Australia, Sept. 9 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198844fa17c733184b08a60d)

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