White v Johnston

Solicitors: Gerard Malouf & Partners (Respondent) File Number(s): 2013/244194 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 31 July 2013 Before: Finnane DCJ File Number(s): 2011/289837

[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.] HEADNOTE [This headnote is not to be read as part of the judgment] Between June and December 2009, the respondent, Ms Ruth Johnston, attended the dental surgery of the appellant, Ms Jasmin White, for the purposes of receiving dental treatment. It was alleged that the treatment performed constituted assaults on the respondent, it being unnecessary and ineffective. It was also alleged that the building up of the teeth was negligently performed. Evidence of other malpractice, which included a previous conviction indicating that the appellant had fraudulently obtained payments from health authorities for services never rendered, was admitted by the primary judge on the basis that it was relevant to proving an unpleaded case that the appellant had a tendency to perform work that was unnecessary and to make claims for services not rendered. The requirement of notice under s 97 of the Evidence Act 1995 (NSW) was waived by the primary judge. At first instance it was held that the appellant had no therapeutic purpose in performing the treatment on the respondent and had failed to prove that her patient's consent was valid. Assault and battery were therefore made out. The primary judge relied on the evidence of malpractice which had been admitted on the basis that it showed a tendency to perform work that was unnecessary. Damages were awarded by the primary judge on the basis that the Civil Liability Act 2002 (NSW) did not apply, despite the primary judge not making a finding as to whether the acts done by the appellant were done with intent to cause injury, as required by s 3B(1)(a) of the Act. The primary judge awarded substantial compensatory damages and $150,000 in exemplary damages, regarding the case as comparable to Dean v Phung [2012] NSWCA 223. On appeal it was contended that the evidence did not establish an absence of therapeutic purpose in the treatments performed by the appellant, that the primary judge erred in relying on the evidence admitted to demonstrate a tendency to charge for services not performed in determining an absence of therapeutic purpose and in waiving the notice requirement, and that the exemplary damages were excessive. The Court held, allowing the appeal:

1. Where a medical practitioner is solely motivated by an unrevealed non-therapeutic purpose, the patient's consent is not valid and there will be an assault and battery: at [2], [17] and [61]-[73]. Dean v Phung [2012] NSWCA 223; R v Jones [2011] QCA 19; 209 A Crim R 379; R v Clarence (1888) 22 QBD 23; Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249; Barker v The Queen [1983] HCA 18; 153 CLR 338 considered and applied.
2. Where the question is whether the medical practitioner has fraudulently procured a patient's consent, the onus lies on the patient to establish fraud: at [4], [17] and [78]-[92]. Wallaby Grip Limited v QBE Insurance (Australia) Ltd [2010] HCA 9; 240 CLR 444; Currie v Dempsey (1967) 69 SR (NSW) 116; Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 followed and applied. Dean v Phung [2012] NSWCA 223 explained.
3. Consideration of the onus of establishing consent or an absence of consent: at [4], [17] and [93]-[129]. Christopherson v Bare (1848) 11 QB 473; 116 ER 554; Secretary, Department of Health & Community Services v JWB and SMB (Marion's case) [1992] HCA 15; 175 CLR 218; Sibley v Milutinovic (1990) Aust Torts Reports 81-01; Hart v Herron (1984) Aust Torts Reports 80-201; Ford v Ford 143 Mass 577 (1887); Freeman v Home Office (No 2) [1984] QB 524 considered.
4. In order for s 3B to displace the Civil Liability Act's exclusion of exemplary damages, there must be an intentional act and the act must be done with intention to cause injury: at [4], [14] and [130]-[132].
5. The evidence of other malpractice by the practitioner was wrongly admitted, because it lacked significant probative value for the different purpose of establishing that none of the work had a therapeutic purpose: at [4], [17] and [133]-[143].
6. The discretion to order exemplary damages miscarried, because they were determined before compensatory damages were determined: at [4], [18], [145]-[146] and [152]. State of New South Wales v Zreika [2012] NSWCA 37 applied.
7. The discretion also miscarried because Dean v Phung was not a comparable case, having regard to the extent of the work, the seriousness of the harm, the differing role of personal deterrence and the different financial positions of the practitioner: at [4], [18] and [147]-[152].

Judgment

1. BARRETT JA: I have had the advantage of reading in draft the comprehensive judgment to be delivered by Leeming JA.
2. Central to his Honour's conclusion that the award of damages for assault (or, more precisely, assault and battery) cannot stand is his opinion that it was for Ms Johnston, as plaintiff, to prove that the treatment administered to her by Ms White was devoid of therapeutic purpose, that being an essential element of the particular tort that consists of absence of the plaintiff's consent. That opinion is, in my respectful view, correct. For the reasons elaborated by Leeming JA, some genuine therapeutic outcome was intended by Ms White to be achieved - and was achieved - by the course of dental treatment to which Ms Johnston subjected herself at Ms White's hands; and any purpose that Ms White may have had of "over-servicing" for her own financial gain was irrelevant to the issue of liability for assault.
3. As Leeming JA recognises at [92], the foregoing is sufficient to dispose of the appeal as a whole, with the result that the orders his Honour proposes at [156] should be made.
4. In relation to other matters canvassed by Leeming JA, I agree with his observations on s 3B of the Civil Liability Act 2002 (NSW), ss 95 and 97 of the Evidence Act 1995 (NSW) and the award of exemplary damages. In also endorsing what his Honour says on the question whether a plaintiff suing in assault and battery must prove lack of his or her consent to the defendant's action (or whether it is for the defendant to establish that the plaintiff consented), I would merely say that, at least in the civil sphere where no issue of breach of the peace arises, "assault" and "battery" (like "imprisonment") carry an essential connotation of invasion against a person's will indicating that lack of informed consent on the plaintiff's part is an element of the legal wrong that he or she must prove; and it is meaningless to speak of an assault that is consensual. Under the rules of common law pleading, it was sufficient for the plaintiff to allege in the declaration that the defendant "assaulted" the plaintiff. Such a count carried within it an allegation of a non-consensual act; and that allegation was appropriately put in issue by a plea of "not guilty".
5. EMMETT JA: The appellant, Ms Jasmin White, a former dentist, appeals from a verdict of the District Court in favour of the respondent, Ms Ruth Johnston. Ms Johnston sued Ms White in the District Court alleging, inter alia, that Ms White had carried out certain treatment on her that was unnecessary and ineffective and known to be so by Ms White, such that the treatment was a trespass and an assault on her. The trial judge accepted the assertions and entered a verdict in the sum of $330,397 made up of the following: General damages - $140,000 Past out-of-pocket expenses - $10,057 Future out-of-pocket expenses - $12,340 Exemplary damages - $150,000 Aggravated damages - $10,000.
6. In her further amended notice of appeal filed on 17 November 2014, Ms White makes the following complaints: The trial judge erred in finding that Ms White did not undertake the treatment of Ms Johnston for the purpose of treating her and that Ms White committed an assault or trespass; The award for exemplary damages in the amount of $150,000 was manifestly excessive.
7. Ms White contends that the finding made by the trial judge, that the treatment administered by her on every occasion was unnecessary and not for therapeutic purposes, was not open on the evidence before his Honour. She also contends, in the alternative, that his Honour erred, in making that finding, by relying on evidence as to treatment administered by Ms White to other patients (the impugned evidence), which she contends was inadmissible. The impugned evidence was admitted as tendency evidence and Ms White contends that, if it was otherwise admissible, it ought to have been excluded under s 97 of the Evidence Act 1995 (NSW), on the basis that it did not have significant probative value as required by s 97(1)(b) and that the trial judge's exercise of discretion to dispense with the notice requirement of s 97(1)(a) in respect of that evidence miscarried.
8. Under s 97(1), evidence of a tendency that a person has or had is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind unless: the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
9. However, the notice requirement does not apply if the evidence is adduced in accordance with any direction made by the court under s 100 or the evidence is adduced to explain or contradict tendency evidence adduced by another party.
10. Under s 100, the court may direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under s 97. Under s 192(2), in deciding whether to give a direction, the court is required to take into account various matters, including the extent to which to do so would be unfair to a party, the importance of the evidence in relation to which the direction is sought and the power of the court to adjourn the hearing. The trial judge said nothing about any of those matters when purporting to exercise his discretion to direct that the impugned evidence be admitted notwithstanding the absence of notice under s 97(1)(a).
11. The allegations made in Ms Johnston's amended statement of claim may be summarised as follows: Between about June 2009 and December 2009, Ms Johnston attended Ms White's premises (the surgery) for the purpose of undergoing dental treatment, including filling her lower canine and molar teeth, which were affected by decay; Ms White so ineffectively treated Ms Johnston that her lower canine and molar teeth remained affected by decay at the conclusion thereof; Such treatment as was rendered to Ms Johnston in that regard was unnecessary and ineffective, and known to be so by Ms White, such that it was a trespass and an assault on Ms Johnston; In December 2009, Ms Johnston attended the surgery for the purpose of building up her lower incisor and canine teeth (the front bottom teeth); While Ms Johnston was present at the surgery, Ms White built up her front bottom teeth; Ms White had no permission from Ms Johnston to build up or otherwise modify her front bottom teeth; The building up of the front bottom teeth constituted assaults on Ms Johnston; The building up of the front bottom teeth was unnecessary and ineffective, and known to be so by Ms White, such that it was a trespass and an assault on Ms Johnston; Further, the treatment of the front bottom teeth was so negligently performed that the teeth could thereafter not fit securely beneath the dental plate above them and such treatment of the front bottom teeth was performed negligently by Ms White; As a result, Ms Johnston sustained injury and has and will suffer loss and damage.
12. On 2 August 2012, Ms Johnston filed an amended statement of particulars of personal injury. She alleged that the injuries received were damage to her teeth and shock, pain and suffering. She particularised continuing disabilities and past and future out-of-pocket expenses. Significantly, there was no mention of either aggravated damages or exemplary damages.
13. Ms Johnston relied on her own evidence, given by affidavit, as well as other categories of evidence, including the following: an affidavit of Ms Sue Hynes, who had been employed by Ms White as a dental nurse; a signed statement of Ms Kay Veza, who worked as Ms White's receptionist and was treated by her; a certificate of conviction from the state of Queensland indicating that Ms White had pleaded guilty to a charge of dishonestly obtaining currency from Queensland Health.
14. The trial judge considered that the impugned evidence was admissible to prove that Ms White has a tendency to carry out dental work that was not necessary and to make false claims for work that was not carried out at all. Therefore, his Honour concluded, the evidence was admissible under s 97 of the Evidence Act. His Honour waived compliance with the requirement to give notice.
15. The trial judge dealt with the question of damages very economically. His Honour concluded that Ms Johnston was entitled to damages at common law because the actions of Ms White were not negligent, but were deliberate. That appears to be an allusion to s 3B(1)(a) of the Civil Liability Act 2002 (NSW), which provides that the provisions of that Act do 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. There are thus two prerequisites for the application of s 3B(1)(a). The first is that the liability must arise in respect of an intentional act; the second is that the act must be done with intent to cause injury. There is no doubt that the acts of Ms White complained about by Ms Johnston were intentional acts. However, his Honour made no finding that Ms White did those acts with intent to cause injury.
16. The trial judge said that he must apply damages on the usual principles, meaning thereby that he must look at the question of general damages, past and future out-of-pocket expenses, exemplary and aggravated damages, as well as interest on past exemplary and aggravated damages. His Honour observed that Ms Johnston was 78 years old, had suffered a considerable amount as a result of the treatment and will have to suffer a great deal more, as she will have to have more treatment. His Honour said that Ms Johnston was entitled, for whatever number of years she may have remaining, to live in a pain-free and comfortable existence. At the same time, his Honour observed, Ms Johnston will not have to put up with the consequences of the treatment for as long as a person who was 40 years younger. The trial judge then said that the sum of $140,000 was sought for general damages and that, in his opinion, that was a reasonable amount. There was no dispute about past out-of-pocket expenses and future out-of-pocket expenses.
17. His Honour then dealt with exemplary and aggravated damages, although no claim for them had been made until the first day of the trial. His Honour said that in Dean v Phung [2012] NSWCA 223, where a dentist was involved in an extraordinary number of treatments for no particular purpose, the Court of Appeal thought that $150,000 in exemplary damages was appropriate. In purporting to apply that case to the facts of the present proceedings, his Honour simply said "I agree". His Honour then said that aggravated damages were sought in the sum of $10,000. Again, his finding on that issue was expressed as "I agree". No further reasons or explanation were given for arriving at the figure of $150,000 for exemplary damages. In particular, his Honour did not undertake any analysis of the reasons of the Court of Appeal in Dean v Phung.
18. I have had the considerable advantage of reading in draft form the proposed reasons of Leeming JA. I agree with his Honour's conclusion, for the reasons proposed by him, that there was no evidence to support a finding that none of Ms White's treatment was therapeutic or a finding that Ms White's purposes were wholly non-therapeutic, so as to shift an evidentiary burden to Ms White. I agree that the legal burden remained at all times with Ms Johnston to prove that Ms White's treatment bore no therapeutic purpose, if that was how an absence of valid consent were to be established. To the extent that the trial judge approached the matter differently, his Honour was in error. It therefore follows that the appeal should be allowed.
19. I also agree with Leeming JA, for the reasons proposed by his Honour, that the reasons of the trial judge disclose error of principle in failing to determine compensatory damages before turning to exemplary damages, and also material error of fact in regarding Dean v Phung as relevantly comparable for that purpose. Accordingly, even had the appeal otherwise failed, the award of exemplary damages would have had to be set aside.
20. I also wish to associate myself with the observations made by Leeming JA concerning the tragic circumstances that occurred at the time of the hearing of this appeal. Counsel are to be commended for the way in which the appeal was conducted having regard to the particularly harrowing reason for vacating the original hearing date. In that regard, the loss to the profession of Ms Katrina Dawson was a momentous one. I agree with the orders proposed by Leeming JA.
21. LEEMING JA: The main issues in this appeal turn on an important and complex proposition: a patient's consent to medical treatment is invalid if the medical practitioner's unrevealed purpose is wholly non-therapeutic, with the result that the medical practitioner is civilly liable for assault and battery (and may also have committed a crime). The appeal raises two other issues: the admission as "tendency evidence" of other malpractice by a medical practitioner, and the award of exemplary damages.
22. The trial judge concluded that the respondent patient did not give a valid consent to a series of dental procedures performed by the appellant. His Honour found that the dental treatment, which was all paid for by the Department of Veterans' Affairs, was "totally unnecessary" and was carried out "on every occasion for the purpose of extracting money from the Department of Veterans' Affairs not for the purpose of treating the plaintiff". His Honour entered a verdict based on assault, awarding large components of general damages ($140,000) and exemplary damages ($150,000), and did not determine the alternative case of negligence. From that verdict there was an appeal, but no notice of contention.
23. I have concluded that his Honour erred (a) in the factual finding as to the nature and purpose of the treatment, (b) in his view that the defendant practitioner bore the onus of disproving fraud, (c) in relying on tendency evidence and (d) in the award of exemplary damages. The regrettable result is that the judgment must be set aside and there must be a retrial on the undetermined claim in negligence, unless the parties can otherwise resolve their dispute.

