by injury does not show that the default caused the injury). So, in Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522; [1960] ALR 37, Taylor J, when considering the question whether exertion in the form of walking was the cause of death by cardiac failure in the case of a person suffering from an advanced form of coronary sclerosis, said (CLR at 513-2; ALR at 41: 'In any such case the question is not whether exertion may have been a factor in causing death but whether it is probable that it was, and this must fail [sic] to be determined by the evidence in the case. No doubt cases have arisen and will continue to arise where the character and sequence of events may strongly suggest that exertion played a material part in bringing about death (cf Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1941] ALR 212). But this is not such a case and it is necessary to remember that it is for the applicant to make out a case and that liability is not established merely by providing that exertion may have been a material factor." As it seems to me this decision supports the case of the Council rather than that of Mrs. Furner. It affirms that the onus to establish the cause of an injury on the balance of probabilities lies on the person claiming that to be the case, and the mere fact that a particular cause cannot be excluded does not establish that it was the cause on the balance of probabilities. It may do so if there are other circumstances which go to establish that probability when coupled with medical evidence as to the possibility. In the present case, neither in terms nor in substance did Manser J rely upon circumstances outside the medical evidence to provide a basis for his conclusion that the worker's lung cancer arose out of his exposure to creosote. In my opinion, his Honour left that result in possibility and not in probability. He did not decide that on the probabilities the worker's lung cancer was the result of his exposure to creosote. Without such a finding, Mrs. Furner's application must fail, and the appeal must succeed. The question then arises whether this Court should enter an award in favour of the Council, or whether it should remit the application for further hearing to the Compensation Court. It was submitted for the appellant that there was implicit in his Honour's reasons a decision that the evidence did not establish that creosote was, on the probabilities, the cause of the worker's lung cancer. There is some force in the argument to support this submission. His Honour had stated that there were two ways in which Mrs. Furner could establish a case, first, by positively showing that the worker was exposed to creosote so that it could confidently be said that the cancer was caused by the creosote, or by secondly proving that the 6 UNREPORTED JUDGMENTS exposure to creosote could not be excluded as the cause. By explicitly basing his conclusion on the second of these methods, so it is submitted, his Honour implicitly rejected the first. Although, as I have said, there is some substance in this submission, I have difficulty in putting Mrs. Furner out of Court on the basis of what is said to be implicit, but was certainly not explicit, in his Honour's reasoning, if in truth there was evidence before him upon which he could conclude that the worker's lung cancer resulted from his exposure to creosote. I shall therefore consider that evidence. Dr. Stewart had provided a written report, but that report was based upon an understanding that the worker had been exposed in a much more extensive way to creosote than was the case. Accordingly it is to Dr. Stewart's oral evidence rather than his written report that regard must be had. However in the course of his report, Dr. Stewart recorded that an agency of the World Health Organisation had concluded that creosote derived from coal tars are probably carcinogenic in humans. This conclusion does not of course establish that exposure to creosote caused the lung cancer which the worker suffered, but at least it shows a possibility that it may have done so. In his oral evidence Dr. Stewart confirmed that exposure to creosote was a probable cause of cancer in humans. Then, after a discussion about the possible variations in the extent of the worker's exposure to creosote, Dr. Stewart said: "T should say that for definitive assessment it would be necessary to make measurements - to attempt to make measurements - of atmospheric concentrations of the relevant chemicals which would be exceedingly difficult because it would vary depending on whether it was a windy day or a still day and the general temperature conditions but the central consideration, it would seem to me, is that this individual was doing this work over a period in excess of 15 years and occupational carcinogenesis is characterised, amongst other things, by exposure patterns of at least five years or more in virtually every case. There are exceptions, but in most cases occupational carcinogenesis from chemicals in general is associated with long-term exposure so were I composing the report in the knowledge that I have as of this instant, I would have said that the creosote cannot be singled out as being the probable cause of his cancer because there are other considerations but what is known about synergystic effects between cigarette smoking on the one hand and other defined lung cancer risk factors acting together, suggests that the two can't be dissociated - that this individual, I would suggest, was at increased risk for lung cancer because he smoked and that risk was made worse because of his likely inhalation of polycyclic hydrocarbons associated with creosote over a period in excess of 15 years." There followed some discussion of synergism between cigarette smoke and what I will call creosote fumes, and Dr. Stewart then said: "T would imagine the issue before the court and the issue here is the extent of the exposure and whether it is possible to quantify the amount of material that was actually inhaled, attributable to