TAN v BENKOVIC

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40109/99 DC 2644/97 MASON P STEIN JA HEYDON JA

The respondent sued the appellant in the District Court claiming damages for negligence as a specialist plastic surgeon. On 19 April 1995 the respondent's general practitioner gave a referral to the appellant "for cosmetic surgery". She saw the appellant on 9 May 1995 and decided to have a facelift in light of the discussion. The appellant told the respondent on 9 May that he would make her look 20 years younger; she would feel like a different person; and the operation would not leave her looking like a mummy. The appellant also told the respondent that it was his mission on earth to make people beautiful and that facelifting was his specialty ("the blandishments").

On a visit on 29 August 1995 the appellant discussed a number of post-operatives that would or might occur. The surgery occurred at a later date. From the outset the respondent complained about the outcome. She was unhappy about tightness, asymmetry and lines on her lips. Initially the appellant told the respondent that the facial surgery could not be reversed, and he refused to carry out any further surgical procedures. The respondent persisted in her complaints, there were attempts to telephone the appellant which were taken by his nurse/receptionist but not transferred through to him. The appellant later carried out revision surgery on the respondent's lips, and performed minor excision surgery and scar revision. The appellant finally refused to perform any more surgery and the respondent was left angry and very depressed by the results of the surgery. She was very self-conscious about her "new" appearance.

The trial judge held that many of the risks were disclosed on 29 August. The surgery did not involve trespass. The claim that surgical procedures were performed negligently was ultimately abandoned. Applying Rogers v Whitaker (1992) 175 CLR 479, the trial judge found that the appellant was negligent in not informing the respondent of the full range of risks capable of attending the procedure, in particular the risks of facial asymmetry, nerve damage and dimpling of the lips. These risks came home, despite the exercise of due care in the surgical procedure. It was held that the respondent would not have undergone the procedure had all these risks been brought home to her by the appellant.

Having regard to the nature and extent of the appellant's "blandishments", the shortfall of the results achieved and the respondent's resultant distress and suffering, the trial judge awarded the respondent $30,000 compensatory damages. He also awarded $40,000 aggravated damages bearing in mind that the blandishments and enticements put out by the appellant amounted to contumelious disregard for the doctor-patient relationship obligations he owed to the respondent. The trial judge further awarded $60,000 exemplary damages to the respondent in view of the primacy of the need for sound wise and carefully considered medical advice, and to highlight the egregious behaviour of the appellant in talking the respondent into having an unnecessary operation.

HELD (by Mason P, Stein JA and Heydon JA allowing the appeal):

1 While a good deal of the respondent's disappointment stemmed from her unfulfilled expectations for improvement, Rogers v Whitaker does not offer a basis for recovering damages for such disappointments. Rogers v Whitaker (1992) 175 CLR 479 (applied).

2 In the particular circumstances, it was not improper for the appellant to encourage his patient to proceed with the facelift that she was anxious to obtain. In this case nothing turned on whether or not medical advice was accompanied by these promises and blandishments.

The medical profession, not the realm of the tort of negligence, is best positioned to set its own standards as to appropriate professional practices such as these. Whether surgery was "necessary" or "unnecessary" had no direct bearing upon whether it is performed competently or whether pre-surgical warnings satisfied the Rogers v Whitaker duty.

3 The award of aggravated damages was set aside. No such claim was pleaded or particularised at trial as required in effect by Part 9 Rule 9 of the District Court Rules. Gray v Motor Accident Commission (1998) 186 CLR 1 (referred). There was unexplained overlap between the award of compensatory damages and the award of aggravated damages. There was no basis in the evidence for the finding that the doctor's blandishments amounted to contumelious disregard for the doctor-patient relationship obligations the defendant owed to the plaintiff.

4 The award of exemplary damages was set aside. There was not a "contumelious disregard of the plaintiff's rights" on the part of the defendant in talking the patient into assenting to a facelift operation. Lamb v Cotogno (1987) 164 CLR 1 (referred).

5 The court did not invoke Robinson v Riley [1971] 1 NSWLR 403 upon setting aside the entirety of the aggravated and exemplary damages. The award of $30,000 compensatory damages was not appealably inadequate.

