Busa v South Eastern Sydney Local Health District t/as Sydney Eye Hospital

1. [1]

   FREE JA: The appellant, Giovanni Busa (Mr Busa), suffers from hypertension, bilateral proliferative diabetic retinopathy (an eye condition associated with diabetes) and diabetic macular oedema, which involves leakage of fluid from blood vessels in the macular area of the eye. From April 2012 he was under the care of the Sydney Eye Hospital. The respondent, the South Eastern Sydney Local Health District trading as Sydney Eye Hospital, was sued for negligence on the basis that it was responsible for certain acts of doctors employed in the hospital in April 2015.

2. [2]

   The case pressed by Mr Busa at trial focused on a procedure known as “tap and inject” that was performed on 1 April 2015 by Dr Marko Andric, an ophthalmic registrar employed by the Sydney Eye Hospital. Mr Busa alleged that Dr Andric made an excessive number of attempts (namely seven) to tap vitreous fluid from Mr Busa’s eye, and that Dr Andric failed to document the procedure. Mr Busa said that he suffered physical trauma to his left eye, which ultimately led to blindness in that eye, and ongoing pain in the eye. Mr Busa also alleged that he suffered psychological trauma as a result of these breaches of the duty of care owed to him.

3. [3]

   Mr Busa’s allegations failed on the facts. The trial judge did not accept Mr Busa’s account of the tap and inject procedure. His Honour found that only three taps were attempted and there was no failure of reasonable care in the performance of the procedure by Dr Andric. The trial judge found that it had not been established on the balance of probabilities that Dr Andric failed to make notes about the procedure. His Honour determined that even if Dr Andric had failed to take notes, that did not amount to a breach of his duty of care. His Honour also found that Mr Busa failed to establish a causal connection between his psychological condition and the asserted failure of Dr Andric to take notes.

4. [4]

   Mr Busa, who represented himself on the appeal, seeks to challenge these adverse findings on appeal. He also seeks to raise new arguments that stray to varying degrees from the case as determined by the trial judge. For the reasons which follow, his appeal should be dismissed. No proper basis has been demonstrated for disturbing the findings of the trial judge.

Factual background and findings below

1. [5]

   In November 2014 another doctor employed by the Sydney Eye Hospital, Dr Guillermo Fernandez, carried out a procedure to repair a vitreous haemorrhage and tractional retinal detachment in Mr Busa’s left eye. A follow up procedure was performed by Dr Fernandez on 27 March 2015. On 1 April 2015 Mr Busa presented to Sydney Eye Hospital with soreness in his left eye. It was suspected, based on Mr Busa’s treatment history and symptoms, that he was suffering from endophthalmitis, an inflammation of the ocular cavities and adjacent parts of the eye caused by infection in the intraocular fluids. Endophthalmitis is a time-sensitive emergency requiring prompt intervention. The suspected diagnosis precipitated the “tap and inject” procedure being performed by Dr Andric. There was no real dispute at trial that, given Mr Busa’s circumstances and symptoms and the suspected diagnosis of endophthalmitis, this was the correct treatment.

2. [6]

   The tap and inject procedure involves a local anaesthetic followed by the insertion of a fine needle into the eye to extract a sample of fluid (to be tested for infection) and to introduce an antibiotic. The procedure was performed in a treatment room in the emergency department on 1 April 2015. Dr Andric was able to extract a small sample, but not the desired amount. Dr Andric consulted with Dr Fernandez, a more senior ophthalmologist. Dr Andric and Dr Fernandez agreed that it was necessary for the procedure to be completed in theatre. Once in theatre Dr Fernandez performed an intravitreal injection of antibiotics and anti-inflammatories into Mr Busa’s left eye. Dr Fernandez also performed a scan of the left eye known as a “b-scan” (bright scan ultrasonography). The results of the b-scan led Dr Fernandez to conclude that there was no choroidal haemorrhage (being a haemorrhage of the suprachoroidal space in the eye) or retinal detachment following the tap and inject procedure. The evidence of Dr Fernandez in this respect was consistent with his contemporaneous notes and accepted by the trial judge. His Honour found that, contrary to Mr Busa’s claim, Dr Fernandez did not insert a stitch into Mr Busa’s eye.

3. [7]

   His Honour rejected Mr Busa’s contention that Dr Andric made seven attempts to perform the “tap” procedure by inserting a needle into Mr Busa’s eye. His Honour accepted the evidence of Dr Andric, supported by other evidence, that he made no more than three attempts to tap the eye. More detail about his Honour’s findings in this regard is set out below in dealing with grounds one and two of the appeal.

4. [8]

   His Honour found that the tap and inject procedure performed by Dr Andric, while painful at the time, did not cause trauma to Ms Busa’s eye. The tap and inject procedure was found to have been performed by Dr Andric to a standard that was consistent with competent professional practice, as widely accepted in Australia by peer professional opinion. The trial judge heard expert evidence on this and other matters from Dr Gurmit Uppal (a vitroretinal specialist and ophthalmic surgeon) and Dr Geoffrey Cohn (a general ophthalmic surgeon), both called by the respondent, and Dr Pietro Morelli, an Italian based ophthalmologist called by Mr Busa.

5. [9]

   On 4 April 2015 Dr Fernandez observed a vitreous haemorrhage in Mr Busa’s left eye (bleeding in the vitreous cavity of the eye). A b-scan performed on the day confirmed, in the opinion of Dr Fernandez, that the retina had not detached and there was no choroidal haemorrhage. Dr Fernandez observed echoes in the vitreous cavity which he interpreted as a vitreous haemorrhage. His opinion was that this was likely neovascularisation secondary to Mr Busa’s diabetic retinopathy. As explained further below, the trial judge accepted the evidence of Dr Fernandez that the bleeding observed on 4 April 2015 could not have been caused by trauma inflicted on 1 April 2015.

