Edwards v Butler - [2004] SADC 190

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EDWARDS v BUTLER
Judgment of His Honour Judge Robertson
22 December 2004
NEGLIGENCE - PROOF OF NEGLIGENCE - ONUS OF PROOF
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT
Plaintiff consulted Defendant for a remedial massage – Plaintiff injured in course of the massage – held that the Defendant performed a manipulation to the Plaintiff’s neck – Defendant did not have qualifications or training to perform manipulation – Defendant liable for breach of contract and negligence.
Plaintiff suffered injury to the cervical disc at level C6/7 – nerve compression – surgery to decompress nerve and fusion of vertebrae – plaintiff later had further surgery to decompress nerve at C5/6 – held that not proved that injury at C5/6 caused by Defendant’s negligence – Plaintiff continuing to suffer chronic pain – held to arise from organic injuries – psychological factors present – held to be also suffering from a pain disorder – on-going pain from tortious injury at C6/7 and non-tortious in injury at C5/6 – Defendant failed to discharge onus of disentangling two sources of pain – diminution in earning capacity – damages for injuries.
Health and Other Services (Compensation) Act (Cwlth) 1995; Health Insurance Act (Cwlth) 1973, referred to.
Sheldon v Sun Alliance Australia Pty Ltd (1990) 53 SASR 97; Grivas v Brooks (1997) 69 SASR 532; Graham v Baker (1961) 106 CLR 340; Mann v Ellbourne (1974) 8 SASR 298; Husher v Husher (1999) 197 CLR 138; Murray v Dawson (1996) 24 MVR 294; Dessent v Commonwealth (1977) 13 ALR 437; Carson v Knott 1999 SASC 71; Todorovic v Waller (1981) 150 CLR 402; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Griffiths v Kerkemeyer (1977) 139 CLR 161; Weinert v Schmidt (2003) 84 SASR 307; Gervan v Fenton (1992) 175 CLR 327; Sharman v Evans (1976-77) 138 CLR 563; Beasley v Marshall (No. 1) (1988) 40 SASR 544; State Government Insurance Commission v Hitchcock Unreported, 11 March 1997 BC 9700650, applied.
Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 ; Joblin v Associated Diaries Limited (1982) AC 794; Terrington v Beck (1982) 100 LSJS 265; Bonnington Castings Ltd v Wardlaw (1956) AC 613; Savini v Australian Terazzo & Concrete Co Pty Ltd (1959) VR 811; Purkess v Crittenden (1965) 114 CLR 164; Arthur Robinson Grafton Pty Ltd v Carter (1968) 122 CLR 649; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Wade v Allsopp (1976) 10 ALR 353; Redding v Lee (1982) 151 CLR 117; Assessment of Damages (4th Ed) Professor Luntz, considered.

EDWARDS v BUTLER
[2004] SADC 190
Nature of the Plaintiff’s Claim

The Plaintiff’s claim is for personal injuries alleged to have been suffered by her during the course of a massage by the Defendant on 13 January 1999. At the time the Defendant carried on business as a professional masseur for reward. It is the Plaintiff’s claim that during the course of the Defendant performing a massage on her on 13 January 1999 he undertook a manipulation to her neck, without informing her of his intention to do so, which manipulation caused serious injury to her cervical spine. The manipulation has been described in the proceedings as a “chiropractic manipulation”. It is the Plaintiff’s case that the Defendant did not have the qualifications, training or experience to undertake such manipulation and that in so doing, the Defendant was in breach of his contract to provide professional services to the Plaintiff and that he was also negligent in undertaking the manipulation. The Plaintiff seeks damages for the injuries suffered, for breach of contract and/or negligence. The Plaintiff also claims in trespass and assault. However, in reality, the Plaintiff’s claim is focused on breach of contract and negligence. If she fails to make out a case under either of those causes of action, then she certainly will not succeed in either trespass or assault.
It is the Plaintiff’s case that the manipulation caused injury to her discs at levels C6/7 and C5/6 of her cervical spine and nerve compression at both levels. As a result the Plaintiff claims that she suffers from chronic pain in her neck, right shoulder and pain and discomfort in her right arm which has a physical source and that psychiatric/psychological factors also play a role. The Plaintiff claims that the chronic pain is permanent and prevents her from undertaking any employment.
The Plaintiff seeks damages for pain and suffering, loss of amenities of life and loss of earning capacity both past and future. Furthermore, the Plaintiff seeks damages for loss of superannuation benefits, gratuitous assistance, special damages and future medical expenses.
Nature of Defendant’s Case
On 13 January 1999 the Defendant carried on a practice of a professional masseur for reward. He described himself as a remedial therapist. The Defendant said his specialty was deep tissue massage.
It is the Defendant’s case that on 13 January 1999 he performed a deep tissue massage on the Plaintiff. The Defendant claims that the massage was undertaken in accordance with his qualifications, training and skill. He denies that he performed any manipulation on the Plaintiff’s neck.
The Defendant denies that the Plaintiff was injured during the course of the massage. Furthermore the Defendant denies that any injury the Plaintiff has suffered to her cervical spine was caused by him during the massage.
It is the Defendant’s case that in any event the Plaintiff is a malingerer.
The Plaintiff’s Background – Brief Summary
The Plaintiff was born on 24 August 1959. At the date of trial she was 44 years of age. She left school in Mt Gambier about the middle of Year Twelve. Thereafter she undertook various forms of employment including clerical work and work as a receptionist. In 1980 she commenced work with Telstra in Mt Gambier. That was the same year that she married. The marriage only lasted eighteen months.
The Plaintiff held various positions with Telstra whilst she was in Mt Gambier. In 1986 she married Greg Edwards. Their first daughter was born in December 1987. Thereafter, twin daughters were born in 1993. The Plaintiff’s marriage to Greg Edwards came to an end in 1995.
In June 1986, the Plaintiff was transferred in her employment with Telstra to Adelaide. She held various positions in Telstra until June 1989 when she returned to live in Mt Gambier. At that time there was not a position available in Mt Gambier at the level she had been employed in Adelaide, so Telstra kept her on their books in the hope that a position at her level would become available in the immediate future. During this time she worked for some State Government Departments and did a little work with Telstra. Finally, in March 1990 a position did become available with Telstra in Mt Gambier and she resumed full time employment with Telstra. She held the position of business sales representative, which position was similar to an account executive. It was a very responsible position.
Whilst at Mt Gambier she undertook various courses, including marketing, sales and strategic selling courses. She also undertook courses relating to information technology and telecommunication.
In April 1997 she transferred back to Adelaide with Telstra as an Account Executive. The Plaintiff continued in this role until her injury in January 1999.
The Plaintiff’s Physical Problems Prior to 13 January 1999.
The Plaintiff had experienced discomfort in her lower back from time to time over a long period of her life. In late 1998 she was experiencing some discomfort with her lower back. Furthermore, she was suffering discomfort in her right shoulder. The area of the shoulder where she was suffering discomfort was described by her during the trial as the “right upper quadrant”. She described this as an area from the centre of the neck across to the tip of the shoulder and down to below the shoulder blades. The Plaintiff said that she felt that she had tight muscles from the centre of the neck to the tip of the shoulder and that she was also suffering from muscular pain.
The Plaintiff consulted Mr Noonan, a Chiropractor, in December 1998. The Plaintiff said that whilst her initial motivation was to obtain some treatment for the lower back, she also asked Mr Noonan to treat her shoulder problem. The Plaintiff received treatment from Mr Noonan on five occasions during the first week of December 1998. She also received treatment from Mr Noonan on 5 January 1999.
Mr Noonan gave evidence and said that the Plaintiff presented with acute soreness to the right shoulder, neck and lower back. He said that on 1 December 1998 he performed adjustments to the Plaintiff’s lower back and between the shoulders and further gave the Plaintiff light traction to her neck. Mr Noonan said that these adjustments relieved much of the problems to the lower back and between the shoulders.
Mr Noonan said that the Plaintiff’s presentation and treatment to the lower back was in the area about belt level. He said with respect to the Plaintiff’s neck that she had difficulty in rotation of the neck to the right.
On the other three consultations in the first week of December 1998 Mr Noonan said that on some occasions he made some adjustments between the Plaintiff’s shoulders and performed some light soft tissue work to the neck and shoulders. He also provided treatment to the lower back. Mr Noonan said at the consultation on 4 December he noted improvement in the mobility of her neck, although there was still some soreness. On 5 December, Mr Noonan said, he did some adjustments to some levels of the thoracic spine and at levels C3, 4 and 5 of the cervical spine.
The Plaintiff returned for further treatment with Mr Noonan on 5 January 1999. Mr Noonan said that she was complaining of discomfort to the lower back and mid‑thoracic area up to the top of the shoulder blade. He said that he did not give the Plaintiff any treatment to her neck as there had not been a complaint of soreness to her neck on that occasion.
Mr Noonan indicated to the Plaintiff that there was nothing further he could do as a chiropractor and suggested that she undergo some deep tissue massage to the shoulder.
Evidence of the Plaintiff regarding consultation with the Defendant on 13 January 1999.
The Plaintiff had commenced leave from Telstra shortly before Christmas 1998. She had returned to work on 11 January 1999. The Plaintiff said her right shoulder was still sore and so she decided to take up Mr Noonan’s suggestion that she have a deep tissue massage. On making enquiries at Telstra, the Defendant was recommended by a work colleague.
The Plaintiff said she made an appointment to see the Defendant. She attended at the Defendant’s consulting rooms at St Marys at about 2.30 to 3 o’clock in the afternoon of 13 January 1999.
The Plaintiff said that she told the Defendant she was looking for a deep tissue massage. The Plaintiff said that she told him that she had been receiving treatment from a chiropractor. She said she told the Defendant that she had a problem with her lower back on and off, all her life. The Plaintiff said that she said to the Defendant that her legs varied in length by about three quarters of an inch and that contributed to her back problems. The Plaintiff said she informed the Defendant that she was looking specifically for treatment to her right shoulder for muscle soreness and tightness in the hope that these problems would be alleviated.
The Plaintiff said she was directed by the Defendant to the massage room. There was a massage table in the room. She said that she undressed down to her underpants. After that she climbed on the massage table and lay face down. She had covered herself with towels or sheets which had been provided. Ms Edwards said that after the Defendant re‑entered the room, he commenced to massage her lower back and buttocks region with both hands and then he worked up her spine. She said that as best she could recall the Defendant was using two hands. She said that the Defendant was talking to her throughout, urging her to relax and asking her whether he was pushing too hard because he was used to working with sports people. The Plaintiff said that the Defendant then began to concentrate on her right shoulder. She said that at that point the Defendant asked her to lie on her left side. The Defendant was massaging the side of her neck and the right shoulder. She described the Defendant’s work as very hard rubbing into the muscles.