The appeal was allowed with costs, the respondent having a certificate under the Suitors' Fund Act (if qualified); and the amount of the judgment in the respondent's favour was varied by excluding aggravated and exemplary damages and any interest component relating thereto. The parties should file appropriate Short Minutes within 7 days.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40109/99 DC 2644/97 MASON P STEIN JA HEYDON JA

JUDGMENT 1 MASON P: The respondent sued the appellant in the District Court claiming damages for negligence as a specialist plastic surgeon. The claim that surgical procedures were performed negligently was ultimately abandoned, but alternative claims of negligent failure to warn as to risks and negligent post-operative consultation were upheld. 2 Damages were assessed in the sum of $139, 230 made up as follows: Compensatory Damages $30,000 Interest $ 2,100 Aggravated Damages $40,000 Exemplary Damages $60,000 Out of pocket expenses $ 7,130 TOTAL: $139,230 3 Save for an issue about interest which was resolved by agreement, the appeal is confined to the awards of aggravated and exemplary damages. It has provoked a counterclaim by the respondent that the compensatory damages are inadequate if the aggravated and exemplary damages are taken away.

Facts 4 The respondent was born in 1940 in Belgrade. She is a university graduate and she emigrated to Australia with her husband in 1967. 5 In 1991 the respondent's son broke his nose and was referred to the appellant for corrective surgery. Surgery was performed in 1991 and 1995 and there were attendances by the respondent in company with her son on occasions between those dates. 6 On 19 April 1995 the respondent's general practitioner gave her a referral to the appellant "for cosmetic surgery". She saw the appellant on 9 May 1995 and decided to have a facelift in light of the discussion. The appellant reported to the general practitioner the following day: This patient (sic) request for a facelift is justifiable in view of the improvements that can be achieved. This patient's face lift operation will improve her significantly in terms of improving her cheek and upper neck area. We are making arrangements for this to be carried out in the middle of July and I will keep you informed on progress. 7 A deal of evidence was tendered to the effect that the respondent was anxious to improve her appearance through surgery and was, to that extent, in a dependant and vulnerable position. This material was used as the springboard for a variety of submissions by each side. 8 It was found that the appellant told the respondent on 9 May that he would make her look 20 years younger; she would feel a different person; and the operation would not leave her looking like a mummy. At one stage in the judgment these were referred to as "unfulfilled promises" (RB 41), but the action did not proceed as one based upon contract. In the course of the consultation, the appellant also told the respondent that it was his mission on earth to make people beautiful and that facelifting was his specialty. The latter two "blandishments" (the word was the trial judge's) were not found to be untrue, but they were obviously part of the context in which the respondent decided to undergo the treatment. 9 The surgery was initially scheduled for July, subject to a second fuller consultation and payment of the $5000 fee that the appellant had quoted. However, it was on 29 August 1995 that the respondent returned and paid the fee. On this visit the appellant discussed a number of post-operative complications that would or might occur. The primary judge held that many of the risks were disclosed (RB 18-20, 31, 37-8). The surgery performed did not involve trespass (RB 44). 10 Nevertheless, applying Rogers v Whitaker (1992) 175 CLR 479, the learned trial judge found that the appellant was negligent in not informing the respondent of the full range of risks capable of attending the procedure, in particular the risks of facial asymmetry, nerve damage and dimpling of the lips. Unfortunately these risks came home, despite the exercise of due care in the surgical procedure. It was held that the respondent would not have undergone the procedure had all these risks been brought home to her by the appellant. 11 The surgery was done on 11 September 1995. It consisted of a superficial musculo-aponeurotic system (SMAS) procedure together with liposuction. 12 From the outset the respondent complained about the outcome. She was unhappy about tightness, asymmetry and lines on her lips. There were visits to the appellant at his surgery on 12 September, 23 September, 12 October and 21 November 1995 and 30 January, 29 February, 19 March, 21 May, 30 May and 6 June 1996. The appellant told the respondent that the facial surgery could not be reversed and, on 12 October 1995, he refused to carry out any further surgical procedures. The respondent persisted in her complaints. The appellant suggested that the asymmetry existed before the operation. In addition to the visits recorded above, there were attempts to telephone the appellant which were taken by his nurse/receptionist but not transferred through to him. Throughout much of this period the respondent expressed dissatisfaction over the result of the surgery and she asked for alleviation of her plight. 13 Sometime in 1995, probably during the October visit, the appellant raised the possibility of laser surgery to the lips. Initially a fee of $1500 was quoted. Later the appellant through his receptionist offered to do the procedure at a discount on condition that the respondent permitted the operation to be filmed for use in the promotion of the appellant's practice. The respondent accepted this offer and the laser surgery was done on 30 January 1996 and funded by Medicare. 14 On 19 March 1996 the appellant carried out revision surgery on the respondent's lip. On 21 May 1996 and 30 May 1996 there was minor excision surgery and scar revision. 15 On 29 August 1996, the respondent told the appellant that she had received a second opinion and that she claimed to be deformed. She demanded further surgery, but the appellant told her he was unable to offer it. This was the final consultation between the parties. 16 In the upshot, the respondent was left angry and very depressed by the results of the surgery. She was very self-conscious about her "new" appearance. Friends enquired of her whether she had had a stroke. The tightness affected her facial expression, particularly on the left side. She became reclusive, even avoiding going out to do shopping as much as possible. Her self-consciousness was such that she felt unable to travel abroad to see her dying mother. 17 The following findings were made in relation to post-operative treatment: The next aspect of the doctor-patient relationship, which has to be evaluated, is the post-surgery portion. In this area, I do not accept the accuracy of the self-serving statements contained in the correspondence from the defendant to the referring general practitioner Dr Khong. There is no expert evidence in the case to guide the court about what steps the surgeon should take when he becomes aware that his surgical patient is postoperatively disillusioned and complaining about the result. Commonsense would seem to indicate that a policy of ignoring the patient, whilst it might be comfortable and convenient for the surgeon, is contraindicated. The ordinary person in the community would expect the surgeon to make himself available for discussion with the patient to seek to explain - if he could - how the results of the surgery, whatever that might be, are just as he forecast before obtaining the patient's consent to the surgery being conducted. The ordinary person would also expect that the surgeon, if requested and if appropriate arrangements for payment could be made, would embark upon remedial surgery promptly, or at least arrange for a second opinion to be provided. In the event that the surgeon considered remedial surgery to be inappropriate, then, in this day and age, the ordinary person would expect the surgeon to make appropriate recommendations for his dissatisfied and distressed patient to be appropriately counselled. A letter to the referring general practitioner would be the very least that could be done. In the present case, the defendant did not embark upon any remedial surgery for an unacceptably long period of time, viz until 30 May 1996, and then only after an inordinately long period of repeated refusals to speak to the plaintiff. Nor did he make any acceptable recommendations or arrangements for the plaintiff to be counselled.

