Ellis v Rantzos

Court of Appeal (NSW)|2005-08-15|Before: Handley JA, Santow JA, Basten JA, Windeyer J

JUDGMENT OF: Handley JA at 1; Santow JA at 2; Basten JA at 3

CATCHWORDS: Workers compensation - assessment of damages - hairdresser suffered injury as a result of defective chair for customers that was fixed too high - whether discrepancies in histories recorded in expert medical reports justified their rejection - section 151G of the Workers Compensation Act 1987 (NSW) - determination of severity of non-economic loss as a percentage of 'a most extreme case'

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Southgate v Waterford (1990) 21 NSWLR 427 CASES CITED: Dell v Dalton (1991) 23 NSWLR 528 Thatcher v Charles (1961) 104 CLR 57 Rabay v Bristow [2005] NSWCA 199

Louise Maria Ellis (Appellant) PARTIES: Emmanuel Rantzos trading as Rantzos Hairdressing (Respondent)

A.J. McQuillen (Appellant) COUNSEL: G.M. Watson SC/N.E. Chen (Respondent)

GH Healey & Co (Appellant) SOLICITORS: Sparke Helmore (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40093/04 SC 20517/01

HANDLEY JA SANTOW JA BASTEN JA

15 August 2005 LOUISE MARIA ELLIS v EMMANUEL RANTZOS t/as RANTZOS HAIRDRESSING Judgment 1 HANDLEY JA: I agree with Basten JA. 2 SANTOW JA: I agree with Basten JA. 3 BASTEN JA: By a statement of claim filed on 4 June 2001, the present Appellant commenced proceedings in negligence against her former employer, the present Respondent. She alleged that she had suffered injury during the course of her employment by the Respondent as a hairdresser. 4 The relevant employment commenced on 7 November 1998. The first manifestations of symptoms occurred shortly before Christmas, or about six weeks after the employment commenced. Her employment continued until 20 April 1999 when she ceased working for the Respondent. 5 The nature of the injury suffered was the subject of dispute at the trial conducted in the Common Law Division, in November 2003. The Appellant stated that the first manifestations of her symptoms included pins and needles down her right arm, pain in her neck and numbness in the fingers of her right hand. In addition, symptoms variously described as "migraine headaches" and "severe headaches", which she had previously suffered once every six months, became a frequent occurrence occurring, she said, "more or less continuously". 6 At the heart of the Appellant's case was the claim that the chair to which she had been assigned in the hairdressing salon was jammed at its maximum height, with the result that, especially with tall customers, she was required to work with her hands at an uncomfortable height. The particular incident which she said triggered her symptoms involved a customer whose height she estimated at "6 foot and a half", was said to have occurred on or about 20 December 1998. In her evidence, she described what happened in the following terms: "As I went to reach for the front of his head I just felt a crack in the back of my neck and my hands. The clippers fell out of my hands." 7 This description of the precipitating event caused the Appellant significant difficulties in the presentation of her case. The first difficulty arose from the fact that she did not seek medical attention for her neck or arm until she spoke to her general practitioner, Dr Yenson, on 20 April 1999. The short history which she apparently gave on that occasion was summarised by Dr Yenson in a report to a workers compensation insurer dated 12 June 1999, in the following terms: "Ms Ellis first consulted me for a painful right wrist on 20.4.1999, which had been present for two months and was getting worse. She is a hairdresser and is right handed and worked long hours cutting hair."

