in the high court of justice queen's bench division · with a gap between the thighs, and more...

Neutral Citation Number: [2017] EWHC 1661 (QB)Case No: HQ15C01088

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: Monday, 17 th July 2017

Before :

His Honour Judge Graham Wood QC, sitting as a Judge of the High Court

- - - - - - - - - - - - - - - - - - - - -Between :

TRACEY GILES Claimant - and -

DR ALEXANDRA CHAMBERS Defendant

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Hannah Godfrey (instructed by Kingsley Napley Solicitors) for the ClaimantSimon Butler (instructed by Gunner Cooke LLP Solicitors) for the Defendant

Hearing dates: 28,29,30 and 31 March, 16 &17 May- - - - - - - - - - - - - - - - - - - - -

Judgment Approved

Approved Judgment Tracey Giles v Dr Alexandra ChambersHH Judge Graham Wood QC

His Honour Judge Graham Wood QC :

Introduction

1. This court is concerned with a claim for damages in relation to alleged negligentcosmetic surgery which the Claimant, Tracey Giles, underwent at the private clinic of theDefendant, Dr Alexandra Chambers, in August 2012 for the VASER liposuction removal offat from her thighs and buttocks. Liability, including breach of duty and causation are indispute, as is the quantum of damages in relation to both past and future loss. The claim isbrought in both contract and tort, although the duties owed in both respects are analogous,and it is accepted that the court approaches the question of breach on entirely the same basis.

2. At the outset of the case, an issue arose as to the entitlement of the Defendant to relyupon expert evidence. The earlier case management direction of the Master provided for thereliance by both parties on a plastic surgeon as an expert. Whilst the Defendant had indicatedto the Claimant the instruction of an expert in such a discipline, when a report was eventuallyprovided, it came from a cosmetic surgeon, essentially a medical practitioner who specialisesin the provision of cosmetic and aesthetic treatments, Dr Lucy Glancey. “Cosmetic surgery”is not yet recognised as a regulated branch of medicine by the General Medical Council. TheClaimant’s solicitors did not initially object to the engagement of Dr Glancey with their owninstructed expert, Mr Nishikawa, who is a plastic surgeon, and a joint report wascommissioned identifying the extent of their disagreement on the main issues in the case.Only a few weeks before the trial, however, after further enquiry by the Claimant’s solicitors,detailed objections to the admissibility of this evidence were raised, not only becausepermission had not been given for a cosmetic surgeon/medical practitioner, but also becausethere appeared to be a professional relationship between Dr Glancey and the Defendant DrChambers. They are both active members of BABS, the British Association of BodySculpting, and appear to work often from the same premises.

3. The respective submissions of both parties through counsel were provided on the expertevidence admissibility issue, and although no concessions were made on behalf of theClaimant, the sensible approach was adopted, in view of the potential disruption for the trialtimetable, of allowing the evidence of Dr Glancey to be heard and challenged (with thepotential conflicts of interest explored) and the postponement of the argument to theconclusion of the case.

4. As it transpired, because the other evidence took longer than expected, Dr Glancey wasunavailable for attending the intended final day of the hearing (Friday) and a further two dayswas arranged for the convenience of counsel and the court. Otherwise, evidence andsubmissions were heard over six days, and I reserved my judgment which is now provided.

Factual Background

5. I shall deal first with the background circumstances, and the uncontroversial facts,including the aftermath of the procedure. I shall also identify the discrete factual disputes,before addressing the evidence relevant to those disputes.


6. The Claimant, who is 52 years of age, has spent most of her life in the beautyprofession qualifying as a beauty therapist many years ago, and eventually having her ownbusiness in London. She specialises in bespoke treatment involving permanent or tattooedmake up and has established a national reputation in this field, which has exposed her tosome media publicity. She has a profile where physical appearance and attractiveness is ofgreat subjective importance, and over the years this has led to the Claimant undergoing anumber of cosmetic treatments to the face and body, including breast augmentation,rhinoplasty, blepharoplasty, liposuction to the lower limbs and tummy, and a facelift. She hadalso maintained a level of physical fitness, and indeed practised in and instructed yoga andfitness training. The Claimant’s previous treatments had been successful, save for anabdominoplasty which had led to a severe wound infection.

7. For a large part of her recent adult life, the Claimant has had mental health issuescentred around depression and anxiety which have required pharmacological andpsychological therapies, including treatment in a private hospital (the Priory). The mentalhealth history is relevant to the claim for pain, suffering and loss of amenity, because it isalleged that the treatment at the hands of the Defendant led to a significant adjustmentdisorder and exacerbation of pre-existing depressive state. It is explored in more detail laterin this judgment. Further, whilst there is no suggestion that the Claimant had a form of bodydysmorphia, or that previous cosmetic procedures and the chosen VASER liposuction wereconsequential upon mental ill-health misjudgement, the psychiatric history was the subject ofextensive questioning by counsel because of her potential vulnerability and because it is theDefendant’s case that she was completely unaware of this history. An issue arises as towhether it should have been disclosed by the Claimant, or explored in more detail by theDefendant.

8. The Defendant and the Claimant were known to each other, as their clinics were inclose proximity in Harley Street, and they had previously been introduced. The Claimantknew somebody who had undergone VASER liposuction with the Defendant which had beenvery successful, and she was interested in some further treatment for herself. She had begunto notice some cellulite on her legs and thighs, as well as her upper arms, and althoughconfident when wearing a bikini, she desired what she perceived as a more feminine lookwith a gap between the thighs, and more slender legs. The VASER liposuction was a fairlynew procedure at which the Defendant was at the forefront in terms of pioneering and wasconsidered less invasive than traditional liposuction. VASER is short for vibrationamplification of sound, energy and resonance and involves the application of ultrasoundenergy to break down fat cells which are subsequently aspirated. Traditional liposuction usesa suction method without breaking down fat cells initially, and is a single process, as opposedto the twofold process involved with VASER.

9. The first consultation, which was conducted without charge, took place on 26 th January2012 in the Defendant’s consulting room. There was extensive discussion about the benefitsof VASER which the Defendant herself had undergone successfully, although she told theClaimant that there would be painful consequences in the aftermath. There is a significantdispute about the desired outcome which was communicated by the Claimant and which Ishall deal with below, in particular whether it was to involve modest contouring andreshaping of the legs and buttocks or a more dramatic high definition fat removal. TheClaimant was shown images from case studies, when the desired outcome was discussed.


10. After this discussion the Claimant was taken to another room where the fat wasmeasured in the areas which she desired to be treated, by means of an ultrasound scan. TheDefendant had a clinical assistant, Victoria Virtosu, who recorded much of the informationincluding the physical and ultrasound measurements on the available records, and theDefendant herself completed her clinical consultation notes on her computer. Although therewas a field available for free text, insofar as there are shortcomings and inaccuracies, whichwill be explored later, the Defendant accepted that for many consultations because she was sobusy, she would cut and paste from other similar cases.

11. The Defendant provided a price for the Claimant in relation to the lower limb aspectonly. The Claimant did not believe that she could afford to have her arms treated at the sametime, and decided to wait until her legs and buttocks were treated at some point. An option ofthe application of gold threads to provide more elasticity to the skin was discussed, butdeclined for the time being by the Claimant. The total cost was £7027.50 and included on adocument with some handwritten endorsements as to alternative costs for arms and goldthread. There is a dispute as to whether this document was supplied. (Bundle 2 at page 682)

12. Following the consultation in January the Claimant went away to think about it. In themeantime, she underwent some Botox treatment with the Defendant which was entirelysatisfactory, and this enabled her to have confidence in the Defendant and her clinic. Shedecided to go ahead, but before the procedure was booked in, she was advised by theDefendant, with whom she kept in regular touch, to take some iron tablets, because hertransferrin levels were low. The Claimant had not previously suffered from anaemia, althoughshe did have a congenital condition known as telectangasia.

13. The procedure took place on 20th August 2012. Prior to the procedure, there was afurther consultation which was recorded on video, in which the Claimant’s consent for theVASER liposuction was obtained. During the discussion, the Claimant agreed that the desiredoutcome was “more toned up and slender looking thighs and low pole of buttock”. It was notintended that the Claimant should stay overnight at the clinic, which in any event had limitedbed facilities for overnight care, although the Defendant did have an arrangement with a localhospital, the Wellington. Because of the amount of fat which was being removed, and thelength of the procedure, anaesthesia was required, and this was administered by ananaesthetist booked in, in the form of sedation through a cocktail of drugs. The Claimant wasalso catheterised.

14. The procedure lasted several hours, at the end of which it was recorded that 6170 ml offat had been extracted. It is disputed that this is an accurate record. Because of theanaesthesia, the Claimant was taken to a recovery area and monitored. At this point theClaimant felt dreadful, in pain and nauseous, and received oxygen by mask and painkillers.She was advised by the Defendant and her assistant that she was better off going home, andwas put in a taxi although her legs were bleeding as a result of the procedure.

15. She was looked after overnight by her daughter, but the following day had to attend theDefendant’s clinic, as arranged, for lymphatic drainage by massage, and the application ofcompression clothing to her lower limbs. The Claimant was in very great discomfortthroughout this procedure despite the administration of analgesic and the procedure wasrepeated over two further days.


16. On 25th August, when the Claimant was on her own, she felt very unwell indeed, withdizziness, and diarrhoea, and she had to call her daughter to get help in summoning anambulance. She was admitted to the Accident and Emergency Department at West MiddlesexHospital. At this time, the Claimant had also spoken to the Defendant who had advised her tostay at home, and to attend the clinic the following day.

17. At the West Middlesex Hospital, the Claimant was advised that she might be having areaction to the antibiotics which had been administered, or some post-operative complication.She was given fluids and painkillers and discharged, although the doctor at the hospital alsospoke to the Defendant over the telephone to understand the procedure which the Claimanthad undergone.

18. She saw the Defendant at her clinic over several further days. In addition to lymphaticdrainage and monitoring, the Claimant also had the aspiration of what were believed to beseromas, that is subcutaneous fluid accumulations.

19. On 4th September, when being treated at the clinic, the Claimant was found to have verylow haemoglobin levels by the Defendant, and she was advised to check in at the Chelsea andWestminster Hospital for a blood transfusion on the following day. However, the Claimantfelt so poorly, that she went to the hospital that evening by taxi. She was treated immediatelywith transfusion, and there was a suspicion that she might have compartment syndrome. TheClaimant was still wearing the compression garments which she had been advised to do bythe Defendant, and these were cut off and removed. On the following day, the Defendantattended at the hospital. There is a dispute as to what transpired between the two, although itappears to be accepted that the Defendant was keen to have the Claimant back at her clinicfor further lymphatic massage, and to attempt to drain a significant seroma on the lateralaspect of the right thigh, whereas the hospital plastic surgery team were advocating a moreconservative approach. The Claimant also underwent an MRI scan.

20. She was discharged from Chelsea and Westminster, and attended at the Defendant’sclinic for further massage, which she found to be very painful. By this point, the Claimanthad concerns about the procedure, and decided to seek the advice of a plastic surgeon sheknew, Mr Jesper Sorensen. Mr Sorensen was somewhat critical of the treatment describing itas “severe damage to the subcutaneous tissues in the treated areas throughout her legs” andtook some photographs. He also aspirated 60ml of seroma fluid. The Claimant saw MrSorensen the following week, and underwent further aspiration. Between these twoappointments the Claimant attended once more on the Defendant on 13 th September for somefurther lymphatic massage, and on 18th September saw her assistant Victoria Virtosu.

