Giles v Chambers

In elective cosmetic surgery claims, the court must first determine what procedure the patient requested and the doctor agreed to perform. If the treatment provided was materially different and inappropriate, breach of duty may be established without resolving the detailed standard of care applicable to the treatment that was requested. Causation is assessed by asking whether the agreed, measured treatment would probably have avoided the injury. A poor cosmetic result alone does not establish negligence, but it may be powerful evidence when considered with the records, consent process and expert evidence. Pre-existing psychiatric vulnerability does not prevent recovery for consequences materially caused by the negligent treatment.

The claimant underwent VASER liposuction at the defendant’s private clinic. She alleged that she had requested modest contouring to achieve a more feminine appearance, but that the defendant instead performed extensive high-definition liposuction involving substantial fat removal. Liability was pursued in contract and tort. The principal issues were the agreed scope of treatment, whether the procedure was performed negligently, causation, admissibility and weight of the defendant’s expert evidence, and damages.

The court found that the claimant had not requested a sculptured and muscular high-definition appearance. The central issue was whether the unrequested treatment caused the physical, cosmetic and psychiatric consequences claimed.

1. The claim succeeded. The court found, on the balance of probabilities, that the claimant had requested selected and moderate fat removal to create a more feminine appearance and thigh gap. She had not agreed to extensive high-definition liposuction exposing the muscles. The contemporaneous records, consent discussion and absence of any recorded warning against the allegedly requested appearance supported that conclusion.

2. Providing a materially different and inappropriate cosmetic procedure established negligence and breach of contract, subject to causation. It was unnecessary to determine in detail whether the high-definition procedure, considered in isolation, satisfied the applicable standard of care.

3. The court nevertheless observed that ultrasound was useful for sectional assessment but insufficient on its own to establish a continuous circumferential fat layer. Visual and palpable assessment was also necessary. Had the issue required determination, the court would have found that the defendant failed to leave a continuous subcutaneous fat layer.

4. The claimant proved causation. The more extensive and aggressive procedure materially increased the relevant risks. A measured degree of liposuction applied to selected areas would probably have avoided the highly unsatisfactory cosmetic outcome, the need for extensive revision surgery and the resulting psychiatric consequences.

5. The evidence of Dr Glancey was admitted, but its weight was reduced because her professional connection with the defendant affected her independence and objectivity. The court rejected the remaining criticisms concerning overnight facilities, hospital referral and general after-care as either unproved or non-causative.

6. Damages were assessed at £50,000 for general damages, £63,186.07 for past losses and £38,490.40 for future losses, subject to the stated interest calculations. The cost of the original procedure was not recoverable as a separate refund. The judgment invited the parties to agree the final order and check the arithmetic.