Zhang v Hardas

Neal v CSR Ltd [1990] WASC 529; [1990] Aust Torts Rep 81-052 Optus Administration Pty Ltd v Wright (By his tutor) (2017) 94 NSWLR 229; [2017] NSWCA 21 Prestia v Aknar (1996) 40 NSWLR 165 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 LIoyds LR 140 South Western Sydney Local Health District v Gould [2018] NSWCA 69 State of New South Wales v Gillett [2012] NSWCA 83 Watson v Foxman (1995) 49 NSWLR 315 Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 Zhang v Hardas [2017] NSWSC 876 Zhang v Hardas [2018] NSWSC 219 Texts Cited: J S Anderson, Lawyers and the Makings of English Land Law 1832-1940 (Clarendon Press Oxford, 1992) 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 O Dixon, Jesting Pilate (2nd Ed, William S Hein & Co, 1997) P Handford, Tort Liability for Mental Harm (3rd ed, Lawbook Co, 2017) J Jackson, Professions and Professionalization: Volume 3, Sociological Studies (Cambridge University Press, 1970) M Keet, H Heavin and S Sparrow, "Anticipating and Managing the Psychological Cost of Litigation" (2017) 34 Windsor Yearbook of Access to Justice 73 H Luntz, Assessment of Damages for Personal Injury and Death (4th ed 2002) H Perkin, The Rise of Professional Society (Routledge,1989) Category: Principal judgment Parties: Yingjie Zhang (Plaintiff) George Hardas (Defendant) Representation: Counsel: C T Barry QC, E Grotte (Plaintiff) M Fordham SC, C P O'Neill (Defendant)

Solicitors: Walker Law Group (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2013/235239 Publication restriction: Nil

Judgment

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. 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. 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. 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. The legal issues are also somewhat more complex than is usual. The principal issues are as follows. 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. 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. Did Mr Hardas' treatment cause, within the meaning of s 5D of the Civil Liability Act, damage to Ms Zhang? 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. 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.

Ms Zhang

1. 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.
2. 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.
3. 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.
4. 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.

Mr Hardas

1. 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).
2. Mr Hardas presently practises from Ingleburn and St George Private Hospital, Kogarah. In 2007, he treated Ms Zhang at his Kogarah practice.
3. 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: "In her 3rd last paragraph (page 4) she makes reference that I make comments like; "What for... What if they stuff up..." I refute this as a professional I do not speak that way to my patients." [Punctuation and tense as per original.]
4. 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.
5. 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.

The limited utility of demeanour

1. 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.
2. 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.
3. 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).
4. 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]: "Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." Indeed, it would be a very unusual case where that precept is not applicable.

The Activator II and "Activator Methods"

1. 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. 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. 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. 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.

What treatment did Mr Hardas provide to Ms Zhang?

1. 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.

Limitations on testimonial evidence

1. Testimonial evidence on that dispute is limited in three ways, in addition to what has been mentioned above.
2. 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.
3. 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.
4. 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.

Evidence bearing upon the authenticity of Mr Hardas' notes

1. 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".
2. 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.
3. 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.
4. 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: "It's not very hard. Look, procedures are quite straightforward, particularly if you're using a tilt table that comes up and down; it's not hard to write down, 'RPB, R‑PRL, L5 right, L2 right, T6 right, C7 left, heat, stress and massage.' I can do that in seconds. It's not that hard, and we've found that - I don't - I know what Dr Watts is saying is that, 'Yes, there are some notes that aren't as good,' but we're - as a profession, we're making a big effort to get our notes right and I've got to say that this is the most basic of procedures. No, you could note that very easily. My treatment time with a patient is around about five to seven minutes from in and out." Mr Hardas did not use a tilt table, but that does not materially detract from that evidence.

Ms Zhang's complaint to the HCCC and Mr Hardas' response

1. 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.
2. It is clear that Mr Hardas appreciated that Ms Zhang was making serious complaints about him. His letter includes the following passages: "She makes reference at the top of her page 10, through my website that I was looking for people to do experiments, this accusation is totally false. ... Further to her allegations at the bottom of her page 10 continued to her page 11 she claims that I do not possess the professional expertise and basic ethics and integrity to fulfil my role as a health care practitioner. I totally reject this, it is defamatory, baseless and I should be asked for my credentials before making such accusations [sic]. I have now been in private practice for 21 years."
3. 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.
4. It is necessary to look at the file as a whole.

