Makaroff v Nepean Blue Mountains Local Health District

[2019] NSWSC 715

Supreme Court

New South Wales

Medium Neutral Citation:	Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715
Hearing dates:	3-7; 10-13 September 2018
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) Judgment for the defendants. (2) The plaintiff is to pay the defendants’ costs.
Catchwords:	TORT - Negligence – Medical negligence – Liability – Where the plaintiff’s arm was dislocated by a horse bite – Whether the defendants failed to order imaging to identify a rotator cuff injury – Whether the defendants failed to refer the plaintiff to an orthopaedic specialist – Whether the defendants failed to advise the plaintiff as to proper care for her shoulder – Contributory negligence – Whether the plaintiff exacerbated her injury by performing farm work against medical advice   Damages – Personal injury – Assessment of quantum – Economic loss – Costs of past and future care – Costs of caring for animals – Whether the defendants are liable for the cost of maintaining the plaintiff’s unprofitable business
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5G, 5L, 5O, 5E, 5R, 5S, 13, 15, 16 Limitation Act 1969 (NSW), ss 50C, 50D
Cases Cited:	Adeels Place Pty Ltd v Moubarak [2009] HCA 48 Allied Pastroal Holdings Pty Limited v Commissioner of Taxation 1983 1 NSWLR 1 Armagas Ltd v Mundogas SA (the “Ocean Frost”) [1986] 2 All ER 385; 1 Lloyd’s Rep 1 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Barker-Morrison v State of New South Wales [2009] 74 NSWLR 454 Browne v Dunn Coles Supermarket Australia Pty Ltd v Haleluka [2012] NSWCA 343 Commonwealth of Australia v Shaw [2006] NSWCA 209 Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 CSR Ltd v Eddy (2005) 80 ALJR 59 Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 Fox v Percy (2003) 214 CLR 118 Geaghan v D’Aubert [2002] NSWCA 260 Gillett v State of New South Wales [2012] NSWCA 83 Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Joslyn v Berryman (2003) 214 CLR 552 Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1 Mason v Demasi [2012] NSWCA 210 Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Medlin v State Government Insurance Commission (1995) 182 CLR 1 New South Wales v Doherty [2011] NSWCA 225 Nominal Defendant v Cordin [2017] NSWCA 6 Pamment v Pawelski (1949) ALR 860; (1949) 79 CLR 406 Podrebersek v Australian Iron & Steel [1985] HCA 34 Reece v Reece (1994) 19 MVR 103 Schofield v Hopman [2017] QSE 297 Sharman v Evans (1977) 13 ALR 57 Sharman v Evans (1977) 13 ALR 57; (1977) 138 CLR 563 South Western Sydney Local Health District v Gould [2018] NSWCA 69 Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 Sutherland Shire Council v Major [2015] NSWCA 243 Van Dyke v Sidhu [2013] NSWCA 198 Wallace v Kam [2013] HCA 19 Wang v State of New South Wales [2010] NSWCA 209 Watson v Foxman (1995) 49 NSWLR 315 Woods v Collins [2018] SADC 62 Woolworths Ltd v Strong [2010] NSWCA 282
Category:	Principal judgment
Parties:	Diana Lynn Makaroff (Plaintiff) Nepean Blue Mountains Local Health District (First Defendant) Dr Paul Percy (Second Defendant)
Representation:	Counsel: M Finnane QC with C Stewart (Plaintiff) J Downing with J Harris (First Defendant) M Hutchings (Second Defendant)   Solicitors: HWL Ebsworth Lawyers (Plaintiff) Cameron Leaver, Hicksons Lawyers (First Defendant) Donald Munro, TressCox Lawyers (Second Defendant)
File Number(s):	2013/168790
Publication restriction:	Nil

Judgment

Witnesses

Background

The pleading framework

The amended defence

Factual disputes

The accident

Findings on credibility

(1) The plaintiff

The plaintiff’s submissions

Nepean Hospital’s submissions

The second defendant’s submissions

Conclusion

(2) Nepean Hospital staff

(3) Dr Percy

Dr Percy’s submissions

The plaintiff’s submissions

Conclusion

Events after the accident

Hawkesbury Hospital

Nepean Hospital

Drs Rannard and Lee

Mr Fogarty

Discharge from hospital – 21 September 2010

Follow up at plastics clinic – 28 September 2010

The referral

Phone call to Dr New’s rooms

Was Nepean Hospital negligent?

Section 5O of the Civil Liability Act 2002 (NSW)

The first defendant’s defences in relation to s 5O of the Civil Liability Act

Liability of the first defendant

Orthopaedic and shoulder experts joint report dated 30 August 2018

(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

Evidence

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

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

The plaintiff’s submissions

Nepean Hospital’s submissions

Evidence

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

The plaintiff’s submissions

Evidence

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

The plaintiff’s submissions

Nepean Hospital’s submissions

Evidence

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

The plaintiff’s submissions

Nepean Hospital’s submissions

Evidence

(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

Nepean Hospital’s submissions

Conclusion

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

Nepean Hospital’s submissions

Evidence

The plaintiff’s financial position and attitude to following medical advice

Liability of the second defendant

Record keeping

The plaintiff’s telephone call to Dr Percy’s rooms

14 October 2010 – first appointment (25 days post injury)

The plaintiff’s version

Dr Percy’s version

The general practitioners’ joint report regarding the 14 October 2010 consultation

The general practitioners’ conclave assessment of the 14 October 2010 consultation

28 October 2010 – second appointment (39 days post injury)

The plaintiff’s version

Dr Percy’s version

The general practitioners’ joint report regarding the 28 October 2010 consultation

The general practitioners’ conclave assessment of the 28 October 2010 consultation

11 November 2010 – third appointment (53 days post injury)

The plaintiff’s version

Dr Percy’s version

Further injury to the plaintiff’s right shoulder

The mechanism of injury

The general practitioners’ joint report regarding the 11 November 2010 consultation

The general practitioners’ conclave assessment of the 11 November 2010 consultation

9 December 2010 – fourth appointment (81 days post injury)

The plaintiff’s version

Dr Percy’s version

Referral for an ultrasound

The general practitioners’ joint report regarding to the 9 December 2010 consultation

The general practitioners’ conclave assessment of the 9 December 2010 consultation

24 January 2011 – further ultrasound referral (127 days post injury)

The ultrasound – 3 February 2011 (137 days post injury)

Appointment with Dr Shenstone – 8 February 2011 (142 days post injury)

Dr Percy’s review of Dr Duckworth’s report – 1 March 2011

5 April 2011 – fifth and final appointment

The plaintiff’s version

Dr Percy’s version

The result

Causation

The plaintiff’s submissions

Dr Percy’s submissions

Nepean Hospital’s submissions

(1) Is it possible that the plaintiff’s right shoulder rotator cuff injury can still be successfully repaired?

