Perkins v Commonwealth Bank of Australia Ltd & Ors

HER HONOUR : In these proceedings the plaintiff, Shelley Lyn Perkins, claims damages against the defendant, the Commonwealth Bank of Australia Ltd (to which I will refer as “the Bank”), as a result of an injury to her right hand which she sustained in the course of her employment on 28 August 1997. At that time the plaintiff was employed, not directly by the Bank, but by Adecco Centacom Pty Ltd (to which I will refer as “Adecco”) which company assigned her to work for and in the premises of the Bank. There is no doubt that, on the date mentioned, the plaintiff was working as a bank teller in and at the direction of the Bank. A shelf in a cabinet unit, adjacent to the plaintiff’s work station, collapsed, causing a coin tray to strike her on the right hand. There is equally no doubt that the plaintiff suffered some injury as a result of the collapse of the shelf. What is in issue as between the plaintiff and the Bank is the cause of the collapse, and, more particularly, whether the plaintiff has demonstrated that the Bank was in any way in breach of the duty of care it owed her (it not being contended on behalf of the Bank that there was no such duty); and, if so, the nature and extent of the injury the plaintiff sustained. Both questions were vigorously in issue; the latter, the nature and extent of the plaintiff’s injury, revealed a more than usually wide divergence between the competing positions of the parties. To that I will return.

The Bank has cross-claimed against Adecco, claiming indemnity or contribution pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 , damages arising from an asserted breach of duty of care to the Bank, indemnity pursuant to an employment agency agreement between the Bank and Adecco, and damages for asserted breach of that agreement. I will return to the detail of the cross-claim in due course. In a second cross-claim, Adecco claims against Commercial Union Workers Compensation (NSW) Ltd (to which I will refer as “Commercial Union”) indemnity in respect of any liability it is found to bear. This claim is based upon an insurance policy issued by Commercial Union and held by Adecco.

I will begin with consideration of the circumstances in which the plaintiff was injured, and whether she has proven that the Bank failed to discharge its duty of care to her. liability of the Bank

In February 1997 the plaintiff responded to an advertisement placed by Adecco seeking part-time customer services officers, for work in a then unspecified bank or banks. She was engaged by Adecco to commence work in April, and deployed to work at various branches of the Bank. At that time she was not assigned to any particular branch and was, on different days, directed to work at different branches. After a time she found that she was regularly assigned to two branches, one in Forest Road, and one in a Westfield complex, both in Hurstville. The plaintiff described her duties as: “Receiving cash from customers, counting, verifying, bundling cash, collecting coin, giving out coin orders, filling up your mobile from teller A with coin requests, cash allocations and cash requests, batching.” (T24)

The “mobile” or “cash mobile” to which the plaintiff referred was a timber and metal cabinet, containing drawers to hold paper money, and shelves to hold coin trays. Each cabinet was double-sided, so that it could be shared between two tellers, one sitting on either side of the unit. Coins in metal coin trays were placed in the mobile on the shelves, in descending order, that is, the higher denominations ($2, $1 and 50c) coins were placed on the top shelf, and the lower denomination coins below. The plaintiff estimated the coin trays to be about eight to ten inches by twelve inches. When full, they were too heavy to be lifted with one hand.

Although the cabinet that contained the coin trays was referred to as a “mobile”, it seems that it was in fact fixed in position and stationary.

During the afternoon of 28 August 1997, when the plaintiff attempted to extract a coin tray from the top shelf of the cabinet, the shelf collapsed and the coin trays fell on her hand and her right knee. Bundles of coins fell to the floor. In evidence in chief the plaintiff described the incident in this way: “I was serving the overflow of some of the commercial customers and I was serving the manager of Jay Jay Jeans and I had done his banking, all of his deposits he put in and he had a coin order to be filled. So I bent down and knelt on the ground to get the coins out of the mobile and reached in across to pull the coin trays towards me that were on the top shelf and when I reached in to grab the one that was on the far right-hand side over near my partner that was in the box with me, I was pulling it back. I must have put my weight on the – weight of my hand on the heel of my hand on the shelf and the shelf collapsed in the right hand corner closest to me. … My hand was caught in there and I pulled my hand out, as I pulled my hand out the shelf finished collapsing down and the coin trays were out onto the back of my hand and my right knee.” (Tt28-30)

The plaintiff noticed what she described as a broken clip, which she surmised had been part of the structure supporting the top shelf, on the floor. In cross-examination she said that her hand was trapped between the coin trays and the shelf, temporarily preventing the complete collapse of the shelf. When she withdrew her hand, the shelf fell further and the trays fell out. It was then that the trays and coins hit her on the hand and knee.

The design of the shelving system was the subject of extensive evidence. Photographs (exhibit 6) depict an apparently conventional cabinet fitted with vertical runners screwed to each side wall, the runners having sockets for the insertion of brackets onto which shelves may be placed. The weight of the shelves created a pressure which forced the brackets into the sockets, thus stabilising the shelves. The system is constructed in such a way as to allow for variable shelf height. Evidence from Mr Wallace Shiu, at the time the chief architect of the Bank, was that the brackets and the runners were of steel. It was, presumably, to one of the brackets that the plaintiff was referring when she said that she saw a broken clip on the floor. the cause of the collapsing shelf

Two alternative theories to explain the collapse of the shelf were proposed. One was that one of the metal pins or clips upon which it sat had broken. Implicit in this theory was that the weight of the coin trays exceeded the load-bearing capacity of the brackets, which were of inadequate strength to support the weight imposed upon them. The second theory was that the bracket had worked loose from its moorings and had fallen out of its socket. The explanation posited for this theory was that the cabinet itself had suffered some damage, (perhaps a blow from a floor polisher) and had become distorted so that the shelf did not sit firmly on the brackets. The stability of the shelf depended upon the firm insertion of the bracket into the socket. The weight of the shelf was itself a factor in securing the brackets into the sockets.

The evidence to support either theory was scanty to say the least.

The basis for the theory that the bracket had worked loose and had eventually fallen from the side wall of the cabinet, is to be found in a series of internal memoranda in the Bank which came into existence as a result of the investigation that followed the incident. In a memorandum (exhibit C) dated 17 November 1997, Mr Darryl Neil, identified as a Central Branch Manager, observed that the coin compartment was “off square” at the top, about one centimetre, and was, accordingly “not the tight, snug fit it is meant to be”. Mr Neil recorded that he had conducted an experiment on the shelf, and found that it was possible to move it, and that when he “slid the shelf about” one bracket became loose and fell out, whereupon the shelf tipped forward. He theorised: “It is possible the peg worked itself loose over a period of time in which case it would not have been noticed.”

In oral evidence Mr Neil said that on inspection he noticed a gap of about three millimetres between the shelf and the end panel.

A response (exhibit D) to Mr Neil’s memorandum was written on 20 November 1997 by Mr Garry Scott, who identified himself as “Property Officer, Maintenance”. Handwritten onto that memorandum, dated 24 November 1997, is the following: “ … I think that if the bracket was not in place then the shelf would not have stayed up at all. What appears to be the real cause is that the cupboard has become ‘off square’ slightly, making the bracket slightly loose.”

I am unable to attach very much weight to this theory. It is quite speculative and unsupported by any objective evidence. It represents no more than a possibility.

The evidence to support the fracture theory was solely that of the plaintiff. In evidence in chief, in describing the incident, she was asked if she could see anything on the floor apart from coins, to which she replied: “There was a broken clip which must have been holding the shelf up, in the right-hand corner.”

She said that Ms Adelina Marsic, who was then the Assistant Manager of the branch, and who came to her assistance, immediately made the observation that: “… that must have been what happened, that the clip had broken and the shelf had broken underneath.”

When asked about the same subject matter in cross-examination the plaintiff replied: “Yes. There was something on the floor that looked like a clip.” She was not further pressed on whether or not the clip or bracket itself was broken.

Not too much weight can be placed upon the assertion by the plaintiff that the clip had broken. It was not entirely clear that she was intending to say that the bracket itself had broken, as distinct from the structure of which the bracket was part, that is, the runner together with the clip. Nobody, so far as the evidence established, inspected the cabinet at the time and found the broken remains of the bracket in the socket, or on the floor or near the cabinet, as might have been expected if it had indeed broken.

However, on balance, and on the extremely scant evidence available, I have concluded that the broken bracket theory is to be preferred. My reasons for this conclusion are: (i) the plaintiff’s evidence, slight though it was, that the clip was broken. She was not challenged on that assertion; (ii) the “worked loose” theory was no more than post-incident speculation; (iii) the absence of any indication that either Mr Neil or Mr Scott considered the possibility that the bracket had broken, or made any investigations to that effect; (iv) evidence (to which I will come) that the weight of the coin trays was such as to cast an undue burden on a structure; (v) the collapse occurred as the plaintiff pulled a coin tray towards her, and, probably, also applied the weight of her hand to the shelf. This suggests to me that the sudden pressure and increased weight placed upon one bracket was greater than the bracket could sustain, causing it to fracture. * * *

The next question is whether the fracture was caused, as contended on behalf of the plaintiff, by the imposition of an excessive weight load upon the shelf.

A great deal of time was taken up as the trial progressed, with the question of the weight-bearing capacity of the shelf, and the weight of the coin trays. Indeed, this evidence was being accumulated at a point when the trial had otherwise concluded.

The trial began on 11 March 2002 and continued, on successive days, until 22 March, concluding (so it was then believed) with the addresses of counsel. But after addresses appeared to be complete, senior counsel for the plaintiff sought to adduce additional evidence, and this was done, initially, on 22 March. Yet more evidence was adduced on 28 November 2002. On this occasion the evidence was solely directed to the weight of the coin trays. I will refer to it below.

Mr Henry Burn, a consulting engineer, was retained by the plaintiff’s solicitors to inspect the shelf unit. By the time of his inspection (late in 1999) the unit had been modified by the replacement of the runner and bracket system with a solid metal bar secured horizontally to the side walls of the cabinet. Nevertheless, Mr Burn was able to gain an appreciation of the original construction, which was, as I have noted above, of a conventional and familiar kind. In a report dated 17 December 1999 (part of exhibit B) Mr Burn described the unit as: “similar to domestic shelf support systems and was not adequate for any type of industrial loading.” (T286/25)

At that time Mr Burn was unable to ascertain the weight of the coins stored in the tray, and attempted to perform the exercise of determining whether the weight imposed upon the shelf was excessive by making certain assumptions. Among these was an assumption (because of the size of the shelf) that the top shelf contained six coin trays, the weight of each of which he calculated at 15 kilograms, giving a total weight (on his assumption, which was erroneous, of six coin trays) of 90 kilograms. The plaintiff’s evidence, however, was that normally only three coin trays would be contained on the top shelf. Mr Burn considered the weight of six coin trays to be: “well in excess of the design capacity of the type of bracket selected to support the shelf.”

He considered this to be unsafe. That opinion of course is of no materiality being based on a false premise. In oral evidence in chief Mr Burn was asked to comment on the safety of the structure on the assumption that the shelf contained three, not six, coin trays. That would be a weight of 45 kilograms. He said that he considered that also to be unsafe. He thought the “normal working capacity” of the shelf on the brackets was in the order of 5 to 7 kilograms. He pointed out that, the surface area of the shelf being considerably larger than the surface area of three coin trays, it was possible to locate the coin trays so as to place the entire load on one small bracket, without any weight distribution to the other three brackets. This created an additional level of danger.

After the conclusion of the oral evidence and addresses, Mr Burn was asked to, and did, conduct an experiment. With the plaintiff, and legal representatives of the parties, he attended a city branch of the Bank, where he was given coin trays filled, at the direction of the plaintiff, with rolls and packages of coins of $2, $1, and 50c denominations. He weighed these at a total of 48.4 kilograms – well above what he had previously asserted to be the carrying capacity of the shelf as it was constructed. This evidence was given in the form of a supplementary report dated 5 April 2002.

The plaintiff also gave additional evidence, on 28 November 2002. Her evidence was to the effect that she had directed the filling of the trays so as to resemble, to the best of her recollection, the quantity of coins that had been in the trays on the date of her injury. She was challenged in cross-examination on this assertion, it being put to her that she had overfilled the trays and exaggerated their weight and that what she had identified as the quantity of coin in the trays on this occasion was in conflict with her earlier evidence.

Two photographs (exhibit 21) show a coin tray filled at the plaintiff’s direction with 50c coins. Certainly, it appears to be loaded to the very extent of its capacity, the rolls and packages of coins standing well above the sides of the tray. Senior counsel for the Bank contrasted this with a description by the plaintiff in her evidence in chief, when asked how full the coin trays had been. Her reply was: “Fairly full, I had filled them before going to lunch.” (T28-30)

If one were to engage in a pedantic and detailed dissection of the evidence, it would be possible to conclude that the answer given by the plaintiff (at a time when the weight of the coins had not assumed the significance it later did) sits uneasily with her later exercise in demonstrating the manner in and the extent to which the trays were filled (an exercise engaged in at a time when the weight of the trays had emerged as a real issue). The trays as filled would warrant the description “very full” rather than “fairly full”. However, I do not think that so much can be read into the evidence, particularly the answer given in the early stages of the trial. There is nothing untoward about the tray as loaded at the plaintiff’s direction and I do not accept that what should at worst be seen as a minor discrepancy in her evidence should be given any weight. I accept that the coin trays were filled to the extent indicated by the plaintiff and therefore of approximately the weight stated by Mr Burn in his second report.

I therefore work on the basis that the shelf, immediately before its collapse, was bearing a load of approximately 48.4 kilograms. That raises the question of whether the shelves were deficient to support that weight and thus deficient for the purpose to which they were put. Apart from Mr Burn’s assessment, and his description of the system as “domestic”, the plaintiff relied upon an assertion in exhibit D, the November memorandum written by Mr Scott, that: “the manufacturer recommends a weight limit of up to 20kgs.”

There was no direct evidence of any such recommendation by the manufacturer, notwithstanding that there was in evidence (exhibit 11) a manufacturer’s specification sheet. That document contains no reference to the load-bearing capacity of the shelves or to any recommended weight limit. In this respect, a passage in the cross-examination of Mr Shiu sheds a little – but only a little – light. This was left in a somewhat unsatisfactory state. It is as well to set out the relevant passage in cross-examination in full: “Q: And is it the situation that you have seen a memorandum from Mr Gary Scott, Property Officer, Maintenance New South Wales for the bank, in which he records an inquiry of the manufacturer to find out what the hold limits are? A: I can’t recall seeing that particular memo you are talking about. (Document shown.) No, I haven’t seen this memo. If I’d seen it I would put my initials there. Q: (Approached) Mr Shiu, it is a memorandum prepared by Mr Scott on 11 November 1997, isn’t it? A: Yes, that’s correct. Q: It is headed ‘Commonwealth Bank’? A: Yes. Q: And it is a memorandum asking the manufacturer, Howard Silvers, to say what the load rating is? A: (Witness nodded.) Q: It rather suggests that nobody knew until that enquiry was made what it was, doesn’t it? A: That appear to be the case. But very often when trade representative come to architect’s office we have general discussion over the products. During those discussion generally the representative say, ‘Okay is roughly, can take care of how much weight’.” (Tt 427 - 428) The cros-examination did not elicit any evidence of what information, if any, was provided by the manufacturer in response to Mr Scott’s inquiry.

Mr Shiu disagreed with Mr Burn’s description of the shelving unit as “domestic”. His view was: “… domestic means it is general use for domestic purpose. Whether in fact one will argue this is domestic or commercial is a fine line, actually. But put it this way, a shelving system used in domestic situation, I would look at things like commonly known as a ‘pinhole system’. In other words, you look at your kitchen cupboard, a domestic situation has just a wall, kitchen shelving consists of a series of drill holes on the division and the contractors place a metal or plastic stud to support the shelving. Again you might call this domestic if you think that it can be domestic. But this particular metal support system is much superior than the pinhole system I just described. I would call it a heavy duty rather than commercial which might be misleading, I would call it a heavy duty shelving system.” (T426)

Mr Shiu was asked to describe the type of weight that the brackets could hold before breaking and replied: “I can only put guess, because in this place the manufacturer hasn’t stipulated the loading capacity of this particular support. But from my experience, dealing with this type of fitting, I mean my professional experience would suggest they should hold, say 20-kilo per support quite adequately.” (T426)

He said that that meant, with four supports, a shelf resting on those supports would be able to hold 80 kilograms in total. I find it difficult to accept Mr Shiu’s assessment of the load bearing capacity of the shelf as 80 kilograms. Such an assessment is, in my opinion, outside the ordinary area of expertise of an architect, and although his evidence purported to be made on the basis of “professional experience”, it was prefaced by the words “I can only put guess”. Mr Shiu had not seen the unit in question, and, although it is not entirely clear, appears not to have seen (or been conscious of seeing) any units of the same kind; he said he had only seen the unit from a photograph (T427). This is, in my view, too flimsy a basis for the assessment to be of assistance. Finally, it is inherently improbable that a shelf unit of the kind in question could reasonably be expected to hold a weight of 80 kilograms. In this regard the evidence of Mr Burn is to be preferred.

I have not overlooked the evidence, given in affidavit form, adduced on behalf of the Bank after I gave leave to the plaintiff to reopen, in the circumstances mentioned above. The affidavit was sworn by Mr Glen Smallwood, the Assistant Manager, Insurance, for the Bank. Mr Smallwood deposed that, at the conclusion of the hearing of this proceeding in April 2002, he was requested by the Bank’s solicitors to arrange and conduct an experiment, using shelving of the same kind as the plaintiff had used in 1997, and progressively placing weights of up to 100 kilograms on the shelves, until a shelf broke or a bracket failed. Mr Smallwood deposed to the efforts he had made, unsuccessfully, through various branches of the Bank, to locate shelving of the relevant kind. It was therefore not possible for the Bank to adduce evidence of the actual load bearing capacity of the units.