18 Proceedings were instituted in May 1997. 19 There was a vigorous dispute at trial as to the extent to which the surgery had worsened the condition of the plaintiff's face. Unfortunately there was lack of agreement or clarity as to the "before" and "after" photographs upon which expert opinions had been obtained and which were put into evidence. The matter would not be of concern were it not for the fact that the respondent seeks to have the "compensatory damages" of $30,000 (undisputed by the appellant) increased in the event that the awards of aggravated and/or exemplary damages are found to be affected by error.

Legal bases of liability 20 In recounting the facts as found by the trial judge I have adverted to some of his legal conclusions. 21 The position may be summarised thus:

(a) The respondent consented to the surgery: there was no battery or trespass (cf Rogers at 490).

(b) The surgery was performed with appropriate skill and care.

(c) The appellant was negligent, in accordance with Rogers , for not having alerted the respondent to three risks which came home despite the exercise of due skill and care: (i) facial asymmetry (ii) nerve damage

(d) There was also negligence in after-care, in the sense that the appellant: (i) failed to make himself available to discuss the respondent's concerns (ii) failed to make acceptable recommendations or arrangements for counselling (iii) delayed remedial surgery for an unacceptably long period of time. 22 The trial judge held that the appellant's "blandishments" had contributed to the respondent's willingness to undergo surgery. Indeed, at one stage in the judgment, he referred to the respondent's distress as having arisen "because of disillusionment over the unfulfilled promises made to her" (presumably a reference to the statements that the respondent would be made to look 20 years younger, feel a different person and not be left looking like a mummy). However, the case was never fought in contract. I do not understand the respondent to suggest that she is entitled to be compensated for more than the consequences of surgery to the extent to which her condition after the medical procedures was worse than it was before they were embarked upon. 23 There is no doubt that a good deal of the respondent's disappointment stemmed from her unfulfilled expectations for improvement, but Rogers v Whitaker does not offer a basis for recovering damages for such disappointments. After all, the negligent failure to disclose certain risks is only compensable if a plaintiff undergoes a procedure which he or she would not have undergone had such risks been disclosed. The plaintiff cannot seek tortious compensation for something that would have happened anyway had there been no operation (in this case the aging process).

