Kashi (t/a Tantalizing Face and Body Clinic) v Mustafa

This is an appeal from an order made on 3 May 2011 at Kingston-upon-Thames County Court by Her Honour Judge Williams, by which she held the defendant liable for burns caused to the claimant’s neck and face, during what she found to be the negligent provision of laser hair removal treatment received at his clinic. The learned Judge ordered the defendant to pay damages in the sum of £2,653.98, including interest, together with costs, which were summarily assessed at £22,653.98 (including a CFA uplift).

On 13 June 2011, Mr Justice Eady granted the defendant permission to appeal against that order and to adduce further evidence. Although he is the appellant before me, I will for convenience refer to him as the defendant; similarly, I will refer to the respondent before me as the claimant.

On 28 June 2011, Mr Justice Spencer granted the claimant an extension of time to file a respondent’s notice but refused the claimant’s application to set aside the permission for the defendant to adduce fresh evidence on the ground that the court would decide whether in fact to take account of that evidence at this hearing and that all that had been granted by Mr Justice Eady was permission to adduce that evidence.

The background facts can be seen from the terms of the judgment below and can be summarised briefly here:

A summary of the Judge’s principal findings of fact going to the question of liability is to be found at paragraph 25 of her judgment:

“So I do find that this defendant offered laser treatment services. It is clear from his appointment cards. I do find, on the claimant’s evidence, that Mrs Kashi quoted £90 for each of three sessions and carried out the work as set out; and, further, that the claimant paid three times £90 for those three sessions. I find that the claimant turned up on 26^th April, found that Mrs Kashi was not there and that she had to re-schedule her appointment and therefore made it for early May. Mrs Kashi was in Italy. The burns occurred on or about 5^th May, as set out, through the negligent use of a laser facial hair removal machine, and to that extent the claimant succeeds today in establishing the defendant’s liability.”

The defendant now advances five grounds of appeal before this Court.

The first ground of appeal alleges that the Judge erred in law in relation to both the burden and the standard of proof in this case. I reject that contention.

I am unable to accept the suggestion that the learned Judge misunderstood the burden of proof in a case of this type. At paragraph 9 of her judgment she stated in terms that:

“It is of course for the claimant to prove her case…….”

In relation to the standard of proof, the Judge directed herself at paragraph 8 that she had to apply the civil standard of proof and observed that standard is “the balance of probabilities.”

She continued as follows:

“In other words I have two versions of events, effectively, and I have to decide which version is the more likely. In doing so, I can take into account my assessment of the credibility of the witnesses – their believability, if you like – and to prefer the evidence of one witness over another. It has to be that way because we need to have a decision today. Of course I was not there and so I do not know what happened. I have to interpret from the evidence I have what actually occurred.”

In advancing this ground of appeal the defendant submits that the Judge failed to apply or understand correctly the legal concept of a balance of probabilities. In this context my attention has been drawn in particular to a passage in the decision of the House of Lords in Rhesa Shipping SA v Edmunds [1985] 1 WLR 948, at page 951 A-D, in the speech of Lord Brandon of Oakbrook:

“the appeal does not raise any question of law except possibly the question of what is meant by proof of a case ‘on a balance of probabilities.’ Nor do underwriters challenge before your Lordships any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on a balance of probabilities, lost by perils of the sea.

In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose not to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

The second matter is that it is always open to a court, even after the kind of prolonged enquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.”

My attention was also drawn by the appellant to a further passage in the speech of Lord Brandon at page 954 D-F. In that passage Lord Brandon made it clear that it was not sufficient for a trial judge merely to have referred to the concept of the burden of proof earlier in a judgment, since it was conceivable that later in a judgment the judge may have failed to give any consideration to the possibility that there was doubt as to the proximate cause of a ship’s loss and that, in those circumstances, the shipowners’ actions should be dismissed on the ground that they had not discharged the burden of proof which lay upon them.

Helpful though those statements of general principle are I do not in the end believe that they advance the defendant’s submissions in the particular case before me. It seems to me that everything depends upon the context. I remind myself that in relation to questions of this sort the trial Judge was not sitting an exam paper nor was she required to set out an academic dissertation on the legal concepts of burden and standard of proof. She was required to direct herself correctly as to those concepts having regard to the issues in the particular case before her. In my judgment that is precisely what she did and I can see no basis for interfering with her judgment in this respect.