It is now necessary to consider the extent to which use may be made of Mr Scott’s written assertion that the manufacturer recommended a weight limit of up to 20 kilograms, contained in exhibit D. The transcript records that exhibit D was admitted without objection. It is dated 20 November 1997. It is a reasonable inference that the assertion of the recommended weight load at 20 kilograms was derived by Mr Scott from the manufacturer of the unit, Howard Silvers, in response to his memorandum of 11 November, referred to in the cross-examination of Mr Shiu and extracted above. The facts that Mr Scott is identified as “Property Officer, Maintenance”, that he was the author of both memoranda, and the timing of the two memoranda, provide a sound foundation for such an inference. I therefore think that I should accept that the evidence, scant though it is, establishes that the manufacturer’s recommended weight limit for the shelf was 20 kilograms. Indeed, this is consistent with the approach taken by senior counsel for the Bank in oral submissions (T445). Senior counsel accepted that Mr Scott had made the enquiry, and had been given the information recorded, but argued that I should conclude, on the basis of Mr Shiu’s assessment, that the information was “clearly wrong”. I reject this submission. Once it is accepted that information from the manufacturer was that the load bearing capacity of the shelf was 20 kilograms, that should be also accepted as a correct and accurate statement of its capacity. Even on the assumption that it is a conservative and cautious assessment, it can be seen that the shelf was required to bear an excessive weight. That is less than half the weight that it was required to bear. I am satisfied that the excessive weight was what caused the clip to break and the shelf to collapse. negligence

The duty of care undoubtedly owed by an employer to employees encompasses, inter alia, the provision of a safe work place, the provision of safe and suitable furniture and equipment with which to work, and the protection of employees against reasonably foreseeable risk of injury. That the Bank was not, strictly speaking, the plaintiff’s employer is immaterial. For all relevant purposes, it was in an identical position to an employer. Its rights included the right to direct the plaintiff how to perform her duties. Its obligations included the obligation to provide her with a reasonably safe workplace, with reasonably safe and suitable furniture and equipment, and to protect her against reasonably foreseeable risk of injury. No contrary argument was put on behalf of the Bank.

As events clearly demonstrated, the furniture provided for the plaintiff’s use was not safe and suitable for the purpose to which it was put. The shelving system was too flimsy to accommodate the constantly imposed weight of the coin trays.

Two issues remain for determination. Was the injury to the plaintiff reasonably foreseeable? Was the injury, by the exercise of reasonable precautions, preventable? foreseeability

Relevant to this question, the plaintiff gave evidence that on two occasions she had been told that this was not the first incident of its kind. She said that, immediately after the incident, Ms Marsic had told her that this was not the first time that the shelf had collapsed. The plaintiff did not know whether Ms Marsic was referring to the particular cabinet on which she was working or to another cabinet of the same general type.

The plaintiff also said that something similar had been said to her by Mr Neil, on an occasion some time after the incident, when she encountered him by chance in a fruit shop. She said that on that occasion Mr Neil had told her that she was not the first person “that had been injured by it”. (T55)

The evidence given by the plaintiff in this respect was in line with a statement (exhibit E) she had made to investigators as early as 20 October 1997. In that statement she said: “Adele Marsic had been standing nearby and asked me what had happened. I told her that the shelf collapsed on my hand and she said ‘Oh God, that’s not the first time that’s happened’. On Monday, 13 October 1997, I met in Hurstville Westfield Daryl (sic) Neil who is Central Branch Manager of the Commonwealth Bank. I told him about the circumstances of my accident. He said that this was not the first time that a shelf had fallen down. I was very distressed and told him that I was not being paid. He told me to just concentrate on getting my hand well.”

Both Ms Marsic and Mr Neil denied the words attributed to them by the plaintiff in this statement. On 17 November 1997 Mr Neil wrote the memorandum (exhibit C), to which I have already referred. Included in that memorandum was the following: “I was under the impression that there had been a similar and prior incident to the shelf collapse which led to this claim. In fact, there was a similar but subsequent incident involving our staff member Bebing Ashton. Neither Ms Ashton nor any other staff member was hurt and there are no claims outstanding. This second accident involved the same cupboard.”

A concerted attempt was made in cross-examination to show that Mr Neil’s belief that there had been a previous incident of the same kind afforded support for the plaintiff’s evidence of the conversation she asserted she had had with him in the fruit shop. It is unnecessary to resolve this because even if Mr Neil did make that remark to the plaintiff, the real issue is whether it accurately represented the facts. It was common ground that Mr Neil had at some time (prior to 17 November) believed that there had been a previous incident but that, as of, at the latest, that date, he no longer did. In these circumstances he may well have said something to the plaintiff of the kind represented by her. Mr Neil’s plain evidence was that his initial belief had been shown to be wrong, and what he believed to have been a previous incident of a similar kind was in fact a subsequent incident of a similar kind. The evidence concerning the comment the plaintiff attributed to Ms Marsic cannot be disposed of so easily. The plaintiff’s evidence was that Ms Marsic made the comment immediately after the incident. It is therefore not possible that if she did indeed say what was attributed to her she was confusing a subsequent, not prior, event. It is not necessary to resolve the dispute of fact concerning this alleged conversation. The comment, even if made, cannot establish that there had in fact been a similar prior incident. Whatever may or may not have been said by either Ms Marsic or Mr Neil, I am not satisfied that the evidence establishes that there had been a previous instance of failure of the shelving system. Such evidence, if accepted, would be relevant to the issue of foreseeability.

Senior counsel for the Bank, in opposition to a finding that the Bank had acted in breach of its duty of care to the plaintiff, relied upon evidence concerning the history of the use in the bank of cabinets of the kind in question. This, again, was largely the evidence of Mr Neil. Mr Neil said that units of the type had been in the Bank from about 1980. He had seen more than 100 such units. The absence of evidence of any previous failure of any unit gives some (but very limited) support to the Bank’s case on foreseeability. The support is limited because, as senior counsel for the Bank volunteered, if the plaintiff were able to prove that the system of work was unsafe, then the absence of evidence of previous accidents could not excuse the Bank’s breach of duty. It could not rely on good luck rather than on good management.

It is not, of course, necessary for the plaintiff, in order to prove that injury was reasonably foreseeable, to prove a previous similar incident. If she were successful in doing so, that would reinforce her case, but the absence of persuasive evidence to that effect does not destroy her case.

In my opinion it is obvious that a piece of furniture that is required to carry a weight greater than its capacity is likely to fail. It is a very short step to conclude that injury might be caused. I am satisfied that the injury to the plaintiff was reasonably foreseeable. preventability

That the injury was reasonably preventable is simply demonstrated by subsequent events. The metal runner strips on the cabinet were replaced by two horizontal bars fixed to the side wall of the cabinet. Mr Burn described this as inexpensive, saying it was probably more economical than the original system.

It is true that such a structure lacks the flexibility of the original, which enables shelf height to be adjusted. However, there was no evidence that this would have created any impediment to the proper and efficient discharge of tellers’ duties, or that it was for any reason desirable that the adjustability of the shelf height be retained.

Accordingly, I am satisfied that, without undue expense or difficulty, the shelving unit could have been rendered safe, and the injury prevented.

The plaintiff has therefore succeeded in establishing that her injury was caused by a breach of the Bank’s duty of care to her. She is entitled to an award of damages. DAMAGES plaintiff’s history

Although it will be necessary to return in more detail to the plaintiff’s history, it is convenient here to recount some of the salient features of her background.

The plaintiff was born on 7 June 1951. She was not quite 46 years of age at the time of her injury. She left school in 1967, without having sat for the Higher School Certificate, and began work in what was then the ES&A Bank, firstly as “a general dogsbody” (the plaintiff’s words), and then as a journal entry clerk. She did some work as a teller before leaving the Bank and taking up employment in a pharmacy. In 1970 she married; in mid 1971 she gave birth to a daughter (Leigh, now 31); and in September 1978 to a son (Adam, now 24). A second pregnancy had resulted in a miscarriage in 1974.

She was an active sportswoman, playing basketball, softball and tennis. Apart from breaks from work to accommodate her pregnancies, the plaintiff appears to have been in regular, if not constant, employment. On 24 December 1985 she was involved in a motor vehicle accident in respect of which she made a claim in the District Court for damages. This is one of the matters which will require greater attention in due course.

In about 1987 she was diagnosed as suffering from elevated blood pressure for which she was prescribed medication.

On 22 May 1987, while employed in a pharmacy, she suffered a further injury while attempting to assist in moving a small bar refrigerator. The plaintiff made another claim in the District Court for damages arising out of the injury she then suffered, and again, it will be necessary to return to the detail of this injury.

The plaintiff’s husband was a builder, and formed his own building company, which in 1987 went into liquidation. The plaintiff and her husband were both declared bankrupt.

The family thereafter lived for a time in a caravan and during that time (about May 1988) she slipped on a damp surface and suffered what appears to have been some minor injury. (The transcript records this as having occurred in 1998, but that is plainly erroneous.)

In 1990 she was diagnosed as suffering from late onset diabetes which was largely treated by strict dietary means.

In April 1990 the plaintiff returned to work in banks, this time in the Westpac Bank and in October of that year she became a permanent employee of Westpac, working in the Pitt Street, Sydney, branch. She found this employment satisfying and she demonstrated an aptitude for it. In November 1991 she again fell, suffering some minor injury to her right knee which did not prevent her from working. A similar event occurred on 12 December 1991 but on this occasion an arthroscopy was performed and she had some time off work as a result. In late 1992 as a result of worsening diabetic symptoms the plaintiff was prescribed medication for this condition. In April 1993 she was promoted in the Westpac Bank.

By May 1994 the plaintiff and her husband had purchased a farm property near Crookwell on which they ran a small number of sheep and cattle. For a time the plaintiff lived with her mother in Sydney and travelled to Crookwell at weekends but subsequently she was transferred to the Goulburn branch of Westpac. Later still she was transferred to the Crookwell branch as branch accountant.

In 1995 the plaintiff and her husband purchased a larger farm in the same district with an increased carrying capacity.

In April 1996 the plaintiff’s two claims in the District Court were listed for hearing on consecutive dates.

In particulars filed pursuant to Part 12 Rule 4A of the District Court Rules the plaintiff (through her then solicitors) asserted a lengthy list of disabilities, including disability of the right arm, pain and discomfort in the right shoulder, cramps on the right hand, and pain and paraesthesia of the right hand and fingers. In medical reports served in support of the claim, it was said that she required assistance with hair washing and brushing, dressing, and with housework, and that her capacity to drive was limited to short journeys. After a time, both claims were resolved by settlement.

The plaintiff’s blood pressure problems resurfaced in about 1996 and she was again given medication for hypertension. At about this time Westpac closed the Crookwell branch. The plaintiff was, at that time, experiencing some stress, possibly partly as a result of her diabetes and blood pressure. On 4 July 1996 she was medically retired from the Bank. She was assessed as totally and permanently disabled for work.

At that time she had not worked for some months. In applying for medical retirement the plaintiff claimed to be suffering from chronic pain from the neck, right shoulder and right arm, of lasting duration and resulting from the motor vehicle and refrigerator injuries (in respect of each of which her District Court claims were still pending). She sent two undated letters to the administrators of her superannuation plan, in each case stating that the letter was physically written by her daughter Leigh because she was unable to use her right arm. She told the administrators that she suffered chronic depression as a result of chronic pain. The plaintiff’s evidence was that she then set out to improve her health beginning with sleeping more than she had been and determining, largely by exercise, to lose weight. By late 1996 she considered that she had obtained benefits from her efforts, saying: “By September-October 1996, I felt like a totally different person.” (T17)

The plaintiff’s husband had been working in the building industry as well as managing the farm, but a downturn in that industry and in the availability of work adversely affected the family’s finances. It became desirable that the plaintiff return to work in order to provide additional income. It was in these circumstances that the plaintiff responded to the advertisement placed by Adecco. As I have mentioned above, the work offered to the plaintiff by Adecco was in Sydney branches of the Bank and the plaintiff resumed her previous practice of living with her parents in Sydney during the week and returning to her home in Crookwell for weekends. It was her hope, eventually, to secure employment with the Bank at a local branch. diagnosis

The proper assessment of the plaintiff’s damages has some very difficult questions. Prima facie, having regard to the nature of the incident, one would have expected the injury to be of only moderate (at most) severity and to have resolved in a relatively short time. However, the plaintiff claims that she is now severely disabled and unable to resume employment. A major controversy concerning the nature and extent of any disability from which the plaintiff now suffers was exposed. It was the Bank’s principal position that the plaintiff’s injury was a minor one, and that she grossly exaggerated her symptoms; alternatively, that the symptoms predated the incident with the coin tray. It is therefore necessary to outline at some length the competing positions of the parties.

By the consent of all parties, an order was made that: “The use to be made of the statements recorded in the medical reports tendered in these proceedings is limited pursuant to s136 of the Evidence Act 1995 so that those statements are evidence only of the fact that what is recorded was said and not evidence of the truth or fact of what is recorded.” The terminology of the order was formulated by the parties. I have endeavoured to adhere to this agreement. It means that, in some respects, the evidence of material matters is limited.

The plaintiff’s evidence was that, immediately after the injury, she attended a medical centre but that delays she encountered there were such that she did not wait, and that she sought to treat herself using two packets of frozen peas as an ice-pack. Later in the evening, the pain was so severe that her daughter rang the St George Hospital and was told that she should expect also to encounter lengthy delays at that hospital, and she did not attend. She spent a very uncomfortable night and attended her general practitioner, Dr Tony Nigro, who ordered x-rays. By this time, she said, her hand was “very puffy and swollen and bruised”. Dr Nigro prescribed an ointment and some pain relief medication. The following weekend she suffered severe pain and was still unable to use her hand. It remained very swollen. She again attended Dr Nigro, who gave her a certificate for a week off work. However, she was asked to attempt to work using only her left hand and she made this attempt but had “a terrible day” suffering pain, and using the pain relief medication. She found it very difficult to do her work and eventually went home. She saw Dr Nigro again, who again certified her as unfit for work. She has never returned to work since that time. Thereafter she continued to suffer from pain, and intermittent swelling, and marked temperature changes in the hand.

Late in September 1997 Dr Nigro referred the plaintiff to Dr Stuart Myers, an orthopaedic surgeon. She has remained a patient of Dr Myers since that time. Dr Myers in turn referred the plaintiff to a physiotherapist, Julia Wilde, and also prescribed medication, Prothiadin. The plaintiff found that of little assistance. She found it affected her alertness. By this time she was suffering emotionally and found herself frequently tearful. She noticed a strange sensation on the back of her hand, which she described in the following way: “It’s like the sensation when you say somebody walked over your grave. It is a creepy sensation on the back of my hand.” (T36) She first noticed this about six to eight weeks after the injury.

Early in 1998 the plaintiff was advised to use a TENS machine and she continues to do so and to gain some relief from it. From late 1997 she has used a splint and that also affords some relief by protecting her hand. In November 1997 Dr Nigro referred the plaintiff to Mr Sam Borenstein, a psychologist. She sees him twice a week and said that on the evenings of her consultation with him her sleep is much improved but that on the following nights her sleep is disturbed. Mr Borenstein uses hypnotherapy.

In May 1999 the plaintiff was referred initially to another physiotherapy centre, and then, by Dr Nigro, to Anita Beckett, a physiotherapist who has been treating the plaintiff with massage ever since. She has regular massage to, it seems, her hand (or hands), arm and shoulder.

The plaintiff painted a bleak picture of her life since August 1997 and of her current condition.

Her evidence was that, prior to her injury, she had been an active participant in the management of the farm, but that since the injury she has been unable to engage in many of these activities.

After a time the plaintiff noticed that she was having difficulties using her left hand. She suffered pain in the left thumb joint even on such simple and routine activities as teeth cleaning or hair brushing. She recounted one occasion of severe pain, which lasted several days, after using left-handed secateurs for gardening. The plaintiff described severe and disabling pain in both hands, but said that the right hand was worse by a margin of ninety per cent. She also continues to suffer from pain in her right knee. Ordinary domestic activities cause pain. For example, she experiences pain when hanging out laundry; her grip is weakened, causing her to drop and break household items; she finds it difficult to drive a motor vehicle but hopes that if she can purchase an automatic vehicle with power steering she may be able to resume driving. She has to use her left hand for teeth cleaning and hair brushing and applying makeup. She is dependent upon members of her family for some aspects of dressing and personal hygiene.

She had previously played tennis and engaged in needlework, tapestry and decoupage but these activities are now beyond her capacity. She is unable to do the household shopping alone. She detailed an impressive regime of prescription medication which she uses.

I have mentioned some of the medical practitioners who have been consulted by the plaintiff, but there are many more.

I turn now to consider the medical evidence.

On 5 August 1999, the plaintiff’s treating orthopaedic surgeon, Dr Myers, (a specialist hand and wrist surgeon) reported that, in the incident, the plaintiff had sustained “a crushing injury to her right hand”; he reported that she then developed: “A Type 1 complex regional pain syndrome (reflex sympathetic dystrophy).” It is not clear from the report at what point Dr Myers made this diagnosis, but it appears to have been at a relatively early stage.

In his report of 5 August 1999 Dr Myers recounted the plaintiff’s condition as follows: “On review on 1 December 1998 Ms Perkins had ongoing severe pain in her right hand associated with marked dysfunction. She described the pain as 7 out of 10 where 10 is the most severe pain imaginable. She also described pain in her left hand which had developed over the last two months as being 4 out of 10. There was no history of trauma to the left hand, although she was using her left hand for almost all activities in daily living because she was unable to use her right hand at all. The pain was constant and she required six to eight Panadeine Forte a day. She was having ongoing TENS treatment and physiotherapy. She also described diffuse tingling in the right hand particularly affecting the index and middle fingers. There was diffuse swelling in the hand and she was frequently waking from sleep. She had ongoing stiffness in the fingers and colour change. She was unable to work or do housework or shopping. She was unable to drive. She was unable to open jars, lift or carry objects in her right hand. The injury had significantly impacted on her family life and she had difficulty caring from (sic) herself and was unable to prepare meals around the house. She was unable to do most of her hobbies.”

