Perkins v Commonwealth Bank of Australia Ltd - [2003] NSWSC 346

No judgment structure available for this case.

CITATION: Perkins v Commonwealth Bank of Australia Ltd & Ors [2003] NSWSC 346

HEARING DATE(S): 11 - 22 March 2002
25 November 2002
28 November 2002

JUDGMENT DATE:
1 May 2003

JUDGMENT OF: Simpson J

DECISION: Parties to bring in short minutes of orders

CATCHWORDS: injury in the course of employment - employment agency agreement - liability of the Bank - cause of collapse of shelf - negligence - foreseeability - preventability - damages - Plaintiff's history - diagnosis - quantification of damages - general damages - out-of pocket expenses - psychological treatment - orthopaedic treatment - general practitioner - future medication - occupational therapy - physiotherapy - future travel - economic loss - superannuation - domestic assistance - modifications to the Plaintiff's home - 1st Cross-claim (amended): the Bank v Adecco - particulars of negligence - contract claim against Adecco - 2nd Cross-claim: Adecco v Commercial Union

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5
Workers Compensation Act 1987 (NSW) s66 s155
Insurance Contracts Act 1984 (Cth) s48
District Court Rules Part 12 Rule 4A

CASES CITED: Griffiths v Kerkemeyer (1997) 139 CLR 161
Kondis v State Transport Authority (1984) 154 CLR 672
Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd NSW Court of Appeal, 22 December 1994, unreported
Fox v Wood (1981) 148 CLR 438

PARTIES :
Shelley-Lyn Perkins - Plaintiff
Commonwealth Bank of Australia Ltd - Defendant/1st Cross-claimant
Adecco Centacom Pty Ltd - 1st Cross-defendant to 1st Cross-claim/2nd Cross-claimant
Commercial Union Workers Compensation (NSW) Ltd - 1st Cross-defendant to 2nd Cross-claim

FILE NUMBER(S): SC 20160/00

COUNSEL: L King SC with J Mrsic - Plaintiff
MJ Neil QC with J Gracie - Defendant/1st Cross-claimant
PM Morris - Ist Cross-defendant to 1st Cross-claim/2nd Cross-claimant
PC Sweeney - 1st Cross-defendant to 2nd Cross-claim

SOLICITORS: Carroll & O'Dea - Plaintiff
Goldrick Farrell Mullan - Defendant/1st Cross-claimant
Corrs Chambers Westgarth - 1st Cross-defendant to 1st Cross-claim, 2nd Cross-claimant
Goldbergs - 1st Cross-defendant to 2nd Cross-claim

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

1 May 2003

20160/00 Shelley Lyn PERKINS v COMMONWEALTH BANK OF AUSTRALIA LTD & Ors
JUDGMENT

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

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

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

liability of the Bank

4 In February 1997 the plaintiff responded to an advertisement placed by Adecco seeking part-time customer services officers, for work in a then unspecified bank or banks. She was engaged by Adecco to commence work in April, and deployed to work at various branches of the Bank. At that time she was not assigned to any particular branch and was, on different days, directed to work at different branches. After a time she found that she was regularly assigned to two branches, one in Forest Road, and one in a Westfield complex, both in Hurstville. The plaintiff described her duties as:

“Receiving cash from customers, counting, verifying, bundling cash, collecting coin, giving out coin orders, filling up your mobile from teller A with coin requests, cash allocations and cash requests, batching.” (T24)

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

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

7 During the afternoon of 28 August 1997, when the plaintiff attempted to extract a coin tray from the top shelf of the cabinet, the shelf collapsed and the coin trays fell on her hand and her right knee. Bundles of coins fell to the floor. In evidence in chief the plaintiff described the incident in this way:

“I was serving the overflow of some of the commercial customers and I was serving the manager of Jay Jay Jeans and I had done his banking, all of his deposits he put in and he had a coin order to be filled. So I bent down and knelt on the ground to get the coins out of the mobile and reached in across to pull the coin trays towards me that were on the top shelf and when I reached in to grab the one that was on the far right-hand side over near my partner that was in the box with me, I was pulling it back. I must have put my weight on the – weight of my hand on the heel of my hand on the shelf and the shelf collapsed in the right hand corner closest to me. …

My hand was caught in there and I pulled my hand out, as I pulled my hand out the shelf finished collapsing down and the coin trays were out onto the back of my hand and my right knee.” (Tt28-30)

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

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

the cause of the collapsing shelf

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

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

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

“It is possible the peg worked itself loose over a period of time in which case it would not have been noticed.”

