Zhang v Hardas (No 2)

1. [1]

   LEEMING JA: By statement of claim filed 2 August 2013, Ms Yingjie Zhang sues Mr George Hardas, chiropractor, alleging that his negligence in the course of some 19 treatments performed by him, between February and September 2007, have caused her damage, especially, psychiatric injury.

2. [2]

   The hearing took place over six days in February 2018, followed by an exchange of written submissions and half a day of oral addresses the following week. I heard the trial exercising the powers of a Judge of this Court in accordance with s 31(3) of the Supreme Court Act 1970 (NSW). The delay between commencement and the hearing has been regrettably long. Some explanation for that may be found summarised in the interlocutory decisions in Zhang v Hardas [2017] NSWSC 876 and [2018] NSWSC 219. At least in large measure, it has been attributable to a series of changes in Ms Zhang’s legal representation (she has retained six solicitors to date) and delays in providing and serving her lay and expert evidence. However, it should be said at the outset that Ms Zhang’s serious psychiatric condition – which both sides accept and which on her case was caused by Mr Hardas’ treatment – has contributed to the delay. Nothing turns on this save to explain why the events in this litigation occurred more than a decade ago, with the concomitant difficulties of imperfect recollections.

Overview of factual and legal issues

1. [3]

   There is a large factual issue, involving extremely serious findings, attracting the strictures in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act 1995 (NSW) as to what occurred when Mr Hardas treated Ms Zhang. Ms Zhang’s recollection of Mr Hardas’ treatment is completely at odds with Mr Hardas’ clinical notes. She maintains that his notes are a fabrication, prompted by a complaint she made to the Health Care Complaints Commission. Mr Hardas denies this, but has no actual recollection of treating her.

2. [4]

   A distinct area of dispute arises with the expert orthopaedic evidence of Dr Cooke (the principal expert called by Ms Zhang). Mr Hardas contends that his evidence should be rejected in its entirety because of his disregard of his role as an expert or for “academic dishonesty”.

3. [5]

   The legal issues are also somewhat more complex than is usual. The principal issues are as follows.

   1. (1)

      What duty did Mr Hardas owe to Ms Zhang when treating her, and in particular, insofar as there might otherwise be a duty to take care not to cause her mental harm, ought Mr Hardas have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness as a result of Mr Hardas’ treatment within the meaning of s 32 of the Civil Liability Act 2002 (NSW)?

   2. (2)

      Was Mr Hardas practising a profession for the purposes of s 5O of the Civil Liability Act 2002 (NSW)? If so, did his treatment accord with what was widely accepted in Australia by peer professional opinion as competent professional practice? If not, did it amount to breach of a duty of care owed by him to her?

   3. (3)

      Did Mr Hardas’ treatment cause, within the meaning of s 5D of the Civil Liability Act, damage to Ms Zhang?

   4. (4)

      Was Ms Zhang’s causes of action “discoverable”, within the meaning of s 50D of the Limitation Act 1969 (NSW), within three years of her commencing proceedings?

Overview of the parties’ evidence

1. [6]

   It is convenient to record immediately a number of unusual aspects in the parties’ evidence. Ms Zhang and Mr Hardas had each prepared one substantial and one supplementary witness statement, to which they adhered. Their oral evidence was almost entirely confined to cross-examination, lasting in each case somewhat more than a day.

2. [7]

   First, Ms Zhang is evidently highly intelligent and highly educated. She was born in 1973 in Beijing where she completed primary school, high school and obtained a five-year bachelor degree in medicine at a university in that city. Both of her parents had university degrees (in engineering and mathematics) while other family members were medical practitioners. Her grandfather was an ear, nose and throat surgeon who was head of the largest hospital in Beijing for many years. One of her uncles was a very well-known surgeon, while an aunt was an anaesthesiologist.

3. [8]

   Ms Zhang came to Australia in 1997, and, subject to some absences in Brazil and the Philippines (as to which see below), she has lived here ever since. She did not wish to pursue a career in medicine. After completing a Masters of Business Administration from the University of Technology in Sydney, she held a number of full-time jobs in the IT industry, including with SSA Global, Equant (later known as Orange Business Services, which provided IT&T services to the air transport industry), British Telecom and Telstra. During this period, she obtained certification as a Cisco Certified Network Professional.

4. [9]

   Following her treatment with the defendant, Ms Zhang has very substantially ceased working altogether. The evidence is that her prospects of returning to the workforce are highly qualified. For example, Professor Anderson, called by the defendant, said that Ms Zhang has “a severe functional neurological disorder or abnormal illness behaviour” and regarded “the prognosis for her returning to a ‘normal productive and symptom-free life’ is poor”. Her claim for economic loss is very large.

5. [10]

   Secondly, Ms Zhang’s evidence about the treatment she received, and the symptoms from which she suffered, was in large measure given using technical anatomical and medical terms. She is medically trained and she has seen a large number of medical practitioners, other health professionals and practitioners of alternative medicine who have attempted to diagnose and treat her symptoms. Ms Zhang’s command of spoken English is very good, although less than perfect. On occasion she confused male and female pronouns (presumably because her native language is Mandarin) but the impression I gained was of a witness who, for the most part, well understood the nuances that are an inevitable aspect of most cross-examination. She gave her evidence relatively calmly and precisely, in the presence of a qualified translator, although save on one occasion, the translator was not used.

6. [11]

   In particular, Ms Zhang was acutely aware of the distinctions between (a) the symptoms she suffered from time to time, (b) the words she had used to describe those symptoms to a medical or health care practitioner, and (c) the inevitability of discrepancies between what that practitioner was told and what was recorded in a contemporaneous note or in a subsequent report. Busy medical practitioners will commonly fail to record all aspects of what in any event may be an imprecise history, and their training will shape what is recorded and how it is recorded. None of this is controversial; it is notorious and inevitable.

7. [12]

   Ms Zhang was aware that her recollection of what she felt, and said, diverges from a number of contemporaneous reports by treating practitioners. Her evidence was consistent with her having committed to memory the entirety of the detail in her statement (which is 1061 paragraphs and which was evidently composed primarily by Ms Zhang personally) and many of the central contemporaneous documents.

8. [13]

   Thirdly, there is no dispute that, for at least the last year or so, and quite possibly for years longer, Ms Zhang suffered from a serious psychiatric illness. Not only is that part of her case, but it is the joint evidence of the amply qualified psychiatrists retained by both parties. Associate Professor Michael Robertson and Associate Professor Jonathan Phillips agree that Ms Zhang has many features of depression spectrum disorder, which is “probably a major depressive disorder”. They share a “probable” diagnosis of a somatic symptom disorder. They say that both major depressive disorders somatic and symptom disorders are recognisable psychiatric disorders within the DSM-5 terminology. They note that there is an apparent temporal relationship between the treatment by Mr Hardas and the onset of her ongoing psychopathology.

9. [14]

   Their opinion comes with an important qualification, which is that it is improbable that Ms Zhang had been a person of normal emotional fortitude prior to 2007. Obviously, that opinion is given with the benefit of hindsight.

10. [15]

    In 2007, Mr Hardas had been registered and had practised as a chiropractor for some 16 years. He held a Bachelor’s degree in Science from the University of Sydney, a Master of Chiropratic from Macquarie University and a Graduate Certificate in Pain Management from the University of Sydney. Subsequently to treating Ms Zhang, he has received a Master of Science in Medicine (Pain Management) in 2013 and a Master of Medicine (research) in 2015. The subject of the latter was the Activator instrument (I will return to this research, and the Activator instrument and technique, below).

11. [16]

    Mr Hardas presently practises from Ingleburn and St George Private Hospital, Kogarah. In 2007, he treated Ms Zhang at his Kogarah practice.

12. [17]

    Mr Hardas speaks idiomatic and informal Australian English. His affidavit bears the hallmarks of the close involvement of his legal team. His letter to the Health Care Complaints Commission responding to Ms Zhang’s complaint more accurately records his way of speaking. For example:

13. [18]

    Repeatedly (and no differently from many lay witnesses) he answered a different question – one to which the cross-examiner was heading – rather than the precise question he was asked. He was present in court throughout Ms Zhang’s cross-examination, as was his right, and must have appreciated that he would be accused of fabricating his records and maltreating her. When that occurred, he responded with understandable but largely unhelpful hostility. Parts of his evidence were belligerent and dogmatic, combining a sense of incredulity and indeed outrage that it could be suggested that he had done what Ms Zhang said he had done.

14. [19]

    Mr Fordham, who with Mr O’Neill appeared for Mr Hardas, candidly described him thus: “I’ll be the first to admit that the defendant wasn’t the most impressive witness I’ve ever called”. That assessment was accurate.

15. [20]

    Hence it was not unreasonable for Mr Barry, who with Ms Grotte appeared for Ms Zhang, to invite me to place considerable weight upon my assessment of the parties’ demeanour. I have borne that invitation in mind. However, I think that this is a case where my impression of the veracity and reliability of the parties when giving evidence is of relatively slight weight.

16. [21]

    People react to cross-examination in different ways. Ms Zhang was a woman who is well practised in describing her medical history and her symptoms. By that I mean no criticism, but only that she has described her history and symptoms to dozens of practitioners, and she is also familiar with precise technical terminology. She is also a woman who is psychiatrically unwell. For his part, Mr Hardas faces very serious allegations. He said, and it was not contradicted, that this is the only time a complaint has been made to the Health Care Complaints Commission concerning him.

17. [22]

    It is difficult to assess the effect of nearly five years of litigation upon both parties. I do not think it is controversial that the longer a claim involving professional negligence or malpractice (and Ms Zhang’s allegations certainly extend to both negligence and malpractice) is left undetermined, the greater the stress to both parties: see M Keet, H Heavin and S Sparrow, “Anticipating and Managing the Psychological Cost of Civil Litigation” (2017) 34 Windsor Yearbook of Access to Justice 73 at 82-83 (citing recent United States literature to that effect).

18. [23]

    I have considered the evidence as a whole. I have had regard to Atkin LJ’s observation in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 LIoyds LR 140 at 152 that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”. There are very few cases where there are not some facts which are incontrovertibly established by independent contemporaneous documents or other records, in light of which disputed testimonial evidence is to be weighed. Equally obviously, testimonial evidence is affected by the passage of time, the intervention of the litigation process and both conscious and subconscious review and reconstruction, as McClelland CJ in Eq observed in Watson v Foxman (1995) 49 NSWLR 315 at 319. I have adopted the course suggested by Keane JA in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], himself following what this Court had said in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28]-[29]:

19. [24]

    Ultimately I have concluded that demeanour in this case is a largely neutral factor in determining the primary questions of disputed fact, which is what happened to Ms Zhang when she was treated by Mr Hardas in 2007, and whether that is accurately recorded in his clinical notes. My general impression that Ms Zhang was more attentively and faithfully seeking to give truthful answers than Mr Hardas is not sufficient to persuade me that her evidence is wholly reliable, given the matters to which I shall refer below.

The Activator II and “Activator Methods”

1. [25]

   Since 1994, Mr Hardas has attended a series of seminars on a technique known as “Activator Methods”. He holds numerous instructor certificates in “Activator Method Chiropractic Technique”. The certificates are issued by a company known as Activator Methods International Ltd. Some state that “Arlan W Fuhr, DC” is the “Co-Founder and CEO”, and the evidence is clear that he was associated with creating and marketing the technique with which Mr Hardas was certified and which he said he employed on Ms Zhang.

