Edwards v Clinical Beauty Pty Ltd & Anor [2002] QDC 28

DISTRICT COURT OF QUEENSLAND CITATION: Edwards v. Clinical Beauty Pty Ltd and Warren Wing Nin Chan [2002] QDC 028 PARTIES: ANNE PAIVI EDWARDS Plaintiff And CLINICAL BEAUTY PTY LTD First Defendant (ACN 073 347 092) And WARREN WING NIN CHAN Second Defendant FILE NO/S: D3442 of 2000 DIVISION: District Court of Queensland PROCEEDING: Judgment ORIGINATING COURT: Brisbane DELIVERED ON: 1 March 2002 DELIVERED AT: Brisbane HEARING DATES: 27 November 2001 – 29 November 2001, 3 December 2001 & 5 December 2001 – 6 December 2001 JUDGE: Judge McLauchlan, Q.C. ORDER: The plaintiff’s claim against the first defendant is dismissed. Judgment against the second defendant in the sum of $40,000.00 CATCH WORDS: COUNSEL: Mr D Kelly for the plaintiff Mr D Tait for the defendants SOLICITORS: Quinn & Scattini for the plaintiff Primrose, Couper, Cronin, Rudkin for the defendants REASONS FOR JUDGMENT [1] In this action the plaintiff sues the first defendant and the second defendant for damages, including aggravated, punitive and exemplary damages, for breach of contract and negligence and pursuant to the Trade Practices Act 1974 and the Fair Trading Act 1989. The plaintiff is a woman in her mid-thirties who had borne -- 1 of 15 -- 2 children and breastfed them. Her breasts had in consequence lost an appearance of fullness, and indeed were described by medical practitioners involved in the case as “ptotic”. She was desirous of having a cosmetic procedure carried out to her breasts to restore them to a more aesthetically pleasing and desirable shape. The first defendant is a company which at material times provided a referral service for plastic surgeons and other doctors practising cosmetic medicine on the Gold Coast. The principal representative of the first defendant was Ms Pamela Noon who appears to have been a director and shareholder of the company. The business of the company was to enter into contracts with people desirous of cosmetic surgery, the terms of which were, in general, that the person concerned paid a fee to the company in return for which the company provided a doctor and an operating theatre for the required procedure to be carried out. From the fee received by the company a portion of it was paid to another company which provided the operating theatre, and a further sum was paid to the doctor who performed the operation. The balance of the moneys were retained by the first defendant. The precise contractual arrangements between the first defendant and the company providing the operating theatre, and the various doctors to whom the first defendant referred patients was not gone into in the evidence, but obviously contractual arrangements existed between them. The second defendant, Warren Wing Nin Chan was one of the doctors to whom the first defendant referred patients, and was the doctor who performed surgery on the plaintiff in this case. Dr Chan is not a plastic surgeon but he is a doctor with extensive experience in cosmetic surgery. He operates, or operated, for the most part in New Zealand but spends two to three months a year conducting cosmetic operations on the Gold Coast. His patients on the Gold Coast are, or include, those referred to him by the first defendant. -- 2 of 15 -- 3 [2] The plaintiff gave evidence in the proceedings and Ms Pamela Noon gave evidence on behalf of the first defendant. The second defendant, Dr Chan also gave evidence. Pamela Noon gave evidence under the name Pamela Robyn Griffiths, which is her married name. [3] The plaintiff also called two plastic surgeons, Andrew Jenkins and Peter Haertsch, and a report of a further plastic surgeon, Dr Anthony Kane was tendered by the defendants. The defendants also called Mark Alan Edwards, a former husband of the plaintiff, to whom she was married in August 1994, and Warwick Sydney Marshall, a police officer who was a former acquaintance of the plaintiff. The two last-mentioned witnesses were called in relation to an issue which arose in relation to the quantification of the plaintiff’s claim for damages, namely, whether the disfigurement alleged to her breasts as a result of the operation was such that she had abstained from sexual relations since her divorce from her husband in July, 1999. Both witnesses said that they had in fact had sexual relations with the plaintiff since that time, but the plaintiff persisted in her denial of this. The plaintiff was permitted to give further evidence on the topic following the evidence of these two gentlemen upon the basis that I would consider the admissibility of that evidence in due course. Further evidence was then permitted to be given by Mr Edwards, upon the same basis. [4] Questions of credit loom large in these proceedings. The plaintiff gave her