Makaroff v Nepean Blue Mountains Local Health District - [2021] NSWCA 107 - NSWCA 2020 case summary — Zoe

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Makaroff v Nepean Blue Mountains Local Health District

[2021] NSWCA 107

Court of Appeal (NSW)|2020-10-06|Before: Macfarlan JA, Brereton JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2020-10-06

Before

Macfarlan JA, Brereton JA

Catchwords

[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

Source

Original judgment source is linked above.

Catchwords

[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

Judgment (56 paragraphs)

[1]

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

[3]

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)).

[5]

THE GROUNDS OF APPEAL

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.
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.
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".
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."
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."

[6]

Ms Makaroff's admission to the Hospital

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

[7]

Consultations with Dr Percy

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."
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.
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."
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.
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."
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."
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."
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."
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."
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."
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?"
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".
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."
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.
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.

[29]

Ground 1 against the Hospital - advice as to timing

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

[34]

Conclusion

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.
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".
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".
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.
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.

[35]

BREACH OF DUTY

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).
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.
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] 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.
Ms Makaroff pleaded that in breach of those duties, the Hospital (emphasis added): [4] 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.
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).
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.
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."
In a separate response, Dr Duke, orthopaedic surgeon, also agreed.
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."
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."
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."
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."
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."
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.
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."
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."
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".
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.
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."
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."
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"
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."
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."
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.
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.
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.
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."
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]
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".
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."
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 28th, 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 - "
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.
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".
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 2nd daily dressing … to right forearm … 2. To maintain dressing on right leg … 3. To see orthopaedic specialist with regard to ® shoulder."
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."
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."
The trial judge substantially accepted Dr Percy's version, concluding in respect of Ms Makaroff's consultation with him 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."
As to what advice Ms Makaroff was given by the Hospital, the trial judge, accepting Dr Lee's evidence, concluded: "[111] 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."
It is not in dispute that Ms Makaroff was told that she should see an orthopaedic surgeon and given a referral for that purpose, and that she telephoned Dr New's rooms. There is no doubt that she was given the 'To Whom It May Concern letter', as it found its way to Dr Percy and was produced as part of his records. It is also clear enough that, chiefly for financial reasons and in the context that her shoulder appeared to be improving, she preferred to have her condition managed by her GP. The issue is whether it was made sufficiently clear to her that it was imperative that she have an orthopaedic review, and urgently.
While Ms Makaroff undoubtedly was told - by the Hospital and by Dr Percy - that she should see an orthopaedic surgeon, all she was told, at least by the hospital doctors, was at a general level that she 'needed' follow‑up in respect of her shoulder. Even Dr Percy's stronger advice did not rise higher than that "you really need to be seen by an orthopaedic specialist" and to the effect that her shoulder "would be better assessed and cared for by a specialist". The imperative nature of such a consultation, and the urgency, was not conveyed to her. While she was told that she 'needed' to see an orthopaedic surgeon for a follow-up in relation to her shoulder, she was not told was that it was essential that she do so, and urgently. She was not informed of any risk of not doing so. The somewhat elastic word "need" obscures, or at least does not adequately convey, the imperative nature of the consultation. As Dr Duke explained, it is not enough to say to a patient "You need to see an orthopaedic surgeon", as that does not adequately convey the imperative of doing so. Follow‑up, as Ms Makaroff said, can imply something relatively routine, just to check that everything is in order post-operatively (as distinct from investigating a potential serious and as yet undiagnosed and untreated issue).
Counsel for the Hospital referred to the following evidence given by Dr Sonnabend, and submitted that it amounted to an acceptance by Dr Sonnabend that the Hospital had discharged its duty, because it had caused Ms Makaroff to telephone Dr New's rooms: "WITNESS SONNABEND: What I was trying to imply before when I sued the analogy of the professor of anatomy or someone else was that your explanation depends on the capacity of the patient to understand. But if the patient can understand the explanation, you should offer it to them. Or you would offer it to them. DOWNING: But if the patient - what you're ultimately trying to achieve here, is the patient coming back for orthopaedic review. WITNESS SONNABEND: Of course. DOWNING: So if the patient does call the next day, or the same day, then you've communicated what you need to communicate. WITNESS SONNABEND: Then you've achieved your - yes. Yes."
I do not accept that submission. In the context in which that evidence was given, Professor Sonnabend was simply accepting the logic of the proposition that it followed from the patient contacting the specialist's rooms that the need to do so had been sufficiently communicated. That was not a matter of professional opinion, but a deduction of fact to which he acceded. It does not amount to an opinion that it was proper professional practice to tell her no more than she was told. The essence of Professor Sonnabend's evidence in this question was that if it was made clear to Ms Makaroff that it was essential that she be followed up in a short time, that was appropriate and sufficient; and if it was not, it was inappropriate and insufficient. [8]
It was submitted that there was no suggestion or evidence that Ms Makaroff was under any misapprehension or confusion about the need to have an orthopaedic consultation. This is beside the point: it was not in dispute that she understood that the Hospital and Dr Percy had recommended that she do so; what was in issue was whether the essentiality and urgency of doing so had been adequately brought home to her, and her evidence was to the effect that it had not.
It was also submitted that Ms Makaroff's response to the Hospital's advice, in contacting Dr New's rooms, demonstrated that she understood the imperative of doing so. I am unable to agree. A patient who, having been told that a follow up is desirable or a good idea - or even 'needed' - and having been given the contact details of an orthopaedic surgeon, makes a phone call to that orthopaedic surgeon, to be told that a consultation will cost $200, will have to make a judgment at that point as to whether or not to proceed. It is the decision at that point that will be informed by the patient's understanding of the criticality of the consultation, rather than when making the call to initiate contact. A patient who understands that the review is imperative and urgent might well proceed despite financial hardship, while one who thought it was simply a routine check might not, especially if her shoulder seemed to be improving.
The trial judge addressed the relevant particular as follows (emphasis added): "(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 [194] Senior counsel for the plaintiff submitted that the hospital's failure to inform the plaintiff that an ultrasound of the shoulder and a consultation with an orthopaedic surgeon were essential was not widely accepted by peer professional opinion as competent professional practice. Nepean Hospital's submissions [195] The effect of the expert evidence is that it was adequate to convey to the plaintiff on 28 September 2010 that she needed to return to an orthopaedic surgeon for review of her shoulder. It was not necessary to go further and say that an ultrasound or MRI investigation was essential, or to then organise it. Evidence [196] Dr Duke conceded that the need in this case was for the plaintiff to be referred to an orthopaedic surgeon for review within a relatively short period of time, which obviated the need for the hospital to organize any imaging: see (T 574.42), as well as Dr Duke's response to the joint conference report of 5 September 2018 at [3.5]. [197] Professor Sonnabend indicated that there was no need to perform any imaging, provided the plaintiff was to be reviewed by an orthopaedic surgeon within two to three weeks (T 564.45). [198] All witnesses participating in the joint conference answered question 3.5 to the effect that the need was for the plaintiff to be referred for orthopaedic review within a relatively short time, and that this obviated the need for further investigations. None of the experts suggested that there needed to be a detailed discussion about the need to undergo MRI or ultrasound in addition to organising the referral for orthopaedic review. [199] On 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. The allegation of breach of duty of care fails."
The first observation to be made about these reasons is that the relevant particular had two components: (a) failure to inform that an ultrasound or MRI of the shoulder was essential, and (b) failure to inform that an orthopaedic consultation was essential. Her Honour correctly referred (at [194]) to both limbs of the submission, although not referring specifically to the MRI, and then summarised (at [195]) the opposing submission that it was adequate to convey that Ms Makaroff needed to return to an orthopaedic surgeon for review: "It was not necessary to say that an ultrasound or MRI was essential". However, the burden of the evidence of Dr Duke and Professor Sonnabend, set out above, was that it was necessary to emphasise to the patient that the follow up consultation (as distinct from an ultrasound or MRI) was essential, so that the patient understood its importance. Her Honour then focussed on the topic of imaging (at [196] and [197]), and (at [198]) acknowledged the expert evidence to the effect that the need was for Ms Makaroff to be referred for orthopaedic review within a relatively short time, and that this obviated the need for further investigations in the meantime. From there her Honour proceeded (at [199]) to dismiss the particular, on the basis that it was competent professional practice to advise Ms Makaroff that she needed orthopaedic review, but not necessarily to advise her of the need for an ultrasound or MRI.
Nowhere does her Honour appear to deal with the contention that, conformably with the evidence of Dr Duke and Professor Sonnabend, with which no one appears to have disagreed, it was necessary to emphasise the essentiality of the consultation. The closest that the judgment approaches to dealing with this issue is in the passage at [193], set out above, [9] where her Honour finds that there was 'a plan of sorts' and records that on 28 September 2010, Dr Lee told Ms Makaroff, "With your shoulder you need follow up. Please see your general practitioner to get a referral to an orthopaedic surgeon", 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." Her Honour found that Ms Makaroff 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. However, that does not amount to a finding that the essentiality and urgency of the consultation was conveyed to Ms Makaroff, nor that she understood it.
The evidence established that proper professional practice required that the Hospital advise Ms Makaroff that it was essential that she have a specialist orthopaedic consultation, within a short time, namely two to three weeks. There was no finding that the essentiality and urgency of the consultation was conveyed to Ms Makaroff, nor evidence that would support such a finding. Adapting Dr Sonnabend's words, it was not made clear to Ms Makaroff that it was essential that she be followed up in a short time. It follows that the advice she was given by the Hospital was not in accordance with what he said, and no expert disagreed, was appropriate professional practice in the circumstances. In my judgment, breach of duty by the Hospital was established, in failing to advise the appellant that it was essential that she have an orthopaedic review urgently - that is to say, within two to three weeks.
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. [10] 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. Nor is it necessary to consider whether the Hospital is a "professional" for the purposes of the CLA.

