Mary Mckenna v Australian Capital Territory Health Authority and Limro Pty Limited [1989] ACTSC 30 (30 June 1989)

SUPREME COURT OF THE ACT

MARY McKENNA v. AUSTRALIAN CAPITAL TERRITORY HEALTH AUTHORITY and LIMRO PTY
LIMITED.
S.C. No. 995 of 1986
Negligence

CATCHWORDS

Negligence - employer and employee - negligence of independent contractor's employee - whether employer and independent contractor both liable - whether employer entitled to indemnity from contractor - damages - whether plaintiff guilty of contributory negligence - no new question of principle involved.

The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40

Sungravure Proprietary Limited v. Meani [1964] HCA 16; (1963-64) 110 CLR 24

The Commissioner of Railways v. Ruprecht [1979] HCA 37; (1979) 142 CLR 563

Penny v. Wimbledon Urban Council (1899) 2 QB 72

Hayes v. Baumann's Cafe (1911) 11 SR (N.S.W) 372

McInnes v. Wardle [1931] HCA 40; (1931) 45 CLR 548.

Cervellone v. Besselink Bros. Pty. Ltd. (1984) 55 ACTR 1

HEARING

CANBERRA
30:6:1989

ORDER

There be judgment for the plaintiff against the defendants in the sum of $250,126.86.

The defendants pay the plaintiff's costs of and incidental to the suit, those costs to be taxed.

The secondnamed defendant pay the firstnamed defendant's costs of and incidental to the suit, those costs to be taxed.

If the plaintiff recover from the defendant the Australian Capital Territory Health Authority any amount on account of damages and/or costs for which that defendant has been found liable, then it shall be at liberty to enter judgment against the defendant Limro Pty Limited for the total sum recovered from it by the plaintiff with costs for entering such judgment, those costs to be taxed and shall have liberty to apply in respect of any interest which the Court determines should be payable under s.53A of the Australian Capital Territory Supreme Court Act 1933 in respect of that sum.

The secondnamed defendant's claim for contribution or indemnity against the firstnamed defendant be dismissed.

DECISION

This is a claim for damages arising out of an accident which took place on 12 July 1985. In opening, counsel for the plaintiff said:-
"She fell when coming out of a room within

the hospital in which she worked. She
tripped over an electrical cord which led
from a power point on one side of the door to
a floor polishing machine up the corridor so
that the cord was going across the doorway.
She, of course, cannot say just how high the
cord was above the floor because she did not
see it until she fell and felt it wrap,
effectively, around her legs. But the feel
that she had as she fell was that it was
above floor height, that it was not just
lying on the floor."

2. The plaintiff alleged that in the circumstances it was the duty of the first defendant, her employer, who operated the Woden Valley Hospital where the accident occurred, to take all reasonable precautions for her safety, not to expose her to a risk of damage or injury of which it knew or ought to have known, to provide and maintain adequate and suitable plant, tackle and appliances to enable the plaintiff to carry out her work in safety and to take all reasonable measures to ensure that the place where she carried out her said work was safe and to provide and maintain a safe and proper system of work.

3. She gave as particulars of the first defendant's negligence the following:-

(a) Failing to take any or any adequate pre-
cautions for the safety of the plaintiff
while she was engaged on the said work;
(b) Exposing the plaintiff to a risk of
damage or injury of which it knew or
ought to have known;
(c) Failing to provide or maintain adequate
or suitable plant, tackle and appliances
to enable the plaintiff to carry out the
said work safely;
(d) Failing to warn the plaintiff of the
presence of an electrical cord stretched
across the said doorway;
(e) Failing to instruct the secondnamed
defendant to erect signs warning passers by
of cleaning operations;
(f) Failing to provide a safe place of work;
(g) Failing to provide or maintain a safe
and proper system of working."

4. She alleged against the second defendant that its employee was operating an industrial polisher near the entrance and exit door of the formula room on the 6th floor of the Woden Valley Hospital, that an electrical cord attached to that polisher was stretched across the doorway, that she attempted to leave that room in which she had been working and that as she did so she tripped over the cord, fell and was injured. She claimed that the second defendant was negligent in the following respects:-

(a) Failing to take any or any adequate
precautions for the safety of the plaintiff
while she was engaged on the said work;
(b) Exposing the plaintiff to a risk of
damage or injury of which it knew or
ought to have known;
(c) Failing to warn the plaintiff of the
presence across the said doorway of an
electrical cord;
(d) Carrying out polishing operations in the
vicinity of the said doorway without
ensuring the doorway was cleared and
that the electrical cord did not have to
be stretched across it."

