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 remained there for 18 months until he obtained employment with another company at Wollongong, and then in 1976 he commenced employment with the Department of Main Roads as a machine operator, but in 1976 as his wife was homesick the family returned to England. He was unable to obtain employment there so they all returned to Australia the following year and he resumed his position with the Department of Main Roads where he remained until 14 November 1983 when he commenced employment with Commonwealth Industrial Gases Limited now British Oxygen Gases Limited where he remained until his employment was terminated in 1995.

4    He originally drove rigid trucks delivering oxygen bottles, but after a couple of years he commenced driving articulated bulk liquid tankers, and he continued doing such work until the events complained of in these proceedings. In 1984 the plaintiff and his wife bought their home in which they still reside, and apart from the accidents to which I will shortly refer his general health was good. He was in the habit of working 12 hour shifts up to 6 or 7 days a week. He rode his pushbike to and from work, a distance of 18 kilometres each way and he also rode a wave-ski in the surf after work about once or twice a week. He and his wife went on social outings, picnics etc and he also worked around the house doing renovations and painting and attending to the garden. In 1991 he took part in the Sydney to 'Gong Tenth Anniversary Bike Ride, a distance of 92 kilometres.

5    In 1985 he slipped off the fuel tank of a truck and jarred his knees, neck and back. He had a week off work and after that the pain was no problem. In 1997 he was badly shaken around in the cab of his truck on a bumpy road, as a result of which he developed headaches and neck pain. Following this he was referred to Dr Moloney, neurosurgeon, but the problem settled down after a short time.

6    There was another incident on 23 April 1990 when he was driving on Cowpasture Road to Blacktown, and on a right hand bend he hit his head on the roof of the cabin of his truck when going over a bump. As a result of that he grazed his head and forehead, split his lip and loosened 4 teeth. He experienced neck pain, headaches and a tingling sensation in 3 fingers of the left hand. He was referred to Dr Silva, orthopaedic surgeon whom he saw on 24 April and 4 May 1990. The headaches improved but he continued to suffer some discomfort over the nape of the neck and on 4 May 1990 he also reported some low back pain over his left buttock present for the previous 3 or 4 days.

7    On 9 July 1990 he again saw Dr Moloney concerning the exacerbation of his neck pain and the tingling down his left arm and paraesthesia in the medial 3 fingers of his left hand. There was also a reference to low back pain radiating into the left gluteal (buttock) region. It seems that at this stage he was off work for 3 weeks and then resumed his normal duties, continuing to ride his bike to and from work and continuing to wave-ski and with his social activities. It was after this incident that he took part in the Sydney to 'Gong Bike-Ride in November 1991.

8    However, he continued to have the tingling and paraesthesia in his left arm which he described as a "deadening feeling" and at times his arm seemed to lose all power. When he had this feeling whilst driving the truck he was in the habit of grabbing hold of the seat and stretching his neck, which relieved the sensation in his arm after 5 to 10 minutes, and at other times he would rotate his arm which had the effect of bringing the power and feeling back.

9    This continued until June 1992 when he was at the company headquarters at Wetherill Park and the occupational health nurse saw him rotating his arm in this manner and suggested that he should see the company doctor, Dr McGroder. He saw Dr McGroder on 18 June 1992 who referred him to the chiropractor, Dr Ayscough, whom he saw on 30 June 1992. There was considerable dispute at the trial as to what occurred at each of those consultations and I shall refer to them in more detail later. Dr Ayscough referred him for x-rays of his cervical spine and these were done by Dr Dreverman, also on 30 June 1992.

10    After his visit to Dr Ayscough the plaintiff's neck and the left side of his face were very sore and he said that whilst driving home he became aware of pains in his left buttock extending into his left leg. The following day, 1 July, he saw his local practitioner, Dr Gupta, complaining of neck pain and was referred back to Dr Moloney, whom he saw on 25 August 1992. In the mean time he was only able to work half a day on 1 July and after that, although he continued working, he did not ride his bike to or from work because of the pain, and he ceased work altogether on 20 August 1992.

11    When he saw Dr Moloney on 25 August he complained that there had been a flare up in his neck problem over the last several months, that he had seen Dr McGroder and the chiropractor, and that the manipulation had made his neck pain and arm pain a good deal worse. He also complained of low back pain radiating into the buttock and into the thigh on the right side. On examination his cervical spine movements were restricted, particularly to the right side, and an examination of the x-rays revealed narrowing of the C5/6 disc space with marked osteophyte formation and Dr Moloney requested a myelogram. The myelogram and CT scan of 1 September revealed a prominent spondylotic bar formation at C5/6 level with probable early compression of the cord, marked compression of the left C6 nerve root, and to a lesser extent of the right C6 nerve root and with mild encroachment upon the underlying dural sac at that level. On 3 September 1992 Dr Moloney carried out an anterior cervical discectomy and fusion.

