Ellis v Rantzos (t/as Rantzos Hairdressing) - [2005] NSWCA 266

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ellis v Rantzos [2005] NSWCA 266

FILE NUMBER(S):
40093/04

HEARING DATE(S): 20/06/05

JUDGMENT DATE: 15/08/2005

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

JUDGMENT OF: Handley JA Santow JA Basten JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20517/01

LOWER COURT JUDICIAL OFFICER: Windeyer J

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

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

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'

LEGISLATION CITED:
Workers Compensation Act 1987

DECISION:
Appeal dismissed with costs

JUDGMENT:

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

HANDLEY JA: I agree with Basten JA.
SANTOW JA: I agree with Basten JA.
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.
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.
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”.
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.”
This description of the precipitating event…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 266
Decision Date: 15 August 2005

CaseChat Overview and Summary

In *Ellis v Rantzos (t/as Rantzos Hairdressing)*, the appellant, a hairdresser, appealed a decision concerning her claim for workers compensation. The dispute arose from an injury allegedly sustained due to a defective customer chair that was fixed too high. The primary judge had made findings regarding the appellant's condition and the extent of her non-economic loss, which the appellant sought to challenge on appeal.

The central legal issues before the court were whether the trial judge erred in his assessment of the medical evidence and, consequently, in his determination of the severity of the appellant's non-economic loss. Specifically, the court considered whether discrepancies in the histories recorded in expert medical reports justified their rejection by the trial judge and whether the judge had properly applied the principles for assessing non-economic loss under section 151G of the *Workers Compensation Act 1987* (NSW), which requires determining the severity as a percentage of "a most extreme case."

The court reasoned that the trial judge's approach to the medical reports, which were tendered without extensive submissions or oral evidence, was understandable given the manner in which the trial was conducted. The judge's conclusions were largely based on his assessment of the appellant herself, with the medical reports serving primarily as background information. While the judge made findings that flowed from medical assessments, such as dismissing the relevance of a protrusion at C4/5, these findings were well open on the evidence. The court noted that it would have been open to the judge to find that the evidence failed to establish an "organic basis" for the appellant's continuing complaints. The court emphasised that the assessment of non-economic loss under section 151G involves an exercise in evaluative judgment, and unless the trial judge erred in principle, an appellate court would only intervene if the conclusion reached was manifestly too low.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.” 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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