6. [10]

   Mr Busa remained in hospital until 6 April 2015 when he was discharged. His condition was reviewed by Dr Fernandez each day prior to discharge. After his discharge Mr Busa continued to see doctors at the Sydney Eye Hospital as well as his GP, Dr Susino.

7. [11]

   As noted above, the claim in negligence ultimately pressed by Mr Busa at trial had two elements. The first involved an allegation that Dr Andric made an excessive number of attempts to tap vitreous fluid from Mr Busa’s eye. The second was an allegation that Dr Andric failed to document the procedure. Mr Busa failed to establish the factual foundations for his claim in each respect.

8. [12]

   The trial judge also held that even if a breach of duty had been established Mr Busa’s claim would have failed on causation in relation to his physical injuries. His Honour was satisfied that given the extent of the existing problems with Mr Busa’s eyes, particularly the left eye, and the fact that Mr Busa acquired endophthalmitis prior to 1 April 2015, the loss of vision in his left eye would have occurred regardless of the tap and inject procedure having occurred on 1 April 2015. His Honour found that the pain experienced by Mr Busa in his left eye was caused by increased intraocular pressure which was not caused by the procedure on 1 April 2015. As for psychiatric harm, the trial judge found that Mr Busa did suffer from post-traumatic stress disorder and that the disorder is related to his treatment on 1 April 2015, or at least his beliefs about his treatment on that day.

9. [13]

   As to the second allegation, although the respondent was unable to produce contemporaneous notes by Dr Andric, the trial judge was not satisfied that it was established on the balance of probabilities that Dr Andric failed at the time of the procedure to make notes of what he did. While recognising that a failure to document a procedure may be relevant to a broader failure to treat or advise a patient in the manner required by the doctor’s duty of care, the trial judge expressed doubt about the proposition that a doctor owes a more specific duty to a patient to make notes of what the doctor said or did. His Honour determined that even if Dr Andric had failed to take notes, that did not amount to a breach of his duty of care. His Honour also found that Mr Busa failed to establish a causal connection between the asserted failure of Dr Andric to take notes and the psychiatric condition of Mr Busa.

Challenge to findings about how the tap and inject procedure was performed – Grounds one and two of the appeal

1. [14]

   Mr Busa’s case at trial was that Dr Andric made seven attempts to perform the tap procedure, which was excessive, negligent and caused physical trauma to the eye, as well as psychological harm. Mr Busa relied in this regard on his own evidence about what had occurred on 1 April 2015, as well as the evidence of his sister Tommasina Antonelli, who had accompanied him to the hospital.

2. [15]

   Mr Busa’s evidence was that he was able to observe what occurred and counted the number of attempts that Dr Andric made to tap fluid from his eye. He counted eight attempts (one of which, on the theory of Mr Busa’s case, would have been for the injection of a local anaesthetic, leaving seven attempted “taps”). Mr Busa said that when the last needle went into his eye, he felt excruciating pain and his left eye seemed to burst like a balloon.

3. [16]

   Ms Antonelli was in an adjacent waiting room when the procedure occurred. She gave evidence that she heard Mr Busa scream in extreme pain and fear. She said that Dr Andric then opened the door to the room where the procedure was taking place and asked Ms Antonelli to come in, telling her that he had “tried seven times with the needle” but was still unable to extract any fluid.

4. [17]

   The evidence given by Mr Busa and Ms Antonelli about what occurred on 1 April 2015 was inconsistent in various respects with the evidence relied on by the respondent. This included contemporaneous medical records, and evidence from Dr Andric, Dr Fernandez, Dr Capucine Odouard (who examined Mr Busa before he was seen by Dr Andric) and Nurse Pratima Karki, who triaged Mr Busa and was present in the room when Dr Andric performed the tap and inject procedure. The trial judge noted that the witnesses had limited recollection of the events of the day, which was unsurprising given the passage of time, and in such a context the contemporaneous records assumed greater significance.

5. [18]

   Dr Odouard gave evidence, informed by a review of contemporaneous records, that after Mr Busa presented to the emergency department she performed a b-scan which showed that the retina was attached and in the correct anatomical position. Dr Odouard suspected endophalmitis. She immediately escalated her concern to Dr Andric, who was the ophthalmic registrar on duty (and a more senior practitioner than Dr Odouard). She also consulted with members of the vitreoretinal surgical team, Doctors Dagliesh, Fernandez and Gorbatov. The advice of the team was to perform a tap and inject procedure in the emergency department. Dr Odouard communicated this advice to Dr Andric, who assumed responsibility for the tap and inject procedure.

6. [19]

   Dr Andric had limited independent recollection of performing the procedure on Mr Busa. He gave evidence that when performing tap and inject procedures he had never made more than three taps to extract fluid. Although there were no contemporaneous notes by Dr Andric available to him and the Court, his evidence was that this was his usual practice. He was confident in his evidence that he made no more than three taps on Mr Busa’s eye before abandoning the procedure and considering referral of the patient to theatre.

7. [20]

   Dr Andric did abandon the procedure and consulted with Dr Fernandez. They agreed that it was necessary to complete the procedure in theatre, which is what then occurred. Notes of the procedure that were made at the time by Dr Fernandez were in evidence. Dr Fernandez injected antibiotics and anti-inflammatories into Mr Busa’s eye. He performed a b-scan which enabled him to check the posterior segment of the eye and allowed him to exclude choroidal haemorrhage and retinal detachment.