5. The plaintiff was born on 23 March 1928 and was therefore aged 57 on 12 July 1985. She began to work in the nursing profession in 1944, eventually completing her general training at St Vincent's Hospital at Bathurst in 1948. Until 1974 she worked continuously at her profession in various places. In May 1974 she began to work at the Woden Valley Hospital on the 6th floor which was the maternity floor. She was a Grade 1 nursing sister at the time of the accident. Her duties involved making up formulas and lecturing mothers on feeding and on feeding problems. She gave evidence that she would have hoped to work until she was 65 if allowed to continue nursing until then although she had the option of retiring when she reached her 60th birthday. She had never married and felt responsible for caring for her aged father and her younger invalid sister. I accepted her as a truthful witness and a woman of strong character.

6. On 12 July 1985 the plaintiff was leaving the formula room intending to turn right into a corridor immediately outside that room and go to Ward 6A. She expected to pass on her left two corridors which formed T-Junctions with the one along which she intended to pass. One of them she described as being almost immediately outside the formula room, and the other as "about 10 or 12 metres up". There was a power point located on a wall of the corridor immediately to the left of the door giving access to the formula room as one left it. The plaintiff said that the power point was about 15 centimetres from the doorway. It is clear from exhibits F and 5 that it was more probably some 45 centimetres or so from the edge of the doorway.

7. Asked what had happened as she came out the door, the plaintiff described the accident as follows:-

My feet became entangled in a polishing cord
and I - both feet became entangled and I
stumbled across the corridor into a
immediately a left corner of the glass
partitioning door and crashed heavily on my
left knee."

8. She first became aware of the existence of the power cord as she fell. She had received no warning about its presence and was not aware that anybody was engaged in polishing further up the corridor. She gave evidence that the power point in question was at a height above the floor about level with her mid thigh. It seems clear, and I so find, that it was between 60 and 90 centimetres above floor level.

9. She said that after she had fallen to the floor she saw the cord plugged into the power point mentioned. She estimated the distance between her and Mrs Peresan who was operating the buffer at approximately 8 metres, perhaps more, at the time of the accident.

10. The plaintiff gave evidence that when she fell she called to Mrs Peresan, "Flavia". She said that when she first called out Mrs Peresan did not respond and that she called out two or three times before Mrs Peresan could hear her over the noise of the polisher. When Mrs Peresan did hear her she turned off the polisher and came running down to her.

11. I am satisfied that the plaintiff did not see the cord in her path as she left the formula room and that she had no notice of its presence in that position. Cross-examined, the plaintiff agreed that on the date of the accident she had described it in writing as follows:

"TRIPPED OVER polishing machine electric cord
which was lying across doorway of formula
room."

12. In a written statement made the same day Mrs Peresan described the accident:

"I had been using the polishing machine in
the corridor and had gone to unplug the
cord. Sister McKenna came out of the formula
room and slipped over the cord. I tried to
catch her but was unable to do so."

13. Mrs Peresan gave evidence.

14. She said that on the morning in question she was using an industrial polisher on the floor of the corridor down which the plaintiff planned to walk. It had an orange cord. She was asked, "What do you say about that orange cord?" She replied, responsively, but no doubt unexpectedly, "Putting your foot on it, it is easy to slip on". She said that she had put the plug of the machine into the power point near the formula room, that to which I have referred, and continued polishing, moving away in the direction in which the plaintiff intended to go as she left the formula room. It was her habit, she said, and I accept, to stop at various points during the course of her polishing duties to change the power point position. Having gone some distance up the corridor, she said she stopped near a pan room and returned then to pick up the cord. By this I understood her to mean that she must have stopped and switched the polishing machine off and was returning to the power point near the formula room so that she might retrieve the plug which had been inserted into it so that she could insert it into another power point further along the corridor near the pan room.

15. She was asked what happened then and said that when she was about to return Sister McKenna came out from the formula room. She saw the plaintiff's foot on the cord and said, "Sister be careful". Asked to go on she said that, "the sister was already on the floor ..... in the corridor". She said that she went to help the plaintiff get up and said to her, "Sorry, Sister, it is my fault". The plaintiff replied, she said, "No, Flavia, it is my fault. ..... Not looking where I was putting my feet". She said that she tried to help the plaintiff to get up but she could not stay on her feet and asked Mrs Peresan to call Sister Ellis. This she did and a wheelchair was brought. The plaintiff was taken to casualty.

