Tort Law

Tort Law


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Tort Law: Medical Negligence (Cosmetic Surgery) – Part 1

Tort Law: Medical Negligence (Cosmetic Surgery) – Part 2



Current Status of Liability

Australians spend more than 1 billion dollars on cosmetic surgery which is far more over than Americans. Cosmetic surgery is popular in contemporary society since it makes people feel comfortable and better about themselves; consequently, cosmetic surgery is a lucrative industry.[1] Doctor Russell Knudsen, who is the president of the Australasian College of Cosmetic Surgery (ACCS), said that college member practices increased in 2010 from 10 percent to 20 percent. The most common cosmetic surgery procedures in Australia are:[2]

  • Arm lift
  • Body contouring
  • Body lift
  • Breast augmentation
  • Breast lift
  • Brow lift
  • Chin surgery
  • Ear surgery
  • Eyelid surgery
  • Fat lift
  • Liposuction
  • Nose surgery
  • Thigh lift
  • Tummy tuck


As a result, medical tourism is also increasingly growing; many Australians prefer going overseas for cosmetic surgery procedures at a cheaper cost than in Australia. However, there are fewer safeguards and regulations for patients in place for domestic and overseas cosmetic procedures. The most recent case of cosmetic surgery failure overseas is 29-year-old Gold Coast Australian Evita Sarmonikas, who reportedly died from a heart attack after buttocks and abdomen cosmetic surgery in Mexico due to medical negligence. Soon after they heard about the tragic news of Evita; they went over to Mexico and stopped the body from being cremated and applied for a private autopsy. Andrea, who is the sister of Evita, has revealed that a heart attack was not the actual cause of Evita’s death:[3]


“Evita did not die from a pulmonary embolism nonthrombotic as we were first, we have now lodged the report of the second autopsy through the proper criminal procedures. Contrary to what was ruled by the doctor of the Attorney-General of the State of Baja California, the second autopsy determined that my sister was perforated on more than  four occasions in the right lung, causing a haemorrhage that led to her death.


Another cosmetic surgery failure case in 2014 is Appleton v Norris.[4] The 26-year-old woman (appellant), who had asymmetrical breasts, consulted a doctor (respondent) about plastic and reconstructive surgery. The appellant had grade III ptosis in both breasts, and the right breast was smaller and one centimeter higher than the left. The respondent performed bilateral mastopexies and simultaneous augmentation of the breasts. Unfortunately, the appellant felt that her right breast was more swollen than the left, and she experienced nipple discharge from her right breast a few days later. The appellant had an ultrasound test performed which showed fluid collection around both breasts. The appellant returned to the respondent and had a surgical revision under local anaesthetic in the respondent's rooms and had her right implant adjusted. However, the inflammation did not stop and the right breast tore open, exposing the underlying prosthesis. The appellant was first admitted to Auburn Hospital and treated with intravenous antibiotics and was then readmitted for further surgery to her right breast, which was sutured under general anaesthetic. Although the incision remained closed for a few days, it once again burst open and a much larger hole developed immediately above the prosthesis. On 14 January 2010, she was readmitted to Auburn Hospital and a surgical registrar removed both implants and left the drainage tube in her right breast. The primary judge held that the appellant had been left with significant scarring and breast asymmetry as a result of the repeated surgeries and delayed healing. There is also extensive pitting of the skin on the lower part of the right breast.


Protecting individuals from negligence torts and compensating victims of tortuous actions is one of the objectives of tort law. Negligence is the failure to exercise the level of care that a reasonable person would have exercised in similar circumstances. The Health Legislation Amendment Bill[5] was submitted to the parliament in 2008. The purpose of the legislation is to protect children, teenagers, and young adults from high risks associated with cosmetic surgery. This tort ensures that people take reasonable care by taking into consideration the foreseeable possible harm they may cause to others. The following are the elements of negligence:[6]

  • Duty of care
  • Breach of duty : S9 CLA
  • Causation: S11 CLA
  • Defenses and damage


Duty of care


Australian courts must first establish whether the doctor owed the patient a duty of care. The court examines the doctor’s conduct and determines whether a reasonable person would have done the same under similar circumstances. In general, a defendant will owe the plaintiff a duty of care in two situations.

