Roger Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors

Damages for negligent cosmetic surgery are assessed by reference to the claimant’s actual physical and psychological injury. The Judicial College Guidelines are not definitive where the injury falls outside their categories or exceeds their factual scope.

Where services are rendered wholly valueless by negligence, the cost of those services may be recoverable as wasted expenditure. This may apply even where restoration to the position preceding the breach is impossible. Gratuitous care provided by a family member should be discounted to reflect its non-commercial nature.

This was an assessment of damages arising from cosmetic surgery performed in Poland. Liability for the insurers had been conclusively determined by default judgment, and the remaining issue concerned the amount of damages recoverable by the executor of the deceased patient’s estate.

The claims included damages for pain, suffering and loss of amenity, past care and assistance, medical travel, and the cost of the surgery and related travel to Poland. The court also noted a separate unresolved issue concerning whether the policy indemnity limit included the costs of the proceedings.

1. General damages. The top bracket for non-facial scarring in the Judicial College Guidelines did not reflect the extensive disfigurement, disabling physical injuries and psychological harm suffered. The injury therefore fell outside that bracket. General damages were assessed at £37,500.
2. Past care and travel. The claimed level of personal care and the rates used were reasonable estimates of the additional care provided. A 25% deduction was made because the care was gratuitous and non-commercial. Medical travel expenses were allowed as claimed.
3. Cost of surgery and associated travel. The distinction between contractual and tortious damages was relevant. Contract damages ordinarily seek to place the claimant in the position they would have occupied had the contract been performed, while tort damages seek, so far as possible, to restore the status quo. Neither measure could literally restore the deceased to her pre-surgery condition.
4. The surgery was so poor that it was valueless. The deceased received no benefit and suffered only detriment. The cost of the surgery and associated travel and accommodation could therefore be recovered as wasted expenditure. The court relied on the reasoning in Jackson and Powell Professional Negligence and, alternatively, on Grange v Quinn [2013] EWCA Civ 24.
5. The parties agreed the total assessed sum at £69,348. A draft order was to be submitted, together with directions for the outstanding issue concerning the policy indemnity limit.

The judgment records that an appeal against Master Thornett’s order of 1 November 2021 was dismissed by Foster J on 3 May 2023. The present judgment concerned the subsequent assessment of damages.