The Plaintiff said that at some stage her head was not supported. She said it was as if her head was not on the pillow that had been provided for her to place her head on during the massage. Ms Edwards said that the Defendant then placed his hands on either side of her head and did some gentle sideways movements, but she could not recall how many. The Plaintiff described these as rocking movements. She said that the Defendant suddenly and forcefully moved her head from a central position towards her left shoulder. The Plaintiff said that it felt as though he had moved the head to the left side as far as it would go and that the movement was accompanied by an audible “crunch” sound. She said that she felt a pain down her spine and emitted an “aah” sound. She said that the Defendant then returned her head to the central position and then with a forceful movement of a similar nature moved her head towards her right shoulder. The Plaintiff said this was also accompanied by an audible “crunch” sound. She said she also felt pain in her neck at the time and the pain was radiating down the right arm. She said she also felt dizzy. The Plaintiff said the pain caused her to weep in the sense that tears rolled down her face. She said that after this the consultation finished. She said the Defendant told her to dress and said he wanted to show her something.
During cross-examination the Plaintiff conceded that she no longer could be certain whether she was on her side or whether she had turned over onto her back at the time that the Defendant moved her head in a forceful fashion from the left to the right. She also conceded that she could not recall whether the Defendant was standing at the head of the massage table at this time or he was standing to the side of the table.
The Plaintiff said that her head was unsupported other than by the hands of Mr Butler. The Plaintiff said that during the course of the massage, the Defendant was standing on one side of the table and then on the other. The Plaintiff denied that the Defendant applied any ultrasound to her body. She also denied that the Defendant mentioned trigger points whilst he was massaging her. The Plaintiff also denied that after the massage, the Defendant asked her to sit up and he did some more treatment to her back.
After dressing, the Plaintiff said, the Defendant took her to a back room, pulled out an x-ray and placed it on an x-ray viewing machine. She said it was an x-ray of a spinal column. She said the Defendant told her that it was the x-ray of a seventeen to nineteen year old youth who he had treated successfully for a problem similar to hers. The Plaintiff said that both she and the Defendant then went to the reception area where a further appointment was made for Saturday, 16 January. She said that the Defendant told her to apply ice packs when she arrived home. The Plaintiff said that the Defendant told her she would feel as though she had played a couple of games of football for a while but the pain was quite normal.
The Plaintiff said that she was never told by the Defendant that he was going to undertake the forceful movements to the left and right with her head. She said she was not expecting that as part of her treatment. She said that she would not have agreed to the Defendant undertaking such treatment because that was the type of treatment performed by chiropractors.
The Plaintiff’s Evidence of Events Following the Attendance on the Defendant
The Plaintiff said that she was in pain when she drove home. She called her partner, John Freeth, seeking his urgent assistance because she was in extreme pain. The Plaintiff remained at home that evening. She took analgesics in an attempt to diminish the pain. Her partner, Mr Freeth, was not living permanently with the Plaintiff at that time. However, he remained at the house during the evening to care for the Plaintiff’s children.
The following morning the Plaintiff went to work. She said she was suffering pain. Shortly after arriving at work she rang a friend, Mark Robinson, who was a chiropractor. She said that at the time she was suffering extreme pain in the neck with the pain radiating down her right arm. The Plaintiff said that she attended at Mr Robinson’s rooms and he arranged for x-rays to be taken. These did not show any abnormalities. She said Mr Robinson advised her to go home and take some more analgesics. The Plaintiff returned home and took some analgesics but they did not alleviate the pain. She said she was in agony with pain in her neck radiating down her right arm. The Plaintiff said she could barely move.
Towards the end of the day the Plaintiff consulted with a Dr Liew. She had not consulted with Dr Liew prior to this occasion. The Plaintiff had heard that he could perform acupuncture and she went to see him in the hope that he could alleviate the pain. The Plaintiff said that Dr Liew did provide heat acupuncture. She did not obtain any relief.
The following day, the Plaintiff said she was still experiencing extreme pain. She attended the Ashford Hospital Emergency Section. Whilst at Ashford Hospital, she received Pethidine. The Plaintiff said that relieved the pain to some degree but it did not resolve. The Plaintiff said that some investigations were undertaken, including a CT Scan. She said she was advised to consult with a general practitioner the following day if the pain persisted.
The next day, 16 January, the Plaintiff said she was still experiencing extreme pain in the neck and radiating down the right arm. She did not have a regular general practitioner at the time. However, she attended at a medical practice that she had attended to some time earlier and consulted with Dr Jim Farrent. Her partner, John Freeth, drove her to the medical practice and assisted her physically because she was having difficulty with the level of pain she was suffering. Mr Farrent performed needle acupuncture on the Plaintiff. She said at this time she was also experiencing dizziness and some numbness in the fingers of the right hand. Dr Farrent also prescribed some strong analgesics. She was advised that if the pain had not improved then she should return to see Dr Farrent after the weekend.
Over the weekend the Plaintiff spent most of the time floating in Dr Mark Robinson’s heated spa pool. She was supported in the water by various friends. She did this on the advice of Dr Robinson. She understood that this was done because it took the pressure of her body. She said that pain was alleviated slightly.
On the following Monday, which was the 18 January 1999, the Plaintiff returned to see Dr Farrent. She said the pain in the neck and the right arm had not abated. She was still suffering from dizziness. Dr Farrent referred the Plaintiff to Dr Orso Osti an orthopaedic surgeon.
The Plaintiff consulted Dr Osti on 19 January 1999. The Plaintiff was taken to Dr Osti’s rooms by Mr Freeth. Dr Osti arranged for the Plaintiff to have an MRI scan. On 21 January 1999, at the suggestion of Dr Osti, the Plaintiff consulted with a Dr Broadhurst, who was a specialist musculo-skeletal physician. Dr Broadhurst informed the Plaintiff that the MRI scan showed a significant disc prolapse involving the C7 nerve route on the right hand side and referred her to Dr Oatey, a neurosurgeon.

The Plaintiff consulted with Dr Oatey on 22 January 1999 who confirmed that the MRI scan indicated that there was a sizeable disc bulge at level 6/7 of her cervical spine and was in keeping with the right C7 radiculopathy. The Plaintiff underwent surgery with Dr Oatey on 28 January to decompress the nerve. Dr Oatey also performed an anterior fusion at C6/7 level of the cervical spine using bone from her left hip as a dowel.
I have spent a little time recording the aftermath of the Plaintiff’s visit to the Defendant. I have done this as they are relevant to issues of liability and damages raised by Mr Livesey, Counsel for the Defendant. I will refer to those issues later.
Evidence of Vanessa Alexander
Over objection from Counsel for the Defendant I allowed the Plaintiff to call Ms Vanessa Alexander to give evidence. Prior to her giving evidence, I was required to rule whether her evidence was relevant and admissible. I was told that she had been a client of the Defendant and received remedial massage treatment on a number of occasions prior to 13 January 1999. I was also informed that she would give evidence of a procedure used by the Defendant where he moved her neck forcibly from a central position to the direction of one of her shoulders and then moved her head in the opposite direction towards the other shoulder. I was also told that her evidence would be that each of these movements were accompanied by a loud “crunch” sound. The Plaintiff sought the admissibility of the evidence on the ground that it was similar fact evidence.
The principle regarding the admission of similar fact evidence in civil proceedings is not in dispute. It was expressed by Bollen J. in Sheldon v Sun Alliance Australia Pty Ltd. (1989) 53 SASR 97, in the following terms (at 148):
“In civil cases, courts of South Australia would admit evidence of ‘similar facts’ if that evidence is probative, i.e. if it is logically relevant in determining the matter which is an issue”.
This statement of principle was approved by the Full Court in Grivas v Brooks (1997) 69 SASR 532 (see also: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd(1981) 36 ALR 23 at 28-31).
Ms Alexander said that her occupation was that of a disability educator who had been working with the Autism Association of South Australia for many years. Ms Alexander said that she first came into contact with the Plaintiff towards the end of 2001 when she received a referral to provide some assistance regarding one of the Plaintiff’s twins, Alexandria, who suffers from Asperger’s Syndrome, which is a form of Autism. She said that she visited the family at their Hallett Cove home on a weekly basis as part of an intervention program which involved a total period of twenty five hours. She said that the program commenced in early 2002. After the initial program she also undertook further work with Alexandria and the family at the Plaintiff’s residence.
Ms Alexander said that during the time she visited the family home she had noticed that the Plaintiff’s movements appeared awkward. She said that the Plaintiff’s neck appeared frozen and looked “… at an off angle” (T.1095.15) Ms Alexander said that on occasions the Plaintiff mentioned she was in pain. Ms Alexander said she did not make an enquiry of the Plaintiff regarding her condition. However, in the course of a conversation on the final visit of the original twenty‑five hour program, she said the Plaintiff mentioned a court case and the name Eric Butler.
Ms Alexander had prior to that time received remedial therapy treatments from Mr Butler and she mentioned that to the Plaintiff. A discussion then took place regarding the treatments she received from Mr Butler. Ms Alexander said that as a result of this discussion she was later asked to provide information which led to her giving evidence in the Trial.
In her evidence Ms Alexander said that she first received treatment from the Defendant in 1996 for generalised back and neck pain. She understood the Defendant to be a remedial masseuse. She said that after the initial treatment she returned for further treatment with the Defendant quite regularly. She said that she also received treatment from Mr Butler in 1997 and 1998. Vanessa Alexander said that in 1998 she received treatment for a type of whiplash injury she received during the course of her employment. Ms Alexander said that she also received treatment from the Defendant after 1998. It was her evidence that over the years she received treatment to her neck and shoulders and her back from the Defendant.
I pause here to mention that when The Defendant gave evidence he produced the record card of treatment of Ms Alexander. This record card showed that she received treatment from the Defendant on seven occasions in 1996, five occasions in 1997, thirteen occasions in 1998, two occasions in 1999 and two occasions in 2001. Ms Alexander also mentioned that on a few occasions she received treatment from Paul Strauss who worked with the Defendant. It is clear from the record card of Ms Alexander that many of the treatments she received involved the neck and shoulder.
Ms Alexander said that the treatment sessions with the Defendant were all very similar in that there appeared to be a routine to the treatment process. She said that the Defendant would initially give her a general rub down as she was lying face down on the massage table and then he would apply some ultrasound. Ms Alexander said that the Defendant would then push down on either side of her spine with his hands, commencing at the top and working his way down. She said this treatment would often make her back crunch or crack. She said that on other occasions the Defendant would use his elbows for really deep work. Ms Alexander said that she would be required to roll over on to her back and there was massaging done to her intercostal muscles and some times to her arms.
