The New South Wales Court of Appeal recently considered one set
of circumstances that took the assessment of damages for a personal
injuries claim arising out of medical treatment outside the scope
of the Civil Liability Act 2002 (NSW) (the Act).
The Act does not cover liability arising from intentional acts
done by a person with intent to cause injury. Such acts (for
example an assault) entitle a plaintiff to access damages
entitlements (such as punitive damages*) that would otherwise be
removed by the Act.
The claim in question arose out of a relatively minor workplace
injury suffered by Mr Dean, who was struck on the chin by a piece
of timber in 2001. He suffered minor injuries to his front teeth.
These injuries were treated by dental surgeon Dr Phung, who over
the course of around a year and 53 consultations performed root
canal therapy and fitted crowns to all the claimant's teeth.
The treatment cost Mr Dean's workers compensation insurer
The medical evidence indicated that the extensive treatment was
unnecessary. Mr Dean sued, and Dr Phung admitted liability in
negligence but denied liability for trespass to the person.
The trial judge found that it had not been established that Dr
Phung's involvement was dishonest and fraudulent, rather than
incompetent. The court of appeal took a different view, and found
that the preferable inference was that Dr Phung probably did not
believe that all of the treatment was necessary.
The majority (Basten JA, Beazely JA agreeing) then discussed
what constitutes consent to medical treatment. Basten JA noted 4
Consent is validly given in respect of medical treatment where
a patient has been given basic information as to the nature of the
procedure. Where the nature of the procedure has been
misrepresented, consent will not be validly given. If a procedure
of the nature carried out was not capable of addressing the
condition there cannot be valid consent.
Assuming the proposed treatment is capable of providing a
therapeutic effect, it is necessary to distinguish between core
elements defining the nature of the procedure and peripheral
elements such as risks involved.
The motive of the practitioner in seeking consent to proposed
treatment may establish that what was proposed was not intended to
be treatment at all so that the nature of the act to which consent
was ostensibly given was not the act carried out – ie consent
was given to treatment, but what was provided was not in fact
treatment. In these circumstances there would be no relevant
If a real issue is raised as to the existence of a valid
consent, the burden of proof will lie on the medical practitioner
to establish that the procedure was undertaken with consent.
The court concluded that the concessions made by Dr Phung were
sufficient to demonstrate that Mr Dean did not consent to the
proposed treatment because it was not in fact treatment necessary
for his condition.
The treatment accordingly constituted a trespass to the person.
The claim did not fall within the scope of the Act, and the court
awarded exemplary damages of $150,000 together with other damages
resulting in a total award of $1,743,000.
*punitive damages are damages awarded to punish, to deter and to
demonstrate the court's disapproval of the conduct in question
rather than to compensate the plaintiff.
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The phrase "consequential loss" is very commonly used in exclusion and limitation of liability clauses.
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