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

14 A response (exhibit D) to Mr Neil’s memorandum was written on 20 November 1997 by Mr Garry Scott, who identified himself as “Property Officer, Maintenance”. Handwritten onto that memorandum, dated 24 November 1997, is the following:

“ … I think that if the bracket was not in place then the shelf would not have stayed up at all. What appears to be the real cause is that the cupboard has become ‘off square’ slightly, making the bracket slightly loose.”

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

16 The evidence to support the fracture theory was solely that of the plaintiff. In evidence in chief, in describing the incident, she was asked if she could see anything on the floor apart from coins, to which she replied:

“There was a broken clip which must have been holding the shelf up, in the right-hand corner.”

17 She said that Ms Adelina Marsic, who was then the Assistant Manager of the branch, and who came to her assistance, immediately made the observation that:

“… that must have been what happened, that the clip had broken and the shelf had broken underneath.”

18 When asked about the same subject matter in cross-examination the plaintiff replied:

“Yes. There was something on the floor that looked like a clip.”

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

20 However, on balance, and on the extremely scant evidence available, I have concluded that the broken bracket theory is to be preferred. My reasons for this conclusion are:

(i) the plaintiff’s evidence, slight though it was, that the clip was broken. She was not challenged on that assertion;

(ii) the “worked loose” theory was no more than post-incident speculation;

(iii) the absence of any indication that either Mr Neil or Mr Scott considered the possibility that the bracket had broken, or made any investigations to that effect;

(iv) evidence (to which I will come) that the weight of the coin trays was such as to cast an undue burden on a structure;

(v) the collapse occurred as the plaintiff pulled a coin tray towards her, and, probably, also applied the weight of her hand to the shelf. This suggests to me that the sudden pressure and increased weight placed upon one bracket was greater than the bracket could sustain, causing it to fracture.

* * *

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

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

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

24 Mr Henry Burn, a consulting engineer, was retained by the plaintiff’s solicitors to inspect the shelf unit. By the time of his inspection (late in 1999) the unit had been modified by the replacement of the runner and bracket system with a solid metal bar secured horizontally to the side walls of the cabinet. Nevertheless, Mr Burn was able to gain an appreciation of the original construction, which was, as I have noted above, of a conventional and familiar kind. In a report dated 17 December 1999 (part of exhibit B) Mr Burn described the unit as:

“similar to domestic shelf support systems and was not adequate for any type of industrial loading.” (T286/25)

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

“well in excess of the design capacity of the type of bracket selected to support the shelf.”

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

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

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

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

“Fairly full, I had filled them before going to lunch.” (T28-30)

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

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

“the manufacturer recommends a weight limit of up to 20kgs.”

32 There was no direct evidence of any such recommendation by the manufacturer, notwithstanding that there was in evidence (exhibit 11) a manufacturer’s specification sheet. That document contains no reference to the load-bearing capacity of the shelves or to any recommended weight limit. In this respect, a passage in the cross-examination of Mr Shiu sheds a little – but only a little – light. This was left in a somewhat unsatisfactory state. It is as well to set out the relevant passage in cross-examination in full:

33 Mr Shiu disagreed with Mr Burn’s description of the shelving unit as “domestic”. His view was:

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

34 Mr Shiu was asked to describe the type of weight that the brackets could hold before breaking and replied:

“I can only put guess, because in this place the manufacturer hasn’t stipulated the loading capacity of this particular support. But from my experience, dealing with this type of fitting, I mean my professional experience would suggest they should hold, say 20-kilo per support quite adequately.” (T426)

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

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

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

negligence

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

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

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

foreseeability

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

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

43 The evidence given by the plaintiff in this respect was in line with a statement (exhibit E) she had made to investigators as early as 20 October 1997. In that statement she said:

“Adele Marsic had been standing nearby and asked me what had happened. I told her that the shelf collapsed on my hand and she said ‘Oh God, that’s not the first time that’s happened’.

On Monday, 13 October 1997, I met in Hurstville Westfield Daryl (sic) Neil who is Central Branch Manager of the Commonwealth Bank. I told him about the circumstances of my accident. He said that this was not the first time that a shelf had fallen down. I was very distressed and told him that I was not being paid. He told me to just concentrate on getting my hand well.”

