In this recent decision, the New South Wales District Court (the Court) found a massage clinic vicariously liable for the conduct of its employee, 'Amy', even in circumstances where Amy was not a qualified masseuse. In essence, the plaintiff alleged that she sustained injury in the course of her massage with Amy.
This article was written by Stephanie Dunell for the Australian Health Law Bulletin.
The key issue before Weber SC was the absence of both liability and medical evidence adduced by the defendant and the Jones v Dunkel inference that was able to be drawn on this basis.1 Specifically and crucially, Amy was not called to give evidence. The Court inferred that as a result of the defendant’s failure to call Amy, her evidence would not have assisted the defendant’s case. On this basis the Court completely accepted the evidence of the plaintiff and the defendant was found liable in negligence.
The facts
On 5 October 2023, the plaintiff attended Oriental Massage Burwood for the purposes of accompanying her estranged husband for his scheduled massage. Whilst waiting for her husband’s massage to be completed, a female masseuse known as 'Amy' offered the plaintiff a massage, which she accepted.
In the process of completing the plaintiff’s massage, Amy 'forcefully twisted' the plaintiff’s left ankle from side-to-side in what was described as a whipping motion, causing the plaintiff immediate pain to her left ankle.2 Upon conclusion of the massage, the plaintiff dressed and left the massage room and alleged that she was limping.3 This was corroborated by her husband’s evidence, noting he observed the plaintiff limping when she walked back into the reception area of the clinic. The plaintiff also alleged that she complained of the pain to a 'male behind the counter'.
When the plaintiff’s husband attempted to process payment for the massages under his private health insurance, it was revealed that Amy was not a qualified masseuse.5
The plaintiff attended upon her general practitioner the following day concerning the pain in her left ankle. She was ultimately seen by orthopaedic surgeon, Dr Alttahir, approximately one month later who diagnosed her with a left ankle lateral ligament complex rupture, with grade 3 laxity of the anterior draw and talar tilt tests.6 This diagnosis was supported by expert physiotherapist Geoff Coleman, and orthopaedic surgeon, Dr Todd Goltheld, both of whom were called to give evidence by the plaintiff.7
The defendant adduced no medical evidence and as such, the plaintiff’s expert evidence was unchallenged.8 The only evidence adduced on behalf of the defendant was that of Mr Lin Tang, the sole director and shareholder of the clinic. Mr Tang’s evidence was that there were no complaints received by him from the plaintiff on the day of the massage.9 It was later accepted that Mr Tang did not actually recall what had occurred on that day.10 The defendant did not call Amy as a witness.
The decision at hearing
In the absence of Amy giving evidence as a witness, the Court drew a Jones v Dunkel inference.11
As to breach, it was agreed between the parties that the relevant risk of harm was the risk stemming from the forceful twisting motion on a customer’s body which would give rise to a risk of injury.12 Mr Tang accepted that a masseuse should not apply such forceful twisting and confirmed that he had since trained Amy to ensure this twisting did not occur.13
The Court found that breach of duty of care had been established in accordance with s 5B of the Civil Liability Act 2002 (NSW)14 on the basis that the risk of harm of physical injury when applying forceful and physical manipulation of the ankle was both foreseeable, not insignificant and such that a reasonable person in the position of the defendant would have taken precautions against this risk.15 Those precautions, as set out by the Court and in accordance with the opinion of Mr Coleman, were that:16
- Forceful and physical manipulation should not have been used at all, and
- The defendant ought to have ensured its therapists were experienced and qualified.
As the plaintiff’s medical evidence was unchallenged, the Court held that causation could be established.17 Ultimately, in the absence of appropriate medical and liability evidence to challenge the evidence presented by the plaintiff, the Court found the plaintiff had established liability in negligence.
The plaintiff was awarded the sum of $75,182.50.
The implications
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 party’s case and may lead to full acceptance of the other party’s evidence.
Further, this decision shows that businesses can be held vicariously liable for the negligent conduct of its employees, even if the employee is not qualified. It could be assumed that the plaintiff in this matter thought 'Amy' was qualified to provide these services and otherwise may not have proceeded with the service if she was made aware that Amy was not a qualified masseuse.
Whilst not governed by Australian Health Practitioner Regulation Agency (AHPRA), massage therapists are to adhere to a Code of Conduct and national competency standards for massage therapy. These standards state that massage therapists should have, inter alia, a detailed knowledge of anatomy, expertise in a range of manual therapy techniques, an understanding of normal function in relation to the soft tissues of the body and knowledge of cautions and contraindications to massage therapy.18 In the absence of qualifications and an adherence to these standards, there is an increased risk of foreseeable injury occurring to customers.
To avoid this risk, businesses should ensure that staff qualifications are cited prior to allowing their staff to provide services and that a proper induction, regular training and supervision are undertaken. A failure to do so not only exposes a business to liability in negligence, but also exposes businesses to regulatory and financial implications, in this case, a failure for the plaintiff to be able to process a claim through her health insurance.
Ultimately, this decision highlights the risks associated with businesses employing unqualified staff in therapeutic or health-related roles. It emphasises the need for compliance with professional standards and active management of staff qualifications.
Mammoliti v Oriental Massage Burwood Pty Ltd [2025] NSWDC 298
1 Jones v Dunkel (1959) 101 CLR 298; 32 ALJR 395; [1959] HCA 8; BC5900240. In this decision, the trial judge made an inference that the respondent’s counsel thought the respondent was more likely to succeed if he did not provide evidence at trial. Per Kitto J, it was concluded that if the respondent had given evidence, his evidence would not have assisted the defence of the claim. As such, the inference drawn by the Court was that the respondent’s counsel thought the respondent’s case was more likely to succeed if he was 'kept out of the box'.
2 Mammoliti v Oriental Massage Burwood Pty Ltd [2025] NSWDC 298; BC202540403 at [5].
3 Above, at [6].
4 Above n 2, at [6].
5 Above.
6 Above n 2, at [8].
7 Above.
8 Above n 2, at [9].
9 Above n 2, at [21].
10 Above.
11 Above n 2, at [12]; above n 1.
12 Above n 2, at [13].
13 Above.
14 See also in other states: Civil Liability Act 2003 (Qld), Civil Liability Act 2002 (WA), Civil Liability Act 2002 (Vic) and The Civil Liability Act 2002 (Tas).
15 Above n 2, at [15].
16 Above n 2, at [17].
17 Above n 2, at [20].
18 Association of Massage Therapists Massage Therapy Code of Practice (2012) 9
