GIO General Limited v Insurance Australia Limited t/as NRMA Insurance [2008] ACTSC 38 (24 April 2008)

Last Updated: 28 July 2008

GIO GENERAL LIMITED (ABN 22 002 861 583) v INSURANCE AUSTRALIA LIMITED trading as NRMA INSURANCE (ABN 11 000 016 722)

[2008] ACTSC 38 (24 April 2008)

INSURANCE - double insurance - claim by workers' compensation insurer against third party insurer for contribution - whether identity of risk - pleading of claim by injured worker not determinative of whether dual insurance applies

INSURANCE - third party liability insurance - motor vehicles - compulsory insurance legislation - Australian Capital Territory - Road Transport (General) Act 1999, s 163 - injured worker unloading stationary truck - whether injury arising out of use of truck

Workers Compensation Act 1951

Road Transport (General) Act 1999 ss 163, 167

Motor Vehicles (Third Party Insurance) Act 1942 (NSW)

Motor Accidents Act 1988 (NSW) s 3

Insurance Law in Australia, KC Sutton (3^rd Edition, 1999)

Albion Insurance Co. Limited v Government Insurance Office of New South Wales [1969] HCA 55; (1969) 121 CLR 342

Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited [1966] HCA 6; (1966) 114 CLR 437

Australian Iron & Steel Pty Limited v Government Insurance Office of New South Wales (1990) 20 NSWLR 633

AMP Workers Compensation Services (NSW) v QBE Insurance Limited [2001] NSWCA 267; (2001) 53 NSWLR 35

Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568

Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529

Allianz Australia Workers Compensation (NSW) Limited v NRMA Insurance Limited [2007] ACTSC 2; (2007) 207 FLR 153

Australian Iron & Steel Pty Limited v Government Insurance Office of New South Wales [1978] 2 NSWLR 59

General Accident Insurance Company of Australia Limited v Sun Alliance Insurance Limited (1989) 5 ANZIC 60-917

No. SC 286 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 24 April 2008

IN THE SUPREME COURT OF THE )

) No. SC 286 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GIO GENERAL LIMITED (ABN 22 002 861 583)

Plaintiff

AND: INSURANCE AUSTRALIA LIMITED trading as NRMA INSURANCE (ABN 11 000 016 722)

Defendant

ORDER

Judge: Master Harper

Date: 24 April 2008

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff for $107,682.71.

1. This is an action by a workers' compensation insurer against a motor vehicle third party insurer seeking contribution towards a judgment obtained by an employee against his employer for damages for personal injury said to have arisen out of the use of a truck of which the employer was the registered owner. The plaintiff seeks declarations that the injury suffered by the employee arose out of the use of the truck; that the employer was entitled to be indemnified by both the plaintiff and the defendant in respect of the claim by the employee; that in the circumstances the employer had dual insurance in relation to the employee's injury; and that the defendant is liable to pay 50% of the employee's damages and costs. The plaintiff also seeks, in the event that the employee's action is determined prior to the present action, judgment against the defendant for half of the judgment sum.

2. Although the present action had been commenced in April 2007, and the pleadings closed well before trial, I granted leave on the hearing of the action for the plaintiff to file an amended statement of claim, and for the defendant to file an amended defence. The plaintiff asserts, and the defendant admits, that:

(a) as at 21 and 22 January 2003 Andre Herzog Pty Ltd ACN 008 450 940 (the employer) employed Gary Patrick Gray (the employee) as a delivery driver.

(b) on those dates the employer was the owner of Isuzu truck bearing ACT registration YAK 49D (the truck) which was used by the employee in the course of his employment as a delivery driver.

3. The plaintiff asserts, but the defendant does not admit, that:

(a) on those dates there was in force a policy issued by the plaintiff under the Workers Compensation Act 1951 to the employer.

(b) on those dates there was in force a third party insurance policy issued by the defendant to the employer in respect of the truck.

The action by the employee

4. On 30 November 2005, the employee commenced proceedings No. SC 886 of 2005 in this Court against the employer by originating application, framed as an employment personal injury claim. The accompanying statement pleaded three incidents in the course of the employee's employment:

(a) in about October 2002 the employee became aware of pain in both hands and difficulty in moving the fingers of both hands. His work involved regular heavy lifting.

