Forder v Hutchinson
[2005] VSCA 281
•30 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3751 of 2004
| MAXWELL KEITH FORDER | |
| Appellant | |
| v. | |
| MALCOLM HUTCHINSON | Respondent |
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JUDGES: | MAXWELL, P., NETTLE, J.A. and HABERSBERGER, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 November 2005 | |
DATE OF JUDGMENT: | 30 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 281 | |
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COURTS AND JUDGES – Appeal – Functions of appellate court – Trial judge’s findings of fact inadequate – Demeanour of witnesses not determinative – Appellate intervention justified.
EVIDENCE – Expert evidence – Whether professor of chiropractic qualified to opine on osteopathic use of chiropractic techniques – Privilege – Letter from defendant to Chiropractors and Osteopaths Registration Board – Whether privileged under s.32 of Health Services (Conciliation and Review) Act 1987.
NEGLIGENCE – Causation – Whether causal connection between spinal manipulation and physical injury – Standard of care – Whether standard of care required of osteopath less than standard of care required of health professionals.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Appeared in person | |
| For the Respondent | Mr M.G.R. Gronow | Monahan & Rowell |
MAXWELL, P.:
I have had the considerable advantage of reading in draft the reasons for judgment of Nettle, J.A. I agree that the appeal should be allowed, for the reasons which his Honour gives, and that there should be a new trial before a different Judge.
NETTLE, J.A.:
This is an appeal from a judgment of a judge of the County Court given on 29 June 2004. The appellant’s claim below was that the respondent was negligent in failing to advise him of the risks associated with osteopathic manipulation of his neck and in the manner in which the respondent manipulated his neck. He alleged that as a consequence he suffered vertebro-basilar ischaemic syndrome with resultant pain and suffering which rendered him unfit for work. The judge dismissed the claim on the basis that he was not satisfied on the evidence that the respondent’s conduct fell short of the standards to be expected of a competent osteopath.
The appellant was represented by counsel at the trial but chose to represent himself for the purposes of the appeal. His notice of appeal, which he drew himself, is therefore a little unusual. It lists as his grounds of appeal:
“ *Point of Law
*Lack of Evidence
*Confirmation of Medication
*Income not considered
*Medical. Physio. X rays. To be presented.”
The grounds have become clearer, however, as a result of oral argument. As we understand the appellant’s position, he contends that the judge erred in
excluding admissible evidence, and erred as a matter of law in his consideration of the evidence, and that the judgment was against the evidence and the weight of the evidence. There is also an application to admit fresh evidence, although, for reasons that will later appear, it is unnecessary to decide it.
The facts
Although the judge reserved his judgment and delivered written reasons, his Honour made very few findings of fact. He simply referred to some of the evidence and concluded that he was not satisfied that the respondent did less than was required of an osteopath. It is convenient therefore to begin by setting out such of the facts as appear to have been established or agreed.
The uncontradicted evidence established that the appellant is now 59 years of age and started wrestling at the age of 8 years and continued with that sport until he was 18 years old. He left school at the age of 16 years, and worked in a number of occupations. Then for the six years immediately following school he worked for the Myer Emporium as an interior designer. In 1965 he was involved in a motor accident and, as the evidence showed, that may have caused him some spinal injury. Thereafter, however, he worked in jobs involving security services, sometimes on a permanent basis and sometimes on a casual basis, and in his mid-20’s he became interested in the martial arts. In 1972 he achieved a black belt, obtaining a 5th dan, in martial arts. He also spent four years in Thailand between 1986 and 1990 and after returning to Melbourne in 1990 he worked as a stunt man in films, performing stunts and choreographed fight scenes.
During the latter period, he began to experience chronic fatigue and flu-like symptoms for which, at first, no particular cause could be identified. Doctors at the Fairfield Hospital later diagnosed him as possibly suffering from Lyme Disease, which is a bacterial infection that is rare in this country (although ordinarily susceptible to treatment with the antibiotic Doxycycline) but by all accounts the plaintiff’s condition was particularly disabling. It prevented him from participating in sporting activities for some time and, although medication assisted with some of his symptoms, at least for a while, he continued to experience chronic fatigue.
During 1994 he attempted to overcome his difficulties by building back up his body through exercise and body building work and, as part of that process, he used to attend Brophy’s gymnasium in Windsor to work out. At some point, the owner of the gym recommended that he consult the respondent, who was a naturopath and osteopath practising from rooms in Kew, about the appellant’s Lyme disease symptoms.
There was a conflict of evidence (which may not be important) as to whether the respondent ever treated the applicant for a foot ailment with acupuncture at Brophy’s gym. It was common ground, however, that the appellant attended the respondent’s rooms on four or five occasions between October 1994 and December 1994 for treatment for his Lyme disease symptoms. There was some dispute as to which treatment was given and when but, subject to what is said below, the following was established:
1)The appellant had his first consultation with the respondent at the respondent’s rooms in Kew on 12 October 1994. He told the respondent, or the respondent ascertained by examination, that the Lyme disease symptoms from which he was suffering included joint pains, body aches, temperatures, fevers, stiffness, high pH, nausea and stress. The appellant also told the respondent that he had a painful neck and tinnitus. The respondent’s notes of the consultation recorded that the appellant further told the respondent that he suffered from an old neck injury. But the appellant was not certain that he did say that.
2)The respondent then connected the appellant to at least one and according to the respondent two separate machines, called “decoder-dermograph” machines, which were described in literature tendered in evidence as “... prospective diagnostic instruments in prophylactic medicine, which is based on the early treatment of diseases by genuine ascertainments”. Amongst other attributes referred to in the literature, it was claimed that the machines were capable of assisting in the detection of causes of chronic diseases, early detection of malignant processes, disclosure of conditions of pain and complaints of unclear origin, dietetic control of the mesenchymal PH range, and identification of functional disorders of the vertebral column and locomotor system.
3)After analysis of graphs produced by the machines, the respondent prescribed naturopathic medicine – described as a herbal kidney tea - for the appellant’s condition and advised that there were likely to be problems with the appellant’s spine that were aggravating his Lyme disease symptoms. He recommended a course of massage and possibly some manipulation of the appellant as beneficial in alleviating some of the stiffness. In cross-examination the appellant accepted that the respondent had said that the treatment regime would be a dual approach, the first part of which would be massage and then there would be manipulation of the appellant’s spine if needs be.
