Can Beauty Salons And Aesthetic Clinics Be Sued For Erroneous Treatment? – Professional Negligence

Despite the subjectivity of “beauty” and the fact that
everyone is unique in their own ways, it is undeniable that most
individuals may have desires to sustain a flawless and/or perfect
appearance and to rescuplt the imperfections they perceived on
their bodies including but not limited to performing nose surgery
(rhinoplasty), massive fat removal (liposuction),
lip and jawline augmentation as well as manicure and pedicure. The
aforementioned desires had become a catalyst for the rising number
of licensed and unlicensed beauty salons and aesthetic clinics in
Malaysia. It has also resulted in the recent emergence of a medical
modality known as aesthetic medical practice of which the goal is
about creating a harmonious physical and psychological balance
whereby this practice is on the rise globally and is also gaining
popularity nationwide.¹ Be that as it may, everything
comes with costs and risks that one may not be able to foresee
and/or anticipate.

Competency of Beauticians and Aesthetic Medical
Practitioners

According to Awg Armadajaya bin Awg Mahmud JC in the case of
Teng Ngit Yoong v Liew Nyok Fen²
(hereinafter referred to as ‘Teng Ngit
Yoong‘), a beauty salon or beauty parlor, or sometimes
beauty shop, is an establishment dealing with cosmetic treatments
for men and women. In Malaysia, there exists no body that regulates
the beauty salon per se. As such, there is no yardstick to measure
the standard expected of a “beauty therapist” or a
“beautician”. Unless there exists a yardstick to gauge
the standard expected of the beauty therapists or beauticians, the
Court is unable to scrutinize the standard that make members of
this occupation as professional.³ The judge had further
added that they are at best, people who offered their services for
a fee but cannot in anyway be regarded as professional.

It was further intimated by the judge that the medical
practitioners or pharmacists who venture into medical aesthetic on
the other hand are competent, not by virtue of the existence of a
regulatory body for these medical practitioners, but by their own
professional bodies which determine their qualifications as medical
doctors or pharmacists.⁴ According to the Aesthetic
Medical Practice Guidelines for General Practitioners 2013, it is a
prerequisite for a medical practitioner who intends to practise
aesthetic medical practice to, inter alia, be fully
registered with the Medical Council and hold a valid practicing
certificate under the Medical Act 1971.

As such, based on the above-mentioned legal perspective on the
nature of occupation of beauticians or beauty therapists and
aesthetic medical practitioners, it is apparent that there exists a
higher degree of obligation imposed on the aesthetic medical
practitioners as compared to the beauticians or beauty therapists
given the differences with regard to the knowledge, skills and
competency. Therefore, should there be any complications resulted
from any treatment given by the beauticians or beauty therapists,
one may initiate legal proceedings under the cause of action of
negligence. However, in the event the erroneous
treatment and/or advise is rendered by aesthetic medical
practitioners, one may have a cause of action for medical
negligence and/or alternatively, professional negligence
given their special skills which an ordinary person does not
possess.⁵

Legal Principles Governing Negligence Claim

Our tort of negligence followed closely the law of England and
Wales considering that there exists no statutory regulation
governing it in Malaysia. There are four requirements to be
fulfilled by the Plaintiff in order to succeed in a negligence
claim as set out in the case of Donoghue v
Stevenson⁶. Firstly, a duty of care
must be established whereby in a beauty industry context,
one must prove that the beauticians or beauty therapists owe him a
duty of care.

A duty of care is a legal obligation imposed on an individual
which requires adherence to a standard of reasonable care while
performing any acts that could foreseeably harm others.⁷
This is also known as “Neighbour Principle” according to
Lord Atkin in Donoghue v Stevenson whereby Lord Atkin had intimated
that one must take reasonable care to avoid acts or omissions which
one can reasonably foresee would be likely to injure one’s
neighbour.

It was further added that the neighbour can be interpreted as
the persons who are so closely and directly affected by one’s
act.⁸ Therefore, given the proximity of relation between
the beauticians or beauty therapists and their clients, it is
apparent that it would give rise to a fiduciary relationship by the
services rendered. Hence, the beauticians or beauty therapists
indeed owe duty of care towards their clients. In the event they
failed to protect the clients from any reasonably foreseeable
injury and/or harm, that would give rise to a fulfillment of
the second element of negligence i.e., the breach of duty
of care.

