Dental treatment & tendency evidence: Trespass or Negligence?

Reasons for judgment were published yesterday in an important decision of the NSW Court of Appeal: White v Johnston [2015] NSWCA 18, per Leeming JA with the agreement of Barrett & Emmett JA.

At trial it was held that the dentist had no therapeutic purpose in performing the treatment and failed to prove that the patient’s consent was valid. Damages were assessed for trespass, not applying the constraints of the Civil Liability Act 2002 (NSW).

The trial judge relied in part on evidence of a previous conviction indicating that the dentist had fraudulently obtained payments for services never rendered as proving a tendency to perform unnecessary work.

The appeal was allowed, with the matter to be returned to the court below for retrial in respect of the negligence claim.

The Court of Appeal’s reasons included findings that:

  • Where a medical practitioner is solely motivated by an unrevealed non-therapeutic purpose, the patient’s consent is not valid.
  • The onus lies on the patient to establish fraud.
  • The evidence of other malpractice by the dentist was wrongly admitted, because it lacked significant probative value for the different purpose of establishing that none of the work had a therapeutic purpose.

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