Where a patient alleges that a medical practitioner's treatment constituted assault because it was performed solely for a non-therapeutic purpose, the legal burden of proving that the treatment bore no therapeutic purpose rests on the patient, not the practitioner. Tendency evidence admitted for one purpose (tendency to charge for work not performed) cannot be used for a different purpose (tendency to perform wholly unnecessary work) without satisfying the significant probative value requirement of s 97 of the Evidence Act for that different purpose. Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) requires not merely an intentional act but an act done with intent to cause injury; it does not follow that because an intentional tort is made out that s 3B applies. The broader question whether absence of consent is of the gist of assault and battery (such that the plaintiff always bears the onus) was extensively discussed but expressly left as preliminary.
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