It is reasonably apparent that the bulk of this description of the plaintiff’s condition was derived from information provided to Dr Myers by the plaintiff.

Dr Myers went on to outline the results of his examination. He did so in the following terms: “On examination of the left arm there was widespread tenderness extending from the interphalangeal point to the distal third of the forearm. There was a degree of guarding on the part of the patient and it was difficult to interpret exactly where the major source of pain was arising from. There was a positive basal thumb grind test and a weakly positive Finkelstein’s test initially. There was altered sensation in the superficial radial nerve distribution. The patient appeared particularly anxious and this exacerbated her perception of symptoms. After an injection of local anaesthetic and steroid into the left thumb carpometacarpal joint, there was improvement in symptoms in the left forearm by about 75%, suggesting that the major cause for these symptoms was basal thumb arthritis. When the wrist was re-examined with the anaesthetic in place, the Finkelstein’s test was then negative and there was only mild irritability in the metacarpophalangeal joint of the thumb.”

Dr Myers also said that on examination in 1 December 1998 he had observed “slight purplish discolouration in the right hand, reduced sensation, significant stiffness, particularly over the middle finger, and some restriction in movement of the index and middle fingers”.

Dr Myers attached to this report a two page document concerning the condition he diagnosed, “complex regional pain syndrome” (or “CRPS”), previously referred to as “reflex sympathetic dystrophy” (or “RSD”). The information contained in that document included four main features characteristic of the condition. These are severe pain, swelling, stiffness, skin discolouration or abnormal sweating. The document also contained the following: “The pain in a CRP is disproportionate to the injury or stimulus applied. It does not mean that it is not real. It may extend to a [the balance of the word is obscured] the whole arm or leg. The pain may be of a ‘burning’ quality. CAUSE : The cause is poorly understood, although Psychological, Physical and Environmental factors play a role in its development. … It is believed that there is a chemical change at the spinal cord level which ‘sensitises’ the pain recptors (sic). When the pain receptors are sensitised even light touch on the skin can become a painful stimulus. … With a CRP the +ve effect at the spinal cord level may be very prolonged or even permanent. This does not imply that you are dreaming up the pain. The pain is very real and there are definite chemical changes at the spinal cord level. A secondry (sic) effect of a CRP may result in abnormal firing of the sympathetic nerves. The sympathetic nerves are not normal nerves for feeling sensation or for causing muscles to contract. Rather, the sympathetic nervous system is used for controlling the heart rate, causing hairs to stand on end and causing sweating and colour changes in the skin. The sympathetic nerves are ‘automatic’ nerves over which we have little direct control. A CRP may be triggered by a variety of causes such as minor trauma or even surgery. It not infrequently follows trauma to nerves. It appears to occur more frequently in patients who are anxious or depressed although this is certainly not always the case. There may be a genetic predisposition to this condition which may run in families.”

On 23 June 2000 Dr Myers reported again, confirming his previous diagnosis. He wrote that it was extremely difficult to comment on the cause of her apparent disability, not having seen the plaintiff before the incident of August 1997. However, having reviewed some records of the plaintiff’s previous medical history (to which it will be necessary to come), Dr Myers wrote: “ … one could conclude that there was significant potential for ongoing chronic pain phenomena affecting the right upper limb. This may have been of an intermittent nature. There may have also been the potential for a personality type predisposed to chronic pain phenomena. From the history that I obtained, it would seem that the complex regional pain syndrome affecting the right hand was caused by the crushing injury at work as described.”

Dr Myers expressed the view that the plaintiff was not fit to return to work as a bank teller and that she would have great difficulty writing with her right hand, which would also preclude her working as a bank loan officer. While he considered it highly desirable for her to undertake some form of work to distract her from her chronic pain phenomena, he considered, in all the circumstances, that it was unrealistic that she would return to work. He also restated his observation that the plaintiff almost certainly had pre-existing osteoarthritis in the left thumb joint. He thought that the injury to her right hand hastened the deterioration in the left hand but may not have caused it.

In November 1998 the plaintiff was referred by her solicitors, for medico-legal purposes, to Dr G David Champion, a consultant physician in rheumatology and pain medicine at the St Vincent’s Clinic. Dr Champion examined the plaintiff on 30 November 1998, 12 October 1999 and 26 May 2000. In his first report, dated 14 January 1999, Dr Champion took issue with Dr Myers’ diagnosis of RSD. He wrote: “She has not had acute regional osteoporosis and I have not identified sympathetically maintained pain or sympathetic hyperactivity. However, at an early stage she may have had features of reflex sympathetic dystrophy. In any event, it is not necessary to achieve the criteria for that disorder to understand and accept this as an important post-injury pain disorder. The allodynia phenomena are impressive and are characteristic of post-injury reactions in susceptible people (the biological susceptibility to this disorder has not been adequately sorted out). It is not a psychologically caused disorder. Her adjustment disorder with depressed mood is clearly secondary to the injuries, chronic pain and related problems. This is a severe disorder and Mrs Perkins has been unfit for work from the time of the injury and it does not appear likely that she would be able to return to the workforce in the foreseeable future. Unfortunately, it is the kind of disorder that does not respond well to medical or other treatment nor will it resolve quickly or progressively in the natural history. Even if there is eventual slight and gradual improvement, she will retain a susceptibility to exacerbation on relatively minor provocation. … There is I believe permanent loss of efficient use of the right arm below the elbow of the order of 50%. The overuse disorder in the left upper limb is a secondary consequence to the right hand injury and there is probably permanent loss of efficient use in the left arm below the elbow of the order of 12.5%.” (“Allodynia” is said to be “pain due to a stimulus which does not normally provoke pain”.)

In a second report, dated 13 October 1999, Dr Champion wrote: “Mrs Perkins has a post-injury disorder of the right hand with chronic pain associated with impressive cutaneous and deep allodynia, paucity of motor function (antalgic and dystonic), and features generally which are consistent with complex regional pain syndrome type 1 (reflex sympathetic dystrophy). Generally, I prefer to use that term when there is also evidence of acute regional osteoporosis, but I have not been aware of any investigations to that effect. In any event, the fine detail of diagnostic categorisation is not critical. What is important is that this is a devastatingly severe chronic pain reaction mostly neuro-biological, but with the inevitable psychological accompaniments. In Mrs Perkins’ case she seems to be generally a coping type of person and this disorder is emphatically not psychogenically driven. There is also pain in the left hand, particularly the first carpometacarpal joint, a secondary consequence of her over reliance on the left hand, neuro-biological changes as a result of the right hand injury, and a background of osteoarthritis.”

Dr Champion considered the plaintiff to be still unfit for work and unlikely to be able in the foreseeable future to return to work, and was pessimistic about the prospect of successful treatment. On 30 May 2000 Dr Champion provided an updated report, in which he adhered to the opinions he had previously expressed. By the time of his third report, on 30 May 2000, Dr Champion had accepted the RSD diagnosis.

Dr Steven Faux, a rehabilitation physician to whom the plaintiff was referred in October 1999, also diagnosed CRPS Type 1.

Dr John Yeo, a specialist orthopaedic surgeon, examined the plaintiff for medico-legal purposes. In his first report, dated 23 December 1999, he diagnosed “persistent pain syndrome, with elements of the problem suggesting reflex sympathetic dystrophy”.

These assessments of the plaintiff’s condition stand in marked contrast to those provided on behalf of the Bank. Dr Ernest Somerville, a consultant neurologist, examined the plaintiff at the request of the Bank’s solicitors on 30 May 2000 and again on 2 November 2001. He recorded the plaintiff’s complaints in terms similar to those of Drs Myers and Champion. In recounting the results of his physical examination he described the plaintiff as “cheerful” while delivering her history, “but not during the examination”. He observed no asymmetry or abnormality of colour, temperature or sweating in either hand, and noted that the plaintiff frequently hyperventilated during the examination. He wrote that she: “appeared to be in agony when the lightest possible touch was applied to the dorsum of the right hand or when it was tested with pin pricks. … All movements of the fingers of the right hand appeared to produce agony.”

In short, the description of the result of his examination drew a clear contrast between the plaintiff’s history and complaints and Dr Somerville’s own examination. He went on to express his opinion in the following terms: “I am unable to explain this lady’s symptoms on any plausible neurological basis. She suffered an injury which would be expected to produce at most a bruise of the hand but has been left with intractable agonising pain. There is nothing to suggest any peripheral nerve injury. There are no objective abnormalities on neurological examination. The condition known as reflex sympathetic dystrophy and various newer labels, when not associated with a peripheral nerve lesion, is not universally accepted by neurologists as an organic neurological disorder. There are no objective findings and no satisfactory explanation for the symptoms that Mrs Perkins describes. I am not convinced that there is any neurological disorder.”

In his second report Dr Somerville gave an account of the plaintiff’s complaints similar to that given in the first report. He concluded the second report with the following: “Her complaints are similar to those reported at the previous visit. Examination findings are similar to those of the previous visit, with a complete lack of any objective neurological findings. There have however been some changes in the examination. Where a sensation on the previous occasion over the palma surface of the hand was normal, pin prick sensation today was markedly increased over the palma surface of the right middle finger. I am unable to explain how flexing the elbow against resistance, with my hand holding the forearm, proximal to the wrist, produced agonising pain in the hand. Once again, I am unable to explain Mrs Perkins’ symptoms on any plausible neurological basis. I am not convinced that there is any neurological disorder.”

Dr Richard Sekel, a consultant in occupational medicine, also examined the plaintiff at the request of the Bank’s solicitors, on two occasions, 5 June 2000 and 2 April 2001. He provided reports in relation to each of these examinations, and a third report, dated 6 June 2001, reviewing comprehensive documentation that had been provided to him. His observations and opinion were similar to that of Dr Somerville. Of his physical examination of the right hand Dr Sekel wrote: (5 June 2000) “There was no visible or palpable abnormality of the right hand, but it was very difficult to examine the hand as she complained of extreme tenderness to even fingertip touch over the right middle finger, effectively refusing to permit me to touch it. Briefly touched, the right middle finger was equally warm to the remaining fingers of both the right and the left hands, circulation, sweat and colour were also normal and equal in all areas of both hands. Skin texture appeared normal, and there was no wasting of either hand, the circumferences being equal at 19 cm. She refused absolutely to mobilise any joint of the fingers of the right hand. Sensation of light touch and pin prick were difficult to assess because of her extreme reactions, but appeared to be normal.”

Dr Sekel was of the view that there would have been no “significant ongoing physical disability” from a date four to six weeks after the injury, and that the only treatment that would have been required after the initial few days was simple analgesia for a maximum of six weeks.

Dr Sekel rejected the diagnosis of CRPS or RSD. In his second report he expressed a similar conclusion.

It is plain from his report (as is the case, perhaps to a lesser degree, with respect to the reports of Dr Somerville), that Dr Sekel disbelieved the plaintiff and considered her to be, at worst, fabricating her symptoms, or, at the very least, motivated by extraneous personal and emotional issues to use the incident of August 1997 for her own personal gain.

Dr Sekel also stated that two treating hand surgeons (Drs Isaacs and Connelly) had recommended against treatment for CRPS. However, while there is evidence that the plaintiff was treated by each of these practitioners, there is no direct evidence to support the assertion made by Dr Sekel, and certainly none that would permit any inferences to be drawn from that fact, assuming it to be the fact.

Dr Sekel made the observation that the abnormalities described in the reports of the plaintiff’s treating doctors (presumably referring, inter alia , to Dr Myers) are based on subjective statements and subjective movements controlled by the plaintiff, rather than being based on abnormal objective signs. He suggested that the absence of significantly abnormal objective signs could explain the lack of agreement between the doctors on any confirmed diagnosis. Precisely what Dr Sekel means by this latter observation is not clear, as he does not identify the doctors among whom agreement could not be found.

Under a heading “Other Factors Affecting Work” Dr Sekel drew attention to a series of matters which he considered may be relevant “in relation to Mrs Perkins’ negative attitude towards return to work”. These included the consequences (or asserted consequences) of the 1985 motor vehicle accident; other medical conditions suffered by the plaintiff, including diabetes, “stress”, neck pain and right shoulder pain, which, according to Dr Sekel, had caused the plaintiff’s medical retirement from her previous employment in August 1995; the plaintiff’s residence at Crookwell, several hours’ drive from Sydney, and her economic need to work in Sydney and return home only for weekends; what Dr Sekel described as the plaintiff’s continued performance of her duties on the farm, including sheep drenching, woolshed sweeping, serving meals to shearers, using a four-wheel-drive motor bike to round up sheep, tractor driving, all in addition to performance of normal housework; what Dr Sekel described as the requirement of her employment with the Bank that the plaintiff work for eight or more hours each day, five days per week as against her stated preference for working six hours per day; and the short period after the commencement of her employment in which the plaintiff was injured. (It may here be observed that a number of these assertions are unsupported by direct evidence. To take one example, there was no evidence that the plaintiff preferred to work for six hours each day.) In his second report, Dr Sekel wrote: “Following intensive questioning, Mrs Perkins eventually admitted today that she had had symptoms in a similar area of her right hand for an extensive period (approximately ten years) between 1985 and approximately 1995, which she related to the two injuries of 1985 and 1987 respectively, that were described in my earlier report of 5/6/00. The right hand symptoms on that occasion included tingling in the right fourth and fifth fingers.”

Dr Sekel went on to note what he described as “a number of inconsistencies in Mrs Perkins’ presentation”. He illustrated these by reference to the plaintiff’s refusal to allow him to touch or medically examine her hands, while attending a masseur for massage of her hands and arms three times per week and also attending a physiotherapist regularly for varying therapies, including massage. He also contrasted her assertion that she was “always dropping items approximately 20 times per day” with an “admission” (Dr Sekel’s terminology) that this was always from her left hand. As an asserted further inconsistency, Dr Sekel referred to a statement by the plaintiff that the symptoms in her left hand were somehow related to the lack of use of her right hand, but observed that she then “admitted” (the doctor’s choice of word again) that she also rarely uses the left hand because of her general inactivity.

Dr Sekel’s third report was directed to the plaintiff’s claim for equipment and home modifications and is not presently material. It will be necessary to deal with that issue at a later point.

It will readily be seen from the above that the medical opinion is dramatically and diametrically opposed. Each of the doctors mentioned gave oral evidence and was cross-examined.

In oral evidence Dr Champion identified the condition as: “a post injury disorder, a complex regional pain syndrome with sufficient features for her to fulfil the criteria …” (T 360)

Both Dr Somerville and Dr Sekel based their opinions significantly on what they stated to be the absence of any objective neurological signs consistent with the condition of RSD.

In his evidence Dr Sekel essentially adhered to the views he had expressed in his reports.

Dr Myers did not accept that there were no objective signs. He referred to “purplish discolouration” which he said had “a very characteristic appearance” and was associated with RSD; he also referred to “palmafascial thickening”, also “extremely characteristic” of RSD. (He later explained the latter as being the thickening of the tissues in the palm.)

Dr Myers said that on his first assessment he had observed palmafascitis and purplish discolouration and concluded that that was “certainly enough” to “start thinking” of a diagnosis of RSD. He considered the observation of palmafascitis to be objective and not subjective.

Dr Myers also made it plain that, in addition to these objective signs, he gave weight to the plaintiff’s own description of her symptoms and said that, as a matter of clinical judgment, he had formed the view that she was genuine.

In my opinion the views of Dr Myers, as the plaintiff’s longstanding treating orthopaedic surgeon, deserve to be given considerable weight.

Dr Myers was of the view that personality type may be a predisposing factor in exposing an individual to the condition but this, of course, does not affect the reality of its existence. It has other implications, with which I will deal later.

Although Dr Champion was more cautious about the terminology used, he agreed that a disorder of the kind in question can result from relatively minor trauma and (perhaps, in this respect, going further than Dr Myers) thought that there must be biological or psychosocial predisposition in order for the condition to be triggered.

Further, Dr Champion accepted that some of the symptoms could be simulated, but thought that his own examination of the plaintiff contraindicated such a conclusion in this case. In this respect he referred to his own observation of increased skin temperature, the overall pattern and nature of the cutaneous and deep allodynia phenomena and the nature of the motor disturbance such as involuntary extension of the middle finger.

Further light may be cast upon this issue (that is, the proper diagnosis of the plaintiff’s condition) by examination of the psychological and psychiatric evidence. The plaintiff was referred to a clinical psychologist, Mr Borenstein, on 18 November 1997. She continues to see him twice weekly, when he administers hypnotherapy. Mr Borenstein provided four reports, dated, respectively, 17 September 1998, 11 August 1999, 23 December 1999 and 11 September 2001. At the time of his first report he had been told of Dr Myers’ diagnosis of RSD. Mr Borenstein formed the opinion that the plaintiff suffered adjustment disorder with depressed mood. He said that she was feeling “quite despairing with regards to her future” and feels that she has become a burden to her family. He accepted that she suffered “acute pain”.

