District Court New South Wales

• Medium Neutral Citation: Machado v Advanced Dermatology Group Pty Ltd [2013] NSWDC 85
• Hearing dates: 22, 23, 24, 26 April and 30 May 2013
• Decision date: 07 June 2013
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

1.Verdict and judgment for the defendant

2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required;

• Catchwords: TORTS - negligence - laser facial treatment provided by a non-medical dermatology clinic - plaintiff submitted to treatments comprising a series of laser cosmetic facial treatments described as non-surgical 60 minute face lift for facial rejuvenation - resultant burns, blistering and resultant scarring to face - whether this occurred due to departure from the expected standard of care - absence of expert evidence on expected standard of care - whether negligence established - consideration of defences - whether correct party joined as defendant; DAMAGES - assessment of claimed heads of damage
• Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 16
• Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; Morvatju v Moradkhani [2013] NSWCA 157; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Roe v Minister for Health [1954] EWCA 7; (1954) 2 QB 66; Rogers v Whittaker [1992] HCA 58; (192 175 CLR 479; Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; (2000) CLR 121; Watts v Rake [1960] HCA 58; (1960) 180 CLR 158
• Category: Principal judgment
• Parties: Veronica Machado (Plaintiff); Advanced Dermatology Group Pty Limited (Defendant)
• Representation: Mr M Maxwell (Plaintiff); Mr Robert Gulbahce (Director of defendant company); Brydens (Plaintiff); Mr Robert Gulbahce (Director of defendant company)
• File Number(s): 2012/146093
• Publication restriction: None

Judgment

Table of Contents

Nature of case	[1] - [9]
Allegations of negligence	[10] - [15]
Defences	[16] - [22]
Submissions of the parties	[23] - [26]
Issues	[27] - [28]
Factual background	[29] - [70]
Plaintiff's background	[36] - [37]
Plaintiff's history of attendances at clinic	[38] - [52]
Injury	[53] - [56]
Treatment and recuperation from injuries	[57]
Medical and allied assessments	[58] - [66]
Disabilities that remain	[67] - [69]
Mitigation	[70]
Issue 1 - Whether defendant treated the plaintiff	[71] - [96]
Issue 2 - Nature and course of the treatment	[97] - [131]
Issue 3 - Whether plaintiff was treated negligently	[132] - [163]
Issue 4 - Assessment of damages	[164] - [173]
Probable life span	[165]]
Non-economic loss	[166]
Future economic loss	[167]
Loss of superannuation	[168]
Future paid attendant care	[169] - [170]
Future out-of-pocket expenses	[171]
Past out-of-pocket expenses	[172]
Summary of damages assessment	[173]
Disposition	[174]
Costs	[175]
Orders	[176]

Nature of case

1 On about 1 July 2009, and on four other occasions in the previous 17 months, the plaintiff, Veronica Machado, then aged 38 years, submitted herself to elective cosmetic laser treatment sessions to the skin of her face. The treatment was variously described as a non-surgical or non-invasive 60 minute facelift, or facial skin rejuvenation. These sessions were said to have involved the transmission of laser energy and heat to what was described as the dermal junction of the underlying structures of the facial skin, in the belief that this would promote tightening of the skin in those areas.

2 Each of those sessions were carried out by persons who had received training from the manufacturers of lasers designed for that use, however, those persons were not medical practitioners. It appears that they were not trained in any of the biological sciences.

3 Before the first of those sessions, on 19 February 2007, the plaintiff had been assessed by a medical practitioner, who determined that she was a suitable candidate for the treatment sessions in question. That medical practitioner did not administer the treatments and was not a party to the proceedings. There is no evidence that the medical practitioner had in any way acted wrongfully, or contrary to any required standard of medical practice. In the course of a laser treatment session administered to the plaintiff on 1 July 2009, she received facial burns, which had initially resulted in pain, redness, swelling, blistering, and then ultimately, scarring to her face.

4 The plaintiff claims these problems occurred as a result of the negligence of the defendant, Advanced Dermatology Group Pty Limited. The plaintiff alleged it was an employee of that company that had performed the treatment of which she now complains. That company was said to be without the financial means to engage legal representation for the conduct of its defence of the proceedings. By leave, it appeared through its sole director, Mr Robert Gulbahce.

5 In these proceedings, the plaintiff seeks damages from the defendant company for personal injury that she claims to have suffered in the course of treatment she maintains had been provided by the defendant company. The defendant company disputed that it was the entity that had provided the treatment in question to the plaintiff. The plaintiff had not pursued pre-action discovery, or any other form of interlocutory discovery, formal admissions or interrogatories, directed at clarifying that question before the trial.

6 The only persons who gave oral evidence in the proceedings were the plaintiff and Mr Samuel Daniel Francis, formerly known as Gulbahce, the operator of the laser machine which had been used in the treatment session involving the plaintiff on 1 July 2009. Each party took different positions on the credibility of aspects of the evidence given by those witnesses.

7 Mr Gulbahce and Mr Francis are brothers. Despite suggestions made to Mr Francis in cross-examination by counsel for the plaintiff in an attempt to discredit him, in my view, there is nothing in the evidence that suggests that there is anything sinister in the circumstances or consequences of the name change of Mr Francis from his former name of Gulbahce. He said, and I accept, that he changed his name for business purposes, as he felt it was an easier name for others to use when referring to him in the business setting.

8 The other questions relating to the credibility and reliability of testimony will be identified and resolved in the context in which they arise in my reasons for judgment. In my view, this is not a case that calls for global findings on credibility of either of the two witnesses who were called to give evidence.

9 There is no claim made against the defendant company for alleged deceptive or misleading conduct. The case was framed in alleged negligence. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"].

Allegations of negligence

10 The particulars of the allegations of negligence against the defendant company, as relied upon by the plaintiff, are set out in paragraph 9 of the plaintiff's statement of claim filed on 8 May 2012. Those allegations are replicated as follows:

"(a) Failing to administer the treatment in a safe and competent manner;

(b) Failing to properly operate the equipment used in administering the treatment, namely the laser;

(c) Failing to ensure that the temperature of the laser was not too high;

(d) Failing to test the temperature of the laser prior to commencing the treatment;

(e) Failing to discontinue the treatment in circumstances where the plaintiff complained of pain consistent with burning of the facial skin;

(f) Failing to discontinue the treatment in circumstances where the treatment was producing a distinct smell of burning flesh;

(g) Failing to warn the plaintiff prior to administering the treatment of the risk of permanent scarring;

(h) Failing to promptly treat the plaintiff's burns following the treatment;

(i) Failing to refer the plaintiff to a recognised facial skin professional for restorative care in a timely manner following the treatment;

(j) Arranging for the plaintiff to undergo numerous superficial remedial treatments in circumstances where medically recognised alternatives were available if administered in a timely manner;

(k) Failing to inform the plaintiff of the actual extent of the damage to her facial skin in circumstances where the defendant knew, or ought to have known, of the extent of the damage, thereby depriving the plaintiff of the opportunity to seek early restorative treatment."

11 In the proceedings, the plaintiff called no evidence, expert or otherwise, directed at establishing or identifying the required standard of care expected of a cosmetic dermatology clinic, in the circumstances in which the plaintiff received the treatment in question.

12 Remarkably, for this type of claim, with regard to particulars (a) to (d) above, the plaintiff called no evidence, expert or otherwise, to identify what constituted a safe and competent standard of treatment to be expected of a clinic of the kind in question. Similarly, no such evidence was called to establish the appropriate temperature or other settings for the laser equipment used in the procedure in question.

13 In respect of particulars (e) to (f) above, the question of whether or not the treatment of the plaintiff's face had been discontinued in a timely and appropriate manner, when the plaintiff experienced pain or a burning sensation in her face, is a factual matter to be determined.

14 In respect of particular (g) above, the question of whether the plaintiff was appropriately warned of the risks associated with the treatment before she submitted herself to it, is a factual matter to be determined following a consideration of the evidence comprising the relevant consent process and the oral evidence of the surrounding circumstances.

15 In respect of particulars (h) to (k) above, the question of whether the after-treatment care of the plaintiff, or any referrals, or absence of referrals of the plaintiff following her injury, are factual matters to be determined on a consideration of the evidence as a whole.

Defences

16 On 21 September 2012, the defendant filed an initial defence which was signed by Mr Robert Gulbahce. That defence was in the following terms:

"1. Advanced Dermatology Group Pty Ltd is currently in a position where it does not know if it was the one who performed the treatment as there have been three companies who operate at that location. The plaintiff's records are currently locked away at an employees home who is oversees (sic) and we do not have access to those records until the 5th of October 2012."

17 On 25 October 2012, the defendant filed a further defence which was also signed by Mr Robert Gulbahce. That defence, which was verified, conceded the following matters:

(a) The defendant company was at all material times duly incorporated and operated a skin clinic known as Advanced Dermatology as a commercial enterprise at premises located at 500 Oxford Street, Bondi Junction ("the clinic");

(b) The plaintiff was at all material times a patient of the clinic and received the treatment described in the statement of claim.

