Medical Negligence Case Study

Medical Negligence Case Study

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

A former patient has recently succeeded in a medical negligence action against the Nepean District Hospital (“the Hospital”) for the improper diagnosis of a shoulder injury. Ms Makaroff (“the Plaintiff”) was awarded a sum of $276,319.95 in damages on appeal. This case highlights the importance of seeking legal advice if you or your loved ones have experienced unsatisfactory care or poor health outcomes as a result of receiving medical treatment.

Establishing medical negligence

A party (the defendant) can be found to be negligent if they fail to take reasonable care to avoid causing damage to another person (the plaintiff). In order to establish a claim for negligence, a plaintiff must address the following elements under the Civil Liability Act 2002 (NSW):

  1. That a duty of care (to exercise due care and skill) between the plaintiff and the defendant existed;
  2. That this duty of care was breached by the defendant;
  3. That this breach caused the plaintiff (causation) to suffer injury or loss (damage); and
  4. That this damage suffered was not too far-removed (remoteness) from the consequence of the breach.

Each of these factors has been considered in greater detail in our previous article. The law of negligence is not straightforward, and highly dependent on the specific circumstances of the case.

There are also numerous defences which a defendant may establish in order to defer liability. For example, we have considered the dangerous recreational activity defence in a previous article regarding a case where a jockey was injured during a horse race. The Court in Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 considered this defence in the context of assessing the standard of care expected of medical professionals.

Case Study: Makaroff v Nepean Blue Mountains Local Health District

The Plaintiff was injured on 19 September 2010, when one of her horses bit her on her right forearm, which led to the dislocation of her right shoulder. An X-ray conducted at the hospital indicated that she had “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency”. No ultrasounds or MRIs were conducted, and she did not receive an orthopaedic review, prior to being discharged two days later. Neither the hospital or her GP advised the Plaintiff that she required an urgent radiological examination or orthopaedic review. Based on this advice, the Plaintiff did not obtain an ultrasound until 3 February 2011, by which time it was too late for surgery to be effective.

In this case, the Plaintiff claimed that had she been properly diagnosed in a timely fashion, she would have undergone surgery and would have properly recovered the function in her arm. She alleged that the hospital and her GP breached their duty of care by their negligent treatment and sought damages for her pain, further injury and loss.

Decision in this case – considering duty of care and causation

The Primary Judge at first instance rejected the claim that the Hospital and her GP had breached their duty of care, as the Civil Liability Act 2002 (NSW) s 5O precludes liability of both parties as they acted in a manner that was‘widely accepted in Australia by peer professional opinion as competent medical practice’ at the time it was provided. Additionally, the Primary Judge held that even if a breach could be established, there was no ‘causal link’ between the alleged breach and her subsequent injuries.

However, on appeal, the Court found that the hospital had in fact breached its duty of care to the Plaintiff. Experts claimed that a competent professional medical practice required the patient to be advised of the urgency of seeking an orthopaedic consultation within 2-3 weeks of the injury. Judge Simpson also found that the hospital breached its duty of care by failing to refer the Plaintiff for radiological investigations when she presented symptoms which suggested the need for further investigation. The Court held that, but for the hospital’s breach, the Plaintiff would have undergone surgery by mid-November 2010 and there would have been a “very high degree of probability that she would have had a better outcome”.

As such, the hospital was held liable on appeal, and ordered to award the Plaintiff with $276,319.95 in damages. The appeal against the Plaintiff’s GP, however, was dismissed as the Court found that there was no breach of duty.

How Etheringtons Solicitors Can Help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of negligence matters, whether you are the injured party or a professional.

If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Pet Custody Disputes Arising from Divorce or Separation

Pet Custody Disputes Arising from Divorce or Separation

Divorce or separation has a significant impact on all members of the family, including our beloved pets. Approximately 61% of Australian households have at least one pet and, in the event of a divorce or separation, pet custody can be a significant issue in the dispute due to the considerable emotional attachment we have to our furry friends.

How are pets classified in custody disputes after a separation?

Despite being a beloved member of one’s family, pets are considered a personal property asset under NSW Law. The Family Law Act 1975 (Cth) provides no specific provisions on how pet custody or ownership should be determined in the event of separation. Property settlement principles are applied instead and while we all value our pets emotionally, they are typically not considered to be significant assets in a property settlement. This is unless they have significant monetary value, such as pedigree pets, or are income generating, such as competition/show animals or livestock. Pets that do not fit into these categories are attributed their nominal market value within a property settlement.

Keep in mind that property settlement proceedings in the Federal Circuit Court or Family Court must be commenced within two years from the date of separation for de facto relationships, or one year from the date of divorce for married couples. However, parties can still settle matters by entering into Binding Financial Agreements beyond that time frame.

How would a court handle a pet custody dispute?

