Wong on Civil Liability

Medical Negligence in Australia

Work-in-progress


[A] Duty of Care

The Duty of Care of Medical and Health Professionals are well established: Rogers v Whitaker (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey, McHugh JJ): "The law imposes on a medical practitioner the duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment; it extends to examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case."

This duty of care extends to Chiropractors: Boothman v George [2024] WADC 26.

"Health Professional" in WA Legislation: Civil Liability Act 2002 (WA) Section 5PA defines “health professional” inclusively by reference to a range of medical dental chiropractic and like disciplines coupled with a catchall pertaining to “any other discipline or profession practising in the health area which applies a body of learning”.

Scope of the Duty of Care: " It is of course necessary to give content to the duty in the given case.": Rogers v Whitaker (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey, McHugh JJ). See also, especially, the summary of Rogers in Rosenberg v Percival (2001) 75 ALJR 734, 744–745 (Gummow J) (recommended read). 

Examples: 

[1] Maternal-Fetal Treatment - Duty of Care to Unborn Child

[1.1] Expression of the Duty of Care: At law the duty of care to unborn children is expressed as "a duty of care to an unborn child to take reasonable care to avoid causing that child physical harm in utero": Harriton v Stephens [2006] HCA 15, [24], [66] (Kirby J), [196] (Callinan J), [249] (Crennan J, with Heydon J agreeing).

[1.1.1] "mediated through the mother": Harriton v Stephens [2006] HCA 15, [249]-[250] (Crennan J: "it is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother").

[1.2] Scope of the Duty and recognised loss: not all damage to a child in utero is actionable. It is confined to the type and severity of injury caused by the breach of duty: Harriton v Stephens [2006] HCA 15, [242]-[250]; Waller v James [2006] HCA 16, [50], [81]. Query whether the loss is one that the law recognises as 'damage' - a claim by a disable child that doctors failed to advise the mother to terminate the preganacy (where the damage to the child was caused by this failure) is untenable - the disability (ie, needs created by being born alive, contra a life with diabilities) may be actionable if the damage was caused by a failure to take reasonable care to avoid causing that child physical injuries in utero  (see [A5.1]): Harriton v Stephens [2006] HCA 15, [245]-[249] (Crennan J: [245]: "This raises the difficult question of whether the common law could or should recognise a right of a foetus to be aborted or an interest of a foetus in its own termination, which is distinct from the recognised right of a foetus not to be physically injured whilst en ventre sa mere, whether by a positive act or by an omission"); Waller v James [2006] HCA 16, [50] (Hayne J). Damage actionable where doctor failed to take reasonable care to avoid causing the child physical injuries in utero, and the damage was directlr refereable to that failure (and not potentially intervened by a decision of the mother had there not been a failure: See also X & Y (by her tutor X) v Pal (1991) 23 NSWLR 26; Edwards v Blomeley [2002] NSWSC 460, [55]-[57].

[2] Duty to Warn of Material Risks

[2.1] Duty to Warn: Rogers v Whitaker (1992) 175 CLR 479, a doctor had a duty to warn a patient of a "material" risk and this was one where: "A reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it."

Excerpt: "13. In F v. R. ((26) (1983) 33 SASR 189), which was decided by the Full Court of the Supreme Court of South Australia two years before Sidaway in the House of Lords, a woman who had become pregnant after an unsuccessful tubal ligation brought an action in negligence alleging failure by the medical practitioner to warn her of the failure rate of the procedure. The failure rate was assessed at less than 1 per cent for that particular form of sterilization. The Court refused to apply the Bolam principle. King C.J. said ((27) ibid., at p 194): "The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community." King C.J. considered ((28) ibid., at pp 192-193) that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances. His Honour agreed with ((29) ibid., at pp 193-194) the following passage from the judgment of the Supreme Court of Canada in Reibl v. Hughes ((30) (1980) 114 DLR (3d), at p 13): "To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.[see Shepard v Swan re what is the patient's right to know in emergency situations]" The approach adopted by King C.J. is similar to that subsequently taken by Lord Scarman in Sidaway and has been followed in subsequent cases ((31) Battersby v. Tottman; Gover v. South Australia (1985) 39 SASR, at pp 551-552; Ellis v. Wallsend District Hospital, unreported, Supreme Court of New South Wales, 16 September 1988; E v. Australian Red Cross (1991) 99 ALR, at pp 649-650). In our view, it is correct. 14. Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors ((32) F v. R. (1983) 33 SASR, at p 191). Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended ((33) Chatterton v. Gerson (1981) QB 432, at p 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment ((34) See Fleming, The Law of Torts, 7th ed. (1987), p 110). Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information.15. In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as "the patient's right of self-determination" ((35) See, for example, Canterbury v. Spence (1972) 464 F 2d, at p 784) or even the oft-used and somewhat amorphous phrase "informed consent". The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase "informed consent" is apt to mislead as it suggests a test of the validity of a patient's consent ((36) Reibl v. Hughes (1980) 114 DLR (3d), at p 11). Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed ((37) Chatterton v. Gerson (1981) QB, at p 443). In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term "informed consent" ((38) (1980) 114 DLR (3d), at pp 8-11). 16. We agree that the factors referred to in F v. R. by King C.J. ((39) (1983) 33 SASR, at pp 192-193) must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.17. The appellant in this case was treating and advising a woman who was almost totally blind in one eye. As with all surgical procedures, the operation recommended by the appellant to the respondent involved various risks, such as retinal detachment and haemorrhage infection, both of which are more common than sympathetic ophthalmia, but sympathetic ophthalmia was the only danger whereby both eyes might be rendered sightless. Experts for both parties described it as a devastating disability, the appellant acknowledging that, except for death under anaesthetic, it was the worst possible outcome for the respondent. According to the findings of the trial judge, the respondent "incessantly" questioned the appellant as to, amongst other things, possible complications. She was, to the appellant's knowledge, keenly interested in the outcome of the suggested procedure, including the danger of unintended or accidental interference with her "good", left eye. On the day before the operation, the respondent asked the appellant whether something could be put over her good eye to ensure that nothing happened to it; an entry was made in the hospital notes to the effect that she was apprehensive that the wrong eye would be operated on. She did not, however, ask a specific question as to whether the operation on her right eye could affect her left eye. 18. The evidence established that there was a body of opinion in the medical profession at the time which considered that an inquiry should only have elicited a reply dealing with sympathetic ophthalmia if specifically directed to the possibility of the left eye being affected by the operation on the right eye. While the opinion that the respondent should have been told of the dangers of sympathetic ophthalmia only if she had been sufficiently learned to ask the precise question seems curious, it is unnecessary for us to examine it further, save to say that it demonstrates vividly the dangers of applying the Bolam principle in the area of advice and information. The respondent may not have asked the right question, yet she made clear her great concern that no injury should befall her one good eye. The trial judge was not satisfied that, if the respondent had expressed no desire for information, proper practice required that the respondent be warned of the relevant risk. But it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient's position would be likely to attach significance to the risk, and thus required a warning. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective. However, the respondent did not challenge on appeal that particular finding.19. For these reasons, we would reject the appellant's argument on the issue of breach of duty."

