| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA 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
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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
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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 treatment with the defendant who invited his patients to bring their partners to an information evening. The plaintiff attended the function during which the defendant explained the benefits that could be achieved by chiropractic treatment, concluding the evening with the offer of a waiver of the $100 consultation fee to anyone who then made an appointment for a spinal appraisal. The plaintiff stated that as he did not have any problems with his spine, he was not particularly interested, but his wife was keen for him to take up the offer and argued with him until he agreed to make an appointment. The plaintiff stated that the main reason his wife wished him to undergo an appraisal was that he had suffered from reflux for years. 6 The plaintiff's recollection was that he cancelled the first appointment but attended on 30 July 2001 "to keep the peace", although he was not enthusiastic. He stated that on the way to the consultation he stopped his vehicle and contemplated returning home, but as he concluded that no harm could come from it, proceeded to undertake it.
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7 On arrival at the defendant's rooms the plaintiff was required to complete a health questionnaire before attending the defendant who discussed his health history generally. They then went into the treatment room where the defendant carried out an examination of the plaintiff's spine moving his neck variously into positions of rotation, flexion and extension. The plaintiff claimed that the defendant having placed his hand on the plaintiff's head, moved his neck beyond its active range. The plaintiff, because of disinterest, was unsure of the exact nature of the procedure undertaken. He stated that he experienced pain and discomfort during the examination, which he thought must be consistent with the nature of the procedure. At one stage, as the defendant was pressing down on his vertebra, the plaintiff remarked that because of the amount of pressure being applied he was experiencing pain, but the defendant continued with the examination.
8 The plaintiff's recollection was that the defendant's receptionist was present during examination, sitting two or three metres from him, making notations in a pad recording the defendant's findings. The plaintiff stated that following the consultation his whole spine was tender and painful. The plaintiff had x-rays taken following the procedure and delivered the films to the defendant's receptionist. 9 The plaintiff experienced spinal pain following the procedure, which gradually worsened. He experienced neck and back pain, later accompanied by headaches. On Wednesday 1 August 2001 the plaintiff returned and informed the defendant that he was experiencing pain in his neck and lower back. He claimed that the defendant responded that after going through such an examination it was natural to experience soreness for a couple of days. 10 In the event the plaintiff stated that his condition deteriorated and as a consequence on Friday 3 August 2001 he telephoned the defendant's rooms and as the defendant was in the Eastern States, spoke to Dr Simpson (the defendant's wife) advising her that in addition to increasing spinal pain he was experiencing tinnitus, headaches and blurred vision. He claimed that Dr Simpson responded "It seems like there must have been some sort of excessive force used". Dr Simpson, considering that the x-rays showed spinal misalignment, suggested a six to eight week realignment course, which the plaintiff declined. She also recommended that he apply icepacks to his neck periodically, which he did without benefit.
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11 The plaintiff attended Dr Simpson again on Saturday 4 August 2001 when she applied a vibrating pad and manual pressure to his spine, providing temporary relief. The plaintiff's symptoms continued to increase and he visited Dr Simpson again on the Sunday and Monday but the further treatment failed to provide relief.
12 On Monday 6 August 2001, the defendant having returned, the plaintiff and his wife attended the defendant's rooms and interrupted a lecture being given by him, complaining bitterly about the plaintiff's condition. In an endeavour to placate the plaintiff the defendant arranged an appointment at 7.00 am the following morning, but when the plaintiff and his wife attended, the defendant advised that in view of all the circumstances he was not prepared to further treat either of them. 13 The plaintiff took his x-rays and on Wednesday 8 August 2001 consulted his general practitioner, Dr La Valette, who examined and referred him for a CAT scan and bone scan. The plaintiff was admitted to Royal Perth Hospital on Friday 17 August 2001 and following investigative procedures was admitted to the neurological ward where he remained for about 12 days. He stated that following discharge from hospital his headaches decreased in intensity, but the tinnitus and neck pain remained at pre-admission level. 14 The plaintiff stated that the only symptom that had really lessened since the incident was headache, although he was still experiencing sudden onset headaches lasting for short periods of time. Although neck pain had decreased, he still experiences pain requiring the ingestion of analgesics (Tramal) on a daily basis. His description of the limitations imposed by the neck pain was rather vague. The visual symptoms were of short duration. The plaintiff stated that his main continuing problem was tinnitus which was aggravated by noise. He described it as a constant buzzing or humming noise inside his head such that on occasions his head felt like it would explode. Because of tinnitus and neck pain, the plaintiff frequently took medication (Tenix) to assist him to sleep. He experienced difficulty working or coping socially in a noisy environment. 15 The plaintiff stated that work as a marine shipping repairs service manager necessarily involved hands on activities, often in a noisy environment, although it was usual to wear earmuffs when so working. It also involved some work in confined circumstances. 16 The plaintiff was not working at the date of the incident, having ceased work with West Australian Engineering on 18 July 2001, that
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business being in rather constrained financial circumstances. He had made application for the position of service manager with another business before the incident. The plaintiff's book of economic documents was received in evidence (Exhibit 1) and the supplementary book (Exhibit 2). 17 The plaintiff considered himself unfit for work for some time post-incident, but began looking for employment in August 2003, applying for what appears to have been cleaning jobs at the Whitfords Shopping Centre. He stated that he began looking for work because his condition had plateaued and he was coming to terms with his symptoms. Eventually he found work with Flotech Engineering as a purchasing and clerical officer working three days a week. On several occasions he worked four days in the week, but claimed that caused his symptoms to deteriorate. He was working eight hours per day at the rate of $22.97 gross per hour. 18 The plaintiff tendered an amended schedule of special damages (Exhibit 3). 19 The plaintiff estimated that presently he would be taking 7 Tramal, 2-3 sleeping tablets, and, 7 Coversyl tablets per week, and other medication which had been prescribed following a heart attack in June 2003. 20 The plaintiff claimed that as a result of the incident he had ceased to carry out home maintenance and gardening, and his wife undertook all the gardening and any necessary domestic duties. In addition she did more of the driving than she had done pre-incident. He suggested that his wife's increased duties took about 10 hours per week, although it was clear that was nothing more than a wild guess. 21 There had also been a reduction in the plaintiff's social activities. He continued to play lawn bowls although not as regular as before the incident, and had ceased playing golf. 22 It appeared from the plaintiff's evidence that he was probably concentrating unnecessarily on his symptoms. 23 In cross-examination the plaintiff accepted that save for extension, he had a reasonable range of painless neck movement. He stated that back pain resolved about three months after the incident without any treatment. He had never experienced nor received treatment for spinal problems prior to the incident.