21. The final appointment with the Defendant was on 5th October 2012. This was thedischarge attendance, but it was the subject of a video recording of which the Claimant wasunaware at the time. By now she was feeling better, and reasonably happy with theappearance of her legs, despite a degree of asymmetry. In the discussion with Defendant DrChambers, she expressed her satisfaction with the procedure. The Defendant informed theClaimant that she had removed “just over 6 litres” of fat from the legs. Photographs were alsotaken by the Defendant. At the end of the discussion, the Claimant asked the Defendant forsome further Botox treatment, which was carried out in a separate room.

22. It is agreed that the final outcome of the surgery would not have been apparent at thatappointment, but established six months post treatment. In fact, over the following few


months the Claimant began to notice a far different appearance to her legs and buttocks thanthat which had been noted at the October appointment. Her legs appeared to subside, as ifswelling was going down, and became uneven, bumpy and mottled, with impressions inplaces. She could feel virtually no fat under the skin, but just muscle and bone, and there wasan obvious asymmetry in her hips. She had maintained her body weight throughout thisperiod.

23. The Claimant decided to seek the advice of others, when it was clear that she was notachieving the desired outcome and the appearance of her legs was so dreadful. In addition toMr Sorensen she consulted Mr Fatah, and Mr Inglefield, both of whom were plastic surgeons.Their reports have been provided, but are not relied upon as expert evidence as such, simplyto indicate the present condition and appearance of the time of their respective examinations.In January 2013, Mr Inglefield described a “very poor appearance” and offered some fatgrafting procedures followed by scar release, which might have improved her appearance. MrFatah provided a further second opinion in February, expressing similar views, and describesthe natural body contour between hip and thighs as being totally distorted, giving an“unnatural and unfeminine body contour”. He offered to carry out similar procedures of fatreplacement at a cost of £5000 approximately per procedure.

24. Thus by the early part of 2013, the Claimant was extremely dissatisfied with herappearance and sought legal advice with a view to commencing proceedings. In addition, sheembarked upon a program of fat grafting through a further plastic surgeon in whom she hadconfidence, Mr Mallucci.

25. The consequences for the Claimant of the alleged botched and/or ill-advised procedureat the hands of the Defendant are dealt with later in this judgment under the heading of“quantum”.

Photographs

26. The court has been supplied with a number of photographs depicting the lower part ofthe Claimant’s body, as well as some pre-surgery photographs taken on holiday showing theClaimant in a bikini, with her daughter. The photographs have been helpfully summarised ina schedule appended to the Claimant’s skeleton argument. The pictures cover the periodimmediately before the surgery (20th August 2012) taken by the Defendant, through the laterpart of the year in the immediate post-surgery period (taken by Mr Sorensen), those taken bythe Defendant on the discharge appointment (5th October 2012), those taken by Mr Nishikawathe Claimant’s expert in early 2014, and those taken by Mr Mallucci, the current treatingplastic surgeon. It has been unnecessary for this court to view the cosmetic results for itself,and it is agreed that the most recent photographs represent the final outcome, before anyrevision surgery, an outcome which is accepted by the Defendant to have been poor. (In herevidence she described it as “not an aesthetically pleasing result which she had neverpreviously encountered”) However, as will be seen, the Defendant will contend that themottled and undulating nature of the final outcome is a non-negligent consequence of thehigh definition, highly contoured or sculptured muscles look which the Claimant hadrequested.


Issues

27. In relation to liability, insofar as it is now accepted that the position depicted in thephotographs from 2014 onwards represents the post-operative outcome of the surgery, itseems to me that there are three principal liability issues which the court must address.

(1) What type of cosmetic surgery to her legs had the Claimant requested andcontracted for with the Defendant? Was it the high definition sculptured look asthe Defendant contends, or was it a more modest removal of cellulose tissue tocreate a feminine look, as the Claimant contends? If this issue is resolved infavour of the Claimant it may be immaterial whether there were any other failuresin the cosmetic process.

(2) Was the Defendant negligent and/or in breach of duty in the way in which sheperformed the cosmetic surgery?

(3) If so, has the final outcome been caused or contributed to by any such negligentfailures?

Facts in dispute

28. Whilst there are a number of evidential disagreements between the parties, it is onlynecessary to address those which are relevant to the issues which I have to decide. There aretwo particular areas:

(i) The desired outcome (ii) The amount of fat aspirated and the actual outcome

The desired outcome

29. The Defendant has provided a number of documents which relate to her initialconsultation with the Claimant. Most of these were not seen by the Claimant beforedisclosure; it is not suggested that they were handed to her at the time, but they provide ahelpful indication of the procedures which were in place.

30. The patient assessment form at page 677 indicates that the areas to be treated werearms, thighs and buttocks. On the following page (678), in relation to the size, there is adiagram showing the inner thighs as shaded to the front, and a general shaded area at theback, from the top of the buttocks down the thighs to the area of the knees. Dr Chambers haswritten on this document in handwriting: 5l (litres) thighs buttocks, 1.6 l arms. There arefurther pages relating to checkboxes for skin elasticity and soft tissue asymmetry, and at page681 a table of the patient’s expectations, where the Claimant is graded as “good” withrealistic expectations and good understanding of the procedure. The lowest grade is “verypoor suitability” where screening may be required for body dysmorphia.

31. The most important page appears to be that headed “total cost”. There is a significantdispute as to whether this was ever handed to the Claimant. However, the only typed cost


relates to the inner thighs, where the liposuction type is described as “general”, rather thanhigh definition. Insofar as it is the Defendant’s case that it had always been agreed that theClaimant would undergo high definition contouring to expose the muscles in the thighs andbuttocks, her explanation for the word “general” which would suggest a softer contouring asthe Claimant contends, is that this was a mistake by her assistant completing the drop downmenu on the computer program. The court has not heard any evidence from the Defendant’sassistant, Victoria Virtuso.

32. The estimated fat volume to be removed is 5 litres, but insofar as this represented themaximum fat volume as a result of the ultrasound, it was suggested to the Defendant that itshould have been 4.5 litres, on the basis that the practice was to leave 10% as a layer of fat. Ithas always been the Claimant’s case that following the VASER treatment, the fat layers weredenuded.

33. Also important is the Defendant’s consultation, at page 683. The Defendant admitted,as indicated, to a degree of cutting and pasting. If it represents the extent of the discussionbetween the parties, it might have been expected that it would be informative in terms ofdesired outcome. In relation to the buttocks, posterior, inner thighs and arms, the Claimant isdescribed as “very fit and eats well, but seems to accumulate fatty deposits in these locationsand cannot shift them.” The note goes on to read: “adipose tissue moderate only excess andcellulite – buttocks. Posterior thighs and inner thighs – mild adipose tissue excess. Skinseems to be tto [sic] thin.”

34. This note makes no reference to the amount of fat to be removed. Otherwise theDefendant’s case on her evidence is clear: she insists that the Claimant wanted to see all theactive muscles exposed, actually using these words, and whilst not using the description“high definition”, was clearly referring to this, and it would have required the removal of atleast 4.5 litres of fat to leave a minimal residual fat layer. HD was a procedure whichremoved 90% of fat in the area being treated to give an extreme sculptured appearance, andshe agreed that it involved removing the fat circumferentially. The Defendant also states thatshe did not regard this as an attractive look in women and specifically advised the Claimantthat she did not need such treatment, but the Claimant was adamant. It is unfortunate thatthere is no note to this effect.

35. The Defendant explained to the court that when she was treating a patient and offeringcosmetic procedures she would always be guided by what it was the patient wanted.

36. The Claimant’s evidence in relation to the initial consultation is that she only wanted amodest amount of fat removing principally to her inner thighs, to obtain a more femininelook, with a gap at the top of the thighs. She agrees that she looked at some case studies, thatis photographs of other patients who had been treated, but denies that she selected a muscledlook, that is with the muscles exposed and substantial amounts of fat removed, suggestive ofbodybuilding. She wanted a natural look. In relation to the quantity of fat to be removed, theClaimant denies having any discussion about volume, nor would she have appreciated thedifference if figures had been provided. As far as the photographs are concerned, she can onlyrecall being shown pictures of women who were larger than her, and they were provided inboth before and after form. No photographs have been produced by the Defendant eitherelectronically or physically, although significant reliance is placed upon the fact that theClaimant had identified the high definition appearance.


37. At the resumed hearing, a document which had not previously been included in thedisclosure list, although referred to in the report of Dr Glancey, was made available to thecourt. This was described as “patient complaint analysis” and appears to have been aninternal document addressed by Dr Chambers when the complaint was received from theClaimant on 20th March 2013. It is significant, the Claimant suggests through counsel, in thatit does not specifically refer to an understanding on the part of the Defendant that the muscledappearance was being requested, so much as “improving the contours of the posterior andinner thighs, arms and lower pole of buttocks”. It also refers to apparent advice given by DrChambers that the Claimant should have VASER liposuction all around her thighs to ensurebetter skin retraction. This, of course, is the circumferential treatment necessary for the moredetailed and extensive high definition, but the inference from this document appears to bethat the advice was coming from the Defendant rather than an insistence against advice by theClaimant.

38. In the same document (page 283) there is reference to an attendance at the Defendant’sclinic for Botox treatment, sometime in June 2012, when the “patient” that is the Claimant,decided she wanted to “proceed with only the laser liposuction (not the gold threads) toimprove the muscular definition of her thighs and lower buttocks.” This would be moresuggestive of high definition, but the point is made, perhaps validly, that there is nocontemporaneous record of such a communication, that this is a self-serving document for theDefendant several months after the procedure when a complaint was being made, andbecause the document was produced so late in the day there was no opportunity to cross-examine the Defendant on it.

39. The question of the desired outcome cropped up again at the consent procedure on theday of the operation. Unfortunately, there is no specific note addressing the Claimant’srequirements although a transcript of the video recorded interview has been provided. It is atpage 155 (B) in bundle 5, and the relevant section comes near the beginning of the interview.There is a conversation about the goal for the procedure, and Dr Chambers says

“in our discussion I understand that you would like to get moretoned up and slender looking thighs…”

In her evidence the Defendant interpreted this as amounting to a discussion about exposingmuscles, whereas the Claimant agreed she wanted some toning and more slender thighs, butnothing near the high definition which was actually undertaken.

40. There does not appear to be any further discussion about goals, targets or the amount offat to be removed, although there is some talk about the procedure involved.

41. Insofar as it may be relevant, reference has been made to the Claimant’s pleading inrelation to the desired outcome, in which it is asserted that she sought “a natural-lookingcosmetic improvement that would make her legs look smoother and more natural, improvethe contour, and remove the cellulite from problem areas”. The admission of this (paragraph16) in the defence is relied upon.

The amount of fat removed

40. The starting point, once again, is the Defendant’s records. I have referred above to theendorsements on the initial consultation notes and the reference to 5 litres. There are tworelevant pages (732 to 733 in volume 2). They are entitled Liposuction datasheet and set out


in tabular form, allowing for infiltration of fluid amounts at different intervals during theoperation of the VASER probe with associated calculations of the fat removed. The variousboxes are filled in with handwriting, starting with the left thigh, proceeding to the right thighand then the buttocks. The total volume of fat removed is described as 6170 ml. There is noother documentation emanating from the Defendant’s records but it is the Claimant’sevidence that that she was told by the Defendant that 6 litres had been removed, and this isrecorded as her account in subsequent hospital records when information is being given aboutthe procedure.

