In this decision, the New South Wales District Court found a massage clinic negligent for the conduct of an unqualified masseuse. The defendant adduced no liability or medical evidence and failed to call the masseuse as a witness, allowing the Court to draw a Jones v Dunkel inference.
In issue
- In this recent decision of the New South Wales District Court, the Court found a massage clinic vicariously liable for the actions of an unqualified masseuse.
The background
The plaintiff, a 46-year-old woman at the time of the injury, sustained a left ankle injury during a massage at the defendant's clinic on 5 October 2023. The plaintiff was at the clinic for the purposes of accompanying her estranged husband to his massage when a female masseuse, identified as 'Amy' offered to massage the plaintiff while she waited. The plaintiff accepted Amy's offer and towards the end of the massage, Amy began to massage the plaintiff's feet. The plaintiff's evidence was that Amy then forcefully twisted the plaintiff's left ankle from side to side in a whipping motion, causing immediate pain.
The plaintiff stated she was limping following the incident, and this evidence was corroborated by her husband. She also stated she complained of the pain to a male behind the counter.
When the plaintiff attempted to claim the payment of the massage through her insurer HCF, it was found that Amy's services were not covered as Amy was not a qualified masseuse.
As a result of the massage, the plaintiff was diagnosed with a left ankle lateral ligament complex rupture. The plaintiff called upon evidence from Mr Geoff Coleman, physiotherapist, and Dr Todd Gothelf, orthopaedic surgeon, who agreed with the initial diagnosis. The defendant did not cross-examine either expert or adduce any medical evidence, leaving the plaintiff's expert evidence unchallenged.
The decision at trial
It was found that the forceful and physical manipulation of an ankle conducted by a massage therapist who was not appropriately trained presented a foreseeable and unnecessary risk. It was held that the defendant ought to have ensured that all its therapists were experienced and qualified and that forceful and physical manipulation should not have been used as a massage technique. As such, the defendant was found to be vicariously liable for Amy's conduct.
The Court made a point of the fact that Amy was not called to give evidence. It was inferred that the defendant 'feared to call her' as her evidence would not have assisted the defence of the case and as such, a Jones v Dunkel (1959) 101 CLR 298 inference was drawn.
The defendant called one lay witness to give evidence, who stated that he did not recall what occurred on the day. In the absence of any substantial evidence put forward by the defendant, the Court ruled in favour of the plaintiff, finding the defendant liable in negligence.
Implications for you
This decision is a reminder that a defendant may be found vicariously liable for the negligent conduct of its employees, even if they are unqualified.
Further, this case highlights the importance of conducting thorough investigations into a claim and obtaining sufficient evidence, particularly in advance of a trial. The absence of appropriate evidence will, as was found in this case, allow a court to make adverse inferences as to a client's case and may lead to full acceptance of the other party's evidence.
Mammoliti v Oriental Massage Burwood Pty Ltd [2025] NSWDC 298
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