Tan v Benkovic

[2000] NSWCA 295

CITATION:	TAN v BENKOVIC [2000] NSWCA 295
FILE NUMBER(S):	CA 40109/99
HEARING DATE(S):	25 August 2000
JUDGMENT DATE:	26 October 2000
PARTIES :	Dr Eng-Peng TAN v Seka BENKOVIC
JUDGMENT OF:	Mason P at 1; Stein JA at 51; Heydon JA at 52

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2644/97
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL:	Appellant: P R Garling SC Respondent: D H K Donovan QC
SOLICITORS:	Appellant: Phillips Fox Respondent: Gerard Malouf & Partners
CATCHWORDS:	Negligence - specialist plastic surgery - unfulfilled promises and blandishments of surgeon induce patient to have facelift - patient left angry and depressed by surgery results - surgeon found negligent in not informing patient of full range of risks - Rogers v Whitaker not offering a basis for recovering damages for disappointments - surgeon not acting improperly to encourage patient to proceed with facelift - not proper to treat patient as lacking autonomy - aggravated damages - discussion of expression "contumelious disregard for the doctor-patient relationship obligations" - aggravated damages set aside - exemplary damages - gross negligence attending a medical procedure - surgeon not showing a conscious and contumelious disregard for the plaintiff’s rights - exemplary damages set aside - invocation of Robinson v Riley to consider whether sufficient compensatory damages awarded before setting aside aggravated and exemplary damages - (D).
DECISION:	Appeal allowed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40109/99
DC 2644/97

MASON P
STEIN JA
HEYDON JA


Thursday 26 October 2000


ENG-PENG TAN v SEKA BENKOVIC

The respondent sued the appellant in the District Court claiming damages for negligence as a specialist plastic surgeon. On 19 April 1995 the respondent’s general practitioner gave a referral to the appellant “for cosmetic surgery”. She saw the appellant on 9 May 1995 and decided to have a facelift in light of the discussion. The appellant told the respondent on 9 May that he would make her look 20 years younger; she would feel like a different person; and the operation would not leave her looking like a mummy. The appellant also told the respondent that it was his mission on earth to make people beautiful and that facelifting was his specialty (“the blandishments”).

On a visit on 29 August 1995 the appellant discussed a number of post-operatives that would or might occur. The surgery occurred at a later date. From the outset the respondent complained about the outcome. She was unhappy about tightness, asymmetry and lines on her lips. Initially the appellant told the respondent that the facial surgery could not be reversed, and he refused to carry out any further surgical procedures. The respondent persisted in her complaints, there were attempts to telephone the appellant which were taken by his nurse/receptionist but not transferred through to him. The appellant later carried out revision surgery on the respondent’s lips, and performed minor excision surgery and scar revision. The appellant finally refused to perform any more surgery…