12    Following this the plaintiff had hydrotherapy, but after a couple of weeks he developed a skin infection which was very painful and lasted about 4 months. He was reviewed by Dr Moloney in October and on 16 November 1992, at which time he was still getting quite a lot of neck and arm pain and was also complaining of low back and leg pain which he said had come on since the chiropractic manipulation. By 30 November the cervical spine was gradually settling down and a scan showed an effective fusion at C5/6 with no significant abnormality elsewhere, but the plaintiff continued to have ongoing problems with his lumbar spine and leg pain.

13    An MRI scan in December 1992 showed loss of signal intensity in the L4/5 interspace indicating a dysfunctional spinal unit at that level and accordingly Dr Moloney applied a cast to the lumbar spine to effect an external immobilisation. This reduced the pain whilst the cast was in place, but upon removal of the cast the symptoms recurred within a couple of hours, so on 12 February 1993 Dr Moloney carried out an L4/5 spinal posterolateral fusion utilising a Steffee internal fixation, but the fusion was unsuccessful and so a re-exploration was carried out on 2 July and this was associated with a post-surgical infection of a golden staph nature. He was again in hospital in May and June and on 2 July 1993 a further exploration was carried out. He was in and out of hospital and the treatment of the lower back was not successful. He described it as extremely traumatic and depressing and in August 1993 he was seen by Mr Garry Wenzel, a psychologist, to treat the depression. On 5 July 1994 he had a further lumbar myelogram and on 15 July 1994 an epidural injection which did not help. He was reviewed on 20 July 1994 by Dr Moloney who expressed the opinion that no further treatment would assist, and that the plaintiff was permanently unfit for work.

14    The plaintiff continued to suffer pain, particularly in his lower back and a number of investigations were undertaken. A bone study on 17 May 1995 showed facet joint arthritis at L3/4 on the left side, a Whole Body Bone Study by Dr Lyons of Illawarra Nuclear Imaging on 8 March 1996 showed that the L4/5 graft appeared normal with no evidence of fracture or pseudarthrosis or of active facet joint arthritis. The cervical spine fusions also appeared stable.

15    In early February 2000 the plaintiff's back symptoms deteriorated, an MRI scan on 14 February 2000 revealed bulging at L4/5 with a small annular tear while a Bone Study on 21 February indicated a fracture of the L4/5 bone graft and minor facet joint changes at the L3/4 and L5/S1 levels.

16    He was admitted to Illawarra Hospital on 24 March 2000. Dr Moloney carried out a complete disectomy and graft refurbishment at the L4/5 interspace.

17    Following this the plaintiff continues to have neck pains, headaches, left arm and lower lumbar back pains, and the pain in his lower back and left leg is continuous.

18    He can no longer ride his bicycle, walk more than about 5 kilometres, or sit in low chairs and he has to use a cushion to straighten his leg. He cannot touch his toes, put on shoes, socks or pants without assistance, he cannot do maintenance around the home, garden, drive for long periods and sexual relations with his wife have ceased. He is constantly in pain and he is continuing to take medication for pain. He is able to mow the lawn and use the whipper snipper if somebody else starts these machines for him. He can only travel about 50 kilometres in the car before he suffers pain and has to stop. His employment was terminated by his employer on 8 March 1995, although he has not worked since 20 August 1992, and I am satisfied that having regard to the nature of his injuries and continuing pain and disabilities, his age, illiteracy and lack of training he will remain totally and permanently unemployable.

19    A number of factual issues emerged in the case, namely whether the plaintiff had lower back pain prior to seeing the defendants in June 1992, if so, whether there was an increase in such pain with extension into his left buttock shortly after the manipulation or whether that only occurred some 6 or 8 weeks later, and precisely what occurred at the consultations with both Dr McGroder and Dr Ayscough.

20    Overall I found the plaintiff and his wife impressive witnesses and I am satisfied that they were endeavouring to tell the truth as best they could recall it. The plaintiff being unable to read or write, was at a considerable disadvantage because he could not refer to notes or records to assist his memory, but although he was prepared to make concessions on some matters, e.g. the pre-manipulation examination by Dr Ayscough, there were other matters on which he was adamant, e.g. the nature of the manipulations and whether there was any physical examination by Dr McGroder. He did not impress me as a person who was attempting to exaggerate his symptoms in any way; indeed it would be almost impossible to exaggerate his symptoms because the uncontradicted evidence is that his spine, particularly his lumbar spine, is now a wreck.

21    There was one stage in his evidence when he tried to correct what he had previously said but later retracted the correction, and I got the impression that by the third day of his giving evidence he was tending to agree with the cross-examiner for the sake of agreeing so as to get the matter over and done with, and ultimately at T 166 the plaintiff became distressed and I found it necessary to stand him down for a time and interpose another witness. In addition, his lack of sophistication and education is such that I consider it unlikely that he would be capable of fabricating a description of the manipulations as he described them if he had not actually experienced them; and I do not regard it as insignificant that, according to his wife, who also impressed me as an honest witness, the descriptions he gave to her on the afternoon of the manipulations coincided with the descriptions he ultimately gave in court.

