The plaintiff’s arm had been dislocated by a horse bite. The plaintiff alleged that the defendants each breached their duty of care to her by failing to order imaging to identify a rotator cuff injury, failing to refer her to an orthopaedic specialist, and failing to advise her as to proper care for her shoulder. The plaintiff alleged that by reason of the defendants’ failures, her treatment was delayed to the extent that she could no longer benefit from surgical repair.

Both defendants denied liability and relied upon peer professional practice defences under section 5O of the Civil Liability Act 2002 (NSW).  Both defendants also pleaded contributory negligence.

In the judgment, after considering in detail the joint conclave expert medical evidence, her Honour Harrison AsJ found that both defendants had made out their defences pursuant to section 5O and had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice [208], [393]. All of the plaintiff’s allegations of breach of duty of care failed.

Further, Harrison AsJ was not satisfied that the plaintiff had proved causation [433].

Contributory negligence would have been assessed at 15% for the plaintiff’s personal conduct in failing to take care and follow instructions given by both defendants [451].

To read the decision in Makaroff v Nepean Blue Mountains Local Health District [2019] NSWSC 715, click here.