Laura Clarke v Adam Kalecinski
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 08 March 2022 |
| Neutral Citation | [2022] EWHC 488 (QB) |
| Docket Number | Case No: QB/2018/001792 |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 488 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Foster DBE
Case No: QB/2018/001792
and
and
Mr Matthew Chapman QC (instructed by Messrs Irwin Mitchell) for the Claimant
Mr Alistair Mackenzie (instructed by DAC Beachcroft) for the Third Defendant
[The First and Second Defendants neither appeared nor were represented.]
Hearing date: 09 June 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claim
This is a claim for damages for personal injury sustained during cosmetic surgery undergone by the claimant Ms Laura Clarke on 7 January 2015. Ms Clarke who was born on 11 December 1985 claims against Mr Adam Kaleciński, the surgeon who performed the breast and thigh procedures upon Ms Clarke, in Poland, and against the Noa Clinic (“the Clinic”), where the operations were carried out and she received pre-and post-operative treatment. She also sues Powszechny Zakład Ubezpieczeń Spółka Akcyjna (“PZU”) who is the insurer of the Clinic. They are respectively, the first, second and third defendants to the claim.
The real issue in the case is as to liability. For reasons which will become apparent, if liability is made out, there are no issues raised by the defendants as to the quantum of damages claimed, save for a limit to any liability which PZU may be required to satisfy, if such be found, against the second defendants. If the claimant succeeds as to liability she is put to proof as to the damages set out in her schedule of loss.
The following matters are not in dispute. Mr Kaleciński, the first defendant, is a Polish National domiciled and habitually resident in Poland although he is registered with the General Medical Council in the UK as well as the equivalent Polish regulatory body. The Clinic is a company incorporated in Poland in which Mr Kaleciński and his wife are the sole shareholders and directors; it is understood to be owned as to 49% by her and as to 51% by Mr Kaleciński.
The parties agree that the first and second defendants are liable to be sued in the Courts of England and Wales pursuant to Articles 17 and 18 of the recast Brussels I Regulation (No 1215/2012) (“ Brussels I”). The third defendant is liable to be sued in the Courts of England and Wales pursuant to Chapter II, section 3 of the Brussels I Regulation (No 1215/2012).
It is not in dispute that under Polish law the claimant has a direct action, nominally in tort, against the third defendant in respect of liabilities which may arise in respect of their insured, the second defendant. As explained by the claimant this is an “ Odenbreit claim” namely an action brought by a claimant against a wrongdoer's EU insurer in the Courts of the EU Member State where the claimant is domiciled. It is named after Odenbreit v FBTO Schadeverzekeringen NV Case C-463/06 (decided by reference to section 3 of the Brussels I Regulation: Council Regulation 44/2001 now recast in: Regulation No 2015/2012). It is an action in tort ( Maher & Another v Groupama Grand Est [2010] 1 WLR 1564 (CA)), and, subject to the applicable law of the tort and the existence of a direct right of action against an insurer, by section 3 of the recast Brussels I Regulation it gives a claimant a right to assert the jurisdiction of the English Court: the Court of the claimant's domicile (see Odenbreit above).
It is agreed that the third defendant does not insure the first defendant and that their total potential liability under the indemnity of the second defendant is limited to 200,000 (PLN) approximately equivalent to £38,500.
The claimant sues both the surgeon and the clinic, both in contract and in tort. She seeks to hold the clinic either directly or vicariously liable for the failures of the surgeons who treated her — one other Polish surgeon was involved in her care — and the nurses who cared for her at the clinic in Poland.
The contractual claim is put on the basis of breach of a contract for the provision of breast augmentation and thigh liposuction and associated pre- and post-operative advice. The joint defence of the first and second defendants admits both the contract with the first defendant as described and with the second defendant. The supply of services is in each case in London from November 2014 and in Poland thereafter until her return home on about 14 January 2015. The first and second defendants admit that they are liable to be sued in the Courts of England and Wales under Articles 17 and 18 of Brussels I and that the claimant was a consumer for the purposes of Chapter II, section 4 (“Jurisdiction over Consumer Contracts”) of Brussels I.
