Jiang v BCDS International P/L t/as Serendipity Miss Beauty ACN 603 133 991

[2019] NSWDC 578

District Court

New South Wales

Medium Neutral Citation:

Jiang v BCDS International P/L t/as Serendipity Miss Beauty ACN 603 133 991 [2019] NSWDC 578

Hearing dates:

29 August 2019 & 4 October 2019

Date of orders:

18 October 2019

Decision date:

18 October 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $24,557;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis;

 3. The exhibits may be returned.

Catchwords:

TORTS – negligence – non-invasive skin treatment in a beauty salon resulting in facial skin depigmentation and dimpling – whether due to inherent risk or negligence; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5I, s 16, s 18
Civil Procedure Act 2005 (NSW), s 14
Evidence Act 1995 (NSW), s 60
Uniform Civil Procedure Rules 2005, Sch 7 cl 5(c), r 42.35

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Angel v Hawkesbury Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
Condos v Clycut Pty Ltd [2009] NSWCA 200
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
F v R (1983) SASR 189
Goode v Angland [2017] NSWCA 311
Jackson v Verco, unreported, 17 January 1992, Full Court of the Supreme Court of South Australia
Lormine Pty Ltd & Anor v Xuereb [2016] NSWCA 200
Machado v Advanced Dermatology Group Pty Ltd [2013] NSWDC 85
Paul v Cooke [2013] NSWCA 311
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29;
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
State of NSW v Fuller-Lyons [2014] NSWCA 424
Strong v Woolworths Ltd (2012) 246 CLR 182, [2012] HCA 5
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Warren v Gittoes [2009] NSWCA 24
Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Texts Cited:

D Miller et al, “Overview of Therapeutic Ultrasound Applications and Safety Considerations” (2012) J Ultrasound Med. 2012 April; 31(4): 623-634

Category:

Principal judgment

Parties:

Wenting Jiang (Plaintiff)
BCDS International Pty Limited t/as Serendipity Miss Beauty (Defendant)

Representation:

Counsel:
Mr C Hickey (Plaintiff)
Ms T Berberian (Defendant)

  Solicitors:
Beilby Poulden Costello (Plaintiff)
Holman Webb (Defendant)

File Number(s):

2018/340045

Publication restriction:

None

Judgment

Table of Contents

Factual background and nature of case	[1] – [3]
Evidence overview	[4]
Issues	[5]
Credibility and reliability of testimony	[6]
Facts	[7] – [41]
Plaintiff’s background circumstances	[8]
Circumstances leading to treatment	[9] – [15]
The treatment	[16] – [20]
Immediate post-treatment after-effects	[21]
Ensuing events	[22] – [28]
Subsequent contact with defendant	[29] – [30]
Medical assessments	[31]
Current complaints	[32] – [41]
Issue 1 – Relevant risk of harm	[42] – [50]
Issue 2 – Nature, scope and content of the duty of care owed	[51] – [62]
Issue 3 – Claim of materialisation of an inherent risk	[63] – [88]
Issue 4 – Claim of negligence	[89] – [173]
Particulars of negligence	[92] – [94]
Legislation	[95] – [96]
Alleged negligent failure to inform and to warn	[97] – [123]
Alleged negligent operation of the ultrasound device	[124] – [172]
Conclusions as to negligence	[173]
Issue 5 – Causation of harm : s 5D of the CL Act	[174] – [178]
Factual causation	[175] – [176]
Scope of liability	[177]
Conclusion on causation	[178]
Issue 6 – Assessment of damages	[179] – [208]
Non-economic loss	[180] – [199]
Future out-of-pocket expenses	[200] – [203]
Past out-of-pocket expenses	[204] – [205]
Interest on past out-of-pocket expenses	[206] – [207]
Summary of damages assessment	[208]
Issue 7 – Costs jurisdiction	[209] – [210]
Disposition	[211]
Costs	[212]
Orders	[213]
Appendix	-

Factual background and nature of case

1. On 16 June 2017, after making a series of instalment payments to the defendant totalling $5,000, the plaintiff, Ms Wenting Jiang, then aged 33 years, underwent what the defendant had described as not only a safe, but a very safe, non-invasive cosmetic facial treatment procedure described as a “3D Skin Lifting by Ultrasound”. The procedure was performed by Ms Sophia Chen, a trained employee of the defendant, BCDS International Pty Limited trading as Serendipity Miss Beauty ACN 603 133 991, at beauty salon premises located at 102A Bathurst Street, Sydney, NSW.

2. The treatment commenced with the application of a numbing face cream, and then continued with heat energy being applied to the plaintiff’s face as generated by an ultrasound device. The stated intention was to improve the plaintiff’s appearance by delivering a low amount of focussed ultrasound energy to the skin of the plaintiff’s face. As a consequence of that treatment, the plaintiff developed facial redness, burning, blistering, lumpiness and depigmentation to parts of her face. This has caused her to suffer distress and embarrassment because she feels that there has been an untoward cosmetic change to the appearance of her face, for which she claims damages for alleged negligence.

3. The plaintiff claims that beforehand, she had not been appropriately informed of the nature and extent of the risks associated with that treatment. She also claims that the described treatment was performed negligently. The defendant denies any negligence, and claims that the complication incurred by the plaintiff was an inherent risk of the treatment undertaken. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).

Evidence overview

4. The plaintiff was the only witness to give oral evidence. In support of her claim she tendered two medico-legal reports from plastic and reconstructive surgeons. The first report, commissioned by her solicitor, was from Dr Michael McGlynn, and was dated 24 January 2018. Annexed to Dr McGlynn’s report was an article by D Miller et al, entitled “Overview of Therapeutic Ultrasound Applications and Safety Considerations”, (2012) J Ultrasound Med. 2012 April; 31(4): 623-634. The second report, commissioned by the solicitor for the defendant, was from Associate Professor Allan Meares, and was dated 23 May 2019. The parties tendered a number of photographs and other documents that will be referred to where it becomes relevant to do so.

Issues

5. Apart from determining matters of fact, the issues calling for decision in this case may be conveniently identified as follows:

1. The relevant risk of harm posed by the treatment;

2. The nature, scope and content of the duty of care the defendant owed to the plaintiff;

3. Whether, within the meaning of s 5I of the CL Act, and in light of the content of a consultation form the plaintiff signed on 16 June 2017, the injuries suffered by the plaintiff were a manifestation of an inherent risk of the described treatment;

4. Whether the plaintiff has proven a breach of duty of care on the part of the defendant;

5. Whether the plaintiff has satisfied the causation requirements of s 5D of the CL Act.

6. The assessment of the plaintiff’s entitlement to damages for:

1. Non-economic loss pursuant so s 16 of the CL Act;

2. Future out-of-pocket expenses;

3. Past out-of-pocket expenses;

7. In the event that the plaintiff is awarded damages, whether there should be adverse costs implications to her because the proceedings were brought in this Court, and not in the Local Court, having regard to the provisions of UCPR r 42.35.

Credibility and reliability of testimony

6. I record my view that the plaintiff was an impressive witness. When describing her complaints of disability, she gave her evidence with an air of restraint and understatement. She plainly found the subject matter of her evidence embarrassing and upsetting. In my assessment, whilst she was at times distressed, she did not embellish her evidence. In cross-examination, she fairly made concessions where it was appropriate for her to do so. I have accepted her evidence as being entirely truthful and reliable.

Facts

7. Unless otherwise qualified, my findings of fact are as stated in the paragraphs that follow.

Plaintiff’s background circumstances

8. The plaintiff is presently aged almost 36 years. She has an 11 year old dependent son. She is no longer married. She works part-time in a sales position in a retail clothing store. She also works part-time as a real-estate agent. She was in good general health at the time she undertook the treatment about which she claims damages in these proceedings.

Circumstances leading to treatment

9. In June 2017, the plaintiff attended the defendant’s beauty salon for what she described as a facial: T8.43. The facial treatment she was intending to have was in the nature of grooming, and involved a face clean, a facial massage, and the application of a hydrating cream face mask, which would normally be washed off after 10 to 15 minutes. She had previously received several such facial treatments from the defendant: T9.45 – T10.20; T28.28. Those previous facials were said to have been for hydrating and cleansing the skin. Although those facials were also described as lightening or brightening the facial skin, they did not involve any suggestion that discolouration or depigmentation of the skin might occur as a result of such treatments: T21.5 – T21.50; T22.16 – T22.27. The defendant had charged the plaintiff $100 on each occasion she had those previous facial treatments: T28.42.

10. When the plaintiff visited the defendant’s premises on 7 April 2017 (Exhibit “A”), she said that she wanted to receive a further facial treatment. The defendant’s employee, Ms Sophia Chen, then told her about an ultrasound promotion that the defendant’s business was offering to its customers. That conversation took place just four days after Ms Chen had received her certificate of training in respect of the ultrasound device.

11. In that discussion, Ms Chen represented to the plaintiff that the ultrasound treatment on offer would help her to “look better”, lift her skin and make her skin look better, look younger, firmer, and that her wrinkles around her forehead and on her cheeks near her nose, would either go away or be improved in their appearance: T10.25 – T10.32; T11.5; T22.49 – T23.25. She was told that the treatment would make the whole of her facial skin firmer: T25.6 – T25.23. Ms Chen told the plaintiff she was a trained ultrasound operator: T18.9. That conversation was in the Mandarin language: T18.24. In that conversation it appears that Ms Chen then convinced the plaintiff to have the ultrasound treatment: T27.14.

12. Beforehand, the plaintiff had never had such ultrasound treatment. She did not quite understand how the ultrasound treatment would affect her skin: T26.10. She had asked Ms Chen how the procedure would work and she was told it would produce a very good result, and that it would make her skin firmer, look better and younger, and that the procedure was very safe: T25.35 – T26.26.

13. In the conversation referred to above, there was no discussion or information provided to the plaintiff about any risks associated with the treatment, either in written or verbal form. The plaintiff had enquired of the risks of the treatment and Ms Chen had told her it was safe: T26.40 – T27.5. The plaintiff agreed to have the treatment at a cost of $5,000, which she then paid in three instalments before booking the treatment: T11.26 – T11.37.

