Kocev v Toh [2009] NSWDC 169

Kocev v Toh [2009] NSWDC 169

The first defendant performed a conservative QL stretch following heat therapy, ultrasound and massage, not the forceful manipulation or adjustment alleged by the plaintiff. That treatment was in accordance with acceptable professional standards of competent chiropractic practice and, in any event, was widely accepted in Australia by peer professional opinion as competent professional practice under s 5O of the Civil Liability Act 2002. The plaintiff also failed to prove that the treatment, rather than his pre-existing lumbar pathology or the work incident on 5 June 2006, caused the injury complained of.

Jurisdiction
Australia
Judgment Date
09 July 2009
Procedural Posture
Civil Professional Negligence Claim Against Chiropractor / Judgment After Trial; Action Settled as Between Plaintiff and Second Defendant
Outcome
Verdict for the first defendant against the plaintiff; first defendant not liable in negligence. Action settled as between plaintiff and second defendant. Costs reserved for further hearing.
Legal Topics
['chiropractic Treatment' 'standard of Care for Professionals' 'peer Professional Opinion Defence' 'causation' 'quantification of Damages' 'workers Compensation Deductions' 'pre Existing Spinal Injury']
['torts' 'professional Negligence' 'civil Liability' 'workers Compensation' 'damages'] ['chiropractic Treatment' 'standard of Care for Professionals' 'peer Professional Opinion Defence' 'causation' 'quantification of Damages' 'workers Compensation Deductions' 'pre Existing Spinal Injury']

Case Brief

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Procedural Posture

Civil Professional Negligence Claim Against Chiropractor / Judgment After Trial; Action Settled as Between Plaintiff and Second Defendant

Legal Issues

  1. 1 ["Whether the first defendant performed a negligent manipulation or adjustment, or a conservative QL stretch, on the plaintiff's lumbar spine on 16 June 2006." "Whether the treatment was contraindicated given the plaintiff's history of lumbar surgery and back problems." "Whether the first defendant's treatment complied with acceptable professional standards of competent chiropractic practice." 'Whether the defence under s 5O of the Civil Liability Act 2002 was established.' "Whether any breach of duty caused the plaintiff's later disc protrusion, surgery and disabilities." 'How damages would be quantified if liability had been established, including deductions for workers compensation benefits and pre-existing back problems.']

Ratio Decidendi

The first defendant performed a conservative QL stretch following heat therapy, ultrasound and massage, not the forceful manipulation or adjustment alleged by the plaintiff. That treatment was in accordance with acceptable professional standards of competent chiropractic practice and, in any event, was widely accepted in Australia by peer professional opinion as competent professional practice under s 5O of the Civil Liability Act 2002. The plaintiff also failed to prove that the treatment, rather than his pre-existing lumbar pathology or the work incident on 5 June 2006, caused the injury complained of.

Court Disposition

Verdict for the first defendant against the plaintiff; first defendant not liable in negligence. Action settled as between plaintiff and second defendant. Costs reserved for further hearing.

Orders

  • ['Verdict for the first defendant against the plaintiff.' 'Parties to be heard on costs before final orders are made.' 'To the extent relevant, if liability in negligence of the first defendant had been found, damages are quantified in the amount of $171,222.04.']