(b) at about 10:30 am on 21 January 2003 at or near Conder the plaintiff was delivering steel beams to a customer of the defendant. No assistance was available to him. He unloaded the steel without assistance. In the course of doing so he suffered a back injury.

(c) in about July 2004, in the course of treatment for his back injury, the plaintiff was walking down stairs at his home. He experienced a sharp pain in the low back. In response to this he moved his body and twisted his left knee, causing injury to the knee.

5. The plaintiff asserted failure to provide a safe system of work, and in particular a safe means of lifting heavy and awkward items.

6. The employee was born in January 1957. He worked for Ansett Australia between March 1995 and August 2002. He was employed by the employer from September 2002 until July 2003. Since then he has been employed by Queanbeyan Joinery in New South Wales.

7. The action by the employee against the employer was listed for hearing on 30 May 2007. On that day negotiations between the parties resulted in a settlement, and a hearing was not necessary. Judgment was entered by consent for the employee against the employer for $192,687.58 plus costs agreed at $40,000, with the defendant to have credit out of the judgment sum for payments of workers compensation previously made of $27,687.58 - a net result for the employee of $165,000.

8. I am satisfied by documentary evidence that a workers' compensation policy issued by the plaintiff to the employer was in force for the 2002-2003 financial year.

The registration number of the truck

9. Documents produced by the Road Transport Authority include a certificate of registration over Isuzu flat-top truck registered number YAX 49D for the year expiring on 21 January 2004, and a registration history for the same vehicle which confirms that it was registered and insured for third-party purposes from 19 January 2002 until 18 January 2003; and again from 22 January 2003 to 21 January 2004. It appears from the documentation that the truck was unregistered on 19, 20 and 21 January 2003.

10. It will be noted that these records relate to a truck with the registration YAX 49D. The plaintiff asserted in the original statement of claim of 30 April 2007 that the registration number of the truck in question was YAK 49D. In its original defence of 19 July 2007, the defendant admitted that the employer was the owner of that truck at the relevant time. The amendment made to the statement of claim on the morning of the hearing did not extend to an amendment of the registration number, and the issue did not arise during the course of the hearing. I only noticed the discrepancy when preparing these reasons.

11. One of the two exhibits emanating from the Road Transport Authority was tendered by counsel for the plaintiff and the other by counsel for the defendant. It seems to me that what has happened is that a typographical error was made in the statement of claim attached to the originating claim filed in May 2007, and perpetuated in the amended statement of claim filed on the morning of the hearing. They are the only court documents in which the registration number of the vehicle appears. The plaintiff tendered a copy of a letter from its solicitors to the defendant dated 21 January 2004 in which the registration number of the truck was quoted as YAX 49D. It does not seem to me that the defendant has been misled by the typographical error. It seems likely to me that I am the first person to have noticed it. I propose to decide the case on the basis that paragraph 5 of the amended statement of claim is amended so as to substitute YAX 49D.

The date of the back injury

12. At first sight it appears that the date of the plaintiff's injury, that is whether it happened on 21 or 22 January 2003, might be decisive as to whether or not the third party policy was in force. However, section 167 of the Road Transport (General) Act 1999 provides that a third party policy issued for a motor vehicle by an authorised insurer continues in force, if another third party policy issued for the vehicle begins within fifteen days after the date the first policy is expressed to end, until the beginning of the other policy; or in any case, until fifteen days after the date it is expressed to end. I am satisfied that there was a third party policy issued by the defendant in relation to the truck which was expressed to end on 18 January 2003, and that another policy was issued by the defendant within fifteen days of that date. In those circumstances, the earlier policy remained in force until the beginning of the later policy. Both were issued by the same insurer, and in the circumstances it is immaterial, so far as third party cover is concerned, whether the injury happened on 21 January or 22 January 2003.

13. The employee, Mr Gray, completed a workers' compensation claim form on 31 January 2003. He gave the date of the injury as 22 January 2003 and said that he had stopped work on 29 January. He attached a medical certificate from his general practitioner, Dr Joseph. He said that he reported the accident to one Ron Cockram. An employer's report of injury was completed on 1 February 2003 by Helene Herzog, a director of the employer company. She completed the date of injury as 22 January 2003 but said that the accident was reported to Philip Herzog on 29 January 2003. The claim form and accompanying documents were received by the plaintiff on 4 February 2003.

