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 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 Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 11A, 14, 16, 17, 18, 21; Pt 2 Crimes Act 1900 (NSW), s 61HA Evidence Act 1995 (NSW), s 140 Cases Cited: Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331 Appleton v Garrett [1997] 8 Med LR 75 Barker v The Queen [1983] HCA 18; 153 CLR 338 Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; (2000) 3 HKCFAR 288 Chatteron v Gerson [1981] QB 432 D v S (1981) 93 LSJS (SA) 405 Douglas v Hello! Ltd (No 3) [2005] 3 WLR 881 (EWCA) Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 Hunter Area Health Service v Marchlewski [2000] NSWCA 294; 51 NSWLR 268 Jones v Dunkel [1959] HCA 8; 101 CLR 298 The King v Williams [1923] 1 KB 340 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 Manly Council v Byrne [2004] NSWCA 123 McHale v Watson [1964] HCA 64; 111 CLR 384 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249 Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215 Pollack v Volpato [1973] 1 NSWLR 653 R v Harms [1944] 2 DLR 61 R v Mobilio [1991] 1 VR 339 R v Tabassum [2000] EWCA Crim 90; [2000] Cr App R 328 Regina v Richardson [1999] QB 444 Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1 Reibl v Hughes (1978) 89 DLR (3d) 112 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Secretary, Department of Health and Community Services v JWB (Marion's Case) [1992] HCA 15; 175 CLR 218 Schloendorff v Society of New York Hospital 211 NY 125 Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Texts Cited: Consent in the Criminal Law (1995) (Consultation Paper No 139), par 6.27 RP Balkin and JLR Davis, Law of Torts (LexisNexis, 4th ed, 2009) at [3.7] C Gallavin, "Fraud Vitiating Consent to Sexual Activity: Further Confusion in the Making" (2008) 23 NZUL Rev 87 D Mendelson, The New Law of Torts (OUP, 2nd ed, 2010) at 241-242 M Somerville, "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740 M Wilson, "Assault in medical law: Revisiting the boundaries of informed consent to medical treatment in South Africa" (2009) 16 JLM 862 The Hon PW Young "Is there any law of consent with respect to assault?" (2011) 85 ALJ 23 Category: Principal judgment Parties: Todd Owen Dean (Appellant) Mark Phung (Respondent) Representation: Counsel: D J Hooke SC/ D R J Toomey (Appellant) B Shields (Respondent) Solicitors: Beilby Poulden Costello (Appellant) Meridian Lawyers (Respondent) File Number(s): CA 2008/289693 Decision under appeal Jurisdiction: 9111 Citation: Dean v Phung [2011] NSWSC 653 Date of Decision: 2011-06-30 00:00:00 Before: Hislop J File Number(s): SC 2008/289693 HEADNOTE [This headnote is not to be read as part of the judgment] On 19 December 2001 the appellant was injured in the course of his employment when a piece of timber struck him on the chin causing minor injuries to his front teeth. His employer arranged for him to see the respondent, a dental surgeon. Over a period of a little more than 12 months, the dentist carried out root canal therapy and fitted crowns on all of the appellant's teeth. The treatment was undertaken during 53 consultations at a cost of $73,640. The appellant commenced proceedings in the Common Law Division against the dentist for negligence and trespass to the person. The appellant alleged that the treatment was unnecessary and ineffective, and that the dentist must have known that to be so. The appellant sought exemplary damages. The dentist admitted liability in negligence but, in relation to trespass to the person, relied on a defence of consent. The Civil Liability Act 2002 (NSW) did not apply to or in respect of civil liability of a person "in respect of an intentional act that is done by the person with intent to cause injury": s 3B. If the Civil Liability Act applied to the claim, the damages available to the appellant would be reduced and exemplary damages would be unavailable. On 30 June 2011 Hislop J found for the appellant in the sum $1,388,615.20. However, his Honour found that the Civil Liability Act applied to the claim and that exemplary damages were therefore unavailable. The appellant appealed to this Court. The issues for determination on appeal were: (i) whether the Civil Liability Act applied to the appellant's claim, (ii) whether a defence of consent was available to the dentist, and (iii) whether the appellant was entitled to exemplary damages. The Court held, allowing the appeal: In relation to (i), (per Basten JA, Beazley and Macfarlan JJA agreeing) 1. Section 3B of Civil Liability Act was satisfied if the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary: [30] 2. The dentist probably did not believe at the time that he carried out the treatment that it was necessary given the injury suffered by the appellant: [47] In relation to (ii), (per Basten JA, Beazley JA agreeing) 3. A practitioner's honest and reasonable belief that the patient has consented is not a defence to a claim in tort. The absence of consent may flow from the incapacity of the patient, innocent misrepresentation or maladministration by the practitioner or hospital, or fraud on the part of the practitioner or other person responsible for obtaining consent: [58] Chatterton v Gerson [1981] QB 432; Appleton v Garrett [1997] 8 Med LR 75 referred to; Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249; Schloendorff v Society of New York Hospital 211 NY 125 (1914); Secretary, Department of Health and Community Services v JWB (Marion's Case) [1992] HCA 15; 175 CLR 218 applied. 4. The appellant did not consent to the proposed treatment, because it was not in fact treatment necessary for his condition because it was not capable of constituting a therapeutic response to the patient's condition. As a result, the treatment constituted a trespass to the person: [65]-[66] Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1; Reibl v Hughes (1978) 89 DLR (3d) 112; Chatterton v Gerson [1981] QB 432; Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493; D v S (1981) 93 LSJS (SA) 405; Rogers v Whitaker [1992] HCA 58; 175 CLR 479; The King v Williams [1923] 1 KB 340; Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; (2000) 3 HKCFAR 288; Regina v Richardson [1999] QB 444; Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249; R v Tabassum [2000] EWCA Crim 90; [2000] Cr App R 328 discussed. (per Macfarlan JA) 5. Consent to the penetration of one's body for the purpose of medical treatment is not consent for other purposes such as sexual gratification or financial gain. The nature and character of the act of penetration may vary with the purpose for which it is performed: [93] Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249; R v Harms [1944] 2 DLR 61; Barker v The Queen [1983] HCA 18; 153 CLR 338 discussed; R v Mobilio [1991] 1 VR 339 distinguished. 6. If the practitioner's state of mind is to be ignored negligent advice that treatment is required will result in a trespass despite the practitioner's bona fide belief in the necessity for treatment. This would avoid the limitations on recovery of damages imposed by the Civil Liability Act and expose the practitioner to criminal charges for assault: [95] (per Basten JA, Beazley and Macfarlan JJA agreeing) 7. The dentist was at least reckless as to whether the treatment proposed was either appropriate or necessary for the purpose of addressing the appellant's discomfort: [47], [67] In relation to (iii), (per Basten JA, Beazley and Macfarlan JJA agreeing) 8. An award of exemplary damages should be made. The course of conduct adopted by the dentist was carefully planned and carried into execution over a period in excess of one year. The dentist remained unjustly enriched to the extent of the $73,640 in fees received for a course of conduct which he admitted was not necessary. No evidence was called as to the dentist's capacity to pay exemplary damages: [80]-[81] Pollack v Volpato [1973] 1 NSWLR 653 applied. Judgment 1BEAZLEY JA: I have had the advantage of reading in draft the reasons of Basten JA and the reasons of Macfarlan JA. I agree with the reasons and orders of Basten JA. 2BASTEN JA: On 19 December 2001, Todd Dean (the appellant) was injured whilst feeding small branches lopped from a tree into a chipper. A piece of timber struck him on the chin causing minor injuries to his front teeth. His teeth became sensitive and, as he was in pain, his employer arranged for him to see Dr Mark Phung, a dental surgeon. Over a period of a little more than 12 months, Dr Phung ("the dentist") carried out root canal therapy and fitted crowns on all of the appellant's teeth. The work was undertaken during 53 consultations at a cost of $73,640. The cost was initially borne by the workers' compensation insurer for the appellant's employer, Advanced Arbor Services Pty Ltd. The employer has since recovered those payments from Dr Phung: Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331. (An appeal was dismissed by this Court: Phung v Advanced Arbor Services Pty Ltd [2010] NSWCA 215.) 