Makaroff v Nepean Blue Mountains Local Health District

1. [1]

   HER HONOUR: The plaintiff seeks damages for injuries sustained on 19 September 2010 to her right shoulder as a result of the alleged medical negligence of the first and second defendants.

2. [2]

   The plaintiff is Diana Lynn Makaroff. The first defendant is Nepean Blue Mountains Local Health District (“Nepean Hospital”). The second defendant is Dr Paul Percy, the plaintiff’s former treating general practitioner.

Witnesses

1. [3]

   Dr Percy, Dr Joe Don Joo Lee, Professor David Sonnabend, Professor John Raftos, Dr John Cummine, Dr Sanj Fernando, Dr John Korber and Professor George Murrell (orthopaedic specialists); Dr Diane Prattley and Susan Dinley (occupational therapists); Dr David Wai, Associate Professor Vincent Roche and Dr Ken Dobler (general practitioners); Associate Professor Carolyn Quadrio and Dr Rosalie Wilcox (psychiatrists); Associate Professor Tuly Rosenfeld and Brendan Fogarty (physiotherapists); and the plaintiff and her friend Sheila Jackson all gave evidence and were cross examined.

2. [4]

   On 14 September 2018, counsel for all parties gave oral submissions. Leave was granted to the plaintiff to serve submissions in reply by 4.00 pm on Friday, 21 September 2018 and judgment was reserved. On 3 October 2018, the defendants were given leave to file further written submissions in reply. Nepean Hospital’s submissions, limited to five pages, were to address only “what the defendants had said”, and nothing else. Dr Percy’s submissions were also limited to five pages and were to cover the ambit of the evidence and criticism against him, s 5O of the Civil Liability Act 2005 (NSW) and the evidence of Professor Murrell.

3. [5]

   Senior counsel for the plaintiff supplied further submissions dated 21 September 2018 with the approval of Nepean Hospital. The second defendant did not accept the ambit of those submissions. The second defendant submitted that the further submissions exceeded the terms of the leave sought and the bounds of the pleaded claim against him, and advanced arguments unsupported by the content of his evidence under cross examination. While I agree that practitioners should comply with directions regarding submissions and their contents, and that the plaintiff took liberties with the directions of the Court, I have decided that it is in the interest of justice in this case to accept their further submissions, as otherwise these proceedings would encounter difficulties in addressing gaps in important issues.

Background

1. [6]

   The plaintiff relied on her statements dated 25 July, 20 August and 3 September 2018, and her affidavit filed 26 February 2010 in prior proceedings 2009/294905 (Perpetual Limited v Diana Lynn Makaroff) in the equity division of this Court (Ex G).

2. [7]

   The plaintiff was born in 1951 and is 67 years of age. She currently resides in a horse float on a five-acre property in Vacy, New South Wales. She has 20 much-loved horses and 15 cats.

3. [8]

   From the age of about four or five, the plaintiff developed an enduring passion for horses and began to attend a riding school at Warriewood every Saturday morning.

4. [9]

   The plaintiff gave evidence that over the course of her life, she had formed a very close bond with her horses. They have required hard work but also brought great pleasure. Their welfare is very important to her, as is the welfare of every creature. She created them, and feels that she is responsible for them (T162.21.33).

5. [10]

   In early 1962, at the age of 10, the plaintiff attended school in Moss Vale as a boarder. She left in 1967 without completing her school certificate. Throughout her time at school, she took riding and horsemanship lessons three days per week at Throsby Park School. She often stayed at Throsby Park during the school holidays, where she worked for her keep. She continued to work there after she left school.

6. [11]

   The plaintiff subsequently worked as a model for television and print commercials, some of which involved horses. After a year or two, she became a house model for Sportscraft.

7. [12]

   After she stopped modeling, she became a jillaroo at Warialda. There the plaintiff learned to use a stock whip and mustered cattle on horseback, usually from dawn until dusk. She obtained a heavy vehicle license so that she could drive wheat trucks at harvest time. She also worked on a big cattle station at Moree and another at Bundarra, where she trained polo ponies to get them used to the stick and ball. She developed an abiding interest in equestrian events.

8. [13]

   In 1974, the plaintiff married her first husband. They divorced in 1983. In December 1987, she married her second husband. They separated at the end of 1995, but continued to live separately on their property, “Middleton Stud”. In April or May 1997, after coming to a financial settlement with her ex-husband, the plaintiff left Middleton Stud and purchased a 36½ acre property on Kurmond Road (“the Kurmond Road property”).

9. [14]

   While the home she had designed on the Kurmond Road property was constructed, the plaintiff temporarily lived in a caravan on the land. She hired tradesmen to complete some of the work but did a lot of it herself, including core-filling concrete blocks using a shovel and wheel barrow, clearing away building rubble, installing floor joists and helping to secure nine-metre Colourbond roof sheets. The plaintiff named the stud “Makaroff Warmbloods”.

10. [15]

    I will set out the plaintiff’s financial circumstances in greater detail later in this judgment when I consider economic loss. For present purposes, I note that the plaintiff no longer owns her home, and currently resides alone in a horse float which is located on a rural property owned by a friend. At the time of the Court hearing, the plaintiff had 20 horses and 15 cats.

The pleading framework

1. [16]

   The plaintiff alleges that each of the first and second defendants owed her a duty of care and that such a duty extended to:

2. [17]

   The plaintiff alleges that in the circumstances, the defendants each breached their duty of care to her. The particulars are that the defendants:

3. [18]

   The plaintiff submitted that by reason of the defendants’ failure to conduct appropriate tests and provide adequate advice in relation to future treatment and care of the plaintiff’s injury, her treatment was delayed to the extent that she can no longer benefit from surgical repair. As a result, her shoulder is seriously and permanently disabled.

4. [19]

   In its amended defence filed 30 August 2018, the first defendant denies that any of its conduct caused harm to the plaintiff, does not admit the loss, injury and damage alleged, and further pleads:

5. [20]

   The second defendant in his defence filed 1 March 2016 admits that he saw the plaintiff at the five consultations to which she refers, but disputes the plaintiff’s version of what occurred at those consultations. He similarly denies liability and relies upon s 5O of the Civil Liability Act.

6. [21]

   The second defendant pleads at [13]-[16] and [18]:

7. [22]

   Both defendants also plead contributory negligence. I shall address the issue of contributory negligence later in this judgment. As pleaded at [18] above, there is also an issue of limitation, which I will address after I have dealt with the liability of the second defendant.

Factual disputes

1. [23]

   In addition to the issues already raised in the pleadings, significant further issues of fact arise between the plaintiff and both defendants. Starting with the claim against Nepean Hospital, the key factual disputes are as follows:

2. [24]

   Beyond 28 September 2010, a significant issue arises as to what Dr New’s secretary/receptionist told the plaintiff when she telephoned his office on or around that day to try to make an appointment.

3. [25]

   A number of significant factual issues also arise between the plaintiff and Dr Percy, particularly in respect of the signs and symptoms with which the plaintiff presented on her 14 October 2010, 28 October 2010 and 11 November 2010 appointments, and what advice Dr Percy provided her on those occasions.

4. [26]

   In a matter such as this, where determination of critical issues of fact will involve an evaluation of oral evidence of disputed events, it is well established that the process of fact finding should be informed as far as possible “on the basis of contemporary materials, objectively-established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118 at [30]-[31] (Gleeson CJ, Gummow and Kirby JJ).

The accident

1. [27]

   The circumstances of the plaintiff’s accident are uncontroversial. On 19 September 2010, the day of the accident, the plaintiff fed her horses as usual. After she had given hay to her oldest stallion, Gordost, she thought that one of his hay biscuits was close enough to the gate that he might push it under and out of reach. She crouched down at ground level and pushed the biscuit of hay back towards him as he ate another biscuit. While the plaintiff was doing this, Annakova, one of her younger mares, approached the gate. At her approach, Gordost lunged forward, ears flat back, and savaged the plaintiff’s right arm, which was still reaching through the gate.

2. [28]

   The plaintiff says that while Gordost was biting her arm, he was also aggressively pulling it up and back towards him. With the round steel bar of the gate about an inch or two down from the top of the plaintiff’s shoulder, the leverage created by his pulling pushed the top of her humerus, where her upper right arm where meets the shoulder, forward and down onto her ribs. The force of Gordost’s attack caused the plaintiff’s head to hit the gate bar twice, and inflicted a small cut near the outer edge of her right eyebrow. After the attack, the plaintiff was conveyed by ambulance from her property at Freeman’s Reach to Hawkesbury Hospital.

Findings on credibility

1. [29]

   Before I turn to the plaintiff’s treatment, it is appropriate that I record my findings on her credibility, as well as that of the medical staff of Nepean Hospital and of Dr Percy. I observed both the plaintiff and Dr Percy carefully when they gave evidence and were cross examined. The plaintiff underwent a lengthy cross examination. The hospital staff gave evidence based on the hospital records and their usual practice.

2. [30]

   Senior counsel for the plaintiff submitted that she should be accepted as a witness of truth and credit. She has lived, in many ways, within a small radius. She has spent most of her adult life in Freeman’s Reach and Vacy. She is not sophisticated or highly educated, having left school at the age of 16 without completing a school certificate. With the exception of modelling, she has dedicated all of her work to horses. Senior counsel noted that the plaintiff’s life experience has been entirely rural, and that she has done her best to give evidence according to her abilities.

3. [31]

   Recently, the plaintiff has been living in a horse float, alone except for the company of her horses and cats. Although she was involved in prior legal proceedings relating to her land, those proceedings settled, and before this hearing she had never before been to court. The plaintiff presented in these proceedings as a person whose whole life has been dedicated to horses, and who has been distressed since her injury by her inability to engage in the activities she had always been able to do herself.

4. [32]

   Senior counsel conceded that at times, the plaintiff was a difficult witness. In the witness box, she could not resist the urge to tell the Court whatever she felt compelled to say about the evidence, whether or not it was relevant. Her counsel noted that although her demeanour was unfortunate, not all witnesses are good witnesses in a technical sense. Sometimes, technically proficient witnesses are untruthful, but can tell a fiction coherently. The plaintiff found it very hard at times to speak clearly. She was frequently confused, and gave answers to questions that she was not asked. However, senior counsel argued that her difficulty in delivering her evidence coherently should not reflect poorly on her credibility. He submitted that in weighing her up her evidence, the Court should find that she was an honest witness, and that her unpolished presentation was consistent with her background.

5. [33]

   Counsel for the first defendant submitted that the Court must treat the plaintiff’s evidence with considerable caution, and hesitate to accept her version her dealings with the first defendant, Dr New’s secretary and Dr Percy in 2010. The first defendant argued that the Court should only prefer the plaintiff’s version to that put forward by other witnesses where her version is corroborated by contemporaneous documents.

6. [34]

   Counsel for Nepean Hospital referred to Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 (“Cordin”). In Cordin at [164]-[171], Davies J reviewed a number of authorities relating to credibility and the fallibility of human memory, and noted that contemporaneous statements and documents are likely to be more accurate than a recollection of events.

7. [35]

   Both defendants also referred to Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 (“Onassis”), where Lord Pearce set out a number of questions that judges may ask themselves when considering whether a witness is telling the truth. Lord Pearce emphasised that credibility involves wider problems than mere demeanour, which is mostly concerned with whether the witness appears to be telling the truth as he or she now believes it to be. At 431, Lord Pearce characterised credibility as concerning the following problems:

8. [36]

   In Cordin, Davies J quoted with approval at [165] part of the last paragraph of the extract from Onassis above.

9. [37]

   The first defendant submitted that the overwhelming impression that emerges from the plaintiff’s evidence is that she is just the type of person described by Lord Pearce in Onassis. She is an emotional person, utterly convinced that her claims against Nepean Hospital and Dr Percy are morally right. She has replaced her actual recollection of events with an imagined version which gels with her view of her legal rights.

10. [38]

    The first defendant did not submit that the plaintiff lied in her account of events to the Court. While such a finding would be open to the Court in a number of respects, it is unnecessary. Rather, the first defendant argued that the Court could be comfortably satisfied that the plaintiff’s recollection of key events is wrong, notwithstanding the vehemence of her claims that she clearly remembers important events.

11. [39]

    Nepean Hospital submitted that the plaintiff’s evidence on this very point (T 419.24) only serves to reinforce its submission that she was reconstructing, not actually remembering, what occurred. Her claim that her recollection of “important things” is “very strong” and “probably exact” is hyperbolic, and demonstrates that she gave evidence out of a deep-seated conviction as to her cause, rather than from a genuine reflection and recollection of what occurred. The plaintiff’s claim that “I remember where I sat, exactly what I heard, and that stayed exactly the same” belies the reality of human memory and again, suggests that the plaintiff is replacing memory with imagination.

12. [40]

    Counsel for Dr Percy went further than counsel for Nepean Hospital and submitted that the plaintiff, in cross examination, did not present as a witness doing her best to answer the questions put to her. She appeared at times to be totally unwilling to answer questions responsively. The second defendant argued that the patent variability of her evidence as to when she telephoned Dr Percy’s rooms for the first time did her no credit. Her apparent reluctance to be candid about such a matter, or to admit error, illustrated her general approach to giving evidence. She was plainly an unreliable witness.

13. [41]

    The second defendant argued that the plaintiff also at times exhibited a cagey and evasive approach to any perceived challenge to her evidence. Counsel for the second defendant said that the plaintiff’s evidence as to the circumstances in which she created her first statement in Ex A, approximately 43 days before she gave evidence, was evasive and unimpressive: see T 224.22; T 228.20-29.

14. [42]

    The second defendant argued that the plaintiff gave the impression of a person pursuing an agenda. Counsel for the Dr Percy also agreed with counsel for Nepean Hospital that the plaintiff’s approach to the evidence appeared to involve a very firm and fixed precondition of mind that did not withstand objective analysis.

15. [43]

    The plaintiff’s recall of consultations that she attended with Dr Percy appeared to be very poor. However, she insisted that she possessed “exact” recall. Under cross-examination, she gave the following evidence:

16. [44]

    In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq observed:

17. [45]

    The credibility of a witness and her veracity may be tested by reference to the objective facts proved independently of the evidence given, particularly by reference to the documents in the case, with regard to the person’s motives and to the overall probabilities: see Armagas Ltd v Mundogas SA (the “Ocean Frost”) [1986] 2 All ER 385; 1 Lloyd’s Rep 1 per Robert Goff LJ at 57, and Kit Digital Australia Pty Ltd (in Liq) [2014] NSWSC 1547 per Black J at [7].

18. [46]

    The second defendant argued that the objective materials do not reflect well on the plaintiff’s credibility. Notwithstanding the plaintiff’s modest income, on 13 July 2007 she signed an Australian Taxation Office form that represented her GST turnover at 3 June 2007 to be more than $150,000. When asked why she misrepresented her income, she gave the following evidence (T 203.4-5):

19. [47]

    The plaintiff also at times changed her evidence. When she was first asked whether she had sought the assistance of Mr Obeido, her answer was as follows (T 169.38-421):

20. [48]

    The plaintiff later gave the following evidence (T 182.16-26):

21. [49]

    Counsel for Dr Percy argued that the plaintiff’s apparent reluctance to be candid about such a matter, or to admit error, demonstrates her general approach to giving evidence. She was plainly an unreliable witness. Her testimony was indefinite and therefore the second defendant submitted that the Court ought to reject her evidence on any contentious issue, unless it is corroborated by a reliable source.

22. [50]

    The plaintiff was a most difficult witness. Often she did not focus on the question she was asked, but rather gave a non-responsive answer in the form of a stream of consciousness. From time to time I requested that the plaintiff concentrate on answering the question that was asked, but it made no difference. Eventually I advised her that if she did not try to answer the questions asked, I would have little choice but to make adverse findings against her credit. Nevertheless, she continued to volunteer irrelevant information (T 239.3-5).

23. [51]

    I take into account and I agree with the examples of unreliable evidence set out in the defendants’ submissions. I will include one further example which was telling of the implausibility of her evidence. In cross examination, the plaintiff gave the following evidence regarding her left knee (T 411.43-50; T 412; T143):

24. [52]

    The first part of the plaintiff’s evidence, that the landowners may not have permitted someone to come onto the property, may be correct. However, the idea that the plaintiff accepted the advice of the mother of a celebrity general practitioner, who told the plaintiff that she did not require knee surgery, is ridiculous.

25. [53]

    I have reluctantly come to the conclusion that I should treat the plaintiff’s evidence with caution, unless the evidence she gave is against her interest or is corroborated by other witnesses or objective contemporaneous material. I also agree that the plaintiff displayed the characteristics set out in Onassis.

26. [54]

    So far as the medical practitioners and physiotherapists who treated the plaintiff at Nepean Hospital are concerned, I accept their evidence as truthful. They have relied on their contemporaneous records and have given evidence that accords with them. Where they do not recall events, they have said so.

27. [55]

    Counsel for Dr Percy submitted that in cross examination, the plaintiff’s counsel was unduly critical of the content of Dr Percy’s clinical records and appeared to suggest, without a proffered basis, that he had no recollection of the details of conversations outside of what he previously recorded in the documents. Dr Percy noted that his clinical records were created for a limited purpose as an aide memoir, and do not represent the entirety of his recollections (T 548.07-12).

28. [56]

    In Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, Basten JA observed the limits of the content of medical records in the following terms at [8]:

29. [57]

    Dr Percy argued that for these reasons, the attempt to impugn his evidence ought to be rejected, and he should be accepted as a truthful and reliable witness.

30. [58]

    Senior counsel for the plaintiff submitted that Dr Percy should not be accepted as a credible witness except where his evidence and that of the plaintiff coincide. Dr Percy’s notes reveal that he changed dates, and he represented himself and the plaintiff as having engaged in conversations that bolster his case, although they are supported by no contemporary notes.

31. [59]

    Dr Percy’s statement was made on 21 August 2018, almost seven years after the relevant events. The plaintiff argued that it would be almost impossible to imagine someone retaining a memory of conversations which were not noted for seven years. The plaintiff further argued that the letter Dr Percy wrote to the plaintiff’s solicitor at the time closer to the event, dated 19 July 2011 (Ex K), still does not support his version of what occurred in the conversations. Wherever there is conflict between the two, the plaintiff says that her evidence should be preferred. Counsel for the plaintiff referred to Dr Percy’s evidence where she argues it should be rejected in relation to specific events. I shall refer to that evidence when it arises in the judgment.

32. [60]

    Dr Percy gave clear and concise evidence. When he was found to be mistaken in his evidence, such as writing an incorrect day or month in his clinical notes, he agreed he was mistaken. It is true that he altered two entries in his clinical notes where he had written the year “2011”, when instead those entries should have been dated the same day and month but in “2010”. Those entries run in the proper chronological order, so I do not make any adverse findings with regard to his alterations.

33. [61]

    In the letter that Dr Percy wrote to the plaintiff’s solicitor at the time dated 19 July 2011 (Ex K), he briefly set out what occurred during each of the relevant appointments with the plaintiff. The letter’s contents are not dissimilar to what is contained in his statement. On the last page, he does proffer advice and criticism of the plaintiff’s decisions when he says:

34. [62]

    Senior counsel for the plaintiff submitted that Dr Percy’s evidence in the letter should not be accepted, because he was attempting to persuade the solicitor not to sue him. Although it may well have been Dr Percy’s intention to avoid a suit, the letter—with the exception of the portion quoted above—contained a fairly accurate report of what his other evidence claims to have occurred during the consultations.

35. [63]

    In his written submissions in reply, senior counsel for the plaintiff also pointed out in cross-examination some of the more obvious contradictions in Dr Percy’s evidence. In particular, he pointed to Dr Percy’s decision to prescribe Tramadol, even though the notes suggested that the plaintiff was feeling quite well. However, Dr Percy gave oral evidence which explained why he prescribed Tramadol in the following exchange (T 509.1-9):

36. [64]

    I agree that it must have been difficult to accurately recall conversations that occurred eight years earlier. However, Dr Percy was able to refer to his clinical notes, copies of referrals made by him and letters from those medical practitioners replying to the referrals. I have carefully compared Dr Percy’s version of the conversations with his clinical notes to check for consistency. They are broadly consistent.