14. In a report to the employee's solicitors, Dr Joseph said that he had seen the employee on 29 January 2003 and had been given a history of a work accident on 22 January 2003.

15. There is no direct evidence that the injury was occasioned on any date other than 22 January 2003. There is indirect evidence, in that the employee's solicitors, Gary Robb & Associates, asserted in the statement of claim in his action against the employer that the relevant incident had happened at about 10:30 am on 21 January 2003. The only oral evidence about the matter was given in this action by Mr Gray, who said that the correct date was 22 January 2003. Some of the doctors who treated the plaintiff or saw him for medico-legal purposes recorded the date of the injury as 22 January; at least one, retained on the employer's behalf, gave the date as 21 January. Yet another, a treating doctor, gave the date as 27 January 2003, but that was in a report some two years after the event.

16. No evidence was called to explain how it came about that Mr Gray's solicitors gave a different date in the statement of claim in his action to the date he had given in the claim form and in his history to Dr Joseph. It seems to me likely that memories would have been freshest soon after the accident. Mr Gray gave the date as 22 January to Dr Joseph a week afterwards and to his employer two days after that. I think it most probable that 22 January 2003 is the correct date.

Double insurance

17. The principles concerning dual or double insurance are summarised by Professor KC Sutton in Insurance Law in Australia (3^rd Edition, 1999) Chapter 12. Dual insurance applies when two or more insurers cover the same interest against the same risk, although the liability need not arise from the same type of policy. It is essential that each policy must indemnify the same assured in respect of the same loss. The leading Australian case is Albion Insurance Co. Limited v Government Insurance Office of New South Wales [1969] HCA 55; (1969) 121 CLR 342, where the principles are set out in the joint judgment of Barwick CJ, McTiernan and Menzies JJ at 345-346 and by Kitto J at 352.

18. The insured in this case is Andre Herzog Pty Limited ACN 008 450 940, the defendant in the action brought by Mr Gray. The employer's insurance policy issued by the present plaintiff under the Workers Compensation Act 1951 for the 2002-2003 financial year (during which Mr Gray was injured) provided that if during the period of insurance, the employer was liable to pay compensation under that Act to a Territory worker, or to pay any other amount in respect of the employer's liability independently of the Act for an injury to a Territory worker, the insurer would indemnify the employer. I am satisfied that the employer was entitled to be indemnified by the present plaintiff in relation to the claim by Mr Gray for the injury in January 2003.

19. The third party policy issued by the present defendant for the period from 19 January 2002 to 18 January 2003 insured Andre Herzog Pty Limited as registered owner of the truck against liability in relation to bodily injury to a person caused by or arising out of the use of the truck: Road Transport (General) Act 1999, section 163. The period of cover was extended, if necessary, for fifteen days after the expressed date of expiry of the policy: section 167. The third party policy for the period 22 January 2003 to 21 January 2004 provided the same cover, for liability incurred during the period of its currency. Hence if the back injury to Mr Gray happened on 21 January 2003, it was covered by the 2002-2003 policy; if it happened on 22 January 2003, it was covered by the 2003-2004 policy issued by the same insurer. I have already explained the reasons for my conclusion that it happened on 22 January, and was thus covered by the later policy.

20. There is ample authority for the proposition that an injury occasioned to a person during the loading or unloading of a truck is an injury which arises out of the use of the truck, notwithstanding that the truck is stationary and that its engine may not be running. The leading authority is Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited [1966] HCA 6; (1966) 114 CLR 437. The third party policy under consideration in that case was one issued under the Motor Vehicles (Third Party Insurance) Act 1942 of the State of New South Wales, which used the same wording as the third party policy here under consideration: all liability incurred by the defendant in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle.

21. Barwick CJ said at 441-442 that the legislation indicated an intention to cover a very wide field, a field more extensive than what might be called the traffic use of the motor vehicle. The act of placing a load on the part of the vehicle designed to bear it during transport was, in His Honour's opinion, a use of the motor vehicle in the sense relevant to the Act and to the terms of the policy. The relevant use could not be confined to periods when the vehicle was in motion: it could be in use though stationary.

