Ellis v Rantzos [2003] NSWSC 1194

New South Wales Supreme Court

CITATION : Ellis v Rantzos [2003] NSWSC 1194 HEARING DATE(S) : 18, 19, 20, 21 November 2003 JUDGMENT DATE : 16 December 2003 JURISDICTION: Common Law Division JUDGMENT OF : Windeyer J at 1 DECISION : Judgment for defendant

CATCHWORDS : TORTS - negligence - duty of care to employee - extent of injuries - conflict in medical evidence tendered in written reports - no oral evidence of doctors - DAMAGES - employment injury - Workers Compensation Act 1987 S151G and S151H - proportion of most extreme case LEGISLATION CITED : Workers Compensation Act 1987 s151G, PARTIES : Louise Maria Ellis (Plaintiff) Emmanuel Rantzos t/as Rantzos (Defendant) FILE NUMBER(S) : SC 20517 of 2001 COUNSEL : Mr M Cranitch SC with him Mr B Quinn (Plaintiff) Mr G M Watson SC with him Mr N E Chen (Defendant) SOLICITORS : G H Healey & Co - Sydney (Plaintiff) Sparke Helmore (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WINDEYER J

TUESDAY 16 DECEMBER 2003

20517/01 LOUISE MARIA ELLIS V EMMANUEL RANTZOS t/as RANTZOS

JUDGMENT 1 The plaintiff, formerly Louise Ellis, now Louise Simotas was born in 1967 and is now 36 years of age. She was born in London and came to Australia in 1980. She left school in 1982 and commenced an apprenticeship as a hairdresser with David Jones. She remained with the David Jones hairdressing salon for about 12 years. In 1992 she got an additional job with the Sydney Tower Restaurant, acting as a hostess on the top level between 6.00 and 11.00 pm two to three nights a week. She left David Jones in 1994 or early 1995 and was then employed at the Sydney Airport souvenir shop for about two years. After that she worked in a car parking operation as a car park attendant, taking the tickets at a console. 2 On 7 November 1998, the plaintiff commenced work with the defendant in his hairdressing business at 142 Clarence Street, Sydney. The defendant has operated that business and other businesses in Sydney for about thirteen years and his father operated similar businesses before that. The plaintiff was allocated to what was called the number two chair or station in the hairdressing salon. It is accepted that the chair should have had a height adjustment lever or handle. The plaintiff's claim is that there was no handle and that the chair was set at maximum height. She said that she complained to the defendant about this but he treated this as a joke and said that nothing could be done. She said that she got a pair of platform shoes to help. She said that the result of having the chair set at maximum height, was that she had, at times, to stand on her toes to reach customers' heads and that her hands were held above shoulder level for ordinary cutting. She said that this was the busy time of the year and that she was cutting "forty to sixty heads per day". The system in the salon was that employees were allocated to particular chairs and that their takings were entered into the cash register roll with the chair number shown. The plaintiff said that the defendant would not let her move chairs, although she did from time to time when he left the salon. 3 Towards the end of December, on a date fixed by her as 20 December 1998, but which could not have been that date, because that was a Sunday, and it is not suggested that the shop was open on a Sunday, she said that she was cutting the hair of a very tall customer who was over six feet in height. She said that she felt a crack in her neck and pins and needles down her right arm. She dropped clippers or scissors. At this time the plaintiff was working about thirty-eight hours per week, and sometimes some extra overtime, particularly at busy times. The plaintiff continued cutting and finished off the tall man. She did not stop work and in fact worked until Christmas, although she said she had pain in her neck and numbness in her fingers and she could not feel the scissors. She thought, however, that she was just over tired and that the tiredness caused severe headaches, which she began to get more or less continuously. Previously she had migraine headaches about every six months, but after this incident she said that she had them more or less continuously. 4 After Christmas the shop was quieter, being holiday time although business picked up as school went back. At this stage the plaintiff was cutting about twenty to thirty heads per day and she kept going, she said, thinking that the pain would ease off. 5 Towards the end of April the plaintiff had time off work and she saw Dr. Yenson on 20 April 1999 who said she should have one or two weeks off work. He referred her to an orthopaedic surgeon, Dr Viglioni, who in turn referred her to a Dr Sekel. I will return to all of this in due course. 6 The defendant said that there was no handle missing from the chair. He said that the chair was not fixed at the highest position and that the height could be adjusted quite easily with the handle. He said that all the chairs in his salon were in good condition. He said that he did not have to have any maintenance carried out on those chairs and they had worked well during the thirteen years he had owned the business. He said that whereas the plaintiff had said that she had told an employee Mr George Papastavros of her problems and he had rubbed her neck and shoulder he had not been told of this. This man was not called. No inference should be drawn against the plaintiff as a result of this nor I think against the defendant, although the defendant's evidence was he had made some very recent attempts to contact Papastavros without success. 