44 Both Ms Marsic and Mr Neil denied the words attributed to them by the plaintiff in this statement. On 17 November 1997 Mr Neil wrote the memorandum (exhibit C), to which I have already referred. Included in that memorandum was the following:

“I was under the impression that there had been a similar and prior incident to the shelf collapse which led to this claim. In fact, there was a similar but subsequent incident involving our staff member Bebing Ashton. Neither Ms Ashton nor any other staff member was hurt and there are no claims outstanding. This second accident involved the same cupboard.”

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

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

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

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

preventability

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

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

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

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

DAMAGES

plaintiff’s history

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“By September-October 1996, I felt like a totally different person.” (T17)

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

diagnosis

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

70 By the consent of all parties, an order was made that:

Evidence Act 1995

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

72 Late in September 1997 Dr Nigro referred the plaintiff to Dr Stuart Myers, an orthopaedic surgeon. She has remained a patient of Dr Myers since that time. Dr Myers in turn referred the plaintiff to a physiotherapist, Julia Wilde, and also prescribed medication, Prothiadin. The plaintiff found that of little assistance. She found it affected her alertness. By this time she was suffering emotionally and found herself frequently tearful. She noticed a strange sensation on the back of her hand, which she described in the following way:

“It’s like the sensation when you say somebody walked over your grave. It is a creepy sensation on the back of my hand.” (T36)

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

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

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

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

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

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

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

80 I turn now to consider the medical evidence.

81 On 5 August 1999, the plaintiff’s treating orthopaedic surgeon, Dr Myers, (a specialist hand and wrist surgeon) reported that, in the incident, the plaintiff had sustained “a crushing injury to her right hand”; he reported that she then developed:

“A Type 1 complex regional pain syndrome (reflex sympathetic dystrophy).”

82 In his report of 5 August 1999 Dr Myers recounted the plaintiff’s condition as follows:

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

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

84 Dr Myers went on to outline the results of his examination. He did so in the following terms:

“On examination of the left arm there was widespread tenderness extending from the interphalangeal point to the distal third of the forearm. There was a degree of guarding on the part of the patient and it was difficult to interpret exactly where the major source of pain was arising from. There was a positive basal thumb grind test and a weakly positive Finkelstein’s test initially. There was altered sensation in the superficial radial nerve distribution. The patient appeared particularly anxious and this exacerbated her perception of symptoms.

After an injection of local anaesthetic and steroid into the left thumb carpometacarpal joint, there was improvement in symptoms in the left forearm by about 75%, suggesting that the major cause for these symptoms was basal thumb arthritis. When the wrist was re-examined with the anaesthetic in place, the Finkelstein’s test was then negative and there was only mild irritability in the metacarpophalangeal joint of the thumb.”

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

86 Dr Myers attached to this report a two page document concerning the condition he diagnosed, “complex regional pain syndrome” (or “CRPS”), previously referred to as “reflex sympathetic dystrophy” (or “RSD”). The information contained in that document included four main features characteristic of the condition. These are severe pain, swelling, stiffness, skin discolouration or abnormal sweating. The document also contained the following:

“The pain in a CRP is disproportionate to the injury or stimulus applied. It does not mean that it is not real. It may extend to a [the balance of the word is obscured] the whole arm or leg. The pain may be of a ‘burning’ quality.

CAUSE

… It is believed that there is a chemical change at the spinal cord level which ‘sensitises’ the pain recptors (sic). When the pain receptors are sensitised even light touch on the skin can become a painful stimulus.

…

With a CRP the +ve effect at the spinal cord level may be very prolonged or even permanent. This does not imply that you are dreaming up the pain. The pain is very real and there are definite chemical changes at the spinal cord level. A secondry (sic) effect of a CRP may result in abnormal firing of the sympathetic nerves. The sympathetic nerves are not normal nerves for feeling sensation or for causing muscles to contract. Rather, the sympathetic nervous system is used for controlling the heart rate, causing hairs to stand on end and causing sweating and colour changes in the skin. The sympathetic nerves are ‘automatic’ nerves over which we have little direct control.

A CRP may be triggered by a variety of causes such as minor trauma or even surgery. It not infrequently follows trauma to nerves. It appears to occur more frequently in patients who are anxious or depressed although this is certainly not always the case. There may be a genetic predisposition to this condition which may run in families.”