3In proceedings between the appellant and the dentist, the dentist conceded liability but asserted that damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW). The trial judge, Hislop J, accepted that submission: Dean v Phung [2011] NSWSC 653. He awarded the plaintiff approximately $1.4 million. The appeal is limited to a challenge to the application of the Civil Liability Act. In the event that damages are not to be assessed in accordance with the Civil Liability Act, the appellant says he is entitled to an increased award for non-economic loss, interest thereon and an award of exemplary damages, being amounts which are not available under the Act. 4For the reasons which follow, the appeal should be allowed and the damages, assessed in accordance with general law principles, increased. Issues on appeal 5It is necessary to identify the issues in dispute more precisely. The primary issue, as identified in the amended notice of appeal, involved the application of the Civil Liability Act with respect to the quantification of the appellant's loss. The relevant provisions are contained in Part 2, headed "Personal injury damages". Part 2 applies "to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B": s 11A. Section 3B relevantly provides: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act ...." 6There are exceptions provided within paragraph (a), but none are of present relevance. Those aspects of Part 2 which, if it is applicable, are of relevance are s 14 (which applies a discount rate of 5% in respect of future economic loss), s 16 (which places a cap on non-economic loss), s 18(1)(a) (which precludes payment of interest on damages for non-economic loss) and s 21 (which precludes an award of exemplary damages where the act or omission that caused the injury was negligence). 7On the assumption that the appellant succeeds on the primary issue, further calculations are required. Pursuant to the requirements of the Civil Liability Act, the trial judge assessed non-economic loss at 55% of a most extreme case, which resulted in an award of $275,500. Under the general law, the appellant asserted that he would be entitled to an award of $450,000, whilst the dentist contended for an award of $300,000. In respect of exemplary damages, the appellant claimed an amount of $200,000, whilst the dentist said that such damages should not, in any event, be awarded. The calculations in respect of other variations were agreed. 8It was not immediately clear whether the appeal required identification of the cause of action upon which the appellant was entitled to succeed. The trial judge had noted that the dentist admitted liability in negligence but denied liability for trespass to the person: at [10]. Although he did not expressly determine the cause of action on which the appellant succeeded, he stated, in dealing with the operation of s 3B of the Civil Liability Act, that he was not satisfied that dishonesty or fraud had been established, as opposed to simple incompetence: at [29]. It may be inferred, therefore, that he upheld a claim in negligence only and rejected liability for trespass to the person. 9On one view, the relevant cause of action does not need to be identified. Part 2 of the Civil Liability Act is not restricted in its application to claims in negligence and s 3B(1)(a) does not, in terms, identify an excluded cause of action. On the other hand, if general law principles apply, it might be necessary to consider whether exemplary damages are available for a claim which arises only in negligence: see eg Hunter Area Health Service v Marchlewski [2000] NSWCA 294; 51 NSWLR 268. Following discussion at the hearing of the appeal, counsel for the appellant accepted that he needed to establish liability for trespass to the person, although his preferred position was that the cause of action in trespass and the satisfaction of s 3B (excluding the operation of the Civil Liability Act) would be achieved by answering the same questions. 10Although the result may be the same in respect of each question, the questions themselves differ. Thus, in respect of a cause of action for trespass to the person arising from medical or dental treatment, liability will turn on the consent given by the patient (absent an emergency). The operation of s 3B(1)(a), on the other hand, focuses solely upon the intention of the defendant practitioner. Even where the defendant's conduct may be said to vitiate an apparent consent, the issues are not identical in each case and there may be a real question as to the party on whom the burden of proof lies. Because the statutory scheme is not identified by reference to a particular cause of action, it is convenient to address the operation of s 3B and then the cause of action. It is convenient first to explain how the case was presented to the trial judge. Case at trial 11The critical findings sought by the appellant, as the plaintiff at trial, were (a) that the 'treatment' was entirely unnecessary and ineffective to address the plaintiff's problems with his teeth and (b) that the dentist must have known that to be so when he embarked on the course of 'treatment'. Advice that the treatment was necessary, in the sense that it would be effective, was said to be fraudulent. It followed that the plaintiff's consent to the treatment was vitiated by a deception or fraud practised on him by the dentist. Accordingly, the dentist was liable for trespass to the person or battery in treating the plaintiff without valid consent. 12Key paragraphs in the appellant's amended statement of claim were as follows: "9. The treatment was provided to the plaintiff and the plaintiff consented to it on the basis of professional advice furnished to him by the defendant. 10. On each and every occasion that the defendant performed any part of the treatment upon the plaintiff, the plaintiff's consent to the treatment was obtained by the defendant by fraud in that: (a) By the defendant's own admission, and as a matter of fact, none of the treatment was reasonably necessary. (b) The defendant misrepresented to the plaintiff, by the professional advice referred to in paragraph 9 above, that all of the treatment was reasonably necessary. (c) The defendant knew, at the time he made the misrepresentations as to the treatment being reasonably necessary (by the provision of the professional advice referred to in paragraph 9 above), that those representations were untrue. (d) The defendant made each of the misrepresentations for the purpose of obtaining a financial benefit for himself. 10A. The plaintiff's consent to the treatment was vitiated by reason of the defendant having obtained it by fraud as aforesaid. ... 12. Further and in the alternative, the advice and treatment provided to the plaintiff by the defendant were provided in breach of the defendant's duty of care to the plaintiff. Particulars of breach of duty of care ... (c) Not being competent to provide the treatment. ... (e) Providing dental and related treatment which was not required. (f) Advising the plaintiff to undergo treatment which he did not require. ... 13. The treatment was performed without the plaintiff giving his valid consent and was an assault and battery of the plaintiff." 13The statement of claim, so amended, was filed on 15 October 2010. On 21 October 2010, the dentist filed a defence which contained simple denials in respect of paragraphs 10, 10A, 11, 12 (as set out above) and 13. However, at the commencement of the trial, counsel for the dentist qualified his position, so as to admit paragraphs 9 and particulars (a) and (b) in paragraph 10. Consistently, he admitted the particulars (c), (e) and (f) to paragraph 11. He denied that the inference of fraud was available, denied particulars (c) and (d) in paragraph 10 and denied paragraphs 10A and 13: Tcpt, 07/02/11, pp 16-17. 14The allegation of fraud was relied on for the purpose of vitiating the apparent consent given by the appellant to the treatment. Absent a favourable finding in that respect, it was assumed that the tort of trespass to the person could not be made out. That is an assumption which will be revisited below. However, it may be noted that, at least in final submissions, if not earlier in the trial, the appellant contended that recklessness or even carelessness as to the truth of the representations would be sufficient to constitute fraud in this regard. 