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 concerned for professional negligence and alleged breach of the duty of care owed to the patient by performing a procedure which, having regard to the history of back problems since 1991, was negligent.

Factual background

2 The plaintiff, Blagoj Kocev, was born in Macedonia on 4 October 1953 and migrated to Australia in 1987 with his wife and two children. He and his wife now reside at St John’s Park in Sydney. Their children have left home and they presently have a ten-year old granddaughter. On arrival in Australia the plaintiff obtained employment as a kitchen hand for a few months followed by work in an air conditioning factory until he got a job as a stonemason on building sites and then was a machine operator bending and shaping sheet metal. In 1991, however, he started to experience back pain which radiated into the right leg and an x-ray done at The Liverpool Hospital on 14 May 1991 of the lumbo-sacral spine showed “mild narrowing of the L4/5 disc space suggesting early disc degeneration”; there was “no other significant bony nor joint lesion detected.” In the result, Dr Eric Caspary in 1991 performed spinal surgery on the plaintiff by way of a lumbar laminectomy at the L4/5 level with obvious scarring evidencing such surgery. A period of three years rehabilitation then ensued, but during which period the plaintiff did do some casual work, until in 1994 he retuned to full-time employment as a machine operator. Heart problems in 2001 resulted in the plaintiff having two cardiac stents inserted, for which he could not work for four or five months, and he then returned to employment.

3 Back pain seemed never far away from the plaintiff. Clinical notes of his long-standing general practitioner, Dr Ali Sarfraz, disclosed back pain from time-to-time during 1999, 2000 and 2001 and in 2002 Dr Sarfraz referred him to Dr M Sheridan, a neurosurgeon, who saw him on 22 May 2002 due to pain in the back and left leg experienced in the mornings before he got out of bed; after about a quarter of an hour the leg lain reduced but the back pain was ongoing. Dr Sheridan prescribed medication and, as the plaintiff said, “I was medicated for two months and after the medication I started to feel a little better.” Eventually, the plaintiff said the pain stopped. However, and of significance, Dr Sheridan in a report of 5 June 2002 said a CT scan showed an L4/5 disc problem with some nerve root compression which he thought to be the cause of the symptoms. In an earlier CT scan of the lumbar spine on 19 February 2002 at the L4/5 level early changes of acquired canal stenosis were seen with the protrusion slightly more prominent on the left side than the right and some slight thickening of the left-sided L5 nerve root.

4 In March 2003 the plaintiff commenced employment with The Lincoln Electric Company as a machine operator on a press which involved carrying pieces of metal. He said he had no difficulty in doing the job and his back was not a problem until 5 June 2006 when at work lifting a piece of steel to place it on a rack the plaintiff felt a sharp pain in his back. The incident occurred early in the shift and the plaintiff continued working for about three hours but with the back pain was forced to leave work three hours before the normal finishing time. He returned to work the following day even though the back pain, as he said, “was pretty bad…went to the supervisor and advised him that I couldn’t work.” Significantly, the plaintiff had no pain in his legs. On 7 June 2006 he consulted Dr Sarfraz who prescribed pain medication and advised rest for a few days. Still experiencing back pain, the plaintiff retuned to his job at Lincoln Electric and, on reporting the back discomfort to his supervisor, he was referred to the company doctor, Dr Uthum Karunaratne, at WorkCare Medical Pty Limited at Bankstown. Dr Karunaratne prescribed pain medication and certified the plaintiff fit for light duties.

5 However, the plaintiff’s back symptoms continued so that, on 15 June 2006, Dr Karunaratne saw him and undertook an examination, including of the neurological system, with the then plan for the plaintiff to have chiropractic treatment. As it happened, JB Health Care, a chiropractic practice operated by Jimmy Bui, was located in the same building as WorkCare Medical and an arrangement was in place for WorkCare Medical to refer appropriate patients to it for chiropractic treatment. On 15 June 2006, Dr Karunaratne so referred the plaintiff to JB Health Care and accompanied him to see Mr Bui; pursuant to the arrangement the clinical notes of patients were on the same computer system so that both WorkCare Medical and JB Health Care had access to them.

6 It seems that Mr Bui, who was the principal of JB Health Care, treated the plaintiff’s back with heat and soft tissue massage. On 16 June 2006 the plaintiff again presented to JB Health Care and saw a chiropractor, Gerry Toh, who told the plaintiff Mr Bui was not present that day. The plaintiff said, without further conversation with Mr Toh, he was told to lay down on the bed on his stomach and treatment was duly given. After the treatment, the plaintiff said he felt “much better” and “exactly like new” and then drove his car home. However, at home within the hour the plaintiff started to feel pain in his back and severe pain in the left leg; he said he then “went to bed and I couldn’t move. I couldn’t even go to the toilet.” The next day, Dr Sarfraz visited the plaintiff at home and referred him to a neurosurgeon, Dr Simon McKechnie, who examined him on 22 June 2006. In the meantime, on 21 June 2006, the plaintiff had a CT scan of his lumbar spine which showed a left L4/5 disc protrusion compressing the left L5 nerve root.

7 Due to a severe increase in the back and left leg pain, the plaintiff presented himself to the Accident and Emergency Department of Liverpool Hospital on 23 June 2006 and he was admitted and came under the care of Dr McKechnie for bed rest and analgesia. An MRI scan on 27 June 2006 discovered a large left posterolateral L4/5 disc protrusion compressing the L5 nerve root. Although discharged from hospital on 27 June 2006, Dr McKechnie recommended the plaintiff undergo urgent surgery which he performed at Sydney Southwest Private Hospital on 2 August 2006 and reported post-operative recovery as unremarkable.

8 After this surgery, the plaintiff said “my back is better”, other than during cold weather, and he experienced numbness in the left leg from the knee down to the foot but with less pain. In accordance with Dr McKechnie’s recommendation, the plaintiff re-commenced work at Lincoln Electric on 27 November 2006 doing part-time light duties for four hours a day over three days a week with a restriction on lifting more than 5kg and from repetitive bending and standing longer than two hours – the light duties performed involved sitting down and bending wire for other workers to use. Eventually, on 4 July 2007 the plaintiff’s working hours were increased to four hours a day for five days a week but over this period since surgery the same symptoms in the left leg persisted. By 8 August 2007 working hours were increased to five hours a day over five days but with the other restrictions still in place. The working hours were further increased from 25 October 2007 to six hours a day over five days. Due, however, to a significant flare up in pain the plaintiff was certified by Dr McKechnie as unfit for work from 19 to 21 December 2007 and then returned to light duties with a referral from Dr McKechnie to Dr Henry Lam, a pain management specialist.

9 Blood pressure problems then intervened causing the plaintiff’s admission to Liverpool Hospital from 7 May 2008 to 22 May 2008 where he underwent bypass surgery for coronary artery disease resulting in his absence from work until July 2008 when he resumed the former light duties. During those periods, he said the discomfort in his left leg continued and it remained so to the present time. On 13 October 2008, Lincoln Electric terminated the plaintiff’s employment because it was unable to offer him permanent light duties and alternative suitable employment was unavailable. He has not since engaged in gainful employment. His intention was to remain at Lincoln Electric until pension age and was looking forward to being promoted to a leading hand position.

10 The plaintiff’s wife, Dragica Kocev, was engaged in full-time employment as an accounts payable clerk working from 7.30am to 4.00pm daily. The plaintiff worked, prior to the subject injury in June 2006, afternoon shift from 2.00pm to 10.30pm each shift. While Mrs Kocev was at work in the mornings before he started work in the afternoons, the plaintiff was said by Mrs Kocev to perform household duties such as mopping, cleaning, cooking, making beds, gardening, lawn mowing and shopping. For himself, the plaintiff confirmed he did the gardening and lawn mowing, together with maintenance work and painting, and inside the house he cleaned and sometimes cooked; the total time spent on those activities was about five to six hours a week. Now, with his physical disabilities, the plaintiff said his wife does the cleaning, shopping and gardening. Since the June 2006 incident the plaintiff said relations with his wife had become strained to the point of them arguing and ceasing normal marital intimacy.

11 What I think emerges from the background facts, none of which were really in issue, is that from 1991 the plaintiff clearly had a condition in his low lumbar spine susceptible to injury. Indeed, a number of the expert chiropractic and medical witnesses in the case agreed that the condition of the plaintiff’s back before the June 2006 procedure by Mr Toh meant it could have been subject to a disc extrusion from even a very minor and innocuous movement such as coughing, bending, twisting or stretching. What also emerges is that, and despite the 1991 surgery by Dr Caspary being to the right side of the disc at the L4/5 level, CT scans in early and mid-2002 showed left-sided nerve root compression which would cause radiated pain down the left leg rather than the right – that was in fact what developed after June 2006. In fact, in May 2002 the plaintiff complained of left leg pain to Dr Sheridan.

The claim and the defence

12 The plaintiff sued Mr Toh as the first defendant and Mr Bui as the second defendant in negligence for damages for breach of the duty of care each owed to exercise due care and professional skill in treating him. However, on 27 October 2008 the action as between the plaintiff and the second defendant settled and consent orders were made. The proceedings thus continued against the first defendant, Mr Toh, only. It was pleaded that he acted either as an employee of the second defendant or in his own right as a chiropractor qualified to provide such services. In any event, the issue of whether the first defendant was an employee need not be resolved as it was common ground that in providing treatment to the plaintiff he was under a relevant duty of care.

13 The particulars of negligence pleaded by the plaintiff against the first defendant were:

“(a) Failure to warn the Plaintiff and/or adequately warn the Plaintiff of the risk of the Plaintiff suffering increased pain and discomfort and/or further injury, loss and damage due to the treatment, which the Defendant was to provide.

