Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital

Medium Neutral Citation: Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130

Hearing dates: 4-7 February 2025; 11-12 February 2025; 14 February 2025

Date of orders: 16 April 2025

Decision date: 16 April 2025

Jurisdiction: Common Law

Before: Davies J

Decision: (1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords: NEGLIGENCE – duty of care – particular relationships – medical practitioner and patient – proceedings for damages as a result of a procedure carried out on the plaintiff’s left eye by a doctor at the Sydney Eye Hospital – where the plaintiff claims to have lost vision in his left eye and suffered ongoing pain and psychiatric damage – whether the defendant breached its duty of care by performing an excessive number of attempts to tap vitreous fluid causing injury – where the plaintiff’s evidence was found to be unreliable – where the defendant’s evidence was borne out by contemporaneous notes and accepted – where it was accepted that no more than three injections were attempted – where the procedure was carried out to a standard widely accepted in Australia by peer professional opinion as competent professional practice – defendant did not breach its duty of care
OCCUPATIONS – medical practitioners – medical records – whether the defendant breached its duty of care by failing to document the procedure – where a number of notes about the procedure were absent – where it was uncertain if the notes were not made or lost subsequently – where the plaintiff claimed that the loss of notes contributed to his PTSD – where there is no requirement on a doctor to make notes – where there can be no breach of duty in omitting to make notes – where the failure to make out a s 5O defence does not impose a liability – defendant did not breach its duty of care
EVIDENCE – expert evidence – whether the evidence of the plaintiff’s overseas treating doctor can be used as expert evidence – where the doctor prepared five reports – where the Expert Witness Code was not acknowledged – where a treating doctor lacks the objectivity of other experts – where the doctor has never practised in Australia – where the reports were obtained without letters of instruction – where the doctor reversed his opinion on a significant matter – where the evidence of the plaintiff’s expert was rejected unless there was unanimity with the other experts

Legislation Cited: Civil Liability Act 2002 (NSW) ss 5D, 5O, 13

Cases Cited: Campbell v Campbell [2015] NSWSC 784
Carangelo v State of New South Wales [2016] NSWCA 126
Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137
Elayoubi v Zipser [2008] NSWCA 335
Fussell v Hanrahan t/as Dignan Hanrahan Solicitors [2024] NSWSC 1388
In the matter of Kit Digital Australia Pty Ltd (In Liq) [2014] NSWSC 1547
Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31; [2010] SASCFC 21
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Watson v Foxman (1995) 49 NSWLR 315
Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238
Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343

Texts Cited: Nil

Category: Principal judgment

Parties: Giovanni Busa (Plaintiff)
South Eastern Sydney Local Health District t/as Sydney Eye Hospital (Defendant)

Representation: Counsel:
A Campbell & M Causbrook (Plaintiff)
B Bradley (Defendant)
Solicitors:
Bellissimo Lawyers (Plaintiff)
Makinson d’Apice (Defendant)

File Number(s): 2020/7945

Publication restriction: Nil

Judgment

1. The plaintiff claims damages from the defendant as a result of a procedure carried out on his left eye by a doctor at the Sydney Eye Hospital (SEH) on 1 April 2015. The plaintiff claims to have lost vision in his left eye and suffered ongoing pain and psychiatric damage from the carrying out of the procedure and its consequences.

Background

2. The plaintiff was born in September 1961 in Plati, Reggio Calabria in Italy. He emigrated to Australia in 1964 with his family.

3. In 1997 he was diagnosed with diabetes, a condition which is prevalent in his family.

4. After leaving school he worked in a number of occupations. Relevantly, in 2008, he recommenced work as a heavy haulage truck driver for J D Transport, a company run by his two brothers, Dominic and Giosofatto.

5. From about 2008 he was diagnosed with hypertension and bilateral proliferative diabetic retinopathy. On 6 April 2012, he came under the care of the Sydney Eye Hospital. He was diagnosed with diabetic macular oedema (DMO) also called diabetic maculopathy. He was treated with retinal photocoagulation by Professor Mark Gillies and given Avastin injections.

6. Dr Gurmit Uppal, one of the expert ophthalmologists called by the defendant, explained that in DMO there is a leakage of fluid from blood vessels that lie in the macular area of the eye as a result of high blood glucose levels from the diabetes. Since 2012 the principal treatment for DMO has been the injection of a drug into the vitreous cavity (IVT injections) called anti-VEGF which blocks the signal that promotes the leakage of fluid from the macular blood vessels. These drugs last only eight weeks within an eye and patients with DMO may require regular and ongoing anti-VEGF IVT injections. The plaintiff was treated in that way since his diagnosis in April 2012.

7. Dr Uppal also explained diabetic retinopathy in this way. He said blood vessels within the human body narrow in their internal lumen with age. High blood glucose levels accelerate that internal narrowing, and the very small blood vessels that feed the retina are very susceptible to this process. They narrow to the extent that insufficient blood is supplied to the retina. This lack of sufficient blood is referred to as ischaemia. If the narrowing of the vessels is severe the retina responds by releasing a chemical signal (VEGF) that encourages the growth of new blood vessels into the retina. These pathological new blood vessels, a process termed proliferative diabetic retinopathy (PDR), grow in the wrong places, are weak and fragile, leak fluid, are prone to bleeding and can lead to scar formation on the delicate retina which can contract leading to very serious sight threatening complications such as retinal detachments.

8. The pathological new blood vessels in PDR can grow out of the plane of the retina and into the vitreous gel. When the vitreous gel moves with normal eye movements or separates, traction is placed on these pathological new blood vessels and this leads to bleeding in the vitreous cavity, termed a vitreous haemorrhage (VH). A VH reduces vision, often profoundly, and obscures the clinician’s view of the retina.

9. In severe PDR abnormal blood vessels can also grow in structures in the anterior chamber of the eye, specifically around the iris and drainage angles that allow outflow of aqueous. These vessels are referred to as rubeosis. If these blood vessels establish themselves then the pressure in the eye can remain elevated despite normal treatments to reduce and normalise the pressure. This is referred to as rubeotic glaucoma. These vessels can also lead to haemorrhage in the anterior chamber.

The events of 1 April 2015

20. There is a considerable dispute about what happened on 1 April 2015.

The plaintiff’s account

21. The plaintiff said that he went with his sister Tommasina (sometime referred to as Tommasa) Antonelli, to the ground floor clinic of the SEH at approximately 1:00pm. He said he went to reception 2 at the clinic and had to wait to see a doctor. Because he was a diabetic he needed to eat, and at 3:00pm his sister bought him a sandwich and a drink.

22. The plaintiff said that at approximately 4:10pm a nurse who was aged approximately in her sixties called him into one of the rooms in reception 2. He went into the room which had a tap for washing hands and appeared to be an examination room. He was asked to sit on a recliner chair which was upright. He said he did not sign any hospital consent form on that day.

23. Approximately two minutes later he said a doctor came into the room and this doctor was Dr Andric whom he had not seen previously.

24. The plaintiff said to Dr Andric:

I had the oil removed four days ago. I noticed the eye was a bit watery today and a bit red. So I was concerned about the eye because I had surgery four days earlier and wanted to get it checked out to make sure everything is okay.

25. Dr Andric replied:

I need to take a sample out of your eye to get it tested for infection. It is going to involve a couple of needles into the eye.

26. The plaintiff said that Dr Andric did not wear personal protective equipment and did not wear a face mask. He placed a hospital bib on the plaintiff’s chest, similar to what is used in a dental clinic. He then placed an eye clamp to his eye to keep the eye open.

27. Dr Andric next put numbing drops into his eye and then a local anaesthetic. Dr Andric then proceeded to attempt to take a sample from the eye. The plaintiff said the nurse was positioned on the plaintiff’s right-hand side, assisting the doctor in providing the needles.

28. The plaintiff said the first attempt was unsuccessful. He said Dr Andric told him he was having difficulties taking a specimen out of the eye. The plaintiff said he could see what the doctor was doing by looking from both of his eyes, and he observed that the time period between finishing the first and commencing the second attempt was approximately two minutes.

29. The plaintiff said Dr Andric proceeded with the second attempt; he threw away the first needle and put on a new needle. The plaintiff was counting the number of needles each time and the plaintiff recalled that each time after the failed attempt from removing the old needle and being passed a new needle from the nurse was approximately two minutes on each occasion.

30. Dr Andric said at the time he was up to the fourth needle, “I am still having problems getting a specimen out. I need to try again”. He said each time Dr Andric inserted the needle the pain was becoming more “aggressive” and he (the plaintiff) was starting to panic. He said he could see that Dr Andric was starting to get nervous. He said Dr Andric had long hair which was shoulder length at the time. He was brushing his hair back each time he was preparing his attempt to undertake each attempt to insert the needle. He observed that the nurse was looking nervous.

31. The plaintiff counted that Dr Andric had undertaken eight attempts. The plaintiff said when the last needle went into his eye, he felt excruciating pain and his left eye seemed to burst like a balloon. He said he could see blood inside the eye and he felt a lot of fluid gushing out of his eye. He started screaming and crying, and screamed for them to call his sister to come in. The nurse tried to clean him up.

32. Dr Andric put his arm around the plaintiff and said to him, “You’re a real trooper”. The plaintiff’s sister grabbed the plaintiff’s hand, and he said words to the effect, “Sina just kill me, kill me, I can’t bear the pain anymore”.

33. Dr Andric told the plaintiff that he had called for a specialist, and in about ten minutes Dr Fernandez arrived. He said that Dr Fernandez examined the plaintiff for about five minutes and then said to Dr Andric and the nurse, “Prepare him for emergency surgery”. At that point, the plaintiff said he knew that something was wrong.

34. At about 5:15pm, the plaintiff was wheeled in a wheelchair to an elevator and taken to level 1 and placed in a waiting room. He was subsequently put onto a hospital bed in front of an operating theatre where he was waiting for an anaesthetist.

The account of the plaintiff’s sister

36. Ms Antonelli said that she went with the plaintiff to the SEH on 1 April 2015. She said:

I say categorically that we did not go to the Emergency Department of the Hospital.

37. She said at some time between 1:00pm to 1:30pm they went to the main entrance of the hospital and went to a reception desk. The plaintiff spoke to a woman saying that he had rung earlier. He provided his name to the lady at reception and she asked him to sit down in an area which the plaintiff’s sister says was identified with the sign “Reception 2”. They sat on chairs facing a door being the entrance to a room. Ms Antonelli attached two colour photographs to her statement (apparently taken by the plaintiff or his brother in 2024) showing the part of the hospital where they entered, sat and waited, and the room where the procedure was carried out. However, she said that a desk depicted in the photos did not exist at the time she and the plaintiff went to the hospital on 1 April 2015.

38. She said they waited for about three hours. She purchased a sandwich and drink for the plaintiff at about 3:00pm.

39. Ms Antonelli said that at about 4:00pm a doctor she now knows to be Dr Andric called the plaintiff to go into the room opposite which she and the plaintiff were sitting. She was aware that the doctor wanted to draw some liquid out of the plaintiff’s eye.

40. After about 15 minutes she heard the plaintiff scream in a howling voice in extreme pain and fear. Dr Andric opened the door and said to her words to the effect:

Can you come in please. I tried seven times with the needle and I still haven’t managed to get any fluid. He has to be taken into surgery to do it”.

41. She saw that the plaintiff was lying in a recliner chair, that he was extremely distressed and that he had bright red blood on his face and t-shirt. She said that the plaintiff screamed out to her saying, “Just kill me. I want to die. I want to die. My eye has been busted”.

The defendant’s account

42. The accounts given by the doctors and nurses at the Hospital who treated the plaintiff derive largely from their examination of the contemporaneous clinical records of the Hospital. Dr Andric has some limited independent recollection of the plaintiff because he had never experienced a patient who reacted the way the plaintiff did when he carried out a tap and inject procedure. Nurse Pratima Karki, the nurse who triaged the plaintiff and who was present in the room when Dr Andric performed the procedure, in her statement claimed to have a greater independent recollection of the plaintiff than was ultimately shown to be the case when she was cross-examined. However, she did have some actual recollection of the plaintiff. Dr Capucine Odouard who examined the plaintiff before Dr Andric saw him, had no independent recollection of the plaintiff or her dealings with him on that day. Dr Fernandez, who injected the antibiotics into the plaintiff’s eye after Dr Andric aborted the procedure, had some limited recollection of the plaintiff.

43. The fact that the doctors and nurses have limited or no recollection of the events of 1 April 2015 is not a matter of surprise or great significance. The events concerned happened almost ten years ago. It appears that the earliest any of these witnesses were required to recall what had occurred was some two and a half years after the events when it seems that the plaintiff first made a complaint to the Health Care Complaints Commission. Some of the defendant’s witnesses were only asked to recall the events after the present proceedings commenced in 2020.

44. The danger of courts relying on human memory has been referred to in many cases over the years, with three cases of significance being Watson v Foxman (1995) 49 NSWLR 315 at 319; Campbell v Campbell [2015] NSWSC 784 at [73]-[77]; and In the matter of Kit Digital Australia Pty Ltd (In Liq*)* [2014] NSWSC 1547 at [7]. I have recently set out the important passages from these judgments in Fussell v Hanrahan t/as Dignan Hanrahan Solicitors [2024] NSWSC 1388 at [45]-[46]. It is not necessary to set them out again, but I have taken account of what was said in those cases.

45. All of the cases which discuss human memory emphasise the greater importance of reliance on contemporaneous records. Those records tend to show in this case, in respect of a number of matters, that the plaintiff’s recollection of events is unreliable. That is not to say that the plaintiff was not endeavouring to tell the truth, and the same may be said of Ms Antonelli, but simply that the effects of time and recall have clouded for them what actually occurred.

46. The plaintiff was seen successively by Nurse Karki, Andrea Brisbane (possibly a nurse), Dr Odouard, Dr Andric and Dr Fernandez. Nurse Karki was involved again as the nurse present when Dr Andric was performing the impugned procedure. Bearing in mind the limits on the individual recollections of the doctors and Nurse Karki, the following are their accounts of what took place on that day, with principal reliance being placed on the contemporaneous hospital records.

Triage Presenting Information: LE- Hx of silicon oil removal under Dr Ho 27/03/2015.C/O of pain, watery eye since 2/7 progressively worsening. IOP R-26, L-32. On G chlorsig, g PF, G HA, G iopidine. Hx of ret det in LE 09/2014.

Triage Additional Presenting Information: LE- Conj injected ++, LE mildly dilated

48. At 1:47pm Ms Andrea Brisbane conducted an eye examination of the plaintiff. The findings were recorded as follows:

Visual Correction Unaided

RVA Distance: 6m

RVA Number of Line: 12

RVA Pinhole: no imp

LVA Distance: hm 1/2 metre

LVA Pinhole: no imp

49. Subsequently, Dr Odouard conducted an examination of the plaintiff although she is unable to remember precisely what time that occurred. As her examination was followed immediately by Dr Andric examining the plaintiff and conducting the tap and inject directly afterwards, it is likely that the examination was later in the afternoon. Dr Odouard said that the examination took place in one of the rooms opposite the chairs where the plaintiff and his sister were sitting. That was not the room where Dr Andric subsequently carried out the impugned procedure.

50. At the time of her examination Dr Odouard said she had available to her the plaintiff’s online records of his previous admissions as well as the paper records created for the presentation on that day including his triage records and Ms Brisbane’s vision assessment. She explained Ms Brisbane’s findings as follows:

On assessment, Mr Busa had a right visual acuity with glasses of 6/12 with no pinhole improvement. His left visual acuity with glasses was hand movements only at 0.5 meters (sic), also with no improvement on pinhole. An improvement with pinhole vision suggests there is a refractive error where the vision can be improved or corrected with glasses or contact lenses and does not necessarily suggest pathology. No improvement in pinhole would suggest a pathological ocular finding resulting in reduced vision, not correctable with glasses.

51. Dr Odouard made handwritten notes of the history she obtained, of her examination of the plaintiff, and of what she did thereafter. The transcription of her notes is as follows:

- 53 y.o. M [Male]

- (L) RD [Detached Retina] repair (Dr Ho) with vitrectomy delamination, laser + oil.

- oil removed on 27/3/15-

- discharged on chlorsig QID, PF [Prednefrin forte] QID [4 daily].

HA [Homatropine] BD [twice daily]- compliant. VA [visual assessment]- CF [Count fingers] @ 20 cm- PH 6/120

- noted sticky discharge 2/7 post-op

- onset of pain yesterday- sharp, periorbital, not with EOM [Extra Ocular Movement]

- optometrist this morning said ↑IOP [Intraocular pressure]

- ᶲ nausea/vomiting.

- ᶲ headaches.

- ᶲ floaters- ? new

- vision- poor post op.

OHx

1. (L) RD repair.

2. T2DM PDR [Proliferative Diabetic Retinopathy]

→ laser PRP [Pan Retinal Photocoagulation] BE [Both Eyes]

3. DMO [Diabetic Macular Oedema]

- ® Avastin every month

- Due for one tomorrow with Dr Ho

| MHx | Meds | | 1. Hernia repair | Novorapid 40u TDS | | 2. Appendectomy | Levemir 40u nocte | | 3. 2 x c-spine fusion | Tramadol 200mg | | 4. Septicaemia | Coversyl | | 5. ↑etoh | Lipitor | | 6. HTN | | | 7. T2DM | Allergies- oxycontin |

SHx – truck driver → not working for 12 mths.

| O/E | (R) VA | GAT | (L) VA | | | 6/12 | | HM @ ½ m | | | | Left 15 right 25 | | | | | | Suture X | | [R EYE DIAG] | √ lids √ | [L EYE DIAG] ←Soft rubeosis | | | √ cornea √ | | X suture mucous | | | √ conjunctiva SCH | | | D/Q [DEEP & QUIET] AC [ANTERIOR CHAMBERS] cell 2+ | | | ᶲ hypopyon | | | | | √ ant [ANTERIOR] vit [VITREOUS] tender globe ++ | | | | Nil view | | | | | [VISION FIELD DIAG] |

B-Scan- retina flat

D/W Dr Dagliesh/Guillermo/Dr Ghorbatrov [sic]

→for tap + inject

(bold italics added)

52. The transcription contains two errors about which Dr Odouard gave evidence. First, under the heading “MHx” what is transcribed alongside the number “5” should read “chol” with an upward pointing arrow. That is an abbreviation for high cholesterol. Secondly, under the heading “O/E” and in respect of the left eye, the reference to “soft rubeosis” should read “SCH rubeosis”. “SCH” stands for subconjunctival haemorrhage.

53. Dr Odouard said that in light of what the plaintiff informed her about what he had experienced since the procedure on 27 March for the removal of the oil, her index of suspicion for endophthalmitis was elevated. The significant matters were the recent surgery, intraocular inflammation with pain and possible new floaters, and a sticky discharge two days following the operation. Dr Odouard said that new symptoms of pain raised the suspicion of endophthalmitis which typically presents around three days following surgery.

54. Dr Odouard said that she performed a b-scan (bright scan ultrasonography) to check the status of the retina and to ensure it was still attached following the surgery. Her noting “retina flat” confirmed that the retina was attached and in the correct anatomical position.

55. Dr Odouard said that a clinical suspicion of endophthalmitis is a time-sensitive emergency that requires prompt intervention. She immediately escalated her concern to the more senior practitioner, Dr Andric, the ophthalmic registrar. She also discussed the plaintiff with Drs Dagliesh, Fernandez and Gorbatov who were members of the vitreoretinal surgical team. Dr Odouard received advice from the vitreoretinal surgical team to perform a tap and inject procedure in the emergency department. She communicated that advice to Dr Andric and handed the plaintiff over to him.

56. It should be noted that the plaintiff denies being seen or examined by Dr Odouard and there was a faint suggestion that Dr Odouard’s notes were fabricated because she did not sign them nor place a time recording on them.

57. Dr Andric’s evidence was that the two rooms opposite the chairs near the desk as shown in the photographs were examination rooms. One of those was used by Dr Odouard and the other was used by Dr Andric. There was a door between the two rooms and generally, he said, the door remained open. Dr Odouard thought it likely that the door would have been closed. Dr Andric said it was common for him to overhear Dr Odouard’s assessment of patients from his room, and he has some limited recollection of hearing her conduct an assessment of the plaintiff although he did not hear the details of the assessment.

58. After Dr Odouard had assessed the plaintiff, she spoke to Dr Andric about the plaintiff. He recalls briefly examining the plaintiff. He agreed with her concern that the plaintiff might have been suffering from post-operative endophthalmitis and he recommended that she promptly raise the plaintiff’s condition with the vitreoretinal team consisting of Drs Dagliesh, Fernandez and Gorbatov.

Type of anaesthetic

Peribulbar block

…

Procedure information

Left eye intravitreal injection of antibiotics and dexamethasone.

Operation description:

Povidone-iodine prep and drape

IVT antibiotics (Vancomycin 1mg/0.0Sml + Ceftazidime 2.25mg/0.05ml) and IVT dexa (0.4mg in 0.1ml). All given in inferotemporal quadrant at 4mm from limbus.

Jelonet and patch eye.

Wound class: clean.

…

Surgeon's note

Post procedure instructions and follow up

Comment

We need to unpatch the left eye to administer the drops and then repatch it:

g Maxidex every hour (24 hours out of 24) left eye

g Ocuflox 6 times day left eye

g Homatropine BO left eye

PO Ciprofloxacine 500mg BD

70. During that procedure Dr Fernandez injected antibiotics and anti-inflammatories into the plaintiff’s eye. Dr Fernandez also performed a b-scan. That allowed him to check the posterior segment of the eye to exclude choroidal haemorrhage and any retinal detachment. He said that neither was observed. At 7.50pm Dr Fernandez made the following notes:

'Fernandez

8-scan → done in theatre

→ [Nil] choroidals

→ [Nil] RD [Retinal detachment]

[IVT antibiotics given (vancomycin 1mg/0.05ml

Ceftazidime 2.25mg/0.05mg)

IVT Dexamethasone (0.4mg/0.1ml)]

→ in infratemporal quadrant.

Plan: -please chart the above medication

On arrival to ward (call SRMO)

Rest as per indications on Sx report’

Subsequent events

71. Thereafter Dr Fernandez reviewed the plaintiff each day he remained in hospital. Dr Fernandez said it was his usual practice that after he had reviewed a patient he would discuss the patient and proposed treatment with a consultant ophthalmologist. The consultant on duty would also typically see the patient during the day.

72. On 2 April 2015, Dr Fernandez reviewed the plaintiff. He performed a vision assessment of his left eye and noted that the plaintiff could count fingers. On an examination of the plaintiff’s eye there was an absence of hypopyon (a whitish layer made from inflammatory cells in the anterior chamber of the eye), but there was a significant number of cells in the anterior chamber, measured as 3+. The intraocular pressure (IOP) of the left eye was 28mmHg (above normal IOP). A decision was made to add Timolol because of the high IOP.

73. Dr Fernandez made the following note on 2 April 2015:

'Post tap & inject #1 → less pain, feeling better

VA L [left] CF (Count Fingers]

[Left eye] 28 [eye diag] [Nil] hypopyon

Cells 3+

(*) Micro- pus cells [Nil] Hazy view

- [Nil] organisms seen Good red reflex

4q [Quadrants]

Imp: Improving

Plan → Continue on same treatment.

No need to patch eye anymore.

Timolol 0.5% BD (LE) [left eye]

(bold italics added)

74. On 3 April 2015, Dr Fernandez reviewed the plaintiff on the ward. Dr Fernandez noted that the plaintiff told him that his pain was significantly reduced. On a vision acuity assessment of his left eye the plaintiff was able to count fingers at 20cm, the amount of cells in the anterior chamber seemed to have decreased, there was no hypopyon, and the view of the fundus of the eye continued to be hazy, but Dr Fernandez could begin to perceive the optic nerve on examination. His eye pressure was still 28mmHg, so that a decision was made to add Iopidine to the treatment. Dr Fernandez made the following entry in the clinical notes:

'Fernandez

Post VT [lntravitreal Therapy] day #2 → ↓↓↓ pain

VA L CF @ 20cm

[Left eye] 28 [eye diag] Cells 1 +

[Nil] hypopyon

(*) no changes in micro histology. [Left eye diag] Hazy view

Nothing new seen. Just about seeing

the disc.

Imp: Improving

Plan: continue on same treatment.

Add lopidine TDS (L/E) [Left eye]'

(bold italics added)

75. On 4 April 2015 Dr Fernandez reviewed the plaintiff who informed him that he no longer had any pain in his left eye. On a vision assessment of the plaintiff’s left eye, the plaintiff could count fingers at 25cm. The eye pressure was 24mmHg and Dr Fernandez observed 3+ pigmented cells in the anterior chamber. He had a fundal view. On the basis of the increased number of cells and the fact that the doctor’s view of the fundus had worsened, Dr Fernandez decided to perform a b-scan.

76. The b-scan confirmed that the retina had not detached and there was no choroidal haemorrhage. However, the doctor could see some echoes in the vitreous cavity which he interpreted as a vitreous haemorrhage. In his view, the vitreous haemorrhage was likely residual neovascularisation secondary to his diabetic retinopathy. Since the plaintiff’s eye pressure was still slightly elevated, the doctor decided to substitute Cosopt for Timolol as it is a more potent therapy.

77. Dr Fernandez wrote the following in the clinical notes:

'Fernandez

Post IVT day # 3 → no pain.

VA L CF @ 25cm

[Left eye] 24 [eye diag] pigmented cells 3+

B-scan → (L) VH [vitreal haemorrhage]

Flat [Nil] coroidals. No view (VH)

Imp: VH

Plan: change Timolol 05% (stop it)

and start on Cosopt BD (LE)

rest continue the same'

(bold italics added)

78. On 5 April 2015, Dr Fernandez again reviewed the plaintiff. The plaintiff told him that he continued to have no pain. On a vision assessment, there was modest improvement to counting fingers at 30cm. There appeared to be fewer cells in the anterior chamber, and the fundal view seemed to have cleared a bit to enable the doctor to see the white of the disc. A decision was made to taper down steroids since there was no pain.

79. Both Dr Fernandez and the consultant considered discharging the plaintiff the following day since in the four days following the tap and inject his clinical evolution had been favourable. The pain had completely disappeared and subjectively, his vision appeared to be gradually improving. They concluded that the endophthalmitis had subsided. The only setback had been the appearance of a vitreous haemorrhage which was not unusual in diabetic patients.

80. Dr Fernandez made the following entry in the clinical notes for that day:

‘Fernandez

Post lVT #4 → [Nil] pain.

VA L CF @ 30cm

[Left eye] 23 [Eye diag] 2-3+ pigmented cells

[Nil] hyphema

[Nil] hypopyon

VH [Vitreal haemorrhage]

(Just see white of disc)

Imp: VH

Plan: ↓ Maxidex to 6 times a day.

Rest the same

DC probably tomorrow'

(bold italics added)

81. On 6 April 2015 Dr Fernandez conducted another review of the plaintiff. The plaintiff informed him that he had no pain and was feeling better. He informed him that he could see more clearly. Dr Fernandez performed a vision assessment and the plaintiff could count fingers at 50cm. Cells in the anterior chamber and the fundal view were similar to the previous day but his intraocular pressure and visual acuity was slightly better. There had been no organisms seen on microbiology or growth in culture. He considered the plaintiff was suitable for discharge.

82. Dr Fernandez made the following entry in the clinical notes for that day:

'Fernandez

Post IVT # 5 → [Nil] pain. Feeling better.

Feels he sees clearer.

VA L CF @ 50cm

[Left eye] 20 [eye diag] 2-3+ pigmented cells.

(*) no growth in microbiology

[Nil] hyphema

[Nil] hypopyon

VH (3-4+)

(Just see white of disc)

Imp: Stable/better

Plan: D/C today

F/U next week Thursday in VR clinic: if there is. If not Monday 13/4/15.

Rest as per discharge summary'.

(bold italics added)

83. The clinical notes show that the plaintiff continued to see doctors at the Sydney Eye Hospital, usually Dr Ho or Dr Wong. The clinical notes disclose that on 23 April 2015 the plaintiff’s visual acuity in the left eye was 6/90 and the plaintiff told Dr Ho that he felt the vision was getting better in the left eye. On 28 April 2015 his visual acuity was recorded as being 6/60.

84. On 4 May 2015 the plaintiff saw his GP, Dr Susino. The visual acuity in his left eye was recorded 6/36.

85. On 7 May his visual acuity was recorded by the SEH at 6/36.

86. On 26 May 2015 the plaintiff’s visual acuity was recorded as hand movements at 1 metre only and it was recorded that the plaintiff had had a further vitreous haemorrhage in the left eye two days earlier. There was recoding of rubeotic glaucoma in the left eye.

87. On 28 May 2015 Dr Ho recorded hand movements at ½ a metre in the left eye and rubeosis in that eye.

88. On 4 June 2015, Dr Chua recorded in the clinical notes that the plaintiff had an increase in intraocular pressure which was measured at 50mmHg. The plaintiff’ underwent Cyclodiode laser surgery and the condition was medically managed by medications.

89. On 9 June 2015 he saw Dr Susino. He reported no vision in his left eye. He reported having been discharged from hospital after symptom management of glaucoma.

90. On 11 June 2015 Dr Higgins at the SEH noted in the clinical notes that the plaintiff presented in extreme pain in the left eye, saying that he had had that pain for the past two to three days. His vision in the left eye was said to be hand movements.

91. On 17 June 2015 he saw Dr Susino saying he needed to go back to the SEH and his left eye was painful.

92. On 18 June 2015 Dr Chua recorded that the visual acuity in the plaintiff’s left eye was recorded 6/120 and that he continued on drugs to treat his raised intraocular pressure.

93. On 7 July 2015 Dr Wong recorded that the plaintiff had received Cyclodiode laser treatment to treat the continued increase in intraocular pressure of 50mmHg.

94. On 16 July 2015 Dr Chua recorded that visual acuity in the plaintiff’s left eye was counting fingers at 1 metre,

95. On 18 August 2015 Dr Wong noted a decrease in intraocular pressure in the left eye to 18mmHg. The visual acuity in the left eye was counting fingers at ½ a metre.

96. On 15 September 2015 Dr Wong recorded that the visual acuity in the left eye was hand movements at 3 metres.

97. On 14 October 2015 the visual acuity in the plaintiff’s left eye was recorded as counting fingers at 1.5 metres. Dr Wong recorded on 20 October 2015 that he could count fingers at 1 metre.

- long discussion w pt today

-pt asking questions about why LE has lost vision

-thinks LE tap and inject for endophthalmitis caused problems

- v. depressed that can’t see LE & can’t work as truck driver or graphic designer

-no current job

-v anxious when has R intravitreal injections as [??] that may lose vision

101. On 19 September 2016 the plaintiff underwent a left phacoemulsification with implantation of intraocular lens and insertion of Baerveldt implant with scleral patch graft.

102. On 17 October 2016 the plaintiff told Dr Susino that he had a sudden loss of vision in his right eye the previous week. On 18 November 2016 he told Dr Susino that he had photocoagulation to the right eye 10 days earlier and he lost vision in the right eye. He was found to have a vitreous haemorrhage. Dr Susino noted that he was visibly upset.

103. On 13 January 2017 Dr Susino recorded this:

Patient very upset about how he has been treated with the long history of eye issues

Sever diabetic retinopathy

Seen multiple time as Sydney Eye Hospital

Saw dr Chang (eye surgeon)_ yesterday, did further procedures to L eye but ultimately has told the patient that the eye needs to be removed – proliferation ++(with angiogenesis high)

Has been advised by Dr Chang that he can drive

currently struggling for income as he cannot get a job due to his eye condition

mood low

but denies any suicidal thoughts

104. By 19 January 2017 it was recorded that the plaintiff was blind in his left eye.

105. The above is a sample only of the consultations the plaintiff had with his doctors over that period to provide an overall picture of what happened with the plaintiff’s eye since the impugned procedure on 1 April 2015..

Assessment of witnesses

(a) The plaintiff

106. I do not accept the plaintiff’s evidence as reliable for what occurred on 1 April 2015 or otherwise as to his recollection for a number of reasons.

107. First, his recollection of the events of the day is poor, as the contemporaneous records demonstrate. He has no recollection of being triaged when he arrived at the hospital. The notes demonstrate that he was. He has no recollection of being seen by Dr Odouard. That is a significant lack of memory given the detail of the information recorded by Dr Odouard which could only have come from the plaintiff. It is also significant because when asked if he would accept that his memory might be a little unreliable because he could not remember seeing Dr Odouard, he replied:

Not on that day. I can never forget that day.

In a similar way, when it was suggested that he had been examined by Dr Odouard in one of the two rooms opposite the chairs, he said:

Never went into those rooms, ever, yeah. I know that hospital inside out.

That evidence was inconsistent with his sister’s evidence that Dr Andric saw the plaintiff in a room opposite to where they sat.

108. He denied that he had a sticky discharge two days after the operation to remove the oil from his eye and denied that he had sharp pain in his left eye when he went to the Hospital on that day. He claimed only to have watery eyes and a red eye. I prefer the contemporaneous medical record.

109. He said in his statement that Dr Andric had “long hair which was shoulder length at the time”. In oral evidence he said that was his “clear recollection”. A photograph of Dr Andric which had been posted online only 2 weeks prior to 1 April 2015 shows that Dr Andric had short dark hair. Dr Andric also denied that he had long shoulder-length hair. When taken to this photograph in cross-examination, the plaintiff said, “…that photograph; anybody can put a date on it, yeah. I’m a graphic designer, it’s very easy to change”. Dr Andric was not cross-examined to suggest that he had altered the date on the photograph. That assertion of the plaintiff reflected very poorly on him.

110. He asserted in his first statement that after the procedure was aborted Dr Andric called his sister, who was outside, and “then told my sister Tomassina “I attempted 7 times”. This was expressed very misleadingly because it emerged in cross-examination that he did not hear that said, rather, his sister told him the next day that Dr Andric said those words.

111. In his first statement he gave this evidence:

57. In or about 6.30pm the bed was then wheeled into the theatre room. I then saw Dr Fernandez who said to me

“I’m going to stitch your eye”.

58. As he was doing this I could feel everything and I felt uncomfortable. I started to move. Dr Fernandez said [to] me

“Don’t move, I am stitching your eye”.

…

61. After Dr Fernandez stitched my eye, the bed was then wheeled into a Recovery room.

112. The plaintiff repeated in a somewhat unresponsive answer during cross-examination:

I could hear everything going in theatre, and he said, "Do not move, I'm stitching your eye", that's what he said in theatre to me.

113. He said further that he could not be mistaken about Dr Fernandez placing stitches in his eyes, and that he was not confusing the occasion with the procedure on 27 March 2015 where Dr Fernadez removed the silicone oil from the plaintiff’s eye, when stitches were placed.

114. In fact Dr Fernandez did not stitch the plaintiff’s eye. I accept Dr Fernandez’s evidence in that regard which is consistent with the notes made of the procedure. There was nothing to stitch; antibiotics were simply being injected into the eye. It may be understandable that the plaintiff might have thought Dr Fernandez was stitching his eye because he did not know exactly what was happening, but his evidence that Dr Fernandez twice said he was stitching the eye is clearly wrong, and is a further indication of the plaintiff’s unreliability about what occurred on that day.

115. In cross-examination the following exchanges occurred:

Q. What do you say to the suggestion that your vision acuity was better on 28 April 2015, after you were discharged from hospital, than what it was on presentation to the hospital on 1 April 2015.

A. No, I wasn't better at all because I lost my vision that day, yeah.

Q. I suggest the records disclose that on 7 May 2015 your vision acuity was 6/36, again better than when you presented to the hospital on 1 April 2015.

A. No, disagree.

116. The reference to losing his vision that day can only be an assertion that he had no vision in his left eye from 1 April 2015; it is not merely an assertion that on 1 April 2015 he had no vision – the question makes that clear. As is made clear above (at [72] to [104) he had vision as measured by various doctors until at least 2017.

117. Secondly, his evidence about the visual acuity of the left eye at various time both before and after 1 April 2015 also does not accord with what is recorded in contemporaneous medical records. In his first statement he said that after removal of the oil on 27 March 2015 his “eyesight had returned back to normal”. In cross-examination he modified that to saying “80% of normal”. However, the Discharge Summary addressed to the plaintiff’s GP, Dr Susino, indicates that visual acuity was hand movements. Further, as Dr Odouard’s notes ([51] above) and notes of the examination by Ms Brisbane ([48] above) make clear his visual acuity in the left eye on 1 April 2015 was hand movements at ½ a metre.

118. As to the position after 1 April 2015, the plaintiff said in his Further Supplementary Statement that on 6 April 2015 when he left hospital “I could only see vague hand movements”. What is recorded in the contemporaneous notes (above [72] to [82]) show that he could count fingers at various distances, the last being 50cm on 6 April 2015. He also said in that statement “As the weeks went by I never regained vision in my left eye”. He told Dr Peter Klug that he was discharged on 6 April 2015 and “to date his vision has not been restored”. The contemporaneous records ([83] to [104] show that his vision fluctuated but certainly improved at various times, including in May to 6/36.

119. Thirdly, on 8 May 2014 Dr Ho diagnosed the plaintiff with a localised tractional detachment. The plaintiff denied being informed of this and of being given advice about it. The clinical records show that Dr Ho recorded that the plaintiff was not a “good surgical candidate at this point in time. Pt [patient] agrees”. When taken to the notes the plaintiff gave this evidence:

Q. Is it possible that you're mistaken and that there was a discussion with Dr Ho on 8 May in relation to the fact that you had a localised tractional retinal detachment?

A. First of all, I've never seen these notes before.

Q. I'm not asking you to say you've seen them; I'm asking whether having seen those notes--

A. No, I don't recall any of this, yeah.

Q. You don't recall it, but is it possible as a fair man?

A. No. If I would have known I had a retinal detachment I would have asked for service straight away, yeah, as I was driving trucks.

Q. And then on 17 June 2014, again you don't need to look at the notes because you don't recall it.

A. Yeah.

Q. Professor Gillies has documented that you had a partial tractional retinal detached retina, and you received advice to "wait for now with further review in two to three months", you don't recall that?

A. No. In fact I don't even recall seeing Dr Gillies in 2014 at all, yeah. I saw Dr Gillies 2012, 2013, but 2014 I basically only saw Dr Ho and a few other intern doctors that were on duty at the time, yeah.

Q. Do you accept that if there is a clinical entry made by Professor Gillies in 2014 it is likely that Professor Gillies saw you in that year?

A. No.

Q. Do you reject the proposition that you may have forgotten that you were advised you had a localised tractional retinal detachment in May 2014?

A. No. I would remember something like that, yeah. My medical notes are all over the place, and missing, yeah.

120. The clinical notes record that he saw Professor Gillies a number of times during that period. For a patient not to remember that he was told he had a retinal detachment shows a poor memory but his refusal to admit of the possibility of it when shown the notes causes me to have considerable doubts about the reliability of his memory about past events associated with his eyes.

121. Fourthly, the plaintiff’s admitted falsehoods in his application to Linfox for employment indicates that the plaintiff is prepared to be untruthful to obtain an advantage, particularly, a financial advantage. When cross-examined about this application, the plaintiff became very emotional, explaining how desperate he was to obtain work to “get some money” so that he and his wife could survive. Whilst on one level his actions in that regard were understandable if not excusable, they still constituted false statements to obtain a financial advantage. The only difference in assessing his evidence (which is given, of course, to obtain damages) is that his evidence is given under oath, and I have some regard to that fact. Nevertheless, it affects his reliability at least.

122. Fifthly, the plaintiff said in his first statement:

5. Prior to the incident at Sydney Eye Hospital I worked as a prime mover truck driver regularly driving interstate.

Contrary to that evidence, the plaintiff lodged Permanent Incapacity Claims asserting that he “became incapable of being gainfully employed” on, variously, 29 June 2014 and 6 November 2014. He could not explain the difference in the two dates but his evidence of being incapacitated for work in June 2014 was inconsistent with his evidence that he took five months off from work up to October 2014 to look after his father. It is also inconsistent with his evidence of driving a vehicle for J D Transport, his employer for some years, from Townsville to Sydney in October 2014 until he had to stop driving because he had “floaties” in his eyes. He said:

I was travelling in and out of New South Wales and Queensland, all the time. Going back and forwards with my job in late – in 2014. Just back and forwards all the time, from Queensland. Yeah, basically Townsville I was working in.

123. Elsewhere in cross-examination he said that he ceased work in November 2014. Again, in Dr Delaney’s report of 18 August 2017 Dr Delaney said:

Mr Busa told me he had worked as a truck driver until the end of June 2014 but he had not worked since.

That was consistent with what appears in Dr Klug’s report:

I understand Mr Busa has not been able to return to work as a heavy freight truck driver since June 2014 due to loss of vision in his left eye.

The plaintiff agreed that what appeared in Dr Klug’s report was consistent with his TPD application asserting 29 June 2014 as the date he had to cease work.

124. Some of the evidence concerning when he ceased work and why was open to the conclusion that a measure of dishonesty was involved in relation to the TPD claims. I am not, however, prepared to say that the plaintiff was dishonest in that regard. What is certainly clear is that this area of his evidence is entirely unreliable, and that reflects on his reliability in relation to the remainder of his evidence.

125. Finally, Dr Klug noted in his report:

There is no past psychiatric history or family psychiatric history.

The plaintiff said in his evidence that that statement was accurate. Yet, as he also agreed, he was diagnosed in 2010 with PTSD and major depression as a result of his mother’s traumatic death, and he made a claim for psychiatric injury consequent on her death. Nor did he report to Dr Klug stress and depression for which he was prescribed antidepressants in December 2013.

(b) Tomassa Antonelli

126. Nor do I consider that the plaintiff’s sister was a reliable witness. First, she did not recall the plaintiff being triaged nor seen by anyone who conducted an eye examination. Secondly, she denied that the plaintiff was seen by Dr Odouard. Thirdly, she said in her statement:

I say categorically that we did not go to the Emergency Department of the hospital,

despite that being exactly where the plaintiff was treated. She was also wrong about the existence of the desk shown in the photographs of the Emergency Department, but that is an understandable mistake of recollection.

127. Fourthly, in her statement she said:

16. I am aware that the doctor wanted to draw some liquid out of John’s eye.

In cross-examination she gave this evidence:

Q. At 16 you say that you're aware that Dr Andric wanted to draw some liquid out of John's eye?

A. That's right.

Q. Are you said (sic) you didn't go into the procedure room with Mr Busa before his procedure.

A. No, I didn't.

Q. When you say you were aware that Dr Andric wanted to draw some fluid, is that something that Mr Busa told you as you were sitting in the waiting area before the procedure?

A. No. He was told that they were going to try and draw out some fluid from his eye to see if there was an infection.

Q. When were you told that?

A. Before he went in.

Q. You tell his Honour that before he'd seen a member of the nursing staff, before he'd seen a doctor, before Dr Marko Andric called him into the room, he knew he was having a tap, some fluid taken out of his eye?

A. That's right.

Q. Isn't it more probable as a reasonable person that before he went into the room to have that tap and inject procedure, he had seen a doctor who had recommended?

A. No.

Q. How did you know before he was called into the room that he was to have the procedure?

A. He was told.

128. In fact, the evidence is overwhelming that it was not until Dr Andric examined the plaintiff after Dr Odouard’s assessment, and he had been directed by the vitreoretinal team to perform the tap and inject, that the plaintiff or his sister could have known that was what was to happen.

129. Fifthly, Ms Antonelli claimed that when she first spoke to Dr Andric after the procedure he said, “I still haven’t managed to get any fluid”. The plaintiff pointed to evidence Dr Andric gave from which the plaintiff submitted Dr Andric thought it was plausible that he told Ms Antonelli he was unable to manage getting fluid. However, the question and answer was this:

Q. Would you perhaps have said something about, "But I'm unable to manage getting fluid" whether it be any fluid or enough fluid?

A. That's plausible. And I would've said - because the point is, obviously, looking back in hindsight, I wasn't able to finish the procedure that needed to be done so I would have said, "Look, I can't do it here. He's in pain. We can do it upstairs where we can give pain relief and you can do it safely."

(emphasis added)

130. It may be observed that the question asked “any fluid or enough fluid”. Dr Andric had been aiming for 0.2mL which was said to be the norm, but he had only extracted 0.1L as the pathology records attest. It is highly improbable that Dr Andric said what Ms Antonelli asserts because he had in fact extracted 0.1mL of fluid.

131. Nor did it reflect well on Ms Antonelli that she asserted Dr Andric was lying when he said he did not make seven attempts to extract fluid. Again, it was not put to Dr Andric that he was lying when he denied making seven attempts. That statement, like the plaintiff’s assertion that Dr Andric might have digitally altered the date of his photograph, suggests two people with 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.

(c) Dr Andric

132. The plaintiff challenged Dr Andric’s credibility relying on four matters; first, his evidence that the door between his room and Dr Odouard’s room was usually open was inconsistent with Dr Odouard’s evidence that it was normally shut; secondly, he had limited recollection of the plaintiff; thirdly, he made no notes of the procedure he carried out; fourthly, a challenge was made on the basis of things said in his statement dated 18 December 2017 which transpired to be incorrect.

133. The first of these matters was trivial and I disregard it. The second is, as I have noted, scarcely surprising. It can be accepted that Dr Andric has limited recollection of what occurred on that day, although he can remember Mr Busa because he had never had a patient who reacted in such a way to the procedure.

134. The statement of Dr Andric of 18 December 2017 came about in this way. The plaintiff wrote to the SEH making a complaint about what happened to him on 1 April 2015. Dr Andric must have been approached by the SEH for a response to the plaintiff’s letter. At the time he wrote the letter Dr Andric had only a redacted copy of Dr Odouard’s notes and nothing more. He accepted that the notes assisted to some extent to help him reconstruct what he believed had happened, coupled with his actual recollection of the way Mr Busa reacted.

135. His letter relevantly said:

As the events occurred in April 2015, my recollection of the events is limited but I will try to describe what I can.

[He then gave evidence of his usual practice when confronted with someone with suspected endophthalmitis, and went on to say:]

Obtaining a vitreous sample from an eye with endophthalmitis is difficult and not always achieved. To obtain a vitreous sample, I am always prepared to try another 2 times to a total of 3 injections or “taps”. …

In cases such as this one, where the patient was already known to the vitreoretinal team which was available for urgent surgery, I would have tried a maximum number of 3 times and if still unable to obtain a sample, referred Mr Busa to VR Fellow Dr Guillermo Fernandez for surgical management.

…

Patients with endophthalmitis would receive urgent surgery after an initial tap and inject and this would have been the case with Mr Busa. The subsequent surgery took place because of the infection, not because of the tap and inject.

…

I also regret that I myself did not ensure more documentation of the procedure. Dr Odouard had initially assessed the patient in her room and written in the notes and I likely took the file into the treatment room for the procedure. It is possible that while trying to reassure Mr Busa and talk to his sister at the end of the procedure, I did not immediately write in the notes as I usually would. At this point, it is possible that the notes went to theatre with the patient and Dr Fernandez without me realising my oversight.

136. There were two criticisms of Dr Andric in respect of this statement. First, it was said that Dr Andric considered he had completed the tap and inject procedure, and, secondly, he said that the reason the plaintiff went to theatre afterwards was because he had endophthalmitis. Dr Andric’s recollection in that regard was wrong, but he gave this evidence about what he had written:

Q. I want to suggest to you that when you were writing this statement, your recollection was that you had completed the tap and inject procedure; that you'd done a tap and then you'd done an inject procedure, and then the patient had been sent off to theatre; is that right?

A. I was under the impression that I did something. I wouldn't have been able to really recall, but from my point of view, I would have - like, I knew that Dr Fernandez was involved. I knew that the plan was to take him upstairs for something, and I didn't know whether that was to finish the tap, to finish the injection, or whether it was to do another vitrectomy, because the issue is that, if you're worried there's an infection in there, your priority is to give the antibiotics, so I don't know whether I was going to do or whether they were going to do it. I just knew that he was going out for something.

Q. Because just on the second page, you said this; fourth paragraph: "Patients with endophthalmitis would receive urgent surgery after an initial tap and inject, and this would have been the case with Mr Busa". Just breaking that down. Are you saying in this - would your Honour want a copy of the document?

HIS HONOUR: If you've got one, that would help.

CAMPBELL

Q. You see that, "Patients would receive urgent surgery after an initial tap and inject". Is that right?

A. It can be. So when I wrote this, it was with - again, with limited notes. I knew that he had something done, but it's quite common that patients do undergo another vitrectomy to remove the debris - to remove the source of the infection - and have that surgery. So that's not unreasonable, and depending on surgeon preference, some people go in early; some people wait a day or two for the original antibiotics to kick in. I'd assume that if I hadn't done it, they would have taken him to theatre to finish it. If I had done it, they would have taken him to go and clear it out.

Q. But you didn't say that, Doctor. You said, "The subsequent surgery took place because of the infection, not because of the tap and inject". What did you mean by that?

A. So I think in the original letter that Mr Busa wrote, I think he was under the impression that they rushed him off to emergency surgery that evening because of something that I had done; because of some trauma or damage that I had caused, and that's why he was rushed off. The reality is that that's not the case. He was rushed off to either administer the antibiotics or get the tap or clear out the infection, but there was no sort of urgency because of anything that I had done, it was just that's what we normally would do.

137. While he was wrong at the time in his recollection of completing the procedure and the reason for the plaintiff going to theatre, his statement is otherwise consistent with his evidence in court that he performed a maximum of three attempts to withdraw fluid. He said in the statement that if he had not been able to complete the procedure he would have called for Dr Fernandez. That is also consistent with what happened.

138. In my opinion, Dr Andric’s mistaken recollection of those two matters does not cause me to doubt the reliability of his evidence now. December 2017 was the first time he was asked to recall this event, and he had only a copy of Dr Odouard’s notes which simply recorded her history and examination of the plaintiff. They did not assist Dr Andric to recall what he did or how and why that came to an end, and why the plaintiff was taken to theatre. In preparation for this case he has seen all of the relevant records of the hospital.

139. I have already commented on the failure (if it was such) of Dr Andric to make notes. Even if he did fail to record what he had done and what occurred, it does not cause me to doubt his credibility.

140. No other evidence was adduced to suggest that he otherwise did not carry out his duties responsibly on that or any other occasion. I consider that he was a very impressive witness. He impressed me as a careful and competent doctor. He did not try to pretend that he remembered more than he actually did. He was clearly very empathetic towards the plaintiff and the very unpleasant experience he had on 1 April 2015. His explanations for why the plaintiff may have believed things about what he remembered and experienced were entirely reasonable including the number of needles he initially laid out, and the pain and blood during the procedure.

(d) Dr Odouard

141. Dr Odouard’s evidence was based almost entirely on what she had written in her notes on the day and/or on the basis of her regular practice. The plaintiff submitted that the reliability of her notes was in issue, seemingly because they were not signed, nor was there any time written against the entry. However, in cross-examination the only faint challenge was on the issue of whether she had written up her notes after the events of 1 April or as she was examining the plaintiff and taking a history. I am entirely satisfied that the notes were made as she went, as she said was the case. An examination of those notes makes it quite clear that it is extremely unlikely that anyone could have retained as much detail as appears in those notes and to have written it up at a later time.

(e) Dr Fernandez

142. It is fair to say that there was no real challenge to the factual evidence given by Dr Fernandez. To the extent that he was challenged in cross-examination it was chiefly about his opinion, which was essentially expert opinion, that it was likely the plaintiff did have endophthalmitis on 1 April 2015. The defendant did not lead Dr Fernandez as an expert witness but counsel for the plaintiff cross-examined him as such, although I drew counsel’s attention to the fact that he was so doing during that cross-examination. I found Dr Fernandez to be an impressive witness whose evidence, both factual and expert, I accept. With regard to such of his evidence as can be considered to be expert evidence, it accords with the evidence of Dr Uppal and Dr Geoffrey Cohn whose evidence I also accept. It should be mentioned that English was not Dr Fernandez’s first language although he did not apparently have any difficulty understanding questions put to him. I mention this only because of the way some of his answers read in passages I shall set out from his evidence.

(f) Nurse Karki

143. Nurse Karki was not an entirely satisfactory witness. Whilst I accept that she had some actual recollection of the plaintiff for the reason she gave, namely, that she had never seen a patient react in the way the plaintiff did to the tap and inject procedure, the main problem with her evidence was that she appeared to try to reconstruct what she thought had happened in some respects based on the reading of the hospital records, but when confronted with other evidence she was forced to admit that her recollection was not accurate.

144. A significant example of this was her repeated assertion in her first statement that she administered Endone to the plaintiff before the tap and inject procedure because he had a painful eye and was anxious. When records were made available showing the time she administered the Endone and the time shown on the pathology records of what had been withdrawn from the plaintiff’s eye by Dr Andric, it was apparent that she gave the Endone to the plaintiff at the end of the procedure. While the question of when the Endone was administered was not in itself of any importance, the certainty with which she included that material in her first statement causes me to scrutinise carefully the remainder of her evidence.

145. In some cases her evidence should be accepted. The hospital notes confirm that she triaged the plaintiff at 1:26pm as she asserted, although the plaintiff has no recollection of such a triage. Further, in many respects, her evidence of what took place during the tap and inject procedure accords with the evidence of Dr Andric, whose evidence I accept. I will refer to that evidence in due course when making findings about what occurred on 1 April 2015.

Findings regarding the events of 1 April 2015

146. I have set out earlier the doctors’ accounts of what occurred on that day. Up to the time that Dr Andric actually carried out the first half of the tap and inject procedure, those accounts are entirely borne out by the contemporaneous notes which were made.

147. Despite the absence of notes concerning the tap and inject procedure, I accept the evidence of Dr Andric that he did not attempt more than three injections to withdraw fluid from the plaintiff’s eye. I do so for a number of reasons. First, the plaintiff’s evidence generally was unreliable in a number of respects, and in particular as to the events of 1 April 2015, for the reasons I have earlier given. In the same way, the evidence of Ms Antonelli is unreliable concerning the events of that day for the reasons I have earlier given. I am, in the first place, unpersuaded by their evidence about what happened and what was allegedly said about the number of injections.

148. Secondly, I accept Dr Andric’s evidence that he had been taught that he should not attempt more than three taps to withdraw fluid. That evidence was consistent with the evidence of Dr Uppal and Dr Cohn. I accept the evidence that he had never done so whenever he had carried out the tap and inject procedure. He said also that there was no point in trying to get a tap after three attempts where he had access to the VR team. This was, in effect, evidence of his usual practice.

149. The plaintiff pointed to what was said in Elayoubi v Zipser [2008] NSWCA 335 at [86]:

In respect of the first contention, the challenge is unpersuasive because it relies upon a purported acceptance of “usual practice”. Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward.

The plaintiff submitted that the tap and inject procedure was not a routine task involving mechanical steps. That was because the expert evidence showed that in the plaintiff’s case the tap would have been unusually difficult because the plaintiff had oil removed and gas inserted into his eye.

150. However, the fact that the task was difficult does not mean that it is performed in a relevantly different manner to other tap and inject procedures. It involved some anaesthetic, the taps (up to three) to withdraw vitreous fluid and the injection of antibiotic into the eye. Dr Andric had performed this about six times in approximately a three-month rotation period in the Emergency Department and many more before and after that time.

151. The significant point about usual practice was the number of taps. A statement that someone never did a particular thing is a stronger statement of usual practice than a statement that the person always did something in a particular way. It has greater force when there is a plausible reason for never doing the thing. Dr Andric gave two plausible reasons for never having tapped more than three times; he had been taught not to, and there was little or no point in doing more than three because nothing is achieved and the patient is likely to be distressed.

152. Dr Andric is supported by Nurse Karki who gave this evidence in cross-examination:

I do not recall the actual vitreous fluid being taken out of the eye. I do not remember him making seven attempts for the tap and inject. If that would have happened, then I would clear (sic) remember, because that's not correct. I mean, no one can go in the eye with seven attempts with a needle.

That evidence has the ring of truth about it, and I accept it.

153. I accept that Dr Andric did not attempt more than three taps.

154. Thirdly, other details of the procedure given by the plaintiff were contradicted by Nurse Karki. She was not passing needles to Dr Andric because that is a sterile procedure and she was not sterile. The plaintiff gave evidence that Nurse Karki cleaned him up after the procedure. She denied that, and was not challenged about it in cross-examination. The plaintiff alleged Dr Andric was not wearing any personal protective equipment when he carried out the procedure. Dr Andric said he was not wearing any such equipment when he first examined the plaintiff but said that he was wearing a face mask and sterile gloves when carrying out the procedure. Nurse Karki also gave evidence that Dr Andric wore a mask and sterile gloves. These parts of Nurse Karki’s evidence accorded very much with what was likely to be true.

155. Fourthly, the plaintiff only heard that Dr Andric had attempted seven times to withdraw fluid from Ms Antonelli the day after the events, although the way that evidence was given in the plaintiff’s statement suggested that he heard Dr Andric say it. Nor does the plaintiff’s evidence that he counted the seven needles that Dr Andric used, plus the one to inject the anaesthetic, withstand scrutiny when both Dr Andric’s and Nurse Karki’s evidence about the handling of the needles is considered. The plaintiff said that the nurse opened a drawer in a stainless steel table and removed a packet containing a needle. He said that she handed needles to Dr Andric when he needed them. Nurse Karki denied that needles were kept in that drawer; it contained post-operative dressings. She denied handing needles to Dr Andric because she was not sterile. I prefer Nurse Karki’s evidence about those matters.

156. What seems to me likely in relation to Ms Antonelli’s evidence of what Dr Andric said is that Dr Andric told her he had made several attempts rather than seven attempts. Whilst I accept that that proposition was not put to Ms Antonelli, it seems to me the most likely explanation to resolve the factual dispute between them. I note in that regard that the plaintiff uses the term “several” in his original complaint letter to the SEH on 1 December 2017, and that Dr Morelli uses the term twice in his original report where he sets out his understanding of what occurred. However, I do not base my finding that Dr Andric did not attempt more than three taps on that explanation, because I accept Dr Andric’s evidence in that regard. It does, however, add support to Dr Andric’s evidence.

157. I accept that the tap procedure was a painful and unpleasant for the plaintiff. All of the doctors say that it is painful, not the least reason for which is that, if the patient is suffering from endophthalmitis, the eye is infected and inflamed. Even if it is only inflamed, and there is no dispute the plaintiff’s eye was inflamed, that adds to the pain. While I accept that the plaintiff said he felt that his left eye seemed to have burst like a balloon, the only medical explanation for that, according to Dr Andric, was that the removal of the small amount of fluid would have lowered the pressure in the eye, and that might be the sensation the plaintiff felt. I accept that there may have been some blood resulting from the procedure as Dr Andric acknowledged.

Q. You may or may not be able to answer this, but it's possible, is it not, that during the procedure that you performed on Mr Busa, that he sustained injury due to trauma?

A. I do not think he did. I think he had a terrible experience, a painful experience, but there was no trauma intraocularly or to the eyeball because of this.

Q. But you don't know, as I understand it, how he went after he went to theatre?

A. But looking at the notes now, I can see that they did an ultrasound that evening. That didn't show that the needle did not cause a retinal detachment, there were no choroidal effusions. If I had done something they in turn would have performed something else, so if I did detach the retina he would have had a retinal detachment repaired that night. If I had caused a choroidal effusion or something like that, then there would be evidence of it, there'd be other scars, there'd be other evidence of injuries afterwards, which it's just not there.

(emphasis added)

Dr Andric doubled his negatives in the highlighted passage. As Dr Fernadez evidence makes clear, there was no retinal detachment as result of the procedure.

161. Dr Fernandez gave this evidence is his second witness statement:

[5] … I can say from the care I provided to Mr Busa subsequently that when I performed a b-scan in theatres, there was no choroidal haemorrhage or retinal detachment following Dr Andric's tap of Mr Busa's eye. I do not know what Mr Busa is referring to when he says at [35] of his statement that 'my left eye seemed to have burst like a balloon. I could see blood inside the eye and I felt a lot of fluid gushing out of my eye'. I did not detect any significant damage as a consequence of Dr Andric's tap when I later managed Mr Busa in theatre.

162. Dr Fernandez was also asked about a bleed he observed in the plaintiff’s left eye on 3 and 4 April 2015. He gave this evidence:

Q. Is it possible that that bleed was sourced, or as a result of some trauma in the eye during the procedure? During the tap procedure?

A. I mean, in a diabetic patient, after surgery, I would expect - I mean, it's not uncommon to have bleeds after surgery. Sometimes hypotony in the eye generates that vessels bleed. Also has more fragile - I mean, causes the vessels to be more fragile. Sometimes it's just proliferation of new vessels. In a diabetic patient that has been vitrectomised and has undergone surgery for his diabetic condition, it's not uncommon to have a possibly of bleeds. And I would think it's more due to his new vessels, or his abnormal vessels due to the diabetes than due to a trauma. I mean, if it had been just after the injection, yeah, I mean we could say. But I mean, this was like three days after.

163. He also gave this evidence:

Q. If he didn't have endophthalmitis, it may well be that the problems that he was encountering during that period from 2 April to 6 April--

A. Mm hmm.

Q. -- were due to trauma related conditions from the procedure. Would you accept that?

A. Sorry. I didn't get that. I mean, if he didn't have endophthalmitis - the second part, I didn't get it. What are you trying to what are you trying to?

Q. That the inflammation, the pressure issues, and the other pathologies that you found may have been caused not by - could have been caused by trauma during the surgery, during the tap procedure.

A. No. As I said before, I mean, he came already with the inflammation. We can discuss if it was infective or just inflammatory - the endophthalmitis - but before the tap and inject, he had it already in the eye, so the tap and inject didn't cause inflammation. The inflammation was previous. We can also argue, why did he have an inflammation or certain inflammation. He was not putting, well, the anti-inflammatory drops we gave him after the removal of silicone oil. We cannot know.

164. Finally, he gave this evidence in re-examination:

Q. I think you were asked this question, and I made a late objection. What do you understand or believe to be the link between the tap by Dr Andric and that second bleed on day 4, if anything?

A. No, I mean, I don't relate one thing to another, and if - if the bleed was associated with the tap, we would have seen the bleed at the moment. At that time. Not three days later.

Expert evidence

165. The plaintiff relied on an Italian ophthalmologist, Dr Pietro Morelli. The defendant relied on Dr Gurmit Uppal, a vitreoretinal specialist and ophthalmic surgeon and Dr Geoffrey Cohn, a general ophthalmic surgeon. The three ophthalmologists conclaved and produced a joint report. Some, but not a great deal, of the issues were agreed amongst the specialists.

166. Dr Morelli provided five reports. They were dated 19 April 2021, 2 August 2021, 18 January 2022, 25 August 2023 and 13 January 2025. The first two reports were obtained by the plaintiff before his present solicitors commenced to act on 31 August 2021. For none of the five reports were letters of instructions sent, even after the solicitors commenced to act. Dr Morelli did not acknowledge the Expert Witness Code until his fourth report of 25 August 2023.

167. Shortly before the experts gave their concurrent evidence the plaintiff sought to tender redacted versions of the various reports. The redactions in the second report left very little of it.

168. I rejected the first two reports. I did so for a number of reasons. First, the Expert Witness Code was not acknowledged. Secondly, although Dr Morelli set out a history of what occurred, largely it appears on the basis of what the plaintiff and his sister told Dr Morelli, and although Dr Morelli said that he had some documents from the SEH, he did not identify those documents. It could not be determined, therefore, what information Dr Morelli had to reach the conclusions he did. Further, it was not established that Dr Morelli was able to opine on professional practice in Australia.

169. The third report was largely a report of an examination conducted by Dr Morelli as the plaintiff’s treating doctor. It did not acknowledge the Expert Witness Code but very little opinion on what had occurred at the SEH on 1 April 2015 was proffered. It had also been heavily redacted by those acting for the plaintiff.

170. The fourth report acknowledged the Expert Witness Code. It was a response to the report of Dr Cohn. Parts were redacted, parts were not pressed and I rejected parts of it. The fifth report was a brief report in the form of a treating doctor’s report. It referred to a consultation in December 2024.

171. There were some practical issues concerning Dr Morelli’s evidence. Dr Morelli did not speak nor apparently understand spoken English although he was able to read English to some extent. The result was that the conclave required an interpreter as did the concurrent evidence in Court. Dr Morelli joined in that concurrent evidence via AVL. Everything said had to be translated and interpreted. Dr Morelli subsequently asserted that the interpreter had not correctly interpreted some of his evidence. The plaintiff’s legal advisors applied for access to the recording of the concurrent evidence so that they could submit it to another interpreter. I granted them such access and received the further interpreted evidence.

The High Court decision in Pilmer v Duke Group Limited (2001) 207 CLR 165 at [82]-[83] supports the proposition that the existence of an ongoing or existing relationship between an expert witness and a party results in a breach of the necessary independence. That case involved an application of the stock exchange rules to the relationship between an auditor and an auditee. In my opinion, those rules and corporations law can have a general utility in deciding what is an independent report.

See also Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137 at [86] and [93].

174. Secondly, Dr Morelli did not practise, and had never practised, as a doctor and, more specifically, as an ophthalmic surgeon in Australia, which meant that he was in no position to make a judgment on Dr Andric or Dr Fernandez in accordance with s 5O of the Civil Liability Act 2002 (NSW). Although no complaint is made about Dr Fernandez in the proceedings, I mention him in this context because of what appears in Dr Morelli’s reports criticising what occurred on 27 March 2015. In short, Dr Morelli blamed the defendant and Dr Fernandez for a lack of infection control, presumably in the procedure carried out by him on 27 March 2015. This is also an indication that Dr Morelli was not acting as an expert to assist the court impartially.

175. In terms of the particulars of negligence now relied upon (as to which, more presently), since s 5O is pleaded as a defence the Court must decide if Dr Andric acted in a manner that at the time was widely accepted in Australia by peer professional opinion as competent professional practice. If he did, then he and, accordingly, the defendant, do not incur a liability in negligence.

176. Many of the questions to the experts in the conclave were predicated on the basis of the standard in s 5O. In respect of some of those questions Dr Morelli quite properly said that he could not provide an opinion on the matter. In respect of other matters he purported to provide an opinion, and in one area relied on a study called the “Early Vitrectomy Study” to substantiate his opinion. It was clear from the other expert evidence that that study probably did not represent Australian practice or protocols. It is also apparent from what appears in his first report (although that report was rejected by me) that Dr Morelli was relying in part on standards in the United Kingdom and Europe without any indication that they had currency in Australia. Moreover, in his second report (although ultimately rejected by me), he opines that the tap and inject procedure should have been done in theatre on the basis that that is what is done in Italy and France, on the basis of a French study. That opinion seems to me to colour Dr Morelli’s evidence about the procedure conducted by Dr Andric.

177. Thirdly, it appears that Dr Morelli’s reports were obtained by the plaintiff and/or solicitors acting on his behalf although no letters of instructions to Dr Morelli were provided. The reports of Dr Morelli, contrary to the requirements of the Expert Witness Code, did not set out the assumptions and material facts, including the documents he had, on which he provided his opinion. Even though no objection was taken to the three of his reports which were admitted into evidence, the absence of the assumptions on which he based his opinions and the absence of what he was asked to provide an opinion about mean that limited weight can be given to those opinions. When assessing Dr Morelli’s evidence, I have given greater attention to what he said in the joint expert report of the conclave and his oral evidence during the concurrent evidence.

Finally, it should therefore be reiterated that the doctors of SSEH (sic) have a double responsibility in the current condition of Mr Busa: having caused the eye infection, post-surgical endophthalmitis, and then treated it negligently and contrary to international guidelines.

179. While the form of this report that was ultimately tendered redacted that conclusion, the statement is consistent with what Dr Morelli said in his two earlier reports, that the plaintiff was suffering from endophthalmitis when he presented to the SEH on 1 April 2015, and that the endophthalmitis was the fault of the SEH for the treatment on 27 March 2015, notwithstanding there was no complaint made about what occurred on 27 March 2015. The significance of the assertion that the plaintiff was suffering from endophthalmitis on 1 April 2015 is that by the time Dr Morelli came to participate in the conclave he had reversed his opinion and maintained strongly in both the joint report and in the concurrent evidence that the plaintiff was not suffering from endophthalmitis.

180. Dr Morelli gave this evidence about his change of opinion:

BRADLEY: Dr Morelli, when you wrote your new supplement opinion on 18 January 2022, you had the benefit of the clinical notes of the emergency department of Sydney Eye Hospital on 1 April 2015, didn't you?

INTERPRETER: Yes.

BRADLEY: In the knowledge of those clinical notes, you purported at that stage that the plaintiff's condition was consistent with an acute post surgical endophthalmitis; correct?

INTERPRETER: Yes.

BRADLEY: Is your position solely changed on the basis of the reporting of the two B CAT scan reports?

INTERPRETER: Not just because of that, but mostly because of that.

BRADLEY: The findings on ultrasound to which you refer may be diagnostic, but the absence of those findings do not exclude endophthalmitis, do you agree?

INTERPRETER: If I have to refer to the criteria used in Europe, yes, that would exclude it. However, what it is in the end is a matter of probability.

(emphasis added)

181. Both Dr Uppal and Dr Cohn gave evidence that endophthalmitis is not diagnosed by the use of a b-scan. In addition, Dr Fernandez said the ultrasounds were not pathognomonic of endophthalmitis. Further, it is apparent from Dr Morelli’s last answer that he relies on a European standard or practice to reach his view that a b-scan is diagnostic in that regard. It is not clear, in any event what documents he had been provided with to substantiate what he says is the report of the b-scans. The documents were not identified to me in submissions or otherwise. Nor did Dr Morelli identify what other matters, apart from the b-scans, he relied on to change his opinion.

182. The significant point is, however, that in his first three reports Dr Morelli was adamant that the plaintiff had endophthalmitis without any qualification and he made serious allegations about the infection control at the SEH, and by implication, against Dr Fernandez, when no such complaint had been made by the plaintiff. At the time of his third report of 18 June 2022, the plaintiff had retained his present solicitors and the amended statement of claim had been filed setting out the particulars of negligence. This is not the evidence of an expert who owes a paramount duty to the court and does not act as an advocate for the plaintiff who by that stage was his patient.

183. Unless there was unanimity amongst the three experts, I accept the evidence of Dr Uppal and Dr Cohn. I found Dr Uppal, in particular, to be a very impressive witness. That is not a reflection on Dr Cohn who had been retained originally to examine the plaintiff and chiefly to report on the plaintiff’s condition and how that affected his life and employment. Dr Cohn became more involved in issues of breach and causation in the conclave and during the concurrent evidence. As I have noted already, to the extent that Dr Fernandez provided expert evidence by reason of questions asked of him in cross-examination, Dr Fernandez’s evidence was entirely consistent with the opinions of Dr Uppal and Dr Cohn.

Did the defendant breach its duty of care?

184. The plaintiff alleged that the defendant, by Dr Andric, breached its duty of care in the performance of the procedure. The particulars of the breach in the amended statement of claim are these:

a) In failing to warn the Plaintiff of the likelihood of excruciating pain;

b) In failing to give the Plaintiff the option of having the procedure performed in theatre, given the likelihood of excruciating pain;

c) In failing to perform the procedure competently;

d) In that multiple and excessive attempts were required to extract fluid;

e) Failing to consider that the Plaintiff’s eye did not contain vitreous when attempting to extract fluid;

f) Failure to terminate the procedure early when fluid could not be extracted;

g) Failure to terminate the procedure early when the Plaintiff became distressed, particularly after bleeding occurred;

h) Failure to perform vitrectomy instead of the procedure which could not have allowed visual recovery;

i) In failing to document the procedure adequately or at all so as properly enable ongoing treatment of the Plaintiff;

j) In failing to properly supervise Dr Andric in the performance of unfamiliar tasks.

185. However, in his final submissions, the plaintiff alleged only two particulars of negligence as follows:

(a) Performed an excessive number of attempts to tap vitreous fluid from the plaintiff’s eye and in doing so caused injury.

(b) Failed to adequately document the procedure.

(a) Performed an excessive number of attempts to tap vitreous fluid from the plaintiff’s eye and in doing so caused injury.

186. The plaintiff’s case in reliance on this particular was, simply, that Dr Andric attempted to tap the plaintiff's eye seven times, and in that way exposed him to significant trauma both physically and psychologically. It was not alleged, despite Dr Morelli’s change of opinion on whether the plaintiff had endophthalmitis, that a tap and inject procedure should not have been carried out. That was despite Dr Morelli’s opinion in the conclave that an early vitrectomy should have been undertaken instead.

187. In the first place, both Dr Uppal and Dr Cohn agreed in the conclave that it accorded with standard, widely accepted practice in Australia by peer professional opinion for an ophthalmic registrar in the position of Dr Andric to attempt the tap and inject procedure absent direct supervision from a consultant. Dr Morelli said that he was not able to comment on the practice in Australia.

188. Secondly, both Dr Uppal and Dr Cohn agreed in the conclave that it accorded with a standard, widely accepted practice in Australia by peer professional opinion for Dr Andric to attempt the tap and inject procedure in the procedure room of the Emergency Department as opposed to doing a vitrectomy or, alternatively, a tap and inject in theatre. Dr Morelli said he could not comment on the matter but he agreed with what Dr Uppal had said in his report of 6 July 2021 that the current practice within his personal ophthalmic group was to perform all IVT injections in a theatre setting. Whilst no complaint was ultimately made about where the tap and inject procedure was carried out, I note that both Dr Uppal and Dr Cohn in their answers in the conclave report said that the tap and inject attempted in the procedure room accorded with a standard widely accepted practice in Australia. This was because they stressed that time was of the essence in performing the procedure because of the speed with which the infection that causes ophthalmitis multiplies.

189. The third aspect of this matter concerns the number of taps that Dr Andric performed. I have already found, for the reasons I gave, that Dr Andric attempted no more than three taps and that that accorded with proper professional practice in Australia on the basis of the evidence of Dr Uppal and Dr Cohn. It is not without significance that in answer to question 7 in the conclave, which asked whether there is a number of taps that would be considered excessive, Dr Morelli said:

The maximum number of taps you could do is as many as you need to do, as long as you avoid causing pain to the patient and loss of vision.

It is a little difficult to understand Dr Morelli’s qualification about avoiding causing pain, because all of the doctors, both expert and otherwise, agreed that the procedure could not be carried out without causing pain. There is no doubt in the present matter that the plaintiff experienced pain and probably some considerable pain because four needles (one being the injection of anaesthetic) were inserted into his eye.

190. The final aspect of the matter is whether, even though Dr Andric only attempted three taps, he caused trauma to the eye in so doing. The best person to provide evidence about trauma to the eye was Dr Fernandez who examined the plaintiff’s eye shortly after the tap and inject procedure when he took the plaintiff to theatre, performed a b-scan, and thereafter examined him each day for five days thereafter.

191. In his second statement Dr Fernandez said that he could not comment on what actually took place in the Emergency Department with Dr Andric on 1 April 2015, but he went on to say:

However, I can say from the care I provided to Mr Busa subsequently that when I performed a B scan in theatres, there was no choroidal haemorrhage or retinal detachment following Dr Andric’s tap of Mr Busa’s eye. I do not know what Mr Busa is referring to when he says at [35] of his statement that “my left seemed to have burst like a balloon. I could see blood inside the eye and I felt a lot of fluid gushing out of my eye”. I did not detect any significant damage as a consequence of Dr Andric’s tap when I later managed Mr Busa in theatre.

192. In cross-examination he gave this evidence regarding the bleed he observed on 4 April 2015:

Q. Is it possible that that bleed was sourced, or as a result of some trauma in the eye during the procedure? During the tap procedure?

A. I mean, in a diabetic patient, after surgery, I would expect I mean, it's not uncommon to have bleeds after surgery. Sometimes hypotony in the eye generates that vessels bleed. Also has more fragile - I mean, causes the vessels to be more fragile. Sometimes it's just proliferation of new vessels. In a diabetic patient that has been vitrectomised and has undergone surgery for his diabetic condition, it's not uncommon to have a possibly of bleeds. And I would think it's more due to his new vessels, or his abnormal vessels due to the diabetes than due to a trauma. I mean, if it had been just after the injection, yeah, I mean we could say. But I mean, this was like three days after.

Q. You understand that Mr Busa says that Dr Andric tried on seven occasions to extract fluid during a tap procedure? You understand that?

A. Yeah, that's what I've read, yeah, in his statement.

Q. And on the last occasion, he experienced excruciating pain - at least on the last occasion excruciating pain - and there was significant bleeding at the time?

A. Mm-hmm.

Q. Do you understand that?

A. That's what I've read in his statement, yes. I mean, bleeding of the eye - I mean, the eye can bleed. But I mean, it doesn't have like - well, has an artery, but it's on the back of the eye. I mean, it's behind the eye. So bleeds from the anterior part of the eye are - I mean, are limited. We cannot think it's like an aorta, or like a heart surgeon that when he opens, it's an enormous bleed, but sometimes even small bleeds - if there is also tears and, like, within the eye and he's crying, it mixes with the blood - and it seems much more than what it really is. Like a drop of blood mixed with the tears might seem that he's trickling like blood when it's just a tinted tear. It's a tear that's tinted with blood.

…

Q. Just finally, doctor - my second finally - as you treated this patient from 2 April 2015 up until 6 April 2015 on the ward--

A. Mm-hmm.

Q. -- the inflammation you noted, could it have been not due to the infection but due to other problems that the eye was having copying with trauma during Dr Andric's procedure?

A. No, because he came with inflammation before the procedure was done before the tap and inject. So he - I mean, we can argue if it wasn't in the - I mean, infective endophthalmitis or unsterile endophthalmitis, but what is for sure is that he came - I mean, he had that endophthalmitis before the tap and inject, so the inflammation was there before the tap and inject.

…

Q. If he didn't have endophthalmitis, it may well be that the problems that he was encountering during that period from 2 April to 6 April--

A. Mm-hmm.

Q. --were due to trauma related conditions from the procedure. Would you accept that?

A. Sorry. I didn't get that. I mean, if he didn't have endophthalmitis - the second part, I didn't get it. What are you trying to what are you trying to?

Q. That the inflammation, the pressure issues, and the other pathologies that you found may have been caused not by - could have been caused by trauma during the surgery, during the tap procedure.

A. No. As I said before, I mean, he came already with the inflammation. We can discuss if it was infective or just inflammatory - the endophthalmitis - but before the tap and inject, he had it already in the eye, so the tap and inject didn't cause inflammation. The inflammation was previous. We can also argue, why did he have an inflammation or certain inflammation. He was not putting, well, the anti-inflammatory drops we gave him after the removal of silicone oil. We cannot know.

193. I have set out above at [160] Dr Andric’s evidence when he was asked if he had caused injury to the plaintiff in the procedure. He there explained why he had not.

194. In the conclave, Dr Uppal gave evidence that when you put a needle in an eye there is always a risk of causing a vitreous haemorrhage. That is a haemorrhage into the central cavity of the eye. However, the haemorrhage will eventually clear and vision will start to recover. Dr Uppal said that the ultrasound taken by Dr Fernandez showed that there was no choroidal haemorrhage which is a much more serious event. Dr Cohn agreed with Dr Uppal.

195. In the conclave, Dr Morelli said that there was damage to the optic nerve from a needle going into a gas bubble. He explained the damage by saying that Dr Andric had sucked up too much air from the eye so that the eye, in effect, collapsed because it was a pressure lowering event. I note that it was never put to Dr Andric in cross-examination that that is what he had done.

196. Dr Uppal’s answer to this during the concurrent evidence was this:

… So just to, again, try and make this as clear as possible for everyone who's a non medic. The needle we use for a tap and inject is of such a small diameter. We're talking a hair. To place that into an eye and extract all of the air, I just can't see that happening. The eye would, in front of you, literally collapse in on itself. I don't think that's - if there had been a dramatic drop in pressure at the time, as the eye collapses in on itself, it stretches the blood vessels at the very edge of the eye in the choroid and this results in a suprachoroidal or super massive choroidal haemorrhage.

This unfortunately is a, more often than not, a sight - an eye-ending event. If such an event had occurred at the time of the tap and inject, there would be a sudden increase in pressure because of the haemorrhage. The pain would be extreme. The pressure would raise so high, patients often are physically sick. This would be immediately obvious on the echo B-scan performed by Dr Fernandez. Even if you ignore any of those clinical signs, the B scan categorically says no choroidal haemorrhage.

197. Whilst the plaintiff was still in theatre, Dr Fernandez performed a b-scan which allowed him to check the posterior segment of the eye to exclude choroidal haemorrhage and any retinal detachment. Dr Fernandez said there was no choroidal haemorrhage nor retinal detachment observed on the ultrasound. The notes he made at that time confirm that evidence.

198. Dr Morelli provided no evidence to substantiate his assertion that Dr Andric had caused damage to the optic nerve.

199. The other basis the plaintiff put forward for suggesting that trauma had been occasioned to his eye by Dr Andric was the haemorrhage observed by Dr Fernandez on 4 April 2015.

200. There were two significant differences of opinion amongst the experts concerning what occurred on 4 April 2015. As I noted above at [75] and [76], because Dr Fernandez observed an increase in the number of cells and his view of the fundus had worsened, he carried out a b-scan. He said that that b- scan confirmed that the retina had not detached and there was no choroidal haemorrhage. However, he could see some echoes in the vitreous cavity which he interpreted as a vitreous haemorrhage. In his opinion, the vitreous haemorrhage was likely residual neovascularisation secondary to his diabetic retinopathy.

201. Both Dr Uppal and Dr Cohn considered that the haemorrhage was a vitreous haemorrhage. Dr Morelli, on the other hand, considered that it was a choroidal haemorrhage, although in the absence of a print of the scans, it is difficult to understand the basis for Dr Morelli’s opinion. That feeds into the second significant difference between Dr Morelli and the other experts.

202. Dr Uppal gave evidence that for a choroidal haemorrhage to happen later there would have to be another event that sharply affected the pressure, and there was nothing in the documentation. Dr Cohn pointed out that the vitreous compartment and the suprachoroidal space were discrete and they do not communicate. Dr Uppal accepted that one could have a delayed suprachoroidal haemorrhage following a procedure such as that performed by Dr Andric but he said it was in the context of a pressure lowering event at the time of the haemorrhage. The evidence followed immediately on from Dr Uppal’s evidence of the size of the needle used for a tap and inject to discount the idea that air had been extracted from the eye that would cause it to collapse.

203. The evidence was as follows, commencing with Dr Uppal’s evidence:

This unfortunately is a, more often than not, a sight - an eye-ending event. If such an event had occurred at the time of the tap and inject, there would be a sudden increase in pressure because of the haemorrhage. The pain would be extreme. The pressure would raise so high, patients often are physically sick. This would be immediately obvious on the echo B-scan performed by Dr Fernandez. Even if you ignore any of those clinical signs, the B-scan categorically says no choroidal haemorrhage.

INTERPRETER: Forgive me, Dr Uppal, the last two words you said - the B- scan is categorical in excluding

WITNESS UPPAL: A choroidal haemorrhage. For a choroidal haemorrhage to happen a week later, there would have to be another event that sharply load the pressure, and there was no such documentation.

BRADLEY: In relation to the haemorrhagic events on 4 April 2015, Dr Fernandez says the vitreous haemorrhage was likely residual neovascularisation secondary to his diabetic retinopathy. Does that seem reasonable to you, Dr Uppal?

WITNESS UPPAL: It does. If there had been, again, a catastrophic choroidal haemorrhage or even a smaller choroidal haemorrhage, the B-scan would have picked this up, and Dr Fernandez undertook a B-scan when he couldn't have a frontal view as we discussed earlier.

BRADLEY: Dr Cohn, do you have anything to add to that?

WITNESS COHN: The vitreous compartment in the suprachoroidal space are discrete. They do not communicate, not from the suprachoroidal space cannot enter the vitreous.

…

CAMPBELL: Swiftly, your Honour. Dr Uppal, you can have a delayed suprachoroidal haemorrhage following procedures such as performed by Dr Andric. It is possible, isn't it?

WITNESS UPPAL: It is. It's usually when there's a drainage procedure that is aimed to low the pressure in an eye. So, for example, glaucoma procedures or if a patient has a wound that gapes and suddenly drops the pressure in an eye.

CAMPBELL: The question was it's possible…

WITNESS UPPAL: In a…

CAMPBELL: Sorry, doctor.

WITNESS UPPAL: Go on. Sorry, please, and then the interpreter.

CAMPBELL: My question was following the procedure such as Mr Busa had on 1 April 2015, it's possible that he could have a delayed suprachoroidal haemorrhage; correct?

WITNESS UPPAL: It is possible in the context of a pressure lowering event.

CAMPBELL: Such as a needle into the eye.

WITNESS UPPAL: No, it would be…

INTERPRETER: Sorry, sir. What was the answer, Dr Uppal, to the question?

WITNESS UPPAL: The answer was, yes, it is possible to have a delayed choroidal haemorrhage, but it would need to be in the context of a pressure lowering event at the time of the haemorrhage.

…

WITNESS UPPAL: That's when the pressure becomes low. So just to, again, explain the mechanism of the eye and how choroidal haemorrhages develop, when there's a sudden pressure lowering event, the eye collapses in on itself and it stretches the blood vessels which normally occupy a space that is almost obliterated. The space suddenly opens up, the vessels are stretched and a haemorrhage occurs. If the interpreter wants to relate that. In answer to your question, yes, certainly giving a tap and inject can cause a choroidal haemorrhage but it would be at the time of the tap and inject, because that's the time at which there's a sudden pressure lowering event. The space opens up and the blood vessels bleed, but this was excluded by the subsequent ultrasound.

CAMPBELL: Just assuming for the moment that a choroidal haemorrhage occurred, either at or some time after the procedure, that's because it was delayed. I take it was that what caused the vitreous haemorrhage to appear?

WITNESS UPPAL: No. As I think Dr Cohn's already outlined, a vitreous haemorrhage is from a separate compartment within the eye. And so the highly the most likely cause of a vitreous haemorrhage is the proliferative diabetic retinopathy. And just to finally clarify, if there was a later choroidal haemorrhage, it would then require a second pressure lowering event.

CAMPBELL: And Dr Morelli?

INTERPRETER: It is amply documented in the medical literature that a haemorrhagic - the choroidal haemorrhage can happen in a subsequent time. Yeah, it can happen from one to seven days after. And its name in the medical literature in English is delayed choroidal haemorrhage.

WITNESS UPPAL: Yes. I'm familiar with delayed choroidal haemorrhage, which is always in the context you look at those papers in the context of patients who have undergone pressure lowering surgery. So they've gone in for a cert B (sic) that lowers their pressure, and then seven, even sometimes longer days later, the pressure drops even further and they develop a delayed choroidal haemorrhage. That is not the context of this case.

CAMPBELL: Dr Uppal, I want to suggest to you, it's likely that--

INTERPRETER: This does happen in those type of procedures, but it is not the only cause of such an event.

CAMPBELL: -- a trauma which occurred during the tap procedure performed by Dr Andric materially contributed to the inability of the vision in his eye to return to an appropriate level; what do you say about that?

WITNESS UPPAL: But there's nothing in the - there's no evidence to connect the two. So when you say trauma, you have to specify the trauma. Are you saying it caused a retain [scil. retina] detachment; there is no evidence for this? Are you saying the trauma caused a choroidal haemorrhage; there is no evidence for this? Are you saying the trauma caused a profound drop in pressure; there is no evidence for this? So are you saying the trauma hit the optic nerve; there's nothing to suggest it hit the optic nerve? We're sort of running out of what the trauma is. You have to be a bit specific about what the trauma is. Just to finish, putting a needle through an eye is insufficient trauma to cause profound loss of vision unless it goes onto - called a secondary event, and I've outlined the three main events that would cause someone to lose their vision and there is no evidence for any of those events.

204. In my opinion, the evidence of Dr Uppal and Dr Cohn is to be preferred to that of Dr Morelli about these matters. It is supported by the observations and the opinion of Dr Fernandez. Dr Fernandez gave this evidence:

Q. … What do you understand or believe to be the link between the tap by Dr Andric and that second bleed on day 4, if anything?

A. No, I mean, I don't relate one thing to another, and if - if the bleed was associated with the tap, we would have seen the bleed at the moment. At that time. Not three days later.

205. My conclusion is that Dr Andric only attempted three taps. In doing so although pain was caused to Mr Busa, that pain was to be expected by the very nature of the procedure being conducted. Pain is, in any event, a subjective matter, and what is extremely painful for one person may only be moderately painful to another. Dr Andric did not otherwise cause trauma to the eye. The vitreous haemorrhage that occurred four days later occurred because of the bad state of the plaintiff’s eye from the retinopathy. Dr Andric carried out the procedure to a standard that was widely accepted in Australia by peer professional opinion as competent professional practice. There was no breach of the defendant’s duty of care in the carrying out of the procedure.

(b) Failed to adequately document the procedure

206. I discussed earlier the absence of notes by Dr Andric, but I noted also that other notes which might have been expected to be in the file were also missing (see at [65] and [66] above). There is insufficient evidence to decide even on the balance of probabilities that Dr Andric failed to make notes of what he did.

207. The plaintiff makes two points about the failure to document the procedure. He says, first, that any defence under s 5O must fail because it could not have been acceptable practice for Dr Andric not to have made notes of what he did. Secondly, the plaintiff accepted that the failure to document the procedure is only causative of psychological harm because it perpetuated his PTSD in that his discovery that there was no documentation of the procedure caused distrust of the SEH and, perhaps, doctors more generally.

208. The plaintiff relied on some evidence given by Dr Angelo Virgona for relating the loss of the notes to his PTSD. Dr Virgona concluded that there were multiple events that the plaintiff had experienced over the course of treatment for his eyes, and it was a combination of those traumatic incidents that led to the development of the PTSD. He accepted that when the plaintiff found out there were no notes that was of some distress to him. He then gave this evidence:

CAMPBELL: He believes that something happened on 1 April 2015 which caused the pain in his eye and ongoing loss of vision to his left eye?

WITNESS VIRGONA: Yes.

CAMPBELL: Is it those other features, that is finding out about the no notes, thinking that something happened at the time that caused injury to him, that's what's caused his PTSD?

WITNESS VIRGONA: I think there were other instances as well that I referred to in the record, and certainly there was distress with the hospital, with the doctor, with the lack of notes and the meetings that he had with the hospital, that he recounted. I'm just sort of going back to my report. But he also had instances of sudden blindness which had occurred which were extremely distressing for him subsequently when he had the right eye problems as well, so it became difficult, during the course of the examination, to tease out the relative contributions of these events, and so I formed the view that PTSD was likely to be the result of a combination of those instances.

209. I have already found that there was no breach of duty by the defendant in relation to the carrying out of the tap and inject procedure. No trauma was caused to the plaintiff’s eye, and the evidence (which has been partly dealt with and which I will discuss further) demonstrates that the loss of the plaintiff’s vision was not brought about by nor contributed to by anything relating to the tap and inject procedure on 1 April 2015.

210. Apart from the plaintiff’s submission that the defendant could not make out a s 5O defence in relation to any failure of Dr Andric to make notes of the tap and inject procedure, no submissions were addressed by either side to the question of whether a failure to make notes was itself a breach of duty. The plaintiff’s submission that s 5O could not be availed of in this respect, if there was a failure to make notes, should be accepted. However, that is a defence and it does not lead inevitably to a conclusion that a failure by a doctor to make notes of a procedure amounts to a breach of duty of care to the patient.

211. It is difficult to see how a doctor could owe a duty to a patient to make notes of what the doctor said or did. It may be a breach of the doctor’s professional responsibility although no evidence was led in that regard, and it may at some future time result in liability because the doctor did not treat or advise the patient appropriately as a result of not having a record of previous advice or treatment: see, for example, Elayoubi v Zipser. Similarly, a failure to make notes of advice or treatment may mean that, where there is a conflict of evidence, the patient’s account will be preferred over that of the doctor. Whilst that was a consideration in the present case, for the reasons I have given, I preferred Dr Andric’s evidence to that of the plaintiff and Ms Antonelli. Neither of the two situations posited above suggest that a failure to take notes in itself is a breach of the duty of care towards the patient.

212. As far as my own research went, I could not find any case which suggested that a failure of a doctor to take notes amounted to a breach of duty of care to a patient. There is discussion in Elayoubi at [72]-[75] on the particular facts of that case about the need for, and the practice of, making notes that “had medical significance for management of any future [in that case] pregnancy”. A matter of some significance in that case was that Basten JA said at [72]:

The overwhelming weight of the medical evidence was to the effect that such an encroachment should have been recorded, for the very good reason that it had medical significance for management of any future pregnancy.

213. In the present case, the plaintiff led no evidence from the experts with regard to any obligation or professional requirement for a doctor to make notes of a procedure. It is apparent from Elayoubi that such evidence could have been led.

214. I note also the observations of Vanstone J in Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31; [2010] SASCFC 21 in relation to a solicitor’s responsibility to make notes of instruction received and advice given:

[145] It is instructive to note some of the principles relating to the obligation upon solicitors to keep a written record of instructions received and advice given.

[146] In short, it is prudence, rather than principle, which dictates that a solicitor keep written records of dealings with clients. The purpose of keeping adequate notes is to aid memory. At common law it is merely advisable that a retainer be in writing: Butterworths, Halsbury’s Laws of Australia, Vol 16 (at 3 May 2010), [250–450]. Queensland is the only state in Australia where a written retainer is required: Halsbury’s Laws of Australia (ibid). In England it is the duty of a solicitor to obtain a written authority from his client before commencing a suit: Cordery A, Cordery’s law relating to solicitors (8th ed, Butterworths, 1988) at 50, citing Allen v Bone (1841) 4 Beav 493. In R v Pugh (2005) 158 A Crim R 302, Doyle CJ said that good practice required that a solicitor obtain written instructions for an application to change a plea: [23].

[147] If it is not required of a solicitor that he or she keep a written record of instructions received and advice given, then it seems to be unfair, as a general proposition, to draw inferences about those matters on the basis of the absence of written notations. I accept this could be done, where the file notes were plainly comprehensive in relation to all advice given and instructions received; but that is not this case. An examination of the solicitor’s file shows that on some occasions detailed notes of conversations were kept. However, on others it is plain that the written record of important interactions is scant or non-existent.

215. It may reasonably be inferred from what is said there that if it is not required of a solicitor to take notes then there can be no breach of duty simply by such an omission to do so. By analogy, if there is no requirement on a doctor to make notes, there can be no breach of duty in omitting to do so. As I have said, such a breach is not proved because a s 5O defence fails in that regard. All that a failure of a s 5O defence demonstrates is that the professional did not act in accordance with the standard set out in that section. It does not impose a liability. As I have said, the plaintiff led no evidence of a requirement to take notes as a result of any decision of a court nor of any governing body overseeing doctors.

216. In my opinion, Dr Andric’s failure to take notes (if that was what occurred) did not amount to a breach of his duty of care.

217. My conclusion is, therefore, that the defendant did not breach its duty of care to the plaintiff. Although that makes it unnecessary to consider the issue of causation, it is appropriate that I should do so, not only in case there is an appeal but also because a determination of causation has relevance for the liability of the defendant.

Did the plaintiff have endophthalmitis?

218. It is necessary to consider the question of whether the plaintiff presented with endophthalmitis on 1 April 2015 because the issue is bound up with the issue of causation of loss.

219. It is useful to set out what Dr Uppal says about endophthalmitis as follows:

Endophthalmitis is a potentially devastating and sight threatening condition caused by inflammation of the internal eye tissues. It is most commonly caused by infection. It is broadly categorised into exogenous (an infective organism originating from outside the body) and endogenous where the source of the infection lies elsewhere within the body and spreads to the eye.

Exogenous endophthalmitis can be further sub-classified as post operative (acute or chronic), post trauma, or associated with corneal ulceration. The commonest form is acute post-operative endophthalmitis due to the large volume IVT injections and surgeries performed globally. This form presents within 1-2 weeks of the intervention, usually 3-5 days after the surgery. The presentation is characterised by rapidly progressive pain, red eye, ocular discharge and deterioration in sight. Common examination findings include reduced acuity, lid swelling, conjunctiva! and corneal oedema, anterior chamber cells and fibrin, a hypopyon (the visible collection of a layer of inflammatory cells in the anterior chamber - this is a highly suggestive sign), vitreous chamber inflammatory cells and blunting of the retinal red reflex view on examination.

If at presentation there is any doubt between routine post-operative inflammation and endophthalmitis with severe haze or vitreous opacities, the possibility of an infection should be given priority given the potentially rapid and devastating consequences of this condition. The global literature places the risk between 0.2-0.03% with lowest figures for vitrectomy surgery (0.14 - 0.02%) as the vitreous gel may act as a culture medium for micro-organisms, which may partially explain why the rate of endophthalmitis is least after a vitrectomy. Despite numerous advances in surgical techniques, sterilization, smaller instrumentation and modern drugs endophthalmitis rates have remained largely unchanged. An inherent risk therefore remains whenever the eye is punctured, be it an IVT injection that lasts a few seconds or a complex retinal surgery lasting a few hours.

…

The management of endophthalmitis centres on prompt recognition and treatment. The mainstay of treatment involves the tap and inject procedure. Under local anaesthesia (topical) a 25-27 garage needle attached to a syringe is introduced into the vitreous cavity to remove, through slow aspiration, a sample of intraocular fluid (0.1-0.2ml). In an non-vitrectomised eye, if a vitreous sample cannot be removed due to formed solid vitreous, then an anterior chamber tap or a vitrectomy may be considered with the aspiration of aqueous through the anterior chamber to remove 0.1ml of fluid. The sample is sent for microbiological analysis to identify the causative organism and help guide any future antibiotic treatment. Following the tap, pre­prepared intravitreal antibiotics are injected (commonly Vancomycin 1.0 mg/0.1 ml, Ceftazidime 2.25 mg/0.1 ml) into the vitreous cavity.

If a theatre is available there may be a role for a vitrectomy however among retinal specialists this is controversial. The endophthalmitis vitrectomy study (EVS) Iooked at a the (sic) role of an immediate vitrectomy versus a tap and inject procedure. A vitrectomy procedure has the potential advantage of clearing from the vitreous cavity the infective load of the organism, removing pro-inflammatory toxins and mediators, obtaining a larger and more robust vitreous sample for analysis, clearing an media opacities and washing out the anterior chamber of the eye. The disadvantages of an immediate vitrectomy are that in performing a vitrectomy, the inflamed and even more delicate retina may be prone to damage from the procedure with a real risk of retinal detachment and or ocular haemorrhage. Vitrectomised eyes have a more rapid clearance of injected intravitreal antibiotics. Moreover unless access to a theatre is available on site, the added prolonged delay in arranging a vitrectomy may have serious deleterious consequences for an eye.

220. On the basis of the plaintiff’s surgery on 27 March 2015, and on his presenting history and symptoms, the presumptive diagnosis was endophthalmitis. The culture taken from what Dr Andric extracted did not come back positive, but that in itself was not proof that the plaintiff was not suffering from endophthalmitis on 1 April 2015.

221. In cross-examination Dr Andric was asked about whether there was evidence: of endophthalmitis and he gave this evidence:

Q. … There's no real evidence, I want to suggest to you, in the documents ‑ apart from pain ‑ of purulent endophthalmitis, is there?

A. There is.

Q. What is that?

A. He had cells, so first of all - I can't remember if Dr Odouard said one or two plus cells. We know that there's cells in the anterior chamber. You've got the history of the pain. It said mucus, and you've got the pain, as well. So - and the pressure going up, as well, so it's not normal to develop a new pain two, three days after surgery. You expect it to be sore for the first few days, and to eventually be getting better, but if any of those things start increasing or changing three, four, five, six days after surgery, that's what gives you the impression. And, you know, in teaching trainees, for example, even if the story of it came up, you would expect everyone's answer to be the number one possible diagnosis - differential diagnosis - is endophthalmitis, even without pus being in there. If you've got pus in there, it's already too late.

222. Dr Fernandez was asked if there was ever a confirmed diagnosis of endophthalmitis and the following evidence was given:

A. Of endophthalmitis? I mean, if you're asking me if - how do you say - if the culture came positive, no it didn't come positive. So it was not confirmed, like, by culture.

Q. Is there any other entries, whether by way of examination, scans, or anything that you've seen, which confirms a diagnosis of endophthalmitis?

A. Confirms. I mean, confirmatory would only be that the culture would have come positive. But we always act following the clinical suspicion. And it was a patient with a previous surgery several days before, with a sticky eye, with an increasing pain, decreased vision, hazy vitreous - or well, he didn't have vitreous - well hazy liquid on the back of the eye. So - and with cells in the anterior chamber. With significant cells in the anterior chamber. So unless proven contrary, that's endophthalmitis. That's clinical suspicion of endophthalmitis. And not acting as if it was an infection, considering the consequences of an untreated endophthalmitis, we need to treat those type of patient.

…

Q. Do you remember whether you were satisfied, back in April 2015, that the patient in fact did have endophthalmitis?

A. We treated him consequently, and afterwards he improved, and there was a clinical improvement. So sometimes, therapeutic test, it's confirmatory.

223. A little later he gave this evidence:

Q. …, I want to suggest to you, that even as at this date you hadn't satisfied yourself that the patient did in fact present with endophthalmitis on 1 April?

A. No, it's confirmed endophthalmitis. Basically, that's the thing. I mean, if it would have been "culture positive" there would be no question, but I mean, it was presumed endophthalmitis.

Q. Is it possible that Mr Busa did not in fact present with endophthalmitis on 1 April 2015?

A. If it's possible? It could have been possible. I mean, the clinical picture was endophthalmitis and the clinical suspicion was endophthalmitis, and we have to act following our clinical suspicion, because the consequences of not doing it are much worse than doing it, so we never - I mean, every time we have an endophthalmitis and we inject an endophthalmitis (sic), there's always the possibility that it's not an endophthalmitis, and there are many, many possibilities of being a culture-negative endophthalmitis, but that doesn't mean that's not an endophthalmitis, or that we don't have to do a tap and inject.

224. In answer to a question of what other differential diagnoses there were with the plaintiff’s clinical presentation, Dr Fernandez said:

A. With that clinical presentation, I mean, we would also consider inflammatory. Normally after a surgery we have, like, plastic sterile endophthalmitis, plastic endophthalmitis, and infective endophthalmitis. Probably inflammation. At that point, it would have been like or it was inflammatory or it was infectious. Inflammatory - sometimes we see, both with hypopyon and the uveitis, in very severe uveitis, we see a very similar picture as an infective endophthalmitis, but normally we don't have an event just before that's a surgery.

And so having a surgery and having, later on, that - the discharge - with discharge normally we think more about infective, but sometimes we might see a white eye; non inflamed, doesn't look like inflamed; maybe not much pain and cells and haziness and might look like endophthalmitis; but with the white eye, with the discharge, normally we are more inclined to think it's inflammatory. With surgery: red eye, discharge, pain. Surgery four days before? Normally we think about 100% an infective endophthalmitis.

225. He also gave this evidence:

Q. Was the evolution of his presentation and the associated clinical picture whilst you were caring for Mr Busa consistent with a resolving endophthalmitis?

A. Yes, it was. I mean, as we saw from day one, one of the - I mean, the most important signs that we follow, mainly the day after, it's pain. Pain, I mean, if day one after the tap and inject, pain improves that means that the evolution it's getting better. So sometimes we see the inflammation that might take a while to decrease, but I mean if we see an improvement in pain, normally we are really happy about it because that means that infection is getting under control. So, yeah, pain disappeared.

The vitreous - or the liquid that was filling the vitreous cavity was getting clearer, less so in the anterior chamber, until day - between day 3 and day 4 where he - I mean, I push him, we bled from what I read on the notes, and, again, it got a bit hazier but pain was not there. I mean, it was not like a - I mean, how do you say it in English now? "arapush"(as said) it was not like a - not a reinfection. It was not like - sorry, the words in English don't come. It was not that it was getting worse again. I mean, the infection. I mean, it was just another concomitant event that was the haemorrhage that was there, or the hazy view on the cells - what I mean.

226. The experts were asked in the conclave whether, on balance, the plaintiff likely presented on 1 April 2015 with endophthalmitis. Dr Morelli said:

The plaintiff absolutely did not present with endophthalmitis and I have already given you my reasons.

227. This was despite Dr Morelli saying in his report of 18 January 2022:

This damage is a consequence of acute post-surgical endophthalmitis, that is, the operated eye infection contracted by Mr. Busa during the vitrectomy on March 27, 2015.

Endophthalmitis was therefore a hospital infection, caused by germs that entered the eye, due to the poor hygiene of the surgeon, the instruments or the operating environment, specially the theatre. This is therefore a precise and unequivocal responsibility of the SSEH (sic) In this regard, I refer to what I have already written in the previous opinion on April 19, 2021 and to the international medical literature that I cited there.

I'm surprised that the SSEH (sic) continues to try to demonstrate the correctness of the action of the doctors who treated endophthalmitis after Mr. Busa's access to the emergency room; but they do not even try to justify the unjustifiable poor hygiene that caused the infection, which was the direct cause of everything that happened thereafter and ultimately of the certain anatomical loss of the patient's left eye.

228. That passage was followed by his conclusion, set out at [178] above, but which, for ease of reference, I reproduce here:

Finally, it should therefore be reiterated that the doctors of SSEH (sic) have a double responsibility in the current condition of Mr Busa: having caused the eye infection, post-surgical endophthalmitis, and then treated it negligently and contrary to international guidelines

229. The reasons that Dr Morelli refers to as having been earlier provided were that two ultrasounds, one conducted by Dr Odouard and one conducted by Dr Fernandez, did not find pathological echoes in the vitreous chamber or thickening of the choroid. He said there was no hypopyon, there was no hyphaemia in the anterior chamber, there was no corneal oedema and there was no Tyndall. He also pointed out that endophthalmitis after a vitrectomy is a condition that is very rare.

230. Dr Fernandez’s evidence was that there was Tyndall present. He said there were two or three plus cells. I accept Dr Fernandez’s evidence in that regard because he examined the plaintiff’s eye at the relevant time where Dr Morelli did not.

231. In the conclave Dr Uppal gave this evidence:

It is possible that it may not have been endophthalmitis, but we will never know, and it could equally have been an endophthalmitis. On the balance, all the clinical signs and symptoms would indicate an endophthalmitis, and once you arrive at that decision you have to follow that management path.

232. Dr Cohn said:

The balance of probabilities is that the presentation was an endophthalmitis.

233. The plaintiff submitted that evidence from statistics demonstrated that the chances of a patient acquiring endophthalmitis were extremely rare, with the figures suggesting 7 in 10,000 cases. That was said to be some evidence that it was unlikely the plaintiff had endophthalmitis. This argument seems to me to be misconceived.

234. Doctors do not diagnose on the basis of a statistical likelihood that someone has a disease or a condition. Diagnosis is ordinarily made on the basis of a history and an examination. A statistically unlikely condition might mean that the doctor enquires or examines or consults more scrupulously. All of the doctors except, ultimately, Dr Morelli said that the circumstances in which the plaintiff presented (PDR of longstanding, correction of tractional retinal detachment, a recent procedure to replace silicone oil with gas, increasing pain subsequently with sticky discharge) all strongly suggested endophthalmitis. When what was seen on the b-scan was added, the likelihood was increased. Subsequently, the recovery after injection of antibiotics pointed to a resolving endophthalmitis. Certainly, only a positive culture could absolutely confirm the result, but a negative culture was not determinative in the sense that it disproved it.

235. I do not know what level of probability a doctor employs to decided amongst differential diagnoses. No doubt, risk is a consideration. The Court, on the other hand, is only obliged to determine on the balance of probabilities what the plaintiff is likely to have been suffering from. There were only two realistic diagnoses under consideration here; endophthalmitis, or inflammation not from an organism. Until Dr Morelli knew of what the b-scans showed or did not show, all of the doctors (including him) were in no doubt that endophthalmitis was the appropriate diagnosis. Dr Morelli’s explanation for his change of mind was unconvincing in my opinion. It appeared partly to be based on the statistical unlikelihood of endophthalmitis but also because of the b-scans. I would not reject the statistics without any consideration because the condition rarely occurs. I also have regard to the negative pathology result but it is clear from the evidence of the experts and from Dr Fernandez that a diagnosis can be made on a clinical basis even in the face of a negative pathology result and the statistics.

236. Accordingly, I have no difficulty in finding that when the plaintiff presented to the SEH on 1 April 2015 he was suffering from endophthalmitis.

237. Ultimately, a determination is only relevant in relation to causation of damage because there was no real dispute that with a patient presenting in the plaintiff’s circumstances following a vitrectomy a few days earlier and with the symptoms he described on 1 April 2015, the treatment he was given in the form of the tap and inject was the correct treatment regardless of whether he actually was suffering from endophthalmitis.

Causation of loss

239. Causation of loss is governed by s 5D of the Civil Liability Act (CLA). Section 5D(1) provides:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

240. In Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Kiefel J said:

[109] Damage is an essential ingredient in an action for negligence; it is the gist of the action. The action developed largely from the old form of action on the case, in which it was the rule that proof of damage was essential to a plaintiff’s case. In Brunsden v Humphrey Bowen LJ pointed out that in certain classes of case the mere violation of a legal right imports damage, but that principle was “not as a rule applicable to actions for negligence: which are not brought to establish a bare right, but to recover compensation for substantial injury.” Generally speaking “there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case.” Negligence in the abstract will not suffice.

[110] An action in negligence, said Bowen LJ, “is based upon the union of the negligence and the injuries caused thereby, which in such an instance will as a rule involve and have been accompanied by specific damage.” Nevertheless the action on the case has itself been described as sufficiently flexible to enable judges to extend it to cover situations where damage was suffered in circumstances which called for a remedy. The Court of Appeal in this case observed that the common law has adapted to recognise different kinds of harm. But nowhere is it suggested that the requirement for damage itself can be dispensed with. Liability based upon breach of duty of care without proven loss or harm will not suffice.

[111] The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

[112] The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test. The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices.

(citations omitted)

241. In similar vein, Emmet AJA said in Carangelo v State of New South Wales [2016] NSWCA 126 at [68] (Macfarlan and Gleeson JJA agreeing):

An action in negligence has been described as being based upon the union of negligence and the injuries caused thereby, which will as a rule, involve and have been accompanied by specific damages. An action in negligence is sufficiently flexible to enable courts to extend it to cover situations where damage was suffered in circumstances that call for a remedy. However, the requirement for damage cannot be dispensed with. Breach of duty of care without proven loss or harm will not suffice. The common law requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. In that context “more probable” means no more than that, upon the balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. It does not require certainty.

(a) As a result of the events of 1 April 2015

242. The plaintiff claims that as a result of the breaches by the defendant he suffered injuries to his left eye which ultimately led to blindness in that eye, and he suffered psychiatric harm. He also claims to suffer from ongoing pain in the eye. I have found that there was no breach of duty in relation to the carrying out of the tap and inject procedure. Causation of loss does not, therefore arise from that asserted breach. However, it is worth noting the evidence about what did bring about, or what was likely to have brought about, first, the injuries to the eye including the pain and, secondly, the mental harm to the plaintiff.

(1) Physical injuries

243. Question 2 in the conclave asked the experts:

On 1 April 2015, Mr Busa presented to the Sydney Eye Hospital and was treated for suspected endophthalmitis. Taking into account his clinical history (including cataract, diabetic macular oedema, prolific (sic) diabetic retinopathy, tractional retinal detachment and vitreous haemorrhage, vitrectomy and detached retinal repair with silicon oil tamponade, right rubeosis) prior to the attempted tap and inject performed on 1 April 2015, please comment on the likely vision potential and expected prognosis for his left eye?

244. Dr Morelli first answered on the basis that the plaintiff was not suffering from endophthalmitis and said that the outcome would have been that the plaintiff’s visual acuity could have been recuperated. He said that even if the plaintiff did suffer from endophthalmitis, previous visual acuity could have been totally recoverable if he had undergone early vitrectomy.

245. Dr Uppal said:

Even in a perfectly healthy eye, let alone one that had a number of preexisting pathologies including a retinal detachment which is extremely serious, the visual prognosis would be expected to be poor. … The prognosis would always be considered poor if endophthalmitis is the diagnosis.

246. In the concurrent evidence he said this:

BRADLEY: … Dr Uppal, in your report you've set out the plaintiff's diabetic eye condition and you're familiar with same. In addition, I note that when the patient presented on 1 April, Dr Odouard observed rubeosis in the left eye. In a patient with diabetic maculopathy, rubeosis, severe prolific (sic) diabetic retinopathy, and a tractional retinal detachment, even if the patient didn't have endophthalmitis on 1 April 2015, should his Honour understand the visual prognosis of this patient's left eye was poor.

WITNESS UPPAL: Yes, the prognosis is poor. This is a very sick eye showing all the complications of diabetic eye disease, maculopathy, bleeding, tractional detachments. These are the signs of someone who's a poorly controlled diabetic, probably poorly controlled blood pressure and cholesterol. These are very sick eyes that show all these signs.

…

BRADLEY: Thank you. Dr Uppal, you heard what Dr Morelli said. My question was in relation to a visual prognosis as at 1 April 2015, prior to the tap and inject. Does it remain your opinion that the visual prognosis will be expected to be poor given the clinical history of this left eye?

WITNESS UPPAL: Yes. I would expect it to be poor. Any eye that's had to undergo a tractional detachment repair is someone who is presenting with very advanced severe complications of diabetic eye disease.

…

CAMPBELL: Dr Uppal, it's your opinion that the vision problems that the plaintiff had after 1 April 2015 were caused by the toxic effects of endophthalmitis; is that right?

WITNESS UPPAL: That's what the clinical notes and picture indicate.

247. Dr Cohn said in the conclave:

We would be very guarded, given that there was diabetic retinopathy and the background, the leakages and proliferation, very guarded. One cannot predict whether vision will land but the counselling preoperatively is also, in these circumstances, gloomy and with good reason. We would not have expected a high chance of good vision with this constellation of problems.

248. During the concurrent evidence he said:

BRADLEY: Dr Cohn, do you have any - what's your view on visual prognosis prior to the tap and inject on 1 April 2015?

WITNESS COHN: The vision was recorded between the vitrectomy and silicone oil insertion and the tap and inject and at no time was it better than 6/90. Silicone oil would not cause diminution of vision. I would from that assume that the macula was not at all healthy.

249. The experts were also asked to comment on whether the management of the plaintiff’s suspected endophthalmitis on 1 April 2015 was more likely than not to have caused his later pain and loss of vision in his left eye. It was to that question that Dr Morelli said that there was “obviously” damage and it was damage of the optic nerve leading to vision loss. I have already made reference to this.

250. Dr Uppal said that the question was a difficult one to answer. He said if a patient has endophthalmitis and there is an organism in their eye, the prognosis for vision is usually very poor. In relation to the haemorrhage, he said that when you put a needle in an eye there is always a risk of causing a vitreous haemorrhage. That is a haemorrhage into the central cavity of the eye. It is more likely in a diabetic patient. If it is simply a vitreous haemorrhage, the haemorrhage will eventually clear and the vision will start to recover but the progress can be more protracted. If the injection caused a choroidal haemorrhage, that is far more serious and can cause long-term damage to the vision.

251. He said that pain is not a long-term feature of a recovered endophthalmitis. Loss of vision, however, is most certainly. He said that the plaintiff demonstrated several additional confounding factors; he was a poorly controlled diabetic with a complex of pressure issues. His pressure issues alone would certainly make an eye very painful.

252. In the concurrent evidence Dr Uppal said this:

BRADLEY: … I want you to focus just on Dr Andric's actions in administering a tap. Is there, in your view, with that clinical history, any evidence of trauma caused by Dr Andric in the tap attempt on 1 April 2015 that could cause his much later deterioration in vision and then later increased pain?

WITNESS UPPAL: No.

BRADLEY: What is the likely reason why he later suffered loss of vision and increased pain?

WITNESS UPPAL: The loss of vision is highly likely to be due to a vitreous haemorrhage secondary to proliferative diabetic retinopathy. This is in a patient with a long history of poorly controlled diabetes and advanced diabetic eye disease. Anyone with rubeotic glaucoma, one of the features of this glaucoma is raised pressures and a painful eye.

253. Dr Cohn agreed with Dr Uppal in that regard. He also said that it was highly improbable that the events of that day were still causing pain.

254. In his statement Dr Fernandez said that in March 2015 after he removed the silicone oil and exchanged it for air, the prognosis for the vision acuity of the plaintiff’s left eye on discharge was very limited given the fact that he had a severely ischaemic retina and suffered retinal detachment requiring silicone oil. In the conclave the experts were asked to say whether it was likely that the ultimate condition of Mr Busa’s left eye would have eventuated absent the trauma (if any) sustained during the tap and inject procedure. Dr Uppal thought it was pure conjecture and they would never know but he made reference to the statement of Dr Fernandez. He commented that the plaintiff’s left eye was already a very sick eye prior to 1 April 2015. He went on to say:

The eye may have recovered better vision but the records prior to this event and the progress of the fellow eye from ongoing diabetic eye complications strongly indicate ongoing poor diabetic control and a very poor visual prognosis for the left eye.

255. Dr Cohn said that the rubeotic glaucoma would have occurred irrespective, and the cause of the right eye was indicative. He said on balance of probabilities, the left vision could not have improved and would likely have deteriorated further. He said there were several indications of unsatisfactory blood sugar control and referred to a note of Professor Gilles that the plaintiff’s blood pressure was out of control. He said that also impacted retinopathy.

256. What the plaintiff experienced in relation to his left eye subsequent to 1 April 2015 is also relevant from a causation point of view. That history is set out at [72] to [104] above. Two things stand out. First, there was considerable improvement from time to time both in terms of pain and vision. By 5 and 6 April the plaintiff had no pain and his vision had improved to counting fingers at 50 centimeters. By 23 April the vision was 6/90, by 28 April it was 6/60 and by 4 and 7 May it was 6/36. Secondly, the problem that the plaintiff came to experience from at least June 2015 was increased intraocular pressure. That appears to be the cause of the increasing pain the plaintiff experienced.

257. While there was evidence that the tap and inject procedure could have raised the intraocular pressure in the days following that procedure, Dr Uppal gave evidence in the conclave that that condition was transient. There was no evidence that there was any link between that increasing intraocular pressure from June 2015 and what occurred on 1 April 2015. Indeed, Dr Uppal’s evidence was that the pressure issues can be related to complications of a poorly controlled diabetic.

258. Dr Morelli’s assertions that trauma on 1 April 2015 caused great suffering of the bulbar structure and the optic nerve are contrary to what was observed by Dr Fernandez on 1 April 2015. Dr Morelli attributes the subsequent increase in intraocular pressure to the damage to the bulbar structure and the optic nerve. His opinion in that regard finds no support from Drs Uppal and Cohn whose evidence I accept.

259. I conclude from all of this evidence that by reason of the extent of the problems with the plaintiff's eyes, and particularly the left eye, and the fact that he acquired endophthalmitis prior to 1 April 2015, the prognosis for his left eye was very poor. The likelihood is that those matters eventually led to the position where he lost the sight in the left eye even though there was no breach of duty on 1 April 2015. The damage the plaintiff suffered in terms of vision in his left eye would have occurred in any event. Similarly, the pain is related to increased intraocular pressure which was not related to what occurred on 1 April 2015. In that way, even if breach was established, the plaintiff would have failed on causation in relation to his physical injuries.

(2) Mental harm

260. Both Dr Peter Klug, the psychiatrist retained on behalf of the plaintiff, and Dr Virgona, the psychiatrist retained on behalf of the defendant, agreed that the plaintiff should be diagnosed with PTSD and Persistent Depressive Disorder (as Dr Virgona described it) or Chronic Major Depressive Order (as Dr Klug described it).

261. Dr Klug’s conclusion was explained in this way:

A post-traumatic stress disorder is a severe trauma-related illness in response to a traumatic stressor or stressors. Clearly the experiences Mr. Busa had with respect to the relevant procedures/operative interventions at the Sydney Eye Hospital qualify for the designation of a traumatic stressor.

A major depressive disorder is a major mood disturbance which bears a high statistical relationship to increased levels of morbidity and mortality by suicide. It is of note that Mr. Busa has experienced suicidal ideation and at times intent. It is common for sufferers of chronic pain to develop this condition and is also a common comorbid diagnosis with a chronic post-traumatic stress disorder. In my opinion these conditions have been caused by his traumatic experience at the Sydney Eye Hospital and its consequences, which persist to date.

262. Dr Virgona said:

In conclusion, the plaintiff presents with symptoms of Persistent Depressive Disorder and PTSD. By his account today, the symptoms of PTSD relate to various specific distressing experiences at the hospital, detailed above. The depression appears more related to the consequences on his life of his loss of vision, i.e. he was likely to suffer a depressive disorder with vision loss and its consequences, whatever the cause.

263. Dr Klug listed various symptoms the plaintiff suffered from including the following:

• an ongoing and overt preoccupation with the traumatic events at the Sydney Eye Hospital but in particular the severe pain he experienced and the sudden loss of vision – he said he relives this every day

• loss of trust in others, especially the medical profession – “…I feel I’m just a number – I’ve lost faith in doctors”

• intense flashback experiences to the relevant procedure, particularly the pain “…and the blood pouring out of my eye – onto my face and my T-shirt”

264. Significantly, the plaintiff made no complaint to Dr Klug about the absence of notes by Dr Andric or any other notes.

265. On the other hand, he said this to Dr Virgona about that matter:

He stated that he went back to the Eye Hospital and complained. He applied for all his records and went through them. He stated that there was no mention of what happened to the left eye and no mention of the doctor's name or any history of it. He stated that they also had done 1,192 lasers on his eye without his permission. He stated that he was in shock when he read this. He organised a meeting. He stated that the first one was he and his wife with Dr Playfair and Kate Stewart, the complaint nurse. Dr Playfair said they went through the notes twice and couldn't find evidence of what had happened but they would do an investigation. At a second meeting with his sister, they said they found out that the doctor who did the procedure that afternoon said he forgot to write in the notes. They then had a third meeting with the CEO who said they'd already notified the insurance company and it would be taken care of. He stated that he saw a solicitor because he doesn't want anyone else to go through this.

266. Dr Virgona recorded this:

He gets very disturbed about the medical notes having been missing and having been lied to, "not only once."

It is not clear in what way the plaintiff had been lied to.

267. In his oral evidence Dr Virgona said this about the cause or causes of his PTSD:

CAMPBELL: The trigger for the PTSD was that procedure; correct?

WITNESS VIRGONA: I concluded that there were multiple events that Mr Busa had experienced over the course of the treatment with his eyes, plural, and it was he was distressed during the course of the examination on several occasions, talking about different events, and so I concluded that it was a combination of traumatic incidents occurring in the treatment of his eyes that led to the development of the PTSD.

268. In relation to the absence of the notes of the procedure, he gave this evidence:

CAMPBELL: It was as a result of those investigations that he found out, amongst other things, that there were no notes taken of the procedure on 1 April?

WITNESS VIRGONA: Yes.

CAMPBELL: You knew that, yes. That was of some distress to him when he found that out?

WITNESS VIRGONA: Yes.

CAMPBELL: He believes that something happened on 1 April 2015 which caused the pain in his eye and ongoing loss of vision to his left eye?

WITNESS VIRGONA: Yes.

CAMPBELL: Is it those other features, that is finding out about the no notes, thinking that something happened at the time that caused injury to him, that's what's caused his PTSD?

WITNESS VIRGONA: I think there were other instances as well that I referred to in the record, and certainly there was distress with the hospital, with the doctor, with the lack of notes and the meetings that he had with the hospital, that he recounted. I'm just sort of going back to my report. But he also had instances of sudden blindness which had occurred which were extremely distressing for him subsequently when he had the right eye problems as well, so it became difficult, during the course of the examination, to tease out the relative contributions of these events, and so I formed the view that PTSD was likely to be the result of a combination of those instances.

269. Dr Klug was then asked about the matter and gave this evidence:

CAMPBELL: Dr Klug, do you have any comments in respect to the diagnosis, which I think you also have of PTSD; correct, and it's (sic) cause, having regard to what was just discussed with Dr Virgona?

WITNESS KLUG: On the whole I agree but I would just elaborate in the sense that I think the seminal event, the seminal traumatic event, was the 1 April 15 - is that the correct date - when he suddenly felt excruciating pain and was bleeding and lost vision in that eye. I think that that was the traumatic event that gave rise to his PTSD. I think subsequent events, which Dr Virgona has mentioned, have really been exacerbating and perpetuating events, but that the prime traumatic experience was the one on 1 April 15.

270. The psychiatrists made clear that what was relevant was the plaintiff’s perception of what happened to him. Dr Klug gave this evidence:

HIS HONOUR: Dr Klug, can I just ask this, is the focus here on the patient's perception of what happened, rather than the objectivity of it? In other words, if he perceives something terrible has happened to him, even if by objective standards it isn't terrible, PTSD could still result from that; could it not?

WITNESS KLUG: Yes, your Honour.

HIS HONOUR: And it wouldn't matter, from assessment by you, whether the event was in fact a terrible event that would be likely to produce PTSD. If he perceived it like that, that would be sufficient?

WITNESS VIRGONA: Yes, your Honour.

HIS HONOUR: Do you agree?

WITNESS KLUG: I agree; yep.

(The answer recorded as having been given by Dr Virgona was in fact given by Dr Klug and the subsequent answer attributed to Dr Klug was in fact given by Dr Virgona.)

271. Although Dr Susino’s note of 13 January 2017 ([103] above) is the first contemporaneous note of a complaint concerning psychological symptoms that are said to be related to the plaintiff’s treatment (the note of Dr Wong of 5 July 2016 at [100] above refers to the plaintiff being depressed about his vision not his treatment), both psychiatrists considered that what the plaintiff experienced on 1 April 2015 was significant for the development of his PTSD.

272. I did not find the psychiatric evidence very satisfactory in relation to the diagnosis of PTSD. The psychiatrists gave this evidence about the diagnosis of PTSD:

HIS HONOUR: Dr Virgona and Dr Klug, can I just ask you, I thought that for PTSD to be diagnosed there needed at least to be one specific traumatic type of event; is that right? Or can PTSD arise from just an accumulation of bad things?

WITNESS VIRGONA: There has to be an event which is threat to life or health, so in his case my argument was that there is a series of events that impacted on his health that were sufficient for the criterion A for the PTSD diagnosis, yeah.

HIS HONOUR: So there would have to be a series of events, each of which would be sufficient to bring about PTSD?

WITNESS VIRGONA: Sudden loss of vision in both eyes would be sufficient to bring about PTSD. I mean, people would find that shocking, yes, as an example.

HIS HONOUR: Did you want to say anything about that, Dr Klug?

WITNESS KLUG: I think there has to be a specific traumatic event, from which the trauma related condition starts, and then there can be exacerbating and perpetuating events subsequently, which can be both internal and external, so in his case, for instance, continued problems with his eyesight or recurrent pain would be an internal stressor or an external stressor; finding out about the loss of - that there was file note at the time or other adverse events with the eye hospital, but from my point of view, it dates - his trauma related condition dates from 1 April 15.

273. As noted earlier, in his report Dr Virgona said that the symptoms of PTSD relate to “various specific distressing experiences at the hospital”, which included the events of 1 April 2015, his answer above was that there had to be an event which is threat to life or health, and he gives the example of a sudden loss of vision in both the plaintiff’s eyes, but seems to say in this case that there was a series of events that ultimately led to the PTSD. Dr Klug said there had to be a specific traumatic event and he points to the plaintiff’s experience on 1 April 2015 as that event. Dr Klug’s opinion made more sense to me, having regard to what he said at [269] above that the subsequent events “have really been exacerbating and perpetuating events”.

274. The further difficulty is, as noted earlier, that the first notation of the plaintiff being upset because of his visual problems is in Dr Wong’s note of 5 July 2016 and thereafter in Dr Susino’s note of 18 November 2016, as result of problems with vision in his right eye, and the first note relating his mood and his being upset to his treatment at the SEH is on 13 January 2017. None of the contemporaneous notes at the SEH or at his GP’s practice suggested mood, psychological or mental health issues prior to those occasions. It was not explored with the psychiatrists in their concurrent evidence why they believed the plaintiff had suffered PTSD in the absence of any contemporaneous record noting psychological or psychiatric matters until 2016 or early 2017. Nor was it explored why his mental health problems were related to his treatment by the SEH, not only because of the time lapse, but also because there was no linking of the two until early 2017, almost two years after the impugned treatment.

275. Nevertheless, I must accept the evidence of the psychiatrists, because there is no evidence to the contrary, that the plaintiff suffers from PTSD and that it is related to his treatment, or at least his beliefs about that treatment, on 1 April 2015. However, in the light of my earlier findings of no breach of duty, the psychiatric conditions from which the plaintiff suffers, whilst they may have been related to his treatment on 1 April 2015, cannot mean that the defendant is legally liable for those conditions.

(b) Absence of notes

276. I set out earlier some of the symptoms that Dr Klug listed from having been told them by the plaintiff. None of those matters mentioned concern, upset or distress from having ascertained at some point that no notes had been made of the procedure. Further, the plaintiff gave no evidence himself of the matters that caused him concern, upset or distress apart from the events of 1 April 2015. The highest that his evidence went in that regard was that he said what he had told the psychiatrists was true. In that regard, it may be noted that it was not all true because he told Dr Klug that there was no past psychiatric history although he had made a claim for mental harm arising out of his mother’s death and had been on antidepressants for a period of time.

277. He did mention, as I have noted earlier, to Dr Virgona that at a second meeting with representatives from the defendant, the plaintiff found out “that the doctor who did the procedure that afternoon said he forgot to write in the notes”. He also told Dr Virgona that he “gets very disturbed about the medical notes having been missing”. As I have also noted earlier, it was Dr Virgona’s opinion that the plaintiff’s symptoms of PTSD related to various specific distressing experiences, one of which it may be accepted, was the loss of the notes.

278. In Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 the majority judgment said:

[18] The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.

…

[26] Section 5D(2) makes special provision for cases in which factual causation cannot be established on a "but for" analysis. The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant's negligence cannot be established as a necessary condition of the occurrence of the harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this Court. Negligent conduct that materially contributes to the plaintiff's harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed.

279. In my opinion, the absence of the notes cannot be held to be a necessary condition of the occurrence of the harm. If the plaintiff had not believed he suffered injury from the procedure on 1 April 2015, the loss of the notes of that procedure would not have been important. Accepting Dr Klug’s assessment of the cause of the plaintiff’s PTSD, it was the plaintiff’s belief about what happened on that day. At best, the discovery about the loss of the notes merely exacerbated that injury in a somewhat minor way. The decline in vision of his left eye to blindness and the issues with his right eye were of much greater significance in terms of exacerbation.

280. However, in circumstances where Dr Virgona at least thinks that it contributed to the symptoms of PTSD, consideration must then be given to s 5D(2). The evidence is not sufficient to show that the absence of notes materially contributed to the plaintiff's harm but, even if it did, if the only negligence of the defendant was the failure to take notes or the loss of them, and not the carrying out of the procedure on 1 April 2015, this would not constitute an exceptional case such that the absence of the notes would establish factual causation.

281. The judgment in Strong endorsed what Allsop P had said in Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 at [11]:

The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworths Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of “material contribution” and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative “but for” answer was given, so much is clear. However, the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred. The facts of Henville v Walker [2001] HCA 52; 206 CLR 459 provide another example. However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the ”but for” test) such as in Bonnington Castings Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principle”.

282. The loss of the notes of the tap and inject procedure (if they were made) or the failure of Dr Andric to make those notes was not a necessary condition of the occurrence of the harm. The absence of those notes (to use a neutral term) cannot be divorced from the determination that there was no breach in the carrying out of the procedure by Dr Andric or the defendant generally. The perpetuation of the plaintiff’s PTSD, as the plaintiff’s counsel describes it, was not contributed to by the loss of the notes but by the plaintiff’s mistaken belief about the wrongdoing of Dr Andric and the defendant.

283. Although the plaintiff undoubtedly suffers from PTSD, that condition has arisen, not as a result of acts and omissions on the part of the defendant, but from the problems the plaintiff has had with both of his eyes and his belief, mistaken as it is, about failures of the defendant.

284. The absence of the notes is not causative of any loss.

Damages

285. Judges at first instance are encouraged, where they find judgment for a defendant, to embark, nevertheless, on a hypothetical calculation of damages, in the event that they are found to be in error on liability. In the present case, that involves making a number of assumptions in relation to liability. I must assume that in one way or another, the tap and inject procedure was not carried out properly. I assume also that that ultimately led to the plaintiff going blind in the left eye although account must be taken of the evidence that there was the likelihood of at least diminished vision in that eye in any event from the PDR and the possibility that, notwithstanding what occurred at the tap and inject procedure, he might have gone blind in that eye.

286. I also assume that in relation to the absence of the notes, s 5D of the Civil Liability Act is satisfied in relation to the mental health issues suffered by the plaintiff from the absence of the notes. However, there can be no doubt that the plaintiff’s psychiatric problems were only exacerbated by the absence of the notes and that, more significantly, his loss of vision in the left eye, and the problems with his right eye, in respect of which there is no liability on the defendant’s part, materially contributed to those mental health issues.

(a) Non-economic loss

287. The plaintiff claims non-economic loss at 50% of the most extreme case, being $381,000.00. That is put on the basis of what is said to be the significant nature and extent of the plaintiff's physical and psychological injuries.

288. The defendant submitted that the plaintiff would be entitled to be assessed at between 0% and 27% of the most extreme case. This was for two reasons. First, the plaintiff’s life was significantly compromised before 1 April 2015. He had poorly controlled diabetes, he underwent a cervical spine fusion in 2001 with subsequent degenerative disease, lower back pain from 2003, depression, neuropathic pain, diabetic neuropathy, hypertension together with all his eye problems. Secondly, his eye problems were worsening unrelated to any breach of duty on the defendant’s part.

289. There can be no doubt that the plaintiff had significant left eye disease, and right eye disease for that matter as a result of his diabetic condition. If, as I have found, the plaintiff had endophthalmitis when he presented on 1 April 2015, the expert opinion was that the deteriorating condition of his left eye would be partly related to that. If, contrary to what I found, the plaintiff did not have endophthalmitis, the history of his left eye points to a significant deterioration over time even absent any trauma caused on 1 April 2015 or even from the endophthalmitis. Dr Uppal said:

This was already a very sick eye prior to 1 April 2015. The eye may have recovered better vision [absent any trauma caused on 1 April 2015] but the records prior to this event and the progress of the fellow eye from ongoing diabetic eye complications strongly indicate ongoing poor diabetic control and a very poor visual prognosis for the left eye.

290. Dr Cohn said:

The rubeotic glaucoma would have occurred irrespective. The course of the right eye is indicative. … On balance of probabilities, the left vision could not have improved and would likely have deteriorated further. There are several indications of unsatisfactory blood sugar control …, Professor Gilles notes that blood pressure was out of control. This also impacts retinopathy.

291. It also clear from the evidence of the psychiatrists that the PTSD was brought about by a combination of factors which not only included any trauma on 1 April 2015, ongoing pain and deteriorating vision and the absence of notes, but also from the ultimate outcome with his left eye which more likely than not was going to happen in any event, and the ongoing problems with the right eye including the period of time during which the plaintiff was blind in both eyes. Further, Dr Virgona related the plaintiff’s depressive disorder to the consequences on his life of his loss of vision and said he was likely to suffer a depressive disorder with vision loss and its consequences whatever the cause.

292. In all the circumstances, I would assess the plaintiff at 30% of the most extreme case entitling him to damages for non-economic loss of $175,000.00

(b) Past out of pocket expenses

293. The plaintiff claims invoices from Dr Andrew Chang from 2017 to January 2025 totalling $12,969.75. He claims past benefits paid by Medicare of $20,786.85. He claims travel to Italy and London to see Dr Morelli of $6,641.08.

294. None of these amounts is agreed and no primary documents have been provided. Given that the plaintiff had a serious pre-existing condition in both eyes for which he has been and is being treated, the plaintiff fails to prove what expenses were incurred as a result of any negligence committed on 1 April 2015. I would be prepared to allow the sum of $5,000.00 for past treatment arising out of any negligence.

295. I do not consider it was reasonable of the plaintiff to engage a surgeon in Italy and to claim the cost of travel as a result. It is one thing to use an expert medico-legal witness and another thing to choose to engage a treating doctor in a foreign country with concomitant travel expenses. I would disallow the claims for travel.

(c) Future out of pocket expenses

296. The plaintiff claims a buffer of $50,000.00 for ongoing physical and psychological therapies.

297. In terms of future psychiatric and related care, Dr Klug provided for psychiatric and psychological sessions for an 18 month’ period and for antidepressants. The psychiatric care totalled $5,625.00, the psychologist totalled $4,500.00 and antidepressants for two years were estimated at $1,800.00. The total of these amounts is $11,925.00.

298. Dr Virgona provided a more modest assessment of psychiatric care for six months at a cost of $1,800.00, 15 sessions of psychological therapy totalling $4,050.00 and antidepressants for two years totalling $720.00. The total of these amounts is $6,570.00.

299. There can be no doubt from the evidence of the psychiatrists that any breach of duty by the defendant was not the only cause of the plaintiff’s mental health conditions.

300. I have taken the midway point between the two totals by the psychiatrists and applied a 40% discount for matters not related to any breach of duty on the defendant’s part. I would allow an amount of $4,700.00 for future psychiatric and psychological care, including medication.

301. The plaintiff did not lead evidence of the cost of future care for his eye problems. The figure of $50,000.00 put forward by the plaintiff for future out of pocket expenses seems to me to be a figure that has been pulled out of the air. In the absence of any evidence, I would not allow any further amount. What is also clear is that ongoing costs in relation to his eyes would have been incurred despite any breach of duty on the part of the defendant.

(d) Economic loss

302. Despite all of the evidence led in relation to the plaintiff’s ability to continue driving trucks, and from what date he was able to do that, the plaintiff ultimately accepted that it would have been unlikely that he would have returned to heavy vehicle driving regardless of what happened on 1 April 2015. The claim for economic loss is, therefore, based on his contract at Linfox where he was to earn a net figure of $1,322.00 per week.

303. The plaintiff, therefore, claimed past economic loss for 471 weeks from 1 July 2015 to 14 February 2025 totalling $473,276.00. He then claimed future economic loss until the plaintiff turned 70 using a multiplier of 309.4 and deducting 15% for contingencies, totalling $347,672.78.

304. The evidence concerning the plaintiff’s earning capacity was left in a very unsatisfactory state. It is true that the plaintiff gave evidence that he had to cease working at Linfox because he was not able to carry out properly the tasks he was required to do because of his visual problems. However, the evidence suggested that, regardless of any breach of duty on 1 April 2015, and in the circumstances where the plaintiff contracted endophthalmitis following the surgery on 27 March 2015 there was always going to be serious deterioration of the vision in his left eye. The evidence also demonstrated that there had been a number of problems, some serious, in relation to the right eye and there had been a deterioration in that regard also.

305. Further, the claim by the plaintiff makes no allowance for the fact that, in my opinion, he had some residual earning capacity even despite the issues with his left eye. As he accepted, he was able to concentrate in the witness box and read documents that were put before him on a number of occasions. He gave this evidence:

Q. Finally, Mr Busa, you've sat there since 10.30 this morning and you have answered lots of questions. I've taken you to many documents some with very small print and you have read them. You would agree.

A. Yes.

Q. And you have been able to concentrate apart from one moment where you were distressed throughout the course of the day. You would agree.

A. Yes.

Q. And you were able to read those documents without assistance from anyone else.

A. Well, I can read it, yes. But like I said, sometimes you're telling me where I'm looking and I find it sometimes hard to see little print like that, but I manage to read them, yes.

306. In my opinion, the plaintiff should be entitled to no more than 50% of the claim for past economic loss on the basis that he had some residual earning capacity and on the basis that, regardless of any breach by the defendant, he would have had such visual difficulties that at some point he would not be able to work.

307. As far as future economic loss is concerned, s 13 of the CLA provides:

13 Future economic loss - claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

308. In my opinion, the plaintiff’s most likely future circumstances are that he would have been able to work for a period of time, at least up to the date of trial and perhaps for a 12 month’ period beyond that, based on his ability to read documents as I have noted, but thereafter problems from both his eyes, unrelated to any breach of duty, would have prevented him from working.

309. The evidence was left in such an unsatisfactory state about these matters that the best I can do is to indicate that a buffer for future economic loss should be provided. Having regard to the matters I have referred to, I would have provided a buffer of $200,000.00.

310. The plaintiff would be entitled to superannuation of 11% on the past economic loss and in respect of the buffer for the future.

(e) Care

311. The plaintiff claims past care costs on the basis of 18 hours per week for 516 weeks at $34.00 per hour. Future care is claimed for 14 hours per week using a multiplier of 753.6 (presumably assessed until the plaintiff turns 81) less 15% for contingencies at the rate of $65.00 per hour, totalling $582,909.00.

312. The plaintiff did not give evidence of assistance he needed nor the care he received. His wife, Alona Danilishyna gave some evidence of it in an affidavit. Ms Danilishyna was not cross-examined, but counsel for the defendant submitted that “it’s a matter of weight on various issues”.

313. Ms Danilishyna gave evidence that the plaintiff received some assistance from his family as they would bring food to the plaintiff’s home and provide some driving assistance when they were available. Ms Danilishyna also gave evidence that she assists him to take his eye drops and his tablets and she prepares meals. She reports that he bumps into things and on one occasion he had a fall.

314. An occupational therapist, Natala Cogger, retained by the plaintiff noted that the plaintiff has relied on his wife for assistance with domestic and personal care tasks.

315. Ms Cogger reported that from 1 April 2015 to 24 November 2016 the plaintiff required 18.36 hours per week which was provided initially by his sister and her husband and then by his now wife. She assessed that he needed 20.11 hours per week from 25 November 2016 to 16 February 2022 which was after the plaintiff had had surgery to his right eye. This comprised 1.75 hours per week for personal care tasks for 15 minutes daily, transport for three hours per week to access the community and medical appointments, and domestic assistance for 15.36 hours per week. The breakdown of domestic assistance consists of all manner of housework including meal preparation and tidying up, vacuuming, sweeping and mopping floors, cleaning the bathroom, dusting, polishing and tidying living areas, cleaning the bedroom, making the bed and changing linen weekly, four loads of washing, two hours of shopping as well as spring cleaning. This does not appear to take into account the reasonable contribution that would be in the ordinary course provided by his wife. The plaintiff’s claim somewhat reduces the hours and cost set out in Ms Cogger’s report.

316. The defendant engaged Susan Dinley as an occupational therapist. She estimated his care needs as follows, following a very thorough assessment in her report:

(a) 6/4/15 to 30/6/16: 8.5 hours care per week;

(b) 1/7/16 to 30/11/16: 9 hours care per week;

(c) 1/12/16 to date: 9 hours care per week for 26 weeks, reducing to 6. 5 hours per week for a further 26 weeks and then falling below the statutory threshold.

317. Ms Dinley would allow 7.5 hours per week for future care.

318. These estimates are all based on the plaintiff's disability being entirely caused by what occurred on 1 April 2015. In the light of the medical evidence that is not sustainable.

319. I found Ms Cogger’s report and her evidence unsatisfactory in that she accepted what the plaintiff told her without question although she had reference to the clinical notes of SEH concerning his visual problems that predated 1 April 2015.

320. Under the heading in her report, “Previous work, personal and domestic situation”, she said this:

4.1 Mr Busa lived at his father’s home at Fairfield. He was independent in personal care tasks. He was responsible for domestic, gardening and home maintenance tasks for the household.

4.2 Mr Busa had worked as a truck driver, driving up to 60 hours a week for his brothers’ transport company. … At the time of the subject incident, he had “taken a break” from his work, in order to care for his father. …

…

4.4 Mr Busa enjoyed being physically active. He did martial arts, for which he trained 3 nights a week. He also enjoyed going snow skiing every year, and he water skied with friends who had a boat. He also played tennis socially with friends.

4.5 Mr Busa used to travel regularly to Europe, in particular spending time in Italy.

…

4.7 He had a history of diabetes type II and this was managed with insulin, diet and exercise. At the time of the incident, he denied any previous medical history that impacted on his capacity to work, engage in ADLs or lead an active lifestyle.

321. Ms Cogger agreed in cross-examination that she did not mention any of the limitations on the plaintiff that appeared in the hospital records including neck pain, cellulitis, paraesthesia across the upper chest into the right arm, right shoulder arm pain radiating from the neck, neuropathic pain and matters related to his vision. Ms Cogger said that she did not feel that the information in those records was sufficient to determine the impact they had on his capacity to manage domestic AVLs and she did not ask him about them. It must be said, that anyone reading that portion of her report that I have set out above, would not conclude that the plaintiff had any limitations on his abilities prior to the events of 1 April 2015.

322. By contrast, Ms Dinley set out in her report all the details of the plaintiff’s condition prior to 1 April 2015. I prefer the evidence of Ms Dinley in terms of the plaintiff's care needs noting, however, as I have earlier, that all of those care needs do not derive from any breach of duty on the defendant’s part on the assumption that such breach occurred.

323. Doing the best I can, I assess the hours of care for the three periods specified by Ms Dinley for the past and for the future care at 50% of those hours on the basis that the plaintiff would have needed such care regardless of any breach by the defendant on 1 April 2015. Ms Dinley does not offer the costs of care for the past but specifies personal care at $55.00 per hour, domestic care at $48.00 per hour, and maintenance care (lawns and gardens) at $62.00 per hour. I would accept those hourly rates rather than $65.00 per hour claimed by the plaintiff for the future.

Conclusion

324. Accordingly, I make the following orders:

325. Judgment for the defendant.

326. The plaintiff is to pay the defendant’s costs.

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