Kirtland v the Commonwealth Bank of Australia No. Scgrg-88-2784 Judgment No. S4294

[1993] SASC 4294

DARYL GRANT KIRTLAND
v
THE COMMONWEALTH BANK OF AUSTRALIA

The plaintiff in this action was employed by the Commonwealth Bank of Australia (“the defendant”) from lst March, 1971 to lst May, 1989.  For some time and in particular on 30th November, 1987 and the 17th March, 1988, the plaintiff was the full-time supervisor of the defendant’s Clearview Service Centre.  On each of those occasions an armed hold-up occurred at the Clearview Service Centre, whilst the plaintiff was present in the premises.

In these proceedings, the plaintiff alleges that each of the hold-ups occurred as a result of negligence of the defendant.  It is alleged that there was an implied term of the contract of employment, between the plaintiff and the defendant, that the defendant would provide the plaintiff with a safe place of work.  It is further alleged that the defendant has breached that implied term, by failing to provide a safe place of work on each of the occasions of the armed hold-ups.

The plaintiff further claims that, as a result of the defendant’s negligence and/or breach of contract, the plaintiff has suffered an adverse psychological or psychiatric disorder as a result of the two incidents and, in particular, a post-traumatic stress-disorder and major depressive disorders.

I will turn now to consider the circumstances, in which the plaintiff was at the Clearview Service Centre, on each occasion.

The plaintiff was born in Adelaide on 4th April, 1952.  He was the second eldest of seven children, four boys and three girls.  He acknowledged that both his parents were caring and supportative.  His father, who worked with the Railways for 45 years, had not had the opportunity of going to a private school.  He considered that it was important that the children should have a good education and, therefore, sent all of his children to private schools.  The plaintiffs mother remained at home until the youngest of the children entered high school, after which she took part-time work as a clerk at the Queen Victoria Hospital.

The plaintiff, himself, went to Northfield Primary School up to Grade 4.  From Grade 5 onwards, he attended St. Pauls College at Gilles Plains.  He enjoyed school and achieved good results.  For Year 10, being his intermediate, he received two A’s, five B’s and a C, as a result of which he obtained a scholarship for two years.  He obtained good results in Year 11 but for some reason completed his final year of schooling at the Adelaide Boys High School.  He again obtained good results but the results were not good enough to obtain a university scholarship where he wanted to study to become a meteorologist.  His parents were unable to pay for him to go to the university.

In September 1970, he had taken an entrance exam for the Commonwealth Bank.  In late 1970, he was advised that there would be a position available for him at the bank as from 1st March, 1971.

After finishing school and up to the time of commencing work with the Commonwealth Bank, the plaintiff worked as a process worker at Peters Icecream.  He left that job on the Friday, before commencing with the Bank on the following Monday.

The plaintiffs first job was in the Bank’s Safe Custody Section, in the basement of the premises at 96 King William Street, Adelaide.  He worked there for three months, before being transferred to the cheque book library within the Electronic Data Processing (E.D. P.) Section.  He completed his probationary period with the Bank in September 1971 and received a merit award.

In February 1972, he commenced an accountancy course at the South Australian Institute of Technology.  That entailed attending lectures three nights per week, from 5.30 p.m. to 9.00 p.m. He was transferred from the E.D.P. Section to the Blair Athol Branch in March 1972.  This made the arrangements to pursue the accounting course difficult, but he continued with it.

In June of that year, as the plaintiff said, his “number came up in the National Service Ballot.” He underwent the medical examination later that month, which he passed.  He then underwent a ten week basic training course at Pukapunynal.  Whilst doing the basic training course, he was invited to undertake an Officer’s Training Course.  He declined that offer, because he understood that it meant that he would have to make the army his career.  At that time he believed his career was in banking.

Following his basic training, the plaintiff did further training at an artillery school at North Shore, Sydney and then joined another unit based at Woodside.

In December 1972, with the change of government, the plaintiff had the option to leave the army at that time.  He was informed, however, that, if he served the remainder of his time in the army, which was a further 18 months, he would be eligible to receive a War Service Loan of $15,000.00 at an interest rate of 3 and 3/4 per cent.  He therefore decided to remain in the army, to qualify for such a loan.

In February 1973, however, he was contacted by the defendant and, as a result of discussions which took place, he obtained his discharge from the army and rejoined the bank.  He commenced as a junior teller at the Elizabeth North Branch, in March 1973.  He said that he thoroughly enjoyed his time at the Elizabeth North Branch.  He described the accountant, under whom he worked, as “a very good operator”.  He said:-

“He taught me a lot about the importance of working as a team in any branch situation.”

Whilst working at the Elizabeth North Branch, the plaintiff received two further merit awards, and at the end of 1974, he was promoted to a position of Grade 1 Clerk.  He described that promotion as “a big step for me.”

In December 1972, he met his wife, Mary Jo.  They became engaged in December 1973.  In April 1974, they purchased a house at Ridgehaven for $22,950.00, of which they borrowed $19,000.00 from the defendant at a concessional staff rate of interest.  They then rented out the house, until they married in September 1974.

The plaintiff said that he was a very ambitious person, having a goal of reaching managerial status.  He understood that it would be advantageous, to his future career, to volunteer to undertake country duty.  He, therefore, applied to be transferred to the Millicent Branch.  That occurred in March 1976.  At the Millicent Branch, he became the Loans Assistant.  This was the first occasion on which he had been involved in loans work and he said that he found this work very interesting.  It certainly seems that the tasks, which he had to perform, substantially increased his experience.

After leaving the army, Mr. Kirtland did not at any stage resume his accountancy studies.  The explanation, which he gave for that, was that he was informed, when he resumed with the Bank that obtaining a higher qualification would not affect his progress within the Bank.  He understood, from what he was told, that there was a yearly review of performance by the Bank and that progress depended on these reports.

The plaintiff said that, after their movement to Millicent, his wife was unable to obtain employment, as a Dental Nurse, and she found it very boring.  Mrs. Kirtland said that she worked on call and holidays for the dental surgery, but that was all.  At that time, Mr. and Mrs. Kirtland were looking to commence a family, but having difficulty in doing so. They sought medical advice and underwent various tests.  The specialist, at Mount Gambier referred them to the In Vitro Fertilisation Program at the Queen Elizabeth Hospital in Adelaide.

It seems that the plaintiff, himself, found Millicent to his liking.  He had had a life-long interest and hobby in meteorology.  In 1976, he developed, and submitted to the Bureau Of Meteorology, an objective aid to the prediction of maximum temperatures.  Apparently this was quite highly regarded in the Bureau’s head office.  He also attended at the Mount Gambier office of the Bureau quite often.  He was invited to undertake an Observer’s Course with the Bureau, at that time.  The plaintiff said that he had the educational qualifications for the course, but it would involve him going to Melbourne for a twelve month course.  At that time, he was well settled in the Bank and he did not accept the offer.

When the plaintiff was transferred to Millicent, it was anticipated that he would remain there for at least three years.  Shortly before Christmas 1976, he applied for a transfer back to the metropolitan area, because his wife had attempted to take her life.

In March 1973, the plaintiffs father-in-law, who was living in Adelaide, had a heart attack and was ill for a long period.  Mrs. Kirtland, therefore, returned to Adelaide to live, to assist her mother.  The plaintiff remained at Millicent for some time.

The plaintiff was eventually transferred back to Adelaide, in July 1977.  He was posted to the Hutt Street Branch, as a Loans Assistant.  He remained at the Hutt Street Branch, until January 1978.  He was then transferred from that Branch at his own request.  He was unable to recall whether he had considered the appointment to the Hutt Street Branch was a permanent posting, but did acknowledge that the transfer was at his own request.  Initially when asked for the reason for the request, he said:-

“Because of my difficulty in travelling to the city each day.”

When it was suggested to him that he in fact gave another reason, he agreed and gave details of another reason, for which he had sought the transfer.  When it was suggested that he had in fact given the Bank yet another reason for seeking the transfer, he indicated that he could not recall.  Mr. Lunn for the defendant at page 316 of the transcript, suggested details of the other reason and asked:-

“Q.    Do you recollect saying anything like that to the Bank.
A.     Yes, I do now you have mentioned it.”

The plaintiff acknowledged that that interview had occurred with a Mr. Stevens.  It was then suggested to him that he had told Mr. Stevens, that he had also sought medical advice regarding a nervous condition.  Mr. Kirtland indicated that he could not remember that.  He “had even been to a hypnotherapist with regard to a nervous condition and constant diarrhoea without apparent success.”

Mr. Kirtland conceded to Mr. Lunn that, although he could not recollect having told Mr. Stevens of these matters at that time, the fact was that he had seen a hypnotherapist and was having the problems mentioned.  He also conceded that he had not told Mr. Stevens directly of suffering any problem of agoraphobia at that time.

It is appropriate that I should comment, at this stage, that there was no report, or complaint, in the evidence of Mr. or Mrs. Kirtland, as to their lives to that time being affected, or influenced, by the plaintiff suffering from agoraphobia, or, indeed any condition which had symptoms resembling those of agoraphobia.  At no time during the course of this case, was any attempt made to explain the circumstances, in which the condition of agoraphobia had come to be recognised, nor as to whether any particular incident, or course of behaviour, had been attributed as the cause of it.

The existence of the condition, some detail of the treatment of it and some details of its effect on the plaintiffs lifestyle, are contained in the reports of Dr. Schembri and Professor McFarlane, which were tendered as part of the exhibit ‘PI’.  Dr. Schembri stated that Mr. Kirtland gave a history of having suffered from symptoms of anxiety and depression between 1977 and 1982.  Professor McFarlane stated that Mr. Kirtland had suffered from agoraphobia since the mid-1970’s.

Mr. Kirtland worked at the Elizabeth Branch from January 1978 until 1982.  During that time, he was the Loans Officer at that Branch.  He also received promotion to AM 1, which is the lowest level of the Assistant Managerial Status.  He was pleased with his promotion, and said that he got satisfaction from and commendation for, the work which he did in reducing the arrears on personal loans at that Branch, during the time that he worked there.  He said however:-

“My main concern was the constant problem with my health.  That was because of suffering from agoraphobia.”

He went on to describe its effect.  He said:-

“Well, I had it for most of the time, but I was able to control it to some degree.  As I say, I did not like to be involved in crowds or addressing staff training sessions and wherever possible, I will try not to attend those session.  So it did restrict me in that way.  And also, you know, I would not go into the city at all.
........
Yes, I could not catch public transport.  That was extremely difficult.
........
Yes.  In lifts, I certainly would.  Still do today.  And also when involved in meetings where there is some - the more people there, the more upset and the more aggravated the condition would become.”