7 Two persons who were employed by the defendant around 20 December 1998 and both of whom remain employed by him gave evidence in general supporting his contentions. Mary Wilson to whom the plaintiff said she had complained said that there had been no complaint made to her about the height of the chair. However, she admitted her memory was not necessarily accurate. Mr Vedders, who is a tall man, and would have no difficulty in cutting the hair of average sized persons at close to the highest setting on his chair, said that he had used chair number two in 1998 and that it was in working order. He was away from the salon from September 1998 until 17 March 1999. He gave evidence about maintenance on the chairs contrary to that of the defendant. I did not think that he was a reliable witness and I do not accept his evidence. I formed the view he would not say anything contrary to the interests of the defendant. 8 Mary Konstantakopoulos was called by the plaintiff to give evidence. It is not quite clear how this occurred as she was contacted on day 3 having read about the case in the newspaper and being told of a television snippet by her employer. She had worked for the defendant at Clarence Street in 1992. She worked on chair number 8. She said that chair had a side lever which did not work. The chair was fixed in position. She complained to the defendant who said it could not be fixed. It was not fixed during the eighteen months she worked for the defendant. She said that over the Christmas period there she could have cut to, 55 or 60 "heads a day". In spite of the challenge to her as she had been involved in litigation with the defendant and his family, I consider her to be a witness whose evidence should be accepted. 9 It is and has been necessary when considering this matter to consider attacks which have been made very successfully on the credit of the plaintiff. Those attacks relate to her having made claims for social security benefits at a time when she was engaged in full time employment with Strathfield Car Radios in a position organized by her husband. Those attacks also relate to claims which she made on Swan Insurance Company under a policy which provided for the insurer to make payments due on a motor car which she had purchased on credit terms. While there may be some dispute as to whether or not the moneys received from Swan were payments received as a result of false statements being payments to which the plaintiff had no entitlement – (and for present purposes I proceed on the basis there may have been entitlement if the plaintiff could not work as a hairdresser) - there can be no doubt that she made false statements to an investigator who interviewed her on behalf of the insurance company. There can also be no doubt that she arranged for her doctor to send certificates to the Department of Social Security to support her claim for unemployment benefits at a time when she was in employment. There can be equally no doubt that for some reason she was prepared to make untrue statements to doctors in answer to questions. For instance she regularly told doctors that she did not smoke but she does smoke. She told some she did not drink alcohol, but she does. She is not a person whose evidence would usually be relied upon, and she is a person whose evidence must be treated with great care so far as her claimed disabilities are concerned. Nevertheless, I have come to the conclusion that her claim as to the state of the chair to which she was assigned should be accepted. On this matter I prefer her evidence to that of the defendant. The impression that I got of the defendant in the witness box and listening to his evidence was that it could not be relied upon so far as the condition of his premises was concerned. 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. I should add that the evidence showed that it is perfectly clear that all chairs in the salon are not maintained in perfect condition, although that does not establish the position as claimed by the plaintiff. While it is of course well known to the courts that plaintiffs from time to time make dishonest claims, this particular claim about the chair is not one which would readily come to mind. I accept the plaintiff's evidence that she liked hairdressing and was pleased to have returned to it. If she had been faking some story about the chair then there is every likelihood that she would not have returned to work at all, rather than have returned to work for another four months. 