Giles v Chambers

This court is concerned with a claim for damages in relation to alleged negligent cosmetic surgery which the Claimant, Tracey Giles, underwent at the private clinic of the Defendant, Dr Alexandra Chambers, in August 2012 for the VASER liposuction removal of fat from her thighs and buttocks. Liability, including breach of duty and causation are in dispute, as is the quantum of damages in relation to both past and future loss. The claim is brought in both contract and tort, although the duties owed in both respects are analogous, and it is accepted that the court approaches the question of breach on entirely the same basis.

At the outset of the case, an issue arose as to the entitlement of the Defendant to rely upon expert evidence. The earlier case management direction of the Master provided for the reliance by both parties on a plastic surgeon as an expert. Whilst the Defendant had indicated to the Claimant the instruction of an expert in such a discipline, when a report was eventually provided, it came from a cosmetic surgeon, essentially a medical practitioner who specialises in the provision of cosmetic and aesthetic treatments, Dr Lucy Glancey. “Cosmetic surgery” is not yet recognised as a regulated branch of medicine by the General Medical Council. The Claimant’s solicitors did not initially object to the engagement of Dr Glancey with their own instructed expert, Mr Nishikawa, who is a plastic surgeon, and a joint report was commissioned identifying the extent of their disagreement on the main issues in the case. Only a few weeks before the trial, however, after further enquiry by the Claimant’s solicitors, detailed objections to the admissibility of this evidence were raised, not only because permission had not been given for a cosmetic surgeon/medical practitioner, but also because there appeared to be a professional relationship between Dr Glancey and the Defendant Dr Chambers. They are both active members of BABS, the British Association of Body Sculpting, and appear to work often from the same premises.

The respective submissions of both parties through counsel were provided on the expert evidence admissibility issue, and although no concessions were made on behalf of the Claimant, the sensible approach was adopted, in view of the potential disruption for the trial timetable, of allowing the evidence of Dr Glancey to be heard and challenged (with the potential conflicts of interest explored) and the postponement of the argument to the conclusion of the case.

As it transpired, because the other evidence took longer than expected, Dr Glancey was unavailable for attending the intended final day of the hearing (Friday) and a further two days was arranged for the convenience of counsel and the court. Otherwise, evidence and submissions were heard over six days, and I reserved my judgment which is now provided.

I shall deal first with the background circumstances, and the uncontroversial facts, including the aftermath of the procedure. I shall also identify the discrete factual disputes, before addressing the evidence relevant to those disputes.

The Claimant, who is 52 years of age, has spent most of her life in the beauty profession qualifying as a beauty therapist many years ago, and eventually having her own business in London. She specialises in bespoke treatment involving permanent or tattooed make up and has established a national reputation in this field, which has exposed her to some media publicity. She has a profile where physical appearance and attractiveness is of great subjective importance, and over the years this has led to the Claimant undergoing a number of cosmetic treatments to the face and body, including breast augmentation, rhinoplasty, blepharoplasty, liposuction to the lower limbs and tummy, and a facelift. She had also maintained a level of physical fitness, and indeed practised in and instructed yoga and fitness training. The Claimant’s previous treatments had been successful, save for an abdominoplasty which had led to a severe wound infection.

For a large part of her recent adult life, the Claimant has had mental health issues centred around depression and anxiety which have required pharmacological and psychological therapies, including treatment in a private hospital (the Priory). The mental health history is relevant to the claim for pain, suffering and loss of amenity, because it is alleged that the treatment at the hands of the Defendant led to a significant adjustment disorder and exacerbation of pre-existing depressive state. It is explored in more detail later in this judgment. Further, whilst there is no suggestion that the Claimant had a form of body dysmorphia, or that previous cosmetic procedures and the chosen VASER liposuction were consequential upon mental ill-health misjudgement, the psychiatric history was the subject of extensive questioning by counsel because of her potential vulnerability and because it is the Defendant’s case that she was completely unaware of this history. An issue arises as to whether it should have been disclosed by the Claimant, or explored in more detail by the Defendant.

The Defendant and the Claimant were known to each other, as their clinics were in close proximity in Harley Street, and they had previously been introduced. The Claimant knew somebody who had undergone VASER liposuction with the Defendant which had been very successful, and she was interested in some further treatment for herself. She had begun to notice some cellulite on her legs and thighs, as well as her upper arms, and although confident when wearing a bikini, she desired what she perceived as a more feminine look with a gap between the thighs, and more slender legs. The VASER liposuction was a fairly new procedure at which the Defendant was at the forefront in terms of pioneering and was considered less invasive than traditional liposuction. VASER is short for vibration amplification of sound, energy and resonance and involves the application of ultrasound energy to break down fat cells which are subsequently aspirated. Traditional liposuction uses a suction method without breaking down fat cells initially, and is a single process, as opposed to the twofold process involved with VASER.

The first consultation, which was conducted without charge, took place on 26^th January 2012 in the Defendant’s consulting room. There was extensive discussion about the benefits of VASER which the Defendant herself had undergone successfully, although she told the Claimant that there would be painful consequences in the aftermath. There is a significant dispute about the desired outcome which was communicated by the Claimant and which I shall deal with below, in particular whether it was to involve modest contouring and reshaping of the legs and buttocks or a more dramatic high definition fat removal. The Claimant was shown images from case studies, when the desired outcome was discussed.

After this discussion the Claimant was taken to another room where the fat was measured in the areas which she desired to be treated, by means of an ultrasound scan. The Defendant had a clinical assistant, Victoria Virtosu, who recorded much of the information including the physical and ultrasound measurements on the available records, and the Defendant herself completed her clinical consultation notes on her computer. Although there was a field available for free text, insofar as there are shortcomings and inaccuracies, which will be explored later, the Defendant accepted that for many consultations because she was so busy, she would cut and paste from other similar cases.

The Defendant provided a price for the Claimant in relation to the lower limb aspect only. The Claimant did not believe that she could afford to have her arms treated at the same time, and decided to wait until her legs and buttocks were treated at some point. An option of the application of gold threads to provide more elasticity to the skin was discussed, but declined for the time being by the Claimant. The total cost was £7027.50 and included on a document with some handwritten endorsements as to alternative costs for arms and gold thread. There is a dispute as to whether this document was supplied. (Bundle 2 at page 682)

Following the consultation in January the Claimant went away to think about it. In the meantime, she underwent some Botox treatment with the Defendant which was entirely satisfactory, and this enabled her to have confidence in the Defendant and her clinic. She decided to go ahead, but before the procedure was booked in, she was advised by the Defendant, with whom she kept in regular touch, to take some iron tablets, because her transferrin levels were low. The Claimant had not previously suffered from anaemia, although she did have a congenital condition known as telectangasia.

The procedure took place on 20^th August 2012. Prior to the procedure, there was a further consultation which was recorded on video, in which the Claimant’s consent for the VASER liposuction was obtained. During the discussion, the Claimant agreed that the desired outcome was “more toned up and slender looking thighs and low pole of buttock”. It was not intended that the Claimant should stay overnight at the clinic, which in any event had limited bed facilities for overnight care, although the Defendant did have an arrangement with a local hospital, the Wellington. Because of the amount of fat which was being removed, and the length of the procedure, anaesthesia was required, and this was administered by an anaesthetist booked in, in the form of sedation through a cocktail of drugs. The Claimant was also catheterised.

The procedure lasted several hours, at the end of which it was recorded that 6170 ml of fat had been extracted. It is disputed that this is an accurate record. Because of the anaesthesia, the Claimant was taken to a recovery area and monitored. At this point the Claimant felt dreadful, in pain and nauseous, and received oxygen by mask and painkillers. She was advised by the Defendant and her assistant that she was better off going home, and was put in a taxi although her legs were bleeding as a result of the procedure.

She was looked after overnight by her daughter, but the following day had to attend the Defendant’s clinic, as arranged, for lymphatic drainage by massage, and the application of compression clothing to her lower limbs. The Claimant was in very great discomfort throughout this procedure despite the administration of analgesic and the procedure was repeated over two further days.

On 25^th August, when the Claimant was on her own, she felt very unwell indeed, with dizziness, and diarrhoea, and she had to call her daughter to get help in summoning an ambulance. She was admitted to the Accident and Emergency Department at West Middlesex Hospital. At this time, the Claimant had also spoken to the Defendant who had advised her to stay at home, and to attend the clinic the following day.

At the West Middlesex Hospital, the Claimant was advised that she might be having a reaction to the antibiotics which had been administered, or some post-operative complication. She was given fluids and painkillers and discharged, although the doctor at the hospital also spoke to the Defendant over the telephone to understand the procedure which the Claimant had undergone.

She saw the Defendant at her clinic over several further days. In addition to lymphatic drainage and monitoring, the Claimant also had the aspiration of what were believed to be seromas, that is subcutaneous fluid accumulations.

On 4^th September, when being treated at the clinic, the Claimant was found to have very low haemoglobin levels by the Defendant, and she was advised to check in at the Chelsea and Westminster Hospital for a blood transfusion on the following day. However, the Claimant felt so poorly, that she went to the hospital that evening by taxi. She was treated immediately with transfusion, and there was a suspicion that she might have compartment syndrome. The Claimant was still wearing the compression garments which she had been advised to do by the Defendant, and these were cut off and removed. On the following day, the Defendant attended at the hospital. There is a dispute as to what transpired between the two, although it appears to be accepted that the Defendant was keen to have the Claimant back at her clinic for further lymphatic massage, and to attempt to drain a significant seroma on the lateral aspect of the right thigh, whereas the hospital plastic surgery team were advocating a more conservative approach. The Claimant also underwent an MRI scan.

She was discharged from Chelsea and Westminster, and attended at the Defendant’s clinic for further massage, which she found to be very painful. By this point, the Claimant had concerns about the procedure, and decided to seek the advice of a plastic surgeon she knew, Mr Jesper Sorensen. Mr Sorensen was somewhat critical of the treatment describing it as “severe damage to the subcutaneous tissues in the treated areas throughout her legs” and took some photographs. He also aspirated 60ml of seroma fluid. The Claimant saw Mr Sorensen the following week, and underwent further aspiration. Between these two appointments the Claimant attended once more on the Defendant on 13^th September for some further lymphatic massage, and on 18^th September saw her assistant Victoria Virtosu.

The final appointment with the Defendant was on 5^th October 2012. This was the discharge attendance, but it was the subject of a video recording of which the Claimant was unaware at the time. By now she was feeling better, and reasonably happy with the appearance of her legs, despite a degree of asymmetry. In the discussion with Defendant Dr Chambers, she expressed her satisfaction with the procedure. The Defendant informed the Claimant that she had removed “just over 6 litres” of fat from the legs. Photographs were also taken by the Defendant. At the end of the discussion, the Claimant asked the Defendant for some further Botox treatment, which was carried out in a separate room.