2. [26]

   There are a number of “Activator” devices available for purchase. I gather that some are “authentic” and bear a trademark; others are copies. Mr Hardas used an “Activator II”. It is pictured below.

3. [27]

   The device is spring-loaded, and activated by pressing a handle on the instrument’s shank. It delivers a controlled, repeatable force to its rubber tip. The force may be altered by adjusting a ring to one of five settings. Because the tip presents a small surface area, the force delivered is large (the same phenomenon may be observed in the force applied through the stiletto heel of a woman’s shoe). At the highest setting, the Activator II is said to deliver a force equivalent to 165 newtons on a “stiff tissue analog” and 70 newtons on a “soft tissue analog”. At its lowest setting, the force delivered is said to be 70 and 20 newtons respectively. The document providing those forces (Exhibit H) was sourced from a presentation by Activator’s Co-Founder and CEO, and states: “The values listed are the output forces generated when applying our adjusting instruments to human tissue analogs that span the range of human spinal flexibility”. The document did not explain how at the lowest level, the force delivered on a stiff tissue analogue was more than triple the force delivered on a soft tissue analogue, but at the highest level, it was only slightly more than double; nothing turns on this. It suffices to say that the forces are considerable. They need to be. The point of the device is for it to apply sufficient force to move bones in the spine.

4. [28]

   Apparently there is a book called or known as “Activator Methods”. The book was not in evidence. Apparently, it describes a moderately prescriptive rule-based set of procedures to follow. It is not necessary to reproduce the uncontroversial evidence as to the procedures in complete detail; what follows is sufficient to appreciate its tenor.

5. [29]

   After performing a series of tests (including observing the patient’s spine when walking, standing, sitting and rotating his or her head, and a series of movements of the head and neck, palpating the area said to be in pain, walking on the patient’s heels or toes and leg-raising) a patient will then be directed to lie face down on a treatment table. The essential steps were as follows.

   1. (1)

      First, in order to determine which side of the spine to apply treatment, “pelvic deficiency/functional short leg/leg length inequality” is assessed. This involves estimating any leg length inequality when the patient is lying prone (“position 1”), and then bending his or her legs at the knee to 90 degrees (“position 2”) to see if there is a change in the leg length inequality at that position. The change in leg length indicates the side of the body to be treated.

   2. (2)

      Secondly, the patient is then asked to perform various movements, as a result of which an “adjustment” is made. The adjustment mostly involves an application of the Activator device to a particular portion of the lumbar, thoracic or cervical spine.

   3. (3)

      Two examples, taken verbatim from Mr Hardas’ statement, are as follows:

   4. (4)

      An “adjustment” is an application of the Activator device. The device is applied at maximum force (5 rings) for the larger vertebrae in the lumbar and cervical spine, at 2 rings for C2-C7, and at the lowest force (1 ring) for C1. The “adjustment” is generally a single application of the Activator. (In the case of the scapula and the pelvis, the adjustment comprises three applications at three points.)

   5. (5)

      In the case of adjustments to the lumbar, thoracic and cervical spine, the device is placed close to the spine and released once. In addition to the impulse from the device, there is a distinctly audible “click” as the spring is released.

   6. (6)

      Consequently, the actual physical treatment administered by a chiropractor following “Activator Methods” will tend to amount to a very small number of applications of the Activator device on the patient’s spine, pelvis or scapula. For example, according to Mr Hardas’ treatment notes, on Ms Zhang’s first visit on 26 February 2007, he applied the Activator to her pelvis, L5, T12, T6 and C5 vertebrae and nowhere else – that is to say, precisely seven times.

6. [30]

   Dr Cooke’s opinion is that “there is no credible evidence as to the distance and direction achieved by the Activator II in mobilising the ‘subluxed’ apophyseal joints in the cervical spine.” The theory underlying the “Activator Method” seems to involve the idea that a patient’s symptoms reflect his or her spine having become moved out of proper position (“subluxed”), thereby interfering with other structures, especially the sympathetic nervous system. This “subluxation” is sought to be addressed or corrected by applying force. I am not to be taken as expressing a view one way or the other as to there being a rational basis for the “Activator Method” in particular or chiropractic treatment more generally. The point of attempting to explain the underlying theory is twofold. First, it is to provide the context for the main factual issues. Secondly, it is to observe that the point of the Activator (and indeed the point of manual manipulation of the spine by a chiropractor) is to cause parts of the spine to be displaced. Necessarily, that means that the force to be applied must be considerable – enough to move a person’s bones. Hence the capacity to deliver 165 newtons of force.

What treatment did Mr Hardas provide to Ms Zhang?

1. [31]

   There is a stark dispute over many aspects of the treatment performed by Mr Hardas in 2007. For example, at their first consultation, Mr Hardas says that, in accordance with the procedure and corroborated by his clinical notes, he applied the Activator on precisely seven occasions to her pelvis, lumbar, thoracic and cervical spine. Ms Zhang says that he applied the device hundreds of times to her cervical spine, and that he did not ask her to perform the various movements mentioned above.

2. [32]

   Testimonial evidence on that dispute is limited in three ways, in addition to what has been mentioned above.

3. [33]

   First, on each occasion that Mr Hardas performed chiropractic upon Ms Zhang, she was lying, face down, on a couch or bed in Mr Hardas’ rooms in St George Private Hospital, with her head supported by two cushioned pillows, permitting her to look downwards. She could observe with her eyes no part of the treatment performed by Mr Hardas, except if and when he asked her to place her head on its side. Of course, she would have heard the clicks and felt the impacts generated by the device.

4. [34]

   Secondly, for his part, Mr Hardas has no specific recollection of any of the treatments he performed upon Ms Zhang, and gave evidence only of his general practice.

5. [35]

   Thirdly, in such circumstances, understandable weight is given to the practitioner’s contemporaneous notes of treatment, and indeed they were prominent in this trial. They record treatments performed on 18 occasions. However, in relation to some of the matters noted, Ms Zhang contends that they were inaccurate, or indeed quite wrong. She goes so far as to say that they have been fabricated.

6. [36]

   One contributing factor to the dispute as to the authenticity of Mr Hardas’ clinical notes was the competing expert evidence given by the chiropractors called by each party. Ms Zhang called Mr Bruce Watts, who practises as a chiropractor, osteopath and acupuncturist. He is not accredited to use the Activator device, although he uses a similar device on young children and elderly patients. Mr Hardas called Dr Timothy Wade-Ferrell. His curriculum vitae records that he undertook no university education, but received a “Doctor of Chiropractic” and a “Doctor of Osteopathy” from the Sydney College of Chiropractic in around 1983. He gave evidence that he exclusively uses the “Activator Method” and has done so since 1999, and that he was “also proud to have been asked to adjust the co-founder of Activator Methods, Dr Arlan Fuhr”.

7. [37]

   Both men were permitted without objection to express their view as to whether the notes had the appearance of authenticity. Mr Watts was of the view that the notes were so exemplary that they could not have been recorded at the time of each consultation. As he put it, “these notes look too picture-perfect for my recognition of what the average chiropractors keeps as notes with regards treatment, including this type of treatment”: T562.22.

8. [38]

   There were two difficulties with Mr Watts’ evidence (neither is a criticism of him). First, Mr Watts candidly acknowledged that he had not been accredited in the Activator technique and was relying upon his reading of the “Activator Method” publications. Secondly, until his attendance during the trial, Mr Watts had only been supplied with a typed version of the notes – prepared, I assume, by the defendant’s solicitors for the purposes of this litigation – recording the various ticks and crosses and transcribing Mr Hardas’ handwritten annotations. However, during the trial, including during an adjournment, Mr Watts was provided with the original notes, and did not seek in any way to alter or qualify the opinions he had previously expressed. That said, Mr Barry very properly acknowledged that Mr Watts’ evidence called for a “cautious” approach in light of the way he had been briefed: T662.8.

9. [39]

   For his part, Dr Wade-Ferrell emphasised that adhering to the Activator protocol was straightforward, and recording the small number of adjustments performed was the work of a few moments. He said:

10. [40]

    Exhibit C was Mr Hardas’ letter dated 22 October 2012 to the Health Care Complaints Commission. He was responding to the Commission’s letter to him, which clearly contained the whole of, or at least substantial extracts of, a complaint made by Ms Zhang. Neither party tendered her letter, or the Commission’s letter to Mr Hardas. Paragraph 700 of Ms Zhang’s witness statement records that she lodged a complaint in September 2012, which is consistent with the reference to “12/03008” in Mr Hardas’ response.

11. [41]

    It is clear that Mr Hardas appreciated that Ms Zhang was making serious complaints about him. His letter includes the following passages:

12. [42]

    Mr Hardas provided a copy of his clinical notes with his response to the Commission. Ms Zhang’s case was that he altered his notes at the time he supplied his response, so as to cause the Health Care Complaints Commission to dismiss her complaint. Having done so, Mr Hardas was, according to Ms Zhang, tied to the fabricated notes.

13. [43]

    It is necessary to look at the file as a whole.

14. [44]

    As produced, the file was contained in a moderately battered cream manilla folder, with the plaintiff’s name handwritten on the edge “ZHANG, Yingjie”. There is nothing to suggest that the folder is not slightly more than a decade old.

15. [45]

    The file commences with a patient history report, written in at least two different hands. Ms Zhang identified her own writing identifying her name, age, birth date, address, phone number and referring doctor.

16. [46]

    The file contains what appears to be the original referral from Dr George Nicola from February 2007. The substance of the referral was:

17. [47]

    It was not suggested that the referral was other than genuine.

18. [48]

    Consistently with the referral, the file contained a photocopy of four x-rays taken by City X-Ray and dated 20 February 2007 purporting to show images of Ms Zhang’s cervical spine.

19. [49]

    The file as produced contained two letters from Mr Hardas to Dr Nicola. One is dated 16 March 2007, the other 30 March 2007. The two are in quite different forms, and it was clarified that the latter was tendered on the basis that it was a copy which had been produced in answer to a subpoena by Dr Nicola. Perhaps unfortunately, Dr Nicola had responded to the subpoena by electronic production, and no party appears to have made attempts to obtain the original documents. The consequence is that in the copies which have been tendered, not only has the top of Mr Hardas’s letterhead not been reproduced, but also it is not possible confidently to determine whether the letter was sent by fax, or email, or physically.

20. [50]

    The two letters disclose certain similarities. The letterhead (insofar as may be seen) is identical, including minor oddities such as the absence of a space between “Grad” “Cert” and the unnecessary stop at the footer after the words “GM Hardas Chiropractor & Associates”. Further, both header and footer are in a serif typeface. However, there are some unusual differences in the body of each letter:

    1. (1)

       The date of the earlier letter is at the top towards the right margin. The date of the letter to the same general practitioner purporting to have been written two weeks later is at the top left margin. And yet, the formal words of introduction “Dear Dr Nicola,” and “RE: Yingyie Zhang D.O.B.: 19/02/1973” are identical in location, punctuation and all other respects save for typeface.

    2. (2)

       The 16 March letter is entirely written in a serif typeface (it is, or is very similar to, italicised Times New Roman). The body of the 30 March letter is also entirely italicised, but it is in a sans-serif typeface.