16. Mrs Peresan then said that she retrieved the plug from the power point near the formula room. She described the cord at that time as coming straight down from the power point to the floor and said that the cord itself was lying on the floor about a foot in front of the door. She plainly meant the doorway through which the plaintiff had come. She described the cord as lying in a circle on the floor, "straight down from the power point". By this I understood her to mean that the cord formed circles directly below the power point. She said that the cord followed behind her releasing slowly from the circles up to the polishing machine as she was going forward.

17. In cross-examination she agreed that when polishing she allowed the machine to pull the cord along as it moved from side to side across the corridor in a slow motion always facing down the corridor, that is to say, in the direction of which she was moving.

18. Mrs Peresan said that she was about five metres down the corridor when the plaintiff came out through the doorway. She confirmed in cross-examination that what she had said in the written statement referred to earlier was true. In explanation of the statement that she had tried to catch the plaintiff but was unable to do so, she said that she had stopped the machine and was returning to get the cord, that is, to unplug the cord, and had made the first step with that purpose in mind.

19. She gave evidence and I accept that she said to the plaintiff in English immediately after her fall, "Sorry, Sister, its my fault". It was suggested to her that she had made that admission because she knew that the plaintiff had tripped over the cord which was not lying exactly on the ground. She denied that. She said thereafter, "She put her foot on the cord and I saw her foot on the cord when she fell forwards". Asked whether the plaintiff's foot had slipped forward from under her when it had been placed on the cord, she said that she did not know because she only saw the plaintiff fall down in a heap. Later she said, "She (the plaintiff) had one foot forward and one foot was back and she fell with her hands first. She noticed a little bit of cord under the plaintiff's leg after she had fallen. She also said that she had looked to see the position of the cord on the floor and that she had pulled out the plug. It was suggested to her that the plaintiff had not said to her, "No, Flavia, it is my fault, I did not look where I was putting me feet". But she insisted that she had done so. She also said that she had looked at the position of the cord after the accident because she was worried that her boss might ask her about what had happened. She insisted that she had called out to the plaintiff, "Be careful of the cord".

20. It was then put to her that the plaintiff had fallen on the floor while she was still operating the machine up the corrider, that the plaintiff had called out to her and that she came because she heard her call out. She replied, "Yes, I was turning around to go back to get the cord when Sister McKenna trod on the - put her foot on the cord, and I said, 'Be careful of the cord'". She agreed that the plaintiff had called out to her by name. She elaborated by saying, "I heard her call out, 'Flavia', and while I was stopping machine and turning to go back I heard Sister McKenna call, "Flavia". Then I saw her foot on the cord as I was returning to go back and then I say, "Sister, be careful of your foot on the cord".

21. Mrs Peresan also said that nobody had ever tripped over the cord and that she warned people walking up and down the corridors when she was polishing to look out for the cord, taking the view, apparently, that there was a danger that if someone put his or her foot on the cord, he or she might slip on it while she was polishing. She also said that when she was using the polishing machine and heard people coming up behind her she would tell them to watch out for the cord. The machine in question was quite noisy when operated.

22. Under consideration of all the evidence, I am satisfied that Mrs Peresan did not see the plaintiff fall but has come to believe that she did. I accept the plaintiff's evidence that immediately after she fell she called out to Mrs Peresan and that at that moment she could see Mrs. Peresan who could not see her since she had her back to her. Mrs Peresan's evidence that she heard the plaintiff call her by name and the plaintiff's evidence that she did just that, having to call more than once because of the noise of the machine, evidence which I accept, satisfies me that the plaintiff's version is the more acceptable. The plaintiff's description of the accident, that both her feet became entangled in the polishing cord when she stumbled across the corridor, is consistent, I think, with her having tripped over the polishing cord when it was some, perhaps only a little distance, off the floor. It is difficult to see how her feet could have become entangled in the polishing cord if it was lying flat on the floor. I am satisfied on the balance of probabilities that the accident happened because the plaintiff's feet became entangled in the cord which was at that time lying stretched so that it was not in immediate contact with the floor at the point where the plaintiff's feet became so entangled.

23. The question is whether Mrs Peresan was negligent in operating the machine so that the cord was raised a little distance from the floor in circumstances where anybody entering the corridor from an adjacent room might easily trip over it.

