Mammoliti v Oriental Massage Burwood Pty Ltd

Decision date: 08 August 2025

Jurisdiction: Civil

Before: Weber SC DCJ

Decision: The Court Orders:
(1) that there be judgment and verdict for the plaintiff against the defendant in the sum of $75,182.50.
(2) interest thereon at the rates pertaining from time to time pursuant to the provision of s 100 of the Civil Procedure Act 2005 (NSW).
(3) that the defendant pay the plaintiff’s costs.

Catchwords: TORTS – Negligence – Personal injury – Ankle ligamentous injury caused by massage – Where masseuse did not hold professional qualification – Masseuse not called to give evidence – Where anticipated remedial surgery likely to significantly reduce need for future damages

Legislation Cited: Australian Consumer Law (NSW) s 60
Civil Liability Act 2002 (NSW) ss 5B, 15, 16
Civil Procedure Act 2005 (NSW) s 100

Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Makita v Sprowles (2001) 52 NSWLR 705

Category: Principal judgment

Parties: Lisa Mammoliti (Plaintiff)
Oriental Massage Burwood Pty Ltd (Defendant)

Representation: Counsel:
Mr A Campbell (Plaintiff)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
GWH & Associates (Defendant)

File Number(s): 2024/00116639

Publication restriction: None

JUDGMENT

Introduction

1. The plaintiff is a woman now aged 48 years of age.

2. Prior to the incident the subject of the proceedings, the plaintiff was fit, well and active. She was working full-time (on a casual basis) for the NSW Department of Education as a learning support officer.

3. The defendant is a corporation which operated a massage and acupuncture clinic out of rooms situated in Mount Annan. The proceedings are proceedings in negligence, and, in the alternative, pursuant to the provisions of s 60 of the Australian Consumer Law (NSW) (‘ACL’). It was common ground between the parties that the principles set forth in the Civil Liability Act 2002 (NSW) (‘CLA’) govern the negligence claim in the proceedings.

Background

4. On 5 October 2023, the plaintiff attended on the massage clinic in the company of her estranged husband. The visit was in fact for the purpose of her husband receiving a massage. The plaintiff waited for her husband’s massage to be completed, during which time a female masseuse, who was described in the proceedings as ‘Amy’, offered to massage the plaintiff. The plaintiff accepted Amy’s offer.

5. The plaintiff was taken into a massage room for the purposes of receiving a full body massage. The massage involved the application of massage oil. The massage commenced with the plaintiff lying face down on the massage table and, as I understand it, each part of the plaintiff’s body was massaged with oil, after which the excess oil was removed by the use of a towel which the masseuse, Amy, had in her possession. After the back portion of the plaintiff’s body was massaged, the plaintiff was asked to turn over and the front of her body was also massaged. The massage concluded in the plaintiff receiving a massage with the oil on her feet. The plaintiff says that at that time she had her eyes closed. The plaintiff's evidence was that Amy then forcefully twisted her left ankle from side-to-side in a whipping motion, which caused immediate pain, localised to the outside of her left ankle. The plaintiff sat up immediately and saw that Amy had a towel in both her hands. The plaintiff’s belief was that the towel had been used by Amy to wipe off the oil, and that it was through the vigorous application of the towel that she was injured.

6. The plaintiff immediately dressed and left the massage room. The plaintiff said that she was limping. That she was limping was corroborated in evidence by her husband who was waiting for her in the reception area of the clinic. The plaintiff gave evidence that she complained to a male behind the counter as to the pain that she was experiencing. The plaintiff’s initial reaction was to refuse to pay for the service. At the end of the day, however, the plaintiff’s estranged husband explained that, due to his aversion to conflict, he paid for both massages. It should be noted that the two massages were processed through the plaintiff’s HCF card, though, relevantly, HCF’s records do not indicate that either payment went through its system as a service provided by ‘Amy’. Rather, the treatment was put through HCF’s HICAPS system as a service provided by another female masseuse. It turns out that this course was undertaken as Amy was not, in fact, qualified as a masseuse, and so her services could not be the subject of a valid claim on HCF.

7. The defendant pleaded a denial of vicarious liability of the defendant for the acts and omissions of Amy. In closing submissions, however, it was accepted by the defendant that Amy was its employee for whose acts and omissions it was vicariously liable.