[2.2] Examples: 

(see also, article by Maurice Blackburne Lawyers)

[2.3] Singapore: 

[2.4] Malaysia: 

[B] Standard of Care (Breach of Duty of Care)

WA: Statutory Defence to breach of duty of care: Civil Liability Act 2002 (WA) s 5PB (except for maternal-fetal treatment: s 5PB(2)): "Section 5PB provides: 5PB Standard of care for health professionals (1) An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice. (2) Subsection (1) does not apply to an act or omission of a health professional in relation to informing a person of a risk of injury or death associated with: (a) the treatment proposed for a patient or a foetus being carried by a pregnant patient; or (b) a procedure proposed to be conducted for the purpose of diagnosing a condition of a patient or a foetus being carried by a pregnant patient. (3) Subsection (1) applies even if another practice that is widely accepted by the health professional's peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something. (4) Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional's position could have acted or omitted to do something in accordance with that practice. (5) A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice. (6) In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant."

Matter of expert professional opinion as to breach of standard of care: Civil Liability Act 2002 (WA) s 5PB(1).

Specific Matters: 

[B1] Whether consultation with patient required during an emergency (whether breach of Duty to Warn of material risks of procedure) (in context of birth complications - instrumental delivery or caesarian section) - Peer Professional Opinion - Consent to Medical Treatment - Consent to Procedure - Consent to emergency treatment in the course of therapy - continuing vaginal delivery without reference to patient - instrumental delivery - where trial judge stated "There comes a point at which it's simply academic, doesn't there? There comes a point at which the medical risks are so great that there can only be one answer and where the condition of the patient is such that they're not in a position to have an informed discussion and give proper consent anyway. My wife once, after giving birth and having returned to the ward, had to be offered emergency surgery in the middle of the night and I was rung by King Edward Hospital to ask whether I consented. What a stupid law it would be if I had the right to say no. Of course I consented. 'You're the doctor. If she needs emergency treatment, get on with it.'" - a situation where a surgeon needs to make an immediate decision about the particular technique to use in the midst of therapy or treatment - context of birth claims: See, Sheppard v Swan [2004] WASCA 215, [68] (McLure J), [113]-114] (EM Heenan J) (Rogers v Whittaker - consent prior to treatment discussed and distinguished, [113]: "Clearly, there must be very different considerations applying to a discussion between a physician and a patient when considering the options for treatment of chronic diabetes and a situation where a surgeon needs to make an immediate decision about the particular technique to use to reduce a fracture after trauma when the patient is in pain and needs urgent treatment.  In many instances, among which the last example may possibly be numbered, there will be little if any scope for the patient to contribute to the clinical decision because, even with such discussion and explanation as may be possible in the limited time available, it could never be expected that the patient would be able to make a sufficiently informed decision.  On the other hand there may be instances in which, despite this incapacity, the patient has formed a definite opinion and is either demanding or positively refusing, a particular mode of preferred treatment.  In that latter case the right of independent choice of the patient, so long as he or she is competent, may be decisive even if ill‑judged.  On other occasions where the therapeutic responsibility has been effectively entrusted to the doctor then, unless and until the position is reached where the doctor herself or himself considers that there is a choice to be made in which the patient should participate and the patient is sufficiently capable of making such a choice in the circumstances, having regard to the time available and the situation in which the patient is placed, the reality must be that it is part of the professional obligation of the doctor to make the decision about the course and nature of treatment as a matter of professional judgment in the light of established medical practices and opinions as may apply to the situation in hand.  This is certainly the case for a surgeon or other proceduralist who is faced with a choice to make in the midst of a procedure with a patient unconscious or unable to respond.  No doubt there may be situations in obstetrics where it is possible and necessary to discuss some therapeutic choice with the patient and obtain her consent or choice of option.  Whether this is so in any particular instance will depend largely, in my view, upon the nature of the particular decision to be made and in particular upon the degree of technicality involved, the state of the patient, whether distressed, anaesthetised or anxious, the time available and the likely consequences of the various alternatives open."); Lawson v Minister for Health [2005] WADC 105, [140] (Keen Cmr).

> See also, Bill Madden, https://billmaddens.wordpress.com/2018/03/20/managing-a-complex-birth/

> See also, David Pakchung, Morag Smith and Catherine Hughes, 'The role of clinical guidelines in establishing competent professional practice' (2019) 48(1-2) AIGP 22 <https://www1.racgp.org.au/getattachment/88ed33c6-6476-4385-99fe-64be6aef182a/The-role-of-clinical-guidelines.aspx>. 