24. In The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40, Mason J. (as he then was) said at pp 47-8:

"In deciding whether there has been a breach
of the duty of care the tribunal of fact must
first ask itself whether a reasonable man in
the defendant's position would have foreseen
that his conduct involved a risk of injury to
the plaintiff or to a class of persons
including the plaintiff. If the answer be in
the affirmative, it is then for the tribunal
of fact to determine what a reasonable man
would do by way of response to the risk. The
perception of the reasonable man's response
calls for a consideration of the magnitude of
the risk and the degree of the probability of
its occurrence, along with the expense,
difficulty and inconvenience of taking
alleviating action and any other conflicting
responsibilities which the defendant may
have. It is only when these matters are
balanced out that the tribunal of fact can
confidently assert what is the standard of
response to be ascribed to the reasonable man
placed in the defendant's position.
The considerations to which I have referred
indicate that a risk of injury which is
remote in the sense that it is extremely
unlikely to occur may nevertheless constitute
a foreseeable risk. A risk which is not far
fetched or fanciful is real and therefore
foreseeable. But, as we have seen, the
existence of a foreseeable risk of injury
does not in itself dispose of the question of
breach of duty. The magnitude of the risk
and its degree of probability remain to be
considered with other relevant factors."

25. It seems to me that the first question to be asked must yield an affirmative answer. Mrs Peresan, acting reasonably, should have foreseen that her conduct in using the polisher with the cord not lying flat on the floor adjacent to a doorway was such as to involve a risk of injury to the plaintiff or to anybody else coming out of a room by such a doorway. The next question is what should she have done as a reasonable person by way of response to the risk? The answer, I think, is that she should have ensured that the cord was lying flat on the floor. This was not a matter of any particular difficulty as the evidence of the tendency of the cord to drop perpendicularly to the floor from the power point showed. It involved no expense, difficulty or inconvenience and could easily have been carried out. The fact that there had been no accident involving the machine operated by Mrs Peresan for a period of eleven years indicates that the likelihood of such an accident occurring when the cord is lying flat on the floor, was very remote. But it takes little imagination to see that if the cord were not lying flat on the floor, somebody could easily trip over it. In my opinion there was a duty upon Mrs Peresan and hence upon those employing her to ensure that at all times the cord was lying flat on the floor. In saying this I am not suggesting that it was appropriate that there should have been a warning given that the machine was being used and that accordingly care should be taken in respect of the cord when lying flat on the floor, but if the cord were lifted off the floor, it seems P]N to me that the risk was obvious and should have been guarded against.

26. In the circumstances, therefore, I am satisfied that the second defendant was negligent through its servant or agent, Mrs Peresan and that that negligence caused the plaintiff damage.

27. Both defendants have pleaded that the plaintiff was guilty of contributory negligence. The first defendant gave as particulars that she:

(a) failed to take reasonable and/or
adequate care for her own safety and
well being;
(b) failed to pay any or any adequate
attention to the activities or other
people around her; and
(c) failed to be aware of and/or to be in a
position where she ought to have been
aware of the presence of the polisher."

28. The second defendant particularised a failure to keep a proper lookout and a failure to avoid an area of potential danger.

29. In my opinion, the plaintiff was not guilty of contributory negligence. The evidence was that Mrs Peresan had used the polisher for at least eleven years without there having been any accident and I think that in those circumstances, persons entering a corridor where the polisher was being used were entitled, even had they had their attention directed to the fact that the polisher was in use, to proceed on the basis that the cord was not in other than its usual and proper position, that is, flat on the floor. Had it been so, I do not think the accident would have happened. Even if there had been momentary inattention on the plaintiff's part that would, I think, have been that inattention bred of familiarity which would excuse her: see Sungravure Proprietary Limited v. Meani [1964] HCA 16; (1963-64) 110 CLR 24, particularly at p 37, per Windeyer J. See also The Commissioner of Railways v. Ruprecht [1979] HCA 37; (1979) 142 CLR 563.

30. In the fall the plaintiff sustained a comminuted fracture of the left patella. She was taken to the operating theatre at the hospital the same day and a left patellectomy was performed by Dr Peter Morris, an orthopaedic surgeon. A plaster was applied to the leg. It was exchanged a week or ten days later for a full leg plaster but in the meantime she had had severe left leg and left hip pain which extended down to her left toes. The pain, she said, increased desperately and was much more intense than any sciatic pain she had previously experienced. I will return to this question of previous sciatic pain later. She was referred to Dr Chandran, a neurosurgeon, who had a CAT scan performed on 26 August 1985. It showed a diffuse bulge at the L3/4 level of the lumbar spine where a broad base bulge at the L4/5 level was more pronounced on the left side, compressing the L5 nerve root. The L5/S1 level seemed normal. A radiculogram on 30 August 1985 gave similar information.

