Clarke v Kalecinski & Ors [2022] EWHC 488 (QB)

Date

8th March 2022

Court

High Court

Key Issues

Breach of Duty, Sepsis, Cross-Border Claims

Judge

Mrs Justice Foster

UK residents travelling abroad for cosmetic surgery is big business and fertile ground for clinical negligence claims, which raise different questions than those typically encountered in domestic clinical negligence claims. The case of Clarke v Kaleciński is an interesting example of a case of this type.

The Facts

In 2014 the Claimant, Laura Clarke, was in her late 20s and “a very successful and outgoing nightclub dancer and stripper”. She decided to have a breast augmentation and uplift and thigh liposuction. In August 2014 she found a website advertising the services of Mr Kaleciński, a Polish surgeon, and his clinic, the Noa Clinic in Wrocław. She entered into a contract for the surgery for which the fee was £4,320. She met up with Mr Kaleciński in London in December 2014 to discuss it. She then flew to Poland in January 2015 and had the surgery at the clinic.

Unfortunately, it went very wrong. She soon developed symptoms of sepsis. She managed to make it back to England. Luckily, her mother, a former nurse, was waiting for her at the airport. She examined her daughter in an airport cloakroom. Realising what was going on, she then “drove like a maniac” to the hospital. The Claimant was admitted to ITU where severe sepsis was diagnosed. The evidence was that left untreated, the infection could have been fatal. As it was, she had to undergo multiple surgeries, including skin grafts and reconstructive breast surgery. She was left with permanent scarring and suffered psychiatric injury. She could not go back to her former work.

Claims

The Claimant brought proceedings in England, suing (in both contract and tort) Mr Kaleciński himself, the clinic, and the insurer of the clinic, PZU. She relied on expert evidence on breach of duty and causation from a UK-based cosmetic surgeon. His evidence was to the effect that the sepsis had been caused by surgery that had not been properly conducted, which had been carried out in facilities that were inadequate, and that the failure to manage the post-surgery complications “fell far below an acceptable standard”. The Claimant also relied upon the evidence of a Polish lawyer and a psychiatrist.

Issues

It was common ground that the English courts had jurisdiction and that English law applied to the contract claim and Polish law to the tort claim. The defendants each denied the claims against them. But, in the event, only PZU attended or was represented at the trial. No factual evidence was served by any the defendants and little disclosure provided. The factual and expert evidence called on behalf of the Claimant was not challenged.

PZU took 3 principal points at the trial:

• The Claimant’s contract had been with Mr Kaleciński and not its assured, the clinic. It was therefore not liable to indemnify.
• The Claimant could not, as a matter of principle, make out her case on breach in contract or tort in the absence of evidence specifically of local, Polish (as opposed to UK) standards of medical care. By analogy with cases arising in the context of package travel, including Wilson v Best, Evans v Kosmar, and Lougheed v On The Beach, if no evidence of a Polish standard was adduced the claim must fail.
• The Claimant could not rely on Polish law principles to support her claim in tort (this was necessary for there to be a direct claim against PZU as insurer). This was because the Particulars of Claim did not plead out specifically what principles and rules of Polish law were relied upon. Therefore, English law applied as a default.

Held:

The court found for the Claimant on all points:

• As to the identity of the contracting parties, on the material before it, the court found that the Claimant’s contract was with both Mr Kaleciński and the clinic. The Claimant had contracted for a package of care, to include the surgery and operative and post-operative care. This was to be provided by Mr Kaleciński and the clinic at one inclusive price. Further, Mr Kaleciński and the clinic had admitted they were both contracting parties as much in their defences, even if PZU did not accept this.
• As to evidence of local standards, in this case the standard was set by the terms of the contract. By virtue of representations made on the clinic and Mr Kaleciński’s website, the surgery was to be carried out to UK standards. Local standards did not therefore come into it. In any event, the evidence of the Claimant’s expert cosmetic surgeon was “couched in such stringent terms that they cover[ed] any surgical and indeed clinical practice whether governed by local Polish customs or not… [w]hat took place fell so far below acceptable standards [the court could not] accept the contention that local standards or practices might have rendered the egregious failings in this case acceptable as a matter of contractual or tortious obligation.”
• As to the pleading point, the court dealt with this pragmatically. It was correct that the Particulars of Claim did not expressly plead that Polish law applied or what Polish law was. But it was implicit that Polish law applied to the whole of the tortious claim. The parties had proceeded on the basis that Polish law applied. The Claimant was permitted to amend her pleading at trial to make reference to Polish law. In the court’s judgment, “neither side was… prejudiced by this late flurry of activity in articulating the issues.”

Our Comment:

Daniel Clarke, a barrister in our Clinical Negligence team commented on the case as follows:

The case is of interest to both clinical negligence practitioners and anyone interested in cross-border personal injury claims. In particular, it is interesting to note:

• The approach taken to the medical standards to be applied. On the facts of this case, the court found that the defendants had effectively bound themselves to a UK standard and that the breaches were so egregious that it could be inferred that Polish standards were breached even in the absence of specific evidence to that effect. But this will not be so in all cases. Legal standards and medical practice can vary between jurisdictions. In some cases, a claimant may feel confident enough to litigate breach to trial on the basis of expert medical evidence from a UK expert. But in cases where the breaches are more contestable, expert evidence from a local practitioner is likely to be a requirement and an argument along the lines made by PZU here will have force.
• The court’s pragmatic approach to the issuing of pleading and proving foreign law. On the facts of this case, the fact that the Claimant had not pleaded the specific provisions of Polis law relied upon in the tort claim could be dealt with by amendment at trial without prejudice to the parties. However, this will not always be the case. As a general rule, if a party wishes to rely on a principle of foreign law materially different to English law, they should plead and prove it. It should not be assumed that the law overseas with regard to breach of duty, causation or quantum are likely to materially the same as English law. For example, in many EU jurisdictions, claimants benefit from presumptions of fault and more favourable causation rules.

Finally, this was a case brought under the pre-Brexit jurisdiction regime. There was no argument about jurisdiction here. The clinician and the clinic could be sued in the place of the Claimant’s domicile under the consumer contract provisions of Brussels Recast (as they had directed their services to the UK). So too PZU by virtue of Brussels Recast insurance contract provisions. Post-Brexit, the position as regards the clinician and the clinic is probably the same as the UK has effectively re-enacted the consumer contract provisions of Brussel Recast into domestic law. But the insurance contract provisions have not been retained. In a case such as this, the insurer could probably still be joined as a party. But in a free-standing claim against an insurer, there is no longer jurisdiction in the UK courts as of right. The claimant must show that England is the appropriate forum for the claim. This is at the court’s discretion and often hotly contested.

Read the Judgment

Read the full judgment here.