Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital (No 2)

The plaintiff in this case, Mr Busa, was suing the South Eastern Sydney Local Health District Trading as Sydney Eye Hospital for damages arising from medical treatment he received. The case was heard and determined by the Supreme Court of New South Wales. The dispute centred on whether the plaintiff was entitled to costs and, if so, the amount of those costs. The court had to decide whether it was reasonable for the plaintiff to refuse two offers of compromise made by the defendant, as such a refusal could affect the costs order under the Uniform Civil Procedure Rules.

The court examined the circumstances under which the offers were made and whether they were reasonable. The first offer was made before the defendant had filed a defence and was a walk-away offer, meaning it could not be withdrawn. The court found it was not unreasonable for the plaintiff to refuse this offer. The second offer, made after the defendant had filed expert reports and following mediation, was not a walk-away offer. The court held that it was unreasonable for the plaintiff to refuse this offer, as it was made in a more informed context. Consequently, the plaintiff was not entitled to costs from the date of the second offer.

The court varied the costs order to reflect the unreasonable refusal of the second offer. The plaintiff was ordered to pay the defendant’s costs from the date of the second offer. This decision highlights the importance of the timing and nature of offers of compromise in determining the costs orders in medical negligence cases.