41. A photograph was taken by the Defendant shortly after the procedure, which shows sixcanisters of a dark amber coloured fluid which is paler in the top section compared to thebottom. The Claimant recalls being shown these immediately after the procedure although itis apparent that she was not in a very fit state at the time. Her account is of a descriptionbeing provided by the Defendant that the fat kept “coming and coming”, and that theprocedure had taken longer than expected. The Claimant also recalled that on the day of thedischarge there had been a discussion between her and the Defendant while some Botoxtreatment was being administered, in which the Defendant pointed out that she was pleasedthat the Claimant was happy with the result, because she believed for a while that she hadremoved “too much fat”.

42. The Defendant told the court that she could not remember whether she had mentioned 6litres to the Claimant after the procedure, but agrees that the record makes reference to 6litres. If that related to 6 litres of fat, it is incorrect, because it included blood and squashedcells contained within the aspirate fluid, that is the fluid introduced during the procedure. Shealso accepted that in the video recorded consultation on discharge, she said that she hadremoved “just over 6 litres” by reference to the fat calculation, yet she is adamant that only4.5 litres was removed, and refers to the photographic evidence, including the canisters.

The expert evidence

Mr Nishikawa

43. Mr Nishikawa on behalf of the Claimant is an eminent and very experienced plasticsurgeon with an impressive CV. His current specialty is in cranio-facial deformities andgeneral plastic surgery, particularly in paediatrics, and although he has had experience in thepast in all modalities of liposuction, including VASER liposuction, which he pioneered, heaccepts that he has never become involved in the practice of VASER. He believes it requires agreat degree of skill and judgment to perform properly, although he is knowledgeable aboutthe procedure.

44. His first criticism of the Defendant relates to the decision to remove such a substantialvolume of fat, or to assess the Claimant as requiring major liposuction. Whilst he is not in aposition to comment as to whether high-definition was specifically requested by theClaimant, nevertheless he believes that the paramount responsibility of the doctor is to act inthe patient’s best interests, and even if it was 4.5 litres of fat actually removed, as opposed tothe 6.17 litres indicated in the records, this was far too much, and likely to lead to theskeletonising of the leg. Thus, it was creating an abnormal result, and he did not believe thatthere was any doctor who would have proceeded in this manner even if a request had beenmade. His own assessment of the Claimant from the photographs taken before the treatment,was that she only required minor to moderate liposuction. Even if the intended outcome had


been to produce contoured muscles, the post-operative appearance could only be described asasymmetric, cobblestoned and deformed.

45. In relation to the use of the ultrasound machine to measure fat levels, and to determinethe amount of fat to be removed, he believes that this represents a lack of understanding ofthe aesthetics of liposuction. It over emphasises a volumetric endpoint rather than aestheticappearance. Further, it was not sufficiently accurate especially when it was being used todetermine an average layer of fat. It had no three-dimensional element.

46. In relation to the procedure itself, whilst he no longer criticises the amount ofanaesthetic used, or the general manner and performance, nevertheless he is highly critical ofthe excess fat removal itself, which involved a substantial use of the VASER tool over theperiod of the procedure. In the course of the joint report he developed this feature as beingimplicated in the creation of significant and extensive seromas, which he believed might havebeen thermal-type injuries. In his evidence to the court, he expanded on such a theory,accepting that seromas were a known risk of this type of procedure, but here that they weremore likely to be caused by burning from inside out, because of the excited molecular activitythrough prolonged use of the tool. Thus, rather than being a simple collection of extracellularfluid, which was the traditional seroma, these were more likely to have comprised transudatesfrom an inflammatory reaction, that is including a collection of blood. Their size, the painassociated with them, and the subsequent anaemia were all consistent with such a theory. Hedid not accept that seromas, particularly those which were of the variety likely to have beenexperienced here, represented an inherent risk of the procedure. In all the years that he hadbeen carrying out related procedures he had never had the need to carry out a bloodtransfusion, and the very low haemoglobin level here was notable, and the consequence ofaggressive and extensive fat removal.

47. He addressed and dismissed the suggestion that the “seromas” were caused by a failureto use compression garments in the aftermath of the procedure. Even if the Claimant had beennon-compliant with wearing such comments, it would have been impossible to put them onover the excessive swelling caused by these substantial seromas.

48. According to Mr Nishikawa, it was the aggressive and prolonged use of the VASERtool which led to the uneven removal of fat, and damage to the tissues, with the eventualresult that there was virtually no fat at all subcutaneously, explaining the cobblestoned anddeformed appearance. In fact, as far as the final result was concerned, he was of the opinionthat the discolouration and blueish colour was muscle fascia visible through the tight and thinskin layer. Further, the fibrosis, or scar tissue underlying the skin was a highly unusualconsequence of a liposuction procedure.

Dr Glancey

49. Like the Defendant, Dr Chambers, Dr Glancey has a background in general medicaltraining only, and has no plastic surgery qualification. She qualified in Bulgaria andundertook some work in plastic and reconstructive surgery there (seemingly without surgicalqualification) before she came to the United Kingdom where she continued her career withbasic surgical training (attaining MRCS status) and thereafter obtaining a combined researchand practice post in orthopaedics. She left the NHS in 2002 to practise in cosmetic surgery.She is now based in Essex, although she occasionally practises from London, where she has aroom leased from the Defendant in Wimpole Street. Together with the Defendant, she is one


of the founder members of the British Association of Body Sculpting (BABS), where she isassigned the responsibility as the head of clinical governance.

50. Although the curriculum vitae provided with the report is relatively brief Dr Glanceytold the court that she had a fuller version which is sometimes used. She had not previouslygiven evidence as an expert witness in court, and accepted that she had not been trained as anexpert, nor did she profess to have any expertise other than that which she had derived fromthe experience of carrying out numerous procedures involving VASER liposuction. It isapparent that she had performed fewer procedures than the Defendant, but this did not meanthat she was inexperienced. There were international experts renowned in the use of VASER,but it had not been appropriate to use them in this case.

51. Dr Glancey was taken to her website, which did not include any reference to highdefinition VASER liposuction, although approximately 20% of the cases involved this work.The website was in the process of being updated. She agreed that most of her patients wouldnot be attracted to high definition, particularly because of the demographics where herpractice was based, and where the majority demand was for debulking and mid definition.

52. Dr Glancey was asked about BABS and the extent to which it brought her into contactwith the Defendant. She accepted that there were annual board meetings, and she wouldoccasionally bump into the Defendant, but mainly they communicated by email. BABS hadbeen formed from an original laser user group which now had an interest in VASER throughevolution. Dr Glancey disagreed that BABS was fringe. She was not aware of Dr Hamlet’sprevious involvement. She had not discussed the content of the report at any stage with theDefendant, save when in meetings with the Defendant solicitor. Dr Glancey did not acceptthat she had failed to disclose conflicts of interest, because she regarded her relationship withthe Defendant as nothing other than professional, even though a rent was paid and she servedon the same board. Dr Glancey also rejected the suggestion that BABS was a vehicle forlegitimising practices. The practices endorsed by BABS were based upon worldwide peer-reviewed papers.

53. Thus Dr Glancey challenged any suggestion of her lack of ability to act as an expert inthis case. As far as her opinion is concerned, in her initial report she based her assessment onan understanding of the Defendant’s case that the Claimant had sought high definitionVASER liposuction because she wanted highly defined body contours with muscles exposed.The conclusion was that based on this requested treatment the Defendant used an entirelyappropriate gold standard method both preoperatively for the purposes of assessing theamount of fat to be removed, perioperatively when removing the agreed amount of fat, being4.5 litres on a circumferential basis, and post-operatively when providing after-care in therecovery period. The seromas which developed and the anaemia were complications of thesurgery, and in any event, could be associated with the failure to wear compression garmentsover the correct period to enable skin retraction.

54. It is fair to say that in her report provided (apparently in April 2016 although the letterof instruction does not appear to have gone out until May 2016), which presupposed thathigh-definition surgery had been requested and the Claimant’s wishes had been compliedwith, she did not address the alternative case advanced by the Claimant namely whether therehad been a substandard level of care in relation to excessive fat removal, overaggressive useof the VASER probe leading to excessive seroma development and possible thermal injury,the measurement of fat levels by ultrasound as an adequate procedure, and the failure to leave


a sufficient fat level subcutaneously, instead adopting a vague and unsupported rule of thumbthat 10% was appropriate.

55. She engaged with Mr Nishikawa on some of these issues in the joint report. Inparticular, she disputed that ultrasound measurements were formulaic, contending that incombination with a qualitative approach of checking by clinical assessment and feel asignificantly improved measurement could be made. As far as the leaving of 10 to 15% fatlayer is concerned, she advised that this was entirely in accordance with the kind ofliposuction requested, noting that bodybuilders in competition would typically have 8% offat. In relation to the amount of fat removed during the procedure, she was satisfied that itwas much lower than that erroneously indicated in the records of 6.17 litres, after allowingfor the amount of fluid that was infused, and stated that the 4.5 litres, which was the amountrequired to achieve the objectives sought by the Claimant, was removed.

56. Dr Glancey was cross-examined at some length by Ms Godfrey counsel in relation toher expressed opinions subject to the Claimant’s reserved position that she was not anappropriate expert to give evidence in this case.

57. She accepted that the risks associated with high-definition VASER liposuction weregreater in the sense that they were more frequently encountered, although they were the samerisks which might arise for a debulking procedure. If this had been a debulking, she wouldhave expected 50% of fat to be left behind, and although debulking could be circumferential,for the most part it would be localised. There were no references to high definition in thenotes, but it was acceptable to use lay terms when there were discussions about the amountthat been removed. Dr Glancey agreed that there were errors in the record, particularly inrelation to the description of general VASER liposuction as opposed to high-definition. Shedid not agree that a typical candidate for high-definition would be a sporty person but it isrelevant that the Claimant was a fitness instructor. She was satisfied that the reference to“more toned up and slender looking thighs” whilst perhaps insufficient for the consentingprocess, was sufficient for the purposes of understanding that high-definition was beingrequested.

58. In Dr Glancey’s opinion, the Claimant obtained the outcome which she had requested,and there was a satisfactory appearance on 5th October, even though there was subsequentdeterioration. She agreed that it took six months for the final results to become apparent,although in March 2014 there were clear deformities and it was not an acceptable muscularhigh-definition look, nor was it aesthetically pleasing. She had seen a couple of examples ofthis procedure failure previously in conferences, but not in clinical practice.

59. Dr Glancey was questioned about the use of ultrasound, which she insisted was a bettermethod than the naked eye or the use of callipers based upon worldwide practice, andproduced more accurate results. In relation to the measurements which were produced andthe documentation examined, Dr Glancey agreed that there was no evidence to support acontinuous or circumferential layer of fat, but this was a reasonable assumption; threeseparate areas of the thigh had been measured and 10% of the total fat originally estimatedwas a reasonable amount to leave. She did not accept and Mr Sorensen must necessarily havebeen accurate in concluding in his examination in September 2012 that muscle was adheringto skin, because there would have been swelling in the surroundings at that time.


