In the recent matter of Mammoliti v Oriental Massage Burwood Pty Ltd [2025] NSWDC 298, the plaintiff (Ms Lisa Mammoliti) commenced a medical negligence compensation claim against the defendant, Oriental Massage Burwood Pty Ltd.
The plaintiff is a woman now aged 48 years of age. 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.
The defendant is a corporation which operated a massage and acupuncture clinic out of rooms situated in Mount Annan.
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. 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. 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.
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.
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 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.
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.
The defendant’s case, and commentary by the Court on same, was as follows (at [21] to [25]):
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.
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.
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.
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.
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…
At [26], the Court found that the plaintiff had established liability in negligence.
The Court awarded damages as follows:
General Damages – $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
Totalling $75,182.50.
Ultimately, on 8 August 2025, the District Court of New South Wales ordered as follows:
- that there be judgment and verdict for the plaintiff against the defendant in the sum of $75,182.50.
- interest thereon at the rates pertaining from time to time pursuant to the provision of s 100 of the Civil Procedure Act 2005 (NSW).
- that the defendant pay the plaintiff’s costs.
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