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)

(i) The trial judge did not err in accepting the opinion of the first respondent’s neurosurgeon and orthopaedic surgeon that chiropractic treatment was contraindicated in the first respondent’s circumstances, and by finding that by making the referral to the second respondent the appellant breached his duty of care.

(ii) The negligent chiropractic treatment did not constitute a novus actus interveniens as the referral itself was negligent.

(iii) The trial judge did not err in finding a causal connection between the breach and the damage sustained by the first respondent. The appellant’s negligence “generated the very risk of injury” whereby the first respondent was subject to the subsequent negligent act that caused the damage to his neck and back: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 518-519.

ORDERS

Appeal dismissed with costs.

CA 40412/01
SC 45/95

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday, 13 August 2002

MCGRODER v MAGUIRE & ANOR

JUDGMENT

1 HANDLEY JA: I agree with Beazley JA.

2 SHELLER JA: I agree with Beazley JA.

3 BEAZLEY JA: This is an appeal by Dr McGroder from the judgment of Dunford J in which his Honour held that Dr McGroder negligently referred the first respondent to the second respondent for chiropractic treatment contrary to acceptable medical practice. Dr McGroder is a general medical practitioner. He held the position of consultant occupational health physician with British Oxygen Games Ltd, the first respondent’s employer, at the time relevant to these proceedings. The second respondent, Dr Ayscough is a chiropractor.

Facts

4 The first respondent suffered a neck injury on 23 April 1990. He was driving a truck in the course of his employment and hit his head on the roof of the cabin of the truck as he was going over a bump. After about a week the first respondent also began to suffer low back pain. He had suffered previous injury to his neck in 1987, also whilst driving his truck. He had earlier suffered injury to his neck, back and knee in 1985 when he slipped off the fuel tank of a truck. This last episode resulted in pain lasting no more than about a week.

5 After the 23 April 1990 accident, the first respondent was referred to Dr Silva, orthopaedic surgeon. The first respondent, after an initial 3 weeks off work, continued on with his employment and his usual activities. However, he continued to have the tingling and paraesthesia in his left arm. At times he felt he lost power in that arm. On 3 July 1990, he came under the care of Dr Moloney, neurosurgeon, whom he had consulted following the 1987 incident. By the time he saw Dr Moloney in July 1990, he was complaining that moving his neck caused tingling down the left arm. He also had problems with his lower back, with the pain radiating into the gluteal region. He had had some physiotherapy by then with, perhaps, “marginal improvements”. Dr Moloney did not consider that any active treatment other than physiotherapy was warranted.

6 In June 1992 the occupational health nurse observed the respondent rotating his arm, as was his habit when he experienced the tingling and paraesthesia. She suggested he see the company doctor, the appellant, Dr McGroder.

7 He saw Dr McGroder on 18 June 1992. The appellant’s notes of his consultation with the first respondent on this date read:

“History of neck pain and brachialgia 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. -> Jonathon Ayscough (take x-rays).”

The reference to Jonathon Ayscough in these notes is a reference to Dr McGroder’s decision to refer the first respondent to the second respondent.

8 During the consultation, Dr McGroder gave the first respondent a written referral to Dr Ayscough, having first telephoned him to ask whether he could see the first respondent. The referral stated:

“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.”

9 The trial judge found that during the consultation on 18 June 1992, Dr McGroder did not carry out a physical examination of the first respondent and probably did not refer to the first respondent’s medical records kept by the employer. Those records, on his Honour’s finding:

“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.”

10 The first respondent attended upon Dr Ayscough on 30 June 1992 and underwent a manipulation of his neck and back. He described the manipulation as being “violently” performed and felt his neck had been broken. Dr Ayscough directed the first respondent to obtain x-rays after he had carried out the manipulations.

11 Following Dr Ayscough’s treatment, the first respondent’s back and neck deteriorated markedly. On 3 September 1992, Dr Moloney carried out an anterior cervical discectomy and fusion. On 12 February 1993 Dr Moloney performed an L4/5 spinal posterolateral fusion, however this was unsuccessful. By July 1994 Dr Moloney had concluded that the first respondent was permanently unfit for work. He had further surgery in 2000. There is no dispute as to the extent of the first respondent’s disability.

12 The trial judge observed that:

“Both Dr Ayscough and his expert chiropractic witness, Dr Kelly, conceded that if the manipulations of the neck and/or back were carried out as described by the [first respondent] they were not carried out in accordance with proper chiropractic practice.”

