Makaroff v Nepean Blue Mountains Local Health District

[2021] NSWCA 107

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107

Hearing dates:

6 October 2020

Date of orders:

28 May 2021

Decision date:

28 May 2021

Before:

Macfarlan JA at [1];
Brereton JA at [81];
Simpson AJA at [208]

Decision:

With respect to the second respondent (Dr Percy):

(1)    appeal against the order for judgment in favour of the second respondent (the second defendant below) dismissed;

(2)   appellant to pay the second respondent’s costs of the appeal;

With respect to the first respondent:

(3)   appeal allowed; order for judgment in favour of the first respondent (the first defendant below) set aside;

(4)   order that judgment be entered for the appellant against the first respondent in the sum of $276,319.95, with effect from 14 June 2019;

(5)   first respondent to pay the appellant’s costs at first instance and of the appeal;

(6)   liberty to any party to apply, within 14 days, with respect to costs, calculation of damages and interest;

(7)   Notice of Contention dismissed.

Catchwords:

NEGLIGENCE — medical negligence — breach of duty — whether failure to advise the appellant that it was essential and urgent to organise orthopaedic review of injured shoulder constituted breach

NEGLIGENCE — medical negligence — peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether the respondents acted in a manner that was widely accepted by peer professional opinion as competent professional practice

NEGLIGENCE — medical negligence — causation — factual causation — whether it was more probable than not that the appellant would have had a better outcome but for the negligence – whether the appellant would have consulted an orthopaedic surgeon – whether the appellant would have undergone surgery prior to her shoulder injury becoming inoperable

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D, 5E, 5O, 5P

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Ambulance Service of NSW v Worley [2006] NSWCA 102

F v R (1983) 33 SASR 189

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

McKenna v Hunter and New England Local Health District [2013] NSWCA 476

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Sparks v Hobson [2018] NSWCA 29

Tabet v Gett (2010)240 CLR 537; [2010] HCA 12

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Category:

Principal judgment

Parties:

Diana Makaroff (Appellant)
Nepean Blue Mountains Local Health District (First Respondent)
Dr Paul Percy (Second Respondent)

Representation:

Counsel:
J Sheller SC (Appellant)
J Downing SC (First Respondent)
M Hutchings / C Coventry (Second Respondent)

Solicitors:
Attia Lawyers and Consultants (Appellant)
Hicksons Lawyers (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)

File Number(s):

2019/212257

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 715

Date of Decision:

14 June 2019

Before:

Harrison AsJ

File Number(s):

2013/168790

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 19 September 2010 the appellant (Ms Makaroff) suffered a dislocated right shoulder and a bite wound on her right forearm as a result of an incident involving one of her horses. She was taken to the first respondent’s hospital for plastic surgery on the bite and was discharged on 21 September 2010. Post-discharge, the appellant was in the care of her general practitioner, the second respondent (Dr Percy). She did not have orthopaedic review or radiological examination of her shoulder until 3 February 2011, by which time it was too late for her shoulder to be repaired surgically as she had suffered a significant rotator cuff tear. The appellant alleged that had her injury been diagnosed promptly she would have had it surgically repaired with a good outcome, and that the delay in diagnosis was attributable to breaches of duties by the Hospital and Dr Percy.

The primary judge rejected the appellant’s claims on the basis that s 5O of the Civil Liability Act precluded any liability of the respondents in negligence arising because they acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. Her Honour further found that, in any event, even if breach was established the appellant’s causation argument failed.

The primary issues on appeal were:

1. Whether the Hospital breached its duty of care to the appellant;

2. Whether any such breach by the Hospital caused the appellant loss;

3. Whether Dr Percy breached his duty of care to the appellant;

4. Whether any such breach by Dr Percy caused the appellant loss.

The Court (Brereton JA and Simpson AJA; Macfarlan JA dissenting) allowed the appeal in relation to the Hospital. The Court (Macfarlan JA, Brereton JA and Simpson AJA) dismissed the appeal in relation to Dr Percy.

In relation to Issue 1 (breach – Hospital):

(Per Brereton JA and Simpson AJA):

It was implicit that the experts’ view was that proper professional practice required the Hospital to advise the appellant that it was essential that she have orthopaedic review urgently: [98], [109], [132] (Brereton JA), [247] (Simpson AJA). Although the appellant was told by the Hospital that she should see an orthopaedic surgeon, there was no finding or evidence that the essentiality and urgency of the consultation was conveyed to her: [124], [132] (Brereton JA). Breach of duty by the Hospital was therefore established: [132] (Brereton JA), [248] (Simpson AJA).

(Per Simpson AJA):

The Hospital further breached its duty by failing to refer the appellant for radiological investigation: [246].

(Per Brereton JA):

Although the particulars below did not explicitly include a reference to time, it is clear that the question of time, or urgency, was a live one at the trial, and was inherent in the appellant’s case and was understood to be so: [90]. No new particular of negligence was therefore sought to be raised on appeal: [102].

(Per Macfarlan JA, contra):

The allegations of negligence contained in the grounds of appeal were not made at first instance and therefore should not be allowed on appeal: [65], [67]. In any event, the allegations were not established by the evidence. Even though there was evidence that suggested orthopaedic review and radiological examination should have occurred within a three-week period from the date of injury, or at least from discharge from the Hospital, no expert said that he or she would have advised the appellant of that time period and/or that it was a departure from proper professional practice for her not to have been so advised: [67].

In relation to Issue 2 (causation - Hospital):

(Macfarlan JA found it unnecessary to decide: [80]).

(Per Brereton JA and Simpson AJA):

But for the Hospital’s breach of duty, the appellant would have undergone surgery before her injury became inoperable, resulting in a better outcome: [203] (Brereton JA), [260] (Simpson AJA). The appellant therefore established causation as against the Hospital.

In relation to Issue 3 (breach – Dr Percy):

(Per Macfarlan JA, Brereton JA and Simpson AJA agreeing as to result):

Breach of duty by Dr Percy was not established.

Advice provided by Dr Percy to the appellant of the “need” for orthopaedic review was sufficient: [77] (Macfarlan JA), [262] (Simpson JA).

The evidence established that Dr Percy acted in a manner that was widely accepted by peer professional opinion as competent professional practice for a general practitioner, applying s 5O of the Civil Liability Act 2002 (NSW): [84] (Brereton JA).

In relation to Issue 4 (causation – Dr Percy):

(Macfarlan JA found it unnecessary to decide, Brereton JA and Simpson AJA agreeing: [80] (Macfarlan JA), [84] (Brereton JA), [262] (Simpson AJA)).

Judgment

1. MACFARLAN JA: On 19 September 2010 Ms Diana Makaroff, the appellant, suffered a dislocated right shoulder and a bite wound on her right forearm as a result of an incident at her country property involving one of her horses. She was taken by ambulance to the Hawkesbury District Hospital where her shoulder was reduced under anaesthesia. She was then transferred on the same day to Nepean District Hospital (“the Hospital”), for whose conduct the first respondent on this appeal is legally responsible, for plastic surgery on the bite.

2. After Ms Makaroff’s discharge from the Hospital on 21 September 2010, she did not have an orthopaedic review of her shoulder, or a radiological examination of it, until February 2011, by which time it was too late for the shoulder to be repaired surgically as she had suffered a significant rotator cuff tear.

3. Ms Makaroff blamed that delay on breaches of duty by the Hospital and Dr Paul Percy, who is the second respondent on the appeal and was Ms Makaroff’s general practitioner. Accordingly, she commenced proceedings against both parties for damages.

4. After a nine-day hearing in the Common Law Division of the Supreme Court before Harrison AsJ, her Honour delivered judgment on 14 June 2019 in favour of the Hospital and Dr Percy ([2019] NSWSC 715).

5. For the reasons given below, I consider that Ms Makaroff’s appeal against the judgment should be dismissed with costs.

THE GROUNDS OF APPEAL

6. Ms Makaroff’s grounds of appeal against the judgment in favour of the Hospital were, as ultimately pressed, that findings of negligence should have been made to the following effect:

1. That the Hospital failed to warn or notify Ms Makaroff of the need for her to organise an orthopaedic review, including appropriate radiology, within 14 to 21 days of 20 September 2010 (being the day before her discharge from the Hospital);

2. That it failed to tell Ms Makaroff of “the risks associated with” her shoulder dislocation in circumstances where there was no orthopaedic review, including appropriate radiology, within 14 to 21 days from 20 September 2010;

3. That it failed to formulate an appropriate plan for Ms Makaroff’s treatment, including orthopaedic review and appropriate radiological examination, and to communicate it to Ms Makaroff.

7. As against Dr Percy, Ms Makaroff contended on appeal that the primary judge should have made findings of negligence to the following effect:

1. That he failed to arrange appropriate radiology in relation to Ms Makaroff’s shoulder or, alternatively, to advise her as to the essential nature of an orthopaedic review;

2. That he failed to warn Ms Makaroff of the risks associated with delay in obtaining an orthopaedic review and an appropriate radiological examination.

8. Ms Makaroff also contended in respect of both respondents that the primary judge should have found on the issue of causation of Ms Makaroff’s loss that if the negligence had not occurred her injury would have been the subject of surgery before it became “inoperable”.

9. Ms Makaroff further contended that the primary judge erred in holding that s 5O of the Civil Liability Act 2002 (NSW) gave the respondents defences to her claim. That section is in the following terms:

“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.”

10. By a supplementary submission, Ms Makaroff also contended that s 5P of the Civil Liability Act, which is in the following terms, precluded the application of s 5O to her claims:

“5P   Division does not apply to duty to warn of risk

This Division [which includes s 5O] does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.”

THE FACTUAL CIRCUMSTANCES

Ms Makaroff’s admission to the Hospital

11. As noted above, after having treatment on her right shoulder at Hawkesbury Hospital, Ms Makaroff was transferred to the Hospital for plastic surgery on her bite wound.

12. In her witness statement dated 25 July 2018, Ms Makaroff said that when she was discharged from the Hospital on 21 September 2010 there was no observable bruising on the outer part of her right upper arm or shoulder and that she believed that over time her shoulder would get better. She said that she was not told that there was any possibility of a serious internal injury which required further investigation. She was not given a referral to an orthopaedic specialist but an appointment was made for her to attend the Plastics Clinic at the Hospital on 28 September 2010.

13. Ms Makaroff said that when she left the Plastics Clinic on 28 September 2010 she “was handed a referral to Dr New, an orthopaedic specialist. There was no message with this referral, just a routine follow-up”. She continued:

“[51] When I got home with the referral, I telephoned Dr New’s rooms, either that day or the next, to make my appointment. A lady answered: ‘Dr New’s Phone.’ I said: ‘I have a referral from Nepean Hospital.’ I’m not sure if she had given me a date and time at this stage, but she said: ‘It will be $200.00.’ I said: ‘Oh, I don’t have that at the moment.’ She then asked me: ‘What’s your problem?’ I said: ‘I had a dislocated shoulder.’ She said: ‘Oh, only a dislocated shoulder, Dr New is a spinal specialist. Just go back to your GP for follow-up, then you can be bulk billed.’ I said: ‘Okay, thanks.’