    3. (3)

       The 16 March letter also seems to be in a smaller font than that of 30 March. This is not merely a case of the way the pages have been reproduced in the tender. The former has more lines on the page, and up to 18 words per line, while the latter has no more than 13 words per line.

    4. (4)

       There is also a discrepancy in the content of the two letters. That dated 16 March contains the following history:

    5. (5)

       That dated 30 March contained the following:

21. [51]

    There may be an entirely benign explanation for the discrepancies between the letters of 16 and 30 March. It may be, for example, that the differences in font and formatting between the letters of 16 and 30 March 2007 reflect the fact that the former was not retained on the file, but was printed out later (perhaps, years later) from a word processor which used a different page style. Ultimately, these considerations may be put to one side, because (as his counsel submitted) Mr Hardas was not confronted with them in cross-examination. To the contrary, their authenticity was central to the attack on the clinical notes.

22. [52]

    Ms Zhang’s case was based on the clinical notes being fabricated, and she did not seek to bolster that allegation by reason of any peculiarities in the rest of the file. To the contrary, Ms Zhang took the view that the letter of 16 March 2007, which (so the Court was told: T229.12) had been sourced from documents provided by Dr Nicola, was accurate and cross-examined Mr Hardas on the basis that insofar as it was inconsistent with his notes, the notes were fabricated (T230.10-45):

23. [53]

    The cross-examiner continued, by reference to complaints of tightness in Ms Zhang’s cervical spine and a burning sensation (T231.16-38):

24. [54]

    I turn to the notes themselves. Two pages of the notes are reproduced below (the third last column on the second page, dated 16 August 2007, is in red ink):

25. [55]

    Despite the importance of this litigation and the prominence of the notes in it, I was told that neither party has subjected them to documentary forensic examination. Certainly, there was no expert evidence from anyone who had examined them forensically.

26. [56]

    In many respects, the notes bear the hallmarks of a contemporaneous record obtained by Mr Hardas.

    1. (1)

       For one thing, the description given in the top sections for the consultations dated 26 and 29 March 2007 flow into a second column, with the result that the record for the next following consultation occurs in the next column but one.

    2. (2)

       For another, it is clear that a different hand, in a different pen, has recorded on 16 August 2007 that Ms Zhang had failed to attend the appointment. The previous entry, for 19 July 2007, records that Ms Zhang’s next appointment was in one month’s time, consistently with an appointment being made on 16 August 2007.

    3. (3)

       For a third, there are some minor errors in the notes. The entries for 7 and 28 June 2007 purport to record a shortened left leg of 10 millimetres and 20 millimetres respectively, and, with the Activator technology, record various adjustments made to the left hand side of the spine. However, in both cases an “R” has been inserted to describe the adjustments made to the pelvis (the methodology indicates that there are three “level 5” adjustments to be made to various parts of the buttock in such a case). I readily accept the force of Mr Watts’ criticism that a document may be “too picture-perfect” to be authentic. However, contrary to Mr Watts’ opinion, the notes are not 100% perfect.

27. [57]

    The notes contain some records of Ms Zhang’s symptoms. That for 22 March 2007 records “MID T better”, which is a reference to her saying that her mid-thoracic spine was feeling better. That for 29 March 2007 records that “(R) upper arm paraesthesia ceased”, consistently with the 30 March 2007 letter to Dr Nicola.

28. [58]

    Much was sought to be made of the fact that entries for each of the first twelve consultation record at the bottom in “(1/12)” or “(2/12)” or “(12/12)”. Those figures having been (on Mr Hardas’ case) written down at the time, it followed that no later than the end of the first consultation, Mr Hardas had determined there would be precisely twelve sessions in all. Part of the plaintiff’s submissions on this point was directed to what was said to be the coincidence that twelve sessions was precisely the maximum number of sessions which Medibank Private would pay. This was denied, but does seem to have some substance, although – perhaps because the financial records in the form attached to Mr Hardas’ statement are legible only with a magnifying glass – this was not taken up with any witness. The 12th consultation was on 26 April 2007. Mr Hardas’ accounts record what seems to be a normal health care fund payment of $21.80 for the consultation on 7 June, but a fund payment of only $5 for 28 June, and no fund payment at all for 18 July, 20 August, 17 September or 24 September.

29. [59]

    On the ultimate issue, namely, whether Mr Hardas had altered his notes in the course of responding to the complaint lodged by Ms Zhang with the HCCC, I bear in mind the following matters:

    1. (1)

       there was no evidence that the documents had been subject to forensic analysis;

    2. (2)

       the heightened level of satisfaction required by s 140 of the Evidence Act having regard to the extremely serious consequences for Mr Hardas;

    3. (3)

       the fact that the authenticity of the notes was supported by the opinion of Dr Wade-Ferrell, who was the expert best placed (because of his familiarity with the Activator Method and because of his involvement in teaching the practice) to express a view;

    4. (4)

       considerations intrinsic to the notes which support their authenticity, such as the different coloured pen and different hand writing in the entry for 16 August 2007, the fact that some entries extend over two columns, and the minor errors found in the entries for adjustment to the pelvis for 7 and 28 June and in relation to the next appointment date for the entry of 17 September 2007; and

    5. (5)

       the inherent limitations upon the testimonial evidence of Ms Zhang, concerning her recollection of what happened to her more than a decade ago, in circumstances where although I accept she genuinely believes she was maltreated by Mr Hardas, her recollection could quite easily have become mistaken in the passage of time, especially in connection with her recognised psychiatric illness.

30. [60]

    I put to one side the matters mentioned above as to the form and content of the letters of 16 and 30 March 2007 to Dr Nicola.

31. [61]

    I also bear in mind the all-or-nothing nature of the attack made by Ms Zhang. The issue presented for determination is whether the entirety of the notes are fabricated, to corroborate his rejection of her claims that she was seriously maltreated by him. Indeed, Ms Zhang submitted that if I accepted her evidence that she had paid in cash on one occasion, not recorded in Mr Hardas’ accounts, then it followed that the entirety of the notes was a fabrication.

32. [62]

    I also bear in mind the difficulty in identifying any motivation for Mr Hardas to have maltreated Ms Zhang.

33. [63]

    Those matters point against a finding of fabrication. But it remains necessary to evaluate the clinical notes and the parties’ submissions against the independent evidence. To an extent which is difficult to explain merely as coincidence, the symptoms recorded in the notes bear some correlation with the records made available to this Court on subpoena, to which Mr Hardas could not possibly have had regard in October 2012.

34. [64]

    Two examples will suffice. Dr Diana Learoyd, endocrinologist, wrote to Dr Gobran on 21 August 2007 saying that she had seen Ms Zhang for the first time on 21 August 2007 in connection with likely polydypsia (Ms Zhang said she was drinking up to 8 litres of water a day). Dr Learoyd records that “[s]he presents with sudden onset of polydypsia in early June 2007.” There is no record in Mr Hardas’ notes of excessive water consumption. However, that is not surprising. Dr Learoyd’s letter also records:

35. [65]

    Mr Hardas’ clinical notes for the previous day record, “Woke up one morning C stiff” (it is not disputed that this is to be understood as a stiff neck).

36. [66]

    Further, what Dr Learoyd wrote concerning resolved numbness in Ms Zhang’s right arm is more broadly corroborated by a series of entries in Mr Hardas’ clinical notes for 8 March (“(R) whole arm feels some numbness”), 12 March (“(R) arm Better Not Numb”), 26 March (“No numbness (R) arm”), 29 March (“(R) arm good”) 12 April (“Numbness in (R) Arm Shoulder less frequent”).

37. [67]

    Secondly, Dr Anthony Millar’s handwritten notes record that he saw Ms Zhang on 4 October 2007, on referral by Dr Yap, some 11 days after Ms Zhang’s last session with Mr Hardas. Dr Millar’s letter of 11 October 2007 records:

38. [68]

    Mr Hardas’ notes for 24 September 2007 begin with “inhalating (P)” (which is to be read as a record of her reporting she suffered pain when inhaling). And his post-care notes record, in quotation marks, “can breathe inhale easier”, which is to be read as a record of her statement to him after treatment that she could breathe and inhale more easily. Once again, there is a real correlation between Dr Millar’s letter and Mr Hardas’ notes.

39. [69]

    Ms Zhang gave consistent evidence in her statement and in cross-examination as to what occurred each time she attended Mr Hardas. She said that she felt “a series of impacts for five to ten minutes continuously on my upper cervical spine on both sides” and that “[o]n each occasion that I felt an impact I also heard a click”. She said that during those five to ten minutes, Mr Hardas “was making these impacts on my upper cervical spine every two to three seconds. The clicking was continuous, without long pauses”. She estimated there were hundreds of impacts at each session.

40. [70]

    Ms Zhang also said that after the first few attendances, she felt occasional impacts at the base of her skull, and that Mr Hardas also asked her to turn her head to one side and back. But she maintained that on each occasion, most of the session involved near continuous impacts to her upper cervical spine.

41. [71]

    There were some minor variations in her evidence as to what occurred at each session, which I do not need to summarise for present purposes. It was and is patently clear that there is a world of difference between her recollection and what is recorded in Mr Hardas’ notes, which reflect treatment in accordance with the Activator protocol.

42. [72]

    As noted above, Mr Hardas had no independent recollection of his sessions with Ms Zhang.

43. [73]

    I accept that Ms Zhang sincerely believes that Mr Hardas treated her in the way of which she complains, which is to say, applying the Activator device hundreds of times at each session to her cervical spine. However, I reject her submission that Mr Hardas’ notes are a fabrication. The finding Ms Zhang seeks is extremely serious, and not only do the notes appear on their face to be authentic, I have attempted by the foregoing analysis to demonstrate that they contain precisely the sort of minor glitches one would expect in notes prepared at the time, and are corroborated by what was recorded by Drs Learoyd and Millar contemporaneously, to whose correspondence Mr Hardas could have had no access prior to October 2012 when his notes were provided to the Health Care Complaints Commission.

44. [74]

    I accept that the record of symptoms made by Mr Hardas in his notes was made contemporaneously by him. I further accept that the entirety of the notes were made at the time – including the records of the vertebrae to which adjustments were made. Those findings extend to a finding that Mr Hardas determined at the commencement of his treatment to provide 12 sessions with Ms Zhang. A decision to do so may, on one view, sit uneasily with Mr Watts’ evidence that treatments needed to respond to a patient’s symptoms, but that does not cause me to doubt that that is what occurred.

45. [75]

    I find that Ms Zhang visited Mr Hardas on the occasions recorded in those notes. I do not accept that she saw him on 17 May 2007 and paid in cash and was given a handwritten receipt. Once again, I do not doubt that Ms Zhang sincerely believes that this occurred. But Mr Hardas was not the only chiropractor whom Ms Zhang has seen, and her account is not corroborated by any contemporaneous record. No such payment occurs in Mr Hardas’ financial records.

46. [76]

    I find that Ms Zhang presented substantially in accordance with Mr Hardas’ notes, and that he applied the Activator device to her pelvis and spine as indicated in those notes. I find that he applied the device fewer than a dozen times on each occasion. I reject Ms Zhang’s evidence that on each occasion he applied the device hundreds of times to her cervical spine.