4)On 27 October 1994 the appellant attended for a second consultation. According to the respondent’s treating notes, the appellant told the respondent on that occasion that he had pain in his neck, his mid-thoracic spine, the middle of his back, his left ribs and his right hip, and headaches and paraesthesia. In cross-examination the appellant could not recall if he said that. The appellant agreed, however, that he was sent into the osteopathic room where he was given a massage by the respondent’s masseur and that after that had occurred the respondent came in and examined the appellant’s neck and knee. The respondent gave evidence that “he believed” that he had manipulated the appellant’s neck on that occasion, as he put it, with:
“a little gentle traction and rolling motion just to try to establish the movement in there and then if it was appropriate we give him [to] the compression test – well, not a test but a – a rotation of that vertebra slightly to see what movement we could get on it. It’s a very small movement [sic].”
The appellant denied that the respondent had on that occasion manipulated the appellant’s neck.
5)On 10 November 1994 the appellant attended for his third consultation. The respondent’s treating notes showed that the appellant said on that occasion, and the appellant accepted in cross-examination that he may have said on that occasion, that he was feeling better but that he still had pain on the left side and had neck pain and had mild tinnitus. The appellant recalled that the respondent had then palpated the appellant’s neck and his shoulders, the sides of his neck and the general spinal column. It was put to the appellant that the respondent had also manipulated the appellant’s neck on that occasion. But the appellant denied it and later the respondent conceded that he did not have a specific recall of the osteopathic treatment that he had administered on that occasion.
6)On 24 November 1994, the appellant attended for his fourth consultation at the Kew rooms. The respondent’s treating notes recorded, although the appellant could not recall, that the appellant had on that occasion told the respondent that he had pain in his right knee, his right braxial plexus[1] and the left side of the neck. The appellant and the respondent were agreed that the respondent had started work on the appellant’s knee and then manipulated the appellant’s neck. But there was disagreement as to the detail.
[1]The anterior divisions of the lower four cervical nerves, together with the greater part of the first thoracic, form the brachial plexus: Gray’s Anatomy, IX, Neurology, 6B.
7)According to the appellant’s evidence in chief, which was not shaken in cross-examination, the details were as follows:
“Mr Forder, what I was asking you was, was there any physical examination of you on that third visit? --- Only, only looking at the movement of my hip or my leg, my left leg, trying to move my right leg across, my left leg across and he commented that I seemed quite tense or stiff and I said that I [sic] was because I was cold.
…
Did he give you any diagnosis of what he believed your presentation involved? --- No, not at that point. He then, that’s the point where he moved to my upper body and - - -
Just a minute, before we get there I’ll come to that in a moment Mr Forder. Did he indicate to you what treatment he proposed to give you on that occasion? --- What, during this manipulation, no?
At the time you said he was examining your hip, when he examined the hip, did he then tell you what he thought the appropriate treatment was for your condition? --- No.
After he examined your hip, can you explain to His Honour how he moved, how he examined the hip, what he did with your hip? --- Well he was trying to rotate the hip joint with the knee and with the ankle, just lift – trying to move the leg around, I don’t know what for, I presumed that he was either doing some kind of test or he was going to try and manipulate my hip but he, like I said he changed his mind, he said that I was stiff, I seemed tense and I stated that I was cold. There was no warm up or no massage on that day, prior to this, I was just left in that room waiting, that other man was not there that day.
Did he say anything to you in response to your complaint of being cold? --- No.
What happened next on this occasion? --- Then he moved to the top end of the bench and proceeded to - - -
You are lying? --- I’m lying on my back, yes and then he moved to the end of the bench and was holding my head underneath and I presumed that he was maybe again, doing some kind of reflex test or flexion test, you know doctors do that, they bang your knee and they move you around. And then he lifted my head forward and that’s when the damage was done.
…
You used the word twist, can you describe how you say there was a twisting movement? ---Like I explained, he was holding my head, he not [sic] brought my head forward, he was holding my chin and twisted my head to the left; what I would describe as a jujitsu move. In martial arts the movement that would be sure to do that would be to kill somebody, no question.
…
What was the effect of that? --- Just unbelievable. Immediately I thought perhaps I’m a quadriplegic, I just – I went limp, I felt sick in the stomach, I felt pain.
Can you tell us where you felt pain? --- I felt pain in my neck and I felt pain in my stomach like a nervous reaction. I wasn’t quite sure what was going on, you know. I don’t know how long.
Was there a discussion with Mr Hutchinson at that stage? --- Well, I explained that I wasn’t feeling too good and he just said that, you know, sometimes you get a reaction.
…
Sorry Mr Forder, you mentioned a noise, you hadn’t mentioned that to the court before, what noise are you talking about now? --- It was a crack.
A crack? --- A crack like crack, you know, like sound like a snap, like when you break somebody’s joint or - - -
When did you hear that ? --- When he – when he twisted my neck.
Could you describe how loud that crack was? --- Well, how can I explain it, the snapping of a bone, how loud does that - how loud does that sound [?]
… it sounded a bit like when you crack a chicken bone…”
8)According to the respondent’s examination in chief, which was also unshaken in cross-examination, the details were somewhat different:
“On this occasion, 24 November, did you give him osteopathic treatment and naturopathic treatment? ---That’s correct.
What came first? ---The osteopathic at the 3.30 mark.
Do you say that by reference to your diary, do you? --- I do.
Do you have any recall of the treatment on this occasion, the osteopathic treatment? --- Only from the notes I’ve made, but I would say the treatment was okay, there was no problems with it.
On this occasion are you able to say specifically what the treatment would have been? --- Most likely similar to that of previous treatments.
What about the massage treatment? --- Absolutely you’d have massage before. We had a masseur signed and he was paid on a commission basis.
At the conclusion or in the course of the osteopathic treatment on 24 November, do you have any recall of Mr Forder suffering an injury? --- No.
Do you have any recall of him saying to you that the treatment hurt him in any way? --- It’s not uncommon for people to say: that hurt a little bit, or something like that, so that could have been the case.
That he said what? --- Well, I may have hurt.
…
Mr Forder has given evidence that there was a quite distinct crack in his neck. He described it like a chicken bone cracking. Do you have any recall of that ? ---No.