87 On 23 June 2000 Dr Myers reported again, confirming his previous diagnosis. He wrote that it was extremely difficult to comment on the cause of her apparent disability, not having seen the plaintiff before the incident of August 1997. However, having reviewed some records of the plaintiff’s previous medical history (to which it will be necessary to come), Dr Myers wrote:

“ … one could conclude that there was significant potential for ongoing chronic pain phenomena affecting the right upper limb. This may have been of an intermittent nature. There may have also been the potential for a personality type predisposed to chronic pain phenomena. From the history that I obtained, it would seem that the complex regional pain syndrome affecting the right hand was caused by the crushing injury at work as described.”

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

89 In November 1998 the plaintiff was referred by her solicitors, for medico-legal purposes, to Dr G David Champion, a consultant physician in rheumatology and pain medicine at the St Vincent’s Clinic. Dr Champion examined the plaintiff on 30 November 1998, 12 October 1999 and 26 May 2000. In his first report, dated 14 January 1999, Dr Champion took issue with Dr Myers’ diagnosis of RSD. He wrote:

“She has not had acute regional osteoporosis and I have not identified sympathetically maintained pain or sympathetic hyperactivity. However, at an early stage she may have had features of reflex sympathetic dystrophy. In any event, it is not necessary to achieve the criteria for that disorder to understand and accept this as an important post-injury pain disorder. The allodynia phenomena are impressive and are characteristic of post-injury reactions in susceptible people (the biological susceptibility to this disorder has not been adequately sorted out). It is not a psychologically caused disorder. Her adjustment disorder with depressed mood is clearly secondary to the injuries, chronic pain and related problems.

This is a severe disorder and Mrs Perkins has been unfit for work from the time of the injury and it does not appear likely that she would be able to return to the workforce in the foreseeable future. Unfortunately, it is the kind of disorder that does not respond well to medical or other treatment nor will it resolve quickly or progressively in the natural history. Even if there is eventual slight and gradual improvement, she will retain a susceptibility to exacerbation on relatively minor provocation. … There is I believe permanent loss of efficient use of the right arm below the elbow of the order of 50%. The overuse disorder in the left upper limb is a secondary consequence to the right hand injury and there is probably permanent loss of efficient use in the left arm below the elbow of the order of 12.5%.”

90 In a second report, dated 13 October 1999, Dr Champion wrote:

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

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

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

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

94 These assessments of the plaintiff’s condition stand in marked contrast to those provided on behalf of the Bank. Dr Ernest Somerville, a consultant neurologist, examined the plaintiff at the request of the Bank’s solicitors on 30 May 2000 and again on 2 November 2001. He recorded the plaintiff’s complaints in terms similar to those of Drs Myers and Champion. In recounting the results of his physical examination he described the plaintiff as “cheerful” while delivering her history, “but not during the examination”. He observed no asymmetry or abnormality of colour, temperature or sweating in either hand, and noted that the plaintiff frequently hyperventilated during the examination. He wrote that she:

“appeared to be in agony when the lightest possible touch was applied to the dorsum of the right hand or when it was tested with pin pricks. … All movements of the fingers of the right hand appeared to produce agony.”

95 In short, the description of the result of his examination drew a clear contrast between the plaintiff’s history and complaints and Dr Somerville’s own examination. He went on to express his opinion in the following terms:

“I am unable to explain this lady’s symptoms on any plausible neurological basis. She suffered an injury which would be expected to produce at most a bruise of the hand but has been left with intractable agonising pain. There is nothing to suggest any peripheral nerve injury. There are no objective abnormalities on neurological examination. The condition known as reflex sympathetic dystrophy and various newer labels, when not associated with a peripheral nerve lesion, is not universally accepted by neurologists as an organic neurological disorder. There are no objective findings and no satisfactory explanation for the symptoms that Mrs Perkins describes. I am not convinced that there is any neurological disorder.”

96 In his second report Dr Somerville gave an account of the plaintiff’s complaints similar to that given in the first report. He concluded the second report with the following:

“Her complaints are similar to those reported at the previous visit. Examination findings are similar to those of the previous visit, with a complete lack of any objective neurological findings. There have however been some changes in the examination. Where a sensation on the previous occasion over the palma surface of the hand was normal, pin prick sensation today was markedly increased over the palma surface of the right middle finger. I am unable to explain how flexing the elbow against resistance, with my hand holding the forearm, proximal to the wrist, produced agonising pain in the hand.