evidence, I thought, in a credible fashion, however it was elicited in cross- examination that she was jailed for several years in 1993 for offences arising out of activities on the part of herself and a male friend relating to stolen cars. These activities apparently involved the creation of false identity documents such as driving licences, foreign birth certificates, credit union cards and citizenship -- 3 of 15 -- 4 certificates. It is clear from this, in my view, that the plaintiff is perfectly capable of dishonesty when she considers that to be to her material advantage. [5] Nothing adverse is known about Pamela Noon. She also gave her evidence in a straightforward and credible fashion. Generally speaking I thought there was no reason to doubt the evidence that she gave. Dr Chan appeared to me to be more a witness with “attitude” than a witness who was less than honest. He did not have any particular memory of the events in question, which is understandable having regard to the number of patients he saw both here and in New Zealand, producing for him a very handsome annual income. He was questioned about his suspension by a Medical Practitioners Disciplinary Tribunal in New Zealand. It appeared that the proceedings before that Tribunal took place in September 1999 and he was suspended in that country for a period of nine months from the 23rd April 2001. He was also suspended in New South Wales and Queensland as a consequence of the New Zealand suspension. In relation to that he stated that he conducted the largest cosmetic practice in New Zealand and that the proceedings against him arose out of animosity on the part of various plastic surgeons who had arranged for some surveillance of his activities to be put in place and who canvassed for complaints against him. Many complaints made against him in New Zealand were, he said, solicited complaints, and in any event there is a high number of complaints in the area of cosmetic surgery. He referred to the “tall poppy” syndrome and stated that his earnings in New Zealand were about one million dollars per annum and he earned an additional one-half million dollars per annum in Australia. Dr Chan would not, in my view, readily concede that he had been in any way at fault with respect to any operation performed by him or advice given by him in relation to such an operation. The New Zealand proceedings against Dr Chan -- 4 of 15 -- 5 were not, in my view, relevant as “similar fact” evidence (see Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97) or on any other basis to any issue arising in the present proceedings between the plaintiff and Dr Chan. The New Zealand proceedings related to Dr Chan’s conduct in and about an operation which he performed on a patient in New Zealand on 30 May, 1996, and the complaints made against him in that matter bear some similarity to those made against him in these proceedings. Reference was made in the New Zealand proceedings to charges which had been brought against him in 1995 and 1996 which had resulted in findings of professional misconduct against him. The material is not sufficient however, in my opinion, to admit the record of the proceedings as evidence against Dr Chan. On the other hand the proceedings were admissible against the first defendant as going to the issue whether the first defendant was in breach of duty to the plaintiff in referring the plaintiff to Dr Chan, if it, in fact, did so. [6] Mark Edwards and the plaintiff gave evidence about their relationship which was contradictory not only on the topic of post-divorce sexual relations, each tending to accuse the other of various misdemeanours, and I formed the impression that Mr Edwards was there as it were, on a mission to destroy the plaintiff’s credit to the extent that he could. At one point in his cross-examination it was put to him that he had stated outside the courtroom to Warwick Marshall that, “I’m here to make sure she can’t fund any more games and escapades”. When this was put to him he initially did not deny it although he later sought to retreat from that position. Although the plaintiff is a witness not much deserving of credit I think that in general the same thing can be said about her former husband. The other witness, Warwick Marshall has been a police officer for 18 years and is a sergeant working with the Logan District Dog Squad. He gave evidence of having had a sexual -- 5 of 15 -- 6 relationship with the plaintiff since the operation on her breasts. He admitted that whilst working as a policeman he had had improper access to the plaintiff’s criminal history and that he knew that that was in contravention of his obligations as a policeman. [7] The plaintiff impressed me as a woman with a considerable interest in her body. I also thought