Harvey v Phillips [1956] HCA 27

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Fullagar JJ. Harvey v Phillips [1956] HCA 27

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 8 Dixon C.J., McTiernan, Williams, Webb and Fullagar JJ.

This is an appeal as of right from an order of the Full Court of the Supreme Court of New South Wales. The order refused an application to set aside a judgment given in pursuance of a compromise of an action made between counsel. The plaintiff in the action is a lady who complains that she sustained serious injury and facial disfigurement through an operation performed by a surgeon. The surgeon afterwards died and she brought the action against the executrix and executor of his will. The operation was performed on 25th June 1952. The writ was issued on 29th May 1953. In the action the plaintiff claimed a large sum by way of damages in respect of the injuries which she attributed to the operation. The plaintiff had suffered from tic douloureux and it was for the purpose of giving her relief from that malady that the operation upon her face was performed. She complains that it resulted in some permanent disfigurement, a paralysis of the left side of the face, a diminution of capacity to hear, to taste and to smell and in other ill-effects.

A declaration was filed on the part of the plaintiff containing three counts. The first count alleged negligence in the performance of the operation. The second count was based upon an alleged contract to perform a particular operation and an allegation that without the plaintiff's knowledge the deceased surgeon performed another and different operation causing the damage complained of. The third count was framed as a count for assault and was based upon an allegation that the surgeon operated upon the plaintiff in a manner and to an extent which was not authorized and that he did so without her knowledge and consent.