Dr Yenson referred her to Dr Viglione, an orthopaedic surgeon, who recorded a similar history, though with more detail as to the nature of her symptoms, which he thought were "very strongly suggestive of carpal tunnel syndrome". He thought she might also have a form of tendonitis. Both these diagnoses were later discounted. 8 In May 1999 she saw a second orthopaedic surgeon, Dr Sekel who noted that she had "since January last year (sic) developed swelling into the right wrist and hand, both upper limbs developing a feeling of fatigue, the right more than the left". Dr Sekel required magnetic resonance imaging ("an MRI") of her cervical spine, which demonstrated a "C4/5 central disc prolapse". Dr Sekel was of the view that a C4/5 discectomy and fusion was required to reduce her symptoms of pain. 9 In August 1999 the Appellant was referred for a nerve conduction study by a neurologist. On 25 August 1999 Dr Raymond Schwartz, having undertaken the study, reported: "The median nerve palm to wrist mixed nerve responses are at the upper limits of normal consistent with possible early median nerve dysfunction at the wrist. The remainder of the study is normal. EMG demonstrates mild chronic partial denervation in muscles subserved by C3-C5 on the right consistent with mild nerve root entrapment." 10 On 7 October 1999, the Appellant was seen by Dr G. G. Mahony. He recorded her history in part as follows: "In late December 1998 whilst working as a hairdresser a total of about 56 hours a week, she noticed pain in the back of her neck. She continued working, however, in January 1999 she noticed pain gradually radiating from the neck to the right arm. She continued her normal work until April 1999 and sought advice from Dr Yenson." 11 Dr Mahony expressed his conclusions, at least in part, as follows: "Ms Ellis has developed symptoms referable to a cervical disc lesion with nerve root irritation affecting the right upper limb, a capsulitis of her right shoulder and a rotator cuff lesion could not be excluded, as well as a right medial epicondylitis, a right ulnar nerve neuritis and a right carpal tunnel syndrome. … I would not consider that the C4/5 disc would [be] solely responsible for her symptoms and I would advise further investigation before any surgical treatment is carried out." 12 On 13 March 2002 the Appellant was seen by a neurologist, Dr Paul Darveniza. He concluded: "On examination there was painful restriction of all neck movements, tenderness over the posterior and right side of the neck and there was marked variability in motor effort precluding accurate assessment of power. However, there was no objective wasting or weakness and reflexes in the upper limbs were symmetrical. … She did not bring any imaging. However, X-ray of the cervical spine on 5 May 1999 was normal apart from a reduced range of cervical flexion. MRI of the cervical spine on 21 May 1999 showed a disc protrusion at C4/5 without neural encroachment. As noted previously, MRI of the neck and thoracic outlet on the right was reported as normal. In summary, this lady suffered a stretching or wrenching injury to the right forequarter in the accident described, leaving her with chronic neck pain and migrainous headaches twice per week, sensory loss in the right upper limb in a non-anatomical distribution and restricted use of the right upper limb limiting her as detailed above. There was no evidence of an underlying primary neurological disorder. It is now over three years since the on-set of her symptoms and her current disabilities must be considered permanent and stable." 13 On 24 May 1999 the Appellant was seen, at the request of the workers compensation insurers, by Dr Lloyd Hughes, an orthopaedic surgeon. Dr Hughes concluded: "This woman's symptoms and signs are consistent with an intervertebral disc protrusion in the cervical spine as suggested by the MRI scan. It is clear that this condition arose spontaneously and was not the result of any injury and cannot be considered due to her work activities as a hairdresser. The condition is due to a degenerative condition in the disc involved and in the presence of degeneration of the disc, a protrusion can occur spontaneously without any precipitating external cause. Based on clinical assessment, it is my opinion she would have difficulty performing her usual duties as a hairdresser and hopefully the condition will resolve spontaneously with the help of physiotherapy including a neck exercise program."