37. [65]

    Overall, I accept Dr Percy’s evidence as reliable and where his evidence is in conflict with that of the plaintiff, I prefer his evidence. The one exception to this preference is where he recorded that the plaintiff used a mattock. I refer to this evidence in more detail later in this judgment.

Events after the accident

1. [66]

   On 19 September 2010, the day the accident occurred, the plaintiff was taken to Hawkesbury Hospital by ambulance. She had dislocated her right arm at her shoulder. At Hawkesbury Hospital, her right arm was replaced in its socket. She was then conveyed to the Nepean Hospital for plastic surgery in relation to the horse bite.

2. [67]

   The plaintiff was an inpatient at Nepean Hospital from 19 to 21 September 2010. At 16.48 on 19 September 2010, an x-ray of the plaintiff’s right shoulder was taken (Ex D1/5 defendants’ individual tender bundle, Vol 2, Tab 25 p 448). The x-ray report is in the following terms:

3. [68]

   It is important to note that although the x-ray revealed no fracture, it did show a moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency.

4. [69]

   Later that day, the plaintiff consented to undergo plastic surgery on her right forearm (Ex D1/5, Vol 2, Tab 25 p 449). On the following day, 20 September 2010 at 16.40, the plaintiff had an operation debriding the horse bite wound on her right forearm using a skin graft from her right thigh (Ex D1/5, Vol 2, Tab 25 p 458).

5. [70]

   According to the hospital recovery progress notes (Ex D1/5, Vol 2, Tab 25 p 459), the plaintiff arrived in recovery at Nepean Hospital with the limb in situ. The notes record a dressing on the right forearm, a dressing on the right thigh donor site and a sling in situ to the right forearm. By 17.15 on 20 September 2010, the plaintiff was awake and experiencing pain in her right thigh. The plaintiff did not complain about the performance of the skin graft and it does not form part of her claim.

6. [71]

   Drs Rannard and Lee, and physiotherapist Mr Fogarty, provided statements. I closely watched as the latter two were briefly cross examined. They have no personal recollection of the plaintiff and based their evidence on the hospital’s clinical notes and their usual practice. I found them to be truthful witnesses and I accept their evidence.

7. [72]

   Dr Francesca Rannard, a registrar in plastic surgery at Nepean Hospital, relied upon her statement dated 24 August 2018. She was not called for cross examination. Dr Rannard probably saw the plaintiff on 20 September 2010 (Ex D1/5, Vol 1 Tab, 4 p 38). She relies upon her notes and knowledge of her usual practice. Part of Dr Rannard’s stated plan for the plaintiff was, “We needed an orthopaedic opinion in respect of how long Ms Makaroff should be in the collar and cuff” (Ex D1/5, Vol 1, Tab 4 p 40 at [21]). Dr Rannard says that she would have said to Ms Makaroff, “Have you got an appointment to go back and see an orthopaedic surgeon about your shoulder?” If the plaintiff had said she did not have an appointment, then Dr Rannard would have told her, “You need to see someone about your shoulder. We will check about the follow up reports” (Ex D1/5, Vol 1, Tab 4 p 41 at [24]).

8. [73]

   Dr Rannard was familiar with the practicalities of seeking to have a patient seen in the orthopaedic outpatients clinic, and stated that it was not unusual for patients who had suffered wounds requiring plastic surgery to have also suffered some type of orthopaedic injury that required the involvement of an orthopaedic surgeon. Dr Rannard also stated it was her experience that when the hospital sought to organise patients to be seen in the orthopaedic clinic, as at September 2010, it took typically between one and two weeks (Ex D1/5, Vol 1, Tab 4 p 42 at [30]-[31]). The plaintiff did not have an orthopaedic surgeon. Dr Rannard did not personally make arrangement with the plaintiff for her to see someone about her shoulder.

9. [74]

   Dr Joe Don Joo Lee was an intern at Nepean Hospital completing a plastic surgical rotation at the time of the plaintiff’s admission. He relied upon his statement dated 23 August 2018 (Ex D1/5, Vol 1 Tab 2). He was briefly cross examined. He has no recollection of meeting the plaintiff. His evidence is based on his interpretation of the notes he made on the day as an intern accompanying Dr Rannard and Dr Turner, two plastics registrars at Nepean Hospital (Ex D1/5, Vol 1, Tab 2 pp 458-468).

10. [75]

    Based on his review of the records for the plaintiff, Dr Lee has no doubt that by the time he went to see her on the morning of 21 September 2010, he was aware that she had been bitten by a horse and that the wound had been debrided and washed out and treated by a skin graft. He was also aware that the plaintiff had dislocated her right shoulder in the horse bite incident, and that it had been relocated at Hawkesbury Hospital.

11. [76]

    He could not recall discussing the plaintiff’s plan of management with a more senior doctor in plastics surgery, but it is likely that he did so ([19]).

12. [77]

    Dr Lee said that the plaintiff had been doing shoulder exercises as directed by her physiotherapist (Statement [21]; T 465.10). The Nepean Hospital file records an entry “not to bend elbow” (Ex D1/5, Vol 2, Tab 25). Dr Lee was not sure whether he was recording something somebody had told him to that effect (T 465.45). The entry “not to bend elbow” does not accord with the physiotherapist’s evidence. Dr Lee wrote this note after Mr Fogarty had spoken to the plaintiff the day before and showed her how to put on and take off an immobiliser. I will return to Dr Lee’s evidence shortly, as I am writing this judgment following the chronological order of events for ease of understanding.

13. [78]

    The plaintiff says that she was seen by a male physiotherapist at Nepean Hospital. She says that he instructed her that she should do certain “J” exercises for her right arm so as to avoid surgery. She demonstrated the “J” exercise while giving evidence in the witness box. She says that she continued to do the “J” exercises as instructed both in hospital and at home.

14. [79]

    The plaintiff’s evidence is that she completed the “J” exercises every day between 28 September 2010 and 14 October 2010.. She completed those exercises a few times a day for about a few minutes at a time (T 218.45-46; T 219.1-3).

15. [80]

    Mr Brendan Fogarty, physiotherapist, relied upon his statement dated 23 August 2018 (D1/5, Tab 3). He was briefly cross examined. He has no recollection of the plaintiff and relied upon his notes and usual practice to prepare his statement.

16. [81]

    It is common ground that on 20 September 2010 at approximately 14.00 hours, Mr Fogarty saw the plaintiff for a physiotherapy review. There are factual disputes as to what occurred. The plaintiff says that he provided her with a sling and the following advice (T 83.13-18; T 84.30-35):

17. [82]

    The alleged advice appears to have established the idea in the plaintiff’s mind that she had a soft tissue injury that only required exercise “through the pain barrier” to avoid a frozen shoulder and to heal (T 102.12-19; T 116.12-15):

18. [83]

    Mr Fogarty’s evidence (D1/5, Tab 3 pp 27-28) is that by the time he came to the short stay ward to see the plaintiff at approximately 14.00 hours on 20 September 2010, it is very likely he was aware that she had suffered a traumatic right shoulder dislocation, which had subsequently been relocated at Hawkesbury Hospital. It is also very likely that he was aware that there was a skin graft planned because of the horse bite to the plaintiff’s right arm. He was asked to attend upon her to fit a shoulder immobiliser pending further medical review.

19. [84]

    A shoulder immobiliser is a slightly more sophisticated version of a shoulder sling. It has a strap situated around the wearer’s back in order to keep the arm flush against the chest. If needed, this extra strap can be used for support, or else removed.

20. [85]

    Mr Fogarty said that when he came to the ward on 20 September 2010, according to his usual practice, he would have introduced himself to the plaintiff and explained to her that he had been asked by the medical team to come and fit her with a shoulder immobiliser. He would have explained in some detail what he was doing in order to fit it to the plaintiff and show her how to put it on and take it off. He said he also would have educated her about the certain limited movements she could perform with her right arm.

21. [86]

    Mr Fogarty said that he has a usual practice in fitting shoulder immobilisers to patients after shoulder dislocations, and explaining to patients and demonstrating to them the manner in which they should put on and remove the immobilizer so they are self-sufficient in the process. Because he sees shoulder dislocations fairly regularly as a physiotherapist, he has developed a standard set of instructions for those patients. He has no reason to believe that he departed from those instructions with the plaintiff.

22. [87]

    Mr Fogarty recorded in his notes of 20 September 2010 that when he attended the plaintiff, he observed her resting in bed (denoted by “RJB” in the notes) with her right arm in a collar and cuff. He showed her how to fit the shoulder immobiliser and how to perform limited movements of the right arm while she sat on the bed.

23. [88]

    In line with his usual practice, Mr Fogarty would have said to the plaintiff words to the effect of:

24. [89]

    Having shown the plaintiff how to fit the shoulder immobiliser, Mr Fogarty then showed her how to do assisted active range of motion movements (denoted by “AAROM shoulder flexion” in the notes) of the right arm, using the left arm for support. He has a usual practice in demonstrating the process to patients like the plaintiff who needed to complete assisted active range of motion exercises.

25. [90]

    In line with his usual practice, Mr Fogarty would have said to the plaintiff words to the following effect:

26. [91]

    At this point, according to his usual practice, he would have demonstrated to the plaintiff the movement he wanted her to make by using his own arms. He would have used his left arm to slowly and carefully lift his right arm, bent at the elbow, about 15 centimeters away from his body.

27. [92]

    He would have continued in his explanation to the plaintiff by saying, “I now want you to do it for me.” Mr Fogarty stated that the point of asking the patient to demonstrate the active assisted range of motion movements was so that he could have been satisfied that she knew how to do them properly and safely. He would also have said to the plaintiff, consistent with his usual practice, words to the effect of:

28. [93]

    In line with his usual practice, once Mr Fogarty explained to the plaintiff how to put the shoulder immobiliser on and off and demonstrated the active assisted range of motion exercises, he would have asked the plaintiff to remove and replace the shoulder immobiliser while he watched. Again, the purpose of the exercise was to satisfy him that the patient could manage it on his or her own. He has no doubt that this is what he did with the plaintiff on 20 September 2010.

29. [94]

    Mr Fogarty denied that he ever instructed the plaintiff to complete the “J” exercises or anything like them (T 360.27-31), and that he ever instructed the plaintiff to work through the pain barrier. His evidence was unchallenged during his cross examination (T 365-368).

30. [95]

    Professor Sonnabend considered that the “J” exercises could have potentially engaged the plaintiff’s right rotator cuff (T 606.16-21) and that the experience of pain when performing such an exercise was not desirable. He stated (T 605.27):

31. [96]

    I prefer Mr Fogarty’s evidence to that of the plaintiff, as his notes are contemporaneous and his evidence accords with them. I make a finding that Mr Fogarty did not ever instruct the plaintiff to complete the “J” exercises, or to work through the pain barrier.

32. [97]

    Returning to Dr Lee’s evidence, he is aware (from reviewing the hospital records for the plaintiff) that on 20 September 2010, Dr Rannard, plastic surgery registrar, made an entry in the notes after reviewing the plaintiff.

33. [98]

    On the next day, 21 September 2010, Dr Lee relevantly recorded the following entry in the plaintiff’s notes:

34. [99]

    On 21 September 2010, the plaintiff was discharged from hospital and scheduled a follow-up appointment at the outpatients/plastics clinic of Nepean Hospital for 28 September 2010. No follow-up orthopaedic appointment in the hospital outpatients’ clinic was ever arranged.

35. [100]

    Dr Lee next saw the plaintiff in the plastics outpatient clinic for her follow-up appointment on 28 September 2010. He relevantly recorded the following entries in the plaintiff’s notes:

36. [101]

    Dr Lee provided the plaintiff with a written referral to follow up with her general practitioner, headed “To whom it may concern” and signed by him, so that her general practitioner could arrange orthopaedic review in relation to her shoulder. He recorded the following on the written referral:

37. [102]

    Dr Lee gave evidence that he would have told the plaintiff, “With your shoulder you need further follow up. Please see your GP to get referral to an orthopaedic surgeon” (T 463.10).

38. [103]

    The plaintiff submitted that the probability is that Dr Lee gave her a referral to Dr New, because she cannot otherwise account for how she came to have Dr New’s number. Dr New is an orthopaedic and spinal specialist.

39. [104]

    The plaintiff says that on 28 September 2010, she attended the outpatients/pastics clinic, where her wounds were dressed and her graft staples removed. The plaintiff says that the clinic provided her with a referral letter to Dr New, and that there was no specific message given in relation to the referral, other than that it would involve a routine follow up.

40. [105]

    Dr Lee does not believe that he referred the plaintiff directly to Dr New. He wrote the discharge summary (T 467.45). His evidence is that he does not give referrals to any specific orthopaedic surgeon. He gave the plaintiff a letter addressed, “To Whom It May Concern”.

41. [106]

    At the time of the plaintiff’s treatment in September 2010, the Nepean Hospital had a reception area which covered all of the outpatient clinics, including the plastics clinic. In that reception area, there were cards for a number of specialists who worked at the hospital.

42. [107]

    Dr Lee has no recollection of giving the plaintiff Dr New’s name (T 468.40; statement [26]). He cannot recall the precise discussion he had with the plaintiff at the 28 September 2010 review in the plastics outpatient clinic. Based on the entry he made in his notes of 28 September 2010, he has no doubt that the plaintiff told him she had been doing shoulder exercises as directed by a physiotherapist. It also seems very likely that she told him something about how her shoulder was going, though he is unable to recall the conversation. In line with his usual practice, in giving her the referral letter, which indicated that she needed no further plastics follow up but that she needed orthopaedic follow up in respect of her shoulder, Dr Lee says that he would have said words to the following effect:

43. [108]

    The practice at Nepean Hospital in September 2010 was that referrals were not given to external specialists, such as specialist orthopaedic surgeons. Rather, they advised patients about the need to see other outside specialists and told the patients to go and see their general practitioners in order to obtain a written referral. The reason the hospital adopted that practice was because the specialist typically would write back to the referrer to report on the patient’s progress. When staff at the hospital referred a patient from the plastics clinic to an external specialist, they wanted the specialist to report back to the treating general practitioner, not the hospital.

44. [109]

    Dr Lee does not recall whether he actually gave the plaintiff a card for a specific orthopaedic surgeon on 28 September 2010. He was informed that in the plaintiff’s statement, she says that when she attended the plastics clinic on 28 September 2010, the doctor who saw her handed her a referral to Dr New.

45. [110]

    Although Dr Lee cannot recall giving the plaintiff a referral to Dr New, Dr New was one of the doctors who worked at Nepean Hospital and to whom the hospital sometimes made referrals. He stated that it was entirely possible that he took the plaintiff into the reception area for the plastics clinic and handed her Dr New’s card, telling her that when she went and saw her general practitioner to obtain a referral, she could ask to be seen by Dr New. As was his usual practice, if Dr Lee handed the plaintiff Dr New’s card, he would have said words to the effect:

46. [111]

    In my view, it is most likely on the balance of probabilities that Dr Lee told the plaintiff shat 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.

47. [112]

    I accept that Dr Charles New was an orthopaedic and spinal surgeon, as stated on his letterhead as at 19 June 2013 (Ex D2/2).

48. [113]

    When the plaintiff returned home from the hospital on 28 September 2010, she mistakenly believed that she had the referral to see Dr New directly. She phoned Dr New’s rooms, either that day or the next, to make an appointment. The plaintiff says that a woman answered the phone and that they had the following conversation:

Was Nepean Hospital negligent?

1. [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.

Section 5O of the Civil Liability Act 2002 (NSW)

1. [115]

   The first defendant, in its defence to the amended statement of claim (Agreed Tender Bundle, Tab 2), relies on s 5O of the Civil Liability Act and particularises the manner in which it says its conduct amounts to competent professional practice. In para [28(vi)-(viii)] the first defendant sets out the bases upon which it says that its management of the plaintiff amounted to competent professional practice. They are:

2. [116]

   Section 5O of the Civil Liability Act reads:

3. [117]

   To establish a defence, a defendant must call expert evidence to establish that he or she acted according to professional practice that was widely accepted by peer professional opinion. If accepted, and subject to the trial judge accepting that the opinion evidence as to practice is rational, that evidence means that the defendant escapes liability.

4. [118]

   In South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 (“Gould”) at [123]-[129], Leeming JA with Basten and Meagher JJA agreeing set out the pre-conditions of s 5O as follows:

5. [119]

   In Gould, Leeming JA stated at [30] that in construing s 5O, the following propositions are uncontroversial:

6. [120]

   Counsel for Nepean Hospital also referred the Court to McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 per MacFarlane JA, where his Honour stated at [160]:

7. [121]

   Counsel for Nepean Hospital also referred to Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 per MacFarlane JA at [213], where his Honour referred to his judgment in McKenna at [165]:

8. [122]

   Both parties agree that if the pre­conditions to s 5O are not made out, it then becomes necessary to apply ss 5B and 5C of the Civil Liability Act. Senior counsel for the plaintiff submitted that the evidence establishes that Nepean Hospital failed to exercise reasonable care and skill in the management of the plaintiff.

Liability of the first defendant

1. [123]

   The plaintiff relied upon seven particulars of negligence against Nepean Hospital. For the purposes of analysis, each particular of negligence and the relevant evidence pertaining to it will be analysed in turn. However, before considering the first particular of negligence, it is important to say something about the pre-conditions to s 5O on the facts of this case.

2. [124]

   The first precondition that Nepean Hospital must satisfy is that it was “practising a profession”. It is settled law, given the decision in Gould, that a corporate defendant such as Nepean Hospital can invoke s 5O: see Gould at [31]-[34].

3. [125]

   The doctors and nurses who attended to the plaintiff at Nepean Hospital were “practising a profession”. Each member of staff was a trained and qualified medical or nursing professional, and the plaintiff had been sent to Nepean Hospital under the care of the plastics team for management of her injuries.

4. [126]

   The critical issue for the purposes of determining liability is whether Nepean hospital, through its staff, in providing medical and nursing services to the plaintiff, acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. To make sense of that issue, it is necessary to have regard to the individual particulars of negligence.

5. [127]

   The plaintiff submitted broadly that the evidence of Drs Sonnabend, Raftos and Duke established that the professional services offered by Nepean Hospital were substandard and not widely accepted by peer professional opinion as competent professional practice. In her submissions in reply, the plaintiff submitted that the particulars referred to by Nepean Hospital reveal a division of opinion. Section 5O(1) of the Civil Liability Act requires Nepean Hospital to prove that the professional practice was widely accepted in Australia by peer professional opinion as competent professional practice. The plaintiff argued that all that Nepean Hospital was able to prove was that there was a clear division of opinion between a group comprising orthopaedic surgeons and emergency physicians. The group only comprised of five people. The plaintiff argued that the opinions of three doctors – Professor Murrell, Dr Fernando and Dr Cummine – are not evidence that their views are widely accepted. The plaintiff therefore maintains her position that the defence under s 5O has not been made out.

6. [128]

   As stated earlier in this judgment, Professor Sonnabend is an orthopaedic surgeon; Professor Murrell is a conjoint Professor at the University of New South Wales; Associate Professor Raftos is an emergency physician; Dr Cummine is an orthopaedic surgeon; Dr Fernando is a senior emergency physician; and Dr Duke is an orthopaedic surgeon. They prepared a medico-legal joint experts report dated 30 August 2018. There was some difficulty with Dr Duke participating in the joint experts report. Ultimately, he prepared his comments on the views expressed in the joint experts report. All the doctors, excluding Professor Murrell, gave conclave evidence. Professor Murrell was on route to Paris at the time. He gave evidence from Paris individually, which meant that he was not subject to the rigors of debate with his professional peers during the conclave evidence. Due to Professor Murrell’s non-attendance at the conclave, where his views were not subjected to the same scrutiny, I prefer evidence of the other experts where it is in conflict with his.

7. [129]

   On 30 August 2018, Professor David Sonnabend, Professor John Raftos, Dr John Cummine, Dr Sanj Fernando, Dr John Korber and Professor George Murrell met to discuss the questions raised by the parties.

8. [130]

   I have included Dr Duke’s opinions in the body of the joint report in relation to each question. Dr Korber, radiologist, only participated in answering question 2. The joint report dated 30 August 2018 is as follows.

