On 19 September 2010 the appellant, Ms Makaroff, had an unfortunate incident with one of her horses, resulting in a dislocation to her right shoulder, and a bite wound. She was taken to Nepean Hospital, the first respondent, for plastic surgery on the bite wound. After being discharged she was in the care of her general practitioner, the second respondent. There was some delay in receiving an orthopaedic review and radiological examination until 3 February 2011, by which time was too late to have her shoulder repaired surgically, as she had suffered a significant rotator cuff tear.
The appellant claimed that had her injury been assessed and diagnosed promptly, she would have had the surgery with a good outcome. The claims were rejected on first instance, and Ms Makaroff appealed. On appeal the primary issues were:
- Whether the Hospital breached its duty of care to the appellant;
- Whether any such breach by the Hospital caused the appellant loss;
- Whether Dr Percy breached his duty of care to the appellant;
- Whether any such breach by Dr Percy caused the appellant loss.
The Court allowed the appeal against the Hospital, however dismissed the appeal against the second respondent, Dr Percy. In the decision, their Honours considered the application of s5O of the Civil Liability Act 2002, which operates to deal with the standard of care applied to people acting in their role as a professional. The primary consideration is whether at the time of the service, the professional acted in a manner that was widely accepted in Australia by peer professional opinion. As a result, claims of this nature will often turn on expert evidence.
The Court of Appeal found that there was in fact a duty owed to their patient, Ms Makaroff. Additionally, but for this breach, she would have undergone the surgery required, which established causation. She was awarded damages of $276,319.95, and the hospital was ordered to pay the appellants costs both at first instance, and the appeal.
The decision of Makaroff v Nepean Blue Mountains Local Health District NSWCA 107 can be read in full here: https://www.caselaw.nsw.gov.au/decision/179ab44cd9cac7e214fa50dd
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