8. [21]

   The trial judge made adverse findings about the credibility of Mr Busa and did not accept that his evidence about what occurred on 1 April 2015 was reliable. His Honour gave a number of reasons for adopting this approach. The contemporaneous hospital records demonstrated that Mr Busa’s recollection of the events of 1 April 2015 was poor and inaccurate in multiple respects. Mr Busa gave evidence that it was his “clear recollection” that Dr Andric had long hair which was shoulder length. He described Dr Andric adjusting his hair during the procedure. This was inconsistent with a photograph taken only two weeks before 1 April 2015 showing Dr Andric with short dark hair. When challenged with this evidence Mr Busa adhered to his recollection and suggested that Dr Andric had altered the date on the photograph. The trial judge held that this assertion, which was not put to Dr Andric in cross-examination, reflected very poorly on Mr Busa.

9. [22]

   The trial judge also found that Mr Busa was wrong in his recollection that Dr Fernandez had stitched his eye. That claim was inconsistent with the evidence of Dr Fernandez and with the notes he made at the time of the procedure. Mr Busa also gave evidence about the visual acuity of his left eye, on 1 April 2015 and before and after that date, which was falsified by contemporaneous medical records. Mr Busa also denied that he was informed on 8 May 2014 that he had suffered a localised tractional detachment, as recorded in the clinical notes of Dr Ho. Mr Busa’s refusal to admit of the possibility that he was wrong when shown the clinical notes caused the trial judge to have considerable doubts about the reliability of Mr Busa’s memory about past events.

10. [23]

    Mr Busa was also shown to have made false statements in an application to Linfox for employment. The trial judge found that this indicated that Mr Busa was prepared to be untruthful to obtain a financial advantage, which reflected adversely on the reliability of his evidence. The conclusion that Mr Busa’s evidence was generally unreliable was further supported by inconsistencies between Mr Busa’s evidence about his prior employment and the account of his employment history given in past permanent incapacity claims. Finally, Mr Busa was found to have made false claims to a psychiatrist, Dr Klug, about having no history of psychiatric illness when he had in fact previously been diagnosed with post-traumatic stress disorder and major depression.

11. [24]

    The trial judge found Mr Busa’s sister Ms Antonelli to be an unreliable witness. Various aspects of her evidence about her attendance at the hospital with Mr Busa on 1 April 2015 were shown by other evidence to be incorrect, in a way which reflected poorly on the general reliability of her evidence. Ms Antonelli’s claims about what Dr Andric said to her were found to be highly improbable given what the contemporaneous records established had occurred. The trial judge found that it did not reflect well on Ms Antonelli that she accused Dr Andric of lying about not having made seven attempts to extract fluid when it was not put to Dr Andric in cross-examination that he was lying. His Honour concluded that Ms Antonelli and Mr Busa “had a fixed view of wrongdoing by Dr Andric, doing what they could to besmirch his evidence, and with no ability or desire to consider alternative possibilities”.

12. [25]

    The trial judge considered but rejected a challenge to the credibility of Dr Andric that was developed by Mr Busa. His Honour found Dr Andric to be a very impressive witness, who presented as a careful and competent doctor. His Honour likewise found Dr Fernandez to be an impressive witness whose evidence, both factual and expert, was accepted. The trial judge recorded that there was no real challenge to the factual evidence given by Dr Fernandez.

13. [26]

    His Honour found that Nurse Karki was not an entirely satisfactory witness, as she appeared to try to reconstruct what had occurred in circumstances where she did not have an accurate recollection. As noted below, however, the evidence of Nurse Karki was accepted on particular points.

14. [27]

    The trial judge was persuaded that Dr Andric did not make more than three injections to withdraw fluid from Mr Busa’s eye. His Honour gave a number of reasons for reaching this conclusion. The first was the unreliability of the contrary evidence given by Mr Busa and Ms Antonelli. The second was acceptance of the evidence of Dr Andric that he was taught that he should not make more than three taps to withdraw fluid. That was consistent with the expert evidence of Dr Uppal and Dr Cohn. Relatedly the trial judge accepted Dr Andric’s evidence as to his usual practice, namely that he had never made more than three taps. It was also consistent with evidence of Nurse Karki, which the trial judge accepted on this point, that she would clearly remember if seven attempts were made with a needle because that was not something that ordinarily occurred. She had no such recollection in relation to Mr Busa.

15. [28]

    The trial judge held that the most likely explanation for Ms Antonelli’s recollection about what Dr Andric said to her is that he reported that he had made “several” attempts to extract fluid, rather than seven. However, his Honour made clear that his finding about what in fact occurred during the procedure did not hinge on this explanation of what Ms Antonelli recalled, but rather upon acceptance of the evidence of Dr Andric.

16. [29]

    The finding of the trial judge that Dr Andric made no more than three attempts to tap Mr Busa’s eye was effectively fatal to the first of the two particularised claims of negligence relied on by Mr Busa. Mr Busa’s first ground of appeal involves a challenge to the finding. Mr Busa asks this Court to find instead that Dr Andric made seven attempts to extract fluid from Mr Busa’s eye. Mr Busa’s second ground of appeal is predicated on Mr Busa succeeding on the first ground of appeal, in that it involves the proposition that making seven taps on the eye is inconsistent with the standard of care of a reasonably competent ophthalmic practitioner.

17. [30]

    Beyond asserting that the trial judge was in error and inviting this Court to make contrary findings, Mr Busa has not sought to identify any error in the reasoning of the trial judge. His Honour undertook a careful analysis of the competing evidence relied on by the parties, which conflicted in a number of important respects. Having rejected the evidence of Mr Busa and Ms Antonelli as lacking credibility, there was no evidentiary basis for the trial judge to find that Dr Andric made seven attempts to tap the eye. Mr Busa has not pointed to any error by the trial judge in describing the effect of the evidence. Nor is it suggested that the trial judge overlooked relevant evidence. Mr Busa merely urges in a conclusory way that this Court should prefer his evidence about what occurred on 1 April 2015, and on that basis overturn the findings below.