The second ground of appeal in this case alleges that the Judge erred in fact in determining the date of the treatment to be 5 May 2007. As I have already indicated the claim form had alleged that the incident occurred on, or around, 3 May 2007. At the trial it became clear, and was undisputed, that, since the defendant and Mrs Kashi were in Italy until 3 May 2007, the incident could not have occurred on that date. It is relevant at this stage to quote more fully from paragraph 9 of the trial Judge’s judgment. She found the claimant to be:

“a clear and straightforward witness. She recalls her visits to the salon, the layout of the salon and some minor details such as the certificates gained by Mrs Kashi being displayed. She gave some information about the machine which she said caused her injuries. There were some doubts over dates initially – whether she attended for her third treatment on the 3^rd or 5^th May 2007 – but she was supported ultimately in establishing the date by her mother; also by one of the defendant’s appointment cards on which was written 5^th May; and, perhaps more particularly, by her visit to the accident and emergency department at Kingston Hospital, details of which I have seen and I note she attended on 5^th May at five minutes to midnight.”

Both sides before me relied upon the decision of the House of Lords in Watt v Thomas [1947] AC 484. I remind myself of the following passage in the speech of Viscount Simon at page 486:

“the true rule is that expounded by Lord President Inglis in Kinnell v Peebles that a court of appeal should ‘attach the greatest weight to the opinion of the Judge who saw the witnesses and heard their evidence’ and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.”

I was also reminded of the speech of Lord Thankerton at pages 487-488.

Returning to the present case it seems to me to be impossible to interfere with the trial Judge’s finding of fact in relation to the date on which the incident occurred. There was evidence to support that finding, as the Judge summarised in her judgment, including evidence not only from the claimant herself but also from her mother and documentary evidence. It may well be that there was evidence which tended to point in another direction but that will often be the case where there is a factual dispute. This is precisely the kind of factual dispute which it is the function of first instance courts and tribunals to resolve, with the advantage they have of seeing the witnesses and hearing their evidence.

In particular, I remind myself that the trial Judge obviously found the claimant in this case to be an impressive witness. I refer to what she said about that at paragraph 9 of her judgment, which I have already quoted, and again at paragraph 23:

“In relation to the claimant’s credibility, I was satisfied with her evidence. There were some small areas of confusion which I have mentioned, but they were largely resolved and did not affect the main thrust of her evidence. Having considered her evidence, I would be unable to find that she had made the whole thing up, as I am asked to do by the defendant. Further, it seems to me that it is highly improbable that she did so, particularly given the documents in support that I have seen and have referred to.”

In relation to that documentary evidence, at paragraph 24 of her judgment the trial Judge noted in particular that the claimant’s evidence was supported by GP notes, by the accident and emergency notes and concluded that:

“she did suffer burns, on, or about 5^th May and I am satisfied that it happened as she described.”

Although the brief details as set out in the claim form had specified that the alleged incident had taken place on 3 May 2007, it would have been clear to a reasonable person that in fact the claimant was not making such a precise allegation. As I have already noted, her Particulars of Claim, at paragraph 1, alleged that the incident took place “on or about 3 May 2007.” Furthermore, her witness statement, which was dated 22 September 2010 and was, therefore, available many months before the date of trial, made it clear, at paragraph 10, that she was in fact alleging that the date of the incident was 5 May 2007. It should also be noted that the claimant’s mother’s witness statement, also dated 22 September 2010, said, at paragraph 6, that: “On or around the 5 May 2007, I can confirm that my daughter called me after her third treatment at the salon. She was crying so I arranged to meet her outside of the school she was attending at the time as she had a lesson to attend following her appointment. When I saw my daughter, I was horrified to see her face as I noticed red marks which went down on to her neck.”

In my judgment the trial Judge was entitled to make the finding of fact that she did as to the date of the incident on the evidence before her.

The defendant’s third ground of appeal again asserts that the learned Judge fell into error in relation to the relevant date being 5 May 2007 and, for this purpose, seeks to adduce additional evidence. It was common ground before me that, although permission to adduce the evidence was initially granted by Mr Justice Eady on 13 June 2011, I should only have regard to it on this appeal in accordance with well known principles which govern the admissibility of fresh evidence on an appeal and, in particular, that I should have regard to the principles in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489.

The additional evidence which the defendant seeks to rely upon consists of transaction statements from his clinic’s card machine. The defendant asserts that what the transaction statements show is which card transactions took place between 28 April and 11 May 2007 and that the only payment in the sum of £90 in that period occurred on 3 May 2007. In my judgment there is a basic obstacle which stands in the way of the defendant’s wish to rely upon this as fresh evidence in accordance with the principles in Ladd v Marshall.

As the defendant accepts, this is not new evidence and it is evidence which could have been adduced at trial in this action. In my view, it should reasonably have been adduced before, and certainly by the time of, the trial.

It was submitted on behalf of the defendant that he had been misled by a document which had been produced by the claimant and, in particular, by the way in which it had been redacted. This was a statement from Barclays Bank dated 17 May 2007: the way in which it was redacted could have given the impression that the date on which a credit card payment in the sum of £90 was made to Tantalize was 3 May 2007, whereas the unredacted version of the document showed that the date shown against the relevant payment was 8 May. That unredacted version of the document was only shown to the defendant at the trial.

