A recent NSW case Dean v Phung [2012] NSWCA 223 raises interesting issues in a case of over-servicing/recommending unnecessary treatment. This seems an increasingly common suspicion/temptation with some areas of ‘elective’ medicine/dental treatment.

The facts in the case were awful!! The defendant left no stone or ‘tooth’ unturned – performing treatment on every single tooth in the plaintiff’s mouth, during 53 consults within a 12 month period.

The case is interesting because the court of appeal NSW took such a [in my view] tough position concerning the relevant dentist. The CoA found:

  • The Civil Liabilty Act ("CLA"), which on my reading is substantively the same as in WA, did not apply to the claim, because the dentist either knew or was reckless as to whether the patient needed the treatment in question (they found the patient did not, as an objective fact), therefore intentionally caused personal injury (so section 3A applied).

    This was a tough conclusion in my view…This is important, because the limits on damages for pain and suffering, wage rates etc, by the CLA were therefore to be ignored…

  • Because no ‘true’ consent could be provided to the treatment, because the patient had no advice that it was unnecessary, the dentist had in fact committed trespass, rather than ‘only’ been negligent. This seems a move back towards the pre- Rogers v Whitaker position..
  • A claim for exemplary damages should be awarded against the dentist: for the money had had charged for the treatment. Such claim could not be awarded if the CLA applied and such awards are notoriously difficult to secure.