Beauty Should Not Be Painful: The Duty of Care Owed by Beauty Salons

As the saying goes, beauty is pain, and millions of people around the world attest to this. From waxing to pedicures, the list of self-care services offered in most beauty salon today are endless. You expect to leave these establishments feeling better than when you arrived, hopefully rejuvenated and renewed. However, there may be circumstances where the experience turns out to be worse than expected, if not disastrous.

This article sets out the causes of action that may be taken in such circumstances and the remedies available to the complainant when liability is established.

1. What can the complainant do?

The complainant may sue the beauty salon under the general tort of negligence. The tort of negligence is defined as harms done by one party to another through the failure of the offending party to exercise a reasonable standard of care. In proving negligence, it must be shown that a duty of care was owed and that it was subsequently breached. Therefore it must be shown that the beautician has caused the client some form of harm as a result of the beauty services rendered.

2. Is there a duty of care owed by the beautician and/or the beauty salon?

It must first be established that a duty of care is owed before a party may be held liable for negligence. In the context of tort, a duty of care is a legal obligation imposed on an individual requiring him/her to act with a reasonable standard of care when performing an act/acts where harm is foreseeable.

Whilst it is established that a doctor owes a duty of care to his/her patient and a lawyer owes a duty of care to his/her client, it remains to be seen whether the Malaysian courts would regard a beautician and/or beauty salon to have a general duty of care towards their customers since there is a lack of development in case law in this area.

As the matter stands, the complainant has to prove that a duty of care was owed to him/her through the ‘neighbourhood principle’ (Donoghue v Stevenson [1932] UKHL 100) and that it must be ‘fair, just and reasonable’ to impose liability (Caparo Industries PLC v Dickman [1990] 2 AC 605).

In a recent case of Teng Ngit Yoong v Liew Nyok Fen [2020] MLJU 862 (“Teng Ngit Yoong”), the Court found that the beautician owed a duty of care to her customer.

3. What is the standard of care required of a beautician and/or beauty salon?

In the case Hedley Byrne v Heller [1964] AC 465, it was held that where the person who caused harm possessed specific expertise and skills, a higher duty of care would be imposed. This is to ensure that those holding themselves out as a person of requisite skills, expertise and/or experience are held to a higher standard of care when they render their services.

Following that line of reasoning, it would make sense to hold beauticians at a higher standard of care given that they do possess the required skills and expertise. However, this standard of care is not what one would hold of a doctor in cases of professional/medical negligence. Given the fact that most, if not all, beauticians are not accredited by the relevant health authorities, the court in Teng Ngit Yoong was unable to pinpoint to a body that regulates beauty salons and/or beauticians.

Nevertheless, the court in Teng Ngit Yoong acknowledged that beauticians have attained a certain level of proficiency in skin care and thus owed a higher standard of care to the customer in terms of the services provided. Thus, the standard of care required of a beautician and/or beauty salon is that expected of a reasonable practitioner in the same industry.

4. What should the complainant do if he/she finds himself/herself in such a situation?

The complainant is required to prove that the injury was caused by the beautician and/or beauty salon and that is there is no intervening event breaking the chain of causation. It is therefore advisable for the complainant to seek immediate medical attention for the injuries sustained, from a certified medical practitioner recognized by the Ministry of Health. The complainant should avoid attempting to remedy the injuries without medical advice.

In order for the complainant to succeed in his/her claim, it is important to preserve all evidence and documentation that may be relevant to the claim. This includes, but is not limited to photographs, receipts, medical report and/or any correspondences between the complainant and the beautician and/or beauty salon.

5. What would the complainant be entitled to upon succeeding in his/her claim?

The complainant will be entitled to damages for pain and suffering and loss of amenities, consequential losses such as expenses incurred as a result of the negligent treatment and loss of income. However, it is important to note that any claim must be brought within 3 years from the time the incident occurred.

Conclusion

The lack of development in case law in this area may suggest the lack of consumer awareness with regards to their rights in the event of mishaps in beauty procedures. If you or someone you know has personally been injured due to negligence at a beauty salon, seek legal advice before determining the next course of action. With the increase in the number of such claims, calls for stricter regulations within the beauty industry would be helpful in providing a safer environment for consumers.