[37]

Notice of Contention - was the shoulder irreparable?

The report of the expert conclave relevantly included the following opinions as to the latest time at which Ms Makaroff could have been offered surgery as an option: [13] "If the plaintiff had a normal shoulder until September 2010, an operation within three months would almost certainly have resulted in an excellent shoulder, but the chances of success would be reduced rapidly with the further passage of time - according to Prof Sonnabend. Assuming the plaintiff's shoulder was normal until September 2010, it cannot be determined as to what time surgery would have provided a good clinical result - according to Dr Cummine. It is not possible to determine when the plaintiff's shoulder injury would have not been repairable using standard surgical techniques - according to Prof Murrell."
Dr Duke agreed with Professor Sonnabend's opinion expressed in the first paragraph, and disagreed with Prof Murrell's contained in the last paragraph. [14]
The respondents' case was founded on evidence of Professor Murrell, which her Honour summarised as follows: "[414] Professor Murrell gave evidence that his speciality is shoulder surgery. He has performed an average of 300 rotator cuff repairs per year, and as such is one of the most prolific orthopaedic surgeons in the area. He says that he has published more on rotator cuff injuries, tears and repairs than anyone in the world, and he probably performs the greatest number of rotator cuff surgeries in Australia (T 727.17.30). [415] In his original report dated 3 August 2018 (JCB), Professor Murrell expressed the opinion that if the plaintiff had been taken to surgery in around 11 August 2011, it would have been very difficult, if not impossible, to repair this tendon using standard arthroscopic techniques. Professor Murrell [416] Professor Murrell stated that there are "treatment strategies" for patients. The only one which Professor Murrell advanced in his report in relation to the plaintiff was a reverse shoulder replacement. This was the subject of commentary by Professor Sonnabend and Dr Duke when they gave evidence at the court conclave. Neither of these surgeons appeared to be very impressed by Professor Murrell's suggestion. [417] In his evidence from Paris, Professor Murrell advanced a further proposition which he had not made before, suggesting a repair involving the use of artificial ligaments. If his report of 3 August 2018 is read together with the report of the conclave of experts and the evidence before the court of the conclave, it is clear that the techniques he suggests in his original report, other than the standard arthroscopic repair, were not available at the relevant time after the plaintiff's injury. As such, it is irrelevant to consider those options in relation to the defendants' alleged negligence. [418] Professor Murrell gave the following evidence (T 730.3-12): "Q. Based on the 3 February 2011 ultrasound, do you believe that the plaintiff's presentation as particularly complex or difficult in terms of surgical repair? A. No. As I said, I would - can send the patient for a standard repair, plus or minus a synthetic patch, so be prepared to do either option. Q. Noting that many years have now passed since the 3 February 2011 ultrasound, is it conceivable that the surgery could be done even today? A. Well, again, I would re-image with a new X-ray and a new ultrasound and make that determination, but I can see no reason why it couldn't be repaired again, with one of those techniques.""
Her Honour's reasoning for preferring the evidence of Professor Sonnabend and Drs Duke and Cummine to that of Professor Murrell was as follows: "[419] Professor Murrell gave solo evidence from Paris a day after the other experts gave conclave evidence. Professor Murrell's evidence in his view expressed above is at odds with that of Professor Sonnabend and Drs Duke and Cummine. I accept that there is a possibility that Dr Murrell may be able to repair the plaintiff's right shoulder, but in my view such a repair is not a probability. I make this finding because Professor Murrell did not give evidence as part of the conclave. Hence, his view did not undergo the same rigorous scrutiny as those of the other experts. They were unable to ask him questions and explore and challenge his differing view. Hence, I find that it is more likely than not, on the balance of probabilities, that the plaintiff's injured right shoulder cannot now be repaired."
Thus, while her Honour accepted that it was possible that Dr Murrell might still be able to repair Ms Makaroff's shoulder, she thought it improbable.
The second respondent's submission that it was a denial of procedural fairness to prefer the evidence of the other doctors to that of Dr Murrell, when it had not been the subject of cross-examination, inter alia on the ground that his opinion had not been subjected to the scrutiny of professional colleagues in the conclave, is without substance. It is true that Dr Murrell gave evidence - after and apart from the joint expert evidence, in which he was not able to participate - that, presented with the 3 February 2011 ultrasound, he would not have considered the presentation as particularly difficult or complex in terms of surgical repair; that, subject to obtaining his own imaging, he would have recommended surgery; and that he could see no reason why the shoulder could not be prepared today. It is also true that his oral evidence on that topic was not the subject of cross-examination. But while it might have been unchallenged by cross-examination, it was not uncontested (contrary to the second respondent's submission); there was a significant body of evidence which contradicted it.
First, there was the evidence of Professor Sonnabend in the joint report, and the concurrence with it of Dr Duke, referred to above. Secondly, Dr Duckworth considered that by the time he saw Ms Makaroff in February 2011, based on the 3 February 2011 ultrasound, it would be very difficult to repair the shoulder, and that it would best be treated conservatively.
Moreover, as the trial judge noted, in his original report dated 3 August 2018 Professor Murrell had expressed the opinion that based on a report of an ultrasound on 11 August 2011, it was likely that her shoulder would have been very difficult if not impossible to repair using standard arthroscopic techniques: "22. I have read the report of the ultrasound of 11 August 2011 and note that it reports that the tendons are retracted and that no tendon fibres could be seen. If we take this ultrasound at face value it means that if the patient came to surgery around that time it would be very difficult, if not impossible, to repair that tendon using standard arthroscopic techniques, i.e. it is highly likely that it would be irreparable. 23. Given the above, and the state of play for rotator cuff surgery at the time, even if she had been placed on a public hospital waiting list immediately after her initial injury (dislocation), it is likely that when her case came up, the repair would have been irreparable using standard arthroscopic techniques irrespective". Professor Murrell was not asked to explain the apparent change in his opinion.
Questions of procedural fairness can arise if evidence is adduced from a later witness in contradiction of an earlier witness, when the earlier witness has not been afforded an opportunity to deal with it. They do not arise when the contradictory evidence is already known. Here, the evidence that contradicted Professor Murrell had already been adduced. While in those circumstances the absence of challenge by cross-examination can go to its weight, no question of denial of procedural fairness arises.
Here, her Honour had a number of differing expert opinions on the topic. The majority favoured the view that the shoulder had become inoperable. Professor Murrell alone was to the contrary. His opinion had apparently and inexplicably changed from his original report. And as her Honour noted, his opinion was not subjected to the scrutiny of the other experts. In those circumstances, there was no error in her Honour's conclusion that, on the balance of probabilities, Ms Makaroff's shoulder had become inoperable.

[38]

The no causation finding

The applicable test for causation is provided by CLA, s 5D, which 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.
As stated in CLA, s 5E, a plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. In order to succeed, a plaintiff must show that it is more probable than not that, but for the breach, "particular harm" would not have been suffered. [15]
Ms Makaroff's shoulder had been injured in her horse accident before she was admitted to the hospital, and possibly aggravated by some later act in November. However, it might have been remediated, or ameliorated, by timely surgery. What Ms Makaroff lost was the opportunity of a better outcome. In a claim in negligence arising from personal injury, the loss of a chance of a better medical outcome is not compensable damage, unless the better outcome is the probable result. [16] Thus Ms Makaroff bore the onus of proving, on the balance of probabilities, that but for the Hospital's failure to advise her that it was imperative and urgent that she have an orthopaedic consultation, she would not have been left with a permanently injured shoulder, at least to the extent that she was. The question must be whether, properly advised that it was imperative that she have an orthopaedic consultation urgently, Ms Makaroff's shoulder injury would more probably than not have been ameliorated by remedial surgery, before it became inoperable - which is to say before about the end of January 2011, as it was on the basis of the ultrasound of 3 February 2011 that Dr Duckworth reported that it would be very difficult to repair the shoulder.
Ms Makaroff's case at its highest in this respect is conveniently articulated in a report of Professor Sonnabend of 22 August 2012: "If an appropriate Orthopaedic follow-up consultation had taken place, I believe it is almost certain that a significant rotator cuff injury would have been identified. The likely recommended approach would have been further imaging, either ultrasound or MRI, as a matter of relative urgency. Assuming Ms Makaroff's shoulder was normal prior to the dislocation, if the rotator cuff had been repaired (presumably including supraspinatus, infraspinatus and biceps tendons and possibly subscapularis tendon), then Ms Makaroff might ultimately have expected to regain near normal shoulder function. This would however have committed her to a period of six weeks or so of sling immobilisation, and several months of subsequent physiotherapy and rehabilitation, during which time she would not have been able to undertake the relatively strenuous physical activities involved in horse-care. The end result would in all probability have been a comfortable shoulder with a good but not quite full range of movement, and good but not quite normal strength."
However, it needs to be realised that there are multiple events in this chain, some of which tended to be conflated in submissions: first, properly advised that it was imperative that she have an orthopaedic consultation urgently, would she have had that consultation, and if so when; secondly, what would have been the outcome of that consultation, and in particular what advice would she have received as to surgery; thirdly, what action would she have taken upon that advice, and in particular would she have agreed to undergo surgery; fourthly, if so, when would she have come to surgery and would her shoulder have been operable at that time; and fifthly, would the surgery have resolved her injuries at all, and if so to what extent.
Some of those events were within Ms Makaroff's control, and some were not. Questions which involve determination of what Ms Makaroff would have done must be judged subjectively in the light of all the relevant circumstances, but without the benefit of evidence from Ms Makaroff as to what she would have done, save insofar as it is against interest. [17] That involves a speculative assessment as to what Ms Makaroff would probably have done, informed by what can be supposed from her own behaviour. The fact that the judgment is ultimately a subjective one does not, however, in my opinion, mean that some resort to how humans behave generally is prohibited; but it does mean that the question is what she would have done, not what a reasonable person would have done.
Her Honour's finding adverse to Ms Makaroff in respect of causation had two components: first, that it was unlikely that, properly advised to have an urgent orthopaedic consultation, she would have elected to undergo the operation; and secondly, that even if she had agreed to undergo surgery immediately, she would as a public patient probably not have been operated on until at least November 2011, by which time her shoulder was beyond repair. If either of those findings is sustained, the chain of causation is broken. Even if they are not, it is still necessary to consider whether, having regard to both of them in combination with all the other events which had to resolve in Ms Makaroff's favour if she were to have successful shoulder surgery, it can be said that it has been proved that, properly advised that it was imperative that she have an orthopaedic consultation urgently, it was more probable than not that her shoulder injury would have been ameliorated by remedial surgery, conducted before about the end of January 2011.
There was some dispute as to whether the Further Amended Notice of Appeal sufficiently challenged the first of those findings; however, it was addressed in the written submissions, and argument in this court proceeded on the basis that this issue was before the Court.
Because the prospects of a successful outcome are significant to consideration of several of the preceding steps, it is convenient to address first the last of the five steps identified above.

[39]

Would the surgery, if undertaken, have resolved her injuries?

The second respondent submitted that "One of the difficulties is that the orthopaedic experts also deal with the question of outcomes in relation to rotator cuff repair. Dr Sonnabend identifies that there may be as high as a 30% failure rate and there is some question about the utility of repairs in certain significant tear settings about whether the repair actually delivers a measurable outcome for the patient. So it's an elective surgical procedure with some concerns about the certainty of outcome".
In answer to question 7 in the joint conclave report, Professor Sonnabend said that if the shoulder was normal until September 2010, an operation within three months would almost certainly have resulted in an excellent shoulder, but the chances of success would have reduced rapidly with the further passage of time. Dr Duke agreed, although Dr Cummine and Professor Murrell were unable to say. In answer to question 12, Professor Sonnabend, Professor Murrell, Dr Cummine and Dr Duke all expressed the view that on balance, as at 28 September 2010, and as at 14 October 2010, and probably still as at 9 December 2010, Ms Makaroff's shoulder would have been amenable to surgical repair, with the likelihood of a good result.
In oral evidence, Professor Sonnabend was asked as to the failure rate, and answered: "It again comes to the question of how you define failure. If you define failure as an MRI, an ultrasound showing that a small tear had recurred, the failure rate is probably about 30%. If you define failure as showing that the original tear had recurred, the failure rate is close to 0. Well, that's not true, it's - it's - it's under 5%. If you define failure as failure to relieve pain, then depending on which series you look at, the failure rate is under 5%. The success rate in terms of patient satisfaction, that was what percentage of patients are satisfied with the outcome, is of the order of 95 to 97% in numerous series. I know Professor Murrell has published a series of close to 2000 cases. For what it's worth, much earlier I'd published a series of 800 odd cases. The results of every comparable patient satisfaction is around 95 to 97%. The cuff integrity is around 70%. Total loss of repair is around the 5 to 7% mark of those that can be repaired as a primary procedure without any augmentation or unusual methodology."
When Professor Sonnabend's reference to 30% is seen in that context, it does not support the submission that the failure rate was 30%. Dr Duke gave evidence, from which no other expert appears to have dissented, that there was a failure rate of between 5 and 10%, depending on the surgeon and the circumstances. That is consistent with the evidence of Dr Sonnabend referred to in the preceding paragraph.
There is a very high degree of probability that had Ms Makaroff come to surgery before the end of January 2011, the result would have been good and would in all probability have been a comfortable shoulder with a good but not quite full range of movement, and good but not quite normal strength. However, the slight possibility of failure increases, the later the operation was performed. A competent treating practitioner would know this, and factor it into any recommendation as to the timing of surgery.

[40]

Would Ms Makaroff have had an orthopaedic consultation, properly advised that it was imperative that she do so urgently, and if so when?

The respondents submitted that even if Ms Makaroff had been advised that it was essential and urgent that she consult an orthopaedic surgeon, she would not have done so, given the cost and her strained financial circumstances.
The evidence was that there was no outpatients orthopaedic clinic at either of the public hospitals which serviced the region in which Ms Makaroff resided, nor any orthopaedic surgeons who bulk-billed, the less than satisfactory consequence being that patients in that area had no access to orthopaedic services (other than surgery, which was conducted in the public hospitals) unless they could afford to pay for them.
Although Ms Makaroff contacted Dr New's rooms shortly after being discharged from hospital, she was deterred by the cost of $200. It is also clear that her ongoing resistance to Dr Percy's firm advice that her shoulder would be better managed by an orthopaedic specialist and that she should proceed with the referral was significantly influenced by considerations of cost. However, in cross-examination by counsel for the Hospital, while Ms Makaroff agreed that by September 2010 she was "cash strapped", and that spending as much as $200 was a very significant matter, she also explained that she had raised the funds to enable her to consult Dr Duckworth: "Q. You wouldn't have spent a sum of $200 in September 2010 unless you absolutely had to, correct? A. Well, if it was necessary, I would have found it and - yes, I would have - like I did when I have to go to the specialist, I - I - actually, a friend lent me the money. Q. Which specialist are you talking about? A. Dr Duckworth, after the ultrasound. I borrowed the $200 to go. Q. From a friend. A. Yes. Q. Because you didn't have it yourself. A. No, I didn't have that cash myself, no. Q. And would you have had to borrow it to go and see Dr New? A. Yes, that's what I've been - I rang and - "
In cross-examination by counsel for Dr Percy, she explained that had she known it was urgent, she would have borrowed the money in October 2010 - as she did the following February: "Q. You didn't want to go and see a specialist because you didn't have the money to pay for one. Correct? A. I didn't have - I didn't have the money. Correct. Q. You didn't want to see a specialist because if you saw one, you understood you'd have to pay for the consultation. Correct? A. I was going on advice. If I'd known it was urgent, I would have borrowed the money. I would have found a way. Q. Ms Makaroff, could you please answer my questions and stop giving your preferred position from the witness box. As at 14 October 2010 you did not want to see an orthopaedic specialist because you did not want to have to pay for the services of an orthopaedic specialist. A. I disagree. Q. You disagree? A. Mm-hmm. HER HONOUR: Q. Yes, you disagree? A. Yes, I disagree."
It is not readily to be concluded that a patient, properly advised that it was imperative that she have an urgent consultation, would disregard that advice. It is notable that, even with the less firm advice that she was given, Ms Makaroff nonetheless made contact with Dr New's rooms. She also diligently attended plastics follow-ups at the Hospital as advised, and continued to consult her general practitioner. She was not indifferent to her health care. Plainly she did not want to incur cost if she did not have to, but the reason she did not pursue an orthopaedic consultation in October 2010 was that she did not understand it to be essential and urgent. Had it been conveyed to her that this was no mere routine follow-up, but an essential and urgent step to be taken because she might have a serious injury, there is a high degree of probability that she would have done so.

[41]

What would have been the outcome of the hypothetical consultation?

For Ms Makaroff, it was submitted that she would have been advised that she needed to have surgery, and quickly or in a timely way. Her Honour did not expressly address what advice Ms Makaroff would have been given by a competent orthopaedic specialist, had she consulted one in the appropriate time frame, as at October 2010, but appears to have assumed that, with further imaging, a significant rotator cuff tear would have been identified and surgery would have been recommended.
As to the hypothetical consultation, as indicated in the passage extracted above, [18] Professor Sonnabend's view was that the likely recommended approach would have been further imaging, either ultrasound or MRI, as a matter of relative urgency. Professor Sonnabend agreed that when making a decision about whether to recommend surgery, a patient-specific assessment is made of the nature of the tear, and of the patient's function, symptoms, social circumstances, and age. Asked whether - assuming that, conformably with Ms Makaroff's trajectory as noted by Dr Percy, when seen between three and a half and five and half weeks after primary dislocation, there had been a reduction in swelling; the bruising had remitted; the shoulder had gone from being painful to much more comfortable and mobile, though there was still some sleep disturbance through pain; abduction had improved from about 40 degrees to about 180 degrees, though it was uncomfortable from 130 degrees; and forward rotation had increased from 20 degrees to 160 degrees, with some slight discomfort from about 90 degrees - he would be slow to recommend surgery, but would wait and see how the patient progressed, he answered "No, I would not", explaining that while some symptoms (of swelling and bruising) would resolve with the passage of time, there was still an underlying problem; and only if power was relatively intact would he have no further concern. If there was some but less than intact power, he would obtain further investigations to ascertain the extent of the tear; if there was a large or massive tear, then there would be no point in delaying, and the earlier it could be repaired the better.
Dr Duke said that on those assumptions, he would send the patient for further imaging in order to gain additional information.
Dr Cummine, on the other hand, said that on the same assumptions, he would be unlikely to recommend surgery: there may have been a small tear, but in a 60 year-old woman with that level of function, "I'd be prepared to sit. And once you know her other circumstances, I can't see the point in investigating". Although the "other circumstances" to which he referred included her not having acted on the suggestion that she see an orthopaedic surgeon, nor having proceeded to have an ultrasound when referred by Dr Percy for one, which emerged later and thus, as he appeared to acknowledge, might not be relevant to what prudent practice required, he added: "WITNESS CUMMINE: … So to push that woman towards surgery with maybe a technically good result but a dubious clinical result - because people lose strength with major rotator cuff repairs. It doesn't bring you back to when you were 20 or when you were 30 again, and you're lucky to get back to where you were prior to the initial injury that tore the rotator cuff. DOWNING: So in those circumstances at three and a half and five and a half weeks, you wouldn't be recommending surgery at that point? WITNESS CUMMINE: Not with that range of motion and other - the other factors improving, which they are. She had some pain, but they were improving. No, I would be quite happy to say, "Sit quietly.""
The extant imaging which would have been available to an orthopaedic surgeon consulted by Ms Makaroff in early to mid-October 2010 comprised two x-rays performed on 19 September 2010 for Hawkesbury Hospital, pre- and post-reduction, the first of which stated "There is anterior dislocation of the humeral head with no obvious associated fracture. No significant bony injury is seen in the humerus or around the elbow. The radius and ulna are intact"; and the second of which reported "The humeral head is satisfactorily enlocated. No fracture has been identified around the shoulder and in particular, the glenoid margin is intact"; and more relevantly the x-ray of the right shoulder performed in the Hospital on 19 September 2010, which referred to "moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency". The last of these was suggestive of rotator cuff injury, but inconclusive; hence the requirement for further imaging by ultrasound or MRI before a decision was made. That, coupled with the evidence of Professor Sonnabend and Dr Duke, suggests that reasonably prudent orthopaedic surgeons would have referred her for ultrasound or MRI, with a degree of urgency because of the decreasing prospects of surgical success as time passed. Insofar as Dr Cummine said that given her other circumstances, there was no point in investigations, I cannot accept that that reflects prudent practice.
Some indication of what Ms Makaroff would have done had she been referred for ultrasound at that point is provided by what she in fact did when Dr Percy gave her a referral for ultrasound of the right shoulder on 9 December 2010. On 24 January 2011, Dr Percy recorded "still hasn't had shoulder ultrasound and now can't find ultrasound request, new request posted for ultrasound of shoulder". She ultimately attended for an ultrasound on 3 February 2011, some 56 days after she was given the referral. While a delay of nearly two months might not be lengthy or significant in another context, this occurred in the context of some months of trouble with her shoulder, and relatively close in time to when, hypothetically, she would have been given a referral by an orthopaedic surgeon for further imaging. It thus provides some indication of how expeditiously she might have acted on a referral by an orthopaedic surgeon for imagery only a couple of months earlier. However, it was over the summer vacation, and she attended for ultrasound within ten days after requesting the replacement referral. Had she been referred by an orthopaedic surgeon for urgent imaging in early October 2010, she would probably have acted on that referral, but possibly not for several weeks. However, informed by a specialist's advice that it was urgent, she might well have acted more quickly; and although the trial judge supposed that it would be more difficult to obtain an appointment in the month or two before the end of the year, that would likely be less difficult than during the summer vacation period from mid-December to late January. It is highly probable that properly advised by an orthopaedic specialist in early October 2010 that it was imperative that she do so urgently, Ms Makaroff would have had an ultrasound, if not by the end of October 2010, then within a further couple of weeks.
As to what would have been revealed by further imaging conducted with a reasonable degree of urgency after the hypothetical consultation in or about October 2010, Professor Sonnabend was of the view, based on the dislocated shoulder and subsequent pathology, that Ms Makaroff had likely suffered an extensive tear of the rotator cuff as a result of the dislocation on 19 September 2010. As noted above, he said "I believe it is almost certain that a significant rotator cuff injury would have been identified". Dr Duke agreed. Dr Cummine and Dr Fernando considered that the extent of the tear at that time was unknown and could not now be determined. Professor Murrell thought it likely that she had torn her rotator cuff on 19 September 2010 and aggravated it on 11 November 2010; and that if an ultrasound or MRI had been performed between those dates, it would likely have shown a full-thickness rotator cuff tear. The balance of opinion was thus that the injury may have been aggravated in early November 2010, but that it was likely that an extensive tear was suffered at the first injury, though it may have been enlarged as a result of the 11 November 2010 incident. Her Honour concluded that it was 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; but alternatively that if the full-thickness rotator cuff tear had occurred during the initial dislocation, it was extended and enlarged between those two consultations.
The expert evidence was that, regardless of whether there was an aggravation on or about 11 November, had imaging been undertaken promptly after a consultation in early to mid-October 2010, a significant rotator cuff tear would have been identified. The evidence of Professor Sonnabend, Dr Duke and Professor Murrell support that conclusion. No witness supports the view that only a minor tear would have been identified, although Dr Cummine and Dr Fernando were non-committal as to the extent of the tear that would then have been apparent.
Professor Murrell said if a full-thickness rotator cuff tear had been identified, most shoulder surgeons, himself included, would have recommended a rotator cuff repair operation. In the course of the joint expert evidence, Professor Sonnabend at first said that a patient over the age of 40 with a primary dislocation which involved a rotator cuff tear "will come to surgery". Dr Duke said that for patients under 25, as the rate of re-dislocation was high, "the patient should be given the opportunity to have a simple, almost risk-free operation"; whereas for those over 40, "the patient should be advised that a repair is an option, and the pluses and minuses of the repair put to the patient, to allow them to make the decision in an informed manner". Dr Duke agreed that the discussion with the patient would include the potential advantages of reduction of pain and a significant return of strength; but also the risks including standard risks of surgery such as infection and poor outcome (there being a failure rate of 5% to 10%, depending on the surgeon and the circumstances), and also that this surgery would involve a prolonged post-operative period of impaired function of the arm, including six weeks convalescence in a sling or splint, followed by a lengthy period of rehabilitation. Professor Sonnabend agreed, and modified his earlier statement that all patients over 40 with rotator cuff tear would come to surgery, to say that a large proportion - close to 50% - would do so, depending on the size of the tear and the degree of weakness. Ms Makaroff had, on relevant assumptions, a significantly large tear.
Accordingly, had Ms Makaroff consulted an orthopaedic surgeon in early to mid-October 2010, a reasonably prudent orthopaedic surgeon would have referred her for further imaging, on a reasonably urgent basis. If so referred, Ms Makaroff would probably have had an ultrasound if not by the end of October 2010, then at least by mid November. An ultrasound before 11 November 2010 would probably have revealed a significant rotator cuff tear, and one after 11 November would certainly have done so, and a reasonably prudent orthopaedic specialist would have recommended surgical repair. In recommending surgery, the surgeon would explain that the operation enjoyed a very high rate of success and patient satisfaction and low risk, and offered the prospect of significantly restored function and reduced pain, but involved, as well as the usual risks of surgery and a 5 to 10% chance of failure, a prolonged post-operative period of convalescence and impaired function, and that if she were to have the operation it would have to be within a month or two, as otherwise the shoulder might well become inoperable.

[42]

Would Ms Makaroff have agreed to surgery?

I have found this question, which involves not much more than informed speculation as to what Ms Makaroff would have done, the most difficult. Her Honour found that it was unlikely that Ms Makaroff would have elected to undergo the operation, referring to the fact that she had no one to care for her horses and cats while in hospital and for the lengthy period of convalescence. The respondents pointed in addition to evidence suggesting that she was disinclined to act, expeditiously if at all, upon medical referrals.
Many years before, Ms Makaroff had delayed for about nine months in acting on a referral from Dr Percy to a Dr Gregory Don for a colonoscopy in March 1995. [19] However, it was accepted that this was a referral for routine examination, with no suggestion of any abnormality or other indication for urgency.
Reference has already been made to her having taken 56 days to obtain an ultrasound of her shoulder after Dr Percy gave her a referral on 9 December 2010. However, as has been noted, that was over the summer vacation period, and she had lost the referral; she attended for ultrasound within ten days of requesting the replacement referral.
On 11 November 2010, concurrently with addressing her shoulder injury, Dr Percy recorded that Ms Makaroff was depressed and on Zoloft, and suggested psychological counselling; a mental health care plan was created, including a referral to Patricia Santosi, psychologist. Some five months later she had not attended, informing Dr Percy that she "Still prefers not to take antidepressants but also still hasn't been to see Patricia Santosi counselling on mental health care plan (given on 11.11.10) - prefers to use Temazepam to help sleep and anxiety at night …".
When Dr Duckworth saw her in February 2011, he referred her for physiotherapy, but she had not acted on that referral by 5 April 2011.
In 2016, an orthopaedic surgeon recommended that she have a right knee replacement, at a time when she was living in a horse float on property at Vacy. The surgery was scheduled. However, Ms Makaroff did not proceed with it: she gave evidence that the mother of a 'celebrity doctor' who was one of the owners of the Vacy property told her that she could not have the surgery as there was no one else to look after the horses, and in any event she thought this doctor (to whom she did not personally speak) did not think she needed the surgery. This was referred to by her Honour in the context of discussing Ms Makaroff's credibility, as her Honour found this evidence 'ridiculous'. It casts some light on her attitude to recommendations for surgery, and the potential significance of her responsibilities for her horses; but it was some six years after the relevant events.
On the other hand, there are other aspects of her history which point the other way. On 12 February 1996, she was given a referral to a Dr Paul for a pap smear, and on 16 March 1996, was "going to have D&C", which would be consistent with having acted on the referral to Dr Paul. On 20 May 1996, she was referred to Dr Charles Sharpe, plastic surgeon, and on 2 August 1996, "ha[d] seen Dr Charles Sharpe". Nor was she a stranger to surgery: as has been noted, on 19 September 2010 she had her shoulder reduced under anaesthetic at Hawkesbury Hospital, and she had plastic surgery at the Hospital. Moreover, she underwent heart bypass surgery on 8 August 2013, following a diagnosis of cardiovascular disease. In other words, she does not appear to have hesitated to have surgery when it was required.
As to whether she would have subordinated her own welfare to those of her animals, the following was put to her: "Q. Just on that, it's the case, isn't it, that you've really prioritised their welfare even over your own? A. No, because if I'm not here, they - they're not here. They're not looked after, so my health is utmost to me, especially seeing my family die young. Health is really everything."
She did say that she thought certain advice which she attributed to Dr Percy - that she should cease to keep horses - was offensive and "a terrible thing to say to someone", and acceded to the suggestion that she considered it something of a judgment on her that he was not in a position to make. In addition, when being questioned about the vigour with which she performed certain physiotherapy exercises (called 'J exercises'), she gave this evidence (which was not accepted by the trial judge): "Q. Did you tell him [the physiotherapist Mr Fogarty] 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 - … Q. To push through the pain barrier? A. Yeah, he said I had to and he said most people sort of don't because it's painful and that I did - and I though being the person I am and loving my horses, I was going to do whatever it took to get this arm better, so I really worked hard on them."
Reference has already been made to her having ultimately declined knee surgery in 2016, after it was scheduled, at least partly because there was no one to care for the horses in her absence.
Whether Ms Makaroff would have elected to have had surgery to repair her rotator cuff if she had been offered it in or about late October 2010 involves a determination of what Ms Makaroff would have done, and is to be resolved subjectively, having regard to all the circumstances. Overall, Ms Makaroff's quite extensive medical history shows her to have been proactive in seeking medical advice and treatment, indicative of a significant degree of care and attention to her own health and welfare. The inaction in respect of the non-critical referral for a colonoscopy, and for psychological counselling, is of limited relevance. In particular, in respect of her shoulder injury, she made contact with Dr New's rooms; she attended outpatients clinics at the hospital; and she regularly consulted Dr Percy over several months. While she was resistant to Dr Percy's firm suggestions that her shoulder would be better managed by an orthopaedic specialist, that was influenced by cost, in circumstances where the imperative nature of an orthopaedic consultation had not been brought home to her. While she did not have an ultrasound until 3 February 2011 following a referral on 9 December 2010, that was in the context of the summer vacation and having lost the referral; she attended quite promptly after it was replaced. While a recommendation for shoulder surgery would not have been unequivocal, it would have been presented as a relatively attractive option with excellent prospects of a satisfactory outcome in terms of alleviating her pain and regaining functionality, and only slight risks, but the detriments of a lengthy period of convalescence. The good success rate enjoyed by the surgical procedure would have weighed in favour of a decision to have it. The desire to preserve her capacity to work with horses in the future, which would have been compromised if her shoulder were not repaired, might also have incentivised her to have the surgery. Against that, she would also have taken into account that in the short term surgery would have involved a prolonged post-operative period of impaired function of the arm. As to that, the need to make alternative arrangements for the care of her horses would have been a consideration given the lengthy period of convalescence during which she would have been incapable of attending to her horses. However, this did not stop her having the heart surgery in 2013 (closer to the relevant time and conditions than her 2016 cancellation of knee surgery). The need to care for her horses weighed on both sides of the scale: while in the short term it was a problem if she had surgery, it would be a problem in the long term if she did not.
While the matters to which I have referred do not permit certainty, or anything approaching it, as to what Ms Makaroff's decision would have been, it should not readily be accepted that a patient, faced with an ongoing shoulder problem and a recommendation for surgery with very good prospects of a satisfactory outcome if it were performed quickly, would decline to have surgery, especially given that she was no stranger to surgery. In my view, the probability is that given a recommendation by an orthopaedic specialist for shoulder surgery, and advice that such surgery had excellent prospects of success and little risk if it were not performed within a month or two, but otherwise her shoulder would deteriorate and become inoperable, she would have agreed to surgery, notwithstanding the short term impact on her ability to care for her animals, since the long term impact would be still worse.

[43]

When would she have come to surgery and would her shoulder have been operable?

The chief basis for the trial judge's conclusion in respect of causation was her Honour's finding that Ms Makaroff would not have come to surgery before about November 2011, by which time her shoulder was inoperable. Above, I have rejected the respondents' challenge to her Honour's conclusion that the shoulder was inoperable by November 2011, if not earlier. The conclusion essentially depended on the view that the surgery would have been classified as elective, clinical priority category three, for which there was a twelve month waiting list, and in any event would not have been performed over the period from December to January when elective public surgery was not performed. Her Honour reasoned as follows: "[428] Had the plaintiff elected to undergo the operation, which I accept would have been unlikely, given that she had no one to care for her horses and cats, she would have been placed on the public waiting list. The evidence of Dr Cummine and Professor Murrell is that the plaintiff would have been categorised CPC3, so that she would have been waiting for surgery for about one year, or perhaps slightly longer. Professor Sonnabend and Dr Duke say that she would have been brought to surgery somewhat faster, with Professor Sonnabend suggesting surgery within about three months, although I think his estimate is due to his influential position as set out below. [429] It is common ground that all public hospitals shut down their public lists from about mid-December through to early February for elective procedures, so the plaintiff would not have been operated on during that period (T 593.32; T 595.17). [430] It then becomes a question of whether the orthopaedic surgeon involved, possibly Dr Duckworth, would have pursued and succeeded in taking steps to operate on the plaintiff on before the Christmas shut down. There is a significant dispute on the evidence as to what would have then occurred. Professor Sonnabend suggests that he would simply have ensured that surgery occur by effectively cajoling and threatening medical and administrative staff (T 594.37). However, he acknowledged that he could not speak for what would have occurred at Nepean Hospital. Professor Murrell and Dr Cummine gave evidence that the plaintiff would not have been operated on before Christmas at Nepean Hospital. Professor Murrell was of the view that there was no reason why an ordinary rotator cuff repair could not be done in February 2011, so that there was simply no reason to push the plaintiff higher up the list as at November 2010. On the other hand, Dr Cummine was of the view that without the pull of a professor such as Professor Sonnabend, there was "Buckley's chance" of promoting a patient like the plaintiff up the list, noting that for every patient promoted, another one must be demoted. [431] It is unlikely that the plaintiff would have come under the care of Professor Sonnabend, or someone with his view and clout concerning the need for urgent surgery at Nepean Hospital in September 2010. Dr Duckworth was of the view that even as at February 2011, no surgery was possible. [432] For these reasons, on the question of when the plaintiff's shoulder would have been realistically scheduled for surgery, I prefer the evidence of Professor Murrell and Drs Cummine, Duckworth and Khalid to that of Professor Sonnabend and Dr Duke. It is my view that it is most likely on the balance of probabilities that the plaintiff would not have come to surgery prior to Christmas 2010. She would have been assigned CPC3, which allows for one year's wait for the operation, which in this case would not have been until November 2011. Professor Sonnabend acknowledged that if the surgery had been performed in about February 2011, assuming it was capable of being performed at all, the outcome would not have been as good as if it had occurred closer to the injury. The plaintiff may have obtained some pain relief, but she would have achieved a limited return of function (T 598.22). I acknowledge that Professor Sonnabend's view as to the result of the operation is at odds with that of Professor Murrell, as discussed in relation to the previous heading. [433] For these reasons, I am not satisfied that the plaintiff has proved on the balance of probabilities that but for the defendants' alleged negligence, she would not have suffered the ongoing injury to her shoulder. As outlined above, it 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. The plaintiff has therefore failed to prove that the defendants' negligence was a necessary condition of the harm. This part of her case fails."
The appellant submitted that there was a way for her to have surgery within the requisite timeframe, and that the finding that she could not come to surgery until it was no longer viable should not be accepted. It was submitted that "in circumstances where there was evidence that something could be done for her and that she wanted something done for her because it related directly to her capacity to care for the loved animals, then she would have certainly taken whatever steps were available for that to occur and no doubt would have followed whatever advice and circumstance that might be allowed to occur".
Although it was suggested that she could have taken steps to raise funds, or implored the doctor to treat her as a private patient, she was already under enormous financial stress, and the prospect of Ms Makaroff coming to surgery other than as a public patient was at best a remote one. As her Honour explained, given where Ms Makaroff resided, had she consulted an orthopaedic surgeon (as she did in February 2011), it would likely have been a practitioner with visiting rights at Nepean Hospital. There was uncontradicted evidence that as at September 2010, there was a lengthy public waiting list for elective surgery; that rotator cuff repair surgery was usually allocated Clinical Priority Category 3 ("CPC3"), which meant that surgery should be performed within 365 days; and that at Nepean in 2010, public patients would generally have to wait at least the full 365 days for an operation.
The proposition that a patient whose condition would become inoperable if not operated upon expeditiously would be treated as an elective case and left on a twelve month waiting list until it became inoperable is a most unattractive one and requires scrutiny.
Mr Downing submitted that all of the evidence was that a rotator cuff repair was a CPC3 elective procedure. That submission incorrectly assumes that the category is inflexibly determined by the nature of the procedure, uninfluenced by the referring doctor's assessment. The relevant evidence was given by Dr Khatib, director of orthopaedic training at Nepean Hospital. Having explained that it is the referring doctor who specifies the clinical priority category, he said that that rotator cuff repairs were (emphasis added) "typically categorised as having clinical priority category 3", meaning that admission for surgery was intended to occur within 365 days. From inquiries of his colleague Dr Kuo, who performed orthopaedic (including shoulder) surgery at Nepean Hospital over the relevant period, he said that as at September 2010, patients waiting for orthopaedic surgical procedures, including rotator cuff repairs, which were CPC3, typically waited the full 365 days, or even slightly longer.
Notably, Dr Khatib's evidence was that such patients were typically categorised, not always categorised, as CPC3. It was the referring doctor who specified the category, and he did not say that a rotator cuff repair could not be allocated a higher priority by the referring doctor if it were urgent.
On the assumption that Ms Makaroff would be treated as a public patient, the joint conclave reported that, as at 2010, Professor Sonnabend would have operated on her within three months; Dr Cummine would have operated within six to twelve months; while Professor Murrell would have put her on his standard (public) waiting list, which is twelve months. Dr Duke agreed with Professor Sonnabend and disagreed with Professor Murrell.
Professor Sonnabend's reasoning was: "The great - the great majority of rotator cuff repairs is only for pain; they're small tears; they're decompressed and repaired and sent home the same day and that's that. This lady had a massive tear; there was some urgency to doing it because the longer you wait, the less satisfactory the results are going to be."
Professor Sonnabend explained that for a patient with a massive rotator cuff tear, the surgeon has the capacity to promote their priority; that this would be appropriate in Ms Makaroff's case if there was a massive rotator cuff tear; and that it would be inappropriate and negligent to leave a massive rotator cuff tear on a waiting list for 365 days: "DOWNING: But would you agree with this; that on any given year there are a significant number of people waiting for operations on the public list? WITNESS SONNABEND: Yes, absolutely. DOWNING: It's not been the situation in New South Wales for many years that we have empty waiting lists and doctors waiting for people to turn up to have their surgery? WITNESS SONNABEND: Not in my working lifetime. DOWNING: You'll see Dr Khatib in his statement quotes Dr Quo who was working at Nepean in 2010 as saying at that point his recollection is that there was patients waiting for surgery - this is paragraph 14 - 'Waiting for orthopaedic surgical procedures such as rotator cuff repairs which were category B typically waiting the full 365 days or even slightly longer.' To some degree, who you can squeeze in depends on who's already in the list, doesn't it? WITNESS SONNABEND: There - there's not - it's not a yes or no answer. DOWNING: Is it a 'it depends' answer? WITNESS SONNABEND: It doesn't depend on whom you can squeeze in. It just depends on that and on the severity or the urgency of their condition so that, for - for example - and if someone has got a malignancy, it doesn't matter whether you have to cancel someone with a massive rotator cuff, they'll get in ahead of it. But the - while I accept that the great majority of rotator cuff repairs should go on a waiting list category 3 or category C, depending on which setting you use, and that's usually to be done with 365 days. And I recognise in the public sector, that's often more than 365 days. Somebody with a massive rotator cuff tear, the surgeon has the discretion, if you like, or the ability to - to promote them up the waiting list to put them in a more urgent category, which would be appropriate in this - if there were a massive rotator cuff tear would be appropriate. It would be inappropriate to leave a massive rotator cuff tear on a waiting list for 365 days. That to my mind would be negligent and inappropriate. DOWNING: I've taken you already to the nights of 14 October and 28 October. In terms of where you would categorise someone, I mean, might it be the case though that if you saw between three and a half and five and a half weeks there seemed to be some functional improvement and some lessening in pain, that might influence the category that you would assign to the patient? WITNESS SONNABEND: No, I would be - it would not change. It would depend on the size of the tear on the ultrasound or MRI. DOWNING: But at the end of the day, the waiting list is a zero sum game, isn't it? WITNESS SONNABEND: Correct. FINNANE: It's what? DOWNING: A zero sum game. WITNESS SONNABEND: There's only so many cases you can put through it. DOWNING: Every patient you bump to the top means someone else waits longer. WITNESS SONNABEND: Sure. DOWNING: So that in making that assessment about what you're going to do for a patient, you have to consider who you're pushing down the list. WITNESS SONNABEND: You do that every day of your working life, yes. DOWNING: So you say-- HER HONOUR: Sorry, you haven't finished with the topic, okay. DOWNING: You say, don't you, that you would propose if you'd seen this patient as at late 2010, surgery within three months? WITNESS SONNABEND: Correct."
Dr Cummine gave the following evidence: "DOWNING: Dr Cummine, you've expressed a view about this in the joint report. Assuming that the patient came to you with the injury that she had in September 2010 - and again noting the symptoms that are described in the GP's notes - what's your view as to the likely clinical priority code that she would be assigned? WITNESS CUMMINE: Three. DOWNING: And why's that? WITNESS CUMMINE: For all the reasons that she is in three I think. Yeah, it - it's not an emergency procedure. I hear the opinions of both Professor Sonnabend and also Dr Duke, and there is definitely a case that can be made for that. I think in New South Wales, a further factor that should not be lost sight of is we're now in November; the public hospital system in New South Wales usually closes mid‑December and does not open till end of January for elective procedures. DOWNING: So that is, what, in public hospitals across the State-- WITNESS CUMMINE: It's certainly-- DOWNING: --there's a time at which-- WITNESS CUMMINE: It's certainly Westmead and Liverpool and a number of other hospitals in the west, and my understanding is it applies also to North Shore, because these are budgetary measures. And it's been present at Westmead for my practicing life after about 1984, '85. HER HONOUR: Are you practicing now, or have you retired? WITNESS CUMMINE: I've retired from clinical practice, I'm just doing medico legal, yep. I ceased in 2009. And so that was a major issue. Anybody coming in with a less than category 1 or category 2 to try and get that person on as a semi‑urgent, if they were in November moving into December, no chance. DOWNING: Professor Sonnabend-- WITNESS CUMMINE: Earliest would be - sorry. DOWNING: I didn't mean to cut you off. WITNESS CUMMINE: Earliest would be end of January."
Dr Cummine acknowledged that perhaps influential professors like Professor Sonnabend might be able to get someone like Ms Makaroff to surgery before Christmas, but that the average surgeon would have "Buckley's" of doing so. The burden of his evidence was thus that while some might be able to achieve it earlier, if categorised CPC3 Ms Makaroff would not likely have come to surgery before late January 2011. However, it was implicit in his evidence that with a higher priority, she could have come to surgery before Christmas.
Professor Murrell's reasoning was that he saw no need to promote Ms Makaroff's priority as the passage of time did not matter much, and an operation could still be performed, even today. He gave the following evidence: "Q. And if the patient was to be treated within the public system, what category would you allocate to a full thickness tear such as can be seen on 3 February ultrasound? A. So it would be a category 3. A standard 12 month wait category. Q. In the course of the conclave is was suggested, I think, by Dr Duke that placing the plaintiff on a 12 month waiting list would be if not professional negligence something close to it because by the time the 12 month period had elapsed, the plaintiff's shoulder would've become inoperable. Do you have a view about that? A. Well, in my experience, pretty much all the rotator cuff repairs I do in the public system have waited 12 months and the size of the tear generally doesn't change dramatically from when they first presented ‑ when first on the waiting list. And our data shows that the success of rotator cuff repair is dependent on a number of factors, but the duration of symptoms is not one of those factors. Q. Right. And having looked at the 3 February 2011 ultrasound, do you believe that there was any reason, or there is any reason why you would consider allocating a different category of urgency, such as a category two, or a category one to the plaintiff's presentation? A. No, because there are about 200 patients on my waiting list with rotator cuff tears, so there would have to be something very dramatic for me to put a patient like her above those other 200 waiting."
However, as has been noted, her Honour accepted that Ms Makaroff's shoulder had become inoperable at least by November 2011, and thus necessarily rejected the view that the passage of time did not matter. In the light of that, it was not logical to rely on Professor Murrell's view that there was no reason to prioritise Ms Makaroff's operation.
Professor Sonnabend's evidence that a referring doctor who was of opinion that the surgery was more urgent than 365 days could allocate a higher priority dovetails with Dr Khatib's evidence that it is the referring doctor who sets the priority. Contrary to suggestions that this would amount to a senior and influential surgeon such as Professor Sonnabend "pulling strings", or even "cajoling or threatening" hospital staff, it involves no more than the referring doctor exercising his or her professional judgment to allocate an appropriate priority. It is not possible to see how it would be an appropriate exercise of that judgment to allocate CPC3 to a patient when the doctor is of the opinion that surgery must take place within 30 days if a significant risk of serious deterioration, to the point that the surgery would become unviable, is to be avoided. References to the "zero sum game" are misleading: it is true that for every patient promoted, others are demoted; but prioritising a patient whose condition is at risk of deteriorating irretrievably over others not in that situation is sound on every basis. On the relevant assumptions, it would have been entirely inappropriate, and irrational, and negligent, to allocate Ms Makaroff CPC3.
Had Ms Makaroff elected to undergo surgery, a reasonably prudent orthopaedic surgeon would not have allocated her CPC3, but would have prioritised her surgery to have it done before it became no longer viable. Any practice to the contrary would have been irrational, [20] and negligent.
On that basis, had she agreed, by about mid to late November 2010, to undergo surgical repair, she would have been operated on within time, before her condition became inoperable.

[44]

Conclusion

Properly advised by the Hospital that it was imperative that she have an orthopaedic consultation urgently, Ms Makaroff would have consulted an orthopaedic surgeon in early to mid-October 2010. Had she done so, she would have been referred for further imaging, which would have been performed by by mid-November 2010 if not earlier. Such imaging would have shown a significant rotator cuff tear, for which the orthopaedic surgeon would have recommended a rotator cuff repair. In offering surgery, the surgeon would have explained that the operation enjoyed a high rate of success for good outcomes and low risk, but carried the disadvantage of a lengthy period of convalescence with impaired function of the arm and shoulder; and that her condition would become inoperable if the operation was not conducted within the next couple of months. Given that advice, Ms Makaroff would probably have elected to undergo such an operation within that time frame. Had she done so by mid-November 2010, she would have come to surgery before the shoulder became inoperable, and if she did, there is a very high degree of probability that she would have had a better outcome.
I have not overlooked that to establish causation, Ms Makaroff had to establish not merely that each one of those events viewed individually would have been resolved, on the balance of probabilities, favourably to her, but also that when the possibilities of an adverse resolution at each step were accumulated, it remained more probable than not that she would ultimately have had a better outcome. However, in respect of most of the events in question, the probabilities in her favour are very high. It is only in respect of her decision whether or not to undergo surgery that I have found the position less than clear; but it is my view that the probability of her deciding in favour of surgery is sufficiently high that the slight or very slight risks of the other eventualities not being resolved in her favour - that properly advised she would still not have had a timely orthopaedic consultation, or if she did that she would not have had a timely ultrasound or MRI, or that she might not have come to surgery while her shoulder remained operable, or that the operation might not have been successful - do not combine to preclude a conclusion that proper advice by the Hospital that it was imperative and urgent that she have an orthopaedic consultation would more probably than not have resulted in her ultimately having a better outcome.

[47]

The facts as found, or, by implication, accepted, by the primary judge

The primary judge made extensive reference to the evidence. As I understand the judgment, the relevant facts are contained in a relatively brief part of the lengthy judgment. So far as necessary for the purpose of this aspect of the appeal, they may be encapsulated as follows: (i) on 19 September 2010 the appellant presented by ambulance to Hawkesbury Hospital, with a bite from her horse and a dislocated right shoulder; her shoulder was repositioned in its socket at Hawkesbury Hospital and she was then transferred to Nepean Hospital for treatment of the horse-bite; (ii) the appellant remained an inpatient at Nepean Hospital from 19 to 21 September. A report of an x-ray of her shoulder taken at Hawkesbury Hospital suggested "rotator cuff insufficiency" but no fracture. It later proved that the appellant also suffered a tear to her rotator cuff. Nursing notes at Nepean Hospital recorded the need for orthopaedic review; (iii) surgery for the horse-bite injury was undertaken on 20 September; (iv) the appellant was examined in the "Plastics Clinic" of Nepean Hospital on the same day by Dr Rannard, a registrar in plastic surgery, who noted that an orthopaedic opinion was needed in respect of how long the appellant "should be in collar and cuff". Dr Rannard probably asked the appellant if she had an appointment to see an orthopaedic surgeon about her shoulder, and would, if the appellant said she did not, have told her to "see someone about your shoulder" and that "we" will check about the follow up reports (a reference to reports from Hawkesbury Hospital); (v) the appellant was also seen by Dr Lee, who was completing a plastic surgery rotation at Nepean Hospital, in the company of Dr Rannard and another plastics registrar, on 21 September. Dr Lee was aware that the shoulder had been dislocated and repositioned at Hawkesbury Hospital. He recorded in the hospital notes that the appellant was comfortable, was having a second breakfast, that the (treatment) plan was for the dressing of the wound to be dry and intact for two weeks, that the appellant was not to bend her elbow but could do shoulder and hand physiotherapy, that she was not to drive and that she could be discharged depending on her wishes and the availability of home help. (There is nothing in this note to indicate that Dr Lee gave any advice to the appellant about orthopaedic referral. No follow up orthopaedic appointment at Hawkesbury Hospital's orthopaedics clinic was ever arranged); (vi) the appellant returned to Nepean Hospital for a follow-up up appointment on 28 September, where she was again seen by Dr Lee and the horse-bite injury treated. On this occasion Dr Lee recorded his observations with respect to the bite injury, and added: "Need ortho follow up re shoulder." (vii) Dr Lee gave the appellant a letter addressed to "To Whom it May Concern", in which he recorded a "plan" for care of the bite wound, which required no further plastics follow-up, and noted "need ortho follow up RE shoulder". It was not Dr Lee's practice to give referrals to any specific orthopaedic surgeon, but he may have given the appellant, from a collection of specialists' cards kept in the reception area, a card of Dr New, an orthopaedic surgeon who worked at Nepean Hospital. Dr Lee "would have said" words to the following effect: "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."; (viii) surgical repair of a torn rotator cuff, if carried out promptly, can be expected to have good results; if surgery is not carried out promptly, the injury becomes inoperable; (ix) in any event, the appellant was given Dr New's card, and telephoned (on 28 September or the following day) intending to make an appointment. She was told by the receptionist that consultation with Dr New would cost $200 (which the appellant said she did not have) and that Dr New was a spinal specialist. The receptionist advised the appellant to return to her general practitioner and that she could be bulk billed; (x) the appellant did not pursue her attempt to make an appointment with Dr New. Instead, she returned to her general practitioner (Dr Percy, the second respondent), whom she saw on a number of occasions between 14 October 2010 and 5 April 2011; (xi) on 14 October Dr Percy asked the appellant if she had (as advised at Nepean Hospital) seen an orthopaedic specialist. She told him of her attempt to make an appointment to see Dr New, and that she may not be able to afford his fee, and asked Dr Percy to treat her instead. Dr Percy told the appellant that he was not an orthopaedic surgeon, that shoulder dislocation can be a very serious injury, that her shoulder was injured in a very violent way, and that she really needed to be seen by an orthopaedic specialist; (xii) on 28 October, in answer to a question from Dr Percy, the appellant told him that she had not seen Dr New because her shoulder was improving. Dr Percy recorded in his notes that the shoulder was a lot more comfortable and mobile but still aching at night. He told her that there "could still be an underlying problem" and that he still wanted her to see Dr New; (xiii) on 11 November 2010 the appellant again consulted Dr Percy, having reinjured her shoulder doing stable maintenance. Dr Percy told her that she should not have been doing that sort of farm work, that she may have made the shoulder worse and that she may now have a serious right shoulder tendon injury; (xiv) on 9 December 2010 Dr Percy gave the appellant a referral for ultrasound, which she lost. On 24 January 2011, at the appellant's request, Dr Percy gave her a second referral. On 3 February 2011 an ultrasound was performed, which revealed significant tendon injury; (xv) on 8 February 2011 the appellant was referred (by Dr Percy's locum) to Dr David Duckworth, an orthopaedic specialist, whom she saw on 24 February 2011. Dr Duckworth reported that the appellant's "large rotator cuff tear was too large to repair surgically at this stage" and that he had therefore recommended conservative treatment; (xvi) the damage to the appellant's shoulder had become irreparable (although it is difficult to pinpoint a date at which it became so).

[48]

Duty of care and breach of duty

The starting point in the appeal lies in the pleadings. In her First Amended Statement of Claim ("the statement of claim") the appellant pleaded, uncontroversially, that the first respondent, through Nepean Hospital (for any of whose torts it admits it is vicariously liable), owed her a duty of care; controversially, she further pleaded (in par 16) that that duty extended to: (i) ordering a referral for ultrasound or MRI when she presented to the hospital: (a) on 19 September 2010; (b) during the course of her admission as an inpatient between 19 and 21 September; or (c) at the latest, on 28 September 2010 on her last attendance there (at the plastics clinic); (ii) undertaking or arranging, in a timely manner, clinical tests for rotator cuff function; (iii) advising the appellant as to the likelihood of a rotator cuff injury and the appropriate follow up treatment; (iv) ensuring that the appellant was seen by an orthopaedic surgeon and informing her that such a consultation was essential; (v) providing advice as to the care that would need to be taken in relation to the appellant's shoulder and, in particular, undertaking exercise.
The statement of claim went on (in par 17) to plead seven breaches of those asserted duties: (i) failure to order or issue a referral for ultrasound or MRI investigation: (a) during the course of the appellant's two day admission as an inpatient, or (b) on 28 September 2010; (ii) failure to advise as to the likelihood of a rotator cuff injury and the appropriate follow up treatment required; (iii) failure to undertake appropriate clinical testing for rotator cuff function or arranging for this in a timely manner; (iv) failure to ensure that the appellant was referred to an orthopaedic surgeon; (v) failure to inform the appellant that: (a) ultrasound or MRI investigation; and (b) consultation with an orthopaedic surgeon were essential; (vi) failure to advise the appellant appropriately as to the care she should take with her shoulder and inappropriately advising her to exercise her shoulder; (vii) failure to identify the rotator cuff tear and organise or arrange for the repair in a timely manner.
The central theme of the pleading, both as to the scope of the first respondent's duty and its alleged breaches of duty, was in the content of the advice given to the appellant concerning the extent of her shoulder injury and the need for prompt attention to it. No complaint has ever been made about the treatment the appellant was given for the horse-bite wound.
The appellant's case, as argued, can be further refined to the proposition that the undoubted duty of the Nepean Hospital doctors (she was only seen in the Plastics Clinic, and there was evidence that Nepean Hospital did not, at the relevant time, have an orthopaedic outpatients' department) extended to a duty to impress on her the urgency of having orthopaedic investigation and treatment, and the potentially dire consequences of failing to do so, and that they failed to discharge that duty.
The pleading then alleged (in par 20) that, by reason of the breach (or breaches) of the first respondent's duty of care, the appellant continues to suffer from a severely disabled shoulder and consequent disabilities which, but for the breach or breaches, could and would have been surgically repaired. The trial proceeded on the basis that the appellant alleged that, by reason of the lapse of time without orthopaedic intervention, surgical intervention was no longer a viable option.
In its amended defence, the first respondent, while contesting some of the factual bases set out in the statement of claim, essentially admitted that it owed the appellant a duty of care, but put in issue the scope of the duty alleged by her. In par 28, it denied the allegations of breaches of duty pleaded against it. Importantly, it invoked s 5O(1) of the Civil Liability Act 2002 (NSW).
Sections 5O and 5P of the Civil Liability Act together constitute the whole of Div 6 of Part 1A. They provide as follows: "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. 5P Division does not apply to duty to warn of risk This Division 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 first respondent particularised the "competent professional practice" on which it relied, for the purposes of the s 5O defence, by asserting, in sum: (i) that conventional treatment for a dislocated shoulder is immobilisation in a sling, followed by graded mobilisation; (ii) that during the appellant's admission as an inpatient she had been given specific (identified) treatment for the horse-bite injury; (iii) that, after the closed reduction of the dislocation of the shoulder (at Hawkesbury Hospital) was achieved, surgical intervention was contra-indicated until after treatment of the horse-bite injury and exclusion of unusual infection; (iv) that, prior to [sic] washout and debridement of the horse-bite wound on 20 September 2010 it was reasonable to provide physiotherapy and advice as to exercise in order to maintain mobility; (v) that accurate assessment of the appellant's rotator cuff function could not be made during her admission due to pain, swelling and limitation of movement; (vi) that it was reasonable not to perform ultrasound or MRI investigations during that admission due to the appellant's age and the severity of her pain, swelling and bruising; (vii) that it was reasonable to organise review of the appellant in the Plastics Clinic for 28 September 2010, by which time the injury-related swelling and bruising would be likely to have subsided, permitting an accurate assessment of the appellant's shoulder mobility; (viii) that it was reasonable to review the appellant in the Plastics Clinic on 28 September, to recommend at that time that she attend an orthopaedic surgeon in respect of her shoulder injury via referral from her general practitioner, and to give her a card with details of an orthopaedic surgeon to whom she could be referred, and to write to the appellant's general practitioner advising that she needed orthopaedic follow up in relation to her right shoulder.
The pleading went on (at par 29): "Further, if section 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 paragraph 28 above, accorded with, or was pursuant to, a practice in existence at that time."
I take par 29 to be a reference to a controversy in this Court concerning what it is necessary for a defendant who invokes s 5O to prove: McKenna v Hunter & New England Local Health District [2013] NSWCA 476; Sparks v Hobson [2018] NSWCA 29, to which Macfarlan JA has made reference at [64].

[51]

Duty and breach of duty

On appeal, the appellant's reliance on the pleaded particulars of breach of duty was refined to those numbered (iii), (iv) and (v) in [212] above (with (iv) modified to accept that it was beyond the power of the first respondent to "ensure" that the appellant was seen by an orthopaedic surgeon).
By ground 1 of the Further Amended Notice of Appeal (filed by leave on the day of the hearing) the appellant complains that, having found that the duty of care the first respondent admittedly owed to the appellant included (a) specifying the need for orthopaedic follow-up within 14-21 days of the injury, and (b) the formulation of a plan for treatment that included orthopaedic review with appropriate radiological investigation, the primary judge erred in failing to find, further, that (i) the failure to warn or notify the appellant of the need for orthopaedic and radiological investigation, and (ii) the failure to advise her of the risks associated with shoulder dislocation, and (iii) the failure to formulate and communicate to the appellant a plan (of treatment) constituted breach of duty. By ground 3 the appellant asserts error in applying s 5O of the Civil Liability Act to a claim based on failure to advise or negligent advice. Ground 3 was so formulated in order to raise s 5P, which excludes the application of s 5O where the liability is said to arise in connection with the giving of (or failure to give) a warning, advice or information. (At first instance, no mention was made of s 5P).
The first respondent filed a Notice of Contention, asserting that primary judge: "… ought to have found, as additional bases upon which to reject the appellant's claims under paragraph 16(iii) and 17(ii) and (v) of the [statement of claim], that such claims did not assert liability arising in connection with the giving (or 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 the first respondent of a professional service, with the consequence that s 5P of the Civil Liability Act … did not apply."
One difficulty with ground 1 of the appeal is that it is premised on asserted "findings" of the primary judge which were not identified. It is true, however, that the evidence recounted by the primary judge plainly supported findings of the kind asserted (that is, specification of the need for orthopaedic follow up, although not necessarily within 14-21 days of injury, and formulation of a plan of treatment), and there is no finding to the contrary. The primary judge essentially addressed the breaches of duty asserted in ground 1 by reference to s 5O of the Civil Liability Act, which is the subject of the challenge in ground 3. That ground depends upon the construction to be placed on s 5P.
As indicated above, in [207] and [208] of the judgment, at the conclusion of a discussion of the particulars of breach of duty, the primary judge found that the defence for which s 5O provides was made out. That is a defence made available in cases of allegations of professional negligence, that the defendant (the professional) acted in a manner that was at the relevant time widely accepted in Australia by peer professionals as competent professional practice.
However, s 5P, to which her Honour's attention was not drawn by any of the legal representatives, excludes the application of s 5O in cases where the liability is said to arise 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 of a professional service. There are some difficulties of construction of s 5P. "Associated with" qualifies "the risk of death or injury". Thus, what is excluded from s 5O are warnings, advice, and other information in respect of the risk of death or injury associated with the provision of the professional services provided.
Section 5P not having been drawn to her Honour's attention, she made no findings in relation to the factual matters involved. Section 5P has, to date, commanded little attention in this Court or in the Supreme Court. In Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311, at [45]-[48], to which attention was drawn by the first respondent, Leeming JA identified three categories of language used in the Civil Liability Act to denote the concept of causation: (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).
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.
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.
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.
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.
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.
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.
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]).
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.
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.
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.
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.
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.
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.
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.
Since I would not determine the liability issue by reference to s 5O, the issues raised by the Notice of Contention do not arise.
That makes it necessary to turn to the question of causation.

[52]

Causation

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."
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.
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.
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).
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.
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.
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 (19th) 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).
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.
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.
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.
On those conclusions the appellant has established, as against the first respondent, causation.

Makaroff v Nepean Blue Mountains Local Health District

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