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Dean v Phung

Dean v Phung

Case [2012] NSWCA 223 25 July 2012

Statutory Interpretation

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dean v Phung [2012] NSWCA 223
Hearing dates: 18 May 2012
Decision date: 25 July 2012
Before: Beazley JA at [1];
Basten JA at [2];
Macfarlan JA at [87]
Decision:
(1) Allow the appeal and set aside the order made by the trial judge on 30 June 2011 giving judgment for the plaintiff in the sum of $1,388,615.20.
(2) In place of the judgment given below, give judgment for the plaintiff against the defendant in the sum of $1,743,000.
(3) Order the respondent to pay the appellant's costs in this Court.
(4) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
DAMAGES - torts - exemplary damages - medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect - relevance of planning and duration of course of conduct

MEDICAL PRACTITIONERS - liability in tort - defence of consent - medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect - whether defence of consent available - burden of proof of demonstrating consent of patient - whether medical practitioner was reckless as to whether treatment was either appropriate or necessary - whether exemplary damages should be awarded

STATUTORY INTERPRETATION - Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury - purpose of leaving those who commit intentional torts to the operation of the general law - whether provision engaged by treatment known not to be reasonably necessary
TORTS - trespass to the person - consent to medical treatment - requirement that basic information be given to patient - distinction between nature of procedure and peripheral characteristics - whether misrepresentation of the nature of the procedure vitiates consent - relevance of motive of practitioner in misrepresenting the proposed treatment - burden of proof of establishing that procedure undertaken with consent - whether honest and reasonable belief that patient consented a defence
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 11A, 14, 16, 17, 18, 21; Pt 2
Crimes Act 1900 (NSW), s 61HA
Evidence Act 1995 (NSW), s 140
Cases Cited: Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331
Appleton v Garrett [1997] 8 Med LR 75
Barker v The Queen [1983] HCA 18; 153 CLR 338
Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; (2000) 3 HKCFAR 288
Chatteron v Gerson [1981] QB 432
D v S (1981) 93 LSJS (SA) 405
Douglas v Hello! Ltd (No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dean v Phung

Details

AGLC: Dean v Phung [2004] NSWCA 223
Case: [2012] NSWCA 223
Decision Date: 25 July 2012

CaseChat Overview and Summary

In *Dean v Phung*, the New South Wales Court of Appeal considered an appeal by a medical practitioner against a judgment awarding substantial damages to a patient. The dispute concerned medical treatment provided by the appellant to the respondent, which the respondent alleged was unnecessary, without therapeutic effect, and performed without valid consent. The core of the disagreement lay in whether the treatment constituted a trespass to the person, and if so, the appropriate measure of damages, including the availability of exemplary damages.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether the defence of consent was available to the medical practitioner when the treatment provided was objectively unnecessary and lacked therapeutic benefit. This involved examining the burden of proof in establishing patient consent and whether the practitioner's recklessness as to the appropriateness or necessity of the treatment vitiated consent. Secondly, the Court had to interpret the application of section 3B(1)(a) of the *Civil Liability Act 2002* (NSW), which preserves the operation of the general law for intentional acts done with intent to cause injury, and whether this provision was engaged by the provision of treatment known not to be reasonably necessary. Finally, the Court considered the principles governing the award of exemplary damages in such circumstances, particularly in relation to the planning and duration of the practitioner's conduct.

The Court of Appeal reasoned that the trial judge had erred in her assessment of damages. While acknowledging that the treatment constituted a trespass to the person, the Court found that the trial judge had incorrectly applied the principles for assessing damages, particularly in relation to the loss of earning capacity. The Court held that the defence of consent was not available where the treatment was objectively unnecessary and without therapeutic effect, and that the practitioner's motive in misrepresenting the treatment was relevant to the question of consent. The Court also considered the application of section 3B(1)(a) of the *Civil Liability Act 2002* (NSW), concluding that it did not preclude the award of damages for trespass to the person in this context. The Court found that exemplary damages were not warranted on the facts.