He also said that he had trouble travelling in heavy traffic.  He also said that the condition was less significant at some times compared with others.

“Well, sometimes it was less significant than at other times.  Naturally, because of the symptoms, I tended to avoid situations would bring on these panic and anxiety attacks.  You know, it would sometimes, you know, restrict me from going in to town and even attending large shopping centres.
........

A...... Well, it severely curtailed the social activities.  I would not go - you know, would not attend any pictures or basically any place from which escape may prove difficult.  In April 1978 when my father-in-law did die, because of my condition I was unable to sit with my wife at the front of the church.  I sat at the rear of the church and that was very upsetting for me, because I was not able to be around at her time of need.

Q...... You mentioned that you saw Dr. Bowman, psychiatrist, with respect to that, is there anything else you did about your agoraphobia at that stage.

A...... I remember going and visiting a hypnotherapist.  That did not prove successful.  Other than visiting doctors and Dr. Bowman, that was it.”

Mr. Kirtland said that he mentioned the condition to his manager, in September, 1982, when discussing Mr. Kirtland’s yearly report.  He then applied for a transfer from Elizabeth to a smaller branch.  In one section of that application the manager put:-

“Mr.  Kirtland suffers from a nervous disorder which manifests itself when in crowds and when travelling.  A transfer to a smaller branch is recommended.”

As a result of that application, Mr. Kirtland was transferred to the Greenacres Branch, as a Loans Officer.  That transfer Was effective from January 1983.  At Greenacres, Mr. Kirtland was the only Loans Officer.  That Branch at the time, had a very high rate of arrears on personal loan.  It was Mr. Kirtland’s task to improve that situation.  He applied himself to the task and was able to reduce the number of outstanding accounts to a very significant degree.  Obviously part of the plaintiffs strategy was to be much stricter in loan approval.  The plaintiff learned, in May of that year, therefore, that because of the low number of new loan approvals, the Loans Officer’s job would be reclassified and it would be necessary for Mr. Kirtland to be transferred to another Branch.  He was very disappointed with this information, because, in fact, during his time at the Greenacres Branch, he felt he had improved considerably in relation to his agoraphobic condition.

In June 1984, he was transferred to the Modbury Branch, as a Loans Officer.  That Branch was a bigger Branch having a staff of 20 to 22.  He said that this increased his symptoms, but not to anywhere near the extent of the symptoms he had suffered, whilst working at Elizabeth.

In 1986 he received a further promotion to that of AM 2 status and was appointed Officer in Charge of the Clearview Service Centre.  The Clearview Service Centre is what could be called a sub-branch of the Enfield Branch of the Bank.  It does not involve itself in any lending activity.  The plaintiff was responsible for the day-to-day running of the Service Centre, but in turn was responsible to the accountant and manager at the Enfield Branch.

The plaintiff was responsible for a total of five staff, on everyday except Tuesday, when the staff number was four.  The Service Centre is located at 240 Hampstead Road Clearview.  It is part of a small group of shops, which comprise a one person supermarket, a second hand book store, a chemist, a butcher and a delicatessen.  When the plaintiff moved to the Clearview Service Centre in June 1986, he described the security as being very basic.  There was a security camera, which had to be manually operated.  There were two types of buttons to operate the camera.  The first was a suspicion button, which could be activated to run about 14 frames of film, if there was reason to suspect anybody in the banking chamber.  The other activation buttons caused the camera to operate continuously, but were only to be pressed in the course of a robbery.  Mr. Kirtland identified the positions of the various activation buttons at that time.  All these points were on the ground floor of the building, which was a two storey building.

There was also a security device connected to the computer system.  There was one keyboard, which operated that system and it was located in the tellers’ boxes.  It involved typing a short one word message, which was then relayed to the E.D.P. Section.       They would then contact the police.  This command system was installed at all branches in the late 1970’s, but there were limitations to the circumstances in which it could be used.

The upstairs portion of the premises comprised a male and female toilet section, a reasonably large lunch room and the general landing area at the top of the stairs.  There were no activation points and not telephone on that level.  There was a general policy that, whilst there were customers in the banking chamber, there would be as many as possible of the staff in that area.  The staff used to go to the lunch room for morning tea from 9.30 a.m. to 10.30 a.m. approximately, and they took lunch commencing at 11.30 a.m. and going through until 2.30 p.m. It was Mr. Kirtland’s estimate that there would be someone in the lunch room for approximately 60 per cent of the normal working day.

When the staff at the Clearview Service Centre had completed their tasks at that location, they were required to return to the Enfield Branch and remain and assist at that Branch, until the work at that Branch was completed each day.  It seems that there was some degree of friction, or ill-feeling, about this, because of what was perceived as a lack of efficiency at the Enfield Branch.  Also at about this time, it was decided that all accounts and savings accounts, key card savings accounts, society accounts etcetera, would be transferred to the Enfield Branch.  Certain of these transfers would be effected by using the computer system, but in other cases it was necessary for this work to be done on a manual basis and it involved contacting the customers, wherever they may be in Australia, to arrange for the account to be transferred.  This had to be achieved by the end of February 1987.  This involved additional work.  Despite the fact that Mr. Kirtland stated that they did not receive any assistance from the Enfield Branch, the task was completed on time.  Mr. Kirtland indicated that this was a challenge, which he enjoyed.  He indicated, that during the time that he was at Clearview up to the time of the first robbery, he had no health problems and did not have to take any medication whatsoever.

Mr. Kirtland raised the matter of the staffing level and the problems, which he saw associated with it, with the management at Enfield on various occasions at supervisors, meetings.  Nothing eventuated from these discussions, however, and he, therefore, made a formal complaint to the personnel department, in August 1987.

In the first half of 1987, there was some reduction in the workload at the Clearview Service Centre, as a result of an encoder being installed at the Enfield Branch.  This equipment sorts cheques deposited and meant that the Clearview Branch did not have to process cheques and trading bank deposits at the Clearview Branch.  However, a new system was introduced whereby, at 2.30 p.m. each day, one of the members of staff from Clearview had to deliver the work to the Enfield Branch.  That officer then remained at the Enfield Branch for the rest of the day.  At 4.00 p.m., a further staff member delivered the remainder of the work to the Enfield Branch and, again, remained at the Enfield Branch for the rest of that day.

This of course meant that, during the afternoon, the number of staff members in the banking chamber at the Clearview Service Centre was further reduced.  In Mr. Kirtland’s opinion, this added to the security risk at the Service Centre.

In August 1987, the Clearview Service Centre was ordered to arrange for the transfer of term deposit holdings from the Service Centre to Enfield.  This involved the manual transfer of in excess of 300 term deposits.  This again involved extra work.  Again, the work was completed within a reasonable time.

On 18th August, 1987, there were only three staff at the Clearview Service Centre.  It was an extremely busy day and Mr. Kirtland sought relief staff from the accountant at the Enfield Branch.  Mr. Kirtland was advised that this could not be done.  They were forced, therefore, to operate at time with only two members in the banking chamber throughout that day.  At the end of that day, Mr. Kirtland went to the Enfield Branch and perused the attendance book.   In his opinion, they had a surplus of staff for that day and should have been in a position to provide relief staff.  He, therefore, decided to raise the matter with the personnel department.  On 24th August, he had an appointment with Mr. Bob Martin and Mr. Jeff Brett in the personnel department.  He stated that 95 per cent of the conversation centred around the inadequate staffing situation, at the Clearview Service Centre, and how often they were under staffed.  He stated, however, that he did mention briefly the matter of security and general security equipment at the Service Centre.  Mr. Kirtland indicated that he was told that it was his responsibility to talk the matter over with the management at Enfield.  He was advised to do this and to contact the personnel department, once he had had the discussion with the management of the Branch.  He did have the discussion with the management at a supervisors’ meeting that evening.  Mr. Kirtland indicated that, after that discussion, he was confident that the staffing situation would improve.  At the interview with Mr. Brett and Mr. Martin, Mr. Kirtland was asked to consider whether he would remain at the Clearview Branch and to report back as to what he decided.  He indicated that he gave the matter considerable thought.  He decided to remain at the Clearview Service Centre.

Mr. Brett gave evidence.  He is now the Assistant Manager of Branches in the north-eastern region.  He joined the Bank in 1967 and worked at various Branches, rising to the position of accountant at the Kilkenny Branch in 1985.  In July, 1986, he transferred to the personnel department, as Assistant Manager, Staff Services.  He indicated that that job mainly involved staffing matters such as employment, disciplinary action and control of the actual personnel section itself.  Staffing for the branches was not part of that job.  It was also part of his function to attend at branches, following any hold-up, and to speak with the staff concerned.

Mr. Brett stated that he had dealings with the plaintiff, during the course of his time in the personnel department.  A file was kept in the personnel department and various documents were created, in the normal course of the business of the department.  Mr. Brett acknowledged that he did not have sufficient recollection of those events to recall them in any detail, without reference to the various notes made.  It was agreed, therefore, that he should have access to the portions of the file which he had brought to court for that purpose.  Document 139 was notes of the interview of Mr. Brett and Mr. Martin with the plaintiff on 24th August, 1987.  The diary note prepared by Mr. Martin sets out in detail the nature of the staffing problem and the background to it.  It concludes:-

“Mr.  Kirtland left on the basis that he had fulfilled his responsibilities as a classified officer in reporting what he considered to be a problem to his point of control and will endeavour to negotiate a logical compromise with Mr. Damato.  Should he be unsuccessful, he has been asked to contact us again.”

There is then a hand written endorsement of Mr. Martin, dated 27th August, which reads:-

“Mr.  Kirtland rang, he has been able to establish a compromise with his Branch Executive re staffing his Service Centre.”

Of significance, there is no reference, in that note, to any mention of the matter of security.  Mr. Brett did acknowledge, however, that a comment had been passed by Mr. Kirtland about security.  He was asked by Mr. Lunn:

“Q.    What was said as far as you can recollect.

A...... I cannot recall.  It was a peripheral comment; it was not the issue that he wished to discuss.”

This matter was not taken up on behalf of the plaintiff, in cross-examination.  I find, therefore, that Mr. Kirtland made same passing reference to security at the interview, but did not make any specific complaint,’ nor seek any specific action by the Bank.