The evidence of Dr Robert Cooke

1. [77]

   I turn to the challenge to the evidence of Dr Cooke, a senior consultant orthopaedic surgeon called in Ms Zhang’s case. The resolution of Mr Hardas’ submissions about the honesty of his evidence is not dispositive, but I think it is important both for the parties and for the witness that I do so.

2. [78]

   Around half of the cross-examination was directed to a strenuous attack on Dr Cooke’s independence and appreciation of his role as an expert. The plaintiff had produced email exchanges between Dr Cooke and Ms Zhang in November and December 2017, in circumstances which were related to the late service of his report mentioned in Zhang v Hardas [2018] NSWSC 219. It was put, by reference to those emails, that he was in substance advising Ms Zhang as to how to answer questions posed by the defendant’s experts and was otherwise acting as an advocate. Dr Cooke, who had flown that morning from Queensland to give evidence, was also asked whether he had deliberately left behind his spectacles so as to hinder his cross-examination.

3. [79]

   The email communications included one dated 28 November 2017, in which Dr Cooke rejected Ms Zhang’s suggestion that another witness (his wife, a pilot qualified to fly wide-bodied aircraft including the A380) give evidence about the cybernetic dynamics body and then continued:

4. [80]

   Dr Cooke also wrote to Ms Zhang, in connection with his unpaid account, that “I am more than willing to do whatever is necessary to assist you in obtaining justice in this matter”. In the same email, he said:

5. [81]

   At the time Ms Zhang was declining to participate in examinations undertaken by the defendant’s expert witnesses, contrary to her obligations under the rules and (I infer) the advice of her lawyers. She had also been directing her solicitors not to serve Dr Cooke’s report, which had been finalised months earlier. The circumstances of this trial, the plaintiff giving instructions not to serve that report, but rather to continuing to seek to provide suggestions to Dr Cooke, are unusual.

6. [82]

   Dr Cooke was also cross-examined by reference to his response to an MRI of January 2016 of Ms Zhang’s cervical spine provided by her to him, which included:

7. [83]

   Dr Cooke explained his response thus:

8. [84]

   I accept the sincerity of that explanation. It may be (I do not express a concluded view) that in unusual circumstances Dr Cooke, who was both a doctor and an expert, became more closely involved than would be desirable. But in substance, Dr Cooke was doing no more than saying – entirely correctly – that it was important to focus on the major issues and to be guided by Ms Zhang’s legal team.

9. [85]

   It is to be borne in mind that at this stage Dr Cooke’s report had been finalised months earlier. This is the opposite of the class of case where it is established that a solicitor or party has improperly interfered in the content of an expert’s report (cf Linter Group Ltd v Price Waterhouse [1999] VSC 245 at [16]). It is not clear whether Ms Zhang or her lawyers or Dr Cooke was asked to produce copies of any draft reports or communications relating to his final report, although my impression is that this is litigation in which the defendant has enthusiastically embraced the opportunity to issue subpoenas and notices to produce (at one stage, the court book had four volumes of documents produced in answer to no fewer than 54 subpoenas, all save one of which had been issued by the defendant, and it was clear from the application on the tender of Dr Cooke’s report that that had by no means exhausted the defendant’s appetite to issue notices to produce). No such draft reports or earlier communications were tendered, or put to Dr Cooke in cross-examination. I have no reason to infer that any sentence of Dr Cooke’s report was affected by any improper communication to Dr Cooke, or any improper response by him.

10. [86]

    Precisely how Dr Cooke’s failure to bring his spectacles for reading to Sydney would assist the plaintiff was at no stage articulated by the defendant. An expert witness who in disregard of his or her obligations to the Court was seeking to be an advocate would be poorly advised to hinder his or her presentation in the witness box by being unable to read.

11. [87]

    I turn to the substance of Mr Hardas’ attack upon Dr Cooke. Dr Cooke was sceptical of the idea underlying the Activator Method, and also sought to identify a mechanism by which repeated impacts to the spine would cause lasting damage.

12. [88]

    Dr Cooke said that it was obvious that the nearby tissues (ligament, musculature, soft tissue and connective tissue) would be compressed by the force of the Activator instrument, but that some of that force would be dissipated radially beyond the point of compression, “with the possibility of damage to any of the interposing tissues including sympathetic ganglia”. He said that he had only be able to discover one or two credible experimental studies that confirmed the translation of 1-2 mm and the rotation of 1-2 degrees of a lumbar segment. He had found no Cochrane-based clinical studies, or radiographic studies confirming the alleged effectiveness of the Activator II translating and/or rotating a vertebral body with a resulting luxation (or reduction) of the apopyseal joint.

13. [89]

    It was highly regrettable that Dr Cooke’s report was served late. There was no written response to his claim of absence of clinical evidence supporting the achievement of translation or rotation of a vertebra. That may be because his opinions are unanswerable, but it may also be because the experts retained by Mr Hardas had no opportunity to respond.

14. [90]

    I do note that Dr Wade-Ferrell asserted that the efficacy of the method was supported by scientific studies. He said, “The Activator Method is one of the most widely researched chiropractic techniques and the only instrument adjusting technique with clinical trials to support its efficacy”. However, the only reference given for that proposition was www.activator.com. Dr Wade-Ferrell also regularly cited Arlan Fuhr’s book (the latter’s name was consistently misspelt as “Fhur” in footnotes 2, 9 and 18 of his report). I regard neither the website nor the book as a sufficient basis for the propositions cited. This was not the most unusual feature of the citations provided in Dr Wade-Ferrell’s report. In support of the proposition that “I have seen reports of people who have been injured by non-qualified therapists”, rather than providing references to academic literature, his report gave a reference to a website for a television show, “A Current Affair”. I accept that popular television shows have an under-studied influence on the understanding of matters such as online fraud and medical negligence: see C Cross and K Richards, “The ‘ACA effect’: Examining how current affairs programs shape victim understandings and responses to online fraud” (2015) 27(2) Current Issues in Criminal Justice 163. But I was surprised to see the website of that television programme cited in support of an academic opinion on the harm caused by non-qualified therapists.

15. [91]

    Dr Cooke also considered that the rapidly repeated injury inflicted by the Activator (according to Ms Zhang’s instructions) would produce a series of chemical responses – vasoconstriction and thrombocyte aggregation (part of the coagulation process), the introduction of macrophages (to remove necrotic tissue and bacteria), followed by the proliferation of fibroblasts and endothelial cells to repair. Dr Cooke said that it was evident that if the Activator device were applied incorrectly and excessively, the potential damage included compressive injuries to the soft tissue, possible damage to the articular surfaces of the joint leading to traumatic osteoarthosis, possible damage to the intervertebral disc, leading to possible disc extrusion, damage to the vascular structures about the spinal cord, traumatic damage to adjacent sympathetic ganglia with resulting autonomic dysreflexia and possible dislocation of unstable segments, including the risk of atlantoaxial articulation that may result in death.

16. [92]

    The attack upon Dr Cooke on the basis of which his evidence was said to be “academic dishonesty” turned upon what he had said of the work on spinal cord concussion associated with Dr Fischer. Dr Cooke had cited three recent publications of Dr Fischer, and reproduced the abstract of each in full (the studies in their entirety became Exhibit 9). The subject of attack was Dr Cooke’s statement:

17. [93]

    In cross-examination, Dr Cooke maintained that the Fischer studies were talking about percussive damage, both temporary and permanent, to the autonomic nervous system (T497.17). He agreed that the Fischer studies involved surgical experiments concussing the spine of rats, and performed tests on matters such as paw preference, concluding that cord concussion could lead to transient paraplegia and neurapraxia, all of which were instant (T498-499). Although Dr Cooke accepted that the defining feature for spinal concussion was an immediate alteration of sensation, he qualified that response:

18. [94]

    He explained about the mechanism for delayed injury:

19. [95]

    Dr Cooke readily accepted it would be preferable to deal with closed injuries (rather than the surgically opened spines of rats). He disagreed that there were significant relevant differences between the circulation of rats and humans.

20. [96]

    The substance of the defendant’s submissions of “academic dishonesty” (Closing Submissions, para 5.19) was as follows:

21. [97]

    I reject the submission of academic dishonesty. First, I see no difficulty in principle in extrapolating from rats to humans, which is an everyday aspect of experimental biological science. Most animal research – from testing shampoo in rabbits’ eyes to all manner of testing pharmaceutical drugs in lower and higher mammals – is driven by what can be inferred from the results will be the effect on humans. Secondly, I see no difficulty in taking studies of the impacts upon a surgically exposed spinal cord and extrapolating to external concussion to the spinal chord. The former enables a precise and repeatable concussive blow to be tested. Moreover, in these two respects, Dr Fischer and his colleagues were consciously seeking to conduct experiments which could be of utility in the study of concussive injuries to humans (especially, those involved in contact sports). That is to say, the studies were designed to be of utility to concussions suffered by humans whose spinal cords had not been surgically exposed. That was the whole point of the studies. To that extent, the defendant’s criticisms are without foundation.

22. [98]

    I have some reservation in extrapolating from damage to the spinal cord to damage to the sympathetic ganglia. However, the defendant did not adduce evidence to suggest that this was scientific nonsense. I am no expert, but it does not strike me as nonsense. I understood it to be accepted that the sympathetic chain ganglia ran (at least in part) alongside the spinal column. I see no reason why Fischer’s studies preclude a conclusion that neural structures in the immediate vicinity of the spinal cord can be damaged by forceful percussive blows.

23. [99]

    It is also true that the Fischer studies emphasised that the work was at an early stage. There is some force in the criticism that Dr Cooke failed sufficiently to qualify the confidence with which reliance could be given to that work. But this is a very long way from a claim of academic dishonesty.

24. [100]

    Dr Cooke may be right or wrong in relation to his view that delayed onset of symptoms, as opposed to immediate onset, is a matter of degree, and he may be right or wrong as to the mechanism he proposed. But I do not consider that the challenge to Dr Cooke’s academic honesty is made out.

25. [101]

    It is convenient at this stage to summarise the evidence on the efficacy of the use of the Activator device, and the opinions as to whether its misuse could cause harm.

26. [102]

    I regard the best evidence before the Court as to the unlikelihood of the Activator Method performing any therapeutically beneficial function, and the possibility that it might cause harm, as that of Dr Cooke. He alone identified potential mechanisms by which some efficacy might be achieved: he considered that the use of the Activator device might serve as a counter-irritant and thus relieve muscle tension, no differently from a simple massage. He explained that a counter-irritant would cause irritation or inflammation of the skin by stimulating the cutaneous sensory receptors (as opposed to an anaesthetic or analgesic), a technique known since antiquity. There was no challenge to those opinions.

27. [103]

    Professor Craig Anderson, a neurologist called by the defendant, suffered from the disadvantage of having had a full copy of Dr Cooke’s report for no more than three weeks. Although to some extent that report replicated a draft which had been supplied in 2017, significant aspects, explaining Dr Cooke’s opinion as to the causal mechanism by which the application of the Activator II damaged the tissue and structures surrounding the cervical spine, were new. I do not criticise Professor Anderson for being unable to prepare a written report in response. He articulated some criticisms in oral evidence as to the mechanism of harm proposed by Dr Cooke. He said that injury to the nerves rarely involved blood, and that the references by Dr Cooke to muscles, bone structures, discs and the spinal cord all of which were linked through one common pathway was “overly simplistic”.