The trial judge's findings on quantum 24 After some general remarks about different categories of damages, his Honour proceeded: COMPENSATION DAMAGES Having regard to the nature and extent of the blandishments, the shortfall of the results achieved, the resultant disillusionment and distress, the physical pain and suffering actually experienced by the plaintiff in the postoperative period and the serious disruption to her lifestyle and family relationships with the consequent need for tranquillising medication and counselling plus the cost thereof, and having regard to the plaintiff's age and pre-surgical appearance as revealed in the photographic exhibits, $30,000 would be fair compensation. AGGRAVATED DAMAGES Bearing in mind that the tort involved was not one of mere inadvertence and that it was significantly different from momentary inattention, and bearing in mind that the blandishments and enticements amounted to contumelious disregard for the doctor-patient relationship obligations the defendant owed to the plaintiff, under this heading of aggravated damages $40,000 is fair compensation. EXEMPLARY DAMAGES Bearing in mind what the High Court has said about the nature of the surgeon's duty, and in view of the primacy of the need for sound wise and carefully considered medical advice, and in view of the opinion expressed by Dr Arnold Mann that this surgery was unnecessary - a view which, with respect and on the limited basis of the evidence before me, I unreservedly share - and to mark what I hold to be an egregious error on the part of the defendant in talking the plaintiff into consenting to a facelift operation plus the need to stamp the defendant's conduct with a mark of opprobrium, $60,000 is fair exemplary damages.

Factual issues in the appeal 25 The appellant challenges some of the findings of fact said to underpin the awards of aggravated and exemplary damages. 26 The primary judge held that the appellant first raised with the respondent the possibility of a facelift operation when he was treating her son for his nose injury in 1991 (RB 14). The respondent accepts that this was an error and that cosmetic surgery was first discussed between the parties in 1995, after the respondent's general practitioner had referred her to the appellant for that purpose. The error is of some materiality, because it seems to be part of the material relied upon in the trial judge's conclusion that the appellant took advantage of a vulnerable woman by persuading her to undergo surgery. 27 Furthermore, while it is fairly clear that the appellant encouraged his patient to proceed with the facelift that she was anxious to obtain, I cannot see that this is improper in itself. Cosmetic surgery is not unlawful and the respondent was a consenting adult. Her rights to information and disclosure of risks stemming from the Rogers v Whitaker duty of care are significant, but that case does not equate the law of negligence in medicine with the Contracts Review Act. Nor is it proper to treat a patient as lacking autonomy, save so far as the patient is protected by the law of battery and the principles stated in Rogers itself. 28 His Honour accepted the evidence of the respondent's own general practitioner that "patients contemplating cosmetic surgery … generally … have unrealistic expectations - largely inculcated by the hubris of Hollywood" (RB 38). He found perceptive and accurate the evidence of Dr Skinner, a psychiatrist, that the respondent "is preoccupied with concerns about her appearance … an obsessive preoccupation …. There is evidence that this preoccupation was already present … because of the reasons given requesting surgery" (RB 39). The appellant was found to have paid "inadequate attention … to the threshold matter of whether she was a psychologically appropriate candidate for a cosmetic plastic surgery procedure" (RB 43). 29 In part, these findings reflect the way the case was fought. They build upon the case advanced by the respondent through her evidence, the evidence of her witnesses and the submissions of her counsel at trial. Nevertheless, I feel bound to record a sense of unease with these aspects of the background findings. After all, the duty of care in Rogers is premised on the notion of the patient's autonomy, albeit that there are patients and patients and that different proposed medical procedures call forth different matters that ought to be disclosed by the competent medical practitioner. 30 The appellant challenges other findings in the judgment, but none of them strike me as having any materiality to the matters presently in issue. Nothing turns upon whether or not medical advice was accompanied by puffery or exaggerated bedside manner such as statements about making the respondent feel a different person or looking 20 years younger. Blandishments of this nature may have been relevant to the now resolved issue whether the respondent would have undergone surgery had the full risks been disclosed, but their presence could not conceivably establish a case for aggravated or exemplary damages if otherwise unavailable in this particular case. 31 The medical profession is best positioned to set its own standards as to appropriate professional practices in regard to what some would regard as "elective" procedures paid for by patients' own moneys. Obviously there will be situations where over-servicing, overcharging or failure to disclose risks and benefits will incur legal sanctions. But courts should not rush into areas in which subjective professional judgments predominate. 32 These considerations of restraint have particular force in the area of cosmetic surgery. The line between therapeutic and elective - to the extent that it exists at all - is necessarily dependant in part upon the eye of the beholder. Here there remains uncertainty as to which of the respondent's photos were taken before her surgery. Even if that issue could be resolved, I would have real difficulty with accepting that it lay within any area of medical expertise to determine whether pre-operative disfigurement justified intervention (cf Dr Mann's opinion: Bl 44). Additional considerations intervene when public moneys are involved (as they were here), but they appear to lie in the realm of professional practice and conduct and the realm of morality, not in the realm of the tort of negligence. Whether surgery is "necessary" or "unnecessary" has no direct bearing upon whether it is performed competently or whether pre-surgical warnings satisfied the Rogers v Whitaker duty.