Dr Hughes was thus supportive in the sense that he treated the disc protrusion as explaining her symptoms; but unsupportive in the sense that he found her condition was not caused by her work. 14 Against this evidence, there were other reports prepared by doctors to whom she had been referred by the Respondent, or his insurers. On 5 December 2001, Dr J. M. Matheson, a consultant neurosurgeon, rejected the suggestion that a C4/5 disc lesion could produce the arm pain complained of and also rejected the suggestion that it could be the result of the hairdressing activity described. He diagnosed her work injury as a muscle strain, without neck injury and concluded that the Appellant had fully recovered from any injury suffered and had no permanent impairment. 15 The third opinion obtained on behalf of the Respondent was a report from Dr Peter Slezak, whose expertise was identified by the trial judge as "specialist physician". Dr Slezak was sceptical of the complaints made by the Appellant. He concluded: "Ms Ellis has developed [an] atypical chronic cervical/right upper limb pain syndrome. The protracted, atypical clinical course, coupled with the presence of significant abnormal illness behaviour pattern, renders the prognosis for further improvement in Ms Ellis' symptoms to [remain] guarded. I consider that Ms Ellis is fit to continue working in a full time capacity as a legal administrator and indeed it is likely that she would be able to perform her previous work duties as a hairdresser."

Dr Slezak's report was dated 11 February 2003. 16 Other reports were prepared and all the medical evidence was presented to the trial judge in written form, with no one called to give oral evidence or to be cross-examined. Given the considerable discrepancies in the material thus presented, the trial judge was left with an unenviable task. 17 Before leaving the medical evidence, it is necessary to refer to two reports prepared by Dr R. Adler, a specialist in rehabilitation medicine, who examined the Appellant on 30 November 2002. His first report was dated 8 January 2003; a second report, dated 12 January 2003, dealt with contrary views expressed by the doctors to whom the Appellant had been referred by the Respondent or his insurers, including Dr Matheson, Dr Slezak and Dr Hughes. This second report resulted in further reports from the doctors whose views were criticised by Dr Adler who, for the most part, with varying degrees of acerbity, adhered to their former opinions. 18 Dr Adler's first report set out, under the heading "Onset of injury" the claims by the Appellant that "she experienced a sharp cracking sensation in her neck and her right arm went 'dead', with pins and needles in the arm". Dr Adler also referred to the incident involving the tall client and the elevated position of the Appellant's arms. The Appellant sought to place significant weight on the opinions of Dr Adler and they therefore need to be identified. His first opinion was under the heading "Diagnosis" and read in part: "[Ms Ellis] suffered damage to the right C4-5 disc, with disc protrusion evident on the earlier MRI. This has caused neck pain and headaches. She also suffered a right cervical nerve root radiculitis, this giving rise to referred right arm pain, paraesthesia and numbness as a consequence of the nerve root injury. The nerve root injury arose as a result of lengthy periods of maintaining the arm in an elevated position and therefore resulted in a traction overload of the lower right cervical nerve root. The nerve root was exposed to cumulative trauma and has a permanent injury arising."

He further concluded in relation to "causation": "The present neck and right arm disability is a result of the cumulative trauma arising from her employment as a hairdresser at the time of onset of her symptoms in December, 1998." 19 In relation to her fitness for employment as a hairdresser, Dr Adler concluded: "Therefore [the Appellant] is not fit to return to her pre-injury employment as a hairdresser where frequent and sustained elevation of the right arm would be necessary. This will result in aggravation of the cervical nerve root radiculitis and give rise to a deterioration of right arm pain symptoms."

Findings of trial judge 20 His Honour made an express finding in relation to the employment circumstances of which the Appellant complained. Thus, at [9] his Honour stated: "I find that the chair was defective and that it was fixed in a position which was much too high for the plaintiff to operate in a comfortable or safe position. If she sustained injury as a result of the unsafe system of work the defendant is liable." 21 The next question was whether and, if so, to what extent, the Appellant had suffered injury. Given the way in which the trial had been run, it was entirely understandable that his Honour found it necessary first to determine "whether the crack in the neck which the plaintiff said was when the onset of her problems occurred" in fact happened: at [16]. His Honour was not satisfied that the crack occurred: at [32]. That conclusion was not surprising, given the history provided by the Appellant to her doctors in April 1999. It is not the subject of challenge, but it is treated by the Appellant on this appeal as in effect a false issue, a position similar to that apparently accepted by the end of the trial. However, it is reasonably clear from the transcript that it was a matter given some weight during the trial and was not a matter which his Honour could or should have ignored. 22 The final conclusion reached by the trial judge in relation to the nature and extent of the injury suffered followed the requirements of the statutory scheme referred to below. His Honour held at [34]: "The loss of the plaintiff is far removed from a most extreme case. I find that it is at most 15% of a most extreme case, which would be $34,860. I should add this is based on acceptance of the plaintiff's claim of not continuing but quite regular suffering of migraine headaches and some continuing pain in her right arm mostly of a somatic nature."