28. [104]

    Professor Anderson said:

29. [105]

    As may be seen, Professor Anderson did not offer an explanation of how the Activator device might have a therapeutic benefit, aside from its placebo effect. But he denied that it would cause injury.

Duty of care

1. [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.

2. [107]

   However, the Civil Liability Act requires a particular order to be adopted in the legal analysis of those actions for negligence to which it applies. I am also conscious of the obligation to make findings against the possibility that the foregoing is found to be wrong. Although the application of the statute is a little complex in the present case – essentially because of the impact of so 5O and 32 – I proceed accordingly.

3. [108]

   Prominent in Mr Hardas’s defence was a reliance on s 32. Section 32 provides:

4. [109]

   Section 32 in substance reinstates what had been held in this Court and by the minority of the High Court in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 as to the need to prove that the defendant should reasonably have foreseen that his or her conduct might cause mental harm to a person of normal fortitude: see at [109]-[118] (McHugh J), [273]-[283] (Hayne J) and [333]-[334] (Callinan J), and see P Handford, Tort Liability for Mental Harm (3rd ed, Lawbook Co, 2017), pp 292-293.

5. [110]

   There are four definitions in s 27 related to “mental harm”. “Mental harm” is defined to mean “impairment of a person’s mental condition”, “pure mental harm” to mean “mental harm other than consequential mental harm”, “consequential mental harm” to mean “mental harm that is a consequence of personal injury of any other kind”, and “personal injury” is defined to include “(a) pre-natal injury, and (b) impairment of a person’s physical or mental condition, and (c) disease.”

6. [111]

   It was common ground between the parties, and in accordance with what was held in Optus Administration Pty Ltd v Wright (By his tutor) (2017) 94 NSWLR 229; [2017] NSWCA 21 at [35]-[36], that there must be a “particular and separate inquiry into the existence of a duty of care with respect to mental harm”. Plainly enough, it is appropriate to deal with the confining effect of s 32 upon the scope of a duty of care at the outset.

7. [112]

   Mr Hardas contended that s 32 was engaged and no duty in relation to any case based on consequential mental harm arose, because (a) a person of normal fortitude would not in the circumstances of this case have suffered a recognised psychiatric illness if reasonable care were not taken and (b) Ms Zhang was (unbeknownst to Mr Hardas) not a person of normal fortitude.

8. [113]

   There seem to me to be two areas of potential complexity in the application of s 32. The first turns on the words “in the circumstances of the case”. The second turns on the delineation between “pure mental harm” and “consequential mental harm” in s 32(2) and (3), which terms are defined in s 27.

9. [114]

   First, highly relevant to “the circumstances of the case” is the question of primary fact as to the treatment undertaken by Mr Hardas upon Ms Zhang between February and September 2007. I have found that Mr Hardas complied with the Activator Protocol, adjusting her pelvis and spine on only a small number of occasions at each consultation. I am not prepared to find that Mr Hardas ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness in the event that (for example) he continued to apply the Activator even though new symptoms presented. The position resembles what was considered by RA Hulme J in Hollier v Sutcliffe [2010] NSWSC 279 at [232]:

10. [115]

    Further, I do not understand there to have been any evidence of psychiatric injury from the use of the Activator device in accordance with the Activator Protocol.

11. [116]

    On the other hand, if “the circumstances of the case” are radically different, and are as described by Ms Zhang, with hundreds of applications of the Activator to her cervical spine at each consultation, then I would not refrain from drawing any such conclusion. To the contrary, I think it is entirely foreseeable that the repeated application of the Activator II device many thousands of times to C5 or C6, over a six month period could cause psychiatric injury. Indeed, Mr Hardas readily accepted that the Activator, if not properly used, was capable of causing injury (T272).

12. [117]

    Section 32 has the effect that the content of the duty of care owed by Mr Hardas to Ms Zhang, and whether it extended to psychiatric injury, depends on a finding of primary fact (this is confirmed by subsections (2), (3) and (4)). That may seem a little odd: traditionally, the existence and scope of a duty of care is a question of law for the judge, while breach is a question of fact for the tribunal of fact. But the Civil Liability Act has many provisions which alter the traditional aspects of an action for negligence.

13. [118]

    Secondly, the definitions of “mental harm”, “pure mental harm”, “consequential mental harm” and “personal injury” are to be read together. I proceed as follows.

    1. (1)

       The two classes “pure mental harm” and “consequential mental harm” together comprise the entirety of “mental harm” – that follows directly from the definition of “pure mental harm”.

    2. (2)

       The words “of any other kind” in the definition of “consequential mental harm” fall to be read in light of the definition of “personal injury”. That definition includes “impairment of a person’s physical or mental condition”. When read with the definition of “mental harm, it follows that “consequential harm” means all forms of mental harm which are a consequence of any form of any personal injury other than impairment of a person’s mental condition.

    3. (3)

       Thus, for example, a plaintiff might have an impairment of his or her mental condition (say, suffering from post traumatic stress disorder), which in turn might lead to a further and distinct impairment of his or her mental condition (he or she might become clinically depressed). Such a person has still only suffered “pure mental harm”, although one aspect of mental harm is a consequence of another aspect.

    4. (4)

       Conversely, where a person suffers an impairment of his or her mental condition as a consequence of any other form of personal injury except an earlier impairment of his or her mental condition, then that impairment of his or her mental condition amounts to “consequential mental harm”.

14. [119]

    I mention the foregoing because prominent in the evidence in this case is the phenomenon described as “somatisation”, whereby Ms Zhang’s psychiatric condition presents itself in physical symptoms. Professors Robertson and Phillips considered that there was a cultural aspect to Ms Zhang’s presentation, which both agreed was most unusual. The term both men used is “somatising”. That term refers to a physical manifestation of a psychiatric condition. Both men were of the view that Ms Zhang’s psychiatric condition presents itself in part through physical manifestations.

15. [120]

    Professor Robertson, who examined Ms Zhang on 30 October 2013, and again on 14 December 2017, said in his first report that:

16. [121]

    No challenge was made to any of that evidence. Professor Robertson was not required for cross-examination, and there was no objection to his reports.

17. [122]

    I would not regard Ms Zhang’s disabling somatisation as impacting upon whether the injury amounts to “pure mental harm” or “consequential mental harm”. Ms Zhang’s psychiatric injury presents itself as pain in a variety of parts of her body, but that falls short of her injury falling outside the definition of “pure mental harm”. Only if mental harm is a consequence of some personal injury which is not itself a mental condition is there “consequential mental harm”.

18. [123]

    In closing submissions, Mr Hardas perceived Ms Zhang’s case as being one of “consequential mental harm”, and relied on s 32 as a complete answer to it. He relied upon the unchallenged evidence of Professor Robertson as follows:

19. [124]

    The joint evidence of Professors Phillips and Robertson also included the following:

20. [125]

    Although Ms Zhang contended to the contrary, I am comfortably satisfied that I should accept, on this issue, the unchallenged professional opinions of the well qualified experts retained by both parties.

21. [126]

    On the findings of primary fact which I have made, s 32 requires me to exclude from the scope of the duty of care owed by Mr Hardas any duty not to cause Ms Zhang mental harm.

22. [127]

    This is a matter of no little importance in this case. Professor Anderson gave evidence in his supplementary report, confirming the opinions in his principal report, that he could find no evidence of any autonomic disorder, no evidence of any nerve damage, and no evidence for any bone or ligament damage. Likewise, Dr Rutkowski gave evidence that Ms Zhang “has not actually sustained an injury to her spine per se”.

23. [128]

    Neither Professor Anderson nor Dr Rutkowski was challenged on those opinions.

24. [129]

    True it is that there is the joint evidence of the psychiatrists that Ms Zhang suffers from serious psychiatric injury. There is also Ms Zhang’s evidence that she was in pain. She also gave evidence of a large number of symptoms, including (to take the first five of some thirty) breathing constriction, an impaired ability to regulate body temperature, increased sweating in her head and upper body and reduced sweating in her feet and legs, extreme fatigue and unstable blood pressure. But Ms Zhang’s evidence of pain and symptoms falls short of evidence of any physical injury.

25. [130]

    There was force in Mr Fordham’s closing submission:

26. [131]

    Mr Barry responded by pointing to the definition of personal injury as including impairment of a person’s physical condition. In that he is right. The question is not whether there is “physical injury” but whether there is “personal injury”, defined to include impairment to a person’s physical or mental condition”. However, s 32 requires a distinction to be drawn between impairment of a person’s mental condition, and impairment to a person’s physical condition.

27. [132]

    Accepting as I do the reality of Ms Zhang’s psychiatric injury, and the pain she feels, I am not persuaded that she has established any impairment to her physical condition, as opposed to impairment of her mental condition. I accept the evidence of Professor Anderson and Dr Rutkowski that there is no physical injury they can see, and the evidence of the psychiatrists that her symptoms reflect the somatisation of her psychiatric illness.

28. [133]

    I am conscious that Mr Barry submitted that “pain is, of course, by definition, physical”. This does not alter my view that the pain from which Ms Zhang suffers falls outside the definition of “mental harm”. Further, Mr Barry submitted that there was physical damage caused to Ms Zhang during the course of her treatment by Mr Hardas. However, the evidence falls short of establishing injury other than mental harm.

29. [134]

    In short, I conclude 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. That conclusion is dispositive of this litigation.

Standard of care for professionals

1. [135]

   Let it be assumed that, contrary to my conclusions on duty as a consequence of s 32, Mr Hardas owed a duty to Ms Zhang to take care not to cause her psychiatric injury. Prominent in Mr Hardas’ defence was his reliance upon the defence created by s 5O of the Civil Liability Act. That section provides:

2. [136]

   Ms Zhang filed no reply. In her written submissions, served shortly prior to the commencement of the trial, Ms Zhang denied that Mr Hardas was “practising a profession so as to engage s 5O”, and the trial proceeded on that basis (which in any event reflected the implied joinder of issue in UCPR r 14.27(2)).

3. [137]

   If s 5O applies, then if Mr Hardas’ conduct accords with a manner which was widely accepted in Australia by peer professional opinion as competent professional practice, he will not incur a liability in negligence. For the reasons earlier given, I find that Mr Hardas’ treatment was in accordance with the Activator Protocol. Hence the questions which arise are:

   1. (1)

      whether Mr Hardas was “practising a profession” in 2007, and

   2. (2)

      whether following the Activator Protocol was acting in a manner which was widely accepted in Australia by peer professional opinion as competent professional practice.

4. [138]

   Although not otherwise defined, the term “practising a profession” is narrower – indeed, considerably narrower – than “professional” as a matter of ordinary English usage. Many contractors perform, and advertise that they perform, a “professional” service or a “professional” job. The fleets of white vans streaming through many suburbs on weekday mornings which proclaim garden, swimming pool and domestic handyman services are ready examples of businesses that assert that they adhere to a professional standard, but which in no sense “practise a profession”. The contrast being drawn by such businesses and their advertising is between the professional and the amateur. Merely calling oneself a professional or advertising that one performs a professional service is insufficient to be practising a profession for the purposes of s 5O.

5. [139]

   The notion of “practising a profession” falls to be read with two other related concepts in the same subsection: “peer professional opinion” and “competent professional practice”. A person cannot “practise a profession” so as to engage s 5O unless it can be established that there is a relevant body of “peer professional opinion” and a relevant standard which amounts to “competent professional practice”.