Mr. Kirtland said that fond some six weeks, or so, following the interview with Messrs Martin and Brett and the subsequent discussion with the Branch, there was an improvement in relations between the Branch and the Service Centre.  Relief staff were provided, whenever possible.  The situation changed in October of that year.  There was a direction that all bonds held for safe custody, at Branches of the Commonwealth Bank, were to be transferred to the Reserve Bank as inscribed stock.  All bond applications, for both the Service Centre and the Enfield Branch, were handled by the Service Centre.  The Service Centre, therefore, had to send applications to all customers to arrange for these transfers.  Mr. Kirtland stated that this lead to a considerable workload increase and that, on most occasions, he was not able to secure extra staff.  Once again, however, Mr. Kirtland said that he found this work a challenge and that it did not affect his health.  There is nothing in the evidence to suggest that the situation is other than as Mr. Kirtland represented it, at that time.

It was against this background that the first hold-up occurred, at approximately 2.20 p.m. on Monday 30th November, 1987.  At that time, the full staff quota of five was present at the Clearview Service Centre.  However, there were only three staff members in the banking chamber itself.  The plaintiff was in the lunch room on the first floor, and another male member of the staff was at the toilet, which is also located on the first floor.  The plaintiff was not able to see any of the activity taking place in the banking chamber, but was able to hear what was going on.  It is accepted by the parties that two men, each armed with a firearm, entered the customers’ portion of the bank.  At that time, there were approximately six customers in that area.  The men ordered the customers and the staff, other than the person in the tellers box, to lie on the floor.  They shouted their instructions roughly and with the obvious intention of intimidating the staff and customers. subsequently, one of the men jumped over the teller’s counter, whilst the other remained in the customer area.  At some stage, during the process, a display stand with brochures was knocked over.  Having obtained an amount of money, the robber jumped back over the counter.  Both robbers then left the Bank, making threats as they did so, as to what would happen, if anybody attempted to follow them, or raise the alarm.  It is estimated that this whole process took two minutes, or less.

Throughout the incident, the plaintiff was in the lunch room on the first floor.  He was unable to ascertain what was taking place, save to hear the various noises, including a small child screaming.

After the robbers left, the plaintiff came downstairs.  He took such actions as he understood to be appropriate, according to banking procedures and manuals.  He locked the front door, told one of the staff to check the condition of the customers and he then telephoned head office.

Mr. Kirtland alleges that the hold-up occurred because of negligence on the part of the Bank.  The particulars of negligence alleged are set out in paragraph 5A of the statement of claim.  That paragraph is divided into subparagraphs (a) to (s).

Paragraph (a) alleges that the Bank failed to act upon complaints about security by the plaintiff, in his interview with Messrs Martin and Brett.  I am satisfied that no specific complaint was made.  In any event, the Service Centre had its full complement of staff present in the premises, if not in the banking chamber, at the time when the hold-up occurred.

(b)     alleges that the buttons to operate the security camera could not be operated by bank staff, without being observed by the bandits.  The plaintiff acknowledged that there was a button in the teller’s box and that, if anybody had been standing in the teller’s box when the bandits entered they should have been able to operate the button, without being seen.  No explanation was offered, as to why that had not happened.  In any event, even had it occurred, it would not have prevented the hold-up, it would have merely provided a possible means of identifying the robbers, if subsequently apprehended.

(c)     and (d) are further allegations with regard to security cameras.  Again, there cannot be any suggestion that had the matters raised been in place, that they would have prevented the hold-up occurring.

(e)     alleges a failure to have adequate alarm systems installed.  No particular evidence was given in relation to this point, but, in any event, the robbery took such a short time that any such device would not have had any effect on the circumstances.

(f)     alleges failure to have foot switches, or note switches, installed.  Mr. Scott, the Federal Secretary of the Commonwealth Bank Officer’s Association, gave evidence on behalf of the plaintiff.  He has been involved with the Commonwealth Bank Joint Security Committee, which is a Committee of the Commonwealth Bank, and the Standing Committee On Bank Security, which is a National Committee, involving banks and police forces and others Australia wide.  In that role, he is familiar with and has been involved in discussions about bank security and security devices over many years.  I accept Mr. Scott as a competent and reliable witness.  He said that foot switches and note switches had been used for some time by banks, but they had been abandoned, some time prior to this robbery, because of the number of false alarms resulting from them.  I do not consider therefore, that not having such devices installed amounted to negligence on the part of the Bank.  Again, in any event, had they been installed, they would not have prevented the incident from occurring.

(g)     alleges that the defendant was negligent in removing the note switches and goes on to allege that a command system on the computer had been installed “which required the teller to activate three buttons on the computer, a movement which could easily be detected by any robber in the banking chamber.”  The first part of that paragraph is answered by my previous remarks.  So far as the computer system was concerned, Mr. Scott indicated that that system was in place Australia wide at that time.  It was, at that time, the current state of the art system used Australia wide.  There was no evidence produced on behalf of the plaintiff, which would indicate any other form of computer system, which was available at that time.  Again, in any event, had there been any such system, it would not have prevented the robbery from taking place.

(h)     alleges that the Bank was negligent in failing to install bullet resistant barriers (B.R.B.), or rising (pop-up) security screens (R.S.S.). Mr. Scott indicated that the R.S.S. are only installed at larger branches, where there is a larger staff of at least twelve, because it is necessary for several activating points to be activated at the same time.  On this basis, I do not consider that the defendant was negligent for not having installed R.S.S.

In relation to the installation of B.R.B., the Bank had some time early in the 1980’s recognised the need to install such devices.  It was effecting such a program, on a progressive basis, after negotiation with the union.  Although the Bank determined the order of priority for such installations it was clear from the evidence of Mr. Scott that, if necessary, the union could exert pressure and influence in relation to such matters.  In any event, at that time, the Bank were proceeding with the installation in Melbourne and Sydney, which were the prime areas for armed hold-ups.  To that time, there had only been one armed hold-up at a branch of the Commonwealth Bank in South Australia.

In my view, therefore, the Bank were not negligent in not having installed B.R.B. at the Clearview Service Centre at that time.

(j)     alleges negligence for having failed to fit to the windows signs saying “Time Locks Fitted”.  Such a sign would not, of course, have prevented the robbery from occurring and no evidence was before me, which would indicate that it would even act as a deterrent.

(k)     alleges negligence for having failed to install airlock doors to the entrance of the Bank.  No evidence was adduced to the feasibility of such doors being installed at this Branch, nor indeed, as to whether it was considered that such doors would act as a deterrent.

(l)     alleges negligence for having failed to install time lock drawers under the cash drawer in the teller’s box.  No evidence was adduced before me to demonstrate that the use of such drawers was current, at that time, nor, indeed, at the present time.  In any event, such devices would not have prevented the hold-up, but merely reduced the amount of money, which the robbers would have been able to steal.

(m)   suggests the installation, in the staff room, of a red light which could be activated in the event of a hold-up, to advise the staff in the staff room of the situation in the banking chamber and, thereby, enabling them to raise the alarm without the bandits knowledge.  In the present case, the staff in the staff room, namely the plaintiff, knew that the robbery was taking place.  The installation of the red light therefore would not have had any effect.

(n)     alleges that the defendant was negligent by placing the staff in danger, by having installed only warning, or alarm, devices which required deliberate activation by a staff member in the banking chamber, in full view of an armed bandit.  The evidence was that there were activation points in the teller’s boxes, which could be activated without being seen by someone in the customer section of the Bank.  In any event, that would have had no effect on the situation of the plaintiff in this case.

(o)    pleads the failure to provide the services of either an armed or unarmed uniform security guard at the Service Centre.  Mr. Scott gave evidence, that the matter of security guards, either armed or unarmed, was a matter which had been considered and discussed over many years between the banks and the unions.  The effect of his evidence was that, at that time, the understanding between the banks and the unions was that uniformed security guards would only be used as a temporary measure following any hold-up and pending the installation of other security devices, such as B.R.B. or R.S.S. The understanding was that after a second robbery at a branch a security guard would be put in place, automatically, pending the installation of the other security devices.  However, each instance should be assessed on its own merits.  MY understanding of this evidence is that, if on investigation, it was felt after one robbery that there was a need for a security guard to be in place, this should be arranged.  In the circumstances, therefore, I do not consider that the Bank was negligent, on this basis, prior to the first hold-up.

(p)     alleges that the Bank was negligent in failing to assess or failing to adequately assess, security at the Clearview Service Centre prior to the first hold-up.  There was no evidence adduced before me, upon which such a finding could be based.

(q), (r) and (s) are all general allegations that the Bank failed to adequately secure the premises and take precautions for the safety of its staff. once again, on the basis of the evidence before me, there was no evidence to support these contentions.

I find, therefore, in respect of the first hold-up the defendant was not negligent.

I turn now to consider the events between the time of the first robbery and the occurrence of the second robbery.  The story begins at the Clearview Service Centre, on the afternoon of the first hold-up.  The first ‘persons to arrive were the Enfield Manager, Mr Colbey, and his secretary.  The Clearview Service Centre was, of course, a sub agency of his branch, and it was appropriate that he should obtain first hand information about the hold-up.  However, apart from the fact that he attended, I was not provided with any information as to what he did, whilst he was at the branch on that day.

The second group of people to arrive were the police.  They investigated the circumstances of the hold-up, including the taking of the statements from the various employees, and presumably, customers.  The plaintiff, himself, was interviewed and gave a statement to a female police officer.  Apart from this, however, I do no have any detail as to the police activity on that day, nor, as to anything that subsequently flowed from it.  The men involved in the hold-up were subsequently apprehended by the police.

A little later, a group from the Banks Capital Office attended at the Clearview Service Centre.  That group included Mr. Jeff Brett, who was at that time the Assistant Manager Staff Services, Jo Cowan, the Occupational Health nurse, Mr Newland, one of the banks Regional Officers, and various relieving staff.  The relieving staff were, of course, to take over the normal banking operations from the normal staff at the Centre.  Jo Cowan was to consider and, if necessary, attend to the general well being of the staff.  Mr Newland was to attend to the supervision of the reconciliation of funds, when the police had completed their inspection of the premises and facilities.  Brett’s function was to overview the situation, from the point of view of the staff.  Brett denied that it was any part of his function to consider matters of security.  He did state that, if any staff member made any comment, or request, he would pass it on to the Administration Section at Head Office.  There was, therefore, no one from the bank, who attended at Clearview on the day of the hold-up, who had any function connected with a review of security, or any evaluation of the circumstances of the hold-up.