The calculation undertaken by his Honour was required by s 151G of the Workers Compensation Act 1987 (NSW) as in force at the date of the injury. Section 151G(2) provided as follows: "151G(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded."

Section 151G(4) provided that if the amount of non-economic loss was assessed to be below a particular figure, no damages for non-economic loss were to be awarded. It is common ground that, at the relevant date, the maximum amount was fixed at $232,400 and the floor which had to be achieved before an award could be made, was $41,050. That was a figure equivalent to a proportion of 17.66% of the maximum, and thus above the 15% level determined by the trial judge. Accordingly, there was no award for non-economic loss. Given the amount of the calculation, it also followed that the injury did not constitute a "serious injury" for the purposes of s 151H of the Workers Compensation Act , as then in force, and as a result no damages could be awarded for economic loss: see s 151H(1). The end result was that the Appellant failed in her claim before the trial judge. 23 His Honour made two findings critical of the Appellant, which were not the subject of challenge and could not realistically have been reviewed by this Court. The first finding concerned her credibility as a witness; the second concerned her complaints as to the severity of her injuries and was made in the following terms at [33]: "I must also find on the evidence that the plaintiff has not established that she could not return to work as a hairdresser. It follows that so far as general damages are concerned inability to do work cannot be claimed as a head for loss of enjoyment of life. I also find on the evidence that the plaintiff would be [able] to do at least some [of] the housework which she says she cannot do. I find that her complaints are much exaggerated. This is a finding on the medical evidence and the film shown in evidence but is in addition supported by her lack of credibility as a witness of truth." 24 For reasons which will be explained below, critical to the Appellant's case is her ability to challenge the finding with respect to her capacity to work as a hairdresser. Unless that finding can be shown to be in error, it will not be possible, in practical terms, to overturn his Honour's assessment of the case as 15% of a most extreme case. 25 In reaching his conclusion as to the existence of a degree of injury, flowing from the finding of an unsafe system of work, due to the defective chair, his Honour stated: "I accept that the plaintiff did suffer a traction injury to her right arm as a result of elevation of her hands required to cut hair with the chair not properly functioning … ."

But his Honour continued with the qualification "that any major effects of that injury came to an end long ago". In addition he stated: "For the most part whatever problems are said now to continue are imaginary rather than real." 26 In the lengthy paragraph which led to that conclusion, his Honour started with the conclusion that "there is no organic basis for the plaintiff's continuing complaints as to her right arm and right shoulder". 27 As the Appellant emphasised, the damages which were awarded appeared to be based on acceptance of a level of disability, caused by the injury in 1998 and continuing to the date of trial, some five years later. Further, his Honour appears to have accepted that there were other more significant consequences of the injury ("major effects"), which had been temporary and had come to an end "long ago". Unfortunately, those effects were not identified. 28 Furthermore, it is not entirely clear why, if the current problems could for the most part be described as "imaginary" and having "no organic basis", his Honour was minded to award even 15% of a most extreme case. On one view, that may have been a generous assessment, albeit one which did not assist the Appellant in her appeal. 29 His Honour made two further findings after referring to the lack of "organic basis" for the continuing complaints. He stated: "On the evidence I must find that the plaintiff has not established that the protrusion at C4/5 was caused by her work with the defendant and that in any event it has not been shown to be the cause of her present claimed problems."