  1. When the relationship between the plaintiff and the defendant falls within an established category in which the court is required to impose a duty of care. In the cosmetic industry, cosmetic surgeons will only be held liable in circumstances where it can be determined that the patients owed the cosmetic surgeon a duty to take reasonable care to avoid causing the patients damage or loss. Doctors and patients fall in this category: Rogers v Whitaker.[7]
  1. A novel fact situation in which the court adopts the incremental approach, the salient features approach, or the reasonable foreseeability approach to determine whether the defendant owes a duty of care to the plaintiff.



Professionals have a legal duty to exercise reasonable care and skill when handling clients. In the event they make an error that a reasonable professional in the same field would not have committed and the client suffers injury or harm as a direct result of their error, then the client is entitled to compensation. A negligent botched cosmetic surgery is medical negligence; all cosmetic surgery practitioners have a duty of care to ensure a patient’s safety and wellbeing and to avoid unnecessary injury.[8]

Common negligence claims in cosmetic surgery include substandard surgical outcomes such as excessive scarring, infections, and so forth, along with failure to obtain a patient’s fully informed consent for that procedure. The risks associated with cosmetic surgery are:[9]


  • Unfavorable scarring
  • Bleeding (hematoma)
  • Infection
  • Fluid accumulation
  • Poor wound healing
  • Skin loss
  • Blood clots
  • Numbness or other changes in skin sensation
  • Anaesthesia risks
  • Skin discoloration and/or prolonged swelling
  • Fatty tissue found deep in the skin might die (fat necrosis)
  • Major wound separation
  • Asymmetry
  • Pain, which may persist
  • Deep vein thrombosis, cardiac, and pulmonary complications
  • Possibility of revision surgery
  • Suboptimal aesthetic result



When an individual selects a cosmetic surgery practitioner, he/she fully believes in the practitioner to deliver the desired results. Nevertheless, thanks to the surge in cosmetic surgery, many facilities have practitioners that are either not properly qualified or negligent when handling patients.[10]  We will discuss this matter in greater detail in the tort reform section. Once under the practitioner’s guidance, he/she has a duty to care for the patient in line with the right medical practices and rules.


Breach of duty

This is the failure to exercise reasonable care. Once a legal duty of care has been established, the next step is to ascertain whether the defendant breached that duty of care. The onus of proving breach of duty rests with the plaintiff pursuant to the Civil Liability Act 2003 (QLD) section 12. Based on section 12, the patients bear the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation in respect to the liability for breach of a duty.


According to section 9 (1) in the Civil Liability Act 2003, a person does not breach a duty to take precautions against a risk of harm unless:

(a) The risk was foreseeable (that is, it is a risk of which the person knew or ought           reasonably to have known); and


(b) The risk was not insignificant; and

(c) In the circumstance that a reasonable person in the position of the person in question would have taken the precautions.


Section 9 (2) states that in deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following:

(a) The probability that the harm would occur if care were not taken

(b) The likely seriousness of the harm

(c) The burden of taking precautions to avoid the risk of harm

(d) The social utility of the activity that creates the risk of harm



In Australia, cosmetic surgery practitioners have a duty to obtain the patient’s consent for any procedure. The practitioner must disclose all the information on the benefits, consequences, and potential risks involved in addition to providing other alternatives to the procedures.[11] An individual then gives informed consent after learning and understanding the potential risks and benefits involved. Failure to obtain fully informed consent before undertaking any procedure is a breach of duty. Since cosmetic surgery practitioners are regarded as healthcare professionals, they have a duty to exercise a high degree of competency and care when handling patients.[12]


In the event of the failure to exercise the level of skill and care that a reasonable plastic surgery practitioner should provide under similar circumstances and the patient suffers harm as a direct result, then the practitioner is held liable. In the landmark of Bolam v Friern Hospital Management Committee (1857),[13] the court held that:

'A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.'