Dr Percy’s submissions

Evidence

Professor Murrell

(2) When would the plaintiff’s right shoulder have been operated upon?

Evidence

Conclusion

Sections 5L and 5G of the Civil Liability Act – whether the risk was obvious and is a dangerous recreational activity

Contributory negligence

The defendants’ submissions

The plaintiff’s submissions

Conclusion

Is the plaintiff’s claim against Dr Percy statute barred?

The law

Evidence

The plaintiff’s submissions

Dr Percy’s submissions

Conclusion

Medical reports

Damages

General principles

Statistical information

Non-economic loss

The defendants’ submissions

The plaintiff’s submissions

Conclusion

Economic loss

Out of pocket expenses – past and future

Loss of earning capacity

The plaintiff’s submissions

The defendants’ submissions

Evidence - the plaintiff’s financial position prior to the accident

The loan on the Kurmond Road property

Conclusion

Attendant care services

Past attendant care services

Occupational therapists’ joint report dated 20 August 2018

Horse husbandry

The plaintiff’s submissions

The defendant submissions

Conclusion

Lifestyle and personal equipment

Roadside insurance

Occupational therapy

Medications

Future psychiatrist/psychologist

Psychiatrist’s joint report dated 20 August 2018

Conclusion

Result

Judgment

1. HER HONOUR: The plaintiff seeks damages for injuries sustained on 19 September 2010 to her right shoulder as a result of the alleged medical negligence of the first and second defendants.

2. The plaintiff is Diana Lynn Makaroff. The first defendant is Nepean Blue Mountains Local Health District (“Nepean Hospital”). The second defendant is Dr Paul Percy, the plaintiff’s former treating general practitioner.

Witnesses

3. Dr Percy, Dr Joe Don Joo Lee, Professor David Sonnabend, Professor John Raftos, Dr John Cummine, Dr Sanj Fernando, Dr John Korber and Professor George Murrell (orthopaedic specialists); Dr Diane Prattley and Susan Dinley (occupational therapists); Dr David Wai, Associate Professor Vincent Roche and Dr Ken Dobler (general practitioners); Associate Professor Carolyn Quadrio and Dr Rosalie Wilcox (psychiatrists); Associate Professor Tuly Rosenfeld and Brendan Fogarty (physiotherapists); and the plaintiff and her friend Sheila Jackson all gave evidence and were cross examined.

4. On 14 September 2018, counsel for all parties gave oral submissions. Leave was granted to the plaintiff to serve submissions in reply by 4.00 pm on Friday, 21 September 2018 and judgment was reserved. On 3 October 2018, the defendants were given leave to file further written submissions in reply. Nepean Hospital’s submissions, limited to five pages, were to address only “what the defendants had said”, and nothing else. Dr Percy’s submissions were also limited to five pages and were to cover the ambit of the evidence and criticism against him, s 5O of the Civil Liability Act 2005 (NSW) and the evidence of Professor Murrell.

5. Senior counsel for the plaintiff supplied further submissions dated 21 September 2018 with the approval of Nepean Hospital. The second defendant did not accept the ambit of those submissions. The second defendant submitted that the further submissions exceeded the terms of the leave sought and the bounds of the pleaded claim against him, and advanced arguments unsupported by the content of his evidence under cross examination. While I agree that practitioners should comply with directions regarding submissions and their contents, and that the plaintiff took liberties with the directions of the Court, I have decided that it is in the interest of justice in this case to accept their further submissions, as otherwise these proceedings would encounter difficulties in addressing gaps in important issues.

Background

6. The plaintiff relied on her statements dated 25 July, 20 August and 3 September 2018, and her affidavit filed 26 February 2010 in prior proceedings 2009/294905 (Perpetual Limited v Diana Lynn Makaroff) in the equity division of this Court (Ex G).

7. The plaintiff was born in 1951 and is 67 years of age. She currently resides in a horse float on a five-acre property in Vacy, New South Wales. She has 20 much-loved horses and 15 cats.

8. From the age of about four or five, the plaintiff developed an enduring passion for horses and began to attend a riding school at Warriewood every Saturday morning.

9. The plaintiff gave evidence that over the course of her life, she had formed a very close bond with her horses. They have required hard work but also brought great pleasure. Their welfare is very important to her, as is the welfare of every creature. She created them, and feels that she is responsible for them (T162.21.33).

10. In early 1962, at the age of 10, the plaintiff attended school in Moss Vale as a boarder. She left in 1967 without completing her school certificate. Throughout her time at school, she took riding and horsemanship lessons three days per week at Throsby Park School. She often stayed at Throsby Park during the school holidays, where she worked for her keep. She continued to work there after she left school.

11. The plaintiff subsequently worked as a model for television and print commercials, some of which involved horses. After a year or two, she became a house model for Sportscraft.

12. After she stopped modeling, she became a jillaroo at Warialda. There the plaintiff learned to use a stock whip and mustered cattle on horseback, usually from dawn until dusk. She obtained a heavy vehicle license so that she could drive wheat trucks at harvest time. She also worked on a big cattle station at Moree and another at Bundarra, where she trained polo ponies to get them used to the stick and ball. She developed an abiding interest in equestrian events.

13. In 1974, the plaintiff married her first husband. They divorced in 1983. In December 1987, she married her second husband. They separated at the end of 1995, but continued to live separately on their property, “Middleton Stud”. In April or May 1997, after coming to a financial settlement with her ex-husband, the plaintiff left Middleton Stud and purchased a 36½ acre property on Kurmond Road (“the Kurmond Road property”).

