Green v Royal Alexandra Hospital for Children [1987] NSWCC 7; (1987) 3 NSWCCR 109 (4 November 1987)

[1987] NSWCC 7; (1987) 3 NSWCCR 109 (Matter No. 4867-87)

GREEN v. ROYAL ALEXANDRA HOSPITAL FOR CHILDREN

Compensation Court of New South Wales: McGrath CJ

16, 26 October 1987 (H)

4 November 1987 (J)

FOR WHAT INJURIES COMPENSATION IS PAYABLE - INJURY - WHAT CONSTITUTES INJURY - REGISTERED NURSE IN CONTACT WITH BABY WITH SUSPECTED CONGENITAL INFECTION - EXPOSURE PUTS NURSE'S UNBORN CHILD AT RISK OF SERIOUS CONGENITAL MALFORMATIONS - NURSE TERMINATES PREGNANCY - WHETHER SHE SUFFERED INJURY

FOR WHAT INJURIES COMPENSATION IS PAYABLE - EMPLOYMENT RISKS_ "ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT" - REGISTERED NURSE IN CONTACT WITH BABY WITH SUSPECTED CONGENITAL INFECTION - EXPOSURE PUTS NURSE'S UNBORN CHILD AT RISK OF SERIOUS CONGENITAL MALFORMATIONS - NURSE TERMINATES PREGNANCY - WHETHER SHE SUFFERED COMPENSABLE INJURY

P.M. Kavanagh, for the appellant.

D.R. Moore, for the respondent.

Cur adv vult

McGRATH CJ: This is an appeal from a decision of Commissioner Ferris on 18 May 1987 when he rejected a claim for compensation made by the appellant and made an award for the respondent.

The claim was for medical expenses under section 10 of the Workers Compensation Act 1926 arising out of the termination of the pregnancy of the appellant under circumstances giving rise to a right to compensation under the Act.

The injury alleged in the application for compensation was set out in paragraphs 5 and 6 of the application. Paragraph 5 stated that the injury occurred on 1 November 1985 at the "Lower Todman Intensive Care Unit, Royal Alexandria (sic) Hospital for Children" whilst the appellant was engaged in nursing.

The cause of the injury was stated to be:

"Contact with child infected with cytomegalovirus or other congenital infection."

In paragraph 6, the nature and severity of the injury was stated to be:

"Termination of pregnancy due to contact with contagious infection."

It should be pointed out at the outset that the termination of the pregnancy did not occur until 22 November 1985.

As will become clear in the course of considering the appeal, the present case demonstrates the inadequacy of the questionnaire style of form to deal with the kind of issue that arises in the present case.

When the case came on for hearing before the Commissioner on 1 May 1987, the Commissioner asked Mr Brezniak, who appeared for appellant, whether there were any changes to the application for compensation.

Mr Brezniak replied:

"No changes to the application for compensation, Mr Commissioner."

The appellant then gave evidence in support of her case. She stated that she was a registered nurse working in Lower Todman Intensive Care Unit and was asked:

"Q. And did you come into contact with a particular infant?

A. Yes"

She then identified the infant as Baby Linh Phan and described what her duties were in relation to the infant including intubation. This occurred on 1 November 1985. On 3 November 1985 she had further "contact" with the child when she assisted in suctioning the child.

She explained that "intubation" involved inserting a tube into the nose to relieve respiratory distress by creating an airway. "Suctioning" consisted of suctioning "the baby's secretions from its nose and pharynx."

Her duties had also consisted of changing the nappies, cleaning its face, and taking total care of the child, which involved very close proximity and physical contact. After 3 November 1985, she had some rostered days off. When she returned to the ward after these days off, she:

"noticed that there were red garbage bags and gowns which signify a sign of infection with the child, and there was a note on the cot saying that pregnant women should stay clear of this child."

She then found a note, from the staff physician, requesting that she call and speak with her. At the time the appellant was 13 weeks pregnant. She made an appointment to see Dr Burgess the following day.

That night she told her husband that the baby was suspected of having a cytomegalovirus (CMV) or some other congenital infection. Next day she saw Dr Burgess the staff physician.

The appellant stated that:

"Dr Burgess informed me that she didn't want to alarm me but the fact that the baby was suspected of having a congenital infection, or CMV, may have an effect on my pregnancy, so she was asking me to have blood taken, to test it, to see whether the close physical contact I had had with the baby could have any effect on my pregnancy."