18. [31]

    As the respondent correctly submits on appeal, his Honour’s decision to prefer the evidence of Dr Andric and to reject the evidence of Mr Busa and Ms Antonelli was informed by findings about the respective credibility of each witness. In this respect the trial judge enjoyed a considerable advantage over this Court. Mr Busa has failed to demonstrate any defect in his Honour’s careful analysis of the matters bearing on the credibility of the witnesses. Nor has Mr Busa pointed to any feature of the evidence or the reasoning of the trial judge that would support a conclusion that his Honour’s findings were wrong, let alone glaringly improbable, contrary to incontrovertible facts or uncontested testimony, or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [26]-[29]; State of Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 at [119].

19. [32]

    In the circumstances, grounds one and two of the appeal must be rejected.

Trauma allegedly caused by the tap and inject procedure and reliance on b-scan – Grounds four and six

1. [33]

   It is convenient to deal next with ground four of the appeal. By that ground Mr Busa contends that the trial judge erred in not finding that the tap and inject procedure caused physical injury and psychological harm. Based on the particularised claim of negligence that was pressed at trial concerning the way the tap and inject procedure was performed on 1 April 2015, the conclusions reached above would appear to be the end of that part of Mr Busa’s case. On the factual predicate that Dr Andric made no more than three attempts to tap Mr Busa’s eye, there does not appear to have been any basis in the evidence and on the case as pleaded and particularised to find negligence on the part of Dr Andric. No question of causation arises. However, at trial and on appeal Mr Busa also sought to raise apparently freestanding contentions about the trauma caused to his eye by the procedure, whether or not Dr Andric made seven attempts to tap the eye.

2. [34]

   This line of argument strays from the case as pleaded and particularised at trial, such that a question would arise, if the argument otherwise had merit, as to whether it would be open to the Court to find for Mr Busa on this basis. It is unnecessary to resolve that issue. That is because the contentions raised by Mr Busa again fail on the facts.

3. [35]

   The trial judge made a series of findings about the lack of physical trauma resulting from the tap and inject procedure performed by Dr Andric. His Honour accepted that Mr Busa experienced pain as a result of the procedure and that some bleeding may have resulted from the procedure. To the extent that Mr Busa recalled a sensation of his eye bursting like a balloon, the trial judge found the only medical explanation which was consistent with the findings about what in fact occurred was that the removal of a small amount of fluid would have lowered the pressure in the eye, potentially causing the sensation described by Mr Busa.

4. [36]

   However, his Honour accepted the evidence of Dr Andric and Dr Fernandez that Mr Busa’s eye did not suffer trauma as a result of the procedure. That was demonstrated by the evidence of what was shown in the b-scan subsequently performed by Dr Fernandez on 1 April 2015 and by the evidence of Dr Fernandez that he did not detect any significant damage to the eye when he treated Mr Busa in theatre. As the trial judge found, Dr Fernandez was the best person to provide evidence about any trauma caused to the eye by the tap and inject procedure, given that Dr Fernandez examined Mr Busa shortly thereafter, when he took him to theatre and performed a b-scan, and for the five days following.

5. [37]

   Mr Busa raised at trial the possibility that a bleed that was later observed in his eye on 4 April 2015 was the result of some trauma in the eye inflicted on 1 April 2015 during the tap procedure. Dr Fernandez rejected that possibility. His evidence was that if there had been a trauma caused on 1 April 2015 the bleed would have been observed at that time, not three days later. The significance of the b-scan and Dr Fernandez’s analysis of the b-scan and examination of Mr Busa on 1 April 2015 is that this possibility was effectively excluded.

6. [38]

   It was also put to Dr Uppal that a delayed choroidal haemorrhage may have been caused by the tap and inject procedure on 1 April 2015, which in turn caused the vitreous haemorrhage to appear some days later. Dr Uppal’s response was that this was impossible because a vitreous haemorrhage occurs in a different compartment of the eye. Given the nature of the procedure performed on Mr Busa, a later choroidal haemorrhage could only be caused by a separate pressure lowering event affecting that compartment. Dr Uppal’s evidence was that there was no evidence to establish any connection between the tap and inject procedure and a retinal detachment, a choroidal haemorrhage, a profound drop in pressure, or damage to the optic nerve. The trial judge accepted the evidence of Dr Uppal on these matters, which was supported by evidence of Dr Cohn and the contemporaneous observations of Dr Fernandez.

7. [39]

   Dr Morelli disagreed with Dr Uppal and Dr Cohn, and concluded that a choroidal haemorrhage had occurred. The trial judge observed that the basis for Dr Morelli’s opinion was unclear, particularly as a printout of the b-scan itself was not available. Dr Morelli did not provide any reasoned answer to Dr Uppal’s evidence that a choroidal haemorrhage could only have occurred and been observed on 4 April 2015 if there was another event that sharply affected the eye pressure, and there was no indication in the documented clinical history of any such event. Mr Busa’s submissions on appeal likewise did not provide any answer to this problem with the evidence of Dr Morelli.

8. [40]

   The evidence of Dr Morelli at trial involved certain criticisms of the steps taken by the treating doctors which did not form part of the pleaded case ultimately pressed by Mr Busa. For example, Dr Morelli expressed the opinion in the conclave that instead of conducting a tap and inject procedure the treating doctors should have performed an early vitrectomy. Mr Busa did not, however, rely on such an allegation as part of his claim in negligence at trial. It is not open to Mr Busa to advance such a case on appeal and he did not seek to do so.