Ms Johnston's pleaded case of assault

1. Ms Ruth Johnston's amended statement of claim identified two treatments carried out by Ms Jasmin White, who was formerly a dentist: (a) filling her lower canine and molar teeth, and (b) building up the front bottom teeth. Causes of action in negligence and for assault were alleged. The claim in negligence was at the forefront of the original (unamended) statement of claim; it was to the effect that the treatments were performed so ineffectively as to be negligent. The undetermined negligence claim explains much of the evidence (see below), but may otherwise be put to one side for present purposes.
2. The pleading in its final form also alleged that Ms Johnston, between June 2009 and December 2009, attended Ms White's premises in Lightning Ridge in far northwestern New South Wales "for the purpose of undergoing dental treatment, including filling her lower canine and molar teeth". That was admitted. It was alleged that the treatment given by Ms White for filling her lower canine and molar teeth "was unnecessary and ineffective and known to be so by [Ms White] such that it was a trespass and an assault on the plaintiff". Precisely the same allegation was made in relation to the building up of Ms Johnston's front bottom teeth. In addition, it was alleged that Ms White had no permission from Ms Johnston to build up or otherwise modify the front bottom teeth, which was separately said to mean that to do so was an assault. Nothing turns on the fact that the litigation was pleaded and conducted by reference to assault, rather than assault and battery.
3. It was not alleged that Ms White had made false claims for work not in fact done. There was a claim for damages, which was particularised, but there were no claims for, or particulars of, aggravated or exemplary damages.

Ms Johnston's evidence at trial

1. On 31 May 2013, an order was made that the evidence in chief be given by sworn statements or affidavits, which were to be served by 21 June 2013. The orders noted that Ms Johnston was only proceeding against Ms White, and not her company (joined as the first defendant) which was in liquidation; the company is not a party to the appeal. The orders noted that the plaintiff would serve a bundle of affidavits and other documents by 26 July 2013, and confirmed the hearing set down for 30 July 2013: Johnston v Dr Jasmin White's Dental Surgery Pty Ltd (in liq) [2013] NSWDC 127. Ms White was directed to give notice of any deponents she wished to cross-examine. So far as appears from the record, she did not do so.

(a) Ms Johnston's evidence

1. Ms Johnston's affidavit stated that she was presently 78 years of age, that she had first come under Ms White's care in June 2009, when "I was perhaps in need of some fillings as I had had no dental work for some time". She had an upper full denture, and ten teeth in her lower jaw. She said she was a war veteran and her medical bills were all paid by the Department of Veterans' Affairs. She then said that, having seen the list of 102 dental procedures which were carried out over the next six months, on 28 consultations, "I did not see her on anything like that number of occasions"; she said it was closer to 10 or 11. She said that her previous dentist had told her that she had had only between 21 and 28 of the procedures listed.
2. Ms Johnston said that in early December 2009 she inquired about having her four front lower incisors "tipped". She said: "Jasmin White said to me in words to the effect, 'I can do better than that, I will build them up.' I did not know what she meant by that but it sounded pretty good to me. Jasmin White then proceeded for about 1 to 1 and [a] half hours that day to build up and around the tops of all four lower canines. I did not realise and I was never warned that she could make the canines too high." Ms Johnston said that the consequence was that the upper plate had cracked when chewing because of the pressure from the overbuilt teeth.
3. The affidavit also referred to Ms White applying "some type of whitish cement" which she had never asked for, which was ineffective, and which caused discolouration, a very painful abscess where Ms White had treated her, and the subsequent extraction of rotten teeth. It concluded: "When I first attended Jasmin White's dentistry my upper denture and remaining 10 lower teeth were fine. No teeth were aching. Now I only have six (4 discoloured) sensitive teeth (when brushed). All this has been very distressing for me as I am no longer young. It was and is much worse than written on paper."
4. Ms Johnston was not cross-examined, and her entire affidavit was read without objection.

(b) The expert evidence

1. The only expert evidence was provided by a dental surgeon dated 8 May 2012 (that is to say, before the amendments to the statement of claim which expanded the case in assault). He had seen Ms Johnston in April 2012, and expressed an opinion about the state of her teeth, whose details need not be recounted. Under the heading "As to Liability", he said: "[I]n my opinion Dr Jasmine [sic] White fell short (at the time services were provided) of acting in accordance with peer professional standards because in so far as we can associate Dr White's Veterans' Affairs Treatment List with at least the dental work on the lower front six teeth and the associated periodontal condition (1) The build up … resulted in very large teeth [with a series of adverse effects] (2) The poor periodontal condition of the six lower front teeth … does not correlate with the 24 'root planing and subgingival curettage' (gum treatments) that Dr White supposedly carried out as recorded in the … Treatment List … It is highly unlikely that the majority of these treatments were carried out, (3) I cannot find any evidence for the five visits for 'extirpation of pulp and debridement' (i.e. root canal work) recorded in the … Treatment List yet there are three chronic (long standing) existing endodontic abscesses which needed treatment …"
2. It will be seen that Ms Johnston's affidavit and the expert evidence provided a basis for an unpleaded case in fraud - for rendering fees for work not in fact performed - as well as for doing work negligently. However, neither the affidavit nor the report contained a clear basis for concluding that Ms White knew that the work she was doing was unnecessary and was carried out solely for the purpose of making money.