Once again, I am unable to explain Mrs Perkins’ symptoms on any plausible neurological basis. I am not convinced that there is any neurological disorder.”

97 Dr Richard Sekel, a consultant in occupational medicine, also examined the plaintiff at the request of the Bank’s solicitors, on two occasions, 5 June 2000 and 2 April 2001. He provided reports in relation to each of these examinations, and a third report, dated 6 June 2001, reviewing comprehensive documentation that had been provided to him. His observations and opinion were similar to that of Dr Somerville. Of his physical examination of the right hand Dr Sekel wrote: (5 June 2000)

“There was no visible or palpable abnormality of the right hand, but it was very difficult to examine the hand as she complained of extreme tenderness to even fingertip touch over the right middle finger, effectively refusing to permit me to touch it. Briefly touched, the right middle finger was equally warm to the remaining fingers of both the right and the left hands, circulation, sweat and colour were also normal and equal in all areas of both hands. Skin texture appeared normal, and there was no wasting of either hand, the circumferences being equal at 19 cm.

She refused absolutely to mobilise any joint of the fingers of the right hand.

Sensation of light touch and pin prick were difficult to assess because of her extreme reactions, but appeared to be normal.”

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

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

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

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

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

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

“Following intensive questioning, Mrs Perkins eventually admitted today that she had had symptoms in a similar area of her right hand for an extensive period (approximately ten years) between 1985 and approximately 1995, which she related to the two injuries of 1985 and 1987 respectively, that were described in my earlier report of 5/6/00. The right hand symptoms on that occasion included tingling in the right fourth and fifth fingers.”

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

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

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

107 In oral evidence Dr Champion identified the condition as:

“a post injury disorder, a complex regional pain syndrome with sufficient features for her to fulfil the criteria …” (T 360)

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

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

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

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

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

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

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

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

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

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

118 His later reports were either restatements of the first, or directed to issues not currently the subject of consideration. Late in 1999 the plaintiff’s solicitors referred her to Dr Peter Morse, a consultant psychiatrist, for medico-legal purposes. Dr Morse’s opinion was that the plaintiff was suffering:

“Quite severe, extreme physical symptoms and quite marked disability from a crush injury …”

“There is no doubt that due to a combination of events, the initial experience of the injury, the ongoing physical symptoms and disability, the reaction in the workplace, the effect it has had on her family and a feeling of dependence and depression as described above and discussed further below, there are psychological and emotional factors playing a part in the ongoing process of her pain experience. This not to say that psychological or emotional factors are the cause of her pain but certainly they are making it worse and causing quite marked distress augmenting the pain. She is certainly trying to make an effort to appear brighter and better than, I believe, she actually feels and as she said, trying to have a new attitude towards the pain. I don’t believe there is any evidence of malingering or overemphasis or exaggeration of her state.”

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

“Given the severely disabled nature of her condition she certainly wouldn’t choose this way of living.”

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

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

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

123 Having been provided with a large number of reports which he identified in his second report, Dr Maguire made a number of comments for the benefit of the Bank’s solicitors. He noted that on examination in February 2000 the plaintiff had told him that prior to the August 1997 injury she had been physically well, was working, was managing the household, was assisting with running the farm, and cooking for the shearers.

‘total and permanent disablement’

‘has not improved with treatment … not expected to make significant improvement’

124 Dr Maguire also noted that the plaintiff had told him that she had not suffered any nervous or emotional problems prior to the injury in 1997 but said that Dr Connelley had been told in July 1995:

“… she often suffers depression and sleeplessness as a result of these symptoms … she admitted having been addicted to Percodan in the early days after her injury.”

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

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

127 Dr Maguire then wrote:

“Given that the physical complaints appear identical to those recorded only twelve months before the injury it would be my impression that the injury may have led to a temporary increase in physical discomfort but would not have influenced the long term prognosis given the high probability that her complaints had been in place for ten years at the time of the accident. As noted, it is a matter for the relevant specialist to discuss in what way and to what degree the 1997 injury has influenced the underlying pathology.

Mrs Perkins was already depressed because of her pain and inability to participate in various domestic and farm related activities before the work injury in 1997 and one would have expected this depression to have continued after that event. Therefore, while there may have been a temporary increase in the intensity of depressive feeling, one would have to conclude that Mrs Perkins was already ‘reactively’ depressed and suffering from an ‘adjustment disorder with depressed mood’ prior to 1997.”

