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Remedies Assignment

Introduction to Dean v Phung Case Study

Dean v Phung is a landmark judgement on medical battery. In this case the court of Appeal awarded exemplary damages to the plaintiff against the defendant dentist for performing the operation without taking the consent from the plaintiff. The dentist has claimed that he is only liable for the damage of negligence and he is not liable for exemplary damage. The exemplary damage is also known as punitive damage, its role is of deterrence and punishment. The question raised in this case is that whether Mr.Dean is entitled to an increased award for non-economic loss, interest on the award, and exemplary damage. Whether Civil Liability Act 2002 (NSW) is applicable in the present case? Whether exemplary orders have been overused is an important issue? Whether treatment that is unnecessary or ineffective amounts to trespass to a person?

 In this case study the facts of the case are analysed followed by the issues involved in the case and then followed by the rules that are used in this case. After that the Court of Appeals justification in awarding exemplary damages is discussed. Then the case of White v Johnson is discussed. In this case an approach different from that of Dean v Phung has been taken due to minor difference of facts. After that the evolution of exemplary damage in Australia has been discussed. Then the difference between battery and negligence is discussed to understand the concept of medical battery the cases of F v R and D V S are discussed in detail. In these two cases there is discussion about informed consent. The question raised is whether doctor should inform about the risk associated with the operation that he is performing. In order to answer question raised in this case the approach taken by the courts of the United States and the United Kingdom has also been mentioned.

Facts in Dean v Phung

In Dean v Phnng the appellant Mr.Dean was injured while working for his employer. His front tooth was injured due to timber while working. His employer arranged his appointment with Mr. Phung, a dentist as he was in pain. In 12 months Dr. Phung carried out a root canal and fitted crowns on all of Mr. Dean’s teeth. He was charged an amount of $73,640 for 53 sessions.[1] After this Mr. Dean was referred to another doctor who informed Mr. Dean that the work carried out by Dr.Phung is fraudulent and it can’t be possible that all 28 teeth can be damaged. His work also involved poor dentistry. After review by an independent doctor, Mr.Dean had to undergo remedial work costing around $50000. The amount was paid by Mr.Dean’s insurer GIO thus GIO brought an action against Dr.Phung on Mr. Dean's name.[2]

Issue

The issue that came, in this case, was whether Mr.Dean was eligible for compensation under the Civil Liability Act 2002 (NSW). The question that needs to be answered is whether Mr. Dean is entitled to an increased award for non-economic loss, interest on the award, and exemplary damage

Rule

Section 3(B) of the Civil Liability Act 2002 (NSW)

Application

The dentist accepted that his action was wrong under the Civil Liability Act 2002 and he accepted for damages of $300,000 whereas the appellant claimed that he is entitled to $450,000 under general law and he is entitled to get another $200,000 as exemplary damage. The exemplary damage which is also known as punitive damage, its role is of deterrence and punishment.[3]

Court of appeals Justification in awarding exemplary damages.

According to Section 3B, the provision of the Civil Liability Act does not apply if an intentional act is done by the person to cause injury to the person or to cause the death of the person. The trial judge had held that he doesn't believe that dishonesty or fraud has been established on the actions of the dentist, he stated that it is a clear action of the incompetence of the dentist. Thus he inferred that he approved the claim of negligence and disapproved of the claim for trespass to the person. But the finding at appeal was different compared to the trial court judgment. It held that the Civil Liability Act 2002 does not apply in the present case. The treatment carried by the doctor was held not to be necessary by the judges at the appellant court. They made the inference based on the following factors.

  • The damage to the appellant’s teeth was limited to a small number of teeth.
  • The experts believe that the treatment did not require root canal therapy and applying crowns on all the teeth
  • No expert believes that any competent doctor would require to undertake treatment that cannot be reversed.
  • Even though the report made by the dentist was unclear and not proper, but it was not proved that the doctor was incompetent.
  • The inference can be reached that the procedure was conducted for the financial benefit of the dentist, as the dentist failed to give any proof of his innocence confirms that the procedure was conducted for his benefit.
  • Based on the above facts it can be concluded that the dentist had acted with an element of dishonesty

The court of appeal referred to the difference between the tort of trespass and civil liability legislation on exclusion. It was held that both of them are different issues and to prove each one of the different elements needs to be established. [4] Concerning action for trespass arising to a person due to an operation or medical treatment the liability will be determined based on the consent given by the patient. Whereas in case of the application of Section 3B (1) (a) of the Civil Liability Act 2002 (NSW) it depends on the intention that the defendant had in the particular case. Even in cases where the conduct of the defendant is said to destroy the consent the issue is different in each case and the real question that may arise is the party on whom the burden of proof lies. First, the operation of Section 3B needs to be addressed then the cause of action need to be determined.