22    On the other hand, there were some discrepancies in the records kept by the two defendants, they appeared to contradict each other as to conversations between them immediately following the plaintiff's visit to the second defendant, the letter written by the second defendant to the first defendant dated 10 December 1992 (Ex. J) is in some respects inconsistent with his evidence in this court (particularly as to whether he manipulated or adjusted the lumbar spine), and the letter written by the first defendant to his employer (addressed to C Waters) dated 23 December 1992 (Ex. N) apparently following receipt of Dr Ayscough's letter is hardly consistent with what Dr Ayscough had told him in the earlier letter, particularly as to whether the consultation had resulted in an assessment or a treatment.

23    There were further conflicts between the evidence of Drs McGroder and Ayscough. The plaintiff said he went back the following day (1 July), and told Dr McGroder that because of the pain that had been caused by the manipulations he was not going back to the chiropractor anymore. He certainly did not go back. Dr McGroder denies that this meeting took place, but recalls a later conversation and made a note on Ex. K apparently dated 30 July 1992, although the date is not clear, to the effect that the plaintiff only had one chiropractic treatment and felt worse and the note goes on, "Couldn't follow up for logistic reasons. Saw his GP in W'Gong & referred back to Dr P Moloney". But Dr McGroder said that he followed up the plaintiff's treatment a few days later by telephoning Dr Ayscough which Dr Ayscough denies or at least cannot recall.

The plaintiff's lower back

24    There are a number of indications that the plaintiff did suffer low back pain and pain radiating into the buttocks prior to the consultations in June 1992, apart from the plaintiff's evidence at T 12 and the history he gave to Dr Bornstein when he first saw him (report of 10 October 1994). There are references to low back pain in Dr Jones' referral of the plaintiff to Dr Moloney dated 26 June 1990 (Ex. 6), Dr Silva's letter to the plaintiff's employer dated 4 May 1990, in Dr Moloney's report of 9 July 1990 and the oral evidence of Dr Moloney at T 116-117. It would seem that the low back pain, although present, was not the major problem in the period leading up to 30 June 1992, and the plaintiff's evidence in this regard is supported by the fact that on any view of the matter the referral by Dr McGroder to Dr Ayscough was in terms only for the neck; and when Dr Ayscough referred the plaintiff for x-rays that day he only did so for the cervical spine (see Dr Dreverman's report).

25    The increase in pain in the low back with referred pain in the left buttock promptly after the manipulation depends largely on the evidence of the plaintiff and what his wife says he reported to her. When he contacted Dr Gupta, the following day (as I am satisfied he did as a result of the Medicare schedule) it appears to have only been for neck pain because the referral from Dr Gupta to Dr Moloney of 24 August is only for neck pain; but the plaintiff says that it was following the manipulation that he ceased riding his bike, and in his report of 3 September 1992 relating to the consultation on 25 August Dr Moloney specifically refers to the plaintiff then complaining of low back pain radiating into the buttock and into the thigh on the right side. The doctor requested a lumbar myelography and in his letter to Dr Gupta of 16 November 1992 he refers to the plaintiff complaining of low back and leg pain which had come on since the chiropractic manipulation. On 7 October 1994 the plaintiff told Dr Bornstein that the chiropractor precipitated symptoms in the lumbar spine and then to the leg.

26    It seems to me that following the manipulations he did have an increase in pain both in the neck and the lumbar spine, but in the immediate period the neck was the more significant and therefore the neck received more attention while the low back was considered secondary, although because of the unsuccessful fusions, it has since become the major problem. I am satisfied that following the manipulations the lower back pain was increased and it included referred pain into the left buttock which, although previously present in 1990, had not been present for some time.

Consultation with Dr McGroder

27    The plaintiff said (T 13-17) that the occupational health nurse, introduced him to Dr McGroder and said, "he is having trouble with his left arm due to the accident." Dr McGroder asked him what his problems were and he said, "I'm having neck pains, headaches, a deadened sensation in my left arm into my three fingers", to which Dr McGroder replied, "I'll send you to a chiropractor, only I don't know one in Wollongong, but I have a friend who practices in Liverpool, but I don't know where his practice was [sic]". So after looking up the phone book he telephoned the chiropractor and said, "I've got a driver here called Mr Maguire who has had an accident and bumped his head and was [sic] getting neck pain, headaches and pain down his left arm. Could you see him?" He then put the phone down and wrote out a referral note which he gave to the plaintiff. He said that the first defendant did not appear to have any papers on the desk in front of him, he could not remember whether he was writing anything down, but that he certainly did not examine him in any way such as by turning his head or neck, having him lift up his arms or anything of that nature, and he denied that Dr McGroder told him to take his x-rays with him. The referral note was as follows:

"Thank you for seeing Chris. He injured his neck (along with 4 teeth) on 23.4.90 when he hit his head on the top of his truck. He has had pains radiating into the arms but no neurological deficit. He should have x-rays by then. Hope you can help."

