The Court of Appeal recently upheld the High Court's decision on quantum and costs in Milmoe v Chatzis and Sheldon Investments Limited t/a River Medical Group [2025] IECA 149.
The second defendant appealed a High Court order granting judgment to the plaintiff for €44,460 and costs, but on the Circuit Court scale. The High Court refused the defendant's application to make a costs differential order under the Civil Liability Act 1961. The appeal related to both the assessment of damages by the High Court and the refusal to make a differential costs order.
Background:
The proceedings alleged negligence against the defendants, a consultant surgeon (first defendant) and the clinic from which the surgeon practised (second defendant and appellant), and arose from post-operative care following the plaintiff's breast uplift surgery. It was accepted that this surgery results in scarring, but the High Court had to consider the presence of additional scarring allegedly caused by a delay in treating with antibiotics a post-surgery infection suffered by the plaintiff. The High Court noted the difficulty in assessing damages in scarring cases. It went on to assess that 35% of the plaintiff's breast scarring was due to the post-surgical infection. Using Reilly v Moir [2009] IEHC 164 as a reference for full value breast scarring cases where €75,000 was awarded, the High Court adjusted the full value for general damages to €90,000 to allow for inflation. It awarded the plaintiff €31,500, being 35% of that figure. The plaintiff was awarded additional damages representing 50% of the surgery costs, as well as time and care spent in dealing with the prolonged infection.
Appeal on quantum:
The appellant relied on the absence of expert evidence to the effect that it was impossible to precisely state what contribution the infection made to the increased scarring. It argued that the lack of such evidence meant the High Court was not entitled to arrive at the figure of 35% of the full value scarring to the breasts.
The Court of Appeal identified no error on the part of the High Court in making the award of €44,460 to the plaintiff. It held that the High Court was entitled to rely on relevant case law where courts had determined the full value of general damages before applying a percentage to reflect the circumstances of the plaintiff's case.
Appeal on the costs differential order:
As the award of €44,460 fell below the jurisdiction of the High Court (€60,000), the appellant sought a costs differential order under section 17(5) of the 1961 Act. A costs differential order directs a plaintiff to pay defendants the additional costs incurred in defending the case in the High Court, rather than the Circuit Court.
The High Court refused to make a costs differential order because the defendants had not sent a costs differential warning letter to the plaintiff, and there was no interaction before the hearing about the appropriateness of the High Court's jurisdiction in the case. It was also persuaded in its decision by the complexity of the case, particularly the potential range in value for the scarring. The Court of Appeal refused to overturn this finding, as it was entirely within the High Court's discretion to decline to make a costs differential order.
Concluding remarks:
The pragmatic approach of the High Court, upheld on appeal, in determining fair compensation for scarring-related damages is of particular note, and in the absence of precise expert quantification. Also noteworthy is the courts' position on costs differential orders and the importance of pre-trial engagement on costs, should defendants later seek such orders..
Contributed by: Gail Nohilly
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