The challenges to the awards of aggravated and exemplary damages 33 The appellant submits that all of the physical and psychological sequelae of the surgery were compensated for within the unchallenged award of general damages. 34 As indicated, some of the factual conclusions underpinning the awards are successfully challenged. However, the main attack is much broader.

Aggravated damages 35 The award of aggravated damages is also challenged on a number of grounds, each of which I accept:

(1) No such claim was pleaded or particularised as required in effect by Part 9 rule 9 of the District Court Rules. See also Gray v Motor Accident Commission (1998) 186 CLR 1 at 35-6. Such damages were first sought (almost casually) in written submissions filed by the respondent after the conclusion of the trial. These were in response to the appellant's previously exchanged submissions and at a stage where the trial judge's directions did not envisage any further submissions.

In the circumstances of this case, it was too late for such a claim to be raised in such a manner. A fortiori because of the evidentiary difficulties attending it (see below). We were informed by senior counsel that the trial would have been conducted differently had a claim for aggravated damages been pleaded (Tr p14).

(2) The matters which the primary judge included expressly in his reasons for the award of compensatory damages (par 17 above) necessarily addressed the type of hurt covered by the award of aggravated damages. Accordingly, there was unexplained overlap. (3) There was no basis in the evidence for the finding that the doctor's "blandishments and inducements amounted to contumelious disregard for the doctor-patient relationship obligations the defendant owed to the plaintiff" . (I would add that such considerations concern exemplary rather than aggravated damages.) The respondent gave no evidence of insult, humiliation or the like as the consequence of the doctor's "blandishments". She was undoubtedly upset, vexed and depressed about her dashed expectations and her concern about the detrimental side effects of the operation, but the latter were taken into account in the area of compensatory damages where they belonged. The appellant's "blandishments" and "promises" were not the proper basis of any legal complaint, as I have sought to demonstrate. 36 In light of these matters I would refuse leave to amend the pleadings to include such a claim, as sought during the appeal. 37 During the argument of the appeal, counsel's attention was drawn to a line of English cases that hold that aggravated damages are not available at all in cases of pure negligence (see my judgment in Hunter Area Health Service v Marchlewski [2000] NSWCA 294). 38 The appellant gratefully "adopted" the cases as authority for the proposition that no award of aggravated damages should have been made in this case. It is unnecessary in the present appeal to determine this broader point concerning aggravated damages.

