The Weekly Roundup: The Precedents Edition

• Published date: 23 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Mr Russell Wilcox and Henk Soede

It's been another busy week for cross border practitioners. In a cosmetic surgery claim, the facts of which will be all too familiar to those of us practising in the area, Forster J considered the standard to which the surgeon should be held, coming down firmly on the side of the consumer. Meanwhile, over in the Supreme Court, Bott & Co eventually succeeded in their long running dispute against Ryanair, which the court also appears to have considered to be a good result for consumers. Meanwhile, in other good news for Claimants, in Lambert v MIB [2022] 3 WLUK 208 the Claimant, a motorcyclist injured in the course of a track day in Spain, succeeded in his claim against the MIB (albeit with a reduction of 25% on account of contributory negligence). The judgment contains a handy guide to the Spanish law on assumption of responsibility. And in potentially worrying news for practitioners, in Greencastle v Payne [2022] 1 WLUK 478 permission for a Claimant to rely on witness statements was withdrawn due to the statements' failure to comply with the requirements of Practice Direction 57AC; the Claimant was, however, granted permission to rely on replacement statements subject to compliance. This is the latest in a string of cases emphasising the importance of drafting compliant witness statements: you have been warned.

Local Standards in Cosmetic Surgery Cases: does the Rule in Lougheed Apply?

In Clarke v Kalecinski & Ors [2022] EWHC 488 (QB) the High Court was asked to determine a claim for personal injury suffered a result of cosmetic surgery undertaken in Poland. The Claimant brought actions in contract (to which English law applied) and tort (to which Polish law applied) against the operating surgeon ('D1'); the clinic where the operations were carried out and where the Claimant received pre- and post-operative treatment ('D2'); and the insurer of the clinic ('D3'). The decision is a must-read for those involved with claims concerning medical negligence abroad.

Background

In or around the summer of 2014, the Claimant sought breast augmentation and uplift and thigh liposuction procedures. She conducted internet research and found europesurgery.uk.com, which advertised consultations in England followed by surgery in Poland provided by UK-trained, UK-registered surgeons, most prominent among them, D1: [34]. The Claimant's evidence was that she was reassured by the suggestion that D1 used to practice in the NHS and was registered with the GMC: [37]. The contract was agreed with the agents of D2, who were based in England: [45] and [80]. There was an initial consultation in London with D1 and the Claimant subsequently travelled to Poland to undertake the surgery.

After the surgery, the Claimant reported symptoms indicative of sepsis. The Claimant attended the clinic a number of times about these symptoms but she was not provided with adequate post-operative care: see [48] - [52] for further detail. The Claimant attended the clinic again with a fever and agonising pain and ultimately D1 removed the implants and drains were put in. After the remedial surgery, however, the Claimant's symptoms persisted, and she was unable to contact the emergency numbers that were given to her. The Claimant decided she needed to go back to the UK despite her the fact that her condition was increasingly severe. Upon her arrival, the Claimant's mother took her immediately to A&E, where she was diagnosed with severe and potentially life-threatening sepsis. The Claimant underwent immediate surgery to clean the wounds and further surgeries thereafter to remove the necrotic and infected tissue. The Claimant later underwent reconstructive breast surgery.

The Claimant brought...