> Forceps and Consent, Informed Consent: Gurisha Taranjeet Kaur (an infant suing by her father and litigation representative, Taranjeet Singh s/o Bhagwan Singh) & Anor v Dr Premitha Damodaran & Anor [2020] 9 MLJ 409 (Faizah Jamaludin J, High Court Kuala Lumpur). Reversed on appeal: Dr Premitha Damodaran v GTK (a child suing through her father and litigation representative, Taranjeet Singh a/l Bhagwan Singh) & Anor and another appeal [2022] 3 MLJ 484 (CA). 

> Performance of procedure - forceps - episiotomy - delivery - PPH - consent - death of baby - finding of negligent liability affirmed: Dr Wong Wai Ping & Anor v Wong Lin Sing & Ors [1998] MLJU 583 (Low Hop Bing J, High Court Shah Alam). 

> Res ipsa loquitur?: "In ordinary negligence case, ‘standard of care’ will not be in issue. However, in ‘professional negligence’ case, the burden is placed on the plaintiff to establish the ‘standard of care’ has been breached. Learned author Bullen and Leake and Jacobs on Precedents and Pleadings (28th Ed), have separated the precedents and pleadings for negligence and professional negligence to make out the distinction. In Dato’ Dr V Thuraisingam & Anor v Sanmarkan a/l Ganapathy & Anor [2016] 3 MLJ 227; [2015] 8 CLJ 248, Hamid Sultan Abu Backer JCA sitting with Badariah Sahamid JCA and Prasad Sandosham Abraham JCA had, inter alia, held: (2) The threshold for the plaintiffs to succeed is high in contrast to ordinary negligence cases. However, even though the threshold is high for the plaintiff, once duty of care as well as standard of care has been breached and it is established against the doctor, case laws have placed the evidential burden on the doctor to rebut the plaintiffs’ allegation when such allegation is supported by expert evidence to say the doctor has not satisfied the standard of care, expected of his professional standing. … (7) It was a grave misdirection on the part of the trial judge to disregard the medical expert opinion on the subject in issue to deal with ‘standard of care’ in particular relating to medical negligence, in breach of established guidelines set out in Bolam, Bolitho, as well as Foo Fio Na’s case. In addition, it also did not subscribe to the Evidence Act 1950. The trial judge singlehandedly attempting to deal with the issue of ‘standard of care’ without weighing all the medical experts evidence undermined the integrity of the decision making process requiring the appellate court giving no other alternative but to quash the decision in limine. ... The instant case is one of finding of facts. It is abundantly clear that the appellant has not proved the case according to law. The appellant attempting to rely on the principles on res ipsa loquitur in medical negligence case on the facts of the instant case, without citing authorities in our view stands as a ‘misconceived submission’ and if the argument is given judical recognition, the jurisprudence relating to medical negligence will be placed in the same footing as road traffic accident cases, demolishing well established cases relating to ‘standard of care’ and proof thereof as advocated in many cases such as Bolam, Bolitho, Dr V Thuraisingam and Foo Fio Na, etc": Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor [2016] 3 MLJ 742 (CA), [11], [14].

[B1.1] WA Health Policies - Consent to Treatment: WA Health Consent to Treatment Policy, 2016, [4.1.1]: "4.1.1 Treatment in an emergency In an emergency, treatment may be necessary to save a person’s life or avert serious injury to a person’s health. Consent should still be sought if the person is able to provide it. Consent processes may need to be somewhat abridged due to time pressures but the key principles of consent set out in this policy should still be applied. The circumstances of the emergency and details of communications should be recorded in the patient’s medical record at the earliest opportunity. In an emergency where a person is incapable of giving consent, treatment may be provided without consent, i.e. where treatment is necessary to save a person’s life or prevent serious injury to the person’s health. The treatment in these cases is that which is: * reasonably required to meet the emergency * in the patient’s best interests * the least restrictive of the patient’s future choices. In these situations, the completion of a consent form is not required but the circumstances that constitute the medical emergency and the patient’s inability to consent must be clearly documented in the patient’s medical record." See also, Department of Health, Government of Western Australia, 'Consent to Treatment' (Webpage) <https://www.health.wa.gov.au/Articles/A_E/Consent-to-treatment> 

[B2] Bent needle - spinal anaesthetic: Fuller v ACT [2024] ACTCA 19. 

[B3] Performance - Breach of Duty of Care: 

> see also. 'Medical: Chiropractic treatment (WA)' (Bill Madden, 2 May 2024) <https://billmaddens.wordpress.com/2024/05/02/medical-chiropractic-treatment-wa/>. 

> Gemma McGrath, 'The fallibility of memory – why good clinical notes can be the best defence to a claim' (Panetta McGrath, 18 July 2024) <https://www.pmlawyers.com.au/blog/2024/07/health-blog/the-fallibility-of-memory-why-good-clinical-notes-can-be-the-best-defence-to-a-claim/>. 


[C] Causation - Quantum of Loss and Damage

Generally, it is a matter for Expert Opinion to determine causation of alleged injury. General principle: a Plaintiff has to establish that the damage results from the breach of the duty of care: Tabet v Gett (2010) 240 CLR 357, [108] (Kiefel J).

Examples:

[C1] delay in medical treatment:

[C1.1] Causation - Quantum - where breach of the standard of care was the delay in administering treatments - requirement to establish on the balance of probabilities that the Plaintiff suffered any additional significant harm as a result of the delay in treatment beyond that which the Plaintiff would have suffered in any event as a result of the condition to which the Plaintiff sought treatment for, which did not [query if it did] arise because of any breach of duty on the part of the respondent:  Read v The Australian Capital Territory [2023] ACTSC 37, [19] (Mossop J). See also, Wright v Minister for Health [2016] WADC 93; East Metropolitan Health Service v Martin [2017] WASCA 7.