31. On 31 August 1985 Dr Chandran carried out a left-sided laminectomy at the L5 level, excising the L4/5 disc bilaterally and decompressing the nerve at the L5/S1 level. The plaintiff's pain gradually improved after the surgery and she was discharged home. But when reviewed by Dr Chandran on 29 November 1985 she said that she had been steadily improving until about two weeks earlier when she began to develop some pain in the right hip and the sacro-iliac region. When reviewed again on 2 December 1985 she was able to walk without a stick which she had previously used but complained of pain over the sacro-iliac region. She then had no pain in the left leg. However, January 1985 she was admitted to hospital under the care of Dr Robson, also a neurosurgeon, in Dr Chandran's absence, with an acute episode of left-sided sciatic pain. Dr Robson performed a myelogram on, apparently, 9 January 1986. He diagnosed compression of the L5 nerve root and advised surgery to relieve that compression. The plaintiff did not take the advice, but sought a second opinion.

32. Eventually, on 6 February 1986 in Sydney, Dr John Sheehy, another neurosurgeon, performed another laminectomy to decompress the left L5 nerve root. For a week the plaintiff was fine but then again developed right leg pain. She required further surgery for a reconstruction of the left quadriceps muscle and this was performed by Dr F.W. Robertson at St. Vincent's Private Hospital on 1 May 1986. She needed a heavy plaster for several weeks and this aggravated her back condition. She spent two months in that plaster. By 1 September 1986 Dr Sheehy had done all he could to improve her back but thereafter it deteriorated slowly. Finally, on 11 November 1986 she saw yet another neurosurgeon at St. Vincent's Hospital, Dr Connelley. He ordered investigation to confirm a tentative diagnosis of arachnoiditis. This condition was firmly diagnosed in mid-1987. It is not, apparently, a condition which invites surgical interference.

33. She had in the meantime, in 1986, received several injections in the hope that they would assist but they gave her no benefit. Indeed, after one of them she suffered severe headache and increased backpain as a side effect.

34. Dr Robson inserted a spinal cord stimulator on 13 August 1987. This required incisions and implantation under the lower rib cage of a receiver to which is attached an external box which is used for controlling the instrument. Initially the apparatus malfunctioned and was dislodged and caused a lot of pain. An attempt was made to adjust it under general anaesthetic on 27 August 1987 but that failed too. Finally, on 14 September 1987, the stimulator was fully replaced under general and local anaesthetics. This time the attempt was successful and the stimulator helped the pain in the left leg considerably. It has never helped relieve the right pain at all.

35. The plaintiff is now mobile and active to a degree but is still limited. Prolonged sitting causes her discomfort and this, I am satisfied, means that she would not be able to engage in clerical employment.

36. She still limps and her knee causes some difficulty when she climbs up and down stairs. She can drive but with discomfort. She has an unstable left knee joint with wasting of the quadriceps muscles. Dr Mann, an experienced general surgeon, assessed her disability in the left leg at forty-five percent of its function.

37. I am satisfied that she is presently unable to peform any work. Certainly she could not go back to work as a nursing sister and I am satisfied on the balance of probabilities after reviewing the medical evidence and taking into account her complaints, which I accept as genuine, that she is unfit for work and has been unfit for work since the accident in July 1985.

38. But although the accident is directly and immediately responsible for her unfitness for work there remains a serious question as to whether her condition before the accident would have led, in any event, to her incapacity for work before the age at which she might have retired.

39. In 1980 the plaintiff had an irregular pulse. She received treatment for this from a Dr Cole, a cardiologist, and the condition was apparently corrected. I do not think it would have played any part in her possible early retirement.

40. In January 1973, while employed at the Cootamundra District Hospital, the plaintiff had a mild injury to the lumbar spine.

41. The plaintiff agreed that in about 1974 she slipped and fell hurting her lower back. The fall was not severe. She was off work for what may have been as much as two weeks but her back gradually got better. Since then she has had a recurrence perhaps two or three times a year with each recurrence lasting for a few days up to a week or so.