6. [140]

   Those three concepts in turn cause me to cavil with Mr Hardas’ submission that s 5O should be construed in accordance with what was said in a very different context in Prestia v Aknar (1996) 40 NSWLR 165 at 187-190. Santow J was there concerned with the extended definition of “trade or commerce” in s 4 of the (former) Fair Trading Act 1987 (NSW) to include “any business or professional activity”, and was considering whether professional activities fell within that definition. Santow J offered what was concededly only a “working definition”, which was said to be “typically” and “usually” associated with a form of official accreditation and with professional standards of competence. I respectfully agree that those ideas are a useful touchstone of the concept of a profession. But s 5O requires there to be “peer professional opinion” and “competent professional practice”, and so is necessarily a little more circumscribed. Further, the Fair Trading Act was beneficial legislation one of whose purposes was to protect consumers. Section 5O in the Civil Liability Act is a provision which, when it applies, denies the tortious liability of a defendant to a plaintiff who has suffered harm by reason of what might otherwise be a breach of a duty of care. There is no reason to read s 5O benevolently.

7. [141]

   That said, there is no reason to confine the notion of “practising a profession” in s 5O to preconceived notions of the three professions which have been recognised from “time immemorial”, namely, the Bar, the Established Church and the Military: J Jackson, Professions and Professionalization: Volume 3, Sociological Studies (Cambridge University Press, 1970), p 65. Indeed, that formulation is remarkable insofar as it excludes the medical profession, which was one profession for whose benefit s 5O was undoubtedly enacted, reversing what had been held in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 and Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 and restoring a test along the lines of what had been held in Bolitho v City and Hackney Health Authority [1998] AC 232. The legislative history is summarised in Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [56]-[63] and South Western Sydney Local Health District v Gould [2018] NSWCA 69 at [89]-[95].

8. [142]

   The history of professions is of significant interest and complexity. It is a remarkable thing, perhaps reflecting the rise of what has been termed “the professional society” in the twentieth century, that at least three of the papers in Jesting Pilate concern professions and professionalism. Indeed, Sir Owen Dixon’s paper “Jesting Pilate” itself, which supplies the title of that volume, and which was delivered to the Royal Australasian College of Surgeons, compares aspects of the legal and medical professions. Today, the undoubted professionalism of surgeons, and medical practitioners more generally, illustrates the temporal dimension of the issue. For even the medical profession, to which s 5O is squarely directed, was not always regarded as a profession. It was not one of the three professions recognised from “time immemorial”. Further, physicians achieved professional status before surgeons and occupied a distinctly superior social position in the nineteenth century (as Stephen Maturin pointed out to Jack Aubrey with a touch of acerbity early in the second chapter of Patrick O’Brien’s Master and Commander), while both would have been asked to enter through the tradesmen’s door in the 18th or early 19th centuries. It is to be recalled that the surgeons and barbers had merged in 1540, only separating so as to form the Royal College of Surgeons in 1745: see 18 Geo II c 15 “An Act for making the Surgeons of London and the Barbers of London two separate and distinct Corporations”, which in turn refers to the lengthy statute 32 Hen VIII c 42.

9. [143]

   It follows that whether or not a person practises a “profession” turns not upon some canonical list, but rather upon whether the occupation is characterised by features which mark it out as a profession. What precisely those features are is contestable. Dixon wrote that:

10. [144]

    One very distinguished legal historian has written that “what distinguishes a profession from any other occupation is the ability of its membership to determine, directly or indirectly, who may pursue that particular vocation”: W Prest, “Introduction: The Profession and Society in Early Modern England” in W Prest (ed), The Professions in Early Modern England (Croom Helm, Kent, 1987), p 14. I favour the view that the essential nature of practising a profession is closely linked to a partial monopoly, justified by education and public benefit, and involving a measure of altruism distinct from the drive for profit: see H Perkin, The Rise of Professional Society (Routledge, 1989), chs 1 and 4 and J S Anderson, Lawyers and the Makings of English Land Law 1832-1940 (Clarendon Press Oxford, 1992), ch 9. But it is not necessary to express any concluded view on the broader question; the more limited question whether chiropractors practised a profession in 2007 is complex enough.

11. [145]

    Mr Hardas supplied a note, after the conclusion of the trial and in accordance with leave, on the ways in which chiropractors are now regulated and disciplined. But the critical question is how they were regulated in 2007. Whether or not s 5O is satisfied turns upon peer professional opinion at the time of the conduct which is said to have been negligent. Just as it may be expected that peer professional opinion may fluctuate over time, as is expressly reflected in s 5O(1), so too may the issue of whether a particular occupation is a profession.

12. [146]

    The period in question is February to September 2007. During that period, chiropractors were subject to the Chiropractors Act 2001 (NSW). (The Health Practitioner Regulation National Law (NSW) commenced on 1 July 2010: see Health Practitioner Regulation (Adoption of National Law) Act 2009, s 2.) Other relevant legislation in 2007 included the Health Care Complaints Act 1993 (NSW) and the Public Health Act 1991 (NSW).

13. [147]

    The Chiropractors Act 2001 included definitions of “professional misconduct” and “unsatisfactory professional conduct” in ss 24 and 25. Part 7 established the Chiropractors Registration Board, which was authorised by s 19 to establish “a code of professional conduct setting out guidelines that should be observed by registered chiropractors in their professional practice”. Part 4 concerned the procedure for making complaints. Section 26(1)(a) provided that a complaint may be made concerning “the professional conduct of a registered chiropractor”. Complaints were to be made to the Board (s 29), which was required to notify the Health Care Complaints Commission of any complaint made (s 31). The Health Care Complaints Act also authorised complaints to be made to the Commission (ss 7 and 9, read with the definition of health practitioner).

14. [148]

    The Board had particular powers enumerated in s 35 to deal with complaints. It was required to consult with the Commission to see if agreement could be reached between them as to the course of action to be taken concerning a complaint (s 34). If either the Commission or the Board formed the opinion that the complaint, if substantiated, would provide grounds for suspension or cancellation of the chiropractor’s regulation, there was a duty to refer a complaint to the Chiropractors Tribunal: s 36.

15. [149]

    The Chiropractors Tribunal was constituted by Division 1 of Part 10 of the Chiropractors Act. Its chairperson and deputy chairperson were required to be a lawyer of seven years’ standing: s 100(1). Its decisions record a small number of chiropractors disciplined, principally for inappropriate touching or “boundary violations” (see for examples HCCC v Peatling [2010] NSWCHT 1 and HCCC v Eather (No 1) [2011] NSWCHT 1).

16. [150]

    Further, the Public Health Act, s 10AC, provided:

17. [151]

    That section was inserted by the Chiropractors Bill 2001 (NSW) which also enacted the Chiropractors Act 2001. Previously, manipulation of the joints of the human spine was prohibited save by persons who were registered as medical practitioners, physiotherapists, chiropractors or osteopaths (Chiropractors and Osteopaths Act 1991 (NSW), s 4). Earlier still, spinal manipulation was regulated under s 25 of the Chiropractic Act 1978 (NSW).

18. [152]

    The second reading speech for the 2001 Act included:

19. [153]

    The author of that speech proceeded on the basis that chiropractors practised was a profession. The Parliamentary Secretary stated that the Bill included:

20. [154]

    Regulation under the Chiropractors and Osteopaths Act 1991 (NSW) and the Health Care Complaints Act 1993 (NSW) was similar. There was a Board established which was authorised to issue codes of professional conduct (s 27(a)), and complaints could be made to the Board in respect of “professional misconduct” (s 28). Part 5 of the Chiropractors and Osteopaths Act had a broadly similar structure to Part 4 of the Chiropractors Act in respect of the procedure for dealing with complaints which could lead to suspension or cancellation of registration.

21. [155]

    The first regulation of chiropractors appears to have been the Chiropractic Act 1978 (NSW). Section 18(2) provided for the definition of “misconduct in a professional respect”. Section 23(1) required the Board to suspend registration of the chiropractor or cause the chiropractor’s name to be removed from the register if satisfied of professional misconduct and that the person was thereby unfit to practise chiropractic. If the Board was satisfied of professional misconduct but not satisfied that the person was unfit to practise, it was empowered to issue a reprimand or caution.

22. [156]

    Earlier legislation had been drafted in different terms. After amendments made in 1959, s 26 of the Physiotherapists Registration Act 1945 (NSW) provided:

23. [157]

    Section 49(1) of the Medical Practitioners Act 1938 (NSW) provided, similarly, that:

24. [158]

    It will be seen from that section that prior to the enactment of the Chiropractic Act 1978 chiropractors (a) were described in legislation as having an occupation, in contradistinction to a profession, and (b) were treated in the same way as masseurs and chiropodists, in that they were not required to be registered.

25. [159]

    The Chiropractic Act 1978 had been preceded by two parliamentary reports, to which the Minister referred in the second reading speech: The Report of the Committee of Inquiry by Professor E Webb, (Parliamentary Paper No 102/1977, Parliament of the Commonwealth of Australia); and “Report of Committee of Inquiry into The Question of The Registration of Chiropractors” (Parliamentary Paper 64/1974, Parliament of New South Wales). The Minister’s second reading speech said that “[t]he proposed legislation is substantially in accord with these and other recommendations of both committees”: Hansard, Legislative Assembly, 7 December 1978, 1580.

26. [160]

    Professor Webb’s report summarised the early history of the chiropractic discipline, beginning with its founder, Daniel David Palmer, who was:

27. [161]

    Daniel David Palmer went on to establish the Palmer School of Chiropractic. The history of the school was described by the Webb Report as follows:

28. [162]

    B J Palmer was described as:

29. [163]

    As chiropractic became more established, disagreements began to emerge as to ideology:

30. [164]

    Professor Webb wrote of these divergences of approach in Australia as follows:

31. [165]

    However, Professor Webb wrote that:

32. [166]

    Nevertheless, Professor Webb stated that:

33. [167]

    The second parliamentary report recognised that “spinal manipulation has a substantial role in the therapy of musculoskeletal disorders, and that the gap will not be completely filled in the near future by the medical and physiotherapy professions”. It recognised that there was public concern in “unqualified practitioners calling themselves ‘chiropractors’ and practising as such to the detriment of the public”, and on that ground recommended a system of registration be established. The Committee summarised the arguments for registration as follows:

34. [168]

    It concluded:

35. [169]

    Section 5O of the Civil Liability Act does not define “profession”. However, it was enacted in a context in which (a) it was plain that the conventional medical profession was squarely within the mischief to which it was directed and (b) legislation treated chiropractors in ways which were similar to medical practitioners. The Chiropractors Tribunal operated similarly to the Medical Tribunal, especially insofar as provision was made for regulation, involving statutory concepts of professional misconduct and unsatisfactory professional conduct. The relevant statute in 2007, the Chiropractors Act 2001, consistently treated chiropractors as professionals. There is every reason for the undefined term “professional” in s 5O to extend to occupations regarded by the same Legislature as “professional”.

36. [170]

    The foregoing is sufficient to conclude that chiropractors were regarded, for the purposes of the Civil Liability Act in 2007, as practising a profession. It will also be seen that the notion of a licensed monopoly of people who practise spinal manipulation, with educational qualifications and mechanisms for admitting and excluding those who meet or fail to meet those standards, also appears to apply. It will also be plain from the legislative history that the same would not have been true some decades before.