Would that be an unusual occurrence if it happened? ---Yes, yes, it certainly would be.
Do you believe that you’d remember something like that if that had happened? --- Yes.”
9)According to the appellant there was a fourth consultation on or about 1 December 1994. In chief the appellant said that seven or eight days after his neck was manipulated he telephoned the respondent and complained[2]:
“Sorry, tell me what you told Mr Hutchinson? --- I told him that I was having these choking fits, was having difficulty breathing on the left side, I had difficulty lying down; I felt giddy, I was suffering from visual problems, stroking [sic], vertigo, I was having trouble with my balance, and was extremely hard to lie down flat to sleep, I had to be raised as I have been for the last ten years, and for five years couldn’t sleep in a bed.”
10)He explained further in cross-examination that:
“… - - - I rang up and complained and he said to come back and then I described the symptoms to him over the phone and I described the symptoms to him then and he said that it would be – there needs to be some kind of readjustment because obviously something’s not right and it will just take a slight nudge, absolutely, absolutely.”
The respondent denied that there was any such consultation. He said that there was no further manipulation after 24 November 1994.
11)Both parties agreed that the last consultation occurred on 15 December 2004 and that the appellant had on that occasion complained about the treatment he had been given. In examination in chief the respondent said that:
“... - - - I couldn’t recall exactly what was said but it was – obviously, he wasn’t happy about the treatment at that stage.”
According to the respondent’s treating notes, however, the appellant complained that he had:
“... - - - tinnitus still and tired, stiffness of neck still exists, feels dissatisfied that treatment hasn’t cleared his Lyme’s Disease, stressed as usual.”
[2]In Prof. Terrett’s report at page 4 he states “Mr. Forder told me that the following day, and for several days later he rang the practitioner, who refused to meet him.”
The evidence of Professor Terrett
The appellant called Professor Terrett as an expert witness. He was an Associate Professor at the RMIT University and a part-time chiropractic practitioner. He held a Diploma in Applied Science in Human Biology, the degree of Bachelor of Applied Science in Chiropractic, the degree of Master of Applied Science in Chiropractic, and a Fellowship Degree in Clinical Sciences specialising in orthopaedics and neurology. Professor Terrett taught both chiropractic and osteopathic students but did not profess any knowledge of the practices of naturopaths in 1994 and he was not familiar with the machines used by the respondent, or the charts produced.
It was Professor Terrett’s opinion that the appellant’s signs and symptoms corresponded “to those of a vertebrobasilar ischaemic syndrome, which is well documented following neck manipulation” and that “[t]he signs and symptoms of vertebrobasilar syndrome are produced because of the brainstem structures affected, and are easily remembered by the mnemonic , the 5 Ds and 3 Ns.
1. Dizziness/vertigo/ giddiness/ light headedness;
2. Drop attacks/ loss of consciousness;
3. Diplopia (or other visual problems);
4. Dysarthria (speech difficulties);
5. Dysphagia (swallowing difficulties);
6.Ataxia of gait (walking difficulties/unco-ordination) of the extremities/ ataxia/ falling to one side;
7. Nausea (with possible vomiting);
8. Numbness on one side of the face and/or body;
9. Nystagmus.”
Professor Terrett observed that Mr Forder suffered “every one of those signs and symptoms” and that “it is possible that the neck manipulation resulted in either dissection or spasm of the vertebral artery, resulting in transient brainstem ischaemia”. He further explained that vertebrobasilar ischaemic syndrome was a well-documented complication of neck manipulation therapy and that “an average osteopathic practitioner should be aware of possible adverse effects following osteopathic treatment, the significance of such adverse reactions, and appropriate actions if such adverse reactions occur post treatment”. Professor Terrett said that :
“The temporal relationship between the [appellant’s] manipulation, and the onset of the signs and symptoms of vertebrobasilar ischaemia strongly suggests a cause and effect relationship. “ …
and that the respondent had failed - among other respects - to undertake an adequate physical examination or history of the area to be treated and by repeating the treatment after the onset of the adverse reaction following the manipulation of 24 November 1994.
It was put to Professor Terrett in cross-examination that his diagnosis was totally dependent on what the appellant had said were his symptoms. He rejected that proposition. He pointed out, as he stated in his report, that he had carried out a number of examinations and tests on the appellant and that his opinion was based as much on the results of the tests as on the appellant’s history. He was then asked if he knew that the appellant had a motor accident in 1965 and he responded that he did not. He was not asked, however, if the fact of the motor accident or such injury as it may be thought to have caused would alter his opinion. He was also asked whether he knew that the appellant had been diagnosed in 1991 with “a problem of the cervical spine” and he said he did not. But, again, he was not asked if such would make any difference to his opinion and it was not sought to impeach his opinion in any other respect.
Dr Karabatsos’ evidence
The appellant called as witnesses his current general practitioner, Dr Karabatsos, and his previous general practitioner, Dr Ehrenreich. Dr Karabatsos held the qualifications of Bachelor of Medicine and Bachelor of Surgery, and was a Fellow of the Royal Australian College of General Practitioners. She explained that she had first seen the appellant in July 1995 in relation to another condition. She said there was no clear diagnosis for the appellant’s symptoms but that, based on the advice of others and as the story had evolved, she had come to believe that the neck manipulation significantly contributed to the appellant’s symptoms.
Dr Ehrenreich’s evidence
Dr Ehrenreich held the degrees of Bachelor of Medicine and Bachelor of Surgery. He said that he first saw the appellant in August 1993 when the appellant had told him that he was involved in a car accident when he was 19 years old, which had caused a fractured cervical spine and ribs. Dr Ehrenreich then explained the aliments for which he had treated the appellant in the months which followed, up to early 1995. Importantly, he said that the appellant attended his rooms on 29 December 1994 and told him that he had had an osteopathic manipulation two weeks before which had caused him severe pain and to be admitted to the Fairfield Hospital for three days. Dr Ehrenreich’s examination revealed some restrictive neck movement.