9. [131]

   Dr Duke’s answer to question 1.1 was:

10. [132]

    Dr Duke’s answer to question 1.2 was:

11. [133]

    Dr Duke’s answer to 1.3 was:

12. [134]

    Dr Duke’s answer to 1.4 was:

13. [135]

    Dr Duke’s answer to 1.5 was:

14. [136]

    Dr Duke’s answer to 1.6 was:

15. [137]

    Question 2 was addressed to Dr Korber, a radiologist, only. He was not required to give conclave evidence. Hence, I accept his opinion.

16. [138]

    Dr Duke’s answer to 3.3 was:

17. [139]

    Dr Duke agreed with the experts’ joint answer to question 3.4.

18. [140]

    Duke Duke’s answer to question 3.5 was:

19. [141]

    Dr Duke’s answer to question 3.6:

20. [142]

    After question 3.6, Associate Professor Raftos excused himself from the conclave as the next series of questions was not his area of expertise.

21. [143]

    Dr Duke’s answer to question 5 was:

22. [144]

    Dr Duke agreed with the first paragraph of the joint experts’ response to question 6.

23. [145]

    In relation to question 7, Dr Duke agreed with the first paragraph and Professor Sonnabend, but disagreed with Prof Murrell in the last paragraph.

24. [146]

    In relation to question 8, Dr Duke agreed with Professor Sonnabend and disagreed with Professor Murell. After question 8, Dr Fernando excused himself from the conclave.

25. [147]

    Dr Duke’s agreed with Professors Sonnabend and Murrell in relation to question 9.

26. [148]

    In relation to questions 10 and 11, both the joint experts in their report and Dr Duke gave a single answer:

27. [149]

    Dr Duke’s answer to questions 10 and 11 was that he agreed with Professors Sonnabend and Murrell.

28. [150]

    In relation to question 12, Dr Duke agreed with Professors Sonnabend and Murrell.

29. [151]

    Dr Duke’s answer to contributory negligence (a) was that he agreed with Professors Sonnabend and Murrell, and Dr Cummine.

30. [152]

    Dr Duke’s answer to contributory negligence (b) was that he agreed with Professors Sonnabend and Murrell, and Dr Cummine.

31. [153]

    Dr Duke agreed with the response to contributory negligence (c).

32. [154]

    I shall next turn to the particulars of breach of duty of care, which I will address in order.

33. [155]

    The plaintiff submitted that she should have been advised by 21 September 2010 that an ultrasound was essential, according to paragraph 1.5 of the conclave of experts and the opinions of Professor Sonnabend and Associate Professor Raftos. Drs Cummine and Fernando and Professional Murrell gave evidence to the contrary. It was the plaintiff’s submission, in view of the division of opinion on this issue, that the first defendant did not establish a defence under s 5O. As outlined earlier, the fact that the experts suggest that there are two separate views as to the appropriate treatment does not entitle the Court to say that either view expresses professional opinion sufficient to make out the defence. All the first defendant has proved is that there is a clear division between a group comprising of orthopaedic surgeons and emergency physicians.

34. [156]

    Nepean Hospital submitted that the evidence established that the practitioners’ decision not to organise, perform or refer for imaging of the plaintiff’s right shoulder was widely accepted by peer professional opinion as competent professional practice. According Nepean Hospital, even if Dr Raftos and Dr Duke qualified their answers to say that the defendant needed to write and provide the plaintiff with a plan for later imaging during her inpatient admission, their opinions would only establish that there was an inconsistent body of peer professional opinion. That inconsistency would not be enough to negative the s 5O defence, given the agreement between Professors Sonnabend and Murrell, and Drs Cummine and Fernando.

35. [157]

    Nepean Hospital further submitted that Professor Sonnabend and Dr Cummine’s evidence demonstrates why it was entirely rational and sensible to defer the imaging. There were compelling clinical grounds upon which to defer it until after discharge.

36. [158]

    Professor Sonnabend, both in his 22 August 2012 report (Ex E, Tab K, [13]) and in his oral evidence (T 554.25; T 555.18), stated that the ideal time to organise the imaging was after the plaintiff’s inpatient admission, which occurred between 19 and 21 September 2010. He explained that an ultrasound performed on a site which contains blood and hematoma can result in a misleading interpretation. In his report, he suggested that the ultrasound should ideally have been undertaken three weeks or so after the initial injury. When giving evidence, Professor Sonnabend stated, “…if you want to be obsessive about it, it would be around day 7 or 8” (T 554.26-27). However, Professor Sonnabend further explained in his evidence that there were good reasons not to perform an ultrasound during the inpatient admission because it would be too painful so soon after the plaintiff’s acute injury (T 555.24). He stated that it was neither necessary nor appropriate to do an ultrasound during the inpatient admission (T 556.5). He added, “If you want to get a precise diagnosis, you should do it around the three week mark” (T 555.21-22). Drs Cummine, Fernando and Professor Murrell agreed with Professor Sonnabend that imaging was not required during the inpatient admission (T 556.14). Dr Raftos indicated that it was reasonable to defer imaging at that time, though a plan would be required to arrange imaging within about 3 weeks (T 556.40). Professor Murrell stated that he does not routinely use MRI for assessing the rotator cuff (T 727.50).

37. [159]

    Dr Fernando expressed the view that the plaintiff had a shoulder dislocation. There was no indication that she had a rotator cuff injury, although she exhibited risk factors. He stated that standard practice would have been to assess her in two or three weeks and decide whether she was healing appropriately, and then further investigate with either an ultrasound or MRI. Orthopaedic referral would depend on that assessment.

38. [160]

    According to Dr Fernando, the vast majority of shoulder relocations involve the patient spending several hours in the emergency department, after which they are discharged. The only reason Ms Makaroff stayed in hospital was because she required plastic surgery for her arm. He stated that it is important not to reflect on her case with hindsight bias. Although we now know that the plaintiff had a rotator cuff injury, the few indications of it at the time would have arisen post-assessment. That assessment would have needed to occur after further healing, when a lot of her pain and swelling had reduced.

39. [161]

    Dr Duke differed slightly in his view from that of Dr Fernando. Dr Duke indicated that he believed it was ideal to perform MRI and ultrasound imaging while the plaintiff was an inpatient even if it was “uncomfortable”, though he accepted that it was reasonable to defer the imaging provided there was a plan leading to review at some point in the future (T 557.12).

40. [162]

    As outlined earlier, part of Dr Rannard’s plan was, “We needed an orthopaedic opinion in respect of how long Ms Makaroff should be in the collar and cuff” (Ex D1/5, Vol 1, Tab 4 p 40 at [21]). Dr Rannard said that she would have said to Ms Makaroff, “Have you got an appointment to go back and see an orthopaedic surgeon about your shoulder?” If the plaintiff had said she did not have an appointment, then Dr Rannard would have told her, “You need to see someone about your shoulder. We will check about the follow up reports” (Ex D1/5, Vol 1, Tab 4 p 41 at [24]). Dr Rannard did not personally make arrangements with the plaintiff for her to see someone about her shoulder.

41. [163]

    There was no specific written plan for the plaintiff to undergo imaging at a later date during an inpatient admission. The evidence of Drs Raftos and Duke was that if the ultrasound was not performed when the plaintiff was an inpatient, there should have been a plan for the plaintiff to have the ultrasound done in two to three weeks (T 557.11-45).

42. [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.

43. [165]

    This allegation of breach of duty of care fails.

44. [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).

45. [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.

46. [168]

    The plaintiff submitted that the evidence established that it is widely accepted in Australia by peer professional opinion as competent professional practice to tell a patient that he or she needed to come back for orthopaedic review, organise a means of referral and clearly state the likelihood of a rotator cuff injury.

47. [169]

    Professor Sonnabend stated that whether a treating professional gave a patient advise to seek orthopaedic follow up, or explained why the patient needed to return, would on a patient by patient basis. He said that what was ultimately important was that the person was confident that the patient understood that she needed to return. In this case, the fact that the plaintiff called for an orthopaedic review that same day or the next demonstrated that the doctor had conveyed what was essential (T 616.22; T 618.11; T 619.9-T 622.27).

48. [170]

    According to Nepean Hospital, Dr Duke’s evidence did not come close to establishing that for the hospital to discharge its duty of care, it was necessary for someone at the hospital to explain to the plaintiff why she needed to come back for orthopaedic review. If anything, the hospital submitted that Dr Duke’s insistence that every such case would require an explanation (T 617.43; T 622.1) only served to demonstrate that his position was extreme and that he was an outliner in his opinion.

49. [171]

    Associate Professor Raftos, Professors Sonnabend and Murrell and Dr Cummine agreed that review by an orthopaedic surgeon at the time was desirable but not essential, although there should have been a review arranged for a future date.

50. [172]

    Dr Fernando disagreed, given that the treating professionals had no knowledge of the plaintiff’s rotator cuff injury and that dislocations generally heal well. At the time, the plaintiff would have been assumed to have had a straightforward shoulder dislocation that was successfully relocated. The only reason she stayed in hospital was to have a skin graft operation. Were it not for her bite wound injury, she would have been discharged home without orthopaedic review like every other shoulder dislocation without complication in Australia. Dr Fernando stated that if the plaintiff’s pain continued after discharge, then review would be indicated.

51. [173]

    On 28 September 2010, Dr Lee handed the plaintiff a letter addressed “To Whom it May Concern” and told her, “You need to see an orthopaedic surgeon for follow up. To do so you need to go and see your GP and get a referral.” It is most likely that Dr Lee also handed the plaintiff a card for Dr New. She understood that she had to contact Dr New and see her general practitioner.

52. [174]

    Professor Sonnabend said that what as important to the plaintiff’s treatment at this stage was that she was made to understand that she had to have a follow up orthopaedic review. He stated that the conversation conveying that importance would vary from patient to patient (T 618.11.15).

53. [175]

    Dr Duke was the only expert who maintained the position that someone at the hospital should have told the plaintiff, during the inpatient admission, that she needed to attend a follow-up appointment specifically to investigate a suspected rotator cuff injury (T 572.35). Dr Duke’s evidence was that it would not be effective to simply tell a patient to go and see an orthopaedic surgeon. He said that a patient would need to be told, “You need to see an orthopaedic surgeon because you may have a very big tear in your tendons of your shoulder, and if you don’t get them fixed soon, you may [end] up with a chronically painful, useless arm. It is vital that you see an orthopaedic surgeon for those reasons” (T 617.43-48).

54. [176]

    All other experts accepted that it was adequate to convey to the plaintiff that she needed to see an orthopaedic surgeon for review of her shoulder without necessarily explaining why that follow up was required. They gave this opinion because at that time, the plaintiff was not ready for proper clinical examination or imaging, and even partial examination results may have been “unreliable”. They felt it would have been potentially misleading and alarming to inform her at that time about the suspicion of a rotator cuff tear.

55. [177]

    I prefer the evidence of Professors Sonnabend, Murrell and Dr Cummine that advice need not be given as to the likelihood of a rotator cuff injury on 28 September 2010. It is my view that the advice that the plaintiff received at Nepean Hospital as to the follow-up review required was widely acceptedby peer professional opinion as competent professional practice. This allegation of breach of duty of care fails.

56. [178]

    The plaintiff submitted that in the circumstances, failing to perform an examination for rotator cuff function during the inpatient admission or at the plastics clinic was not widely accepted by peer professional opinion as competent professional practice.

57. [179]

    The plaintiff submitted that in relation to s 5O, Nepean Hospital failed to refer to question 1.3 in the conclave of 30 August 2018. That question asked whether a proper examination of the right shoulder was performed, including of the rotator cuff. Professor Sonnabend and Associate Professor Raftos were of the opinion that a proper examination needed to be performed, and was not. The plaintiff argued that Professor Sonnabend’s separate statement that there was no need to refer the plaintiff for an MRI or ultrasound, which the Nepean Hospital relied upon, should be viewed in light of his broader statement that the plaintiff’s right shoulder should have been properly examined.

58. [180]

    In the joint report, Drs Cummine, Fernando and Murrell expressed the opinion that no examination was required, indicated or even possible, because of the plaintiff’s post-operative swelling, pain and immobilization. They stated that instead, a later proper assessment was indicated.

59. [181]

    However, at the joint conclave, it was the experts’ opinion that a proper examination was not performed. Professor Sonnabend, Associate Professor Raftos and Dr Duke expressed the opinion that a proper examination was needed and not performed, and that even if it could not have been performed fully, a partial examination should have been carried out and recorded. Both Professors Sonnabend and Murrell and Dr Duke said it was appropriate to check axillary nerve function.

60. [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]).

61. [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.

62. [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).

63. [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 clinic was widely accepted in Australia by peer professional opinion as competent professional practice. This allegation of breach of duty of care fails.

64. [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.

65. [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.

66. [188]

    Nepean Hospital submitted that this particular of negligence cannot be made out on its face. There is no duty on the part of either defendant to ensure any outcome. Rather, in a negligence action, there is a duty to exercise reasonable care and skill in the provision of treatment and advice.

67. [189]

    Nepean hospital further submitted that the expert evidence establishes that in facilitating a referral to an orthopaedic surgeon at the plastics clinic on 28 September 2010, it acted in a manner that was widely accepted by peer professional opinion as competent professional practice.

68. [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.

69. [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).

70. [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).

71. [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.

72. [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.

73. [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.

74. [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].

75. [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).

76. [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.

77. [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.

78. [200]

    Nepean Hospital submitted that this allegation fails at the factual level, and that the plaintiff’s evidence about being advised and taught to perform “J” exercises should be rejected. The Court should prefer the contemporaneous notes made by Mr Fogarty that he advised the plaintiff to perform a very conservative quarter range of motion movement of the right arm as part of some active assisted range of motion exercises. He also ensured that the plaintiff retained at least enough movement of the shoulder to permit her to put the shoulder immobiliser on and off. He demonstrated to her how to put it on and take it off and watched to see if she was able to do it herself. There was nothing inappropriate about that advice.

79. [201]

    I have set out the plaintiff’s evidence and that of the physiotherapist, Mr Fogarty, earlier in this judgment. I accept and prefer his evidence, as it accords with his notes and clinical practice. He stated that he did not advise the plaintiff to perform “J” exercises. As Professor Sonnebend stated, “[I]n general terms, if it hurts, you’re doing some damage to something”.

80. [202]

    While there was no expert evidence tendered in relation to this particular allegation of negligence, I find that the plaintiff was advised as to the care she should take with her right shoulder and was not inappropriately advised to exercise it by performing “J” exercises. The purported advice to perform “J” exercises did not occur. It is my opinion that the advice the plaintiff received in relation to the care she should take with her shoulder, and the exercises she should perform, were widely accepted by peer professional opinion as competent professional practice. This allegation of breach of duty of care fails.

81. [203]

    Nepean Hospital submitted that like the other particulars of negligence, the evidence demonstrates that it was widely accepted in Australia by peer professional opinion as competent professional practice not to diagnose the plaintiff’s rotator cuff tear, or organize its repair, during the period the plaintiff remained under hospital care from 19-21 and 28 September 2010.

82. [204]

    In the joint conference, all experts agreed that the rotator cuff tear need not have been diagnosed during the inpatient admission (Ex D2/3, Tab 15, [1.6]). They further agreed that while a rotator cuff tear could have been diagnosed during the plastic’s clinic attendance on 28 September 2010, there were no grounds to criticise the failure to diagnose it by that stage (Ex D2/3, Tab 15, [3.6]). Dr Duke suggested that it should have at least been suspected, but did not criticise the failure to diagnose it (T 572.35)

83. [205]

    Professor Sonnabend stated (Ex E, Tab K, p 5):

84. [206]

    In oral evidence, Professor Sonnabend maintained that position. (T574.1).

85. [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.

86. [208]

    Hence, Nepean Hospital has made out its defence pursuant to s 5O of the Civil Liability Act. It has established that the hospital acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.

87. [209]

    Nepean Hospital has not incurred a liability in negligence arising from its professional service. The plaintiff’s claim fails.

88. [210]

    Both defendants have made reference to the plaintiff’s financial position, suggesting that it informed her choices not to pursue certain medical care. The second defendant further submitted that the plaintiff failed to follow medical advice. Dr Percy argued that the plaintiff’s haphazard management of her health directly impacted upon her progress.

89. [211]

    Sieriff, the clinical nurse specialist at Nepean Hospita, recorded in the clinical notes that the plaintiff refused Meals on Wheels because she could not afford it. On 21 September 2010, the plaintiff told Ms Josette Goldsmith, a social worker, that her income consisted of a fortnightly Centrelink payment.

90. [212]

    The plaintiff was unable to recall who cared for her horses while she remained in either Hawkesbury or Nepean Hospital.

91. [213]

    Upon discharge from Nepean Hospital, the plaintiff was effectively home alone. She had some very limited help between 14 and 28 October 2010, the period between the first and second post-injury appointments with Dr Percy. At that time, she was caring for about 20 horses and 15 cats on the property where she lived. The plaintiff said that horse trainer Milton Coutts and his son, Chris, visited once to give vaccinations. The plaintiff’s friend, Ms Jackson, also provided some limited assistance on perhaps two or three occasions to muck out the stables. The plaintiff provided no other evidence that she received any significant assistance in caring for her horses. Glynn Boobyer from the Animal Welfare League visited once in relation to the cats.

92. [214]

    The second defendant submitted that the plaintiff must have done more physical work than she admitted in her evidence, on the basis that there was no proper explanation as to who else cared for her animals between and after her consultations with Dr Percy. According to the second defendant, the Court is entitled to infer that such evidence would not have assisted her case: see Van Dyke v Sidhu [2013] NSWCA 198.

Liability of the second defendant

1. [215]

   Like Nepean Hospital, the second defendant, Dr Percy, relies upon s 5O of the Civil Liability Act. The second defendant submitted that the expert evidence establishes that Dr Percy acted at all times in a manner that was widely accepted by peer professional opinion as competent professional practice.

2. [216]

   The second defendant also relies upon ss 5L and 5G of the Civil Liability Act, as well as the Limitation Act. I have set out s 5O of the Civil Liability Act and the applicable law earlier in relation to the liability of the first defendant. I shall briefly refer to ss 5L and 5G of the Civil Liability Act later in this judgment.

3. [217]

   After discharge from Nepean Hospital, the plaintiff consulted Dr Percy on five occasions. I will refer to these consultations in more detail after I set out the particulars of the alleged negligence.

4. [218]

   Dr Percy has been the plaintiff’s general practitioner since 1979. The plaintiff first consulted Dr Percy when he worked at the Castle Hill medical practice and then from 1991 at the Glenhaven practice (T 475.15-43).

5. [219]

   In 2010 and 2011, although Dr Percy had access to medical director computer software at the Castle Hill medical centre, it was his preferred and usual practice to make handwritten notes during his consultations and prepare handwritten scripts and letter. His handwritten clinical notes have been interpreted and typed. They can be found at Ex D1/5, Vol 2 Tab 27.

6. [220]

   It was Dr Percy’s usual practice when treating a patient to review recent entries in their file to familiarise himself immediately prior to the consultation with their history and recent concerns. It was also his usual practice in relation to a consultation to make a note in a patient’s records of any relevant history or background, the results of examinations or investigations he performed, and his treatment and advice.

7. [221]

   Dr Percy first met the plaintiff when she consulted him in 1979 at the Castle Hill Medical Centre. She continued to consult him periodically, including when he moved to the Glenhaven Family Medical Centre in 1991. He felt that he and the plaintiff had a good therapeutic relationship, considering she had consulted him for over 30 years and followed him when he changed practices.

8. [222]

   Dr Percy knew about the plaintiff’s passion for her horses. He knew she suffered from intermittent depression and anxiety, which were exacerbated by two divorces and ongoing financial concerns. In preparing his statement, Dr Percy refreshed his memory from the plaintiff’s medical file and referred to his clinical notes (Statement, [5]-[9]).

9. [223]

   The plaintiff alleges that the second defendant owed her a duty of care when she saw him at the four consultations he appointed for her between 14 October 2010 and 9 December 2010. The plaintiff alleges that the second defendant:

10. [224]

    There were five relevant consultations between the plaintiff and Dr Percy in relation to the plaintiff’s right shoulder injury. These occurred on 14 October 2010, 28 October 2010, 11 November 2010, 9 December 2010, 24 January 2011, and 5 April 2011. I shall deal with them in chronological order. Some aspects of the conversations during the consultations are common ground, but for the most part they are in dispute.