37. [171]

    Secondly, s 5O requires an identification of “peer professional opinion”. Mr Hardas maintained that, in its application to this litigation, the relevant peers were those trained in “Activator Technique”. By way of analogy, he submitted that the relevant peers in other professions were not, say, doctors or lawyers generally, but anaesthetists or radiologists or lawyers specialising in conveyancing or taxation as the case may be. The alternative is that the relevant peers are all chiropractors.

38. [172]

    It may be that there was disharmony between chiropractors who were (or were the successors of) the “mixers” and those who were (or were the successors of) the “straights” mentioned in Professor Webb’s report. There is nothing in the evidence before me to enable me to determine the extent and depth of the different approaches. Happily, it is not necessary to decide this point. Section 5O(1), if it is to prevent a professional from incurring a liability in negligence, requires the professional to have acted in a manner which was widely accepted in Australia. However, that requirement is qualified by subsection (3). The fact that within the chiropractic profession there are those who adopt Activator method and those who do not – and also may have “differing peer professional opinions” – is something which fits naturally within s 5O(3), and on that basis suggests that “peer professional opinion” is broader than merely those chiropractors trained in Activator methods.

39. [173]

    In closing submissions, Mr Hardas said:

40. [174]

    In response, Ms Zhang submitted:

41. [175]

    Accepting the issues are as have been thereby framed, I find that the use of the Activator Method was widely accepted in Australia. That is sufficient to satisfy s 5O(1).

42. [176]

    For completeness I should mention s 5O(2), which qualifies the entire section, insofar as the court considers that the opinion is irrational.

43. [177]

    Pain is largely subjective. The same force, or heat, or electrical shock, will be perceived as more or less painful by different people. It is clear that much is unknown about the treatment of pain. It is also clear that there can often be a very significant placebo effect in play. That said, there appears to be little rigorous scientific testing of the efficacy of Activator Methods. Indeed, the fact that Mr Hardas, in May 2015, wrote a thesis on “a prospective, randomised, double-blind, placebo-controlled clinical trial assessing the effects of applying a force to the C5 facet joints by a mechanically assisted instrument (MAI) on referred pain to the shoulder” tends to confirm the absence of rigorous testing of the efficacy of the technique in 2007, or, at least, shortcomings in such research as had by that date been undertaken.

44. [178]

    However, I do not doubt that irrational treatments may give some genuine relief to some people. Faith healers, so-called “psychic surgeons”, and others may help some, particularly those who believe in the efficacy of the treatment.

45. [179]

    If Ms Zhang were to seek to rely upon the exclusion in s 5O(2), it was necessary, as a matter of basic procedural fairness, for her to have identified this before the trial: South Western Sydney Local Health District v Gould [2018] NSWCA 69 at [69]-[75]. Section 5O(2) gives rise to quite separate factual issues from s 5O(1). Not only was there no reply, but there was no mention of s 5O(2) in Ms Zhang’s opening, or for that matter closing, submissions. Accordingly, I refrain from considering whether the prima facie applicability of s 5O is affected by s 5O(2).

46. [180]

    The consequence is that were it necessary to do so, I would conclude that by reason of s 5O, Mr Hardas did not incur a liability in negligence from his treatment of Ms Zhang.

Section 5B – risk of harm

1. [181]

   If I am wrong as to s 5O(1) being an independent answer to Ms Zhang’s claim, then it remains necessary for Ms Zhang to satisfy s 5B. Normally, one would not assess the conduct of a defendant against two separate standards (that determined by s 5O, and that determined by s 5B). However, because of the contest on the application of s 5O, and the absence of any authority on the point, I think it is appropriate to make alternative findings on both bases. Both parties made final submissions on both bases.

2. [182]

   Section 5B of the Civil Liability Act provides that Mr Hardas is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

3. [183]

   It is at this point that Mr Hardas pointed, at the commencement and the conclusion of the trial, to a difficulty. He maintained that the failure by Ms Zhang to identify the relevant risk of harm gave rise to a serious difficulty in the case. Although Ms Zhang’s pleading entirely disregards the Civil Liability Act, and accordingly fails to engage with the need to identify the particular risk of harm against which it is alleged reasonable precautions have not been taken, the litigation proceeded on the basis of her written opening submissions, which identified the risk as: “the risk of aggravating the plaintiff’s physical condition and causing new injuries and consequential emotional harm”.

4. [184]

   I do not accept that Mr Hardas adjusted Ms Zhang’s cervical spine on the hundreds of occasions she recollects. I have found that his notes accurately record the treatment he administered. If I am wrong about that, then it is accepted that there was a breach of duty.

5. [185]

   The question arises as to what, if any, fall-back case is sought to be advanced by Ms Zhang. Mr Hardas emphasised that, in such a case, there was nothing in her pleading which assisted him to understand what precaution he was to take. In his closing submissions, he pointed by way of example to the possibility of a failure to cease treatment case based on his clinical notes being accepted to be accurate. He submitted that such a case “has separate and distinct breach issues from those addressed above and more nuanced questions relating to causation and damage. Those questions include what the exact risk was at whatever specified date, and the consequences which allegedly flow from failing to cease treatment at that particular date (none of which have been specified or proven)” (Closing Submissions para 3.12). Mr Hardas maintained that the pleading problem was not merely one of form but of substance.

6. [186]

   On one view, it might be thought that Ms Zhang did not have any fall-back case. In direct response to what had been put in Mr Hardas’ closing submissions at para 3.12 reproduced above, Ms Zhang submitted only that “the plaintiff’s case is that [the clinical notes] is a fabrication” (Plaintiff’s Submissions in Reply para 3.12). However, later in her submissions, Ms Zhang does, at least on one view, advance a fall-back case. She submits that she “does not rely upon the emergence of one new symptom but upon the progressive deterioration of her condition over the seven months of treatment that she received” and that it was the emergence of new symptoms which was the reason why Mr Hardas’ continuing to treat Ms Zhang for seven months was negligent (Plaintiff’s Submissions in Reply, paras 8.9 and 8.12). The latter paragraph concludes:

7. [187]

   It remains somewhat unclear to me whether it was put that even if Mr Hardas’ clinical notes accurately recorded what occurred at each session, there was a breach. However, I should proceed on the basis that irrespective of whether it is found that Mr Hardas adjusted Ms Zhang’s spine in accordance with the Activator Protocol, or on the hundreds of times to C5 and C6 which she recollects, in either case she contends that there was a breach of duty when new symptoms arose and Mr Hardas continued to treat her rather than sending her back to Dr Nicola.

8. [188]

   There was a dispute between the experts here. Dr Wade-Ferrell said:

9. [189]

   However, Mr Watts responded as follows:

10. [190]

    The debate between the two chiropractors then turned to the appropriate way to measure the shortness in one leg.

11. [191]

    Mr Hardas submitted that I should prefer the evidence of Dr Wade-Ferrell (Closing Submissions, para 8.8). Ms Zhang submitted that “this depends entirely upon the proof of the assumptions of fact on which Dr Wade-Ferrell proceeded” (Closing Submissions in Reply, para 8.8).

12. [192]

    There is a deal of evidence to the effect that the Activator is a “gentler” approach to chiropractic. Even so, it amounts to the application of significant force upon the structures in and near a patient’s spine. For many years in New South Wales it has been an offence for a non-licensed person to do so. The reason is that there is a risk of causing harm. The nature of the device, and the fact that statute had intervened referring in terms to “mechanical means” (see (former) s 10AC of the Public Health Act 1991 (NSW) and compare the current prohibition in s 123 of the Health Practitioner National Law, regulating the use of “a high velocity, low amplitude thrust” to manipulate the cervical spine) lead me to conclude that the risk is not insignificant. I accept Mr Watts’ view that a chiropractor in Mr Hardas’ position should have referred Ms Zhang to Dr Nicola when, after his initial 12 sessions had concluded, she continued to see him while presenting with additional symptoms. The additional symptoms (as recorded in Mr Hardas’ notes) included vertigo (10th session), “cracking sound” (12th and 13th sessions) and “deep inhalation”, which is to be read as a reference to Ms Zhang presenting with pain on breathing deeply (14th session). I am conscious of Dr Wade-Ferrell’s evidence to the contrary. However, what concerns me is the number and variety of new symptoms which were presented at the conclusion of the 12 sessions initially agreed and in later sessions.

13. [193]

    I have had regard to the matters in s 5B(2) in reaching that conclusion. The probability of harm is low, but the burden of referring Ms Zhang to Dr Nicola is low. There may be room for debate as to whether s 5B(2)(d) requires consideration of the social utility of chiropractors using the Activator device, or the practice of chiropractic more generally (cf Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 at [129]). I am not persuaded that the value of either is high. Most importantly, the likely seriousness could be high. Mr Watts gave an example of what he described as a “miniscule symptom” which could have become a surgical emergency:

14. [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, Mr Hardas breached his duty of care. However, that finding of breach of duty is distinct from questions of causation, to which I now turn.

Causation

1. [195]

   The joint evidence of Professors Phillips and Robertson was that Ms Zhang is suffering from a recognised psychiatric illness whose onset commenced reasonably shortly after her treatment by Mr Hardas. Those doctors were cautious to advise that although there was a temporal connection between treatment and illness, they could not express a view as to causal connection, save that psychiatric illnesses were often “multifactorial”.

2. [196]

   Ms Zhang needs to establish that Mr Hardas’ breach of duty was a necessary condition of the harm she has suffered, and that it is appropriate for the scope of Mr Hardas’ liability to extend to the mainly psychiatric injuries from which she suffers: Civil Liability Act, s 5D(1).

3. [197]

   Mr Fordham emphasised that satisfaction of s 5D(1) required a but-for test, and that a temporal connection did not suffice. That is so: post hoc does not imply propter hoc. Mr Barry, at one stage, pointed to the position which would have obtained prior to the Civil Liability Act, when the tribunal of fact, possibly a jury, would have been directed to the series of injuries inflicted by Mr Hardas and the acknowledged psychiatric injury suffered by Ms Zhang, and asked to exercise a judgment based on common sense. But that approach to causation, endorsed by what was said by Mason CJ in March v Stramare (E and M H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, has been superseded by the Civil Liability Act. Mr Barry acknowledged, properly, that this Court was bound to apply the staged reasoning process in s 5D.

4. [198]

   It was not suggested that this was the case where s 5D(2) applied. Accordingly, the questions were whether but for causality was established and whether scope of liability was established. Mr Hardas made it plain that even if Ms Zhang’s recollection of her treatment by him was accepted, his submission was that she would still fail on causation.

5. [199]

   Much attention was given to the absence of any physical injury on the part of Ms Zhang. Mr Hardas said that it would have been very easy for any one of the many practitioners who had treated her to have been qualified and to give evidence of a physical injury she had suffered. On the other hand, Ms Zhang noted that the definition of “personal injury” in s 5 (for the purposes of Pt 1) and s 27 (for the purposes of Pt 3) expressly included “impairment of a person’s physical or mental condition”. It was in issue between the parties as to whether impairment required the presence of an “injury”.

