Kocev v Toh - [2009] NSWDC 169

CITATION: Kocev v Toh [2009] NSWDC 169

HEARING DATE(S): 22-24 and 27-28 April 2009 and 5 June 2009

JUDGMENT DATE:
9 July 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To the extent relevant, if liability in negligence of the first defendant had been found, damages are quantified in amount of $171,222.04. Action settled as between plaintiff and second defendant.

CATCHWORDS: TORTS - Professional negligence - Chiropractor - Treatment by muscle stretch in lumbar spine - Whether a mobilisation or a manipulation (adjustment) - Pre-existing spinal injury - Whether treatment contraindicated - Whether actual treatment peformed negligently - Whether treatment in accordance with acceptable professional standards of competent chiropratic practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Quantification of damages - Effect of prior and likely future payments of workers compensation benefits - Discount to recognise recurrence of prior back problems regardless of chiropractic treatment

LEGISLATION CITED: Civil Liability Act 2002, ss 5O and 16
Workers Compensation Act 1987, ss 40, 60, 66, 67 and 151Z(1)

CASES CITED: Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Dobler v Halverson [2007] NSWCA 335
Flounders v Millar [2007] NSWCA 238
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Morris v Hanley [2003] NSWSC 42
Najdovski v Crnojlovic [2008] NSWCA 175
Rooty Hill Medical Centre v Gunther [2002] NSWCA 60
Transfield Pty Ltd v Mastrioanni (1998) 20 NSWCCR 193

TEXTS CITED: “Lumbar Intervertebral Disc Herniation: Treatment by Rotational Manipulation” (H Kirkaldy-Willis, MD et al), Journal of Manipulative and Physiological Therapeutics Vol 12, No 3, June 1989 at 220
“Side Posture Manipulation for Lumbar Intervertebral Disk Herniation” (H Kirkaldy-Willis, MD et al), Journal of Manipulative and Physiological Therapeutics Vol 16, No 2, February 1993 at 96

PARTIES: Blagoj Kocev - Plaintiff
Gerry Toh - First Defendant
Jimmy Bui t/as JB Health Care - Second Defendant

FILE NUMBER(S): No 5538 of 2007

COUNSEL: Mr KW Andrews for Plaintiff
Mr J Downing for First Defendant
No appearance for Second Defendant

SOLICITORS: McGrath Dicembre & Co for Plaintiff
Guild Legal Limited for First Defendant
Dibbs Abbott Stillman for Second Defendant

JUDGMENT

1 A vulnerable back after lumbar spinal surgery in 1991, continuing but intermittent low back pain thereafter and injury to the back in the course of lifting metal onto a rack at work on 5 June 2006 causing sharp pain led to treatment by a chiropractor on 15 June 2006. Further chiropractic treatment on 16 June 2006 resulted in immediate benefits, but within an hour or so, back pain radiating into the left leg brought the complaint that the later chiropractic treatment was contraindicated and caused injury for which spinal surgery was performed on 2 August 2006. This action was brought against the chiropractor…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kocev v Toh

Details

AGLC: Kocev v Toh [2009] NSWDC 169
Case: [2009] NSWDC 169
Decision Date: 9 July 2009

CaseChat Overview and Summary

The plaintiff, Kocev, brought an action against the first and second defendants, Toh and another, alleging professional negligence on the part of the first defendant, a chiropractor. The plaintiff claimed that the first defendant negligently performed a treatment by muscle stretch in his lumbar spine. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the first defendant performed the treatment negligently, either by performing a mobilisation when a manipulation (adjustment) was required, or by performing the treatment negligently in any event. The plaintiff also argued that the first defendant should have been aware that the treatment was contraindicated due to the plaintiff's pre-existing spinal injury. The first defendant argued that the treatment was not negligent, as it was in accordance with acceptable professional standards of competent chiropractic practice, and that the treatment was widely accepted in Australia by peer professional opinion as competent professional practice. The court found in favour of the first defendant, holding that the treatment was not negligent. The court found that the treatment was a mobilisation, not a manipulation, and that the plaintiff had not established that this was negligent. The court also found that the treatment was not contraindicated by the plaintiff's pre-existing spinal injury, and that the first defendant was not negligent in failing to recognise this. The court further found that the first defendant's treatment was in accordance with acceptable professional standards of competent chiropractic practice, and that the treatment was widely accepted in Australia by peer professional opinion as competent professional practice. The court also found that the plaintiff's damages were quantified in the amount of $171,222.04, and that this amount was to be discounted to recognise the recurrence of prior back problems regardless of the chiropractic treatment. The action was settled as between the plaintiff and the second defendant.

Orders

Orders of the court

Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To the extent relevant, if liability in negligence of the first defendant had been found, damages are quantified in amount of $171,222.04. Action settled as between plaintiff and second defendant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kocev v Toh [2009] NSWDC 169
HEARING DATE(S):	22-24 and 27-28 April 2009 and 5 June 2009
JUDGMENT DATE:	9 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To the extent relevant, if liability in negligence of the first defendant had been found, damages are quantified in amount of $171,222.04. Action settled as between plaintiff and second defendant.
CATCHWORDS:	TORTS - Professional negligence - Chiropractor - Treatment by muscle stretch in lumbar spine - Whether a mobilisation or a manipulation (adjustment) - Pre-existing spinal injury - Whether treatment contraindicated - Whether actual treatment peformed negligently - Whether treatment in accordance with acceptable professional standards of competent chiropratic practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Quantification of damages - Effect of prior and likely future payments of workers compensation benefits - Discount to recognise recurrence of prior back problems regardless of chiropractic treatment
LEGISLATION CITED:	Civil Liability Act 2002, ss 5O and 16 Workers Compensation Act 1987, ss 40, 60, 66, 67 and 151Z(1)
CASES CITED:	Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Dobler v Halverson [2007] NSWCA 335 Flounders v Millar [2007] NSWCA 238 Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Morris v Hanley [2003] NSWSC 42 Najdovski v Crnojlovic [2008] NSWCA 175 Rooty Hill Medical Centre v Gunther [2002] NSWCA 60 Transfield Pty Ltd v Mastrioanni (1998) 20 NSWCCR 193
TEXTS CITED:	“Lumbar Intervertebral Disc Herniation: Treatment by Rotational Manipulation” (H Kirkaldy-Willis, MD et al), Journal of Manipulative and Physiological Therapeutics Vol 12, No 3, June 1989 at 220 “Side Posture Manipulation for Lumbar Intervertebral Disk Herniation” (H Kirkaldy-Willis, MD et al), Journal of Manipulative and Physiological Therapeutics Vol 16, No 2, February 1993 at 96
PARTIES:	Blagoj Kocev - Plaintiff Gerry Toh - First Defendant Jimmy Bui t/as JB Health Care - Second Defendant
FILE NUMBER(S):	No 5538 of 2007
COUNSEL:	Mr KW Andrews for Plaintiff Mr J Downing for First Defendant No appearance for Second Defendant
SOLICITORS:	McGrath Dicembre & Co for Plaintiff Guild Legal Limited for First Defendant Dibbs Abbott Stillman for Second Defendant