(b) Failure to describe to the Plaintiff the treatment that the Defendant was to carry out upon the Plaintiff in such a way as to then permit the Plaintiff to obtain opinion as to whether or not such treatment was suitable having regard to the Plaintiff’s prior medical condition.

(c) Carrying out a manipulation to the Plaintiff’s lumbar spine after the Plaintiff had undergone spinal surgery.

(d) Using forceful torque manipulation to the Plaintiff’s lumbar spine.

(e) Using high-torque components of manipulation to the Plaintiff’s lumbar spine.

(f) Failure to obtain appropriate radiology of the Plaintiff’s lumbar spine before carrying out forceful torque manipulations or high torque manipulations to the Plaintiff’s lumbar spine.

(g) Failure to have regard to the Plaintiff’s prior medical history before carrying out manipulations to the Plaintiff’s lumbar spine.

(h) Failure to make enquiries as to less forceful treatments that could have been provided to the Plaintiff’s lumbar spine without the increased risk of further injury to the lumbar spine.

(i) Failure to observe scarring to the Plaintiff’s back before performing any form of manipulation or other treatment and/or failure to enquire as to the circumstances of the scarring before performing any manipulation or other treatments.”

14 Damages were sought by the plaintiff from the first defendant in respect of non-economic loss, out-of-pocket expenses, economic loss from wages, loss of superannuation benefits and domestic assistance. The total damages claim for the plaintiff amounted to $534,872.80. Counsel for the plaintiff acknowledged, but without making any concession, that the plaintiff had received payments of workers compensation under the Workers Compensation Act 1987 for weekly payments and medical expenses with the likelihood of such payments continuing into the future. Deductions of such amounts from any award of damages was not the subject of any submission to the contrary which, if effected, would reduce any damages to about $400,000.

15 The injuries allegedly suffered by the plaintiff as a result of the treatment received from the first defendant were aggravating injury to the lower back, radiation of pain into the left leg, psychological injury and weakness in the right leg. Disabilities were claimed to include pain and discomfort in the areas injured, sleeplessness, reduced ability to stand and/or sit, anxiety and frustration, reduced trust of the medical profession and reduced ability to engage in social and/or recreational, work-related and domestic activities.

16 The first defendant admitted he owed the plaintiff a professional duty of care but any negligent breach in his treatment of the plaintiff was denied. The injury, loss and damage as pleaded were not admitted. Also, the defendant relied on a further defence that because the plaintiff suffered a work injury to his back on 5 June 2006 which led to him seeking chiropractic treatment on 16 June 2006, and had received workers compensation benefits since that time, then it was necessary to deduct from any damages obtained in this action amounts to reflect workers compensation already received and likely payments of such in the future: see Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 at 71-72; Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 at 501-509; Transfield Pty Ltd v Mastrioanni (1998) 20 NSWCCR 193 and Rooty Hill Medical Centre v Gunther [2002] NSWCA 60 at [15]-[17]. Although it is plain from those cases that s 151Z(1) of the Workers Compensation Act does not apply to cases such as the present where the work injury itself (that which occurred here on 5 June 2006) was not caused by a person other than the employer, and as was common ground, on ordinary principles there can be no “double counting” of compensation for injury so that deductions were to be made for past benefits received and payments still to be made in the future. As at the date of trial, those payments of workers compensation were $48,780.18 for weekly benefits and $36,295.89 for medical expenses under respectively ss 40 and 60 of the Workers Compensation Act.

17 Further, in any assessment of damages a deduction is to be made, on the case put for the first defendant, on the grounds stated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 644-645 to recognise the pre-existing back problems that were likely to occur in the future even if no injury had been suffered from the chiropractic treatment on 16 June 2006; the Malec v Hutton factor was suggested as a deduction of 50 per cent in respect of the heads of damage for non-economic loss, economic loss, loss of superannuation benefits and domestic assistance.

18 Contributory negligence by the plaintiff in not providing during the treatment given to him a complete and accurate medical history was pleaded by the first defendant. However, the first defendant did not pursue this defence. I would formally dismiss it as I agree the decision not to do so was properly made.

19 The present action falls to be determined by the provisions of the Civil Liability Act 2002 and, in particular, s 5O thereof as to the defence concerning the standard of care for professionals.

Undisputed facts

20 It is convenient before reviewing the evidence to summarise the facts which were not disputed between the parties, qualified where indicated by the first defendant, as follows –

(1) In 1991 the plaintiff underwent lumbar spine surgery by Dr Caspary.

(2) Following that surgery, the plaintiff eventually became symptom-free of right leg pain with only occasional intermittent low back pain but, as the first defendant showed, Dr Caspary on 31 March 1992 reported a lot of right leg pain at the time of review and the plaintiff himself said it took him three years after surgery to return to work.

(3) After a history of pain in the low back and left leg for two months, on 22 May 2002 the plaintiff was referred by Dr Sarfraz to Dr Sheridan who prescribed medication and the pain ceased after two months.

(4) In March 2003 the plaintiff commenced employment full-time at Lincoln Electric as a machine operator on a sheet metal press; he always worked overtime when it was offered.

(5) Two other persons at Lincoln Electric performed similar work to that of the plaintiff, Blagoja Hristovski and Riasad Ali. The first defendant from the wages records pointed out that for the 2005/2006 financial year Mr Hristovski in fact earned 3.21 per cent more than the plaintiff and Mr Ali earned 19 per cent more.

(6) On 5 June 2006 the plaintiff suffered an injury in the course of his work at Lincoln Electric when he was endeavouring to place a piece of metal on a rack; he felt a sharp pain in his back but kept working for a couple of hours and then ceased work early in the shift.

(7) The plaintiff did not experience any pain in his legs from that injury.

(8) The plaintiff first consulted Dr Sarfraz on 7 June 2006 for such injury.

(9)On referral by the employer to WorkCare Medical on 12 June 2006, Dr Karunaratne prescribed pain medication and certified the plaintiff for light duties.

(10) On 15 June 2006 Dr Karunaratne referred the plaintiff to JB Health Care and Mr Bui gave him heat treatment and massage to the back.

(11) On 16 June 2006, but absent any radiating leg pain, the plaintiff attended JB Health Care and saw the first defendant for treatment; he then informed the first defendant he had had previous back surgery which was evident by scarring on his back.

(12) The plaintiff was provided with treatment by the first defendant on 16 June 2006 and within one to one and a half hours developed severe pain in the left leg.

(13) On 19 June 2006 the plaintiff returned to WorkCare Medical and made a complaint to Dr I Khan as to the treatment received from JB Health Care and the fact he had radiating pain into the left leg.

(14) The plaintiff attended Dr Sarfraz and was referred for a CT scan of the lumbar spine on 21 June 2006 and saw Dr McKechnie on 22 June 2006; he was thereafter admitted to hospital and eventually had surgery on 2 August 2006.

(15) The plaintiff returned to work on 27 November 2006 on light duties and gradually increased his working hours.

(16) Apart from a short period in the Liverpool Hospital Cardiac Ward in May 2008, the plaintiff continued the light duty work at Lincoln Electric until his employment was terminated on 13 October 2008.

(17) The plaintiff has not worked since that time.

Issues between the parties on liability

21 Central to the determination of this case is the issue of the nature of the treatment provided on 16 June 2006 by the first defendant to the plaintiff. On the plaintiff’s evidence, it was submitted by his counsel that it involved a rotation of the pelvis to the extent it caused the extrusion of discal material with the consequence that remedial surgery was required on 2 August 2006 and the plaintiff thereby suffered the continuing disabilities of which he complains. Indeed, it was common ground that the plaintiff’s description of the treatment he was given was not a procedure recognised in the chiropractic profession so that if that be the finding then the first defendant was negligent and accordingly liable in damages.

22 In any event, counsel put that if the first defendant’s version of what occurred be accepted then the procedure was still contraindicated because it involved, in the way it was done, rotatory forces to the pelvis which would cause a risk of extrusion of the disc material at the lumbar spine. And that was so as leading to negligence when what occurred was done under circumstances likely to cause injury when the first defendant knew the plaintiff had undergone prior lumbar surgery but without the benefit of any current radiology to inform the condition of the plaintiff’s spine.

23 A very live issue raised by the plaintiff’s counsel was the credibility of the first defendant himself in explaining the treatment he gave due to the unreliability of the clinical notes prepared by him and their “contamination” by the need to correct or add to those notes which, as other witnesses said, was not done in an appropriate manner. Thus, so it was submitted by counsel, the first defendant’s version of the procedure was inaccurate and, at best, an assumption on his part where he had attempted to exculpate himself by adding to his notes in circumstances where he knew he should not have done so.

24 Given, as counsel suggested, that the only question to be addressed was the degree of force applied by the first defendant to the plaintiff’s pelvis during the procedure, it was put:

“Because the Defendant’s evidence cannot be accepted…the Court would find that a rotation force was applied and, consistent with the Plaintiff’s evidence, this resulted in cracking along the Plaintiff’s spine consistent with too great a force being applied in the direction of the bent knee as opposed to towards the foot, which is the intention of the procedure which the Defendant said he was endeavouring to give.”

25 Counsel finally put on the issue of liability that the evidence of the first defendant should be rejected as to what he did and how he did it; indeed, it was submitted he really did not know what happened and there was, at the least, disquiet about his recall of events. The fact was, as counsel said in effect, that the plaintiff’s hip was rotated by a manipulation or adjustment, and not by a gentle stretch of the muscle as the first defendant maintained, which was sufficient to disturb the disc contrary to proper chiropractic practice.