28    Dr McGroder on the other hand (at T 227-230) said that the plaintiff gave him a history of injuries to the neck and arm present for a long time but more recently exacerbated by the accident in his truck. He said he then went through his symptoms and performed an examination mainly for muscle wasting, muscle weakness or loss of reflexes and testing the range of movement in the neck, shoulders and limbs, and he said he would have palpitated the area mainly around the neck to see if there was any tenderness or any palpatable abnormality. He was aware that the plaintiff had seen Dr Moloney and said that he had the plaintiff's employer's complete medical file available to him (except the CT or x-ray films in respect of which he would only have had reports), but he did not say which, if any, part of such file he referred to on that day. The plaintiff told him that he had had physiotherapy which if anything had made him worse and that nothing was helping, so he brought up the fact that there were other forms of treatment available, including a chiropractor and he told him to take his x-rays with him when he went to the chiropractor. Besides writing the referral, Dr McGroder also made a note (see Ex. K) dated 18/06/92 as follows:

"History of neck pain and brachalgia aggravated in incident April when hit head on roof of truck breaking 4 teeth. Has seen neurologist (Dr Moloney). No specific Rx. Physio no help. -> Jonathan Ayscough (take x-rays)."

29    In relation to this consultation I am satisfied that the doctor did not carry out a physical examination of the plaintiff. Although he had access to medical records I consider it is probable that he did not refer to them, in particular if he had, I would expect that those records would have included the x-ray report from Dr Ho dated 23/04/90 showing reduction of the C5/6 disc space with some osteopaedic impingement at the C5/6 foramen bilaterally, and although he refers to "no neurological deficit" in his letter of referral, there is no reference to any physical examination in his clinical note of the same date. This I find very surprising and, as 2 weeks later Dr Ayscough recorded a mildly reduced right C5 deep tendon reflex, I am surprised that if he did test the reflexes he did not make a similar finding. The doctor drew a distinction between neurological symptoms and neurological signs which I found unconvincing. I have already referred to some of the difficulties in Dr McGroder's evidence relating to what happened later, and overall I am satisfied that the plaintiff's version of what occurred at the consultation is substantially correct.

30    Because I accept the plaintiff as a truthful and essentially reliable witness corroborated by his wife and because of the inconsistencies in the defendants' accounts, I am satisfied that events occurred as described by the plaintiff and that Dr McGroder did not examine him and did not examine his medical files or reports before referring him to the chiropractor.

31    The uncontradicted evidence, however, is that the plaintiff did not refer to lumbar pain when he saw Dr McGroder. The nurse referred him to the doctor because of problems with his left arm which were associated with his neck symptoms and that appears to have been all that was discussed between him and the doctor, and the referral only relates to neck pains radiating into his arms with no reference to back or lumbar symptoms.

Consultation with Dr Ayscough

32    On 30 June the plaintiff saw Dr Ayscough. He said Dr Ayscough read the referral letter and then proceeded to ask him a number of questions about the accident in April 1990. He told him that he was experiencing neck pains, headaches, left arm pain into the fingers and pain in the left buttock going down into the left leg, although at T 25 there was some confusion as to whether he told him about the lower back pain on that occasion, compare T 19. He said that Dr Ayscough then examined him and asked him to move his neck to the left and right, to lean to both sides and then lift his legs up, after which he ran a wheel up each arm. They then went into another room where he was told to sit on a bench.

33    He said Dr Ayscough then put both hands on his face while they were facing each other, his right hand on the upper left side of the plaintiff's face around the knuckle joint and his left hand lower on the right side of the witness' face towards the lower jaw or the chin. He told him to "relax", and he then "violently" took the plaintiff's head to the left side of his shoulder resulting in a cracking noise and pain radiating up the left side of his face. The plaintiff said he had no expectation that this was going to happen and that he was not relaxed when the movement was performed. After the cracking the plaintiff told the second defendant that he had "broken me blooming neck", to which the second defendant grinned (T 22).

34    He said Dr Ayscough then told him to place his hands behind his head while he placed himself behind the plaintiff, placed a rolled up towel in the centre of the plaintiff's back, putting his knee on the towel, interlocking his hands through the plaintiff's and holding the plaintiff's head in position and pushing forward with the knee making a cracking noise. He said he did this twice, once in the centre of the back and a second time in the lumbar area. After doing these manipulations he told the plaintiff to go next door to get some x-rays and to make another appointment. The plaintiff went next door and x-rays were done only of the cervical spine.

35    The second defendant described in detail the history he took from the plaintiff and also his physical examination by reference to Exhibit X1. What is significant is that in the box "Specific MP/Static", he has written "L5/S1 - T4/5 - C5/6 (L)(?)" which he explained (at T 274) meant that upon his examination there was joint restriction at L5/S1 and T4/5 and T6, tenderness at the left. In the box "DTR" he wrote "C5 20%" which he said indicated that he elicited a reduction of deep tendon reflexes at C5 of about 20%; and he agreed (at T 302) that his provisional diagnosis for the cervical spine was nerve root irritation of the facet joint.