13 As his Honour accepted the first respondent’s evidence as to how the manipulations were carried out, it followed that Dr Ayscough had been negligent in his treatment of the first respondent’s back and neck. Dr Ayscough has not appealed from his Honour’s determination against him.

Trial Judge’s Finding Against the Appellant

14 His Honour found that the first respondent consulted Dr McGroder only in respect of his neck. Therefore, his liability, if any, was limited to the injury to the neck. His Honour found that Dr McGroder:

“… did not physically examine the [first respondent], he either did not look at the [first respondent’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 foramina bilaterally which, along with the numbness in his arms and pins and needles in his fingers, indicated nerve root irritation in his cervical spine … a finding provisionally confirmed by Dr Ayscough when he saw him …”

15 His Honour accepted the opinion of Dr Moloney and that of Dr Bornstein, orthopaedic surgeon that, given the brachialgia and radiating pain, it was not acceptable medical practice to refer the first respondent to a chiropractor. In reaching that conclusion, his Honour rejected Dr McGroder’s claim that he had not necessarily referred the first respondent to the second respondent for treatment. His Honour said:

“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.”

Issues on the Appeal

16 Two matters were pressed on the appeal. First, it was submitted that Dr McGroder had not breached his duty of care to the first respondent by reason of the referral, its terms and the circumstances in which it was given. Secondly, assuming there was a breach, it was submitted there was no causality between the breach and the acts which exacerbated the damage to the neck.

Was There a Breach of Duty of Care?

17 It was submitted on behalf of Dr McGroder that the appropriate standard of care to be applied in determining the question of breach was as described by Gaudron J in Naxakis v Western General Hospital (1999) 197 CLR 269 at 275:

“the standard of care owed by persons possessing special skills is that of ‘the ordinary skilled person exercising and professing to have that special skill [in question]’.”

It was submitted that in this case this meant that Dr McGroder’s conduct was to be determined by reference to the standard of care applicable to a general practitioner. He was not to be adjudged by reference to the practice of orthopaedic surgeons or neurosurgeons as the trial judge had allegedly done.

18 It was then submitted that judged on this standard, the scope of Dr McGroder’s duty was to refer the respondent to an experienced and competent chiropractor for examination. It was then for the chiropractor to make a full examination and assessment aided by x-rays and proceed to treatment if, in the opinion of the chiropractor, that was the appropriate course.

19 Notwithstanding that the appellant’s case was that the standard of care by which he was to be adjudged was that of a general practitioner, he did not call any expert medical evidence, and in particular did not call evidence from a general practitioner to support his case. Rather, he relied upon the report of Mr Kelly, chiropractor. Mr Kelly was retained by Mr Ayscough to give an opinion as to the appropriateness of the treatment given to the first respondent. Mr Kelly considered that the treatment administered was appropriate. However, that opinion begs the question as the issue in the case, insofar as it related to the liability of Dr McGroder, was the appropriateness of the referral at all. Mr Kelly did not deal with nor would he be qualified to deal with that question.

20 That left the evidence of Drs Moloney and Bornstein, both specialist medical practitioners. Dr Moloney, in his report of 18 November 1999, said:

“Cervical spine manipulation in the face of radicular symptoms (ie arm pain) is totally contraindicated and totally indefensible for members of the medical profession. It is my believe (sic) that many chiropractors do not have a clear understanding of the pathological processes that they are treating.”

21 He had earlier explained:

“If [patients] have pain radiating into the arm or into the leg or around the thoracic cage I explain to them that this is an indication that the nerve root is entrapped in it’s exit foramen and that there is an inflammatory response and that the nerve is probably inflamed, swollen and jammed in an already compromised foramen. If in the light of this, one manipulates the neck, the nerve which is normally free to move to and fro in the intervertebral foramen can be torn or permanently damaged by over stretching.
I know that it is chiropractic practice to manipulate patients who have arm pain and leg pain but to my mind it is a dangerous practice.”

22 Dr Bornstein provided a number of reports on the issue. In his report of 19 February 1999, he said:

“In response to your letter of the 17th instant with enclosures I would advise that in the presence of radiologically demonstrated changes in a person’s neck or back and in particular when a person has radiating symptoms into a limb I believe it inappropriate that chiropractic or any other kind of manipulative treatment be undertaken whether it be by an orthopaedic surgeon, a neurosurgeon, a physiotherapist or a chiropractor.
…
In the circumstances it is my view especially with radiating discomfort that it was entirely inappropriate to refer this patient to a chiropractor in the first place.”