It is agreed that the final outcome of the surgery would not have been apparent at that appointment, but established six months post treatment. In fact, over the following few months the Claimant began to notice a far different appearance to her legs and buttocks than that which had been noted at the October appointment. Her legs appeared to subside, as if swelling was going down, and became uneven, bumpy and mottled, with impressions in places. She could feel virtually no fat under the skin, but just muscle and bone, and there was an obvious asymmetry in her hips. She had maintained her body weight throughout this period.

The Claimant decided to seek the advice of others, when it was clear that she was not achieving the desired outcome and the appearance of her legs was so dreadful. In addition to Mr Sorensen she consulted Mr Fatah, and Mr Inglefield, both of whom were plastic surgeons. Their reports have been provided, but are not relied upon as expert evidence as such, simply to indicate the present condition and appearance of the time of their respective examinations. In January 2013, Mr Inglefield described a “very poor appearance” and offered some fat grafting procedures followed by scar release, which might have improved her appearance. Mr Fatah provided a further second opinion in February, expressing similar views, and describes the natural body contour between hip and thighs as being totally distorted, giving an “unnatural and unfeminine body contour”. He offered to carry out similar procedures of fat replacement at a cost of £5000 approximately per procedure.

Thus by the early part of 2013, the Claimant was extremely dissatisfied with her appearance and sought legal advice with a view to commencing proceedings. In addition, she embarked upon a program of fat grafting through a further plastic surgeon in whom she had confidence, Mr Mallucci.

The consequences for the Claimant of the alleged botched and/or ill-advised procedure at the hands of the Defendant are dealt with later in this judgment under the heading of “quantum”.

The court has been supplied with a number of photographs depicting the lower part of the Claimant’s body, as well as some pre-surgery photographs taken on holiday showing the Claimant in a bikini, with her daughter. The photographs have been helpfully summarised in a schedule appended to the Claimant’s skeleton argument. The pictures cover the period immediately before the surgery (20^th August 2012) taken by the Defendant, through the later part of the year in the immediate post-surgery period (taken by Mr Sorensen), those taken by the Defendant on the discharge appointment (5^th October 2012), those taken by Mr Nishikawa the Claimant’s expert in early 2014, and those taken by Mr Mallucci, the current treating plastic surgeon. It has been unnecessary for this court to view the cosmetic results for itself, and it is agreed that the most recent photographs represent the final outcome, before any revision surgery, an outcome which is accepted by the Defendant to have been poor. (In her evidence she described it as “not an aesthetically pleasing result which she had never previously encountered”) However, as will be seen, the Defendant will contend that the mottled and undulating nature of the final outcome is a non-negligent consequence of the high definition, highly contoured or sculptured muscles look which the Claimant had requested.

In relation to liability, insofar as it is now accepted that the position depicted in the photographs from 2014 onwards represents the post-operative outcome of the surgery, it seems to me that there are three principal liability issues which the court must address.

Whilst there are a number of evidential disagreements between the parties, it is only necessary to address those which are relevant to the issues which I have to decide. There are two particular areas:

The Defendant has provided a number of documents which relate to her initial consultation with the Claimant. Most of these were not seen by the Claimant before disclosure; it is not suggested that they were handed to her at the time, but they provide a helpful indication of the procedures which were in place.

The patient assessment form at page 677 indicates that the areas to be treated were arms, thighs and buttocks. On the following page (678), in relation to the size, there is a diagram showing the inner thighs as shaded to the front, and a general shaded area at the back, from the top of the buttocks down the thighs to the area of the knees. Dr Chambers has written on this document in handwriting: 5l (litres) thighs buttocks, 1.6 l arms. There are further pages relating to checkboxes for skin elasticity and soft tissue asymmetry, and at page 681 a table of the patient’s expectations, where the Claimant is graded as “good” with realistic expectations and good understanding of the procedure. The lowest grade is “very poor suitability” where screening may be required for body dysmorphia.

The most important page appears to be that headed “total cost”. There is a significant dispute as to whether this was ever handed to the Claimant. However, the only typed cost relates to the inner thighs, where the liposuction type is described as “general”, rather than high definition. Insofar as it is the Defendant’s case that it had always been agreed that the Claimant would undergo high definition contouring to expose the muscles in the thighs and buttocks, her explanation for the word “general” which would suggest a softer contouring as the Claimant contends, is that this was a mistake by her assistant completing the drop down menu on the computer program. The court has not heard any evidence from the Defendant’s assistant, Victoria Virtuso.

The estimated fat volume to be removed is 5 litres, but insofar as this represented the maximum fat volume as a result of the ultrasound, it was suggested to the Defendant that it should have been 4.5 litres, on the basis that the practice was to leave 10% as a layer of fat. It has always been the Claimant’s case that following the VASER treatment, the fat layers were denuded.

Also important is the Defendant’s consultation, at page 683. The Defendant admitted, as indicated, to a degree of cutting and pasting. If it represents the extent of the discussion between the parties, it might have been expected that it would be informative in terms of desired outcome. In relation to the buttocks, posterior, inner thighs and arms, the Claimant is described as “very fit and eats well, but seems to accumulate fatty deposits in these locations and cannot shift them.” The note goes on to read: “adipose tissue moderate only excess and cellulite – buttocks. Posterior thighs and inner thighs – mild adipose tissue excess. Skin seems to be tto [sic] thin.”

This note makes no reference to the amount of fat to be removed. Otherwise the Defendant’s case on her evidence is clear: she insists that the Claimant wanted to see all the active muscles exposed, actually using these words, and whilst not using the description “high definition”, was clearly referring to this, and it would have required the removal of at least 4.5 litres of fat to leave a minimal residual fat layer. HD was a procedure which removed 90% of fat in the area being treated to give an extreme sculptured appearance, and she agreed that it involved removing the fat circumferentially. The Defendant also states that she did not regard this as an attractive look in women and specifically advised the Claimant that she did not need such treatment, but the Claimant was adamant. It is unfortunate that there is no note to this effect.

The Defendant explained to the court that when she was treating a patient and offering cosmetic procedures she would always be guided by what it was the patient wanted.

The Claimant’s evidence in relation to the initial consultation is that she only wanted a modest amount of fat removing principally to her inner thighs, to obtain a more feminine look, with a gap at the top of the thighs. She agrees that she looked at some case studies, that is photographs of other patients who had been treated, but denies that she selected a muscled look, that is with the muscles exposed and substantial amounts of fat removed, suggestive of bodybuilding. She wanted a natural look. In relation to the quantity of fat to be removed, the Claimant denies having any discussion about volume, nor would she have appreciated the difference if figures had been provided. As far as the photographs are concerned, she can only recall being shown pictures of women who were larger than her, and they were provided in both before and after form. No photographs have been produced by the Defendant either electronically or physically, although significant reliance is placed upon the fact that the Claimant had identified the high definition appearance.

At the resumed hearing, a document which had not previously been included in the disclosure list, although referred to in the report of Dr Glancey, was made available to the court. This was described as “patient complaint analysis” and appears to have been an internal document addressed by Dr Chambers when the complaint was received from the Claimant on 20^th March 2013. It is significant, the Claimant suggests through counsel, in that it does not specifically refer to an understanding on the part of the Defendant that the muscled appearance was being requested, so much as “improving the contours of the posterior and inner thighs, arms and lower pole of buttocks”. It also refers to apparent advice given by Dr Chambers that the Claimant should have VASER liposuction all around her thighs to ensure better skin retraction. This, of course, is the circumferential treatment necessary for the more detailed and extensive high definition, but the inference from this document appears to be that the advice was coming from the Defendant rather than an insistence against advice by the Claimant.

In the same document (page 283) there is reference to an attendance at the Defendant’s clinic for Botox treatment, sometime in June 2012, when the “patient” that is the Claimant, decided she wanted to “proceed with only the laser liposuction (not the gold threads) to improve the muscular definition of her thighs and lower buttocks.” This would be more suggestive of high definition, but the point is made, perhaps validly, that there is no contemporaneous record of such a communication, that this is a self-serving document for the Defendant several months after the procedure when a complaint was being made, and because the document was produced so late in the day there was no opportunity to cross-examine the Defendant on it.

The question of the desired outcome cropped up again at the consent procedure on the day of the operation. Unfortunately, there is no specific note addressing the Claimant’s requirements although a transcript of the video recorded interview has been provided. It is at page 155 (B) in bundle 5, and the relevant section comes near the beginning of the interview. There is a conversation about the goal for the procedure, and Dr Chambers says

“in our discussion I understand that you would like to get more toned up and slender looking thighs…”

In her evidence the Defendant interpreted this as amounting to a discussion about exposing muscles, whereas the Claimant agreed she wanted some toning and more slender thighs, but nothing near the high definition which was actually undertaken.

There does not appear to be any further discussion about goals, targets or the amount of fat to be removed, although there is some talk about the procedure involved.

Insofar as it may be relevant, reference has been made to the Claimant’s pleading in relation to the desired outcome, in which it is asserted that she sought “a natural-looking cosmetic improvement that would make her legs look smoother and more natural, improve the contour, and remove the cellulite from problem areas”. The admission of this (paragraph 16) in the defence is relied upon.

The starting point, once again, is the Defendant’s records. I have referred above to the endorsements on the initial consultation notes and the reference to 5 litres. There are two relevant pages (732 to 733 in volume 2). They are entitled Liposuction datasheet and set out in tabular form, allowing for infiltration of fluid amounts at different intervals during the operation of the VASER probe with associated calculations of the fat removed. The various boxes are filled in with handwriting, starting with the left thigh, proceeding to the right thigh and then the buttocks. The total volume of fat removed is described as 6170 ml. There is no other documentation emanating from the Defendant’s records but it is the Claimant’s evidence that that she was told by the Defendant that 6 litres had been removed, and this is recorded as her account in subsequent hospital records when information is being given about the procedure.

A photograph was taken by the Defendant shortly after the procedure, which shows six canisters of a dark amber coloured fluid which is paler in the top section compared to the bottom. The Claimant recalls being shown these immediately after the procedure although it is apparent that she was not in a very fit state at the time. Her account is of a description being provided by the Defendant that the fat kept “coming and coming”, and that the procedure had taken longer than expected. The Claimant also recalled that on the day of the discharge there had been a discussion between her and the Defendant while some Botox treatment was being administered, in which the Defendant pointed out that she was pleased that the Claimant was happy with the result, because she believed for a while that she had removed “too much fat”.