36    He described his usual procedure for making adjustments (commencing at T 285) and admitted he did not have clear recollection of this particular consultation. He said that he lays the patient on his back with his head on a pillow, places his right hand on the patient's right cheek to support the head, that using his left hand as the adjusting hand, he places his index finger over the joint to be adjusted, the thumb on the cheek bone, and he applies force to the right so that the joint moves less than an inch and there is a popping sound.

37    He then went on to describe an adjustment at T4/5 level. He said the patient sits on the couch facing away from him, he uses a rolled up towel and places his sternum against it with his knees bent. The patient then interlocks his fingers behind his neck avoiding a lot of flexion. He pops his hands through this and then puts pressure on the towel through his sternum onto the joint he wishes to adjust. He then asks the patient to slowly breathe in and out, and when they breathe out he straightens his knees so they move in an upward position and his legs straighten so that there is movement of the joint upwards, but very little (T 288-9). He never uses his knees when doing an adjustment. He said he did no lumbar adjustment on the plaintiff.

38    I have difficulties about the second defendant's evidence. Firstly, as I have already said, I do not see how the plaintiff could have made up a description of manipulations such as he gave if he had not actually experienced them. Dr Ayscough was insistent that he did not carry out any manipulation or adjustment to the lumbar spine but when he wrote to Dr McGroder on 10 December 1992 (Ex. J) apparently after Dr McGroder had asked for a report because it was being suggested that the manipulation had been done wrongly, he said in his letter, "Examination revealed spinal joint restrictions at C5/6 left, T5/5(sic) and left L5/S1", and he went on to express the opinion at the foot of the first page that, "the left L5/S1 joint restriction possibly arose from a combination of prolonged sitting, due to the nature of his job and accumulated low grade degenerative changes of an age related nature." Then he said, "Treatment at the time of consultation, following a vertebral artery test that was normal, involved paraspinal muscle massage using a massaging machine and spinal adjustments to C5/6 left, T4/5, L5/S1 left" (my underlining).

39    In evidence he said this was incorrect, that he had not carried out any adjustments at the L5/S1 and that the letter was written "with a rush of blood to the head;" but as queries had been raised about the manner of treatment one would expect he would be particularly careful in describing the treatment, and would not assert he had carried out treatments which he had not done. Unfortunately the second sheet of paper forming part of Exhibit X1 which provides a column to describe the treatment is blank. Notwithstanding the second defendant's evidence, in the light of his letter written when his treatment was being called into question, I cannot accept that he did not carry out a manipulation of the lumbar spine, particularly in the light of the plaintiff's assertion that he did, and I am also satisfied that he carried out his various manipulations substantially in the manner in which the plaintiff described.

40    I am also satisfied that it was because he felt worse that the plaintiff did not return for further chiropractic treatment, and the suggestion that he had difficulty parking his truck and could not get time off work is inconsistent with the evidence that he had a good employer who would provide taxi vouchers and he was able to park his truck in Liverpool on the first occasion.

41    I am also satisfied that neither defendant warned the plaintiff that the chiropractic manipulations or adjustments could render his condition worse, they do not assert that they did, although Dr Ayscough may have given some warning about the risk of a clot developing in an artery leading to a stroke-like episode.

Liability of Dr Ayscough

42    Both Dr Ayscough and his expert chiropractic witness, Dr Kelly, conceded that if the manipulations of the neck and/or the back were carried out as described by the plaintiff they were not carried out in accordance with proper chiropractic practice. For reasons already given I accept the plaintiff's version of how the manipulations were carried out and accordingly find that the second defendant was negligent in his treatment of the plaintiff and that such negligence caused a flare-up or exacerbation of the condition of the plaintiff's cervical spine which brought him to a cervical disectomy and fusion on 3 September 1992. Following that he had some initial problems with the hydrotherapy but since the end of 1992 there has been some improvement but he still has pain in the neck and left arm though it is not as bad as previously and he no longer has the deadening feeling in his left arm.

43    I am also satisfied that the chiropractic treatment renewed and exacerbated the symptoms in his lumbar spine and right leg. Apart from his complaint to his wife on the day he saw the second defendant, he complained of his back to Dr Moloney on 25 August and 16 November 1992, on which latter date Dr Moloney reported to Dr Gupta that he would follow up his back problem after sorting out his neck.

44    At one stage Dr Moloney expressed the view that the lower back symptoms were not due to the manipulation, but at that stage he did not understand there had been a manipulation of the lumbar spine (T 109), and when the plaintiff's description was put to him he agreed the manipulation was the likely cause of the flare-up (T 111-12). On the basis of the plaintiff's history, Drs Bornstein and Middleton also attributed the exacerbation of lumbar symptoms to the manipulation.

