Dean v Phung [2012] NSWCA 223 (25 July 2012)

DAMAGES – torts – exemplary damages – medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect – relevance of planning and duration of course of conduct

MEDICAL PRACTITIONERS – liability in tort – defence of consent – medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect – whether defence of consent available – burden of proof of demonstrating consent of patient – whether medical practitioner was reckless as to whether treatment was either appropriate or necessary – whether exemplary damages should be awarded

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury – purpose of leaving those who commit intentional torts to the operation of the general law – whether provision engaged by treatment known not to be reasonably necessary

TORTS – trespass to the person – consent to medical treatment – requirement that basic information be given to patient – distinction between nature of procedure and peripheral characteristics – whether misrepresentation of the nature of the procedure vitiates consent – relevance of motive of practitioner in misrepresenting the proposed treatment – burden of proof of establishing that procedure undertaken with consent – whether honest and reasonable belief that patient consented a defence

Evidence Act 1995 (NSW), s 140