Friday 30 April 2010
FIRTH v SUTTON
Judgment
1 ALLSOP P: The appellant, a solicitor who is the principal of the firm Firths, appealed against a verdict and judgment of the District Court for $107,415.29 plus costs arising out of the found negligence in 1998 and 1999 of an employed solicitor, Mr James Govan, in the handling of a workplace personal injury claim.
2 In 1994, the respondent, Ms Renee Sutton, began working at the local supermarket near where she lived, run by a company called Go-Lo Distributions Pty Ltd ("Go-Lo") when she was thirteen years old and still attending high school. From 1994 to 1998, she worked on Thursday evenings for four hours and on each Saturday for eight hours.
3 Her work involved lifting and moving boxes, some of which she described as "very heavy", up to 15 to 20 kilograms. She was given no training or advice about safe procedures in lifting. She began feeling pain in her back about one year after commencing with Go-Lo, but she did not report it as she thought she could "handle it". She continued at school, played sport and continued her work at Go-Lo.
4 On 12 February 1998, the pain in her back became intense. She was picked up from work by her mother, Ms Northey, who took her to their local general practitioner, Dr Jayadev. There was no frank incident on 12 February that caused the pain. Dr Jayadev, with the assistance of an x-ray carried out in March by Dr Fung, diagnosed a strained lumbosacral spine.
5 Ms Sutton resumed work at Go-Lo on light duties at the check out register, but she had difficulty remaining standing. She later ceased work at Go-Lo. She terminated her schooling in June 1998, about a month after turning 17. She did so because of the pain in her back which also prevented her playing sport in respect of which pastime she was a keen participant.
6 Ms Sutton was "an average student" with a strong work ethic, who exhibited competitiveness in her sport before her participation ceased. She had an ambition to become a flight steward employed by an airline.
7 Ms Sutton completed a workers compensation claim form on 21 April 1998.
8 After leaving school in June 1998, Ms Sutton commenced a six month full-time course in office administration at Bankstown TAFE, which she completed in early 1999. She was able to sit and stand at will at TAFE (unlike at school) which made the undertaking of the course practicable.
9 Around the time of completion of the TAFE course, in early 1999, Ms Sutton commenced full-time work with an advertising company as a receptionist, earning $240 per week.
10 Meanwhile, on 9 December 1998, Ms Northey contacted Firths to see what could be done for her daughter about any claim in respect of her back. Ms Northey spoke on the telephone to Mr Govan, who then undertook carriage of Ms Sutton's claim. Proceedings under the Workers Compensation Act 1987 (NSW) (the "WC Act") were thereafter commenced.
11 After this initial phone call, Mr Govan sent a letter dated 14 December 1998 to the plaintiff directed to workers compensation rights, pointing out that if the medical evidence supported a degree of permanent impairment to her back and legs she would be entitled to bring a claim for lump sum compensation in addition to her entitlements to payment of weekly compensation and reasonable and necessary medical expenses. The letter enclosed a costs agreement reflective of only proceedings under the WC Act being taken and authority forms to enable medical reports to be obtained.
12 Mr Govan wrote to Ms Sutton again on 15 December 1998 acknowledging receipt of a report of a CT scan in June 1998 and stating that on the basis of that report the firm would be confident of establishing an entitlement of lump sum compensation, although it would be necessary for the doctors to draw a causal nexus between the presenting pathology and the work at Go-Lo. The letter expressed confidence that any pre-existing degenerative causes would be unlikely to be related to the presenting problems.
13 Mr Govan did not arrange a conference with Ms Sutton or her mother and took no statements as to liability or quantum. He gave no advice prior to 1 September 1999 as to any claim for damages at common law as modified by the WC Act.
14 On 1 September 1999, Ms Sutton, Ms Northey and Mr Govan attended a conciliation conference at which a settlement of $27,500 was reached with Go-Lo's workers compensation insurer for lump sum payments under the WC Act, ss 66 and 67. This was the first occasion that Ms Sutton and Ms Northey had met Mr Govan (or anyone else from Firths). By entering the settlement, the respondent made an election which prevented her from pursuing rights at common law against Go-Lo.