She was asked whether Dr Burgess had had further conversation with her, to which she replied:

"She mentioned at that stage because I had spent_on 1 November, I had spent my whole shift with the baby, I had suctioned the baby's secretions from its nose and pharynx ...

She also informed me that that was a lot of close contact I had had with the baby because the virus is passed on mainly by secretions and she was concerned that I had had a lot of contact.

She suggested that I should have some blood taken straight away, which I did. I went down to the pathology unit and had blood taken for testing. She said that if I wanted her to talk to my husband about it, she was willing to ask him to come in at any time and she would speak to both of us at the same time in regard to the effect it could have on our pregnancy. I asked her what sort of effects CMV could have or, if it was another sort of congenital infection, what effect it could have. She said something to the effect that the baby (i.e. Baby Linh Phan) actually was showing physical signs of defects, it had cerebral calcification, it had heart malformation, and she said that eye and ear impairments could also be another effect on our baby if I did have a positive test to this virus."

She detailed other defects of which she was informed, viz:

"... heart/lung malformation, eye abnormalities, and possible limb effects_shortness of limbs, things like that, cerebral calcification which was showing upon the ultra sound."

The appellant then detailed the effect of this conversation upon her:

"Well I was emotionally upset to think that our baby could be affected in some way, after caring for a little baby and finding out that I could be in danger."

She detailed that she rang her husband and "talked to him for a while and crying over the phone."

She was still on shift, at this stage:

"but I was still quite upset and at the time another senior person on duty spoke with the nursing supervisor--and explained the fact that I had had a discussion with Dr Burgess and a contact with Baby Linh Phan, and she came and spoke with me and she suggested that I was too upset to continue on working and should take the rest of the shift off, which I decided to do."

The appellant then gave evidence about a meeting between herself and her husband with Dr Burgess. In relation to this she said:

"She went through a similar discussion as to what she told me about the contact that I had had with the baby, that there could be a risk to our pregnancy. She explained that I needed to have blood tests taken. She informed us on that day that the Baby Linh Phan had had a positive CMV test at Fairfield Hospital but that was unbeknown to the nursing staff when it arrived at the Children's Hospital at Camperdown, otherwise I would not have looked after the baby at all."

When further asked whether Dr Burgess specifically spoke about the CMV, she continued:

"Yes, she discussed the effects again, what CMV could have on the baby and she mentioned, I think, heart and lung malformations, and I also then mentioned to her that the baby did have results back, that it did have cerebral calcification and they were worried about its eyes and ears as well."

Further she added:

"She suggested--yes, that was another thing--that you can get false positive and false negative tests."

It was at this point that Miss Moore (referred to as Morgan), who appeared for the respondent, raised an objection to the evidence for the first time. The objection was taken in the following manner:

"Miss Morgan (sic):

It's not significantly in dispute that the applicant worked at the hospital and that Dr Burgess is the doctor at the hospital and conversations that the applicant has had in relation to the child in relation to certain tests, I have allowed to continue, but I think we're reaching an area of hearsay and I have no objection to the applicant telling us that she had tests, because I don't think that's in dispute, but any conversations in relation to tests on anybody else, not herself, is certainly hearsay and I would say is in dispute."

This objection was limited solely to the issue of raising the hearsay rule in opposition to an attempt to prove, from this evidence, the positive results of tests on the baby.

Mr Brezniak said that was not the purport of his question and asked the question again:

"Did Dr Burgess speak to you specifically about testing for CMV?"

The appellant's answer was:

"Yes, she did. She told Stewart and I that in CMV testing you can get false positive and false negative results."

Miss Moore again raised her objection.

Mr Brezniak asserted that what the appellant was told by the resident doctor was relevant to her motivation in seeking an abortion. Miss Moore made it clear that she did not raise an issue on relevance but on an issue of hearsay.

Mr Brezniak countered with the submission that it was the content of the statements of Dr Burgess that was relevant not the accuracy of the opinion expressed.

At this stage Miss Moore indicated that her objection be noted and that the "matter may well be dealt with later on." It is important to note that the matter was not dealt with later on or at all. At the conclusion of the case, the whole of the evidence had not been excluded by a clear ruling by the Commissioner on this objection.

The Commissioner said:

"I think that's a common sense approach. We will just continue, would you please."