Rogers v Whitaker (1992)[14]



The plaintiff lost sight in her right eye in childhood and had an eye operation for cosmetic reasons at age 47. The plaintiff asked the defendant few questions as to the possibility of side effects, but she did not ask about complications to her left eye. The defendant was aware of 1 in 14,000 risks of sympathetic ophthalmia which could cause blindness in her left eye (which was in good condition) but failed to warn the plaintiff. Consequently, the plaintiff suffered sympathetic ophthalmia and was blinded. The plaintiff litigated the defendant for negligence of surgeon's failure to warn the risk of blindness.



HCA held that the Bolam[15] test could not be adopted in this case involving advice or information from doctor to patient, yet it might be appropriate in the case of treatment.


What is the Bolam Test?

The Bolam test arose from English tort law and became the yardstick of medical negligence. It states that the law imposes a duty of care between a doctor and their patient, but the standard of care is a matter of medical judgment.



Once the court has established that a duty of care existed, and that the duty of care was breached, the plaintiff must then prove that the breach was the actual and immediate cause of the harm suffered. In the Ipp Report, the 'necessary condition' test has replaced the 'but for' test, which allows Australian courts to adopt a common sense approach to causation in cases where the 'but for' test does not produce a fair and just result.

Australian courts have departed from the Bolam decision; instead, they apply the reasonable patient test as opposed to the opinion of a reasonable body of doctors. The patient is the one that decides whether to undergo a cosmetic surgery procedure. However, before making the decision, the patient must receive information to facilitate learning and understanding the risks and benefits of the proposed procedure. The majority decision in Rogers v Whitaker  held:

'The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it.'


The claimant bears the burden of proof of all the elements of a case in a medical negligence suit. The Civil Liability Act 2003 (QLD) section 11 (1) (a) (b) tightens the principles of causation.[16]

            (1) A decision that a breach of duty caused particular arm comprises the following          elements:

(a) The breach of duty was a necessary condition of the occurrence of the harm   (factual causation)

(b) It is appropriate for the scope of the liability of the person in breach to  extend to the harm so caused (scope of liability)


Establishing causation in a medical negligence case based on failure to warn a patient before a procedure has proven to be a difficult task; establishing the fact that the claimant would not have undergone the procedure had he/she received sufficient advice or warning is one of the hurdles the claimant has to overcome. Failure to establish the foregoing signifies that the claimant has failed to show that the breach of duty caused injury. A practitioner that breaches the duty to warn of an inherent material risk is only liable if the patient suffered harm due to the breach.

Australian courts use the “subjective” test of causation; “the question is whether the actual claimant would have proceeded if sufficiently advised as opposed to what a hypothetical “reasonable man” would have done. The court used the subjective test of causation in Rosenberg v Percival,[17] the plaintiff’s claim was unsuccessful since she failed to prove causation. For instance, people pursue cosmetic surgery in order to improve their looks; consequently, no sane person will proceed with a procedure that he knows will leave extreme scarring.



Defenses and damage

Lastly, the claimant must prove that the defendant’s breach caused him/her to suffer actual and measurable harm. A person who suffers side effects from the failure of cosmetic surgery within Australia can be protected under the legislation if all the elements can be successfully proved; however, whoever goes overseas to have cosmetic surgery and has a bad outcome will go through more complicated procedures to receive compensation from the overseas cosmetic surgery. Unfortunately, there is no direct regulation or legislation in place for overseas cosmetic surgery.