22. In the same case, Windeyer J said at 446 that no sound reason had been given for restricting the phrase "the use of a motor vehicle" to the movement of the vehicle or the operation of some part of its mechanism. The only limitation upon its generality was that the injury had to be in some way a consequence of a use of the vehicle as a motor vehicle.

23. The wide scope of the traditional third party policy is illustrated by Australian Iron & Steel Pty Limited v Government Insurance Office of New South Wales (1990) 20 NSWLR 633. The injured employee had been driving a vehicle owned by his employer through a railway crossing at his employer's premises. There was a collision between the vehicle he was driving and a train which was under the control of the plaintiff's servants and agents. The collision happened because of the negligent management of the train. The employee was not negligent in driving the vehicle. The employee recovered damages, and the employer sought indemnity under the third party policy in respect of the vehicle he had been driving. The employer was successful. The Court of Appeal held that it was the injury and not the liability of the insured for the injury that was required to have been caused by or to have arisen out of the use of the insured vehicle. That condition was satisfied and the employer, being the registered owner of the vehicle and the insured under the third party policy, was entitled to indemnity. Indemnity did not depend upon the establishment of any fault in the driving or management of the motor vehicle. The policy was not to be read as limiting the liability of the owner to one incurred by reference to the vehicle insured under the policy. The result was that the third party insurer was ultimately responsible for the whole of the damages recovered by the injured employee: the employer was a self-insurer for workers' compensation purposes, a status which was available to certain corporations under the statutory scheme. Thus it was not a case of dual insurance, but simply a case of whether a policy existed under which the defendant in the original personal injury action was entitled to indemnity.

24. Senior counsel for the defendant submitted that any liability on the part of the third party insurer in respect of Mr Gray's claim against Andre Herzog Pty Limited could not arise by reason of the way in which the claim was pleaded. The pleadings in Mr Gray's action had been framed purely as an unsafe system of work claim. There was no claim of any negligence related in any way to the motor vehicle, which was not mentioned in the statement of claim other than indirectly (one of the particulars of negligence was failure to provide a crane or other mechanical assistance in the unloading of steel from the defendant's truck.). Mr Gray's claim had been solely a claim by an employee against an employer for an injury occasioned in the course of his employment because of an unsafe system of work.

25. In my view this submission must be rejected. The typical dual insurance case, through many reported decisions, has been a loading or unloading case where the motor vehicle was stationary. I am satisfied that the manner in which the claim by the injured person against the employer and vehicle owner is framed is quite immaterial to the issue of whether or not dual insurance applies.

26. I am fortified in this conclusion by the decision of the NSW Court of Appeal in AMP Workers Compensation Services (NSW) Limited v QBE Insurance Limited [2001] NSWCA 267; (2001) 53 NSWLR 35. The injured employee in that case had sued only the driver of a motor vehicle owned by his employer. He had been injured by the negligent driving of the vehicle. His claim was pleaded as a conventional motor accident injury claim. The third party insurer subsequently brought proceedings for contribution against the workers' compensation insurer, which submitted that it was not liable to contribute because it did not insure the driver who had been the sole defendant in the earlier proceedings. There had been no finding of liability against its insured, the owner-employer. Handley JA, in a judgment with which Mason P and Beazley JA concurred, held that the third party insurer was entitled to contribution from the workers' compensation insurer. The two policies had covered the same risk. The equitable entitlement of the third party insurer to contribution could not be defeated by an act over which it had had no control, namely the decision of the injured person to sue only the driver. The owner if sued would have had no answer to a claim based on vicarious liability.

27. I am satisfied that the manner in which the original claim by the injured person is framed (whether as a claim by an employee against an employer or as a claim against the owner or driver of a motor vehicle) is not capable of being determinative of whether or not dual insurance applies.

28. Counsel for the defendant relied on two relatively recent decisions of the High Court in which claims for contribution between insurers failed. In Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568, a workers' compensation insurer failed in a claim for contribution against a third party insurer. The decision is not of assistance for the present action, because the applicability of the third party policy was governed by more recent legislation, in the form of section 3 of the Motor Accidents Act 1988 (NSW), which defined "injury" in more restricted terms than the previous "caused by or arising out of the use of a motor vehicle". A third party policy in New South Wales now covers only fault of the owner or driver in the use or operation of a motor vehicle caused during (i) the driving of the vehicle or, (ii) a collision, or action to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control or (iv) such use or operation by a defect in the vehicle. It will be seen that the NSW third party policy no longer covers loading and unloading cases. The decision is not relevant to the issue I am required to determine.

29. Counsel for the defendant also relied on Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529. A worker had been injured while unloading a container, when boxes stacked insider the container fell on him as a result of vibrations generated by a forklift truck operating on a ramp nearby. It was held that the injury to the worker was not an injury as defined in section 3 of the Motor Accidents Act, and hence the third party policy over the forklift truck did not respond to the claim. Again, the outcome in this decision flows from the construction of the NSW legislation, and is not relevant to the present action.

30. I am satisfied that the back injury suffered by Mr Gray on 22 January 2003 arose out of the use of the truck, and hence that the third party policy insured Andre Herzog Pty Limited as registered owner of the motor vehicle against liability for the injury. It follows that Andre Herzog Pty Limited was entitled to indemnity in respect of the injury to Mr Gray on that date under both of the policies.

Identity of risk

31. There remains an issue as to whether the whole of the amount for which consent judgment was entered in Mr Gray's favour on 30 May 2007 is covered by both policies, or whether only part of that sum is covered.

32. For dual insurance to apply it is essential that both policies indemnify the assured against the same loss. It will be recalled that Mr Gray in his statement of claim sued for damages in respect of three incidents. He alleged that the first incident happened in about October 2002, when he became aware of pain in both hands and difficulties moving his fingers, in the course of continual heavy lifting during his employment. The second incident was the one which has been the principal focus of this action, that is the unloading of steel beams from the tray of the truck at a construction site in January 2003.

33. The third incident was in July 2004, when Mr Gray injured his knee while descending a staircase at his home. This incident was not asserted to have resulted in itself from any negligence of his employer, or to have happened in the course of his work. Rather, it was put forward as any aggravation to his existing injuries, causing further injury which would not have happened but for them. Notwithstanding the form in which the third incident was pleaded, it seems to me to have been, on proper analysis, an event which went to the question of damage rather than breach of duty, and hence relevant to the assessment of damages rather than to the liability of the employer. If the amount for which Mr Gray's claim was settled included any allowance for his knee injury, this must be taken to have been secondary to the back injury in January 2003, rather than a separate cause of action against the employer.

34. The October 2002 incident, if established, is in a different category. This was three months before the unloading incident. It was an allegation which related purely to the plaintiff's employment. As pleaded, it had nothing to do with any motor vehicle. Counsel for the present plaintiff submitted that there was enough evidence for me to find that it must have been related to unloading from a motor vehicle, and that the only motor vehicle, on the evidence, with which the plaintiff worked was the truck insured with the present defendant.

35. The evidence does not satisfy me that the incident in October 2002, when the plaintiff claims that he felt pain in both hands, arose out of the use of the insured motor vehicle, or of any motor vehicle. It is clear that his job involved heavy lifting. The evidence is not capable of satisfying me that the only heavy lifting in which he engaged was the loading and unloading of the insured truck. The evidence leaves open the possibility that he was required to load and unload other motor vehicles, not identified in the evidence, and that he was required to undertake heavy lifting not directly associated with the loading or unloading of any motor vehicle.

36. To deal with the apportionment issue it has been necessary for me to have regard to the oral evidence of the plaintiff, and to the medical reports which were tendered by both parties without objection.

37. The plaintiff was not asked about any incident in October 2002 during his examination in chief on the hearing of the present action. In cross-examination, he said that most of his heavy lifting had involved loading and unloading the truck, and said that at the workshop electric cranes were used. Nothing was put to him in cross-examination about any incident in October 2002.

38. A number of medical reports were tendered. None of the doctors gave oral evidence.

39. Mr Gray's general practitioner, Dr Paul Joseph, prepared a report in July 2005, recording a consultation at his rooms on 29 January 2003 for a work injury a week earlier. Dr Joseph made no mention of any earlier work injury or of any symptoms involving the hands or fingers.

40. Dr Garth Eaton, occupational physician, saw Mr Gray on 6 March 2003 on referral from his general practitioner. Dr Eaton took a detailed medical history which included no reference to any problems with the hands or fingers.

41. Dr Derrick Billett, orthopaedic surgeon, saw Mr Gray in December 2003 for the present plaintiff. The history he took related solely to the back injury of 22 January 2003. He made no reference to Mr Gray's hands or fingers, or any earlier work injury.