26 For the first defendant, his counsel submitted that “the central factual dispute…is what chiropractic treatment the Defendant provided to the Plaintiff on 16 June 2006.” Counsel outlined the position, by denying the first defendant performed any type of manipulation, by making the following points –

• The first defendant performed a QL stretch, a conservative and gentle form of treatment, aimed at stretching the Plaintiff’s tight muscles and improving the mobility of the back.
• A QL stretch was entirely appropriate treatment in view of the Plaintiff’s history of prior back surgery.
• Even if a high torque manipulation was provided, against what the first defendant said, there was still no breach of duty of care because such treatment in the circumstances would be regarded as safe and appropriate.
• Reliance was placed on s 5O of the Civil Liability Act as a defence for the proposition, irrespective of whether a QL stretch or a high torque manipulation was provided, that such treatment was widely accepted in Australia by peer professional opinion as competent professional practice.

27 Counsel also put in issue the question of whether it was the treatment given on 16 June 2006 which brought about the plaintiff’s disc protrusion as identified by the MRI scan on 27 June 2006 or some other unrelated cause, particularly having in mind the plaintiff’s long-history of back problems. It may be noted in this respect that a QL stretch properly done was a fairly conservative form of treatment.

28 The evidence given by the plaintiff as to what occurred was also put in serious issue by the first defendant’s counsel to the extent that it was “far-fetched in the extreme and incredible…having his left leg suddenly and forcefully jerked or thrust towards his chin or even touching his chin should be rejected out of hand.” Counsel reminded that the plaintiff’s description in that respect was given for the first time in the witness box as none of the experts the plaintiff saw for the purpose of these proceedings recorded such a manoeuvre. There were such marked differences, as it was put, between the plaintiff’s initial evidence as to what occurred and what he later said, both in-chief and in cross-examination, to make his overall evidence “bizarre and contradictory” so that the description of what occurred as a “manipulation” should be treated with great caution. In the result, the submission was that preference should be afforded to the first defendant’s evidence over that of the plaintiff to the effect there was in fact no manipulation and the central piece of treatment provided was a gentle QL stretch.

29 In essence, then, the issue of liability really comes down to the pure question of fact as to the treatment provided by the first defendant to the plaintiff on 16 June 2006. On such a finding being made, one may then apply the views guided by those as stated by the various experts whether such treatment was of a standard as acceptable or competent professional practice or, to the extent then necessary, the defence under s 5O that the treatment was widely accepted as proper professional practice by peer professional opinion: see Dobler v Halverson [2007] NSWCA 335 at [59]-[61] per Giles JA, with whom Ipp and Basten JJA agreed.

Treatment of plaintiff by the first defendant

30 On attending WorkCare Medical for the initial consultation on 15 June 2006 on referral by Lincoln Electric, not it seems as said originally by the plaintiff on 12 June 2006, the plaintiff saw Dr Karunaratne who took a brief history. Included in Dr Karunaratne’s notes on the computer system, to which JB Health Care and hence the first defendant had access, was the plaintiff’s age, occupation as a sheet metal worker, the incident on 5 June 2006 leading to “pain in left lumbar spine lower region after lifting approximately 10kg and twisting”, pain gradually worsening and a past history of “back injury 15 years – disc prolapse on right side – had operation 15 years ago – since then no residual probs” – it would appear that the plaintiff made no mention of his continuing back problems or of the recurrence in May 2002 when he saw Dr Sheridan. On examination, Dr Karunaratne recorded as to the back “pain is localised to the left lumbar paraspinal region, flexion is limited to 45 deg, lateral flexion limited on left side, rotation limited”; a systems review, including neurological, was normal. The treatment plan formulated was for “physiotherapy/chiropractry referral initiated” with anti-inflammatory tablets and heat pads daily to the left lumbar spinal area, work restrictions and oil to be applied to the back. Significantly, however, the plaintiff said the doctor gave him tablets, told him to work on light duties and suggested he should go to a chiropractor for a massage – he denied, contrary to Dr Karunaratne’s notes, that the back pain had worsened since 5 June 2006.

31 The plaintiff, who gave evidence through an interpreter, outlined his visit to Mr Bui on 15 June 2006 as involving a massage to his back for about 10 or 15 minutes but where Mr Bui did not take any details from him about his prior health; the plaintiff could not remember mentioning the earlier surgery in 1991. However, on testing under cross-examination the plaintiff admitted he did not “remember that very well but I don’t think that he did” and Mr Bui “didn’t ask me nothing”; it was possible he told Mr Bui about the previous back injury and surgery but he was not sure. Even so, in the notes taken by Mr Bui it was stated that “Pt repeatedly spoke of previous back injury 10 yrs ago and appears [to] be a part of all his conversation. Too focussed on the negative past???”

32 The next day, 16 June 2006, the plaintiff attended JB Health Care and saw the first defendant. He said he was told Mr Bui was not there but there was no other conversation about his back pain, discomfort or why he was there. He said the first defendant told him to lay on the bed on his stomach and he was given a massage to his back as Mr Bui did the day before. What occurred then was described by the plaintiff in this way:

“Q. Now after he gave you the massage, what happened then?
A. He told me to give him my hand so I could feel the bones on my back.

Q. And did you give him one of your hands?
A. Yes…and he says ‘Do you feel that one side is higher than the other? So I will try and fix it for you’.

Q. And what did you say to that?
A. And then I advised him that I had had a previous operation on my back and that might not be suitable because of my condition.

Q. What did he say to that?
A. ‘Don't worry, nothing will happen’.

Q. What happened to you then?
A. Told me to lie down on my right side and to bend my left leg.

Q. So you lied on the bed on your right side and you bent your left leg in what manner, how did you bend it?
A. I only bent my knee.

Q. So you bent your knee on your left leg; is that right?
A. Yes.

Q. And as far as your left leg was concerned, was it laying on top of your right leg or was it somewhere else?
A. The left leg on top of the right leg.

Q. And with your left knee bent; is that right?
A. Yes.

Q. And what happened then?
A. Then he bent my leg and brought it close to my face, to the beard, and then I felt crackling in my back.

Q. That leg that he brought close to your chin, was that your left leg?
A. Yes.

Q. Do you remember which hand he was holding your left leg with?
A. I'm not sure.

Q. Do you know where his other hand was?
A. With one hand he was holding me at the back.

Q. And you've indicated at the back and you're indicating towards the neck; is that right?
A. Yes. I felt that I was held at the back, but I don't know whether he actually used an arm or the body or his knee.

Q. Was he in front of you or behind you?
A. Back of me.

Q. Now you say he brought your left leg up towards your chin?
A. Yes.

Q. …Did it happen gradually, suddenly, how did it happen?
A. Suddenly.

Q. And when that happened, what did you feel or hear?
A. I felt cracking of my bones.

Q. Which bones?
A. The back.

Q. From how high up to how low down?
A. From the neck down.

Q. How far down did that crack go?
A. …all my back, all my bones.”

33 After the treatment, the plaintiff said he arose from the table and felt “much better.” He then went to his car and drove home. However, at home while sitting on the couch, about 45 minutes since the treatment, the plaintiff said he felt pain in the whole of his left leg; there was pain in the back as well but the leg pain was severe; he said he then went to bed because he “couldn’t move…couldn’t even go to the toilet.” The following day, the plaintiff contacted Dr Sarfraz to visit him at home and, eventually, the CT scan of the lumbar spine was done on 21 June 2006 and the referral to Dr McKechnie on 22 June 2006 who had him admitted to Liverpool Hospital on 23 June 2006 for observation and management of the back and left leg pain; he was discharged from hospital on 27 June 2006. Still under the care of Dr McKechnie, the plaintiff underwent surgery on 2 August 2006. After that surgery he said the leg pain remained but his back was much better.

34 Close testing of the plaintiff’s version of the treatment given to him occurred in cross-examination and a number of disparities arose compared to his evidence-in-chief despite a claim that he had a clear recollection of events and what was said. Those disparities were as follows –

• The plaintiff said on first seeing the first defendant he did not say where his pain was located and was simply told Mr Bui was not there and the first defendant would do the massage; otherwise, there was no conversation about his pain and discomfort or why he was there; and he was told to lie down on the bed on his stomach. However, later the plaintiff admitted there was a conversation between them as to how he was feeling after Mr Bui’s treatment and he told the first defendant he still had pain in the back but he felt “a little bit looser in the back.”
• From first saying Mr Bui on 15 June did not take any history from him of his prior health, the plaintiff conceded “I don’t remember that very well but I don’t think that he did.” Even so, the plaintiff maintained then that Mr Bui “didn’t ask me nothing” and as to the clarity of his recollection, earlier said by him to be clear, he said “eighty per cent…no communication took place.”
• The plaintiff, despite the earlier claim of no conversation with the first defendant, later said he was not sure if the first defendant asked him where his lower back was painful and then added “maybe he asked, I don’t know…it’s quite possible.”
• The plaintiff later conceded “there was some conversation” (with the first defendant) but what the conversation was about he said “I don’t remember.”
• During the procedure as he lay on the table on his right-hand side with the left knee bent, the plaintiff said initially that the first defendant was behind him but later said the first defendant was facing him.
• As to the alleged manoeuvre where the first defendant moved the plaintiff’s left leg, and despite the earlier claim of a clear recollection, the plaintiff admitted “I really don’t know” how long the manoeuvre took” and he agreed he did not have any clear recollection of the time taken.