CLA contains the assessment of damages and defines damages in section 51[18] that general damages means damages for (a) pain and suffering; or (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement. Injury means personal injury here. No exemplary, punitive or aggravated damages can be awarded unless an unlawful act was committed with intent to cause personal injury. The plaintiff must take reasonable steps to mitigate the damages; otherwise the defendant can give the plaintiff written notice suggesting specified action. Namely, when the patients suffer from any damages or loss after cosmetic surgery, they have to strive to reduce the damages or loss before taking an action; for example, the patient should undergo medical treatment of a specified kind.[19]


Generally, people prefer to have cosmetic surgery during holiday; however, when it fails a person cannot simply go back to work, which causes loss of earning. According to section 54 in CLA, damage for loss of earnings can be awarded. When earnings cannot be precisely calculated, the court references a weekly loss for the patient and also considers the person's age, work history, actual loss of earning, any permanent impairment, and other relevant matters.[20]  In Appleton v Norris,[21] the respondent had to pay $191,943.55 for non-economy loss, past treatment expenses, future treatment expenses, future domestic assistance, past economy loss, past superannuation, and future economy loss. A proceeding in a court based on a claim for personal injury damages must be decided by the court sitting without a jury.[22]


The Australian legislation covers the element of remoteness of damages and the court must consider:

  1. Common law position on remoteness
  2. Policy considerations


Common law position on remoteness of damage

  1. Minimum damage required: patients must prove actual loss or harm after cosmetic surgery.


  1. Reasonable foreseeability of damage
  • A duty of care owed to the plaintiff must be reasonably foreseeable that the same kind of risk of injury.


Egg-Shell Skull Rule

  • The defendant must take the plaintiff as found : Smith v Leech Brain[25]
  • When the plaintiff is injured by the defendant's negligence, the defendant cannot insist that the patient would not have suffered such damage if he had not had an unusually thin skill or weak heart: Dulieu v White & Sons[26]
  • The defendant must take the plaintiff with all his weaknesses, beliefs, and reactions as well as his capacities and attributes: physical, social, and economic: Nader v Urban Transport Authority[27]
  • If the plaintiff suffers more than most people would have, the defendant will still be liable for the extent of harm.



Tort Reform in Cosmetic Surgery in Queensland

What is Tort Reform?

There was a wave of tort reform that washed across Australia whilst making some changes to the elements of torts.[28]  The authors of the Trowbridge Report support the definition of tort reform as:

Tort reform is … a means of curbing escalation of the underlying cost of claims, thereby increasing the predictability of claims outcomes. Analysis has shown that the cost of public liability claims has been rising for a number of years at a growth rate above the level of inflation.[29]

Tort reform focuses in on tort cases, in particular malpractice, product liability, and personal injury cases. For that reason, proposals to change the system are called 'tort reform'.[30] There are three categories of potential medical malpractice claims that will continue to exist:

  1. Frivolous claims
  2. Claims of egregious negligence
  3. Reasonable distributed claims


Past tort reform has rested on the assumption that frivolous claims pose the greatest problem.[31]  Haeck, Phil, the author of “Liability and Malpractice,” said that among malpractice liability insurance carriers, the reputation of the specialty is known for its "high frequency but low severity" risk.  Frequency means, in his view, the steady number of patients who are not satisfied with their results due to surgical scars. These complaints becomes lawsuits, and the surgeons win the vast majority that go on to trial.[32]

The law of negligence was reviewed by the federal government in 2002; an expert panel examined it in response to the collapse of a leading liability insurer and general concerns about the cost and availability of public liability insurance. The majority of the panel agreed to the restatement of the existing principles in statutory form, with a view to correcting alleged misunderstandings of the law, promoting greater clarity and certainty, and giving the courts more guidance as to the application of rules and principles that are open to various interpretations.[33]

The 'tort reform' inevitably referred to restrictions on the scope of liability in tort, and many of the tort reforms had actually increased the cost of compensation, or at least affected a significant transfer of the cost from the public to the private sector.[34]


Why do We Rethink Tort Reform in Cosmetic Surgery?