[52] I telephoned Dr Paul Percy’s rooms for my appointment which was made for the 14 October 2010. I’m not sure whether that was the first available time, or if I gave myself a bit more time so I could drive myself.”

14. Dr Francesca Rannard, who was in September 2010 an unaccredited registrar in the Plastic Surgery section of the Hospital, gave evidence of what occurred during Ms Makaroff’s admission, based on the Hospital’s clinical records and her usual practices. Her notes in relation to an attendance on Ms Makaroff on 20 September 2010 include the following:

“(P) (Plan) ortho opinion – how long in collar + cuff
Check has [follow up] at Hawkesbury re dislocated shoulder.”

15. Dr Rannard’s witness statement included the following:

“In light of what I recorded in the entry for 20 September 2010 and consistent with my usual practice, I would have said to Ms Makaroff words to the effect of: ‘Have you got an appointment to go back and see an orthopaedic surgeon about your shoulder?’ If she told me that she didn't have an appointment, then I would have said to her words to the effect of: ‘You'll need to see someone about your shoulder. We'll check about the follow up with Hawkesbury Hospital.’”

16. Dr Rannard was unable to say what steps she took to give effect to the “Plan” that she recorded in her notes.

17. On 28 September 2010, Dr Joe Lee, then an intern in the Plastic Surgery section of the Hospital, made a note for the Hospital’s records, which included the words “Orthopaedic f/up”, when he saw Ms Makaroff in the Plastics Outpatient Clinic on that day. He said that he provided Ms Makaroff with a “written referral to follow up with her general practitioner… so that orthopaedic review in relation to her shoulder could be arranged”. Notes he recorded on the written referral given to Ms Makaroff included the words “need ortho follow up RE shoulder”. Based on his usual practice, Dr Lee said that he would have said at that time to Ms Makaroff:

“With your shoulder, that’s not within our area in plastic surgery. You need to see an orthopaedic surgeon for follow up. To do so, you need to go and see your general practitioner and get a referral”.

18. Dr Lee said that, in light of Ms Makaroff’s evidence that she was given a referral to Dr New, it was “entirely possible” that he gave Ms Makaroff a business card for Dr New whom he knew to be an orthopaedic specialist. He said that if he did this, he would have said:

“With your shoulder, I’ve indicated you need to see an orthopaedic surgeon. Here is a card for one of the doctors who works here. You can ask your GP to refer you to see him”.

19. The primary judge accepted Dr Lee’s evidence as follows:

“In my view, it is most likely on the balance of probabilities that Dr Lee told the plaintiff [t]hat she needed to see an orthopaedic surgeon and handed her a ‘To Whom It May Concern’ letter that fit under the heading plan ‘need ortho follow up re shoulder.’ It is most likely that Dr Lee also handed the plaintiff a card for Dr New and said that she could ask her general practitioner to refer her to see him. This evidence is consistent with the plaintiff phoning Dr New’s rooms. In any event, she understood that she had to contact Dr New’s rooms to make an appointment.”

Consultations with Dr Percy

20. The primary judge made the following findings concerning Ms Makaroff’s first post-injury attendance on Dr Percy, on 14 October 2010:

“[257] It is common ground that Dr Percy told the plaintiff that he was not an orthopaedic surgeon. I accept Dr Percy’s evidence that the plaintiff told him that she would prefer not to attend an orthopaedic specialist because she felt she could not afford it, and that she asked Dr Percy whether he could treat her instead. Dr Percy advised the plaintiff that he was not an orthopaedic specialist, and that her shoulder injury would be best cared for by specialist.

[258] It is clear that Dr Percy and the plaintiff discussed Dr New during this conversation, as it was only then that the plaintiff learned of Dr New’s service in the Armed Services. I accept that Dr Percy said to the plaintiff that he was not a specialist, but that Dr New was the best person to see. Dr Percy told her she should call him and arrange to see him. Dr Percy also said that the plaintiff should have been able to get reimbursed by Medicare for the consultation, and that she replied, ‘I understand’. I also accept that at the 14 October 2010 consultation, the plaintiff told Dr Percy that she had a referral to see Dr New.”

21. In making these findings, her Honour appears implicitly to have accepted Dr Percy’s evidence that these discussions followed Ms Makaroff telling Dr Percy that she had telephoned Dr New. Ms Makaroff gave evidence that she told Dr Percy that she had done that.

22. Dr Percy gave evidence that when he next consulted with Ms Makaroff, on 28 October 2010, he examined her shoulder and said to her:

“Your shoulder is still not completely healed. I know you usually do very heavy farm work and before you start doing this type of work you really should be seen by an orthopaedic surgeon. There could still be an underlying problem and I don’t want you to make it worse by starting to do heavy work. I still want you to be seen by Dr New.”

23. Whilst the primary judge did not expressly accept this evidence, her preference generally for Dr Percy’s evidence over that of Ms Makaroff (see [37] below) indicates that the evidence was accepted.

24. The primary judge also made the following explicit finding in relation to this consultation:

“I accept that Dr Percy told the plaintiff, ‘[Y]ou should only do gentle and smooth shoulder and elbow exercises and activities within your level of comfort and pain. Also, any exercise with the right arm should be non-weight bearing’. At that point Dr Percy had formed the opinion, based upon the plaintiff’s range of movement, that the supraspinatus tendon was intact but that he still wanted her to see Dr New.”

25. The primary judge accepted that at Ms Makaroff’s third post-injury appointment with Dr Percy, on 11 November 2010, Ms Makaroff told Dr Percy that she reinjured her shoulder by performing maintenance of her horse stable. Her Honour did not resolve an issue as to whether Ms Makaroff told Dr Percy that she was using a mattock when she suffered this further injury. Her Honour continued:

“[323] Dr Percy said that due to concerns about the plaintiff’s mental health, he did not insist that she see an orthopaedic specialist on this occasion.

[324] The plaintiff could not identify when she acted on Dr Percy’s mental health plan by initiating contact with Ms Santosi. However, she did eventually consult a psychologist and psychiatrist after her heart bypass surgery on 8 August 2013.”

26. Her Honour concluded:

"In my view, it is more likely than not that it was after 28 October 2010 and before 11 November 2010 that the larger full-thickness rotator cuff tear occurred. Alternatively, if the full-thickness rotator cuff tear did occur during the initial dislocation, that tear was extended and enlarged between those two consultations.”

27. The primary judge gave the following description of Ms Makaroff’s evidence concerning her fourth post-injury consultation with Dr Percy, on 9 December 2010:

“The plaintiff deposed that on 9 December 2010, she attended her scheduled appointment with Dr Percy. At this appointment Dr Percy said, ‘We might get an ultrasound done to see how your shoulder is healing’. He did not suggest that she needed an ultrasound urgently, and he didn’t give her a referral for the procedure or ask to see her again. As such, the plaintiff said she did not do anything about the recommendation until January 2011, when she rang Dr Percy’s rooms to request a referral for the ultrasound. She said that after she got the referral, she made the appointment straight away for 3 February 2011.”

28. Her Honour also quoted evidence given by Dr Percy that he had said to Ms Makaroff at this consultation:

“If you are going to continue to disregard my advice to see an orthopaedic specialist for advice about staging of investigation and treatment, then I can see no reason why you should not at least start investigations by having an ultrasound as suggested at your last visit. You need to undergo the ultrasound as soon as you can so that we can determine what further treatment you require... We are approaching Christmas and it will become harder to get in for any specialist review if we decide that is needed once we see the ultrasound results.”

29. The primary judge continued:

“[351] On 9 December 2010, Dr Percy wrote and gave the plaintiff a referral to PRP Imaging for an ultrasound of her right shoulder with particular attention to deltoid and supraspinatus regions. Dr Percy explained in cross examination that he wrote a referral for an ultrasound, as the plaintiff still had not seen an orthopaedic surgeon.

[352] In accordance with his usual practice when referring patients for investigations, he told the plaintiff that she should contact his rooms the day after she had the ultrasound so they could discuss [the] next steps in her treatment plan and potentially schedule a consultation.”

30. The primary judge expressly accepted Dr Percy’s evidence that on 24 January 2011, Ms Makaroff telephoned his rooms and said:

“I still have not had the ultrasound of my right shoulder performed because I have lost the ultrasound request. Could you please write me another referral?”

31. This reflected Dr Percy’s note of the call:

“Per phone - still hasn’t had shoulder ultrasound and now can’t find u/s request - ■■■ new request posted for ultrasound of ® shoulder”.

32. After Dr Percy read the report of Ms Makaroff’s ultrasound examination of 3 February 2011, he made the following note:

“Significant tears of 2 tendons and will need referral to orthopaedic specialist. See Dr Shenstone in the next week to refer to Dr David Duckworth or Dr Desmond Bokor.”

33. On 8 February 2011 Ms Makaroff saw Dr David Shenstone, Dr Percy’s locum. On 9 February 2011 Dr Shenstone gave Ms Makaroff a referral to Dr David Duckworth, an orthopaedic surgeon.

34. Ms Makaroff had a fifth and final post-injury consultation with Dr Percy on 5 April 2011 when he discussed with her a report from Dr Duckworth and noted that Dr Duckworth opined that surgery on her shoulder was not an option and recommended physiotherapy instead.

THE JUDGMENT AT FIRST INSTANCE

35. Whilst the judgment at first instance is some 157 pages in length, it is sufficient for the purposes of this appeal to refer to the following limited aspects of it.

36. Expert witnesses referred to in her Honour’s judgment include the following:

1. Orthopaedic specialists: Professor David Sonnabend and Drs George Murrell, John Cummine and Phillip Duke.

2. Emergency physicians: Associate Professor John Raftos and Dr Sanj Fernando.

3. General practitioners: Associate Professor Vincent Roche and Drs David Wai and Kenneth Dobler.

37. In relation to the credibility of witnesses, the primary judge concluded that she should treat Ms Makaroff’s evidence with caution. Conversely, she accepted Dr Percy’s evidence as reliable and, where his evidence conflicted with that of Ms Makaroff, her Honour preferred his evidence, subject to one exception. The exception concerned Dr Percy’s evidence that on 11 November 2010 Ms Makaroff stated that she reinjured her shoulder when using a mattock on her property.

Claim against the Nepean District Hospital

38. The primary judge addressed the seven particulars of negligence then pressed against the Hospital. These are of varying relevance to the appeal in light of Ms Makaroff’s refinement of her case in this Court:

(a) Failing to order or refer for an ultrasound or MRI investigation of the right shoulder during the 19 to 21 September 2010 inpatient admission

39. Her Honour rejected this allegation of breach of duty on the basis that “it was accepted peer professional opinion as competent professional practice for the imaging of the plaintiff’s right shoulder to have been deferred for two to three weeks, and that it was not necessary to carry it out while the plaintiff was an inpatient”.

