Kocev v Toh [2009] NSWDC 169

New South Wales District Court

CITATION: Kocev v Toh [2009] NSWDC 169

HEARING DATE(S): 22-24 and 27-28 April 2009 and 5 June 2009

JUDGMENT DATE: 9 July 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To the extent relevant, if liability in negligence of the first defendant had been found, damages are quantified in amount of $171,222.04. Action settled as between plaintiff and second defendant.

CATCHWORDS: TORTS - Professional negligence - Chiropractor - Treatment by muscle stretch in lumbar spine - Whether a mobilisation or a manipulation (adjustment) - Pre-existing spinal injury - Whether treatment contraindicated - Whether actual treatment peformed negligently - Whether treatment in accordance with acceptable professional standards of competent chiropratic practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Quantification of damages - Effect of prior and likely future payments of workers compensation benefits - Discount to recognise recurrence of prior back problems regardless of chiropractic treatment

LEGISLATION CITED: Civil Liability Act 2002, ss 5O and 16 Workers Compensation Act 1987, ss 40, 60, 66, 67 and 151Z(1)

Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Dobler v Halverson [2007] NSWCA 335 Flounders v Millar [2007] NSWCA 238 Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 CASES CITED: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Morris v Hanley [2003] NSWSC 42 Najdovski v Crnojlovic [2008] NSWCA 175 Rooty Hill Medical Centre v Gunther [2002] NSWCA 60 Transfield Pty Ltd v Mastrioanni (1998) 20 NSWCCR 193