Roger Mann (Executor of the Estate of Denise Mann deceased) v Towarzystwo Ubezpieczen Inter Polska S.A
| Jurisdiction | England & Wales |
| Judge | David Pittaway |
| Judgment Date | 09 November 2023 |
| Neutral Citation | [2023] EWHC 2794 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2016-005735 |
and
and
[2023] EWHC 2794 (KB)
David Pittaway KC
(Sitting as a Deputy Judge of the High Court)
Case No: QB-2016-005735
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Aliyah Akram (instructed by Irwin Mitchell) for the Claimant
Feliks Kwiatkowski (instructed by Ardens) for the Defendant
Hearing dates: 17 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 9 November 2023 by circulation to the parties on their representatives by e-mail and by release to the National Archives.
David Pittaway KC:
INTRODUCTION
This is an assessment of damages hearing arising out of a claim for damages following cosmetic surgery undertaken on Mrs Mann at the Noa Clinic, Poland by Dr Kalecinski. on or around 24 September 2013. Mrs Mann died on 8 February 2016. The cause of death, bronchopneumonia, was unrelated to the surgery.
The claim has had a tortuous procedural history.
Proceedings were issued on 20 September 2016 by Mr Mann, as his wife's executor against three defendants, Noa Clinic's Polish insurers, Towarzystwo Ubezpieczen Inter Polska S.A (“the insurers”), the Noa Clinic and Dr Kalecinski. The Particulars of Claim were served on 21 May 2017.
Mr Mann brought proceedings against the three defendants for breach of a contract made in England and Wales for the provision of cosmetic surgery by Dr Kalecinski at the premises of the Noa Clinic in Poland. The claim alleged that under Polish law Mr Mann had a direct right of action against the insurers, as the insurer of the Noa Clinic pursuant to Article 18 of Rome II. Mr Mann's case is that the governing law of the contract was that of England and Wales and, in respect of Dr Kalecinski and Noa Clinic, pursuant to Article 8(1) of the Brussels (1) Regulation (Regulation (EU) 1215/2012 of the European Parliament and of the Council) he was entitled to bring a claim in this jurisdiction. Further that Mrs Mann's injuries were caused by the negligent surgery by Dr Kalecinski for whom the Noa Clinic and the insurers were liable.
A default judgment was entered against Noa Clinic's insurers on 31 August 2017. The insurers applied to set aside that judgment on 14 April 2019. Master Thornett dismissed that application on 1 November 2021, after hearings on 11 November 2019, 29 July 2021 and 5 October 2021. On 24 March 2022 the claim against Dr Kalecinski and the clinic were stayed, pending disposal of the claim against the insurers. An appeal against Mater Thornett's order of 1 November 2023 was dismissed by Mrs Justice Foster on 3 May 2021.
The matter appeared before Caspar Glyn KC on 15 May 2023 for the assessment of damages hearing, which was adjourned following submissions made as to the purpose and effect of the default judgment. That hearing was also adjourned to allow Mr Mann to obtain expert medical evidence addressing causation.
Caspar Glyn KC directed that the following allegations had been conclusively determined against the insurers:
i) “Failed to perform or undertake an adequate assessment of the deceased's needs prior to the operation;
ii) Failed to adequately warn the deceased of the risks involved in the prospective procedures;
iii) Failed to perform the thigh tuck und breast reduction procedures on the Deceased to an acceptable standard;
iv) Negligently severed lymphatic vessels during surgery;
v) Failed to realise that that a lymphatic vessel had been severed and take appropriate action thereafter;
vi) Failed to diagnose nipple necrosis of the deceased's left nipple;
vii) Failed to adequately treat nipple necrosis of the deceased's left nipple;
viii) Failed to provide an appropriate standard of after care;”
As well as the assessment of damages hearing before me, there remains an outstanding issue as to whether the limitation of the indemnity on the insurers policy, of 100,000 Euros, is inclusive or exclusive of the costs of these proceedings. Ms Akram, on behalf of Mr Mann, accepts that the damages claimed are now below 100,000 Euros, however, the limitation is of considerable importance to the question of costs. Both parties are agreed that in the absence of evidence from Polish legal experts, which is not available today, that issue should be put over to another hearing.