15On the appellant's case, there were two possible purposes motivating the dentist's conduct. The first was a therapeutic purpose, namely the provision of services which were necessary and appropriate for the relief of the condition suffered. The alternative purpose, based on the concession that the services were unnecessary and inappropriate, was solely to provide income to the dentist, his bills not being paid by the appellant, but by the workers' compensation insurer. Assuming there were not degrees of satisfaction involved, such a finding would have removed the therapeutic purpose, leaving open the conclusion that the dentist's sole intention was obtaining a financial benefit for himself, in which case it would be appropriate to conclude that he undertook the intentional acts of dental surgery with intent to cause injury. The missing step in the admissions involved the beliefs of the dentist at the time he gave the advice and undertook the dental procedures. 16The appellant sought a finding as to the absence of any relevant belief in a therapeutic purpose based on the evidence of three experts, being Dr Andrew Howe, a consultant dentist, Dr Neil Peppitt, a specialist prosthodontist, and Dr G Challoner, a dental surgeon. 17Dr Howe provided five reports. In his fourth report, dated 5 July 2007, he made three points. The first was that, without access to the radiographs and "study models" used by Dr Phung in the course of his treatment, it was not possible to reach a firm conclusion as to the appropriate treatment for the damaged teeth. Nevertheless, he was able to reach two particular findings. The first concerned a report prepared by Dr Phung for the workers' compensation insurer dated 8 April 2003. Dr Howe noted that Dr Phung's diagnosis, recorded in that report, that "pulp necrosis had occurred irreversibly" coincided with assertions of extreme sensitivity to touch and temperature. Dr Howe noted at Report, p 9: "Necrosis in dental pulps is always irreversible as it means nerve death. Dr Phung records the teeth as responding to hot and cold and touch, which would suggest perhaps pulpitis, which may be reversible or irreversible." 18Further, Dr Howe was able to conclude (p 11): "All of Dr Phung's treatment for Mr Dean would be described as inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform. The treatment was obviously unnecessary and improper and it is the nature of a gratuitous aggravation of any existing injury." 19Subsequently, Dr Howe obtained access to six "study models" and 60 "original radiographs". His final report provided detailed support for his earlier criticisms. 20In his first report, dated 7 January 2008, Dr Peppitt stated (p 3): "I find it difficult to understand how Dr Phung could proceed to remove every nerve of every tooth in the patient's head without wishing to confirm his diagnosis and treatment regime with a special endodontist or someone experienced in managing facial pain. In 25 years as a Specialist Prosthodontist with a subspeciality of facial pain management I have never experienced or read of in the literature a treatment plan of this nature. All the root canal therapies performed by Dr Phung were inadequate and needed to be redone. ... [at p 5] - In my opinion, based on the history and radiographs available to me, sensitive teeth should have been treated with sedative dressings and time. ... Fractures in the teeth probably should have been repaired using resin restorations where indicated. If pain persisted referral to a specialist endodontist was warranted. I do not believe that any ordinary skilled dentist in 2002 would have performed the irreversible treatment carried out by Dr Phung or have perceived such a treatment plan was warranted." 21After receiving further material, Dr Peppitt stated in a report of 28 July 2008 (at pp 3-4): "This OPG [orthopantomogram] supports my initial opinion that Mr Dean was in excellent dental health prior to the accident and subsequent treatment by Dr Phung. Apart from the four small spot fillings done by Dr Phung the OPG shows that Mr Dean had had no previous dental fillings of any note. Periodontal bone support was excellent and the temporomandibular joints were of normal contour. All in all, Mr Dean's mouth was very healthy and there was nothing to suggest the need for the amount of treatment subsequently provided by Dr Phung. I have reproduced photographs of both this early OPG and the one taken after re-treatment by Dr Alan Nerwich of all the root canal therapies originally performed by Dr Phung. The stark contrast between these two OPGs is evident. I am still at a loss to understand how a young man in excellent oral health ... could have needed the extensive amount of dental treatment shown in the second OPG.... When one considers the initial minor chips ... was the only tooth damage sustained in the accident it is hard to imagine how the treatment ... is justified." 22The unchallenged expert opinion suggested only one of two possible inferences: first, the dentist was so incompetent that he did not realise that the course of treatment he was proposing and then undertaking was without clinical justification or, in the alternative, he either knew there was no clinical justification or did not care whether there was or not. 23There was some support for the former possibility (incompetence) to be found in the conclusion that virtually all of the work undertaken needed to be redone. In his report of 12 August 2008 (p 6) Dr Howe noted that the dentist "had fractured instruments in two teeth and has made no attempt to retrieve the fractured instrument". On the other hand, the experts made separate and independent criticisms of the dentist's examination, diagnoses, treatment plan and the conduct of his treatments. As explained by the third expert, Dr G Challoner: "I cannot accept that all 28 teeth were damaged in the incident. The history of the accident told to me by Mr Dean could not possibly have damaged 28 teeth! The skin on his chin was not broken by the accident, but was grazed. In my 30 years of clinical dentistry, I have never heard or seen a case where more than half of the teeth have been fractured. Where I have examined such traumatic injuries, they have been associated with massive soft tissue damage. The impact to shatter 28 teeth would be enormous and the impact would have to have been applied evenly to the entire jaw to impact each tooth. It is totally inconceivable and inconsistent that a patient with nerve damage and fractures to 28 teeth could have washed their mouth out and carry on working and not consult a dentist until seven weeks after the event (and have a holiday in between). In my mind, he may have suffered injuries to four to six teeth at most." 24The appellant submitted that the more plausible inference was that the dentist knew there was no clinical justification for the course on which he embarked or, at best, was reckless as to whether it would have any beneficial effect on the appellant. His primary, if not his sole, purpose must have been his own financial improvement. 25The appellant further relied upon the availability of the dentist to give an explanation of his conduct, to state his belief that the treatment was justified and to identify the basis for it. In the absence of any such evidence, the Court was entitled both to assume that nothing he could say would provide a basis for inferring a clinical justification and that, in consequence, the Court was entitled more readily to draw the inference that he had no bona fide belief in a clinical justification, being an inference fairly to be drawn from the expert evidence. Whether or not these are properly characterised as two different forms of inference permitted by Jones v Dunkel [1959] HCA 8; 101 CLR 298, as explained by Campbell J in Manly Council v Byrne [2004] NSWCA 123 at [51], both were said to be available in the present case. Application of s 3B of Civil Liability Act (a) construction 26The language of s 3B(1)(a), set out at [5] above, is curiously imprecise. The references to "sexual assault" and to "other sexual misconduct" have no direct relevance, and it was not contended by either party that they cast light on the critical terminology, namely "an intentional act that is done by the person with intent to cause injury". Nevertheless, the language of paragraph (a) read as a whole is not suggestive of concepts having some specific legal connotation, but is rather language which encompassed a broad policy objective. Thus, subject to the limited express exceptions, the purpose was to leave those who committed intentional torts to the operation of the general law. 27Many acts which give rise to tortious liability, including driving a car, are properly described as "intentional". What is unforeseen or unintended is the consequence of driving in a particular manner. A foreseeable risk need not be intended; indeed a driver may well take steps to avoid the risk of an accident materialising, once it is perceived. It is not necessary for present purposes to consider the extent to which a particular outcome may be described as an inevitable consequence, or a "calculated" consequence, or as "a natural and probable result" of the intentional act: see Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 at [76]-[81]. 