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Forder v Hutchinson

Forder v Hutchinson

Case [2005] VSCA 281 30 November 2005

Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Forder v Hutchinson [2005] VSCA 281
Case: [2005] VSCA 281
Decision Date: 30 November 2005

CaseChat Overview and Summary

In Forder v Hutchinson, the plaintiff sought compensation for injuries sustained during a spinal manipulation performed by the defendant, an osteopath. The case was heard in the Supreme Court of Queensland and involved an appeal against the trial judge's decision. The plaintiff argued that the defendant's manipulation caused physical injury and that the defendant's standard of care was below that expected of health professionals. The defendant contended that the plaintiff's injuries were not caused by the manipulation and that the standard of care for osteopaths was appropriately lower.

The primary legal issues before the court were whether the professor of chiropractic was qualified to provide expert evidence on the osteopathic use of chiropractic techniques, whether a letter from the defendant to the Chiropractors and Osteopaths Registration Board was privileged under section 32 of the Health Services (Conciliation and Review) Act 1987, and whether the trial judge's findings of fact were adequate. The court had to determine the qualifications of the expert witness, the applicability of privilege to the letter in question, and whether the trial judge's assessment of the witnesses' demeanour was sufficient to establish facts.

The court found that the professor of chiropractic was qualified to provide expert evidence, despite the defendant's objections. The court held that the trial judge's findings of fact were inadequate and that the demeanour of witnesses was not determinative in this case. The court also determined that the letter from the defendant to the registration board was not privileged under the Act. Given these findings, the appellate intervention was justified.

The court ordered a new trial to allow for a more thorough examination of the evidence and a proper determination of the issues at hand. The findings of the previous trial were set aside, and the case was remitted for further proceedings.

Orders