You visit a beautician for laser treatment. After a session, you notice burns on your skin in the place targeted by the aesthetic treatments.
Are you entitled to compensation? What happens when there is a disclaimer in the contract you signed?
Mr. Lambert explains the law in this regard using examples from real cases tried by the courts.
Civil liability
If you are a regular reader of our legal capsules, you surely know the three elements that must be established to be entitled to a civil liability claim: fault, damage and causation. You can refresh your memory by clicking here.
The membership contract
When you receive cosmetic care, you must sign a membership contract, that is, a contract whose clauses are imposed on you and which cannot be negotiated.
This does not mean that you can include anything in the contract. Indeed, the following are prohibited:
- clauses that refer to a document to which you do not have access;
- clauses that are incomprehensible (to a reasonable person);
- illegible characters;
- and unfair terms (according to the discretion of the judge).
What is very important in terms of care is obtaining the free and informed consent of the party undergoing treatment.
Free and informed consent
For consent to be free, the person receiving the care must decide to do so without pressure or threats from third parties (doctor, friends, family, etc.).
For consent to be informed, information on all side effects associated with treatment must be provided. Indeed, we will see in the following example that it is not enough for the treatment to be applied correctly for the court to determine that there was no fault.
Ms. Raymond goes to Ms. Carpentier’s company to undergo laser treatment to remove a tattoo. Ms. Raymond experienced severe pain and burning during and after the treatment, which burned her skin to the point of producing water bells. Ms. Carpentier explained to the court that she applied the treatment in accordance with the procedure and that burns were a normal consequence of this type of care.
The Court ruled in favour of Ms. Raymond, since Ms. Carpentier should have explained to her client what the risks associated with laser treatment were and she did not. Here, the fault is established not because of improper application of the treatment, but because Ms. Carpentier did not obtain Ms. Raymond’s informed consent.
Limitations on Liability
Acceptance of risk
Most likely, you will have to sign a release, which often consists of a document with the word “consent” in the title. However, this release will not always limit the liability of the person providing care.
In a case analyzed by the Court of Quebec, Ms. Fortin – who suffered first and second degree burns – signed a document detailing the risks associated with laser hair removal. However, the document did not refer to burns as severe as those suffered by the applicant.
Moreover, the Court held that Ms. Fortin’s acceptance of the risks did not necessarily prevent her from bringing an action against the defendant. Indeed, deficient information can engage contractual liability.
Being the author of one’s own misfortune
If you have not followed the instructions and recommendations given to you by the person treating you, you may be held liable – in part or in whole – for the harm suffered.
This is the case, for example, of a person who, after being advised to avoid the sun in the weeks following the treatment, will sunbathe without sunscreen.
Obtaining compensation
Before doing anything, it is highly recommended that you try to settle the issue amicably before initiating legal proceedings. Thus, you will save time and money, and avoid trouble. However, if a simple conversation or exchange of messages is not enough, you can also try to send a formal notice by registered mail or bailiff.
If this does not work, you can choose to have your case heard by the small claims of the Court of Québec since the amount claimed will probably be less than $15,000 (the maximum accepted by this division of the Court).
In order to maximize your chances of success, it is important to keep any evidence demonstrating the harm you have suffered:
- photos;
- drug bills;
- medical documents and reports;
- contract of the treatment received;
- Etc.
As you can see from the examples cited in this article, each case is different. The facts and circumstances of yours can have a great impact on the Court’s decision.
Did you like this article and want to read others like him? Follow our Facebook page so you don’t miss our weekly capsules on various legal topics!