Claire Worrall v DR. Helena Antoniadou
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice David Richards |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1219 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2015/2044 |
| Date | 06 December 2016 |
[2016] EWCA Civ 1219
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
HIS HONOUR JUDGE DAVEY QC
Claim No. 3YQ06419
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
and
Lord Justice David Richards
Case No: B3/2015/2044
Darryl Allen QC (instructed by Wake Smith Solicitors for the Claimant/Respondent
Jeremy Roussak (instructed by Ashton Solicitors) for the Defendant/Appellant
Hearing date: 1 November 2016
This is an appeal against an order made by His Honour Judge Davey QC in the Bradford County Court on 5 June 2015 pursuant to which the judge awarded damages in the sum of £14,378.47 to the Claimant/Respondent Mrs Claire Worrall against the Defendant/Appellant Dr. Helena Antoniadou. The Claimant alleged that she had undergone a breast augmentation operation in reliance upon negligent advice given by the Defendant, the consultant plastic surgeon who performed the operation. The enhancement effected, if any, was short-lived and within 10 months of the operation the Claimant was advised that a more invasive procedure, an uplift or mastopexy, was necessary. It was the Claimant's case that prior to undergoing the relatively straightforward breast augmentation procedure she was advised by the Defendant that a mastopexy would not be needed for another 5–10 years. The Claimant's case was that had she not received that advice she would not have undergone the breast augmentation procedure which she did, at the age of 28. She would have waited until her mid 30s and then undergone a combined breast augmentation and mastopexy procedure.
It is common ground that if the Claimant was given the advice alleged, that advice was negligent. No reasonably competent plastic surgeon could have given such advice and the Defendant denies having done so. The procedure left the Claimant dissatisfied with the appearance of her breasts which she said began to droop not long afterwards, although that is not really the gravamen of her complaint. The gravamen of her complaint is that, within 10 months of the operation, she was being advised that an uplift was necessary. Her complaint is thus that she underwent an unnecessary procedure which she would not otherwise have done which incidentally left her in temporary pain. In due course the private clinic at which the Claimant underwent the procedure agreed to carry out a mastopexy free of charge, but unhappily before that could be done in December 2011 the Claimant suffered a transient ischaemic attack which led to the discovery of cardiac problems which ruled out surgery. In those circumstances the clinic instead refunded the cost of the original breast augmentation procedure.
The judge found that the Defendant did not give the advice alleged. The judge did however find that the Claimant left her single pre-operative consultation with the Defendant with the impression that she would have at least 5 years after the breast augmentation procedure before a mastopexy would be necessary. The judge found that the Defendant, albeit unintentionally, allowed the Claimant to go away from the consultation with this impression and that she was in that regard negligent. The Defendant appeals.
The background may be very shortly stated. The Claimant was born on 16 November 1981. In the summer of 2010 she was thus 28 years old. She was a police officer. By this time she had had four children. Before her first pregnancy her bra size had been 34DD. After breastfeeding all four of her children her breasts had shrunk in volume to a C cup size and, in her estimation, they had begun to droop. In the course of 2010 the Claimant divorced her second husband. This coincided with her losing confidence in herself and in her breasts, about which she felt self-conscious. By the end of June 2010 the Claimant was planning her marriage to her third husband which was due to take place in November.
By the end of June 2010 the Claimant had decided to look into breast augmentation surgery, and she discovered on the internet the existence of the MYA clinic in Leeds. MYA is an acronym for "Make Yourself Amazing". The Claimant was keen to use the MYA clinic because one of her colleagues at work had used it and had achieved satisfactory results. The Claimant was also keen to have breast augmentation as soon as possible because of her impending wedding. Her aim was to restore her breasts to their original pre-pregnancy volume and to overcome what she perceived as their droopiness. She was however clear in her own mind that she did not want to undergo an uplift or mastopexy. Another friend had recently undergone a mastopexy procedure and it resulted in what the Claimant considered to be excessive scarring, as well as involving a lot of pain and an extended recovery period. Mastopexy was a more invasive procedure which the Claimant did not wish to undergo at that time.