42. The orthopaedic surgeon who operated on Mr Gray's hands was Dr Chris Roberts. He prepared a report to Mr Gray's solicitors in June 2005. He had first seen Mr Gray on referral from his general practitioner in December 2003. The history he obtained at that time was that in August 2003 Mr Gray had developed paraesthesia in both hands.

43. In answer to a question from these solicitors, Dr Roberts said:

He worked for 12 months delivering heavy steel beams which involved heavy repetitive use of his hands. His symptoms developed at the end of this period of time. It is quite likely that there was some pre-existing narrowing of his carpal tunnel, and repetitive use of his hands leading to the development of bilateral carpal tunnel syndrome, and left middle and ring triggering. It is also possible that his next career as a painter contributed to the development of the symptoms if he had started working as a painter in July 2003 and developed symptoms in August 2003. To clarify this further it would be important to know exactly when he started working as a painter.

44. On 13 July 2005 Mr Gray's solicitors wrote to Dr Roberts. That letter was not in evidence. On 12 August 2005 Dr Roberts replied, noting that the solicitors had taken a history from Mr Gray saying that his symptoms commenced in October 2002. Dr Roberts said that he would find it difficult to amend his report as clearly in his notes it was stated that the symptoms developed in August 2003. He said that he could state that Mr Gray had subsequently decided that the symptoms actually began earlier, but his initial report was made on the basis of the information provided by Mr Gray at his initial appointment. Dr Roberts suggested that there might be general practitioner notes supporting the development of the hand and finger symptoms prior to Mr Gray leaving his employment with Andre Herzog Pty Limited. (I make the point in passing that this second report by Dr Roberts would have provided fertile material for cross-examination of Mr Gray had his action proceeded to trial).

45. Mr Gray's solicitors referred him in April 2005 to Dr Robyn Schellenberger, a Melbourne orthopaedic surgeon. The history she obtained made no mention of any injury prior to January 2003. She recorded a history that towards the end of his employment with Herzog Steel, Mr Gray had developed numbness in the hands at night and triggering of the left middle finger. After he started his next job as a spray painter these symptoms worsened. In February 2004 he underwent surgery in the form of left carpal tunnel decompression and release of the trigger middle finger. He had recovered uneventfully from this surgery by the time she saw him, but had developed triggering of the left ring finger, and right carpal tunnel symptoms. Dr Schellenberger recorded some earlier medical and surgical treatment the plaintiff had required between 1980 and 2001, but said that he otherwise denied other injuries, accidents or illnesses. She noted at the end of the report that "in retrospect he stated that he had symptoms of carpal tunnel syndrome during the employment with Herzog Steel and as his work there involved heavy lifting and carrying it could have contributed significantly to the development of carpal tunnel syndrome and trigger fingers, as would his employment as a spray painter using a spray gun."

46. Dr Schellenberger saw Mr Gray again in June 2006. He had had surgery to the right carpal tunnel a month earlier and had only just returned to work. He had continuing symptoms of stiffness in the fingers at work on cold mornings, and complained that his hands were slightly weaker than before surgery. At the conclusion of her 2006 report, Dr Schellenberger said:

With regard to the 2004 hand and finger complaints due to spray-painting furniture they have recovered fully without residual impairment or incapacity, since release of the trigger fingers and bilateral carpal tunnel decompression surgery. It is not unreasonable for him to have a feeling of subjective weakness of the hands at this stage but that usually passes in time.

47. The solicitors for the present plaintiff acted for the employer as defendant in the action brought by Mr Gray. They sent the plaintiff in November 2005 to Dr Max Wearne, orthopaedic surgeon. Mr Gray gave Dr Wearne a somewhat different history. He told Dr Wearne that although the Herzog workshop was well equipped, all of the loading and unloading of the steel products was performed by hand. These included steel girders and rods, sheets of steel mesh and bags of cement. He said that the work was very hard on his hands. After he had been in the job for a few months, he began waking at night with aching in both forearms and hands and a sensation of numbness in both hands. His symptoms interfered with his sleep. He would wake with his fingers locked in a flexed position and he would have to pull them straight. Mr Gray then went on to provide Dr Wearne with a history of the unloading incident on 22 January 2003. Dr Wearne expressed the opinion that the type of work the plaintiff said he had been performing with Herzog steel had the potential to cause the development of his hand symptoms. He found Mr Gray an honest man and accepted the history he had been given. He concluded that the injuries to Mr Gray's hands were solely due to his employment with Herzog. He ascribed one-fifth of the plaintiff's back problems to pre-existing degenerative changes in the lumbar spine and four-fifths to his employment with Herzog Steel. (Dr Wearne seems to have accepted that Mr Gray had no back symptoms before the incident in January 2003, and I would treat his apportionment of causation as a medical rather than a legal one). Dr Wearne thought that the prognosis for Mr Gray's hands was excellent whereas his back symptoms were likely to continue as a mild to moderate chronic condition.