60. As far as the seromas were concerned, she accepted that the very large 30 centimetreseroma was unusual, but in high definition VASER surgery there was a high percentage ofoccurrence.

The psychiatric evidence

61. I deal with this under a discrete and separate heading, because it has a relevance to bothliability and quantum.

62. The psychiatric opinion was provided by Dr John Meehan, a consultant psychiatristwith very many years of experience of both forensic and clinical psychiatry. He firstexamined the Claimant in March 2014 with a view to considering the psychiatric andpsychological consequences of the alleged negligent treatment, as well as addressing theClaimant’s previous mental health history. He had available to him the Claimant’s GPrecords, general hospital records, and the notes from the Priory Hospital where she had beentreated before and after the cosmetic surgery.

63. Dr Meehan described the Claimant as having had a long-standing history of recurrentdepression and anxiety. There had been a difficult childhood, with her parents having adysfunctional relationship, she had been bullied at school, and had an eating disorder.Although she had received treatment for her depression for much of her adult life, she hadcoped, and was functioning as evidenced by the establishment of a successful beauty andcosmetic business. He noted from the records that there had previously been a provisionaldiagnosis of bipolar spectrum disorder with mixed anxiety and depression, although he didnot accept that it was conventional bipolar (previously known as manic depression) butbipolar II which was significantly less debilitating, involving occasional periods of low moodwith mild euphoria or euthymia when coming out of depression. She was certainly vulnerableto further episodes of depression prior to the treatment. He regarded her as one of life’s“doers” notwithstanding subclinical depression, and her activities, as well as some of thecosmetic treatment she underwent, were designed to improve her self-esteem. He acceptedthat she was still taking medication at the time of the relevant procedure in August 2012.

64. A reference was made to an exchange of emails (bundle 4 page 633) in which theClaimant had been in discussion with her then treating psychiatrist, Dr Collins in the periodimmediately before the cosmetic surgery, about iron tablets, and the way in which there mayhave been interaction with the other drugs which she was taking, including dosulepin. Shealso wanted to know whether this should be declared to the Defendant, or the anaesthetist andwhether she should come off the antidepressant. In the course of his reply, Dr Collins hadsuggested that if she did not want to discuss her mental health issues with the anaesthetist,she could always say that the medication was taken to help with migraine, but it wasunnecessary to discontinue it. Dr Meehan did not interpret this email as suggesting that thetreating psychiatrist was advising non-disclosure to the anaesthetist. He accepts that thepsychological history could well be relevant to the treating surgeon, as it might impact uponwell-being.

65. Dr Meehan observed that prior to the treatment, the Claimant had been compliant andtrusting, and to some extent in awe of the Defendant, but in the aftermath, after believing thatshe had been abused, her mental attitude changed where she felt hostile and angry for havingbeen so submissive. The Claimant had been shocked at the outcome, and her feelings werematerial to the development of her mental state. Although he identified significant post-


traumatic features, including intrusive memories, fear, anxiety and difficulties ofconcentration the symptoms were not sufficient to justify a diagnosis of post-traumatic stressdisorder. Dr Meehan believed that the Claimant had a “post-traumatic state of mind” becauseher basic assumptions about the clinical care had been overturned by what happened. Themore significant diagnosis was adjustment disorder, and the psychiatrist was satisfied that thesymptoms fitted the established criteria, being emotional or behavioural symptoms inresponse to an identifiable stressor, occurring within three months. Because the stressor,namely the poor outcome was continuing, the adjustment disorder had become chronicinterfering with social interaction and functionality. In 2014 he assessed the symptoms asmoderate to severe, with a similar assessment in 2016, at which time he was still advocatingpsychological treatment in the form of counselling and cognitive behavioural therapy. Heexpected that the reconstructive surgery (fat replacement) once complete would have aneffect on improving the overall prognosis, and he was cautiously optimistic that thesymptoms would abate.

66. The Claimant had also suffered an exacerbation of her pre-existing depression, whichprior to the treatment was classified as mild, but which subsequently had become severe. DrMeehan believed that she would remain vulnerable to further episodes of depression, andindeed between the time of his first assessment and the trial there had been several occasionswhen she had slipped into very low depressive mood requiring intervention.

67. He was satisfied that both the adjustment disorder and the aggravated depression werecausally connected to the effects of her surgery, as opposed to the procedure itself.

68. Although there was evidence from June 2012 (bundle 4 page 632) that the Claimantwas experiencing “unbearable depressive symptoms” if she did not take her medication, andwas in a quandary because the medication gave her “unbearable side-effects”, Dr Meehan hadincorporated this factor into his assessment, and believed that it was indicative of ongoingproblems, although they were under control, because the Claimant was clearly functioningwell.

69. Dr Meehan was taken at some length through the GP records, and in particular it wassuggested to him that there was little evidence of involvement of the primary carer in herpsychiatric or psychological well-being. Although he did not accept that this was the case,noting several references, nevertheless it was entirely appropriate that the Claimant was beingtreated in secondary care without a referral back to her general practitioner.

70. It was accepted that the Claimant had not undergone the cognitive behavioural therapy(CBT) which he had recommended in his original report, but Dr Meehan did not accept thatthis was unreasonable, or that it had contributed to any deterioration. The timing of CBT wascrucial, and it could not be taken when the Claimant was emotionally aroused. It was stillappropriate for her to have CBT in the future, and that such treatment would increase thelikelihood of recovery.

71. Dr Meehan found it difficult to give an accurate prognosis as to when recovery wouldbe maximal and believed that in this case it was “complex”. Not only was the improvementof the Claimant’s psychiatric state dependent upon any behaviour related to treatment, but theeventual outcome of the reconstructive surgery was also implicated. He accepted that theClaimant would have had some ongoing depression in any event, and in terms of the extent towhich the substantial therapy/psychiatric costs could be attributed to the “botched” surgery,


he was unwilling to precisely define how much would have been required without it. Heopined that whilst the need for appointments would be related to both a psychiatric overviewand dealing with vulnerability to further depression from traumatic events, nevertheless itwas significantly more than would have been needed.

The respective submissions

72. The submissions were heard over the course of the final day, with both counselpresenting extremely thorough and helpful speaking notes which were elucidated orally. Thecourt was also provided with Scott schedules for the purposes of any assessment of quantumthat is required, and an identification of the extent of quantum issues which would have to beaddressed.

Claimant73. On behalf of the Claimant, Miss Godfrey started by identifying the principal questionwhich falls to be resolved, namely was this a case of general VASER liposuction, that isdebulking of unwanted fatty tissue, or a far more aggressive form of Vaser with highdefinition exposure of the active muscles? If the former, the Claimant must succeed, becauseof the concession made in cross- examination that if it had been a more moderate procedure,excessive amounts of fat were removed.

74. She submits that the Claimant’s case on the alternative factual scenarios is inherentlymore credible, bearing in mind the Claimant’s age (47 years), her pre-surgery appearancewith soft feminine body curves and not an athletic body builder’s look, and her expressedwish repeated on many occasions for a natural feminine look. Insofar as she had previouslyhad a bad experience with cosmetic surgery, and clearly trusted the Defendant, it is unlikelythat she would have gone ahead with a surgical procedure against the advice of the treatingdoctor. The Defendant’s account, on the other hand, is largely fabricated after the event tojustify the excessive fat removal.

75. Miss Godfrey also relies on the contemporaneous medical records, including theDefendant’s notes, and the video of the consenting process, none of which support thesuggestion that she was seeking a highly sculpted and muscled appearance. In particular, theindication on the consultation diagrams showing areas to treat are not circumferential, whichis required for high definition, but specific, and the estimation of fat calculated to beremoved, 5000 mls did not include the anterior thighs. The term “high definition” simplydoes not appear anywhere. If the Defendant had advised against the high definition look,there is no indication of this in any of her notes.

76. The court is invited to draw adverse inferences from the absence of any witness tocorroborate the Defendant’s account, (Dr Victoria Virtosu) and the failure to disclose thephotographs which were allegedly shown to the Claimant at the initial consultation process.

77. Also relevant to the first and most significant issue, submits Ms Godfrey, is the fact thatthe Defendant’s case depends upon a specific agreement for the removal of 4.5 litres of actualfat, when there is a complete absence of any such reference in the notes, whether or not thatamount of fat was actually removed. The Defendant had provided a construct after the event,namely that she had carefully estimated the amount of fat to be removed by prior agreementwith the Claimant, being 90% of the volume identified, to achieve a high definition look. Themedical records appear to suggest that the Defendant thought that she had removed 6 litres of


fat which is hardly consistent with a maintained position throughout that there was a veryspecific procedure being followed based upon precise calculations. The absence of precisionis demonstrated by evidence, which the court is invited to accept, that on discharge (5th

October 2012) the Defendant reported to the Claimant that she thought she had removed toomuch fat.

78. Ms Godfrey also identifies a second factual issue which she submits should leadautomatically, if determined in the Claimant’s favour, to a finding of negligence, without anyreference to particular standards of care. This is a fall-back position which is said to ariseonly if the court believes that high definition laser liposuction was requested by the Claimantand provided by the Defendant. It is said that even for high definition it was necessary toleave sufficient subcutaneous fat layer across the thighs and buttocks, and this the Defendantfailed to do. The assertion is evidenced by post-treatment examinations including those of MrSorensen, consultant plastic surgeon, who found very little fat left on the operated areas withskin adhering to muscle without any underlying soft tissue in between, (September 2012) MrFazel Fatah, to the effect that both legs were almost defattened and skeletonised (January2013) and Mr Nishikawa, the Claimant’s expert who concluded in March 2014 that therewere large areas where the subcutaneous fat had been completely denuded down to themuscle fascia.

79. It is submitted that there is no evidence to support the Defendant’s case that just over10% thickness the fat layer was left continuously. The ultrasound scans on which theDefendant relied provided three depths in three separate places which were insufficient todemonstrate a continual residual fat layer, and the Defendant’s calculations were flawed orextremely crude and rudimentary. Further, the recent explanation that there was a possibilityof further fat necrosis from thermal damage in the months after October 2012 was of nosubstance, and in any event if there had been thermal damage this would have risen fromover-aggressive use of the probe.

80. If and insofar as support is derived from any MRI scan, Ms Godfrey submits that theMRI scan was not intended to determine layers of fat, and the best interpretation was thatthere was still some fat present in the legs. If and insofar as Mr Sorensen’s conclusion is to beinterpreted as a mistaken belief that skin was adhering to seroma rather than muscle, thislacks credibility.

81. Aside from the two factual findings which Claimant’s counsel invites the court to make,she also addresses, again hypothetically, the question of the standard of care to be applied tohigh definition VASER liposuction, which falls to be determined by consideration of theevidence of the two experts, Dr Nishikawa, and Dr Glancey.

82. However, in the case of the latter, Ms Godfrey provides a robust challenge to hercompetence and qualification to act as an expert. Not only does Dr Glancey’s proximity interms of working relationship, BABS management and acquaintance affect her impartialityand independence, her lack of experience as an expert, and possession of the qualificationsand kind of research and academic curriculum vitae which would set an expert apart rendersher evidence of little worth. Her experience arises only from the number of VASERprocedures which she has performed, which in any event appears to be fewer than thoseperformed by the Defendant. Further, her reference to standards and good practice appears tobe derived from the self-regulated organisation of which she is head of faculty of clinical


governance, and it is notable that such standards, if they could be called that, were not inplace until after the relevant treatment had been carried out in this case.

83. Whilst advancing an argument based upon res ipsa loquitur, Ms Godfrey in the courseof oral submissions drew back from insisting that what her expert had described as a grosslyunacceptable outcome was sufficient to displace the burden of proof, requiring the Defendantto lead a non-negligent explanation. Otherwise, she based her submissions on the four aspectsdrawn from Mr Nishikawa’s evidence, and thus refined from the more extensive pleaded casethat (a) there have been a negligent preoperative assessment, based upon the use of theultrasound as an inadequate measurement (b) the Defendant had removed too much fat (c) theDefendant had failed to leave a continuous subcutaneous fat layer and (d) the VASER probehad been used negligently and over aggressively causing severe internal injury.

84. In relation to (d) there was a significant disagreement between Mr Nishikawa and DrGlancey as to the cause and constituents of the seromas which were seen post operatively. MsGodfrey asked the court to prefer the evidence of Mr Nishikawa that the seromas containedboth serous fluid and blood because they were more likely to be burns, not least the largestseroma which was 30 cm long, and because of the pain it generated, as well as the resultantfibrosis. These arose not as a result of a natural consequence of the procedure, but because ofexcess fat removal prolonged and aggressive use of the VASER probe.

85. Counsel for the Claimant addressed the basis upon which the matter was beingdefended, and the apparent reliance on either a practice accepted by a responsible andreasonable body of medical practitioners (Bolam v Friern Hospital ManangementCommittee [1957] 2 All ER 118 and the fact that a practice was being followed which wasresponsible and logical (Bolitho v City and Hackney HA [1997] UKHL 46). In relation tothe Bolam defence, it is submitted that the Defendant, who founded BABS after she hadperformed this particular procedure, was acting in accordance with methods which she hadherself set up and that the removal of 90% of estimated fat to reveal highly defined andsculpted muscles was at best experimental and not an approved standard practice. In relationto Bolitho, Ms Godfrey makes similar submissions to the effect that there was noresponsibility in slavishly following the 90% fat removal method which was inherentlyinaccurate.

86. In respect of causation, it is submitted that most if not all the alternative scenariospostulated by the Defendant have either been abandoned, or unsupported by any evidence.Insofar as there may be a dispute between the parties as to whether the Claimant was askedby the Defendant about her psychiatric history, which is said to have causative potency to theeventual outcome, the court is asked to prefer the evidence of the Claimant to the effect thatthis did not happen. In any event, she had disclosed details of the medication includingCipramil, which is a well-known antidepressant and it was the doctor’s duty to take a full andproper history and not to require the patient to volunteer relevant information.

87. Ms Godfrey made a number of submissions in relation to the damages aspect of theclaim, which I shall address later in this judgment when dealing with the evaluation ofquantum.

Defendant88. Turning to the Defendant’s submissions, Mr Butler provides an overview by way of thecontext in which the claim should be considered. This was elective surgery with a highly


desired outcome on the part of the Claimant, and the fact that risks materialised, which werepointed out, to the effect that the liposuction procedure produced a disappointing result whichwas not that expected, does not of itself establish liability without more. Elective cosmeticsurgery requires a highly subjective assessment as to its procedure and result, and a courtshould be cautious before arriving at its own conclusions, in particular whether the surgerywas advisable. Here those providing elective VASER surgery were in the best position to settheir own standards and define their own methods.

89. Mr Butler then addressed the issues which the court has to resolve, which like MsGodfrey he divides into primary and secondary considerations, the significant factualquestion being whether or not excessive fat was removed from the buttocks and thighscontrary to the Claimant’s wishes. The secondary considerations address the specificallegations of negligence made in the pleading, on the basis that the court accepted that highdefinition sculpted muscles were requested and wanted by the Claimant.

90. In relation to the main factual issue, counsel refers to the fact that the Claimant hadundergone many cosmetic procedures previously and would have been assiduous in findingthe best surgeon to undertake the VASER, and to have explored in detail with the Defendanther expectations and requirements. The specific advised expectation (recorded in thetranscript) to have more toned up and slender looking thighs was properly to be interpreted ashigh definition, even if this terminology was not used, because of the clear evidence that theClaimant was shown photographs and would have been careful in selecting the correct lookwhich she required. The patient assessment form confirmed that 5 litres of fat were to beremoved from the thighs and buttocks and the areas were noted as “whole areas” with the fatquantities properly estimated by ultrasound. The Claimant would have been aware that thecosting was made up on the basis of 5 litres of fat with 4.6 hours involved in the liposuction.That was not consistent with modest fat removal. He invited the court to consider theconsultation notes from 26th January 2012 as well as the notes from August 2012 , the consentform, the liposuction datasheet and the transcripts. It is highly relevant that in October 2012the Claimant was satisfied with the outcome.

91. Insofar as reliance is placed on Mr Nishikawa’s expert evidence, his opinion that theprocedure was not required is irrelevant, and it is to be noted that he has no experience of theuse of VASER; at times he was expressing his personal opinion particularly when contrastingthis type of liposuction with conventional liposuction.

92. Mr Butler takes each of the allegations of negligence separately when addressing whathe acknowledges are the secondary issues, relevant to the question of standard of care, insofaras a finding that the Claimant did not seek high definition VASER liposuction would entitleher to damages, and thus bypass such a process.

93. The first of these relates to the use of the VASER probe or wand, so as to causemultiple large seromas. Whilst not accepted that these were caused by burns, neverthelessseromas were an accepted risk of the surgery to which the Claimant consented, and whichmay have required further treatment for their removal. This was accepted by Mr Nishikawaand his opinion that the seromas were likely to represent thermal injuries from overuse of theprobe, with evidence of transudate, mainly blood and fluid in combination, was just that,namely an opinion, because he had never previously undertaken this kind of liposuctionsurgery. There was little or no evidence that these seromas were anything more than the


materialisation of an accepted risk of the procedure, notwithstanding that one of the seromasmeasured up to 30 cm.

94. The second issue was concerned with the failure to provide overnight facilitiesfollowing the carrying out of high-volume liposuction, or to admit the Claimant to a hospitalto allow an adequate monitoring of her condition. (In the course of exchanges with counsel, Iindicated that I did not regard this allegation as anything other than a makeweight, at bestgiving rise to some transient discomfort, and certainly not causative of any long-termconsequence. Accordingly, it was not answered in any detail by Mr Butler.)

95. The third issue was more significant, and related to the alleged excessive removal of fatsubcutaneously so as to leave many areas denuded. In this respect, it is submitted that themethods of measurement by the Defendant through the use of ultrasound, as opposed to avisual assessment, was an entirely appropriate one. The Defendant’s evidence was that thesemeasurements established sufficient fat (in the region of 10%) had been left applying thenecessary calculations; not only was ultrasound a useful tool, but also the fat had beenmeasured as it was being removed by the VASER machine. At the time Mr Sorensenexamined the Claimant, there was significant swelling and hardness over the subcutaneoustissues, and seromas would have been present at this time. Further whilst pointing out thatskin may have been adhering to muscle without underlying soft tissue, at no point did MrSorensen describe the subcutaneous fat as having been completely denuded to the musclefascia. This was similarly the case with Mr Fatah.

96. The fourth issue was closely connected, and that is the reliance on ultrasound as thesole means of pre-operative estimation of the volume of fat removal. Mr Butler submits that itis relevant that the Defendant has performed over one thousand such procedures usingultrasound, as have other practitioners, and it has been an acceptable method for many years.There was a built-in margin of error of 150 mls. Furthermore the Claimant was also assessedby appearance, and skin touch.

97. The fifth issue related to the plan based upon alleged inaccurate and inappropriateultrasound measurements, rather than an aesthetic endpoint, and was dealt with in thesubmissions already made in relation to the fourth issue.

98. The sixth issue related to an alleged failure to adequately or at all monitor and assess fatremoval during the procedure, in other words to carry out the fat removal almost blindly. It issubmitted that there is no evidence that the Defendant did anything other than control theamount of fat being removed with the use of accurately measuring equipment.

99. The seventh issue relates to the non-provision of hospital facilities, and is no longerrelevant.

100. The eighth issue relates to the failure to provide proper monitoring of the Claimant’sfailing haemoglobin levels. This is based upon Mr Nishikawa’s opinion that the managementwas substandard but it is submitted that the evidence points to a significant degree of care andattention on the Defendant’s part, with an immediate referral to hospital as soon as it becameapparent from the blood tests that the haemoglobin level was raised at 7.6. It would not havebeen open to the Defendant to carry out any blood transfusion herself, because this procedurecan only be performed by trained doctors at hospital. Accordingly, it is said there is noevidence of any failures on the part of the Defendant.


101. Mr Butler addressed the ninth issue briefly in his written submissions of res ipsaloquitur, but did not expand on them orally when I confirmed that this would not benecessary.

102. The final issue relating to the standard of care raised the question of GMC guidelines infailing to practice within competence, and by interfering with ongoing management, puttingthe interests of the clinic above the interests of the patient. Mr Butler submitted that even ifthis was capable of being established, which on the evidence it was not, this was a regulatorymatter, rather than any breach of duty or failed standard of care which gave rise to anyconsequence. It was pointed out that the Defendant was extremely experienced in theperformance of the VASER liposuction attending annual appraisals and revalidation.

103. On the question of causation, if the court were to accept that the Claimant had notrequested a high definition exposed muscles look it was still necessary to consider whetherthe Claimant could establish that the removal of 2 to 3 litres of fat would not have led to thesame post-operative complications. It is submitted, that on a balance of probabilities, theClaimant could not prove causation in this regard.

104. Mr Butler made several submissions in relation to damages, and I shall address these,together with his schedule responses, when considering the quantum aspect of the claim.

Discussion

105. In their skeleton arguments at the outset of the hearing, both counsel made detailedreference to the legal principles which have to be applied to a case of this nature and providedan agreed bundle of authorities containing the relevant cases. However as the evidence hasemerged, and the submissions have been refined, it has become apparent that there is nodispute on any question of law, and little further reference has been made to authority, otherthan an endorsement of the test for determining the standard of care derived from Bolam(supra) in the event that the court is required to decide whether the Defendant performed anagreed high definition liposuction procedure in a manner which would not be accepted asproper by a responsible body of medical practice in that particular specialism. This isbecause, as indicated above, both parties accept that the primary question is one of pure fact,namely what is the cosmetic procedure which the Claimant requested and which theDefendant undertook to perform? If this question is determined in favour of the Claimant,then no issue of informed consent or a failure to follow acceptable practice arises: quitesimply, whether approached from a contractual or a tortious point of view the Defendantinflicted on the Claimant incorrect and inappropriate treatment, and the only question iswhether that led to injurious consequences.

106. If resolved in favour of the Defendant however, it is necessary to determine whether ornot the high definition liposuction performed was substandard by reference to the availableevidence as to what was acceptable practice (and subject of course to the extent to which thecourt is prepared to accept the evidence of Dr Glancey, the admissibility of which ischallenged, as a basis for assessing a standard of acceptable practice). This again is a questionof fact and no complex question of law arises as to the approach necessary.


107. Thus to address the primary question and the stark conflict which is presented, I startwith the evidence of the Claimant, Tracey Giles, and the Defendant Dr Alexandra Chambersand their respective accounts, together with the relevant documentary material.

