Beauty and cosmetic treatments are becoming ever more accessible and affordable to the public, and the frequency of claims arising out of negligent beauty and cosmetic treatments is on the increase. Injuries sustained when things go wrong can be painful, distressing and uncomfortably intimate, and can have a severe psychological effect on a claimant in addition to the painful physical injury.
Establishing liability can often be tricky. Claimants will often be faced with a lack of any specific regulation covering the treatment concerned (particularly the more "high street" type of treatments); salons will commonly rely on "training" as a defence; and there can be practical difficulties obtaining records or information.
When presented with a potential claim, whether acting for the claimant or defendant, a few common "mistakes" to look for are: failure to carry out pre-treatment patch tests; failure to follow manufacturer’s guidelines when operating equipment or mixing products; failing to properly maintain equipment or store products; failure to make adjustments after equipment has been serviced or new parts have been fitted; failing to obtain informed consent; failing to properly train staff; failing to properly advise on aftercare.
Obtaining a copy of the manufacturer’s manual and/or operating instructions, and the service/maintenance record of equipment is a must. Ask for copies of training manuals, records and proof of qualifications. The accident book – and even the appointment book – can also turn up hidden gems in terms of other accidents or complaints! Obtain a copy of the consent form, and any accompanying leaflets or brochures explaining the potential risks of the treatment; informed consent can be an issue in claims arising out of cosmetic treatments, with claimants often stating they were told no more than "it might be a bit red for a while but there’s nothing else to worry about..." It is vital to obtain a full account of the information provided – both verbally and in written form – and taking an early and detailed witness statement from the client is crucial.
I have recently settled claims for two claimants who were left with facial scarring as a result of burns from laser hair removal (albeit in different cases). In one instance the claimant had previously bought an inexpensive brand of makeup, but found she had to buy a more expensive brand in order to cover up her scarring, which she was very conscious of. Whilst the cost difference per month was relatively small, over a lifetime the claim was significant. The moral is that it is always important to consider what may at first blush seem to be relatively trivial special damages claims. Always consider whether a psych report is necessary, not just in terms of general damages, but also in order to substantiate special damages claims. This is even more so if a claimant is so distressed they have, for example, a lengthy loss of earnings claim because they have felt unable to leave the house as a result of their appearance.
With ever novel treatments continuing to appear on the market (fish pedicure anyone?), the one thing which does appear certain is that claims arising out of such treatments are going to continue. Whether regulations will start to catch up with these areas remains to be seen…