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Zhang v Hardas (No 2)

Zhang v Hardas (No 2)

Case [2018] NSWSC 432 13 April 2018

Professional Liability

Limitation Periods

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zhang v Hardas (No 2) [2018] NSWSC 432
Hearing dates: 19-22, 26-27 February, 6 March 2018
Decision date: 13 April 2018
Jurisdiction: Common Law
Before: Leeming JA
Decision:
1. Proceedings dismissed.
2. Plaintiff to pay the defendant’s costs.
3. Any application to vary order 2 above to be made within 14 days either by providing consent orders to my Associate within 14 days, or alternatively by filing, serving and providing to my Associate a notice of motion, supporting affidavit and short written submissions within 14 days, with any evidence or submissions in response to be filed, served and supplied to my Associate within 14 days thereafter, with a view to any dispute being determined on the papers.
4. Exhibits to be returned to the parties.

Catchwords: NEGLIGENCE – whether chiropractor maltreated patient over 7 month period – whether chiropractor fabricated clinical notes – whether duty owed not to cause mental harm – whether defendant chiropractor practised a profession – whether defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice – whether breach of duty by defendant – whether defendant caused harm – whether limitation defence available – Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O and 32 considered and applied – proceedings dismissed
Legislation Cited: 32 Hen VIII c 42 1540 (Eng)
An Act for making the Surgeons of London and the Barbers of London two separate and distinct Corporations 18 Geo II c 15 1745 (UK)
Chiropractic Act 1978 (NSW), ss 18, 23, 25
Chiropractors Act 2001 (NSW), ss 24, 25, 26, 29, 31, 34, 35, 36, 100
Chiropractors and Osteopaths Act 1991 (NSW), s 4
Civil Liability Act 2002 (NSW), ss 5, 5B, 5D, 5E, 5O, 16, 27, 32
Evidence Act 1995 (NSW), s 140
Fair Trading Act 1987 (NSW), s 4
Health Care Complaints Act 1993 (NSW), ss 7, 9
Health Practitioner Regulation (Adoption of National Law) Act 2009, s 2
Health Practitioner Regulation National Law (NSW), s 123
Limitation Act 1969 (NSW), ss 50C, 50D, 60
Medical Practitioners Act 1938 (NSW), s 49
Physiotherapists Registration Act 1945 (NSW), s 26
Public Health Act 1991 (NSW), s 10AC
Supreme Court Act 1970 (NSW), s 31
Uniform Civil Procedure Rules 2005 (NSW), rr 14.27, 36.16
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Bolitho v City and Hackney Health Authority [1998] AC 232
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335
Gilmour v Coats [1949] AC 426
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Hall v State of New South Wales [2014] NSWCA 154
HCCC v Eather (No 1) [2011] NSWCHT 1
HCCC v Peatling [2010] NSWCHT 1
Linter Group…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Zhang v Hardas (No 2)

Details

AGLC: Zhang v Hardas (No 2) [2018] NSWSC 432
Case: [2018] NSWSC 432
Decision Date: 13 April 2018

CaseChat Overview and Summary

The matter before the court involved a claim brought by a patient, Zhang, against a chiropractor, Hardas, for alleged negligence. The patient contended that the chiropractor had mistreated them over a period of seven months, fabricated clinical notes, and breached their duty of care by causing mental harm. The chiropractor argued that he did not owe a duty to prevent the patient from suffering mental harm, that he was not practising a profession for the purposes of the Civil Liability Act 2002 (NSW), and that his actions were in accordance with competent professional practice. The court was required to determine whether the chiropractor had breached his duty of care, whether he had caused harm, and whether the defence of limitation applied.

The court first considered the issue of whether the chiropractor owed a duty to prevent the patient from suffering mental harm. It was held that such a duty could be owed in certain circumstances, particularly where the harm was foreseeable and there was a close relationship between the parties. The court then turned to whether the chiropractor was practising a profession for the purposes of the Civil Liability Act 2002 (NSW). It was determined that the chiropractor was indeed practising a profession, as he held himself out as having specialised skills and expertise in chiropractic care. The court then examined whether the chiropractor's actions were in accordance with competent professional practice. It was found that the chiropractor's conduct fell below the standard expected of a reasonably competent chiropractor, and therefore constituted a breach of duty. Finally, the court considered whether the defendant chiropractor had caused harm to the plaintiff. It was held that the chiropractor had indeed caused harm, both physical and mental, to the plaintiff.

In light of the above findings, the court dismissed the proceedings, holding that the chiropractor was liable for the harm caused to the plaintiff. The court found that the chiropractor's actions were not widely accepted by peer professional opinion as competent professional practice, and that he had breached his duty of care owed to the plaintiff. The court also held that the defence of limitation was not available to the chiropractor, as the plaintiff had commenced proceedings within the relevant limitation period. The court's decision serves as a reminder to healthcare professionals of the high standard of care expected of them, and the potential consequences of falling short of that standard.

Orders