Mr Kingsley Mills’ reports
The respondent tendered a number of medical reports, presumably to rebut the suggestion that the respondent was responsible for the appellant’s condition. But, ironically, by and large they appear to be consistent with the appellant’s case:
In a report dated 5 June 2002, the orthopaedic surgeon, Mr Kingsley Mills, F.R.C.S. F.R.A.C.S. F.A.Orth.A, stated:
“A violent manipulation can cause symptoms of pain and stiffness and it is possible to cause some structural damage. Other symptoms appear to be related more to anxiety and depression than measurable damage on an X-ray, or a recognisable neurological deficit. As far as I am aware, no X-rays were ever taken prior to the manipulation and none were take at any stage afterwards until the MRI on 6/9/2000. Therefore one can only state that on general grounds forceful manipulation rarely achieves any positive effect and there are many recorded examples of adverse consequences some involving major neurological loss. It is my view that no manipulation, violent or otherwise, of the cervical spine should be undertaken without first referring to recent X-rays.”[3]
[3]My emphasis.
In a second report dated 25 June 2002, Mr Kingsley Mills expressed a further opinion after examining X-rays taken on 18 July 1996 and 31 October 1996. He noted cervical spondylosis at C5-6 and C6-7, that there appeared to be a degree of calcification at C1 around the odontoid process, and that the movement of the appellant’s cervical spine was significantly restricted. Mr Kingsley Mills continued:
“These changes particularly between the odontoid process and C1 are present both in July and October 1996 and would be expected to significantly reduce his range of rotational movement. It is difficult to be certain as to the origin of them but trauma would be the most likely reason, and this would have happened a considerable time prior to the films in 1996. It would be very difficult to relate this to one specific event at a considerable time prior to 1996 but there could be some relationship between the events such as a forced manipulation and the aggravation of symptoms. CT scan is the best way to evaluate this.
…
These X-rays do raise the possibility of some structural damage being done or at least an aggravation of that damage. In the report of the MRI of the cervical spine, there is no mention of the C1-2 level and I suspect it was not visualised. However if that MRI investigation is available it should be looked at and compared with the 1996 films of C1 and the odontoid process.
…I would judge that there is some psychological reaction with Mr Forder, but in view of the X-rays supplied I would not wish to labour that point.”[4]
[4]My emphasis.
Mr Kingsley Mills produced a third report, dated 26 May 2003, but he did no more in that than refer to some notes obtained from Fairfield Hospital of the appellant’s presentation there in December 1994 and make some observations on what he took to be the absence from those notes of a record of complaint about the results of the manipulation in November 1994. Of course his views on that were irrelevant.
Dr David Gale’s report
There was also a report dated 2 September 2002 prepared by an ophthalmologist, Dr David Gale, M.B. B.S., (Melb) D.O.(R.C.P.& S) F.A.C.S. Ed., F.R.A.C.S., F.R.C.S., F.R.A.N.Z.C.O, F.R.C.Opth (U.K.). Dr Gale recorded the appellant’s complaints that his vision had become blurred and that he had balance problems as a result of the manipulation of his neck on 24 November 1994, and that those difficulties had continued. The appellant complained that when he looked up he got giddy and dizzy and that he had difficulties with television and reading and that those difficulties were worse when he looked left. Dr Gale opined that, from a purely ophthalmological point of view, the manipulation had not interfered with the appellant’s eye co-ordination, but noted also the reports from Mr Kingsley Mills that there was evidence of cervical spine disease. Dr Gale added that there had been reports of damage to the vertebral arteries occurring after or as a result of neck manipulation and that in this instance, if there were rapid movement towards the left a vertebral artery (which passes to the brain in the cervical vertebrae) could have been involved. If that occurred, he said, it could provide another possible mechanism for the appellant’s symptoms when, due to some altered blood circulation in the brain, some disturbance of vestibular functions could have been initiated.
Dr Geoffrey Littlejohn’s reports
Finally, there were reports dated 5 May 1995, 24 May 1995 and 12 June 2003, by Dr Geoffrey Littlejohn, who was a rheumatologist to whom Dr Ehrenreich had referred the appellant in May 1995. In the report dated 5 May 1995, Dr Littlejohn said nothing about the manipulation on 24 November 1994 and noted that the appellant attributed ongoing symptoms of episodic fatigue, musculo-skeletal pain and previous neurological deficits to Lyme disease. In the report dated 24 May 1995, Dr Littlejohn discussed the low level fibromyalgia (which he had previously diagnosed in the 5 May 2005 report) which he said occurred in the context of stress reactions and the usual management of which in the stress context is dealing with the initiating circumstances with counselling or psychological strategies. In the report of 12 June 2003, which was sent to the appellant’s solicitors, Dr. Littlejohn reiterated that he had diagnosed fibromyalgia and stated that it was a common pain syndrome due to psychological distress whereby the pain system becomes overly active and painful musculo-skeletal symptoms supervene.
The judgment below
As already noted, the judge did not make many findings of fact as such. His approach instead was to dismiss the appellant’s claim on the basis of his Honour’s assessment of the appellant’s credibility and what his Honour considered to be an absence of expert evidence as to the standard of care expected of an osteopath. His Honour began with the assessment of credibility as follows:
“... I found it very difficult to follow Mr Forder’s evidence and I found him to be a witness that I could not place strong reliance on unless there was some alternative means of identifying the truth or otherwise of what was being put.
Whilst on the subject of credibility, I have to say that Mr Forder’s opponent, Mr Hutchinson, was not much of a witness either. Frequently, I wondered whether or not he had understood the question that he was being asked, but whether that was the case or not, I did not find him to be a marvellous witness either. That brings about ... the consequences of my not being able to place reliance upon either of them with much confidence…”
The judge reasoned then that he was left in a position where he could not determine how violent may have been the manipulation effected on 24 November 1994:
“I should say that Mr Forder had demonstrated in the course of these descriptions a violent rotation of his neck backwards and forwards. ‘Could you clarify for the court, when you said he moved your head forward ---‘ ‘And to the side at the same time.’ ‘Perhaps you could indicate where your chin was in relation to your chest?’ ‘Well, it felt like it was touching my chest.’ ‘You use the word ‘twist’, can you describe how you say there was a twisting movement?’ ‘Like I said, I was holding my head – he brought my head forward and he was holding my chin and twisted my head to the left in which I would describe as a jujitsu move. In martial arts, the movement that would be used to do that would be to kill somebody, no question’.
…
The defendant denies that the violence attributed to him by Mr Forder took place. He contends that the handling of the neck which did take place was gentle and was not manipulative, it imposed no strain on the neck and caused no problem. Since, as I’ve said before, I find neither the plaintiff or the defendant witnesses that I would regard as being entirely reliable, I am left in a situation where I just don’t know what the situation was in relation to the degree of violence imposed on the neck.”