that she was not lacking in libido, because of evidence that she had had a large gold ring with a big ball attached to it inserted in her clitoris. Although I do not think Mr Edwards is a witness deserving of much credit, and I have some reservations concerning Mr Marshall, I think that it is unlikely that the plaintiff would have abstained from sexual relations following the operation to her breasts to the extent she has claimed. Although she contends, and I think rightly, that the result of the operation was to leave her with breasts of an unnatural and somewhat grotesque appearance, when they were exposed to view, she also understood, as I gathered from her evidence, that many men did not find them unattractive when she was dressed normally and I doubt that her breasts would have reduced the opportunities she would otherwise have had to engage in sexual relations. The evidence indicates that the ring referred to above was inserted on 30 March 1999, and at the same time she had a tattoo done around her navel. [8] The plaintiff said in evidence that she arranged a meeting with Pamela Noon on behalf of the first defendant in late April of 1998 and that the meeting or consultation took place on the 1st May 1998. She stated that Ms Noon told her that she had vast experience in breast surgery and could refer her to a suitable doctor. The plaintiff told her about the problems with her breasts and told her that she did not want any procedure which involved cutting and stitches. She said that Ms Noon mentioned implant surgery where the incision and scar would be hidden by the fold -- 6 of 15 -- 7 of the breast. There was discussion about the implants available. The plaintiff indicated to her that she was at that stage a size 10B and wanted to revert to a size 12C which had been the position before she had had her two children. She explained that this meant that she wanted to be only one size larger. The plaintiff said that Pamela Noon asked her to obtain a photograph of the result she wanted in order to show the doctor who would perform the surgery and that she would see the doctor prior to any surgery. She was told that there was a fee of $6,150 to be paid in cash prior to the surgery taking place. She said that after she had left Ms Noon’s office Ms Noon telephoned her on the same day and said that Dr Chan would be available to do the surgery on the following Monday ie 4th May 1998, because there had been a cancellation and that otherwise there would be an eight week delay. [9] Ms Noon, on the other hand said that the plaintiff saw her on 1st May and that she already knew what she wanted, when she wanted it, and by whom the operation was to be performed. She stated that she wanted a breast implant the following week and she mentioned Dr Chan as the surgeon. She stated that her breasts had dropped and she was not interested in an uplift because of the scars that would be produced, but only an implant. An arrangement was made for her to see Dr Chan on the Monday and she stated that she could not see him for a prior consultation on the Sunday, but only on the Monday before the surgery. The time for the operation and the payment of money was discussed between them and Ms Noon says she did not see the plaintiff again until the 18th or 19th of July. The principal matter of significance which arises from these differing accounts is the plaintiff’s contention that Ms Noon made arrangements following the meeting for Dr Chan to carry out the surgery on the following Monday, and that she rang the plaintiff to advise her of this, whereas Ms Noon says that Dr Chan was selected by the plaintiff herself as the -- 7 of 15 -- 8 surgeon. It is sufficient to say that the onus of establishing that the first defendant’s agent recommended Dr Chan to the plaintiff lies upon the plaintiff, and that she has failed to satisfy me in that respect. [10] It seems that the plaintiff had made the financial arrangements prior to seeing Pamela Noon to pay for the operation which she wanted, she having ascertained the cost of the operation before hand by telephone. Arrangements had been made to borrow from the bank a sum of $10,000 to pay for the operation and for a holiday. However, I do not think it is legitimate to infer from this that the plaintiff would have had the operation no matter what might have been said about it by Ms Noon or by Dr Chan, as has been submitted. [11] The plaintiff said that Ms Noon had told her that the only risk attaching to an implant procedure was that the ‘skin” might not attach to the implants. Ms Noon said in evidence that she could not recall what she had said to the plaintiff concerning the risks of the operation and she had no recollection of giving any warning to her. She said that she gave the plaintiff no medical