42. Altogether she lost four to six weeks work on account of backache. She was unable to remember details put to her but those details do no more, in my opinion, than support her general agreement with the proposition that she had suffered backache from time to time over a number of years since 1974.

43. On 3 July 1978 the plaintiff suffered a whiplash type injury with pain in the neck radiating to the right arm as a result of a collision when a hit-run driver backed into her.

44. In 1979 she felt dizzy at work and collapsed. She proved to have a bleeding gastric ulcer caused by her taking Aspirin and the like for the pain from which she was suffering due to the whiplash injury sustained in the car accident to which I have just referred.

45. In January 1984 the plaintiff hit her head against a cupboard and between then and 8 September 1986 had a persistent pain in the neck more on the right side than on the left. That pain has much improved as a result of her enforced rest, but she still has pain in the neck infrequently from time to time.

46. Some six weeks before 12 July 1985 the plaintiff developed pain in the leg and back which developed either spontaneously or as a result of sneezing. It does not matter which. X-rays showed no abnormality. She was off work for two weeks. She improved and began to work again although with some pain.

47. A picture emerges of a person with lumbar pain occasioning discomfort from time to time, discomfort which required her to take time off from work but which did not prevent her from going back to work. Her back would, she agreed, "go".

48. All this adds up to a picture of a person with a degenerative disease of the spine likely at any time to become symptomatic although not, on the evidence of the plaintiff which I accept, incapacitating for lengthy periods or to the extent that she was be unable to carry out her work.

49. The plaintiff also indicated to two examining doctors, Drs Corry and Andrea, that she had planned to retire at 60. In evidence she said that she would not have retired until she was 65. It is to be remembered that she had an invalid younger sister to care for and this would have been a factor in persuading her to continue to work as long as she might. Since I accept the plaintiff as a witness of truth, I think the appropriate way to deal with the matter is to proceed on the assumption that she would have worked, if able, to 65, given her circumstances, but that there was a real possibility that she might have retired earlier. That possibility may be reflected in a reduction in the amount which would have been awarded to her had it been her completely unequivocal intention to work until she was 65.

50. It was put by the second defendant that the plaintiff was suffering from an arthritic hip condition and that this would eventually have disabled her in any event. The evidence in support of this submission was that of Dr Cassar, a consultant physician, who carried out a thermographic examination and other investigations of the plaintiff and thereafter concluded that she had an arthritic condition in the hips.

51. On all the evidence, I am satisfied, on the balance of probabilities, that the pain in the hip area from which the plaintiff suffers is due to her spinal condition and not from arthritis of the hip joint. It follows that I have preferred the evidence of the other specialists who gave evidence on this point. In particular Dr Mann carried out a specific examination of both hip joints and found present a full range of movement in all directions on rotation, abduction, adduction, flexion and extension with no pain experienced at extremes of movement and concluded that there was no arthritis present in them. Radiological evidence confirmed this view. He considered the pain to be consistent with pain of sciatic origin.

52. On a consideration of all the evidence I think it quite probable that at some date between the date of the accident and her 65th birthday, the plaintiff's back condition would have reached the stage where she would have been for all practical purposes disabled from carrying on her duties as a nursing sister. Asked to fix a time when that might happen, I would say, on a consideration of all the medical evidence, by not later than her 62nd birthday. I do not discount the possibility that such disablement from carrying out nursing duties might have occurred earlier, but it does not seem to me to matter. My task in dealing with this problem is made easier because of the evidence of Ms. Prudence Power, the Secretary of the ACT Branch of the Royal Australian Nursing Federation. She gave evidence of a scheme whereby nurses who became incapacitated and as a result were unable to perform nursing duties could be redeployed into clerical positions within an appropriate department. That statement perhaps might be taken as an over-simplification of the position, but I am satisfied that it reflects the tenor of Ms. Power's evidence sufficiently for my purposes. I am also satisfied that if the plaintiff's pre-existing spinal condition had worsened to the point where she would not have been able to carry out nursing duties she would still have been able to carry out clerical duties until her 65th birthday.

53. I do not think, however, that she would have been likely to have been redeployed to a position which would have carried a salary greater than that which she was earning as a nurse. Having regard to her working history, it seems to me to be most unlikely that she would have been promoted further as nurse and I think it highly unlikely that a woman of her age would be redeployed to a position which would have carried a higher salary than the one she was earning at the time of her redeployment, bearing in mind that she was receiving at at time the topmost increment of the appropriate salary scale.