The Defendant told the court that she could not remember whether she had mentioned 6 litres to the Claimant after the procedure, but agrees that the record makes reference to 6 litres. If that related to 6 litres of fat, it is incorrect, because it included blood and squashed cells contained within the aspirate fluid, that is the fluid introduced during the procedure. She also accepted that in the video recorded consultation on discharge, she said that she had removed “just over 6 litres” by reference to the fat calculation, yet she is adamant that only 4.5 litres was removed, and refers to the photographic evidence, including the canisters.

Mr Nishikawa on behalf of the Claimant is an eminent and very experienced plastic surgeon with an impressive CV. His current specialty is in cranio-facial deformities and general plastic surgery, particularly in paediatrics, and although he has had experience in the past in all modalities of liposuction, including VASER liposuction, which he pioneered, he accepts that he has never become involved in the practice of VASER. He believes it requires a great degree of skill and judgment to perform properly, although he is knowledgeable about the procedure.

His first criticism of the Defendant relates to the decision to remove such a substantial volume of fat, or to assess the Claimant as requiring major liposuction. Whilst he is not in a position to comment as to whether high-definition was specifically requested by the Claimant, nevertheless he believes that the paramount responsibility of the doctor is to act in the patient’s best interests, and even if it was 4.5 litres of fat actually removed, as opposed to the 6.17 litres indicated in the records, this was far too much, and likely to lead to the skeletonising of the leg. Thus, it was creating an abnormal result, and he did not believe that there was any doctor who would have proceeded in this manner even if a request had been made. His own assessment of the Claimant from the photographs taken before the treatment, was that she only required minor to moderate liposuction. Even if the intended outcome had been to produce contoured muscles, the post-operative appearance could only be described as asymmetric, cobblestoned and deformed.

In relation to the use of the ultrasound machine to measure fat levels, and to determine the amount of fat to be removed, he believes that this represents a lack of understanding of the aesthetics of liposuction. It over emphasises a volumetric endpoint rather than aesthetic appearance. Further, it was not sufficiently accurate especially when it was being used to determine an average layer of fat. It had no three-dimensional element.

In relation to the procedure itself, whilst he no longer criticises the amount of anaesthetic used, or the general manner and performance, nevertheless he is highly critical of the excess fat removal itself, which involved a substantial use of the VASER tool over the period of the procedure. In the course of the joint report he developed this feature as being implicated in the creation of significant and extensive seromas, which he believed might have been thermal-type injuries. In his evidence to the court, he expanded on such a theory, accepting that seromas were a known risk of this type of procedure, but here that they were more likely to be caused by burning from inside out, because of the excited molecular activity through prolonged use of the tool. Thus, rather than being a simple collection of extracellular fluid, which was the traditional seroma, these were more likely to have comprised transudates from an inflammatory reaction, that is including a collection of blood. Their size, the pain associated with them, and the subsequent anaemia were all consistent with such a theory. He did not accept that seromas, particularly those which were of the variety likely to have been experienced here, represented an inherent risk of the procedure. In all the years that he had been carrying out related procedures he had never had the need to carry out a blood transfusion, and the very low haemoglobin level here was notable, and the consequence of aggressive and extensive fat removal.

He addressed and dismissed the suggestion that the “seromas” were caused by a failure to use compression garments in the aftermath of the procedure. Even if the Claimant had been non-compliant with wearing such comments, it would have been impossible to put them on over the excessive swelling caused by these substantial seromas.

According to Mr Nishikawa, it was the aggressive and prolonged use of the VASER tool which led to the uneven removal of fat, and damage to the tissues, with the eventual result that there was virtually no fat at all subcutaneously, explaining the cobblestoned and deformed appearance. In fact, as far as the final result was concerned, he was of the opinion that the discolouration and blueish colour was muscle fascia visible through the tight and thin skin layer. Further, the fibrosis, or scar tissue underlying the skin was a highly unusual consequence of a liposuction procedure.

Like the Defendant, Dr Chambers, Dr Glancey has a background in general medical training only, and has no plastic surgery qualification. She qualified in Bulgaria and undertook some work in plastic and reconstructive surgery there (seemingly without surgical qualification) before she came to the United Kingdom where she continued her career with basic surgical training (attaining MRCS status) and thereafter obtaining a combined research and practice post in orthopaedics. She left the NHS in 2002 to practise in cosmetic surgery. She is now based in Essex, although she occasionally practises from London, where she has a room leased from the Defendant in Wimpole Street. Together with the Defendant, she is one of the founder members of the British Association of Body Sculpting (BABS), where she is assigned the responsibility as the head of clinical governance.

Although the curriculum vitae provided with the report is relatively brief Dr Glancey told the court that she had a fuller version which is sometimes used. She had not previously given evidence as an expert witness in court, and accepted that she had not been trained as an expert, nor did she profess to have any expertise other than that which she had derived from the experience of carrying out numerous procedures involving VASER liposuction. It is apparent that she had performed fewer procedures than the Defendant, but this did not mean that she was inexperienced. There were international experts renowned in the use of VASER, but it had not been appropriate to use them in this case.

Dr Glancey was taken to her website, which did not include any reference to high definition VASER liposuction, although approximately 20% of the cases involved this work. The website was in the process of being updated. She agreed that most of her patients would not be attracted to high definition, particularly because of the demographics where her practice was based, and where the majority demand was for debulking and mid definition.

Dr Glancey was asked about BABS and the extent to which it brought her into contact with the Defendant. She accepted that there were annual board meetings, and she would occasionally bump into the Defendant, but mainly they communicated by email. BABS had been formed from an original laser user group which now had an interest in VASER through evolution. Dr Glancey disagreed that BABS was fringe. She was not aware of Dr Hamlet’s previous involvement. She had not discussed the content of the report at any stage with the Defendant, save when in meetings with the Defendant solicitor. Dr Glancey did not accept that she had failed to disclose conflicts of interest, because she regarded her relationship with the Defendant as nothing other than professional, even though a rent was paid and she served on the same board. Dr Glancey also rejected the suggestion that BABS was a vehicle for legitimising practices. The practices endorsed by BABS were based upon worldwide peer-reviewed papers.

Thus Dr Glancey challenged any suggestion of her lack of ability to act as an expert in this case. As far as her opinion is concerned, in her initial report she based her assessment on an understanding of the Defendant’s case that the Claimant had sought high definition VASER liposuction because she wanted highly defined body contours with muscles exposed. The conclusion was that based on this requested treatment the Defendant used an entirely appropriate gold standard method both preoperatively for the purposes of assessing the amount of fat to be removed, perioperatively when removing the agreed amount of fat, being 4.5 litres on a circumferential basis, and post-operatively when providing after-care in the recovery period. The seromas which developed and the anaemia were complications of the surgery, and in any event, could be associated with the failure to wear compression garments over the correct period to enable skin retraction.

It is fair to say that in her report provided (apparently in April 2016 although the letter of instruction does not appear to have gone out until May 2016), which presupposed that high-definition surgery had been requested and the Claimant’s wishes had been complied with, she did not address the alternative case advanced by the Claimant namely whether there had been a substandard level of care in relation to excessive fat removal, overaggressive use of the VASER probe leading to excessive seroma development and possible thermal injury, the measurement of fat levels by ultrasound as an adequate procedure, and the failure to leave a sufficient fat level subcutaneously, instead adopting a vague and unsupported rule of thumb that 10% was appropriate.

She engaged with Mr Nishikawa on some of these issues in the joint report. In particular, she disputed that ultrasound measurements were formulaic, contending that in combination with a qualitative approach of checking by clinical assessment and feel a significantly improved measurement could be made. As far as the leaving of 10 to 15% fat layer is concerned, she advised that this was entirely in accordance with the kind of liposuction requested, noting that bodybuilders in competition would typically have 8% of fat. In relation to the amount of fat removed during the procedure, she was satisfied that it was much lower than that erroneously indicated in the records of 6.17 litres, after allowing for the amount of fluid that was infused, and stated that the 4.5 litres, which was the amount required to achieve the objectives sought by the Claimant, was removed.

Dr Glancey was cross-examined at some length by Ms Godfrey counsel in relation to her expressed opinions subject to the Claimant’s reserved position that she was not an appropriate expert to give evidence in this case.

She accepted that the risks associated with high-definition VASER liposuction were greater in the sense that they were more frequently encountered, although they were the same risks which might arise for a debulking procedure. If this had been a debulking, she would have expected 50% of fat to be left behind, and although debulking could be circumferential, for the most part it would be localised. There were no references to high definition in the notes, but it was acceptable to use lay terms when there were discussions about the amount that been removed. Dr Glancey agreed that there were errors in the record, particularly in relation to the description of general VASER liposuction as opposed to high-definition. She did not agree that a typical candidate for high-definition would be a sporty person but it is relevant that the Claimant was a fitness instructor. She was satisfied that the reference to “more toned up and slender looking thighs” whilst perhaps insufficient for the consenting process, was sufficient for the purposes of understanding that high-definition was being requested.

In Dr Glancey’s opinion, the Claimant obtained the outcome which she had requested, and there was a satisfactory appearance on 5^th October, even though there was subsequent deterioration. She agreed that it took six months for the final results to become apparent, although in March 2014 there were clear deformities and it was not an acceptable muscular high-definition look, nor was it aesthetically pleasing. She had seen a couple of examples of this procedure failure previously in conferences, but not in clinical practice.

Dr Glancey was questioned about the use of ultrasound, which she insisted was a better method than the naked eye or the use of callipers based upon worldwide practice, and produced more accurate results. In relation to the measurements which were produced and the documentation examined, Dr Glancey agreed that there was no evidence to support a continuous or circumferential layer of fat, but this was a reasonable assumption; three separate areas of the thigh had been measured and 10% of the total fat originally estimated was a reasonable amount to leave. She did not accept and Mr Sorensen must necessarily have been accurate in concluding in his examination in September 2012 that muscle was adhering to skin, because there would have been swelling in the surroundings at that time.

As far as the seromas were concerned, she accepted that the very large 30 centimetre seroma was unusual, but in high definition VASER surgery there was a high percentage of occurrence.

I deal with this under a discrete and separate heading, because it has a relevance to both liability and quantum.

The psychiatric opinion was provided by Dr John Meehan, a consultant psychiatrist with very many years of experience of both forensic and clinical psychiatry. He first examined the Claimant in March 2014 with a view to considering the psychiatric and psychological consequences of the alleged negligent treatment, as well as addressing the Claimant’s previous mental health history. He had available to him the Claimant’s GP records, general hospital records, and the notes from the Priory Hospital where she had been treated before and after the cosmetic surgery.