(c) The tendency evidence

1. There were three pieces of evidence tendered by Ms Johnston and admitted as "tendency evidence": paragraphs 9-16 of an affidavit of Ms Sue Hynes, a statement of Ms Kaye Veza, and a Queensland certificate of conviction and some other Queensland material. This evidence was tendered by Ms Johnston for the sole purpose of proving that Ms White had a tendency. As will be seen below, it was therefore "tendency evidence" as defined in the Evidence Act 1995 (NSW).
2. Ms Hynes was a dental nurse employed by Ms White at Lightning Ridge. Paragraphs 9 and 10 of her affidavit stated that: "My observation of Dr White's treatment was that she applied bandage solutions and was not actually treating the problem. During my time as a dental nurse in Lightning Ridge I noticed a number of patients return to Dr White complaining of dissatisfaction mainly with ill fitting dentures and infections."
3. The remaining paragraphs were directed to the proposition that Ms White billed for work she did not do. Ms Hynes said that one resident of Lightning Ridge, now deceased, was charged for fillings, yet he had a full set of dentures and no remaining teeth. She said that she personally was charged for a gold tooth filling which she never received. And she recalled statements by Ms White to the effect that, "It was government money, not the patients'".
4. Ms Veza's statement was to the effect that she consulted Ms White for a period of approximately four years, as well as working as her receptionist. She said that she had expected that Ms White would cap one of her molars. Rather than doing so, she said that Ms White did "quite a lot of work on my teeth", placing fillings, and whitened her teeth which left them cracked and stained, and "[w]hen she cleaned my teeth, she never dealt with the decay", as a result of which her teeth continued to rot. She said that Ms White "tried to do everything so quickly that she did not properly clean my teeth". She said that although her molar was never capped, Ms White still charged Medicare for it.
5. A certificate under the Justices Act 1886 (Qld) issued by the Magistrates Court at Dalby certified that on 24 August 2010, Ms White had been charged with dishonestly obtaining Australian currency from Queensland Health, trading as Roma Base Hospital, between 1 January 2005 and 9 July 2008, that she had pleaded guilty, had been sentenced to 12 months' imprisonment, which was wholly suspended, and had been ordered to pay $5541.35 to the complainant. The certificate contained a note: "Please note: The defendant was originally before the court on 38 charges of Fraud. These charges were dismissed and the defendant was discharged in relation to those 38 charges and was sentenced on the above charge only."
6. Other material obtained on subpoena from Queensland included a list of 38 occasions between 2005 and 2008 in which small amounts of money were obtained from Queensland Health. The amounts totalled $5541.35.
7. It will be seen that aspects of each of the three pieces of tendency evidence were supportive of the unpleaded case that Ms White charged for work she did not perform (and in respect of which Ms Johnston suffered no loss). Arguably, some aspects of the statements of Ms Hynes and Ms Veza were also directed to a case of breach of duty. None was directed to an unpleaded case that Ms White performed work which she knew to have no therapeutic worth.

The course of the trial

1. At the commencement of the hearing, counsel for Ms Johnston handed up an amended schedule of damages. For the first time, a claim was made for damages at common law, which was in the alternative to a claim under the Civil Liability Act 2002 (NSW). This aspect of the document sought general damages of $140,000, exemplary damages of $150,000 and aggravated damages of $10,000, and in that order.
2. Ms Johnston's case was opened on the basis that it was primarily a case of assault, based on the proposition that "where a medical practitioner renders treatment with a view to lining his pockets for want of a more elegant phrase, it is an assault at common law with the result that both aggravated and exemplary damages are claimed". The claim in negligence was pressed, but was not at the forefront of the opening (understandably given that it could not sustain claims for aggravated and exemplary damages).
3. There was no protest by Ms White to the reformulation of Ms Johnston's case. There was no objection to any of Ms Johnston's affidavits (although there was much in them to which objection could have been taken). There was no cross-examination by Ms White. Ms White was herself cross-examined, relatively briefly. It was put to her that she rendered some invoices fraudulently, for work that was not done at all. It was put to her that she was not providing proper medical treatment. It was put to her that she was providing dental services not for the purpose of treating any condition, but for the purpose of securing a fee. All this she denied.
4. Following the cross-examination, the tendency material was tendered. Counsel for Ms Johnston very properly advised that no notice had been served. When the appeal was heard he accepted that the best statement of the purpose of the tender was: "to prove a tendency on the part of the defendant to render bills to government utilities without providing the treatment for them."
5. The primary judge dispensed with the notice requirement, after hearing from Ms White, having ascertained that at least the affidavit of Ms Hynes and the statement of Ms Veza had been served a few weeks previously. His Honour gave ex tempore reasons, including that: "it was clear that the plaintiff's case was going to involve claims that her conduct amounted to excessive and unnecessary treatments, with the bills being sent to statutory authorities, and that this evidence would be admissible to show that the defendant had adopted this course in relation to persons other than the plaintiff in this case."
6. In relation to the Queensland materials, his Honour said that they did not merely go to bad character, but they: "went to the question of the case against the plaintiff which is, amongst other things, that she charged for services that she did not carry out."
7. Final addresses were brief (in all, six pages of transcript). Counsel for Ms White was asked about exemplary damages: "HIS HONOUR: Is there some reason for picking $150,000? THOMPSON: Yes. The figure I extracted in the damages schedule is the precise figure which was awarded in the matter of Dean v Phung in similar circumstances. The reference is to be found in para 82 of the Court's judgment."
8. His Honour advised Ms White that the plaintiff's case was put on two bases. "One is that you were negligent in the treatment of the plaintiff. ... And the second is that you deliberately undertook to do dental work that was completely unnecessary, with a view to making money from unnecessary charges." In a very short submission, Ms White denied there was any fraud, and denied that anything was done negligently.
9. The primary judge adjourned for 15 minutes, and then delivered judgment. His Honour reiterated the evidentiary rulings and his reasons for them (and, it must be said, not entirely consistently: for example, paragraph 9 of Ms Hynes' affidavit was excluded in the initial ruling, but admitted in the reasons for judgment). His Honour said that the defendant was "a witness of no credibility whatsoever", and found that Ms White carried out treatment "that was totally unnecessary". He said that "[t]he fact that [Ms Johnston] agreed to dental services being carried out is of no consequence if, in fact, they were unnecessary to be carried out and were carried out for one purpose only and that is for the defendant to make money". His Honour then reproduced the following passage (to which it will be necessary to return) from Dean v Phung [2012] NSWCA 223 at [61]-[64]: "The 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. Secondly, 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. Thirdly, 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. Fourthly, 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."
10. His Honour applied the third and fourth of those principles. He said that "the onus is on the defendant to prove the consent was genuine and valid. In my opinion she has not discharged that burden." To the contrary, his Honour found that "she undertook the treatment on every occasion for the purpose of extracting money from the Department of Veterans' Affairs not for the purpose of treating the plaintiff". The primary judge said that in those circumstances, there was no consent, such that there were a series of assaults. His Honour made no finding of fraud.
11. His Honour then concluded that the Civil Liability Act did not apply (although without reference to s 3B), and made an award of general damages. The whole of his Honour's reasons on exemplary and aggravated damages was as follows: "Exemplary and aggravated damages are sought. In the case of Dean v Phung [2012] NSWCA 223, a case where again a dentist was involved and very similar considerations arose, an extraordinary number of treatments for no particular purpose, the Court of Appeal thought $150,000 in exemplary damages was appropriate. I agree. Aggravated damages are sought in the sum of $10,000. I agree."
12. Ms White appealed. She represented herself at trial, and initially, on appeal. However, following a referral by Tobias AJA, Ms Tamara Phillips of counsel appeared. Her further amended notice of appeal raised three grounds: (a) a challenge to the finding that on every occasion the treatment was unnecessary and not for therapeutic purposes, (b) a challenge to the admission of other "tendency evidence", directed to fraudulent claims being made by Ms White in respect of other patients, and (c) a challenge to the exemplary damages awarded.

When is consent an answer to a patient's claim of assault and battery against a medical practitioner?