The claimant's case is that the duty in tort was to the effect that the services provided would be to a standard recognised as proper by a responsible body of like qualified professionals at the time of the care and operation and the implied duty under her contract was to the same effect. The first and second defendants admit in their joint Defence that that such a duty was owed.
In respect of each cause of action the breaches and the causation are denied.
The position before the court
Before turning to the more detailed facts of the case, the somewhat unusual circumstances of this hearing should be set out.
The only represented parties at trial were the claimant and the third defendant. At the outset to the action all defendants had been represented by the same solicitors, DAC Beachcroft, but they came off the record in respect of the first and second defendants in March 2021, leaving the insurer of the clinic as the only defendant represented by them, and now, the only one before the court.
The hearing took place as a hybrid hearing with Mr Matthew Chapman QC for the claimant and Mr Alistair Mackenzie appearing for the third defendant, present in Court, with one of the instructing solicitors. The two fact witnesses for the claimant appeared by video link and the solicitors also attended remotely.
Although pleadings were exchanged between all parties running to a Part 18 response from the third defendant, further engagement from the defendants has been minimal and no or little disclosure was received from any of the defendants. Accordingly, certain basic materials usually available to the court in a medical negligence action were unavailable including, for example, the document reflecting the consenting procedure.
However, in the event, no factual evidence was relied upon by any of the defendants nor did they produce any counter-vailing expert material save as to one issue: namely the limit of the indemnity offered by the third defendant in respect of any liabilities falling upon the second defendant. That matter was, in the event, agreed. Shortly before trial it was indicated that no challenge was to be made to the factual evidence to be led by the claimant, accordingly the written statement of the claimant and that of one of her parents, Jill Clarke, were proved and admitted as evidence in chief. The witnesses were not cross examined. Likewise, the medical evidence and the expert legal evidence was taken as read as contained in reports.
The third defendant however, by a case disclosed fully for the first time in its skeleton argument a few days before trial, made submissions of law concerning the adequacy and the scope of the pleadings and, in those cases where the third defendant had reserved its position, or put the claimant to proof on the pleadings, made further submissions which were dealt with as a preliminary issue.
The preliminary issue
It is not disputed that the proper law of the contract is English law and it had been anticipated by the claimant until trial that it was also a matter of agreement that the proper law of the claim in Tort was Polish law.
The claimant's skeleton argument stated it was common ground that Polish law would apply to the claimant's claim in tort and it would appear that the proceedings had indeed been managed on that basis. There was an order of 28 February 2020 described as having been made in the defendants' relief from sanctions application by which the claimant and the defendants (acting jointly) were given permission by Master Yoxall to rely upon medical evidence, and upon the evidence of an expert in Polish law. Reports were to be served by 26 June 2020, thereafter joint reports were to be served. At that stage the claimant had a consultant plastic surgeon expert and a consultant psychiatrist expert who had already reported. On 8 January 2021 Baker J made an order by consent in respect of later service dates for the medical expert evidence and again, evidence of Polish law, limited to the extent of the indemnity limit of the third defendant's policy of insurance, liability and quantum. A report on the indemnity issue was served by an expert on behalf of the defendants, and the expert witnesses were ad idem.
It seems to me clear that a matter of a few months before the trial of this matter it was anticipated that foreign law experts would opine on the substance of the case before me, namely liability, and an expert on behalf of the claimant, on the relevant provisions of Polish law.
In its skeleton argument, for the first time, the insurer raised an issue about the adequacy of the claimant's pleading arguing they had failed to plead the Polish law upon which they relied, so the proper law of the tortious claim was by default, English law.
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...you have been warned. Local Standards in Cosmetic Surgery Cases: does the Rule in Lougheed Apply? In Clarke v Kalecinski & Ors [2022] EWHC 488 (QB) the High Court was asked to determine a claim for personal injury suffered a result of cosmetic surgery undertaken in Poland. The Claimant brou......