His later reports were either restatements of the first, or directed to issues not currently the subject of consideration. Late in 1999 the plaintiff’s solicitors referred her to Dr Peter Morse, a consultant psychiatrist, for medico-legal purposes. Dr Morse’s opinion was that the plaintiff was suffering: “Quite severe, extreme physical symptoms and quite marked disability from a crush injury …” He wrote: “There is no doubt that due to a combination of events, the initial experience of the injury, the ongoing physical symptoms and disability, the reaction in the workplace, the effect it has had on her family and a feeling of dependence and depression as described above and discussed further below, there are psychological and emotional factors playing a part in the ongoing process of her pain experience. This not to say that psychological or emotional factors are the cause of her pain but certainly they are making it worse and causing quite marked distress augmenting the pain. She is certainly trying to make an effort to appear brighter and better than, I believe, she actually feels and as she said, trying to have a new attitude towards the pain. I don’t believe there is any evidence of malingering or overemphasis or exaggeration of her state.”

Dr Morse described the plaintiff as suffering from “major depression” and recommended that she continue treatment with Mr Borenstein. In a subsequent report (13 July 2000) Dr Morse agreed with Mr Borenstein’s diagnosis of adjustment disorder with depressed mood. He again stated that he did not believe that the anxiety and depression the plaintiff was suffering was the cause of the pain and did not believe there was any evidence of malingering or overemphasis or exaggeration of her state. Dr Morse added: “Given the severely disabled nature of her condition she certainly wouldn’t choose this way of living.”

The plaintiff was psychiatrically examined on behalf of the Bank by Dr James Maguire on 1 February 2000. Dr Maguire reported on that examination on the same day. On 31 March 2000 he provided a further, comprehensive report reviewing a large number of reports which had been provided to him and which he identified. A good number, but not all, of these were in evidence in the present proceedings.

Following his examination of the plaintiff on 1 February 2000, Dr Maguire recounted the history given to him by the plaintiff. He noted Dr Myers’ diagnosis of RSD and stated that the symptom pattern outlined by the plaintiff was consistent with that diagnosis, based on Dr Maguire’s experience of such conditions over the years. He agreed with Mr Borenstein’s diagnosis of adjustment disorder with depressed mood.

While Dr Maguire accepted that the plaintiff’s emotional disorder reduced her quality of life, he did not agree that it would have interfered with her ability to work. He considered that her incapacity in that area was purely related to physical problems. He considered that the treatment given by Mr Borenstein should long since have come to a stop.

Having been provided with a large number of reports which he identified in his second report, Dr Maguire made a number of comments for the benefit of the Bank’s solicitors. He noted that on examination in February 2000 the plaintiff had told him that prior to the August 1997 injury she had been physically well, was working, was managing the household, was assisting with running the farm, and cooking for the shearers. Dr Maguire then observed, however, that: “ …twelve months before the work related injury on 8.8.97 Mrs Perkins was retired on the grounds of ‘total and permanent disablement’ due to a range of symptoms which are identical to those which she now attributes to the injury in 1997. These symptoms included a diagnosis of regional pain syndrome associated with pain, swelling, sweating and colour changes in her right hand. Furthermore these symptoms had been present almost continually for the previous nine years and according to the medical evidence submitted in support of her application for retirement the condition ‘has not improved with treatment … not expected to make significant improvement’ .”

Dr Maguire also noted that the plaintiff had told him that she had not suffered any nervous or emotional problems prior to the injury in 1997 but said that Dr Connelley had been told in July 1995: “… she often suffers depression and sleeplessness as a result of these symptoms … she admitted having been addicted to Percodan in the early days after her injury.”

Dr Maguire also referred to a report of a Dr Krishnan of October 1995 to the effect that the plaintiff had been suffering from chronic depression as a result of chronic pain but that the depression may improve with time and management.

Dr Maguire stated his view that the plaintiff had to be considered “an unreliable historian” given the disparities between the history she had given him (presumably a reference to the plaintiff’s claimed recovery of health by 1997) and the information contained in the reports to which he referred.

Dr Maguire then wrote: “Given that the physical complaints appear identical to those recorded only twelve months before the injury it would be my impression that the injury may have led to a temporary increase in physical discomfort but would not have influenced the long term prognosis given the high probability that her complaints had been in place for ten years at the time of the accident. As noted, it is a matter for the relevant specialist to discuss in what way and to what degree the 1997 injury has influenced the underlying pathology. Mrs Perkins was already depressed because of her pain and inability to participate in various domestic and farm related activities before the work injury in 1997 and one would have expected this depression to have continued after that event. Therefore, while there may have been a temporary increase in the intensity of depressive feeling, one would have to conclude that Mrs Perkins was already ‘reactively’ depressed and suffering from an ‘adjustment disorder with depressed mood’ prior to 1997.”

The final paragraph of this extract can be given little weight. Dr Maguire (as he himself implicitly acknowledges in the second paragraph of the extract) trespasses upon the specialty of other practitioners. Moreover, it is no correct to say that the current complaints are identical to the earlier ones. There are, it is true, similarities, but they are not identical.

The defence attack on the plaintiff’s case in respect of the diagnosis of RSD took place over a number of fronts not all of which could easily be reconciled with the others. For example, in its reliance on the reports and evidence of Drs Somerville and Sekel, the Bank seemed at times to adopt the position that the plaintiff did not suffer from RSD, or CRPS, and that the symptoms she described were fabricated, she having learned them from the handout given by Dr Myers. However, one aspect of the cross-examination of the medical practitioners took the approach of analysing the medical reports accumulated for the purpose of the two District Court claims and the plaintiff’s particularisation of those claims (arising out of the 1985 motor vehicle accident and the 1997 refrigerator accident, settled in 1996) and suggesting that, at that time – that is, before the coin tray injury – the plaintiff had already contracted that condition: (see, for example, cross-examination of Dr Champion at T350 and following, and of Dr Meyers at T389 and following).

A major focus of attention was the disabilities the plaintiff had claimed, in 1996, to be suffering as a result of the two previous injuries. It was suggested, again in a bi-pronged attack, either that the plaintiff had then exaggerated her condition, or, alternatively, that it was unlikely, if her injury was as she then claimed, that she had recovered to the extent that she claimed by early 1997: see, for example, evidence in chief given by Dr Somerville commencing at T403. All the medical practitioners, the plaintiff herself and her husband and daughter were extensively cross-examined on this subject. The primary position adopted on behalf of the Bank, as became clear in oral submissions, was that the plaintiff had greatly exaggerated her condition in 1996, and that this significantly affects the assessment of her credibility in the present proceedings. In support of one or more of its propositions, a great deal of material concerning the plaintiff’s previous District Court claims was entered into evidence. This included a copy of the statement of claim in the refrigerator case and documents particularising the plaintiff’s claim for damages in relation to the motor vehicle accident, and medical reports collected for the purpose of pursuing that and the refrigerator claim. Also included were the terms of settlement by which the matters were resolved.

Pursuant to Part 12 Rule 4A of the District Court Rules , the plaintiff’s then solicitor filed particulars of alleged injuries and disability on 19 May 1992, 20 January 1995 and 23 May 1995. It was by reference to these, and the supporting medical reports, that the Bank sought to establish either that at that time the plaintiff was exaggerating her condition, or alternatively that her condition 1997 was such that the incident with the coin tray could hardly be said to have exacerbated it. I will refer only to the final particularisation of the plaintiff’s District Court claim, dated 23 May 1995. The disabilities particularised numbered 33 and included disabilities resulting from alleged injury to the cervical, thoracic and/or lumbar spine. Of particular significance for the present purposes, however, are those particulars which assert injury to and restriction of use of the plaintiff’s right arm. On her behalf it was asserted that she had pain, discomfort and restriction of movement of the right arm, with consequent diminution of her ability to engage in activities such as letter writing and an inability to raise her arms above shoulder height. It was also asserted that the plaintiff suffered from cramps in the right hand and pain and discomfort in the hand and fingers.

In a letter dated 2 August 1995 the plaintiff’s solicitors advised that occasionally the plaintiff had to be lifted out of bed in the morning, and occasionally required assistance in the removal of her nightgown. They asserted that the plaintiff was unable to shampoo her own hair and this was done by her daughter; that she required assistance in dressing and undressing; and that she was unable to perform a number of routine domestic tasks.

For the purposes of considering this aspect of the matter, the earlier of these medical reports may be put to one side. However, the Bank pointed to a number of medico-legal reports written in 1995 and 1996 which are of considerable relevance. For example, on 7 June 1995, Dr Jerome Goldberg, an orthopaedic surgeon who had seen the plaintiff on 1 November 1994, wrote: “The patient complains of constant and severe pain radiating from her neck from the whole of her right, dominant upper limbs. Her symptoms are worse with movements of the arm and neck and often wake her at night. She complains of loss of power and motion in the whole of the right upper limb. She also complains of paraesthesia in the fingers of her right hand. … Her present disability is moderate. Her symptoms interfere with the activities of daily living and her work practices. The patient’s condition, according to Mrs Perkins, is deteriorating.”

Under the heading “Prognosis” Dr Goldberg wrote: “… her prognosis is poor. Her symptoms are likely to continue for the rest of her life and all that could be recommended to the patient would be that she have a referral to a pain clinic. … When I reviewed Mrs Perkins she had a 20% permanent loss of efficient use of her cervical spine or neck and 25% permanent loss of efficient use of her right upper limb at or above the elbow.”

In a report dated 20 July 1995, Dr T.J. Connelley, a neurosurgeon, wrote: “There is pain in relation to the right shoulder and right upper arm with pins and needles extending down to the ring and little fingers of the right hand. There is a general weakness of the right upper limb. … Before I could examine Mrs Perkins, it was necessary for Mr Perkins to assist his wife to remove her outer clothing. This produced some hyperventilation in the patient. … There is a generalised weakness of the right upper limb without any evidence of muscle wasting or reflex disturbance. The response to pin prick seemed to be adequate in both upper limbs.”

This was a report prepared at the request of the defendant in that case, and Dr Connelley was of the view that there was no organic explanation for the plaintiff’s claimed symptoms. He suggested psychiatric assessment. Dr Kim Edwards, a surgeon, also reported at the request of the defendant’s solicitors. This report was dated 4 August 1995. Dr Edwards wrote: “She complains of pain on the right side of her neck and this goes towards the occiput. She said she has ‘spasm and pain’ which she indicates is present in the right upper trapezius region, and also on the anterior aspect of her right shoulder. She has pain on the posterior aspect of her right arm to the elbow, pain affecting the ulnar two fingers and pins and needles affecting the ulnar two fingers. She said her forearm goes to sleep.”

Dr Edwards did not accept that the symptoms then described by the plaintiff were attributable to the motor vehicle accident of December 1985 and did not believe that she had any genuine physical disability relating to that accident. He considered her long-term prognosis good and that she was fit for her usual work duties which were then in a bank.

Dr A.W. Steinbeck, a consultant physician in general medicine, endocrinology and diabetes, reported to the solicitors acting for the defendant in the plaintiff’s case concerning the refrigerator injury on 15 March 1996. Dr Steinbeck reported that, prior to that accident, the plaintiff had to a great extent recovered from the effects of the motor vehicle accident but that following the refrigerator injury she experienced a range of symptoms which had persisted. As at the date of report Dr Steinbeck recorded: “She described the feeling now as if there is a weight in the arm and does not have the strength to move her arm. She had a need to hold her arm at the elbow because of his feeling of weight. She had difficulty using her arm. … In eating she uses a splayd or similar in her left hand, her husband cutting up her food for her. Her husband had insisted she use her right arm or lose the use of it so that he rigged up pulleys for her. She exercises three days a week but stops when the arm aches. Her right arm becomes cold when she is asleep which her husband has noted. … If she pushes on the right arm, she develops arm pain. Any sudden movement leads to stabbing pain around the back, elbow and into the neck when clenching her muscles. She has pain in the upper arm and into the shoulder that she believes is due to not using her muscles enough. Her hand may swell and on moving become pale and the arm cold. She had not slept well since July 1995. … She depends on her daughter to do her hair. She has not done cooking since July 1995 and the family has organised to provide meals … She does no housework. She needs help with dressing and cannot do up a brassiere or pull on a sports one, nor pull up trousers with an elastic waist.”

Dr Steinbeck considered the most likely diagnosis to be “regional myofascial strain”. Dr Steinbeck expressed the view that the plaintiff had adopted an invalid role in her life and was strengthened in this by the family support she received.

Dr Connelley reported again on 29 March 1996 and wrote: “I found it very difficult to examine the right upper limb because any attempt at movement or even assessment of strength caused Mrs Perkins so much pain. Certainly there was no evidence of gross wasting and as far as I can assess the reflexes, this was difficult, they are within normal limits. … I believe Mrs Perkins’ disabilities have now reached a stage where her concern and anxiety is the major problem and further psychiatric assessment may help her in this regard and enable her to regain confidence in the use of the right upper limb. I certainly cannot find any organic reason why she is so disabled, as indicated by Mrs Perkins today.”

I have not attempted to refer to all of the medical reports accumulated in relation to the plaintiff’s previous claims. What a reading of them demonstrates is that the medical issues which emerged in relation to those claims bear considerable similarity to those which emerged in relation to the present claim. In short, the plaintiff asserted a vast range of debilitating symptoms, none of which could adequately be explained by the severity of the trauma that she suffered, and in relation to which many medical practitioners (notably those retained to advise the defendants) considered her to be fabricating or exaggerating.

There is another circumstance that should be mentioned in relation to the plaintiff’s condition up to early 1996. Notwithstanding the constellation of symptoms that she alleged in pursuing those claims, the plaintiff appears to have continued working for most of that period. The plaintiff’s own evidence about her work history over this period was far from complete. She said that in late October 1994, following some conflict with a staff member, she was under some stress at work, and had some time off work. She said that she returned to work “after a short time”.

Medical evidence at the time suggests a rather different story. In a report dated 15 March 1996, Dr Steinbeck noted that: “She has been on Health Benefits since the end of October because of her illness.” In his report of 29 March 1996 Dr Connelly said that she had not returned to work since July 1995. However, having regard to the agreement of the parties concerning the use that may be made of statements recorded in medical reports (and these are in that category, though not directed to the 1997 injury) these statements must be put one side.

The terms of settlement bringing to an end the plaintiff’s claim in relation to the 1995 motor vehicle accident were filed on 24 April 1996. There was evidence also that the plaintiff’s claim in relation to the refrigerator accident was settled at the same time. As mentioned above, the plaintiff was subsequently medically retired from her employment with Westpac. This occurred on 4 July 1996.

A combination of the evidence concerning the disabilities the plaintiff asserted in relation to the District Court claims, and her medical retirement as totally and permanently disabled for work provokes a conclusion that, as at the middle of 1996, she was indeed in a parlous medical condition, whether caused by physical or psychological circumstances. If it were found that that condition continued through 1997, that would have an obvious impact upon the result of the plaintiff’s present claim. Alternatively, the claims made as to her condition in April and July 1996, and her later capacity to return to work, prompt questions about her credibility in relation to her pre-1997 condition. In her evidence in chief the plaintiff explained what might otherwise appear to be a rather dramatic and sudden improvement in her condition. She said that on her retirement she set herself a project of, in effect, a return to health. She began by having substantially more sleep than she had been used to and exercising for weight loss. She said that by September or October of 1996 she felt “like a totally different person”. She kept up the regime and by early 1997 her blood pressure had subsided and her diabetes was greatly improved. She had lost 16 kilograms in weight. By the time she saw the Adecco advertisement in February 1997 she felt that she was fit to return to work.

The plaintiff was asked on a number of occasions during cross-examination about the apparent dramatic improvement in her condition following resolution of the District Court proceedings. On one occasion she said that she did not start to feel better until August or September of 1996 and added: “… and it was purely a psychological outlet I had to take on how I felt and what had happened and what was happening in my life.”

Initially, she had begun attending a pain clinic in Canberra where she learned breathing techniques and thought transference. She was also receiving counselling at her church.

She said that resolution of her problems “didn’t just go away” but resulted from “a lot of hard work and personal looking within yourself for how your life was and what you were responsible for …” She added that a lot of it had to do with her becoming a Christian (T75). A little later, when asked how it came about that within a short time she was able to involve herself a great deal more in the work of the farm she said that this was the result of determination and a change in her mental attitude as well as “a lot of help and love from my family”.

There is to be found in the evidence a good deal of material advanced on behalf of the Bank in support of the proposition that the plaintiff was, in 1996 and before, not nearly as seriously injured as she would then have had it believed, and that she was then and is now frankly exaggerating her condition. In order to demonstrate this the Bank produced a number of video recordings which came into existence during the preparation of the District Court matters at which time the plaintiff was under surveillance. I have repeatedly and carefully watched two of these, the two latest, filmed on 9 and 10 March 1996 at the plaintiff’s home and on 28 March 1996, in Sydney, after the plaintiff had attended a medico-legal appointment. The first of these was of little value. Its quality is not good. The plaintiff can be seen in the garden of her home, with her husband and children. She does little. Her husband and son, in particular, are engaged in vigorous gardening. The most the plaintiff can be seen to do is pick up a garden pot, and, using her left hand, pull out some weeds.

The second video is lengthier. It shows the plaintiff, with her husband, leaving the rooms of the doctor she had visited. They are later seen in the car park of commercial premises, in a retail store and, later again, eating lunch at an outdoor location. The impression I received on close examination was that the plaintiff was consistently guarding her right arm. She used her left hand, predominantly, for eating her meal, although, as she conceded, she had used her right hand at times. On one occasion, it appeared to me that her husband turned on a tap to enable her to wash her hands. The videos do not assist the Bank’s case.

The plaintiff was extensively cross-examined on matters relevant to her credit. For example, her attention was drawn to the particularisation of her claim in the District Court and she was shown the video films. It was suggested to her that the video film demonstrated that she had exaggerated her injuries and symptoms in her claim in the District Court and that they showed that she was, in fact, not disabled as she alleged.