(a) Introduction

1. The starting point is that consent is vital lest medical treatment be tortious and indeed criminal. As was said in X v The Sydney Children's Hospitals Network [2013] NSWCA 320 at [12] (Basten JA, Beazley P and Tobias AJA agreeing): "The general principle of the common law is that non-consensual medical treatment involves an assault, thus constituting both a criminal offence and a tort. That 'principle of personal inviolability', as noted in Secretary, Department of Health and Community Services v JWB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 234, echoes the well-known words of Cardozo J in Schloendorff v Society of New York Hospital 105 NE 92 (1914) at 93: 'Every 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.'"
2. I am putting to one side, for they are irrelevant for present purposes, qualifications and exceptions such as emergency or pursuant to statute, such as s 37 of the Guardianship Act 1987 (NSW).
3. Secondly, consent may and often will be oral, particularly if the procedure is relatively minor. Much dental work will fall within this category. Again, I am putting to one side statute, such as the Human Tissue Act 1983 (NSW), ss 19-20B, which makes written consent mandatory for the purpose of blood transfusions.
4. Thirdly, consent may be express or implied, and in each case whether it has been given is a question of fact: Hunter and New England Area Health Service v A [2009] NSWSC 761; 74 NSWLR 88 at [40(2)]. Professor Jones gives the following example: "Consent may be either express or implied from the claimant's conduct. If a doctor tells a patient that he wants to give him an injection and the patient silently bares his arm and holds it out for the needle he will be taken to have consented": M Jones, Medical Negligence, Sweet & Maxwell, 4th ed 2008, p 559.
5. Fourthly, and speaking generally, defects in obtaining consent tend to go to negligence rather than to establishing assault and battery. In Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 490, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ discountenanced the importation of the United States concept of "informed consent" as: "…apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; 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."
6. The same disfavour has been expressed more recently in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [9] (Gleeson CJ) and Reeves v The Queen [2013] HCA 57; 88 ALJR 215 at [35] (French CJ, Crennan, Bell, and Keane JJ).
7. As Basten JA has observed, in his judgment in Dean v Phung [2012] NSWCA 223 at [48]-[50] to which in this and other respects I am considerably indebted, this may be traced to contemporaneous developments in Canada, England and Australia. The passage from Rogers v Whitaker reproduced above was an endorsement of what had been said in Chatterton v Gerson [1981] QB 432 at 443 by Bristow J. His Lordship had in turn followed the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112. That decision was itself affirmed by the Supreme Court of Canada: Reibl v Hughes [1980] 2 SCR 880; 114 DLR (3d) 1, which was in turn applied by the English Court of Appeal in Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] QB 493. Those developments were adopted by Australian courts at first instance and, ultimately, by the High Court in Rogers v Whitaker. This may be seen as another aspect of the "imperial march of negligence" throughout the twentieth century: see P Underwood, "Is Ms Donoghue's Snail in Mortal Peril?" (2004) 12 Torts Law Journal 39 at 48, citing J Spigelman, "Negligence: The Last Outpost of the Welfare State" (2002) 76 ALJ 432.
8. Fifthly, although negligent disclosure by a medical practitioner will not of itself vitiate consent, there are circumstances in which a patient's prima facie consent will not be an answer to assault and battery. In Chatterton v Gerson, immediately after the passage endorsed in Rogers v Whitaker, Bristow J had continued: "Of course if information is withheld in bad faith, the consent will be vitiated by fraud. Of course if by some accident, as in a case in the 1940's in the Salford Hundred Court where a boy was admitted to hospital for tonsilectomy and due to administrative error was circumcised instead, trespass would be the appropriate cause of action against the doctor, though he was as much the victim of the error as the boy." Likewise, Laskin CJC in the Supreme Court of Canada had said that a failure to disclose risks of medical treatment does not invalidate the genuineness of the consent "unless there has been misrepresentation or fraud to secure consent to the treatment": Reibl v Hughes [1980] 2 SCR 880 at 891; 114 DLR (3d) 1 at 11.
9. Questions of accident and administrative error may be put to one side for present purposes. So too may other cases where consent is invalid (such as where the treatment materially departed from that to which consent was given). To be clear, in doing so, I do not intend to cast doubt on what Basten JA said at [58] in Dean v Phung in this respect as to a principle broader than the bad faith or fraud referred to in Chatterton and Reibl. I put this question to one side because it is sufficient for present purposes to focus on the third and fourth broad principles stated in Dean v Phung, which are reproduced above at [49], namely, that where the practitioner is solely motivated by an unrevealed non-therapeutic purpose, there is no valid consent, and that at least where there is a real issue as to consent, the onus to establish it is borne by the practitioner. Each of those propositions was applied by the primary judge. Each is considered in more detail below.

(b) Consent where a practitioner is motivated solely by a non-therapeutic purpose

1. As the passages reproduced above demonstrate, the law distinguishes between the negligent failure adequately to warn a patient who consents to treatment, and the fraudulent procurement of consent for a non-therapeutic purpose. (Like most distinctions in law, the boundaries are blurred; however, it is not necessary to address questions such as how tattooing, piercing, some forms of cosmetic surgery and other non-therapeutic procedures are accommodated.) In Dean v Phung at [51]-[56] Basten JA summarised a series of criminal cases where men were convicted of assaults after obtaining consent on the false basis that the treatment was therapeutic. Those cases included R v Williams [1923] 1 KB 340 (choir master claimed his sexual assault would improve his student's breathing), Chan Wai Hung v Hong Kong Special Administrative Region [2000] HKCFA 99; 3 HKCFAR 288 (woman consented to indecent assault on basis that she was participating in a first-aid demonstration) and R v Tabassum [2000] EWCA Crim 90; [2000] 2 Cr App R 328 (women consented to appellant touching their breasts in mistaken belief that appellant was medically qualified and involved in a breast cancer research programme). (Others are reviewed by the Court of Appeal in R v Jheeta [2007] EWCA Crim 1699; [2008] 1 WLR 2582 and by J Devereux, "When practising fails to make perfect: Medical treatment and battery" (2013) 21 Tort Law Review 120 at 124-5.) Against those decisions stands R v Mobilio [1991] 1 VR 339, where the Victorian Full Court held that the jury could not convict a radiographer who had introduced an ultrasound transducer into a woman's vagina for his sexual gratification, having led her to believe that he was conducting a medical examination. That decision was overturned legislatively (by s 36 of the Crimes Act 1958 (Vic)), and has been doubted by Macfarlan JA in Dean v Phung at [91]. I share his Honour's doubt; it is difficult from what appears in the judgment to reconcile this decision with principle.
2. A more recent criminal decision is R v Jones [2011] QCA 19; 209 A Crim R 379. The accused was an ambulance paramedic, who had been called to a woman's home after midnight because she was suffering chest pains. He carried out an electrocardiogram (ECG), and decided she should go to hospital. She was discharged later that day, but he subsequently returned to her home and said that the doctor had required her to have another ECG, during which he touched her breasts with his hands and with two of the ECG pads. He was convicted on a count of indecent assault. The trial judge had instructed the jury that the accused's motive was irrelevant to indecency. On appeal, White JA (with whom the Chief Justice and Fraser JA agreed) said that: "The quality of 'indecency' is pre-eminently a question for a jury and where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision."
3. Her Honour relied on the principle identified in the House of Lords in R v Court [1989] AC 28 and in the New South Wales Court of Criminal Appeal in R v Harkin (1989) 38 A Crim R 296 that where conduct alleged to constitute an indecent assault was equivocal, then evidence of the motive of the accused was relevant. The point is captured by Lord Griffiths in Court at 35: 'If a juryman is asked to decide whether a man beating a young girl's bottom is acting indecently, the first question he is likely to ask is - why was he doing it?'" See more recently the review by Peek J, with whom Blue and Stanley JJ agreed, in R v C, M [2014] SASCFC 116 at [19]-[28].
4. Those decisions are criminal cases. A relatively rare civil case is Appleton v Garrett (1995) 34 BMLR 23; [1997] 8 Med LR 75, where patients' consents were invalid (and aggravated damages were awarded) in respect of treatment carried out by a dentist which was, to his knowledge, unnecessary and done for financial gain.
5. Alert to the possibility that somewhat different considerations could apply in crime as opposed to tort, Basten JA noted that "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": at [51]. Basten JA drew from those decisions a principle that "the nature of the act could properly be characterised according to the doctor's motivation or purpose" (at [51]), which underpinned the third broad principle identified above (at [63]).
6. I respectfully agree. There are two additional matters supportive of that principle.
7. The first is the role of fraud. Care must be exercised in applying the maxim that fraud vitiates consent. As Stephen J long ago said, the maxim "is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true": R v Clarence (1888) 22 QBD 23 at 43. After giving illustrations of its limitations (for acts of prostitution procured by fraud, every act of bigamy where the second wife was unaware of her predecessor, and "[m]any seductions" would all be rapes, if the maxim were applied uncritically), Stephen J added that "the only cases in which fraud indisputably vitiates consent in these matters are cases of fraud as to the nature of the act done." The High Court applied the same distinction in Papadimitropoulos v The Queen [1957] HCA 74; 98 CLR 249 at 260: "[T]he essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act." Sir Frederick Pollock wrote, in this context, that: "A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon": F Pollock, The Law of Torts (5th ed 1897 p 156; 12th ed 1923 p 163).
8. The second is that an improper purpose - even one falling short of fraud - is relevant elsewhere in tort. As Macfarlan JA noted in Dean v Phung at [92]-[93], in the case of trespass to land, a person licensed to enter but who does so with a purpose outside the scope of the licence is a trespasser. After reviewing the cases, Mason J stated "the common law principle that a person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser": Barker v The Queen [1983] HCA 18; 153 CLR 338 at 346. The circumstances when the possessor of land may extend a permission to enter are much more varied than those applicable to a patient giving consent to a medical practitioner to do that which would otherwise amount to assault and battery, and so it is unsurprising that there are nuances in the former class of case (I have in mind in particular the problematic doctrine of trespass ab initio). However, the basic principle that conduct may be rendered tortious depending upon whether the defendant's purpose is outside the plaintiff's permission is well established.
9. There are also two matters which warrant elaboration for the purposes of this appeal. One favours the medical practitioner, the other favours the patient.
10. The first is that a patient's consent may be vitiated in the manner identified in Dean v Phung where the practitioner's unrevealed purpose is solely non-therapeutic. That qualification is important. Very often, conduct occurs for multiple purposes. It is no criticism to observe that many if not most medical practitioners would attend their hospitals and surgeries each day in part for the purpose of deriving income including by rendering invoices to government (unless they are independently wealthy, only by so doing can they pay their staff and other expenses of their practices).
11. The requirement that the practitioner's purpose be solely non-therapeutic coheres with the position of a trespasser to land: a person who enters land for a purpose within the scope of his or her authority is not a trespasser, even if he or she also has another, alien purpose in mind: Barker v The Queen at 347 (Mason J) and 365 (Brennan and Deane JJ), and see TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; 54 NSWLR 333 at [29]-[34] (Spigelman CJ, Mason P and Grove J agreeing). This requirement also reduces the difficulties in the notion of "purpose", which, as Spigelman CJ said, is "frequently a slippery concept when employed in the determination of legal rights and obligations": TCN Channel Nine at [30].
12. The second is whether treatment which is exclusively non-therapeutic is sufficient, or whether it must be accompanied by a fraudulent or reckless state of mind, in order for a patient's consent to be invalid. In Dean v Phung, Macfarlan JA, dissenting on this point, considered that in order for consent to be vitiated in this way, it was necessary not only that the treatment be exclusively for non-therapeutic purposes, but also that the practitioner acted fraudulently, at least in the sense of being reckless as to whether the treatment was appropriate or necessary: at [94]. Basten JA, with whom Beazley P agreed, considered that it was sufficient to vitiate a consent if the treatment which was unnecessary in the sense that it was not capable of constituting a therapeutic response to the patient's condition was presented as necessary: at [65]. On the more relaxed test favoured by the majority, Hippolyte's ill-judged consent to Charles Bovary's incompetent and unnecessary but well-intentioned operation would have been invalid, although it would probably not have been so regarded by Macfarlan JA. For another example, see A Robins and M Holland, "The enigmatic illness and death of Constance, wife of Oscar Wilde" (2015) 385 The Lancet 21.
13. Macfarlan JA's more onerous test has attracted the support of I Kerridge, M Lowe and C Stewart, Ethics and law for the health professions, Federation Press, 4th ed, 2013, p 343. On the other hand, Sir Frederick Pollock long ago identified, in this context, a solely objective qualification which aligns with the view of the majority: "Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man's tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. … But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object": F Pollock, The Law of Torts (5th ed 1897 p 153; 12th ed 1923 p 160).