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

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

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

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

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

133 For the purposes of considering this aspect of the matter, the earlier of these medical reports may be put to one side. However, the Bank pointed to a number of medico-legal reports written in 1995 and 1996 which are of considerable relevance. For example, on 7 June 1995, Dr Jerome Goldberg, an orthopaedic surgeon who had seen the plaintiff on 1 November 1994, wrote:

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

the contract claim against Adecco

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

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

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

280 Other relevant clauses are:

“3.1 [Adecco] shall be responsible for the training of applicants and candidates to work as ACSO’s.

4.1 ACSO’s shall be employed by [Adecco] on the terms and conditions shown in Schedule Two and on such other terms and conditions not imcompatible therewith as [Adecco] determines.

4.7 The Bank is responsible for all acts, errors and omissions of ACSO’s, whether negligent, wilful or otherwise, during any assignment to the Bank and agrees to indemnify [Adecco] against any claims arising therefrom …

6.1 [Adecco] is responsible for compliance with the provisions of all laws, awards and industrial agreements relating to ACSO’s conditions of employment.

6.2 The Bank is responsible for compliance with the provisions of all laws, awards and industrial agreements relating to ACSO’s conditions of work in the Bank.

6.3 [Adecco] shall effect and maintain workers’ compensation insurance for ACSO’s in the name of [Adecco] (with the Bank’s interest noted thereon) according to respective State and Territory laws and giving unlimited Common Law cover where applicable and shall provide a certificate of currency from the insurance company to the Bank within 28 days of the date of signing of this Agreement and shall thereafter provide certificates of currency from the insurance company to the Bank within 28 days of each anniversary of the policy.

6.4 The Bank shall be responsible for effecting any fidelity, professional indemnity and public liability insurance which the Bank requires for ACSO’s and the Bank shall insure that any such policy or policies contain a subrogation waiver in favour of [Adecco] except in respect of [Adecco’s] own negligent or wilful acts or omissions.

8.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous communications, negotiations, arrangements and representations, oral or written, between the parties with respect to the subject matter of this agreement.

8.2 No agreement or understanding altering or extending this agreement shall be legally binding upon either party unless in writing and signed by both parties.”

(The punctuation is reproduced as in the original.)

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

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

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

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

285 A second Mutual Understanding was signed by the parties in April 1993 and effectively cancelled that of August 1992. In this document it is stated that those ACSOs employed by the Bank and managed by Adecco during the trial period were to be transferred to the employment of Adecco, effective 5 April 1993. Attached to the document recording the mutual understanding are amendments to various Schedules to the Agreement. Schedule Two of the Mutual Understanding records amendments to Schedule Two of the Agreement. Clause 6 of Schedule Two is in the following terms:

“[Adecco] will effect and maintain workers’ compensation insurance… for ACSO’s as required by law.”

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

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

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

289 At the conclusion of the evidence, and before the commencement of addresses, attention was directed to some housekeeping matters. Although senior counsel for the Bank had earlier closed his case on the cross-claim, the transcript at 431 records him saying the following:

“I may need to prove a negative, I think we could get agreement. Our case against Adecco is that they were contractually bound to get the Bank insured for workers’ compensation with common law extensions. My instructions are that did not happen, in other words they didn’t take it out. If my friend can admit that, it will save me having to call on notices to produce to show that there is no such policy.”

290 Immediately thereafter the court adjourned for the day. The following morning counsel for the parties to the first cross-claim returned to a discussion about what was called “a concession” to be made on the part of Adecco. After making some observations which did not, it seemed and seems to me, take the matter any further, counsel for Adecco said:

the only policy which Adecco relevantly obtained was workers’ compensation insurance

291 A little later he repeated the concession in similar terms. It is clear from the concession that Adecco made no insurance arrangements with respect to common law liability. Counsel made no concession that the policy that was taken out failed to note the Bank’s interest. Senior counsel for the Bank then called for and tendered (exhibit 19) a notice to produce served on its behalf on Adecco and requiring production of:

“1. All policies of insurance taken out by Adecco covering liability for inquires (sic) occurring in New South Wales to Adecco employees working on Commonwealth Bank of Australia premises for the period 31 April 1995 – 30 June 2000.”

