The plaintiff must always have proof

Even in a seemingly obvious case of negligence, the accuser must provide appropriate evidence in order to win. 

Not every act of harm is negligent, just as not every negligent act is harmful. An assessment relies on the context, the degree or the weight of the evidence. What is certain is that it is for the plaintiffs to prove their case. Recently, a court dismissed a negligence claim relating to cosmetic laser treatment for lack of evidence.

The 38-year-old female plaintiff elected to undertake cosmetic laser treatment to her facial skin. A description of the procedure was “a non-surgical or non-invasive 60-minute facelift”, or facial skin rejuvenation. During each treatment, laser energy and heat was transmitted to the dermal junction of the underlying structures of the facial skin to promote tightening of the skin in the applied areas. The plaintiff underwent five treatments but it was on the last occasion that she suffered facial burns, which caused pain, redness, swelling, blistering and finally scarring to her face. Non-medically trained staff administered the laser treatments after receiving training from the manufacturers of the lasers.

The plaintiff made a number of allegations of negligence against the dermatological business that provided the treatment, including failing to administer the treatment safely and competently, failing to properly operate the laser equipment, failing to test the temperature of the laser, failing to warn of the risk of permanent scarring and failing to promptly treat the plaintiff’s burns. The defendant raised a number defences to the action, including denying that it employed skin specialists to provide skin-related treatments and stating that it was not negligent.

There is no doubt whatsoever that the plaintiff, as a result of the last procedure (or an accumulation of all the treatments), suffered facial burns, ultimately permanent scarring and mental trauma diagnosed as an adjustment disorder with mixed anxiety and depressed mood. The ordinary person in the street would not only feel sympathy for the plaintiff but feel it only fair and just that she receive compensation for what has occurred to her. After all, through no fault of her own and having paid for the treatments she has ended up scarred for life and therefore must be deserving.

The trial judge stated that the plaintiff carried the evidentiary burden of proof and that “it is the avoidability of the adverse result, had reasonable care been taken, that gives rise to a damages award, not the untoward result [i.e. the burns and scarring] itself”.

The evidence was that the treatment in question could potentially cause burning and facial scarring. However, when such adverse results eventuate as they did here, these of themselves do not necessarily bespeak negligence where a mechanical or scientific process is being used. In light of the evidence that such a result is possible, this was not a case where the plaintiff was able to show that her injury would not have occurred without negligence so as to infer that negligence was the cause of her injury. The judge stated that, although it could reasonably be inferred that the plaintiff’s burns resulted from the application of the laser, in order to prove negligence, she was required to show that the “temperature setting was inappropriate”. The judge was of the view that the evidence of the business owner that the temperature of the laser had been the same as for previous treatments could not be rejected “by a process of inference by reference to the burns, without a reasoned basis in the evidence”. His Honour stated that something more was required and that “is usually provided by expert evidence”.

The trial judge described as remarkable the decision of the plaintiff not to call any evidence, especially expert, to identify what constituted a safe and competent standard of treatment to be expected of a clinic of the kind in question. As the judge stated, it was for the plaintiff to show that the adverse outcome she experienced was due to a departure from the required standard of care. This was not a situation for drawing inferences (adverse) where the evidence of the business owner was that the temperature setting was the same as with the previous treatments provided to the plaintiff. The court stated that in this case, that evidence cannot be rejected by a process of inference by reference to the burns, without a reasoned basis in the evidence. Something more is required. Again, this is usually provided by expert evidence. On the state of the evidence, the judge could not see a proper basis for an inference sought by the plaintiff.

The judge made comments concerning the nature and standard of the duty owed to the plaintiff “as this was not a medical procedure, treatment or clinic; it was a dermatology clinic”. The plaintiff argued that the scope of the duty of care owed to her was similar to that owed by a doctor to a patient. The judge felt this formulation was an overstatement of the duty owed as the centre was not a place where medical treatment was provided. “However, the plaintiff was clearly owed a duty that reasonable care would be taken … in the performance of the treatment she agreed to have.”

It is a forceful argument to say that nurses who work in such practices should not place too much reliance on this case. Firstly, they do have training in the health sciences and hence are distinguishable from the staff in this case, but more pertinently, if expert evidence had been presented by the plaintiff one could very easily see the reverse in outcome. However, without “technical expert evidence”, the judge was unable to conclude that the laser had been administered negligently, including that the temperature setting had been too high.

This case clearly demonstrates in the starkest of manners that “he/she who asserts, must prove”.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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