White v Johnston [2015] NSWCA 18: A Case Analysis

Case Name: White v Johnston

Citation: [2015] NSWCA 18
Judgment Date: 18 February 2015
Judges: Barrett JA, Emmett JA, Leeming JA
Court: Supreme Court of New South Wales – Court of Appeal
Area of law: Assault and battery, medical negligence, admissibility of tendency evidence

What is the case about?

The case White v Johnston [2015] NSWCA 18 revolves around an appeal against a judgment concerning dental malpractice and assault allegations. The dispute originates from treatments performed by Dr. Jasmin White on Ms. Ruth Johnston between June and December 2009. The primary claim was that the dental procedures were unnecessary, ineffective, and performed with the sole purpose of financial gain rather than therapeutic benefit. The initial trial in the District Court found in favour of Ms. Johnston, awarding compensatory and exemplary damages.

Key Issues in the Case (White v Johnston)

The case addressed several legal questions, including:

Consent in Medical Treatment – Whether Ms. Johnston’s consent was invalid due to a wholly non-therapeutic motive behind the treatment. Whether the dental procedures performed were unnecessary, ineffective, and negligently performed.

Onus of Proof – Whether it was Ms. Johnston’s responsibility to prove fraudulent intent or Dr. White’s duty to prove the legitimacy of the treatment.

Evidentiary Issues – The admission of evidence regarding past malpractice by Dr. White, and whether this evidence was wrongly considered.

Exemplary Damages – Whether the damages awarded were appropriate, especially given that compensatory damages were not first determined.

Background and Lower Court Ruling

The District Court found that Dr. White carried out unnecessary treatments solely for financial gain and that Ms. Johnston’s consent was invalid due to the non-therapeutic nature of the procedures. The court relied on additional malpractice evidence, including a previous conviction of Dr. White for fraudulently obtaining payments for services not rendered (a tendency to overcharge for treatments and engage in fraudulent practices). The ruling concluded that Dr. White committed assault and battery, leading to substantial damages being awarded.

Appeal and Supreme Court Findings in White v Johnston

Dr. White appealed, challenging the trial court’s findings. The Supreme Court of New South Wales Court of Appeal overturned the initial ruling on several grounds:

The evidence did not conclusively prove that all treatments lacked therapeutic intent.

The onus was on Ms. Johnston to establish fraud, rather than Dr. White to disprove it.

The reliance on prior malpractice evidence was inappropriate for proving that none of the treatments had therapeutic value. It was not sufficiently probative of the specific allegations against Ms. White.

The exemplary damages award was flawed because it was determined before compensatory damages.

Outcome

The Court of Appeal allowed the appeal, set aside the previous judgment, and ordered a retrial confined to the negligence claim, not on assault and battery.

Ms. Johnston was ordered to pay Ms. White’s appeal costs.

A certificate under the Suitor’s Fund Act 1951 (NSW) was granted to assist Ms. Johnston in covering the costs of the appeal.

Legal Precedents Considered

The ruling referenced multiple cases, particularly Dean v Phung [2012] NSWCA 223, which similarly involved a dentist conducting unnecessary procedures. However, the court found that the cases were not directly comparable.

Conclusion (White v Johnston)

This case highlights the complications surrounding fair treatment in the medical world. Courts can intervene if a medical treatment is alleged to be unjust or primarily carried out for financial gain. However, they are likely to thoroughly examine all available evidence to determine whether the treatments were actually fraudulent and unnecessary.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2015/18.html

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The Court’s Verdict in Dean v Phung [2012]: Medical Liability

Case Name and Citation: Dean v Phung [2012] NSWCA 223

Court: Supreme Court of New South Wales – Court of Appeal
Judgment Date: 25 July 2012
Judges: Beazley JA, Basten JA, Macfarlan JA
Legal Areas: Medical negligence, trespass to person, consent in medical treatment, exemplary damages

What is the case about?

The case of Dean v Phung [2012] NSWCA 223 is an appeal judgment from the Supreme Court of New South Wales – Court of Appeal concerning medical negligence and trespass to the person. The case revolves around a dentist, Dr. Mark Phung, who provided excessive and unnecessary dental treatment to Todd Owen Dean, leading to a claim for damages.

Key facts of the case (Dean v Phung)

On 19 December 2001, Todd Dean was injured at work when a piece of timber struck his chin, causing minor injuries to his front teeth.

His employer arranged dental treatment with Dr. Phung, who performed root canal therapy and fitted crowns on all of Dean’s teeth over 53 consultations at a cost of $73,640.

Dean later sued Dr. Phung for negligence and trespass to the person, arguing that the treatment was unnecessary and that Dr. Phung had misrepresented the need for treatment. He acted fraudulently and with the intention of financial gain.