Consequently, the Court of Appeal allowed the appeal, setting aside the trial judge's order and substituting a new judgment for the plaintiff in a reduced sum. The Court ordered the respondent to pay the appellant's costs of the appeal and granted the respondent a certificate under the *Suitor's Fund Act 1951* (NSW) in respect of those costs.

Orders

Orders of the court

(1) Allow the appeal and set aside the order made by the trial judge on 30 June 2011 giving judgment for the plaintiff in the sum of $1,388,615.20.

(2) In place of the judgment given below, give judgment for the plaintiff against the defendant in the sum of $1,743,000.

(3) Order the respondent to pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Dean v Phung [2004] NSWCA 223

Most Recent Citation

Morgan v The Queen [2017] NSWCCA 269

Cases Citing This Decision

Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844
Citation 1 (Para 4)

…necessarily connotes some harm, in ordinary English language”. In this regard he relied upon the decision of this Court in Dean v Phung [2012] NSWCA 223 at [30] (Basten JA, Beazley JA (as her Excellency then was) and Macfarlan JA relevantly agreeing). There, his Honour held that, in ordinary language, “an injury is…
Melissa Reis v Emil Gayed [2024] NSWDC 269
Citation 2 (Para 80)

…al context, this requires actual knowledge as to a lack of therapeutic benefit – see for example White v Johnson [2015] NSWCA 18 and Dean v Phung [2012] NSWCA 223 at [30].…
Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71
Citation 3 (Para 51)

…ury necessarily connotes some harm, in ordinary English language”. In this regard he relied upon the decision of this Court in Dean v Phung [2012] NSWCA 223 at [30] (Basten JA, Beazley JA (as her Excellency then was) and Macfarlan JA relevantly agreeing). There, his Honour held that, in ordinary language, “an injur…
Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333
Citation 4

…king Corporation (1988) 19 NSWLR 40 Croucher v Cachia [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 Defteros v Google Inc (2017) 54 VR 592 De Reus v Gray (2003) 9 VR 432 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 Erlanger v New Sombrero Phosphate Co (…
A v B [2021] NSWDC 491
Citation 5 (Para 59)

…992) 175 CLR 218 at 310-311; [1992] HCA 15 ( Marion’s Case ) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]- [62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 226 at 2…
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
Citation 6 (Para 174)

…and that, if the matter were free from authority, he would have adopted that interpretation. But he considered that the decision in Dean v Phung [2012] NSWCA 223; (2012) Aust Torts Rep 82-111 precluded that because it allowed for a contrary interpretation.…
Chiropractic Board of Australia v Ebtash [2020] WASAT 86
Citation 7 (Para 2)

…, Rogers v Whitaker (1992) 175 CLR 479. [41] See, eg, the discussion in White v Johnston [2015] NSWCA 18 at [53]-[130] (Leeming JA); and Dean v Phung [2012] NSWCA 223 at [48]-[67] (Basten JA).…
Corcoran v Far [2020] NSWCA 140
Citation 8 (Para 19)

…ages was not based on an allegation of negligence, but of assault. It is unnecessary to consider the accuracy of the submission (but cf. Dean v Phung [2012] NSWCA 223 at [10] per Basten JA; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [132] per Leeming JA Croucher v Cachia [2016] NSWCA 132 at [33] per L…
Jeleskovic v Wagner (No. 2) [2020] NSWDC 126
Citation 9 (Para 73)

…ng him), but also that she did so with the intent to injure him. 3. Croucher v Cachia [2016] NSWCA 132 per Leeming JA at [33]; Dean v Phung [2012] NSWCA 223 per Basten JA at [10]. 4. Her Honour ultimately dissented in the result, but not in relation to this statement of principle.…
Gorman v McKnight [2020] NSWCA 20
Citation 10 (Para 73)

