Generally speaking, an injury such as scarring on the face may be compensated in a claim. Your damages can include pain and suffering and costs for plastic surgery or similar treatment to remove the scar, or limit its appearance. If your appearance is a significant aspect of your employment (such as if you’re a model, actor, etc.), then you may also be entitled to compensation for lost wages and salary. Furthermore, general damages such as pain and suffering may also be a potential head of damage if the scarring has seriously affected you psychologically. Understandably, a person’s appearance can be a significant self-representation and anything adversely affecting someone’s self-image can potentially lead to conditions such as depression from facial scars in an accident.
Hence, any psychological injury sustained as a result of scarring may be compensable.
In order to be successful in your claim, you will have to prove that the person responsible for your scarring was negligent in causing the accident. There are a number of factors that can present a potential issue here, especially if the cause of the scarring was due to medical treatment.
In the case of Machado v Advanced Dermatology Group Pty Ltd [2013] NSWDC 85, a 38 year old woman undertook cosmetic laser treatment on 1 July 2009 where she received facial burns, which had initially resulted in pain, redness, swelling, blistering, and then ultimately, scarring to her face. The judge noted that the claimant had “been left to suffer embarrassment and resultant psychological difficulties, including depression, and a feeling of social isolation.”
Unfortunately, she was unable to win her case because she did not have any evidence (expert evidence, documentation, etc.) to prove that the practitioners were negligent based on the standards of a reasonable practitioner in the same medical field and situation. More surprisingly, her claim also failed because she did not sue the proper party. Advanced Dermatology denied that it was the company that gave the treatment. Instead, the director’s brother said that he operated the machine and did so through a different corporate entity AD Pty Ltd, which was listed under the same address as Advanced Dermatology and was now de-registered as a company.
From this case there are 3 important lessons that need to be drawn here:
1) Determination of negligence – Depending on the circumstances, the challenge to prove negligence can be difficult. For example, it may be a lot easier to prove negligence on the part of a regular cashier, compared to a surgeon where medical negligence is an extremely difficult area to prove and requires the experience of an accredited specialist in personal injury. The law is not often black and white as some people are led to believe. It is critical to seek advice from a specialist who is knowledgeable in the law and can apply it to suit the unique circumstances of your case.
2) You need to prove your claim – The onus is on the plaintiff to prove their claim on a balance of probabilities. You need to prove your loss with objective evidence and also prove that it resulted from another’s negligence. To apply the Machado case, a claim for depression will almost always require a medical report from a psychiatrist, psychologist or another mental health practitioner to substantiate your injuries and its relationship to the negligence of the defendant.
3) You need to sue the right party – When it comes to companies, it is critically important that a client understands the importance of suing the correct entity. Pursuing a suit against the wrong company can result in adverse effects to your claim such as in the Machado case. This can also apply in many other accidents such as when you are the victim of a car accident and cannot find the negligent party. It is important to seek the advice of an accredited specialist in personal injury who can clarify your legal rights and protect your interests.
In conclusion, while an accident resulting in facial scarring may result in a successful compensation claim, it is not a topic that is meant to be treated as a black and white issue. There are many factors that come into play that can affect a victim’s success in court. A personal injury law firm will offer a free consultation to help you make a decision before starting a personal injury claim. An accredited specialist in personal injury can help you with your claim by lodging the initial documentation, acquire the evidence needed to support your claim and represent you in negotiations for settlement or trial if necessary.
If this situation seems to be similar to your own accident and you would like more information on your personal injury rights and how East Coast Injury Lawyers can assist you, please do not hesitate to fill out our contact form or give us a call at 1300 720 544.