(b) Failing to order or refer for an ultrasound or MRI of the plaintiff’s right shoulder on 28 September 2010

40. This particular was rejected also, on the basis that all the experts agreed that deferring imaging until about three weeks post-injury was reasonable and appropriate.

(c) Failing to advise the plaintiff as to the likelihood of a rotator cuff injury and the appropriate follow up treatment required

41. Her Honour noted that Dr Duke was the only expert whose evidence supported this particular and continued:

“[176] All other experts accepted that it was adequate to convey to the plaintiff that she needed to see an orthopaedic surgeon for review of her shoulder without necessarily explaining why that follow up was required. They gave this opinion because at that time, the plaintiff was not ready for proper clinical examination or imaging, and even partial examination results may have been ‘unreliable’. They felt it would have been potentially misleading and alarming to inform her at that time about the suspicion of a rotator cuff tear.

[177] I prefer the evidence of Professors Sonnabend, Murrell and Dr Cummine that advice need not be given as to the likelihood of a rotator cuff injury on 28 September 2010. It is my view that the advice that the plaintiff received at Nepean Hospital as to the follow-up review required was widely accepted by peer professional opinion as competent professional practice. This allegation of breach of duty of care fails.”

(d) Failing to undertake appropriate clinical testing for rotator cuff function or arranging it in a timely manner

42. This particular was rejected on the basis that “all experts, except for Professor Murrell and Dr Duke, accepted that it was reasonable to defer examination for approximately three weeks, provided that there was a plan in place for orthopaedic review within that timeframe”. Her Honour thus preferred the opinion of the majority of the experts (comprising Professor Sonnabend, Associate Professor Raftos and Drs Fernando and Cummine) that it was reasonable to defer examination. I note that in any event Professor Murrell’s evidence appears to have been in fact consistent with the majority to which I have referred.

(e) Failing to ensure the plaintiff was referred to an orthopaedic surgeon

43. This particular was rejected on the basis that all participating experts agreed that as at 28 September 2010 (which was the date to which this particular was directed), “it was sufficient for arrangements to be made for orthopaedic review in the near future”.

(f) Failing to inform the plaintiff that an ultrasound of the shoulder and a consultation with an orthopaedic surgeon was essential

44. Her Honour rejected this particular on the basis that “[o]n the expert evidence, it was widely accepted by peer professional opinion as competent professional practice to advise the plaintiff that she needed orthopaedic review, but not necessarily to advise her of the need for an ultrasound or MRI”. Therefore, it was sufficient that Ms Makaroff was advised by Dr Lee on 28 September 2010 that she “needed” orthopaedic review (see [18]-[19] above).

(g) Failing to advise the plaintiff appropriately as to the care she should take with her shoulder and inappropriately advising her to exercise her shoulder

45. This particular was rejected by her Honour and was not pressed on appeal.

(h) Failing to identify the rotator cuff tear and organise/arrange the repair in a timely manner

46. Again, this particular was rejected by her Honour and was not pressed on appeal.

Generally

47. In light of these findings, her Honour concluded that the Hospital had established its defence under s 5O of the Civil Liability Act (as to which, see [9] above).

The claim against Dr Percy

48. Her Honour assessed the particulars of negligence then pressed against Dr Percy by reference to Dr Percy’s consultations with Ms Makaroff between 14 October 2010 and 5 April 2011.

The consultation of 14 October 2010

49. Her Honour referred to a difference in the expert opinions of Associate Professor Roche and Dr Dobler, on the one hand, and Dr Wai, on the other hand. The former opined that they would not have told Ms Makaroff at this consultation about possible complications if she did not have an orthopaedic diagnosis, whereas Dr Wai said “I would have tried to convince her to see a specialist quickly, and I would have mentioned [the possible] complications…”.

50. Her Honour said that she preferred the evidence of the former two experts to that of Dr Wai.

51. Her Honour then referred to the opinions of Associate Professor Roche and Dr Dobler, with which Professor Murrell agreed, that it would not have been appropriate for Dr Percy to arrange radiology. Instead, this would have been a task for Ms Makaroff’s treating orthopaedic surgeon. The effect of Dr Wai’s evidence was to the contrary, in that he considered that Dr Percy should have referred Ms Makaroff to the emergency department of a hospital (which would presumably have resulted in imaging being undertaken).

52. Her Honour continued:

“[272] Dr Wai stated that he would have referred the plaintiff to the emergency department of a hospital. However, Associate Professor Roche and Dr Dobler disagreed, as her sub-acute right shoulder injury would have been categorized by an emergency department as only triage severity 4 or 5. Associate Professor Roche’s evidence was that the likely outcome of referring the patient to the hospital as an outpatient was that she would have been sent back to her GP, or referred again to see Dr New. Associate Professor Roche described the process as akin to a revolving door.

[273] Dr Dobler’s evidence is to the same effect as that of Associate Professor Roche” (references omitted.)

53. As a result, her Honour accepted that Dr Percy’s care and treatment of Ms Makaroff on 14 October 2010 was widely accepted by peer professional opinion as competent professional practice.

The consultation on 28 October 2010

54. Her Honour referred to evidence given by Associate Professor Roche about this consultation as follows:

“Associate Professor Roche expressed the opinion that Dr Percy’s 28 October 2010 examination of the plaintiff revealed she was close to normal. She exhibited full abduction and reasonable range of movement. As the plaintiff was telling Dr Percy that her symptoms were much improved, Dr Roche gave the opinion that referring or organising an appointment for her to see the orthopaedic specialist was still the best way forward. There was no urgency to do an ultrasound or an MRI for these reasons’ (references omitted.)

55. As in relation to the 14 October 2010 consultation, Dr Wai maintained that Dr Percy should have referred Ms Makaroff on this occasion to the emergency department of a hospital. Her Honour rejected Dr Wai’s opinion for the same reasons she had given in relation to the earlier consultation.

56. Her Honour also noted that all of the general practitioner experts “agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 28 October 2010 was appropriate, and that it was in accordance with peer professional opinion as competent professional practice for Dr Percy… not [to] diagnose a rotator cuff injury”.

The consultation of 11 November 2010

57. For the reasons she had given in relation to the 14 October 2010 consultation, the primary judge rejected Ms Makaroff’s contention that on 11 November 2010 Dr Percy should have sent her to a hospital’s emergency department. Speaking generally, her Honour concluded that Dr Percy’s care and treatment of Ms Makaroff on 11 November 2010 was in accordance with the standard required by peer professional opinion as competent professional practice.

Consultation of 9 December 2010

58. The primary judge accepted the evidence of Associate Professor Roche and Dr Dobler that Dr Percy acted appropriately at the 9 December 2010 consultation in referring Ms Makaroff for an ultrasound. She therefore rejected Dr Wai’s opinion that, on this occasion as well as earlier, Ms Makaroff should have been referred promptly to the emergency department of a hospital.

Subsequent consultations with Dr Percy

59. Her Honour found that Dr Percy did not depart from competent professional practice in connection with these consultations.

Conclusions concerning claims against Dr Percy

60. Her Honour expressed the following conclusions concerning the allegations of negligence against Dr Percy:

“When I consider Dr Percy’s care with respect to the plaintiff’s consultations on 10 October 2010, 28 October 2010 and 11 November 2010, I do so having accepted his evidence that the plaintiff told him she had a referral to see an orthopaedic specialist, and that he had informed her that [he] could not offer the same level of specialist care. By the plaintiff’s fourth appointment on 9 December 2010, I accept that Dr Percy had determined that she did not intend to see the orthopaedic specialist, and so he provided a referral for an ultrasound. She lost it. He provided her with another. At the plaintiff’s final appointment on 5 April 2011, she and Dr Percy discussed Dr Duckworth’s referral for physiotherapy, which she was not attending.”

61. Her Honour accordingly concluded that Dr Percy discharged his onus under s 5O(1) of the Civil Liability Act “of demonstrating that his care in every appointment was to the standard accepted by peer professional opinion as competent professional practice”. Her Honour noted that by reason of s 5O(4), “peer professional opinion does not have to be universally accepted to be considered widely accepted”.

Causation of loss

62. Her Honour was not satisfied that Ms Makaroff had proved on the balance of probabilities that, but for the respondents’ alleged negligence, she would not have suffered an ongoing injury to her shoulder. Her Honour continued:

“[I]t is my view that even if she had been referred to an orthopaedic surgeon before Christmas 2010, and had agreed to undergo surgery immediately, she would more likely than not have waited for the operation as a public patient until at least November 2011.”

Other issues

63. For completeness, I list the following further conclusions of the primary judge which are not relevant to the issues on appeal:

1. The respondents’ defences under ss 5L and 5G of the Civil Liability Act (that the risk was obvious and/or involved a dangerous recreational activity) were rejected.

2. The primary judge found that if (contrary to her view) Ms Makaroff was entitled to succeed against the respondents, Ms Makaroff’s judgment should be reduced by 15% for her contributory negligence.

3. Dr Percy’s defence that the claim against him was statute-barred was rejected.

4. The primary judge assessed damages on a contingent basis in case she was found on appeal to have erred on the issue of the respondents’ liability.

CONSIDERATION OF THE APPEAL

64. The primary judge rejected Ms Makaroff’s claims against the respondents on the basis that s 5O of the Civil Liability Act (see [47] and [61] above) precluded any liability of them in negligence arising, because they “acted in a manner that… was widely accepted in Australia by peer profession opinion as competent professional practice”. Her Honour’s reasoning and findings necessarily involved the further proposition that Ms Makaroff had not proved that either of the respondents had acted negligently in a manner that, quite apart from s 5O, would have rendered them liable to her. I prefer to consider the validity of this latter proposition (which, if accepted, would entitle the respondents to judgment) as the proper operation of s 5O remains the subject of differences in judicial opinion (McKenna v Hunter and New England Local Health District [2013] NSWCA 476 at [1], [159]-[166]; Sparks v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 at [17]-[18], [27]–[40], [211]-[217], [332]-[333]). As well, approaching the appeal through the lens of s 5O would raise the question of the possible relevance of s 5P of the Civil Liability Act (see [10] above) which Ms Makaroff did not rely on at first instance but sought to do so on appeal.

Ground 1 against the Hospital – advice as to timing

65. This ground is identified at [6] above as a failure “to warn or notify Ms Makaroff of the need for her to organise an orthopaedic review, including appropriate radiology, within 14 to 21 days of 20 September 2010 (being the day before her discharge from the Hospital)”. The Hospital contended that this allegation of negligence should not be permitted to be made on appeal because it was not made at first instance and was in any event not established by the evidence. For the reasons that appear below I accept both of these contentions. I turn first to the manner in which Ms Makaroff’s case was conducted at first instance.