Secondly, it was suggested that, in providing information about her history and symptoms to the various medical practitioners to whom she was referred, either by the Bank or her own lawyers, for medico-legal purposes, she had withheld relevant information about her previous injuries. I did not find this illuminating. What a patient tells a medical practitioner depends significantly upon what the patient is asked. The obtaining of information, generally, is dependant upon the information gathering techniques of the medical practitioners. However, the plaintiff did agree that, when she was seeing the medical practitioners to whom she was referred by the solicitors for the defendant in relation to the refrigerator accident, she had not disclosed her motor vehicle accident. She said that this was because she had been given what she described as “exceptionally bad” legal advice.

The plaintiff was reluctant to disclose the source of the legal advice and ultimately was not pressed to do so. I find it difficult to accept that the plaintiff was advised, as she intimated, not to make full disclosure of the motor vehicle accident if asked and her reluctance to identify the source of the advice strengthens my scepticism about her evidence in this respect. I cannot, however, find that the plaintiff is not telling the truth on this issue.

A further matter on which her credit was attacked concerned her application to Adecco for employment. The plaintiff had completed a form which required the provision of certain information which included a history of previous injury. The plaintiff had, untruthfully, indicated that she had never had any arm, hand or wrist injury, back pain or strain, or leg injury. She said that this was because: “I wanted the job …”

She had also indicated that she had never had a work related injury, and this was also false.

While I do not condone the giving of misleading answers in an employment application, I think the plaintiff’s untruthfulness on this occasion has little bearing upon the assessment of her credibility in the evidence she gave in this court. It is not difficult to understand that the desire for employment, and the fear that complete information will jeopardise that employment, might lead an eager applicant to deceive.

The plaintiff was also cross-examined about an application she and her husband had made to Westpac for a loan in which they had given misleading information. This cross-examination, in the end, went nowhere. I am not satisfied that the incident reflects adversely upon the plaintiff’s credit.

Finally, it was established through the cross-examination of the plaintiff that, in 1988, she had been found guilty of an offence of stealing from a retail store. The charge was found proven but no conviction was recorded.

Obviously, this event has some bearing on an assessment of the plaintiff’s general honesty, but without more information, it does not cast very much light on the assessment of her credibility in her evidence in these proceedings.

As I have earlier indicated, my assessment of the reliability of the plaintiff’s evidence is made on the basis of the objective evidence and does not depend upon subjective matters. I bear in mind, having regard to all the matters I have mentioned, that some question marks hang over the determination of the plaintiff’s credibility and must be taken into account in the assessment of factual disputes that depend largely or solely upon the plaintiff’s own evidence.

The plaintiff’s husband gave evidence broadly consistent with the evidence she had given. He said that, following the 1985 motor vehicle accident, he had taken on the burden of a good deal of the house work because she was simply unable to do so. He said that the pharmacy accident (the refrigerator injury) had aggravated the pre-existing injury. However, he also said that after she started working with Adecco, at a time when she was living in Sydney but returning to the farm for weekends, the plaintiff became more active both inside and outside the house. He said that during that period she participated in the work of the farm, helping with sheep mustering and with some of the tidying up required during shearing and that she cooked the shearers’ lunches. The plaintiff’s husband said that he continued to do some of the heavier domestic work, such as cleaning the bath. He also confirmed the plaintiff’s description of her condition since the August 1997 incident, saying that her ability to do domestic chores was “virtually non-existent”. He added that the plaintiff continually breaks household items.

Evidence to the same effect was given by the plaintiff’s daughter, Ms Leigh Perkins. She said that following the motor vehicle accident the plaintiff had had a limited range of movement in her neck and that she complained of pain in her neck and shoulders. Although she returned to work the signs of restriction and the complaints continued. Following the refrigerator incident Ms Perkins noticed that the plaintiff’s movement was even more restricted and that she complained of more severe pain. On this occasion she had some time off work. She said that her mother had limited movement above shoulder height, had difficulty driving, difficulty hanging laundry on the clothes line and called upon the family for assistance with housework and even with her own personal needs such as hair washing. She said that after the resolution of the District Court proceedings in April 1996 her mother began seriously exercising and dieting. She had begun to attend a pain clinic in Canberra. As a result of these efforts she lost weight and became more active and more self assured. She also began contributing to the work of the farm.

Since the August 1997 injury the plaintiff was unable to pick up items and on occasions she observed colour changes in the plaintiff’s hand.

Senior counsel for the Bank drew attention to what he described as discrepancies in the evidence of the plaintiff and of her husband and daughter. These are, in my view, of little consequence. The accounts given by all three witnesses were largely consistent.

A Mr Glenn Laverty, a shearer, gave brief evidence. He said that he had been engaged in shearing at the plaintiff’s property in November 1996 for about three days. He essentially confirmed the evidence of the plaintiff’s husband that she had swept the floor and made meals for the shearing team.

The material to which I have adverted plainly demonstrates that there is a solid basis for the suspicions raised on behalf of the Bank concerning the genuineness of the plaintiff’s complaints. Put starkly the picture is this: that on Christmas Eve 1985 the plaintiff was injured in a motor vehicle accident which, by ordinary standards, could have been expected to leave her with a short term injury which would have resolved within a few months. (There was, in fact, no evidence in the present proceedings about the nature or severity of the collision, but the premise underlying the extensive cross-examination of the plaintiff and her medical witnesses was to this effect and was not disputed.) Her symptoms continued and she was again injured, in the refrigerator accident in 1987, again in circumstances which would not ordinarily lead to long term effects. (The comment in parentheses about the motor vehicle accident here has equal application.) Notwithstanding this, nine years after the motor vehicle accident and seven years after the refrigerator accident, the plaintiff was claiming, and producing medical evidence to establish, what could only be described as a disproportionate response to either or both of the traumas she had suffered with no organic explanation for her symptoms. In July 1996 the plaintiff’s condition was accepted by the manager of her retirement fund as being such as to warrant her being declared totally and permanently disabled for work and to be retired medically.

Following resolution of the proceedings arising out of the two accidents, and her retirement, the plaintiff made a dramatic and sudden recovery, which she attributes to a concerted effort on her own part. She was able to return to work and to work effectively until suffering another injury, on 28 August 1997. (I found the plaintiff’s account of, and her explanation for, her recovery between 1996 and 1997 unconvincing.) Again, by all accounts, the nature of the trauma of the incident of August 1997 was such as could have been expected to cause some pain and disability for a few weeks. But the plaintiff is, five and a half years later, severely disabled and incapable of working, or of doing even trivial domestic chores. Putting the matter in these stark terms raises obvious questions.

On the other hand, while I found the plaintiff difficult to assess as a witness, I detected nothing in the way that she gave her evidence that warrants an adverse finding on credibility based on demeanour. To the extent that suspicions are raised about the case she presents, they are based, not upon the demeanour either of the plaintiff or any of the witnesses called on her behalf, but on analysis of the objectively known facts. Further, I was impressed by the reports and the evidence of the plaintiff’s treating medical practitioner, Dr Myers and of Dr Champion. Were it not for the claimed recovery between 1996 and 1997 I would feel comfortable coming to a conclusion that the plaintiff is a person who suffers from an unusually, even bizarrely, severe response to relatively trivial injuries. However, such a conclusion would leave out of account not only her recovery, but also a number of accidents she has suffered which do not appear to have resulted in such a response. (A cynic may consider it not without significance that, so far as the evidence goes, these other accidents and injuries do not appear to be compensable, but no such issue was explored and the evidence would not permit an adverse finding, or indeed any finding, in this respect.)

Notwithstanding the question mark left over the matter by the 1996-1997 recovery, I have come to the view that the most likely explanation for the overall circumstances is that the plaintiff does react to injury in what would appear to be an excessive way. That is, I am of the view that both in relation to the motor vehicle accident and, possibly, the refrigerator accident, the plaintiff suffered symptoms far more severe than would have been expected or could have been explained on an organic basis. The same applies to her response to the 1997 injury. That is, as I understand it, the nature of CRPS.

On balance I accept the opinions and diagnoses of Drs Myers and Champion and Mr Borenstein.

This is for reasons already given. The alternative hypothesis, that advanced on behalf of the Bank, is that the plaintiff has embarked upon an elaborate and sustained fraud. In order to pursue her goal (presumably of achieving compensation) she has persistently attended medical practitioners, including Mr Borenstein, on a twice weekly basis, has subjected herself to a medication regime of significant proportions and has deliberately and consistently told untruths to medical practitioners. Not only that, but she has been able to deceive her own treating medical practitioners in this way. I am unable to conclude that this is the case. A far more plausible hypothesis is that advanced by Dr Myers and Champion. It is true that that leaves in an unsatisfactory state the evidence of the almost magical recovery following resolution of the District Court proceedings and I have not overlooked that in reaching my conclusions. Within months of presenting a case based on evidence that she was permanently disabled, and shortly thereafter seeking retirement on the same basis, the plaintiff recovered sufficiently to effect a full return to work. There is no doubt that these facts invite scepticism. It is a matter that must be left in an unsatisfactory state.

If it is accepted – and I do, with some hesitation, accept – that the plaintiff’s complaints as late as 1996 were genuine, if organically inexplicable, then the question of her capacity for work in 1997 arises. But this is simply answered by the fact that the plaintiff did return to work and performed her duties effectively for some months. There was no evidence from employees of the Bank that the plaintiff displayed any difficulty in discharging her duties.

One consequence of the conclusions I have reached is that the plaintiff was an unusually vulnerable individual. The principle stated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 requires consideration. Applying those principles I bear in mind, on the one hand that the plaintiff had reached the age of 46 before suffering the present injury and its consequences, and on the other hand, that the history I have recounted establishes her vulnerability. The likelihood is that she would have reached a condition of disability, if not as a result of the collapse of the coin tray shelf, then for some other reason. She would have responded to almost any minor injury in a similar way. Accordingly, the amounts allowed for compensation for future losses must be discounted by a very significantly greater degree than is ordinarily the case. On this basis I propose to apply a discount to the amounts allowed under those heads of damage of 35%. quantification of damages

The plaintiff claims a very large sum by way of damages in order to compensate her for the injury. On her behalf, a schedule of damages claimed was put before me. It quantifies the plaintiff’s claim at no less that $2,994,223.40. I shall deal with each of the headings under which she claims damages in turn, although not necessarily in the same sequence as the schedule. general damages

Senior counsel for the plaintiff contended that an adequate sum to compensate the plaintiff for pain and suffering and loss of amenity of life is in the order of $150,000.00. This calls for a brief review of the evidence concerning the consequences to the plaintiff of her injury. That will necessitate some repetition of matters to which reference has already been made.It will be recalled that she did not obtain immediate medical assistance because of the long wait she was told she would have to endure before she could be seen by a medical practitioner. She said that on the evening of the injury she was in so much pain that her daughter rang St George Hospital but that she did not pursue this because she was again told to anticipate a very lengthy wait. She could not sleep that night and could not get comfortable. The following day she did see a doctor, Dr Nigro. By that time her hand was very puffy, swollen and bruised. Dr Nigro prescribed an ointment, pain killing medication, and rest. Over the weekend which followed she had severe pain and was unable to sleep and was unable to use her hand which remained swollen. She went to work, as directed, the following Tuesday, but had what she described as “a terrible day”. She was taking constant medication to control the pain. She left work, in pain, and has not returned since. She experienced extreme temperature changes in her hand and recurrent swelling. She began to experience a sensation on her hand which she described as: “It’s like the sensation when you say somebody walked over your grave. It is a creepy sensation on the back of my hand.”

She first noticed this a few weeks after the accident.

She attended a pain clinic at St George Hospital where she was given some cream to rub into her hand which did diminish, although not eliminate, the pain. She began seeing a physiotherapist, Ms Wilde, who arranged the TENS machine which she continues to use, and from which she derives some benefit. She also uses a splint provided by Ms Wilde. She sees Mr Borenstein, the psychologist, twice weekly for hypno-therapy. She finds this helps her to sleep. She has regular massage, as much as six times per week.

She found that her range of activities on the farm and in the house was limited.

After a time she began to notice pain in her left thumb joint as she used it to grip objects.

She has attempted to do more but has had no improvement in the right hand. She has begun having massage to the forearm and finds this beneficial.

She has had a cortisone injection in the right hand and been given an ultrasound investigation and a variety of forms of medication.

She uses the hydrotherapy pool in Goulburn on an irregular basis and attempts to adapt a basin at home for the same purpose. She obtains some relief from this. She has injections given to her by Dr Myers, and these too give her considerable relief.

As at the time of giving evidence, the plaintiff claimed to experience significant physical restrictions in her daily activities. She has difficulty in hanging out and in bringing in the laundry because of pain in her fingers which slows her down. Her grip is weakened and she frequently drops and breaks household items. She has stopped driving a motor vehicle and resents her dependence on members of the family for transport. She has to use her left hand for hair brushing, applying make-up and so forth, and requires some help in dressing. She has had to abandon a number of hobbies and interests that she previously pursued, such as needlework, tapestry and decoupage. She still has interference with her sleep. She suffers from adjustment disorder, as diagnosed by Mr Borenstein and Dr Morse.

The plaintiff’s treating medical practitioners agree that it is unlikely that she will ever be able to return to work. Dr Myers was of the view that she would require prolonged hand therapy and ongoing medications and continued use of a TENS machine. He thought that if there were progression of pain in the left hand it would require the use of splints and/or periodic cortisone injections and envisaged, in the distant future, surgery.

In a report dated 23 June 2000, Dr Myers observed that the plaintiff almost certainly had pre-existing osteoarthritis in her left thumb joint and that the injury to her right hand hastened, but may not have caused, the deterioration in the left hand.

It is difficult to assess what the future holds for the plaintiff. Dr Myers, in a report dated 23 June 2000, considered her overall prognosis to be “very guarded”. He foresaw potential for gradual deterioration in the left thumb function and anticipated surgery to that digit. He considered that this would be an extremely stressful time for the plaintiff because there is a risk that she would develop a CRPS affecting the left hand, and that, if this came to pass, then the effects on her overall function would be “profound”.

In his report of January 1999, Dr Champion assessed the permanent loss of efficient use of the right arm below the elbow as being in the order of 50%, and thought that there was probably permanent loss of efficient use of the left arm below the elbow in the order of 12.5%. He considered the reality to be that that disability was permanent.

Dr Yeo (20 July 2000) was also of the view that the then level of disability would be permanent. However, in cross-examination, Dr Yeo assented to the proposition that, by continuing the use of techniques the plaintiff had previously adopted, she should have “very good prospects” of recovery.

In my view the amount suggested to be appropriate compensation for pain and suffering and loss of amenity of life is excessive. I have concluded that the appropriate sum to award the plaintiff for general damages is $60,000.00. Of that, two thirds, $40,000.00, should be attributed to the period from the date of the accident to the date of judgment, and thereby attract interest. Interest is to be awarded at 2% per annum, or $800.00 for the five years and eight months that have elapsed since the injury. The sum I award by way of interest on past general damages is $4,528.00. out of pocket expenses - past

The plaintiff claims an extraordinarily large figure - $474,061.40 - by way of already incurred expenses. This arose in a somewhat unusual way. Commercial Union (the second cross-defendant) was the workers’ compensation insurer for Adecco. In the schedule of damages provided by the plaintiff, I was informed that sums totalling $471,067.00 had been paid by Commercial Union to or on behalf of the plaintiff. An additional sum of $2,994.40 was said to remain unpaid as at the time of preparation of the schedule. I was given little additional information as to the makeup of these very large sums, although there were, at times, references in the evidence to sums paid by Commercial Union to members of the plaintiff’s family under the principles stated in Griffiths v Kerkemeyer (1997) 139 CLR 161, and there was (exhibit F) a list of payments made and their general character without further identification of the purpose of the payments. This was said to represent and quantify the claim made by the plaintiff for out-of-pocket expenses to the date of the schedule. The most cursory glance at exhibit F demonstrates, unquestionably, that this claim is untenable. Exhibit F states that a total sum of $569,424.69 has been paid to or on the plaintiff’s behalf. This appears to include weekly payments made to her, and a lump sum paid under s66 of the Workers Compensation Act 1987 .

I accept the defendant’s submission that it is not bound by decisions made in relation to payments pursuant to workers’ compensation legislation made by Commercial Union, even where those payments can be shown, or can reasonably be taken, to have been made in respect of medical or medical-related expenses, and not as weekly payments. The fact that such payments have been made is not evidence of the reasonableness of the plaintiff’s claims or the liability of the Bank to pay them. On the other hand, exhibit F is the only evidence of expenses already incurred and was admitted in the plaintiff’s case without objection (see T442). Exhibit F is mystifying. It is impossible to make any sense of it. For example, it appears to identify, without dates, extraordinarily large payments – that is, amounting to almost $200,000.00 - for ambulance travel. There is no evidence that the plaintiff ever required transport by ambulance. Even if, taking a liberal view, I were to interpret those payments as representing travel to medical and other appointments (and there is not the slightest basis in the evidence for doing so) the claim is astronomical. I simply cannot believe that exhibit F is an accurate account of payments made to or on behalf of the plaintiff. Certainly it is not a document on which I am prepared to act. It is a pity that I was not assisted by either party by any proper analysis of it contents. The quite unsatisfactory state of the evidence in relation to past out of pocket expenses means that I cannot immediately proceed to final judgment. It will be necessary for the parties to ascertain the true position in regard to this head of damages. It would be possible, of course, simply to conclude that the plaintiff has not made out her entitlement to an award of damages under this head, but that would plainly be the source of an injustice. I am not prepared to take that course. out of pocket expenses – future

The plaintiff claims another very large sum – $343,346.54 – by way of out of pocket expenses anticipated for the future. These were quantified in somewhat more detail, and were the subject of evidence. It will be necessary to deal with each claimed item individually. (i) psychological treatment

At the time of giving evidence the plaintiff was consulting her psychologist, Mr Borenstein, twice weekly for hypnosis. At the date of his most recent report, 11 September 2001, Mr Borenstein stated his view that she would require ongoing treatment of this frequency for approximately another six months with thereafter a reduction to once per week for approximately another six months, followed by fortnightly contact for twelve months and, finally, monthly consultations, presumably for life.