9. [41]

   Dr Morelli also suggested in the conclave that damage was caused to the optic nerve of Mr Busa because the needle used in the tap and inject procedure went into a gas bubble, causing Dr Andric to extract too much air from the eye which lowered the pressure in the eye and caused it effectively to collapse. The hypothesis of Dr Morelli was that a gas bubble was introduced through the syringe. This was a point that Mr Busa sought to reagitate on appeal. In the course of his submissions Mr Busa relied on an alternative hypothesis that there was gas remaining from the procedure on 27 March 2015 which made the tap and inject procedure highly dangerous and caused the pressure that was burst by Dr Andric. On either of the underlying hypotheses, there was no pleaded allegation to this effect ultimately relied on at trial and it was not put to Dr Andric in cross-examination that he had caused damage to the eye in this way. In any event the trial judge rejected the argument on the facts. His Honour found that Dr Morelli, despite advancing this theory, did not point to any evidence to substantiate the assertion that Dr Andric had in fact caused damage to the optic nerve in the way hypothesised.

10. [42]

    The proposition was again answered by the evidence of Dr Uppal. He explained that if there was such an extraction of air leading to a dramatic drop in pressure the eye would “literally collapse on itself”, resulting in a “suprachoroidal or super massive choroidal haemorrhage”. The consequences would be “immediately obvious” on the b-scan performed on that day by Dr Fernandez. As Dr Uppal observed in his evidence, the b-scan performed by Dr Fernandez “categorically says no choroidal haemorrhage”.

11. [43]

    As with grounds one and two, in seeking to reagitate this point on appeal, Mr Busa has not sought to explain by reference to the reasoning of the trial judge or the evidence why it was erroneous to conclude that no relevant trauma to the eye was caused to Mr Busa’s eye by the tap and inject procedure performed by Dr Andric on 1 April 2015. The proposition that trauma in the form of rupturing and tearing caused by rapid deflation of pressure in the eye was cogently answered by the evidence of Dr Fernandez, informed by the b-scan he performed later on 1 April 2015 and the observations which he made of Mr Busa then and subsequently. As the trial judge noted, there was no challenge to the evidence of Dr Fernandez at trial on this topic. Moreover, the evidence of Dr Fernandez was supported by the expert evidence of Dr Uppal. The evidence of Dr Uppal on the topic involved an emphatic rejection of the possibility of a collapse of the eye caused by the tap and inject procedure.

12. [44]

    Nor has Mr Busa sought to demonstrate on the appeal that it is now open to uphold his claim based on this aspect of Dr Morelli’s evidence. Although Dr Morelli ventured different opinions on the topic, the trial judge gave coherent, logical and in my view compelling reasons for preferring the evidence of Dr Fernandez and Dr Uppal. Credibility considerations again loom large. The trial judge found Dr Uppal to be a very impressive witness. His Honour also proceeded on the basis that unless there was unanimity amongst the three experts he would accept the evidence of Dr Uppal and Dr Cohn over the evidence of Dr Morelli. No submission has been made as to why this Court should nevertheless reject the evidence of Dr Fernandez and Dr Uppal and accept the evidence of Dr Morelli. Ground four of the appeal therefore fails.

13. [45]

    It is convenient in this context to deal also with ground six, which involves a complaint that the trial judge erred by “accepting into evidence an incomplete and non-compliant b-scan document which lacked the essential characteristics of a valid clinical report”. Mr Busa also makes a related complaint that the clinical documentation that was available did not conform with certain administrative policies which he contends governed the hospital. This ground of appeal is, with respect to Mr Busa, misconceived. There was no documented record of the b-scan performed by Dr Fernandez on 1 April 2025 that was available and as such the b-scan itself was not admitted into evidence. The trial judge relied instead on the contemporaneous medical records prepared at the time by Dr Fernandez, as well as the evidence of Dr Fernandez about what the b-scan showed, the observations that were made of Mr Busa and the clinical conclusions drawn from those observations and the b-scan. Such matters were plainly relevant to the issues to be determined by the trial judge (irrespective of any question of compliance with particular administrative standards for record keeping) and were properly considered. No error has been established and ground six should be rejected.

Significance of the absence of notes of the procedure performed by Dr Andric – Ground three of the appeal

1. [46]

   Ground three of the appeal concerns the rejection of the second limb of Mr Busa’s case in negligence, involving psychological harm allegedly caused by a failure on the part of Dr Andric to take notes. Mr Busa faces a number of hurdles before he can succeed on ground three of the appeal. He bore the onus of proving at trial that Dr Andric had failed to take notes of the tap and inject procedure on 1 April 2015, and the trial judge found that he did not discharge that onus. The trial judge found that even if he had accepted the factual allegation by Mr Busa, he was not satisfied that Dr Andric owed a specific duty to Mr Busa to take notes. And the trial judge found that even if such a duty had been owed and had been breached, Mr Busa had failed to establish that this caused him psychological harm. Mr Busa must demonstrate error on the part of the trial judge in reaching each of these three conclusions before he can succeed on ground three.

2. [47]

   It is sufficient to focus on the first and third steps, being the factual elements in this part of Mr Busa’s case. No notes of the procedure carried out by Dr Andric were available at trial. The trial judge recognised two possible explanations. One was that Dr Andric failed to make any notes on 1 April 2015. The other was that notes were made but had not been retained on the relevant hospital file. The latter possibility arose in circumstances where there were evident gaps in the records that the hospital had been able to find in response to a notice to produce.

3. [48]

   The trial judge considered the evidence of Dr Andric on this topic. Dr Andric said that it was his usual practice to document the procedure in the patient’s clinical records. If he did not take notes he did not recall why he failed to do so. He had a recollection of Dr Fernandez reviewing the clinical notes as part of the process of preparing for the operation in theatre. He acknowledged the possibility that he may have intended to document his procedure after Dr Fernandez reviewed the clinical notes but overlooked doing so.