66. Ms Makaroff’s First Amended Statement of Claim relevantly alleged that the respondents owed duties of care extending to five identified matters and that they breached these duties in five corresponding respects. On appeal, Ms Makaroff’s senior counsel indicated that only three of these corresponding allegations of duty and breach were pressed and that one should in any event be disregarded because it was subsumed by one of the others. That left remaining as relevant to the appeal only the following two first instance allegations of breach (with their corresponding allegations of duties owed):

1. Failing “to advise the plaintiff as to the likelihood of a rotator cuff injury and the appropriate follow up treatment”.

2. Failing to take reasonable care to ensure “the plaintiff was seen by an Orthopaedic Surgeon and informing her that consultation was essential” (Judgment at [16]-[17]; appeal transcript p 25).

67. Unlike the ground of appeal presently under consideration, neither of these allegations at first instance incorporated a contention that Ms Makaroff should have been advised to take relevant action within a certain time period. Nor was this Court referred to any written or oral submission made at first instance to that effect, and I have not been able to locate any. There was evidence that suggested orthopaedic review and radiological examination should have occurred within a three-week period from the date of the injury, or at least from Ms Makaroff’s discharge from the Hospital, but the presently critical point is that no expert said that he or she would have advised Ms Makaroff of that time period and/or that it was a departure from proper professional practice for Ms Makaroff not to have been so advised.

67. The following exchange occurred in the course of the medical experts’ conclave:

“WITNESS SONNABEND: I think the important question is whether it was made clear to her that she had to follow it up. I – I can’t give you a yes or no answer to that, but if it was clear to her that she had to, then it was essential that she be followed up in short time, that would be appropriate and sufficient. If it was not, that would be inappropriate and insufficient.

FINNANE: So should she have been told it was urgent or important that she did something[?]

WITNESS SONNABEND: I believe so, yes.

FINNANE: Does anybody disagree with that?

WITNESS CUMMINE: It depends again, the word urgent, within two to three weeks.”

69. The exchange supports the view that Ms Makaroff should have been told that “it was essential that she be followed up [with an orthopaedic review] in [a] short time” but that falls short of supporting the particular, now sought to be raised for the first time on appeal (see [65] above), that she should have been advised to organise a review within 14 to 21 days of 20 September 2010. Certainly, Dr Cummine sought to explain the word “urgent” as meaning “within two to three weeks”, as did Professor Sonnabend on the same page of the transcript, but neither said, at least expressly, that that period of time should have been identified to Ms Makaroff. Earlier in the conclave, Associate Professor Raftos said that he thought Ms Makaroff “needed to see an orthopaedic surgeon; and I think that that was within three weeks…” but again it was not said that the time period needed to have been stated to Ms Makaroff.

70. It is clear from the primary judge’s unchallenged findings, and the evidence that supported them, that Ms Makaroff was advised, at least when she attended the Plastics Clinic on 28 September 2010, that she needed to see an orthopaedic surgeon for a follow-up in relation to her shoulder. Dr Lee gave evidence, which the primary judge accepted (see [17]-[19] above), to this effect. His evidence was consistent with Ms Makaroff’s evidence that on that day she was given a referral to Dr New, and with Dr Percy’s evidence, that Ms Makaroff told him on 14 October 2010 that she had been given such a referral (see [13] and [20] above). Ms Makaroff was therefore in fact advised of the “need for her to organise an orthopaedic review”, to use the language of the first ground identified in paragraph [6] above. She was not advised of the time period within which that should occur but, as I have earlier said, the evidence did not establish that she should have been. Moreover, this aspect of Ground 1 should not be permitted to be raised on appeal because, as I have indicated in [67] above, it was not pleaded or litigated at first instance.

71. I add that Ms Makaroff’s written submissions on appeal accepted that she had been advised of the need for her to organise an orthopaedic review as they complained that the Hospital did not “formulate a plan which involved any time issue or any detail beyond telling the Appellant she needed to have an orthopaedic review” and that Dr Lee told Ms Makaroff only of “the need for a follow-up with an orthopaedic surgeon which was meant to be achieved through a general practitioner” (emphasis added to both quotations).

72. For these reasons, this ground of appeal must be rejected.

Ground 2 against the Hospital – failure to advise of risks

73. For the reasons quoted in [41] above, the primary judge rejected Ms Makaroff’s allegation that she should have been advised of the risks of not having an orthopaedic review of her shoulder injury. Her Honour noted that none of the experts, other than Dr Duke, supported Ms Makaroff’s allegation that she should have been told that there was a risk that she had suffered a more serious injury than was apparent. As her Honour said, the experts considered that it would have been “potentially misleading and alarming” to Ms Makaroff to do so.

74. On appeal, Ms Makaroff did not identify any basis for this Court concluding that the primary judge was in error in accepting this preponderance of expert evidence. This ground should therefore also be rejected.

Ground 3 against the Hospital – failing to formulate an appropriate plan

75. None of the particulars of negligence with which the primary judge was required to deal (see [38]-[46] above) coincided with the allegation made in this ground of appeal. Ms Makaroff did however, outside the ambit of the particulars, contend that the Hospital failed to prepare an adequate plan.

76. Giving evidence by reference to her contemporaneous notes, Dr Rannard noted the existence or creation of a “plan” which principally involved an orthopaedic opinion being obtained (see [14]-[15] above). Her Honour described this as “a plan of sorts”. Establishing any inadequacy of this plan would not however assist Ms Makaroff’s appeal because a deficiency in any uncommunicated plan of the Hospital could not have been causative of Ms Makaroff’s loss unless it was reflected in a failure of the Hospital to take some required other step, such as the giving of appropriate advice to Ms Makaroff. As I have indicated in [6] above, the only subsisting allegations of negligence in the failure of the Hospital to take an appropriate further step are contained in the first and second findings sought against the Hospital, which I have addressed and rejected above. This ground of appeal must therefore also be rejected.

Ground 1 against Dr Percy – failure to advise that orthopaedic review was essential

77. The observations at [70] above are applicable to this ground. Ms Makaroff was told by the Hospital that she needed to arrange an orthopaedic review and this was confirmed by what Dr Percy said to her at the consultations of 14 and 28 October 2010. On her appeal against the Hospital, Ms Makaroff did not suggest that there was a distinction between the concept of essentiality of an orthopaedic review and the need for one: for example, the submissions quoted in [71] simply refer to “need”. If there is any distinction between them, it is at most one of emphasis and the expert evidence did not highlight any importance to be attached to any such distinction. In these circumstances, advice to Ms Makaroff of the “need” for orthopaedic review, without use of the word “essential”, was sufficient.

78. This ground must therefore be rejected.

Ground 2 against Dr Percy – failure to advise of risks

79. For reasons similar to those given for the rejection of the corresponding allegation of negligence against the Hospital (see [73] above), this ground in relation to Dr Percy should also be rejected. As indicated in [49]-[50] above, Associate Professor Roche and Dr Dobler did not consider that Ms Makaroff should have been told of possible complications if she did not have an orthopaedic review and imaging, whereas Dr Wai opined otherwise. The reasons given by the first two of these experts (as indicated in [49] above) were rational and no reason was identified on appeal on behalf of Ms Makaroff for concluding that the primary judge erred in accepting them.

Conclusion

80. As I have concluded that each of Ms Makaroff’s grounds of appeal should be rejected and that she did not therefore establish that either of the respondents breached the duties of care that they owed to her, the appeal should be dismissed with costs. It is unnecessary in these circumstances to deal with the issue of causation of loss as its resolution would require extensive consideration of the evidence and the issue was not fully addressed in the oral argument on appeal or in the judgment at first instance.

81. BRERETON JA: The appellant Ms Diana Makaroff suffered a dislocated right shoulder and a bite wound on her right forearm on 19 September 2010 as a result of an incident involving one of her horses. Later that day her shoulder was reduced under anaesthesia at the Hawkesbury District Hospital, and she was then transferred to Nepean District Hospital (“the Hospital”), which is operated by the first respondent Nepean Blue Mountains Local Health District, for plastic surgery on the bite. An x-ray performed at the Hospital on 19 September 2010 reported “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency”. However, neither during her admission nor following her discharge on 21 September 2010 did Ms Makaroff have further investigation for a possible rotator cuff injury (such as by ultrasound or MRI), nor any orthopaedic review of her shoulder. She remained in the care of her general practitioner, the second respondent Dr Percy, until on his referral she had an ultrasound on 3 February 2011, which revealed that she had suffered a significant rotator cuff tear, with tendon retraction such that surgical repair was no longer a realistic option. This ultrasound was reported as follows:

“Complete tear of the supra and infraspinatus tendons with tendon retraction by approximately 4cm. Fluid and debris within the subacromial/subdeltoid bursa. Medially subluxed long head of biceps tendon likely related to ligamentous injury at the rotator interval and also due to a partial thickness articular surface tear of the superior subscapularis tendon”.

82. Based on this, Dr Duckworth, an orthopaedic surgeon to whom Ms Makaroff was then referred by Dr Percy, reported on 24 February 2011, as follows:

“Unfortunately such a large tear would be very difficult to repair at this stage. I therefore believe Ms Makaroff is best treated conservatively and she will have to avoid overhead use of her arm”.

83. In the proceedings below, Ms Makaroff as plaintiff alleged that had her rotator cuff injury been diagnosed promptly she would have had it surgically repaired with a good outcome, and that the delay in diagnosis was attributable to breaches of duty by the Hospital (the first defendant) and by Dr Percy (the second defendant). At trial, Harrison AsJ found that both the Hospital and Dr Percy had acted in a manner that was widely accepted by peer professional opinion as competent professional practice, and accordingly that they did not incur liability in negligence. Her Honour further found that in any event, Ms Makaroff had failed to establish that but for any relevant breach of duty, she would not have had an ongoing shoulder injury. Accordingly, there was judgment for both defendants.

84. I have had the benefit of reading in draft the judgment to be delivered by Macfarlan JA. I agree with his Honour that error has not been demonstrated in the trial judge’s conclusion that Dr Percy was not negligent: I accept that the evidence established that he acted in a manner that was widely accepted by peer professional opinion as competent professional practice for a general practitioner,[1] bearing in mind that for that purpose, “peer professional opinion does not have to be universally accepted to be considered widely accepted”. [2] However, in respect of Ms Makaroff’s case against the Hospital, I have reached a different conclusion. For the reasons that appear below, in my judgment breach of duty on the part of the Hospital was established. It has therefore been necessary for me to consider the question of causation, in respect of which I have concluded that, but for the Hospital’s breach of duty, Ms Makaroff would more probably than not have had surgery which would have successfully remediated or ameliorated her shoulder injury.