18 The defence of 25 October 2012 also raised the following issues:

(a) An assertion that the plaintiff had sued the wrong defendant in that the treatment obtained by the plaintiff at the clinic was provided by a separate or different entity, namely AD Pty Ltd, which is now deregistered as a company;

(b) A denial that the defendant employed skin specialists and other medical professionals ("skin specialists") to provide skin related treatments, procedures and services to patients of the clinic, including a procedure alleged to have been marketed by the defendant as "Facial Skin Rejuvenation Laser" treatment ("the treatment");

(c) A denial that the defendant was negligent in the manner as particularised by the plaintiff, or at all.

19 The defence of 25 October 2012 did not admit, and therefore required the plaintiff to prove, that prior to her attendance at the clinic, she received various promotional text messages from the defendant on her mobile telephone, offering her the treatment in question. Photographic copies of those text messages were tendered as Exhibit "J". A tabulated and typed transcription of those messages, along with several additional messages, was tendered in Exhibit "L".

20 The defence of 25 October 2012 also raised a pleading question, namely, whether the plaintiff's statement of claim had articulated in a pleaded manner, a relevant duty of care owed to the plaintiff. That defence also raised a question of whether or not the plaintiff's statement of claim pleaded particularised facts capable of supporting a claim as to breach of a duty of care owed to the plaintiff. Those particular defences were not developed in the course of argument and the case proceeded on the assumption that a duty of care was owed, and that an arguable case had been pleaded on behalf of the plaintiff.

21 The defence dated 25 October 2012 also went on to assert that after the plaintiff had been given warnings by the entity AD Pty Ltd of the risk of facial reddening, facial burns, blistering, swelling and scarring, the plaintiff had voluntarily assumed those risks when she agreed to have the treatment in question. It emerged in the evidence that such matters had allegedly been conveyed to the plaintiff by Mr Francis. An assumption of risk defence was not fully developed in the proceedings. Instead, it was argued that the plaintiff consented to the treatment after having been informed of the risk that ultimately materialised, and for which she has brought these proceedings.

22 Despite the plaintiff's legal representatives being on notice, from 25 October 2012, that the defendant had asserted that the wrong corporate entity had been sued in these proceedings, no interlocutory steps had been taken on behalf of the plaintiff to either explore or address that issue before the hearing.

Submissions of the parties

23 The submissions made in support of the plaintiff's liability case were essentially as follows:

(a) The case involved a determination of the respective credibility of the evidence of the plaintiff and that of Mr Francis on key matters of fact;

(b) The plaintiff argued that the evidence established that the named defendant Advanced Dermatology Group Pty Ltd was the entity that had provided the treatment of which she now complains;

(c) In identifying the argued duty of care the plaintiff claims was owed to her, for the purpose of analysing the breaches alleged, the plaintiff sought to equate the relationship between herself and the clinics at which she obtained cosmetic facial treatment, as being akin to that of doctor and patient, with all the attendant obligations carried by such a treatment provider, as was explained in Rogers v Whittaker [1992] HCA 58; (192 175 CLR 479;

(d) The plaintiff's primary case in negligence was for alleged identified breach of the argued duty of care owed, and consequential causation; [See pp 7-13], the plaintiff's alternative case on negligence was based on a res ipsa loquitur argument that was said to give rise to a powerful inference of negligence;

(e) The case posited against the defendant was that although a warning was given (as was ultimately conceded at section 2 of the plaintiff's written submissions), no prior skin testing was undertaken on the plaintiff, and it was argued that there had been no prior discussion concerning adverse outcome;

(f) The plaintiff maintained that she did not know that the treatment in question would involve the use of laser;

(g) The plaintiff maintained that no signed consent form had been obtained from her prior to the treatment in question.

24 On behalf of the defendant, in answer to the case the plaintiff sought to make on liability, Mr Gulbahce essentially submitted that:

(a) The treatment in question was provided by Mr Francis though the entity AD Pty Ltd, and not the entity Advanced Dermatology Group Pty Ltd;

(b) Mr Francis was never employed by, or had he performed treatments on behalf of, Advanced Dermatology Group Pty Ltd;

(c) The argued basis upon which the plaintiff seeks to impute liability to Advanced Dermatology Group Pty Ltd, namely through an original and a copy of a receipt (Exhibit "E" and Exhibit "H"), which, on the evidence, has been submitted to be an inaccurate document in several respects, thus rendering it to be an unreliable piece of evidence for the purpose, contrary to the position argued on behalf of the plaintiff;

(d) The copies of the SMS messages tendered by the plaintiff (Exhibit "J"). were not a reliable basis for inferring that the defendant company carried out the treatment in question;

(e) The plaintiff was informed, and knew of the risks of the treatments she was undertaking;

(f) The evidence of the plaintiff should not be accepted as to her account of the alleged frequency setting changes that she claimed had occurred on the machine used during the course of the treatment session of which she complains;

(g) The plaintiff had a long history of having cosmetic procedures and gave unreliable evidence about her other cosmetic facial treatments and it was argued that she gave an incorrect and incomplete history of such matters at the time the intake form Exhibit "2" was completed on 13 December 2008. It was argued that this was a factor that cannot be overlooked on the causation issue;

(h) It was unlikely that the plaintiff was not informed of the risks of the treatment she had undertaken, and of which she now complains;

(i) The plaintiff seeks, incorrectly as it was argued, to equate the business operation providing the treatment complained of, to the operation of and duties owed by a medical clinic, when that has not been shown to be the fact, nor is it the basis upon which her claim was particularised and by which it had proceeded.

25 Those respective submissions will be referred to and analysed where they arise for consideration in the course of these reasons for judgment.

26 Before identifying the relevant factual background of the case, it is necessary to identify the framework of the principal issues calling for decision. There are a number of sub-issues that arise within those principal issues and these will be identified and resolved where it becomes relevant to do so in the course of my analysis.

Issues

27 The principal issues calling for decision can be conveniently stated as follows:

Issue 1 - Whether it was the defendant company, Advanced Dermatology Group Pty Ltd, and not a company named ADP Pty Ltd, that had provided the plaintiff with the treatment in question on 1 July 2009;

Issue 2 - The overall nature and course of the treatment obtained by the plaintiff at the clinic over the course of time, including the terms and basis upon which that treatment had been provided, and the plaintiff's understanding of those matters;

Issue 3 - Whether, within the meaning of Pt 1A Divisions 2 and 3 of the CL Act, namely s 5B, s 5C and s 5D, the treatment in question was administered in breach of a duty of care owed to the plaintiff, and if so, whether that treatment can be characterised as having been administered negligently;

Issue 4 - The assessment of the plaintiff's damages.

28 Before addressing those issues, it is necessary to identify the relevant factual background to the proceedings.

Factual background

29 The defendant company admitted that at all relevant times, it operated a skin clinic under the business name of Advanced Dermatology, at 500 Oxford Street, Bondi Junction. The relevant times concerning that admission were not defined. That admission must therefore be viewed in context. It was also conceded that the clinic was a commercial enterprise. It was also conceded that the treatment complained of by the plaintiff had in fact been received by her. However, the defendant company denied that either it, or its employees, had administered the treatment in question to the plaintiff.

30 The business name of Advanced Dermatology had, at different times, been associated with different companies, and the evidence discloses that two different Australian Business Numbers ["ABN"] were used by that business at different times. No business name searches were tendered by the plaintiff concerning the ownership or registration status of the trading entity Advanced Dermatology at any particular points in time. The only information made available concerning that business came from the uncontradicted oral evidence of Mr Francis.

31 The first corporate entity referred to in the evidence was RSG Ventures Pty Ltd. That company traded from Level 26, 500 Oxford St, Bondi Junction: T210.29. According to Exhibit "O", which comprised an ASIC Current and Historical Organisational Extract, that company became registered on 21 August 2006. In the period 21 August 2006 to 15 April 2009, that company remained registered. Between 16 April 2009 and 3 November 2010, the company was under external administration through a court-appointed liquidator. Between 4 November 2010 and 8 January 2011, ASIC strike-off action was in progress in relation to that company and it was then deregistered on 9 January 2011. From the date of incorporation until the date of deregistration, the sole director of the company was Mr Robert Gulbahce. The shareholding was divided equally between Mr Robert Gulbahce and Mr Samuel Daniel Francis.

32 The second corporate entity referred to in the evidence was AD Pty Ltd. That company traded from Level 6, 500 Oxford St, Bondi Junction: T210.31. There were no historical ASIC documents tendered in relation to that company notwithstanding, that since 25 October 2012, the defendant had put the plaintiff on notice that AD Pty Ltd was the suggested entity that was said to have provided the treatment in question to the plaintiff. According to the uncontradicted evidence of Mr Francis, the directorships and shareholdings of AD Pty Ltd were held by his sister, Ms Oslem Gulbahce. By the time the hearing had commenced, AD Pty Ltd had also been wound-up. In these proceedings, the defendant company maintained that AD Pty Ltd was the relevant corporate entity that had provided the plaintiff with the treatment of which she now complains.

