Court of Appeal dismisses appeal on personal injury damages and differential costs in Irish medical negligence case.

UNAPPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2025/15

High Court Record Number: 2017/9702P

Faherty J. Neutral Citation Number [2025] IECA 149

Meenan J. MacGrath J.

BETWEEN/

ROISIN MILMOE

PLAINTIFF/RESPONDENT

- AND –

LABROS CHATZIS AND SHELDON INVESTMENTS LIMITED T/A RIVER

MEDICAL GROUP

DEFENDANTS/APPELLANT

JUDGMENT of Mr. Justice Charles Meenan delivered on the 28th day of July 2025

Introduction: -

1. This is an appeal from the judgment and order of the High Court (Brett J.) in a personal injuries action granting the respondent judgment against both defendants in the sum of €44,460.00. On the issue of costs, the trial judge granted the respondent an order for costs on the Circuit Court scale with a certificate for senior counsel. The trial judge declined to make a costs differential order pursuant to s. 17 of the Courts Act, 1981 (as amended) (the “Courts Act”).

2. There are two issues for consideration in this appeal. Firstly, the quantum of damages awarded, in particular, the reasoning of the trial judge in arriving at a figure of €40,000 for general damages. Secondly, the refusal of the trial judge to make a differential costs order in circumstances where the amount of the award fell within the jurisdiction of the Circuit Court.

Background: -

3. In the High Court there were two defendants. The first defendant was the consultant surgeon who carried out the procedure and the second defendant was the clinic where the consultant practiced, being River Medical in Baggot Street Dublin (the “clinic”). The first defendant initially participated in the proceedings but, having failed to file a defence, the respondent obtained judgment against him. The respondent’s claim against the clinic was defended in full.

4. In 2007 the respondent underwent breast implant surgery. Subsequently she wished to have the implants removed and a breast uplift (mastopexy) performed. The respondent attended at the appellant’s clinic in October 2015 and arrangements were made for the procedure to take place in a hospital in Waterford, the following month, November 2015.

5. The respondent made arrangements with the clinic for pre and post-operative care. The respondent’s complaint centred on her post-surgical aftercare. The respondent underwent surgery on 7 November 2015. Following the surgery the respondent experienced a continuing bleed in her left breast and ooze was noted in both breasts. Having been reviewed by the first named defendant the respondent was returned to theatre in the early hours of the following morning for examination of both breasts under anaesthetic and the evacuation of a haematoma in the left breast. It should be noted that the respondent made no claim in respect of these surgical procedures.

6. The respondent was discharged from the hospital in the afternoon of the 9 November 2015. No arrangements were made for the respondent to have antibiotic cover on discharge. Unfortunately, the respondent developed an infection but antibiotic treatment only commenced on 12 November. The respondent maintained that she had been told by the first named defendant that she would receive a prescription for antibiotics on her discharge from the hospital. For a period of three days 9 – 12 November her infection was untreated by antibiotics.

The evidence: -

7. Expert evidence was given on behalf of the respondent by Mr. Sinclair, a consultant plastic and reconstructive surgeon practicing in Belfast. The appellant did not call any expert evidence.

8. Somewhat unusually there was no transcript of the evidence given by Mr. Sinclair. In her judgment the trial judge refers to this evidence in some detail. In para. 18 of her judgment she states: - “Mr. Sinclair’s evidence was challenged by senior counsel for the second defendant in cross-examination but was not contradicted by any alternative. I accept the evidence of Mr. Sinclair that it was more likely that the plaintiff developed infection due to the absence of a longer course of prophylactic antibiotics and that the particular circumstances of this plaintiff gave rise to the need for ongoing post-operative antibiotics and the failure to prescribe such a course to the plaintiff fell below the standard expected of her treating surgeon, the first defendant and breached his own guidelines contained in the extensive consent form ..”

9. There was some suggestion that the infection might have been present on the day of discharge. The evidence of this is to be found in the nursing notes of 9 November where it is recorded: - “Wound dressings had ooze present. No evidence of fresh blood. Reinforced with smi pad (??) and patient given some extra dressings to bring home. Patient complaining of heat coming from side of …”

10. Unfortunately this nursing note is incomplete but Mr. Sinclair was of the opinion that the presence of heat was an indication of infection being present. The trial judge did not make a finding on this. In any event, it is probably the case that not much turns on this as the requirement to give prophylactic antibiotic cover post-discharge was not dependent on an infection being present.