15 It is the loss of those common law rights about which Ms Sutton complained in the District Court. The primary judge (Hungerford ADCJ) found the appellant (through his employed solicitor, Mr Govan) negligent and awarded damages in the amount earlier referred to.
16 The appellant asserted in the appeal that Mr Govan was not negligent. The appellant also asserted that the advice, such as it was, explicit and implicit, was correct, or at least sufficiently close to the advice which a prudent and competent solicitor would have given as not to have been causative of any loss.
17 Given the assertion by the appellant of lack of negligence of Mr Govan it is necessary to deal in some detail with his handling of Ms Sutton's claim. Though Mr Govan took no statements about liability and quantum, it should be stated at the outset that the workers compensation claim was attended to promptly and with efficiency by him. No complaint was made, nor could it be made, about the promptitude and efficiency of the service provided by Mr Govan in relation to prosecuting Ms Sutton's workers compensation claim.
18 It is also necessary to say something about Mr Govan's experience and his evidence in the case. The events took place in 1998 and 1999. Mr Govan began his legal studies in 1992 while employed part-time as a law clerk in a city firm of solicitors. He worked at that firm full-time while studying at night. The firm with which he worked had a general practice. Mr Govan did general clerking work attending to all manner of cases. After graduation, he commenced work as a solicitor with a firm specialising in personal injury work. He attended to personal injury cases from workplace accidents and became familiar with claims for workers compensation and modified common law damages. After approximately three years as a clerk and three years as a solicitor, Mr Govan moved to Firths (in April 1998) where he continued to specialise in personal injury claims, primarily workplace injury claims. Thus, by the end of 1998, Mr Govan had some three to four years experience as a solicitor attending principally to workplace injury claims (in addition to his experience as a clerk). When he came to give his evidence in February 2009, Mr Govan had the advantage of another nine years' experience. He had moved firms, in the meantime, but had continued to practise in the personal injury field. He therefore brought to the witness box his experience of over 13 years working as a solicitor in workplace injury claims. To that extent, he brought a significant body of expertise to his evidence. His evidence was given without equivocation, straightforwardly and directly responsively to the questioning he underwent. At no time did he seek to prevaricate or be overly defensive. It is to his personal credit that he provided clear and responsive answers, sometimes against his interest, in circumstances where his conduct was the subject of professional criticism. It is appropriate to make these remarks for two reasons. First, the primary judge concluded that Mr Govan's conduct of the file was less than could be expected from a reasonably prudent solicitor. For the reasons which follow, I agree with that conclusion of the primary judge. In those circumstances, it is appropriate to note how Mr Govan acquitted himself in the witness box. The second aspect of the importance of the comments is that the concessions against interest should be understood as frankly made by a now highly experienced solicitor and are to be given significant weight in assessing that solicitor's conduct almost a decade before, when he did not have the advantage of the full body of experience that he had at the time of his evidence.
19 Mr Govan promptly and efficiently qualified a number of medical practitioners to take a full history, to examine Ms Sutton and to give their opinions on diagnosis, prognosis and permanent incapacity.
20 By letter of 28 January 1999, Mr Govan sought an opinion from an orthopaedic surgeon, Dr Rosenberg. The letter of request for a medical report asked for a diagnosis, a view as to the cause of the condition, a view as to total or partial incapacity and an assessment of any permanent impairment of the back. Dr Rosenberg, who practised at Bankstown, had seen Ms Sutton in June 1998, when he had prepared a report for MMI (which was, I assume, an insurer of Go-Lo). In substance, the report in June 1998 was as provided in late February 1999.
21 In late February 1999, Mr Govan received Dr Rosenberg's two page report. After reciting the history, Dr Rosenberg referred to Ms Sutton's pre-existing back condition saying the following:
"Clinically her spine was well aligned. She was stiff and uncomfortable forward flexing to her knees only. She extended slowly. She was maximally tender in her left buttock. Straight leg raising on the left reproduced her leg pain. Femoral nerve stretch test was negative. There was weakness on the left leg of toe dorsiflexion and ankle eversion. Reflexes however were present and symmetrical. Hips, knees and sacroiliac joints were unaffected.