14. While the home she had designed on the Kurmond Road property was constructed, the plaintiff temporarily lived in a caravan on the land. She hired tradesmen to complete some of the work but did a lot of it herself, including core-filling concrete blocks using a shovel and wheel barrow, clearing away building rubble, installing floor joists and helping to secure nine-metre Colourbond roof sheets. The plaintiff named the stud “Makaroff Warmbloods”.

15. I will set out the plaintiff’s financial circumstances in greater detail later in this judgment when I consider economic loss. For present purposes, I note that the plaintiff no longer owns her home, and currently resides alone in a horse float which is located on a rural property owned by a friend. At the time of the Court hearing, the plaintiff had 20 horses and 15 cats.

The pleading framework

16. The plaintiff alleges that each of the first and second defendants owed her a duty of care and that such a duty extended to:

1. ordering or issuing a referral for an ultrasound or MRl investigation into the state of the plaintiff’s rotator cuff tendon; in the case of the first defendant, during the course of her admission to the Nepean hospital between 19 September 2010 and 21 September 2010, or at least on 28 September 2010 when she last attended there; and in the case of the second defendant, when she saw him at the four consultations he appointed for her between 14 October 2010 and 9 December 2010;

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

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

4. ensuring the plaintiff 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.

17. The plaintiff alleges that in the circumstances, the defendants each breached their duty of care to her. The particulars are that the defendants:

1. failed to order or issue a referral for an ultrasound or MRI investigation of the plaintiff’s shoulder; in the case of the first defendant, 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), and in the case of the second defendant, when she saw him at the four consultations he appointed for her between 14 October 2010 and 9 December 2010;

2. failed to advise the plaintiff 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 for arranging for it in a timely manner;

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

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

6. failed to advise the plaintiff appropriately as to the care she should take with her shoulder and inappropriately advising 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.

18. The plaintiff submitted that by reason of the defendants’ failure to conduct appropriate tests and provide adequate advice in relation to future treatment and care of the plaintiff’s injury, her treatment was delayed to the extent that she can no longer benefit from surgical repair. As a result, her shoulder is seriously and permanently disabled.

The amended defence

19. In its amended defence filed 30 August 2018, the first defendant denies that any of its conduct caused harm to the plaintiff, does not admit the loss, injury and damage alleged, and further pleads:

“27. In answer to the whole of the first amended statement of claim, the first defendant says that it acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice such that, pursuant to s 5O of the Civil Liability Act 2002 (NSW), it is not liable for those injuries, loss and damage claimed.

28. In answer to the whole of the statement of claim, the first defendant says that it 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, and as a consequence the first defendant does not, in the circumstances, incur a liability in negligence pursuant to s 5O of the Civil Liability Act.

PARTICULARS OF COMPETENT PRACTICE

(i) With primary dislocation, conventional treatment is for the arm to be initially immobilised in a sling and then gradually mobilised for a period commencing between one and three weeks;

(ii) At Nepean Hospital during the 19-21 September 2010 admission, the intervention involved appropriate triage, management of nausea and pain with anti-emetics and analgesics, as well as hemodynamic monitoring, initiation of repeat imaging, facilitation of plastic surgical review and the performance of washout and debridement of horse bite wound, with skin graft;

(iii) After the closed reduction of the dislocation was achieved on 19 September 2010, surgical intervention was contraindicated until the area of soft tissue loss caused by the horse bite had been treated and it was clear that no unusual infection, including tetanus among others, had occurred;

(iv) Prior to the washout and debridement procedure on 20 September 2010, it was reasonable to organise for a physiotherapist to fit the plaintiff with a shoulder immobiliser and to inform and instruct her as to simple, supported right arm movements she could do in order to prevent her shoulder muscles tightening up;

(v) An accurate assessment of the plaintiff’s rotator cuff function could not be made during the 19-21 September 2010 admission to Nepean Hospital due to the pain, swelling and limitation of movement;

(vi) It was reasonable not to perform a right shoulder MRI or ultrasound scan during the 19 - 21 September 2010 admission given the plaintiff’s age and the nature and severity of her pain, swelling and bruising;

(vii) It was reasonable to organise review of the plaintiff in the plastics clinic for 28 September 2010, nine days after the injury, by which time her injury-related swelling and bruising would likely have subsided and an accurate assessment of her shoulder mobility could be made;

(viii) It was reasonable to review the plaintiff in the plastics clinic on 28 September 2010, to recommend at that time that the plaintiff attend an orthopaedic surgeon in respect of her shoulder via referral from her GP, to give the plaintiff a card with details of an orthopaedic surgeon she could be referred to and to write a letter to the plaintiff’s GP advising that she needed orthopaedic follow up in relation to her right shoulder.

29. Further, if s 5O of the Civil Liability Act requires that the first defendant establish that it acted pursuant to a practice that was in existence at the relevant time, which the first defendant denies, then it says that the manner in which it acted, including in doing the things referred to in para 28 above, accorded with, or was pursuant to, a practice in existence at that time.”

20. The second defendant in his defence filed 1 March 2016 admits that he saw the plaintiff at the five consultations to which she refers, but disputes the plaintiff’s version of what occurred at those consultations. He similarly denies liability and relies upon s 5O of the Civil Liability Act.

21. The second defendant pleads at [13]-[16] and [18]:

“13. As to the whole of the first amended statement of claim, the second defendant relies on s 5O of the Civil Liability Act and says that he acted in a manner that in 2010 and 2011 was widely accepted in Australia by peer professional opinion as competent professional practice.