11. [225]

    In summary, the second defendant argued that the plaintiff’s submission that Dr Percy ought to have referred her for ultrasound on 14 October 2010, 28 October 2010, and 11 November 2010 ought to be rejected because he did refer her for an ultrasound on 9 December 2010. She did not go. She lost the referral, and failed to request a replacement until 24 January 2010. Even then, she did not arrange for an ultrasound until a further 10 days had passed, on 3 February 2011.

12. [226]

    The second defendant further argued that the plaintiff’s submission that Dr Percy ought to have referred her for an MRI on 14 October 2010, 28 October 2010, 11 November 2010 and 9 December 2010 ought to be rejected because it was Dr Percy’s understanding that the plaintiff had already been referred to Dr New by Nepean Hospital.

13. [227]

    Finally, the second defendant submitted that Dr Percy gave appropriate advice and took steps to examine the plaintiff, encourage her compliance with the hospital’s advice to consult Dr New and otherwise diligently ‘managed’ the plaintiff in relation to her various presented complaints.

14. [228]

    For each consultation, it is necessary to deal with each of the above allegations of breach of duty of care.

15. [229]

    There was a 16-day interval between the plaintiff’s attendance on 28 September 2010 at the Nepean hospital plastics clinic and her first post-injury consultation with Dr Percy. That delay may have been in part due to the plaintiff’s inaction, but is partly explained by the fact that she could not drive due to her shoulder injury.

16. [230]

    The plaintiff gave the following evidence about telephoning Dr Percy’s rooms (T 221.48-T 222.09; T 222.47; T 223.1):

17. [231]

    The plaintiff gave the following evidence (T 223.19-29; T 223.37-41):

18. [232]

    This evidence is at odds with para [52] of the plaintiff’s statement dated 25 July 2018 (Ex A).

14 October 2010 – first appointment (25 days post injury)

1. [233]

   It is common ground that on 14 October 2010, the plaintiff drove her automatic motor vehicle from her home to Dr Percy’s Glenhaven rooms. She estimated that it was a 30 minute trip (T 221.27-28).

2. [234]

   When giving evidence, the plaintiff was reluctant to identify what she had told Dr Percy on 14 October 2010. When pressed, she characterized the conversation in the following way (T 233.8-15):

3. [235]

   The plaintiff deposed that she told Dr Percy what Dr New’s secretary had told her over the phone about going to her general practitioner for a follow-up to get bulk billed. According to the plaintiff, Dr Percy muttered under his breath “I’m not an orthopaedic specialist”. Other than muttering those words, he said nothing. She also deposed that at no time, either on that day or at any of her further appointments, did he mention the words “orthopaedic” or “specialist”.

4. [236]

   According to the plaintiff, Dr Percy seemed more concerned about her lower arm skin graft, as he kept referring to the scar’s unattractive appearance.

5. [237]

   Dr Percy looked at the plaintiff’s leg and arm, and gave her some scripts for a sedative, Temazepam, and Meloxicam for inflammation. He asked her to come back and see him in two weeks. The plaintiff made a further appointment for 28 October 2010 on her way out of his rooms.

6. [238]

   When asked why she didn’t consult an orthopaedic specialist, the plaintiff gave the following evidence (T 241.44-46):

7. [239]

   Due to her financial circumstances, she asked Dr Percy to treat her instead of seeing an orthopaedic specialist (Ex D1/5, Tab 17 p 4). Dr Percy had made a note to that effect, and informed the plaintiff that he could not treat her shoulder injury. Dr Percy also recorded that he had informed her that he was not an orthopaedic specialist, and that the plaintiff would be better assessed and cared for by one.

8. [240]

   When she was asked about the contents of Dr Percy’s note, the plaintiff denied that he ever gave her this advice (T 242.50; T 243.24):

9. [241]

   She could not recall whether she had taken any documents to the consultation (T 128.48; T 129.1). When asked what she did with the referral, she gave evidence that she may have discarded it (T 243.45-T 244.07):

10. [242]

    The plaintiff gave evidence that she and Dr Percy had discussed Dr New (T 242.50; T 243.24). The plaintiff denied that Dr Percy instructed her to contact Dr New’s rooms a second time (T 244.9-11). Dr Percy was not challenged in cross examination as to the accuracy of his clinical note which recorded, “Still advised to proceed with orthopaedic specialist referral suggested by hospital” (Ex D1/5 657.2).

11. [243]

    Dr Percy said that pursuing the referral to Dr New would have likely been the quickest way for the plaintiff to access specialist orthopaedic care (T 497.38-49).

12. [244]

    When asked whether the plaintiff told him the size of her wound, which he then wrote down, Dr Percy agreed that it could be right. He said that the plaintiff then showed him two x-ray reports, as well as a handwritten letter from the hospital. He reviewed the two x-ray reports. The first was of the plaintiff’s right shoulder, showing her humerus and forearm. The x-ray confirmed an anterior dislocation of the humeral head with no obvious associated fracture, and no other significant bony injury in the humerus or the elbow. The second was showed her right shoulder, taken after reduction of the shoulder dislocation. It confirmed a satisfactorily relocated shoulder with no fracture. Dr Percy was reassured by the images, and especially by the finding that there was no fracture of the right shoulder joint.

13. [245]

    Dr Percy also reviewed the handwritten letter from Dr Lee of the plastics clinic. It was addressed “To Whom It May Concern”, and stated that the plaintiff had been reviewed at the plastics clinic on 28 September 2010 and that Dr Lee had told the plaintiff that the skin graft to the right forearm was taking well, and the right leg donor site was healing well.

14. [246]

    Dr Percy said that he had a further conversation with the plaintiff to the following effect:

15. [247]

    Dr Percy said that he believed the plaintiff understood that he was unable to manage her shoulder injury, and that she needed to be seen by a shoulder expert. He said that he believed she would re-contact Dr New.

16. [248]

    Dr Percy knew Dr Charles New to be a very competent general orthopaedic specialist who, in his capacity as orthopaedic surgeon, had served in the Australian Armed Forces. As Hawkesbury and Nepean Hospitals were well out of Dr Percy’s usual referral area, he did not know any of the other visiting specialists that attended there. However, Dr New did consult in his local Hills area and had operated on some of his patients with good results.

17. [249]

    Dr Percy then reviewed the plaintiff’s wounds and her right shoulder injury. Her right forearm wound was healing well. It was dry, save for three or four small patches which were slightly moist. He was not concerned, as neither that wound nor the right thigh graft site showed signs of infection.

18. [250]

    Dr Percy examined the plaintiff’s right shoulder. There was still some marked bruising and swelling compared to the left shoulder. Her range of movement in the right shoulder was also somewhat limited. Testing rotator cuff action showed that she could actively abduct to only 40 degrees, that her forward rotation/flexion was only up to 20 degrees, and that her passive abduction was up to 110 degrees.

19. [251]

    Dr Percy considered that the plaintiff’s restricted movements were probably due to some residual swelling and inflammation in the right shoulder, although it was possible the plaintiff also had a tendon or muscle injury. Dr Percy asked the plaintiff about her pain. She said to him words to the following effect:

20. [252]

    Dr Percy recalled that the plaintiff had driven herself to his rooms on the morning of her consultation. She did not ask for and was not prescribed any analgesics. She was not attending physiotherapy, and Dr Percy said he would not have encouraged her to do so until she had received advice from an orthopaedic specialist. Dr Percy prescribed Mobic 15 mg daily to help reduce the inflammation and swelling, and hopefully increase her range of movement. He considered the medication to be an interim option until she was seen by Dr New for further investigation and treatment advice. He also prescribed Temazepan to help the plaintiff sleep. This prescription was in accordance with her medical history of anxiety, and was not out of the ordinary for her care.

21. [253]

    Dr Percy then had a discussion with the plaintiff to the following effect:

22. [254]

    Dr Percy then made the following handwritten notes in the plaintiff’s records:

23. [255]

    Critically, his clinical notes contain a contemporaneous entry concerning the plaintiff’s attendance to an orthopaedic surgeon.

24. [256]

    In cross examination, the plaintiff accepted that on 14 October 2010, much of what Dr Percy described in the above clinical note occurred. Dr Percy examined her, including her wounds; asked her to demonstrate her range of movement of the right arm and shoulder; and prescribed Mobic and Temazepam. The plaintiff accepted that Dr Percy told her to limit her range of movement. Dr Percy’s notes contain more details of the first consultation than the plaintiff was able to describe in her first statement (Ex A [54]-[56]).

25. [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.

26. [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.

27. [259]

    Associate Professor Vincent Roche, Dr Ken Dobler and Dr David Wai, all general practitioners, gave conclave evidence and prepared a joint report dated 9 August 2018 and gave conclave evidence on 13 September 2018.

28. [260]

    Dr David Wai is a general practitioner who graduated in 1993 from University of Sydney, and who currently works in a medical practice in the Sydney CBD. He emphasised during the conclave evidence that he was trained to make early diagnoses with patients, because later diagnoses may result in adverse outcomes to both the patient and the treating professional (T 679.22-25). Associate Professor Roche has been a general practitioner for 32 years, and teaches at Wollongong University (T 681.12-31). Dr Dobler graduated in 1986, and has been a medical officer at Westmead Hospital and Hunter Area Health Service. He has been a general practitioner at Cessnock since 1992, and is responsible for teaching Dr Wai’s generation of medical professionals (T 688.23-26).

29. [261]

    Their joint report with regards to the 14 October 2010 appointment is as follows:

30. [262]

    Counsel for Dr Percy submitted that the Court ought to accept that his advice to the plaintiff on 14 October 2010 about her injury and circumstances was in accordance with the standard required by peer professional opinion. Counsel for Dr Percy further submitted that there was no evidence that any hospital local to the plaintiff had the facility of an orthopaedic outpatients department.

31. [263]

    They agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 14 October 2010 was appropriate, and that it was in accordance with peer professional opinion that Dr Percy did not diagnose a rotator cuff injury on 14 October 2010.

32. [264]

    In general, Dr Wai’s evidence differed from that of Associate Professor Roche and Dr Dobler. Dr Wai said that as a younger general practitioner, he was trained to make a diagnosis quickly, rather than wait to see what happens. All three agreed that the plaintiff’s shoulder was improving with the passage of time up until 11 November 2010.

33. [265]

    All general practitioner conclave experts agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 14 October 2010 was appropriate. They all agreed that it was in accordance with peer professional opinion that Dr Percy did not diagnose a rotator cuff injury on that date.

34. [266]

    Counsel for Dr Percy submitted that the Court ought to accept that Dr Percy’s advice to the plaintiff on 14 October 2010 about her injury and circumstances was in accordance with the standard required by peer professional opinion (T 689.39):

35. [267]

    The medical experts gave the following evidence (T 689.39):

36. [268]

    I prefer the evidence of Associate Professor Roche and Dr Dobler to that of Dr Wai where he differs in his opinion.

37. [269]

    When asked specifically about diagnosis, Associate Professor Roche and Dr Dobler said that referral for ultrasound or MRI would not have been appropriate. Both agreed that imaging ought not to have been undertaken in light of the fact that the plaintiff had been referred to Dr New. In the conclave report they had said (Ex D2/3):

38. [270]

    Associate Professor Roche observed that any imaging ordered by Dr Percy was more than likely to be repeated by the orthopaedic specialist, giving rise to an unnecessary and costly repetition of imaging studies. Associate Professor Roche observed that to order imaging which did not progress the plaintiff’s management would have been inappropriate (T 680.39; T 681.24).

39. [271]

    Professor Murrell agreed with Associate Professor Roche’s observations (T 727.39- 46):

40. [272]

    Dr Wai stated that he would have referred the plaintiff to the emergency department of a hospital. However, Associate Professor Roche and Dr Dobler disagreed, as her sub-acute right shoulder injury would have been categorized by an emergency department as only triage severity 4 or 5 (T 699.18-30). Associate Professor Roche’s evidence was that the likely outcome of referring the patient to the hospital as an outpatient was that she would have been sent back to her GP, or referred again to see Dr New (T 686.9-31). Associate Professor Roche described the process as akin to a revolving door.

41. [273]

    Dr Dobler’s evidence is to the same effect as that of Associate Professor Roche (T 699.18-30):

42. [274]

    It is my view that Dr Percy’s care and treatment of the plaintiff on 14 October 2010 was widely accepted by peer professional opinion as competent professional practice. The Court ought to accept without reservation that the opinions of Associate Professor Roche and Dr Dobler were rational and should be preferred over that of Dr Wai.

28 October 2010 – second appointment (39 days post injury)

1. [275]

   The plaintiff next saw Dr Percy for an appointment on 28 October 2010. As before, the plaintiff drove to this appointment.

2. [276]

   The plaintiff says that at her second appointment, she told Dr Percy that her shoulder was still very painful when she tried to move it, and even worse at night. Dr Percy examined her arm and prescribed Tramadol 50mg, a very strong pain killer that she had never used before. She says that she found this drug awful and that she felt it would not have been safe for her to drive when she took it. Dr Percy also gave her another script for Temazepam 10mg. After writing these scripts, Dr Percy asked her to come back and see him again in two weeks’ time, so she made my appointment for 11 November 2010. The plaintiff said she went straight to the chemist to fill both these scripts on her way home.

3. [277]

   Dr Percy says that once the plaintiff entered the consultation room, they had a conversation to the following effect:

4. [278]

   Dr Percy then examined the plaintiff’s wounds. He noted that the grafted ulcer on her right forearm had healed and was not weeping. There was no redness, purulent discharge, bad odour or other signs of infection. He also examined the plaintiff’s right shoulder injury. He saw that the swelling had decreased from their previous consultation, and that the bruising had almost entirely resolved. Dr Percy then tested her range of movement and rotator cuff function. The plaintiff could actively abduct her right shoulder through a normal range to 180 degrees, although she felt some discomfort from 130 to 180 degrees. She could also forward rotate to 160 degrees although with some slight discomfort from 90 to 160 degrees.

5. [279]

   Dr Percy was satisfied with the plaintiff’s progress. She exhibited positive improvement from the previous consultation, despite failing to see Dr New. Dr Percy was reassured by the plaintiff’s range of motion. If she had damaged any tendons or muscles in her right shoulder joint, it appeared that they were gradually improving. He was also satisfied that there was an improving soft tissue injury and that the shoulder tendons were intact. However, as the shoulder examination was still not completely normal, he still felt that there could be some partial unhealed tearing in the tendon, and that she needed to continue to treat her shoulder carefully. The plaintiff’s statement that her shoulder was improving at this point accords with Dr Percy’s account of his examination.

6. [280]

   After examining her shoulder, Dr Percy performed a general examination that is unnecessary to detail further.

7. [281]

   After he completed his examination, Dr Percy had a conversation with the plaintiff in which he said words to the following effect:

8. [282]

   At the first consultation on 14 October 2010, the plaintiff at the told Dr Percy that she had a referral to Dr New. He was still under the impression that she had the referral, as she had not told him anything to the contrary.

9. [283]

   By her second consultation, the plaintiff thought that her shoulder was recovering well and would continue to heal. Dr Percy still wanted her to be seen by an orthopaedic surgeon. He felt that even though there had been improvement and that it appeared that the tendons were intact, he could not exclude the possibility that she had suffered a partial tear. He also wanted her to seek orthopaedic specialist advice as to when she could resume normal farm duties.

10. [284]

    Dr Percy then made the following handwritten note in the plaintiff’s records (Ex D1/5 at 657):

11. [285]

    Although Dr Percy gave evidence that he greeted the plaintiff by asking her how her wounds and shoulder were progressing, and asking her whether she had sought an appointment with Dr New for further investigation and treatment, he has not specifically recorded this conversation in his clinical notes. Certainly he has recorded that despite not going to the orthopaedic surgeon, the plaintiff’s right shoulder was more comfortable and mobile.

12. [286]

    The plaintiff had difficulty recalling the detail and content of the 28 October 2010 consultation, and thought that she had reinjured her arm before it. That recollection does not accord with Dr Percy’s medical records.

13. [287]

    When commenting on the 28 October 2010 consultation, Dr Cummine gave the opinion that the plaintiff exhibited “near normal function”.

14. [288]

    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.

15. [289]

    The joint report of Associate Professor Roche, Dr Dobler and Dr Wai also addressed the 28 October 2010 appointment. The relevant questions are as follows:

16. [290]

    Associate Professor Roche expressed the opinion that Dr Percy’s 28 October 2010 examination of the plaintiff revealed she was close to normal. She exhibited full abduction and reasonable range of movement. As the plaintiff was telling Dr Percy that her symptoms were much improved, Dr Roche gave the opinion that referring or organising an appointment for her to see the orthopaedic specialist was still the best way forward. There was no urgency to do an ultrasound or an MRI for these reasons (T 692.36-42).

17. [291]

    For the same reasons identified in respect of the 14 October 2010 consultation, Dr Roche gave evidence that it would not have been appropriate on 28 October 2010 to refer the plaintiff for an ultrasound, or to a hospital or bulk-billing orthopaedic specialist.

18. [292]

    Dr Wai maintained his opinion that Dr Percy should have referred the plaintiff to the emergency department of a hospital, where she would have presented with a sub-acute right shoulder injury likely to have been categorized as triage severity 4 or 5. However, for the reasons identified above in respect of the 14 October 2010 consultation, Associate Professor Roche and Dr Dobler stated that referral to the emergency department would likely have been of no utility, and that the suggestion that Dr Percy was required to engage in such a course ought to be rejected. For the same reasons I gave above with respect to this “revolving door” scenario, I prefer the evidence of Associate Professor Roche and Dr Dobler.

19. [293]

    All general practitioner conclave experts agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 28 October 2010 was appropriate, and that it was in accordance with peer professional opinion as competent professional practice for Dr Percy to not diagnose a rotator cuff injury. It is therefore my view that Dr Percy’s care and treatment of the plaintiff on 28 October 2010 was widely accepted by peer professional opinion as competent professional practice, for the same reasons identified earlier in respect of the 14 October 2010 consultation.

11 November 2010 – third appointment (53 days post injury)

1. [294]

   The plaintiff’s next consultation with Dr Percy was on 11 November 2010.

2. [295]

   The plaintiff says that at her third post-injury appointment with Dr Percy, she showed him her arm, which exhibited some slight bruising down her biceps. The bruising was not very dark, yellowish, and located about two or three inches below the top of her shoulder. She said that there was no bruising on the side or back of her upper arm, but some on the front, and also towards the inside of her arm against her body.

3. [296]

   The plaintiff said that when Dr Percy saw her arm, he told her, “You have set yourself back three months. You should not be using your arm.” The plaintiff replied, “I have actually not been using my arm, but just tried to lift my hand/arm up and out to pat my foal on the neck”. She said that Dr Percy simply continued to insist that she had “set the healing back”.

4. [297]

   The plaintiff had been doing the “J” exercises religiously. She said that her healing had progressed to the point that although she could not lift her right arm on its own, she had been able to lift her right hand up to head height with the help of her left hand. She said that on the day she re-injured herself before the 11 November 2010 appointment, she had absent-mindedly tried to lift her right hand from about her waist height up and out to pat her foal. She said that it hurt, and so she swung it around a couple of times with the pain. She said that the pain lingered for only around 20 to 30 seconds and receded.

5. [298]

   The plaintiff said that Dr Percy wrote her no further scripts at the 11 November 2010 appointment, and that he told her words to the effect of, “I don’t want to see you again for another 4 weeks”. She made her next appointment before she left his rooms for 9 December 2010.

6. [299]

   The plaintiff had limited recollection of the content of this consultation. She gave the following evidence (T 349.37-39; T 350.23-26):

7. [300]

   When the plaintiff was asked, “Do you remember Dr Percy asking you if you’d been to see the orthopaedic surgeon yet”, she replied, “He never, ever mentioned it again since the first appointment I went to on 14 October.”

8. [301]

   The exchange continued as follows (T 350.10-15):

9. [302]

   Dr Percy’s clinical notes are extensive, and do not reflect that a “quick consultation” took place.