Dr Meehan described the Claimant as having had a long-standing history of recurrent depression and anxiety. There had been a difficult childhood, with her parents having a dysfunctional relationship, she had been bullied at school, and had an eating disorder. Although she had received treatment for her depression for much of her adult life, she had coped, and was functioning as evidenced by the establishment of a successful beauty and cosmetic business. He noted from the records that there had previously been a provisional diagnosis of bipolar spectrum disorder with mixed anxiety and depression, although he did not accept that it was conventional bipolar (previously known as manic depression) but bipolar II which was significantly less debilitating, involving occasional periods of low mood with mild euphoria or euthymia when coming out of depression. She was certainly vulnerable to further episodes of depression prior to the treatment. He regarded her as one of life’s “doers” notwithstanding subclinical depression, and her activities, as well as some of the cosmetic treatment she underwent, were designed to improve her self-esteem. He accepted that she was still taking medication at the time of the relevant procedure in August 2012.

A reference was made to an exchange of emails (bundle 4 page 633) in which the Claimant had been in discussion with her then treating psychiatrist, Dr Collins in the period immediately before the cosmetic surgery, about iron tablets, and the way in which there may have been interaction with the other drugs which she was taking, including dosulepin. She also wanted to know whether this should be declared to the Defendant, or the anaesthetist and whether she should come off the antidepressant. In the course of his reply, Dr Collins had suggested that if she did not want to discuss her mental health issues with the anaesthetist, she could always say that the medication was taken to help with migraine, but it was unnecessary to discontinue it. Dr Meehan did not interpret this email as suggesting that the treating psychiatrist was advising non-disclosure to the anaesthetist. He accepts that the psychological history could well be relevant to the treating surgeon, as it might impact upon well-being.

Dr Meehan observed that prior to the treatment, the Claimant had been compliant and trusting, and to some extent in awe of the Defendant, but in the aftermath, after believing that she had been abused, her mental attitude changed where she felt hostile and angry for having been so submissive. The Claimant had been shocked at the outcome, and her feelings were material to the development of her mental state. Although he identified significant post-traumatic features, including intrusive memories, fear, anxiety and difficulties of concentration the symptoms were not sufficient to justify a diagnosis of post-traumatic stress disorder. Dr Meehan believed that the Claimant had a “post-traumatic state of mind” because her basic assumptions about the clinical care had been overturned by what happened. The more significant diagnosis was adjustment disorder, and the psychiatrist was satisfied that the symptoms fitted the established criteria, being emotional or behavioural symptoms in response to an identifiable stressor, occurring within three months. Because the stressor, namely the poor outcome was continuing, the adjustment disorder had become chronic interfering with social interaction and functionality. In 2014 he assessed the symptoms as moderate to severe, with a similar assessment in 2016, at which time he was still advocating psychological treatment in the form of counselling and cognitive behavioural therapy. He expected that the reconstructive surgery (fat replacement) once complete would have an effect on improving the overall prognosis, and he was cautiously optimistic that the symptoms would abate.

The Claimant had also suffered an exacerbation of her pre-existing depression, which prior to the treatment was classified as mild, but which subsequently had become severe. Dr Meehan believed that she would remain vulnerable to further episodes of depression, and indeed between the time of his first assessment and the trial there had been several occasions when she had slipped into very low depressive mood requiring intervention.

He was satisfied that both the adjustment disorder and the aggravated depression were causally connected to the effects of her surgery, as opposed to the procedure itself.

Although there was evidence from June 2012 (bundle 4 page 632) that the Claimant was experiencing “unbearable depressive symptoms” if she did not take her medication, and was in a quandary because the medication gave her “unbearable side-effects”, Dr Meehan had incorporated this factor into his assessment, and believed that it was indicative of ongoing problems, although they were under control, because the Claimant was clearly functioning well.

Dr Meehan was taken at some length through the GP records, and in particular it was suggested to him that there was little evidence of involvement of the primary carer in her psychiatric or psychological well-being. Although he did not accept that this was the case, noting several references, nevertheless it was entirely appropriate that the Claimant was being treated in secondary care without a referral back to her general practitioner.

It was accepted that the Claimant had not undergone the cognitive behavioural therapy (CBT) which he had recommended in his original report, but Dr Meehan did not accept that this was unreasonable, or that it had contributed to any deterioration. The timing of CBT was crucial, and it could not be taken when the Claimant was emotionally aroused. It was still appropriate for her to have CBT in the future, and that such treatment would increase the likelihood of recovery.

Dr Meehan found it difficult to give an accurate prognosis as to when recovery would be maximal and believed that in this case it was “complex”. Not only was the improvement of the Claimant’s psychiatric state dependent upon any behaviour related to treatment, but the eventual outcome of the reconstructive surgery was also implicated. He accepted that the Claimant would have had some ongoing depression in any event, and in terms of the extent to which the substantial therapy/psychiatric costs could be attributed to the “botched” surgery, he was unwilling to precisely define how much would have been required without it. He opined that whilst the need for appointments would be related to both a psychiatric overview and dealing with vulnerability to further depression from traumatic events, nevertheless it was significantly more than would have been needed.

The submissions were heard over the course of the final day, with both counsel presenting extremely thorough and helpful speaking notes which were elucidated orally. The court was also provided with Scott schedules for the purposes of any assessment of quantum that is required, and an identification of the extent of quantum issues which would have to be addressed.

On behalf of the Claimant, Miss Godfrey started by identifying the principal question which falls to be resolved, namely was this a case of general VASER liposuction, that is debulking of unwanted fatty tissue, or a far more aggressive form of Vaser with high definition exposure of the active muscles? If the former, the Claimant must succeed, because of the concession made in cross- examination that if it had been a more moderate procedure, excessive amounts of fat were removed.

She submits that the Claimant’s case on the alternative factual scenarios is inherently more credible, bearing in mind the Claimant’s age (47 years), her pre-surgery appearance with soft feminine body curves and not an athletic body builder’s look, and her expressed wish repeated on many occasions for a natural feminine look. Insofar as she had previously had a bad experience with cosmetic surgery, and clearly trusted the Defendant, it is unlikely that she would have gone ahead with a surgical procedure against the advice of the treating doctor. The Defendant’s account, on the other hand, is largely fabricated after the event to justify the excessive fat removal.

Miss Godfrey also relies on the contemporaneous medical records, including the Defendant’s notes, and the video of the consenting process, none of which support the suggestion that she was seeking a highly sculpted and muscled appearance. In particular, the indication on the consultation diagrams showing areas to treat are not circumferential, which is required for high definition, but specific, and the estimation of fat calculated to be removed, 5000 mls did not include the anterior thighs. The term “high definition” simply does not appear anywhere. If the Defendant had advised against the high definition look, there is no indication of this in any of her notes.

The court is invited to draw adverse inferences from the absence of any witness to corroborate the Defendant’s account, (Dr Victoria Virtosu) and the failure to disclose the photographs which were allegedly shown to the Claimant at the initial consultation process.

Also relevant to the first and most significant issue, submits Ms Godfrey, is the fact that the Defendant’s case depends upon a specific agreement for the removal of 4.5 litres of actual fat, when there is a complete absence of any such reference in the notes, whether or not that amount of fat was actually removed. The Defendant had provided a construct after the event, namely that she had carefully estimated the amount of fat to be removed by prior agreement with the Claimant, being 90% of the volume identified, to achieve a high definition look. The medical records appear to suggest that the Defendant thought that she had removed 6 litres of fat which is hardly consistent with a maintained position throughout that there was a very specific procedure being followed based upon precise calculations. The absence of precision is demonstrated by evidence, which the court is invited to accept, that on discharge (5^th October 2012) the Defendant reported to the Claimant that she thought she had removed too much fat.

Ms Godfrey also identifies a second factual issue which she submits should lead automatically, if determined in the Claimant’s favour, to a finding of negligence, without any reference to particular standards of care. This is a fall-back position which is said to arise only if the court believes that high definition laser liposuction was requested by the Claimant and provided by the Defendant. It is said that even for high definition it was necessary to leave sufficient subcutaneous fat layer across the thighs and buttocks, and this the Defendant failed to do. The assertion is evidenced by post-treatment examinations including those of Mr Sorensen, consultant plastic surgeon, who found very little fat left on the operated areas with skin adhering to muscle without any underlying soft tissue in between, (September 2012) Mr Fazel Fatah, to the effect that both legs were almost defattened and skeletonised (January 2013) and Mr Nishikawa, the Claimant’s expert who concluded in March 2014 that there were large areas where the subcutaneous fat had been completely denuded down to the muscle fascia.

It is submitted that there is no evidence to support the Defendant’s case that just over 10% thickness the fat layer was left continuously. The ultrasound scans on which the Defendant relied provided three depths in three separate places which were insufficient to demonstrate a continual residual fat layer, and the Defendant’s calculations were flawed or extremely crude and rudimentary. Further, the recent explanation that there was a possibility of further fat necrosis from thermal damage in the months after October 2012 was of no substance, and in any event if there had been thermal damage this would have risen from over-aggressive use of the probe.

If and insofar as support is derived from any MRI scan, Ms Godfrey submits that the MRI scan was not intended to determine layers of fat, and the best interpretation was that there was still some fat present in the legs. If and insofar as Mr Sorensen’s conclusion is to be interpreted as a mistaken belief that skin was adhering to seroma rather than muscle, this lacks credibility.

Aside from the two factual findings which Claimant’s counsel invites the court to make, she also addresses, again hypothetically, the question of the standard of care to be applied to high definition VASER liposuction, which falls to be determined by consideration of the evidence of the two experts, Dr Nishikawa, and Dr Glancey.

However, in the case of the latter, Ms Godfrey provides a robust challenge to her competence and qualification to act as an expert. Not only does Dr Glancey’s proximity in terms of working relationship, BABS management and acquaintance affect her impartiality and independence, her lack of experience as an expert, and possession of the qualifications and kind of research and academic curriculum vitae which would set an expert apart renders her evidence of little worth. Her experience arises only from the number of VASER procedures which she has performed, which in any event appears to be fewer than those performed by the Defendant. Further, her reference to standards and good practice appears to be derived from the self-regulated organisation of which she is head of faculty of clinical governance, and it is notable that such standards, if they could be called that, were not in place until after the relevant treatment had been carried out in this case.

Whilst advancing an argument based upon res ipsa loquitur, Ms Godfrey in the course of oral submissions drew back from insisting that what her expert had described as a grossly unacceptable outcome was sufficient to displace the burden of proof, requiring the Defendant to lead a non-negligent explanation. Otherwise, she based her submissions on the four aspects drawn from Mr Nishikawa’s evidence, and thus refined from the more extensive pleaded case that (a) there have been a negligent preoperative assessment, based upon the use of the ultrasound as an inadequate measurement (b) the Defendant had removed too much fat (c) the Defendant had failed to leave a continuous subcutaneous fat layer and (d) the VASER probe had been used negligently and over aggressively causing severe internal injury.

In relation to (d) there was a significant disagreement between Mr Nishikawa and Dr Glancey as to the cause and constituents of the seromas which were seen post operatively. Ms Godfrey asked the court to prefer the evidence of Mr Nishikawa that the seromas contained both serous fluid and blood because they were more likely to be burns, not least the largest seroma which was 30 cm long, and because of the pain it generated, as well as the resultant fibrosis. These arose not as a result of a natural consequence of the procedure, but because of excess fat removal prolonged and aggressive use of the VASER probe.

Counsel for the Claimant addressed the basis upon which the matter was being defended, and the apparent reliance on either a practice accepted by a responsible and reasonable body of medical practitioners (Bolam v Friern Hospital Manangement Committee [1957] 2 All ER 118 and the fact that a practice was being followed which was responsible and logical (Bolitho v City and Hackney HA [1997] UKHL 46). In relation to the Bolam defence, it is submitted that the Defendant, who founded BABS after she had performed this particular procedure, was acting in accordance with methods which she had herself set up and that the removal of 90% of estimated fat to reveal highly defined and sculpted muscles was at best experimental and not an approved standard practice. In relation to Bolitho, Ms Godfrey makes similar submissions to the effect that there was no responsibility in slavishly following the 90% fat removal method which was inherently inaccurate.

In respect of causation, it is submitted that most if not all the alternative scenarios postulated by the Defendant have either been abandoned, or unsupported by any evidence. Insofar as there may be a dispute between the parties as to whether the Claimant was asked by the Defendant about her psychiatric history, which is said to have causative potency to the eventual outcome, the court is asked to prefer the evidence of the Claimant to the effect that this did not happen. In any event, she had disclosed details of the medication including Cipramil, which is a well-known antidepressant and it was the doctor’s duty to take a full and proper history and not to require the patient to volunteer relevant information.

Ms Godfrey made a number of submissions in relation to the damages aspect of the claim, which I shall address later in this judgment when dealing with the evaluation of quantum.

Turning to the Defendant’s submissions, Mr Butler provides an overview by way of the context in which the claim should be considered. This was elective surgery with a highly desired outcome on the part of the Claimant, and the fact that risks materialised, which were pointed out, to the effect that the liposuction procedure produced a disappointing result which was not that expected, does not of itself establish liability without more. Elective cosmetic surgery requires a highly subjective assessment as to its procedure and result, and a court should be cautious before arriving at its own conclusions, in particular whether the surgery was advisable. Here those providing elective VASER surgery were in the best position to set their own standards and define their own methods.

Mr Butler then addressed the issues which the court has to resolve, which like Ms Godfrey he divides into primary and secondary considerations, the significant factual question being whether or not excessive fat was removed from the buttocks and thighs contrary to the Claimant’s wishes. The secondary considerations address the specific allegations of negligence made in the pleading, on the basis that the court accepted that high definition sculpted muscles were requested and wanted by the Claimant.

In relation to the main factual issue, counsel refers to the fact that the Claimant had undergone many cosmetic procedures previously and would have been assiduous in finding the best surgeon to undertake the VASER, and to have explored in detail with the Defendant her expectations and requirements. The specific advised expectation (recorded in the transcript) to have more toned up and slender looking thighs was properly to be interpreted as high definition, even if this terminology was not used, because of the clear evidence that the Claimant was shown photographs and would have been careful in selecting the correct look which she required. The patient assessment form confirmed that 5 litres of fat were to be removed from the thighs and buttocks and the areas were noted as “whole areas” with the fat quantities properly estimated by ultrasound. The Claimant would have been aware that the costing was made up on the basis of 5 litres of fat with 4.6 hours involved in the liposuction. That was not consistent with modest fat removal. He invited the court to consider the consultation notes from 26^th January 2012 as well as the notes from August 2012 , the consent form, the liposuction datasheet and the transcripts. It is highly relevant that in October 2012 the Claimant was satisfied with the outcome.

Insofar as reliance is placed on Mr Nishikawa’s expert evidence, his opinion that the procedure was not required is irrelevant, and it is to be noted that he has no experience of the use of VASER; at times he was expressing his personal opinion particularly when contrasting this type of liposuction with conventional liposuction.

Mr Butler takes each of the allegations of negligence separately when addressing what he acknowledges are the secondary issues, relevant to the question of standard of care, insofar as a finding that the Claimant did not seek high definition VASER liposuction would entitle her to damages, and thus bypass such a process.

The first of these relates to the use of the VASER probe or wand, so as to cause multiple large seromas. Whilst not accepted that these were caused by burns, nevertheless seromas were an accepted risk of the surgery to which the Claimant consented, and which may have required further treatment for their removal. This was accepted by Mr Nishikawa and his opinion that the seromas were likely to represent thermal injuries from overuse of the probe, with evidence of transudate, mainly blood and fluid in combination, was just that, namely an opinion, because he had never previously undertaken this kind of liposuction surgery. There was little or no evidence that these seromas were anything more than the materialisation of an accepted risk of the procedure, notwithstanding that one of the seromas measured up to 30 cm.

The second issue was concerned with the failure to provide overnight facilities following the carrying out of high-volume liposuction, or to admit the Claimant to a hospital to allow an adequate monitoring of her condition. (In the course of exchanges with counsel, I indicated that I did not regard this allegation as anything other than a makeweight, at best giving rise to some transient discomfort, and certainly not causative of any long-term consequence. Accordingly, it was not answered in any detail by Mr Butler.)

The third issue was more significant, and related to the alleged excessive removal of fat subcutaneously so as to leave many areas denuded. In this respect, it is submitted that the methods of measurement by the Defendant through the use of ultrasound, as opposed to a visual assessment, was an entirely appropriate one. The Defendant’s evidence was that these measurements established sufficient fat (in the region of 10%) had been left applying the necessary calculations; not only was ultrasound a useful tool, but also the fat had been measured as it was being removed by the VASER machine. At the time Mr Sorensen examined the Claimant, there was significant swelling and hardness over the subcutaneous tissues, and seromas would have been present at this time. Further whilst pointing out that skin may have been adhering to muscle without underlying soft tissue, at no point did Mr Sorensen describe the subcutaneous fat as having been completely denuded to the muscle fascia. This was similarly the case with Mr Fatah.

The fourth issue was closely connected, and that is the reliance on ultrasound as the sole means of pre-operative estimation of the volume of fat removal. Mr Butler submits that it is relevant that the Defendant has performed over one thousand such procedures using ultrasound, as have other practitioners, and it has been an acceptable method for many years. There was a built-in margin of error of 150 mls. Furthermore the Claimant was also assessed by appearance, and skin touch.

The fifth issue related to the plan based upon alleged inaccurate and inappropriate ultrasound measurements, rather than an aesthetic endpoint, and was dealt with in the submissions already made in relation to the fourth issue.

The sixth issue related to an alleged failure to adequately or at all monitor and assess fat removal during the procedure, in other words to carry out the fat removal almost blindly. It is submitted that there is no evidence that the Defendant did anything other than control the amount of fat being removed with the use of accurately measuring equipment.

The seventh issue relates to the non-provision of hospital facilities, and is no longer relevant.

The eighth issue relates to the failure to provide proper monitoring of the Claimant’s failing haemoglobin levels. This is based upon Mr Nishikawa’s opinion that the management was substandard but it is submitted that the evidence points to a significant degree of care and attention on the Defendant’s part, with an immediate referral to hospital as soon as it became apparent from the blood tests that the haemoglobin level was raised at 7.6. It would not have been open to the Defendant to carry out any blood transfusion herself, because this procedure can only be performed by trained doctors at hospital. Accordingly, it is said there is no evidence of any failures on the part of the Defendant.

Mr Butler addressed the ninth issue briefly in his written submissions of res ipsa loquitur, but did not expand on them orally when I confirmed that this would not be necessary.

The final issue relating to the standard of care raised the question of GMC guidelines in failing to practice within competence, and by interfering with ongoing management, putting the interests of the clinic above the interests of the patient. Mr Butler submitted that even if this was capable of being established, which on the evidence it was not, this was a regulatory matter, rather than any breach of duty or failed standard of care which gave rise to any consequence. It was pointed out that the Defendant was extremely experienced in the performance of the VASER liposuction attending annual appraisals and revalidation.

On the question of causation, if the court were to accept that the Claimant had not requested a high definition exposed muscles look it was still necessary to consider whether the Claimant could establish that the removal of 2 to 3 litres of fat would not have led to the same post-operative complications. It is submitted, that on a balance of probabilities, the Claimant could not prove causation in this regard.

Mr Butler made several submissions in relation to damages, and I shall address these, together with his schedule responses, when considering the quantum aspect of the claim.

In their skeleton arguments at the outset of the hearing, both counsel made detailed reference to the legal principles which have to be applied to a case of this nature and provided an agreed bundle of authorities containing the relevant cases. However as the evidence has emerged, and the submissions have been refined, it has become apparent that there is no dispute on any question of law, and little further reference has been made to authority, other than an endorsement of the test for determining the standard of care derived from Bolam (supra) in the event that the court is required to decide whether the Defendant performed an agreed high definition liposuction procedure in a manner which would not be accepted as proper by a responsible body of medical practice in that particular specialism. This is because, as indicated above, both parties accept that the primary question is one of pure fact, namely what is the cosmetic procedure which the Claimant requested and which the Defendant undertook to perform? If this question is determined in favour of the Claimant, then no issue of informed consent or a failure to follow acceptable practice arises: quite simply, whether approached from a contractual or a tortious point of view the Defendant inflicted on the Claimant incorrect and inappropriate treatment, and the only question is whether that led to injurious consequences.

If resolved in favour of the Defendant however, it is necessary to determine whether or not the high definition liposuction performed was substandard by reference to the available evidence as to what was acceptable practice (and subject of course to the extent to which the court is prepared to accept the evidence of Dr Glancey, the admissibility of which is challenged, as a basis for assessing a standard of acceptable practice). This again is a question of fact and no complex question of law arises as to the approach necessary.

Thus to address the primary question and the stark conflict which is presented, I start with the evidence of the Claimant, Tracey Giles, and the Defendant Dr Alexandra Chambers and their respective accounts, together with the relevant documentary material.