the creosote and so far as I can see direct evidence in that area is not available and I would find it unreasonable to say that the creosote could play no role whatsoever but so far as I can see he was at increased risk from lung cancer because of both of these considerations." Later, Dr. Stewart was asked could he say that the degree of exposure to creosote by the worker which had been put to him was probably in any way connected with his lung cancer. Dr. Stewart answered: URJ SYDNEY COUNTY COUNCIL v FURNER (Hope AJA) 7 "A. I think it is not possible to dissociate the risk factors. I think it is not possible to say that his exposure to creosote had nothing to do with his lung cancer. I would agree that it is implicit in my report that smoking is the major cause of lung cancer that we know of and that smoking contributed to his - the fact that this man smoked when he was at risk from lung cancer from the word go. The point I would make is that he was also so far as I could see exposed for many years to a carcinogenic chemical by inhalation and from my knowledge of synergism interactions between factors - I think it's reasonable to argue that this exposure contributed to his risk. I find the word - I do not think the data are available to say that he probably would have got lung cancer if he had never been exposed to creosote. Certainly it would be possible to say he probably would have got lung cancer if he had never smoked. I just don't think those data are available. Q. Doctor, just as you say that it's not possible to say that the creosote had no part in his cancer would you not agree that it is equally impossible to say that it probably did have - probably did, not possibly did - have a part in this man's lung cancer, that is equally impossible to say that. A. I don't think it's impossible to say that it probably played a part. I think it would be not possible to say - to say that it possibly played a part is on very, solid ground and to say that it probably played a part I find at the very edge of my semantic knowledge. I mean, I find it - it is a problem because I am not attempting to interpret a direct body of scientific knowledge. I am not and no one else can be extrapolating from a body of knowledge regarding lung cancer in creosote workers who smoked, who did not smoke and so on. The problem is that the court is calling for more definitive knowledge than the body of scientific and medical data will provide and that's why I am squirming with words." Dr. Stewart went on to say: "...But even if you had that data the smoking would be a problem. The workers - we have two problems here. We have the problem of quantifying the actual exposure to creosote and we have the separate problem of the risk attributable to the smoking and the risk attributable to the creosote. So there are two separate problems. Even if we had data, direct data in respect of the one - that is polycyclic hydrocarbons associated with creosote, we would not make definitive statements about proportionality of risk associated with the smoking on the one hand to the creosote exposure on the other. So there are two levels of uncertainty and that's in a sense why I'm finding myself at the limit of my, if you like, definitive vocabulary." Later Manser J put to him a description of some infrequent exposure of the worker to creosote and then asked him this question: Q. That happens infrequently. But on the other hand he's involved in maintenance on a regular basis of old poles which might have been treated up to three years before but all of those poles are subject to a regular maintenance programme which has them being treated in sort of zones, as I understand the evidence, almost continuously so that one set of poles would be treated no longer than three years subject to whether they've been attacked by insects and so on. So would one then get back to your primary proposition which is that in the circumstances of the known exposure it would be impossible to exclude an association between the exposure to these gases and the development of the cancer and you would have to include it as one of the risk factors together with his smoking." 8 UNREPORTED JUDGMENTS Dr. Stewart answered this question "yes", and affirmed that that was his primary point. Manser J also put to Dr. Stewart the situation where the worker was exposed over a period of years to what might be described as "low risk exposure, but on some days to a direct and higher exposure". Dr. Stewart replied that in those circumstances "you certainly could not discount the fact that they may have played a role. The "they" in this answer refers to the exposures described by his Honour. Before dealing with this evidence, I should refer to his Honour's analysis of the decisions on the phrase "results from" where it appears in the relevant provisions of the Workers Compensation Act. In his Honour's opinion, it could reasonably be said that an inquiry as to the cause of a compensable event is not limited to the search for a single cause or causes which may be qualified by an appellation such as "proximate" or anything which is conceptually similar. As it seems to me, this conclusion follows what appears to be the last decision of the Court of Appeal on the question. This was in Australian Electrical Industries Pty. Ltd v Marlborough (CA unreported 16 June 1989). After a discussion of the cases including Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 and Pickergill v Freight Bases Pty Ltd (1983) 3 NSWLR 117, Kirby P said: "Since Conkey I do not believe that the phrase 'results from' can, as a matter of law, be taken to import, of necessity, any notion of proximity." Meagher JA agreed with Kirby P. Priestley JA dissented, but the decision denies the necessity of a test of proximity. I would add that I am not clear as to the relevance of this question to the present case. The worker died of cancer, and the primary cancer, that is, his lung cancer, was most likely caused by his smoking, but if exposure to creosote was a cause, it