10. [303]

    Earlier in cross examination, the plaintiff attempted to play down the significance of the further injury with which she presented on 11 November 2010 (T 262.5-9):

11. [304]

    Dr Percy’s evidence was that when the plaintiff attended her 11 November 2010 appointment, he immediately saw that something was wrong with her. She looked emotionally and physically fragile and on the verge of tears. He had a conversation with the plaintiff to the following effect:

12. [305]

    Dr Percy said that he was dismayed that the plaintiff had engaged in farming activities of this kind, despite his advice to the contrary. On examination, the plaintiff showed significant bruising from her right shoulder down to her elbow. Her right shoulder was also moderately swollen in comparison to the left. The swelling was worse than on the previous occasion, despite the fact that the plaintiff was still taking Mobic anti-inflammatory tablets. As a result of this apparently new injury, her right shoulder was more uncomfortable and did not have the range of movement that she had shown on her previous consultations. Dr Percy tested the plaintiff’s range of movement and rotator cuff function. Her abduction was limited to 140 degrees, and was painful from 50 degrees upwards. Her forward flexion was limited to 160 degrees, and was also painful from 30 degrees upwards.

13. [306]

    Following the examination, Dr Percy said he had a further conversation with the plaintiff to the following effect:

14. [307]

    Dr Percy recalled speaking to her firmly. At this point, she started to cry and said words to the following effect:

15. [308]

    The plaintiff denies that this conversation took place.

16. [309]

    During this conversation, Dr Percy said that the plaintiff appeared to be under significant stress and suffering from anxiety and depression. His opinion was that these circumstances were overwhelming and distracting her from dealing sensibly with her shoulder injury. Dr Percy and the plaintiff discussed whether she was considering suicide as a way to escape her problems, and she indicated to him that she had minimal suicidal ideation and had made no plans to end her life prematurely. He remained concerned about her mental health generally and worried that she was not making positive decisions for her wellbeing.

17. [310]

    Dr Percy suggested to the plaintiff that she was depressed, and suggested that she trial an anti-depressant to help with her symptoms. The plaintiff refused. She told Dr Percy that she had used Zoloft, an anti-depressant medication, in the past and would prefer not to restart it at present. She stated that when she had used Zoloft in the past, although the medication didn’t make her feel any worse, it hadn’t made her feel any better. She said she had also used the anti-depressant medication Aurorix in the past, but that although she noted that improved her mood, she stopped taking it because it increased her blood pressure.

18. [311]

    Dr Percy said that his priority was to try to address the plaintiff’s mental health. He told the plaintiff that instead of medication, she could pursue psychological counselling. He told her that counselling would give her the opportunity to talk through her problems, and would hopefully make her feel better and help her make better decisions. She agreed, and Dr Percy filled out a general practitioner mental health care plan which provided for a referral to Patricia Santosi, a local psychologist, for six Medicare-subsidised sessions of counselling and treatment. He provided the referral on the basis of the plaintiff’s anxiety and depression, which he attributed mainly to her poor decision making and financial difficulty. In his referral to Ms Santosi, Dr Percy noted that the plaintiff’s problems stemmed from her unwisely taking out bank loan(s) over the preceding five years, and over extending herself financially by spending on things that she had not divulge to him.

19. [312]

    According to Dr Percy, the plaintiff’s spending had created a debt that she was unable to repay with her horse breeding business. Dr Percy had always understood that the plaintiff was a proficient horse rider and carer. His opinion was that her fear that she might lose her home, and the fact that she had been unsuccessful in business, had eroded her self-esteem, which was further undermined by two failed marriages. Despite telling Dr Percy that she was having financial problems, she did not tell him that she was on any government pension. For these reasons, Dr Percy’s referral that the plaintiff seek counselling was very much aimed at trying to improve both her decision making and her general self-esteem.

20. [313]

    Dr Percy asked the plaintiff how the wounds on her right forearm and thigh were healing. She said they were fine. He examined them and found that both seemed to be healing well. There was no inflammation, no discharge and no redness. He also checked the plaintiff’s blood pressure.

21. [314]

    It was Dr Percy’s opinion that the plaintiff needed to address her current depressive symptoms and emotional fragility before she focused on her shoulder. Dr Percy did not think she would have any motivation to undergo assessment or investigation of her shoulder while she remained in such a depressed and emotionally precarious state. It appeared evident to him that her psychological symptoms were having an effect on her decision making.

22. [315]

    At the 11 November appointment, Dr Percy said he was still under the impression that the plaintiff had a referral to Dr New. Dr Percy also considered that he would be in a better position to assess the plaintiff’s shoulder, and especially its range of movement, in several weeks after the recent aggravation was less fresh. He told the plaintiff that he wanted to review her in two weeks’ time, and that he wanted her to consult Ms Santosi in the interim. He said that at their next consultation, she could bring him up to date with her counselling session with Ms Santosi and that the next step with her shoulder management would be to have an ultrasound, which would be funded by Medicare. After the ultrasound, they could make decisions about likely orthopaedic specialist consultation. He also told the plaintiff that if at their next consultation she showed remarkable improvement and, although unlikely, a satisfactory ultrasound result, she might even be able to pursue physiotherapy.

23. [316]

    Dr Percy advised the plaintiff to keep taking the Mobic, Temazepam and Tramal as previously prescribed. He also stressed that she needed to rest her shoulder and to only move it gently within the limits of her comfort and pain.

24. [317]

    The plaintiff’s version of events as to the mechanism of the further injury is not easily reconcilable with Dr Percy’s notes, in which he recorded the following:

25. [318]

    On 11 November 2010, the plaintiff presented to Dr Percy with a further injury.

26. [319]

    There was some dispute as to whether Dr Percy wrongly attributed the use of a mattock to break up impacted stable manure to the plaintiff. The plaintiff gave evidence that she had not read Dr Percy’s statement. She had read some of Dr Percy’s notes where he wrote that she had told him that she used a mattock. She does not know how he came to misunderstand what she said.

27. [320]

    Sheila Jackson, a friend of the plaintiff, said that within the first 10 days of November 2010, she went to the plaintiff’s property with a mattock to help her clean her stables so as to save her from using her right arm. As far as Ms Jackson was aware, the plaintiff did not own a mattock at that time. Ms Jackson said that after using her mattock to dislodge the impacted horse manure, she realised that the plaintiff needed help on a more regular basis, so she increased her visits to once every two to three days. She said that she brought the plaintiff food, did her laundry and cleaned her stables. She said that the stables needed to be cleaned every few days. Ms Jackson engaged in this routine for about eight weeks until Christmas 2010 (Ex E, Tab B).

28. [321]

    The plaintiff was very impressed that her friend, who was then aged 84, was able to carry out the work with the mattock. However, the plaintiff said that Ms Jackson used the mattock in her stables on only one occasion. Ms Jackson provided a statement and gave brief evidence which corroborated that of the plaintiff. I accept that Ms Jackson was mistaken in her claim to have driven the plaintiff to hospital after the horse attack, when in fact the plaintiff was taken by ambulance. More broadly, I have difficulty reconciling the evidence of the plaintiff and Ms Jackson with that of Dr Percy.

29. [322]

    I accept that the plaintiff told Dr Percy that she re-injured her shoulder by performing manual work in her stables. I do not accept that Dr Percy fabricated the entry, “Has reinjured right shoulder in attending to stable maintenance – has been shovelling stable manure and has been using mattock to break up impacted stable manure and has developed ® shoulder bruising”. He may have wrongly attributed the use of a mattock to the plaintiff when in fact only Ms Jackson used the mattock to break up impacted stable manure. Nonetheless, I do accept that the plaintiff told Dr Percy that she reinjured her shoulder by performing stable maintenance.

30. [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.

31. [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.

32. [325]

    It is my view that the injury was not the product of mattock work, but that it was caused by the simple combination of a quick movement and a sudden stop, which could have occurred when patting a foal as she described.

33. [326]

    The plaintiff gave the following evidence (T 418.9-31):

34. [327]

    Whether the plaintiff reinjured her right shoulder reaching to pat a foal or performing stable maintenance is not an issue on which much depends. What is relevant to the second defendant’s liability is that something physically significant occurred to the plaintiff’s right shoulder between 28 October 2010 and 11 November 2010.

35. [328]

    Whatever the position, Professor Sonnabend said that Dr Percy could not be criticised for his interpretation of the clinical signs and symptoms with which the plaintiff presented on 11 November 2010 (T 578.16-25):

36. [329]

    Professor Sonnabend accepted that something “fairly significant” occurred after 28 October 2010, and prior to 11 November 2010 (T 577.37; T 578.4).

37. [330]

    Professor Murrell expressed a different opinion to Professor Sonnabend in respect of the significance of the visible bruising of the plaintiff’s right upper arm on 11 November 2010. His view was as follows (T 726.40-46):

38. [331]

    When pressed on the issue, Professor Murrell gave the following evidence (T 733.40-T 734.12):

39. [332]

    Professor Sonnabend, Dr Cummine and Dr Duke accepted that the plaintiff’s condition on 11 November 2010 represented a significant change in the presenting circumstances of her injury (T 607.42-T 608.48). I also take it from the exchange quoted above that Professor Murrell acknowledged that the plaintiff had a substantial injury that extended and enlarged the rotator cuff tear. Dr Cummine disagreed with Professor Murrell that there was a full thickness tear at the initial dislocation.

40. [333]

    When comparing the plaintiff’s presentation on 28 October 2010 with her presentation on 11 November 2010, Dr Cummine gave the following evidence (T 578.46-T 579.26):

41. [334]

    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.

42. [335]

    The joint report of Associate Professor Roche, Dr Dobler and Dr Wai with regards to the 11 November 2010 consultation is as follows:

43. [336]

    It is important to assess the circumstances of the 11 November 2010 consultation on the basis that Dr Percy had been told by the plaintiff that she had a referral to see Dr New.

44. [337]

    All general practitioner conclave experts agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 11 November 2010 was appropriate (Ex D2/3, [3.3]) and that it was in accordance with peer professional opinion for Dr Percy to not diagnose a rotator cuff injury on that date.

45. [338]

    Associate Professor Roche and Dr Dobler both agreed that on 11 November 2010, it was not necessary to order imaging in light of the acute injury with which the plaintiff presented. The conclave opinion of Associate Professor Roche and Dr Dobler gave the following opinion (Ex D2/3, 144 at [3.2]):

46. [339]

    Counsel for the second defendant submitted that the Court ought to accept that Dr Percy’s advice to the plaintiff on 11 November 2010 was in accordance with the standard required by peer professional opinion (T 693.40-T 694.15; T 698.33-33):

47. [340]

    Counsel for Dr Percy submitted that Dr Wai’s criticism of Dr Percy’s 11 November 2010 referral of the plaintiff to Ms Santosi exceeds the bounds of the plaintiff’s case. However, counsel also noted that Dr Wai’s criticism highlights his unrealistic approach to the question of what was reasonably required in the care of a patient. Dr Percy argued that the evidence of Dr Wai ought to be disregarded.

48. [341]

    I prefer the opinions of Associate Professor Roche and Dr Dobler to that of Dr Wai. For the same reasons identified with respect to the 14 October 2010 consultation, it is my view that referring the plaintiff to a hospital’s emergency department with a sub-acute right shoulder injury, which at this point would have been categorized as triage severity 4 or 5, would have been of no utility. As outlined earlier, the evidence is that she would likely have been sent back to Dr Percy or referred again to Dr New.

49. [342]

    For the reasons identified above in respect of the 14 October 2010 and 28 October 2010 consultations, Dr Percy’s care and treatment of the plaintiff on 11 November 2010 was in accordance with the standard required by peer professional opinion as competent professional practice.

9 December 2010 – fourth appointment (81 days post injury)

1. [343]

   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.

2. [344]

   The plaintiff had limited recollection of the consultation. She described what she remembered as follows (T 374.12-28):

3. [345]

   Dr Percy said that he next saw the plaintiff four weeks after 11 November 2010 on 9 December 2010, two weeks later than he had requested. Prior to seeing the plaintiff and in accordance with his usual practice, he reviewed his previous few entries of his notes in her file.

4. [346]

   During the consultation, Dr Percy had a conversation with the plaintiff in words to the effect:

5. [347]

   Dr Percy recalls that he was very disappointed that the plaintiff had not gone to see Ms Santosi. He was also concerned about her apparent sense of priorities, as she was likely aggravating any tendon injury by performing property maintenance tasks.

6. [348]

   Dr Percy then examined the plaintiff’s right shoulder and tested its range of movement. The bruising had almost totally resolved but there was still swelling over the deltoid region of the shoulder. The plaintiff could actively abduct to only 130 degrees and could only actively forward rotate to 25 degrees. These tests of rotator cuff function showed a deterioration in function since her previous visit. Dr Percy then took the opportunity to test the plaintiff’s blood pressure and pulse as well.

7. [349]

   Because the plaintiff’s shoulder injury had worsened since 11 November 2010, Dr Percy considered that she had probably suffered a tear of her shoulder tendons and/or muscle.

8. [350]

   Following his examination, Dr Percy had a further conversation with the plaintiff in words to the following effect:

9. [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.

10. [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 next steps in her treatment plan and potentially schedule a consultation.

11. [353]

    Dr Percy thereafter made the following contemporaneous handwritten note in the plaintiff’s records (Ex D1/5, p 658):

12. [354]

    The plaintiff’s version is not easily reconcilable with the content of Dr Percy’s notes, which once again make direct reference to her engagement in farm maintenance, her failure to see Ms Santosi and his referral for an ultrasound.

13. [355]

    The plaintiff did not pursue Dr Percy’s referral to Ms Santosi or to the ultrasound in a timely manner.

14. [356]

    Dr Percy said that on 24 January 2011, the plaintiff telephoned him to request another ultrasound referral, as she had lost the one he gave her on 9 December 2010. On 24 January 2011, he wrote a replacement referral at her request.

15. [357]

    The joint report of Associate Professor Roche, Dr Dobler and Dr Wai with regards to the 9 December 2010 appointment is as follows:

16. [358]

    As with the previous consultations, is important to assess the circumstances of the 9 December 2010 consultation on the basis that the plaintiff continued not to pursue a referral to see Dr New.

17. [359]

    All general practitioner conclave experts agreed that Dr Percy’s examination and testing of the plaintiff’s right shoulder on 9 December 2010 was appropriate (Ex D2/3, [4/3]), as was his failure to diagnose a rotator cuff injury. Further, all general practitioner conclave experts agreed that referral for MRI would not have been appropriate on 9 December 2010.

18. [360]

    It is not in dispute that the plaintiff was referred for an ultrasound on 9 December 2010. This evidence was not challenged in cross examination.

19. [361]

    Associate Professor Roche and Dr Dobler both agreed that Dr Percy’s decision to refer the plaintiff for ultrasound imaging on 9 December 2010 was appropriate, as she had made it plain that she was not going to see Dr New (T 692.36-50):

20. [362]

    Dr Wai’s suggested referral of the plaintiff to the emergency department of a hospital, on the basis of her mental health issues and sub-acute right shoulder injury, triage category 4 or 5, would likely have been of no utility. Associate Professor Roche again observed that the likely outcome would have been for the emergency department to have sent the plaintiff back to her GP, or again told her to see Dr New. Dr Dobler agreed with Associate Professor Roche.

21. [363]

    As to the treatment of the plaintiff’s mental health issues, Dr Dobler’s evidence was that Dr Wai’s opinion was unrealistic (T 694.25-40):

22. [364]

    Dr Percy submitted that aspects of the opinion of Dr Wai concerning the 9 December 2010 consultation exceed the bounds of the plaintiff’s pleaded claim and ought to be disregarded and referred to r 31.26 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff made no application to amend her claim.

23. [365]

    In any event, I prefer the evidence of Dr Roche and Dr Dobler to that of Dr Wai. It is my view that Dr Percy, by referring the plaintiff for an ultrasound imagining on 9 December 2010, acted in a manner that was widely accepted by peer professional opinion as competent professional practice.

24 January 2011 – further ultrasound referral (127 days post injury)

1. [366]

   The plaintiff and Dr Percy agree that in January 2011, she telephoned his rooms and requested a referral for the ultrasound. Dr Percy says that she said words to the effect:

2. [367]

   He was disappointed at the plaintiff’s ongoing complacency towards her shoulder injury by waiting over six weeks to request a replacement for her previously-ordered ultrasound. Dr Percy was prepared to provide a replacement referral form and advised her, in accordance with usual practice, that she could collect it from the front desk. He was hopeful, notwithstanding the Australia Day public holiday, that she might have the ultrasound within the week. The plaintiff instead requested that he post the referral, which he did that day. Dr Percy remembered feeling concerned that because of the delay since the injury, the plaintiff might no longer be a candidate for successful surgical intervention.

3. [368]

   Dr Percy made the following handwritten note:

4. [369]

   Counsel for the plaintiff did not ask Dr Percy any questions concerning the events of 24 January 2011. As Dr Percy had a contemporaneous note of the telephone call, this explanation accords with the fact that he wrote a referral for an ultrasound on 9 October 2010. I prefer his evidence to that of the plaintiff.

5. [370]

   On Thursday 3 February 2011, the plaintiff attended her appointment at PRP Radiology, where Dr Duckworth performed her right shoulder ultrasound. She says that not long into the scan or shortly thereafter, one or two doctors rushed in and said to her, “You have the most terrible injury. You have to get to an orthopaedic surgeon straight-away.” She said she was “absolutely shocked”.

6. [371]

   The plaintiff gave the following evidence concerning the consultation at PRP Radiology (T 137.40-T 138.19):

7. [372]

   On 4 February 2011, Dr Percy viewed the results of that ultrasound. The test was reported as showing (Ex D1/5, Tab 14):

8. [373]

   By the time the plaintiff had the ultrasound which confirmed significant right shoulder tendon injury, well over four months had passed since her initial injury, and three months since its aggravation and possible new injury by either petting her foal or performing stable maintenance. Her problem could no longer be regarded as an emergency, but Dr Percy was still eager to see the plaintiff within the week to further discuss the ultrasound and attempt to persuade her to seek orthopaedic specialist advice.

9. [374]

   Dr Percy was about to go on annual leave for two weeks beginning at the end of that day, but he still felt the plaintiff should be seen in the next week if it was suitable for her. Hence, when she rang him for her ultrasound results that day, he asked his staff to make a priority appointment for her to see his regular locum, Dr David Shenstone, at the beginning of the following week.

10. [375]

    Dr Percy wrote a note to Dr Shenstone on the bottom of the ultrasound report advising him that the plaintiff would require a referral to either Dr David Duckworth or Dr Desmond Bokor, both orthopaedic specialists. The note stated:

11. [376]

    On 8 February 2011, Dr Shenstone saw the plaintiff. After discussing the ultrasound results and Dr Percy’s recommendations, he provided the plaintiff with a referral to Dr Bokor at her request. On 9 February 2011, the plaintiff told Dr Shenstone that when she called Dr Bokor’s rooms, his secretary told her that he did not do any public work. She asked Dr Shenstone if he would instead refer her to Dr Duckworth, which he did. The plaintiff saw Dr Duckworth on 24 February 2011.

12. [377]

    On 1 March 2011, Dr Percy received and reviewed Dr Duckworth’s report and made the following comments in his records:

5 April 2011 – fifth and final appointment

1. [378]

   On 5 April 2011, the plaintiff had her last appointment with Dr Percy. She had not seen him since 9 December 2010. He prescribed medication. The plaintiff told Dr Percy she had not yet attended physiotherapy. She admitted that Dr Percy must have mentioned Dr Duckworth, but was unable to recall anything specific.

2. [379]

   The plaintiff said that one of the first things she said to Dr Percy at that appointment was, “The Hospital should have done an ultrasound”. She remembers Dr Percy responding, “It’s your fault, not the hospital’s. You did this looking after those horses.” When she tried to correct him, he cut her off and said, “Don’t fight with me. You tore your tendons looking after those horses.”

3. [380]

   Within a day or so of returning home from her 5 April 2011 consultation, the plaintiff made some notes of what Dr Percy had said. A transcription of what she recorded as Dr Percy’s comments are as follows:

4. [381]

   Dr Percy says that in accordance with his usual practice and prior to seeing the plaintiff, he reviewed the previous few entries in the plaintiff’s notes.