The definitions of the respective procedures which have emerged during the course of the evidence are (1) high definition, or high def, to describe the substantial removal of fat to reveal the muscular structure, exposing the muscles and leaving no visible fatty tissue, the preferred appearance of bodybuilders and those who wish to convey an impression of being fit and muscular, and (2) debulking, which describes the selective removal of areas of fat in overweight individuals, or those who are concerned about parts of their body having excessive adipose tissue, which is by far the most common procedure. Regrettably save in one very small respect, neither of these terms appear in any of the documentation, either the medical records which are generated by the Defendant, the material provided by way of information beforehand, or transcripts of oral exchanges between the Defendant and the Claimant at the consenting procedure in August 2012 or on the discharge in October 2012.

The small respect referred to is the document which deals with the estimated cost (bundle page 213). This is a computer-generated document with drop-down menus where in the column entitled “Lipo type” there is the facility to describe the liposuction as high def, but notably in relation to the one area in which it is suggested that there ought to be fat removal, namely inner thighs, the Lipo type is described as “general”. Whilst this is said by the Defendant to have been a mistake by her assistant, from whom the court has not heard, it is unfortunate that in the very place where this matter could have been put beyond any doubt, (although the Claimant says that she never received this document), there has been no reference to the type of treatment which the Defendant has contended for. There would have been further opportunity in the handwritten endorsements which appear on the right-hand side of the page, but again these do not describe high definition liposuction by VASER. It is fair to say that they do not describe debulking either, although the nomenclature “general” might be appropriate in this regard.

Although it was not disclosed, in the sense of being made available at the outset of the trial (it might have been sent to the Claimant’s legal advisers at one time) the patient complaint analysis, a document generated by the Defendant herself, does not make any reference to the description of high definition which has become so central to the case, although reliance is placed upon page 283 which makes reference to “improving the muscular definition of the thighs and lower buttocks”. One of the questions which I must ask myself is whether or not this is simply another way of describing high definition liposuction, although this is not a document which was ever seen, or endorsed by the Claimant.

At page 683 in core bundle 2, there is another important document, again generated by computer, which refers to the first consultation with the Claimant. These were relatively extensive notes in which the Defendant was afforded the opportunity to input free text (there is no suggestion that there was a word limit to the particular field). It is in this place where one might have expected to see a reference to the specific type of cosmetic surgery, which it is agreed was unusual, especially in the light of the Claimant’s age, and which either at this point or subsequently when the procedure was embarked upon was contrary to the advice of the treating doctor. Whilst the risks are clearly set out, the alternative types of VASER liposuction are not described. There is reference to the areas where the Claimant was concerned about fatty tissue, although there is no indication that it was regarded as excessive or unsightly.

There is also a document (page 677) which is referred to as a patient assessment form, also created on 26^th January 2012. This was not computer-generated but provided a diagram showing the areas in the lower part of the body to be treated. It is suggested, with some validity it seems to me, that the type of liposuction being proposed (circumferential) is not consistent with the shaded areas to the front of the thighs which appears to suggest a focus on the inner thighs and not the outer thighs. As it is the Claimant’s case that she wanted a gap between her thighs to create a more feminine appearance, it is not surprising that there should be this focus. However, it is difficult to place too much store by what is clearly a rough and ready diagram.

Similarly, on the ultrasound assessment sheet (page 741) which was the subject of some cross-examination of Dr Glancey because of potentially inaccurate figures, the row adjacent to “anterior thighs” is missing any inserted data. It is suggested that this would not be consistent with a circumferential removal of fat but again consistent with the inner thigh gap which the Claimant was trying to create.

Whilst reliance has been placed by the Defendant on material which indicates that the amount of fat measured and to be removed in the buttocks and thighs was 5 litres (which is also described in one place as the estimated fat volume) from which it is appropriate to infer that this was going to be a substantial procedure and not one involving mere debulking, it seems to me that unless some specific understanding is attributed to the Claimant as to the scope of the procedure with this amount of fat removal, it does not provide evidence of her agreement to high definition liposuction, and at best provides some equivocal support for the Defendant’s intention, from the outset, to remove significant volumes of fat.

In one significant and material respect, the documents, and in particular the consenting process, may have provided a useful pointer as to which of the diametrically opposed accounts is correct. It is the Defendant’s case that not only did the Claimant insist on high definition and the exposure of all her active muscles, furthermore she did so against the specific advice which she the Defendant provided, that this would have produced an inappropriate and unattractive result, and was not recommended. Whilst elective cosmetic surgery defers in most instances to the choice of wishes of the patient, and is very subjective, in my judgment it is surprising that at no point does this robust advice appear in the documentary material. Further, the transcript of the conversation prior to the treatment does not contain any suggestion that the Defendant was seeking to dissuade the Claimant from embarking upon a course which was not only risky, but also unlikely to make her look particularly attractive.

In the context of this review of the documentary evidence, I consider the oral evidence of the Claimant and Dr Chambers respectively on the discrete point as to the choice of procedure.

The Claimant came across as an emotionally volatile person, who struggled to recall some of the more historic aspects of her treatment for mental health issues and depression. However, in relation to her interaction with the Defendant she was generally consistent in her recollection and in my judgment gave credible evidence as to what transpired at the various appointments. She conveyed the impression of a person who reposed considerable trust in members of the medical profession, despite her previous experience with a failed cosmetic procedure. Indeed, she is recorded in the transcript as placing “complete trust” in Dr Chambers. In this respect, it seems difficult to imagine that she would ignore strong advice given to her in relation to a cosmetic procedure.

Although staying fit and healthy was clearly an important aspect of her lifestyle, particularly in relation to the training in which she participated, it seems to me that sustaining a feminine appearance and postponing the signs of advancing middle-age were more important, especially with the image she would need to convey because of the business in which she worked. Her obsession with appearance and addressing what she subjectively perceived to be unsightly aspects of her body is manifest in treatments which she had undergone, and her continuing desire for ongoing treatment in the form of Botox and the like. Therefore, a desire for a thigh feminine gap, and a more feminine appearance is not only plausible but in my judgment a highly likely aspiration for the Claimant. It is difficult to imagine the Claimant opting for an image which produced extremely sculptured and exposed muscles which was anything other than feminine, and loved by bodybuilders especially when she had been given strong advice that it was inappropriate.

I did not find the Defendant to be a convincing witness. Although she gave her evidence in a calm and controlled manner, at times she conveyed the impression of following a formulaic approach, with an unswerving belief in the effectiveness of her own procedures. Her explanations for the failure to record the desired outcome in her notes, including the attribution of a mistake in the drop-down menu by her assistant Victoria Virtuso, from whom the court has not heard, lacks credibility. Insofar as she emphatically insists that the Claimant on more than one occasion stated that she wanted all her active muscles exposed, using those actual words, it is extraordinary that at no stage has she recorded the desired wish when there was ample opportunity to do so. The Defendant does not strike me as someone who would omit to include relevant material in her notes, especially when it related to an outcome which the patient/client is supposed to have insisted upon against expressed advice to the contrary.

The absence of any photographs, which would have been easily accessible to the Defendant, and on which significant reliance has been placed to support the suggestion that the Claimant specifically chose a sculptured and muscled look, causes some concern. This would have been compelling evidence one way or another. It might have been expected that a cosmetic surgeon would have at her fingertips the photographic material to demonstrate potential outcomes, and the absence of the specific photograph leads to an inference that the Claimant is in fact correct on this point, namely that she was only shown pictures of larger women who had had selected areas of fatty tissue removed.

I must decide this primary question of fact on a balance of probabilities. In the circumstances, I have concluded that it is more likely than not that the Claimant did not request a sculptured and muscled high definition appearance with the removal of substantial quantities of fat. It is likely that she was after a specific result, mainly a more feminine appearance with a thigh gap. Even if she had been made aware that 5 litres of fat were to be removed, and I am not convinced that any clear information was provided to this effect, as opposed to an ultrasound identification of 5 litres of fat in the area of the buttocks and thighs, I find on a balance of probabilities that this would not have led the Claimant to any reasonable belief that the Defendant was going to embark upon a procedure of aggressive and extensive fat removal.

Insofar as the Defendant contends that she counselled the Claimant against an unfeminine highly sculptured and muscled appearance, I reject this evidence. It is inconceivable, in my judgment, that a doctor of this experience would not have recorded her advice in any of the consent documentation or other notes, or to have made reference to her advice in the course of the video recorded exchange prior to treatment.

I do not believe that it is appropriate to speculate as to why the Defendant chose to provide a liposuction procedure which had been neither requested nor required by the Claimant. If the costing of the procedure was based pro rata on the amount of fat to be removed there may have been financial incentive to maximise by reference to the actual fat which was measured without differentiating between any particular procedure. Equally, in view of the interval between the initial consultation and the Claimant’s return for the treatment there may have been a slavish adherence to the removal of five litres of fat with scant regard being given to what it was that the Claimant wanted to achieve. However, it is unnecessary to attribute any improper motive to the Defendant, who, whilst a relatively experienced VASER practitioner was operating at a time before this particular specialism had provided its self-regulated guidelines through BABS. It is sufficient that the Claimant has established on the balance of probabilities that she did not agree to a high definition liposuction.

In the light of my findings on the primary question of fact, and the agreement of both counsel that subject to the question of causation, negligence and/or breach of contract is thereby established, it is unnecessary to consider in any detail the subsidiary questions. However, because the court has received a considerable amount of evidence and submission it may be helpful if I made some general observations on the matters that have been raised.

It is also relevant to address the position of Dr Glancey as an expert witness had it been necessary to resolve any dispute between her and Mr Nishikawa, because the admissibility of her evidence has been challenged. I can deal with this relatively briefly. The circumstances in which she came to be instructed leave a lot to be desired. She is not a plastic surgeon, even though a cosmetic “surgeon” with some knowledge and experience of the particular procedure under scrutiny might have been helpful. Accordingly, the Defendant did not have permission to rely upon her. It was unfortunate that she was allowed to engage with Mr Nishikawa in a joint report and by this stage the die was already cast. In my judgment, there is some substance to the argument that her impartiality, independence and objectivity have been undermined by her closeness in professional terms to the Defendant, and it is a connection which should have been disclosed in her report. Nevertheless, I have come to the conclusion that her instruction, whilst perhaps ill-advised, was not engineered by the Defendant and was genuinely considered by the Defendant’s solicitor to be appropriate. It seems to me that the non-disclosure of a professional connection was not so much deliberate as inadvertent and borne out of inexperience by Dr Glancey in giving expert evidence.