The cost of a consultation as at that date was $158.00 per hour. I presume that each consultation is in the order of one hour.

With a life expectancy of thirty three and a half years, on the 3% tables (on the calculations prepared by the plaintiff’s legal representatives) acceptance of this regime of psychological treatment would yield a sum of $46,590.47.

Dr Morse, reporting on 13 July 2000, thought that the plaintiff did not need treatment by a psychiatrist but that she would benefit from seeing a psychologist in combination with her general practitioner. He thought the benefit she would obtain from that course would be to give her ways of dealing with the pain, getting some more positive outlook on life and encouragement to activity. Dr Morse did not specify the regularity or the frequency of psychological consultation that he recommended, nor did he prognosticate for how long the plaintiff would benefit from the treatment.

In his report of February 2000, Dr McGuire said that he could not agree with the treatment recommended by Mr Borenstein, and that he would have expected that the plaintiff would, in the treatment she has had to date, have been taught all of the relevant and appropriate pain management techniques.

He thought that the plaintiff presented as “well motivated to adapt to the permanence of any disability” such that she would not be left with any long-term permanent impairment to her emotional state.

I am not prepared to accept that the plaintiff will require psychological treatment for the rest of her life. I am of the view that the position taken by Dr McGuire is a more realistic one. It seems to me to be consistent with the view expressed by Dr Morse, that the benefit the plaintiff should obtain from psychological treatment is within a relatively narrow compass and that the objectives should be achieved (if they have not already been achieved) within a relatively short time.

Given that the plaintiff has become accustomed to the very frequent treatment she has had, I think it fair to allow for weekly treatments for six months. For future psychological treatment I allow the sum of $4,108.00. (ii) orthopaedic

Dr Myers is the plaintiff’s treating orthopaedic specialist. He considered that the plaintiff’s overall prognosis is “very guarded” and foresaw gradual deterioration and possible future surgery to the left hand. He assessed the present day costs of the surgery at $2,000.00, including surgeon’s, assistant’s and anaesthetic fees. He was unable to assist with the cost of hospitalisation, but said that the plaintiff would require hospitalisation for approximately three to four days.

The plaintiff’s left had was not, of course, injured in August 1997. The connection between that injury and possible future surgery to the left hand has been in the additional demands made, and strain put upon, the left hand as a result of the disability of the right.

Apart from that, Dr Myers did not suggest regular consultations with him. The plaintiff relied upon the report of Dr Yeo of 7 September 2001 to support a claim for compensation for thrice annual consultations with Dr Myers, and thereafter annual reviews for life.

I do not read Dr Yeo’s report as supporting any such proposition. What Dr Yeo said in the report mentioned was that further treatment would be necessary to help control symptoms involving the plaintiff’s left arm. He suggested that a detailed medical report be requested from Dr Myers. This was obviously appropriate. In an earlier report (23 December 1999) Dr Yeo had made a suggestion of three consultations annually with Dr Myers and thereafter once annually. He abandoned this in the later report, suggesting that Dr Myers be consulted on this aspect of the plaintiff’s future needs. I accept that Dr Myers’ opinion is the relevant one in this matter. Dr Myers did furnish a report, to the effect already outlined, and there is nothing in that report that supports a claim for three consultations in the next year, and annual reviews for life.

I propose to allow for one future consultation with Dr Myers, at the claimed rate of $68.00, and half of the estimated costs of the surgery, $1,000.00. This is because there is no certainty expressed in Dr Myers’ report that the plaintiff will require surgery. He advances the need for surgery as a possibility only, and then “in the long term”. Further, the pre-existing osteoarthritis in the left hand predisposed the plaintiff to potential surgery in that had, something for which the Bank cannot be held liable. I will also allow a sum (an estimate only, in the absence of evidence) of $1,000.00 for hospitalisation. (iii) general practitioner

The plaintiff claims an allowance for four-weekly consultations with her general practitioner at a cost of $40.00 per consultation. She quantifies this at $10,998.00. Support for this is also drawn from the report of Dr Yeo of 7 September 2001. What Dr Yeo said was that the plaintiff would require review by her local doctor at least every four weeks with regular repeat prescriptions for medication to control pain.

Once again, this was not supported by the report of Dr Myers, although Dr Myers did say that the plaintiff would require ongoing conservative treatment in the form of oral analgesics and other medication he specified.

Dr Nigro, the plaintiff’s general practitioner, reported on 24 October 2001 that the plaintiff would require fortnightly visits to a general practitioner and weekly visits to a physiotherapist. He also set out a lengthy list of medications required.

Dr Nigro did not explain what treatment he envisaged being provided to the plaintiff during these proposed fortnightly visits, nor what he thought could be achieved.

I reject the proposition that the plaintiff requires general practitioner treatment at the proposed level. I cannot accept that, even if she does require ongoing treatment for the rest of her life, it will be necessary for her personally to attend upon the general practitioner for the purpose of obtaining prescriptions. It is not possible to be precise about the plaintiff’s future general practitioner needs, and I have come to the view that the figure which will properly allow for her needs in this respect is a lump sum of $8,000.00. (iv) future medication

The plaintiff claims a total sum of $73,378.66 for future medication, identified in the schedule of damages. No reference, however, was made in the schedule to the evidentiary basis for this very large claim.

The plaintiff’s medication regime was described by her in her evidence in chief (T52ff). This bore little relationship to the list of medications for which damages were claimed in the schedule of damages. Further, part of exhibit A, comprising medical and other reports assembled for the purposes of the plaintiff’s case, was an assessment of the costs of a variety of medications. These, too, bore little relationship to the evidence given by the plaintiff, or to the costs claimed in the schedule of damages.

All this makes it particularly difficult to assess what is a proper figure to allow for medication into the future. Doing the best I can, I allow $10,000.00. occupational therapy

A lengthy report was provided by Ms Margi MacMaster, a consultant occupational therapist who is identified on her letterhead as conducting a “rehabilitation and medico-legal consultancy”. Ms MacMaster’s initial assessment was conducted in her Pymble office on 23 July 1999 and subsequently, on 27 August 1999, she visited the plaintiff in her home in order to identify the plaintiff’s needs from an occupational therapy point of view. Ms MacMaster reported on 5 November 1999. She included in her report a list of medications which she was told the plaintiff was, at the date of her consultation, using. This list, also, bore little, if any, relationship to the plaintiff’s claims made in her schedule of damages. Ms MacMaster was of the view that, if the assistance of her husband and children had not been available to the plaintiff, then she would have required assistance for two hours daily in order to manage her daily activities and other activities. Ms MacMaster noted that, having regard to the plaintiff’s residence on a country property, additional travel would be involved in attendance of a carer. She estimated the cost of assistance at between $20.00 and $30.00 per hour.

Ms MacMaster assessed the plaintiff as requiring intermittent services of an occupational therapist and estimated this need as an annual review for approximately five years, and once every five years thereafter. She estimated the cost of review, allowing four hours annually, at between $120.00 and $150.00 per hour. She also considered that the plaintiff would require replacement splints for each hand annually, the cost of which she assessed at between $75.00 and $80.00 for the right hand and between $25 and $45 for the left hand. A total claim of $3,713.15 is made on the plaintiff’s behalf. This is one of the more modest claims in the plaintiff’s catalogue. I propose to allow it. equipment

A total of $54,453.00 is claimed under the heading “equipment”. Ms MacMaster identified a large number of items of equipment which, supposedly, would be easier for the plaintiff to use and which would make her daily life easier. She included the cost and estimated replacement frequency of each item.

Given that the Bank’s position was that the plaintiff does not suffer from the condition she claims, no detailed separate argument was addressed to this claim, although senior counsel for the Bank did submit that the claims were unjustified. There is much force in this submission.

In this claim a glaring fallacy is readily observed. That is that many, if not most, or even all, of the items mentioned on the list are either ordinary domestic items which one would expect to find in the average household (and which would require periodic replacement), or, alternatively, items of that kind which are modified for use by a person with a disability such as that from which the plaintiff suffers. All that the plaintiff is entitled to are any additional costs she will incur as a result of a need for equipment of a special kind. Ms MacMaster has not identified the difference in the cost of such ordinary domestic items and those specially modified. Nor has she, other than in the most general terms, identified the manner in which the items would aid the plaintiff. A few illustrations from the list will suffice. Ms MacMaster has recommended the purchase of three “click clack airtight canisters and storers”, at a cost of $22.80 each, to be replaced every five or ten years. Airtight canisters and storers (whether of the “click clack” variety or otherwise) are to be found in most homes. How “click clack” canisters would benefit the plaintiff is not specified. Nor is the difference in cost between the canisters recommended and the ordinary variety. (That is, if “click clack” canisters are not ordinary. I was not told what special qualities they have that would enhance the plaintiff’s life.) Another item is a “Multichop” chopping board at a cost of $85.00, to be replaced every one or two years. Another is “Stirex” ergonomic tongs. Chopping boards and tongs are items commonly found in domestic premises. So it is with many of the other items on Ms MacMaster’s list, such as a “Black and Decker Slender Blender”, a bottle and glass brush, a laundry trolley.

Other items are mentioned but there is no explanation of their purpose. For example, Ms MacMaster suggests that the plaintiff will require provision, every five years, of a “Wallace utility board”, but does not explain what this item of equipment is. All that I am told is that it is one of many items intended “to assist one handed function in domestic tasks and promote independence”. Just how it could do so is not explained and is not apparent to me. Since the ergonomic tongs and chopping board are also on this list, the information is of little assistance.

Also on the list, identified as intended “to assist loading and unloading of washing and crockery” is a Fisher and Paykel drawer-type dishwasher. An “upside down” refrigerator is recommended, its purpose being to “assist improved access to fridge for heavier freezer items”. It is anticipated to require replacement every five to ten years.

The claims made on the plaintiff’s behalf escalated in their extravagance. Ms Diana Chamberlain, also an occupational therapist, furnished a report along the same lines as that of Ms MacMaster. Included in her recommendations were modifications to the plaintiff’s home, such as removal of the bath and construction of a hobless shower area at a cost of approximately $5,000.00. Even more surprising than this is the recommendation for removal of a wall between bathroom and toilet in order to provide an adequate turning circle for a (future) transporter commode, at a cost of between $2,000.00 and $4,000.00. No reason was advanced why the plaintiff would need a transporter commode, given that her injury is to her hands. Also recommended is a powerlift/recliner lounge chair: “when it becomes difficult for [the plaintiff] to rise from a chair because she cannot get adequate leverage by pushing up with her hands/arms on the arms of a chair.”

Ms Chamberlain recommended (for what purpose she did not explain) provision of a “cardholder”, which appears on the schedule of damages as a “bridge card holder”. She suggested provision of voice activated software, for which is claimed $2,111.61.

In the absence of evidence it is impossible properly to assess the plaintiff’s claim in respect of her future equipment needs. What can be said with confidence is that the justification for the sum of almost $55,000.00 is not to be found in the evidence. I am prepared to accept that some items the plaintiff will need to adapt to her injury will be more expensive than those ordinarily to be found in a domestic household, and that the plaintiff would benefit from replacement of some existing items with more specialised kinds, but, in my view, the additional cost is small. I propose to allow $8,000.00. physiotherapy

The plaintiff was referred to Miss Beckett, a physiotherapist, on 27 May 1999 and continued, at least to the date of hearing, to consult Ms Beckett on a regular and very frequent basis. In her evidence in chief she said that she had seen Ms Beckett in the preceding week six times. Ms Beckett massages her forearm, hands and fingers and provided heat treatment on the left hand and thumb. The plaintiff believed that she obtained benefit from this treatment.

Ms Beckett provided a report stating her expectation that the plaintiff would require ongoing treatment with the frequency of the treatment she was then receiving, at an average cost of $800.00 per month. The amount claimed for future physiotherapy, at $800.00 per month for the remainder of the plaintiff’s life, is $203,045.07.

I cannot avoid the conclusion that this claim, like some of those I have already mentioned, is excessive and that the treatment proposed is greatly more than is reasonably warranted in the circumstances. I cannot accept that the plaintiff will continue to require, or have, physiotherapy at that rate. I propose to allow the sum of $35,000.00 for future physiotherapy.

Another physiotherapist, Ms Julia Wilde, who specialises in hand therapy, recommended that the plaintiff use a TENS machine and she has done so for some time. Indeed, she used it during the course of giving evidence. She said that she finds it beneficial. A TENS machine costs approximately $300.00 and requires replacement approximately every eighteen months. Electrodes also require replacement.

I have less difficulty in allowing the costs of purchase, and associated costs, of a TENS machine, although I maintain my doubt as to whether it is reasonable to allow this for the remainder of the plaintiff’s life. However, the claim is supported by the evidence, and there is no evidence in contradiction. The cost of purchasing and replacing a TENS machine with the frequency stated is, when discounted, $4,234.23. Applying the same discounts to the cost of electrode replacement gives a figure of $3,519.36. Having regard to my doubts as to the reasonableness of allowing these amounts for the remainder of the plaintiff’s life, I propose to allow the sum of $5,500.00. future travel

The plaintiff also claims the sum of $252,778.03 for “future travel”. No justification is provided for this claim and I do not propose to allow it. past economic loss

The plaintiff claims, by way of past economic loss, a sum of $420.00 net per week for the first six months, up to 29 August 1997, a sum of $10,920.00. Thereafter, she claims $530.00 net per week. These figures were not challenged. The evidence of the plaintiff’s disability at that time is strong and I am satisfied that she should be allowed the sums so claimed. The amount allowed for economic loss from the date of injury to 30 April 2003 is $152,960.00. future economic loss

I accept the evidence that it is unlikely that the plaintiff will return to the workforce. Accordingly, she is entitled to compensation for loss of income for the future for whatever would have been her working life. She claims an allowance to the age of 65. She did not give evidence that she intended to work to that age and, having regard to her family circumstances and the state of her health other than her hand injury (her diabetes has worsened, as has her hypertension and she suffered from osteoarthritis in the left hand), I doubt that she would have done so. I am mindful, however, that, as I have already decided that the award of damages should be heavily discounted in order to allow for the very real chance that something else would have caused a disability, I should not doubly discount her award. Even so, I am satisfied that the plaintiff would have worked, at most, to the age of 60. The plaintiff was born on 7 June 1951. She is now 51 years and eleven months. I propose to allow damages as compensation for future economic loss for eight years. The 3% multiplier on 18 years is 371.8. For future economic loss the plaintiff is awarded $197,054.00. Fox v Wood (1981) 148 CLR 438

The plaintiff is entitled to reimbursement for tax paid on the payments she has received pursuant to workers compensation legislation. I am not in possession of up-to-date figures. It will be necessary for the parties to identify the amount to which she is entitled. superannuation

The plaintiff’s claim for superannuation, both past and future, is set out in the schedule of damages and supported by a report of Furzer Crestani Services, a chartered accountancy firm. No challenge was made to the assumptions contained in the report, or to the calculations, and no contrary evidence was adduced on behalf of the Bank. Accordingly, although the direct evidence is scanty, I think that the plaintiff’s claim should be allowed. However, as senior counsel for the plaintiff pointed out, the calculations contained in the report are flawed, being made on 5% multiplier tables. It will be necessary for the parties to adjust the figures. Further, the calculations need to be brought up to date. Those provided in the report are as at 1 March 2000. It will be necessary for the parties to make the necessary calculations, on the basis that I propose to allow the plaintiff’s claim; this will have to be done in accordance with my earlier finding that the plaintiff would have worked to aged 60. domestic assistance – Griffiths v Kerkemeyer (1997) 139 CLR 161

The plaintiff makes a grand total claim in the sum of $899,845.36. It is necessary to dissect the claim. (i) to date

Under the heading “Past Care” the plaintiff claims a total of $161,804.19, made up of $120,292.30 for domestic assistance and personal care, and $41,511.89 for “handyman assistance”. She sought to justify this, not by reference to the evidence of what assistance she had actually received, but by reference to recommendations made by Ms Chamberlain for the plaintiff’s future needs.

The plaintiff’s evidence in relation to voluntary assistance she had received was slight. She said that in the latter part of 1998 (the transcript reads 1988, but this plainly an error) Commercial Union paid for some home help. When asked what it was that this person did, the plaintiff replied: “the things that my husband and son and daughter weren’t doing like cleaning baths and toilets and cleaning the oven, washing out my fridge.” (Tt39-40)

She said that members of the family continued to “do things around the house”, and that this involved more than was covered by the continuing payments by Commercial Union. She made a reference to being driven to places by one or other members of her family, and to assistance with personal grooming and dressing, again by one or other of the members of her family. In this context she described her family as “exceptional”, and said that she regarded herself as having been very well looked after by them. The plaintiff’s husband described her ability to perform domestic tasks as “virtually non-existent” and described her attempts to do as producing breakages of household items. Her daughter said that since August 1997 she herself had undertaken domestic chores such as vacuuming, cooking, dishwashing and clothes washing – what she described as everything that her mother had done before the accident. Ms Chamberlain, the occupational therapist, reported that Commercial Union currently pay for four hours per week of domestic assistance which included meal preparation, washing, ironing, vacuuming and cleaning the kitchen and bathroom. She considered that this amount seemed reasonable and would cost approximately $20.00 an hour. She also referred to assistance of one hour per day for seven days per week from a home care agency in Crookwell and said that this assistance was for dressing and foot care which, she said, is essential for a diabetic (as is the plaintiff). There was no evidence from the plaintiff concerning this assistance. Ms Chamberlain considered this also to be reasonable and costed it also at $20.00 per hour. However, she considered that the need would be greater on occasions when the plaintiff’s daughter was unavailable to assist, and that the assistance should then be increased to two hours a day, including assistance with showering. She also considered that provision should be made for the plaintiff to have a pedicure every two months, at an approximate cost of $25.00 per session.

