Xie Qiuyun v Arche Beauty Therapy Ltd [2015] HKEC 2709

Implications

The District Court in Hong Kong held that whilst a duty of care was owed by the defendant to the plaintiff to perform the services of a beauty clinic with reasonable skill and care, there was no broader duty in the nature of that to be expected for medical, nursing or healthcare providers. Both parties had instructed medically qualified experts to support their respective cases but the court could not apply either of those experts’ opinions to the treatment of a non-medically qualified beauty clinic staff member.

In the absence of any evidence of what a reasonable / responsible / respectable body of laser therapists / technicians working in a beauty clinic would do in circumstances similar to those in the present case, the court found no evidence of a breach of duty. To find a breach of duty would have required evidence of glaring and obvious mistakes in the defendant beauty clinic’s acts or omissions, which would not have been made by any careful person of whatever profession.

Whilst the case provides useful guidance as to the current standards of care owed to patients by non-medically qualified staff providing cosmetic services in beauty clinics, the law in this area is fast developing. It is anticipated legislation will be implemented imminently and, if there becomes tighter regulation of the cosmetic services industry, it may follow that there will be stricter requirements on providers of beauty services.

The case also emphasises the importance of parties selecting an appropriate expert in the same discipline as that of the alleged tortfeasor, in order to successfully prove or defend claims in negligence.

Background

On 22 June 2009 the plaintiff attended the defendant beauty clinic to discuss treatment for brownish pigmentations to her face following a chemical peel treatment. Then followed a discussion regarding laser treatment, which was to be performed at a later date as, on the defendant’s case, the plaintiff was not suitable for treatment that day.

The plaintiff returned to the defendant on 01 August 2009 and underwent a series of laser and chemical peel treatments. The plaintiff raised various allegations of negligence including claiming the defendant’s staff performed the laser treatment without warning her of the risks involved and failed, in all the circumstances, to provide appropriate and skilful treatment, exposing her to an unnecessary risk of injury and disfigurement. All allegations were denied by the defendant. The defendant’s case was the treatments were provided after the defendant made a comprehensive enquiry and assessment of the plaintiff’s skin condition, discussed the various options available and the nature and side effects of the treatment.

Decision

The District Court found, contrary to the plaintiff’s evidence that she was never told of any potential side effects of laser treatment, she agreed and signed an enquiry form for the treatment. The judge commented that the plaintiff was a poor witness and, as to reliability, one of the worst he had come across in his professional career. The court therefore concluded that the plaintiff, prior to receiving the first laser treatments, was advised of and explained the nature, risks and possible side effects of treatment. The court also found there was no evidence to suggest the defendant had failed to provide appropriate and skilful treatment, nor had they exposed the plaintiff to an unnecessary risk of injury and disfigurement.

More importantly, the court said it was unable to apply the Bolam test when considering the reasonableness of the defendant’s actions, as neither party had adduced evidence of what a reasonable/responsible/respectable body of laser therapists/technicians working in a beauty clinic would do, distinguishing the treatment from that of medical/health treatment. As the court could not rely on the plaintiff’s expert, a specialist in dermatology, nor the defendant’s expert, a specialist in plastic surgery, both being medically qualified, the court was required to look for any glaring and obvious mistakes in the defendant’s acts and omissions, which would not have been made by any careful person of whatever profession. The court found no such obvious mistakes.

On causation, the court found that as the defendant had explained the range of treatment options available and the side effects of laser treatment, which included the risk of the nature of the injury sustained, the plaintiff had validly consented to the treatment and it would be almost inescapable to hold that the plaintiff had not given informed consent. The court therefore held that there was no causation of injury, emphasising the importance of consent taking for all cosmetic treatment providers, even in circumstances which the court says were distinguishable from medical/health services.