In the circumstances I have been prepared to admit her report and evidence on the basis that it is expert testimony, rather than exclude it. The weight which I attach to any opinion expressed by her, however, is to some extent diminished by the lack of complete independence and impartiality which must necessarily be attributed to an expert witness. In the light of my findings this is somewhat academic, because little or nothing turns on any dispute to which her evidence might be relevant.

The Claimant by counsel posed a second factual question: did the Defendant fail to leave a continuous subcutaneous fat layer across the Claimant’s thighs and buttocks? It was agreed that if this was the case negligence would be established as it would have amounted to a substandard level of care.

The resolution of this question to some extent would have depended upon the efficacy of the ultrasound measurements upon which both the Defendant and Dr Glancey placed reliance, contrasted with the findings of three separate plastic surgeons, two of whom were treating the Claimant in the initial stages. In my judgment, whilst a useful tool for the sectional and isolated assessment of fat thickness, ultrasound has its limitations, as demonstrated by the fact that two measurements here could only establish a depth of fat in individual areas (.22 cm and .23 cm) when fatty layers circumferentially are bound to vary significantly. In this respect, I prefer the evidence of Mr Nishikawa that visual and palpable assessment of fatty tissue is necessary and reliance on ultrasound alone would be insufficient.

The evidence of the Claimant that the Defendant told her after the procedure that she “thought she had removed too much fat” and that the “fat just kept coming and coming” also falls to be considered in this regard. On the balance of probabilities, I accept that this was said. Accordingly, it is unlikely, despite the fact that the VASER machine was measuring the fat removed, that the Defendant had sufficient control over or was able to have regard to the amount of fat which remained in place subcutaneously.

There is an additional matter. The Claimant is undergoing extensive procedures for the replacement of fat in tissues which have been assessed clinically to contain little or no fat between the muscle fascia and the skin. In view of her experiences, it is unlikely that the Claimant would have submitted herself to unnecessary processes, or that the advice of the treating plastic surgeons to undergo fat replacement would have been given if there was not a real problem to be addressed.

Accordingly, I would have answered the second question in favour of the Claimant, had it been necessary so to do.

All other questions of substandard care again only arises hypothetically. In my judgment, there is little or no substance to the criticisms relating to the absence of overnight facilities, hospital referral or after-care generally. At best, any identified failures would have given rise to transient discomfort, but it seems to me on a balance of probabilities that the Defendant was doing her best to alleviate the problems which were associated with the high definition VASER liposuction procedure which she actually undertook, and for which there may have been inherent risks, such as the development of seromas generally and raised haemoglobin levels.

The only issue of potential substance relates to the nature of the seromas, although again it would appear that the consequences for the Claimant diminished over a period of time, even if there may have been some implication in the eventual unsatisfactory outcome. This arises from the allegation that the probe was used negligently and over aggressively so as to cause severe internal injuries.

There is no doubt on the evidence that the seromas were unusually large and extensive. Mr Nishikawa’s theory that they were thermal burns and that the constituent parts of the seromas contained transudate, that is a combination of blood and serous fluid as fluid leaked from burned tissue is qualified by the fact that he did not examine them, but only some hard and fibrous tissue which he attributed to scarring as a consequence, several months afterwards, and there is an absence of contemporaneous evidence which confirms this is the case.

In my judgment it would have been difficult to distinguish between seromas which were caused by aggressive and unnecessarily extensive use of the VASER probe, and which may have contained transudate, and those which would have arisen from a procedure which was by its very nature one requiring a substantial amount of fat removal over a long period of time at the request (hypothetically) of the Claimant. Insofar as the burden of establishing substandard care would have rested on the Claimant’s shoulders, if it had been necessary to resolve this issue I would have concluded that the Claimant had failed to prove that the Defendant had been negligent save as indicated in paragraphs 27 to 31 above, as opposed to undertaking a procedure which the Claimant had insisted upon, contrary to the doctor’s advice, and which led to consequences in the form of excessively large seromas identified as risks beforehand.

In any event, the Claimant may have struggled to establish any causative link between any specific proven failures or want of care in relation to the matters set out at paragraphs 132-135, and the consequences for her. However, as I have indicated that is of academic interest only. The question which now falls to be considered is whether or not the Claimant’s injury and associated loss is consequential upon the undertaking of unrequested and thus inappropriate high definition liposuction.

The starting point, it seems to me, is the agreement that the Claimant has been left with an extremely unsatisfactory cosmetic result in her thighs and buttocks, with many areas almost devoid of fat, a dimpled and mottled appearance, a degree of asymmetry, and the need for fat replacement across a large area. The legs are unsightly and remain largely covered by the Claimant who is extremely self-conscious about them. There are potential psychiatric consequences, which I shall address under the heading of quantum.

The Defendant submits that on any interpretation the Claimant was hoping to achieve toned and slender legs. This would have required the extraction of 2 to 3 litres of fat on the evidence of Mr Nishikawa. There were inherent risks even in a general debulking procedure, and the Claimant has not proved on a balance of probabilities that these risks would not have materialised giving rise to the same consequence. The Defendant no longer pursues suggestions that the failure to wear the compression stockings, hereditary telectangasia, pre-existing anaemia, or the failure to undergo the insertion of gold threads have any causative potency.

In my judgment there is no substance to the Defendant’s argument. Even on the Defendant’s evidence the risks were materially increased by the more extensive and aggressive procedure involved in high definition. Dr Glancey referred to a frequency of consequence as the differential. I am satisfied, on a balance of probabilities, that if the Claimant had had a measured degree of liposuction applied to selected areas, as she had requested and expected, the amount of fat removed would have been significantly controlled and she would not have had the consequences of this highly unsatisfactory cosmetic result which now requires extensive revision.

The Claimant is entitled to be compensated, accordingly, for the damages which flow from these consequences.

I propose to follow the various headings in the schedules for the purposes of assessment, noting that despite the belief on the part of the Claimant that a figure was agreed for general damages as a result of the cosmetic and psychiatric injury, this is not in fact the case. My summary is provided in tabular form at the end of this judgment.

The pain, suffering and loss of amenity has two elements. The first of these is represented by the physical consequences, comprised in the cosmetic appearance which by my judgment above is consequential upon the unrequested removal of excessive quantities of fat following high definition liposuction, and the pain and suffering associated with the further cosmetic procedures which are now necessary including fat transfer and breast reduction. The latter is disputed in terms of a separate item of special damages. The second element relates to the psychiatric consequences, which have been described in detail by Dr Meehan in his evidence. The extent of any mental health symptoms is also disputed by the Defendant with a challenge to other items of special damage, and in the circumstances it would be convenient if I addressed these issues at the outset of this assessment and provided my findings.

In relation to the three aspects which have been described by Dr Meehan, namely post-traumatic state of mind, adjustment disorder and exacerbation of pre-existing depression, the first two are clearly capable of being attributed to the treatment on the basis of the expert’s evidence, which I unhesitatingly accept. The emotional and behavioural symptoms which were clearly interfering with her life, and included two suicide attempts, were still present at the time of his examination in 2016, although it was expected that when addressed by cognitive behavioural therapy there was likely to be a significant improvement. I accept the psychiatrist’s evidence that it was not unreasonable for the Claimant to await further improvement of the cosmetic outcome before undertaking this therapy. Thus, for these aspects the Claimant is entitled to be compensated for problems persisting over several years, but which are expected to diminish.

Overlying the features of post-traumatic state of mind and adjustment disorder is the exacerbated depression, which will also have affected the Claimant’s behaviour and functioning, although the evidence of Dr Meehan is that the Claimant is generally a high functioning individual. The problem in terms of assessment is the extent to which the Claimant would have had symptoms associated with her depressive condition in any event. It is clear that she was regularly seeing a psychiatrist for therapy purposes (to the extent that she was on medication immediately prior to the cosmetic procedure in question) and had “unbearable symptoms” at this time. She was regarded as vulnerable to episodes of depression in response to any traumatic event in life, although prior to the treatment her depression was regarded as mild, whereas subsequently it had become severe.

Dr Meehan was unwilling to specify how much treatment would have been required in the absence of the botched procedure, save that it was significantly more than might have been expected. Whilst assessment of attributability of ongoing depression is not straightforward in the circumstances, doing the best that I can it seems to me that approximately 60% of the problems associated with depression, including the symptoms and necessary treatment are referable to the Defendant’s failure.

Only the breast reduction procedure appears to be relevant here. Regrettably, the reasonable need for such surgery is not addressed by the expert evidence, although Mr Nishikawa refers to the procedure involved in his second condition and prognosis report. It is clear that the Claimant by then (late 2016) had undergone two procedures, the first involving the insertion of a smaller implant, and the second a further reduction with associated mastopexy or skin tightening. Previously she had had breast augmentation. The case quite simply is that there was a significant disproportionality between the greatly reduced in size lower part of her body, and larger breasts which detracted greatly from the feminine figure which she had wished to achieve. It was also recommended by her plastic surgeon.

It seems to me that whilst there are many who would not have wanted to undergo so many corrective cosmetic procedures, it could not be said to have been unreasonable for this particular Claimant to have chosen to reduce her breasts in size because of the perception of disproportionality. The Defendant must take the Claimant as she is found, and in this respect a subjective assessment is required. I regard the breast surgery as attributable and not unreasonable, and accordingly the pain and suffering associated with these procedures is relevant to my assessment.

The court has been referred to the 19^th edition of the Judicial College guidelines for the assessment of general damages. It is acknowledged, however, that little assistance can be derived from exemplar cases involving scarring and unpleasant cosmetic injuries because every case is distinctive and individual. (Those cases referred to by Ms Godfrey, it is noted, were mainly out-of-court settlements). In reality there should be some recognition of the fact that the Claimant’s present appearance is likely to improve with further surgery which is the subject of a separate and specific claim for special damages.

Nevertheless, in addition to the objective appearance, allowance should be made for the Claimant’s reaction to her perceived disfigurement, and the lifestyle which she had previously enjoyed both professionally and in a leisure context. To her, femininity, a relatively youthful and attractive appearance and the ability to wear the clothes which she liked and which showed off her body were all important.

As I have indicated it is also necessary to take into account the number of debilitating procedures which the Claimant has and will undergo. In the circumstances it seems to me that assessment of the physical aspect cannot simply identify from chapter 10 of the 13^th edition of the JC guidelines a maximum award for a disfiguring scar (£17,275). This is only part of the picture. Accordingly, I take into account all those other features which I have identified, in coming to the conclusion that for this aspect of PSLA an appropriate figure would be £25,000.

