White v Johnston

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.