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24 The plaintiff was cross-examined concerning the physical component in the various types of employment he had undertaken prior to the incident and asserted that there was a hands on physical component, although I got the impression that it was not significant. He stated that the gardening undertaken by his wife as a result of his disability included mowing the lawn and trimming trees and shrubs.
25 When asked whether there was any reason he could not work full-time the plaintiff stated that on the occasions he had worked a four day week it seemed to aggravate his symptoms. He emphasised that the neck pain, tinnitus and headaches restricted him vocationally. 26 The plaintiff confirmed completing a confident patient introduction form at the first consultation with the defendant (Exhibit 6). 27 The plaintiff stated that when the defendant examined his range of neck movements it resulted in some soreness and discomfort, but not it would appear of a high order. His recollection was that the defendant was applying pressure to the mid-back when he indicated that he was feeling pain, although generally he felt pain throughout the examination. He denied that the movement of his neck by the defendant was slow and gentle. 28 The plaintiff confirmed that when he saw Dr Simpson on Friday 3 August 2001 he was experiencing headaches, blurred vision, and tinnitus, in addition to the neck and back pain. He confirmed that the neck pain was intense and increased immediately post-incident, although it then gradually reduced. He confirmed that when leaving the defendant's rooms on 7 August 2001 he uttered words to the effect that "everybody is going to know what you've done to me". He stated that he had dizzy spells for three or four months post-incident. 29 He emphasised that he went to the initial consultation reluctantly and "just wanted to go there and get it over and done with … I was going there to have this examination and that would have been the end of it". 30 In re-examination the plaintiff was asked what his attitude to chiropractic would have been if it had been explained to him that there was the risk of a stroke and he said that he would not have undertaken an examination if he believed there was any risk involved.
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Ross Stewart Goodheart
31 Dr Goodheart, a consultant neurologist, saw the plaintiff on 16 December 2003 and 25 May 2004 and his reports dated 19 February 2004 and 29 June 2004 were received in evidence (Exhibits 7.1 and 7.2). 32 In the report of 19 February 2004 Dr Goodheart recounted the history and set out the results of his clinical testing. He noted some limitation of neck movement, particularly lateral flexion to both sides. He concluded that on the basis of the medical history the plaintiff had suffered a left vertebral artery dissection as a consequence of chiropractic misadventure on 30 July 2001 and accepted that the symptoms of blurred vision and balance disturbance related to the dissection. In addition he considered there was evidence suggesting a soft tissue injury to the neck. He reported "although the degree of force may be a factor in the subsequent development of dissection of a vertebral artery, it is my opinion that there are other factors including anatomy of the artery and the degree of movement induced within the cervical spine which could also contribute to the dissection". 33 In the report dated 29 June 2004 Dr Goodheart noted that the plaintiff continued to experience constant tinnitus together with neck discomfort and other neurological signs, exacerbated by activity. He referred to a neurological study covering the period 1985 to 1995 during which period 11 patients were identified as presenting to Royal Perth Hospital with neurological problems attributable to spinal manipulation. Six presented with stroke, and two with transient cerebral ischaemia. 34 In evidence Dr Goodheart expressed the view that the normal range of cervical movement did not usually cause vertebral artery dissection, but noted that some arteries were more susceptible to dissection. He stated that it was not unusual for someone to have symptoms from a soft tissue injury three years after the event, but his evidence tended to suggest that recovery was more likely. He stated that his examination of the plaintiff's range of neck movements revealed some limitation but without pain on movement. He regarded the limitation of movement as mild and considered that it could result in some partial vocational incapacity although it should not restrict his hours of work. 35 Dr Goodheart's assessment was that the neurological symptoms consequent upon the brain stem infarct were moderate. He confirmed that when taking the history from the plaintiff, no mention was made of low back pain post-incident. He stated that the tinnitus and positional related
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vertigo were untreatable, and that medication was all that was required for the headaches and neck pain.
Jeffrey Canham La Valette 36 Dr La Valette, the plaintiff's general practitioner for approximately 20 years, has been attending him since the incident. Dr La Valette confirmed that he had seen the plaintiff on eight occasions in addition to those recorded in the schedule of damages. He confirmed that he bulk billed patients. His eight reports of various dates between 8 October 2001 and 9 August 2004 were received in evidence (Exhibit 8.1 to 8.8). 37 In the report dated 8 October 2001 (Exhibit 8.2) Dr La Valette expressed the view that the plaintiff had been unfit for work of any kind since the incident as a result of his significant symptoms, in respect of which there had been little improvement. That view was confirmed in reports dated 25 February 2002, 28 October 2002 and 26 September 2003. 38 On 19 March 2004 Dr La Valette replied that the plaintiff continued to complain of chronic tinnitus, headache, neck pain and stiffness. He stated that the plaintiff was unlikely to ever be able to go back to his original vocation, and was only fit for part-time sedentary work. 39 He confirmed in evidence that the plaintiff was taking Warfarin, Tramal, Coversyl, Temaze, Mobic tablets and Tegretol as a result of symptoms directly referable to the incident. Dr La Valette expressed the view that the plaintiff required monthly reviews in the future, although I have some difficulty appreciating what that would achieve for the plaintiff. He did not have any record of the plaintiff complaining of low back pain in the three month period immediately post-incident.
