White v Johnston

Case [2015] NSWCA 18


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: White v Johnston [2015] NSWCA 18
Hearing dates:19 December 2014
Decision date: 18 February 2015
Before: Barrett JA at [1];
Emmett JA at [5];
Leeming JA at [20]
Decision:

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court dated 31 July 2013.

3. Remit the proceedings to the District Court for retrial, confined to the claim in negligence.

4. Order that Ms Johnston pay Ms White’s costs of the appeal.

5. Grant a certificate under the Suitor's Fund Act 1951 (NSW) to Ms Johnston in respect of the costs of the appeal.
Catchwords:

ASSAULT AND BATTERY - dental treatment - whether patient's consent invalid because sole purpose was non-therapeutic - whether onus lay on patient or practitioner - whether absence of consent of the gist of assault and battery

DAMAGES - exemplary damages - whether Civil Liability Act 2002 (NSW), s 3B applied - requirement to determine compensatory damages before considering whether to order exemplary damages - whether other decisions comparable

EVIDENCE - tendency evidence - whether evidence of other malpractice by practitioner wrongly admitted - whether evidence able to be used for purpose different from that for which it was tendered - whether evidence of malpractice significantly probative of performing work with no therapeutic purpose

MEDICAL PRACTITIONERS - consent to treatment - whether consent to dental treatment invalid because of wholly non-therapeutic purpose - onus of proof
Legislation Cited: Common Law Procedure Act 1852 (UK), s 80
Civil Liability Act 2002 (NSW), ss 3B, 21
Crimes Act 1958 (Vic), s 36
Evidence Act 1995 (NSW), ss 94, 95, 97, 100, 140, 192
Guardianship Act 1987 (NSW), s 37
Human Tissue Act 1983 (NSW), ss 19-20B
Justices Act 1886 (Qld)
Suitor's Fund Act 1951 (NSW)
NSW Barristers’ Rules, rr 60, 64
Cases Cited: Abrath v North Eastern Railway Co (1883) 11 QBD 440
Appleton v Garrett (1995) 34 BMLR 23; [1997] 8 Med LR 75
Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668
Ashley v Chief Constable of Sussex Police [2006] EWCA Civ 1085; [2007] 1 WLR 398
Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Attorney-General (Vict) v The Commonwealth [1962] HCA 37; 107 CLR 529
Australian Financial Services and Leasing Pty Limited v Hills Industries Ltd [2014] HCA 14; 88 ALJR 552
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279
Barker v The Queen [1983] HCA 18; 153 CLR 338
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bryant v R [2011] NSWCCA 26; 205 A Crim R 531
Carr v Western Australia [2007] HCA 47; 232 CLR 138
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519
Chan Wai Hung v Hong Kong…

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AGLC
White v Johnston [2015] NSWCA 18
Case
[2015] NSWCA 18
Decision Date

CaseChat Overview and Summary

In *White v Johnston*, the New South Wales Court of Appeal considered an appeal from a District Court judgment concerning allegations of assault and battery arising from dental treatment. The appellant, Ms White, a dentist, appealed against findings made against her in favour of the respondent, Ms Johnston, a former patient. The dispute centred on whether Ms Johnston's consent to certain dental procedures was valid, given allegations that the sole purpose of the treatment was non-therapeutic.

The Court of Appeal was required to determine several key legal issues. These included whether the consent provided by Ms Johnston was rendered invalid because the sole purpose of the dental treatment was non-therapeutic, and consequently, whether the treatment constituted assault and battery. Further, the Court had to consider the onus of proof regarding the validity of consent in such circumstances. Additionally, the Court examined the application of section 3B of the *Civil Liability Act 2002* (NSW) to an award of exemplary damages, and whether evidence of prior malpractice by Ms White had been wrongly admitted as tendency evidence.

The Court of Appeal found that the District Court had erred in its approach to the issues of assault and battery and the admission of evidence. It held that the absence of valid consent is the gist of assault and battery, and that the question of whether consent was vitiated by a non-therapeutic purpose was a matter for determination. The Court also addressed the admissibility of tendency evidence, noting that such evidence could be admitted for a purpose other than that for which it was initially tendered if it possessed significant probative value. Crucially, the Court determined that the District Court had made errors in its assessment of compensatory damages, which in turn impacted the consideration of exemplary damages under section 3B of the *Civil Liability Act 2002* (NSW).

Consequently, the Court of Appeal allowed the appeal, set aside the judgment and orders of the District Court, and remitted the proceedings for retrial in the District Court, confined to the claim in negligence. The Court ordered that Ms Johnston pay Ms White’s costs of the appeal and granted Ms Johnston a certificate under the *Suitor's Fund Act 1951* (NSW) in respect of those costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the judgment and orders of the District Court dated 31 July 2013.

3. Remit the proceedings to the District Court for retrial, confined to the claim in negligence.

4. Order that Ms Johnston pay Ms White’s costs of the appeal.

5. Grant a certificate under the Suitor's Fund Act 1951 (NSW) to Ms Johnston in respect of the costs of the appeal.

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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