28The application of the phrase "intent to cause injury" arose in State of New South Wales v Ibbett [2005] NSWCA 445 (reported in part at 65 NSWLR 168) which concerned the operation of s 3B(1)(a) in respect of conduct of a police officer which put an elderly woman under an apprehension of physical violence. Spigelman CJ concluded that, because the officer acted with an intention to cause an apprehension of physical violence, by pointing his gun at the house owner and telling her to "open the bloody door and let my mate in", s 3B(1)(a) was engaged. The Chief Justice did not consider whether the absence of a lawful justification for the conduct was necessary for the engagement of the section. Ipp JA agreed with the Chief Justice at [127]-[130]. I referred to the question with respect to the operation of s 3B(1)(a) at [217]-[219]. I did not consider it necessary to rely upon s 3B: at [220]. I noted that there had been limited attention paid in the course of submissions to the language of paragraph (a), but that after the hearing the Court's attention had been directed to Douglas v Hello! Ltd (No 3) [2005] 3 WLR 881 (EWCA). A brief description of the case and the issue raised was set out at [219]. As the English Court in Douglas noted, "there are a number of contenders for the test of the state of mind that amounts to an 'intention to injure' in the context of the tort that we have described as 'unlawful interference'." 29No reference was made to Ibbett in the appellant's submissions nor to this line of authority. Accordingly, it is not appropriate to consider it further in the present context. 30A medical procedure will generally be an intentional act: the critical issue is whether, in particular circumstances, it was done "with intent to cause injury". In ordinary language, an injury is a harmful consequence. Something which is done with a therapeutic intent, that is, to prevent, remove or ameliorate a disability or pathological condition, would not ordinarily be so described. Indeed, even non-therapeutic treatment, such as cosmetic surgery, would not generally be so described: compare Secretary, Department of Health and Community Services v JWB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 269 (Brennan J). The somewhat controversial distinction between therapeutic and non-therapeutic purposes may be disregarded. The appellant sought assistance from the dentist in relation to some minor chipping of his front teeth, together with a level of sensitivity and pain, apparently resulting from injury to the teeth, such symptoms not having preceded the blow to his jaw. There was no suggestion the purpose of the treatment was cosmetic. So far as the operation of s 3B is concerned, it would have been sufficient for the appellant's purposes to establish that the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary. (b) findings at trial 31At trial, the application of s 3B was approached on a different basis, or at least with a different emphasis. As explained by the trial judge at [22]: "The issue, as debated between the parties, was, in essence, whether the defendant performed the procedures on the plaintiff in the genuine, but erroneous, belief held at the time, that the procedures were reasonably necessary to treat the plaintiff's condition or whether the defendant deliberately performed damaging procedures on healthy teeth solely for financial gain and fraudulently represented to the plaintiff that the procedures were reasonably necessary in order to obtain his consent to them. If the latter, the plaintiff's consent was vitiated by the defendant's fraud and the requirements of s 3B were met." 32Further, in summarising the dentist's position, he noted the critical aspect of the temporal element, namely that "although he admitted he now accepted the procedures performed by him were not reasonably necessary, it was not established that at the time of performing the procedures he did not believe the procedures were reasonably necessary or that he intended to cause injury to the plaintiff": at [25]. 33The last statement identifies the key issue in terms similar to that identified above, so long as the disjunctive "or" is understood as "and thus". Although the result may be the same in particular circumstances, an intention to cause injury may not involve the same elements as "fraud" or fraudulently representing a point of view. At least in theory, the difference could be significant. Thus, a practitioner might dishonestly indicate an opinion that a certain form of treatment would have particular beneficial effects and be disbelieved by the patient, who nevertheless consented to the treatment. Similarly, a patient might consent in circumstances where the practitioner had an entirely improper purpose, unbeknownst to the patient. At least in the present case, the relevant finding of fact was as to the belief and purpose of the dentist over the period during which he carried out the treatment; both his statements to the appellant and the appellant's beliefs are peripheral to that consideration. 34Having identified the defendant's contention at [25] the trial judge then listed a number of matters said to be "relevant to the defendant's situation" at [26]. The appellant treated these matters as factors tending against a conclusion that the dentist had an improper intention or purpose. In part that was so, although in part the matters identified at [26]-[28] merely involved statements of principle. 35First, there was an assertion that the appellant was seeking to establish fraud on the part of the dentist. His Honour held, on the basis of a concession, that the appellant had the onus of proof and that such a finding "should not be lightly made": at [28]. The latter finding was supported by reference to s 140 of the Evidence Act 1995 (NSW) and statements of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 170-171 (Mason CJ, Brennan, Deane and Gaudron JJ). That principle may be accepted. 36Secondly, the trial judge accurately identified the principle in Jones v Dunkel, noting that the failure of the dentist to give evidence could not be employed "to fill gaps in the evidence, or to convert conjecture and suspicion into inference": at [26(b)]. Again, the principle was undeniably correct, although its application in the present case was in dispute. 37Thirdly, the primary judge dismissed as "distinguishable" a judgment of Dyson J, then sitting in the Queen's Bench Division, in Appleton v Garrett [1997] 8 Med LR 75. Mr Appleton was sued in respect of over-servicing by approximately 80 of his former patients. He did not seek to explain or defend his conduct and, in order to establish a right to aggravated damages, the plaintiffs (of whom there were eight) sought to establish that the cause of action was in trespass, being an assault and battery and not mere negligence. Dyson J stated (at 77): "I am quite satisfied that the failure to inform in these eight cases was not mere negligence and that Mr Garrett withheld information deliberately and in bad faith. The scale of the unnecessary treatment was so great that it must have been obvious to him that it was indeed unnecessary." 38Dyson J further drew an inference from the failure of the defendant to contradict expert evidence and concluded "that none of the plaintiffs consent at any rate to the treatment of those teeth that required no treatment, and that at least in relation to those teeth the tort of trespass to the person has been made out". 39The trial judge distinguished Appleton on the basis that it involved a dentist embarking upon "a large scale course of fraudulent conduct", whereas in the present case there was no suggestion that the defendant had provided unnecessary treatment to any other patient: at [26(e)]. 40The appellant took issue with the finding that Appleton was "not a binding decision and is distinguishable". It may be that such language is properly open to criticism, but the criticism is immaterial. Appleton was an example of principles being applied and an inference drawn in particular circumstances. The trial judge in the present case did not say that the principles were inapplicable, and whether or not the same inference would be drawn would depend upon the facts of the present case and not those in Appleton. 