advice, and that she told the plaintiff that she would have a consultation with the doctor before the procedure was undertaken. Ms Noon said that part of her function was to explain the surgery in layman’s terms to interested clients, but that she gave no medical advice. I think it is possible or even likely that Ms Noon did indicate that an implant procedure was simple but I am not persuaded that she told the plaintiff, in effect, that the only complication which might occur was that the implants might not attach to the lining of the skin. I think it unlikely, in any event, that the plaintiff relied on any representations on the part of Ms Noon, knowing that she was to have a consultation about the procedure with Dr Chan prior to the operation. I think it is likely that the plaintiff knew before she saw Ms Noon that the operation which she -- 8 of 15 -- 9 wanted was the implant procedure rather than an uplift, because that form of procedure did not involve visible scarring. [12] It seems that of the total fee paid by the plaintiff of $6,100, $700 was paid to the company operating the day hospital known as the Cougal Street Surgicentre operated by a company in which Ms Noon also had an interest. Of the remaining $5,400, $1,400 was applied in purchase of the prostheses and the remaining $4,000 represented the surgical fee, a portion of which was kept by Clinical Beauty. Apparently Dr Chan presented Clinical Beauty with an invoice and he was paid the agreed amount. The amount retained by Clinical Beauty was for the services provided by it, ie. referring patients and arranging the operating list and theatre. [13] On Monday the 4th May 1998 the plaintiff went to the Cougal Street Surgicentre in Southport as arranged, to have the operation, taking with her a bank cheque for the amount required. She then completed various forms which are in evidence. Pre- operative photographs were taken of her breasts. She went into theatre and met Dr Chan for the first time. She showed him the photograph of breasts of the size and shape she desired in accordance with the advice which she had received from Pamela Noon. She said that Dr Chan’s response to this was to say that he would make her look better than the photograph. The plaintiff said that she then instructed him to proceed with the operation if he was confident that he could do that. There was some discussion of the incision to be made for the insertion of the implants, the incision to be made under the breasts. [14] The operation was then carried out. The plaintiff said she woke up later in great pain and was screaming and couldn’t breathe and her husband took her home. Pamela Noon telephoned over the next day or so and the plaintiff told her that she was very uncomfortable. Some two to three days after the operation she returned to -- 9 of 15 -- 10 Southport where the bandages were removed from her breasts and she was invited to view them in a mirror. The plaintiff said that they looked horrible and that she had also contracted some fungal infection. The main problem with the breasts appeared to be that the implants were sitting very high. She said that she saw Dr Chan and that he attempted to push them down and said that they would settle in about a month. He also said that the stitches were healing nicely. [15] The plaintiff returned on 19th July 1998 and her breasts were still in the same state, unflattering and uncomfortable. She said that Dr Chan agreed that further surgery would be required; that there would need to be removal of excess skin and this would involve cutting off the nipple and sewing it back on. He offered to do this just for the theatre costs of $1,500, waiving the balance of the fee which would normally be $3,500-$4,000. The plaintiff said she fled to the reception area where she saw Pamela Noon and told her what had happened. Pamela Noon suggested a second opinion, as a result of which she saw Dr Haertsch on the 29th July. He recommended another procedure to the plaintiff, a mastopexy, involving three incisions which would leave three large scars upon her breasts. Dr Haertsch told her that her breasts would be attractive, but only behind a bra. The plaintiff was unwilling at this stage to have such an operation. [16] Pamela Noon confirmed that she saw the plaintiff after the initial meeting with her on the 18th or 19th July and that she personally took the post-operation photographs which are in evidence. She confirmed that she had suggested the plaintiff consult Dr Haertsch for another opinion. After seeing Dr Haertsch’s notes she wrote to the plaintiff offering to refund the surgical cost of $4,000, an offer which was not accepted. She also offered to pay the cost of removing the implants and restoring the plaintiff’s breasts to their former state, an