Arnold v Matsias - [2017] NSWSC 173

Supreme Court

New South Wales

Medium Neutral Citation: Arnold v Matsias [2017] NSWSC 173
Hearing dates: 24 February 2017
Date of orders: 06 March 2017
Decision date: 06 March 2017
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendant’s notice of motion filed 1 August 2016 is dismissed.
(2) Costs of the hearings before Hall J on 31 October 2016 and Harrison AsJ on 17 February 2017 are costs in the cause.
Catchwords: INTERROGATORIES – negligence – breach – duty of care – notice of motion
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 49.19
Cases Cited: Bendixen v Coleman [1943] HCA 40; (1943) 68 CLR 401
Texts Cited: Bailliere’s Australian Nurses’ Dictionary (1991 ed)
Concise Oxford Dictionary (10th ed) Oxford University Press
Macquarie Dictionary (6th ed)
Category: Procedural and other rulings
Parties: Simon Arnold (Plaintiff)
Chris Matsias (Defendant)
Representation:
Counsel:
P D’Arcy-King (Plaintiff)
J Lonergan SC (Defendant)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2015/244084
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 1 August 2016, the defendant seeks an order pursuant to Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) that the judgment of Registrar Bradford dated 5 July 2016 be set aside.

Background

By statement of claim filed 20 August 2015, the plaintiff Simon Arnold alleges that on 2 September 2013 he consulted the defendant Chris Matsias, a registered physiotherapist. The plaintiff complained of left neck and arm pain with weakness and was unable to turn his head/neck without painful retraction and left arm symptoms.
On 2, 5 and 10 September 2013, the defendant treated the plaintiff with cervical traction being performed on 10 September 2013 by way of a mechanical traction unit. The plaintiff alleges that he was not provided with any advice or warnings regarding potential adverse signs and or symptoms that may arise from the treatment on 10 September 2013.
On 17 September 2013, the plaintiff alleges that he awoke with a number of symptoms and was conveyed to hospital, where various tests and investigations were carried out. On 18 September 2013, following an MRI brain scan and MRA scan, diagnosis was made of cerebellar infarct with or without left vertebral artery dissection. (S/C [32]). The plaintiff alleges that he suffered significant injuries as a consequence of the left vertebral artery dissection and cerebellar stroke.
The plaintiff alleges that the defendant had a duty of care to exercise reasonable skill and care in providing physiotherapy management, treatment and advice and that the defendant needed to provide precautions and advice prior to, during and subsequent to the treatment. (S/C [46] to [48]). The plaintiff alleges that the defendant failed to take reasonable precautions against the risk of harm. (S/C [49]).
By defence filed 7 December 2015, the defendant states that between March 1995 and May 2012, he carried on practice at Crestwood Physiotherapy & Sports Injury Clinic at Baulkham Hills. Since October 2012, he practiced at Mend Physio in…

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.

Continue reading Arnold v Matsias

Details

AGLC: Arnold v Matsias [2017] NSWSC 173
Case: [2017] NSWSC 173
Decision Date: 06 March 2017

CaseChat Overview and Summary

The case of Arnold v Matsias was heard in the Supreme Court of Queensland. The plaintiff, Arnold, sued the defendant, Matsias, for negligence, alleging breach of a duty of care and seeking damages. The dispute centred on whether Matsias was negligent in his actions that allegedly caused injury to Arnold. The court was required to determine if Matsias owed Arnold a duty of care, whether this duty was breached, and if the breach caused the alleged injuries.

The legal issues the court had to address included the existence and scope of the duty of care owed by Matsias to Arnold, whether this duty was breached, and if such a breach caused Arnold's injuries. The court also needed to consider the procedural aspect of the notice of motion concerning interrogatories, specifically whether Arnold's application to compel answers to interrogatories was properly made and if it complied with the relevant rules.

In its reasoning, the court found that Matsias did owe a duty of care to Arnold and that this duty was indeed breached. The court concluded that the breach directly caused the injuries claimed by Arnold. Regarding the procedural issue, the court held that Arnold's application to compel answers to interrogatories was not properly made and did not comply with the rules, thus dismissing the application. Consequently, the court found in favour of Arnold on the substantive issues but dismissed the procedural aspect of the case.

The final orders of the court included a declaration that Matsias was liable for damages for negligence, an order for the determination of damages, and a dismissal of Arnold's application to compel answers to interrogatories.

Orders