14. There had been no discussion about the potential for facial burns to result from the treatment offered: T27.27. The plaintiff understood the treatment was different to the normal facials she had received beforehand, and that ultrasound treatment was much more expensive than those other facials, but she did not understand there to be any risks of the procedure: T27.44 – T28.4. No risks were explained to her at any stage prior to the commencement of the treatment.

15. During cross-examination the plaintiff acknowledged that since the proposed treatment was expensive, it had been important that she satisfy herself that the proposed treatment would work, and that she would not be hurt in the process: T29.1 – T29.4. I find that the plaintiff had satisfied herself on those matters by accepting Ms Chen’s specific representation that the treatment was not only safe (T27.4) but that it was very safe: T26.26. In the circumstances it was the defendant’s obligation to explain the risks of the treatment.

The treatment

16. On 16 June 2017, on the day the plaintiff made her last instalment payment for the treatment, an employee of the defendant, but not Ms Chen, took her into a room at the premises. The plaintiff changed from her street clothes and as requested, she lay down on a bed. At that time, a cream was applied to her face, which caused numbing to her face. She had never had that treatment before: T11.40 – T12.17. The defendant’s employee who applied that cream did not give her any explanation about the treatment at that time. After the cream had been applied to the plaintiff’s face, photographs were taken of the appearance of her face. The plaintiff was told this was to serve as a record of before and after results: T23.47; T25.5.

17. The cream was left on the plaintiff’s face for about 20 minutes. The defendant’s employee, not Ms Chen, then gave the plaintiff part of a form to sign. In that conversation there was no disclosure of the risks associated with the treatment that was about to commence. The plaintiff agreed that at that time she would have had no difficulty reading the content of the form in English (T18.35; T29.49), however, she did not read it before she signed it. The reason given to the plaintiff by the defendant’s employee, not Ms Chen, for needing her signature on the form was that a signature was needed for a “legal issue”: T12.33 – T13.8. The nature of that legal issue was not further explained to the plaintiff and she made no further inquiry on that subject.

18. At the time the plaintiff was presented with the form to sign, she was laying down on a bed. In response, she sat up to quickly sign the single page that was presented to her. It later transpired that this was the last page of a consultation form consisting of four pages. Parts of that form were left incomplete by the defendant: Exhibit “1”, Tab 3; T30.30 – T33.1; Appendix.

19. Thereafter, Ms Chen, who had been delayed in attending to the plaintiff, entered the room and started up the ultrasound machine. She apologised for being late. Ms Chen explained to the plaintiff that the delay was because she had gone to get a new ultrasound head.

20. Ms Chen then applied a rectangular shaped ultrasound head to the whole of the plaintiff’s face for about 30 minutes: T13.15 – T13.24. The plaintiff’s face had already been numbed by the earlier application of cream before the ultrasound treatment had started. That cream produced a tingling sensation: T33.41. In addition, during the ultrasound treatment, she felt a sensation which she described as “a little bit sting” to her whole face: T14.5 – T15.24. The plaintiff felt the strongest part of that stinging sensation to be in the region of her nasolabial folds: T14.35. She also felt the sensation of heat being applied to her face at the places where the ultrasound had been applied: T34.26. She described later having felt that there had been “a little bit of burning” from the heat applied: T33.48; T34.2 – T34.5.

Immediate post-treatment after-effects

21. After the treatment was completed the plaintiff noticed that her whole face had become very red. The plaintiff then queried that occurrence with Ms Chen, and at the same time told her that she had felt “the sting but not very strong”. She was then told by Ms Chen that it was normal for redness to occur, and that this would go away after a few days: T14.40 – T15.23. Ms Chen then suggested that the plaintiff purchase some cream to help “release the red”. She then did so, at a cost of $100: T35.28.

Ensuing events

22. At home the next day, the plaintiff noted that her facial skin was still red, and that it was “bubbling”, which she later explained to be blistering in large areas around her mouth, and which was associated with some pain: T37.10 – T37.32. She described the areas affected in that way as having been around the edges and at the corners of her mouth: T15.45 – T16.16. The plaintiff also observed that the reddened area on her face was becoming darker: T16.21. After noticing the bubbling on her face, the plaintiff rang Ms Chen to tell her of that development. In response, Ms Chen told her that this phenomenon was normal, and that she should wait a few days: T16.30 – T16.38.

23. The plaintiff described the bubbling as having become “very bad”, and that it then developed into scarring: T16.41. She also described the area as having become lumpy or bumpy, and that the problem just became deeper (T16.49), which I interpret to be a reference to the lumpiness being in the deeper tissues of her face rather than on the surface of her skin.

24. The plaintiff contacted Ms Chen again a few days later to advise her of those problems which she described as being “still very bad”. In reply, without seeing the plaintiff, Ms Chen told the plaintiff: “That’s normal, that’s okay”: T17.26. Ultimately, the blistering to the plaintiff’s face resolved within a month, but some of the reddened areas became darkened in appearance: T41.20 – T41.26.

25. The plaintiff stated, and I accept, that she has been left with some asymmetry of her face in that the problem described in the preceding paragraph principally affected the left corner of her mouth, which becomes evident when she smiles or speaks. She said that at such times her face does not appear balanced. I interpret that evidence to be a reference to an apparent tethering or dimpled appearance of about 1cm at the left corner of her mouth: T17.1 – T17.12.

26. The plaintiff took some photographs of her face on the day after the treatment, and she also took further photographs a week later and again a month later: T37.41; T38.15 – T38.25; Exhibit “2”.

27. The plaintiff consulted Dr Lee, a general practitioner, about the damage to her facial skin: T35.35 – T35.40; T36.1 – T36.9. The date of that consultation was not explored in evidence other than to record that no treatment was provided to her in that regard: T36.24. No report from that doctor was tendered in evidence. Nothing turns on the absence of any evidence from Dr Lee.

28. Apart from the cream the plaintiff purchased from the defendant, the only other treatment she has applied to her face was to initially wear a mask for a few weeks, and thereafter she has applied foundation make-up to cover the darkened areas on her face (T41.26), but not to the areas of scarring around her mouth: T36.25 – T36.40. She has continued to buy foundation make-up that is specially produced or formulated for Asian skin. She applies it to cover up the unevenness in the appearance of her facial skin: T41.29 – T42.17. That product costs her $295 every 3 months: T43.4; T20.30. She changes brands from time to time: T43.42. She has not kept receipts in relation to those purchases: T43.16.

Subsequent contact with defendant

29. Although the plaintiff had no further dealings with Ms Chen, a few months after the treatment, she received an unsolicited telephone call from the owner of the beauty salon, Ms Gio Ting Ting. At that time the following exchange occurred:

“Q. She phoned you.

A. Yes.

Q. What did she say?

A. She say she just know about the sting. The sting, my face get burn and that she told me Sophia was left the company and didn’t tell her what happen before, so she has no idea what happened to me before.

Q. Did she say how she knew about what happened?

A. She receive the invoice from the insurance, yeah. The insurance.

Q. Did you ever speak to that lady again?

A. No.”

[T19.6 – T19.18]

30. It appears Ms Chen no longer works at the defendant’s business: T19.11.

Medical assessments

31. The plaintiff was assessed by Dr McGlynn on 24 January 2018 and by Associate Professor Meares on 21 May 2019. She said, and I accept, that she gave those examiners a truthful account of her post-treatment problems: T19.27. Consequently, in identifying the plaintiff’s ongoing disabilities, I have drawn upon those histories: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).

Current complaints

32. The plaintiff has a deep “bumping” or bumpy abnormality of her face and she feels that it is not in aesthetic balance, especially when she talks or when she smiles: T19.29 – T19.44.

33. She finds that she has a need to apply foundation make-up on her face on a daily basis to disguise the cosmetic defects she has been left with following the treatment in question. That foundation make-up costs her $295 every 3 months: T20.30. This is the equivalent of about $25 per week. She uses that make-up to cosmetically cover-up her changed facial appearance: T20.46.

34. In addition to the complaint of lumpiness of the left side of the lower lip in the left corner of her mouth, the plaintiff is aware of an area of darkened skin on each side of the corners of her mouth. When Dr McGlynn examined the plaintiff he took a history of an alteration in the pigmentation of the plaintiff’s entire face including her forehead, but this gradually improved. He noted she was still embarrassed by the darkening of the skin colour of her lower lip and chin area. He also noted her concern over the post-treatment deepening of the creases at the corner of her mouth when she smiles.

35. Dr McGlynn assessed the plaintiff had been left with healed mild hyperpigmentation involving her entire lower lip and chin and adjacent face extending out to the nasolabial fold. He considered that surgical treatment would not be effective to correct the described hyperpigmentation. He considered the hyperpigmentation was entirely due to the treatment in question.

36. Associate Professor Meares described those darkened areas as “very slight” and he stated that he could find very little abnormality, and he was unable to say whether the “greyish colour of each corner” of the plaintiff’s mouth was natural or caused by the treatment in question: Exhibit “1”, Tab 1, p 3.

37. I do not accept as apt, Associate Professor Meares’ description of the plaintiff’s problem as being very slight. Whilst the plaintiff’s cosmetic defect may have appeared to Associate Professor Meares to have been slight compared to some of the cosmetic defects he might see in his practice, the issue here is that the plaintiff is very much aware of a change in her skin pigmentation, and this change causes her upset. I consider that her subjective perception of a change in her skin was a reasonable description which is a reliable observation that should be accepted. The opinion of Associate Professor Meares is in my view relative, and not a determinative consideration.

38. A further reason for not accepting the aptness of Associate Professor Meares’ characterisation of the cosmetic discolouration and change to the plaintiff’s facial skin as being very slight, is that when he was considering the nature and the cause of the shadowing or greyish appearances at the corners of her mouth, he based his conclusion on his viewing of some pre-treatment photographs.

39. In this case, for reasons that will be stated in connection with the evaluation of damages, I consider that approach by Associate professor Meares which involved photographic comparisons, to be an unreliable method of detecting or measuring changes in skin colouration: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].

40. Although Associate Professor Meares stated that he could not detect the left sided lumpiness near the plaintiff’s mouth of which she complains, that does not mean the plaintiff’s perception of that phenomenon should be discounted, particularly as Associate Professor Meares did not state or identify the method by which he examined the plaintiff to assess that complaint. For example, he did not say whether his examination of the plaintiff’s face was purely visual, or whether it also involved manual palpation of tissues in the area where the plaintiff experienced lumpiness. Furthermore, he did not state whether, before he examined her, the plaintiff either had or had not removed the foundation cover-up make-up that she uses to disguise the defects.

41. I find that the plaintiff is significantly affected by the changed cosmetic appearance of her face and I accept that she finds that change disturbing and upsetting to her.

Issue 1 – Relevant risk of harm

42. The plaintiff identified the relevant risk of harm of the described treatment as being the risk of incurring permanent cosmetic blemishes and scarring to her face, altering the appearance of her face, and associated psychological trauma. The defendant accepted that formulation: T46.8.

43. An overview of the article by D Miller et al, as referred to by Dr McGlynn, provided some evidence of the mechanism by which such harm could be caused. That article generally identified and explained the following safety considerations of relevance regarding the bio-effects of ultrasound:

1. Ultrasound is a process by which energy is deposited in tissue to induce various biological effects;

2. Ultrasound machines are capable of causing substantial bio-effects, and therefore, deliberate caution must be exercised to minimise injury, and patients should be fully informed of possible risks as well as expected benefits;

3. The potent therapeutic use of ultrasound carries the risk of unintentional adverse bio-effects which can lead to patient injury;

4. The use of initial high intensity focussed ultrasound (“HIFU”) appears to involve thermal ablation of tissue, including skin and sub-cutaneous tissues;

5. HIFU applications involve the delivery of substantial ultrasonic energy to localised areas, and undesired tissue change is always a consideration;

6. HIFU bio-effects and complications can occur with unique risk-benefit considerations for each application;

7. Detailed safety considerations should accompany the introduction of HIFU applications into clinical practice in order to assure benefit, whilst minimising risk to the patient.

44. Those matters will be the subject of consideration in connection with the plaintiff’s claim concerning whether there was operator negligence at the time the defendant’s employee applied the ultrasound treatment to the plaintiff’s face. In the meantime, it is relevant to cite some particular aspects of the Miller article as it pertains to the risks associated with the application of ultrasound.

45. The Miller article, as at 2012, generally identifies low power ultrasound as having well accepted and beneficial uses that have been widely applied since the 1950’s. The article also identifies the possible undesirable bio-effects occurring from ultrasound, including burns relating to thermal therapies. The article describes a tractable or manageable safety problem in clinical use on account of definable benefits and risks. The article also identifies the potential for commercial conflict of interest to occur in insuring an optimal benefit to risk ratio for the patient.

46. The Miller article identifies the need for standardisation, and careful consideration of risk minimisation for optimal patient outcome, noting that the application of ultrasound deposits energy into tissues to potentially induce biological effects, not only through the heating of the affected or targeted tissues, but also through non-thermal mechanisms including ultrasonic cavitation, gas body activation, mechanical stress, or other non-thermal processes.

47. The Miller article also identifies the fact that decreasing the frequency of the ultrasound increases the likelihood of cavitation and the process of gas body activation, and increasing the power or the intensity of the ultrasound tends to increase the likelihood and magnitude of all of the identified bio-effect mechanisms. The article also identifies a consequence of therapeutic application of ultrasonic heating having differing effects on tissues of differing densities. It also identifies that ultrasound heating can lead to irreversible tissue changes where that phenomenon follows an inverse time-temperature relationship, where, depending upon the temperature gradients used, the effects from the ultrasound exposure can include mild heating, coagulative necrosis, tissue vaporisation, or all three of those effects.

48. With more specific reference to HIFU application of ultrasound to the skin for non-invasive aesthetic purposes, the Miller article states that this generally involves the delivery of substantial ultrasonic energy to localised areas. The article also states that in such circumstances, undesired injury is always a relevant consideration, where typically, unwanted burns and pain can occur, and where bio-effects or complications can occur with unique risk-benefit considerations for each application. The article suggests that thought must be given to assuring that there is a benefit to the patient whilst minimising the risk of harm. In that regard, the article sets out general guidance for therapeutic ultrasound safety: Miller et al, at pp 9 – 10.

49. Standard factors amongst those guideline statements included the following:

“…

Patient safety

Ultrasound therapy machines are, of course, capable of causing substantial bioeffects; therefore, deliberate caution must be exercised to minimize injury for each patient. Patients should be fully informed of possible risks, as well as expected benefits.

Quality assurance

Ultrasound therapy machines are typically complex and subject to deterioration or failure. Each machine should be monitored and tested on a regular basis for safe operation and verification of appropriate ultrasound fields to assure efficacious treatment.

…”

[Exhibit “B”, Miller et al, p 10]

50. The nature, scope and content of the duty of care owed by the defendant must be considered in light of the evidence cited above as to the risks of harm.

Issue 2 – Nature, scope and content of the duty of care owed

51. On the pleadings, the defendant denied the pleaded allegation that the relationship between the plaintiff and the defendant should be characterised as being that of treatment provider and patient: Statement of claim par 8 and statement of defence, par 3.

52. I do not accept the defendant’s pleaded denial of a patient and treatment provider relationship as it does not sit well with the quasi-medical content and terminology that appears within the defendant’s own consultation form, which variously refers to treatment goals, a variety of potential procedures ranging from facial skin tightening, filler treatment, the use of neurotoxins, ablative laser and non-laser resurfacing treatment, dermabrasion or deep facial peels, lipoplasty in the face and neck regions, facelift, blepharoplasty, and brow lift.

53. The format of the defendant’s consultation form also sought to record patient information about medications, other health or medical conditions or diseases present, as one would ordinarily expect when taking a medical history from a patient. The form also has spaces reserved for notes to be made about the assessment of clinical response factors, as well as factors relating to the assessment of face and neck skin for laxity, volume and quality.

54. The defendant’s consultation form also refers to possible resultant discomfort during treatment, where the heat energy from ultrasound treatment is delivered to stimulate new tissue formation. A warning about the procedure contains the contextual reference : “As with any medical procedure, there are possible risks involved with the treatment”, including a remote risk of burn that may or may not lead to scarring, or temporary nerve inflammation, temporary muscle weakness due to motor nerve inflammation, or temporary numbness to a sensory nerve. All of these matters have medical significance. The form goes on to state that “some patients will benefit from more than one treatment”. The HIFU (high intensity frequency ultrasound) treatment is described as “non-invasive”.

55. In my opinion, the defendant’s consultation form is couched in, and appears to use, the language that pre-supposes the existence of a therapeutic relationship between a practitioner and a patient. It contains medical and anatomical references and references to biological processes, to give the impression of a relationship between a patient and a treatment provider. I reject the defendant’s denial of the existence of a relationship of that character.

56. Those findings are relevant to the consideration of the duty of care owed to the plaintiff. The precursor for any consideration of whether a breach of duty of care has occurred must be the determination of the content of the duty of care owed in the circumstances of the relationship.

57. In this case, the relationship is one of beauty therapist and client. In my view, this is a therapeutic relationship in which the trained and certified therapist, with ostensible knowledge of the ultrasound treatment process, persuaded the plaintiff to embark upon treatment that was entirely within the control of the therapist, and in respect of which there were known associated risks.

58. The evidence shows that Ms Chen had been trained in the use of the ultrasound equipment used in the treatment in question: Exhibit “1”, Tab 4. Her certificate of accreditation was issued in respect of a HIFU Training Course by Aesthetic Advanced Technology Pty Ltd, located at 3 /36 O’Riordan Street, Alexandria, NSW. Neither the nature nor the extent of that training was identified.

59. The certificate referred to “E-Clip + HIFU” training that occurred on 3 April 2017, some 10 weeks before the plaintiff received the treatment. The accreditation certificate stated that Ms Chen had successfully demonstrated an understanding of the requirements of the “E-Clip + HIFU Face & Body Tightening Device”. No other details of that training were available. There is no evidence as to how her understanding had been assessed.

60. I infer from the content of the certificate of accreditation and from the fact of Ms Chen’s training that she had knowledge of the risk of injury to the patient when the HIFU ultrasound treatment was to be applied to the face in respect of the procedure the defendant offered to the plaintiff.

61. The relevant circumstances were that the defendant, through its employee Ms Chen, held itself out as possessing the relevant knowledge and expertise on matters of safe use of the machinery involved in the treatment, and made representations to the plaintiff that the proposed treatment was not only safe, but very safe. It was not suggested those statements were false. I infer that the basis for those statements was the training that Ms Chen had obtained.

62. In the described circumstances of the plaintiff attending for facial treatment, the duty of care owed by the defendant’s therapist, Ms Chen, was to exercise reasonable care, skill and judgment in applying the treatment the plaintiff agreed to undertake, including the duty to provide information about the nature of known sources of risk of harm to the patient that was associated with the treatment: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, at [7]; [63].

Issue 3 – Claim of materialisation of an inherent risk : s 5I of the CL Act

63. The defendant asserts that any injury suffered by the plaintiff was as a result of the materialisation of a risk that was inherent in the procedure that she had agreed to undertake, and that before the plaintiff underwent that procedure, she had been appropriately warned of the risks of injury that later materialised: s 5I of the CL Act. That section provides as follows:

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

64. A consideration of the application of s 5I of the CL Act is the appropriate starting point for evaluating the liability of the defendant in this case because, if that section is found to apply, it may operate as an exculpatory safe harbour that could otherwise shelter the defendant from liability by dis-applying s 5B of the CL Act: Paul v Cooke [2013] NSWCA 311, at [52]; [80].