Janet Laura Matthews 40 The plaintiff's wife confirmed that she was receiving treatment from the defendant over a three to four week period prior to 30 July 2001. It was during the course of that treatment that the defendant suggested to her the plaintiff might benefit by attending an information evening. She stated that she so advised the plaintiff who basically was not interested, but succumbed to her pressure to do so. She had quite a heated discussion with the plaintiff concerning the free consultation saying to him "Well its for nothing … its worth giving it a go to see if there might be anything out of alignment that might help". As a result the plaintiff agreed to make an appointment when he "basically went back in to shut me up".
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41 When the plaintiff returned from the consultation he complained that his neck and back were very sore, and he continued to complain of increased symptoms over the next few days such that he arranged to attend the defendant's rooms on Wednesday 1 August. By Thursday he was complaining of headaches, tinnitus and blurred vision, and on Friday, the defendant being absent in the Eastern States, consulted Dr Simpson.
42 Mrs Matthews stated that the plaintiff complained to Dr Simpson of tinnitus, headaches, ocular problems and neck and back pain. Dr Simpson treated him. Because the plaintiff's symptoms were increasing, they attended the defendant's practice on Monday 6 August, being the occasion when they interrupted the lecture. The defendant arranged to see them the following morning but when they attended the appointment indicated that as a result of legal advice he would not further treat either of them. 43 Mrs Matthews stated that the plaintiff had continued complaining of symptoms, particularly neck pain and tinnitus, and had become depressed and reduced his social and sporting activities. She stated that he did very little gardening, and had ceased washing the car and walking the dog. She stated that she had taken over these activities including mowing the lawn, but had difficulty identifying the time involved in the extra activities. She confirmed that she plays lawn bowls with the plaintiff on Saturdays and that they are engaged in that activity from 1.00 pm until about 4.00/4.30 pm. 44 Mrs Matthews stated that on Friday 3 August 2001 Dr Simpson remarked to them that it looked like excessive force had been used in the examination.
Peter Watson 45 Mr Watson, a neurosurgeon, saw the plaintiff on 14 January 2004 and his report on the examination, bearing that date, was received in evidence (Exhibit 9). Mr Watson set out the history obtained from the plaintiff including that "Dr Yildirim apparently examined Mr Matthews by carrying out a number of neck movements or gentle manipulations". He further set out that the plaintiff stated that the defendant had him carry out a number of active cervical movements applying additional force at the end range. The plaintiff complained of ongoing symptoms including headaches which were largely occipital or in the nuchal distribution, frontal headaches, neck pain on movement, and tinnitus. Mr Watson reported:
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"It is undoubtedly possible for a person to suffer a spontaneous dissection of the vertebral artery however in the context of pain onset occurring during a physical examination one would have to state that it is most probably that movements in the neck contributed directly to the dissection occurring in the vertebral artery." 46 On the material provided to him he concluded that the plaintiff suffered a vertebral artery dissection being a minor tear which did not lead to any major disruption of the vertebral circulation but was sufficiently severe to lead to a small pontine infarct or stroke. He was happy to accept that the complained symptoms were referable to that dissection. 47 Mr Watson considered that the vertebral artery dissection and pontine infarct would likely result in a period of incapacity for work of between 6 to 12 months. He contemplated that further physiotherapy treatment, general practitioner attendances and medication might be appropriate for a period of three to four years at a cost of $1,500 per annum. 48 In cross-examination Mr Watson expressed the view that it would be unusual to experience cervical pain for two to three days following a cervical examination. His recollection was that the plaintiff had not indicated that any of the neck movements undertaken by the defendant were excessive, although additional force had been used to move the neck beyond the active range. He attributed the onset of pain following the examination to the vertebral artery dissection rather than soft tissue injury. His view was that the ongoing neck pain was also due to the vertebral artery dissection, and was not of the view that the plaintiff had a soft tissue injury. He confirmed that a vertebral artery dissection was exceedingly uncommon.
David Mark Rosen 49 Dr Rosen, a neurologist, attended the plaintiff on his admission to Royal Perth Hospital and saw him on several occasions after his discharge. In his report of 16 February 2002 (Exhibit 10) he referred to the history of neck and back pain following the incident, and stated that initial diagnostic investigations revealed a left vertebral artery dissection and a small pontine stroke. 50 He recorded that at review on 12 December 2002 he had encouraged the plaintiff to go back to work and resume normal activities. He reported that the plaintiff did not have any significant neurological impairment or
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disability, and that it was likely his symptoms would improve notwithstanding the probable influence of medico-legal issues, his work capacity being largely unimpaired as a result of the vertebral dissection and stroke. 51 Dr Rosen confirmed the contents of his report in evidence, stating that his first contact with the plaintiff was on 17 August 2001. 52 In cross-examination he expressed the view that if a chiropractic examination of the cervical spine involved even gentle movement of the spine beyond the limits of tolerance, it could be sufficient to result in a dissection. He stated that in the course of his own examination he never applied force to extend the cervical spine beyond a comfortable limit of excursion. He stated that the horizontal portion of the vertebral artery where it came out from the vertebral bony canal to the brain was a place where it was thought to be very vulnerable, and that it was not force but the creasing of the artery over the bony prominence that could give rise to difficulty. He did not seem to have trouble with cervical movement that did not result in the patient experiencing pain.