8. The plaintiff initially saw her general practitioner the following day concerning pain that she was experiencing in her left ankle and, on 14 November 2023, was seen by Dr Alttahir, an orthopaedic surgeon. Dr Alttahir opined that she had sustained left ankle lateral ligament complex rupture, and had grade 3 laxity of the anterior draw and talar tilt tests. This diagnosis was consistent with the opinion of both Mr Geoff Coleman, an expert physiotherapist who was called by the plaintiff, and the evidence of Dr Todd Gothelf, an orthopaedic surgeon who was also called by the plaintiff. Neither were required for cross-examination.

The Defendant’s Evidence

9. The defendant adduced no medical evidence and, as such, the plaintiff’s expert evidence was unchallenged. The only evidence adduced by the defendant was that of Mr Lin Tang, who was the sole director and shareholder of the defendant.

10. Crucially, Amy was not called. Amy, self-evidently, was in the defendant’s ‘camp’, and I comfortably infer that the defendant feared to call her and, thus, I further infer that the evidence of Amy would not have assisted the defendant’s case (Jones v Dunkel (1959) 101 CLR 298).

11. I should also add that I have no hesitation in accepting the evidence of the plaintiff and her estranged husband and, as such, conclude that the incident the subject of the proceedings occurred in circumstances as outlined by the plaintiff in her evidence.

Conclusion on Evidence

12. As such, the Jones v Dunkel inference which I have drawn only serves to reinforce my complete acceptance of the plaintiff’s evidence.

Section 5B CLA

13. The parties were agreed that the relevant risk of harm in the proceedings was the risk stemming from the forceful twisting movements on a customer’s body giving rise to a potential risk of injury. Mr Tang accepted that a massage therapist should not apply such forceful twisting and, indeed, said that Amy was trained at the clinic to ensure that such forceful twisting did not occur.

14. This was consistent with the evidence of Mr Coleman, the plaintiff’s expert physiotherapist, who stated in his report:

… as a massage therapist is not trained to have the knowledge or expertise to treat an ankle, the forceful and physical manipulation of the ankle was taking an unnecessary “risk”…

15. In the circumstances, I find that the risk of harm is the risk of physical injury when applying forceful and physical manipulation of the ankle.

16. There was no issue as to the other principles set out in s 5B(1), and so I find that the risk of harm in these circumstances was:

17. Foreseeable (so much was admitted by Mr Tang in his evidence).

18. Not insignificant. This is so as it gave rise to a level of physical injury which, in the plaintiff’s circumstances, turned out to be significant.

19. Such that a reasonable person in the position of the defendant would have taken precautions against the risk of harm.

20. As to the matters set forth in s 5B(2), Mr Coleman identified the following precautions which should have been taken by the defendant:

21. Forceful and physical manipulation should not have been used at all.

22. Ensuring its therapists were experienced and qualified.

23. At the end of the day, I did not understand the defendant to put in issue any matters arising out of s 5B, and I find that breach has been established in accordance with s 5B.

Causation

19. As to causation, Mr Coleman, in his report, stated:

In my opinion on the balance of probabilities (i.e., greater than 51% chance), the failures or omissions by the massage therapist were not of a reasonable standard of care, and did cause or contribute to Ms Mammoliti’s left ankle lateral ligament complex rupture and laxity, particularly to the fibres of the Anterior Talo-Fibular Ligament (ATFL) and to the intersection syndrome.

20. As I have indicated, Mr Coleman’s evidence was unchallenged in cross-examination and uncontradicted by contrary expert evidence. As such, I accept that causation is established.

The Defendant’s Case

21. The defendant submitted that the evidence of Mr Tang was that no complaints were received by him from the plaintiff on the day of the massage. This submission is not factually based, rather the highest that Mr Tang’s evidence rose was that he did not recall what occurred on that day (T 62. 13-20). As I have indicated, the plaintiff and her estranged husband gave evidence to the contrary, which I accept.

22. The defendant also submitted that no witnesses corroborated the plaintiff’s account of the massage or her alleged complaint. This submission is also incorrect. The facts are that the complaint was corroborated by her estranged husband, and the person who could falsify the plaintiff’s evidence as to what occurred on the massage table was Amy who, as I have indicated, was not called.

