Dean v Phung [2012] NSWCA 223

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dean v Phung [2012] NSWCA 223 Hearing dates: 18 May 2012 Decision date: 25 July 2012 Before: Beazley JA at [1]; Basten JA at [2]; Macfarlan JA at [87] Decision: (1) Allow the appeal and set aside the order made by the trial judge on 30 June 2011 giving judgment for the plaintiff in the sum of $1,388,615.20. (2) In place of the judgment given below, give judgment for the plaintiff against the defendant in the sum of $1,743,000. (3) Order the respondent to pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) in respect of the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: 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