McGroder v Maguire

[2002] NSWCA 261

CITATION:	McGroder v Maguire [2002] NSWCA 261
FILE NUMBER(S):	CA 40412/01
HEARING DATE(S):	20 March 2002
JUDGMENT DATE:	13 August 2002
PARTIES :	Gregory McGroder (Appellant) Christopher Maguire (First Respondent) Jonathon Ayscough (Second Respondent)
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2; Beazley JA at 3

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	45/95
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL:	D F Rofe QC/J Mater (Appellant) B H Donovan QC/E C Kennedy (First Respondent) P Dwyer (Second Respondent)
SOLICITORS:	D I Brown (Appellant) Kells the Lawyers (First Respondent) Gadens Solicitors (Second Respondent)
CATCHWORDS:	Negligence - Breach of Duty - Causation - Medical Negligence - Chiropractic Treatment - Neck and Back Injury
CASES CITED:	Naxakis v Western General Hospital (1999) 197 CLR 269 Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 March v E & MH Stramare Pty Limited (1991) 171 CLR 506
DECISION:	Appeal dismissed with costs

CA 40412/01
SC 45/95

HANDLEY JA
SHELLER JA
BEAZLEYJA

Tuesday, 13 August 2002

MCGRODER v MAGUIRE & ANOR

FACTS

The first respondent (Mr Maguire) suffered a neck injury on 23 April 1990 in the course of his employment. Despite consulting an orthopaedic surgeon and a neurosurgeon between April 1990 and June 1992 he continued to suffer from tingling and paraesthesia in his left arm. In June 1992 he saw the appellant (Dr McGroder) in relation to his injury. The appellant was a consultant general practitioner with the first respondent’s employer.

The appellant referred the first respondent to the second respondent (Dr Ayscough), a chiropractor, without carrying out a physical examination on the first respondent and probably without referring to the first respondent’s medical records kept by his employer, to which the appellant had access.

The fist respondent attended upon the second respondent on 30 June 1992 and underwent a manipulation of his neck and back. Following this treatment, the first respondent’s back and neck deteriorated markedly. The first respondent underwent surgery, however, by June 1994 the first respondent’s neurosurgeon concluded that he was permanently unfit for work.

The first respondent brought proceedings against the appellant and second respondent. There was expert medical evidence that given the first respondent’s condition he should not have been referred for chiropractic treatment.

Dunford J held at first instance that the appellant had negligently referred the first respondent to the second respondent and that the second respondent had been negligent in his treatment of the first respondent’s back and neck. The second respondent has not appealed this decision.

The appellant claimed on appeal that his Honour erred firstly in finding that the appellant had breached his duty of care to the first respondent by making the referral to the second respondent and secondly, assuming there was a breach, in finding that the was a causal link between the breach and the acts which exacerbated the damage to the first respondent’s neck and back.

HELD per Beazley J (Handley JA and Sheller JA agreeing)