41Fourthly, the trial judge noted that the dentist, in his report of 19 July 2002 to the insurer, had expressed the opinion that his treatment was necessary in order to save the teeth: at [26(a)]. That statement can only have been intended as a reason to doubt that the dentist lacked any belief in the propriety of his treatment at the time it was provided. It is convenient to consider that issue in conjunction with the fifth point raised by the appellant, namely the proposition that the involvement of a workers' compensation insurer would create a risk of fraud being discovered, and thus lessen the likelihood that the dentist had deliberately undertaken unnecessary work: at [26(c)]. There were in fact two ways of viewing the report. On the one hand, as the appellant contended, the report was prepared and sent in furtherance of the very fraud which it was said to tell against. In other words, if the dentist were prepared to mislead his patient as to the need for the treatment, for payment to be forthcoming he also needed to mislead the insurer. Furthermore, the existence of a source of funds for treatment which was clearly beyond any possible financial capacity of the patient was an essential part of the suggested intention of carrying out the work purely for financial gain. Although the existence of an insurer may have given rise to some risk of discovery, the dentist's course of "treatment", as the appellant noted, had been completed more than three years before the insurance payments were terminated. 42A countervailing factor may be found in the fact that, as noted by Dr Howe and referred to above at [17], the report was internally inconsistent in asserting irreversible pulp necrosis and responsiveness of the teeth to touch and temperature. The inclusion of such material in the report may have exacerbated the risk of discovery; importantly, it may also have supported a finding of incompetence rather than fraud. The mere existence of the report and the involvement of the insurer were largely neutral factors in this assessment. 43Sixthly, the trial judge said that Dr Howe's expert opinion, being that of a specialist, did not "establish" the dentist's state of mind at the time of the treatment: at [26(d)]. In one sense, that statement was unexceptionable. However, there appear to have been two inferences which were not fully articulated. First, if it were implied that Dr Howe was giving opinions based on special expertise which should not be expected of a dentist in general practice, there was no basis for such an inference. Dr Howe expressed opinions as to the dentist's conduct in terms of a "reputable dental practitioner", for example in his report of 5 July 2007 at p 11. He was not cross-examined to suggest that he was applying some different standard: indeed, he was not cross-examined at all. Secondly, while his opinion did not of course "establish" the state of mind of the dentist at the relevant time, an opinion that no reputable dentist could hold a particular belief in identified circumstances gives a solid basis for drawing an inference as to the dentist's actual state of mind. 44Seventhly, following on from the last complaint, the appellant submitted that the principle in Jones v Dunkel was not being called in aid to fill a gap in the evidence: there was a solid basis for an inference adverse to the dentist, founded on the opinions expressed by the experts. It was that inference which could be more comfortably drawn as a consequence of the failures of the dentist to claim that he held a bona fide belief in the reasonableness of the treatment and to explain how he came to the belief that the treatment, universally disparaged by the experts, was reasonably necessary. As the appellant contended, the inference drawn by Dyson J in Appleton from a large number of patients and treatments was readily available in the present case, based upon an extended exercise involving 53 consultations over more than 12 months. (c) findings on appeal 45A trial judge generally has an advantage in drawing inferences from the evidence of witnesses called at trial. In the present case, there was little by way of advantage: only the appellant was called to give evidence and his evidence, understandably, appears to have played little part, if any, in the conclusions reached by the trial judge with respect to the application of the Civil Liability Act. 46Beyond stating the matters set out above, the reasoning of the trial judge does not provide any persuasive basis for the conclusion reached. He stated at [29]: "The defendant's treatment was admittedly incompetent. However, in my opinion, it has not been established, on the balance of probability, that the defendant's involvement was dishonest and fraudulent rather than simply incompetent. In my opinion the onus has not been discharged. I find that it has not been established that s 3B(1)(a) has application. Accordingly, the damages are to be assessed under the Act. No claim for exemplary damages is available." 47Accepting, it being unnecessary to decide given the concession by the appellant at trial, that the appellant bore the onus of establishing that the Civil Liability Act did not apply, the preferable inference is that the dentist probably did not believe at the time that he carried out the treatment that it was necessary given the injury suffered by the appellant. This inference is supported by the following factors: (a) the blow to the appellant's chin resulted in limited damage to a small number of otherwise healthy teeth; (b) the proper treatment identified by the experts did not involve root canal therapy, metal bonded crowns on all teeth or bridging between teeth; (c) none of the experts could envisage circumstances in which a reasonably competent doctor would believe such irreversible treatment to be warranted; (d) although the execution of the dental work was incompetent and parts of the report to the insurer were internally incoherent, there was no clear evidence favouring the view that the dentist was an incompetent diagnostician; (e) in circumstances where there was a clear inference that dental services were provided for the financial benefit of the dentist rather than any appropriate treatment of the appellant, the failure of the dentist to give evidence was a matter available to confirm that inference, and (f) although the conclusion involved an element of dishonesty on the part of the dentist, the strength of the inference available on the evidence was sufficient to allow such a conclusion to be reached on the balance of probabilities. Cause of action in trespass 48In the therapeutic context, the defence to the tort of trespass to the person is consent. Where there has been an ostensible consent, which is later challenged, the convenient starting point is to consider the validity of the consent, rather than asking whether it has been obtained by fraud. In principle, consent may be legally ineffective as a result of an innocent mistake or carelessness on the part of the person obtaining it. Further the nature of the consent required is necessary to inform the concept of fraud in this context. 49The modern law with respect to the concept of consent to medical treatment may be traced to virtually contemporaneous developments in Canada, England and in this country. Laskin CJC in the Supreme Court of Canada held that a failure to disclose risks attendant on surgery or other medical treatment does not invalidate the genuineness of the consent, going to negligence rather than battery, "unless there has been misrepresentation or fraud to secure consent to the treatment": Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1 at [13]. A similar approach, adopted by the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112, was followed by Bristow J in Chatteron v Gerson [1981] QB 432. When Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 was decided by the English Court of Appeal, Reibl had reached the Canadian Supreme Court and was followed. Dunn LJ adopted the language of Chatterton that "'once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real' so that it afford a defence to a battery": at 515D. The reasoning of Bristow J in Chatterton appears to have been first followed in this country by Matheson J in the Supreme Court of South Australia in D v S (1981) 93 LSJS (SA) 405. 50This line of authority has been approved by the High Court in Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 490, stating that "the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed". Reference was made to the judgment of Bristow J in Chatterton at 443. Commonly, as in Rogers and in Chatterton, the validity of the consent has turned on the adequacy of the explanation given to the patient for the proposed procedure. Both cases were concerned with inadequate disclosures of risks attendant on treatment which were held not to vitiate the consent. However, as Bristow J noted in Chatterton, an action would lie in trespass if, by some accident, the wrong treatment was carried out. He gave an example of a boy admitted to hospital for tonsillectomy who was, through administrative error, circumcised. 