11. The assessment of damages for the injuries caused or contributed to by the failure to give prophylactic antibiotic cover presents difficulties. It is accepted that surgery of this nature will result in scarring and a degree of pain and suffering, so what the court has to consider is additional scarring, pain and suffering caused by the delay in treating the infection with antibiotics.

Judgment of the High Court: -

12. In her judgment the trial judge stated at paras. 44-45: -

“44. Mr. Sinclair outlined that it was generally accepted that infection led to delayed healing which can lead to worse scarring or where indicated it is impossible to precisely say what contribution the infection made to increased worse scarring and the contribution of the surgical scarring must be taken into account. In a follow-up letter of December 2017 to the plaintiff’s solicitor, he expressed his view that the amount of scarring is mainly due to the technique used’. In cross-examination, while he commented it was difficult to say, he acknowledged that the difference in size of the left and right areola (the left being larger) could have been stretched by the haematoma.

45. Infection appears to have been primarily in the plaintiff’s left breast and Mr. Sinclair gave evidence of the asymmetry between the two breasts, one breast having been more stretched and swollen, and there was asymmetry in the scarring – but again, fairly said that he can’t say what percentage is due to the original technique in surgery and what percentage is due to infection and delayed healing…”

13. Evidence was also given of an adverse impact on the respondent’s mental health. This evidence was given by Professor Jogin Thakore, Consultant Psychiatrist. However, the trial judge noted that Professor Thakore attributed any symptomology of a recognised psychiatric diagnosis with to the surgery which the respondent underwent rather than the after care or effects of ongoing infection. Thus, said evidence was not of assistance to the trial judge in her assessment of damages.

14. Unsurprisingly, the trial judge stated at para. 53: -

“53. Assessment of damages in this case is difficult. The Book of Quantum does not assist with scarring. The plaintiff’s surgical circumstances were not straightforward. The procedures themselves, and in particular the second surgery, would have left the plaintiff with a visible scar on each of her breasts in any event. The presence of a haematoma in the left breast contributed to additional stretching and differences with the right breast. I accept Mr. Sinclair’s evidence that affects of having ongoing infection, requiring multiple courses of antibiotics and which led to delayed healing of her surgical wounds, increased that scarring and in balance between the right and left breast.”

15. In assessing damages, the trial judge assessed that the “over and above scarring” was of the order of 35%. Having identified a percentage the trial judge sought to identify a figure that would represent full value general damages for breast scarring. The trial judge was referred to Reilly v. Moir & Ors. [2009] IEHC 164 where Peart J. awarded a sum of €75,000. Allowing for the passage of time since that case was decided the trial judge increased the figure to €90,000 and awarded the respondent €31,500 being 35% of that figure. In addition, the respondent was awarded the sum of €8,500 for the additional time and care expended in dealing with the prolonged infection making the total award of €40,000 for general damages. The respondent was also awarded 50% of the costs of the surgery being €3,500 together with an agreed sum for therapy being €960. Thus, the total award was €44,460 against both defendants, jointly and severally.

Notice of appeal: -

16. The appellant, the clinic, in its notice of appeal set out some nine grounds of appeal. These grounds centred on the approach taken by the High Court in the assessment of damages and the awarding to the respondent 50% of the costs of the surgery. In addition the appellant maintained that the High Court erred in failing to correctly determine the issue of costs and, in particular, failing to accede to its application for a costs differential order.

Consideration of appeal: -

17. The appellant relied considerably on the evidence given by Mr. Sinclair to the effect that it was impossible to precisely state what contribution the infection made to the increased scarring. It was submitted that in the absence of such expert evidence the trial judge was not entitled to arrive at the figure of 35% of a full value for scarring to the breasts.

18. This submission, if correct, would result in no general damages being awarded to the respondent notwithstanding a finding against the appellant of negligence and breach of duty with consequent loss and damage. To my mind, this submission over emphasises the role of the expert witness and underemphasises the role of the trial judge. I refer to the oft cited passage in the judgment of Finlay CJ in Best v. Wellcome Foundation Limited [1993] 3 IR

421 at p. 462: -

“I have carefully considered these conflicting cases and the evidence on which they were based, together with the evidence which various tests and documents show, and I have come to the following conclusions:

(1) I am satisfied that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise. The function which a court can and must perform in the trial of a case in order to achieve a just result is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and conflicting theories concerning a matter of this kind..”