…d SMB (1992) 175 CLR 218 at 310-311; [1992] HCA 15 ( Marion’s Case ) supports the latter view, as does the decision of this Court in Dean v Phung [2012] NSWCA 223 at [59]-[62], the decision of the ACT Court of Appeal in Moon at [14], and the decision of the Supreme Court of Canada in Norberg v Wynrib [1992] 2 SCR 2…
State of New South Wales v Ouhammi [2019] NSWCA 225
Citation 11 (Para 8)

…of the question and the terms in which it was answered wrongly focused on the causes of action, being battery and negligence. 6. Dean v Phung [2012] NSWCA 223; [2012] Aust Torts Rep 82-111 at [10]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [131], [132] (Leeming JA); Croucher v Cachia (2016) 95 NSWLR…
Dickson v Northern Lakes Rugby League Sport and Recreation Club Inc and Anor (No.2) [2019] NSWDC 433
Citation 12 (Para 54)

…deration of s 3B before consideration of liability for the cause of action was also the course adopted by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]. 3. As it had been, at first instance, in the decisions in Croucher v Cachia and Fede v Gray, both of which are referred to below.…
SW v MK (No. 5) [2019] NSWDC 242
Citation 13

…005) 213 ALR 338 Asim v Penrose & Anor [2010] NSWCA 366 Cockburn v Jacobson [2017] ACTSC 380 Cusack v Stayt [2000] NSWCA 244 Dean v Phung [2012] NSWCA 223 Goode v Angland [2017] NSWCA 311 Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 Jones v Dunkel (1959) 101 CLR 298 King v Collins [2007] N…
Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316
Citation 14

…) 95 NSWLR 117; [2016] NSWCA 132 Dean v Phung [2012] NSWCA 223 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Imbree v McNeilly (2008) 236 CLR 510; [2008] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 K’mart Australia Ltd v McCann [2004] NSWCA 283 Lamb v Cotogno (1987) 164 CLR 1; [1987] H…
Davis v Viglianti [2017] NSWDC 452
Citation 15 (Para 112)

…the application of the Civil Liability Act 2002 (NSW) to a reckless battery, left unresolved by the New South Wales Court of Appeal in Dean v Phung [2012] NSWCA 223 and White v Johnson (2015) 87 NSWLR 779, remains unresolved (see also New South Wales v Le [2017] NSWCA 290 at [24]-[26]). I was not addressed on these…
Shalhoub v State of New South Wales [2017] NSWDC 363
Citation 16 (Para 150)

…[76]-[80]. However, the application of these phrases might not be directly applicable to an “ intent to cause injury ”, see Dean v Phung [2012] NSWCA 223 at [27]-[28] referring to State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [16].…
Morgan v R [2017] NSWCCA 269
Citation 17 (Para 37)

…the High Court’s decision in Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 (see particularly at 256-61 and see also Dean v Phung [2012] NSWCA 223 at [88]-[94]). It also accorded with the version of Watson & Purnell Criminal Law in New South Wales (1982, The Law Book Company Limited) current at the…
Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003
Citation 18 (Para 15)

…In Dean v Phung [2012] NSWCA 223; (2012) Aust Torts Reports ¶82-111, Basten JA (with whom Beazley JA (as her Honour then was) and Macfarlan JA (on this point) agreed) said at 66,347 [48]:…
Croucher v Cachia [2016] NSWCA 132
Citation 19 (Para 33)

…ass over the question whether and if so how s 3B(1)(a) applies to intentional omissions to act). This was the point made by Basten JA in Dean v Phung [2012] NSWCA 223 at [10]: “the statutory scheme is not identified by reference to a particular cause of action”.…
State of New South Wales v McMaster [2015] NSWCA 228
Citation 20 (Para 7)

…3B, the provisions of the Act, save for the provisions relating to self-defence contained in Pt 7, had no application to the claim: see Dean v Phung [2012] NSWCA 223; State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168.…
Dean v Phung [2015] NSWSC 816
Citation 21 (Para 3)

…luding exemplary damages that was determined without regard to the constraints imposed by the CLA. Mr Dean successfully appealed ( Dean v Phung [2012] NSWCA 223). The Court of Appeal found, inter alia, that Mr Dean succeeded in battery and was entitled to damages including exemplary damages that were not calculated…
White v Johnston [2015] NSWCA 18
Citation 22 (Para 17)