35 After graduating from the University of Adelaide in 1999 with a Bachelor of Health Science, the first defendant obtained a Master of Chiropracty from Macquarie University, Sydney in 2003 after a three-year course and then commenced practice at the beginning of 2004 as a chiropractor. In doing so, he worked for Mr Bui at the JB Health Care centres at both Cabramatta and the Bankstown premises of WorkCare Medical where the subject incident occurred. It seemed that at the Bankstown location only patients with work injuries were treated and, as the first defendant said, the treatment there was very conservative comprising soft tissue work, heat therapy and ultrasound and, occasionally, some mobilisation and adjustments; for the first defendant at that time at Bankstown, his usual standard practice was to adopt the conservative measures and to do an adjustment or manipulation only infrequently. The first defendant currently resides in Singapore and is 28 years of age.

36 The first defendant described, as I have earlier outlined, the computer system in operation at WorkCare Medical where clinical notes were recorded and available to the various practitioners treating a patient. He said his standard practice in seeing a patient was to review the previous notes, whether from doctors or physiotherapists or chiropractors. Details concerning the plaintiff were on this system.

37 Some recollection remained of the details of the appointment with the plaintiff as the first defendant saw him on 16 June 2006 late in the day as the final patient. He was aware too from Mr Bui later in the week that the plaintiff returned to the practice on Monday 19 June 2006 with severe back and leg pain which was attributed by the plaintiff to the treatment given by him three days earlier. In the result, the first defendant said he was caused then to consider the treatment he had provided and his findings on examination.

38 The actual events of the consultation with the plaintiff were described in this way by the first defendant:

“Friday afternoon. Mr Kocev arrived, I noted he was limping. I then introduced myself. I asked him how the treatment was on the prior day with Mr Bui. He replied along the lines of, feeling a bit better but still in pain… I got Mr Kocev to lie face down. I then went to prepare the heat bag. I then placed the heat bag on Mr Kocev's back for several minutes [to try to relax the muscles]… I went to the computer system and looked at Mr Kocev's file [read notes of Dr Karunaratne and Mr Bui]... I then removed the heat bag from Mr Kocev's lower back. I asked him to point to me where his pain was and he pointed in the region of the left pelvic area, lower back area…There was a horizontal scarring…He actually informed me of his prior low back history [low back surgery]…[decided therefore appropriate treatment was] conservative...[which was ultrasound, heat therapy, massage, stretching mobilisation]…more gentle in terms of the force you use…Then I got Mr Kocev to get up off the table, I asked him to perform some movements for me. He went to bend down, side to side, left and right…standing…I got him to sit down. I performed other tests, cough test…to test for any pathology…negative…Valsalva test…hand on the patient's stomach and ask him to tense and push against it…negative…unlikely disc pathology…[if disc pathology] there will be pain and sometimes even radicular pain down the legs…compression test…press down on the patient's shoulders, again to stress the disc…negative…unlikely disc pathology…[plaintiff presented that day with acute lower back pain]…”

39 The presently relevant events of the treatment were then described by the first defendant as:

“I got Mr Kocev to lie face up…on his back…on the table…I then raised his leg up, right leg up first, and asked him to tell me when he felt the pain…The pain was noted at 45 degrees, and I repeat the same procedure on the left side with fairly similar response…Anything above 45 degrees usually indicates a negative testing…Unlikely nerve root irritation or disc pathology…[plaintiff able to move legs above 45 degrees]…I would have then went on to some palpation examination, so I got him to lie face down and began palpating his lower back spine and pelvis…[during this] he actually again informed me of his prior low back surgery…I told Mr Kocev that his left SI joint was restricted, most likely inflamed as well and that would be the most likely cause of his current low back pain…Then I proceeded to do some soft tissue work, this was massage his lower back muscles for a few minutes, I then prepared the ultrasound therapy…”

40 The critical events which then occurred were put this way by the first defendant:

“After the ultrasound I got Mr Kocev to lie on his side…Right side down facing me…on the examination table…I told Mr Kocev that I wanted to stretch his lower back muscles and mobilise his lower back spine…Because of the tightness around his left QL muscles it was the restriction around that region…So I informed Mr Kocev that if he found any pain let me know and I will stop immediately…I proceeded with putting my left hand on his left front shoulder, flexed his hip, bent his knees…I placed my right forearm on his left buttock region…Then I began to apply some pressure…The left hand is used to stabilise, the primary force will come from my right hand whereby I will pull it down in an inferior to a slightly anterior direction…It would be a slow gradual force…Probably the stretch would be a total of a 20 to 30 second stretch…During the early part of the stretch, it may have been a few seconds, five seconds like that, a small cavitation (a clicking noise from the release of gas) was noted…I asked Mr Kocev how he felt, he said he was okay…I stopped some time, I explained to him, and then after I explained that it was this gas, I continued my stretch [for another 20 seconds]…I asked him whether he was in any pain, he replied no…”

41 Following the stretch the first defendant had the plaintiff lie on his back and the straight leg test was repeated with the result he was able to lift it higher before the onset of pain. Off the table standing, the first defendant observed the plaintiff had some improvement in his range of motions. The first defendant then advised the plaintiff to try to avoid bending or twisting too much but not to just sit around or lie in bed; he was told to “try to move around a bit more.” The plaintiff then left and, as he did so, the first defendant noted he wasn't limping as much.

42 As I have said, the first defendant created notes of his consultation on 16 June 2006 with the plaintiff at some time during the week commencing 19 June 2006. On learning the plaintiff intended to pursue the matter, the first defendant on 15 August 2006 added, but did not change, certain details to the notes. In their original form and with the additions in parentheses, the notes stated:

“ Subjective examination:
Left sided low back pain

Objective examination:
Pt very pain focussed and dwells on previous back operation.

Pain felt around the left SIJ on palpation – still sensitive spasm of left paraspinal and QL muscle.

No associated neuro signs or symptoms--- (ranges of movement added).

Possible…dysfunction/inflammation lumbosacral strain with hypertonicity of left paraspinal and QL muscle.

Treatment:
Heat treatment for 5 mins on paraspinal muscle.

Soft tissue work on left paraspinal and QL muscle.

Ultrasound for 10 mins @ 2.5 intensity around SIJ region [indication and contraindication explained to patient and was given verbal permission to proceed].

Left QL stretch…to encourage flexibility and mobility [informed patient about the procedure and was given verbal consent to go ahead as this position did not aggravate his back pain].

…Pt felt good and was able to get off bench without any pain and ease. [He reports that able to stand/walk better].

…Pt limped when walked into room but walked out without limping.

Plan:
Advise pt to avoid too much bending/twisting movement and try to move around at home not just bed rest.

[Later stage introduce flexibility and mobility exercises and core strengthening exercises].”

43 The clinical notes made by Dr Khan when the plaintiff returned to WorkCare Medical on 19 June 2006, to complain about his condition from the chiropractic treatment, relevantly stated:

“Patient presents with acute lower back pain with radiation to left lower limb. Unable to assume normal sitting position in waiting room.

Patient reports that he had chiro with good effect on Thursday (J. Bui). Returned for chiro on Friday (G Toh) – reports good effect after application of heat pack, massage and subsequent adjustment. Further reports that he returned home and after 1 hour + began to experience acute discomfort to lower back with left sided lower limb pain. Patient attributes this pain to adjustment. I have informed him that this is most unlikely as pain not experienced during or immediately following adjustment. Rather, he reports that post- adjustment he ‘felt like new.’ Pain commenced on arriving home at least 1 hour afterwards.”

44 The first defendant denied that during the consultation with the plaintiff he performed any form of manipulation or adjustment. In so denying such treatment, the first defendant gave this evidence of the plaintiff’s description of the treatment provided:

“Q. You were in court on the first day of the trial and you heard Mr Kocev describe the form of treatment he says you performed?
A. Yes.

Q. You heard him describe you, whether it's you standing in front of him or behind him, putting your hand behind his neck, putting your hand on his leg, and very suddenly and forcefully brining his left knee up towards or even touching his left chin?
A. I did not do such a thing.

Q. So you deny that you performed that treatment on him on 16 June?
A. Yes, correct.

Q. Is that a form of treatment that you recognise as part of chiropracty?
A. No, I was not taught such a treatment or technique like that.

Q. Have you ever heard of it as part of the chiropractor's armoury?
A. No.

Q. Is it something you were ever taught about at university?
A. No.

Q. You've described for us the positioning of your hands on Mr Kocev's body when you were performing the QL stretch?
A. Yes.

Q. So that you had the left hand on the shoulder?
A. Correct.

Q. The right hand on his buttock hip region?
A. Forearm, yes.

Q. …If you were going to do a forceful torque manipulation would your hands be placed in that same position or would it be slightly different?
A. Slightly different.

Q. Where would your hands be placed?
A. If I were to do a torque then I would either place it directly on the lumbar spine which is my primary contact, or then I guess a bit higher up…
...
Q. You've told us that your treatment was aimed at dealing with his tight QL muscles?
A. Correct.”

45 In cross-examination the first defendant was challenged by the suggestion that he had little knowledge of what occurred in the treatment of the plaintiff, particularly having in mind the delayed preparation of the clinical notes and the additions thereto made about two months later, so that his evidence of events was at best an assumption. He was pressed that what he in fact did was an adjustment or manipulation causing a rotation of the spine leading to the disc protrusion or, even on his own version, the procedure still led to a rotation with the same result. Either way, such treatment was contraindicated in light of the plaintiff’s prior surgery and vulnerable back. The first defendant resisted those suggestions.

