In Worrall v Antoniadou  EWCA Civ 1219 Jeremy acted for the defendant plastic surgeon in successfully appealing against a finding of negligence made against her at first instance.
The claimant alleged that the defendant had told her that a satisfactory result from breast augmentation would be achieved and she would not require an uplift operation for 5-10 years. It was common ground that to have given such a time estimate would have been negligent and the defendant denied having done so: she said that she had given a non-committal answer because nobody could know for how long the effect would last. The trial judge found that she had not given the assurance; but he found that the claimant had suggested that time as a possibility and had left the consultation (which he described as “rushed”) having gained that impression. Hence he found that the defendant had negligently failed to dispel an impression which she had not given and which she neither knew nor ought to have known that the claimant had gained. The Court of Appeal reversed his decision, which was “certainly not fair”. In the Court of Appeal, the claimant argued that Montgomery v Lanarkshire Health Board imposed a duty on the defendant to give clear advice as to timescale for re-operation; but the expert evidence was that that was impossible to predict with any degree of accuracy. The defendant was therefore under no duty to give information which she could not give.
The claimant was ordered to repay the damages, which had been paid shortly after the hearing at first instance, with interest at the Law Society Contract rate (4% over base).
Winckworth Sherwood in conversation with Kings Chambers
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