Ms Alexander said that the Defendant would also massage her neck whilst she was lying on her back. After that, Ms Alexander said that the Defendant would place one hand on the crown of her head and the other under her chin and would move her head to the left, with what she described as a quick movement and followed by a quick movement to the right. She described the movement as sharp and quick (T.1126.14). Ms Alexander said there was a fine line but she would not describe the movement as violent although she said it was forceful. She said that the movements to the left and the right felt like a 90 degree turn of her neck. Ms Alexander said that the movements would often be accompanied by a crack or a heavy crunch in her neck. She said that at times she would tense up because she knew that the Defendant was about to manoeuvre her head and neck. Ms Alexander said that the Defendant was standing at the head of the massage table when he performed this movement.
After this part of the treatment Ms Alexander said that the Defendant would have her sit on the edge of the table and ask her to interlock her fingers behind her head. He said he would then come from behind and it felt like he was threading his arms through her arms. She said that he would then pull her arms back. She said that following this, he would give her back a quick rub down and that would be the end of the treatment.
Ms Alexander said that when Paul Strauss treated her he followed a similar routine to Mr Butler.
Evidence of the Defendant regarding the Treatment
The Defendant described himself as a remedial therapist. He said remedial therapy is a deep massage. He described a remedial massage as “… where you dig right into sometimes underneath the muscle” (T. 1274.15). He said that whilst he has been giving massages for forty-eight years he has been practising professionally for about seventeen or eighteen years. I did not understand his evidence to be that he gave remedial massages for the entire period of forty‑eight years. The Defendant said that he had only a limited memory of treating the Plaintiff. He said he could recall the Plaintiff coming to the consultation because of the shortness of her right leg. However, he said that he could not recall treating the Plaintiff. He said that she would have received a standard treatment, which he always gave for the first visit from a person seeking treatment. Mr Butler also gave evidence that he had independent recollection of a few other isolated matters associated with the Plaintiff. However, by and large his evidence was based upon his practice, at the time, of performing a first time massage for a person who presented with complaints similar to the Plaintiff.
The Defendant produced a record card relating to the Plaintiff which he said he made up at the time of the Plaintiff’s visit. After the treatment was completed the Defendant said that he recorded on the card the treatment that he gave to the Plaintiff. He said that it was this record which allowed him to give evidence that she received treatment for a person presenting for the first time with her complaints. Again, he said he could not recall what she told him regarding the purpose of her visit but he said that he was able to identify those problems by the written record of the treatment on the card.
The Defendant described the standard treatment he provided for a first visit in detail. He said he used oil throughout the massage, to prevent friction to the skin of the patient. He said that the standard treatment only involved him using one hand for the purpose of massaging, and whether it was the right hand or the left hand depended on which side of the patient he was at the time that he was massaging. He gave a step by step description of the treatment and illustrated it by reference to photographs he produced. The Defendant also produced a video film of him treating a person, which he said depicted the standard treatment. There is little point in proceeding through his evidence of each step of what he described as the standard treatment. He gave evidence of what he said was his practice. As I said, the Defendant had no recollection of the actual treatment.
Whilst I do not intend to describe his evidence of the steps taken in the massage, I should mention one particular part of the treatment. The Defendant said part of his practice at the first treatment is to massage a client’s neck. The Defendant said that he would stand at the head of the massage table. The client would, at that time, be lying on his or her back. He said that he would remove the pillow which the client’s head had been resting on and take the client’s head in his hands. Whilst holding the client’s head in his hand, the Defendant said, he would massage moving up the neck to the base of the skull. He described this as a gentle massage. Whilst holding the client’s head, the Defendant also described a gentle muscle stretch which was applied to the neck. He said this involved asking the client to turn her head as far as she could to one side and then the muscle stretch would take place. He would then ask the client to turn her head to the other side and the same stretch would be undertaken. The Defendant also described a muscle stretch towards the end of the treatment, where the client would be required to sit up. He said in this process, the client is asked to turn their neck to one side as far as they can and the Defendant would then put his hand to the side of their jaw and ask the client to press back against his hand. He said he would then ask the client to turn her head to the other side and the same process would be repeated.
The Defendant said he could recall showing the Plaintiff an x-ray of a young man who he had treated earlier. He said that he showed the x-ray to the Plaintiff to point out that her hip was out, similar to the one in the x-ray and that this problem arose because she had one leg shorter than the other.
During the course of cross‑examination, the Defendant agreed that a manoeuvre which carries a joint beyond the normal physiological range of motion is a manipulation. He agreed that a short sharp movement that is intended to result in movement or capitation of a joint is a manipulation. He distinguished between a manipulation of a bone and a manipulation of muscle. He said that the manipulation of muscle was in the realm of the expertise of a remedial therapist whereas the manipulation of bone or joints is in the realm of the expertise of a chiropractor.
The Defendant denied that he performed a manoeuvre with the Plaintiff’s head and neck, in the manner described by the Plaintiff. In other words, the Defendant denied that he had moved her head to the left with a sharp or quick movement and to the right with a quick sharp movement. He agreed that such a movement, if performed would be a chiropractic manipulation and beyond his expertise and for which he had no qualification or training. He said that the only time he held the Plaintiff’s head in his hands was when she was lying on her back and she was performing the various muscle stretches to her neck, which he described as gentle movement.
The Defendant said that it was his practice to tell first time patients that after treatment they would feel like they had played a couple of games of football for a while. He said it was also his practice to tell the patient to go home and apply ice packs on and off. He said that he could not recall whether the Plaintiff had tears coming down her face at the end of the treatment.
The Defendant said a further appointment was made by the Plaintiff on Saturday 16 January for her to receive further treatment. He said that he received a telephone call on either Thursday 14 January or Friday 15 January from a woman who informed him that she was cancelling that appointment because her neck was sore.
The Defendant said he cannot recall any of the treatments he gave to Vanessa Alexander. He said that although he did not have any memory of treating her, she would have been treated according to the standard techniques, although he said that the more often that a client was treated the more it was possible to “go into” the muscles. The Defendant denied that in treating Ms Alexander, whilst she was on her back he would move her neck to the left and then to the right with quick movements often accompanied by a cracking sound. He accepted that the description of the manoeuvre by Ms Alexander would be a manipulation which he was not entitled to undertake. It was the Defendant’s evidence that it was not possible to perform that manoeuvre in the manner described by Ms Alexander. He said that if he had placed his hands in the position she described and performed the manoeuvre then he probably would have ended up breaking her neck.
Evidence of Paul Strauss
The former partner of the Defendant, a Mr Strauss, gave evidence. He said that he had commenced working at the Defendant’s clinic in approximately October 1997 on a part-time basis. He said he entered into partnership with the Defendant in 1998, although he was uncertain of the time when the partnership commenced. Mr Strauss said he did not have any recollection of treating Ms Alexander, however, by using her treatment card he was able to say that he treated her on three occasions in April 1998, once in June 1998 and once in March 1999. He said that the massage treatment that he gave Ms Alexander included the lower back, neck and shoulders.
Mr Strauss said that he had never performed what has been described as a muscle compression massage on Ms Alexander. This was the massage described by the Defendant as starting at the middle of the shoulder blades and working down the back, compressing the muscles on either side of the spine with the hands. Although Mr Strauss said that he spent from October 1997 through to February 1998 observing the techniques of the Defendant, he was not aware of a technique of the nature described as a muscle compression massage.
Mr Strauss said that he had never observed the Defendant undertaking a technique described by Ms Alexander. The technique described by Ms Alexander involved the placing of his hands on the head of Ms Alexander and a quick movement of the head towards the left side and the right side, which would be accompanied by a “crack” sound. It was his evidence that whilst he had no recollection of treating Ms Alexander, the treatment described was not part of his technique.
Mr Strauss also said that he would not have manoeuvred Ms Alexander’s neck to the left and right to about 90 degrees as described, as it is not part of his technique. He said he understood that to be a chiropractic technique.
Expert Evidence From Other Witnesses.
A Report from Dr John Kelly dated 27 November 2002 and a Report from Dr Allan Terrett dated 24 May 2003 both of whom are Chiropractors, were tendered in evidence by consent. Dr Kelly also gave oral evidence.
There was little, if any, dispute between Dr Kelly and Dr Terrett regarding what is a joint manipulation. Dr Kelly said with respect to the spine, a joint manipulation is an application of force in a particular direction resulting in joint cavitation. He said joint cavitation takes place when one bone is moved away from the other, with an accompanying cracking sound which he said is the signature that a manipulation has taken place. Dr Terrett said in his written Report that a joint manipulation with a “crack” (cavitation) is well defined in the literature as being where the range of motion of a joint is taken into the paraphysiological zone, usually with a high velocity, low amplitude thrust.
It was Dr Kelly’s evidence that, assuming the description by the Plaintiff (having read the Transcript of her evidence at pages 120-123 inclusive), of the Defendant placing his hands on either side of her head and then suddenly and forcefully manoeuvring her neck and head first to the left side and then to the right, accompanied by a loud crunching noise was accurate, then such manoeuvres would qualify as a spinal manipulation.
Dr Terrett in his Report said that the description of the Defendant’s actions contained in the Defence did not suggest that there was a joint manipulation. He also mentioned that occasionally during soft tissue massage treatment, a joint may crack without any intention on the part of the practitioner to perform a joint manipulation or cause the “crack”.
Mr Watkins, a Remedial Massage Therapist, said in his written Report that it is outside the area of expertise for Massage Therapists to undertake a manipulation of the spine. He did not describe or define “manipulation”.
I have mentioned this evidence for the sake of completeness. However, the evidence did not assume the importance it may have held at the commencement of the Trial. The reason for this, as I understand the Defendant’s case, is that if I am satisfied on the balance of probabilities that the Defendant undertook the two manoeuvres of the Plaintiff’s head and neck, as she described then such manoeuvres were beyond the expertise and training of the Defendant. Such manoeuvres would be a joint manipulation.
Evaluation of Witnesses Relevant to Liability
I now turn to consider and evaluate the evidence given by witnesses relevant to the issue of liability.
(i) Evaluation of the Plaintiff’s Evidence
Throughout the period of the Plaintiff’s evidence, she presented in what was described during the course of the Trial as a twisted and guarded posture. Her head was tilted to the right, sometimes at about 45 degrees and sometimes at a lesser angle. She also held her right arm, bent at the elbow, across her chest, sometimes in the direction of her left shoulder and sometimes under her chin. I mentioned this posture as it was one of the planks upon which Counsel for the Defendant, Mr Livesey, relied in his assertion that the Plaintiff is malingering, in that she has grossly exaggerated the on-going effect of her injuries. It will be seen later that I have rejected the assertion by Counsel for the Defendant that the Plaintiff is malingering. For present purposes it is sufficient to record that in evaluating the Plaintiff’s credit regarding the issue of liability, I have taken into account my evaluation of credit issues arising with respect to her injuries. In other words, in evaluating her evidence and her credit, I have considered the entirety of her evidence.

The Plaintiff’s credit was constantly attacked by Counsel for the Defendant, throughout the Trial. No stone was left unturned, whatever the size, in the challenge to the Plaintiff’s credit.