Michael John Kent 53 Dr Kent, an anaesthetist and pain management consultant, has attended to the plaintiff having first seen him in November 2002 and on several other occasions up until August 2004. 54 In his report of 22 October 2003 (Exhibit 11) having recounted the history, he noted that initial examination revealed a normal range of cervical spine movement. He concluded that the majority of the plaintiff's neurological symptoms were explicable on the basis of a left vertebral artery dissection, and that the neck pain was likely to be due to facet joint dysfunction. The plaintiff declined to be investigated by way of diagnostic injection. 55 Dr Kent reported that on 16 September 2003 there had been a significant reduction in neck pain and headaches, although significant tinnitus was continuing. He noted the plaintiff suffered a heart attack in June 2003 and underwent angioplasty and the insertion of a stent. He stated that the plaintiff's work capacity was significantly compromised for 12 to 18 months post-incident, but that from that time on, from a purely physical point of view, he was capable of returning to work although not as a marine diesel fitter which involved work of a heavy manual nature associated with loud noise, in respect of which the plaintiff was intolerant.
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He observed that the plaintiff's age and the period of time spent out of the workforce would be vocationally disadvantageous. 56 Dr Kent confirmed in evidence that the plaintiff's neck pain and headache was largely due to a facet joint dysfunction and occipital neuralgia both of which related to the chiropractic event. He considered that there was no reason from a medical point of view why the plaintiff would presently be incapacitated vocationally as a result of neck pain or headaches.
Quentin John Malone 57 Mr Malone, a neurosurgeon, saw the plaintiff on 17 August 2001 at the Joondalup Health Campus and arranged his transfer to Royal Perth Hospital. He has seen the plaintiff on a number of occasions since and been involved in the management of his condition. His three reports were received in evidence (Exhibit 12.1 to 12.3). 58 On 13 March 2003 he reported that when seen on 17 August 2001 the plaintiff was complaining of significant posterior cervical and occipital pain and visual symptoms. The combination of the symptoms and the chiropractic treatment caused Mr Malone to suspect a vertebral artery dissection and consequently he arranged for the plaintiff to be transferred to Royal Perth Hospital for further investigation. He reported the plaintiff had been troubled by chronic paraesthesia in the left hand, left-sided upper cervical discomfort and tinnitus. He considered that provided the plaintiff remained on Aspirin it was unlikely that he would have further consequences from the dissection. He indicated in the report that he felt the plaintiff was able to undertake work on a full-time basis so long as it did not involve a significant physical component. 59 Mr Malone noted that the literature recognised vertebral artery dissection as a known consequence of chiropractic manipulation because with extreme rotation or lateral flexion of the cervical spine there was a risk of the vertebral artery being stretched or compressed to the point that the internal lining was injured. He reported his conclusion that the chiropractic incident was directly causative of the vertebral artery dissection. 60 When addressing the negligence issue he stated: "It is clearly the case that chiropractic manipulation of the cervical spine is a relatively common event in Australia, with vertebral artery dissection being relatively uncommon.
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However, the condition is well recognised within both medical and chiropractic literature." 61 In his report of 18 December 2003 Mr Malone agreed that vertebral artery dissection could result in neck discomfort, although it was unusual. He did not believe that the presence or absence of pain in the cervical spine was helpful in assessing the cause of the left-sided vertebral artery dissection. 62 In his report of 18 December 2003 Mr Malone stated: "Given that the vertebral artery passes through a number of cervical foramina and is therefore relatively rigidly held within the cervical spine, significant degrees of manipulation with rotational lateral flexion can cause injury to the vertebral artery through disruption of its internal lining. Therefore it is not so much the force but rather the degree of change of alignment. However, it is accepted that to place a patient in extreme positioning with either lateral flexion or rotation, particularly in the presence of neck discomfort, will require significant force in order to overcome the patient's muscular efforts to preclude this." 63 He reported that spontaneous dissection of the vertebral artery was a rare event. 64 In the course of his evidence he confirmed his view that in October 2002 the plaintiff should not have been incapacitated vocationally because of neurological symptoms, but stated that was an assumption that needed to be tested. He stated that there was potential for vertebral artery dissection from rapid cervical movement and/or movement beyond the normal range. He noted that chiropractic manipulation of the cervical spine was a relatively common procedure in Australia and vertebral artery dissection relatively uncommon, suggesting that most people had sufficient elasticity to tolerate such procedures. 65 Mr Malone concluded that during the examination the plaintiff's neck had been moved beyond the voluntary or active range which resulted in the dissection. He was of the view that no radiological or other investigations were necessary before chiropractic manipulation was undertaken.
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John Kingston Ker
66 Mr Ker, a rehabilitation physician, saw the plaintiff on 4 February 2003 and 30 July 2004 and his reports of 14 February 2003 and 4 August 2004 dealing with those consultations were received in evidence (Exhibit 13.1 and 13.2). 67 The first report records that the plaintiff told Mr Ker he was a qualified diesel fitter, although he had worked in a managerial role for some time up until early July 2001 when he was retrenched. Mr Ker set out the history noting that there had been some recovery although the plaintiff had ongoing intrusive tinnitus in both ears. Examination did not reveal any neurological deficit but there was some restriction of cervical spine movements. His view was that the plaintiff's tinnitus and dizziness were attributable to the left-sided vertebral artery dissection and pontine lesion, although he considered that the ongoing neck pain and headaches were more likely to be mechanical in nature. It seems apparent from his report that at that date he considered the plaintiff was fit to engage in some vocational duties, recognising that his age posed some difficulty in that respect. 68 On 4 August 2004 Mr Ker reported that the plaintiff continued to complain of left-sided neck pain, generalised headaches, and intrusive tinnitus. Mr Ker considered that there had been some improvement in the plaintiff's condition since the earlier consultation but took the view that the residual symptoms of headache, neck pain and tinnitus were likely to be permanent. He noted that the plaintiff was working 24 hours a week and expressed the view that it was unlikely that he would be able to sustain full-time work on a permanent basis because of neck pain, and more particularly, tinnitus. 69 In the course of his evidence Mr Ker stated that he had been unable to determine the cause of the plaintiff's ongoing neck pain but that it would be very unusual for it to be causally related to the neurovascular problems.