The Courts always prefer separating couples to make their own arrangements concerning pet custody. However, when they are asked to make this discretionary decision, the court will take into account any of the following factual considerations:

  • Who purchased the pet and what was the purpose of that purchase?
  • Whose name is the pet registered under?
  • Who has current possession of the pet (including who it resided with before, during and following the separation)?
  • Does one party have a more suitable residence for the pet (we have discussed keeping pets in strata schemes in a previous article)?
  • Is the pet a service animal which one party relies on or will rely on in the future?
  • Who made financial contributions towards the pet – including food or veterinary payments, pet insurance and grooming fees?
  • Who made non-financial contributions towards the pet – including who provided exercise, fed or cleaned up after the pet?

If your child or children have an attachment to the pet, a court may prefer to assign the pet to the primary residence of those children or to move the pet between residences with the children, as it is in their best interest.

The Court aims to resolve disputes in a manner that will avoid further proceedings. A court may make appropriate orders, which could include selling the pet, to distribute its nominal value in the same manner as any other asset, such as a house or furniture.

Davenport & Davenport (No 2) [2020] FCCA 2766

In this recent case, the Husband applied for interim orders for shared custody of the dog which had remained with the Wife following their separation, as he was “suffering pain and separation anxiety by not being allowed to have time” with the dog. The Husband had attempted to create a ‘pet custody agreement’ and to visit the dog numerous times since separation, but the Wife had refused access. The Wife was the registered owner and purchaser, but the Husband claimed he had spent $1,633 in financial contributions towards the dog, including food, vet visits and other supplies. The Wife sought orders to instead adjust the parties’ property interests and to keep the dog as part of the final property settlement; as animals have been dealt with by the Court as personal property.

The Federal Circuit Court of Australia found that the issue was merely the alteration of property interests on an interim basis. The Court held that it did not have the jurisdiction to make the shared custody order requested, as the Family Law Act 1975 (Cth) provides no basis for the shared custody of property, including pets, after separation. The Husband’s application was accordingly dismissed.

What options can Etheringtons Solicitors provide?

Etheringtons Solicitors can assist you with negotiations or mediation regarding the ownership or living arrangements (including time allocations, residence and expense payments) of a pet with a former partner.

We understand that your pets represent more than the asset-based approach the Court has to adopt. We suggest negotiation and mediation whenever possible, as both options are more time- and cost-efficient than court proceedings and allow for greater flexibility in the solution developed for your particular circumstances. These negotiations would need to cover who will care for the pet on which days, how handovers will be dealt with, who will meet ongoing and future expenses, who will be responsible for vet checks and who will make major health decisions – these are considerations not dissimilar to parenting orders.

Once parties reach agreement, they can be formalised by way of consent orders with the Court, along with any parenting or property orders as needed.

If you need further advice or assistance with a pet custody dispute or other Family Law matters please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Debt Collection Basics For Business

Debt Collection Basics For Business

If you are owed money for goods or services, the first step in attempting to recover it is generally to send a Letter of Demand to the other party. This letter should set out the amount of money outstanding, a cut-off time to respond by, and if no response is received by you that you will take legal action with no further notice to the recipient.

Letter of Demand

The Letter of Demand is sent by you (or your lawyer) if you are owed the money (the creditor) and it warns the person owing the money (the debtor) that if they don’t pay the debt within a certain time period (such as seven days) they will be sued in court to recover the debt.

A Letter of Demand should be the last letter a creditor sends before issuing court proceedings. While Letters of Demand are not court documents they are often an effective means of forcing the debtor to take action.

It is a good idea to contact us first to ascertain whether it is prudent to proceed with court proceedings and this will usually depend on the size of the debt. Naturally, if the sum owed is small it may not be economically viable to pursue the debt by engaging a lawyer(NB: if they’re doing it themselves it usually won’t cost anything to send the letter). You must ensure however that, in enforcing your rights to recover the debt, you act within the law.

Principles of Debt Collection Fairness

When sending a Letter of Demand, you should be careful not to harass the debtor or send a letter which is designed to look like a court document.

You must not pursue a person for a debt unless you have reasonable grounds for believing the person is liable for the debt.

Time Limits

A creditor has a limited period of time to sue for a debt. In most instances, for debts owed, this will be 6 years.

If the debtor has made no payments towards the debt or has not acknowledged in writing that they owe the debt for a period of 6 years from when the debt arose, then the debt may no longer be recoverable.

Disputed Debts

The debtor has the right to dispute a debt and may do so on the grounds if:

  • it is not their debt;
  • they have already paid the money;
  • they disagree with the amount of the debt; or
  • it is an old debt and they haven’t made a payment for at least 6 years, no court judgment has been entered against them and they haven’t admitted in writing that they owe the debt in that time.

If the debt is disputed, then you, as the creditor, may have no alternative but to commence legal proceedings or to seek to negotiate a compromise with the debtor.

When Your Lawyer Becomes Involved

If you, as the creditor, are not willing to negotiate or wait for payment, you may wish to contact us to assist with pursuing the debt.