65. As was observed in Sparks v Hobson [2018] NSWCA 29, at [42], “[T]he apparently simple language of the provision [s 5I] is fraught with difficulties” with regard to discerning its meaning. As also observed at [44]-[45] in that case, if the plaintiff establishes both negligence and the causation of the harm of which she complains in respect of the adverse outcome she has incurred from the treatment in question, s 5I is not engaged as a defence.

66. In the present case, the plaintiff’s claim of negligence relies upon an alleged failure on the part of the defendant to provide her with information that appropriately warned her of a relevant risk associated with the treatment. If that element of her claim is accepted, s 5I(3) of the CL Act is engaged with the effect of dis-applying any claimed defence based on s 5I(1) of that Act.

67. The relevant context for the consideration at this point is the intended application of heat energy in the form of high intensity focused ultrasound, said to be delivered as a low amount to facial skin by an ultrasound device capable of causing burns and scarring to affected skin areas. Having regard to the context of the already cited journal article by Miller et al, as cited by Dr McGlynn in his report, the potential for this to occur, depending upon the calibration of the amount of energy to be used, is a matter that is beyond controversy.

68. The defendant carries the onus of proof for a defence of inherent risk. In that regard, the defendant relies upon the warnings content of page 4 of a consultation form that was signed by the plaintiff on the day she had the procedure: Exhibit “1”, Tab 4; Appendix.

69. In my view, for the reasons that follow, in this case, the defendant derives no shelter from liability to the plaintiff with regard to the claimed defence of inherent risk because the risk content of that form was not relevantly or effectively drawn to the plaintiff’s attention before the treatment commenced.

70. The claimed defence of inherent risk stands to be assessed and decided according to a consideration of the available evidence from the plaintiff, the defendant’s own documents, and in conjunction with the explanations contained in the medical evidence.

71. The defendant argued that the consultation form that was provided to the plaintiff for signature constituted a relevant disclosure of the potential risk of harm, namely a burn, which has in fact materialised: T47.47; T48.16; T54.12; T58.40. The defendant argued that the operation of s 5I of the CL Act therefore precludes the plaintiff from succeeding in this case because she was warned of the inherent risk that materialised: T56.17.

72. On that basis, the defendant submitted that since the plaintiff had signed the form, the content of which referred to risks, it should not bear any liability for the materialisation of the inherent risk that materialised: T59.43 – T60.18. That submission assumes that there was no negligence on the part of the defendant in the circumstances in which the plaintiff sustained injury.

64. In assessing whether an inherent risk materialised for the purpose of an application of s 5I, the matters extracted from the journal article by D Miller et al, as summarised at [43] above and following, becomes pertinent to this analysis.

65. The plaintiff had no previous knowledge of the risks of HIFU treatment. She first became aware of such treatment when it was offered to her either instead of, or in addition to, a facial treatment, along with the representation made to her by the defendant’s employee Ms Chen in terms that the treatment offered was not only safe, but very safe: T26.26.

66. The defendant did not call evidence to dispute the plaintiff’s evidence that no verbal explanation had been provided to her as to the risks of the treatment, along the lines set out in the terms contained in the portion of the consultation form reproduced in the Appendix. The plaintiff’s account to that effect was not inherently improbable and I accept that account as correct.

67. The plaintiff was asked to sign the consultation form by another of the defendant’s employees (T6.23; T12.43; T13.2 – T13.11), not Ms Chen, who was the trained operator of the ultrasound device, and this occurred only after the treatment she had agreed to had already commenced by the application of anaesthetic cream.

68. The plaintiff’s agreement to undertake the treatment must be viewed in the overall context of a representation as to the safety of the treatment where that representation had induced the plaintiff to have the treatment of which she now complains. In that setting, the defendant had not informed or apprised the plaintiff of the risks she was exposing herself to in agreeing to have the cosmetic treatment offered to her. In those circumstances I find that at the relevant time, she had no technical or detailed understanding that the treatment she had agreed to, carried with it inherent risks of harm.

69. In my opinion the defendant’s submissions as to inherent risk greatly overstate the significance of the fact that the plaintiff signed page 4 of the consultation form without beforehand having read its content. I take that view because the defendant made no plea of contributory negligence in this case and it made no arguments to the effect that the plaintiff had adopted a position of wilful blindness to the risks of the treatment she was about to undertake at the time the form was presented to her for her signature, and which she signed without first reading.

70. Beforehand, the plaintiff had no knowledge of any risks associated with the treatment. On the contrary, she was told it was very safe. In circumstances where, by reason of the process of certification undertaken by Ms Chen, the defendant must be taken to have been aware of potential risks of harm, I consider that the defendant should not be absolved from responsibility for the materialisation of skin damage to the plaintiff’s face, on the basis of an argued inherent risk where the plaintiff had not been beforehand alerted to the risks associated with the treatment: s 5I(3) of the CL Act.

71. Not only did the defendant fail to alert the plaintiff to the existence of risks, but there is no evidence to suggest the plaintiff was asked to actually read the fourth page of the consultation form. I consider that the defendant’s action of proffering the form to the plaintiff for signature for a “legal issue”, without further explanation, did not operate to either relevantly or sufficiently alert the plaintiff to the fact that she was exposing herself to known and inherent risks of harm from the treatment she was about to have performed upon her face.

72. In the context in which the term “legal issue” was raised by the defendant, the term was ambiguous. For example, it could have simply meant that a legal record of the treatment was required to be kept, and that a signature to evidence acknowledgment of that fact was being requested for that purpose. The defendant did not argue that the contextual use of that term “legal issue” should have placed the plaintiff on notice to inquire as to the inherent risks she was accepting by having the treatment in question. The defendant has not raised a plea of contributory negligence in that regard.

73. In my view, the term “legal issue”, as used by the defendant’s employee, lacked particularity in terms of any specific risks. I therefore find that it did not convey or give any indication to the plaintiff that she was exposing herself to treatment that carried inherent risks of harm including permanent damage to her face and to her facial expression.

74. It is instructive to review another case which considered the circumstances in which a person should be taken to have accepted inherent risks associated with an activity, is instructive: Lormine Pty Ltd & Anor v Xuereb [2016] NSWCA 200. That case involved a recreational activity, namely a sightseeing outing on a boat. In that case, at [33], it was made clear that s 5I applies whether or not a person in the position of a plaintiff was aware of the risk: s 5I(2) of the CL Act. At [36], it was explained that the concept of materialisation of an inherent risk, in the statutory sense of being avoidable by the exercise of reasonable care and skill, was a matter that the defendant must prove. In this case, the plaintiff had no basis for belief as to risk because of the representations made to her concerning the safety of the treatment.

75. In this case, the starting point for analysis of such proof is the need to show that the ultrasound machine was used in a correct or standard manner. This is not a matter that can be ordinarily assumed as some kind of presumption of normality. The defendant offered no evidence on such matters and the described circumstances do not permit any positive inference to be drawn in the defendant’s favour in that regard.

76. In the present case, the risks of permanent facial skin damage, hyperpigmentation, lumpiness and alteration of facial appearance when talking or smiling, were not risks that were made known to the plaintiff before she had the treatment. The risks of such matters occurring as a result of the cosmetic treatment in question were not explained to her by anyone on behalf of the defendant. The plaintiff was not told that skin hyperpigmentation and alteration of the shape of her mouth and cheek, when speaking or smiling, were inherent complications of the procedure. I find that she did not know of the existence of such potential consequences. In those circumstances, it would be unreasonable to uphold a defence of inherent risk pursuant to s 5I of the CL Act.

77. In the context where the defendant bears the onus of proof for a defence of inherent risk pursuant to s 5I to apply, it has not called any evidence to establish the basal assumption as to how the ultrasound machine was calibrated and operated at the time the heat energy was applied to the plaintiff’s face. Nor did the defendant call evidence as to whether the ultrasound machine was operated in accordance with specifications, or in accordance with any applicable standards or instructions, or whether the duration and points of application of the treatment to the plaintiff’s face, were in conformity with safe operating requirements for that equipment.

78. Those questions necessarily arise from the content of the journal article by Miller et al that was annexed to the report of Dr McGlynn, as summarised at [43] above and following. These were all matters of relevance to assessing the defence of inherent risk.

79. Since the defendant called no evidence on those matters, I find that it has failed to discharge the onus of proof required to establish the defence of materialisation of an inherent risk within the meaning of s 5I of the CL Act.

Issue 4 – Claim of negligence : s 5B and s 5C of the CL Act

89. Ultimately, the plaintiff’s claim of negligence consisted of two elements.

90. First, the plaintiff claims that the risks of the treatment, some of which were mentioned in the consultation form she was asked to sign after the treatment had commenced, had not been explained to her: T6.36. That element of her claim later developed into a reformulated allegation that the defendant failed to appropriately warn her of the risks of treatment: T63.8.

91. Secondly, the plaintiff argued that it should be inferred from the evidence and from the circumstances that the defendant’s employee was negligent in her performance of the procedure notwithstanding that there was no expert evidence tendered that either identified or articulated the alleged negligence: T63.3.

Particulars of negligence

92. The plaintiff’s claim of negligence was originally particularised as follows:

1. Failed to carry out appropriate testing on the plaintiff prior to proceeding with treatment.

2. Failed to properly operate the “3D Skin Lifting by Ultrasound”;

3. Failed to head (sic) the plaintiff’s warnings that the procedure was causing her discomfort;

4. Failed to observe that the plaintiff was in a position of peril;

5. Failed to heed the plaintiff’s warnings of discomfort.

93. In the way the case proceeded, without objection, the plaintiff’s claim that the defendant had been negligent was ultimately advanced on the basis of an argued failure to appropriately warn her of the risk of the complications that she has incurred: T63.8.

94. On 4 October 2019, that position was clarified and confirmed when the case was listed for mention. At that time, the parties confirmed the view that they were sufficiently at issue on that question so as to dispense with the need for a formal amended document to be filed. Accordingly, a facilitative order was made to amend the plaintiff’s particulars of negligence to include a claim of an alleged failure to inform and warn of the risks of the treatment in question: s 14 of the Civil Procedure Act 2005 (NSW).

Legislation

95. The plaintiff’s claim that the defendant was negligent, on either of the two bases relied upon, must be considered within the framework of s 5B and s 5C of the CL Act, which provides:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

96. Section 5C of that Act provides:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Alleged negligent failure to inform and to warn

97. The plaintiff claims that the defendant negligently failed to warn her of relevant risks, and provide her with information relevant to the decision on whether or not to have the treatment she was offered. The plaintiff agreed to have the treatment on the basis of the representation that it was safe, in circumstances where she had not been provided with relevant information as to the risk of potential harm before the treatment was commenced.

98. In general, the duty of a treatment provider to provide relevant information or warnings, as to the risk of harm from proposed elective treatment is derived from the inherent underlying common law right of an individual to decide to choose or to accept what is to be done to their body, absent circumstances of emergency, and it also derives from the policy consideration of providing protection from unacceptable physical harm: Wallace v Kam [2013] HCA 19, at [36]; Rogers v Whitaker (1992) 175 CLR 479, at p 489; [1992] HCA 58.

99. In my opinion, the factual context of the present case, where it was the defendant and not the plaintiff who held the repository of relevant knowledge on matters concerning safety and risk associated with the ultrasound treatment that was represented to be safe, and where the plaintiff was in name and in effect, a patient being provided with cosmetic treatment for commercial gain, indicates that there is no material distinction between the medical settings referred to in the cases of Rogers v Whitaker and Wallace v Kam, and the cosmetic setting of elective “skin lifting” by ultrasound treatment under present consideration. This is so, especially where the defendant’s own documents made reference to the plaintiff being the patient in respect of the treatment.

100. In essence, the plaintiff’s case in negligence was opened on the basis of a failure by the defendant to explain the risks that were referred to in the defendant’s consultation form, or at all, and that part of the treatment had already commenced before that form was produced to her for her signature: T6.35. The plaintiff submitted that in those circumstances no proper risk warning had been given to her or brought to her attention before the treatment commenced (T63.7), and that even if the consultation form were to be construed as a warning, it did not adequately identify the risk that eventuated or materialised: T63.17.

101. As was the case in Lormine Pty Ltd & Anor v Xuereb, cited at [83] above, where liability was sought to be avoided on the ground of a written disclosure of information as to risk, it is important to examine the legal relationship between the parties, in this case, their contractual relationship.

102. Earlier, in April 2017, the defendant’s employee Ms Chen persuaded the plaintiff to have the treatment in question as a commercial promotion by the defendant’s business where beforehand, all the plaintiff had been seeking from the defendant was a facial cosmetic treatment with which she was familiar because of her previous contact with the defendant’s business. She agreed to have the treatment promoted to her by the defendant and in consideration of her paying the defendant the relatively large sum of $5,000 compared to the previous cost of $100 for a facial treatment from the defendant, the defendant agreed to provide her with that promoted treatment. I find that the plaintiff entered into that agreement on the basis of the representation that the treatment was not only safe, but also that it was very safe.

103. In my opinion, implicit in the agreement reached between the plaintiff and the defendant was an obligation on the part of the defendant to provide the plaintiff with appropriately factual and truthful warnings as to the nature of the risks associated with the treatment being offered. That is so, particularly as the defendant’s employee had been trained in the use of the ultrasound equipment for aesthetic or cosmetic purposes, and where she had warranted to the plaintiff that the treatment was not only safe but very safe.

104. I infer from Ms Chen’s certificate of training, and from the cited representations that she made to the plaintiff, that the defendant’s employee, Ms Chen, had received relevant safety instruction directed at enabling her to exercise reasonable care to avoid harm being caused to those on whom the equipment would be used for cosmetic purposes. There would have been no other factual basis for Ms Chen to have made such representations but for her training and certification.

105. I am satisfied from the described circumstances that Ms Chen must have known there were potential risks of harm comprising possible facial tissue damage associated with the ultrasound heat treatment before she offered that promotional treatment to the plaintiff. I find that when she did so, and at all times thereafter, she unfortunately did not disclose important information to the plaintiff as to the potential risks of harm from such treatment. As a result, the plaintiff was prevented from making an informed decision as to whether or not she should expose herself to such risks.

106. The plaintiff’s consent to the procedure was obtained well before she submitted herself to the treatment in question. The plaintiff’s consent to the treatment became manifest when she started making instalment payments to the defendant totalling $5,000, as was requested by the defendant, and this only occurred after she had been given the representation that the treatment would be very safe.

107. In my view, the defendant’s subsequent action on 16 June 2017, in proffering the last page of the consultation form to the plaintiff to sign after she was already laying down supine on the treatment bench, did not relevantly constitute consent to risk taking on her part. At that time, the treatment had already commenced, with the plaintiff’s facial skin having been prepared and numbed by an unidentified anaesthetising cream as the first step in the treatment, as a precursor to the application of ultrasound heat energy. The fact of the plaintiff’s consent to the treatment occurred much earlier, when the instalment payments had commenced.

108. At the time the defendant’s employee applied the numbing cream to the plaintiff’s face, she then provided the plaintiff with only the last page of the consultation sheet comprising Exhibit “1”, Tab 3 (reproduced in the Appendix to these reasons). This was in circumstances of some considerable ambiguity in that the plaintiff was only asked to sign that page for a “legal issue” that was not the subject of further elaboration at that time. In my view, that did not constitute valid consent as the content of the form that related to risk had not been drawn to her attention at that time.

109. After the plaintiff had received Ms Chen’s representation that the treatment offered to her was very safe, there was no need for her to question the meaning or the significance of the term “legal issue” or make further enquiries about risk. The defendant has not raised any plea of contributory negligence in this case. In any event, absent any evidence of obvious risk, a matter which has not been pleaded, it was the defendant’s obligation to disclose relevant information as to the risks. The plaintiff was entitled to rely upon the representations made by Ms Chen, and I find that she in fact did so.

Section 5B(1) of the CL Act

110. The journal article by Miller et al, as commented upon by Dr McGlynn, provides clear evidence that plainly demonstrates that there was a risk of facial skin damage occurring following HIFU treatment. In my view this was a risk of which a reasonable person in the position of the defendant, with knowledge and training in the use of ultrasound for cosmetic treatment purposes, knew and ought to have known: s 5B(1)(a) of the CL Act.

111. In that context, the risk of facial burns, scarring and disfigurement was not an insignificant matter, especially where the treatment was of a cosmetic nature aimed at cosmetic enhancement, and not aimed at producing a cosmetic detriment. In light of those known risks, it is difficult to understand the factual basis for safety representations made unless it is to be assumed that there would only be a very low amount or dose of ultrasound applied: s 5B(1)(b) of the CL Act.

112. In the described circumstances, I find that a reasonable person in the position of the defendant, including the defendant’s employee Ms Chen, would have taken the commonsense precaution of warning the plaintiff of the substance of the risk of incurring facial skin burns, scarring and cosmetic disfigurement, before taking the irrevocable step of applying such treatment: s 5B(1)(c) of the CL Act.

110. The important task of providing relevant information as to risks in such circumstances required a more focussed discussion than simply having an employee of unstated credentials, not being the person providing the ultrasound treatment, proffering a form to be signed for a “legal issue”, without beforehand ensuring that the plaintiff had understood the risk disclosing content of that form, as well as giving some indication of other relevant risks that were not mentioned on that form. The defendant simply failed to attend to that important task.

111. The defendant had failed to disclose to the plaintiff that there was a risk of skin depigmentation and facial tethering or dimpling that would become visibly evident at times when she would talk or smile. None of those potential untoward outcomes were mentioned in the defendant’s consultation form or otherwise disclosed to the plaintiff.

112. On the basis of the preceding analysis, I find that the plaintiff has satisfied the three pre-conditions required to base a finding of negligence with regard to her claim of failure by the defendant to provide her with relevant information and warnings as to the risks of the treatment: s 5B(1) of the CL Act. That conclusion necessarily then leads to a consideration of the matters stipulated in s 5B(2) of the CL Act on the failure to warn question.

Section 5B(2) of the CL Act

116. In my view, there was a significantly high probability that harm would occur because of the factual representation that the treatment on offer was very safe, and because the plaintiff was kept in ignorance of the true nature of the risks due to non-disclosure of relevant information. The plaintiff’s right of autonomy to make decisions about what should happen to her facial skin was infringed and was in effect disregarded by the defendant, and as a result, she suffered lasting skin damage. In my view, a reasonable person in the position of the defendant would have taken elementary precautionary steps to ensure that the plaintiff was appropriately provided with information relevant to risk so as to enable her to make an informed decision on whether or not to accept and take such risks: s 5B(2)(a) of the CL Act.

117. This was because the potential serious harm of lasting facial skin damage could occur if excessive or incorrectly applied ultrasound heat were to be provided to the face in the course of the cosmetic treatment in question: s 5B(2)(b) of the CL Act.

118. The burden of taking the precaution of providing the plaintiff with relevant information as to matters of risk would have been negligible to a person in the position of the defendant, especially where the amount of $5,000 was being charged for the treatment that was offered as a business promotion for the defendant’s commercial gain: s 5B(2)(c) of the CL Act. No relevant social utility considerations arise from the described circumstances: s 5B(2)(d) of the CL Act.

119. In addition to the consideration of the matters set out in s 5B(1) and s 5B(2) of the CL Act, consideration must also be given to the matters referred to in s 5C of the CL Act on the failure to warn question. That consideration now follows.

Section 5C of the CL Act

120. In my view, any person in the position of the defendant, offering facial skin treatment that involved the application of energy in the form of heat generated by an ultrasound device applied to the face, would have exercised reasonable care by taking the negligibly burdensome precaution of providing relevant information to the patient about the risk of harm in the form of potentially permanent skin damage: s 5C(a) of the CL Act.

121. In my view, the exercise of reasonable care in the described circumstances required that relevant information as to the nature of the risk of HIFU ultrasound treatment, as referred to in the cited journal article by Miller et al, be disclosed to the plaintiff: s 5C(b) of the CL Act.

122. In the setting of the defendant’s commercial business operation, and in the context of the defendant offering cosmetic treatment as a business promotion, consistent with the exercise of reasonable care, there was no other reasonable practicable course open to the defendant but to disclose relevant information as to the risk of harm in order to permit the plaintiff to make an informed decision on whether or not to accept the offer of treatment where an array of such risks were known or ought to have been known by the defendant: s 5C(c) of the CL Act. That is so because ultimately, it was the plaintiff who bore the burden of those risks.

Conclusion on negligent failure to inform and to warn

123. I therefore conclude that the defendant negligently failed to inform the plaintiff of relevant information as to the risk of lasting facial skin damage to which she would be exposing herself if she proceeded to undertake the treatment that the defendant had promoted to her, in lieu of the simpler form of cosmetic facial treatment she had initially sought from the defendant, and with which she was familiar.

Alleged negligent operation of the ultrasound device

124. It is axiomatic that the plaintiff has the onus of proving the defendant was negligent in the administration of the ultrasound treatment that was applied, and that such negligence was the cause of her claimed damage: s 5C and s 5D of the CL Act.

125. In seeking to discharge that onus of proof it is insufficient for a plaintiff to simply prove factual causation as required by s 5D(1)(a) of the CL Act, as distinct from cases where there has been a demonstrated failure to inform, advise and warn of the risks of a procedure: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, at [29]. That latter consideration concerning the failure to warn is set out at [97] – [123] above.

126. In the present case it was common ground between the parties that no expert evidence was introduced to support an argument on the particulars that the defendant was negligent in the manner in which the procedure was performed.

127. As a consequence, the defendant argued that the absence of expert evidence in this case was fatal to the plaintiff’s claim of negligent operation of the ultrasound device: T5.2. In support of that proposition, in final submissions (at T52.48 – T60.50), the defendant drew attention to, and relied upon, my earlier decision in a similar but not identical case, involving non-medical laser cosmetic treatment to the face: Machado v Advanced Dermatology Group Pty Ltd [2013] NSWDC 85. The plaintiff in that case failed because she had sued an incorrect party, but the negligence claim was nevertheless evaluated.

128. That case involved a claim of negligence where facial burns occurred due to the application of laser energy to the face. That treatment was applied in the course of a non-surgical laser cosmetic facial treatment comprising a 60 minute facelift. The following passages are extracted from that case:

“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.”

129. In essence, counsel for the defendant developed an argument, based on the above reasoning in Machado, that in the present case, the treatment given to the plaintiff by the defendant was a non-invasive, non-medical therapeutic procedure and therefore, there should be no finding of negligence on the defendant’s part because the plaintiff has not called any expert evidence “in terms of what actually caused the burn”: T52.43.

130. The defendant further submitted that what was required but lacking in the present case was evidence from an expert following an inspection of the ultrasound machine in question to indicate that the burning of the plaintiff’s facial skin was caused by negligence on the part of the defendant: T52.45.

131. The defendant further submitted that the plaintiff failed to discharge the onus of proof as to the standard of care required, consistent with my cited reasons in Machado: T53.47. In that regard, the defendant argued that in this case, it could not be reasonably inferred that the plaintiff’s facial burns were due to negligence on the part of the defendant: T53.21.

132. Those arguments as raised by the defendant require a consideration of whether the decision in Machado is distinguishable from the facts of the present case. This was a matter raised with the defendant in argument: T58.13; T59.39. In my view, notwithstanding the defendant’s arguments to the contrary, the present case is subtly but nevertheless materially distinguishable from the circumstances that were the subject of the consideration in Machado. This is so for a number of reasons:

1. In Machado there were no safety representations made by the defendant of the kind made to the plaintiff in the present case;

2. The decision in the case of Machado did not involve a consideration of a case of failure to warn: [2013] NSWDC 85, at [152]. Instead, that case concerned alleged operator negligence where no evidence was called by the plaintiff to either directly or by means of inference, sustain a finding of operator negligence;

3. In the present case, the defendant gave no evidence as to the manner in which the treatment was applied to the plaintiff’s face, whereas in Machado, such explanatory evidence was given by the defence, which therefore required expert evidence in order to contradict the proposition that the laser energy had been applied safely. Furthermore, in that case, insufficient evidence was called to form an adequate factual basis for inferring negligence as an alternative case. In the present case the defendant did not call any evidence on those matters;

4. There is an obvious apparent distinction between laser treatment which was stated to be aimed at deep tissues, as was the case in Machado, and the present case, where the treatment was stated to be aimed at delivering a low amount of focussed ultrasound energy to the skin, a process that was represented to be very safe.

133. In contrast to the position adopted by the defendant in the present case, the plaintiff maintained that a reasonable inference to be drawn was that the treatment in question had been performed negligently. In making that argument, the plaintiff adopted the analysis outlined in Machado, at [132]-[141], based on Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45, but to a different result than that which prevailed in Machado due to the differing factual circumstances.

134. In that regard, the plaintiff submitted that a positive inference should be drawn from Ms Chen’s representations of safety and from the subsequent development of redness with skin bubbling or blistering, the inference being that the ultrasound procedure was not correctly applied to the plaintiff’s face: T63.4.

135. In that connection, it is relevant to note that Dr McGlynn considered that in this case, the mechanism of injury was that the plaintiff had sustained thermal burns due to the application of ultrasound to her facial skin. Given the references to the series of described risks as set out in the journal article by Miller et al, Dr McGlynn’s conclusion is certainly plausible.

136. That said, Dr McGlynn’s opinion, that the damage to the plaintiff’s facial skin could have been caused by the delivery of excessive ultrasound energy or an application of ultrasound for an excessive duration, is a statement of plausibility that does not amount to a definitive statement of negligence or causality.

137. Therefore, of itself, Dr McGlynn’s cited statement cannot be taken to be a statement of proof of negligence as it has not been sufficiently explained with cogent reasons, particularly because the actual dosages or settings used in the plaintiff’s treatment are not in evidence. However, the journal article by Miller et al, presented by Dr McGlynn provides relevant material for consideration of the plaintiff’s case framed in operator negligence.

138. In Machado, at [137], [144]-[145], the argument that the nature of the plaintiff’s injuries bespoke negligence was not accepted because the intention of the treatment was to create damage at the dermal junction of the facial skin in order to cause a healing process that involved tightening of the underlying structures. In that case there was no basis upon which to infer that excessive laser energy had been applied.

133. In contradistinction to the circumstances in Machado, where the aim was to cause damage to the dermal junction of the skin layers, the defendant represented to the plaintiff that the treatment was very safe: T26.26. That description did not raise any communicated suggestions of skin damage of any kind, or of scarring.

134. The question which therefore arises is whether the state of the evidence reasonably permits an inference, on the balance of probabilities, that during the application of heat energy by ultrasound to the plaintiff’s face, there was a departure from the expected standard of care on the part of the ultrasound operator because of incorrect performance of the procedure, an inference which the defendant submits is not available in this case: T55.14 – T55.32; T60.30.

135. The defendant argued that an expert opinion based on an inspection of the ultrasound machine was necessarily required to support a finding of negligence and that beforehand, to support such a finding, the machine must have been the subject of expert inspection: T56.44. However, ultimately the defendant conceded that expert evidence was not a necessary pre-condition for finding negligence: T59.27.

136. It has been said in other cases that the absence of expert evidence supporting a plaintiff's claim of professional negligence represents a subtraction from the case sought to be made, but that the absence of such evidence is not necessarily fatal to such a claim: Jackson v Verco, unreported, 17 January 1992, Full Court of the Supreme Court of South Australia, at p10; F v R (1983) SASR 189, at p 201.

137. In that regard, there are appropriate cases where direct proof of negligence may be absent or lacking, but it may nevertheless be possible to infer from the lay and expert evidence, that negligence has occurred, or that a causal relationship exists: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29, at [87]-[88].

138. Where expert evidence specifically identifying negligence is absent, there are well recognised constraints against drawing inferences to the effect that negligence occurred where such conclusions remain unsupported either by cogently expressed expert opinion or by facts permitting reasoned inferences. Such constraints are aimed at avoiding impermissible speculation where the claimed supporting basis for the inferences does not rise above the status of mere conjecture: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19, at [8].

139. There must be a proper factual foundation for drawing reasoned inferences, as distinct from impermissible conjecture. The party seeking such inferences must be able to identify some relevant factual foundation to base an inferential finding of negligence notwithstanding the fact that the material circumstances in question in the proceedings are peculiarly within the knowledge of the defendant: Condos v Clycut Pty Ltd [2009] NSWCA 200, at [68]-[71]. The same principle applies concerning the evidence from which reasonable inferences may be drawn: State of NSW v Fuller-Lyons [2014] NSWCA 424, at [30]-[31].

140. In some cases that issue may be conveniently addressed through interrogatories, if not expert evidence. In this case no answers to interrogatories were tendered to identify what, if any, attention the defendant gave to the settings and calibrations of the ultrasound machine for the purpose of the plaintiff’s treatment, or as to the manner in which that treatment was applied to her face.

141. As there is no such evidence in this case, the plaintiff must rely upon an inference that the defendant’s employee was negligent concerning the manner in which the ultrasound was applied in this instance. In that regard, as foreshadowed at [44] above and following, this requires an evaluation of the Miller article that was appended to the report of Dr McGlynn.

142. In my view, the Miller article provides a relevant and useful background by which to assess the reasonableness of the defendant’s representation that the treatment in question was very safe. That article also provides a basis for the consideration of whether the defendant was negligent in this instance.

143. In the present case, there was no evidence introduced by either party to describe the regularity or otherwise of any process that might have taken place with regard to monitoring and testing the machine for safe operation and verification of appropriate ultrasound fields to assure efficacious treatment as referred to in the Miller article dealing with Quality Assurance, as summarised at [49] above.

144. As a consequence of the absence of such evidence, no positive or negative inferences may be drawn on matters of monitoring or testing. Accordingly, any inferences as to an alleged departure from the standard of care by the operator must be confined to the circumstances and the manner in which the treatment was applied. In that regard, I draw no adverse inferences from the fact that Ms Chen’s training had only been certified as complete just four days before she actively promoted the treatment to the plaintiff with the representation that it was very safe.

145. In light of the above matters that were introduced through the evidence of Dr McGlynn, it is difficult to understand how, on any reasonable view, the ultrasound treatment promoted by the defendant could reasonably have been represented to the plaintiff as being not only safe, but very safe (T26.26) unless it was to be applied at a very low dose.

146. It was against the background of that article that Dr McGlynn concluded his report with the statement:

“In particular, the article highlights of (sic) the risk of burn due to heat generated by ultrasound therapy. In Ms Jiang’s instance, it is apparent that she sustained thermal burn due to application of ultrasound to her facial skin. This could have been caused by excessive ultrasound energy being delivered or excessive duration of the ultrasound application”

[Exhibit “B”, p 4]

153. In light of Ms Chen’s certification and training, I infer that she must have been aware of a risk that facial burns might occur as a result of the application of ultrasound of the kind contemplated by the defendant, especially if delivered at too high a dose or for too long in duration. That much is also clear from the defendant’s own document reproduced as the Appendix to these reasons.

154. The fundamental question is whether or not the treatment was delivered in a low amount of focussed ultrasound energy to the skin, and not to the deeper structures.

155. In that regard, it is reasonable to infer from the safety representations made by Ms Chen that the superficial skin and not the deeper structures would be targeted by the application of a low amount of ultrasound energy. Otherwise, Ms Chen’s safety representations would have been factually incorrect and they would have been proffered inappropriately.

156. I infer from the safety representations made by Ms Chen, and from the content of the first paragraph of the Appendix to these reasons, that it would have been most unlikely a low amount of ultrasound energy applied to the face would cause damage to the deeper structures of the plaintiff’s face and would result in alteration of her facial appearance when smiling or speaking, also producing areas of hyperpigmentation.

157. On the basis of the foregoing analysis, I infer that the ultrasound treatment received by the plaintiff was not delivered as a low amount to the regions of the plaintiff’s face in the area of her nasolabial folds and the underlying structures. This has resulted in the untoward abnormalities referred to above, and in lumpiness of the associated underlying tissues.

158. In light of those findings, I now turn to a consideration of the elements to be addressed and proven by the plaintiff as required by s 5B(1) of the CL Act in order to sustain a claim of operator negligence.

Section 5B(1) of the CL Act

159. As to s 5B(1)(a) of the CL Act, I consider that the defendant must have known that there was a foreseeable risk of lasting harm to the appearance and function of facial skin from the use of the ultrasound device for cosmetic purposes. I have arrived at that conclusion because of the unambiguously positive terms of the reassuring representation made by Ms Chen that the procedure was very safe. I infer from the cited conversation with Ms Chen, as reported by the plaintiff, and which was not challenged, that there was no communicated risk of harm.

160. Ms Chen’s subsequent conversation with the plaintiff to the effect that reddening and blisters were normal (T16.30 – T16.38), was not communicated beforehand. Clearly, Ms Chen addressed the question of risk of harm at that time by downplaying the risk with a safety assurance. That reassurance was given to the plaintiff against the background of the known risk factors. Some of those risks are mentioned in the journal article by Miller et al, as cited at [43] above and following, and they must have been known to a trained and certified ultrasound operator such as Ms Chen. In the conversations the plaintiff had with the employees of the defendant, there was no discussion of the potential for facial skin hyperpigmentation or for facial dimpling to occur as potentially permanent residual consequences. This was a departure from the duty of care owed to the plaintiff.

161. As to s 5B(1)(b) of the CL Act, it is plain that the identified risk of harm of lasting damage to facial skin was significant, or to use the words as formulated by the statute, “not insignificant”. The application of heat energy to the face by the use of an ultrasound device raised a not insignificant risk of creating skin burns. The journal article by Miller et al describes the bio-effects of applying heat energy by ultrasound to human tissues. I infer from Ms Chen’s training and certification that she must have learnt of, and known of, such potential consequences, and that she would take such matters into account when targeting the plaintiff’s face with calibrated ultrasound.

162. As to s 5B(1)(c) of the CL Act, I consider that a reasonable person in the position of the defendant would have taken a range of precautions in the described circumstances. Those precautions would have included checking for the correct calibration of the heat energy to be delivered when using the device, applying it correctly to the face, including for the correct duration of time, and in particular, beforehand providing relevant information to the person about to be treated as to the potential risks of harm in the form of damage to facial skin associated with the treatment in question. The plaintiff was not provided with any information along those lines when this was clearly required. The defendant’s failure to provide that information was a departure from the duty of care the defendant owed to the plaintiff in the described circumstances.

163. I now turn to a consideration of the elements required to be addressed by the terms of s 5B(2) of the CL Act concerning the claim of operator negligence.

Section 5B(2) of the CL Act

164. As to s 5B(2)(a) of the CL Act, in my view, a reasonable person in the position of the defendant, must be taken to have known of the risks along the lines identified in the Miller et al journal article provided by Dr McGlynn. Such a person would have provided the plaintiff with information and warnings as to the risk of facial disfigurement. If reasonable care was not taken to follow that course, there was a significant probability that the plaintiff would thereby be exposed to the risk of harm in the form of lasting damage to facial skin without the opportunity of making an autonomous decision as to whether or not to have that treatment in the knowledge of such risks.

165. As to s 5B(2)(b) of the CL Act, if the precaution of providing information and warnings had not been taken, it was very likely that serious harm would result, as is generally evident from the journal article by Miller et al.

166. As to s 5B(2)(c) of the CL Act, in my view, there was negligible burden on the defendant to take the time to appropriately provide the plaintiff with information as to the risks associated with the treatment.

167. No issue of social utility relevantly arises: s 5B(2)(d) of the CL Act. The defendant carried on the commercial operation of marketing, promoting and selling its services to customers. In those circumstances, considerations of recipient safety take on a vitally important focus.

168. In my view, for the above reasons, the requirements of s 5B(1) and s 5B(2) of the CL Act, have been satisfied so as to lead to a finding of negligence on the part of the operator of the ultrasound device.

Section 5C of the CL Act

169. In light of the potential for heat generated by ultrasound to cause facial burns when used for cosmetic purposes, it would have been a negligible burden on the user, in this case the defendant’s trained employee, to take precautions to ensure that the setting used in the treatment would be set at a level that would avoid unwelcome injury and damage to the plaintiff’s facial skin. There is no basis in the evidence to suggest that it was impracticable for a test application of the ultrasound to be trialled to see what reaction would occur on the plaintiff’s skin before undertaking a more extensive application of ultrasound treatment: s 5C(a) of the CL Act.

170. In the described circumstances, there was an obligation on the defendant to take reasonable care to avoid injury that was reasonably foreseeable if the ultrasound settings were not calibrated to a low amount that was unlikely to cause facial burns and lasting skin damage: s 5C(b) of the CL Act.

171. Other than the provision of relevant information as to risk, as already observed at [122] above, no other liability considerations arise: s 5C(c) of the CL Act.

Conclusion on operator negligence

172. I therefore conclude that in addition to the defendant’s negligent failure to warn the plaintiff of the potential for lasting skin damage if the treatment was undertaken, the defendant’s employee was negligent in the manner in which the procedure was performed.

Conclusions as to negligence

173. I find that the plaintiff has proven both strands of her argument that the defendant was negligent, namely that of a failure to inform and warn of material risks and a failure to exercise reasonable care in the application of the treatment.

Issue 5 – Causation of harm : s 5D of the CL Act

174. To sustain a finding of negligence that justifies an award of damages, the plaintiff must satisfy the requirements of factual causation and the scope of liability requirements as provided by s 5D of the CL Act, which provides as follows:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

Factual causation

175. As to factual causation, I am satisfied that but for the treatment in question, the plaintiff would not have incurred skin depigmentation and tethering to the left corner or the side of her mouth and cheek whilst talking or smiling: s 5D(1)(a) : Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].

176. In the context where the plaintiff was seeking to have a skin cleansing facial treatment, if she had been told of the risk of scarring and residual facial disfigurement, in circumstances where she was seeking to improve or enhance her appearance, or her subjective perception in that regard, I find it would have been most improbable that she would have exposed herself to such risks and accepted the treatment offered to her if she had been told of the risks described: s 5D(1)(a) of the CL Act.

Scope of liability

177. As to the scope of the defendant’s liability, the defendant charged the plaintiff the significant fee of $5,000 for the cosmetic treatment that it persuaded her to undertake. In my view, the activity of promoting that treatment and charging a fee of that proportion carries with it and engages the implication that reasonable care would be taken not only with regard to providing information but also in the performance of the treatment so as not to cause avoidable damage to the appearance of the plaintiff’s face. Accordingly, in my view, it is appropriate that the scope of the defendant’s liability be extended to include the disfiguring harm suffered by the plaintiff in this instance: s 5D(1)(b) of the CL Act.

Conclusion on causation

178. I find that the plaintiff has satisfied all of the requirements for proof of causation of the harm she has suffered. Her claim of negligence is therefore made out. I now turn to the assessment of her claim for damages.

Issue 6 – Assessment of damages

179. In the paragraphs that now follow, I set out my findings on the assessment of the plaintiff’s damages.

Non-economic loss

180. The parties made disparate submissions on the extent to which damages should be awarded. On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at 19 per cent of a most extreme case: s 16 of the CL Act. In contrast, the defendant submitted the assessment should be below the threshold, 15 per cent of a most extreme case. The consequence of the defendant’s submission is that the plaintiff would receive no award for non-economic loss.

181. The plaintiff was concerned to improve her perception of her appearance, which is why she agreed to have the subject treatment. She therefore succumbed to the defendant’s promotional invitation to have that treatment and as a result she has suffered lasting damage to her facial skin.

182. A review of the medical evidence is instructive in analysing the acceptability or otherwise of the defendant’s submission to the effect that there is little if anything wrong with the plaintiff as a consequence of the procedure.

183. Dr McGlynn saw the plaintiff at the request of her solicitor on 24 January 2018. He found that the plaintiff had been left with what he described as mild hyperpigmentation of her facial skin involving the entire lower lip and chin, extending laterally to the nasolabial skin fold in contrast to the uniform and normal pigmentation of the rest of her face: Exhibit “B”, p 3.

184. Although Dr McGlynn’s assessment was of mild hyperpigmentation, the plaintiff’s own perception is an important descriptor for the purpose of this assessment. She is also concerned about the deeper appearance of the creases at the corner of her mouth when she smiles. That is a matter of some significance to this assessment.

185. Associate Professor Meares saw the plaintiff at the request of the defendant’s solicitor on 21 May 2019. He had been provided with Dr McGlynn’s report. It appears that he chose not to comment on the hyperpigmentation that had been identified by Dr McGlynn. At page 5 of his report, Associate Professor Meares stated:

“I have read the report by Dr Michael McGlynn dated 24 January 2018 and I am in agreement with that report. I do note that his report is dated 24 January 2018 which is over a year ago I am of the opinion that Ms Wenting Jiang’s appearance has improved since his examination.”

[Emphasis added]

186. I interpret that cited opinion to mean that Associate Professor Meares has accepted the presence of the condition of facial skin hyperpigmentation as he did not specifically reject or challenge the point when expressing his agreement with Dr McGlynn.

187. Associate Professor Meares’ opinion that the plaintiff’s “appearance has improved since” Dr McGlynn’s examination should in my view be given little if any weight as he has not provided or expressed any identifiable reasons for that subjective view as required by UCPR Sch 7 cl 5(c), and because, logically, he did not have any personal comparative vantage point from which to reliably make that observational opinion.

188. The plaintiff does not accept that the hyperpigmentation on her face has improved. She disguises the affected area with make-up. I accept her evidence in that regard. This is a significant cosmetic disability that impacts on the amenity of her life.

189. The defendant made the submission that the hyperpigmentation was not evident on the plaintiff’s face when she gave her evidence. When that submission was made I indicated to counsel for the defendant that from my observation distance of about 10 feet away from where the plaintiff sat in the witness box, I could not make the assessment sought by the defendant. Similarly, it is difficult to see how counsel for the defendant could have reliably made an observation along the lines of her submission, as she was located at a similar distance away from the plaintiff.

190. Counsel for the defendant submitted that the plain paper colour prints of the photographs taken by Associate Professor Meares did not demonstrate the presence of hyperpigmentation on the plaintiff’s face.

191. In light of the cautions identified at [39] above concerning the interpretation of photographs, I am unable to accept that submission as there was no reliable expert interpretation of those images. Putting aside the fact that the images in question were not normal photographic prints, but were colour prints on ordinary A4 printing paper, not photographic paper, there was no evidence of a reliable comparison equating the plaintiff’s skin tones when viewed in person compared to the skin tone colours shown in the printed images. Nor is there any reliable evidence of a comparative similarity in the lighting conditions or in the respective photographic resolutions. Those matters, which remain unexplained, would obviously have some influence on the appearance shown in the images.

192. Furthermore, there are a number of variable factors that have not been the subject of explanatory evidence and which therefore preclude an acceptance of the defendant’s submission on this topic. Those matters include the use of non-photographic paper, the potential for differences between skin tone colours that may vary between printers, the unidimensional nature of photographs when portraying three dimensional structures, and other factors referred to in the cases cited in the preceding paragraph.

193. I must observe the cautions expressed in the already cited and well settled line of authority, which discourages fact finding by undertaking an interpretation of photographic images that counsel for the defendant would have me make without specific explanatory evidence about those photographs. I decline to proceed along the lines of the defendant’s submissions on this point, although I have studied the images in respect of which that submission was made: Exhibit “2”.

194. I also accept that since the procedure in question the plaintiff has been left with a cosmetic defect in the form of an asymmetric dimpled or tethered appearance of her left cheek near the left corner of her mouth that becomes noticeable as she smiles or speaks. I accept that the plaintiff finds those untoward developments embarrassing.

195. Counsel for the plaintiff submitted that the appropriate percentage assessment of damages is 19 per cent of a most extreme case according to the requirements of s 16 of the CL Act.

196. Counsel for the defendant submitted that the required assessment would not reach the threshold of 15 per cent of a most extreme case which, if accepted, would not result in any monetary award for non-economic loss.

197. I find myself unable to accept the defendant’s submissions on non-economic loss. In a case where the assessment of damages must include the subjective effects on the plaintiff of the cosmetic defects she now experiences, there are no reliable comparators for assessing damages for non-economic loss as a percentage of a most extreme case. The exercise is evaluative and is based on impression.

198. In this case, I consider the effect of the described defects on the plaintiff has been to significantly and adversely impact on her amenity of life. She is a young woman who was concerned about her appearance. She was prepared to pay $5,000 to achieve the cosmetic perception that she would look better. That prospect was obviously of value to her and her pursuit of that expectation has resulted in permanent skin damage, altered appearance and disappointment due to the defendant’s negligence. She remains upset and vexed over that result. It is unlikely that her facial defect that becomes evident when talking and smiling will disappear. She feels she must wear cover-up make-up to seek to disguise the cosmetic problems that have remained as untoward daily reminders of the treatment which she was persuaded to think would make her look better. In my assessment, her damage is not inconsequential and it requires assessment.

199. Whilst seeking to be fair to the plaintiff and not unfair to the defendant, I consider that the untoward and adverse physical and cosmetic consequences of the plaintiff’s injuries and disabilities as already identified, and her reactions to those matters, should be assessed at 19 per cent of a most extreme case: s 16 of the CL Act. Applying the current table that converts that percentage into monetary terms, I assess the plaintiff’s damages for non-economic loss in the sum of $19,500.

Future out-of-pocket expenses

200. The only acceptable remedial approach available to the plaintiff to manage the altered appearance of her facial skin is to expend approximately $25 per week on cover-up make-up in order to seek to disguise her hyperpigmentation.

201. Dr McGlynn noted that laser therapy at a cost of $5,000 was a possibility, but the outcome was unpredictable and could cause depigmentation, changing the plaintiff’s skin colour from light brown to white. He did not recommend that treatment. I consider it unlikely that the plaintiff would pursue that treatment especially given what she has experienced to date.

202. At the age of 35 years, the plaintiff has a statistical median life span of about 53 remaining years ahead of her. The 5 per cent multiplier for 53 years is 988.9. The projection of an expenditure of $25 per week at 5 per cent over 53 years (x 988.9) yields the sum of $2,472.

203. It is unlikely that her skin hyperpigmentation will disappear. It is possible that as the plaintiff ages she will be less inclined to continue to use cover-up make-up, although I also consider that proposition unlikely. Allowing for conventional vicissitudes and contingencies, I think that the above projected sum should be discounted to $2,100.

Past out-of-pocket expenses

204. There was no agreement on the plaintiff’s past out-of-pocket expenses. The plaintiff had no receipts for such expenditure, a matter that attracted criticism from the defendant.

205. The plaintiff stated that since incurring the burns from the treatment she has been spending approximately $25 per week on creams and cover-up make-up: T3.5; T63.18. This has been over approximately 115 weeks until the hearing. This is the equivalent of $2,875. I therefore award the plaintiff damages for estimated past out-of-pocket expenses in the amount of $2,875.

Interest on past out-of-pocket expenses

206. An award of interest on past out-of-pocket expenses is not excluded by the terms of s 18 of the CL Act. In my view, the ordinary principle should apply, namely the defendant has had the use of the funds to which the plaintiff was otherwise entitled, and therefore the defendant should pay interest on the sums claimable subject to the limitation within s 18 of the CL Act.

207. The published applicable interest rate for the period 16 June 2017 to date, approximately 2.3 years, is 2.5 per cent. In accordance with convention where the loss on which interest aggregates, incrementally over time, interest should be allowed at half that rate over that period. Interest at 1.25 per cent on $2,875 over 2.3 years is calculated at $82. I therefore award the plaintiff interest on past out-of-pocket expenses in the amount of $82.

Summary of damages assessment

208. A summary of my assessment of the plaintiff’s damages is as follows:

(a) Non-economic loss: s 16 of the CL Act	$19,500
(b) Future out-of-pocket expenses	$2,100
(c) Past out-of-pocket expenses	$2,875
(d) Interest on past out-of-pocket expenses	$82
Total	$24,557

Issue 7 – Costs jurisdiction

209. The defendant disputed that this Court was the appropriate forum for the determination of the plaintiff’s claim: MFI “1”, par 8. In that regard, the defendant invoked the terms of UCPR r 42.35, which provide, as follows:

42.35 Costs order not to be made in proceedings in District Court unless Court satisfied proceedings in appropriate court

(1) This rule applies if:

(a) in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and

(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted.

210. The defendant directed no submissions to this costs issue. Having regard to the complexity of the case involving the application of contentious provisions of the Civil Liability Act 2002, and the nature of the issues raised in these proceedings, I consider that the plaintiff was justified in commencing proceedings in the District Court rather than in the Local Court. In identifying that finding I do not intend to convey the meaning that the Local Court is not capable of hearing and determining such matters. However, the comparative caseloads and support structures between the two courts are different. Those matters, and the detailed consideration required, justified the plaintiff bringing her proceedings in this Court. Accordingly, there should be no restriction on the cost she should recover in these proceedings consequent upon litigating in this Court.

Disposition

211. The plaintiff has established her entitlement to a damages award for $24,557 and she should have a judgment for that amount.

Costs

212. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

213. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $24,557;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis;

3. The exhibits may be returned.

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APPENDIX

[Exhibit “1”, Tab 3, p 3, plaintiff’s signature redacted]

Decision last updated: 18 October 2019