There is a lack of specialist surgical expertise; a great number of cosmetic surgery practitioners have no specialized training in Australia, except in Queensland.[35] From 1 July 2010, the Queensland medical board maintained a register of specialists and forbade doctors who did not have Royal Australasian College of Surgeons qualifications from calling themselves cosmetic surgeons [36] The media is full of harrowing stories of cosmetic surgery gone wrong, both overseas and in Australia; for instance, Amy Rickhuss suffered a cardiac arrest whilst undergoing breast implant surgery in Parramatta.[37]  Freckelton argues that little accurate information is provided by some practitioners, which causes many unsatisfactory outcomes within the cosmetic surgery industry to occur.[38] This matter was briefly mentioned on the Status of Liability; as a result of a lack of specialist surgical expertise, medical tourism has become popular, and a great number of Australians prefer going overseas for cosmetic surgery procedures, in particular to Thailand due to the procedures being available at a cheaper cost than in Australia.[39]  Recently, 29 year old Evita Sarmonikas, who lived in Gold Coast, travelled to the medical tourism hub of Mexicali for a Brazilian butt lift and died during the procedure.[40]


Unfortunately, there are many cases of overseas cosmetic surgery going wrong, and there are no internationally accepted legal frameworks to cover medical tourism in Queensland. Currently, there are no safeguards and regulations for domestic patients in place for overseas cosmetic procedures. In the event of negligent cosmetic surgery procedures, patients have to traverse the legal systems and medical complaint mechanisms in the countries they had the procedures. Some of those countries have limited or no legal redress for foreigners.

The Australian government does not take any actions against these activities, such as alarming people or regulating the rules, which is not an only issue in cosmetic surgery but also in other medical areas, especially in dental surgery. It is believed that these factors can be a significant reason for the current economic recession in Australia. People earn money in Australia but expend money outside Australia, and the economic cycle is broken by such activities. Therefore, overseas cosmetic surgery must be considered as a part of tort reform to boost the Australian economy.

There are other reasons to rethink tort reform in cosmetic surgery in Queensland, and this matter was further discussed in the tort reform section.



Fault-Based Compensation Scheme for Cosmetic Injuries in Queensland

Australia does not have a comprehensive, national, No-Fault compensation scheme, which restrains the right to litigate a common law, and is only allowed in a number of areas, including motor vehicle accidents, work place accidents, and criminal acts of violence.[41]

Unfortunately, Queensland does not operate a No-Fault Compensation Scheme for medical injuries. [42]  The injured person must prove negligence of the doctor in court. When a person cannot identify all the elements of negligence, he or she is not able to be compensated for his or her loss and suffering; this is the weakness of the existing system.  The other disadvantages of a Fault based compensation scheme are:

  1. Claims are settled slowly
  2. Negligence reporting rate will be reduced
  3. Increase unnecessary fees used in the judicial and administrative process


However, there are many advantages of a Fault based compensation scheme:[43]

  1. Reduce the number of claims
  2. Has flexibility to deal with different cases
  3. Easier to avoid entitlement issues
  4. Can adopt to societal changes


In cosmetic surgery in Queensland, an injured patient from the negligence of a cosmetic surgeon must prove duty of care, causation, breach of duty, and damages to be compensated for his or her loss and suffering.


[1] Arthur W. Perry,  Straight Talk about Cosmetic Surgery (Yale University Press, 2007) Preface 7.


[3] Mackenzie Ravn, Second autopsy reveals Evita’s lung punctured during buttocks surgery in Mexico (09 June 2015) Gold Coast Bulletin <>.

[4] New South Wales Caselaw, Appleton v Norris [2014] NSWCA 311 <>.

[5] Explanatory Notes , Health Legislation (Restriction on Use of Cosmetic Surgery for Children and Another Measure) Amendment Bill 2008 (Qld) 1 <>.

[6] William R. Buckley and Cathy J. Okrent, Torts and Personal Injury Law,  (Cengage Learning, 2004) 19.

[7] (1992) 175 CLR 479.

[8]  William R. Buckley and Cathy J. Okrent, Torts and Personal Injury Law,  (Cengage Learning, 2004) 20-25.


[10] Louise Cauchi, Cosmetics surgery and the law of negligence: An infectious passion for beauty? - Australian story <>.

[11] Clivi Liability Act 2003 (Qld) s 21.