Mr Brett suggested that the matter of security was reviewed after any bank hold-up.  That had nothing to do with his function, or the department in which he worked.  His understanding was that this was done and supervised from Sydney.

On the day following the first hold-up, Mr Kirtland went to work, as usual, in the morning.  He had some apprehension, but resolved to continue.  He opened up the bank in the usual way and then summoned the other staff to enter.  Mr Brett and the relieving staff also attended on that day.  Apparently, in the course of the morning, Mr Brett interviewed the plaintiff.  In the course of their discussions, the plaintiff burst into tears.  As a result of this, Mr. Brett made arrangements for the plaintiff to be examined by Dr. Kobayashi, at the Flinders Medical Centre, the following day.  He then arranged for the plaintiff to go home for the rest of that day.

The following day, which was Wednesday, the plaintiff attended for interview with Dr. Kobayashi, and then returned to work for the rest of that day.  He also worked on the Thursday. on Friday, he again attended for interview with Dr. Kobayashi and then went to work.  During this first week following the hold-up, there were relieving staff at the branch, so that Mr. Kirtland was, in effect, working with the relieving the staff.

On the following Monday, Mr Kirtland again attended for examination with Dr Kobayashi.  By that time, he had improved to the stage where Dr Kobayashi did not consider it was necessary to have further consultations.  Mr Kirtland returned to his normal position at the Clearview Service Centre.

On that day, which was exactly one week after the hold-up, Mr. Brett again attended.  He talked with all the staff.  It would seem that members were contemplating seeking transfers to other branches, but Mr. Brett explained that the Bank’s policy was to discourage this.  The Bank felt it was better for the staff to stay together, but, he indicated that the Bank was not immovable on this point.  So far as Mr Kirtland, personally was concerned Mr. Brett left it with him to contact him, when he had had time to further consider the matter.  In fact, Mr Kirtland contacted him on the following Wednesday and advised that he was presently minded to stay at the Clearview Service Centre.  Mr Kirtland was, however, taking long service leave in the following January, and indicated that he would make a final decision following that leave.

Mr Kirtland remained at work up until the time of his leave.  He performed his normal work.  He indicated that the Bank was quite busy over that period.  Also, during that time, an Auditor from the Bank attended to reconstruct the financial position of the Bank, as at the time of the first hold-up.  That audit disclosed the position as it had been reported by Bank staff.

In January 1988, Mr Kirtland and his wife went to Sydney.  Mr. Kirtland was away from the bank on four weeks leave.  Following his return from leave, Mr Kirtland resumed his normal position.  He had some irritation, because of certain changes, which had been implemented through the Enfield Branch with the relieving supervisor, whilst Mr Kirtland was on leave.  In relation to the performance of his job, between his return from leave and the time of the second hold-up, Mr Kirtland said, at page 143 of the transcript,

“I believe I handled the job in a competent manner.  The past trauma was behind me”.

Mr Kevin Charles Scott, the Federal Secretary of the Commonwealth Bank Officer’s Association, gave evidence on behalf of the plaintiff.  The Commonwealth Bank Officer’s Association is one of the two unions, which cover employees in the finance sector.  Mr Scott was a Bank Officer for just over IS years.  From 1974 - 1984 he was the New South Wales Secretary of the Commonwealth Bank’s Association.  From 1984 ~ 1988, he was the Assistant Federal Secretary of the Commonwealth Bank Officer’s Association, and since then he has held his present position.  For the past 10 years, he has been a permanent member of the Commonwealth Bank Joint Security Committee.  Since 1975, he has regularly attended, either as an observer or as an alternate delegate, to the Standing Committee, on bank security.  He has been a permanent member of that organisation since 1988.  From this background he is aware of the activities of the Commonwealth Bank, in relation to security and procedures associated therewith.  He is also familiar with the considerations and deliberations of the banking industry, generally.  At page 427 of the transcript, he was asked whether there were any regular inspections of bank branches in connection with security., He firstly referred to Branch Inspectors and said-:

“They were also required to ..look at security, and give an assessment whether the security of the branch was adequate.  These days security and other matters are the responsibilities of the Regional Manager, and also of course the Branch Manager and the staff”.

He also stated that South Australia was no different from any other part of Australia, so far as this was concerned.

Mr Scott gave evidence, that the matter of security within Bank branches, from the point of view of staff safety, had been taken very seriously since the early 1970’s.  Following any hold-up, a bank is required to prepare a statistical sheet, which is lodged with the Joint Security Committee and becomes part of a review by that Committee.  In December 1980, the Standing Committee agreed on a set of guidelines, in relation to security matters.  One of those guidelines was that banks were to progressively install barriers in areas of risk and that the prioritising of risks was to be in the hands of the Bank.  Although Mr Scott did acknowledge that, if the occasion arose the union could exert pressure in that regard, it was generally accepted that New South Wales and Victoria were higher security risks than South Australia.  However, in about 1985, the Commonwealth Bank adopted a policy that all Service Centres were to have fixed barriers, or rising screens, depending on the size.  Evidence was also given that, because of operational aspects, rising screens would not be used in an establishment which had a staff of less than 12 people.  At page 442 of the transcript Mr Scott said:-

“Branches with a hold-up record of course, received top priority.  Naturally those with the greatest number of hold-ups came first.  But generally speaking, we had an understanding that where a Bank was subject to two violent hold-ups, as we term them, then a static guard would be placed in that branch until it was screened.  But we argued, an agreement was reached, that there could be one off situations, stand alone situations, where the hard policy did not apply”.

The understanding, which I gained from that evidence of Mr Scott and his evidence generally, was that, where an armed hold-up occurred, there would be some evaluation done.  Even if the hold-up was not the second at the particular branch, it maybe possible that a security guard would be put in place, until such time as some form of screening had been completed.  As a matter of common sense, any such evaluation could only be carried out, if some properly qualified person attended at the branch and made an assessment of all the essential details.

Mr Halliday, for the plaintiff, put to Mr Scott a general description of the circumstances and location of the branch at the time of the first hold-up and then asked whether, if following the first hold-up no modifications or alterations to the security arrangements were made, would that have been in compliance with the agreement between the bank and the union.  Mr Scott indicated that it would not have been in compliance with the agreement.  He went on to say:-

“What should have occurred was that immediate agreement be reached, or immediate decision be taken, to install barriers at the branch, and in the interim to provide a static guard for protection”.

There was no evidence produced, before me, to establish that there was any independent appraisal of the security situation, following the first hold-up.  Mr Kirtland gave evidence that there was not at any time, whilst he was present, during the whole of his period at the Clearview Service Centre, an appraisal by any bank representative.  Had there been any such assessment, it would have been a simple matter for the Bank to produce evidence of that.  Nothing was forthcoming in that regard.

The plaintiffs assertions, with regard to the basis for the allegation of negligence in respect of the second hold-up are as set out in paragraph 5B of the Statement of Claim.  In turn that paragraph adopts paragraphs (a) to (s) inclusive of paragraph 5A.  I have already dealt with those allegations in so far as they referred to the first hold-up.  I refer to and repeat what I had to say in respect of paragraphs (a) to (g), (j) to (n) and (q) to (s).

(h)     refers to the failure to install bullet resistant barriers, (o) refers to failure to provide the service of a uniformed security guard, and (p) refers to failure to assess or adequately assess, or review or adequately review the security at the Clearview Service Centre.  In my view these matters are established.  Apart from being non compliance with the agreement between the bank and the union, I consider that they constitute a failure by an employer to exercise reasonable care for the safety and security of its employees.

Paragraph 5B, also has three further particulars being, (t), (U), (v).

(t)     reads:

“Retained the plaintiff in his position at the Clearview Service Centre after the initial incident referred to in paragraph 3 herein, although it knew or reasonably to have known of the plaintiffs health and mental well being, and that it was unreasonable to retain him in this position;”

I do not consider that this has been established, or constitutes negligence on the part of the employer.

(u)     “Failed to heed or act upon complaints concerning the safety of the premises, made by the plaintiff and the other employees after the incident referred to in paragraph 3 herein.  After the first incident referred to paragraph 3 herein, the Manager of Enfield Branch who was responsible for the Clearview Service Centre complained to the Bank Management, and requested increased security at Clearview.  Other members of the banking staff made complaints to the defendant regarding the lack of security in the bank, however, nothing was done to act upon these complaints”;

Again I do not consider that this assertion of negligence has been established by the evidence.

(v)     “Failed to make any or any adequate review of security measures and practises after the incident referred to in paragraph 3, hereof.  In particular, failed to undertake the measures described in paragraph 5A (h), (o) hereof, or alternatively failed to undertake the measure described in paragraph 5A (o) until such time as the measure described in paragraph 5A (h) could be undertaken”.

I have, in effect, already found on that basis in relation to my findings in relation to the earlier paragraphs.

Accordingly, I consider the plaintiff is entitled to damages in respect of the injury loss and damages resulting from the second hold-up.

I turn now to deal with the quantum of this claim.  For a variety of reasons, this is a very difficult task.  Before embarking on the task, I consider that it is appropriate that I should indicate the problems, lest it should be necessary to review my judgment in another place.  Professor McFarlane gave evidence and his reports were tendered before me.  I am satisfied, on the basis of this evidence, that the plaintiff did, as a result of the second hold-up, suffer from a “post traumatic stress disorder” and, indeed, was continuing to suffer from that condition and that he had, since the second hold-up, suffered from episodes of major depression.  Prior to the hold-ups, the plaintiff had suffered from agoraphobia in relation to which condition he had been treated by Dr. Milton-Beaumont, on reference from his general practitioner, Dr. Cameron.  Subsequent to the hold-ups, the plaintiff again consulted his general practitioner, Dr Cameron, and, of more recent times, Dr. Cameron’s now partner, Dr Butcher.  In particular, Dr Cameron had contact with the plaintiff from the time of the first hold-up until the time of his resignation from the Bank.  Dr. Cameron arranged for the plaintiff to be treated by a psychologist, Mr. Wayne McLeod; neither of these people were called to give evidence, nor were their reports tendered.