Exemplary damages 39 The appellant accepts that there may be cases where negligence attending a medical procedure is so gross as to merit an award of exemplary damages. This is in accord with the authorities. 40 Lamb v Cotogno (1987) 164 CLR 1 was an action in trespass. Sometimes a medical professional's non-disclosure is so inadequate as to vitiate the patient's consent, with the result that the ensuing procedure is a battery (see Appleton v Garrett [1996] PIQR 1, discussed in "Battery: Exemplary and Aggravated Damages" [1996] Med Law Review 311). 41 Exemplary damages have however been awarded in cases of pure negligence (see, as to the general proposition, Coloca v BP Australia Limited [1992] 2 VR 441; and as to exemplary damages in cases of medical negligence, Backwell v AAA [1997] 1 VR 182, B v Marinovich [1999] NTSC 127, noted (2000) 7(3) JLM 250). 42 I do not think that this case calls for an extensive discussion of the principles relating to exemplary damages. The function and broad parameters of such an award are expounded in Lamb and Coloca. Speaking generally, what needs to be shown is contumelious disregard of the plaintiff's rights by the defendant. 43 In my view the award of exemplary damages in this case must be set aside. Neither the facts as found nor the evidence in the case support his Honour's conclusion that there was "an egregious error on the part of the defendant in talking the patient into assenting to a facelift operation". Nor was this a case exposing a "need to stamp the defendant's conduct with a mark of opprobrium". Nor was there a "contumelious disregard for the doctor-patient relationship obligations" as adverted to in his Honour's reasons for the award of aggravated damages. 44 I have already covered much of this ground. I refer to what I have said about the lack of material in this particular case to sustain any conclusion that the appellant acted improperly in encouraging his eager patient to undergo surgery. 45 There is certainly an entrepreneurial flair about some of the appellant's practices that some would find inappropriate or even offensive. But there was no evidence of excessive charging and it cannot per se be wrong for a doctor or any other professional to have the desire of monetary gain as a motivating force. The appellant performed the surgery without negligence. He disclosed a number of the potential risks and, as to those he did not, explained that this was due to oversight. The judge was not bound to accept that explanation, but he did not make findings rejecting it. 46 The appellant's "blandishments" and "promises", to the extent that they have any bearing upon the Rogers v Whitaker tort, did not convert what remains a negligent failure to alert an eager patient to some fairly unlikely risks which unfortunately came home into a "conscious and contumelious disregard for the plaintiff's rights" (cf Lamb at 9) meriting a punitive and deterrent award of $60,000. 47 I have not overlooked the findings concerning the way in which the appellant treated and delayed treating the respondent post-operation. It is however unclear to me whether they figured in the reasoning supporting the award of exemplary damages. I do not wish to belittle those findings, but they do not strike me as justifying or sustaining the award when one considers the extent to which the appellant did in fact respond to his patient's litany of complaints. I have no difficulty with the idea that contumelious disregard of a doctor's duty to provide adequate after-care might attract such an award in a proper case (cf Lamb at 12-13). 48 The award of exemplary damages should therefore be set aside. 49 This Court was not asked to order a new trial as to damages. Senior counsel for the respondent did however invoke Robinson v Riley [1971] 1 NSWLR 403, submitting that the Court should consider whether a sufficient amount was awarded for compensatory damages before taking away the entirety of the aggravated and exemplary damages. Our attention was drawn to the evidence as to the psychological sequelae suffered by this particular respondent (see esp the report of Dr Skinner at Bl 77-8). With some hesitation, I would reject this invitation. After all, the trial judge segregated the three heads of damages. The reasons explaining the "compensation damage" address both physical and psychological distress in contrast to the reasons supporting the awards of aggravated and exemplary damages which make no mention of them. There is the further difficulty that we have not seen the respondent. Nor is the confused photographic evidence sufficient to lead this Court to conclude that the award of $30,000 compensatory damages was appealably inadequate. Not all of the respondent's distress as recorded by Dr Skinner could properly be seen as stemming from the appellant's negligence as distinct from the respondent's disappointment about failing in her goal of retarding the visible signs of the aging process. 50 The parties were agreed that there had been a slip in the calculations of interest agreed at trial. This can be attended to in the necessary recalculations of interest that flow from the order which I propose. These are that the appeal be allowed with costs, the respondent having a certificate under the Suitors' Fund Act (if qualified); and that the amount of the judgment in the respondent's favour be varied by excluding aggravated and exemplary damages and any interest component relating thereto. The parties should file appropriate Short Minutes within 7 days. 51 STEIN JA: I agree with Mason P. 52 HEYDON JA: I agree with Mason P. ***********

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