54. I also think that, despite her declared intention as to retirement, there would have been a strong possibility that she may, in any event, have retired before she reached the age of 65. To take account of this and of other, although not all, contingencies which in her circumstances could hardly be favourable, I propose to treat her working life as one that would have ended on 31 December 1991 and to assume that by the end of this year she would have been forced to retire as a nurse and take up clerical duties instead.

55. On those findings I turn to the question of damages.

56. For past economic loss I would allow $82,290.00, making no allowance for contingencies. This includes an amount which takes into account not only the agreed loss to the date of trial but also an amount which allows for loss since then, having regard to the 3% wage increase from 1 September 1988 to 28 February 1989 and the $10 per week wage increase from 1 March 1989 granted in the National Wage case. The figure is nett after tax, allowance first having been made for the increment of .2129 for penalty rates etc. referred to in Exhibit X.

57. For the period from 1 July 1989 to 23 March 1990 I would allow, again making no allowance for contingencies, the sum of $16,560.00 using a discount rate of 3%.

58. For the period from 24 March 1990 to 31 December 1991 I would allow $34,000.00, again without reference to contingencies, using a discount rate of 3% and deducting the increment for penalty rates etc. since I cannot see that increment continuing in respect of a clerical position.

59. For past and future economic loss, therefore, I would allow, but for the other unfavourable contingencies which I think it proper to take into account, the sum of $132,850.00, but making an appropriate allowance for those contingencies I reduce that figure to $125,000.00.

60. I assess the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 at $6,755.00.

61. The plaintiff has made a claim under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. The evidence on this aspect is somewhat meagre. The plaintiff gave evidence that in 1986 she had spent approximately six months in bed and that her sister had nursed her for a couple of years until approximately April 1987. Save, no doubt, for the period when she was in bed the plaintiff was able to do her own washing for some of the time, although her sister did a lot of it for her. The plaintiff by her particulars claims that during the period of approximately two years after her injury she required domestic and nursing assistance at the rate of ten hours a week and thereafter at the rate of five hours a week, a requirement which was said to be continuing.

62. Although the evidence is meagre, it seems to me that to allow for assistance at the rate of ten hours per week in respect of the period during which the plaintiff was confined to bed would be reasonable and thereafter it would be reasonable to allow for assistance at the rate of five hours per week until the end of April 1987. The evidence does not satisfy me that the need continues in any quantifiable way thereafter, although no doubt the plaintiff does obtain some assistance from time to time. Any incapacity which, after all, is fundamentally what the doctrine in Griffiths v. Kerkemeyer seeks to address can be taken up in a modest addition to the amount to be awarded for general damages for pain and suffering, loss of relevant capacities and loss of enjoyment of life.

63. In respect of the Griffiths v. Kerkemeyer claim, therefore, I allow $5,000.00.

64. Out-of-pocket expenses are agreed at $60,436.86. Of this amount there is some dispute as to a claim for $220 in respect of treatment by Dr Cassar, but I cannot see how this should be dealt with other than as damages properly payable. For out-of-pocket expenses, therefore, I allow $60,436.86.

65. I accepted the plaintiff's evidence of the pain which she underwent and of the disabilities she suffers as a result of the accident. She struck me as being a stoical woman and I do not think she exaggerated her condition in any way. Bearing in mind the continuing problems which she will have but making due allowance for the fact that in any event I think sciatica was for her a real problem which would become worse with the passage of the years, I think that the appropriate amount to award for general damages is $35,000.00.

66. For interest I allow $17,935.00 made up of $2,534.00 in respect of the Griffiths v. Kerkemeyer component, $5,600.00 in respect of the award for general damages, $1891.00 in respect of the Fox v. Wood component, and $7,910.00 in respect of economic loss bearing in mind that the plaintiff was and no doubt continues in receipt of workmen's compensation to date.

67. The total amount of the plaintiff's damages is therefore $250,126.86.

68. There must, accordingly, be a verdict against the secondnamed defendant for that sum.

69. But the plaintiff has also, as I have indicated, sued her employer in respect of the act of negligence which I have found to have been committed by the secondnamed defendant through its employee, Mrs. Peresan. In my opinion, the firstnamed defendant is also liable for that negligence. Having committed to another person the task of maintaining the cleanliness of the hospital, it was, I think, responsible for the acts of negligence of that person performing the work when it had a duty of care to the plaintiff, as it did in this instance. It was not a casual act of negligence distinct from the nature of the work but an act which formed an integral part of the work. It was not a collateral act on the part of the secondnamed defendant for which the firstnamed defendant was not liable: see Penny v. Wimbledon Urban Council (1899) 2 QB 72, Hayes v. Baumann's Cafe (1911) 11 SR (N.S.W.) 372, and McInnes v. Wardle [1931] HCA 40; (1931) 45 CLR 548.