[C2] Causation in Duty to Warn cases: See eg, Wallace v Kam [2013] HCA 19, and summary in Loane Skene, 'Duty to Warn and Causation: Wallace v Kam' (Opinions on High, Melbourne Law School, Blog Post, 8 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/08/skene-wallace/>.

[C3] Causation - Performance


[D] Trespass Distinguished from Negligence - "Informed" Consent

[D1] Trespass - Medical Treatment

[D1.1] Dean v Phung [2012] NSWCA 223: "[48] In the therapeutic context, the defence to the tort of trespass to the person is consent. Where there has been an ostensible consent, which is later challenged, the convenient starting point is to consider the validity of the consent, rather than asking whether it has been obtained by fraud. In principle, consent may be legally ineffective as a result of an innocent mistake or carelessness on the part of the person obtaining it. Further the nature of the consent required is necessary to inform the concept of fraud in this context. [49]  The modern law with respect to the concept of consent to medical treatment may be traced to virtually contemporaneous developments in Canada, England and in this country. Laskin CJC in the Supreme Court of Canada held that a failure to disclose risks attendant on surgery or other medical treatment does not invalidate the genuineness of the consent, going to negligence rather than battery, “unless there has been misrepresentation or fraud to secure consent to the treatment”: Reibl v Hughes [1980] 2 SCR 880 ; 114 DLR (3d) 1 at [13]. A similar approach, adopted by the Ontario Court of Appeal in Reibl v Hughes (1978) 89 DLR (3d) 112, was followed by Bristow J in Chatteron v Gerson [1981] QB 432. When Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493 was decided by the English Court of Appeal, Reibl had reached the Canadian Supreme Court and was followed. Dunn LJ adopted the language of Chatterton that “‘once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real’ so that it afford a defence to a battery”: at 515D. The reasoning of Bristow J in Chatterton appears to have been first followed in this country by Matheson J in the Supreme Court of South Australia in D v S (1981) 93 LSJS (SA) 405. [50]  This line of authority has been approved by the High Court in Rogers v Whitaker [1992] HCA 58 ; 175 CLR 479 at 490, stating that “the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed”. Reference was made to the judgment of Bristow J in Chatterton at 443. Commonly, as in Rogers and in Chatterton, the validity of the consent has turned on the adequacy of the explanation given to the patient for the proposed procedure. Both cases were concerned with inadequate disclosures of risks attendant on treatment which were held not to vitiate the consent. However, as Bristow J noted in Chatterton, an action would lie in trespass if, by some accident, the wrong treatment was carried out. He gave an example of a boy admitted to hospital for tonsillectomy who was, through administrative error, circumcised. … [59] This analysis raises a question as to which party bore the burden of proof. With respect to that issue, there has been remarkably little discussion in Australian case law. In Marion’s Case, McHugh J (who was in dissent as to the outcome) stated at 310–311:Notwithstanding the English view, I think that the onus is on the defendant to prove consent. Consent is a claim of “leave and licence”. Such a claim must be pleaded and proved by the defendant in an action for trespass to land … . It must be pleaded in a defamation action when the defendant claims that the plaintiff consented to the publication … . The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person’s right of bodily integrity. Other persons do not have the right to interfere with an individual’s body unless he or she proves lack of consent to the interference. [60] That view would appear to conform to the reasoning of Windeyer J in McHale v Watson [1964] HCA 64 ; 111 CLR 384 at 388–389, although the issue arose in a somewhat different context. (See also D Mendelson, The New Law of Torts (OUP, 2nd ed, 2010) at 241–242 and RP Balkin and JLR Davis, Law of Torts (LexisNexis, 4th ed, 2009) at [3.7].) However, to the extent that an alternative to reliance on the objective approach is required, this court should act on the appellant’s acceptance that he bore the burden of negativing consent. [61] The authorities thus support four broad principles. First, consent is validly given in respect of medical treatment in circumstances where the patient has been given basic information as to the nature of the proposed procedure. However, where the nature of the procedure has been misrepresented consent will be vitiated. Thus, if it were demonstrated, objectively, that a procedure of the nature carried out was not capable of addressing the patient’s condition, there can have been no valid consent. [62] Secondly, assuming a proposed treatment capable of providing an intended therapeutic effect, for the purposes of determining the effect of a misrepresentation it is necessary to distinguish between core elements, which define the nature of the procedure, and peripheral elements, including risks of adverse outcomes. Absence of advice or wrong advice as to the latter may constitute a breach of the practitioner’s duty of care, but will not vitiate the consent. [63] Thirdly, the motive of the practitioner in seeking consent to proposed “treatment” may establish that what was proposed was not intended to be treatment at all, so that the nature of the act to which consent was ostensibly given was not the act carried out. Thus, although the conduct was objectively capable of constituting therapeutic treatment, if it were in fact undertaken solely for a non-therapeutic purpose not revealed to the patient, there will be no relevant consent.[64]  Fourthly, at least where a real issue has been raised as to the existence of a valid consent, the burden of proof will lie on the defendant practitioner to establish that the procedure was undertaken with consent. [65] Much anxious inquiry has been expended on identifying that which constitutes “the nature” of the treatment or, in the language developed in England and Wales, the “nature and quality” of the act: M Somerville, “Structuring the Issues in Informed Consent” (1981) 26 McGill LJ 740; see C Gallavin, “Fraud Vitiating Consent to Sexual Activity: Further Confusion in the Making” (2008) 23 NZUL Rev 87; M Wilson, “Assault in medical law: Revisiting the boundaries of informed consent to medical treatment in South Africa” (2009) 16 JLM 862; The Hon PW Young “Is there any law of consent with respect to assault?” (2011) 85 ALJ 23. In the present case, the difficulty of drawing a clear dividing line between the core elements of the treatment, to which consent must be obtained, and peripheral elements, absence of which will not vitiate consent, does not arise. Rather, the issue is whether treatment which was unnecessary (and now conceded to be so) was presented as necessary (again conceded) so that any apparent consent did not satisfy the criteria for consent to treatment, the treatment in question being unnecessary in the sense that it was not capable of constituting a therapeutic response to the patient’s condition. [66]  It follows from the principles set out above that the concessions made by the dentist are sufficient to demonstrate that the appellant did not consent to the proposed treatment, because it was not in fact treatment necessary for his condition. As a result, the treatment constituted a trespass to the person"

