Matthews v Yildirim - [2004] WADC 262

MATTHEWS -v- YILDIRIM [2004] WADC 262

Last Update: 23/12/2004

MATTHEWS -v- YILDIRIM [2004] WADC 262
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WADC 262
Case No:	CIV:2276/2002	Heard:	23-27 AUGUST 2004
Coram:	WISBEY DCJ	Delivered:	22/12/2004
Location:	PERTH	Supplementary Decision:
No of Pages:	29	Judgment Part:	1 of 1
Result:	Claim dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GORDON MCLEAN MATTHEWS YILDIRIM YILDIRIM
Catchwords:	Negligence Causation Chiropractor Duty to warn plaintiff of material risk inherent in proposed examination No foreseeable risk in examination No warning given No negligence in manner of examination Plaintiff would have undergone examination if warning consistent with risk given
Legislation:	Nil
Case References:	Rogers v Whitaker (1992) 175 CLR 479 Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65 Wyong Shire Council v Shirt (1980) 146 CLR 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MATTHEWS -v- YILDIRIM [2004] WADC 262 CORAM : WISBEY DCJ HEARD : 23-27 AUGUST 2004 DELIVERED : 22 DECEMBER 2004 FILE NO/S : CIV 2276 of 2002 BETWEEN : GORDON MCLEAN MATTHEWS

Plaintiff

AND

YILDIRIM YILDIRIM

Defendant

Catchwords:

Negligence - Causation - Chiropractor - Duty to warn plaintiff of material risk inherent in proposed examination - No foreseeable risk in examination - No warning given - No negligence in manner of examination - Plaintiff would have undergone examination if warning consistent with risk given

Legislation:

Nil

Result:

Claim dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr T H Offer

Defendant : Mr A S Stavrianou

Solicitors:

Plaintiff : Trewin Norman & Co

Defendant : Evangel Taylor

Case(s) referred to in judgment(s):

Rogers v Whitaker (1992) 175 CLR 479

Case(s) also cited:

Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Wyong Shire Council v Shirt (1980) 146 CLR 40

(Page 3)

1 WISBEY DCJ: The plaintiff was born on 5 August 1947 and at the material time was an unemployed service supervisor. He alleges that on 30 July 2001 he underwent a chiropractic manipulation and/or examination of his cervical spine by the defendant, and as a result of excessive force applied in the procedure he suffered a left vertebral pontine stroke, soft tissue injury, facet joint irritation, and irritation of the greater occipital nerve.

2 It is the plaintiff's case that the defendant was negligent because the procedure involved excessive force causing an extension of the cervical spine beyond an appropriate range of movement, and that the defendant failed to warn him of the risks associated with chiropractic manipulation so as to enable him to make an informed decision as to the advisability of undertaking the procedure.

3 The allegation that the defendant failed to undertake appropriate preliminary investigations was not pursued.

The evidence

The plaintiff

4 Although unemployed at the date of the incident, the plaintiff had shortly prior thereto been employed as a marine shipping repairs service manager.

5 The plaintiff's wife, Janet Matthews, was in mid-2001 undergoing chiropractic…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] WADC 262
Decision Date: 22 DECEMBER 2004

CaseChat Overview and Summary

Matthews v Yildirim involved a claim of negligence against a chiropractor, Yildirim, by the plaintiff, Matthews. Matthews sought damages for personal injury allegedly sustained during a chiropractic examination conducted by Yildirim. Matthews alleged that Yildirim was negligent in failing to warn him of material risks inherent in the examination, which resulted in his injury. The case was heard in the District Court of Queensland.

The primary legal issues were whether Yildirim had a duty to warn Matthews of any material risks associated with the proposed examination, and if Yildirim's failure to provide such a warning constituted negligence. The court had to determine whether the risk of injury during the examination was foreseeable and whether Yildirim's conduct in not warning Matthews of this risk breached any duty of care. The court also needed to consider whether Matthews would have undergone the examination had he been properly warned of the risks involved.

The court found that there was no foreseeable risk inherent in the examination that warranted a warning from Yildirim. The risk of injury was not material or significant enough to require a specific warning. Additionally, the court determined that Yildirim's manner of conducting the examination was not negligent. Given that Matthews would likely have proceeded with the examination even if a warning had been provided, the court concluded that Yildirim's failure to warn did not contribute to Matthews' injury. Therefore, the claim was dismissed.

The final orders of the court were to dismiss the plaintiff's claim with no orders as to costs.

Orders

Orders of the court

Claim dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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