EVIDENCE
Ms. Mann had a history of morbid obesity and multiple other physical and mental health conditions. In January 2010, she underwent a gastric bypass procedure on the NHS at St. Thomas' Hospital, London. The procedure was successful, and her recovery was unremarkable. She subsequently lost more than 20 stones in weight, dropping from 38 to around 15 stone, reducing her BMI to 32. As a result of the massive weight loss, she was left with excessive skin, which caused her severe concern. This large amount of excess skin on her breasts, thighs and abdomen hung down and restricted her mobility. She was unsuccessful in seeking to have the excess skin removed by the NHS. Through searching the internet, she found the Noa Clinic, Poland where Dr Kalecinski was offering cosmetic surgery.
On 25 May 2013, Ms. Mann travelled to the Noa Clinic, Poland for the removal of the excess skin by Dr Kalecinski. After an initial brief consultation, Ms. Mann was considered to be a suitable candidate for multiple post-bariatric surgeries (abdominoplasty, breast reduction, thigh lift and liposuction to knees and thighs). She underwent the first session of surgery, and later told Mr Frati, consultant plastic surgeon, in 2015, that she was generally satisfied with the outcome. However, she was not completely happy with the appearance of her abdomen. She nonetheless decided to go back to the Noa Clinic for further surgery on her breasts and thighs. She returned to Poland on the 23 September 2013, where after a brief preoperative consultation, further surgery was carried out the following day by Dr Kalecinski.
The course of events that followed is set out in the agreed joint statement prepared by Mr Frati and Professor Myers, the parties' expert plastic surgeons, on 22 July 2023.
“ 2.11 She returned to the UK on 1 October 20l3 having received Dr Kalecinski's reassurances, but her nipple remained black and started to deteriorate. She also reported tightness over the abdominal wound and the feeling that her abdomen was full of fluid particularly over her pubic area.
2.12 Ms. Mann then noted that the nipple was getting worse. During the postoperative period, she repeatedly approached Dr Kalecinski in respect of her concerns but Dr Kalecinski told her that her nipple would heal of its own accord over time. The scars on her thighs started leaking clear fluid. On 14 October 2013, she was told by Dr Kolinski's assistant that this was normal, and that the fluid would drain away over time. She was advised to visit her GP for further management.
2.13 The fluid collection did not drain away, and it became increasingly painful. A large amount of pus fluid was continuously leaking from her thighs.
2.14 Ms. Mann again visited her GP who made an urgent referral to the NHS to attend Medway Hospital on 21 October 13 where she was admitted.
2.15 Whilst at the hospital, she underwent various investigations: including ultrasound and computerised tomography [CT] scans. She was assessed by the surgical team and was noted to have a necrotic left nipple with a wide area of superficial infection for which IV ABX administered.
2.16 The USS and CT scan showed abscesses in both her thighs, and an extensive infection to her left necrotic nipple. However, these former could not be removed via the USS. She was put on IV antibiotics. She underwent emergency surgery to have the collections evacuated from both thighs. A washout was also performed. The left leg in particular was shown to have an extensive liquefied collection measuring 190 x 178 mm. A lymphatic vessel was also noted to be cut during her surgery on 24 September 2013. VAC drains were inserted to both thighs wound and were connected to a pump to keep the wounds clean and stimulate healing.
2.17 Ms. Mann was kept for 10 days after the emergency procedure. She was discharged with VAC pumps still in situ.
2.18 After 2 days, she then returned to the A&E, and she was kept for five days during which she was draining a lot of fluid. At discharge the VAC was removed and her thighs wound were packed with gauze. A district nurse was arranged on a daily basis for wound care until June 2014.
2.19 Ms. Mann's infection eventually resolved but she was left with permanent injuries as a consequence. She had large areas of scar tissue on her thighs, stomach, arms and breasts and had poor contouring of her thighs. She had suffered seromas and cellulitis, and continued to suffer from lymphedema. Since then she had struggled to come to terms with what had happened to her and she remained deeply traumatised by her experience.
2.20 She attended the hospital and wound clinic on a regular basis for treatment. She also experienced significant and constant pain in her thighs. Ms. Mann reported a significant impact on her emotional wellbeing.
2.21 Upon review she was told that she has been left with poor scarring and poor contours of her thighs, for which revision surgery will be mandatory, and also suffers from lymphedema us a result, for which she is required to wear stockings. She was informed that she is likely to need revision surgery to her breast although the prospects of success are low. The overall outcome of all the surgery that she had undergone was poor.
2.22 In February 2016, Ms. Mann suddenly passed away in her sleep on 8 February 2016. The postmortem report showed that the cause of death was bronchopneumonia.”
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