There was, again, no direct evidence of the amount of assistance currently funded by Commercial Union, but no issue was taken with Ms Chamberlain’s report. That has, in any event, little or no bearing upon the evaluation of the plaintiff’s needs. The Bank is not bound by decisions made by the workers’ compensation insurer.

The source of the claim for “handyman assistance” is not identified but it may be the report of Dr Yeo, dated 20 July 2000. Dr Yeo wrote: “I now recommend the provision of … four hours of handyman’s assistance every two weeks.”

There was not a word of evidence concerning the provision of “handyman assistance” to cover activities that the plaintiff herself would, if not injured, have undertaken. I reject that claim.

Accepting Ms Chamberlain’s assessment, and costings, I propose to allow a sum of $20,000.00 under this head of damages. the future

In the schedule of damages, reference is made to a claim for eight hours’ domestic assistance and fourteen hours’ personal care assistance per week, purportedly derived from Ms Chamberlain’s report. The claim is calculated accordingly. The schedule misstates the content of Ms Chamberlain’s report which is as I have outlined above. In a supplementary report Ms Chamberlain recommended an increased level of assistance during periods when the plaintiff’s daughter, Leigh, is unavailable.

There was no evidence as to the continuing availability of the plaintiff’s daughter but it should not be assumed that she will remain in residence with the plaintiff permanently and, in any event, to the extent that she is undertaking tasks properly those of the plaintiff, the plaintiff is entitled to compensation on the principles stated in Griffiths v Kerkemeyer .

There is something of a tension, however, in assessing the plaintiff’s entitlement to compensation under those principles. To the extent that Ms Leigh Perkins is providing the plaintiff with assistance in personal hygiene, dressing, and so on, it may be assumed that this is a result of the injury, and a suitable subject for compensation. But to the extent that Ms Perkins, as an adult living in the same house, is shouldering her share of the domestic duties, it would not be right to award damages to the plaintiff on the basis of the kind of obligation that underlies the decision in Griffiths v Kerkemeyer . In any event, the evidence supporting the need for domestic assistance of more than four hours per week is not strong.

Nor do I think the evidence supports the claim for personal care assistance at one hour per day during Ms Perkins’ presence, and at two hours per day during her absence. The personal care amounts to hair brushing and some assistance with dressing, and some foot care. I am unable to see how this could, in total, amount to more than half an hour per day. I am prepared to allow for domestic and personal care assistance for four and a half hours per week. The parties can perform the calculations.

Ms Chamberlain also recommended provision of “farmhand assistance”, quantified at four hours per week during Ms Perkins’ presence, and seven hours per week during her absence. Precisely what qualifications Ms Chamberlain has to make this assessment is not apparent. Her stated justification was as follows: “Prior to the injury, [the plaintiff] participated in the chores associated with running the property. Leigh largely fulfils this role currently, e.g. helping with the feeding of young animals, collecting supplies, maintenance of the home paddock etc.”

There is nothing in the evidence which would allow the conclusion to be drawn that the plaintiff requires assistance on the farm for seven hours per week. The plaintiff was asked in her evidence in chief what she did on the farm immediately prior to the injury. It is to be remembered that at this time the plaintiff was living in Sydney during the week and at the farm only on weekends. Her answer was: “I was doing anything that my family were doing. We were rock picking, I was helping with that; cleaning paddocks up; splitting firewood, I would help stack it; working in the shearing shed when we were crutching; I was sweeping up the wool; cleaning the locks from under the table, putting them into wool sacks and frames. About the only thing I did not do was throw fleeces.” (T24)

In cross-examination she modified the evidence about rock picking saying that her role in this activity was to drive a ride-on mower while the other members of her family collected rocks. The plaintiff said that, since her injury, she no longer works in the shearing shed, but that otherwise she had attempted most of the activities she had previously undertaken and that this resulted in increased pain. She said she had learned to moderate what she did but still did things.

This evidence does not support her claim for farmhand assistance either of four or of seven hours per week. The time previously spent by the plaintiff in the shearing shed was not quantified and there is no material on which I could reach a conclusion about the time previously spent by her on that kind of work. I think the plaintiff is entitled to some compensation for her reduced capacity on the farm, which would enable her to secure paid assistance to substitute for her previous involvement. I allow two hours per week for this claim. I do not assume that the plaintiff would have continued to engage herself on the farm for the remainder of her life expectancy, about 28 years, or to age 80. I will allow this sum, like her future wage loss, to age 60. I will leave it to the parties to calculate the figure. modifications to the plaintiff’s home

Under the heading “Accommodation or Renovation”, the plaintiff claimed a sum of no less than $181,325.37 for modification of her home to accommodate her disability. The claim is purportedly supported by a report of Mr Garry Dutaillis, an architect and the principal of the firm Garry Dutaillis and Associates Pty Ltd. It is perhaps the most exaggerated of all the claims made on the plaintiff’s behalf.

I have no way of knowing what instructions were given to Mr Dutaillis by the plaintiff’s solicitors. In his report he identified a number of documents with which he was provided. These included a number of medical and other reports to which reference has already been made.

The plaintiff and her husband currently own a property (or two properties, the evidence is unclear) on which are constructed two houses. Both are extremely modest and, externally at least, in a poor state of repair. The family occupies one, and they have plans to renovate the other for their future occupation.

What Mr Dutaillis recommended, by way of modification to the plaintiff’s home, may be summarised as follows: (i) renovation of one of the houses in order to make provision for a “rural worker’s house”, at a cost of $20,000.00; (ii) provision of a new access road to the property at an unquantified cost; (iii) a remodelling of the existing bathroom with the provision of additional space in the shower and spa areas, adjustment of floor levels to provide easy access to the spa bath, at a cost of $18,500.00; (iv) provision of a separate ensuite to the main bedroom of the house, constructed as a disabled unit, at a cost of $28,000.00; (v) a kitchen fit-out, with cupboard units, at a cost of $27,250.00; (vi) a laundry fit-out at a cost of $4,500.00; (vi) provision of a covered patio and ramped access to the eastern side of the house through the mud room at a cost of $12,500.00; (vii) provision of deck and main entry to the house with ramps, steps and handrails, at a cost of $4,000.00; (viii) provision of a thermostatic water mixing valve to the water supply to control temperature to the house and fitting of flick-mixer valves to all water outlets, at a total cost of $4,350.00; (ix) provision of “rocker” type light and power switches, at a cost of $1,320.00; (x) provision of lever-action latches and locks to all doors, at a cost of $3,600.00; (xi) provision of suitable framed windows with smooth action glides to allow the fitting of larger lock and latches, at a cost of $22,800.00; (xii) provision of a ducted cleaning unit with outlets throughout the house, at a cost of $3,600.00.

The recommendation for the provision of a rural worker’s house appears to be based upon a report of Professor Yeo. The relevant part of the report was translated by Mr Dutaillis as: “Professor John Yeo has recommended that a jackaroo be appointed full-time to assist in, and around the property.”

In fact, as Mr Dutaillis acknowledged, what Dr Yeo said was: “If the patient was living on her own, without the assistance of her husband and adult children, then she would require at least a third year jackaroo full time, to assist in and around her property.”

The plaintiff does not live alone, without the assistance of her husband and adult children, and it is unnecessary to take up time considering the appropriateness of Dr Yeo’s observation. There is not the slightest justification for allowing the sum of $20,000.00 to upgrade the house Mr Dutaillis envisages will be earmarked for a jackaroo.

Just why the plaintiff (suffering from a hand injury) should be provided, at the Bank’s expense, with a new access road is not clear from the report. Mr Dutaillis did acknowledge that the amount to be allowed may depend upon the standard of access which may have been acceptable to the plaintiff if uninjured. There is nothing in the evidence which can justify allowance for provision of a new access road to the property.

Similarly, why the plaintiff requires provision, as part of her damages, of a covered patio and ramped access to the eastern side of the house is not explained; nor why her condition necessitates the provision of ramps, steps and handrails to the deck and main entry of the house.

I could go on, but the same comments apply, generally speaking, to the entirety of the recommendations made by Mr Dutaillis.

I repeat that what the plaintiff is entitled to by way of compensation is a sum of money which will enable her to provide herself with such equipment and modifications as are reasonably necessary to enable her to live comfortably with the disability she now suffers. Her injury does not entitle her to upgrade her family accommodation at the expense of the Bank. The standard of accommodation the plaintiff did provide for herself in the past, and would have provided for herself in the future, is a relevant consideration in the evaluation of what is reasonable. In this respect both Mr Dutaillis and Ms Chamberlain describe the plaintiff’s present accommodation as “fairly basic” but recognise that the plaintiff and her family choose to live in this way because they enjoy the rural lifestyle.

The plaintiff has not been well served by this report, although where the blame lies for that I am not able to say. The claims made are grossly excessive and demonstrate a lack of understanding of the purpose of an award of damages. This is an echo of the approach taken in the report of Ms MacMaster. Both leave me with the impression that, either the authors of the reports, or those who instructed them, perceive an injury at work as akin to a lottery win, and a defendant as an unlimited bucket of cash for the benefit of the plaintiff.

It is relatively easy to reject some of the claims made arising out of Mr Dutaillis’ report. I reject the claim for allowance for an upgrade of the rural workers’ house, for a new access road, for a covered patio and ramp access, for ramps, steps and handrails to the deck and main entrance, for a separate en suite, and for a ducted cleaning unit. As to the other items, I am left with the feeling that there may be some substance in modest claim for modification, for example, of taps, light and power switches, and door and window latches (but not windows). On the limited information available I propose to allow $10,000.00.

Also put before me as part of exhibit B was a report of the NRMA concerning vehicle operational costs. No claim in this respect was made in the schedule of damages. It is not at all clear for what purpose the report was tendered and, in any event, the factual basis for making an allowance for motor vehicle costs was not established in the evidence. I disregard the NRMA report.

Ms Chamberlain also recommended provision of a hydrotherapy pool, but this was not costed, was not taken up in the schedule of damages, and is rejected.

The plaintiff will be entitled to a verdict calculated in accordance with these findings and conclusions. It will be necessary for the parties to bring in short minutes of order to reflect these conclusions. the cross-claims the first cross-claim (amended): the Bank v Adecco

By paragraph 17 of the amended first cross-claim, the Bank pleads its claim against Adecco in the following way: “17(a) Indemnity and/or contribution pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 together with costs and interest. (b) Damages together with costs and interest for breach of duty of care to the Commonwealth Bank. (c) Indemnity pursuant to clause 6.3 of the Employment Agency Agreement together with costs and interest. (d) Damages for breach of clauses 3.1, 6.1 and 6.3 of the Employment Agency Agreement, together with costs and interest. (e) Damages for breach of schedule 1 of the Employment Agency Agreement, together with costs and interest .” (The underlining signifies an amendment to the original cross-claim.)

There are two strands to the claim as pleaded. The first is a claim for contribution, pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946, (“ the LR (MP) Act ”) in respect of any liability (being liability for damages, interest and costs) it may be held to bear in respect of the plaintiff. S 5 of the LR (MP) Act is relevantly in the following terms: “ 5. Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort: (a) … (b) … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

By the first part of the claim, the Bank asserts that Adecco was itself liable in respect of the damage sustained by the plaintiff, and ought to be required to contribute to her award of damages in whatever sum the court considers to be just and equitable having regard to Adecco’s responsibility for the damage.

By the second strand of its cross-claim, the Bank asserts that Adecco had a direct liability to it (the Bank) pursuant to an agreement (the Employment Agency Agreement, to which I shall refer as “the Agreement”) under which Adecco supplied employees (such as and including the plaintiff) to the Bank; and that, in a variety of respects, Adecco was in breach of the Agreement. the s5 claim against Adecco

Fundamental to the cross-claim brought under s5 of the LR (MP) Act is the establishment of Adecco’s own liability (or notional liability), independently of that of the Bank, to the plaintiff. It could not seriously be in issue that Adecco (as the plaintiff’s employer) owed her a duty of care. The particularisation of the Bank’s case against Adecco as part of the cross-claim is, to say the least, curious. It particularised the breach of damage it alleged against Adecco as: “7. … PARTICULARS: (a) Failure to provide and maintain a safe system of work. (b) Failure to train or adequately train the plaintiff. (c) Failure to inspect the place of work of the plaintiff to ensure that it was a safe workplace. (d) The Commonwealth Bank repeats paragraphs 5(a) – (g) of the statement of claim.”

By the particular lettered (d) the Bank adopted the particulars of negligence pleaded against it on behalf of the plaintiff in the statement of claim and turned those on Adecco. These particulars were pleaded as follows: “5. Particulars of negligence by the defendant (a) exposing the plaintiff to a real risk of injury (b) exposing the plaintiff to a real risk of injury which could have been avoided by the exercise of reasonable care (c) allowing excessive weights of coins to be placed upon the cash mobile (d) failing to inspect the cash mobile (e) failing to repair the cash mobile (f) providing a cash mobile which was unsafe (g) failing to warn the plaintiff of the risk of injury.”

That is, the Bank has pleaded that Adecco was in breach of its duty of care to the plaintiff by failing to provide and maintain a safe system of work (the system of work in fact provided and maintained by the Bank itself); by failing to inspect its (the Bank’s) own premises to ensure that they constituted a safe workplace; by exposing the plaintiff to a real risk of injury (that, presumably, being releasing the plaintiff into the Bank’s own work system); by allowing excessive amounts of coin to be placed upon the cash mobile, failing to inspect or repair the cash mobile (this being the cash mobile provided by the Bank, the weight of coins being that allowed or required by the Bank to be placed upon the mobile); providing a cash mobile which was unsafe; and failing to warn the plaintiff of the risk of injury (in working the Bank’s own system with its own equipment). In other words, put simply, the Bank alleges against Adecco that it was in breach of its duty of care to the plaintiff because it caused, allowed or required her to work in the Bank’s premises, with equipment provided by the Bank, and in a system provided and maintained by the Bank. The Bank seeks to show that Adecco is liable for the Bank’s own breach of duty.

This first strand of the first cross-claim depends upon the Bank’s establishing that Adecco was liable (or, if sued by the plaintiff, would have been liable) to the plaintiff for the damage she suffered. It does not depend upon any duty owed by Adecco to the Bank. In order to establish that Adecco is liable to the plaintiff, the Bank made the assertions contained in paragraph 17 of the statement of claim, and adopted the assertions made by the plaintiff against it.

Contrary to the argument advanced on behalf of Adecco (through its insurer, Commercial Union) there are aspects of the particularisation of the claim that would be capable, if proved, of establishing that Adecco was liable to the plaintiff. It would be open to a tribunal of fact to find that, in requiring the plaintiff to work in the Bank’s premises, but in failing to inspect the premises and the equipment provided for her, Adecco failed in its duty of care to her. As her employer, it had a non-delegable duty to ensure that she was provided with a safe system of work, and with safe and suitable equipment with which to perform her duties. Had the plaintiff sued Adecco, she may well have succeeded in establishing that Adecco had breached its duty to take reasonable care for her safety at work. However, this case was not made. There was no evidence that Adecco failed to inspect the premises, equipment or system of work. Thus the Bank failed to establish that Adecco is, or would if sued (by the plaintiff) have been liable in respect of the damage to the plaintiff. Senior counsel for the Bank relied heavily on the principle that the duty owed by an employer to an employee is non-delegable: Kondis v State Transport Authority (1984) 154 CLR 672. That principle would be very relevant in an action brought by the plaintiff against Adecco. But none of this avails the Bank.

As the organisation which provided the place, the system of work and the equipment with which the plaintiff was required to perform her duties, and had the power to direct her in the performance of her duties, the Bank had the primary obligation to ensure the plaintiff’s safety. To allow the Bank to recover a contribution towards the plaintiff’s damages from Adecco would be to allow it to take advantage of its own negligence. That would amount to an injustice. Even if the Bank had succeeded in establishing Adecco’s liability to the plaintiff, it would not be just and equitable to require Adecco to contribute to the damages to be awarded against the Bank. Were I to find that Adecco was liable to the plaintiff (or would, if sued by her, have been liable) I would, in the circumstances of this case, assess the contribution as nil. I reject the first cross-claim on this aspect for these two independent reasons – that is, the absence of evidence of any relevant breach of duty of care, and that even if such breach were established, that it could not be just and equitable to cause Adecco to contribute to the plaintiff’s losses. Failure on the part of an employer to discharge its duty to an employee gives rights to the employee against it but that does not make it just and equitable that the primary tort-feasor recover any contribution from the employer.

The Bank’s claim under s 5 of the LR (MP) Act is rejected. the contract claim against Adecco

That is not the end of the Bank’s claim against Adecco, and the remaining strand is rather more complex.

The Agreement (exhibit 1XC1) is dated 10 July 1992 and is expressed to commence on 4 August 1992. It begins by reciting that the Bank from time to time requires casual customer service officers to work in its Australian branches and that it has agreed to accept Adecco’s offer to provide it with staff for this purpose on the terms and conditions set out in the agreement. There is no limiting term in the agreement. It is open-ended as to its duration. Clause 9 contains provisions relevant to the term and termination but it is unnecessary to say more about them here.

The Agreement defines “ACSO” as an employee of Adecco who is eligible, trained and available to work as a casual customer service officer in one or more of the Australian branches of the Bank from time to time in accordance with the agreement (Clause 1.1).