…ith exemplary and aggravated damages, although no claim for them had been made until the first day of the trial. His Honour said that in Dean v Phung [2012] NSWCA 223, where a dentist was involved in an extraordinary number of treatments for no particular purpose, the Court of Appeal thought that $150,000 in exempl…
Hayer v Kam [2014] NSWSC 126
Citation 23 (Para 1)

…In Dean v Phung [2012] NSWCA 223 the Court of Appeal considered a case of battery in a medical context. At [30] Basten JA said:…
Justin McMaster v State of New South Wales No. 12/4882; Georgia Karakizos v State of New South Wales No. 12/27695; Kayla McMaster v State of New South Wales No. 12/27725 [2013] NSWDC 244
Citation 24

…CLR 153 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Underhill v Sherwell [1997] NSWCA 325 R v XY (2010) 79 NSWLR 629 Dean v Phung [2012] NSWCA 223 Crimmins v Stevedoring Industry Finance Committee (1999) CLR 1 D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 State of New South Wales v Tysz…
Fardous v Dan [2013] NSWSC 581
Citation 25 (Para 1)

…e severe findings against the defendant that would be necessary to invoke that provision would, or even might, be made in this case (see Dean v Phung [2012] NSWCA 223 at [30] per Basten JA).…
Bain v Bambit and Australian Health Practitioner Regulation Agency [2012] NSWDC 113
Citation 26 (Para 1)

…f argument on that date, it was later submitted that on 25 July 2012, a decision of some relevance to this application became available: Dean v Phung [2012] NSWCA 223. At the re-listing of this matter on 8 August 2012 for further argument, the parties made further submissions relating to that decision.…

See all citing cases →

Cases Cited

Dean v Phung [2011] NSWSC 653
Citation 1 (Para 1)

…damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW). The trial judge, Hislop J, accepted that submission: Dean v Phung [2011] NSWSC 653. He awarded the plaintiff approximately $1.4 million. The appeal is limited to a challenge to the application of the Civil Liability Act . In the eve…
Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215
Citation 2 (Para 1)

…Dr Phung: Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331. (An appeal was dismissed by this Court: Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215.)…
Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331
Citation 3 (Para 1)

…t's employer, Advanced Arbor Services Pty Ltd. The employer has since recovered those payments from Dr Phung: Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331. (An appeal was dismissed by this Court: Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215.)…
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Citation 4 (Para 1)

…vitable consequence, or a "calculated" consequence, or as "a natural and probable result" of the intentional act: see Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 at [76]-[81].…
State of New South Wales v Ibbett [2005] NSWCA 445
Citation 5 (Para 1)

…The application of the phrase "intent to cause injury" arose in State of New South Wales v Ibbett [2005] NSWCA 445 (reported in part at 65 NSWLR 168) which concerned the operation of s 3B(1)(a) in respect of conduct of a police officer which put an elderly woman under an apprehension of physical violence. Spigelman…
Manly Council v Byrne [2004] NSWCA 123
Citation 6 (Para 1)

…erised as two different forms of inference permitted by Jones v Dunkel [1959] HCA 8; 101 CLR 298, as explained by Campbell J in Manly Council v Byrne [2004] NSWCA 123 at [51], both were said to be available in the present case.…
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
Citation 7 (Para 1)

…sary to consider whether exemplary damages are available for a claim which arises only in negligence: see eg Hunter Area Health Service v Marchlewski [2000] NSWCA 294; 51 NSWLR 268. Following discussion at the hearing of the appeal, counsel for the appellant accepted that he needed to establish liability for trespa…
Gray v Motor Accident Commission [1998] HCA 70
Citation 8 (Para 1)

…Ipp JA in Ibbett agreed with the Chief Justice, also adopting the language of Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [14] that such damages were warranted where there was "conscious wrongdoing in contumelious disregard of another's rights": ibid at [137]. As further explained in Gray at [15…
Rogers v Whitaker [1992] HCA 58
Citation 9 (Para 1)

