Dean v Phung

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.