14. In answer to the whole of the first amended statement of claim, the second defendant relies on s 5L of the Civil Liability Act and says the second defendant is not liable in negligence for the harm allegedly suffered by the plaintiff as the harm was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

15. As to the whole of the first amended statement of claim, the second defendant alleges that, in accordance with s 5G of the Civil Liability Act, the plaintiff ought to have been aware that she ran an obvious risk of:

(a) Suffering an aggravation, worsening or further deterioration of her right shoulder injury by reason of performing heavy and physical manual labour tasks;

(b) Not obtaining or having the benefit of, orthopaedic specialist advice, treatment and recommendations by reason of failing to consult an orthopaedic specialist;

(c) Not obtaining appropriate treatment of her right shoulder injury if she did not follow in a timely manner the instructions of her treating medical doctors; and

(d) Suffering injury, whether an aggravation or otherwise, by reason of engaging in a dangerous recreational activity.

16. In answer to the whole of the first amended statement of claim, the second defendant relies on s 5D(1)(a) of the Civil Liability Act and says that the alleged negligence of the second defendant was not a necessary condition of the injury, damage and/or loss suffered by the plaintiff as alleged or at all.

…

18. The alleged cause of action did not arise within 3 years before the commencement of this action and is barred by the Limitation Act 1969.”

22. Both defendants also plead contributory negligence. I shall address the issue of contributory negligence later in this judgment. As pleaded at [18] above, there is also an issue of limitation, which I will address after I have dealt with the liability of the second defendant.

Factual disputes

23. In addition to the issues already raised in the pleadings, significant further issues of fact arise between the plaintiff and both defendants. Starting with the claim against Nepean Hospital, the key factual disputes are as follows:

1. whether the plaintiff was told during her admission to Nepean Hospital between 19 and 21 September 2010 that orthopaedic follow up in respect of her right shoulder would be required after discharge;

2. whether on 20 September 2010, the attending physiotherapist, Mr Fogarty, advised the plaintiff that she needed to perform “J” exercises so as to work through the pain barrier and avoid a frozen shoulder or surgery, and whether he told the plaintiff to dispense with her shoulder immobiliser as soon as possible after discharge; and

3. whether Dr Lee, who saw the plaintiff at the plastics clinic on 28 September 2010, provided her with a written referral from Dr New or a “To Whom it May Concern” letter (Ex D1/5, Tab 26, p 504) suggesting the need for a referral to an orthopaedic surgeon; and further, whether he actually advised the plaintiff on 28 September 2010 that she needed to see an orthopaedic surgeon for further follow up of her right shoulder.

24. Beyond 28 September 2010, a significant issue arises as to what Dr New’s secretary/receptionist told the plaintiff when she telephoned his office on or around that day to try to make an appointment.

25. A number of significant factual issues also arise between the plaintiff and Dr Percy, particularly in respect of the signs and symptoms with which the plaintiff presented on her 14 October 2010, 28 October 2010 and 11 November 2010 appointments, and what advice Dr Percy provided her on those occasions.

26. In a matter such as this, where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, it is well established that the process of fact finding should be informed as far as possible “on the basis of contemporary materials, objectively-established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118 at [30]-[31] (Gleeson CJ, Gummow and Kirby JJ).

The accident

27. The circumstances of the plaintiff’s accident are uncontroversial. On 19 September 2010, the day of the accident, the plaintiff fed her horses as usual. After she had given hay to her oldest stallion, Gordost, she thought that one of his hay biscuits was close enough to the gate that he might push it under and out of reach. She crouched down at ground level and pushed the biscuit of hay back towards him as he ate another biscuit. While the plaintiff was doing this, Annakova, one of her younger mares, approached the gate. At her approach, Gordost lunged forward, ears flat back, and savaged the plaintiff’s right arm, which was still reaching through the gate.

28. The plaintiff says that while Gordost was biting her arm, he was also aggressively pulling it up and back towards him. With the round steel bar of the gate about an inch or two down from the top of the plaintiff’s shoulder, the leverage created by his pulling pushed the top of her humerus, where her upper right arm where meets the shoulder, forward and down onto her ribs. The force of Gordost’s attack caused the plaintiff’s head to hit the gate bar twice, and inflicted a small cut near the outer edge of her right eyebrow. After the attack, the plaintiff was conveyed by ambulance from her property at Freeman’s Reach to Hawkesbury Hospital.

Findings on credibility

29. Before I turn to the plaintiff’s treatment, it is appropriate that I record my findings on her credibility, as well as that of the medical staff of Nepean Hospital and of Dr Percy. I observed both the plaintiff and Dr Percy carefully when they gave evidence and were cross examined. The plaintiff underwent a lengthy cross examination. The hospital staff gave evidence based on the hospital records and their usual practice.

(1)   The plaintiff

The plaintiff’s submissions

30. Senior counsel for the plaintiff submitted that she should be accepted as a witness of truth and credit. She has lived, in many ways, within a small radius. She has spent most of her adult life in Freeman’s Reach and Vacy. She is not sophisticated or highly educated, having left school at the age of 16 without completing a school certificate. With the exception of modelling, she has dedicated all of her work to horses. Senior counsel noted that the plaintiff’s life experience has been entirely rural, and that she has done her best to give evidence according to her abilities.

31. Recently, the plaintiff has been living in a horse float, alone except for the company of her horses and cats. Although she was involved in prior legal proceedings relating to her land, those proceedings settled, and before this hearing she had never before been to court. The plaintiff presented in these proceedings as a person whose whole life has been dedicated to horses, and who has been distressed since her injury by her inability to engage in the activities she had always been able to do herself.

32. Senior counsel conceded that at times, the plaintiff was a difficult witness. In the witness box, she could not resist the urge to tell the Court whatever she felt compelled to say about the evidence, whether or not it was relevant. Her counsel noted that although her demeanour was unfortunate, not all witnesses are good witnesses in a technical sense. Sometimes, technically proficient witnesses are untruthful, but can tell a fiction coherently. The plaintiff found it very hard at times to speak clearly. She was frequently confused, and gave answers to questions that she was not asked. However, senior counsel argued that her difficulty in delivering her evidence coherently should not reflect poorly on her credibility. He submitted that in weighing her up her evidence, the Court should find that she was an honest witness, and that her unpolished presentation was consistent with her background.

Nepean Hospital’s submissions

33. Counsel for the first defendant submitted that the Court must treat the plaintiff’s evidence with considerable caution, and hesitate to accept her version her dealings with the first defendant, Dr New’s secretary and Dr Percy in 2010. The first defendant argued that the Court should only prefer the plaintiff’s version to that put forward by other witnesses where her version is corroborated by contemporaneous documents.