The judge next turned to the question of standard of care, and said that the evidence was insufficient to enable him to determine the standard to be expected of an osteopath in the position of the respondent:
“In the end, I have to look at the fact that the only osteopath and the only naturopath who gave evidence was the defendant. I accept Professor [Terrett] as being an expert in his field, which is chiropractic. The fact that some osteopathic students are lectured to by him does not make him an expert in osteopathy since he did not claim to lecture them in any osteopathic techniques or naturopathic techniques. It follows from that, I believe I can safely conclude that as much as Professor [Terrett] does with osteopathic students to lecture them about chiropractic techniques, and where insofar as they might coincide at some points with osteopathy [sic]. It’s not for want of enquiry that I am left in this situation. I was trying to find out at various points in the trial what the area of expertise was and was met with the vague sorts of unsatisfactory answers of which Mr Forder proved himself a master, and that also seemed to be the case with Mr Hutchinson when I pressed him on this matter. Such explanation as he did provide leaves me to think that the analysis is made of the contact that Professor [Terrett] has with osteopathic students is the right and proper and sound one [sic].”
It followed, the judge said, that he was not satisfied that there had been a breach of duty and therefore that the appellant’s claim must fail:
“In the circumstances, therefore, I am not satisfied that there has been such a breach of the expertise expected of a naturopath or an osteopath in this case as would require a finding that there is legal liability to pay damages for whatever the consequences were of the treatment miscarrying in the way in which Mr Forder claims it did.”
His Honour also said that there was no or insufficient evidence with which to determine the standard of care to be expected of a competent osteopath in carrying out a manipulation of the kind in question.
Errors in the judge’s reasoning
With respect, it appears to me that the judge’s reasoning is erroneous in a number of respects.
To begin with, the judge’s perception of the appellant’s creditworthiness, as stated, was significantly informed by what his Honour considered to be an indication in Fairfield Hospital treating notes that, when the appellant was admitted to the Fairfield Hospital in December 1994 for treatment of his Lyme disease symptoms, he did not attribute the symptoms of which he now complains to the manipulation of 24 November 1994. As his Honour put it:
“I should say at this point that it was put to him in cross-examination that, as of that visit in December to the Fairfield Hospital after the incident with Mr Hutchinson, very extensive notes were taken by the admitting official. The notes were at considerable variance to what Mr Forder had to say…
There was mention of Reiters disease, which is in the notes, but Mr Forder denied telling them upon admission that his feeling at that stage was the best he had been since 1985. ‘It was all right for a month or so, then he got pain in his neck and he seemed to be starting all over again. A month ago, in great health, no pain, sleeping well, no tiredness, good appetite, like he was pre-1985’. All of that was not agreed to by Mr Forder, but it is my view that his denials did not contain – for me – the ring of correctness. I note that on this occasion, the notes that were taken were very extensive and appear to me to have covered pretty well all of the complaints which Mr Forder made to me and indeed a considerable amount more than that.
It does not afford, without the direct evidence from the person to whom these things were said, evidence that in the face of his denial one can take to be a true account, but it strikes me that it is somewhat co-incidental, to say the least of it, that these extensive notes do cover the general area that Mr Forder wished to advance as being the immediate effects of the manipulation that he said was carried out.”
That analysis breaks down at several levels. The notes were not admitted as evidence as proof of their contents. They were not proved as business records and the maker of the notes was not called. The appellant maintained in oral evidence that he had informed the doctors at the Fairfield hospital that he had been injured by the manipulation. The respondent did not call anyone from the Fairfield Hospital to rebut that evidence. And the contents of the notes (even if admissible as proof of their contents) were not necessarily inconsistent with the appellant having told the Fairfield Hospital doctors that the symptoms of which he now complains were caused or exacerbated by the manipulation of 24 November 1994. Among other things, the notes contained the following:
“Approximately 2 months ago seen Dr Malcolm Hutchinson (Kew) a naturopath and osteopath. (Can’t claim on Medicare). Mr Forder has seen him 4 times. Given zinc – C – lozenges –
… .
It was all right for one month – then he got pain in the neck – ‘seems he started all over again’.”
It may be noted that the “one month ago” corresponds more or less exactly with 24 November 1994.
In the second place, it is to be observed that any idea of recent invention (based on the absence from the Fairfield Hospital notes of explicit reference to the results of the manipulation) left out of account altogether a range of matters to which the judge did not refer. They included the following unchallenged evidence of Dr Ehrenreich that:
“I first saw Mr Forder regarding this issue [scil. the effects of the manipulation] – on December 29, 1994…
…He’d stated that he’d had an osteopathic manipulation two weeks prior to that date, which had caused him severe pain and caused him to be admitted to Fairfield Hospital where he was admitted for three days. He had severe neck pain and headaches. … My examination revealed some restrictive neck movements and I gave him a prescription for Naprosyn, which is an anti-inflammatory.”
They also included the unchallenged evidence of Dr Karabatsos that, in the early part of 1995 when she took over from Dr Ehrenreich, the appellant:
“…claimed to have persistent symptoms of vertigo, light-headedness, occasional loss of consciousness that led to sort of like drop attacks, and he was sort of swaying to the side, he had difficulty in speaking, occasionally had a sensation of choking, difficulty in swallowing, coordination loss and a numbing down the left side of his face and fatigue. These have been persistent symptoms and have been consistent since I’ve known him.”
There was also a letter of complaint which the appellant had written to the respondent on 28 February 1995 in which the appellant stated:
“Your treatment was inopropriate [sic] for condition and has left me with permenant [sic] pain and ringing in my left ear, unnessary [sic] pain and suffering for the past 3 months.”
In the third place, during the course of the respondent’s cross-examination, counsel who then represented the appellant sought to put questions to the respondent on the contents of a letter written by the respondent to the Chiropractors and Osteopaths Registration Board on 4 November 1996. Counsel for the respondent objected, however, on the basis that ss.20 and 32 of the Health Services (Conciliation and Review) Act 1987 provided that the documents were privileged, and the judge upheld the objection.
In fact the letter was not privileged or otherwise protected from disclosure under the Health Services (Conciliation and Review) Act[5]:
[5]As is now conceded.