[D1.2] Wiltshire-Butler v Hardcastle [2002] WADC 13 (Macknay DCJ): "[137]  In relation to the duty of care owed by a medical practitioner to a patient, the decision of the High Court in Rogers v Whitaker (1992) 175 CLR 479 sets out the relevant principles. [138]  In Rosenberg v Percival (2001) 75 ALJR 734, Gummow J at 744–745 suggested the following passages in the judgment of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers enabled the "structure and sequence of their Honours' reasoning (to be) understood": (i)'In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.' (at 487) (ii)'[I]t is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".' (at 487) (iii)'The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the facts according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.' (at 489) (iv)'There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.' (at 489) (v)'Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.' (Original italics.) (at 489–490) (vi)'We agree that the factors referred to in F v R ( (1983) 33 SASR 189 at 192–193) by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.' (Italics added.) (at 490). [139]  As to the tort of battery, an intentional and direct interference to the body of another, in the absence of consent, constitutes an assault and battery for which the person so interfering is liable to the person interfered with in damages: see generally Fleming, the Law of Torts 8 ed (1992) pp 24–25.[140]  Medical treatment when given with the consent of the patient is lawful, the consent being the factor necessary to prevent such being an assault: Health & Community Services (NT), Department of v JWB & SMB (Marion's Case) (1992) 175 CLR 218 at 232–234 per Mason CJ, Dawson, Toohey and Gaudron JJ. [141]  Where physical injury results from an assault and battery damages are calculated in the same way as in any other action for personal injury: McGregor on Damages 15 ed (1988) par 1615. [142]  A further head of damage can be injury to feelings that may have been caused (ibid), but no claim of that kind has been made here. [143]  The question of consent was considered in Chatterton v Gerson [1981] QB 432 at 442–443 by Bristow J: 'It is clear law that in any context in which consent of the injured party is a defence to what would otherwise be a crime or a civil wrong, the consent must be real. Where for example a woman's consent to sexual intercourse is obtained by fraud, her apparent consent is no defence to a charge of rape. It is not difficult to state the principle or to appreciate its good sense. As so often, the problem lies in its application. No English authority was cited before me of the application of the principle in the context of consent to the interference with bodily integrity by medical or surgical treatment. In Reibl v Hughes (1978) 89 DLR (3d) 112, which was an action based on negligence by failure to inform the patient of the risk in surgery involving the carotid artery, the Ontario Court of Appeal said that the trial judge was wrong in injecting the issue, 'Was it a battery?' into the case pleaded and presented in negligence. The majority of the court, having referred to the United States cases on what is there called the 'doctrine of informed consent,' decided that the action of 'battery' seemed quite inappropriate to cases in which the doctor has acted in good faith, and in the interests of the patient, but in doing so has been negligent in failing to disclose a risk inherent in the recommended treatment. They reversed the finding of battery. I am told that that decision is now under appeal. In Stoffberg v Elliott [1923] CPD 148, Watermeyer J, in his summing up to the jury in an action of assault in this context, directed them that consent to such surgical and medical treatment as the doctor might think necessary is not to be implied simply from the fact of going to hospital. There it was admitted that express consent to the operation should have been obtained, but was not, due to oversight. In my judgment what the court has to do in each case is to look at all the circumstances and say 'Was there a real consent?' I think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. When the claim is based on negligence the plaintiff must prove not only the breach of duty to inform, but that had the duty not been broken she would not have chosen to have the operation. Where the claim is based on trespass to the person, once it is shown that the consent is unreal then what the plaintiff would have decided if she had been given the information which would have prevented vitiation of the reality of her consent is irrelevant. In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass. Of course if information is withheld in bad faith, the consent will be vitiated by fraud. Of course if by some accident, as in a case in the 1940's in the Salford Hundred Court where a boy was admitted to hospital for tonsilectomy and due to administrative error was circumcised instead, trespass would be the appropriate cause of action against the doctor, though he was as much the victim of the error as the boy. But in my judgment it would be very much against the interests of justice if actions which are really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass.' [144]  The Judge also pointed out (443): … that getting the patient to sign a pro forma expressing consent to undergo the operation 'the effect and nature of which have been explained to me,' as was done here in each case, should be a valuable reminder to everyone of the need for explanation and consent. But it would be no defence to an action based on trespass to the person if no explanation had in fact been given. The consent would have been expressed in form only, not in reality. [145] In Rogers, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said, at 489, in relation to Chatterton: In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. [146] Rogers was of course a case of failure to warn of a risk involved in undergoing an agreed surgical procedure, and their Honours also said, at 490, in relation to that: "In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as 'the patient's right of self-determination' or even the oft-used and somewhat amorphous phrase 'informed consent'. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase 'informed consent' is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. In Reibl v Hughes the Supreme Court of Canada was cautious in its use of the term 'informed consent'"

