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Singapore – Medical: Webster & Ors V Mark Liddington & Ors [2014] EWCA Civ 560.

7 August, 2014

 

Legal News & Analysis – Asia Pacific – Singapore – Dispute Resolution

 

Where clinics provided a cosmetic treatment where cells cultivated from the patient’s own tissues were injected into the patient, and where it turned out that substance injected was not free of foreign substances as advertised, held that the clinics were liable to the patients for the misstatement notwithstanding that the substance injected and the information provided came from a third party:
— Webster & Ors v Mark Liddington & Ors [2014] EWCA Civ 560 (England, Court of Appeal, 7 May 2014)

 
Facts


The plaintiffs were patients who had used a cosmetic treatment known as Isolagen. This treatment involved injecting fibroblasts—a type of cell which helps to maintain the connective strength of tissues—into the patients. The fibroblasts were cultivated using the patient’s own cells and the treatment was marketed as using only cells from the patient.

 

Accordingly, the marketing brochures all used language to suggest that no foreign material was involved. Examples of the wording contained in the brochures are as follows:

 

  • “utilise only your own living cells”;
  • “a solution using only your own cells”
  • “The patient’s immune system recognises the injection of cells as the patient’s own and does not reabsorb them or reject them as it does with other foreign materials such as Botox, collagen or hyaluronic acid”; and
  • “Unlike other collagen development companies Isolagen uses only the patient’s unique live cells to produce the patient’s own collagen.”

 
In fact, the substance injected into the patients would contain trace amounts of bovine material. This was because, in producing the fibroblasts, cells obtained from the patient’s skin would be cultivated in a solution of bovine proteins known as “foetal calf serum”. While the process would involve washing away the foetal calf serum, it was impossible to remove all traces of it altogether.

 
When the plaintiffs found out that it was not true that the substance that they had been injected with contained only their own cells, they sued the clinics that had provided them the treatment. However, the clinics were only involved in administering the treatment. The fibroblast solution made from the patient’s own cells was made by another company. The information in the brochures that the patients read, in particular, the information that the treatment was free of foreign substances, also came from that company. This was because the brochures that had been read had been either produced by that company or produced by the clinics based on information provided to the clinics by the company.

 
The issue for the court was therefore whether the clinics could be held responsible for brochures and/or information that came from a third party.

 
Decision

 
The English Court of Appeal held that the clinics were responsible to the plaintiffs for the inaccurate statements, notwithstanding that they originated from a third party. The Court started by noting that when a person (X) passes information produced by another (Y) to someone with whom X is hoping to contract (Z), a range of possibilities exist. In particular:

 

  • Scenario 1: X may warrant to Z that the information is correct. X may thereby assume contractual liability to Z for the accuracy of the information. That liability may exist under the main contract or a collateral contract.
  • Scenario 2: X may adopt the information as his own, thereby taking on such responsibility as he would have if he were the maker of the statement.
  • Scenario 3: X may represent that he believes, on reasonable grounds, the information supplied by Y to be correct. That involves a lesser degree of responsibility than the second scenario.
  • Scenario 4: X may simply pass on the information to Z as material coming from Y, about which X has no knowledge or belief. X then has no responsibility for the accuracy of the information beyond the ordinary duties of honesty and good faith.

 
The test for determining which scenario applies is an objective one: The extent of X’s responsibility for Y’s information is that which a reasonable person in Z’s position would understand from X’s words or infer from X’s conduct and all the circumstances.

 
The Court held that this case was one where Scenario 2 applied. It noted that the following features were important:

 

  • The plaintiffs were consumers and the defendants were qualified clinicians.
  • The defendants were offering to sell both a product and service to the plaintiffs. The relationship was both clinician and patient, as well as vendor and purchaser. None of the plaintiffs was ill or in need of Isolagen treatment for medical or therapeutic purposes.
  • There was a stark imbalance of knowledge between the parties.
  • The defendants did not stipulate any disclaimer or express any reservations about the accuracy of the information which they were handing over.

 
Our Comments / Analysis

 
The decision shows that the courts are more willing to impose responsibility for misrepresentations based on third party information in a case where the relationship is more than that of simply vendor-purchaser. In the present case, there was also a clinician-patient relationship which carries an element of trust and reliance, especially in the imbalance of medical knowledge. Such a responsibility might also arise in other relationships involving professional duties. However, the analysis set down by the Court shows that the features in each case must be thoroughly investigated to determine what is the extent of responsibility.

 
Notwithstanding the clinician-patient relationship, the Court noted that the clinician could have issued a disclaimer, such as, for example, “This is what the manufacturer says. They are a reputable company. Although I have no direct knowledge of these matters and cannot confirm the details, I believe that the brochure is accurate.” In the view of the Court, such a disclaimer would have brought the case within Scenario 3, where the clinician would only need to demonstrate that he believed, on reasonable grounds, that the information supplied by the third party was correct. This is something that medical professionals might consider doing in order to limit their liability in similar cases.

 

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For further information, please contact:

 

Melanie Ho, Partner, WongPartnership
melanie.ho@wongpartnership.com

 

Chee Meng Tan, WongPartnership

cheemeng.tan@wongpartnership.com

 

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