46 In saying her performed a mobilisation, the conservative QL stretch, the first defendant was referred to the notes made by Dr Khan which referred to the more severe “adjustment”, that is, a manipulation, and he was asked why he did not correct that note when he made the additions two months later. The clear inference by counsel was that in fact the first defendant did not really recall what he did or accepted he performed an adjustment. However, in explanation, the first defendant said, in effect, there was no need to make a correction because his notes clearly stated he did a “QL stretch”; in other words, he did a mobilisation or stretch of the quadratus lumborum (QL) muscle and there was no need to correct Dr Khan’s note, which he could not do anyway, as it was written from what the plaintiff said.

47 As to the treatment given the plaintiff concerning rotational movement of the spine in side posture chiropractic treatments, this evidence emerged from the first defendant:

“Q. You knew that a person who had undergone a prior disc problem, who twisted, or was twisted, suffered the real risk of having further damage done to the disc?
A. There's always a risk, yes I agree with that.

Q. It was quite a large risk when somebody has undergone spinal surgery?
A. The special mobilisation I performed was a very conservative form of treatment and it's used for patients that do have acute or sciatic type pain. So I don't see myself falling short of any type of standards.

Q. Thank you for that. You didn't know the extent of any damage to his disc because you had no radiology, is that right?
A. He had prior lower back surgery or disc pathology.

Q. You had no radiology taken after the prior back surgery, did you?
A. No, I did not.

Q. You knew that what you were doing by placing downward pressure on the buttock area and holding the left shoulder in a static position was twisting part of the spine, weren't you?
A. Again distraction (stretching) was a primary force and there will be some twisting component, yes you are right.

Q. You knew that depending on the force that was put into that twisting movement there was a real risk of injury?
A. Very low.

Q. It was a real risk?
A. Like I said there's always a risk with anything.

Q. I suggest to you that the amount of force you used was such that it caused the plaintiff to end up with left sided sciatic pain?
A. I disagree with that.

Q. Well you know now that within an hour, or a bit longer after your treatment, he had severe left sided sciatic pain, don't you?
A. I know that when he left the treatment room he was feeling better, he was walking better.

Q. I want to suggest to you that probability from your experience would indicate that it was your treatment that caused that sciatica?
A. I disagree with that.”

48 In explanation of treatment by a QL stretch, the first defendant gave this evidence:

“Q. Were you satisfied in Mr Kocev's case that having observed his movements that a QL stretch was appropriate treatment for him?
A. It's very safe, yes.

Q. Can you explain why, by reference to his particular circumstances?
A. Well the stretch is to stretch his tight muscles, to mobilize his spine, to improve mobility, so in effect it should help to reduce his pain, his tightness and allow better movement.

Q. Can you explain why you don't believe it was necessary (to obtain radiology) in his circumstances?
A. …One, he was showing signs of improvement of prior treatment with Mr Bui. Secondly, my treatment was the conservative end. And thirdly, the WorkCare Medical protocol was that the doctors would be in charge of organising the imaging.”

49 Factual finding of the treatment given to the plaintiff: It may immediately be observed that the plaintiff’s version of the treatment provided by the first defendant of having his left leg suddenly and forcefully jerked or thrust upwards towards his chin was not recognised chiropractic treatment. The first defendant himself recognised as much and said “I did not do such a thing”, he was not taught it at university and he had never heard of it as part of chiropractic treatment. On any view of the evidence, including the expert evidence to which I will come, if that indeed was what the first defendant did then I understand it to be common ground that it was negligence as a gross breach of the duty of care as not being competent and professional chiropractic practice. Is that what occurred?

50 I am satisfied the plaintiff was in error in describing the treatment he was given by the first defendant. The plaintiff was not a good narrator of events and, despite his claim to a clear recollection of what occurred, his evidence was vague, uncertain and even contradictory of the events. I have earlier endeavoured to illustrate that by citing relevant pieces of his evidence and will not repeat it. In a very real sense, it seems to me, the plaintiff was fixated on an action of his left leg being suddenly thrust towards his chin, even though he said the first defendant when that occurred was behind him and then that he was facing him, but yet the reasonably expected consequence of such an extreme and sudden move was not evident and where at the end of the treatment the plaintiff felt “like new.” When one thinks about the mechanics of such a manoeuvre as is alleged it may be concluded, if indeed it be possible for the knee to have touched the chin or as the plaintiff said “to the beard”, that it was so fanciful, far-fetched and unknown to chiropracty so as to be mere imagination by the plaintiff. I think the plaintiff reconstructed a scenario of treatment as he saw it in order to explain the pain he later experienced – he thought, I think, that something wrong must have occurred to cause him pain. Indeed, the sudden upward movement of the knee seems to have been stated for the first time by the plaintiff in the witness box as it was not earlier mentioned by him to any of the experts seen for the purposes of this case. The first defendant rejected the occurrence out of hand and I accept his evidence.

51 I have to say I found the first defendant to be an impressive witness. He gave evidence in a frank and matter of fact way without any embellishment or overstatement and not in a manner to best suit his case. For instance, admissions where called for were readily made, such as where he agreed he was wrong in adding to his clinical notes two months after the treatment due to anxiety at the plaintiff pursuing the matter. However, those additions in the overall scheme of the events were not decisive and there were no changes to the original words only additions to the narrative in supplementary respects. So too the first defendant agreed there would be some twisting of the spine in performing a QL stretch with a risk of some injury, albeit as he said very low and where any procedure has a risk. The thrust of the first defendant’s evidence was that he clinically assessed the plaintiff by administering tests and reviewing Mr Bui’s notes, provided conservative treatment of a heat pack, ultrasound and massage and then performed the QL stretch in the manner described to mobilise the tight muscles by making them more flexible. The fact that some of his evidence was given based on his usual practice does not, in my view, diminish the worth of that evidence which is clearly admissible evidence from a professional practitioner: see Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 715 and Morris v Hanley [2003] NSWSC 42 at [70].

52 The suggestion the first defendant performed an adjustment or manipulation I do not consider was made out. He denied doing so and his original notes made after the treatment referred to “still sensitive spasm of left paraspinal and QL muscle” on examination and under treatment given was recorded as “Left QL stretch.” This is entirely consistent with the usual conservative treatment provided at the Bankstown clinic of JB Health Care for work injury cases.

53 I find as a fact that the treatment provided by the first defendant to the plaintiff on 16 June 2006 was a QL stretch, and not a manipulation or adjustment or other manoeuvre, following heat therapy, ultrasound and massage to the lumbar spine.

Expert evidence

54 The parties relied on expert evidence from chiropractors and medical practitioners to support their respective positions. For the plaintiff, there was Associate Professor Rodney Bonello (academic at Macquarie University in chiropractic and with qualifications in science, osteopathy and health administration), Dr Conrad Winer (consultant physician in rehabilitation medicine and musculoskeletal medicine), Dr Richard Walker (orthopaedic surgeon) and Dr Simon McKechnie (neurosurgeon). For the first defendant there was Mr John Kelly (chiropractor, former lecturer in chiropractic at Macquarie University and various professional appointments), Clinical Associate Professor Noel Dan (University of Sydney, Concord Hospital, and a neurosurgeon) and Dr Seamus Dalton (rehabilitation physician). Evidence from the plaintiff’s general practitioner, Dr Sarfraz, was referred to by each party. All practitioners, other than Dr McKechnie and Dr Walker gave oral evidence. Their evidence calls for review based on the finding that the first defendant performed a QL stretch as to whether it was, in the circumstances, contraindicated and not competent professional practice.

55 Associate Professor Bonello: The significant aspect of his report is that it was based, as he said, on the first defendant doing a “lumbar spine manipulation…and, some 90 minutes following the treatment…the onset of left leg pain…up till that point, had not been a feature of…symptoms… .” Associate Professor Bonello stated in his report of 15 June 2008, but not having viewed any radiology of the plaintiff or examined him:

“When considering the rendering of physical treatment such as spinal manipulation, greater care must be taken to ensure that the patient is an appropriate candidate for manipulation. In the absence of a prior spinal surgical history, a chiropractor may use his or her expert experience in determining whether manipulative treatment is an appropriate option. Because spinal surgery has the potential to significantly alter the physical integrity of the spine, a reasonable chiropractor will need to take special steps to ensure that manipulation is relatively safe in such a patient prior to its administration. Such steps may for instance take the form of physical examination provocation testing or medical imaging. The rendering of manipulative therapy on an area of the spine which has had surgery, without the conduct of safety testing or medical imaging, may be regarded as negligent.
...
Virtually all low back spinal manipulation involves forceful torque. Its use, of itself, is not negligent. Excessive use of torque, or other force vector during manipulation may be negligent.
...
If `high-torque' was used in this case, without the prior conduct of safety screening testing, such as force provocation testing, then this would have been negligent considering the Plaintiffs prior surgical history.”

56 In expressing his views about the effects of a manipulation as said to have occurred here, Associate Professor Bonello did so on the basis of Dr Winer’s description of what occurred, that is - “The chiropractor then placed one hand or forearm on Mr Kocev’s shoulder, his other hand on the left leg, and suddenly, forcefully twisted Mr Kocev’s body.” Of course, that action was what the plaintiff described occurred, other than moving the leg to or towards the chin, and Associate Professor Bonello characterised it as a manipulation; it was not, however, and as I have found, as being a QL stretch as described by the first defendant where the force applied is not a sudden, twisting movement of the pelvis and spine but a gradual, gentle motion downwards towards the knees to stretch the QL muscle to make it more flexible and thus aid mobility. And, it is to be added, this was done after the first defendant examined the plaintiff and administered physical testing.