…This line of authority has been approved by the High Court in Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 490, stating that "the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed". Reference was made to…
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15
Citation 10 (Para 1)

…, such as cosmetic surgery, would not generally be so described: compare Secretary, Department of Health and Community Services v JWB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 269 (Brennan J). The somewhat controversial distinction between therapeutic and non-therapeutic purposes may be disregarded. The appe…
Lamb v Cotogno [1987] HCA 47
Citation 11 (Para 1)

…spect of the community of dental practitioners and, in any event, the conduct did not fall within the descriptions adopted in Uren and Lamb v Cotogno [1987] HCA 47; 164 CLR 1.…
Barker v The Queen [1983] HCA 18
Citation 12 (Para 1)

…support for my views may be found in principles concerned with the common law concept of trespass to land. As stated by Mason J in Barker v The Queen [1983] HCA 18; 153 CLR 338 at 342, "a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enter…
McHale v Watson [1964] HCA 64
Citation 13 (Para 1)

…That view would appear to conform to the reasoning of Windeyer J in McHale v Watson [1964] HCA 64; 111 CLR 384 at 388-389, although the issue arose in a somewhat different context. (See also D Mendelson, The New Law of Torts (OUP, 2nd ed, 2010) at 241-242 and RP Balkin and JLR Davis, Law of Torts (LexisNexis, 4t…
Jones v Dunkel [1959] HCA 9
Citation 14 (Para 1)

…om the expert evidence. Whether or not these are properly characterised as two different forms of inference permitted by Jones v Dunkel [1959] HCA 8; 101 CLR 298, as explained by Campbell J in Manly Council v Byrne [2004] NSWCA 123 at [51], both were said to be available in the present case.…
Jones v Dunkel [1959] HCA 8
Citation 15 (Para 1)

…to be drawn from the expert evidence. Whether or not these are properly characterised as two different forms of inference permitted by Jones v Dunkel [1959] HCA 8; 101 CLR 298, as explained by Campbell J in Manly Council v Byrne [2004] NSWCA 123 at [51], both were said to be available in the present case.…
Papadimitropoulos v The Queen [1957] HCA 74
Citation 16 (Para 1)

…In adopting this approach, the Court of Appeal followed the reasoning of the High Court in Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249, a case in which the accused was charged with rape on the basis that the woman's consent depended on her (false) belief that the pair had gone through a valid marriag…
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40
Citation 17 (Para 1)

…ded where the conduct in question was "reprehensible, highhanded, outrageous or insulting", adopting language from Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118. He also noted the appellant's contention that such damages were justified by the need for both retribution and general deterrence. He s…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Citation 18 (Para 1)

…s supported by reference to s 140 of the Evidence Act 1995 (NSW) and statements of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 170-171 (Mason CJ, Brennan, Deane and Gaudron JJ). That principle may be accepted.…
[1981] QB 432 [1981] QB 432
Citation 19 (Para 1)

…A similar approach, adopted by the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112, was followed by Bristow J in Chatteron v Gerson [1981] QB 432. When Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 was decided by the English Court of Appeal, Reibl had reached the Ca…
[1980] 2 SCR 880 [1980] 2 SCR 880
Citation 20 (Para 1)

…nsent, going to negligence rather than battery, "unless there has been misrepresentation or fraud to secure consent to the treatment": Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1 at [13]. A similar approach, adopted by the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112, was followed by Bristow…
Reibl v Hughes (1981) 114 DLR 3
Citation 21 (Para 1)

…ure consent to the treatment": Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1 at [13]. A similar approach, adopted by the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112, was followed by Bristow J in Chatteron v Gerson [1981] QB 432. When Sidaway v Board of Governors of the Bethlem Royal Hospital [1984…
[1984] 1 QB 493 [1984] 1 QB 493
Citation 22 (Para 1)