4. [49]

   A nurse unit manager, Lesley McDowell, gave evidence at trial explaining that parts of the file for Mr Busa could not be located by the hospital. Ms McDowell was able to demonstrate by reference to a number of specific documents that the file was incomplete and parts of documents had been lost.

5. [50]

   The trial judge found that the net effect of this evidence was that it was insufficient to support a finding that Dr Andric failed to make notes of what he did.

6. [51]

   The conclusion is reinforced by the evidence of Nurse Karki on this topic, to which the trial judge did not specifically refer. Nurse Karki reviewed the clinical notes for Mr Busa and concluded that a page of the clinical notes may be missing. Nurse Karki explained that the usual process for an invasive procedure of the kind performed on Mr Busa is for a “time out” assessment to be performed leading to a “time out stamp” being made in the progress notes. The time out process enables the doctor and assisting clinician to verify certain matters before performing a procedure. Nurse Karki could not locate either a time out stamp or the doctor’s clinical entry in the notes. Such an absence is “very unusual” according to Nurse Karki. Likewise, there is no record in the available copy of the notes of the patient handover that would, as a matter of standard practice, usually be documented when a patient is admitted to the hospital from the emergency department. The evidence of Nurse Karki provided further support for the possibility that important parts of the hospital file, including potentially notes made by Dr Andric, had gone missing.

7. [52]

   Mr Busa’s notice of appeal does not identify any error in the judge’s findings in this regard or demonstrate why this Court should reach a different conclusion on the available evidence. Mr Busa’s written and oral submissions suffered from the same deficiency. Instead, Mr Busa has sought to engage with the secondary legal question of whether a failure to make clinical notes of a procedure amounts to a breach of duty. In support of that argument Mr Busa again seeks to rely on NSW Health policy documents, with a view to showing that the taking of clinical notes is a requirement of practice as a medical practitioner. That legal question does not arise unless the anterior factual allegation that Dr Andric failed to take notes has been made good.

8. [53]

   No error has been shown in the reasoning of the trial judge on the factual question. In the context of competing possibilities, neither of which was established or excluded by the evidence, the trial judge was entitled to conclude that the plaintiff had failed to discharge his onus. In those circumstances the legal question concerning the alleged duty to take notes does not arise and it is preferable not to venture a view about the hypothetical issue.

9. [54]

   As to the finding on causation, the proposition advanced at trial was that the failure to document the procedure was causative of psychological harm because it perpetuated Mr Busa’s post-traumatic stress disorder as the discovery of the absence of notes caused Mr Busa to distrust the hospital, and possibly doctors more generally. The trial judge considered the evidence of Mr Busa and of the experts who gave evidence at trial about Mr Busa’s psychological condition. The evidence supported a conclusion that Mr Busa suffered from post-traumatic stress disorder, but did not establish a sufficient causal connection with any failure to take notes or the discovery of the absence of notes.

10. [55]

    Mr Busa gave no evidence that the absence of notes of the procedure by Dr Andric (as opposed to the procedure itself) caused him psychological distress or injury. Nor did Dr Peter Klug, the psychiatrist called by Mr Busa, refer to the absence of notes as a relevant causative or exacerbating event. The evidence of Dr Klug recorded the matters about which Mr Busa had made complaint. Mr Busa made no complaint to Dr Klug even about concern, upset or distress associated with a lack of notes being taken of the procedure or the discovery of the absence of notes. Dr Klug expressed the view that the seminal traumatic event was the procedure on 1 April 2015, although subsequent events may have been exacerbating and perpetuating events.

11. [56]

    Dr Angelo Virgona, the psychiatrist retained by the respondent, did refer to the discovery that there were no notes of the procedure available as a source of distress for Mr Busa. Dr Virgona’s evidence was that Mr Busa developed post-traumatic stress disorder as a result of a combination of traumatic incidents occurring in the treatment of his eyes. One of the distressing experiences that related to Mr Busa’s stress disorder was the absence of notes of the 1 April 2015 procedure.

12. [57]

    His Honour was not satisfied that the absence of notes contributed to the psychological harm suffered in a way that satisfied the requirements of causation under s 5D of the Civil Liability Act 2002 (NSW). The absence of notes was not a necessary condition for the post-traumatic stress disorder. The most that could arguably be said on the available evidence was that the discovery of the absence of notes by Mr Busa merely exacerbated an already existing psychological condition in some minor way. His Honour does not appear to have been satisfied in the final analysis that any level of material contribution had been established. In any event, while recognising that, pursuant to s 5D(2) of the Civil Liability Act, there may be exceptional cases where a negligent party is responsible for harm even if the negligence cannot be established as a necessary condition of the harm occurring, the trial judge was not satisfied that this was such an exceptional case.

13. [58]

    Again, Mr Busa has failed to engage with the findings of the trial judge in relation to causation and no error is disclosed. It follows that even if Mr Busa was able to demonstrate that the trial judge should have found that Dr Andric failed to take notes in circumstances where he had a duty in tort to do so, that would not be a sound basis to allow the appeal given the adverse finding on causation in respect of which no error has been demonstrated.

Alleged error in relation to consent forms – Ground five of the appeal

1. [59]

   By ground five of his notice of appeal, Mr Busa argues that the trial judge erred by dismissing Mr Busa’s argument that the procedures were performed without valid and informed consent. In this respect Mr Busa points to alleged irregularities in the consent form that was in evidence and argues that the form does not comply with the requirements of the NSW Health “Consent to Medical Treatment Manual”.