5. [382]

   Dr Percy then had a conversation with the plaintiff in words to the effect:

6. [383]

   He thought that it was remarkable that she did not refer to her shoulder disability as a cause of her anxiety.

7. [384]

   He asked whether she had been to see Ms Santosi. She said she had not. He does not recall that she provided any good reason. He encouraged her to see Ms Santosi and make use of the Medicare-funded mental health care plan. The plaintiff said she did not recall this conversation.

8. [385]

   They again discussed the possibility of using anti-depressant medication, but for reasons given before, the plaintiff said she would still prefer not to use antidepressant therapy. She assured Dr Percy that she did not feel suicidal. She said she was happy to continue to take medication to help reduce her anxiety at night and to sleep.

9. [386]

   Dr Percy told the plaintiff that he had received Dr David Duckworth’s report dated 24 February 2011, and they discussed his recommendations. Dr Percy confirmed with the plaintiff that Dr Duckworth thought surgery was not an option and had recommended physiotherapy instead. Dr Percy asked how the physiotherapy was going and whether her shoulder symptoms had improved at all. He advised the plaintiff that she should try and make the effort to go to physiotherapy, as it was the only remaining avenue through which she could regain some of her strength and shoulder mobility.

10. [387]

    Dr Percy examined the plaintiff’s right shoulder. Her abduction was still limited to 130 degrees. The abduction test of rotator cuff function was similar to the tests he had conducted in December 2010 and by Dr Duckworth in February 2011. Dr Percy noted that there had been no further deterioration, but there had also been no improvement.

11. [388]

    He told the plaintiff that he was happy for her to continue taking her medication at night to help her sleep. However, he encouraged her to see Ms Santosi to address her psychological symptoms, as well as the physiotherapist to help with her shoulder.

12. [389]

    Dr Percy told the plaintiff that he would review her again to check up on her progress after she had attended either Ms Santosi or the physiotherapist, or earlier if she had any concerns or if her condition was not improving or deteriorating. The plaintiff agreed with this course.

13. [390]

    Dr Percy then made the following handwritten notes in the plaintiff’s records:

The result

1. [391]

   When I consider Dr Percy’s care with respect to the plaintiff’s consultations on 10 October 2010, 28 October 2010 and 11 November 2010, I do so having accepted his evidence that the plaintiff told him she had a referral to see an orthopaedic specialist, and that he had informed her that could not offer the same level of specialist care. By the plaintiff’s fourth appointment on 9 December 2010, I accept that Dr Percy had determined that she did not intend to see the orthopaedic specialist, and so he provided a referral for an ultrasound. She lost it. He provided her with another. At the plaintiff’s final appointment on 5 April 2011, she and Dr Percy discussed Dr Duckworth’s referral for physiotherapy, which she was not attending.

2. [392]

   As stated, s 5O(1) of the Civil Liability Act states that a professional is not liable in negligence for the provision of care which was widely accepted in Australia by peer professional opinion as competent professional practice. Dr Percy’s alleged failures must therefore be assessed within this legislative standard. For the reasons provided earlier in relation to each appointment, I prefer the views concerning the standard of competent care provided by Associate Professor Roche and Dr Dobler to those of Dr Wei where his differ. Regardless, s 5O(4) of the Civil Liability Act states that peer professional opinion does not have to be universally accepted to be considered widely accepted.

3. [393]

   For these reasons, I am satisfied that Dr Percy has discharged his onus under s 5O(1) of demonstrating that his care in every appointment was to the standard accepted by peer professional opinion as competent professional practice. It is therefore my view that he did not breach his duty of care to the plaintiff. This part of her case fails.

4. [394]

   Thus, both defendants have established on the balance of probabilities complete defences under s 5O of the Civil Liability Act. That means that as against the plaintiff, I order judgment in favour of both defendants. While I do not need to address the issues of causation, contributory negligence, whether the plaintiff’s action against the second defendant is statute barred and damages, I will do so briefly.

Causation

1. [395]

   I shall briefly address the issue of causation.

2. [396]

   The common law test for causation is no longer relevant. It has been replaced by s 5D of the Civil Liability Act: see Adeels Place Pty Ltd v Moubarak [2009] HCA 48 (“Adeels Place”) at [41]-[44].

3. [397]

   Section 5D of the Civil Liability Act reads:

4. [398]

   Section 5E of the Civil Liability Act addresses the onus of proof and provides:

5. [399]

   Section 5D prescribes the legal test to be applied in the determination of the question. The framework within s 5D is the division of the enquiry into "the distinct elements of factual causation and scope of liability…”

6. [400]

   In order to succeed, the plaintiff must show that it is more probable than not that, but for the breach, “particular harm” would not have been suffered. This involves two elements, “factual causation” and “scope of liability”: see Adeels Palace at [42]; Wallace v Kam [2013] HCA 19 at [12])

7. [401]

   Factual causation must first be established by the application of the “but for” test, which comprises the first hurdle for the plaintiff. The “but for” test requires the Court to be satisfied that the precaution, or relevant step, that it is alleged ought to have been taken would, on the balance of probabilities, have averted the harm suffered.

8. [402]

   The plaintiff pointed to the decision in Wallace v Kam, where the High Court stated at [16]:

9. [403]

   The plaintiff submitted that the harm which occurred in this case was a retraction of the ligaments in the plaintiff’s arm such that they could not be repaired. She submitted that that harm was directly related to the negligence of the defendants. The plaintiff argued that the medical evidence, particularly the views of Professor Sonnabend and Dr Duke, was that the permanent damage to her shoulder and right arm could not be explained other than by the damage to the rotator cuff, which she alleges was not repaired due to the defendants’ negligence.

10. [404]

    Dr Percy submitted that s 5D(1)(a) requires the determination of the probable course of events. The plaintiff has adduced no evidence sufficient to establish what the probable course of events would have been in this case.

11. [405]

    Dr Percy argued that where the plaintiff’s claim rests upon allegations of negligent omission framed in terms of a failure to take a step, such as to refer the plaintiff for ultrasound, MRI, specialist treatment or to a hospital, the “but for” test for causation is not made out by the suggestion of a possible outcome had an alternate course been taken.

12. [406]

    To establish factual causation, the plaintiff must prove that “the negligence was a necessary condition of the harm”: see Woolworths Ltd v Strong [2010] NSWCA 282 at [47]-[48]. Proof that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

13. [407]

    Dr Percy argued that the plaintiff’s case rests on the allegation that the defendants’ failure to refer her to a specialist caused a “delay” in treatment which led to irreparable injury. However, the second defendant argued that the plaintiff cannot establish that any breach of duty by Dr Percy made a material contribution to her condition. Dr Percy submitted that in light of Professor Murrell’s evidence, she cannot succeed on the issue of medical causation.

14. [408]

    Nepean Hospital argued that significant issues arise as to causation. In light of the plaintiff’s failure to act for almost a year on an earlier referral which Dr Percy provided to her for a colonoscopy, that there is every reason to accept that even if Dr Rannard or Dr Lee said more about the potential of a rotator cuff injury and explained to the plaintiff why she needed to see an orthopaedic surgeon, she would more likely than not have delayed pursuing an appointment. She was short of cash and her financial situation was dire by late 2010. Associate Professor Roche and Dr Dobler indicated that they were unaware of any bulk-billing specialists in their areas. Further, the plaintiff’s evidence was to the effect that she was only prepared to see a specialist who did not bulk bill if it was “urgent” (T 241.44). In no way could her situation be described as “urgent” in September or October 2010.

15. [409]

    In October or November 2010, Dr Percy referred the plaintiff to an orthopaedic surgeon and explained to her why it was important for her to see an orthopaedic surgeon. The defendants argued that the plaintiff’s conduct in October to December 2010 is evidence that she was exceedingly unlikely to act promptly on a referral or advice to see a specialist given by someone at Nepean Hospital.

16. [410]

    The first defendant further argued that even if the plaintiff had gone to an orthopaedic surgeon, a real issue arises as to whether she would have been prepared to undergo surgery. She had horses she wanted to train for sale, and she desperately needed money. Prior to any surgery, she would have been advised about the risk of standard adverse events like infection, the prospect of poor functional outcome and the inherent long period of recuperation and rehabilitation (T 567.40; T 568.42). Considering the plaintiff’s precarious financial situation as of late 2010, and given her determination to provide continuous care for her horses, the first defendant argued that the plaintiff would more likely than not have refused to undergo the surgery at that time and instead deferred it.

17. [411]

    The defendants raised two further issues as to causation. They are, first, whether the plaintiff’s right shoulder rotator cuff injury can still be successfully repaired; and second, the importance of time in treating the tear to the plaintiff’s right rotator cuff, including when the plaintiff would have had surgery but for the alleged negligence.

18. [412]

    Counsel for Dr Percy submitted that the plaintiff’s case proceeds on the basis that at the time the plaintiff saw him, time was of the essence. Dr Percy submitted that this Court ought to find that time was not running in the manner in which the plaintiff suggests, and that the plaintiff’s right shoulder remains operable.

19. [413]

    The defendants relied on the opinion of Professor Murrell to establish that the plaintiff’s shoulder can still be repaired. The plaintiff submitted that her primary statement of 25 July 2018 sets out the course of events from the injury on 19 September 2010. In the records of Nepean Hospital, there is an x-ray report that suggests rotator cuff insufficiency (Vol 2, Ex D1/5 Tab 25, p 448).

20. [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).

21. [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.

22. [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.

23. [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.

24. [418]

    Professor Murrell gave the following evidence (T 730.3-12):

25. [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.

26. [420]

    For these reasons, the defendants’ submission that the plaintiff’s rotator cuff injury can still be repaired fails.

27. [421]

    Even assuming that the plaintiff had chosen to undergo surgery immediately, there is the significant issue of when she, as a public patient, would have been scheduled for surgery if she had undergone an ultrasound and been diagnosed with a rotator cuff tear in the last quarter of 2010.

28. [422]

    Had the plaintiff been referred to and attended an orthopaedic surgeon and underwent an MRI or ultrasound scan, certain factual matters are important.

29. [423]

    The plaintiff’s delayed her first post-injury appointment with Dr Percy to 14 October 2010, in part so she could drive herself. In February 2011, she organised to see Dr Duckworth after Dr Percy gave her a referral. I accept that such a referral may have taken longer to schedule in the period leading up to Christmas. This would suggest that the plaintiff may have seen an orthopaedic surgeon, had she pursued referral promptly following on from Dr Percy’s advice, in about the first week or two of November. An ultrasound could then have been organised and the surgeon would have had a discussion with the plaintiff about surgery.

30. [424]

    The plaintiff resided at Freeman’s Reach, with Nepean Hospital as her local tertiary hospital. Had the plaintiff had gone to see an orthopedic surgeon, as with the ultrasound she underwent in February 2011, it would likely have been at a practitioner in the Penrith area with visiting rights at Nepean Hospital. The evidence from Dr Khatib (Ex D1/5, Tab 4A), confirmed in oral evidence by Professor Sonnabend (T 587.10), demonstrates that there was a lengthy public waiting list for surgery, including rotator cuff surgery, in September 2010. Their evidence also confirms that the recommended and usual categorisation of rotator cuff repair surgery is Clinical Priority Category 3 (“CPC3”). This category means that surgery should be carried out within 365 days. Professor Murrell and Dr Cummine agreed that the plaintiff would have been allocated CPC3 for her injury at that time.

31. [425]

    Professor Murrell gave the following evidence (T 727.23-38; T 728.1-24):

32. [426]

    Dr Sonnabend gave the following evidence (T 590.50; T 591; T 992.1-27):

33. [427]

    Drs Duke and Cummine gave the following evidence (T 591.36-50; T 592.147):

34. [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.

35. [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).

36. [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.

37. [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.

38. [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.

39. [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.

Sections 5L and 5G of the Civil Liability Act – whether the risk was obvious and is a dangerous recreational activity

1. [434]

   Both defendants rely on ss 5L and 5G of the Civil Liability Act. Section 5L provides that there is no liability for harm suffered from the materialisation of an obvious risk of a dangerous recreational activity. Even if the plaintiff establishes duty, breach, and causation in relation to his claim in negligence, if s 5L applies, the defendant will have a complete defence: see Leeming JA, Goode v Angland [2017] NSWCA 311 (“Goode”) at [5] and [185]. The defendants plead that they cannot be liable in negligence for the harm allegedly suffered by the plaintiff, as that harm was the materialisation of an obvious risk of a dangerous recreational activity.

2. [435]

   In CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 (“CG Maloney”), Santow JA observed at [173] that “[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated”. In this case, the defendants have articulated the relevant risks to the plaintiff as follows: firstly, of suffering an aggravation, worsening or further deterioration of her right shoulder injury by reason of performing heavy and physical manual labour tasks; secondly, of not obtaining or having the benefit of, orthopaedic specialist advice, treatment and recommendations by reason of failing to consult an orthopaedic specialist; thirdly, of not obtaining appropriate treatment of her right shoulder injury if she did not follow in a timely manner the instructions of her treating medical doctors; and finally, of suffering injury, whether an aggravation or otherwise, by reason of engaging in a dangerous recreational activity.

3. [436]

   In determining the application of s 5L in this case, it is first necessary to consider whether the risk undertaken by the plaintiff was “obvious” under the Civil Liability Act. Sections 5F, 5G, 5H and 5L read:

4. [437]

   While ss 5L and 5G were pleaded by both defendants, no submissions by either party addressed any of the issues relevant to the defence. There was no evidence as to whether the risks articulated were obvious, or whether the activity in which the plaintiff engaged was a dangerous recreational activity. Therefore, it is not necessary for me to address these issues other than to say that these defences fail.

Contributory negligence

1. [438]

   Both Nepean Hospital and Dr Percy pleaded a defence of contributory negligence, particulars of which have been reproduced earlier in this judgment. Nepean Hospital submitted that if the plaintiff succeeds on liability, the Court should reduce damages on the basis of her contributory negligence by approximately 50%. Dr Percy submitted that the Court should reduce damages on the basis of her contributory negligence by 100%.

2. [439]

   Sections 5R and 5S of the Civil Liability Act govern the question of whether a person can be taken to have been contributorily negligent. Section 5R of the Civil Liability Act reads:

3. [440]

   Section 5S reads:

4. [441]

   Contributory negligence is determined objectively from the facts and circumstances of a case, including what the plaintiff knew or ought to have known at the time of the alleged negligence: Civil Liability Act s 5R(2)(b); see also Joslyn v Berryman (2003) 214 CLR 552 at [16].

5. [442]

   The defendants’ argued that there are multiple bases upon which a finding of contributory negligence should be made. Firstly, they argued that the plaintiff had been told to only perform very limited exercises up to a quarter range of motion and to wear a shoulder immobilizer, but instead, she quickly stopped wearing the shoulder immobiliser and repeatedly lifted her right arm up to head height when performing vigorous “J” exercises. The defendants submitted that as such, the plaintiff failed to follow medical advice. Her management of her health was haphazard, and on one view, directly impacted upon her progress. As such, she was contributory negligent in her own injury.

6. [443]

   Further, according to Dr Percy’s contemporaneous notes, the plaintiff returned to heavy farm duties and tended to her horses against medical advice. As Dr Percy stated in his evidence, the plaintiff told him that she did so because she had to, as she had no one else to attend to the tasks. Again, her decision to behave in that way, notwithstanding the advice of Dr Percy, shows a want of care for her own safety and likely contributed to her loss through enlarging an existing rotator cuff tear.

7. [444]

   Finally, Nepean Hospital submitted that the plaintiff failed to follow the advice she received at Nepean Hospital and from Dr Percy that she should see an orthopaedic surgeon about her shoulder. The first defendant argued that the Court should find that the plaintiff decided not to pursue the referral in part because she did not want to spend the money, and in part because she was not interested in investigating her condition and preferred to prioritise the needs of her horses.

8. [445]

   In determining whether a plaintiff has been contributorily negligent, it is necessary to have regard to the plaintiff’s personal responsibility for his or her own safety: see Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 at [67]-[68] per Ipp JA (Giles JA and Hunt AJA agreeing).

9. [446]

   In Podrebersek v Australian Iron & Steel [1985] HCA 34; (1985) 59 ALR 529, the High Court stated at 532:

10. [447]

    The plaintiff specifically denied performing the “J” exercises “vigorously”. She described holding her right hand with her left and lifting her right arm with her left in the shape of a “J”. The plaintiff also denies that she returned to any “heavy farm duties” using her right arm (Statement, p 59). She states that she was prevented from such work, as even patting a foal was enough to give her great pain.

11. [448]

    Furthermore, the plaintiff said she never “failed to follow advice” by refusing to see an orthopaedic surgeon. She says she attempted to see Dr New as the first defendant advised her to do. The advice from Dr New’s rooms was to see her general practitioner, which she followed. The plaintiff noted that Professor Sonnabend, Dr Duke and Dr Cummine said they could well imagine the same advice being given by one of their staffers. The plaintiff therefore argued that no contributory negligence has been established.

12. [449]

    Earlier in this judgment, I made findings that the plaintiff was never told to perform “J” exercises of any kind. However, I find on the balance of probabilities that she did perform them vigorously every day between 28 September 2010 and 14 October 2010 and she completed those exercises a few times a day for maybe a few minutes at a time (T 218.45-46; T 219.1-3). I also made a finding earlier that the plaintiff did continue to carry out farm duties even though she was advised by Dr Percy not to do so.

13. [450]

    Furthermore, the plaintiff’s submission that she never failed to follow advice overlooks Dr Percy’s request on a number of occasions that she consult an orthopaedic surgeon. She ignored this advice.

14. [451]

    Taking these circumstances into account, I find that the plaintiff’s personal conduct in failing to take care and follow instructions given by both defendants, I apportion contributory negligence at 15%.

Is the plaintiff’s claim against Dr Percy statute barred?

1. [452]

   By reply filed 4 September 2018, the plaintiff seeks orders that the cause of action against the second defendant was discoverable only after she was made aware of a report of Dr David H Sonnabend dated 31 July 2015. As a result, her action against the second defendant was brought within the time prescribed by the Limitation Act 1969 (NSW).

2. [453]

   In his defence set out earlier in this judgment, Dr Percy pleaded that the plaintiff cannot avail herself of the relief provided by ss 50C and 50D of the Limitation Act. As such, the second defendant submitted that the claim against Dr Percy is not maintainable and should be dismissed.

3. [454]

   Section 50C reads:

4. [455]

   The Court must assess when the cause of action was discoverable pursuant to s 50D. It reads:

5. [456]

   The parties referred to Wang v State of New South Wales [2010] NSWCA 209 at [25] (“Wang”); Barker-Morrison v State of New South Wales [2009] 74 NSWLR 454 (“Baker-Morrison”); Commonwealth of Australia v Shaw [2006] NSWCA 209 (“Shaw”) and Gillett v State of New South Wales [2012] NSWCA 83 (“Gillett”).

6. [457]

   In Shaw, Basten JA (with Handley and Ipp JJA agreeing) held at [28]:

7. [458]

   In Baker-Morrison, Basten JA observed that when considering a plaintiff’s state of knowledge, it was necessary to focus upon the concept of knowledge, as well as each of the identified facts in s 50D(1)(a), (b) and (c). Basten JA stated at [26]:

8. [459]

   In Baker-Morrison, Basten JA then analysed the concept of fault in s 50D(1)(b) as one of the key factors that needs to be “known” before a cause of action is discoverable. Basten JA stated at [28]:

9. [460]

   Basten JA at [39] rejected the proposition that it is necessary for a person to be able to articulate a particular cause of action for the purposes of s 50D(1)(b). Rather, “[i]t is the key factors necessary to establish legal liability that must be known”.

10. [461]

    In Gillett, Beazley JA endorsed the approach of Basten JA in Baker-Morrison, and observed at [95]:

11. [462]

    The onus is on the plaintiff to satisfy this Court on the balance of probabilities that she was unaware of the integers of the cause of action at the time the limitation period expired on 9 December 2013. The plaintiff commenced proceedings against Nepean Hospital by statement of claim filed 31 May 2013. However, she did not commence proceedings against Dr Percy, as pleaded in the amended statement of claim, until 15 December 2015.