offer which was also not accepted. -- 10 of 15 -- 11 [17] As indicated earlier, Dr Chan has no actual recollection of the conversation with the plaintiff prior to the operation. In his view the ptosis suffered by the plaintiff was not a severe case. Her sagging breasts were caused by a lack of volume so that implants were the correct procedure, whether or not this was accompanied by skin reduction. He agreed that he had been dealt with by a tribunal in New Zealand in September 1999 and had been suspended from practice for nine months as from 23rd April 2001, a suspension which also became effective in New South Wales and Queensland. He agreed that a number of the complaints made against him in New Zealand were similar in substance to one of the complaints made by the plaintiff in this case, that is a failure to explain adequately the risks involved in the operation, in particular the risk that the operation might in fact produce an unflattering result. Dr Chan considered that he was the victim of a campaign against him by plastic surgeons in New Zealand. He did not recall being handed any photograph by the plaintiff on the day of the surgery. [18] I consider, on the balance of probabilities, that Dr Chan’s pre-operation consultation with the plaintiff was in fact inadequate, in that he did not take the time or trouble to explain in detail to the plaintiff the risks of a less than successful outcome associated with the procedure. It was his duty to explain to the plaintiff that the implant operation, particularly, without a mastopexy, might well not produce a good result, and moreover that it could produce a worse result, which is what in fact happened, in my opinion. The plaintiff says in effect that had she not been assured of a good result from a relatively simple implant procedure she would not have proceeded with the operation, and I see no reason to doubt the truth of that assertion. -- 11 of 15 -- 12 [19] It is also the case, in my opinion, that the medical evidence shows that the breast implants placed by Dr Chan were riding too high in the plaintiff’s breasts, and that is responsible for much of the grotesque appearance of the breasts in their present state. The evidence shows that, notwithstanding our assertion to the contrary by Dr Chan, the implants were placed sub-pectorally, rather than sub-glandularly. When placed sub-pectorally it appears that the position of the implants may change, and Dr Chan in fact expected them to drop which unfortunately did not happen. Why they do not drop is not explained in the evidence, except that it is not a result of capsulitis having occurred. Dr Haertsch offered the opinion that a “malplacement” of implants (by which I understand him to mean a placement which, in the event, does not produce a satisfactory result) does not of itself enable an inference of negligence to be drawn, this being a matter for the judgment of the surgeon. It is clear that the placing of the implants where they were has contributed to the most unsatisfactory result of the operation, but the medical evidence has not satisfied me that Dr Chan necessarily or in fact made an error of judgment in the placement of the implants, or that, if he did, one can infer from that a lack of due care on his part. [20] There is a suggestion from Dr Haertsch in his evidence that the placement of the implants is a matter of judgment, and that a malplacement does not of itself establish negligence. However the thrust of the medical reports and evidence is to the effect that in the case of the plaintiff’s breasts the implants would have to be placed lower to achieve an acceptable result and in my opinion this evidence justifies the conclusion that Dr Chan was negligent in performing the operation. The medical evidence is also to the effect that the appearance of the breasts in the photographs taken post-operatively continued to be the same at the trial. There is no doubt, in my opinion that this was a most unsatisfactory result for the plaintiff or -- 12 of 15 -- 13 for any woman who had had such an operation. In my opinion Dr Chan was in breach of his duty to fully inform the plaintiff of the risk associated with the procedure, to which I have already referred, and was further negligent in the performance of the operation, in that the implants were placed too high in the plaintiff’s breasts. [21] The plaintiff now says that she will have a mastopexy operation, which is an operation to tighten the skin around the breasts, or as it is more commonly called, an “uplift”. This does involve semi-circular scars around the nipple and lower breast and a vertical scar between them. This scarring is likely to be permanent. There was evidence that the approximate cost of that operation is $10,000. [22] The first defendant would, no