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

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

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

295 Senior counsel for the Bank referred me to s48 of the Insurance Contracts Act 1984 (Cth). S48 is in the following terms:

Entitlement of named person to claim

(1) Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person’s loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract.

(2) Subject to the contract, a person who has such a right:

(a) has, in relation to the person’s claim, the same obligations to the insurer as the person would have if he were the insured; and
(b) may discharge the insured’s obligations in relation to the loss.

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

297 Senior counsel did not then allude to s9, which excludes from the operation of the Act contracts:

“entered into … for the purposes of a law (including a law of a State or Territory) that relates to workers’ compensation.”

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

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

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

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

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

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

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

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

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

307 For the reasons I have given the Bank succeeds on the first cross-claim.

the second cross-claim: Adecco v Commercial Union

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

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

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

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

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

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

314 In the Court of Appeal the employer argued that the workers’ compensation policy covered it against liability to the lessor. The Court of Appeal unanimously rejected the argument. Kirby P (as his Honour then was) wrote:

“This claim must be rejected. The phrase in the policy is of long standing. This is plain. It is to provide an indemnity to an employer for common law liability to a worker qua worker. It is not to provide indemnity to the employer in respect of every other way in which the employer might be liable to other persons, as by a promise in a contract of lease. The judgment against the employer as third party rested entirely upon the employer’s contractual liability under the lease. It was based on the exceptional provision of that document. The workers’ compensation policy issued by the insurer to the employer did not respond to such a liability.”

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

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

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

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

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

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Last Modified: 05/05/2003

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Citations

Perkins v Commonwealth Bank of Australia Ltd [2003] NSWSC 346

Most Recent Citation

Perkins v Commonwealth Bank of Australia Ltd [2003] NSWSC 761

Cases Citing This Decision

1

Perkins v Commonwealth Bank of Australia Ltd [2003] NSWSC 761

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5

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4

Griffiths v Kerkemeyer [1977] HCA 45

Bird v DP (a pseudonym) [2024] HCA 41

CITATION:	Perkins v Commonwealth Bank of Australia Ltd & Ors [2003] NSWSC 346
HEARING DATE(S):	11 - 22 March 2002 25 November 2002 28 November 2002
JUDGMENT DATE:	1 May 2003
JUDGMENT OF:	Simpson J
DECISION:	Parties to bring in short minutes of orders
CATCHWORDS:	injury in the course of employment - employment agency agreement - liability of the Bank - cause of collapse of shelf - negligence - foreseeability - preventability - damages - Plaintiff's history - diagnosis - quantification of damages - general damages - out-of pocket expenses - psychological treatment - orthopaedic treatment - general practitioner - future medication - occupational therapy - physiotherapy - future travel - economic loss - superannuation - domestic assistance - modifications to the Plaintiff's home - 1st Cross-claim (amended): the Bank v Adecco - particulars of negligence - contract claim against Adecco - 2nd Cross-claim: Adecco v Commercial Union
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5 Workers Compensation Act 1987 (NSW) s66 s155 Insurance Contracts Act 1984 (Cth) s48 District Court Rules Part 12 Rule 4A
CASES CITED:	Griffiths v Kerkemeyer (1997) 139 CLR 161 Kondis v State Transport Authority (1984) 154 CLR 672 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd NSW Court of Appeal, 22 December 1994, unreported Fox v Wood (1981) 148 CLR 438
PARTIES :	Shelley-Lyn Perkins - Plaintiff Commonwealth Bank of Australia Ltd - Defendant/1st Cross-claimant Adecco Centacom Pty Ltd - 1st Cross-defendant to 1st Cross-claim/2nd Cross-claimant Commercial Union Workers Compensation (NSW) Ltd - 1st Cross-defendant to 2nd Cross-claim
FILE NUMBER(S):	SC 20160/00
COUNSEL:	L King SC with J Mrsic - Plaintiff MJ Neil QC with J Gracie - Defendant/1st Cross-claimant PM Morris - Ist Cross-defendant to 1st Cross-claim/2nd Cross-claimant PC Sweeney - 1st Cross-defendant to 2nd Cross-claim
SOLICITORS:	Carroll & O'Dea - Plaintiff Goldrick Farrell Mullan - Defendant/1st Cross-claimant Corrs Chambers Westgarth - 1st Cross-defendant to 1st Cross-claim, 2nd Cross-claimant Goldbergs - 1st Cross-defendant to 2nd Cross-claim