Nips and tucks abroad
4th Sep 2015
Medical tourism is big business. Meredith Jones, an Australian contributor to the University of Leeds 2014 study Sun, Sea, Sand, and Silicone: Mapping Cosmetic Surgery Tourism, found that 15,000 Australians travel abroad every year for cosmetic procedures, spending $300 million per year between them. That’s a lot of silicone, and a lot of potential clients – that is, if you know how to navigate cross-border litigation effectively.
For Australians, Thailand is the medical tourism destination of choice, followed by Malaysia.
The University of Leeds’ researchers found that 97% of patients interviewed were happy with their procedures and would refer their surgeon to a friend. However, when errors occur the consequences can be devastating, as we know from recent reported tragedies such as the death of Australian woman Eva Sarmonikas in Mexico in March 2015 (Gold Coast Bulletin).
When errors are made, medical tourists and their families also find legal redress difficult to access, with the University of Leeds’ report noting that ‘[i]t is currently very difficult to sue across national borders’. Whilst such cross border litigation is certainly very difficult, it is possible for Australians to take legal action following negligent cosmetic surgery abroad.
When instructed by a medical tourist, it is important to identify your defendant. Many medical tourists use medical tourism agents, whose services frequently include health screening, obtaining consent, recommending a procedure, advising on expected outcomes, and recommending and booking the surgeon. Other tourists may use the internet to research overseas cosmetic surgery clinics and surgeons, and book with them directly.
If a plaintiff is suing an overseas defendant, it is generally possible to commence litigation in the plaintiff’s home jurisdiction. In the case of NSW, Rule 11.2 of the Uniform Civil Procedure Rules 2005 (NSW) allows the plaintiff to commence proceedings in the Supreme Court of NSW and serve an originating process outside Australia in various circumstances referred to in Schedule 6. These circumstances relate to both claims in contract and tort and would assist a plaintiff to serve proceedings overseas following a negligent medical procedure abroad. For example, under Schedule 6(e), as long as a plaintiff has suffered loss in NSW, a claim can be brought in NSW for a tort occurring overseas.
An overseas defendant may seek to rely on an exclusive jurisdiction clause in the surgery contract, or the doctrine of forum non conveniens to strike out the proceedings from NSW. However in the case of the latter, the burden is on the defendant to show that the Australian jurisdiction that the plaintiff has commenced proceedings in is a ‘clearly inappropriate forum’. This is the test from Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 adopted by the High Court in Voth v Manildra Flourmills Pty Ltd (1990) 171 CLR 538. This ‘clearly inappropriate forum’ test is far harder for defendants to meet than the test in other common law countries such as England and Wales, where the test is that there is simply a ‘more appropriate forum’ to hear the claim. For recent examples of failed defendant forum non conveniens applications, see Hargood v OHTL  NSWSC 446, Wilson v Addu Investments Private Ltd  NSWSC 381, and Hall v Hillview Ltd  NSWSC 377.
Having established jurisdiction, a plaintiff is likely to have a claim in contract and tort, since unlike medical treatment in the public health system, the plaintiff is likely to have entered a contract for the surgery. It is a well-established principle of Australian law, following John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and Renault v Zhang  282 CLR 187, that for claims in tort the applicable substantive law is the lex loci delecti (the law of the place of the wrongdoing) and the applicable procedural law is the lex fori (the law of the forum). For claims brought in contract, the applicable substantive law is the proper law of the contract. The applicable procedural law is again the lex fori.
Claims in contract and tort may therefore be subject to the substantive laws of different countries, and thus produce different results for your client. It is therefore best practice to plead all potential causes of action in your Statement of Claim, to achieve the best outcome for your client.
Victoria Gallanders is a passionate plaintiff personal injury lawyer and specialises in assisting people who have had accidents overseas in the Travel Law department at Stacks Goudkamp. Victoria is originally from the UK where she studied English and French Law and joined the International Travel Litigation Group of the award winning UK law firm Irwin Mitchell in 2010. After re-qualifing as a solicitor in NSW in 2013, she joined Stacks Goudkamp as an Associate in November 2014, where she is once again specialising in her area of expertise. Victoria uses her conflicts of laws knowledge to act for Australians who have been injured overseas, as well as foreign tourists and workers who have had accidents whilst visiting Australia.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).