Opening the file - February 2007

1. 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.
2. 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.
3. The file contains what appears to be the original referral from Dr George Nicola from February 2007. The substance of the referral was: "Thank you for reviewing Ms Zhang with neck pain, headache and paraesthesia both arms. Evidence of spondylosis on CT. Thank you for reviewing her and chiropractic management."
4. It was not suggested that the referral was other than genuine.
5. 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.

The letters of 16 and 30 March 2007

1. 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.
2. 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. 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. 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. 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. There is also a discrepancy in the content of the two letters. That dated 16 March contains the following history: "History: Thank you for your referral of this patient to me. Yingjie presented to me complaining of neck pain." 1. That dated 30 March contained the following: "History: Thank you for your referral of this patient to me. Yingjie presented to me complaining of neck pain, sub-occipital headaches, vertigo, as well as generalis[ed] paraesthesia of the (R) arm."

The clinical notes

1. 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):
2. 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.
3. In many respects, the notes bear the hallmarks of a contemporaneous record obtained by Mr Hardas. 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. 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. 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.
4. 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.
5. 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.

The testimonial evidence

1. 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.
2. 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.
3. 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.
4. As noted above, Mr Hardas had no independent recollection of his sessions with Ms Zhang.

Conclusion on fabrication

1. 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.
2. 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.
3. 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.
4. 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. 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. 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. 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: "I do understand your desire to drill down to micro analysis of the causes of your suffering and disability, but unfortunately this additional knowledge will not serve to improve your [chances] of winning this case, but rather will serve to confuse the legal and lay people involved in your case, which may have a disastrous effect on winning. My suggestion to you would be to listen to your legal team and concentrate on the obvious major issues that everybody can understand and make judgment on."
4. 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: "DO NOT go into detail so that you keep your target small. Ensure that you take a friend, or confidante with you into the examination to ensure that there is no misunderstanding due to English being your second language. Whatever the defendant doctors have to say to the Court will be countered (smashed) by your strong evidence, such as I have reviewed. You have good legal advisors who will lead you to a satisfactory outcome if you find it possible to accept the advice that they give you."

Duty of care

1. 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. 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.

Section 32 of the Civil Liability Act

1. Prominent in Mr Hardas's defence was a reliance on s 32. Section 32 provides: "(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."
2. 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.
3. 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."
4. 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.

Standard of care for professionals

1. 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: "5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
2. 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. 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. whether Mr Hardas was "practising a profession" in 2007, and 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.

Was Mr Hardas a person "practising a profession"?

1. 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.
2. 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".
3. 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.

The regulation of chiropractors in New South Wales

1. 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.
2. 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).
3. 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).
4. 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.

Conclusions on "profession"

1. 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".
2. 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.

Peer professional opinion

1. 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.
2. 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.
3. In closing submissions, Mr Hardas said: "The evidence of Mr Watts was that there was no universal acceptance of the Activator Method, but that the device was widely used. However, that is not definitive in relation to the operation of the section. The contrary view, expressed by Dr Wade-Ferrell, and someone well versed in its use, satisfies what is widely accepted for the purposes of this section" (written submissions, para 10.8).
4. In response, Ms Zhang submitted: "There is no dispute that the use of this American gadget was common amongst chiropractors. The issue is whether the use of such a gadget to administer impacts to the Plaintiff's cervical spine on hundreds of occasions and notwithstanding complaints or worsening and different symptoms was negligence. On that issue the experts are agreed."
5. 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).

Section 5O(2)

1. For completeness I should mention s 5O(2), which qualifies the entire section, insofar as the court considers that the opinion is irrational.
2. 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.
3. 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.
4. 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).

Conclusions on s 5O

1. 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. 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. 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. 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. 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. 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.

Causation

1. 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. 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. 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. 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. 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".

Limitation

1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

Orders

1. 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. I make the following orders:
3. Proceedings dismissed.
4. Plaintiff to pay the defendant's costs.
5. Any application to vary order 2 above to be made within 14 days either by providing consent orders to my Associate within 14 days, or alternatively by filing, serving and providing to my Associate a notice of motion, supporting affidavit and short written submissions within 14 days, with any evidence or submissions in response to be filed, served and supplied to my Associate within 14 days thereafter, with a view to any dispute being determined on the papers.
6. Exhibits to be returned to the parties.

Amendments 18 April 2018 - coversheet and [23] - case name for Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 18 April 2018 - [108] - "Ms Zhang's defence" corrected to "Mr Hardas's defence" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2018