Although this procedural history was unfortunate, it does not lead to the conclusion that the normal principles in Ladd v Marshall should be departed from. In my view, the defendant could, and reasonably should, have produced all the credit card transactions from the relevant time. Whether or not this was required by his duty of general disclosure in the action, and I am inclined to think that it was as the claimant has asserted before me, it would have been in his own interests to examine those transaction statements and to bring to the attention of the trial Judge any relevant ones, as he now seeks to do before this Court on appeal. In this context, I bear in mind that the defendant did have access to legal advice at an earlier state in the litigation, although he appeared in person at the trial.

Accordingly, I do not consider that the evidence which the defendant now seeks to rely upon should be admitted under the principles in Ladd v Marshall nor do I consider that fairness more generally requires it.

The fourth ground of appeal advanced by the defendant is that the trial Judge committed a serious procedural irregularity in this case. It is contended that the trial Judge should have permitted the defendant to cross-examine the claimant after his closing submissions. This would have required the claimant to be recalled as she had already been cross-examined by the defendant. In his closing submissions, the defendant pointed out that 5 May 2007 was a Saturday and, therefore, he asserted that the claimant could not have been attending school on the day of the incident, as she alleged at trial. At paragraph 20 of her judgment the learned Judge said:

“One point that the defendant made in his submissions that was potentially important, was that he said 5^th May 2007 was a Saturday. The claimant had given evidence that she should have been at school; that she was going to school for an additional lecture at 5.00pm that day; and that her mother had met her there and seen the burns that she had on her face and neck and had said that she did not have to go to school.”

The learned Judge continued at paragraph 21:

“Now unfortunately, and this is partially because the defendant is a litigant in person, he had not asked her about this in cross-examination. I decided it was too late to re-open the evidence post-submissions – something which I would have to have done for the second time, having done so in relation to the appointment on 26^th April.”

In my judgment the defendant has not succeeded in demonstrating that there was a serious procedural irregularity on the part of the trial Judge in this respect.

At paragraph 22 the Judge said:

“The point goes to the claimant’s credibility only, and there may well be a credible explanation for this.”

As I have already said, the Judge concluded at paragraph 23 that in relation to the claimant’s credibility she was satisfied with her evidence.

The trial Judge had already departed from the normal course in a trial by permitting the defendant to make his closing submissions after the closing submissions made on behalf of the claimant. She did this in recognition of the fact that he was a litigant in person. As noted at paragraph 21 of her judgment, she had already re-opened the evidence of the claimant once, which was also a departure from normal procedure.

The appropriate management of a trial, in particular on issues of procedure, is classically a function of the trial judge and an appellate court would normally only intervene if there has been an error of principle or manifest unfairness. In the present case, there was no error of principle by the Judge in the exercise of her discretion. I cannot detect any manifest unfairness.

Although the defendant was acting in person, he had had access to legal advice at an earlier stage and could, if he had chosen, have had legal representation at the trial. Moreover, he had had the opportunity to cross-examine the claimant and indeed had done so at the trial. If he forgot to cross-examine her in relation to the suggestion that 5 May was a Saturday and, therefore, that she could not have been at school that day, he is not necessarily to be criticised for that, especially as he was a litigant in person. However, he was alive to the importance of the point on the day of the trial and he could have cross-examined the claimant about it when he had the opportunity to ask her questions. The trial Judge cannot be criticised for exercising her discretion not to allow further cross-examination after the defendant’s closing submissions. I also note, in this context, that, if she had taken that unusual course, she would probably also have had to ask for the claimant’s mother to be recalled for cross-examination on this point. This is because she also gave evidence that on the date of the incident the claimant was attending school: see paragraph 6 of her witness statement, from which I have quoted earlier.

The fifth ground of appeal is that the learned Judge erred in surmising, as she put it, at paragraph 24 of her judgment that the defendant must have had some form of laser machine on the premises operated by Mrs Kashi, whether the defendant knew it or not. It is submitted that the Judge should have based her findings on evidence and not surmise.

In my view, all that the Judge meant when she used the word “surmise” was that, in the light of all the other findings she had made, on which she preferred the evidence on behalf of the claimant, it would follow that there must have been a laser machine at the defendant’s clinic at the time of the incident. The essential issue of fact which was in dispute at the trial was whether there was such a machine or not at the date of the alleged incident: the defendant had maintained throughout that such a machine was acquired only later in 2007. The clear implication of the trial Judge’s findings was that she did not accept that contention.

In my judgment this was a pure question of fact. The learned Judge was entitled to come to the conclusion which she did in the light of all the evidence she had heard at trial.

For the reasons I have given, this appeal is dismissed.