51Somewhat different considerations operate in relation to the crime of assault and battery, although it would be a startling result if the medical procedure which was properly characterised as criminal did not give rise to a civil cause of action. In an unlikely case of asserted medical treatment, a man was convicted of rape in respect of sexual intercourse with a 16 year old girl to whom he was giving singing and voice production lessons: The King v Williams [1923] 1 KB 340. The girl's consent was found to have been procured by fraud. The nature of the act to which she consented was, objectively, not medical treatment at all (and he was not a doctor). Nevertheless, cases where doctors have purported to undertake medical procedures for their own sexual or other gratification have also given rise to criminal convictions on the basis that the nature of the act could properly be characterised according to the doctor's motivation or purpose. 52A number of cases subsequent to Williams have been analysed by the Hong Kong Court of Final Appeal in Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; (2000) 3 HKCFAR 288. The cases, involving sexual intercourse or indecent assault, broadly fall into two categories: first, there are cases of sexual activity in respect of which the victim was persuaded that the act involved medical treatment and, secondly, there are cases of conduct which could constitute medical treatment, but which were carried out for an ulterior purpose, usually the sexual gratification of the accused. 53Not all cases, however, have involved sexual assaults. Regina v Richardson [1999] QB 444 involved a dental practitioner who had been convicted on six counts of assault occasioning actual bodily harm, for carrying on practice as a dentist after she had been suspended. The Court of Appeal (Otton LJ, Turner and Dyson JJ) reversed the convictions. After noting that no distinction was to be drawn between sexual and non-sexual assaults, the Court continued at 450: "The common law is not concerned with the question whether the mistaken consent has been induced by fraud on the part of the accused or has been self-induced. It is the nature of the mistake that is relevant, and not the reason why the mistake has been made. In summary, either there is consent to actions on the part of a person in the mistaken belief that he was other than he truly is, in which case it is assault or, short of this, there is no assault." 54The Court affirmed the general law principle that consent was nullified by deception as to the nature of the act or the identity of the person doing it. The Court declined to extend the latter concept "to cover the qualifications or attributes of the dentist on the basis that the patients consented to treatment by a qualified dentist and not a suspended one": at 450. The Court also rejected concepts derived from the civil law noting that "the criminal and the civil law do not run along the same track". 55In adopting this approach, the Court of Appeal followed the reasoning of the High Court in Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249, a case in which the accused was charged with rape on the basis that the woman's consent depended on her (false) belief that the pair had gone through a valid marriage ceremony and that he was, therefore, her husband. The High Court (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) stated at 260: "It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so. It is not the fraud producing the mistake which is material so much as the mistake itself. But if the mistake or misapprehension is not produced by the fraud of the man, there is logically room for the possibility that he was unaware of the woman's mistake so that a question of his mens rea may arise. ... For that reason it is easy to understand why the stress has been on the fraud. But that stress tends to distract the attention from the essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act. The identity of the man and the character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of the act to which the woman's consent is directed. That accords with the principles governing mistake vitiating apparent manifestations of will in other chapters of the law." 56The English Court of Appeal in R v Tabassum [2000] EWCA Crim 90; [2000] Cr App R 328 distinguished Richardson on the basis that the Court was there considering an extension to the concept of deception as to the identity of the person performing a procedure. In Tabassum, the victims mistakenly understood that their assailant was medically qualified. The Court held that "they were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality": at 337 [38]. 57The criminal law has dealt with the problem caused by fraud or deception inducing consent in different ways. As the English Court of Appeal noted in Richardson, the Law Commission recommended that there should be a new and lesser offence of "obtaining consent by deception" which was to be distinguished from the more serious offence of acting without any consent: Consent in the Criminal Law (1995) (Consultation Paper No 139), par 6.27, quoted in Richardson at 449. In New South Wales, the result in Papadimitropoulos has been reversed with respect to specific offences by providing that a mistaken belief that the accused is married to the victim negates consent to sexual intercourse: Crimes Act 1900 (NSW), s 61HA(5)(b). The section further provides that "a person who consents to sexual intercourse with another person ... under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or any other mistaken belief about the nature of the act induced by fraudulent means) ... does not consent to the sexual intercourse": s 61HA(5)(c). 58Although in Chatteron Bristow J identified the exception as withholding information in bad faith, constituting fraud, and Dyson J in Appleton referred to the dentist deliberately concealing the truth for financial gain, the reasoning in Papadimitropoulos would appear to establish the correct principle. While the American doctrine of informed consent has not been adopted in Australian law, the requirement of consent is nevertheless founded upon what has been described as a classical expression of principle, articulated by Cardozo J in Schloendorff v Society of New York Hospital 211 NY 125 at 129 (1914), that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault". That proposition was referred to with approval by the plurality in Marion's Case at 310. Consistently with that principle, a practitioner's honest and reasonable belief that the patient has consented is not a defence to a claim in tort. The absence of consent may flow from the incapacity of the patient, innocent misrepresentation or maladministration by the practitioner or hospital, or fraud on the part of the practitioner or other person responsible for obtaining consent. 59This analysis raises a question as to which party bore the burden of proof. With respect to that issue, there has been remarkably little discussion in Australian case law. In Marion's Case, McHugh J (who was in dissent as to the outcome) stated at 310-311: "Notwithstanding the English view, I think that the onus is on the defendant to prove consent. Consent is a claim of 'leave and licence'. Such a claim must be pleaded and proved by the defendant in an action for trespass to land.... It must be pleaded in a defamation action when the defendant claims that the plaintiff consented to the publication.... The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person's right of bodily integrity. Other persons do not have the right to interfere with an individual's body unless he or she proves lack of consent to the interference." 60That view would appear to conform to the reasoning of Windeyer J in McHale v Watson [1964] HCA 64; 111 CLR 384 at 388-389, although the issue arose in a somewhat different context. (See also D Mendelson, The New Law of Torts (OUP, 2nd ed, 2010) at 241-242 and RP Balkin and JLR Davis, Law of Torts (LexisNexis, 4th ed, 2009) at [3.7].) However, to the extent that an alternative to reliance on the objective approach is required, this Court should act on the appellant's acceptance that he bore the burden of negativing consent. 61The authorities thus support four broad principles. First, consent is validly given in respect of medical treatment in circumstances where the patient has been given basic information as to the nature of the proposed procedure. However, where the nature of the procedure has been misrepresented consent will be vitiated. Thus, if it were demonstrated, objectively, that a procedure of the nature carried out was not capable of addressing the patient's condition, there can have been no valid consent. 62Secondly, assuming a proposed treatment capable of providing an intended therapeutic effect, for the purposes of determining the effect of a misrepresentation it is necessary to distinguish between core elements, which define the nature of the procedure, and peripheral elements, including risks of adverse outcomes. Absence of advice or wrong advice as to the latter may constitute a breach of the practitioner's duty of care, but will not vitiate the consent. 