operated, on the evidence, either directly or by way of synergism, as such a cause, and although there would have been no proximity in time, between exposure to creosote and the lung cancer, there would have been proximity between the cause and effect. In my opinion, almost the whole of Dr. Stewart's evidence goes to the possibility of creosote as a cause of the lung cancer and not to its probability. It goes to affirm, as Manser J said it did, Dr. Stewart's view that the worker's exposure to creosote could not be excluded as a causative factor of the cancer. Thus when Dr. Stewart said that the worker's exposure to creosote increased his risk of lung cancer from the effects of cigarette smoking, and again, when he said that he would find it unreasonable to say that the creosote could play no role whatsoever as a cause of the lung cancer, he was in my opinion speaking of a possibility, and not of a probability. Indeed his whole evidence shows how a lack of both scientific data and data of more than the most general kind as to the worker's exposure to smoking on the one hand and to creosote on the other made any conclusion very difficult indeed, and, in addition, there was the problem arising from a lack of scientific and medical knowledge about cases involving such generalised data. This difficulty is summed up in the following statement from Dr. Stewart's evidence: "The workers - we have two problems here. We have the problem of quantifying the actual exposure to creosote and we have the separate problem of the risk attributable to the smoking and the risk attributable to the creosote. So there are two separate problems. Even if we had data, direct data in respect of the one - that is polycyclic hydrocarbons associated with creosote, we would not make definitive statements about proportionality of risk associated with the URJ SYDNEY COUNTY COUNCIL v FURNER (Hope AJA) 9 smoking on the one hand to the creosote exposure on the other. So there are two levels of uncertainty and that's in a sense why I'm finding myself at the limit of my, if you like, definitive vocabulary." There are however three statements appearing in Dr. Stewart's evidence which it is submitted tend to point the other way. These statements are: "T think it is not possible to say that his exposure to creosote had nothing to do with his lung cancer." "T do not think the data are available to say that he probably would have got lung cancer if he had never been exposed to creosote. Certainly it would be possible to say he probably would have got lung cancer if he had never smoked. I just don't think those data are available." "T don't think it's impossible to say that it probably played a part. I think it would be not possible to say - to say that it possibly played a part is on very, very solid ground and to say that it probably played a part I find at the very edge of my semantic knowledge". Despite their language, I do not think these statements left it open for Manser J to find that creosote was the probable cause or a probable cause of the lung cancer. The first statement is clearly in terms of possibility. Read as a whole, I think that the same applies to the second statement. It would seem that the word "not" is left out of the second last sentence. This would make it run with the preceding sentence, and is the only way in which the last sentence makes any sense. The absence of data was the circumstance that, in the Doctor's view, led to the result that it could not be said that the worker probably would have got lung cancer if he had never been exposed to creosote. The same lack of data would result in it being impossible to say that the worker probably would have got lung cancer if he had never smoked. In other words, read in the context, the statement leaves the matter in possibility. The third statement goes closer than the others to providing a possible basis for a conclusion that the exposure to creosote probably was a cause of the cancer. However, Dr. Stewart went on to say that he found this statement at the very edge of his semantic knowledge, and a little later that: "The problem is that the Court is calling for more definitive knowledge than the body of scientific and medical data will provide and that's why I'm squirming with words." This view is confirmed by the evidence elicited by Manser J that Dr. Stewart's primary point was that it would be impossible to exclude an association between the exposure to the creosote gasses and the development of cancer and you would have to include it as one of the risk factors together with his smoking, and also with his Honour's conclusion that Dr. Stewart's unshakeable position was that exposure to creosote could not be excluded as a causative factor of the lung cancer. The evidence was not as clear as I would like it to have been, but as it seems to me, unfortunately for Mrs. Furner, the lack of clarity arises from the lack of both scientific knowledge and detailed data as to exposure both to smoking and to creosote and the effect of that exposure. No doubt it is the role of the Compensation Court judge to evaluate evidence, but I do not think that what I have been doing is to evaluate the evidence. I have both described it, and repeated the description of it adopted by Manser J. I have concluded that the appeal must be allowed and award made in favour of the appellant. The orders of the Court should be: 1. Appeal allowed. 2. Award of Manser J set aside. 10 UNREPORTED JUDGMENTS 3. Award in favour of the appellant. 4. Respondent to pay costs of the appeal and to have a certificate under the Suitor's Fund Act in respect thereof. 5 1. Appeal allowed. 2. Award of Manser J set aside. 3. Award in favour of the appellant. 4. Respondent to pay costs of the appeal and to have a certificate under the Suitor's Fund Act in respect thereof.Counsel for the Appellant: GR GRAHAM Counsel for the Respondent: A PUCKERIDGE QC and P SWEENEY 15 Solicitors for the Appellant: BARTIER PERRY AND PURCELL Solicitors for the Respondent: TD KELLY and CO253545