[D1.3] Re MS [2020] WASAT 146, [48]: "“[48]  It is important not to lose sight of the fact that, depending on the nature of the restrictive practice in question, its commission, in the absence of consent by, or on behalf of, the person subject to the practice, may have a number of consequences under the law. A restrictive practice which involves the application of physical force of some kind (such as the use of a harness to restrain a person from moving about in, or exiting from, a car) may constitute an assault under the criminal law or a trespass to the person, giving rise to civil law remedies.30 Similarly, securing residents in a residential facility by locking their bedroom doors, without the consent of, or on behalf of, the residents, may give rise to civil actions for false imprisonment, or to criminal prosecution for deprivation of liberty. In some cases, circumstances of emergency or necessity may excuse the conduct notwithstanding the absence of consent (such as in respect of the provision of medical treatment to a person, in the case of an emergency) so as to relieve the service provider of liability for what would otherwise be an assault to the person.”: referring to Warnakulasuriya v R [2012] WASCA 10 at [43] and [56]-[57]; see also In re T (Adult: Refusal of Treatment) [1993] Fam 95 , 102-103 (Lord Donaldson MR), 120 (Butler- Sloss LJ), 122 (Staughton LJ); Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621 , 627; Counsel v Glynn [2017] WASC 7 ; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 , [31]-[34].

[D1.4] Department of Immigration, Local Government & Ethnic Affairs, Department of v Mok (NSWSC eq, Powell J, No 4892 of 1992) BC9201380 at 9-11: “What, in the absence of such authority, or the detainee's consent, will constitute a lawful excuse for the administration of medical treatment is, however, far from clear. I say this since although the law - pursuant to a rather ill-defined concept of "necessity" - seems to excuse the administration of medical treatment (see, for example, R v Bourne [1939] 1 KB 687: Sidaway v Governors of the Bethlem Royal Hospital [1985] 1 AC 871, 882 per Lord Scarman; 898 per Lord Bridge of Harwich) - and, perhaps, even imposes a duty to administer such treatment (see, In re F (Mental Patient: Sterilisation [1990] 2 AC 1, 55 per Lord Brandon of Oakbrook ) - in cases of great emergency, and where the subject person is unconscious, it is at least a matter of doubt, first, whether treatment may, under the doctrine of "necessity", be excused except in such extreme cases; and second, whether, even in such extreme cases, treatment may be excused, if the subject person has deliberately embarked upon the course giving rise to the emergency, and has previously refused, or forbidden, treatment. … Although there are later cases (see T v T (supra); In re F (Mental Patient: Sterilisation) (supra)) in which the doctrine of "necessity" has been prayed in aid to justify the administration of medical treatment to persons incapable of giving consent to that treatment, the state of the authorities is such that it is not clear that such cases are now to be limited to those involving subjects either inherently incapable of consenting, or disabled by injury from consenting, or whether they extend to cases where the lack of capacity is, as it were, self-induced. Thus, in In re F Mental Patient: Sterilisation (supra) at 55-56, Lord Brandon of Oakbrook said: "At common law a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force however small ('other treatment'), without their consent. If a doctor were to operate on such patients, or give them other treatment, without their consent, he would commit the actionable tort of trespass to the person. There are, however, cases where adult patients cannot give or refuse their consent to an operation or other treatment. One case is where, as a result of an accident or otherwise, an adult patient is unconscious and an operation or other treatment cannot be safely delayed until he or she recovers consciousness. Another case is where a patient, though adult, cannot by reason of mental disability understand the nature or purpose of an operation or other treatment. The common law would be seriously defective if it failed to provide a solution to the problem created by such inability to consent. In my opinion, however, the common law does not so fail. In my opinion, the solution of the problem which the common law provides is that a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health. … In my opinion, the principle is that, when persons lack the capacity, for whatever reason, to take decisions about the performance of operations on them, or the giving of other medical treatment to them, it is necessary that some other person or persons, with the appropriate qualifications, should take such decisions for them. Otherwise they would be deprived of medical care which they need and to which they are entitled. In many cases, however, it will not only be lawful for doctors, on the ground of necessity, to operate on or give other medical treatment to adult patients disabled from giving their consent; it will also be their common law duty to do so. In the case of adult patients made unconscious by an accident or otherwise, they will normally be received into the casualty department of a hospital, which thereby undertakes the care of them. It will then be the duty of the doctors at that hospital to use their best endeavours to do, by way of either an operation or other treatment, that which is the best interests of such patients. As will be apparent, despite the fact that the question did not then arise for consideration, His Lordship's observations, at least as a matter of language, are capable - depending on the factual situation - of being applied to a case such as this.”