    1. Civil Liability Act 2002 (NSW) (‘CLA’), s 5O(1).

    2. CLA, s 5O(4).

BREACH OF DUTY

85. The relevant ground of appeal (ground 1 in the Further Amended Notice of Appeal filed by leave at the hearing) was to the effect that her Honour failed to find that the Hospital negligently failed to warn or notify Ms Makaroff of the need for her to organise an orthopaedic review, including appropriate radiology, within 14 to 21 days of 20 September 2010 (being the day before her discharge from the Hospital).

86. It is first necessary to address the Hospital’s submission that this formulation of the case should not be entertained on appeal, as being outside the particulars relied on at trial.

87. In her Amended Statement of Claim, Ms Makaroff relevantly alleged that the duty of care owed to her by the Hospital included (emphasis added):[3]

    3. Primary judgment at [16].

1. ordering or issuing a referral for an ultrasound or MRl investigation into the state of her rotator cuff tendon, during the course of her admission to the Hospital between 19 September 2010 and 21 September 2010, or at least on 28 September 2010 when she last attended there;

2. undertaking, or arranging for, clinical tests for rotator cuff function in a timely manner;

3. advising her appropriately as to the likelihood of a rotator cuff injury and the appropriate follow-up treatment;

4. ensuring she was seen by an orthopaedic surgeon and informing her that relevant consultation was essential; and

5. providing advice as to the care that would need to be taken in relation to her shoulder and in particular, the doing of exercises.

88. Ms Makaroff pleaded that in breach of those duties, the Hospital (emphasis added):[4]

    4. Primary judgment at [18].

1. failed to order or issue a referral for an ultrasound or MRI investigation of the plaintiff’s shoulder, during the course of her admission to Nepean Hospital between 19 September 2010 and 21 September 2010, or at least on 28 September 2010 when she last attended there;

2. failed to advise her as to the likelihood of a rotator cuff injury and the appropriate follow-up treatment required;

3. failed to undertake appropriate clinical testing for rotator cuff function or arrange for it in a timely manner;

4. failed to ensure that she was referred to an orthopaedic surgeon;

5. failed to inform her that an ultrasound or MRI investigation of her shoulder and a consultation with an orthopaedic surgeon was essential;

6. failed to advise her appropriately as to the care she should take with her shoulder and inappropriately advised her to exercise her shoulder; and

7. failed to identify the rotator cuff tear and organise or arrange for it to be repaired in a timely manner.

89. However, in the course of the appeal, Ms Makaroff’s senior counsel confined the particulars relevant to the appeal to (emphasis added): [5]

1. failing “to advise the plaintiff as to the likelihood of a rotator cuff injury and the appropriate follow up treatment”; and

2. failing to take reasonable care to ensure that the plaintiff was seen by an orthopaedic surgeon and to inform her that consultation was essential (although counsel rightly conceded that it was beyond the duty of the Hospital to ensure that she had a consultation).

   5. Tcpt, 6 October 2020, p 25(27)-(39).

90. Although the particulars that contained an allegation concerning provision of information that a consultation with an orthopaedic surgeon was essential did not explicitly include a reference to time, let alone to a specific time period such as 14 to 21 days, it is clear that the question of time, or urgency, was a live one at the trial, and was inherent in Ms Makaroff’s case and understood to be so.

91. This is illustrated by, first, the post-expert conclave joint report, in which question 3.4 asked the experts “Whether a review by an orthopaedic surgeon was required at this time?”. The question referred to the time while Ms Makaroff was in the Hospital. All experts who participated in answering this question (Professor Sonnabend, orthopaedic surgeon; Professor Raftos, emergency physician; Dr Cummine, orthopaedic surgeon; Dr Fernando, emergency physician; Professor Murrell, orthopaedic surgeon) agreed that (emphasis added):

“A review by an orthopaedic surgeon was desirable, but arrangements for review in the near future would have been sufficient - according to all experts.”

92. In a separate response, Dr Duke, orthopaedic surgeon, also agreed.

93. Question 3.5 asked “Whether the plaintiff should have been advised that an MRl or ultrasound of the right shoulder was essential, as was review by an orthopaedic surgeon at this time?”. The joint answer was (emphasis added):

“There was a need for the plaintiff to be referred for an orthopaedic review. An orthopaedic review within a relatively short time would obviate the need for the LHD to order further investigations.

Given the referral to the LMO noting the need for an early orthopaedic follow up, there was no need for the hospital to order or refer the plaintiff for an MRl or ultrasound - according to all experts.

Dr Fernando says a relatively short time for the orthopaedic review would be one to two weeks.”

94. Dr Duke’s answer was:

“I agree with the first paragraph in the response and disagree with the second paragraph.

I maintain that this lady should have been investigated by the hospital with at least an ultrasound and an orthopaedic opinion provided by the hospital.”

95. During the trial, the experts gave concurrent evidence. Associate Professor Raftos said that he thought Ms Makaroff “needed to see an orthopaedic surgeon; and I think that that was within three weeks…”. Later, the following evidence was given (emphasis added):

“WITNESS SONNABEND: I think the important question is whether it was made clear to her that she had to follow it up. I – I can’t give you a yes or no answer to that, but if it was clear to her that she had to, then it was essential that she be followed up in short time, that would be appropriate and sufficient. If it was not, that would be inappropriate and insufficient.

FINNANE: So should she have been told it was urgent or important that she did something[?]

WITNESS SONNABEND: I believe so, yes.

FINNANE: Does anybody disagree with that?

WITNESS CUMMINE: It depends again, the word urgent, within two to three weeks.”

96. Dr Duke gave this evidence (emphasis added):

“I think the important thing here is that it’s no point in telling someone you need to go and see an orthopaedic surgeon. You need to say to them, “You need to see an orthopaedic surgeon, because you may have a very big tear in the tendons of your shoulder, and if you don’t get them fixed soon, you may finish up with a chronically painful, useless arm. It is vital that you see an orthopaedic surgeon for those reasons.”

97. Professor Sonnabend agreed with Dr Duke (emphasis added):

“HER HONOUR: Would you agree with, Professor Sonnabend? Would you spell it out for the patient?

WITNESS SONNABEND: I don’t know if I’d use the word vital, but I’d say it was essential, it was very necessary, it was most important, and make sure that the patient understood that it was important.

HER HONOUR: Would you into the, like what Dr Duke said, you could have tendons torn in your shoulder, or something like that. Would you have gone further to explain to her that – what I would call time is of the essence?

WITNESS SONNABEND: Without being offensive to patients, I think it varies from patient to patient, and some – you know, if you had a professor of anatomy, you’d explain to him in some terms. If you had someone from the local school for the disabled and blind, you’d explain to them differently, so. But you would make it clear that it was very important that it be followed up.

HER HONOUR: A timely follow-up. I think you said two to three weeks.

WITNESS SONNABEND: Two to three weeks.”

98. Thus Professor Raftos, Professor Sonnabend, Dr Cummine, and Dr Duke all said that Ms Makaroff should have been told that it was essential that she see an orthopaedic surgeon for review urgently, by which they intended within two to three weeks. They emphasised the need for the essentiality of the consultation to be brought home to her. While the evidence did not explicitly say that the period of two to three weeks had to be identified to Ms Makaroff, it gives necessary meaning and content to the requirement of timeliness or urgency, and it is implicit that the experts’ view was that Ms Makaroff had to be told that it was essential that she see an orthopaedic surgeon for review urgently, that is to say within the next two to three weeks.

98. The issue of timeliness was addressed in the appellant’s written submissions to the trial judge, which included the following express reference to urgency (emphasis added):

“In my submission, it hardly matters whether the Plaintiff was given a referral letter to Dr New or was given a card. Clearly, she rang Dr New, clearly, he was a spinal surgeon. In my submission Nepean Hospital failed in its duty of care to the Plaintiff by referring her to an inappropriate surgeon who would not take public patients and failed to make plain to her the urgency of her need to see an orthopaedic surgeon. This should have been obvious to the First Defendant having regard to the x‐ray report to which I have referred above.”

100. That it was an issue was apparent to the trial judge. In her Honour’s judgment, the trial judge characterised Ms Makaroff’s case as follows (emphasis added):

“Was Nepean Hospital negligent?

[114] The plaintiff asserts that Nepean Hospital failed in its duty of care by referring her to an inappropriate surgeon who would not take public patients, and failed to make plain to her the urgency with which she needed to see an orthopaedic surgeon. According to the plaintiff, the urgency should have been obvious to the first defendant in light of the x-ray report that stated there was a moderate reduction in the right humero-acromial distance, which suggested rotator cuff insufficiency.”

101. The Hospital was not under any misapprehension as to whether it was an issue that Ms Makaroff should have been advised of the urgency of an orthopaedic consultation: its counsel’s written submissions in this Court referred to the above passage in characterising the appellant’s case at trial as including that it was the hospital’s duty to make plain to the appellant that there was an urgent need to see an orthopaedic surgeon, and its counsel acknowledged that “it was put in the alternative as either urgent or essential, but yes, I accept that, your Honour”.

102. I do not read the ground of appeal, framed as it is, as seeking to raise a new particular of negligence, but simply as specifying the finding which the appellant contends ought to have been made on the evidence, within the scope of the existing particulars. The relevant time frame was plainly explored at the trial, and I would not preclude the appellant from agitating it on appeal.

103. In addition to the expert evidence referred to above, the relevance of the time factor and the essentiality of the orthopaedic consultation was also illuminated by the basis on which various other of the particulars of negligence, not pressed on appeal, were disposed of. Thus, in rejecting the particular which alleged failure to order or refer for an ultrasound or MRI investigation of the right shoulder during the 19 to 21 September 2010 inpatient admission, her Honour said (emphasis added):

“[164] For the reasons outlined earlier, mainly with respect to Professor Sonnabend, I accept and prefer the evidence Professors Sonnabend and Murrell, and Drs Cummine and Fernando. I am satisfied on the balance of probabilities that it was accepted peer professional opinion as competent professional practice for the imaging of the plaintiff’s right shoulder to have been deferred for two to three weeks, and that it was not necessary to carry it out while the plaintiff was an inpatient. Even if I am wrong on this topic and the evidence of Drs Raftos and Duke is to be preferred, there was in place a plan of sorts involving a follow up within a week at the plastics clinic, followed by referral for orthopaedic review.”

104. In respect of the particular which alleged failure to order or refer for an ultrasound or MRI of the plaintiff’s right shoulder on 28 September 2010, her Honour said (emphasis added):

“[166] Nepean Hospital submitted that the analysis set out above in respect of the inpatient admission applies equally to the plaintiff’s 28 September 2010 attendance at the plastics clinic. This appointment fell one week after she was an inpatient at the hospital. The evidence again established a widely-accepted practice by peer professional opinion of not ordering, performing or referring for imaging at that time in the plaintiff’s treatment plan. Professor Sonnabend’s evidence was somewhat inconsistent as to the “ideal” time for imaging. Ultimately, the Nepean Hospital argued that it does not matter when the “ideal” time was. Professor Sonnabend and the other experts agreed that deferring imaging until about three weeks after the injury was reasonable and appropriate. He acknowledged that, depending on the degree of significant pain or weakness experienced by a patient, deferring the decision to order imaging for approximately three weeks after an injury such as this was more than adequate (Ex D1/9 and T563.30).