Additional detail was then given as to what Dr Burgess said about the need to have a number of tests taken from the appellant and the baby. The need for the repetition was because they can produce false positive and false negative results.

The appellant's husband, Stewart, asked:

"Does that mean that even after Janet's had say two negative blood tests taken, she still may be infected by the virus ?"

Dr Burgess replied:

"With repeated testing, you may feel reasonably assured that the tests can be accurate, but if at this stage--if there is any other concern, I don't know what your religious beliefs are, but termination may be one point to consider as there is an element of risk to your pregnancy."

Further evidence was given as to the effect of the prospect of a termination on the appellant. A major concern expressed by the appellant was that she "couldn't get accurate results to know whether I would be affected or not."

She referred to the fact that she was 13 or 14 weeks pregnant and:

"I knew, being a registered nurse, you can't terminate after 20 weeks gestation-- that's a legal viable age of termination, and there may not be enough time for obtaining a number of blood tests--the blood tests had to be taken a couple of weeks apart from each other, and to wait for those results to come back."

Mr Brezniak then sought to introduce further statements attributed to Dr Burgess as to investigations for congenital infection tests at Sydney and Melbourne Hospitals.

Miss Moore again objected on the basis that any of the contents of the conversations with Dr Burgess were inadmissible as being (a) irrelevant and (b) beyond the scope of the appellant's claim.

The Commissioner said he understood the purport of the evidence related to the motivation of the appellant in relation to the abortion. The objection was not ruled upon but the question was withdrawn.

Mr Brezniak then sought to adduce evidence as to conversations between the appellant and her obstetrician Dr Biswas.

Miss Moore again raised objection. The Commissioner again did not rule upon it.

The appellant then gave evidence that Dr Biswas was not in favour of a termination because she had one negative test.

The husband asked him whether or not false negative results can occur. The doctor agreed that they could. He then added that because you never know for certain the appellant could be the "unlucky one."

The appellant then detailed the careful consideration she and her husband gave to the information they had received and the consequences for themselves if the child was affected leading to their final decision to seek an abortion.

Mr Brezniak tendered a letter written on behalf of the appellant to the respondent setting out the basis of the claim along the lines upon which the case had been conducted.

Objection was taken to this on a number of grounds. The Commissioner took a curious course. He did not rule on the objection. He stated:

"I will admit those but I will take cognisance of what you have said."

Finally, the appellant gave evidence to the effect that she was then currently pregnant again.

In cross-examination, the appellant admitted that her own first blood tests for CMV had been negative, and that the rubella test was also negative. She also agreed that tests done after the termination were also negative. She was then asked:

"And the fact is, of course, that you did not even have this virus CMV?"

to which she answered:

"We still don't know."

It was then put to her:

"And after you got the results, Dr Burgess indicated that you were not at risk?"

She answered:

"We had only one test result, at that stage. Dr Burgess wrote us a letter, which we received in late January of 1986, stating to us then that she suggested that we may not have been at any risk. The termination was in November."

It was then put to the appellant that the baby did not have CMV. The appellant answered:

"It did have one positive test for CMV. "

Miss Moore then asked:

"Q. That was not at your hospital?

A. No.

Q: The tests at the Children's Hospital showed that the baby did not have CMV?

A: Yes."

At this stage Mr Brezniak indicated that he proposed to call the husband.

Miss Moore registered her objection in the event that the husband was to be examined as to substance of the conversations with Dr Burgess.

Her objection was on the basis of (a) relevance and (b) hearsay. Mr Brezniak then submitted that the conversation could not be hearsay. As to relevance, he indicated that he was calling the husband solely to corroborate the appellant. He said:

"Now if, Mr Commissioner, you do not want to hear the evidence corroborated, then I'm happy that the evidence be not called."

The Commissioner replied:

"Well, a ruling on that, as far as I am concerned, I don't think it's necessary for Mr Green to give evidence on that matter."

Miss Moore then said that it was not necessary for Mr Green to be called and limited her objection to the relevance of the evidence.

In the course of a final discussion, as to whether or not expert evidence were to be called on either side, Mr Brezniak said he saw no need to lead expert evidence "if the medicine is not in issue".

The Commissioner said:

"I don't say it's not in issue, but there's enough information before me now, Mr Brezniak, that I don't really need."

Reports from Dr Burgess and Dr Biswas were then tendered by the respondent.