10 It follows from this that I accept the story about the defective chair; the evidence makes it quite clear that this was an unsafe and undesirable position in which the plaintiff was required to work by her employer. Under those circumstances he is in breach of his duty to his employee. I so find. INJURIES 11 The plaintiff said that following the injury she had experienced pins and needles in the right arm and had pain in her right wrist. She thought that she was overtired and things would settle down. She continued at work up to Christmas and after the few days public holidays at Christmas went back to work. When she felt the crack in her neck she said she finished that job and was able to continue to the end of the day. She said that she commenced to experience more regular severe headaches. At the end of April 1999 she said her fingers were almost numb and she had bad pain in the right wrist. She consulted Dr Yenson about this on 20 April 1999. She said that she had been to see him for 'flu and other problems between January and April and her evidence was that she had at least discussed with Dr Yenson her hand and wrist problems prior to April. I do not accept that. While I have preferred her evidence to that of the defendant so far as the condition of barber shop was concerned, I find it difficult to accept a lot of her other evidence without some outside support. The fact that she has made false claims for social security; must have deceived Dr Yenson in obtaining certificates to support her claims; has made false statements to an insurance investigator and has made false statements to doctors as to smoking and drinking and on the basis of the film admitted into evidence, has at least exaggerated her movement problems, makes it difficult to accept much of her evidence. She could have called Dr Yenson in her case. This does not necessarily mean that she did not have the pain. It only means that I do not accept that she discussed it with Dr Yenson prior to April. Nearly all the medical reports in evidence support this finding. 12 The plaintiff's now husband and then fiancé was a store manager for Strathfield Car Radios. The plaintiff commenced part time work at the Kingsford store in December 1999 and then commenced full time work at the Hurstville store in March 2000. The work involved administration and sales. The plaintiff says that she coped with this if she did not lift heavy objects and did not overuse her right hand. She said that she got assistance from her husband. 13 The plaintiff married in 2000. For about a year she and her husband lived in the home of her husband's parents. Mr Simotas's mother did most of the domestic work during the day. After the marriage the plaintiff left Strathfield Car Radios because she thought it undesirable to work in the same place as her husband and she obtained work as a receptionist with a firm of solicitors for six months. She said that she was put off without reason but I consider it more likely than not that she was dismissed as a result of taking a lot of days off to attend medical examinations for insurance purposes and for this case. After losing the job the plaintiff undertook a full time six month TAFE course in business legal administration which, on the evidence she completed in November 2002, although it may have been 2001. She did well in the course. She has had reasonably regular part time jobs since then and she can cope with them if there is no regular typing or other work requiring much use of the right hand. 14 The plaintiff says that she cannot do heavy housework such as lifting and vacuuming. She says she needs to rest often and requires a lot of assistance from her husband, who is not used to doing domestic tasks as he comes from a Greek background. She says that she gets headaches all the time and is on constant medication. She says that she holds right arm in a sling position at home. She wears neck pads at home. She does not go to the gym. She does not go dancing like she used to. She is constantly tired. She gets a burning sensation in the neck and she cannot raise her right arm easily above her head for tasks such as brushing her hair or washing her hair. She says she cannot turn her neck fully while driving the car and she can only get into the car with some concentration and difficulty. She cannot hang clothes on an ordinary clothesline. Films put in evidence tend to show some of these claims are exaggerated such as that about difficulty in getting into the car. The plaintiff's husband supported her claims as to difficulties in the house but his evidence must be treated with care as he was clearly aware of her false claims on social security. Medical matters 15 The plaintiff, through no fault of her own, has attended a vast number of medical examinations for this case and perhaps for workers compensation and other insurance purposes. She has, however, not seen any treating specialist doctor since the end of 1999. She has seen Dr Yenson as her regular GP over the years and probably two or three times a year and I accept part of the purpose for these GP consultations was problems with her neck, shoulder and right arm. 16 As I have said, I do not accept the plaintiff's evidence that she consulted Dr Yenson about her arm and hand problems or any neck injury prior to 20 April 1999. It is necessary first to determine whether the crack in the neck which the plaintiff said was when the onset of her problems occurred. If it did it would be necessary to determine whether it occurred as a result of an unsafe work system and if so whether it resulted in any continuing problems for the plaintiff. If I were to determine that the crack in the neck did not happen it would still be necessary to decide whether or not the plaintiff's injuries which she now claims to have suffered and her continuing claimed disabilities resulted from an unsafe system of work on a chair which did not function properly. 