34. Counsel for Nepean Hospital referred to Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 (“Cordin”). In Cordin at [164]-[171], Davies J reviewed a number of authorities relating to credibility and the fallibility of human memory, and noted that contemporaneous statements and documents are likely to be more accurate than a recollection of events.

35. Both defendants also referred to Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 (“Onassis”), where Lord Pearce set out a number of questions that judges may ask themselves when considering whether a witness is telling the truth.  Lord Pearce emphasised that credibility involves wider problems than mere demeanour, which is mostly concerned with whether the witness appears to be telling the truth as he or she now believes it to be. At 431, Lord Pearce characterised credibility as concerning the following problems:

“First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking by an overmuch discussion of it with others? Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed with a Judge assesses the credibility of a witness; they are all part of one judicial process. Andin the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

36. In Cordin, Davies J quoted with approval at [165] part of the last paragraph of the extract from Onassis above.

37. The first defendant submitted that the overwhelming impression that emerges from the plaintiff’s evidence is that she is just the type of person described by Lord Pearce in Onassis. She is an emotional person, utterly convinced that her claims against Nepean Hospital and Dr Percy are morally right. She has replaced her actual recollection of events with an imagined version which gels with her view of her legal rights.

38. The first defendant did not submit that the plaintiff lied in her account of events to the Court. While such a finding would be open to the Court in a number of respects, it is unnecessary. Rather, the first defendant argued that the Court could be comfortably satisfied that the plaintiff’s recollection of key events is wrong, notwithstanding the vehemence of her claims that she clearly remembers important events.

39. Nepean Hospital submitted that the plaintiff’s evidence on this very point (T 419.24) only serves to reinforce its submission that she was reconstructing, not actually remembering, what occurred. Her claim that her recollection of “important things” is “very strong” and “probably exact” is hyperbolic, and demonstrates that she gave evidence out of a deep-seated conviction as to her cause, rather than from a genuine reflection and recollection of what occurred. The plaintiff’s claim that “I remember where I sat, exactly what I heard, and that stayed exactly the same” belies the reality of human memory and again, suggests that the plaintiff is replacing memory with imagination.

The second defendant’s submissions

40. Counsel for Dr Percy went further than counsel for Nepean Hospital and submitted that the plaintiff, in cross examination, did not present as a witness doing her best to answer the questions put to her. She appeared at times to be totally unwilling to answer questions responsively. The second defendant argued that the patent variability of her evidence as to when she telephoned Dr Percy’s rooms for the first time did her no credit. Her apparent reluctance to be candid about such a matter, or to admit error, illustrated her general approach to giving evidence. She was plainly an unreliable witness.

41. The second defendant argued that the plaintiff also at times exhibited a cagey and evasive approach to any perceived challenge to her evidence. Counsel for the second defendant said that the plaintiff’s evidence as to the circumstances in which she created her first statement in Ex A, approximately 43 days before she gave evidence, was evasive and unimpressive: see T 224.22; T 228.20-29.

42. The second defendant argued that the plaintiff gave the impression of a person pursuing an agenda. Counsel for the Dr Percy also agreed with counsel for Nepean Hospital that the plaintiff’s approach to the evidence appeared to involve a very firm and fixed precondition of mind that did not withstand objective analysis.

43. The plaintiff’s recall of consultations that she attended with Dr Percy appeared to be very poor. However, she insisted that she possessed “exact” recall. Under cross-examination, she gave the following evidence:

“Q. Now, isn’t it the case - let’s be totally frank - isn’t it the case that from time to time, you’ve had difficulty remembering the exact sequence of events in relation to your contact with Dr Percy?

A. No, I don’t have any problem.

Q. Isn’t it the case that over time, your recollection of events has changed?

A. No, I don’t believe that.

Q. You don’t believe that. Do you concede that it might be possible that your recollection has changed over time?

A. No, I believe my recollection of important things as very strong.

Q. Would you go as high as to say that your recollection of important things is perfect?

A. Probably exact, like, when things were told to me, I remember where I sat, exactly what I heard and that stayed exactly the same.

Q. You don’t accept that your memory might have degraded over time.

A. Not specifically.”

44. In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq observed:

“...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

45. The credibility of a witness and her veracity may be tested by reference to the objective facts proved independently of the evidence given, particularly by reference to the documents in the case, with regard to the person’s motives and to the overall probabilities: see Armagas Ltd v Mundogas SA (the “Ocean Frost”) [1986] 2 All ER 385; 1 Lloyd’s Rep 1 per Robert Goff LJ at 57, and Kit Digital Australia Pty Ltd (in Liq) [2014] NSWSC 1547 per Black J at [7].

46. The second defendant argued that the objective materials do not reflect well on the plaintiff’s credibility. Notwithstanding the plaintiff’s modest income, on 13 July 2007 she signed an Australian Taxation Office form that represented her GST turnover at 3 June 2007 to be more than $150,000. When asked why she misrepresented her income, she gave the following evidence (T 203.4-5):

“Q. Now, going back to page 9 you said to Mr Obeido, ‘I don’t think I can possibility earn that much’.

A. That’s right.

Q. And Mr Obeido said, ‘Well you’ll just have to do it or it won’t go through’?

A. That’s right.

Q. And plainly that was a reference to, you’ll have to complete the document in the manner I’m suggesting or the loan won’t be advanced to you?

A. Well, that would be right.”

47. The plaintiff also at times changed her evidence. When she was first asked whether she had sought the assistance of Mr Obeido, her answer was as follows (T 169.38-421):

“Q. That document contains information in relation to your personal circumstances that led you to seek the assistance of a Mr Obeido, a broker?

A. Well, I didn’t seek the assistance but - it was an accidental meeting - but, yes, he - he was a loan broker who organised this loan.”

48. The plaintiff later gave the following evidence (T 182.16-26):

“Q. So it would be fair to characterise your contact with Mr Obeido as you seeking his assistance to obtain a loan?