Basten JA dealt with the law relating to consent, in case of medical treatment the consent is given when the patient is informed about the nature of the procedure that the doctor plans to conduct. However where the nature of the procedure is misrepresented by the doctor that he plans to undertake, then the consent will not be valid. Thus if it is shown that the procedure carried out by the doctor is not capable of addressing the client's problem then valid consent doesn't exist. In case of wrong advice or no advice will constitute a breach of the doctor's duty and will not invalidate the consent. If the proposed treatment was different from the treatment that was carried out. Then in that case too there will not be any consent. Where the real issue is the existence of valid consent it is on the defendant to show that the consent was obtained.

The defense to the tort of trespass is the consent given by the patient in cases of medical negligence. Where consent is apparent and it is challenged later on. It has to determine whether the consent is valid.

The trial judge in this case had agreed that Dr.Phung was liable for negligence but denied that his liability in the case of trespass to Mr. Dean while operating on him. Trespass to a person was decided in Rogers v Whitaker[5]. In this case, an operation was to be performed in the plaintiff's eye. A risk was involved in operating the plaintiff's eye. The doctor failed to inform about the risk that was involved in operating. The court decided that the doctor was negligent in not informing the patient about the risk that is involved in performing the eye operation. Thus if the nature of treatment is not disclosed properly or not at all disclosed then the action of trespass is available to the patient. In this case, too the nature of treatment was not at all disclosed to the patient thus based on the principle laid down in the above case the dentist had committed trespass. According to American and Canadian law, the onus of proof of trespass is on the doctor. The action of battery is always available to the patients in Canada where the doctor has conducted medical treatment which is not authorized.[6] Similarly in this case too based on the principle laid down in Canada and the United States it can be said that the medical treatment conducted on Mr. Dean was not authorized by him. It was not authorized because the dentist had conducted the treatment which was not required to be done, if Mr. Dean knew that the procedure done on him was not required he would have never authorized the doctor to proceed

White v Johnson

In White v Johnson[7] it was held by the trial court that the appellant a dentist while operation on a former patient was that the treatment was unnecessary and ineffective thus amounted to trespass. The plaintiff was awarded damage of $33000 including exemplary damage of 150,000. The main issue that needs to be determined is whether the respondent's consent has been vitiated. In this case, the evidence doesn't suggest that was unnecessary and it was carried out to make money from the respondent. The judge in this case held that it was wrong that the appellant had the onus to prove that he did not act fraudulently. The judgment was set aside and a retrial was ordered.

History of Exemplary damage in Australia

The primary objective of exemplary damage is punishment and deterrence. The courts believe that exemplary damages have been used more often than required. It has also been observed by courts and experts that the exemplary awards are excessive on various occasions. Thus they believe that the exemplary damage should be rarely and with care. It can also be seen that the use of exemplary damage has been restricted by various legislation as can be seen by Section 3B of the Civil Liability Act 2002. [8]

The exemplary damage was first used in Australia in the case of Whitfeld v De Lauret & Co Ltd[9]. In this case, it was held that it is available where the defendant shows contumelious disregard to the right of the plaintiff. The House of Lord decision in Rookes v Bernanrd[10] Lord Devlin decided that the damages will be allowed in the following three cases.

  • The action carried out by the government servants are arbitrary or unconstitutional
  • When the defendant's actions were to make a profit for himself.
  • When the statutory law specifically provides for exemplary damage.

In Uren v John Fairfax & Sons Pty Ltd [11] the approach given under Rookes has not been followed. It was decided that the rule given under Whitefield will be followed. Thus after this case, the rule laid down in Whitefield is followed in Australia.

Battery and Negligence in Medial Law Cases

A medical battery is similar to a traditional battery. The battery is harmful or offensive touching of another person. But in the medical battery, this touching would be carried out in a medical setting. In the case of a medical battery, the doctor would be involved in harmful touch to his patients. The intent needs to be shown to prove the medical battery. The intentional tort of the battery would involve physical contact with the patient. In such cases, the plaintiff need not prove that doctor interfering with the body intended any harm. In Schloendorff v. Society of New York Hospital[12] the patient was admitted to the hospital. The admitted patient approved the doctor to examine whether the identified tumor was malignant. Even though he had allowed the doctor to check the tumor he had refused to permit operating the tumor. But the doctor operated the tumor. The court held that the operation for which the permission of the plaintiff was not taken is a battery. In this case, it was observed that every human being has the right to decide what is to be done with his body. This is the case except in cases where the patient is not conscious and the operation is to be conducted urgently.