17 The plaintiff's version is that she felt the sudden crack, dropped her clippers, felt faint, sat down for five minutes, and then finished cutting the hair of the very tall customer and that she then continued working with increasing difficulty until she consulted Dr Yenson on 20 April 1999 about a painful right wrist. Dr Yenson reported that she had pain and tenderness in her right wrist and tenderness over the right elbow. He thought this was due to overuse in her work and he referred her to Dr Viglioni. Dr Viglioni thought that she had carpal tunnel syndrome and gave her an injection which did not help. He then referred her to Dr Sekel. X-rays of the cervical spine showed it to be "a little flexed suggesting muscle spasm", but other doctors did not accept this as necessarily accurate. Dr Sekel saw the plaintiff in the middle of May 1999. He reported pain over the right upper limb, and some diminished power through the right arm. He found the cervical spine had full pain free range of movement. There was some tenderness over C4/5 posteriorly in the midline. He thought that further tests were required and ordered an MRI. This showed a disc protrusion at C4/5 and the report stated, "at no level is there compression effect on the cord or nerve root sleeves". Nevertheless in a report dated 28 May 1999 to the workers compensation insurer he stated that the plaintiff's report of pain in her right arm had increased. The power was diminished and that sensation to pinprick "is diminished subjectively over the entire right arm and there is no muscle wasting". His opinion was that the plaintiff had a C4/5 disc prolapse causing irritation of nerve roots to the right arm. He ordered a cervical collar. He thought her symptoms were genuine and came as a result of a C4/5 disc lesion. Dr Sekel did arrange for the plaintiff to be admitted to hospital for a course of traction but this produced no improvement and on some reports appears to have made things worse. Dr Sekel thought that the plaintiff should have a C4/5 disc fusion. After discussion she decided not to take the risk. 18 There are no reports at all from Dr Yenson as the treating doctor tendered by the plaintiff but two reports of Dr Yenson were put in evidence by the defendant and may of course have been put in by the plaintiff if that had not happened. The point however is that there are no reports since 10 October 1999. 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. The plaintiff just went where she was directed, not knowing the purpose of most examinations, at least so far as the specialty of the examining doctor was concerned. 20 Two neurologists gave reports tendered by the plaintiff. Dr Milder saw her in September 1999. The crack in the neck was not mentioned. He reported resisted neck movement and tenderness to palpitation "diffusely over the right cervical spine." He thought that she suffered from lesions of the right median nerve at the wrist and the right ulnar nerve at the elbow. He thought that a reduction in pain within the right upper limb might diminish following decompressive procedures to the right median nerve at the wrist and the right ulnar nerve at the elbow. I add here that nobody seems to have considered that these procedures should be carried out. He said a fusion might be required but might not necessarily relieve the pain. He did consider that her hand problems were attributable to stresses on her spine and upper right limb during her hairdressing work. 21 Dr Darveniza was the second neurologist who reported on the plaintiff. He saw her on 13 March 2002. He was told of an occurrence in December 1998 when the plaintiff leaned over a customer and "developed a cracking sensation between the neck and right shoulder accompanied by a burning over the right shoulder fold extending to the interscapular region on the right". He noted that the plaintiff had also been seen by Dr Hirsch, a neurologist, who could not reach a definite diagnosis and Dr Schwartz, a neurologist, "who wondered about some form of entrapment". On examination he found that there was painful restriction of neck movements, tenderness in the neck and "marked variability in motor effort precluding accurate assessment of power". There was no objective wasting or weakness and reflexes were symmetrical. There was a subjective change to touch temperature and vibration sensation in the whole of the right upper limb. He thought that the plaintiff had suffered a stretching or wrenching injury "to the right forequarter in the accident 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". He thought her conditions were permanent but that she remained fit for general duties not requiring repetitive heavy use of the right arm. 22 Dr Grahame Mahony, an orthopaedic surgeon, examined the plaintiff on 7 October 1999 and again on 25 February 2002. The plaintiff apparently told him that in late December 1998 she noticed pain in the back of her neck and that by January the pain gradually radiated from the neck to the right arm until she sought advice from Dr Yenson in April 1999. He thought that the plaintiff developed "symptoms referable to a cervical disc lesion with nerve root irritation, affecting the right upper limb." He set out in a passage difficult to comprehend other matters which could not be excluded and he thought in addition she might have symptoms referable to thoracic back strain. He did not think that the C4/5 disc was solely responsible for her symptoms. He saw her again in 2002 when her complaints were much the same as previously and as reported to most of the other doctors. I set out the first three paragraphs of his report under "Opinion", the first of which does not seem to be entirely clear and which does not seem to be supported by anybody else: OPINION