A. Yeah, because - yeah. He said I could when I asked him –”

49. Counsel for Dr Percy argued that the plaintiff’s apparent reluctance to be candid about such a matter, or to admit error, demonstrates her general approach to giving evidence. She was plainly an unreliable witness. Her testimony was indefinite and therefore the second defendant submitted that the Court ought to reject her evidence on any contentious issue, unless it is corroborated by a reliable source.

Conclusion

50. The plaintiff was a most difficult witness. Often she did not focus on the question she was asked, but rather gave a non-responsive answer in the form of a stream of consciousness. From time to time I requested that the plaintiff concentrate on answering the question that was asked, but it made no difference. Eventually I advised her that if she did not try to answer the questions asked, I would have little choice but to make adverse findings against her credit. Nevertheless, she continued to volunteer irrelevant information (T 239.3-5).

50. I take into account and I agree with the examples of unreliable evidence set out in the defendants’ submissions. I will include one further example which was telling of the implausibility of her evidence. In cross examination, the plaintiff gave the following evidence regarding her left knee (T 411.43-50; T 412; T143):

“Q. Dr Boyle recommended you undergo the surgical procedure. Correct?

A. Yes.

Q. She was the orthopaedic specialist to whom you’d been referred by your general practitioner to determine what was the best course of action for you to take in relation to your knee.

…

Q. Dr Boyle advised you that you should undergo the surgery. Correct?

A. Yes.

Q. And indeed, in pursuit of that advice you scheduled the surgery on 6 June.

A. Well, he did, yes, the public list, yes.

Q. You and he arranged --

A. Well, he did.

Q. - that you would make yourself available on 6 June to undergo the procedure. Correct?

A. Yes, yes.

Q. But you tell her Honour that the people on the farm whom you live with or whose farm or land you live upon, who are also medical practitioners.

A. No.

HER HONOUR: One is, I think.

…

HUTCHINGS

Q. What sort of medical practitioner is that person?

A. Sandra Cabotha (as said).

HER HONOUR

Q. What sort?

A. Well, I don’t know she’s like a celebrity‑type doctor, she’s a GP I guess but --

HUTCHINGS

Q. Could you spell her surname doing the best you can please?

A. Well, her real names McRae but they – she’s called Dr Sandra Cabot, I’m not sure how you spell it.

Q. G-A-B-O-T perhaps?

A. That’s the, like, name for her products but I think she’s really known as Dr Sandra McRae, I think.

Q. I must admit it’s the first I’ve ever heard of her but anyway. So at the time that you determined not to have the procedure your reasoning was the difficulty you would have having anyone take care of the horses because of the attitude of those who owned the land upon which you live. Correct?

A. I was told I just couldn’t have it, flat no, I was not allowed to..(not transcribable)..that was‑

HER HONOUR

Q. Who said you weren’t allowed to?

A. Jackie, the mother.

HUTCHINGS

Q. I’m going to try and break this up because otherwise it will lead to some conflation and confusion when we all read the transcript later. You were told that the landowners, if I can call them that‑

A. Mm.

Q. –wouldn’t permit somebody else to come onto the land to look after your horses. Is that correct?

A. Yes, and they wouldn’t either.

HER HONOUR

Q. They wouldn’t look after the horses.

A. No, and they said I couldn’t have someone come and I had to wait till I had my own matters sorted and on my own. And that - I don’t think they‑

…

HER HONOUR

Q. Until I get, I think, this matter, you mean, the litigation sorted?

A. Yeah, that - that I got somewhere else to go and I don’t think they believed I needed the surgery anyway. My knees good anyway so maybe they were right.

HUTCHINGS

Q. So an orthopaedic surgeon told you, you should undergo the surgery but a celebrity general practitioner told you, you shouldn’t‑

A. No, I didn’t have any contact with her, it was her mother, Jackie.

Q. The mother of a celebrity‑

A. Mm.

Q. - general practitioner told you, you shouldn’t and you preferred that advice over the advice of an orthopaedic surgeon.

A. No, it wasn’t shouldn’t that I could not do it while I was on their property. Might I say my knees good so maybe it was blessing.”

52. The first part of the plaintiff’s evidence, that the landowners may not have permitted someone to come onto the property, may be correct. However, the idea that the plaintiff accepted the advice of the mother of a celebrity general practitioner, who told the plaintiff that she did not require knee surgery, is ridiculous.

53. I have reluctantly come to the conclusion that I should treat the plaintiff’s evidence with caution, unless the evidence she gave is against her interest or is corroborated by other witnesses or objective contemporaneous material. I also agree that the plaintiff displayed the characteristics set out in Onassis.

(2)   Nepean Hospital staff

54. So far as the medical practitioners and physiotherapists who treated the plaintiff at Nepean Hospital are concerned, I accept their evidence as truthful. They have relied on their contemporaneous records and have given evidence that accords with them. Where they do not recall events, they have said so.

(3)   Dr Percy

Dr Percy’s submissions

55. Counsel for Dr Percy submitted that in cross examination, the plaintiff’s counsel was unduly critical of the content of Dr Percy’s clinical records and appeared to suggest, without a proffered basis, that he had no recollection of the details of conversations outside of what he previously recorded in the documents. Dr Percy noted that his clinical records were created for a limited purpose as an aide memoir, and do not represent the entirety of his recollections (T 548.07-12).

56. In Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, Basten JA observed the limits of the content of medical records in the following terms at [8]:

“…The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:

(a)   the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);

(b)   medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;

(c)   the histories did not make reference to the questions which elucidated the replies;

(d)   the material recorded was a summary of answers rather than a verbatim recording; and

(e)   there may be a range of factors, including fluency in English, the practitioners knowledge of the background circumstances of the accident and the patient’s understanding of the purpose of the question, which will affect the content of the history.”

57. Dr Percy argued that for these reasons, the attempt to impugn his evidence ought to be rejected, and he should be accepted as a truthful and reliable witness.

The plaintiff’s submissions

58. Senior counsel for the plaintiff submitted that Dr Percy should not be accepted as a credible witness except where his evidence and that of the plaintiff coincide. Dr Percy’s notes reveal that he changed dates, and he represented himself and the plaintiff as having engaged in conversations that bolster his case, although they are supported by no contemporary notes.

59. Dr Percy’s statement was made on 21 August 2018, almost seven years after the relevant events. The plaintiff argued that it would be almost impossible to imagine someone retaining a memory of conversations which were not noted for seven years. The plaintiff further argued that the letter Dr Percy wrote to the plaintiff’s solicitor at the time closer to the event, dated 19 July 2011 (Ex K), still does not support his version of what occurred in the conversations. Wherever there is conflict between the two, the plaintiff says that her evidence should be preferred. Counsel for the plaintiff referred to Dr Percy’s evidence where she argues it should be rejected in relation to specific events. I shall refer to that evidence when it arises in the judgment.

Conclusion

60. Dr Percy gave clear and concise evidence. When he was found to be mistaken in his evidence, such as writing an incorrect day or month in his clinical notes, he agreed he was mistaken. It is true that he altered two entries in his clinical notes where he had written the year “2011”, when instead those entries should have been dated the same day and month but in “2010”. Those entries run in the proper chronological order, so I do not make any adverse findings with regard to his alterations.

61. In the letter that Dr Percy wrote to the plaintiff’s solicitor at the time dated 19 July 2011 (Ex K), he briefly set out what occurred during each of the relevant appointments with the plaintiff. The letter’s contents are not dissimilar to what is contained in his statement. On the last page, he does proffer advice and criticism of the plaintiff’s decisions when he says:

“I personally would like Diana, if her right shoulder problem persists or deteriorates despite physiotherapy, to pursue Dr Duckworth’s offer of review and perhaps consider the possibility of a major right shoulder reconstruction with either Dr Duckworth or someone else of her choosing.

However, there would be no point to even considering such an option, until Diana was genuinely prepared for some months of convalescence, in which she could avoid property maintenance or other tasks that could have a negative effect on her healing process, because it has been very obvious that her current life style has not only caused her current initial right arm injuries, but has also caused new injuries and hampered their healing process.

I sincerely hope that Diana can sort out her current financial predicament and fine some other lifestyle that is not so deleterious to her health, but I appreciate this will involve some very hard and difficult decisions.”

62. Senior counsel for the plaintiff submitted that Dr Percy’s evidence in the letter should not be accepted, because he was attempting to persuade the solicitor not to sue him. Although it may well have been Dr Percy’s intention to avoid a suit, the letter—with the exception of the portion quoted above—contained a fairly accurate report of what his other evidence claims to have occurred during the consultations.

63. In his written submissions in reply, senior counsel for the plaintiff also pointed out in cross-examination some of the more obvious contradictions in Dr Percy’s evidence. In particular, he pointed to Dr Percy’s decision to prescribe Tramadol, even though the notes suggested that the plaintiff was feeling quite well. However, Dr Percy gave oral evidence which explained why he prescribed Tramadol in the following exchange (T 509.1-9):

“Q. But if you were giving her Tramadol on 28 October, that would suggest, would it not, that her shoulder had not healed as you suggested it had?

A. I didn't feel the shoulder had healed. I--

Q. The ligaments were intact. That would suggest the ligaments were not intact, would it not, that you were giving her Tramadol?

A. Just - I mean, she still had shoulder pain, so there was something still not right with the shoulder.”

64. I agree that it must have been difficult to accurately recall conversations that occurred eight years earlier. However, Dr Percy was able to refer to his clinical notes, copies of referrals made by him and letters from those medical practitioners replying to the referrals. I have carefully compared Dr Percy’s version of the conversations with his clinical notes to check for consistency. They are broadly consistent.

65. Overall, I accept Dr Percy’s evidence as reliable and where his evidence is in conflict with that of the plaintiff, I prefer his evidence. The one exception to this preference is where he recorded that the plaintiff used a mattock. I refer to this evidence in more detail later in this judgment.

Events after the accident

Hawkesbury Hospital

66. On 19 September 2010, the day the accident occurred, the plaintiff was taken to Hawkesbury Hospital by ambulance. She had dislocated her right arm at her shoulder. At Hawkesbury Hospital, her right arm was replaced in its socket. She was then conveyed to the Nepean Hospital for plastic surgery in relation to the horse bite.

Nepean Hospital

67. The plaintiff was an inpatient at Nepean Hospital from 19 to 21 September 2010. At 16.48 on 19 September 2010, an x-ray of the plaintiff’s right shoulder was taken (Ex D1/5 defendants’ individual tender bundle, Vol 2, Tab 25 p 448). The x-ray report is in the following terms:

“the right humeral head is normal in location. There is moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency. There is moderate degenerative change in the right acromioclavicular joint. No fracture is evident.”

68. It is important to note that although the x-ray revealed no fracture, it did show a moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency.

69. Later that day, the plaintiff consented to undergo plastic surgery on her right forearm (Ex D1/5, Vol 2, Tab 25 p 449). On the following day, 20 September 2010 at 16.40, the plaintiff had an operation debriding the horse bite wound on her right forearm using a skin graft from her right thigh (Ex D1/5, Vol 2, Tab 25 p 458).

70. According to the hospital recovery progress notes (Ex D1/5, Vol 2, Tab 25 p 459), the plaintiff arrived in recovery at Nepean Hospital with the limb in situ. The notes record a dressing on the right forearm, a dressing on the right thigh donor site and a sling in situ to the right forearm. By 17.15 on 20 September 2010, the plaintiff was awake and experiencing pain in her right thigh. The plaintiff did not complain about the performance of the skin graft and it does not form part of her claim.

71. Drs Rannard and Lee, and physiotherapist Mr Fogarty, provided statements. I closely watched as the latter two were briefly cross examined. They have no personal recollection of the plaintiff and based their evidence on the hospital’s clinical notes and their usual practice. I found them to be truthful witnesses and I accept their evidence.

Drs Rannard and Lee

72. Dr Francesca Rannard, a registrar in plastic surgery at Nepean Hospital, relied upon her statement dated 24 August 2018. She was not called for cross examination. Dr Rannard probably saw the plaintiff on 20 September 2010 (Ex D1/5, Vol 1 Tab, 4 p 38). She relies upon her notes and knowledge of her usual practice. Part of Dr Rannard’s stated plan for the plaintiff was, “We needed an orthopaedic opinion in respect of how long Ms Makaroff should be in the collar and cuff” (Ex D1/5, Vol 1, Tab 4 p 40 at [21]). Dr Rannard says that she would have said to Ms Makaroff, “Have you got an appointment to go back and see an orthopaedic surgeon about your shoulder?” If the plaintiff had said she did not have an appointment, then Dr Rannard would have told her, “You need to see someone about your shoulder. We will check about the follow up reports” (Ex D1/5, Vol 1, Tab 4 p 41 at [24]).

73. Dr Rannard was familiar with the practicalities of seeking to have a patient seen in the orthopaedic outpatients clinic, and stated that it was not unusual for patients who had suffered wounds requiring plastic surgery to have also suffered some type of orthopaedic injury that required the involvement of an orthopaedic surgeon. Dr Rannard also stated it was her experience that when the hospital sought to organise patients to be seen in the orthopaedic clinic, as at September 2010, it took typically between one and two weeks (Ex D1/5, Vol 1, Tab 4 p 42 at [30]-[31]). The plaintiff did not have an orthopaedic surgeon. Dr Rannard did not personally make arrangement with the plaintiff for her to see someone about her shoulder.

74. Dr Joe Don Joo Lee was an intern at Nepean Hospital completing a plastic surgical rotation at the time of the plaintiff’s admission. He relied upon his statement dated 23 August 2018 (Ex D1/5, Vol 1 Tab 2). He was briefly cross examined. He has no recollection of meeting the plaintiff. His evidence is based on his interpretation of the notes he made on the day as an intern accompanying Dr Rannard and Dr Turner, two plastics registrars at Nepean Hospital (Ex D1/5, Vol 1, Tab 2 pp 458-468).

75. Based on his review of the records for the plaintiff, Dr Lee has no doubt that by the time he went to see her on the morning of 21 September 2010, he was aware that she had been bitten by a horse and that the wound had been debrided and washed out and treated by a skin graft. He was also aware that the plaintiff had dislocated her right shoulder in the horse bite incident, and that it had been relocated at Hawkesbury Hospital.

76. He could not recall discussing the plaintiff’s plan of management with a more senior doctor in plastics surgery, but it is likely that he did so ([19]).

77. Dr Lee said that the plaintiff had been doing shoulder exercises as directed by her physiotherapist (Statement [21]; T 465.10). The Nepean Hospital file records an entry “not to bend elbow” (Ex D1/5, Vol 2, Tab 25). Dr Lee was not sure whether he was recording something somebody had told him to that effect (T 465.45). The entry “not to bend elbow” does not accord with the physiotherapist’s evidence. Dr Lee wrote this note after Mr Fogarty had spoken to the plaintiff the day before and showed her how to put on and take off an immobiliser. I will return to Dr Lee’s evidence shortly, as I am writing this judgment following the chronological order of events for ease of understanding.

Mr Fogarty

78. The plaintiff says that she was seen by a male physiotherapist at Nepean Hospital. She says that he instructed her that she should do certain “J” exercises for her right arm so as to avoid surgery. She demonstrated the “J” exercise while giving evidence in the witness box. She says that she continued to do the “J” exercises as instructed both in hospital and at home.

79. The plaintiff’s evidence is that she completed the “J” exercises every day between 28 September 2010 and 14 October 2010.. She completed those exercises a few times a day for about a few minutes at a time (T 218.45-46; T 219.1-3).

80. Mr Brendan Fogarty, physiotherapist, relied upon his statement dated 23 August 2018 (D1/5, Tab 3). He was briefly cross examined. He has no recollection of the plaintiff and relied upon his notes and usual practice to prepare his statement.

81. It is common ground that on 20 September 2010 at approximately 14.00 hours, Mr Fogarty saw the plaintiff for a physiotherapy review. There are factual disputes as to what occurred. The plaintiff says that he provided her with a sling and the following advice (T 83.13-18; T 84.30-35):

“…

A. Yeah. Well, he gave me a sling and told me to do away with it as soon as I could after I got home because he was adamant about - that these “J” -exercises--

…

Q. What I’m suggesting to you is that when he came to see you that day, he showed you the piece of fabric, the immobiliser that he was going to fit you - do you recall him showing it to you at an early part of that attendance or not?

A. No, no. It was the last part because then we put it on. He put it on but after - after he’d talked to me about what exercises I had to do and he did say that the sooner I - I needed to do away with it, the better.”

82. The alleged advice appears to have established the idea in the plaintiff’s mind that she had a soft tissue injury that only required exercise “through the pain barrier” to avoid a frozen shoulder and to heal (T 102.12-19; T 116.12-15):

“Q. Did you tell him it was painful?

A. Well, he said to me, ‘You’ - he - he said - and I remember distinctly. You don’t forget this. He said, ‘You’ve got to work through the pain barrier.’ He said, ‘Most people with this injury don’t do the exercises properly because it’s so painful but - but I know what it’s like working with horses and if you don’t do this, you’re going to – you’re going to have a frozen shoulder and need surgery,’ so he put the fear into me that I’ve got to do these exercises because –”

83. Mr Fogarty’s evidence (D1/5, Tab 3 pp 27-28) is that by the time he came to the short stay ward to see the plaintiff at approximately 14.00 hours on 20 September 2010, it is very likely he was aware that she had suffered a traumatic right shoulder dislocation, which had subsequently been relocated at Hawkesbury Hospital. It is also very likely that he was aware that there was a skin graft planned because of the horse bite to the plaintiff’s right arm. He was asked to attend upon her to fit a shoulder immobiliser pending further medical review.

Result

582. The plaintiff’s claim fails. The result is that I enter judgment for the defendants.

583. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs.

Judgment

(1)   I enter judgment for the defendants.

The Court orders that:

(2)   The plaintiff is to pay the defendants’ costs.

**********

Decision last updated: 14 June 2019