Australia: Consent to medical treatment?: What is an 'intentional act' in the assessment of damages?

Dean v Phung [2010] NSWCA 223

In a recent decision of the New South Wales Court of Appeal, Dean v Phung [2010] NSWCA 223, the Court considered the circumstances in which exemplary damages would be awarded in professional negligence proceedings.

The Facts

The appellant, Todd Owen Dean (Mr Dean), was injured whilst feeding small branches lopped from a tree into a chipper. A piece of timber struck the appellant on the chin and caused minor injuries to his front teeth. As the plaintiff was injured during the course of his employment, his employer arranged for him to consult dental surgeon, Dr Mark Phung (Dr Phung).

Over the course of 53 consultations and at a cost of $73,640, Dr Phung performed root canal therapy and fitted crowns on all of the appellant's teeth.

During the trial in the Supreme Court of NSW, Dr Phung conceded liability but argued that Mr Dean's damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW) (Civil Liability Act). Mr Dean was awarded approximately $1.4 million by the trial judge. Mr Dean appealed the trial judge's decision on the limited issue of the application of the Civil Liability Act. Mr Dean said that he was entitled to an increased award for non-economic loss, interest and an award of exemplary damages, amounts which are not available under the Civil Liability Act.

Does the Civil Liability Act apply?

The Civil Liability Act governs personal injury and professional negligence proceedings. Part 2 of the Civil Liability Act governs the maximum award of damages for non-economic loss, prevents the payment of interest on awards of non-economic loss and prohibits the award of exemplary damages.

S3B of the Civil Liability Act, however, provides that:

  1. "The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
  1. civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death ...."

The issue for the Court to determine was whether S3B of the Civil Liability Act applied to the treatment provided by Dr Phung to Mr Dean. The Court noted that a medical procedure will generally be an intentional act, and in the ordinary course, is not usually performed "with intent to cause injury." The Court of Appeal held that in this case, however, it would be sufficient for Mr Dean's purpose to establish that Dr Phung knew at the time of giving the relevant treatment advice that the medical treatment was not reasonably necessary.

The trial judge found that whilst Dr Phung's treatment of Mr Dean was incompetent, it was not established on the balance of probabilities that Dr Phung's involvement was dishonest and fraudulent rather than simply incompetent. Accordingly, the trial judge considered that the Mr Dean failed to establish that s3B(1)(a) of the Civil Liability Act applied, and consequently, that damages were to be assessed under the Civil Liability Act.

The Court of Appeal, however, found that the preferable inference was that Dr Phung probably did not believe at the time he carried out the relevant treatment that the treatment was necessary. This inference was supported by the fact that the injury to Mr Dean's chin resulted in limited damage to a small number of otherwise healthy teeth and, the proper treatment identified by the various experts did not involve root canal therapy or crowns on all teeth. None of the experts could envisage circumstances in which a competent dentist would believe such treatment to be warranted and, there was a clear inference that the dental services were provided for the financial benefit of Dr Phung rather than any appropriate treatment of Mr Dean.

Did Mr Dean consent to the treatment?

The Court of Appeal then turned to consider whether Mr Dean in fact consented to the treatment provided by the respondent. If Mr Dean did not consent to the treatment, Dr Phung's treatment of Mr Dean constituted trespass, which in turn, satisfies the requirement of s3B(1)(a) of an "intentional act".

The Court held that four basic principles govern the determination of whether consent has validly been given:

  1. consent is validly given in respect of medical treatment where the patient has been given basic information as to the nature of the proposed procedure. If the nature of the procedure has been misrepresented, consent will be vitiated;
  2. absence of advice or wrong advice as to peripheral elements of a procedure, such as the risk of adverse outcomes, may constitute a breach of the practitioner's duty of care, but will not vitiate the patient's consent;
  3. the motive of the practitioner in seeking consent to the proposed treatment may establish that what was proposed by the practitioner was not intended to be treatment at all. Accordingly, although the practitioner's conduct was objectively capable of constituting therapeutic treatment, if it was undertaken solely for a non-therapeutic purpose, there will be no relevant consent;
  4. where there is an issue with consent, the burden of proof lies on the defendant practitioner to establish that the procedure was undertaken with consent.

In this case, the Court of Appeal held that the concessions on liability made by Dr Phung (i.e. his failure to claim that he held a bona fide belief in the reasonableness of the treatment and his failure to explain how he came to the belief that the treatment was reasonably necessary), were sufficient to demonstrate that Mr Dean did not consent to the proposed treatment because it was not, in fact, treatment that was necessary for his condition. Consequently, the treatment constituted a trespass to Mr Dean and S3B(1)(a) of the Civil Liability Act was held to apply to the determination of the appellant's damages.

Given that s3B(1)(a) was held to the apply to the determination of Mr Dean's damages, the Court of Appeal awarded Mr Dean $300,000 for general damages, $27,000 in interest and $150,000 for exemplary damages.


This case demonstrates that in order for the Court to make a finding that consent to medical treatment was not properly given and that damages should be awarded outside of the Civil Liability Act, the circumstances must be such that the patient's consent was clearly vitiated. In this case, the combination of 53 clearly unnecessary operations, the lack of bona fide belief as to the reasonableness of the treatment, and the financial gain of Dr Phung in the order of $73,000, constituted circumstances where the Court could make a finding that Mr Dean's consent to Dr Phung's treatment was not properly given. The unusual and serious nature of these circumstances in combination, in turn, suggests that such a finding is not one that the Court will come to lightly or in the majority of professional negligence proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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