[167] For these reasons, I find that it was accepted peer professional opinion as competent professional practice not to perform the imaging on 28 September 2010, as that falls in the two to three week period where the imaging could safely be deferred. This allegation breach of duty of care fails.”

105. In rejecting the particular which alleged failure to undertake appropriate clinical testing for rotator cuff function or arrange it in a timely manner, her Honour said (emphasis added):

“[182] However, all experts, except for Professor Murrell and Dr Duke, accepted that it was reasonable to defer examination for approximately three weeks, provided that there was a plan in place for orthopaedic review within that timeframe: see Professor Sonnabend’s report dated 22 August 2012 at [10]; (T 558.41; T 563.47); the evidence of Drs Fernando and Cummine (T 560.36); the evidence of Dr Raftos (T 562.37); the evidence of Dr Duke (T 562.40); and the evidence of Dr Murrell (Ex D2/3, Tab 15, [1.3]).

[183] When giving evidence, Professor Sonnabend explained that there was good reason not to do a full examination during the inpatient admission, and explained that the ideal time for examination would have been after around two weeks. He explained that before that time, pain might limit movement, making immediate physical examination unreliable.

[184] Dr Fernando gave evidence that performing an examination while the plaintiff had a fresh, debrided bite wound, and had been placed in a plaster u-slab and a shoulder immobiliser, would be very difficult (T 561.1-8).

[185] I prefer and accept the views of Professor Sonnabend, Associate Professor Raftos and Drs Fernando and Cummine that no examination was required, indicated or possible because of post-operative swelling and immobilization, and a later proper assessment was indicated. This evidence demonstrates that not performing an examination during the inpatient admission or at the plastics”

106. In respect of the particular which alleged failure to ensure the plaintiff was referred to an orthopaedic surgeon, her Honour said (emphasis added):

“[186] In their evidence, Associate Professor Raftos and Dr Duke stated that it was appropriate to order imaging within three weeks, so long as the treating professionals had a plan. Nepean Hospital submitted that there was a plan involving referral to an orthopaedist. The plaintiff argued that the evidence is that there was no plan. Dr Rannard considered referring the plaintiff to Hawkesbury Hospital, and the plastics clinic inappropriately referred the plaintiff to a spinal surgeon. The plaintiff argued that this plan could not be regarded as competent professional practice widely accepted by peer professional opinion.

[187] The plaintiff further submitted that the opinions of Professor Sonnabend, Associate Professor Raftos, Dr Cummine and Professor Murrell were all to the effect that it was essential that the plaintiff be advised to have a review by an orthopaedic surgeon.

…

[190] All experts agree that it was reasonable in the plaintiff’s circumstances for her review by an orthopaedic surgeon to be organised at the plastic’s clinic on 28 September 2010, as it was.

[191] Professor Sonnabend stated that while it may have been “ideal” to have a plan in place for follow up with an orthopaedic surgeon one or two days after surgery, realistically, what was required was the formulation of a plan for orthopaedic follow up at weeks two to three (T 615.27). In this case, the plan for orthopaedic follow up occurred on day nine, when Dr Lee gave her a letter to her general practitioner to organise referral to an orthopaedic surgeon. Professor Sonnabend gave evidence that referring the plaintiff as Dr Lee did by giving her a card for Dr New, who had probably been on call, happens in every hospital (T 618.19).

[192] Dr Raftos and Duke’s evidence varied slightly from that of Professor Sonnabend in that Dr Raftos agreed that the plaintiff would need to see an orthopaedic surgeon within three weeks of injury (T 566.41). Dr Duke said that the essential element of the plan was for the plaintiff to be reviewed by an orthopaedic surgeon within two to three weeks in order to ascertain the condition of her rotator cuff (T 562.42).

[193] All participating experts agreed that as at 28 September 2010, it was sufficient for arrangements to be made for orthopaedic review in the near future (Ex D2/3, Tab 15, [3.4]-[3.5]). There was a plan of sorts. On 28 September 2010, in the reception of the outpatients plastics clinic, Dr Lee told the plaintiff, “With your shoulder you need follow up. Please see your general practitioner to get a referral to an orthopaedic surgeon”. He also suggested that she may ask to be referred to Dr New, and gave her a letter addressed “To Whom it May Concern” which he advised her to give to her general practitioner. Dr Lee wrote “Need ortho to follow up re shoulder.” The plaintiff must have understood from Dr Lee the need to see an orthopaedic surgeon, because she contacted Dr New’s rooms, where she was advised to get a referral from her general practitioner. Hence, it is my view that the referral directly to an orthopaedic surgeon, or indirectly to one through her general practitioner, was widely accepted by peer professional opinion as competent professional practice. This allegation of breach of duty of care fails.”

107. As to the particular which alleged failure to identify the rotator cuff tear and organise/arrange the repair in a timely manner, her Honour said (emphasis added):

“[207] On expert evidence, it is my view that during the period in which the plaintiff remained in hospital care, although a rotator cuff tear could have been diagnosed during the plastics clinic attendance on 28 September 2010, it was widely accepted by peer professional opinion as competent professional practice not to diagnose it. In relation to an earlier particular of negligence, I expressed the view that it was also widely accepted by peer professional opinion as competent professional practice to refer the plaintiff to an orthopaedic surgeon for consultation up to three weeks after the injury, at which time the rotator cuff diagnosis could have been made. These allegations of breach of duty of care fail.”

108. It will be apparent that all these particulars failed essentially on the basis that immediate action by the Hospital to order investigations or review of the Ms Makaroff’s shoulder injury was not required nor even appropriate, and such action could prudently be deferred for up to about three weeks, on the basis that she would have an orthopaedic follow up consultation within that period.

109. The evidence summarised above established that proper professional practice required that the appellant be advised that it was essential that she have a specialist orthopaedic consultation, within two to three weeks. Reasons for this included that she might well have a significant rotator cuff tear which could deteriorate and become irremediable if not investigated and treated expeditiously; and that a patient might well defer seeking a consultation for a follow up if not aware of its vital importance, particularly if, as occurred here, her condition appeared to be improving: in the joint expert report, Dr Cummine and Dr Fernando observed that the severity and extent of any injury to Ms Makaroff’s rotator cuff was unknown, and that her shoulder function appeared to improve in the following weeks.

110. As to what Ms Makaroff was in fact advised in this respect, the trial judge accepted the evidence of Dr Rannard, who was the Plastics Surgery Registrar at the Hospital, and Dr Lee, who was then an intern in Plastic Surgery. Neither of them professed to have actual recollection, and save to the extent of their notes in the hospital records, their evidence of what they told Ms Makaroff was evidence of what according to their usual practice they would have said.

111. Dr Rannard, who was not required for cross-examination, stated that when she attended on Ms Makaroff on 20 September 2010, she recorded the following plan, which appears in the hospital notes:

“- Ortho opinion. How long in collar and cuff.

- Check has FU [follow-up] at Hawkesbury re dislocated shoulder.”

112. She stated that she would have asked Ms Makaroff, “Have you got an appointment to go back and see an orthopaedic surgeon about your shoulder?”, and that if the answer was that (as was the case) she did not have an appointment, she would have said, “You will need to see someone about your shoulder, we’ll check about the follow‑up with Hawkesbury Hospital”. [6]

     6. This has been the subject of a minor mistranscription in Her Honour’s judgment, as “You’ll need to see someone about your shoulder, we’ll check about the follow‑up reports”.

113. Dr Lee saw the appellant, in the company of Dr Turner and Dr Rannard, at 8 o’clock the following morning, and wrote the discharge summary, in which the section for follow-up contains only a reference to “plastics”, and none to orthopaedic follow-up. He next saw Ms Makaroff on 28 September 2010, when, in conformity with the recommendation for plastics follow-up, she attended the Plastics Outpatient Clinic. He made a note in the Hospital’s records which included “Orthopaedic f/up”, and he said that he provided Ms Makaroff with a “written referral to follow up with her general practitioner … so that orthopaedic review in relation to her shoulder could be arranged”, on which he wrote “need ortho follow up RE shoulder”. Dr Lee said that, according to his usual practice, he would have said to Ms Makaroff:

“With your shoulder, that’s not within our area in plastic surgery. You need to see an orthopaedic surgeon for follow up. To do so, you need to go and see your general practitioner and get a referral”.

114. Ms Makaroff said that when she left the Plastics Clinic on 28 September 2010, she “was handed a referral to Dr New, an orthopaedic specialist. There was no message with this referral, just a routine follow-up”. She continued:

“[51] When I got home with the referral, I telephoned Dr New’s rooms, either that day or the next, to make my appointment. A lady answered: ‘Dr New’s Phone.’ I said: ‘I have a referral from Nepean Hospital.’ I’m not sure if she had given me a date and time at this stage, but she said: ‘It will be $200.00.’ I said: ‘Oh, I don’t have that at the moment.’ She then asked me: ‘What’s your problem?’ I said: ‘I had a dislocated shoulder.’ She said: ‘Oh, only a dislocated shoulder, Dr New is a spinal specialist. Just go back to your GP for follow-up, then you can be bulk billed.’ I said: ‘Okay, thanks.’

[52] I telephoned Dr Paul Percy’s rooms for my appointment which was made for the 14 October 2010. I’m not sure whether that was the first available time, or if I gave myself a bit more time so I could drive myself.”

115. In cross-examination, when asked what she was handed by Dr Lee, she said, “A piece of paper or an envelope, I can’t remember if it was in an envelope, or just a piece of paper, but it was a referral. So I went home and rang up”. Later, she was asked:

“Q. But is it the case you say that on the 28^th, more or less out of the blue at the end of the consultation, you were given this letter--

A. Mm.

Q. –and told you needed to see someone for follow-up with your shoulder?

A. Yes, otherwise the hospital should – would have given me a referral if they were suggesting I see one. Why didn’t the lady who told me give me the referral?

Q. Well that must have come as a shock to you.

A. No, I just thought it was part of the instructions, like being given a script or anything, this is what you’re to do next, and I do it.

Q. So you know that’s what you needed to do. You needed to see someone. That is, someone--

A. Well, I was told – I was given a referral—"

116. She explained that she was not told that there could be a major issue; she took it to be a referral for a routine follow-up.

117. Dr Lee said that, in light of Ms Makaroff’s evidence that she was given a referral to Dr New, it was “entirely possible” that he gave Ms Makaroff a business card for Dr New, whom he knew to be an orthopaedic specialist, and that if he did this, he would have said:

“With your shoulder, I’ve indicated you need to see an orthopaedic surgeon. Here is a card for one of the doctors who works here. You can ask your GP to refer you to see him”.