12. [463]

    In late September 2010, as per s 50D(1)(a), the plaintiff knew that she had injured her right shoulder. As per s 50D(1)(c), the plaintiff knew that her injury was serious on 24 February 2011, at the latest, when Dr Duckworh informed her that the tear to her right rotator cuff could not be repaired. Hence, the issue to be determined pursuant to s 50D(1)(b) is when the plaintiff became aware, or when she ought to have become aware, that the injury was caused by the second defendant.

13. [464]

    On 31 May 2013, the plaintiff filed a statement of claim. The plaintiff relied upon her affidavit dated 3 September 2018.

14. [465]

    The plaintiff deposed that sometime in 2011, she spoke to Julie Ann Mahony, a solicitor employed by Stack Goudkamp, for the purpose of engaging her to act in her case against the first defendant (Aff, [2]). The plaintiff does not specifically remember this meeting. She thinks it only concerned the case (T 416.49-50; T 417.1-12). Ms Mahony did not discuss Dr Percy’s letter with the plaintiff.

15. [466]

    In cross examination, the following exchange took place (T 443.28-50; T 441-15):

16. [467]

    The plaintiff deposed that when she spoke to Ms Mahony, she asked for advice on bringing proceedings in respect of the injury to her right shoulder. The plaintiff says that Ms Mahony advised her that there was a possible action against the hospital on the basis that it should have ordered an ultrasound, but that Ms Mahony did not advise her to sue Dr Percy (Aff, [3]-[6]).

17. [468]

    On 12 August 2011, a memo notes a conference between the plaintiff and Ms Mahony on that day. The conference lasted for about four hours. The purpose of the conference was to discuss the letter from Dr Percy dated 19 July 2011 (Ex K) and to obtain the plaintiff’s clear and precise instructions in response (Ex D2/1). The use of this document in these proceedings has been limited to evidence of what was said, but not as to the truth of the representation (T 448). The file note included the following:

18. [469]

    Richard Royale, barrister, wrote to Ms Mahony on 31 January 2013. His letter concerned his discussion with Dr Duke, mainly in relation to the liability of Nepean Hospital. At the end of the letter, he wrote (Ex L):

19. [470]

    The plaintiff says that Ms Mahony did not advise her to sue Dr Percy (Aff, [6]).

20. [471]

    Under cross examination, the plaintiff was asked whether she remembered being told in January 2014 that Dr Cummine was critical of Dr Percy in his report. She answered, “I definitely do not remember that”, and confirmed that she was “certain” (T 441.7-15).

21. [472]

    The plaintiff then changed solicitors to Mr Margiotta. In August 2015, she conferred with Mr Michael Cranitch SC and Mr Craig Stewart of counsel about her potential action. She says that during the course of that conference, they advised her to sue Dr Percy after the receipt of the report of Dr Sonnabend dated 31 July 2015. The plaintiff thinks that they made this recommendation probably sometime after 18 August 2015. She says that this was the first time a lawyer suggested that she sue Dr Percy (Aff [6]-[7]).

22. [473]

    In his report dated 31 July 2015 under the heading “Opinion”, Professor Sonnabend relevantly states:

23. [474]

    The plaintiff argued that the evidence was that she first became aware of the availability of a claim against Dr Percy in or about August 2015.

24. [475]

    The plaintiff denied receiving advice to sue Dr Percy before that time, and argued that the memorandum of Stacks Goudkamp supports her position. The plaintiff argued that the letter of Mr Royle confirms that the plaintiff’s lawyers were of the opinion that Dr Percy should not be sued. Up until the time of the conference between the plaintiff, Mr Cranitch SC and Mr Stewart, no solicitor had advised her to sue Dr Percy.

25. [476]

    In his letter dated 31 July 2015, Professor Sonnabend raised the question of who bore responsibility for directing the plaintiff to an alternative source of advice to Dr New. Professor Sonnabend attributed certain failures to Dr Percy. According to the plaintiff, she did not read Professor Sonnabend’s letter. However, her lawyers received the letter and gave her the advice to sue Dr Percy, on which she acted.

26. [477]

    Dr Percy submitted that a cause of action in negligence against him could only have arisen between 19 October 2010 and 9 December 2010.

27. [478]

    Counsel for Dr Percy submitted that the evidence was that the plaintiff first became aware of the availability of a claim against Dr Percy on 12 August 2011 at the conference between the plaintiff and her solicitor, Ms Mahony. A note from that conference states, “It appears that Dr Percy has assumed from the hospital scans that as there was no fracture, the injury was not very serious. He has failed to exclude any other possible injury, such as the one she in fact has, and failed to refer her for specialist opinion.” The second defendant noted that in answering questions about this note, the plaintiff was evasive.

28. [479]

    Ultimately, the plaintiff’s evidence was that she could not recall what was said to her in June, July or August 2015 in respect of bringing proceedings against Dr Percy, and that she effectively bore no responsibility for the conduct of the proceedings (T 445.14-31).

29. [480]

    The second defendant stated that Ms Mahoney’s assessment clearly connects the plaintiff’s condition with Dr Percy’s conduct in treating her. At the 12 August 2011 conference, Ms Mahony informed the plaintiff of each integer of the claim she now brings against Dr Percy. The plaintiff elected not to call Ms Mahony in these proceedings. The second defendant submitted that the inference ought to be drawn that Ms Mahony’s evidence would not have assisted the plaintiff.

30. [481]

    The plaintiff’s evidence in relation to her meeting with Ms Mahony on 12 August 2011 was unimpressive. The relevant aspects of that discussion in relation Dr Percy occur where Ms Mahony’s notes record, “It appears that Dr Percy has assumed from the hospital scans that as there was no fracture, the injury was not very serious. He has failed to exclude any other possible injury, such as the one she in fact has, and failed to refer her for specialist opinion”. The notes further record, “We will need to establish that the Hospital should have ordered the ultrasound immediately and not 8 days later. If we can establish this, the Hospital will be liable for any bad care she received from Dr Percy subsequently. However, the Hospital may try to join Dr Percy to the proceedings.”

31. [482]

    A fair reading of these comments when focussing on the liability issue is that the solicitor was telling the plaintiff that it appears that Dr Percy failed to exclude any possible injury such as the one in fact suffered from, and failed to refer the plaintiff for specialist opinion. At the stage of the conversation on 12 August 2011, the solicitor anticipated that the plaintiff needed to establish that Nepean Hospital should have ordered an ultrasound immediately and not after eight days, and if this could be established, Nepean Hospital would be liable for any bad care the plaintiff subsequently received from Dr Percy. In my view, this conversation does not establish that the plaintiff knew the injury was caused by Dr Percy. Rather, it is evidence she was told that the injury was caused by Nepean Hospital, and that it might be responsible for Dr Percy’s “bad care”.

32. [483]

    There is no evidence that the plaintiff was aware of the advice given by Richard Royle to Ms Mahony on 31 January 2013. Moreover, his advice was that there were not reasonable prospects of a successful action against Dr Percy.

33. [484]

    It is my view that it was after 18 August 2015 that the plaintiff first became aware that the injury was allegedly caused by the fault of Dr Percy. Counsel advised her of this fact after they read the report of Professor Sonnabend dated 31 July 2015. The discovery period therefore runs from 18 August 2015. The plaintiff filed her amended statement of claim on 15 December 2015. The plaintiff’s action against Dr Percy was commenced within three years of 31 July 2015. Dr Percy made no submissions he would not receive a fair trial. Therefore, had the plaintiff has been successful on the issue of liability, it would have been just and reasonable to extended the limitation period pursuant to ss 50C and 50D of the Limitation Act, and I would have done so.

Medical reports

1. [485]

   In relation to damages, the parties relied upon the joint report of psychiatrists Associate Professor Carolyn Quadrio and Dr Rosalie Wilcox dated 20 August 2018, and the joint report of occupational therapists Dr Lorraine Jones, Ms Diane Prattley and Ms Susan Dinley dated 23 August 2018. The psychiatrists and the occupational therapists each gave conclave evidence. I shall refer to these reports in more detail later in this judgment.

Damages

1. [486]

   Damages are to be assessed in accordance with the provisions of Part 2 of the Civil Liability Act. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.

2. [487]

   Damages are awarded as compensation for the harm suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. Therefore, all the law can do is to restore the person who has suffered so far as money can do.

3. [488]

   Damages cannot be perfect. In Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14:

4. [489]

   Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski (1949) ALR 860; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans (1977) 13 ALR 57; (1977) 138 CLR 563 at 585 per Gibbs and Stephen JJ.

5. [490]

   Actual loss must be determined. The determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 at 676.

6. [491]

   The second defendant adopts the first defendant’s submissions on damages.

7. [492]

   The plaintiff is currently 67 years of age. There is a dispute as to her life expectancy.

8. [493]

   Associate Professor Tuly Rosenfeld, a geriatric medical consultant, relied upon his report dated 30 March 2015 (Ex D1/5, Vol 2 p 385), gave evidence and was cross examined. His view was that the plaintiff’s life expectancy was likely to be affected by pre-existing health issues, including significant vascular risk factors, known cardiac vascular disease, brain vascular risk factors and the presence of underlying vascular brain disease. All parties accepted his evidence.

9. [494]

   Associate Professor Rosenfeld’s opinion, in which he assessed the likely impact on the plaintiff’s health of the conditions he outlined, concluded that her life expectancy should be reduced by up to 50% of the normal medium life expectancy. For a 64-year-old woman, as she then was, the median life expectancy was 24.71 years, which is rounded to 24.7. He therefore estimated the plaintiff’s median life expectancy at 12.35 years. As time has passed, Associate Professor Rosenfeld updated his view, so that at the time of the hearing of this case, he gave evidence that the medium life expectancy for a woman the plaintiff’s age is now 22.1 years. Half of that is 11.00 years. The plaintiff accepts Associate Professor Rosenfeld’s evidence that her life expectancy is 11 years. The plaintiff and defendants further agree upon a deduction for vicissitudes at 20%.

10. [495]

    The 5% multiplier on 11 years is 444.1. I note that as some time will have elapsed between the date this figure was calculated and the date of judgment in these proceedings, relevant calculations below will need to be adjusted.

11. [496]

    If I am wrong and the defendants are negligent, the defendants submitted that the approach I should adopt is to take a comparison between the plaintiff’s present physical and mental condition, and their likely condition had the rotator cuff repair been performed. The available evidence indicates that the plaintiff would not have gained a complete return to function and would likely have had some ongoing limitations in what she could perform. The defendants argued that there was a real risk that, depending upon the nature of the surgery and the time at which it was performed, the plaintiff would still have suffered from fairly significant ongoing physical limitations. It is also likely that her pain, which she stated varies in intensity, would have been reduced but not completely abated. Earlier, I made a finding that the plaintiff’s right rotator cuff injury cannot now be repaired or reconstructed. Therefore, I approach the assessment of damages on this basis.

12. [497]

    The plaintiff has claimed damages totalling $910,372.12.

Non-economic loss

1. [498]

   The plaintiff claims $412,750 for non-economic loss, which is 65% of a “most extreme case”. The assessment of non-economic loss is governed by the provisions of the Civil Liability Act. The definition of a most extreme case pursuant to s 16 of the Civil Liability Act was discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 533. The plaintiff submitted that her injuries are sufficiently severe to be considered 65% of a most extreme case.

2. [499]

   Non-economic loss means any one or more of the following: pain and suffering, loss of amenities of life, loss or loss of expectation of life, and/or disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.

3. [500]

   Section 16 of the Civil Liability Act relevantly reads:

4. [501]

   The defendants submitted that it is difficult to assess the relevant percentage of a worst case. In all of the circumstances, they argued that the appropriate allowance for non-economic loss is between 25% and 30% of a most extreme case. That is a range of $41,500 to $146,000.

5. [502]

   On the issue of the appropriate award for non-economic loss, it is also relevant to take into account the plaintiff’s age: see Reece v Reece (1994) 19 MVR 103 at 105. Due to the plaintiff’s age and the fact that she will not suffer the consequences of the right shoulder injury for a long period into the future, unlike a younger person, her entitlement to damages for non-economic loss must be correspondingly reduced.

6. [503]

   The plaintiff noted that her condition is permanent. She has suffered great difficulties because of her disabled arm. She can use it only for the purpose of balancing, and needs to use her left arm to do all manual work. Her disability has inhibited her in working with horses and trees, and she cannot perform household tasks and yard maintenance. She has also suffered and still suffers chronic pain, discomfort and sleeplessness. She continues to use analgesics.

7. [504]

   The plaintiff has a continuing need for psychiatric treatment. Both psychiatrists engaged in relation to this case agreed that she needed treatment for a 12-month period, but added that she may well need further psychiatric treatment into the future.

8. [505]

   When the plaintiff had her accident, her life began to deteriorate. She was planning to build a storybook nursery to the point where it could sell at least 5,000 trees a year. She also had five horses that she was about to start training in the upcoming season. Those horses are now of little value because of their age and lack of training. Before the accident, the plaintiff could shoe the horses and trim their hooves, but she can no longer perform such tasks.

9. [506]

   The plaintiff submitted that but for the negligence following her accident, she intended to expand her nursery business and make it profitable. According to the plaintiff, she has always been a good horse rider and wanted to take part actively in the training of horses, and intended to sell them once trained. She says that she learned how to artificially inseminate hoses, and intended to continue doing so as she had been successful on a number of occasions. Her business with horses also involved standing stallions and charging service fees.

10. [507]

    The plaintiff said that she did a great deal of heavy work with hard wood, building fences, houses and sheds and setting up stables. She learned to use a chain saw. She cut her own firewood. She submitted that but for the negligence following her accident, she would have continued in all these activities and could have continued to run her businesses with trees and horses. Since the accident, she has been unable to pursue any of these business activities and has been compelled by poverty to live in a horse float on a friend’s property with the remainder of her horses and cats.

11. [508]

    Senior counsel for the plaintiff referred to Coles Supermarket Australia Pty Ltd v Haleluka [2012] NSWCA 343, where Allsop P adopted the comments of the primary judge who said:

12. [509]

    The plaintiff has suffered a chronic right rotator cuff tear, which on the balance of probabilities can now no longer be repaired; a large tear of the supraspinatus and infraspinatus tendons with retraction; medial subluxation of the right biceps; fluid and debris in the subacromial bursa; and an articular surface tear of the superior subscaplutoid tendon.

13. [510]

    Her disabilities include difficulty lifting up her right arm, and she now has severely limited and painful right shoulder movements. Her restrictions limit her ability to manage her horses. Looking after her horses is the plaintiff’s priority and the passion of her life. As she cannot lift her right arm, she struggles to put a rug on her two older, more docile horses, and she is completely unable to rug her other horses. She cannot put a saddle or bridle on any of the horses without assistance. Due to the height of her horses, she cannot mount or dismount a horse without assistance and a mounting block. The training of a horse involves a lot of activity at which the plaintiff must be at ground level. She used to be able to lasso a horse and could use a stock whip, but these activities have been possible for her since the accident. She can no longer train nor breed her horses.

14. [511]

    Prior to the accident, she was growing conifers, liquidambars and maples, and she intended to sell them for hedges and avenues. She now cannot tend to those plants. The plaintiff also planned to train her horses and breed them. She had a business, “Makaroff Warmbloods”. While the businesses were not profitable, I accept that the loss of these activities had an effect on her psychological state.

15. [512]

    The plaintiff now requires commercial attendant care both for domestic activities and yard maintenance of four hours per week.

16. [513]

    I accept the opinions of Associate Professor Quadrio and Dr Wilcox, who agree that irrespective of the right shoulder injury, it is likely that by now, the plaintiff would have required treatment attributable to her pre-morbid condition and her post-shoulder injury stressors (Agreed Tender Bundle, Tab 12, p 106). They agree that while she suffers from chronic, cumulative trauma, the contemporaneous psychiatric evidence in this matter indicates that she would likely have developed an adjustment disorder with anxiety and depression on the basis of her failed loans, financial stress, and loss of her property. I cannot attribute her current psychological condition to her rotator cuff injury alone, but I accept the position in which she finds herself after suffering the injury has exacerbated it.

17. [514]

    Taking all these matters into account, I assess non-economic loss at 40% of a most extreme case. This equates to the sum of $254,000.

Economic loss

1. [515]

   The parties agree in the assessment of the plaintiff’s out of pocket expenses, except for the amount of $460.15 charged by Dr Percy. As I do not know to which service this relates, I disallow the sum of $460.15. There is no claim for future out of pocket expenses.

2. [516]

   The plaintiff does not claim any past economic loss. She claims $100,000 as a cushion for future economic loss. The defendants have made no allowance for such a cushion. The defendants submitted that there is no basis upon which the Court could order such a sum, as the plaintiff has not established that she has suffered any loss of earning capacity.

3. [517]

   Section 13 of the Civil Liability Act reads:

4. [518]

   As outlined earlier, the plaintiff emphasised that she has been committed to the raising and training of horses for nearly her entire life, and that she was one of the proprietors of the Middleton Stud at Freeman’s Reach and later of another property at Kurmond Road at Freeman’s Reach.

5. [519]

   The plaintiff stated that she designed buildings and fencing, and was involved in extensive stud work including artificial insemination and other breeding of horses. She also rode in dressage and show jumping competitions and trained riders. She has annexed photographs of the buildings she says that she designed and caused to be erected and of the last stud she operated, Makaroff Warmbloods. According to the plaintiff, the photos show that she was running a stud business selling horses that she bred (Statement, 26 July 2018) She also said that she grew trees and sold them. Her case was that but for the accident, she would have continued with her artificial insemination activities and the growing and selling of trees.

6. [520]

   The plaintiff gave evidence of the hard physical work she did at the Kurmond Road property, her design and horse work, and the money she made from breeding horses. She also gave evidence that she set up a small business in which she raised tube plants.

7. [521]

   The defendants’ position is that no award of damages for economic loss is appropriate in this case. Notwithstanding the fact that the plaintiff's right shoulder injury has undoubtedly impaired her ability to perform tasks in relation to her horses, the evidence indicates that all times in the past she suffered a loss in her horse breeding and horse selling activities.

8. [522]

   It is settled law that in determining an appropriate figure for economic loss, the court must have regard both to the available evidence as to the extent to which the plaintiff's earning capacity has been impaired, and also the evidence as to whether that diminution has been or may be productive of financial loss: see Mason v Demasi [2012] NSWCA 210 at [29].

9. [523]

   The defendants also referred to Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 (“Carter”), in a passage cited with approval by the plurality in CSR Ltd v Eddy (2005) 80 ALJR 59 (“Eddy”), in which Barwick CJ explained that loss of earning capacity is not merely a shorthand for a broader range of economic loss. In Carter, Barwick CJ explained [50] that an injured plaintiff:

10. [524]

    The defendants argued that the plaintiff only provided scant evidence of her skills, and served no evidence which identified the comparable earnings of a person with those skills.

11. [525]

    The defendants further noted that the plaintiff’s income-producing activities were conducted on acreage that she no longer possesses.

12. [526]

    The plaintiff has never held any salaried employment (T 175.15-21).

13. [527]

    In or around April 1997, the plaintiff purchased the Kurmond Road property for the sum of $265,200 (T 171.49-50; T172.5-7). The purchase was funded by the proceeds of a divorce settlement. She retained $137,000 in surplus funds (T 171.37-44; T 172.9-10). The property comprised a vacant block of land upon which the plaintiff constructed a dwelling (T 172.12-16). She inhabited the dwelling prior to its completion and before it was equipped with windows, electricity, or sewerage. During that period, she lit the space with candles and relied on a transistor radio for entertainment. She said she wanted to keep her overheads low (T 172.25-50; T 173.1; T 179.1-9; T 179.31-42).

14. [528]

    In or around 1998, the plaintiff commenced receiving unemployment benefits based upon a medical certificate provided by Dr McDonald. The plaintiff was suffering from depression at that time (T 174.45; T 173.49-50; T 174.8; T 174.44-49.