The Claimant attended a pre-operative nursing assessment at the MYA clinic on 27 June 2010, a patient care co-ordinating appointment on 24 July and another nursing assessment on 27 July. It is common ground that throughout her dealings with the MYA clinic the Claimant made it clear that she did not want an uplift operation, and that if that was to be the surgeon's advice, she would not be going ahead with the breast augmentation procedure.
It was not until 28 July that the Claimant met the Defendant for the first time. However on 24 July the Claimant paid a deposit and took advantage of a discount on the fee for the operation which had fortuitously come about as a result of a cancellation. It was at that same stage that the consultation with the Defendant was booked for 6 pm on 27 July and the operation itself booked for 3 August. That however would involve the operation taking place less than 21 days after the Claimant's initial consultation with the surgeon. In these circumstances the Claimant was required to sign a disclaimer. That took the form of the MYA clinic's own document headed "Reflection and refund disclaimer for patients wishing to proceed with surgery prior to 21 days after the initial consultation with the surgeon", and it reads:
"I have been advised by my surgeon [and then in handwriting the phrase Dr Antoniadou is filled in] that in accordance with guidelines issued by the Independent Healthcare Association May 2003 Good Medical Practice, in order to allow an adequate time for reflection a surgeon will not normally admit any patient for a cosmetic procedure to be carried out sooner than two weeks after the initial consultation. My surgeon has explained this to me and I understand that these are the guidelines issued specifically by the Independent Healthcare Association… [et cetera]. [And then] I believe that I have been fully consulted with regard to the procedure of [and then in handwriting is filled in the phrase] breast augmentation."
That document was signed by the Claimant on 27 July and by the Defendant on 28 July. By appending her signature the Claimant indicated that she wished to proceed. Plainly the Claimant had received no advice from the Defendant before signing this document. There are a lot of things that could be said about this procedure, but the most relevant is the judge's observation that the greater significance of the document and the circumstances in which it came to be signed by the Claimant is that it is another good indicator that the Claimant was determined to have the breast augmentation operation if she sensibly could.
The Claimant also paid the balance of the fee for the operation at 5.05 pm on 28 July, whilst waiting for her appointment with the Defendant at 6 o'clock.
The resolution of the appeal turns exclusively on what transpired at the Claimant's consultation with the Defendant at 6 pm on 28 July. Although the judge did not make an express finding to this effect, he clearly formed the view that insufficient time was devoted to this consultation. Thus at paragraph 18 the judge said:
"18. Two eminent and experienced consultant plastic surgeons gave oral evidence: Mr Henderson for the claimant and Mr Percival for the defendant. Despite their expertise in the same area, they disagreed about just about everything; but one thing they did agree about was the insufficiency of time devoted to the consultation of 28 th July 2010. Mr Henderson said that he thought that there should always be at least two consultations before surgery, sometimes three, but, in his view, a breast augmentation consultation should take at least one hour and one and a half hours if mastopexy was to be discussed as well. Mr Percival thought that matters could proceed rather more quickly, but he himself considers half an hour to be the absolute minimum for a consultation such as this and himself allows 45 minutes for a breast augmentation first consultation. Mr Percival in oral evidence agreed with my suggestion that the defendant's patient list of 28 th July 2010 is cramming too much of a quart into a pint pot and, in my judgement, that remains the case even allowing for the defendant's habit to which she refers at page 293, paragraph 4 of her witness statement, of working late, sometimes not finishing until more like nine o'clock, rather than seven o'clock."
At paragraph 26 of his judgment the judge recorded his view that the circumstances in which the Claimant presented were such that adequate time was needed in order to ensure that the Claimant was given clear and appropriate advice. It is plain that the judge thought that adequate time had not been allowed.
A conclusion as to the length of the consultation is neither indicative nor conclusive as to the nature and quality of the advice given on that occasion. I agree however with Mr Jeremy Roussak for...
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