Plain x-rays showed L5 pars defects with a spondylolisthesis at the lumbosacral level. The CT scan confirmed this finding and also a significant left sided L4/5 disc prolapse, impinging the L5 nerve foot. I believe the disc prolapse is the cause of her current state and this is directly the result of her job of bending and lifting. Pars defects are present in up to 8% of the population and obviously are pre-existing.
In fairness to Renee however, a heavy physical job with a lot of bending and lifting would reasonably have contributed to her back pain. Also with this relative weakness more strain would be placed on the disc above resulting in the disc prolapse.
She initially was advised to receive physiotherapy and also undergo a back strengthening regime. She was also suggested to change jobs to a lighter office type job, one that avoided heavy physical exertion on the back.
She was advised that in the worst case scenario, if her symptoms failed to settle she had an excellent chance of improvement in her left buttock and leg symptoms with excision of the L4/5 disc. In the future she is at higher risk of having ongoing problems with her back and in the worse case scenario would require a lumbar fusion.
I did not believe that she required this at present and the only surgery contemplated would be an L4/5 disc excision and neurolysis of the L5 nerve root.
I have not seen her since June over 8 months ago.
To summarise, I believe Renee Sutton's current predicament of back and left leg pain is largely due to the L4/5 disc prolapse she has sustained. This is a direct result of the conditions of her work. She does have L5 pars defects with Grade 1 spondylolisthesis but that is not her problem at present.
Finally in response to point 8, when last seen I would have assessed the percentage permanent impairment of her lumbar spine at 10%.
I would have assessed a 5% permanent impairment of the left leg at and above the knee as a result of referred pain from her spine.
Finally, the natural history of a disc prolapse is to settle but it can be a lengthy process. The role of surgery is to aid in recovery if symptoms fail to settle."
22 In early February 1999 Mr Govan arranged an examination of Ms Sutton by Dr Wolfenden, a consultant neurologist. Mr Govan requested a full report from him as to history, diagnosis and prognosis, course of treatment, permanent impairment and causal relationship of the injury to work.
23 On 13 April 1999, Ms Sutton saw Dr Wolfenden. Dr Wolfenden's report, in addition to describing his examination, provided his opinion as follows:
"She was working as a shop assistant for 3 years (Go-Lo) and ceased in February, 1998. She had to do everything including packing, cleaning and lifting heavy boxes. In 1997 she began getting back pain on and off aggravated by lifting but it became very bad in January and February, 1998. Pain was more often with cramps and trouble sleeping. Pain also goes into the left buttock and the left calf and she is getting cramps in the toes of both feet.
She hasn't improved since she left the job but has started a job 2 weeks ago as a receptionist which is much easier.
She has had physiotherapy which made her worse and she requires Panadeine forte every day. The back is not improving. She used to do a lot of sports but can't do this now.
Surgery has been suggested but she wants to avoid this.
Her general health is good. She had had no previous back trouble. She is single and lives with her parents. She used to help around the house but can't do it now.
…
OPINION: Miss Sutton has a constitutional disturbance at the lower end of her lumbar spine comprising of a defect on each side of the arch of the 5 th lumbar vertebra (pars interarticularis defects) allowing the 5 th lumbar vertebra to slip forward on the 1 st sacral vertebra (spondylolisthesis). This constitutional defect has rendered her back more prone to injury from lifting strains.
On this background the lifting strains described above when working as a shop assistant have led to disc protrusions and irritation of sacral nerve roots on the left with consequent left leg sciatica.
Unfortunately physiotherapy has not been of benefit though possibly some form of traction may help her. I don't think many people would be keen to operate on the back of one so young but eventually, if back pain proves too constant and severe, a fusion operation may be required.
Miss Sutton is now completely unfit for all work involving bending and lifting and is quite unsuitable to return to her previous occupation. She is only fit for some sedentary occupation as she is at present doing.
I consider that she has a permanent impairment of her back equivalent to approximately 25% of a most extreme case and a 15% permanent loss of the efficient use of her left leg at or above the knee to include any impairment below the knee.
