Dean v Phung [2012] NSW CA 223



[Information extracted from headnote to judgment which can be found here.]

On 19 December 2001 Tod Dean (the appellant) was injured in the course of his employment when a piece of timber struck him on the chin causing minor injuries to his front teeth. His employer arranged for him to see the respondent, a dental surgeon. Over a period of a little more than 12 months, the dentist carried out root canal therapy and fitted crowns on all of the appellant’s teeth. The treatment was undertaken during 53 consultations at a cost of $73,640.

Mr Dean commenced proceedings in the Common Law Division against the dentist for negligence and trespass to the person. He alleged that the treatment was unnecessary and ineffective, and that the dentist must have known that to be so. He sought exemplary damages. The dentist admitted liability in negligence but, in relation to trespass to the person, relied on a defence of consent.

Mr Dean was successful in his claim, however, the trial judge held that if the Civil Liability Act applied to the claim (which places limitations on the compensation that may be awarded in negligence claims), the damages available to Mr. Dean would be reduced and exemplary damages would be unavailable. On 30 June 2011 Hislop J found for the appellant in the sum $1,388,615.20. However, his Honour found that the Civil Liability Act applied to the claim and that exemplary damages were therefore unavailable.

Mr Dean appealed to the NSW Supreme Court of Appeal arguing:

(i) the Civil Liability Act did not apply to his claim (the trial judge had not adequately focused upon his claim in trespass to person);

(ii) that there was no valid consent to the dentist, and

(iii) that he was entitled to exemplary damages.


The Court held, allowing the appeal:

In relation to whether the Civil Liability Act applied to the appellant’s claim

(per Basten JA, Beazley and Macfarlan JJA agreeing)

1. Section 3B of Civil Liability Act was satisfied if the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary: [30]

2. The dentist probably did not believe at the time that he carried out the treatment that it was necessary given the injury suffered by the appellant: [47]

In relation to whether a defence of consent was available to the dentist

(per Basten JA, Beazley JA agreeing)

3. A practitioner’s honest and reasonable belief that the patient has consented is not a defence to a claim in tort. The absence of consent may flow from the incapacity of the patient, innocent misrepresentation or maladministration by the practitioner or hospital, or fraud on the part of the practitioner or other person responsible for obtaining consent: [58]

4. The appellant did not consent to the proposed treatment, because it was not in fact treatment necessary for his condition because it was not capable of constituting a therapeutic response to the patient’s condition. As a result, the treatment constituted a trespass to the person: [65]-[66]

per Macfarlan JA)

5. Consent to the penetration of one’s body for the purpose of medical treatment is not consent for other purposes such as sexual gratification or financial gain. The nature and character of the act of penetration may vary with the purpose for which it is performed: [93]

6. If the practitioner’s state of mind is to be ignored negligent advice that treatment is required will result in a trespass despite the practitioner’s bona fide belief in the necessity for treatment. This would avoid the limitations on recovery of damages imposed by the Civil Liability Act and expose the practitioner to criminal charges for assault: [95]

(per Basten JA, Beazley and Macfarlan JJA agreeing)

7. The dentist was at least reckless as to whether the treatment proposed was either appropriate or necessary for the purpose of addressing the appellant’s discomfort: [47], [67]

In relation to whether the appellant was entitled to exemplary damages:

(per Basten JA, Beazley and Macfarlan JJA agreeing)

8. An award of exemplary damages should be made. The course of conduct adopted by the dentist was carefully planned and carried into execution over a period in excess of one year. The dentist remained unjustly enriched to the extent of the $73,640 in fees received for a course of conduct which he admitted was not necessary. No evidence was called as to the dentist’s capacity to pay exemplary damages: [80]-[81]


The overall decision of the Court was to:

(1) Allow the appeal and set aside the order made by the trial judge on 30 June 2011 giving judgment for the plaintiff in the sum of $1,388,615.20.

(2) In place of the judgment given below, give judgment for the plaintiff against the defendant in the sum of $1,743,000.

(3) Order the respondent to pay the appellant’s costs in this Court.

(4) Grant the respondent a certificate under the Suitor’s Fund Act 1951 (NSW) in respect of the costs of the appeal.

Key Information


NSW Supreme Court of Appeal


Beazley JA at [1];
Basten JA at [2];
Macfarlan JA at [87]


  1. Whether Civil Liability Act applied to appellant’s claim;
  2. Whether defendant was entitled to a defence of consent;
  3. Whether expemplary damages should be awarded.

Full Case online:

NSW CaseLaw – Dean v Phung [2012] NSW CA 223

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