15. [529]

    With the assistance of her son, David, the plaintiff obtained a loan from Westpac Banking Corporation in January 1999 (T 174.45; T 176.15-23). The plaintiff could not say whether her son was a co-lender or a guarantor (T 174.45; T 176.15-23; T 183.26-28). In consequence of the loan facility, Westpac obtained an encumbrance over the Kurmond Road property (T 182.30-36).

16. [530]

    The loan facility was initially for the sum of $65,000, but was increased to $80,000 in early 2001, to $93,293 in July 2001 and to $114,060 in April 2003. The plaintiff was told at the time of the last increase that Westpac would not lend her any more money (T 176.15-45; T 178.39-45; T 180.18-20). In December 2004, the plaintiff met Mr Obeido, a finance broker (T 180.18-20). At that time, she was pressed financially and was living without electricity in her home (T 181.11-17).

17. [531]

    The plaintiff gave the following evidence concerning the loan. The mortgagor was RAMS (T 185.21-28).

18. [532]

    The plaintiff exhausted the sum of $500,000 in nine months on “mainly interest”, living expenses, improvements to the property, cosmetic surgery, windows, feed and veterinary bills (T 189.25-T 192.20; Ex F). In or about February 2007, the plaintiff increased the RAMS loan facility by $150,000 to $650,000 (T 196.22-24). At that point, the plaintiff’s Centrelink income was $450 per fortnight, and her horse breeding business was running at a loss (T 196.22-28). In May 2007, in anticipation of exhausting the additional $150,000, the plaintiff sought Mr Obeido’s help to obtain more funds (T 198.43-45). She had spent the $150,000 by June 2007 (T 198.39-41). She said that during that period, her horse sales were not exceeding the cost of purchasing hay (T 203.4-5).

19. [533]

    Notwithstanding the plaintiff’s modest income, on 13 July 2007 she signed an Australian Taxation Office form that contained a representation that her GST turnover as at 3 June 2007 was more than $150,000. She gave the following evidence at the hearing when asked about that form (T 203.4-5).

20. [534]

    The plaintiff’s representation that her income was $150,000 was incorrect.

21. [535]

    Ultimately, on 17 July 2007, the facility was increased to $1,000,000 (T 299.4-9). In the following 2008 financial year, the plaintiff’s business lost $106,644 (Ex F). The plaintiff lost her land as a result of the mortgagor taking possession of it.

22. [536]

    The plaintiff relied on an affidavit sworn on 26 February 2010 in Supreme Court proceedings against Perpetual Limited (Ex G). Exhibit F, which was an annexure to Ex G, sets out a schedule of income and expenses between the years 2005 and 2009 for Makaroff Warmbloods and is reproduced below:

23. [537]

    The plaintiff gave evidence than an equine influenza outbreak in August 2007 prevented her from carrying out any breeding that year. She made no horse sales the following year in 2008. In 2009, she made a profit of $8,842.

24. [538]

    The plaintiff said that she intended to train four young horses at the end of September 2010, and that she had also learned to inseminate mares so that she could sell their offspring. Further, she said it was her intention to sell 5,000 trees a year with a view to making an income of $50,000 a year (Statement, 25 July 2018). Annexure D to that statement shows photographs of the trees potted and ready for sale, together with an eBay invoice. The eBay invoice is in the sum of $43.13.

25. [539]

    In short, in the four years from 2005 to 2009, the plaintiff only made income in one year. That year was 2009, and the income was in the amount of $8,842 from Makaroff Warmbloods, and so far as the evidence goes, $43.13 from the sale of plants.

26. [540]

    A plaintiff is not entitled to recover damages for loss of earning capacity unless he or she establishes two distinct but related requirements. The first is that the plaintiff’s earning capacity has in fact been diminished by reason of the negligently-caused injury. The second is that the diminution in earning capacity is, or may be, productive of financial loss: see Medlin v State Government Insurance Commission (1995) 182 CLR 1.

27. [541]

    The plaintiff’s view of her earning capacity from the selling of her horses and plants was at best aspirational. Her financial records demonstrate that she made a profit with Makaroff Warmbloods only during the year ending 2009, and that was in the sum of $8,842. Makaroff Warmbloods made losses of $74,120 in 2005, $10,564 in 2006, $37,298 in 2007 and $106,644 in 2008. Although the plaintiff was growing plants, the only evidence of business dealings in relation to them was that she sold some on eBay in February 2010 for $43.13. Between July 1997 and July 1999, she had borrowed $1 million and was unable to service the mortgage, so ended up losing the Kurmond Road property on which she had conducted, and planned to continue, her businesses.

28. [542]

    For these reasons, it is my view that the plaintiff had no real earning capacity prior to her injury in 2010. Moreover, even if her earning capacity was reduced by her injury, she has failed to demonstrate that it is, or may be, productive of any financial loss. The plaintiff is therefore not entitled to recover damages for loss of earning capacity.

29. [543]

    An award of damages for gratuitous attendant care services is governed by s 15 of the Civil Liability Act. It reads:

30. [544]

    The plaintiff made no claim for past care, as she conceded that her care needs do not meet the dual 6 hours/6 consecutive months threshold under s 15. On this basis, I would not have made any allowance for past care.

31. [545]

    On 20 August 2013, occupational therapists Ms Diane Prattley and Ms Susan Dinley, and Dr Lorraine Jones, a rehabilitation physician, met to discuss the questions raised by the parties. Ms Prattley and Ms Dinley gave conclave evidence. Dr Jones was not required to give evidence. At the conclave, the occupational therapists reached an agreement as to the amount of future commercial attendant care the plaintiff will require in relation to domestic and yard activities. The domestic activities for which she requires assistance include heavy cleaning, high cleaning, repetitive activities such as vacuuming, mopping, scrubbing, changing bed linen, shopping, cooking, and washing the dishes. As to yard assistance, she cannot do fencing or clean gutters, and has difficulty with all aspects of horse management, including shoeing and rugging.

32. [546]

    So far as the future care is concerned, Ms Dinley and Ms Prattley agree as to the plaintiff’s reasonable needs. They would give allowance for four hours of commercial assistance per week at $35 per hour over 11 years, with a 20% reduction for the factors referred to above. The figure is thus $52,850. The point of difference between the two experts is whether there should be two hours of household domestic care and two hours yard maintenance, or alternatively three hours of household domestic care and one hour of yard maintenance. The distance is not relevant to the allowance, as the costs of both care are the same. As such, I would allow the sum of $52,850 for future care. As stated earlier, this figure will need to be adjusted to account for the difference between the date of its calculation and the date of judgment.

33. [547]

    The plaintiff initially claimed that keeping horses was a hobby, but in later submissions, she claimed their keep as economic loss on the basis that it can be characterised as part of her business. She claims horse maintenance and feeding, including for watering and feeding horses, at 11 hours per week at a rate of $25 an hour, which amounts to $275 per week. That sum multiplied by the multiplier, 444.1, amounts to $122,127.50 for horse husbandry for the duration of the plaintiff’s life expectancy.

34. [548]

    The defendant argued that there is a factual issue as to the level of care actually required by the horses. Elsewhere in her evidence, the plaintiff claimed that in the period between 19 September 2010 and 28 October 2010, and thereafter when she exacerbated her shoulder injury between consultations with Dr Percy, her 20 horses required minimal or little care, rugging, washing, or cleaning of stables. She stated they merely required Lucerne hay twice a day and water.

35. [549]

    The defendants further argued that although the occupational therapists made an allowance for horse husbandry, as a matter of legal principle, no such damages are available: Geaghan v D’Aubert [2002] NSWCA 260 (“Geaghan”) at [53]; Schofield v Hopman [2017] QSE 297 (“Schofield”); Woods v Collins [2018] SADC 62.

36. [550]

    In Geaghan, a question arose as to whether Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 damages could be said to include the provision of care to an injured person’s pets or those kept as a hobby. Stein JA, with whom Handley JA and Foster AJA agreed, discussed a claim for “care of the animals” at [53]-[66]. Stein JA concluded at [66] that:

37. [551]

    The defendants further referred to Eddy, in which the Court held at [16] and [39]:

38. [552]

    For these reasons, the defendants submitted that the loss of the plaintiff’s ability to care for her horses should sound in general damages, if any, but not be considered as economic loss.

39. [553]

    If the horses are to be characterised as pets, or their care as a hobby, the plaintiff is not entitled at law to recover with respect to their future care: see Geaghan at [61]-[66].

40. [554]

    The plaintiff does not agree that her horses are pets or that she tends them as a hobby. She claims that the cost of their care is better characterised as economic loss, because the horses form part of her business, Marakoff Warmbloods.

41. [555]

    In its submissions, the defendant referred to Schofield. The plaintiff in Schofield was injured in a motorcycle accident, and claimed in part for future care he was no longer able to provide to his pets, including cattle and a horse. In Schofield, the Court reaffirmed the principles outlined in Geaghan that a plaintiff cannot recover economic loss for the care of pets.

42. [556]

    Helpfully, Schofield also sets out the principles which are relevant to a claim in relation to a plaintiff’s unprofitable business. In addition to the cost of care for his animals, the plaintiff in Schofield claimed for labour required to sustain a bed and breakfast which he operated. Even before the plaintiff’s injury, the business had sustained annual losses of $25,000. It had had never made a profit, nor was there any evidence that it would ([181]). In determining whether the plaintiff was entitled to claim for the costs to keep the business operational, McMeekin J stated at [187]:

43. [557]

    The same issue of characterisation outlined in McMeekin’s judgment above at [187] applies in this case. If the purpose of maintaining the plaintiff’s horses is to sustain her business, then her losses are characterised as a loss of earning capacity. As outlined earlier, Medlin requires the plaintiff to bring evidence that her loss of earning capacity has, or will have, an adverse effect on her actual earnings. I have already found that the plaintiff’s injury did not adversely impact her earning capacity. Her business operated at a consistent loss, and she adduced no evidence that it could be expected to be profitable into the future.

44. [558]

    For these reasons, I do not make any allowance for the care of the plaintiff’s horses.

45. [559]

    In the event that I am wrong and an allowance should be made for the plaintiff’s horses, I will consider the appropriate sum that should be awarded.

46. [560]

    I will assess quantum by reference to the evidence of the occupational therapists, Ms Diane Prattley and Ms Susan Dinley. Both Ms Prattley and Ms Dinley have farms. Ms Prattley’s family also had a farm for 24 years at Helensburgh. They have 22 horses and breeding farm of US Tex stallion. While she visits the farm, she does not carry out the physical labour there. Ms Prattley currently resides on a property at Gunning. She has lived on properties for 25 years, where she has raised Murray Greys horses and sheep. She currently feeds the horses by hand every day. In relation to care, I prefer the evidence of Ms Dinley, as she has had many years of hands-on experience in raising horses.

47. [561]

    Ms Dinley identifies the heavy farm work to include that relating to slashing and tractor work, colic and paraffin, training to lead, saddling, applying a blanket, hay and feeding, disposal of deceased horses, firewood, the generator, fencing, stable cleaning, and general cleaning, including of manure and gutters (Ex D1/5 Report dated 17/4/2014, p 318).

48. [562]

    Both occupational therapists gave observations as to how the plaintiff fed her horses. It was raining on the day they inspected the plaintiff’s property. The hay had a tarpaulin over it. The plaintiff removed the hay bales by pulling on the back string and tugging with her left arm until it fell down. She cut the strings, lent down and divided the hay bale into separate biscuits.

49. [563]

    Having made observations about the type of work which the plaintiff does in relation to her horses, Ms Dinley considered that the plaintiff will require 10 hours per week of horse husbandry assistance (Ex D 2/3, p 125). Ms Prattley considered that the plaintiff will require 16 hours, reducing three hours every three years to 10 hours (Ex D 2/3, p 125).

50. [564]

    As stated above, I prefer the evidence regarding horse husbandry of Ms Prattley due to her extensive personal experience living on a farm with horses. For the next three years, Ms Prattley estimates the plaintiff will require 16 hours per week of assistance, which amounts to 2,496 hours. For the three years following, the plaintiff will require 13 hours per week, which amounts to 2,028 hours. The plaintiff is estimated to require 10 hours per week thereafter. Of her life expectancy from the multiplier 444.1 weeks, 132.1 weeks remain, which amounts to 1,321 hours of assistance. In total, the plaintiff will require a total of 5,845 hours. At a rate of $25 per hour, this amounts to $146,125. Had I awarded the plaintiff damages for horse husbandry, it would have been in this amount, adjusted to account for the difference between the date of its calculation and the date of judgment.

51. [565]

    The plaintiff claims the sum of $4,332.30 for lifestyle equipment. This cost includes for reaching tools, a food blender and a mobile trolley which cost a total of $840, to be replaced every six years, or 312 weeks. That amounts to $3 per week, and multiplied by 444.1 weeks amounts to $1,322.30. The plaintiff also claims for personal care equipment, including toiletries, combs and brushes, with a replacement cost of $208 every two years, or 104 weeks. That amounts to $2 per day, and multiplied by 444.1 weeks amounts to $888.20. The defendants allow the sum of $3,287.36 for both lifestyle and personal equipment.

52. [566]

    With respect to the plaintiff’s requirements for future equipment, the experts agree about what equipment will be required, how often it will need replacement, and its cost. As to what equipment is required, both Ms Dinley and Ms Prattley agree that for lifestyle and personal equipment, the plaintiff requires an electric start generator priced at $1,100, and scissor lift trolley priced at $500, both of which are to be replaced every seven years.

53. [567]

    In addition, Ms Dinley recommends that the plaintiff receive a long-handled bathing and dressing aid of $200 to be replaced every three years; a toileting aid of $50 to be replaced every three years; a one-handed jar/can opener of $100 to be replaced every five years; a long-handled reacher of $70 to be replaced every five years; a shower stool of $180 to be replaced every five years; a toilet surround of $180 to be replaced every five years; a trolley mobile of $180 to be replaced every 10 years; a laundry trolley, basket and clothes horse of $150; a lightweight vacuum and duster buster of $600; and a lightweight lawn mower, whipper snipper and garden tools of $900 (Ex D1/5, p 330).

54. [568]

    In addition Ms Prattley, in her report dated 3 May 2016, recommends a long-handled toilet hygiene aid of $45 to be replaced every two years; a curved-back brush of $117 to be replaced every three years; long-handle combs and brushes of $46 to be replaced every two years; a handy reacher of $35 to be replaced every five years; a food blender/mixer of $130 to be replaced every five years; and a mobile trolley of $175 to be replaced every five years (Ex E, Tab O, p 23).

55. [569]

    Taking the above into account, it is my view that the plaintiff’s claim for lifestyle and personal equipment is reasonable. Had I found for the plaintiff, I would have assessed a reasonable allowance for her future lifestyle and personal equipment at $4,332.30, adjusted to account for the difference between the date of its calculation and the date of judgment.

56. [570]

    The plaintiff claims NRMA Roadside Assistance at $100 per year, which amounts to $2.11 per week. Multiplied by 444.1 weeks amounts to a total of $937.05. The plaintiff submitted that this cost arises because she owns a second-hand farm vehicle and will require mechanical assistance if it breaks down. There is no evidence that prior to her injury, the plaintiff had a new car. In my view, her need for NRMA roadside assistance does not arise as a result of her shoulder injury. I disallow this item.

57. [571]

    The plaintiff claims four hours per week for occupational therapy at the cost of $175 per hour. This amounts to $700 per week. For the 444.1 weeks of her life expectancy, this amounts to a total of $310,870.

58. [572]

    The defendant submitted that the plaintiff’s claim for occupational therapy on an ongoing basis, which she costed at up to $469,800 in her schedule of damages, is absurd. The agreed position of the occupational therapists was that the plaintiff had a reasonable need for six hours of occupational therapy in total (Ex D2/3, Tab 14, p 124). At $150 per hour, the appropriate allowance is $900. I agree and accept that an allowance for six hours of occupational therapy at $150 per hour is reasonable, and would have allowed for $900.

59. [573]

    The plaintiff claims analgesic medication at $5 per month, or $1.25 per week. $1.25 multiplied by 444.1 weeks amounts to $555.12. The plaintiff also claims for anti-depressant medication at $40 per month, or $10 per week. $10 multiplied by 444.1 weeks amounts to $4,441. The total medication costs for her life expectancy are therefore in the amount of $4,996.125.

60. [574]

    The defendants submitted that the plaintiff does not require prescription medication, but she takes over the counter analgesics. They claim that a modest buffer allowance of perhaps $5,000 for the duration of her lifetime for medications would be appropriate.

61. [575]

    Dr Jones, rehabilitation specialist, is of the opinion that the plaintiff requires painkillers. I agree that an allowance of $5,000 is reasonable for future medication, and I allow the sum of $5,000 for it.

62. [576]

    The plaintiff suffers from depression and claims $250 for fortnightly psychiatrist/psychologist sessions. At $125 per week for the 444.1 of her life expectancy, these sessions amount to $55,512.50. The plaintiff claims for two psychogeriatrician sessions for medication management at $400 a session, totalling $800. She also claims for doctors’ appointments at $5,000 a year, or $96 per week. The weekly amount of $96 over the course of 444.1 weeks amounts to a total of $42,633.60.

63. [577]

    As previously stated, Associate Professor Quadrio and Dr Wilcox wrote a joint report dated 20 August 2018 and gave conclave evidence. Associate Professor Quadrio and Dr Wilcox agreed that irrespective of the plaintiff’s right shoulder injury, it is likely that by now she would have required treatment attributable to her pre-morbid condition and her post-shoulder injury stressors (ATB, Tab 12, p 106). They agreed that while she suffers from chronic, cumulative trauma, the contemporaneous psychiatric evidence was that the plaintiff would likely have developed an adjustment disorder with anxiety and depression on the basis of her failed loans, financial stress, and loss of her property. As I stated previously, I cannot attribute the plaintiff’s current psychological condition to her rotator cuff injury, but I accept that it has exacerbated it.

64. [578]

    The defendant submitted that no allowance for psychiatric treatment is appropriate, given the evidence that the plaintiff has established relationships with her psychiatrist, Dr Mulchandani, her psychologist, Ms MacDonell and her counselor, Ms Mangan, and receives their treatment at no cost and intends to continue seeing them into the future (T 164.3).

65. [579]

    Associate Professor Quadrio and Dr Wilcox agree that the plaintiff reasonably requires treatment of the nature of psychological therapy aimed at her symptoms of agitation, anxiety and depression, on a fortnightly basis for 12 to 20 sessions at an estimated cost of $250 per session. They agree that the plaintiff also requires treatment with antidepressant medication at an estimated cost of $50 per month over approximately 12 months. This medication treatment should be initiated by a psychogeriatrician and reviewed within six months, and in the meantime, monitored by her general practitioner. The estimated cost of the psychogeriatrician would be between $350 and $400 per session for at least two sessions. The treatment regime recommended is not entirely attributable to the psychiatric injury attributable to the index events, and it is likely that at this point in time the plaintiff would have required treatment attributable to her pre-morbid and post-shoulder injury stressors anyway.

66. [580]

    As to doctor’s appointments, the plaintiff claims what seems to be one general practitioner appointment per week at $96 per appointment, on an ongoing. The defendants argued that the evidence simply does not support such a claim. They note that in the joint report, Dr Jones stated her view that “no intervention, treatment or therapy will assist the plaintiff’s shoulder, apart from painkillers” (Ex D2/3, Tab 14, p 123).

67. [581]

    I agree that there is no evidentiary basis to award the plaintiff ongoing general practitioner attendances. She will need to attend a general practitioner in relation to her shoulder problems from time to time, but she does not require a weekly consultation. I therefore make some allowance for this item. Likewise, the plaintiff may require some psychogeriatrician’s appointments in the future, but certainly not as frequently as at two sessions per year. I note that although the plaintiff does require psychological treatment, only some of it is attributable to the shoulder injury, and she is currently receiving psychological counselling that she does not have to pay for. Nevertheless, I make an allowance for future psychological or psychiatric treatment. It is my view that the sum of $8,000 is reasonable for the cost of psychological/psychiatric, psychogeriatrician and general practitioner consultations in the future, to be adjusted to account for the difference between the date of its calculation and the date of judgment.

68. [582]

    The plaintiff’s claim fails. The result is that I enter judgment for the defendants.

69. [583]

    Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs.