By Louise Cantrill, Partner and Melanie Farry, Graduate

In a recent decision of Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130, the Court found that the Defendant did not breach their duty of care to the Plaintiff in their provision of medical treatment, largely on the basis that the procedure was carried out in a way consistent with standards widely accepted by peer professional opinion in Australia.

Although the court’s finding meant that it was unnecessary to consider the issue of causation, the Court nevertheless proceeded to do so due to its relevance regarding the liability of the defendant. In doing so, the Court provided some interesting insights about causation and expert evidence in professional negligence cases.

Facts

The plaintiff underwent a tap and inject eye procedure at the Sydney Eye Hospital on 1 April 2015 to have vitreous fluid removed from his left eye. The procedure was carried out by Dr Andric. The plaintiff subsequently claimed damages for loss of vision and ongoing pain and psychiatric damage allegedly experienced as a result of the procedure. One of the key issues in question was whether the defendant breached his duty of care to the plaintiff by performing an excessive number of taps on the plaintiff’s eye.

Findings

In their decision, the Court came to the conclusion that the Plaintiff suffered from endophthalmitis and that the Defendant only made three attempts to tap the plaintiff’s eye, having considered extensive expert opinion on the matter. The Court found that the tap and inject procedure undertaken by Dr Andric was the correct treatment in the plaintiff’s circumstances, regardless of whether or not the plaintiff suffered from endophthalmitis (para [237]).

The Court found that the plaintiff’s medical history including poorly controlled diabetes, complex pressure issues as well as endophthalmitis, meant the prognosis for his left eye was very poor. In assessing causation, the Court accepted that the ‘damage the plaintiff suffered in terms of vision in his left eye would have occurred in any event’ and that the pain the plaintiff suffered was not related to the medical procedure carried out by Dr Andric, but was related to increased intraocular pressure from his other medical conditions. The court therefore held that even if a breach of duty was established, causation was not made out.

Expert evidence

Expert evidence was regularly referred to throughout the judgment, and evidently provided the basis upon which the Court arrived at its decision. The court placed much greater emphasis on the expert evidence of the defendant’s experts and took issue with much of the expert evidence provided by the plaintiff’s expert.

The plaintiff relied upon the expert evidence provided by Italian ophthalmologist, Dr Pietro Morelli. The court’s observations in relation to the expert reports of Dr Morelli is helpful in understanding the factors the Court considered in determining the weight to be placed on certain evidence.

In assessing the five reports produced by Dr Morelli, the court noted various issues with his evidence. Issues included that the initial two reports of Dr Morelli were created prior to the plaintiff’s retention of his current solicitors, that for none of the five reports were letters of instructions sent, and that the Expert Witness Code was not acknowledged until the fourth report. This was an important omission of Dr Morelli’s as the reports ‘did not set out the assumptions and material facts, including the documents he had, on which he provided his opinion’ as required under the Expert Witness Code (para [177]). The court therefore gave limited weight to Dr Morelli’s opinions as he did not identify the assumptions on which he based his opinions, nor did he identify what he was asked to provide an opinion about.

Furthermore, Dr Morelli largely relied upon representations made to him by the plaintiff and his sister, did not identify documents from Sydney Eye Hospital which he relied upon in his report and did not opine on professional practice in Australia. There were also practical issues associated with Dr Morelli’s lack of understanding of the English language. A further issue with Dr Morelli’s evidence was that he became the plaintiff’s personal doctor at some stage, meaning he lacked the same objectivity as the defendant’s experts.

Perhaps of even greater importance is the fact that Dr Morelli had never practiced as an ophthalmic surgeon in Australia and therefore did not possess the necessary experience to assess the Defendants’ conduct in accordance with s 5O of the Civil Liability Act 2002 (NSW). Indeed, Dr Morelli’s reports referred to practices in the United Kingdom and Europe which were not relevant to an assessment of standard medical practice in Australia.

Dr Morelli’s reversal of opinion about whether or not the plaintiff suffered from endophthalmitis was another strong reason the court rejected much of his expert evidence. Indeed, the court observed that 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’ (para [182]).

Conclusion

This case is important because it demonstrates the weight placed on peer professional opinion by the Australian courts in assessing the appropriateness of medical treatment provided by doctors to their patients. It further demonstrates the importance of expert evidence being given in accordance with the Expert Witness Code, which otherwise risks evidence being given little weight by the court.