118. Dr Percy gave evidence, which the trial judge accepted, [7] that Ms Makaroff told him, when on 14 October 2010 she consulted him for the first time following her discharge from the Hospital, that she had been given a referral to Dr New. He recorded in his notes of that consultation:

“Diana said she was advised to see orthopaedic specialist for further follow up of her relocated shoulder on hospital discharge.

She was reviewed in plastic clinic on 28.09.10 and was told by Dr Lee that the skin graft to the right forearm was taking well and the right leg donor site was healing well. She was advised:

1. To continue 2^nd daily dressing … to right forearm …

2. To maintain dressing on right leg …

3. To see orthopaedic specialist with regard to ® shoulder.”

7. Primary judgment at [257]-[258].

119. After recording the results of Dr Percy’s examination of his patient, his note continued:

“States that would prefer not to attend orthopaedic specialist as feels she may be unable to afford it at present and wonders whether I would look after it. However., advised that I am not an orthopaedic specialist and that her shoulder injury and the way in which it occurred would be better assessed and cared for by a specialist.

Rx

Gentle shoulder exercise

Temazepam 10mg

Mobic 15mg daily

To improve shoulder inflammation. Still advised to proceed with orthopaedic specialist referral suggested by hospital. Continue plastic clinic’s advice.”

120. In his statement, Dr Percy said he had a conversation with Ms Makaroff which included the following:

“Me: The letter from the Plastics Clinic also says you have been referred to an orthopaedic surgeon. Have you seen the specialist yet?

Plaintiff: No. I was told by the Hospital on discharge and later at the Plastics Clinic to see an orthopaedic surgeon about my shoulder. I have been given a referral to see Dr Charles New, but when I called to make an appointment his secretary told me he was a spinal specialist and not a shoulder specialist. She also said it would cost $200 for the consultation and I may not be able to afford it at the moment. Can you treat my shoulder instead?

Me: I am not an orthopaedic surgeon. Shoulder dislocation can be a serious injury and your shoulder was injured in quite a violent way so you really need to be seen by an orthopaedic specialist. A specialist can examine your shoulder and advise and arrange any investigations or treatment that might be required. Dr New is a very good doctor and more than qualified to give you good advice about how to manage your shoulder injury. I am not a specialist but Dr New is, he is the best person to see. You should call him again and arrange to see him. Also, you should get money back from Medicare for the consultation, ask him about that.

Plaintiff: I understand.”

121. The trial judge substantially accepted Dr Percy’s version, concluding in respect of Ms Makaroff’s consultation with him on 14 October 2010:

(i)   “caused and causation” (ss 5D and 5E);

(ii)   “resulting from” or “as a result of” (ss 5I(i), 5(j)(1), 5M(7l), 5L, 5N(1), (3) and (6); and

(iii) “arising from” or “arising in connection with” (in ss 5O and 5P).

231. With respect to ss 5O and 5P, his Honour said:

“[47] The language of ‘arising from’ or ‘arising in connection with’ is used in s 5O(1) and s 5P. The language in those provisions is connecting something quite different from that connected by ‘caused by’ and ‘resulting from’. Whereas the latter address the causal connection between two factual matters (the failure to exercise reasonable care and skill and the harm), ‘arising from’ and ‘arising in connection with’ are used to link a liability with some conduct by the defendant. The connection between a legal concept (liability) and conduct by a defendant, is quite different from the connection between a factual concept (harm) and conduct by the defendant; hence the different language.” (italics in original)

His Honour thus interprets “arising in connection with” in s 5P as denoting a causal connection between liability and giving, or failing to give, a warning, advice or other information.

232. The difficulty (for the purposes of this ground of appeal) of interpretation of s 5P (as I see it) does not lie in questions of causation, but in what is encompassed by the words “in respect of the risk of death or injury … associated with the provision … of a professional service”. “Associated with” is not the language of causation; the concept is wider. The effect of s 5P, as I see it, is to override the primacy of peer professional opinion in the determination of liability where the professional service the subject of the claim is a warning, advice or other information in respect of the risk of death or injury associated with that professional service. There is good reason for that, as will be seen below.

233. On appeal, the first respondent argued that s5P was not applicable in the circumstances of this case. The submissions made on behalf of the appellant as to ground 3 were limited to an assertion that, by reason of s 5P, her claims were to be dealt with, not with regard to s 5O, but under the general law. The first respondent argued that s 5P is, in the circumstances, inapplicable, because the appellant’s case at trial did not include any assertions of failure to give a warning, advice or other information in respect of the risk of death or injury associated with the provision of the professional service in question. No elaboration of this contention was made. Since it is abundantly plain that the appellant relied on a failure to give a warning, advice or information about the need for orthopaedic review (or an adequate warning), it may be that what was intended was to assert that the advice, warning or information were not in respect of the risk of death or injury associated with the professional services being provided. In submissions in reply, the appellant retreated somewhat from her reliance on s 5P, saying that the evidence established that the majority of the orthopaedic experts agreed that the scope of the first respondent’s duty extended to advice as to when and why orthopaedic review was required; in other words, that, even if s 5O were applicable, the defence ought to have failed.

234. Important though the application of s 5P is, I find it difficult to see how this question can be resolved in the present case. Application of s 5P depends on at least one finding of fact – that there is a risk of death or injury associated with the professional service in question. The professional service in question may be taken to be the provision of advice with respect to the appellant’s shoulder injury. It is difficult to see how advice and referral for specialist investigation and treatment can be associated with a risk of death or injury. Failure to provide such advice, warning or information, however, may well be associated with a risk of death or injury. But the appellant was already injured; the Court was referred to no evidence that suggested that further injury (as distinct from progression of the injury already suffered) might be suffered in the absence of orthopaedic intervention. The risk that an existing injury, untreated, might become inoperable and thus cemented may or may not be “a risk of … injury … associated with the provision of a professional service”. The evidence simply does not permit a determination of this question. Nor was any argument directed to that question.

235. I lean to the view that s 5P, on a literal interpretation, does not, quite, cover the present set of circumstances. The evidence did not disclose that the warning, advice or information the appellant contended ought to have been given was in respect of a risk of death or injury associated with the provision of the professional service in question (although it was in respect of a risk of entrenchment of the consequences of the shoulder injury).

236. These reflections should not be taken as conclusions as to the applicability (or otherwise) of s 5P (and therefore of s 5O) of the Civil Liability Act. The manner in which the case was conducted at first instance, and on appeal, simply does not allow for any proper consideration of those questions. It will be necessary to deal with the other questions, as has been done in the other judgments, on the basis of the findings of fact made by the primary judge.

237. There is a further basis on which the applicability of s 5O maybe doubted. Section 5O provides a defence to “a person practising a profession”. While Doctors Rannard and Lee were undoubtedly persons practising a profession, neither was named as a defendant. The named defendant was the local health district, a body corporate constituted under the Health Services Act 1997 (NSW). While recognising the corporate personality of the first respondent, it is difficult to see that a local health authority is “a person practising a profession”, although it may be (and in this case admittedly was) vicariously liable for any negligence established against any of its employees. That would include Doctors Rannard and Lee. However, the particulars of negligence alleged did not extend clearly to asserting negligence on the part of either Dr Rannard or Dr Lee, both of whom, it may be accepted, performed their functions in treating the appellant’s horse-bite wound in the Plastics Clinic in a competent manner. Rather, the negligence pleaded involved an alleged failure by the first respondent itself to provide or make available to the appellant the appropriate radiological investigation and consequent advice.

238. That, in turn, raises a potential issue of the application of Pt 5 of the Civil Liability Act.

239. None of these questions was explored, either at first instance or on appeal. I am left with the uncomfortable impression that some significant issues have never been determined. However, it is necessary to dispose of the appeal on the bases the parties have elected to contest.

240. It remains the position that the essence of the appellant’s case lies in the asserted failure of the first respondent, through Nepean Hospital, to advise her adequately. In considering that asserted failure, guidance may be taken from the decision of the High Court in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. That was a case of failure to inform the plaintiff of a known risk of proposed surgery. The High Court drew a distinction between the role of medical practitioners in providing diagnosis and treatment, and in providing advice or information. The difference lies in the contribution that can be made by the patient. With respect to diagnosis and treatment, there is little the patient can contribute. With respect to advice and information, the decision to accept or to decline proposed treatment lies with the patient, who, therefore, requires (and is entitled to) all relevant information. Whether the patient has been given all relevant information to make a reasoned decision, the High Court said, does not depend on medical standards or practices.

241. Rogers v Whitaker was decided before the Civil Liability Act came into effect. It may be, as was suggested by Basten JA in Ambulance Service of NSW v Worley [2006] NSWCA 102, that ss 5O and 5P were intended to “maintain the dichotomy suggested in Rogers between a breach of a duty to give a warning or other information, and other forms of professional negligence” (at [39]).

242. The standard of care to be observed by a person with some special skill or competence was stated in Rogers v Whitaker to be that of the ordinary skilled person exercising and professing to have that special skill. In relation to disclosure of information, the Court accepted that a “complex of factors” are to be taken into account (citing F v R (1983) 33 SASR 189). These include (but are not limited to) the nature of the matter to be disclosed, the nature of the treatment proposed, and the temperament and health of the patient.

243. The considerations stated in Rogers v Whitaker are readily adaptable and applicable to the present issues. The appellant was in a position in which her financial circumstances were a significant concern (Dr Rannard’s notes record that the appellant “currently has difficult finances”, could not afford to pay for Meals on Wheels, and had nobody to look after her 22 horses); these concerns had to be balanced against what I have called above the potentially dire consequences of the appellant not having orthopaedic investigation (and, if so advised, surgery). The appellant was not given sufficient information to make that decision. It would have taken little for the first respondent to have gone beyond providing her with an orthopaedic surgeon’s card and to have brought home to her the potential urgency of her situation. In saying this, I have not overlooked that Dr Rannard was a plastics registrar, and Dr Lee was completing a plastic surgery rotation. Neither, it may be assumed, was an expert in orthopaedics. The appellant was not seen by anybody who had the appropriate expertise.

244. Throughout these proceedings, undue emphasis has been placed on what was, or was not, done by the doctors who saw the appellant in the Plastics Clinic at Nepean Hospital. That does not take account of the circumstances of the appellant’s presentation to that Hospital. On her transfer from Hawkesbury Hospital the appellant was suffering from two separate conditions. One was a horse-bite wound, for which she was (as noted above) treated adequately (by Drs Rannard and Lee, and perhaps others). The other condition was the dislocated shoulder in respect of which she was, at Nepean Hospital, given no assessment, examination or advice, despite it being recognised that the dislocation might also have involved a tear of the rotator cuff carrying significant implications of damage that would require timely treatment. The appellant’s dislocated shoulder was, effectively, ignored, with only passing attention from the doctors in the Plastics Clinic. It was, in the circumstances, insufficient merely to advise the appellant to consult an orthopaedic surgeon (and to give her the card of a surgeon in the wrong specialty who did not accept public patients), particularly as the evidence showed that there was no publicly funded service in the area where the appellant lived. If Nepean Hospital could not provide, on the public health system, the consultation the appellant needed, it ought to have drawn to her attention more forcefully, and with more detail as to the possible adverse consequences of her injury, the importance of investigation and assessment, even at her own cost.

