Busa v South Eastern Sydney Local Health District t/as Sydney Eye Hospital [2026] NSWCA 4
Authors:
Sarah Henry, Partner | Lesley Bush, Partner | Liz Flannery, Special Counsel
Elspeth Davie, Lawyer
Overview
The NSW Court of Appeal found there was no error by the trial judge in refusing to admit an expert report into evidence. The trial judge had made that decision on the basis that:
- the expert failed to acknowledge the Expert Witness Code of Conduct; and
- it was not possible to ascertain what information the expert had relied on in expressing his opinion.
Therefore it is important experts acknowledge in their report that they have read the Expert Witness Code of Conduct and agree to be bound by it, and set out what information they have relied on in forming their opinion.
The trial judge held that it was difficult to see how a doctor could owe a duty to a patient to make notes, but commented that a failure to make notes may be a breach of the doctor’s professional responsibility. Based on the factual findings of the trial judge, the Court of Appeal said it was preferable not to further address the legal question concerning the alleged duty to take notes. [53]
Makinson d’Apice Lawyers acted on behalf of the Sydney Eye Hospital in the proceedings. Mr Busa’s appeal was dismissed.
Background
On 1 April 2015, Mr Busa (the appellant) presented to Sydney Eye Hospital (the Hospital) reporting sharp eye pain and a ‘tap and inject’ procedure was performed. During this procedure, a needle is inserted to extract a small amount of fluid from the eye and to introduce an antibiotic to treat a presumed infection. Mr Busa alleged multiple taps were performed and as a result, he suffered trauma to the left eye, leading to blindness and psychological trauma. There were no clinical records of the procedure.
At first instance, his Honour Justice Davies of the Supreme Court of NSW did not accept Mr Busa’s account that seven taps had occurred during the procedure. Rather, the trial judge accepted the evidence of Dr Andric, treating ophthalmologist that he did not attempt more than three taps. On that basis, the Court found there was no failure of reasonable care in the performance of the procedure.
Findings of the NSW Court of Appeal
Mr Busa challenged these findings on appeal. The NSW Court of Appeal held (Free JA, Griffiths and Price AJJA agreeing):
- In relation to factual findings, the trial judge has a considerable advantage over the Court of Appeal when considering the credibility of witnesses. The trial judge considered that Mr Busa and his sister lacked credibility and there was no other evidentiary basis for the trial judge to find that Dr Andric made seven attempts to tap the eye.
- The trial judge found there was insufficient evidence to support a finding that Dr Andric failed to take notes of the procedure. Mr Busa submitted that a failure to make clinical notes of a procedure amounts to a breach of duty of care. There had been some discussion of this issue in the trial judge’s decision. However, the Court of Appeal held that since there was no factual finding by the trial judge that Dr Andric had failed to make notes, this legal question did not arise and it was preferable not to consider this “hypothetical issue”. Further, the evidence at trial was that any failure to document the procedure had no causal significance.
- The trial judge rejected Mr Busa’s expert report of Dr Morelli, ophthalmologist (who is based in Italy). Dr Morelli had failed to acknowledge the Expert Witness Code of Conduct and the trial judge was entitled to take this into account when determining whether the report was unfairly prejudicial and inadmissible.
- Mr Busa had also filed a motion seeking to rely on new evidence for the purpose of the appeal, including a new report of Dr Morelli. This evidence already existed at the time of the trial, with the exception of the further report of Dr Morelli which was obtained after the trial. The Court of Appeal may only receive further evidence if special grounds are established (Supreme Court Act 1970 (NSW) s75A(8)). An applicant must generally show the evidence could not have been obtained with reasonable diligence for use at the trial, and that the evidence is both credible and highly probative (Kramer v Stone (2023) 112 NSWLR 564). The further report of Dr Morelli could have been obtained for use at trial with reasonable diligence and therefore the further evidence was not received as evidence on the appeal.
Mr Busa’s appeal was dismissed with costs.
This decision emphasises the advantage of the trial judge when considering the credibility of witnesses and the importance of experts confirming they agree to be bound by the Expert Witness Code of Conduct in their reports. Further, given the factual findings, this case was not a vehicle for the Court of Appeal to express a view about the issue of when a duty of care to take notes may arise.
The judgment can be accessed here: https://www.caselaw.nsw.gov.au/decision/19c2fd71aedc3f80e8d2f3af
For further information regarding the issues raised in the case, please contact Liz Flannery at Makinson d’Apice.