To this must be added an element to reflect the psychiatric injury based on my assessment above. This will largely be by way of aggregation, because it is a different injurious aspect. The court has been referred to chapter 4 of the JC guidelines, and the category described as “moderately severe”. I am satisfied that the consequences for the Claimant clearly fit within this category, although it is to be noted that the bracket is a very large one indeed, being £14,500 and £41,675. A single exemplar case from a court award in 2008 before a district judge at Maidstone County Court (Bildstein) has been provided in which £20,000 was assessed for the component part for the psychiatric injury in not dissimilar circumstances.

Allowance must be made for the fact that some of the Claimant’s mental health consequences arise from the continuation of a pre-existing depression, but in my judgment a figure of £20,000 would represent an appropriate award for the non-physical injuries in this case.

It is not appropriate to discount the total for overlap, and accordingly I assess general damages for pain, suffering and loss of amenity in the total sum of £45,000. To this must be added interest, and it would appear that the Claimant’s figure of 3.74% service to trial date is not challenged.

This is pursued as a discrete head of damages. It is hotly disputed. The Claimant seeks the sum of £10,000 on the basis that the cosmetic injury, together with the deterioration in her mental health, has prevented her from pursuing a part-time occupation as a fitness instructor from which she derived tremendous enjoyment, and that both cosmetic and psychiatric injuries have significantly impacted on her ability to pursue the business as a beautician providing specialist services of permanent make-up. It is said that her daughter is largely responsible for the day-to-day running.

A claim for congenial employment arises if as a result of an injury giving rise to physical or mental disability, an individual has been required to give up a job which he or she enjoyed, and which provided satisfaction and status.

These claims were at one time pursued by those who could no longer work as police officers, significant professions or in highly fulfilling roles, but are now regarded as appropriate across a wide range of jobs which require a degree of skill or experience, and which are rewarding. I accept the Claimant’s evidence that she has been forced to abandon her role as a fitness instructor because of the cosmetic consequences, although her evidence is far less clear in relation to a diminished role in the business. In principle, I agree that she is entitled to an element of compensation, but the suggested figure of £10,000 is too high in the circumstances. In my judgment, an appropriate element to compensate the Claimant in this regard would be £5000.

The sum pursued under this head according to the schedule is £1928.96. This is disputed not in relation to the calculation, or rate, but on the principle that the Claimant, who had elected to have a VASER procedure, would have required some care post-surgery in any event. In relation to the claim for care arising out of the revision procedures, is submitted that these were at the request of the Claimant and not as a result of any negligence. However, it has not been challenged in the evidence, nor was it put to Mr Nishikawa that the subsequent procedures involving the insertion of fat were unnecessary.

The sum is calculated on the basis of 4 hours per day initially for 46 days following the initial surgery, and thereafter for three further periods of two weeks an hourly rate of £6.85, which is then discounted as it was gratuitous care provided by the Claimant’s daughter.

It seems to me that there is some merit in the Defendant’s argument that a degree of care would have been provided in the period following the procedure in any event, that is assuming that it had not been high-definition liposuction. This is difficult to measure, but I cannot accept that there has not been some increase over and above the care which would have been required, because of the significant consequences associated with excessive seroma development, anaemia and the debilitating symptoms associated with the recovery. I assess this at 50% in the initial period. Accordingly I am prepared to allow 23 days at 4 hours per day. This equates to £472.65 after allowing for a Housecroft deduction.

In relation to the three later periods, in my judgment 4 hours a day is excessive bearing in mind that the Claimant was not having to endure similar consequences from these procedures, nor do I believe that 14 days is justified. I allow two hours per day over a total of 10 days on each occasion, which equates to a total of 60 hours. Applying the rate sought, but discounting, the total which I assess is £308.25.

In relation to past gratuitous care, the Claimant in my judgment is therefore entitled to the sum of £780.90.

Under this head, £6040 is claimed. It relates solely to the earnings as a fitness instructor. I have already indicated that I accept the Claimant’s evidence that as a result of the cosmetic consequences of the treatment she has been forced to give up her work as a fitness instructor. The objection to this claim is in principle, and there is no challenge to the calculation, which is based upon the number of weeks lost, at a weekly rate of £27.50 for one class and £25 for the other. I allow this sum in full.

The sum of £40,413.57 has already been incurred. It represents £22,466.97 spent on several procedures for fat transfer. It is my understanding that on the establishment of negligence this aspect is agreed as recoverable. The element of £17,946.60 represents the cost of breast revision surgery which has been challenged. However, as I have already indicated (paragraph 147 above) I regard this sum as reasonably incurred, and accordingly the reconstructive surgery is allowed in full.

The sum claimed is £22,474. The Defendant makes only a modest concession of £1080 in relation to 2 sessions of CBT. The bulk of the claim which comprises numerous sessions with two psychiatrists, a programme of detox at the Priory because of the abuse of alcohol (said to be attributable to the depressive condition) and the trip to Ibiza recommended by Dr Collins. The Ibiza clinic cost £12,500.

I have already addressed the question of attributability of the psychiatric consequences to the index treatment at paragraphs 144-5 above. In my judgment, the Claimant would have been required to undergo some treatment in any event in relation to her ongoing depressive condition and on the balance of probabilities would have incurred costs in this period subsequent to the cosmetic surgery as she had prior thereto. It seems to me that the fairest and most practical way of assessing this particular head of loss (which is challenged as to principle rather than breakdown or the accuracy of the calculation) is to allow the proportion which I have already determined to be appropriate, that is 60%. There is no reason to differentiate the treatment in Ibiza, which was recommended by a psychiatrist, even though he may have had a financial interest in the particular institution. Accordingly, under this head, the Claimant is entitled to £13,484.40.

I make a similar adjustment in relation to the travel costs which are claimed, and accordingly under this head I allow the sum of £1476.70.

The Claimant seeks the sum of £3447 under this head. It is on the basis that the procedure caused her body to be dramatically altered with vast fluctuations in weight, making it impossible for her to use the clothing which she had been proud to wear previously. She had to cover her legs and could no longer wear any tight-fitting clothing. In particular, on one occasion (the launch of a new salon) which was attended by several celebrities, she purchased an expensive outfit which flattered her figure, because she was very self-conscious about her appearance.

Whilst the various items are supported by receipts, in my judgement this is a very broad and unspecific claim, which does not take into account the fact that there would probably have been some adjustment in any event with more modest fat removal, and bearing in mind the wish of most women of her age, background and society connections it is inevitable that the Claimant over this period would have been wanting to add to her wardrobe, adapting styles etc. I am not satisfied that there is sufficient evidence that all these purchases were attributable to the established negligence. I am prepared to make some allowance for the fact that an additional cost would have been involved, but on a far more modest basis than that claimed. Further, it is likely that the Claimant would have purchased an expensive outfit for the salon opening in any event. An appropriate sum under this head, in my judgement, is £1000.

The Claimant seeks to recover the cost of the liposuction treatment. This is a contractual, and not a tortious head of loss. Whilst it is correct that the claim has been pursued both in contract and tort, this is on the basis of coexisting duties, rather than a failure of consideration in my understanding. The Claimant is to be compensated for the consequences of the Defendant’s breach of duty (effectively providing high definition liposuction rather than moderate fat removal which is what the Claimant had requested). She had agreed to undergo the treatment, and in this respect I agree with the Defendant that a refund of the procedure cost is not an appropriate head of damages.

There appears to be no issue but that the Claimant requires two further procedures by way of revision surgery, that is fat removal under the care of Dr Mallucci. This cost is recoverable.

The future psychiatric treatment is more problematic. It involves one aspect (trauma focused CBT) which is recommended by Dr Meehan, on the basis of 30 sessions. I find on the balance of probabilities that this is reasonable, and will be undertaken by the Claimant, even though hitherto she has declined to undergo such treatment. To some extent there will be an overlap with other aspects of her psychological make-up, and by my findings not all of this is attributable to the index procedure.

In relation to the cost of treating further episodes of depression, it is noted that this is expressed by the psychiatric expert to be a contingent cost, because the Claimant is at risk, on account of her vulnerability, and it is by no means certain, particularly when this litigation is resolved, that the risk will materialise to such an extent. Further, there is an element (on the basis of my findings above) of attributability of the depression to other factors in the Claimant’s life.

However, a contingency cannot be ignored altogether, and it is reasonable in the circumstances to make some allowance for the fact that an attributable cost might be incurred. It cannot be calculated specifically, but it seems to me that a fair approach would be to regard this as an item of general damages, in the way that many risks are assessed. In the circumstances I am prepared to allow the Claimant the total sum of £5000 under this head (future psychiatric treatment) to cover both the CBT trauma focused sessions and the risk of further depressive episodes requiring psychiatric intervention.

The Claimant pursues a conventional calculation in relation to her inability to continue to work as a fitness instructor for the reasons already identified. Alternative multipliers have been proposed (taking into account the new discount rate of .75%) and the annual loss is assessed at £2625. As I have indicated above, I accept that the Claimant’s decision to discontinue working as a fitness instructor was both reasonable and attributable to a loss of confidence and poor mental health. However I am less convinced that the Claimant would in any event have continued working in this role up to the age of 60 years. Insofar as other factors would have played a role with recurrent episodes of depression only partially attributable, in my judgment on a balance of probabilities the Claimant is more likely to have focused on her business and to have given up instructing fitness well before she was 60.

I propose to make a broad brush assessment under this head of loss which would be appropriate to lost opportunity/Blamire type claims. In my judgment an appropriate sum would be £7500.

This claim is associated with the care and assistance which the Claimant will require during periods of recovery from the revision procedures yet to be undertaken. For reasons given above, I do not believe that four hours is required. An appropriate sum can be assessed at £500.

This is a relatively modest claim relating to the cost of travelling for future treatment. There is no reason why it cannot be allowed in full as claimed.

This claim replicates that which is sought in relation to past loss for which receipts have been provided. My comments above are pertinent. There will be some additional cost involved, and whilst this is difficult to measure, it seems to me that an appropriate sum would be £1000. Bearing in mind the Claimant’s lifestyle, it is likely that she would have been inclined to buy expensive clothes in any event, and the adjustment will relate to the style and the extent to which she no longer exposes those parts of her body of which she is not confident. It must be borne in mind that the Claimant is undergoing extensive revision procedures which should have a significant effect on undoing much of the damage caused by the index procedure.

I provide below by way of collection the various awards of damages which I make.

The parties are now invited to agree the terms of any final order prior to handing down of this judgement. Further, my arithmetic should be carefully checked. If there are any consequential orders upon which further direction or determination is required, this should be indicated, and if appropriate further submissions can be invited.