The defendant's case
Yildirim Mahomet Yildirim 70 The defendant, 32 years of age, obtained a Bachelor of Science degree in 1994 specifically referable to anatomy, physiology, chemistry and life sciences; and obtained a Master of Chiropractic from Macquarie University Sydney in 1997. He obtained chiropractic registration in
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Western Australia in March 1998, and has been practising chiropractic since that date. He has engaged in continuing chiropractic educational programmes. 71 He confirmed that the plaintiff's wife, Janet Matthews, had been his patient for four to six weeks prior to the 23 July 2001. On that evening she and the plaintiff attended his chiropractic lecture. Following the lecture the defendant heard Mrs Matthews asking the plaintiff whether he was going to put his name down for a free chiropractic consultation and he was indicating that he was not interested. In the event however he attended for a complimentary spinal check on 30 July 2001 and on that occasion completed a patient card (Exhibit 6). He produced the plaintiff's consultation card prepared by his assistant Julia Blab and completed by the plaintiff (Exhibit 14). From the card the defendant was able to recall that the plaintiff had advised him that he had been made redundant causing him stress. The defendant got the impression that the plaintiff was "going through the motions and he was there because his wife had told him to be". 72 The defendant began an examination which he described as "an observation and a test of the patient's functional capacity". This was preparatory to a treatment which would only be undertaken following radiological examination. The defendant produced an examination order(Exhibit 15), a document detailing recognised chiropractic examination, which he stated was the procedure that he followed on that day. 73 The defendant stated that he began firstly by palpating the plaintiff's spine moving from the cervical to the sacral area whilst his assistant Julia Blab recorded any positive findings. He stated that the pressure he applied when palpating the spinal column was light and just sufficient to blanch the fingernails. He stated that after palpating the spine, which activity was carried out with the plaintiff lying on his stomach, he carried out an examination of the lower limbs. Having completed that part of the examination he asked the plaintiff to bring his chin to his chest with a view to testing dural tension in the spinal cord. Eventually the defendant got the plaintiff to sit on the side of the examination table with his legs towards the door, and the defendant positioned behind him preparatory to a cervical examination. 74 The defendant explained that the active range of motion is where the patient moved voluntarily as far as the patient could, and that the passive range was where the examiner took up any remaining slack in the soft
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tissues. He stated that additional range of movement achieved by passive testing was only of the order of 2 to 3 degrees. He explained the situation with regard to testing the cervical range of motion stating that with rotation once the patient had turned his head as far as he could to the lefthand he would place his thumb and forefinger on the patient's forehead and also at the back of his skull and get the end feel of the range of motion. That testing procedure was a technique which he had been taught in his chiropractic course and was referred to in the standard skills handbook. He stated that the end feel was the physiological elasticity, which was not muscle but more ligaments and discs. He performed that procedure on the plaintiff having first asked him to indicate if he experienced pain. He then checked rotation. There was no force or sudden or quick movement, and no response from the plaintiff indicating pain. He also carried out that procedure testing flexion, extension, lateral flexion and lateral extension. He stated that Julia Blab made appropriate notations during the testing, and there was no recording of pain. 75 As a result of the examination the defendant concluded that the plaintiff was under some form of stress and arranged for him to have spinal x-rays preparatory to manipulation. The plaintiff attended for radiological examination and the radiological report dated 30 July 2001 was received in evidence (Exhibit 16). 76 The defendant stated that when the plaintiff dropped in the x-rays following the examination he remarked that he could feel where the defendant had been touching his neck. 77 The defendant stated that the plaintiff called back on the afternoon of Wednesday 1 August and advised that he had soreness at the base of his skull. As a result the defendant palpated the cervical area and stated that he detected muscle tightness in the C2/3 area. He told the plaintiff that he had hyperactive muscles in that area and advised him to apply ice. 78 The defendant stated that he had carried out similar examinations more than a thousand times. He did not warn patients of any examination risks since he was not performing any manipulative procedure. 79 The defendant stated that on 6 August the plaintiff and his wife interrupted one of his spinal health lectures. He requested the plaintiff to make an appointment which prompted the response: "No you'll talk to us now buddy you've done something to my neck and I was alright before I came here and now I can't move my neck. I haven't had a neck problem in 44 years."
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80 After brief discussion with the plaintiff and his wife the defendant arranged to see them the following morning but when they arrived, having regard to their conduct the previous night, he declined to see or further treat either of them. He stated that the plaintiff asserted that he was going to take his complaints to the Board.
81 The defendant emphasised that when testing the range of cervical movement, or what he called end feel, he was simply feeling the elasticity and the pressure applied was slow tension involving considerably less force than would be applied in a manipulation. 82 When cross-examined the defendant claimed that the offer of a free examination made during his lectures was not primarily connected with practice promotion, but I do not accept that. He agreed that when the plaintiff came in for the examination he was stand-offish and not forthcoming, and that he appeared to just be going through the motions to keep his wife happy. That was why he specifically asked the plaintiff if he wanted to follow him through to the examination room. 83 The defendant was confident that the plaintiff told him at the first consultation that he had been made redundant and that he and his wife were not where they wanted to be financially. He accepted that the examination of the plaintiff was to test his capability and that some force was necessary for muscle testing, although in respect to the range of cervical motion he was simply testing the end range. He stated that the majority of his chiropractic work had spinal orientation. He would not agree that there were risks attached to moving a patient's neck in the examination situation, but agreed that there was a requirement for care in cervical range examination – as he put it " a requirement to be gentle and careful". 84 He agreed that if a patient complained of pain on voluntary cervical movement, he would not engage in assisted movement. He did not accept that he might have asked the plaintiff whether he was experiencing pain during palpation of the cervical spine. He stated that it was the practice of his assistant, Julia Blab, to record in red ink any pain findings relative to the range of motion. 85 The patient card did not record pain being experienced during the cervical examination, although the defendant stated that the plaintiff complained of pain when he was palpating C2/3. He was emphatic that the pressure that he applied during examination was similar to that which he applied on a day to day basis when conducting a chiropractic
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examination. He confirmed that when performing passive cervical movement of the head he was merely testing elasticity, and moving the head a further 2 to 3 degrees. He agreed that when the plaintiff returned with his x-rays he made the comment "I can still feel where you were touching me". 86 When the plaintiff returned on 1 August 2001 complaining of pain in the cervical spine the defendant stated that he palpated the base of the neck and felt the same taut muscles detected in the initial examination. He denied telling the plaintiff that pain was perfectly normal and would go away in a few days. 87 He agreed that when the plaintiff attended his rooms on 6 August 2001 (the lecture date) he appeared to be distressed and angry about the pain he was suffering. When he saw the plaintiff the following morning the plaintiff said words to the effect that he had been living in the Wanneroo area for 25 or 29 years, knew a lot of people and was going to let them know what the defendant had done such that the defendant would have to close his business. He confirmed also that the plaintiff had threatened to report him to the Chiropractic Board. 88 In re-examination he confirmed that the substance of his evidence provided to Dr Kelly and Professor Touret was accurate.