If you know the debt is due and payable, and you want to commence legal proceedings, it is prudent to have a lawyer assist you and represent you in court to recover the debt. If your lawyer advises that the size of the debt make their engagement not economically viable, then we may still be able to help you to negotiate a payment plan that is manageable to the debtor and acceptable to you.

It is not in the debtor’s interest to ignore your claim and risk the additional costs of the legal fees and interest on top of the original debt. By following the correct process we can help obtain a satisfactory result for you.

New Customer – Credit Application Process

Before you take on a new customer, you should have the correct systems in place to ensure that you are able to assess the customer’s credit position.

Do you have a credit application process for your new customers?

Your Credit Application and Terms of Trade should provide you with security over the goods which you have sold to the customer and, if the customer is a corporate entity, ensure that the directors of the company provide you with their personal guarantees. You must, however, ensure that you register any security over goods on the Personal Property Securities Register and we recommend that you speak with a lawyer to assist you with this process to ensure that the registration is not void.

If you do not have a system in place, contact us and we will help you put a system in place to protect you and provide you with security for money owed to you. It is important that you have the correct systems and documentation in place before you do or provide credit to any new customers.


You should contact us to discuss your legal rights and obligations if you are owed money or if you owe money to someone else who is threatening court action.

If you would like more information or require assistance or advice on how to proceed in debt recovery matters please contact us on (02) 9963 9800 or via our contact form.



Family Law and Going to Court

Family Law and Going to Court

When a relationship or marriage ends, people often have a fear that they will need to go to court to deal with the separation of joint assets and liabilities, and arrangements for their children. The fear of going to court, on top of the emotional side of separation, can be extremely stressful for those involved.

Do I need to go to Court?

It is not always the case that people automatically need to go to court when their marriage or de facto relationship ends. If the parties to a separation can agree on how they separate jointly-owned assets and liabilities and also have an agreed co-parenting arrangement for  the children there is no need to go to court at all.

Do I need a Lawyer?

You will most likely need a legal document to be drafted to ensure that the agreement between the separated persons is clear, defined and legally binding. This is when a family law solicitor can assist you. Your family law solicitor will be able to explain to you the different types of documents that are available to set out the separation of assets and liabilities. You can also obtain such documentation to set out the children’s arrangements. The Family Law Act 1975 (Cth) sets out how these different agreements function.

There are different types of documents available to you, and your solicitor can also tell you what will work best for your situation. Once you have decided on the type of document you need, your solicitor will be able to draft the document to reflect what you and your ex-spouse have agreed, to ensure that it is clear and binding.

Why Should I get Legal Representation?

Each party will need their own legal representation before signing any documentation to ensure that they obtain independent advice.

Clients often find that once they have entered into binding documents drafted by their lawyer, there are fewer arguments between them and they can move on with their lives with certainty following their separation or divorce.

Contact us

The team at Etheringtons Solicitors are skilled at handling all matters relating to Family Law, and are able to assist with complex cases. If you need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800, via email to [email protected] or enter your details in the form here and we will contact you.

Will my Facebook post affect my employment?

Will my Facebook post affect my employment?

Can an employer intervene in an employees use of social media outside work?

A recent decision by the Fair Work Commission has shed some light on this question showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment on social media channels online.

The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.

Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.

Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.

Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.

The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.

The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.

If you would like to speak with one of our solicitors regarding social media and the workplace, please contact us on 9963 9800 or via our contact form.

The Difference Between a Barrister and a Solicitor

The Difference Between a Barrister and a Solicitor

What Is the Difference Between a Barrister and a Solicitor?

Barristers and solicitors are both people who can assist with your legal matters. The difference between a barrister and a solicitor is the type of legal work they do. In general, a barrister specialises in making court appearances and speaking on your behalf. However, a solicitor often does the preparation work before your court appearance and liaises with the barrister. Barristers are formally trained in court advocacy and cross-examining witnesses.

In most cases, a solicitor will look after your case initially. They will then engage a barrister for court advice and appearances. Barristers do not liaise directly with clients.

When to Involve a Barrister in Your Matter

Clients often ask at what stage we will involve barristers in their matter.  A good way to think about it is that solicitors are like general practitioners and barristers are like specialists. Barristers work in particular areas of law and often speak at court.

Sometimes solicitors will discuss your case with a barrister and ask them to provide a written opinion on the prospects of your case. They might also ask their opinion on a specific issue. If a matter is complex or unusual, barristers might also be involved in the drafting of court documents.

Barrister Costs

Barristers are required to provide you with an estimate of their costs. Their costs agreement and disclosure documents are issued to your solicitor.

Barristers usually charge an hourly rate. They can also charge a daily rate, especially for court attendances or mediation sessions. Some barristers will charge a cancellation fee if a hearing settles or is adjourned.

Choosing a Barrister

You solicitor will choose a barrister based on factors including:

  1. Your financial circumstances;
  2. The type of matter; and
  3. Which barrister they believe is most suitable.

A barrister can be perfectly suited to one type of case but not another.

If you need any legal advice or assistance we are here to help. If you would like to discuss the involvement of a barrister in your legal matter contact us today.