57 In any event, Associate Professor Bonello during his oral evidence-in-chief was asked to assume what occurred was as described by the first defendant and said, in effect, that that would have twisted the pelvis and created pressure or an influence on the lower lumbar spine which may be contraindicated if done forcefully or in a non-specific way. However, in cross-examination he accepted a number of qualifications, as follows –

• Stretching of the QL muscle is a common part of chiropractic treatment.
• A QL stretch is very much at the conservative end of treatment.
• It is a safe approach for patients who tolerate lumbar flexion.
• The degrees of chiropractic treatment from the most conservative end are myofacial techniques (stretching like a QL stretch), mobilisation (forcefully putting movement into a joint) and manipulation (isolating a particular area and applying force like a thrust).
• Those types of treatments are very common forms of chiropractic treatment.
• On the basis of the clinical signs and events as noted by Dr Karunaratne, Mr Bui and the first defendant, specifically as including an instruction to the plaintiff to advise of any pain while the procedure was being performed, a QL stretch would be an appropriate and safe form of treatment and not contraindicated.
• It would not be unusual during a QL stretch, indeed any kind of movement, for a cavitation (cracking sound as nitrogen gas is released from a joint) to occur; a cavitation occurs from one joint (in this case the plaintiff heard one crack); but a manipulation may create several cavitations which would be heard as multiple cracks (not the case here); and it would be an extraordinary movement for cracking to occur from the top of the neck to the bottom of the spine (as the plaintiff alleged occurred).
• It was a widely held view in chiropractic circles (by most chiropractors) that a side posture manipulation was a safe and effective form of treatment even after lumbar disc herniation (or protrusion): see “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; and “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.

58 Mr Kelly: A report from Mr Kelly dated 9 April 2008 dealt with the standard of care provided to the plaintiff by the first defendant on 16 June 2006. He succinctly differentiated a manipulation and a stretch in that the former is “usually applied as a single discreet (sic) thrust applied to a vertebra and is usually associated with a sound (known as joint cavitation) though not always” whereas the latter was “a slow application of pressure in an anatomical plane designed to take the origin and insertion of connective tissue (muscle/ligament) further apart…usually sustained for several seconds and may be repeated on several occasions.” Mr Kelly reviewed the procedure adopted here in a manner consistent with that described by the first defendant and labelled it not as an adjustment or manipulation but as a stretch.

59 Access to the treatment records of WorkCare Medical and JB Health Care, MRI of 13 August 2007 and to the various reports from Dr Winer, Dr McKechnie and Dr Sarfraz was available to Mr Kelly in his review of the background history and treatment of the plaintiff by the first defendant. He concluded in his report:

“The details as I understand them would indicate that Mr Toh has performed an adequate history and examination and has continued with conservative treatment which in this instance was not manipulative in nature. The application of heat, the soft tissue massage, the application of ultrasound and the paraspinal muscle stretching are all mainstream techniques within the Chiropractic profession for managing patients presenting with the symptoms exhibited by Mr Kocev.

Chiropractors commonly see patients presenting with low back pain, both acute and chronic, with and without sciatica (radicular pain into the lower limb). Indeed, low back pain constitutes the presenting symptom of 65% of all patients presenting to chiropractors which is currently estimated at 220,000 consultations per week in Australia.

Mr Kocev has presented with an aggravated disc lesion subsequent to gardening followed by a lifting injury at work in the presence of previous surgery. Despite appropriate conservative measures his condition has continued to decline and has ultimately required additional surgery.

On the basis of the details I have been presented, I am of the opinion that Mr Toh has not fallen short in the standard of care he has provided to Mr Kocev and has acted in a manner that is widely accepted in Australia as competent professional practice.”

60 Mr Kelly expanded on his report as to what a QL stretch was, why it was performed, how it was performed and the circumstances of its use. Specifically, he said there was no expectation that in doing a QL stretch there would be sufficient twisting force to cause disc damage because “the movement that's capable at the lumbar spine is approximately 2 to 3 degrees of rotation at each joint starting from the base of the spine at the sacrum and going up…there's a limitation of how much rotation can actually take place…we have a disc in the front, we have a spinal chord behind and then we have two facet joints sitting behind…those joints guide the movements of the spine and restrict the amounts of motion that can take place.”

61 Mr Kelly was referred to the literature as dealt with earlier by Associate Professor Bonello, literature widely read by chiropractors in Australia, and agreed with the proposition, as accepted by Associate Professor Bonello, that side posture manipulation was widely regarded among chiropractors as safe and effective treatment even after lumbar disc herniation; he agreed it would be all the more so with the more conservative treatment of a QL stretch. As Mr Kelly explained, a manipulation lasts for only part of a second whereas stretching typically took up to 30 or 40 seconds.

62 The relevance of the plaintiff feeling significantly better after the treatment, that is “like new”, in terms of the treatment causing a disc extrusion brought the response from Mr Kelly that “if a patient had had a significant disc injury at the time of treatment they don't report improvement, most would report pain” and he was unaware from the literature or practice of anything to the contrary.

63 Mr Kelly was closely tested on his views. He maintained them, qualified only by the fact that the QL stretch was done correctly.

64 Dr Winer: As stated earlier, Dr Winer from what the plaintiff told him considered the treatment was a manipulation involving a sudden and forceful twisting of the plaintiff’s body in the pelvic area. That, as the facts have been found, was not the case so that Dr Winer’s views in his report must be read down accordingly. Indeed, it should be emphasised that nothing in the first defendant’s evidence, which has been accepted, would support any finding that in performing the QL stretch he applied such force as would bring about significant twisting of the spine. Indeed, an instructive aspect of Dr Winer’s evidence was that during his examination of the plaintiff on 5 July 2007 he had the plaintiff demonstrate the procedure as showing it involved the sudden and forceful twisting but agreed the plaintiff in no way described in evidence a movement where his knee was brought up to his chin. This only confirms that the treatment was not as described by the plaintiff and, most importantly also, that the demonstration to Dr Winer by the plaintiff of a manipulation would be suspect as not having occurred in that way.

65 Another interesting feature of Dr Winer’s evidence as a rehabilitation physician, albeit in musculoskeletal medicine, is that he firmly expressed views, contrary to those of both the chiropractic experts Associate Professor Bonello and Mr Kelly, as to the dangerous effects of chiropractic manipulation. However, again those views related, inconsistently with the facts here, to complications following, as he said, the “use of forceful single thrust techniques designed to produce a ‘click’ or ‘crack’ at a joint…in order to push back into place a ‘subluxed’ joint.” From the chiropractic evidence and the literature I did not understand that to be the intention or nature of such treatment. In any event, that is far from the use, as here, of a gentle and conservative QL stretch to mobilise muscles not by a single, forceful thrust but rather by a slow and controlled downward stretch. It was the sudden and forceful movement which Dr Winer saw as the vice here because, as he concluded, “it was wrong to have used a manipulation in contrast to more gentle mobilising at that second visit.” If, as has been found, the first defendant’s evidence as to the treatment actually given be accepted, as it has, then I would understand Dr Winer’s views to be that such treatment was not contraindicated and was unexceptional.

66 Dr Walker: The plaintiff was examined by Dr Walker on 6 October 2006 from an orthopaedic viewpoint and a history taken, including of the work injury on 5 June 2006 and chiropractic treatment on 16 June 2006 (again referred to as a manipulation). Dr Walker diagnosed an L4/5 disc protrusion with L5 nerve root impingement and radiculopathy. He considered the injury was due to the lifting episode at work and exacerbated by the subsequent chiropractic treatment.

67 Dr Walker did not consider the plaintiff to be fit for his pre-injury duties but only for restricted duties of three to four hours per day over a three-day week. He thought it would require a timeframe of four to six months before the plaintiff was able to return to the pre-injury duties.

68 Dr McKechnie: As the treating neurosurgeon, Dr McKechnie provided a number of reports from 23 June 2006 to 21 October 2008 having first seen the plaintiff on 22 June 2006. He diagnosed, aided by a CT scan on 21 June 2006 and an MRI on 27 June 2006, a left L4/5 disc protrusion compressing the left L5 nerve root. Although in taking a history reference ws made to the chiropractic treatment, Dr McKechnie did not refer to the details of it, other than that it was a manipulation, and did not reason any causative effect of it on the plaintiff’s developed condition. Indeed, as he said, “the patient’s signs and symptoms are consistent with the work related injury…The onset of the pain was related to the injury at work on the 5th June 2006.”

69 In a report of 28 July 2008, Dr McKechnie expressed this opinion for the future:

“In regards to his prognosis, Mr Blagoj Kocev’s symptoms have significantly improved but not resolved following his surgery on the 2nd August 2006. He should continue to take simple analgesics and anti-inflammatories as required. He should also continue with a long-term exercise program. He does not require any further surgical intervention. He may benefit form a review by an accredited pain management specialist and passage through a multidisciplinary pain management program. In my opinion his condition has stabilised and he has reached maximum medical improvement.

In regards to his employment, it is my opinion that at the time of his last review (24 June 2008) he was fit for full-time light duties with a 5kg lifting restriction and a restriction on prolonged standing of over two hours. He is permanently unfit to return to pre-injury duties or any work which involves repetitive bending or heavy lifting….”

70 Associate Professor Dan: From a history given by the plaintiff, Associate Professor Dan understood he was given a manipulation by the first defendant on 16 June 2006. Nevertheless, in a report of 3 December 2008 he commented:

“…it is clear (from Dr Sarfraz’s clinical notes and reports) that the history given to me (by the plaintiff) was inaccurate. Mr Kocev had radiographically demonstrated pathology at L4/5 involving the left side, left sided sciatica, and had sought expert advice from Dr Sheridan in 2002. This not only confirms my previous view that there was pre-existing pathology at L4/5 but also indicates that there was left sided symptomatology due to a disc herniation at least four years prior to the larger sequestration. Noting the contemporaneous history in Dr Sarfraz's records it is clear that lifting at work (as he presumably has done many times over the years) and gardening had led to significant symptoms.