33 The third corporate entity referred to in the evidence was Advanced Dermatology Group Pty Ltd. According to Exhibits "C", "M" and "N", that company became registered on 25 August 2008. Between 25 August 2008 and 14 November 2010 that company had remained registered. Between 15 November 2010 and 9 February 2011, ASIC strike-off action was in progress, however, it appears that strike-off action was not pursued to completion, and the company currently remains registered. The ASIC records of the directorship of that company show that Mr Robert Gulbahce was appointed as a director on 17 December 2008. At that time, he replaced a Mr Stefan Mazy, who was a director between 1 November 2008 and 17 December 2008. Mr Robert Gulbahce remains the sole director of the company. The ASIC records show that the shareholding in this company is divided equally between Mr Robert Gulbahce and Mr Samuel Francis.

34 At all times Advanced Dermatology Group Pty Ltd listed its principal place of business as being '6013D', 500 Oxford Street, Bondi Junction, NSW. From 25 August 2008 until 19 January 2011, that company was located at L26 of that address. From either 20 January 2011, or 22 February 2011, the information on the ASIC form being ambiguous, it seems that this business was simply identified as being located at '6013D' at 500 Oxford St, Bondi Junction. The oral evidence indicated these differently described addresses involved a change of locations from L26 to L6 in the same building complex.

35 In the paragraphs that follow, before addressing Issues 1 to 4, I set out my findings on the relevant background facts.

Plaintiff's background

36 The plaintiff was born in 1971. At the time of the treatment complained of, she was aged 38 years. She is presently aged 42 years. After initially pursuing a career in clerical work, she had worked as a travel consultant for some years leading up to the time of the treatment of which she complains. She presently works for the Department of Corrective Services as a Probation and Parole Case Manager in the Community Compliance Group of that Department.

37 In the lead-up to the treatments the plaintiff had sought out from Advanced Dermatology, she had been concerned about the appearance of some areas of pigmentation in the skin on her face. She wanted to have this treated, and she was also interested in the cosmetic procedure known and marketed as non-surgical facelift and skin rejuvenation: Exhibit "D".

Plaintiff's history of attendances at the clinic

38 The plaintiff attended for treatment at the Advanced Dermatology clinic or centre on five occasions before she suffered her facial injuries. The first attendance was a consultation for assessment. The next four were treatment sessions. The plaintiff's injury occurred on he fifth treatment session. In the paragraphs that follow, those visits are described in chronological sequence.

39 The plaintiff's first attendance, on 19 February 2007, was after she had responded to a newspaper advertisement. On that occasion she attended the clinic on Level 26 at 500 Oxford St, Bondi Junction. On that occasion, she was assessed by a medical practitioner identified in the evidence as Dr Sarah Freilich. Exhibit "D" described Dr Freilich as a staff member of Advanced Dermatology Centre for Cosmetic Laser and Anti-Ageing. Exhibit "D" is a client intake form for that business and was designed to record client information and some details of the medical assessment of the client for suitability for treatment.

40 There is no evidence that Dr Freilich provided the plaintiff with any treatment. It is not alleged that Dr Freilich had been negligent in any respect, whether by way of examination, advice, or treatment. Following the plaintiff's completion of the questionnaire comprising Exhibit "D", she was booked in for a 60 minute facelift procedure that was scheduled to take place on 28 February 2007.

41 At the plaintiff's second attendance at the centre, on 28 February 2007, she had the first of three planned laser treatment sessions that comprised the described 60 minute facelift. The plaintiff stated that she did not recall receiving either a general or a specific warning in relation to the treatment she had undertaken at that time. This does not necessarily mean that she received no warnings on such matters. That is a matter to be assessed on the evidence and this will be addressed in my consideration of Issue 2.

42 When the plaintiff's evidence was explored in relation to her stated lack of recall of any warning being given before that treatment, she reiterated that she believed there had been no warning. She based that belief on her memory of those events: T25.45. The reliability of the plaintiff's memory account of those and subsequent events must be assessed in the context of the evidence as a whole.

43 The plaintiff described those three initial treatments in 2007comprising the non-surgical facelift, as having taken place over the time period of a "year, maybe two", and as having been without problems: T26.36. At T26.8 - T26.13, she described the treatment in the following terms:

"Q. Do you recall how that was undertaken?

A. Yes.

Q. Could you explain?

A. It's a machine. They roll it on your face, and it's like a flicking sensation, and that's pretty much what they do all over your face."

44 Following the completion of the initial course of three treatment sessions comprising the first 60 minute facelift over a number of months, the plaintiff said she had received a number of marketing overtures from the centre in the form of text messages sent to her mobile telephone, and stated to have been from Advanced Dermatology, inviting her to consider other cosmetic treatments that were on offer from the clinic. Exhibit "L" shows that she only received one such message, on 9 December 2008.

45 In response to that overture made to encourage her to return to the centre, on 13 December 2008, the plaintiff again attended at the centre, which by that time was at a different location but within the same building, in Bondi Junction. At T28.25 - T28.42, she described the consultation in December 2008 in the following terms:

"Q. was it the same address?

A. As previously, yes.

Q. The person you spoke to is a woman?

A. Yes.

Q. Can you just relate the conversation that you had?

A. What, in

Q. As best you can, yes.

A. Okay. Basically, she said that it's a very quick very effective procedure. There's no down time, there's - there's no pain, there's - pretty much you walk in you walk out. Worst case scenario you get a bit of pink in the face and it's, yeah, it's good.

Q. So what was the procedure that she was referring to?

A. The 60 minute facial."

46 An issue arises at this point in the chronology of events as to which entity the plaintiff had consulted when she visited the centre on 13 December 2008. This is the subject of a more detailed consideration in respect of Issue 1.

47 The plaintiff said that to her knowledge, on 13 December 2008, she did not sign a form for the treatment she received at that time: T30.43. That evidence was at odds with Exhibit "2"; which comprised another client intake form which was similar to Exhibit "D", but it was more detailed in its questions. That form had the letterhead logo "Advanced Dermatology Centre for Cosmetic Laser and Anti-Ageing", and the footer to each page of the document identified the relevant trading entity to be "RSG Ventures Pty Ltd" trading as "Advanced Dermatology (ABN 51121 326 190)".

48 The plaintiff then went ahead with this second tranche of treatment sessions. She described the second lot of treatment sessions as a 60 minute facelift. She had submitted herself to 2 out of 3 of those scheduled treatment sessions, making it a total of 5 treatment sessions that she had received up to that point in time. She said this second lot of treatment sessions involved a different machine. That evidence was disputed by Mr Francis. At T29.9 - T30.32, the plaintiff gave evidence about the second 60 minute facelift procedure, in the following terms:

"Q. How many treatments were you expecting to obtain?

A. Three.

Q. Was the machine that was used on that occasion the same as the machine that had been used on the previous three treatments that you mentioned?

A. No.

Q. Are you able to indicate how it differed?

A. For a start they didn't - it was a different sensation. It wasn't - before it was like they were rolling something over your face, it was like a roller. This time it was different, it was - they were using another device that was over your face. There was no roller involved. It was more like they put it on top of your skin and zap it. It's a different

Q. So when you say - you're demonstrating there.

A. Yeah.

Q. You're using your fist and

A. Yeah.

Q. pushing it onto your face

A. Yeah.

Q. and you mentioned the word zapping. What do you mean

A. Yes.

Q. by that?

A. Well, it's a totally different sensation. Before you could feel like a roller on your skin, like they're rolling it. It's like a mini roller, and they're rolling it against your skin, and it flicks you. This time it was like a zapping sensation.

HIS HONOUR

Q. What was the flicking? Was that as a result of some friction on the face or was it electrical or

A. It's from the - yeah, from the roller itself.

Q. Which

A. Imagine a mini roller, like, just going over your skin, and it's just like that, and it's

MAXWELL

Q. A bit like a man's electric razor or something like that. Is that what you're talking about?

A. Yeah.

Q. Without the shaving effect.

A. Yes, but it's - yeah, it's

...

WITNESS: It's hard to describe. But it's a flicking sensation, it's not - you don't - it's not a

HIS HONOUR

Q. Is it physical or is it electrical?

A. I'd say it's a reaction with the skin because you're pushing against it. It's like

Q. Like friction?

A. Yeah, like an impulse. Yeah, probably electrical, possibly, I don't know.

HIS HONOUR: Go on, Mr Maxwell.

MAXWELL

Q. Then on this occasion - that is, December 2008 - was the procedure the same length of time, shorter, longer?

A. Probably more or less the same.

Q. Did you notice anything following the treatment, any pain or

A. No."

49 Mr Francis gave evidence that on 1 July 2009, it was he who had provided the laser treatment session of which the plaintiff now complains. He said that treatment had been provided to her by him on behalf of AD Pty Ltd. He said that the same laser machine was used on the plaintiff in respect of all the treatments she had received.

50 At T30.45 - T30.47, the plaintiff stated that before undertaking the second 60 minute facelift in December 2008, she had not been told of any concerns she should have about the nature of the treatment. The evidence of Mr Francis was to the contrary. This is a matter to which I shall return in my consideration of Issue 2.

51 The plaintiff had intended to have all of the series of 3 treatment sessions comprising the second 60 minute facelift. After the first of those treatments, she had found it necessary to delay the second appointment. This led to a longer time interval between the first and the second appointments for completion in that second series of treatment sessions.

52 The second appointment in that second series of three treatment sessions that comprised the second 60 minute facelift, took place on 1 July 2009. It was this occasion that has led to the plaintiff's grievances that are the subject of these proceedings.

Injury

53 On 1 July 2009, the plaintiff submitted herself to the second laser treatment session in the second tranche of treatments, namely her 5th treatment session. This session was directed to the skin in multiple areas of her face, comprising her brows, her eyelids, her cheeks, her nasolabial folds, the areas around the margins of her lips, and her chin. The evidence was unclear as to whether, and at what locations, and to what extent, some of this laser treatment involved both single and multiple passes of the laser device over her facial skin.

54 The treatment in question was said to involve the non-invasive administration of transmitted energy from a laser to the sub-dermal structures of these areas, with some of the treatment possibly but not certainly involving multiple passes with the laser. The stated action of the treatment was to create some kind of injury below the skin surface and to promote collagen production and healing, resulting in tighter facial skin.

55 In the course of the treatment session on 1 July 2009, at some stage, the plaintiff said she experienced a painful burning sensation in her face, which then resulted in blistering, from which disfiguring facial scars later developed. She described smelling burning flesh. Mr Francis said the smell was not from burning flesh, but burning facial hair.

56 The medical evidence discloses that the plaintiff sustained partial thickness burns to the areas of her face that now show dermal scarring. This includes the cheeks, the margins of her lips, the nasolabial folds and the glabellar region.

Treatment and recuperation

57 The plaintiff did not initially seek out medical assistance once the problem became known. Subsequently, she was in communication with the Advanced Dermatology centre, and had expected to receive some kind of creams that were to be sent to her. This did not eventuate. The plaintiff remained at home for some time as she had been told to stay out of daylight or sunlight, and to keep her face cool. She said she was also embarrassed by her appearance, and she had waited for the facial swelling to abate before venturing outside her home. At this time she happened to be on holiday leave which enabled her to do so. A series of 16 photographs were taken of the plaintiff's face during that time. A viewing of those photographs makes her reaction of not wanting to be seen outside her home, entirely understandable: Exhibit "F".

Medical and allied assessments

58 At some stage after she received her facial burns, the plaintiff consulted Dr LE Nighjoy, a general practitioner. The date of the first consultation is not apparent in the evidence. Dr Nighjoy referred the plaintiff to Dr Peter Hayward, a consultant plastic and reconstructive surgeon. A report from Dr Nighjoy was notably absent from the evidence tendered in the proceedings.

59 On 31 March 2010 Dr Hayward wrote to Dr Nighjoy and advised that neither medical therapies nor cover up makeup alone were likely to be of assistance to the plaintiff. He advised surgical excision to assist in disguising the cosmetic defects evident in the plaintiff's facial skin, in conjunction with use of some cover-up makeup.

60 On 17 April 2010, at the request of her mother, the plaintiff consulted Mr Gerald Glancey, a consultant clinical psychologist, whom she had seen previously for other issues. The plaintiff saw Mr Glancey for the assessment and treatment of her depression related to the results of the treatment in question.

61 On 8 November 2011, Dr Hayward wrote to the solicitor for the plaintiff reiterating the above advice. Despite the absence of any acknowledgment of the Expert Witness Code within Dr Hayward's letter, following argument, that letter was admitted into evidence. In it, Dr Hayward expressed the following opinion:

"Conclusion: This woman alleges facial scarring resulting from laser treatment. Her history and examination would indicate that her injuries are consistent with the stated cause. Her injuries are now stabilized. In my view she will be left with permanent scarring of the face. On a scale of mild, moderate and severe I would rate them as severe because of their length and visibility. Her therapeutic options are very few. I believe scar revision will serve to flatten her scar and allow her to wear makeup more effectively. In my opinion she will always have permanent scarring and be required to wear concealing makeup for the rest of her life despite any improvement made by subsequent treatment, including surgery."

62 Dr Hayward estimated the total costs involved in the suggested surgery, which he thought should be undertaken in stages, to be of the order of $12,000.

63 On 5 December 2012, at the request of her solicitor, the plaintiff was examined by Dr Desmond Rea, a consultant plastic and reconstructive surgeon. Dr Rea documented his description of the scars as being on the root of her eyebrows, on the inferior edge of the right check and right side of the nose to the outer edge of the mouth, on the outer angle of the right side of the mouth. He also noted areas of altered skin texture of each cheek. He also noted scars on the left cheek and in the left half of the upper lip. He described scars around the structures of the lips, and altered areas of pigmentation on the forehead.

64 Dr Rea expressed his opinion on the plaintiff's facial disfigurement in the following terms:

"This patient has certainly had an unfortunate reaction to laser skin therapy treatment which she received; I would state that it would have been more prudent for the laser therapy centre which she attended, to do a trial on an area of skin in a region which could be concealed (such as behind the ear) to check the reaction the patient may have.

This patient does appear to have had a severe reaction to the laser therapy treatment which she received so that she does now have actual scarring at several sites on the skin of the nose, lips, and cheeks, as I have described in detail for the dimensions of each of these scars in the physical examination as set down above.

In addition the patient does have the obvious area of pigmentation on the forehead and on the cheeks, which is quite evident at a distance of more than 1.5 metres: there is no doubt that this would be quite an embarrassment to the patient, and even a restriction in the type of work which she does do as a parole officer in the community.

There are no measures I would advise, of a surgical or laser nature, which would benefit this patient: they may want to approach a plastic surgeon as a referred patient, to ask such advice.

The only recommendation I could make would be to try an application of a depigmenting cream to the affected sites: initially this should only be carried out on a very small area, which could then be concealed if there is no improvement from such therapy.

I would not recommend any surgical measures to try and improve the scarring which the patient has: as I advised the patient, this would simply be replaced by a similar scar at the site."

65 In his report dated 17 February 2011, Mr Glancey identified the five dates on which he saw the plaintiff for treatment in the period between April 2010 and February 2011. After reviewing the plaintiff's substantial list of psychological symptoms, he identified a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also stated that the prognosis for the plaintiff's psychological condition remains uncertain.

66 As part of her liability case, the plaintiff relied on Dr Rea's comment that "it would have been more prudent ... to do a trial on an area of skin" to support the claim in negligence. I shall return to that matter in connection with my consideration of Issue 4.

Disabilities that remain

67 As a result of the described events, the plaintiff has been left with significantly disfiguring facial scarring. This causes her considerable upset on a daily basis. She presently applies makeup in an endeavour to conceal the scarring. Those efforts are not entirely successful. She has been left to suffer embarrassment and resultant psychological difficulties, including depression, and a feeling of social isolation.

68 The plaintiff has partial thickness permanent dermal scarring to her right cheek, her left cheek, the margin of her lips, the root of her nose, and the glabellar region. The scarring is pigmented and depressed in its appearance. She has an area of altered pigmentation in the skin of her forehead. These have been attributed to a severe reaction to the laser therapy treatment she received. She finds the scarring embarrassing, particularly when she meets people for the first time, and in connection with her work as a parole officer in the community.

69 These problems have caused the plaintiff to become self-conscious and depressed. She still exhibits emotional distress when asked to speak about the treatment in question. She continues to get upset when she sees her scarring in the mirror. In the opinion of Mr Glancey, a clinical psychologist, she is consumed with feelings of regret and painful memories of the treatment in question. Her self-confidence has been adversely affected, and she is emotionally fragile. She has a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. The prognosis for this condition is uncertain, as her scarring is permanent, and surgery will not be entirely corrective of the scarring.

Mitigation

70 The plaintiff has not yet sought to have the recommended remedial surgery to try and reduce the noticeability of her facial scarring. Her explanation for not doing so until now is that she lacked the required funds for that treatment, and she was awaiting the outcome of these proceedings before having the suggested remedial treatment. That evidence was unchallenged and I accept it as comprising a reasonable explanation for delaying further treatment. I do not consider that the delay to date should be properly characterised as amounting to an unreasonable failure to mitigate her damage.

Issue 1 - Whether it was the defendant that treated the plaintiff

71 The plaintiff claims the treatment she received on 1 July 2009, and of which she now complains, was provided to her by the defendant company. The defendant company disputed that allegation.

72 Against the foregoing proposition advanced on behalf of the plaintiff, the defendant company relied upon the evidence of Mr Francis. In essence, Mr Francis acknowledged that he had in fact provided the laser treatment of which the plaintiff complains. However, he stated that he had provided that treatment through the corporate entity AD Pty Ltd.

73 Before examining the oral evidence concerning the issue of which entity treated the plaintiff on 1 July 2009, it is both convenient and relevant to examine the documentary evidence touching upon that issue.

74 The first aspect of the documentation that merits close examination is the business name Advanced Dermatology. The documentary evidence shows that at different dates, that business name had operated under two different Australian Business Numbers.

75 The first such number appears in the documentary evidence on 13 December 2008, namely the client intake form that comprises Exhibit "2". That ABN is 51 121 326 190. That Exhibit also identifies the fact that at that time, on the face of the document, that business name was represented to be the trading entity of RSG Ventures Pty Ltd. There is no room for doubt that RSG Ventures Pty Ltd ceased to exist on 20 April 2009, when it was wound up pursuant to a court order: Exhibit "O".

76 Mr Francis stated that his company, AD Pty Ltd, commenced to operate soon afterwards on 27 April 2009. He also said that his new company, AD Pty Ltd, had honoured the former treatment arrangements that had been entered into between clients of the former entity RSG Ventures Pty Ltd: T195.22; T210.18-T210.25.

77 Accordingly, there is no room for doubt that when the plaintiff consulted the trading entity Advanced Dermatology on 13 December 2008, she was dealing with RSG Ventures Pty Ltd: Exhibit "2". Consequently, there is no basis from within the documentary evidence to suggest that the plaintiff had, on 13 December 2008, entered into arrangements with the defendant company Advanced Dermatology Group Pty Ltd for such treatment sessions. This is so even though the defendant company had become registered on 25 August 2008: Exhibit "M".

78 There is nothing from within the documentary evidence to suggest between 25 August 2008, when the defendant company commenced to exist, and 13 December 2008, when the plaintiff entered into arrangements with RSG Pty Ltd, as is shown by Exhibit "2", that the defendant company owned and operated the business name Advanced Dermatology and transferred it to RSG Ventures Pty Ltd on or shortly before 13 December 2008, when Exhibit "2" was filled in by the plaintiff.

79 In my view, in the absence of evidence to the contrary, the compelling inference is that the business name Advanced Dermatology must be presumed to have remained with RSG Ventures Pty Ltd until that company was wound up on 20 April 2009 in accordance with a court order: Exhibit "O".

80 An argument available to the plaintiff is that the defendant company Advanced Dermatology Group Pty Ltd (which had the ABN 132 916 128) operated under the name Advanced Dermatology according to the concession made in the defence filed on 15 October 2012. In that regard, it was conceded that at all material times, Advanced Dermatology Group Pty Ltd was duly incorporated and operated a skin care clinic known as Advanced Dermatology at premises at 500 Oxford St, Bondi Junction.

81 In my view that concession is of little assistance in clarifying the issue of whether it was the defendant company that had actually given the plaintiff the critical treatment session on 1 July 2009. That is because the phrase "at all material times" is undefined, and it has to be read in light of the non-controversial fact that AD Pty Ltd started to trade on 27 April 2009. The concession also has to be read in light of the unchallenged evidence of Mr Francis that his company AD Pty Ltd was trading as Advanced Dermatology & Laser Clinics: T216.5, and in light of the uncontradicted evidence of Mr Francis to the effect that his company AD Pty Ltd was, at the time the plaintiff was treated on 1 July 2009, in the course of honouring agreements for treatments that had previously been issued by the former entity RSG Ventures Pty Ltd: T195.22; T210.18-T216.25.

82 In my view, the plaintiff relies upon the flawed argument to the effect that in the event negligence is established (as to which see the consideration of Issue 3), the defendant company must be held liable to the plaintiff because the receipt for services provided to the plaintiff on 1 July 2009 was issued under the name of Advanced Dermatology which has the ABN number relating to Advanced Dermatology Group Pty Ltd, the defendant company.

83 I consider that argument to be unpersuasive, particularly in view of the evidence of Mr Francis, which I accept, that there are doubts about the correctness of the information on that receipt because of the wrong address details as at the date of issue, and the fact that it was he, and not Bettina Clifford who had treated the plaintiff on 1 July 2009. Whilst errors on the receipt are not the fault of the plaintiff this does not derogate from the need for the plaintiff to prove her case against the correct party. That was a matter on which her solicitors were on notice since 25 October 2012.

84 It is common ground between the parties that the treatment in question, and which was described by the plaintiff, was in fact carried out by Mr Francis and not Bettina Clifford, as was stated in Exhibit "E" and Exhibit "H". The stated address of the business, which, on 1 July 2009 was in fact at Level 6 at 500 Oxford St, whereas the receipt stated that the business was at Level 26 at that street address. These matters persuade me that there are concerns over the accuracy of the receipt, and that it may well have been created by an employee during a transition of the premises and the business arrangements at the respective premises, and is therefore not a reliable guide to determining which entity treated the plaintiff.

85 The ABN listed on the receipt dated 1 July 2009 is 52 132 916 128, which is the defendant company's ABN, was different to the ABN of 51 121 326 190 which was shown on Exhibit "2". In my view, the different ABN references as at 13 December 2008 and 1 July 2009, suggest that as at those dates, there were different trading entities using a form of the name Advanced Dermatology, but the documentary evidence does not provide a reliable guide to resolving the identity of the treating entity.

86 These matters could have been readily clarified through evidence by the tender of a business name search.

87 In my view, without evidence clarifying the above concerns, and without evidence to the contrary, in the face of the evidence of Mr Francis, which remained un-contradicted, that at the time the plaintiff was treated on 1 July 2009, his company AD Pty Ltd operated the business Advanced Dermatology & Laser Clinics (T216.5 and Exhibit "G"), I consider it would be unsafe and unreasonable to infer or conclude that on 1 July 2009, the plaintiff was being treated by the defendant company Advanced Dermatology Group Pty Ltd. This is so even though, at T215.43, he acknowledged that in July 2009, he had been performing procedures on patients on behalf of Advanced Dermatology Group Pty Ltd. That does not compel the conclusion that on 1 July 2009, he treated the plaintiff on behalf of that company, a matter he denied.

88 Exhibit "G" identifies the trading name Advanced Dermatology & Laser Clinics as at 2 December 2009, when the plaintiff agreed to have the subsequent Derma Roller treatment. It would be unreasonable, on the evidence adduced, to infer that those same arrangements applied as at 1 July 2009, especially in view of the historical searches evidence of registrations, liquidations and formation of new companies in relatively short time frames, and the absence of any evidence of business names searches.

89 In my view, no sound or persuasive basis has been put forward to suggest that the evidence of Mr Francis on the above matters should not be accepted. His evidence as to the trading arrangements involving those business and company names, was not inherently or glaringly improbable and it was not contradicted by cogent and unambiguous evidence to the contrary.

90 An examination of the evidence of the plaintiff shows that her evidence to the effect that it was the defendant company she dealt with on 1 July 2009 was based on assumptions she had made.

91 Those assumptions were the commonality of the address of the businesses, the business names which included the words Advanced Dermatology, and some staff members that were in common to both entities. In my view, on the evidence and context of the issues in this case, these matters represent an unreliable basis for inferring or finding that it was the defendant company that treated the plaintiff on 1 July 2009. This is so particularly in light of concerns over the accuracy of the contents of the receipt that comprises Exhibits "E" and "H". I therefore consider that the proposition relied upon by the plaintiff should not be accepted when weighed against the affirmative evidence of Mr Francis, who stated that it was AD Pty Ltd that treated the plaintiff on that date.

92 The plaintiff pointed to Exhibit "J", the screen shots comprising a series of SMS messages sent to her from Advanced Dermatology over a period of time as evidence of the involvement of the defendant company in her treatment, and the typed transcriptions of those messages, Exhibit "L". On reading the promotional material within those SMS messages, it seems to me that only message number 16/165 dated 5 April 2010 could arguably be relevant. It states:

"Dear Veronica, this is a message from Advanced Dermatology. Unfortunately your clinician Tina has had to pull out of tomorrow due to illness. Sadly that means we have to cancel your appointment. We apologise for the inconvenience and will be in touch ealry (sic) this week to give you another booking at your earliest convenience. Regards, Robert"

93 Assuming that the person described as Robert in the above SMS message is Mr Robert Gulbahce, a director of the defendant company, I consider that this message does not advance the plaintiff's case to prove that it was the defendant company that treated her on 1 July 2009.

94 This is because when the colour copy version of the text message is examined in Exhibit "J", it shows a transmitting mobile telephone number ending in 2445, which is different to all the other mobile telephone numbers that appear in the Exhibit. Furthermore, the message is dated 5 April 2010, which is well after the 1 July 2009 treatment session of which the plaintiff complains. Without more, I consider this is an insufficiently persuasive basis upon which to infer that on 1 July 2009 the plaintiff was dealing with Mr Robert Gulbahce's company Advanced Dermatology Group Pty Ltd.

95 Instead, I prefer the evidence of Mr Francis, which was tested by cross-examination and was not relevantly contradicted. I accept his evidence that it was he who treated the plaintiff on 1 July 2009, and that he did so whilst acting on behalf of AD Pty Ltd, not Advanced Dermatology Group Pty Ltd.

96 In my view, the compelling conclusion on the foregoing analysis is that the plaintiff has sued the wrong entity. Therefore, her claim against the defendant company is irredeemable, and should not succeed. This circumstance had been effectively conveyed to the plaintiff's solicitor by means of the defence filed on 25 October 2012. Unfortunately, no early interlocutory measures were pursued in order to seek to clarify those matters before the trial.

Issue 2 - Nature and course of the treatment, and plaintiff's understanding

97 When the plaintiff attended the Bondi Junction premises of Advanced Dermatology Centre for Cosmetic Laser and Anti-Ageing on 19 February 2007, she clearly did so because she was interested in cosmetic facial treatment, which is why she responded to the newspaper advertisement that led to her attendance at that centre at that time.

98 The plaintiff commenced her attendances at that centre in 2007 against a background of in the past having had consultations with at least one other cosmetic treatment provider concerning cosmetic facial treatments, including with a practitioner who had offered her laser treatment to her face, which she had declined some years earlier because of her understanding of the risks involved.

99 I infer from that history that the plaintiff was not naive on matters of cosmetic facial treatments at the time she attended the Bondi Junction centre in February 2007, and she was not naïve on such matters when she filled out the front portion of the client intake form that became Exhibit "D" in these proceedings.

100 Amongst other things, by that form, the centre, which identified itself and the nature of its business on its letterhead as providing laser treatment, had asked the plaintiff to state her interest or expectations with regard to treatments she wished to discuss, which from the context, could only have related to cosmetic treatment.

101 In that form, by her answers, the plaintiff stated that she was interested in discussing a treatment that she identified as a non-surgical facelift. A commonsense analysis indicates in that context, a reference to facelift treatment involving something active. Similarly, the reference to the treatment being non-surgical clearly involved the notion that the skin would not be cut into or broken in the course of such treatment.

102 The remainder of the form that comprised Exhibit "D" was filled out by a medical practitioner at the centre, who noted the plaintiff's concerns over the nasolabial and jowl areas of her face, and sagginess under her eyes. That form also noted that the consultation with the medical practitioner had lasted for 30 minutes, in which a 60 minute facelift procedure was discussed, at a quoted price of $3000 for 3 treatments, following which a booking was made for the plaintiff to have the treatment discussed, which was then planned to take place 9 days later, on 28 February 2007.

103 The oral evidence of the plaintiff was to the effect that she had never had the risks of any of the treatments she had undergone discussed with her, and she had no warnings as to adverse outcomes, and she did not know she was agreeing to laser treatment to her facial skin.

104 Having regard to the history I have summarised in the preceding paragraphs, and having regard to the plaintiff's evidence, I find myself unable to accept her evidence to the effect that she had received no discussion or warnings as to the risks involved in the treatment, and that she did not understand that laser treatment was being discussed with her.

105 The form the plaintiff had filled in referred to the centre as being one which provided cosmetic laser and anti-ageing treatment. She had agreed to pay $3000 for 3 treatment sessions. I do not accept that the plaintiff, whose income was from wages at the time, thought that she was simply getting some kind of massage treatment to her face at a cost of $3000 when she agreed to have the first tranche of 3 treatment sessions commencing in February 2007.

106 I also find it highly improbable that in respect of those first 3 treatment sessions, that the plaintiff did not know that she was agreeing to cosmetic laser treatment to her face, notwithstanding her evidence to the contrary.

107 I also find it improbable that the plaintiff had spent 30 minutes with a medical practitioner in which the treatment was discussed in terms of benefits only, with the only complication being a possible pinking of the appearance of the face, as she claimed at T28.38, without a concomitant discussion about risks that may be associated with such treatment.

108 There was an aspect of the evidence of the plaintiff that raised doubts as to the reliability of her testimony on matters of detail concerning the treatments in question because she had in the past editorialised some matters of detail. For example, on 13 December 2008, when she filled in the patient intake form that comprised Exhibit "2", she answered "No" to a question that asked her to indicate whether she had any cosmetic procedures in the past. That answer was clearly wrong.

109 When the plaintiff was asked to explain why she gave that factually incorrect answer to the question asked of her in the client intake form, she gave answers to the effect that she regarded cosmetic procedures to be defined only as "something like Botox" injections": T309.24; T309.45. In the context in which that evidence was given, I found that explanation glib and entirely unconvincing. That assessment raised a concern over the reliability of the plaintiff's evidence generally on matters of important detail in dispute in the proceedings.

110 A controversy emerged in the evidence as to whether the plaintiff had signed a consent form for the treatment that commenced in 2007. No such form was produced in evidence although Mr Francis claimed there would have been one in the terms of Exhibit "G" and Exhibit "1", which were later iterations of consent forms used by the entity AD Pty Ltd.

111 In that regard, at the first level of analysis, I do not consider the unavailability of a consent form in relation to the 2007 treatment sessions to be critical to issues to be decided in these proceedings because those first 3 treatments sessions had proceeded uneventfully, and there were no adverse outcomes at the conclusion of those treatment sessions.

112 It is against that background that the plaintiff attended the centre for further treatments in 2008 and in 2009.

113 On the issue of whether or not consent had been obtained from the plaintiff for those subsequent treatments, and as to whether the plaintiff had been warned about risks of potential adverse consequences from the treatments she was undertaking, on behalf of the plaintiff, great reliance was placed upon the absence of documentation evidencing such matters.

114 In some cases where there is a live issue as to whether consent had been obtained or whether appropriate warnings had been given, the absence of such documents may be influential on deciding whether consent or warnings had in fact been given. In my view, on the evidence, this is not such as case, because of the explanations provided by the evidence of Mr Francis, which were not relevantly contradicted. On this issue it is necessary to examine some critical aspects of the oral evidence.

115 The plaintiff stated that she had not received any specific or general warnings in relation to the possible outcome of the type of treatment she was about to undertake: T25.36. When that evidence was explored, she explained that evidence was based upon a belief to that effect, based upon her memory: T25.42; T25.45. She took a similar approach in relation to whether she had signed a consent form in December 2008 (T30.43), and also in relation to the treatment she obtained in July 2009: T32.29.

116 The plaintiff's evidence concerning the absence of a signed consent form in July 2009 was qualified by the rider "not that I can recall, anyway": T 32.19.

117 Those matters in the plaintiff's evidence also caused me to entertain some significant doubt about the accuracy and the reliability of her recollection of key relevant events concerning those matters.

118 The plaintiff's qualified recollections were in contrast to the more definite and clear evidence of Mr Francis, who was adamant that the procedures of his company, in July 2009, were that a procedure of the kind undertaken by the plaintiff would not have been performed by him if there was no signed consent form (T220.3) and without a pre-treatment discussion on potential adverse outcomes (T184.45-T 186.1) which included the matters that materialised in the plaintiff's case, namely redness, hyper-pigmentation, blisters and scarring: T181.29; T185.15.

119 The evidence of Mr Francis on matters of consent and warnings was more specific, and was based upon his unqualified recollection (T232.1-T232.6), and in my view, it had the ring of truth about it. In coming to that view, in weighing Mr Francis' evidence with that of the plaintiff, I had considered the possibility that the evidence of Mr Francis could possibly have been shaped or tailored in order to assist his brother's company in this litigation. I discounted that possibility as I could not see any basis for such a view, other than impermissible speculation, and it was also contrary to my impression of his evidence. I therefore have to accept his evidence on matters of consent and explanation of risk in preference to the evidence given by the plaintiff on those matters.

120 Before reaching that view, I considered whether the evidence of Mr Francis on the issue of the consent form should be discounted because on one view, it was convenient that parts of the plaintiff's treatment file were not able to be located. However, I consider that Mr Francis satisfactorily explained those circumstances by reference to his belief that client documents had been stolen from the clinic by a third party. I considered that explanation reasonable, plausible, and not inherently improbable, especially given that the valuable laser equipment itself had also been stolen. I considered that the pressured circumstances of the interrupted manner in which the evidence of Mr Francis emerged on the matter of stolen records, when the cross-examiner sought to interrupt his answer, provided insight in favour of accepting that evidence as I considered that evidence had been given without guile: T230.40-T231.8.

121 Another matter that could possibly be considered concerning the absence of relevant records is the fact that both RSG Pty Ltd and AD Pty Ltd are now companies that have ceased to operate and have been liquidated. This of itself could give rise to some questions as to the whereabouts or custody of documents. However, as that matter was not explored in the evidence, I have disregarded it as speculative.

122 I now turn to consider two further areas of dispute within the evidence. The first relates to the issue of whether the laser machine used to treat the plaintiff in 2009, was the same machine used to treat her in 2007 and 2008, as was maintained by Mr Francis but contradicted by the plaintiff. The second area concerns the events that transpired in the course of the treatment applied to the plaintiff's face on 1 July 2009.

123 As to the identity of the machine used to treat the plaintiff, Mr Francis maintained it was the same machine at all times: T191.37. He also explained that it was an expensive machine that had been purchased from family savings, which tends to support the notion of there having been a single machine, as he claimed.

124 In contrast, the plaintiff believed the machine used in the 2009 treatment session to have been a different one to the one used to treat her in 2007: T49.25. On that issue, I consider that the plaintiff's evidence in that regard is less reliable than that of Mr Francis. He had performed about 1000 procedures using the machine at the centre, and the plaintiff and only been in the treatment room at the premises on five occasions, and at those times she was in positions for treatment where the machine would not have been her primary focus or view. In those circumstances, I consider that the plaintiff's opportunity to see and consider the type of machine was relatively limited, and on this issue, I therefore prefer the evidence of Mr Francis and find that on each occasion it was the same laser machine that was used to treat the plaintiff.

125 Mr Francis has had the treatment from the machine in question performed on himself, and he was aware of what was to be expected: T298.48-T299.14.

126 The relevance of the machine type has some bearing upon the evidence of the plaintiff to the effect that during the procedure on 1 July 2009, she claims she complained of pain, and in response she claims Mr Francis had said "Sorry, I'll lower it" and he had then lowered the frequency: T34.6.

127 Mr Francis disputed that account, and said he did not lower the temperature setting or frequency in response to a complaint of pain by the plaintiff. He explained that it was not possible to do so mid-treatment, having regard to the way in which the machine settings worked for the treatment selected, and if that had occurred the treatment would have been terminated: T280.3. He said that once set, the machine always displayed the constant energy settings: T286.36. He said, and I accept, the plaintiff would not have been able to observe him manipulating the controls on the machine from her location in the treatment position as she would have been facing in the opposite direction with goggles on her face: T285.9.

128 The plaintiff stated that during the course of the treatment she felt heat on both sides of her cheeks and then later, pain which caused her to flinch, resulting in a pause in the flow of the treatment. She stated that she felt she was burning as if she had been sunburnt, and she said she also felt she could smell burning flesh.

129 Mr Francis gave slightly different evidence concerning those events. He said the plaintiff's perception of have having smelt burning flesh was in fact simply the smell of burning facial hair, which he said was a normal occurrence: T303.47. That evidence was un-contradicted. It seems to me to be plausible, and I accept it as being a more reliable account than the one recounted by the plaintiff, as at the time, she was not in a position to view her face as it was being treated with the laser. I accept Mr Francis' evidence that burning skin would have contra-indicated continuing with the treatment: T280.35. I do not accept that he continued to apply the laser beyond the treatment parameters that had been agreed upon before the treatment session began.

130 The treatment that was undertaken was planned to proceed for about 40 minutes. During the course of that treatment there was an anticipated pause for changing an applicator at a particular stage of the treatment. In order "to heat the dermal junction" in the last 15-20 minutes of the treatment: T 290.40. This was a process that was expected to be the source of some pain or discomfort. I accept that the plaintiff had told Mr Francis that her skin was feeling hot, as was expected with that stage of the treatment that was being performed, and as she had been informed beforehand, could be the case.

131 Mr Francis accepted that the treatment he had administered had resulted in scarring to the plaintiff's face: T298.16. He said he had never before seen a reaction to the treatment of the kind seen in this instance. Of itself, that observation does not necessarily indicate that the treatment was administered negligently. The plaintiff claimed that her injury occurred as a result of negligence in the course of the treatment that was given to her. This is a question that requires evaluation within the required legal framework.

Issue 3 - Whether the plaintiff was treated negligently

132 In order to establish negligence on the part of the defendant company the plaintiff must satisfy the requirements of the template provided by s 5B of the CL Act, and she must also show that her claimed injury, and the resultant disabilities, were relevantly caused as a result of the negligence alleged: s 5D of the CL Act.

133 On the facts of this case, there can be no issue that the application of laser energy to facial skin should be seen as a foreseeable source of potential harm: s 5B(1)(a) of the CL Act. Similarly, it would seem to be beyond argument that the risk of facial burning occurring due to the application of laser energy, could involve a significant risk of burns occurring if reasonable precautions were not taken: s 5B(1)(b) and (c) of the CL Act. In that context, a consideration of the precautions required, that are consistent with the provision of reasonable care, becomes relevant.

134 The evidence is that the treatments in question involves the use of a laser to apply heat to the skin to cause the structures of the skin to heat and somehow alter their composition for perceived cosmetic benefit. That is not a natural process, such as for example, turning on a hot water tap before placing a hand in the flow of the hot water. Instead, it is a process that involves variables, such as temperature settings, the use of training and the exercise of some skill, care and judgment against the background of that training, and the susceptibility of the targeted tissues to become adversely affected by the treatment.

135 In order to be able to sustain an argument on the facts of this case that there has been a breach of the duty of care owed to the plaintiff so as to sustain a finding of negligence, ordinarily, some evidence would be required, as to what should be regarded as the required standard of care for the administration of such laser treatment to the facial skin in the given circumstances. It is axiomatic that the identification of the required standard of care through evidence, is integral to the determination of the question of whether or not there has been a breach of the required standard of care.

136 The facts of this case, and the mechanism of injury, are very different to the other recognisable categories of cases such as motor vehicle accidents, workplace injuries or occupiers' liability cases for example, where the duty of care and its content can be readily inferred, and the breach thereof can be readily delineated from an examination of the evidence without further analysis: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13] per Gleeson CJ.

137 In my assessment, absent any evidence which would permit one to reach a reasoned conclusion that there had been a relevant departure from the expected standard of care in the circumstances, it does not necessarily follow, as was argued on behalf of the plaintiff, that her facial injuries occurred as a result of a breach of duty of care, or negligence, on the part of any party, in the sense of legal causation.

138 If such a nexus could be established, there would be no difficulty finding that the plaintiff's injuries were caused by the treatment: s 5D of the CL Act. That would of course be subject to any findings concerning voluntary assumption of risk.

139 An impediment to finding or inferring negligence on the part of the operator of the laser in this instance is that the evidence discloses that the use of such a device on facial skin carries with it the known risk of redness, burning, blistering and scarring of the skin. In light of that fact, it must be demonstrated that those consequences, which materialised for the plaintiff in this case, occurred as a result of a want of due skill and care on the part of the operator, and therefore the Centre, rather than the materialisation of a known risk, the materialisation of which, could also be consistent with the absence of a breach of duty of care, or negligence.

140 In cases such as this, the demonstration of such a departure is an evidentiary matter upon which the plaintiff carries the burden of proof. It is the avoidability of the adverse result, had reasonable care been taken, that gives rise to a damages award, not the untoward result itself. That burden can be discharged in a variety of ways.

141 One such method of proof is to apply a common sense analysis of the facts and circumstances provided the circumstances are amenable to the task, such as was the case in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. It is plain that such a method of analysis, unaided by explanations provided through expert evidence, is not appropriate in this instance. This is because the un-contradicted evidence of Mr Francis, which was not glaringly or inherently improbable, was that the use of the laser machine in question was a skill that resulted from training, and the use of the device involved a process that intentionally attacked and damaged the undersurface tissue structures of the skin in order to promote a healing response that was said to provide other benefits, namely a tightening of the skin of the face, hence the name 60 minute or non-surgical facelift.

142 Another method of proof arises in commonplace cases where negligence can be readily inferred from the facts presented, such as the manner in which a motor vehicle was driven, or the way in which a readily understood system of work operated, or the way in which premises were managed by an occupier, to name a few, as was contemplated in the passage I have referred to from Modbury Triangle at paragraph [136] above. In my view, the present case does not fit into that category of cases because absent further evidence to that which was adduced here, it is impermissible for a court to speculate on how the laser machine works, or should be set, or as to the manner in which it should be used, and as to what constitutes safe or non-negligent use in given circumstances.

143 A further method of proof is to rely upon the maxim or doctrine of res ipsa loquitur (the act of itself bespeaks negligence) as the plaintiff does in the present case, to seek to establish that a tortfeasor was negligent. In Roe v Minister for Health [1954] EWCA 7; (1954) 2 QB 66, at page 87, Morris LJ stated the limitations on the resort to that maxim to prove negligence. He did so in the following terms:

"[This] convenient and succinct formula possesses no magic qualities: or has it any added virtue, other than that of brevity, merely because it is expressed in latin."

144 In the present case, the plaintiff's reliance on res ipsa loquitur included a submission that the facts of this case called for the drawing of a "powerful inference" that the damage suffered by the plaintiff was due to something other than an individual reaction of the plaintiff's skin to the treatment she received on 1 July 2009. It was argued, on behalf of the plaintiff, that the absence of any such reaction on the skin of the plaintiff's face in the past necessarily serves to refute what I shall refer to as the individual reaction theory of causation relied upon by the defendant in answer to the plaintiff's claim.

145 In my view, the plaintiff's argument in that regard is unsound. This is because the argument assumes, without evidence, that the sequential application of laser treatment sessions over the period of time between 2007 and 2008, and any other form of treatment the plaintiff may have had to her facial skin before 1 July 2009, had no damaging effects on the plaintiff's underlying skin. In my view, that assumption in untenable in this case in light of the explanation provided by Mr Francis, that the laser treatment sessions which the plaintiff had over that period involved targeting laser generated heat, and a degree of pain, to what was described as the dermal junction of the facial skin, and where this was said to create damage, followed by healing, and tightening to those underlying structures.

146 I do not consider that those historical events could be reasonably interpreted as having left no sub-dermal scarring of some kind. Given that the plaintiff had at least four other laser procedures before the subject treatment session on 1 July 2009, and that she also had some other laser facial procedures that were described as fraxellation treatment, I cannot, reasonably, accept the assumed basis of the plaintiff's res ipsa loquitur argument.

147 On behalf of the plaintiff it was argued that the onus is on the defendant to disentangle or to demonstrate that the damage in question was caused by some argued underlying condition, in this analysis, the possible cumulative effects of the earlier treatments: Watts v Rake [1960] HCA 58; (1960) 180 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

148 In my view, it is not necessary to undertake that analysis in this case because of the finding that the plaintiff had consented to the potential adverse risks from the treatment, which eventually materialised. In my view, that consent renders the Watts v Rake causation analysis superfluous in this case.

149 The result of the foregoing analysis reveals the position that in order to succeed in her claim against the argued tortfeasor, the plaintiff must prove a relevant breach of the duty of care owed, and therefore establish that causally relevant negligence has occurred. That position requires that she articulate the argued scope or content of the duty of care, and to then demonstrate particular breaches of that duty, in satisfaction of the requirements of s 5B and s 5D of the CL Act.

150 In my view, for the reasons that follow, none of those essential requirements have been satisfactorily established.

151 On behalf of the plaintiff it was argued that the scope of the duty of care owed to her was similar to that owed by a doctor to a patient. In my view, that formulation is an overstatement of the duty owed as the centre was not a place where medical treatment was provided. However, the plaintiff was clearly owed a duty that reasonable care would be taken in the provision of information as to risks associated with the cosmetic treatment she was contemplating, as well as in the performance of the treatment she agreed to have.

152 I find that the plaintiff was given appropriate information as to the risks of adverse outcomes from the treatment. I am satisfied that she was given this information at all stages of her treatment at the centre. For the reasons I have already identified, I have preferred the evidence of Mr Francis to that of the plaintiff concerning the provision of information as to possible risks from the treatment. I am also satisfied that the plaintiff was determined to pursue the treatment notwithstanding that years earlier, she had declined medical laser treatment. In respect of this treatment, she attended the centre with concerns over her nasolabial folds, jowls ands sagging skin. I find that from 2007, she was determined to have the treatments offered at the centre to address these cosmetic issues. I find that she has not made her case of claimed negligence concerning the provision of information.

153 On the issue of whether the cosmetic treatment provided to the plaintiff had been performed negligently in any respect, I consider that the absence of expert evidence on that issue is a barrier to the success of the plaintiff's claim.

154 Insofar as Dr Rea suggested that it would have been prudent to carry out a test on an inconspicuous area of skin before applying the treatment to the plaintiff's face, I find that evidence to be an insufficient basis upon which to find there has been a breach of a duty of care. This is because it has not been explained how the application of the laser treatment to the skin behind the ear would be indicative of whether an adverse facial skin reaction was likely to have been predictable. This is not a matter upon which a court is entitled to speculate. If there had been evidence making such a connection, it might have been a different matter. Even given the scenario of a behind the ear test, it still does not overcome the problem that the plaintiff had four such treatments to her face in the previous 17 months without evidencing such a reaction. It is therefore difficult to see how in those circumstances, without expert explanation, a test treatment behind an ear would have provided an indication of a likely adverse reaction on the face on the fifth such treatment.

155 Furthermore, the terms of Dr Rea's suggestion do not amount to a requirement. The way I read his comment regarding a test, it was a hindsight suggestion.

156 This then leaves the question of whether the treatment to the face on 1 July 2009 was administered negligently. Without the assistance provided by technical expert evidence, I am unable to draw such a conclusion on the balance of probabilities.

157 Although the submission on behalf of the plaintiff suggests that I draw such a conclusion, I consider that there is a barrier to the acceptance of that submission. This is because, on a common sense analysis, there is an absence of an evidentiary explanation of the cumulative significance, if any, of the four earlier laser treatments to the plaintiff's face, and possibly others, on a full and correct history. The matter left in doubt and unexplained here is whether or not the plaintiff's facial tissues cumulatively treated by laser, were as a result, predisposed to developing the reaction seen in the plaintiff following the treatment on 1 July 2009. That is not a matter upon which inferences can be properly drawn without expert evidence. It is not an analysis I can ignore.

158 In arriving at the foregoing conclusion, I have not overlooked the res ipsa loquitur submission made on behalf of the plaintiff made in reliance on the decision in Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; (2000) CLR 121. That decision makes clear that firstly, res ipsa loquitur ceases to operate once the cause of the harm was identified, and secondly, once the cause of the harm has been identified, this did not preclude a process of inferential reasoning to prove negligence. Those principles are well recognised.

159 The difficulty in the path of success of the plaintiff's case in this instance is the appropriateness of drawing the suggested inferences.

160 There is no room for doubt that the plaintiff's face was burnt by the treatment she had agreed to have. She was aware of the risk of such an outcome. I do not accept her evidence to the contrary. In those circumstances, the plaintiff must still show that the adverse outcome she has experienced was due to a departure from the required standard of care.

161 Although it can be reasonably inferred that the burning of the plaintiff's face was as a result of the application of the laser, the plaintiff must still show that the temperature setting was inappropriate. That is not a proper matter for inference where the evidence of Mr Francis was that the temperature setting was the same as with the previous treatments undertaken by the plaintiff. In my view, in this case, that evidence cannot be rejected by a process of inference by reference to the burns, without a reasoned basis in the evidence. Something more is required. This is usually provided by expert evidence. On the state of the evidence, I see no proper basis for the inference sought on behalf of the plaintiff.

162 The evidence here is that the treatment in question could potentially cause burning and facial scarring. When such adverse results accrue, these of themselves do not necessarily bespeak negligence where a mechanical or scientific process is being used. In light of the evidence that such a result is possible, this is not a case where the plaintiff is able to show that her injury would not have occurred without negligence so as to infer that negligence was the cause of her injury: Schellenberg v Tunnel Holdings Pty Limited, at [25], page 134.

163 Accordingly, I find that the plaintiff has not made out a case in negligence.

Issue 4 - Assessment of damages

164 In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span

165 In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual median statistical life span would not apply to the plaintiff's circumstances. At age 46 years, the plaintiff has a probable median statistical life span of 42 remaining years. Uninjured, she would have had an otherwise normal working life span.

Non-economic loss

166 On behalf of the plaintiff, it was submitted that non-economic loss damages pursuant to s 16 of the CL Act should be assessed at 28 per cent of a most extreme case in the sum of $73,000. The defendant made no submissions on this question. In my assessment the amount claimed on behalf of the plaintiff for non-economic loss is reasonable. If the plaintiff had succeeded on the pivotal liability issues, the plaintiff would have been entitled to an award of non-economic loss in the amount of $73,000.

Future economic loss

167 On behalf of the plaintiff, a claim was made for future economic loss in the amount of $12,036. That sum consisted of a claim for 12 weeks of likely loss of earnings at $1180 per week net, less 15 per cent for vicissitudes. This claim was advanced on the basis that the plaintiff would undertake the revisionary surgery described in relation to the claim for future treatment expenses. No evidence was tendered on behalf of the plaintiff to show the level of the plaintiff's earnings, either gross or net. This is not a matter upon which a court should speculate where the plaintiff is in paid employment and that evidence should have been available: Morvatju v Moradkhani [2013] NSWCA 157, at [110]. On the evidence, the plaintiff has not established a quantifiable claim for future economic loss.

Future loss of superannuation

168 Consistent with my findings concerning the plaintiff's claim for future economic loss, I make no assessment of any damages for loss of superannuation. On behalf of the plaintiff it had been submitted that there should be an allowance of $1733 for this head of damaged, based upon the revised conventional formula of 12 per cent of the net amount claimed for future loss of earning capacity, namely $12,036. The correct calculation amounts to $1444 rather than $1733. However, I find that the plaintiff has not made out a quantified claim because of a want of evidence as to her level of earnings, which necessarily precludes an assessment of this component of her claimed loss.

Future paid attendant care

169 On behalf of the plaintiff, it was submitted that there should be an allowance of an amount of $1440 for future attendant care comprising 4 hours per week at $40 per hour over 12 weeks. The correct re-calculation of that submission amounts to $1920. I make no allowance for such damages as there was no supporting evidence or agreement to the effect that the commercial rate for such services should be assessed at $40 per hour. Whilst that sum is often seen in personal injury cases involving this head of damage, it is in the context of tendered evidence or an acknowledged concession, however, that is not the case here.

170 If the plaintiff had succeeded in the proceedings, and if there had been evidence in support, a claim based on evidence along these lines would have been appropriate to enable the plaintiff to obtain paid domestic assistance whilst she recuperated from surgical treatment of the kind identified by Dr Hayward. During such recuperation it would be understandable that in her circumstances, the plaintiff would need assistance with shopping, housework and tasks that would have involved her being out of the home.

Future out-of-pocket expenses

171 On behalf of the plaintiff, a claim was made for $12,000 for the cost of future remedial treatment of the kind recommended by Dr Hayward, in his report dated 15 February 2012. If the plaintiff had succeeded in the proceedings, she would have been entitled to an award of this amount, undiscounted, consistent with the need for her to undertake timely remedial treatment for mitigation of her situation.

Past out-of-pocket expenses

172 The parties have agreed that the plaintiff has reasonably incurred out-of-pocket expenses in the amount of $1710. That amount would have been awarded if the plaintiff had succeeded on the liability issues.

Summary of damages assessment

173 My assessment of the Plaintiff's damages is summarised as follows:

(a) Non economic loss	$73,000
(b) Future economic loss	Not proven
(c) Future loss of superannuation	Not proven
(d) Future domestic assistance	Not proven
(e) Future out-of-pocket expenses	$12,000
(f) Past out-of-pocket expenses	$1,710
Total	$86,710

Disposition

174 As the plaintiff has failed to make out her case, the defendant should have a verdict entered in its favour.

Costs

175 Since the plaintiff has been unsuccessful in the proceedings, it follows that she must pay the defendant's costs of the proceedings on the ordinary basis, unless otherwise ordered.

Orders

176 I make the following orders:

(1) Verdict and judgment for the defendant;

(2) The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;

(3) The exhibits may be returned;

(4) Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 07 June 2013