At the time when this matter came for trial before me, the plaintiff was being treated by a Dr. Malcolm Battersby.  Dr Battersby was not called to give evidence.  A one page report, dated 14th January 1993, was included with the medical reports tendered as exhibit PI, and wrongly described as a report of Dr. McFarlane.  Dr. McFarlane was also aware that the plaintiff was being treated by Dr. Battersby and made reference to it in his reports and his evidence.  It would seem that Dr. Battersby embarked on a program for treatment of the plaintiff’s condition of agoraphobia, which has become exacerbated, since the occurrence of the hold-ups, and that he is contemplating embarking on a program for treatment of the condition of “Post traumatic stress disorder”.  There is nothing which tells me how, why and by whom the plaintiff was referred to Dr. Battersby.  I would suspect, from the fact that his report is addressed to a rehabilitation counsellor with the Commonwealth Rehabilitation Service, at Prospect, that the plaintiff has been involved in some rehabilitation program and that it is through that program that he has been referred to Dr. Battersby.  Once again, I have no information with regard to any rehabilitation program with which the plaintiff has been involved.  There was no evidence produced before me of any treatment, which the plaintiff has yet had, which addressed the condition of “post traumatic stress disorder”, from which Professor McFarlane diagnosed him as suffering.

Dr. Cameron, who was not called, and Dr. Butcher, who was called to give evidence, have both prescribed various drugs from time to time in varying doses, but there is nothing to suggest they form part of any co-ordinated program for the treatment of the condition of “post traumatic stress disorder”.  Indeed, on the basis of the evidence before me, it would seem that they have been used to relieve his acute symptoms from time to time and on an as needs basis.

The plaintiff was referred to, Dr. Schembri by the plaintiff’s solicitors, for medico-legal purposes, and subsequently, for the same reasons, he was referred by the solicitors to Professor McFarlane.  I do not know what, if any, of the views of either these doctors have been officially communicated to any of the plaintiff’s treating doctors.  I suspect, however, that none of the information has been formally transmitted to them.  Indeed, Dr. Butcher, in his report of 27 August 1991, understood that Dr Schembri was the Bank Psychiatrist.

Thus, it seems that, although the plaintiff has seen a significant number of medical practitioners, there has not been any overall attempt to rationalise the plaintiff’s medical treatment.

The situation has been compounded by two further matters.  Firstly, Mr Kirtland, as part of his underlying nervous condition, has endeavoured to minimise to his employer the effect of the condition of agoraphobia, lest it should interfere with his progress in the Bank.  He also has an introverted attitude to events and decisions which effect him.

The Bank has endeavoured to accommodate the plaintiff’s needs and wishes, as far as his employment is concerned, at all times.  I consider, however, that the staff, who are required to deal with personnel, who like the plaintiff have been subjected to a substantial emotional trauma arising out of their employment, have not been adequately been trained, or qualified.  In life, generally, if a person suffers a compound comminuted fracture of the femur, people would expect that person would require extensive and specialised orthopaedic treatment.  An employer would, in all probability, design any return to work on the basis of a report from such orthopaedic specialist, as to the person’s capacity and the extent of their residual disability.  When the person suffers from a compound comminuted psyche, the general attitude is much different.  It is quite clear, from the evidence given by Professor McFarlane, that there is just as much need to know and understand the nature and extent of the residual disability, in order to provide the injured person with suitable employment when they are ready to return to the work force.

The Bank was aware that the plaintiff had suffered a significant emotional trauma and, indeed, in the middle of 1988, knew that the plaintiff was away from work because of his emotional condition and had to return to work on a graduated basis.  I appreciate that the Bank had been asked not to contact the plaintiff at that time and that they were, therefore, not aware of his circumstances.  It would seem, however, that, when he returned to work at that time, the Bank acted upon the plaintiffs own requests and not on any medical report, or advice.  Certainly the Bank did not choose to put any evidence before me to suggest that they had acted on any such advice, or recommendation.

I mention all of these matters, because, in the light of all of these circumstances, much of my assessment must be based upon the general feeling which I gained from the various witnesses and the way in which their evidence came together, or, indeed, in many cases, failed to come together.

The second hold-up occurred late on a Thursday afternoon. on this occasion, the plaintiff was actually at his desk in the banking chamber, when the bandit came in.  There were two female bank officers in the banking chamber at the time and one male officer at the toilet at the first floor.  The plaintiff was ordered, by the bandit, to lie, face down on the floor.  He complied with that direction.  Subsequently, he was menaced, by having a gun pointed at him, and told to stay where his was.  Mr Kirtland estimates that the robbery took approximately one minute, from the time of the robber announcing his presence to the time of his leaving the Bank.  Following the robbers’ departure, Mr Kirtland locked the door of the premises and then set about contacting the Capital office, to advise them of the incident.

On the second occasion, as with the first, the police were in attendance and representatives of the Capital office, including, Mr Brett attended.  Mr Kirtland stayed at the premises, until the various enquiries were complete. on that day.  Before he left, arrangements were made for him to see the psychiatrist, Dr. Kobayashi, on the following day.

That night the plaintiff took a sleeping tablet and was able to sleep soundly.

The plaintiff went to see Dr Kobayashi, on the Friday morning.  Dr. Kobayashi did not give evidence, nor was any report of his tendered.  The plaintiff reported, however, Dr. Kobayashi had indicated that he, the plaintiff, appeared to be more calm this time around.  The plaintiff said, however, that, because of his distrust of Dr. Kobayashi, he did not say a great deal to the doctor.

I can only assume Dr Kobayashi did not prescribe any medication, or suggest any further form of treatment, or therapy.  If my assumption is incorrect, I was not given any evidence to the contrary.

After seeing Dr Kobayashi on the Friday morning, the plaintiff returned to work at Clearview for the rest of the day.  Later on that day, Mr. Brett, again, attended at the Clearview Branch.  The plaintiff mentioned to him that he wished to be transferred.  Mr. Brett advised the plaintiff that there was a vacancy in Administration Lending, at the Adelaide Branch.  He asked the plaintiff to consider such a position.  He made an appointment for the plaintiff to see the personnel department on the following Tuesday afternoon.

The plaintiff indicated that, over the weekend, he had given a lot of thought to the proposal put to him by Mr Brett.  He said, at page 154 of the transcript:-

“Throughout the weekend I gave it lots of thought, but I was restricted as to where I was going to be placed, I could be placed in the Bank because of my agoraphobia which would have made it difficult to work in the city, and also, I did not wish to be transferred to a small branch, at all, because I believed they were just as likely to be - more likely to be held up that larger branches, so it was a very, very difficult time for me to decide where I should go in the Bank, where I could be safe etcetera.”

On the Saturday night, the plaintiff had a nightmare about a gun being pointed at him.  He said that over the weekend he was feeling uptight, because he had to see the personnel department on the following Tuesday, and discuss where he could go in the Bank.  He indicated that his concentration level was impaired over the weekend, because of his thoughts as to his future.  He felt bitter, because he was being forced out of a branch, because of the action of criminals.  He said that he felt that he was being punished through their actions.

The plaintiff went to work on the following Monday.  A decision had been made by the Bank, that a security guard should in place at the branch.  This eased the plaintiffs anxiety somewhat.  He also said that the members of staff were required to sign a form acknowledging that that they had read a memorandum from the Manager, stating that the security guard was to be in place for a very limited period of time.

The plaintiff kept his appointment with the Personnel Department.  He was offered a position at the Modbury Branch of the Bank, on a trial basis, for one month.  It was indicated that if the position was considered suitable, the plaintiff would be left there on a permanent basis.  The position was as Assistant to the Savings Bank supervisor.  The position of Savings Bank Supervisor, at that Branch, was an AM1 position, whereas the plaintiff was classified as AM2.  The Bank was prepared to leave the plaintiff in that position overgraded, if necessary.  The plaintiff decided to accept the offer of the position at Modbury North.  He indicated that he had considered the possibility of a position in Administrative Lending, in the City Branch, over the weekend, but was unable to take up that position, because of his previous medical problems. it is clear that, whilst the plaintiff seems to have had no problems whilst he had been working at the Clearview Branch, he accepted that his condition of agoraphobia was ongoing and that it would limit him in the future.  At page 158 of the transcript, when dealing with his ambitions for future promotion, he said:-

“I was aware because of my agoraphobia I was going to be restricted as to where I could be placed, so in essence I did not chase promotions”.

The plaintiff finished at the Clearview Branch on the 25th March and started at the Modbury North Branch on 29th March.  It seems that the plaintiff had had another appointment with Dr. Kobayashi, in the week following the second robbery, but the plaintiff had cancelled that appointment.

When the plaintiff started at the Modbury North Branch, apart from the usual nervousness when starting at a new Branch, he felt all right.  After about a fortnight, however, the situation changed.  It was the plaintiffs assessment that there was hardly enough work for one person as the Savings Bank Supervisor, so that, when he was introduced as an Assistant to the Supervisor, he did not have enough work to occupy his time.  The plaintiff spent a considerable amount of his time reading Bank manuals.  He indicated that he became bored and bitter, at being forced out from Clearview because of the bandit.  He also began to have problems with his sleeping.  In fact, at the end of his first week at the Modbury North Branch, he contacted the Personnel Department by telephone and asked to be transferred from that branch as soon as possible.  He was then told that they had arranged for him to sit for an aptitude test for the E.D.P. Centre, on the 7th April.  The E.D.P. centre is in Waymouth Street, Adelaide.  The job would involve the plaintiff travelling to work in the city.  However, the work in that centre was shift work and he would, therefore, not be travelling in peak hour traffic.  The work involved using computers, which was one of the plaintiffs hobbies in any event.  He was quite keen, therefore, to join E.D.P. The plaintiff indicated that he was quite happy to be reduced in status from a AM2 to an AM1, in order to fill a vacancy in that department.

On the day that the plaintiff sat for the aptitude test for E.D.P. department, he learnt that there had been a hold-up at the Enfield Branch of the Commonwealth Bank.  Jenny Williams, who had been a teller at the Clearview Service Centre, during the two hold-ups there, was working at the Enfield Branch at that time.  That evening, Jenny telephoned the plaintiff and invited he and his wife to her home to talk about the matter.  The plaintiff and his wife decided they ought to go to see Ms Williams.  The plaintiff indicated that the hold-up of the Enfield Branch had shocked him.  He had regarded that branch as a relatively safe one.

On the following day, Mr Brett and Mr Damato, the Accountant of the Enfield Branch, came to visit the plaintiff at the Modbury North Branch.  The purpose of the visit was to find how he was coping after hearing news of the robbery at Enfield.  The plaintiff mentioned that he had been to visit Ms. Williams.  The plaintiff stated that this provoked Mr. Brett to say:-

“You are not exactly a pillar of strength yourself”

He indicated that he thought it would be better if the plaintiff did not have further contact with Ms Williams, until she had recovered from her trauma.  The plaintiff said that this caused him to be very upset and annoyed and to be an indication by Mr. Brett that the plaintiff was a weak character.  At this time the plaintiff was having many restless nights and frequent nightmares.