On the available history there does appear to have been a deterioration following manipulation but the further history now available indicates that it was likely that the further protrusion would have occurred inevitably. In that situation the manipulation was merely the ‘final straw’ in a process which had been present in 1991 and 2002 and which came to a climax in 2006.”

71 Specifically, Associate Professor Dan said that the ordinary work duties performed by the plaintiff at Lincoln Electric of standing, lifting and carrying up to 15kg from ground/waist level would “have an adverse impact on the L4/5 disc which was known to be pathological in 1991 and confirmed as such in 2002.”

72 Associate Professor Dan, in oral evidence, agreed with the proposition that rotation forward of the pelvis during chiropractic treatment probably precipitated an extrusion of disc material in the spine but the work incident on 5 June 2006 did involve twisting and weight bearing which were “likely to have been stronger than the forces that could be applied manually and I think that it would be more probable that those forces would damage the disc rather than the manual rotary force that would be applied to his spine.”

73 Dr Dalton: Dr Dalton as a rehabilitation physician specialised in disorders of the lumbar spine and shoulder. He examined the plaintiff on 15 April 2008. Again, from a history given by the plaintiff, Dr Dalton identified the treatment given on 16 June 2006 by the first defendant as a manipulation in which the first defendant “laid him on his right side, grabbed the left side of his body, flexed his hips and back and gave him an adjustment all the way down his spine.” In any case, and given the inaccuracy on the findings made here that a manipulation was given, Dr Dalton was of the opinion that the plaintiff “clearly had a pre-existing degenerative disc disease in the lower lumbar spine prior to the onset of symptoms in June 2006” although it was “certainly possible that he sustained an L4/5 disc protrusion or aggravation of a pre-existing protrusion at that time.” Interestingly in present respects, Dr Dalton expressed the view that the plaintiff “would benefit from an exercise programme emphasizing core stability, lumbar strengthening exercises and carefully directed stretching of his pelvic girdle muscles and hamstrings.”

74 In terms of work capacity, Dr Dalton considered the plaintiff fit for full-time work in a range of light to moderate tasks with stated restrictions so as to avoid rotation or torque and with benefit from an exercise programme. Provided appropriate care with lifting and bending be taken, Dr Dalton considered normal domestic and household tasks to be within his capacity so that there was no need for any assistance arising from the June 2006 injury.

75 The particular impact of any chiropractic treatment received by the plaintiff in June 2006 in light of his pre-existing back condition was considered by Dr Dalton difficult to determine. However, he expressed the view “it is possible that there would have been spontaneous increase in this man’s left-sided sciatica regardless of the chiropractic treatment…it is equally possible that there was a symptomatic aggravation and increase in symptoms as a direct result of the treatment which he underwent at that time.” Even so, and given the good recovery and resolution of the sciatica following the surgery performed by Dr McKechnie on 2 August 2006, Dr Dalton was of the view that “assuming that Mr Kocev had not undergone chiropractic treatment on the 16th June 2006, the end result would have been much as it is now and his back condition would have progressed over time to its current level…the effects of any aggravation of the L4/5 disc protrusion which occurred as a result of treatment that he received on the 16th June 2006 have resolved.” Dr Dalton, significantly, added that “one can only speculate whether or not Mr Kocev’s left-sided sciatica would have deteriorated regardless of the chiropractic treatment…and whether or not he would have ended up undergoing an L4/5 discectomy regardless.”

76 General overview of medical evidence: With the extent of the expert chiropractic and medical evidence it is perhaps difficult to generalise in terms of conclusions, but on any view of the evidence the real cause of the plaintiff’s condition after the 16 June 2006 treatment by the first defendant is, at the least, questionable. Of course, the onus is on the plaintiff to establish that any relevant breach of duty caused the injury of which complaint is made. I will return to this aspect.

77 Otherwise, an important feature is that the witnesses, other than Mr Kelly, all proceeded on the basis, from the history given to them by the plaintiff, that the procedure performed by the first defendant was a manipulation involving a sudden and forceful twist of the plaintiff’s body in the pelvic area and not a QL stretch. On the mechanics of the procedure as stated by the first defendant being put to them as a QL stretch, none of those witnesses, with the possible exception of Dr Winer, said such a procedure was contraindicated. Indeed, Associate Professor Bonello agreed a QL stretch in those circumstances would be an appropriate and safe form of treatment of a conservative nature very common in chiropractic treatment; Dr Winer’s difficulty was the sudden and forceful twist rather than the more gentle mobilising by way of a QL stretch; Dr Walker did not expressly deal with this aspect but attributed the injury to the work incident on 5 June 2006 exacerbated by the chiropractic treatment; Dr McKechnie too did not deal with this aspect and also related the injury to the 5 June 2006 work incident; Associate Professor Dan thought the chiropractic treatment probably precipitated a disc extrusion, although he made no comment on whether a QL stretch was contraindicated but, in any case, the work incident would have applied stronger forces than the QL stretch; and Dr Dalton thought that even absent the chiropractic treatment the result would have been much as it turned out to be but this was speculation.

Liability – whether breach of duty of care and causation

78 Given that the treatment given, as I have found, was a QL stretch as described by the first defendant, the submission by the plaintiff’s counsel was that the rotational force applied to the pelvis caused the injury and the history of pain and discomfort thereafter was consistent with a disc extrusion which required surgery about two months later. The real question, submitted counsel, was the degree of force used by the first defendant in the rotational procedure, as the plaintiff described, excessive so as to cause “cracking” along the spine. Accordingly, breach of the relevant duty of care was established as to the treatment, including from the lack of pre-treatment investigations by the first defendant.

79 Counsel for the first defendant characterised the plaintiff’s case as one reliant on the proposition that the QL stretch was done in an unconventional manner by applying lateral rather than downwards force so as to cause a twisting of the spine. However, that proposition was based on the plaintiff’s description of what occurred, which I have rejected, whereas the first defendant maintained the procedure was done in the conventional manner, albeit he conceded there could have been some twisting in the pelvic area but where the force was gentle and steady with enquiry of the plaintiff of any pain during the procedure. Also, as Mr Kelly said, any movement by way of twisting during a QL stretch would be limited and insufficient to cause disc damage and Associate Professor Dan considered such manual force would be less than that caused by the 5 June 2006 work incident. Even Associate Professor Bonello qualified his views as to the dangers of spinal manipulation, not I emphasise mobilisation, by saying testing should be done beforehand; here, of course, the first defendant did that as to forward flexion testing and the cough, Valsalva and compression tests.

80 In light of the conclusions reached from the overview of the medical evidence, including that the first defendant performed a conventional QL stretch on the plaintiff, I conclude that the first defendant’s treatment of the plaintiff was in accordance with acceptable professional standards of competent chiropractic practice. He did not breach the duty of care owed by him to the plaintiff in the treatment provided. On the basis of the evidence of Mr Kelly and Associate Professor Bonello, I am satisfied that the defence under s 5O of the Civil Liability Act has, in any case, been established. The plaintiff’s claim must therefore fail.

81 As to causation, on the assumption there was some negligence by the first defendant the plaintiff needed to establish that the breach of the duty of care relevantly caused the injury complained about. I do not think in the circumstances of the evidence he has done so. As Ipp JA commented in Flounders v Millar[2007] NSWCA 238 at [35], as relied upon by the first defendant, “if the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail.”

82 There may be no doubt, on any view of the evidence, that the plaintiff had a condition in his back which required surgery by way of a laminectomy in 1991, symptomatology in 2002 with radiated pain into the left leg and further symptoms from the 5 June 2006 work incident – he had a condition in the lumbar spine very vulnerable to further injury and that was so even from minor or innocuous events, such as coughing, bending or twisting, which could cause a disc extrusion. There is nothing in the evidence, in my view, to enable a conclusion that it was the QL stretch rather than some other activity which brought about any disc extrusion, even assuming, which is unlikely to be the case, that prior to the chiropractic treatment the problem did not already exist from the 5 June 2006 work incident. After all, the very reason the plaintiff attended Dr Karunaratne at WorkCare Medical and then the JB Health Care centre was for a persisting lumbar back problem after the work incident. Indeed, following the QL stretch the plaintiff felt “like new”, and it was not for about one hour plus before the back and left leg pain resumed.

83 In the result, I find the first defendant has no liability for the injury and damage alleged by the plaintiff.

Quantum of damages

84 I propose to assess damages in the event my finding on liability in favour of the first defendant be wrong. I will do so as briefly as possible.

85 Workers compensation issues: It was common ground that the plaintiff had been paid past workers compensation benefits of $48,780.18 for weekly payments and $36,295.89 for medical expenses. As to likely future payments, the first defendant relied on evidence from Howard Harrison, a partner in the law firm of Carrroll & O’Dea, and whose necessary expertise to do so was accepted by the plaintiff. Mr Harrison provided two reports dated 8 August 2008 and 29 January 2009 in which he opined that future benefits under ss 66 and 67 of the Workers Compensation Act, respectively for whole person impairment of $17,000 and for pain and suffering of between $10,000 and $15,000, would likely be $30,000 in total and ongoing weekly payments under s 40 of the statute would likely be $139,437.24. There was no challenge to those assessments. Consistent with the earlier cited authorities relied upon by the first defendant, and as to which no contrary submissions were put by the plaintiff, I would propose to make deductions in those amounts calculated by Mr Harrison in quantifying damages.