108. The definitions of the respective procedures which have emerged during the course ofthe evidence are (1) high definition, or high def, to describe the substantial removal of fat toreveal the muscular structure, exposing the muscles and leaving no visible fatty tissue, thepreferred appearance of bodybuilders and those who wish to convey an impression of beingfit and muscular, and (2) debulking, which describes the selective removal of areas of fat inoverweight individuals, or those who are concerned about parts of their body havingexcessive adipose tissue, which is by far the most common procedure. Regrettably save inone very small respect, neither of these terms appear in any of the documentation, either themedical records which are generated by the Defendant, the material provided by way ofinformation beforehand, or transcripts of oral exchanges between the Defendant and theClaimant at the consenting procedure in August 2012 or on the discharge in October 2012.

109. The small respect referred to is the document which deals with the estimated cost(bundle page 213). This is a computer-generated document with drop-down menus where inthe column entitled “Lipo type” there is the facility to describe the liposuction as high def, butnotably in relation to the one area in which it is suggested that there ought to be fat removal,namely inner thighs, the Lipo type is described as “general”. Whilst this is said by theDefendant to have been a mistake by her assistant, from whom the court has not heard, it isunfortunate that in the very place where this matter could have been put beyond any doubt,(although the Claimant says that she never received this document), there has been noreference to the type of treatment which the Defendant has contended for. There would havebeen further opportunity in the handwritten endorsements which appear on the right-handside of the page, but again these do not describe high definition liposuction by VASER. It isfair to say that they do not describe debulking either, although the nomenclature “general”might be appropriate in this regard.

110. Although it was not disclosed, in the sense of being made available at the outset of thetrial (it might have been sent to the Claimant’s legal advisers at one time) the patientcomplaint analysis, a document generated by the Defendant herself, does not make anyreference to the description of high definition which has become so central to the case,although reliance is placed upon page 283 which makes reference to “improving themuscular definition of the thighs and lower buttocks”. One of the questions which I must askmyself is whether or not this is simply another way of describing high definition liposuction,although this is not a document which was ever seen, or endorsed by the Claimant.

111. At page 683 in core bundle 2, there is another important document, again generated bycomputer, which refers to the first consultation with the Claimant. These were relativelyextensive notes in which the Defendant was afforded the opportunity to input free text (thereis no suggestion that there was a word limit to the particular field). It is in this place whereone might have expected to see a reference to the specific type of cosmetic surgery, which itis agreed was unusual, especially in the light of the Claimant’s age, and which either at thispoint or subsequently when the procedure was embarked upon was contrary to the advice ofthe treating doctor. Whilst the risks are clearly set out, the alternative types of VASERliposuction are not described. There is reference to the areas where the Claimant wasconcerned about fatty tissue, although there is no indication that it was regarded as excessiveor unsightly.


112. There is also a document (page 677) which is referred to as a patient assessment form,also created on 26th January 2012. This was not computer-generated but provided a diagramshowing the areas in the lower part of the body to be treated. It is suggested, with somevalidity it seems to me, that the type of liposuction being proposed (circumferential) is notconsistent with the shaded areas to the front of the thighs which appears to suggest a focus onthe inner thighs and not the outer thighs. As it is the Claimant’s case that she wanted a gapbetween her thighs to create a more feminine appearance, it is not surprising that there shouldbe this focus. However, it is difficult to place too much store by what is clearly a rough andready diagram.

113. Similarly, on the ultrasound assessment sheet (page 741) which was the subject of somecross-examination of Dr Glancey because of potentially inaccurate figures, the row adjacentto “anterior thighs” is missing any inserted data. It is suggested that this would not beconsistent with a circumferential removal of fat but again consistent with the inner thigh gapwhich the Claimant was trying to create.

114. Whilst reliance has been placed by the Defendant on material which indicates that theamount of fat measured and to be removed in the buttocks and thighs was 5 litres (which isalso described in one place as the estimated fat volume) from which it is appropriate to inferthat this was going to be a substantial procedure and not one involving mere debulking, itseems to me that unless some specific understanding is attributed to the Claimant as to thescope of the procedure with this amount of fat removal, it does not provide evidence of heragreement to high definition liposuction, and at best provides some equivocal support for theDefendant’s intention, from the outset, to remove significant volumes of fat.

115. In one significant and material respect, the documents, and in particular the consentingprocess, may have provided a useful pointer as to which of the diametrically opposedaccounts is correct. It is the Defendant’s case that not only did the Claimant insist on highdefinition and the exposure of all her active muscles, furthermore she did so against thespecific advice which she the Defendant provided, that this would have produced aninappropriate and unattractive result, and was not recommended. Whilst elective cosmeticsurgery defers in most instances to the choice of wishes of the patient, and is very subjective,in my judgment it is surprising that at no point does this robust advice appear in thedocumentary material. Further, the transcript of the conversation prior to the treatment doesnot contain any suggestion that the Defendant was seeking to dissuade the Claimant fromembarking upon a course which was not only risky, but also unlikely to make her lookparticularly attractive.

116. In the context of this review of the documentary evidence, I consider the oral evidenceof the Claimant and Dr Chambers respectively on the discrete point as to the choice ofprocedure.

117. The Claimant came across as an emotionally volatile person, who struggled to recallsome of the more historic aspects of her treatment for mental health issues and depression.However, in relation to her interaction with the Defendant she was generally consistent in herrecollection and in my judgment gave credible evidence as to what transpired at the variousappointments. She conveyed the impression of a person who reposed considerable trust inmembers of the medical profession, despite her previous experience with a failed cosmeticprocedure. Indeed, she is recorded in the transcript as placing “complete trust” in Dr


Chambers. In this respect, it seems difficult to imagine that she would ignore strong advicegiven to her in relation to a cosmetic procedure.

118. Although staying fit and healthy was clearly an important aspect of her lifestyle,particularly in relation to the training in which she participated, it seems to me that sustaininga feminine appearance and postponing the signs of advancing middle-age were moreimportant, especially with the image she would need to convey because of the business inwhich she worked. Her obsession with appearance and addressing what she subjectivelyperceived to be unsightly aspects of her body is manifest in treatments which she hadundergone, and her continuing desire for ongoing treatment in the form of Botox and the like.Therefore, a desire for a thigh feminine gap, and a more feminine appearance is not onlyplausible but in my judgment a highly likely aspiration for the Claimant. It is difficult toimagine the Claimant opting for an image which produced extremely sculptured and exposedmuscles which was anything other than feminine, and loved by bodybuilders especially whenshe had been given strong advice that it was inappropriate.

119. I did not find the Defendant to be a convincing witness. Although she gave herevidence in a calm and controlled manner, at times she conveyed the impression of followinga formulaic approach, with an unswerving belief in the effectiveness of her own procedures.Her explanations for the failure to record the desired outcome in her notes, including theattribution of a mistake in the drop-down menu by her assistant Victoria Virtuso, from whomthe court has not heard, lacks credibility. Insofar as she emphatically insists that the Claimanton more than one occasion stated that she wanted all her active muscles exposed, using thoseactual words, it is extraordinary that at no stage has she recorded the desired wish when therewas ample opportunity to do so. The Defendant does not strike me as someone who wouldomit to include relevant material in her notes, especially when it related to an outcome whichthe patient/client is supposed to have insisted upon against expressed advice to the contrary.

120. The absence of any photographs, which would have been easily accessible to theDefendant, and on which significant reliance has been placed to support the suggestion thatthe Claimant specifically chose a sculptured and muscled look, causes some concern. Thiswould have been compelling evidence one way or another. It might have been expected that acosmetic surgeon would have at her fingertips the photographic material to demonstratepotential outcomes, and the absence of the specific photograph leads to an inference that theClaimant is in fact correct on this point, namely that she was only shown pictures of largerwomen who had had selected areas of fatty tissue removed.

121. I must decide this primary question of fact on a balance of probabilities. In thecircumstances, I have concluded that it is more likely than not that the Claimant did notrequest a sculptured and muscled high definition appearance with the removal of substantialquantities of fat. It is likely that she was after a specific result, mainly a more feminineappearance with a thigh gap. Even if she had been made aware that 5 litres of fat were to beremoved, and I am not convinced that any clear information was provided to this effect, asopposed to an ultrasound identification of 5 litres of fat in the area of the buttocks and thighs,I find on a balance of probabilities that this would not have led the Claimant to anyreasonable belief that the Defendant was going to embark upon a procedure of aggressive andextensive fat removal.

122. Insofar as the Defendant contends that she counselled the Claimant against anunfeminine highly sculptured and muscled appearance, I reject this evidence. It is


inconceivable, in my judgment, that a doctor of this experience would not have recorded heradvice in any of the consent documentation or other notes, or to have made reference to heradvice in the course of the video recorded exchange prior to treatment.

123. I do not believe that it is appropriate to speculate as to why the Defendant chose toprovide a liposuction procedure which had been neither requested nor required by theClaimant. If the costing of the procedure was based pro rata on the amount of fat to beremoved there may have been financial incentive to maximise by reference to the actual fatwhich was measured without differentiating between any particular procedure. Equally, inview of the interval between the initial consultation and the Claimant’s return for thetreatment there may have been a slavish adherence to the removal of five litres of fat withscant regard being given to what it was that the Claimant wanted to achieve. However, it isunnecessary to attribute any improper motive to the Defendant, who, whilst a relativelyexperienced VASER practitioner was operating at a time before this particular specialism hadprovided its self-regulated guidelines through BABS. It is sufficient that the Claimant hasestablished on the balance of probabilities that she did not agree to a high definitionliposuction.

124. In the light of my findings on the primary question of fact, and the agreement of bothcounsel that subject to the question of causation, negligence and/or breach of contract isthereby established, it is unnecessary to consider in any detail the subsidiary questions.However, because the court has received a considerable amount of evidence and submissionit may be helpful if I made some general observations on the matters that have been raised.

125. It is also relevant to address the position of Dr Glancey as an expert witness had it beennecessary to resolve any dispute between her and Mr Nishikawa, because the admissibility ofher evidence has been challenged. I can deal with this relatively briefly. The circumstances inwhich she came to be instructed leave a lot to be desired. She is not a plastic surgeon, eventhough a cosmetic “surgeon” with some knowledge and experience of the particularprocedure under scrutiny might have been helpful. Accordingly, the Defendant did not havepermission to rely upon her. It was unfortunate that she was allowed to engage with MrNishikawa in a joint report and by this stage the die was already cast. In my judgment, thereis some substance to the argument that her impartiality, independence and objectivity havebeen undermined by her closeness in professional terms to the Defendant, and it is aconnection which should have been disclosed in her report. Nevertheless, I have come to theconclusion that her instruction, whilst perhaps ill-advised, was not engineered by theDefendant and was genuinely considered by the Defendant’s solicitor to be appropriate. Itseems to me that the non-disclosure of a professional connection was not so much deliberateas inadvertent and borne out of inexperience by Dr Glancey in giving expert evidence.

126. In the circumstances I have been prepared to admit her report and evidence on the basisthat it is expert testimony, rather than exclude it. The weight which I attach to any opinionexpressed by her, however, is to some extent diminished by the lack of completeindependence and impartiality which must necessarily be attributed to an expert witness. Inthe light of my findings this is somewhat academic, because little or nothing turns on anydispute to which her evidence might be relevant.