…1978) 89 DLR (3d) 112, was followed by Bristow J in Chatteron v Gerson [1981] QB 432. When Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 was decided by the English Court of Appeal, Reibl had reached the Canadian Supreme Court and was followed. Dunn LJ adopted the language of Chatterton…
[1923] 1 KB 340 [1923] 1 KB 340
Citation 23 (Para 1)

…cted of rape in respect of sexual intercourse with a 16 year old girl to whom he was giving singing and voice production lessons: The King v Williams [1923] 1 KB 340. The girl's consent was found to have been procured by fraud. The nature of the act to which she consented was, objectively, not medical treatment at…
[2005] 3 WLR 881 [2005] 3 WLR 881
Citation 24 (Para 1)

…se of submissions to the language of paragraph (a), but that after the hearing the Court's attention had been directed to Douglas v Hello! Ltd (No 3) [2005] 3 WLR 881 (EWCA). A brief description of the case and the issue raised was set out at [219]. As the English Court in Douglas noted, "there are a number of cont…
[1999] QB 444 [1999] QB 444
Citation 25 (Para 1)

…Not all cases, however, have involved sexual assaults. Regina v Richardson [1999] QB 444 involved a dental practitioner who had been convicted on six counts of assault occasioning actual bodily harm, for carrying on practice as a dentist after she had been suspended. The Court of Appeal (Otton LJ, Turner and Dys…
[1944] 2 DLR 61 [1944] 2 DLR 61
Citation 26 (Para 1)

…In R v Harms [1944] 2 DLR 61 the Saskatchewan Court of Appeal upheld a conviction for the rape of a woman who had consented to a sexual act, by a person who described himself as a doctor, because he falsely led her to believe that he was performing necessary medical treatment. In Papadimitropoulos the High Court a…

Legislation Cited

Civil Liability Act 2002 (TAS) 11A, 14, 16, 17, 18, 21, 3B, 3B(1)(a)
9 mentions (from Para 1)
Crimes Act 1900 (ACT) 61HA, 61HA(5)(b)
2 mentions (from Para 1)
Evidence Act 1995 (Cth) 140
2 mentions (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention

Medium Neutral Citation:	Dean v Phung [2012] NSWCA 223
Hearing dates:	18 May 2012
Decision date:	25 July 2012
Before:	Beazley JA at [1]; Basten JA at [2]; Macfarlan JA at [87]
Decision:	(1) Allow the appeal and set aside the order made by the trial judge on 30 June 2011 giving judgment for the plaintiff in the sum of $1,388,615.20. (2) In place of the judgment given below, give judgment for the plaintiff against the defendant in the sum of $1,743,000. (3) Order the respondent to pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DAMAGES - torts - exemplary damages - medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect - relevance of planning and duration of course of conduct MEDICAL PRACTITIONERS - liability in tort - defence of consent - medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect - whether defence of consent available - burden of proof of demonstrating consent of patient - whether medical practitioner was reckless as to whether treatment was either appropriate or necessary - whether exemplary damages should be awarded STATUTORY INTERPRETATION - Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury - purpose of leaving those who commit intentional torts to the operation of the general law - whether provision engaged by treatment known not to be reasonably necessary TORTS - trespass to the person - consent to medical treatment - requirement that basic information be given to patient - distinction between nature of procedure and peripheral characteristics - whether misrepresentation of the nature of the procedure vitiates consent - relevance of motive of practitioner in misrepresenting the proposed treatment - burden of proof of establishing that procedure undertaken with consent - whether honest and reasonable belief that patient consented a defence
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 11A, 14, 16, 17, 18, 21; Pt 2 Crimes Act 1900 (NSW), s 61HA Evidence Act 1995 (NSW), s 140
Cases Cited:	Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331 Appleton v Garrett [1997] 8 Med LR 75 Barker v The Queen [1983] HCA 18; 153 CLR 338 Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; (2000) 3 HKCFAR 288 Chatteron v Gerson [1981] QB 432 D v S (1981) 93 LSJS (SA) 405 Douglas v Hello! Ltd (No…