If you are a salon owner, tattoo artist or aesthetic practitioner that has been presented with a formal injury claim it can be a worrying time. Even the most reputable and experienced practitioners can still be subject to a compensation claim if a customer feels that you are responsible for them being injured after a treatment or procedure.
Fortunately, this is what your business insurance is for, and your policy should provide legal representation to respond and deal with the claim. However, insurance for businesses that perform cosmetic procedures is far from straightforward, with many standard public liability insurance policies excluding on-body treatments.
So, if you now find yourself having to consider and deal with a cosmetic injury claim, it can be helpful to know about some of the common defences that may be raised.
Contributory negligence is a legal argument that states that a person who is injured has themself also contributed to the damage that was inflicted or at the least to the severity of the injuries. So, if the injured claimant did not take reasonable care for their own safety, they may not seek full damages from the defendant.
For example, if a client undergoes a non-surgical cosmetic procedure and alleges that they are injured as a result of the aesthetic practitioner's negligence. But the customer also failed to follow the provided aftercare instructions which would mitigate the risk of any adverse reaction. The practitioner may be able to argue that the customer was contributory negligent for the injury that was ultimately sustained.
If successfully proven, contributory negligence can result in a percentage decrease on any compensation that is awarded.
Assumption of Risk.
Assumption of risk is another legal defence that basically asserts that a person who voluntarily takes a risk may not be able to recover damages if they are injured as a result of taking that risk.
For example, if a customer is advised that a procedure carries an increased risk, such as a piercing or tattoo in an unusual area and is subsequently injured. A defendant may be able to argue that the claimant knew, assumed, and voluntarily took the risk that the potential injury may occur.
This defence is known as 'Volenti non fit injuria' which is Latin and translates as 'to a willing person, injury is not done'.
Lack of Duty.
Lack of duty can be raised if a person does not owe a duty of care to another person, so essentially there is no legal responsibility between the two parties. If a defendant does not have a professional relationship with the claimant, they may not owe them a duty of care and therefore may not be liable for any injuries that the claimant suffers.
For example, if a client is injured during an eyebrow tinting procedure and brings a claim against the salon owner. If the salon owner simply rents out space to the beauty therapist that performed the procedure, they may not be considered to have a professional relationship with the injured person and be able to argue that they did not owe a duty of care to them.
While any building owner must still ensure the safety of visitors to their premises (under The Occupiers Liability Act), if this defence is successful the claimant may choose to redirect their claim to a party that owed them a duty of care for the procedure. Such as the self-employed practitioner that they contracted with and actually performed the procedure or treatment.
Legal Advice on Defendant Cosmetic Injury Claims.
If you are a business owner or practitioner that has received a Claim Notification Form or Letter of Claim from a law firm, you should seek your own independent representation as soon as possible. You should also retain all documentary evidence relating to the incident such as patch test results, consent form, pre-appointment questionnaire and details of any products or equipment that were used in the procedure.
Addressing allegations of negligence and establishing fault (liability) are not straightforward matters and specialist legal advice should be obtained before responding.
A solicitor that specialises in defending cosmetic injury claims will be able to consider the specific circumstances around the alleged incident and advise you appropriately on the potential defences and your liability position.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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