(c) Application of principle to the facts

1. There was no dispute that Ms Johnston consented to fillings. That was her original purpose in attending Ms White, and it may readily be inferred that as much was communicated to her in terms as well as being admitted on the pleadings. Likewise, Ms Johnston's unchallenged evidence was that when Ms White proposed to "build up" her lower incisors, she "thought it was a good idea". Moreover, it is to be recalled that Ms Johnston repeatedly over a six month period returned to Ms White's practice (precisely how often was in issue and was not determined, but Ms Johnston said it was 10 or 11 occasions). Although there is much of concern in the underlying facts of this appeal - how did Ms White come to charge the Department of Veterans' Affairs for 102 procedures over a six month period? - it is quite clear that either by words or conduct, Ms Johnston consented to both fillings and the building up of her lower incisors.
2. The primary judge based his conclusion of an absence of valid consent on the finding that the treatment administered by Ms White was "wholly unnecessary" and not for therapeutic purposes. It was necessary for his Honour to take that course, having regard to the pleadings and the evidence, to sustain a verdict based on assault and battery. But was that finding open on the evidence?
3. Some of the dental work done by Ms White was filling, and some was building up the lower incisors. There was no evidence that the filling and building up were incapable of constituting a therapeutic response to Ms Johnston's condition. The position was to the contrary of that in Dean v Phung where there was expert evidence that the treatment was unnecessary and unwarranted, which was conceded by Dr Phung (see at [15]). I would adopt the appellant's written submission: "None of the evidence relied upon by the Respondent in the District Court lent direct support, let alone support of the level of cogency that is required where questions of fraud are involved, to the contention that each of the treatments carried out by the Appellant upon the Respondent was therapeutically unnecessary and known to be so by the Appellant. Moreover, no expert gave evidence in the Respondent's case that any - let alone every - of the treatments carried out by the Appellant lacked clinical justification. Indeed, the Respondent herself gave evidence that supported a finding that at least some of the treatment she received was necessary or requested by her."
4. It followed that the findings that the work was wholly unnecessary, and exclusively for a non-therapeutic purpose, were not supported by the evidence. Those findings are necessary to sustain the crucial conclusion that Ms Johnston's consent was invalid, unless perhaps it may be sustained by reason of his Honour's reliance on onus, to which I now turn.

(d) The onus of vitiating consent fraudulently obtained

1. The primary judge expressly relied on onus, saying that the onus was on Ms White to prove that the consent was genuine and valid. His Honour proceeded to find that Ms White had not acted for any therapeutic purpose, but for the purpose of extracting money from the Department of Veterans' Affairs.
2. The question of onus was complex. There was and is a large and unresolved question whether in a case of assault and battery by a medical practitioner, the plaintiff bears the onus of proving an absence of a valid consent, or the defendant bears the onus of establishing a valid consent: see section (e) below. Moreover, here the dental treatment was consented to, unless it be shown to have been undertaken solely for a non-therapeutic purpose. Accordingly, the issue was not whether consent was given to the dental treatment, but whether the consent which was given was valid, in circumstances where the plaintiff asserted fraud in order to render her prima facie consent invalid. Who bore the onus of showing that the consent which Ms Johnston gave was invalid in the sense that it was no answer to the allegation of assault and battery?
3. I am not sure whether his Honour did in fact rely on onus to reach a finding which was tantamount to fraud by Ms White. His Honour's reasons are very brief, and drew no distinction between legal and evidentiary onus. However, the submission advanced by the respondent on appeal came close to relying on onus: "This ground relates to the opinion expressed by the primary judge that the appellant undertook the treatment on every occasion for the purpose of extracting money from the Department of Veterans' Affairs not for the purpose of treating the respondent. The evidence that the appellant's treatment of the respondent was undertaken for a therapeutic purpose came exclusively from the appellant herself. The primary judge, having observed the appellant, determined that she was a witness of no credibility whatsoever. In the absence of her evidence being accepted and there being no other evidence to the contrary, it was open to the primary judge to hold the above opinion."
4. The conclusion reached by his Honour is tantamount to a finding of fraud by Ms White on Ms Johnston. If a medical practitioner performs treatment with the undisclosed intention of achieving no therapeutic purpose, then there is a knowing deceit practised upon the patient. In the facts of this case, his Honour's conclusion also amounts to a finding of fraud by Ms White on the government.
5. I do not accept that a defendant medical practitioner is subject to a legal burden to disprove fraud, or something which is tantamount to fraud, although he or she may become subject to an evidentiary burden to do so.
6. In order to explain why, it is best to deal with the issue generally. The particular trial involved a late, significant change in case by the plaintiff, without amendment, and allegations of fraud which were neither pleaded nor particularised. The analysis is ultimately the same, but those unusual considerations - doubtless caused by Ms White's lack of representation - distract from the applicable principles.
7. Generally speaking, a finding of fraud could not be made unless it had been pleaded and particularised, and the defendant practitioner had been confronted with it in cross-examination: see Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67] and State of New South Wales v Hunt [2014] NSWCA 47; 86 NSWLR 226 at [32]-[39]. Nor could the allegation be advanced by the plaintiff's counsel without a proper evidentiary foundation: see NSW Barristers' Rules rr 60, 64.
8. Let it be assumed that a plaintiff has properly advanced a case of fraud to vitiate his or her erstwhile consent to medical treatment. I can readily contemplate occasions where the defendant medical practitioner comes under an evidentiary burden to displace the finding of fraud which would otherwise be made, even allowing for s 140 of the Evidence Act and the caution reflected in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 171. Appleton v Garrett is an example. However, if the validity of a patient's consent is to be impugned by a finding which is tantamount to fraud by the medical practitioner, then the legal onus remains borne by the patient, for the following reasons.
9. First, the ordinary approach taken by the common law as to matters of proof is reflected in two propositions endorsed by a unanimous High Court (in an insurance context) in Wallaby Grip Limited v QBE Insurance (Australia) Ltd [2010] HCA 9; 240 CLR 444 at [36]: the "legal burden of proof arises from the principle: [h]e who alleges must prove" and the "incidence of the legal burden of proof can therefore be tested by answering the question: [w]hat does each party need to allege?"
10. That reflects what Walsh JA said in Currie v Dempsey (1967) 69 SR (NSW) 116 at 125: "[T]he burden of proof in the [sense of establishing a case], lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g., if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an 'avoidance' of the claim which, prima facie, the plaintiff has."
11. Here it is the patient who needs to allege fraud so as to vitiate his or her consent. On ordinary principles, the legal burden to do so rests with the patient.
12. Secondly, if that were not so, how is the fraud to be disproved? I am persuaded by the same considerations which were decisive for Mason CJ and Gaudron J, with whom in this respect Brennan J agreed, in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 285. The question there was determining the party who bore the onus to establish fraud in comparable circumstances (a finding of fraud would defeat a limitation defence). Their Honours said: "The substance of the proviso to s 69(1) of the Act is to allow a limitation defence to be defeated. This is in itself a consideration of substance for placing the onus of proof on the party seeking to defeat the defence. … It is also a significant matter of substance that it is fraud that may defeat the defence. It has long been recognized that fraud may take a variety of forms and is, on that account, incapable of precise definition. … The variety of matters which may constitute fraud prevents any construction of the proviso to s 69(1) of the Act which would require a defendant to negate fraud. That variety effectively deprives a party who may or may not have acted fraudulently from ascertaining precisely what must be negatived. Indeed, it is this feature of fraud which underlies the rule of practice, now embodied in Pt 15, r.13 and Pt 16, r.2 of the Rules, that fraud must be pleaded specifically and with particularity. … And the same feature necessitates that the proviso be construed as requiring a plaintiff to establish fraud to defeat a limitation defence" (citations omitted).
13. Thirdly, I do not regard what Basten JA wrote in Dean v Phung at [64] as meaning that the legal onus lies on a practitioner against whom fraud sufficient to vitiate the prima facie consent of his or her patient is alleged to displace it. Dean v Phung was decided on the basis of a concession that the plaintiff accepted that he bore the onus of negativing consent: see at [60]. Most importantly, a natural reading of his Honour's reasons (especially "at least where a real issue has been raised") is that they refer to an evidentiary, rather than a legal, burden, in the senses distinguished by J D Heydon, Cross on Evidence, LexisNexis, 10th Aust ed 2015, at [7005]ff.
14. Accordingly, whatever the more general position as to onus of proof be (see (e) below), I consider that the legal burden remained at all times for Ms Johnston to prove that Ms White's treatment bore no therapeutic purpose, if that was how an absence of valid consent were to be established. To the extent that his Honour approached the matter differently, there was error. To the extent that Ms Johnston sought to defend the judgment by reference to onus, I reject her submission. There was no evidence to support a finding that none of Ms White's treatment was therapeutic or that Ms White's purpose was wholly non-therapeutic, so as to shift an evidentiary burden to Ms White.
15. That is sufficient to resolve the whole of the appeal. However, having considered the position in accordance with Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 at [12], and in deference to the quality of the submissions and the importance of the issues, I will address the remaining two grounds of the appeal. Before doing so, I will seek to explain my views on the broader question of the onus of proving consent. I do so because those views provide further support for the view I have reached on the question of onus.

(e) The broader question of the onus of proving consent

1. Must the patient allege and prove that there was an absence of valid consent, or must the medical practitioner allege and prove that there was valid consent? There is no binding authority on the question. The uncertain state of authority was noted by this Court in Cusack v Stayt [2000] NSWCA 244; 31 MVR 517 at [13]. Basten JA observed in Dean v Phung at [59] that there had been "remarkably little discussion" in Australian case law on the point. The uncertain state of the law is illustrated by Professor Fleming's ambivalence. He acknowledged the view, even after Marion's case, that consent was not a defence, because arguably "lack of it is of the very gist of assault and battery": J Fleming, The Law of Torts, 9th ed LBC Information Services 1998, p 86 (same passage in 10th ed, 2011, p 90). However, he also said that: "All the same, consistent with a person's paramount right to bodily security, consent should be a matter of defence, with the burden of proof on the defendant, in trespass to the person as it is in trespass to land or goods."
2. The most careful Australian analysis of which I am aware, and which evidently influenced Professor Fleming, is that of McHugh J in Secretary, Department of Health & Community Services v JWB and SMB (Marion's case) [1992] HCA 15; 175 CLR 218 at 310-311: "In England, the onus is on the plaintiff to prove lack of consent. That view has the support of some academic writers in Australia, but it is opposed by other academic writers in Australia. It is opposed by Canadian authority. It is also opposed by Australian authority: Hart v Herron (1984) Aust Torts Reports 80-201; Sibley v Milutinovic (1990) Aust Torts Reports 81-013. 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 Common Law Procedure Act 1852 also required any 'defence' of leave and licence to be pleaded and proved. However, those who contend that the plaintiff must negative consent in an action for trespass to the person deny that consent is a matter of leave and licence. They contend that lack of consent is an essential element of the action for trespass to a person. I do not accept that this is so. 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" (most footnotes omitted).
3. McHugh J dissented in the result, and the other members of the Court did not address the point. Nevertheless, his Honour's reasons and conclusion are to be accorded great respect. They are regularly cited in textbooks as reflecting the law in Australia: see for example M Jones, Medical Negligence, Sweet & Maxwell, 4th ed 2008, p 559 ("[in] Australia consent is undoubtedly regarded as a defence").
4. However, I respectfully disagree with the reasoning. My disagreement rests principally on the weight I give to a line of authority, commencing with Christopherson v Bare (1848) 11 QB 473; 116 ER 554, to which McHugh J did not refer. I also discount the two Australian decisions to which McHugh J referred. Finally, at the level of principle, I do not regard a person's general right to bodily integrity as speaking to the narrow question of onus.
5. That said, I emphatically agree with the approach taken by McHugh J, which is to place the question in its historical perspective, focussing on the time when the modern law of torts was being formulated. As Gageler J said in Australian Financial Services and Leasing Pty Limited v Hills Industries Ltd [2014] HCA 14; 88 ALJR 552 at [107], by reference to Windeyer J's judgment in Attorney-General (Vict) v The Commonwealth [1962] HCA 37; 107 CLR 529 at 595: "The point is not to look back to 'an assumed golden age' but rather 'to help us to see more clearly the shape of the law of to-day by seeing how it took shape'."
6. Joseph Raz, echoing Selden, has referred to this "Janus-like aspect of interpretation", which "faces both backward, aiming to elucidate the law as it is, and forward, aiming to develop and improve it": J Raz, Between Authority and Interpretation, Oxford University Press, 2009, p 354, and see S McLeish, "Challenges to the Survival of the Common Law" (2014) 38(2) Melbourne University Law Review 818 at 822. So to do is an essential aspect of the curial function, which seeks at the same time to maintain legal continuity as well as a capacity for incremental development and innovation. And an historical perspective draws upon a rich resource of legal analysis, which ought not lightly to be disregarded. After all, as Lord Simonds LC acknowledged in Chapman v Chapman [1954] AC 429 at 444, "[i]t is even possible that we are not wiser than our ancestors", although contemporary law may operate in different conditions from those to which earlier judgments were directed.
7. But before undertaking that historical review, it is convenient to say something immediately about the two Australian authorities to which McHugh J adverted. One, Sibley v Milutinovic (1990) Aust Torts Reports 81-013, is a first instance decision which turned on the onus of establishing consent in an action for trespass to the person in a soccer game. There are three matters which detract from its authority.
8. First, as the trial judge, Miles CJ, observed at the outset, there was a certain "inequality of arms" in the courtroom: the successful plaintiff was represented by experienced counsel while the defendant was unrepresented.
9. Secondly, although it is plain that the same principles apply to medical practitioners and dentists, I see no necessary reason why the question of onus need be the same in an alleged trespass to the person arising out of a contact sport (such as Sibley v Milutinovic) as in a claim by a patient against a medical practitioner. The relationship between sporting competitors is utterly different from that between patient and practitioner. For one thing, it is symmetric, each subjecting himself or herself to the risk of injury; for another, there is nothing like the swathe of common law, equitable, ethical and statutory norms regulating all aspects of the doctor/patient relationship, reflecting its profoundly asymmetric nature. I respectfully agree with Lord Mustill's reasons in R v Brown [1992] 2 UKHL 7; [1994] AC 212 at 266: "Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own."
10. Thirdly, Miles CJ rejected arguments based on principle and followed a statement by Fox J in McNamara v Duncan (1971) 26 ALR 584 at 588 that consent is a defence. There is nothing wrong with the formulation by Fox J, but, with respect, it does not support any conclusion about the elements of battery, or onus of proof. This warrants some elaboration, which will be given below, because it explains a large source of confusion in legal reasoning in this area. Sibley v Milutinovic is far from the only decision in which reference is made to consent being a "defence". Such decisions do not bear materially on the question of legal or evidentiary onus, unless it is clear that "defence" is being used in a precise technical sense.
11. James Goudkamp has drawn attention to the lack of precision in the language of "defence", on the opening page of Tort Law Defences (Hart Publishing, Oxford, 2013): "The word 'defence' bears numerous meanings in the tort law context, and a considerable amount of confusion has been spawned by the widespread failure of legal scholars, judges and legislators to indicate what they mean by the word. This situation is a significant impediment to clear thinking in relation to tort law generally."
12. The imprecise use of the language of "defence" was likewise noted by Heydon J in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [55].
13. The other Australian authority to which McHugh J referred in Marion's case was Hart v Herron (1984) Aust Torts Reports 80-201, where "[b]oth counsel agreed that an absence of consent was part of the gist of the action in a count for assault. They disagreed as to who bore the onus." Fisher J directed a jury that it was for the defendant to do so. This decision seems at odds with basic principle, if "onus" is taken as a reference to legal onus. If as was agreed absence of consent was of the gist of the action, then the plaintiff would fail if he did not show absence of consent. It seems that Fisher J's statement, noting that it was made in the context of a direction to the jury, is best read as referring merely to an evidentiary burden as relevant to the particular facts of that trial. On that reading, it says nothing on the question of legal onus.
14. In order to appreciate, by way of contrast, the force of the reasoning in Christopherson v Bare, as indicated above it is necessary to be more precise about that ambiguous word "defence". In Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 at [8], Brennan CJ and McHugh J said "defences are either by way of denial or confession and avoidance". A denial by a defendant of an element of the tort does not introduce any new issue into the proceeding. On the other hand, a defendant may admit the matters alleged by the plaintiff, but introduce new allegations which, if established, will defeat the plaintiff's claim (such as a limitation defence, necessity, or self-defence). The essential difference is between a plea which attacks an element of the cause of action, or by the positive assertion of some further matter which, if accepted, will exonerate the defendant.
15. An element of a cause of action may, of course, be negative in substance, and there is no difficulty in requiring a plaintiff to bear the legal burden of proving a negative. Walsh JA had said so in Currie v Dempsey (see above). The leading case remains Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 457, where Bowen LJ said, of an action for malicious prosecution where the plaintiff must prove that the prosecutor lacked reasonable or probable cause, that "[i]f the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff". Other examples are given by Campbell J in Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 at [170]-[173], and by Bell and Gageler JJ in Henderson v Queensland [2014] HCA 52 at [33] and [90].
16. Commonly, a modern defendant will both deny (or not admit) some allegations, and advance further allegations designed to defeat the plaintiff. It was not always thus.
17. Formerly, there was a crisp and essential distinction between a denial (known as a traverse) and a plea of confession and avoidance: a defendant had to elect between them. "Every plea in confession and avoidance at common law had to 'give colour' - that is, it had to admit the apparent right of the plaintiff and plead new matter that defeated that right": Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [77] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Professor Holdsworth said that "as the litigant must either traverse or confess and avoid, a plea which attempted to do both was bad": History of English Law, vol IX, p 294; see also p 269. As Goudkamp states (at p 3) "The word 'confession' marked the fact that defendants could not, in earlier times, offer a denial and a defence. Today, defendants do not need to elect between these pleas. They can simultaneously deny the claimant's allegations and appeal to a rule that circumvents their legal effect. One downside of this change is that it removed an incentive to distinguish rigorously between denials and defences …"
18. Thus, before the enactment of s 80 of the Common Law Procedure Act 1852 (UK) and its colonial counterparts, it was essential to distinguish between a mere traverse, and a confession and a special plea of confession and avoidance. If a defendant made a special plea which was in truth a mere traverse, it was bad in law, and a plaintiff could demur to it, in which case the question of law was determined by the court en banc.