Mr Brezniak then tendered the correspondence between the appellant's solicitor and the respondent's insurer.

An attempted tender of a further medical report by Dr Burgess was not pressed when objection was taken to it on the basis of it's not being served.

Miss Moore, on behalf of the respondent, then addressed on the basis that the appellant had not proved she had suffered employment injury because she had not proved she had contracted the virus and, the more so, because the child was not infected with the virus.

In dealing with the appellant's evidence about her concern about having the termination, Miss Moore contented herself with submitting that:

"that's all a matter for the applicant."

No challenge was made to the evidence. It was said to be irrelevant because the issue was infection fact or not.

On behalf of the appellant, it was submitted that the termination was the injury suffered by the appellant and this clearly resulted from her employment.

A final submission on behalf of the respondent summarised the respondent's case as follows:

"1. If the applicant here had contracted the virus, she has an injury, but a fear of contraction is not an injury.

2. The submission that the termination itself was the injury was bad in fact."

The decision was reserved and a written decision was handed down on 18 May 1987.

Having regard to the nature of the issues raised, and hotly contested, the decision is surprisingly brief. The more so in view of the fact that the Commissioner had indicated that it "was the most complicated issue" he had had before him since his appointment.

The issues raised which required decision were as follows:

(a) Whether the evidence of the appellant as to the substance of the conversations with Dr Burgess and Dr Biswas was accepted or not.

(b) If it was, did it cause the appellant to decide on a termination.

(c) Was such a decision reasonable in the light of all the circumstances.

(d) If the matters alleged by the appellant to have been conveyed to her by Dr Burgess, coupled with the notice as to danger to pregnant women, did happen, could they constitute an injury if they resulted in the action taken by the appellant.

(e) If the termination resulted from the matters alleged by the appellant, even if neither she nor the sick baby were proved to have contracted the CMV or other infection, could the termination itself be regarded as an injury which arose out of the employment because it was caused by the conditions of her employment in that she was, as a result of her employment, brought into contact with a child suspected of suffering from an infectious condition and which the appellant, on reasonable grounds, was led to the belief that she was at risk of infection.

(f) Whether the appellant did contract an infection which resulted in the reasonable need to terminate the pregnancy.

(g) Whether the evidence of what Dr Burgess told the appellant was relevant and admissible.

It appears to me on the face of the record that the Commissioner did not decide the issue of the admissibility of the evidence of the conversations with Dr Burgess. The evidence was admitted. It also appears that the objection to the evidence was limited to two grounds.

Firstly, that it was not evidence of the truth of the opinions attributed to Dr Burgess.

This objection was not sound if it was open to the appellant to frame a case on the basis of a reasonable reaction to a state of affairs resulting from the employment. In my opinion it was open to the appellant to frame a case on this basis. It was perfectly clear that the case was framed in this manner and on that basis the evidence was relevant and admissible.

Secondly, that the evidence was inadmissible as infringing the hearsay rule.

In my opinion, the hearsay rule was not infringed, neither was it involved in any way. The evidence went only to prove what she said, not the truth or otherwise of what she said.

For example, in a case where a claim is made for compensation arising from a fight between a worker and his foreman, the precise conversations from which the fight arose would be primary evidence, not hearsay. If the conversations disclosed a disagreement about a private affair there would be no employment injury. If the conversation disclosed a disagreement about the way a job was to be done, the injury would result from the employment.

The conversations deposed to it in the present case were intimately connected with matters directly connected with the appellant's employment.

If the evidence were accepted and if the action resulting therefrom could not be regarded as unreasonable, it would appear to me that the appellant did suffer an injury arising out of her employment.

It appears that there was no real dispute about these facts. There is no reference in the judgment to the effect that the Commissioner disbelieved the appellant as to the substance of the conversations. It is clear that he decided the case on a different basis altogether.

The only case made out by the appellant was the one just described. There being no rejection of the evidence which established this, the Commissioner should have found for the appellant.

The only basis of not doing so appears to be either an acceptance of Miss Moore's submission that it was outside the scope of the case set out in the application for compensation, which had not been amended, or that the Commissioner failed to understand the nature of the case led or refused to consider it if he did understand it.

If the case led was not barred by the nature of the pleadings, then the Commissioner should have found for the appellant for reasons already given.