When giving his evidence, Mr Brett was asked if he could recollect saying anything to Mr Kirtland to the effect of:

“You are not exactly a pillar of strength yourself”

Mr Brett indicated that he could not recollect having said that and he went on to say that it was unlikely that he would have said that.

The visit of Mr Brett to the Modbury North Branch was the subject of a memorandum dated 25 May, 1988, prepared by Mr Brett.  That memorandum makes no reference what so ever to the contact between the plaintiff and Ms Williams, or of any advice tendered by Mr Brett.

Whilst Mr Kirtland may have a distorted view of certain matters, I consider him to be essentially a witness of truth.  It was clear, from the manner in which he gave his evidence, that this incident was one which caused him a significant hurt.  For that reason, it is a matter which would clearly stick in the plaintiffs mind.  Mr. Brett, on the other hand, acknowledged that his recollection of discussions, in relation to these events, was reliant to a very large extent on the notes, which he had made at that time.  It is also clear that the matter of the contact between the plaintiff and Ms Williams was not one of any great significance to him, since it did not rate a mention in his memorandum of 25 May, 1988.

I find, therefore, that a conversation of the nature mentioned by Mr Kirtland, did take place and I accept that it was likely to have caused emotional distress to Mr Kirtland.

Mr Kirtland experienced difficulty in finding the motivation to go to work at that time.  On the 12 April, 1988, he rang the Bank to say that he would not be coming in, because he was sick.  At 10 o’clock on that day, he was contacted by a member of the police force and advised that he was required to give evidence, on that very day, in relation to charges against one of the men involved in the first hold-up.  He was asked to get into the Adelaide Magistrates’ Court as quickly as possible.  He said that he was feeling very uptight, but, fortunately, his wife was home and was able to come in with him.  When he got into the Court, he saw Jenny Williams, Jeff Brett and the Banks Occupational Health Nurse.  The plaintiff gave his evidence, which he described as being a very harrowing experience.  He also described himself as being very angry, to an extent that he had not experienced either before, or since.

After having given his evidence, the plaintiff was required to sign the transcript of the evidence and he had to wait around for that purpose.  He had a discussion with Mr Brett, at that time.  At page 173 of the evidence, the said:-

“I mentioned to Jeff Brett that I wanted a transfer from Modbury North as quickly as possible, because of my deteriorating health position and also the general boredom at work, which was leading me to a more depressed state and thinking more of the robberies”.

Mr Brett’s memorandum of 25th May records, in relation to that, “at the time Darryl was anxious and apprehensive but sought no professional help.”

On the evening of the 12 April, 1988, the plaintiff went to see Dr Cameron.  He said on page 174 of the transcript:-

“I told him the full details of the events which had taken place that day, and also of my deteriorating health position, whilst I was at Modbury North and how I wanted out of there was quickly as possible”.

Dr. Cameron gave the plaintiff a certificate for three days off work, but the plaintiff asked Dr. Cameron make it on a normal sick leave basis and not compensation.  Dr Cameron also offered to write a letter to the Bank, if the plaintiff had not been transferred within a week.

The plaintiff returned to work on 18 April, resuming the work which he had been doing previously.  He indicated that he was having problems making decisions. on one occasion, he was belittled in front of a Junior officer, because of a decision, which he had made, which did not correspond with branch policy, which was not part of the Bank’s policy.  At this time, he was experiencing nightmares.  At the end of the week, not having heard from Personnel, he contacted them by telephone.  He advised them that his overall health position was deteriorating.  He was advised that he would get over the trauma, but, it would seem that, they did not appear to appreciate that his remaining at Modbury North was adding to the effect of the trauma.

The following week, he telephoned E.D.P. and was informed that he had passed the aptitude test.  He was informed further, however, that there were no vacancies in E.D.P. and that there would be no vacancies at his level for at least two years.  He therefore contacted the Personnel Section once again and indicated that he wanted a transfer from Modbury North, as quickly as possible, because of his health position.  He was advised that they would contact him, when they had been able to work out a permanent place.  The plaintiffs condition deteriorated and he describes himself as feeling like a zombie at that time.  Although the plaintiff said, at that time his condition of agoraphobia was deteriorating and it was of concern to him, he says that he did not seek medical advice, nor was he taking any medication.

At about that time, he had to go to a Service Centre, which was part of the Modbury North Branch set-up.  He indicated that he thoroughly enjoyed himself at that Service Centre and felt more confident in himself.  At about 4.00 pm on that day, however, he received a telephone from an Ian Wilson, from the Personnel Department.  He was advised that they had found a permanent position for him in the Administration Lending Department.  The plaintiff was asked to give consideration to that position and to contact Wilson the following day.  The plaintiff describes himself as being stunned and furious, because he had already indicated to Mr. Brett that he felt he could not take that position, because of the conditions which it involved and the effect that it would have on his overall condition of agoraphobia.  The plaintiff said that, following this, he felt very agitated and, that night, he had a nightmare and was constantly thinking of the proposition put to him by Wilson.  The following day, the plaintiff contacted Wilson and declined the position.  The plaintiff indicated that this drew a reaction from Wilson that the plaintiff would have to wait, until the Bank was ready to find another position and that this may take some considerable time.  The plaintiff indicated his desperation by saying that, since he knew that a security guard had been placed at the Clearview Service Centre on a permanent basis until bullet proof glass had been installed, he was willing to work there.

Mrs. Kirtland was given a diary for the Bicentennial Year, 1988.  She kept that diary throughout the year.  It was tendered as exhibit P19.  By reference to that diary, it is possible to say that the day, on which the plaintiff went to the Service Centre was Thursday 5 May, 1988 and the day, on which the plaintiff rang back and had the longer conversation, was Friday 6 May.  At page 682 of the transcript, Mr Brett was asked questions in relation to Mr Wilson and the possibility having him spoken to Mr Kirtland at this time.  Mr Brett indicated that his did not believe that Mr Wilson would have contacted the plaintiff, or that Mr Kirtland would have been offered a job in Administration.  I have already said that Mr Brett acknowledged that his recollection of the events was dependent, to a large extent, on the written records.  It would seem that there are no records in relation to this contact.  Nevertheless, I accept Mr Kirtland’s evidence in that regard.

Those events caused a significant exacerbation of Mr Kirtland’s emotional state, to such an extent that Mr Kirtland contemplated suicide.  Mrs Kirtland was so concerned that she contacted Dr Cameron.  Dr Cameron considered that the plaintiff should not continue at work and that he should he come to consult Dr Cameron.  The visit to Dr Cameron occurred on Tuesday 10 May, 1988.

Dr Cameron certified the plaintiff as being unfit for work.  He placed him on medication and referred him for consultation with a psychologist, a Mr Wayne McLeod, on the following Saturday. on the Friday before he saw Mr McLeod, the plaintiff received a letter from the Bank, containing forms in respect of a compensation claim arising from his incapacity.  The letter had misspelt the plaintiffs name.  This caused him to become upset.  I mention that as an indicator, that the plaintiff was in a very delicate position at that time.

Mr and Mrs Kirtland attended Mr McLeod on the Saturday.  He took a full history from them, including details of the robberies.      The plaintiff said that having to speak of the robberies    increased his anxiety.  The plaintiff, at about this time, was     having many restless nights and lots of nightmares.  He also claimed to be suffering from flashbacks of the robberies.

At about this time, a mutual understanding was reached, between the plaintiff and his wife and the Personnel Department of the Bank, that the Personnel Department would not contact the plaintiff, until after what was described by the plaintiff as being his “break-down”.

When asked what he did with his days, during the period that he was off work at this time, the plaintiff indicated that he had a lot of blanks as to what he actually did.  He would not answer the telephone, if it rang.  The plaintiff did various jobs about his home.  He helped relatives move home.  He and his wife went to Queensland for a family wedding, around about 25 June.  The plaintiff coped with the driving and travelling, but, because of his condition of agoraphobia, he did not sit with his wife during the church service.  He sat at the back of the church.  In early July, the plaintiff contemplated becoming involved in an observers course with the Bureau of Meteorology, in Melbourne.  He did not go on with it however, because it would have involved him being in a class room situation.  He was not confident of his ability to cope with this.

Throughout July, the plaintiff continued with his medication and continued to see Mr McLeod.  By 27 July, Mr McLeod obviously considered Mr Kirtland had recovered to such an extent as to justify consideration of a return to work.  A memorandum of Mr Brett dated 28 July 1988, which is part of the material in exhibit D21, commences:-

“For some time now Darryl has been on sick leave due to hold-up trauma.  We had been advised that medical opinion was that we should not contact him and this we have acceded to.  Mr Kirtland telephoned today and sounded in good spirit.  He wished to advise that he was feeling better and that his psychologist and G.P. both feel he could resume duties on 8 August 1988 - on restricted hours with close monitoring.  Darryl has an appointment with Dr Cameron on Friday, and the doctor will contact me in this regard, following the consultation”.

The memorandum goes on to give details of thoughts, which the plaintiff had given to Mr. Brett, with regard to his future placement.  It then states:-

“I made no comment about his reasoning but stated that we would need to be guided by medical opinion.  I have no doubt that the doctors will support Darryl’s reasoning, however, and recommend that we arrange such a placement for him”.

Apparently, arrangements were made between the Bank and the plaintiffs medical advisors, although there was no evidence, apart from the plaintiffs own version, before me.  On 8 August 1988, he started working two hours a day, from 9.00 am till 11.00 am.  He considered that in that first week, although he was still having restless nights, he was coping quite well.  The following week, the hours were increased from 9.00 am till 1.00 pm.  Again the plaintiff felt that he was coping.  Later again, the plaintiff asked Dr Cameron that be certified fit to resume normal duties, as from 29 August 1988.  Again, it would seem, that arrangement was put in place.