John Lesley Kelly 89 Mr Kelly graduated from the Sydney College of Chiropractic in 1979 and has practised chiropractic for 26 years, primarily specialising in spinal health issues. He has been involved in teaching neurology and been principal of the Sydney College of Chiropractic from 1982 to 1985. In addition he was also engaged in peer review work. Mr Kelly's CV, substance of evidence relied upon and his report were received in evidence (Exhibit 19.1 to 19.3). 90 Describing the procedure involved in a chiropractic examination Mr Kelly stated that it involved a visual inspection of the patient's spine followed by a request for the patient to perform a range of movements to demonstrate forward flexion, extension, lateral bending and rotation. That would be followed by a specific spinal palpation and then rotating, flexing, extending and laterally flexing the cervical, thoracic and lumbar spine, which was a hands on exercise. 91 With specific reference to the cervical spine he stated:
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"The patient is usually asked to sit on an examination table, generally standing behind the patient. When you contact each of the joints of the spine you then move the neck to the full extent of what we referred to as passive rotation. Some chiropractors commence this procedure by getting the patient to turn the neck first as an active movement but you then must follow up by examining what movement is left after the active movement by having the chiropractor turn the patient's head further to examine the joint flow. In other words, the patient's muscles must be relaxed in order for you to feel what it is you're trying to elicit about the condition of the joints … A reasonably competent chiropractor must adopt that technique because until such time as the joints have been felt, you have gained no information about what it is you wish to apply force to create the correction of … It has to be a hands on experience." 92 He stated that it was not the practice to give a risk warning since such an examination did not involve risk. 93 In his report Mr Kelly expressed the view that the defendant's examination of the plaintiff on 30 July 2001 was not the cause of the vertebral artery dissection, that being no more likely than everyday activities such as walking or driving a motor vehicle. He reported that the process of examining a patient's neck by way of palpation and range of motion was a very simply and passive procedure. He did not know of any material risks associated therewith and consequently did not consider any warning regarding vertebral artery dissection was necessary. It was his view that vertebral artery dissection commonly resulted spontaneously. 94 In cross-examination he agreed that the C1/2 joint was the most mobile in the neck and that the vertebral artery was most vulnerable at that location because of its mobility. Movement of the neck, particularly rotation, placed the vertebral artery under greater tension particularly at that level. He agreed that a reasonably competent chiropractor would know that when testing joint play of cervical rotation the vertebral artery would be experiencing more excursion, although he was emphatic in his view that the risk of injury with a normal examination was negligible. 95 His understanding was that the risk of damage to the vertebral artery from a chiropractic procedure was one in 5.85 million. He agreed that the literature demonstrated that 31 per cent of reported vertebral artery dissections occurred after manipulation. He stated that the literature failed to identify factors which would suggest a predisposition to vertebral artery
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dissection. He agreed that it would be unusual for a person to experience pain for a number of days following a competent chiropractic examination of the spine, although tenderness after palpation was not an uncommon experience.
Julia Blab 96 Ms Blab, a chiropractic assistant, was at the relevant time working for the defendant and stated that she had intense training as a chiropractic assistant. She stated that there was a set procedure for a chiropractic examination and that the defendant would commence by palpating the spine looking for any misalignment and that she would record anything he called out – that is any findings. 97 In cross-examination she agreed that if there was a complaint of pain during the examination she would record it on the patient card. There were no such notations on the plaintiff's card.
Kellie Marie Yildirim 98 Ms Yildirim, the defendant's wife, qualified in chiropractic in 1997 and has been registered as and practising as a chiropractor in Western Australia since 1998. Her first contact with the plaintiff was on 3 August 2001 when he contacted the clinic complaining that he was experiencing neck pain and required immediate treatment. As the defendant was absent interstate Ms Yildirim saw the plaintiff and advised him that the x-rays indicated a degenerative spinal condition. She recommended a course of chiropractic, explaining the risks involved and the cost of the treatment, but the plaintiff indicated he was not interested in treatment considering the defendant had caused his neck problem. 99 Ms Yildirim palpated the plaintiff's cervical spine and stated that she felt some trigger points in the suboccipital region as a result of chronically tight muscles and a forward head carriage. The plaintiff indicated to her that if something was not done about the pain, he would take the matter further. Ms Yildirim massaged the cervical area and recommended the use of an icepack. 100 She saw the plaintiff the following day when he was again quite hostile and complaining that there had been no change in his condition, although subsequently conceding that there had been a 40 per cent improvement. Ms Yildirim performed a further massage. When she saw him on 6 August he said that there was no more pain at the base of his neck but he was experiencing a strange sensation where she had been
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massaging. She performed a further massage and that was the last occasion on which she saw the plaintiff.
