High Court Case Highlights Complexities of Damages Assessment in Cosmetic Surgery Gone Awry

Citation: [2023] EWHC 2794 (KB)
Judgment on

Introduction

In the High Court of Justice case of Roger Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2023] EWHC 2794 (KB), the King’s Bench Division adjudicated on a complex matter involving an assessment of damages following cosmetic surgery gone awry. The case showcases a multitude of legal principles, primarily centering on breach of contract, tortious negligence, and the assessment of damages thereto. It emphasizes the variations between contractual and tort-related remedies, alongside the quantification of damages for physical and psychological injuries resulting from substandard medical procedures.

Key Facts

The claimant, Mr. Mann, acting as executor of his late wife’s estate, claimed damages against three defendants, including the insurer of Noa Clinic in Poland, where the disputed cosmetic surgery was performed by Dr. Kalecinski. The surgery led to a serious post-operative condition that significantly incapacitated Mrs. Mann until her unrelated death. A default judgment initially entered against the insurer was upheld, and the primary issues revolved around the quantification of damages and whether the cost of the surgery and associated travel expenses could be recovered.

Several pertinent legal principles emerge from this case:

Negligence and Standard of Care: The surgery’s outcome and associated disabilities indicated that there was a breach of the standard of care. The court relied on expert evidence that the surgery was performed poorly, leading to severe and permanent injuries. The court considered this when allocating damages for pain, suffering, loss of amenity, and additional care requirements.

Contractual and Tortious Damages: The judge differentiated between contractual and tort-based damages, alluding to the objectives in each area - the former aims to put the claimant in the pre-breach position, while the latter seeks to restore the claimant to their pre-tort status.

Recovery of Wasted Expenditure: The case highlights a rare consideration where negligence renders a service wholly valueless. Thus, the claimant may recover the entirety of the expenditure as damages, supported by literature in Jackson and Powell on Professional Negligence and the case law Grange v Quinn [2013] EWCA Civ 24.

Judicial College Guidelines: These guidelines were referenced in quantifying non-facial scarring damages, although they did not encapsulate the extent of Mrs. Mann’s suffering, thus requiring a departure from the bracket suggested.

Interest on Damages: The calculation of interest on damages followed standard practice, emphasizing the importance of accurately reflecting the time value of lost sums.

Outcomes

The court made several crucial determinations:

  1. It awarded £37,500 for pain, suffering, and loss of amenity, considering both the intensity of Mrs. Mann’s postoperative suffering and its temporal limitation due to her untimely death.

  2. The additional care provided by Mr. Mann was recognized, albeit reduced by 25% to reflect the non-commercial nature of the care. Transport costs for medical appointments were allowed in full.

  3. The costs of the surgery and associated travel expenses to Poland were deemed recoverable. The judge concurred that the services provided by Dr. Kalecinski were of no value to Mrs. Mann, meriting the reimbursement of the surgery costs as wasted expenditure.

  4. The defendants were consequentially held liable for the sum of £69,348, which included the assessed damages and accrued interest.

Conclusion

The High Court’s judgment in Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors delivers an instructive exposition on the recovery of damages under both contract and tort law. This case juxtaposes the recovery of wasted expenses with the traditional quantification of injuries and their fallout. The decision underscores the court’s readiness to eschew prescriptive guidelines in favor of a bespoke and equitable assessment, tailored to the individual circumstances of the claimant. Legal professionals are reminded that while the Judicial College Guidelines provide a starting point, each case must be approached on its individual merits, especially where the aftermath of negligence is as severe as that experienced by Mrs. Mann.