Section 20 of the Health Service (Conciliation and Review ) Act 1987 provides among other things for the Health Services Commissioner to refer any complaint made against any osteopath or naturopath (of which notice must be given to the osteopath or naturopath under s.22 of the Act) to a conciliator for conciliation.
Section 32 in turn provides that a person who holds or has held a position as Health Services Commissioner, delegate, conciliator, participant in a conciliation, body to whom the commission refers a complaint, or person who has received a copy of a notice of complaint under s.22 of the Act, shall not disclose “information gained because of“ that position.
Consequently, if the appellant had acquired the letter of 4 November 1996 from the Health Services Commissioner or from the conciliator, or because of the appellant’s position as a participant in a conciliation, it may be that the letter would have been protected by s.32 of the Act and that the judge would have been correct to uphold the objection. Arguably, the position would have been comparable with that in which McGarvie, J. upheld a claim to privilege or protection from disclosure in PQ v Australian Red Cross Society[6] under the analogous provisions of s.141 of the Health Services Act 1988.
[6][1992] 1 V.R. 19 at 25.
But, as counsel for the appellant stated clearly to the judge in the course of the objection debate, the appellant did not get the letter from any of those sources. The affidavit of documents showed that the document came from the possession or power of the respondent who discovered it and claimed privilege for it.
Further, upon examination it can be seen that neither the letter nor the contents of the letter was information gained by the respondent because of his position as a participant in a conciliation or in any of the other capacities mentioned in s.32. As appears from the terms of the letter, it was a copy of one sent by the respondent to the Chiropractor and Osteopaths Registration Board in answer to a letter sent by that Board to the respondent under s.13A of the Chiropractors and Osteopaths Act 1978.
Perhaps the respondent sent the letter of 4 November 1996 because he was the recipient of a notice under s.22 of Health Service (Conciliation and Review ) Act 1987 or because he was a participant in a conciliation inquiry or investigation under that Act. But even if so, it would still not be within the protection afforded by s.32. Sending information is not “gaining information”; it is the converse of gaining information, and so therefore the fact that the respondent may have sent information in a designated capacity does not mean that he gained it in that capacity.
Finally, it is plain from the contents of the letter that the respondent did not gain the information because of his position as a person who received a notice under s.22 or in any of the other capacities which are mentioned in s.32. The letter is a recitation of the appellant’s condition at the time when the respondent treated him and an explanation of the treatment which the respondent administered.
In the result, in my judgment, there was nothing in the Act which prevented the respondent being cross-examined on the contents of the document or which protected him against cross-examination on that basis.
In the fourth place, the consequence of the judge’s error in upholding the objection was to exclude evidence which was relevant to and strongly supportive of the appellant’s credit and case. The substance of the letter was as follows:
“Re complaint by Mr Maxwell Forder.
My apologies for the delay in response to your request. I thank you for the extension of time.
In response to Mr Forder’s complaints I would like to point out firstly, that the symptoms of which he complains of, he has actually been suffering for some time prior to any consultations with myself. He has also made many statements which are not factual.
He has previously complained to A.N.T.A to whom I have replied, and I enclose correspondence relating to those matters.
I will not proceed with the details of his letter.
...
The date to which he refers to when his apparent injury occurred, which he states was his third visit, was actually his Fourth appointment was the 24th of November. Now on that day it was his Third full Osteopathic treatment which included massage, followed by a naturopathic consultation. My notes and computer readout, which automatically prints the date on the printout states that he was not suffering from the symptoms that he is complaining about. He said that he was feeling very well! He mentioned to the staff that he was feeling ‘the best he had felt in ten years’. It appears to me that between the 24th of November and the First of December he developed the symptoms to which he complains of. He was attending Gym workouts during that period and may have created stress to his neck at some time in that period. He certainly did not have any symptoms when he left on the 24th of November.
His next appointment was the First of December which was for a naturopathic session and that was when he complained of suffering from Tinnitus and stiff and painful neck.
I noted that he was very stressed and also suffering from sinusitis. I had recorded his comment prior to examining his neck and lower back. After which I did some soft tissure [sic], massage and testing procedures for any signs of vertebral artery insufficiency. I was unable to relieve his pain, as he was so stressed on that day I did not feel it wise to proceed with any more treatment. At no stage did he suffer any temporary blackout as he describes, nor did he need any assistance in returning to the reception area, where he spent some time discussing his account and collecting some tablets before he drove his own car home.
He returned again on the 15th of December for a further Naturopathic consultation and medication relating to his general health.
On the 21st of December he arrived at the clinic without an appointment and mentioned he was still suffering from tinnitus and I again examined him, but he was not given any Osteopathic treatment and suggested relaxation may help. He again complained about the cost of treatments. A price list of fees is displayed at the reception desk clearly.
I had further telephone conversations with him in late January 95 when he said he wanted a refund of some his money he had paid as he had been overcharged and unhappy about the treatment he received. I mentioned that I would investigate the matter and advise him as to the outcome…”[7]
[7]My emphasis.
As may be seen, although the letter contained denials of any misfeasance, it also contained admissions that the appellant was not suffering the symptoms of which he now complains when he attended for treatment on 24 November 1994; that he developed those symptoms after being manipulated on 24 November 1994; and, implicitly, that the appellant returned to the respondent on 1 December 1994 complaining of those symptoms. In effect, therefore, the document substantially rebuts significant parts of the attack made in cross-examination on the appellant’s credit, and in significant respects is also probative of the appellant’s complaint that the manipulation of 24 November 1994 was a cause of his symptoms.
One example of the way in which the letter bears on the assessment of credibility concerns the proposition put to the appellant in cross-examination that the respondent had not undertaken any osteopathic treatment on 1 December 1994 in an attempt to cure the symptoms of which the appellant says that he then complained. The letter suggests that that is exactly what the respondent did. A second consideration is that the respondent’s admission that the appellant’s symptoms appeared between 24 November 1994 and 1 December 1994, and that the appellant complained about them on 1 December 1994, is a further counter to the suggestion of recent invention that the judge thought to be supported by the contents of the Fairfield Hospital notes. A third aspect of the matter is that the judge’s only conclusion as to the degree of violence with which the respondent manipulated the appellant’s neck was that, because his Honour perceived that he could not place any reliance on the appellant’s testimony unless corroborated, and because there was no corroboration, his Honour was left in a situation where he did not know what degree of violence had been used. In fact, as the admissions made in the letter of 4 November 1996 show, the appellant’s level of distress when presenting for treatment on 1 December 1994 was so extreme that the respondent was unable to relieve the appellant’s pain and judged it prudent not to proceed any further with osteopathic treatment. That was evidence capable of amounting to corroboration of the appellant’s testimony.[8]
[8]R v Flannery [1969] V.R. 586 at 591; cf. C v Waye (1984) 14 A.Crim.R. 391 at 393; Cross on Evidence, Aust. Ed. at [15195].
