In this case,1 the NSW Court of Appeal overturned a District Court judgment which had found a dentist to have committed assault and battery on a patient when performing dental treatment.
The dentist had filled the patient’s lower canine and molar teeth and built up her front bottom teeth. The patient alleged that the treatment was ineffective and solely carried out to secure fees from the Department of Veterans’ Affairs.
The District Court found that the dental work was wholly unnecessary and had been carried out simply for the purpose of extracting money. Assault and battery had therefore occurred. In arriving at this conclusion the Court relied on evidence of malpractice which had been admitted on the basis that it showed a tendency to perform work that was unnecessary. The dentist was ordered to pay compensatory damages totalling $140,000 as well as $150,000 in exemplary damages. The dentist appealed to the NSW Court of Appeal.
The appeal raised three issues:
- whether assault and battery had occured;
- the admission of tendency evidence2 of other malpractice by a medical practitioner; and
- the award of exemplary damages.
The Court confirmed that where a medical practitioner is solely motivated by an unrevealed non-therapeutic purpose, the patient’s consent is not valid and the practitioner may be liable for assault and battery. It also confirmed that the patient bears the onus of proving that the treatment did not have any therapeutic purpose and also if it is alleged that consent was obtained fraudulently.
The Court found that the trial judge had erroneously admitted the tendency evidence since it was not considered to be of sufficient probative value.
The Court also found that the trial judge was wrong to award exemplary damages in the absence of a finding that the defendant’s act was actually intended to cause injury.
The Court allowed the dentist’s appeal and remitted the patient’s claim to the District Court for retrial on the previously unconsidered question of whether there had been any negligence on the dentist’s part
This decision clarifies the law surrounding consent, in particular, that where a medical practitioner is solely motivated by an unrevealed non-therapeutic purpose, a patient’s consent is not valid and there will be an assault and battery.
It also clarifies that the onus of proof lies with the patient in proving treatment was non-therapeutic or if it is alleged that consent was fraudulently procured.