245. The first respondent’s responsibilities are not confined to Nepean Hospital (although it is not responsible for Hawkesbury Hospital, against which no allegation of negligence is made). The appellant was entitled to appropriate treatment and advice from the first respondent. If that could not be provided by Nepean Hospital it ought to have been made available elsewhere in the first respondent’s network.

246. The breach of duty on the part of Nepean Hospital was in failing to provide the appellant with any advice or treatment, including radiological investigation, in respect of the shoulder injury. It may be accepted, on the evidence, that such investigations were ill-advised in the early stages while she was an inpatient; that did not prevent the first respondent offering MRI or ultrasound at the 28 September consultation, even if it were to take place at a later date. The breach of duty of the first respondent, I have concluded, began when the appellant was discharged from the Nepean Hospital without a referral for radiological investigation. What followed thereafter was a chain of events (or non-events) by reason of which the appellant did not receive appropriate treatment.

247. Even if s 5O is applicable, the evidence did not establish that the first respondent acted in accordance with widely accepted professional practice. Rather, the consensus was that the appellant ought to have been advised of the need for speedy orthopaedic attention. It was in that (hypothetical) circumstance that the experts accepted that ultrasound or MRI could be delayed – presumably on the assumption that a competent orthopaedic surgeon would have taken steps to order those investigations.

248. I therefore agree with Brereton JA that ground 1 of the appeal should be upheld on the basis that the first respondent failed in its duty to provide adequate advice to the appellant concerning the need for timely orthopaedic examination, investigation (including radiological investigation) and/or treatment.

249. Since I would not determine the liability issue by reference to s 5O, the issues raised by the Notice of Contention do not arise.

250. That makes it necessary to turn to the question of causation.

Causation

251. Section 5D of the Civil Liability Act provides as follows:

“5D   General principles

(1)    A determination that negligence caused particular harm comprises the following elements—

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)    In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)    If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)    For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

252. The first respondent conducted its case in respect of causation on three bases:

(i)   it questioned whether, even at the time of hearing, the damage to the appellant’s rotator cuff was irreparable (this is really a question of injury, not causation);

(ii)   it questioned whether, having regard to her history, the appellant would have heeded or acted on any advice given to her;

(iii)   it questioned whether, if the appellant had been given, and had acted on, advice to obtain orthopaedic review, surgery would have been available to her (as a public patient) within a time frame that would have allowed for a successful outcome.

253. As to the first, the primary judge rejected a contention made on behalf of the first respondent, through Professor Murrell (an orthopaedic surgeon qualified on behalf of Dr Percy), that the injury could still be repaired. No challenge is made to that finding. The primary judge accepted (in a parenthetical observation in her consideration of the third of the bases advanced on behalf of the first respondent, at [428]) that it would have been unlikely that the appellant would have elected to undergo any surgery recommended to her. The only reason her Honour gave was that the appellant had nobody available to care for her horses and cats. I do not regard this as a clear finding on the second of the bases advanced on behalf of the first respondent; even if it were intended to be, it lacks reasoning sufficiently definitive to be persuasive. In my opinion the finding that ought to have been made (and ought now be made) is that what course the appellant would have taken respecting surgery would have depended on the content of the advice that she was (hypothetically) given. At this point that is largely speculative, but in my opinion, had the appellant been advised with sufficient emphasis of the consequences of declining to undergo surgery, and, importantly, had surgery been made available to her, she would have elected to undergo surgery. That is borne out by her conduct, in February 2011, when, having received the report of the ultrasound, she promptly consulted Dr Duckworth.

254. There is, however, an anterior question. What has just been said (and the finding by the primary judge) is founded on the appellant having consulted an orthopaedic surgeon and been advised to have surgery. The evidence shows a marked hesitancy on her part about doing so (if she had to fund the cost herself), even in the face of Dr Percy’s advice, on 14 October, that shoulder dislocation can be a very serious injury, reinforced on 28 October when he told her that there could still be an underlying problem. Moreover, the appellant was casual about having an ultrasound, having lost the first referral Dr Percy gave her. It was only when confronted with the evidence of the ultrasound that the seriousness of her situation galvanised the appellant into action, by which time it was too late. The anterior question is what the appellant would have done if she had been, as I consider she ought to have been, referred for MRI or ultrasound by Nepean Hospital on or shortly after 28 September (recognising that the optimum time for that procedure was not until early October).

255. No evidence was identified to this Court that revealed what an ultrasound or MRI in, say, October 2010, would have revealed. There was no clear evidence as to the date on, or approximate time at, which the appellant’s shoulder condition became inoperable, but, by the time she saw Dr Duckworth on 24 February 2011, he considered that it was then too late for surgery to be effective.

256. Although, as I have said, the evidence disclosed a casual attitude on the part of the appellant to accepting the advice of Dr Percy, her conduct on receiving the results of the February 2011 ultrasound shows that, when confronted with concrete evidence of the seriousness of her situation, she acted appropriately. That suggests that, had she had that information in, say, October 2010, she would then have acted appropriately.

257. The primary judge accepted the third contention of the first respondent, on evidence that is disturbing. She accepted that public hospitals “shut down” their public elective surgery lists from about mid-December to early February; the appellant’s injury had occurred in late (19^th) September and there was evidence that, having regard to the nature and extent of her injuries, ultrasound or MRI investigations would properly be deferred until about 3 weeks thereafter (that is early October). Although there were different views expressed by the experts about whether surgery, if recommended, could or would have been undertaken before the Christmas shutdown, her Honour accepted, ultimately, that it was unlikely that the appellant would have come to surgery as a public patient before Christmas 2010. That was because she would have been classified as a “Clinical Priority 3” (“CP3”), in respect of which the goal (not always realised) is that surgery will be performed within 12 months. The experts were divided on whether the appellant’s case was such as to warrant her being elevated on the waiting list (at the expense of another patient waiting for surgery).

253. The first respondent’s case on causation, therefore, was (in part) that, even if the gravity of the appellant’s injury had been known in early October, and that that knowledge revealed that, unless she was treated promptly, surgery would have been ineffective, she would not have had that surgery within the narrow window of time available.

254. The question then is whether, on the probabilities, the appellant would have been able to have surgery prior to the end of February 2011. That exercise is largely hypothetical; it depends on hypotheses concerning:

(i)   the extent of the tear to the rotator cuff that would have been exposed had appropriate radiological investigation been undertaken;

(ii)   the opinion of a treating orthopaedic surgeon, based on those radiological investigations, as to the probable efficacy of surgery to repair the tear;

(iii)   the opinion of a treating orthopaedic surgeon, based again on those radiological investigations, as to the urgency of such surgery;

(iv)   the willingness of Nepean Hospital (or some other hospital) to classify the appellant as a patient with more urgent need than is denoted by CPC3;

(v)   the likelihood that the appellant would have undergone the surgery at a time before the end of February 2011.

260. I have concluded that, on the assumption that the appellant had, on or about 28 September 2010, been referred for MRI or ultrasound shortly after that date, the probabilities are as follows:

(i)   the radiology would have exposed a significant tear in the rotator cuff requiring prompt attention;

(ii)   the result of the radiology would have been communicated to Dr Percy as the appellant’s general practitioner;

(iii)   Dr Percy would then have impressed upon the appellant the urgency of an orthopaedic consultation, even if the appellant had to find the funds (or, as was suggested by Dr New’s receptionist, have located an orthopaedic surgeon willing to bulk bill);

(iv)   the urgency would have resulted in the appellant being given a higher classification than CPC3, and she would have undergone surgery before the injury became inoperable;

(v)   the surgery would have resulted in a better outcome.

261. On those conclusions the appellant has established, as against the first respondent, causation.

The second respondent – Dr Percy

262. The conclusions I have reached above in relation to the first respondent are founded, in the first instance, upon its failure to arrange for radiological examination of the appellant’s shoulder injury. That failure had the consequence that Dr Percy was advising the appellant in the dark as to the true extent of her injury. That, in turn, resulted in her failure to take proper care for her own safety. In those circumstances, Dr Percy could not have done more than he did, in urging her to consult an orthopaedic surgeon and to have an ultrasound. On 14 October 2010 he emphasised to her the importance of orthopaedic attention and the potential seriousness of her injury; on 28 October he repeated that there might still be an underlying problem, and that he still wanted her to see Dr New. In the absence of firm radiological evidence, that was a sufficient discharge of Dr Percy’s duty of care.

263. The appellant’s claim against Dr Percy was correctly rejected by the primary judge.

Contributory negligence and damages

264. The primary judge made a contingent finding of contributory negligence on the part of the appellant of 15%. That assessment has not been challenged. Her Honour also, on a contingent basis, assessed the damages she would, had the appellant been successful, have awarded in respect of the various heads under which the appellant claimed. On the calculations of the appellant (which have been contested in only one respect) the total is $471,207.30. The appellant’s calculation included an amount of $146,125, under s 15 of the Civil Liability Act (damages for gratuitous attendant care services) for care of the appellant’s horses, described by the primary judge as “horse-husbandry”. In fact, as was pointed out on behalf of the first respondent, the primary judge disallowed that claim, although she did quantify it (contingently) in the amount noted in the appellant’s calculations. That amount should therefore be deducted from the total of $471,207.30, yielding $325,082.30. After deduction of 15% for contributory negligence, the appellant would be entitled to judgment in the sum of $276,319.95.

Orders

265. I would dismiss the appeal against the order for judgment in favour of the second respondent, and order that the appellant pay the second respondent’s costs.

266. In respect of the first respondent, I would allow the appeal, set aside the judgment and enter judgment for the appellant for $276,319.95, and order that the first respondent pay the appellant’s costs.

267. I would grant liberty to the parties (to the extent, if any, that liberty is required) to make, within 14 days, any application as to the costs orders, and any other issues with respect to the calculation of damages, and interest.

268. The orders I propose are:

With respect to the second respondent (Dr Percy):

1. appeal against the order for judgment in favour of the second respondent (the second defendant below) dismissed;

2. appellant to pay the second respondent’s costs of the appeal;

With respect to the first respondent:

3. appeal allowed; order for judgment in favour of the first respondent (the first defendant below) set aside;

4. order that judgment be entered for the appellant against the first respondent in the sum of $276,319.95, with effect from 14 June 2019;

5. first respondent to pay the appellant’s costs at first instance and of the appeal;

6. liberty to any party to apply, within 14 days, with respect to costs, calculation of damages and interest.

7. Notice of Contention dismissed.

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Endnotes

Decision last updated: 28 May 2021