Tan v Benkovic

In *Tan v Benkovic*, the New South Wales Court of Appeal considered a claim by a patient against a specialist plastic surgeon. The patient alleged negligence arising from a facelift procedure, claiming the surgeon's unfulfilled promises and blandishments induced her to undergo the surgery, leaving her angry and depressed by the results.

The primary legal issues before the Court of Appeal were whether the surgeon was negligent in failing to adequately inform the patient of the full range of risks associated with the facelift, and whether the patient was entitled to aggravated and exemplary damages. The Court also had to consider the application of *Rogers v Whitaker* in relation to damages for disappointment and the principles governing aggravated and exemplary damages in the context of medical negligence.

The Court found that the surgeon was negligent in not informing the patient of the full range of risks, but held that *Rogers v Whitaker* did not provide a basis for recovering damages for disappointment. The Court also determined that the surgeon had not acted improperly to encourage the patient to proceed with the facelift, nor was it appropriate to treat the patient as lacking autonomy. Regarding aggravated damages, the Court found that the surgeon had not demonstrated a "contumelious disregard for the doctor-patient relationship obligations," and therefore set aside the award of aggravated damages. Similarly, the Court found no evidence of a "conscious and contumelious disregard for the plaintiff’s rights" to justify exemplary damages, and this award was also set aside. The Court invoked the principles from *Robinson v Riley* to consider whether sufficient compensatory damages had been awarded before setting aside the aggravated and exemplary damages.

The Court of Appeal allowed the appeal with costs.