Dr. Phung admitted negligence but claimed Dean had consented to the procedures.

The trial court ruled in favour of Dean, awarding him $1,388,615.20, but denied exemplary damages based on the application of the Civil Liability Act 2002 (NSW).

Dean appealed.

Legal Issues

The primary legal questions in the appeal included:

• Whether the Civil Liability Act 2002 (NSW) applied to the claim?

• Whether the dentist could rely on the defense of consent?

• Whether exemplary damages should be awarded?

Court of Appeal’s Findings in Dean v Phung

The Civil Liability Act (CLA) limits “damages” and precludes exemplary damages unless an act was done with intent to cause injury. The Court found that Section 3B(1)(a) of the CLA applied, which excludes civil liability for intentional acts intended to cause harm. Dr. Phung knew the treatment was unnecessary, meaning the Act did not apply. Thus, higher compensation and exemplary damages became available.

Dean’s consent was deemed invalid because the treatment was misrepresented as necessary when it was not. This amounted to trespass to the person. A patient must be informed about the necessity and purpose of treatment; misleading the patient about medical necessity invalidates consent.

Further, the Court found Dr. Phung’s actions were not only negligent but also reckless. The dentist’s course of conduct was deliberate and for financial gain. Thus, exemplary damages were justified.

Final Orders

Appeal was allowed, setting aside the lower court’s decision.

The Court increased Dean’s damages from $1,388,615.20 to $1,743,000.

Dr. Phung was ordered to pay Dean’s legal costs.

Conclusion

Dean v Phung is a landmark case that holds that a doctor or a medical practitioner must provide accurate information before a patient gives consent to a medical procedure. If he lies about the necessity of a treatment for his personal financial gain, the patient’s consent is not valid, making the procedure an unlawful trespass. Such unnecessary and reckless treatments can lead to huge damages as punishment/severe penalties.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2012/223.html

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Carter v Walker [2010]: A Legal Case Summary

Carter & Anor v Walker & Anor [2010] VSCA 340; 32 VR 1

Supreme Court of Victoria, Court of Appeal
Judgment date: 14 December 2010
Judges: BUCHANAN, ASHLEY and WEINBERG JJA
Area of law: Assault and battery, nervous shock, damages

Background of the Case (Carter v Walker)

The case involves a legal dispute between Donald Walker and Marcus Walker (as Executors of Marcia Walker’s Will) against Graeme Carter (a police officer) and the State of Victoria. The incident occurred on August 14, 1993, when police officers Graeme Carter and Mark Sesin responded to a domestic dispute at Donald Walker’s home. A physical altercation happened between the police, Donald Walker, and his mother, Marcia Walker (who lived next door). Donald and Marcia Walker were injured, and Marcus Walker suffered shock after seeing his mother and learning about his brother’s injuries.

Legal Issues in the Case

The case revolves around several legal concepts, including:

Assault and Battery – Whether the police officers used excessive force and if they acted together (in concert).

Nervous Shock – Whether Marcus Walker had a valid claim for suffering psychological harm due to witnessing the injuries of his family members.

Damages – Whether the compensation awarded to the Walkers was appropriate or excessive.

What Happened on the Night of the Incident?

Police officers Carter and Sesin arrived at Donald Walker’s residence in response to a call about a domestic dispute between him and his girlfriend Ruth Hamm. The police kicked down the door and entered the house. Donald Walker did not physically resist, but the police used force against him. His mother, Marcia Walker, tried to intervene but was pushed to the ground, causing a dislocated shoulder. Donald Walker was beaten with police batons, suffering bruises and fractured ribs. Marcus Walker arrived later, saw his injured mother being taken in an ambulance, and suffered emotional distress.

The Court’s Findings in Carter v Walker

Police Used Excessive Force – The trial judge found that Carter and Sesin assaulted Donald Walker and his mother without justification.

Donald Walker Was Not a Threat – The court rejected the police claim that they were acting in self-defense.

Unlawful Actions Against Marcia Walker – The police had no right to push or injure Marcia Walker.

Marcus Walker Was Entitled to Damages for Nervous Shock – The court recognized that he suffered mental distress due to what he witnessed.

Quote from the case

“……. the question to be determined was whether Carter and Sesin were lawfully justified in acting as they did. Of course, the appellants bore the onus of proof in that regard. The trial judge was not persuaded that they had discharged that onus. His Honour concluded that the police had not responded to an actual or apprehended breach of the peace. They had not acted in defence of Sesin. In any event, they had used excessive force against Donald Walker. No right to self-defence had justified Carter’s actions against Marcia Walker.” (at p. 150)

Damages (Compensation) Awarded

Donald Walker: $1,783,413 for injuries and lost earnings.