23. The defendant made a series of other curious contentions in its written submissions, the first of which being that the expert reports of Dr Gothelf and Mr Coleman were inadmissible pursuant to the principles set forth in Makita v Sprowles (2001) 52 NSWLR 705. In that regard, it should be noted that no objection was taken to either experts’ report at the time at which they were tendered. The defendant’s submission, no doubt conscious of that fact, proceeded to say that, in any event, their reports were of little assistance to the Court as neither had experience in massage therapy standards. I do not accept this submission. In my view, no such expertise was required by the experts to enable them to give the evidence which they gave in the proceedings.

24. The defendant also attacked the plaintiff’s expert reports on the basis that the experts, for the purposes of their reports, had accepted the history as to what occurred given by the plaintiff before opining. This submission was obviously not well-founded, as it failed to understand the process by which expert evidence is obtained.

25. Finally, the defendant argued that no expert report explicitly identified the massage as the sole primary cause of the left ankle issues, as opposed to a subsequent fall which she experienced. This fall, the plaintiff explained, was as a result of her left ankle giving way underneath her, causing damage to her right knee. The defendant’s submissions failed to confront the fact that Mr Coleman, in terms, gave evidence as to his view in relation to the causal link between the negligence and the plaintiff’s condition (see [19] herein).

Conclusion on Liability

26. For these reasons, I find that the plaintiff has established liability in negligence.

27. In light of my findings on negligence, I consider it unnecessary to deal with the ACL claim brought in the alternative by the plaintiff.

Damages

Non-Economic Loss

28. The plaintiff claims non-economic loss in the sum of $105,500.00, being 28% of the most extreme case pursuant the provision of s 16 of the CLA. The plaintiff submits that she has been in considerable pain since the massage therapy and has lost stability of her ankle joint and had a subsequent fall, which resulted in subsequent problems with her shoulders and right knee. She submitted that these injuries affect her daily living and ability to work, together with causing an inability to carry out recreation and leisure pursuits.

29. So much may be accepted, although it should also be noted that part of the plaintiff’s claim for future out-of-pocket expenses seeks damages to allow her to have her ligamentous injury surgically remedied.

30. To my mind, the suggestion of the plaintiff’s injuries being 28% of the most extreme case considerably overstates the situation.

31. In my view, a more realistic estimate of the plaintiff’s injuries would be 12% of the most extreme case, which results in no damages for non-economic loss.

Past Out-of-Pocket Expenses

32. This head of damage was agreed between the parties at $5,000.00.

Future Out-of-Pocket Expenses

33. I find that the plaintiff has established future out-of-pocket expenses of $7,158.50, which are made up as follows:

34. Dr Alttahir fees – $4,048.80.

35. Surgical assistant fee – $809.70.

36. Anaesthetist charges (estimate) – $800.00.

37. Hospital fees (estimate) – $1,000.00.

38. Future rehabilitation and medication (estimate) – $500.00.

Future Economic Loss

34. This was claimed in the sum of $100,000.00 which, again, I consider to be excessive. The plaintiff’s injuries, it seems clear, are capable of being cured by surgical intervention for which this award of damage will provide. As a consequence, I consider a more appropriate buffer for future economic loss to be $10,000.00.

Past Domestic Assistance

35. This is claimed at $33,024.00, comprising:

36. 21 hours per week for 24 weeks, at $32.00 per hour = $16,128.00.

37. 8 hours per week for 66 weeks, at $32.00 per hour = $16,896.00.

38. This claim is based on the evidence of Dr Gothelf, and is costed at the rates prescribed by s 15 of the CLA. I accept that this head of damage has been established.

Future Domestic Assistance

37. This head of damage was claimed in the sum of $60,000.00 which I also consider to be excessive, especially in light of the fact that the plaintiff’s requirement for such assistance is highly likely to substantially reduce following her remedial surgery. I would allow this head of damage in the sum of $20,000.00.

Summary of Damages

| Head of Damage | Quantum | | Non-Economic Loss | Nil | | Past Out-of-Pocket Expenses | $5,000.00 | | Future Out-of-Pocket Expenses | $7,158.50 | | Future Economic Loss | $10,000.00 | | Past Domestic Assistance | $33,024.00 | | Future Domestic Assistance | $20,000.00 | | Total Damages = $75,182.50 |

Orders

38. The Court Orders:

39. that there be judgment and verdict for the plaintiff against the defendant in the sum of $75,182.50.

40. interest thereon at the rates pertaining from time-to-time pursuant to the provision of s 100 of the Civil Procedure Act 2005 (NSW).

41. that the defendant pay the plaintiff’s costs.

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Amendments

12 August 2025

Paragraph [10] amended.