48. Dr Wearne saw Mr Gray again in November 2006. He had made a satisfactory partial recovery following the surgery to his hands, leaving him with mild incapacity, likely to improve over time. The wrist problems were in Dr Wearne's opinion related to Mr Gray's employment with Herzog and not his subsequent employment as a spray painter.

49. The solicitors for the present plaintiff also had Mr Gray assessed in February 2007 by Dr Nicholas Burke, occupational physician. The history taken by Dr Burke was that Mr Gray had first developed symptoms of tingling and numbness while working with Herzog. The symptoms had worsened after he left Herzog and led eventually to surgery which gave an excellent result with no continuing symptoms. Mr Gray also gave a history of the development of a trigger finger affecting three fingers of the left hand, and to some extent two fingers of the right hand. He said that this condition had developed after he left Herzog, and that it had been largely resolved by surgery performed by Dr Roberts.

50. Dr Burke expressed the opinion that the type of work Mr Gray said he had been performing with Herzog would not normally be expected to result in the development of carpal tunnel syndrome, but it was possible that there was a causal connection. It was unlikely that the trigger finger symptoms had been caused through his employment.

51. As one would expect, the settlement figures in relation to Mr Gray's claim provide no assistance in apportioning any part of the damages to the carpal tunnel, hand and finger condition. It is clear that those representing the defendant in that action, if it had proceeded to trial, would have sought to persuade the court that there was no causal connection between the plaintiff's employment with Herzog and the development of his hand symptoms. It seems to me that this is an issue where Mr Gray as plaintiff would have had considerable difficulty satisfying the onus. There was no contemporaneous record of any mention of hand symptoms prior to the termination of the plaintiff's employment with Herzog. He gave a history to his general practitioner in January 2003, following the unloading incident, in which no such symptoms were mentioned. He said nothing about any such symptoms to Dr Eaton in March 2003. He made no mention of any such symptoms when he saw Dr Billett in December 2003. There is no evidence that he had made any mention of the symptoms to Dr Joseph, his general practitioner, by July 2005. We know that Dr Joseph referred Mr Gray to Dr Roberts in December 2003 because of symptoms in the hands and fingers, and that Mr Gray gave Dr Roberts a history that the symptoms had developed in August 2003, a month or so after Mr Gray left his employment with Herzog and commenced with Queanbeyan Joinery as a spray painter. There is an unavoidable inference that Dr Joseph in July 2005 did not see the hand symptoms as related to Mr Gray's claim against Herzog. Nor did Dr Roberts, who appeared somewhat embarrassed at being asked by Mr Gray's solicitors to alter his first medical report. It seems to me more likely than not that Mr Gray would not have been able to satisfy the Court that the carpal tunnel syndrome was causally related to his employment with Herzog, still less that it was due to any negligence on the part of Herzog.

52. The third incident pleaded by Mr Gray in his statement of claim, the knee injury in July 2004, if compensable in his action against Herzog at all, would only have been compensable if he satisfied the Court that the incident on the staircase had occurred because of symptoms following his back injury in January 2003. If he had failed to satisfy that onus, his award would not have included any amount in respect of the July 2004 injury. If he had succeeded, his damages would have been found to have flowed from the January 2003 incident. The July 2004 incident was not a separate tort: it could not have been suggested that it was, as it did not happen until a year after Mr Gray left Herzog's employment. Thus all damages recovered by Mr Gray would have been casually connected with the incident on 22 January 2003 other than those related to the hands, fingers, and the carpal tunnel syndrome generally. It is apparent that he could not have succeeded in establishing any casual connection between his employment with Herzog and the trigger finger symptoms.

