From: Neil Foster <>
Date: 21/02/2015 06:29:44 UTC
Subject: ODG: Onus of proof in medical battery

Dear Colleagues;
The NSW Court of Appeal decision in White v Johnston [2015] NSWCA 18 is a fascinating discussion of a long-standing issue as to which it has previously been supposed that UK and Australian law differ: in a case of battery, is lack of consent an essential element of the tort (so that it must be shown by the plaintiff), or is consent a defence which must be made out by the defendant? The masterly discussion of the issue here by Leeming JA will be essential reading on this question for the future.
The facts involved the plaintiff, Ms Johnston, having received defective dental treatment from Ms White over a period of time, and her claim being framed at trial in terms of the intentional tort of battery, rather than negligence. (The reason being that the strict limits imposed by the NSW Civil Liability Act 2012 do not apply to certain cases of “intentional harm” under s 3B of that Act). While the original claim was pleaded in negligence, no doubt the outcome in the somewhat similar case of Dean v Phung [2012] NSWCA 223 (a truly gruesome series of completely unnecessary dental procedures led to a large award of damages for battery, including exemplary damages) led to the late reframing of the claim as one in battery.
I won’t go into all the interesting issues. But, surprisingly to me, the decision of Leeming JA holds that the onus of proof of lack of consent in this case lay on the plaintiff. She had not discharged that onus on the facts presented- in fact she conceded that she had indeed requested some of the work, but simply said not all of it was wanted, and what was done was bad quality. These matters of course open up a claim in negligence, but the court says they do not justify a claim in battery.
Leeming JA undertakes a detailed review of the common law, going back to the old pleading rules in various forms, and comes to two conclusions:
(1) Even if the general onus of proof of lack of consent lay with the defendant, the plaintiff would  still need to show, for a battery claim based on “I consented to a certain procedure, but not the one that was administered”, that the defendant was guilty of fraud. (Here this would have involved showing that the procedures had no therapeutic purpose, and were just performed for monetary gain- while that was made out in the earlier case of Dean v Phung, it was not true here.)
(2) However, in a broader discussion, his Honour reviewed both the English and Australian authorities and said that he had to disagree with the classic obiter comments of McHugh J in Marion’s case which are usually held to establish the position in Australia that for battery lack of consent must be viewed as a defence. His Honour adopted what he said was still the authoritative English position in Freeman v Home Office (No 2) [1984] QB 524, that lack of consent is an element of the tort of battery.
In coming to this view his Honour cited list member James Goudkamp’s book Tort Law Defences to support his position ( see [124]).
I am torn by this decision! I regard Leeming JA as one of the most able common law judges in the common law world today. But it seems to me that there is more to be said for the position that lack of consent should not be regarded as an element of the tort of battery; and I suppose now someone will have to say it! If an appeal were made to the High Court I suspect special leave would be granted for the onus issue, although it has to be said that there seem to have been a number of problems with the case made on behalf of the plaintiff apart from that issue, so it might not be seen as a suitable vehicle.
Thanks to Harold Luntz for alerting me to the decision.

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