The application for compensation alleges that the termination resulted from the appellant's contact with an infected child. In my view, even if the appellant is to be tied strictly to the precise words in the application, she could succeed if she proved only that, on the probabilities, the child was infected with some kind of congenital infection.

On the evidence, a termination would be reasonable where a pregnant woman came into contact with such a child.

There was ample evidence of the possible serious consequences which had been conveyed to the appellant. There was some evidence that the child was infected. There was evidence of the positive test before the child entered the respondent's hospital. The statement to this effect by the staff physician was evidence against the hospital. The circumstances as to the way the child was nursed, coupled with the warning notice, was supportive evidence.

Apart from this, there is no doubt that from the very start the appellant's case was never framed on the basis that the appellant was infected or that it was essential to establish the infection in the child.

The husband was sent out of the hearing room at the commencement of the hearing.

The case was clearly laid in detail, even before the objection was taken, and when it was, Mr Brezniak clearly set out in detail what case he was bringing.

It is trite to say that the proceedings before the Commissioner was not comparable to a court of pleading.

The respondent had at least two options:

1. To insist that the Commissioner rule on the objection with a view to forcing a rejection of the evidence. This was not done.

2. To seek an adjournment to meet the case as led. This was not done.

In those circumstances, the case as led was fully presented and had ample evidentiary support in the evidence that was admitted and not rejected.

The fact of the giving of this evidence is recorded by the Commissioner in the second paragraph of his decision. He gives no indication as to what view he took of this evidence. He certainly does not indicate that he rejected it.

It is clear that the only case upon which he adjudicated was the case upon which Miss Moore addressed him, which was a case which was never led by the appellant. This case was that the child was infected with CMV, the appellant contracted CMV resulting in the need for termination. This is the only matter dealt with by the reports of Dr Burgess and Dr Biswas.

No point has been taken in the appeal on the basis that the submissions discussed herein were outside the grounds of appeal.

The issues have been clearly raised by the parties in the appeal, and it is my view that it is proper to deal with the same on the real merits and justice of the appeal.

The only outstanding matter is whether I should send the matter back to the Commissioner for reconsideration, or whether the uncontested facts are so clear that it would be proper for me to enter the award which the Commissioner should have entered in favour of the appellant. In deciding this question, it is relevant to consider the facts which were not contested by the respondent, the facts that the respondent established, and the facts which were let in by the way the respondent conducted its case.

I will deal with these in order.

1. The appellant had such a degree of contact with the contact child as to place her at risk of infection if the child was actually infected.

This was established by the report of Dr Burgess of 13 November 1985 tendered by the respondent. The report set out in detail the nature of the contact, which corroborated the appellant's version. The report then notes that Dr Burgess "arranged for blood collected from her on 8 November 1985 to be examined for rubella, cytomegalovirus, toxoplasmosis and herpes antibodies." This was done in the context of the appellant being "pregnant LMP, 3 August 1985."

2. The baby was suspected of having congenital infection (report of Dr Burgess 13 November 1985).

3. On the basis of the conduct of the case, without reference to the evidence of the appellant, it was established_or at least not disputed_that the contact baby had had one positive test for the infection CMV.

I have already quoted this evidence, but it is convenient to refer to it again. On page 28 of the transcription, Miss Moore for the respondent, asked:

"Q. The baby did not have CMV did it?

A. It did have one positive test for CMV.

Q. That was not at your hospital?

A. No."

If the correctness of this positive test was disputed, the respondent should have moved to have the answer struck out as non-responsive. This was not done. The evidence remained, and did not depend on the appellant's evidence, having been allowed to remain. The only conclusion open was that there was one positive test for CMV.

It follows from this that there was evidence which allowed the appellant to put the case that she did within the scope of the application as drafted.

This application limited the issue to:

"termination of pregnancy due to contact with contagious infection."

Because of the matters mentioned above, there was evidence, not depending on the acceptance of the appellant's evidence, that the contact child was infected with CMV. All the appellant then had to prove was that the termination resulted from the contact with the child.

It is clear that there could be two ways of proving this:

1. by proving that the appellant became infected thereby necessitating the termination; or

2. by proving that the risk of infection caused the appellant to seek the termination.

The appellant sought to establish her case under the alternative 2.