The third element to be established is the causation and
remoteness of damage whereby in consequence of the
beauticians or beauty therapists’ breach of duty of care, the
damage is sustained by the clients. In order to succeed in proving
this element, the clients must be able to convince the Court that
there exists a causal link between the failure of the beauticians
or beauty therapists to take reasonable steps in protecting the
clients from any reasonably foreseeable injuries and the injuries
suffered by the clients. In fact, this element can be seen as a
further significant control mechanism employed by the courts to
limit the number of success claimants.⁹

The last element to be established in a negligence claim
is the damage and/or injuries. For instance, in the case
of Teng Ngit Yoong, the Appellant is a beauty
therapist who rendered services to the Respondent to alleviate the
complaints of freckles and pimples whereby the Respondent followed
the advice and/or instructions of the Appellant
accordingly.¹⁰ As a consequence thereof, the Respondent
suffered from severe skin problem which was attributed to chemical
peeling. The Court held that notwithstanding that the Appellant is
not a professional, the Appellant nevertheless owes a duty of care
in every way that is required of matters affecting to human body to
the Respondent.¹¹ In the event there is a breach of duty
of care by the act and omission of the beauticians or beauty
therapists but there is no injury suffered by the client, the claim
shall fail considering that the fourth element is not
fulfilled.

Legal Principles Governing Medical Negligence Claim

In Malaysia, Bolam test as formulated in the case of
Bolam v Friern Hospital Management Committee
(hereinafter referred to as ‘Bolam‘) on
the standard of care was applicable in medical negligence until the
decision of the Federal Court in the case of Foo Fio Na v
Dr Soo Fook Mun & Anor¹² (hereinafter
referred to as ‘Foo Fio Na’). McNair J in
Bolam’s case pronounced that a medical practitioner is not
guilty of negligence if he has acted in accordance with a
practice accepted as proper by a responsible body of medical
opinion even though other doctors adopt a different
practice.¹³

However, the Federal Court in the case of Foo Fio Na adopted the
test sets out in the case of Rogers v Whitaker (1992) 175
CLR 479 and held that Bolam test has no relevance to the
duty and standard of care of a medical practitioner in providing
advice to a patient on the material risk of the proposed
treatment.¹⁴ This decision had further created two
inconsistent lines of decisions by our courts on the standard of
care in medical negligence.¹⁵

This anomalous situation was put to rest by the Federal Court in
Zulhasminar bt Hasan Basri & Anor v Dr Kuppu Velumani P
& Ors [2017] 5 MLJ 438 where it was held that the test
in Rogers v Whitaker is restricted to only the duty to
advise the risks associated with any proposed treatment
and does not extend to diagnosis or treatment. With regard to the
standard of care for diagnosis or treatment, the Bolam test still
applied.¹⁶

Based on the foregoing, in the event one suffered injuries after
undergoing any aesthetic treatment (be it surgical and
non-surgical) by a qualified aesthetic medical practitioner, the
claim for medical negligence may stand if and only if the aesthetic
medical practitioner fails to advise and/or disclose the potential
and/or material risks beforehand and/or the treatment was not made
in accordance to the practice accepted as proper by a responsible
body of medical opinion. There exists a fairly higher threshold for
the medical negligence claim considering the reputation,
credibility and higher skills possessed by the medical
practitioners.

Conclusion

The answer to the question as to whether the beauty salons and
aesthetic clinics can be sued for erroneous treatment is
affirmative, subject always to the fulfillment of the elements of
negligence and/or medical negligence. Despite one’s rights to
take action for negligence and/or medical negligence are protected
under the law, one should be cognizant of getting aesthetic
treatment from unlicensed practitioners and facilities including
but not limited to unlicensed spas and beauty salons. According to
the Medical Practice Division director, Dr Mohd Azman Yacob, the
aesthetic treatment can potentially cause health complications,
disabilities and even death if handled by unqualified
individuals.¹⁷ Last but not least, beauty should not be
painful.

Footnotes

1. Guidelines on Aesthetic Medical Practice for
Registered Medical Practitioners 2013

2. [2020] MLJU 862

3. Ibid

4. Ibid

5. Ali Mohammad Matta. MEDICAL NEGLIGENCE: New Issues and
their resolution [2000] 3 MLJ clxxxiv

6. [1932] UKHL 100, [1932] AC 562

7. Ibid

8. Ibid

9. Malaysia Construction Services.com. Negligence Tort
Law. Retrieved from
http://www.malaysiaconstructionservices.com/pepc-exam-general-paper/negligencetortlaw

10. [2020] MLJU 862

11. Ibid

12. [2007] 1 MLJ 593

13. [1957] 2 All ER 118

14. Dr Premitha Damodaran v GTK (a child suing through
her father and litigation representative, Taranjeet Singh a/l
Bhagwan Singh) & Anor and another appeal [2022] 3 MLJ
484

15. Ibid

16. Ibid

17. Dayak Daily (2022). MOH warns of deadly dangers of
unlicensed cosmetic procedures offered in spas, beauty salons.
Retrieved from
https://dayakdaily.com/moh-warns-of-deadly-dangers-of-unlicensed-cosmetic-procedures-offered-in-spas-beauty-salons/

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