127. The Claimant by counsel posed a second factual question: did the Defendant fail toleave a continuous subcutaneous fat layer across the Claimant’s thighs and buttocks? It was


agreed that if this was the case negligence would be established as it would have amounted toa substandard level of care.

128. The resolution of this question to some extent would have depended upon the efficacyof the ultrasound measurements upon which both the Defendant and Dr Glancey placedreliance, contrasted with the findings of three separate plastic surgeons, two of whom weretreating the Claimant in the initial stages. In my judgment, whilst a useful tool for thesectional and isolated assessment of fat thickness, ultrasound has its limitations, asdemonstrated by the fact that two measurements here could only establish a depth of fat inindividual areas (.22 cm and .23 cm) when fatty layers circumferentially are bound to varysignificantly. In this respect, I prefer the evidence of Mr Nishikawa that visual and palpableassessment of fatty tissue is necessary and reliance on ultrasound alone would be insufficient.

129. The evidence of the Claimant that the Defendant told her after the procedure that she“thought she had removed too much fat” and that the “fat just kept coming and coming” alsofalls to be considered in this regard. On the balance of probabilities, I accept that this wassaid. Accordingly, it is unlikely, despite the fact that the VASER machine was measuring thefat removed, that the Defendant had sufficient control over or was able to have regard to theamount of fat which remained in place subcutaneously.

130. There is an additional matter. The Claimant is undergoing extensive procedures for thereplacement of fat in tissues which have been assessed clinically to contain little or no fatbetween the muscle fascia and the skin. In view of her experiences, it is unlikely that theClaimant would have submitted herself to unnecessary processes, or that the advice of thetreating plastic surgeons to undergo fat replacement would have been given if there was not areal problem to be addressed.

131. Accordingly, I would have answered the second question in favour of the Claimant, hadit been necessary so to do.

132. All other questions of substandard care again only arises hypothetically. In myjudgment, there is little or no substance to the criticisms relating to the absence of overnightfacilities, hospital referral or after-care generally. At best, any identified failures would havegiven rise to transient discomfort, but it seems to me on a balance of probabilities that theDefendant was doing her best to alleviate the problems which were associated with the highdefinition VASER liposuction procedure which she actually undertook, and for which theremay have been inherent risks, such as the development of seromas generally and raisedhaemoglobin levels.

133. The only issue of potential substance relates to the nature of the seromas, althoughagain it would appear that the consequences for the Claimant diminished over a period oftime, even if there may have been some implication in the eventual unsatisfactory outcome.This arises from the allegation that the probe was used negligently and over aggressively soas to cause severe internal injuries.

134. There is no doubt on the evidence that the seromas were unusually large and extensive.Mr Nishikawa’s theory that they were thermal burns and that the constituent parts of theseromas contained transudate, that is a combination of blood and serous fluid as fluid leakedfrom burned tissue is qualified by the fact that he did not examine them, but only some hardand fibrous tissue which he attributed to scarring as a consequence, several months


afterwards, and there is an absence of contemporaneous evidence which confirms this is thecase.

135. In my judgment it would have been difficult to distinguish between seromas whichwere caused by aggressive and unnecessarily extensive use of the VASER probe, and whichmay have contained transudate, and those which would have arisen from a procedure whichwas by its very nature one requiring a substantial amount of fat removal over a long period oftime at the request (hypothetically) of the Claimant. Insofar as the burden of establishingsubstandard care would have rested on the Claimant’s shoulders, if it had been necessary toresolve this issue I would have concluded that the Claimant had failed to prove that theDefendant had been negligent save as indicated in paragraphs 27 to 31 above, as opposed toundertaking a procedure which the Claimant had insisted upon, contrary to the doctor’sadvice, and which led to consequences in the form of excessively large seromas identified asrisks beforehand.

Causation

136. In any event, the Claimant may have struggled to establish any causative link betweenany specific proven failures or want of care in relation to the matters set out at paragraphs132-135, and the consequences for her. However, as I have indicated that is of academicinterest only. The question which now falls to be considered is whether or not the Claimant’sinjury and associated loss is consequential upon the undertaking of unrequested and thusinappropriate high definition liposuction.

137. The starting point, it seems to me, is the agreement that the Claimant has been left withan extremely unsatisfactory cosmetic result in her thighs and buttocks, with many areasalmost devoid of fat, a dimpled and mottled appearance, a degree of asymmetry, and the needfor fat replacement across a large area. The legs are unsightly and remain largely covered bythe Claimant who is extremely self-conscious about them. There are potential psychiatricconsequences, which I shall address under the heading of quantum.

138. The Defendant submits that on any interpretation the Claimant was hoping to achievetoned and slender legs. This would have required the extraction of 2 to 3 litres of fat on theevidence of Mr Nishikawa. There were inherent risks even in a general debulking procedure,and the Claimant has not proved on a balance of probabilities that these risks would not havematerialised giving rise to the same consequence. The Defendant no longer pursuessuggestions that the failure to wear the compression stockings, hereditary telectangasia, pre-existing anaemia, or the failure to undergo the insertion of gold threads have any causativepotency.

139. In my judgment there is no substance to the Defendant’s argument. Even on theDefendant’s evidence the risks were materially increased by the more extensive andaggressive procedure involved in high definition. Dr Glancey referred to a frequency ofconsequence as the differential. I am satisfied, on a balance of probabilities, that if theClaimant had had a measured degree of liposuction applied to selected areas, as she hadrequested and expected, the amount of fat removed would have been significantly controlledand she would not have had the consequences of this highly unsatisfactory cosmetic resultwhich now requires extensive revision.


140. The Claimant is entitled to be compensated, accordingly, for the damages which flowfrom these consequences.

Quantum

141. I propose to follow the various headings in the schedules for the purposes ofassessment, noting that despite the belief on the part of the Claimant that a figure was agreedfor general damages as a result of the cosmetic and psychiatric injury, this is not in fact thecase. My summary is provided in tabular form at the end of this judgment.

General damages

142. The pain, suffering and loss of amenity has two elements. The first of these isrepresented by the physical consequences, comprised in the cosmetic appearance which bymy judgment above is consequential upon the unrequested removal of excessive quantities offat following high definition liposuction, and the pain and suffering associated with thefurther cosmetic procedures which are now necessary including fat transfer and breastreduction. The latter is disputed in terms of a separate item of special damages. The secondelement relates to the psychiatric consequences, which have been described in detail by DrMeehan in his evidence. The extent of any mental health symptoms is also disputed by theDefendant with a challenge to other items of special damage, and in the circumstances itwould be convenient if I addressed these issues at the outset of this assessment and providedmy findings.

Psychiatric issue143. In relation to the three aspects which have been described by Dr Meehan, namely post-traumatic state of mind, adjustment disorder and exacerbation of pre-existing depression, thefirst two are clearly capable of being attributed to the treatment on the basis of the expert’sevidence, which I unhesitatingly accept. The emotional and behavioural symptoms whichwere clearly interfering with her life, and included two suicide attempts, were still present atthe time of his examination in 2016, although it was expected that when addressed bycognitive behavioural therapy there was likely to be a significant improvement. I accept thepsychiatrist’s evidence that it was not unreasonable for the Claimant to await furtherimprovement of the cosmetic outcome before undertaking this therapy. Thus, for theseaspects the Claimant is entitled to be compensated for problems persisting over several years,but which are expected to diminish.

144. Overlying the features of post-traumatic state of mind and adjustment disorder is theexacerbated depression, which will also have affected the Claimant’s behaviour andfunctioning, although the evidence of Dr Meehan is that the Claimant is generally a highfunctioning individual. The problem in terms of assessment is the extent to which theClaimant would have had symptoms associated with her depressive condition in any event. Itis clear that she was regularly seeing a psychiatrist for therapy purposes (to the extent that shewas on medication immediately prior to the cosmetic procedure in question) and had“unbearable symptoms” at this time. She was regarded as vulnerable to episodes ofdepression in response to any traumatic event in life, although prior to the treatment herdepression was regarded as mild, whereas subsequently it had become severe.

145. Dr Meehan was unwilling to specify how much treatment would have been required inthe absence of the botched procedure, save that it was significantly more than might have


been expected. Whilst assessment of attributability of ongoing depression is notstraightforward in the circumstances, doing the best that I can it seems to me thatapproximately 60% of the problems associated with depression, including the symptoms andnecessary treatment are referable to the Defendant’s failure.

Physical injury issue146. Only the breast reduction procedure appears to be relevant here. Regrettably, thereasonable need for such surgery is not addressed by the expert evidence, although MrNishikawa refers to the procedure involved in his second condition and prognosis report. It isclear that the Claimant by then (late 2016) had undergone two procedures, the first involvingthe insertion of a smaller implant, and the second a further reduction with associatedmastopexy or skin tightening. Previously she had had breast augmentation. The case quitesimply is that there was a significant disproportionality between the greatly reduced in sizelower part of her body, and larger breasts which detracted greatly from the feminine figurewhich she had wished to achieve. It was also recommended by her plastic surgeon.

147. It seems to me that whilst there are many who would not have wanted to undergo somany corrective cosmetic procedures, it could not be said to have been unreasonable for thisparticular Claimant to have chosen to reduce her breasts in size because of the perception ofdisproportionality. The Defendant must take the Claimant as she is found, and in this respecta subjective assessment is required. I regard the breast surgery as attributable and notunreasonable, and accordingly the pain and suffering associated with these procedures isrelevant to my assessment.

PSLA overall148. The court has been referred to the 19th edition of the Judicial College guidelines for theassessment of general damages. It is acknowledged, however, that little assistance can bederived from exemplar cases involving scarring and unpleasant cosmetic injuries becauseevery case is distinctive and individual. (Those cases referred to by Ms Godfrey, it is noted,were mainly out-of-court settlements). In reality there should be some recognition of the factthat the Claimant’s present appearance is likely to improve with further surgery which is thesubject of a separate and specific claim for special damages.

149. Nevertheless, in addition to the objective appearance, allowance should be made for theClaimant’s reaction to her perceived disfigurement, and the lifestyle which she hadpreviously enjoyed both professionally and in a leisure context. To her, femininity, arelatively youthful and attractive appearance and the ability to wear the clothes which sheliked and which showed off her body were all important.

150. As I have indicated it is also necessary to take into account the number of debilitatingprocedures which the Claimant has and will undergo. In the circumstances it seems to me thatassessment of the physical aspect cannot simply identify from chapter 10 of the 13th edition ofthe JC guidelines a maximum award for a disfiguring scar (£17,275). This is only part of thepicture. Accordingly, I take into account all those other features which I have identified, incoming to the conclusion that for this aspect of PSLA an appropriate figure would be£25,000.

151. To this must be added an element to reflect the psychiatric injury based on myassessment above. This will largely be by way of aggregation, because it is a differentinjurious aspect. The court has been referred to chapter 4 of the JC guidelines, and the


category described as “moderately severe”. I am satisfied that the consequences for theClaimant clearly fit within this category, although it is to be noted that the bracket is a verylarge one indeed, being £14,500 and £41,675. A single exemplar case from a court award in2008 before a district judge at Maidstone County Court (Bildstein) has been provided inwhich £20,000 was assessed for the component part for the psychiatric injury in notdissimilar circumstances.

152. Allowance must be made for the fact that some of the Claimant’s mental healthconsequences arise from the continuation of a pre-existing depression, but in my judgment afigure of £20,000 would represent an appropriate award for the non-physical injuries in thiscase.