45    These symptoms worsened and led to the surgery, plaster cast and successive fusions which I have already detailed and to his present level of pain and invalidity, summarised at para [18] above. The plaintiff said that the pain emanating to his lower back is worse than the pain emanating from his neck and the restrictions on his current activities likewise appear to be predominantly related to his lower back symptoms. He is and has been since the end of August 1992 unfit for his employment as a truck driver or any other form of gainful employment.

46    It is however necessary to have regard to the plaintiff's pre-existing condition to determine the extent of the exacerbation. The plaintiff had a deteriorating neck and back, due mainly to his occupation as a truck driver and the injuries he had suffered in the course of such employment. For this reason Drs Moloney and Bornstein agreed that he would probably have come to spinal surgery at some time and it would seem that such spinal surgery (particularly to the lumbar spine) would have effectively terminated the plaintiff's career as a truck driver.

47    Dr Moloney, although reluctant to put a time frame on it said (T 138) that as a good surgeon he would hope to do it later rather than sooner, but when pressed in cross-examination said (T 152):

"Some time sooner or later, within five years. His back was pretty bad. You know, I,-- yes, I think that it would be fair to say he would have come to surgical intervention with his back probably within five years, around about maybe, for the sake of putting a number on it."

He had previously given a similar estimate in respect of the neck.

48    Dr Bornstein agreed that further deterioration of the plaintiff's back was to be expected and that he would ultimately come to spinal surgery and be capable of only minimal sedentary type tasks, but said he could not put a time frame on it as there was no uniform rate of deterioration or mathematical formula and a lot depended on the individual's grit and capacity to put up with discomfort.

49    The evidence is rather vague and involves a degree of speculation. I do not regard Dr Moloney's reference to 5 years as conclusive as he gave that figure only when pressed "for the sake of putting a number on it". In all the circumstances of the plaintiff's background, work history, enthusiasm for his job, his active lifestyle notwithstanding his pre-chiropractic condition, and Dr Moloney's description of him as a "tenacious little bugger", I feel the probabilities are that he would have kept going as long as possible, probably more than 5 years but not more than 10 years, by which time he would have been aged 52 years, and at that stage he would have come to the end of his working life as a truck driver. In addition he has suffered increased pain and disabilities over that period, but there is no evidence that in the absence of the manipulations his ongoing pain and restrictions for the rest of his life would be as bad as they are now, although clearly absent the manipulations the plaintiff would have had some continuing pain and restrictions in any event. As Dr Bornstein said (report of 16 June 1999) while he would have become limited and disabled without the manipulations, it is hardly likely that without them he would have reached his current state of "basically a spinal cripple".

50    For theses reasons I am satisfied that the second defendant is liable to the plaintiff for the aggravation and acceleration of both neck and back symptoms for a period of ten years, for loss of earnings and for domestic services during the same period, and for something for the additional continuing pain and disabilities.

51    In the light of these findings it is not necessary to consider the plaintiff's allegation of failure to warn in respect of the second defendant.

Liability of Dr McGroder

52    As previously noted the plaintiff only consulted Dr McGroder in respect of his neck and the referral by Dr McGroder to the second defendant related only to the neck. It follows that Dr McGroder cannot be held liable of any damage or consequences relating to the plaintiff's lower back.

53    In relation to the neck, I am satisfied that he did not physically examine the plaintiff, he either did not look at the plaintiff's medical records in any detail, or if he did, he failed to have regard to Dr Moloney's previous reports which referred to the left sided brachialgia with radiating pain in his arm or to Dr Ho's x-ray report of 23 April 1990 which reported osteophytic impingement at the C5/6 forarnuma bilaterally which, along with the numbness in his arm and pins and needles in his fingers, indicated nerve root irritation in his cervical spine (T 103-4) a finding provisionally confirmed by Dr Ayscough when he saw him (T 302).

54    I accept the opinion of Drs Moloney and Bornstein that in those circumstances it was not acceptable medical practice to refer the plaintiff to a chiropractor. I reject the first defendant's submission that he was not necessarily referred for treatment. Unlike consultant physicians and other medical specialists, chiropractors are not in the habit of giving opinions but of giving treatment, and I am satisfied that was the purpose of Dr McGroder's referral.

55    Although I am satisfied that Dr McGroder did not give any warning, I am not satisfied that the plaintiff would have declined treatment if a warning had been given - he said he was prepared to try anything.

56    The first defendant is therefore liable for consequences of aggravation of neck injury for up to 10 years, but I am also satisfied that the major part of his pain and restrictions is due to the symptoms of his lumbar spine.

Damages - workers compensation

57    Before proceeding to a detailed assessment of damages, it is necessary to refer to the fact that the plaintiff has been receiving workers compensation payments as a result of his work related injuries since he ceased work on or about 23 August 1992 following the chiropractic treatment. Such payments up to 15 March 2000 are set out in Ex. L, and include weekly compensation payments, medical and similar expenses and a consent award under the Workers Compensation Act 1987 ("the Act") ss 66 and 67 of $75,000 (Ex. 10). This award was made in respect of injuries from 1 January 1985 including specific injuries on 15 August 1987 and 23 April 1990 (Ex. 9).