86 As to past economic loss, Mr Harrison suggested a further deduction of, say, $100 per week to reflect the fact the plaintiff may not have actually received his full s 40 entitlement to weekly benefits. However, this was not a concluded view and the position is that the plaintiff in fact did not receive such an additional amount. I will, therefore, disregard it.

87 Malec v Hutton deduction: The first defendant submitted that on Malec v Hutton grounds it was appropriate to apply to each of the heads of damage a discount of 50 per cent to recognise the chance that even if the plaintiff had not suffered an injury to his back from the chiropractic treatment on 16 June 2006 he would very likely have come to the same or a very similar condition to that he is in now after the surgery by Dr McKechnie on 2 August 2006.

88 In Malec v Hutton (at 645) Deane, Gaudron and McHugh JJ, with whom Brennan and Dawson JJ agreed, said:

“The plaintiff is entitled to damages for pain and suffering on the basis that his neurotic condition is the direct result of the defendant's negligence. Those damages must be reduced, however, to take account of the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar neurotic condition. Likewise, the plaintiff is entitled to compensation for the care and attention provided by his wife. Again that award must be reduced to take account of the chance that factors, unconnected with the defendant's negligence, would have necessitated similar care and attention.”

89 The factors relied on here by the first defendant for such a deduction were the attendances by the plaintiff on Dr Sarfraz between 1999 and 2003 for back problems involving periods of being either unfit for work or fit for light duties only, low back pain radiating into the left leg in 2002 from a disc protrusion at the L4/5 level with nerve root compression, the work injury on 5 June 2006 as causing “pretty bad” back pain and which Dr Karunaratne noted on 15 June 2006 as getting gradually worse and the apparently successful surgery by Dr McKechnie on 2 August 2006 to obviate the radiated left leg pain. As Dr Dalton pointed out, the plaintiff’s low back symptoms now were consistent with chronic mechanical pain indicative of multi-level degenerative changes. Also, Associate Professor Dan considered that the work incident of 5 June 2006 was a more likely cause of the injury than any rotation by the manual therapy on 16 June 2006 by the first defendant. Indeed, Associate Professor Dan considered the nature of the plaintiff’s work of twisting, bending and lifting made it almost inevitable that he would suffer a disc disruption. Further, as has been said, the condition of the plaintiff’s back before the chiropractic treatment was such that the medical evidence was that even a minor or innocuous event could cause a disc extrusion.

90 For the plaintiff, a deduction on Malec v Hutton grounds was not the subject of a contrary submission. I consider it appropriate to apply such a deduction and the only question is in what amount.

91 The 50 per cent suggested by the first defendant was said to be in the circumstances where, on the evidence of Dr Dalton and Associate Professor Dan, it should be significantly higher. I think the arguments put in favour of this deduction are compelling. However, in the circumstances, an amount of 50 per cent is too high. I have in mind the evidence of Dr Dalton that the plaintiff would benefit from an exercise programme and instruction in correct techniques; his cautiousness and reluctance to exercise for fear of further injury could be addressed by appropriate professional encouragement and a pain management regime. It may be accepted, I think, that such treatment would have a benefit for the plaintiff. On balance, I assess an appropriate Malec v Hutton deduction of one-third.

92 Non-economic loss: The first defendant did not dispute, but for the Malec v Hutton discount, that the plaintiff’s assessment of 30 per cent of a most extreme case under s 16 of the Civil Liability Act would be appropriate. By applying a discount of one-third, the result is 20 per cent of a most extreme case, that is, $16,000 being 3.5 per cent of the maximum amount of $450,000 pursuant to s 16(2).

93 Past out-of-pocket expenses: These expenses, in the sum of $36,295.89, have been paid by the workers compensation insurer who advised no repayment would be sought under s 151Z(1) of the Workers Compensation Act. The first defendant pleaded that as a defence so that in consequence there was no loss by the plaintiff and no need for any inclusion of such expenses in an award. I agree. Indeed, the plaintiff conceded this position on such a finding being made.

94 Future out-of-pocket expenses: The first defendant relied on the evidence of Mr Harrison that s 60 of the Workers Compensation Act provides for medical, hospital, rehabilitation expenses and the like and in the future such expenses would be recoverable by the plaintiff. Therefore, there was no need to make provision here for such expenses and there was no suggestion that a finding here of liability against the first defendant would entitle the workers compensation insurer to terminate future payments. The plaintiff repeated the submissions put as to the past expenses. I agree and will not make any provision.

95 Past economic loss: The issue on this aspect of calculating the loss for past wages concerned the net weekly earnings of the plaintiff be reference to what was said to be the earnings of two comparable employees who were also employed by Lincoln Electric as machine operators. For the plaintiff, on figures contained in the evidence, the comparable net weekly earnings rate was said to be $944.50 whereas the first defendant said it was $788 from 2006. The reason for the difference is the higher earnings for the two allegedly comparable employees in the 2005/2006 financial year but those earnings, no doubt because of less overtime, have reduced to between $650 and $700 net per week. I think, as the first defendant suggested, it is reasonable to use an average comparable figure since 2006 of $788. The actual net average weekly earnings of the plaintiff, which were not disputed from his tax returns, for both wages and workers compensation payments were $535 during 2006/2007, $554.40 during 2007/2008 and $512.54 workers compensation after termination of employment on 13 October 2008.

96 Based on those figures, the differences between the comparable figure of $788 and the plaintiff’s actual earnings for the respective periods concerned are $253, $233.60 and $275.46; allowing for the Malec v Hutton discount of one-third the net weekly losses incurred by the plaintiff for the respective periods are $168.67, $155.73 and $183.64. Therefore, past wages loss from 19 June 2006 to date may be calculated as follows –

(a) 19.6.06 to 30.6.07: 54 weeks at $168.67 per week - $9,108.18.

(b) 1.7.07 to 30.6.08: 52 weeks at $155.73 per week - $8,097.96.

(c) 1.7.08 to 13.10.08: 15 weeks at $155.73 per week - $2,335.95.

(d) 14.10.08 to date: 38 weeks at $183.64 per week - $6,978.32.

97 The total past economic loss is thus $26,520.41.

98 Past superannuation loss: Having regard to the approach in Najdovski v Crnojlovic [2008] NSWCA 175 at [53], I would allow for the loss of past superannuation benefits 11 per cent of the net wages loss, that is, $2,917.25.

99 Future economic loss: The plaintiff calculated this element according to a workers compensation entitlement of $324 net per week from Mr Harrison’s evidence for the remainder of his working life giving a loss of $620.50 net per week from the comparable earnings amount of $944.50; after deducting 20 per cent for vicissitudes, the resultant loss is $196,822.60. The first defendant approached the calculation using the comparable net weekly amount, as used earlier, of $788 and applying the Malec v Hutton discount with a consequent deduction of 7.5 per cent for vicissitudes; the resultant amount of this loss is $132,788. The first defendant conceded no residual earning capacity in the future.

100 Consistent with my approach as to past economic loss, I will use the $788 comparable rate reduced by one-third for the Malec v Hutton element and a further reduction of 7.5 per cent for vicissitudes to normal retirement at age 65 years – the resultant net weekly loss is $485.93. On an agreed multiplier of 396.5, future economic loss comes to $192,671.24.

101 Future superannuation loss: Calculated as 11 per cent of the future wages loss, future loss of superannuation benefits is $21,193.84.

102 Past domestic assistance: The first defendant submitted a conservative and cautious approach to the real need for this assistance, particularly having in mind the views expressed by Dr Dalton. For the plaintiff, an amount of 7 hours per week was claimed at an agreed rate of $21.50 per hour less for the period of 13 weeks after the plaintiff’s heart surgery. Even so, the first defendant accepted an assessment of 6 hours per week less the Malec v Hutton discount and a further deduction for the 13-week period. I think this is reasonable.

103 Therefore, past domestic assistance for a period of 6 hours a week at $21.50 per hour is calculated at $18,834 less one-third giving an amount of $12,556.63.

104 Future domestic assistance: The plaintiff sought an allowance for future care on the same basis as in the past; the first defendant similarly approached the matter, except to provide for an additional discount, no doubt for vicissitudes, of 10 per cent. For the future, the hourly rate of $22.62 was agreed as was the multiplier of 822.

105 I will follow my approach as for the past care of 6 hours per week for life, but discounted by 7.5 per cent for vicissitudes, and accepting the rate of $22.62 per hour. The result for this element is $68,799.91.

106 Summary of damages: The damages I would assess are $16,000 for non-economic loss, $26,520.41 for past economic loss, $2,917.25 for past superannuation loss, $192,671.24 for future economic loss, $21,193.84 for future superannuation loss, $12,556.63 for past domestic assistance and $68,799.91 for future domestic assistance – the total damages are $340,659.28.

107 However, as indicated earlier, deductions should be made in respect of likely future workers compensation entitlements according to the report of Mr Harrison. Those amounts are $30,000 for ss 66 and 67 lump sum payments and $139,437.24 for weekly payments in the total amount of $169,437.24.

108 The resultant amount of damages is $171,222.04.

Conclusion and orders

109 The first defendant’s treatment of the plaintiff on 16 June 2006 was in accordance with acceptable standards of competent chiropractic practice. He was not negligent in performing the procedure and is, therefore, entitled to a verdict. In any event, I conclude that the defence has been established that the first defendant acted in a manner widely accepted by peer professional opinion in Australia as competent professional practice in his treatment of the plaintiff. If the first defendant had been found liable then, to the extent it may become relevant, I would assess damages in the amount of $171,222.04.

110 I will hear the parties on costs before making final orders.

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