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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 Hearing dates: 6 October 2020 Date of orders: 28 May 2021 Decision date: 28 May 2021 Before: Macfarlan JA at [1]; Brereton JA at [81]; Simpson AJA at [208] Decision: With respect to the second respondent (Dr Percy): (1) appeal against the order for judgment in favour of the second respondent (the second defendant below) dismissed; (2) appellant to pay the second respondent's costs of the appeal; With respect to the first respondent: (3) appeal allowed; order for judgment in favour of the first respondent (the first defendant below) set aside; (4) order that judgment be entered for the appellant against the first respondent in the sum of $276,319.95, with effect from 14 June 2019; (5) first respondent to pay the appellant's costs at first instance and of the appeal; (6) liberty to any party to apply, within 14 days, with respect to costs, calculation of damages and interest; (7) Notice of Contention dismissed. Catchwords: NEGLIGENCE — medical negligence — breach of duty — whether failure to advise the appellant that it was essential and urgent to organise orthopaedic review of injured shoulder constituted breach NEGLIGENCE — medical negligence — peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether the respondents acted in a manner that was widely accepted by peer professional opinion as competent professional practice NEGLIGENCE — medical negligence — causation — factual causation — whether it was more probable than not that the appellant would have had a better outcome but for the negligence – whether the appellant would have consulted an orthopaedic surgeon – whether the appellant would have undergone surgery prior to her shoulder injury becoming inoperable Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 5O, 5P Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Ambulance Service of NSW v Worley [2006] NSWCA 102 F v R (1983) 33 SASR 189 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 McKenna v Hunter and New England Local Health District [2013] NSWCA 476 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Sparks v Hobson [2018] NSWCA 29 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Category: Principal judgment Parties: Diana Makaroff (Appellant) Nepean Blue Mountains Local Health District (First Respondent) Dr Paul Percy (Second Respondent) Representation: Counsel: J Sheller SC (Appellant) J Downing SC (First Respondent) M Hutchings / C Coventry (Second Respondent)