Allan Jeffery John Touret 101 Associate Professor Touret is an associate professor at the School of Health Sciences at RMIT University in Melbourne, having held that position for 10 years. He graduated as a chiropractor in 1979 with a Bachelor of Applied Science in chiropractic and a diploma of Applied Science in Human Biology. In addition he holds a Master of Applied Science in chiropractic and a Fellowship in Clinical Sciences. He has pursued ongoing education in the field of chiropractic. He pointed out that he had studied neurology as part of his chiropractic degree, and that neurology was a major component in his post-graduate Masters degree. He had studied and taught Anatomy. He appeared to me to be highly qualified in his field. He was engaged in full-time private chiropractic practice for 24 years, and was still so engaged on a part-time basis. 102 Professor Touret is the author of various texts, one of which deals specifically with vertebrobasillar/syndromes following manipulation and specifically with the incidents of such injuries, the anatomy of the injury and the bi-mechanics and mechanism of the injury. He indicated that the available literature and studies demonstrated that the incidence of vertebral artery dissection following chiropractic treatment was put at between one in 3.8 million to one in 5 million. His research demonstrated that there are only three reported cases where placing the head into the rotated position by a spinal therapy manipulation had been followed by a vertebrobasillar complication. 103 Professor Touret stated that there were about 2,000 practising chiropractors in Australia. He stated that there was no recognised correlation between force applied to the neck and the incidence of dissection. It seems that it was Professor Touret's practise to warn patients of possible complications prior to undertaking any treatment. 104 Having perused the substance of evidence provided by Dr Yildirim, he concluded that the examination allegedly carried out was within accepted chiropractic procedural requirements, and in fact was more comprehensive than the average chiropractic examination. In particular it was his view that a proper examination of the cervical spine necessitated an end field movement range, it being a common and normal procedure taught within the chiropractic degree course. He referred to the plaintiff's MRI report which stated:
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"The MRI examination demonstrates a portion of vessel irregularity involving the distal left vertebral artery as it passes around the left lateral mass of C1 and involving the proximal interdural segment." 105 Professor Touret assessed that a physical examination of the type undertaken by the defendant with the plaintiff would take about half an hour and he appeared to have difficulty with the proposition that it could be completed in the time indicated by the defendant. He agreed that during assisted rotation of the cervical spine (the end field testing) placed stress on the vertebral artery and that a chiropractor would need to be mindful of that. 106 He expressed the view that a small percentage of patients might experience pain following a chiropractic examination but that it would not last more than 24 hours or so. He confirmed the view expressed in his report that the forces involved in the normal examination procedures were unlikely to be traumatic enough to dissect a normal artery wall.
Liability
a. Did the plaintiff sustain any injury and or physical disability as a consequence of the chiropractic procedure undertaken on the 30 July 2001. 107 I accept the plaintiff's evidence that following the chiropractic procedure he experienced pain in the cervical and lower spine, and that within days his condition deteriorated and he experienced headaches, blurred vision and tinnitus. He did not have any of these symptoms prior to the procedure. 108 The burden of the medical evidence, particularly that of the treating neurologist Dr Rosen, and the neurosurgeon Mr Malone, was that the plaintiff suffered a vertebral artery dissection which gave rise to his symptoms. I do not accept the view expressed by the chiropractor Mr Kelly that the position was otherwise. 109 The correlation between the chiropractic procedure, development of symptoms, and diagnosis, is such that on the balance of probabilities the appropriate inference is that there was a causal connection between the procedure and the dissection.
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b. Does the evidence establish that the dissection resulted because the procedure was performed negligently.
110 Reference has already been made to the fact that it is the plaintiff's case that the defendant was negligent in that when carrying out a manipulation and/or examination he used an inappropriate degree of force, extending the cervical spine beyond a safe or proper range of motion, thereby causing dissection of the vertebral artery, soft tissue injury, facet joint irritation and irritation of greater occipital nerve. 111 I felt that the plaintiff's evidence concerning the nature of the procedure undertaken lacked particularity and apart of an assertion that the defendant pressed down hard on his vertebra, it did not condescend to the detail which would suggest that it was unduly forceful. Essentially the plaintiff's complaint is that he experience symptoms following the procedure. I do not accept the evidence of the plaintiff and or his wife that at a subsequent consultation with the defendant's wife, she made any suggestion that excessive force had been used, and indeed it would be of no probative consequence had she done so. 112 I am of the view that the plaintiff 's account of the examination has been coloured by the subsequent consequences and do not accept it where it is in conflict with the evidence of the defendant. 113 I consider the defendant to have been a credible witness in his account of the examination undertaken by him, and his evidence, supported as it is by Mr Kelly and Associate Professor Touret (the evidence of both of whom I have no hesitation in accepting on this issue) confirms that the examination undertaken was in accordance with recognised chiropractic practice. In Rogers v Whitaker (1992) 175 CLR 479 at [487] their Honours Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ stated: "In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill." 114 The evidence does not establish that in carrying out the chiropractic procedure the defendant failed to exercise the care and skill that was required from a reasonably competent chiropractor. Indeed I am satisfied, having regard to the evidence of Mr Kelly and Associate Professor Touret, that the position was otherwise. It is not possible to determine whether the plaintiff had any particular vulnerability which facilitated the
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dissection, but it was not the result of a breach by the defendant of his duty of care to the plaintiff.
