Chiropractic treatment claim

Zhang v Hardas (No 2) [2018] NSWSC 432 is a decision published today of Leeming JA, who was sitting as a trial judge in the Common Law Division of the Court for the purposes of this matter.

The court held at [106]:

My findings on the way in which Mr Hardas treated Ms Zhang are dispositive of the entire case. Even if there was a breach of duty in Mr Hardas continuing to treat Ms Zhang between February and September 2007 when she continued to develop symptoms, it is not established that any of the applications of the Activator II – a handful of times on each occasion, and never more than once or twice to any particular part of the spine – caused any physical or psychiatric injury.

The issues included:

  • whether the chiropractor fabricated clinical notes – held, no (see [73]).
  • whether the defendant chiropractor practised a profession – held, yes (see [169] – [170]).
  • whether the defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice – held obiter, yes (see [180])
  • whether a breach of duty by defendant – held, yes (see [194]) in failing to refer Ms Zhang to her general practitioner when she presented with new symptoms at the end of, and after, the course of 12 sessions.
  • whether the defendant caused harm – held no (see [200])
  • whether a limitation defence available – held no (see [207]).

As to whether a duty was owed not to cause mental harm, a detailed discussion appears in the judgment at [108] – [134], where the court concluded that the only injury established by Ms Zhang is injury which s 32 excludes from the scope of the duty of care owed to her by Mr Hardas.

The proceedings were ultimately dismissed.

 

 

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