[D2] Onus of Proof: White v Johnston [2015] NSWCA 18 (Leeming JA). : "(e) The broader question of the onus of proving consent ... [94] Must the patient allege and prove that there was an absence of valid consent, or must the medical practitioner allege and prove that there was valid consent? There is no binding authority on the question. The uncertain state of authority was noted by this court in Cusack v Stayt [2000] NSWCA 244 ; 31 MVR 517 at [13]. Basten JA observed in Dean v Phung at [59] that there had been “remarkably little discussion” in Australian case law on the point. The uncertain state of the law is illustrated by Professor Fleming’s ambivalence. He acknowledged the view, even after Marion’s case, that consent was not a defence, because arguably “lack of it is of the very gist of assault and battery”: J Fleming, The Law of Torts, 9th ed LBC Information Services 1998, p 86 (same passage in 10th ed, 2011, p 90). However, he also said that: All the same, consistent with a person’s paramount right to bodily security, consent should be a matter of defence, with the burden of proof on the defendant, in trespass to the person as it is in trespass to land or goods. [95] The most careful Australian analysis of which I am aware, and which evidently influenced Professor Fleming, is that of McHugh J in Secretary, Dept of Health & Community Services v JWB and SMB (Marion’s case) [1992] HCA 15 ; 175 CLR 218 at 310–311: In England, the onus is on the plaintiff to prove lack of consent. That view has the support of some academic writers in Australia, but it is opposed by other academic writers in Australia. It is opposed by Canadian authority. It is also opposed by Australian authority: Hart v Herron (1984) Aust Torts Reports 80-201; Sibley v Milutinovic (1990) Aust Torts Reports 81-013. Notwithstanding the English view, I think that the onus is on the defendant to prove consent. Consent is a claim of “leave and licence”. Such a claim must be pleaded and proved by the defendant in an action for trespass to land. It must be pleaded in a defamation action when the defendant claims that the plaintiff consented to the publication. The Common Law Procedure Act 1852 also required any “defence” of leave and licence to be pleaded and proved. However, those who contend that the plaintiff must negative consent in an action for trespass to the person deny that consent is a matter of leave and licence. They contend that lack of consent is an essential element of the action for trespass to a person. I do not accept that this is so. The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person’s right of bodily integrity. Other persons do not have the right to interfere with an individual’s body unless he or she proves lack of consent to the interference” (most footnotes omitted). [96] McHugh J dissented in the result, and the other members of the court did not address the point. Nevertheless, his Honour’s reasons and conclusion are to be accorded great respect. They are regularly cited in textbooks as reflecting the law in Australia: see for example M Jones, Medical Negligence, Sweet & Maxwell, 4th ed 2008, p 559 (“[in] Australia consent is undoubtedly regarded as a defence”). [97] However, I respectfully disagree with the reasoning. My disagreement rests principally on the weight I give to a line of authority, commencing with Christopherson v Bare (1848) 11 QB 473 ; 116 ER 554, to which McHugh J did not refer. I also discount the two Australian decisions to which McHugh J referred. Finally, at the level of principle, I do not regard a person’s general right to bodily integrity as speaking to the narrow question of onus. [98] That said, I emphatically agree with the approach taken by McHugh J, which is to place the question in its historical perspective, focussing on the time when the modern law of torts was being formulated. As Gageler J said in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 ; 88 ALJR 552 at [107], by reference to Windeyer J’s judgment in Attorney-General (Vic) v Commonwealth [1962] HCA 37 ; 107 CLR 529 at 595: The point is not to look back to “an assumed golden age” but rather “to help us to see more clearly the shape of the law of to-day by seeing how it took shape”. [99] Joseph Raz, echoing Selden, has referred to this “Janus-like aspect of interpretation”, which “faces both backward, aiming to elucidate the law as it is, and forward, aiming to develop and improve it”: J Raz, Between Authority and Interpretation, Oxford University Press, 2009, p 354, and see S McLeish, “Challenges to the Survival of the Common Law” (2014) 38(2) Melbourne University Law Review (Advance) at 5. So to do is an essential aspect of the curial function, which seeks at the same time to maintain legal continuity as well as a capacity for incremental development and innovation. And an historical perspective draws upon a rich resource of legal analysis, which ought not lightly to be disregarded. After all, as Viscount Simonds acknowledged in Chapman v Chapman [1954] AC 429 at 444, “[i]t is even possible that we are not wiser than our ancestors”, although contemporary law may operate in different conditions from those to which earlier judgments were directed. [100] But before undertaking that historical review, it is convenient to say something immediately about the two Australian authorities to which McHugh J adverted. One, Sibley v Milutinovic (1990) Aust Torts Reports 81-013, is a first instance decision which turned on the onus of establishing consent in an action for trespass to the person in a soccer game. There are three matters which detract from its authority. [101] First, as the trial judge, Miles CJ, observed at the outset, there was a certain “inequality of arms” in the courtroom: the successful plaintiff was represented by experienced counsel while the defendant was unrepresented. [102] Secondly, although it is plain that the same principles apply to medical practitioners and dentists, I see no necessary reason why the question of onus need be the same in an alleged trespass to the person arising out of a contact sport (such as Sibley v Milutinovic) as in a claim by a patient against a medical practitioner. The relationship between sporting competitors is utterly different from that between patient and practitioner. For one thing, it is symmetric, each subjecting himself or herself to the risk of injury; for another, there is nothing like the swathe of common law, equitable, ethical and statutory norms regulating all aspects of the doctor/patient relationship, reflecting its profoundly asymmetric nature. I respectfully agree with Lord Mustill’s reasons in R v Brown [1992] 2 UKHL 7 ; [1994] AC 212 at 266: Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own. [103] Thirdly, Miles CJ rejected arguments based on principle and followed a statement by Fox J in McNamara v Duncan (1971) 26 ALR 584 at 588 that “consent is a defence”. There is nothing wrong with the formulation by Fox J, but, with respect, it does not support any conclusion about the elements of battery, or onus of proof. This warrants some elaboration, which will be given below, because it explains a large source of confusion in legal reasoning in this area. Sibley v Milutinovic is far from the only decision in which reference is made to consent being a “defence”. Such decisions do not bear materially on the question of legal or evidentiary onus, unless it is clear that “defence” is being used in a precise technical sense. [104] James Goudkamp has drawn attention to the lack of precision in the language of “defence”, on