Corso v Arias Holdings Pty Ltd - [2016] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CORSO v ARIAS HOLDINGS PTY LTD & ORS
[2016] SADC 62
Judgment of His Honour Judge Slattery
17 June 2016
TORTS - NEGLIGENCE
DAMAGES - GENERAL PRINCIPLES
Assessment of damages.
The plaintiff underwent treatment for the removal of tattoos at a North Adelaide salon which recommended the use of the Rejuvi Tattoo Removal Paste manufactured in the USA by the second defendant. No warning was given of known deleterious consequences of the use of such paste and the promotional material supplied by the Australian importer, the first defendant and sourced from the manufacturer, the second defendant and used by the third defendants represented falsely that following the use of the paste, the plaintiff could expect to achieve a result that her skin would be in pre-tattoo condition.
The plaintiff underwent the treatment relying upon the promotional material that she received and read. The treatment caused extreme burning, scarring and other disfigurement of the plaintiff which in turn caused severe physical, psychological and psychiatric injuries to her. The plaintiff has suffered from ongoing pain, suffering, loss of earning capacity, physical disabilities, psychiatric disabilities and loss generally. The plaintiff sues for damages. None of the defendants filed a Notice of Address for Service or a Defence. The action has proceeded as an assessment of damages.
Held:
1. The plaintiff is entitled to damages as assessed by the Court.
2. Observations about the requirement for the Court to proceed to assess damages based upon the pleaded case of the plaintiff as described in the documents that have been served upon the defendants.
Service and Execution of Process Act (Cth) Generally; District Court (Civil) Rules r 99, r 223, r 229; “Hypertrophic Scar after chemical tattoo removal” Drs Sainir et al, American Society for Dermatologic Surgery; Dermatologic Surgery: November 2008 pp 1599-1601(©2008 by the American Society for Dermatologic Surgery Inc published by Wiley Products).; Tracey Janos v Rejuvi Laboratories Inc Circuit Court of Cooke County, Illinois County Department Law Division in Action No. CCG-67 (2-81); Trade Practices Act s 74AB, s 75AD, s 82; Fair Trading Act s 56, s 58(a), s 58(e), s 63, s 64, s 84; The Hague Convention Rules Generally; Civil Liability Act 1936 s 52, s 58; Mayne and McGregor on Damages 12th Edition 1961 at page 96; The Laws of Australia (LexisNexis publication) paragraph [32.155] ; Manufacturer’s Warranties Act 1974 s 5, referred to.
Young v Thomas [1892] 2 Ch 134; Smith v Buchan 36 WR 631; Faithfull v Woodley (1889) 43 Ch D 287; Phonographic Performance Limited v Maitra [1988] 2 All ER 638; Watson Specialised Tooling Pty Ltd v Stevens (1991) 1 Qd R 85, discussed.
Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85; Boley v Owen [1944] Tas SR 45; Australian Competition and Consumer Commission (ACCC) v Dataline.Net.Au Pty Ltd [2006] FCA 1427; Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433; Lunar Park Sydney Pty Ltd v Bose [2006] FCA 94;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SADC 62
Decision Date: 17 June 2016

CaseChat Overview and Summary

Corso v Arias Holdings Pty Ltd involved a plaintiff who sought damages for injuries sustained from the use of a tattoo removal product. The plaintiff had undergone treatment at a salon in North Adelaide, which recommended a tattoo removal paste manufactured by an American company and imported into Australia by another company. The plaintiff alleged that she was not warned of the known risks associated with the product and that the promotional materials provided by the Australian importer falsely represented the expected results. The plaintiff claimed that she suffered severe physical, psychological, and psychiatric injuries due to the treatment, including ongoing pain, scarring, loss of earning capacity, and various disabilities.

The legal issues before the court centred on the assessment of damages for the injuries sustained by the plaintiff. The court had to determine the extent of the plaintiff's physical and psychological injuries, the extent of the psychiatric harm, and the loss of earning capacity. Additionally, the court had to consider the impact of the injuries on the plaintiff's quality of life and any future care or support needs. The defendants did not contest the claims, and therefore, the court proceeded to assess the damages due to the plaintiff.

The court examined the evidence and expert reports presented to determine the appropriate quantum of damages. It assessed the extent of the physical injuries, including the severity and permanence of the scarring and disfigurement. The court also considered the psychological and psychiatric impacts, including the severity of the distress and any ongoing treatment needs. The court calculated the loss of earning capacity based on the plaintiff's pre-injury employment history and the extent to which the injuries impeded her ability to work. The court awarded damages for the pain and suffering, psychiatric injuries, and loss of earning capacity, along with an allowance for future care and support.

The court ordered the defendants to compensate the plaintiff for the damages assessed. The exact amount was not specified in the text, but the court detailed the considerations and calculations that led to the determination of the damages. The defendants were liable for the full amount of damages awarded to the plaintiff.

Orders