Makaroff v Nepean Blue Mountains Local Health District  NSWCA 107 (on Caselaw) is a decision of the NSW Court of Appeal which touches on two interesting legal issues.
As drawn from the headnote, 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.
First instance decision
The primary judge had 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 outcome of the appeal.
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: , ,  (Brereton JA),  (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: ,  (Brereton JA). Breach of duty by the Hospital was therefore established:  (Brereton JA),  (Simpson AJA).
(Per Simpson AJA):
The Hospital further breached its duty by failing to refer the appellant for radiological investigation: .
(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: . No new particular of negligence was therefore sought to be raised on appeal: .
(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: , . 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: .
In relation to Issue 2 (causation – Hospital):
(Macfarlan JA found it unnecessary to decide: ).
(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:  (Brereton JA),  (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:  (Macfarlan JA),  (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):  (Brereton JA).
In relation to Issue 4 (causation – Dr Percy):
(Macfarlan JA found it unnecessary to decide, Brereton JA and Simpson AJA agreeing:  (Macfarlan JA),  (Brereton JA),  (Simpson AJA)).
Was section 5O relevant? The section 5P information issue.
At , 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. This apsect of the claim was apparently not drawn to the attention of the primary judge (see ).
“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.”
In relation to that submission Brereton JA at  said:
On the view I take, it is unnecessary to consider the appellant’s submission that, by reason of Civil Liability Act 2002 (NSW) (‘CLA’), s 5P, s 5O is not applicable because the negligence alleged is in connection with a failure to give advice in respect of the risk of injury to a person associated with the provision by a professional of a professional service, save to observe that there is much to be said for the view that s 5P was intended to preserve the distinction between the role of medical practitioners in providing diagnosis and treatment, and in providing advice or information, that was recognised by the High Court in Rogers v Whitaker. This is because my above conclusion, that the advice Ms Makaroff was given by the Hospital was not in accordance with appropriate professional practice, is incompatible with a defence under s 5O that the Hospital acted in a manner that was widely accepted as competent professional practice.
In relation to the section 5P issue, Simpson AJA commented at  – :
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.
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).
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.
Was section 5O available to the hospital defendant?
Simpson AJA said at  – :
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.
That, in turn, raises a potential issue of the application of Pt 5 of the Civil Liability Act.
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.
On that final point, Brereton JA said at  that it was not necessary to consider whether the Hospital is a “professional” for the purposes of the CLA.