53. That being so, I am satisfied that, if Mr Gray's action had proceeded to trial, his damages would have been limited to those which flowed from the unloading incident on 22 January 2003. It is of course possible that in framing the settlement offer which the plaintiff accepted, Herzog's insurer and lawyers subjectively included some allowance for the possibility that Mr Gray might succeed on the carpal tunnel issue. It is also possible that Mr Gray and his lawyers might have factored in some such amount. These are matters of speculation. The best I can do is approach the matter on the basis of my satisfaction as to what would probably have happened if the action had gone to trial.

54. There is some question as to whether the workers' compensation payments which had been made by the present plaintiff to Mr Gray and on his behalf prior to judgment in his action are to be characterised as part of the amount subject to the dual insurance principle. In Allianz Australia Workers Compensation (NSW) Limited v NRMA Insurance Limited [2007] ACTSC 2; (2007) 207 FLR 153 at paras 41-42, I decided that this Court should follow the decision of the NSW Court of Appeal in Australian Iron & Steel Pty Limited v Government Insurance Office of New South Wales [1978] 2 NSWLR 59, where the Court held that earlier payments of workers' compensation became on judgment part of the damages payable by the employer: per Glass JA at 63-64. The dual insurance principle hence covers the whole judgment of $192,687.58. The plaintiff does not seek contribution in respect of the agreed costs of $40,000.

55. It is not necessary for me to decide whether the plaintiff would have been entitled to contribution if the judgment sum had included damages in an unidentifiable amount for a separate work-related injury nor arising out of the use of the insured vehicle.

Conclusion

56. The plaintiff initially sought declaratory relief, but proceedings were commenced prior to the entry of judgment in Mr Gray's action. The Court is now in a position to order the entry of judgment for a calculable amount, and the declaratory relief sought is unnecessary.

57. The plaintiff is entitled to recover from the defendant one half of the amount recovered by consent by Mr Gray against the insured employer, that is $96,343.79.

Interest

58. The plaintiff claims interest up to judgment. Counsel for the plaintiff submitted that interest should be calculated from the date the cause of action arose, which I have found to be 22 January 2003. In support of that approach to the calculation of interest, counsel referred me to General Accident Insurance Company of Australia Limited v Sun Alliance Insurance Limited (1989) 5 ANZIC 60-917, a decision of the Supreme Court of New South Wales (Brownie J). I have read that decision, which related to interest in a dual insurance case, and I have also read the substantive judgment in the same action, reported in the same volume at 60-916. It is apparent that his Honour did not calculate interest from the date of the original cause of action. His Honour allowed interest for precisely twelve months, which may have been of some significance or simply a coincidence. The original cause of action had arisen some three years earlier. I am unable to read this judgment as laying down any general principle about the calculation of interest in dual insurance cases. As a matter of common sense it seems to me that interest should run from the date the plaintiff paid, or became liable to pay, the judgment in favour of Mr Gray. That judgment was entered by consent on 30 May 2007. There was an ancillary consent order that no interest would be payable provided that the judgment amount was paid within twenty-eight days of judgment or receipt of Medicare and Centrelink certificates, whichever was the later. There is no evidence as to the date of receipt of the certificates or the actual date of payment. I note that it was open to the plaintiff to lead such evidence. In the circumstances it may operate unfairly against the defendant for me to assume that the certificates were received in time for the judgment to be satisfied within twenty-eight days. In the absence of such evidence in seems to me fairer to make assumptions to the advantage of the defendant rather than the plaintiff, and I propose to calculate interest on the assumption that the judgment was satisfied three months after it was entered, that is on 30 August 2007. Interest should be calculated at the prescribed rate of 9% per annum. The period from 30 August 2007 to 24 April 2008 is thirty-four weeks or 238 days. I allow interest of $11,339.00.

59. There will be judgment for the plaintiff for $107,682.71. I shall hear the parties as to costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 24 April 2008

Counsel for the plaintiff: Mr GA Stretton

Solicitors for the plaintiff: Sparke Helmore

Counsel for the defendant: Mr GJ Lunney SC

Solicitors for the defendant: Moray & Agnew

Date of hearing: 3 March 2008

Date of judgment: 24 April 2008