Mr Kirtland described his job, at the St Agnes Branch, as being the Assistant Manager’s right-hand man.  He did whatever work was given to him by the Assistant Manager.  He worked at a position behind the Assistant Manager’s office.  Initially he felt that the frequency of nightmares had reduced and that he was pleased with his progress.  At the end of August, the plaintiff contacted the Personnel Department to enquire as to his prospect of permanency at the St Agnes Branch.  He was advised that the decision would not be made for three to four months.  This advice upset the plaintiff and he again he started to have restless nights.  In September, he took leave.  He spent some time in the Grampians and some time on the West Coast.  He said that he thoroughly enjoyed the holiday and that he felt the best he had felt, since before the first robbery.  As the time approached for him to return to work, however, he began to have restless nights and nightmares, and his tension level increased.  He returned to work at St Agnes.  He continued to take medication, but his stress level increased.  He did not go back to Dr Cameron, or Mr McLeod, because he said he had lost all faith and confidence in psychologists.  He began to consider his future with the Bank and looked at alternatives.  He looked at a newsagency business, but decided against it, because of the potential for robbery.

On 30 November 1988, the plaintiff was interviewed by Mr Bob Martin and Mr Leigh Duthy, from the Personnel Department at the Bank.  They advised that he was to be placed at St Agnes on a permanent basis.  They enquired as to his health, and indicated that he was to take over the position of Savings Bank Supervisor at the St Agnes Branch.  He indicated that he did not consider he was able to take over that position at that time.  He was asked to contact, them when he felt he was able.  This involved the plaintiff working in a position, which was classified AM1 status, whereas he was AM2.  He was to remain in the position overgraded.

On 14 December, representatives from the Personnel Department interviewed the plaintiff at the St Agnes Branch.  Apparently, one of the plaintiffs former colleagues, from the Enfield Branch, had been in touch with the Department and had suggested that the plaintiff was contacting him almost on a daily basis.  The plaintiff believed the situation to be that it was his colleague who was, in fact, contacting him.  He was asked, by the Personnel Department representatives, not to contact the other person.  The plaintiff said that this increased his anxiety and restlessness and that he felt depressed, because he had been betrayed by a person, who he had thought to be a friend.

The plaintiff took up the position of Savings Bank Supervisor at St Agnes, in mid January 1989.  He stated that he did not think that he was ready to take over the position at that time.  As time went on, he says that he felt more uptight and was having more restless nights.  In February, he was asked to make an assessment of staff over a twelve month period, when, in fact, he had only been in his position for less than a month.

In February 1989, there were significant teller discrepancies.  It was necessary for the plaintiff to discipline the tellers.  He found this an arduous task and again, it heightened his anxiety level.

The plaintiff began to look around for alternative business opportunities.  Early in 1989, his wife saw an advertisement, in the paper, for the sale of the kiosk as the Levi caravan Park.  She brought this to his attention.  Ultimately, the plaintiff and his wife decided to purchase the business and for the plaintiff to resign from the Bank.

The formal contract, for the purchase of the business, was signed by the plaintiff on Thursday 9 March 1989.  The plaintiff advised the Assistant Manager of his intention to resign on that afternoon.  On the following day, Friday 10 March, he tendered a written resignation, nominating 26 April as the date of his resignation.  On 10 March, the plaintiff then left on four weeks annual leave.

Mr Brett acknowledged that he was aware of the resignation, when it was received by the Bank.  He was asked whether he was aware that Mr Kirtland was suffering from some effects of the robberies, at the time of his resignation.  He said that he was not.  He also indicated that there had been no complaint from Mr Kirtland, as to his ability to perform his duties, or any request for any further change in his employment.  The plaintiffs letter of resignation was not tendered before me.  There was no cross examination of Mr Brett as to whether the plaintiff had given the fact, that he was suffering from the effect of his nervous condition, arising from the robberies, as the reason for his resignation.  I can only assume, therefore, that no such reason was given.

The plaintiff then took his four weeks leave, during which time he concerned himself with completing all the arrangements for taking over the business.  He resumed work on 12 April.  He then worked out the balance of his notice to 26 April.  During that time, it would seem that there was no contact between the plaintiff and the Personnel Department.

On the 12 April 1989, he also consulted Dr Butcher.  His concerns, at that time, appeared to be. difficulty with regard to the contract the purchase of the kiosk business.  Some of the figures had changed, which resulted in a reduced anticipation of $6,500 per year.  That was the first occasion upon which the plaintiff had consulted Dr Butcher in relation to any emotional problems.  Dr Butcher was, by that time, a member of the same partnership as Dr Cameron.  Dr Butcher said that he prescribed sleeping tablets and that he gave a medical certificate for three days.  The plaintiffs evidence, however, was that he went back to the Bank on 12 April.  I can only assume, therefore, that he chose not to submit the certificate.  Thereafter, Dr Butcher did not see the plaintiff for some eighteen months, until the 5 October 1990, on which occasion the plaintiff told Dr Butcher he had sold the kiosk business the previous week.

The plaintiff and his wife ran the kiosk business, working together for long hours, seven days per week.  They divided the functions between them.  It was part of the plaintiffs duties to do the book-keeping and ordering.  As part of that function, he also did the banking.  He indicated that he had no problem with that.  He was able to coordinate it with other duties at a nearby supermarket.  The Kirtlands introduced modifications to the business by way of new fittings and layout and variety in the lines on stock carried.  Despite the concern expressed to Dr Butcher on 12 April 1989, it seems the financial returns from the business were better than anticipated.  In order to purchase the business, they had obtained a loan of $50,000 with regular monthly repayments of interest and reduction of capital.  The anticipation was that, the capital would have been reduced by some $11,000 in the first year.  In fact, the loan was reduced by something of the order of $30,000.

Apart from anxiety arising from an incident, when a customer had attempted to climb over the counter and another incident involving some gypsies, it seems that the Kirtlands were able to conduct the business well and efficiently, although the long hours, seven days per week, restricted their social activity to a significant extent.  Mr Kirtland described that time as busy, but a happy period.  Commencing at page 528 of the transcript Mrs Kirtland was asked:-

Q:.... Briefly, how did he seem to you to be dealing with his work in the shop.

A:He did really good, really well.

Q:.... Did he seem happier.

A:Yes.

Q:.... Did his nightmare seem to you to be reduced in frequency or intensity?.

A:I think he might have only had about three nightmares the whole of the time we were there.

Q:.... You have given other examples of avoiding people in crowded places.  How did he seem to cope with that.

A:That was fine.

Q:.... There were instances, I imagine, when either you or he were carrying cash.

A:Yes.

Q:.... How did he seem to cope with that.

A:He didn’t have any problems.  In the first couple of weeks he was a bit worried, but it didn’t - after the first couple of weeks he sort of got over it.  We had agreed beforehand that he would do the banking, because he had finance knowledge and I didn’t.”

The caravan park, of which the kiosk formed a part, was run by a Trust.  In the latter portion of 1989, the Trust announced its intention to modify the layout of the caravan park, to add a new entrance from the roadway, which ran along the boundary of the caravan park closest to the kiosk. one of the aspects of the business, which had initially attracted Mr Kirtland, was what he perceived as the safe location of the kiosk.  In order to reach the kiosk from the gate of the caravan park, it was necessary to travel through the general area where the vans were parked and to negotiate speed humps.  To Mr Kirtland’s way of thinking, the proposed new entrance destroyed that security.  He acknowledged, however, it could and did, in fact, bring increased business to the kiosk.  The alterations were completed by Easter of 1990.  The Kirtland’s sold the business effective from 30 September 1990.  At page 247 of the transcript Mr Kirtland was asked:-

“Q:... Did you think, or did you give consideration to what you would do after the business was sold, if it was sold.

A:Well, after - I was confident, you know, if the business did sell because, you know, vast clerical experience, that I would be able to, you know, find employment fairly readily - because I think the unemployment rate at that time was definitely much lower than what it was now”.

Mr Kirtland in fact consulted Dr Butcher, on 5 October.  He told him of having sold the business, having “done okay from same”.  He also told the doctor that he was proposing to sue the Bank for negligence, and that he wanted a sick note to be off work “because of the stress which he attributed to the robbery”.  Although it was not stated, it would seem that Dr Butcher went along with that request.  He next saw the plaintiff on 9 October, when Dr Butcher said:-

“He brought in a whole sheath of reports from a psychiatrist, Dr Schembri, who assisted him through the after shock of the two bank robberies.”

Two reports of Dr Shembri were tended before me, and formed part of exhibit PI.  The first report, dated 13 February 1989 followed and examination on 6 January 1989, and the second, dated 17 January 1990, followed a re examination on 17 January 1990.  It is clear, from even a quick perusal of those reports, that Dr Schembri was not involved in Mr Kirtland’s treatment at all.  He had seen him purely for medico legal purposes, to give reports to the plaintiffs solicitors.  Clearly Dr Butcher considered the plaintiff had some form of emotional problems at that time, because he continued him on what he described as a “high dose” of Ativan.  He did not, however, refer him for any expert appraisal, or treatment, of his emotional condition.

Despite his request for a certificate of incapacity from Dr Butcher on the 5 October, 1990, Mr Kirtland indicated that, throughout most of October, he was busy seeing people in connection with the sale of the business and finalising accounts.  He said that it was not until November that he started consulting the Advertiser looking for jobs.  He did not go to the Commonwealth Employment Service, but to the Department of Social Security.  He was put on to sickness benefits and referred to the Commonwealth Rehabilitation Service.

The plaintiff consulted Dr Butcher on 28 November and the 8 December in relation to a problem associated with his leg.  In relation to 28 November, it would seem that Dr Butcher certified the plaintiff as suffering from post traumatic stress.   When asked why he had done this, Dr Butcher,  answered:-

“I think I needed something to put down on his medical certificate that I thought could substantiate it.  I was feeling somewhat in a grey area.  I had a man whom I didn’t know all the details at the time of the bank robberies.  I knew some of the details.  I had yet to realise the effect the robberies had on him, and I was having some troubles with my conscience, as to whether this man was medically unemployable at that present time or not, and I felt it was insufficient to put down on a basically legal form, just put down a bit of anxiety, or he is not feeling too good.  I wanted to have some sort of definitive diagnosis”.

The plaintiff returned to see Dr Butcher in January 1991.  The doctor’s note reads “upset by Government Rehabilitation Medical Officer yesterday”.  The doctor indicated that he did not understand that entry and was not able to recall what the upset was about.  He again saw the plaintiff in February, for an extension for sickness benefits.  At that time, the doctor said that the plaintiff was referred to Mr McLeod, psychologist.  As I have already complained, Mr McLeod was not called, nor was any report of his tendered.  The two reports of Dr Butcher, which were tendered as part of exhibit Pl, make no reference to the referral to Mr McLeod at that time.