c. Was the defendant in breach of duty by not warning the plaintiff of the risk of vertebral dissection arising from chiropractic procedures. 115 The defendant's evidence was that he did not warn patients of the risk of physical complications before carrying out a chiropractic examination because as he was not performing any manipulative procedure, there were no risks to address. I accept that on 30 July 2001 he did not carry out any manipulative procedure. 116 Mr Watson's evidence was to the effect that vertebral artery dissection is exceedingly uncommon. 117 Mr Malone stated that it was a known consequence of chiropractic manipulation. 118 Mr Kelly confirmed the view expressed by the defendant that it was not necessary to give a risk warning before conducting a chiropractic examination since the risk of injury for the normal examination was negligible. He agreed that the literature demonstrated that 31 per cent of reported vertebral artery dissections occurred after manipulation, and was of the view that the risk of damage to the vertebral artery from a chiropractic procedure was one in 5.85 million. 119 Associate Professor Touret's evidence was that the literature and studies demonstrated that the incidence of vertebral artery dissection following chiropractic treatment was between one in 3.8 million and one in 5 million, and there are only three reported cases when moving the patient's head in rotation had been followed by vertebrobasillar complication. It was however his practice to warn patients of possible complication prior to undertaking any treatment. 120 Put at his highest, the evidence before the Court could only suggest that the risk of a vertebral dissection resulting from the procedure undertaken by the defendant was extremely remote, and in all circumstance I do not consider that it can be categorised as a material risk. As was said in Rogers v Whitaker at [490] "a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
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121 Having regard to the remoteness of the risk in this particular instance I am not satisfied that a reasonable person in the plaintiff's position, and more importantly the plaintiff, would have attached significance to it.
122 I reject the plaintiff's evidence that had he been advised of the risk he would not have undertaken the examination. It is the case that he was not enthusiastic about undertaking any chiropractic examination and went to the initial consultation reluctantly because as he said "just wanted to go there and get it over and done with, I was going there to have this examination and that would be the end of it". His wife indicated that he agreed to attend the consultation after a heated discussion between them and that he "basically went back in to shut me up". The plaintiff was aware of the fact that his wife had been undergoing chiropractic for sometime without ill effect, and I am not satisfied on the balance of probabilities that had he been advised of the remote possibility of a vertebral artery dissection he would have declined to undergo the procedure. 123 The plaintiff has failed to establish that the defendant was negligent.
Provisional assessment
Loss of amenities 124 I accept that as a result of the incident the plaintiff sustained a left vertebral artery dissection which gave rise to some immediate pain and neurological symptoms of headache, blurred vision, balance disturbance and tinnitus. Additionally there was some spinal symptoms particularly in the cervical area which was probably causally connected to the pontine stroke rather than a direct soft tissue injury. 125 The medical evidence suggests that the pontine stroke resulted in an incapacity for work for up to 18 months by which time the neurological symptoms, save for the tinnitus and positional vertigo, had basically resolved. 126 I am not persuaded that the cervical symptoms have been other than at a very mild level since the above period, or that they have imposed any restrictions on the plaintiff's day to day activities. 127 The main symptom impinging on the plaintiff's enjoyment of life, and effecting his working capacity has been the tinnitus which would appear to be permanent.
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128 The evidence suggests that the plaintiff is adjusting to his disabilities and will continue to do so, and that the level of pharmaceutical support and medical assistance will reduce substantially within the immediate future.
129 I assess that the sum of $28,500 is the appropriate figure to compensate for loss of amenities.
Loss of earning capacity
(i) Past loss of wages 130 The plaintiff, then aged 54 was unemployed at the date of the incident, although I accept that he was actively seeking employment. His age would no doubt have been an impediment. 131 In his consolidated schedule of damages the plaintiff bases his calculation of economic loss on a net figure of $684.10 per week being an average over the four years prior to the incident. I accept that as a reasonable basis for calculation. 132 Over the period of 176.5 weeks between the incident and judgment the potential loss is: $684.10 per week x 176.5 weeks = $120,743.65 I would reduce that to $100,000 to take into account the usual contingencies including the necessity to find and retain employment. During that period the plaintiff in fact has earned: $179.35 per week x 176.5 weeks = $ 31,655.30 The proper allowance for past loss is therefore $68,344.70
(ii) Past loss of superannuation benefits 133 The potential loss is:
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134 In the result I allow $6,241.64 for loss of superannuation benefit.
(iii) Future loss 135 The medical evidence generally indicates that save for the condition of tinnitus the plaintiff has made a reasonable recovery from the effects of the vertebral artery dissection and associated cervical symptoms, such that there should not be any vocational restrictions on him in the area of his expected vocational capacity. I did not consider the plaintiff's evidence of the restrictions imposed upon him by the tinnitus was convincing. I am confident that with a little more determination and application on his part, particularly when the stress of this litigation is behind him, he should be capable of increasing his hours of work. That will no doubt require some adjustment on his part and there will be, at least in the short term, some truncation of his earning capacity. 136 It is not possible in all the circumstances to arithmetically quantify the loss of future capacity; it is a matter of judgment. I allow $65,000 for loss of future capacity including a reduction in superannuation entitlement.
Gratuitous services 137 The evidence as to the necessity for and provision of gratuitous services was unconvincing. I would allow for 100 hours which at the agreed rate of $12 results in an allowance of $1,200.
Future medical and pharmaceutical requirements 138 Having regard to the view I have formed of the plaintiff's present situation and the content of the medical evidence, I am not persuaded that the plaintiff's requirements are at the level claimed by him. It is particularly difficult to justify the present level of general practitioner attendances. Also it seems that there is no ongoing requirement for specialist reviews. 139 I allow $2,500 to cover all aspects.
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Past special damages
140 I am prepared to allow special damages in the sum of $15,869.20 as claimed. 141 In summary an appropriate award would be:
Loss of amenities $28,500.00 Past economic loss $68,344.70 Past loss of superannuation $ 6,241.64 Loss of capacity $65,000.00 Gratuitous services $ 1,200.00 Future medical and pharmaceutical requirements $ 2,500.00 Special damages $15,869.20 Interest at 3% on: Past economic loss $ 68,344.70 Past loss of superannuation $ 6,241.64 Gratuitous services $ 1,200.00 Out of pocket expenses $ 2,043.50 $ 77,829.84 $ 7,925.18$ 7,925.18 $195,580.72
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