Marcus Walker: $918,610 for psychological distress and lost earnings.

Estate of Marcia Walker: $200,000 for injuries suffered before her death.

Appeal by the Police and the State

The police and the State of Victoria appealed the decision, arguing:

The police had the right to enter and restrain Donald Walker.
The force used was not excessive.
The compensation awarded was too high.

Court of Appeal Decision

The court partially reduced the damages but upheld the main ruling that the police acted unlawfully and used excessive force.

Further, the court recognized nervous shock claims can be valid even if the claimant was not physically attacked or did not witness the assault directly. The key factor is whether the injury was foreseeable given the relationship between the victim and the claimant.

In this regard, the case Battista v Cooper (1976) 14 SASR 225 was discussed but ultimately rejected. Battista held that a plaintiff could not recover for nervous shock unless they were physically present and directly witnessed the injury-causing event. However, in the instant case, the Court of Appeal upheld the trial judge’s rejection of Battista. It reinforced the idea that foreseeability is the key standard in nervous shock cases. The judges favoured a foreseeability-based approach, rather than requiring direct physical presence at the moment of injury. Family members who witness the aftermath of a violent event may be able to claim nervous shock damages, even if they did not witness the injury directly. Thus, the nervous shock claim for Marcus Walker was upheld. He could foreseeably suffer nervous shock.

Full case reference:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2010/340.html

Summing up (Carter v Walker)

The case highlights police accountability, the limits of lawful force, and the rights of individuals to claim damages for physical and psychological injuries caused by unlawful police actions.

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Rixon v Star City Pty Ltd [2001]: A Case Summary

Rixon v Star City Pty Ltd [2001] is an Australian case on the issue of trespass to a person. It examined whether the touching of the plaintiff’s shoulder by a casino employee would amount to battery.

Given below are the case details.

Case name & citation:	Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265
Court and jurisdiction:	New South Wales, Court of Appeal (Australia)
Decided on:	28 September 2001
The bench of judges:	Priestley, Sheller and Heydon JJA
Area of law:	Assault, battery and false imprisonment

Facts of the case (Rixon v Star City)

The plaintiff, Mr. Brian Rixon, was an excluded gambler from a casino and was prohibited from entering the casino premises and participating in gambling activities. He had returned to the casino, despite being excluded, to play roulette. Employees at the casino noticed him and recognized him as an excluded person. One of the casino employees approached and placed his hand on the plaintiff’s shoulder and, when he turned around, asked him, “Are you Brian Rixon?” He was escorted to an “interview room,” where he was required to wait until the police came. Mr. Rixon sought damages for assault, battery and false imprisonment.

Legal claims

It was claimed that the casino employee’s actions of placing a hand on the plaintiff’s shoulder and asking if he was Brian Rixon amounted to assault. The same actions were also central to the question as to whether the plaintiff had been the victim of battery.

Mr. Rixon also sued for false imprisonment on the grounds that his detention in the “interview room” until the police arrived amounted to wrongful confinement against his will.

Judgment of the Court in Rixon v Star City Pty Ltd

The case was heard in the New South Wales Court of Appeal after the plaintiff failed at the first instance. The leading judgment was given by Sheller JA (with whom Priestley and Heydon JJ agreed).

Based on the facts of the case, the Court held that the actions of the casino employee did not intend to create an apprehension of imminent harmful conduct in Mr. Rixon’s mind. The question “Are you Brian Rixon?” was not seen as conveying an imminent threat of harm. Hence, the plaintiff had not been a victim of assault.

Furthermore, the Court found that the employee’s placing of his hand on the plaintiff’s shoulder did not constitute battery. It fell within the scope of everyday contact which is generally acceptable in daily life. The employee’s intent was to identify him and seek his attention, not to physically harm or make unlawful contact.

On the false imprisonment allegation, the Court determined that the Casino Control Act of 1992 and its regulations allowed for the detention of individuals like Mr. Rixon, who were unlawfully present in the casino and were excluded gamblers. The Act justified the plaintiff’s detention for a brief amount of time until the arrival of the police. Therefore, there was no false imprisonment as he was not meant to be in the casino in the first place.

Absence of hostility

It might also be important to note here that judges found that anger or a hostile attitude is not necessary to establish battery. For example, a medical procedure carried out without the patient’s consent could be considered a battery.

However, not every contact in day-to-day incidents will be taken to be a battery. The particular physical contact involved in this case was not of a nature that would constitute a battery. Because it fell within the realm of everyday physical contact. It did not involve harmful or offensive physical contact.

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