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 $73,640.

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 broad principles:  

  1. 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.
  2. 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.
  3. 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 consent.
  4. 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.