Sansauer v Vanity Clinic Pty Ltd

[2007] NSWDC 178

CITATION:	Sansauer v Vanity Clinic Pty Ltd [2007] NSWDC 178
HEARING DATE(S):	15 June 2007
JUDGMENT DATE:	15 June 2007
EX TEMPORE JUDGMENT DATE:	15 June 2007
JURISDICTION:	District Court - Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff for $17,309; Defendant to pay plaintiff's costs on the ordinary basis
CATCHWORDS:	Breach of contract - plaintiff contracted with clinic for removal of facial blemishes - blemishes made worse by treatment - Damages for disappointment and distress, not characterised as personal injury damages, so that Civil Liability Act 2002 not applicable
LEGISLATION CITED:	Civil Liability Act 2002; s 11A
CASES CITED:	Baltic Shipping Co v Dylan (1993) 176 CLR 344.
PARTIES:	Vivien Sansauer (Plaintiff) Vanity Clinic Pty Ltd t/as The Vanity Clinic (Defendant)
FILE NUMBER(S):	3298/06
COUNSEL:	Mr M Thompson (Plaintiff) The defendant did not appear
SOLICITORS:	Gerard Malouf (Plaintiff)

JUDGMENT

1. In May 2005 Mrs Vivien Sansauer entered into a contract with the Vanity Clinic for a course of ‘photo-rejuvenation’ in relation to her face. It was represented to her that various facial blemishes (depicted in Exhibit A) would be removed by that treatment.

2. Mrs Sansauer paid $1,125 for the course of treatment, which involved five or six sessions between May and August 2005, and involved the application of heat of some sort to the affected areas of her face.

3. Mrs Sansauer had been told and understood that the treatment was painful and that it would result in swelling and disfigurement of her face following each session of treatment. She was prepared to undergo that inconvenience and distress if it meant that her facial blemishes were improved as a result (see Exhibit B).

4. Unfortunately, however, the facial blemishes were not corrected or improved by the treatment. In fact, the treatment made her face worse (see Exhibit C). In addition to Exhibit C, I personally viewed Mrs Sansauer’s face and it was evident that there were blemishes on her face that were not there prior to the commencement of the treatment.

5. I do not need to determine liability, as judgment has already been entered in favour of Mrs Sansauer on liability, and I am required only to assess any damages to which she may be entitled for the breach of the contract by the Vanity Clinic.

6. Mrs Sansauer claims a refund for the $1,125 paid, on the basis that the consideration for which she contracted was never provided, namely, the removal of her facial blemishes.

7. I am satisfied that there was a total failure of consideration and that the contract price should be reimbursed to her in the sum of $1,125, together with interest in accordance with the UCPR.

8. I turn now to the other head of damage claimed, namely damages for disappointment and distress.

9. The first matter for determination is whether the recovery of such damages is in any way limited by the Civil Liability Act 2002. In my view, that Act does not apply. The damages claimed are not damages that relate to an injury and are not, therefore ‘personal injury damages’ within the meaning of s 11A of that Act.

10. The next matter for consideration is whether it is appropriate to award damages of this nature, for breach of contract. I am satisfied that the damages claimed fall within that class of damage contemplated by the principles enunciated in Baltic Shipping Co v Dylan (1993) 176 CLR 344.

11. It only remains, therefore, for me to quantify those damages.

12. I am satisfied that the course of treatment undergone by Mrs Sansauer caused her considerable pain and distress. All that was for naught.

13. I am also satisfied that the outcome, which has left her in a worse condition than when she entered into the contract, has caused her substantial disappointment and embarrassment.

14. Having regard to the level of distress, inconvenience and disappointment caused to Mrs Sansauer by the breach of contract she is entitled to a significant award of damages. I am satisfied that the amount of those damages should be assessed in the sum of $15,000, that figure being towards the upper end of an appropriate range. There should be an award of interest on that amount which amounts to $1072 calculated at nine percent to 30 September 2006 and ten percent from 1 January 2007 to date, under the UCPR.

15. The damages awarded are calculated as follows.

Damages for distress and disappointment $15,000

Interest thereon $ 1,072

Refund of contract price $ 1,125

Interest thereon $ 112

Total $17,309

16. I therefore enter a verdict for $17,309 in favour of the plaintiff against the defendant and I direct the entry of judgment accordingly. I order the defendant to pay the plaintiff’s costs on the ordinary basis.