I formed the view that the Plaintiff is an intelligent woman who had carved out a successful career prior to 13 January 1999. She generally responded to questions in an articulate fashion. She was at times argumentative and at times defensive in response to questions from Counsel for the Defendant. I thought that this was largely explained by the fact that at an early stage she recognised that her credit was under siege. She clearly resented this. There were memory lapses at times. However, generally I thought she displayed a satisfactory memory of events.
With respect to her evidence regarding the massage session which she had with the Plaintiff on 13 January 1999, some of the evidence she gave was to some extent supported by the Defendant’s evidence. It is not necessary to identify all that evidence in detail. Examples of such evidence will suffice. The Defendant acknowledged that it was possible that he asked the Plaintiff if he was going too hard and he said it was possible that he told her that he was used to working on footballers. He said that whilst he could not recall whether he told the Plaintiff that there were three levels of massage, with the deep tissue massage being the last level, however, he could confirm that there were three levels of massage with the highest level being the deep tissue massage. Furthermore, he said that he would have told the Plaintiff, at the conclusion of the session that she should apply ice packs on and off when she got home and that she would feel like she played a couple of games of football for a while.
Counsel for the Defendant was highly critical of the Plaintiff’s evidence regarding the so-called “manipulation” which she said was performed by the Defendant. In the written submissions supplied at the time of Counsel’s address (“the first submissions”), it was submitted that the Plaintiff gave three versions of this event. Whilst there is some inconsistency and some uncertainty in the Plaintiff’s evidence regarding what took place, her evidence regarding the manoeuvre remained consistent throughout. It was her evidence that the Defendant placed a hand on either side of her unsupported head and after some gentle movements from side to side suddenly forcibly manoeuvred her head towards the left shoulder and then a similar manoeuvre towards her right shoulder. She said that the manoeuvres were accompanied by a crunching or cracking sound.
During the Plaintiff’s cross-examination when she was responding to a question asserting that the Plaintiff did not use a violent movement, the Plaintiff said (P 1137.35):
“He jerked my head to the left and it crunched and then he brought it back to the centre and jerked it to the right and it crunched. I would call most jerks quite forceful.”
This answer was criticised by Counsel for the Defendant in the first submissions (para 7.8). It was suggested that the Plaintiff gave such a description after hearing Ms Alexander’s description of being massaged. I have taken the submission to mean after the Plaintiff heard the evidence of Ms Alexander in Court. The Plaintiff did not complete her evidence at one time. Witnesses were interposed from time to time.
In my opinion, this criticism is without foundation. Prior to Ms Alexander giving evidence, the Plaintiff had described the manoeuvre as a “forceful jerking” (T 439.20) in evidence which was given a considerable time prior to the evidence of Ms Alexander. Furthermore, she had given evidence of a “crunching” sound prior to Ms Alexander giving evidence.
From her evidence, it is evident that the Plaintiff is uncertain regarding the position of her body at the time she said the manoeuvres were undertaken. Initially, she said that she was on her side. However, later in her evidence she said that she was uncertain whether she was on her side or her back. Such uncertainty needs to be taken into account in evaluating the reliability of the Plaintiff’s evidence regarding the massage and the manoeuvres she says were undertaken.
Another matter which is relevant to the question of the Plaintiff’s credit arises from the letter of the Plaintiff’s Solicitors, Minter Ellison, to the Defendant’s insurer, AMP General Insurance, dated 2 April 2001. In that letter, the Solicitors alleged that the Defendant manipulated the Plaintiff’s head and neck in a forceful manner. It is further alleged in the letter that the Defendant continued to manipulate the Plaintiff six to eight times predominantly in the upper spine and neck region.
Dr McCulloch, a neurosurgeon, consulted with the Plaintiff for medico‑legal purposes on 8 and 9 April 2002. He was called by the Defendant to give evidence. Dr McCulloch said he was told by the Plaintiff that the Defendant had manipulated her head with his hands several times with a rotation motion, six times in total.
I mentioned earlier that it was the Plaintiff’s evidence that the Defendant initially moved her head with some gentle sideways movements, the number of which she could not recall, before moving her head from the central position quickly to the left, returning the head to the central position and then moving it quickly to the right. She said both movements were accompanied by an audible “crunch” sound. Her evidence was that on this manoeuvre occurring, the massage session ceased. When her Solicitors’ letter was directed to her attention, the Plaintiff said the description in the letter was wrong.
There is an inconsistency between the statement in the letter and the Plaintiff’s evidence. The evidence did not disclose that the Plaintiff had read the letter before it was sent. The evidence of Dr McCulloch was not put to the Plaintiff. His evidence does not include a detailed description by the Plaintiff of the “rotation motion”. Having said that I need to take these matters into account in evaluating the Plaintiff’s credit.
There are instances of inconsistencies in her evidence which I do not stay to detail which need to be taken into account in assessing the Plaintiff’s credit.
(ii) Evaluation of the Evidence of the Defendant
The Defendant had no recollection of the massage treatment that he gave to the Plaintiff. He relied upon what he described as his “practice” in massaging a first consultation patient who presented with problems such as those of the Plaintiff. At one point he said that the only memory of treating the Plaintiff was that it was a standard treatment (T 1289.9). However, as his evidence proceeded it became clear that he had no memory of the treatment he provided. It became apparent that he was relying upon his “practice” when he said he gave the Plaintiff the “standard treatment”, not his memory. He also relied upon his “practice” in dealing with other matters. For example, he said that he had an information sheet, which he used to have his clients record any previous treatment. Because of the absence of the information sheet he said he was able to say that the Plaintiff had not mentioned any previous treatment to her neck or back. He also used his “practice” to deny that the Plaintiff appeared in pain after the treatment because he said in such circumstances he would have recorded that on the client’s card. The Defendant said that he denied that the Plaintiff told to him that she had one leg three quarters of an inch shorter than the other. The Defendant said that it was his “practice” to check his patient and it would have been as a result of examining the Plaintiff that he would have discovered that she had one leg shorter than the other.
On the other hand, the Defendant said he could remember the Plaintiff attending and presenting at the counter of his rooms and that she was favouring her right arm and shoulder in that her right arm was close to her body and the forearm was resting on her lower rib cage. He also said he could recall she said that she had pain in her neck going down to her shoulder. Furthermore, he said that he had a recollection, after reading the client card to refresh his memory, that she was very tight on the right hand side of her neck.
There were some aspects of the Defendant’s evidence which caused me concern. I found his evidence that he could recall the Plaintiff presenting at his rooms with her right arm close to her body and the forearm resting on her lower rib cage like she was in pain, as completely implausible. In his evidence-in-chief he said he could recall the Plaintiff holding her arm in an unusual position, like she was in pain. In cross-examination he gave a more detailed description of the position of the Plaintiff’s arm although he said (incorrectly) that he had given that description earlier. In cross-examination he said he had a “vague memory”. On another occasion he said “I only think”. He then said that it was a possibility that the Plaintiff did not present as he described, but not a probability. I found his evidence on this topic during cross-examination (T 1454.19 to T 1456.28) was most unconvincing. I have formed the view that he has no recollection, vague or otherwise, of how the Plaintiff presented at the front counter of his rooms.
That evidence, and evidence about other matters the Defendant said he can recall, needs to be viewed against the background that the Defendant, at this time, was performing one hundred massages a week. His evidence is that he first received notice of a problem arising from the massage he gave to the Plaintiff in about September 1999, some eight months later.
I also found his evidence that he could recall that the Plaintiff said she had pain in her neck going down to her shoulder unconvincing. This evidence is to be contrasted with his evidence that he has no memory of what the Plaintiff said at the massage session (T 1423.17). I thought the Defendant was impermissibly reconstructing when he gave this evidence. I also thought he was reconstructing and not relying on his memory when he gave evidence that the Plaintiff was very tight on the right side of her neck.
Another part of the Defendant’s evidence which caused me concern was when he said in examination-in-chief that a woman telephoned him and cancelled the appointment for 16 January and told him that she would not be coming again because she was still sore. He said his appointment record showed that he had crossed out the appointment. He said in cross-examination that he had an independent recollection of the telephone call. The Defendant said he received the call on either Thursday or Friday. I found his evidence to be completely implausible. The evidence is from the same witness who cannot recall any of the conversations during the massage session on 13 January or the actual treatment he gave to the Plaintiff. It is my view the implausibility of the evidence is heightened when it is accepted that at the time the call was said to have been made by the Plaintiff she was suffering extreme pain resulting from her injury. The probability that the Plaintiff took time out to make such a call is so remote as to be not believable. In my opinion this evidence is a reconstruction by the Defendant after observing that the appointment had been crossed out in his appointment records.
Whilst the defendant could not recall what was said on the occasion of 13 January 1999 he denied that the Plaintiff told him that she had received treatment by Bill Noonan, the chiropractor. He said that he would have remembered if she had said that because he had known Bill Noonan for many years. I have concluded that the Plaintiff did tell the Defendant that she had been treated by Bill Noonan. It was her evidence, which I accept, that Bill Noonan advised her to seek treatment from a masseur. In my opinion with that background it would be natural for the Plaintiff to tell the Defendant that she was consulting him because Bill Noonan had advised her to have massage treatment. If she said that to the Defendant, then it is likely that she would have mentioned that she had received treatment from him.
In assessing the Defendant’s evidence I have concluded that the Defendant has no independent recollection of the Plaintiff’s attendance at his rooms on 13 January 1999. I reject any of his evidence where he states that there are some parts of the Plaintiff’s visit where he has an independent recollection.
(iii) Evaluation of Vanessa Alexander’s Evidence
I thought that Ms Alexander was a most impressive witness. I felt that she generally had a good recollection of the massage treatment she received by the Defendant and Mr Strauss. She would readily concede a point, if she felt that her recollection was not reliable. By way of example, whilst she said the sessions were similar in that the Defendant appeared to work to a routine, which she said included the manoeuvre of her head and neck to the left and right as I described earlier. She conceded that it may not have happened on the first occasion she received treatment from the Defendant in April 1996. A further example was her concession that she could not recall some specific movements it was suggested were applied to her by the Defendant during the massage. However, Ms Alexander did not accept that her memory was faulty, with regard to her description of the neck and head movements, when she was challenged by Counsel for the Defendant.
I accept the evidence of Ms Alexander regarding the head and neck movements which she described as I accept her other evidence. I thought she tried to give truthful answers and I felt that her evidence could be relied upon. I prefer her evidence to the evidence of any other witness where there is conflict.
(iv) Evaluation of the Evidence of Paul Strauss
Mr Strauss was a partner of the Defendant for some time. I thought he displayed a poor memory. To some extent this is likely to be explained because he was only asked to give evidence a short time before he did so. As a result, he only then focused his mind on matters which occurred a long time ago.
Mr Strauss had massaged Ms Alexander on three occasions. He could not remember Ms Alexander or the massage that he gave her. Ms Alexander also said that a couple of times he had been in the room when the Defendant massaged her. Ms Alexander said that part of the routine undertaken by the Defendant was the muscle compression exercise down either side of her spine. It was surprising that Mr Struass said he was not aware of the muscle compression technique. The evidence of the Defendant is that it is one of the techniques which he used. Mr Strauss had sat in on the Defendant’s massages for about three months. I can only put his evidence down to a poor memory.
He relied to a large extent on what he described as his “practice” in giving his evidence. I am not prepared to accept that evidence where it conflicts with the evidence of Ms Alexander, whom I thought had a good recollection.
(v) Conclusions Regarding Evidence on Liability
I prefer the evidence of the Plaintiff to that of the Defendant. I have been critical of the evidence of the Defendant regarding those parts of the Plaintiff’s visit which the Defendant said he could recall. I have concluded that the Defendant does not have a memory of the Plaintiff’s visit. That leaves only the evidence of the Defendant regarding his practice or routine. My findings regarding the unreliability of his evidence on other matters has an eroding effect on that evidence.
I have earlier mentioned that there were imperfections in the Plaintiff’s evidence. It will also be observed later that I found that there were imperfections in the Plaintiff’s evidence regarding her injuries. These imperfections are relevant to the assessment about whether her evidence regarding the manoeuvres can be relied upon. Her evidence regarding the conversations she held with the Defendant was, for the most part, plausible. I mentioned earlier that parts of the evidence of the Defendant to some extent support the Plaintiff’s evidence. For example, how would the Plaintiff have known that there were three levels of massage if the Defendant had not told her?
I also accept her evidence that she was weeping at the end of the massage session because of the severe pain she was suffering in her neck and arm. The evidence of Mr Freeth, when he saw the Plaintiff a short time later and described her appearance tends to support the Plaintiff’s evidence. It is plausible that if she was suffering the degree of pain she has described, then she would be likely to weep.
In evaluating the evidence of the Plaintiff and the Defendant, the evidence of Vanessa Alexander cannot be overlooked. As I mentioned earlier, I found her to be an impressive witness, whose evidence I can rely upon.
Ms Alexander’s evidence plays two roles on the issue of liability. First, it tends to support the probability that a manoeuvre similar in nature to that which she described was performed on the Plaintiff. Expressed another way, it lends support to the Plaintiff’s evidence that on 13 January 1999, the Defendant performed a manoeuvre in the manner she described.
The second role the evidence plays is that it tends to discredit the Defendant’s evidence regarding his “practice”. It also goes to discredit his evidence that he did not perform a manoeuvre on 13 January 1999 in the manner the Plaintiff described.
I am satisfied on the balance of probabilities that the Plaintiff suffered injury as a result of the manoeuvre which the Plaintiff described and which has been referred to in these proceedings as a manipulation. I am also satisfied that the Defendant did not have the experience and training to undertake such a manipulation.
Has there been a Breach of Contract and/or Breach of Duty?
I find that the Plaintiff entered into an oral agreement with the Defendant on 13 January 1999 for the Defendant to provide the Plaintiff with a remedial massage treatment for reward. This much was admitted by the Defendant in his Defence. I also find there was an implied term in such contract that he would only provide massage treatment within his qualifications, training and expertise as a remedial massage therapist. As a result of my finding regarding the manipulation performed by the Defendant on the Plaintiff, it follows that the Defendant has breached that implied term.
I also find that the Defendant owed the Plaintiff a duty of care to only perform the massage treatment in accordance with his qualifications, training and expertise as a remedial massage therapist and with his expertise as such a therapist. The Defendant has breached his duty of care in performing the manipulation. The manipulation was outside his qualifications and training. He did not have any expertise to perform the manipulation.
The Plaintiff’s Claim For Damages – Brief Overview
I mentioned earlier, that the Plaintiff underwent surgery performed by Dr Oatey on 28 January 1999. In that procedure Dr Oatey performed an anterior fusion at level C6/7 of the Plaintiff’s cervical spine and decompressed a nerve by the removal of the C6/7 disc protrusion. Following this surgery the Plaintiff resumed her employment with Telstra on 6 April 1999.
On 12 October 2000 further surgery was performed on the Plaintiff by Dr Oatey. On this occasion Dr Oatey performed a right C5/6 foraminotomy in which he decompressed the right C6 nerve. The Plaintiff returned to work after that surgery on 1 December 2000.
The Plaintiff was made redundant by Telstra on 22 June 2001. Since that time the Plaintiff has not worked save for a period in the latter half of 2002 when she attempted some part-time work.
It is the Plaintiff’s case that since the manipulation she has suffered pain and discomfort in her neck, right shoulder and right arm. The Plaintiff says the level of pain is so disabling that it has prevented her from taking up employment since her redundancy from Telstra on 22 June 2001. The Plaintiff’s case is that the chronic pain she suffers will prevent her from resuming employment in the future.

As a result of the Plaintiff’s chronic pain, in addition to a claim for non-economic loss, the Plaintiff claims damages for loss of earning capacity both past and future. The Plaintiff also claims damages for gratuitous assistance and past and future medical expenses.
The Defendant’s Case – Brief Overview
In the first instance the Defendant’s case is that the Plaintiff has failed to prove that the Defendant’s manipulation caused the Plaintiff to suffer injury.
Apart from that threshold causation question, it is the Defendant’s case that at best the Plaintiff is entitled to damages only for an injury to the C6/7 level of her cervical spine. The Defendant says that the Plaintiff is not entitled to any damages for loss of earning capacity. The Plaintiff was paid by her employer Telstra for the period from 13 January 1999 until her return to work on 6 April 1999 being the period relevant to the C6/7 injury. From that point onwards the Defendant submits that the Plaintiff had regained her lost earning capacity and was fit for full-time sedentary employment.
It is also the Defendant’s case that any injury the Plaintiff suffered to levels C4/5 and C5/6 of her cervical spine were not caused by the Defendant’s manipulation. Accordingly, the Defendant submits that he is not liable for any damages arising from that injury.
The Defendant further claims that in any event the Plaintiff is a malingerer. It is the Defendant’s case that by the time the Plaintiff returned to work on 6 April 1999, she had recovered from the C6/7 injury save for a few minor ongoing symptoms that she would experience from time to time. Furthermore, apart from the causation issue with respect to C4/5 and C5/6, it is the Defendant’s case that the Plaintiff had recovered from that condition by the time she returned to work on 1 December 2000 save, once again, for the odd minor pain and discomfort she would experience. The Defendant says that the Plaintiff has consciously and grossly exaggerated her symptoms. The essence of the Defendant’s case put by Mr Livesey, Counsel for the Defendant, is that the Plaintiff is feigning the extent of her ongoing symptoms for the express purpose of securing a higher damages award.
Finally, the Defendant returns to another causation issue. The Defendant submits if it is accepted that the injury to C4/5 and C5/6 were not caused by the Defendant’s wrongful act then in the absence of the Plaintiff disentangling the sequelae of the two injuries to show which symptoms relate to the C6/7 injury, then the Plaintiff has not discharged the onus of proving that her ongoing pain and suffering is caused by the injury to C6/7. In other words it is submitted that the causal effect for the Plaintiff’s problems is attributed by the law to the non-tortious injury at C4/5 and C5/6 and not the tortious injury at C6/7.
First Causation Issue
At the time of Mr Livesey’s oral address he handed up the large book of written submissions. I have previously referred to them as “the first submissions”. I need to confess that after hearing the oral submissions of Mr Livesey and digesting the contents of the first submissions it was not entirely clear to me if the Defendant was submitting that the manipulation did not cause any injury to the Plaintiff. It was only after I received a further extensive set of written submissions (“the second submissions”) supplied in response to supplementary written submissions by the Plaintiff that the Defendant’s case on the threshold causation issue became clear. Simply put, it is the Defendant’s submission that the pain and discomfort and the radicular symptoms described by the Plaintiff after 13 January 1999 did not arise from anything done by the Defendant during the massage.
The short answer to the Defendant’s submissions on this issue is that I accept the Plaintiff’s evidence that during and immediately following the manipulation by the Defendant she suffered extreme pain in the neck and pain radiating down the right arm. I accept that the pain and discomfort she was experiencing on attending on the Defendant for a massage was different from the pain she described during the manipulation and immediately after. The contrast between her evidence regarding the discomfort she was experiencing when she presented at the Defendant’s rooms on 13 January and the pain she suffered in her neck and radiating down her arm during the manipulation and following is stark.
The Defendant’s submission also flies in the face of an overwhelming body of medical and lay evidence, which I accept, and which supports the Plaintiff’s case that the Plaintiff suffered an injury at C6/7 level of the cervical spine as a result of the Defendant’s manipulation.
(i) Medical Evidence
I first turn to consider the medical evidence.
Dr Cindy Molloy, a neurosurgeon whom the Plaintiff consulted for medico-legal purposes, stated that in her opinion the Plaintiff suffered a C6/7 discogenic injury causing a right C7 radiculopathy (nerve compression). It was her evidence that a disc protrusion had occurred in that the outside of the disc had torn and the contents of the disc protruded out and touched the nerve. Dr Molloy said it was the injury to the disc and the nerve compression which caused the Plaintiff’s neck pain, right arm pain and motor weakness in her right arm.
Dr Molloy said that investigative neurological evidence indicated that there was degeneration at this level prior to the Plaintiff’s visit to the Defendant. She said she would have expected a person of the Plaintiff’s age to exhibit degenerative changes. She said that the history of shoulder pain which the Plaintiff gave her was evidence that the Plaintiff was suffering from a discogenic problem. However, Dr Molloy said that generally it is only when the disc is torn and starts to protrude that the pain becomes more severe. It was her opinion that the manipulation caused an exacerbation of that problem. I accept Dr Molloy’s evidence. It was Dr Molloy’s opinion that the manipulation had caused the disc to rupture, which led to the compression of the nerve.
During cross-examination by Mr Livesey, Dr Molloy said that where a person was suffering from a disc injury, it was possible that a simple turning of the neck could cause a significant exacerbation of symptoms. The Defendant relied upon that evidence in the first submissions to suggest that the Plaintiff’s problems after 13 January could have been caused by such an action. The Counsel for the Plaintiff, Mr Frayne, complained that such a proposition was not put squarely to Dr Molloy. I agree. Dr Molloy had expressed the view that the manipulation had caused the contents of the disc to protrude and caused nerve root compression, which in turn caused problems with her right arm. In my opinion, if the Defendant was intending to suggest that the Plaintiff’s problems were not caused by the manipulation then such a proposition should have been put to Dr Molloy.
Counsel for the Defendant, in the first submissions also relied upon the evidence of Dr Osti in support of the causation contention. Dr Osti had seen the Plaintiff on 19 January 1999. He is an orthopaedic surgeon. Dr Osti said that a person may receive symptoms from a disc prolapse as a result of sneezing or doing up his or her shoelaces. Dr Osti also said, with respect to the Plaintiff, that in developing the symptoms she described, a credible hypothesis was that they occurred as a result of the manipulation by the Defendant.
Dr Osti also said that with the background of pre-existing degeneration and with some possible initial displacement which would explain the complaint of the shoulder pain it was a plausible explanation that it was the manipulation which could have been the straw that broke the camel’s back.
In my opinion the evidence of Dr Osti does not support the submission made by Counsel for the Defendant, indeed, it provides support for the Plaintiff’s contention that the manipulation caused the injury to C6/7 and the accompanying nerve compression.
Before I come to the lay evidence, I need to say something about the evidence of Dr McCulloch, a neurosurgeon. I mentioned earlier in these Reasons that, at the request of the Solicitors for the Defendant, he consulted with the Plaintiff for medico‑legal purposes. In his Report of 18 November 2003 (Para 10), Dr McCulloch said that, “ - if the C6-7 right arm symptoms became symptomatic in the manner described by the Plaintiff it is possible but very unlikely that manipulation aggravated the C6/7 condition”. Dr McCulloch did not explain this passage. If he is expressing the opinion that the Defendant’s manipulation did not cause the rupture of the C6/7 disc and the accompanying nerve compression, then I reject it. I can only assume he was not in command of all of the facts because, in my view, such an opinion flies in the face of reality and an overwhelming body of evidence, once it is accepted that the Defendant manipulated the Plaintiff’s cervical spine in the manner described by the Plaintiff. The opinion of Dr Molloy is to be preferred.
(ii) Lay Evidence
I now turn to consider the lay evidence which supports the Plaintiff’s case that the manipulation caused the severe injury at level C6/7 of the Plaintiff’s cervical spine.
At 13 January 1999 the Plaintiff was in a relationship with John Freeth. He gave evidence that he attended at the Plaintiff’s home, at some time shortly after the Plaintiff had seen the Defendant. Mr Freeth said that she appeared to be in extreme agony and was weeping constantly. He said that she appeared unable to position herself to alleviate the pain. He said she was complaining of pain to her neck area. I thought Mr Freeth was generally a truthful and reliable witness.
Dr Robinson was a friend of the Plaintiff and was also a practising Chiropractor. As a result of his Chiropractic Practice receiving a telephone call from the Plaintiff in which she said that she was suffering a considerable degree of neck pain he arranged for x-rays to be taken by radiologists of her neck and spine. He said he thought he arranged the x-rays on either 13 or 14 January 1999. The X-Ray was dated 14 January 1999. Dr Robinson saw the Plaintiff and after viewing the x-rays, said he formed the view that she may have been suffering from musculo-ligamentous spasm in her neck which was causing acute pain. He said the Plaintiff’s symptoms were so severe that he recommended that she consult with Dr Norman Broadhurst, a musculo-skeletal physician. Dr Robinson said that he again saw the Plaintiff the next day and she presented in excruciating pain. He said he then thought that there was some structure impinging on one of the nerve roots emerging from her neck and going to the shoulder and arm. Dr Robinson recommended that the Plaintiff come to his residence and float in his spa with the support of cushions. He said that he and others took turns to float her in his spa in the hope that that would alleviate her pain. He said that where the body is submerged up to the neck it relieves ninety percent of the body weight and this can be helpful to relieve pain. The evidence of the Plaintiff is that this took place. I thought Dr Robinson was a truthful and generally reliable witness. I accept his evidence.
In my opinion, the evidence of Mr Freeth and Dr Robinson lend support to the Plaintiff’s evidence that she left the Defendant’s rooms suffering sever pain. The temporal association of the Plaintiff’s visit to the Defendant with the observations of Mr Freeth and to a lesser extent, Dr Robinson, that she appeared to be suffering severe pain also supports her evidence that the manipulation produced the onset of pain. This evidence also has to be seen against the background of the medical evidence that such a manipulation could cause injury to level C6/7 and the onset of severe symptoms.
Before I leave this topic there is one further submission made by Counsel for the Defendant which I need to address. In further support of the Defendant’s contention that the manipulation did not cause injury to level C6/7 of the Plaintiff’s cervical spine, Counsel for the Defendant submitted that in the period immediately following 13 January the Plaintiff did not complain to any medical practitioner of neck symptoms which she said were caused by the Defendant.
In my view, the submission is not supported by the evidence. A fair reading of Dr Osti’s Report of 2 September is that the Plaintiff presented with neck pain, shoulder pain and arm pain which she attributed to the Defendant’s manipulation. Furthermore, in evidence Dr Osti stated that the Plaintiff complained of neck pain when she consulted with him on 19 January 1999. Indeed, he disagreed with the assertion made by Counsel for the Defendant in cross-examination that the Plaintiff did not complain of neck pain.
I mentioned earlier that the Plaintiff consulted with Dr Broadhurst, a musculoskeletal physician, on 21 January 1999. In his Report of 22 October 2003 Dr Broadhurst stated that on that occasion the Plaintiff complained of severe right sided neck pain going down into the shoulder and right arm. He reported that the Plaintiff attributed the severe pain that she was then suffering to the manipulation by a massage therapist.
Counsel for the Defendant also submitted that none of the contemporaneous medical records and notes record any complaint relating to neck pain. (Paragraph 8.1 of the first submissions). Again this submission is not accurate. The Plaintiff presented at the emergency department of the Ashford Hospital on 15 January 1999 seeking relief from the pain. Those notes record that the Plaintiff complained of pain in her right shoulder and neck. Furthermore, Dr Newberry of Ashford Hospital recorded that neck movement reproduces pain.
For reasons I have expressed I reject the submissions by Counsel for the Defendant on the first causation issue. I find that the negligent manipulation by the Defendant caused an injury to the disc at level C6/7 of the Plaintiff’s cervical spine with accompanying nerve compression.
Evidence Regarding The Injury Following Surgery in 1999
I mentioned earlier that the Plaintiff underwent surgery at the hands of Dr Oatey on 28 January 1999. She remained in hospital for ten days. During her time in hospital she contracted pneumonia and this was treated. She said that immediately following the surgery and during recovery she noticed that at times her pain had diminished by up to fifty percent. She said that it then began to slowly increase again. During the period when her pain levels commenced to elevate again she consulted Dr Broadhurst. The Plaintiff said that he inserted needles, “like injections” in the shoulder blade area. She said she understood this was like a slow acting local anaesthetic. The Plaintiff said that when the anaesthetic wore off the pain returned. Dr Broadhurst reported that his last review of the Plaintiff was on 4 June 1999. He said attempts to improve her pain had failed.
The Plaintiff returned to work at Telstra on 6 April 1999. She said she was still suffering pain and discomfort at that time. Telstra placed her on a return to work program. This involved her working initially lesser hours. She said that her work station was assessed and various aids were provided to assist her. The Plaintiff was able to work at her desk on a computer with modifications made to enable her to gain better access to the keyboard. The Plaintiff said that she was also able to work from home and that additional equipment was provided for her at home.
The Plaintiff said during this time she was taking a substantial amount of prescription medication to control her pain. Indeed, she continues to consume a large amount of medication, which she says is necessary to control her pain. She said that at the time of her return to work she had difficulties with concentration due to the amount of drugs she was taking. She said she could not drive a motor vehicle initially.
It was the Plaintiff’s evidence that when she returned to work she commenced on about three hours a day and gradually increased her hours. She said she continued to suffer pain and was at times struggling to cope with her work. On occasions she would not work because of the pain and discomfort she was experiencing. The Plaintiff said that she worked at times up to ten to twelve hours a day during the period after she returned to work when there were deadlines to meet.
The Plaintiff said that whilst she was absent from work she was paid her salary by Telstra. She said that when she returned to work she was paid sick leave when she was unable to attend work, due to her pain and discomfort. She said that there were also occasions when she took annual leave instead of sick leave.
The Plaintiff said that she had been suffering constant pain in her neck and shoulder during 1999 and that she took five weeks absence from work at the end of the year, which included annual leave and long service leave so that she could rest.
The Plaintiff said that shortly after she suffered the injury she had trouble with dizziness and loss of balance. She said that this has continued to cause her problems. The Plaintiff’s evidence is that in October 1999 whilst she was climbing the stairs at the home of her partner John Freeth, she lost her balance and fell down the stairs.
As a result of the fall she consulted with her general practitioner, Dr Jim Farrent. He referred her to Dr Oatey. She had tenderness to her left shoulder. Dr Oatey ordered a CT Scan which showed that the spinal fusion side at C6/7 had not been disturbed.
She said that the neck pain and the pain in her right shoulder radiating down her right arm continued in the year 2000. She consulted with Dr Graham Wright, an occupational physician in August 2000 following a referral from Dr Farrent. He undertook further investigations of her cervical spine. These investigations revealed disc bars at levels C4/5 and C5/6. He referred the Plaintiff to Dr Oatey for review.
At this time the Plaintiff said she was suffering severe pain and discomfort. At the request of Dr Oatey she underwent a cervical CT Myelogram. She said this procedure involved her arms and legs being tied and her head clamped so that she could not move. She said that a needle was inserted into her spine which injected dye. She described this procedure as being the worst thing she had done to her. Following the results of the Myelogram Dr Oatey administered a right C5/6 foraminal injection. Good pain relief followed but only for about two days.
As a result of Dr Oatey’s recommendation the Plaintiff underwent further surgery on 12 October 2000. A C5/6 foraminotomy was performed in which the right C6 nerve was decompressed. This surgery left the Plaintiff with a large scar travelling vertically down the back of her neck.
The Plaintiff returned to work on 1 December 2000. She said that her advice was that she should not return to work for two to three months but she returned earlier because there were several contracts which she needed to address prior to the Christmas break. She said that during the period that she was absent from work she was paid sick leave.
The Plaintiff said that on her return to work she went through a return to work program with Telstra. During the return to work program, the Plaintiff said that she worked both at home and at Telstra’s offices. She said that she was still suffering constant pain and discomfort at work. She said she had difficulty working in the period up to Christmas and when she returned to work after the Christmas break.
The Plaintiff said she was made redundant by Telstra in June 2001. The Plaintiff said that during this period of return to work she worked at times up to ten to twelve hours when it was required. During this period she was also away from work from time to time as she said she had difficulty coping.
Termination of Employment with Telstra
At the time the Plaintiff was injured on 13 January 1999, she was an account executive in the area of government and business contracts. This was a very responsible position. The employment package she received reflected the responsible position she held.

As I mentioned Counsel for the Defendant submitted that the cost of Neurontin should not be allowed as it was not a reasonable expense as between the Plaintiff and the Defendant. Mr Livesey relied upon observations made by Sharman v Evans (1976-77) 138 CLR 563 and Beasley v Marshall (No. 1) (1988) 40 SASR 544. Both of these cases dealt with the future care of a seriously injured Plaintiff. However, Mr Livesey submitted the principle stated in those decisions applied equally to the claims made here for future medication.
In Sharman v Evans (supra) Gibbs and Stephen JJ said (at page 573):-
“The appropriate criterion must be that such expenses as the Plaintiff may reasonably incur should be recoverable from the defendant; as Barwick C.J. put it in Arthur Robinson (Grafton) Pty. Ltd. V Carter ‘The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent”, and see Chulough v Holley, per Windeyer J. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest.”
In Beasley v Marshall (supra) King CJ adopted the observations in Sharman v Evans and said (at 576):
“Reasonableness in allowing future care must be determined in the light of the standards of health, care prevailing in the community”.
As I mentioned, until Dr Farrent prescribed Neurontin in March 2003 the Plaintiff had been taking the analgesics Panadeine Forte and Tramal 200 SR. The cost of Panadeine Forte for a thirty day prescription, at the Member’s price is $16.77 and that of Tramal for a thirty day prescription is $23.70. There is no expert evidence indicating the benefit Neurontin provides over the far less expensive analgesics. All that Dr Farrent said was that it was his understanding that Neurontin would be the more effective over cheaper alternatives. He did not identify the cheaper alternatives or the basis upon which he based his understanding. If by reference to cheaper alternatives he was referring to Panadeine Forte and Tramal he did not give any explanation for not prescribing Neurontin earlier, if it was available. I was not told the reason for Neurontin not being available under the Pharmaceutical Benefit Scheme or whether it could be listed on the Scheme in the future. I am of the view that all of these factors are relevant to the assessment of whether the cost of Neurontin is reasonable for the Defendant to bear. The huge disparity in costs are contrasted by the Plaintiff’s claim for the whole of life cost of Neurontin of $100,000 with the whole of life claim for the cost of Panadeine Forte of $4,590 and of Tramal SR 200 of $5,182.
I have already mentioned the evidence of the Plaintiff regarding Neurontin. She did not state directly that her pain levels have diminished since taking Neurontin and degree of such reduction. Her evidence was simply that since taking Neurontin she has reduced the amount of Panadeine Forte she consumes. However, her evidence is that she still takes all three analgesics.
The Plaintiff’s evidence was that she has continued to suffer chronic pain in the period after she commenced taking Neurontin. Prior to taking Neurontin she suffered chronic pain. During the time before she commenced Neurontin the Plaintiff continued to function although she continued to have problems and some days were more difficult than others. As mentioned earlier the Plaintiff continued with her employment with Telstra and she enjoyed a modest level of social function. There is no evidence to indicate that since taking Neurontin her functioning has improved.
In my opinion the cost of the treatment of the Plaintiff arising from the consumption of Neurontin is unreasonable. The evidence of Dr Farrent is that there has been a small improvement in the Plaintiff's pain and this has provided some assistance in the management of her depression although she states that she continues to suffer from depression. When the high cost of the drug is considered alongside the small benefit achieved, then it must be concluded that the costs are unreasonable and should not be borne by the Defendant.
I disallow the Plaintiff’s claim for the cost of Neurontin.
Although I have disallowed the Plaintiff’s future claim for Neurontin I still need to evaluate the Plaintiff’s claim in case I am in error. I proceed on the assumption that the cost of Neurontin is reasonable as between Plaintiff and Defendant.
The Plaintiff’s claim is calculated on the basis that the Plaintiff will require a script for one hundred tablets to be filled each twenty days at a cost of $244 for each script. I find the evidence to support this claim unsatisfactory. There is conflict between the Plaintiff’s evidence and the evidence of Dr Farrent. The Plaintiff said that she takes a tablet every six hours. This is four times a day. In his Report of 4 November 2003 Dr Farrent said that the Plaintiff takes Neurontin tablets three times a day. The Plaintiff stated that one hundred tablets last her twenty days. If the Plaintiff is taking four tablets a day then it would be expected that she would take twenty five days to consume the one hundred tablets. If the Plaintiff took three tablets a day, as indicated in Dr Farrent’s Report, then it would take thirty three days to consume one hundred tablets.
At the end of the Trial the Plaintiff tendered a letter and schedule from National Pharmacies at Glenelg. The schedule sets out the purchase of various kinds of medication from that pharmacy together with the cost of the medication, the cost to members and the amount paid by the Plaintiff. The letter and schedule initially accompanied a schedule relating to Future Medical Expenses claimed by the Plaintiff. However, at the further hearing on 17 September 2004 it was received into evidence.
Sometime prior to the letter and schedule being received into evidence the solicitors for the Defendant had been supplied by the solicitors for the Plaintiff with a copy of the Future Medical Expenses Schedules. Arising from the receipt of the schedules and the letter and the National Pharmacies Schedule Counsel for the Defendant furnished detailed written submissions regarding the Plaintiff’s claim for future costs of medication. Counsel had used the information contained in the National Pharmacies Schedule to demonstrate that during a period of approximately twelve months the total cost of Neurontin purchased at member’s rates was about $1,578. The Defendant submitted that this was approximately thirty five percent of the annual amount claimed by the Plaintiff. The Defendant submitted that the commencing figure for assessing the Plaintiff’s future claim for the supply of Neurontin was about $35,000 and not $100,000.
Mr Frayne, Counsel for the Plaintiff, submitted that the Glenelg National Pharmacy letter indicated that the information in the Schedule only related to the purchase of medication from that pharmacy. He submitted the Defendant’s submission was flawed because it wrongly assumed that the purchases set out in the National Pharmacy Schedule were the total purchases for the period identified in the Schedule. He said that they were not the total purchases but conceded that there is no evidence to indicate that purchases of medications were made at other pharmacies.
Mr Frayne is correct. The National Pharmacy letter and Schedule were admitted solely to prove medication purchased at the Glenelg Pharmacy and the cost of such medication. Whilst there is no evidence of other purchases nevertheless it cannot be inferred that the Schedule contains the only purchases of medication by the Plaintiff for the period to which the Schedule relates. It follows that the Defendant’s submission regarding the commencing point for the assessment of future Neurontin of $35,000 cannot be accepted.
Although I have not accepted the Defendant’s percentage submission, there is other material which casts doubt on the Plaintiff’s claim that a script is required every twenty days, apart from the doubt created by her own evidence and that of Dr Farrent to which I referred earlier.
The Plaintiff’s Special Damages Schedule (P38) records what would appear to be three purchases of Neurontin on 22 September 2003, 17 October 2003 and 8 November 2003. It is possible that two purchases recorded on 3 April 2003 may also relate to Neurontin although the total amount of each item on that day does not add up to $304. The evidence is that the Plaintiff received her first script for Neurontin on 23 March 2003. If the Plaintiff was consuming Neurontin at the rate of 100 tablets every twenty days, then it would be expected that her claim for Special Damages would have included a claim for about 10 scripts during the period from 23 March 2003 to 8 November 2003. That is clearly not the case.
This evidence and other evidence to which I referred leads me to the conclusion that I cannot accept the basis of the Plaintiff’s claim, namely, of the cost of one hundred tablets each twenty days.
I have found that the Plaintiff’s pain will begin to diminish following the Trial and with the diminution of the pain, the Plaintiff's depression will improve. That being the case it can be expected that the Plaintiff’s need for Neurontin will not continue for an overly long period.
It is impossible to apply any precision in making an assessment of this part of the Plaintiff’s claim. I consider the degree of probability that she will only need the Neurontin for a relatively short period of time is quite high. I am also prepared to assess on the basis that the Plaintiff will require about ten to twelve scripts a year. Taking into account the contingencies I have referred to, I allow $9,500 for the future supply of Neurontin.
(b) Other Medications
In the case of each medication the Plaintiff based her calculations on the member’s cost of the drug. This is a much larger amount than the Plaintiff was actually required to pay. Each of the other drugs were listed on the Pharmaceutical Benefit Scheme and therefore the Plaintiff at the time of purchase received a substantial rebate from the members’ cost of the drug. For example, the member’s cost of Tramal tablets in late 2004 was $18.96 but the actual amount paid by the Plaintiff after the rebate applied was $3.80. The Plaintiff calculated her loss on the price of $18.96.
Counsel for the Defendant submitted that the commencement point for the assessment of the Plaintiff’s loss for future medication should be the amount paid by the Plaintiff not the member’s price. It is the amount paid which has been claimed in the Special Damages.
Mr Livesey relied upon the decision of the Western Australian Full Court in State Government Insurance Commission v Hitchcock (Unreported, 11 March 1997 BC 9700650) in support of this contention. In that case the Trial Judge concluded that as the benefit under the Scheme was available to all citizens regardless of the reasons that the medication is needed then the benefit should be treated in the same way as the receipt of an invalid pension as considered in Redding v Lee (1982) 151 CLR 117 in assessing damages. Accordingly, it was held that the pharmaceutical benefit which reduced the cost of medication should not be taken into account in assessing damages for the purchase of medication in the future.
The Full Court disagreed. The relevant passage of the Full Court decision is found at page 13:
“In any event, in my view, the issue is to be resolved simply in accordance with the general principle that damages for personal injury are to be compensatory and a plaintiff cannot recover more than he or she has lost: Haines v Bendall(1991) 172 CLR 60; Manser v Spry. No money whatever is received by a person when exercising his or her rights to pharmaceutical benefits under the National Health Act. Pharmaceutical benefits are therefore fundamentally different in principle from, for example, invalid pensions, which result in moneys being received by the pensioner; in the latter event the question that arises is whether the damages, to which an injured plaintiff (the recipient of such a pension) is entitled, fail to be reduced by the pension received (see Redding v Lee (1983) 151 CLR 117. In contrast to the receipt of a pension, however, the effect of the National Health Act is that an approved pharmacist or medical practitioner cannot charge a person entitled to pharmaceutical benefits more than the sum stipulated by s87 of the Act for relevant medication required by him. There is no prospect of such a person incurring any cost over and above the charge which by s87 he or she is required to pay an approved pharmacist or medical practitioner. Accordingly, it cannot be said that that person has sustained any loss in respect of the difference between that charge and the Commonwealth price of the benefit concerned.
The learned Judge approached this question by considering whether, in terms of the legislation in question, the pharmaceutical benefits possesse[d] the ‘distinguishing damages… (Manser v Spry at 436). His honour concluded that because the benefit of the scheme is universal and available to all citizens regardless of the reasons why they are in need of medication, they were analogous to invalid pensions (as considered in Redding v Lee) and therefore they possessed the distinguishing characteristic which enabled them to be retained by the respondent as part of his damages. In my view, however, for the reasons I have expressed, I consider that pharmaceutical benefits are to be distinguished from invalid pensions. The enjoyment of pharmaceutical benefits did not result in the respondent retaining anything in respect thereof. The benefits in question rather resulted in the respondent incurring no obligation to pay the supplier for the medication as the respondent sustained no loss in respect of the pharmaceutical benefit received her can make no claim in respect thereof.”
The reasoning of the Full Court of Western Australia is persuasive. I consider I should apply the reasons to the Plaintiff's claim. In so doing this significantly reduces the cost starting point for the assessment. Set out hereunder is the cost of each medication claimed by the Plaintiff and the cost which is now relevant following the application of Hitchcock:
Plaintiff's Claim          Actual Cost
Panadeine Forte  $16.77  $3.70
        Tramal 200m SR  $18.96  $3.80
        Maxolon  $18.96  $6.78
        Valium  $8.59  $3.80
        Tryptanol  $9.31  $4.82
If the same prescription period for each drug as used by the Plaintiff in the presentation of her claim is used and the same method of calculation of the Plaintiff is adopted to reach a whole of life figure, including the actuarial multiplier of 1168 then the Plaintiff's claim for each of these medications is:
Panadeine Forte  $1,016
        Tramal 200 SR  $1,040
        Maxolon  $1,857
        Valium  $1,040
        Tryptanol  $1,319
  $6,272
The calculations for Maxolon and Tryptanol are based upon a daily consumption. However, the evidence of Dr Farrent is that these two medications are to be taken as required.
In assessing each of these claims it is necessary to take into account that the Plaintiff will take less analgesics as her pain lessens. The expert evidence suggests that with the lessening of the pain will see an improvement in her depression. It would be expected that with the lessening of her pain the Plaintiff would not need to take Valium on such a regular basis. The assessment cannot be determined with any degree of precision. I allow the following for future claims for medication:
Panadeine Forte  $700
        Tramal 200 SR  $700
        Maxollon  $1,000
        Tryptanol  $500
        Valium  $500
  $3,400.
Accordingly I allow a total sum of $3,400 for future cost of medication.
(ii) Claim for National Pharmacy Membership Fees
The Plaintiff pays the sum of $68.40 per annum as an annual family membership fee for National Pharmacies. The Plaintiff’s claim for future medication is based upon the costs to members which is less than the retail cost. In those circumstances, the Plaintiff claims the life time cost of remaining a member capitalised to a present value. That claim is $1,536. It is the Plaintiff’s case that as the Defendant receives the benefit of a reduced price for the medication then it is reasonable that the Plaintiff be compensated for maintaining her membership.
The Plaintiff held family membership with National Pharmacies at the date of her injury and has continued to pay for and retain her membership to the time of Trial. It was Mr Livesey’s submission that the object of awarding damages for a person who has suffered injury as a result of tort is to compensate the person as far as money is able by placing her in the same position as if the tort had not been committed. This is a family membership. It was never suggested that the Plaintiff would not have continued to be a member in the future. In my view, it is not reasonable to award damages for the Plaintiff’s cost of continuing to remain a member of National Pharmacies.
(iii) Future Psychologist Consultations
The Plaintiff claims damages for the cost of psychological counselling in the future. Ms Lawton said that the Plaintiff may need psychological counselling at specific times in the future. She gave as an example an occasion when she planned to re-enter the workforce and an occasion when a personal relationship with a partner had broken down.
Dr Kalnins, the Psychiatrist, said, in the context of his opinion that the Plaintiff could anticipate a significant improvement after the litigation had finalized and that psychotherapeutic methods would be of assistance to the Plaintiff.
The current cost of a Counselling session is $132. In my view it would be reasonable to allow the Plaintiff fifteen to twenty counselling sessions in the period following the litigation. As I have found that there will be a significant improvement in her pain experience in the future the evidence of Ms Lawton regarding future counselling does not take on the same significance although some allowance should be made.
I allow the sum of $2,800 for future psychological counselling fees.
(iv) Future Cost of General Practitioner Consultations
The Plaintiff claims the sum of $8,643 for future consultations with her general practitioner. The claim is based upon the average number of visits the Plaintiff has annually made to Dr Farrent and the average cost of $32 for each consultation. After calculating the average weekly cost of $7.40 the Plaintiff applied the Actuary’s whole of life multiplier of 1168 to reach the figure of $8,643.
The evidence is that the Plaintiff’s visits to Dr Farrent has been for the purpose of prescribing medication and for him to monitor her pain levels. Other than this Dr Farrent has not been undertaking any specific treatment. He said that it was his view that the prescription of medication of the nature earlier described will be required in the future. However, Dr Farrent said he did not know how long the Plaintiff would need the medications. He said it could be definite or indefinite.
I have found that the Plaintiff’s pain will reduce and accordingly her reliance on medication will also lessen. As a result the Plaintiff’s requirement to visit her general practitioner will also diminish.

Before I turn to assess the Plaintiff’s claim I need to deal with a threshold issue. Whilst the claim of the Plaintiff for the cost of these visits is not large it became a substantial battleground on the issue of whether the Plaintiff’s claim is to be evaluated on the basis of a consultation fee of $32.06 or upon a fee of $7 for each consultation. It was submitted by Mr Livesey, Counsel for the Defendant, that in the future the Plaintiff will be entitled to claim a benefit of $25.06 from Medicare which the Plaintiff will not be required to repay to Medicare, thus making the Plaintiff’s loss for each visit $7 and not $32.06. In other words it is submitted that by assessing the Plaintiff’s damages on the basis of $32.06 a visit the Plaintiff is, in effect, being doubly compensated as she will receive $25.05 from Medicare of the total consultation fees of $32.06 every time she visits her general practitioner.
Mr Livesey submitted that Section 8 of the Health and Other Services (Compensation) Act 1995 (Cwth) (“Health Compensation Act”) requires a person who successfully obtains damages arising from an injury and who has obtained the benefit of the Medicare rebate for treatment and the amount of the rebate is included in the damages recovered, to repay to the Commonwealth that rebate. Mr Livesey accepted that as the Plaintiff was obliged to repay the rebate for past services then she was entitled to claim in her special damages, the costs of the fee for the professional services, ignoring the Medicare rebate. However, he submitted that Section 8 of the Health Compensation act does not require a person to repay a rebate received for future professional services even if the cost of such a service had been included as part of damages for future medical expenses. He submitted that as there is no obligation to repay, the Plaintiff would be doubling up in her claim for future consultation costs for Dr Farrent as she will be compensated for such costs in the damages award and on each occasion she consults with her general practitioner in the future she will be entitled to receive the Medicare rebate.
Section 8 of the Heath Compensation Act does not address the question of repayment of a rebate paid with respect to a professional service rendered in the future. Mr Livesey is correct, the Section only requires a person who has recovered damages for an injury to repay past rebates received for a professional service fee incurred with respect to the injury. Mr Livesey is also correct in his submission that as a general proposition all citizens are entitled to Medicare rebates. Mr Livesy submits that when the Plaintiff consults with her general practitioner she will be entitled to receive a Medicare payment for the general practitioner’s fee.
In considering this submission, it is necessary to refer to Section 18 of the Health Insurance Act 1973 (Cwth). Section 18(1) of the Health Insurance Act provides that where a person makes a claim for a medical benefit in respect of a professional service rendered as a result of an injury and that person has received damages in respect of that injury and the Minister is of the opinion that the medical expense was incurred as a result of that injury, then the Minister may determine that part of the damages was in respect of that medical expense. Section 18(2) provides that if the Minister makes that determination then the medical benefit is not payable in respect of that professional service. Section 18(8) of the Health Insurance Act provides that the Minister may delegate any of his powers to the General Manager or a member of staff of the Health Commission.
With respect to past claims for the Medicare rebate arising from the cost of a professional service arising from a compensable injury the Health Commission receives notice of the claim made for the injury. It does so because it is entitled to recover medical benefits with respect to a professional service fee which has been recovered by the injured person as part of the damages paid. Having been placed on notice with respect to an injured persons’ damages claim then there must be an expectation that the delegate of the Minister of the Health Commission would exercise the discretion provided by Section 18 of the Health Insurance Act to refuse to pay a medical benefit with respect to professional fees incurred as a result of the injury. The policy of the Parliament arising from the Health Insurance Act and the Health Compensation Act is that a person who has received damages for an injury and who incurs a fee to a professional with respect to that injury should meet that expense from the damages. This policy is consistent with the principle that a negligent party should bear the cost of compensating the injured party. This policy heightens the expectation that the discretion would be exercised to prevent the Plaintiff from claiming the Medicare rebate.
In considering this issue it needs to be recognised that there is a distinction between receiving a benefit under the Pharmaceutical Benefit Scheme and receiving a Medicare rebate or benefit. This was highlighted in the decision Hitchcock. Under the Pharmaceutical Benefit Scheme, the benefit is received automatically at the point of sale. In other words, at the point where the customer is required to make payment for the medication the customer has already had the Pharmaceutical benefit through the reduction in the cost to the customer. On the other hand, the patient is contractually liable to the medical practitioner for the entire professional fee and is required to make an application to the Commonwealth to obtain the Medicare benefit to assist in paying the medical practitioner’s fee. It is upon the application by the patient for the Medicare benefit that the delegate to the Minister is entitled to exercise the discretion.
In my opinion, the starting point is that I have found that the Plaintiff is entitled to damages for future costs of consulting with a general practitioner. The Plaintiff has proved that the present cost of a consultation is $32.06. In my opinion it is not for the Plaintiff to prove that the discretion will not be exercised thus enabling the Plaintiff to recover the Medicare Rebate. In my view I am entitled to accept that the discretion will be exercised to prevent the Plaintiff from obtaining the Medicare Rebate. If the Defendant wished to establish that the discretion will not be exercised, then it needed to produce evidence to establish that fact. The Defendant has not done that. Accordingly, I reject the submission that in assessing these damages the sum of $7.00 is the appropriate commencing amount and not $32.06.
In considering the Plaintiff’s claim for general practitioner’s fees for consultations regarding her medication for her pain I need to take into account my findings that the Plaintiff’s pain will diminish over a period of time following the conclusion of the litigation. I consider the degree of probability that the pain will lessen and the Plaintiff not to require the services of Dr Farrent to the degree she does at present to be high. I also need to take into account that the Plaintiff may die earlier than the life expectancy factored into the actuary’s calculation.
I allow the Plaintiff the sum of $4,000 for the cost of future consultations with a general practitioner.
SUMMARY OF ASSESSMENT
Pain and Suffering and Loss of Amenities
        Past Loss  $30,000
        Future Loss  $30,000                  $60,000
Loss of earning capacity
Past  $66,393
        Future  $143,000               $209,393
Loss of Superannuation Benefit  $21,000
Gratuitous Assistance  $4,000
Special Damages  $42,428
Future Medical Expenses
Medication  $3,400
        Psychologist Consultations  $2,800
        General Practitioners’ Consultations              $4,000                  $10,200
TOTAL  $347,021
There will be judgment for the Plaintiff for the sum of $347,021 together with special damages incurred between 7 November 2003 and today. Such further special damages to be agreed or be the subject of further evidence and submissions.
I also wish to hear the parties on both Interest and Costs.