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Decisions of the Superior Courts of New South Wales, 1788-1899

Fattorini v Underwood [1833] NSWSupC 12

medical practitioners' fees, enforceability of - quantum meruit

Supreme Court of New South Wales

Burton J., 5 March 1833

Source: Sydney Gazette, 7 March 1833

This was an action brought by the plaintiff against the defendant to recover compensation for advice and attendance as a surgeon.  The amount claimed was at the rate of two guineas and a-half for ninety visits.  Pleas the general issue.[1 ]

The facts of the case were very simple.  The defendant engage the plaintiff as a professional attendant, without any specific retainer; and the question was, first, whether he had paid the number of visits for which he charged; secondly, whether such visits were necessary; and thirdly, whether the charge was reasonable.  Mr. Wentworth on the one side, and Mr. Norton on the other, having severally examined witnesses, and addressed the Court.

The learned Judge summed up the evidence.  His Honor regretted that the case was not tried before a jury - that tribunal being best adapted to do justice in enquiries of this nature.  He held that the plaintiff in this case could only be looked upon in the character in which he appeared upon the record - namely, that of a mere surgeon; he did not appear to be a graduate of any of the universities - if he had so appeared, then the Court would have been constrained to non-suit him, inasmuch as the fees paid to such persons were considered honorary - they were paid on the occasion of each visit, and, if not so paid, could not be recovered in an action for the amount.  In this case, the defendant sued as a mere surgeon for advice and attendance; and the question was, what attendences [sic] were necessary? and what was a fair and reasonable compensation for each visit?

The assessors found a verdict for the plaintiff, damages £150.

The learned Judge in announcing the verdict, stated that such was the opinion of the two assessors; but that, in his opinion, the amount was too high.

Counsel for plaintiff, Mr. Wentworth; for defendant, Mr. Norton.



[1 ] On the analogous issue of the recovery of barristers' fees, see Rowe v. Cullen, 1829.

Published by the Division of Law, Macquarie University