[12] Why is Informed Consent so important for Cosmetic Procedures?  (06 November 2012), Costhetics, <>.

[13] [1957] 1 WLR 582.

[14] (1992) 175CLR 479.

[15] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

[16] It requires proof of more than “factual causation” to establish liability (that the defendant’s negligence, as a matter of fact, caused the patient’s injury or loss”). The legislation also requires that the defendant should be held responsible in those circumstances (that the defendant was within the appropriate scope of liability that should be imposed).” In Wallace v Kam [2013] HCA 19, the court required proof of more than factual causation to establish liability. The court held that the scope of liability was the critical question in the case, “would the defendant’s liability extend to the injury sustained in those circumstances?” the answer was no.

[17] [2001] HCA 18.

[18]  Clivi Liability Act 2003 (Qld) ch 3 pt 1 s 51.

[19]  Ibid ch 3 pt 3 s 53 (2) (a).

[20]  Ibid ch 3 pt 3 s 55 (1) (2).

[21]  New South Wales Caselaw, Appleton v Norris [2014] NSWCA 311 <>.

[22]  Clivi Liability Act 2003 (Qld) s 73.

[23] Andrea Fenton, Cosmetic Surgery: Your Survival Guide to Cosmetic Surgery Procedures, Cosmetic Dental Surgery, Cosmetic Surgery and Teenagers, Surgery and Weight Loss, Cost of Cosmetic Surgery, Cosmetic Surgery Recovery and More  (Tru Divine Publishing, 2013).

[24]  APQ v Commonwealth Serum Laboratories [1999] 3 VR 633.

[25]  Smith v Leech Brain [1962] 2 QB 405.

[26]  Dulieu v White & Sons [1901] 2 KB 669.

[27]  Nader v Urban Transport Authority (1985) 2 NSWLR 501.

[28] James Goudkamp, Tort Law Defences (Bloomsbury Publishing, 2013) 195.

[29] Peter Cane, Reforming Tort Law in Australia: A Personal Perspective Melbourne Law School <>.

[30] Paul Ruschmannand and Alan Marzilli, Tort Reform (Infobase Publishing, 2005) 11.

[31] Frank Mcclellan, Medical Malpractice: Law, Tactics, and Ethics: Law, Tactics, and Ethics (Temple University Press, 1994) 78.

[32] Phil Haeck and Mark Gorney, Risk, Liability and Malpractice: What Every Plastic Surgeon Needs To Know (Elsevier Health Sciences, 2011) 29.

[33] Mark Lunney and  Ken Oliphant , Tort Law: Text and Materials (OUP Oxford, 2013) 40.

[34] Ibid 41.

[35]Finally a Facelift on Regulation of Cosmetic Surgery?, CATHERINE HENRY PARTNERS Health & Relationship Law <>.

[36] Ibid.

[37] Sophie Scott and Rebecca Armitage , Woman suffers cardiac arrest during breast augmentation surgery at The Cosmetic Institute clinic (2 September 2015) ABC  <>.

[38] Freckelton I, Cosmetic Surgery and Law Reform(2002) 7(3) Journal of Law and Medicine 238.

[39]  Meredith Jones and Cressida J Heyes , Cosmetic Surgery: A Feminist Primer (Ashgate Publishing, 2012) 69.

[40] David Lewis, Evita Sarmonikas: Family of woman who died during Mexican cosmetic procedure calls for tougher regulations  (22 April 2015) ABC <>.

[41] Martin Davies and Ian Malkin, Focus Torts (LexisNexis , 7th ed, 2015) 6.

[42]Productivity Commission 2011, Disability Care and Support, Report no. 54, Canberra. <>.

[43] Kirsten Armstrong and Daniel Tess, ‘Fault versus No Fault - Reviewing the International Evidence’ (16th General Insurance Seminar, Australia, 9-12 November 2008) 4 <,Armstrong_Fault%20versus%20No%20Fault%20-%20reviewing%20the%20international%20evidence.pdf>.

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