If a patient has agreed to the medical procedure but the procedure is carried out on the patient without being warned about the procedure. Thus the consent given by the patient is ineffective. This leads the practitioner to open to the suit of the battery. The suit of battery has various advantages over the action for negligence. It can also be seen that both reliefs are available on the same facts. To succeed in a case of negligence it is necessary that different elements of negligence need to be proved which is difficult to prove. If a case needs to be proved under battery then it has to be proved that there was intentional touching by the defendant of the plaintiff's body. But consent will be a defense in such actions. In cases where the plaintiff has brought the case of the battery, the burden will mostly be on the defendant.

In American cases, it has been held that if the patient is not informed about the consequences and threat then the consent obtained will not be valid. The defendant would lose the suit until and unless it is proved by him that an actual consent was taken by him. The doctor is required to inform his patient otherwise he would be liable for battery. The failure to inform would also amount to a breach of duty.

D v S[13]

The plaintiff in this case experience neck pain due to large breasts. The plaintiff approached the defendant's doctor for consultation. The doctor suggested an operation to reduce the size of the breast which would reduce the pain she was experiencing in her neck. Plaintiff was concerned about scarring to which she was told that there would be a faint scar on the breasts. The plaintiff was reluctant to undergo an operation but she was assured by the doctor of good results. After recovering from the operation the plaintiff was shocked to find out that one nipple was larger, the nipples were not aligned, the breasts were of different sizes. An operation to correct the mistakes committed by the defendant was carried out which made a certain improvement. The doctor agreed to the cost of a corrective operation. In this case, the court held that the defendant should have informed the plaintiff about the risks associated with the operation. As he failed to inform the patient about the risks involved it can be said that the consent obtained was not informed consent and the plaintiff would not have agreed for the operation. Several programs have been introduced to ensure that the offender doesn't repeat any criminal activities.

F v R[14]

The plaintiff was pregnant for the third time and she sought advice on sterilization from the Doctor. Sterilization was performed on the plaintiff by the defendant doctor. But the sterilization process was reversed by a process called recanalization. Plaintiff gave birth to a child. The plaintiff's claim for the battery was rejected and she was give damage for negligence based on failure to warn. The plaintiff claimed that they would have chosen a certain way of sterilization. Whether it was a breach of duty for the surgeon as he failed to inform about the chance of recanalization. They disagreed with the trial judge and appeal was allowed. It was held that if a doctor sticks to the usual practice of the profession then it is strong evidence against negligence.

Such exemplary damage should only be open to those who prove that battery is committed. Battery involves element of intent whereas under negligence there is no intent. In cases of battery, it has to be proved that the doctor intended to harm. Based on the above cases it is also seen that if the doctor has not informed about the consequence of the medical treatment and the patient suffers loss then the doctor is guilty of battery. Whereas in case of negligence failure to take proper care needs to be proved. In case of exemplary damage, the primary objective is deterrence and punishment. Thus deterrence or punishment can only be used where the intent is proved. In the above cases intent can be shown either directly or indirectly.

Conclusion on Dean v Phung Case Study

In the case of Dean v Phung Mr.Dean was entitled to exemplary damage. The trial court judge held that Mr. Phung was negligent and Mr.Dean was not eligible to obtain exemplary damage. But during the appeal, the court held that the Civil liability Act 2002 (NSW) is not applicable in this case. The treatment carried out by the dentist was held not to be necessary. Thus in this case Mr. Dean was eligible for exemplary damage. Based on different cases discussed above the concept of trespass to a person and medical battery is cleared.

Bibliography for Dean v Phung Case Study

Cases

  • Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331
  • D v S (1981) 93 LSJS 405
  • Dean v Phung [2012] NSWCA 223
  • F v R (1983) 106 LSJS 13
  • Rogers v Whitaker [1992] HCA 58
  • Rookes v Bernanrd [1964] AC 1129
  • Schloendorff v. Society of New York Hospital 211 N.Y. 125
  • Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40
  • White v Johnson [2015] NSWCA 18
  • Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Journal Article

  • E. Picard, “Onus of Proving Consent in Trespass to the Person: On Whom Does it Rest?” 17 (2) Alberta Law Review, 322.
  • Felicity Maher, ‘An empirical study of exemplary damages in Australia’ (2019) 43 (2) Melbourne University Law Review, 696
  • Michael J Legg, ‘Economic Guidlines for Awarding Exemplary Damages’ (2004) 30 Monash U. L. Rev. 303.
  • Tina Cockburn and William Madden, ‘Strategically pleading intentional torts claims in medical cases. Precedent’ (2015) 130 Quuensland University of Technology, 32

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