Challenges on appeal 30 The challenge to the findings of the primary judge had, in effect, two limbs. The first was that his Honour should have rejected or substantially discounted the value of the medical reports tendered on behalf of the Respondent, because of discrepant histories recorded by those doctors. The second basis of challenge relied upon apparent inconsistencies in certain findings made by the trial judge, set out above. 31 The first basis of challenge was directed to establishing that the trial judge should have discounted the views of those experts for the Respondent who did not provide a statement of the history of the injury consistent with the evidence given by the Appellant at trial, or as recounted by Dr Adler. However, this line of challenge ran into two difficulties. The primary difficulty is that the opinion of an expert may be discounted on the basis of substantially incorrect factual assumptions, but those factual assumptions must be assessed against the findings made by the trial judge: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64]-[65] (Heydon JA). As already noted, the findings of the trial judge did not accord with the history recounted by Dr Adler and, to the extent that they were favourable to the Appellant, they were limited to an acceptance of regular severe migraines and continuing pain in the right arm. As noted above, it appears that his Honour intended to qualify the seriousness of these findings to some extent. 32 Further, it cannot be said that Drs Matheson, Slezak and Hughes did not consider these claims. For example, the history set out by Dr Matheson in his report of 5 December 2001 demonstrated that he considered these complaints but did not consider that the nature of the injury was consistent with production of a disc lesion, or that the disc lesion produced the arm pain complained of. He did not reject the symptoms described, but attributed them to "muscle strain" rather than the neck injury, which he treated as the C4/5 disc lesion. Nor did Dr Slezak deny the existence of the pain in the upper arm, but rather described it as a "syndrome" for which no organic basis could be identified. This was consistent with the findings made by his Honour. Dr Hughes, in contrast to Dr Matheson, was of the view that she would have difficulty working as a hairdresser: his opinion was supportive of the Respondent's case, but only in so far as he rejected any causal connection between the incident at work and the neck condition, which he saw as a degenerative condition. 33 On the other hand, it could well be said that the factual history upon which Dr Adler relied was, to a significant extent, not accepted by his Honour. Accordingly, an analysis of the underlying assumptions of the various medical practitioners provides no assistance to the Appellant in challenging the findings made by his Honour. 34 The second limb of the challenge is of greater concern. As noted above, his Honour accepted that the Appellant suffered from a "traction injury" caused during her employment with the Respondent. The term "traction injury" is not explained in the judgment, but appears to reflect the language adopted by Dr Adler, who spoke of a "traction nerve root injury". The Respondent suggested it might also be reflective of the language of Dr Darveniza, who spoke of the Appellant suffering a "stretching or wrenching injury", leaving her with "chronic neck pain and migrainous headaches twice per week, sensory loss in the right upper limb in an non-anatomical distribution and restricted use of the right upper limb". 35 The view that she had suffered a traction nerve root injury was not inconsistent with his Honour's rejection of the protrusion at disc C4/5 as the cause of her problems. However, if his Honour were intending to accept the existence of a traction nerve root injury, which is presumably responsible for her continuing migraines and right arm pain, there was significant evidence supporting the view that she would not be able to work as a hairdresser. Accordingly, there would then be a real issue as to whether his Honour's assessment of 15% of a most serious case was not below a reasonable range for such an assessment. 36 With this problem in mind, it is necessary to return to the Respondent's experts to consider the relevance of their evidence to such a finding. As already noted, Dr Lloyd Hughes is, in the relevant sense, supportive of the Appellant's case. He thought that "there is probably some nerve root irritation from the degenerative disc lesion" and agreed she would have difficulties in working as a hairdresser. 37 Dr Slezak found that there was "no organic basis" for the alleged "sensory impairment" affecting the right arm and right side of the neck. He did not comment on the migraines. If his Honour identified an organic cause in the sense of a traumatic nerve root injury, there must be doubts as to whether the evidence of Dr Slezak assists the Respondent significantly. 38 Similarly, Dr Matheson is of the view that there simply was no relevant nerve root pathology. Again, if his Honour found that there was such a condition, Dr Matheson is of no direct assistance to the Respondent.