19. In the Hilary Term of 1834, new rules of pleading were introduced which, as Holdsworth put it, tended to make "special pleading compulsory where it had before been only optional": W S Holdsworth, "The New Rules of Pleading of the Hilary Term, 1834" (1923) 1 CLJ 261. The new rules were described by Gummow J in Scott v Davis [2000] HCA 52; 204 CLR 333 at [181] as representing "a new drive … for scientific accuracy". A primary effect was to restrict the scope of the general issue (which, in the case of trespass, was a plea of "not guilty"). Speaking generally, motivated by the unfairness faced by a plaintiff who was met with a general denial and would not know the real case the defendant would advance, the amendments required defendants in many cases to make a special plea. "Previously the defendant had been allowed under the general issue to set up 'almost any defence he chose', whereby 'the object of having pleadings at all was to some extent defeated'": Scott v Davis at [181] (Gummow J). It was eventually perceived that the rules went too far, and were diluted by the Common Law Procedure Acts of 1852, 1854 and 1860, before being replaced by Judicature pleading in 1875. See P Polden, "The New Pleading Rules of Hilary Term 1834" in Oxford History of English Law, vol XI, pp 585-589.
20. This context made the rejection of the special plea of consent in an action for assault in Christopherson v Bare (1848) 11 QB 473; 116 ER 554 all the more remarkable.
21. In Christopherson, the plaintiff sued the defendant for assault and false imprisonment. The defendant's plea was that he did so by the leave and licence of the plaintiff. The plaintiff demurred to the plea: "For that the plaintiffs having given leave and licence to commit the trespasses cannot in law be a justification of the same. And for that the plea amounts to an argumentative plea of not guilty."
22. Counsel for the plaintiff submitted: "Leave and licence cannot be pleaded by way of confession and avoidance of an assault or imprisonment. A party cannot be assaulted or imprisoned by his own consent …"
23. The plaintiff was saying that the special plea of leave and licence was bad, because it amounted to no more than a denial of an essential element of the action, which needed to have been traversed.
24. The demurrer was unanimously upheld by the Court of Queen's Bench, sitting en banc. Lord Denman CJ said that "It is a manifest contradiction in terms to say that the defendant assaulted the plaintiff by his permission." Patteson J said that "An assault must be an act done against the will of the party assaulted and therefore it cannot be said that a party has been assaulted by his own permission". Coleridge J said that "If the plea had been only Not guilty, the defendant might have shewn that the act was done in the course of sport between the parties, and by the plaintiff's leave. This plea is therefore specially demurrable." Wightman J agreed.
25. Thus Christopherson v Bare is a decision squarely on point. It rejected a special plea of confession and avoidance, at a time when special pleading was especially favoured by the rules at common law. It unanimously and unambiguously held that the absence of consent was essential to a plaintiff's case. To say that a plaintiff consented to an assault was a denial of an essential element of the tort, and not a defence by way of confession and avoidance.
26. I acknowledge that if Christopherson v Bare had been ignored throughout the common law world, its belated rediscovery would provide scant reason to depart from what had become settled law. One cannot condemn as a "mistaken aberration" a century or more of authority merely "because at some earlier stage in the history of our law a different rule prevailed", as Windeyer J observed in Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460 at 496. But it has not been ignored. To the contrary, Christopherson v Bare has founded a distinguished line of more modern authority.
27. Christopherson v Bare was stated as orthodox in the third edition of Bullen and Leake: E Bullen and S Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law, Stevens and Sons, 3rd ed 1868 at 740 and 792. It was reproduced, in its entirety, in James Barr Ames' Select Cases on Torts, Cambridge, Massachusetts, 1874 at 5-7. Holmes J influentially relied upon the decision in Ford v Ford 143 Mass 577 at 578 (1887): "the absence of lawful consent is part of the definition of an assault, and a license cannot be pleaded specially at common law, but must be proved under the general issue."
28. Relying on Ford v Ford, Prosser and Keeton in turn wrote that consent was "not, strictly speaking, a privilege, or even a defense, but goes to negative the existence of any tort in the first instance": W Keeton et al, Prosser and Keeton on Torts (5th ed, West Publishing Co 1984), p 112.
29. Returning to England, Halsbury's Laws of England has continuously cited Christopherson v Bare as authoritative: see 1st ed 1913, vol 27 para 1537 and now 5th ed 2010, vol 97, paras 524 and 528. Sir Frederick Pollock, than whom no one did more to formulate the Anglo-Australian law of torts, wrote of the decision: "Under the old system of pleading this was not a matter of special justification, but evidence under the general issue, an assault by consent being a contradiction in terms: Christopherson v Bare (1848) 11 QB 473." See F Pollock, The Law of Torts (5th ed 1897 p 208 and 12th ed 1923 p 216).
30. True it is, as McHugh J observed in Marion's case, that it had been held that a claim of consent was a plea of "leave and licence" in the case of trespass to land: Kavanagh v Gudge (1844) 7 Man & G 316; 135 ER 132, Wood v Manley (1839) 11 Ad & E 34; 113 ER 325 and Plenty v Dillon [1991] HCA 5; 171 CLR 635 at 647, as well as in defamation. But there is no reason for every element of those different torts to be the same as an action for trespass to the person. As much was recognised by Bullen & Leake, who explained the different position in relation to Kavanagh v Gudge and Wood v Manley in the case of trespass to land immediately after stating that for actions for assault and probably false imprisonment the defence may be established under the general issue, citing Christopherson v Bare: see at p 740. I am certain that McHugh J would not have relied upon the rules applicable to other torts by analogy had his Honour been taken to Christopherson v Bare which was squarely on point.
31. As McHugh J observed in Marion's case, the authorities cannot all be reconciled. The law of Canada in this respect has diverged from that of England, in light of what was said in Reibl v Hughes [1980] 2 SCR 880 at 890, which has been treated as binding in that country. Modern Australian commentators who have considered the question with care are likewise divided: see especially articles by Dr S K N Blay, "Onus of Proof of Consent in an Action for Trespass to the Person" (1987) 61 ALJ 25, and Professor F A Trindade, "Intentional Torts: Some thoughts on Assault and Battery" (1982) 2 OJLS 211 at 228-229. However, the orthodox English decision appears still to be Freeman v Home Office (No 2) [1984] QB 524. McCowan J's statement at 539 that "the burden of providing absence of consent is on the plaintiff" is substantially in line with one hundred and forty years of authority, although some doubts have been expressed: see for example Ashley v Chief Constable of Sussex Police [2006] EWCA Civ 1085; [2007] 1 WLR 398 at [31]. The modern academic commentator who has, in my view, considered the question most carefully, is of the same view: "It is tentatively concluded, therefore, that to plead consent in proceedings in trespass is to offer a denial rather than a defence": J Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013) p 67.
32. If it be the case, as I think Christopherson v Bare establishes it was, that an absence of consent was of the gist of assault and battery, such that the legal burden of proving so is for the plaintiff, has the law changed? Alternatively, should it change? I do not consider that the law has changed or that it should.
33. The fact that the law protects patients whose consent is wrongly procured by medical practitioners does not mean that every contestable aspect of their liability should be decided favourably to the patient. The law is much more nuanced. As much is plain from the two matters mentioned at [69]-[73] above. The position resembles that to which Gleeson CJ referred in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [6]: "[T]he underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose." So too here. Just because an underlying purpose of the law of assault and battery in its application to the relationship between patient and medical practitioner is to vindicate a patient's right to bodily integrity, it does not follow that something as specific as the onus of establishing consent should be resolved favourably to the patient.
34. Moreover, there are countervailing considerations. One is historical continuity. It is no small thing to alter a unanimous decision of the Court of Queen's Bench, which has attracted the support of Ames, Holmes, Pollock and Bullen & Leake as well as more modern courts and commentators. That is not to say that nothing must be done for the first time, but it is usual to identify either a change in economic or social circumstances or some other unsatisfactory or anomalous feature before changing the law: see Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 56 NSWLR 298 at [21]-[27] (Spigelman CJ).
35. Another countervailing consideration is that, bearing in mind that an assault by a medical practitioner may be simultaneously tortious and criminal, it is desirable for there to be a measure of coherence between the criminal and civil law. It has been said that the criminal law of assault and battery "reinforces tort law protection of the right to bodily integrity": R Hardcastle, Law and the Human Body (Hart Publishing, Oxford, 2007), p 19. Suppose a medical practitioner indecently or sexually assaults his or her patient, having procured a consent by fraud. A prosecutor at a criminal trial has long had to negate consent: R v Donovan [1934] 2 KB 498; R v Lynch (1930) 30 SR NSW 420. It does not strike me as jarringly wrong for a civil plaintiff to be obliged to discharge the same burden (albeit, only to the civil standard) in order to establish a tortious assault and battery.
36. Finally, it is important to appreciate that what is at stake is merely a question of legal onus. In most cases, it should not present any substantial obstacle to the patient to bear the legal burden of establishing that he or she did not consent. Indeed, the question is likely most to matter in cases where the plaintiff is incapacitated or has died, or in a case such as the present where the case ran at trial diverged substantially from that pleaded. But against this, in any case where a question is properly raised as to the validity of a patient's consent, the stakes are very high for the medical practitioner, and Blatch v Archer inferences if he or she fails to give evidence will loom large. In any case where there is a proper foundation for the allegation to be made, it is unlikely that the legal onus borne by the patient will be determinative.
37. Those matters further reinforce my conclusion that, at least in the case where a patient's consent is said to have been rendered invalid by reason of the fraud, or conduct tantamount to fraud, the onus remains with the patient to establish fraud. If what I have outlined above be correct, then the broader position is straightforward: a patient who sues in assault and battery in all cases bears the legal burden of establishing an absence of consent on his or her part, although that proposition is undeniably contrary to what has been said by McHugh J and Basten JA. I should make it clear that my views in section (e) of these reasons have been reached without the benefit of full argument on the point and are necessarily therefore preliminary. None of the foregoing is to deny that in many cases where evidence supportive of fraud by the medical practitioner has been adduced, the evidentiary burden will be borne by the medical practitioner.