58    Section 151Z of the Act contains a number of provisions against double compensation "if the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury", but the plaintiff's injuries in this case in respect of which he has received compensation (cervical and lumbar injuries) were not caused by the present defendants but by his employment. Accordingly the section does not apply, but the general common law principle against double compensation does: Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60.

59    That case bore a number of similarities to the present in that the plaintiff having been injured at work sustained further injuries and disabilities as a result of medical treatment reasonably undertaken to alleviate the original injury but negligently performed, resulting in quite severe injuries and disabilities of a different and much more serious nature. In proceedings against the negligent doctor who carried out the subsequent treatment it was held that s 64 (the 1926 equivalent of s 151Z) had no application, but that the common law principle against double compensation meant that compensation payments had to be taken into account in the assessment of damages. That and other cases involving the liability of separate tortfeasors where compensation has been paid by an employer were recently reviewed and approved in Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249.

60    Unlike in Hood Constructions the employer is not a party to the present proceedings and so I cannot, as was done in that case, make a declaration binding on the employer (or its insurance company), but I do not accept the position set out in the employer's letter of 7 June 2000, and my assessment of damages proceeds on the basis that no part of the compensation paid to date is liable to be refunded to the employer and that it remains liable to pay weekly compensation in accordance with ss 37 and 52 of the Act, which payments, as I understand it are presently being paid without any formal award of the Compensation Court. If I am in error in either of these assumptions the damages assessed would need to be reviewed.

61    Having accepted that double compensation is to be avoided and that payments under the Act must be taken into account, the question arises as to the manner in which this may be done. In Hood Constructions the compensation paid and payable was apportioned 50/50 between the compensable injury and the subsequent medical negligence, whilst in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492, it appears that the total amount of past and future compensation payments was deducted from the common law damages; and a similar approach appears to have been taken by the majority in Adams v Ascot Iron Foundry (1968) 72 SR (NSW) 120, and also in Franklins Self Serve.

62    Although Hood Constructions, like the present case, involved negligence at common law in the treatment of a compensable injury, the circumstances are significantly different in that whereas in Hood Constructions the negligent treatment of the compensable injury resulted in substantially different and much more serious consequences, in the present case the common law negligence merely resulted in an aggravation and acceleration of the compensable injuries for which aggravation and acceleration the employer was liable to pay compensation in any event: Lindeman Ltd v Colvin (1946) 74 CLR 313 at 321, Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529.

63    In these circumstances I am satisfied that the avoidance of double compensation can be properly effected by deducting from the amounts allowed for past and future economic loss the compensation paid or payable, by allowing nothing for past out-of-pocket expenses (which have already been paid by the employer) but allowing for future medical expenses (to avoid the plaintiff being forced into disputation with the employer on this issue), and by assessing general damages, not by reference to the plaintiff's overall condition, but only by reference to the aggravation and acceleration of his condition as a result of the manipulations on the reasoning that his only remedy for the original injuries (absent the manipulations) is the compensation award.

Damages - quantum

64    For such aggravation and acceleration of the plaintiff's condition and the continuing effects thereof, I assess the plaintiff's general damages at $70,000 of which I apportion $35,000 to the past and I allow interest on this latter amount at 2% per annum from 30 June 1992 to date namely $6,090.

65    As to Past Economic Loss, a Schedule was handed up based on the net earnings of two comparable employees containing calculations up to 21 July 2000 amounting to $364,901, to which must be added a further 31 weeks at 877.91 per week, namely $27,215 making a total of $392,116. The amount of weekly compensation paid up to 15 March 2000 (Ex. L) was $127,212 which must also be brought up to date. The plaintiff's evidence was that his current compensation payments are $370 per week net but I regard the figure set out in the pay slip (Ex. M) as more likely to be correct, namley $355.80 gross or $307.80 net a week. I add to that figure 50 weeks at $355.80 per week, $17,790, making a total amount to be deducted of $145,002, and for Past Economic Loss I allow the difference, namely $247,114. I also allow interest on this amount at 5.5% p.a. for 8½ years, namely $115,526. I appreciate that I have used gross figures for the deduction but the figure in Ex. K is a gross figure and the difference is taken into account in paras [67] and [68].

66    As regards Loss of Future Earning Capacity I have already expressed the view that even without the chiropractic treatment, the plaintiff's working life would probably not have extended beyond 10 years i.e. to June 2002, a period of a further 16 months. For this period I allow a net wage of $877.90 less the workers compensation payments of $307.80 per week making $570.10 per week which capitalized at 3% p.a. over 16 months amounts to approximately $36,500 and I allow this amount.

67    There is a claim for tax paid by the plaintiff on weekly workers compensation payments (commonly referred to as the "Fox v Wood component"), but the defendants submit this head of damage is not relevant in a case such as the present where the plaintiff does not have to refund the compensation payments to his employer.