2. [60]

   The ground of appeal involves an unsound premise that Mr Busa argued at trial that the procedures were performed without valid and informed consent. Mr Busa did not in fact advance such an argument. The only aspect of Mr Busa’s case at trial touching on this topic was a suggestion in Mr Busa’s evidence that there was a problem with the consent form because the signature on the form was not his. However, the trial judge noted that this was not a proposition that was ultimately pursued by Mr Busa. Mr Busa on appeal has not suggested that the trial judge erred in this assessment of the case that he ran. There was no pleaded case at trial that Mr Busa had been subjected to procedures without his consent. Mr Busa did not give evidence that he did not in fact consent to the procedures and it was not put to any of the treating doctors that he did not consent. While there was a particular of negligence to the effect that Mr Busa had not been warned of the likelihood of excruciating pain, that particular was not ultimately pressed.

3. [61]

   It is not open to Mr Busa to pursue a case on appeal that the procedures were performed without consent. An allegation that medical procedures occurred without consent plainly raises significant factual issues that could have been met by evidence at trial, had the point been taken. In the circumstances, there is an irremediable prejudice to the respondent and the ground cannot be raised for the first time on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33.

Alleged error in rejection of expert report of Dr Morelli of August 2021 – Ground seven

1. [62]

   Mr Busa contends that the trial judge erred by excluding a report of Dr Morelli of 2 August 2021, in circumstances where Dr Morelli provided important evidence about the delay in surgical intervention, the management of Mr Busa’s vitreous haemorrhage and the adequacy of discharge instructions and follow up care. This is said to involve a denial of procedural fairness, in a way that materially affected the outcome of the case.

2. [63]

   In advancing this ground Mr Busa did not engage with the circumstances surrounding the proposed tender of the 2 August 2021 report. In response to objections notified by the respondent a redacted report was prepared by Mr Busa’s legal representatives to reflect the fact that most of the report was not relied on. The trial judge observed that the redactions left “very little” of the report. His Honour rejected the tender of those remaining parts of the report. Dr Morelli in preparing the report had failed to acknowledge the Expert Witness of Code of Conduct. He also failed to explain the basis for opining on professional practice in Australia. Most tellingly, the trial judge found that it was not possible to ascertain from the report what information Dr Morelli had relied on in expressing the opinions that he did. It was apparent that Dr Morelli relied on the account given by Mr Busa and his sister, and also that he had certain documents from the hospital records. However, those documents were not identified or identifiable.

3. [64]

   Mr Busa has not demonstrated any error in this reasoning of the trial judge. Mr Busa’s complaint, at least in part, appears to be more about the rejection of the substance of Dr Morelli’s evidence rather than the admissibility of the report of 2 August 2021. The lack of acknowledgement of the obligations of Dr Morelli under the Code of Conduct was a matter that the trial judge was entitled to take into account in determining whether the expert report was unfairly prejudicial and inadmissible. Likewise, the lack of clarity as to the factual underpinnings of Dr Morelli’s report was a matter that was critical to understanding the probative value of his opinion and its admissibility as expert evidence, and a source of unfairness for the respondent in having to engage with the report. Although not explicit in the reasons of the trial judge, it is apparent that his Honour considered the probative value of the report to be substantially outweighed by the danger of unfair prejudice to the respondent, warranting exclusion of the evidence under s 135 of the Evidence Act 1995 (NSW).

4. [65]

   His Honour did not err in his assessment of either the probative value of the evidence or its prejudicial effect. Nor has Mr Busa shown any error in the exercise of the trial judge’s discretion to refuse to admit the evidence.

5. [66]

   Moreover, Mr Busa has not established that the omission of this particular report produced any unfairness, in circumstances where Dr Morelli participated in a conclave and was party to a joint report with the other expert ophthalmologists which dealt with the same topics covered in the 2 August 2021 report. As the respondent correctly submits, putting to one side an issue regarding the consent form which was not pressed, the three topics covered in the redacted report – being criticism of the experience of Dr Andric, the adequacy of the extraction of fluid achieved by Dr Andric and the significance of the vitreous haemorrhage seen on 4 April 2015 – were all matters that Dr Morelli was able to address in the joint report. In the circumstances, even if Mr Busa had been able to demonstrate error in the treatment of the 2 August 2021 report by the trial judge, there would be a live question as to the materiality of that error.

Alleged error in failing to address improper discharge and inadequate treatment documentation – Ground eight

1. [67]

   The final ground of appeal involves a complaint that the discharge documentation for Mr Busa contained errors in its description of his condition. Mr Busa contends that the trial judge failed to determine whether the discharge documentation met applicable clinical and legal standards.

2. [68]

   This is a further ground which Mr Busa cannot properly pursue on appeal. There was no pleaded case pursued at trial about the accuracy or adequacy of the discharge documentation. In the circumstances the trial judge was not required to make any determination about whether the discharge documentation satisfied clinical or legal standards. Having regard to the points raised by Mr Busa, including about applicable policies governing discharge documentation, resolution of the issue on appeal would involve factual and legal questions that were not the subject of evidence and consideration at trial, or findings by the trial judge.

3. [69]

   In any event, there does not appear to be any ultimate significance to the underlying point that Mr Busa seeks to agitate concerning his discharge documentation. Mr Busa takes issue with the fact that the discharge summary records that he had suffered from endophthalmitis. After extensive analysis of the available evidence the trial judge made a finding that Mr Busa was suffering from endophthalmitis when he attended the emergency department on 1 April 2015. Mr Busa has not demonstrated any error in his Honour’s treatment of the evidence. In any case, the trial judge also found that in circumstances of suspected endophthalmitis the tap and inject procedure was the appropriate response. Again, Mr Busa has not developed any challenge to that conclusion.