At the Commonwealth Rehabilitation Service the plaintiff saw a Mr Richard Reilly, whom, I was told, was a psychologist.  I have no more information about this, other than that Mr Reilly undertook to organise a work trial with the Bureau of Meteorology, which commenced in March 1992.  I have no idea as to what occurred, as between Mr Reilly and the plaintiff, and his treatment in the meantime.  However, it is clear that he spent some substantial time in June 1991 working on preparation of his statement, in relation to this claim.

Following that, from September 1991 until February 1992, the plaintiff and his wife relieved his uncle, who conducted a wholesale milk round.  His uncle had to undergo heart surgery.  After being shown the round by his uncle’s wife, the plaintiff and his wife ran the round until the plaintiffs uncle returned, in January of the following year.  Thereafter, the plaintiff worked with his uncle for two or three weeks.

Thereafter, the plaintiff’s work trial with the Bureau of Meteorology, commenced on 23 March 1992.

He sat for a Public Service examination.  He passed the exam, but was informed that his marks were not high enough to be considered for selection for the next twelve months.

The plaintiff said that he had commenced with Dr Battersby, at the Flinders Medical Centre on 27 May 1992.  He is apparently being treated in relation to the condition of agoraphobia.  He acknowledges that he has made some advances in that regard.

Since mid 1992, the plaintiff has made various applications for Government positions, but has been unsuccessful in any of his applications.

Dr Butcher has continued to see the plaintiff up to the time of the trial.  He has, over that period, prescribed various forms of medication, in varying doses, depending on the plaintiffs emotional condition.  The case was not reached on the first occasion that it was listed for trial and had to be adjourned. on the occasion of the second date fixed for trial, counsel for the plaintiff was indisposed.  It was almost twelve months between the date of the first date fixed for trial and the actual trial.  Over that period, the plaintiffs condition fluctuated significantly.  Dr Butcher manipulated the drug therapy as the need arose.

Because of the failure to call any of the plaintiffs treating specialists, I am forced to consider this matter on the basis of what Professor McFarlane called his “retrospective diagnosis”.  The problem with this situation is not Professor McFarlane’s ability to make the diagnosis, but, rather, the unreliability, or inaccuracy, of some of the material upon which Professor McFarlane had to base his considerations.  The material, upon which Professor McFarlane based his diagnosis, that following the second hold-up the plaintiff suffered from post traumatic stress disorder, and that subsequently in mid 1988 he was suffering from major depression, was proved to my satisfaction at the trial.  Professor McFarlane was critical of the lack of proper therapy and reference to properly qualified therapists.  He was inclined to lay the blame for this at the feet of the Bank.  It is true that the Bank did arrange for the plaintiff to see Dr Kobayashi.  I have no basis, apart from Professor McFarlane’s comments, upon which to base an assessment of the suitability of Dr Kobayashi to counsel the plaintiff, following the hold-ups.  Be that as it may, however, following the second hold-up the plaintiff only consulted Dr Kobayashi on one occasion.  Thereafter, his treatment came under the general supervision of his own general practitioner.  The Bank has no right to direct, or supervise, its employee’s medical treatment.  It quite properly allowed the plaintiff to consult his own practitioner.  The Bank endeavoured to meet the requirements of the plaintiff, based on his medical advice at all times following the second hold-up.  Since that time, the Bank has not endeavoured to influence the plaintiff, or his medical advisors.  It has been reactive to their wishes.

I accept that, as Professor McFarlane has said, unless the plaintiff is given a very successful treatment package for his post traumatic stress disorder, he is likely to continue to avoid situations where his perceives himself at risk, although there may be periods when his post traumatic stress symptoms will substantially resolve, as they did when he was working at the Levi Caravan Park Kiosk.  Professor McFarlane said that the symptoms will decrease, following the resolution of the claim, but, nevertheless, it is likely that there will be some ongoing condition.

So far as the depression is concerned, the plaintiff overcame this by August 1988.  Professor McFarlane did indicate, however, that the fact, that the plaintiff has had such a condition, would make it more likely that he would suffer further episodes of severe depression in the future, should the appropriate stresses occur.  It was not suggested that such recurrences would come about spontaneously.  The Commonwealth Employees Compensation and Rehabilitation Act, 1988, imposed limitations as to circumstances in which an employee may bring a claim for damages, against his employer and to the nature of the damages which he may claim.  The Act also provides that its provisions will not apply, in relation to proceedings which had been issued prior to the date of the Act coming into operation.  The proceedings in this matter were issued on 30 November 1988, which was prior to the Act coming into operation.  There is therefore, no limitation as to the circumstances in which the plaintiff may claim damages, nor as to the nature of the damages which he may claim, imposed by that Act.

It is necessary, at this stage, to look at the question of causation.  In my view the situation applicable to this case was neatly summarised by Smith J. in Haber v Walker (1963) VR 339 at 358 when he said:-

“In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm, unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful.  Exceptions to this first principle are narrowly confined.  Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection.  And, finally, the intervening occurrence, if it is td be sever the connection, must ordinarily be either
(a)     human action that is properly to be regarded as voluntary, or

(b).... a causally independent event the conjunction, with the wrongful act or omission is by ordinary standards, so extremely unlikely as to be termed coincidence”.

In my view, the plaintiffs decision to leave the Bank and purchase the Kiosk business at the Levi Caravan Park was a “human action that is properly to be regarded as voluntary”.  What has transpired, since that time, results from the conscious acts of the plaintiff and, to some extent, ineffective and inappropriate medical treatment.

The plaintiff makes no claim for economic loss, up to the time of the his leaving the Bank.  There is, therefore, no element of past economic loss to be included in the plaintiffs award of damages.

So far as the future is concerned, it seems to me that Mr Kirtland’s position, before the robberies occurred, is neatly and adequately summarised by Professor McFarlane, when he said, at page 606 of the transcript:-

“Once you have developed agoraphobia, you always have an increased risk of developing it, and I think his work environment in a sense has been structured to minimise the potential for re-emergence of his symptoms.  I think the Branch he was working in, I guess, suited his particular needs”.

Mr Kirtland’s ambitions for promotion and advancement within the Bank were unrealistic.  He was always going to require a protected environment.  Whilst the Bank obviously seemed prepared to accommodate Mr Kirtland’s needs, there is no basis upon which I can find Mr Kirtland’s ambitions were any more than hopes, or that they were realistic.

Once again, Mr Kirtland’s own decision to leave the Bank has destroyed his prospect of continuing at the AM2 level, in a suitably structured environment.  There is no basis, therefore, upon which to make an award of damages for future economic loss.

So far as general damages, for pain and suffering, and loss of enjoyment of life, are concerned, there is no doubt that the condition of “post traumatic stress disorder” and the severe depression, while it lasted, were of significant proportions and had a substantial effect on Mr Kirtland’s life.  Certain aspects may in fact may have been distorted by Mr Kirtland’s own perspective.  Nevertheless, to him, these matters were very real.

It is obvious that the events of the past twelve months, relating to the “on again”, “off again”, situation with the trial, and, in particular, the pressure related to having to give his evidence, when the matter did come to be heard, have resulted in severe exacerbation of his underlying condition.  I have agonised as to the extent to which this should be brought into consideration in the present case.  I have ultimately made allowance for this in my assessment of the pain, suffering and loss of enjoyment of life to date.

For the future, I take into consideration all that Professor McFarlane has said with regard to his prospects with improvements in such matters.  I have endeavoured to make allowance for the matters which I consider result from the plaintiffs own actions and the short, comings of his medical treatment.  In all the circumstances, therefore, I allow an amount of $25,000 in respect of past pain, suffering and the loss of enjoyment of life and allow $5,000 for the future.

Since the Kirtlands’ kiosk business, Mrs Kirtland has not resumed employment, apart from assisting her husband with his uncle’s milk round.  She had chosen to stay at home, because she felt her presence would assist the plaintiff.  Clearly she has not done anything other than normal domestic chores, which would have been done in any event.  She has not had to nurse, or assist the plaintiff in such a way as to justify any Beck, and Farrelly type award of damages.

The parties submitted a schedule of special damages, as at 10 September 1993, which was agreed as to quantum.  The schedule sets out the “provider”, “reason for treatment”, “date”, “amount”, and “paid”.  In relation to certain items, I simply can make no allowance.  The first of these items is Commonwealth Rehabilitation Service.  There are two amounts, aggregating, approximately, $4,600.  I am aware that he has undergone rehabilitation treatment, but, in view of my overall assessment of the extent of the liability of the Bank and the lack of evidence regarding the treatment, I simply have no basis upon which to make any allowance for these items.

There are claims here for consultations with Dr Grove, Dr AE Seymour, Dr P.C. Goel, Dr J.M. Jones, and Dr M.E. Hamilton.  No evidence was led as to consultation with any of these doctors. 1, therefore, can make no allowance in respect of them.

There is a claim for Celestone cream.  Once again, there is no evidence, which would justify me making any allowance in respect of that item.

There is a claim for consultations with Dr Butcher, for the period from 11 November 1987 up to the present time.  There are some thirty six consultations in all, with approximately $1,000 in fees.  On the basis of what I consider would have been necessary and appropriate, but for the plaintiffs own action, and making allowance for the effects of the trial over the last twelve months, I consider that an amount of $400 would be appropriate to cover this item.

There is a claim for four consultations with Dr Cameron, between 9 September 1988 and 8 February 1990.  In view of the attitude, which I take in this matter, and on the basis of the evidence produced before me, I cannot see any justification for making allowance in relation for any of those items.

There is a claim for a cost of various drugs over the four year period, being Tranxene, Valium, Rohypnol, and Ativan.  The amounts claimed total approximately $2,750.00. There are claims for specific amounts for Prothiaden, for the period from 20 April 1992, to July 1993, totalling approximately $90.00. There is also a claim for Temazepan and Toamerin in April 1993 totalling $20.00 Finally there is claim for Rohypnol, in September 1993, $15.40.

The total in respect of the cost of drugs is, therefore, something less than $3,000.00. 1 am aware, of course, that the plaintiff has been receiving treatment for the condition of agoraphobia.  I am not aware as to the basis for, or the need for, the prescription of all of these drugs over this period.  I propose to allow an amount of $1,500.00 under this head.

The total allowance in respect to special damages, therefore, will be $1,900.00.

Finally, there would have been A need for some ongoing medical treatment, even plaintiffs own actions. medical treatment, even without the intervention of the plaintiffs own actions.  Accordingly I make an allowance of $600 for future medical treatment.

My assessment of the plaintiffs damages arising from the injuries sustained as a result of the robbery on 17 March 1988, is $32,500.00. I will hear the parties as to costs.