Issue 3 - Whether the plaintiff was treated negligently
132In 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.
133On 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.
134The 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.
135In 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.
136The 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.
137In 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.
138If 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.
139An 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.
140In 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.
141One 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.
142Another 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.
143A 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."
144In 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.
145In 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.
146I do not consider that those historical events could be reasonably interpreted as having left no sub-dermal scarring of some kind. Given that the plaintiff had at least four other laser procedures before the subject treatment session on 1 July 2009, and that she also had some other laser facial procedures that were described as fraxellation treatment, I cannot, reasonably, accept the assumed basis of the plaintiff's res ipsa loquitur argument.
147On behalf of the plaintiff it was argued that the onus is on the defendant to disentangle or to demonstrate that the damage in question was caused by some argued underlying condition, in this analysis, the possible cumulative effects of the earlier treatments: Watts v Rake [1960] HCA 58; (1960) 180 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
148In my view, it is not necessary to undertake that analysis in this case because of the finding that the plaintiff had consented to the potential adverse risks from the treatment, which eventually materialised. In my view, that consent renders the Watts v Rake causation analysis superfluous in this case.
149The result of the foregoing analysis reveals the position that in order to succeed in her claim against the argued tortfeasor, the plaintiff must prove a relevant breach of the duty of care owed, and therefore establish that causally relevant negligence has occurred. That position requires that she articulate the argued scope or content of the duty of care, and to then demonstrate particular breaches of that duty, in satisfaction of the requirements of s 5B and s 5D of the CL Act.
150In my view, for the reasons that follow, none of those essential requirements have been satisfactorily established.
151On behalf of the plaintiff it was argued that the scope of the duty of care owed to her was similar to that owed by a doctor to a patient. In my view, that formulation is an overstatement of the duty owed as the centre was not a place where medical treatment was provided. However, the plaintiff was clearly owed a duty that reasonable care would be taken in the provision of information as to risks associated with the cosmetic treatment she was contemplating, as well as in the performance of the treatment she agreed to have.
152I find that the plaintiff was given appropriate information as to the risks of adverse outcomes from the treatment. I am satisfied that she was given this information at all stages of her treatment at the centre. For the reasons I have already identified, I have preferred the evidence of Mr Francis to that of the plaintiff concerning the provision of information as to possible risks from the treatment. I am also satisfied that the plaintiff was determined to pursue the treatment notwithstanding that years earlier, she had declined medical laser treatment. In respect of this treatment, she attended the centre with concerns over her nasolabial folds, jowls ands sagging skin. I find that from 2007, she was determined to have the treatments offered at the centre to address these cosmetic issues. I find that she has not made her case of claimed negligence concerning the provision of information.
153On the issue of whether the cosmetic treatment provided to the plaintiff had been performed negligently in any respect, I consider that the absence of expert evidence on that issue is a barrier to the success of the plaintiff's claim.
154Insofar as Dr Rea suggested that it would have been prudent to carry out a test on an inconspicuous area of skin before applying the treatment to the plaintiff's face, I find that evidence to be an insufficient basis upon which to find there has been a breach of a duty of care. This is because it has not been explained how the application of the laser treatment to the skin behind the ear would be indicative of whether an adverse facial skin reaction was likely to have been predictable. This is not a matter upon which a court is entitled to speculate. If there had been evidence making such a connection, it might have been a different matter. Even given the scenario of a behind the ear test, it still does not overcome the problem that the plaintiff had four such treatments to her face in the previous 17 months without evidencing such a reaction. It is therefore difficult to see how in those circumstances, without expert explanation, a test treatment behind an ear would have provided an indication of a likely adverse reaction on the face on the fifth such treatment.
155Furthermore, the terms of Dr Rea's suggestion do not amount to a requirement. The way I read his comment regarding a test, it was a hindsight suggestion.
156This then leaves the question of whether the treatment to the face on 1 July 2009 was administered negligently. Without the assistance provided by technical expert evidence, I am unable to draw such a conclusion on the balance of probabilities.
157Although the submission on behalf of the plaintiff suggests that I draw such a conclusion, I consider that there is a barrier to the acceptance of that submission. This is because, on a common sense analysis, there is an absence of an evidentiary explanation of the cumulative significance, if any, of the four earlier laser treatments to the plaintiff's face, and possibly others, on a full and correct history. The matter left in doubt and unexplained here is whether or not the plaintiff's facial tissues cumulatively treated by laser, were as a result, predisposed to developing the reaction seen in the plaintiff following the treatment on 1 July 2009. That is not a matter upon which inferences can be properly drawn without expert evidence. It is not an analysis I can ignore.
158In arriving at the foregoing conclusion, I have not overlooked the res ipsa loquitur submission made on behalf of the plaintiff made in reliance on the decision in Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; (2000) CLR 121. That decision makes clear that firstly, res ipsa loquitur ceases to operate once the cause of the harm was identified, and secondly, once the cause of the harm has been identified, this did not preclude a process of inferential reasoning to prove negligence. Those principles are well recognised.
159The difficulty in the path of success of the plaintiff's case in this instance is the appropriateness of drawing the suggested inferences.
160There is no room for doubt that the plaintiff's face was burnt by the treatment she had agreed to have. She was aware of the risk of such an outcome. I do not accept her evidence to the contrary. In those circumstances, the plaintiff must still show that the adverse outcome she has experienced was due to a departure from the required standard of care.
161Although it can be reasonably inferred that the burning of the plaintiff's face was as a result of the application of the laser, the plaintiff must still show that the temperature setting was inappropriate. That is not a proper matter for inference where the evidence of Mr Francis was that the temperature setting was the same as with the previous treatments undertaken by the plaintiff. In my view, in this case, that evidence cannot be rejected by a process of inference by reference to the burns, without a reasoned basis in the evidence. Something more is required. This is usually provided by expert evidence. On the state of the evidence, I see no proper basis for the inference sought on behalf of the plaintiff.
162The evidence here is that the treatment in question could potentially cause burning and facial scarring. When such adverse results accrue, these of themselves do not necessarily bespeak negligence where a mechanical or scientific process is being used. In light of the evidence that such a result is possible, this is not a case where the plaintiff is able to show that her injury would not have occurred without negligence so as to infer that negligence was the cause of her injury: Schellenberg v Tunnel Holdings Pty Limited, at [25], page 134.
163Accordingly, I find that the plaintiff has not made out a case in negligence.