Maguire v McGroder - [2001] NSWSC 122

CITATION: Maguire v McGroder [2001] NSWSC 122

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC W 200045/95

HEARING DATE(S): 24/07/00 - 28/07/00, 01/09/00

JUDGMENT DATE:
12 March 2001

PARTIES :

Christopher Maguire (Plaintiff)
Dr G McGroder (First Defendant)
Jonathan Ayscough (Second Defendant)

JUDGMENT OF: Dunford J

COUNSEL : Mr JD Cummins QC / Ms E Kennedy (Plaintiff)
Mr HJ Mater (First Defendant)
Dr IF Butcher (Second Defendant)

SOLICITORS: Kells The Lawyers (Plaintiff)
Louise Margaret Mallon (First Defendant)
Gadens Lawyers (Second Defendant)

CATCHWORDS: PROFESSIONAL NEGLIGENCE - medical practitioner and chiropractor - referral by medical practitioner - treatment by chiropractor - liability of each - DAMAGES - negligent treatment of pre-existing work injury - aggravation of earlier symptoms - allowance for workers compensation payments - assessment of damages

LEGISLATION CITED: Workers Compensation Act 1987, ss 66 and 67

CASES CITED: Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Adams v Ascot Iron Foundry (1968) 72 SR (NSW) 120
Lindeman Ltd v Colvin (1946) 74 CLR 313
Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Fox v Wood (1981) 148 CLR 438

DECISION: Judgment for plaintiff; damages see paras 73 & 75.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Monday, 12 MARCH 2001
W 200045/95
Christopher MAGUIRE v DR G McGRODER & anor
JUDGMENT

1 In these proceedings the plaintiff, Christopher Maguire, claims damages from a medical practitioner, Dr McGroder ("first defendant"), and a chiropractor, Dr Ayscough ("second defendant"), for professional negligence which he claims resulted in the aggravation of his neck and back conditions and the acceleration of his becoming unfit for his employment, and which otherwise affected his everyday activities. The alleged negligence by the first defendant occurred on 18 June 1992 when he referred the plaintiff to the second defendant for treatment, and that of the second defendant on 30 June 1992 when he carried out chiropractic procedures on the plaintiff.

History and Background

2 The plaintiff was born in Liverpool in England on 13 November 1949 so that he was 42 at the time of the consultations complained of and is now aged 51. He went to school in Liverpool until age 15, but is unable to read or write. He commenced part-time employment with a butcher at age 11, and after leaving school obtained employment with a transport company loading trucks at wharfs. After that he became a machine operator in about 1967. He was married on 23 March 1968 in Liverpool and he and his wife have two children, now aged 31 and 23 respectively. In 1968 he commenced work with Nicholas Transport in Liverpool as a driver and continued in that position until he migrated to Australia with his family in 1974.

3 On his arrival he quickly obtained employment as a machine operator with Metal Manufacturers at Port Kembla, operating a wire drawing machine and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Maguire v McGroder

Details

AGLC: Maguire v McGroder [2001] NSWSC 122
Case: [2001] NSWSC 122
Decision Date: 12 March 2001

CaseChat Overview and Summary

The matter before the court involved a claim for professional negligence against a medical practitioner and a chiropractor. The plaintiff, Maguire, alleged that the defendants, McGroder and the chiropractor, were negligent in their treatment of a pre-existing work-related injury. The dispute centred on whether the chiropractor's treatment aggravated Maguire's symptoms and whether the defendants were liable for the damages claimed. The case was heard in the Supreme Court of Victoria.

The primary legal issues that the court had to address were the existence and extent of any negligence on the part of the defendants, and the causation of any damages suffered by the plaintiff. Specifically, the court needed to determine whether the medical practitioner's referral to the chiropractor was negligent, and whether the chiropractor's treatment subsequently provided to Maguire was also negligent. Additionally, the court had to consider whether the treatment by the chiropractor caused or aggravated Maguire's symptoms, and if so, whether the defendants were liable for the damages claimed, including an allowance for workers compensation payments already received by the plaintiff.

The court found that the medical practitioner's referral to the chiropractor was not negligent, as it was reasonable in the circumstances. However, the court held that the chiropractor's treatment of Maguire was negligent, as it did not meet the required standard of care. The court further determined that this negligent treatment caused or aggravated Maguire's symptoms, and that the defendants were therefore liable for the damages claimed. The court assessed the damages, taking into account the workers compensation payments already received by Maguire, and ordered the defendants to pay the plaintiff an amount reflecting the net damages found to have been suffered.

Orders