68    Fox v Wood (1981) 148 CLR 438 proceeds on the basis that by having common law damages assessed on a net basis, but being required to repay the gross (before tax) amount of compensation after having only received the net amount of such compensation in the first place, the plaintiff would otherwise be out of pocket. The situation here is different but the result is the same. The plaintiff's common law damages have been assessed on a net basis but although he would only have received the net (after tax) amount of compensation, the gross amount of such compensation has been deducted from his notional net wages so that he is still out-of-pocket to the extent of the amount of tax paid on the compensation payments. Accordingly the amount of such tax should be included in the judgment. This has been calculated up to the date of trial at $36,007 and I allow a further 32 weeks, $1,536 to bring them up to the present, making a total of $37,543.

69    For the reasons already given I allow nothing for past medical expenses, all of which have been paid by the employer. In respect of the future, claims are made for physiotherapy and medication, psychological treatment and visits to his general practitioner and specialist. The plaintiff is not presently having physiotherapy, it has not helped him in the past, and there is no evidence it will be of any benefit to him in the future.

70    I allow the amount claimed for medication ($20,084.70) and psychological treatment ($4,440.00) but disallow the amount claimed for visits to a specialist. The plaintiff has not for sometime seen any specialist except for medico legal purposes and for Dr Moloney in respect of the latest fusion in March last year the treatment for which appears to be complete. As regards visits to a general practitioner, I do not consider visits every 6 weeks justified, but he will continue to need such visits at least 4 times a year to provide for renewal and possible variations of his prescription medicines and for this purpose I allow $1,720, making a total for future out-of-pocket expenses of $26,245.

Domestic Assistance

71    There is a claim for domestic assistance past and future, but very little evidence and hardly any submissions in relation to it. Mrs Maguire said (T 183) that since the chiropractic treatment there are a number of things he did around the house which he can no longer do and she also said that there were a number of things which she had to do for her husband because of his physical restrictions; she produced a list of those items which became Ex. H. These matters amounted to 17½ hours a week but 7 hours of that related to keeping him occupied and calm etc, and it was conceded in final address that this could not be allowed. Except possibly for gardening (and related matters), the other items are minimal as to time (e.g. helping him put on his socks) or items which Mrs Maguire would generally have done for him in any event (e.g. ironing); and in my opinion the total that should be allowed under this heading is 2 hours a week.

72    As the plaintiff would have required this degree of assistance at some stage in any event because of his deteriorating cervical and lumbar spine, I am of the opinion that it should only be allowed from the time of his cervical surgery until 6 months after his final lumbar surgery in March 2000; that is from 9 September 1992 until September 2000, a period of 8 years. There was no specific evidence of an appropriate rate so I allow the amount claimed in the Particulars under Part 33 rule 8A namely $25 per hour; that is $50 per week for 8 years, $20,800. If the parties can point to any evidence in relation to this head of damage which I have overlooked I would be prepared to reassess it and also consider any claim for interest thereon.

73    These various heads of damages may therefore be summarised as follows:

General damages $70,000
Interest on general damages to date 6,090
Past economic loss 247,114
Interest on past economic loss 115,526
Loss of future earning capacity 36,500
Tax paid on workers compensation 37,543
Out-of-pocket expenses to date NIL
Future out-of-pocket expenses 26,245
Domestic assistance 20,800
$559,818

74    The plaintiff is also entitled to damages for loss of superannuation benefits, but as the only figures put before me in evidence were based on a loss of earning capacity to age 65 I am unable to calculate the value of his loss of superannuation benefits on the basis that his working life had already been substantially shortened prior to his consultations with the two defendants. I therefore give the parties leave to adduce further evidence on this issue if required.

75    As indicated earlier in this judgment the second defendant is liable for all the plaintiff's damages, but the first defendant is only liable for so much of those damages as relate to or arose out of the plaintiff's neck. In my opinion the low back has in the past been the cause of substantially greater pain and discomfort including more hospital admissions and surgical complications; but his current and future pain restrictions and disabilities and his loss of past and future earning capacity has been due to a combination of both his neck and back conditions to such an extent that it is impossible to differentiate between them. Accordingly, whilst the second defendant must be regarded as liable for the whole of the damages, the first defendant is only liable for so much thereof as relates to one third of past general damages and interest thereon and one half of each of the future general damages, past and future economic loss, tax on workers compensation and future out-of-pocket expenses. As the need for domestic assistance arises primarily because of the unsuccessful surgery on the lumbar spine, this head of damage is the responsibility of the second and not the first defendant. There are no cross-claims filed by either defendant against the other and subject to determination of these outstanding issues such as superannuation there will in due course be judgment for the plaintiff against the second defendant for $559,818 and against the first defendant for $262,662. Such judgments will be concurrent to the intent that the total amount recoverable by the plaintiff will be $559,818.

76    I stand the matter over to a date to be fixed to hear further evidence if required on loss of superannuation benefits and further submissions on domestic assistance, to make formal orders for the entry of judgment and to deal with any questions of costs. oOo

Last Modified: 03/13/2001