It appears to me that the uncontested evidence tendered by the respondent, was that:

"Mrs Green had her pregnancy terminated on 22 November 1985, when she and her husband had discussed the situation with several doctors." (Report of Dr Burgess dated 22 January 1986.)

and

"Janet felt she would not like to run the risk of having an affected baby. Following a long discussion with Janet and her husband, they both felt that even though there was only a very small risk of contaminating the developing foetus, they would rather terminate the pregnancy. Thisdiscussion took place at my rooms on 19 November 1985. I referred them to Dr Kuah and on 23 November 1985 a termination was carried out at Westmead Centre." (Report Dr Biswas dated 29 April 1986.)

In my view this evidence, called by the respondent, establishes two major matters:

1. It is completely consistent with the evidence given by the appellant as to the substance of this conversattion. It is also consistent with the proposition that the respondent did not dispute this evidence.

2. Without reference to the evidence given by the appellant, this evidence establishes the following facts and inferences, which could not be disputed by the respondent because it was evidence tendered by the respondent. The reports were admitted and were evidence of all the facts stated therein.

(a) The reports establish that the cause of the appellant seeking the termination was the risk of having an affected baby, even if the risk was small.

(b) They establish that the appellant had the termination "when she and her husband had discussed the situation with several doctors."

(c) They further establish that the conversation with Dr Biswas did include a discussion of the degree of risk.

(d) The other inference that could be drawn from Dr Biswas' report is that the action of the appellant was not unreasonable. If it were, he would never have referred her to Dr Kuah, and the termination would not have been done at a public hospital.

The fact of her pregnancy, at the time of hearing before the Commissioner, would negative any ulterior motive in the termination.

Faced by the case brought by the appellant, the respondent should have pressed the Commissioner to rule on the admissibility of the evidence as to the conversations with the doctors given by the appellant.

The evidence could not have been rejected on the basis of hearsay, in view of the case being presented by the appellant. It could only havebeen rejected on the basis of it being outside the scope of the case as framed in the application.

If my conclusion is correct as to the respondent having let in the evidence of the positive CMV test on the contact baby, the evidence could not have been rejected as irrelevant for the reasons already discussed.

If this conclusion is incorrect, the appellant could have sought to amend the application.

Subject to protecting the interests of the respondent, it would have been proper to allow this amendment. The interests of the respondent could be protected by an adjournment to call Dr Burgess and Dr Biswas to refute the appellant's evidence.

It could be argued that, because the case presented was so clear as to leave the respondent in no doubt as to its nature, the respondent gave up the right to call this evidence because, without pressing for the Commissioner to rule on the objection, the respondent failed to cross-examine the appellant on the basis that the evidence about the substance of the conversations was incorrect.

In view of all these considerations, I am of the opinion that the appeal should be upheld.

On the basis of the uncontested evidence that arises from the respondent's case, it is my view that the only proper conclusion open to the Commissioner was that the termination of the pregnancy resulted from a reasonable fear of serious risk to the unborn child as a result of the exposure of the appellant to the child who was suspected to have a congenital virus infection.

This conclusion is even stronger if my views are correct as to the evidence, let in by the respondent, that one of the tests on the child had been positive for CMV.

If the effect of the failure of the Commissioner to reject the evidence of the appellant and the apparent acceptance of it, when he indicated he did not require its corroboration, is added, the conclusion is overwhelming.

In my opinion the Commissioner fell into error of law when, on the facts established before him, he found "that the direct action taken by

the applicant with the agreement of her husband, does not constitute an injury".

On the uncontested facts, the termination was a personal injury which arose out of the employment. Alternatively the termination resulted from an injury in the course of the appellant's employment or resulting from the employment in that, as a result of her employment:

(a) she was exposed to contact with an infected child under circumstances where there was a risk of her unborn child being affected or malformed; or

(b) she was exposed to contact with a baby suspected by the respondent of being infected with a congenital infection, which could pose a risk to the appellant's unborn child, and

the appellant's action in seeking the termination was not unreasonable.

For all these reasons, I am of the opinion that, in lieu of the award entered by the Commissioner, an award should be entered in favour of the appellant.

I set aside the award of the Commissioner and, in lieu thereof, I enter an award in favour of the appellant, under section 10, in the sum of $2,538.65 with costs, Part IV.

I order the respondent to pay the appellant's costs of the appeal.

Appeal allowed

Solicitor for the applicant: D.J. Bresniak

Solicitor for the respondent: E.G. Scarparo