Conclusions 39 One aspect of his Honour's judgment which is immediately noteworthy is that, despite a detailed summary of the evidence of the principal medical practitioners, whose reports were tendered by one party or the other, his Honour did not expressly resolve the differences in their views. That approach may well have followed from the frustration expressed by his Honour as to the manner in which the trial was run, at [19]: "It is now necessary to deal with the medico-legal reports tendered in bundles by each side with few submissions by counsel being addressed to them. In a case like this that can do little other than baffle the trial judge."

His Honour returned to this theme at [32]: "In a case such as this, where there is an issue between the doctors it is not possible for the Court to accept the plaintiff's experts over the defendant's experts where reports are just tendered and there is no oral evidence of the plaintiff's doctors nor cross-examination of the defendant's doctors required to be present for that purpose." 40 There is, in my view, a further reason for the absence of reliance on the medical reports in the present case. Ultimately his Honour's conclusions turned to a significant degree on his assessment of the Appellant, with the medical reports in effect constituting little more than background information. An exception was his Honour's dismissal of the relevance of the protrusion at C4/5, on the basis that her work had not been shown to be the cause of the protrusion and on the basis that it was not shown to be the cause of her present problems, those being findings which did flow from the medical assessments, but which were well open on the medical evidence regardless of the difficulties which otherwise attended that evidence. Those findings were not seriously challenged. 41 Similarly, it would have been open to his Honour to find that the evidence failed to establish an "organic basis" for the Appellant's continuing complaints, as to her right arm and shoulder and as to her migraine headaches. That is not to dismiss the possibility of an organic basis, nor is it inconsistent with there being nerve root irritation or irritability caused by a traction injury. Even assuming the existence of such a condition, its nature, extent and prognosis was not demonstrated by the medical evidence. 42 His Honour's conclusions are expressed in terms which bear some similarity to the terminology of Dr Slezak, set out in part at [15] above. Those conclusions were open to his Honour, not because they formed part of Dr Slezak's view, but because they followed from his assessment of the Appellant. So understood, his Honour's findings are largely beyond challenge. 43 The difficulty faced by the Appellant in these circumstances is exacerbated by the nature of the legal test to be applied. As this Court has noted on previous occasions, the exercise required by s 151G(2), as in force in 1999, involves an exercise in evaluative judgment, the parameters of which cannot be defined with precision: see generally, Southgate v Waterford (1990) 21 NSWLR 427 at 442; Dell v Dalton (1991) 23 NSWLR 528 at 532 (Handley JA) quoting Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71-72, and Rabay v Bristow [2005] NSWCA 199 at [62]-[67]. Unless it can be demonstrated that the trial judge has erred in the application of proper principle, it will be necessary to show that the conclusion reached was manifestly too low. 44 Although a trial judge must reach a specific monetary figure, based on a proportion of the prescribed maximum amount, the resultant precision does not reflect the exercise being undertaken. Whilst the Appellant asserted that the plaintiff had suffered a "serious and significant disability" which should have been assessed as "certainly greater than 15% of a most extreme case", she nevertheless suggested that the appropriate range was between 16% and 20%. However, as the Respondent noted, even that range was insufficient for the Appellant's purposes. Unless the correct conclusion was a proportion above 17.7%, she would receive nothing according to the legislative scheme in force. 45 Given the assessment made by his Honour of the Appellant's condition, an appropriate range of seriousness of the injury could properly have been between 12% and 20%. On that calculation, the Appellant has not demonstrated an error of principle. Further, because the assessment depended to a large degree on the view taken of the Appellant as a witness, ultimately the challenge could not have succeeded. 46 In my view the appeal should be dismissed with costs. **********

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