the opening page of Tort Law Defences (Hart Publishing, Oxford, 2013): The word “defence” bears numerous meanings in the tort law context, and a considerable amount of confusion has been spawned by the widespread failure of legal scholars, judges and legislators to indicate what they mean by the word. This situation is a significant impediment to clear thinking in relation to tort law generally. [105] The imprecise use of the language of “defence” was likewise noted by Heydon J in Baiada Poultry Pty Ltd v R [2012] HCA 14 ; 246 CLR 92 at [55]. [106] The other Australian authority to which McHugh J referred in Marion’s case was Hart v Herron (1984) Aust Torts Reports 80-201, where “[b]oth counsel agreed that an absence of consent was part of the gist of the action in a count for assault. They disagreed as to who bore the onus.” Fisher J directed a jury that it was for the defendant to do so. This decision seems at odds with basic principle, if “onus” is taken as a reference to legal onus. If as was agreed absence of consent was of the gist of the action, then the plaintiff would fail if he did not show absence of consent. It seems that Fisher J’s statement, noting that it was made in the context of a direction to the jury, is best read as referring merely to an evidentiary burden as relevant to the particular facts of that trial. On that reading, it says nothing on the question of legal onus. [107] In order to appreciate, by way of contrast, the force of the reasoning in Christopherson v Bare, as indicated above it is necessary to be more precise about that ambiguous word “defence”. In Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 ; 193 CLR 519 at [8], Brennan CJ and McHugh J said “defences are either by way of denial or confession and avoidance”. A denial by a defendant of an element of the tort does not introduce any new issue into the proceeding. On the other hand, a defendant may admit the matters alleged by the plaintiff, but introduce new allegations which, if established, will defeat the plaintiff’s claim (such as a limitation defence, necessity, or self-defence). The essential difference is between a plea which attacks an element of the cause of action, or by the positive assertion of some further matter which, if accepted, will exonerate the defendant. [108] An element of a cause of action may, of course, be negative in substance, and there is no difficulty in requiring a plaintiff to bear the legal burden of proving a negative. Walsh JA had said so in Currie v Dempsey (see above). The leading case remains Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 457, where Bowen LJ said, of an action for malicious prosecution where the plaintiff must prove that the prosecutor lacked reasonable or probable cause, that “[i]f the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff”. Other examples are given by Campbell J in Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 at [170]–[173], and by Bell and Gageler JJ in Henderson v Queensland [2014] HCA 52 at [33] and [90]. …  [123] True it is, as McHugh J observed in Marion’s case, that it had been held that a claim of consent was a plea of “leave and licence” in the case of trespass to land: Kavanagh v Gudge (1844) 7 Man & G 316 ; 135 ER 132, Wood v Manley (1839) 11 Ad & E 34; ; 113 ER 325 and Plenty v Dillon [1991] HCA 5 ; 171 CLR 635 at 647, as well as in defamation. But there is no reason for every element of those different torts to be the same as an action for trespass to the person. As much was recognised by Bullen & Leake, who explained the different position in relation to Kavanagh v Gudge and Wood v Manley in the case of trespass to land immediately after stating that for actions for assault and probably false imprisonment the defence may be established under the general issue, citing Christopherson v Bare : see at p 740. I am certain that McHugh J would not have relied upon the rules applicable to other torts by analogy had his Honour been taken to Christopherson v Bare which was squarely on point. [124] As McHugh J observed in Marion’s case, the authorities cannot all be reconciled. The law of Canada in this respect has diverged from that of England, in light with what was said in Reibl v Hughes [1980] 2 SCR 880 at 890, which has been treated as binding in that country. Modern Australian commentators who have considered the question with care are likewise divided: see especially articles by Dr S K N Blay, “Onus of Proof of Consent in an Action for Trespass to the Person” (1987) 61 ALJ 25, and Professor F A Trindade, “Intentional Torts: Some thoughts on Assault and Battery” (1982) 2 OJLS 211 at 228–229. However, the orthodox English decision appears still to be Freeman v Home Office (No 2) [1984] QB 524. McCowan J’s statement at 539 that “the burden of providing absence of consent is on the plaintiff” is substantially in line with one hundred and forty years of authority, although some doubts have been expressed: see for example Ashley v Chief Constable of Sussex Police [2006] EWCA Civ 1085 ; [2007] 1 WLR 398 at [31]. The modern academic commentator who has, in my view, considered the question most carefully, is of the same view: It is tentatively concluded, therefore, that to plead consent in proceedings in trespass is to offer a denial rather than a defence: J Goudkamp, Tort Law Defences (Hart Publishing, Oxford, 2013) p 67. … [129] Finally, it is important to appreciate that what is at stake is merely a question of legal onus. In most cases, it should not present any substantial obstacle to the patient to bear the legal burden of establishing that he or she did not consent. Indeed, the question is likely most to matter in cases where the plaintiff is incapacitated or has died, or in a case such as the present where the case ran at trial diverged substantially from that pleaded. But against this, in any case where a question is properly raised as to the validity of a patient’s consent, the stakes are very high for the medical practitioner, and Blatch v Archer inferences if he or she fails to give evidence will loom large. In any case where there is a proper foundation for the allegation to be made, it is unlikely that the legal onus borne by the patient will be determinative. [130] Those matters further reinforce my conclusion that, at least in the case where a patient’s consent is said to have been rendered invalid by reason of the fraud, or conduct tantamount to fraud, the onus remains with the patient to establish fraud. If what I have outlined above be correct, then the broader position is straightforward: a patient who sues in assault and battery in all cases bears the legal burden of establishing an absence of consent on his or her part, although that proposition is undeniably contrary to what has been said by McHugh J and Basten JA. I should make it clear that my views in s (e) of these reasons have been reached without the benefit of full argument on the point and are necessarily therefore preliminary. None of the foregoing is to deny that in many cases where evidence supportive of fraud by the medical practitioner has been adduced, the evidentiary burden will be borne by the medical practitioner.”


[E] Loss of Genetic Affinity - Head of Damage

[E1] ACB v Thomson Medical [2017] 1 SLR 918.

[E2] Forthcoming: Jing Zhi Wong, 'Loss of Genetic Affinity as a Head of Damage ion Australian Law? A Comparative Analysis'. 


[F] Law and Medicine in Socio-Legal Contexts


[G] Function of Court in Medical Negligence cases:


[H] Quantum: 

See eg, 

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