23 In a further report of 23 February 1999, Dr Bornstein was requested to comment on the report of Mr Kelly, chiropractor, whom Dr Ayscough had retained to provide expert evidence. Dr Bornstein said:

“In regard to the report of Mr Kelly Chiropractor under his heading of Examination on page 3 he states that there was a restriction of the C,5 deep tendon reflex on the right. This already implies a disc protrusion at the C,5,6 level.
At that point the chiropractor should not have proceeded to manipulation.”

24 Dr Bornstein’s opinion went further than Dr Moloney’s in that he considered that manipulation was contraindicated in a degenerative spine, from which the first respondent also suffered, let alone in a condition involving brachialgia. His view was finally reiterated in his report of 20 March 2000:

“The patient already did have degenerative changes and in fact was experiencing neurologic symptoms referred into an arm suggestive of disc injury at the time of his referral.
Chiropractic [treatment] is totally contraindicated in those circumstances.”

25 Dr McGroder sought to make a number of attacks on these opinions. First, he claimed the opinions reflected a bias by medical practitioners towards chiropractors. Certainly, Dr Moloney expressed a view that chiropractors were known to treat inappropriately (see para 18 above) and Dr Bornstein stated that if the views expressed by Dr Kelly as to standard chiropractic education in Australia in relation to the appropriateness of manipulation of anatomically abnormal spines (for example, degenerative spines or spines where there were indications of nerve root entrapment) were accurate, then “the education is clearly incorrect”. However, even a stringently critical expression of opinion is not of itself reflective of bias. Something more would be required. Here nothing more was demonstrated.

26 Next, Dr McGroder attempted to draw a distinction between neurological symptoms and signs. He said that although the first respondent had symptoms, he did not have ‘signs’ and therefore there was no neurological deficit. In the absence of neurological deficit, he considered the referral to the chiropractor was appropriate. His Honour found this distinction to be unconvincing. This was not surprising given the evidence of Drs Moloney and Bornstein in the passages quoted above.

27 A case had been put forward at trial and urged again on appeal that when Dr McGroder referred the respondent to Dr Ayscough he had done so for assessment for appropriate treatment, if any, and that chiropractic treatment ranged from physiotherapy treatment to manipulation. The point of the submission was that, because of the potential range of treatment which might be given, it was not inappropriate to refer the respondent to a chiropractor. In this regard, the appellant attempted to corral Dr Moloney’s and Dr Bornstein’s evidence so that it only related to the inappropriateness of the referral for manipulation.

28 Dr Bornstein did accept that a chiropractor might treat other than by manipulation, for example by gentle massage and heat treatment such as administered by a physiotherapist. However, the concession did not, in my opinion, assist Dr McGroder’s case. Dr McGroder’s evidence was clear. The treatment he contemplated that Dr Ayscough would provide was a “hands-on treatment which could be described as manipulation” and that the type of “help” he had in mind in referring him was “active treatment”. In his own experience of being treated by Dr Ayscough and having referred other patients to Dr Ayscough, he only knew of him having applied a “hands-on approach”, that is, some form of manipulation and perhaps the application of a hot pack sometime during the treatment. Dr McGroder also conceded that in referring the respondent to Dr Ayscough he was not contemplating the use of physiotherapy methods.

29 The trial judge rejected this aspect of the appellant’s argument and found that there was a breach of the appellant’s duty of care. It was clearly open to do so on the evidence of Drs Moloney and Bornstein. Their evidence was unequivocal. It was that the referral was inappropriate. There was no suggestion in their evidence that they were applying a standard applicable only to a specialist practitioner. They were not cross-examined to the effect that their opinions were based on the knowledge of a specialist rather than that of a general practitioner. No error has been demonstrated in his Honour’s finding on this point.

Was the Breach Causative of Damage

30 Dr McGroder submitted alternatively that even if his Honour was correct in finding there had been a breach of duty, there was no causal connection between breach and the damage sustained by the respondent.