Other relevant clauses are: “3.1 [Adecco] shall be responsible for the training of applicants and candidates to work as ACSO’s. 4.1 ACSO’s shall be employed by [Adecco] on the terms and conditions shown in Schedule Two and on such other terms and conditions not imcompatible therewith as [Adecco] determines. 4.7 The Bank is responsible for all acts, errors and omissions of ACSO’s, whether negligent, wilful or otherwise, during any assignment to the Bank and agrees to indemnify [Adecco] against any claims arising therefrom … 6.1 [Adecco] is responsible for compliance with the provisions of all laws, awards and industrial agreements relating to ACSO’s conditions of employment. 6.2 The Bank is responsible for compliance with the provisions of all laws, awards and industrial agreements relating to ACSO’s conditions of work in the Bank. 6.3 [Adecco] shall effect and maintain workers’ compensation insurance for ACSO’s in the name of [Adecco] (with the Bank’s interest noted thereon) according to respective State and Territory laws and giving unlimited Common Law cover where applicable and shall provide a certificate of currency from the insurance company to the Bank within 28 days of the date of signing of this Agreement and shall thereafter provide certificates of currency from the insurance company to the Bank within 28 days of each anniversary of the policy. 6.4 The Bank shall be responsible for effecting any fidelity, professional indemnity and public liability insurance which the Bank requires for ACSO’s and the Bank shall insure that any such policy or policies contain a subrogation waiver in favour of [Adecco] except in respect of [Adecco’s] own negligent or wilful acts or omissions. 8.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous communications, negotiations, arrangements and representations, oral or written, between the parties with respect to the subject matter of this agreement. 8.2 No agreement or understanding altering or extending this agreement shall be legally binding upon either party unless in writing and signed by both parties.” (The punctuation is reproduced as in the original.)

Attached to the Agreement are five schedules containing further provisions dealing with, respectively, a recruitment programme, terms and conditions of employment of ACSOs by Adecco, rates payable, “transfer fees”, and an ACSO Code of Conduct.

The key clause in relation to this aspect of the first cross-claim is clause 6.3. Its proper construction is fundamental to the determination of the first cross-claim.

It is the Bank’s case that clause 6.3 was operative as at August 1997, the date of the plaintiff’s injury, and that it required Adecco to effect insurance that would cover the Bank against claims by Adecco’s employees, either under workers’ compensation legislation or at common law. Counsel for Adecco submitted to the contrary, arguing on two fronts; firstly, that clause 6.3 was not, as at 1997, operative, and secondly, that even if it were, it did not bear the construction placed upon it on behalf of the Bank.

In support of the first proposition, counsel cited subsequent agreements which, he argued, constituted variations to the Agreement, inter alia , omitting (by implication) clause 6.3. These documents were entitled “Mutual Understanding between the Commonwealth Bank of Australia and [Adecco].” The first was signed in August 1992. In this document reference is made to an “ACSO trial” being conducted in NSW by Adecco and the Bank but the trial is not further identified. It is therein stated that (presumably for the duration of the trial) ACSOs were to be employees of the Bank, managed by Adecco on an assignment by assignment basis. The significance of this is the departure from clause 4.1 of the Agreement, which expressly states that ACSOs were to be employed by Adecco on terms and conditions shown in Schedule Two to the Agreement.

A second Mutual Understanding was signed by the parties in April 1993 and effectively cancelled that of August 1992. In this document it is stated that those ACSOs employed by the Bank and managed by Adecco during the trial period were to be transferred to the employment of Adecco, effective 5 April 1993. Attached to the document recording the mutual understanding are amendments to various Schedules to the Agreement. Schedule Two of the Mutual Understanding records amendments to Schedule Two of the Agreement. Clause 6 of Schedule Two is in the following terms: “[Adecco] will effect and maintain workers’ compensation insurance… for ACSO’s as required by law.”

The 1993 Mutual Understanding is expressed to be made in accordance with clauses 8.2 and 8.3 of the Agreement. It may therefore properly be seen to be an alteration or variation of the agreement. The question is whether clause 6 of the Second Schedule, which casts upon Adecco an obligation to effect and maintain workers’ compensation insurance (but with no reference to insurance cover against common law liability, and with no reference to a notation of the Bank’s interest on the policy), by implication replaced clause 6.3 of the Agreement, requiring Adecco to effect and maintain workers’ compensation insurance, with unlimited common law cover in respects of ACSOs, and with the Bank’s interest noted on the policy.

Although I initially was attracted to the argument, I have concluded, for one simple reason, that it does not succeed. Clause 6 of Schedule Two to the Agreement is in identical terms to clause 6 of Schedule Two to the Mutual Understanding. If clause 6 of Schedule Two to the Agreement could sit comfortably with clause 6.3 of the Agreement, then clause 6 of Schedule Two of the Mutual Understanding could do likewise. Moreover, Schedule Two of the Mutual Understanding did not purport to amend the Agreement itself, only the Schedule. I am satisfied that clause 6.3 of the Agreement was operative as at August 1997.

As indicated above, it was the Bank’s case that clause 6.3 required Adecco to take steps to ensure that the Bank was covered by insurance against claims by Adecco’s employees against the Bank, whether at common law or under workers’ compensation legislation. Whether the clause was effective to do that remains to be seen. The first matter to consider is of an evidentiary nature.

At the conclusion of the evidence, and before the commencement of addresses, attention was directed to some housekeeping matters. Although senior counsel for the Bank had earlier closed his case on the cross-claim, the transcript at 431 records him saying the following: “I may need to prove a negative, I think we could get agreement. Our case against Adecco is that they were contractually bound to get the Bank insured for workers’ compensation with common law extensions. My instructions are that did not happen, in other words they didn’t take it out. If my friend can admit that, it will save me having to call on notices to produce to show that there is no such policy.”

Immediately thereafter the court adjourned for the day. The following morning counsel for the parties to the first cross-claim returned to a discussion about what was called “a concession” to be made on the part of Adecco. After making some observations which did not, it seemed and seems to me, take the matter any further, counsel for Adecco said: “I’ve been asked to make the concession that the workers’ compensation insurance policy as issued does not record the Bank’s interest. I cannot make that concession because I have not seen the relevant document but I can make this concession: the only policy which Adecco relevantly obtained was workers’ compensation insurance .” (emphasis added)

A little later he repeated the concession in similar terms. It is clear from the concession that Adecco made no insurance arrangements with respect to common law liability. Counsel made no concession that the policy that was taken out failed to note the Bank’s interest. Senior counsel for the Bank then called for and tendered (exhibit 19) a notice to produce served on its behalf on Adecco and requiring production of: “1. All policies of insurance taken out by Adecco covering liability for inquires (sic) occurring in New South Wales to Adecco employees working on Commonwealth Bank of Australia premises for the period 31 April 1995 – 30 June 2000.” and other items and documents.

It seemed to be assumed that nothing was produced in response to the notice to produce but no explanation was forthcoming and no evidence to that effect was adduced. It also seemed to be assumed that, from the presumed non-production of the documents mentioned, it would be inferred that no such policy existed. I would not infer any such thing. Mere non-response to a notice to produce does not prove the non-existence of whatever is sought in the notice. It is not without significance that the notice is dated 28 February 2002. The trial of this matter commenced on 11 March 2002.

The defendant is thrown back upon the concession made by counsel for Adecco, so far as it goes. It is probably adequate for the Bank’s needs. Once the concession is made that Adecco effected only workers’ compensation insurance and not insurance against common law liability, it is necessary to move to a consideration of the meaning of clause 6.3 of the Agreement. The existence of workers’ compensation insurance (with or without the Bank’s interests being noted on the policy) is not material, because the present proceedings do not involve any consideration of any liability of the Bank under workers’ compensation legislation.

Construction of the clause is not straightforward. Strictly speaking, the clause requires only what it says: that Adecco effect (relevantly) insurance against common law liability, in its own name, “with the Bank’s interests noted thereon”. Senior counsel for the Bank was unable to provide any authority which clarified the effect of a notation on an insurance policy of the interest of a third party. It seems to me that, without more, such a notation would give the third party no rights under the policy. The third party would not thereby be made a party to the policy and would not be entitled to cover under it.

Senior counsel for the Bank referred me to s48 of the Insurance Contracts Act 1984 (Cth). S48 is in the following terms: “ Entitlement of named person to claim (1) Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person’s loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract. (2) Subject to the contract, a person who has such a right: (a) has, in relation to the person’s claim, the same obligations to the insurer as the person would have if he were the insured; and (b) may discharge the insured’s obligations in relation to the loss. (3) The insurer has the same defences to an action under this section as the insurer would have in an action by the insured.”

The purpose of the reference to s48 appeared to be to support the argument that the requirement in clause 6.3, that the Bank’s interest be noted on the policy was, and was intended to be, a requirement in terms of s48, that the Bank be noted on the policy “as a person to whom the insurance cover provided by the contract extends”.

Senior counsel did not then allude to s9, which excludes from the operation of the Act contracts: “entered into … for the purposes of a law (including a law of a State or Territory) that relates to workers’ compensation.”

Since no insurance against common law liability was effected by Adecco, this argument is hypothetical. However, if Adecco had effected such insurance, the contract of insurance would have been a contract entered into for the purposes of a (NSW) law relating to workers’ compensation. That is because by s155 of the Workers Compensation Act 1987 (NSW) an employer is obliged to obtain and maintain a policy of insurance in respect of both workers’ compensation liability and common law liability. I have not overlooked that s155 is directed to the liability of an employer, and that, by reason of the Agreement between the parties, Adecco was to be regarded (for the purposes of the Agreement) as the employer. That Agreement could not otherwise influence the proper determination of the employment relationship of the plaintiff either to the Bank or to Adecco: that is, for example, as between the Bank and the plaintiff. The Agreement bound only Adecco and the Bank. On one view of clause 6.3, the insurance envisaged was not limited to employer’s liability, but extends to general third party liability at common law, including liability incurred as, for example, an occupier of premises.

The drafting of clause 6.3 is unfortunate. But one thing is reasonably clear: what the parties to the agreement intended was that insurance would be effected that would comply with the obligation imposed by s155 of the Workers Compensation Act ; it is a short step then to interpret the requirement that the Bank’s interest be noted as intended to extend the cover to the Bank.

If clause 6.3 were to be interpreted as requiring Adecco to do no more than note the Bank’s interest on the policy it would be pointless so far as the Bank was concerned. While I am satisfied that the reliance placed upon s48 of the Insurance Contracts Act was misconceived, I am nevertheless satisfied that the clause was intended by both parties to impose upon Adecco the obligation to effect and maintain insurance that would indemnify the Bank against in respect of any common law liability that might be found against it.

I am satisfied that what the parties intended by clause 6.3 was that Adecco was required to effect relevant insurance with the Bank noted on the policy as a person to whom the insurance cover provided by the contract extends. That would give the Bank the right to indemnity under the policy against its liability to the plaintiff.

Counsel for Adecco also argued that the requirement that Adecco take out insurance against workers’ compensation liability and note the interest of the Bank thereon could be explained as a protective measure by the Bank against the possibility that, contrary to its own position, it be found to be an employer. I do not accept this. Merely noting the Bank’s interest would not give that protection; for the notation of the Bank’s interest on the policy to afford any protection to the Bank it would be necessary that a notation be a notation of the kind envisaged in s48.

The Bank has established that Adecco was in breach of the clause, at least so far as effecting insurance against common law liability is concerned. The breach has the effect that the Bank is uninsured in respect of its liability to the plaintiff. The Bank is entitled to recover damages against Adecco. Those damages cannot be quantified until the full extent of the plaintiff’s claim against the Bank is ascertained. The Bank is therefore entitled to succeed on the first cross-claim.

Counsel further argued that clause 6.4 is an indicator that the parties intended that the Bank would be responsible for effecting insurance. I reject this proposition also. In my opinion clause 6.4 is directed to insurance cover in respect of any tort or other wrong committed by ACSOs. This is quite different from effecting insurance to protect the Bank against any action against it by ACSOs. Another argument put on behalf of Adecco was that the words “with the Bank’s interests noted thereon” appearing as they do, in parentheses, immediately following the requirement that Adecco effect and maintain workers’ compensation insurance, but not being repeated when the clause deals with the requirement that Adecco effect and maintain insurance against common law liability indicates that the intention was that the Bank’s interest be noted only on the policy concerning workers’ compensation liability and not a policy concerning common law liability. I reject this also. While the clause is not a masterpiece of the draftsperson’s art, it is quite clear that the intention is that the Bank’s interest be noted on whatever insurance policy is taken out.

It is necessary to deal, although briefly, with other matters pleaded in the cross-claim. At paragraph 11 it is asserted on behalf of the Bank that the plaintiff’s injuries were caused by breach of clauses 3.1 and 6.1 of the Agreement. Clause 3.1 is the clause imposing on Adecco the responsibility for the training of applicants and candidates to work as ACSOs; clause 6.1 is the clause providing that Adecco is responsible for compliance with the provisions of all laws, awards and industrial agreements relating to ACSOs’ conditions of employment. Paragraph 11 of the cross-claim is particularised by reference to the particulars of negligence subscribed to paragraph 7 of the cross-claim, which also incorporates the plaintiff’s particularisation of negligence against the Bank. Those particulars could not remotely support an asserted breach of either clause 3.1 or clause 6.1. No separate argument was addressed to this and it is only necessary to note that it is unsustainable. Further, no evidence was adduced to suggest that the plaintiff’s injury occurred as a result of inadequate training or non-compliance with any law, award or industrial agreement relating to ACSOs’ conditions of employment.

In another plea, it is alleged on behalf of the Bank that the Agreement contained terms that Adecco would, in recruiting employees to be supplied to the Bank, undertake an evaluation of the individuals, including an evaluation of their personal character, medical suitability, career experience and that their career histories would be checked, that they would be interviewed in depth, their referees ascertained and their training confirmed. In paragraph 16 it is asserted that Adecco breached the contract by failing adequately to follow the recruitment process specified in the contract. This plea was particularised as failure or failure adequately to evaluate the plaintiff’s medical suitability, adequately to check the plaintiff’s career experience, or to make adequate reference checks. Again, no evidence was called to support this claim and no argument was addressed to it. It is rejected.

For the reasons I have given the Bank succeeds on the first cross-claim. the second cross-claim: Adecco v Commercial Union

By the second cross-claim Adecco pleads that it had entered into a contract of insurance with Commercial Union which was in effect as at 28 August 1997; that by the policy of insurance that Commercial Union is liable to indemnify it (Adecco) in respect of its liability to the plaintiff under workers’ compensation legislation; that under the policy Commercial Union is liable to indemnify it (Adecco) in relation to any liability it has to the Bank consequent upon determination of the first cross-claim; that Commercial Union has failed to indemnify it (Adecco) in relation to that claim.

I pause here to note that the policy of insurance which is asserted in the second cross-claim to be in existence was not in evidence, although there was a good deal of evidence concerning the statutory requirements of such a policy. Nor was there evidence adduced of a claim being made upon the policy of insurance in respect of the Bank’s claim against Adecco, nor of any refusal or failure on the part of Commercial Union to indemnify Adecco. I pass over these evidentiary matters for two reasons: no issue as to the absence of evidence was taken on behalf of Commercial Union, and the facts asserted in the second cross-claim appear to have been accepted as accurately stated; and because of the view I have come to as to the substantive merits of the second cross-claim, assuming the existence of the relevant facts.

The response of Commercial Union to the second cross-claim is this. It accepts its liability to indemnify Adecco in relation to workers’ compensation payments to be made to or on behalf of the plaintiff. Indeed, as the reasons for judgment in relation to the plaintiff’s claim against the Bank are concerned, it can be seen that very substantial amounts have been paid pursuant to that obligation.

The real issue between Adecco and Commercial Union is whether Commercial Union is bound to indemnify Adecco in relation to any verdict against it in relation to the Bank’s claim in contract against Adecco.

It is (even in the absence of the wording of the policy) quite apparent that the policy of insurance is a policy of insurance covering Adecco against its liability under the Workers Compensation Act. The verdict against Adecco on the first cross-claim is not a verdict relating to the Workers Compensation Act, but arising from its breach of contract to seek insurance to cover the Bank. The policy does not extend to covering Adecco in that respect.

This is the view to which I have come unaided by authority. There is authority to support precisely that proposition: Nigal Watts Fashion Agency Pty Ltd v GIA General Ltd NSW Court of Appeal, 22 December 1994, unreported. In that case an employee was injured while on leasehold premises. In the District Court he sued the lessor and was successful. By third party notice the lessor claimed indemnity against the employer. In doing so the lessor relied upon an indemnity clause in a lease to which the employer and the lessor were parties. The lessor succeeded in obtaining indemnity from the employer.

In the Court of Appeal the employer argued that the workers’ compensation policy covered it against liability to the lessor. The Court of Appeal unanimously rejected the argument. Kirby P (as his Honour then was) wrote: “This claim must be rejected. The phrase in the policy is of long standing. This is plain. It is to provide an indemnity to an employer for common law liability to a worker qua worker. It is not to provide indemnity to the employer in respect of every other way in which the employer might be liable to other persons, as by a promise in a contract of lease. The judgment against the employer as third party rested entirely upon the employer’s contractual liability under the lease. It was based on the exceptional provision of that document. The workers’ compensation policy issued by the insurer to the employer did not respond to such a liability.”

Mahoney JA also held that the liability found against the employer to the lessor was not liability for injury within the meaning of the Workers Compensation Act, which would have been covered by the policy, but the liability arising under the indemnity in the lease.

Handley JA agreed with both Kirby P and Mahoney JA on this issue.

Counsel for Adecco recognised the force of Nigel Watts and made a formal submission that it was not correctly decided. I note that submission and reject it.

Both independently of, and in the light of Nigel Watts I conclude that the second cross-claim must be dismissed.

I propose to make orders in accordance with these findings of fact and conclusions. That cannot be done until the parties have attended to various matters to which reference has been made. It will be necessary for the parties to bring in short minutes of orders.