Medical treatment contracts generally do not require a successful outcome, but only professional treatment. Cosmetic treatments can also rarely be clearly assigned to one type of contract and usually consist of elements of the contract for work and services and the treatment contract. In which cases and on what basis can the “patient” reclaim the fee paid?

The Supreme Court had to deal with this in its decision of December 19, 2012. The plaintiff agreed a “treatment package” of six treatments with the defendant to depilate his shoulders, neck, upper arms, back and buttocks. The treatment contract included information on residual risks such as reddening of the skin and pigmentation disorders. The plaintiff was not informed of the risk of burns. During the fourth treatment session, burns occurred in the shoulder and upper arm area due to a treatment error on the part of the beautician, where pigmentation disorders the size of a coin remained. In addition, the plaintiff was also unable to get rid of his unwanted body hair. The four (out of six) treatments were not successful in terms of permanent hair removal.

The Salzburg District Court awarded the plaintiff € 5,200.00. The cosmetician had owed a success, namely permanent depilation. In view of the damage suffered, it was unreasonable for the man to continue the treatment and the primary warranty remedies were therefore excluded. He was entitled to rescind the contract and could therefore reclaim the treatment costs already paid and was entitled to € 1,000.00 as global compensation for the inconvenience suffered .

The Salzburg Regional Court confirmed the award of pain and suffering damages, but set aside the first judgment to the extent of the award of € 4,200.00 for a new decision after completion of the proceedings (on the question of the justification of the discontinuation of treatment), since the application of warranty standards to the result of a cosmetic operation was generally to be rejected.

There was no need to supplement the proceedings as the matter was ready for decision by the Supreme Court and it ruled on the merits, namely restoring the judgment of the first instance. It justified this as follows:

The four treatments carried out did not result in any noticeable success; instead, the plaintiff suffered permanent pigmentation disorders in the area of the burns. In principle, no fee is due for worthless services.

Moreover, the plaintiff was never informed about the risk of burns, which subsequently materialized. He therefore never effectively consented to the previous interventions.

As a result of the established incorrect advice (lack of information) and incorrect treatment, in the opinion of the Supreme Court, no further findings were required regarding the reasonableness of discontinuing treatment. The Supreme Court therefore also awarded the plaintiff compensation for the treatment costs paid in addition to compensation for pain and suffering, albeit on the basis of damages law.