In 2007, Ms Yingjie Zhang consulted George Hardas on numerous occasions for chiropractic treatment. Ms Zhang claimed that Mr Hardas administered a chiropractic device, called the Activator, hundreds of times on each occasion to her cervical spine, which she claims led to her suffering psychiatric injury and mental harm.
Mr Hardas held numerous instructor certificates in Activator Method Chiropractic Technique. 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, however, the forces are considerable as the point of the device is for it to apply sufficient force to move bones in the spine.
Ms Zhang claimed that at their first consultation, Mr Hardas applied the device hundreds of times to her cervical spine, and that he did not ask her to perform the various movements mentioned above. However, Mr Hardas claimed that he applied the Activator on precisely seven occasions to her pelvis, lumbar, thoracic and cervical spine.
Court Proceedings
Ms Zhang commenced proceedings in the Supreme Court of New South Wales against Mr Hardas, in negligence and claimed damages. She alleged that his negligence in the course of 19 chiropractic treatments performed by him, between February and September 2007, have caused her injury, especially psychiatric injury. She also alleged that Mr Hardas’ clinical notes were fabricated.
Mr Hardas denied liability. He also relied on s 32 of the Civil Liability Act 2002 (NSW), that no duty in relation to any case based on consequential mental harm arose, because
- 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
- Ms Zhang was (unbeknownst to Mr Hardas) not a person of normal fortitude.
His Honour Leeming JA found that 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 was 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.
Further, Ms Zhang had not established any impairment to her physical condition, as opposed to impairment of her mental condition. The only injury established by Ms Zhang is injury which s 32 of the Act excludes from the scope of the duty of care owed to her by Mr Hardas.
Accordingly, his Honour dismissed Ms Zhang’s claim with costs: Zhang v Hardas (No 2) [2018] NSWSC 432.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