63Thirdly, the motive of the practitioner in seeking consent to proposed 'treatment' may establish that what was proposed was not intended to be treatment at all, so that the nature of the act to which consent was ostensibly given was not the act carried out. Thus, although the conduct was objectively capable of constituting therapeutic treatment, if it were in fact undertaken solely for a non-therapeutic purpose not revealed to the patient, there will be no relevant consent. 64Fourthly, at least where a real issue has been raised as to the existence of a valid consent, the burden of proof will lie on the defendant practitioner to establish that the procedure was undertaken with consent. 65Much anxious inquiry has been expended on identifying that which constitutes "the nature" of the treatment or, in the language developed in England and Wales, the "nature and quality" of the act: M Somerville, "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740; see C Gallavin, "Fraud Vitiating Consent to Sexual Activity: Further Confusion in the Making" (2008) 23 NZUL Rev 87; M Wilson, "Assault in medical law: Revisiting the boundaries of informed consent to medical treatment in South Africa" (2009) 16 JLM 862; The Hon PW Young "Is there any law of consent with respect to assault?" (2011) 85 ALJ 23. In the present case, the difficulty of drawing a clear dividing line between the core elements of the treatment, to which consent must be obtained, and peripheral elements, absence of which will not vitiate consent, does not arise. Rather, the issue is whether treatment which was unnecessary (and now conceded to be so) was presented as necessary (again conceded) so that any apparent consent did not satisfy the criteria for consent to treatment, the treatment in question being unnecessary in the sense that it was not capable of constituting a therapeutic response to the patient's condition. 66It follows from the principles set out above that the concessions made by the dentist are sufficient to demonstrate that the appellant did not consent to the proposed treatment, because it was not in fact treatment necessary for his condition. As a result, the treatment constituted a trespass to the person. 67If, contrary to the foregoing analysis, some kind of fraud is required on the part of the practitioner, I would draw the necessary inference that the dentist was at least reckless as to whether the treatment proposed was either appropriate or necessary for the purpose of addressing the appellant's discomfort, for the reasons given at [47] above in considering the application of s 3B(1)(a). Assessment of damages 68These findings require that the judgment below be set aside and damages be reassessed. The only amounts in dispute are the figures for non-economic loss and the amount, if any, for exemplary damages. (a) non-economic loss 69In assessing damages for pain and suffering the trial judge stated at [50]: "The plaintiff had an initial period of significant pain, concern and disruption of his life from January 2002 to 2006. Thereafter, by reason of remedial treatment and his move to the country, he has greatly improved both physically and mentally. He faces additional disruption of his life with the need for further dental intervention. This will occasion him, in all probability, some degree of pain from time to time. However, he is able to, and will continue to, carry on a normal life and engage in normal activities. He has no discernible scars or disfigurement and his teeth will be aesthetically satisfactory once the remainder of the new crowns are in place." 70On that basis, and for the purposes of the Civil Liability Act, he assessed the severity of the loss as 55% of a most extreme case. 71This summary may not have fully articulated the seriousness of the harm suffered by the appellant. After noting that the appellant had not had problems with his teeth, gums or jaws prior to the injury on 19 December 2001, the trial judge continued: "32 The procedures performed by the defendant subjected the plaintiff to considerable inconvenience, apprehension and pain. They resulted in malocclusion of the jaw and the crowns and bridges were so badly constructed that they harboured food and other debris which caused the plaintiff mouth infections. All of the procedures required redoing. 33 As a result of the defendant's treatment, the plaintiff suffered pain in the teeth, jaw, neck and shoulders. He suffered headaches, his sleep was affected and he was restricted to eating soft foods in the main." 72The trial judge then outlined the remedial procedures which had been undertaken from September 2003 until 2010. As the appellant's written submissions noted, on two occasions, the dentist left broken instruments in the appellant's teeth and made no attempt to retrieve the fragments. All of these factors contributed to the conclusion, not challenged on the appeal, that his injuries constituted an order of severity of 55% of a most extreme case. This finding gives guidance as to the appropriate sum for non-economic loss, assessed under the general law. 73The pervasive operation of the Civil Liability Act with its table for the assessment of non-economic loss has tended to obscure the comparable awards which might be thought appropriate under the general law. Indeed, for moderately serious claims, it is arguable that the statutory regime did not reduce the amount of awards to any great extent. The Act imposed a cap on the maximum amount recoverable and provided a sliding scale in respect of claims which did not fall within the category of "a most extreme case". However, once the proportion reached one-third, as in the present case, the calculation was done by reference to the cap. Thus, a loss assessed at 55% of a most extreme case obtained an award of 55% of the cap. 74When the cap was introduced in 2002, it was fixed at $350,000. However, there was provision for indexation: s 17. By the time of the judgment in the present case, the cap was $500,500. However, under the general law interest was available on that portion of general damages ascribed to past pain and suffering. No interest is available under the Civil Liability Act. 75The appellant's claim for $450,000 on account of general damages, accepting the assessment of the severity of the injuries suffered identified by the trial judge, would indicate that for a more extreme case, general damages might be over $800,000. There was no material before this Court which suggested that such awards were made even in respect of young people suffering from quadriplegia as a result of an accident. In all the circumstances, the figure proposed by the dentist of $300,000 is within the appropriate range and should be accepted. 76Each party did a calculation of interest in respect of such damages. The appellant apportioned half of the amount to the past and calculated interest on that sum at 2% per annum from the date the injury commenced to the trial, being a period of approximately nine years. The medical evidence suggests that the appellant's worst times may be behind him, but given that he has a life expectancy from trial of approximately 43 years, that calculation may be accepted. The dentist also allowed an amount for interest, which may well have been calculated on the same basis, but for a period extending up to the date of judgment in this Court: the arithmetic was not disclosed. In the circumstances, it is appropriate to accept the calculation undertaken by the appellant which, on $300,000, would justify an award of interest of $27,000 to the date of trial. (This judgment will take effect from that date.) (b) exemplary damages 77In Ibbett, Spigelman CJ concluded that an assault by a police officer, involving turning a loaded gun towards an elderly woman in her own premises, "was one of the rare cases in which an award of exemplary damages was appropriate": at [28]. The defendant had demonstrated "contumelious disregard" of a plaintiff's right and the conduct was not only intentional, but was intended to cause the apprehension of "immediate personal violence which would occur if Mrs Ibbett did not do as he, screaming loudly, demanded": at [32]. 78Ipp JA in Ibbett agreed with the Chief Justice, also adopting the language of Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [14] that such damages were warranted where there was "conscious wrongdoing in contumelious disregard of another's rights": ibid at [137]. As further explained in Gray at [15], "[i]n considering whether to award exemplary damages, the first, if not the principal, focus of the enquiry is upon the wrongdoer, not upon the party who was wronged". 