doubt, be obliged, ex contractu, to exercise reasonable care in recommending a doctor to the plaintiff in this case. There is however no satisfactory evidence that Ms Noon was aware at that time of any negligent conduct of Dr Chan in other cases or that there was an unusually high level of complaint against him, that is, in addition to the level of complaint which practice in that area appears to attract. Moreover, as I have already indicated, I am not satisfied that Ms Noon did in fact recommend Dr Chan to the plaintiff. I regard it as at least equally probable that the plaintiff had herself selected Dr Chan to be the surgeon in her case. I therefore think that there has been no breach of contract or other breach of duty to the plaintiff on the part of the first defendant, or, at all events none that can be said to have caused or contributed to the damage suffered by the plaintiff. On the part of the second defendant however I think there was a breach of duty in failing to advise the plaintiff that there were risks that the operation might not produce the result which she desired. In fact the second defendant seems to have told the -- 13 of 15 -- 14 plaintiff that he could produce an even better result than she sought (an outcome which a study of the photograph in question suggests is unlikely). [23] The plaintiff was required to sign a form of consent prior to the operation on the 4th May 1998. That documents reads in part:- “I understand the nature of the operation and the risks involved have been explained to me. I also consent to the use of anaesthetics by or under the direction of Dr Chan. I am aware that the practice of medicine and surgery is not an exact science and that the results cannot be guaranteed. No such guarantee has been given to me as to the results of this procedure. I confirm that all risks, benefits and alternatives of the procedure have been explained to me and are fully understood by myself.” [24] It has not been argued that this document would provide a defence to the second defendant on the facts as I have found them. [25] The plaintiff is now prepared to have a mastopexy procedure although this involves the scarring which she initially wished to avoid. She should be placed at least in a position to have this operation done. In my opinion she should be placed financially in the position, so far as money can do it, in which she would be if the surgical procedure to her breasts had not been carried out. To achieve this she should recover the cost of the operation performed by Dr Chan and the cost of a further operation to restore her breasts to their previous state, by removal of the implants, which will leave her with some damage in the form of scarring under the fold of each breast. In my opinion she should receive a figure of about $13,000 to cover the cost of the operations (a figure which also takes into account the plaintiff’s entitlement to interest on the sum initially outlaid by her, and a further $2,000 in respect of the invisible scarring to her breasts. She ought also to be compensated for having undergone two operations with no benefit to herself and for having to -- 14 of 15 -- 15 endure for a period of about four years very unattractive breasts as a result of the second defendant’s conduct, which have caused her some embarrassment and some distress and interfered with her sleep. As indicated earlier I am not persuaded that the state of her breasts has had a marked effect upon her sex life. However in respect of the other matters I consider that it would be appropriate to award the plaintiff the sum of $25,000. [26] In my view no basis has been established for the award of aggravated or exemplary damages. [27] It has been submitted that:- “Mr Chan has been tried by the Medical Tribunal for his conduct prior to performing surgery. He has been suspended from practice as a result. The fact that he continued after those hearings and suspension to act in a similar manner found to be indicative of poor medical practice and treatment below an acceptable standard shows a contumelious disregard for the plaintiff’s rights.” [28] But the hearing and suspension referred to occurred after the second defendant operated on the plaintiff. It is true, as mentioned above that there was reference in those proceedings to earlier findings of professional misconduct against Mr Chan in 1995 and 1996 but not enough is known about those matters to support a claim for exemplary damages in the present case. . Indeed it appears that conditions initially imposed upon his right to practice were, in the end, permanently stayed. [29] In the result, the plaintiff’s claim against the first defendant is dismissed and there will be judgment against the second defendant in the sum of $40,000.00. -- 15 of 15 --