(f) Civil Liability Act 2002 (NSW), s 3B

1. One other matter should be noted. In order to make the awards of damages which he did, it was necessary for the primary judge to apply s 3B(1)(a) of the Civil Liability Act. His Honour did not mention s 3B, and appears to have proceeded on the basis that any intentional tort was sufficient.
2. The question posed by s 3B(1)(a) has two limbs: it is whether the proceeding involved the "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death …". No doubt Ms White's conduct was intentional, but it was also necessary to establish that the dental procedures were performed "with intent to cause injury". As is noted in D Villa, Annotated Civil Liability Act 2002 (NSW), Lawbook Co, 2nd ed 2013, p 52, it does not follow that because an intentional tort is alleged and made out that s 3B applies. "[I]t is not a necessary element of assault (and battery) that the defendant intended to injure the plaintiff": Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743; it is the act and not the injury which must be intentional.
3. The primary judge made no such finding expressly. For the reasons already given, the evidence could not sustain any implicit finding that Ms White intended to cause injury.

Was the tendency evidence properly admitted?

1. The second ground of the appeal independently challenged the admission as "tendency evidence" of the affidavit of Ms Hynes, the statement of Ms Veza, and the Queensland certificate of conviction and other related material. The primary judge said in his reasons for judgment that he had regard to this evidence.
2. Sections 95 and 97 of the Evidence Act 1995 (NSW) relevantly provide as follows: "95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. …"
3. Section 97 does not preclude the admissibility of evidence per se. It makes evidence inadmissible for a particular purpose, to prove a "particular matter" (the language is that of s 95), namely, that a person has a tendency to act in a particular way or to have a particular state of mind. Section 97 must be read with ss 95 and 94, as the High Court said in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; 87 ALJR 668 at [30]. None of the exceptions in s 94 are presently relevant. Section 95 constrains the use which may be made of evidence even if it is relevant and admitted and available to be used for another purpose. The importance of s 95 is less widely appreciated than it deserves to be, although it was noted by Ireland J in R v AH (1997) 42 NSWLR 702 at 708.
4. The importance of the purpose of a tender appears not merely in s 95, but also in the definitions of "tendency evidence" and "coincidence evidence". Section 98, which deals with the latter, very substantially corresponds to s 97, and ss 100 and 101 apply identically to both classes of evidence. The Dictionary defines "tendency evidence" as meaning "evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection." As Simpson J noted in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [135], the purpose of a party's tender - or, at least, that party's primary purpose - is an essential element in the operation of the rules governing coincidence evidence; the same is true of tendency evidence.
5. The restrictions on tendency evidence thus circumscribe a particular mode of reasoning. As was said in Elomar v R [2014] NSWCCA 303 at [359] by Bathurst CJ, Hoeben CJ at CL and Simpson J: "Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings."
6. If evidence is relevant only for inferential tendency reasoning, then it is inadmissible unless the protections in s 97(1) of notice and significant probative value are satisfied. If evidence is relevant for some other purpose as well as tendency reasoning, then s 95 ensures that unless the protections in s 97(1) are satisfied, the evidence may only be used for the non-tendency purpose. In either case, the need to assess "significant probative value" makes it necessary to identify with some precision what the tendering party proposes to establish by the evidence: see Elomar v R [2014] NSWCCA 303 at [348].
7. The affidavit of Ms Hynes, the statement of Ms Veza and the Queensland certificate of conviction and related materials were "tendency evidence". They were tendered for no other purpose than to support a reasoning process that Ms White had a tendency to act in a particular way. It follows that they were inadmissible unless s 97(1) of the Evidence Act 1995 (NSW) was complied with.
8. "Probative value" is defined in the Dictionary to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". But s 97 requires the Court to consider whether the evidence has significant probative value.
9. The tendency proffered was "to render bills to government utilities without providing treatment for them". The evidence was used by the primary judge for a different purpose from that for which it was tendered, and a different purpose from that which had been assessed by the primary judge as possessing significant probative value. The primary judge's finding was that the work performed by Ms White was performed for the purpose not of assisting Ms Johnston, but of enriching Ms White. Nevertheless, a great deal of work was done. Any tendency Ms White may have to fraudulently claim for work she never performed is not materially probative of the different issue, namely, whether the significant amount of work which Ms White did perform was not done for any therapeutic purpose. Even if it be accepted that a person with a tendency to lodge false claims might be more likely to perform work with no therapeutic purpose, on no view is the tendency evidence significantly probative of the issue. It is accordingly not necessary to say anything of the division between New South Wales and Victorian appellate decisions on this issue: see Velkoski v The Queen [2014] VSCA 121 at [164].
10. The primary judge erred in admitting the evidence as significantly probative of one "particular matter" (a tendency to charge for work never performed) and then relying upon the evidence for a different purpose (a tendency to perform wholly unnecessary work with no therapeutic purpose). There was error in using the tendency evidence for a different purpose from that for which it had been adduced, to assist in a finding that none of the work performed had a therapeutic purpose. To do so was contrary to ss 95 and 97, as well as being procedurally unfair (and not only to Ms White; Ms Johnston may have wished to be heard against his Honour taking that course: cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [133]).
11. Ms White separately challenged the discretionary decision by the primary judge to dispense with the need to give notice. As will be apparent from the foregoing, "tendency evidence" may be adduced for a number of purposes, and the precise form of inferential reasoning sought to be advanced is apt to bear on whether the proposed tender has significant probative value. The notice required under s 97(1)(a) provides not merely a measure of fairness to the other party, but will assist the Court to assess the probative value. As was said in Bryant v R [2011] NSWCCA 26; 205 A Crim R 531 at [50] (Howie AJ, McClellan CJ at CL and Simpson J agreeing): "The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence." However, in light of the success of Ms White's primary submission, it is not necessary to address this challenge any further.

Were exemplary damages properly ordered?

1. Because the verdict must be set aside, this ground does not arise on the appeal. Nor can it arise on a re-hearing, for exemplary damages are not available for Ms Johnston's undetermined negligence action: Civil Liability Act 2002 (NSW), s 21 (that is so irrespective of the meaning of "negligence" in this section, as to which see State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 at [200]-[203], an issue as to which it is not necessary to express a view). It may therefore be dealt with more concisely than might otherwise be the case.
2. The applicable principles were conveniently summarised by Sackville AJA in State of New South Wales v Zreika [2012] NSWCA 37 at [61]-[64]. The objectives of punishment, deterrence and condemnation which inform an award of exemplary damages are distinct from the considerations applicable to compensatory damages. Even so, it is necessary to determine compensatory damages (including aggravated damages) before deciding whether or not a further award of exemplary damages is warranted, and, if so, its amount. This is well-settled law: see New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [34]; State of New South Wales v Radford [2010] NSWCA 276; 79 NSWLR 327 at [97] and Zreika at [63]-[64].
3. Yet the primary judge determined exemplary damages before determining aggravated damages, and without reference to the amounts of general and aggravated damages awarded. That was wrong. The same error was corrected in Zreika at [70] (emphasis in original): "[A] fair reading of his reasons does not indicate that the award of exemplary damages took into account the sums awarded as compensatory and aggravated damages. The judgment does not expressly consider whether an award of $100,000 for exemplary damages was necessary or appropriate having regard to the considerable sums awarded for compensatory and aggravated damages. Indeed, his Honour assessed aggravated damages after having arrived at a figure of $100,000 for exemplary damages. I therefore conclude that his Honour erred in his approach to the assessment of exemplary damages."
4. Moreoever, the reasons of the primary judge, read as charitably as may be, were to the effect that the facts in Dean v Phung were "very similar". Here too his Honour erred, for in large measure the cases were very different.
5. First, the treatment in Dean was much more invasive, and much more expensive: the dentist charged $73,640, an amount almost tenfold greater than the total of the invoices rendered by Ms White. There is no necessary arithmetic connection between compensatory and exemplary damages; indeed, the latter may exceed the former: see Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335 at [43]. However, the fact that Ms White only billed some $8,000 for work performed on Ms Johnston discloses a material difference in scale of the two cases.
6. Secondly, Mr Dean suffered minor injuries to his front teeth, following which Dr Phung carried out root canal therapy and fitted crowns on all of his teeth, over 53 consultations. Unsurprisingly, the expert evidence in Dean was much stronger: it was "inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform" (see at [18]). Basten JA summarised it at [22]: "The 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." In contrast, the expert evidence in the present case went no higher than that Ms White was negligent and that some of the invoiced treatments had not been carried out.
7. Thirdly, Dr Phung continued in practice until at least the date of the trial (see at [81]). Ms White no longer practises. It follows that questions of personal deterrence played a relatively small role.
8. Fourthly, questions of a defendant's financial circumstances are relevant to exemplary damages: see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448 at 461 (Gibbs CJ) and 472 (Brennan J). The unchallenged evidence of Ms White is that "due to my severe financial hardship" she represented herself. Again, that is very different from Dr Phung, where there was no such evidence: see at [81].
9. In short, the reasons of the primary judge disclose error of principle in failing to determine compensatory damages before turning to exemplary damages, and also material error of fact in regarding Dean v Phung as relevantly comparable for this purpose. Even had the appeal otherwise failed, I would have set aside the award of exemplary damages.

Orders

1. For those reasons, I propose that the appeal be allowed, the judgment and orders dated 31 July 2013 set aside, and the matter remitted to the District Court for retrial, confined to the question of negligence. I cannot accept Ms Johnston's oral submission that this Court could itself determine the negligence action. The absence of a notice of contention would make doing so procedurally unfair to Ms White. Moreover, there was a clash between the plaintiff's expert evidence and that of Ms White on the question of breach, which this Court cannot resolve.
2. The respondent (who sought to defend all aspects of the decision at first instance) must pay the appellant's costs of the appeal, but should be given a certificate under the Suitor's Fund Act 1951 (NSW) in respect of those costs. The costs of the trial at first instance should be in the discretion of the judge to whom the matter is remitted.
3. This appeal was originally listed for hearing on 16 December 2014, the day when senseless nihilism came to Sydney. It could not be heard that day. It was heard as soon as possible thereafter, on the last day of term, in circumstances which must have tested both counsel. Their professionalism was exemplary. I wish to add that Ms Phillips' advocacy on the part of her client was in the finest traditions of the Bar, and displayed a clarity, precision, fairness and restraint recalling that of Katrina Dawson, who appeared regularly and without a leader in this Court and whose time as a barrister was far too brief.
4. I propose these formal orders: 1. Appeal allowed. 2. Set aside the judgment and orders of the District Court dated 31 July 2013. 3. Remit the proceedings to the District Court for retrial, confined to the claim in negligence. 4. Order that Ms Johnston pay Ms White's costs of the appeal. 5. Grant a certificate under the Suitor's Fund Act 1951 (NSW) to Ms Johnston in respect of the costs of the appeal.

Amendments 21 May 2015 - In [29], "[a]" inserted. In [32], "[sic]" inserted. In [39] "was" deleted, "were" inserted. In [61], "[48]" deleted, "[49]" inserted. In [77], "was" deleted, "were" inserted. In [90], "(in liq)" inserted. In [91], "an" deleted, "a" inserted. In [99] "(Advance) at p 5" deleted, "818 at 822" inserted. In [99], "Viscount Simonds" deleted, "Lord Simonds LC" inserted. In [103], quotation marks deleted. In [110], page reference to 269 inserted. In [117], "not" deleted, "Not" inserted. In [120], reference to 791 deleted, 792 inserted. In [124], "light with" deleted, "light of" inserted. In [146], "State of" inserted before "New South Wales". 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: 21 May 2015