70. There must also be judgment against the firstnamed defendant in favour of the plaintiff for the amount of the damages.

71. By notice dated 15 September 1986, the firstnamed defendant sought contribution or indemnity from the secondnamed defendant in respect of the plaintiff's claim. It alleged that at all material times the secondnamed defendant provided cleaning services at the Woden Valley Hospital upon the terms and conditions contained in Tender documents dated 31 July 1984 submitted by the secondnamed defendant and accepted by the firstnamed defendant. It alleged in the notice that by clause 3.15 of the General Terms of Tender and Contract forming part of the tender documents, the secondnamed defendant agreed to indemnify the firstnamed defendant against claims made in respect of injury caused by the secondnamed defendant. It further alleged that by clause 6 of the Special Conditions of Contract forming part of the said tender documents the secondnamed defendant was required to indemnify it against claims for loss and/or damage sustained by third parties in the course of performance by the secondnamed defendant of its duties under the contract.

72. The two clauses are in the following terms:
"3.15(a) The contractor shall take effective

measures for the protection of
persons who are upon using or entering
into or departing from the
Association premises or land while
performing services and shall not
cause any loss, injury or damage
(whether to person or property) in
performing or maintaining the
services, and shall indemnify the
Association, its officers, servants
and agents from and against all
actions, proceedings, claims and
demands whatsoever which may be made
by any person or persons in respect
of loss, injury or damage (whether
to person or property) caused or
alleged to have been caused by the
contractor or arising or alleged to
have arisen as a result of the con-
tractors failure to take effective
protective measures either during
the performance of the service or
during the period of maintenance of
the service by the contractor.
(b) In the event of any claim being made
against the Association by reason of
any matter referred to and in
respect of which the contractor is
liable under this clause, the
contractor shall be promptly
notified thereof and may at his own
expense conduct all negotiations for
the settlement of the same and any
litigation that may arise
therefrom. The Association shall
not unless and until the contractor
shall have failed to take over the
conduct of the negotiations or
litigation make any admission which
might be prejudicial thereto. The
conduct by the contractor of such
negotiations or litigation shall be
conditional upon the contractor
having first given to the Assoc-
iation such reasonable security as
shall from time to time be required
by the Association to cover the
amount ascertained or agreed, or
estimated as the case may be, of any
compensation, damages, expenses and
costs for which the Association may
become liable. The Association
shall, at the request of the con-
tractor afford all available
assistance for any such purpose and
shall be repaid any out of pocket
expenses incurred in so doing.
(c) Except in respect of personal injury
or damage to property, conferring on
a person other than the Association
a good cause of action against the
contractor, the liability of the
contractor to the Association for
any one act or default shall not
exceed the sum named on the
contract, or if no such sum is
named, the contract price."

73. Clause 6 of the Special Conditions of Contract is in the following terms:
"6. Public Risk Insurance

The Contractor will be required to
indemnify the Commission against claims
for loss and/or damage sustained by
third parties in the course of
performance of the Contract. The
successful tenderer will be required to
obtain Public Risk Insurance cover to a
minimum of $1,000,000 or such greater
amount as the Commission considers
necessary. The Public Risk cover must
include all risks associated with
external window cleaning and the insured
shall require the insurer to note such
policy, cover note, or other advice to
that effect. The Commission may,
without prior notice, require the Public
Risk Insurance cover to be increased
during the currency of the Contract."

74. In my opinion the terms of those clauses are sufficient to provide the firstnamed defendant with a complete indemnity in respect of the damages and costs which it might be required to pay as a result of the injury suffered by the plaintiff. Cf Cervellone v. Besselink Bros. Pty. Ltd. (1984) 55 ACTR 1, particularly at p 10.

75. The secondnamed defendant also claimed contribution or indemnity from the firstnamed defendant. There seems to me to have been no basis in law for that claim but, in any event, what I have just said is conclusively against it.

76. Accordingly, I propose to order that there be judgment for the plaintiff against both defendants in the sum of $250,126.86, but to order that the secondnamed defendant indemnify the firstnamed defendant in respect of the full amount of award to the plaintiff for damages and costs.