Boothman v George

Case [2024] WADC 26

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BOOTHMAN -v- GEORGE [2024] WADC 26

CORAM:   PALMER DCJ

HEARD:   2-13 OCTOBER 2023, DEFENDANT'S SUBMISSIONS FILED ON 22 OCTOBER 2023 & PLAINTIFF'S SUBMISSIONS FILED ON 6 NOVEMBER 2023

DELIVERED          :   30 APRIL 2024

FILE NO/S:   CIV 3518 of 2020

BETWEEN:   RONAN DAVID BOOTHMAN

Plaintiff

AND

CHRISTOPHER MAGER GEORGE

Defendant


Catchwords:

Medical negligence - Treatment provided by chiropractor - Breach of duty - Causation - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C

Result:

Judgment for the plaintiff against the defendant
Damages assessed

Representation:

Counsel:

Plaintiff : Mr P E Jarman
Defendant : Ms F A Stanton

Solicitors:

Plaintiff : Bradley Bayly Legal (Perth)
Defendant : Clyde & Co (Perth)

Case(s) referred to in decision(s):

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Ellis v East Metropolitan Health Service [2018] WADC 36

Nathaniel Corbett by his Next Friend Debra Todd v Town of Port Hedland [2021] WADC 55

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Veitch v Connor [2023] WADC 38

Watson v Foxman (1995) 49 NSWLR 315

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

I.     Introduction and factual background

A.      Introduction

B.      The uncontroversial factual background

1.       Mr Boothman

2.       Dr George

3.       Back pain in 2008

4.       Back pain in 2011/2012

5.       Back pain and surgery in 2016

6.       Mr Boothman's back between 2016 and 2018

7.       Mr Boothman injures his back and starts seeing Dr George

8.       Mr Boothman's initial consultation with Dr George on 5 January 2019

9.       Mr Boothman sees Dr George on 12 January 2019

10.     Mr Boothman sees Dr George on 19 January 2019

11.     Mr Boothman sees Dr George on 23 January 2019

12.     Mr Boothman sees Dr George on 9 February 2019

13.     Mr Boothman sees Dr George on 7 March 2019

14.     Mr Boothman sees Dr George on 27 April 2019

15.     Mr Boothman strains his back surfing in early May

16.     After Mr Boothman left the Doubleview Chiropractic Clinic

17.     19 May 2019

18.     20 May 2019

19.     21 May 2019

20.     22 to 24 May 2019

21.     24 May 2019

22.     25 May 2019

C.      The witnesses

1.       Dr Mark Lam

2.       Dr Peter Silbert

3.       Dr Peter Watson

4.       Dr Bruce Watts

5.       Dr Greg Finch

6.       Dr Carlo Rinaudo

7.       Mrs Fiona George

II.     The treatment Dr George gave Mr Boothman on 18 May 2019

A.      The evidence given by Mr Boothman and Dr George and Dr George's notes

1.       The extent of Mr Boothman's and Dr George's recollection

2.       The fallibility of human memory

3.       The reliability of Dr George's consultation notes

4.…

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Details
AGLC
Boothman v George [2024] WADC 26
Case
[2024] WADC 26
Decision Date

CaseChat Overview and Summary

In Boothman v George, the plaintiff, Mr Boothman, sought damages for medical negligence against the defendant, Dr George, a chiropractor. Mr Boothman alleged that Dr George's treatment caused him harm. The case was heard in the relevant court and ultimately resulted in a decision in favour of the plaintiff.

The primary legal issue before the court was whether Dr George breached his duty of care to Mr Boothman, and if so, whether that breach caused the plaintiff's injuries. A further issue was whether Mr Boothman's evidence at trial was inconsistent with his prior statements, and if so, what weight should be given to that evidence. The court needed to determine the appropriate quantum of damages, if any, to be awarded to Mr Boothman.

In addressing the first issue, the court found that Dr George did indeed breach his duty of care. The court considered the standard of care expected of a chiropractor and whether Dr George's actions fell below that standard. The court also assessed whether the plaintiff's injuries were a direct result of the defendant's actions. Regarding the second issue, the court found that while there were some inconsistencies in Mr Boothman's evidence, they were not significant enough to undermine the overall credibility of his testimony. The court concluded that Mr Boothman's evidence was largely consistent and reliable, and the alleged inconsistencies did not materially affect the outcome of the case. The court assessed the extent of Mr Boothman's injuries and determined the appropriate amount of damages to be awarded.

The court ordered Dr George to pay damages to Mr Boothman for the injuries sustained as a result of the negligent treatment. The specific amount of damages was determined based on the evidence presented and the court's assessment of the plaintiff's losses. The court emphasised the importance of healthcare professionals adhering to the required standard of care to avoid similar incidents in the future.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Whether Mr Boothman's evidence was inconsistent with his prior statements Dr George submitted that the evidence that Mr Boothman gave at trial was materially inconsistent with previous accounts he had given in three material respects.[27][27] Defendant's Closing Submissions, pars 74, 79 - 81. First, it was submitted that Mr Boothman gave evidence at trial for the first time that Dr George had 'hyperextended' his back while he was on the Leander table.[28][28] Defendant's Closing Submissions, pars 33 - 38. Secondly, it was submitted that Mr Boothman used the word 'thrust' at trial when describing the further treatment but used the words 'pressing' and 'pushing' to describe the force in his statement of claim and his statement.[29] It was also submitted that Mr Boothman did not use the word 'thrusts' in his answers to the questions posed by Dr Watts.[30][29] Defendant's Closing Submissions, par 74.1.[30] Defendant's Closing Submissions, par 74.3. Thirdly, it was submitted that Mr Boothman made no mention of an alleged twisting action being so forceful that his knee dropped during the further treatment in his statement, or in any of the letters of instruction provided to expert witnesses on Mr Boothman's behalf or in any of the expert reports.[31] It was submitted that it would be expected that each of these matters would have been addressed in Mr Boothman's statement or the letters of instruction.[32][31] Defendant's Closing Submissions, par 74.2.[32] Defendant's Closing Submissions, pars 33 - 38, 79 - 81. With regard to the first alleged inconsistency, Mr Boothman did not explain what he meant by 'hyperextended' and precisely what he meant was not explored with him at trial. The word 'hyperextend' is defined in the Butterworths Medical Dictionary to mean 'to extend forcibly beyond normal limits eg. a limb in orthopaedic treatment'.[33] The same dictionary defines 'hyperextension' to mean 'in orthopaedics, the forcible over‑extending of a limb for the purpose of correcting deformity'.[33] Butterworths Medical Dictionary (2nd ed). If what Mr Boothman meant by saying that Dr George 'hyperextended' his back, was that Dr George had forcibly extended his back beyond normal limits, then it seems likely that Mr Boothman would have mentioned this in the accounts that he gave prior to trial. Given that Mr Boothman suffered a back injury, it seems likely to me that he would have perceived the forcible extension of his back beyond normal limits as pertinent to mention. As Dr George submits, Mr Boothman did not mention his back being hyperextended in any of the accounts that he gave prior to trial. This might suggest that Mr Boothman's evidence was inconsistent. It seems to me, however, that an assessment of whether Mr Boothman's evidence was inconsistent and, if so, the significance of that inconsistency requires a clear understanding of what Mr Boothman meant. As Mr Boothman's use of language was not always precise,[34] I am not prepared to assume that he intended to use the Butterworths Medical Dictionary meaning of hyperextend.[34] See the discussion about Mr Boothman's use of the word 'thrusts' below.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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