153. It is not appropriate to discount the total for overlap, and accordingly I assess generaldamages for pain, suffering and loss of amenity in the total sum of £45,000. To this must beadded interest, and it would appear that the Claimant’s figure of 3.74% service to trial date isnot challenged.

Loss of congenial employment154. This is pursued as a discrete head of damages. It is hotly disputed. The Claimant seeksthe sum of £10,000 on the basis that the cosmetic injury, together with the deterioration in hermental health, has prevented her from pursuing a part-time occupation as a fitness instructorfrom which she derived tremendous enjoyment, and that both cosmetic and psychiatricinjuries have significantly impacted on her ability to pursue the business as a beauticianproviding specialist services of permanent make-up. It is said that her daughter is largelyresponsible for the day-to-day running.

155. A claim for congenial employment arises if as a result of an injury giving rise tophysical or mental disability, an individual has been required to give up a job which he or sheenjoyed, and which provided satisfaction and status.

156. These claims were at one time pursued by those who could no longer work as policeofficers, significant professions or in highly fulfilling roles, but are now regarded asappropriate across a wide range of jobs which require a degree of skill or experience, andwhich are rewarding. I accept the Claimant’s evidence that she has been forced to abandonher role as a fitness instructor because of the cosmetic consequences, although her evidence isfar less clear in relation to a diminished role in the business. In principle, I agree that she isentitled to an element of compensation, but the suggested figure of £10,000 is too high in thecircumstances. In my judgment, an appropriate element to compensate the Claimant in thisregard would be £5000.

Past gratuitous care

157. The sum pursued under this head according to the schedule is £1928.96. This isdisputed not in relation to the calculation, or rate, but on the principle that the Claimant, whohad elected to have a VASER procedure, would have required some care post-surgery in anyevent. In relation to the claim for care arising out of the revision procedures, is submitted thatthese were at the request of the Claimant and not as a result of any negligence. However, ithas not been challenged in the evidence, nor was it put to Mr Nishikawa that the subsequentprocedures involving the insertion of fat were unnecessary.


158. The sum is calculated on the basis of 4 hours per day initially for 46 days following theinitial surgery, and thereafter for three further periods of two weeks an hourly rate of £6.85,which is then discounted as it was gratuitous care provided by the Claimant’s daughter.

159. It seems to me that there is some merit in the Defendant’s argument that a degree ofcare would have been provided in the period following the procedure in any event, that isassuming that it had not been high-definition liposuction. This is difficult to measure, but Icannot accept that there has not been some increase over and above the care which wouldhave been required, because of the significant consequences associated with excessiveseroma development, anaemia and the debilitating symptoms associated with the recovery. Iassess this at 50% in the initial period. Accordingly I am prepared to allow 23 days at 4 hoursper day. This equates to £472.65 after allowing for a Housecroft deduction.

160. In relation to the three later periods, in my judgment 4 hours a day is excessive bearingin mind that the Claimant was not having to endure similar consequences from theseprocedures, nor do I believe that 14 days is justified. I allow two hours per day over a total of10 days on each occasion, which equates to a total of 60 hours. Applying the rate sought, butdiscounting, the total which I assess is £308.25.

161. In relation to past gratuitous care, the Claimant in my judgment is therefore entitled tothe sum of £780.90.

Past loss of earnings

162. Under this head, £6040 is claimed. It relates solely to the earnings as a fitnessinstructor. I have already indicated that I accept the Claimant’s evidence that as a result of thecosmetic consequences of the treatment she has been forced to give up her work as a fitnessinstructor. The objection to this claim is in principle, and there is no challenge to thecalculation, which is based upon the number of weeks lost, at a weekly rate of £27.50 for oneclass and £25 for the other. I allow this sum in full.

Reconstructive surgery

163. The sum of £40,413.57 has already been incurred. It represents £22,466.97 spent onseveral procedures for fat transfer. It is my understanding that on the establishment ofnegligence this aspect is agreed as recoverable. The element of £17,946.60 represents the costof breast revision surgery which has been challenged. However, as I have already indicated(paragraph 147 above) I regard this sum as reasonably incurred, and accordingly thereconstructive surgery is allowed in full.

Psychiatric treatment

164. The sum claimed is £22,474. The Defendant makes only a modest concession of £1080in relation to 2 sessions of CBT. The bulk of the claim which comprises numerous sessionswith two psychiatrists, a programme of detox at the Priory because of the abuse of alcohol(said to be attributable to the depressive condition) and the trip to Ibiza recommended by DrCollins. The Ibiza clinic cost £12,500.


165. I have already addressed the question of attributability of the psychiatric consequencesto the index treatment at paragraphs 144-5 above. In my judgment, the Claimant would havebeen required to undergo some treatment in any event in relation to her ongoing depressivecondition and on the balance of probabilities would have incurred costs in this periodsubsequent to the cosmetic surgery as she had prior thereto. It seems to me that the fairest andmost practical way of assessing this particular head of loss (which is challenged as toprinciple rather than breakdown or the accuracy of the calculation) is to allow the proportionwhich I have already determined to be appropriate, that is 60%. There is no reason todifferentiate the treatment in Ibiza, which was recommended by a psychiatrist, even thoughhe may have had a financial interest in the particular institution. Accordingly, under this head,the Claimant is entitled to £13,484.40.

Travel

166. I make a similar adjustment in relation to the travel costs which are claimed, andaccordingly under this head I allow the sum of £1476.70.

Miscellaneous

167. The Claimant seeks the sum of £3447 under this head. It is on the basis that theprocedure caused her body to be dramatically altered with vast fluctuations in weight, makingit impossible for her to use the clothing which she had been proud to wear previously. Shehad to cover her legs and could no longer wear any tight-fitting clothing. In particular, on oneoccasion (the launch of a new salon) which was attended by several celebrities, she purchasedan expensive outfit which flattered her figure, because she was very self-conscious about herappearance.

168. Whilst the various items are supported by receipts, in my judgement this is a very broadand unspecific claim, which does not take into account the fact that there would probablyhave been some adjustment in any event with more modest fat removal, and bearing in mindthe wish of most women of her age, background and society connections it is inevitable thatthe Claimant over this period would have been wanting to add to her wardrobe, adaptingstyles etc. I am not satisfied that there is sufficient evidence that all these purchases wereattributable to the established negligence. I am prepared to make some allowance for the factthat an additional cost would have been involved, but on a far more modest basis than thatclaimed. Further, it is likely that the Claimant would have purchased an expensive outfit forthe salon opening in any event. An appropriate sum under this head, in my judgement, is£1000.

Index operation

169. The Claimant seeks to recover the cost of the liposuction treatment. This is acontractual, and not a tortious head of loss. Whilst it is correct that the claim has beenpursued both in contract and tort, this is on the basis of coexisting duties, rather than a failureof consideration in my understanding. The Claimant is to be compensated for theconsequences of the Defendant’s breach of duty (effectively providing high definitionliposuction rather than moderate fat removal which is what the Claimant had requested). Shehad agreed to undergo the treatment, and in this respect I agree with the Defendant that arefund of the procedure cost is not an appropriate head of damages.


FUTURE LOSSES

Future medical treatment

170. There appears to be no issue but that the Claimant requires two further procedures byway of revision surgery, that is fat removal under the care of Dr Mallucci. This cost isrecoverable.

171. The future psychiatric treatment is more problematic. It involves one aspect (traumafocused CBT) which is recommended by Dr Meehan, on the basis of 30 sessions. I find onthe balance of probabilities that this is reasonable, and will be undertaken by the Claimant,even though hitherto she has declined to undergo such treatment. To some extent there will bean overlap with other aspects of her psychological make-up, and by my findings not all ofthis is attributable to the index procedure.

172. In relation to the cost of treating further episodes of depression, it is noted that this isexpressed by the psychiatric expert to be a contingent cost, because the Claimant is at risk, onaccount of her vulnerability, and it is by no means certain, particularly when this litigation isresolved, that the risk will materialise to such an extent. Further, there is an element (on thebasis of my findings above) of attributability of the depression to other factors in theClaimant’s life.

173. However, a contingency cannot be ignored altogether, and it is reasonable in thecircumstances to make some allowance for the fact that an attributable cost might beincurred. It cannot be calculated specifically, but it seems to me that a fair approach would beto regard this as an item of general damages, in the way that many risks are assessed. In thecircumstances I am prepared to allow the Claimant the total sum of £5000 under this head(future psychiatric treatment) to cover both the CBT trauma focused sessions and the risk offurther depressive episodes requiring psychiatric intervention.

Future loss of earnings

174. The Claimant pursues a conventional calculation in relation to her inability to continueto work as a fitness instructor for the reasons already identified. Alternative multipliers havebeen proposed (taking into account the new discount rate of .75%) and the annual loss isassessed at £2625. As I have indicated above, I accept that the Claimant’s decision todiscontinue working as a fitness instructor was both reasonable and attributable to a loss ofconfidence and poor mental health. However I am less convinced that the Claimant would inany event have continued working in this role up to the age of 60 years. Insofar as otherfactors would have played a role with recurrent episodes of depression only partiallyattributable, in my judgment on a balance of probabilities the Claimant is more likely to havefocused on her business and to have given up instructing fitness well before she was 60.

175. I propose to make a broad brush assessment under this head of loss which would beappropriate to lost opportunity/Blamire type claims. In my judgment an appropriate sumwould be £7500.


Future care

176. This claim is associated with the care and assistance which the Claimant will requireduring periods of recovery from the revision procedures yet to be undertaken. For reasonsgiven above, I do not believe that four hours is required. An appropriate sum can be assessedat £500.

Future transport177. This is a relatively modest claim relating to the cost of travelling for future treatment.There is no reason why it cannot be allowed in full as claimed.

Miscellaneous

178. This claim replicates that which is sought in relation to past loss for which receipts havebeen provided. My comments above are pertinent. There will be some additional costinvolved, and whilst this is difficult to measure, it seems to me that an appropriate sum wouldbe £1000. Bearing in mind the Claimant’s lifestyle, it is likely that she would have beeninclined to buy expensive clothes in any event, and the adjustment will relate to the style andthe extent to which she no longer exposes those parts of her body of which she is notconfident. It must be borne in mind that the Claimant is undergoing extensive revisionprocedures which should have a significant effect on undoing much of the damage caused bythe index procedure.

179. I provide below by way of collection the various awards of damages which I make.

Head of Loss Figure assessed

Interest

General damages for PSLA, including cosmetic and psychiatric consequences

£45,000 £1,683

Loss of congenial employment £5000 £187

Total Generals £50,000

Past losses

Gratuitous care £780.90Lost earnings £6040Reconstructive surgery £40,413.57Psychiatric treatment £13,484.40Travel £1467.20Miscellaneous £1000Index operation £0

Total Past losses £63,186.07Interest at non-disputed rate 1.18% £754.60

Future losses


Future revision surgery £24,000Future psychiatric treatment £5000Future loss of earnings £7500Future care £500Future travel £490.40Miscellaneous £1000

Total future loss £38,490.40

Conclusion

180. The parties are now invited to agree the terms of any final order prior to handing down of this judgement. Further, my arithmetic should be carefully checked. If there are any consequential orders upon which further direction or determination is required, this should beindicated, and if appropriate further submissions can be invited.

in the high court of justice queen's bench division · with a gap between the thighs, and more...

Documents