White v Johnston [2015] NSWCA 18

White v Johnston [2015] NSWCA 18

The legal and evidentiary burden to prove absence of valid consent to medical procedures, in circumstances where fraud or sole non-therapeutic purpose is alleged, lies with the patient. The evidence did not establish that all of Ms White's treatment lacked therapeutic purpose; reliance on tendency evidence was erroneous. Exemplary damages must be determined only after compensatory damages and require proper foundation. The appeal was allowed, judgment set aside, and retrial ordered limited to negligence.

Parties
Appellant: Jasmin White; Respondent: Ruth Johnston
Jurisdiction
Australia
Judgment Date
18 February 2015
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; judgment and orders set aside; retrial ordered confined to claim in negligence.
Legal Topics
Assault and Battery, Medical Consent, Negligence, Exemplary Damages, Tendency Evidence
Tort Law Medical Law Evidence Law Assault and Battery Medical Consent Negligence Exemplary Damages Tendency Evidence

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Parties

Jasmin White

Appellant

Ruth Johnston

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether patient's consent to dental treatment was invalid due to sole non-therapeutic purpose
  2. 2 Whether the onus of proof of fraud or absence of consent lay with the patient or practitioner
  3. 3 Admissibility and use of tendency evidence of other malpractice

Ratio Decidendi

The legal and evidentiary burden to prove absence of valid consent to medical procedures, in circumstances where fraud or sole non-therapeutic purpose is alleged, lies with the patient. The evidence did not establish that all of Ms White's treatment lacked therapeutic purpose; reliance on tendency evidence was erroneous. Exemplary damages must be determined only after compensatory damages and require proper foundation. The appeal was allowed, judgment set aside, and retrial ordered limited to negligence.

Court Disposition

Appeal allowed; judgment and orders set aside; retrial ordered confined to claim in negligence.

Orders

  • Appeal allowed.
  • Set aside the judgment and orders of the District Court dated 31 July 2013.