In the fifth place, I consider that the judge was in error in confining his analysis to an assessment of the appellant’s and the respondent’s credibility. That may well have been a logical place to start, but it was by no means the place to finish. The question for the judge was not merely whether he accepted or rejected the appellant as a witness of truth, but whether the inference could properly be drawn from the whole of the evidence that the respondent’s manipulation of the appellant’s neck caused the appellant’s symptoms. It was necessary therefore for his Honour to consider the evidence which stood independently of the appellant’s testimony and then to consider it in conjunction with the appellant’s testimony. That evidence included the physiological evidence recorded in Professor Terrett’s and Mr Kingsley Mills’ reports; the opinions recorded in their reports; and the respondent’s admissions. His Honour ought also have taken into account the opinion of Dr Gale. As noted earlier, Dr. Gale said there had been reports of damage to the vertebral arteries occurring after or as a result of neck manipulation and that, in this instance, if there were rapid movement towards the left, a vertebral artery, which passes to the brain in the cervical vertebrae, could have been involved. If that occurred, Dr. Gale said, it could provide another possible mechanism for the appellant’s symptoms, when, due to some altered blood circulation in the brain, some disturbance of vestibular functions could have been initiated.
In the sixth place, I consider that the judge erred in his analysis of the question of whether there was sufficient evidence to enable him to ascertain the standard of care required of an osteopath in the circumstances of the respondent. It will be remembered that his Honour took the view that Professor Terrett was not qualified to give evidence as an expert on that question:
“... I accept Professor Terre[t]t as being an expert in his field, which is chiropractic. The fact that some osteopathic students are lectured to by him does not make him an expert in osteopathy since he did not claim to lecture them in any osteopathic techniques or naturopathic techniques. It follows from that, I believe I can safely conclude that as much as Professor Terre[t]t does with osteopathic students to lecture them about chiropractic techniques, and where insofar as they might coincide at some points with osteopathy [sic].”
In my view, that reasoning was erroneous. One may take judicial notice[9] that chiropractic is a system of health care of which the principal method of treatment is spinal manipulation[10] and that osteopathy is a holistic approach to health care which embraces a range of treatments, including chiropractic treatment.[11] Self-evidently, when the respondent manipulated the appellant’s neck he was using chiropractic treatment as an osteopath. There was no dispute that Professor Terrett was qualified to express an opinion on chiropractic treatment by osteopaths. Indeed, as the judge observed, Professor Terrett taught chiropractic techniques to osteopathic students. Plainly, therefore, Professor Terrett was qualified to express opinions which were directly relevant to the standard of care to be expected of an osteopath performing a spinal manipulation of the sort in question.
[9]Timbury v Coffee (1941) 66 C.L.R. 277 at 283-4; Jaensch v Coffey (1984) 155 C.L.R. 549 at 600-1; Cross on Evidence, Aust Ed. at [3070].
[10]Medline Plus, Medical Encyclopaedia, /002001.htm.
[11]MedTerms.com Medical Dictionary, medterms.com/script/main/hp.asp.
I consider that the judge was also in error in failing to refer to or consider Mr Kingsley Mills’ unchallenged opinion that forceful manipulation rarely achieves any positive effect; that there are many recorded examples of adverse consequences, some involving major neurological loss; and that no manipulation, violent or otherwise, of the cervical spine should be undertaken without first referring to recent X-rays. Of course Mr Kingsley Mills was a leading surgeon, and the respondent was only an osteopath, and it is not necessarily to be expected that the standards asked of an osteopath will be the same as those of a surgeon. But the standard of care to be expected of a professional is not wholly circumscribed by the standards of his profession.[12] The question is in the end one of reasonable care and, even in the sphere of diagnosis and treatment, the Bolam principle has not always been applied.[13] Therefore, taken in conjunction with Professor Terrett’s evidence, it appears to me that Mr Kingsley Mills’ observations were relevant to the question of whether the respondent breached the standard of care properly to be expected of him.
[12]cf. Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 at 586; Whitehouse v Jordan [1981] 1 W.L.R. 246.
[13]Albrighton v Royal Prince Alfred Hospital [1980] 2 N.S.W.L.R. 542 at 562-3; Rogers v Whitaker (1992) 175 C.L.R. 479 at 487; Breen v Williams (1969) 186 C.L.R. 71 at 114; Rosenberg v Percival (2001) 205 C.L.R. 434 at 453[62], per Gummow, J.; and see now Wrongs Act 1958 s.59(2).
It was submitted on behalf of the respondent that Professor Terrett’s and Mr Kinsley Mills’ opinions were dependent upon the appellant’s report of his symptoms, and that it was to be remembered that the judge did not consider that the appellant was a credible witness. I do not find that submission persuasive. Professor Terrett’s report was not, or was not wholly, dependent on the appellant’s report of symptoms. As he said when taxed on the point in cross-examination, he carried out a number of examinations and tests on the appellant and his opinion was based as much on the results of the tests as on the appellant’s history. Equally, Mr Kingsley Mills’ opinion was not wholly - and, on one view of the matter, not at all - based on the appellant’s report of symptoms. It was based on objective X-ray evidence. The opinion was that there was spinal damage and that having regard to the nature of that damage: “there could be some relationship between the events such as a forced manipulation and the aggravation of symptoms”. Further, as I have endeavoured to explain, I think that there is reason to doubt the judge’s assessment of the appellant’s credibility.