Of the total impairments as assessed above, I consider that 90% of them are attributable to the work performed as a shop assistant and 10% of them are attributable to the underlying constitutional defect in her lumbar spine."
24 On 20 April 1999, Mr Govan wrote to Ms Sutton advising of Dr Wolfenden's views. The letter stated that with the view of Dr Wolfenden "we are now able to duly make your claim for lump sum compensation in accordance with the Act and regulations and have done so by letter of even date to the employer and the insurer (copy enclosed)."
25 On 28 April 1999, Mr Govan wrote to Dr Blake, an orthopaedic consultant, providing information and seeking an opinion. Mr Govan's letter stated the following:
"Our client presents with back and left leg injury sustained during the course of her employment as a shop assistant, originally in or about December of 1997 and possibly aggravated by her continued work up until February of 1998.
The treating orthopaedic specialist, Dr Rosenberg has not ruled out lumbar fusion as a future worse case scenario.
Dr Wolfenden who examined our client for medico-legal purposes assessed permanent impairment of the back at 25% and permanent loss of efficient use of the left leg at or above the knee at 15%.
There would appear to be a pre-existing constitutional problem in the lumbar spine which would appear to have been aggravated by the nature and conditions of her employment.
We look forward to receiving your complete report including the following:
a. The history given to you by our client.
b. Your diagnosis and prognosis.
c. Your recommended course of treatment.
d. Whether you believe the condition to have stabilised at the present time, and if so, assessments of permanent impairment of our client's back and loss of efficient use of the left leg at or above the knee (and any other body part that may be affected).
e. Whether you accept our client's presenting problems, in their entirety, to be related to the work injuries as described and if not, comments as to other contributing factors.
f. Whether you accept our client as being partially or totally incapacitated for work and if partially the restrictions would you impose upon her returning to her pre-injury duties and to open labour market generally."
26 Ms Sutton saw Dr Blake in August 1999. Dr Blake provided an extremely full report of Ms Sutton's history including work and school history, domestic and leisure activity and present complaints. His opinion included the following:
"(b) Diagnosis is of a major extrusion of the L4/5 disc in the lower back, occurring gradually, and producing pressure and slight damage to the left L5 nerve root. A developmental condition (defects of the arch at L5 with no apparent slip but developmentally small L5 vertebral body) is found but appears not to be the main source of her present symptoms particularly involving the nerve root to the left leg.
No injury as such has occurred, and symptoms have developed gradually. There is no indication that the disc prolapse was actually caused by her work, but the undertaking of physically demanding work in an immature spine from the age of 13, was associated 2 years later with the development of her symptoms. Significant disruption of her life has resulted, and she is not able to complete her HSC and go on to become an air hostess, or continue with her main sports. She has been able to train and undertake light office work. Significant pressure and irritation of the left nerve root - S1 - and in my opinion she is close to having operation advised (rather than just offered), particularly should there be any increase in nerve root tension and damage to the nerve root. Prognosis is uncertain, it is possible spontaneous improvement will occur. It is also possible some deterioration will occur, in which case surgical treatment will need more definite consideration. It is not possible to predict which way a particular person will go. At present she feels her condition is still deteriorating.
(c) Recommended course of treatment is to continue under her family doctor and with specialist assessment, to observe and monitor the neurological signs in the left leg in particular.
(d) At present she feels she is deteriorating. On the basis of just one examination it is not possible for me to comment firmly on this. It is now 1 year and 8 months since the onset of her first symptoms, and it is reasonable to consider her stabilised for the purpose of assessment, providing allowance is made for possible surgical treatment should deterioration continue. In my opinion Miss Sutton has 25% impairment of her back. This is in relation to a most extreme case. In my opinion Miss Sutton has 15% permanent loss of efficient use of the left leg at or above the knee, taking into consideration loss below the knee.
(e) In my opinion her present problems relate to the constitutional condition in her lower back brought to light and aggravated by her heavy work requirements.
(f) Miss Sutton is partially incapacitated for work. She is not fit for any work which places particular stress through her back in the form of heavy lifting or carrying, prolonged or repeated bending, or the need to sit or maintain any position for prolonged periods without the ability to get up and move about as required."