4. [70]

   Mr Busa also objects to the fact that the discharge documentation describes the procedure to which he was subject as “elective” in circumstances where it was in fact a response to urgent vision deterioration and associated with pain and swelling. He submits that this reflects a “mischaracterisation” of the procedure which contributed to the judge’s finding that there was no negligent care. However, nothing in the careful reasons of the trial judge bears out this assertion. His Honour placed no reliance on the contents of the discharge documentation in assessing the allegation that the procedure performed on 1 April 2015 was negligent.

5. [71]

   There is no logical connection between any infelicities in the discharge documentation issued on 6 April 2015 and the physical and psychological damage said to have been suffered by Mr Busa as a result of the procedure carried out on 1 April 2015 and the failure to document that procedure. In the circumstances even if there was a proper basis for Mr Busa to pursue this ground of appeal it would not provide a sound basis to allow the appeal.

Application to adduce new evidence

1. [72]

   At the hearing of the appeal Mr Busa sought to rely on evidence that was not before the trial judge. The Court received submissions from both parties and reserved judgment on the application.

2. [73]

   Three items of evidence were the subject of the application for leave, as ultimately pressed:

   1. (1)

      an undated report of Dr Morelli which records further opinions about whether Mr Busa suffered endophthalmitis, whether the presence of gas in the eye at the time of the tap and inject procedure was the cause of harm and the option of performing a vitrectomy rather than the tap and inject procedure;

   2. (2)

      an email from Dr Fernandez to Mr Busa dated 1 February 2019;

   3. (3)

      a case report of 10 July 2023 entitled “Orbital Gas After 25-Gauge Pars Plana Vitrectomy with Incorrect Gas Mixture” authored by a number of ophthalmologists and published on an online collection of ophthalmological case reports.

3. [74]

   In each case, the respondent opposes the Court receiving the further evidence. The respondent submits that the preconditions for the receipt of further evidence have not been satisfied and acceding to the application would cause prejudice to the respondent.

4. [75]

   Mr Busa’s application is made under r 51.51 of the Uniform Civil Procedure Rules 2005 (NSW) and seeks to invoke the power of the Court under s 75A(7) of the Supreme Court Act 1970 (NSW) to receive further evidence on an appeal. Each of the items of evidence concern matters predating the trial and in each case the evidence existed at the time of the trial. In the circumstances, the Court may only receive the further evidence if special grounds are established: s 75A(8). In order to show such special grounds an applicant in Mr Busa’s position must generally show that the evidence could not have been obtained with reasonable diligence for use at the trial, and that the evidence is both credible and highly or relevantly probative: Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [67].

5. [76]

   None of the evidence sought to be relied on by Mr Busa as further evidence satisfies these requirements.

6. [77]

   Mr Busa explained to the Court that he obtained the undated report from Dr Morelli at some point after the trial. It follows that the report in this particular form was not available at the time of trial. However, the substance of the evidence could have been obtained with reasonable diligence by the time of trial. Indeed, as the respondent correctly submits, the further undated expert report of Dr Morelli traverses topics that Dr Morelli has already addressed in previous reports, including in the joint report that he prepared with the other expert ophthalmologists. In circumstances where Dr Morelli was available as an expert and provided multiple reports, Mr Busa had every opportunity to obtain relevant evidence from Dr Morelli. It is not apparent that Dr Morelli expresses any opinion that is relevantly different from opinions that he has already expressed on these topics (which in turn would suggest that the evidence is not highly or relevantly probative), but to the extent there is any such difference there is no suggestion that Dr Morelli was in any way impeded from addressing these matters at an earlier point. The evidence could have been obtained for the purposes of use at trial with reasonable diligence. It would also be prejudicial to the respondent to receive further expert evidence in circumstances where the respondent’s experts have had no opportunity to comment on that evidence, to the extent it does not simply repeat propositions that were advanced by Dr Morelli at trial.

7. [78]

   The email from Dr Fernandez of 1 February 2019 also fails to satisfy the requirements for demonstrating special grounds. As Mr Busa accepts, the email was in his possession prior to trial and could have been put into evidence. Mr Busa submits that it was a failing on the part of his lawyers that the email was not used at trial. It is unnecessary to consider if there is any substance to Mr Busa’s complaints about the forensic choices of his lawyers. Even if Mr Busa had grounds for complaint in that regard it would not avoid the conclusion that the evidence was available, but not deployed in Mr Busa’s case.

8. [79]

   In any event, the email has no probative significance for the issues arising on the appeal. In the email Dr Fernandez indicated that at that point he did not have access to Mr Busa’s clinical records and Dr Fernandez had no clear recollection of the treatment provided on 1 April 2015. The email includes some uncontroversial descriptions of the type of procedure performed on Mr Busa and the nature of endophthalmitis. It follows that even if the evidence could not have been obtained with reasonable diligence for use at the trial special grounds would not exist to warrant the receipt of the evidence on appeal.

9. [80]

   The case report of 10 July 2023 was also capable of being obtained with reasonable diligence for use at the trial. Even if the report itself has potential probative value to the question of procedures performed in circumstances where an eye may be subject to pressure, allowing the report into evidence on appeal would also be highly problematic in circumstances where the report goes squarely to matters of ophthalmic practice and none of the expert witnesses have had an opportunity to explain the significance, if any, of the report.

10. [81]

    For these reasons, none of the further evidence sought to be relied on by Mr Busa should be received as evidence on the appeal.

Orders

1. [82]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      The appellant to pay the respondent’s costs of the proceedings.

2. [83]

   GRIFFITHS AJA: I agree with Free JA.

3. [84]

   PRICE AJA: I agree with Free JA.