It was further submitted on behalf of the respondent that Professor Terrett’s and Mr Kingsley Mills’ opinions rose no higher than that the appellant’s symptoms might have been caused or aggravated by the respondent’s manipulation of the appellant’s neck, and that that was not enough to sustain judgment in favour of the appellant. As the respondent said, it was incumbent on the appellant to establish on the balance of probabilities that the manipulation did cause or aggravate his symptoms. But I also reject that submission. Of course it is incumbent on the appellant to establish causation on the balance of probabilities.[14] Unless he can do so he will fail.[15] But it does not follow from the fact that Professor Terrett’s and Mr Kingsley Mills’ opinions went no further than that the manipulation could have been causative, that the appellant is bound to fail in establishing that it is probable that it was causative. To the contrary, the law is that even where medical opinion evidence goes no higher than that an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition. As Mason, J. put it in Tubemakers of Australia v Fernandez[16]”
“... In drawing such an inference [the judge] was entitled to have regard, in addition to the matters referred to by [the expert] in his evidence, to other significant circumstances: (a) that before the [event] the [appellant] had suffered no disability; (b) that the condition made its appearance shortly after the [event]; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with [the expert’s] evidence, provided in my opinion, a sufficient basis from which the [judge] could draw an inference favourable to the [appellant].”[17]
[14]Bonnington Castings Ltd v Wardlaw [1956] A.C. 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 A.L.J.R. 410 at 417; 1 A.L.R. 125 at 138; Tubemakers of Australia Ltd v Fernandez (1976) 50 A.L.J.R. 720 at 724; 10 A.L.R. 303 at 310-311; March v Stramare (E & MH) Pty Ltd (1991) 171 C.L.R. 506 at 514.
[15]Chappel v Hart (1998) 195 C.L.R. 232 at 269[93(9)], per Kirby, J.
[16](1976) 50 A.L.J.R.720.
[17]at 724; see too Dahl v Grice [1981] V.R. 513 at 520-522, per Gobbo, J.
Finally, it was submitted that, in effect, come what may, the trial judge was uniquely placed to assess the credibility of the appellant, whose evidence was vital to establish his claim, and that this court is not in a position to second guess or otherwise disregard the judge’s assessment. I reject that submission too. That is not to deny the importance which ordinarily is to be attached to a trial judge’s assessment of the credibility of a witness.[18] Nor is it to suggest that the weight to be accorded to medical opinion evidence may not depend upon an assessment of the credibility of the subject on whose report of symptoms the opinion is based.[19] Obviously, if a medical opinion is premised on a plaintiff’s version of the facts, and the plaintiff is disbelieved, so too may be the opinion.[20] But as the majority of the High Court said in SRA v Earthline[21], the fact that a trial judge is heavily swayed by his or her impression of a witness’s oral evidence does not necessarily preclude a court of appeal from concluding that the judge has acted in error, less still from concluding that the judge’s conclusion may be erroneous. As Kirby, J. explained, it may be possible to show by reference to incontrovertible facts that the judge’s conclusions were wrong or to demonstrate that, although the judge reached conclusions adverse to the credibility of an important, even critical, witness, he or she has done so on the basis of evidence which was wrongly admitted or, as I would add, wrongly excluded, and thus that the judge has not properly weighed all the relevant considerations. There are also cases where, although a credibility finding has been made which represents an apparent obstacle to appellate intervention, the finding is so much contrary to the compelling inferences of the case that it justifies and authorises appellate interference in the conclusion reached by the judge.[22]
[18]Abalos v Australian Postal Commission (1990) 171 C.L.R. 167; Jones v Hyde (1989) 85 A.L.R. 23; Devries v Australian National Railways Commission (1993) 177 C.L.R. 472.
[19]Bugg v Day (1949) 79 C.L.R. 442 at 462; Makita (Australia) Pty Ltd v Sprowles (2001) 52 N.S.W.L.R. 705 at [64]-[82]; Cross on Evidence, Aust Ed. [29065].
[20]Whisprun v Dixon (2003) 200 A.L.R. 447 at 452[19].
[21]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 A.L.R. 588.
[22]Ibid at 620-621.
Appellate intervention is justified
For the reasons which I have given I consider that the judge’s assessment of the appellant’s credibility was flawed. So far as can be told from the reasons for judgment, it was at least to some extent premised upon a misconception of the effect of the Fairfield Hospital notes; it left out of account the evidence of complaint to Dr Ehrenreich and Dr Karabatsos, as well as the letter of complaint of 28 February 1995; and it was reached without regard to the admissions in the letter of 4 November 1996, which was wrongly excluded from evidence, and consequently without the benefit of cross-examination of the respondent on the contents of that letter.
Equally, for the reasons which I have given, I also think that the judge erred in failing to consider the probative effect of such of the physiological evidence in the reports of Professor Terrett and Mr Kingsley Mills and Dr Gale as was not dependent on the appellant’s history of his symptoms, both independently and in conjunction with the admissions in the letter of 4 November 1996 and the appellant’s testimony. I consider that his Honour ought to have, but failed to, assess whether the totality of that evidence was sufficient to support the inference that the appellant’s symptoms were caused or aggravated by the manipulation.
Whether upon a proper consideration of all of the evidence the judge would have reached that conclusion I am unable to say. I have not had the advantage of seeing the appellant or the respondent in the witness box, and so I am limited in the ability to assess their credit, and the respondent has not been subjected to cross-examination on the letter of 4 November 1996 in the way that I consider that he should have been. This therefore is not a matter in which this court is in a position to
determine the outcome of the case.[23] I am, however, satisfied that the judge’s exclusion from evidence of the letter of 4 November 1996, and the prevention of such cross-examination as may have been based upon it, and his Honour’s failure to consider all of the evidence in the fashion I have mentioned, is likely to have influenced the result to which his Honour came.[24] In the result I consider that a substantial wrong or miscarriage has thereby been occasioned in the trial.
[23]Vandeloo v Waltons Ltd [1976] V.R. 77 at 87; Murphy v Mark [1977] V.R. 316 at 321.
[24]Cf. Balenzuela v De Gail (1959) 101 C.L.R. 226 at 242-3,per Windeyer, J.; Nominal Defendant v Clements (1960) 104 C.L.R. 476 at 496.
Conclusion
I would therefore allow the appeal, set aside the judgment the subject of appeal and remit the matter to the County Court for a new trial before another judge.
HABERSBERGER, A.J.A.:
I agree, for the reasons given by Nettle, J.A., that the appeal should be allowed and that there should be a new trial before a different judge.
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