31 The nub of this submission was that the negligent treatment by Dr Ayscough constituted a novus actus interveniens as it was of such an excessive or grossly negligent nature so as not to be a reasonably foreseeable consequence of the referral. The appellant relied upon Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522 at 530, where the Court said:

“… in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is ‘inexcusably bad’ ( Martin v Isbard (1946) 48 WALR 52 at 56), or ‘completely outside the bounds of what any reputable medical practitioner might prescribe’ ( Lawrie v Meggitt (1974) 11 SASR 5 at 8) or ‘so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury’ ( South Australian Stevedoring Co Ltd v Holbertson [1939] SASR 257 at 264) or ‘extravagant from the point of view of medical practice or hospital routine’: Hart and Honore, Causation in the Law (1959), p 169. In such a case, it is proper to regard the exacerbation of a plaintiff’s condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation.”

32 Mahony was a case where an employee claimed damages from his employer for personal injury suffered in the course of his employment. The employer brought a cross-claim against Dr Mahony, one of the employee’s treating doctors, alleging that he had negligently treated the employee and thus caused or contributed to the continuing injuries and incapacities for which the employee had sued the employer. The cross-claim had been struck out but restored on appeal to the Court of Appeal. In dismissing the appeal, the Court at 527 explained that:

“In negligence, ‘damage’ is what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission. Where a tortfeasor’s negligent act or omission causes personal injury, ‘damage’ includes both the injury itself and other foreseeable consequences suffered by the plaintiff. … concurrent tortfeasors whose negligent acts or omissions occur successively rather than simultaneously may both be liable for the same damage, being a foreseeable consequence of both torts…”

33 The Court at 528-529 then dealt with the legal consequence for a negligent tortfeasor of a subsequent injury:

“A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor’s negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M’Kew v Holland & Hannen & Cubitts 1970 SC (HL) 20 at 25. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor’s negligence alone: see Chapman v Hearse (1961) 106 CLR 112 at 124-125. Whether such a line can and should be drawn is very much a matter of fact and degree. …
…
Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury…”

34 The Court went on to consider (at 530) whether negligence in medical treatment, reasonably sought or accepted, constituted a novus actus interveniens and concluded that it depended upon the circumstances and was a matter about which minds could differ. It could be, they said, “the very kind of thing which is likely to happen as a result of the first tortfeasor’s negligence” - the original injury being regarded “as carrying some risk that medical treatment might be negligently given”. However, medical negligence could in some circumstances amount to a new cause of incapacity. In stating the principle in these terms, the Court considered as “too rigid” the test propounded by Lord Reid in his dissenting judgment that there is a break in the chain of causation only when a doctor is guilty of such negligence as would make him liable in damages.

35 This case however does not involve medical or other treatment given after a negligently caused accident. Rather, the act of negligence itself placed the first respondent in the position where he was subjected to the subsequent negligent act. Put another way, but for the negligent referral the appellant would never have had chiropractic treatment. Could it be said in that circumstance that the initial tortious act was not causally related to the injury sustained. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Mason CJ observed at 514:

“… the law’s recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are ‘caused or materially contributed to’ by the defendant’s wrongful conduct: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417 per Gibbs J; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 per Mason J; Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620 per Lord Reid; McGhee v National Coal Board [1973] 1 WLR 1 at 4, 6, 8, 12. Generally speaking, that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent : see ICIANZ Ltd v Murphy (1973) 47 ALJR 122 at 127-128. But, as the decision in that case illustrates, it is often extremely difficult to demonstrate what would have happened in the absence of the defendant’s negligent conduct.” (emphasis added)

His Honour then remarked, at 515, whether or not causation has been established is a question of fact which “must be determined by applying common sense to the facts of each particular case” .

36 His Honour also dealt with the “but for” test. Having earlier stated at 508 that, in his view, that test had never been and should not become the exclusive test of causation in negligence, he considered at 515-6 that it had an important role to play as a “negative criterion”. At 516 his Honour said:

“The commentators acknowledge that the ‘but for’ test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater…”

His Honour further explained at 517:

“The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries are not a consequence of the defendant’s negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from a deliberate or voluntary conduct or even to guard against that risk … To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.”

37 His Honour concluded at 518-519:

“As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things . In such a situation, the defendant’s negligence satisfies the ‘but for’ test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.” (emphases added)

38 In my opinion, that is this case. The first respondent’s injuries would not have occurred had he not been treated by a chiropractor. He was only treated by a chiropractor because of Dr McGroder’s referral. That referral was negligent. His negligence generated the risk of injury by referring him for inappropriate treatment. It is no answer that the treatment was administered negligently.

39 Accordingly, I am of the opinion that the trial judge was correct and the appeal should be dismissed with costs.

**********