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
[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.
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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.