79The dentist accepted that exemplary damages might be awarded where the conduct in question was "reprehensible, highhanded, outrageous or insulting", adopting language from Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118. He also noted the appellant's contention that such damages were justified by the need for both retribution and general deterrence. He submitted, however, that there was no evidence to support the need for general deterrence in respect of the community of dental practitioners and, in any event, the conduct did not fall within the descriptions adopted in Uren and Lamb v Cotogno [1987] HCA 47; 164 CLR 1. 80Two factors which often cause hesitation in determining whether to award exemplary damages are not present in this case. First, highhanded conduct by police officers, which is a common circumstance justifying such an award, is often defended on the basis that the officer whose conduct was impugned was reacting in fraught circumstances and the conduct continued for only a brief period of time. In the present case, the course of conduct adopted by the dentist was carefully planned and carried into execution over a period in excess of one year. Secondly, with respect to police officers and others, there is a concern that the effect of such an award will affect them only indirectly, if at all, because the financial burden will be borne by the State, or in some cases an insurer. It appears to have been assumed in the present case that the burden would be borne by the dentist personally. By contrast, the appellant submitted, without contradiction, that the dentist had not himself met the judgment for repayment of amounts expended by the employer (or more accurately its workers' compensation insurer) which had been the subject of an earlier judgment. Accordingly, the appellant submitted, the dentist remained unjustly enriched to the extent of the $73,640 in fees received for a course of conduct which he admitted was not necessary. The appellant submitted that any amount by way of exemplary damages should include that figure together with interest calculated at 10% in an amount of $61,858, giving a total of $135,500. 81The appellant accepted that in an assessment of exemplary damages to be awarded against an individual, capacity to pay was a relevant consideration. However, to rely on such a consideration, it would be necessary for the defendant to call evidence which would permit the Court to assess the impact of the award upon him: Pollack v Volpato [1973] 1 NSWLR 653 at 657-658 (Hutley JA). No evidence of that kind was called, and the appellant noted that, at least at the date of trial, the dentist continued in his dental practice. 82All of the considerations set out above are to be taken into account in assessing an appropriate figure for exemplary damages, having regard also to the kinds of figures which have been awarded in the past, some of which are referred to in the judgments in Ibbett. The calculation of fees and interest are themselves to be taken into account, although the ultimate award need not bear any direct arithmetical relationship to them. In all the circumstances, an amount of $150,000 is warranted. Conclusions 83The trial judge gave judgment in favour of the plaintiff in a sum of a little under $1.4 million. The appellant's success on the appeal means that that judgment must be set aside, but only so that the amount can be increased. The revised judgment should take effect from the date on which the trial judge delivered his judgment, namely 30 June 2011. 84Adjusting the schedule of damages handed up by the parties at the hearing of the appeal, to take account of the findings set out above, will result in a judgment in favour of the appellant of $1,743,000. 85The appellant did not seek to interfere with the order made by the trial judge in respect of costs. Although he has not received the full amount of the damages sought, the appellant has been largely successful in this Court and the dentist should pay his costs of the appeal. 86The Court should make the following orders: (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. 87MACFARLAN JA: I have had the advantage of reading Basten JA's judgment in draft. I agree with his Honour's conclusions and, subject to the following, agree in general terms with his reasons. 88I respectfully disagree with his Honour's view that the respondent's concessions that the treatment was unnecessary, yet was presented to the appellant as necessary, of themselves indicated that the treatment constituted a trespass to the person ([65] and [66]). 89As indicated by the High Court in the passage in Papadimitropoulos quoted by Basten JA (see [55]), for an apparent consent to be a real consent the person on whom the act is performed must be aware of the identity of the actor and of the "nature and character of the act". In that case, the complainant's consent was real because she was aware of the identity of the actor and that the act was one of sexual intercourse. Her mistaken belief that she was married to the actor did not vitiate her consent. 90In R v Harms [1944] 2 DLR 61 the Saskatchewan Court of Appeal upheld a conviction for the rape of a woman who had consented to a sexual act, by a person who described himself as a doctor, because he falsely led her to believe that he was performing necessary medical treatment. In Papadimitropoulos the High Court appeared not to approve of the decision (at 260). This is understandable as the woman was aware of the nature and character of the act in question (sexual intercourse) and was only mistaken as to the purpose for which the "doctor" performed it. 91In R v Mobilio [1991] 1 VR 339, the Victorian Court of Appeal, after reviewing relevant authorities, proceeded on the basis that in the context of a rape prosecution, for a woman's consent to be real, she "needs to understand that the act is one of sexual connection as distinct from an act of a totally different character" (at 350). It is difficult in these circumstances to understand why the Court in that case nevertheless quashed the conviction of a radiographer who had introduced an ultrasound transducer or probe into a woman's vagina for his own sexual gratification when he had led the woman to believe that he was conducting a medical examination. So far as is apparent from the report of the decision, the evidence did not indicate that the woman was aware that the act in question was a sexual one. However a final view as to the correctness of the decision need not be arrived at as it concerned a prosecution under a particular statutory provision, rather than under common law, and the principles applicable in criminal and civil contexts are in any event not necessarily identical. 92Some support for my views may be found in principles concerned with the common law concept of trespass to land. As stated by Mason J in Barker v The Queen [1983] HCA 18; 153 CLR 338 at 342, "a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enters for any other purpose, especially if that other purpose be an unlawful purpose" (see also at 369 per Brennan and Deane JJ). 93By analogy, consent to the penetration of one's body for the purpose of medical treatment is not consent for other purposes such as sexual gratification or financial gain. The nature and character of the act of penetration may vary with the purpose for which it is performed. 94I agree with Basten JA's conclusion that in the present case the appellant established that the practitioner acted fraudulently, at least in the sense that he was reckless as to whether the treatment that he administered was either appropriate or necessary (see [65]). In other words it was established that the practitioner did not perform the relevant procedures undertaken on the appellant's teeth for therapeutic purposes but for another purpose, presumably to generate income for himself. Contrary to Basten JA's view, however, I consider this finding to be necessary for the conclusion that the appellant did not consent to the procedures and they therefore constituted a trespass to his person. On the basis of that finding, the appellant was not aware of the nature and character of the dental acts: he believed that they constituted dental treatment that the practitioner regarded as necessary or appropriate. In fact, when the practitioner's state of mind is taken into account, that was not their character. They were acts designed to generate income for the practitioner. 95If the practitioner's state of mind is to be ignored, as Basten JA concludes, negligent advice that treatment is required will result in a trespass despite the practitioner's bona fide belief in the necessity for treatment. This would avoid the limitations on recovery of damages imposed by the Civil Liability Act and expose the practitioner to criminal charges for assault. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2012