19. The trial judge found that there was negligence on the part of the appellant that resulted in increased scarring and an imbalance between the right and left breast. The trial judge stated at para 54: - “Her scars are significant and noticeable.”

20. Unlike Best v Wellcome the Court was not faced with a dispute between experts but it was faced with the task of having to assess damages where a breach of duty had been identified with consequent injury. The only expert evidence available to the High Court was to the effect that it was not possible to state precisely what contribution the infection made to the increased scarring.

21. However, it is the duty of the Court to achieve a just result. Making no award of damages because of the absence of expert evidence on a precise percentage for contribution would clearly not be a just result. Looking at the evidence that was available to the Court, namely that the infection led to increased scarring, and viewing the scars themselves, the Court, applying reason and logic, was entitled to conclude that the contribution of the infection to the scarring was 35%.

22. Having fixed a percentage the next step for the court was to identify a figure for general damages that would represent 100%. The Court was entitled to rely on Reilly v. Moir & Ors where such an exercise had been carried out. In that case the trial judge (Peart J.) awarded the sum of €75,000. The trial judge adjusted this amount to take account for cost of living increases over some 15 years and arrived at the figure of €90,000, 35% of which amounted to €31,500.

23. The Court awarded the respondent 50% of the cost of the surgery she had paid to the clinic. To my mind this was reasonable as the respondent clearly did not get the service from the clinic which she had paid for. To this the sum of €8,500 was added for the additional time and care expended in dealing with the prolonged infection over the months following surgery. Allowing a further €960 for therapy the trial judge awarded the sum to the respondent of €44,460.

24. I am satisfied that the appellant has identified no error on the part of the trial judge in making the said award to the plaintiff.

Costs: -

25. As the award fell well within the jurisdiction of the Circuit Court the appellant sought a differential costs order pursuant to the provisions of s. 17(5) of the Courts Act. Brett J. held a costs hearing on 20 November 2024 and this Court has been provided with a transcript of same.

26. In the course of the hearing the trial judge enquired as to whether a warning letter on costs had been sent in advance. No such letter had been sent. The Court was referred to Moin v Sicika [2018] IECA 240, [2021] 3 IR 585. Reliance was placed on the following passage from the judgment of Peart J at p. 596: - “…Where the level of damages that can be expected are professionally considered to be within the level of the Circuit Court jurisdiction, whatever the plaintiff himself/herself may think should be awarded, serious consideration must be given to an application to remit to the lower court, or else face the risk of a differential costs order. That is the clear legislative intention of the Oireachtas.”

27. Counsel for the respondent opposed the making of a differential costs order relying, to a significant extent, on the complexities of the case it being a scarring case. Both parties accepted that the making of a differential costs order was a matter of judicial discretion.

28. In giving her ruling Brett J. gave a number of reasons for not making a differential costs order. Firstly, she stated: “I do accept that it was a set of circumstances whereby the initiation of the proceedings was justified in the High Court, in circumstances where the look of the scarring was not only quite obvious and therefore had a potential range in value, but also the plaintiff gave very clear evidence that what she had expected might have occurred, in terms of the photographs she received in advance, was quite different to what her final outcome was. Whilst some of that may have been attributed to the actual procedure that she underwent, and what it was likely and, of course she was aware in advance that she would have been left with some scarring, and she accepted all of that evidence. The potential range within it leads me to accept that it was understandable the case would have been initiated in the High Court. …”

Secondly, the trial judge stated: -

“The second reason is, it’s clear from the Moin v Sicika case and the O’Malley v McEvoy case, that both those cases involved a situation whereby there had been interaction between the defendant and the plaintiff in advance about the different jurisdiction. A differential costs order warning letter had been served and there had, in fact, been interaction as to whether or not it would have been appropriate to remit the matter to a Circuit Court, to the Circuit Court jurisdiction or at an earlier time. All of that is absent in this particular case. …”

29. It seems to me that the trial judge in refusing to make a differential costs order acted entirely within her discretion and I see no reason to disturb the order on costs that was made.

30. By reason of the foregoing I will dismiss the appeal. As for costs, the provisional view of the court is that, as the respondent has been entirely successful, that she is entitled to her costs of the appeal. Should the appellant wish to dispute this it may do so by way of written submissions (not in excess of 1,500 words) to be delivered within 14 days of the delivery of this judgment. The respondent may respond again, by way of written submissions (no longer than 1,500 words) within 14 days thereafter.

31. As this judgment is being delivered electronically, Faherty and MacGrath JJ. Have authorised me to record their agreement with it.