6. [200]

   I think I can, and therefore should, put that question of construction to one side. On the findings of fact I have made, I do not accept that Ms Zhang has shown, as she must under s 5E, that any physical or psychiatric injury suffered has anything to do with the handful of applications of the Activator device each time she visited Mr Hardas over a period of some seven months. That is a larger finding than is required by s 5D(1). More precisely, if s 5O is not available, then I do not consider that Ms Zhang has shown that, if she had been referred to Dr Nicola after new symptoms presented themselves towards the end of the course of 12 sessions, she would have suffered no, or less, damage.

7. [201]

   If the findings in the previous paragraph about s 5D(1) are wrong, then there is a large question, which interrelates with s 32, as to scope of liability. I see no utility in deciding that question, which is one of law rather than fact, on a counterfactual basis. There is a limit to the number of alternative findings that should be made at first instance.

8. [202]

   Conversely, if I am wrong about the primary question of fact, and indeed Mr Hardas did inflict hundreds of blows upon Ms Zhang, then notwithstanding the paucity of evidence, and the contestability of Dr Cooke’s opinions, I would conclude that Ms Zhang’s present psychiatric state was materially contributed to by Mr Hardas. Further, on this premise, there is in my view no reason for Mr Hardas’ scope of liability for treatment which was seriously contrary to the Activator Protocols not to extend to the loss she has suffered.

Limitation

1. [203]

   Ms Zhang’s claim is prima facie barred (and extinguished) by the Limitation Act 1969 (NSW): ss 50C and 63. Proceedings were commenced almost 6 years after her last consultation with Mr Hardas. The “3 year post discoverability limitation period” applicable to claims for damages for personal injury is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff. The effect of s 50D in its application to Ms Zhang is that her cause of action was only “discoverable” when she knew or ought to have known each of the facts that (a) the injury has occurred, (b) the injury was caused by the fault of Mr Hardas, and (c) the injury was sufficiently serious to justify the bringing of an action on the cause of action.

2. [204]

   In belated response to Mr Hardas’ defence, Ms Zhang sought to bring herself within s 50D, essentially by pointing to delays in Mr Hardas and Dr Nicola providing their medical records, and further delays in obtaining an opinion on prospects sufficient to certify a statement of claim.

3. [205]

   The question is whether a plaintiff knew or ought to have known the “key factors necessary to give rise to liability”: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 at [39]; State of New South Wales v Gillett [2012] NSWCA 83 at [94]. It was not until April 2011 that an opinion was sought from Mr Watts as to whether the treatment carried out by Mr Hardas was appropriate and whether Ms Zhang would have avoided her injuries had she received appropriate treatment, and his report was received two or three months thereafter. By that time, Ms Zhang’s cause of action was discoverable within the meaning of s 50D, but that is within three years of her commencing proceedings.

4. [206]

   It is true that Ms Zhang retained solicitors in August 2009. There was a waiver of privilege by her as to the advice she had been given, but there was no tender of any documents reflecting advice given at some earlier stage to Ms Zhang about her ability to bring proceedings. Mr Fordham candidly acknowledged that had a record of such advice been found in the documents as to which privilege had been waived, he would have tendered it.

5. [207]

   Accordingly, I take the communications in April and July 2011 at face value. I would infer that that was the first time Ms Zhang was told that she was able to bring proceedings. The consequence is that Mr Hardas’ limitation defence fails.

Damages

1. [208]

   Against the possibility that I am wrong as to the findings of primary fact, duty, breach and causation, I should assess damages. I do so on the basis that, for this purpose only, I accept that what Ms Zhang testified as having occurred did occur, namely, that Mr Hardas applied the Activator device hundreds of times on each occasion to her cervical spine. It is not disputed that if that occurred, there was a breach of duty; as Mr Fordham put it, “if your Honour finds hundreds of adjustments per session, then breach of duty follows as night follows day”. Further, s 5O could not apply.

2. [209]

   I also proceed on the assumption that doing so caused (within the meaning of s 5D) all of Ms Zhang’s symptoms. That is an assumption which might well be highly favourable to Ms Zhang, but it seems to me that it is appropriate on this hypothetical assessment of damages to proceed substantially in accordance with her primary case.

3. [210]

   The parties constructively reached agreement as to the various actuarial factors contributing to the assessment of damages. They were also in agreement as to the components of the assessment, but in issue as to the quantum of each of those components.

4. [211]

   For non-economic loss, Ms Zhang makes a claim of 70% of a most extreme case, or $429,000, while Mr Hardas contends that psychiatric injury leading to the somatisation of which Ms Zhang complains should lead to 28% of a most extreme case, or $86,000. Ms Zhang is in pain and is suffering from depression. Nevertheless, while unable to work, she is by no means entirely physically incapacitated. In particular, as will be apparent from what follows, she remains capable of a deal of international travel, and some recreational activities. The assessment is inevitably broad-brush. It has been described as neither scientific nor normative: Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49]; Hall v State of New South Wales [2014] NSWCA 154 at [31]. I would find her non-economic loss as 35% of a most extreme case, which pursuant to s 16 of the Civil Liability Act translates to 35% of the maximum amount which may be awarded, or $214,375.

5. [212]

   Ms Zhang claims $168,165.50 in past out-of-pocket expenses. The largest component is international travel, to Brazil (13 times), the United States of America (once), Holland (5 times) and the Philippines (once), which I understand is to attend on various alternative healers, principally, someone known as “John of God”. I accept that Ms Zhang believes that this achieves some benefit for her.

6. [213]

   I asked Mr Barry for a reference for any authorities supporting such a claim, and was told that there were none (T668).

7. [214]

   Mr Barry said that “what could loosely be described as alternative treatments is recoverable, [depending] on a cost benefit analysis as to their reasonableness”. Let that be assumed. The cost is established by documents or estimates which are not challenged. But what of the benefit? The plaintiff’s belief that an alternative treatment is appropriate or even necessary cannot of itself entail that the defendant is legally liable to indemnify her. The position resembles that considered by a Full Court of the Supreme Court of Western Australia in Neal v CSR Ltd [1990] WASC 529; [1990] Aust Torts Rep 81-052 concerning the recoverability of the cost of an experimental drug being developed to extend the life of people suffering from mesothelioma. Malcolm CJ, with whom Wallace and Walsh JJ agreed, referred to there being a “small chance, founded on hope rather than medical opinion at this stage of the research” of a benefit. Professor Luntz cites that decision at p 266 of Assessment of Damages for Personal Injury and Death (4th ed 2002) for the proposition that the costs of purely speculative treatment will not be allowed. The position also resembles what Lord Simonds said in Gilmour v Coats [1949] AC 426 at 446: “The faithful must embrace their faith believing where they cannot prove: the court can act only on proof”.

8. [215]

   I note that the unchallenged evidence of Dr Rutkowski, called by Mr Hardas, was that “the overseas trips cannot be seen as reasonably necessary, nor the extensive adjunct therapies apart from those prescribed by her GP”. The same applies to the total of $43,350 claimed for “Alternative therapies from September 2008 until date”, which is principally based on estimates of $250 per week for the first 18 months, and $1,500 per heard from July 2011 to date.

9. [216]

   Ms Zhang claimed the entirety of out of pocket medical expenses she had incurred since 26 February 2007 of $49,596.90 (items 2a, 2b and 2c of her schedule of out of pocket expenses). But Mr Hardas pointed out that the majority of these were not shown to relate to either psychiatric treatment (including hypnotherapy), autonomic disorder (including neurological treatment) or any physical injury (including osteopathy and scans), indicating this by colour coding on the schedules provided by Medicare. Ms Zhang has seen a very large number of health professionals, but many of the practitioners appearing on the report provided by Medicare are not otherwise identified in the evidence. In order for Mr Hardas to be liable, she needs to show some causal connection between his breach of duty and the treatment she sought.

10. [217]

    No submission was made that there was any error in the defendant’s coding of the entries on the Medicare schedules. I proceed on the basis that (a) if Medicare allows a patient a benefit, even for therapies which may be regarded as “alternative”, that supports the conclusion that they achieve some benefit and at a reasonable cost, and (b) favourably to Ms Zhang, all entries shown to be referable to her psychological, autonomic or physical injury are recoverable. The total (on my calculation) is $20,643.60 in respect of which Ms Zhang received a Medicare benefit of $18,031.05.

11. [218]

    Ms Zhang claims $549,580 in future out of pocket expenses. The largest components are two discectomies ($150,000), international travel ($202,400) and alternative therapies at $2,500 per annum for 40.6 years ($101,500). For the reasons already given, I do not think that any of the expenses for travel or alternative therapies are made out. Nor do I consider that the full amount for two discectomies should be allowed, for what is at present a somatic disorder. This was the subject of competing evidence. There is a chance that such surgery will be required, but it is no more than that. I regard the chance as real, not negligible, but less than 50%. I estimate its present value at $30,000.

12. [219]

    As noted above, Dr Rutkowski was not cross-examined. She estimated the total yearly costs at $12,103 if not covered by Medicare or a HealthCard, and $3,026 if covered. I accept that unchallenged evidence as the measure of future out of pocket expenses, in addition to the possibility that a discectomy is required.

13. [220]

    I turn to past economic loss. There is a relatively minor dispute as to whether Ms Zhang is entitled to damages for a period from December 2007 until March 2008 (she resumed some work for the following few months). I would permit that claim. Ms Zhang claims $1,138,907.67 by way of past lost income; Mr Hardas submits that the total incapacity over that period would yield $947,986, but would reduce that by 25% because of the uncertainty of working as a contractor. I see no reason to apply more than a 15% reduction for general vicissitudes. I would accept Ms Zhang’s calculation of past economic loss. I did not understand that additional components of $108,196.23 for past superannuation and interest calculated on an (averaged) rate of 6.8% to be challenged (T656). That leads to additional components of $108,196.23 and $84,803.06 respectively.

14. [221]

    For future economic loss, Ms Zhang seeks $1,453,830.51 based on “a total inability to work until the retirement age”, including an allowance of 15% for vicissitudes. This is a matter of some difficulty. True it is that the psychiatric opinions are highly guarded. I do not think it has been established that the position is quite so pessimistic. Ms Zhang is highly intelligent and I would infer has skills which are still highly marketable, notwithstanding she has been out of the workforce for a decade. Dr Rutkowski saw the “likelihood of moderation of the pain/somatisation syndrome”. The parties’ submissions on this issue could fairly be described as exiguous, although that perhaps reflects the inevitably broad-brush approach which is required. Doing the best I can, I would further reduce the amount sought by one third, to reflect (a) the small but not insignificant prospect of Ms Zhang being able to enjoy some residual earning capacity at a high rate, and (b) the possibility which I regard as greater than 50% that she will in the future have sufficient earning capacity at least to work part-time in a relatively undemanding role.

15. [222]

    Ms Zhang makes a claim for $247,725 for future care, based on “a cost of $45 per hour in the order of say 6 hours per week for life”. There was no basis in the evidence for any such claim. Ms Zhang has not required care for any of the last decade since she was treated by Mr Hardas. That is the unchallenged evidence of Dr Rutkowski. The point was made by Mr Fordham in closing submissions, to which Mr Barry made no response. I would not award any damages for future care.

Orders

1. [223]

   For those reasons, the proceedings should be dismissed. Costs should follow the event. However, Mr Hardas’ written submissions state that “an argument in respect of costs arises”. The orders I make will enable application to be made, within the period specified by UCPR r 36.16, to vary the order as to costs, either consensually or by exchange of written submissions with a view to it being determined on the papers.

2. [224]

   I make the following orders: