Hold your horses: NSWCA reins in CLA s5O defence

05 July 2021

The New South Wales Court of Appeal has overturned an earlier finding that a Sydney hospital, when treating a patient suffering shoulder injury resulting from a horse bite, acted in accordance with peer professional opinion. The Hospital was therefore unable to rely on the defence under s5O of the Civil Liability Act 2002 (NSW) (CLA) and was found liable in negligence for the patient’s loss.

In Issue

  • Whether the hospital and the Appellant’s treating GP (Respondents) breached their respective duties by failing to convey to the Appellant the necessity and urgency to undergo orthopaedic review and if so, whether that was causative of any loss to the Appellant; and
  • Whether the Respondents were entitled to rely on a s5O CLA defence on the basis that they acted in a manner that was widely accepted by peer professional opinion as competent professional practice

The background

On 19 September 2010, Ms Makaroff (the Appellant) suffered a dislocated shoulder and bite wound to her right arm as a result of being bitten while feeding her horse. Having received treatment for her dislocated shoulder at the Hawkesbury Hospital, the Appellant was transported to the Nepean Blue Mountains Local Health District Hospital (Nepean Hospital) for plastic surgery to treat the bite wound.

The Appellant underwent surgery at the Nepean Hospital before being discharged into the care of her General Practitioner, Dr Percy, on 21 September 2010. Although the Appellant was advised to see an orthopaedic surgeon for a follow-up of her shoulder injury, it was not until 3 February 2011 that the Appellant underwent orthopaedic review and radiological examination, by which time it was discovered that she had sustained a severe rotator cuff injury.

The decision at trial

At first instance, the primary judge found that both the Nepean Hospital and Dr Percy acted in a manner that was widely accepted by peer professional opinion as competent professional practice. They were therefore entitled to rely on the defence under section 5O of the CLA. As a result, both Respondents were found not to have breached the duty of care owed to the Appellant, with judgment entered in their favour.

Furthermore, due to delays with the public health system, the Court held that it was unlikely the Appellant would have undergone surgery for some time. On that basis, even if the Appellant underwent immediate orthopaedic review, the outcome of her injuries would have likely been the same. The Respondent’s actions were therefore found not to be causative of any loss.

The Decision on appeal

The Appellant submitted that the primary judge ought to have found the Nepean Hospital negligent for failing to warn or notify her of the need to undergo orthopaedic review within 2 to 3 weeks of her injury, and disputed the Court’s finding on causation.

On appeal the NSW Court of Appeal (Brereton JA and Simpson AJA; Macfarlan JA dissenting) found that the expert evidence, at least implicitly, had established that proper professional practice required Nepean Hospital to have conveyed to the Appellant both the “essentiality” and “urgency” of undergoing orthopaedic review for her shoulder injury. In the absence of any evidence to the contrary, the Court concluded that the advice given by Nepean Hospital was not in accordance with widely accepted peer professional practice and was therefore incompatible with a defence under section 5O of the CLA.

On the question of causation, in considering the test provided by section 5D of the CLA, the Court of Appeal was ultimately satisfied that, even with the delays in the public health sector, a reasonable, prudent orthopaedic surgeon would have prioritised the Appellant’s surgery and she would have undergone surgery before her condition became inoperable.

In dismissing the appeal against Dr Percy, the Court was satisfied that a breach of duty had not been established. As a general practitioner, Dr Percy was found to have acted in accordance with peer professional practice and was therefore entitled to rely on the defence under section 5O.

Implications for you

For medical practitioners, this decision highlights the importance of conveying to patients the risks associated with each treatment option - including any risks associated with not undertaking further treatment.

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

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation