Tatyzo v Begovic No. DCCIV-89-2655 Judgment No. D2365

[1992] SADC 2365

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Acting Judge Thompson

Hearing

03/02/92 to 04/02/92.

Catchwords

Professional negligence - beauty therapist - standard of care - female plaintiff aged 46 - kitchenhand - total assessment prior to apportionment $14,000. Female kitchenhand; Total assessment $14,000.00

Materials Considered

• MAHON V OSBORNE (1939) 2 KB 14;
• WHITEHOUSE V JORDAN AND ANOR (1980) 1 ALL ER 650;
• F V R (1983) 33 SASR 189;
• PHILLIPS V WILLIAM WHITELY LTD (1938) 1 ALL ER 566, discussed.

Representation

Plaintiff JEAN FRANCES TATYZO:
Counsel: MR PRESTON - Solicitors: ANDERSONS

Defendant FRANCES BEGOVIC TRADING AS BEAUTY MAKER:
Counsel: MR DI FAZIO - Solicitors: PLAYFORDS

DCCIV-89-2655

Judgment No. D2365

14 February 1992

(Civil)

IN THE DISTRICT COURT

OF ADELAIDE

ACTION NO. 2655 of 1989

BETWEEN

JEAN FRANCES TATYZO

Plaintiff

FRANCESBEGOVICTRADINGAS BEAUTY MAKER

Defendant

REASONS FOR JUDGMENT OF HIS HONOUR ACTING JUDGE THOMPSON

DELIVERED ON FRIDAY THE 14TH DAY OF FEBRUARY 1992

The plaintiffsuesthedefendant for damages for negligence arising out of treatment in a beauty salon at Semaphore on about the 24th of December, 1987.

The plaintiff was born on 4th of August, 1946.

The plaintiff complains that the defendant negligently carried out the procedureof applying a semipermanent tattoo lip liner to the plaintiff's face.The defendant, Frances Begovic, conducts a beautician service under the name of Beauty Maker on Semaphore Road, Semaphore. At the material time the plaintiff says that she knew a tattooed liplinerwas available to replace lip liner pencil, and the signonthedefendant'swindowwastothe effectthat "semipermanent tattooing"wasdone and called "make up that won't wash off."The plaintiff enquired on Saturday 22nd of December and on Monday the 24th of December attended the shop for treatment.

On theplaintiff'sversion,whichisonpage7ofthe transcript, she was taken into a room at the back of a shop, laid on a bed and had the lip liner applied.The lip liner was applied by a needle dippedin an ink and it pierced the skin.She said she had no accesstoamirror.The procedure took between an hour to an hour andahalf.The result is seen in Exhibit P2.The tattooed line is about one millimetre above the natural lip line on the upper lip and below the lip line on the lower lip.She said that she had enquired astoacolour on the previous Saturday and was shown a pinky brownishcolour,verysimilar to the colour of normal lips which was on the wrist of the defendant.That was the only time she was shownthecolour. She said that when she saw the result and tattoo shewasshockedand said "it looks awful".The defendant said, "That'salright.It looks like that at first.The swelling will godown and will fade within a few days."The plaintiff said she went home and telephoned the defendant and said "I am unhappy".

The plaintiffmadevariousattemptstoremovethe tattoo line including visitingaplasticsurgeon,tattoo establishments and various other places where she thought she might obtain assistance.

What is significant in the plaintiff's version is that:-

1. Therewasnoconsultation between the plaintiff and the defendant asto wherethe line was to be located.Its location was effectively chosen by the defendant.

2. Thecolourthatwasapplied was not the colour she was shown, buta colour that turned out to be quite dark and is probably now a blue/grey colour.

3. The colour which in fact was used is quite inappropriate.

4. The plaintiff was never invited to use a mirror during the procedure to check the progress thereof.

5. Theplaintiff was never advised as to the advisability or desirability of having the lip liner done by tattoo and in particular, problems that might arise from the permanence thereof on her face.

On the defendant's versionon page 73.7 of the transcript the plaintiff first cameintotheshopon22nd December, 1987 and enquired astothe procedure.It was explained.The defendant showed the plaintiff a small heart shaped tattoo inside her wrist as the colourof the ink.This was clearly darkish blue or some dark colour. OnthefollowingMondaymorning of the procedure the plaintiff was taken to a cubicle, seated on the side of the bed and offered a mirror and lip liner pencil.She was then invited by the defendant todraw a line on her lips in the place where she wished the lip linetobetattooed.When the defendant saw that the plaintiff haddrawn thelineabout a millimetre outside the lip line, shesaidtothe plaintiff "it's up to you but it does look better if you go along the line", i.e. the lip line.She said that the plaintiff said "she wanted a bit over because she wanted to have fuller lips look fuller".

The purpose of a lip liner is to create a definite edge around the lips.It gives a defined edge to lipstick when it is applied. When usingalipliner pencil, sometimes the line is beyond the anatomical lipline and sometimes within that lip line.Its exact position dependsuponthephysiognomy of the lady's lips and the current fashion and/or a combination of both.

There is no doubt that the tattoo was placed on the outside of the lip line and remains there to this day.

The defendantenteredthebeautyindustryin1982after completing an 18 month part-time evening classe at an organization called theSkincare CentreonPortrushRoad.She then began practice from her own home.Some time in 1985 she opened a shop at Semaphore. Shedidnot practice the tattooing technique which I gather was virtually unknown in Australia except at one organization in Sydney.

In April1987 the defendant visited Penang and Singapore.In chief shesaid thatinSingapore she noticed a beauty therapist shop. Herattention was attracted by the tattooing. (page 64-65) She spoketoa beauty therapist about tattooing and colouring and how itwasdone.As a result she purchased some colour being two bottles ofblack pigment and two bottles of brown pigment and some needles. Onebottlewastendered.It has a label in Chinese characters andunderneath the words "L. Brown" in English.Whilst she was in the shop she saw the tattoo being applied to a customer's face, butto the eye.It is common ground that this technique is also used(and most commonly so) for eyebrows and eye liners.She was advisedby the beauty therapist that the ink or dye lasted for three yearsormore.This informationwaselaboratedon in cross-examination (page84etseq)when it transpired that the defendant said that she was at that tattooing shop "all afternoon", it couldbefour or five hours.She was asked to draw lip lines, eyebrow linesandshe practised with the needle on some pig skin. The period of time she spent in that establishment was later reduced to "maybefour hours."She did not perform a lip line tattoo in Singapore. She had no instruction on what might occur if during the application of the tattoo or if after the application of a tattoo a customer mightchangeher mind.Upon herreturnto Adelaide, she advertised tattooing as a service at her beauty salon.By December 1987 the defendanthad performed tattooing on two lip lines and one eyebrow.

The abovewastheextentofthedefendant'straining in tattooing, i.e. anafternooninabeautytherapist'sshop in Singapore.

The plaintiffcalledaMissEleanorH.Coultertogive evidence. Miss Coulter is a beautician and has had wide experience in thebeautyindustry. She wastrainedin Scotland.She has been employedin make-up in the film and television industry.She has workedfortheSouthAustralianFilm Corporationand the Crawford Organization.She has taught her techniques at TAFE.She has kept herself up-to-date with modern techniques by taking various courses and now operates a successful beauty salon in the city.She is aware of the permanent tattooing techniques.About 6 years ago she learntthe technique, again in Singapore.Her course lasted a week, attendance being each day for about 6 to 7 hours.She learnt the technique for eyebrow, eye and lip lining.She practised on her own lips.In the six years that have elapsed since Miss Coulter was trained shehas not had occasion to perform lip line procedures on her clientsalthough I gather she has performed numerous eye liner procedures. Shesaidthereason that she has not performed the procedure is twofold:

(a) it is painful

(b) she has not had a suitable client - the lips have not been right.

My impression from her evidence was that she had been requested to carry out lip lining on a couple of occasions but did not proceed because MissCoulter feltthat the customer was making the wrong choice.

I formedtheopinionthatMissCoulterwasan extremely impressive witness.Iacceptherevidenceasaccurateand objective. Shesaid shecouldnotspeak for what the general standard inindustryactually wasbecause she did not know what other peopledid-ifindeedthere was a general practice with regard tothis(tattooing)subdivisionofthe beautytherapy industry. MissCoulterhasgivenmevaluable guidance on the standard ofan"ordinarilygoodand careful practitioner".Her standard wasthatthe customer should be requested to draw on her face with apencillinerthelocation of the line.The beauty therapist should herselfthendrawalineonthe face if she disagreed withwherethe customerputtheline.The beauty therapist shouldthendiscuss the location of the line bearing in mind matters such as:

(a) shape of the lips

(b) state of the lips and the skin

(c)the result that the customer wished to achieve and very importantly,

(d) thatwhatwastobedonewas not only permanent, but permanent on the face of the customer.

Miss Coulter said because her treatment is permanent she could not afford to do the job without the customer's consent.By that I mean shehadto be satisfied that the customer would be satisfied with the end result.

To achieve this she supplied the customer with a mirror so that if any problemaroseduringthetattooingshecouldstop immediately. Cross-examined on this she said it was better to stop part waythroughthe procedure.One could always come back to it before proceeding.

What wasimportantinMissCoulter'sevidencewasthe following:

1. She and the customer have quite an extensive discussion as to where the line should be placed.

2. Sheadvised the customer as to both where the line should be placed and what the consequences would be.

3. Sheherself would draw the line on the customer's face in accordance with her own advice.

4. She had a range of 6 colours, and for lips the colour that was dusty pink or rose should be used.

Miss Coulter had looked closely at the plaintiff's face on the morning she gave evidence and said that in her opinion the line was:

(a) a grey colour and too dark, and

(b)too far away from the lip line.

The defendanthasconcededthat if I came to the conclusion that the defendantplacedtheliplinetattooin its present position without consultation with the plaintiff, that is the end of the matter.

Having carefully scrutinized the evidence of the plaintiff and the defendant, Ifindthattheliplinewasplacedonthe plaintiff's face in accordance with the plaintiff's instructions.I accept the defendant's version of how this came about, i.e. that the plaintiff wasinvitedto draw a line on her lips where she wanted the liplineto be placed.I reject the plaintiff's version that she was ushered into a back room or cubicle, laid on a bed and that the defendant without any further ado commenced the procedure before doing so.

I also accept that the defendant prior to the procedure showed the plaintiff thecolour blue applied.It wasdye from a bottle marked "L. Brown", in a glass dish.I accept the defendant when she said thatontheprevious Saturday (22/12/87), the plaintiff had seen afaintheart shaped tattoo on the inside of the defendant's wrist with that colour.

To theextentthat it is germane I do accept the plaintiff's version ofthe telephonecallsandvisitsshemade after the procedure. Someshort time afterwards the defendant refunded the $200 feeto the plaintiff.I do not consider this to be a legally binding admissionofliabilityandwasnot invited to do so by Counsel.

Counsel for the defendant asserted that his client is entitled to averdict on the basis that the plaintiff was shown the colour that was to be applied, drew the line on her own lips, was informed "it's up to you but it does look better if you go along the line".

Counsel for the plaintiff asserts that:

1. Theplaintiff'sversionshouldbeaccepted.I have rejected this.

2. If(1)above is rejected, the plaintiff is entitled to a verdict for the reasons set out hereunder.

I set out those which I consider to be pertinent:

(a) Thedefendantwasnotbyreasonof her trainingand expertise competentin the tattooingtechnique to offer this service to members of the general public.

(b) Thedefendantfailedtoadvise the plaintiff as to the most desirable location of the line and the consequences of the defendant simply following the plaintiff's wishes.

(c) The defendant failed to offer any advice at all.

(d) The defendant in fact used the wrong colour.

(e) Thedefendantshould have provided the plaintiff with an hand held mirror or invited the plaintiff to examine the effects oftheprocedurein a mirror at various stages during the hour or so that the procedure took.

That the defendant owed a duty of care to the plaintiff is not in dispute.On any of the modern tests of negligence the duty would be found to exist.

The dutyis to take reasonable care.The standard that is to be appliedis thestandardof"anordinarily good and careful practitioner" Mahonv Osborne(1939)2K.B.14.The required standard of care is therefore the standard which would be exercised by a professional having that skill in all the circumstances of the case. (Whitehousev.JordanandAnor.(1980)1 ALLE.R.650 at 658.) Thestandardis that of the average practitioner of the class of which the defendant belongs or claims to belong.See also F. v. R. (1983) 33 S.A.S.R 189 at 190 per King C.J..

In applying the standard to the instant case I find that:

1. The defendant's exiguous training of an afternoon of some fairly indeterminate time in a beauty therapist's shop in Singapore did not entitle the defendant to set herself up as apersonreasonablycompetenttocarry outthe technique on the female citizens of Adelaide.

2. Ifindthatthedefendantdid not properly advise the plaintiff or advisetheplaintiff in any real sense at all. Theplaintiffinengaging theservicesofa professional beauticianwasentitled to expect that she would havebeengiventhebenefitofthatperson's professional advice. Unbeknowntotheplaintiff the defendant had little professional advice to offer because she wasnottrained.Bearinginmindthe critical consequences ofamistakeormisjudgmentin a tattoo applied to the plaintiff's face, one line of advice "it's up toyoubutitdoes look better if you go along the line" fell far short of the advice to which the plaintiff was entitled.Itisassertedthat I should draw the inference thateven if any further advice had been given the plaintiff would still have persevered.Given that the plaintiff wasundoubtedly nervous prior to the procedure and thedefendantknewofthatnervousness, I would certainly notbepreparedtodrawaninference that irrespective of the advice, the plaintiff would have gone ahead andthereforethelackofadvice had no causal connection with the plaintiff's damage.

3. The defendant also failed to properly advise the plaintiff in thatshedid notherselfdrawin a line.It was asserted thatMiss Coulter's practice is that of an over cautious therapist and is a counsel of perfection.In my view itisacounselofplaincommonsenseand is particularly apposite whenatattooedlineisto be applied outsidethelipline.I am well aware of such cases asPhillips v. William Whiteley Ltd (1938) 1 ALL E.R. 566 wherethestandardofcare of a jeweller in piercing ears was discussed. Even by the standards half a century ago that decision seems harsh. Nevertheless it is not inpointhere.One reason a customer patronisesa beauty therapist if she wants a tattoo of a lip liner, eye liner oreyebrow lineissurely in the expectation of receiving advice and counsel on the matter.If that were not so, one would presumably patronise a tattoo parlour in Hindley Street.

4. Asto the ink dye that was used, the defendant on her own admission did not know what it was.She did not know if it wasvegetableorsome other base.She relied upon some remarkfromthevendorinSingapore that it was "semipermanent". She did not know how long it lasted.It seems quite permanent now.The defendant did not take it upon herselftosatisfy herselfeitherastothe composition ofthedyeorwhetherthedye would be permanent -and that with regard to a procedure that was more or lessirreversible.Miss Coulter on the other hand, tookprecautions precisely because she was dealing with a permanent and irreversible dye or ink to be applied to theface.The defendant was virtually in a position that shewasdoingwhat the plaintiff wanted her to do without theplaintiff knowingwhatthelongterm consequences might be.I find that falls far short of an acceptable standard of "professional" conduct.

As tothe colour itself, it is not to the point that the plaintiff was informedthatthe colours available were black and brown.

The colourappliedwasallegedto be brown and it was wrongly described. It is not brown now.It did not look brown inthe photographs taken in early 1988.The only place it looked brown was in the bottle.The colour looks a bluish grey colour and it may well be acceptable for eye liners or eye brows but leaves a most peculiar effect when applied to the lip area.

Again, it is a matter where the plaintiff was entitled to receive advicefrom thedefendant,but because of the defendant's lackofexpertise she not only did not give that advice but was not in a position to give that advice.

5. The defendant conceded that the plaintiff was not handed a mirror during the procedure, but could have looked in one of two mirrors in the cubicle.In my view prudence would have dictated that the plaintiff be given a mirror.That she wasnotpointstothe defendant's general lack of experience and expertise in this area in December 1987.

I have therefore come to the conclusion that the defendant fell considerably shortofthe standard of care that she ought to have exercised tothis plaintiffinDecember1987.I find that the defendant was negligent.

Because Iacceptthedefendant's version of the plaintiff's actions in drawing the line where she did, the plaintiff must take some responsibility for the result.I find the plaintiff is guilty of contributorynegligence.She has partly been the author of her own misfortune.Iapportionliability 70%infavourof the plaintiff and 30% in favour of the defendant.

I now turn to damages.

The plaintiffisleftwith a noticeable tattoo line about a millimetre above andbelowtheliplineonherlips.It is unsightly and unusual.It is a constant source of embarrassment to the plaintiff.She is divorced and aged 45 and has a son who is a teenager. Whilstsheiswearing lipstick the line would not be noticeable becausethe line can be adequately concealed. However, when sheisnot wearing make-up, and I accept that there are many occasions around the house for example, or on some social occasions with the family where she would not wear make-up or indeed when she is at work and her make-up is wearing off, the tattoo line would be quite visible.Itis permanent.Although it was advertised as being "semipermanent"there is no indication that it will improve, and indeedthatistheopinionofDr. James Katsaros, plastic surgeon. Beforemeisa medical report from Dr. C.J. Schembri, psychiatrist andthereisnoevidencethattheplaintiffis suffering from a psychiatric disorder.

Before hermarriage, the plaintiff worked in light industrial enterprises. In more recent years, having reared her son, she has worked inaphotoshop,a delicatessen, both of which required constant contactwiththepublic. She currently works for her brother, thelicensee of the New Market Hotel, Port Adelaide, as a kitchenhand anddoingsomeserving.She has been receiving the supporting mother's pension and more latterly unemployment benefits.

Although shewasofferedfull-timeemploymentin 1988 she said contact with the public made her feel embarrassed.

I am not able to assign any figure for past and future economic loss. The plaintiff's work at the photo shop and at a delicatessen shows thatshecan work with the public.I am not persuaded that the plaintiff'semployment historyinrecent years has not been influenced (andquiteproperly) by considerations relating to the Commonwealth pensionandIam not persuaded that the unfortunate incident hasin any real sense been, and will be productive of any economic loss.

In myview,an appropriate award of damages for all heads of damage including painandsuffering,loss of enjoyment of life, disfigurement, any economic loss, past and future is $14,000.

The plaintiffistohave70%ofthat which is $9,800.I therefore proposeto enter a verdict in favour of the plaintiff in the sumof$9,800 andIwillhearcounsel on the question of interest and costs.

LATER IN COURT ON 14TH FEBRUARY 1992

In thismatteron the issue of negligence I find the verdict for the plaintiff.Ontheissueof contributory negligence I apportion liability 70% in favour of the plaintiff and 30% in favour of the defendant.

On theissueofdamagesIfindthe verdict in the sum of $14,000 before apportionment which will lead to a verdict in favour of the plaintiff $9,800 after apportionment.

I enterjudgmentinfavourof the plaintiff for the sum of $9,800.

Matter listed on Monday 17th February, 1992 at 9.15 am to hear argument about interest and costs.

LATER IN COURT ON 17TH FEBRUARY 1992

Upon hearingcounselfortheplaintiff and counsel for the defendant on the question of interest and costs I make the following orders by consent:

1. Therewillbeinterest in the sum of $245.I make that order pursuant to Section 35g(3) of the Act.

2. There will be no order as to costs.

There willbejudgmentfortheplaintiffforthe sum of $10,045.

$10,045.