Thursday 19 April 2018

Woman cannot sue over Polish breast reduction surgery

A DONEGAL woman is not entitled to sue here over breast reduction surgery in Poland which she claims left her deformed and scarred, the High Court ruled.

Mr Justice Nicholas Kearns yesterday struck out Mary Rose Harkin's action which was brought against Polish based consultant plastic surgeon Edward Towpik; a Warsaw based cosmetic clinic, Klinika Latros, and its alleged UK based agent, Denise Bird.

Ms Harkin (32), a special needs assistant, from Cranford, Letterkenny, claims she underwent unsuccessful breast reduction surgery performed by Dr Towpik at Klinika Latros on July 15,2009, and was left with injuries including deformities and unattractive scarring. She alleges the surgery has left her feeling constantly embarrassed.

She claimed Prof Towpik and the clinic failed to exercise any or any reasonable care in carrying out the surgery and caused her to suffer disfigurement to her breasts.

She claimed Ms Bird, with an address at Cumbria, England, liaised with Ms Harkin in her alleged capacity as agent and consultant for the clinic and Prof Towpik. 

She underwent the surgery after finding out about the clinic, and contacting it's representative, on the Internet site

The claims were denied.

In a preliminary application, the defendants applied for a strike out of the case arguing,  the Irish courts lack jurisdiction to hear or determine the claim.   

They argued the medical procedure was carried out in Poland and did not involve Ireland in anyway. No service was sold and no contractual agreement for the provision of services concerning Ireland was entered into.

Ms Harkin’s lawyers argued the Irish High Court has jurisdiction to hear the action and she rejected claims the clinic only offered services to customers in Poland and the UK.  The website clearly offered services to customers in EU countries, it was argued.

In his ruling Mr Justice Kearns said it "was difficult to conclude" the proceedings could be brought "in this jurisdiction".

There was no evidence to indicate that the defendants directed their activities in any specific way to the Irish market, he said

Significantly, the Judge said, the surgery and the pre op procedures were all performed in Poland, and she had signed a consent form in Poland.

"All of these matters suggest that the defendants’ activities were not directed to consumers in Ireland,”, he said. 

The defendants website had a UK domain name, a UK contact telephone number and the currency dealt with was "not Euro but sterling".

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